City Auditor Denny Nester urged the City Council last week to put the brakes on a proposal from Mayor Steve Bach to change a policy that defines the compensation and benefits of civilian employees, according to an email obtained by The Gazette.
“As you consider the changes the Mayor requests, please remember that part of your role is (to) ensure there is a balance of power, i.e., the Mayor should not be allowed to conduct business as he pleases,” Nester wrote in an email Saturday afternoon. “He should conduct business within the guidelines established by Council via policy.”
In an interview earlier this week, Nester said Bach seemed to be rushing the proposal.
The proposal called for, among other things, a suspension of performance-based pay increases for civilian employees. Bach requested the hiatus until the completion of a compensation study. Read more about what happened to the mayor’s request here.
“I don’t think he’s considered my office because I don’t think that it would be appropriate for the mayor to be making decisions for the City Auditor’s Office,” said Nester, who reports directly to council.
“It seems like it has been pushed through a little bit fast,” he said.
In the past, Nester said, any changes to the Policy and Procedures Manual would be vetted by management and explained to the workforce.
“As far as I know, that hasn’t been done, but maybe I missed it,” he said.
“When you write a policy, you have to consider everybody that is affected by it,” Nester added. “I don’t think that the mayor has given consideration to my office…I do not report to the mayor. I report to City Council.”
Nester declined to provide a copy of the email he sent to council, saying it was not a public document.
“I’ve been advised that the email you requested is not a ‘public record’ under (the Colorado Open Records Act) as it is work product for elected officials,” he said in an email.
“The email that I prepared for City Council falls within this exception and therefore is not a public record under CORA,” he wrote.
The email was leaked to The Gazette this week.
Here is the full text of the email:
Subject: Concerns related to the Mayor’s requested chages to the PPM
President Hente, President Pro Tem Martin, and Honorable Members of City Council,
I have concerns about the proposed PPM modifications the Mayor is proposing, which are included with the Agenda for the Informal City Council Meeting for this coming Monday. My concern comes from various perspectives:
As your consultant/advisor: I want Council to make the best decisions possible, based on as much known information as possible. From that perspective, I am concerned that the proposed changes have not been vetted through the established processes, which have been used for year. Normally, all proposed changes to the PPM are circulated to City Management and employee for their feedback and input. While I recognize the Strong Mayor is not required to take this action, it concerns me that there could be unintended consequences from the proposed changes that may be avoided if the established processes are followed. For example, it might decrease morale to state that “Future salary increases for employees are at the sole discretion of the Mayor or the Mayor’s designee.” While a Council ordinance can “trump” the PPM, is it accurate that Council will not have a say in future salary increases? Do you want to send the message to employees that performance does not matter?
As your appointee, who abides by the City’s PPM: I believe the proposed wording of the Policy related to Salary Range Progression would be inappropriate for my office. Since I do not report to the Mayor, I believe it would be inappropriate for the Mayor or the Mayor’s designee to determine the amount of salary increase I award my employees. While I have abided by the rules established by the Human Resources Department of the City in the past. The wording of the proposed changes appear to be too arbitrary and capricious based on the discretion that the Mayor is requesting. If you choose to adopt the Mayor’s proposed change, I would ask that you consider modifying the wording to consider my office and whether you want to give me similar authority for my staff.
As you appointee, who respects the effort Council has made concerning transparency: I believe the Mayor may need to explain the changes he is enacting with the wording changes to the Workers Compensation Policy. In the audit of Workers’ Compensation that I issued on April 28, 2010, I recommended many of the changes the Mayor is now proposing. As I understand it, he is proposing that the City abide by the State Workers’ Compensation Act and no longer provide benefits in excess of State requirements, which previously have been paid by the City. For example, the current policy allows employees, who are injured on the job to receive 85% of their normal compensation while they are receiving treatment and recouperating. The State policy only requires payment of 66% of the normal compensation. While I agree with the recommendation, I believe this change is a policy decision that should be fully explained to City Council for their discussion and action.
Article III of the Charter specifies the duties of City Council. City Charter 3-10(f) was enacted as part of the change to the Council/Mayor form of government. It read, “Personnel Policies. The Council shall review and approve by ordinance personnel policies and procedures for all City employees, including civil service employees, but specifically excluding employees of City Utilities and the City’s health system; and all municipal purchasing and contracting rules and regulations, it being determined that, as a matter of policy, City Council shall undertake those tasks through the legislative process. (2010)” To me, the fact that the Personnel Policies were specifically referenced in establishing the new form of government underscores the importance of City Council establishing the policy (boundary) within which, the Mayor is called upon to administer. Therefore, I believe Ciy Council should consider each policy change to the PPM very carefully.
Below are my brief thoughts concerning the proposed changes to the PPM Policy #8.
The Mayor proposes changes on Page 2, change “will establish” to “strives to have“. This Policy is where Council is directing the Mayor (the City) concerning a salary plan. Does Council want to direct the Mayor to establish such a plan or is Council willing to allow the Mayor to strive to have a plan? What is the direction of Council?
The Mayor proposes changes on Page 3, change “City Council based on budget restrictions” to “the Mayor“. Does Council want to give the power to the Mayor to declare a salary freeze? If you do, do you want to limit when it can be declared such as based on budget restrictions or some other basis?
The Mayor proposes changes on Page 3, change “shall” to “may, among other things“. Do you want to direct the Mayor concerning what should be considered in recommending changes to the salary plan or are you willing to leave such changes to the Mayor’s discretion. Should it include whether the individual made contributions to his campaign? I am not implying that the current Mayor would include such considerations, but one of the potential down sides of the Strong Mayor form of government is that political machines such as the Daley Machine in Chicago can lead to ineffective government due to political factors replacing some of the factors expressed in the current policy.
Recognizing this email is already too long, I will not examine each proposed change as I have done fro Policy #8. I ask that each Council Member consider the changes the Mayor is requesting very carefully. I believe legislation and policy are the responsibility of City Council. As you consider the changes the Mayor requests, please remember that part of your role is ensure there is a balance of power, i.e., the Mayor should not be allowed to conduct business as he pleases, he should conduct business within the guidelines established by Council via policy. Something as simple as changing the definition of Salary Range (Page 16 of the Mayor’s proposal) could have consequences recognizing that the City currently has employees who are being paid above the Control Point.
While looking over the Charter and Code in preparing this email, I also noticed the following:
Per City Code: 1.2.203: COMPENSATION: Each officer appointed by the Mayor and City Council shall receive a salary set by ordinance5
Considering all the changes the Mayor announced this past week, has an ordinance been prepared or presented to Councilrelated to the Mayor’s recent appointments?
I apologize for the length of this email. I hope it is received in the spirit of respect with which it is sent.