District attorney investigates process, state experts say no laws broken
Union County commissioners broke no laws when they hired a firm to search for a new county manager, state experts said Oct. 20. That comes after sources in the Judicial Center confirmed Oct. 18 the district attorney’s office had opened an investigation in the matter.
Union County District Attorney John Snyder had not returned calls or e-mails by press time. Officials told Union County Weekly Snyder was investigating why commissioners didn’t follow an advisory policy in hiring the search firm. The answer, according to University of North Carolina School of Government legal expert Fleming Bell is they didn’t have to.
“For the position of manager, that person serves at the pleasure of the board,” Bell said. “They could hire the assistant county manager, they could hire someone from outside. There isn’t a requirement to hire firms or even to collect bids during the process.”
When commissioners decided not to renew then manager Al Greene’s contract July 28, the majority voted for Chair Kim Rogers and Vice Chair Tracy Kuehler to work with Human Resources to come up with a list of firms to head the search for a permanent replacement. They considered eight firms, then Rogers made a motion Aug. 11 to hire Florida based Colin Baenziger and Associates to lead that search, at a cost to the county of $21,500. It passed 3-2, with Allan Baucom and Parker Mills.
The investigation, according to the Judicial Center source, focuses on county policy, specifically the one stating the board will routinely send out what’s known as an RFP or request for proposal during a personnel search. Firms then submit their proposals, detailing cost and how long they anticipate such a plan to take. County commissioners did not follow that policy before approving a firm to search for a manager, nor did they have to, according to the document itself, which is an advisory policy.
That means, Bell said, county commissioners have the option of ignoring it or following it, as they choose.
County attorney Keith Merritt told the board the same thing Aug. 11, at the meeting when the firm was hired.
“The board can choose to follow it or choose not to,” Merritt said, adding that calling for proposals generally goes above what’s required by state statute.
During that same meeting, Human Resources director Mark Watson said, the county hadn’t used the policy since the hunt for a replacement for fired county manager Mike Shalati in 2007. Instead, the three boards since then had used the information collected during that period when searching for new employees. That was the case in hiring both a new parks and recreation director and a new chief financial officer, to take over from Kai Nelson. The county didn’t put out a request for proposals in either case and in each case, Bell said, they were within their rights as a board.
Bell, who conducts ethics training for county commissioners across the state each year, is considered the top legal expert in North Carolina, when it comes to state, county or municipal government. The only thing he found troubling was the fact commissioners ignored their own policy.
“If they just ignore their own policy, it’s some concern,” Bell said. “If that’s the case, why have it in the first place? There’s no requirement for it.”
Bell’s position was supported by fellow School of Government legal expert Eileen Youens, whose specialty is municipal and county contracts.
“There are no bidding laws in the state that require RFPs to be sent out,” Youens said. “The county can hire whoever they choose for the position, without getting bids if they wanted to.”
DA silent, commissioners question why
Rogers and Kuehler question why the investigation is needed, when the only thing ignored was an advisory policy.
“What criminal act am I being accused of?” Kuehler asked. “Snyder hasn’t said what the charges are. Why is it suddenly an issue now, when it wasn’t for any other board?”
With no word from the district attorney, it’s unclear why the investigation was launched into the advisory policy.
“I would hope the D.A. would utilize his office and taxpayers money, so that before any investigation is opened, they would look at state statutes, tapes and minutes,” Rogers said.
According to Rogers, the first round of county manager candidates were scheduled for interviews Friday, Oct. 22 . Based on even the most optimistic timetable given by Baenziger and Associates, this board as currently seated will likely not hire that manager anyway, with the search expected to take an additional 30 to 60 days.