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

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

Commentary: City Manager Bill Emlen's New Contract

For those that like to criticize the Vanguard for picking favorites, something that indeed occurs, here is a deviant case. In general, the Vanguard has been supportive of the efforts of DJUSD Associate Superintendent and Chief Budget Officer Bruce Colby. He has helped cleaned up to a substantial degree the mess left behind by his corrupt predecessor Tahir Ahad.

The Vanguard to a large degree credits the efforts of Bruce Colby for keeping the district afloat last year financially and putting the district in position to be able to possibly ride out the next year and a half without a slew of pink slips. In fact, if you look at the article below, without the efforts of Mr. Colby, we would likely be telling a very different story.

On the other hand, the Vanguard has been in general, particularly critical of Davis City Manager Bill Emlen. We can look at his recent handling of the Grand Jury report investigation into the fire department as an example of clear mismanagement. The list can go on and on from there.

However, the Vanguard does indeed need to give Mr. Emlen relative praise compared to Mr. Colby in terms of the handling of their own contract extensions.

Bruce Colby has already drawn criticism from this blog for his taking what amounts to a 5% COLA increase on an ongoing basis during a time when his teachers will once again get zero cola, and during a time when the district will once again have to tighten its budget.

Moreover it seems that district felt that if they did not raise his salary, Mr. Colby would be looking elsewhere and the district may find itself doing a CBO search during these economic times. The district is already without a full budget office staff, to have to find a replacement CBO at this stage would be devastating.

So it seems we can support the job effort but not the approach of Mr. Colby. I write that as one who genuinely likes the guy and thinks he does a very good job.

The bottom line here is principle not the money itself. A 5% pay increase is not going to make or break the district's budget. But the principle of the matter is important as is the loss of flexibility. Essentially, Mr. Colby's raise requires his own office to operate unstaffed in order to accommodate increases in his salary. In short, he's doing more work for the additional pay, the question is whether the district will regret the loss of flexibility in the future.

On Tuesday night, by contrast, we have City Manager Bill Emlen taking the opposite approach. Mr. Emlen is basically saying what we believe Bruce Colby should have said, in light of the current fiscal crisis, Mr. Emlen is forgoing a cost of living adjustment and a merit increase. Mr. Emlen will receive the same base salary as he did last year.

Not that he is going to the poor house with his $158,000 salary. However, on a comparative level, Mr. Emlen is making considerably less than many of his counterparts and certainly than his counterpart with the school district, Dr. James Hammond (let alone Mr. Colby).

We do take some issue with the city council however. Mr. Emlen once again has had the time frame extended by which he would have to relocate to Davis from Vacaville. He now has until June 30, 2012 unless the city modifies the city code requirement for the city manager to reside within the City.

Mr. Emlen has now been city manager for two and a half years. The current claim is the drop in the price of the housing market and therefore the loss of money. However, that is of course a recent excuse. Frankly, this is not the people of Davis' problem.

It was suggested in the Davis Enterprise article that Davis has not suffered from a loss of service based on the fact that Mr. Emlen does not reside in the city. First of all, how was that study performed and quantified? Second and most importantly, this is a matter of principle and following the current laws on the book.

Nevertheless, this is largely a side issue. The city manager has set the tone at least for now, that he is not going to be asking for more money during tough economic times.

The larger question though goes well beyond the tens of thousands in dollars in the midst of a budget deficit that will extend into the millions that the city manager saved the city. The larger question is whether Mr. Emlen can deliver for the city good strong employee contracts that will lead to a sustainable budget into the future. The larger question is whether Mr. Emlen can do a better job of handling crises that arise such as the Fire Department Grand Jury investigation.

The bottom line here is that while we applaud one single aspect of Mr. Emlen's conduct, namely his professionalism with regards to his own contract, we have to question and somewhat harshly the overall job he has done.

At the same time we applaud the job that Mr. Colby has done, we question his priorities when it comes to his own contract situation.

---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

Examination of the Use of the Union Hours Bank by the Davis Fire Department

One item issued forth in the investigation by Bob Aaronson that was not contained in the Grand Jury report was the issue of the Union Bank Hours.

The Vanguard had received an anonymous tip about the fire department usage of the union bank hours that alleged that they were using the hours for political activities. As we shall see, the use of union bank hours for political activities would be completely inappropriate.

The anonymous tip read:

"Check out Union Hour Bank and ask what Firemen are doing while on this time. The answer is Union stuff. Campaigning for Angelides, Against Prop 75, Serving and consuming alcohol for politicians, Electing R.Weist to CPF District President (The City sent 6 Firefighters to serve as Bartenders for this event) R.Conroy there as well."

Union Bank Hours and their usage is laid out in the city's MOU with the firefighters. From the city's MOU, here is how the union hour bank works:

"CITY agrees to deposit 24 hours per year ( on July 1, or first business day thereafter) for each participating Firefighter and Fire Captain for deposit in the Union Hour Bank. 70% of time use of Union Hour Bank time shall not incur overtime except with the approval of the Fire Chief. The CITY will provide to the UNION 30 day advanced notice on special training needs and UNION members agree not to schedule Union Hour Bank business during the identified special training. The CITY concurs that course selection and location is at the prerogative of the UNION and they shall provide 24-hour notice to the department for any Union Hour Bank absences. Absences will be charged at straight time. UNION agrees that total Union Hour Bank accrual and carry over shall not exceed two years worth of Union Hour Bank contributions."

The usage of the hours are also laid out in the MOU:

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

The Vanguard asked HR Director Melissa Chaney the purpose of these hours. She told the Vanguard that it was basically for the purposes of training and other union specific activities. She was further asked whether it would be appropriate for the union hour bank to be used for political activities. She told the Vanguard "absolutely not" and elaborated that all political activities must be performed off-duty and without the use of city money.

The Vanguard filed a public records request for the union hour bank time sheet. The Vanguard received a general list of how union hour were alotted and how much was alotted overall. However, as the response below explains, the city does not track the usage of these hours.



Here is the alottment of union hours that were used since 2004:



The Vanguard then turned over this information to the independent investigator for follow up.

In the report released by Bill Emlen, it is unclear whether there was annecdotal evidence to support the anonymous tip. We suspect much as the case in the issue of favoritism and retaliation that the investigator simply lacked the time and money to follow up on leads. However, the report is suggestive of a basic problem of lack of accountability.

Two findings in particular draw our attention.

This is from Bob Aaronson's report:

"Union members asserted that, for the most part, the union had complete discretion on how it chose to use/allocate these hours."

As Aaronson points out this runs against the city's MOU which very narrowly prescribes the intended usage for these activities as being "SOLELY to provide education training and development opportunities..." {emphasis added}.

Moreover, as our public records request indicates, the city does not have records on how these hours are used.

"As I understand it, the union does not maintain records of how these hours are utilized and the City has never requested an accounting from it."

The latter being a very consistent pattern within this city as to the lack of accountability and records keeping.

City Manager Bill Emlen writes:

"Because the current Fire MOU stipulates specific acceptable use of this time, the lack of a written record is problematic. Currently, all requests do go through the Chief but the process is strictly verbal. While there is no indication in the investigation that there has been improper use, the lack of a written record is problematic. Effective immediately and for audit purposes, the Chief will be required to keep written records of requests adequate to address the MOU limitations on Union Bank Hours. This information will be forwarded to the Human Resources Division to monitor purpose and hours usage. The City may also discuss union bank hours further during upcoming negotiations with the fire union."

Let us focus in on this sentence again:

"While there is no indication in the investigation that there has been improper use, the lack of a written record is problematic."

Again, this appears to be a case where the investigation simply was not able to look into potential allegations rather than a case where allegations were explored and refuted. This suggests that we really do not know if the union is improperly using city resources for political activity.

An indignant Chief Rose Conroy spoke at council to suggest that these hours are tracked--she said that she has to sign off on their usage and that they are tracked, she simply needs to now add the additional step of recording their usage.

With all due respect to the Chief, she has a very different definition of what it means to track the usage of hours than I do.

Even if the usage of union bank hours was completely appropriate--and frankly there is no indication that that is the case--this practice is problematic both on the part of the Chief for not meticulously tracking how city money is being spent and by the city's HR department for failing to account for the use of city money. This is a pervasive problem within the city that needs to change. There needs to be much greater accountability than we currently have.

---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

City Manager’s Handling of Fire Report Undermines Investigatory Process

Davis City Council Never Sees Unredacted Report from City Ombudsman Bob Aaronson

The City of Davis spent $35,000 on an independent investigation of the fire department, conducted by Bob Aaronson, who mostly serves the city as a part-time police ombudsman. However, given the decisions made by City Manager Bill Emlen and City Attorney Harriet Steiner, who may be the only people aside from Mr. Aaronson to see the full unredacted report, one might question what the purpose of this was.

The logic behind the independent investigation was to have a neutral third party investigate the allegation that arose from the Yolo County Grand Jury Report. Bill Emlen, as city manager, is the individual responsible for the conduct of those who serve under him, such as Fire Chief Rose Conroy and those under her supervision.

The Vanguard spoke with Mr. Emlen on Friday. He indicated that the City Council was only allowed to see a redacted version of the report. However, the Council was not allowed to take the report home with them and only allowed to read it in his presence.

The public has not even been allowed to view the redacted report. All the public has at its deposal is a Staff Report written by the City Manager himself that supposedly cites Mr. Aaronson’s conclusions and excerpts from the Ombudsman’s report itself. However it is framed and written by the City Manager.

The important question is why the elected representatives of Davis voters have been denied by two appointed city officials the ability to read the full report. Not one person with any direct accountability to the voters has been allowed to review the report.

Bill Emlen told the Vanguard that allowing the City Council to see the report would involve them in personnel matters and would expose the city to potential lawsuits by employees. However, several people with city attorney experience that the Vanguard has spoken with have questioned whether this is a realistic fear. For one thing, elected school board members are allowed to view personnel files without such risk. Moreover, it is unclear whether or not the city has ever been sued for this kind of matter.

Furthermore this brings up the question as to whether the City Councilmembers should be treated in the same manner as members of the public in terms of their ability to review personnel files. That is the position that the City Attorney takes in this regard.

It seems somewhat obvious that a City Councilmember is not simply another member of the public. And moreover, that if the only true power that they possess in matters such as these is the power to hire and fire the City Manager, then how can they properly evaluate the City Manager unless they have some mechanism of oversight? Specifically whether the City Council can judge if the City Manager can properly evaluate and manage employees under his direct and indirect supervision.

This might all be a moot point if the City Manager’s report faithfully communicated the findings, tone, and spirit of the independent investigation conducted by the Ombudsman and only removed from it references to personnel matters. However, there appears to be only three people capable of making such an assessment and only one of them does not have a vested interest in non-disclosure and that would be the independent investigator himself.

Bill Emlen told the Vanguard on Friday that while he had sent Mr. Aaronson a copy of the redacted report, he had not spoken to the Ombudsman in at least two weeks. Mr. Emlen did not seek Mr. Aaronson’s approval or input on this Staff Report written solely by Mr. Emlen and reviewed by Ms. Steiner nor did he seek the approval or input on the redacted copy of Mr. Aaronson’s original report and findings which were shown to the Councilmembers. Mr. Aaronson has not been asked to sign off on either document.

In other words, we have no idea at this time if this Staff Report is consistent with the findings and report that Mr. Aaronson submitted to the City Manager, Bill Emlen.

The good news for Davis residents is that Mr. Aaronson will attend Tuesday night’s meeting where the findings of this report are presented to the Davis City Council and the public. The City Councilmembers will have a chance to ask Mr. Aaronson directly to describe whether or not this Staff Report is an accurate depiction of the one he submitted nearly two months ago to the city manager.

Unfortunately, the Vanguard has no confidence that this has occurred. There is absolutely no transparency, no accountability, and no oversight of this process by anyone without a direct stake in the outcome of the findings. The elected City Councilmembers and the public are forced to take the City Manager and City Attorney at their word that this is an adequate representation of Mr. Aaronson’s report.

To be sure, there may be valuable insight gained from an internal review of the Fire Department, however, from the standpoint of the City Council and the public, the $35,000 could have been better spent elsewhere if all Mr. Emlen was intending to do was act as the “gatekeeper of information.” From that perspective, he may as well have conducted the investigation himself and saved the city the added costs.

However, that perspective may change on Tuesday night depending on what Mr. Aaronson says at a public meeting and what questions are asked by the Council and the public regarding this matter.

Mr. Emlen expressed the hope that the public would have confidence in how this matter has been handled and satisfied that the City conducted a thorough and rigorous review, that they have found a number of problems, and that the City has moved quickly and swiftly toward resolving these problems.

I say to my readers today that I share no such thought and I give Mr. Emlen and his handling of the process no vote of confidence.

The issues that the Grand Jury report was able to bring forward appear to have been known for some time by those in the fire department and perhaps the city manager’s office itself. Many of these things either occurred on Mr. Emlen's watch or continued on his watch. The pattern of the City not having proper oversight and accountability procedures has been continuous through the Vanguard’s various investigations. The fact that the City does not properly oversee the fire department probably means that the fire department is not alone in the type of problems that the Grand Jury uncovered.

Nothing short of full disclosure of this report to the City Council is an acceptable outcome at this point.Regarding oversight and accountability concerning this investigation, there is no longer any trust extended to this City Manager in his handling of his oversight duties and accountability directly to the City Council and by extension the people of Davis. The people of Davis deserve oversight and accountability. They have been provided with neither in this case. All we have are a couple of unelected officials who have constructed flimsy excuses in order to deny the Council the ability to fully read and evaluate what the Ombudsman uncovered during his lengthy and costly $35,000 investigation and whether City management has taken these allegations seriously and made effective corrections..

---David M. Greenwald reporting

Independent Investigation into Yolo County Grand Jury Report

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

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

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

At the outset the most important finding, and one never in question, is that nothing in this report and indeed the Grand Jury allegations is the work product performed by the department in question. Any issues regarding the fire department revolve around somewhat peripheral matters and in the larger scheme are a byproduct of the ongoing policy debate over spending at the city level and maximizing service at a cost-effective manner.

"Perhaps the single largest unaddressed area is the quality of service DFD provides to the city of Davis and its residents and visitors. The Davis Fire Department receives very, very high customer satisfaction results from community surveys. Our firefighters are skilled, experienced and welltrained. Their equipment and facilities are meticulously maintained. As well, Chief Conroy and the firefighters’ union have been increasingly successful in building a partnership unusual in the fire service, to the extent that the Davis Fire Department has become a model for fire service organizations regionally and nationally."

According to Bill Emlen's accounting of the investigation:

"The investigation identifies several areas that deserve attention. Those are described below, along with actions being taken in response. There are certain personnel related issues identified in the investigation that we will follow-up on and monitor as appropriate."

Here are some of the key findings:

• Management issues related to Shunning and Favoritism.

Mr. Emlen's words:

"The report suggests that this is plausible, but there is no direct evidence to prove that this has happened."

Mr Aaronson's words:

"There are still a group of employees who could reasonably be described as disgruntled… I found no evidence that either the Chief or the union explicitly directs anyone to be shunned or ostracized. Based on the interviews, any shunning is more a reflection of those employees that have become so polarized that they have become ‘unpleasant’ to deal with, and not as a punishment for being outspoken. To the extent that there is any shunning based strictly on opinions held, there is no evidence that any sort of formally organized conspiracy exists; if people aren’t talking to each other, it’s based on personal preference and not because someone told them not to."

We have no idea from Mr. Emlen's version what Mr. Aaronson said after the word, "disgruntled." It is important to recognize that even Mr. Emlen suggests the finding is "plausible" as in not disproved.

• Retaliation/Hostile Work Environment.

Mr. Emlen's words:

"Some employees claim they feel that retaliation is possible, but there is no proof or specific incidents uncovered by the investigation. There are no pending complaints or grievances from the Fire Department lodged with the city of Davis regarding retaliation.

Although the investigation is not conclusive in these areas, and we have no indication there will be any negative ramifications to individual employees in the future, the fact that the investigation has taken place warrants additional precautionary measures for all who participated in the process. All major disciplinary actions, including written reprimands, already involve the Human Resource Division. Effective immediately and for the next 12 months, the Fire Department will prepare monthly incident reports to include all disciplinary action beyond verbal comments for review by the Human Resource Division. We will also make it clear to all Fire Department employees that they are free to bring these issues to the attention of the City Managers Office if they wanted to elaborate on any issues raised. It is important to note that this has always been an option, but it is clear that some employees may have been hesitant to do so, given the relative independence that the Fire Department has had from city administrative functions. The fact that they operate in physically separate facilities also contributes this factor. In light of the investigation and the many Fire Department employees who participated, we just feel it is important to reiterate that they are free to bring forward issues without negative ramifications."

We never do get to see any of Mr. Aaronson's report. However, clearly Mr. Emlen felt this was a serious enough possibility to take precautions.

Grievances

Mr. Aaronson's words:

The Forum for Workplace Disputes Between Captains and Firefighters In the course (of) our discussions about the use of the grievance process, I learned…that the most recent grievances (“several years ago”) brought to the union for resolution with management weren’t even forwarded to management at all. Apparently, only grievances against chief officers are forwarded to management; grievances against a captain by (a) firefighter would be resolved by the union on its own.

In my view, a grievable dispute between a firefighter and her/his supervisor that arises out of their supervisor/subordinate relationship …should be subject to resolution by management. Regardless of his/her status as a union member, a captain supervising a crew member is employing a manager’s powers delegated to her/him by the department head; if the captain has overstepped, erred or otherwise offended a subordinate in so doing, it is managerial prerogatives that are being grieved against. Management, through the formal grievance process, should be afforded the opportunity to weigh in.

Mr. Emlen words:

"Effective immediately, such grievances will be required to be forwarded to Fire Department management and copied to the Human Resources office and follow City personnel rules, rather than be handled solely by the union. Employees will be reminded that they have several avenues through which they can lodge a complaint or file a grievance, including pathways that do not involve going to anyone within the Fire Department. We further understand the unique situation and dynamic created when the union leaders are also in leadership and/or supervisory positions within the Fire Department. Weighing the rights of the union and its members with the public obligations of the management of the Department will continue to be a balancing act."

• Union Bank Hours

This was not contained in the original complaint, we will have a separate story on this at some point backgrounding it. The bottom line here is that there were some allegations that arose about the misuse of these hours and the city does not keep track of how these hours are spent, which is problematic at best.'

Mr. Aaronson's words:

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

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

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

As I understand it, the union does not maintain records of how these hours are utilized and the City has never requested an accounting from it."

Mr. Emlen's words:

"Because the current Fire MOU stipulates specific acceptable use of this time, the lack of a written record is problematic. Currently, all requests do go through the Chief but the process is strictly verbal. While there is no indication in the investigation that there has been improper use, the lack of a written record is problematic. Effective immediately and for audit purposes, the Chief will be required to keep written records of requests adequate to address the MOU limitations on Union Bank Hours. This information will be forwarded to the Human Resources Division to monitor purpose and hours usage. The City may also discuss union bank hours further during upcoming negotiations with the fire union."

• Political Activities and Donations.

Mr. Emlen's conclusion:

"The Grand Jury Report suggested potentially inappropriate political activities and donations made by firefighters and the union. Firefighters, as members of a union, have an absolute constitutional right to participate in activities and provide donations, provided they do not do so on City time or as official representatives of the City. The report finds no instances of wrongdoing and any changes or policies put into place are those for the union, not the City, to consider."

• Promotion Process.

One of the key findings here is that while the fire department apparently followed the prescribed protocol, that protocol is inherently problematic.

Mr. Aaronson's words:

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

He continues:

"The Rule of Three vs. ‘The Rule of the List’

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

Mr. Emlen's synopsis:

Mr. Aaronson’s findings included:

• Current process not adequately transparent to the stakeholders
  
  
• Multi-faceted assessment center should do more than to determine minimum qualifications. Otherwise, abbreviated assessment center should be utilized.
  
  
• Final rating portion of process was arbitrary.

His recommendations include:

• The determination of the candidates’ ranking based on training, education, and performance ought to be completed by some manager other than the ultimate decision-maker, in order to minimize the potential perception that the process, despite rigid assessment rankings is ultimately overly subjective.
  
  
• Only the top three to five candidates ought to be forwarded to the decision maker for a final decision.
  
  
• Records generated in the course of the promotional process should not be destroyed by the department or its managers.

Mr. Emlen:

"On this issue, it is important to note the process followed under the recruitment highlighted by the Grand Jury was in accordance with established procedures. It is also important to note that candidates selected were well qualified for the position. That said, the report does a good job of identifying why the current process could be improved for future recruitments with respect to clarity and minimizing questions of subjectivity in the final determination.

I concur with the investigation that improvements to that process can and should be made to refine and strengthen it. The Human Resources Division will work with the Fire Department to consider the above recommendations or other changes to the current promotional process to address the concerns and finding outlined in the report."

One point of question is that if this was such a flash point and Chief Conroy knew it was a flash point, why has this issue not been addressed far sooner?

• Off-duty Sleeping in the Station by Inebriated Firefighters

Aaronson's words:

"A subcategory of this practice has been permitting intoxicated off duty firefighters to return to the station to sleep instead of driving under the influence.

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

The problem is introduced when the rule permits off-duty intoxicated firefighters to return to the station rather than be forced to navigate their own way home. While no one wants anyone to drive under the influence, the City is not providing beds to other intoxicated people, only off-duty firefighters."

Mr. Emlen:

"This practice, while understandable from a personal and public safety perspective, is still an unacceptable use of public facilities. It does not appear to have occurred very often, but any occurrence is problematic. The City’s personnel rules, which provide that no employee shall be inebriated at the work site, will be enforced and off-duty firefighters will not be permitted to be at the station while inebriated. The Fire Chief is aware of this and is in agreement. Like any other city employee, firefighters will be expected to utilize other options, such as local hotel accommodations, taxis or designated drivers. Off-duty firefighters will still be permitted to sleep at the station before or after shifts when they have additional department-related activities to pursue."

• Badging

Lengthy excerpt from Aaronson's report:

"Two years ago, there was a clear perception amongst Davis police officers that drunken off-duty firefighters were a small, but visible presence downtown some evenings. On occasion, they presented enforcement issues to the officers. This problem has substantially diminished as a result of all of the following: the closing of the firefighters’ favorite bar; the union president’s having spoken to his membership about the problem; the attention that an incident received in the department after two firefighters were disciplined for an off-duty, intoxicated incident downtown; and the attention focused on the department as a result of the GJR.

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

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

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

In the law enforcement world, when an off-duty officers so identifies himself, it is called ‘badging’. ‘Badging’, which used to be somewhat common, is now very much frowned upon and frequently subject to disciplinary action. A peace officer is prohibited from trying to use his official capacity in order to gain personal benefit, including special consideration from on duty officers…I suggest it would not be unreasonable to enforce this rule in the fire service as well."

Mr. Aaronson's report apparently also made note that the fire department, like other city departments was behind on timely evaluations of its employees.

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

Mr. Aaronson:

"City’s Failure to Record Materials Turned Over to the Grand Jury Inexplicably, when, in response to the Grand Jury’s request, the City turned over records to the Grand Jury, the City failed to either make a record of what it turned over or even a second set of copies of the documents. This meant I was unable to ascertain what the Grand Jury had actually looked at."

There were also a number of factually disproven Grand Jury allegations. Chief Conroy's husband was not the former Union Vice President, though he was and is a member of the union. Staff has never provided child care for Chief Conroy. The issue of the retirement party had to do with the fact that the individual wanted certain employees excluded from the party. There were no employees who reported problems with their personnel files. 19% rather than 80% of DFD firefighters live in Davis.

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

---David M. Greenwald reporting

Independent Investigation of Grand Jury Report on the Fire Department Pushed Back Until January

Late on Tuesday night Bill Emlen recommended a change to the calendar on Ombudsman Bob Aaronson's report on the fire department. Mr. Emlen described it as a workload issue pushing the report back from the December 16 council meeting and instead to be carried over until January.

“I will talk with the council members individually regarding the review of the report.”

In addition to the workload issue, Mr. Emlen acknowledged the complexity of dealing with personnel matters.

"A lot of that has to with how we sort of sift through the personnel related areas versus the core issues that are related to the grand jury report."

However, he reassured council that this had nothing to do with withholding a major personnel decision. And he re-emphasized this is primarily about work load issues.

Councilmember Greenwald asked what Bill Emlen could share with the elected leaders of the city.

Mr. Emelen:

"What I’m telling you is that I’d like to have that discussion in a different form because I think we are at this point probably going beyond what we should in this form tonight."

Council was accepting of the delay though everyone expressed the desire to see this to a completion.

Mayor Pro Tem Don Saylor:

"I’m looking forward to getting done with this, because it has been far too long for everybody concerned.”

Stephen Souza agreed:

"I too would rather see it as soon as possible, it has been sitting around for a considerable amount of time… It was slated to be here tonight, it’s now on our long range calendar slated to be here on the 16th, the next meeting, and apparently you’re proposing to put it off until January.”

Council was more sharply divided on the issue as to whether they should see the full report or a redacted version.

Both councilmembers Sue Greenwald and Lamar Heystek were adamant about seeing the full version.

Councilmember Greenwald:

“I’d like to get a council consensus that we have access to all the information. The way our form of government works is that we’re responsible when we’re elected. Whereas on the phone you told me that we’re not responsible for personnel, we are ultimately, the buck stops with us. We’re responsible through you, but we can’t evaluate how well you’re doing your job with personnel if we don’t have access to all the information.”

She continued:

“I just think we should as a matter of principle, as a matter of procedure. It’s a matter of accountability in government.”

Councilmember Heystek requested of City Attorney Harriet Steiner that she explain any legal grounds for withholding of information from the council in writing.

"I do agree with Councilmember Greenwald, it is important for us to see the work product of the Ombudsman, this is the first major test of our Ombudsman and we’ve paid over $35,000 I believe for this work product, and I believe I deserve to see as a councilmember the contents. No one is wanting to pry or to be nosy, I think we want to know the quality of the report. It is important that we have the fullest context possible to be able to make decisions or give direction. I’m equally interested in hearing what the city manager’s interpretation of the findings are. But if there is some legal grounds by which we cannot view this information or not be privy to the report that was prepared at our behest, I would like to see a justification of that in writing. I really believe that as a councilmember I need to know why it is that information is being withheld from me and in writing."

However, both Mayor Pro Tem Don Saylor and Councilmember Stephen Souza disagreed.

"I think that it’s reasonable to make another point of view known here. That is to the degree that materials and information comes to the City Manager that is personnel related, we don’t look at the personnel files of every employee in the city."

The Mayor Pro Tem continued with a bit of his own John McCain, "that one moment"

"We actually employee those two [pointing at Harriet Steiner and Bill Emlen]. Those are the two we employ."

He continued:

"In terms of policy issues, in terms of behavioral issues that are addressed in a grand jury report, we should hear from the city manager and hear his report. How he has gathered information to arrive at the conclusions and findings that he is going to be presenting to us is his responsibility. Just so that’s clear, I’m interested in hearing from the city manager what his conclusions are based on whatever he has done to arrive at them. I don’t need to know what exactly was stated by any person, at every point in time."

Councilmember Stephen Souza agreed.

"I don’t need all fifty pages, I just don’t."

He continued:

"I don’t need to have the “he said, she said” full story. I don’t. I am not in charge of personnel, except for as Councilman Saylor said, we are in charge of two personnel, that’s who we’re in charge of, we hire and fire them. That is our main task from a personnel standpoint. When it comes to this matter, I want to know from our ombudsman, through our city manager, how he arrived at his conclusions, and give me the pertinent information so I can come to my conclusions about it."

Mayor Asmundson was in the middle, arguing that she wanted to see Bill Emlen's report first and then she would decide if she needed to see the entire report.

"I agree our city manager is responsible to us… He’s asking that this be put to January and staff has been busy with budget issues and trying to juggle other things… There are so many things that staff has been working on and I think that this is in the lower priority to the budget. Even though I think we need to hear about this as soon as the city manager is able to give us the report. Let’s wait for the report and see. If there are more questions about that then we can decide then whether we want the whole report or not. But I’d like to wait until then."

At this point, the council and city manager have now delayed the report until January. That means that the report will have been completed a full two months before the public is aware of the findings. Moreover, the council still has not seen the report either.

It remains my opinion that this has gone on entirely too long and that this process has been badly mishandled. At some point, hopefully we will know whether the very serious allegations that appeared in the Grand Jury report that was released in June are true and if they are, what the consequences will be.

---David M. Greenwald reporting

City of Davis Stares Down A Budget Deficit

At last night's Davis City Council Meeting, the city of Davis was presented data by Finance Director Paul Navazio that paints an increasingly bleak face on the city's fiscal situation. Once thought to be relatively immune to the rise and fall of the economy, the current economic crisis goes deep enough that Davis faces a $1.2 million budget deficit for this year and a $3 million budget deficit for next year.

The culprit is lower-than-expected property and sales tax revenues. For instance, the city expected a 6.5 percent growth in property taxes but they have only seen a 3 percent growth. Moreover, and just as devastating is what happened on the sales tax side where the city typically assumes a 2 percent annual sales tax growth but instead is looking at a 5 percent decrease in revenue from sales tax primarily coming from auto sales, gas, and restaurants.

A few weeks ago we reported that the city of Davis was looking for immediate cost containment which included a five-fold strategy of a hiring freeze, closer scrutiny of overtime, travel and training control, tighter control of contracts, and a limitation of non-essential spending.

The budget forecast for the next five years looks bleak for the city. With the $1.2 million debt for 2008-09 increasing to $3 million next year, $3.8 million in 2010-11, $4.49 million in 2011-12 and $5 million for 2012-13. Part of the problem is that the structural deficit that some have claimed the city resolved, has asserted itself.

The current year sees the need for continued cost containment measures with the balance of the gap being bridged through the use of the General Fund reserves.

Next year becomes critical with the need for expenditure reductions, service reductions, revenue enhancement, and state budget contingencies.

Navazio believes that the once time cost savings could save up to $900,000 which would require the city to eat up to $330,000 from their reserves. That seems rather optimistic on the face of it.

Unfortunately, the city did not provide PowerPoint slides (we believe that this would have been a great slide to show) but basically, police and fire make up about half of the general fund budget. The city is talking about a 5 to 7 percent reduction across the board in departmental budgets. A five percent reduction would save $2.2 million and a seven percent reduction would save $3 million. Of that between $400,000 to $600,000 would come from fire and $700,000 to $1 million would come from police.

The alternative would be for the city council, city manager's office, community development, community services, parks, and public works to take a 7 to 9 percent cut and allow police and fire to only take a three percent cut. The rationale for this is protecting public safety. That would place fire at a $263K cut and police at a $436K cut.

But again this really understates the budget hit we are facing. Last year we identified up to $13 million in unmet needs. These unmet needs were taken off the books so they were not considered part of the deficit and it appeared that the city of Davis had a balanced budget. These again include key infrastructure needs and repair work.

Because of the immediate crisis, they did not spend much time on the long-range financial plan update.

The first priority is the renewal of the half-cent sales tax which generates roughly $3 million per year in June of 2010. The second priority is to replace the parks tax, perhaps by 2011, since it sunsets in June of 2012. Finally they need to look at additional revenue options as well. One of their concerns to look at funding options prior to the sunset of the DJUSD parcel taxes.

There should also be a reminder that some proposed taxes do not include a variety of fee increases. The big ones are going to be water and sewer due to the capital improvement projects.

City Manager's Memo

On December 5, 2008, Bill Emlen sent out an updated memo to all city employees on the city's budget situation.

Here are a couple of key points the City Manager brings up.

"We have worked with individual departments on cost cutting measures including a hiring freeze, and reductions in various travel, training, overtime, and contractual service expenditures. Individually, these actions are relatively small but cumulatively they can add up to something substantive. They are important first steps, but it is clear that more work needs to be done. We are still determining how much savings were accomplished with these initial efforts. As I noted, current estimates are that revenues will likely be down about 1.5 million dollars this year."

Furthermore:

"In terms of our budget, we are now projecting that next fiscal year’s shortfall could be in the 2.5 to 3 million dollar range. Add to that the uncertainty over the potential impacts the State budget crisis will have on local government, and you get a sense of the potential challenge we will face with the FY 09-10 budget."

One of the strategies is to retain as much budget reserve as possible.

"Our initial goal is to retain as much of our current budget reserve as we can going into the next fiscal year. To accomplish this, we will need to continue to find ways to reduce expenditures this year. If we are successful, it does not necessarily solve the problem we face in 2009-10, but it does provide some flexibility to cushion some of the budget impacts we are likely to face, particularly if State shifts of local funds become part of the equation. That said, the type of deficits projected by our current budget forecasts make it unlikely we can balance the budget without reductions, and they may be significant."

Here is the red flag:

"In our budget instructions for next year, we are asking departments to develop reduction scenarios in the 5-10 percent range. This information will then be evaluated on a City-wide context considering such factors as equitable impacts among departments, Council priorities and extent of use of budget reserve."

Most of this backs up what was said at the city council meeting, but it underscores the severity of the problem. Council wants to look at recently allocated expenditures and evaluate program priorities.

The unfortunate aspect of this crisis is that even if they cut five to ten percent of their budget, that will just get them by until 2010. The long-range problem is that the budget deficits will increase rather than decrease after 2010. Complicating things are the impracticality of revenue enhancements from new commercial ventures at this point plus a tough credit market precludes other revenue enhancement that is not related to tax increases.

The city of Davis is far better off than other cities or even the state at this point, but the severity of the current crisis compounded with the questionable past accounting practices with $13 million in what is really some sort of deficit stored as unmet needs puts the city in a quandary in terms of how to continue to provide a high level of services to the public.

---David M. Greenwald reporting

Why is the City Still Sitting On the Independent Investigation into Grand Jury Complaints?

On July 14, 2008 the city of Davis official named Bob Aaronson, the city's police ombudsman, as the independent investigator looking into grand jury complaints that the Davis Fire Department had engaged in a variety and string of misconduct over the previous several years. The charges ranged from drunkenness on city property to a hostile work environment and a host of problems in between.

By all accounts Mr. Aaronson completed his investigation and turned in his report around four weeks ago, the second week of November. However, a scheduled city council report has been postponed. Originally scheduled for this week, it was nowhere to be found on this week's agenda.



In addition, it appears that Bob Aaronson will not even be in town to report to the council and hopefully the public on his findings and to be available to answer questions that will inevitably arise.

Why the delay? The Vanguard unfortunately was unable to connect with City Manager Bill Emlen last week. However, one suggestion that has surfaced is that they simply have not figured out how to handle the report given the sensitive nature of it.

More alarming is the apparent factor that the city council members have not been allowed to view it yet. Thus the elected officials of Davis have yet to make any sort of assessment of the severity of the report.

In part, we can sympathize with the city manager's dilemma. After all it is a tricky situation given the fact that people have come forward as whistle blowers and these people are in need of protection from potential retaliation.

On the other hand, the delay at this point is largely inexcusable. City Manager Bill Emlen was not suddenly dumped this report in early November, he had almost four months prior to work out the end game here--the end game being how to take a raw report and turn it into something the city council and the public could get in an expeditious fashion.

The longer this process continues, the more speculation will build and the messier this situation will become.

At this point, we have to believe that the news cannot be good for the department. If this were a mere exoneration, the city clearly would have released this report already.

We are left to speculate that perhaps the city is trying to bury results in the doldrums of the holiday season. A December 16, 2008 release might suggest that the city is hoping that people will see it and forget about it over the Christmas and Holiday season. On the other hand, it is perhaps more likely that this is just being mishandled. The resolution to this situation is likely not going to occur at a single city council meeting and therefore the situation will drag out beyond the holiday season anyway.

At this point, I want to pose two ideas for the public to think about.

Bob Aaronson's report in Santa Cruz criticized the police for spying on protestors and they also criticized the police department for a conflict of interest relating to the fact that the very official who ordered the spying, was the one who conducted the initial report. The decision in Santa Cruz was made early on based on that the report would be a public report, available for anyone. If you google it, you can find the report even now on the web. Why was this important? It insured transparency in the process. The public knew the outcome of the investigation and could draw their own conclusion.

This decision was made in advance. What appears to be happening in Davis right now, is that no decision was made prior to Mr. Aaronson completing his report. Now the city is bogged down in figuring out what to do about it.

What should have happened? Bill Emlen assigned this to Bob Aaronson in mid-July. When he did, he should have directed City Attorney Harriet Steiner to evaluate the legality of a variety of options given a number of different contingencies ranging from full-vindication of those mentioned in the grand jury report to full-validation of the report. In advance, the city should have made the determination of how to release the information whether it be the full-report, a summary, a redacted report. They should have already known when and how the city council would get to view the info. They should have already known when and how the public would learn about the results of the information.

From all indications, this has not happened. At this point in time, not only is the public in the dark about the fate of this report, but so is the city council. There appears to me to be no excuse for this.

The public deserves to know the outcome of this investigation, and so does the city council.

---David M. Greenwald reporting

The Trader Joe's Conundrum for Davis

Over the weekend the Davis Enterprise reported that the deal between Trader Joe's and Radiological Associates of Sacramento (RAS) had fallen apart. The deal was in place whereby RAS would vacate their current premises in the University Mall so that Trader Joe's could occupy that spot.

Now those negotiations have fallen apart.

According to the Enterprise:

'It's not going to happen,' said RAS attorney Steve Boutin. 'We've been working hard to make this a win-win for the city. There's not much for us to respond to, because they've (Centro) just said no. What we're going to do is urge them to give this another thought, sign the agreement we've all negotiated.'

Boutin said that he, RAS representatives, Centro representatives and Davis Mayor Ruth Asmundson sat down together in October and hammered out a deal that everyone agreed on.

But last week, Boutin received an e-mail from Centro that said the deal was off.

'We got a letter out of the blue in which we got cold-cocked by Centro,' Boutin said. 'They very simply said the deal was no longer feasible. They didn't provide reasons or specifics, other than to say they were afraid of overriding market conditions.'

Part of the problem according to the article is that Centro may be having difficulty getting financing given the economy.

But this is only the beginning of the story.

The excerpt from the article quoted above indicates that RAS representatives, Centro representatives, and the Davis Mayor Ruth Asmundson met together in October to hammer out a deal. However, according to the Vanguard's sources, the city council never authorized the Mayor do this or even was informed that the Mayor would be doing this. The issue was never discussed at the council and the council never authorized any sort of negotiations.

Meanwhile the organization, DANG! (Davis Advocates for Neighborhood Groceries) is not happy either.

On November 19, 2008, they sent a letter to the Davis City Council and City Manager Bill Emlen.

"We have watched with great interest the reports that Trader Joe’s may locate at University Mall, provided that Radiological Associates of Sacramento (RAS) relocates to a location in West Davis. Further, we hear that the City of Davis is playing a role in facilitating this transaction possibly through providing various financial incentives to any or all of the four parties.

This alarming turn of events, if true, causes us great concern because it would mean that the city is assisting a very successful international corporation to locate in a part of town that is not in need of economic assistance. On the other hand, our distressed
shopping center in West Davis –which is in dire need of help from the city –continues to be ignored.

If incentives are being provided, we request that you state specifically what assistance, if any, the city is providing to facilitate the Trader Joe’s / University Mall / RAS transaction. And if the city is indeed helping, we further state that the city should provide a comparable level of support to DANG’s efforts to secure a market tenant in West Davis. As we are striving to find a neighborhood market tenant we'd like to add those possible city actions to our list of incentives for them to open up in Westlake Plaza."

Community Development Director Katherine Hess told the Vanguard that there is no financial arrangement with Trader Joe's. However, she later clarified that point understanding that the incentives that DANG refers to in their letter are a reduction in parking requirements. She suggested that the city would be open to doing the same at Westlake if that would make a difference.

However, this misses the point. According to the traffic and parking analysis, the building of Trader Joe's would require a larger number of parking spaces at the University Mall in order to accommodate the increased amount of customers using the facility. However, the expansion of the facility to accommodate Trader Joe's will actually result in a reduced number of parking spaces available. The city is not requiring Trader Joe's or the University Mall to provide for those additional spaces. Instead they are arguing that the parking lot is under utilized at it stands now and that they would simply increase the enforcement against people using the lot who live in adjacent apartment buildings.

My experience in that lot has been that they do enforce those laws. At various points in time when I used the RAK on campus and tried to park at the University Mall parking lot I found a notice on my car warning me that I could be towed if I did similarly in the future.

Moreover, parking is not an issue at Westlake. The parking lot there is underutilized. A new grocery store moving into that location would not need additional parking nor face that parking requirement. Therefore, DANG! has a point that Trader Joe's has gotten a financial incentive to move into the only location in town in which they were willing to move. The University Mall is currently occupied and bustling. The same is not true for either Westlake which has been without a grocery store anchor since May of 2006. East Davis Manor has similarly been without an anchor. The city has bent over backwards to accommodate Trader Joe's and get them to come into an already occupied location. Meanwhile, what has the city done to help Westlake?

Contrary to suggestions, Westlake right now stands a very good chance of finding a grocery store that would be willing to come into that location. The city needs to, especially given the current economic climate, prioritize bringing in businesses to existing vacant spots. Yet the city has to this point done very little to induce new grocers to occupy this empty spot that threatens the rest of the shopping center.

As I have mentioned many times, I have never believed the University Mall is a good fit for Trader Joe's, even without the issue of RAS. The lot there is too small to accommodate the number of cars. During the winter months, the birds are problematic with their excessive numbers and droppings. Finally, the area of Russell Blvd between Anderson and Sycamore is one of the most congested in Davis. You have one of the two major east-west arterials linking up with a major north-south connector. You have the university traffic coming into town and going onto the west side of campus. You have the major bike traffic from Sycamore. Now you want to put a market that is going to attract a huge number of customers from across the city to a location that is already congested? It doesn't make a lot of sense.

Trader Joe's has taken an arrogant position that they will only move into that location. That also doesn't make a lot of sense. They seem not to understand that Davis residents would go to wherever the Trader Joe's was located. In fact, given traffic congestion at that location, it may do better in other places.

Despite the bleak tone of the article in the Enterprise, it still seems likely that some deal will eventually be reached, but the economic situation is one well worth watching as Davis looks to find other business and commercial suitors in the next few years.

---David M. Greenwald reporting