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Sunday, January 11, 2009

Independent Investigation into Yolo County Grand Jury Report

In June of 2008, the Yolo County Grand Jury issued forth a report, concluding a nearly two-year investigation in the conduct and management of the Davis Fire Department (DFD). Among these included questions about promotional practice, a hostile work environment, the misuse of DFD facilities by inebriated off-duty firefighters, strain in the relationship between the DFD and the Davis Police Department, and finally improper influence of the Davis firefighters' union.

After considerable prodding, the Davis City Manager Bill Emlen asked Bob Aaronson, the City's Ombudsman to conduct an independent investigation into the complaints. Mr. Aaronson turned in this report shortly after Election Day, however it has taken nearly two months for the City to process it.

The City is not providing the public with the full report, instead we have the Staff Report written by City Manager Bill Emlen which excerpts from Mr. Aaronson's report and interjects Mr. Emlen's own analysis and interpretation.

At the outset the most important finding, and one never in question, is that nothing in this report and indeed the Grand Jury allegations is the work product performed by the department in question. Any issues regarding the fire department revolve around somewhat peripheral matters and in the larger scheme are a byproduct of the ongoing policy debate over spending at the city level and maximizing service at a cost-effective manner.
"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."
According to Bill Emlen's accounting of the investigation:
"The investigation identifies several areas that deserve attention. Those are described below, along with actions being taken in response. There are certain personnel related issues identified in the investigation that we will follow-up on and monitor as appropriate."
Here are some of the key findings:
  • Management issues related to Shunning and Favoritism.
Mr. Emlen's words:
"The report suggests that this is plausible, but there is no direct evidence to prove that this has happened."
Mr Aaronson's words:
"There are still a group of employees who could reasonably be described as disgruntled… I found no evidence that either the Chief or the union explicitly directs anyone to be shunned or ostracized. Based on the interviews, any shunning is more a reflection of those employees that have become so polarized that they have become ‘unpleasant’ to deal with, and not as a punishment for being outspoken. To the extent that there is any shunning based strictly on opinions held, there is no evidence that any sort of formally organized conspiracy exists; if people aren’t talking to each other, it’s based on personal preference and not because someone told them not to."
We have no idea from Mr. Emlen's version what Mr. Aaronson said after the word, "disgruntled." It is important to recognize that even Mr. Emlen suggests the finding is "plausible" as in not disproved.
  • Retaliation/Hostile Work Environment.
Mr. Emlen's words:
"Some employees claim they feel that retaliation is possible, but there is no proof or specific incidents uncovered by the investigation. There are no pending complaints or grievances from the Fire Department lodged with the city of Davis regarding retaliation.

Although the investigation is not conclusive in these areas, and we have no indication there will be any negative ramifications to individual employees in the future, the fact that the investigation has taken place warrants additional precautionary measures for all who participated in the process. All major disciplinary actions, including written reprimands, already involve the Human Resource Division. Effective immediately and for the next 12 months, the Fire Department will prepare monthly incident reports to include all disciplinary action beyond verbal comments for review by the Human Resource Division. We will also make it clear to all Fire Department employees that they are free to bring these issues to the attention of the City Managers Office if they wanted to elaborate on any issues raised. It is important to note that this has always been an option, but it is clear that some employees may have been hesitant to do so, given the relative independence that the Fire Department has had from city administrative functions. The fact that they operate in physically separate facilities also contributes this factor. In light of the investigation and the many Fire Department employees who participated, we just feel it is important to reiterate that they are free to bring forward issues without negative ramifications."
We never do get to see any of Mr. Aaronson's report. However, clearly Mr. Emlen felt this was a serious enough possibility to take precautions.
Mr. Aaronson's words:
The Forum for Workplace Disputes Between Captains and Firefighters In the course (of) our discussions about the use of the grievance process, I learned…that the most recent grievances (“several years ago”) brought to the union for resolution with management weren’t even forwarded to management at all. Apparently, only grievances against chief officers are forwarded to management; grievances against a captain by (a) firefighter would be resolved by the union on its own.

In my view, a grievable dispute between a firefighter and her/his supervisor that arises out of their supervisor/subordinate relationship …should be subject to resolution by management. Regardless of his/her status as a union member, a captain supervising a crew member is employing a manager’s powers delegated to her/him by the department head; if the captain has overstepped, erred or otherwise offended a subordinate in so doing, it is managerial prerogatives that are being grieved against. Management, through the formal grievance process, should be afforded the opportunity to weigh in.
Mr. Emlen words:
"Effective immediately, such grievances will be required to be forwarded to Fire Department management and copied to the Human Resources office and follow City personnel rules, rather than be handled solely by the union. Employees will be reminded that they have several avenues through which they can lodge a complaint or file a grievance, including pathways that do not involve going to anyone within the Fire Department. We further understand the unique situation and dynamic created when the union leaders are also in leadership and/or supervisory positions within the Fire Department. Weighing the rights of the union and its members with the public obligations of the management of the Department will continue to be a balancing act."
  • Union Bank Hours
This was not contained in the original complaint, we will have a separate story on this at some point backgrounding it. The bottom line here is that there were some allegations that arose about the misuse of these hours and the city does not keep track of how these hours are spent, which is problematic at best.'

Mr. Aaronson's words:
"The City, pursuant to its MOU with the Union, deposits 24 hours per year per firefighter and captain in the ‘Union Hour Bank’. This amounts to a considerable 1,080 hours each July 1st. Union members asserted that, for the most part, the union had complete discretion on how it chose to use/allocate these hours. Yet, according to the MOU,

“The purpose of this Union Hour Bank is solely to provide educational training and development opportunities to Union members and should not involve conducting or participating in other agencies’ unions activities.”

I gather this is to facilitate, in part, the attendance of union members at State and National union conferences, where training is typically part of the scheduled activities.

As I understand it, the union does not maintain records of how these hours are utilized and the City has never requested an accounting from it."
Mr. Emlen's words:
"Because the current Fire MOU stipulates specific acceptable use of this time, the lack of a written record is problematic. Currently, all requests do go through the Chief but the process is strictly verbal. While there is no indication in the investigation that there has been improper use, the lack of a written record is problematic. Effective immediately and for audit purposes, the Chief will be required to keep written records of requests adequate to address the MOU limitations on Union Bank Hours. This information will be forwarded to the Human Resources Division to monitor purpose and hours usage. The City may also discuss union bank hours further during upcoming negotiations with the fire union."
  • Political Activities and Donations.
Mr. Emlen's conclusion:
"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 and any changes or policies put into place are those for the union, not the City, to consider."
  • Promotion Process.
One of the key findings here is that while the fire department apparently followed the prescribed protocol, that protocol is inherently problematic.

Mr. Aaronson's words:
"Based on my interviews, the promotional process has been a flash point within the organization for over a decade…In fact, the single most common starting place where employees become ‘disgruntled’ is in connection with the promotional process. To the extent that certain circles believe that favoritism is a cornerstone in Chief Conroy’s department, their key proof is based upon their perception of how the promotional process has worked…Apparently, Chief Conroy has been aware of this perception for some period of time. This is part of the reason why she is at such pains, during each process, to meet with the candidates and go over, in great detail, how the process works…"
He continues:
"The Rule of Three vs. ‘The Rule of the List’

Most of the public entities with which I have previously worked operated under either the rule of three or the rule of five…In essence, after a formal assessment process, a final list of the candidates is compiled by someone other than the final decision-make/department head, wherein the candidates who meet the minimum qualifications are ranked in the order that they finished. The department head then interviews the top three or five candidates (hence the rule of three or five) and picks one of them. The department head is limited to either the top three or the top five. As well, the department head is excluded from the process whereby the list is compiled in order to ensure against manipulations."
Mr. Emlen's synopsis:

Mr. Aaronson’s findings included:
  • Current process not adequately transparent to the stakeholders

  • Multi-faceted assessment center should do more than to determine minimum qualifications. Otherwise, abbreviated assessment center should be utilized.

  • Final rating portion of process was arbitrary.
His recommendations include:
  • The determination of the candidates’ ranking based on training, education, and performance ought to be completed by some manager other than the ultimate decision-maker, in order to minimize the potential perception that the process, despite rigid assessment rankings is ultimately overly subjective.

  • Only the top three to five candidates ought to be forwarded to the decision maker for a final decision.

  • Records generated in the course of the promotional process should not be destroyed by the department or its managers.
Mr. Emlen:
"On this issue, it is important to note the process followed under the recruitment highlighted by the Grand Jury was in accordance with established procedures. It is also important to note that candidates selected were well qualified for the position. That said, the report does a good job of identifying why the current process could be improved for future recruitments with respect to clarity and minimizing questions of subjectivity in the final determination.

I concur with the investigation that improvements to that process can and should be made to refine and strengthen it. The Human Resources Division will work with the Fire Department to consider the above recommendations or other changes to the current promotional process to address the concerns and finding outlined in the report."
One point of question is that if this was such a flash point and Chief Conroy knew it was a flash point, why has this issue not been addressed far sooner?
  • Off-duty Sleeping in the Station by Inebriated Firefighters
Aaronson's words:
"A subcategory of this practice has been permitting intoxicated off duty firefighters to return to the station to sleep instead of driving under the influence.

Having asked everyone I interviewed, I could find no instance of any off-duty intoxicated firefighters interfering with on-duty crews. The closest I came was a single instance, reported by three separate sources, where a drunken firefighter vomited on an on-duty member’s blankets.
In my view, this issue represents a real dilemma. Certainly, I would be inclined to allow sober off-duty firefighters to use their otherwise empty beds on the basis that it saves gas and time as well as making available an additional trained person in the event of a major emergency, so long as off-duty employees in no fashion interfered with on-duty crews.

The problem is introduced when the rule permits off-duty intoxicated firefighters to return to the station rather than be forced to navigate their own way home. While no one wants anyone to drive under the influence, the City is not providing beds to other intoxicated people, only off-duty firefighters."
Mr. Emlen:
"This practice, while understandable from a personal and public safety perspective, is still an unacceptable use of public facilities. It does not appear to have occurred very often, but any occurrence is problematic. The City’s personnel rules, which provide that no employee shall be inebriated at the work site, will be enforced and off-duty firefighters will not be permitted to be at the station while inebriated. The Fire Chief is aware of this and is in agreement. Like any other city employee, firefighters will be expected to utilize other options, such as local hotel accommodations, taxis or designated drivers. Off-duty firefighters will still be permitted to sleep at the station before or after shifts when they have additional department-related activities to pursue."
  • Badging
Lengthy excerpt from Aaronson's report:
"Two years ago, there was a clear perception amongst Davis police officers that drunken off-duty firefighters were a small, but visible presence downtown some evenings. On occasion, they presented enforcement issues to the officers. This problem has substantially diminished as a result of all of the following: the closing of the firefighters’ favorite bar; the union president’s having spoken to his membership about the problem; the attention that an incident received in the department after two firefighters were disciplined for an off-duty, intoxicated incident downtown; and the attention focused on the department as a result of the GJR.

There are three known incidents involving off-duty firefighters downtown. In one, the firefighters were blameless and only attempting to protect a third party from injury. The second, where two firefighters were disciplined, was addressed by the Chief satisfactorily. The third is an instance where what the police department learned was never conveyed to the fire department for their own resolution.

This third instance, based on the contemporaneous statements of witnesses, may have encompassed (an) assault committed by an off-duty intoxicated firefighter at the end of a barroom disturbance. The matter was not forwarded to the district attorney for criminal prosecution due to the lack of cooperation by the victim…I have not attempted to investigate this incident other than to read the police reports and I therefore cannot ascertain whether or not the firefighter committed a…crime. But, on the face of the report, the matter should have been followed up on more vigorously by the police department and the report should have been forwarded to the Fire Chief for an internal personnel investigation.

At my request, a rather thorough search of the dispatch records was conducted to determine whether there were other incidents in the last 18 months. There were none. On the other hand, anecdotal communications between the police officers and with dispatchers surfaced, which tended to confirm that there were periodic incidents downtown where off-duty intoxicated firefighters were causing or becoming involved in minor public nuisances. …Both police officers and firefighters report that intoxicated firefighters regularly identify themselves as firefighters to police officers contacting them in connection with taking enforcement actions.

In the law enforcement world, when an off-duty officers so identifies himself, it is called ‘badging’. ‘Badging’, which used to be somewhat common, is now very much frowned upon and frequently subject to disciplinary action. A peace officer is prohibited from trying to use his official capacity in order to gain personal benefit, including special consideration from on duty officers…I suggest it would not be unreasonable to enforce this rule in the fire service as well."
Mr. Aaronson's report apparently also made note that the fire department, like other city departments was behind on timely evaluations of its employees.

Furthermore the city, failed to record what materials had been turned over to the Grand Jury.

Mr. Aaronson:
"City’s Failure to Record Materials Turned Over to the Grand Jury Inexplicably, when, in response to the Grand Jury’s request, the City turned over records to the Grand Jury, the City failed to either make a record of what it turned over or even a second set of copies of the documents. This meant I was unable to ascertain what the Grand Jury had actually looked at."
There were also a number of factually disproven Grand Jury allegations. Chief Conroy's husband was not the former Union Vice President, though he was and is a member of the union. Staff has never provided child care for Chief Conroy. The issue of the retirement party had to do with the fact that the individual wanted certain employees excluded from the party. There were no employees who reported problems with their personnel files. 19% rather than 80% of DFD firefighters live in Davis.

There are a number of concerns and questions that this report addresses. Instead of joining the commentary and analysis to the summary of this report, I will have my initial commentary in a separate article published concurrently.

---David M. Greenwald reporting