My Boss Says So
Dear Management Doctor:
I am the Planning Director for a fast growing county. We recently completed a staff report for a controversial project where we recommended denial of the project. The project went before our Development Review Committee consisting of the County Administrator, County Attorney, and two others. They asked that I revise the planning staff report to say we recommend approval of the project. I feel caught between a rock and a hard place. What should I do?
This same issue often comes up when the Planning Commission adopts a different position from the staff. Normally, you have an obligation to write the findings and recommendations of the Planning Commission, even if you don't agree with them. I don't know the nature of your Development Review Committee, but the same could apply to them.
However, this is different than changing the Planning Department's staff report. If you obtain new information at either the Planning Commission or Development Review Committee that changes your mind, then go ahead and change your report. However, lacking that you have an ethical obligation to keep your report the way you wrote it.
What the elected officials or Planning Commission want to do with your report is another matter. In the more progressive communities, your report would simply be attached to the other report. Chances are, the elected officials already know about the conflict and can also see it in the minutes of the other body. The bigger issue may be the press and the public. This is likely a public document and you then have an obligation to release it if someone asks for it. However, I wouldn't be out in the community pushing your position over that of the other bodies, particularly if the County Administrator and the County Attorney are involved.
Each community is different so you need to decide a strategy based on the local processes, while still following your own professionalism and ethics. If all your community wants is a rubber stamp, suggest that they visit Stables or Office Depot and find yourself a better place to work.
Once in my career, I found that the local ordinances allowed the Planning Director to appeal the Planning Commission to the elected officials. The first time I did it all H&%* broke loose. But, eventually, the elected officials wanted to know when the Planning Commission and staff had a different opinion.
Good luck and keep that resume sharpened up.
The Management Doctor
We recently completed a staff report for a controversial project where we recommended denial of the project. The project went before our Development Review Committee consisting of the County Administrator, County Attorney, and two others. They asked that I revise the planning staff report to say we recommend approval of the project.
First of all, the report should start with facts. Then it should contain an analysis of the application of those facts to the application at hand. Next, depending on the jurisdiction, the report will contain proposed findings, conclusions, and/or recommendations. At each step in the process, the reviewing body may reach different conclusions from the same facts. However, the staff report is still the staff report. The report just grows with each step, adding interpretations, conclusions, or recommendations.
How could it "serve the public interest" to change the report? Did the "timely accurate information" required by the Code of Ethics change when read by the DRC? How can staff exercise "independent professional judgement" if the report reflects the judgement of others? In the above scenario, the staff does not recommend approval; the DRC recommends approval. This is what the report should state. Hopefully the DRC also can supports its recommendation with analysis, findings, conclusions.
V. Gail Easley, FAICP
My position on whether the Planning Commission's recommendation should be the one forwarded to Council, I believe both the Commission and staff's position need to be sent forward. Allow me to relay a personal experience on the same issue.
In 1998, after a long City Council meeting involving six controversial zoning cases, the Mayor was visibly upset. Immediately following the Council hearing, the Mayor confronted me in a private meeting, with the City Manager present, to express his concerns that the staff recommendations did not support the Planning Commission's position and wanted to know why. As Acting Director of Planning, I reminded the Mayor I worked for the City Manager and he did not pay me to "rubber stamp" the Commission's recommendations. I was hired to provide the City Manager and City Council my best professional judgment recommendation based on the adopted comprehensive plan, policies on development issues, past Council decisions, and land use recommendations based on my training and expertise. Sometimes my recommendations required amending the comprehensive plan and/or policies. I nervously explained that if he wanted someone to rubber stamp the Commissions' recommendation, then they needed to find another Planning Director. The City Manager said nothing while I was present. Early the next morning, the City Manager called me into his office and made one statement, "If you had said anything else to the Mayor, I would have fired you."
Two weeks later I was appointed director.
I recall being really scared but I stuck to my guns. After 35 years with this City and 41 years in the planning field, I retired as the Director of Planning and Acting Director of Development Services.
Michael N. Gunning, AICP (retired)
Good dialogue! Our appointed planning boards are final decision-making bodies except for a few instances. The recommendation to them is included in any appeal of their decision to the elected body even if the appointed body disagreed with the staff's recommendation. The discussion on findings is vital, if they don't exist in policy or code, then a disservice to all of the involved bodies is perpetuated.
Michael A. Harper, FAICP
I read the article, "My Boss Says So," and I was, in a word, amused. When the responses were published, I just had to write you when I read that you didn't agree with all of what the respondents wrote. I agree with you. The original request left out many details, so I broadened the topic in my response just a bit.
I learned long ago that different people will look at the same facts and formulate different opinions that oftentimes support completely divergent recommendations or actions. I believe planners need to learn this early in their careers otherwise they get into trouble.
I was taught that part of staff's job is to look at the facts and offer a recommendation for those designated to decide. Some facts favor a project or recommendation and some do not. All relevant facts and information needs to be disclosed to decision makers so they can make a well informed decision. Staff should offer a recommendation for action otherwise decision makers are not given the full benefit of experience. I'm stating the obvious, but I am finding that the younger generation of planners is not always taught these lessons.
When a decision making body chooses a different outcome than recommended, they are simply weighing the same information in different ways. That's OK and no practicing planner should be surprised by this.
Other facts may have come to light between the publication of the staff report and the time to vote that might support an alternative action. That is what hearings are for as staff rarely knows everything about a project or initiative and we might not be able to predict the true impact of a project on the City.
I have never had a decision maker direct a change in a recommendation and I can only think of one circumstance where they might; when a recommendation is not supported by the facts. The Planning Director's competence can be examined later (hopefully in private) if this is truly the case. Even in this case, facts are likely in evidence to support a different conclusion and the decision maker needs to identify them especially when the facts are not in the report or other information presented. Public testimony can be a source as we all know. If the basis of a decision is not identified in the record to support an action, you have a problem on your hands, unless it is legislative matter. Even then, findings are a good idea.
Asking whether staff would change a recommendation based upon new information is a fair question. Asking staff to change a reasonable recommendation that is supported by the facts in the absence of other information after the publication of the staff report feels like a decision maker looking for a staff "shield" so they can make an unpopular decision.
Where I come from, staff speaks with one voice. Dissenting opinions at the staff level are "smoothed out" by the Director before the report is published and personalities are not disclosed. Once the report is published, we all sing the chorus in harmony. Dissenting opinions that are reasonably supported show that information both in favor and against a recommendation are evident. When all the information is presented, decision makers have room to "operate." I recommend that you avoid "boxing" the decision maker into a particular action as they will get agitated when they need to take a different action. Constituents could perceive them to be unreasonable or capricious when there might be a rational reason to act contrary to a recommendation. Decision makers often times do not want to work too hard to identify the facts to support their decisions, so do yourself a favor and give decision makers room to operate within the confines of the law. If you don't, you will not be long for the job of Planning Director.
When a Planning Commission takes an action that is contrary to staff's recommendation, the Council sees it as the report to the commission and their action is part of the record. You can't re-write it as that is like "un-ringing" the bell that was just sounded. When preparing that report to the Council, the recommendation should be to take the Planning Commission's recommendation. If it is not, you better have a really, really good reason why a different course should be taken because if you don't, you are saying that the planner knows best and the Planning Commission doesn't.
The Planning Director has a boss (you insert the title that best suites you). In my book, a wise City Manager does not meddle in the affairs of a Planning Director's recommendation. They are oftentimes invaluable in identifying other relevant facts, information, or priorities that motivate and guide decision makers, staff, and the public. In no way is this unethical activity, provided it is done within confines of applicable laws. A wise Planning Director seeks advice from his boss when controversy is anticipated before the report is published. The City Manager will thank you for looking out for his backside.
My advice to the original letter writer is, buck up. If you made the mistake of "boxing in" your decision maker and you don't plan to open a door for them to step out of the box (identify reasonable facts or information to support an alternative), check that 401K plan. Don't lie down in front of the train unless there is something illegal going on. If you didn't "box in" your decision maker, relax as there is light at the end of the tunnel and it is not a train.
I could go on for pages, but I have to stop my rant somewhere. Keep up the good work, Management Doctor.
A loyal follower,
This Management Doctor elicited two interesting responses that are worth your reading along with my response. They are shown below. I partially agree and partially disagree with the responses. This is an interesting issue and I appreciate the responses. I'd like to encourage any planners who think about our ethics to also reply using the ethics perspective.
If the planner is called to testify in court, he or she will need to raise their right hand and swear to give their honest opinion. This may well conflict with that of their boss.
The Management Doctor
I would need some more information, but I'm not sure that I agree with you on this one. Isn't the County Administrator charged with setting policy direction for the entire organization, including the Planning Department? I don't see this as any different from an Assistant Planner wanting to recommend denial but being overruled by the Director. I do that to my staff occasionally and think I should have the ability to do so.
Two thoughts - if the staff report is good, the analysis doesn't change with the recommendation. The report should be upfront with the advantages and disadvantages of either course of action, so that the Commission/Council/Board can make an informed decision.
My arrangement with my staff is that they still have to do the work, and write the report; even if they disagree with the recommendation. They don't have to put their name on it though. My recommendation; I'll sign the report and make the presentation. That practice seems to work out fairly well.
This all assumes that the recommended action isn't illegal or immoral - that would be different, of course.
There is another perspective on this - because information is missing. Is the Development Review Board an actual decision-making group or a recommending body? If the normal structure is followed, the Director's staff report and back-up goes to the DRB for its recommendation. Then the report with the DRB's recommendation goes to the Planning Commission. The report that goes to the Commission should have a section in it called "DRB Comments." In my experience, when there was in-house staff disagreement, the disagreement would be neutrally presented in this section of the report. A staff report should update at each level of recommendation, decision-making, or appeal.
One question that always arises is what happens when the PC disregards the staff recommendation? Let us pros not forget that staff is making a "recommendation," not a decision. One reason staff's recommendation should include substantiated findings is so the Commission cannot merely say, "I don't like the staff report, therefore we're going to approve this project." They would have to select specific substantiated data in the public record to, in effect, show that they can make findings that "trump" or "overturn" the staff recommendation. If the Commission cannot find the facts in the public record, then the County's attorney should be telling them that their action may be arbitrary and capricious.
If the Commission does have findings, and the matter goes on to the elected officials, which staff report goes? In my opinion, staff must revise its report to reflect the recommendation of the Planning Commission. Once the Commission has made its recommendation, staff's position is subservient. There is no reason why the Commission report to the Board can't include statements summarizing the differences in opinion between staff and Commission, but it should not include the staff's pre-Commission report.
The reason for re-writing the report is that if this project were to end up in litigation, Planning Staff has created a muddy administrative record. Staff's original report is part of the administrative record, but if it were part of the final report to the elected officials, during litigation, the staff report could be used against the jurisdiction. Whether or not staff agrees with a decision, it is our ethical role to ensure that final action is legally defensible. If the elected officials want to approve something that is illegal, immoral, or carcinogenic, then staff needs to put that information on the record. If it is a disagreement of opinion or interpretation, the elected officials win. In the end, we work to make their decisions defensible.
One tidbit missing from the original letter is whether the DRB asked the report to be changed because the County Manager or Counsel found factual errors or found that the director based his recommendation on interpretation of issues, and the DRB has a different interpretation. If the disagreement is over interpretation (or opinion), the County management probably has the right to ask for a change in the report.
If it's a breach of AICP or other professional ethics, there are two options. One is to rewrite the report and have the chair of the DRB sign it, and not list the director as the author; the other is to send a memo to the County Attorney and state the reasons for disagreement and ask that this memo be submitted to the Board through the attorney for confidentiality. To put a memo like this on the public record would be an unethical act, because it could undermine the jurisdiction's defense if there were litigation.
If it's a really big deal, it's time to find another job.
Lots of good comments regarding this article.
I would like to add a more few points from my years in the field. I have always thought that it is Planning's job to give the decision makers the best reports and recommendations that we can based on solid factual information, based on the law and good reasoning, clearly based on our professional experience. We also help them when they disagree with us.
Staff would typically be more conservative in reading the General Plan, Zoning Code, and other matters. Decision makers have a bit more latitude such as an agency's past practice where economic development objectives might weigh more heavily than some other factors. A Commission might agree with staff but a City Council or Board might diverge based on broader information or objectives.
At the end of the day, my Department always gives decision makers some draft findings if they choose to decide other than the staff recommendation. Most of the time they follow staff's advice; but not always. In those latter cases, if possible you want to make sure the findings and decisions made are as reasoned (and as legally defensible) as the original staff recommendations.
Another guide we follow (if the decision makers are going to be significantly at odds with staff and want additional information) is to recommend that they continue a matter for a couple weeks so that staff can come back with more detailed findings to guide their decision.
On rare occasions, decision makers may go too far. Planning and/or Legal Counsel can then caution them that they may be opening up the agency for significant liability but you hope you do not have to play that card very often or advertise that to the legal community. Where that level starts to occur, a retreat might be in order to better discuss these issues and options, such as refining a local ordinance, to better match community goals. Hopefully it has also already been covered as part of their initial initiation or as refreshers at conferences.