Council to talk about town staff pay study

FRONT ROYAL – The Town Council plans to go behind closed doors Monday to talk about employee salaries and a compensation study.

A proposed motion on the council’s meeting agenda indicates that members could convene in closed session “with respect to discussion and potential implementation of the results of a Town employee compensation study with respect to specific Town employees.”

The motion goes on to cite two sections of the Virginia Freedom of Information Act that allow the council, at its choosing, to discuss certain topics in closed session: the assignment, appointment, promotion or performance of specific employees or appointees of the town and the investment of public funds where competition or bargaining is involved where, if made public initially, the financial interest of the governmental unit would be adversely affected.

The town entered into a contract with Paypoint HR earlier this year at a cost of $25,750 to conduct a compensation study of Front Royal employees. Whether or not the contractor has completed the study was not disclosed Thursday. Why council would want to discuss the study and any results it may include before its public release also remained uncertain.

Town Attorney Doug Napier said Wednesday that he didn’t know if the consultant had completed the compensation study. Napier said it was his understanding that the consultant wants to go over the study with the council.

“But it was my sense they were trying to get a handle … on how they want to proceed with some positions, to get these positions’ compensation in line with other jurisdictions and with the private sector to make everybody competitive,” Napier said.

The attorney recalled an update on the consultant’s work on the study given a few months ago. It showed that some positions remained under compensated. The council wants the consultant to finish the work on the study in order to consider the recommendations during work on the next budget, Napier said.

“I really don’t know a great deal about exactly what is going to be done other than they are going to be discussing (the study) with respect to certain employees and the results shouldn’t be made too public because … a lot of these positions are competitive with respect to other organizations and other jurisdictions and it just puts the town in a difficult spot,” Napier said.

In an email Thursday, Napier reiterated the study remains in draft form not yet seen by staff members or the town council. Napier stated that the council might want more or different information than appears in the study, or there may be information in the document that is “improper” to be released under the Virginia Government Data Collection and Dissemination Practices Act. The document also could contain information not subject to release under FOIA, Napier added, noting he had not yet seen the draft. Once finalized, the study will be subject to public release, Napier stated.

But representatives with the FOIA Advisory Council and the Coalition for Open Government say the council’s use of a closed session to talk about the compensation study straddles an ethical line.

Alan Gernardt, executive director and senior attorney for the FOIA council, said town leaders can talk use the personnel exemption to talk in closed session about the performance of individual employees. However, Gernhardt questioned the council’s use of the expenditure of public funds clause to conduct its discussion in closed session. Pertaining to the study as a public record, Gernhardt said council could withhold information about individual employees if they consider it part of personnel information. However, salaries and rate of pay information is public information, Gernhardt said.

Megan Rhyne, executive director of the coalition, said in an email that FOIA exempts certain records from view such as those “recorded in or compiled exclusively for use in closed meetings.” Rhyne went on to cite FOIA as stating that “nothing in this chapter shall be construed as denying public access to the nonexempt portions of a report of a consultant hired by or at the request of a local public body or the mayor or chief executive or administrative officer of such public body if the contents of such report have been distributed or disclosed to members of the local public body or the local public body has scheduled any action on a matter that is the subject of the consultant’s report.”

Rhyne questions the use of the personnel exemption to discuss employee pay.

“Using the personnel exemption to me is somewhat dubious because we’re talking about salaries,” Rhyne stated. “Furthermore, a compensation study would not be about the performance or evaluation of individual, identifiable employees. They are typically overviews of what that locality’s salary is for these types of employees as compared to what they’d be paid in other localities or how they stack up against state or national averages.”

The town could release certain portions of the study and redact those parts considered personnel records, Rhyne stated. The council could not discuss the entire report in closed session, she added.

Rhyne called the use of the section on public funds to justify a closed-session discussion “misplaced,” adding that the council could cite this exemption to talk about buying such items as fire trucks and the need to compare what other localities pay for the equipment.

“I would not equate investment of public funds with conducting analysis of your payroll, an existing, consistent budget item,” Rhyne stated. “If you interpret the phrase that broadly, then conceivably any budget item could be talked about in this section.”

The government’s financial interests are not at risk, Rhyne added. The budget with its payroll obligations is public. The council has the final say over how much the town will spend on payroll and what employees receive. Rhyne went on to say that employees can ask for raises and point to neighboring localities, where salary data is also public, then decide whether or not to accept terms. The decision would not hurt the government as another potential employee could accept the terms and take the job.

“So, long story short, I think they are approaching this incorrectly and I would encourage them to talk publicly about the results of their survey, so that the employees and the public can see what is fair compensation, what is possible under existing tax revenues, and what is aspirational for future staffing needs,” Rhyne stated.