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Wednesday, June 20, 2007


“Fait accompli,” were the words I used to close my remarks in yesterday’s column to describe the prospects for the proposed changes to the Anti-discrimination Ordinance that would have removed a key passage that empowered the Human Relations Commission to investigate and mediate complaints regarding allegations of discrimination. All went according to plan until about two-thirds of the way through deliberations when one of the members of the subcommittee recommending the changes to the ordinance, Councilmember Stephen Souza, suddenly and unexpectedly moved that there be no changes to the ordinance. The result was a 5-0 vote to make no changes to the ordinance and to basically restore the duties that the Human Relations Commission had previously performed up until June 27, 2006 when the council voted to disband the commission.

Perhaps the most stunning part of the evening was the way that we got to this point, the effectiveness of public testimony, and vigilance on the part of Councilmember Lamar Heystek and Mayor Sue Greenwald in somehow, some way, forcing the council majority to back off. Even more stunning was how woefully unprepared Councilmember Souza and several city staffers were about this meeting and how little either council or staff knew about the actual history of the Commission. This was particularly surprising given the fact that Councilmember Souza was himself a former chair of the Commission.

Assistant City Manager Kelly Stachowicz’s remark actually set the tone for much of the discussion:
“That particular resolution, one of the things that it did was attempted to remove the responsibility from the Human Relations Commission to investigate individual grievances with the intent of attempting to adjudicate them primarily because that particular responsibility is problematic in a public commission…”
Stachowicz specifically referred to the Commission's lack of subpoena power and lack of ability to get all information as a reason to strip its power to investigate and mediate. As we shall see, the interpretation of this language would prove key in the ultimate decision to restore the Commission with this power.

The first of many twists of this night came when Souza suddenly announced that they had changed their proposal, which first sought to delete the authorizing section from the ordinance and instead would edit it to shift the power from the HRC to the city and city manager.
“Section 7A-15(c) which is civil remedies under the anti-discrimination ordinance, speaks to a specific commission as the entity that would mediate and investigate, what we have done is change that language to not be specific and allow for the evolving nature of the city’s mediation ability and programs over time.”
Souza spoke of replacing the power of the HRC with that of existing organizations. The argument that he used was that the city now possesses resources that it did not have at its disposal in 1986 such as the mediation and fair housing program, the police advisory committee, the ombudsman, the personnel board, and the human resources department. He argued that only one of them has subpoena power, the personnel board. In order to do a proper investigation, a body must be able to compel individuals to come forward to testify, only the personnel board has that power, not the HRC, he stated.

Councilmember Lamar Heystek took strong disagreement with both the process by which this was brought forward and some of the specific proposals.
Councilmember Heystek pointedly asked: “We received this amendment to the ordinance shortly before 6:30, why was this not included in our council packet when it was delivered to our homes?”

Souza responded: “Because we prepared it a half hour before the meeting. We thought about it over the weekend, and me and Ruth discussed it, then we came and met with Kelly [Stachowicz] at 5:30 and proposed the language that you see before you.”

Heystek continued to press his point: “I certainly appreciate that you’ve done that, but I question whether or not we’ve given people, even here, who wish to speak who were not prepared for these changes, and perhaps people at home who haven’t had these changes presented to them, I think the council should be very eager to take public comment tonight, but I question whether or not we should take action tonight.”
He also questioned the relevance of the personnel board as an investigative body for civil rights complaints.
Souza responded: “It’s the appropriate body where individuals in the city lodge complaints against individuals in the city”

City Attorney Harriet Steiner had to step in here: “The personnel board is there so that if there is a personnel action against a city employee, if there is a complaint against a city employee… that is the hearing body on whether the employee should appropriately be disciplined for their conduct. That board is set up as an adjudicatory board, but that board is not a board where people come in and lodge a complaint against a city employee…”

Heystek: “That was my understanding of the role of the personnel board, so I will ask the subcommittee what relevance does the personnel board have to what we are dealing with tonight, changes to this civil rights ordinance, why do you bring up the personnel board if it is not otherwise a body that is open to the public?”

Souza: “If there is a discrimination complaint against an individual in the city from an employee of the city, that would be the vehicle that they use to adjudicate the issue.”
Souza also admitted in response to a question from Heystek that he had only read the minutes of the deliberations on the original ordinance from 1986 “this evening.” This appears to be another inexplicable example of Mr. Souza, who had a full nine months to prepare from the time this issue was first raised and a good four or five months since the issue was given back to the council the subcommittee. Why would he only read the minutes of the meeting on the evening of the council action, rather than as a member of the subcommittee as they deliberated on this issue presumably over the prior nine months? This seems inexplicable and utterly contemptible.

Asmundson seemed to attempt to justify this glaring oversight by suggesting:
“The 1986 minutes really doesn’t show us anything, it’s just the action it showed in the minutes, there was no discussion, and we couldn’t find any discussion on that motion.”

Heystek responded, “I respectfully disagree with you on that point.”
Also present at last night’s council meeting were members of the public who played a key role in this as well, with six members speaking, each one of them speaking strongly against the proposed changes to the ordinance.

Michelle Stephens, a current member of the HRC spoke for her out of town colleague Shelly Bailes first. “She was there when the anti-discrimination ordinance was written, and she is opposed to any changes.” And then Ms. Stephens spoke for herself:
“Changing this document would be a mistake, for over 20 years this anti-discrimination ordinance has served our community well, providing proof that the city of Davis is committed to human rights… We should not allow something that has shaped our city to be re-written so easily. Changing the ordinance will also effectively make the Human Relations Commission, a party-planning group…” “There is no such thing as having too many opportunities for citizens to voice their concerns.”
Dean Johanson, spoke on behalf of the Yolo County ACLU. He voiced the ACLU’s “opposition to any change in the ordinance as it stands now.” Furthermore, “as an individual who has in the past used the Human Relations Commission, I do think that what you are calling, ‘evolving,’ is actually de-evolution, you’re actually going back in time by making these changes.”

I also spoke on the need to keep to a mechanism that is free of court action that would enforce the anti-discrimination ordinance. Cecilia Escamilla Greenwald, my wife, and former chair of the Commission, spoke about some of the cases that the HRC actually dealt with and their role in bringing about changes in the school district’s climate policy, the city hate crimes, and other programs that dealt with civil rights.

Former HRC Chair Bill Ritter,
“In the nine years I served, this was an important task of the Commission, it was important because it gave teeth to the anti-discrimination ordinance, an avenue by which citizens could come and work out their problems as they perceived them.”
Mr. Ritter pointed out that the mediations services have always been a part of the process. In one case, the city manager, followed up with a private investigator to follow-up on the research that the commission had done.

Former HRC Chair, Tansey Thomas, also spoke out against the changes she cited a number of reports and recommendations that were not followed through upon.

Councilmember Heystek pressed City Manager Bill Emlen as to where he would be providing referrals to investigate or mediate the complaint of individuals. Emlen in fact had no idea and dodged Heystek’s question twice. First, stating it would depend on the nature of the complaint. And second stating, “I think they’ve been mentioned this evening the various options that are available.” Both of these were essentially dodges and non-answers.

Councilmember Souza then asked several key questions of City Attorney Harriet Steiner.
Souza: “Do we have to do anything in order to keep the ordinance legal in its intent and the resolution in the Human Relations Commission? Can we leave it as it is?”

Steiner: “I think we probably could leave it as it is.”

Souza: “Does any city commission, in particular the Human Relations Commission, have the ability under law to investigate?”

Steiner: “None of our commissions would actually provide what lawyers think of as a non-biased investigation, none of the commissions with the possible exception of the personnel board that we talked about before, really are set up to do an equivalent to what the courts do. Many of our commissions listen to the citizens, provide forums for issues, and come to a policy recommendation to the city council with an appropriate recommendation…”
This is actually a key statement because Steiner is speaking in terms of how lawyers think about the term, “investigation,” rather than other possible definitions of the word. It was Mayor Greenwald who demonstrated from the text of the ordinance that the intent was never to “adjudicate” and always referred to a much less formal mechanism of mediation and investigation. The ordinance specifically states that the findings are not admissible in court, implying strongly that the HRC was not to be a body that investigates in the manner in which Steiner speaks of the term “investigate.”

Greenwald pointed out that the council was not provided a copy of the actual ordinance.
Mayor Greenwald's reading of the ordinance was: “yes the Commission can investigate and mediate, but it would not provide material for action.”

Harriet stated that it says, “the findings and conclusions are not admissible in court for a civil action.”

Greenwald: “Investigation and mediation does not have only one definition.”

Harriet: “That’s what I was trying to say. There are different kinds of investigation and different kinds of proceedings. An investigation to come forward to have a community forum is a different kind of investigation than an investigation to try to adjudicate an individual complaint against another individual against a city employee.”

Harriet: “I don’t know that the Human Relations Commission has ever been in a position where it has taken an individual complaint and tried to come up with the answer as to what should happen on that particular complaint as opposed to a larger issue and what the community should do...”
The discussion seemed to turn on the term, “adjudicate.” The perception of the council seemed to be that the ordinance authorized the HRC to adjudicate a complaint, when in fact the language of the ordinance precluded such action and it had never been the practice of the HRC to adjudicate. It was Mayor Greenwald’s teasing out the term that led to this clarification and seemed to change the course of the meeting.

During this discussion, Mayor Pro Tem Asmundson and Councilmember Stephen Souza were conferencing. Suddenly, Asmundson stated that there was an announcement from the subcommittee.
Souza stated: “I would suggest, given the first answer to the question about whether we could just leave the ordinance as is, that I would move that we leave the ordinance as is, and that we direct the liaison to the Human Relations Commission to explain the other avenues that are available and clarify the meaning, and provide the information as to the avenues that are available for mediation and complaints.”
There was an air of disbelief, as it appeared briefly that the council minority could not believe what they had just heard and sitting in the audience, I had the same feeling. It was quite stunning given the direction of the conversation up until the last few moments.

Heystek quickly regained the initiative at this point however, and pressured the council to reconcile between the language of the ordinance and the language of the authorizing resolution of the HRC. He pointed out that in the future, councilmembers would not be reading the motions made on this date, but rather the language in the resolution. He spoke forcefully and ultimately prevailed in getting the subcommittee to re-write the resolution to include some of the language of the ordinance to make it clear that they had the ability to mediate and investigate, but not adjudicate (again a power that the Commission never had to begin with).

By a 5-0 vote, the city council not only left unchanged the historic anti-discrimination ordinance, but also appeared, and I stress appeared, since there will have to be another item on this in the future, to restore the previous power of the Human Relations Commission to what it had been prior to its being disbanded in June of last year.

This was the most stunned I have ever been at a council verdict and in many ways I still am not clear as to what happened. It appeared that public comment moved the council. It appeared even prior to the meeting, that perhaps criticism of the initial proposal, perhaps from this blog, moved the council to use stronger wording. And it appeared that the discussion brought up by Mayor Greenwald with regards to the issue of adjudication probably provided the final death knell.

Souza justified it by the answer that Harriet Steiner gave to his first question, but in fact he asked four questions and it appeared by the fourth question that he was simply lining it up for his eventual victory asking her about the role of adjudication and whether the ordinance itself was proper. Steiner’s response was that she was always uncomfortable with the language of the ordinance. The fourth question was about police oversight, a question and answer that were discussed at length last year and that Souza fully knew the answer to.

Thus my only conclusion is that somewhere during the course of that discussion, the issue of definition of investigation arose and the issue of adjudication made it clear that the ordinance never intended to authorize nor did the Commission ever act as a body that adjudicates individual complaints.

I will point out that people last year charged that the HRC was trying to become a de-facto civilian review board for police complaints, but that is not true. What the HRC was doing was taking individual complaints and attempting to advocate a general policy—the construction of a civilian review board. The council rejected that proposal, but that was the HRC’s intent, not to adjudicate the Buzayan case or any of the other individual cases. Those cases were only used to provide examples for a policy change.

It is very important to note that the HRC was never granted the power of subpoena nor did they ever seek to use the subpoena power. The charge was made that the commission overstepped their bounds and misused their power, but as we saw last night, it has be acknowledged that is simply untrue given that they never attempted to adjudicate individual cases. We can disagree on the forcefulness with which the commission conducted its business, but that alone does not mean that the commission was not outside of its charge.

In the end, the council did the right thing last night, but one must severely question several aspects of the proceedings. First, the late change of text for the ordinance butts up against a violation of the Brown Act which requires a period of proper noticing to the public. That change caught all involved off-guard. Second, the lack of preparation on the part of the subcommittee was irresponsible. Souza’s question of Steiner could have taken place in private and having her opinion that there was no conflict could have mitigated against this discussion. Third, the lack of staff providing of resources including the ordinance is appalling. Fourth, Souza’s admission that he had only read the minutes of the 1986 discussion last night, prior to the meeting, was not only appalling, but disrespectful to the work of past councils. Finally, this entire discussion embodies a sort of lack of preparation and lack of professionalism. It was clear from the discussion that neither the council nor staff really understood the history of the Commission or how they have operated in the past.

This is not surprising in light of the controversy that happened last year that in my opinion, as a very biased observer, was greatly distorted in the public realm. That is not to suggest that the Commission acted without error that is far from the case, however, their intents and their actions were greatly distorted in the heat of a political campaign and the heat of public scrutiny.

In Cecilia Escamilla Greenwald’s closing comments during her public remarks, she asked the council
“to take this historic anti-discrimination ordinance and instead of stripping it of its protections, to move in the other direction to make it stronger. I ask you to take these fractured ties in this community and bring us together. I ask you to lift up those who have suffered in this past year from hopelessness and despair and give them hope and guidance that the City of Davis will not turn its back on its commitment to civil rights.”
In many ways, a year removed from the controversy, when things could be treated with reflection rather than with impulse, they have done exactly that. The question though is really whether it is too late. The results last night stunned us all, but they also served to reinvigorate us. It was the first time in a long time that we had any sense of optimism, accomplishment and hope.

---Doug Paul Davis reporting