Legality vs. perception: City, state codes not violated in transit hiring process
OTTUMWA, Feb 09, 2013 (Ottumwa Courier - McClatchy-Tribune Information Services via COMTEX) --
The recent hiring process for a new transit director has raised concerns, but the Iowa League of Cities director says the process appears legal, so any problem that has arisen is in public perception.
Allegations have been tossed around in the past two weeks that the hiring process for the position involved a lack of due process and conflicts of interest since an elected official applied for the job.
Councilman Jeremy Weller publicly announced he had applied for the position a week before the interviews, though in the end he was not hired. Councilman Mitch Niner sat on the committee alongside seven other city officials and transit representatives to interview the final four candidates for the position.
According to Ottumwa City Code, the city attorney may advertise for a vacant department head position and choose applicants to be interviewed.
"The council may review all applications and resumes and sit in on all interviews as observers," according to the code.
City Attorney and Human Resources Manager Joni Keith said she simply wanted participation from the council in the interview process when Niner and Councilman Bob Meyers were invited to sit on the committee.
"Then the other council members [could] ask those that participated how they viewed that candidate," Keith said. "It's like they're serving as a liaison to an advisory board, like all the other boards. We have council members who serve on all those boards who report back."
While there was some question into an elected official applying for a position as a city department head, Weller did nothing illegal when he submitted his application.
"Generally speaking, there is nothing to prohibit an elected city official from applying for a job as a department head," said Alan Kemp, executive director of the Iowa League of Cities. "The key to the whole thing is if they're hired, they would have to quit their position on the council. The provision in state law says as an elected official, you can only be paid for work associated with being an elected official."
According to Iowa Code Section 372.13, "A council member, during the term for which that member is elected, is not eligible for appointment to any city office if the office has been created or the compensation of the office has been increased during the term for which that member is elected."
Keith said the salary of the transit director's position has not been increased.
"There may be other items the council member believes may be an appearance of impropriety if he or she votes on it, but that's personal, it's not a state-mandated conflict of interest," Keith said. "Each council member needs to make up their own mind whether there would be a conflict and whether that council member should or should not vote. As a city attorney, I'm not going to tell a council member, 'That looks funny. Don't vote.' It's got to be his or her decision to make."
But in the end, even though an elected official was not hired for the position, it may have been a good idea for Weller to remove himself from the process completely, Kemp said.
"State law says an elected city official, like a council member, cannot vote on an issue in which they stand to have financial gain," Kemp said. "To vote in favor of or against someone else running for the position doesn't become a conflict from a legal standpoint. It's more of a conflict from perception."
Legally Weller's decision to vote on Dave Silverio's hire was sound, Kemp said, since the hire did not impact Weller financially.
"It just comes back to whether or not someone, particularly the citizenry, might view this as a conflict," Kemp said. "In the end, he voted for the guy anyway. It would be completely different if, for example, he had voted no. That might leave a bad taste in the citizen's mouth."
Kemp said it may have been a good idea for Weller to remove himself completely from the decision-making process once he applied, though legally he was not required to do so unless he would have been hired.
"If I didn't vote it very easily could've caused a bigger mess, because it wouldn't have gotten approved," Weller said of the 3-2 vote approving the new hire. "I thought I was doing the right thing, and I don't hold anything against Mr. Silverio. There was no reason for me to vote 'No' or abstain. I thought I was taking the high road there and putting to rest any rumor that I might be upset or hold a grudge."
A problem in perception -- though not legality -- could also be found with a council member serving on the final interview committee.
"It's more perception than anything," Kemp said. "They can say, well gosh, this council member got two bites of the apple. It's just one of those things, the way things look can poison the process. It may not be illegal, but it just doesn't look right. Elected officials always have to be aware of that because they stand for re-election."
Councilman Bob Meyers said Tuesday night he was concerned the final four candidates were not all awarded due process.
"There have been times when we interviewed people for various positions, but the interview team was clearly defined," Meyers said. "So as we went through that process, then every question was asked to each candidate the same and there was not anybody on there who stated they didn't want somebody to even be interviewed because of personal opinion, in this case on experience."
Meyers felt there were inconsistencies in the interviews for the transit director's position.
"To me, each candidate should be treated the same way, open-mindedly," Meyers said. "And I think that was lacking here."
City Administrator Joe Helfenberger said he's working on drafts of a policy right now to resolve the issue.
"I'm reviewing council rules for Marshalltown and Des Moines right now," he said. "As soon as that's finished, then I'll have something to talk about."
Councilman Brian Morgan said a new policy has to address what happens when an elected city official applies for a position with the city. He said hiring an outside firm to conduct the interviews might be the best choice in this situation.
With Police Chief Jim Clark retiring at the end of the month, Morgan said the recent transit hiring process should serve as a lesson in the upcoming interviews for the chief's position.
"When it's broken down into the top five, we [the council] should be able to observe and ask questions ourselves to each one of the candidates," Morgan said. "I think we should all have that opportunity."
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