Heystek Joins Vanguard's Call Against New Taxes without Reform

Back on February 3, the Vanguard made a bit of splash by invoking the spirit of Bush I circa 1988, saying "Read My Lips... No New Taxes."

In truth, despite how it sounded, it was not a declaration against taxes, or even new taxes. It was suggestion that Davis gets its fiscal house in order.

The city of Davis faces both a rare crisis and a rare opportunity. Right now, the city faces in the short term an economic downturn which has led to a loss of tax revenue. This situation calls for short-term budget cuts. However, the city has longer term structural deficit problems, it's facing a crisis of unmet needs, it's facing a problem of runaway top employee salaries, a pension problem, and an unfunded liability problem.

Those problems existed before the current economic crisis, but ironically the current economic crisis gives us a glimmer of an opportunity to get our fiscal house in order.

This economic crisis has already caused the city of Davis to scale back on its original plans to fix the longer term problem with new taxation. Instead, they are looking to manage the economic situation by renewing the current taxes.

As the Vanguard wrote on February 3, it has become

"clear that neither the council nor city staff wanted to raise or impose any new taxes in the near future to solve the city's growing problem of unmet needs. While I agree with that approach, it does not solve the city's problems either in the short term or the long term.

Instead they have suggested that they will simply place the current taxes back on the ballot. That would include an extension of the Parks Tax, which is a parcel tax requiring two-thirds vote and an extension of the half-cent sales tax."

The Vanguard took the position that even this renewal of taxes would be opposed unless the city gets their fiscal house in order in part through restructuring employee contracts and pensions.

At Tuesday night's Davis City Council Townhall Meeting, the Vanguard's call was heeded by Councilmember Lamar Heystek. In January, a similar townhall meeting drew 30 members of the public, at least. This time the meeting was poorly attended. Just three members of the public attended as opposed to huge amounts of city staff including all of the department heads.

Councilmember Heystek told the council and city staff that he would oppose the renewal of the new taxes unless the city dealt with the fiscal problem and new employee contracts in a responsible manner.

His announcement seemed to stun city staff who immediately took notice. The City Council is not directly involved in employee negotiations, although they do approve the final contracts. However, Mr. Heystek believed it was the only leverage he had.

Two of his concerns are asking city employees to take more responsibility for their post-employment benefits. In addition, the city should re-examine the method by which we deliver services such as fire.

The Vanguard earlier this week demonstrated that the city's costs for fire are disproportionate to our service calls. A situation the begs for a restructuring of fire staffing. The Vanguard is fully committed to insure that there is no loss of service or response time, but believes alternative and less costly models can and should be applied to improve our fiscal responsibility.

Right now that appears to be several changes the city can make to the structure of contracts that would contain city costs:

1. Hold the line on top employee salaries
2. Short term hold the line on all employee salaries during the economic crisis, in the future bring them up only as far as inflation takes us.
3. Restructure the pension system by increasing employee contributions especially at the top end and moving it from "pay as you go" to full funding.
4. Look into cost containment for health coverage

All of these would need to be done with collective bargaining agreement. The alternative to restructuring the pension system would be to create a two-tiered system. The bargaining units could make the decision as to which is more beneficial.

Now that Councilmember Heystek has pressed for the city to engage in strong negotiations, hopefully other members of council will follow. Councilmember Sue Greenwald has long been outspoken in terms of wanting to reign in the contracts and pensions of the highest paid employees and upper-management.

Once again it is important to emphasize that this is not an effort to put down either the average city employee or employee unions. The job of an employee union is to get the best possible contract for their respective bargaining unit. It is the job of the city however to be an effective counter to that weight. They represent the interests of the voters and the taxpayers. When one particular unit uses their political muscle and resources to elect favorable councilmembers while the other units do not engage in overt politicking the system begins to breakdown.

As we saw with the Grand Jury report in January, the impact of throwing $30,000 or more into a political race can be decisive in the actions a council is willing to take. Even the Mayor who has been outspoken in favor of fiscal responsibility wilted under the pressure of her backers back in January.

This will thus be a long and difficult fight, but Councilmember Heystek's actions on Tuesday put the city staff on notice that business as usual will result in a less than unanimous endorsement of their current policies.

The Vanguard urges other members of the council particularly Mayor Asmundson to quickly follow suit.

---David M. Greenwald reporting

Why Do We Need a New General Plan?

The Davis City Council last night began to embark upon their discussion of how the General Plan update process should proceed. There was considerable discussion as to whether it should even go forward at this point given the current economic situation, given the costs of proceeding, and given the uncertainty of our times.

The consistent question that arises and is never really answered by those councilmembers who support going forward with an update is why we need to do so now, rather than take the Housing Element that has already been adopted and perhaps modifying the plan with more modern and general principles of sustainability.

There is considerable difference as to how the council should proceed. Some such as Councilmembers Sue Greenwald and Lamar Heystek want to hold off on any major changes right now. Others such as Mayor Pro Tem Don Saylor believe that this current General Plan no longer can guide us and we now need a new one. Others such Mayor Ruth Asmundson and Councilmember Stephen Souza seem to want some sort of middle ground where there is some update, but on the cheap and perhaps not full blown.

Sue Greenwald cited the strength of the current General Plan and the budget situation as reasons not to go forward with a full-scale General Plan update process at this time.

“Personally I think there’s no reason to spent 1-2 million dollars that we don’t have to reinvent the wheel when the wheel that we already have is a Michelin. Yes it would cost 1-3 million dollars to do a comprehensive General Plan. Sometimes discretion is the better form of valor.”

Councilmember Greenwald expressed concern about the livability of this region in the future. She also demonstrated support for the work that has already been done and the fact that this General Plan is a model for other communities.

“We have an extremely high quality advance General Plan, we don’t need a new General Plan right now. Our General Plan is what other cities are trying to do. When you hear other cities are doing a General Plan, they are trying to do one similar to the one that we have now.”

The bottom line is costs:

“We can save 1 to 3 million dollars by re-adopting our current plan in essentially similar form. The Housing Element Update which is our legal requirement is good until 2013.”

As a result, she is looking at a more basic General Plan process—one that keeps what we have and is good, and updates where it is needed.

“We might want to add some sustainability items, but we might want to wait on that because the state is talking about how they want to incorporate sustainability into our General Plan.

We can amend our General Plan, four times a year with as many amendments as we want. We can work on a sustainability section now. We already have a housing element which is good through 2013.”

The uncertainty is also part of what drives the more cautious approach:

“It’s very important for us to scale this back. I was always against doing a full scale General Plan, but when the council majority decided to go forward with it, it was before the economic collapse. Many economists are debating whether we are going to have a recession that takes three or four years to really work our way out of or whether it’s going to be a Japan style twenty year recession where housing prices fell fifty percent and never got back to where they had been before…”

Given the current fiscal situation, we need to save whatever money we can.

“We’ve already set aside $257,000 just this year for this type of visioning process. We don’t have this type of money. Look at the budget deficits you’re going to see next week. I implore you, do not go forward with a comprehensive General Plan that we cannot afford to do and we do not need.”

Councilmember Stephen Souza spoke of several of the past General Plans and the process involved in developing them. He said that for him he didn’t want the extremely short, ten month process, but he also didn’t want the 215-member, 14 committee, six year process.

“As for the question raised by several in the community and the one councilmember that has spoken so far, why should we do this? Is there something broke that we need to fix here? I would say I have seen planning over the term that I have been on the council in a haphazard fashion. It’s not coordinate, there’s no vision of where it’s coming from, it’s project-by-project. I think that cuts into a vision I want to see in my community, inevitably.”

Councilmember Souza is looking for a vision that would describe what and where we will be within the parameters of the city of Davis. Is our “urban form” what we see now and will we simply redevelop it or is it something different?

“To should we. I concur, I really don’t want to spend any money right now. I want to save that money because I don’t know what’s going to hit us in the next two years. But I don’t want to stop what we’ve begun. If there’s some way we can move forward without moving forward as fast, on a plan. If there’s something we can do in the interim that gives us some guidance as to where we may eventually go.

Maybe it’s just describing that vision of what we will become in 2035 and 2050. Maybe we go that step, we don’t do a full-blown analysis, revision, and update. And I do agree that I don’t think… I think after looking at all these plans, I like this one [current General Plan].

I like it, but it’s confusing and there’s areas that need better understanding for not the folks who read this all the time who can go through it all the time… but for the basic citizen of the community to be able to understand this document a little more.”

Mayor Pro Tem Don Saylor began by describing his involvement in the previous process. He suggested that contrary to popular belief, most of the people involvement played a small role. His own was played on committee that completed its work seven years prior to the final adoptions of the General Plan in 2001. From that standpoint our General Plan is not merely eight years old, but entire sections are actually closer to 15-years-old and thus badly in need of update.

He continued arguing that the current plan is in effect, obsolete:

“I submit in many respects our current General Plan is not guiding our actions. Any action that we need decision that we take, does in fact require a General Plan amendment. In fact, we do bundle them up and package them in one of these four General Plan amendments that happen each year. Virtually any project that comes forward, we’re looking at changing the General Plan.”

He then disparages the current General Plan:

“I think the General Plan is as our staff has said, long and unfocused. It is not clear in its guidance. It does not provide for reliable projects for financial and infrastructure planning. It requires us to have constitutional crisis over any project that comes before us. It has a lack of coordination with UC Davis plans and is not in sync with the state requirements, some of them are still shaping on climate change, water supply, environmental justice and other issues.”

From this perspective, he suggests we have a need to take a look at it.

“My interest in terms of what should it contain and achieve, I would dearly love for us to have a process… that allows our community members to be able to coalesce around some sort of shared vision on what we want our community to be on about 2035. The reason to take a date like that is that it’s far enough out that we are not necessarily talking about what we do with some intersection or some empty lot, we’re talking about a vision. That vision should guide what actions follow and flow from it.

I would like for the plan that we have to constitute a framework for us so that when we have decisions on individual projects or proposals that we can compare them against something rather than the individual opinions of the people who happen to be in the room at the time.”

He went on to point out the current General Plan does not address issues like climate change, sustainability, economic development, infrastructure needs, and other issues of finance. He spoke of the need to update our transportation circulation system.

“Our street system is sort of designed for something that doesn’t exist anymore. In a lot of ways our streets are designed for a town that existed in 1965 and we’ve already outgrown it and we should take a look. ”

Later the Mayor Pro Tem would take issue with the suggestion that this comment refers to the need for widening the roadways in Davis.

“In terms of the financing, nobody can argue that we’re in a good time to do this. But we’re not planning for this year or the year after, we really are thinking about visioning for a longer term.”

He wants the city to look for sources of funding and is willing to consider some sort of phased approach.

Councilmember Lamar Heystek was very cautious about the need to do this and urge us to be careful in proceeding.

“I think we need to be careful about our process that leads us to throw the baby out with the bath water. We’ve heard a number of comments made about our General Plan—some good and some not entirely positive. But, if this current General Plan is the road map of our community I ask anyone to tell us how this roadmap for our community, how has this road map let us astray. What is it about Davis now that we think this General Plan has led us to that we need to change?”

He agrees that there needs to be actualization of this plan. However, he challenged people to find what they disagreed with with regards to the current General Plan.

“If you find something objectionable please tell us and tell us how we should change it.”

For him therefore, it is unclear why we need to spend money for something that does not appear to be broken.

“It is unclear to me why we should be spending millions of dollar on a[n updated] document or taking this document and possibly creating an entirely different one if we can’t make the case that this document has led us astray.”

Councilmember Heystek argued that if there are weaknesses and omissions within the current General Plan, perhaps we needed staff to find ways to address those needs for less than one million dollars.

“Unless someone points out to me what’s wrong with this plan, I’m not inclined to start a new process… If it ain’t broke, don’t fix it.”

He also wants to look at other aspects of our General Plan aside from land use. He wants to think about where this falls within our priorities. His major concern is with the price tag and the need to change this project.

Mayor Ruth Asmundson did not want the finances of this plan to prevent the process from going forward.

“We talk about maybe this is not the right time to start this process because it’s expensive. But I think what we need to recognize is that we’re not planning for the today, but we’re planning for the future. We should be responding for future plans for what we have right now. It has to be a process that spans so many years.

We don’t really know what that future will bring, but what we need to look at is what do we want to see Davis in 2035.”

The Mayor wants to have a vision, we all have different ideas of what is best for Davis, and wants to start with a positive process where we look at what we want rather than what we don’t want. We need to have strong public engagement.

She is concerned a bit with the three million dollar cost and questioned how much input we need and how long a process this should.

“I think most of the three million (dollar) cost is because of the long process, long public engagement that is going to happen. I think we need to find a hybrid—I don’t want it too short that we are shortchanging our process, I don’t want to have that. If we’re going to have a new General Plan or an updated General Plan it has to be realistic and pragmatic that we can really use rather than just having a nice product that will go on the shelf.”

She thinks that two years is too short. She’s looking at two to five years with five years being too long. In terms of the cost, she wants to do it for less than a million but recognizes the costs of the EIR. She wants to possibly have a “cheaper” environmental impact report. She also wants to explore alternative funding options like SACOG.

“If the cost is what’s prohibiting us, then I know that we can get the funding grant from somewhere else. But that shouldn’t be the limiting factor for us in this study. I think we need to look at what we want and then look at the cost. My personal preference is I don’t want to start with the cost. ”

Finally, she feels that since the issue of growth is a divisive issue, we should not look at growth but rather what we want in Davis. According to the Mayor, growth has to happen, but how do we get to that.

“It shouldn’t be the growth that leads us to where we want to go. So I want growth to be used secondarily not what’s leading us.”

Commentary

The question I came in with is why we need to do this now. What I heard at the meeting, even from those who argued that we did need this now, was really no rationale for urgent and immediate action. I heard reasoning of why things need to be updated on a variety of fronts. I heard reasoning of why we need at some point to come up with a shared vision for the future of Davis. What I did not hear is a reason why this needs to begin today or next year, rather than in 2013 when the Housing Element expires. What I did not hear is a reason we cannot revise the current General Plan to include elements of sustainability and climate change that we seem concerned about to go along with the Housing Element Process.

The bottom line is I simply do not see the need to go forward with this today when we are facing down a budget deficit that will run in the millions, when we have adequate housing to fill our needs frankly for the next ten years let alone five, when the market is crunched, the state and country is in crisis, and we have no idea what tomorrow let alone next year will look like. There was nothing said last night that changes that viewpoint.

As Councilmember Sue Greenwald wrote on the Vanguard last week:

"This is a total waste of money, which I have been opposing from the start. Our current general plan is very good, and way ahead of its times. The housing element update can be done independently. The plan can be amended quarterly.

There is no way we have the money for this exercise. I can only imagine that growth agendas are driving it."

Councilmember Greenwald is exactly right. The city's current budget appears to have a deficit of upwards of $5 million for the fiscal year 2010-11. And yet the re-drafting of the general plan will cost into the millions.

According to the city staff report:

"Total costs for updating the City's General Plan could range from approximately $1 million to $3 million over two to four years, depending on the work program selected."

We might be able to justify the cost if there was a pressing need to update the general plan. During the course of the meeting, again, I saw rationale for us to update portions of the General Plan. What I did not see was either rationale for the scope that Mayor Pro Tem Don Saylor suggested or to do it today.

As Councilmember Greenwald has put it, the current General Plan is a sound plan which was way ahead of its time. There is no need for wholesale changes.

"We can just take the existing plan with the new housing element, make a couple of changes (we do that regularly anyway), and adopt it as our new plan."

Councilmember Lamar Heystek concured. He told the Vanguard prior to the meeting:

"It is not clear to me, especially in light of the millions of dollars in budget cuts we'll have to make over the next few years, why we should be spending millions in taxpayer dollars redoing what the taxpayers themselves spent years doing just a short time ago. My priority is to implement what we have, not reinvent the wheel."

What is clear is that our citizen-based General Plan is now under attack by the forces that are demanding more growth. Our current citizen-based 2001 General Plan is a core document which speaks to a long term vision of the future of Davis. Many spent years working on this document, why throw it out now?

Moreover, they are pressing for a twenty-five year general plan that looks out to 2035 or even 2050. 2050? That is forty years. But by developing a plan that far out, what will happen is that sites that would never be considered in the next ten years, will be given life and consideration when we look forty years out. Such a document is growth inducing.

This is not the time to spend money on this sort of project. We do not need to do it right now. We have serious problems facing us including a budget deficit, a structural deficit, and a pension and compensation system that is out of whack and in need of restructuring.

There are serious questions about our water supply and even more questions about the cost of developing alternative sources for water which will threaten to drive the average person for their homes.

It is ironic that so many talk about Davis' lack of growth policies as leading to the increase of cost of housing, the pricing out of the middle class, and yet if we continue to grow as we have, we will be forced to develop a water project that will do exactly that--force out existing residents who cannot afford the $200 per month additional cost for water.

In short, there is no justification for updating the General Plan right now. The housing market has sapped the demand for new housing. The council has already approved enough housing over the next five years to meet our RHNA requirements. And most of all, there is no fiscal justification for a project that runs in the millions and gives us so little in return.

And yet as we stand here today, that is exactly what this council is poised to do. There appears to be a majority in favor of some sort of process. They may not necessarily agree on what that process should be, with Councilmember Souza seeming to want a much more modest process than the seeming complete revision that Mayor Pro Tem Saylor wants.

The question I think is what do the citizens of Davis want. It is your city. What do you want to see?

---David M. Greenwald reporting

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

Vanguard Analysis: Enterprise Obscures Where It Should Shine A Light

The vote on Tuesday night on the B Street project was admittedly a bit confusing in its conception. However, the Davis Enterprise article made it more so, not less so.

The title of the article was "Project will get another chance."

In a technical sense, that may be true. Council by a 3-1 vote passed a motion that would allow the applicant Marie Ogrydziak to bring her project back without having to pay additional fees. However, the motion directed her to work with the neighbors (who were overwhelmingly against the current project) and change her plans. Under those conditions, she would have to bring the project back through the HMRC (Historic Resources Management Commission) and Planning Commission. If they approved the design changes, the project would actually never come before council. The only reason the project came before council to begin with was that the Planning Commission by a 5-2 vote rejected the project as not meeting project guidelines.

The Enterprise continues:

"On Tuesday night, the City Council decided that Ogrydziak could resubmit her proposal and the council will consider it again, without Greenwald's participation."

Here again, it is more than a bit misleading. First, technically speaking, the project does not have to go back to council. But let us suppose it does, is Councilmember Greenwald conflicted out?

That is far from clear. She did not participate on Tuesday night. That much we know. But there are two possibilities for her participating. First, council at somepoint is going to revisit the issue of conflict of interest. Staff will look at the current rules. Second, Sue Greenwald could be ruled not to have a conflict by virtue of the fact that her property value would not be impacted by the project.

The applicant tried to argue that everyone in that neighborhood would be impacted one way or another by the project. But realistically speaking, given the distance which is 470 from property line to property line and an excess of 500 from house to house, given the fact that there is no direct sight line, given the fact that they are not on the street, or as Councilmember Greenwald put it, it's a design review rather than a project review, it is difficult to sustain the applicants point.

Nonetheless, none of this has been determined at this point.

The Enterprise's synopsis of the motion comes about halfway through the article:

"The council could have upheld its November decision if it so chose, but instead it said it would consider a resubmittal of the project if Ogrydziak worked with the neighbors and changed her plans."

The council basically did uphold their November decision. However, in the spirit of Former Mayor Maynard Skinner's olive branch, they worked it a bit more positively, rather than outright rejecting the project, they asked that it come back again. But functionally it is really the same effect. Under the November ruling it would be delayed a year and she would have to come back with a new proposal. Under this ruling, she has to come back with a new proposal. It may not exactly take a year, but realistically she is not going to redesign the project and get community buy-in all that much faster than she would have. So the only real victory she wins is a fee waiver.

All of this is of course clear as mud. What is interesting as well is that Councilmember Souza's motion "directs" the applicant to work with the neighborhood for changes within the design. However, as we know from City Attorney Harriet Steiner's legal interpretation, direct doesn't mean required by law.

As Ms. Steiner told Mayor Pro Tem Saylor in response to a question about giving direction, Ms. Steiner informed the council they cannot give "enforceable direction, but you can state your thought on the matter."

On that point the council was clear as was Councilmember Souza:

"I'm going to be straight out, I'm going to vote against the project if it comes back to us exactly as it was. So we're putting her through the process without any change in the outcome. So what I'm saying in my motion is that if you want to see me vote in the affirmative, you have to change the project. The project has to meet the guidelines as I see them in order for me to affirmatively vote for it. I think it is the best thing for this process to go through a process of neighborhood discussion."

He continued:

"I'll vote against bringing it back for a rehearing because I think it's a waste of time. I don't want our time to be wasted and I would prefer we give direction that's positive."

And that is really the final complaint with the Enterprise article, it did not capture adequately the tone of the decision by the council. The suggestion in the headline and parts of the article is that the applicant was successful. I am going to go out on a limb and suggest that the applicant did not leave Council Chambers with the belief that she had prevailed. If she believed she was going to be able to put forward the project as currently designed she was sorely mistaken.

However, that is not the impression that the article gives.

Part of the problem is that the Enterprise only gives the matter 415 words--which is itself a problem. A breakdown of word usage shows us why the tone is misleading however.

The first 121 words deals with background and Councilmember Greenwald's participation which was suggested to be inappropriate but not definitively determined as such during this meeting.

The next 57 words suggests that the council will reconsider it without Greenwald's participation and then that they could have upheld November's decision but chose not to.

It's only the next 105 words with actually deal with what Councilmember Souza, the drafter of the motion, said. This is the only portion that casts a negative light on the decision from the applicant's perspective.

Mayor Pro Tem Saylor's procedural manuevering, which was rejected, gets almost as many words, 100, as Souza's motion which was adopted.

14 words go to:

"Ogrydziak's project is expected to be before the council again after she resubmits plans."

Which is actually not true as we've discussed.

And finally 18 words to:

"The council also agreed to discuss at a future meeting how other cities and organizations handle conflict-of-interest matters. "

Which is actually an important aspect of this in its own right because that's in part how Councilmember Greenwald's participation will be determines, IF the matter even comes back to council.

There are really two problems here. One is that this story is only assigned 415 words. You just cannot do an adequate job with that short a story on this complex an issue. That is certainly not the reporter's fault. One of the big advantages the Vanguard has is that there is no word limitation.

The second problem is that you need to adequately reflect the tone and functional outcome of the decision. In that sense this article fails. First with the headline which is technically accurate but completely misleading in tone. Second, with the construction of the article that buries in the middle and underrepresents the outcome. Basically 105 of the 415 words reflect the tone and tenor of the decision and it is placed in the middle and off the front page of the newspaper. That needs to go up front and needs to also be longer.

The bottom line is that a person reading only that article on this issue would not come away with an accurate sense of what actually happened on Tuesday night.

---David M. Greenwald reporting

City's Budget Hole Grows--Unmet Needs Will Go Unaddressed

A year ago the city basically identified around $13 million in what it called unmet needs. These were needed projects in a variety of departments that the city needed to undertake but lacked the available money to pay for them. As the Vanguard has mentioned previously, some of these are quite basic road repairs and other vital services.

Right now the city is projecting a growing budget deficit for the foreseeable future. It begins at close to $1.5 million for the current fiscal year and doubles to $3 million next year.



As Finance Director Paul Navazio stated on Tuesday night, the city is going to have to first address the structural and immediate budget problems. That means that these unmet needs will continue to be unmet needs into the foreseeable future.

From the staff report:

"While the growing list of unmet needs – both one-time and recurring – remains a significant concern, current economic and budgetary realities suggest that emphasis should be placed on securing existing revenues over seeking new revenue sources that could, potentially, jeopardize revenues relied upon to provide existing City services."

Right now the city is focusing on addressing existing revenues. They do not believe they will be able to in this climate get the voters to approve tax increases. Therefore the priority at this point is on renewing the existing tax measures--namely the parks tax and the half cent sales tax. One alternative would instead of the renewal of the parcel tax for the parks, combine the the parks measure with an additional quarter cent sales tax to produce the $1.5 million the parks tax is currently generating.

From the staff report:

"At this time, staff is suggesting that the highest priority related to future ballot measures should be the renewal of the ½ Sales Tax (Measure P), approved by the voters in June 2004, with a 6-year sunset provision. This measure currently provides roughly $3 million in General Fund revenues to the City.

Secondly, priority should be given to options for renewing or replacing the Parks Maintenance Tax (Measure G), which was re-authorized by the voters in June 2006, with a 6-year sunset provision. This measure provides roughly $1.3 million in dedicated funding in support of park maintenance activities. In the past, some concerns have been expressed over the appropriateness of assessing this tax on the basis of a flat $49 tax on parcels within the City. Staff has previously been directed to explore alternative funding mechanisms, to the point where the text of Measure G provides that the measure would be repealed in the event that the City secures an alternative means of funding parks maintenance activities."

What is driving this is the basic reality of the situation for the city. The taxpayers in Davis have already been asked to pass two parcel taxes for the school district and one for the library. They will be asked to pass another parcel tax by the school district in either late 2011 or early 2012.

The city does not want to be competing against the school district for tax funds. Right now they are simply looking to renew what they have. That would mean a June 2010 ballot measure to renew the sales tax or possibly fold Measure G into the sales tax.

The problem here is obvious but unavoidable given the city's lack of addressing the unmet need problem previously. The assessment of Navazio and the city is exactly right--the public is not going to approve the slew of tax measures that it proposed a year ago.

In December of 2007, the city was considering a public safety tax placed on the ballot sometime in 2009. At that time, Councilmember Souza even pushed for it by November 2008.

Second, they suggested a new sales tax on the ballot in 2010 with a quarter-cent increase. At that time it would not have subsumed the park tax but rather would have paid for street and road maintenance.

Finally in he called for a replacement of the park tax with an increase in the municipal services taxes.

Now the dilemma. Many will undoubtedly be pleased to hear that these taxes are essentially off the table. However, the downside is twofold.

First, the city is going to have to find a way to cut millions from the budget over the next several years.



Second, the city while cutting millions from the budget over the next several years, needs to find a way to chew into what is now $8.74 million of one-time unmet needs (including nearly $6 million for the fire department which I assume still includes possibly a fourth fire station and a new engine) and $7.35 million in recurring unmet needs, that one is more spread across the board.

In December of 2007 Councilmember Don Saylor said:

"Today we really can look at the structural deficit as we refer to so often as something within our grasp. The numbers are so small that they will be taken care of by small increases in the economic development plans that are already underway."

Councilmember Saylor was wrong. He did not foresee the magnitude of course of the economic crisis bearing down upon us. But he did not recognize that our failure to appropriately deal with the unmet needs would become a crisis just over a year later. The problem was that everyone assumed or at least three councilmembers at time assumed that we could simply tax ourselves out of our hole. Now that is no longer a possibility.

In the meantime, no one dealt with the longer term structural problem namely unchecked employee salaries, and this is not a general statement about employees. There are specific areas that are particularly problematic.

It turns out in December of 2007, that then-Mayor Sue Greenwald was the one who was correct.

"We have a structural deficit, we haven't really done anything to improve it, we've just changed our accounting principals, made them less conservative. But that also means it's going to be more sensitive to downturns in the real estate market and other potentially recessionary phenomena."

She continued:

"We have not only not reduced it [structural deficit] but we've also made ourselves more vulnerable to our PERS contributions."

Mayor Greenwald turned out to be exactly correct and the current Mayor Pro Tem was overly optimistic.

The system has imploded. We have seen our vulnerability to the real estate market downturns and for the first time really to a major recession. There is no light at the end of the tunnel. The unmet needs are still unmet and now there is no immediate plans to meet them.

It will be interesting to watch the impact on this community when the city has to cutback on vital city services. We have already seen push back on the issue of parks and recreation--and frankly that was mere pennies compared to what awaits us.

---David M. Greenwald reporting

Councilmember Souza and the Council Put a Stop to a Rehearing on 233 B

As we reported on Saturday, the City Attorney Harriet Steiner suggested that she erred in her assessment that Councilmember Sue Greenwald was not conflicted out of a vote cast on November 4, 2008 against a redesign of the 233 B Street property. Therefore the city staff determined that the applicant could request a rehearing without going through the normal reconsideration process.

The council will meet at a later point to modify and correct conflict of interest policies. We have discussed this at length already.

Despite applicant Marie Ogrydziak and her chief advocate on the council, Mayor Pro Tem Don Saylor attempting to couch this in terms of procedural fairness, the vote really came down to whether or not a rehearing would change the outcome. Ms. Ogrydziak would argue that it would--that councilmember Sue Greenwald had a large affect on the vote and therefore it was only fair to rehear without prejudice.

Marie Ogrydziak read a statement before council. She explained the background of why she believed Councilmember Sue Greenwald's house was within 500 feet. She pointed out that the Councilmember had to recuse herself for a 2004 project at the same location.

"Sue Greenwald should have been recused from the November 4 votes for the 233 B St project. Her votes had two major effects. One was essential for the rejection of a motion to include green considerations in the project approval process. And the other was essential for the appeal of our planning commission vote."

She then snarkly suggested:

"Jokingly we considered plate tectonics as a possible explanation for why four years later Sue Greenwald's property was now more than 500 feet from the 233 B St property."

She then accused the city of engaging in a "creative approach" to "attempt to prove that no mistake was made because there is no conflict of interest."

She continued:

"We believe such an approach starts the city of Davis down a slippery slope."

Ms. Ogrydziak then suggests it might be possible to find a realtor who would finds no impact on Sue Greenwald's property value, but suggests that would be contrived.

Amazingly she then argues for recussal on the basis of Sue Greenwald disagreeing with her vision for B St and that neighborhood:

"For many years Sue Greenwald and a small group developed and advocated a vision for what she sees as her neighborhood including B St. Several of our proposals and our actions run counter to her vision. As a private citizen she spoke against our first project at the 2004 council meeting and twice against our current 233 B project at planning commission meetings this summer... We believe in many ways Sue Greenwald is too close to this project and that she should recuse herself as it seems impossible that she can be impartial on this matter."

She then appealed to the council on the basis of fairness:

"In reality this vote is not about the project but about fairness and support for sound city policy."

Mayor Pro Tem Don Saylor advocated for the staff recommendation:

"I think this is a procedural matter strictly, this is a matter of whether in due process and fairness the earlier hearing we had was proper."

Mayor Asmundson initially went along with the process believing that is what the council unanimously supported.

"To be fair we erred in terms of distance, regardless of whether there will be change, we need to rehear the item."

Don Saylor moved approval of staff recommendation. Councilmember Lamar Heystek seconded the motion with the friendly amendment that we "respectfully ask the applicant to work further with neighbors to further modify the design."

This was not acceptable to Mayor Pro Tem Saylor because "it prejudges the outcome of that conversation."

As a result Councilmember Heystek withdrew his second and Mayor Ruth Asmundson seconded the motion instead.

Katherine Hess suggested that if there was a different proposal submitted, it would be appropriate to send it back to the Planning Commission and the Historic Resources Management Commission.

Councilmember Stephen Souza pushed for a substitute motion requesting the applicant work with the neighborhood for changes within the design that came forward and to take that through the Planning Commission and the Historic Resources Management Commission. Councilmember Heystek seconded it.

Mayor Pro Tem Saylor then said he would vote against this on procedural issues and suggested that the

"applicant would have a course of action against the city if they didn't allow a resubmittal with no fees."

City Attorney Harriet Steiner shot that suggestion down:

"I do not believe that the applicant has a legal cause of action against the city by reason of what happened and Sue's participation at the last meeting."

The council danced around for a bit, it appeared that no motion would gain more than two votes. Finally, Councilmember Stephen Souza put his foot down.

"I'm going to be straight out, I'm going to vote against the project if it comes back to us exactly as it was. So we're putting her through the process without any change in the outcome. So what I'm saying in my motion is that if you want to see me vote in the affirmative, you have to change the project. The project has to meet the guidelines as I see them in order for me to affirmatively vote for it. I think it is the best thing for this process to go through a process of neighborhood discussion."

He continued:

"I'll vote against bringing it back for a rehearing because I think it's a waste of time. I don't want our time to be wasted and I would prefer we give direction that's positive."

Councilmember Souza's plea was so strong he pulled Mayor Asmundson with him and the council voted 3-1 to reject the rehearing with Councilmember Saylor dissenting.

Commentary

I had a problem with the way in which this issue came about. Let us forget for a moment the procedural mess that city staff and the city attorney made of this issue and let us focus for a moment on the applicant.

I will start out by saying on a technical level, I understand her plea for procedural fairness. The issue of whether or not Sue Greenwald was actually conflicted out has not been resolved satisfactorily however from my standpoint and I think the council has taken a good step in getting clarification on this. Based on that uncertainty, I think the council should have deferred the decision if they were inclined to grant a rehearing on that basis.

But frankly Councilmember Souza was right here--and quite forceful about it. The fact is that the reason he voted to abstain and kill the project in November remains just as relevant today. Ms. Ogrydziak in her letter seemed to assume that Councilmember Souza would continue to abstain. That ignores statements he made both before and after his initial vote. Namely that he didn't think this project was appropriate for that site.

More appallingly to me is the fact that Ms. Ogrydziak seems far more concerned about procedural fairness towards her project rather than the feelings of her neighbors. At that November 4, 2008 meeting, former Mayor Maynard Skinner presented a letter signed by all but one of the neighbors in opposition to the project. Mr. Skinner generously came back last night to offer to meet with the applicant to produce a more suitable project but was essentially rebuffed.

To me this entire appeal was a slap in the face to Ms. Ogrydziak's neighbors. How does it further the process of reconciliation if she attempts to essentially do an end-run around the initial decision without addressing a single neighbor's concern? That does not seem like a good faith gesture to me. In fact just the opposite. She was far more concerned about getting her process a new hearing that dealing and mitigating the concerns of those most affected by her project.

Fortunately, thanks to Councilmember Heystek's persistence and Councilmember Souza's forceful and needed bluntness, Mayor Asmundson recognized that any effort to rehear without major revisions to the project would be a waste of the council's time.

Sadly Councilmember Saylor was dogged in his advocacy for Ms. Ogrydziak's project. While at one point he suggested to her that the council had made it clear that they wanted changes, nevertheless, he voted in the end to waste the council's time with a rehearing that would change nothing. Moreover since the city would have waived applicant fees, the city would be eating money in addition to the time to resolve this issue.

At one point, Mr. Saylor suggested irresponsibly that the city might face a cause of action if they did not grant a rehearing--why would he bring this up in open session? If this was truly his concern, why would he not have discussed it with the City Attorney in advance? In fact, the City Attorney had already written in the staff report that she did not think the city was obliged for a rehearing and she was forced to reiterate this point in open council. This was tantamount to a not-so-subtle threat that was made by Ms. Ogrydziak and carried by Mr. Saylor.

In the end, the council acted responsibly by suggesting yet again that Ms. Ogrydziak needs to go back to the drawing board, redesign the project, and for crying out loud, work with the neighbors.

---David M. Greenwald reporting

Councilmember Greenwald Conflicted Out Retroactively

Will Council have to revisit November Vote on B Street Project Based on FIVE Feet?

On November 5, the City Council heard an appeal of an application to develop four detached residences on the parcel at 233 B Street. The Planning Commission back in July denied the applications by a 5-2 vote based on inconsistencies with the Design Guidelines. All but one neighbor strongly opposed the design modification. Simply put it was a very innovative design and project that did not belong in the middle of an existing neighborhood.

The city council by a strange 2-2-1 vote where Councilmembers Greenwald and Heystek opposed the appeal and Councilmember Stephen Souza abstained. That vote gave the applicant, Maria Ogrydziak one year to work with her neighbors to come up with a more suitable project for that location. Following abstention, Mayor Pro Tem Don Saylor was not happy and provoked an angry exchange with his colleague and frequent ally on the council. He informed Councilmember Souza that due to his vote the project would be killed. The councilmember was well aware of the implications of his actions.

The councilmember said:

"I have a major conflict here trying to pit history against the environment."

Mr. Saylor responded:

"So you deny the project by not doing either."

That was clearly the intention of Mr. Souza's vote. What has now happened is that instead of working with her neighbors, Ms. Ogrydziak is working with Mayor Pro Tem Saylor to find a backdoor around the original vote.

Staff report attaches a January 4 letter from Ms. Ogrydziak to City Manager Bill Emlen.



In it she claims that they check and found that Councilmember Greenwald's property was 470 feet from the project and therefore she should be conflicted out.

"If Sue Greenwald had been recused, we would not have lost various votes (with Stephen's abstentions), and the project would still be alive. Therefore, I am requesting a re-consideration for the 233 B Street Project, without added City of Davis or Planning Department fees."

During that meeting, there was considerable question as to whether Councilmember Greenwald could vote on the project. As the staff report reads:

"ownership of property within 500 feet of a proposed development creates a rebuttal presumption of a conflict of interest for a public official."

In other words, anyone within 500 feet of a property is conflicted out from participating.

"Prior to the meeting, Councilmember Greenwald was advised that she did not own property within 500 feet of 233 B Street, and therefore did not have a conflict."

In fact, Councilmember Greenwald did not stop there, twice during the meeting prior to participation she specifically asked City Attorney Harriet Steiner if she had a conflict and was twice told that she did not. Based on that advice, she participated in the vote and discussion of this matter.

Now, nearly three months later, the city attorney is claiming there was an error and she is conflicted.

"This advice was incorrect, however, due to a drafting error in preparing the maps."

I am as concerned about process and conflicts of interest as anyone, perhaps more so. However, I have been told that she is 495 feet from the property. So somehow if she is 495 from the property she is conflicted out, but can vote if she is 500 feet or 501 feet. From a practical standpoint that does not make a lot of sense.

But just because she lives within 500 feet, does not necessarily mean she is conflicted out. She can show that she would not stand to benefit from the proposed development or lack thereof.

Here again we get into utter illogical advice from the City Attorney.

"It is possible that Councilmember Greenwald will seek a determination from a real estate professional, such as an appraiser or broker, that, notwithstanding the fact that her property is within 500 feet of the proposed development, the proposed development will have no impact on her property. If she obtains such an opinion, then she would not have a conflict on this matter. At this time, we do not know if Councilmember Greenwald will seek this further opinion."

This makes even less sense than ruling her conflicted out based on five feet. Councilmember Greenwald was basically told to hire a real estate agent to assess the impact of her property which is on Rice Lane, a side street nowhere in the vicinity of 233 B Street. The likelihood of an impact is extraordinarily remote. And yet, by asking her to obtain the opinion, you risk having an interested party making a ruling rather than the city hiring an expert who is impartial do the assessment. Talk about conflict of interest. Who would find such an expert's view compelling under those circumstances.

Apparently the mere fact of her participation does not negate the action taken by the Council in November.

"Councilmember Greenwald’s participation does not negate the action that was taken by the Council in November. The denial stands. The applicant has asked that the matter be reconsidered to allow a different vote on the applications.

Staff and the City Attorney agree that it is fair to provide the applicant with a new hearing."

Really fair to whom? To the neighbors? To the taxpayers of Davis? To the voters of Davis? To the process of democracy?

Fortunately, there is no guarantee that there will be three votes to have a new hearing. Mr. Souza specifically voted, albeit by abstention, to delay the project because he felt it ill-suited for the neighborhood. It seems unlikely he would change his mind, especially with this procedural nightmare.

To make matters worse, this item was place on CONSENT AGENDA, where it could have easily be hidden from the public and perhaps the council.

"Staff recommends the following approach:

- The applicant to re-submit applications for the project presented to the Council in
November;
- The City to waive processing fees;
- The applications to be scheduled before the Council expeditiously, with no further
Planning Commission review;
- Minimal additional staff work or analysis, but reliance on the previous staff report."

This entire situation is appalling. Ms. Ogrydziak's project was strongly and vociferously opposed by every neighbor except for one. The planning commission denied it. The city council by a strange vote denied it. And instead of coming back and working with her neighbors, she has tried an end-run around the process seizing on an error and a technicality to try to invalidate the vote of one of the councilmembers.

To make matters worse, the city attorney, city manager, and city staff have bought into this.

All of this based on 5 feet (or even 30 feet as the applicant claims)? There have been some baffling things I have seen this city do, this one may take the cake. She presumes Councilmember Souza will still abstain--I think that is rather presumptuous of her given his expressed desire at that meeting and his likely reaction to this kind of maneuver. The Vanguard certainly hopes Mr. Souza does the right thing here and we have faith that he will.

---David M. Greenwald reporting

Commentary: Don't We Need Three in Town?

If you are one of those who is easily offended at any hint of criticism, stop reading right now. There are a few things that need to be said. Tuesday was an historic day. For those who missed the Vanguard radio show last night, listen to it when the podcast is available. I spoke with Tansey Thomas, who everyone knows and with Wayne Lindsey, who no one has heard of. Wayne is a 21 year old UC Davis student. And yes he's African American. It was neat listening to someone born during the depression and someone born when I was in high school talking about what the election of Barack Obama means to them and for African-Americans.

But now it is time to get back to work, back to the real world. For my other job, I had the priviledge of sitting in a teleconference with Speaker of the California Assembly Karen Bass and Senate Leader Darrell Steinberg. They were flying back from the Inauguration. One of the reporters who wasn't me asked them if they thought the California voters were better served by them going to the Inauguration or given the budget crisis being back in Sacramento and trying to get a budget agreement.

It was a tough but fair question. They gave in my opinion a strong answer. The President is formulating his stimulus plan in the coming days. The California legislative leaders came to Washington basically to see that the President and his team put money into the stimulus plan to help the states. No one has money of course, but at least the feds have the ability to deficit spend.

I relay that story because of what I read later yesterday evening about our leaders from Davis who also went to the Inauguration. I do not want to begrudge them a trip to Washington to watch history. I watched on my couch on Tuesday morning with Cecilia, and we were both glad to be on our warm couch watching it on TV rather than standing in the cold without easy access to bathrooms watching it on a giant monitor. Anyone who knows me, knows crowds are not my thing.

But a few things struck me about the article in the Enterprise. First, unlike the state leaders, there was no official business involved in this trip for our three city leaders.

One line from the article in particular seemed to stick in my craw:

"Saylor chatted after the ceremony from bleachers across from the White House. He was playing a quiz game, and had just correctly named the eight U.S. states that begin with the letter M."

I guess I am glad he can name all eight states that begin with the letter M. I am pretty sure I could have done that in first grade, not that that means anything. I am not sure I would really be sharing that with anyone.

A couple of things that come to mind on all of this. Councilmember Lamar Heystek, if he had said that, would have been lampooned in the local press to no end. He was lampooned for being Max Headroom by Hudson Sangree of the Sacramento Bee after representing the city of Davis in Arkansas and still having the diligence to serve our community and attend the council meeting in a virtual way that was unfortunately a bit technologically challenged.

This was not meant as a shot at Councilmember Saylor. He didn't choose for the paper to actually print that, but I would hope he would be embarrassed that they did. He was probably just making small talk with the reporter. What disturbs me and apparently others a bit more is that the newspaper gave more coverage to this story than they did Davis' City MLK event the day before. 399 words for this story to the 107 word caption under the MLK day festivities.

More seriously, with three councilmembers out of town simultaneously, obviously the city manager runs the city on a day-to-day basis, but what if there were an emergency? Apparently I was told in an emergency we do not need a quorum. So let's say in the unlikely event of a riot, we could have Lamar Heystek and Sue Greenwald decide by themselves that we need a curfew. I can only imagine what else they can do.

You know for years traveling on the plane, passengers were greeted with the instructions, "in the unlikely event of a water landing you can use your seat cushion as a floatation device." I'm sure there are 155 passengers last week glad that that message was drilled into their heads. Fortunately they didn't have to jump into the very cold Hudson River.

Shouldn't we have some kind of rule in this town that precludes three councilmembers from leaving town at the same time? Should we not require there always to be three councilmembers in town so we never have a situation where two councilmembers are calling the shot in case of an emergency? It was just last year in January that we had massive power outages and a city that was not ready to respond.

While I am at it, also wanted to comment on a blurb from Bob Dunning in his column last night.

"FIREFIGHTER ABUSE - my friend Larry writes to say he read in this very newspaper that 'the firefighters had to sit and wait until midnight to hear the summary of the Grand Jury report because it was preceded by 70 speeches concerning a council resolution to end the violence in Gaza.'

That's what happened, Larry - 'Hey, if the Davis City Council is going to take over running America's foreign policy, couldn't it at least adopt Obama's new policy of 'no torture.' ' - well said, my friend -"

First of all, in retrospect, I think the city should have pushed back the discussion on the Grand Jury report given the late hour as they did with the two workshops including the budget workshop that ought to be a huge priority at this point in time.

But second, no one forced the firefighters to sit and wait until midnight. They were not required to be there. In fact only two of them spoke--the fire chief and the union President. They were there for effect and to remind certain councilmembers that they had worked to get them elected and suggest in a not so subtle way not to let them down.

There is more. This notion that the Davis City Council is running foreign policy is preposterous and irresponsible. They are doing no such thing. As Souza pointed out last week, the Davis City Council is the closest body to the citizens of Davis. They are our closest representatives in Government. They are not running foreign policy, they are acting as the voice of the citizens, representing our values to other bodies in government that do not meet in our town.

What we saw the other night is that this is a community that is divided on a key issue in our time. This is a value to the community and now the Human Relations Commission tonight will take up this item and see about creating the type of community forum that can help bring our community together and bridge the gap.

I literally spoke with hundreds of people on Tuesday throughout town at various parties and this was the most common topic of conversation. It is an issue that needed to be addressed. I agree with council's ultimate decision. The council cannot speak for a divided community and should not. And thus discovering the divisions as they did on Tuesday night, they pulled back and realized that a letter was not the appropriate solution at this time and on this issue. But that does not mean this is a topic they should not have discussed even if it meant the delay of vital city business until after three councilmembers came back from having their fun and frivolity in Washington, DC.

If that display of democracy meant this blogger had to be up until 2 am and get only three hours sleep, that's part of the duty. If the firefighters wanted to impact public policy and had to stay there until the wee hours of the morning, well poor them? Give me a break. These guys are getting paid big time by this city, they can wait for their meeting like the rest of us if they choose, keyword is CHOOSE, to attend.

---David M. Greenwald reporting

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

One Hundred Muslim Students Flood City Hall Demanding Resolution on Peace in Gaza

At just after 6:30 pm on Tuesday evening, almost immediately after the Davis City convened their regular agenda, a group of at least one hundred mainly Muslim students flooded community chambers in Davis, quietly and politely holding signs urging action on what has now been over a week long war in Gaza that has seen hundreds killed.

During public comment, one-by-one, the students spoke out about what they saw as atrocities of innocent women and children and civilians being killed by military action by the Israeli army.

Their message was simple--they want the violence to stop. They recognize that the city council cannot do a whole lot, but they want the council to write Senators Boxer and Feinstein, Congressman Mike Thompson, and most of all President-elect Barack Obama and ask them to do what they can to make the violence stop.

With literally dozens of students wanting to speak but a long agenda ahead of them, Mayor Ruth Asmundson tried to cut off public comment after 15 minutes. This clearly angered and frustrated the students, but also some of Asmundson's council colleagues.

Councilmember Stephen Souza explained to them that they could only listen to them this evening, they could not take action on anything by law. They would at the end of the meeting be able to discuss putting a resolution on the agenda for next week however.

When Mayor Asmundson attempted to cut off speaking however, Councilmember Sue Greenwald interrupted with a point of order. After brief discussion. Councilmember Lamar Heystek moved to allow the students to speak for an additional 15 minutes. Councilmember Greenwald seconded the motion and they were joined by Councilmember Souza in a 3-2 vote to continue public comment.

An additional 10 to 15 students spoke in that time. Many of them were in fact Palestinian. Some of them still had family and friends there. One pointed out that more Palestinians have been killed in this operation in the last week and a half than Israelis have been killed in total for the last seven years (and frankly it's probably longer than that). The Israelis have used ongoing rocket attacks to justify their operation, but the response has been disproportionate to the threat. Palestinians, many of them innocents, are now trapped in Gaza, unable to leave and unable to stop the killing.

The students pledged to return next week and to continue to return until the council passes a resolution to write a letter.

During the long range calendar discussion at the end of the council meeting, Stephen Souza moved and Councilmember Heystek seconded a motion to put a resolution on the long range calendar. It was supported unanimously. Councilmember Greenwald recommended a subcommittee work with the students to draw up an appropriate resolution.

I spoke very briefly at the very end of the meeting to recommend to the council that their message deplore all violence--violence against the Israelis and violence against the people of Gaza. It was agreed.

Last week, I expressed my views on the situation in Gaza. Frankly, it has gotten worse since then. I oppose all violence and believe in non-violent means to resolve conflict. To me, Hamas perpetrated wrong by launching rocket attacks on Israeli cities, however, Israeli response has been completely disproportionate.

Moreover, I believe in democracy, small d. I think it was wrong to try to cut off discussion last night and I applaud the three members of council who extended the length of public comment. There are times when the council needs to allow segments of the community to speak. It was telling during the discussion on wood burning stoves, that two members of the public spoke and applauded the students for their activism, regardless of whether or not they supported their exact cause. It definitely made an impression on members of the public who were there for another issue.

Finally, many have complained about the council's use of resolutions on matters that do not directly impact them. What became clear Tuesday night was that the council in many ways serves as the point of first contact for aggrieved citizens. For the students it was their outlet to express themselves, to give themselves a voice, to enfranchise themselves in a way that without that vehicle they would not be able to directly access their government. From that perspective, perhaps we need to look at the city council a bit differently. They do not have direct say over other branches of government, but they are in many ways people's points of access along with their representatives in Congress and the Senate.

It was a valuable lesson in civic activism that all could learn from and it was unfortunate that one of the lessons they learned was that some were trying to silence their voices, not out of malice but because there was a heavy agenda this evening. I applaud the three members of council who voted to give the students a voice for an additional fifteen minutes. I spoke with the students afterward and it is clearly very important to them. Their persistence and willingness to petition their local government on issues that affect them, their families and friends is impressive and gives me hope for young people who will be running our government in the future.

---David M. Greenwald reporting

2008 Vanguard City Council Scorecard

Here is the Vanguard's 2008 City Council Scorecard. For the first time, the Vanguard has gone through 20 of the most important votes of the year and rated each council member on the basis of how they voted.

(click on top right to view full document)
Davis City Council Scorecard

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Discussion

No one got a perfect score this year. Councilmembers Sue Greenwald and Lamar Heystek both got a 95% score however, their only blemish was voting to put the charter on the ballot. The Vanguard ended up coming out against the charter based on its overly broad construction that allowed the potential for too much power by the council down the line.

The most interesting development of the year dovetails the article that ran two weeks ago, Power Shift on the Council: Souza Emerges As Power Center, where we see Councilmember Stephen Souza clearly emerge as the middle ground on the council with an even 50% voter rating. Indeed this is only the tip of the iceberg.

On 15 of the 17 non-unanimous votes, Souza votes for the winning side. The only two exceptions were both abstentions. Both were pivotal abstentions. The first, he and Don Saylor abstained on LAFCO allowing for the motion to exclude a number of properties from LAFCO to pass by a very unusual 2-1-2 vote. Later, his abstention on the issue of the Ogrydziak re-design of a B street property meant that the project would be denied for a year, a decision that earned a strong rebuke from his colleague and often-ally Mayor Pro Tem Don Saylor.

Councilmember Souza's shift on the council came rather suddenly as evidenced by this voting chart. Up until September, Councilmember Souza voted for the Vanguard's preferred position just three times, and two of those occasions that was part of a unanimous vote. In his last eight votes, all since September 1, he voted with the Vanguard 7 of 9 times, one of those was a key abstention on the Ogrydziak property, which may as well have been a vote with the Vanguard. The only exception was casting the deciding vote to go ahead with the value engineering consultant on the water issue while at the same time pushing the council to look for alternative solutions to the water issue.

On the far end of the spectrum, both Mayor Asmundson and Mayor Pro Tem Saylor scored a 25% and a 21% respectively. Three of those votes came on unanimous votes. Mayor Asmundson joined her colleagues in 4-1 votes against Saylor on the issue of the New Harmony CEQA which referred staff to examine the health issue more and on Lewis Properties which authorized an equal EIR. Mayor Pro Tem Saylor's lone non-unanimous vote with the Vanguard came in his opposition to the Charter City Proposal.

The scorecard however, shows that the council has shifted. The Vanguard was on the winning side of 11 of the 20 votes. In the last eight votes, the Vanguard was on the winning side of seven of them. There has been a very strong shift toward the middle for the council and that has clearly been led by Councilmember Souza.


Methodology

Part of the tricky aspect of grading the council is that a large percentage of their votes come on non-controversial issues. Thus to some degree, these scorecards understate the amount of agreement between the Vanguard and members of the council on the general agenda.

However, we were primarily interested in how councilmembers voted on the big issues facing Davis. We did not select out unanimous votes completely however. We chose three on big issues: political sign ordinance, woodburning, and the Grande Property. Each of these have either been a long time coming in the case of the first and the last, or an issue that will end up being a hotly debated issue down the line in the case of woodburning.

For the most part, we did not select intermediary votes on issues. Thus in general, we graded on the final vote rather than substitute votes. This helps increase for instance Councilmember Stephen Souza's score because he sought out compromises that were not completely the preferred position of the Vanguard, but were far better than the alternative.

Finally, abstentions were counted as though they were absent, no vote either way taken out of the total. So Mayor Pro Tem's votes were averaged out of 19 and Councilmember Souza's out of 18.

---David M. Greenwald reporting