MOORLACH UPDATE — Debating/Delaying — May 21, 2014

Yesterday’s Board discussion on COIN took a couple of interesting twists and turns. The first was a request by County Counsel and a couple of my colleagues to review current negotiating-related aspects of the ordinance in closed session. Although I had some reluctance, as a courtesy, I accepted this request. Then the Chair requested that those in attendance that wished to address the Board do so at that time, before the Board went into closed session, if the speakers were unable to attend the afternoon session. Four speakers decided to take the opportunity then, even though at least one returned for the afternoon session. All four of the speakers were public employee union representatives. Their opposition to transparency provides for the title of the OC Register’s account in the first piece below. As you know, I announced this proposal at a Board meeting, which generated media attention (see MOORLACH UPDATE — COIN — May 2, 2014, MOORLACH UPDATE — PERB — May 3, 2014, and MOORLACH UPDATE — COIN Discussion — May 19, 2014). Consequently, the use of the term “ambush” is exaggerated. And the push back may be disingenuous based on the lack of opposition when the city of Costa Mesa implemented their version.

The second piece on the topic is from the Daily Pilot. For clarification purposes, the proposal refers to the County’s elected Auditor-Controller as the party that would confirm the accuracy of the costs being considered, not the County’s Internal Auditor. For the record, I have never stated that I had plans to run for Orange County Auditor-Controller. This was mentioned in the OC Register piece. Stating such may reflect a use of too many assumptions in attacking the COIN proposal.

The third piece on the topic below is from the Voice of OC. Although it was published prior to the meeting, it covers many of the points that were discussed during the Board meeting by the various parties that are quoted.

The fourth piece below, from the Lake Forest Patch, addresses another Board agenda item. The 2013-2014 Orange County Grand Jury issued a report that required a Board response on the topic of restaurant food safety. The first time it came before the Board, it was referred back to the Health Care Agency (HCA) for modification (see MOORLACH UPDATE — Restaurant Safety — April 28, 2014). Yesterday we approved the newest response, with minor modifications. HCA will return to the Board on July 22nd with the proposal for a color-coded system and the related costs. I have two concerns. The first is that HCA has not been able to increase its fees for actual costs since 2008. To my aggravation, but not amazement, a good portion of the increasing costs for food safety inspections relates to pension cost increases. Therefore, an increase in fees will not be related to the color-coded system. Which leads to my second concern. The changing of decal colors from orange to green, yellow or red is a de minimis cost. Therefore, I did not want the topics combined (an overdue fee increase has nothing to do with the current topic of discussion). And I did not want fee increases for re-examinations to be incentives for generating revenues, not unlike the incentivizing of traffic officers issuing moving violations to meet revenue quotas versus providing a true public safety effort.

Speaking of the Grand Jury, the Board also considered a supplemental item that was added late Friday afternoon to the agenda, which was covered by the OC Register in the fifth and final piece below. I pointed out that there are two issues. The first is fiscal. The state of California has absconded with $73 million per year of the County’s general fund revenues. Consequently, cost cutting should be reviewed across-the-board. The second is the 2012-2013 Grand Jury, which issued a report that was most disappointing. It was not the one referred in the article, it was "A Call for Ethical Standards: Corruption in OC." The Grand Jury should be a source of assistance in providing accountability, guidance and, when necessary, ferreting out specific instances of fraud or other criminal activity. In order for the Grand Jury to be effective, it must be credible. The 2012-2013 Grand Jury deeply scarred the credibility of past and future Grand Juries. Not one indictment, incident or arrest was made by this Grand Jury to eradicate corruption. And its recommendations actually reflected the ineffectiveness of the Grand Jury in addressing corruption. If you want to sensationalize a topic as well as demonstrate your irrelevance, then this Grand Jury did it in the boldest fashion. My independent research found that this particular Grand Jury did not consult with the Presiding Judge, and when they did, they disregarded the counsel that was provided. It is unfortunate, as Grand Jury members should be professional and beneficial, not arrogant and grand standers. Let’s hope that future Grand Juries learn from this episode and determine to conduct themselves with the proper decorum and demonstrate the importance of their critical roles in a manner becoming of the positions they hold.

Talks proposal riles county labor

Defenders say COIN would maximize transparency.


Irony alert: The Orange County Board of Supervisors went into closed session Tuesday to discuss an openness ordinance.

Worker union reps objected vociferously to the proposed “Civic Openness in Negotiations” law, calling it “criminal,” “an ambush,” “another knife in the back,” “a thinly veiled attempt to further politicize an overpoliticized process,” and threatening to sue if the board proceeds.

After emerging from closed session, supervisors argued over specifics for more than an hour, ordered up a legal analysis and asked for refinements to be considered on June 17.

We’ve talked about how cloak-and-dagger contract negotiations between municipal governments and their workers have been: Lots of closed-session, hush-hush, top-secret-type stuff, followed by the sudden appearance of a contract which comes to swift city council or board vote and then is a done deal – before, critics charge, the public (and even some of the people voting on it) really understand what it promises or what it will cost.

In 2012, amid similar angst, Costa Mesa went where no government had gone before, approving an ordinance forcing employee contract negotiations out of the darkness and into the light. Costa Mesa trumpeted COIN as “an unprecedented piece of municipal legislation that would bring maximum transparency to city labor negotiations, which have been traditionally done outside of public view and with little chance for the public to review the contracts prior to their approval.” It was the brainchild of Councilman Steven Mensinger, and versions have been adopted in Beverly Hills and Pacific Palisades, debated in Fullerton and rejected in Fountain Valley.

Supervisor John Moorlach’s version went to the board Tuesday, setting off fireworks.

• Issue: High-ranking managers and finance types routinely represent their cities and counties at the bargaining table, even though they too might benefit from pay raises and perks negotiated for employees. Moorlach’s solution: allow, but don’t require,the Board of Supervisors to hire an independent negotiator to represent the county in contract talks with employee unions. Costa Mesa took this farther, requiring the city to hire an independent negotiator with no dogs in the hunt, and forbidding anyone who would benefit from a new contract from negotiating it. Moorlach’s version makes this optional because the county has many employee organizations of varying sizes and complexity, and it could be expensive to hire an independent negotiator for each one. The supervisors would have to make that call in public, the proposal says.

• Issue: City councils and county supervisors might not fully understand what new contracts promise, or what they’ll really cost, before voting on them. Moorlach’s solution: Have the Orange County auditor-controller call out the costs of each benefit in the current and proposed contracts for all to see – and publicly argue about. Costa Mesa took a slightly different tack here, requiring an independent auditor to do this. Labor folks argued that the county’s auditor-controller is not truly independent – though it’s an elected post, the auditor-controller’s budget is dependent upon the Board of Supervisors – and that they expect Moorlach to run for that post someday soon. More thought will be given to who provides the accounting.

• Issue: The public, which is paying the bills, doesn’t know what’s happening behind closed doors until deals are done. Moorlach’s solution: Require the Board of Supervisors to “report out” from closed session any and all offers and counteroffers and require that proposed contracts be posted on the county website – and placed on the board’s meeting agenda – at least a week before any vote is taken. Negotiations would still happen in private, as they do now, but the public reporting would be new. This is essentially the same as Costa Mesa’s version.

Moorlach’s version of COIN would also require supervisors and staffers to report “all formal and informal communication with official or unofficial representatives of each employee organization.”

“In adopting these policies and procedures, the labor negotiation process will become substantially more open and transparent to the taxpayers of Orange County,” Moorlach’s proposal says. “All parties will benefit from independent financial analysis of contract proposals with input opportunities.”

That’s not at all how employee unions see it.

“If you address every nuance publicly, issues become a popularity contest and not good governance. It is impractical and unnecessarily time consuming and expensive,” said Tom Dominguez, president of the Association of Orange County Deputy Sheriffs, which is currently at loggerheads with the county over a new contract.

“It provides a false sense of cost because it fails to take into account competing government entities, the cost of givebacks and concessions from prior contract agreements, and the cost of recruitment and retention of employees. This is solely intended to mislead the public. Successful negotiations rely on a sense of trust. This would have a complete chilling effect on the process.”

Nick Berardino of the Orange County Employees Association – the county’s largest union, which also represents Costa Mesa city workers and thus is versed in COIN – said that if supervisors want transparency, they need it across the board.

“The public is even more interested in how you’re getting money on contracts you vote for,” Berardino said, citing figures for information technology contracts, parking contracts and more. “The money is bundled through lobbyists and, more often than not, you approve those contracts for your political contributors. People want to know that too … but you want to focus on the unions. We are mere paupers in terms of what you let out in terms of contracts … You will never want to show how this money gets laundered into your pocket.”

Folks from the association for deputy district attorneys, and those who care for the county’s buildings, complained of ambush, and said the county needs to negotiate with them and give them proper notice before adopting an ordinance like this. If they need to go to court, they will, they warned.

Costa Mesa, meantime, hasn’t been sued, and COIN is proceeding fairly smoothly.

“The only thing it does is force people to understand the numbers,” said Mensinger, COIN’s originator. “It takes something out of the dark and puts it in the light.”

Contact the writer: tsforzaTwitter: @ocwatchdog

Supervisors debate COIN-like ordinance

They ultimately put off a decision on whether to adopt a new transparent process for negotiating employee contracts.

By Jill Cowan

Orange County supervisors on Tuesday debated implementing an ordinance aimed at increasing transparency in labor negotiations, but voted unanimously to put off a decision until next month.

Supervisor John Moorlach proposed the measure, which was modeled on Costa Mesa’s Civic Openness in Negotiations ordinance. COIN, adopted in 2012, set new standards for the city’s negotiations with employee unions.

Under the proposed county ordinance, each side would be required to make its offers public. It would also require the county to post an analysis of the economic effects of each offer, among other provisions.

The county already hires an independent professional negotiator to bargain on the county’s behalf, and the ordinance would keep that practice in place.

Moorlach has said that a COIN-like ordinance could lessen the drama associated with employee contract negotiations by opening up aspects of the bargaining process for public scrutiny.

The decision to hold off on moving the item forward came after a lengthy discussion, which — ironically, as Supervisor Todd Spitzer pointed out — started out with a 15-minute back-and-forth over whether to move into closed session to talk about legal issues that could arise from the ordinance. Ultimately, a portion of the debate took place behind closed doors.

Union representatives blasted supervisors for considering a rule that they said would have a chilling effect on an already sensitive, difficult process.

Nick Berardino, general manager of the Orange County Employees Assn., echoed concerns that his organization raised before Costa Mesa implemented its COIN ordinance. He said transparency is great as long as it applies "across the board," including contracts negotiated with outside companies.

Tom Dominguez, president of the Assn. of Orange County Deputy Sheriffs, took issue with the fact that, according to the proposed ordinance, the county’s internal auditor would be responsible for determining the fiscal impact of contract offers.

That, he said, would pose a conflict of interest, since the auditor reports to the Board of Supervisors.

"This ordinance is nothing more than a thinly veiled attempt to further politicize an already political process," Dominguez said. "It is solely intended to mislead the public."

He added that the use of an outside negotiator is expensive.

Documents compiled by Liebert Cassidy Whitmore — the same firm that Costa Mesa hired to negotiate on its behalf — showed that from January of 2012 through March of this year, the county had been billed $755,121, about 13% of which was for travel time to and from Los Angeles.

Deputy Dist. Atty. Mena Guirguis, who spoke as vice president of the Orange County Attorneys Assn., warned that the county could face litigation if it didn’t clarify many of the ordinance’s terms. As written, he said, the ordinance could have a harmful effect on contract negotiations.

"You are making a big mistake by rushing into this," he said. "If we need to go to court, we will."

Supervisors asked staff members to explore ways of amending the ordinance to address the concerns of Dominguez and Guirguis, such as including explicit language to keep the ordinance from taking effect for contracts currently up in the air and having someone other than the county’s internal auditor complete the financial analyses.

The board is expected to consider a more finely tuned version of the ordinance June 17.

Supervisors Debate Opening Labor Talks


Following the complete collapse of labor talks with nearly 2,000 deputy sheriffs in Orange County last month, county supervisors – already turning on themselves over last month’s formal impasse in negotiations – will publicly debate today whether it’s time to entirely open up the county’s labor talks.

The effort, led by County Supervisor John Moorlach, is in turn drawing intense protests from Orange County’s union leaders who argue that transparency in negotiations shouldn’t just be reserved for labor talks but should apply to all government contracting — including multi-million dollar computer contracts, development deals and land purchases.

Last month, County Supervisor Todd Spitzer publicly questioned the tone and direction of labor talks with the deputy sheriffs after Supervisors’ Chairman Shawn Nelson declined to schedule a closed session to consider counterpoints to the formal county offer — apparently privately negotiated by Spitzer with the deputy’s union.

In the wake of a recent judge’s decision that the county negotiator acted in bad faith, Spitzer has been openly critical of continuing the approach.

"Just do everything in public including hearing from the bargaining unit so everything is understood and we don’t spend hundreds of thousands of dollars on "he said, she said," Spitzer added.

Nelson, meanwhile, has called out Spitzer saying he “lacks integrity” because he votes and sounds one way in closed session and has a different face in public, especially in front of deputies.

Shortly after the last month’s dispute surfaced, Moorlach jumped out in front of his colleagues and called for opening up the county’s labor negotiations – suggesting an approach similar to the COIN (Civic Openess in Negotiation) ordinance adopted in recent years by the Costa Mesa city council.

While Moorlach noted that several aspects of COIN are already being used at the county level, such as a private negotiator and cost estimates of proposals.

Without mentioning the situation with Spitzer, Moorlach has written publicly that ex-parte communications needed better regulation.

“Any (ex parte) communications between individual supervisors and bargaining unit representatives must be disclosed in public. In other words, if a Supervisor is discussing deal points and going around the independent negotiator, the other Supervisors and the public should be noticed of this activity,” wrote Moorlach in his May 2 Moorlach Update electronic newsletter.

“It would certainly put an end to that,” Nelson said, referring to the controversy involving Spitzer.

“Any and all lobbying activity, including e-mails, letters, and conversations, must be disclosed. This would make the employee union bargaining process truly transparent,” Moorlach added.

Yet that kind of emphasis on making labor talks open has drawn a direct response from labor.

“Transparency should extend to members of the board of supervisors regarding contracts which they award to their political contributors, friends and lobbyists who bundle contributions from entities and individuals that are seeking public money,” said Nick Berardino, general manager for the Orange County Employees Association.

“They should disclose ex-parte discussions with lobbyists, contributors and other representatives seeking public money and political contributions received from those parties,” he added.

Nelson said Berardino’s focus is misguided.

“I don’t see it as being focused on the union guy as Nick does,” Nelson said. “I see it as focused on my colleagues. I’m trying to keep track of my guys.”

Spitzer, in turn, however said that the COIN proposal would have a limited impact because "it doesn’t cover most of the board-approved ‘supposals’ that have been going back and forth for months. It’s all a farce."

Nelson countered Berardino’s arguments about covering all advocates by noting that reforming the labor talks process shouldn’t be connected to lobby reform.

“The people who are paying the bill in labor negotiations, and only labor negotiations, only have an idea of what the deal is when the deal is already done,” he said.

Nelson said regulating the other side of the football is a discussion for another day.

“There is a valid discussion to have about lobbyists. And I’m willing to have that discussion,” Nelson said.

“Yeah,” replied Berardino. “Then have them go first.”

Nelson counters that he’s not a fan of having anybody track ex-parte conversations in politics.

“I’ve got to look at it realistically,” Nelson said. “I’m not going to become an accountant. I don’t have time to keep track of every person I talk to.”

Yet for Tom Dominguez, president of the Association of Orange County Deputy Sheriffs, Nelson and Moorlach’s focus on COIN is anything but realistic.

“I’m not at all surprised with Chairman Nelson’s claim that this ordinance is a necessity,” Dominguez said. “It is clear that this is his reaction when he does not get his way. As Chairman I would expect him to lead. Instead he chose to engage in inappropriate public dialog."

Dominguez argues that the COIN approach misses an important aspect of labor negotiations.

“This ordinance provides only gross cost analysis. It provides a false sense of cost because it fails to take into account competing government entities, the cost of givebacks and concessions from prior contract agreements, and the cost of recruitment and retention of employees,” he said.

Most importantly, Dominguez stresses “successful negotiations rely on a sense of trust.”

“This,” he said referring to COIN, “would have a complete chilling effect on the process.”

Lake Forest

Grading System for O.C. Restaurants Delayed for More Study

The Orange County Health Care Agency is supposed to present to the board by July 22 a plan for color-coded signs.

Posted by Penny Arévalo (Editor)

Orange County supervisors put up another yellow light on the road to developing a restaurant rating system today by declaring that grand jury recommendations need more study.

In April, the board voted 3-1, with Supervisor Janet Nguyen abstaining, to ask staffers to refine a plan for grading restaurants on how they conform to the county’s health and safety code. A majority of supervisors signaled they wanted colored-coded grades — red, green or yellow signs indicating if the establishment passed and inspection, conditionally passed or failed.

But instead of a declaring their intent to issue signs indicating a "conditional pass," which was one of a grand jury’s recommendations, the board voted to say the proposal needs more study. The supervisors needed to issue a statement today to comply with a June 3 deadline to respond to the grand jury report.

The Orange County Health Care Agency is supposed to present to the board by July 22 a plan for color-coded signs, along with cost estimates for issuing them and doing more inspections. At issue is whether new fees would be required to cover the cost increases for follow-up inspections at restaurants that received a "conditional" pass.

Orange County Board Chairman Shawn Nelson voted no.

"I think we’d be well-served to just go with a pass-fail" system, he said.

Supervisor Janet Nguyen said she would not support any changes that required a fee increase.

County officials told board members a fee increase would be needed to pay for the reinspections.

"I just hope there’s an understanding that this Polyanna view that we can do more and not charge for it is not going to fly," Nelson said, referring to Nguyen’s staunch opposition to fee increases.

"I don’t like fees, nobody likes fees," Nelson added. "But (HCA’s) workload could double on re-inspections… and if you don’t have extra money it will delay things… If we’re not going to vote for a full solution then a half solution won’t help anybody."

Supervisor Todd Spitzer said he favored "cost recovery for those people who use more services," meaning restaurants that require more inspections.

Spitzer urged county officials to get rid of "awards of excellence" that were given to some restaurants to encourage better food-handling practices.

"People leave them up for years, and I think they’re misleading," Spitzer said.

Inspectors are encouraging restaurateurs to take down the awards, staffers told Spitzer.

Supervisor John Moorlach warned county staffers that any increased fees would have to be justified and not just another way to raise revenue.

–City News Service

Supervisors back off slashing grand jury pay


Grand jurors say a plan by the Orange County Board of Supervisors to slash their pay is retribution for past investigations, but the board says it’s Sacramento’s doing.

Supervisors on Tuesday considered an ordinance to cut grand jury pay by 70 percent, taking the daily rate from $50 to $15 – the minimum amount mandated by state penal code. The item, introduced by Supervisor Shawn Nelson, was discussed, then tabled. The review came just as new jurors were selected to start service.

The proposal follows heated discussions nearly a year ago when supervisors and grand jury members squared off when Supervisor Todd Spitzer introduced reducing juror pay as a way to save several hundred thousand dollars in the county’s $5.4 billion annual budget.

At that time, the board asked for a review of recruitment, compensation and retention, but it was never conducted. The board noted Tuesday that should be done before any action is taken.

“I think we blew this one when we applied last year,” Spitzer confessed. “We suffered criticism because it made us look like we were retaliating. The daily stipend could make the difference between someone applying and not applying, especially if they‘re retired. I’m very concerned if we can’t get citizens to apply. They truly do a very important public service.”

The grand jury consists of 19 county residents, often retirees, who serve for 12 months starting in July. It is empowered to bring criminal indictments and conduct civil investigations of county and city governments. Many who serve say they do it as a way to give back and add that serving provides insight into law enforcement and county agencies. Jurors in Los Angeles County get $60 a day and jurors in San Diego County are paid $25.

On Tuesday, Nindy Mahal was selected to the grand jury for the third time, which included an era supervisors called “rogue” following a report titled, “CalOptima Burns While Majority of Supervisors Fiddle.” That 2013 study rankled supervisors and caused Supervisor John Moorlach to characterize the study as “sensational and tabloidish,”

“A Call for Ethical Standards: Corruption in Orange County,” released in April also drew supervisors’ outrage.

The CalOptima report cited the departures of 16 senior executives within 18 months after Supervisor Janet Nguyen joined its board. The jury recommended that more than one supervisor serve on CalOptima’s board, and that county staff members be removed from the board. The supervisors rejected both recommendations.

Nguyen said she had to hold a press conference to defend herself following the grand jury’s allegations. “I pleaded to them not to release the report. I wanted to come and speak to them,” she said. “You were supposed to be objective. I don’t respect the 2012-13 report.”

Still, Nguyen distanced the report and the proposal to cut juror’s pay. “This has nothing to do with going against the grand jury.”

But Mahal, who has a background in accounting and finance, recalled events differently. “We kept trying to arrange a time to meet her and we’d show up and she would have just canceled.”

Like Mahal, dozens of current and past grand jurors called the supervisors actions to cut their pay conspiratorial.

For Mahal being a juror has changed his life. “I was born in India and it’s such a corrupt country,” he said. “The grand jury is a very important institution. It keeps the Board of Supervisors, city and county officials and law enforcement in line. They are aware that someone is watching and they know they can’t escape in their misdeeds.”

Supervisors “can’t control the grand jury,” said John Moohr, president of the Grand Jury Association. “The only thing they can control are the fees.”

Nelson said if it were up to him, he’d give the grand jurors $100 a day. He plans to look for legislation to set an appropriate fee for reimbursement. He added the state took $78 million from the county last year, and that the discussion of lowering the grand jury’s pay coincided with that.

“It’s easy to assume there was a grand conspiracy,” Nelson said. “We’re responding to a state mandate that is improperly funded.”

Contact the writer: 949-492-5152 or eritchie or

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