Abuse of Process?
As Jim Nabors would often say "Surprise, Surprise", the City Council made the questionable "provisional appointee" the permanent Director of Economic Development on April 29, essentially saying that some violations of the Charter and Civil Service Rules are allowable no matter what the evidence proves! Particularly when they are "wrapped in the patriotic flag" that is so popular with our recent success in Iraq. That statement is in no way intended to be derogartory, just a matter of fact in my view given all the back slapping and applause present during and after the 7 to 1 vote in favor of the questionable "provisional appointee"! This issue to be addressed in more detail later in this article. It is noted at this point that all information on these matters subsequently published are mandatory reading in their entirety to understand this article!
While I am disappointed that the vote was not tabled, this was no "surprise" to me as I have seen the "rules" ignored with more audacity than occurred here repeatedly in the Smoot Court Decisions. As in that case, the decisions were politically motivated, with entities of governmental agencies specifically ignoring their own rules because there is little, if any, accountability to a higher authority who is not already on their side should they need to "validate" their specious actions. In the instant case, the specious determinations of the Human Resources Department could ultimately be "validated" by a lack of specific rule in the CSC, a political majority on the CSC itself, the City's legal department, the Mayor, and finally City Council (as was done with this appointment). In essence, no matter how specious was the decision(s) and/or violation(s) of precedent, City Charter, and/or CSC Rules, Human Resources had numerous "buffers" to protect it's specious decisions, making it virtually impossible to correct the situation (despite a completely unexpected attack which they apparenly did not anticipate) in the instant case and possibly well into the future depending upon who becomes the next Mayor and Council!
Let us clear up one matter immediately, I call the provisional appointment "questionable" as opposed to the determinations of the Human Resources Department which are labeled "specious"; there is a specific reason for that based upon past precendent and the history of how this case came about. Initially, the provisional appointee's counsel considered the Subcommittee's use of the word "questionable" to represent bias on the part of the Advisory Committee ( now I have to place the March 7 - click on it when it turns green - letter at the end of the current CSC article so those who actually read "everything" will be able to understand this comment)? However, the actual term eminated from the January 23 CSC meeting in which a majority of Commissioners determined, after finally seeing his qualifications for the first time, that if Human Resources had determined he was unqualified and he appealed, we could not have sustained his case given the documents and past precendence going back years!
While this began the terse debate on the issue, the immediate removal next day of Mr. Corona, and the "disputed" subcommittee authority, it was the determinations and records which ultimately branded the Human Resources qualification "specious" given the probative record of documents, the historical past precedence of the Commission, and the total misrepresentations of the Human Resources Director to Commissioner's questions on January 23, 2003, a matter of public record (recorded - it is noted we don't have these minutes yet and I will be "surprised" if we get them this year!). I don't know about you "readers", but once I receive documents from a department under the Open Records Act that directly conflict with the statements of the director of that department, I don't give him/her credibility in the future until the previous "misrepresentations" are cleared up. That has not yet happened as I write this article!
This is going to be a long article and one that could be considered "political" by my own admission. It may be too technical for many layman to even understand? However, I would rather learn from the writings of my opposition than accept the platitudes of my supporters, ah . . ., if I have any left? As a practical matter, I am writing this for the good it will do me, not any of you who may be reading this. I could easily view this as a failure, much like the Smoot Debacle, rather than as a victory because I stood my ground, I attempted to do the right thing in my own mind, I gave it every reasonable effort including this article, and ultimately I can walk away without any bitterness for the final result because I am proud of what I did and I believe my family is proud of my efforts also!
Perhaps naively, I thought I may have some chance of tableing the appointment until Sarinano departed from the matter under discussion to suggest he supports the provisional candidate and he needs to be apporved and move on (he actually attended the public hearing of the Subcommittee, heard the majority of testimony, and took that position then because the "provisional appointee" was doing a "good job" after only approximately 7 weeks in office?). When Sumrall immediately chimed in with the "I may be out of line here also" and supported him, I knew I was dead in the water and no argument or facts would sway this group! Question? When do you know you are "out of line" in talking about something not under consideration? Answer: When the Mayor won't allow you to do it! He certainly didn't object here; could it have been choreographed?
Thanks to Councilperson Cobos who stood up for my right to have rebuttal after the Mayor "denigrated" me (for the second time) and then attempted to deny my right to free speech to respond. Seems it was only about a year or so ago that the Mayor regularly did that to young newly elected councilperson Cobos; he learned quick to appeal the decision of the Mayor and I give credit to the Council in that they have also learned, no matter what their political leanings, never deny a person rebuttal when they have been attacked or because the Mayor simply doesn't want to hear a response!
Of course, when Cobos announced he would support the permanent appointment, I had two choices, continue to speak out against the process or withdraw? The decision was never in doubt, albeit I had time to not give my "written statement" and adopt a "wing it strategy" of concession. I guess that's the benefit of being a veteran of all out war (Lam Son 719) and 25 years of adversarial relationships as a union steward against a multi-billion dollar railroad robber barron - you assess the situation and you make a quick decisions. I wouldn't back down, I would improvise before my statement and play the "patriotic card" also - why not, I had never gotten satisfaction from the Mayor for his "unilateral" criticism of me in the April 10 styled "press release" which attempted to demean me in the eyes of the Military Community in El Paso! Hmm . . ., perhaps "attempted" is not the proper word since he never responded nor printed my response on the City's web page as I requested and my placement of my response on this homepage probably hasn't been viewed by more than 20 or 30 members of the El Paso Public (the majority of my readers come here for railroad articles)! In any event, no military person has ever called me to back the Mayor's allegations and I can deal with that if it ever occurs as an "effective communicator" with the lowest E-1 to any 3 Star General!
So I did "wing" an extra introduction as my statements were passed to Council, basically stating that (as best I can remember it?) 3 of you will not be back, four of you may not be back, and the Mayor may not be back, so I request you table this item. Then it was the "provisional appointee" and I have at least two things in common; military background and veterans, he in Kosovo and I in Vietnam. Then the bottom line which he can agree with if he wishes; our military service taught us to fight when we believed we were right! So I'm here under my oath of office to CSC to support the Charter and CSC Rules. I will omit that portion of the statement that has already been covered. My written statement appears below in it's entirety:
"Statement of Lance E. Ruck before City Council on April 29, 2003
Mr. Mayor, City Council Members, members of the press, and most importantly, Citizens of El Paso.
My name is Lance E. Ruck, and I am a current member of the Civil Service Commission. I am here today to request that you table this item as I have considerable knowledge on the issue. Indeed, I was the Subcommittee Chairperson who issued the report on the Ethics Ordinance concerning the "provisional appointment" of the Director of Economic Development. That report is a matter of "Public Record" with exhibits and I stand behind the accuracy of the report. It should be noted that the Mayor and the "provisional appointee’s" counsel alleged there were "inaccuracies" in the original report. However, since the final report with exhibits was released after a public hearing, few, other than the "provisional appointee’s" counsel have come forward to dispute the evidence provided. Her objections are also a matter of "Public Record"!
Unfortunately, this is the epitome of bad government and "abuse of process"; this is not an appointment of merit but rather an appointment of cronyism. The steps that have been taken to cover up this matter are equally heinous, including personal attacks by the Mayor through a styled "press release" on the City Web Page and Ex Parte interference in the operation of the Civil Service Commission.
Setting that aside, why is this an "abuse of process"? Bluntly stated, the Human Resources Department has had full control of the process, from initial qualification to recent "attestment panel determination", without any oversight whatsoever. The CSC, pursuant to the advice of it’s "counsel", has no right to decide if those determined to be "qualified" can be challenged (the CSC can only address those determined to be unqualified)! An obvious flaw in the system occurs when Human Resources determines someone to be qualified when in fact all pertinent data indicates they are not!
This unilateral process without oversite is then compounded when the panel brought in to "rate" those determined to be "qualified", are not allowed to view the educational qualifications, experience, and job requirements of the advertisement. Indeed, the panel is provided "questions" by the Human Resources Department which are to be asked to those "candidates" that Human Resources has already determined to be "qualified", i.e., there is no review nor weighting in the process of education or experience - determination is based solely upon "oral interviews" from the provided questions! This could considerably favor a candidate that had previously been given "preferential treatment" and may have the questions and answers before they are even asked by the panel.
Pursuant to personal phone conversation yesterday with Mr. Robert Patenoster, Director of Community Development, City of Sunnyvale, 456 West Olive Ave., P.O. Box 3707, Sunnyvale, CA 94088-3707, phone 408-730-7450, I believe the "attestment panel" was as fatally flawed as the original determination of "qualification" of the "provisional appointee" now seeking "permanent" status at the request of Mr. McNabb, or the Mayor as the case may be.
It is my belief that the only "backup" for this "consent agenda item" is the two page document alleging the final rank of the candidates considered for the position of Economic Development Director. Now that said document has been questioned with sufficient information to require further research by Council Members, I personally believe it would be a gross dereliction of duty for Council to vote on this issue today. Thank you for your patience and time, I am available for any questions any of you may wish to ask? Lance E. Ruck, Commissioner, CSC - District # 8"
Now, of course, Sumrall's previous "he's NO. 1 chime" has been questioned, so I believe (?) she's the first one who "attacked" with that beautiful smile and that "I'm so excited attitude/platitude on whatever it is being discussed" except in this case she ain't that happy? She wants to know what right I had to call any member of this panel, how I got the information, and why should anyone participate in any future panel if this could happen; I think she said this needed to be investigated? Could she be the first City Council person to charge two Board members with a alleged violation of the Ethics Ordinance? Then comes the kicker: "I don't know why you're out to get, Mr. Landy" . . .?
While I was formulating my answer to her first statements, I had to laugh (I hope the camera wasn't on me?) when that bit of drivel came out - she either hadn't read the report with exhibits or choose to ignore it. I was lucky to explain to her it wasn't about Mr. Landry, but rather the "process" before I was quickly cut off. I think that may have been Powers (recognized by the Mayor) who wanted "information from Ms. Human Resources Director" concerning the "veiled" accusation that the panel may not have been fair? She responded as best she could before Mr. McNabb had to interject some "expertise" into the area of discussion?
After that I think it was Cook who gave his "I interviewed them all" speech and then Cobos to thank me for my efforts and he had decided to vote for Landy (I don't remember any other Representative speaking but I could be wrong). Once Cobos stated he would vote for the Candidate, I asked, as a continuing member of CSC with a responsibility to enforce the CSC Rules if Council would again violate the 1992 Executive Compensation Policy of CSC with regard to his salary above the midpoint range, specifically at the third quartile?
McNabb jumps right in to give the definitive answer; our legal department determined it was appropriate! Yea . . . Charlie . . . like Human Resources determined he was qualified and immediately backed by the legal department! See my response to the legal departments styled advice and their actual specious letter (now placed at the risk of violating the attorney-client priviledge - How say you Ms. R - going to sue or have to find another way to intimidate these Commissions? -Click when it turns green!)! Inquiring Minds Want To Know?
Then it was the Mayor's turn for another smiling, fireside chat-styled "input" to make everyone know who the villan was and put everybody into euphoria about the prospect of getting the "guy" he wanted all along and the bright future for his "visions"! I guess there really aren't a lot of people in this town familar with Robert's Rules of Order or the actual way a deliberative body is suppose to theoretcially work? The Chairman simply runs the meeting and facilitates order, voting only when there is a tie or to bring a tie, thus making the matter die. In most dileberative bodies, the chair can't speak upon an item unless he steps down from the clair? But good ole Ray, the "people's lawyer", can just throw out any comments he wants any time to favor his view and/or attempt to stifle any comments he doesn't like! Anybody ever seen any council member demand "call for the orders of the day" or any similar request that basically says shut up cause you're not talking about anything that has to do with the current agenda item?
So what was it in my statement that was so offensive? Well, in fact, it was that Lawyerish type statement (mine would be "pro se" since I'm not a lawyer) that no one could actually refute that seemed to set off Powers, McNabb, and finally the Mayor, to wit:
"This could considerably favor a candidate that had previously been given "preferential treatment" and may have the questions and answers before they are even asked by the panel."
Is there anyone who can dispute the "theory" of this statement, i.e., If no education or experience is considered, would a candidate, previously already given "preferencial treatment", have an advantage over other applicants IF he/she was the only person that had the panel questions in advance of them being asked? Don't relate it to any particular situation, just answer "yes" or "no"?
Let's examine a "few" similar such "real lawyer" type statements, to wit:
"5. On the issue of Compensation and Fringe Benefits, those amounts are set by City Council in accordance with the applicable provisions of the Executive Compensation Plan of the City." (Monica Cunningham- lawyer - March 13, 2003 letter to the Civil Service Commission.)
also;
"It is an insult to denigrate the experience of Col. (Ret.) Landry and the many women and men who have honorably worn the uniform in peace and war in the military to suggest that military experience is not the equilivalent of civilian experience." (Raymond Cabalerro - lawyer/mayor - April 10, 2003 press release - Statement from the Mayor.)
So . . ., what is the difference in these three apparent "truths" if one takes the time to consider information preceeding the statement, the context in which made, and most importantly, the inference intended in the "eye of the beholder"?
Let's take them from bottom to top. Once Landry is "generalized" with Haig, Costello, Franklin, et al. and generalized with Ft. Bliss, Strategic Planning, "two Masters Degrees . . . .", etc. , one just "automatically" assumes his military experinece is the equivalent expenrience. The problem is that 20 years in the Motor Pool driving evrey vehicle the army has should qualify you to drive a garbage truck but it doesn't qualify you to be a computer analyst! Ah . . ., and they turned down the guy who wanted to drive the garbage truck (CSC overturned) and they turned down the guy who had 20 years of computer training to test for a similar position because his training was "technical, not professional" (CSC overturned that one too)!
Sure, compensation and fringe benefits are set by the City Counsel pursuant to the Executive Compensation Plan of the City! Were they? The items previous to statement 5 simply require one to except the counselor's version of everything the "provisional appointee" allegedly did even if refuted by the record.
And my statement? Does it require you "infer" that the panel was less than honest? No, it suggests the method the panel used pursuant to a conversation with one of the panel members. He unabashedly answered questions and gave me the absolute feeling that he was honest in his determination "given the parameters" supplied by Human Resources. The panel did an honest job with what they were given, albeit this might be the classic example of "garbage in; garbage out"?
As stated earlier, I have no "trust" for the Human Resources Department based upon very specific reasons. So why would the innocuous statement I made, lead Powers, McNabb, and the Mayor either "question/or defend" that no impropriety took place? Powers with the "veiled threat" question, McNabb with his "we wouldn't do that" explanation, and last but not least, the Mayor with his suggestion to "allege that" is just "SILLY"?
However, I have 7 months of experience, and Commissioner's with up to 7 years of experience found the human resources department's "qualification" in the face of the documents so far departed from past precedence that it was considered "incredulous"! This for the education, experience, and compensation. City Hall promptly responded, with a press release, deceipt, and specious legal opinions that backed the Human Resources determinations.
What better way to finally try to offset those blatant departures from past precedence than have a panel "validate" Landry as the Number One contender? And maybe it could have worked if I hadn't found out education and experience played no part in the "ranking"?
But here is what I consider truly "silly": That a candidate who openly admitted on January 21, 2003 on TV that he had no training in this discipline, could gain so much knowledge in 3 months of "on job training" that he "far exceeded" the other candidates in the oral exmination, particularly candidates that had real Masters Degree's in Economic/Business/Finance and many real years of "professional economic development experience"? I ask my self, and the reader, under what conditions could this happen? Personally, I can only think of one scenario under which this could have happened!
The compensation, like the qualifications is so specious it's . . ., hell, unbeliveable is the only word I can think of?
These three qualification SHALL be met to get over the midpoint:
"1. The position to be filled requires a person with specialized training or experience
and
2. The cadidate selected has education or experience directly related to the position
which exceeds the qualifications of the other applicants and
3. The position is difficut to fill, as indicated by repeated unsuccessfull recruiting
efforts."
The FACTS are:
1. The Candidate selected didn't have a BS in the required fields or a related field nor any "professional experience! HS and legal allowed he did with alleged "equivalents"?
2. His "equivalents" were not education or experience directly related to the position and many other candidates did have directly related Master's Degress and more than 5 years of "professional economic development experience, etc."? Legal somehow determined that he exceeded the qualifications of the other candidates?
3. Every Advertisement yielded qualified candidates that were never allegedly "evaluated" (pursuant to the statement of the HS Director on January 23, 2003) nor promptly "qualified" according to the 45 applications on file. At least 10 candidates, if qualified within 2 weeks of their application (Landy's took 6 days to approve), would have been available for an eligible list prior to July 1, 2002. Ah . . ., I thought the Mayor determined there was unsuccessful recruiting efforts until he laid it on HS at the April 29 Council Meeting, i.e., HS never provided me with an "eligible list"! (hahaha)
So, I guess the real question is how did City Council vote this guy into the permanent position, again at a rate of pay that violated the CSC Rules, if they knew all this information? Well . . ., City Counsel didn't have access to the Report, they have no reason to ask for backup once the "professionals" in either HS or Legal advise them that everything is OK, and we have to move on despite the facts!
Yo . . . City Council, I got no problem but help us "stupid CSC commissioners" out - just a little "ordinance' that states when we can ignore the rules? You know, something simple like the City Charter and CSC Rules shall not apply to provisional appointments or department heads if any of the following apply: 1. The Three Chambers of Commerce agree with the appointment; 2. The Mayor agrees with the appointment; or 3. Legal says it is OK to violate the City Charter and/or CSC Rules!
In closing, I left before Ms. Turner spoke and the vote was taken. I went directly to Col. (Ret.) Landry, shook his hand, and told him congratulations on your appointment. I hope he fulfills all the expectations as becomes the best Economic Development Director in the history of this City! After all, in my mind, it was never about the individual, it was always about the process!
This is still "under construction" until I get the March 7 Letter, the Legal Opinion, and hyperlinks to this article completed!