Infighting Plagues Governmental Accountability Office

There are probably novels of international intrigue with plots less convoluted than the past year's events inside the newly created state Office of Governmental Accountability, or OGA.

The OGA is a super-agency created in 2011 by Gov. Dannel P. Malloy and the Democrat-controlled state legislature, over Republicans' objections, in a consolidation bill that merged nine formerly independent watchdog agencies — including those in charge of elections enforcement, public officials' ethics enforcement, and freedom of information.

Several of the watchdogs resented becoming divisions in a superagency headed by a Malloy appointee, and predicted there would be problems.

Now, some of those problems and resentments are surfacing in public.

On Monday, the Government Accountability Commission, made up of representatives from all the watchdog divisions in the new superagency, is scheduled to vote on whether to approve a 10-page, detailed evaluation it has written on the job performance of the OGA's executive administrator, David Guay, Malloy's $118,000-a-year appointee.

That's right: A commission composed of people from divisions of the OGA, below Guay on the organizational chart, is formally evaluating him as the head of the agency. What's more, their evaluation finds his performance lacking in certain areas — and, conceivably, if Guay does not address the criticisms to their satisfaction — the underlings could try to fire him.

"While the [Government Accountability Commission] has the authority to terminate [Guay], Commissioners would prefer to work with him to identify areas that need improvement and resolve them," says a draft of the evaluation that's to be voted on Monday.

The Courant obtained the draft Friday via a public records request. Here's an excerpt, which gives an area where the panel says Guay needs to improve:

"Regular communications by [Guay] with the division heads have not been established. It is unusual for him to visit any of the division offices or to meet with the division heads one-on-one. This failure on the part of [Guay] to engage in two-way communication regularly is a primary concern. … It would be beneficial if communication from [Guay] were more pro-active rather than reactive."

The evaluation says he did a lot of things right, too — but here's where the story gets even more complicated: Guay says the watchdog divisions' commission, although it was established by the 2011 legislation that created the OGA, has no legal authority over him.

That puts him and the commission on collision course.

Guay says the watchdog panel doesn't have the power to evaluate him. He says it didn't have the power to compile the long list of "expectations" for his performance that it wrote last February, including deadlines by which he was supposed to accomplish certain tasks.

And so he wrote a letter Friday to the chairwoman of the commission — Carol Carson, whose full-time job is as executive director of the Office of State Ethics, one of the OGA's divisions — and politely declined its invitation to attend the Monday meeting, at which his evaluation is to be considered.

"Thank you for the invitation to the November 19, 2012, meeting of the Governmental Accountability Commission (GAC) and by this communication, I am informing you that I will not be in attendance," Guay wrote.

He said it appeared that "the GAC continues to attempt to set and measure its own expectations of the Executive Administrator; however as I've previously stated, the authority to supervise or direct the activities of the Executive Administrator was not granted to the GAC by the General Assembly."

Sounding perhaps a little optimistic under the circumstances, Guay concluded: "I look forward to the continued collaborative work of each of our divisions within the Office of Governmental Accountability."

Monday's upcoming meeting is the second that Carson's panel asked him to attend to discuss the pending evaluation. Guay also declined to attend a session on Oct. 25 — and the panel did not take kindly to it.

"It is of grave concern to the GAC that the [executive administrator] is unwilling to meet to discuss the status of the consolidation or to collaborate on ways to make it a success as he enters his second year of employment at the Office of Governmental Accountability (OGA)," the draft of the evaluation says.

Who's In Charge?

The battle over who's in charge at the new Office of Government Accountability has been building for about a year — and its origins rest in the way the 2011 legislation was written by majority Democrats, in response to critics who said the independence of the watchdog agencies would be compromised by the merger.

Republicans voiced much of that criticism. One of them, state Sen. Michael McLachlan, R-Danbury, suggested that the proposed organizational structure was fundamentally flawed, with "these individuals coexisting on the commission that has oversight over the multiple sub-agencies. … I can't seem to grasp what happens when you have a major conflict."

Democrats in the administration and legislature were careful to structure the new agency so its executive administrator — Guay, as it turned out — could not tell the head of each watchdog division what to do.

In other words, Democrats said, the administrator was the head of the agency, but those in the divisions were not his "subordinates." He's the boss — but he's not their boss.

The consolidation was done for reasons of office efficiency and budget savings, the Democrats said, and it would not affect the watchdog divisions' regulatory and enforcement operations.

But by creating that unique structure — or, as critics characterized it, but trying to have it both ways — they left room for differing interpretations of, and disputes about, who has the right to do what.

In particular, the creation of the watchdog divisions' commission — the so-called GAC — led to the current battle.

The GAC was created to demonstrate that the watchdogs were not being robbed of their voices in the new superagency.

The law gave the GAC two specific duties.

The first was to "meet for the purpose of making recommendations to the Governor for candidates for the executive administrator of the Office of Governmental Accountability" — which it did in 2011, resulting the hiring of Guay, who had been director of the State Board of Accountancy for 22 years.

The second was to meet "for the purpose of terminating the employment of the executive administrator," in case that ever became necessary.

Guay bases his position on the fact that the law mentions nothing about the GAC setting "expectations" for his performance or evaluating him.

But Carson argues that there's no way the GAC could ever decide to terminate the executive administrator's employment if it does not first establish standards and expectations, and then measure whether he met them.

When Guay declined to attend the Oct. 25 meeting of Carson's panel, at which members discussed the evaluation that now has been drafted, he called Malloy's chief legal counsel, Andrew McDonald to inform him that he wasn't going to the session, McDonald said Friday. McDonald said he told Guay it was "his call."

McDonald said "Mr. Guay's interpretation seems to be a very plausible reading of the statute in its simplest terms. The statute … constrains the commission's activities to two very discrete purposes" — holding meetings to either recommend job candidates for administrator, or to fire that administrator.

McDonald said he's not intervening in the dispute, but added that if Carson and her GAC want to "undertake activities that are not included in the statute," they might get "an opinion from the attorney general that allows them to."

Carson said although the law doesn't mention evaluating the administrator, a Democratic state senator said during the 2011 legislative debate that the GAC would "have the power to evaluate and terminate the Executive Administrator." That shows what the "legislative intent" was, Carson said.

McDonald said a state statute says that if a law is understandable on its face, it should be obeyed without delving into "legislative intent."

Carson said the law is unclear, and the legislative intent establishes that her panel can evaluate him.

What will her panel do if Guay does not heed the evaluation and address its recommendations? Would it try to "terminate his employment"?

"It could give him another set of expectations and set up another meeting to give him a chance to meet … those that haven't been met," Carson said.

If he didn't comply, it theoretically could try to terminate him, she said. All of that would have to be discussed in depth, she said.

When Carson reported on the controversy to members of the Citizen's Ethics Advisory Board last Thursday, one of the board members said it sounded like the new governmental accountability office was "dysfunctional."

Guay had his own way of describing what it's been like to run what he calls a "unique" state agency, which is a newly created collection of units that enjoy unusual independence. "It's like flying the airplane while you're building it," he said.

Jon Lender is a reporter on The Courant's investigative desk, with a focus on government and politics. Contact him at jlender@courant.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter@jonlender.

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