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

Examining City Council Goals and Objectives

The Davis City Council will have another public workshop this Friday. First they will conclude their workshop on "Improving Transactional Effectiveness" and then they will have a staff presentation on the status of council goals and objectives.

The council has eight goals and objective for 2007-08:

• Maintain and improve the infrastructure
• Achieve long-term financial stability
• Enhance the vitality of downtown
• Provide a mix of high-quality housing to meet community needs
• Conserve natural resources and protect the environment
• Ensure top quality fire, police and emergency services
• Ensure organizational strength
• Promote economic development

This article will look at some of the specific policy objectives under each heading to see where the council has succeeded at least in their own goals and also discuss things that should have been included but were not.

The big objectives under "Maintain and Improve the Infrastructure," deal with the water supply and the wastewater treatment plant upgrade. In both cases, the city has moved along about at the rate that they wanted to. Both of these projects are massive and will end up greatly increasing Davis residents' water rates. The key question right now is whether this is what the city should be doing.

Last year, the city council agreed to spend $50,000 to $75,000 upgrading the parks and facilities master plan. It took a reconsideration of an agenda item after the initial item was defeated, due to the absence of Councilmember Asmundson. Mayor Greenwald and Councilmember Heystek would have preferred to have spent that money on unfinished projects from the previous plan rather than updating the current plan with an expensive survey.

Missing from the list is any upgrade in the quality of the roads, the workability of some of the traffic intersections and traffic lights.

In terms of the next goal, "Achieving Long-term Financial Stability," the council had a workshop where they look at various revenue enhancements, mainly in terms of new taxes.

The big thing that they did not do was seek to look at areas where spending has greatly increased that will end up costing the city. One such area has to do with upper level employees pensions and health benefits. These current practices for people in upper management may end up either bankrupting the city in future years, or at the very least leading to a large cutback in other sorts of spending as the city needs to get on top of a wave of retirements.

The third goal, is to "Enhance the Vitality of Downtown." Here it does not seem that they have proceeded on a number of their goals. Moreover, the big one that they did proceed on was the 3rd and B Visioning Process. My concern with their direction on this and other projects is that they are looking for ways to revitalize the downtown that are threatening the character of the city and the downtown. Tearing down some of the more historic buildings in the 3rd and B district is going to do far more to destroy the character of the city than it is to help downtown. Moreover, they have enacted projects such as Target that threaten the vitality of downtown.

The fourth goal, is to "Provide a Mix of High Quality Housing to Meet Community Needs." This is an area where I do not think the city has done enough. They have appointed a Housing Element Steering committee. We shall see what that process yields. What this city needs in my view, is a commitment to developing housing that families and younger and new home owners can afford. Not just an allotment of "affordable" housing for low income people that are really limited equity homes. We're talking about moving away from the model that has produced $500,000 to $600,000 homes. That means producing smaller houses on smaller lots and greater density of that housing. However, this is nowhere to be found on the city's goals.

The fifth goal, is to "Conserve Natural Resources and Protect the Environment." They have a list of items, most of which I have not heard of and most of which I do not believe have been acted upon. They do talk about recycling and composting. But I think the city needs to go further here. They mention the Davis Greenway Concept that includes locally based sustainability farms at the city's edge, but there needs to be, in light of county proposals, an all-out commitment to ag land preservation. Second, there needs to be a push for more electric vehicles for in-town use rather than internal combustion engines. Third, there needs to be a stronger commitment to solar power in new housing and perhaps even incentives for existing homeowners to purchase solar panels. Fourth, as they do in the north, they should convert all city road signs to solar energy.

The sixth goal, is to "Ensure Top Quality Fire, Police and Emergency Services." Here they have achieved a good number of their goals. It took them much longer than anticipated but they got the cameras and computers fully operational and for the most part reliable. They hired a police chief. For my purposes the top needs of the city are that we need more police officers hired and on the streets. I would like the city to look into higher standards for training in exchange for higher salary. The city is looking into a fourth fire station, and while I understand some of the concerns of a fourth fire station, particularly with regards to money, the suggestion has been made that the taxpayers could vote on it. I think that's a reasonable proposal from my observations. I can also see the need for a city-owned ladder truck, especially as the city continues to build taller and taller buildings.

The seventh goal, is to "Ensure Organizational Strength." This deals primarily with city staff. As I have suggested previously, I just do not like the city manager driven model of city government. I think it leaves elected council members, especially those who are in the minority, without the resources they need to do a good job of representing their constituency. Reliance on city staff has proven problematic at times. So one of the things I would like to see are reforms and changes to the overall structure.

A goal that is listed on their list of goals is to have in place by 2008 a living wage ordinance for City contracts and contract workers. This was a suggestion made by Councilmember Lamar Heystek that I strongly support. Will the current council majority support this goal? We shall see.

Finally, and this all appears to be future oriented, "Promote Economic Development." So far, I think this has not been an area of success. The first item listed there, is continue to work to ensure sustainability of Westlake Shopping Center. It has been over a year since Food Fair left this shopping center, and amazingly the existing businesses have primarily survived. But I do not think the city has acted aggressively enough to maintain this shopping center.

Second, they mention Trader Joe's. Here I think the city has really squandered opportunities by allowing the situation at University Mall with RAS. I talked to councilmembers after the lawsuit was announced and they felt that people just wanted Trader Joe's and did not care how it got here. Since that time, I have spoken to many people on the street and on the blog and I do not sense that type of attitude. Most do not understand why it has to be where RAS is currently located and most sympathize with RAS. The city lost a lot of their leverage by providing a zoning change prior to an agreement between University Mall and RAS.

Third, is the pursuit of the business and high tech research park. This is the issue that was postponed from last meeting's agenda. It figures to be an interesting battle on the slow growth side as to whether it is better to develop that as a residential development or a high tech research park. The latter has gained more prominence since the Tsakaopoulos proposal has emerged, although that is mainly a proposal for housing developments in exchange for the Stem Cell Research facility, it is unlikely to be available without the housing development.

Finally, we can put the Davis Manor in the same position as Westlake Shopping Center. Both of these locations would make far more sense for Trader Joe's and other additions than the University Mall. The council is seeming to allow two key neighborhood shopping areas lie underutilized for a substantial period of time.

A number of the goals on this list are laudable if overly ambitious. However, my sense over the last two months is that much of these are taking place at the expense of the existing character of the city. I do not oppose housing development, vitalization of downtown, or economic development, but I would like to see plans that integrate these projects into the existing character, rather than what I think is a rapid destruction of existing character. Make no mistake, Davis is under siege in a lot of ways. The question for Davis residents, is "Do you want a city that continues to look and feel like Davis? Or, "Do you want a city that looks more like Fairfield, Vacaville, or even worse some of the more rapid growing Central Valley Communities like Elk Grove and Natomas?" These are the key questions we must ask ourselves as we try to go forward with many of these laudable and necessary goals.

---Doug Paul Davis reporting

Analysis: Asmundson's Attack on the Mayor Unfounded

The notion of civility was floated by Don Saylor in his Op-ed a few weeks ago. At the time, I pointed out in this space that Saylor was very quick to complain about incivility when he was on the receiving end, but he never ever said a word when it was either he or one of his council majority colleagues who were being uncivil.

Tonight the Human Relations Commission at 6:30 pm outside of council chambers will take up this issue at the behest of chair John Dixon. I am not certain how this relates to the charge of that commission, but it is quite apparent that for whatever reason Dixon is carrying the water on this for the council majority.

One thing that strikes me is the thin skin of some of the members of the council majority who at times have found insults and incivility where it was not intended or at least would have been better left unsaid. At the meeting last week we have such a case. Mayor Sue Greenwald at several points in the meetings expressed strongly her dissatisfaction with the length of the agenda, fearing that the meeting would go well into the night--and it did. City Manager Bill Emlen was insistent throughout that the length of the meeting was necessary. At no point did the members of the council majority disagree with the city manager.

Finally at nearly midnight, the mayor complained in a brief statement about the length of the meetings and accused the council majority of insisting these late meetings by limiting the number of nights that the council would meet. While Asmundson, Souza and Saylor took umbrage at this accusation, back in August and September, it was in fact, the express desire of the city council to limit the number of nights that they would meet. Souza in particular complained that he had never made such statements, however, he did approve of the meeting schedule that was set last summer that included fewer meetings on the long range Calendar. This was chiefly Councilmember Saylor that pushed that through, but Souza went along with it.

Sue Greenwald stated:

The public does not like meetings that go past 11:30 and I don't think we can make good decisions past 11:30 and yet the council majority has been consistently insisting that we have fewer meetings and that they run longer and the council majority is also has also been to be frank about it been going on and on and on with detailed questions... But the public doesn't like it when the meetings go to late and I'm trying as mayor to do a reasonable job in pacing out meetings so that they can be over by 11:30 and the council majority is insisting that they go on until all hours of the morning.

This prompted a very angry response from Ruth Asmundson.

Asmundson:

I'm sorry the council is not insisting it's just unfortunate that the mayor cannot run the meeting more efficiently... If we have a more efficient meeting then we can finish all these things.

Asmundson's charge led to a lengthy exchange in which heated words were said in all directions. The situation deteriorated at this point and I think needlessly so.

What I found most stunning about Asmundson's complaint that Mayor Greenwald did not run a more efficient meeting is that Greenwald had been consistently throughout that evening attempting to move the process along--pleas that for the most part went unheeded by any of the councilmembers--and that the vast majority of time was spent by the council majority and not the mayor.

This prompted me to do an analysis of how this meeting was spent.

I went back through the recording of the meeting and examined and computed the length of time that each council member took with their questions and with their comments and motions. Included in the respective councilmember's time is the amount of time a staff member spends answering their questions; however staff reports are not counted. I counted staff response to direct questions since this is part of the time being taken on each item that a particular member has control of.

I will also note that four consent items were pulled--two by Saylor that Souza wanted to pull as well, one by Asmundson and one by Heystek. The mayor did not pull any items.

Here is the total time spent on the consent items and then Items 5 through Item 8 at which point the dispute occurred.

Saylor	39
Asmundson	35
Souza	26
Heystek	25
Greenwald	18

As you can see, Greenwald probably was least responsible for the length of the meeting as she spent by far the least amount of time speaking during the meeting. Saylor and Asmundson were the most egregious in terms of their time usage. Both of them spent a considerable amount of time on the conflict of interest item.

In watching the replay of the meeting, there are three key things that used up a tremendous amount of time.

First, there was 30 minutes of public comment during the agenda item on Rancho Yolo.

Second, the Rancho Yolo agenda item was extremely complex requiring a number of different motions to approve and tease out the staff recommendations. That used up a tremendous amount of time.

Third, and this one is the one most attributable to a member of the council, Councilmember Saylor made a number of motions on the issue of conflicts of interest that cause that process to drag on much longer than it would have had they simply approved the staff recommendation.

None of these factors are attributable to the ability of Greenwald to effectively run a council meeting. Had the Mayor tried to interfere, the council majority would have given her a strong rebuke and rightly so.

Moreover, none of this should infer that any of these things should not have occurred or that councilmembers ought to speak less. I think the council needs to properly deliberate, my complaint would be simply that the agenda was too long and the items too complex to have as many items as they did.

Asmundson's complaint is simply not borne out by the facts as I compute them. The meeting did not go too long because the Mayor did not run an efficient meeting, the meeting went on too long because there were too many items and they were complex items and councilmembers took their time to deliberate.

The Mayor certainly at times does not run the most efficient meetings. At other times the Mayor is indeed combative. However, this attack upon the Mayor as being an inept presiding officer or taking up too much of council time is in this case simply inaccurate. The Mayor has had her good days and she has her bad days, but the criticism from the "Gang of Three" is unfair.

My reading of the council rules suggests that the Mayor should play a much larger role in the creation of the agenda than she has.

As I suggested in a blog entry last week, it would appear the presiding officer under Rosenberg's Rules would have much greater latitude:

"The presiding officer is responsible for preparing the agenda and order of the meeting, conducting the meeting and maintaining order."

If the Council Ground Rules is the authorizing document, the presiding officer would be responsible for preparing the agenda. There may be a more fleshed out version however that more fully explains this power. But using this right now as the document, I do not think the city manager is in compliance.

In practice it seems that the mayor does not have the power to agendize items at her discretion. This is in part a function of the city manager model. It is also in part a function of this being a minority mayor. However, at least according to the ground rules, this is not a formal arrangement of power.

Regardless, if Councilmember Saylor is truly interested in civility, he needs to take charge and admonish his allies, not just his perceived adversaries. I do not see that occurring, which is why his plea looks more like a political tool than anything intended to create meaningful and more civil dialogue in community discourse.

---Doug Paul Davis reporting

City Power Vested Strongly in Unelected Public Officials Harms Democracy

Towards the beginning of Tuesday evening's Davis City Council meeting, Mayor Sue Greenwald made note that City Manager Bill Emlen had produced a long agenda and done so over her objections. It was another potentially explosive situation on the City Council however Bill Emlen diffused it somewhat by suggesting that he felt it was necessary to cover these items at this time and that he took full responsibility for any length of the meeting.

Whether the mayor or the city manager was correct in this exchange, one of the important things that this incident reveals is where the power resides--and it is not with an elected official such as the Mayor. Rather it is the unelected City Manager.

A few weeks ago, the issue arose where the question was asked who had the power to write the agenda. My understanding is that the procedure is generally for the city manager to write the agenda in consultation with the mayor. In practice however it seems that the city manager writes the agenda and anytime he and the mayor disagree, he says that this is what the council majority wants.

At times it is not even clear that the city manager was getting his direction from the council majority. For example there was a long range budget workshop. The mayor wanted this workshop televised, as it took place in the council chambers, and yet purportedly the city manager was insistent that the council majority had wanted no television. And yet, when I actually spoke to a number of members of the council majority, they had no idea that such a decision had been made.

So what happened? It is far from clear, but it seems possible that the city manager made the decision on his own and when confronted simply assumed that the council majority would disagree.

Worse yet is that there seems that the mayor has little recourse other than to bring the issues forward in public--and if the mayor does that, she would inevitably lose more often than not.

Formally however, it would appear the presiding officer under Rosenberg's Rules would have much greater latitude:

"The presiding officer is responsible for preparing the agenda and order of the meeting, conducting the meeting and maintaining order."

If the Council Ground Rules is the authorizing document, the presiding officer would be responsible for preparing the agenda. There may be a more fleshed out version however that more fully explains this power. But using this right now as the document, I do not think the city manager is in compliance.

In practice it seems that the mayor does not have the power to agendize items at her discretion. This is in part a function of the city manager model. It is also in part a function of this being a minority mayor. However, at least according to the ground rules, this is not a formal arrangement of power.

The question I pose though is who should really have such powers to determine the items on the agenda--the elected mayor and elected body of the city council or the unelected staff and city manager?

We see this issue arise time and time again. For example at this past meeting, there was a proclamation to award PG&E recognition for their generous $10,000 contribution to the Street Smarts program. The proclamation read signed by Mayor Sue Greenwald. And yet in actuality, it was written by a member of the staff who obtained an agreement with PG&E in order to secure their donation. Did council have a say in this matter? No.

At the recent swearing in ceremony of the new police Chief Landy Black, we saw the city manager rather than the Mayor conduct the ceremony. A number of people who witnessed this event asked why the city manager was doing this? It is a small issue to be sure, but it is illustrative of just who has the power. Generally ceremonial tasks such as these, even in a weak mayoral system, fall to elected officials rather than city staff. That's part of the few actual powers that the mayor ought to have in such a system. I've never seen a city manager perform such tasks.

As I have mentioned on this blog many times, I also think it is problematic that the city council does not have their own staff. This means they must rely on the guidance and counsel of staff that has no direct ties or loyalty to them. This too becomes very problematic at times, especially for members who are in the minority on council.

There have also been several points when city staff has failed to properly advise and council the mayor and city council on public matters. Two such incidents come to mind--again both of these in and of themselves are minor things, but they are illustrative of the broader issue and problem.

At the Police Chief Landy Black swearing-in ceremony, the Mayor made some introductions of elected officials--which is a traditional courtesy at such public events. However, the mayor herself had to walk around and figure out who was there. This was clearly a job that staff should have done. This should have fallen to deputy city manager Kelly Stachowicz who was in attendance. Moreover, there were six visiting police chiefs from other jurisdictions at this event and no one informed the mayor so that she could introduce them on behalf of the city. This is staff's job. The mayor was not properly staffed. An elected official cannot be responsible for figuring out who is in attendance, that is what staff is there for. The staff should have ensured that these dignitaries were properly recognized officially by the city.

On a related note at the recent city council meeting this past Tuesday evening, the new Police Chief Landy Black was in attendance for the first time, officially as the Police Chief. Yet, somehow staff did not think to let the Mayor know that she ought to formally introduce him to the community as Police Chief. Moreover, not one councilmember thought to introduce Chief Black to the community at the meeting.

These types of errors are minor, but they are a bit embarrassing for the city.

This leads me back to my concern about ability for councilmembers to place items on the agenda. Councilmembers can request items on the agenda. The council can actually prevent these items from coming on the agenda. Informally so too can the city manager. What this means is that those in the council minority do not have the full ability to agendize items with staff support and preparation. Often they have had to place items on as city councilmember items--which means they must prepare and staff themselves. A portion of the Davis community who voted for these members is essentially somewhat disenfranchised because their elected representatives lack the ability to place items on the agenda.

While I understand that cities the size of Davis invariably use a city manager model of government which is a very weak mayoral system. It seems that more power is vested with staff than most cities I have seen. It seems that the mayor has very little power to create an agenda and even under the council handbook listed on the city's webpage, the Mayor ought to have more power to do so. Unfortunately, as a member of the council minority, it seems that the Mayor has little recourse other than to make a statement in public acknowledging her dissatisfaction with the current arrangement.

My question remains who should have the power, the elected council or the unelected staff? My position remains that wherever possible, the elected council who must face the voters should retain the power and direct staff to achieve their ends. Perhaps this is what is happening, but if it is, it is not happening in the public light and that is where these decisions need to take place.

---Doug Paul Davis reporting

Commentary: City Staff, Is the System Broken?

On Monday after my article appeared on the Employee Assistance Plan (EAP) situation involving a city staffer who gave false and misleading information to council about a 23 year city vendor, I received a call from a former city councilmember. That councilmember expressed both gratitude and frustration. It seems that during their tenure this was a frequent problem. The only difference back then is the no one bothered to report it. According to them, city staff would often give false information to council, sometimes it was intentionally so. Accurate information and alternative viewpoints were very difficult to obtain.

This problem is largest for those who are members of the minority faction. The majority often simply does not care how city staff operates as long as they get their agenda passed. Process goes by the wayside. At the same time, with a city manager driven system, the city council is almost and completely reliant on the advise and information provided by city staff. The council is not given their own staffers, as other systems of government including the County Supervisors provide. And while these employees are completely at-will and can be hired and fired with no cause given (as opposed to civil servants who have immense protections), it is only those who control the three votes that really have such power to force the city manager's hand.

It goes beyond simply a matter of city staff making mistakes. When we look at the water issue, one of the biggest problems is that city staff controls the flow of information to the city council. The water issue is a greatly complicated issue, as I discovered when I tried to wade through merely five years of public records on the subject.

A few things became evident from the public record. First, that city staff and not necessarily city council had vast control over the trajectory of policy. City council did pass by a 3-2 vote authorization to embark on alternative 5 in 2002. However, a stream of EIRs and MOUs led council eventually upon a very different path. City staff often had a larger role than council in guiding the trajectory of this policy.

Second, staff has been very reluctant, especially for the minority view, to provide them with alternative options. This was very clear last week when Mayor Sue Greenwald tried to push staff to provide her with answers to questions. Each time, the staff response was that we could not pursue this option. The Mayor wanted an answer to the substantive question, not an opinion on its feasibility. We should have an array of consultants that would give us different advice from the advice recommended by the staff and then the council can decide which is the best approach.

The problem of course in the case of water is that a councilmember simply lacks the expertise to understand the dynamics of the water supply and waste treatment plans. They have to rely not only on city staff, but also on consultants and lawyers to navigate through a very complex policy realm. Consultants and lawyers who are not always neutral bystanders and disinterested parties. That creates a situation where staff through their expertise serves as the gatekeeper of information and that situation puts a tremendous amount of power in the hands of an unelected city staff and removes a tremendous amount of power from the hands of people that the voters in this city elected.

Third as we have mentioned in past articles and commentary, this situation creates a perverse power structure where the City Manager is often deemed to be the chief power within the system. The City Manager not only holds the office space, controls city staff, and makes many if not most of the executive decisions that do not require council action, but the City Manager also has the power to structure debate and control the flow of information. While the City Manager answers to city council, in effect, the City Manager answers only to the strongest powers within city council, the council majority. In effect, as long as the City Manager does the bidding of the council majority, he is largely free to do as he chooses. This situation creates vast problems for council minorities who lack the power and leverage to have much say in the conduct and operations of city staff and the city manager.

More valuable even than numerical numbers is the flow of information. That flow of information is almost completely controlled by city staff working at the behest of the council majority. Without access to their own staff, the council minority not only has a numerical disadvantage, but they lack the ability and platform to be able to provide their own information to counter the message sent by the council majority.

At times, this puts the council minority at an even stronger disadvantage, because they do not even possess the information at times to counter what the council majority is doing. At other times, it has required members of the council minority to get independent assessments or do their own research. These are people who were elected by the same people who elected the council majority and people who are not being paid more than a token $500 stipend. This is not the way that these members of the Davis City Council ought to be treated.

It is clear to me that changes need to made in the structure of city government. As the complexity of governmental decisions increases, we need our council members whether they be in the majority or in the minority to be given a full array of options and alternatives so that they can make an informed decision. Unfortunately those needs are not being met by the current system.

---Doug Paul Davis reporting

Commentary: On Confidentiality and Its Misuses by Government

Recent events have brought the issue of confidentiality to the forefront. There are times in government when dealing with the issue of minors or personnel issues that confidentiality is not only legitimate but also necessary to protect the people involved. The dismissal of former Davis Police Captain Nick Concolino is one such use of legitimate confidentiality. He as a former at-will employee of the City of Davis is entitled to having the issue of his dismissal remain confidential. (Although if the city manager is serious about considering him for the new police chief position, the council ought to request he waive that right). That is a perfectly legitimate use. However, other recent uses by both the Davis City Manager and the Davis Joint Unified School District seem more questionable.

The hiring of a new police chief

Tuesday’s Davis Enterprise article cited just such a case where the use of confidentiality is questionable at best (and perhaps inappropriate according to our reading of the law): “Davis City Manager Bill Emlen declined Monday to identify the seven candidates by name.”

In fact, Emlen according to multiple well-placed sources has not informed the members of the Davis City Council as to who the seven candidates are. His rationale was that this was a personnel matter.

Personnel matters do receive a large degree of confidentiality protection. However, under almost no circumstances, are names of applicants or candidates for a job considered confidential. Indeed, as one person I spoke to pointed out, the university is actually required to hold part of their interview process in public at which point the names of those who make it to the presentation stage of the interview are divulged and those individuals have to present their research in front of the public in addition to the hiring department.

In fact, according to the public records act: Personnel, medical and similar files are exempt only if disclosure would reveal intimate, private details. (§ 6254(c)) Employment contracts are not exempt. (§ 6254.8). See also: California Government Code.

While I am not a lawyer, I would have to guess that the name of applicants is not exempt from the public records act, as revealing a name does not reveal any information that is intimate or private. City Manager Emlen then could be required to divulge this information to the public.

This issue also goes back to the heart of our city government model that was discussed last week. Who makes the hire of police chief? The unelected city manager. The city council itself has the power to hire and fire the city manager who then has the sole power to hire and fire employees. There is no transparency in this process.

More concerning is the implication that the elected representatives are being kept out of the loop. Again, some personnel matters I understand being kept from the public. What I continue to not understand is how they can be kept from the City Council who are representatives of the public. And in this case, this appears to be an abuse of confidentiality requirements.

The handling of the Harper Junior High harassment case

We have been reporting on the case stemming from a harassment incident involving a 13-year-old student at Harper Junior High who was harassed by 14 of his classmates because of perceptions about his sexual orientation based on the lifestyle of his father who is gay and lives with a partner of the same sex.

The school district and school board had a long meeting in public about this issue in mid-November where they discussed numerous ways that they were going to deal with it to prevent such occurrences in the future. Let me make this clear—I absolutely applaud those actions. There seems to be a misconception among some in the district and on the board that we are neglecting to include all the things that the District is doing to address the situation.

However, from day one, our main concern has been to get Zach Fischer back into school. And now we have this other kid who likewise we need to get back into school. We just do not believe that the District has addressed these concerns in a timely or adequate manner. Perhaps the District wants to counter this contention, they are welcome to correct this on the record at any point in time.

The school district is basically now arguing that they cannot talk about it on the news or in blogs because of confidentiality requirements. This is an argument or perspective that I simply do not understand. We do not need to know that a specific student, John Doe, has been suspended for three weeks or has an expulsion pending. That is a confidential matter and not our business.

However, if the school district is implementing a zero-tolerance policy for anyone who uses sexual orientation as a means to bully another student—how is that a confidential matter? Or if the school district offered to have an escort for these students between classes to ensure that they were not bullied—how would that be a confidential matter?

What seems to be happening here once again is that the school district is using the fact that there is a pending court case and the fact that these are incidents involving both students and teachers, both of whom are protected by such requirements—to avoid going on the record with a discussion about what is being done to prevent incidents from happening in the future both in general and with specific regard to this student.

Once again, this is an abuse of the confidentiality laws. They are using them not to protect the students or their employees but to protect the district. They are using and misusing confidentiality to cover up and avoid talking about their wrong doing. They undermine transparency in that way. We cannot hold our elected official accountable when they declare these matters closed or use a gag order to keep it secret.

Buzayan Case

This is precisely what we saw happen last spring in the Buzayan case. The juvenile justice system seeks to protect the identity of juvenile offenders precisely to avoid the type of situation that occurred last spring when the release of sensitive material was used to harm the reputation of a minor. A minor in this case who was cleared of any wrongdoing by the judge. Now, Councilmember Don Saylor, Ted Puntillo, Officer Pheng Ly, and Deputy District Attorney Patricia Fong all pointed out that the judge dismissed the case based on the civil compromise. Well it does not matter. In this country, there is a presumption of innocence unless someone is proven guilty by a court of law and when the District Attorney’s office chose to disclose these tapes they violated the rights of a minor to keep such matters confidential.

The District Attorney’s office got upset because the minor and her family were able to talk about the case, but not them. Well that’s how the law is designed and as a public agency that goes with the territory. Under the law, the juvenile and her parents have every right to talk about the case. The law is set up to protect the minor from a smear campaign not to protect the prosecutors and law enforcement from charges of misconduct.

All three of these cases now represent a misuse of confidentiality laws to protect a public agency from charges of misconduct or prevent scrutiny by the public of their actions. We as a community should demand transparency in our government and we must recognize that government officials operate under a public trust that does not exist for private individuals. That means there are different standards of behavior that public officials need to adhere to that private individuals may not. At times that may make it more difficult for the public agency to deal with charges of impropriety, but that is the cost of doing business in a free and open society where the value of accountability and transparency must be paramount.

---Doug Paul Davis reporting

Has Davis Ceded Too Much Power to an Unelected City Manager and Staff?

The idea behind the council-manager form of city government is to produce a system that combines the political leadership of elected officials with the strong managerial experience of an appointed professional local government manager. The idea behind this system is that the councilmembers set the policy and the city manager carries out the policy. This is one of the fastest growing forms of city government in this country.

However does it place too much power in the hands of an unelected bureaucracy? Does it infringe on the rights of minority members of the council?

This is a key point, because the council is in this model a legislative body whose members are the decision makers. Power is supposed to centralized in the elected council, which makes policy and approves the budget. The manager is appointed by council to carry out policy. If the manager is not responsive to the council’s wishes, the council has authority to terminate the manager at any time. In that sense, a manager’s responsiveness is tested daily. However, that responsiveness is only required of a majority of the council, because the minority lacks the power and numbers to vote to remove a city manager.

What we see in Davis are several problems that are a direct result of the structural system of government.

The councilmembers have no office space. This may seem like a small point, but the unelected city staff each have their own office space where they perform their work. If someone needs them, they can come see them or call them and leave a message. Now the city council has no such space. Space is power. If a city councilmember needs to meet with the staff, they must do so in the staff’s office. That provides the staff member with an advantage. The councilmember must seek out the staff member rather than vice versa. Imagine your boss having to come into your office rather than you having to go into your boss’ office. Imagine your boss having to seek you out rather than you having to seek them out. This displaces authority.

Along the same lines, the city staff is well paid whereas the city council is paid $500 per month. So again, the power is transferred away from the council who are treated as volunteers and towards the professional staff.

Moreover, the council shares staff resources—they are not allocated their own staffer. What that means is several things. First, the councilmembers do not have staff that is responsible and responsive only to them. Rather the staff is responsible to the city manager and their own department. Second, if you are a member of the council minority, the city staff has been non-responsive to council minority knowing that they do not hold control over who is hired and who is fired. What has happened is that minority members often do not get responses from staff and they then have to track them down. This is the opposite of what it should be.

As we saw with Councilmember Heystek’s proposed living wage ordinance, the council majority was able to prevent staff from working on that proposal. That meant that a city councilmember elected by the voters of Davis just as the council majority members are, had to on his own non-paid time, do the legwork needed to prepare the agenda item. That is a fundamental disenfranchisement of a sizable segment of the Davis of the population and that is a direct result of the council-manager system. Had Heystek had his own staff this would not have happened.

The question that now comes to mind is whether or not the city of Davis has ceded too much power to unelected staff members. Staff obviously serves at the pleasure of the council majority. And that means that staff reports—which again—the members rely on for the bulk of their information are tailored the needs and preferences of the council majority. The recommendations tend to take the side of the developers and the political establishment.

The council minority members are then forced to rely on these reports to make their decisions. We saw this play out fully when then Mayor Pro Tem Sue Greenwald took issue with the staff report estimating revenue from a proposed Target. She had to specifically go back through the report with staff to get them to re-figure their estimates based on different assumptions—one of those being the difference between Target and an alternative development on the same site as opposed to a vacant field—and when she went through those numbers at one point the staffer clarified that he did not agree with this assessment. Again, that’s a tremendous amount of power placed in the hands on a non-elected city staffer and at the expense of an elected public official.

So while it may be true that there are advantages to the council-manager style of city government, there are some severe drawbacks particularly in a sharply divided council whose divisions are rather bitter and divisive.

Davis should begin to ask the question as to whether or not this form of government serves its needs or whether we should go to a more professionalized city council. I would argue that we have gone too far and placed too much power in the unelected city staff. I think we pay our councilmembers far too little for the job that they do. Councilmembers basically have nearly a full time job and they are paid what amounts to a monthly stipend. Councilmembers should have their own staffer who can prepare reports and do research as they see fit. And councilmembers at the very least should have their own office space. In short, I think there are some severe shortcomings in this model that disadvantage elected councilmembers, particularly those in the minority.

---Doug Paul Davis reporting