Transparency Questions Swirl Around County Auditor Controller Appointment

JULIE LEOPO, Voice of OC

The Orange County Board of Supervisors at their meeting on Tuesday, Sept. 24, 2019.

County supervisors’ handling of  the appointment for a new Auditor Controller is raising concerns that officials may have violated transparency laws.

After the county’s top fiscal watchdog, Auditor-Controller Eric Woolery, died suddenly in August, it was up to Orange County supervisors to decide who to appoint for the three-plus years remaining in his term.

In recent days, the county announced supervisors are slated to vote Tuesday on appointing Frank Davies, a former executive at the finance agency.

But a statement this week is sparking a new round of questions about how the decision was made.

“We collectively felt it was best to bring someone in who was not in the auditor-controller’s office, but from the outside,” supervisors’ Chairwoman Lisa Bartlett said in an interview with the Orange County Register published Wednesday.

State law – the Ralph M. Brown Act – requires supervisors hold discussions at a publicly noticed meeting anytime a majority of the board talks about policy decisions. But the supervisors haven’t had a single agenda item about the appointment, either in open or closed session, at any of their meetings since Woolery’s sudden death on Aug. 7.

Some county officials, outside groups and a leading expert wonder if the law was violated.

“ ‘We collectively’ is an admission that the issue – whether to appoint from within the existing staff or recruit from outside – was discussed and decided by a majority of the board. The Brown Act requires such issues to be discussed at an open meeting whose topic is stated on the meeting’s agenda,” said Terry Franke, a statewide expert on the transparency law who serves as general counsel of Californians Aware.

Bartlett, citing an all-day meeting Thursday, declined to answer questions on Thursday, Friday and Monday asking how the consensus discussion took place and whether it was through staff.

The chairwoman, who took the lead in proposing Davies’ appointment, did not respond when asked if the Brown Act was violated.

It’s not uncommon for the supervisors’ staff to talk with one another and learn most of the supervisors’ positions on upcoming votes. But such discussions, if communicated back to the supervisors, can break the law.

The Brown Act bans local elected officials from using go-betweens to talk about policy decisions among a majority of the governing board.

“A majority of the members of a legislative body shall not, outside a [public] meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body,” the law says.

Employees can talk with elected officials about decisions outside of a public meeting, but only “if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body,” according to the law.

“I continue to believe that an open and transparent process where by the public gets to see and evaluate with us the potential candidates is the best way to fill this position,” said County Supervisor Don Wagner.

The auditor-controller’s office has about 390 employees, and is tasked with making sure billions of taxpayer dollars are properly accounted for and sent to dozens of school districts, community college districts, county agencies, and others.

Its staff serve as the county’s main accountants, ensuring county payments are properly processed and flagging potential fraud and misallocation of funds.

Woolery’s successor would serve out the rest of his term, running more than three years until January 2023.

Two of the five supervisors – Wagner and Doug Chaffee – said they have not been involved in discussions regarding whether to appoint someone from inside or outside.

“I’ve had no contact,” Chaffee said. “We [do] not have any collective agreement.”

“I continue to believe that an open and transparent process where by the public gets to see and evaluate with us the potential candidates is the best way to fill this position,” Wagner said last week after Bartlett’s statement was published.

It would take three supervisors to move forward with the appointment Tuesday. Supervisors Andrew Do and Michelle Steel, along with Bartlett, didn’t return phone messages for comment.

Chaffee said he hasn’t yet decided how he’ll vote, and Wagner has said he doesn’t plan to vote for Davies’ appointment because he doesn’t plan to serve the full term. Wagner instead wants the county to open up the position for applications, which it did during an opening in 2012 but not this time.

Davies told Voice of OC he’s open to either serving the full term through early 2023, or leaving office sooner.

Davies worked his way up during nearly 34 years at the Auditor-Controller’s Office, starting out as a staff accountant in 1984 and ultimately rising to senior management as chief of the property tax division.

He ran against Woolery for auditor-controller in 2014, and came in second place with 17 percent to Woolery’s 57 percent.

In the run-up to the election, Davies was sued over his ballot title of “Deputy Auditor-Controller,” and four days later agreed to change his title to “Property Tax Director,” according to court records.

Since his retirement in early 2018, Davies has been finance director for the city of Villa Park under its city manager, Steve Franks, who was a county supervisor’s senior aide and director of the county’s Community Resources department.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.