December 06, 2012
It appears that five of the 15 raises recently awarded to Guilford County
department heads were illegal. The process that brought those raises about has called into question whether some of the raises were given without the authority of the Guilford County
Board of Commissioners as required by law.Guilford County
administration handed out the raises to county department heads last month after a Thursday, Oct. 18 closed session of the county commissioners, during which the raises were supposedly approved in secret by the board.
Some of the 15 raises went to elected officials and to county department heads who work directly for the Board of Commissioners. In Guilford County
, the commissioners are the ones with the power to hire, fire and set salaries for the county manager, the county attorney, the clerk to the board, the finance director and the tax director.
The board also sets the salaries for two of the county's elected officials the sheriff and the register of deeds, who also got raises in this process.
Despite the fact that the salaries of those county employees are determined by the board, some of the salaries increased with no known approval or authorization by the board.
Not only was there not any vote at least not in public as required by law there wasn't even any public discussion of the raises by staff or commissioners. The only reason the raises are known is because The Rhinoceros Times found out about the pay increases and reported on them in the Thursday, Nov. 22 edition.
Since the raises became public knowledge some commissioners have been critical of the process questioning the timing and wisdom of the raises as well as the secretive nature by which they were doled out.
Some Guilford County
commissioners have also questioned the supposed "consensus" that staff claims was reached in closed session.
Regardless of what happened in the backroom meeting, what is well known is that the Guilford County
Board of Commissioners never voted publicly to take any action on the salaries.Guilford County
Attorney Mark Payne, when asked by email who has the authority to set the salaries of the sheriff and the register of deeds, as well as those department heads who work directly for the Board of Commissioners, responded, "The Board of Commissioners sets the salaries for elected officials and clerk, etc. County HR will annually provide data on market for those positions and periodically, such as this year, equity data for those positions."
In the Oct. 18 closed session, Guilford County
Assistant Manager Sharisse Fuller, who's also the county's human resources director, gave the presentation to the commissioners about the need for the raises. Fuller told the board the raises are not in fact "raises" but instead are "equity salary adjustments" that were made after the Guilford County
Human Resources Department studied the pay levels of the Guilford County
department heads and determined that the 15 directors were underpaid.
Fuller asserts that, if Guilford County
hadn't awarded the raises, the county would be open to a lawsuit from disgruntled directors who didn't think they were being paid fairly.
Payne said the closed session presentation by Fuller and the discussion that followed were allowable because it was "a liability discussion" since the raises were meant to prevent a lawsuit from department heads who weren't receiving equal pay.
"Our primary discussion was the liability issue about our possible exposure to a lawsuit," Payne said of the closed session. He added that there were some "personnel issues" as well which the commissioners can legally discuss in closed session.
Payne said this week that, when it came to the elected officials and the county directors who work directly for the board, those salaries can only be changed "with the board's OK."
Payne said the Board of Commissioners could take action without a vote, and he said that, in this case, no vote by the board was necessary to authorize those raises.
"Approval without formal action is enough," Payne said.
He said "a consensus" of commissioners reached in the back room was sufficient.
Amanda Martin, an attorney for the NC Press Association, said there's absolutely no justification for the commissioners to approve a salary increase in private. She said that must be done in the open with a vote.
Martin said the state's open meetings law speaks very clearly on this issue.
"It says that the public's business must take place in open session," Martin said. "It gives the exceptions, and it says anything that does not fall under those exceptions must take place in open session."
She said the Board of Commissioners is entitled to go into closed session to talk about employee performance.
"They can discuss, 'Do we like her? Is she doing a good job?'" Martin said.
However, she added, the commissioners cannot vote in private to give raises.
"When they make the decision to raise the salary, they must do that in open session," Martin said.
She said the state's open meetings law clearly applies whether you call the pay increases "raises" or "salary adjustments."
"It's essentially a change to the budget," she's said of all pay increases.
Martin said a backroom consensus of commissioners does not qualify as a legitimate vote. According to Martin, in a vote, each commissioner is accountable and on record as to where he or she stands.
"You say, 'I am Commissioner X, and I vote this way'" Martin said.
Frayda Bluestein, professor of public law and government with the NC Institute of Government, said that a board of commissioners can go into closed session to talk about "specific employees" and his or her performance, and, she added, they can even come to an agreement on how the board will vote once it holds a vote in public. However, she said, discussion of general county policy has to be public and, when it comes to raising salaries, she said, a board of commissioners is required by law to take that action in public.
"I don't see any authority for making the decision in closed session," Bluestein said.
NC General Statute 143-318.11 discusses the permitted purposes of closed sessions. That statute states, "It is the policy of this State that closed sessions shall be held only when required to permit a public body to act in the public interest as permitted in this section. A public body may hold a closed session and exclude the public only when a closed session is required."
It lists the permitted uses such as discussion on the relocation or expansion of business. The Guilford County
Board of Commissioners has those discussions in closed session periodically when considering incentives packages for businesses that locate or expand in the county. In those cases the board discusses the matter in private; however, they take a public vote later to grant any incentives.
There are other exceptions to the open meetings law such as discussing a personnel issue, keeping an impending award or honor for a county employee from being disclosed, or hearing a briefing on a terrorist attack....continued on page 2