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Wow, what a weird night on Commonwealth. Let’s hope that everyone got tipped appropriately for the holidays.
Many folks believe that the foundation of democracy is majority rule. It’s not. The foundation of democracy is due process, or equality under the law. It’s what prevents the rights of the minority from being trampled by the will of the majority. Without it we get tyranny, which is an overused word to represent government by will rather than law.
As we all know, people are not perfect. We all make mistakes and sometimes our enthusiasm for what we want gets the better of us. Our elected officials should have a quality about them that reinforces their ability to exercise restraint. We didn’t see that quality last night in Fullerton. As a result, we got a popular decision instead of a logical one.
There are some good things about entering into negotiations with Dan Hughes for the role of Chief of Police. All of them were articulated last night. If the position were an elected one, I have no doubt that Mr. Hughes would secure a majority vote– not because it’s necessarily what the majority wants, but more so because it’s very unlikely that he’d have a legitimate challenger. After all, who wants to run for office against a loved man?
I’m not going to take issue with any of those points, save one: Hiring Dan Hughes moves the city forward and allows it to heal.
That’s total bologna. It allows some of us to heal. By some, I mean those of us who would like to forget that July 5, 2011 ever happened. Those of us who value what we want over the rule of law. Those of us, as Mr. Chaffee put it, who feel that a Chief of Police is better than an oversight commission composed of citizens who are neither beholden to a union who supports them or to a taxpayer issued check/pension.
For the 40% of us to do value due process, we didn’t hear one (not one!) argument for why not posting the position and accepting applications isn’t a good idea. We heard that it might be a waste of time and money because were not going to find anyone better than Mr. Hughes to run our police force, but that’s an attack on the conclusion of the process and not the process itself.
Here are the consequences of last night’s vote:
The city of Fullerton now has no job description, no qualification requirements, and no hiring process for its Chief of Police. This is unprecedented for a city of our size. It’s also an embarrassment. We have some documents that used to apply, but none that actually do.
There’s no requirement for prior police service, no requirement to live in the city, no requirement to obtain a senior rank in a police force, no education requirement, no years of service requirement, and no requirement to demonstrate an ability to conduct an investigation and dispense discipline. Hell, there isn’t a requirement to be able to drive a squad car or shoot straight.
In other words, should I secure majority support from the council, I could be hired as our next police chief in a closed session, with no public input, no job posting, no job application, no interview, and with less than a week’s notice to the public. The city could agree to pay me $300,000 a year and there’s not a damn thing you can do about it.
The next thing you know, we’ll know we have a new chief based on the color of the smoke emanating from the backroom at City Hall. Oh wait . . . that process has at least two more requirements: The Pope has to be 1) Catholic and 2) Male. That’s two better than us.
Believe it or not, this kind of thing used to happen all the time. It was so bad, that a President was assassinated over it. We enacted Civil Service requirements as part of the fallout. Our goal in enacting reform was to remove some subjectivity from public employment and de-politicize key roles that allow our government to function. You’ll hear our system of transparency referred to as The Merit System. It applies to all levels of government: Federal, State, and local.
Very few public jobs are exempt from The Merit System. Those that are tend to be intentionally political in order to allow elected officials to enact policy. The pool is restricted to eliminate an elected official’s ability to dole out political favors (think exchanging the entire government after ever election– it’d be chaos.) In California, municipalities are limited to appointing an executive officer (city manager), commission appointees, and some secretaries without going through the merit process. Counties and the State have broader exemptions, but the same principles apply: For day-to-day jobs, the Merit System rules. We don’t want Mr. Cantor running the police force and our civil service reforms provide a system check to ensure that doesn’t happen.
The government enforces the merit system by attaching funding to compliance. If a government (state or local) wants to run a system based on hiring one’s lackeys, we’re free to do that– we’re just not free to fund it with tax payer dollars.
To borrow some language from a commentor last night: “You can’t just fire people. There are rules.”
Well, turns out, you can’t just hire people. There are rules.
Read all about the Local Agency Personnel Standards (LAPS). Here are my favorite highlights (emphasis added by me):
§ 17110. General Requirement.Recruiting. selecting and advancing employees shall be on the basis of their relative ability. knowledge and skills, including open consideration of qualified applicants for initial appointment.
§ 17111. Recruitment.Recruitment efforts shall be planned and carried out in a manner that assures equal employment opportunity and open competition for initial career service appointment for all job applicants. Basic recruitment efforts for entry into the career service shall include posting of examination announcements in appropriate public places for a minimum of five working days to ensure that an adequate number of candidates will apply.
§ 17112. Selection. . . (e) Non-status appointments shall not be used as a way of defeating the purpose of the career service and shall have a reasonable time limit. As a general rule, reasonable time limit is one year. If lists of eligibles are available, they shall be used for filling temporary positions. Short-term, emergency appointments may be made without regard to the other provisions provisions of this section, to provide for maintenance of essential services in an emergency situation where normal procedures are not practical.
§ 17200. Employment Covered and Exempted from Standards.. . . (b) The following positions may be exempted from application of these standards: . . . the executive head of an independent local agency or department administering programs covered by these rules; deputies who share with executive head authority over all major functions in covered local agencies or departments . . .
The reason that job postings, applications, and interviews are considered generally accepted good human resource practice is to due an entity’s obligation regarding equal opportunity law. Not only are application records and supplemental questionnaires required to be retained by federal law, they’re the only source of documentation the city may use to defend itself in a discrimination lawsuit.
So, let’s say a qualified woman were to sue on the basis she was denied an equal opportunity to compete for the Chief of Police in Fullerton . . . what would the city use to defend itself?
*chirp * chirp*
That’s right. Nothing. Not a damn thing. Why? Because there is no record of a job being posted, an application, an interview . . . nada. The reason? Politics, which is pretty sick considering we have two attorneys sitting as council members. No one, not government, not business, NO ONE, makes a critical hire like Fullerton just did without a documented hiring process. This includes facilitated moves at major Fortune 500 companies for senior management.
I’m neither a woman nor a cop, but if I were and I were getting ready to retire . . . I know just how I’d get my new boat.
Back to the meeting, the city attorney made some comments about Fullerton’s Resolution 8485 last night that were in error. He stated that the resolution didn’t apply to the Chief of Police because the Chief’s position was now directly appointed by the council, an exempt classification. Furthermore, the status of “department head” is now an at-will employee rather than a regular employee.
There are a few problems with this analysis.
1) Mr. Jones formed his opinion in less than five minutes during a break while everyone else was using the restroom. Perhaps Mr. Jones was multi-tasking. I sent questions regarding 8485 into the city two months ago, including questions on its applicability to council appointees. I received no reply, but you’d think he’d have more than three minutes to review the resolution considering my advance notice. No effort to understand actions from the past was made. No effort to interpret the resolution using applicable federal and state laws was made. Instead, we got the ol': “I’m an attorney and I say it doesn’t apply.” routine instead of some rationale for why it doesn’t apply.
2) The council never intended to override the recruiting requirements listed in resolution 8485 when it voted to directly appoint the Chief of Police this summer. The resolution was not listed by the clerk as being changed and no discussion on changes to the hiring process were presented to the public (or proposed by the public). As the proposed change was novel, it is not reasonable to conclude that the exemption specified in 8485 includes significant changes to the structure of Fullerton’s government post-adoption. In all likelihood, the definition was used in the early 90’s to save space as the council (at the time) could not foresee department heads being directly appointed by the council. This is supported by the specific mention of department heads in the resolution as being applicable to the city’s civil service code.
In other words, absent expressed intent to modify the resolution, it’s unreasonable to assume that 8485 doesn’t apply to the chief of police. I’m a bit confused at Mr. Jones stating that department heads are “at will” employees as the job classification doesn’t exist in the municipal code. Regardless, the Chief of Police is not an at-will employee due to POBAR and still qualifies as a regular employee, which is why he gets a pension paid for by Cal-PERS. The only mention of an at-will employee in the code is the City Manager, whose only restriction on dismissal is immediately following an election.
3) Res 8485 was written to demonstrate the city’s conformance with Cal. Code Regs., tit. 2, § 17010-17592. You’ll notice common language between the two. Without Res 8485, Fullerton cannot demonstrate conformance with federal civil service laws (i.e., the Merit System) and is ineligible for certain state and federal funding programs. In other words, it’s our local short hand for the Interagency’s Merit System rules, which are administered by the State Personnel Board.
So . . . what does that mean?
Well, I have no idea. I could be as simple as getting a waiver approved by the State board. It could be as painful as losing all federal and state funding, including funding for DUI checkpoints. You know who should know? The city council.
Guess what– they have no idea. I know that because they didn’t ask. They just railroaded it through.
Regardless of the consequence, the sad part of all of this is that this should have been a really simple problem to solve. Post the job, take applications, conduct interviews, and hire a chief. Three to four months if it’s done right– but hey, that’s why we have politics . . . no excitement without a healthy dose of railroaded stupidity!
So much for due process. There isn’t one good reason why the council couldn’t have followed generally accepted good human resource practice, federal law, state law, and local practice: Let’s hope that three minutes that Mr. Jones spent in the back room doesn’t cost us too much . . .
Anyway, Merry Christmas Fullerton. You got what you asked for.
*Also– the vote to enter into negotiations could have been 5-0 but for the majority’s insistence that the negotiations not be predicated upon inclusion of a citizen’s oversight committee– a recommendation of the Gennaco report. During the discussion it became very apparent that last night was the first time Mr. Chaffee had reviewed the citizen’s proposal stating it was cost prohibitive, which is quite sad. There’s absolutely no evidence that the other members of the majority take the committee seriously. So much for unity, healing, and generally getting the point . . .