Incoming Freight
I picked up a post from The Fullerton Observer on Facebook earlier this week, which announced that the Fullerton City Council would, once again, consider entering into negotiations with Dan Hughes for the position of Chief of Police. This appeared on the agenda earlier this quarter and is among the first actions taken by the incoming council since the election. I had trouble believing this would be on the agenda for Tuesday.
Sure enough, the agenda was released on Friday and there it is. I wonder how the Observer got wind of it . . . something ain’t Kosher there either. See item 15 for Tuesday. This item was not included in the “Agenda Forecast”, meaning we (as a community and us lowly bloggers) get to consider this important item with the shortest possible notification required by law.
After all, aren’t there more pressing things to tackle first?
(That’s a rhetorical question. Of course there are.)
We’ll start with the Gennaco report. The public has been told, repeatedly, of all the positive changes taking place at FPD as a result of the investigation. After implementing change and levying some discipline, including a handful of terminations, supposedly only the “good” officers remain, but what work is left to do?
Of the items not yet implemented, two immediately stand out as what should be the council’s top priorities.
Recommendation 20: FPD and the City should implement the recommendation by the interim Chief of Police
to form a Chief’s Advisory Board.Recommendation 59: The city should consider creating an independent model of oversight to ensure its Police Department objectively and thoroughly investigates critical incidents and allegations of misconduct and renders objective disciplinary decisions.
They’re not done. In fact, they’re not close to being done. This board’s input into what “good” looks like for the FPD, our police model, and for how oversight works going forward is absolutely critical — especially when considering who our next chief of police will be. Railroading the normal hiring process puts not only the successful completion of this recommendation at risk, but also substantially increases the potential for another tragedy to befall Fullerton in the years to come. Out of the 59 recommendations, not one demands that we immediately hire a permanent chief of police. It’s not what we should be working on while other more important items are on the table.
I have no idea why the council thinks railroading the hiring process is a good idea, but it stinks. It’s probably illegal and it’s definitely unethical. Behold, Resolution Reso 8485 (emphasis added by me).
Recruitment. Recruitment involves the attempt to attract suitable candidates for the position with
the goal of selecting those best qualified. When this method of filling vacancies is utilized, it shall be the policy of the City to recruit from within the organization whenever practical, and a sufficient number of applications are received except that all Department Head recruitment shall also be opened to outside candidates. A sufficient number is defined as at least three bona fide, qualified applicants for each vacancy anticipated to occur during the life of the eligible list. If an insufficient number of bona fide applications is received from qualified City employees, recruitment may be opened to outside candidates.
From the Fullerton Police Handbook (emphasis added by me):
1000.1 PURPOSE AND SCOPEThe employment policy of the Fullerton shall provide equal opportunities for applicants and its employees regardless of race, sexual orientation, age, pregnancy, religion, creed, color, national origin, ancestry, physical or mental handicap, marital status, veteran status, or sex, and shall not show partiality or grant any special favors to any applicant, employee or group of employees. The rules governing employment practices for this department are maintained by the Fullerton Department of Human Resources
The council bypassing its rules and laws regarding hiring department heads sure feels like partiality and a huge special favor to me. (Of note, after looking at the HR guidelines and police handbook, I’d be remiss not to point out the last three Chiefs of Police, including Hughes: Bald white guy, bald white guy, bald white guy.)
Going back to the Gennaco report, railroading the hiring process conflicts with at least two recommendations directly:
Recommendation 23: FPD supervisors should be exposed and required to regularly acquaint themselves
with principles of ethics based leadership.
How the hell can we reasonably expect department heads in our city government to hand out employee reviews, promote, hire, and fire when one of the top jobs in the city is doled out according to the council’s whim and not the rule of law? If we go through and offer a department head job without posting the position and accepting external applications, we’re pulling the ethics carpet out from beneath our police force.
Recommendation 27: FPD should continue with its new orientation of recruiting police candidates from a
diverse pool of resources.(FPD Response) In the past, our recruiting officer directed his efforts mainly on recruits from the Fullerton College Police Academy. During the past year he has established a partnership with the Command Staff at Golden West College Police Academy and has begun meeting with them on a regular basis. This will help ensure that the Fullerton Police Department recruits candidates from a diverse pool of resources. The department will also begin assessing current police cadets to determine their suitability as Fullerton Police Officers and the department will begin to sponsor police cadets in the Orange County Sheriff’s Police Academy.
So we’re going to expand the pool from which we hire the grunts while we’re contracting the pool for leadership? What kind of sick double standard is that?
It gets better. The next item on the agenda: Discussing a recruitment process for a representative on the water board.
Say what?
That’s right, we’ve got agenda time for a freakin’ volunteer position, but the council can’t be bothered with discussing a hiring process for the CHIEF OF POLICE.
So what’s going on here? Why the urgency? Is the Acting Chief threatening to leave? I’ve never met the man, but several people I know and trust speak highly of him. Based on my understanding, Mr. Hughes isn’t going to abandon the city just because the council wants to follow the rules around hiring.
What other reasons are left? Oh . . . Right.
Politics. I guess that’s what happens when you remove the hiring authority from the city manager and then you remove discussion from a closed session. You get politics driving the most important hiring decision the city will make in the next decade. Well done, Mr. Chaffee. Really well thought out.
On Tuesday, we’ll probably hear about how great Mr. Hughes is, about all the reforms, community policing . . . blah blah blah. Lots of smoke and mirrors. Let’s assume it’s all true and that Ben Lira is a liar.
OK, great. Those are reasons for hiring Dan Hughes. They’re not reasons to railroad the process, violate the city’s hiring rules, to set a different standard than any other hire in Fullerton (particularly at the PD), or to disregard other items of significantly higher priority– including the remaining items in the Gennaco report, which are supposed to prevent another tragedy from befalling the city.
But wait . . . we followed the rules last time and we got Sellers! That means that the hiring process is wrong!
No, it doesn’t. It means that the people who hired Sellers aren’t that bright. It also means that the hiring process needs to be fixed; not that it needs to be abandoned. Anyone advocating otherwise . . . well, that doesn’t exactly lead me to believe that they’re qualified to select an individual to run a $37, 000, 000 police budget. It probably also means that they have no experience hiring anyone of any magnitude to any position ever. We’re talking about basic hiring tenants of modern HR. To blow them off as a potential “cost savings” measure just screams incompetence.
The most damning item in all of this: Not once did Jan Flory, Jennifer Fitzgerald, or the mighty Doug Chaffee stand at the podium at a council meeting and demand justice for a Fullerton citizen who died after receiving a beating from the Fullerton police. Not once.
These three council-members feel they have the moral authority to stand up for Dan Hughes, a man who is fit for duty, who is wholly capable of defending his own record, and (dare I say it) who is still alive, in order to help him avoid the terrible injustice of having to compete for a job with other qualified candidates.
That’s worth highlighting again: Justice for helpless dead man, ZERO. Justice for a resourceful living man, THREE.
Turns out Gennaco missed one key recommendation: The City of Fullerton must make it absolutely clear in simple terms that no elected official, no employee, and certainly no one charged with protecting the public welfare is above the law. City leaders must lead by example and demand accountability from those they employ.
Without this recommendation, it turns out that all our reform was for naught. We need not demand that our city officials follow the law, we need only demand that they keep a majority of the council happy. Then they can do whatever they want.
Wait . . . isn’t that how we got in this mess in the first place?
Right.
This absolutely reeks, and we ought to be ashamed. This one is on you Fullerton. You did this and no one else. Imagine the circus if and when the council would need to remove the Chief of Police. It won’t be about the merits of performance or the outcome of a key decision, it’ll be about who <3’s whom and the color of your t-shirt. Eww.
Finally, from the Gennaco report (emphasis added by me):
Statements and actions at the highest level of any law enforcement’s command structure molds the esprit de core for the whole organization. If lower level supervisors receive the impression that higher command staff are both not “talking the talk” and “walking the walk,” they too may become less vigilant and committed to ensuring that line officers under their command are performing well and consistent with the values of the organization. In any organization, but particularly law enforcement, subordinates carefully assess their supervisors and often pattern their orientation toward the Department similarly.
We can’t reasonably expect change if we don’t insist that the rules apply to everyone, especially those at the top.
Regardless of how anyone feels about Dan personally, it’s very difficult to find argument with this exceptionally written editorial. This blog has been elevated by the presence of Mr. Cantor. He is amongst the most thoughtful and thought provoking people I know, and for me to say that about any conservative is a little painful. The truth, she can hurt.
A++.
Haven’t linked here in a long time. Will for this.
Please stay on your own blog Tony. You have ruined your own blog and we don’t want you ruining this blog too. Thanks.
Tony is welcome here. We are able to deal with Fiala most of the time, after all.
True. I guess as long as Tony or Travis are running the blog it should be fine. It’s when they have the power to make decisions they ruin things. Carry on.
“Haven’t linked here in a long time”……….. Hmmmmmm
Keep it that way Bushala.
Nice work Ryan. Just put this one up:
http://fullertonrag.com/2012/12/16/commission-before-a-chief/
They want to put the commission on a future agenda for discussion . . . IN MARCH.
That’s the first I’ve heard that there are any agenda plans for it at all.
Commission won’t work in Fullerton. They know that. That’s why it won’t ever happen and that’s why it’s in March. You need money to have a commission that will work and it has to have full time employees with power.
OK, I wanted to let others comment on this before I ruined the consensus. Time to speak up.
I think that Matt Leslie makes a good point in the Rag that we need a Police Commission and that we can’t have a Chief who would block implementation of a Commission. (To describe such a commission, I like to dredge up the phrase that it “should have teeth but not fangs.”) I think that it’s fair to require that Dan Hughes be willing to accept a Police Commission with whatever form the new Council sees fit — even if they go beyond his point of comfort. (And they might.)
But, if he agrees ahead of time to set down whatever veto he might have over such a Commission, then I think that he’s a good appointment — even before a Commission is considered. (I’d take him at his word that he won’t put the kibosh on it.) I don’t think that Fullerton — especially because, given community arousal, it would be a fraught place for someone new to step in — is going to get a better Chief than him.
The list of requirements for such a Chief might reasonably include intimate familiarity with the FPD and its recent problems; a demonstrated ability to withstand extreme controversy and pressure with relative grace (in other words, ex-Chief Sellers need not reapply); an ability to work with Council and community, city staff and police, Police Commissioners and pressure groups; and a commitment to productive initiatives like community policing. That’s a rare combination — and yet he’s demonstrated it in practice for more than a year. Give him the ball and see what he does with it.
Hughes — or whoever is in that position — knows that there will be substantial doubts about him and the FPD even in peaceful times and that they will become loud and ferocious doubts in times of crisis. He pretty much has to be reasonable as a Chief — and he seems capable of it. So I don’t see this as “railroading,” but as making official a change whose time is overdue. If he doesn’t do the job well — well, there are solutions to that. But if you can ever say that someone has “earned his shot,” he has.
Again, as stated in the original post, those are reasons to hire Mr. Hughes.
They are not reasons to bypass the law. What say you to that, Dr. D?
You mention a few things up there — which of them do you mean to invoke when you say “bypass the law”? After you clarify I’ll be happy to answer.
As you’re aware, civil service employment has a long and complex history. There are a myriad of state and federal laws that apply, but to get the ball rolling, I’ll start with this.
How can the city council enter into negotiations with Dan Hughes for the position of Chief of Police, a position that Dan Hughes has not applied for?
Fair question. When you say that he’s not applied for it, do you mean that they don’t know that he desires the position or that they have not formally opened the position to applications (or a national search, or whatever) so he must not have applied for it?
My suspicion is that consideration for a permanent position may have been something raised when he became Interim or Acting Chief — and I don’t know that that sort of arrangement would be illegal and, thus, “bypass[ing] the law.”
By all means, though — ask the City!
The position was never posted; therefore he could not apply. Posting must be public as required by Res 8485.
Follow up question: If you (an experienced employment law attorney) can’t tell me how the city council can hire a department head who hasn’t applied for a job, shouldn’t the city council delay hiring a chief of police until such time that the hiring rules can easily be explained for the sake of transparency and honest government?
I guess it would be easy to figure out. How did all the other outside Chief’s get the jobs? Did they fly the job and they applied? Search firm handled it? I know most cities don’t post the job when they know they are going from within the PD to fill the job. When cities know they have qualified candidates, they dont’ want to waste the money on postings and searches. They know who they want. I didn’t know it was a law they had to fly the job and get people to apply, and then pick from the inside. I guess that’s what is done often in public jobs too these days to meet the race issues requirements. Fly it, take in black and mexican apps, then pick the one they wanted anyways. All about appearance I guess.
I’m not sure that it is a requirement under these circumstances, though that I know that a smart fellow is looking into it.
True Greg. The biggest thing is also the current status of FPD and the future. No outside Chief is going to apply or come to Fullerton without knowing its a solid job for 2-5 years at least. What’s the point? They are currently working and getting well compensated, only to leave and then get fired when FPD goes Sheriffs? Makes no sense. If Fullerton makes the point to stay with their own PD, then I think they would have a good pool of candidates. There are many Captains and Deputy Chiefs throughout the state and out of state that would love the challenge of making reforms and changes within the FPD. Knowing they had 2-5 years to do that is intriguing to many. But leaving to take that job and be canned quickly is not enticing. So do it in the right order. Make the decision on the city’s vision and future, then make the decision on Chief. I think that if they did that and hired an outside Chief, that Danny would easily get a Chief’s job in another City. That would open up that upper management spot for the new Chief to fill also, which he could do from outside as well. I think that’s the vision that Fullerton would like, and be more comfortable with.
Greg Diamond writes in his comment above that “The list of requirements for such a Chief might reasonably include… a demonstrated ability to withstand extreme controversy and pressure with relative grace … an ability to work with Council and community, city staff and police, Police Commissioners and pressure groups; and a commitment to productive initiatives like community policing. That’s a rare combination.”
It shouldn’t be a rare combination Greg. I would hope that any candidate for the job of police chief would be able to demonstrate those qualities and more.
I’d hope so too, Matt, but surely in vain.
Quick update, council passed a motion 3-2 to enter into negotiations with Dan Hughes. An alternative motion to include a civilian oversight with the negotiations failed 3-2. Mr. Chaffee stated that hiring a police chief was better than an oversight committee.
Also of note, the city attorney, after a two minute analysis during a break, stated Res 8485 did not apply.
No discussion of the state civil service laws occurred. I’ve submitted some additional follow up regarding CA’s Local Agency Personnel Standards (LAPS) and will report back anything of note.
Hurry up with your story! If you’re right about LAPS, people need to know.
When you say “alternative motion,” do you mean it was a substitute? I don’t see the two ends as being at odds.
Original motion from Mr. Chaffee: Enter into negotiations, blah blah blah
Alternative motion from Mr. Sebourn: Enter into negotiations . . . contingent upon creation of a Civilian Oversight Committee, blah blah blah (failed, 3-2)
Original motion then passed 3-2. Had Flory, Fitzgerald, and Chaffee voted for the alternative motion, we’d be negotiating with Dan Hughes on a 5-0 vote.
Anyway, round two available here: http://www.orangejuiceblog.com/2012/12/lap-dancing-around-fullerton/
Congrats to Hughes and all of the FPD on moving forward into the future. The minority whiners at FFFF lose again. The future is bright.
This is all being fed to the appropriate agencies. I see our city council members, city attorney and manager having to lawyer up in 2013. Not going to be pretty.
Whaaa? Why?