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The City Hall Emails: Part Four

This is part four of The River City News's exclusive series, "The City Hall Emails", in which it is hoped that more light is shed upon why some members of the current Covington City Commission seem incapable of engaging each other and city administrators with respect and professionalism.

Click here for Part One

Click here for Part Two

Click here for Part Three

Written by Michael Monks, editor & publisher of The River City News

In this final installment of The City Hall Emails, I wanted to let you know what it was that I was hoping to find within the hundreds of emails that were obtained by The River City News through the Kentucky Open Records Act.

I submitted my request on May 30. On June 18, more than three hundred electronic messages were given to me by the Office of the City Solicitor at Covington City Hall.

The letter from the City that let me know that my request was ready included this information: "The City of Covington is providing you with three hundred thirty-nine email messages relevant to your request. Please note that Commissioner Steve Frank does not maintain a City email account; however, he reports that he has no emails responsive to your request."

It goes on to read, "One hundred fifty-nine email message relevant to your request have been withheld as exempt from the Kentucky Open Records Act because they consist of one or more of the following: preliminary drafts, notes, or correspondence with private individuals, which are exempt...; preliminary recommendations and preliminary memoranda in which opinions are expressed or policies forumlated or recommended, which are exempt from disclosure...; and public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within, or expanding within the Commonwealth, which are exempt from disclosures..."

"The excluded documents include emails in which City staff and officials discuss strategies and approaches, solicit or consider options, or recommend a possible course of action. The excluded documents also include emails related to the possible relocation of businesses where no public disclosure has yet been made."

Another eighty-seven emails were withheld because they included advice from the City's legal staff.

After months of watching the tension grow at public city commission meetings, I knew there was more than what was on the surface. For some reason, however, some elected officials are not as forthcoming with this publication as are others. 

Most everyone else involved at City Hall will at least take my questions and return my calls, even if they don't have answers at the time or if the answers cannot be released publicly.

Still, it was easy to see that there was some serious bickering going on behind the scenes, and once we learned that a verbal brawl had erupted inside City Hall between commissioners and at least one administrator, I wanted more answers as to what was causing this.

There is simply too much at stake in Covington for bad behavior by city officials. But who was really behaving badly? That's what I wanted to know.

When I submitted my request, I asked for all email correspondences involving the city commission and city administrators as they relate to the subject of staff meetings, since it was a staff meeting that a city commissioner was barred from attending that initiated the infamous shouting match. I also requested all emails that reference the Kentucky League of Cities to get a better handle on when discussion began to bring in outside help to increase civility among the city officials. 

I requested emails about requests city commissioners were making of the city manager. 

I wanted emails that referenced the so-called "Bowman Ordinance" as it relates to elected officials meeting with city staff without the city manager.

I want to emphasize that this open records request was submitted before the revelations involving Commissioner Michelle Williams past run-ins with the law. This series had nothing to do with that. But there were clear and strong personality conflicts emerging during city commission meetings and even though I attend every single one of them, I just couldn't understand why.

Personally, I now feel like I have more clarity (though, not full clarity) on the issues. I hope that you do, too. My intention was to release the electronic conversations and let the players involved speak for themselves. This series mostly wrote itself. I was just there to provide context. 

I can't determine, as an impartial observer, if the bickering is petty or justified. In any case, it is certainly abundant and while government in conflict sells more papers, it is a stark contrast from the more orderly meetings we experienced last year at City Hall when the city was stabilized and poised for its possible future.

That possible future is no longer possible. It's actually happening, the early parts of it anyway. This city is about to be transformed and you can count me among those filled with excitement and pride.

It is my hope that any personality conflicts among city leaders are addressed with sensitivity and maturity and with seriousness and with recognition of what's at stake. There are too many of us watching now and too many of us that refuse to allow anyone to turn back the progress we've made and the strides we are making.

This is our city and it's not going backwards anymore.

I'm very interested in hearing about how you feel about this series and the current political climate in the city. Weigh in at The River City News Facebook page, Twitter feed, or email.

In conclusion...

As the city commission and city administrators struggled with whether the city manager is permitted to hold a staff meeting without the presence of an elected official at his discretion, a letter was written by the city solicitor to Phillip Sparkes, director of the Chase Local Government Law Center at Northern Kentucky University. As an expert in municipal law, Sparks' opinion on the matter was sought. Below is Sparkes' response in full, a letter obtained by RCN independently of the Kentucky Open Records Act request.

The letter from Professor Sparkes:

You asked my opinion, as someone who studies and teaches local government law, about whether a city manager in a Kentucky city of the second class with a city manager form of government can conduct a meeting with staff and exclude an elected city official from the meeting. I think that the answer is "yes" if exclusion is consistent 'With the city manager's statutory duty to enforce the city manager plan of government. 
A Kentucky city falls into one of six classes and operates under one of three basic organizational plans. A city's class determines the scope of its powers, and a city's organizational plan determines the distribution of its powers. All cities of the same class have the same powers regardless of which plan of government they choose, and all cities with the same plan of government distribute city powers the same way regardless of the class to which they belong. Thus, for the discussion that follows the crucial matter is the plan of government, not the class of the city.  
KRS 83A.1S0 lays out the city manager plan. It provides for an elected mayor and four elected city commissioners, KRS 83A.150(2), who together comprise the board of commissioners, the governing body of the city. KRS 83A.150(3) vests in the board of commissioners all legislative and executive authority of the city." Later subsections charge the board of commissioners to create the office of city manager, KRS 83A.150(7), and appoint a qualified individual to the office, KRS 83A.150(8). 
Subsection 9 declares that the city manager is the city's "chief administrative officer and exercises those executive powers and duties delegated to him by ordinance and statute." 
Not surprisingly, the statute does not answer the narrow question you pose. The question presents one aspect of the larger question of the allocation of authority among the board of commissionersits individual members, and the city manager. This larger question concerns how the various provisions of KRS 83A.150, especially subsections 3 and 9, fit together. To understand how the pieces relate some background is helpful
As already mentioned, a Kentucky city may operate under any of three organizational plans: the mayor-council plan, KRS 83A.130; the commission plan, KRS 83A.140; and the city manager plan, KRS 83A.150. City governments across the United States generally fit into these same basic plans.
The tendency is to regard the mayor-council plan as the "traditional" form of city government. While it is the most common form in Kentucky, it is only the second most common form nationwide. Its distinctive feature is the separation of executive and legislative powers between a mayor and a city council, respectively. See, e.g., KRS 83A.130(3) and (11). Accordingly, the mayor, as the chief executive, attends to the administrative functions of the city (sometimes with the assistance of a city administrative officer as authorized by KRS 83A.090). The city council is a policy-making body with no administrative responsibilities. 
In Kentucky and elsewhere, the commission plan is the least popular form. The distinctive feature of the commission plan is the unification of the legislative and administrative functions of city government. In Kentucky, a city commission possesses "all legislative, executive, and administrative authority of the city," KRS 83A.140(2), and each commission member is responsible to superintend one or more departments of city government, KRS 83A.140(6). Commission members perform particularized administrative duties corresponding to their respective departmental portfolios. One criticism of the commission plan is that it results in the fragmentation of city administration. To compensate for this, KRS 83A.090 allows the delegation of commissioners' administrative duties to a city administrative officer.
The city manager plan is the second most popular form of city government in Kentucky and the most popular form nationwide. The city manager plan is a hybrid of the mayor-council and commission plans. See, e.g., Victor G. DeSantis and Tan Renner, City Government Structures: An Attempt at Clarification, 34 State and Local Government Review 95 (2002). In many respects, it resembles the commission plan with a city administrative officer, but it differs in that under the city manager plan the mayor and city commissioners have no administrative responsibilities. In one respect, however, the board of commissioners in a city manager plan more closely resembles a city council in the mayor-council plan; it is a policy making body. To avoid the fragmentation problem inherent in the commission form, the city manager form gives responsibility for administration to a city manager appointed by and subject to removal by the board of commissioners. The popularity of the city manager plan is attributable to the professionalization of the role of city manager. One purpose of the previously referenced KRS 83A.090 is to let all Kentucky cities avail themselves of similar expertise
Returning now to the fit among the parts of KRS 83A.150, it should be evident that KRS 83A.1S0(3) and 83A.150(9) go to the essence of the city manager plan. Reflecting popular democratic values, KRS 83A.1S0(3) allocates to the mayor and city commissioners the responsibilities for which they are electorally accountable. Reflecting values of administrative neutrality and efficiency, KRS 83A.150(9), together with 83A.1S0(7), to the city manager responsibility for the day-to-day operation of the city. Notably, KRS 83A.150(9) charges the city manager to police the boundary: "[The city manager] shall enforce the city manager pIan, city ordinances and all applicable statutes." This language recognizes that it is the city manager who has, as KRS 83A.150(7) puts it, the "professional training or administrative qualifications with special reference to actual experience in or knowledge of accepted practice regarding duties of the office." This preference for professionals and technical experts is a hallmark of the city manager plan of 
A fair reading then of KRS 83A.150(3) and (9) is that they separate the administrative functions performed by the city manager from the policy making functions performed by the board of commissioners. This is consistent with the history and fundamental design of the city manager plan. Further, the provisions in KRS 83A.150(8) for appointment and removal of the city manager - indefinite term, statement of reasons for removal, and a right to a hearing - reinforce the notion that, with respect to matters charged upon the office by statute and ordinance, the city manager enjoys a degree of autonomy from the board of commissioners. The provisions take on added significance when one compares 83A.150(8) to 83A.090, which lacks similar protection for city administrative officers. This is evidence that, despite their similar treatment in 83A.080(2) for example, the offices of city manager and city administrator are not equivalent. As befits the city manager plan, the term city manager implies more discretion and independent authority than does the term city administrative officer. 
Additional reinforcement comes from a comparison of KRS 83A.150 with 83A.140, which describes the commission plan. KRS 83A.140 and 83A.150 are statutes in pari materia and must be construed in 
reference to each other. When in KRS 83A.140(3) the statute states that "[all] legislative, executive and administrative authority of the city shall be vested in and exercised by the commission," and when in KRS 83A.150(6) the statute directs the commission to "designate the commission member to have superintendence over each department," it describes the essence of the commission form. KRS 
83A.150 confers no comparable authority on the board of commissioners, on the mayor, or on an individual city commissioner in the city manager plan. As discussed above, the absence of such authority is inherent in the city manager plan. 
This is not to say that the city manager is independent of the board of commissioners. As previously noted, KRS 82A.150(8) expressly gives to the board the power to appoint and to remove the city manager. However, an examination of the responsibilities charged upon the city manager in KRS 83A.150(7) reflects that the board's supervision of the city manager is general, not direct. Again, this is consistent with the nature of the city manager plan. Prof. Reynolds, in his treatise on local government law, describes the city manager as "a kind of business executive for the city." Osborne M. Reynolds, Jr., Local Government Law (3d ed.) 66 (1986).
Extending the analogy, the board of commissioners is like a corporate board of directors; it sets overall policy but does not participate in day-to-day decision-making. 
KRS 83A.150(6) does not change this. It provides, "The board may require any city officer or employee to prepare and submit to it sworn statements regarding his performance of his official duties and may otherwise inquire into the conduct of duties of any department, office, or agency of the city."
The language here is similar to that in KRS 83A.140(S), and again the two statutes must be read in reference to each other. In context, the phrase "otherwise inquire into the conduct of duties" cannot be read to give a mayor or a city commissioner in the city manager plan the power of superintendence, including the power to sit in on any meeting he or she might wish to attend. 
Moreover, subsection 6 confers the power to inquire on the board of commissioners collectively, not on the mayor or a city commissioner individually. 
To summarize, the city manager plan of government separates the executive and legislative functions of the city from the administrative functions of the city. The board of commissioners is a policy making body; it and its members have no administrative responsibilities. The city manager is the chief administrative officer and is ultimately accountable to the board of commissioners, but individual members of the board may not interfere with the city manager's exercise of the powers delegated to the office by statute and ordinance. Direct superintendence of the city manager by the mayor or a city commissioner is inconsistent with the city manager plan. Statute confers on the city manager the responsibility to enforce the city manager plan. From this it follows that if the attendance of the mayor, or an individual city commissioner at a meeting convened by the city manager is inconsistent with the city manager plan, the city manager can exclude that official. 
I trust this discussion has been helpful. If the Local Government Law Center can be of further assistance, please do not hesitate to ask.
Yours truly,
Phillip M. Sparks
Photo: RCN open records request reponse from the City of Covington