THAT WAS A SHAMEFUL DISCUSSION the Board had with Sheriff Kendall on Tuesday. And whatever the beef was, it wasn't very apparent. On the one hand, Kendall outright refused to consider alternatives to hiring expensive Ukiah attorney, Duncan James for $50K, insisting that he needed James’ particular brand of legal muscle to protect his budgeting, and to ensure that the Sheriff retains control over his own law enforcement computer system. The Sheriff made it clear he is still peeved that a minor vehicle mileage glitch at the motor pool somehow morphed into a call for an audit of his budget, and he’s irked that the Supervisors and the CEO are saying that court-covered bailiff costs are somehow part of his overrun. He said he didn’t want to run a law enforcement outfit with the threat of the budget sword coming down on him personally or on his staff after the fact from people who are far removed from the department, adding that such a cloud would undermine public safety if he had to worry about how much money it was costing every time an incident occurred.
ON THE OTHER HAND, the Supervisors seemed to think that the Sheriff is somehow wasting money and going over his budget without offering a single example of what they think the Sheriff is wasting money on.
HALF-HEARTED but well-meaning attempts by Supervisors McGourty, Haschak and Gjerde to postpone or negotiate the issue without hiring an attorney to mediate the increasingly bitter, but vague, legal-ish dispute between the Sheriff, the supervisors and CEO Angelo were unsuccessful because the Sheriff stood his ground, saying the Board had an attorney and he needed one too. County Counsel Christian Curtis said that the process could end up costing a quarter of a million dollars or more over as long as two years.
AT NO TIME, in the grilling of the Sheriff about his budget and the possibility of conducting some kind of audit, did any Supervisors ask any questions of the CEO or her budget staff for an opinion or to see if the dispute could be resolved on the spot — the discussion was only about the Sheriff and his $50k lawyer demand.
IN THE PAST, the Board just put in a knowingly low-ball place holder overtime budget in the hopes that they wouldn’t need too much more than that. Then after the usual overtime overrun, at the end of the year the books were magically balanced, funding from various under-runs was juggled, the overtime was funded, there was no problem, and nobody accused the Sheriff of a budget overrun. Besides, state and federal money usually covers at least some of whatever overtime the Sheriff expends on declared emergencies.
IF IT WAS US, we’d just tell the Sheriff that he can have what he asked for in his budget application and he can keep his own computer operation unless somebody can point out that something specific is unnecessary or too expensive. As far as we know, nobody is saying that Mendo is overpoliced or that any of the Sheriff’s costs are excessive or unreasonable.
CHAIR DAN GJERDE summed up the Board’s position, saying that apparently nobody on the Board would authorize hiring Mr. James because his costs are high and he apparently is suing the County on “another matter” (former Ag Commissioner Harindar Grewal’s wrongful termination suit). So the Board asked County Counsel to suggest a couple of other slightly less costly out-of-county law firms and bring them back to the Board on August 3. And then sometime after that the question of which lawyer would be hired would “go before the Presiding Judge” later in August and the judge would supposedly pick the Sheriff’s attorney.
GREAT WORK MENDO! Wasting $50k on outside counsel, and initiating a costly open-ended legal dispute on an unnecessary inside-Mendo dispute that should not have arisen in the first place and probably wouldn’t have if the Supes hadn’t huffed and puffed about holding Department heads personally responsible for budget overruns. Meanwhile, there is the usual in-house maneuvering to create an overblown Countywide IT Chief job for a loyal CEO deputy which the Sheriff is afraid might endanger the confidentiality of some of his law enforcement information and which appears to have been the source of the proposal to incorporate the Sheriff’s computer with the rest of the County’s system.
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FORMER SUPERVISOR JOHN MCCOWEN on the dispute between the Supervisors, the CEO and the Sheriff:
I’ll start with my conclusion and then I’ll give some background.
This is a fight the Board should not be in and can’t win. The Board cannot underfund the Sheriff’s Office budget in a way that hampers his investigative authority as mandated by the State Constitution then turn around and bill him for any overruns. I believe the Board has been set up by the CEO who is angry at the Sheriff and by County Counsel who takes direction from the CEO, not the Board that hired him.
The role of County Counsel is to protect the County from liability not create it. Curtis had a duty to fully advise the Board but failed to do so. The problem is that County Counsel Curtis does not think he works for the Board of Supervisors. Whether motivated by fear, perceived self-interest or any other consideration, Curtis takes his direction primarily from CEO Angelo. Because Angelo is at odds with the Sheriff, Curtis has allowed himself to be used in setting up the Board.
This is a continuation of a pattern of unethical behavior by the CEO and County Counsel Curtis who have created a lose, lose, lose situation. This fight will drive unnecessary expense onto the County; destabilize the working relationships of the County partners; tarnish the reputations of all involved (some more than others) and reinforce the negative opinions people have of County government. This is a self-inflicted injury to the County that could have been avoided if County Counsel was ethical and competent.
Background: Earlier this year Sheriff Kendall stated he would no longer meet with the CEO because he could not rely on what she was telling him. Kendall’s statement crossed the line of no return. The CEO will not tolerate anyone who questions her or who crosses her.
At a budget hearing in June Assistant CEO Darcie Antle included a slide in her presentation citing State law that a department head who went over budget could be held personally liable. I don’t know who put that slide in but it could only have gone in with CEO Angelo’s approval.
Supervisor Williams picked up on that theme during discussion, particularly with the Sheriff’s Office and sought agreement that the Sheriff’s Office would stay within budget. Undersheriff Brewster said he would like to do so but could not knowing the budget was structurally underfunded.
The Sheriff’s Office budget has been structurally underfunded for decades, principally in overtime. The overruns for the Sheriff’s Office (and for other departments that are over budget) are zeroed out at year end using budgeted but unspent funds from other departments. After all the overruns are accounted for the County still has a year end fund balance of several million dollars.
The only thing that has changed is the CEO’s animosity for the Sheriff and the threat that he be held personally liable for any cost overruns, something that I don’t believe has previously been suggested for any department head. That being said, the cited State law section theoretically could be used to bill department heads who go over budget but there are exceptions for court orders, emergencies, or, “as otherwise provided for by law.”
The State Constitution says that nothing shall impede the investigative duty of the Sheriff nor the investigative and prosecutorial duty of the District Attorney. This section, which only applies to the Sheriff and DA, is “otherwise provided for by law” and clearly overrides the threat to bill either the Sheriff or DA for budget overruns if the funds were needed to fulfill their constitutionally mandated duties.
County Counsel Curtis, who created this situation by failing to properly advise the Board, acknowledges that a conflict exists between the Board and the Sheriff. He also acknowledges that the Sheriff is entitled to independent legal representation that the Sheriff has confidence in. Except Curtis wants to hand pick the Sheriff’s attorney. I believe the Sheriff was right to stand his ground on that point. Curtis also estimates the ultimate cost for the Sheriff’s legal representation will be $250,000.
County Counsel routinely hires expensive outside legal counsel to handle County litigation so it will be no surprise if he does so here. One of the ironies involved is that County Counsel routinely goes over budget. Maybe the Board should bill County Counsel for his budget overruns?
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The Sheriff’s Structural Imbalance
AVA readers may recall that a couple of weeks ago we sent a series of budget questions to CEO Carmel Angelo. After complaining that even being asked to answer a few basic questions was one of the reasons CEO Angelo and her staff have not published monthly departmental budget vs. actual info in the past, the CEO referred to the questions concerning the Sheriff’s budget and alleged over-runs to the Sheriff.
We had asked: “Q. The Sheriff’s Department is listed as being about $620k over his $14.5 million budget (not counting the jail which is running a little under budget). [At the end of May, 2021, eleven months into the 12-month fiscal year] Explanation: “Overtime and extra help greater than budget.” Again, how much of the overrun is overtime and how much is extra help and what was the extra help for? Also, what is the final Sheriff’s budget for the 2021/2022 fiscal year and how much overtime and extra help is budgeted?”
CEO ANGELO REPLIED: “Based on YTD May 2021 actuals, Overtime was over budget by $983,480. Based on YTD May 2021 actuals, Extra Help was over budget by $254,064. The question relating to the need for extra help, will need to be answered by the Sheriff's Office. Based on 3rd quarter projections, Sheriff's Office is projecting to be over budget by $1.9M at the end of FY20-21. FY21/22 Budget - General Fund impact $16,125,476: OT = $1,161,185. Extra Help = $250,00.”
On Friday the Sheriff answered our questions relating to the Sheriff’s budget.
“The CEO’s office stated we were listed as being about $620k over budget.
At third quarter, we reported to the Executive Office (in our required reporting documents) that we would be $1.9 million over budget at the end of the fiscal year and in reviewing our Munis accounting software we are in fact currently $2.8 million over budget.
There will be some revenues coming in still at year-end (4th quarter realignment from CCP, transfers from fund accounts, etc.) which will reduce this amount, but I imagine the budget will likely be about $1.9 million over, as we projected, possibly more.
Only $750k in OT was budgeted for FY 20-21, which, as we know, based on the past four fiscal years of actuals, appears to fall short of being a realistic number. The lowest our OT has come in over four fiscal years is $1.4 million and a high of $1.8 million, therefore we were already operating at a deficit of about $900k, just in OT expenses which this past year topped $2 million.
MOU [Memorandum of Understanding] salary increases approved by the BOS [with the two law enforcement bargaining units] have also had a domino effect on Overtime and all other personnel related expenses.
Our use of Extra-Help personnel used in a variety of jobs, is primarily Bailiffs which is a duty mandated to the sheriff and actually saves us money because we don't have to pay a lot of benefits associated with these positions. We also use Extra-Help office staff and this is primarily due to the difficulty we've had hiring and retaining staff as well as coverage for staff who are out. The issues with hiring are mostly due to the fact we have a stringent background process, and normally lower pay for the lower level positions. We have had some personnel out due to family illness, injuries, deaths of family members, Covid, and we recently had an employee lose her home in a fire.
We currently have 14 extra help employees which have cost us an average of approximately $27,000 per year which is much more affordable than a full weighted salary [i.e., with full benefits] which normally runs over $100,000 per year. These extra help folks fill the following positions.
1 Corrections officer utilized for transportation.
2 records personnel.
1 paid reserve assigned to marijuana.
1 background investigator for hiring.
1 person to assist in moving vehicles, including the SWAT vehicle for deployment, moving trailers and communications equipment for operations and moving vehicles for build outs etc at our contractor who builds out patrol cars in the Sacramento area. He also has a special licensing to move vehicle and trailers requiring special licensing.
Only $75k was budgeted for our extra help positions which again is an unrealistic number based on the past 4 fiscal years (lowest being $213k and highest over $500k). Actual number for FY 20-21 is $381k.
The CEO’s office is correct in their statement. It is difficult to provide an accounting of the [final] overage right now because the year is coming to a close, however it has not closed and we are still receiving revenues as we close out the books and report to the auditor.
There is the potential for revenues to come in higher or lower than projected, especially those related to sales tax and other revenues that are tied to the economy (decreased sales, incomes due to Covid, or an increase due to resiliency). The revenues will likely reduce the overage significantly, but the possibility of us landing somewhere in the neighborhood of the $1.9 million overage projected is looking pretty close.
PS. We are given a net county cost [from the CEO’s Office] and have to build a budget that fits within it. Chris Dewey did the [Sheriff’s] budget last year; our new fiscal manager worked up this year’s budget which came out about $1.5 million under what we had asked for.”
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MS NOTES: And that last point is what the Sheriff was referring to when he said that he needed an attorney to make the basic case that the County/CEO/Board can’t give him a “structurally imbalanced budget” every year, that public safety is a priority. If the Sheriff makes a good faith effort to conform to the CEO’s assigned “net county cost”— as the other departments do — and then goes over that assigned number because of ordinary but unplanned exigencies of the relatively large and Sheriff’s operation as described above, the Sheriff does not want to be told he might get a bill for the overage that is more than the value of his house. And so far, no one has come up with a way to budget for this rather predictable situation. Of course, the Board or the CEO could allocate a certain designated Sheriff’s reserve for the Sheriff’s department which would require a Board vote to dip into based on a late-in-the-year submission from the Sheriff as his costs accumulate. (They have plenty of reserves.) But such simple budget devices are probably beyond Mendocino County.
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WE SPOKE TO FORMER THIRD DISTRICT SUPERVISOR JOHN PINCHES last week, soon after his phone service was restored after more than a year of outage at his remote Island Mountain ranch northeast of Laytonville. Predictably, the first subject he raised was County roads:
“John Haschak called me up the other day to ask for some advice. I gave him a piece of my mind and told him that in the Third District roads are the most important issue. Everybody in the Third District uses the County roads. They go to work, they go to church, they go to sell their pot or whatever. There are about 1020 miles of County roads and well over 200 miles in the Third District. Very little of the County roads are paved, And the ones they call ‘paved’ are actually just chip-sealed. Haschak began to tell me about Howard Dashiell's excuses -- no water, no money, and everything. That's all BS. The Laytonville Water District sells truckloads of water to pot growers every day. The dust coat job Howard says he can’t do wouldn't require anywhere near that much water. Remember, once they water and dust coat that road they would be done with it until the winter. No more watering. no more grading. So it actually saves water, that's an important point.
“They should not just take Howard's word for this water problem. The Supervisors don't do any questioning or follow-up on anything they're told. They just take the staff's word for everything. I told Haschak that he had to step up to the plate. Roads are the most important thing in his District. Roads are used day and night, not just a few hours in the day time.
“In the Bell Springs and Spy Rock area the County roads are terrible. The County has abandoned them. They do nothing on those roads. The County of Mendocino owns some of the best road maintenance equipment in the area. No contractor in Mendocino County has the equipment that Mendocino County does. And most of the time it just sits.
“And there’s plenty of money for this work. There's the big road fund. Besides all the general fund money and reserves plus the new money from PG&E and President Biden, there is also the County’s huge investment pool which these days with the stock market where it is should be more than half a billion dollars. Money is not the issue. It's doing something, making somebody do something.
“Why don't they ask Howard Dashiell how much money is left over in the transportation account? They have the final numbers of the fund balance in the various departments including the road fund. If history is any guide it's at least $8 million or more. Those monies are accumulated in the road fund, they don't go back into the general fund if it is not spent. Those are special designated road funds. Those are unrestricted road dollars, not designated for any specific project. The projects are separate and funded directly. There was a slip out on the Bell Springs Road back during the last big rains in 2017 that they were supposed to be working on. FEMA is about five years behind in their reimbursements, but the County should be working on that and filing for the reimbursements. The County Executive office does not keep track of FEMA reimbursements for those projects. That information is kept within the Department of Transportation only. And they won't give it out. The Auditor doesn't even know about it. It's the Budge Campbell situation deju vu all over again.”
ms notes: the long-serving Budge Campbell was finishing his career as Mendo’s Transportation Director when Pinches was first elected in the mid-1990s. He retired after the dust-up with Pinches over the road fund.
“When I was first elected I made a point of getting that road fund money released and spent on actual roadwork. After I dug up those numbers, the late Seiji Sugawara [former First District Supervisor] said to Budge, ‘It looks like you've been pulling the wool over our eyes’ after I got the information out. I will never forget that. First you get the information, then you educate the board, then you get the other two or more votes you need and you get things done.
“The supervisors need to make roads a priority. They need to get the information about what's in the road fund and make it public and stop listening to excuses. Especially in the Third District. In the North County almost all the roads besides 101 are County roads.”