“On April 24, 2013 I was told by the City of Davis that it intended to release the 2008 confidential report on the investigation of the Fire Department, unedited, which it had hired attorney Bob Aaronson to conduct,” wrote former Davis Fire Chief Rose Conroy on June 19 in a piece that was published on June 24 on the Friends of Davis Firefighters website. “I had never been given or even seen an unredacted copy of the report while employed as the Fire Chief; in fact, I had only seen the redacted version when it was released to the public last year. “
What the chief does not tell her readers, of course, is that that was by her own doing and that she had been offered the opportunity by the city to read the full report at the time of its release, and she declined to do so.
She continues, “At that point I did not know what was in the remainder of the report except that the blocked out portion revealed personnel information and conversations that I and the other members of the fire department had been told would be kept confidential. Even though I am now retired, I felt I had to try to stop the City from reneging on the promise of confidentiality it had made to me and everyone else.”
“I was also concerned that the report itself was not accurate because of what I read in the redacted 2012 version, and that is completely unfair to me and the many others who spoke with Mr. Aaronson after being told that our conversations would be kept confidential,” she writes. “After serving the City of Davis for many years, I do not think it is proper to release confidential personnel information. Nor is it ethical to tell an entire department’s employees that their information will be held in confidence, and then to decide that it is more expedient to release the Report to avoid the cost of protecting that promise of confidentiality.”
The former chief continues, ” I have many questions and concerns with how the City has managed this report, including both its actions and inactions toward the current and retired personnel of the Davis Fire Department, including me.”
The reader can read her thoughts in their full form, in context and uncensored here.
Naturally, the Vanguard has some disagreement with the former chief. It would have been interesting had the former chief maintained the legal fight. One of the reasons she likely did not is that it is far from clear that she would win it. In fact, even before she had decided to withdraw, Judge Dan Maguire had ruled that the chief had not made a showing that she was likely to prevail on the merits.
We have little doubt that the chief was promised confidentiality, however, it is less clear by whom and whether the city could legally promise confidentiality. The public records act allows for certain exemptions, but it is clear from reading through the full report that the city had previously redacted portions of the report that would not legally have withstood scrutiny.
Most of the report was not confidential personnel information, as by design there were few direct references to employees. To the extent that the city has an obligation to protect employees, its obligation extends to those who come forward as whistleblowers, rather than those in management who are accused of wrongdoing.
Defense of Bobby Weist’s Promotion
The chief makes an interesting defense of her promotional process. She writes, “The City of Davis and its investigator did not mention in the report that every promotional process I was involved in, including the promotions which occurred in 2007, was done in complete compliance with the City’s personnel rules and regulations.”
She continues, “I am very concerned that Mr. Aaronson did not mention that in his report, which gives the impression that the City’s rules and policies were violated in order to promote Bob Weist. Nothing could be further from the truth. All of the City’s policies, rules and procedures were followed in that process, as they always were.”
She writes, “People were promoted from all over the promotional list, whether they were last on the list, first on the list, or in the middle of it. And in every instance, I promoted the person I felt was the most ready and most qualified.”
“I had previously passed over Bob Weist for someone who scored much lower than he did on a previous promotional assessment and there was no commotion; but there was oddly no mention of this anywhere in the Aaronson report,” the former chief writes. “Being the Union President or being involved with the labor group was neither an advantage nor a disadvantage; I would certainly not discriminate against Bob Weist’s or anyone else’s participation or position in the labor group. Nonetheless, for some strange and unexplained reason, this promotion was chosen as an example of wrongdoing – even though it was in accordance with all of the City’s rules and regulations.”
She concludes this section by writing, “Why didn’t Mr. Aaronson and the City of Davis provide the most important public information about this promotion, that this promotion was completed in compliance with every rule, regulation, policy and procedure, just like every other promotion in my sixteen years as fire chief.”
Here the chief appears mistaken. It becomes clear to the careful reader that, in fact, the chief in the end could select anyone she wanted to promote.
Bob Aaronson wrote, “Of course, Chief Conroy need not have gone to those lengths. As she repeatedly reminded me, “We have a pick of the list … I get the pick of the list.” She can select anyone who meets the minimum qualifications.“
So she can argue that Mr. Aaronson did not outright state that everything in her process complied with the city’s rules, but she cannot claim that Mr. Aaronson implied otherwise.
The problem that Mr. Aaronson identified was not that she broke the rules, but that the rules allowed for the appearance of impropriety.
He quickly follows up, writing, “In her view, the purpose of the assessment process is no more than to determine eligibility, despite the fact that the department creates a detailed spreadsheet that gives exacting numeric scores to each aspect for each candidate, concluded with the necessary mathematical calculations to articulate finals scores and rankings.”
The chief also neglects to mention that, following this report, the city, following the Grand Jury’s recommendation, radically changed the rules for promotion that would have precluded the promotion of Mr. Weist.
The process allowed Ms. Conroy to override “the multi-part determinations, and its protections against evaluator/tester bias, when she ignored the results and simply picked who[m] she wanted.” It was so flawed that the Grand Jury itself ordered the city to re-examine its promotion testing and selection process.
The city’s entire process was revamped, though it was acknowledged the biggest problems with it were within the fire department. Key portions of the process have been removed from the auspices of the hiring department and put into the hands of Human Resources, who screens applicants for minimum qualifications.
The policy now reads, “The Police and Fire Departments in conjunction with Human Resources will perform additional testing in the form of assessment panels.”
The policy adds, “Those failing the assessment panels will no longer be considered and will not move forward to the department. All applicants passed forward by Human Resources will be given in alphabetical order and all must be interviewed by the Department Head of the hiring department.”
So, yes, the chief is correct that she broke no laws – the problem is that the laws on the books were so flawed that even under the leadership of City Manager Bill Emlen, they completely re-wrote them.
The former chief argues, “The City of Davis and the City’s investigator, Bob Aaronson, promised confidentiality to all fire department personnel regarding discussions of personnel and personnel matters. The City of Davis has reneged on that promise, in effect lying to all fire department personnel.”
There are several different problems with this claim. First, Ms. Conroy ignores the fact that the entire city staff and city council turned over between 2008 and 2013. The new staff had a different opinion than the old staff. But the critical problem is that the 2008 staff probably made promises that it could not legally keep and would not have been upheld under the law.
She then writes, “The City of Davis’ investigator, Bob Aaronson, used unsubstantiated third party statements as a foundation for his accusations, as though he, who was not present during the promotional interviews nor an employee in the department, knows who the most qualified persons are for promotion.”
She adds, “It was not his job; it was mine, and I did so to the best of my ability on behalf of the City of Davis.”
How accurate this charge is remains somewhat unclear. What we do know is that Mr. Aaronson writes that he “spent time discussing the details of the last promotional process with Chief Conroy.” He had access to the hiring protocols and he had access to the results of the tests.
Mr. Aaronson had access to the assessments and writes, “Only one candidate scored over 90% in the assessment. Out of a maximum assessment center 530 points, the top candidate received 503, equivalent to 95%; he was the union vice president and one of the two candidates who was promoted. The next highest score, by the second highest ranked candidate, was 89%. Three candidates scored over 85% and six over 80%. The lowest score, which was still passing, was a 71 %. Bobby Weist finished ninth with 75%.”
So, while he did rely on some third party assessments, he also spoke with Chief Conroy about the process and she had an opportunity to clarify the process.
In fact, he also received her “forced rank sheet” which “includes everything she considered and it represents the final ranking of all candidates. It includes her interviews, her review of the candidates’ records and the information from the assessment center and the division chiefs.”
In a footnote, he notes that on October 10, 2008, he received an email from Chief Conroy acknowledging that she did not answer one of his questions as well as she could have. She then explained the promotional process and how she arrived at her decision.
The bottom line is that Mr. Aaronson hardly relied only on third party claims – he simply in the end gave them more credence than Rose Conroy’s own testimony.
Ms. Conroy then attacked the credibility of the report, as she writes, “I will concur with the City Manager and City Attorney who, when they received the report from Mr. Aaronson, told me it was deeply flawed and poorly done.”
Unfortunately, without concrete examples of the flaws of the report, we are left with little other than an assertion.
As I have noted previously, however, Mr. Aaronson noted that there were “at least a couple of dozen distinct allegations of retaliation and/or harassment. ” At the same time, he noted, “I would estimate that investigating even just five of them might consume as much as 100 or more investigative hours.”
So the shortcomings of his report were noted by Mr. Aaronson himself, and he simply was not given the resources to follow through.
She writes, “I have read it several times, and it seems as if Bob Aaronson felt he was a firefighter himself when he wrote that he would be proud to count many of the firefighters as friends. Mr. Aaronson was an investigator, not a buddy or comrade; he was supposed to investigate, be an examiner and detective, and report facts, not repeat unsubstantiated allegations from disgruntled employees.”
I think the comment that Mr. Aaronson felt he was a firefighter himself was ludicrous.
He interviewed numerous individuals about their concerns, he went into detail on the promotion of Bobby Weist, but acknowledged that, in order to go into greater details on other cases, it would have taken hundreds of hours.
She seems to understand that “Investigator Aaronson himself admitted that the money allotted by the City for the report was inadequate and prevented him from spending the necessary time on the investigation.”
She adds, however, “Unfortunately for me and for the Department, adequate funding would have proven that these allegations had no merit.”
That is, of course, an unprovable claim at this point. However, one thing I do agree with it – it would have been better had Mr. Aaronson been given the resources to do the full investigation at the time. Funny that Ms. Conroy wasn’t making that argument back then.
—David M. Greenwald reporting