Controversial remarks by Yucaipa Mayor Bobby Duncan that were condemned as out of keeping with the broader sentiment of the Yucaipa community and the attitudes of his colleagues on the council provoked an effort by city staff to codify a set of conduct guidelines for the council.
That came after Duncan, caught in the contretemps his remarks had created, attempted to mollify his critics with an admission of having made a “mistake” with his social media postings, and offering what was repeatedly said to be an inadequate apology over what were a series of uncharitable characterizations of Muslims and immigrants in general.
In response to the full council’s April request that staff come up with rules for the council’s public comportment, a document was generated which the council took up and ultimately, by a 3-to-2 margin, adopted this week.
A sober assessment of the code of conduct, which was drafted in an atmosphere of upheaval, reveals a cross section of sensible and basic directions geared toward the conducting of public business in a civil fashion intersticed with elements of restriction advocated by city staff that in at least some respects reverses the hierarchy in which the council, as the representatives of the people, exercises control and authority over city staff, such that the individual council members’ ascendancy, such as it is, is significantly attenuated. Moreover, certain provisions in the code seem to intrude on the council’s constitutional rights as citizens, particularly with regard to freedom of expression.
The code articulates some basic truisms and worthwhile if somewhat trite lectures and lessons in politesse such as “Demonstrating respect for each individual through words and actions is the touchstone that can help guide council members to do the right thing in even the most difficult situations” and “Council members must behave at all times in a manner reflective of the trust placed in them by the public.” The code also seeks to prevent an individual councilmember from overstepping his or her own authority by dictating policy independently without the consensus of the full council, or attempting to micromanage things or usurp the role of the city manager when the proper latitude for an individual councilmember is ruling at the political level in concert with the council as a whole at the top of the municipal chain of command.
“Do not get involved in administrative functions,” the code states. “To prevent raising concerns of misdeeds or questionable motives, councilmembers must not attempt to influence city staff on the making of appointments, awarding of contracts, selection of consultants, processing of development applications, or the granting of of city licenses or permits.”
Beyond cataloging the rightful province within which a member of the council is to function, the code moves into areas which in many respects intrude on the manner in which an elected official is able to advocate on behalf of constituents or assert his or her own position. A recurrent theme is the desirability of eschewing contention, downplaying differences, legitimate or otherwise, and hewing to a common position that betrays no substantive differences of opinion or position among the city’s elected officeholders and city staff.
“Avoid personal comments that may offend other councilmembers,” the code states. “If a councilmember is personally offended by the remarks of another councilmember that assail, question, or impugn his/her integrity, character, or motives, the offended councilmember should make notes of the actual words used and call for a “point of personal privilege” that challenges the other councilmember to justify or apologize for the language used. The presiding officer will maintain control of the discussion.”
The code emphasizes the premium that is placed upon projecting the impression that there is substantial agreement at all levels of city government on issues and policy.
The code of conduct also instructs councilmembers to “continue respectful behavior in private,” stating, “The same level of respect and consideration in differing points of view that is deemed appropriate for public discussions should be maintained in private conversations. Be aware that the insecurity of written notes, voicemail messages, and email technology allows words written or said without much forethought to be distributed wide and far. It could create unpleasant circumstances and cause embarrassment. Written notes, voicemail messages and emails should be treated as potentially ‘public’ communication and part of the public record.”
Lines of authority exist and should be maintained, according to the code.
“The city council has direct authority over the city manager and the city attorney; all other employees of the city are under the direct authority of the city manager,” the code states. “Following this hierarchy is important to the success of the basic structure and to maintaining positive and effective working relationships between the city council and employees, and will prevent any confusion and /or inefficiency and contradictory direction.”
Even though the code designates the council as having direct authority over the city manager, it also limits the council, in large measure, to obtaining information about the operations of City Hall only through the city manager. With the city manager serving as the gatekeeper of the information flowing to the city council as well as serving as the ultimate arbiter of whether information individual councilmembers request will be provided to them, the code in this way puts the councilmembers at a disadvantage in seeking to wield authority over the city manager. The code also gives the city manager discretion in terms of whether information requests by the council will be fulfilled.
The code states that the councilmembers should “Limit contact to specific city staff. Questions to city staff and/or requests for additional information or services should be directed only to the city manager. If, in the opinion of the city manager the request makes sense and requires little staff time and/or resources, the city manager can direct the appropriate department to fulfill the request. If a councilmember needs to review a document maintained in the city’s records system, upon request to the city manager, staff will retrieve the requested document. The city manager is legally responsible for the management and retention of city records, and only staff is authorized to retrieve information from the records system.”
The code further tells members of the council, “Do not disrupt city staff from their jobs. To maintain efficiency in daily activities it is important that councilmembers not disrupt city staff while they are in meetings, on the telephone or engrossed in performing their job functions in order to have their individual needs met. Respect city staff’s time. Given ongoing fiscal constraints and limited staff and council time,  individual councilmembers should minimize memos and maximize face-to-face interaction with other councilmembers.”
The code further requires that members of the council hold their tongues and speak no evil of anyone affiliated with the city they were elected by the residents of to serve as a watchdog over.
“Never publicly criticize an individual employee,” the code states. “Council should never express concerns about the performance of a city employee in public, to the employee directly, or to the employee’s manager. Comments about staff performance should only be made to the city manager through private correspondence or conversation.”
Moreover, the code instructs members of the council to censor themselves if they are seized by the urge to publicly indicate their observance of any shortcomings in the performance of city employees individually or collectively. Further, council members should not trust themselves to articulate their observations about the function and performance of city employees or City Hall generally, but rather rely on the city manager to put words into their mouths, according to the code, as it is imperative that city officials speak with one voice, irrespective of whether they have differences of opinion with other city officials.
“Check with city staff on correspondence before taking action,” the code of conduct states. “To prevent conflicting statements or duplications, before sending correspondence, councilmembers shall check with staff to see if an official city response has already been sent or is in progress. Typically the mayor, through consultation with staff should respond to communications addressed to the entire council. When it is unclear whether a correspondence is to an individual councilmember or the city council as a whole, councilmembers should consult with the mayor or staff to determine the appropriate response.”
It is imperative that members of the council betray no dissension between them, according to the code of conduct.
“In unofficial settings make no personal comments about other councilmembers,” the code states. “It is acceptable to publicly disagree about an issue, but it is unacceptable to make derogatory comments about other councilmembers, their opinions and actions. Doing so may undermine confidence in and respect for the city council as a body.”
Noting “Councilmembers are frequently contacted by the media for background and quotes,” the code doubles down on making it clear that city officials need to speak with one voice rather than allow the public to glimpse that substantive differences exist on the council “The mayor and city manager shall determine the official spokesperson for the city’s position on high-profile issues,” according to the code. “If an individual councilmember is contacted by the media, the councilmember should refer the media to the mayor or the city manager and refrain from making statements that would give the appearance of representing the city’s position. The city manager or his/her designee shall be the city’s spokesperson on routine media inquiries.”
When the councilmember has a difference with his council colleagues or other city officials with regard to a policy, he or she should not articulate his or her position or in any way contradict the official position or contradict the official line, even if the reporter or media representative agrees to not quote his or her interlocutor, the code states.
According to the code, “The best advice for dealing with the media is to never go ‘off the record.’”
And councilmembers should avoid making blanket denials in conversations with the media or coming across as if they have something to hide, according to the document. “Never say ‘No comment,’” the code says.
The code is not merely a guideline that the council is supposed to voluntarily adhere to. The restrictions in the code carry teeth. “City council members who intentionally and repeatedly do not follow proper conduct as outlined in this code of conduct may be reprimanded or formally censured by the council, lose seniority or committee assignments, both within the city or with intergovernmental agencies, or have official travel restricted,” the code states with regard to enforceability.
Councilman Greg Bogh said imposing a code of conduct on the council not only hampered communication but thwarted the political process. “I think the conduct of elected officials is regulated by the voters,” Bogh said, and he aired the belief that if the voters find themselves “displeased with the conduct of elected officials, then they should vote them out of office.”
Duncan said the code of conduct was part of the “overreaction” and “overkill” to his social media posts and utterances. He called the code “ridiculous,” saying, “Now, I can’t exercise my rights as a citizen.” Bogh and Duncan were in the minority, however, as councilmembers Denise Allen, David Avila and Dick Riddell voted in favor of adopting the code, after tweaking it to allow councilmembers to voice opinions in public settings other than ones associated with the city.
Councilwoman Allen, upon whose suggestion in April a code was fleshed out and brought back to the council, said the code qualified as “a good guiding document” that allows the council members “to understand their roles and relationships.”
-Mark Gutglueck