By Lois Henry
Here's a bit of news that I didn't expect. The Kern County District Attorney's office has launched an investigation into whether the Board of Supervisors' practice of routinely placing the job performance of County Administrative Officer John Nilon on the "closed session" portion of its agenda is legal.
I say no, it's not legal.
Lois Henry hosts Californian Radio every Wednesday on KERN 1180 AM from 9 to 10 a.m. You can get your two cents in by calling 842-KERN.
At best, listing Nilon's job evaluation week after week is a cynical distortion of California's Brown Act, which is meant to ensure that elected and appointed officials do the public's business in public.
At worst, supervisors are using it for cover to talk about
things that should rightly be discussed in the open, such as giving Nilon a to-do list for various projects or issues.
The public will never know, however, because as often as Nilon's eval is on the agenda, an outcome of "no reportable action" is listed in the minutes.
The board is playing a shell game with its closed session and giving us the old "trust us" line.
Nah, how 'bout if the board sticks by the rules instead?
I detailed the board's practice in a column Sunday, May 6 and said the District Attorney should look into it. That following Monday, DA Lisa Green brought it up with her Assistant DA and lo and behold, they decided to investigate.
"You sound flabbergasted," Green said of my reaction when she told me about the investigation last week.
I guess I was, which is probably unfair to Green who said she does, indeed, take her role as a public watchdog seriously.
"Yes," she said. "I'm interested in pursuing the Board of Supervisors to make sure they're adhering to the law. Just as I'm interested in pursuing many issues to make sure everyone adheres to the law."
Whether the investigation results in anything, she said, only time will tell.
I certainly hope the DA agrees with my take that closed session items should be strictly limited to those allowed by the Brown Act and they must be properly noticed.
There's no room for "place holders," as Nilon told me his recurring evaluation was, when it comes to the thorny world of closed sessions.
Either way, I'm ecstatic that the DA is butting in. It's a great example of those governmental checks and balances we're always hearing about.
And, not that Green asked, but here are a few more logs to consider for the investigatory fire.
Don't forget about Kern Medical Center CEO Paul Hensler. His job eval was on just as many of the board's Monday agendas, percentage wise, as Nilon's was on the Tuesday meetings.
Also questionable are the near weekly closed sessions on labor negotiations.
Several union leaders told me they've been puzzled over the last year or more to see their unions routinely listed as closed session items when they hadn't met or exchanged information with the county in months. Even after contracts have been settled and amended language is signed off on, the unions continue to come up for closed session under "labor negotiations."
Oh, and as long as we're looking, someone needs to put South Kern Cemetery District under the microscope as well.
That board routinely has a "closed session" category on its agendas, but often with no items listed. That may sound innocuous but it's not.
District Manager Lisa Wood told me the board uses closed session as a "place holder" (there's that term again!). It's there, "In case we need it," according to Wood.
For instance, she explained, if board members stray into talking about a personnel matter, they can click into closed session "since it's already on the agenda."
No, no, no no! That's totally unacceptable under the Brown Act. If something isn't on the agenda, the board can't discuss it in open or closed session.
Well, Wood informed me, she got the OK from the Kern County Counsel's office, which provides legal advice to most special districts.
She forwarded an email to me that she said came from the county counsel but which had no name attached.
Even so, nowhere in that email did it say it was OK for the board to willy nilly go into closed session on items that had not been properly noticed to the public, which was exactly how Wood described the board's use of the closed session heading.
Wood disagreed that the district was out of bounds saying agendas are "just an outline." And, she added, her mysterious county counsel contact told her "lots of other places do it this way. It's not uncommon."
Yeah, well there's nothing quite so contagious as bad government.
Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her olumn appears Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or e-mail firstname.lastname@example.org