Understanding Duties of Key Players is Integral to Moving Agency Priorities and Agenda Forward
By Ruben Duran and Christopher Pisano, Best Best & Krieger LLP.
There is a big difference between crafting policy and the day-to-day running of an agency.
Often, the most effective agencies have a solid history and practice of clearly defining the functions of key players. Establishing well-understood and defined roles of these players can play a critical function in helping an agency set its priorities, move agendas and accomplish goals.
When both staff members and elected officials approach their respective roles and responsibilities with the knowledge and appreciation for what the other does — as well as an understanding of their own role and its limitations — it makes it easier for everyone to fulfill their duties and stay the agency’s set course.
Understanding of Roles Key to Mitigating Issues
Agencies have two key ingredients: the board and the staff – or the “what” and the “how.”
On an individual level, board members represent their constituency. Collectively, they debate and create policy, set the agency’s priorities, establish rules for the agency to operate by, select staff leaders and maintain fiscal responsibility. Staff, on the other hand, inform and educate the board, provide an environment in which board members can represent their constituency and carry out their duties, facilitate policy implementation, make board priorities a reality and maintain the agency’s daily functions by providing essential services to the public.
It works best when the right person in the right role takes the proper action, making it important that board and staff members keep their respective roles in line and understand how their roles differ.
For starters, board members should avoid micro-managing public staff — staff management, rather, is best left to the general manager. Many of the best-run agencies follow this simple formula: the general manager is the gatekeeper. This buffer between government staff and elected officials can be essential.
Having a written policy limiting board and staff interaction outside the public sphere can be helpful at various levels of government to not only avoid potential Brown Act violations, but also to ensure every board member is equipped with the same information.
Here’s an example: Two days before a public meeting, a board member asks staff to prepare a report on a consent item but doesn’t share this information with board colleagues. Rather, the board member pulls the item from the consent agenda and seeks debate, prepared with information other members lack.
The free-flow of information is essential to the decision-making process. All board members should be provided the same information and shouldn’t have things sprung upon them without the knowledge and background needed to fully debate an item or issue.
Staff, too, must exercise caution to ensure they don’t overstep their duties in an attempt to set policy, which is is the domain of the elected body. Agency staff are experts when it comes to actually running the agency’s daily operations, as well as many other aspects of their critical jobs, and are often tasked with making difficult decisions in line with the policy directives of the body.
It’s essential that board members refrain from undermining or publicly criticizing staff for their work in order to strengthen and promote good relations between the staff and board.
Putting Politics Aside to Avoid Legal Problems
It is important to note that city staff isn’t always on the popular side of politics. And sometimes, the politically unpopular thing might be the right thing to do — from both a policy and practical perspective. This can put staff at odds with elected officials and can put the agency at risk.
Here’s another example: A small, vocal group of neighbors wants a stop sign installed but staff recommends against it because it doesn’t conform to engineering standards. However, the board moves ahead and the stop sign is installed. After an accident occurs, the city is sued. Ultimately, the city loses because it lost some of its design immunity granted under Govt. Code Section 830.6 that would normally be available because the board moved against staff recommendation and set engineering standards.
While the city was found to be a fault, generally, all agency members and staff are protected under California law for decisions made at the planning and policy level. Discretionary immunity (Gov. Code Section 820.2) protects public entities and their employees from personal liability for an injury that results from an act or omission in their discretion.
Board members have added layers of protection as they are granted immunity from speech made on the dais and if implementing policy of the board as a whole. Liability issues can arise if a board member “goes rogue” and does things outside of what the board is deciding as a whole.
Speaking of going rogue, it should also be noted that board discretion is vital to an agency’s success. Board members who decide to release sensitive information or otherwise go “off script” may find their actions result in a lawsuit.
From a litigation standpoint, there is a dichotomy between an agency’s need for transparency and need for confidentiality — particularly from what is being discussed in a closed session. Litigation can bring up many practical difficulties for agencies and it is critical that closed session discussions are not disclosed. A violation could lead to a grand jury inquiry for improper disclosure.
Organizational transparency, integrity and trust will ultimately help everyone carry out their roles effectively and appropriately. To achieve goals, mitigate against litigation and financial risks and maintain an effective organization, here are some things for agency leaders to consider:
- Well-functioning organizations have clearly defined and well-understood roles
- Staff oversight and performance evaluation is best left to the general manager
- An open budget planning process can ensure the entire body gets onboard
- Legal counsel can guide organizations through the legal framework to mitigate risks
- Board reliance on and confidence in staff can help accomplish organizational goals
For more on defining the roles and responsibilities of public staff and elected officials, check out Best Best & Krieger’s Who Does What webinar.
Ruben Duran is a partner in the Los Angeles office of Best Best & Krieger LLP. He represents cities, school districts, public health plans and special districts throughout California on open government, transparency and complex conflicts of interest matters as well as elections law, land use, planning and cannabis issues. He can be reached at firstname.lastname@example.org.
Christopher Pisano, a Los Angeles-based partner with Best Best & Krieger LLP, represents cities, counties, special districts, water, housing and transportation authorities as well as private corporations in land use, water rights, unfair competition and civil rights litigation matters before state and federal courts. He can be reached at email@example.com.