As it turns out, on Tuesday, after the Board violated the Brown Act by approving the County Counsel’s pay raise on the consent calendar, apparently on the advice of County Counsel Curtis himself, the man hoping to receive the largest raise in County history.
But later, around 7pm, the Supervisors acknowledged their error and attempted to fix it.
Supervisor Gjerde: “It has been brought to the Board's attention that we need to revisit a consent calendar item, consent calendar item 4c, that was the contract for County Counsel. To ensure compliance with the Brown Act, the board needs to revisit consent calendar item 4c and that is approval of an employment agreement between Christian M. Curtis to serve as County Counsel for the term of August 9, 2020 to August 8, 2024 including compensation effective December 26, 2021 in the amount of $192,136 annually and authorized to sign same. We inadvertently skipped one item in recording as to this item. In accordance with Government Code section 54953(c)3 on behalf of the Board of Supervisors I will briefly summarize the compensation and benefits for the public before we re-vote on this item. The compensation is $192,136 annually payable on a biweekly basis. Additionally, in December of 2022 to December 2023 the County will adjust the salary to ensure that County Counsel's compensation tracks 15% above the Assistant County Counsel classification and pay range but shall not exceed 15% of that range. The County Counsel's benefits include enrollment in the County retirement plan and with the benefits provided in the department head MOU and is eligible to enroll in the county's health and and life insurance benefits. Public comment has already been offered on this item and with this additional information entered into the record and stated for everybody with hearing impairments to understand, do we have a motion to approve item 4c?”
Supervisor McGourty so moved. Haschak seconded. The item was approved unanimously.
But in doing so the Supervisors violated the Brown Act again, and they violated their own “Rules of Procedure.”
Rules of Procedure:
Rule 26. Motion to Rescind— A motion to rescind any action or motion shall require four-fifths vote unless notice has been given at the previous meeting, either verbally or in writing. If notice has been given, the motion requires only a majority vote of all the members of the Board. A motion to rescind is not in order if action has already been taken which cannot be undone.
Rule 27. Motion to Reconsider— Any member of the Board who votes in the majority on a question, as well as any member who was absent, is eligible to make a motion to reconsider. A motion to reconsider shall be in order during the meeting at which the action to be reconsidered took place, provided members of the public in attendance during the original action are still present in the Board chamber. In all other cases, motions for reconsideration must be placed on a future agenda for action. Unless a member was absent, a motion to reconsider must be placed on the agenda for the next regular Board meeting. A member who was absent must place a motion to reconsider on the agenda for the next regular Board meeting after the regular Board meeting at which that member is in attendance. A motion to reconsider shall require a majority vote. A motion to reconsider, if lost, shall not be renewed nor shall any subject be a second time reconsidered within twelve (12) months, except by a 4/5th vote of the Board.
To properly correct the consent calendar error, the Supervisors have to rescind the earlier vote to approve the Consent Calendar with the County Counsel’s raise, then re-agendize the consent calendar without the County Counsel’s raise and re-agendize the proposed raise for reconsideration in accordance with Government Code with proper public notice and opportunity for public comment and in accordance with their own Rules of Procedure.
And that’s why we filed a formal Brown Act Violation complaint demanding that the Board at least follow the rules.
Of course, this contorted procedural folderol isn’t the real issue; it’s just that it’s the only legal angle the public can take to protect ourselves from the County Counsel's big gift to himself. The irony of the underlying situation, however, is impossible to ignore. Here we have County Counsel essentially attempting to illegally sneak a hefty pay raise for himself through the Board and the public by incorrectly putting the raise on the consent agenda only to find out that the very County Counsel the Board apparently wants to give a large pay increase to can’t even properly agendize his own raise!
The Supervisors then had to embarrass themselves by revisiting the item to try to correct the County Counsel’s error, only to incorrectly make the correction.
Further, we think the provision in the pay raise item which ties the County Counsel’s pay to 15% more than his own subordinate’s pay is also illegal, not to mention unethical. Essentially, this provision means that the public official can give himself a raise by giving his subordinate a raise, which in turn would violate Government Code which requires all raises for government officials and department heads to be agendized and individually voted on in open session.
Of course, we don't know how the County plans to respond to our Brown Act violation/correct and cure notice. But if it turns out that they do the right thing and rescind and correct the consent calendar item and/or the 15%-more-than-the-subordinate provision, it would be the first time in Mendocino County history that a Brown Act complaint has been successful.
The last time a formal Brown Act complaint was filed against the Board of Supervisors was back in the Timber Wars days in the 1990s when three Supervisors drove to a Sacramento Board of Forestry meeting in the same car. The complaint alleged that because there were three supervisors (a quorum) in the car, the trip was a Board meeting which was not property noticed. At that time DA Susan Massini ruled that the Board had not “intended” to violate the Brown Act and therefore no corrective action was required.
In the current case, there’s no such argument because by correcting the item later in the day, they admitted that they had violated the Brown Act. Now it’s just a matter of what is required to correct it.
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