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Lehigh County executive out-maneuvers commissioners on appointment

By Randy Kraft, WFMZ.com Reporter, RKraft@wfmz.com
Published On: Feb 01 2014 02:33:07 PM CST
Updated On: Feb 01 2014 04:43:39 PM CST
Lehigh County Executive Thomas Muller

Lehigh County Executive Thomas Muller

ALLENTOWN, Pa. -

In a bare-knuckles political fight early Friday evening, Lehigh County Executive Thomas Muller out-maneuvered four conservative county commissioners who are determined to stop the appointment of Daniel McCarthy as the county's new director of administration.

The gloves came off during a special meeting of the county commissioners, called solely to act on McCarthy's appointment.

After they succeeded in preventing a county commissioner from voting for McCarthy by phone, the four Republican commissioners -- Vic Mazziotti, Scott Ott, Lisa Scheller and Michael Schware -- appeared poised to kill the appointment.

It looked like good old-fashioned political payback because Democrat Muller beat Republican Ott in last year's race for county executive -- and Democrat McCarthy contributed to Muller's campaign.

But Muller quickly withdrew his nomination of McCarthy before commissioners could vote on it.

Only eight of the nine commissioners were at the meeting. The missing commissioner - Republican Percy Dougherty-- has announced that McCarthy has his complete support to become director of administration.

The confident county executive intends to resubmit McCarthy's name when he's certain he has the votes of five commissioners to confirm him.

"I'd like to bring it back as soon as possible," said Muller. "I'm going to check to see when the five votes are going to be present."

"He had five votes tonight," said Muller after the meeting, adding that's why the four commissioners would not allow Dougherty to vote by phone.

After Friday night's meeting, Ott maintained the issue is not about politics, but good governance. He said the commissioners have an obligation to serve as a check and balance on the administration.

"Under some conditions, the board should say no. We're not just there to be a rubber stamp."

McCarthy attended Friday's meeting, but did not address the commissioners. After the meeting, he said he was discouraged and disheartened that his appointment has become a political issue. "I didn't think it would be so controversial. That's catching me by surprise. I hope we can have a resolution of this quickly."

In interviews after the meeting, three of the four commissioners who oppose McCarthy's appointment said they don't believe he is qualified for the job.

Muller announced he wanted McCarthy to be his new director of administration in late December -- only a week after McCarthy ended a 12-year career as a county commissioner and before Muller was sworn in as the county's newly-elected executive.

McCarthy already is on the county payroll as Muller's acting director of administration, but he can only continue in that capacity for a couple more months.

The unusual Friday night meeting was called because the commissioners had 30 days to act on Muller's appointment of McCarthy. If they did not act by the middle of next week, his appointment would have been approved automatically. But all that changes now that his nomination temporarily has been withdrawn.

The commissioners initially were expected to act on McCarthy's appointment at their Jan. 8 meeting, then at their Jan. 22 meeting.

But they said they still needed more time to consider information they received from and about McCarthy. So they scheduled Friday night's special meeting.

Dougherty was absent, as he announced he would be when the meeting was scheduled.

At the beginning of the meeting, Commissioner David Jones made a motion for the commissioners to suspend their normal rules and allow Dougherty to vote by phone. His motion was seconded by Geoff Brace.

Jones and Brace are the only Democrats among the nine commissioners.

Jones said it's important to have "the full voice of the board" for such a critical vote.
The director of administration serves as the county's executive's right hand man, including as his liaison to the county commissioners.

"I'm against this motion," said Schware. "Our rules don't allow for it
- and I think with good reason. The citizens of Lehigh County deserve to have their elected officials here."

Jones' motion to allow Dougherty to participate by phone failed in a 4-4 vote.

Voting to let Dougherty vote were Jones, Brace and Republicans Thomas Creighton and Brad Osborne.

Muller immediately took the podium after that vote, cutting off Scheller, the chairwoman, as she said: "The motion to suspend the rules fails..."

"I want to address the board then," said Muller. "I am withdrawing former Commissioner McCarthy's name from nomination at this moment."

Scheller said that left nothing for the commissioners to vote on at the meeting and asked Muller what he intends to do about the position.

Said the county executive: "My intention is to have Mr. McCarthy continue on an interim basis, which he's allowed to do under our charter, and to bring his nomination back in the future."

Legal opinions

Mazziotti asked the representative from the county solicitor's office "if this is an appropriate action on the part of the executive."

Atty. Catharine Roseberry, the county's senior counsel, said Muller can withdraw his nomination and resubmit it as long as the commissioners have not voted on it. "It could not be resubmitted if you had voted no."

"Could we vote on the issue before us?" asked Mazziotti.

"It's no longer before you because he has withdrawn it," said Roseberry.

"It's on the agenda," said Mazziotti.

"That's only because of his submission of the appointment to you,"
said Roseberry.

But Ott argued that McCarthy's appointment was on the meeting's agenda because the commissioners wanted it on there. "It's our agenda," he said.

Ott also said Muller essentially was telling commissioners he's not really withdrawing the nomination. "He intends to delay and resubmit the nomination. He's just engaging in a stalling tactic."

Said Ott: "Since we control our own agenda and because we've just been told that it's coming back, a vote would seem to be not out of order."

Responded the county's lawyer: "There is really nothing for you to vote on." She said the county executive controls the nomination/appointment process under the county charter. "This is on your agenda as a result of the process started by the executive."

Briefly lightening the mood, Ott quipped: "There's a reason why we pay this woman as well as we do."

Because McCarthy's name was withdrawn by Muller, Roseberry assured Mazziotti that McCarthy cannot automatically become director of administration because commissioners did not act on his appointment.

"Once he is re-nominated, that starts the clock again?" asked Scheller.

"Correct," said Roseberry.

Ott also questioned why Muller could just verbally withdraw the nomination from the commissioners' agenda. Roseberry again backed Muller, adding: "I suspect he could have scribbled something quickly and given you a piece of paper if you need that."

Roseberry told Schware that McCarthy can continue as the county's acting director of administration for 90 days. She said he took that
position on Jan. 6 and can remain in it for no more than 90 days in
a one-year period.

Angry words

Directing his comment to Mazziotti, Muller said all he's done is stick to exactly to what the county charter allows him to do.

"I've done something you did not do at the last meeting," said Muller.
"I've been honest with you as to what I would do if you faltered, which is not what you did with Mr. Dougherty."

"I think that's inappropriate and I resent it," said Mazziotti. "Don't accuse me of being dishonest."

"The shoe fits," said Muller.

Phone debate

In arguing against the motion to allow Dougherty to vote by phone, Schware said all commissioners have missed meetings at times or cut short trips to attend meetings He said they even come in sick or when they could be home dealing with family matters.

Scheller said she opposed the motion made by Jones for the same reasons stated by Schware.

Scheller said a previous resolution allowing county commissioners to vote by phone once was rejected by 6-2. She added Dougherty was one of the commissioners who opposed that resolution. (Muller later said that was in 2002.)

Said Mazziotti: "I think I'm going to follow Commissioner Dougherty's lead on this and vote no."

Both Schware and Scheller said the commissioners should develop a policy if they want to change the rules and present it as a new resolution.

Schware said commissioners don't allow the public to call in their comments during a commissioners meeting. "If we're going to develop a policy that allows commissioners to do that, we ought to be fair and allow the public to do it as well."

Brace told Scheller that, at the Jan. 22 meeting, he was under the impression from his fellow commissioners that they would do everything they could to allow Dougherty to participate in Friday night's meeting and vote by phone.

Brace said he would not have voted to defer action on McCarthy's appointment at that Jan. 22 meeting if he had known

Scheller said commissioners had to get a ruling from the county legal department whether or not it was permitted and learned a motion to suspend the rules was required.

Arguments against McCarthy

After the meeting, Ott named three different reasons for opposing McCarthy's appointment.

He maintained McCarthy, a lawyer, does not have the "skill set" to be director of administration. He called him a marginal match for the job. "If he had been nominated for solicitor, I wouldn't be batting an eye."

Because he was a county commissioner for 12 years, McCarthy will get a much larger county pension than if Muller hired someone who never worked for the county. "That's not his fault," acknowledged Ott. "He didn't write the pension laws."

Ott also said McCarthy was one of the top, if not the top, political contributor to Muller's campaign in the last election, with a total of
$6,500 coming from McCarthy and his campaign committee. "We have to make sure the executive is not putting political cronies on his cabinet. Public trust could be jeopardized by an appointment like that."

Ott added: "None of these things suggest McCarthy has done anything wrong." He called McCarthy "a nice guy who has done a lot to serve the county."

"I thought my life skills, my professional skills would be beneficial to the job," said McCarthy right after the meeting.

After the meeting, Mazziotti said after four years on the job McCarthy will be eligible for a pension of about $28,000 a year, because of a state system that allows elected officials to factor in their part-time work as county commissioners. He said if Muller hired someone who never worked for the county, that person would get a pension of less than $9,000 a year.

McCarthy said he looked into whether he could accept a reduced pension, to appease commissioners who oppose him, but learned the state pension system does not allow him to do that.

To get his appointment approved, McCarthy told some commissioners he was willing to give up medical benefits for himself and his wife, which would amount to a savings of $50,000-$60,000 to the county over four years.

Muller said he didn't endorse McCarthy's attempts to reach some compromise with the commissioners, but added it was McCarthy's call.

He joked: "I told him 'I don't negotiate with terrorists'."