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Wednesday, January 14, 2009

Council Hears City Manager Report on Grand Jury's Findings into the DFD

City Manager Strongly Differs with Aaronson on Substance and Tone of Findings

The Davis City Council very late on Tuesday night and early on Wednesday morning finally got to ask key questions of investigator Bob Aaronson who was charged with the duty of conducting an independent investigation into a series of findings by the Yolo County Grand Jury that was released in June.

The city led by City Manager Bill Emlen and City Attorney Harriet Steiner came to the basic conclusion that they would potentially face liability if they allowed the elected Davis City Council to read the full report. This was borne out by implications from the Union President Bobby Wiest that the employees had an expectation of confidentiality (apparently even from the city council) and that efforts to release the full report even in closed session to the City Council would be met with a lawsuit.

That decision, which Bob Aaronson disagreed with in a nuanced way upon questioning, meant that the city council was left reading a redacted report and the public was left to read only the City Manager's summary of the issue. As we learned, the City Manager and the investigator had somewhat different interpretations of the facts.

As Mr. Aaronson put it at the onset:
"Bill is sort of a glass half full sort of guy when it comes to city operations, it’s my impression, and I tend to a glass half empty sort of guy."
It was City Attorney Harriet Steiner's view that the city council was not entitled to see the full report as it was a personnel document. The city council's job is to review the performance of the city manager and the city manager has the primary responsibility of hiring and firing personnel.

Emlen told the council that he did not see any further formal role for the council to play in this matter after they received this report. He also would not, upon questioning from Councilmember Heystek, rule out taking further personnel action.
“At this point, I would defer from answering that question.”
The question of confidentiality has long been a key, despite the general recognition it seems that the Fire Department is well aware of who spoke to Emlen and what they told him.

Mr. Aaronson was asked the degree to which employees were promised confidentiality. His response was that he laid out the process for them exactly how he saw this playing out. About 30 percent of the people who were interviewed by Mr. Aaronson had a concern about confidentiality—they were primarily concerned with retaliation.
“I tried to assure them that their identities and the specific things that they said connected with their identities would not go in a final report.”
He said further,
“I explained to them that I could not guarantee whether or not the interviews would be confidential. But that I would make every effort from my perspective to make sure that no one’s identity connected with negative information was going to be revealed.”
Union President Bobby Wiest disagreed stating that the employees believed that this was a confidential process and he strongly suggested that any effort to release the full report even to the council would be viewed with an invocation of the Firefighters Bill of Rights (which he characterized as similar to the counterpart document with the police officers) and hinted strongly that the city would face a lawsuit.

Bill Emlen suggested that the only names and identities revealed in the report were the same ones revealed in the original grand jury report.

The matter of confidentiality however only matters if there is a need for the council to see the full report. A three to two majority on the council in December voted not to see the full report. And that view held on Wednesday morning despite evidence that became clear there was a strong difference of opinion between Mr. Emlen and Mr. Aaronson on the tone of the findings.

Councilmember asked when Aaronson viewed the redacted the report—it was after the council reviewed the redacted report. Aaronson said that he had no involvement in the preparation of the redacted report.

So the question really boiled down to what the differences in the report were. Councilmember Stephen Souza got at this point with his opening question asking for Mr. Aaronson to characterize the differences in the "essence" of his report from the city manager's summary.
“I think there are three bases for what I perceive as the differences between my report and the city manager’s summary of my report. The first one is a simple difference, if you reduce a library’s volume by 70 to 80 books it contains, it’s still a library but it’s a different library. When you take information out, it’s hard for there not to be a loss. So there are nuances there are statements and contexts that to me were important that were taken out for the sake of brevity.

The second issue which is also unavoidable—from my perspective the components of my report that touch on personnel matters were essential. Some of them I think go directly to the heart of the more consequential issues. So to eliminate them by its nature changes what the report is.

And then the third thing is, and it’s my impression, Bill is sort of a glass half full sort of guy when it comes to city operations, it’s my impression, and I tend to a glass half empty sort of guy. Those are the ways that I try to articulate how I see there are some differences.”
Bill Emlen and Bob Aaronson upon a question from Don Saylor described very different “most consequential” issues identified in this report. Mr. Emlen said he was very concerned about the public perception of the sleeping at the first station issue, off duty activities, and promotional process issues. Each one he couched in terms that mitigated the severity of the findings—suggesting that he was relieved.
“Overall I’d have to say that the fact that we were able to get more information and get clarity on what the grand jury had indicated on some of these factual areas was also useful. I think it was important for the public to know those things.”
Mr. Aaronson identified three significant issues: favoritism/ retaliation, promotional process, and leadership style.

Mr. Saylor quotes from page four of the report:
“There’s no proof or incidence of retaliation or a hostile work environment.”
Mr. Aaronson responds:
“What my report states is that other than the promotional process which I investigated, and members of the department felt there was favoritism reflected in that, other than that, I did not go and investigate the incidents that were presented to me by employees claiming that it was retaliation or favoritism.”
Why did he not investigate these claims? Primarily time considerations and money dictated the decision here.
“My report might have been more accurate if I intimated that I might have heard a dozen or a dozen and a half individual incidents where people described to me a circumstance that they ascribed favoritism or retaliation.”
Mr. Saylor continues:
“City Manager, your report says there is no proof or incidence of retaliation or hostile work environment is that an accurate assessment?”
Mr. Emlen:
“We have no specific proof, obviously there are folks who have perspectives that were related to Bob, describing potential situations but there’s no hard evidence and to get there would take a long time and we may be no farther in the end.”
This is a key and illuminating exchange. In essence, what the City Manager asserts in his report is deceptive. He suggests there is no proof, but that is really because he does not seek out proof rather than him seeking out proof but not finding any.

Indeed this is not the only instance where this comes up, with regard to political activities:
"The Grand Jury Report suggested potentially inappropriate political activities and donations made by firefighters and the union. Firefighters, as members of a union, have an absolute constitutional right to participate in activities and provide donations, provided they do not do so on City time or as official representatives of the City. The report finds no instances of wrongdoing..."
Apparently Mr. Emlen's words: "no instances of wrongdoing" does not mean exoneration, only that Mr. Aaronson lacked the time and resources to investigate these claims further.

This is extremely misleading to the public.

At another point, Mr. Emlen suggested that the number of employees with various grievances about the department was very small. A side discussion erupted on the meaning of the term grievance, but that missed the bigger point that the small number aggrieved was actually about 20% according to Mr. Emlen which is not a small number, in fact it is quite high.

Furthermore, the issue of frequency of the drinking issue came up. Mr. Emlen suggested it was infrequent and coincided around parties and celebrations. Chief Rose Conroy and Bobby Wiest also suggested it was very few, that the practice has been stopped, and it was done for a safety concern.

However, Mr. Aaronson suggested that the number was something like half a dozen to a dozen times per year often occurring with multiple members of the department.

Frankly this issue was never as concerning to me as the issue of work environment, promotions, and political activities. While it is inappropriate to use city facilities for this purpose, it is preferable to some alternatives such as firefighters driving while drunk endangering themselves and the public.

Both Mr. Wiest and Chief Conroy spoke at length. Chief Conroy flatly denied the allegations except for a single incident of "badging."

The council majority--all of whom were endorsed by the fire fighters and received large amounts of money for their most recent campaigns--took the view that Mr. Emlen did. The most important finding was that the operations of the department are exemplary.

As the report reads:
"Perhaps the single largest unaddressed area is the quality of service DFD provides to the city of Davis and its residents and visitors. The Davis Fire Department receives very, very high customer satisfaction results from community surveys. Our firefighters are skilled, experienced and welltrained. Their equipment and facilities are meticulously maintained. As well, Chief Conroy and the firefighters’ union have been increasingly successful in building a partnership unusual in the fire service, to the extent that the Davis Fire Department has become a model for fire service organizations regionally and nationally."
To their credit, both Councilmembers Greenwald and Heystek took opposing viewpoints on the report, although they did concur with their colleagues about the high quality of service.

From my perspective the problems I had with the process have if anything been confirmed by the report and presentation. It is clear that Mr. Emlen did have a "glass half full" perspective that led him to downplay major findings and even distort the extent to which the process may have exonerated the department.

Moreover there is a larger unanswered question and it Sue Greenwald brought it up a bit when she asked if the council's only recourse was to fire Bill Emlen.

At one point, Councilmember Heystek asked the City Manager if this problem was a known flashpoint, why it wasn't dealt with sooner. His answer was that they had just become aware of this through the process. But Chief Conroy hadn't. She knew all along and did nothing to alleviate a problem that was a flashpoint.

With the union hours bank, she claimed the usage was tracked but not recorded. However, that is generally what it means to track them--record them so that others may oversee their usage.

There are countless examples of processes and practices where good accountability practices are simply not followed by the Fire Chief and they appear to have directly led to the problems that have arisen here.

At some point, however, this responsiblity falls onto Bill Emlen's shoulders as the City Manager. For me the remaining question is what did Bill Emlen know about these problems and when did he know them? Neither answer is good actually. If he knew about them in advance, then it is a problem because he did not act. If he did know about them until this report and the Grand Jury report, the question should focus on why not?

What is clear is that this issue is over with from the public's perspective. No one on the council seemed interested in pushing the matter past this week and no one seems that interested in further pursuing it--either because they do not support doing so or there are not the votes to do so.

In the end, the people of Davis can be assured that the fire department does its job well, but also yields tremendous influence on city policies as it consumes a larger and larger portion of the city's payroll and general fund.

---David M. Greenwald reporting