Mesa County commissioners disagree over how a $26,000 pay raise for a top county official got approved in a process that may have violated Colorado open meetings laws.
Department of Human Services Executive Director Tracey Garchar's raise was approved in January without public input. Commissioners John Justman and Scott McInnis said the decision — made while Chairwoman Rose Pugliese was out of town — was both legal and came on the advice of the county attorney.
But some media law experts say the commissioners acted illegally when they approved Garchar's $151,000 salary without a properly noticed public meeting and discussion.
Interviews, emails and text messages obtained by The Daily Sentinel through the Colorado Open Records Act show Justman and McInnis decided more than a month after Garchar's performance review to give him a raise, just as Pugliese was on county business in Denver. The raise came less than four years after Pugliese attempted to fire Garchar after discovering the child-welfare budget was overspent and voicing her displeasure with his performance.
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Whether a violation occurred centers on if Garchar's raise can be considered day-to-day oversight and supervision of employees, an exception to the open-meetings rules that otherwise require public notice and a decision to be made in public. Mesa County Attorney Patrick Coleman said he believes the raise didn't need to be decided in public, just as his own raise and the raise for County Administrator Frank Whidden were approved by commissioners secretly in 2018. The difference on this occasion was the decision wasn't unanimous. Pugliese indicated she wouldn't support Garchar's raise, and Justman signed the paperwork while she was gone and without her knowledge, she told The Daily Sentinel.
While public officials often use executive sessions for employee performance reviews, salary increases have been routinely voted on publicly, an official action required to be performed in a properly noticed public meeting.
Commissioners met with Garchar on Dec. 10 in executive session. As required by open-meetings laws, no decision was made during that executive session, according to the commissioners and Garchar, who were the only ones present.
On the same date, commissioners also met privately with Coleman and Whidden. The three employees are the only county officials who report directly to the elected board and are the only ones who receive annual reviews directly from commissioners.
On Jan. 17, payroll paperwork for Garchar was signed by John Justman, citing the increase to a salary of $151,000. The reason given was "market adjustment."
No other information was completed on the form provided by the county through an open-records request. Coleman said he advised Justman to sign the form since Pugliese, who normally would sign paperwork as the chairwoman, was out of town.
Emails between county officials show Garchar's department already budgeted the increase for 2019 prior to the commissioners' approval.
Three days before Justman signed the form approving the raise, text messages between commissioners indicate there was confusion over whether a decision had been made to give Garchar the amount he requested.
"I thought we raised Tracey's pay. Am I wrong?" wrote Justman.
"We never made a decision. I am not for it but I won't stand in the way if Scott and you want to do it," replied Pugliese. She later said she didn't know the other commissioners made a decision, as she wasn't asked to sign the form.
On Jan. 17, Justman texted McInnis about the amount.
"We are at $151 for Tracey, correct?" Justman wrote.
"I think so," McInnis replied.
"It's ok to sign that paper work?" Justman wrote.
"I am ok with that," McInnis replied.
Justman said he signed the form with Coleman's advice, since Pugliese was unavailable, and knew the payroll deadline was imminent. He also said he thought the commissioners agreed to give the raise.
"I thought we were all on the same page," Justman said.
Regarding the timing of the decision and the paperwork signed by Justman when Pugliese was out of town, Garchar said he inquired about the raise because he wanted to have the pay applied to his first paycheck of the year.
"I reached out to John and I said, 'John, where are you guys at with this?'" he said.
Garchar said he and his staff knew payroll changes had to happen that week for the raise to be effective for his first paycheck of 2019, and a commissioner needed to sign off.
Garchar said he knew Pugliese wasn't in support of giving him more money but doesn't think she was in the dark about the decision to give him a raise.
"Not supporting it and not knowing are two completely different things," Garchar said, referencing the text message in which she said she wouldn't stand in the way of her fellow commissioners' decision.
As far as Garchar is concerned, his raise is a done deal, no matter how the decision was made.
"I have not had one follow-up conversation with them about it," he said. "I got paid, nobody's had an issue enough with it to bring it up and have another meeting about it."
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Pugliese said she didn't know Garchar received the raise until she asked Whidden to put it on the agenda for commissioners to consider at a public hearing and found the decision was already made.
"I knew that John and Scott wanted to give Tracey a raise and I wasn't going to stand in their way, but I wanted to make comments on the record," she said.
She also said she didn't understand why commissioners wouldn't put the raise on an agenda for a public meeting.
"I told (John) and Scott it needed to be in public hearing," Pugliese said, adding she expressed that desire days before the paperwork was signed by Justman. She said one of her reasons for expressing this was the backlash county commissioners received for the wage increases given to Whidden and other top county officials last year without a public hearing, which legal professionals say also violated the open-meetings laws.
"Tracey was given a raise by the majority of the board without my knowledge or input in public," she said. "I did not support the raise."
Pugliese said her opposition to the increase isn't an indication of Garchar's job performance, it's more about the data used to reach the $151,000 salary.
She said comparing wealthier, larger Front Range counties like Weld and Jefferson counties to Mesa County isn't comparing apples to apples. She said she sees Pueblo County as the most comparable to Mesa County in character, population and resources. The human services director in Pueblo County receives $109,000, according to the data Garchar provided, which is less than Garchar's previous $125,000 salary.
Pugliese said if the reason given for not needing a public hearing process was that the matter fell under supervising staff, she doesn't understand why she was left out.
"If it was day-to-day supervision, why wouldn't they have included me?" she said, noting she doesn't mind being in the minority but wanted to express her opinion in public.
Despite the texts indicating Pugliese was not in favor of the raise, Justman said he thought everyone was on the same page.
"I had two votes," he said.
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Friction over Garchar's employment with the county dates back to 2015, when Garchar asked to have his annual review performed in public, knowing Pugliese was displeased and he might get fired after being on probation.
Garchar brought supporters to his review, including employees and his family.
"If she was gonna do it, she was gonna do it in front of God and everybody," he said, remembering the incident.
Commissioners agreed to give Garchar time to resolve issues and develop a better working relationship with the board.
As is customary, Garchar's subsequent reviews have been done in executive session, including the most recent review leading to the pay raise. That raise follows 2018 pay bumps for Whidden and Coleman. Whidden received a 37 percent pay increase and is now making $180,000, while Coleman later received a 14 percent increase, bringing his salary to $159,996. These raises were also approved without a public hearing.
Meanwhile, other county employees who do not answer directly to county commissioners have not received across-the-board, cost-of-living pay increases in years, though the county absorbed a $1.2 million increase for employee health care premiums this year.
The recent closed-door compensation increases for Coleman and Whidden are part of what prompted Garchar to seek the same, he said.
"I did that because a year ago, right, they gave Mr. Coleman and Mr. Whidden sizeable raises and I didn't get anything," he said.
Garchar also referred to comparable salaries for similar jobs in nearby counties, adding that he's in charge of the county's largest department and his job has more responsibility than other DHS directors do in the region because of Mesa County's size and resources.
McInnis and Justman cited concerns about retaining employees in approving Garchar's raise. But Garchar said he didn't threaten to leave and wasn't going to leave if he didn't get what he requested.
"I wasn't going to quit this job if I didn't get it — $125,000 is a lot of money, I know that," he said.
Garchar's 21 percent raise means he now earns more than his counterparts in the same position in Jefferson and Larimer counties as well as the City and County of Denver, according to the data he presented to the commissioners.
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McInnis and Justman violated the open meetings law when they secretly decided to give Garchar a raise, according to attorney Ashley Kissinger of the Ballard Spahr law firm, which represents the Colorado Freedom of Information Coalition.
"The Board of County Commissioners violated the Open Meetings Law," she said. "While the board was authorized to discuss the possibility of giving such a raise in executive session, it violated the law twice — once when it failed to formally convene such an executive session, and again when it made the final decision to give the raise outside of a properly noticed public meeting."
Kissinger said Coleman's reasoning that the decision could be made as a "day-to-day" supervision exception to the open-meetings law is refuted in an appeals court decision from 2015 in the case of Arkansas Valley Publishing Co. vs. Lake County Board of County Commissioners.
"That case makes clear that 'setting rates of compensation' is not the 'day-to-day supervision of employees' under the statute," she said.
This also brings the previous raises decided by commissioners outside of public meetings into question.
A $26,000 raise is far from a day-to-day decision, according to Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.
"It is our position that the approval of a $26,000 raise for a county department head does not fall under the full-and-timely notice exception in the open meetings law for day-to-day supervision of county employees," he said. "That's a big decision that county taxpayers may be interested in knowing about. It's beyond being supervisory."
While commissioners are allowed to discuss the personnel matters behind closed doors and conduct the review, the decision to award the raise should have been made in a properly noticed public meeting, not in texts and private conversations, Roberts said.
"That's what Colorado's open meetings law is about — making sure government conducts public business in public with only a few exceptions," he said. "Decisions like this one are not supposed to be made in secret, keeping the public — and even one of the commissioners — in the dark."