Defenders Of County Administrator Hellwig Called For Due Process, Uh Oh! FOIL Reveals that Process Doesn’t Exist

The defenders of Spencer Hellwig denounced the Supervisors who attempted to terminate his employment accusing them of allegedly denying Hellwig due process. Curious about the “process” they were referring to I submitted two Freedom of Information inquiries.

The first was a request for the contract between Spencer Hellwig and the Board of Supervisors. Hellwig is an “at will” employee which means theoretically he can be dismissed without cause as long as the basis of the dismissal does not constitute a violation of law like discrimination based on race, age, etc.

Still it is regular practice to contract with an at will employee spelling out the terms of their employment in a written document. It is possible that such an agreement might provide some kind of protection.

The response to my FOIL was that there is no such contract.

I then FOILed the Board of Supervisors for any documents pertaining to the process for dismissal of the County Administrator. In response I received a copy of the local law establishing the position of County Administrator which was adopted on November 20, 1979.

This is a link to the document.

There is nothing in the document that establishes any procedures (processes) for the termination of the County Administrator. The closest relevant text in the document reads:

The County Administrator shall be appointed by the Board of Supervisors and shall serve at the pleasure of the Board

Section 3

There is a delicious irony that these Supervisors are complaining about an alleged failure to adhere to due process as it applies to terminating the County Administrator given their own flagrant violations of county policies as documented in the report by the law firm E. Stewart Jones Hacker Murphy on the overtime pay fiasco. It borders on the bizarre for them to complain about the lack of due process for Hellwig when they never bothered to establish any formal procedures that would address the termination of a County Administrator.

There may be case law that requires some sort of process beyond a resolution simply terminating a County Administrator but if so they should have established rules adhering to whatever those precedents required.

I thought it was instructive that the letter sent by the attorney representing Hellwig went on at some length about the failure to provide his client with due process but failed to cite any specific, required action that had been violated. In other elements of the letter, he backed up his defense with specifics but not as regards this due process that was allegedly denied his client.

The Mystery: Process? What Process?

Community News is published and distributed in Southern Saratoga County. It is a publication of the Saratogian Newspaper. On October 9, 2020, they published a story with the headline: Next step in county compensation controversy a tough call

As background, the Board of Supervisors established a special committee to review the report by the law firm Jones, Hacker, Murphy regarding the overtime pay fiasco to make recommendations as to what, if any, disciplinary action should be undertaken as a result of the disclosures in the report.

…to receive recommendations from said labor counsel as to what, if any, disciplinary action may be appropriate against any employee named in the report; to determine and formulate recommendations of the committee to the Board of Supervisors as to what disciplinary actions, if any, may be appropriate against employees named in the report; and to convey such recommendations of labor counsel and the committee to the Board of Supervisors.

From the resolution establishing the committee

The committee subsequently decided to focus on five issues. The following items have been taken verbatim from the minutes of the special committee:

1. The report concludes that named officials informed County staff that their workers who showed up “in-person” would be paid time and a half before the Board of Supervisors (BOS) discussed and voted to form the COVID-19 Oversight Group (Resolution 84-2020)
2. Several named officials presented incorrect information to the BOS regarding other local municipalities paying time and a half to “in person” essential workers
3. Named officials improperly paid time and a half to several individuals whose pay is subject to legislative action and permissive referendum
4. Named officials appear to have violated open meetings law
5. Named officials failed to communicate effectively with the BOS, labor unions, and nonunionized employees regarding when time and a half would end
   

The story states that in light of the fact that the special committee is dealing with a personnel matter, their deliberations cannot be accessible to the public. In the event that they decide on some action short of termination, then the results will remain secret.

This blogger would observe that even the termination of a high profile employee like a county administrator would probably remain secret in that the county would not formally announce the termination. Anyone inquiring about the fact that a particular county administrator was no longer employed would simply be advised of their dates of employment. The circumstances of their leaving the position would remain privileged.

There are a number of troubling things about this article. Take for example this quote:

If the committee chooses to terminate (my emphasis) there will be a hearing with that individual or individuals so that they have their due process. Then a hearing officer will look at the case or cases and see if the committee overstepped its bounds.

Community News October 9, 2020

This committee does not have the authority to terminate anyone. I expect the reporter or whichever member of the committee the reporter talked to either misspoke or was ill informed. Authority to fire or otherwise discipline the county administrator rests with the full Board of Supervisors.

What I find most troubling is the reference to a “hearing officer.” Is there going to be a formal hearing? If so, what will the standards be? How will a hearing officer be chosen? I also have trouble understanding what is meant by the committee “overstepping its bounds.” What bounds?

Even more extraordinary is this:

Also under seal would be any changes the committee recommends to see that such a situation like the one surrounding the time-and-a-half compensation plan never happens again.

Community News October 6, 2020

There is no reason that recommendations made to the full Board of Supervisors about changes in county procedure should be privileged. It would be a violation of the Open Meetings Law if they discussed these kinds of recommendations in executive session. They are public policy issues.

Eric Connolly is the Supervisor from the Town of Ballston who chairs this committee. He is quoted in the article as follows.

“There could be stiff reprimands, and we could put together a robust employee improvement plan but people will never know about it,” Connolly said last week. “If it’s internal, then things cannot be revealed. That’s what our labor attorney is telling us.”

October 6, 2020 Community News

I am sorry, but there is something terribly wrong here. I don’t know if Supervisor Connolly is confused, if the reporter misquoted him, or if the labor attorney is giving problematic advice. I am at a loss at what he means when he states “If it’s internal, then things cannot be revealed.” What does he mean by internal?

In the article he worries about litigation. He told the newspaper:

“We really want to be as transparent as possible and let the public see the result, but we do not want to put the county at risk of a lawsuit.”

Community News October 6, 2020

I am sympathetic with his caution. Spencer Hellwig is being represented by a national law firm and the County needs to proceed cautiously, but if the report in the Community News is to be believed, he and the committee are potentially proceeding in violation of our own State’s requirement for public access.

The Need For Clarity

So the article raises many questions about what the process actually is. The County responded to my request for all pertinent documents regarding procedures for disciplining a county administrator and basically there were none.

All of this seems to be simply a continuation of the gross mismanagement that the Covid overtime pay raises so clearly exposed.