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Monday, April 23, 2007

City Passes Tough New Conflict of Interest Disclosure Requirements Leading to the Resignation of Commissioners

The Davis Enterprise and reporter Claire St. John reported in Sunday's paper that three members of the Business and Economic Development Commission (BEDC) had resigned over the extension of article two disclosure rules to their commission--the most stringent of filing requirements for financial conflicts of interest. These resignations have left the BEDC without a quorum meaning it cannot meet until new members are named.

During the long discussion last Tuesday that ultimately led to a 5-0 vote supporting the changes, members of the council fretted that this would have a chilling effect on the willingness of individuals to volunteer to serve on commissions.

Councilmember Stephen Souza said,
“I concur, I think full disclosure may actually hurt recruiting”
Councilmember Don Saylor warned,
“I don’t think that this is going to be without a cost. I think there is a high likelihood that some members of our community will choose not to participate in commission appointments simply because of their concern about revealing information and what the information will, how it might be used. Those of us in government, we’re used to it and we understand it. Those of who are not, may not be used to it, and it may be a chilling factor.”
The Davis Enterprise reported yesterday that three members of BEDC resigned: Dick Dorf, Dennis Lindsay and Larry Dicke. They all cited the fact that the new rules were too stringent and personally intrusive.

Dennis Lindsay, the CFO for Nugget markets and a longtime fundraiser for Councilmember Don Saylor told the Davis Enterprise:
"I wasn't making any big statement, I'm not making a fuss, I just don't want to do it... They already know where I work; they don't need to know what I make here."
Dick Dorf who also serves as a columnist for the Davis Enterprise and is a long-time supporter of establishment politics told the Enterprise:
"They changed the commission for me. I'm quite willing to disclose, and I've done so, but I chose to be on a commission in a purely recommending role. I didn't intend to be the decider."
And that was one of the key aspects of the debate--the degree to which the commission was merely a policy making body rather than merely an advisory body. It was City Clerk Margaret Roberts who made it clear from council history that the council often would approve BEDC recommendations which would make the commission, de facto, a policy-making body rather than merely an advisory body.

As Roberts pointed out:
"Basically what that means is if the City Council regularly rubber-stamps recommendations, they are considered the decision-making body. Since 2005, that's basically what the City Council has done for BEDC. They make recommendations that are consistently approved by their body for businesses.”
Mayor Pro Tem Ruth Asmundson was deeply offended by this implication. Asmundson exclaimed:
“I don't think we rubber-stamp items that are brought to us for discussion—we have discussed it. I don't want to be called a rubber-stamper. I hate that word. If I approve it, I look at it, I approve it. I don’t rubber-stamp it. I look at it very carefully. I wish that staff would stop saying rubber-stamp.”
The words here do not convey the full passion she said this with. It is clear watching the meeting that she said this angrily, she scowled, and she slammed her fist down forcefully as she said the last sentence. To the point that City Attorney Harriet Steiner, who was taken aback, first laughed and then promised not to use the term anymore. This was reminiscent of the umbrage from which she took the term "surrogate" in a previous meeting.

Bill Emlen explained the thinking on the part of the city staff:
"The BEDC and there are maybe other commissions as well, really when you look at BEDC for example, they are dealing with decisions that are coming to the community in various ways. Obviously I think it is appropriate to have disclosure of folks who are on the BEDC in terms of their investments that may influence potentially their decisions or could and at leas the public should know whether that situation is occurring or not. So that is what the other factor that I looked at when I looked at ultimately deciding whether or not this recommendation should come forward that it has. That is really part of the reason that we did that. I'd say it is fair game to look at some of the other commissions as well, I think we are getting to the point where as Harriet mentioned, where I think this is broadening. I would rather err on the side of full disclosure than less."
Don Saylor would end up stating that he had some concerns about the chilling effect this might have on future volunteer applications, but he trusted city staff on this issue. Or at least trusted them enough to support the main motion and make two substitute motions that would threaten to undermine the main motion somewhat. The third motion was that they would re-examine the issue in a year. This prompted a brief but angry exchange with Mayor Sue Greenwald who accused Saylor of trying to dilute the power of full disclosure. Saylor retorted that she was reading things into his motion that he had not stated.

Saylor also pressed for the full-reporting requirements for all commissions and to have staff bring back a report on doing so. This despite by City Clerk Roberts that the FPPC had explicitly warned against overreporting requirements and in fact even including BEDC moved it into a gray area.

Mayor Sue Greenwald took a strong disagreement on the idea of all commission fully reporting:
I think it is absolutely critical that the business and economic development commission report. I mean they are making major decisions that could easily be affected by their economic holdings. I think it is really obscuring the issue to say that bicycle commission is at the same level. I’m afraid it might doom reporting by making it too burdensome. I think it doesn’t make sense. I’m willing to accept staff’s judgment on the commissions that do. It’s not because of some technical aspect of rubber stamping commissions. It’s along the lines of fundamental principles that some commissions deal with issues in which economic interest is affected such as commissions or committees that deal with growth decisions, and deal with business and economic development decisions. I think that we are trivializing it to say it should apply to the senior commission or the bicycle commission. And I do think this puts an undo burden on our citizens. I don’t think the reasoning is cogent and I think it will doom full reporting and full disclosure. And it is at odds with what the FPPC is asking us to do.

As many who read this blog regularly know, I am a strong proponent of open and transparent government. I believe strongly in full disclosure of financial interests by people who choose to serve as volunteers on commissions. The only way for us to ensure that these commissioners are acting in the public interest and not in their own personal interest is to have this kind of disclosure requirements.

There a couple of key points that I want make here.

First, as Councilmember Lamar Heystek pointed out, someone like him would not have to make many statements of disclosure since he owns no property and has no investments. The people who would have to make lengthy and cumbersome investments are those who own large amounts of property and have many investments. In other words, exactly the type of people for whom we ought to know what their financial interests are before they make decisions and even recommendations on matters of economic and business import that the city deals with.

That leads me to my second point and that is that the issue of rubber stamping, perhaps was unfortunately named to be caste in some sort of negative or even pejorative light that force Mayor Pro Tem Asmundson to become overly defensive (doth she protest too much?). However, there are many recommendations that many commissions make that the Council ends up approving.

What has become lost here is that even if the Council is making modifications to the proposals, the commissions play the role of gatekeeper by deciding which proposals to bring forward to the council and which ones they would not. Furthermore, it is clear in many cases that the council may never have acted upon these recommendations at all without the work and effort by the commission and by that mere fact alone the commission takes on more than a merely advisory role.

The mere fact that the council deliberates on recommendations, does not negate the power and influence of a commission and does not negate the fact that a commissioner has the power to persuade a councilmember to take a prescribed action. What the disclosure process ought to do is to let the council and public know when a commission is acting in an area that may advance the private interests of one of its members--even if the member is not a "decider" in the full sense of the word.

That leads me to my final point which is in direct response to the resignations. In some senses, I suppose these resignations are unfortunate. It does however seem odd that three members would suddenly decide to resign if they were not trying to make some sort of a big statement. This seems to be a decision that would affect only a small number of people who would have to disclose large amounts of seemingly personal information. Those affected as I stated earlier would look more like Dick Dorf and less like Lamar Heystek.

Dorf's statement is particularly puzzling in addition to being overly dramatic as he exclaimed, "I didn't intend to be the decider." In fact these disclosure requirements made absolutely no change in his role on the commission. As Ms. Roberts pointed out, since 2005 the City Council has basically rubber-stamped [some of] the decisions of the BEDC. Did Mr. Dorf complain when the council adopted the BEDC's recommendations in the past? So his stated reasons for resigning makes no sense.

Still without overly impugning the motives of these commissioners, I wonder really what these guys have to hide. I think our government is stronger when all the cards are on the table and we can operate from a standpoint of full information.

At the end of the day, I must commend the work of city staff on this issue--Margaret Roberts, Harriet Steiner, and Bill Emlen. I think they did good work in pushing these needed changes through and our city will be better for it. I hope that commissioners and future applicants to these commissions will recognize both the value of commission work and also recognize the importance of full disclosure laws. These laws serve to protect both the public and themselves from undo scrutiny.

---Doug Paul Davis reporting