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Thursday, February 05, 2009

Commentary: The limits of Open Government and the Council's Right to Know

A few weeks the Davis City Council was trying to decide to what extent they had the right to demand to read the Ombudsman's Investigation into the Yolo County Grand Jury report. In a lot of ways it was a strange discussion. Let us forget for a moment about the content of that report and focus only on the process at hand.

City Attorney Harriet Steiner ruled two things. First, that the city manager had the right to determine whether or not the council could see something. Second, that if the council did view these personnel matters or a report deemed to cover a personnel matter, it could subject the city to liability. In essence, the city attorney deemed that in a city manager model, the council has no more right to view personnel records than members of the public.

Basically the city council hires the city manager. They are responsible for evaluating his performance. It was that evaluative process that led to the city manager's new contract that was approved last week in open session. However, as councilmember Sue Greenwald and Councilmember Lamar Heystek asked, how is the council supposed to evaluate the city manager, if they cannot review his work product. If they are in the dark about certain reports deemed "personnel matters," how can they determine how well the city manager has done his job?

And there is more. Implicit in the assumption by the city attorney was that viewing these documents somehow exposed the council to liability. However, there appear to be no precedents to back that up. One pervasive belief is that if the city council were able to see the full report, the firefighters union would sue the city. This is only speculation, but it has been suggested from multiple sources.

This whole discussion leads to two interesting things to ponder. First, what would have happened had a majority of the council determined they had to see the full report? And second, can and should the council change the system?

It is the second point we briefly ponder today. City Attorney Harriet Steiner upon questioning from Councilmember Greenwald did concede that the city could alter its model. It does not appear that the majority of council is interested in doing so. As I mentioned previously, right now the city manager model suggests that the council hires only the city manager and the city manager hires, evaluates, fires, promotes the rest of city staff.

However, apparently that is not the only alternative. Indeed if we look at the school district, we see a much greater role for the school board than for the city council. The school board is privvy to personnel matters and makes some of those decisions.

Implicit under those assumptions is that the elected members are not merely agents of the public, with the same rights as the public, but actually governing agents. From the standpoint of public policy, it seems problematic that the elected and publicly accountable city council members would have to take a backseat in such discussions to unelected city managers.

As we have discussed previously, the city council has the power to hire and fire the city manager, that is all. What we do not know is the extent to which the city council could use its ability to fire as leverage in this situation. The reason for that is that a majority of the council did not wish to force the issue.

This too is somewhat problematic. For it suggests a few things. First, that the power of a councilmember is extremely limited. Indeed, it has often been suggested that as a member of the public, I have much greater rights than a member of the council does. The majority has almost complete power to thwart the will of the minority in council when it comes to these kinds of issues. To an extent that we do not see in other forms of government.

A member of the council therefore cannot make demands to see documents with the power to enforce that decision.

The question is whether this needs to be changed. Should the elected members of the Davis City Council have the right to by themselves demand to see documents in order to make better decisions? Do they have any recourse when denied other than to politic to pressure the majority of the council or sue for access?

These are all questions that were brought up two weeks ago. It is our hope for the sake of transparency and accountability that this issue is not allowed to die.

---David M. Greenwald