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HomeMy WebLinkAboutMINUTES - 08131996 - D9 69 TO: BOARD OF SUPERVISORS IOC-03 Contra FROM: INTERNAL OPERATIONS COMMITTEE Costa n: :s �� �- � • � County DATE: August 5 1996 Y y� 9 CBOT• •y,P � T'9 COU21'� PROPOSED RESPONSE TO REPORT#9608 FROM THE 1995-96 GRAND SUBJECT: JURY, ENTITLED: "HUMAN RESOURCES DEPARTMENT-PROJECT POSITIONS" SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: DETERMINE how to respond to Report#9608 from the 1995-96 Grand Jury, entitled "Human Resources Department-Project Positions." BACKGROUND: On June 25, 1996, the Board of Supervisors referred to our Committee Report #9608 from the 1995-96 Grand Jury, entitled: "Human Resources Department - Project Positions." This Report was accepted by the Court for filing on June 11, 1996. A response must, therefore, be approved by the Board of Supervisors by August 13, 1996, since the Board does not meet again before the end of the 90-day period within which a response must be filed with the Presiding Judge of the Superior Court. Our practice has been to ask appropriate staff to provide their responses to the recommendations made by the Grand Jury. The County Administrator's Office then prepares a proposed response which is provided to our Committee to review with the Grand Jury and affected staff. Once our Committee is satisfied with the response, it is prepared as a report from our Committee to the full Board of Supervisors for the Board's consideration. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): c olc+unn (`��YI nye ROGERS ... . � � v� i v� Vf'f�►�CTGT�► August 13, 19919 ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER X The Board REFERRED to the internal Operations Committee the proposed responses to Report No. 9608, "Human Resources Department - Project Positions," from the 1995-96 Grand Jury; and DIRECTED County Counsel to correspond with the Grand Jury regarding the status of the County's response. VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE —X UNANIMOUS(ABSENT II and V ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. ATTESTED August 13,_;996 Contact: County Administrator PHIL RA L ,CLERK OF THE BOARD OF cc: Director of Human Resources SU AND COUNT ADMI STRA OR County Counsel Presiding Judge of the Superior Court Internal Operations Committee (via CAO) BY I.O.-3 On August 5, 1996, our Committee met with the Human Resources Director, Leslie Knight; Assistant Human Resources Director, Eileen Bitten; Assistant County Counsel, Arthur Walenta; Paul Katz from Local 1; staff from the County Administrator's Office, and members of the 1995-96 and 1996-97 Grand Juries. Staff had prepared the attached proposed response to the Grand Jury's report. We believe that it is important to separate in our thinking the two main functions which are involved in hiring of an individual for a position with the County: first, the creation and funding of a particular position with a specific classification at an established salary level, and second, the process of selecting an individual to fill a particular position. The County Counsel's Office clearly indicated that it is the constitutional responsibility of the Board of Supervisors to determine the number and classification of positions in each County department and to fix the salary of those positions. We agree with the Board's role and responsibility in this area. The second area, however, the actual selection of an individual to be hired for a position, is generally the role of the department head (the "Appointing Authority"), within the guidelines set down by the Board of Supervisors. All positions are required to be Merit System positions, unless the Board of Supervisors has adopted an ordinance to exempt a position(s) from the Merit System. Project positions (the subject of the Grand Jury Report) are one of the classes of positions which have been exempted from the Merit System. The Board of Supervisors can and does establish guidelines for the type of recruitment which should be pursued for particular positions, and whether and what type of examination should be conducted to identify the most qualified candidates. It is the responsibility of the Human Resources Department to insure that those guidelines are adhered to in recruiting and testing applicants. However, the actual selection of an applicant, within the guidelines established by the Board of Supervisors, is and should remain the responsibility of the department head, whether an elected or appointed department head. We understand that the Grand Jury's Report addresses the issue of selecting and appointing an applicant to a position rather than the process which is followed in creating a position. In carefully reviewing the Grand Jury's Report and staffs proposed response, our Committee is unable to concur with some of the responses. Supervisor Bishop outlined the following concerns with the Report and proposed response: 1. Concern about whether it is appropriate to interject the Human Resources Department or the Board of Supervisors into the process followed by an elected department head in deciding to fill a project position by examination versus making a direct appointment as is implied in the Grand Jury's recommendation #1. That control should be exercised by the Board of Supervisors in agreeing to establish a project position in the first place. 2. Concern that a far more detailed definition is needed of what constitutes a "conflict of interest" as used in the Grand Jury's recommendations #2 and #3 if the Board of Supervisors is going to ask either a department head or the Human Resources Department to review and comment on whether an appointment decision being considered by a department head involves either an actual or a perceived "conflict of interest." -2- I.O.-3 3. Department heads and many other employees must already publicly report substantial amounts of information which allows a judgment to be made about whether a conflict of interest does or might exist in regard to any decision that individual might make. The Committee is concerned that the Board of Supervisors not require reporting that would duplicate or overlap existing reporting requirements. 4. Concern about whether it is appropriate to mandate the number of people who are interviewed and the record keeping which would be involved in requesting waivers from the Human Resources Department and maintaining additional records as is implied in the Grand Jury's recommendation #4. 5. Concern that it may be inappropriate to document the content of interviews, as is implied in the Grand Jury's recommendation #5. Supervisor Rogers shares many of Supervisor Bishop's concerns. For these reasons and since we are up against a deadline for responding to the Presiding Judge, we are forwarding staffs response without a recommendation from our Committee. -3- VICTOR J.WESTMAN OFFICE-OPCOUNTYrCOUNSEL oePunes: PHIWP S.ALTHOFF COUNTY COUNSEL CONTRA COSTA;COUNTY BRANDON D. AUM BRANDON D.BAUM ANDREA W.CASSIDY COUNTYYADMINISTRATION BUILDING VICKIE L.DAWES SILVANO B.MARCHESI 65y'PINE STREET,9th FLOOR MARKE S.ESTIS ARTHUR W.WALENTA,JR. MICHAEL D.FARR ASSISTANTS MARTINEZ;.,CALIFORNIA,94553-1288 ULLIAN T.FUJII DENNIS C.GRAVES GREGORY C.HARVEY GAYLE MUGGLI AizguSt'1.4, 19.96 KEVIN T.KERR EDWARD V.LANE,JR. OFFICE MANAGER VIVIAN LILY MARY ANN MASON PHONE(510)335-1800 - PAUL R.MUNIZ VALERIE J.RANCHE FAX(510)646-1078 R E C E N E D DAVID F.SCHMIDT Contra Costa County Grand Jury DIANA J.SILVER AT WILLIAMS 725 Court Street JACQUELINE Y.WOODS Martinez, CA 94553 EAUG4 X996 Attention: Ramiro Arosemena, Foreman CLE Cpm RAoOs A co IS�RS Re: Report No. 9608 Dear Foreman Arosemena: On August 13, 1996, the Board of Supervisors considered its proposed response to Grand Jury report No. 9608, Human Resources Department-Project Positions. The Board did not reach agreement as to its response and has continued the matter to its next meeting which is on September 10, 1996. This may result in the Board's response to report No. 9608 being delayed for a short time beyond the 90 day period provided in Penal Code section 933. The Board has asked that the County Counsel advise the Grand Jury that the-Board regrets the delay and will undertake to formulate its response to the report as soon as possible after it reconvenes in September. Very truly yours, Victor J. Westman County Counsel By: Arthur W. Walenta Assistant County Counsel AWW:fjb cc: Members of the Board of Supervisors County Administrator Human Resources Director Clerk of the Board of Supervisors H:\fbent\aww\arosemna "HUMAN RESOURCES DEPARTMENT - PROJECT POSITIONS" REPORT NO. 9608 The 1995-96 Contra Costa County Grand Jury recommends that the Board of Supervisor require a more detailed justification on the establishment, recruitment and selection for vacant Project Positions, to include: RECOMMENDATION NO. 1: Written justification for waiver of examination. RESPONSE: A. This recommendation is adopted. B. Administrative Bulletin No. 416 "Project Positions" will be amended to require that any department seeking to fill a project position by waiver of examination and direct appointment first submit a written request and justification for review and approval to the Human Resources Director. RECOMMENDATION NO. 2 : Written conflict of interest statement for any selection made without examination, identifying any relationship between the selecting official and the selected candidate. RESPONSE: A. This recommendation is adopted. B. On Jun 11, 1996, the Board of Supervisors adopted Resolution No. 96/293, "Policy on Avoiding Conflicts of Interest in Appointments by Department Heads to Authorized Positions . " To assure compliance with this policy, Administrative Bulletin No. 416 "Project Positions" will be amended to require submission by the department head of written verification that all steps have been taken to insure that no legal or implied conflicts of interest will be encountered in the appointment. RECOMMENDATION NO. 3 : Requirement that the Human Resources Director review the conflict of interest statement and seek Board approval of the selection in sensitive or questionable instances. RESPONSE: A. This recommendation is adopted in part. B. The Human Resources Director will review the form to ensure that all information is complete and will maintain a copy in the employee ' s file. In the event of a Waiver of Competition, this information will also be included with the Human Resource Director' s Quarterly Report to the Board. RECOMMENDATION NO. 4: Requirement that at least three (3) identified persons be interviewed for any project position unless waived in writing by the Director of Human Resources . RESPONSE: A. This recommendation is adopted. B. Current certification rules of three (3) names for a promotional position and ten ( 10) names for an open position is adequate protection in all instances where a waiver is not sought. RECOMMENDATION NO. 5 : Written documentation on the results of each interview be kept on file with HRD for the duration of the project period. RESPONSE: A. This recommendation is adopted in part. B. The Human Resources Director will initiate a procedure whereby the appointing authority is required to submit the results of all final selection interviews conducted for project positions back to the Human Resources Department with the appointment document(s) . These records will be maintained for the duration of the project position. RECOMMENDATION NO. 6 : Written certification to the Board of Supervisors by the Director of Human Resources that all requirements for the establishment, recruitment and selection for Project Position vacancies have been met. RESPONSE: A. This recommendation is adopted. B. This information will be included in the Human Resources Director' s quarterly reports to the Board on direct appointments . t A REPORT BY THE 1995-96 CONTRA COSTA COUNTY GRAND JURY 1020 Ward Street Martinez, California 94553 (510) 646-2345 RECEIVED Report No. 9608 1 2 1996 CLERK BO- OF SUPERVISOR: CC"-::,, --OSTA CO. HUMAN RESOURCES DEPARTMENT- PROJECT POSITIONS Approved by the Grand Jury: Date: RAMiRo JURY FOREMAN Accepted for Filing: _ Dater i v VO F. VAN DE POEL GE OF THE SUPERIOR COURT HUMAN RESOURCES DEPARTMENT PROJECT POSITIONS SUMMARY Use and recruitment for Project Position vacancies in Contra Costa County is subject to misuse and carried a strong potential for conflict of interest in selections. The personnel processes require modification to assure unbiased and appropriate use of this employment method. INTRODUCTION Over the past year, news media attention has been given to this employment of the Mayor of Martinez by the Contra Costa County Assessor for a position in the Assessor Office using Project Position personnel regulations. This report examines the project position processes in detail, using the Assessor Office position as a case study. FINDINGS 1. The Contra Costa County Merit System Ordinance 33-5, Section 33-5.323, states that project positions are excluded from the provisions of this ordinance. 2. Contra Costa County Administrative Bulletin#416.1 sets forth policies and:procedures governing the use of Project Positions. Such positions are: * designated by the County Administrator. * implemented for a specific project. * of limited duration. * financed in whole or in part by federal, state or private agencies. 3. Administrative Bulletin#416.1 states that the"Director of Personnel shall: * maintain a classification plan, and * administer competitive examinations and selection processes for employment -similar to those for positions in the merit service." 4. Section 502 of the Personnel Management Regulations authorizes the Director of Personnel(now Human Resources)to suspend competitive examination for Merit System vacancies and authorize direct appointment,with a provision that a monthly report be furnished to the Board of Supervisors on suspension of competition. ___.5. _-.The Director of Human Resources has interpreted that County regulations on Merit System vacancies to allow suspension of competitive examination for Project Positions vacancies without the need to report such actions to the Board of Supervisors.. 1 e' ^ 6. Out of 100 Project Position appointments between July 31, 1995 and November 13, 1995, only three(3) project positions involving new hires were filled without examination. Of the remainder, seventy-one(7 1)were filled through examination and twenty-six(26)by lateral transfer. 7. An analysis of the paperwork for one(1)of the undocumented project positions filled without examination(Administrative Aids in the Assessor Office)disclosed the following findings: a. processing of the Position Adjustment Request(P300 Form)for appropriate approvals followed prescribed procedures. b. reason given on the P300 Form for the position adjustment was: "To reduce cost of middle management and to expand public service for resolving outstanding residential assessment appeals and to relieve the appellate burden from a more expensive appraisal staff." C. the P300 Form approved by the Administrators Office and the Board of Supervisors did not address an outside source of funding for, or the duration of the proposed position. No rationale was provided as the reason for creating a project position. Funding was indicated through downgrading a vacant supervising appraiser position. d. detailed supporting documentation(not a part of the P300 Position Adjustment Request)indicates that funding for the position was of be obtained from cities and school districts and that a two(2)year period was expected for the position. The position was approved as"Project"based on anticipated non-County funding. e. the original intent of the Project Position, an ombudsman for residents seeking review of their tax assessments,was in conflict from the outset with the interests of the anticipated funding participants(cities and school districts)who were seeking protection of their tax base. f. non-County funding arrangements had not been made prior to all the approvals of ---- -- .the P300 Form. - g. funding from cities and school districts has not been forthcoming other than a grant of$5000 from the Martinez Unified School District. h the State of California,under AB 818, recently provided funds to Contra Costa County for defensive efforts in protecting the County tax base. These funds --_--__-___--___-are, in part,planned to-be used in supporting the Administrative Aide Project -- -----__-_-- . ._ Position. 2 i. the Director of Human Resources waived the requirement for competitive examination and authorized a direct hiring. Reason for this authorization was not documented. It was later explained in documentation to the Internal Operations Committee of the Board of Supervisors that the level of effort required to formulate and administer an examination for a single position was not considered 'Justifiable." j. the position was filled on July 24, 1995. The Contra Costa County Assessor was the selecting official. Four persons are said to have been interviewed;the selectee was the Mayor of Martinez. k the identity of two(2)of the three(3)other persons interviewed is not known. 1. no documentation is available for the selection or results of interviews with the other three 3 persons. ` M. The selecting official(the Contra Costa County Assessor)is also the City Clerk for the City of Martinez and has been a member of its Planning Commission. n. the selected person,the Mayor of Martinez, nominated the selecting official for a City Planning Commission position and was legal counsel for the Assessor on matters relating to the Fair Political Practices Commission at the time of the selection. o. On September 12, 1995,the Board of Supervisors reconsidered its earlier approval of the Project Position based on misperceptions of the role and responsibility of the position. It withdrew its reconsideration but directed the County Administrator to investigate possible revisions to the Personnel Change Form and the information provided to the Board. 8. On October 3, 1995,the Board of Supervisors directed the Human resources Director to provide information to the Internal Operations Committee on"criteria used in determining whether filling a vacant`project' positions will require testing or be accomplished by a direct appointment." 9. On January 16, 1996,the Board of Supervisors reviewed a report from the Internal Operations Committee and requested the County Administrator and the Finance Committee to provide recommendations on criteria for creating and recruiting for project positions. Further,the Board directed County Counsel to prepare"...a general policy statement which encourages appointing authorities who are not appointed by the Board of Supervisors and which directs appointing authorities who are appointed by the Board of Supervisors to avoid situations which maybe viewed as an appearance of a conflict of interest in filling positions, even though no legal conflict exits." 3 10. On February 6, 1996,the Board of Supervisors reviewed the prior report from the Internal Operations Committee, accepting it"... with the understanding that the issue could be revisited if there are additional thoughts of comments that come forward during the year.. 11. On March 12, 1996,the Board of Supervisors approved changes to the Project Position system. The Human Resources Department was directed to: a. "...modify Personnel Adjustment Request form to include identification of project positions, funding sources, duration of the project and potential benefits to be provided by the position." b. -"...provide the Board of Supervisors an updated cost-benefit analysis.of each project position at the half-way point of the project duration." C. "...pursue changing the Personnel Management Regulations to require an examination process for filling project positions that were filled by direct appointment and are subsequently brought into the merit system. CONCLUSIONS 1. The policies and procedures governing the establishment, recruitment and selection of project positions are subject to misuse and require strong top-level management oversight. 2. Recent changes made-to the personnel system at the the Board of Supervisors' are insufficient to avoid potential misuse. 3. -Filling of the Project Position for Administrative Aide in the Office of the Assessor,while in technical adherence to Contra Costa County personnel regulations, was poorly administered, i.e., all elements of the County's approval process treated this action as merely the substitution of a lower paid Administrative Aide position for a more costly Supervising Appraiser. a On May 15, 1995,the County Administrator's Office(CAO)reviewed the Assessor's Office proposal to establish a project position without any evidence of outside funding, indication of position duration or description of the"project," then sent the action to the Human Resources Department(HRD)for evaluation and recommendation without counsel. -b. The HRD obtained the appropriate information but, in.recommending the substitution on May 24, 1995,neglected to disclose key data to the CAO regarding funding, duration and"project"description. C. On May 25, 1995,the CAO approved the recommendations of HRD without comment, forwarding the action to the Board of Supervisors for final approval. 4 ` d. On June 27, 1995, the Board of Supervisors approved the action without comment. 4. Direct hiring into vacant project position is relatively rare. Only three(3)of one hundred (100)positions filled between July 31, 1995 and November 13, 1995 were by direct hire. The remainder involved either lateral transfer of individuals from other positions or resulted from examination.. 5. The information contained in the Position Adjustment Requests(P300 Form)is insufficient to make a reasoned decision on the appropriateness of establishing a project position. 7. The process by which examinations are waived and direct hiring is authorized for project positions is deficient and requires improvement to preclude potential conflicts of interest. RECOMMENDATIONS The 1995-96 Contra Costa County Grand Jury recommends that the Board of Supervisors require a more detailed justification on the establishment, recruitment and selection for vacant Project Positions, to include: 1. written justification for waiver of examination. 2. written conflict of interest statement for any selection made without examination, identifying any relationship between the selecting official and the selected candidate. 3. requirement that the Human Resources Director review the conflict of interest statement and seek Board approval of the selection in sensitive or questionable instances. 4. requirement that at least three(3)identified persons be interviewed for any project position unless waived in writing by the Director of Human Resources. 5. written documentation on the results of each interview be kept on file with HRD for the _duration of the project period. 6. written certification to the Board of Supervisors by the Director of Human Resources that all requirements for the establishment, recruitment and selection for Project Position vacancies have been met. COMMENT Instances of direct hiring for vacant project positions has been, and should be, relatively infrequent. A stronger ethical burden of propriety must be placed on the selecting official and the Human Resources Department to.prevent misuse of this valuable employment tool. 5 ` SECTION 933 (C) OF THE CALIFORNIA PENAL CODE §933. Comments and Reports on Grand Jury Recommendations. (c) No later than 90 days after the grand jury submits a final report on the operations of any public agency subject to its reviewing authority, the governing body of the public agency shall comment to the presiding judge of the superior court on the findings and recommendations pertaining to matters under the control of the governing body, and*every elective county officer or agency head for which the grand jury has responsibility pursuant to Section 914.1 shall comment within 60 days to the presiding judge of the superior court,with an information copy sent to the board of supervisors, on the findings and recommendations pertaining to matters under the control of that county officer or agency head and any agency or agencies which that officer or agency head supervises or controls. In any city and county, the mayor shall also comment on the findings and recommendations. All such comments and reports shall forthwith be submitted to the presiding judge of the superior court who impaneled 'the_ grand jury. A copy of all responses to grand jury reports shall-be placed on file with the clerk of the public agency and the office of the county clerk, or the mayor when applicable, and shall remain on file in those offices. One copy shall be placed on file with the applicable grand jury final report by, and in the control of the currently impan- eled grand jury, where it shall be maintained for a minimum of five years. Leg.H. 1961 ch. 1284, I963 ch. 674, 1974 chs. 393, 1396, 1977 chs. 107, 187, I980 ch. 543. 1981 ch. 203. 1982 ch. 1408 §5, 3985 ch. 221 §I, effective July 12, 1985. 1987 ch. 690 §1. 1988 ch. 1297. Ccoss•References Admissible evidence. Penal Code §939.6. "Grand jury" defined. Penal Code §388. Grand jury report to be based only on own investigation. Penal Code §939.9.