Ottawa County officials may not get raises amid legal controversy
Ottawa County Commission Chair Joe Moss, Jan. 10, 2023 meeting | Sarah Leach
Raises for elected officials in Ottawa County are in doubt after a legally flawed process unfolded earlier this year, resulting in politically charged accusations from conservatives controlling the county board.
Larry Jackson, chair of the county’s compensation commission, said he’s been asked to resubmit only some determinations from the commission’s April meeting, which likely wasn’t conducted legally.
This comes after Commissioner Joe Moss, the GOP chair of the county board, accused Jackson, a Democrat, of sabotaging the recent pay rate evaluation process for countywide elected officials — but numerous discrepancies could invalidate a process that experts say was the county administration’s responsibility to follow.
At issue was the commission’s determination to raise county commissioners’ pay by 60% and a $1,000-per-month health care stipend — both starting in 2025.
As the May 14 meeting got underway, Moss announced he removed the commission’s determinations from the agenda, calling some of the work “invalid.” Moss claimed that Jackson, current chair of the Ottawa County Democrats, colluded with local media outlets to interfere with a May 7 special recall election that saw Democrat Chris Kleinjans defeat Ottawa Impact Republican incumbent Lucy Ebel.
“You’ve been played,” Moss said at the meeting. He called the raise a “phantom increase.”
“Larry Jackson has a vested interest in Republicans to lose elections,” Moss said.
Moss leads Ottawa Impact, a far-right fundamentalist group formed in 2021 over frustrations with county and state COVID-19 mitigation measures that currently has a six-seat controlling majority on the 11-member board. After coming into power in 2023, the group has made a series of controversial decisions that have led to five lawsuits within 14 months and a brief investigation from the Michigan Attorney General’s Office that did not result in further action.
Jackson responded to the allegations on May 15, saying politics had nothing to do with it and that he and his fellow commissioners acted in good faith, but didn’t receive adequate support from county administration.
“I don’t work for the county. I just came in to make a recommendation off the information that I received. I made that recommendation. And then the county commission chair grandstanded when it’s not even on the agenda,” he said. “Regarding Chair Moss’ unfounded and damaging allegations of misconduct, including accusations of colluding and election interference, I categorically deny these claims.”
Compensation commissions are intended to remove the appearance of political gerrymandering in relation to county commissioner pay.
“The point of the compensation committee was to try to get a little bit of expertise to figure out what positions like the clerk and the sheriff make, instead of making it just a political hatchet job or who has the most influence,” said Doug Van Essen, former Ottawa County corporation counsel.
Ottawa County’s compensation commission was formed in late 2005 and is charged with making recommendations for the compensation of county elected officials in even-numbered years.
State statute requires that compensation commissions must:
Have seven members.
Have members appointed before Oct. 1 of the year of appointment.
Meet in even-numbered years for not more than 15 “session” days.
Have a majority of the members serving on the commission “be in concurrence” with any determinations made.
Comply with Michigan’s Open Meetings Act.
Jackson was appointed to the seven-member board in 2022 by the previous Republican-controlled board of commissioners. In December, the current board appointed four new members, all supporters of Ottawa Impact, giving the group a four-person majority on the compensation commission.
What happened with the compensation commission
The compensation commission first met March 11, setting the 45-day deadline for April 25.
In total, the commission met five times, but the first determinations occurred April 11, when four of the six active commissioners — one resigned after the first meeting — decided three separate determinations to forward to the county board:
The prosecutor, sheriff, treasurer, clerk/register of deeds and water resources commissioner shall have a salary increase of 8% effective Jan. 1, 2025, and a salary increase of 6% effective Jan. 1, 2026. (Approved 4-0)
The chairperson of the Ottawa County Road Commission shall have a salary set to $15,500 per year effective Jan. 1, 2025, and a 0% increase effective Jan. 1, 2026, and all other road commissioners shall have a salary set to $12,500 per year effective Jan. 1, 2025 and a 0% increase effective Jan. 1, 2026. (Approved 4-0)
The chairperson of the board of commissioners shall have a salary increase of 60% effective Jan. 1, 2025, and a 0% increase effective Jan. 1, 2026. The vice chairperson of the board of commissioners shall have a salary increase of 60% effective Jan. 1, 2025, and a 0% increase effective Jan. 1, 2026. All other commissioners shall have a salary increase of 60% effective Jan. 1, 2025, and a 0% increase effective Jan. 1, 2026. All commissioners shall receive a monthly stipend of $1,000 for purposes of compensation for health care coverage. (Approved 3-1)
On May 2, the commission met a final time with all six commissioners present to approve unanimously additional salary increases for the treasurer and water resources commissioner to make their compensation match the clerk/register of deeds effective Jan. 1, 2025, and provide a 6% increase to their salaries effective Jan. 1, 2026.
What’s at issue
Moss said there were two determinations that were legally problematic.
He claims the May 2 meeting occurred outside the 45-day window and that the 60% county commissioner raise yielded a 3-1 vote, which didn’t meet the required threshold of “a concurrence of a majority of the members appointed and serving,” which means four members needed to vote for the determination.
In a legal opinion provided to county commissioners on Friday, Kallman Legal Group (KLG), which serves as the county’s corporation counsel, that the May 2 meeting and 3-1 vote were not valid determinations.
“The primary issue with the May 2, 2024, meeting was that it was held after 45 days had elapsed. The first meeting of the commission was held on March 11, 2024, which therefore required all determinations be made on or before April 25, 2024,” according to the opinion.
In its legal opinion this week, KLG recommended that a “corrected resolution” be issued “reflecting that the only proper determinations” made on April 11 were the increases for the countywide positions and the road commissioners.
However, more legally problematic factors have been uncovered.
The first is whether or not the board of commissioners was following the state statute correctly when they appointed the four new members in December and not before Oct. 1. In addition, a review of the county’s calendar shows that the April 11 meeting was never properly noticed in accordance with the Open Meetings Act.
Also, it’s not clear if the commission had the authority to make a determination for the county road commissioners, who are appointed, not elected.
Minimally, that could mean the decisions on April 11 are entirely invalidated. It’s also possible that the entire body of work for the commission is invalid.
Legal Memo County Compensation Commission Final
There’s no clear way to fix it
When Commissioner Doug Zylstra, a Democrat, asked on May 14 what next steps were on the compensation commission’s determinations, Moss said he would entertain a revision at the board’s next meeting on May 28.
Zylstra asked if it was legal to send the matter back to the compensation commission, which technically now is disbanded.
“I’m not sending anything back,” Moss said. “I’m asking for something that’s valid.”
KLG recommended to “memorialize the determinations and votes that occurred on April 11, 2024,” but the commission technically has disbanded after the 45-day expiration date and can’t reconvene again until 2026.
“I think that the compensation commission, according to the law, did its report on time,” said Field Reichardt, who served on the commission for 12 years and chaired it in 2018 and 2020. “I don’t think they can send it back to the commission. I think the commission did its work.”
Jackson agreed.
“If it’s wrong, then vote to reject it. They’re asking me to resubmit it by excluding something that was in the meeting. That’s not how it works,” he said. “I’m done with my duties.”
KLG also asked for meeting minutes from the April 11 meeting, which Jackson said already were produced.
“They’re asking me to write meeting minutes when we already have meeting minutes,” Jackson said. “I don’t know if a civilian person is supposed to be typing up meeting minutes for an official county meeting.”
The board has options it can exercise
State law says a board of commissioners has options to respond to a compensation commission’s determinations.
The board can:
Reject the determinations by a two-thirds majority.
Accept the determinations.
Do nothing — in which case, the determinations by the compensation commission will go into effect in 2025.
Rick Martinez, who vice-chaired the compensation commission in 2022, said he had four members on his commission that year.
“In my understanding, it’s either an up or down vote — yes or no, or they can choose not to vote on it, and then it goes into effect by default.”
Jackson agreed.
“They’re supposed to be making their decision on the recommendation that we make,” he said. “Nowhere in [state law] says they make their recommendation on what happened in the meeting.”
Dangers of taking no action
In the legal opinion, KLG said, because “no proper determinations were made,” the board didn’t need to take action.
That could create a future legal problem, according to Al Vanderberg, former longtime Ottawa County administrator.
“If they don’t vote at all, it automatically goes into effect on Jan. 1,” he said of the compensation commission’s determinations. “It was voted 3-1,” he said of the 60% raise, “but somebody has to contest it. If nobody contests it, then bad things can happen.”
Vanderberg said the compensation committee’s findings are “determinations,” not “recommendations.”
“It’s a determination to the board of commissioners. It’s their choice whether to accept or reject the determination in whole or in part,” he said. “If they fail to act, then the determination automatically goes into effect on the following Jan. 1.”
Vanderberg said there’s no reason for the board not to vote the invalid measures down to ensure that future problems don’t crop up.
“I think the danger is that it could all go into effect if they don’t vote on it,” Vanderberg said. “Somebody needs to make an issue out of it. And the right thing to do, really, is kill it. Make sure the board rejects that one recommendation, and they have all the way up until Dec. 31.”
Reichardt, who chaired the compensation commission in 2020 and 2018, said he thinks Moss is playing political games.
“My take is that there was such a negative reaction that the Ottawa Impact people don’t know what to do,” he said. “It looks to me like Ottawa Impact realizes that they opened a can of worms here and they’re trying to put the worms back in the can.”
Who’s responsible?
Moss blamed Jackson for not following state law.
Others, however, said it’s up to the administration to ensure meetings are properly noticed and conducted in a way that complies with all the statutory obligations.
“It’s the county,” Vanderberg said. “The county administrator is responsible.”
Jackson said Deputy Administrator Ben Wetmore and county administrative aide Jordan Epperson attended the meetings, and that he wasn’t provided any guidance on how to conduct the commission’s business other than a printout of the statute.
Both Martinez and Reichardt, who account for the past three cycles of the commission’s work, said previous administrators provided binders of research, ensured meetings were properly noticed and took minutes.
Jackson said the situation has been frustrating.
“This is all wrong,” he said.
Reichardt went a step further and blamed Anderson.
“This is the fault of the county attorneys and Interim Administrator Jon Anderson,” he said.
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