Wednesday, April 22, 2009

More on Lombardo and 'Public Citizens'

April 22, 2009, 10:15 a.m., 11:30 a.m. (addition of "What can the City Council disclose?" and Press-Citizen editorial)

And The Beat (-ing up of the City Council) Goes On
(brought to you by*)

[See the earlier, related, Nicholas Johnson, "River City's Problem: Council-Manager Governance," April 18, 2009; Nicholas Johnson, "Lombardo Firing Mystery," April 21, 2009; and see below for what the City Council can legally disclose should it choose to do so.]

Gary Sanders holds the highest office in the land: "Public Citizen." That doesn't mean he's always right, any more than that fellow who holds the second-highest office in the land (President) is always right. I've disagreed with both of them in this blog and elsewhere, and am about to do it again.

But Sanders is a real community asset in terms of the process he represents -- regardless of what you think of the substantive positions he may take on any given issue.

In this morning's Press-Citizen he's complaining about the job the media has done covering the City Council. He contends if it had done a better job we'd all understand why Lombardo was fired. Gary Sanders, "Lombardo deserved firing, press didn't do its job," Iowa City Press-Citizen, April 22, 2009.

(Not incidentally, a "Hat's Off" kudo to the Press-Citizen editors for their consistent willingness to run criticism of the paper on its own pages. How many of us would be willing to do the equivalent in our own lives?

And another, if you're wearing two hats, for the revelation in this morning's editorial that, "On Monday, the Press-Citizen put in a records request asking for all e-mail exchanges between Lombardo and members of the council in the past few months. We also asked for any e-mails between councilors in which they mention Lombardo. The city has 10 days from then to respond to the request, and we will report anything that helps shed light on Lombardo's firing -- whether in terms of procedure or cause." (And in this connection see, below, "What can the City Council disclose?") Editorial, "Questions About Lombardo Before City Can Move On," Iowa City Press-Citizen, April 22, 2209.)

And speaking of newspapers, they're not doing so well financially these days. They're looking for alternative business models. One involves greater involvement of the community in reporting, and commenting about, the news. The Press-Citizen already does it to some degree with its op ed page (where Sanders appears along with "letters"), the blogs it hosts on its online edition, and the comments it permits there regarding its stories.

Imagine what a difference it would make if 10% -- shucks, if even 1% -- of Iowa City's residents would take on the "Public Citizen" role. Any individual Public Citizen could pick a public body, or official, to track as closely as Sanders says he does with the City Council -- the School Board, the County Board of Supervisors, the Board of Regents; the campaign contributions and votes (and their relationship) of each of our representatives in Des Moines and Washington.

Newspapers have always needed, and to some extent relied on, news and opinion contributions from their citizen-readers. They need it now more than ever.

I am not in a position to challenge any of Sanders' factual assertions regarding Lombardo's failings and why the City Council was right to fire him. I haven't tracked the City Council very closely, certainly not as closely as Gary Sanders.

But even accepting everything he asserts as true I think he's come to the wrong conclusion.

He writes:
Anyone who needs convincing that Lombardo should have been fired should watch the council's April 13 budget priorities meeting . . .. For two hours, the council was perplexed, upset and angry that Lombardo had not come to this meeting with what they had asked him to do -- suggest recommendations on cutting the budget.

Repeatedly the councilors would say that they wanted him to . . . present them with choices and recommendations, . . .. And repeatedly, Lombardo said he wanted some kind of broad framework or parameters first. . . .

That to me was a direct work order, and Lombardo was unwilling or unable to do as they requested. In this country, that is grounds for termination.
As Sanders describes the meeting it seems to me that Lombardo was right and the Council was wrong -- and that, therefore, his effort to get the Council to do its job was not only not "grounds for termination" it was grounds for commendation.

For similar reasons I would disagree with the Press-Citizen's characterization of the meeting in this morning's editorial: "the council asked Lombardo to give them recommendations for budget cuts, and he seemed to fail to grasp why he should do that." Editorial, "Questions About Lombardo Before City Can Move On," Iowa City Press-Citizen, April 22, 2209.

As a School Board member I used to say, "Well, you may not get any pay, but at least you get a lot of grief." City Council members get both grief and pay -- not that it should make any difference. If you accept a public responsibility you have an obligation to perform, pay or not.

But the fact is that being a member of our City Council is a paid position. It carries responsibilities. And among those responsibilities -- as I have often written, including in the two earlier blog entries from this past week -- is to think about, develop, and write in precise language regarding the "governance" rules, expectations, responsibilities, and relationships by which Council members agree to live and govern. (There's a literature about this. I prefer the John Carver approach. Others don't like it. There are alternatives.)

It is not the CEO's (City Manager's) job to tell the Board (Council) members what he and the staff think the Board (Council) should establish as their priorities and measurable goals for the City (what Carver calls "ends policies"). That's what Council members get the big bucks for, and what properly can only be done by the Council. It's hard work, no doubt; but it's their hard work..

The Daily Iowan has a page-one story about the Lombardo saga this morning that quotes a county supervisor with whom Lombardo worked in a prior role as county administrator in Michigan. The guy obviously thought well of Lombardo -- but that's not my point in quoting him:
Bill Sikkel, then-vice-chairman of Allegan County, spoke positively about Lombardo.

“My style of leadership is to delegate, pick the right people, and get to work,” said Sikkel, a retired Army colonel, noting Lombardo understood that philosophy and worked well with him.

Sikkel also said the word “fired” surprised him — adding Lombardo was a “very nice man” to work with, a sentiment he said could be iterated by most of his staff.

“I was very unhappy when he left,” he said. “We were blessed to have him.”
Anna Lothson, "Firing Puzzles Some; City Manager Michael Lombardo's Sudden Firing Remains a Surprise -- Sparking Mixed Reactions," The Daily Iowan, April 22, 2009, p. A1.

So why do I quote this? Because what that county vice-chairman is saying is that the first thing he did was to "delegate." Properly done, those delegations would have been accompanied with "delegation orders" -- documents that would both require and reflect that county board's thinking, deliberations, and expression of its measurable goals, its priorities, and the tasks required to get there; the relationship between board members and their "county administrator." In short, it would reflect a process similar to the execution of a workable governance model, or statement of expectations.

Something along that line is simply indispensable. It is what Sanders' report would suggest Lombardo was, quite properly, asking for. It is what the Council was, to quote Sanders (in reaching the opposite conclusion) "unwilling or unable to do as [he] requested."

In short, as I've suggested in the prior two blog entries about Lombardo, it continues to appear to me that the conflict, leading to Lombardo's peremptory firing came down to, or was the casualty of, the Council's failure to exercise its responsibility to address issues of "governance."

What can the City Council disclose?

Some Council members, and commentators, seem to have assumed that because Lombardo's firing was a "personnel" matter the Council is, therefore, prohibited from saying anything about it.

There are essentially three categories of "public records" when it comes to access by the public and the media: (1) matters the agency must make public, (2) matters the agency may make public, and (3) matters the agency may not make public.

Personnel matters fall into the second, not the third, category in Iowa.

Section 22.7 of the Iowa Code does, indeed, begin, "The following public records shall be kept confidential . . ." and does go on, in subsection 22.7(11), to include, "personal information in confidential personnel records of public bodies including . . . cities . . .."

However, and this is an enormous "however," that opening sentence continues: "unless otherwise ordered . . . by the lawful custodian of the records . . .."

In other words, however much the City Council members may choose to tell the citizens of Iowa City about their 7-0 termination of Lombardo is entirely up to the Council; it's their call whether to keep mum or go public.

The reason we don't know what happened is because they have deliberately and expressly chosen not to tell us.

* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source -- even if I have to embed it myself. -- Nicholas Johnson

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Anonymous said...

There is a catch to that "unless otherwise ordered . . . by the lawful custodian of the records . . ..." clause.
It does not allow the release of a confidential record, it allows a record to be declared not to be confidential on the basis of the balance between public interest and privacy even if it otherwise fits a given definition.Clymer v. City of Cedar Rapids is probably the key case in this.
I'm not sure if Lombardo is covered by AFSCME, but if he is, it is unlikely that such a request would go unchallenged even if the City Council and Lombardo wished for the records to be released.

Nick said...

Responding to Anonymous Re: Clymer.

The applicability of the Iowa Supreme Court's holding in Clymer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999), to the facts in the Lombardo matter is not totally clear to me. The Clymer issue did not seem to be "the power and right of the agency (city) to make records public" but rather "the power and right of the media to demand they be made public." The issue I'm posing regarding Lombardo is "whether the City has the legal right to make documents public that relate to Lombardo's discharge."

The Clymer case does not appear to be a holding that Section 22.7(11) either compels, or forbids, an agency to reveal personnel records -- in the absence of objections from the employees whose records they are. The Clymer issue, it seems to me, was whether the public, or media, can force the agency to make public that which it would like to keep confidential -- under circumstances in which the agency believes the information requested is "personal" and the employees in question are asserting common law rights of privacy. It also raises the possibility that employees' common law rights of privacy could trump an agency's desire to make their records public, following a court's application of a balancing test (employees' privacy vs. public benefit and "right to know"). (Actually, in Clymer, the court seems to be saying that the employees in that case could prevent the revelation of some of the requested information, but not some of the other information (regarding sick leave pay).)

But I was not positing a case in which Lombardo would be going to court to prevent the Council from revealing why it acted as it did. I was presuming a case in which the employee does not object. Nor was a positing a case in which a newspaper would ask for personnel records and the agency (city) wished to retain their confidentiality. I was just suggesting that, those possibilities aside, it seems to me, as I read Section 22.7(11), the City has the right to reveal the information should it choose to do so.

Nick said...

Responding to Marigolds 4/22 12:47 p.m. (on the P-C's Web site, regarding its 4/22 editorial) who suggests the case referenced below would prevent the City Council from telling all about Lombardo's dismissal. I responded there:

As I read DMICSD Public Records v. DM Register & Tribune, 487 N.W.2d 666 (Iowa 1992) it is unrelated to my assertion regarding the City Council's legal right/ability to reveal details regarding Lombardo's termination. The Register case deals with two issues: (1) whether the records involved in that dismissal case were the kinds of records considered "personal" and "personnel" and "confidential" under Sec. 22.7(11) (it concluded some were and some weren't), and (2) whether, as to those that are within 22.7(11), the public or media may, nonetheless, get a court to order the school district to reveal such records as the agency wishes to keep confidential (it concluded the agency need not release them). In short, the issue of whether our City Council could release the records if it wished to (as I contend the act makes possible) was not before the court.

Marigolds said...

I think you definitely have the right frame of mind for the council to pursue in terms of at least attempting to release the records.
Reading over those two cases, it seems clear that 27.11 does not compel the city to keep the records confidential. I really think AFSCME is going to be the lynchpin on the issue. Lombardo's and the council's communications will include identifying communications with other staff. Lombardo himself no longer has a connection to Iowa City and has no incentive for revealing those records if there is anything in them that is the slightest bit damaging to him.
So, I don't think an attempt to release Lombardo's personnel records as public is going to pass by without a court challenge, but the council could certainly attempt it.
Could be worse, at least this has nothing to do with GIS. :)
BTW, just noticed your past credentials. Do you ever keep track of what's going on with the city cable commission?

John Barleykorn said...

They cant disclose what went on in an open meeting since Lombardo signed the form. Thats right out of Chapter 21. They are wise to say nothing lest it become even more expensive than $80,000.