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Friday, June 22, 2007

Commentary: Subcomittee and Staff Look Ill-prepared in Anti-Discrimination Ordinance Deliberations

In many ways this was entirely of their own doing. In April, Councilmember Lamar Heystek pulled a consent agenda item off the consent calendar and moved to allow city staff rather than the city commissions subcommittee of Stephen Souza and Ruth Asmundson look into changes in the anti-discrimination ordinance. At the time, we reported that Councilmember Heystek respectfully but firmly pointed out to the subcommittee that they lacked legal training and moreover they had originally missed the provision. Councilmember Souza's defense was that they were not even aware of the provision in the anti-discrimination ordinance that authorized the HRC to "investigate" and "mediate" charges of discrimination. Heystek responded that proved his point--the council subcommittee had not done their homework and that he lacked confidence in their ability to handle such an important and complex task. Nevertheless, the council voted 3-2 with Heystek joined by Mayor Greenwald in dissent, to authorize the subcommittee to look at the anti-discrimination ordinance.

This criticism would come forth again on Tuesday as the Council subcommittee would come forward with their recommendation first to delete the provision and then to alter it. Without Councilmember Heystek's work, the council would have never been aware of this flaw to begin with as in October of last year, when the council was re-writing the authorizing ordinances and resolutions for all the commissions, neither Souza nor Asmundson had read through the anti-discrimination ordinance. As it turns out, they had not read it in June of 2006 when they shut down the HRC for doing what in retrospect was their job.

In addition to simply not knowing the provision within the anti-discrimination ordinance, there were several other appalling aspects of the subcommittee's work as presented on Tuesday evening. First, somehow between October when the issue first arose and June, and between April when the subcommittee was authorized to look at this question and June, no one asked the city attorney her opinion as to whether the city had to change to ordinance to make it consistent with the resolution. It was her opinion that they did not have to change the ordinance that led Councilmember Souza to withdraw his recommendation for making changes to the ordinance. How could that question not have arisen until there was a public recommendation?

Second, Councilmember Souza and Asmundson made the original recommendation in the council agenda:
“The subcommittee recommends that Section 7A-15(c) of the city’s Anti-discrimination Ordinance should be deleted.”
However, at the meeting it turns out they altered that recommendation without any sort of notice to the public or their colleagues. Instead of deleting that section, they altered it, substituting the HRC for the "city" and "city manager." This change was literally made at 5:30 on Tuesday evening.

Third, Councilmember Souza and Asmundson admitted that they had not read the minutes from the 1986 original deliberations until 6:00 Tuesday evening. In fact, the only reason they saw these minutes at all were that Councilmember Heystek requested of Kelly Stachowicz all the records from the 1986 proceedings and then all the councilmembers received copies of those proceedings. Asmundson claimed that there was no information in them that was useful, but this is simply not true. First, the council voted by a 4-1 margin to approve it. The one dissenting vote was Councilmember Jerry Adler. Mr. Adler at that time made a string of legalistic motions to alter various parts of the ordinance that he thought were problematic. He did not raise one objection however to the section in question. Second, the minutes also contained a list of citizens who at the time spoke in favor of the ordinance, citizens who are still in the community now and are in fact allies of the council majority. It is in fact a veritable "who's who" list of Davis residents.

Fourth, it was not clear from the deliberations that either council or staff understood the wording in the ordinance. It was only when Mayor Greenwald pointed out that the ordinance itself contained the key provision that precluded any findings of the commission's investigation and mediation from being admissible in a court of law, that Harriet Steiner acknowledged that there were in fact distinctions between the legal definition of "investigate" and "mediate" and a more general and common language usage.

The language reads:
"The findings and conclusions of the commission issued in response to such proceedings shall not be admissible in a civil action."
This section in fact indicates and clarifies that when the ordinance speaks of investigate, it does not mean a legal investigation that would have subpoena and more importantly, "adjudicatory" power. Rather, it was meant to be a more informal means of findings out facts and making recommendations to the actual body with legislative authority, the city council.

Fifth, following from this, it was clear that neither staff nor council really understood the history of the commission or its functions. This is especially appalling given that Councilmember Souza was a longtime member and in fact chaired this commission. Bill Ritter, a former chair, told the council that city had a times hired independent investigators to follow up more formally on HRC findings. In fact, as the three former chairs sitting in the audience pointed out, the HRC never had, used, or sought adjudicatory power. The council apparently had little understanding of what the HRC did or how it operated.

This is not surprising in light of the dispute last year, that in my opinion, was largely distorted and blown out of proportions. The council depicted an HRC out of control and bent on subverting the will of council. In fact, what happened was that as a series of complaints against the Davis police arose, the HRC had public meetings to determine the nature of the complaints against the police. They appointed a subcommittee to investigate those complaints led by Jann Murray-Garcia. That subcommittee released their report in February, but by that time the council had already gone another direction in terms how to approach the problem and opted for an Ombudsman rather than Civilian Oversight. The HRC, never took up the issue again formally, although some of their members were involved in pubic protests over the handling of the Buzayan and other cases. None of these actions overstepped the bounds of commission. The council had every right to do as they did and go a different direction, though the tone of the meetings and Councilmember Puntillo's denouncement of their work as "not worth the paper it was written on" was decidedly unprofessional and in poor taste.

Nevertheless, one must in the end question this particular subcommittee, which has seemed to not only fail to perform their duties in an adequate and timely manner with regards to the HRC, but it also badly blundered with another recommendation that in the end they had to withdraw--the recommendation to merge the Senior Citizens Commission with the Social Services commission. (For an overview of that process click here and also here.

The basic facts here are surprisingly similar, but play out over a longer time frame than the anti-discrimination ordinance. The subcommittee issued their initial recommendations for the merger in a consent agenda item and it was only because Councilmember Heystek asked for the item to be brought back later that we discovered that there was a full blown resolution for the merger of the two commissions. Souza would later claim this was brought forward for discussion, but it was not. It was a full blown resolution with a recommendation for merger and it was in a consent agenda item that would not be discussed unless someone pulled it.

When objections to the merger arose, Souza took it to each of the commissions, the Social Services Commission approved it, but the Senior Citizens Commission refused and in fact made a very public complaint about it. At one point, Mr. Souza in fact, berated and attempted to browbeat the chair of that commission, Elaine Roberts Musser, and the rest of the commission, but they would not back down. After a series of very public hearings, included a devastating speech by the chair before the council (see the you tube video of it here), the council not only backed off but attempted to make it appear as though they had not really intended to do anything more than "raise the issue" for the "purposes of discussion."

The historic record of this however does not bear it out and in the end like the anti-discrimination ordinance, the Senior Citizens Commission prevailed when Souza and Asmundson did a hasty reversal in the middle of the proceedings.

What is also interesting is that in both cases, the subcommittee of Souza and Asmundson did the primary work. Councilmember Don Saylor in neither controversy said a whole lot and in fact he did not make a public assertion of his view on either matter and allowed his colleagues and allies to essentially hang themselves.

There has been some controversy about the amount of work done by subcommittees as opposed to the entire body. I am of two-mindsets on the issue because on the one hand, I prefer public deliberations on staff prepared items. On the other hand, I think much of the preparation work can be done outside of formal meetings. What is clear however is that the council should think twice before assigning Stephen Souza and Ruth Asmundson to work together on a subcommittee. They have made two pretty large miscalculations that have in essence wasted both the council's time as well as the community's time. The amount of work that the Senior Citizens Commission and their chair had to do must have been tremendous. Instead of pushing forward with their duties they were forced to fight for their existence.

This process played out in a rather embarrassing way for both city and staff. Frankly both the subcommittee and the staff should be embarrassed at both their lack of knowledge but more importantly their lack of preparation on this item.

I am very grateful that the council did the right thing in the end on this issue, just as they did on the Senior Citizens Commission merger, but that should not excuse the steps that were taken in the interim and especially the lack of preparation and notification to the public.

---Doug Paul Davis reporting