Reflections on the departure of Mark Orme, (Asst.) City Manager 2013-2022

March 26, 2022

As we all know by now, April 1 is the final day of official employment for Mark Orme as City Manager for Chico.  In the very short term, our Chief of Police, Matt Madden will assume the interim role until a replacement can be recruited and hired.  Meanwhile, his #2 in charge, Captain Billy Aldridge, will be acting Chief of Police.  The City will move forward under new leadership, both in the short term and longer term.

I believe there are many aspects of this decision by our city council that we may not know for a while, and some of that is appropriate in light of obligations for confidentiality in personnel matters. But we know quite a bit just by observation.

First, we know that Mark played a key role in the litigation process in the Warren case and was the only other central figure besides Vince Ewing who was intimately involved from beginning to end if we count the end as being yesterday sometime between 2 pm and when the resignation announcement came out sometime just before 6 pm.

Mark was part of the “Brown New Deal,” because he was in the position as the policy was introduced.  Search your memories for what passion or apathy Mark demonstrated at the time.  He could have and should have taken a stand opposing the move.  I recollect that the only staff who spoke up at the time in opposition was police Chief Mike O’Brien, saying it was unenforceable.  Recall that the Chief works for the City Manager as a direct report.  I don’t remember Mark coming to the defense of our Chief’s position, do you?  The bottom line is even if he was just passive about that policy, the impacts on the parks happened under his watch, mostly without a fight.

Those impacts were so severe by November of 2020, those running for the open council seats campaigned on a platform of stopping camping and needle distribution in our parks and swept all 4 of the open seats.  It was a clear voter mandate to clean up the parks and ban needle distribution once and for all.

Come January of 2021, the new council wasted no time clearing the parks, and made it through the entire park system except one, Comanche Creek, despite open defiance by a sitting council member, Scott Huber, and others.  It was the notice served in Comanche creek that precipitated the Warren lawsuit.  Some have referred to that period as a “cattle drive” and some even believe the lawsuit was warranted as a result.

I know personally, there was plenty of information available about how to clear parks without running afoul of Martin, and I know I did my best to make city officials aware of the strategies being employed in other areas, including Santa Cruz, which was at the time also under a court-ordered injunction and shared a body of legal opinions and cases under Martin that were favorable to cities.  That information was never incorporated into the legal strategies or policies.

Vince Ewing made fatal errors from the outset of this case, including an admission that all city land was treated as “parkland,” with no distinction between true parks or waterways and other city lands.  He confessed in court that sleeping outside in the entire city was indeed illegal. Mark and Vince were both aware that outside recommendations had been made which provided a way out of that dilemma. It was ignored.

Many believe this should be laid at the feet of the City Council since they have the final authority over what both the City Attorney and City Manager do.  This is true, they do.  But imagine yourself in their shoes for a moment.

You say, “The policy of the city is to clear the parks.  How do we do that?”  One primary person responsible for dealing with that policy is the City Attorney. He must know and explain the relevant laws.  If he did not have sufficient knowledge of Martin v. Boise to offer that advice, he should have said so.  But he didn’t and so he gave poor advice in my opinion.  How exactly do lay-council members argue the legal fine points with their city attorney?

The City Manager, as CEO of city staff and the direct boss of the Chief of Police, now comes into the picture.  He has the responsibility for the practical impacts of carrying out policy within the limits of the law, as provided by Vince.  No one should be more skeptical of the city attorney than the City Manager, and he is more equipped to test and challenge his advice than any of the council members. He is a professional in municipal management.

Maybe he talks with his Chief of police, or maybe he doesn’t.  Maybe he shares information he receives from the public or private citizens with specific expertise in this area. Maybe the City Attorney and City Manager propose their plan to the council, and they agree because they both already agreed that they wanted to convince the council to go along with their plan.  So the Council hears from these two highly paid experts how they should do it.  The Councils’ policy direction is to clear the parks, they are assured by both Vince and Mark how to legally and effectively carry that policy out. If they trust them or don’t mistrust them enough to oppose them, assuming they knew how, they are going to accept their advice.

What if what they understood was wrong, and what if they assured the council they could pull this off without getting sued?  What if they believed it themselves so confidently that they rejected any contrary information coming from an outside source? The council goes along with their recommendations because they believe they can trust the judgment of their top executive employees.  Was the Chief given direct orders, or was he consulted on the legal and practical issues of enforcement? Perhaps someday we will learn the answers.

When the outcomes they were told would be achieved turn out bad, the council can only assume that 1) they got bad advice; or 2) those implementing the plan are incompetent, or both 1&2.

If it happens once, maybe that’s an anomaly. But how many such occurrences amount to enough for the council to say: “Wait a minute. What you told me would happen and what happened don’t match up.  Something is seriously wrong here.”  When do you reach the point as a council member, when you realize there is a series of failures that form a pattern?  When do you finally declare “Enough is enough! I no longer have confidence in my City Manager or City Attorney. We need to make some changes in our leadership.”

Would the failure of the “Airport Shelter” be enough? Would the Preliminary Injunction be enough? Would the shaky settlement agreement be enough?  Would the chaotic implementation of the pallet shelter project be enough?

Some would say that is more on the City Attorney than the City Manager, and that may be true.  But the City Manager is not completely absolved of the City Attorney’s failures, nor can he be completely innocent when saying “The council told me to do it.”  I can hear my dad: “If someone tells you to jump off a cliff, you gonna do it?” 

Remember that Mark and Vince are the only two people who have had consistent access to all of the information available, including what was said by the parties and the Magistrate in the confidential settlement meetings, and how things were explained in closed sessions.

It was Mark and Vince who signed the settlement document on January 6, which was not given to the  Council for review and approval before it was submitted to the court a week later.  What was the actual understanding of each council member for the approval vote on Jan. 4?  Were there any material facts that showed up in the settlement document that the council was completely unaware of?  At least one council member, Kasey Reynolds, says there were such omissions, and she wrote the judge urging him not to sign the order.

The document Mark and Vince both signed was never available to the council, their supposed bosses, until the 13th, over a week later and after it was fully executed by the parties, and just one day before the judge signed the order and dismissed the case.  Both Mark and Vince knew that the document they signed was available at least on the 6th, if not on the 4th when the City council approved “something.”  I say something because we don’t know how the issues were presented to the council. Even today, there is considerable disparity in the recollections of various council members. But no one has disputed that no council member reviewed a document before it went to court.  If they knew that when they voted, then that’s on the council. Did every single council member have the same information and common understanding of what would happen after the January 4 vote? Apparently not.  If their understanding was that they were approving some preliminary terms pending a final review, as some have claimed, then that is on Mark and Vince. While we may not know all the facts, the council members certainly do.

I am just focusing on the Warren case, but I’m sure many other examples exist, and I also believe that something happened which may or not be related to the Warren settlement that precipitated the timing of this action.  While I might say “what took you so long,” as the evidence was already sufficient in my mind, I believe in the idea “better late than never.”  Even if you are asleep, waking up is always a good thing.

Something is happening concerning the Pallet project every day. At the moment, we know the facility is mostly ready, that the Jesus Center has been selected to operate it, but the rules have not been settled.  We heard from both Andrew Coolidge and Sean Morgan that Vince assured them that if they ran into any problems, they could go back to the Magistrate and he would rule favorably for the City because they have done everything the Magistrate asked them to, they were the “white hats.” Again, I can’t possibly know what the Magistrate did or did not say, but certainly, Mark and Vince do.  We don’t know if he said exactly what they said he said, if he meant it in the way they say he meant it, or why they would agree to sign a settlement that needs to be changed even before the shelter opens?

Based on the delay since the time the JC was selected and today, there must be some controversy over the rules, because they have not been settled.  This is the only reason I can imagine for the parties to return to the Magistrate and discuss their problems with him.  We know that the dispute resolution clause of the settlement was not invoked, so my opinion is the magistrate or judge has no authority to make any decisions not mutually agreed by the parties to the settlement.  Even if they used the formal process, my legal opinion is the judge cannot change the language of the settlement except in very extraordinary circumstances, like striking some specific thing that is illegal.  We will know there is a problem if the parties meet with the Magistrate.

Sure enough, on March 18, the parties and the Magistrate met, and the court filed the following minutes from that meeting:

“MINUTES (Text Only) for proceedings held via video conference (Zoom) before Magistrate Judge Kendall J. Newman: INFORMAL CONFERENCE RE: SETTLEMENT held on 3/18/2022. Counsel for parties present. The Court and counsel discussed the case. Plaintiffs' Counsel Robert Newman, Sarah Steinheimer, and Cory Turner present. Defendants' Counsel Vincent Ewing and Eric Salbert present. (Waldrop, A)”

Two important pieces of information can be extracted from this short note. First, it was an “INFORMAL CONFERENCE.”  Court proceedings under the jurisdiction of the court are formal, not informal. This tells us the Magistrate was acting as an informal party with no judicial power or authority.  He could not render a binding decision under these circumstances even if he wanted to.

Second, they “discussed the case.”  He did not issue an order, express an opinion, or announce an outcome. There was no outcome. The “White Hat” theory failed. Shortly afterward, Action News Now ran a story about how the Pallet project was being delayed, and there was no projected opening date.  I believe it is the unresolved operating rules that are the reason for that delay.

Even if that wasn’t the reason, there are other issues with the Outreach and Engagement function required by the settlement agreement.  The city had decided to directly hire a social worker (just like the county does). Because this process is taking place within the “cone of silence” that has surrounded almost every aspect of this case, we don’t know what is happening there.  But we do know that it must be in place before the project can open, and no one can say when it will open, or what stands in the way.  It is hard to believe that anyone expects this part of the process to proceed more smoothly than the shelter operations part.

I haven’t even mentioned enforcement assuming we ever get there.  Recall that while Mark and Vince attended every single settlement conference, early on both agreed to exclude our chief enforcement officer, the Chief of Police Matt Madden. Imagine agreeing that your Chief of Police doesn’t need to be involved in the most important enforcement question impacting all Chico citizens?  Who in their right mind would agree to that condition without a knock-down, drag-out court battle?

The fact that this happened, and it did, helps explain how things may have happened back in January when Chief Madden was tasked with clearing the parks according to directions from Mark and Vince.  Who knows what was said, or wasn’t said to Madden at that time?  Someday I hope speculation can be replaced with the plain and simple truth.

Recap of the sequence of events in the past week.

I can’t say precisely what led up to the events of this week. What I know is that a special meeting was called on March 22 to discuss the performance evaluation for the City Manager. That was a 4-hour meeting, much longer than normal.

Whether it was because they couldn’t finalize the decision then, or for some technical Brown Act reason, another meeting was scheduled for Friday, March 25. This time the words “DISCIPLINE, DISMISSAL” was added to the agenda.

What is strange is what Orme did at this second meeting.  Obviously, by then he knew that his job was on the line.  I even heard from one community member they heard Orme use the phrase “If I’m still here” in a meeting they attended earlier in the week. He knew the Council was going to make a decision that could result in his departure.

Understandably, he didn’t want that to happen, so what did he do?  First, either under his direction or by one of his subordinates, he asked several city employees, including several direct reports, to attend the meeting, even though none was invited by the council.  This group included Mark’s wife and kids and several pastors from local churches, presumably one being Mark’s church. Each used the public speaking privilege to testify to the character and good nature of Mark. I have never heard of such a thing and certainly haven’t witnessed it before.  Frankly, such a showing was not only unprofessional but pathetic. What do his wife and kids have to do with his job performance?  Why were they there?  Is a preacher an expert in this particular city manager’s job performance?

I know Mark is a religious man, and I respect that. But there is a time and place for everything, and I happen to believe that one’s religious practices are a private matter. Certainly, as a government agency, the lobby of the Chambers is not the appropriate place for a prayer meeting, notwithstanding the invocation that proceeds every council meeting.  Here is the image, taken by Evan Tuchinsky, who was there reporting for the CN&R.

This picture was taken as Mark and his entourage awaited the decision by the council. These are some of the city staff that were waiting for word.  Matt Madden likely was asked to be there by the council, as he was going to be appointed interim city manager if Mark was separated.

What a strange position to place your employees in.  If they refuse to show up and Mark remains their boss, that would be awkward.  And if they showed up to defend him unsuccessfully, well that’s pretty awkward too.

A word about resignation

I don’t know for sure because I was not there. I’m partly speculating, based on years of experience in and around corporate executive intrigue, and part just using logic. Mark was working hard to keep his job. From that fact, we can infer that he probably was not planning to resign in the absence of some action by the council.

By combining the reports from Evan Tuchinsky with other public information, we can reconstruct the details of events. According to the report published by the City Clerk after the meeting concluded, things came down like this:

“Three reportable actions were taken in Closed Session and are as follows:

1. Motion by Reynolds/Morgan to direct the City Attorney to negotiate with the City Manager regarding Paragraph 5.a.2. in the City Manager’s employment contract, which allows a majority of Council to accept City Manager Orme’s resignation. That motion carried, 5-2, with Councilmembers Bennett and O’Brien opposed.

After Kasey’s motion passed, the council sent Vince Ewing out to the chambers where Mark was waiting with his supporters and asked him to join him in an adjacent conference room. While alone together, Vince informed Mark that the council was prepared to accept his resignation.  I presume that Vince was told the terms the City would accept and in a very short time, both reemerged and Mark kissed his wife, the news probably obvious, and Vince returned to the Council to report success.

Next:   

2. Motion by O’Brien/Bennett to accept the negotiations that were proposed by City Manager Orme. That motion carried unanimously.

Vince reported on the results of the negotiations, and the council voted unanimously to accept them. We may never fully learn those terms, but I would argue that just like his contract, since it is public funds that will pay whatever severance the city agreed to, we are entitled to know, eventually.

3. Motion by Morgan/O’Brien to appoint Police Chief Matt Madden to serve as Interim City Manager. That motion carried 6-1, with Councilmember Brown opposed.

Now that Mark was separated from the City, we were without a City Manager until the Council appointed a new one, at least on an interim basis.  The choice was Matt Madden, as the police chief is often put in as CM when unexpectedly vacated.  In Chico’s case, we had a newer employee who does not hold the title of Assistant City Manager, but some lower title, like Deputy who could have been appointed interim CM. For whatever reasons the Council had, the nod went to Madden. Brown could never vote for Madden on anything, so her vote is not surprising, although I like trying to imagine what her alternative might have been.

Some may wonder why they didn’t just fire him.  Well, to fire him, they must do so either “without cause” in which case the terms of his employment contract would kick in, which I believe is 8 months of severance pay if I remember correctly, or they can fire him “with cause” in which case they don’t pay severance but open the process up to possible wrongful termination litigation, and a long process of determining if the city had sufficient evidence to terminate for cause.

There are reasons both parties would avoid termination for cause proceedings. First, the city and the employee are now exposed to the risks and costs of a potential legal battle.  That prolongs the separation and can be costly, especially if the city loses.  The employee doesn’t want to have to tell his next employer that he was fired, either, as that would be a red flag that would have to be explored.

The common practice is to negotiate resignation under terms more or less favorable depending on how strong the reasons the city has for termination for cause: Strong case means low payout; weak case means higher payout.  Also, making it effective immediately, one week notice, in this case, creates some additional benefit for the city.  That is the course the council and Mark agreed to.

What next?

The first order of business will be to hire a permanent replacement.  While I’m dreaming, I hope they find someone who is or has recently been a city manager, knows and loves Chico for what it once was and could be, and knows this county and the state well enough to get things done.

I hope it is someone that is oriented around the people of Chico, maybe even already lives here, or has family here, and is old enough to have personal memories of better times.  We need a strategist and a doer, not just a “yes man” or woman, and someone that knows how to say no when necessary and is willing to explain why.  When the answer is yes, I want someone who moves forward with a well-thought-out plan, will depend on outside expertise when helpful, and can rally people and resources to get the job done.

Finally, the culture in city hall needs to change.  No city can function without good city employees, and not just at the top. We do need to take care of whatever employees we have but employees also need to understand and act with the best interests of everyone in this city in mind. They are servants to the public, and not the other way around. That is a matter of culture, and it is high time that accountability is the pattern and practice for everything the city does.  Take credit when things work out and take your lumps when it doesn’t.

I am hopeful this is the beginning of a new trend where the direction we have been heading in makes an abrupt turn towards safer, cleaner, and more beautiful, and we move the conversation along to other critical matters beyond homeless needs and impacts.  It’s about time we have a champion for the people in City Hall, and not just someone willing to be blown along with the political wind.

Yes, it’s true.  I am an incurable optimist, but a guy needs to dream.