Thursday, May 21, 2009

Mayor Valley Vetos Civil Service Commission Ordinance 16-2009 for Several Reasons

Link to Veto: http://tinyurl.com/civilserviceveto2009



May 21, 2009



Ms. Sandi Ramsey, City Clerk

City of Helena-West Helena, Arkansas

P.O. Box 248

Helena-West Helena, AR 72390


RE: Veto of Ordinance Number 16-2009 (Civil Service Commission)


Dear Madam Clerk:


I write to give notice and state my reasons for the veto of the above-referenced ordinance. I hereby inform you that I am vetoing the Civil Service Commission Ordinance because it does not serve the best interest of the Helena-West Helena Community.


The consolidation transition team along with the Arkansas Municipal League gave our new city advice on how to proceed when we merged and consolidated our town in late December of 2005.


The transition team recommended two distinctive approaches to the management of commissions. The first approach would have been to maintain all commissions and their membership through something like April of 2006 and then decide which course of action to take. The other option was to adopt the ordinance which became Ordinance Number 1 of 2006, which adopted the Helena-West Helena Municipal Code as put together by the Arkansas Municipal League after consulting with the transition team and the staff provided to the transition team by the University of Arkansas System's President, and Helena's own, Dr. Alan B. Sugg. When we adopted Ordinance Number 1, we were fully cognizant of the fact that we were dissolving and getting rid of all non-required boards and commissions within city government.


That was the right road to take.


We were getting rid of all extra layers of bureaucracy that placed insulated individuals in positions of power over which the voters had no control. To say it differently, we wanted all of the major decision-makers in city government to be subject to the voters except and unless State law required that we have a board that was appointed and not elected. The Planning Commission, for example, is a required board which is appointed and not elected. The Historic District Commission is required and is an appointed board and not elected. No other board or commission is required under Arkansas law. All other boards or commissions are permissive.


We, based on negotiations, added a non-required, non-elected commission to our list of boards. That commission is the Landfill Commission. It has been a colossal failure. The Landfill Commission was borne out of the same kinds of desires that have been expressed by the same people who are pushing for this Civil Service Commission. The Landfill Commission was staffed with good people who had wonderful intentions but because the Commission was ill-conceived and could not affect day-to-day operations, its membership became disillusioned and eventually stopped meeting altogether. The Landfill Commission, although it still exists, has not met one time since Mr. Kyle Miller was appointed to replace Mr. Joseph Dean in the middle of the year 2007 following the death of Mr. Bobby Martin.


The Civil Service Commission has been sought by a small group of our citizens. They are concerned about our crime rate or so I am told. They are concerned about our morale in our departments, our hiring practices and our promotion practices. I will address each of those things separately as I think each are critically important in the discussion of where we are trying to go. 


Crime


Our crime problem is not unique and not unlike so many areas in our state, our region and this country. We have had spates of seemingly uncontrolled burglaries and now a rash of robberies. Many of the people accused of committing these crimes have been arrested time and time again. They are then released lawfully on a bail or a bond which assures that they appear in court at their appointed time. During the time that they are out on this bail or bond they are required to act in good faith. That is they are required to exhibit good behavior. This has not happened with so many of them. As the facts bear out, they have been arrested time and time again. These bad acts are a violation of their bond. 


There is nothing that our city or our police department can do about bail bond issue. This is true because bond is set by, managed by and controlled by a circuit judge. Let me be clear, I am not blaming circuit judges for the crime problem. I am, however, explaining that our crime problem is larger than a police department and 38 or so officers. Because when they do their job, make the arrest, file the case, it is then handed off, like a baton, to the next runner in the criminal justice race for completion of the criminal justice process. This process starts with arrest and could end in a number of different places including conviction and jail time or acquittal and freedom. There are many variations between the arrest and  the end of the matter including probation.


In summary, while nobody wants to be victimized and no public official wants to see its citizens victimized, we are doing as best we can with these options that are placed before us. We are arresting the criminal violators over and over. They are set free pending trial and commit more crimes while waiting on their court date and eventual punishment, if any.


Morale


In addressing our department morale, I am quite mindful that I have been given amorphous definitions of morale. This is to say that few people are truly qualified and competent in measuring the morale of a staff of employees. People tend to say if employees are happy about everything then morale is high and if they are unhappy about everything then morale is low and look at it in a democratic sense. That would mean where more are happy than unhappy morale was good or high. However to measure morale one must look at the overall performance of the employees of the department and whether they are actually carrying forward the mission of the department. This is true because employees may be unhappy with a number of things that have nothing to do with work and while unhappy perform well. Happy employees may be doing nothing at all; merely riding the clock and thereby having dismal performance.


The police department has a duty to protect our citizens and to serve them in every lawful way that law enforcement officers can. Our officers are doing that on a regular routine basis. They show up for work regularly on time and perform throughout their entire shift. Our arrests are increasing week-over-week, month-over-month and year-over-year. Because of our police department's aggression we have been able to minimize some of the flare-ups in some of our most troubled spots in our community. That is to say that we have been able to disrupt and bring to a halt many of the systemic problems of crime that some of our neighborhoods are facing. We have been dispersing loiterers, enforcing the curfews and doing various forms of drug interdiction activities.


We have room for improvement in the morale area. However, our data shows that our department is motivated and doing a good overall job. Our public perception needs work. The general public does not necessarily know or understand the amount of work done by our police department because much of it is not seen or reported to the general public. The number of calls taken and cases solved is high. The workload on our department has been ever increasing and our staff has stepped up to the challenge. 


Hiring and Promotion Practices


Lest we forget, we are required by law to follow certain steps in our hiring process. We do background checks and for police officers, mental/psychological evaluations. All employees must take and pass a pre-employment drug screen to assure that the employee is not addicted to illegal drugs. We have refused to hire a number of persons who did not clear these hurdles. Additionally, we have not been successfully sued one time during my tenure as mayor for any improper hiring or promotion practice within our Police or Fire departments.    


Lest we forget, when we consolidated we had a number of promotional concerns within the departments. One city's employees felt that the other city's employees had not paid their "dues" and had been promoted too quickly. Employees feared that the new chief would retaliate against them for a variety of reasons. Employees threatened massive walkouts if their choice person was not the chief.


This administration worked within the framework of Arkansas law and established a rank structure that was diverse, inclusive and effective. We made it over those tough times without the public necessarily knowing about the internal difficulties we faced.


We established the finance committee. It had the responsibility for screening those chosen to be hired or promoted and giving the administration the thumbs up or thumbs down. The city council had the power to review the decisions made by the finance committee.


Most notably, the finance committee met and approved the last major batch of promotions during Chief Bell's tenure. That batch included moving Mr. T. L. Green to Code Enforcement, Mr. Ronald Scott to Assistant Chief of Police, Mr. Carl Vann to Captain and a list of other officers to corporal and sergeant. 


We have some people in our department that have not been promoted. Performance is a premium and is rated higher than time in grade. That means that you can be in a position for a long time and not progress and therefore do not deserve to be promoted.


I have found that some of our leadership within the ranks were subject to the "Peter Principle." That occurs where a person is promoted beyond his/her competency level. For example, a person who is a great sergeant may never be able to be a lieutenant for various reasons. If he is promoted anyway, then he will have duties, responsibilities and expectations that he cannot possibly fulfill. He will be in over his head. Therefore, promotions are never to be considered automatic or based upon the amount of time a person has worked in a particular area. No one would argue that the custodial staff that cleans the office of the President, after being there 10 years and having more experience in the office than any living President, should be seriously considered as a potential President. On a smaller scale, the same principle applies here. We must hire, promote and demote as best serves the needs of the department, the city and our citizens.


Arkansas Municipal League


Mr. Mark Hayes, General Counsel with the Arkansas Municipal League, spoke at our city council meeting  on Tuesday, May 19, 2009 and explained all of the pros and cons of this pending legislation. He basically gave one good reason for adopting this ordinance. It was something like "you can do this if you want to." 


On the other hand, reasoned and studied judgment would lead reasonable people to believe that Civil Service Commissions, like Model T Fords, are creatures of a storied past. Civil Service Commissions were born out of Act 28 of 1933. "Act 28 of 1933 required the city council or other governing body of all cities having an organized fire department and all cities of the first class having a police department to establish a civil service commission for the police and fire departments. 1933 Ark. Acts 28. Civil service commissions were to "prescribe, amend and enforce rules and regulations governing the fire and police departments of their respective cities[.]" 1933 Ark. Acts 28"  City of Pine Bluff vs. Southern States Police Benevolent Association, Inc.


About 38 years later, Act 166 of 1971 removed the requirement of the establishment of a civil service commission, stating instead that cities of the first class "may establish a Board of Civil Service Commissioners for the Police and Fire Departments of such cities." 1971 Ark. Acts 166 (City of Pine Bluff vs. Southern States Police Benevolent Association, Inc.).

We are no longer required to have Civil Service Commission because other laws are in place to protect our employees. To name a few we have FLSA (Fair Labor Standards Act -- dealing with wage/hour/overtime) Civil Rights Acts (dealing with discrimination for a variety of reasons); ADEA (Age Discrimination in Employment); ADA (Americans with Disabilities Act); and FMLA (Family Medical Leave Act). Each of those acts, and many others, were passed after 1933.


The State of Arkansas has five hundred (500) cities and incorporated towns. Of all of the cities and towns in this state, we have only 20 with Civil Service Commissions and two are dissolving theirs now. Therefore, soon, only there will be only 18 Civil Service Commissions in the entire State of Arkansas. One of those 18, Jonesboro, has Civil Service Commission for the fire department only and not the police department. For us to now be adopting a Civil Service Commission is not moving forward and not in the best interest of our citizens.  Our citizens need to be able to at the least, hold its representatives accountable. The citizens cannot hold the  Civil Service Commissioners accountable. 


Terms


The Civil Service Commissioners will be appointed for terms under the current law, if this ordinance stands. One of the commissioners will be appointed to a ten (10) year term. That is longer than either Ronald Reagan, Bill Clinton, or George W. Bush was President of the United States of America.


The City Council


When questioned as to their reasons for wanting to adopt this ordinance, even over the advice of the City Attorney and the General Counsel to the 500 Cities in the State of Arkansas, the city council gave very  flocculent answers. The answers had little substantive value.


Mr. Bruce Hudson says he wants to limit the "mayor's" powers. While he openly admits that, his ordinance gives me new powers including hiring someone to assist the civil service commission and hiring a lawyer on an annual basis to represent the city and the departments in civil service matters. Mr. St. Columbia gave "I think, I feel, I believe" type answers but provided nothing empirical. He finally concluded, "I want it because I think its a good idea." Mr. Grubbs was one of those who echoed that "citizens in my ward want it." Jay Hollowell spoke of hiring, firing, promotions and like while also mentioning crime. Mr. Washington and Mr. Hunt were mum on the issue except to vote along with Mr. Hollowell. Mr. Clark and Mr. Jarrett merely expressed opposition. Mr. Etherly made a thoroughly and seemly well prepared and well thought out set of remarks on the issue. He then asked the council to explain what is wrong with the current system that will be made right by the Civil Service Commission.  No one could answer that question.


I have heard from scores of citizens on this issue. Most of them want us to move on to something substantive like paving more streets and stricter curfew and violation enforcement. While the big public meeting the council called and gathered 30 attendees may not be an indication of their level of support. It is clearly to be contrasted with the meeting at New Haven Church where between 300 and 400 people were attendance. The citizens want meaningful things to happen in our city.


At best, the civil service commission is a lateral move. It only shifts responsibility from one group to another. It does not, of itself, improve anything. At worst, the civil service commission is another level of bureaucracy  that is not directly accountable to our citizens. 


Costs

This legislation will cost the citizens more money by having to fund at least two positions and possibly three or four positions. We must hire a person to manage the files of the commission on regular basis such that we do not lose a lawsuit based upon missing or poorly kept paperwork. We must hire a lawyer for the city and the department to represent those interests before the Civil Service Commission. We must also hire a stenographer to keep the records of any hearing held by the commission. These positions are mandated by state law. The city attorney will represent the Civil Service Commission, unless the commission chooses another attorney. The additional lawyers are per Arkansas Code Annotated Section 14-51-206 which states in relevant portion: "The city shall hire, on an annual basis, independent legal counsel to represent the city and the department head when the city's managerial employment decisions are brought for review before the commission and in all trials, proceedings, or other legal transactions before the commission."


Veto


For these and other reasons, I veto the action of our city council in passage of Ordinance Number Sixteen of 2009. That ordinance is the Civil Service Commission Ordinance and is not in the best interest of the citizens of the community because it reverts us back to the times of the Model T. Ford.


Sincerely yours,




James F. Valley

Mayor, City of Helena-West Helena


c: City Council Members via email


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Stay informed: http://mayorjfvalley.googlepages.com (Mayor Valley's Homepage) http://tinyurl.com/4tlb44 (Mayor's Journal)


Honorable James F. Valley
MAYOR - Helena West Helena
P O Box 248
Helena-West Helena, 72342
870-572-3421 Phone
870-572-5034 Fax
870-817-4035 Cell

http://tinyurl.com/councilagenda (City Council Agenda)

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