Carmel-by-the-Sea, Pacific Grove & Del Rey Oaks: A Study in Contrasts & Comparisons

ABSTRACT: Complaints and allegations against the Mayor of Del Rey Oaks, the City of Pacific Grove and the City Administrator, Mayor and City Council of the City of Carmel-by-the-Sea and Responses to the Complaints and Allegations are contrasted and compared. A direct comparison is made between the complaints by twenty-seven Del Rey Oaks staff members and volunteers in their signed two-page "vote of no confidence" against City of Del Rey Oaks Mayor Joseph P. Russell and complaints by residents and city employees against Carmel-by-the-Sea Mayor Sue McCloud, with COMMENTS. Finally, a QUESTION is asked regarding former Carmel-by-the-Sea employees, City Administrator Rich Guillen and Mayor Sue McCloud.

As reported in The Monterey County Herald (Del Rey Oaks workers slap Mayor Russell with list of complaints, LARRY PARSONS Herald Staff Writer, 07/30/2009), twenty-seven staff members and volunteers in the City of Del Rey Oaks signed a two-page "vote of no confidence" against Mayor Joseph P. Russell and read it at the Tuesday, 28 July 2009 City Council meeting. The reasons cited for the “vote of no confidence” include, as follows: "controlling and manipulating City Council agenda items, manipulating and controlling the budget, and manipulating and controlling the Office of the City Attorney;" "micro-managing and interfering with the daily operations of the City of Del Rey Oaks;" "sending inappropriate e-mail to City Staff, Elected Officials and Consultants retained by the City;" "circumventing the City's City Manager form of government when he feels that it is appropriate to his personal agenda or personal needs;" "does not believe in open and participatory government;" "actions have cost the City thousands of dollars in legal fees;" "authorized the expenditures of thousands of dollars to the City Attorney's Office and City Auditor without the prior consent of the City Council;" "uses harassment and intimidation against Del Rey Oaks Staff as well as Elected and Appointed Officials, creating a hostile and confrontational work environment;" "behavior has placed the City, and as a result the city's taxpayers in a position to face potential civil litigation based on the Mayor's actions;" "placing his personal agenda before that of the residents of the City of Del Rey Oaks;" "does not effectively answer questions posed to him by members of the public;" "refuses to facilitate team-building workshops between City Staff and the City Council which provide staff with clearly understood goals and objectives of their respective governing bodies;" "violates the Code of Conduct Resolution passed by the Del Rey Oaks City Council;" and "created an environment where it is now essential that City Staff create employee associations and collective bargaining groups so that our voices can be heard without the fear of retaliation." Furthermore, it asserts that it is “widely known that Elected Officials, staff members, and others have each been the victim of the Mayor's behavior.”

City of Del Rey Oaks Responses to Complaints:
• Vice Mayor Jerry Edelen stated that “the City Council will have to take some kind of action in response to the employee complaints.”
"We are going to have to solve this issue, once and for all," Edelen stated.

• Mayor Joseph P. Russell stated “he wants to have a public council workshop that would air all the grievances and identify possible solutions.”
"Light is the best disinfectant," Russell stated.

In 2007, in the City of Pacific Grove, a Pacific Grove police officer claimed discrimination, harassment and retaliation.

City of Pacific Grove Responses to Complaints:
• City Manager Jim Colangelo hired an attorney to conduct an investigation into the police officer’s claims.
“I want to get the facts,” “I want to know if these allegations are true. If they are true, there will be consequences for the people involved. We don’t tolerate this type of behavior,” Colangelo stated.

• Mayor Dan Cort stated the City “won’t tolerate discrimination." “I can tell you that the City of Pacific Grove does not condone discrimination or harassment based on one’s race, gender, religion, or sexual orientation.”

In stark contrast, the City of Carmel-by-the-Sea, when notified in writing by Human Resources Manager Jane Miller’s attorney of her complaints regarding employment discrimination, sexual harassment and retaliation in the workplace at City Hall over many years in May 2008, allegedly failed in conduct a thorough and independent investigation and implement appropriate actions.

City of Carmel-by-the-Sea Response to Complaint/Lawsuit:
• Since the filing of Jane Miller’s lawsuit against the City alleging sex-based discrimination, age-based discrimination, sexual harassment and retaliation in the workplace in June 2009, the only public statement from the City has been Mayor Sue McCloud’s statement to Squid Fry, “You’re making a lot out of nothing, and I’m not gonna say anything more to you on this,” and then hung up.

Beyond Mayor Sue McCloud’s unresponsive statement in the face of serious allegations of illegal and unethical conduct, it is worth comparing complaints by staff members and volunteers in their two-page “vote of no confidence” against Del Rey Oaks Mayor Joseph Russell and complaints by residents and City employees against Mayor Sue McCloud, as follows:

• “Mayor Russell has fractured the Del Rey Oaks City Council by controlling and manipulating City Council agenda items, manipulating and controlling the budget, and manipulating and controlling the Office of the City Attorney, who the Mayor has a 30+ year personal and professional relationship with.”

COMMENT: Ditto. Complaints by Carmel-by-the-Sea employees and City Council Members years ago similarly complained of Mayor Sue McCloud controlling and manipulating agenda items, et cetera, especially with regard to not being able to place certain agenda items on a City Council Agenda.

• “Mayor Russell micro-manages and interferes with the daily operations of the City of Del Rey Oaks.”

COMMENT: Ditto. Complaints by City appointees and City employees similarly accused Mayor Sue McCloud of micro-managing city affairs and interfering with the daily operation of the City, including the Community Planning & Building Department.

• "Mayor Russell sends inappropriate e-mail to City Staff, Elected Officials and Consultants retained by the City."

COMMENT: It would not be surprising to learn that Mayor Sue McCloud or an employee acting at her behest contacted the Economic Analysis Consultant regarding the timing and receipt of the Economic Analysis on the Flanders Mansion Property, as one example.

• "Mayor Russell circumvents the City's City Manager form of government when he feels that it is appropriate to his personal agenda or personal needs."

COMMENT: Mayor Sue McCloud “governs” according to her personal agenda; as one example, McCloud’s installation of Sunset Cultural Center, Inc. as the non-profit organization to manage the Sunset Center in 2004 without a community consensus as promised by the Interim Executive Director of the Sunset Center.

• “Mayor Russell does not believe in open and participatory government.”

COMMENT: Complaints by residents and Carmel-by-the-Sea employees about the lack of open and transparent government in Carmel-by-the-Sea formed the basis of a 2005 Grand Jury Report on Open Government. One of the Grand Jury’s Findings was that “Over-control of this process by mayors is not in the public interest.” Yet Mayor Sue McCloud persists in over-controlling city government to the extent there is a dearth of open government in Carmel-by-the-Sea; only what Mayor Sue McCloud wants the public to know is known.

• “Mayor Russell actions have cost the City thousands of dollars in legal fees.”

COMMENT: Ditto. Mayor Sue McCloud’s actions regarding the sale of the Flanders Mansion Property in the City’s largest public park, Mission Trail Nature Preserve, has cost Carmel-by-the-Sea taxpayers nearly $400,000 in consultant attorney fees. Moreover, thousands of taxpayer dollars in consultant attorney fees are anticipated for Miller, Jane Kingsley vs. City of Carmel-by-the-Sea.

• “It is widely known that Mayor Russell uses harassment and intimidation against Del Rey Oaks Staff as well as Elected and Appointed Officials, creating a hostile and confrontational work environment.”

COMMENT: Mayor Sue McCloud’s use of harassment and intimidation is well known to her neighbor Susan Page, City appointees and other members of the public. Furthermore, allegations of creating a hostile work environment are made by former City employee Jane Miller in her current lawsuit against Mayor Sue McCloud and the City of Carmel-by-the-Sea.

• “The Mayor's behavior has placed the City, and as a result the city's taxpayers in a position to face potential civil litigation based on the Mayor's actions.”

COMMENT: Former Human Resources Manager Jane Miller filed a civil lawsuit against the City, City Administrator, Mayor, City Council, et al. alleging sex-based discrimination, age-based discrimination, sexual harassment and retaliation in the workplace on June 17, 2009.

• “Mayor Russell does not effectively answer questions posed to him by members of the public. Instead, he relies on and demands that staff, or the City Attorney's Office provide him with cover, and not report to the public that he is the complaining party or the creator of many issues that the City Council and Staff are required to deal with directly.”

COMMENT: Ditto.

• “None of this should come as a surprise to any member of the Del Rey Oaks City Council. It is widely known by Elected Officials, Appointed Officials, consultants and City Staff that Mayor Russell acts in this manner.”

“It is widely known that Elected Officials, staff members, and others have each been the victim of the Mayor's behavior.”

COMMENT: Ditto. None of Mayor Sue McCloud’s conduct should similarly come as a surprise to any member of the Carmel-by-the-Sea City Council.

QUESTION: If Carmel-by-the-Sea’s then Assistant City Administrator Greg D’Ambrosio, Public Works Director Jim Cullem, Community and Cultural Director Brian Donoghue, Library Director Margaret Pelikan, Principal Planner Brian Roseth and Human Resources Manager Jane Miller had similarly informed the public about Mayor Sue McCloud and City Administrator Rich Guillen regarding employment discrimination, intimidation, harassment and threats of retaliation and/or retaliation in the workplace years ago, would Mayor Sue McCloud and City Administrator Rich Guillen still be in power in City Hall today?

DRAFT CEASE AND DESIST ORDER AGAINST CAL AM (JULY 2009)

ABSTRACT: A “draft Cease and Desist Order in which the State Water Resources Control Board (State Water Board) proposes enforcement action against California American Water for unauthorized diversion and use of water from the Carmel River” was sent via FIRST CLASS MAIL AND ELECTRONIC MAIL to a Service List of Participants on July 27, 2009. The Conclusion and Order are reproduced in their entirety. In short, the Order states that “Cal-Am shall cease and desist from the unauthorized diversion of water from the Carmel River;” commencing October 1, 2009, Cal-Am shall not divert more water from Carmel River than the base of 10,978 afa (acre-feet annually), including immediate reduction diversions by 5% or 549 afa and annual cumulative reductions of 121 afa through 2014, at which time reductions shall increase to 242 af annually until Cal-Am has terminated all unlawful diversions from the Carmel River. Relief from conditions shall only be granted if all of the following conditions are met: Cal-Am has imposed a moratorium on new service connections or has obtained an order prohibiting new connections within 18 months of adoption of Order and MPWMD has imposed a 15% conservation requirement and a showing that public health and safety will be threatened. Furthermore, Cal-Am shall implement one or more small projects that, when taken together, total not less than 500 afa (acre-feet annually) to reduce unlawful diversions from the Carmel River. Tentatively scheduled for September 2, 2009, the State Water Board will receive comments on the DRAFT at a State Water Board Public Workshop in Sacramento.

Draft - July 27, 2009

STATE OF CALIFORNIA
STATE WATER RESOURCES CONTROL BOARD

ORDER WR 2009-00XX

In the Matter of the Unauthorized Diversion and Use of Water
by the California American Water Company

Parties

Water Rights Prosecution Team1
California American Water Company

Interested Parties

Monterey Peninsula Water Management District, City of Carmel by the Sea, City of Seaside, Seaside Basin Watermaster, Pebble Beach Company, Monterey County Hospitality Association, City of Monterey, City of Sand City, Division of Ratepayers Advocates of the California Public Utilities Commission, Public Trust Alliance, Carmel River Steelhead Association, Ventana Chapter of the Sierra Club, California Sportfishing Protection Alliance, Planning and Conservation League, California Salmon and Steelhead Association, National Marine Fisheries Service

SOURCE: Carmel River
COUNTY: Monterey


CONCLUSIONS

Order 95-10 does not authorize Cal-Am to divert water from the Carmel River in excess of its water rights, and Cal-Am is illegally diverting water from the Carmel River in violation of Water Code section 1052. The doctrines of res judicata and collateral estoppel are not a bar to the State Water Board’s adoption of a CDO.

Condition 2 of the Order 95-10 requires Cal-Am to diligently implement actions to terminate its unlawful diversions. Cal-Am has diverted an average of 7,632 afa from the river without a basis of right for the past 13 years, and in the roughly 10-year period since it achieved the 20 percent reduction required by Condition 3 of Order 95-10, Cal-Am has not made any meaningful progress toward reducing the amount of its unlawful diversions. Further, Cal-Am has not diligently pursued several smaller projects that might have been able to alleviate the serious conditions in the Carmel River affecting the survival of steelhead.

Thus, Cal-Am has not diligently implemented actions to terminate its unlawful diversions under Condition 2. Cal-Am’s only action reducing its illegal diversions has been the work done on two projects yielding small amounts of water: the ASR project and the Sand City Desalinization Plant. Significantly, these projects are in place due largely to the efforts made by other agencies, i.e., MPWMD and the City of Sand City.

The lower 9.5 miles of the riverbed are dry for five to six months of each year, due primarily to Cal-Am’s diversions45. Cal-Am’s diversions from the river continue to have an adverse effect on the fish, wildlife and riparian habitat of the river, including the threatened steelhead. Since the adoption of Order 95-10, the California Central Coast steelhead has been declared as threatened under the Endangered Species Act, and the Carmel River has been declared as critical habitat for the steelhead.

The adjudication of the Seaside groundwater basin will decrease the supply of water available to supply Cal-Am’s customers by 417 af in 2009, or by about 2.8 percent of the available supply. Other projects or regulatory actions will make additional water available to Cal-Am, including: (1) the ASR project; (2) the City of Seaside Desalinization Project; (3) the reduction of system losses within the Cal-Am distribution system; (4) the retrofit program; and (5) reducing the use of potable water for outdoor irrigation. Cumulatively, these projects and initiatives may reduce the need to divert water from the river by as much as 1,322 afa.

MPWMD's water allocation program sets aside water for growth within the limits of the supply of water available within its jurisdiction, and for this purpose water being illegally diverted from the river by Cal-Am is treated as available supply. An unintended consequence of this set aside may be that because sufficient water appears to be available for both existing uses and for growth, the peninsula cities and their residents have little incentive to support or pay for a project or projects to obtain a legal supply of water that can be substituted for the illegal diversions from the river.

In consideration of the foregoing, we conclude that Cal-Am should be prohibited from further degrading conditions in the river by diverting water from the river for new service connections, and that Cal-Am should be required to reduce the amount of water being diverted from the river to serve existing service connections. In reaching this conclusion, we are particularly mindful that (a) the lower 9.5 miles of the Carmel River bed are dry for 5 to 6 months of each year, (b) the steelhead is a threatened species, (c) the river has been declared to be critical habitat for the steelhead, and (d) the earliest date which Cal-Am’s illegal diversions may be brought to an end is 2016, some 21 years after the adoption of Order 95-10. We further conclude that the Pebble Beach Company and associated development interests should not be exempt from the conditions restraining Cal-Am from diverting water from the river.

In addition to the foregoing, the State Water Board wishes to highlight the fact that Cal Am has contracted with the National Oceanic and Atmospheric Administration (NOAA) to provide substantial funds for a variety of projects to mitigate the effects of its diversions upon the steelhead in the Carmel River. The funds have not been spent due to administrative problems within the federal government. We strongly urge the NOAA and Cal Am to find a way to resolve the federal administrative problem and free up the funds Cal Am has committed to spend for projects to aid steelhead survival in the Carmel River.

45 See discussion under Section 15.0, supra.

Draft - July 27, 2009

ORDER

NOW, THEREFORE, IT IS ORDERED THAT Cal-Am shall cease and desist from the unauthorized diversion of water from the Carmel River in accordance with the following schedule and conditions:

1. Cal-Am shall diligently implement actions to terminate its unlawful diversions from the Carmel River as soon as reasonably possible. These measures shall include implementing urban and irrigation water conservation measures and obtaining alternative water supplies.

2. Until Cal-Am has terminated its unlawful diversions; Cal-Am shall comply with all of the following:

a. Cal-Am shall not divert water from the Carmel River for new service connections that were not provided a “will serve commitment” before _________________.46 (Insert date of first public workshop to consider the draft order.)

b. Cal-Am shall not divert water from the river for any increased use at existing service addresses resulting from a change in zoning or use and that was not provided a “will serve commitment” (or similar commitment) before ______________. (Insert date of first public workshop to consider the draft order.)

c. Commencing on October 1, 2009,47 Cal-Am shall not divert more water from the river than the base of 10,978 afa,48 as adjusted by the following:

(1) Immediate Reduction: Commencing on October 1, 2009, Cal-Am shall reduce diversions from the river by 5 percent, or 549 afa.

(2) Annual Reductions: Commencing on October 1, 2009, the base shall be further reduced by 121 afa per year through savings that will accrue from (1) reduced system losses, (2) the retrofit program, and (3) the reduction of potable water used for outdoor irrigation. The 121 af reduction shall be cumulative. For example, 121 af shall be reduced in the first year and 242 af shall be reduced in the second year. Commencing on October 1, 2014, annual reductions shall increase to 242 af per year. Annual reductions shall continue until Cal-Am has terminated all unlawful diversions from the Carmel River.

(3) ASR Project: The amount of water diverted to underground storage under Permit 20808A (Application 27614A) as of May 31 of each year and which will be supplied to Cal Am customers after that date shall be subtracted from the base. 49 On May 1 of each year, Cal Am shall submit an operating plan to the Deputy Director for Water Rights specifying the quantity of water it intends to supply from ASR Project for its customers after May 1 of each year. Water pumped from the project for delivery to customers shall be consistent with the requirements of paragraph “e” below.

(4) Sand City Desalination Plant: 94 af shall be subtracted from the base plus any quantity of production not served to new growth within Sand City.

(5) Small Projects: Water produced from new sources developed pursuant to Condition 3 of this order shall be subtracted from the base.

d. Cal-Am may petition the State Water Board Deputy Director for Water Rights for relief from annual reductions imposed under condition c.(2). No relief shall be granted unless all of the following conditions are met: (a) Within 18 months of the adoption of this order, Cal-Am has imposed a moratorium on new service connections pursuant to Water Code section 350 or has obtained an order prohibiting new connections from the PUC pursuant to Public Utility Code section 2708; (b) MPWMD has imposed a 15 percent conservation requirement pursuant to Regulation XV, or a similar regulation, and consumption is being reduced by no less than 90 percent of the 15 percent requirement;50 51 (c) a showing is made that public health and safety will be threatened if relief is not granted. Any relief granted shall remain in effect only as long as (a) a prohibition on new service connections remains in effect, and (b) the 15 percent conservation requirement remains in effect and is at least 90 percent effective.

e. ASR project water stored in the Seaside groundwater basin under Permit 20808A (Application 27614A) shall be used to mitigate the effect of Cal-Am’s illegal diversions from the river. ASR water shall be supplied to Cal Am customers only during months when water is most needed in the river to preserve steelhead. Commencing June 1 of each year, Cal-Am shall use stored groundwater to supply the needs of its customers and reduce diversions from the river. Consistent with Cal Am’s operating plan, water shall be pumped from the groundwater basin at the maximum practicable rate for as long as possible; Cal-Am’s diversions from the river shall be reduced at the same rate for as long as stored water is available under the operating plan. The river’s habitat and fish may receive greater benefits from a substitution regime that differs from that required by this condition, a regime requiring that substitution commence at a different date, at a different rate or be coordinated with the level of flow in the river. In addition, it may be desirable to hold stored water from one year to the next to assure that more water is available for the steelhead and its habitat in years when the potential for steelhead survival may be greater. Several substitution trials may be necessary to determine which regime will have the greatest benefit. The National Marine Fisheries Service and the California Department of Fish and Game are encouraged to negotiate different substitution regimes with Cal-Am. The State Water Board will honor such agreements, provided Cal-Am submits the written agreement to the Deputy Director for Water Rights no later than May 1 of each year and the written agreement is approved by the Deputy Director.

3. Cal-Am shall implement one or more small projects that, when taken together, total not less than 500 afa to reduce unlawful diversions from the river. Within 90 days of entry of this order, Cal-Am shall identify to the Deputy Director for Water Rights the projects that it will implement and shall implement the projects within 24 months of entry of this order. Cal-Am may petition the Deputy Director for additional time in which to implement the projects. However, no time extension shall be considered unless the petition is accompanied by detailed plans and time schedules for each project. Detailed justification shall be provided for additional time. No additional time may be granted in order to allow Cal-Am time to obtain prior approval from the PUC. To the maximum practicable extent, small projects shall be operated in conjunction with the ASR project to reduce illegal diversions from the river during the months when surface flow in the river begins to go dry and through the months when surface flow in the river disappears below river mile 9.5.

4. Starting three months following adoption of this order, Cal-Am shall post quarterly reports on its website and file the quarterly reports with the Deputy Director for Water Rights. The quarterly reports shall include the following:

(a) Monthly summaries of the quantity of water it diverts from the river.

(b) Monthly summaries of the quantity of ASR project water diverted from the river under Permit 20808A and stored in the Seaside ground water basin. The monthly reporting shall also state the quantity of water beneficially used under Permit 20808A and the current balance of water in storage.

(c) Monthly summaries of the quantity of water being produced by the Sand City desalinization plant. The reporting shall identify new service connections within Sand City and thereafter report the quantity of water being delivered to the new connections. The monthly reports shall specify the quantity of water used to reduce diversions from the river during the reporting period.

(d) Monthly summaries of the quantity of water saved by reducing system losses.

5. Starting six months after adoption of this order, Cal-Am shall file quarterly reports of its progress toward implementing Condition 3 (small project implementation) and note specifically any problems with its schedule of implementation. The Deputy Director for Water Rights is authorized to modify the timing and the content of the reporting required by all of the provisions in this condition in order to more effectively carry out the intent of this order.

6. Cal-Am shall comply with all requirements of Order 95-10, except as follows:

(a) Condition 1 of Order 95-10 is superseded by Condition 2 of this order.

(b) Condition 3(b) of Order 95-10 is superseded by Condition 2 of this order.

(c) The last sentence of Condition 4 is deleted because the Seaside groundwater basin watermaster will determine the manner in which water may be withdrawn from the groundwater basin.

(d) All other conditions of Order 95-10 shall remain in full force and effect until fully implemented.

CERTIFICATION
The undersigned Clerk to the Board does hereby certify that the foregoing is a full, true, and correct copy of an order duly and regularly adopted at a meeting of the State Water Resources Control Board held on ____________, 2009.

AYE:

NO:

ABSENT:

ABSTAIN:

DRAFT
Jeanine Townsend
Clerk to the Board

Notes:
46 Multiunit residential, commercial or industrial sites may currently be served by a single water meter. The installation of additional meters at an existing service will not be viewed as a new service connection provided that the additional metering does not result in an increase in water use. Metering each unit of a multiunit building tends to increase accountability in the use of water and the effectiveness of water conservation requirements.

47 Each water year runs from October 1 to September 30 of the following year.

48 Cal-Am diverts 3,376 afa under legal rights and, on average, 7,632 afa without a basis or right. (3,376 + 7,632 = 10,978 afa).

49 This condition shall apply to Phase I and Phase II of the ASR project.

50 The State Water Board recognizes that MPWMD may need to modify regulation XV in response to this order.

51 For purposes of measuring compliance, the 15 percent reduction shall measured agsinst the adjusted base required by condition 2.c. for the year in which the conservation requirement is imposed.

Draft - July 27, 2009

(Source: DRAFT CEASE AND DESIST ORDER AGAINST CALIFORNIA AMERICAN WATER FOR UNAUTHORIZED DIVERSION OF WATER FROM THE CARMEL RIVER IN MONTEREY COUNTY, July 27, 2009)

NOTE: A State Water Board Public Workshop to receive comments on the draft is tentatively scheduled for September 2, 2009 in Sacramento. The State Water Board will issue a public notice of the workshop at least ten days in advance. The notice will include procedures for submitting comments concerning the enclosed draft. Contact Paul Murphey at (916) 341-5435 or by e-mail with questions at pmurphey@waterboards.ca.gov.

UPDATE: Three Lawsuits against the City of Carmel-by-the-Sea

ABSTRACT: An Update on three lawsuits against the City of Carmel-by-the-Sea, namely Miller, Jane Kingsley vs. City of Carmel-by-the-Sea (M99513), Flanders Foundation vs. City of Carmel-by-the-Sea et al. (M99437) and Mandurrago, John et al. vs. City of Carmel-by-the-Sea et al. (H034439; Trial Court Case M97273), is presented.

• Miller, Jane Kingsley vs. City of Carmel-by-the-Sea (M99513):

Complaint Filing Date: 6/17/2009
Answer to Complaint: 7/17/2009

Case Management Conference: 12/17/2009 @ 9:00 A.M., Courtroom 15, Hon. Susan M. Dauphiné, Civil Trial Department

• The Flanders Foundation vs. City of Carmel-by-the-Sea et al. (M99437)

Petition Filing Date: 6/12/2009
Future Scheduled Actions: TBD

NOTICE OF SETTING of Time and Place for Parties to Meet and Confer
(Public Resources Code 21167.8, subdivision (a))

Date: None
Time: None
Department: None

TO ALL PARTIES & THEIR COUNSEL:

PLEASE TAKE NOTICE THAT the parties have set the time and place to meet and confer regarding anticipated issues to be raised in the litigation and shall attempt in good faith to settle the litigation and the dispute which forms the basis of the litigation, pursuant to Public Resources Code section 21167.8, subdivision (a), for July 23, 2009 at 2:00 P.M. by telephone.

Respectfully submitted,
Donald G. Freeman, Esquire

Joel Franklin

Counsel for Respondents, CITY OF CARMEL-BY-THE-SEA & CITY COUNCIL OF CITY OF CARMEL-BY-THE-SEA

COMMENT:
• According to a source involved in this matter, the City requested Flanders Foundation drop the lawsuit until after the election on the sale of the Flanders Mansion Property scheduled for 3 November 2009. Flanders Foundation declined.

ADDENDUM:
California Codes
California Public Resources Code
PUBLIC RESOURCES CODE SECTION 21165-21177
21167.8. (a) Not later than 20 days from the date of service upon a public agency of a petition or complaint brought pursuant to Section 21167, the public agency shall file with the court a notice setting forth the time and place at which all parties shall meet and attempt to settle the litigation. The meeting shall be scheduled and held not later than 45 days from the date of service of the petition or complaint upon the public agency. The notice of the settlement meeting shall be served by mail upon the counsel for each party. If the public agency does not know the identity of counsel for any party, the notice shall be served by mail upon the party for whom counsel is not known.

City Expenditures for the sale of the Flanders Mansion Property (as of June 2009 Check Register) total $ 767,281.47, including attorney fees of $391,741.89, Environmental Impact Reports costs of $247,638.90 and Economic Analysis Project costs of $67,899.72.

• Mandurrago, John et al. vs. City of Carmel-by-the-Sea et al. (H034439; Trial Court Case M97273)

Future Scheduled Actions:
Appellant's appendix and opening brief filed. Due Date: 8/21/2009

Docket (Register of Actions) Highlights:
Notice of appeal received. 7/13/2009
Received copy of document filed in trail court. 7/13/2009
Civil case information statement filed. 7/15/2009
Reporter’s transcript filed. 7/22/2009

(Sources: Monterey County Superior Court Cases and CALIFORNIA APPELLATE COURTS, Case Information, 6th Appellate District)

ADDENDUM:
Superior Court of California, County of Monterey Local Rules of Court CHAPTER 6 CIVIL DEPARTMENT, pages 87-124
Note: “It is the policy of this Court that all complaints are served, all challenges to the pleadings be heard, and the matter be at-issue no later than 180 days from the filing of the complaint. It is also the policy of this Court that all civil matter be resolved in no more than 12 to 24 months of the filing of the complaint.”

California Rules of Court

California Rules of Court, Title Three. Civil Rules (Rules 3.1 - 3.2120)

ANSWER TO COMPLAINT: MILLER, JANE KINGSLEY v. CITY OF CARMEL-BY-THE-SEA

Abstract: On 17 July 2009, attorneys for Liebert Cassidy Whitmore filed an ANSWER TO COMPLAINT regarding Miller, Jane Kingsley, Plaintiff v. City of Carmel-by-the-Sea, Defendant, (M99513) in Monterey County Superior Court. The ANSWER TO COMPLAINT, signed by attorney Suzanne Solomon, contains twenty-one AFFIRMATIVE DEFENSES. In the ANSWER TO COMPLAINT, Defendant “denies, generally and specifically, each and every allegation” and “also denies, generally and specifically, that Plaintiff is entitled to the relief requested. or any relief at all, or that Plaintiff has been or will be damaged in any amount, or at all, by reason of any act, omission, or breach on the part of Defendant, or on the part of any of Defendant’s agents, servants, employees, or any of them.” The ANSWER TO COMPLAINT in reproduced in its entirety. Interestingly, the SIXTEENTH AFFIRMATIVE DEFENSE states, as follows: “As a sixteenth affirmative defense, Defendant alleges that Plaintiff’s causes of action, and each of them, are barred on the ground that City Defendant took immediate and appropriate action to investigate Plaintiff’s complaint and concerns.” Yet the City has failed to inform the public about any investigation of then Human Resources Manager Jane Miller’s “complaint and concerns” and the results and conclusions of said investigation.

Richard C. Bolanos, Bar No. 111343
rbalanos@lcwlegal.com
Suzanne Solomon, Bar Mo. 169005
ssolomon@lcwlegal.com
Grace Y. Chan, Bar No. 240993
gchen@lcwlegal.com
Liebert Cassidy Whitmore
A Professional law Corporation
153 Townsend Street, Suite 520
San Francisco, CA. 94107

Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
MONTEREY DIVISION


JANE KINGSLEY MILLER, Plaintiff

v.

CITY OF CARMEL-BY-THE-SEA, Defendant

Case No. M99513
ANSWER TO COMLAINT

Defendant CITY OF CARMEL-BY-THE-SEA answers the unverified Complaint of Plaintiff Jane Kingsley Miller (hereafter “Plaintiff”) as follows:

Pursuant to Code of Civil Procedure section 431.30, subdivision (d), Defendant denies, generally and specifically, each and every allegation contained in the Complaint. Defendant also denies, generally and specifically, that Plaintiff is entitled to the relief requested, or any relief at all, or that Plaintiff has been or will be damaged in any amount, or at all, by reason of any act, omission, or breach on the part of Defendant, or on the part of any of Defendant’s agents, servants, employees, or any of them.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

1. As a first affirmative defense, Defendant alleges that the unverified Complaint fails to state facts sufficient to constitute any cause of action against Defendant.

SECOND AFFIRMATIVE DEFENSE

2. As a second affirmative defense, Defendant alleges that the Complaint fails to state any claim for violation of the Fair Employment and Housing Act.

THIRD AFFIRMATIVE DEFENSE

3. As a third affirmative defense, Defendant alleges that the City has established and enforces, at all relevant times, policies prohibiting harassment, retaliation and discrimination and that the City exercised reasonable care at all times to prevent and/or promptly remedy any harassment, discrimination, or retaliation, if in fact any such conduct ever occurred.

FOURTH AFFIRMATIVE DEFENSE

4. As a fourth affirmative defense, Defendant alleges that the Plaintiff acted unreasonably in failing to take advantage of any preventive or corrective opportunities Defendant provided or otherwise take action to avoid or remedy alleged harm.

FIFTH AFFIRMATIVE DEFENSE

5. As a fifth affirmative defense, Defendant alleges Plaintiff is barred from seeking any damages from purported physical or emotional injuries allegedly suffered as a result of her employment in that the sole and exclusive remedy in this respect is governed by the Worker’s Compensation Act (Labor Code §§ 3200 et seq.).

SIXTH AFFIRMATIVE DEFENSE

6. As a sixth affirmative defense, Defendant alleges that all of Plaintiff’s causes of action in her unverified Compliant are barred by Plaintiff’s failure to comply fully and timely with the statutory prerequisites necessary to maintain any or all of the causes of action brought under the Fair Employment and Housing Act, California Government Code section 12900 et seq.

SEVENTH AFFIRMATIVE DEFENSE

7. As a seventh affirmative defense, Defendant alleges that Plaintiff has failed to exhaust her administrative remedies under any applicable local, state or federal policies, regulations, procedures, or laws.

EIGHTH AFFIRMATIVE DEFENSE

8. As an eighth affirmative defense, Defendant alleges that some or all of Plaintiff’s claims are barred by the privileges and immunities applicable to public employees and agencies, including, but not limited to, California Government Code sections 815, 815.2, 815.6, 818.2, 820, 820.2, 820.4, 820.8, 820.9, 821, 821.6, 822.2, and /or other statutory common law privileges or immunities.

NINTH AFFIRMATIVE DEFENSE

9. As a ninth affirmative defense, Defendant alleges that even “but for” any alleged retaliatory or discriminatory motives, the actions taken regarding Plaintiff’s employment would have been the same.

TENTH AFFIRMATIVE DEFENSE

10. As a tenth affirmative defense, Defendant alleges that Plaintiff’s claims are frivolous, unreasonable, and groundless, and accordingly, Defendant should recover all costs and attorneys’ fees incurred herein.

ELEVENTH AFFIRMATIVE DEFENSE

11. As an eleventh affirmative defense, Defendant alleges that Plaintiff’s claims, and each of them, are barred by the applicable statures of limitations, including, but not limited to, Government Code sections 12960 and 12965.

TWELFTH AFFIRMATIVE DEFENSE

12. As a twelfth affirmative defense, Defendant alleges that at all times mentioned in the unverified Complaint, Defendant acted in conformity with applicable constitutional law, state and federal laws, ordinances, regulations, and policies.

THIRTTEENTH AFFIRMATIVE DEFENSE

13. As a thirteenth affirmative defense, Defendant alleges that Plaintiff’s Complaint and each cause of action are barred, or any recovery should be reduced, because of Plaintiff’s own neglect and fault in connection with the matters alleged.

FOURTEENTH AFFIRMATIVE DEFENSE

14. As a fourteenth affirmative defense, Defendant alleges that Plaintiff had a duty to mitigate her damages, but has failed to mitigate any damages to which she may be entitled.

FIFTHTEENTH AFFIRMATIVE DEFENSE

15. As a fifthteenth affirmative defense, Defendant alleges that Plaintiff’s causes of action, and each of them, are barred on the ground that City Defendant had good faith, legitimate, non-discriminatory business reasons, which were not a pretext for discrimination or retaliation for each and every employment action regarding Plaintiff.

SIXTEENTH AFFIRMATIVE DEFENSE

16. As a sixteenth affirmative defense, Defendant alleges that Plaintiff’s causes of action, and each of them, are barred on the ground that City Defendant took immediate and appropriate action to investigate Plaintiff’s complaint and concerns.

SEVENTEENTH AFFIRMATIVE DEFENSE

17. As a seventeenth affirmative defense, Defendant alleges that Plaintiff’s alleged injuries, losses, or damages were proximately causes by a superceding and intervening cause.

EIGHTEENTH AFFIRMATIVE DEFENSE

18. As an eighteenth affirmative defense, Defendant alleges that Plaintiff is barred by estoppel from receiving some or all of the relief she seeks.

NINETEENTH AFFIRMATIVE DEFENSE

19. As a nineteenth affirmative defense, Defendant alleges that the Plaintiff’s causes of action, and each of them, are barred by laches.

TWENTIETH AFFIRMATIVE DEFENSE

20. As a twentieth affirmative defense, Defendant alleges that the Plaintiff’s causes of action, and each of them, are barred by the doctrines of unclean hands, or waiver.

TWENTY-FIRST AFFIRMATIVE DEFENSE

21. As a twenty-first separate and affirmative defense, Defendant alleges that to the extent during the course of this litigation City acquires any evidence of wrongdoing by Plaintiff and the wrongdoing would have materially affected the terms and conditions of Plaintiff’s employment or would have resulted in Plaintiff either being demoted, disciplined, or terminated, such after-acquired evidence shall bar Plaintiff’s claim on liability or damages or shall reduce such claim or damages as provided by law.

WHEREFORE, the Defendant prays for relief as follows:

1. That the Court deny Plaintiff’s requests for damages;
2. That the Court deny Plaintiff’s request for attorneys’ fees;
3. That the Court deny Plaintiff’s request for prejudgment interest;
4. That the Court deny Plaintiff’s request for costs of suit;
5. That Plaintiff take nothing from this action;
6. That the Court grant the Defendant their attorneys’ fees and costs of suit; and that the Court grant the Defendant such other and further relief as the Court deems proper.

Dated: July 17, 2009

LIEBERT CASSIDY WHITMORE
By:________________________
Suzanne Solomon
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA

REFERENCES:
California Code of Civil Procedure

431.30.
(d) If the complaint is subject to Article 2 (commencing with Section 90) of Chapter 5.1 of Title 1 of Part 1 or is not verified, a general denial is sufficient but only puts in issue the material allegations of the complaint. If the complaint is verified, unless the complaint is subject to Article 2 (commencing with Section 90) of Chapter 5.1 of Title 1 of Part 1, the denial of the allegations shall be made positively or according to the information and belief of the defendant. However, if the cause of action is a claim assigned to a third party for collection and the complaint is verified, the denial of the allegations shall be made positively or according to the information and belief of the defendant, even if the complaint is subject to Article 2 (commencing with Section 90) of Chapter 5.1 of Title 1 of Part 1.

California Government Code sections 815, 815.2, 815.6, 818.2, 820, 820.2, 820.4, 820.8, 820.9, 821, 821.6, 822.2

California Government Code
815. Except as otherwise provided by statute:
(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.
(b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.

815.2. (a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.

815.6. Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

818.2. A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.

820. (a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
(b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.

820.2. Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.

820.4. A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.

820.8. Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.

820.9. Members of city councils, mayors, members of boards of supervisors, members of school boards, members of governing boards of other local public entities, members of locally appointed boards and commissions, and members of locally appointed or elected advisory bodies are not vicariously liable for injuries caused by the act or omission of the public entity or advisory body. Nothing in this section exonerates an official from liability for injury caused by that individual's own wrongful conduct. Nothing in this section affects the immunity of any other public official.
This section shall become operative January 1, 2000.

821. A public employee is not liable for an injury caused by his adoption of or failure to adopt an enactment or by his failure to enforce an enactment.

821.6. A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.

822.2. A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.

Government Code sections 12960 and 12965
12960. (a) The provisions of this article govern the procedure for the prevention and elimination of practices made unlawful pursuant to Article 1 (commencing with Section 12940) of Chapter 6.
(b) Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or his or her authorized representative may in like manner, on his or her own motion, make, sign, and file a complaint.
(c) Any employer whose employees, or some of them, refuse or threaten to refuse to cooperate with the provisions of this part may file with the department a verified complaint asking for assistance by conciliation or other remedial action.
(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred, except that this period may be extended as follows:
(1) For a period of time not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence.
(2) For a period of time not to exceed one year following a rebutted presumption of the identity of the person's employer under Section 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.
(3) For a period of time, not to exceed one year from the date the person aggrieved by an alleged violation of Section 51.7 of the Civil Code becomes aware of the identity of a person liable for the alleged violation, but in no case exceeding three years from the date of the alleged violation if during that period the aggrieved person is unaware of the identity of any person liable for the alleged
violation.
(4) For a period of time not to exceed one year from the date that a person allegedly aggrieved by an unlawful practice attains the age of majority.

12965. (a) In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, or persuasion, or in advance thereof if circumstances warrant, the director in his or her discretion may cause to be issued in the name of the department a written accusation. The accusation shall contain the name of the person, employer, labor organization, or employment agency accused, which shall be known as the respondent, shall set forth the nature of the charges, shall be served upon the respondent together with a copy of the verified complaint, as amended, and shall require the respondent to answer the charges at a hearing.
For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, and accusation pursuant to Section 12961, an accusation shall be issued, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, an accusation shall be issued, if at all, within two years after the
filing of the complaint. For all other complaints, an accusation shall be issued, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation and accusation as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.
(b) If an accusation is not issued within 150 days after the filing of a complaint, or if the department earlier determines that no accusation will issue, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the
complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant's residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department and of the commission. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those
persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees, except where the action is filed by a public agency or a public
official, acting in an official capacity.
(c) (1) If an accusation includes a prayer either for damages for emotional injuries as a component of actual damages, or for administrative fines, or for both, or if an accusation is amended for the purpose of adding a prayer either for damages for emotional injuries as a component of actual damages, or for administrative fines, or both, the respondent may within 30 days after service of the accusation or amended accusation, elect to transfer the proceedings to a court in lieu of a hearing pursuant to subdivision
(a) by serving a written notice to that effect on the department, the commission, and the person claiming to be aggrieved. The commission shall prescribe the form and manner of giving written notice.
(2) No later than 30 days after the completion of service of the notice of election pursuant to paragraph (1), the department shall dismiss the accusation and shall, either itself or, at its election, through the Attorney General, file in the appropriate court an action in its own name on behalf of the person claiming to be aggrieved as the real party in interest. In this action, the person claiming to be
aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by his or her own counsel. Complaints filed pursuant to this section shall be filed in the superior court in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be
brought within the county of the defendant's residence or principal office. Those actions shall be assigned to the court's delay reduction program, or otherwise given priority for disposition by the court in which the action is filed.
(3) A court may grant as relief in any action filed pursuant to this subdivision any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employer's internal grievance procedures.
(4) The department may amend an accusation to pray for either damages for emotional injury or for administrative fines, or both, provided that the amendment is made within 30 days of the issuance of the original accusation.
(d) (1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(C) A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
(3) This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.
(e) (1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.
(C) After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.
(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.

City Government Contrivance of Stalling & Stonewalling

ABSTRACT: The City of Carmel-by-the-Sea, under the mayorship of Sue McCloud, has perfected the contrivance of stalling and stonewalling. Four recent examples of stalling and stonewalling are presented, namely a delayed payment for services to the Carmel Valley Fire District, a delinquent payment owed to the Monterey County Elections Department, delayed implementation of a long-term solution for Fire Protection Services and the City’s failure to investigate a city employee’s complaints of employment discrimination, sexual harassment and retaliation in the workplace at City Hall immediately upon receipt of attorney Michael Stamp’s letter chronicling the complaints in May 2008.

EXAMPLES OF STALLING & STONEWALLING:
• Delayed Payment for Services to the Carmel Valley Fire District

The City delayed by “several months” the payment of $43,000 to the Carmel Valley Fire District; a “retroactive bill” to cover services the District was providing the City. The District was in effect subsidizing the City of Carmel-by-the-Sea for billing, human resources and vehicle maintenance work for ambulance services, according to District consultants. And according to Fire Chief Mike Urquides, the City of Carmel-by-the-Sea “kept stalling on their payment. One meeting they gave it to us, one meeting they took it back, one meeting they said we had to wait.”

(Source: Poor Little Rich City Carmel balks on bills from ambulance district, elections department, Kera Abraham, MONTEREY COUNTY WEEKLY, July 16, 2009)

• Delinquent on Payment to Monterey County Elections Department

The City is delinquent on the payment of approximately $17,000 owed the Monterey County Elections Department for the 2008 City Special Election. While the City is responsible for the ballot, the County is responsible for counting and supervision. And, according to Registrar of Voters Linda Tulett, “The county has an obligation to recoup those costs and not have to pay for city elections.” Meanwhile, City Administrator Rich Guillen stated, "We do intend to pay it," "We just want to make sure we understand what we're paying for."

(Source: Poor Little Rich City Carmel balks on bills from ambulance district, elections department, Kera Abraham, MONTEREY COUNTY WEEKLY, July 16, 2009)

• Stalled on a Long-Term Solution for City Fire Protection Services

The City has stalled on a long-term solution for City Fire Protection Services. At the 7 July 2009 City Council Meeting, the City Council approved an interim Fire Services Contract with the City of Monterey, retroactive to July 1, 2009 through January 31, 2010, at a cost of $94,500.

The City has had over 18 months to study all Fire Protection Services options and resolve issues involving a long-term contract with the City of Monterey. Yet the City Administrator stated “we wanted to buy some additional time, and that was about six months,” “to resolve whatever remaining issues there are to have Carmel contract with Monterey for fire service.”

(Source: City renews contract with Monterey fire, MARY BROWNFIELD, The Carmel Pine Cone, July 17, 2009, page 5)

• City’s Failure to Immediately Investigate a City Employee’s Complaints of Employment Discrimination, Sexual Harassment and Retaliation in the Workplace

In May 2008, the Mayor and City Council received a letter from Human Resources Manager Jane Miller’s attorney Michael Stamp notifying the city of Miller’s complaints of employment discrimination, sexual harassment and retaliation in the workplace at City Hall. Instead of taking the employee’s claims seriously and placing City Administrator Rich Guillen on administrative leave in May 2008 pending the outcome of an independent investigation, the City not only failed to respond to the letter, but ignored the allegations. Not only that, but five months later, at the October 7, 2008 City Council Meeting, the City Council unanimously approved a Resolution Adopting an Employment Agreement with Richard I. Guillen, City Administrator, from January 1, 2008 – December 31, 2008 at $150,000/year, retroactive to April 30, 2008, increasing his salary/benefits an additional $14,500/year over his previous employment agreement.

More recently, Mayor Sue McCloud stonewalled Squid Fry on questions about Jane Miller’s allegations of employment discrimination, sexual harassment and retaliation in the workplace at City Hall with her statement, “You’re making a lot out of nothing, and I’m not gonna say anything more to you on this,” and then hung up. If a city employee’s claims of employment discrimination, sexual harassment and retaliation in the workplace are seen by the mayor as “nothing,” then how is it she knows the claims are “nothing” without an independent investigation of Miller’s allegations? Moreover, a mayor who decides allegations are “nothing” prior to an investigation is a mayor who is condoning potentially unethical and illegal behavior or is complicit or actively engaged in the potentially unethical and illegal behavior and engaged in a cover-up herself.

(Source: CARMEL PORN, Squid Fry, MONTEREY COUNTY WEEKLY, July 16, 2009)

Mayor Sue McCloud: "You're making a lot out of nothing,..."

“You’re making a lot out of nothing, and I’m not gonna say anything more to you on this,” Mayor Sue McCloud stated, and hung up.
(Source: MONTEREY COUTY WEEKLY, CARMEL PORN, Squid Fry, July 16, 2009)

QUESTION: Given the credibility, gravity and long-term nature of Human Resources Manager Jane Miller’s employment discrimination, sexual harassment and retaliation allegations against City Administrator Rich Guillen, Mayor Sue McCloud and Council Members, is Mayor Sue McCloud’s response appropriate and professional?

ANSWER: Absolutely not! Moreover, Mayor Sue McCloud’s response indicates a willingness to diminish the serious allegations of an employee of the City of Carmel-by-the-Sea and an attempt to “make the whole mess go away.”

QUESTION: Will Carmel-by-the-Sea residents, taxpayers and voters hold the City Administrator, Mayor and City Council Members accountable for their alleged actions and inactions or will Carmel-by-the-Sea residents, taxpayers and voters play “dead” also?

ANSWER: TBD

Flanders Mansion Property: SALIENT POINTS AGAINST & FOR THE SALE OF THE FLANDERS MANSION PROPERTY

ABSTRACT: With the City Council determined to place the question “Shall discontinuance and abandonment of the Flanders Mansion Property (APN 010-061-005) as public parkland, and authorization to sell the Flanders Mansion Property "with Conservation Easements and Mitigation" as passed on May 12, 2009 by the City of Carmel-by-the-Sea City Council by Resolutions No. 2009-30 through 2009-33, be approved?” on the ballot for the 3 November 2009 General Election and the Flanders Foundation lawsuit against the City of Carmel-by-the-Sea, et al. proceeding in Monterey County Superior Court, a Summary of the SALIENT POINTS AGAINST THE SALE OF THE FLANDERS MANSION PROPERTY and SALIENT POINTS FOR THE SALE OF THE FLANDERS MANSION PROPERTY gleaned from Letters to the Editor and Editorials will be compiled and presented.

SALIENT POINTS AGAINST THE SALE OF THE FLANDERS MANSION PROPERTY:
• Sale of parkland in the “heart of the park” “will damage the park irrevocably." (3/13/2009)

• City cites reason to sell Flanders Mansion Property based on need of “significant” repairs, yet the City had failed to apply for grants and meet with local groups during the last 10 years. (3/13/2009)

• Comparison made between what Flanders Mansion and Mission Trail Nature Preserve could be and Villa Montalvo, Gamble House, Filoli, Steinbeck House and La Mirada. (3/13/2009)

• Urges city government representatives and Carmelites in favor of selling the Flanders Mansion Property to meet with Carmelites opposed to selling the Flanders Mansion Property and “work out a solution that keeps this priceless property in the community’s hands.” (4/16/2009)

• Flanders Mansion is “a beautiful mansion situated in spectacular park setting.” (4/16/2009)

• “...once Flanders is gone, it is gone forever.” (4/16/2009)

• “Win-win proposition” of a resident curatorship; City leases Flanders Mansion Property to an individual for life and upon death property reverts to the City. Resident curator restores Flanders Mansion at his/her expense and allows public access to Flanders Mansion Property at specified times. (5/8/2009)

• Flanders Mansion a “jewel in the crown of Carmel;” it “could be as well-known and visited as the Carmel Beach and Ocean Avenue." (6/24/2009)

• Senses “some ulterior motive for the city not putting energy and foresight into Flanders.” (6/24/2009)

• Encourages “all of good faith to join the committee to preserve and enhance Flanders Mansion, instead of selling it to a rich party-developer for personal gain.” (6/24/2009)

• “No reason to sell” Flanders Mansion Property, a 1.25 acre parcel in the “heart of the park.” (7/13/2009)

• City does not lack money to maintain or rehabilitate Flanders Mansion; City reserves $10 million, FY 2008/09 budget “$1.2 million in the black.” (07/13/2009)

• City has rejected offers to “lease and refurbish” Flanders Mansion from “numerous individuals and organizations” and City has failed to “avail itself of public or private grants.” (07/13/2009)

• “Once parkland is sold, it is gone forever.” (07/13/2009)

REFERENCES:
The Carmel Pine Cone March 13, 2009 (‘Enrich our lives,’ Shirley Humann, Carmel) 26A

The Monterey County Herald, 04/16/2009 (Flanders priceless property, Richard Stiles, Carmel)

The Carmel Pine Cone May 8, 2009 (‘Resident curatorship,’ Virginia Connelly, Carmel) 26A

The Monterey County Herald, 06/24/2009 (Invest in Flanders Mansion, JoAnn Vincent, Carmel)

The Monterey County Herald, 07/13/2009 (No reason to sell Flanders Mansion, Brie Tripp, Carmel)

SALIENT POINTS FOR THE SALE OF THE FLANDERS MANSION PROPERTY:
• Claims “no public use that’s suitable” for the Flanders Mansion; cites committee proposal for use as a culinary academy voted down by City Council under Mayor Ken White. (3/27/2009)

• Claims, if polled, neighbors want private residence “compatible with the area.” (5/08/2009)

• Wants “objectors” to purchase Flanders Mansion Property and pay for restoration rather that waste “taxpayers money with legal obstructions.” (5/08/2009)

• Claims the Flanders Mansion is “unsuitable” for any “worthy public use” “due to its location in a quiet, residential neighborhood.” (7/03/2009)

REFERENCES:
Carmel Pine Cone March 27, 2009 (‘Here we go again,’ Rita Holloway, Carmel Valley) 22A

The Carmel Pine Cone May 8, 2009 (‘Get rid of Flanders now,’ P. S. Chase, Carmel) 26A

The Carmel Pine Cone July 3, 2009 (Editorial: The power of one)

SIXTH DISTRICT COURT OF APPEAL: Mandurrago Appeals Monterey Superior Court Judge's Decision

ABSTRACT: With regard to Mandurrago et al. v. City of Carmel-By-The-Sea (M97273), plaintiff, designer and developer John Mandurrago has filed an appeal of Judge Robert O’Farrell’s dismissal with the 6th Appellate District, California Appellate Court. The Case Summary is presented, as are links to the Docket, Scheduled Actions, Briefs, Disposition, Parties and Attorneys, Trial Court and E-mail Notification 6th Appellate District. On behalf of Plaintiff and Appellant John Mandurrago, Attorney Dennis Beougher (Lombardo & Gilles, LLP), will argue that Judge O’Farrell erred when he ruled that John Mandurrago had not exhausted his administrative remedies. In Mandurrago’s lawsuit filed in Monterey County Superior Court, Mandurrago sought general and punitive damages and approval of permits to demolish the former Palo Alto Savings & Loan building at Dolores St. and Seventh Av., S.E. Corner; plans include condominiums, stores and an underground parking garage.

CALIFORNIA APPELLATE COURTS
6th Appellate District

Case Summary
Trial Court Case: M97273
Court of Appeal Case: H034439
Case Caption: Mandurrago et al. v. City of Carmel-By-The-Sea
Case Type: CV
Filing Date: 07/01/2009

Docket (Note: Disregard Default notice, Court Error)

Scheduled Actions

Briefs

Disposition

Parties and Attorneys

Trial Court

E-mail Notification 6th Appellate District

‘MINUTES’ for Four Noteworthy 7 July 2009 City Council Agenda Items

“MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
July 7, 2009

VII. Consent Calendar
These matters include routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action.

K. Consideration of a Resolution extending the agreement with the City of Monterey to provide interim Fire Administration and Emergency Incident Management Services until January 31, 2010, in an amount not to exceed $94,500.

Carolyn Hardy pulled Item K; Agenda Item placed at the end of the meeting.

City Administrator Rich Guillen presented the Staff Report.

Mayor McCloud opened the meeting to public comment.

Carolyn Hardy clarified interim Services agreement from July 1, 2009 – January 31, 2010. She called for the removal of Paragraph 1.2 of the Term of Agreement regarding the exclusive negotiations with the City of Monterey. She expressed a desire for preservation of response time and a cost effective service model as close as possible to a stand alone Fire Department, if stand alone Carmel Fire Department infeasible.

Mary Ellen Thomas, member of the Carmel Residents Association Board of Directors, read a statement prepared by the Carmel Residents Association Board of Directors. CRA called for advantages and disadvantages of four fire service options, including consolation with City of Monterey, JPA with other cities, Cal-Fire and Stand Alone Department. She furthermore requested the issuance of a public report prior to January 31, 2010 appraising all four fire service options.

Jim Thompson, City of Monterey, clarified disagreement between City Attorney Don Freeman and Council Members ROSE and HAZDOVAC; that is, “good faith” effort referred to extension beyond January 1, 2010. Therefore, considerations of other fire services options not subject to “good faith” effort and permitted. However, from Monterey’s perspective, Monterey cannot indefinitely have 6 months interim agreements.

Council Member ROSE stated all options under consideration, “still open.”

Council Member ROSE moved adoption of Item K, with omission of second sentence in Section 1.2, seconded by Council Member TALMAGE, and carried unanimously.

COMMENT:
• The dissonance between the City Council communicating to the public that all fire service options are “still open” and the City Council simultaneously not communicating to the public a plan to determine which fire service option is advisable by January 1, 2010 is alarming.

X. Resolutions
A. Consideration of a Resolution amending the Carmel/Carmel Valley/Ambulance Joint Powers Agreement with Carmel Valley Fire District.

City Administrator Rich Guillen presented the Staff Report, including the fact that the Carmel Valley Fire District felt they were subsidizing the ambulance service; therefore they advocated the dissolution of the Joint Powers Agreement. After meetings, the Carmel/Carmel Valley/Ambulance Joint Powers Agreement is extended for one year and allows time for a succession plan for ambulance service if partnership eventually dissolved.
Note: Three ambulances total, one of which is in Carmel-by-the-Sea.

Council Member ROSE spoke to a Plan to reduce the $400,000 subsidy by “implementing responses at the mouth of the valley.”

Mayor McCloud opened the meeting to public comment.

Carolyn Hardy spoke about a whether or not the plan to reduce subsidy may be offset by increased costs for more administrative duties. She asked about the effects on the partnership if Carmel Valley voters vote down an assessment for fire service. She asked about whether or not Pebble Beach would be interested in forming a partnership in a JPA.

Council Member ROSE stated the City has been approached by three entities for potential partnership in JPA. The Carmel Valley Fire District is in the red by over $1 million. And administrative costs should not represent a significant increase in costs; therefore expect savings due to control of “purse strings.”

Mayor McCloud closed the meeting to public comment.

Council Member ROSE moved approval of a Resolution amending the Carmel/Carmel Valley/Ambulance Joint Powers, seconded by Council Member TALMAGE and carried by the following roll call:

AYES: COUNCIL MEMBERS: HAZDOVAC, ROSE, SHARP, TALMAGE & McCLOUD
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE

B. Consideration of a Resolution Ordering an Election, Requesting the County Elections Department to Conduct the Election, and Requesting Consolidation of the Election.

Consultant Brian Roseth presented the Staff Report.

Council Member TALMAGE asked about the 0.5 acre conservation easement Map and the 12-13 pages of Mitigation Measures in the voter pamphlet; only Question on the ballot card.

Mayor McCloud opened the meeting to public comment.

Barbara Livingston asked for the reading of the text of the ballot measure.

Skip Lloyd asked about the cost of the election.

Mayor McCloud closed the meeting to public comment.

City Attorney Don Freeman read the Question to be placed on the ballot.
Shall discontinuance and abandonment of the Flanders Mansion Property (APN 010-061-005) as public parkland, and authorization to sell the Flanders Mansion Property "with Conservation Easements and Mitigation" as passed on May 12, 2009 by the City of Carmel-by-the-Sea City Council by Resolutions No. 2009-30 through 2009-33, be approved?

City Administrator Rich Guillen stated that costs typically are about $8,000; however, the expectation is this election will cost more than $8,000.

Council Member ROSE moved approval of a Resolution Ordering an Election, Requesting the County Elections Department to Conduct the Election, and Requesting Consolidation of the Election, seconded by Council Member HAZDOVAC and carried by the following roll call:

AYES: COUNCIL MEMBERS: HAZDOVAC, ROSE, SHARP, TALMAGE & McCLOUD
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE

XI. Orders of Council
A. Receive a report and provide policy direction on the schematic design of the Forest Theater renovation project.

City Administrator Rich Guillen presented the report including three identified construction phases, as follows:
1. Performance Related Accommodations - stage (including grade level additions for CET) and seating are interrelated;
Performance Related Accommodations = $ 2,104,071

2. Audience Related Accommodations - audience support facilities for ticket sales, toilets, concessions, and site paths of travel are interrelated; and
Audience Related Accommodations = $ 936,395

3. Site Infrastructure Related Accommodations - electrical power, sound and lighting are interrelated
Site Infrastructure Related Accommodations = $ 319,248

Total cost approximately $3.4 million
Note: Total cost, $3,359,714

Anticipated Process: After approval of Schematic Design, then Design Development, then to Council, then finally Construction Phase.

Mayor McCloud opened the meeting to public comment.

Safwat Malek (Vice-President, Forest Theater Guild) spoke of meeting with the City Administrator as part of Forest Theater Guild and Forest Theater Foundation, his support of the Schematic Design and desire to complete the entire project as proposed in one phase, ideally.

Skip Lloyd read a statement adopted by the Carmel Residents Association Board of Directors objecting to approving a contract for Design Development with RFM Architects at this time mainly because of the lack of public review of the Schematic Design; public review which was previously promised by the City Administrator.

Carolyn Hardy spoke to the $3.4 million cost estimate; however, she observed no costs listed for many items, including an Environmental Impact Report, et cetera. Additionally, she addressed benches, wood fencing and carved “Forest Theater” entry arch and concerns about cost savings to make it affordable.

Stephen Moorer of the Forest Theatre Foundation and PacRep Theatre expressed his thanks to the City Administrator for inviting representatives of the user groups to inspect the Schematic Design and his support for the Schematic Design.

Mayor McCloud closed the meeting to public comment.

Council Member ROSE spoke about the need for quotes for essential items required for safety and ADA requirements. Even with phasing, $3.4 million “not doable by any reasonable measure.”

Mayor McCLOUD spoke to funding possible from Challenge Grants and Proposition 84 Funds for Performing Arts and Parks; however Proposition 84 Funds not currently funded by the State.

Council Member TALMAGE estimated a total of $4 million for project; the City therefore “cannot fund this project.” He suggested pursuing grant money and third party sources for funding. He expressed concerns about safety, ADA requirements and restrooms and bids for those three items.

Consensus of Council Members was in support of a determination of costs for safety measures, ADA requirements and restrooms and directed the City Administrator to meet with Bill Camille.

COMMENT:
• The consensus to scale the Forest Theatre renovation down from the McCann Project to a project involving safety measures, ADA requirements and restrooms speaks to the mismanagement of the Forest Theatre renovation process; that is, the City should have funded the Forest Theater Facility Master Plan, commissioned by the City and completed by local architect Brian Congleton in 2001. The Master Plan represented a comprehensive patron, user group and neighborhood impact “interrelationship” plan. Specifically, the elements of the Master Plan included Patron support systems, User group support systems, Neighborhood/Community impact concern areas, Maintenance & improvement needs and ADA Compliance. The total cost in 2001 dollars was $1,423,000.

(Source: Archived Videos, Regular City Council Meeting, July 7, 2009)

A Primer on Employment Discrimination & Sexual Harassment

ABSTRACT: With regard to Miller, Jane Kingsley v. City of Carmel-by-the-Sea et al. (M99513), information links are provided on Sex-Based Discrimination, Age-Based Discrimination, Sexual Harassment and Retaliation. NOTES involving the California Department of Fair Employment and Housing, the City of Pacific Grove and former Pacific Grove Police Chief Scott Miller are presented. A COMMENT is made regarding the City of Carmel-by-the-Sea’s failure to investigate employment discrimination and sexual harassment allegations promptly and apparent failure to proactively implement an anti-employment discrimination and anti-sexual harassment policy.

In Miller, Jane Kingsley v. City of Carmel-by-the-Sea et al. (M99513), Miller alleges sex-based discrimination, age-based discrimination, sexual harassment and retaliation in the workplace.

Information (links) on Title VII of the Civil Rights Act of 1964, Sex-Based Discrimination, Age-Based Discrimination, Sexual Harassment and Retaliation is provided, as follows:

Title VII of the Civil Rights Act of 1964
Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

Sex-Based Discrimination
Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of sex as well as race, color, national origin, and religion.

Age Discrimination
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age.

Sexual Harassment
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.

SEXUAL HARASSMENT

Retaliation
An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.

NOTES:
• The Fair Employment and Housing act (FEHA), at Government Code section 12965, subdivision (b), requires that individuals must exhaust their administrative remedies with the Department of Fair Employment and Housing by filing a complaint and obtaining a "right-to-sue notice" from the Department before filing a lawsuit under the FEHA.

The California Department of Fair Employment and Housing gave Jane Miller “the right to sue the city,” after Miller filed a complaint in July 2008, according to reporting in The Carmel Pine Cone.

•In contrast to the inactions of the City of Carmel-by-the-Sea, the City of Pacific Grove, under City Manager Jim Colangelo, hired an attorney to conduct an investigation into a police officer’s claims of discrimination, harassment and retaliation and issue a report regarding the allegations in 2007, according to reporting by The Carmel Pine Cone. In fact, City Manager Jim Colangelo stated “I want to get the facts,” “I want to know if these allegations are true. If they are true, there will be consequences for the people involved. We don’t tolerate this type of behavior.” Moreover, Mayor Dan Cort stated the City “won’t tolerate discrimination." “I can tell you that the City of Pacific Grove does not condone discrimination or harassment based on one’s race, gender, religion, or sexual orientation.”

• In 2003, Scott Miller, husband of Jane Miller, was fired as Pacific Grove police chief; after his firing by City Manager Ross Hubbard, Miller filed a wrongful termination claim against Pacific Grove (M69049, Miller, Scott vs. City of Pacific Grove) and was awarded a “substantial sum,” according to reporting by The Carmel Pine Cone. Scott Miller’s attorney was also attorney Michael Stamp.

COMMENT:
• Since the 20 May 2008 letter from Jane Miller’s attorney Michael Stamp to the Mayor Sue McCloud and City Council Members notifying them of City Administrator Rich Guillen’s behavior and seeking prompt action in response, the City apparently failed to respond and failed to investigate Miller’s allegations of employment discrimination and sexual harassment promptly. Accordingly, the City of Carmel-by-the-Sea appears to not be committed to investigate allegations of employment discrimination and sexual harassment promptly, maintain confidentiality, and prohibit retaliation against employees who report incidents.

Four Noteworthy 7 July 2009 City Council Agenda Items

ABSTRACT: Four noteworthy 7 July 2009 City Council Agenda Items, namely a Resolution extending the agreement with the City of Monterey to provide interim Fire Administration and Emergency Incident Management Services until January 31, 2010, a Resolution amending the Carmel/Carmel Valley/Ambulance Joint Powers Agreement with Carmel Valley Fire District, a Resolution Ordering an Election, Requesting the County Elections Department to Conduct the Election, and Requesting Consolidation of the Election and a report and provide policy direction on the schematic design of the Forest Theater renovation project. Selected excerpts from Agenda Items Summaries and Staff Reports are presented for Agenda Items. Informational COMMENTS are made on a selected Agenda Item.

AGENDA
Regular Meeting
Tuesday, July 7, 2009
4:30 p.m., Open Session
City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

Live and archived video streaming available

VII. Consent Calendar
These matters include routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action.

K. Consideration of a Resolution extending the agreement with the City of Monterey to provide interim Fire Administration and Emergency Incident Management Services until January 31, 2010, in an amount not to exceed $94,500.

Description: The City of Monterey has offered the City of Carmel-by-the-Sea an extension to the initial interim fire administration and emergency incident management (Duty Chief) services agreement through January 31, 2010. The initial agreement became effective on December 15, 2008 and expired on February 28, 2009. This agreement provided the City with the services previously rendered by the Pacific Grove Fire Department.

The initial agreement also allowed the City of Carmel-by-the-Sea time to evaluate the feasibility of a long-term contract with Monterey. On March 25, 2009, the City Council further reviewed this issue at a workshop where it received a staff report, heard public comment, and provided policy direction.

Overall Cost:
City Funds: FY 08-09: $11,250 per calendar month (current contract ending June 30, 2009)

FY 09-10: $13,500 per calendar month (beginning July 1, 2009)

The increase for the new contract is $2250.00 per month. Sufficient funds were appropriated in the adopted Fire Department FY 08-09 and FY 09-10 budget, Contractual Services (Account # 72053).

Staff Recommendation: Adopt the resolution.

X. Resolutions
A. Consideration of a Resolution amending the Carmel/Carmel Valley/Ambulance Joint Powers Agreement with Carmel Valley Fire District.

Description: The Carmel Valley Fire District is managed by the Salinas Rural Fire Protection District. Salinas Rural staff recently completed a financial analysis of the Carmel Regional Fire Ambulance (CRFA) operations, which showed some duplication of effort that caused CRFA costs to be higher than expected and placed both the Carmel Fire District and the City in the position of subsidizing each other from time to time, creating an imbalance on how revenues and expenses are shared. The CRFA Board of Directors reviewed the attached amended JPA and the Fire Services Agreement and recommended to their respective legislative bodies that the agreements be approved. The only action needed by the City is to approve the JPA.

Overall Cost: If managed appropriately, it is likely that the current City subsidy of $400,000 will be less in future years without reduction in ambulance response time or decline in ambulance service levels.

Staff Recommendation: Staff recommends approval of the Resolution amending the JPA with Carmel Valley Fire District.

JPA amendment (to be approved by the City and Carmel Valley Fire District)
The amendments are written to update and represent the way that CRFA will operate in real time from this point forward:
• Article 1 eliminates Big Sur from the authority since it is no longer a member agency;

• Article 8(a) requires that Authority Ambulance Units are located within the geographic boundaries of the City and Carmel Valley Services Region;

• Article 11 defines the timeline for the annual budget adoption for the upcoming fiscal year;

• Article 16(c) shifts the responsibility of fee collections to the City;

• Article 18 defines the term of the JPA agreement which becomes effective upon approval by both the City and the Carmel Valley Fire District and continue until June 30, 2009; and

• Article 21 allows for additional agencies to join the JPA.

Fire Services Agreement (to be approved by CRFA and Carmel Valley Fire District)
The salient business points of this agreement are as follows:
• The term of the agreement will commence on July 1, 2009 and end on June 30, 2010;

• Payments for services rendered by Carmel Valley Fire District will be paid on a monthly basis; and

• Costs for services rendered by either agency will be based on actual costs for utilization of personnel or fair market value equipment rental.

Effective July 1, 2009, the City staff will have administrative oversight of the CRFA. This includes annual budget preparation, accounts payable, payroll, human resources and agenda preparation. The Carmel Valley Fire District previously handled these responsibilities.

B. Consideration of a Resolution Ordering an Election, Requesting the County Elections Department to Conduct the Election, and Requesting Consolidation of the Election.

Description: This resolution will call for a special election to allow the City electors to vote on the discontinuance and abandonment of the Flanders Mansion Property as Public Park Land.

Overall Cost:
City Funds: Unknown at this time
Grant Funds: N/A

Staff Recommendation: Adopt the Resolution.

The Resolution contains the following provisions:
• A calling of the election and a request for consolidation with other elections

• A request for County services and an acknowledgment that the City will pay all costs

• The text of the ballot question for the ballot card

• A statement of what percentage of the votes constitutes approval of the ballot measure

• A request that the full text of the ballot measure, as set forth in an attachment to the Resolution, appear in the voter information pamphlet.

CITY OF CARMEL-BY-THE-SEA

BALLOT MEASURE – TEXT

Majority Vote

CITY OF CARMEL-BY-THE-SEA
Special Election
Consolidated with Statewide General Election

Majority Vote

Title:
APPROVE DISCONTINUANCE AND ABANDONMENT OF, AND AUTHORIZATION TO SELL, FLANDERS MANSION PROPERTY PUBLIC PARKLAND

Question:
Shall discontinuance and abandonment of the Flanders Mansion Property (APN 010-061-005) as public parkland, and authorization to sell the Flanders Mansion Property "with Conservation Easements and Mitigation" as passed on May 12, 2009 by the City of Carmel-by-the-Sea City Council by Resolutions No. 2009-30 through 2009-33, be approved?

Text:
The Flanders Mansion Property (APN 010-061-005) is an approximately 1.252 acre parcel located at 25800 Hatton Road in Carmel, Monterey County, California and situated within the Mission Trail Nature Preserve. This Ballot Measure approves the discontinuance and abandonment of the Flanders Mansion Property as public parkland and authorizes sale of the property with Conservation Easements and Mitigation. The City Council of the City of Carmel-by-the-Sea approved these actions on May 12, 2009 by adopting Resolutions No. 2009-30 through 2009-33. Before the City Council's authorization to discontinue, abandon and sell the Flanders Mansion property with Conservation Easements and Mitigation becomes effective, this ballot measure must be approved by a majority of voters in an election.

The Sale of the Flanders Mansion Property "with Conservation Easements and Mitigation is described in the Recirculated Draft Environmental Impact Report for the Sale of Flanders Mansion Property (SCH # 2005011108), dated January 2009, certified as revised in the Recirculated Final Environmental Impact Report, dated April 2009, by the City of Carmel-by-the- Sea City Council, by Resolution No. 2009-29 passed on Mary 12, 2009, as follows:

"This alternative would consist of recording conservation easements on certain portions of the Flanders Mansion Property in order to minimize potential impacts to the Lester Rowntree Arboretum and a number of existing trails that would need to be reconfigured as a result of the proposed project. Specifically, this alternative consists of applying a conservation easement (or reducing the parcel size) over portions of the Lester Rowntree Arboretum that are located within the boundaries of the Flanders Mansion parcel. This alternative would also consist of recording an easement or reducing the size along the eastern portion of the driveway to preserve existing trail access to the Mission Trail Nature Preserve (Serra Trail) and the Lester Rowntree Arboretum. A scenic/conservation easement covering the westerly/southwesterly boundary of the site to include areas bordering ESHA would be recorded to minimize potential biological impacts. The purpose of these easements would be to prevent a future property owner from erecting exterior elements or causing changes to the property within areas that are particularly sensitive, provide access to the Lester Rowntree Arboretum, and provide areas of the site that provide park benefits. These easements would restrict future development activities within portions of the site covered by the easement in order to reduce biological and aesthetic related impacts. Specifically, fencing, walls or other man-made features would be prohibited within the boundaries of the easements. These easements would run with the land and would be legally binding on any subsequent property owner. These easements are intended to reduce and/or avoid significant impacts due to the permanent loss of parkland, ensure that park benefits associated with the Property are preserved, provide continued public use of certain portions of the property, and protect environmental resources. The total land area covered by the easements would be approximately 0.5 acres. The total remaining area of the property under this alternative would be approximately 0.752 acres, and it is assumed that all conditions and mitigations identified in this RDEIR would be applicable. Figure 6-1 provides a graphical representation of the alternative parcel configuration and easements. Implementation of this alternative would retain existing park benefits associated with the Flanders Mansion Property, while still allowing the City to divest itself of the property. This alternative assumes that impacted trails would also be reconfigured and additional trail connections would be provided to address project impacts. This alternative is not use-specific; therefore, it is assumed that either a single family or low-intensity public/quasi-public use could occupy the property."

Areas to be subject to conservation easements are further shown on Figure 6-1 from the Recirculated Draft Environmental Impact Report, certified by the City of Carmel-by-the-Sea City Council as modified by the Recirculated Final Environmental Impact Report by Resolution Number 29 passed on May 12, 2009. Figure 6-1 appears below.


The mitigation measures included in the Sale with Conservation Easements and Mitigation are provided in the Mitigation Monitoring and Reporting Program approved by the City of Carmel-by-the-Sea City Council on May 12, 2009 by Resolution Number 2009-30. The Mitigation Monitoring and Reporting Program is to be recorded against the Flanders Mansion Property and will run with the land, binding future owners of the property, and provides as set forth below.

XI. Orders of Council
A. Receive a report and provide policy direction on the schematic design of the Forest Theater renovation project.

Description: Richard McCann of RFM Architects has nearly completed the schematic design for the Forest Theater Renovation Project. To complete the schematic design he must still do a field survey of the trees and obtain manufacturing information to determine whether the audience benches should be built on-site or fabricated off-site.

Overall Cost:
City Funds:
Performance Related Accommodations = $2,104,071
Audience Related Accommodations = $936,395
Site Infrastructure Related Accommodations = $319,248
Grant Funds: N/A

Staff Recommendation: Provide policy direction.

Important Considerations: RFM is prepared to continue as the renovation project architect. If they should remain the project architect, a contract must be approved by the City Council for design development.

Decision Record: At its April 7, 2009 meeting, the City Council requested that the project be separated into phases. RFM Architects has submitted a construction phasing proposal as part of the completed the schematic design.

RFM prepared a construction phasing proposal based on interrelated uses:
1. Performance Related Accommodations - stage (including grade level additions for CET) and seating are interrelated;

2. Audience Related Accommodations - audience support facilities for ticket sales, toilets, concessions, and site paths of travel are interrelated; and

3. Site Infrastructure Related Accommodations - electrical power, sound and lighting are interrelated

FISCAL IMPACT
RFM prepared cost estimates for the above three interrelated phases:
1. Performance Related Accommodations = $ 2,104,071

2. Audience Related Accommodations = $ 936,395

3. Site Infrastructure Related Accommodations = $ 319,248

The construction phases are essentially cost packages that collectively make up the entire project. The City Council may decide to complete one, two or all three of the construction packages. If the renovation project is to proceed, the next phase will be design development. The recently adopted Triennial Budget does not include any funding for the design development phase of the project. Based on the City Council’s policy direction, the City must amend the budget to include the next phase of the project.

COMMENTS
• Bonds, Insurance and Prime Contractor Fees T.B.D.

• REGULAR CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
December 2, 2008

X. Resolutions
A. Receive a status report on the Forest Theater Renovation and adopt a Resolution entering into an agreement with RFM Architects for architectural services in an amount of $131,000.

Since the passage of the aforementioned Resolution, the City has expended $38,226.86 to R.F. McCann & Company Architects, as follows:

118096 6/16/09 R.F. MCCANN & COMPANY ARCHITECTS $33,226.86 01 89429 FOREST THEATER MASTER PLAN PROJECT DESIGN SERVICES

117184 1/20/09 R.F. MCCANN & COMPANY ARCHITECTS $5,000.00 01 89429 FOREST THEATER MASTER PLAN DESIGN WORK

The Schematic Design was to be completed in three months, or approximately March 2009, and construction was to commence by April 2009, according to the Staff Report by City Administrator Rich Guillen, as follows:

CITY OF CARMEL-BY-THE-SEA
STAFF REPORT
TO: MAYOR McCLOUD AND COUNCIL MEMBERS
FROM: RICH GUILLEN, CITY ADMINISTRATOR
DATE: DECEMBER 2, 2008
SUBJECT: RECEIVE A STATUS REPORT ON THE FOREST THEATER RENOVATION AND ADOPT RESOLUTION ENTERING INTO AN AGREEMENT WITH RFM ARCHITECTS FOR ARCHITECTURAL SERVICES IN AN AMOUNT OF $131,000.

The estimated time to complete the schematic design is three months. RFM recognizes the urgency of moving the project along quickly so that the renovation can be completed by the 2010 season (or the 100th anniversary of the Forest Theater).

FISCAL IMPACT
The total base fee for RFM Architects services is $131,000, which includes survey work and preliminary civil design. Not included in the base fee is a boundary survey of the Forest Theater property, which will cost an additional $10,000 (on a time and material basis). Other reimbursable costs such as travel, meals, etc. also will be in addition to the base fee.

SUMMARY
An agreement on the revised conceptual plan is very important prior to moving forward with schematic design. Once schematic design commences, it becomes much more difficult (and more costly) to make revisions to the agreed scope of the project. With the goal of completing the renovation by May 2010, the project must commence post haste so construction can be under way by April 2009.