We've Dealt With the Horn, Now How About the Whistle?

You’ve heard our concern about the “information lock down” in City government that makes it difficult for Council, and, therefore, the public, to get a complete picture-- for better or for worse-- of what’s going on in City Hall. It can also prevent good solutions to problems from bubbling up from staff to the policymakers.

Our own reader comments have suggested methods of facilitating better communication between those doing their jobs “on the ground” and Council, including the idea of a ‘dead drop’ or an ombudsman. All of this discussion was in the context of improving services.

But many agencies are currently looking at the communication issue from the perspective of a whistleblower. A whistleblower is someone within a company or system who reports wrongdoing that he or she becomes aware of from within that position. The Government Accountability Project is a good source of information on this concept. You could also check out the U.S. Office of Special Counsel that is currently responsible for protecting federal employees who alert their superiors to questionable activities. For a review of this legislation in a larger context, you can check out this political science article: click here.

The practice leads to positive changes to the system, but often negative consequences for the person doing the reporting. The information provided by employees who speak out usually exposes practices that put management in a bad light, and thus puts the whistleblowers at risk for some kind of retaliation. After sounding the alarm they become outcasts, and are soon forgotten, marginalized, or driven out of the organization. In other words, no good deed goes unpunished.

Fearing management may take a “shoot the messenger approach,” many would-be whistleblowers remain silent. That’s why a clear procedure for raising issues is needed with solid guarantees that there will be no repercussions for responsible reporting. An example can be seen here.

In other words, to encourage employees to do the right thing, those in charge must send a clear message that they want to know what’s going on and that they will act in a responsible way with any information they are given. On the other hand, they must also make clear that the goal of information sharing is the improvement of the organization, not the punishment or embarrassment of any individual. Striking that balance will encourage people to come forward while reassuring everyone that blowing the whistle is a serious matter not to be abused.

We’re not aware of any situation in our City government at the moment that cries out for a whistle. But, it makes sense for any legislative body that is committed to good government to have a whistleblower policy in case a situation arises that warrants someone speaking out.

As we stated above, this topic is being discussed at various levels of government and private industry. Just last year both houses of Congress passed the bipartisan-sponsored Whistleblower Protection Enhancement Act which builds upon existing legislation from the 1990s. While the legislation was praised by the Government Accountability Project, supporters have been told that President Bush will veto it. You can read about that here.

Closer to home, the Democrat and Chronicle just reported on the Greece School Board’s approach to whistleblowing (click here to read the article). The proposal is still in draft form, but as the comments on the D&C’s website indicate, there are concerns with implementation of the policy. Specifically, there is doubt that the governing body (in this case the school board) would act on the information but instead might actually condone the bad practices being reported.

While the method may need some adjustments, we agree with the spirit of the proposal. Employees need to feel that the board is truly committed to protecting the public interest, and that includes fair employment, spending, and policy decision. Having a mechanism for those within the system to report suspected abuses of power, is an essential part of that commitment.

The horn on top of city hall was determined to have a significant public purpose, and we believe the whistle within is important as well. We’re interested in your thoughts on this idea and how it might work in Geneva. Give your feedback by clicking on the ‘responses’ link below.

Questions Prove That More Answers Are Needed

City Council met Wednesday night (2/20) to discuss several issues (you can find the agenda here). The one that dominated the meeting, however, was the consideration of a resolution about stewardship of Seneca Lake’s water quality and the air quality in the Finger Lakes. In absence of a regionally coordinated agency, the Seneca County Industrial Development Agency (SCIDA) took charge of the environmental review process for the proposed biofuels production facility on the eastern shore of Seneca Lake. This ethanol plant is one part of a larger redevelopment plan for the former Seneca Army Depot. The plant investors have produced a statement of potential impacts that detailed the water consumption, treatment, discharge, air emissions, increased truck and rail traffic to the site and other considerations. Clearly, the plant is a major construction project requiring several environmental permits to operate, from agencies like the state Department of Enviromental Conservation (DEC) and US Environmental Protection Agency (EPA).

Projects of this magnitude require that the lead agency (in this case, SCIDA) gauge the potential environmental impact and make a determination. According to DEC (read it for yourself here) the lead agency can either say that the project has little or no environmental significance; or that it has the potential to have environmental significance. It’s an either/or choice, no middle ground. The DEC website provides examples of projects that would be classified ‘insignificant’, they include residential home construction, swimming pools, and garages. The investment group’s own environmental engineering study, a document weighing several pounds, provides insight into several potential environmental impacts. This is clearly not your typical neighborhood construction project. So, it seems that the SCIDA would issue a ‘positive declaration’, meaning that an Environmental Impact Statement would be required. To be clear, the issuance of such a declaration is not a statement about the project itself. Just like our City required an EIS of Guardian Industries, but still welcomed the business with open arms and financial assistance, so too could the SCIDA move ahead with the biofuels plant while still conducting the environmental review. By doing so they fulfill their dual-obligation: to serve the public by improving the economy and to serve the public by maintaining a decent quality of life.

Instead, the SCIDA issued a negative declaration, stating that the project has little or no environmental significance. As you can imagine, this was cause of great concern to residents around our lake. We all draw drinking water from Seneca Lake, and we’d all like our air quality to be well-monitored for any potentially hazardous emissions. So, a petition was filed with the Geneva City Council requesting that council pass a resolution asking SCIDA to rescind that negative declaration. At this point, SCIDA could rescind its finding and ask the investors to work with the regional representatives to produce the Environmental Impact Statement according to DEC guidelines. The project planning would proceed as the review happened, but the public would be allowed to review, comment on, and ask questions of the developers regarding the controls in place to prevent the discharge of contaminants into our living environment.

A gaggle of hired experts and government officials showed up to urge Council NOT to pass the resolution, including an engineer and a consultant paid by Empire Green Biofuels, the head of the Seneca County IDA, an IDA board member, and a representative of Finger Lakes Railway, the company that will transport the fuel that is produced at the site. They unfortunately portrayed the resolution as a vote against the plant, which it clearly was not, and chastised the Council for ‘meddling’ in the affairs of its neighbor.

Although the resolution had overwhelming support from council just two weeks ago, when it was added to the agenda for action, that support was chipped away by the plant’s investors. Councilor at Large Ron Alcock and Second Ward Councilor Paul D’Amico agreed that we shouldn’t get involved in Seneca County business, ignoring the fact that the project involves truck traffic, railroad cars, airborne emissions, water supply issues, and other concerns directly effecting Geneva. Alcock went on to speculate, citing no evidence, that the region’s lakeside wineries may “pollute” the lake more than an ethanol plant would.

In the end, the motion was tabled to give council more time to familiarize themselves with the issue and communicate additional questions or concerns to the Mayor. It seems, at Councilor Greco’s suggestion, that Council will identify their main environmental concerns and discuss mitigation strategies with SCIDA officials. This is a good idea, but it should occur in addition to and not instead of the state-mandated Environmental Impact Statement.

We still hope that the March 5th meeting will bring a change of heart to some of the resolution’s opponents, and we also hope that some of the issues raised during the discussion will be addressed. Perhaps most importantly, Geneva could take the lead in strengthening regional partnerships around Seneca Lake for the protection of water and air quality. There is always competition for economic development, but counties should not race each other to the bottom when it comes to environmental oversight. Companies looking to relocate to the Finger Lakes need to know that we’re happy to have them so long as they understand we have clear standards that are equitably applied to protect the very resources that make the area desirable in the first place!

The image above appears on the website of the plant developer.

Is A Tax Cap the Answer?

On January 23rd, Governor Spitzer created the Commission on Property Tax Relief, naming Nassau County Executive Tom Suozzi as its chair. You might recall that Suozzi unsuccessfully challenged Spitzer in a primary for Governor, but his appointment doesn’t seem just an effort to mend fences. Instead, we believe that Suozzi’s track record of serious government reform makes him the clear choice to head up a commission that will not just study, but actually improve the situation it is charged with studying. You can read more about Suozzi in this article from Governing magazine.

Governor Spitzer’s announcement states that the bipartisan commission “will examine the root causes of high property taxes, identify ways to make the State’s property tax system fairer, and develop a fair and effective school property tax cap to hold the line on property tax growth.” The commission is currently holding a series of hearings across the state and is expected to have preliminary recommendations in May, with a final report expected by December of this year. Augustine receives regular updates about the commission’s work, and you can access the latest one here.

Much of the testimony received by the commission so far has been in response to the controversial proposal to cap school taxes. We have been clear in our position that the property tax bill of Upstate cities like Geneva is pinching senior citizens, scaring off young people, and threatening the financial stability of families. Any one of the following articles should provide a fair outline of the situation:

“Does Geneva Have the Highest Taxes in the Country?”
“A Tax Exemption Would be Good, but A Lower Tax Rate Would Be Better”
“Not All Property Tax Relief is Created Equal”
“Rethinking City Living”
“A Tax Decrease in 2008 Is Possible! Here’s How:”
“‘Unshackle Upstate’: A Petition to the Local Warden Might be More Effective”

But would a cap on property taxes, either for the school or the city or the county, solve the problem? Is it just a way of forcing the governing bodies to make the decisions that they lack the political will to do now? Is it up to the state to determine the level of services a community is willing to support? Would it be tied to any performance outputs, or would boards simply be allowed to cut those expenses that have the least powerful lobbies, even if those expenses yield better results?

What do you think? Could a cap on taxes solve our problems? Click on the 'comments' tab below to leave your thoughts.

The Latest Bloggers' Appearance on WGVA

Our latest appearance on Ted Baker’s WGVA morning show is now available for your listening pleasure in the radio archive. Click here to download it.

He led off the discussion with questions about Governor Spitzer’s “secret meeting” with various officials in a Canandaigua diner, without press present. Baker was rightly concerned that the press had not been notified of the meeting. Perhaps of even more concern is that few people thought the exclusion of the press was problematic. Have people forgotten that the role of the press is to be a watchdog for open government?

Speaking of open government, the discussion turned to City Manager Rich Rising’s farewell address on that topic. Augustine read an excerpt of the statement as printed in the Finger Lakes Times and we discussed the role of process and outcome in government decision-making, as a preview of our post on the topic.

Covering some of the action at the last Council meeting, we critiqued Councilor Greco’s handling of appointments. Capraro noted that Greco had voted against past appointments when council was not given notice of applicants in advance and/or was not provided an opportunity to meet the applicants. Yet Greco presented nominations to Council without providing the resumes or even the names of the nominees ahead of time, and they were appointed. The point here is, again, the process.

Looking ahead to coming events, we discussed the City Manager search. With the deadline for applications come and gone, and with some 26 applicants in the mix, the City is headed toward the next stage of the search. The City is also looking for a City Attorney. Council will receive a report on the City Attorney position at the next meeting and discuss the next steps in hiring a replacement for former-full-time-currently-interim City Attorney Clark Cannon.

"Keep your eye on the ball," but Pay Attention to The Rules of the Game

At the February City Council meeting, his last one on TV, outgoing City Manager Rich Rising delivered a farewell address, his parting words after fifteen years of service in Geneva City government. You can read the entire statement here.

Rising began his reflections on City government with the assertion that “the ends don’t justify the means,” meaning, of course, that unwholesome practices can’t be tolerated just because things ‘turn out okay’. We couldn’t agree more.

All too often, people justify not doing the right thing with an appeal to the positive consequences they think will follow, or the negative consequences they are trying to avoid. For instance, telling a lie and trying to explain it away by saying that it was necessary for a greater good.

That kind of reasoning-- saying that the ends do justify the means-- is called consequentialism. A ‘consequentialist’ will say that any action is okay if it produces the desired outcome. We agree with Rising’s opening statement that consequentialism is bad for government. It’s even worse when consequentialism is paired with back room decision-making, which it usually is.

An example of the negative impact of consequentialist decision-making in government can be seen on the federal level when legislators attach narrow special interest bills onto larger spending legislation. When the spending bill passes, dollars are signed over without much public notice, except back in the home district where it is touted with great fanfare. Such efforts, sometimes called ‘riders’ are often used to promote projects that wouldn’t survive a lot of public scrutiny. The conservative Heritage Foundation tracks these bills and offers their own fact-based point of view on the matter. We don’t necessarily agree with all the particulars, but we think they get the general idea right. You can read it for yourself here. Members of Congress who get these add-ons to spending bills might say, “Well, look, my district needs this project. The money will be put to good use. If I have to attach it to a bill that funds the troops, it’s OK.” But, is it?
It’s not up to No Strings Geneva to assess the private morality of public officials, but everyone has the right and responsibility to assess the way public officials make public decisions. And herein lies the importance of that word enemies of open government dread: process. Process equals protection. Simply put, there is a right way and a wrong way to do things, such as:

• Holding public hearings. On the Geneva City Council it was common practice for public hearings on a proposal to be held five minutes before the vote. At the urging of Capraro, Council now separates the scheduling of a public hearing from the vote on the resolution, giving at least the appearance that what was raised at the public hearing might matter and that Council would look further into points raised by the public before casting their vote.
• Following the Open Meetings Law. The City Attorney and City Manager used to use the catch-all phrases: personnel, or sale or lease of city property, as the reason for closing the door on the public. Now Council is requiring a list of particular agenda items for executive session, as the law requires.
• Avoiding even the appearance of impropriety. Conflicts of interest need to be avoided no matter how convenient it might be to ignore them.

Creating—and adhering to—process, is in the public interest. It protects everyone. It gives the public a safeguard. It even protects government officials. It keeps their dealings out in the open, where they are more predictable, more susceptible to sound reasoning, and responsible to fact sets. Developers, or others, doing business with the government, are protected from public suspicion and are guaranteed fair treatment if standard processes are followed. It keeps everything on the up and up.

Following the law, such as the New York State Open Meetings Law, and being consistent in decision-making are the right thing to do regardless of what might be the end product (although we believe that a good process will yield a good outcome!).

Unfortunately, it seems that Rising had a change of heart while composing his statement. He took back what he had said at the beginning. Specifically, he wrapped things up by saying :

“But, how we conduct ourselves is how we govern; not necessarily why we govern or what we are trying to achieve. It is important to keep your eye on the ball and focus on achieving real community goals. That’s how the community will measure our success--what we produce is at least as important, if not more important, than how we produced it.”

Wait a second! First he says the ends don’t justify the means, and then he says what we produce [the ends] might be more important than how we produce it [the means]. That’s a contradiction. And when critiquing the performance of public officials, we call it doublespeak.

Think of it this way: Imagine you are a small business owner in the community, or a homeowner (or both), and a new big business rolls into town demanding tax breaks and public land. This business says it will bring 50 high paying jobs and the potential to expand. Would you want the government to say “forget the public input, forget open government, forget protecting our existing businesses, we’re going to cut this deal tomorrow because we need the jobs?” Should that business be pursued at all costs, seizing property through eminent domain, taking the new company’s word on cost projections without double checking those assumptions, and ignoring the will of the community? We think not. Doing the right thing might take a little time, but it doesn’t take too much time. It might take a little effort, but it doesn’t take too much effort.

We’ll say, again, it’s okay to have differences of opinion on these matters when conducting personal business, but to say that outcomes are more important than process seems unwise operating instructions for a government body.

Good government practices will have good community outcomes. Rising was right the first time: The ends don’t justify the means.

Opening the 2008 Radio Interviews With Open Government

We hope the theme for Geneva in 2008 is open government. That was the theme for our opening radio appearance of the year on 1240AM WGVA. We praised the Quality Communities committee for hosting a really excellent public forum on the lakefront’s future (another open mic session will be held Tuesday, 2/12 at 6:30pm at North Street School). Capraro summarized the majority of comments made and drew attention to some of the unique ideas that only come from a broad-based brainstorming session of this sort. To hear more about them, click here.

Discussion about the lakefront meeting occupied most of our time with host Ted Baker; and with good reason. Now that our community is mobilized and participating, what’s important is that Bergmann and the Committee pay attention to what folks are saying: no gated communities, no condos, no further privatization, closer connections with downtown, and more public access to the lakefront.

We were able to say just a few words about the status of the city manager search. Again, this is a situation where public meetings make all the difference. By throwing the process wide open to the public, Mayor Einstein brought out many city residents who have a vision for Geneva’s next manager that would certainly move us in the right direction. The residents who came out to the six meetings took their charge seriously. They asked good questions and offered great suggestions for how the city might select amongst candidates.

It was good to see Councilors interacting with their constituents and taking their concerns to heart. These meetings were another giant leap towards better government for Geneva. Significantly, and for the record, Councilors D’Amico, Valentino, O’Malley, and Augustine agreed that, as far as they were concerned, the February 1st application deadline is only a guideline and not a rigid deadline for apps. As Councilor Valentino stated, “It’s not the deadline that matters, it’s finding the right person that matters.”

In referencing our post about the search rumors, we emphasized the need for candid discussion about rumors that could undermine the process. Given the previous administration’s tendency to leave the public in the dark, it is critically important that every action of the new council be an open book. Any widespread cloud of suspicion carries with it the risk of tarnishing even the best efforts to do the right thing. So, rather than trying to suppress a rumor and hope it will go away, it’s better to treat it aggressively. Open it up for discussion and examination and let the sun shine in. Then people can ‘move on.'

All of our radio interviews, including this most recent one, can be accessed via the No Strings Document Library. Click on 'Radio Archive.'

Separation, Fusion, Inversion: The 'City Manager' Post in Geneva City Government

The phrase, separation of powers, sometimes known as checks and balances, refers to a way of limiting the power of government in a democracy. The way it works is, first, to divide government into branches; and, then, to assign particular duties and powers to each branch in such a way that each branch has some say in (or oversight of) what the other branches may do. Democracies generally feature the separation of powers to protect the freedom of their citizens. (Basic background on this topic may be found here and here.)

Various state and city charters follow the lead of the US Constitution in dividing government into three branches: executive, legislative and judicial. The executive branch carries out laws; the legislative makes laws; the judicial interprets laws. An example of checks and balances where one branch may limit the power of another would be the executive’s ability to veto and the legislature’s ability to override a veto.

The phrase, fusion of powers, refers to a democratic system where one branch, normally the legislative branch, is held above the others, and their power is derived from the legislative branch. An example of the fusion of powers would be in the United Kingdom, where Parliament, the elected representatives of the people, chooses the Prime Minister, the head of the executive branch.

It is generally understood in a fusion of powers that the legislative branch is the supreme branch of government. That makes sense because it is the closest to the people and, through direct elections, the most accountable.

But what about the separation of powers in the City of Geneva? The City Charter, which establishes the government of the City [link to City Charter], designates City Council as the legislative branch and the supreme governing body of the City, and the City Manager as the executive branch. The powers of each branch are carefully restricted.

According to the City Charter, Council “shall exercise all powers of legislation.” It is up to City Council to “determine the policies of the City, the execution of which shall be under the direction of the City Manager. Neither the City Council nor any of its members shall exercise any administrative duties.” The Mayor “shall be recognized as the head of the City government, but shall have no administrative powers or duties.” The City Manager “shall be the Chief Executive Officer of the City,” but is appointed by the City Council and is “responsible to the City Council for the administration of all city offices.”

Because the City Manager is appointed by the City Council, the City operates under a fusion of government powers. City Council is the supreme governing body and appoints the chief of the executive branch, the City Manager, yet it has no executive powers of its own.

Council does have the power to investigate the City administration, to compel testimony with subpoenas, demand records, and call in staff to report on issues. Of course, it can also appoint, and re-appoint, the City Manager. Those are checks the legislative branch has on the executive-- watchdog functions, which provide some legislative oversight of the executive. But they are not built in to the system and not exercised in the day-to-day functioning of government. For example, Council does not have an ombudsman for city employees through which concerns about city operations might be directly communicated without the reliance on the City Manager for filtering information to Council.

So, under this system, if there is a weak Mayor, and/or a weak, or uncritical Council (a Council which constantly defers to the City Manager or does not feel qualified to make judgments which are not in line with City staff recommendations), the City Manager may proceed virtually unchecked-- to the point where he/she assumes the position of supreme governing branch. It would then be as if Council were the subordinate of the City Manager. We have coined the phrase, fusion of powers with inversion, to characterize such a situation. It means that there is fusion, but, instead of the legislative branch being the supreme governing body, the executive branch takes on that role.

That would not bode well for democracy. The City Manager is an appointed position which means that it is, by definition, not directly accountable to the people. We’re all familiar with the phrase “the buck stops here.” In our city government, the buck is supposed to stop with the people--as represented by the elected Councilors. When those Councilors give over their turn to an unelected City Manager, they essentially give away the people’s power.

As the City proceeds in its search for a new City Manager it must also seek to correct any inversion in the separation of powers so that open and honest government may be fully restored.

City Hall Installs Revolving Door

A city employee, upset that his office is undergoing a review, abruptly resigns. The city, it is said, is left in the lurch. In an effort to maintain services, the city council looks for a short-term replacement. Should they bring back the very person who caused the crisis?

If you answered “yes,” read no further. Instead, proceed straight to a political party boss to put your name in for public office because you are thinking along the same lines as the powers that be in Geneva.

The City Council agenda (available here) shows that Councilor D’Amico is offering a resolution to re-hire Clark Cannon-- the same Clark Cannon who just resigned as City Attorney-- as the City’s interim legal counsel.

He would serve until the review of his former office is completed and a permanent arrangement for City legal services is in place. The kicker is, how much will it cost the City to re-hire Cannon? The $70 per hour he was previously said to be receiving, or the $125 per hour he will be receiving from the IDA (as reported in the newspaper)?

We had just posted on the need for the public to go easy on Cannon. (You can read that post here). It had been said that his early departure would cost the city thousands of dollars in additional legal expense, and we didn’t think that was necessarily true. Never in our wildest imaginings did it occur to us that any ‘additional expense’ would actually go-- back to the future-- to Cannon himself!

Understanding the Cost of 'Interim Legal Services'

At its January 23 meeting, City Council agreed to look for a local attorney to handle any pressing legal matters for the City until a replacement has been found for City Attorney Clark Cannon. Cannon resigned from the post, effective February 1. Compensation for the interim assignment would be on an hourly basis, as is common practice in the legal profession.

To assist Council in its deliberations, City Manager Rich Rising presented a memo to Councilors outlining both the routine tasks that to might be handled by a local attorney and those weightier matters that typically are outsourced to a larger firm. For example, a local attorney would handle routine real estate closings on city property, and a big-city firm would handle labor and personnel issues that might arise.

Rising also indicated that the full time attorney’s workload has averaged 30 hours per week between work for the City, the IDA, and other agencies, such as the Revolving Loan Fund and Jobs for Geneva. (See our December post on this issue).

How these duties will be handled long term is the subject of the legal services review committee appointed by Mayor Einstein. The committee will study and report to Council on possible arrangements for City legal services (hourly contract,; salaried, part-time; salaried, full-time, with or without a private practice, etc.) within the next two months. Council will then review the committee’s recommendations and will proceed with filling the post based on one of those models.

All the talk about interim services raised important questions about the actual costs of outside legal work. Rising asserted, and it was repeated in the local paper, that an interim arrangement would likely cost more than the full time salary for the same period of time. That’s certainly possible, however, we are not convinced that the City will be paying more than it otherwise would have for total cost of all legal services.

How can that be? Well, a good many of the items that Rising bundled into the outside legal services category under the ‘interim services plan’ are legal services that the city is currently outsourcing-- and would have to outsource anyway, interim plan or not. To put it another way, the City has used “outside legal services” every year, when the city attorney post was part time and when the city attorney post was full time. Those items are scattered throughout the budget. It is a fact of life that some of the City’s legal work is better handled by larger firms, with more staff and greater technical expertise in certain aspects of the law.

Approval of an ‘interim legal services’ plan will be on the agenda for the February 6 City Council meeting. Because of the two pronged approach— an interim local attorney to handle legal issues on a short term basis and a large legal firm to handle the issues that are more complex—the cost of the interim arrangement will not be immediately clear.

It’s too early to determine the actual costs incurred, or saved, from the untimely resignation of the City’s full time attorney. Let no one criticize Cannon for resigning so suddenly and sticking the City with a larger legal bill from outside attorneys until the actual costs are known. We predict that the city will actually spend less money on ‘standard’ legal services this year (handled by a local attorney), and will expend the same amount on ‘specialized’ services (handled by a firm), so folks should go a little easier on Cannon.