Baratta Provides a Primer on NorCo Governance

As NorCo's top prosecutor, DA Steve Baratta is a busy guy. Though short-staffed, his office is responsible for prosecuting those accused of violations of both the Crimes Code and Vehicle Code. His office has empaneled a Grand Jury to deal with complex crime and cold cases. He handles civil forfeitures and can bring public nuisance actions against bars that routinely engage in criminal activity. His office can also file actions against public officials who are in office unlawfully. Though his plate is full, Baratta was unnecessarily forced to appear before County Council twice last week in an effort to hire a prosecutor at a reasonable salary. Though County Council readily agreed to give him what he wanted, his trips should have been unnecessary. Unfortunately, the Executive (both current and former) has a rather exalted and authoritarian view of its ability to run the county. This flies in the face of the Home Rule Charter and numerous other documents. He's found it necessary to seek judicial assistance in the form of a mandamus action to clip the Executive's wings just a bit and recently filed an excellent and highly informative brief (you can read it yourself below) that outlines the varying roles of District Attorney, County Council and Executive.   

Over the past two years, there have been 11 instances in which the Exec has prevented Baratta from onboarding new hires. In the lawsuit filed by Baratta, President Judge Craig Dally has already concluded that  there's a "reasonable expectation that the County Executive will continue to attempt to manage the District Attorney's Career Exempt Employees [nonunion] in clear violation of the Northampton County Home Rule Charter, unless a resolution is promulgated by this Court." He has dismissed objections filed to Baratta's lawsuit, but the county has basically filed the same objections all over again. 

Baratta's brief should be a primer for anyone interested in county governance. Although reading his brief is the best way of understanding it, here are some of his highlights.

First, NorCo's Home Rule Charter, approved by the voter referendum in 1978, creates a "Strong County Council Form of Governance."  This is completely contrary to assertions made by Exec Tara Zrinski at a Council meeting a few weeks ago that the Charter creates a strong executive form of government. 

To be sure, she is responsible for the administration of a $500,000,000 million budget. She manages a wide array of county departments, from Public Works to Human Services to Court Services to Corrections.  The Charter specifically names County Council as the "governing body" and provides that all residual powers are vested in Council. As Baratta explains, Council has the sole power to legislate and regulate all County business. The Charter also endows Council with perhaps the even more awesome power by granting complete control over county revenue and expenditures, as only County Council can tax our citizens and only County Council can allocate taxpayer funding for county business, It does so by adopting the annual County Budget. As former Council member Ron Heckman was wont to say, Council has the "power of the purse." The Charter even gives County Council veto power of her high-level cabinet picks.

Baratta warns that Zrinski's strained view of the Home Rule Charter has no basis, but "comes out of the playbook for authoritarianism, where governmental power rests with a single person." 

This view is dangerous and erodes our democratic form of government. We've seen President after President (not just Trump) rule by Executive Order. We've seen governors shut down entire state economies with emergency powers they were reluctant to give up.

Even County Council, the governing body, operates under a "rule of five," another Ron Heckman expression. No one person is or should be sovereign. We've known this since the days of Roman Republic, where two consuls were elected to rule together, and only for a year.  

Second, the District Attorney, like the Controller and even the courts, is an independently elected office with immense power under the Home Rule Charter to hire and fire members of the exempt service. The exempt service includes political hires like the cabinet picks made by the Exec or County Council Clerk, It also includes "permanent, part-time professional employees" like assistant DAs.  

Third, the District Attorney recognizes that his authority to hire and pay assistant DAs is limited by the budget appropriated to him and the pay scales set by County Council. "The District Attorney may only spend the monies that are appropriated to him by Council. Each exempt employee may only be paid pursuant to the pay scales approved by Council. As he explains elsewhere in his brief, his guardrails are "the budgetary dictates of County Council, the creation of the position control slots and the pay scales set by County Council for each position control slot." 

Recently, County Council shot down the Exec's request to hire a Fiscal Director at a higher point in the pay scale. If the DA can do this, why can't she? 

Baratta addresses that situation as well. He notes that "the process for hiring exempt employees for the District Attorney is different from the cabinet level exempt employees hired by the Executive. The Charter places no restriction on the District Attorney's hiring of exempt employees other than the Council's budgetary decisions, which include the pay scales. Whereas the Charter endowed with Council that duty to provide advice and consent to the Executive with regard to exempt appointments, including cabinet level appointments, by the Executive.  Therefore, the Executive must submit exempt employee candidates to Council for prior approval before they can be hired. Likely, the difference is Council's over-arching duty to legislate, budget and supervise the County Executive related to the delivery of governmental and social services to the citizens. Whereas the District Attorney's duties are fundamentally different from the duty to govern; instead, the District Attorney's duties are constitutionally based as a separate branch of government charged with prosecuting citizens who violate the Crimes Code." 

Fourth, Zrinski complains that Baratta seeks "unfettered authority to cut checks from a checkbook that belongs to the County." But Baratta only seeks to spend money out of what has been allocated to him by County Council in his annual budget and according to Council's pay scales.  He "recognizes that the County is currently suffering significant financial stress, apparently related to the inability of the Administration to meet its expenses from the $500,000,000 budget to the Executive by Council. However, poor fiscal management and/or overspending Council's budgetary funding has not been a problem created by the District Attorney. ... Should the Executive have continuing concerns about protecting 'her' money, the District Attorney assures the Executive that it is OK with him if she keeps all her checkbooks and money locked in her desk drawer."

Before leaving this story, I noted that the County used outside Council to litigate this matter.  The firm being used is the one that usually deals with union issues. But what is involved in this casee goes far beyond a simple employee matter. It involves important questions about the power of the Executive, County Council and independently elected offices. In a case like this, the Solicitor's office should be taking the lead.  

Baratta Brief by BernieOHare

Baratta Brief by BernieOHare