Underlings Adopt Evaluation Critical Of Superagency\’s Administrator – Although He Says They Have No Legal Right To Do It

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The Government Accountability Commission, a panel made up of representatives of the nine divisions of a superagency created in 2011, voted Monday to approve an evaluation that includes criticism of the performance of the executive administrator at the top of their agency — David Guay, a $118,000-a-year appointee of Gov. Dannel P. Malloy — even though Guay says they have no right to do so.

The action escalates a public dispute over the meaning of the 2011 legislation that created the new superagency, called the Office of Governmental Accountability,  by merging nine watchdog agencies into one superagency. The watchdogs that were absorbed included the Freedom of Information Commission, State Elections Enforcement Commission, and the Citizen\’s Ethics Advisory Board (which oversees the Office of State Ethics).

It is a complicated bureaucratic war that highlights the pitfalls of reorganizing a large number of state agencies in a short time — which is what Malloy and the Democrat-controlled legislature did in 2011 over Republican legislators\’ objections. The controversy over the underlings\’ attempt to evaluate the agency\’s boss was the subject of Sunday\’s Government Watch column in The Courant.

The Government Accountability Commission  — which, again, is a panel made up of representatives of the nine formerly independent watchdog agencies that were merged into the Office of Governmental Accountability superagency — says that the 2011 law gives them the right to set performance goals and deadlines for Guay, and then to evaluate how well he met those expectations. The law doesn\’t explicitly give them those powers — but it does say, in black and white, that their commission has the power to meet for the purpose of terminating the executive administrator.

The watchdogs\’ panel\’s argument — as stated by its chairwoman, state ethics director Carol Carson — is that it doesn\’t make any sense to give them the power to fire a person if they can\’t first evaluate his performance according to a set of standards.

Guay says that the law\’s meaning is limited to its words — that the watchdogs\’ commission can vote to fire him if necessary, period. He adds that the watchdogs are wrong to infer that just because they can fire him, they also have the power to set deadlines for him to accomplish certain tasks, and then to evaluate him as to how well he performed. And yet that\’s what they have now done.

Carson and others on the watchdogs\’ commission say that Guay is wrong, however. They note that a Democratic legislative committee co-chairwoman, Sen. Toni Harp, D-New Haven, said during a debate on the 2011 legislation that the watchdogs\’ committee would have the power to evaluate and terminate the new superagency\’s administrator. That demonstrates the \”legislative intent\” that the watchdogs should be able to evaluate the administrator, Carson says.

When Democrats wrote the legislation in 2011, they were going out of their way to blunt criticisms that the independent regulatory watchdogs would be rendered toothless by being made into divisions of a superagency that was to be headed by an appointee of the governor.

And so they wrote concessions into the bill that now have made it open to differing interpretations: The law says the executive administrator is the boss at the new superagency, but the watchdogs are not his subordinates; the watchdogs are still independent in their regulation and enforcement functions, even though they depend on the superagency for \”back office\” functions and financial cost-saving efficiencies. And, in the concession that has set up the current problems, the Democratic drafters of the legislation said that the watchdog divisions would have a major voice — and bestowed on them the power to meet as a commission to fire the administrator if it became necessary. The problem is that the drafters didn\’t fill in the blanks as to how the firing of the administrator would come about. Now the commission of watchdogs is fillin gin those blanks — and the dispute continued to fester after Monday\’s vote to approve Guay\’s evaluation.

What happens now that the watchdogs\’ commission has issued its evaluation of Guay?

Commission members conceded Monday at their meeting in Hartford that Guay may well continue to say the evaluation has no legal force, but they still wanted to go on record with their points about needing better service and assistance from the administrator with their \”back office\” operation; they said their comments still stand, whether they are considered unofficial or official.

For a moment Monday, members of the watchdogs\’ panel talked about seeking a formal opinion from the state attorney general — to determine, once and for all, if they have the powers of setting goals for Guay and evaluating him. But at least one member said if the attorney general disagreed with them, they would have to abide by that ruling. After that, they decided instead to ask the General Assembly to clarify the language in the law when it convenes in January for the 2013 legislative session.

Guay was appointed to his position more than a year ago by Malloy, after the watchdogs\’ panel included Guay\’s name on a list of recommended candidates; that\’s the second power the law explicitly gives to the watchdogs\’ commission. It has two powers: to recommend candidates for the governor to appoint as executive administrator, and to meet to terminate the administrator.

Guay declined invitations to attend two watchdogs\’ commission\’s meetings at which his evaluation was to be discussed — on Oct. 25, and again on Monday. The watchdogs expressed disappointment, saying a two-way communication over their constructive criticisms would benefit both sides. \”It is of grave concern to the [watchdogs\' commission] that [Guay] is unwilling to meet to discuss the status of the consolidation or to collaborate on ways to make it a success as he enters his second year of employment at the Office of Governmental Accountability (OGA),\” the evaluation approved Monday said.

\”While the [watchdogs\' commission] has the authority to terminate [Guay], Commissioners would prefer to work with him to identify areas that need improvement and resolve them,\” the evaluation said.

The evaluation had some good things to say about Guay\’s performance, but among its criticisms were: \”Regular communications by [Guay] with the division heads have not been established. It is unusual for him to visit any of the division offices or to meet with the division heads one-on-one. This failure on the part of [Guay] to engage in two-way communication regularly is a primary concern. … It would be beneficial if communication from [Guay] were more pro-active rather than reactive.\”

Representatives of seven of the nine watchdog agencies in the superagency were at Monday\’s commission meeting, and they voted 6-1 to approve the evaluation and seek clarification from the General Assembly about the law\’s wording. Alone in opposing it was Scott Murphy, executive director for the Judicial Review council; he argued unsuccessfully that they should postpone action on the evaluation for the month or two it would take to obtain an attorney general\’s opinion on whether they had the right to evaluate Guay.

Murphy said even though the rest of the panel chose instead to seek clarification from the legislature, it would still help to obtain an attorney general\’s opinion; for example, he said, if the attorney general were to interpret the law in a way that legislators didn\’t intend, it might prompt lawmakers to clarify the language more readily than if Carson writes a letter requesting that they do so — which now is the plan.

One of the chief critics of the 2011 legislation, state Sen. Michael McLachlan, R-Danbury, said Monday evening that he will try to clarify the language in the 2013 legislative session. The current dispute proves \”exactly why the language of the original bill was so weak,\” he said. Even without explicit wording that says the watchdogs\’ panel can set standards and evaluate Guay, it\’s obvious that it can, because \”in government you can\’t fire anybody unless you have a review of their performance. … You can\’t fire without justification.\” To provide justification, one needs to show that an employee failed to meet some standards of performance, McLachlan said.

\”The language is silent on review [of Guay\'s performance] and yet it is clear on the ability to fire,\” McLachlan said, and adding some clarification where the law is now \”silent\” would settle the dispute.

 

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