01/13/13 — Attorney: Commissioners' decision to close meeting is 'questionable'

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Attorney: Commissioners' decision to close meeting is 'questionable'

By Steve Herring
Published in News on January 13, 2013 1:50 AM

Wayne County commissioners' closed-door discussion of the county's now discarded problem-riddled payroll system was "inappropriate," the attorney for the North Carolina Press Association said Friday.

Following the closed meeting, commissioners voted, without comment, to end the county's contract with Ceridian for payroll services.

"I don't think they should have been discussing the payroll system in closed session," attorney Amanda Martin said. "All of that should have been in open session. I think it was inappropriate."

There is nothing in the state's Open Meetings Law that would indicate that such a discussion on payroll would be allowed in closed session, she said.

It probably would have been permissible for commissioners to meet in closed session to receive advice from County Attorney Borden Parker on how to end the county's contract with Ceridian, Ms. Martin said.

The issue was not on Tuesday's agenda, but was added to unfinished business by board Chairman Steve Keen during the agenda briefing.

The closed session was held at the nearby Wayne County Development Alliance office and included a presentation by alliance officials.

Prior to the closed meeting, Keen said he wanted to reconvene in the commissioners' meeting room, "and discuss this issue after we have our closed session."

The other four Republican commissioners agreed it was appropriate to have the discussion following the closed session. Commissioner John Bell, a Democrat, did not comment.

"I would like to have a work session, closed session," Vice Chairman Ray Mayo said. "I have a lot of questions because if the system is not working is the reason we are going back to GEMS (old system), I'd like to know what those reasons are."

Mayo said the board had seen a "lot of things on the surface" about the payroll issue.

"But my question is, was this system even credible for us to buy to start with?" he said. "Plus I would like to know what we have to do maybe from a legal standpoint to get out of this agreement with Ceridian. So I have a lot of questions that I agree we need to have in closed session."

"We need some answers in closed session before I am ready to vote on it," Commissioner Bill Pate said.

Those kinds of general discussions do not meet the law's test for closed session, she said.

Mayo made the motion at 11:53 a.m. to enter closed session to consult with Parker, to discuss a location or expansion of industry in the county including agreement on a tentative list of economic development incentives that might be offered in negotiations and to consider the performance of an individual public officer or employee.

The state's Open Meeting Law allows closed meetings to preserve attorney-client privilege and to discuss contracts.

However, general policy matters may not be discussed in closed session. Also, according to the law, "nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant."

Bell made the motion to leave the closed session at 3:20 p.m. and the board's return to its meeting room at 3:30 p.m. lasted about two minutes -- just long enough for County Manager Lee Smith to read his recommendation and for a vote by commissioners who then adjourned without comment.

"I am recommending as county manager that effective Jan. 1, 2013, that the county payroll system be generated by the original payroll system better known as GEMS or MSGovern," Smith said. "It is further recommended that all payroll and employee data be entered manually into the GEM system prior to the January paydate by the appropriate departments."

Bell's motion to accept the recommendation and to terminate the county's contract with Ceridian was approved 6-0 and without discussion.

Prior to the closed session and the vote, Keen seemed to question Smith's decision to send out a recommendation regarding Ceridian, citing the pre-planned "closed session" to discuss concerns with the system -- the same closed session under scrutiny.

"We have certainly been working on this since August," Keen said. "I know Ray Mayo and I have, and of course with this board immediately we chose to get right into the nuts and bolts. As you know Mr. Parker was tasked to pull in audits and discuss those in closed session because of the nature of that. That was today."

Keen implied that Smith's announcement was premature considering the commission's plans to review the concerns with the system behind closed doors -- including an audit by Parker, which was ordered by the commission.

Smith said the work on the problems with the system did not begin Jan. 1 when the new board took its seats, but has been an ongoing inquiry, and has been increasing in intensity, involving many opinions from those working with the system.

"The auditors have been working, and as they have been working, I was talking with the auditor and all of our staff and of course our attorney and School of Government," Smith said.

Smith said the idea had been to involve as many people as possible to ensure that the county knew what it needed to do to make sure it was paying everyone as it should.

Many members of the executive team involved in crafting the recommendation are the "primaries" involved in the payroll issue, Smith added. He said he had wanted to have a recommendation in place.

Smith said he forwarded the recommendation to commissioners following a Monday afternoon meeting with Parker, the county auditors and his executive team, which includes Pam Holt, finance director; Joe Gurley, Office of Emergency Services director; Sue Guy, human resources director; Donna Phillips, library director; Barbara Arntsen, communications director; Steve Cross, IT director; and Joanna Helms, Development Alliance president.