Board of Supervisors Internal Investigation Reveals What A Culture of Self Dealing Cannot Hide

The internal report from the Saratoga County Board of Supervisors entitled “Covid Pandemic Compensation” is out and it makes pretty good reading.

The report was crafted by a subcommittee of the County’s Human Resources & Insurance committee and was established to “investigate the decision making, implementation and communication of compensation during the Covid pandemic.” The authors are the same people who were responsible for the pay bonus fiasco so my expectations were quite low. In effect, the suspects were charged with determining their own culpability. The names will mean little to most people but for the record they are Supervisors Jack Lawler (R, Waterford), Alan Grattidge (R, Charlton), and Bill Peck (R, Northumberland).

While the report does not address key underlying issues about mismanagement, it nevertheless admits to errors while downplaying their importance or excusing them as unintentional.

The following are to me most interesting aspects of the report:

Supervisors Outraged and Surprised Over Raises? They knew all along.

I previously reported that in spite of Saratoga Supervisors Tara Gaston’s and Matt Veitch’s apparent outrage over the time and a half raises granted to “essential” county employees in the early days of the pandemic, the minutes of the key meetings and the text of the resolution documented that they in fact knew about them and knowingly voted to delegate the authority to implement them to a special committee. What I did not know was that in addition, prior to the Board of Supervisors meeting where the vote took place, the County Administrator, Spencer Hellwig, had sent the Supervisors an email that explicitly advised that the county was going to increases the salaries for employees by one and a half times. Here is the email.

Who Needs A Board Of Superviors? It turns out that the Chairman of the Board of Supervisors Instituted The Raises On His Own.

According to the report, on Sunday March 15 Chairman Preston Allen (R, Day) met with County Administrator Spencer Hellwig. It was decided that Allen would declare a State of Emergency for Saratoga County. The report states that “On Sunday, 3/15 Chairman Allen and Mr. Hellwig agree to implement the 1 1/2 rate compensation plan under the authority of the forthcoming Emergency Declaration.”

The next day, without authorization from anyone beyond themselves, Hellwig convenes an emergency meeting. “…at that time all department heads were told that all essential staff reporting to work would receive 1 1/2 times compensation for staffing purposes.” The report notes, “This is the first documented official statement to department heads on the issue of compensation.

In a case of extreme irony the report goes on to note “Also on the agenda was the instruction to reduce expenses.”

It was at this point that Hellwig sent out the email (above) advising the Supervisors that the county would be operating “at a reduced staffing level” effective March 16 and those working would be granted the one and a half times pay raise.

The authors of the internal report appear oblivious to questions, aside from the legality, of whether it is prudent for one person to assume the authority to establish a State of Emergency, implement a major reduction of staffing levels, and grant huge raises to those employees of the county still reporting to work.

That is correct, Chairman Preston Allen decided he would declare an emergency and then exercised his authority to grant massive pay raises.

Who Needs A Board of Supervisors? Like King Lear, they gave up their power.

Just to make things crystal clear that they were relinquishing their management responsibilities, the Supervisors, including Tara Gaston and Matthew Veitch, passed a resolution that delegated authority to a five person committee to determine future staffing at the county along with the salaries. The report documents how the resolution the Board of Supervisors passed established a committee comprised of the chairman of the Board of Supervisors, the Vice Chair, the Personnel and Insurance Committee Chair, the County Administrator and the Director of Human Resources.

In the introduction to the report the authors offer that “…for ease of reference this committee will be referred to as the Covid Committee.”

So the committee that was determining what the staffing of our county would be and what the compensation for county employees would be was so cavalierly instituted that it did not even have a name.

The authors of the report do not acknowledge that there was even an issue about wisdom of delegating this kind of authority to a committee of the Board of Supervisors.

Open Meetings Law? Who Cares?

In an earlier post I reported that I contacted the New York State Committee on Open Government who confirmed that because it was authorized to enact material decisions this new committee established by the Board was required to adhere to the Open Meetings Law.

Based on this report it appears that the Covid Committee failed to notify the public of any of its meetings, and it failed to make the meetings accessible to the public either by allowing attendance or broadcasting its meetings.

Apparently not only did the committee fail to post its minutes, it appears it didn’t even keep minutes. [JK: I am assuming that since the appendix of documents for this report included the minutes of two meetings of the full Board of Supervisors and the minutes of Law and Finance Committee, the lack of minutes of the “COVID Committee” was because there were none.]

Early on I emailed Supervisor Lawler, one of the authors of this report regarding the violation of the open meeting law. He wrote back that he would explore my concern and get back to me. He never got back to me. He was aware of the issue but obviously disregarded it as relevant to the investigation.

It is illegal to grant raises to elected officials: Who Cares?

Under New York State Municipal Law it is illegal to grant raises to elected officials during their current terms of office.

Nevertheless among those granted a time and a half raise by the “Covid committee” was the elected County Sherriff and the elected County District Attorney. The authors of the report acknowledge that municipal law barred these raises. What is lacking is any discussion as to how such a blunder could have been allowed to happen. It is not unreasonable to ask whether Mr. Dorsey, the County Attorney, failed to properly review the plan or whether Hellwig and Allen never requested his review.

Communications? A Matter Of Chance

The report chronicles chaos.

To their credit, the authors of this report honestly document that the county failed to provide many employees with information about the granting of the bonuses, the termination of the bonuses, and the clawing back of the bonuses.

It reports that on March 19, 2020, at 4:34 PM (yes, now they are very precise), Chad Cooke, Spencer Hellwig’s deputy, sent out an email to all department heads advising them that 1 1/2 times raises will continue for all employees reporting to work.

“At approximately 5:30 PM (a little less precise), one hour after Mr. Cooke’s email, the COVID Committee meets and eliminates 1 1/2 compensation for all essential staff other that those in the Command Center. Chad Cooke was unaware of this decision and therefore did not send a correction to his email that same day.”

“It was not until days later later that Mr. Cooke became aware of the Covid Committee’s decision to amend the plan.”

Bear in mind that Mr. Cooke is Mr. Hellwig’s deputy and that Mr. Hellwig was a member of the COVID committee and presumably attended the 5:30 PM meeting.

Again from the report:

“Another example of miscommunication was Mr. Hellwig’s 3/25 email to Supervisor Schopf erroneously advising him that all essential employees reporting to work were continuing to receive 1 1/2 compensation. Mr. Hellwig acknowledged the error in his subcommittee interview and attributed the error to the stress of the moment.“

The report includes the substance of an interview done by the authors of the report with County Administrator Hellwig, H.R. Director Marcy McNamara, and her deputy, Adam Kinowski (the son of Stillwater supervisor Ed Kinowski).

The authors report:

“While neither Mr. Hellwig nor Ms. McNamara could recall the specific date and circumstances, it was approximately on this date that the County Administrator, in consultation with the Covid Committee, directed HR to reclaim all 1 1/2 compensation that had been paid to Department and Deputy Department Heads, elected officials, employees of the County Administrator’s office and employees appointed by local law.”

It is very hard to make sense out of this. They could not remember when or how this decision was made, but it was somehow done in “consultation” with the COVID Committee– whatever that means. One would think a decision such as this would require a formal vote by the committee, but once again there seem to be no minutes of their meetings and thus no written record of how and by whom this decision was made.

According to the report, Marcy McNamara then informed the heads of the three unions that would be affected by their decision. She didn’t bother to notify all the other employees who work for the county. This would include all the non-union employees of which there are apparently many.

An innocent might expect that if the Human Resources Department was going to dock significant moneys from employees checks that they would send out a notice to all employees advising them of this. It does not seem prudent to simply rely on the heads of the unions to get this information out for such an important notice. While the report sees no problem with notifying union employees by speaking to each union’s representative, it did concede that all the other people should have been informed as well.

The report chronicles interviews with a number of department heads in which they relate that the first notification of the docking of pay occurred when they looked at their checks.

“Ms. Haggen (the Saratoga County D.A.) said that she had no advance notice that the county would be reclaiming the 1 1/2 compensation paid to department heads and deputy department heads in the paycheck received on 4/9.”

Drew Blumenberg, the head of the Public Defenders’ Department told the committee, “He further stated that he was surprised, but not upset, that the additional 1 1/2 compensation was subsequently reclaimed in his next paycheck on 4/9.” “Mr. Blumenberg stated that he was not informed that the funds would be reclaimed from his paycheck.“

“Mr. Bayle (director of the Probation Department) said that he had no prior knowledge that 1 1/2 compensation received in his 3/26 paycheck would be subsequently reclaimed from his 4/9 paycheck and was surprised to see that it had been done.”

There are more similar stories but I think this covers it.

Essential Workers? For The County A Meaningless Term

Previously I quoted from an email that County Administrator Hellwig sent to all Supervisors prior to the controversial full board meeting that authorized the establishment of the so-called Covid Committee. He wrote:

“I would add that this action will come with time and a half pay for essential staff.”

The report never really clarifies what was meant by the term “essential staff” but in reading this report it appears to have meant those who were physically coming into work.

While Spencer Hellwig assured the authors of this report that the county continually monitored to insure the proper people were paid, the reader will pardon my skepticism. Many employees continued to work for the county remotely, some I assume worked from home but had to go into their offices from time to time. Given the documented failure to properly inform employees of the terms of the bonuses it appears unclear (improbable?) whether a rigorous system was established to distinguish those employees reporting physically to work and those working remotely.

This skepticism is reinforced by the debacle that occurred when H.R. Director Marcy McNamara was asked to provide just a list of who was receiving time and a half in the “Command Center”.

The report states:

“At this meeting the Committee also discussed a request from Supervisors for a list of employees receiving 1 1/2 compensation. Per Ms. McNamara, that request had not been met due to ongoing difficulties is (sic) securing copies of the daily sign in sheet for employees working in the Command Center and the payroll coding used for employees working in the command center.”

So, one might ask, what system existed for distinguishing employees working from home with those who report to work? How did H.R. handle those staff who predominantly worked remotely but sometimes came on site?

The Amazing Power Of Marcy MacNamara, the county Human Resources Director

The COVID Committee meets on March 19 as public backlash develops over the time and a half compensation plan.

At that meeting the committee reverses its decision on raises and restricts these raises to just the Command Center. The committee “…directs Ms. McNamara to consider alternatives to 1 1/2 compensation and to discuss those alternatives with union representatives.”

“Ms. McNamara telephoned the union representatives to advise them that 1 1/2 was ending effective 3/19/20 and to discuss 4 hours of PT (personal time) for each day an essential employee reported for work. This information was not immediately communicated to the BOS (Board of Supervisors).”

It is not clear whether the PT was to be granted retroactively to cover the days that had been compensated with time and a half. It is also not clear whether this benefit is still in effect and if so for whom.

On March 25 the COVID Committee meets and “reaffirms” the decision to pay the “Command Center” 1 1/2 times compensation and the other employees the 4 hours per day personal time.

The authors own analysis of Ms. McNamara’s role is instructive.

In the FAQ section they asked: When and By Whom Was the Decision Made to Offer PT (personal time) to all essential staff?

The answer:

The subcommittee’s interview with members of the Covid-19 Committee indicates the decision to consider alternative compensation in lieu of 1 1/2 compensation was made by the committee at their initial meeting of 3/19. The committee directed Ms. McNamara to consider and discuss alternatives with the union representatives.

Report

Consider and discuss alternatives? Does that sound to the reader like a decision? I think this question and answer pretty much sums up the vacuum that existed in terms of thoughtful and carefully planned action. Petty details about whether personal time for a bonus was appropriate and if so, how much was apparently something that could be delegated to Marcy McNamara. I don’t call that either a decision or the answer to the FAQ question.

Putting In Perspective The Personal Time bonuses

County employees work a thirty-five hour week. So if they show up to work they are granted more than half a work day in time off as a bonus under the new compensation plan adopted by the Covid Committee. I would call that a huge bonus. I guess the logic was that rather than the additional half of their pay, they are getting an additional half of their work day in time off instead.

On April 8 the Covid Committee switches the Command Center staff from time and a half compensation to the daily four hours of PT .

The report includes a FAQ (Frequently Asked Questions). It explicitly addresses the question “When exactly did the 1 1/2 compensation end?” Conspicuously missing is the question of when did the personal time benefit end or has it?

As far as I can determine most of the employees in the “command center” are still receiving this benefit.

One has to wonder what the impact on overtime may be in the future to meet the county’s staffing needs? An employee appearing for work (that is the standard– not completing a days work) during the twenty-two week days in the month of April would be eligible to take eleven days off in the future in addition to whatever personal, sick, vacation days they are already entitled to.

If they showed up for work every day for the months of May and June as well, on July 1 they would have accrued thirty-three personal days. That calculates to six and a half weeks of additional time off.

It adds up.

H.R. Director Attempts To Explain Her False Claim That The State and Other Municipalities Were Paying Time and A Half To Essential Employees

At the March 17 meeting of the Board of Supervisors Law and Finance Committee, Marcy McNamara was asked whether the state and other municipalities were paying time and a half to essential employees. She told the Board that yes they were.

The report attempts to explain this misinformation as follows:

Ms. McNamara specifically mentioned during the meeting that the City of Saratoga Springs and the Towns of Milton, Greenfield, and Wilton were planning to offer 1 1/2 compensation. Ms. McNamara responded that there was a miscommunication with Mayor Kelly and Administrator Hellwig. She said that she was apparently unclear in her question regarding plans to pay 1 1/2 compensation. She intended to ask if these municipalities were intending to pay 1 1/2 for every hour worked and now realizes that the responses she received were 1 1/2 rate would be paid for overtime. Ms. McNamara did point out that Washington County, Delaware County and Wayne County approved a 1 1/2 compensation plan and the town of Wilton did the same for some highway employees.”

Supervisor Report

So coincidentally, all four municipalities misunderstood her and thought she was simply asking about their regular overtime policy? Apparently the authors of the report didn’t see the need to pursue her confusion about New York State employees who she also incorrectly stated were receiving time and a half extra pay.

Supervisor Kusnierz, the person who asked Ms. McNamara the original question about the state and other municipalities, called for Ms. McNamara to resign at the March 27, 2020, Board of Supervisors meeting.

Interestingly, in the supporting documents to the report is an email exchange involving Kusnierz and McNamara.

Ms. McNamara wrote to the Board on March 26 (the day before Kusnierz called for her to resign) that any requests directed to the Human Resources Department by Kusnierz now be addressed to the County Administrator, the County Board Chair, or the County Attorney. She notes, “I have never made a request like this during my professional career.”

She assert that:

Supervisor Kusnierz has been extremely offensive and retaliatory during our recent conversations.

The issue of “additional pay” is not as simple as it would seem on its face. In addition to labor relations, there are numerous State and Federal regulations that need to be considered. We have been adjusting the payroll daily to balance these factors.

I value my relationship with all of you and am available whenever to discuss the details. You can reach me in my office or at anytime on my cell phone.

Marcy McNamara

Not to be out done, Supervisor Kusnierz, responded to her:

As a separate matter, since you brought up your job performance in relation to COVID19, I would be happy to discuss your job performance prior to the outbreak as well with any and all.

Regards,

Todd

Supervisor Kusnierz

An interesting note about Ms. McNamara is that she has hired two sons of sitting Supervisors as her deputy during her tenure

The Saratoga County Deputy Sheriffs’ Police Benevolent Association Declines to Play

One of the supporting documents to the report is an email from the consulting agency representing the county’s sheriffs.

He asserts that:

The statement that this union was advised that the time and a half rate of compensation for all hours worked by members of this union would cease on March 19th, 2020 is factually incorrect.

Secondly, on advice from our counsel, we respectfully decline the invitation to discuss COVID19 labor management relations for purposes of an internal investigation due to potential litigation arising out of this issue. We will consider providing that information if, and when, requested by the outside counsel/investigation of E. Stewart Jones Hacker Murphy LLC.

Dan Sisto, Kairos Consulting LLC

It is interesting that they summarily dismiss cooperating with the “internal investigation” but are open to cooperating with the “independent investigation.”

The Authors of the Report Do Make Some Recommendations

1. Meeting minutes of all committee and subcommittee meetings should be kept contemporaneously during the meeting to clearly document proceedings and actions taken.

I assume this substantiates my assumption that the Covid Committee did not bother to keep minutes and under scrutiny Allen, Hellwig, et al had to reconstruct what they thought happened.

With respect, what does it say that the Chairman of the Board of Supervisors and the County Administrator needed to be urged to implement something like this.

2. The County Administrator, in consultation with the HR Committee, should create procedures for communicating with all county employees during emergencies.

Again, does the County Administrator really need to be told this as a recommendation?

3. HR took responsibility for payroll from the Treasurers Office in March 2019. Through the interviews the subcommittee noted confusion regarding payroll practice. The subcommittee recommends that consideration be given to training the HR Director, the Deputy Director, and appropriate staff on best practices and payroll laws.

Again, does the Human Resources Director of an organization the size of our county need to be made aware of this need?

4. The subcommittee takes no position on the disposition of the issue, but does recommend that the BOS consider what, if any, actions it should take regarding the failure to comunicate the decision to reclaim 1 1/2 compensation from department and deputy department heads. It should be noted that every department head interviewed indicated that they did not want this extra compensation.

One of the items missing from this report is an explicit identification of who was responsible for the failure to properly notify the employees. It seems axiomatic that the Director of Human Resources was culpable and some might well include the County Administrator.

For an “internal investigation” the lack of identifying who should be accountable seems like a glaring omission.

No One Will Be Held Accountable

I always find it amusing when self described conservatives rail about the permissiveness of liberals but when it comes to disciplining their own their standards go into free fall.

This was a massive, self inflicted, debacle. One might find some sympathy for someone like Marcy McNamara who was apparently totally over her head in trying to cope with all of this. I have to feel less sympathetic, however, knowing that she has twice hired the sons of Supervisors as her deputies suggesting that she is in this position more because she is smart enough to engage in crude patronage rather than because she is a competent administrator who hires staff based on merit.

Is it any wonder how badly administered our county is when this kind of self dealing is business as usual?

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For those of you who find this all hard to believe here is a link to the full report.