BALLSTON SPA, N.Y. — An independent investigation into the county’s pandemic-induced compensation plan for essential employees shows questionable actions by several county officials but none that crossed the line into illegality.
The confidential report by the Jones Hacker Murphy law firm was undertaken at the request of the County Board of Supervisors after questions arose in March surrounding a time-and-a-half pay plan for county employees. The pay plan also included extra pay for department heads and deputy department heads.
The report was presented to the Saratoga County Board of Supervisors in early August. The waiver of attorney-client privilege for the report was approved by the board Aug. 12.
The 85-page report concludes that despite a five-member COVID-19 oversight group creating, announcing, and putting into action a plan to pay time-and-a-half to all county employees and officers showing up for work as essential workers, it was the Board of Supervisors only that had the final authority to fix and modify compensation.
In March, the issue of the extra pay created a furor within the Board of Supervisors, the employees’ unions, and the public when the amount of additional funds being expended came to light and when that extra pay suddenly ceased. The issue resulted in a call from some county supervisors that an internal investigation and an external, independent investigation be conducted.
According to the law firm’s report, the issue of extra compensation and who would receive it began on March 15 with an announcement by County Administrator Spencer Hellwig during a meeting with county department heads. Human Resources Director Margaret McNamara then passed the information about the pay plan along to representatives of three unions with county contracts.
“Neither the County Administrator nor the Human Resources Director had legal authority to announce additional compensation on March 15,” the report states.
How the idea for the extra pay originated is still undetermined. The law firm report notes that in interviews with Hellwig, McNamara, and Deputy County Administrator Chad Cooke the idea for the pay plan emerged either shortly before March 15 or in conversations among the three just prior to a full department head meeting on that date.
However, an internal investigative report on the issue completed by a special subcommittee of the Board of Supervisors’ Law and Finance Committee notes that Hellwig took the idea to the county department heads on March 15, the same day he discussed it with Board Chairman Preston Allen.
“On Sunday, March 15 Chairman Allen and Mr. Hellwig agree to implement the 1.5 rate compensation plan under the authority of the forthcoming Emergency Declaration (by Gov. Andrew Cuomo),” the internal report states.
As to who would receive the pay, the law firm’s investigation noted a record showing Hellwig and McNamara told the Law and Finance Committee and the full Board of Supervisors on March 17, “everybody, any county employee reporting to work in person, would receive the time-and-a-half pay under the plan”.
All parties agree that it was understood by everyone the plan would be temporary. The proposed date for ending the pay plan and the actual date when it ceased caused a second furor. That the extra pay stopped for some employees while continuing for others only added fuel to the fire.
Things began to unravel for the pay plan quickly when the full Board of Supervisors learned just how much more the extra compensation was costing the county per week.
The law firm report notes that Cooke’s calculations showed that at regular pay a workforce of 50 percent (essential workers only) would draw $650,000 a week in salary. With the extra pay, that figure would increase the expenditure by $350,000 per week for a total of $975,000.
The Jones Hacker Murphy report notes that approximately 340 full-time-equivalent county employees received COVID-related time-and-a-half pay from March 16 to March 19. A smaller group of 35 Command Center employees received it to April 2. A number of department heads, deputy department heads and elected officials received the pay until April 2 but much, if not all, that money was eventually recaptured in subsequent payroll deductions.
Complicating matters for the investigators was the lack of any written notes from two decisive closed-door meetings of the five-member COVID-19 group and a number of inadvertent errors in distributed forms or emails. The COVID-19 group included Allen, Hellwig, McNamara, Town of Greenfield Supervisor Dan Pemrick, and Town of Saratoga Supervisor Tom Wood.
“All of the members of the COVID-19 group tell us that they had their second meeting together on March 25. Each of them told us that during that meeting, they decided to continue time-and-a-half pay for the 40 or so employees working in the command center only, which they say was a continuation of the policy they settled upon during their March 19 meeting. Here again, in the absence of any written notes or minutes from the March 19 or March 25 meetings there is no contemporaneous documentation of these decisions,” the report said.
The law firm’s report noted that closing meetings such as those of the COVID-19 group violated the state’s open meeting law. That fact was highlighted when Ryan Mahan, president of the Saratoga County Sheriff Deputies Police Benevolent Association, asked to attend the March 25 meeting and was denied.
A conflict in personal recollections arose when law firm investigators separately asked Mahan and McNamara about a subsequent meeting that both attended the following day.
Mahan said he was told by McNamara the time-and-a-half pay would continue until April 2. In her interview, however, McNamara was adamant, “that if she did speak with them (union representatives) that day, there is no way she would have told them that the time-and-a-half pay would continue to April 2,” the report said.
In describing a thread of text messages among representatives of the three unions, the law firm reports there are discrepancies in the conversations about when the representatives say they learned from McNamara that the extra compensation would end March 19. Part of the problem stems from the way McNamara’s posed her email question and some stems from the fact that two of three unions refused to speak with the investigators.
“But, on the whole,” the report states, “the question of whether HR (Human Resources) notified the unions of the change in policy for time-and-a-half on March 19, or some time later, is at least very questionable.”
In concluding the report, the law firm said it found no illegality with Hellwig and McNamara’s participation in the COVID-19 group, nor the duo’s temporary receipt of time-and-a-half pay. The report noted that the COVID-19 group was a public body and should have held open public meetings rather than closed-door meetings and kept minutes. The lack of any notes or minutes from the meetings has hindered the investigation, the report said.
The report noted also that the county has put itself at risk with the state Department of Labor for the manner in which it deducted the extra pay from employees’ paychecks that were either paid in error or paid after the compensation plan had ceased.