At the behest of oft-frustrated Councilwoman Marby Lee, the
Morgan Hill City Council was presented with a quarter-inch-thick
report detailing the 42 incidences of purchases made by staff prior
to council approval in the past five years.
At the behest of oft-frustrated Councilwoman Marby Lee, the Morgan Hill City Council was presented with a quarter-inch-thick report detailing the 42 incidences of purchases made by staff prior to council approval in the past five years.
Lee requested the report after finding that the $33,000 fence upgrade for the new skate park was approved by the council two weeks after the order had been placed.
Generally, any change order of more than $20,000 needs council approval. When Public Works Director Jim Ashcraft approached the council for this approval, he didn’t mention he’d already ordered the new fence.
City Attorney Danny Wan noted that work approved retroactively is done at the contractor or vendor’s risk. If council didn’t approve the order, the contractor wouldn’t get paid.
In a statement read during her regular report June 3, Lee said she was concerned that she was “rubberstamping the wants of staff” and requested the report.
Staff obliged June 17, with a 56-page report of 110 contract change orders or amendments, 42 of which were set in motion prior to council’s consent.
The issue underscores a tension between Lee and her colleagues and city staff. Lee has gone against the council and staff’s recommendations on several topics, often voting against items on principle.
Perhaps most notably, Lee initially cast a “no” vote for Measure G, the failed November measure that would have enacted a utility tax to pay for more police officers. Lee felt that any tax should require a two-thirds majority vote, while the rest of the council agreed that a 50-percent-plus-one victory was more attainable. In the end, nearly two-thirds of Morgan Hill residents voted against the tax. In November, Lee voted against the Redevelopment Agency purchase of three below-market-rate homes from DeNova Homes, saying she didn’t think the city should be in the business of selling homes. The other councilors believed that, considering the city’s affordable housing program, they already were in the business, and felt the move relieved the developer’s burden in a beleaguered market while keeping the city’s state-mandated affordable housing reserves healthy.
More recently, Lee wanted to explore cutting staff hours or pay instead of eliminating vacant police officer positions during the 2009/10 budget talks. The rest of the council was disinterested, saying staff is stretched thin after last year’s layoffs and the labor unions gave up some future raises, too.
On the purchasing issue, her colleagues gave a collective “What’s the big deal?”
Lee says she’s disappointed staff isn’t more up front with them and said she had hoped there would be more concern from her colleagues. Likening the lengthy report to a slap on the wrist from staff, Lee said that for her, there’s certainly a trust issue now.
“It’s being pushed in my face, ‘How dare you (question staff)?'” she said. “If I’m going to be challenged when I ask why you’ve done things, why even have a council? That’s a frustration. I’m not going to be made the bad guy when, if you had just told us in the first place, (it wouldn’t be an issue).”
She said all Ashcraft had to do to avoid her questioning was mention it during his report to the council.
San Jose State University political scientist Larry Gerston said that, in small towns with a part-time council/city manager government such as Morgan Hill’s, “there’s a lot of gray between the black and white.
“Most of the management is done, not in terms of the mayor and city council, but rather with a professional city manager and a professional city staff.
“Usually, the council and manager develop a pattern, an understanding between the elected and the bureaucratic and the gray stuff gets sorted out.”
Gerston suggested that communication might be the real issue at hand here.
“Assuming there’s a set of rules, if you will, under which the manager … has discretion to allow for unusual circumstances, things should go fairly smoothly. But if it appears to be out of step, a member of the elected side may get upset and rein in the staff.”
Mayor Steve Tate and Councilmember Larry Carr, who have served on the council since 1998 and 2000, respectively, were more inclined to trust staffs’ instincts.
“I’ve heard it said that staff would rather ask forgiveness than permission, but my response to that is, that’s fine, as long as they’re not doing things that are (against council’s wishes),” Tate said.
Tate added that there’s nothing wrong with Lee, who was elected to the council in 2006, shedding light on the practice since it makes it “more clear to everybody that it’s happening the way it’s happening.”
Tate pointed out that each of the 42 items, which were mostly changes to legal contracts, were something the council ultimately supported.
“There are no red flags of any kind,” Tate said.
Carr agreed, adding that 50 hours of work was a long time to devote to a subject of concern to just one council member.
“I think there’s a good deal of trust. Senior staff has been in place for a long time. They don’t step outside the bounds,” he said.
“In each of those instances, approvals needed to be done” before the council could meet to keep the city and its projects running smoothly, Carr added. Tate noted that a contract change during the Morgan Hill Library’s construction saved the city six months in construction time.
Wan said that in the future, staff reports will be “explicit” if orders have already been made.
On the length of the report, Tewes said he decided to go back five years rather than one because one year would not be representative. After staff compiled five years’ worth of contract changes, each department had to then determine whether or not the changes were enacted before council approval. And, in the 42 instances that they were, staff had to go back and find out what the circumstances were, he said.
“My responsibility is to report to the council,” Tewes said. “Lee made this request, it was (confirmed) by the rest of the council, and we brought it back in straight order. We were as efficient as possible.”
Of the 42, nine were construction change orders. These alone totaled more than $200,000 in purchases.
