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NCDHD Board Structure Questioned By Members

Sep 14, 2022 (0)

By Luann Schindler 

Summerland Advocate

The North Central District Health Department board of health faced several questions from some of its own membership, Friday, when the group met in O'Neill.

Concerns about the structure of the board of health and powers granted to an unidentified executive committee, legal representation, the district's computer system policies and lack of complete inventory, were expressed.

James Ward, a Cherry County Commissioner serving on NCDHD's board, asked what action was taken, and when, to form an executive committee on the board of health. 

Ward said, “A few emails were popping around that said, ‘After consultation with the executive committee, we're doing this.' I just want to know what's going on.”

Ward said he has asked the question several times and has never been provided information, including any resolution made, outlining executive committee responsibilities.

“I feel like it's trying to pull teeth and frankly, I'm done playing games,” Ward said.

Board of health chairman Kelly Kalkowski, of Boyd County, deferred to NCDHD Director Roger Wiese to answer if, and when, a resolution was passed.

“It's always been talked about. It's been the chair ... the four officers,” Kalkowski said.

Dustin Breiner, representing Holt County, said a resolution combining the secretary and treasurer positions was approved, but nothing identifying an executive committee was. 

According to NCDHD's website, the board of health is comprised of a supervisor or commissioner, as well as a “spirited citizen” from each of the nine counties comprising the district. Dr. Ron Morse, a family medicine physician at Avera Medical Group in Verdigre, and Dr. Kenneth Tusha, a Bloomfield-based dentist, also sit on the board.

Ward claimed some type of board action had to be taken to form an executive committee. Kalkowski said the executive committee has “never taken any action.”

“He (Wiese) may reach out and ask questions, but we never, as a committee, have said ‘That's full board approval.' At least I have not,” Kalkowski noted.

Ward continued to press, asking the responsibilities of the executive committee. Kalkowski said he interpreted the committee's role as a sounding board for Wiese, if he had questions or concerns.

“He could reach out to three or four instead of 20,” Kalkowski said.

Ward asked if those discussions were ever brought to the board, asking Kalkowski and Wiese for an example.

Kalkowski said he couldn't think of an example. Wiese did not respond.

At that point, Antelope County Commissioner Dean Smith asked an individual sitting at the end of the board table to introduce himself.

Patrick Guinan, an attorney with Governmental Law, LLC, representing the Nebraska Intergovernmental Risk Management Association, said he was “asked by officers to be here ... to answer questions board members may have.”

Smith asked who requested Guinan attend.

Guinan responded, “The executive director.”

Wiese added, “Along with the officers.”

Kalkowski said his understanding for having a NIRMA legal representative at the meeting was to answer questions any board member may have.

Guinan added he would answer questions about state statutes, the organization's bylaws and interlocal agreements.

Smith asked who would be paying NIRMA's fee?

NCDHD, according to the lawyer. 

Ward questioned if Governmental Law, LLC, had previously provided legal services for the NCDHD board.

Guinan said he didn't believe so.

“But we can certainly contract, in our capacity as Governmental Law, LLC, to provide legal services to private individuals, the health department, the county commissioners, or ...”

Ward interjected, “Is there an agreement right now for you to provide services for this board?”

Guinan said he believed so. According to the attorney, Wiese contacted Jeff Kirkpatrick, a fellow lawyer at Governmental Law, LLC, to answer questions. Kirkpatrick was unable to attend Friday's meeting, so Guinan was asked to fill in.

Guinan said Wiese hired the firm and signed a contract.

Wiese said talks with the law firm originally began when he was trying to get bylaws reviewed and a contract was signed Aug. 5.

According to Ward, engagement of outside legal services would be a board-level decision.

Guinan said it's not under the bylaws or interlocal agreements.

“Generally, an executive director has authority to sign contracts they want and engage services they need to run their facility,” Guinan said. “There are some requirements, some limits on indebtedness. Engaging council or assigning contracts to run a department is usually a function exclusive to the executive director.”

Breiner said, “That has certainly not been my experience on any boards I'm on. The board has been involved in all the contracts.

Smith asked for clarification that Guinan's law firm was solely hired to assist with the bylaw review.

As Guinan said that was his understanding, Wiese said, “That's not necessarily so. That was part of my contact with him, but we, as the executive committee...”

Bylaw review was not listed on Friday's agenda, according to Smith.

“(Brent) Kelly said he didn't feel like he could offer services to the board because of working with Holt County. When I talked to the executive ...” Wiese said.

Kalkowski interjected he has not made decisions as an executive committee. 

“I've had contact when Roger has questions and I give my opinion. What he does with that, making that decision, to my understanding, is still within his realm,” Kalkowski said.

Ward said the board needs to clear up whether an executive committee does or should exist.

“That ends up being quite convenient, a quite large responsibility on the advice, in different situations, as ‘The executive committee and I decided to do this,'” Smith said.

Ward questioned if actions have been taken by the executive committee, for expenditures in excess of $5,000, which need full board approval, per NCDHD bylaws.

Kalkowski said no.

“That's always happened at a board meeting. It's always been noted at a board meeting,” Wiese said, noting the executive committee has “never really made any sort of decision or approval for anything.”

Smith said when something is asked for, Wiese's response is “The executive committee and I. Thus, that gives the impression that's the official...”

Kalkowski interrupted, noting he understands how that could be misconstrued.

Kevin Mackeprang, of Bloomfield, representing Knox County Supervisors, said bylaws do not identify an executive committee.

“It has no powers. It has no directive,” he said.

Breiner pointed out for a second time, per bylaws, expenditures over $5,000 would require a motion and vote by the full board. 

Mackeprang responded, “That would be a violation from the executive director, not the executive committee.”

Kalkowski asked if the board wants to create a resolution to form an executive committee. With today's technology, it gives more transparency to reach out to all, instead of a few, according to Ward.

“They're not official decisions,” he said.

Guinan cautioned board members to follow open meeting laws.

Ward suggested moving from a quarterly back to monthly meetings. Wiese expressed concerns about having a quorum. Members could not come to a consensus when the board changed from monthly to quarterly meetings.

Smith read recommendations from the Nebraska State Auditor's department that may contradict the board's policy. According to Smith, the auditor recommended monthly review of bank balances by board of directors and management.

In response to a question by Smith, Wiese said he responded to the audit.

Smith said, “The response to the auditor was, ‘The board of directors and management will review bank balances on a monthly basis.' The board of directors, not the executive committee and not just the executive director.”

Sometime after June 2020, another entry on the auditor's report had the same response regarding note disclosures being presented on a regular basis.

“So, if that was the response by the executive director, unless somebody else was responding to the audit, we're not doing what was supposed to be done since 2020,” Smith said. 

Wiese asked Smith if he was keeping those duties within the realm of the executive committee.

“Now you're telling me the executive committee is making decisions on this stuff and they're making this monthly?” Ward asked.

“I don't think anybody's making any decisions...” Wiese said.

Smith cut him off, noting, “You wrote this.”

Ward said the full board should meet and agree to responses.

Board members agreed to hold meetings on a monthly basis, at 1 p.m. on the fourth Friday of the month, at the district office. Nine seated members are required for quorum.

An unidentified audience member asked if meeting agendas will be available. According to Wiese, legal notices “bounce around between newspapers.” He also reported KBRX, based in O'Neill, reports when the board will meet. An agenda is also sent to each county clerk and posted on NCDHD's website.

Ward said an agenda should be available at the health district office.

“Tape it on the front door, tape it on the window,” Ward instructed Wiese. 

The audience member said she had been unable to locate the agenda on the department's website.

“That's a good example. We're supposed to be having open meetings and people need to know where to look. If somebody is concerned about something, they can reach out to us,” Ward said.

Smith asked if Friday's meeting was posted on the NCDHD website.

Susan Taylor, former office manager for the department, said it was mislabeled on the website. 

A review of the NCDHD website shows a link to “22-8-31 Board of Health Meeting Notice,” which is the news release date, not the date of the meeting.

Ward asked if proceedings from every meeting could be published online on the district's website.

Guinan said per statute, the proceedings must also be filed with the county clerk's office. 

“The only requirement you have is to maintain your public records. Whoever the custodian of records is for the department must maintain them,” Guinan said.

Taylor asked who is the current custodian of record.

“It would be the executive director,” Guinan said. “It's whoever is in charge of holding records. It normally falls on whoever has the authority over the organization. Ultimately, he's responsible.”

Ward asked where the records are kept.

“Most all are online. Not online. They're on the desk...Everything is on the server,” Wiese said.

Smith asked whose responsibility is to put the files on the server. According to Wiese, no employee has been designated to take care of the proceedings.

Smith asked who has access to the meeting files. Wiese said it used to be on a server. 

“Now it's just on my permissions,” Wiese said.

Ward said a hard copy should be printed and approved and recorded so “there's an actual record.”

Wiese said in the past, the secretary has signed the minutes.

Kyle Kellum, representing Cherry County, said an official document should be signed. Wiese said he will add it to the agenda for the next monthly meeting.

Wiese asked if a committee should be formed to review bylaws.

Ward, Smith and Breiner recommended each board member review bylaws and bring concerns to the full membership.

“My goal would be to give you a solid draft so it can be discussed,” Wiese said.

Ward told Wiese, “It's not your job to lead this board. It's your job to work with us. You presenting those bylaws already drafted and crossed out, is you making the action to take and going, ‘I want your rubber stamp of approval on these.' There's been zero discussion about it and nobody on this board, that I'm aware of, put forth anything to modify on the bylaws.”

Kalkowski suggested a legal team review bylaws. Guinan said a process could be set up to establish a committee to review the bylaws or the board, as a whole, could review current bylaws and make suggestions.

Later in the meeting, Smith asked Wiese when he secured legal services from McGrath North regarding a personnel issue. 

Wiese was unsure of the exact date. 

“You understand where our concerns are coming from,” Ward said. “That's what prompted ‘Where did this committee get established.' If we have good record-retention policies here - and we should have - we should have a record of that. If we don't have a record, it didn't happen.”

Ward asked how many attorneys have been hired by the board. Wiese said he's used McGrath North, Brent Kelly and Governmental Law, LLC.

Taylor asked who McGrath North repreresented, NCDHD, the board, or individual board member Celine Mlady and Wiese.

Wiese said he signed a contract with McGrath North for human resource legal purposes.

“Was there a personnel issue at the time you signed this letter of agreement?” Smith asked.

Yes, according to Wiese.

Guinan suggested the board enter executive session to talk about individual personnel matters or legal matters. The board spent approximately an hour in executive session.

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