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Analysis

City Hall fights transparency in manager search

Public records aren't so public

The search for a new Tucson city manager is proceeding apace, with the City Council having winnowed down a list of candidates. Who those potential municipal CEOs are, we don't know. And despite that list being a public record subject to mandatory disclosure, no one at the city will tell us — or you.

They won't outright say "no" but are engaged in bureaucratic stalling tactics. Basically, the message to all of us is NOYB until next week. Those in the know don't think you need to know who might be hired for the city's top unelected post.

Under Arizona law, the government must provide public records on request. And the state Supreme Court ruled in 1991, in a similar case involving Arizona State University refusing to turn over the list of candidates in a search for a new school president, that such lists are public record.

The justices found that lists of candidates who have expressed an interest in a high-profile public position, and who know they are under consideration, should be disclosed.

The law is clear. But Tucson city officials don't seem too clear on their responsibility to be transparent. They've not provided the information on candidates we asked for in two separate public records requests — the list of candidates, their resumes, and communications between the city and potential hires. AZPM reporter Andrea Kelly, the host of Metro Week, also asked for that information. The city didn't provide it. Arizona Daily Star reporter Becky Pallack asked for it twice as well. The city didn't provide it. Certainly other reporters did as well, and it wasn't turned over.

Why not?

City officials will argue that when conducting a search for a top-level position, they need to keep the names of applicants under wraps so that the best candidates can express interest and not put their current jobs in jeopardy.

That's understandable, and the law allows for that. Not many people will try to learn more to gauge their interest in moving to Tucson if they might end up moving to Veinte de Agosto Park because their boss learned they were looking around. So, to facilitate that process and delay public disclosure, Tucson hired a national search firm to vet applicants last year.

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But that consultant narrowed the list down to about 40 candidates, a list that was provided to the City Council. During an executive session (meaning, out of public view), that list was cut to fewer than 10 candidates two weeks ago.

Both of those lists, of candidates who know they are being considered and who are still actively seeking the job after being reviewed by the outside search consultant, should be released.

In the ASU case, Board of Regents v Phoenix Newspapers, the state Supreme Court held that "candidates who actively seek a job run the risk of their desire becoming public knowledge. Because they are candidates, they must expect that the public will, and should, know they are being considered. The public's legitimate interest in knowing which candidates are being considered for the job therefore outweighs the 'countervailing interests of confidentiality, privacy [and] the best interests of the state....'"

Instead, the city wants to wait until next week, when the City Council will interview candidates Tuesday during another closed-door executive session (in a meeting that has yet to be scheduled under open meeting law requirements), and then pick three or so candidates to publicly announce.

Only then will the public be able to check out the background of those under consideration, and the potential manager hires will be appear at a public forum.

Next Wednesday, the citizens committee set up to facilitate public input on the process will interview the candidates to lead the city bureaucracy, during an open meeting that won't allow for questions from the public.

So what's the problem?, you may be asking.

Beyond the principle that the public's business should be conducted as much as possible in the view of the public — a precept embodied in Arizona's public records and open meeting laws — there's a practical matter.

Two years ago, a national consultant hired to vet candidates for Pima Community College chancellor so botched the search that an entirely new one had to be conducted.

One of two announced finalists for that post withdrew her name from consideration after PCC officials learned of fudged enrollment and $5.2 million in overbilling during her tenure at a former college. It took enterprising reporters about 30 seconds of Googling to discover that, but the professional consultant and college staff didn't.

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Simply put, scrutiny by the public and press would make reviewing candidates for Tucson's top unelected job more effective. Rather than dodging public input, city leaders should embrace it.

As to why they're avoiding disclosure at this point, you'll have to try asking them yourself. None of Tucson's top leaders responded to our second written public records request — Mayor Jonathan Rothschild, Councilmembers Regina Romero, Paul Cunningham, Karin Uhlich, Shirley Scott, Richard Fimbres and Steve Kozachik all received it, along with interim manager Martha Durkin, city attorney Mike Rankin, and HR director Curry Hale. Earlier, Roger Randolph, the city clerk, said that his office "is not the custodian of the records you requested" and said he had forwarded our initial request to Rankin.

Thursday, in the only response from the city after asking for the information again, spokeswoman Lane Mandle said, "We'll process this request too."

The city "will be releasing the names of the final candidates as soon as they are determined," she said in an email.

Local governments have often relied on a tortured reading of the law, maintaining that only the names of "finalists" must be released, and only after they have been interviewed.

The carefully crafted city plan for determining who will be hired as a city manager doesn't have the Council interviewing those who've applied until the last minute, but the fact is they have already been interviewed.

On Aug. 5, the Council voted unanimously to approve a process laid out by the search consultant, Bob Murray & Associates of Roseville, Calif. That process requires the recruiter to "screen resumes, conduct preliminary interviews, complete public records searches for recommended candidates," and then to recommend candidates to the city for consideration.

According to the courts, once a "prospect" has become a "candidate," then public disclosure is mandatory if a request is made.

So, not only are the names of the winnowed list of 5-7 or 10 candidates picked by the Council for interviews subject to disclosure, the entire list of 40-some names recommended by the consultant should be made public.

Same old song and dance

Insiders at City Hall are embarrassed by the handling of the city manager candidate lists —some of them angry enough to "leak it if I had it."

Tucson's approach to providing the public the information it deserves in this case isn't new. There's a disturbing pattern throughout state and local of controlling and limiting the access of citizens and the press — your access — to public documents and meetings.

In the Legislature, a bill was filed this year to allow political candidates to keep their home addresses out of the public record. Another would keep the names of police officers involved in fatal shootings secret for 90 days.

Another bill, shelved last week, would have allowed public agencies to deny "unduly burdensome" requests for information. Yet another that died in committee would have "completely gutted" open meeting laws by allowing elected officials to talk about any and all topics outside of public scrutiny.

Thursday, as noted by Star columnist Tim Steller on Twitter, those few attending a Citizens' Water Advisory Committee were required to sign in and show ID to enter the conference room on the third floor of Tucson Water headquarters. That's an explicit violation of the state attorney general's guidelines on open meetings, which prohibit requiring people to sign in before they are permitted to attend a meeting.

Other practices make records difficult to obtain, even if they aren't outright denied.

The Pinal County Sheriff's Office recently stalled for months before providing records to TucsonSentinel.com. Many other public agencies have conducted similar foot-dragging campaigns. And Pima County Administrator Chuck Huckelberry recently instituted a new records regime that attempts to compel all requests to be made in writing through a county website, and requires that he receive a copy of all requests.

As noted, when Pima Community College searched for a chancellor two years ago, they kept details from the public secret until the last minute — twice. When the Tucson Unified School District hired a superintendent, they similarly withheld the names of candidates and ultimately only announced a single finalist for the job before hiring him.

In another recent denial in a river of them from many agencies, PCC officials recently point-blank refused to provide a copy of a report on their probation, sent to them by the Higher Learning Commission. They claimed it was a "draft" and the accreditors at HLC had asked them not to release it.

While acknowledging that the HLC's request had just as much legal standing as one from a Girl Scout troop might, and that there was no basis in Arizona law to refuse disclosure, Pima officials knew they could wait it out. The final report was released a week later, making any potential suit irrelevant to reporting and essentially moot.

Transparency & time

Friday, Mayor Jonathan Rothschild is due to deliver his annual State of the City speech. No doubt he'll update us on what he calls Tucson's Five T's – technology, trade, transportation, tourism and teaching. He should add one to the list: transparency.

Some city lawyers won't be attending the lunch address. They're due in court Friday afternoon, defending the city's actions in another public records case, involving requests for information about the handling of Grand Canyon University's former potential interest in opening a Tucson campus.

The city's fighting to avoid paying thousands of dollars in attorney's fees in that case, in which a judge ruled that "clear and convincing evidence exists that (City of Tucson) engaged in 'misconduct'" when city lawyers claimed in a court filing that they had "fully responded" to a records request made two years ago.

And there's the rub. Officials know they can stall and delay and shuffle their feet and forward requests around their offices at their leisure. They skirt the spirit of the law while jumping through hoops in a show of meeting its letter.

By the time any news outlet could go to court and demonstrate to a judge how improper their behavior has been, city officials will have picked our next city manager anyway.

If it were done when 'tis done, then 'twere well
It were done quickly

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have your say   

Latest comments on this storyRead all 5 »

5
10 comments
Mar 11, 2015, 5:34 pm
-0 +0

“it is only because of their stupidity that they are able to be so sure of themselves.”

The Trial — Franz Kafka,

4
14 comments
Mar 8, 2015, 8:06 pm
-0 +0

Sue for lost revenue. It’ll set a dangerous precedent, and have far reaching effects in anti-chambers.
They have to answer it, and a judge gets to decide. Sue in small claims.

3
1768 comments
Mar 6, 2015, 2:30 pm
-0 +0

Commenting about the piece itself…Dylan, I sincerely state that this piece may very well be your finest work, or at least the best I’ve ever read. I’m not just talking about spelling and grammar, I’m talking content. Reading the piece I felt the justified frustration your were feeling.

You cited many examples that are well known to the vast minority of people who live in this community that actually pays even a little attention to how government is run. Your piece was articulate, thorough but not so much so that the reader loses interest, and most of all…it is correct.

It is a crying shame that those who need to read this piece the most will never see it, either out of fear of having their feelings hurt, or being too lazy to read anything beyond a 140-character tweet.

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ARS 39-121. Inspection of public records: Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.

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So, who's on the list?

Your guess is as good as mine. One person we know isn't on any of the lists floating around City Hall is Durkin, the interim manager. When the Council laid out its process for choosing a new manager they exempted the interim city CEO from consideration, saying it would encourage a wider pool of quality candidates to apply if it wasn't thought that someone had the inside track.

The last time the city hired a new city manager, in May 2012, a national search was conducted but the job went to interim manager Richard Miranda, who had moved up in the municipal hierarchy to take the place of fired former manager Mike Letcher the previous September. Miranda announced his retirement last July.

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