Why can’t the Mayor and Council read the Saul Ewing report?

Recently, a subscriber to the Twinbrook Neighbors listserv asked why the Mayor and Council haven’t seen the report compiled by Saul Ewing, the law firm the City hired to investigate allegations of improper personnel activity in the City of Rockville government.  I decided to write a thorough and, hopefully, helpful response to the question, and I thought it was worth sharing here:

Thank you for bringing this up.  There is a fair amount of misinformation out there on this matter, and I appreciate the opportunity to clear it up as best as I can.

A lot of this issue has to do with the defined roles of the Mayor and Council and the City Manager under our City Charter. The Mayor and Council hire, supervise, and fire only three people: The City Manager, the City Attorney, and the City Clerk.

The City Manager ultimately hires and fires everyone else.  That responsibility stops with the City Manager; it doesn’t flow up to the Mayor and Council.  It seems like it should; it doesn’t.  This is where I believe a lot of the misunderstanding comes from.
If the Mayor and Council wanted to fire the police chief, for example (an example I am picking because I think Chief Treschuk is absolutely first-class), we would be legally unable to do so.  Only the City Manager can do that.  We would have to fire the City Manager and then find and hire a new City Manager who would agree to fire the Chief.

Just as the Mayor and Council doesn’t have the power to hire and fire most City staff, we don’t have the right to look at their personnel files.  We are not in their chain of command. The Mayor and Council have access to just three personnel files: the City Manager’s, the City Attorney’s, and the City Clerk’s.

The Mayor and Council’s role in the Saul Ewing investigation was to write the check and let everyone else do their job. We authorized the City Manager to spend a total of $190,000 to hire Saul Ewing to conduct an investigation into the allegations and report back to her and the City Attorney.

This is not entirely unlike our authorizing the Department of Public Works to spend money to repave Rockville’s streets.  We write the check; they do their job.  I don’t expect tons of asphalt to be delivered to my driveway.

Saul Ewing was hired specifically because they do this sort of work regularly.  They had no interest in the outcome, and had nothing to gain by whitewashing the situation. If anything, their incentive was the reverse – had they reported lots of bad acts that needed to be investigated further, they could have increased their billings substantially.

Saul Ewing conducted a thorough review of the allegations out there, and wrote a thick report for the City Manager.  This report was chock-full of sensitive personnel information.   It was crystal-clear from the start that the Mayor and Council would never have access to this information.  Anyone who says otherwise was not paying attention; I don’t know how else to put it.

The City Manager, who is allowed to see the report, is likewise forbidden from disclosing its contents to the public, or even discussing them in much detail, because the discussion would be about nothing but personnel information.

The Mayor and Council did receive an executive summary and a briefing on the report, which answered the questions I needed answered: Was there any unlawful conduct?  No. And was the City Attorney at fault for anything that went on? No.  (Our new City Manager, Barb Matthews, having just arrived, was obviously in the clear.)

The third question I needed an answer to was: What can the Mayor and Council do to prevent the type of perceived and real inconsistencies that are being reported by some City staff? The answer was: 1. Fix the personnel manual to make sure everyone knows the rules and help them be applied consistently, and 2. Provide funds to modernize the City’s personnel systems.  We are well on our way to accomplishing the first and I believe the next Mayor and Council will write the check for the second next year.

I have been disappointed by colleagues, candidates, and former City elected officials who are running around telling newspapers that the Mayor and Council have a right to this information.  They are wrong.  I will repeat what I told the Sentinel:

Moore said the mayor and council are not allowed to view the report, and doing so would be a gross violation of people’s privacy.

“It is against the law and I do not want to break the law,” Moore said. “Anyone who says the mayor and council have the right to look at those personnel details is wrong on the law. Period.”

I have not had anyone challenge the accuracy of my statement. It’s not a close call: The personnel records of employees of all sorts, including government employees, are protected very carefully under the law, as they should be.

If the Mayor and Council were to receive a redacted report, so much would have to be blacked out that we could be staring at little more than pages of conjunctions and punctuation.  It would be a gross waste of time and taxpayers’ dollars, and would shed no light on the matter.

I hope I have answered the questions that are out there on this.  I am happy to answer any others.

 

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