Vanguard Commentary: No Reportable Action Means We Will Never Know

city-hallThe Davis City Council went behind closed doors for over an hour and a half before Mayor Joe Krovoza poked his head out the door and told the two members of the public – actually reporters – that there was no reportable action.  That means that City Manager Steve Pinkerton will most likely retain his job and have his contract renewed, but beyond that we know little and that is not right.

In a city manager form of government, the most powerful figure is the city manager.  This is not simply a personnel action, because, while the city council hires the city manager and makes policy decisions, the city manager is in charge of enacting the policy.  The city manager is the single most powerful figure in city hall.

In my time on the Vanguard, one of the most concerning aspects of public policy is the degree to which public officials can hide behind personnel action, and in the court system and the school district, the laws used to protect minors from being exploited or exposed are often used to protect public officials from scrutiny.

Just before the Vanguard was born, the Davis City Council fired City Manager Jim Antonen.  Over the years, reasons for that firing leaked out, but at the end of the day, most of that is speculation.  We never had a public accounting for his firing.

So here are some of my concerns.

First, we have heavily-reliable accounts that there was an active effort to fire the city manager.  Some of these reports linked the effort to fire the city manager to an ongoing dispute with the firefighters’ union.

We will never know – at least officially – whether there was an effort to fire the city manager.  We will never know which councilmembers took up that effort.  And we will never know if there was a vote or what that vote was.

Hiring and firing a city manager is one of the most critical duties that a city council has.  And yet, due to personnel laws, we have no transparency and oversight over that process.

The biggest problem is that, by protecting the city manager’s rights as an employee, we lose the ability to hold city councilmembers accountable for their actions.

When the Davis City Council voted 3-2, for example, to reduce fire staffing from 12-11, we had a public discussion.  Each side was able to publicly state the merits of the proposal or why they were opposing the proposal.

Maybe we agree, maybe we disagree as to the ultimate decision.  Maybe we believe based on that decision that one or two councilmembers were attempting to curry favors with the firefighters’ union.

We also have a track record.  For example, Lucas Frerichs voted against not only changes to fire staffing but also to the shared management JPA.  On the other hand, Dan Wolk voted against the changes to fire staffing but for the JPA.

Their public records allow the voters to assess their public performance, see whether they agree or disagree with the votes, and later make a determination as to whether or not to vote for them in the next election.

That is how the public process is supposed to work.  There is no hidden vote or secret agenda – the discussion and the votes at least are there for everyone to see.  We even get to track campaign contributions to see if there might be a link between money and votes.

That did not happen with regard to the city manager.

We will never know whether there was a vote on whether to retain the city manager.

We will never know who voted to retain the city manager and who wanted to terminate the contract or allow it to expire.

We will never know what problems the councilmembers had with the city manager.

We will never know if outside influences pushed certain councilmembers to take the position that they did.

In fact, this assessment, this need to know, has nothing to do with the city manager anyway.  This is about the elected councilmembers and the public being able to monitor, scrutinize and hold them accountable for some of their most critical actions.

This is not a problem that is limited to the city manager model of government.

We have had situations where high school students have believed that they were wrongly suspended and wrongly treated; where junior high school students have complained that the district has failed to properly protect them from bullying; and where we have not been able to monitor, investigate or scrutinize the actions of the district because of student privacy laws or personnel laws.

We have had situations where juveniles have believed that they have been improperly charged with crimes but have not been able to investigate because of laws protecting juvenile records – where these privacy laws have, instead of protecting the juvenile, acted as a shield for authorities to escape scrutiny.

We have had cases in this community where coaches and principals with the school district have been fired or their contracts not renewed, with claims of impropriety that we cannot monitor because of personnel privacy laws.

It is easy to say we should trust our elected officials, but we know from the history of misconduct by public officials that there are times when wrong occurs and the only way that we find out about it, the only way we can scrutinize it, is through a public accountability.  We need to trust, but we also need to be able to verify that they are living up to their public trust.

Interestingly enough, in the other situations cited we are talking about juveniles, teachers, principals, and other relatively low-level and low-profile individuals.  The city manager form of governance for cities puts the city manager at the pinnacle of power.

The city manager operates much as a CEO of a board of directors or an executive director.  The city manager is the head of the staff that runs the city.  The board – in this case the city council – is only in charge of policy direction and the hiring of the city manager and city attorney.

That is a tremendous amount of power, to hire and fire and to change policy, and only the city council holds them accountable and only in private.

There needs to be more transparency and accountability in this process.  The city manager, like the superintendent at a school district, is not just any employee.  The city manager should not be governed under the same laws that protect public works line workers, teachers, custodians, and other low-level employees.

Obviously this is not something that council can resolve.  However, the community at its core needs to be able to monitor its elected officials, and any time they can operate off the grid is a time when malfeasance can creep into the process.

What we know is that the firefighters’ union president bragged that he had the votes to fire the city manager by December.  We know that this has not occurred.  But we do not know much else.

—David M. Greenwald reporting

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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23 Comments

  1. medwoman

    [quote]Obviously this is not something that council can resolve, however, the community at its core needs to be able to monitor its elected officials, and any time they can operate off the grid, is a time when malfeasance can creep into the process.[/quote]

    I agree that there is certainly a need for monitoring of the actions of elected officials. If this is something that the council cannot resolve, do you see any possible solutions ?

  2. medwoman

    [quote]What we know is that the firefighters union president bragged that he had the votes to fire the city manager by December. We know that this has not occurred. But we do not know much else.
    [/quote]

    There are two ways to look at the assertion that one “has” the votes needed to attain a desired goal.
    One can choose to view this statement as “bragging” which carries with it an implication of power or perhaps undue influence. Or one could choose to view it as simply a statement of fact in which three council members are known to favor a one’s own view. For instance Alan Pryor might have stated that he “had” four “no votes” on fluoride without any suggestion of nefarious “back room” dealings.

    While I agree with the majority of points made in this article, and I suspect that David’s interpretation of the statement by Mr. Weiss may be a valid representation, I also think it is important to consider one’s own biases in deciding whether or not a statement is indeed “chest thumping” in anticipation of victory, or simply a
    “head count” whether accurate or not.

  3. David M. Greenwald

    No I don’t see any solution unless the legislature changes personnel laws. I’m sure people who work in HR can cite me chapter and verse as to why that should not happen and I think for the typical worker, I agree that the harm would outweigh the benefit. But Superintendents and City Managers are not typical workers. They are basically public officials and should be scrutinized publicly.

  4. David M. Greenwald

    medwoman: I would just suggest that it doesn’t really matter how we decide to interpret Bobby Weist’s comments. My concern is that there appears to have been action at the end of them and we don’t know in the end what that entailed.

  5. ebowler

    This has highlighted a significant downside to the City Manager form of government. Maybe it’s time for the citizens of Davis to rethink.

    Is the City Manager able to discuss this matter or is he precluded as well?

  6. Phil Coleman

    For a more open examination–and discussion–of personnel-related matters involving government employees, we’d need legislative changes at the State level.

    I would support full disclosure of all aspects of a personnel action, save for one category. Actions involving medical conditions and circumstances would be off-limits. I would add the stipulation that the release of such information is immune from civil action except for malice.

    There is another facet to shielded personnel matters that frustrate public accountability for personnel-related actions of/by public employees. For some reason, it’s never included in the “transparency” argument.

    While an employer is legally constrained from speaking, employees who have been sanctioned can speak freely. They can give a highly distorted, or totally false, representation of the circumstances of the sanction than invariably favor the employee’s position. The public agency is naturally asked by the public and press for a response. And they can’t.

    Were we to change the existing legislation, I would urge that public administrators can speak on a personnel matter should the employee initiate public comment.

  7. B. Nice

    Maybe council was considering other factors besides the firefighters wishes when they made their decision. Could they not have votes against Pinkerton, even if they had other legitimate concerns with his performance, without looking like they were caving to the firefighter’s union?

  8. Ryan Kelly

    I receive an annual evaluation by my supervisor. This is a personnel action that is confidential. This is not news. The City Manager’s evaluation is only news, because one union is interested in having him fired. If I had a co-worker that wanted me fired and complained publicly, my evaluation would still be confidential. That wouldn’t change.

    Your concerns about Juvenile Justice can be taken to a juvenile justice oversight body, such as the Yolo County Juvenile Justice and Juvenile Delinquency Commission, whose members are sworn court officers and have full access to juvenile court records.

  9. Frankly

    I agree 100% with Ryan Kelly. I would prefer that we have a fully-disclosed goal-performance balanced score card for the city manager, but the details of that evaluation should be off limits for the public. Otherwise we are making staff positions into political positions.

  10. B. Nice

    Full disclosure of personal decisions wouldn’t guarantee a transparent process. It’s not like they would say on the evaluation “Weist doesn’t like you and we are in his pocket so your out”.

    Do they have to even give a reason for not renewing a contract?

  11. Mr.Toad

    “Their public records allows the voters to assess their public performance”

    There are enough public votes to evaluate the CC members.

    Do you want to know what happened to evaluate Pinkerton or the CC? In either case you already know enough to make your determination without knowing every detail of every meeting. “Let it be.”

  12. JimmysDaughter

    I agree with Ryan. Also agree with Phil Coleman’s statement:
    “For a more open examination–and discussion–of personnel-related matters involving government employees, we’d need legislative changes at the State level.”
    I absolutely agree that medical conditions are no one’s business.
    I worked for state government for almost 34 years. If applicants know when they sign on that their performance reviews are public record, it’s okay because they accept it when they’re hired. I was never upset when the Sac Bee used to publish the website to see the salary levels of different jobs. But I never liked it when the state published a list of the agency where people worked. I know of at least one instance where a battered woman was tracked down at her state agency because it was public information. I guess that’s just the price of being a state worker. Several years ago they gave me the option to not publish my name in the state directory, and I opted for that privacy.
    I’m not sure if it’s necessary to publish Mr. Pinkston’s performance appraisal.
    On the other hand, it would be good to know if a public employee has been disciplined. But the people who write the reviews have their own biases. They are not judges or professional H.R. people. They are not always qualified to write an objective review. I have read reviews when I hired people. Some of the reviews were very poorly written.

  13. eagle eye

    It seems the city clerk would know how this meeting came to be agendized in the first place. Did the city manager set the meeting himself, or, perhaps, was there a series of illegal and secret phone calls amongst the city council members to reach agreement to hold the closed meeting?

    Was the city manager’s evaluation agendized for discussion, or for action?

    If there was a vote during the meeting, I believe the council should have gone to open session and the vote should have been announced.

  14. Mr.Toad

    “was there a series of illegal and secret phone calls amongst the city council members to reach agreement to hold the closed meeting? “

    A probability so small its fair to say this just isn’t how its done. Personnel issues are always conducted in closed session.

  15. B. Nice

    [quote]It seems the city clerk would know how this meeting came to be agendized in the first place[/quote]

    I’m assuming it’s standard procedure to evaluate a city manager when their contract is up for renewal?

  16. SODA

    What I have not heard discussed is the interesting term of his contract: 9 months of severence if he is let go between Dec 2 and Sept 2014. What if his performance decreases between now and then OR the CC gives him some MBO criteria to work on and he doesn’t. Seems the terms have the city penned in.

  17. eagle eye

    My point was that the meeting was scheduled/held at an odd time, and at the last minute. Closed isn’t the point. As Nice points out, evaluation might be standard procedure, so why was the meeting scheduled at the very last opportunity, and who wanted the meeting? It does not seem to have been held in the normal course of business.

  18. B. Nice

    [quote]What if his performance decreases between now and then OR the CC gives him some MBO criteria to work on and he doesn’t. Seems the terms have the city penned in.[/quote]

    Is there a difference between him be fired for some cause, and being just let go, because council wants to make a change? If he does something that violates his contract in the 9 months, would they still have to pay him severance?

  19. J.R.

    Finding out what happened inside that room should not be that hard. It’s not plausible that this many people know and will keep it secret. Revealing what happened would take some digging, but that’s what good reporting requires.

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