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

imageOPen Government

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

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Anonymous

    David , you appear to portray yourself as a bringer of the truth , look at me everybody , I'll be the ONE to inform you readers how it really is in the world of Yolo County.Lets set it straight , your a person who types on a BLOG PROGRAM , basically a diary of your rambling thought process .So look in the mirror today , walk in the shoes of the people you Bash , and decide if what you do really is having a positive result , within the City of Davis , your neighbors and friends .

  2. Anonymous

    David is definitely having a positive effect. His blog is the only information that I get about the City government. Any inaccuracies are identified by readers who don't like David.

  3. Anonymous

    What is wrong with …anonymous 8:43…? This person is so full of hate! Anonymous, if David and his column upset you so much, don't read it, and please don't put you hateful words into print for the rest of us to read. What an awful way to start the day, reading your words.As to the issue: the investigation into the fire department was paid for with taxpayer's dollars, right? In that case, all of us who support our city government with our dollars should have the right to see the documents, and that includes the council. We elect the council to represent us and our interests. How can they do this, if they are not allowed to see important information? We do not elect our city manager. The council selects him, and he should be serving at the will of the people and the council. What happened to that?

  4. Lexicon Artist

    …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 hindsight, I think the city council should have put these three conditions on Aaronson's report in advance of paying for it: 1) That the report be prepared for the council and for the city manager; 2) that the council copy would be exactly the same as the city manager's copy, though the names of individual employees, whose personnel records were discussed, would be blacked out in the council copy of the report; and 3) that Aaronson include a summary of his findings for the public at large….City Attorney Harriet Steiner ruled … 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….I'm not certain that Ms. Steiner's answer was sufficient. I don't think the council pressed her as they should have. It seemed to me she was answering the question, …What could happen to the city of Davis if members of the council were permitted to willy-nilly look through private personnel files?…I think the questions to Ms. Steiner at the time should have been: 1) What is the specific language in state law which leads you to believe that members of a city council, who can negotiate personnel contracts in closed session, cannot in closed session view a report which includes personnel information, even if the names of individuals referenced are blacked out?; 2) What cases in California, where a city council had access to a report detailing the city's personnel troubles but in which the names of individuals were blacked out, prove that the city could face damages?; 3) How much in damages and other costs were incurred by cities which were …liable… in the cases you reference?

  5. Lets Get Real

    Let's get down to the nitty gritty here. Three City Council members were too lazy to read through Aaronson's report, or were afraid of what they might find. Bottom line – they did not do due diligence as required.DPD, are you still filing a lawsuit to get a copy of the report???

  6. Anonymous

    First Anonymous poster:What kind of person would wake up at the crack of dawn every morning to denounce a local blog as the first poster?Psychiatric help is in order.

  7. Anonymous

    The views of the Davis City attorney and city manager are apparently not in the mainstream of how other California cities with city managers view their responsibilities to the City council and the Citizens. Davis staff run it as a closed shop and their attorney is apparently instructed to argue that view within the law.Davis is not a transparent government.Perhaps time for new city attorneys and manager?

  8. Anonymous

    Anon 1 and 2, Anon 1: There is some truth to what Anon 1 has said and it does not appear to come from a hateful position. Anon 2: has stated that inaccuracies on this blog come from those that …Don't like David…. You could'nt be more wrong. Of course you may not recognize that fact.

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