Quirks of the County Blog

Sunday, Feb 10 2013 04:00 AM

LOIS HENRY: Maybe new board can learn from past mistakes

BY LOIS HENRY Californian columnist lhenry@bakersfield.com

I got called into the District Attorney's office early last week.

I know some of you are thinking "about time," but this wasn't about me.

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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.

It was about something I, and many others, have been harping on for at least the last year.

That is whether the Kern County Board of Supervisors violated the state's open meeting laws by talking about things in closed session that rightfully should have been open to public ears.

In this case, the allegations concerned the county's contract with its medical benefits administrator.

The DA told me this week the board did not violate the Brown Act, in this instance, based on a very narrow exception.

The Brown Act requires government entities to conduct the vast majority of their business in public view, with a few specific exceptions, such as litigation, property purchases and labor negotiations.

I'm glad the DA looked into this, but I disagree that everything was copasetic with the board's handling of this issue. First some background.

This was the second such investigation of the board by Kern's DA.

The first investigation started last spring. It looked into why the board claimed it was evaluating County Administrative Officer John Nilon's job performance in closed session at practically every single meeting.

The guy was either terrible at his job or something else was going on.

Nilon told me putting the evaluation on the closed session agenda every week was a "placeholder."

Former Supervisor Ray Watson told me supervisors occasionally used that time to give Nilon new direction on various projects or check up on old projects.

The DA discovered that an attorney from the county counsel's office wasn't even present at closed sessions when the topic was job performance.

It was a perfect setting for exactly what many of us feared -- wide-open back room deal making.

District Attorney Lisa Green's report in June stated there was evidence the board had violated the Brown Act.

But she made a few "friendly suggestions," such as quit using job evaluations as placeholders. And a county counsel lawyer needs to be in the room whenever supervisors are behind closed doors.

Supervisors could also keep written or recorded minutes of the meetings, but Green didn't make that recommendation.

Supervisors did incorporate the DA's friendly suggestions on no agenda placeholders and having county counsel monitor all closed sessions, but declined to record minutes of those meetings.

Given intervening events, that's something they might want to rethink.

About the same time the DA was issuing its report on the first Brown Act violation investigation, the office was visited by Dr. Donald Cornforth with yet another allegation of closed session misdeeds by supervisors.

He'd been trying to get information about Kern's contract with Managed Care Systems (MCS), which administers the county's largest health plan.

He also wanted to know about a report done by the county's independent health benefits consultant, the Segal Group, on whether contracting with MCS had an inherent conflict of interest.

MCS is owned by GemCare, which is partly owned by Dignity Health, which, in turn, owns or controls Mercy and Memorial hospitals. That could put MCS in a position of negotiating with itself and it also gives MCS a lot of power and incentive to shut other providers out of county business -- hence the conflict.

Cornforth couldn't get anything out of the county on either the contract or the Segal report.

He had an inkling supervisors had been discussing both items in closed session and complained to the DA in June about possible Brown Act violations. He also sued to get the Segal report.

In the depositions for that lawsuit, Nilon admits supes had indeed discussed the MCS contract and reviewed the Segal report several times. But he insisted it was all above board because those discussions were properly noticed on the agenda as "labor negotiations."

The "labor negotiations" exception to the Brown Act was also the deciding factor for the DA in its most recent investigation, according to Assistant District Attorney Scott Spielman.

"The (MCS) contract centers around fringe benefits, which is compensation and is an exception under the Brown Act," Spielman said. Spielman also ran his report by the Attorney General's office, which concurred with his findings.

Here's why I disagree.

Nothing about the MCS contract discussions at that point had anything to do with employee contributions or co-pays, which would have to be separately negotiated items anyway.

The MCS contract was expiring and supervisors needed to go out to bid on a new contract, all of which is a very public process. The "labor negotiation" shield simply doesn't hold up.

A Kern County judge likewise found the county's attempt to withhold the Segal report under "labor negotiations" unacceptable and contrived. The report was ordered released last November.

All that, plus the Nilon job evaluation debacle, shows me the board was more interested in stretching the law to cover their tracks than being as upfront with the public as possible.

I recognize that the board of supervisors we have today is different (with the exception of Zack Scrivner and Mike Maggard) from the board we had a few months ago.

But it's important to retrace the missteps of the past so the current board might chose a better path.

As for Cornforth, he was disappointed that the DA chose not to pursue a Brown Act violation. Even if it's not prosecutable, he said, both District Attorney Green and County Counsel Theresa Goldner should assert their "moral authority" to insist on greater transparency by our local leaders.

"Just because 'it is not indictable' (as stated by one of our illustrious supervisors) does not mean it is right," he said in an email.

Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or e-mail lhenry@bakersfield.com

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