Former City Manager Emlen’s Whitewash of DFD Report Revealed

On January 13, 2009, the City Manager in the city staff report gave his own analysis of the report completed by the city’s ombudsman, Robert Aaronson.  For a time, this was the only available version of the report – certainly the only report available to the public until on February 9, 2009, the city released a heavily-redacted report to the Vanguard.

Wrote Mr. Emlen of the purpose of his report: “Our objective through this process was to elaborate on the issues raised and either dispel as warranted, or confirm and set the table for follow-up actions.”

Mr. Emlen argues that, in Mr. Aaronson’s report, he believes “his comments and results to be balanced and well-informed.”

Our analysis is that Mr. Emlen’s report emphasized the positive and downplayed if not omitted the negative.

For example, immediately Mr. Emlen downplays the findings, writing, “It became apparent shortly after taking on this assignment that a substantial portion of the specific factual incidents alleged in the GJR (Grand Jury Report) are at least five to ten years old.”

This allows Mr. Emlen to write: “In that respect, some perspective is in order. Putting any department or organization under the microscope for an extended period of time will likely reveal some issues or incidents. It is also likely, particularly when you have longevity of employees such as currently exists in the Fire Department, that there will [be] some degree of discontent with management or the status quo.”

Mr. Emlen then highlights the positive:

In that respect, “The report notes for perspective purposes the following:”

Mr. Emlen is therefore able to report, “The overall outcome of this investigation gives me confidence that the Davis Fire Department is a highly professional and well-run organization that provides excellent service to this community.”

All of this is good, but if the department had made strides in the past decade, one can only imagine how bad it must have been for Mr. Aaronson to believe that a full 30% of the department could be called dissatisfied and that a sizable number feared retaliations from the chief and union loyalists for speaking out.

Mr. Emlen is quick to jump to positive conclusions.  For instance, as he summarizes the conclusions, he simply states: “Management issues related to Shunning and Favoritism. The report suggests that this is plausible, but there is no direct evidence to prove that this has happened.”

Mr. Emlen abridges a huge section to say: “There are still a group of employees who could reasonably be described as disgruntled… I found no evidence that either the Chief or the union explicitly directs anyone to be shunned or ostracized. Based on the interviews, any shunning is more a reflection of those employees that have become so polarized that they have become ‘unpleasant’ to deal with, and not as a punishment for being outspoken. To the extent that there is any shunning based strictly on opinions held, there is no evidence that any sort of formally organized conspiracy exists; if people aren’t talking to each other, it’s based on personal preference and not because someone told them not to.”

In fact, there are two pages between “disgruntled” and “I found no evidence…”

Redacted from the February 2009 version was: “A frequent theme was the perception that Chief Conroy has people she favors and others she deprecates.”

He does point out that many of these critics do have positive things to say about the department, the union and Chief Conroy.

He writes, “Very few ever used intemperate or vituperative language in describing how they perceived the Chief or the president.”  However, Mr. Aaronson does add, “Being in the dissatisfied minority has taken a toll on a number of the disgruntled employees. Their experience is one of dissonance; some of them betrayed visible signs of cumulative stress and anxiety.”

Mr. Emlen, in his attempt to downplay the problems, never acknowledges this downside.

Mr. Emlen is misleading even in his quote above, after the phrase “shunned or ostracized,” he omits without acknowledgements, “This did not surprise me; in such a small organization, explicit direction wouldn’t be necessary because everyone’s position in the dispute is known. More important, strife in the fire service can only be permitted to go so far; these people’s lives depend on their ability to work well with each other.”

Nor does he note, “On the other hand, there is a shared sense that favoritism plays a role in some assignments and promotions. Virtually all the discontented and some of the more moderate loyalists expressed concerns about the role that being ‘in favor’ has played in certain situations.”

Mr. Emlen downplays the fear of retaliation, arguing that Mr. Aaronson’s usage is not “in the legal sense.”  He adds, “Some employees claim they feel that retaliation is possible, but there is no proof or specific incidents uncovered by the investigation. There are no pending complaints or grievances from the Fire Department lodged with the city of Davis regarding retaliation.”

He adds, “Although the investigation is not conclusive in these areas, and we have no indication there will be any negative ramifications to individual employees in the future, the fact that the investigation has taken place warrants additional precautionary measures for all who participated in the process.”

This is completely at odds with Mr. Aaronson’s own conclusion – covered up and redacted until now: “Based upon the testimonies adduced, I have an abiding concern that some members of the Davis Fire Department may become subjected to workplace harassment/retaliation for their candid cooperation with this investigation, whether at the hands of department managers, union members or their peers.”

In fact, this was a point that Mr. Aaronson drove home repeatedly.

It is important to understand that time and money were an issue for this investigation and every time Mr. Emlen argues that there was no proof or any evidence, all that means is that Mr. Aaronson was not able to fully investigate it.

Mr. Aaronson writes, “Trying to investigatively prove or disprove favoritism in particular instances is a labor intensive exercise.”

What Mr. Aaronson would do, which was never mentioned, is he fully investigated the April 2007 promotional process, which occurred less than two years prior to this report, rather than the five to ten years that Mr. Emlen implies.

He continues, “I have refrained from formally investigating other alleged instances of favoritism because of the additional time that it would require.”

We still do not know the extent to which retaliation and hostile work environment allegations existed because that section remains blacked out.

We know on the bottom of page 9 one sentence is now unredacted, “The disgruntled employees all professed to fear of retaliation for speaking out about organizational issues, particularly the role that favoritism seemed to play in punishing them.”

Pages 10, 11, 12, 13, and part of 14 remain entirely redacted – all of these fall under the hostile work environment/retaliation heading.

It is only on page 14, that we get a bit of a picture.

“There may or may not be provable instances of retaliation by Chief Conroy. I was told many stories, primarily related to promotions, assignment of projects and general treatment,” Mr. Aaronson reported. “As I stated to Chief Conroy, an investigation of a single event, to determine whether or not retaliation played a role, would typically require at least half a dozen interviews, not including subsequent follow up re-interviews and the review of other materials.”

Mr. Aaronson then goes at length into the promotion of Bobby Weist to captaincy over more qualified individuals, something that we never knew about until recently.

Writes Mr. Aaronson, “It is concerning to me that there is a minority of employees, including [name redacted] who fear retaliation from Chief Conroy based on their years of working for her.”  He added, “I absolutely believe they have palpable fears.”

That is a far cry from Mr. Emlen’s statement that there “is no proof or specific incidents [of retaliation or hostile work environment] uncovered by the investigation.”

Mr. Emlen writes, “There are no pending complaints or grievances from the Fire Department lodged with the city of Davis regarding retaliation.”

He quotes a good section from Mr. Aaronson here, “Most recent grievances (“several years ago”) brought to the union for resolution with management weren’t even forwarded to management at all. Apparently, only grievances against chief officers are forwarded to management; grievances against a captain by (a) firefighter would be resolved by the union on its own.”

What Mr. Emlen does not cite undermines his previous assertion about no pending complaints because, as Mr. Aaronson notes, “By circumventing the grievance process, management will never come to learn of instances where captains may have engaged in censorious behavior.  Anyone who wields the baton of leadership/supervision ought to be subject to the workplace (not union) checks and balances that come with it. Anything less gives short shrift to rank and file union members entitled to the union’s undivided attentions and protections.”

The promotional process was the key flashpoint here and Mr. Emlen writes, “The Fire Department currently has a promotional process in place, and the report shows that the department has followed the process.”

Mr. Emlen does quote the following from the Aaronson report, “The single most common starting place where employees become ‘disgruntled’ is in connection with the promotional process. To the extent that certain circles believe that favoritism is a cornerstone in Chief Conroy’s department, their key proof is based upon their perception of how the promotional process has worked.”

Sounds promising but he undermines it, skipping to: “Apparently, Chief Conroy has been aware of this perception for some period of time. This is part of the reason why she is at such pains, during each process, to meet with the candidates and go over, in great detail, how the process works.”

We went into great detail about this in the previous article.

What Mr. Emlen leaves out is the next sentence which was again redacted until now, “Having spent time discussing the details of the last promotional process with Chief Conroy, I do believe that she does not see that her actions have biased the result. But they have, as an examination of the question reveals.”

As we reported, the results, again, wee completely covered up until now that Bobby Weist finished ninth on the written assessment at 75%, just above the lower score of 71% and well below the highest of 90%.

Mr. Emlen summarizes his findings to include:

The reality is that while the chief did follow the protocol, the protocol allowed her to select anyone she wanted.

Mr. Aaronson wrote, “The union vice president, regardless of his position with the union, was everyone’s clear choice throughout the department. Every single person I spoke to, even dyed in the wool discontents, unreservedly endorsed his promotion.

What emerges is: “The discontented employees’ comments varied to the extent that they were prepared to accuse Chief Conroy of favoritism.”

In one of the most deceptive redactions in the documents, originally they unredacted only: “It does bear repeating, however, that no one faulted Rose’s selection” – that implies perhaps Bobby Weist was undisputed, but in reality, they redacted “selection of the union vice president.”

It is one thing to remove material that violates privacy rights of employees, it is another to selectively redact so that the implied meaning of the words is altered, and that is the clear case here.

Mr. Aaronson continued, “One focus of everyone’s attention was whether, in what way and to what extent, Bobby Weist’s long tenure as union president played a role in Conroy’s selection of him.”

Mr. Aaronson argued, “Clearly, regardless of one’s opinion on the foregoing, it would be improper to factor in union work as management’s ‘payback’, positive or negative, for the candidate’s cooperation with or confrontation against management. The former would be favoritism/quid pro quo and the latter retaliation.”

One thing that is very clear is that an objectively far less qualified individual was promoted, likely on the basis of his position as union president along with his relationship with the chief.

Mr. Aaronson went on to argue the need for the rule of three or the rule of five, which would have been able to prevent the misuse of the process.

He wrote, “In essence, after a formal assessment process, a final list of the candidates is compiled by someone other than the final decision-maker/department head, wherein the candidates who meet the minimum qualifications are ranked in the order that they finished.”

He added, “In this instance, Chief Conroy’s final list ranked a candidate as tied for first when that candidate, by any reasonable, objective standard did not finish first, second or third in any step of the process. And she placed him above another candidate who, by every reasonable, objective standard, finished far ahead of her favored one.”

He added, “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.””

Mr. Aaronson therefore concluded the following.  First, “The process was not adequately transparent to the stakeholders.”  Second, “If the purpose of the assessment center was, as Chief Conroy asserted, no more than to determine yes-no qualification, it was a waste of City money, department resources and employee time.”

Third, “The portion of the process, controlled by Chief Conroy that attempted to rate candidates’ education, training, experience and job performance was arbitrary.”  Here he added, “Based upon an objective review of the city’s records, these aspects of the candidates qualifications appear to have been either discounted or erroneously assessed.”

Fourth, “At least one of the candidates was demonstrably and significantly more qualified for and deserving of the promotion than one of the individuals promoted by Chief Conroy.”

Fifth, “Chief Conroy appears to have discriminated against at least one well qualified candidate based substantially on his choices of association.”  He added, “The only reason Chief Conroy could articulate for passing over [redacted] was [redact] ‘naivete’; when asked to explain what this meant, she pointed to his friendships with employees she disparaged.”

Mr. Aaronson added, “While she apparently did not perceive it this way, it confirms the department’s perception that certain employees are disfavored by the Chief and one’s association with them will damage your chances of advancement.”

Finally, Mr. Aaronson wrote: “Chief Conroy’s own prejudices played a role in the ultimate decisions.”

He adds, “As her own comments demonstrate, Chief Conroy brought her own biases to the table when she weighed the ultimate promotional decision. Chief Conroy correctly expressed concern that no individual test, whether written or oral, is without potential implicit biases.”

He concludes, “Yet, Chief Conroy overrode the multi-part determinations, and its protections against evaluator/tester bias, when she ignored the results and simply picked who[m] she wanted.”

In short, Mr. Emlen is not wrong to say, “The Fire Department currently has a promotional process in place, and the report shows that the department has followed the process.”

The problem is that his account omits the severity and lack of judgment of what actually happened, and the fact that the intent of the rules were bent even if the letter of the law was not broken.

We have not focused much on the Union Hours Bank which we thoroughly discussed previously and we largely believe that the issue of off-duty sleeping in the station was one of the least important facets of the report – though the one that drew media attention.

Mr. Emlen writes, “This practice, while understandable from a personal and public safety perspective, is still an unacceptable use of public facilities. It does not appear to have occurred very often, but any occurrence is problematic.”

We largely agree.

The former city manager does quote at length from the report with regard to off-duty firefighters drinking.  He quotes Mr. Aaronson: “This third instance, based on the contemporaneous statements of witnesses, may have encompassed (an) assault committed by an off-duty intoxicated firefighter at the end of a barroom disturbance.”

We highlight this again for the rather absurd omission of the word “felony,” as though that changed something other than downplaying the episode.

Mr. Emlen then highlights the positive in his conclusion writing, “I conclude with a statement made early on in Mr. Aaronson’s report: ‘The GJR, on its face, was never intended to constitute a comprehensive analysis of the Davis Fire Department. Many important areas in which the DFD clearly exceeds professional norms are not addressed at all. Perhaps the single largest unaddressed area is the quality of service DFD provides to the city of Davis and its residents and visitors. The Davis Fire Department receives very, very high customer satisfaction results from community surveys. Our firefighters are skilled, experienced and well-trained. Their equipment and facilities are meticulously maintained. As well, Chief Conroy and the firefighters’ union have been increasingly successful in building a partnership unusual in the fire service, to the extent that the Davis Fire Department has become a model for fire service organizations regionally and nationally.”

We have never disputed the high quality of service provided by the fire department.  We have questioned the amount of their compensation, their abundance of work on medical calls versus actual fire calls, and other points. However, stated again, their high quality of service does not excuse what Aaronson found in his investigation.

Mr. Aaronson’s conclusion, however, is quite different from the former manager’s.

He writes: Based upon the testimonies adduced, I have an abiding concern that some members of the Davis Fire Department may become subjected to workplace harassment/retaliation for their candid cooperation with this investigation, whether at the hands of department managers, union members or their peers. As well, I worry that in the aftermath of this report’s repercussions, the department’s morale and cohesiveness will be damaged. Every employee – every employee deserves a workplace that is not only free of hostility and retaliation but is also a welcoming, participatory environment, where everyone is afforded the opportunity to contribute their best efforts toward the common good. To the extent that I can assist in making this hope more of a reality for all Davis firefighters, please do not hesitate to call upon me.”

—David M. Greenwald reporting

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