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.
Finally, a clear and simple explanation of the division of powers between the executive, county council, and the district attorney’s position. Should have had this soon after the election of the new executive and county council. Let’s see if it changes the
ReplyDeletedynamics for the better.
Very interesting and informative post, BO.
ReplyDeleteIt appears that TZ should take time out from promoting herself to read and comprehend the county charter.
ReplyDeleteBaratta moved to disqualify Melissa Rudas and the Solicitor’s Office based upon an allegation that the former County Executive was the defendant and a member of the Solicitor's staff and that created a conflict for Rudas. Dally granted the motion and forced the County to hire outside Counsel.
ReplyDeleteI'd disagree that is a technical conflict of interest bc McClure was not being sued individually. The office is being sued, not the person. I believe that is a mistake.
DeleteIt’s the difference between “budget” and “actual.” It does matter how much money is actually in his budget. All of the positions in the office are fully funded, at the salary that’s in the budget when it’s passed in December. It’s not just required to be balanced in December, it’s required to be balanced all year. That’s why County Council does at least 3 or 4 Budget Amendments a year. If he’s seeking to pay more money than was budgeted for, that would require a budget amendment.
ReplyDeleteHe's not.
DeleteThis is an hilarious and vicious beating. In the battle of wits with Baratta, Zrinski is completely unarmed. Say uncle, Tara. The Peter Principle is on the phone.
ReplyDeleteIt appears to me that outside counsel was using the time-honored tactic of abusing his opponent. If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, abuse your opponent. But this tactic can backfire, as Baratta deftly demonstrates.
DeleteWOW - Tara Z is amazing managing a “$500,000,000 million” budget! And while the County may have hired outside counsel (thanks for spending tax dollars on that), I wonder if any particular McPerson in the Solicitor’s office might be the liaison for the County Exec.
ReplyDeleteI completely support the use of outside counsel for complex litigation or union matters because that requires a degree of specialization. But a dispute over the interpretation of the Home Rule Charter, Admin Code and Career Service Regs should be handled by the county's own solicitor's office. That should be the county solicitor's specialty.
DeleteThe DA can hire, fire, supervise and promote. However, County Council sets the salaries, pay scales and the personnel policies and regulations for all employees whether they are exempt or they are non-exempt. All are in the Career Service. The exempt in Exempt Employee simply means the hiring authority has discretion to hire that employee without consideration of the Career Service policies and procedures with respect to hiring and firing
ReplyDelete. For the money, even the DA has to go to the Salary Board.
This is correct, and the "salary board" is Council.
DeleteBaratta is correct, of course. A more interesting question is who is advising Zrinski to make these legal mistakes? She thinks civics is a type of Honda automobile. Who's the brilliant legal mind behind her goofiness?
ReplyDeleteI agree. TZ is unqualified for this position, as she was for the Controller. She is just a job jumper hoping that the underlings can keep her in her position. I always figured LM was the puppet master, but with his upcoming (unqualified) run for another office, it may be somone else. Equally abysmal....
DeleteI am not a fan of Baratta’s and believe he made promises he couldn’t keep during the campaign, one being bringing in a full complement of attorneys. While the executives may be part of the problem, Baratta must also assume his role in this mess. The DA’s office rarely goes to trial, preferring to settle cases. Young attorneys looking for trial experience will only get minimal exposure to handling a trial in NC. Pleading out cases may be cost-effective, but is it best practice (and good for NC)? Baratta also promised to improve morale, but when you demote people and bring in staff that should be enjoying a retirement, rather than running interference because the boss has an abrasive personality, morale is shot.
ReplyDeleteThis has nothing to do with Baratta's campaign or the widespread practice of pleading out cases. That is an argument for another day. This is about county governance and the powers oof elected officials in county government. It is one of the most instructive documents on this topic I've ever read.
DeleteThis needs to be resolved by the Commonwealth Court. And, when it is, Tara will be victorious !
ReplyDeleteNo it does not need to be resolved in Commonwealth Court, where the county has a terrible track record on these issues. Time to recognize that the unitary executive theory is bad for any democratic form of government.
DeleteIt’s time to go back to the Commissioner system.
ReplyDeleteBaratta is a bully. He is trying to bully Tara. Baratta is trying to bully Tara because she is a woman. Baratta hates women. Ask anyone who’s ever worked with him. He’s as bad as Kraft.
ReplyDeleteUm, Baratta filed this lawsuit when Lamont McClure was Exec. Though I have nor personally checked, I believe he's a guy. Also, I happen to know several women who have worked with Baratta and have never heard any of them claim he is a misogynist Finally, I believe your personal attacks are an admission that you really have no justification for the Executive's interference with an independently elected official.
DeleteNot a Barratta fan but he’s on the right side of this if you ask me.
ReplyDeleteTara should fire Rudas and McClure. These two are poor excuses for solicitors. Doesn't Tara have advisors to give her guidance on these issues? Rudas owes her allegiance to McClure and has to defend decisions that were made during McClure's administration. After all, she was the top legal beagle under McClure.
ReplyDeleteBoth McClure and Rudas are excellent attorneys. I do disagree with their take on the Exec's power.
DeleteZrinski can't- its payback for getting her elected.
DeleteBaratta has definitely lost a step. His mental faculties don’t seem to be as sharp as they used to be. He often seems tired and confused.
ReplyDeleteFor someone who has lost a step, it's pretty clear he is going to get peremptory judgment, something highly unusual. Also, instead of attacking him personally, try addressing the substance of what he writes. Since he's tired and confused, that should be easy for you.
DeleteWhere are the County’s papers ? What’s Tara’s argument ?
ReplyDeleteBaratta summarized the county's argument, which basically is nonsense and arguments previously made and rejected.
DeleteAfter he left council Heckman said he wished them well. He did say if they continue to cede their powers to the Executive, depending on Party it would be a disservice to the citizens of the county. He looked rough, apparently his health is failing.
ReplyDeleteOn a side note away from all the hire step drama. Jay Jenkins is a huge gain to have back in the DAs office. I applaud DA Baratta for recruiting him back I have worked with him over the years and a very good Prosecutor and well respected among his colleagues on both sides of the case presentation
ReplyDeleteIf anyone bothers to look at the case number on the brief, you will see that Executive Zrinski inherited this lawsuit along with the furniture on the Executive's office. It is being handled by an outside law firm. Like executives from the President on down, they are often sued in their official capacity. The attribution of this inherited lawsuit to Executive Zrinski demonstrates how desperate some anonymous posters are to attack Zrinski for anything. By that standard she is apparently doing an excellent job.
ReplyDelete-- Joe Welsh
East Allen Township
Joe, I pointed this out earlier in the comments when someone asserted that Baratta filed this matter bc he hates women. It was filed during McClure's tenure and nearly every instance in which HR interfered with Baratta's hires was during that time. But Tara has continued this matter. She actually filed an argument that is essentially a rehash of what was previously rejected. She has asserted that NorCo is a strong exec form of government. She is wrong. She has immense power, but County Council has even more immense power. Moreover, the DA is invested by the HRC, Admin Code and Career Service Regs (to the extent those apply) with doing exactly what he argues he has a right to do. You are a constitutional expert. Try reading the HRC, the county constitution, and wou will see that Baratta is right and I am sure you would agree that giving the Exec too much power is dangerous.
DeleteDally will be reversed in Commonwealth Ct., and the DA and the Courts will lose substantial authority that they have gained informally through the years. Of course, this is all going to end with a return to the Commissioner System.
ReplyDeleteThis is the second comment predicting a reversal. It assumes that Dally will rule against the Exec and grant peremptory judgment. This is a tacit acknowledgement that the Exec's case is weak, unless you also believe Dally is biased. Yet no motion has been filed asserting his bias. As for an appeal to the court of second guess, the county has a particularly poor track record with the Commw Ct on employment matters, as demonstrated in the Mancini case.
DeleteDally will not rule against Barrata, the defined job descriptions are clear, HR responsibilities have been
Deleteoutlined. The executive either will learn the HR rules or lose what little respect she has left.County Council must learn where they can walk and where they cannot.
It’s time for the executive and council to act like paid professional elected representatives for the county, instead of venturing outside County
guidelines.
Dally was asked to recuse himself by Rudis. He declined to do so.
ReplyDeleteObviously, this comment is from someone in the admin familiar with the complete history of this case, yet chooses to pretend differently by deliberately misspelling the word Rudas.
DeleteI have reviewed that motion and Judge Dally's opinion on the topic. He was asked to recuse himself bc he engaged in correspondence with McClure when McClure interfered with the judges' desire to promote or hire a judicial employee. But as Judge Dally notes in his denial , his correspondence relied on an interpretation of the Admin Code, while the DA''s case rests upon the express language of the Home Rule Charter. Dally added he had no personal bias.
Also, the reason for disqualifying the Solicitor's office was that McClure was called as a witness and this created divided loyalty within the Solicitor's office regarding whether to represent McClure or the current Exec. This seems a bit of a stretch to me, but it's not reversible even if it is error.
I won’t make up my mind until Kelly Keegan posts.
ReplyDeleteyou forgot to mention how busy Barratta is approving sweetheart deals for Stan Margle!
ReplyDeleteAnd what exactly does the Margle plea have to do with this? Nothing. Perhaps that’s why it went unmentioned. You have attacked Baratta, attacked Dally, claimed you have a winner, etc., but you have made no substantive arguments. That’s a recipe for failure on all levels.
DeleteAlmost all the employees in the HR department are not qualified. I can think of 1 at the courthouse and 1 at Gracedale that are qualified.
Delete