Monday, December 20, 2010 | The Orange County Supervisors next month will debate in closed session whether Chief Executive Tom Mauk should move forward with his hiring of Chapman University law professor Mario Mainero to help with the county’s upcoming appeal of a pension lawsuit that’s being watched across the state.

Mauk quietly contracted with Mainero, a brash and controversial former chief of staff to Supervisor John Moorlach, earlier this month.

And though Mauk said Mainero will be paid no more than a few thousand dollars for his work, the hiring set off alarm bells throughout the county administration building.

Mainero was instrumental in framing the legal argument behind the lawsuit, which states that the county illegally gave away as much as $187 million when it retroactively granted pension benefits to sheriff’s deputies in 2001.

Conservatives, Moorlach in particular, love the argument.

Others, such as the Association of Orange County Deputy Sheriffs, disagree vehemently with Mainero’s theory. They point to the decision of a Los Angeles County Superior Court judge (who rejected the case without a hearing) as an example of the theory’s weakness.

Supervisors have spent more than $2 million on the case, and their appeal comes forward for a hearing next month. That’s why, Mauk said, he wanted to bring Mainero on board.

Yet the legality of his hiring has already come under fire. The central question is whether Mainero is a consultant, which Mauk claims he is, or outside legal counsel.

If Mainero is considered outside counsel, then the hiring does not jibe with state law, which holds that it needed to have been done officially by the Board of Supervisors, said open government expert Terry Francke said. (Franke is general counsel for Californians Aware and is Voice of OC’s open government consultant.)

In other words, Francke said, Mauk’s hiring of Mainero should not be something that other supervisors learn about after the fact.

Mauk said the work Mainero will do for the county falls under the umbrella of consulting work. “The contract which I’ve signed with Mario hires him as a consultant and adviser,” Mauk said. “It’s not for legal advice.”

But what do you hire a lawyer for, if not for his legal advice? Francke wonders.

“He’s not being hired as a mere consultant,” Francke said. “He’s being hired as counsel, and that should have gone to the board.”

While there’s often need for technical experts in certain cases, Francke said, those are typically hired by the county counsel’s office, not the CEO. Francke also wonders what Mainero could be advising county officials about other than legal issues.

“There’s no technical aspect to this. … We’re talking about prosecuting the case itself,” Francke said.

“The advice is legal advice. And the term consultant is misleading and, I believe, intentionally misleading. If you hire somebody with a law degree to help you on a case, he’s not a consultant. He’s a lawyer.”

At the Dec. 14 board meeting, Board of Supervisors Chairwoman Janet Nguyen asked Mauk about the hiring, although she declined to mention Mainero by name.

“I was not aware of this,” Nguyen said publicly before agendizing a private discussion of the matter for a Jan. 11 closed session.

Nguyen indicated there was confusion about Mainero’s role. She wanted “a little background on the hiring.”

People with long memories on the fifth floor of the county’s Hall of Administration get sensitive about the hiring of attorneys. Apparently, lawyers were oftentimes secretly hired as consultants during the El Toro airport wars of the last decade.

Recently, the district attorney finished an investigation into how former state Sen. Dick Ackerman was hired by the Orange County Fair Board to lobby Sacramento on the sale of the fairgrounds.

Ackerman was hired through an environmental consultant to the Fairgrounds’ governing body.

Because California law requires public agencies hiring outside counsel to do so on a two-thirds vote, some senior county officials got suspicious that Mainero was being slipped in behind closed doors.

Mainero declined to comment on his hiring. However, Mauk took full ownership of the Mainero hiring in open session.

“The arrangement was done by me,” Mauk said, “so if there’s issues, they relate to me.”

Nguyen’s action of pulling the contract for discussion in closed session likely remedies the situation, Franke said.

On this point, Mauk agreed with Francke, adding that “the board will now talk about whether they want to use Mario.”

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