Palo Alto Weekly

Spectrum - July 12, 2006

Diana Diamond: Utilities probe leaves hanging questions

by Diana Diamond

Something feels very uncomfortable about the City of Palo Alto's handling of the investigation of the Utilities Department.

And a good part of my unease is that city officials have told residents very little about the findings of their entire investigation, and have distorted some of what they told us.

We are just beginning to scrape the surface of what happened, thanks to a Palo Alto Weekly suit against the city asking that reports about the investigation be released.

Last week we learned from some of the court documents that Utilities Director John Ulrich, one of the highest paid officials in the city, and his assistant, Scott Bradshaw, faced possible disciplinary action "for managerial and supervisory deficiencies" in their handling of the Utilities Department. They were not disciplined. Bradshaw resigned instead, and Ulrich was allowed to retire, with benefits.

At the time city officials never publicly acknowledged that either man faced any disciplinary actions.

"He felt it was a good time to retire," City Manager Frank Benest told the Palo Alto Weekly in October 2005. And on Oct. 5, Benest told the Palo Alto Daily News that Ulrich "retired for personal reasons" and that he was "was not involved in any malfeasance."

Why the cover up? What would have been so wrong about Benest saying that there were some questions about Ulrich's management of the department, and that given the possibility of discipline he instead decided to resign. I don't find anything terribly embarrassing about that, and it's a lot more truthful. And by acknowledging the possible discipline, at least Benest would have been open about what happened.

There's also the timing issue. Ulrich, who was making $180,500 at the time, announced he would resign on Oct. 5, effective Jan. 3, 2006 -- nearly three months later. Perhaps too conveniently, that official resignation was one day after his birthday, making him eligible for higher retirement benefits. Benest was his boss, so I assume he agreed to Ulrich's delayed resignation deal.

Like other employees who retire from the city, he will be entitled to almost full salary, health insurance and other benefits. Ulrich wasn't seen much around City Hall during the three-month interim, so I would say he got a good deal -- too good, in my estimation.

Plus the court records show that declarations from Benest and Assistant City Manager Emily Harrison show that no formal "notice of intended discipline" nor "final disciplinary document" were placed in either Ulrich's or Bradshaw's personnel files. So they left with a clean slate -- at least on official city papers.

I still don't know what errors of judgment they made, or what, according to Benest's declaration, "managerial failure to adequately anticipate and avoid the employee misconduct and management deficiencies in the department" actually occurred. I do know that simply resigning in the face of serious allegations and possible disciplinary actions should not result in a clean slate.

That's point one. Point two is that the City Council has been way too lax about finding out what really happened.

Several council members said they trusted city staff to investigate, and the city staff issued a two-page report, and that was enough to satisfy them. But they should have probed. The city paid $300,000 to conduct this investigation and certainly council members should have found out a lot more what the investigators learned, and not be satisfied with a two-page report.

Council members are ultimately responsible for running the city, so they can't say an investigation that resulted in two top Utilities Department officials resigning plus 19 Utilities Department employees being disciplined, including six that were fired or allowed to resign in lieu of termination is not within their scope of responsibility. It is.

Mayor Judy Kleinberg said in a letter to one resident that she could not interfere because of "attorney-client privilege," which City Attorney Gary Baum said existed. "We all 'care' about this situation but this is the subject of a court case and with active litigation and confidentiality of records and attorney/client privilege involved, we are not entitled to see any of the documents at this point," Kleinberg wrote.

Yet Kleinberg and the rest of the council members are the clients, so they have an absolute right to see what went wrong in the Utilities Department and what facts the investigation brought out. That investigation presumably dealt with the facts of what happened, not the attorney-client privileges involved. And the city attorney's office was not representing the utility workers, it was representing the council.

Some at City Hall have cited the privacy rights of employees. But the judge ruled on that, and the city lost that issue in the courts. Superior Court Judge Kevin McKenney said that the public's right to know about conduct of public employees clearly overrides any privacy rights.

There's still a fog surrounding this investigation. The Weekly's attorney, Judy Alexander, is continuing to challenge the attorney-client privilege in court, and McKenney is scheduled to hold a further hearing on this case on July 31.

The city is continuing to fight this suit, perhaps because some city officials know that if all their reports and declarations are made public, they will show that management at the highest levels of the Utilities Department has not been good, and that could make Benest et al look bad. And where does the buck ultimately stop?

Let's just hope our council members remember that they are representing us; they have not been elected to protect those working at City Hall.

Diana Diamond is a longtime Palo Alto resident. Her e-mail is Diana@DianaDiamond.com. Her column appears every other week in print and her blogs and commentaries on a number of community issues appear twice-weekly at www.paloaltoonline.com. Read and add your comments to Diana Diamond's regular blog at PaloAltoOnline.com, where recent postings include: "Lions vs burglars" (posted July 8), "Enron loses this time, but Palo Alto lost last year" (posted July 4), "Let's vote on a new police buidling now" (posted June 29), "New Utilities Director could cost Palo Alto lots of $$$$" (posted June 20), and "Group think among the political" (posted June 14).

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