However, no matter how bad the individual conduct of an individual councilmember was that evening, it is not the worst thing I have seen from our city council. That distinction falls on December 9, 2008 when the Davis City Council voted 3-2 to abdicate their duties to the citizens of Davis.
That was the night the council majority on the Davis City Council voted 3-2 not to read the full report that the city, the taxpayers of the City of Davis, had paid for from the independent investigation by the City’s Ombudsman Bob Aaronson.
The extent of this cover up became more clear on January 13, 2009 and it was only in the past week that a new council and new city manager have allowed the public to see some of what the council majority, Bill Emlen, Bobby Weist and Rose Conroy did not want you to see.
In fact, the council majority did not even want to be able to see it themselves so as, I suspect, to provide plausible deniability.
On the night of December 9, 2008, both councilmembers Sue Greenwald and Lamar Heystek were adamant about seeing the full version.
“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,” Councilmember Greenwald said. “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 added, “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,” he said.
He added, “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.
Mayor Pro Tem Saylor said, “We actually employ those two [pointing at Harriet Steiner and Bill Emlen]. Those are the two we employ.”
“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,” he continued.
He added, “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.”
The words spoken by Councilmember Stephen Souza stick with me today, for some reason, however.
He said, “I don’t need all fifty pages, I just don’t.”
“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,” he added. “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.”
The decision made by the characteristic 3-2 vote eventually led to Bill Emlen writing a summary of the report that would be presented to the public. The council would be allowed to read a redacted version of the report in the City Manager’s office.
Mr. Emlen acknowledged the complexity of dealing with personnel matters. He told the council, “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.
The problem is that Mr. Emlen did not just redact the report, he sanitized it. He kept as much of the damning information about the fire chief and union president from the public and even the council.
And so when the city manager’s report finally came before council, it was clear that the city manager and the investigator had a strong difference in tone and substance of the findings.
Of course, it did not help that the matter was not heard until well after midnight on Wednesday, January 14.
As Mr. Aaronson put it at the onset: “Bill [Emlen] 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.
However, in this case, the city attorney was largely carrying the water of the city manager, who was under pressure from the firefighters unions, the fire chief and a council majority that the union had bought and paid for over the previous three elections to the tune of $32,000 in direct and indirect contributions.
Mr. Aaronson made it very clear in a very subtle way that they were withholding major information from themselves and the public.
Councilmember Stephen Souza asked Mr. Aaronson to characterize the differences in the “essence” of his report from the city manager’s summary.
Mr. Aaronson suggested three ways. First that the act of condensing a lengthy report into a few pages will change its content. “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.”
More importantly, he said, “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.”
That should have been an alarm, but at one in the morning with a council more wanting to bury than expose the report, they did not take the hint.
Finally, he indicated, “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.”
In other words, he was trying to say that City Manager Emlen was attempting to spin this in a positive light. We can see that as the report we received the next month left unredacted the most positive statements about the chief and the fire operations, while redacting most of the unfavorable statements.
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.
However, now that we can read much of the report itself, the issue of sleeping in the fire station while drunk can be seen as more of a nuisance than a huge problem.
The bigger problems were problems with off-duty firefighters drinking down town and the 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.”
Among the more serious was one that “may have encompassed a felony 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.”
Mr. Aaronson noted, “The matter should have been followed up more vigorously by the police department and the report should have been forwarded to the Fire Chief for an internal personnel investigation.”
Importantly for our purposes, until this latest redaction, the word “felony” was redacted despite the fact that there is no legal basis for such an omission.
As we reported last week, the most serious cover ups involved the fire chief’s favoritism in promoting Bobby Weist over objectively far more qualified applicants, the fact that the former chief acted on her prejudices in rewarding those she favored – those loyal to her – and punishing or at least overlooking those she deprecated.
On January 14, Don Saylor read from page four of Mr. Emlen’s report stating, “There’s no proof or incidence of retaliation or a hostile work environment.”
At the time Mr. Aaronson responded, “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.”
In fact, what we know now is that, “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…” He added that these employees “all professed to fear of retaliation for speaking out about organizational issues, particularly the role that favoritism seemed to play in punishing.”
Unfortunately, money was a factor in Mr. Aaronson’s investigation, and due to the amount of time it would take to follow up on specific incidents, Mr. Aaronson wrote, “I have refrained from formally investigating other alleged instances of favoritism because of the additional time that it would require.”
That fact enables Mr. Emlen to misleadingly tell the council that there was no proof or incidence of relations or a hostile work environment, when the truth is that they did not know and Mr. Emlen quite frankly did not want to know.
This is just one example of how far the council majority was willing to go in abdicating their responsibilities, not just to the public but to the 30 or 40% that Mr. Aaronson reasonably could say were discontented employees who feared retaliation and noted favoritism.
As Rich Rifkin wrote last week on the Vanguard, “This, to my mind, was the lowest point of the City Council in the last 10 years. It demonstrated to me that Saylor, Souza and Asmundson, who were all backed by the firefighters and who were close with our inept fire chief, would take the side of the firefighters over the interests of the public even when the grand jury and the ombudsman had found that there were serious problems with the management of that department and that the firefighters were misbehaving.”
He added, “In 2008, I was told by a high-level staffer at the time that Weist and Conroy were pressuring Emlen and the Council majority to quash the report.”
And that is exactly what happened. It will be up to public at this point to decide whether the cover up in this case is worse than the crime. There would appear to be very serious concerns about the fitness of the fire chief and the conduct of the union president that were covered up.
On the other hand, the cover up itself, the actions of the city manager with the willing help from Stephen Souza, Don Saylor and Ruth Asmundson, has to be equally appalling in an open society.
Today we honor the men and women who have sacrificed their lives in the service of this great country. Part of what we strive for in this country is democracy which requires open government and transparency. Those principles were undermined and eroded by three people that the public entrusted to act on their behalf.
—David M. Greenwald reporting