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

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

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

City Responds To Grand Jury Report

As we reported last week, the City of Davis has asked Police Ombudsman Bob Aaronson to investigate the findings of the Yolo County Grand Jury's Report that reviewed the Davis Fire Department. The city had 90 days within the receipt of the report to respond to the recommendations. This week's council agenda contains the city's formal response to the Grand Jury's recommendations.

The city has taken the extra step of examining the veracity of the findings. As Mr. Aaronson told the Vanguard last week:

"My hope at this point is to be done within the next 30 to 45 days. How it plays out after that isn’t my call."

In a follow up, Mr. Aaronson informed the Vanguard that the city did not need his report in order to respond to the recommendations which are fairly basic and routine.

The city's staff report fully lays out the process.

"As we began evaluating the overall report, it became apparent that the investigation would take longer than the 90 day timeframe mandated for a City response to the recommendations. Our response to the City Council is thus a multi-step process."

It should be both noted and applauded that the city has decided to go above and beyond the statute requirements by actually investigating the findings at which point there will be a report made public.

According to the staff report:

"Responding to the Grand Jury’s report is challenging, as the Grand Jury process necessitates that the City receive only minimal background information about the concerns and/or specific events from which the Grand Jury bases its findings and recommendations. The conclusions drawn by the Grand Jury are serious, and the City has responded accordingly by hiring an independent investigator in an attempt to gain a better understanding of the underlying basis for the Grand Jury findings."

The staff report acknowledges that this response is neither detailed nor lengthy:

"The first step is to fulfill our legal obligation to prepare a response to the Grand Jury, based on the direction given in their report, as has been accomplished by the attached letter. Although Council may have anticipated a more detailed and lengthy response, we want to assure Council that we feel this letter relays to the Grand Jury that we are taking their findings and recommendations seriously and that we have begun steps to implement change where appropriate."

The second step involves the independent investigation by Mr. Aaronson.

"The second step is currently in process: we have hired an independent consultant to gather information related to the Grand Jury report and anticipate formal feedback within the next several weeks. The independent investigator is proceeding with a thorough review and will be preparing additional information emerging from his review. We hope that this information will shed additional light on the underlying allegations in the Grand Jury Report and provide a clear path to make any improvements or changes. Staff will share the information that can be made public and subsequent recommendations with the Council once the review has been completed. We hope to have the overall investigation complete by the end of October."

According to Bob Aaronson there will be two different versions of a final report on this incident:

"One that I will anticipate being released publicly and one that I will anticipate being held confidentially."

• Readers can view the entire staff report, letter, and other supplementary material here

The city responds to the five recommendations in the Grand Jury report in a formal letter.

Recommendation 08-15: "Revise the promotion testing and selection process to identify and promote the best qualified candidates. Post promotion selection criteria in a public area of the firehouse as well as in the announcement of the promotional opportunity."

City's Response:

"The City is re-examining the promotion testing and selection process used by the Davis Fire Department and anticipates implementing refinements to improve the process and the accountability of the relevant decision makers. We are working on putting guidelines into place that will better assist both existing employees interested in promotional opportunities, as well as senior management making decisions on promotions.

For promotional positions citywide, the City's Human Resources Division ("HR") sends hard copies of all promotional position openings to all departments, including the Fire Department, and hard copies of the notices are posted in each department. In addition, HR sends an e-mail to all employees with city e-mail accounts notifying them of the promotional opening. The promotional position notice includes the job qualifications and criteria for the opening. The promotional opportunity is also posted on the City's website. The City has, and will continue to, make available its promotion criteria to applicants, potential applicants and the public at-large, through internet posting and City bulletin boards, including the bulletin boards at the Fire Department."

Recommendation 08-16: "Develop and publicize criteria for selection to special committees, projects and education opportunities for DFD firefighters.

City's Response:

"Similarly, the City is reviewing the manner of, and criteria for, selecting Fire Department employees for various employment-related opportunities to make sure that they are in the best interests of the City and fair to its employees."

Recommendation 08-17: "Publicly post copies of the revised City of Davis Drug and Alcohol Administrative Policy, 3.4B in the City of Davis Personnel Rules and Regulations handbook. Further, require all current and new DFD personnel to read and sign-off that they have read these documents."

City's Response:

"The City will continue to work to insure that all employees are conversant with the City’s Drug and Alcohol policies. The City has provided its Drug and Alcohol policies to all of its employees. New employees are provided with the policies during orientation and are required to acknowledge receipt of these policies. The City posts the policies on the City's internal employee intra-net. Hard copies of memos describing policy updates are sent to all employees and the employees are directed to the City's employee intra-net to review the entire, up to date, policy. The City is considering additional training for all employees on the City's Alcohol and Drug policies, as part of the City's on-going training program."

Recommendation 08-18: "All City and DFD policies related to drug and alcohol use should be enforced."

City's Response:

"The City does and will continue to enforce its Drug and Alcohol policies. In this regard, the City will redistribute its drug and alcohol policies to all employees to ensure that everyone abides by the same policies related to drug and alcohol use and that all managers and supervisors are familiar with how to address situations where employees may be in violation of the policies."

Recommendation 08-19: "The successor Fire Chief should come from outside DFD with no personal ties to the DFD Union, in order to restore a balanced relationship between DFD administration and the Local Union and its Board."

City's Response:

"While the City understands the basis for this recommendation, the City is unable to artificially limit or circumscribe its employees’ rights to apply for vacant positions. The City will be mindful of the concerns raised by the Grand Jury nevertheless. When the City begins to recruit for a new Fire Chief, the City intends to seek qualified applicants from both outside and inside the City. The City Manager retains the right to choose the most qualified applicant for this position, regardless of whether that person is currently employed by the City."

Commentary:

There are several thoughts that emerged from reading the city's responses.

However, first, I want to begin on a positive note. Our counterparts in Woodland at the Woodland Journal have been focused heavily on the Woodland school district's response to the Grand Jury report. For those unhappy that the city of Davis is spending $35,000 on its investigation, the Woodland School District is paying about $80,000 according to one board member who characterizes the response as: "Half of the responses are lies. The other half doesn’t make sense." The Woodland Journal believes that the findings have been whitewashed.

Thus the city of Davis seems to be at least on the surface taking this far more seriously than the Woodland school district. The city after initially having a response that suggested complete denial of the charges in the Grand Jury report is taking things very seriously and there will be a full and fair investigation.

• [Please see our interview with Investigator Bob Aaronson]

The Vanguard fully understands that this response is preliminary. The Grand Jury's recommendations frankly were too modest to begin with and thus could be responded to prior to a full investigation. While these are good recommendations to follow regardless of the outcome, they are not sufficient if the allegations are shown to be accurate.

Even to those very basic recommendations, I do not feel that the city's initial response goes far enough.

Let me provide one basic example--one of the recommendations is that "all City and DFD policies related to drug and alcohol use should be enforced." The city's response to this is that it does and that they will "redistribute its drug and alcohol policies to all employees." That does not seem to go far enough. The real question is how they are going to enforce their drug and alcohol policies. Granted that if there is shown to be a problem with drinking specifically, the city may take additional steps, but it seems even in the interim the city could have had a stronger response than the one they gave.

The real test for the city will obviously occur once the report by Bob Aaronson is complete. At that time we will see how if the city is willing to take strong actions, should they be warranted. In the meantime these responses seem to be a formality designed to technically response to the Grand Jury without any kind of substance or initiative. From that standpoint, it seems the city could have done a bit more even at this time in response to very serious allegations.

---Doug Paul Davis reporting

Investigation into Grand Jury Charges Costly to City

In June, the Yolo County Grand Jury released its annual report, in it were reports that severely questioned some of the operations of the Davis Fire Department. City leaders and the Vanguard called for an independent investigation into these allegations hoping that the issue would be resolved one way or another.

The city manager named Police Ombudsman Bob Aaronson as the independent instigator and he has been hard at work interviewing past and current Davis firefighters.

However, on the council agenda this past Tuesday was an item authorizing an additional expenditure of $35,000 to Mr. Aaronson in order to conduct this investigation.

• Please see the resolution

The city's staff report reads:

"Mr. Aaronson’s charge for investigations is $195 per hour plus expenses. Staff had hoped to keep the cost of the investigation below $25,000. It now appears likely that cap will be exceeded as he has already spent many hours interviewing employees and others affiliated with the Fire Department. There has been more interest than we originally anticipated from employees and others to meet with Mr. Aaronson to talk about the Grand Jury findings and it is apparent that for Mr. Aaronson to complete a comprehensive and fair report, additional time and costs are required. As the total amount for the project is now expected to exceed the amount the City Manager is allowed to authorize without Council approval, staff requests that Council approve the attached resolution to authorize the City Manager to execute Amendment #1 to the original contract, which would extend the contract with Bob Aaronson in an amount not to exceed $35,000."

This item was placed on the consent calendar, however Councilmember Lamar Heystek pulled the item from consent and proceeded to ask the City Manager, Bill Emlen, a number of questions about this contract extension. One of the more surprising responses was the acknowledgment that Bob Aaronson's base contract which awards him with $60,000 as a part-time Ombudsman, would not be sufficient to conduct an independent investigation even of the Davis Police Department.

It was my understanding that the reason he was hired was expressly to do these sorts of investigations into the police department as warranted. This has led to further questions about the position and what the position is supposed to do and whether the position's focus has shifted from its original intention. For instance, Bill Emlen mentioned that Mr. Aaronson was instrumental in helping the department to resolve the issue of videos in squad cars. While it is great that Mr. Aaronson could provide that assistance to the department, it does not seem to be the role that he was hired to do. There would seem a number of individuals better suited for the role of fixing the video systems in squad cars.

That said, I have been one of the most outspoken advocates for conducting this independent investigation and I have at this point full confidence in Mr. Aaronson's ability to conduct it and really believe he was not only the best option but the only option to produce a report that would have the necessary impartiality to convey confidence no matter the outcome. Nevertheless aspects of this contract were concerning. During a conversation with Bob Aaronson, he recommended I interview him on the record about these concerns so that he could address them to the best of his ability.

According to Bob Aaronson there will be two different versions of a final report on this incident:

"One that I will anticipate being released publicly and one that I will anticipate being held confidentially."

He hopes to have this completed perhaps by the end of October if not sooner.

"My hope at this point is to be done within the next 30 to 45 days. How it plays out after that isn’t my call."

When Councilmember Heystek asked Bill Emlen what the $35,000 cost was covering, Bill Emlen gave vague and non-specific answers.

Bob Aaronson told me that he would not be provided with support staff on this investigation.

"The investigation includes extensive interviews, document review, basically in my view, I am studying the fire department. It’s hard always to predict what I’m going to decide is relevant to an aspect of the investigation. I am interviewing current employees. I may or may not interview some former employees as well as interviewing people outside of the fire department. In my experience investigations are labor intensive. There isn’t a substitute for that."

Unfortunately he believes that these types of investigations are costly.

"The core problem is that an investigation, I don’t care who conducts it, is very labor intensive. It winds up being very expensive no matter who conducts it."

In fact, it is more costly than even the $35,000 implies.

"The $35,000 does not represent the entire cost of the investigation, because basically I have shifted hours out of the police ombudsman area in order to try to keep down the additional costs. So I would estimate I’ve probably shifted 20 hours so far."

The basic cost of this investigation probably runs from $50,000 to $60,000.

"If it’s going to be a thorough investigation it’s going to cost. Frankly if a jurisdiction I didn’t work in called me, and made this proposal, fire department, about 50 employees, you’re probably going to have to interview most of them, some former employees, there’s this grand jury report, and there’s basically a Jackson Pollack picture of the issues, it’s not a single issue, it’s all of these confused, convoluted issues, I’d probably quote them that it would be at least $50 to 60,000 maybe more."

I did not ask him, though I should have, what work he was doing as Police Ombudsman was being scrapped because of the fire investigation.

However, this additional contract was necessary for a variety of reasons, one of which was that he couldn't use all of his hours as police ombudsman to conduct this investigation.

"It wouldn’t have been feasible for me to try to complete this investigation and basically steal all of my hours from police to do it. In fact, I suspect that certain bloggers would take issue with the fact that the oversight of the police department had fallen off the edge of the table because the fire department investigation was taking precedence."

He suggested that if he had attempted to do that this would have been an eight or nine month investigation based on the number of monthly hours he would use.

"If you read the contract, I think it more or less lays it out. I don’t think anyone envisioned that the contract was going to actually encompass the hours that it would take to conduct my own investigation. That for the most part that contract is there to interact with the public, to review citizens complaints, to do a certain amount of ride-alongs, to basically be involved as oversight as opposed to first line investigation."

Mr. Aaronson also emphasized to me that this is a very rare occurrence. In Santa Cruz for instance, he has had one independent investigation in six years. That is the highly publicized case where the police illegally conducted surveillance on peace protesters.

"I would be surprised if this comes up [independent investigations by the ombudsman] more than every third or fourth year. I suppose there is a remote possibility if the city was satisfied with my report that they might use me more. But my general experience is that it’s with that frequency."

While Mr. Emlen suggested that Mr. Aaronson would possibly need an additional contract to conduct these type of investigations into the Davis Police Department, Mr. Aaronson somewhat downplayed that possibility.

A chief difference between the police department and the fire department is that the police already have investigators capable of conducting these kinds of investigations. They have investigators that primarily do arson investigations, but most fire departments, particularly small departments like Davis do not have professional standards units like those that exist in police departments.

There aren’t people who work for the fire department that have the level of expertise. There are people in the police department that have the level of expertise to conduct a competent, thorough investigation.

As a result in a case like the Buzayan case, Bob Aaronson would like operate more as an auditor than as the primary investigator.

"There are instances where if the decision were made that I felt comfortable with, that the police department would do the initial investigation in something like the Buzayan case."

However, the question as to whether he would need an additional contract to conduct his own investigation appears to be answered in the affirmative.

"I could be involved and it wouldn’t necessarily require an additional contract. On the other hand if I were asked to be the lead investigator on it, it would probably require an additional contract."

In the role of auditor, he believes for the most part, he can review the case and have a general sense if the the investigation was done correctly.

"In my view there’s a way, that once I know the given investigator and I know the quality of their work product because when I audit an investigation, I’m listening to things in their interviews and I’m comparing it with the transcripts and the summaries. Then I go through their analysis with a fine-tooth comb. I’m making sure that they’ve gathered all of the evidence, and talked to all of the witnesses. So I suppose it would be possible to sneak something past me, but it’s pretty hard.

I listen to the recorded interviews of the witnesses, because typically that will tell me a lot about what the investigator did or didn’t do. If I have a heightened level of concern in a given case, I might insert myself more. But generally speaking I find that auditing is a way to provide the oversight function in a cost effective way."

It is the cost of these investigations that drives the form of them.

"In an effort at cost savings, both in Davis and also in Santa Cruz, the vast majority of investigations are conducted by city employees and I audit those investigations."

He continued,

"Part of the reason I’ve taken the job here and I’ve taken the job in Santa Cruz, and when we first did the interview I discussed this, this to me is an experiment in trying to find a way to provide cost effective civilian oversight to jurisdictions that couldn’t support a fulltime function. If you sit down and look at some of the bigger jurisdictions, they spend a lot of money. And even those aren’t even doing their own investigations. This is the big difference around the reason why something like the office of citizen complaints in San Francisco is such a huge budget line item for San Francisco and on the top of that, they have a terrible backlog. If you want to do an investigation thoroughly, you’re going to have to pay for it."

Notably he added:

"You are basically asking for a fancy French meal at McDonald’s prices. And that’s really hard."

However, Bob Aaronson did reiterate that while he was trying to conduct this in a prudent fiscal manner, he was confident he would do an effective investigation.

"I’m not going to do a substandard job."

He elaborated on this:

"I really relish working as the police ombudsman here in Davis. A concern I had very early on, in taking on this additional assignment was that something in the additional assignment would sour people to the extent that it would undermine my ability to go forward as the police ombudsman. One way to have that sour would be to force the city to pay more than they can reasonably bear. Part of the difficulty is that some of the allegations that are raised, are allegations that if true might mean that there are employees that have lawsuits against the city. Six figure law suits. How much do you want to expend investigating six figure lawsuits?"

During the meeting on Tuesday night, Bill Emlen mentioned that Bob Aaronson had paused his investigation while the contractual matter was being ironed out. Bob Aaronson was able to clarify this point.

"One of the things I most fault big investigations for is how much time it takes for them to be completed. So if I have time on my schedule when I’m available for some given assignment I like to really plunge in. I think I got ahead of everyone else. I would up doing a lot of work, conducting a lot of interviews in a relatively short period of time. It became apparent to me that although city officials had been alerted to what the expense was going to be, those things hadn’t been moved into place."

Mr. Aaronson told me that he's probably interviewed between 25 and 30 people already.

He emphasized the fact that the fire department has been extremely cooperative in this entire process.

"A positive sign is that there’s no question that the fire administration has an interest, it has been expressed to me, in as thorough an investigation as possible. They’ve encouraged employees to come and talk to me."

Moreover, he has not felt that the fire department has tried to thwart his efforts.

"I haven’t gotten the impression that the fire department is trying to shut me down or push me away in any way, shape, or form."

Finally he also emphasized that citizens should not be concerned about the quality of the service provided by the fire department.

"If there are people in the public that having heard things are concerned about service to the public, the piece that I can share at this point, neither the grand jury report nor anything that I have seen in my work suggests that the public is being disserved. I think that the quality of fire service in the city of Davis is high."

That has been my experience and belief as well. Whatever issues exist in the fire department, quality of service and work product are not among them.

However the ability of the city to provide vital services is not infinite. The amount of resources consumed by a single department and allegations of misconduct on their part are of great concern to the taxpayer and citizen of Davis. The cost of this investigation, as small as it is in the scheme of things, is just another reminder of the consequences of the failure to resolve issues at a more basic level.

Hopefully the Grand Jury report's recommendations will be thoroughly reviewed and implemented to the extent possible. I do not remain optimistic that much can be resolved in terms of the issues raised by the report in the short term. I can only hope that whatever the result of Mr. Aaronson's investigation, that the city takes his findings seriously and acts on them when necessary.

---Doug Paul Davis reporting

City Names Robert Aaronson Independent Investigator

Davis City Manager Bill Emlen told the Vanguard by phone yesterday afternoon, that the city had in fact asked Police Ombudsman Robert Aaronson to conduct the investigation that examined allegations laid forth by the Grand Jury now two weeks ago. These allegations included sleeping in the fire station while intoxicated, improper union influence, hostile work environment, among other things.

One of the chief concerns that Mr. Emlen has expressed has been the lack of sufficient detail to allow for a follow up investigation. The report heavily relies on confidential witnesses, many of whom went to great lengths to avoid discovery that they reported feared would bring retaliation. This included a number of witnesses who apparently parked several blocks away and then walked in the back door rather than parking in the grand jury parking lot.

As the City Manager told the California Aggie in an article that appeared in Monday's paper:

"I've seen these [reports] over the years and I think it is pretty broad in terms of scope and the things they looked at... There are issues in there we wish we had more information on, but we understand why it can't be there due to the need for confidentiality."

The Vanguard asked City Manager Emlen if the investigator would possess the ability to compel testimony, i.e. some sort of subpoena power, and he said they were looking into whether he did or did not have subpoena power. During the course of the debate on what type of police oversight system Davis would have, back in 2006, one of the key questions was whether a civilian review board could have subpoena power. Research indicated that generally such boards had special investigators like the Ombudsman position, that could in fact compel witnesses to come forward and testify. The city ultimately went with the straight Ombudsman in part because of concerns of confidentiality in such matters.

A similar problem exists in this case. In some ways, this report is a personnel complaint as much as anything else and those matters are protected by confidentiality. In fact, Mr. Emlen in the California Aggie article again asserted that some of the findings in the report there are legitimate explanations, but confidentiality prohibits the city from providing those explanations.

There is considerable question on the timing of this report. The law requires the city to respond within 90 days. Mr. Emlen believes that at least some kind of response could occur at that point in time, but there might be aspects that go beyond the 90 period.

City Councilmember Lamar Heystek was the first to call for an independent investigator:

"I think we need to bring in outside help to look into the Grand Jury allegations."

A few days later, Mayor Ruth Asmundson expressed her concern for the situation:

"I was really surprised and concerned that there's something amiss in our fire department."

The California Aggie finds both Mayor Pro Tem Don Saylor and Councilmember Stephen Souza responding for the first time.

Mr. Saylor:

"The grand jury report contains several very serious allegations about practices within the Davis Fire Department. I support the city manager's independent review of these allegations to determine the accuracy of the charges and guide any necessary corrections or other actions."

Mr. Souza:

"The allegations about activities by some in the Davis Fire Department need to be investigated by an independent source like the ombudsman to substantiate or exonerate those individuals... I am very pleased that the city manager has initiated the hiring of an independent investigator and a report to the council will follow."

In a release last Monday, City Manager Bill Emlen stated his goals for the investigation:

• Be clear to the public that we are committed to a thorough, objective evaluation of the Grand Jury’s report.
  
  
• Be clear to all sources that we will retain their confidentiality in bringing information forward.
  
  
• Ensure that those affected in the report are treated fairly and in an impartial manner.

While this is a difficult process, Mr. Emlen said that he looks forward to a speedy conclusion to this process and will be curious to see what the outcome is.

Robert Aaronson as we mentioned last week now undertakes his first major assignment since being named Ombudsman just under two years ago.

For more information on Mr. Aaronson, please see an early Vanguard story from September of 2006: Aaronson handed down major finding in a police spying investigation.

Also see the Vanguard's August 2007 interview with him.

For the full story on the Grand Jury Report, please click here.

---Doug Paul Davis reporting

City Manager Calls for the Hire of Independent Investigator To Review Grand Jury Report on Davis Fire Department

Mayor Asmundson Expresses Concern That Something is "Amiss" In the Fire Department

In a release late yesterday afternoon, Davis City Manager Bill Emlen announced that the city was looking to hire an independent investigator to perform a detailed review of the findings and recommendations of the recently released Grand Jury report.

"The nature and scope of issues raised in this report are significant, and warrant a comprehensive review and response from the City."

City Manager Bill Emlen told the Vanguard that he hopes to make an announcement on the selection of an independent investigator by the end of this week. His first choice seemed to be Police Ombudsman Bob Aaronson but if it is not Bob Aaronson himself, it will be someone like Bob Aaronson. Mr. Aaronson has the advantage of already being on staff and already having familiarity with the city of Davis.

The move follows increasing pressure on the city to thoroughly examine the Grand Jury report released late Monday of last week. Mr. Emlen called the report a "black cloud" hanging over the city. He recognized the need for an independent review that would give the public confidence in whatever finding.

Last week, City Councilmember Lamar Heystek was interviewed on CBS News Channel 13 in Sacramento.

"I think we need to bring in outside help to look into the Grand Jury allegations."

Over the weekend, Mayor Ruth Asmundson expressed her dismay at the turn of events. The Mayor told KCRA TV in Sacramento:

"I was really surprised and concerned that there's something amiss in our fire department."

In the release, Bill Emlen's stated goals for the investigation include:

• Be clear to the public that we are committed to a thorough, objective evaluation of the Grand Jury’s report.
  
  
• Be clear to all sources that we will retain their confidentiality in bringing information forward.
  
  
• Ensure that those affected in the report are treated fairly and in an impartial manner.

In his conversation with the Vanguard, City Manager Bill Emlen was concerned that it would be difficult to retrace some of the steps that the Grand Jury took. In particular, many of the employees who were fearful of retribution had to have extraordinary steps taken in order for them to feel comfortable testifying. I asked him if the city could also make such assurances to protect their identity, and he said that the city could do that and could guarantee protection. However, he was not sure that would be enough to get them to come forward.

As important is the pledge of transparency. The report is not going to be something done in closed session, submitted in private.

"We are committed to a transparent process with the independent investigator’s report ultimately presented to the City Council in open session."

The law requires the city to submit a response within 90 days of the Grand Jury's report. That means by the end of September. However, Mr. Emlen would like that to be done much sooner.

"Our goal is to respond to the Grand Jury’s report much earlier than is required by law."

One way or another, he believes that this is a cloud hanging over the city. He either wants to exonerate the fire department or take appropriate action as soon as possible.

Commentary

An independent investigation is exactly what the Vanguard has wanted to see happen from the start.

Bill Emlen's initial statement and reaction was alarming last Tuesday:

"We believe the Grand Jury Report includes several statements that are factually incorrect. Taken together, they contribute to a less-than-accurate picture of the Davis Fire Department."

However, he has now stepped up to the plate and done what needed to be done. This was an excellent statement by the City Manager. He has done everything here that needs to be done. Mayor Ruth Asmundson is to be commended as well for her forceful advocacy to look into this report and not attempt to sweep the problem under the rug.

The Vanguard is hopeful that Bob Aaronson will be the one who conducts this investigation. In 2006, he had to perform a tough investigation in the city of Santa Cruz, investigating allegations that the city police were spying on anti-war protesters. The initial report by the police was conducted by the very person who ordered such surveillance. Mr. Aaronson called the police on an unprofessional report and then castigated them for their unlawful surveillance against the anti-war protestors.

It is ironic that the man brought in to investigate complaints against the police department would have his first major investigation be to look into the fire department.

Councilmember Stephen Souza has been quiet on this issue. It is somewhat ironic however that both at the time of creating the position of ombudsman and in March of 2007 when Aaronson gave his six month report, Mr. Souza called for the ombudsman to investigate more than just police complaints. While it seems impractical for the ombudsman to handle day to day complaints about things like public works, it is more fitting that this type of investigation fall into the hands of person hired to be an independent eye for the city.

The City Manager acknowledges the severity of these charges and recognizes that neither he nor his employees are the ones that should be investigating this report.

Whoever ends up with the investigation has a difficult and unenviable task. As the City Manager acknowledges, the road map laid out by the Grand Jury is a difficult one to replicate. It took the Grand Jury over a year to conduct this investigation. The issues of retribution and confidentiality are difficult ones to grapple with both on the side of individual accused employees as well as whistle blowers.

However, the city has now recognized that they cannot unring this bell. They must press forward and find out if these accusation have merit.

Frankly this is all we ever wanted from the start--a process by which we can determine if the Grand Jury's report has merit and a process by which the city can deal appropriately with individuals if needed.

Hiring an independent investigator helps the city both meet the needs of the public and protects the rights of the employees.

Once again Mayor Ruth Asmundson and City Manager Bill Emlen deserve tremendous credit for doing the right thing in this situation. They have the full confidence of the Vanguard as they move forward.

---Doug Paul Davis reporting