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The Obligations of a County Administrator on the Way Out After a Scandal
Saturday, May 28th, 2011
Robert Wechsler
As if Florida hasn't had enough scandals lately, there is now a mess in
Sarasota County, on Florida's Gulf Coast. The focus is on terrible
procurement policies and procedures that apparently allowed a lot of
unethical behavior to occur. But as is usually the case, the center of
the problem appears to have been the adminstration's attitude. And that attitude seems to have come out in the negotiations over the county administrator's severance package.
An Environment of Intimidation and No-Bid Contracts
According to an article in the Herald Tribune earlier this week, the county administrator has been accused of quashing dissent. A frequent critic of the county's growth policies is quoted as saying that the administrator responded to criticism with "vindictive retribution." Intimidation of government employees and citizens is a strong indication of a poor ethics environment. It is also the best indication that part of a poor ethics environment is behavior that undermines both public participation in government and internal criticism and discussion of ethics matters.
The problems in Sarasota County include a year-old FBI investigation into $3 million in no-bid computer contracts; the arrest of a middle-level manager for bribery; the firing of six county employees for violating ethics and purchasing policies; and the alleged bypassing of competitive bidding laws by using a public-private development corporation to make a no-bid contract with a design firm, a contract approved by the county administrator and the county commission.
The National Institute of Governmental Purchasing was hired to do a thorough review of the county's procurement policies and procedures. A draft report was published this month.
An Administrator's Obligations on Leaving Office
The county administrator has taken full responsibility for the procurement problems, but he wants to make a deal. According to a Wednesday editorial in the Herald Tribune, he has offered to resign 17 months before the end of his contract, in exchange for a buyout — $265,000 in salary and benefits, plus "entitlements" of about $15,000 in accrued vacation pay and about $24,000 for three years of post-employment health care.
That is supposedly $120,000 less than what he would be owed if he worked through the end of his contract. But he has admitted that he was responsible, that his effectiveness has been compromised, and that he must leave for the sake of the public's trust in the county government.
A severance package would be reasonable, but $300,000 for a year and a half doesn't sound like a fair severance package to me.
Not only is the package unfair, but the administrator rejects a "clawback" provision that would get back some or all of the money if he were found guilty of an offense that would have allowed the county, if it had the information now, to fire the administrator for good cause, with no severance.
But he may agree to affirm that he has committed no crimes as an administrator. That would be a nice gesture, but what would be the downside if he was indeed convicted down the road?
The editorial opposes a clawback provision, because there was not one in the contract and because there has been no evidence shown of wrongdoing. However, this clawback would not be of salary paid for work done, but rather of salary paid for work not done. Perhaps this sort of "clawback" provision should be included in a contract, but then it would have to be imposed on an official when there is even less evidence that wrongdoing would become an issue. I don't know much about employment contracts, but my guess is that few make provision for leaving due to a scandal that the official has taken responsibility for (verbally) and that has undermined the employee's ability to function in his job, but where there is no evidence of wrongdoing.
As for evidence of wrongdoing, if six of his subordinates have been fired and one arrested for bribery, is that not evidence of wrongdoing that he has failed to prevent? That should be enough to at least consider that there might be more wrongdoing, and that his role in it might turn out to be more than managerial incompetence. For instance, there would be wrongdoing if the allegations that he signed an illegal no-bid contract turn out to be true. This is not a crime perhaps, but it would be breaking a law.
There are two things going on here: what can be done legally by the county, knowing that the county administrator could file suit against the county if he doesn't get the deal he wants; and what should be done ethically by someone who has no choice but to leave office, who has taken responsibility for what occurred, and yet who has a contract. Doesn't an official have an obligation, in this situation, to consider his contract effectively broken, either due to incompetence or corruption, and work up from there rather than down from what he would be owed were everything okay? Does everything have to be spelled out in a contract in order for an official to have an obligation? Is there nothing but law and the threat of suit even after all that has happened?
Robert Wechsler
Director of Research-Retired, City Ethics
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An Environment of Intimidation and No-Bid Contracts
According to an article in the Herald Tribune earlier this week, the county administrator has been accused of quashing dissent. A frequent critic of the county's growth policies is quoted as saying that the administrator responded to criticism with "vindictive retribution." Intimidation of government employees and citizens is a strong indication of a poor ethics environment. It is also the best indication that part of a poor ethics environment is behavior that undermines both public participation in government and internal criticism and discussion of ethics matters.
The problems in Sarasota County include a year-old FBI investigation into $3 million in no-bid computer contracts; the arrest of a middle-level manager for bribery; the firing of six county employees for violating ethics and purchasing policies; and the alleged bypassing of competitive bidding laws by using a public-private development corporation to make a no-bid contract with a design firm, a contract approved by the county administrator and the county commission.
The National Institute of Governmental Purchasing was hired to do a thorough review of the county's procurement policies and procedures. A draft report was published this month.
An Administrator's Obligations on Leaving Office
The county administrator has taken full responsibility for the procurement problems, but he wants to make a deal. According to a Wednesday editorial in the Herald Tribune, he has offered to resign 17 months before the end of his contract, in exchange for a buyout — $265,000 in salary and benefits, plus "entitlements" of about $15,000 in accrued vacation pay and about $24,000 for three years of post-employment health care.
That is supposedly $120,000 less than what he would be owed if he worked through the end of his contract. But he has admitted that he was responsible, that his effectiveness has been compromised, and that he must leave for the sake of the public's trust in the county government.
A severance package would be reasonable, but $300,000 for a year and a half doesn't sound like a fair severance package to me.
Not only is the package unfair, but the administrator rejects a "clawback" provision that would get back some or all of the money if he were found guilty of an offense that would have allowed the county, if it had the information now, to fire the administrator for good cause, with no severance.
But he may agree to affirm that he has committed no crimes as an administrator. That would be a nice gesture, but what would be the downside if he was indeed convicted down the road?
The editorial opposes a clawback provision, because there was not one in the contract and because there has been no evidence shown of wrongdoing. However, this clawback would not be of salary paid for work done, but rather of salary paid for work not done. Perhaps this sort of "clawback" provision should be included in a contract, but then it would have to be imposed on an official when there is even less evidence that wrongdoing would become an issue. I don't know much about employment contracts, but my guess is that few make provision for leaving due to a scandal that the official has taken responsibility for (verbally) and that has undermined the employee's ability to function in his job, but where there is no evidence of wrongdoing.
As for evidence of wrongdoing, if six of his subordinates have been fired and one arrested for bribery, is that not evidence of wrongdoing that he has failed to prevent? That should be enough to at least consider that there might be more wrongdoing, and that his role in it might turn out to be more than managerial incompetence. For instance, there would be wrongdoing if the allegations that he signed an illegal no-bid contract turn out to be true. This is not a crime perhaps, but it would be breaking a law.
There are two things going on here: what can be done legally by the county, knowing that the county administrator could file suit against the county if he doesn't get the deal he wants; and what should be done ethically by someone who has no choice but to leave office, who has taken responsibility for what occurred, and yet who has a contract. Doesn't an official have an obligation, in this situation, to consider his contract effectively broken, either due to incompetence or corruption, and work up from there rather than down from what he would be owed were everything okay? Does everything have to be spelled out in a contract in order for an official to have an obligation? Is there nothing but law and the threat of suit even after all that has happened?
Robert Wechsler
Director of Research-Retired, City Ethics
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