By Tony Biasotti Tuesday, March 15th, 2022

NOTE: This article was posted March 15, 2022 and updated March 16 to add information about allegations of misconduct by Mike Powers, originally reported by the Thousand Oaks Acorn.

The Ventura County Board of Supervisors may have violated state open meetings law when it put County Executive Officer Mike Powers on administrative leave on March 8, two days before he retired, according to a leading expert on open meetings and public records in California.

Powers, 59, retired abruptly on March 10, saying he wanted to spend more time with his family.

County officials have declined to comment on the reason for his retirement, but they have confirmed he was placed on paid administrative leave two days before he stepped down.

On March 16, the Thousand Oaks Acorn reported the reason for that leave was an allegation that Powers sexually harassed a female employee in the county executive office. An outside attorney the county hired to investigate found the allegation was substantiated by “a preponderance of the evidence,” which is the typical burden of proof in a civil lawsuit.

Powers denied the allegations to the Acorn and said he retired in part because he felt he was treated unfairly during the investigation.

The Business Times submitted a public records request to the county on March 14, asking for documents related to any complaints against Powers. The county had not replied by press time on March 16.

According to the Acorn, the outside investigation found that Powers repeatedly kissed a female employee without her consent and continued to pursue a romantic relationship with her despite her refusals. He also referred to the woman with what she said was a racially insensitive nickname, amending “Pico Rivera” to her name, even though she was from a different part of the Los Angeles area.

The Board of Supervisors decided to place Powers on leave during a closed session on March 8. State law allows elected officials to hold closed meetings for a few purposes, including discussions of ongoing or potential lawsuits; real estate negotiations; contract or salary negotiations with unions or individual employees; and the hiring, firing, discipline or evaluation of an employee.

Public agencies must state the reason for the closed session beforehand, and are generally required to announce any decisions made in closed session as soon as the session ends.

The Ventura County Board of Supervisors did not announce Powers’ leave after its March 8 closed session; the decision did not become publicly known until after Powers retired. And the publicly circulated agenda item for that closed session did not mention any possible review or discipline of the CEO. Instead, it said that the board would hold a “conference with legal counsel” regarding “significant exposure to litigation” in three separate cases.

“If what they did was decide to put this person on administrative leave, then that decision should have been disclosed,” said David Snyder, the executive director of the California First Amendment Coalition.

Snyder is a lawyer and a former journalist and an expert on the Brown Act, the state law that covers public access to government meetings. In addition to the lack of a public announcement of Powers’ leave, Snyder said the Board of Supervisors also appears to have violated the Brown Act by releasing an agenda for the closed session that did not mention discussion of the CEO’s employment or potential discipline.

“If that’s what they were discussing, that should have been called out separately on the agenda,” he said. “There may be overlap with some anticipated litigation, but it should have been separately agendized. … You can’t go into closed session for a valid reason and then talk about something else once you’re in there.”

The county’s chief attorney, County Counsel Tiffany North, said in an email to the Business Times that the board’s actions were legal.  

“There was nothing required to be reported out of closed session under the Brown Act since Mike Powers remained in a paid employee status. The items were properly listed and described on the closed session agenda,” North said. She declined to comment further.

The Brown Act states that “action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session” must be reported publicly after the closed session.

“I think putting somebody on administrative leave falls under ‘affecting the employment status of a public employee,’” even if the leave is paid, Snyder said.

“Where there’s ambiguity, the default under the Brown Act should be to transparency,” he said, pointing to the California Constitution’s requirement that any law or court ruling “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

“It may be the case that the county has some other legal authority they’re relying on to say administrative leave doesn’t count, but I’m unaware of any such authority,” Snyder said.

Brown Act violations are technically criminal misdemeanors and can be investigated by a district attorney’s office, but Snyder said he’s never heard of such a prosecution in California. The typical remedy for a Brown Act violation is for the city council, board of supervisors or other government body to re-do the disputed action, Snyder said. That could mean publishing a new agenda and then meeting again for another vote on the matter in question, or holding a public discussion and vote on an item that was originally voted in closed session.

Or, in a case like the one in Ventura County where the closed session appears legitimate but the dispute is over the lack of an announcement of the decision, the remedy could be a public disclosure of how each supervisor voted in closed session.

Powers retired about eight months after the board approved a new five-year contract for the CEO. Powers received a 5% pay increase, bringing his annual salary to $328,975.

The Board of Supervisors plans to appoint an interim CEO at its next meeting, on March 22. In the meantime, the top-ranking executive in county government is Assistant CEO Mike Pettit.

The county of Ventura is the biggest local government in the tri-county region, with a budget of more than $2.4 billion and nearly 10,000 employees. Powers worked for the county for around 30 years, the last 11 as its chief executive.

On the day of his retirement, he told the Business Times he thinks “things are in a good place” at the county. Supervisor Carmen Ramirez, who represents the Oxnard area and also chairs the Board of Supervisors, said in a statement emailed to the Business Times that the county has “an excellent leadership team in place to assure continuity of operations while a new CEO is selected.”