Saratoga County Board of Supervisors: Stepping Back And Looking at the Roots Of the Debacle

[JK: Lew Benton has had a long and distinguished career in government. He has worked for both Saratoga County and for the state of New York. He served as the Saratoga Springs Commissioner of Public Safety.

In order to understand our current crisis at the county it is critical to step back and try to understand how this all came about. This piece by Lew helps all of us find some answers.]

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The state Legislature has granted fairly broad discretion in the preferred structure of government for each non-charter county.  The general limit of that authority is the principle that the legislative and executive authority remain with a single body of elected officials.” *

* Saratoga County 21st Century Study Commission Governmental Operations Task Force Report

The dustup brought about by Saratoga County’s award of 50% salary increases to certain employees and officials deemed “essential” to managing the current health emergency presents an opportunity to take a fresh look at this form of government, how it functions and why and how the office of county administrator has been allowed to morph from its defined, statutory role as manager to one of quasi-executive.

And an April 15 “Times Union” story (“County officials lament ‘vacuum’ ”) and last Friday’s ham-handed attempt to avoid a public airing of how all this came to pass serves to add urgency.

Maybe it will remain in the public conscience long enough to force a hard look at this County’s governance.

It also indicates that it may be time for the Board of Supervisors to exhume and re-examine the reasoning that led to the creation of the county administrator title in 1979 and subsequent recommendations found in such initiatives as the 1987 Governmental/Intergovernmental Operations Task Force Report.  

That Task Force, chaired by the late Charlton Supervisor Fred Hequembourg, was part of the County’s 21st Century Study Commission appointed by Roy McDonald, then chair of the Board of Superiors.

Those who knew Fred Hequembourg will recall a strong, demanding personality who was elected chair of the Board for three consecutive terms and who was a power to be reckoned with.  He was also smart and knew government. [JK: Fred Hequembourg was one of the finest persons to serve our county in my lifetime. A Republican, Fred represented, in the deepest sense, service to community.]

Perhaps the Task Force’s final report is still worth a look.  Through its staff, the Task Force examined the evolution of county government in New York.  The report noted that then 37 of the state’s 57 counties outside New York City were non-charter, looked critically at the Charter v. Non-Charter forms and what non-charter structures might better serve Saratoga County.

The Task Force made several recommendations including this: Enact a Local Law for the Creation of a County Board of Representatives by 1991.  Implicit in the recommendation was a board made, as then and now, of representatives of the each of the 19 towns and two cities and thus preserve the direct connection between the local governments and the County.

The Task Force went out of its way in making this recommendation to emphasize the following:

“The state Legislature has granted fairly broad discretion in the preferred structure of government for each non-charter county.  The general limit of that authority is the principle that the legislative and executive authority remain with a single body of elected officials.” *

* Saratoga County 21st Century Study Commission Governmental Operations Task Force Report

So in 1987, eight years after the office of county administrator was established, the Task Force   was quick to remind all that while it was suggesting transitioning from a Board of Supervisors to a Board of Representatives, both the legislative and executive authority remain with the legislative body.  

In the follow-up to the present circumstance, any review should begin with a reminder of what this county is not.  It is not a charter county.  There is no executive other than the Board of Supervisors acting in its legislative capacity and as it may, at open meeting,  authorize and direct the chairperson to act.  Such authorizations and directions are always linked to specific policies and legislation adopted by the full Board and most are ministerial in nature; i.e., directing the chair to sign and submit a specific grant application, advocate or oppose pending state legislation, etc.

Over time it appears that members of the Board have allowed the office of county administrator to morph into a de facto executive authority.  The tail seems to be wagging the dog, the inmates are running the asylum.

The Board cannot legitimately transfer or grant authority to a committee to expend monies that have not been appropriated.  It cannot increase compensation without, by formal legislation, amending the pay schedule and budget.  And it certainly cannot give that authority to an ad hoc committee or the county administrator.

Specifically, Sec. 154 of the County Law, precludes such delegation of authority:

“Nothing herein shall be deemed to authorize the delegation of any of the powers, duties or responsibilities of the board of supervisors or of any officer except as otherwise expressly authorized by law.”

But it appears that Resolution 84 – 2020 did not, in fact, authorize increasing the compensation of certain “essential employees” nor did it appropriate any monies to do so.  So what did it do?

The March 17 resolution, among other things, established a committee made of

“ … the Chair of the Board, the Chair of the Law and Finance Committee, the Chair of the Human Resources and Insurance Committee, the County Administrator and the Director of Human Resources …” and gave it “ … the authority to jointly determine appropriate County employee staffing levels and rates of compensation that are consistent and in compliance with the current directives of any Executive Order issued by the Governor of the State of New York relative to local government staffing levels … “

So the full Board of Supervisors never authorized pay increases and clearly limited the committee’s actions to those “ … consistent and in compliance with the current directives of any Executive Order issued by the Governor of the State of New York relative to local government staffing levels … “

Of course none of Cuomo’s pandemic related executive orders allow for increases in compensation outside of normal procedure.

It is only at the referenced Law and Finance Committee meeting, convened just one hour before the full Board met, that any reference to increased compensation for some employees is discussed and even then in an obtuse way.

One thing though is clear from the minutes of that meeting: staff misrepresented facts that might have influenced members.  For instance, when asked by a committee member, Todd Kusnierz, if  “ … the State and other localities were providing time and a half.  Mrs. McNamara said the state was as well as some municipalities.”  But neither the state nor other municipalities had done any such thing.

And the true intent of the full Board’s resolution is further affirmed by the budget amendments (shown below) authorized by Resolution 84 – 2020 follows:  

“ …and be it further RESOLVED, that the 2020 County Budget is amended as follows:

PUBLIC HEALTH Appropriations:

Increase Acct. # A.40.409-6000 Regular Wages $150,000

Increase Acct.#A.40.409-6930 Social Security $11,475

Increase Acct. #A.40.409-8200 Department Supplies $838,525 …”

Note that the resolution only amends these three line items in the County’s Public Health budget. The increase of $150,000 in the Public Health Regular wages line and the additional $838,525  in the Department Supplies line are to bolster the Public Health Services capacity to respond to the emergency by adding staff – as necessary – and materials. This intent seems crystal clear by the following language in Resolution 84:

“ … and WHEREAS, Saratoga County Public Health Services is in need of additional staffing, supplies and equipment in order to respond to the ever increasing number of individuals who have tested positive for COVID19, been exposed to someone who has tested positive for COVID-19, or who are exhibiting symptoms of COVID19; …

“ … and WHEREAS, it is necessary to amend the 2020 Saratoga County Budget to effect a transfer of $1,000,000 from Fund Balance to Saratoga County Public Health Services in order to allow Public Health Services to hire additional temporary staffing, procure needed supplies and equipment, and help to meet the needs of those individuals in the community subject to mandatory or precautionary quarantine; … “

Still, press coverage of this story continues to report that the March 17 Board action authorized the committee to award 50% increases to certain administrative and elected officials and time and a half to rank and file workers.  There is no language in the resolution which authorized such increases and there is no language that gave any such authority to the five member committee.  And the resolution made no appropriation necessary cover such additional compensation.

So how did it come to pass that the Board’s appropriation of $1,000,000

“ … to allow Public Health Services to hire additional temporary staffing, procure needed supplies and equipment, and help to meet the needs of those individuals in the community subject to mandatory or precautionary quarantine…”

Somehow justify temporary salary increases of the county administrator, the personnel director and other administrative staff by 50%?  And how could have such increases been awarded without budget authority?  The $1,000,000 was appropriated to bring on temporary nursing staff and needed supplies as needed.

Not one penny was appropriated for any other purpose.

John Kaufman has reported that Saratoga Springs Supervisors Tara Gaston and Matthew Veitch, both of whom attended the referenced Law and Finance Committee, and later voted to adopt Resolution 84, took to social media to deny having responsibility for granting 50% raises to “essential” County workers.

Here, in part,  is what Supervisor Veitch posted on his Facebook page:

    “Yes, the County is currently operating under a policy where most of the essential employees are getting 1.5 times pay for hours worked. I was informed of this decision on March 15th by our County administration, and was not involved at all in developing this policy.

    Nowhere in that resolution does it approve or dictate time and a half rates for essential employees.”

On her Facebook page Tara Gaston offered a similar defense.

    “On March 15, 2020, administrator Hellwig notified the board of supervisors that essential workers were to receive time and a half during the COVID-19 emergency. I immediately sought details, including who created the policy.

    “On March 17, 2020, the board debated resolution 84-2020 to amend the budget. The time and a half policy was not included in the resolution and was not voted on.  Nevertheless, the topic was discussed. I requested that the pay discussion be taken to executive session to allow frank conversation about the origins and details of this policy. Chairman Allen, on the advice of county attorney Dorsey, denied the request.”

These posts support what is already known: the Board’s resolution did not authorize increased compensation.  But both supervisors say they were notified by the county administrator on March 15 that “essential” employees would be compensated at 150% of their established pay rates.

How and in what form the March 15 directive referenced by Supervisors Veitch and Gaston was transmitted and if it specifically referenced increased compensation is not mentioned.  If our supervisors would share the  administrator’s March 15 directive It would, presumably, answer lingering questions and perhaps put this entire episode in a more favorable light.

Back in 1989 Fred Hequembourg and the other members of the County’s Governmental Task Force were so prescient to warn against allowing the Board of Supervisors to forget that it is the executive authority and it cannot surrender that authority, voluntarily or otherwise.