Running in Circles

I spoke with CEO Angelo in her office in 2019. I also spoke with members of the CEO’s budget staff. Despite the free lunch, I think I can write objectively about what has since ensued. I make the above confession in the same spirit of disclosure that Presiding Judge Ann Moorman made at the opening of one of her recent “ex parte” hearings in the matter of Sheriff Kendall v. Mendocino County:

“I do want to say at the outset that I want to disclose I saw and interacted with Mr. McMullen on Saturday night at a musical event hosted by Nelson Vineyards, and it does not give me cause or pause to believe that I cannot be fair in this proceeding. But I did see Mr. McMullen, and I elected to say hello to he and his wife, and exchanged general pleasantries, and, of course advised him that I would be disclosing the interaction today on the record. In addition, Mr. McMullen and I also belong to the same Crossfit gym. While we do not attend at the same time, we belong to the same -- they call them boxes. So we belong to the same box. And, occasionally, we cross paths, but we do not attend classes together. So with those disclosures in mind, I am prepared to go forward today.”

But before we get into the hearing, let’s review some relevant history.

For years the Sheriff’s overtime budget was underfunded so the Supervisors could claim they had approved a “balanced budget,” knowing that the Sheriff would exceed the overtime budget by whatever it took, depending on the number of manpower-intensive serious crimes that occurred, also dependent on overall availability of that manpower. Some deputies became known for volunteering for overtime with a few earning more money than their bosses. But nobody ever complained because the overtime was all spent for legitimate law enforcement.

The Board and the budget people just sat back and waited to see how much overtime was accumulated and then the CEO and the Auditor magically found the money to cover it, typically through under-runs in other General Fund departments.

In 2018, when the CEO allocated a gratuitously provocative zero to the Sheriff’s overtime, then-Third District Supe Georgeanne Croskey pointed out that zero was ridiculous because history shows that the Sheriff’s overtime had been running around $1.6 million.

From our coverage at that time:

Supervisor McCowen: “It is not realistic to have a zero line item for overtime. The CEO is suggesting a $300,000 if we were to put a number in there. I do think that's conservative. As we have all said we don't know what may happen as the year goes forward. But we know we are going to have some overtime just in the normal course of events. If there is no disaster or there are no tragic car wrecks for complicated homicides that we naturally would drive further over time. If we have none of that we still know that we are going to have it. So perhaps between now and tomorrow the executive office and the sheriff can work to identify what other line items in the budget could potentially reduce to at least put in the $300,000 for overtime which would be kind of the minimum realistic figure I believe.”

Angelo: “I'm fine with that. If that's the board direction we will do that. And then – … What I have noticed in the last 10 years with the sheriff's office overtime, which of course you have noticed as well, is when the positions and critical positions are really low obviously that's when we have more overtime. What I am also seeing is a real effort on the part of the Sheriff's office, particularly with various funding streams either being diminished or going away [probably a reference to a significant decrease in pot-related asset forfeiture plus the approximately $1 million cannabis permit program deficit] there is a real effort to focus on the overtime. The positions – he [the Sheriff] has his positions filled now. If we were going to budget overtime right now in the Sheriff's office we would have budgeted approximately $300,000. With what happens with the sheriff's office, it is, it's just, you know, you never know what the next crisis is going to be. So I'm fairly confident. I have to say that we have had problems in dealing with the Sheriff's budget. He obviously has managed his budget very well. And he has helped. So we can talk about this tomorrow when this board is ready to make recommendations and make decisions on this. If we are going to budget I would say that we would have budgeted approximately $300,000. The other thing is that we can't really say today as far as what happens over the next 12 months that it is possible that there are other funding streams for overtime that we just -- we just -- you know -- we just don't have right now, or don't have the ability to say right now. Honestly, in seeing the Sheriff’s budget I don't have a problem with this. Clearly you are the decision-makers and if you do [decide] we will rearrange the money.”

Deputy CEO Janelle Rau said they put zero overtime in the budget because they plan to keep close track of the department’s overtime.

Rau: “I have been working with the Sheriff's office on their budget. They did go through some budget balancing strategies [translation: they made some ridiculous assumptions]. And working with their budget officer Kyra [the Sheriff’s budget analyst] and the Sheriff himself they did do some reductions to meet net County cost. [Arbitrary cuts.] With that is an understanding that the executive office is going to be working with them hand in hand and in turn with the board, meaning that we will be coming to you -- and there are descriptions in the information to you -- monthly, not quarterly. We will be coming to you with adjustments as they are necessary. We have made that arrangement with the Sheriff to say, you let us know when there is an issue so we will have discovered that between all of us here if there is one. Overtime was one of them. We knew it was out there. It is a strategy that we will watch. And that we will look at their vacancy factors as well to see in their total 1000 series [general fund] where they will be. It's a different approach this year. But we have been working on it effectively. Kyra and I started working on it this last year in July to make sure we could come here and feel good about what we are giving you and actually give you the confidence that we will be informing you as we go along as well.”

So the CEO’s Office and the Sheriff are going to start providing monthly reports on overtime! Does anybody believe that? They should have been doing routine monthly overtime tracking all along, and now all of a sudden they’re going to start monthly reporting? 

Never happen. And, as predicted, it never has happened.

Mendo just does not do monthly budget and staff reporting. In all likelihood they will ignore the overtime as it routinely goes over-budget like they do everything else and wait until it’s a problem, then make some verifiably untrue declaration like the magic assumption change from 5% position vacancy to 10% position vacancy and cover the overtime like they always do by shorting other already short departments.

Supervisor Croskey wanted to hope — in spite of her gut knowledge that even $300k is nothing more than a place holder figure — that this still-ridiculous $300k approach would help.

Croskey: “That helps. I certainly have concerns. But we have nothing budgeted for overtime. It's not as if overtime won't happen. I understand we will be looking at it as we go. But it's — it's not as if — I don't know — I have concerns that we are pretending that that $1.6 million is — that we will find a way as we go. But…” [Shrugs.]

This was the first meeting in June of 2018. We said we’d be looking closely at the first July agenda (July 10, to be exact) to see what kind of monthly overtime tracking Ms. Rau, Ms. Angelo, Sheriff Allman and the crew actually come up with.

* * *

That was then, now is now.

When we said “Never happen” back in 2018, we were right. Nobody tracked Sheriff’s overtime, no reports were made. Nobody even asked about it.

And as usual, after not tracking the Sheriff’s OT as promised, the County magically covered the overtime and, using Mendo’s tried and true approach to most problems — Mendo ignored the issue and nobody mentioned for a couple more years.

Then last summer Assistant CEO Darcie Antle reminded the Board of an obscure Government Code provision that “California state government code and county policy — that the county has never enforced — puts personal responsibility on the official authorizing the obligation. It is in County Policy 1, section 1.1, Sources of Authority and Priorities and in the case of a conflict.”

Supervisor Ted Williams immediately asked, “Can we decide today to follow this?”

Supervisor Dan Gjerde quickly agreed: “If it’s county code, I don't know why it's not being followed already.”

Williams: “Maybe we can give direction that we expect county code to be followed.”

CEO Carmel Angelo posed this hypothetical to the Supervisors: “Say the Sheriff comes in $1.6 million over budget. Am I going to send him a bill for $1.6 million? And when he says he won't pay it, and he goes public, is the board going to say he's going to have to put up $1.6 million?”

CEO Angelo clarified.: “When I started in 2007 [as Health and Human Services Director] this was one of the policies that was explained to me by then interim CEO Al Beltrami. All department heads were very well aware of this policy. This policy has never been enforced. If this board would like me as the executive officer to enforce it, what we would do is, we know when a department, whether it's run by a department head or elected official, as you know when we come back every quarter we can project if the department is going to be over budget. … But we could have them sign that they have received the policy and they are aware of it and they understand it and we could attempt to enforce it. That's the best I can say we could do.”

Williams: “I support that. Let's do it. … I am reluctant to not follow state law as far as budgeting. It's not really a budget if you set a limit and then department heads are able to spent outside of the limit.”

Williams and Gjerde thus demonstrated their fundamental misunderstanding of what a budget is. A budget is a plan, not a limit, not a cap. If properly managed, budgets set priorities, keep track of revenues and expenses, and allow management to adjust expenses as experience indicates. Overruns and under runs are common and that’s why budgets are adjusted based on experience and careful tracking.

Gjerde piled on: “It is pretty drastic. But on the other hand management employees and department heads and deputy department heads are paid top dollar — they may not think that but I think they are by Mendocino County standards — and with that comes responsibility. So I don't think it's that drastic in some respects. I think people should be able to manage their budget one way or the other and they need to make choices.”

County Counsel Christian Curtis: “This is not just county policy, it is state law.”

Curtis tried to summarize the budget process using words like “expectation,” but failed. 

Curtis’s office is one of the offices that routinely goes over budget because he and the CEO hand off major county legal matters off to expensive outside lawyers. But nobody threatened to hold Mr. Curtis responsible for his overruns, only the Sheriff was singled out.

And Curtis confirmed that the policy applies to elected officials “like the Sheriff.”

Then Williams got on his high horse: “It's not our money, it's the people's money. State law gives the authority to budget the people's money to the supervisors. It's a mistake to allow these overages. The board is never in a position to say, No, you cannot spend that money. It's already been spent. We need to align with state law. … This is not for us to decide. This is state law. This is what we need to follow. We don't have the liberty to say that a department has a tight budget and decides to run over. We have to live within the budgeting process. If you have $100 in your budget, you don't spend more than $100. Or you come to the board through the process and the board will approve it.”

That was back in June of this year. Was anybody surprised that Sheriff Matt Kendall took this inane discussion as a threat to send him a bill for maybe over a million dollars in overtime that he would have to pay himself? After all, two Supes had called for its enforcement and the other three didn’t object.

At about the same time Kendall became aware that CEO Angelo was maneuvering to consolidate the County’s computers, including the Sheriff’s, and had been taking steps to absorb the Sheriff’s computer equipment and staff into a new larger IT department headed by her friend Deputy CEO Janelle Rau. According to sworn declarations, the Sheriff and his computer staff became aware of these efforts as computer staff positions and accompanying budgets were quietly proposed to be moved out of the Sheriff’s department.

The Sheriff balked at that too. Law enforcement computer systems cannot be compromised by giving them to non-law enforcement staffers.

So in August, the Sheriff filed a lawsuit in Mendocino Superior Court asking Presiding Judge Ann Moorman to officially declare a “conflict” with the County Counsel’s office based on the County Counsel’s office’s split allegiances: County Counsel can’t advise the Sheriff on legalities while also advising the CEO and the Board. An official conflict would mean that the County would have to pay for the Sheriff’s own attorney, and not just any attorney, Kendall insisted that he would only accept the Duncan James law firm out of Ukiah, a firm whose rates are higher than comparable out-of-county law firms.

The first legal volley was fired when Duncan James filed for an “ex parte” hearing on the dispute. When we looked it up, we found it amusing that an “ex parte” hearing is typically requested “when one of the parties seeks urgent court intervention.”

“Urgent intervention”? In Mendo? Please.

Since that filing, the lawyers have been un-urgently piling on with declarations and affidavits and motions and more hearings…

After the first few flurries of filings, Judge Moorman told a lawyer named Donald McMullen who works for Duncan James, “Originally, the way it was phrased in the moving papers was as a takeover of the Sheriff's IT department. and I’ll be honest with you, I didn't really care for the hyperbole.”

Oh, but it wasn’t hyperbole. That’s exactly what it was. The CEO and her staff called it “consolidation,” but that was a thinly veiled understatement designed to hide the fact that it was an attempted takeover.

But the issue at hand in court is whether there’s a conflict, whether the Sheriff can hire his own attorney and then present independent legal opinions on such subjects as the Sheriff’s budget and his computers to the Board.

But according to the transcripts from the ex parte hearings, that question has already been answered — as the lawyers say, it’s moot.

Judge Moorman: “So one of [the issues] is the consolidation of the Sheriff's IT with the County IT department, and it appeared to me both from some statements made on paper in terms of filings in this case, as well as statements made during proceedings that I've now taken judicial notice of, that there was -- that the Board of Supervisors agreed that there is a conflict of interest in your office's ability to represent the Sheriff on this issue. Do you agree?”

County Counsel Curtis: “Yes, I would concur with that.”

So why are they even in court? Apparently because the “conflict” issue has devolved into whether Kendall can make the County pay for Duncan James and his legal staff.

The sheer level of absurdity on top of wasteful, pointless, expensive absurdity is hard to fathom from the outside looking in.

Not only that, but apparently County Counsel Curtis doesn’t dispute the Sheriff’s need for overtime. “If we're talking about an expense incurring overtime,” Curtis told Moorman, “I'd say this without having dug too deep into the particular question. But it's quite likely that I'm going to be advising the Sheriff and the Board that, yes, the Sheriff has the authority to go ahead and incur these overtime costs. Yes, Board, you have to authorize them. I'd also be talking to the Sheriff, you also have an obligation to go ahead and tell the Board. Maybe not when the costs are incurred, but during the portion of the recording cycle that you've gone over budget for these reasons, and that the counsel has opined that that is within the scope of the Sheriff's authority. If the Board decides at that point that they disagree with me, I can't represent them against the Sheriff because I'm conflicted out.”

Which brings us back to 2018 when the CEO promised to keep track of overtime but never did. If they had simply done what they promised to do and set up a notice and tracking system for Sheriff’s overtime back then, none of this wasteful folderol would have even come up.

Toward the end of the ex parte hearings in September, Judge Moorman tipped her hand, telling the lawyers:

“There is a conflict of interest facing the office of County Counsel on the issue of whether and to what extent the Board of Supervisors can lawfully consolidate the Sheriff's information and technology systems department within the broader county information services department, including but not limited to data access, collection, preservation and sharing, and email. This conflict of interest includes advising the Sheriff regarding the law and possible avenues of recourse to resist such efforts and/or insist upon an independent system with adequate staffing and financing in light of statutory and constitutional mandates. That is the conflict of interest I'm finding that I'm going to say pertains to the IT issue. The budget issue, I'm going to find a conflict of interest on. But I want to think a little bit more about what, precisely, it is. And I’ll set a future hearing if I think I need one. Otherwise, you'll get a written ruling from me in pretty short order.”

It’s now more than six weeks later and no written ruling has been issued. But even when it is, nothing much will have been accomplished. The Supervisors will continue letting the CEO squeeze the Sheriff, no mechanism for keeping track of overtime will be set up, the Sheriff will probably keep asking for pricy advice from Duncan James, the County Counsel will respond with a muddled opinion, presumably sort of agreeing with the Sheriff, and the issue that Williams, Gjerde and the Board stupidly provoked with Sheriff will be right back where they started… Well, not quite where they started: several hundred thousand dollars in lawyers and court costs and lots of staff time will have been frittered away with more to come.