"Conflicts of Interests" were reviewed*

In California, the activities of public officials are guided by the Common Law Doctrine of Incompatible Offices. This doctrine addresses the potentially overlapping duties and conflicts when two public offices are held by a single official. The offices are considered incompatible if there 1) is a significant clash of duties or loyalties between the offices, 2) if public policy considerations make it improper for one person to hold both offices and 3) if either officer exercises a supervisory, auditory, appointive, or removal power over the other. The Common Law Doctrine of Incompatible Offices only applies to someone who holds two public offices simultaneously. It does not preclude an official from simultaneously holding an office and an "employment", based on case law and Attorney General opinions. The Attorney General's office has concluded that City Administrators and Managers are "officers" in several legal opinions (51 Ops.Cal. Atty.Gen. 183 (1968), 80 Ops.Cal.Atty.Gen. 74, 75-76 (1997), 82 Ops.Cal.Atty.Gen. 201). In an opinion on whether a person could serve simultaneously as the City Administrator and Fire Chief of the City of Oroville, the Attorney General's office stated "Prospective as well as present clashes of duties and loyalties give rise to the prohibition. Only one significant clash is required to make offices incompatible." Mr. Muir currently serves as a public official (Auditor) and an employee (Director of Behavioral Health Services). The Board of Supervisors specifically chose not to name Mr. Muir as County Administrative Officer (CAO) or interim CAO. According to a member of the Board of Supervisors, the CAO position is now shared between the Auditor/Controller, County Counsel, and Board of Supervisors, with several Department Heads "pitching in". Mr. Muir performs most of the CAO's duties although he does not technically hold that title. In a brief survey, the Grand Jury found several instances where Mr. Muir was cited as the CAO by other Department heads. Even though the CAO position has not been filled, it is still cited by County staff, such as the legal advertisement for Community Development Block Grants. Legal arguments can be made both "for" and "against" the conclusions that 1) Mr. Muir should be considered to be the CAO even though he does not hold that specific title and 2) that the CAO is a public official and therefore subject to the Common Law Doctrine of Incompatible Offices. The Grand Jury believes that the most appropriate method to settle this discussion is to 1) obtain an opinion from the Attorney General, and 2) comply with the opinion. It is possible that the County may chose not to comply with the opinion, since Attorney General opinions are not binding. In that case, the District Attorney should pursue the issue in court.

It is poor public policy to have the Auditor and County Administrative Officer positions combined. The result is a concentration of power with no checks and balances. It compromises the jurisdictional independence of various positions. The Grand Jury believes that the rationale expressed in the Common Law Doctrine of Incompatible Offices should be considered. It is easy to conceive of situations where incompatible offices may arise. The following are examples of situations where there is a significant clash of duties or loyalties between the offices, where public policy considerations make it improper for one person to hold both offices and where either officer may exercise a supervisory, auditory, appointive, or removal power over the other. Example 1: In 2002-2003, the Grand Jury received a complaint concerning an application for a housing rehabilitation grant. Mr. Muir served on the Loan committee that selected recipients of the grant. The applicant was denied a grant and the appeal was submitted to the acting CAO - also Mr. Muir. The Grand Jury report stated "This situation underscores the need to hire a full time County Administration Officer". The County has had to resolve this conflict by appointing a different Department head to review appeals. Example 2: In 2003-2004 The Grand Jury received a complaint from an applicant for the position of Personnel Manager. Mr. Muir served on the committee interviewing job applicants. The applicant was not selected for the position. An appeal of the decision was submitted to the County Administrative Officer - also Mr. Muir. Mr. Muir is currently serving as the Personnel Manager, following the resignation of the selected candidate. County employees and job applicants should have someone to go to, to hear, explore and perhaps find a remedy if they feel the Personnel Department has erred. By being both the Personnel Manager and CAO, Mr. Muir has eliminated these options for county staff and applicants. The current County Council is retiring. He is very involved in personnel matters. His replacement may not have the inclination or the time as a new employee to assist the Department heads and the Personnel Department employees to the current extent. The Personnel Department should have a dedicated head, one who only deals with personnel matters. Example 3: Mr. Muir currently serves as the Director of Behavioral Health, which is a county Department head. Department heads are responsible for recommending budgets and staffing levels and serving as an advocate for their Department. The Grand Jury found no evidence that this exists, but there is the possibility that a combined Department Head/Auditor/Administrative Officer may favor their own department. In contrast, there is the likelihood that a part-time Department head may not be able to devote sufficient time to Behavioral Health Services. The 2001-2002 Grand Jury stated "We recognize that the Mental Health Director is also the County Auditor and the interim CAO, in addition to other duties that he has been assigned. Overall, he can only devote about 30% of his time overseeing the TCBHS Department operations". Example #4: Numerous questions have been raised regarding the finances of Trinity Hospital, particularly which hospital services operate at a financial deficit. The Auditor has presented various sets of figures, some of which have been questioned by hospital staff. The hospital's Chief Financial Officer developed an alternate set of figures, in part because the hospital and county use different auditing procedures. The role of a Chief Administrative Officer would have been to resolve the difference of opinion between these two financial officials. A full-time CAO would have been more likely to have the time to dedicate to resolving the hospital funding issues. Conclusion: The Grand Jury recognizes that there is some efficiency in combining multiple part- time positions into one. However, the positions selected for combination should not have a significant clash of loyalties or exercise a supervisory power over the other. The Auditor/Controller has the duty to advise the Department heads of the availability of funds and maintain an ongoing tally to assure that the various arms of County government stay within budgetary limitations. The CAO may be expected and requested by the Board of Supervisors to explore visionary ideas to improve the functions of County government that may not fit into the budgetary guidelines. It seems that the County would benefit from the checks and balances of a separate CAO and County Auditor/Controller. One of the CAO duties, according to the job description, is "oversees and maintains the economic efficiency of County government, coordinating studies, analyzing resources, and developing recommendations to assist the County in better meeting the changing needs and requirements of County government". The Grand Jury wonders if serious issues facing the County, such as operation of Trinity Hospital, would have been better served if there were a full-time person dedicated to this task.

The Grand Jury polled 8 rural counties in northern California (Del Norte, Mendocino, Siskyou, Tehama, Modoc, Lake and Colusa). Colusa County has eliminated their CAO and delegated those duties to the County Clerk. Alpine County, which has a population of less than 2000 people, has an assistant to the Board of Supervisors. The remaining 6 counties have a CAO which is not combined with an elected position. The Grand Jury contacted the California State Association of Counties (CSAC). CSAC considers Brian Muir to be the interim Chief Administrative Officer.

The County Administrative Officer position is described as a "single-position management classification". According to the CAO job description, the CAO supervises the appointed Department heads, Personnel Manager, Personnel Analyst 1& II, Director of Information Technology, Grants Coordinator, Clerk to the Board of Supervisors, Deputy Risk Manager and other administrative staff. The CAO serves as the Purchasing Agent and Employee Relations Officer, directly oversees Information and Technology Services, Human Resources, Grants Administration, and Risk Management. The CAO duties include development and administration of the budget, approving the filling of vacant positions, direction of central services (including building management, use of office equipment and maintenance of County equipment), reviews and coordinates applications for State and Federal grants, oversees the performance of appointed Department heads, present the County's Annual report to the Board of Supervisors, etc. Mr. Muir performs the bulk of these duties in addition to serving as the Auditor and Director of Behavioral Health Services. It would seem difficult to perform all these duties in an effective and efficient manner.

Mr. Muir was elected as Auditor/Controller, with the assumption that was a full-time position. In actuality, 65.5% of his salary is from Auditor/Controller, 10.3% from the Director of Behavioral Health Service, and 24.2% from the CAO position.