New rules up for a vote today could formalize more control for the Orange County supervisors’ chairman, who currently is Andrew Do.
The changes to the Board of Supervisors rules would grant the chair control over all appointments to county boards, commissions and committees for seats that aren’t designated for specific supervisors’ districts.
And they would give the chair the sole power to let supervisors delay or delete an agenda item that they’ve already delayed or deleted once before.
While the chairperson officially is one vote out of five on policy decisions, they preside over the supervisors’ meetings and serve as the ceremonial leader of the Board of Supervisors.
Behind the scenes, the chair also has significant influence over county staff, under an unwritten practice currently called the “chairman’s prerogative.”
Do didn’t return a phone call and text message seeking comment.
The changes to delay and deleting items is trying to fix a problem that doesn’t seem to exist, said Supervisor Katrina Foley.
“I don’t know what the reason is behind it. I’m not sure what the problem is they’re trying to solve. I don’t see this as being a problem.”Supervisor Katrina Foley
The county staff report doesn’t give a reason for those changes.
As for the changes to appointments, those would formalize what the county has already been doing as part of an unwritten approach, said Foley, who was elected in March.
“It’s good to have it memorialized” in writing, Foley said in an interview Monday.
“It was an unwritten practice that the chair was appointing [people] to the at-large positions,” she added.
Foly said the issue came up after she took office and nominated someone for the Human Relations Commission, without being told there’s an informal policy where the chair appoints at-large seats.
“When I came in, I saw all these vacancies, according to the information provided to me from the clerk. And so I just went about trying to appoint people to positions that were vacant, that were previously appointed by Michelle Steel,” said Foley, who was elected to replace Steel after Steel was elected to Congress.
“Apparently what happened was she [made the appointments] when she was chair … Which no one told me,” Foley said.
The other supervisors didn’t return messages for comment.
Some of the chair’s powers have triggered legal action against the county in recent years.
Until this year, the chair had the power under board rules to decide whether residents could mention supervisors’ names during public comments.
That prompted a lawsuit from the ACLU – which after years of litigation got the supervisors to toss the policy.
The comment restrictions were rarely enforced in recent years by the supervisors’ chair, with at least two exceptions.
One was at a June 2017 supervisors’ meeting, when a public speaker mentioned a supervisor’s name during public comments.
Steel, the supervisors’ then-chairwoman, interrupted the speaker and said, “you can’t comment on individual supervisors here.”
The next speaker, attorney and activist Mohammed Aly, then told Steel that’s an unconstitutional restriction on speech and proceeded to mention each supervisor by name.
A few months later, in November 2017, a homeless advocate critical of the supervisors asked Steel if he could address a particular supervisor by name.
In response, Steel told David Duran he “can talk whatever you want. Except attacking.”
The OC Superior Court judge overseeing the lawsuit ruled in July 2019 that the county probably violated the U.S. Constitution with its restrictions on commenters questioning or naming supervisors unless the chair allows it.
“Defendants offered no evidence to show how the Chair determines whether to permit a speaker to address and individual Board or staff member,” wrote Judge Sheila Fell.
She also found the chair wasn’t evenly applying the speaking rule.
“Defendants offered no evidence to contradict Plaintiff’s showing that the Chair enforces the prohibition against those critical of the Board and grants permission to those who are complimentary,” Fell added as she issued a court order banning the count from enforcing the rule.
“Plaintiff met its burden to show it is likely to prevail on the claim that the Rule is unreasonable, and in turn, unconstitutional.”
Nick Gerda covers county government for Voice of OC. You can contact him at firstname.lastname@example.org.