Conducting The Public’s Business In Public

Someone who evidently doesn’t appreciate and understand how important it is to conduct the public’s business in front of the public, is Supervisor Maureen Mulheren, who serves as the Board’s Chair this year.

Twice during Tuesday’s (May 7^th) Board meeting, Mulheren revealed a woefully ill-informed understanding of Brown Act fundamentals.

Mulheren mangled the Brown Act, California’s Open Meeting Law, which requires that the public’s business be conducted in front of the public.

Here’s the story.

During another interminable discussion about dire County finances and preparation of the proposed 2024-25 budget, Supervisor Dan Gjerde referred to “a [middle management] position in Planning and Building Services (PBS) that was ‘elevated’ (salary increase) to deal with grants several years ago. That grant program was taken away [from PBS] and moved to another department (the CEO’s office). Yet that position is still there [in PBS] and the person holding it is still being paid as if the grant duties were still there as if they’re still managing the grant program. Why is that position still there? Why hasn’t that position been proposed for elimination in the budget process?”

Gjerde was clearly doing the right thing as the PBS position’s primary duties had been assigned to another department, thus rendering it a classic example of a “dead wood” job. For fiscal reasons it should be eliminated. That’s a no-brainer.

Except Mulheren went into quasi-ballistic mode.

In an admonishing tone, Mulheren snapped, “Supervisor Gjerde, I don’t think this discussion is appropriate for this time. We have meetings with our department heads every year. That’s a new policy that this Board gone to since I’ve been on this Board. I think it’s important and appropriate to handle personnel matters in closed session.”

Coast-side Supe Ted Williams immediately leapt to Gjerde’s defense, countering with, “I want to support Supervisor Gjerde and we shouldn’t be shutting down discussion about different budget ideas.”

Mulheren shot back, “I don’t think discussing personnel matters in public is appropriate. If my four colleagues disagree with me and hang their hats, I will continue to make sure our staff is being treated with respect.”

She couldn’t be more wrong. Here’s why.

First of all, Board discussion or action regarding potential elimination of a position for budgetary reasons is not a “personnel” issue as Mulheren alleges, and therefore cannot legally be handled in closed session under the Brown Act.

The Brown Act refers to both “positions” and “employees,” but the two nouns are not interchangeable. They are legally separate and distinct from one another.

Positions are not employees, and employees are not positions. Local government agencies create and approve job descriptions, duties, qualifications, pay rates, benefits, etc. for the positions they have created. All such action regarding positions must occur in open session with the public present.

The public may not be excluded from an open meeting, except as expressly authorized by the Brown Act. Exceptions to the open meeting requirement must be narrowly construed. There are only five such exceptions.

The sole exception where an individual employee’s situation may be handled in a closed session is to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee.

Here’s the actual Brown Act language:

Section 54957. (b) (1) Subject to paragraph (2), this chapter shall not be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.

That’s it. Those are the sole conditions whereby a local agency may handle a so-called “personnel” issue in a closed session that excludes the public.

Mulheren’s attempt to steer the discussion of what is an unambiguously open session budgetary matter behind closed doors is illegal on its face.

Gjerde was following open meeting laws by suggesting the position should be considered in open session for elimination, and Williams were absolutely correct that Mulheren “shouldn’t be shutting down discussion about different budget ideas.” 

Mulheren’s second Brown Act blunder arose during a convoluted Mulheren-led discussion regarding another multi-departmental consolidation.

Here’s the actual agenda item:

4i) Discussion and Possible Action Including Adoption of Resolution Amending the Position Allocation Table as Follows: Budget Unit 4050, Add 1.0FTE Director of Health Services, Salary Range $162,593.60- $197,620.80/Annually and Delete 1.0 FTE Director Behavioral Health, PN 4472; Budget Unit 4010, Delete 1.0 FTE Director Public Health, PN 4567.

Adam Gaska, of Redwood Valley, addressed this issue with a letter he sent to the Board of Supervisors subsequent to Tuesday’s meeting:

To the Board of Supervisors and Executive Office,

After watching the May 7th Board of Supervisors meeting, I was appalled at how item 4i was handled.

I feel it was highly inappropriate for the board chair to abuse her position as chair to reopen an agenda item that had already been heard and voted on to allow for additional comments from County staff that were disgruntled that their director did not receive a new position classification with accompanying raise in salary as they had so hoped.

I also find it highly unethical that a high-level manager(s) abused their position(s) to forcefully coerce their subordinates into signing a petition in support of a pay raise for a person who has control over their livelihood and career, then to take that petition to the board in an attempt to sway policy decisions.

I am requesting that the County initiate an outside investigation into this matter. Any and all managers or supervisors who participated in this effort should be interviewed and reprimanded appropriately.

I am also requesting a public response regarding the County’s plan of how they will be responding to this situation and how it will be avoided in the future.

Adam Gaska

Redwood Valley resident

During the meeting, Mulheren, Williams, and CEO Darcie Antle engaged in a disjointed and confusing discussion that included a motion to reconsider a motion approving the departmental merger, and an admission by Mulheren that the Board had illegally met in closed session to discuss this issue. 

In response to several questions and comments from Williams on this tangled merger muddle, Mulheren explained, “We’ve had closed session Department Head meetings where we had lots of opportunities to discuss this … I guess what you’re asking for, and just for clarification, is a more public presentation about the transition. This is an administrative record clean-up, and so if you’re looking for more information about the department(s), we can certainly take a different agenda item to bring back for the public.” 

Williams was having none of Mulheren’s jumbled “clarification”: “My impression was it was temporary, a plan would be coming as a concept of merging these [departments], but I have never seen a presentation of any such plan. What does it look like? I think the best approach is we make a plan, share it with the public, so the public has the right to comment, and then we vote. Doing it out of order where you make something permanent and then telling the public what we’re thinking about, is kind of too late for [the public] to comment and influence the process.”

Needless to state the obvious, but the reason it was “kind of too late for [the public] to comment and influence the process,” was because the proposed departmental merger and evidently some kind of plan, were illegally discussed in closed session where the public was excluded.

A perturbed Williams told Mulheren, “I just want to see a plan… You just don’t have your staff implement it and bring it to the Board to rubber stamp … We must already have a plan if we’re this far along and it’s decided. Is it possible to bring it up and show the Board?”

Mulheren dug a deeper hole surrounding the illegal closed session, retorting: “Supervisor Williams, it’s (the plan is) in your closed session items.”

Williams: “I can’t talk about closed session. I don’t keep closed session items, and to date I’ve never seen a comprehensive plan. I’ve seen a concept.”

The concept that the public is not seeing is their right under the Brown Act to have the public’s business conducted in front of the public.

I believe that Mulheren’s four colleagues understand that the foregoing open meeting law violations cannot occur again. But she must fall into line.

 If that’s not the case, legal action will be taken to remedy any and all violations. 

(Jim Shields is the Mendocino County Observer’s editor and publisher, observer@pacific.net, the long-time district manager of the Laytonville County Water District, and is also chairman of the Laytonville Area Municipal Advisory Council. Listen to his radio program “This and That” every Saturday at 12 noon on KPFN 105.1 FM, also streamed live: http://www.kpfn.org)