Tensions simmer after latest skirmish between city, parks and rec leadership

Published 7:20 pm Friday, August 18, 2023

Interpretations of City Charter at the heart of divide, but there is more to the story


On Thursday morning, former Parks, Recreation and Forestry Director Dave Merrill stood in front of a large group of people — most sitting, but some standing — at the Coffee House on Main.

Outwardly, it was a chance to drink some coffee and talk about community issues, but in reality it was an opportunity for Merrill, who is starting a new job in a Chicago suburb on Monday, to tell his story.

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Just over a week prior Merrill, who had been the Parks and Rec director for over a year, said he was asked to leave by City Administrator Craig Clark on the morning of Tuesday, Aug. 8, days before his official end date of Aug. 11, after Merrill posted on the Parks, Recreation and Forestry’s Facebook page a note that placed blame for recent tensions between the Parks and Rec leadership and the city on the shoulders of city leaders.

“The future is bright. I can see it,” said Merrill in his post on Monday, Aug. 7 following the night’s City Council meeting. “Unfortunately, the present is very cloudy and a little scary.”

Merrill went on to say: “Doing great things for the City of Austin has become a battle. I urge you to cast eyes on the leadership and administration in the City of Austin. There are reasons people who care and fight to do things are leaving.”

City Administrator Craig Clark confirmed the move to the Herald, saying it was the right step in lieu of the public demonstrations by Merrill.

“Mr. Merrill has publicly indicated that he was not happy in his position and as a result, relieving him from his duties a few days early appeared to be the most prudent step forward, for both Mr. Merrill and the City,” Clark said, adding that Merrill was still paid through the rest of the week up to what was supposed to be his final day on Aug. 11.

At nearly the same time, Parks and Rec Board President Helen Jahr and long time Board member Chris Grev also resigned their positions after months of what has at best been a continuing stalemate in progress to find a resolution to long standing conflicts, and at worst what has been called a toxic work environment.

“We lost two quality park directors in four years,” Grev said, referring to Merrill and his predecessor Kevin Nelson. “I feel it’s the City Council’s responsibility to address it. It’s not just that there are differing opinions of the Charter.”

The events of last week was a culmination of a long-simmering dispute between the City of Austin administration and the City Council, and the Parks, Recreation and Forestry Board.

This includes a somewhat heated discussion among the City Council over the Park, Recreation and Forestry’s master plan discussion during the Aug. 7 work session, which eventually led to Merrill’s Facebook posting.

The conflict has been festering both behind the scenes as well as some very public ways. During a March 2022 meeting discussing the hiring of a possible interim director to replace Nelson, tempers became hot and at one point At-large member Jeff Austin brought a motion to let Jahr speak on the need for hiring an interim director and appeared frustrated at the descent.

“I’m disappointed that this was just a discussion among the council,” Austin said. “I think we are setting a bad precedent. If [Parks and Rec Board] feel the need and want a director … I think that is what we should be acting on.”

Towards the end, Council member Jason Baskin vented his own frustrations.

“I don’t know if this needs to be this controversial,” he said. “I’m disappointed we didn’t take any of the 14 off-ramps before we got into a public fist fight.”

In that same meeting a broader question seemed to float to the forefront, which would set a theme of oversight over Merrill’s tenure: Should he report to the Parks and Rec Board or Clark and the City Council?

For those on the side of the Board, it comes down to a multiple-front view.

“I think there are two main issues,” Grev said. “No. 1, difference of opinion in how the City Charter is interpreted in regards to the Park, Rec and Forestry Board and No. 2, the complete dismissal by city admin and City Council to deal with those issues.”

For Grev and others, the Charter lays out support for the idea that the director should be reporting to the Board. At the very least, these supporters argue that the Board should be part of the process.

But those conversations have stalled, creating frustration among the board and Merrill.

“The breaking point was the blatant disregard for the Park Board and the City Charter in deciding to change the reporting structure of the park director from the Park Board to the city administrator,” said Jahr, who had been on the board since 2014, and had chaired it since August 2021 before resigning.

Lawyer Michael G. Dougherty of Dougherty, Molenda, Solfest, Hills & Bauer P.A. out of Apple Valley, was retained by Grev to examine the Charter. In a memo to Grev, dated May 26, 2022, he cited a lawsuit against the City of Minneapolis and the Minneapolis Parks and Recreation Board.

In this memo, Dougherty pointed out wording in Austin’s Charter he thought helped establish powers of both the board and the City Council.

“All powers of the city shall be vested in the council except as otherwise provided by law, or this Charter,” Dougherty highlighted. “The board shall have the exclusive control and management of all lands or real property …”

Dougherty claimed the language was unambiguous, and in later wording went on to highlight other areas of the Charter:

“All contracts, engagements, acts and doings of said board within the scope of their duty and authority shall be obligatory upon and in law binding as if done by the city council of said city,” Dougherty noted, adding his own view. “The Board is acting as the Council when it employs persons to perform the Board’s duties, so long as the compensation is consistent with the Council’s approved budget or the Council’s approval otherwise.”

However, after getting access to the memo, City Attorney Craig Byrum wrote his own memo in response to the Council and members of the Park Board dated Sept. 13, 2022, in which he refuted Dougherty’s interpretation.

Under a section titled: “Role of the Mayor and Council,” Byrum argued that boards, including Parks and Rec, are only extensions of the governing arm of the City Council.

“Those boards are given authority to manage and operate those areas of the City’s broader operations (e.g., buildings, lands and services) devoted to the specific purposes set forth in the Charter,” Byrum wrote. “However, when doing so, said boards are acting on behalf of the City Council and not acting without any regard to the City Council.”

Byrum also pointed out that this governmental structure was approached  during a meeting of the Charter Commission in 2010, that sought to clarify the management abilities of the city administrator and City Council. Something both Mayor Steve King and Clark pointed to as well.

“The council, about a month ago, passed a resolution that all department heads report and flow through administration,” King said. “We made that resolution back when Jim Hurm was administrator and we reaffirmed that. It was the council seeing that the park board and the council were going in different directions.”

Later, a resolution dated March 5, 2012 and that passed by a vote of 5-2, established what the City Administrator’s job entitled.

“Now, therefore, be it resolved, the City Administrator is hereby granted the authority to mange, direct and supervise employees of the City of Austin either directly or through department heads and their subordinate supervisors,” the resolution reads.

However, interpretation of the Charter is only one part of an overall picture that is being painted in harsh tones. Merrill’s departure has simply been the most visible part of it, punctuated by Thursday’s meeting, where he repeated his side of the story and what he was seeing, arguing that it was time for citizens to take an active role in the process.

“The rest is up to you,” Merrill told the large gathering. “What you choose to do with it is up to you.”

“My suggestion is for groups like this to go to the City Council meeting on Monday,” he said toward the end of his presentation. “I urge you to go, have a presence.”

In talking with the Herald, Merrill said he was unaware of the challenges between the board and administration 14 months ago when he was hired, and viewed the community as a place he could live long term with his family.

“I think my final interview in the city, everything was feeling good meeting with Craig in the mayor’s office,” Merrill said. “This is awesome, this feels really good.”

But according to Merrill, things began to sour not long after starting. He recalled one particular meeting with Clark, in which Clark seemed to be asking for loyalty, which he repeated Thursday.

“He told me straight to my face, you need to pick a side,” Merrill claimed. “Either you’re with the park board or you’re with me.”

“You can’t ask me to do that,” he continued. “I’m not comfortable doing that, I didn’t know which side was which. The fact that he put me in that position set the tone for our relationship.”

Clark disputes the notion that he asked Merrill for loyalty over the Board, and instead offered that it was the ongoing Charter dispute brewing into something toxic.

“No, I did not require Dave to pick a side,” Clark stated. “Certainly with any position there is an onboarding which takes place and this one is no different. There was obvious conflict related to the interpretation of the Charter that had been percolating.”

Clark continued.

“Explaining the background of the conflict with the benefit of the city attorney, also present, to lay out the provisions of the Charter was something Dave and I discussed,” he said. “It would have been unfair to let a new director start and not have the benefit of this legal opinion shared with him on what had admittedly become a controversial topic.”

Nevertheless, tensions just beneath the skin of city operations continued to be stretched with Merrill and others seeming to notice a different tone in how he was treated.

“Once established over time that I wasn’t going to pick a side, everything changed,” he said. “It was clear that there was tension that I didn’t go along with what they said.”

It is a shared sentiment by many who back Merrill and the board. It also seems to stretch back even further to when Nelson was director.

“There was a definite decline in Kevin’s demeanor as time went on,” Jahr recalled. “He commented to me that he was having problems with administration and that he wasn’t happy. Hence, his resignation.”

Jahr went on to say that with the department head reporting directly to Clark, the role of the board has been marginalized. It’s part of a larger argument that has people openly suggesting that Clark and the City Council have been working more behind the scenes than in the open in making decisions for the city.

“Things are still happening. I feel like decisions were being made behind the scenes,” Merrill said.

Then on Thursday, he said:  “We’re here being genuine, sincere and transparent. You guys deserve that.”

However, King said it’s been the opposite, and that the council has given plenty of opportunities to the Board to voice their concerns.

“I would say we’ve been open,” King said. “The council has availed itself. We’ve had more issues come before us in meetings that were parks and rec related. More than any other.”

While succinct answers don’t appear on the horizon, one thing does appear to be clear — there is plenty more work to do with plenty of ideas of how to get to something of a conclusion.

“The Charter is the city constitution,” said Grev, who has voiced concern that there haven’t been enough conversations involving the Board. “I don’t think you just ignore it or the differing opinions. You put the work into finding common ground, work with an arbitrator or change the Charter.”

“I think the public needs to go to the City Council and let them know how they feel,” Merrill said, who perceives the situation and optics as being damaging to the overall good of the city. “Hey, what’s happening here? We’ve heard all of this. Let’s get some clarity. The perception of this is just terrible.”

Jahr said she would like to see a neutral party get involved.

“There needs to be an outside third party, hired by the city, to clarify the Park Board and City Charters. Clean up the gray areas,” she said. “And hopefully the mayor and city administrator can rebuild the trust that has been eroded away.”

On the other side, those within the city feel that there is enough solid footing to still do right by the citizens of Austin.

“The overall picture is that conflict exists, you just have to manage it,” King said. “Certainly, folks can say it wasn’t managed well by either party. Now we have a clean slate and we are hoping for the best.”

“I feel the city is strong,” King continued. “It’s unfortunate when someone feels unsupported. I’m saddened by that. …we need to be supportive of employees, the council and the administrator. There’s a lot of opportunity to move forward in a positive way.”

“I do not perceive the City workplace as a ‘toxic work environment’ under any definition,” Clark said. “Serving the public is a high honor and noble calling. We have a staff of high proficiency that delivers critical services to the public in an effective and efficient way.”