Former Mayor Pina frequently compared our city to a corporation. Not being nearly as cranky as people say, I never had the heart to mention that one legal title for our city is the Municipal Corporation Of Des Moines, Washington.
There’s a point to this (very) gentle dig. It isn’t a metaphor, it’s a fact. We have a Chief Executive (the City Manager, a Board Of Directors (the City Council) and voters (the shareholders).
Information is power
In a corporation each group has access to a different set of information: Shareholders (voters) can see any document not excluded by law. These include all emails and phone calls and faxes generated by any employee or contractor. You get can them via public records request here.
Board members obviously will have access to other information that must be kept private in order for the organisation to function. Some of these are negotiations and matters of oversight. But a councilmember’s access to information differs from that of a public corporation board member in one key way:
Right of Inspection Defined
In a public corporation there is always a right of inspection, a set of rules giving each board member independent access to the corporation for the purposes of research and oversight.
Among these are the ability to:
- Interview employees up to the CEO periodically, solely for the purpose of research.
- Visit offices, walk the factory floor on request.
- Review all internal documents both past and present.
- A guarantee that all reasonable requests for research will be faithfully honoured in a timely manner, or if the request is onerous, sent to committee or the full board with a cost estimate as to the requirements.
All that seems like common sense to most people. After all, how can one perform ‘oversight’ without unfettered access to everything and everyone? If the CEO or fellow board members had the ability to obstruct any board member from obtaining information or talking to employees, they would. If it is allowed? It happens.
We’re special…
Many of you know that there is a strong mayor type of city government (like Federal Way), where an elected mayor acts as CEO apart from the city council, and council-manager government (which we have), where the CEO is the City Manager, an employee hired by the city council and where the mayor is a member of that council.
In the elected mayor system, the city council always has a right of inspection. He’s a politician, right! 😀 (No, seriously, that’s the reason. Electeds in different branches of government have that in-built skepticism.)
What almost none of the public understands is that Council-Manager Government (CMG) provides no legal right of inspection.
However, most city councils have some form of rules that allow CMs some version of that. But there’s nothing in the RCW requiring it. Now, what the RCW does say is that all access to information or staff must go through the City Manager. For example, to try to communicate with staff without the permission of the City Manager is referred to as ‘councilmember interference’, and it is illegal. The City Manager is the Gate Keeper: to information and employees and any of the premises.
To be fair, almost all city managers understand the ramifications of this if taken literally and go out of their way to accommodate reasonable requests from councilmembers. But that is only a matter of courtesy, precedent and custom. State law protects the City Manager from pesky CMs. It says nothing about the reverse possibility.
Currently the City of Des Moines currently has no right of inspection of any kind. We are different from all our sister cities in that way.
One seat?
Shifting gears for a sec. If you listen to any of those business news channels you’ll occasionally hear an analyst scoff when some interest group obtains one seat on an important corporate board. For example, environmentalists worked for years to obtain a single Directorship on the Board of Exxon.
But that view is myopic. Those groups don’t work so hard for a single seat expecting to change policy. They want the seat so they can obtain that right of inspection. They want access.
It’s a hit with the public…
The right of inspection ensures that a board member who disagrees with the CEO or the board majority can’t be boxed out. Even if the CEO and every member of the board hates yer rotten guts, you still get the same access they do. Beyond that, it’s up to you to inform your constituency and shareholders, with what you’ve learned. That knowledge may help to obtain more seats, or help your constituency. But without independent access to information, neither are possible.
And for exactly the same reasons, an independent right of inspection is a hit with shareholders and investors. In public corporations this is absolutely essential because so much work has to be done out of shareholder view.
One big fear for any investor is that they are only getting ‘the corporate line’ and not all points of view. Investors may not agree with minority board members; but they listen to them.
The independence of board members is considered one of the keys to the success of American capitalism. The rest of the world invested with us not just because we invented light bulbs and electric cars but also because we developed controls like right of inspection that make our system trustworthy.
And now the bad news…
Ironically, the State Of Washington has one of the strongest open public meetings acts in the entire United States. So you would think that a municipal government would be a model of transparency.
But if your city has a council-manager form of government and does not afford each CM that right of inspection? OPMA is meaningless. In fact, it’s worse than that because it gives the public a completely false sense of reassurance.
In council-manager government, if a councilmember is denied access to information or staff or premises, their only recourse is the City Council. If the City Manager does not choose to cooperate with any CM, a majority of the city council must vote to take action. There’s no HR department for councilmembers.
Self-censorship
In that situation, the vast majority of councilmembers will self-censor.
“You better not annoy your City Manager too much.” “You better not annoy the current majority too much.” Because if you do, you don’t just lose votes, you may lose a lot more.
Why it’s so tough to fix…
So… let’s say you’re concerned about some aspect of City Hall. You walk up to a colleague and ask them to support you in confronting the administration. They may agree with you (in theory) or they may not. But it’s asking them to court trouble.
Most people who run for city council do so in order to do something good for their community. Maybe cut a few ribbons. A plaque would be nice. 🙂
But that’s what makes reform so hard. If you have problems of governance, under these circumstances, you have no way to fix it, except using the following mechanism:
- Develop a pleasant relationship with the administration and the majority, but keep your feelings to yourself.
- Bide your time for x) number of years, constantly working to recruit candidates who agreee to also run on an inoffensive platform, while committing in private to support ‘tough reform’.
- Attain the majority.
- Bend the administration to your will.
Great plan.
And because we are a ‘small town’, who else might stand up? Civic groups that are unhappy will not risk their status. We have no newspaper. And there are no public interest groups that operate at the level of a small town.
This lack of independence has absolutely catastrophic consequences for open government. It creates the strongest possible incentives for every elected to find ways to agree, and not attempt to address issues that the administration may not enjoy.
The scoreboard
- For the past two years I have been barred from speaking with staff or to visit city offices. In fact, members of staff have ended conversations with me, literally in mid-sentence, after receiving a call from the City Manager. I have been told by third parties that they are under orders to avoid contact with me on the street for any reason.
- I have been barred from any number of meetings where other council members were present. Dozens of emails with routine questions go unanswered. Emails that are replied to usually contain a single sentence reply. Almost none are meaningful.
- The City Manager has refused to schedule a meeting with me or take a phone call since March of 2020.
None of that conduct can possibly be related to the State Of Emergency because all other CMs have been able to do any and all of these things. Most of my colleagues have acknowledged it plainly. They simply refuse to take any action.
Again, in a public corporation that would not be possible. It would immediately trigger an HR investigation. And in cities with elected mayors or CMG with rules providing a functional of a right of inspection the above lack of cooperation does not happen either.
Here’s a chance…
Our newest councilmembers have pledged to be different. The thing I have tried to convey to them is that we should celebrate the independence of all CMs. An independent board builds public trust and has made America the model of corporate governance for the rest of the world. Des Moines is a corporation and would benefit greatly from adopting similar standards of excellence.
Therefore, we should update our Rules Of Procedure to provide a full right of inspection for each councilmember.
There are many reasons to promote an indepedent City Council, but the one you should care about most is this: It’s your money. You elected us to watch over it. And when it comes to oversight? Seven sets of eyes are always going to better than one single majority.