Source: Rhino Times Greensboro

Secret county raises appear illegal

by Scott D. Yost

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.

According to Payne, the reason for the closed session was for the board to consult with the county attorney due to the potential liability issues involved.

State statute states: “General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant.”

There is no exception in the open meetings law for approving salary increases or amending the county’s budget.

Payne said that, in the Oct. 18 closed session, there was “a consensus.” However, some who were in the room say that the board’s approval or disapproval of the raises was unclear.

Former Commissioner Paul Gibson, who lost his seat on the board in this year’s election, was in the closed session and he said last week that he wasn’t in favor of the raises. Gibson also said he’s not certain where the board stood on the raises.

“I’d like to know what that vote was,” he told The Rhinoceros Times last week.

Gibson, Commissioner Carolyn Coleman and former Commissioner Mike Winstead – who didn’t run this year after two terms on the board – said they didn’t give county staff their approval for the action.

Even if six or more commissioners nodded agreement, winked approvingly, raised their hands or simply didn’t object to going along with the staff’s proposal to raise the salaries, there’s a big of difference between not raising an objection in a backroom meeting in which your position will never be known and coming out of closed session and casting a vote publicly in favor of a move – especially a highly controversial one that angered many in the county as soon as it was made public.

In the past, Guilford County commissioners have been known to agree to vote one way in a closed session and have then come out and voted the opposite way when the official vote was taken moments later.

The confusion over who did or didn’t favor the staff recommendation to raise the 15 salaries illustrates exactly why the State of North Carolina has an open meetings law – and why the commissioners are required by law to take votes in public.

Coleman said that, in the closed session, she spoke out against the salary increases for the department heads.

Earlier this year, Coleman was the driving force behind a move by the board to grant county employees extra vacation time since Guilford County hasn’t offered employees any merit pay increases over the last four years. Coleman said she’s proud of her record of looking after county employees and, she added, when the issue was presented to the commissioners in the closed session, she argued that the directors and elected officials should only get pay increases after equity adjustments had been made for other employees. That is, she said, if the board was going to do this, they should “work their way up.”

Coleman also said she found the rationale for the unusual process dubious.

“We were told it was because it was an equity adjustment, and it wasn’t a raise,” she said.

Gregory S. Allison, a senior lecturer in public finance and government with the NC Institute of Government, said a raise and an equity salary adjustment are the same for practical purposes.

“At the end of the day there’s not a difference – it’s a salary increase,” Allison said.

Coleman said she had to leave the meeting that night immediately after the closed session but, she added, she assumed the Board of Commissioners would take a public vote on the salary increases as the commissioners have done in the past when they’ve increased salaries of elected officials and of the other county directors whose salaries the board determines.

It was only later, Coleman said, that she found out that the commissioners never voted on the matter after the closed session.

She said she still didn’t even know exactly who got raises because county staff collected a handout that listed the department heads and the amounts of the increases.

When Coleman was asked why staff collected the list, she said it was her impression that, “Being salary, they didn’t want that floating around.”

Guilford County has roughly 2,300 employees, and the salary of every one of those employees is a public record that must by law be provided to anyone who asks for it.

Fuller told The Rhinoceros Times that the county has been making this type of salary adjustment in all county positions at various levels of government since 2009. She said human resources staff were, for the most part, going department by department, and that making the salary adjustments was an ongoing process at all levels of Guilford County government.

Payne, who got a $4,400 a year raise, said that, prior to his raise, the other staff in the legal department had been evaluated and their pay had been adjusted when called for by the study.

According to county officials, no one’s salary has been lowered as a result of the study.

When Payne was asked if he had planned to sue the county, he chuckled and said no.

“I would never sue the county,” Payne said.

When Sheriff BJ Barnes was asked if he had been planning on suing the county, he laughed at the question for quite a while.

Barnes then said that he didn’t petition for his raise or know about it before it came about.

Some directors said they only found out about their raises when they read it in The Rhino Times. They had already received the pay increases but some who used automatic deposit didn’t realize they had gotten a raise.

Barnes said he was more interested in getting raises for his officers and other staff, and he said he only found out about his raise a few days before it took effect.

“I didn’t know about it,” Barnes said.

He said that, “three or four days” before the extra money showed up in his paycheck, he was having a phone conversation with Fuller about an unrelated matter, and, at that time, Fuller mentioned in passing that the sheriff could expect higher pay the next time he got a paycheck.

Barnes also said he has no idea how the Human Resources Department arrived at the amount of his raise since the department didn’t look at other local government salaries but instead compared what he does to other county employees. He said he didn’t know how someone would even begin to study something like that.

Barnes said the sheriff’s job seems incomparable to other jobs in the county.

“I’m responsible for 650 people,” Barnes said, explaining that he oversaw not just 550 or so employees but also the inmates in the county’s two jails and one prison.

Barnes said that, over the years, his department has taken over the Guilford County Prison Farm and the county’s fleet of vehicles. He added that the Sheriff’s Department even took over the Guilford County Animal Shelter for a while when the county asked him to do so years ago.

According to Barnes, it has never been about the salary for him.

“When I ran for sheriff, I didn’t even know what the sheriff made,” Barnes said.

He said he only figured it out later once he paid the filing fee, which, he discovered, was 1 percent of the salary.

Barnes said his recent pay increase – whether you call it a raise or a salary adjustment – didn’t make much difference to him one way or the other because it was gone as soon as he got it.

“Dena has already spent it,” Barnes said, referring to his wife.