The city councilman who wrote Gilroy’s Open Government Ordinance
is questioning the legality of the council’s closed session
decision last month to give raises to the city administrator and
clerk. However, colleagues, past and present, said he’s
overreacting and should have spoken up earlier.
The city councilman who wrote Gilroy’s Open Government Ordinance is questioning the legality of the council’s closed session decision last month to give raises to the city administrator and clerk. However, colleagues, past and present, said he’s overreacting and should have spoken up earlier.
On Aug. 3, the Gilroy City Council held a closed session to evaluate the annual performances of City Administrator Tom Haglund and City Clerk Shawna Freels. Afterward, a city official present during the session, who requested anonymity because discussions are ongoing, told The Dispatch that the council voted 4-3 to approve a $4,700 raise for Freels, who earns $94,906, and 6-1 to approve a nearly $10,000 raise for Haglund, who earns $199,000, according to city figures. The council will ultimately vote on the 5 percent raises during a future open session.
Councilman Perry Woodward, a real estate and commercial lawyer, said today that these votes were a legal oversight.
State and local law permit closed sessions to evaluate employee performance, but the Gilroy Open Government Ordinance mandates, “salary and benefits of members of the City Council, the City Administrator, and the unrepresented employees” – including Freels – “will be discussed and acted upon separately by the City Council in open session.”
While the council must ultimately approve all union contracts in open session after closed-door negotiations, Freels and Haglund are Gilroy’s only two council-appointed employees, and the language in Gilroy’s law – passed last year – presents a challenge to business as usual at City Hall, Woodward said.
“It appears we made a mistake,” Woodward said today. During the Aug. 3 votes, there were doubts “in the back of my mind,” he said.
Before a closed session – which state and local laws permit for property negotiations, legal counseling, union contracts and public safety emergencies – the council votes to see if everyone agrees the meeting should be private. Local law also requires a vote after a closed session for the body to decide whether it will reveal any information.
Everyone agreed to proceed behind locked doors Aug. 3 and not reveal anything, Mayor Al Pinheiro said. Council members eventually voted to give Haglund and Freels raises, and state and local laws require any closed session vote be disclosed. Yet, the council’s “votes” were direction to Pinheiro to negotiate with Freels and Haglund – lead-up steps to the final public vote that will incorporate residents’ input – Pinheiro said.
“We didn’t make any final decisions – it’s just as simple as that,” he said.
By today, Pinheiro had only briefly met with Freels and Haglund about raises, but had not yet sat down to negotiate. While Haglund’s salary appears at the top of his positions’ pay grade, Human Resources Director LeeAnn McPhillips wrote in an e-mail today that “this position does not have a range associated with it” and that “the amount the City Administrator is paid will require council action … which is consistent with how changes to compensation for the City Administrator have occurred in the past.”
Former City Administrator Jay Baksa agreed and said the process for giving raises to Freels and Haglund mirrored that of the city’s five unions. There must be time for negotiations before a final vote to make sure the city’s getting the best deal, Baksa said.
“It doesn’t make any sense to have it all occur in open session because you still have to sit down and talk with (Haglund and Freels),” Baksa said. “(Haglund) may say, ‘No thanks. A raise isn’t appropriate right now.’ … But any action the council ultimately takes must be done in public session.”
In an e-mail, City Attorney Linda Callon wrote, “the council cannot act on compensation in these closed sessions, and that proposed compensation will be discussed and set in open session.”
Pinheiro said he thought it was “premature” for Woodward to be talking about his doubts publicly before addressing fellow council members and also argued that Woodward should have voiced his doubts Aug. 3.
“If there’s an inkling that anyone’s uncomfortable during a closed session, we’ll take a vote – but that never happened,” Pinheiro said.
During every closed session, a city attorney distributes a sign-in sheet resembling a legal contract to remind attendees – including council members, city officials and special counsel – to keep their lips sealed lest they face a grand jury investigation. Councilman Craig Gartman has demanded punishment for the Aug. 3 leaks.
However, Callon said council members cannot face punishment for talking to the district attorney about a perceived illegality, expressing an opinion about the legality of a closed session discussion, or “disclosing information acquired by being present in a closed session that is not confidential information.”
In addition, Santa Clara County District Attorney Spokesperson Amy Cornell said it’s up to Gilroy to mete out punishment.
“It doesn’t sound like anything our office would get involved in,” Cornell said.
WHY YOU SHOULD CARE
The council, with a majority vote, may call closed sessions to discuss public safety emergencies, employee evaluations, property negotiations, legal counseling and union negotiations. However, salary talks for the city administrator and city clerk must be discussed in open session under the Gilroy Open Government Ordinance.
The council was expected to discuss this issue tonight.
