Expert Warns Against Closed Talks on CAO

Plans for the Board of Supervisors to discuss expanding the top administrator’s powers behind closed doors may be illegal and would not serve the public’s interest, an expert on public meetings said Wednesday.

“If they want to give him more power and more money, it’s got to be done in the open,” said Jim Ewert, legal counsel for the California Newspaper Publishers Assn. “The public also should be involved in that process and have the opportunity to address the [board] on those points.”

A county prosecutor with expertise in open-meeting laws said there may be room for some preliminary discussions in private, so long as any extensive debate is conducted before the public.

“There’s a line and you have to be careful when you come up to it not to cross it,” said special Assistant Dist. Atty. Tom Harris.

“To discuss your willingness to consider changing the job description, that’s acceptable in closed session. But to discuss the merits of changing the job description, that’s for public debate.”

The board has contemplated changing the chief administrator’s role since the abrupt resignation of administrator David Baker last fall after only four days on the job.

In a letter, Baker told the board he lacked the power to control county government, and that his successor should be given more authority, particularly at a time when the county is under financial pressure. Baker complained that lower-ranking administrators went around the chief executive to cut side deals with the Board of Supervisors to increase their budgets. That practice endangered the county’s overall fiscal health.

Both Richard Wittenberg, the county’s administrator from 1979-95, and the current interim administrator, Harry Hufford, agree the scope of the administrator should be expanded.

The board has been planning to discuss the issue, and some members said it should be done in private. But state law controls what may or may not be discussed in secret. It allows, for instance, permanent or contract employees’ performance evaluations to be conducted in closed session.

But even in contract negotiations, Ewert said, the Ralph M. Brown Act, which governs public meetings, doesn’t allow supervisors to privately debate how to change an employee’s powers unless they are disciplining or demoting that employee. The point of the law, Ewert emphasized, is to make sure that matters of compelling public interest are discussed before the public.

Supervisor Frank Schillo said any discussion of expanding Hufford’s powers should be done in public.

Supervisor Kathy Long said Wednesday that if county lawyers advise the board to conduct the discussion in public, they will. “There’s nothing we’re trying to hide,” she said. “It’s not a matter of trying to be secretive about it.”

County counsel Jim McBride declined to specify how he would advise the board, but said some private discussions are appropriate. He said it would be appropriate for Hufford to tell the board privately what additional powers he would like, and also appropriate for the board to ask some follow-up questions. Any vote to extend the contract or expand Hufford’s power would be conducted in public, McBride said.

Supervisors Long and John Flynn have offered plans to extend Hufford’s contract to next April, and expand his powers. Those powers could include hiring and firing of department heads, greater control over the budget and the ability to reel in department heads and even supervisors who are disrupting the flow of county government.

Flynn earlier in the week accused Long of “political plagiarism” when she suggested a discussion of expanding Hufford’s powers in closed session. At the time, Flynn had said she was taking credit for his idea.

But on Wednesday, Flynn said he had never intended to debate how to expand Hufford’s power in private, only to privately evaluate Hufford’s performance and then bring the rest of the discussion before the public.

Hufford said it makes no difference to him how the debate proceeds. “I’ve been doing business in an open environment since I’ve been here,” he said. His contract expires in August, but supervisors have said they would like him to stay on longer to help the county stabilize its finances and get through a controversial plan that could take $260 million in tobacco settlement funds out of the county’s hands and give it to private hospitals.

Any changes to Hufford’s job are likely to be considered for his permanent successor. Although Schillo wants the board to act now to change the job description of the permanent administrator, other supervisors have said they would first like to see how such changes play out during Hufford’s tenure.

Supervisors each have indicated they would like to give the executive greater control of the county budget, including staff now controlled by the county auditor’s office. They also agree Hufford should have the ability to hire and fire county employees, including most department heads.

But Flynn objects to Long’s desire to make Hufford the sole spokesman on legislation affecting the county and on matters discussed in the board’s closed sessions.

Flynn also objects to a proposed requirement that supervisors run all policy ideas past Hufford before floating them in the press or the public.