Redacted Version is Heavily Censored Revealing Little New Information
On January 13, 2009, the Davis City Council listened to investigator Bob Aaronson and City Manager Bill Emlen discuss very different interpretations of the Mr. Aaronson’s investigation into allegations present in the June of 2008 Grand Jury Report.
It was a report that the elected members of the Davis City Council did not get to read in full. The Vanguard subsequently filed a California Public Records Act Request for both the full unredacted report and a redacted report. The city of Davis, as expected has denied the Vanguard access to the full version of the report.
Nevertheless, the Vanguard was able to obtain for public viewing for the very first time, a redacted version of Mr. Aaroson’s report. The city has allowed for disclosure an even more redacted version than the council was allowed to see, this despite the assertions from City Attorney Harriet Steiner that the council had no more authority and right to see the documents than members of the public.
In a letter to the Vanguard dated February 20, 2009, City Manager Bill Emlen wrote:
“The PRA exempts from disclosure “personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of privacy.” Likewise, the California Constitution contains an explicit right of privacy to which the City’s employees are entitled and which the City must protect. The redacted Aaronson Report strikes a balance between the public interest in disclosure and the employees’ privacy interests – redacting only that information containing sensitive personnel information or information protected by the official information and deliberative process privileges.”
The Vanguard strongly disagrees with this assessment by the City Manager and City Attorney, noting that entire pages are completely blocked from the public’s view. The Vanguard in particular notes that sections praising Chief Rose Conroy and Captain Bobby Weist are unblocked and often left uncensored in their entirety. However, sections that criticize their actions in specific ways are in fact heavily redacted. One is to question the city’s interpretation that praise for city employees does not constitute a personnel matter but criticism does.
City Manager Emlen continues:
“Mr. Aaronson’s report makes it clear, and I concur, that the Davis Fire Department is managed professionally and provides the highest level of service to the community.”
What Mr. Emlen fails to note, and what Mr. Aaronson’s testimony on January 13, 2009 makes painfully clear, is that there is a considerable disagreement between Mr. Emlen’s interpretation of Mr. Aaronson’s report and Mr. Aaronson’s assessment of the situation. While Mr. Aaronson was trying to put it politely on that evening, his interpretation was largely that Mr. Emlen saw the glass as half full while he himself saw it as half empty. To put it in less polite terms, Mr. Aaronson was suggesting that the findings were considerably more serious than the portrayal that Mr. Emlen gave to city council.
The question now comes to whether or now the redacted version teaches us anything more than we knew from Mr. Emlen’s report and Mr. Aaronson’s discussion late in the evening on January 13.
What follows is a deconstruction of the text and the inference of what was contained in significantly redacted sections.
A considerable question that arose during the meeting was the basic expectation level of the interviewees–notably the extent to which the subject matter would be confidential.
One interesting note at the onset is Mr. Aaronson’s distinction between a “classic personnel investigation” and this report.
Mr. Aaronson notes:
“A personnel investigation is used to determine whether or not, in connection with specific actions and incidents, an employee has engaged in misconduct which would be subject to discipline by the employer. Such a personnel investigation would be a good deal more exhaustive, time consuming and expensive than the work I have completed here. As well, the firefighters I interviewed would have possessed procedural rights that are connected to personnel investigations.”
Instead he characterizes this as an audit which would determine whether there was merit but not necessarily conclusive proof of the Grand Jury’s allegations. More on this shortly.
Mr. Aaronson describes that there is clearly a faction within the department that could be described as discontent or disgruntled. This is a minority. However, it would seem to be a rather sizable one, estimate at roughly 20%.
“Twenty percent of the people I interviewed explicitly professed some significant degree of disgruntlement including a distrust of Chief Conroy for varying reasons.”
He further opines that the real number may have been higher. He writes,
“it is certain that some people who denied discontent are In fact discontented” and quickly adds, “some of those credibly identified as among the discontented specifically avoided talking to me.”
“The discontented employees who voluntarily interviewed with me all expressed fears of retaliation from the Chief and union loyalists if the substance of their interviews were divulged…”
The city then blacks out two paragraphs where presumably detail is added to these fears of retaliation. This supposition is bolstered by the next visible comment:
“I found no evidence that either the Chief or the union explicitly directs anyone to be shunned or ostracized. This did not surprise me; in such a small organization, explicit direction wouldn’t be necessary because everyone’s position in the dispute is known.”
Moreover it appears the larger problem is that of favoritism in terms of both assignments and promotions. He argues that nearly all discontented and even some of the moderate loyalists were concerned about the role of “being in favor” had in certain circumstances.
Mr. Aaronson then writes that it would be labor intensive to investigate particular incidents, so he has refrained from a formal investigation into all but one which is blacked out in the report.
The next section from the end of page 9 through the first paragraph on page 15 is blacked out from the public’s viewing. Is this a vivid description of the incident in question? We cannot know for sure.
The next section deals with union issues. Mr. Aaronson describes in detail his perceived strengths and weaknesses of the history of the organized labor movement. A history that shows unions acting as a brake against unchecked authority from management while at the same time exceeding its charge at times. As Mr. Aaronson writes,
“When the power of a union is unchecked, it can work terrible damage on the ability of the workplace to function successfully. A balance between unions and management is critical for the success of both.”
Mr. Aaronson describes considerably less fear amongst the firefighters toward speaking out against the union as they did speaking out against the Chief.
“Fewer employees expressed a fear of speaking out against the union, although I heard a number of stories about how the people who did so were treated…”
“As one union dissenter admitted, he’d been called names and confronted in connection with speaking out, but he did not consider any of it retaliation or harassment.”
The next two lines are blacked out, and it continues:
“Because the union does not control promotions, assignments or most opportunities, firefighters appear less concerned about the adverse consequences of taking on the union than of taking on the Chief.”
Much of the rest of the section is heavily redacted; however, we are allowed to see that Mr. Aaronson describes himself as having “only found modest cause for any concern” in the relationship between the Chief and the Union President.
The last two paragraphs are completely redacted in this section and Mr. Aaronson goes on to discuss the grievance process. During the council meeting both Mr. Weist and Chief Conroy went to great lengths to discuss the difference between a formal grievance process and what Mr. Aaronson is describing.
Mr. Aaronson discovers that most grievances were not forwarded to management. There is then a section blocked out and another two paragraphs after that.
Mr. Aaronson writes:
“In my view, a grievable dispute between a firefighter and her/ his supervisor that arises out of their supervisor/subordinate relationship, whether chief officer, captain or even acting captain, should be subject to resolution by management… I can foresee instances where, by circumventing the grievance process, management will never come to learn of instances where captains may have engaged in censorious behavior.”
UNION HOURS BANK
Most puzzling is the next section on the union bank of hours.
“While I did not get to examine the union’s financial record-keeping, it was asserted by a number of sources that the union has never kept particularly complete, let alone comprehensive, records to show where and how its money and bank of hours are used. I confess I was surprised to have this confirmed by Mr. Weist.”
Where I think perhaps Mr. Aaronson needs criticism is his persistent view that some of the complaints against the union or union issues rather than city issues. After all, we have a complaint in part that people feel to some degree retaliated against for speaking out, and yet Mr. Aaronson at the same time seems to put the onus on the union members to speak out.
Here is just the first of such examples:
“There is a common perception that the board members, and the president in particular, are using union assets for fancy meals, liquor and gifts, sometimes in connection with union conferences and sometimes not One person’s routine dinner out is another’s extravagance; I did not see it as my place to try to go through union records in an effort to distinguish one from the other. It’s the members’ money and their right and obligation to inquire if they wish.”
As Mr. Emlen mentioned even his report there are specific usages for the union bank of hours laid out in the MOU but the union never accounted for their use.
Mr. Aaronson continued:
“There is a perception amongst some firefighters that Chief Conroy has been one of the beneficiaries of the union’s dues and hours, in connection with her attendance at professional conferences. Chief Conroy categorically denied this to me. Based on her undisputed reputation for extreme ethical integrity, I credit her denial. But this is an example of the price the union (and the Chief) pays for the union’s lack of transparency in the details of how its assets are used.”
Mr. Aaronson then once again suggests that members should be entitled to these reports as a matter of course, but then puts the onus back on the union members to demand it.
Next the discussion of members and their participation in the political process. Here of course we get full unfettered access to Mr. Aaronson’s explanation that firefighters do not walk precinct in their uniforms but rather in their union attire which looks like uniforms but of course is not an effort at deception.
The key question is the Grand Jury charge of undue influence. Here Mr. Aaronson seems to question but once again put the onus on the union members.
“The GJR report alleged that the DFD management was exerting “undue influence… resulting in pressured political contributions to local candidates on the part of some DFD firefighters.” There is absolutely no evidence to suggest that management is doing this. No witness so directly asserted or indirectly hinted. To the extent that any firefighters feel pressured, it strictly comes from the union and not management.”
As Mr. Aaronson puts it: “it is universally understood that the union had an expectation that everyone would contribute.”
Mr. Weist saw this as a strength: “our strength is in that we are one.”
But Mr. Aaronson asks “but as what price?”
The next four paragraphs undoubtedly elaborate what price would be paid, but they are blocked out. Union loyalists and the board members argue that not all members contribute as evidence of non-force, but the rest of that paragraph is also blocked out.
Mr. Weist then explained that while there is an expectation of contribution not everyone contributes, and then the next sentence is blocked out, followed by: “A list may be kept, but that’s to keep track of who’s already given…”
Interesting that they keep track of that but not union bank of hours usage.
While we do not know what is in the redacted section of this, it cannot be good for Mr. Aaronson concludes suspiciously.
“When one reads of an election in a third-world country where the winning candidate received 99% of the vote, one does not think of democracy. Democracy is never close to 100%. While I understand and respect the desire for unanimity, I tend to place a higher value on free choices, freely made.”
Again, he punts though saying once again, “this, again, is an issue best left to union members to resolve.”
We then get to the centerpiece of the investigation–the promotional process. Mr. Aaronson lays it out at the start:
“Based on my interviews, the promotional process has been a flash point within the organization for over a decade. While it is not surprising that disappointed candidates and their friends will pass through phases of dissatisfaction, I was taken aback by the depth and longevity of such angry feelings in the DFD.
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.”
The Chief problem is that Chief Conroy allows herself the ability to select anyone who meets the minimum qualifications on the list.
There is a lengthy multi-page excerpt that is blacked out. This is undoubted speaking of the chief complaint from the GJR–that Mr. Weist was named police captain despite not being top on the list.
What is interesting is one of the few sentences in that section from page 24 to 27 that is not blocked out reads: “It does bear repeating, however, that no one faulted Rose’s selection.”
Obviously one issue that arose was the extent to which union work should be a factor for promotion. Mr. Aaronson argues both points, but his criticism is especially prescient:
“Allowing union activities to be weighed in promotion to supervisory positions creates an ethical dilemma for union people; if what you do as a union officer will be considered by management, doesn’t that impose a break on your willingness to wholeheartedly take on management?”
“Clearly, regardless of one’s opinion on the foregoing, it would be improper to factor in union work as management’s ‘payback’, positive or negative, for the candidate’s cooperation with or confrontation against management. The former would be favoritism/ quid pro quo and the latter retaliation. It may be that the be that the best argument against ever including union activities as factor is the risk of having it perceived as one form of payback or another.”
The next paragraph is blacked out.
RULE OF THREE V. RULE OF THE LIST
Mr. Aaronson then goes on to describe the factor in the promotional process he calls “what have you done for the department.” He does a cursory explanation and then from the middle of page 28 to middle of page 30 we have largely blocked out text. We know that this has something to do with assessments and areas of review, but it is sketchy at best to guess here.
He continues with an explanation that Chief Conroy views the assessment process as a determination of eligibility despite the fact that the department has a detailed spreadsheet with numeric scores assigned to each aspect for each candidate. We then have a length series of blacked out text for much of page 31.
Mr. Aaronson concludes:
“When asked by its membership, the union managers have stated that they “won’t deal” with membership concerns about how the Chief runs the promotional process. Bobby Weist confirmed this for me when we spoke. The chief’s having the pick of the list “for the most part worked for us,” he stated.
Apart from whether or not this is self-serving on the president’s part, it strikes me as shocking that a union would embrace a process whereby a member of management is allowed virtually unlimited discretion in who she promotes. It’s inconsistent with my own notion of the obligations of workplace representation by unions.”
Mr. Aaronson critiques the promotional process, seven comments, six are censored one-way or another. The fully readable portion deals with the inadequate transparency to the stakeholders.
The most interesting one is possibly the second, where he starts out, “If the purpose of the assessment center was” deleted “no more than to determine yes-no qualification, it was a waste of City money, department resources and employee time.” What in the world was bleeped out there? It is obviously more than a name based on the phrasing around the blacked out area.
The beginning of section five on the Fire Chief is blacked out in the first two paragraphs. They certainly have no problem showing Mr. Aaronson’s assessment of Conroy as a “genuine hero.”
Later Mr. Aaronson describes the Chief as “a polarizing person.” He then says something that is blacked out. He then says “it’s her fire department” and the next two paragraphs are blacked out.
Still later he suggests that a “significant minority of her employees, even loyalists, confess to being fearful of Chief Conroy.” This was followed by blacking out and then a description of a petition against her for uniform changes. Then the next three paragraphs are blacked out.
The incident of sleeping in the fire station drunk and the badging incidents are largely not blacked out, except probably to protect some names. These got the most coverage in the press, but to me were probably less concerning than the other issues.
Given that this report has been so heavily redacted, the Vanguard believes it has little choice but to press the issue further. California Public Records Act is fairly limited in recourses, but the ultimate arbiter in the case of a continued dispute is to litigate. The only downfall that the city suffers from if they lose is to turn over the documents and possibly pay legal expenses. That gives the city the incentive to withhold as much information that may be damaging as possible knowing the lengthiness and expense of litigation. The public and the public’s right know end up on the short-side of the stick on this one.
The Vanguard in this case believes that the public and at the very least the city council’s right to know outweighs other considerations.
The City Manager’s attitude is to trust him, but it is a difficult proposition when the City Manager’s account seems at odds with that of the investigator.
Nevertheless, the Vanguard believes that the investigator erred in two ways in the presentation of this report.
First, he seemed to punt on the issue of union abuses. The problem with his declaration is that the issue of retribution and retaliation has arisen. Clearly people did not and do not feel comfortable weighing and airing their concerns about union activities to the union president under these conditions. Therefore to simply state that possible misuses of money are simply a union matter is to veritably punt on serious allegations.
Second, while clearly the investigator tried to present a balanced view, and it is clear and never a bone of contention the high degree of service provided by the fire department, the investigator’s frequent use of such flowery language made it easier for the City Manager to argue for the half-full glass perspective. He could site chapter and verse of such declarations by the investigator.
The argument made by council is that such service level would not be nearly so high if indeed there were the problems described. However, we are not so sure about that. For one thing, there is a relatively low level of service calls in Davis compared to other locales. That leaves more time for interpersonal problems to arise.
The fact that the investigator seems more concerned than the City Manager should have raised a red flag. And yet the council majority of Mayor Asmundson, Mayor Pro Tem Saylor, and Councilmember Souza seemed scarcely interested in reading the full report, let alone concerned by what Mr. Aaronson told them. When Mr. Saylor started to uncover some of Mr. Aaronson’s findings he quickly ended his interrogation, clearly not wanting to find the answers to the unasked questions.
Finally there is a clear weakness in the Davis system that two councilmembers namely, Councilmember Greenwald and Heystek can request to see the full report but be denied by the City Manager whom they hire.
In the end that leaves the citizens of Davis with many unasked questions. The Vanguard will continue to try to find the answers to these questions as we continue proceed.
—David M. Greenwald reporting
Attached is the redacted report as provided to the Vanguard on February 20, 2009.