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12/04/2019

Judge Nelson Makes County's First Veto

 

On Monday, Dec. 2, Mississippi County Judge John Alan Nelson vetoed a measure that removes the ability of the county judge to hire and fire the finance director - the first veto ever cast by a Mississippi County judge.

Last Tuesday night, the Mississippi County Quorum Court approved the Personnel Committee's recommendation to amend Ordinance 2011-12, moving the finance department from underneath the county judge to the treasurer's office.

On Monday, Nelson told the NEA Town Courier that county attorney Jeremy Thomas did not draw up the amendment and he is unsure who did.

"It was written and discussed without any transparency, without the eyes and ears of the public, without the benefits of official minutes," Judge Nelson wrote in a veto letter to the Mississippi County Quorum Court.

Justice Rick Ash, who chairs the Personnel Committee, told the NEA Town Courier that he was assisted by the Arkansas Association of Counties in drafting the amendment.

"It was not designed to hurt the judge, because I would prefer to work with the judge, but we also have to look at protecting the county," Ash said.

Justice Michael White claims Judge Nelson threatened to fire finance director Kelli Jones if his son, John David Nelson, wasn't hired by the county.

Judge Nelson denies the allegation, saying the real reason for moving the finance office under the treasurer is because justices wanted to cut the pay of an employee by $5,500 after she was to stop handling payroll.

"It's all about financial management and what happens in financial management," Judge Nelson said. "They were offended that I would have anything to do with financial management, so their idea is I'll just move financial management out from the county judge."

Judge Nelson said the ordinance doesn't keep him as one of the supervisors as White claims.

White said the amendment only prevents the county judge from hiring or firing the finance director, that he remains a supervisor.

"This all hinges on whether Michael White runs county finance or whether the county judge does," Judge Nelson said.

Ash handed out the then proposed amendment at his Nov. 18 Personnel Committee meeting.

Ash, who chairs the committee, told board members that the meeting was called to move the finance department, which he contended would allow it to operate with more efficiency and transparency.

Ash asked if the committee would like to discuss the proposal and Justice Bubba Norvell nodded his head as if to say no, then motioned to send it to the full court. Justice Betty Hepler then seconded. Before the vote, Ash passed out the measure for review.

"What it does is, it actually puts the finance department where it should be - under the treasurer," Ash told the committee before the vote. "That's the line of authority for control of the department. She will still be supervised by the county judge, the county clerk. Nothing else in the ordinance changes...Basically, it breaks down that each one of the departments pays 33.33 percent of the expenses; that is the county judge, county clerk, and county treasurer. This just moves the lines of authority for hiring and firing of the finance department- finance director - to the county treasurer." 

The board then voted unanimously to send it to the Quorum Court, which also approved it unanimously. To override Judge Nelson's veto, it would take a 3/5 majority or seven justices at the next regular quorum court meeting.

When asked why there was so little discussion in the committee meeting, Ash said, "several people knew about the circumstances that brought this about."

White said Mississippi County was one of only six to have a finance department.

The other five are Pulaski, Sebastian, Benton, Washington and most recently Garland.

Judge Nelson contends the other 69 "do it the old way." 

He added, "we're not behind the times, we're ahead of the times."

Judge Nelson filed his three-page veto with the clerk's office on Monday.

"Putting into the hands of a single branch of government the power to transfer a part of the County Judge's office out of his purview and into another elected official's department during the fiscal year without any check to that power is not only bad public policy but contrary to the law," Judge Nelson wrote to the Quorum Court in the veto.

In the letter, he listed several statutory requirements regarding the position of county judge.

"This notice will serve as the execution of veto to the amendment of Mississippi County Quorum Court Ordinance number 2011-12:____, which is in direct conflict with at least seven provisions of Arkansas State Law, and if approved would be void," the letter reads.

Judge Nelson contends, per ACA 14-15-804 Arkansas statute limits the treasurer's hiring to only those in the capacity of deputy treasurers.  "The Finance Department could never be a part of the Treasurer's office because the individuals making up this department consists of a payroll clerk, finance director and so forth," he said. "These individuals are not Deputy Treasurers and thereby prohibited by statute."

The letter also says the following:

"Per ACA 14-14-805 Arkansas statute prohibits each county quorum court from exercising local legislative authority applying to employee policy practices and shall be only of a general nature and shall be uniform in application to all employees of the county.  The day to day administrative responsibility of each county office shall continue to rest within the discretion of the elected county officials." 

"Per ACA 14-14-1105 Arkansas statute states that Jurisdiction of the county court shall include county financial activities." 

"Per ACA 14-14-1102(1) ©(iii)(a) The county judge of each county may promulgate appropriate administrative rules and regulations, for the conduct of county financial affairs." 

"Per ACA 14-14-1102(5)(A) Hiring of County Employees, Except Those Persons Employed by Other Elected Officials of the County.  The county judge as chief executive officer of the county is responsible for the employment of the necessary personnel or for the purchase of labor or services performed by individuals or firms employed by the county or an agency thereof for salaries, wages, insurance, or other forms of compensation." 

"Per ACA 14-14-1102(5)(B)(ii)(a)  Jurisdiction for the hiring of employees of counties, administrative boards, or subordinate services districts may be delegated by ordinance to the board or service district, but where any ordinance delegating authority to hire county employees interferes with the jurisdiction of the county judge, as provided in this section, it shall be implied that the delegation shall be performed only with the approval of the county judge." 

Judge Nelson wrote that the Arkansas Constitution, under amendment 55, Section 3, established executive powers for the county judge to authorize disbursements of county funds. "The disbursements of county funds are certainly a part of financial management," he said. "The duties of county judge as written in Arkansas statutory law refer to financial matters of the county in many instances. Besides the six statutes cited above, below are eleven additional statutes that require the county judge to have readily available financial information, compiled in a manner useful for the purpose of carrying out those individual responsibilities. These additional statutes do not make up the whole of Arkansas law in regards to the financial duties of the county judge, many more exits in statutory and constitutional law."

He then listed items under ACA 14-14-1102, the exercise of powers by the county judge.

"The above statutes clearly state that no county funds will be distributed until the county judge, approves the payment and then places his signature on the payment by his/her hand," Judge Nelson wrote. "Furthermore, the county judge shall determine before the payment is made that, there are sufficient available and appropriated funds, makes certain it is in compliance, and also in compliance with state purchasing laws, and that the goods or services have been rendered and appropriated. Other statutes state the county judge's authority to obligate funds and declare administrative rules for conducting county financial affairs.  Clearly stated in the above-referenced statutes the county judge is immersed in the daily functions of financial management, actively involved in the day to day financial activities and requires readily available information such as reports compiled in a way that makes it useful and meaningful to carry out these duties assigned to the office of county judge." 

"In matters relating to the financial operations of county government, state law is clear and concise in how those operations are carried out," he continued. "Arkansas law defines the jurisdiction of financial matters lies in the county judge's office.  Arkansas law 14-14-1103 limits the executive powers and duties of the Treasurer to those established by constitutional and statutory law, and 14-15-804 does not provide for the hiring of financial management positions.  Arkansas law makes clear that the county judge ensures compliance through adequate internal controls for the purpose of safeguarding resources, minimizing liabilities and interacting with the legislative audit." 

He pointed out that the amendment was not written by the county attorney.

"It was written and discussed without any transparency, without the eyes and ears of the public, without the benefits of official minutes," Judge Nelson wrote. "It is ironic that the word transparency was used in the document being written behind closed doors.   It was stated at the November 18, 2019, Personnel Meeting, in support of this Ordinance that Mississippi County is one of only six counties that have their finance department under the purview of the county judge.  This is a deceptive statement.  The truth is that every finance department in the state has the county judge as the department head. Only six counties have a finance department and all six are under the purview of the county judge.  Furthermore, not one county in the state has the treasurer's office as head of the finance department.  The remaining sixty-nine counties have the county clerk perform the financial duties. This amendment has nothing to do with efficiency or transparency."

He encouraged justices to carefully consider each piece of legislation that comes before them. 

"Discuss these important issues among yourselves as well as your constituents," Judge Nelson wrote. "Ask questions. Don't allow yourselves to be misled by anyone.  Think for yourselves, individually and the most important thing to consider is if what you are voting on is written to be true and correct.  As elected officials, being truthful stands foremost to all of our responsibilities."