PART I: City’s Harassment Prevention Policy No. C93-02

ABSTRACT: Today, the City of Carmel-by-the-Sea’s Harassment Policy is reproduced as PART I. Interestingly, as it pertains to Human Resources Manager Jane Miller and her lawsuit against the City for sex-based and age-based employment discrimination, sexual harassment in employment and retaliation, the only section relevant to the City Administrator as “alleged harasser” is, as follows: If the alleged harassment continues after using the informal process, or if the offended employee chooses not to follow the informal process the employee shall file a formal, written complaint, pursuant to this Policy, with the Personnel Officer who shall conduct a formal investigation. Copies of the completed investigative report shall be distributed as follows:
3. If the alleged harasser is the City Administrator: The report shall be given to the City Council’s Personnel Committee. The Committee shall review the findings and make recommendations, if any, to the entire City Council.
Tomorrow, PART II will present questions on the City’s Harassment Policy emailed to the City and the City’s response.

CITY OF CARMEL-BY-THE-SEA

CITY POLICY NO. C93-02

HARASSMENT PROHIBITED

PURPOSE

The policy of the city of Carmel-by-the-Sea is that harassment in any form in the workplace is unacceptable and will not be condoned or tolerated. The purposes of this Policy are to provide working conditions free of any form of harassment; to establish a procedure by which individuals who feel they have been harassed in any manner can bring their complaint(s) to an appropriate authority without fear of retaliation; to establish a procedure by which complaints of harassment are promptly, thoroughly and fairly investigated; and to insure that individuals who are found to have violated this policy will be subjected to disciplinary action that is commensurate with the severity of the offense.

POLICY

The City of Carmel-by-the-Sea prohibits any form of harassment and will not tolerate, condone or trivialize such actions by any employee, regardless of employment status. Additionally, such conduct is a violation of federal and state laws. Employees, applicants for employment, and others are to be free from harassment on the basis of race, religion, color, national origin, ancestry, handicap, disability, medical condition, marital status, sexual orientation, sex, pregnancy, age, or for asserting family care leave rights.

All employees who initiate or participate in the investigation of a compliant are protected from retaliation from any employee. Retaliation will be considered a serious act of misconduct.

Disciplinary action, up to and including termination, will be imposed in accordance with the established disciplinary process for behavior proven to have taken place in violation of this Policy.

Employees committing harassment as defined in this Policy are deemed by the City to be acting outside the scope of their employment.

APPLICATION OF POLICY

This Policy applies to all officers and employees of the City of Carmel-by-the-Sea, including, but not limited to, full-time and part-time employees, permanent and temporary employees, employees covered or otherwise exempted from personnel rules or regulations, and employees working under contract for the City. For the purposes of this Policy, “employee” is defined as each of the above.

This Policy also applies to elected officials, their appointees and volunteers.

Harassment includes conduct directed by men toward women, men toward men, women toward men, and women toward women.

DEFINITION

Harassment includes, but is not limited to:

1. Verbal Harassment - For example: epithets, derogatory comments or slurs on the basis of race, religion, color, national origin, ancestry, handicap, disability, medical condition, marital status, sexual orientation, sex, pregnancy, age, or for asserting family care leave rights.

2. Physical Harassment - For example: assault, impeding or blocking movement, or any physical interference with normal work or movement when directed at an individual on the basis of race, religion, color, national origin, ancestry, handicap, disability, medical condition, marital status, sexual orientation, sex, pregnancy, age, or for asserting family care leave rights.

3. Visual Forms of Harassment - For example: derogatory posters, notices, bulletins, cartoons, or drawings on the basis of race, religion, color, national origin, ancestry, handicap, disability, medical condition, marital status, sexual orientation, sex, pregnancy, age, or for asserting family care leave rights.

4. Sexual Favors – Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which is presented as an employment condition, unreasonably interferes with an individual’s work performance or creates an offensive work environment.

EMPLOYEE OBLIGATIONS

Employees are encouraged and have an obligation to:

1. Promptly report what they believe to be harassing behavior to a supervisor, manager, administrator, or the Personnel Officer.

2. Cooperate in any investigation.

3. Refrain from filing any complaint or report of harassment know to, or believed by, the employee to be without merit.

RETALIATION

All employees are assured that they may make such reports and participate in any investigation without fear of retaliation by the City, department management, their immediate supervisor, or any other employee. Retaliation will be considered a serious act of misconduct. Anyone found to have committed any act(s) of retaliation will be subject to the applicable disciplinary process, up to and including termination.

COMPLAINT PROCEDURE

Anyone who believes they have been subjected to any form of harassment should attempt to immediately resolve the compliant informally. The goal is to stop the harassing behavior promptly and establish a good working environment.

The Personnel Officer shall:

1. Be notified of all complaints of harassment

2. Investigate all written complaints of harassment

3. Document all complaints of harassment

If the Personnel Officer is the subject of the complaint, the matter will be investigated by the Assistant City Administrator.

For the purposes of this procedure ‘workdays’ shall include Monday through Friday, 8:30 a.m. – 5:00 p.m.., exclusive of holidays.

Informal Process

The following steps are recommended to informally address concerns and/or complaints of harassment:

STEP 1

1. The employee should attempt to resolve the issue informally within two (2) workdays of the alleged incident, by expressing his/her discomfort with the behavior to the offender in a constructive manner. If the employee would like support, he/she may seek support from:

a. His/her immediate supervisor

b. Any supervisor and manager within or outside the department

c. Department Manager

d. Personnel Officer

e. Assistant City Administrator

STEP 2

1. If the employee feels Step 1 is inappropriate, too intimidating or threatening, the employee may, within two (2) workdays of the alleged incident, request his/her immediate supervisor to arrange for:

a. A confidential meeting, scheduled within two (2) workdays of the request, where the employee can present his/her complaint to the harassing employee in the presence of their immediate supervisor(s). The complainant, if requested, may have a support person of his/her choice attend this meeting.

1) If the immediate supervisor(s) is/are identified as the harassing employee, the Personnel Officer shall arrange for and conduct this meeting.

a) If the Personnel Officer is identified as the harassing employee the Assistant City Administrator shall arrange for and conduct this meeting.

b. The results of this meeting shall be documented in writing and forwarded to the Personnel Office.

STEP 3

1. If the employee feels Step 2 is inappropriate, too intimidating or threatening, the employee may, within two (2) workdays of the alleged incident, request his/her Department Manager to arrange for:

a. A confidential meeting, scheduled within two (2) workdays of the request, where the employee can present his/her complaint to the harassing employee in the presence of their Department Manager(s). The complainant, if requested, may have a support person of his/her choice attend this meeting.

1) If the Department Manager(s) is/are identified as the harassing employee, the Personnel Officer shall arrange for and conduct this meeting.

a) If the Personnel Officer is identified as the harassing employee, the Assistant City Administrator shall arrange for and conduct this meeting.

b. The results of this meeting shall be documented in writing and forwarded to the Personnel Office.

Formal Process

If alleged harassment continues after using the informal process, or if the offended employee chooses not to follow the informal process, the employee:

1. Shall file a written compliant with the Personnel Officer using the City’s Harassment Complaint Form. This written complaint shall be filed within ten (10) workdays of the incident. As employee’s failure to report the occurrence of the alleged harassment within the ten-workday period may be deemed a voluntary waiver of any City action.

a. The employee may seek the assistance from a support person of his/her choice when preparing the written complaint.

Within three (3) workdays of receipt of the completed Harassment Complaint Form the Personnel Officer shall meet with the complainant and, if requested, the complainant’s support person, and:

1. Inform the complainant about the City’s Harassment policies and complaint procedures and answer any questions that the complainant may have regarding the City’s policy;

2. Inform the complainant about the other available options such as filing with the state and federal compliance agencies;

3. Inform the complainant that under the City’s procedure, complaints may be considered untimely if the written compliant was not filed within (10) workdays of the alleged incident, and that allegations brought to state or federal compliance agencies may have different filing time limitations which should be confirmed by the complainant with the agencies;

4. Inform the complainant that while every reasonable effort will be made to protect the confidentiality and privacy of the individuals involved, the conduct of an investigation requires that the alleged harasser be informed of the allegations, and that witnesses be interviewed;

5. Listen to the complainant’s allegations and discuss the actions complained of with discretion, sensitivity and due concern for the dignity of everyone involved;

6. Ask the complainant what remedies he/she feels would resolve the complaint;

7. Advise the complainant that the meeting will be documented in writing, assigned a case number and filed in the Harassment Complaint File under the security of the Personnel Officer.

Within three (3) workdays of conducting the meeting with the complainant, the Personnel Officer shall schedule a meeting with the person who allegedly engaged in the harassment and:

1. Inform him/her of the basis for the complaint and the right to be represented by an individual of his/her choice through the process;

2. Give him/her an opportunity to respond to the complaint;

a. This person shall be given ten (10) workdays to respond in writing to the allegations and identify witnesses.

3. Inform him/her that if a response to the complaint is not received within ten (10) workdays, the complaint may be considered valid, and the appropriate disciplinary action may be taken in accordance with the applicable procedures outlined in the Municipal Code of the City of Carmel-by-the-Sea.

a. Disciplinary action is subject to the appropriate appeals process.

INVESTIGATION GUIDELINES

Investigations will be timely and as extensive as required, based upon the nature of the allegations. All persons named as potential witnesses and those who may have information relevant to the issues of the complaint will be contacted and interviewed during the course of the investigation.

All investigations shall be documented in writing and will be handled with discretion, sensitivity and due concern for the dignity to those involved. Every reasonable effort will be made to restrict information on the specifics of the complaint to those who are participating in the investigation: the complainant, the alleged harasser, witnesses, and department management.

All persons contacted or interviewed during the investigation will be requested not to discuss the subject matter of the investigation in order to protect the privacy of all those participating in the investigation.

If during the course of the investigation, the alleged harassment is reported to be continuing, the Personnel Officer shall notify the Assistant City Administrator who shall take such emergency or temporary action as may be necessary or appropriate under the circumstances.

1. It is the policy of the City of Carmel-by-the-Sea that if the person alleged to be engaged in the harassment is the complainant’s supervisor, the complainant shall be removed from direct supervision of that supervisor and that supervisor shall not participate in performance reviews of the employee, pending the outcome of the investigation.

This action shall not be considered punitive but shall be considered a protective measure for all involved.

If, at the conclusion of the investigation, it is found that harassment occurred, the Personnel Officer shall forward the findings, which are not subject to appeal, along with any recommendations to the appropriate management level for implementation of the disciplinary process, if any.

1. The type of disciplinary action recommended shall be commensurate with the severity of the offense and in accordance with the City’s approved disciplinary action procedures, and must result in prompt and effective remedial actions.

a. Disciplinary action is subject to the applicable appeals process.

At the conclusion of the investigation the complainant(s) shall be advised by the Personnel Officer of the disposition of the complaint. If it has been determined that harassment has occurred the complainant(s) shall be notified regarding:

1. Steps taken to correct the harassment;

2. Action the complainant should take if the harassing behavior recurs;

If discipline is imposed on the harasser, the specific manner of discipline imposed shall not be communicated to the complainant.

Supervisory and management personnel shall conduct follow-up inquiries with the involved employees to determine if the alleged conduct has stopped or has resumed. These inquiries shall be documented in writing.

COMPLAINTS AGAINST VOLUNTEERS, AND/OR CITY COUNCIL APPOINTEES

This policy applies equally to volunteers, appointees of the City Council including members of Boards, Commissions and Committees, the City Administrator, the City Attorney, the City Engineer, and the City Treasurer.

Employees who believe they have been harassed by any of the above shall notify the Personnel Officer who shall first try to resolve the matter informally.

Any employee who files a complaint against the above officials is assured of protection against retaliation by that official under City policies as well as state and federal regulations.

Informal Process: The following steps are recommended to informally end the harassment:

1. Resolve the complaint informally by expressing his/her discomfort with the behavior to the offender in a constructive manner. If the employee would like support, he/she may seek support from:

a. Department Manager

b. Assistant City Administrator

c. Personnel Officer

If the alleged harassment continues after using the informal process, or if the offended employee chooses not to follow the informal process the employee shall file a formal, written complaint, pursuant to this Policy, with the Personnel Officer who shall conduct a formal investigation. Copies of the completed investigative report shall be distributed as follows:

1. If the alleged harasser is a volunteer: The report shall be forwarded to the appropriate management employee in charge of supervising the volunteer who shall take appropriate action, if any.

2. If the alleged harasser is a member of a Board, Commission, or Committee, or is the City Attorney, the City Engineer, or City Treasurer: The report shall be given to the Mayor, and City Administrator. The Mayor will oversee the implementation of appropriate disciplinary action, if any.

3. If the alleged harasser is the City Administrator: The report shall be given to the City Council’s Personnel Committee. The Committee shall review the findings and make recommendations, if any, to the entire City Council.

COMPLAINTS AGAINST ELECTED OFFICIALS

This policy applies equally to the Mayor and members of the City Council. Employees who believe they have been harassed by any of the above shall notify the Personnel Officer, who shall first try to resolve the matter informally.

Any employee who files a complaint against the above officials is assured of protection against retaliation by that official under City policies as well as state and federal regulations.

Informal Process: The following steps are recommended to informally end the harassment:

1. Resolve the complaint informally by expressing his/her discomfort with the behavior to the offender in a constructive manner. If the employee would like support, he/she may seek support from:

a. Department Manager

b. Assistant City Administrator

c. Personnel Officer

d. City Administrator

COMPLAINTS AGAINST ELECTED OFFICIALS

Formal Process:

If alleged harassment continues after using the informal process, or if the offended employee chooses not to follow the informal process, the employee shall file a formal, written complaint, pursuant to this Policy, with the Personnel Officer who shall conduct a formal investigation.

If it becomes clear that an allegation against the Mayor and/or a member of the City Council appears to have substance and an internal resolution is not possible, the complainant will be so notified and referred to the state and federal compliance agencies. This referral will be made because the City has no administrative control over elected officials. Consequently, were remedial action found to be appropriate, the City would be unable to provide an effective remedy to the complainant.

STATE AND FEDERAL COMPLIANCE AGENCIES

Nothing in this policy shall be interpreted so as to deny the right of any employee who believes he/she has been harassed to file a compliant with the state and /or federal compliance agencies and/or in state of federal court. However, time limits for filing complaints with compliance agencies vary and employees should check directly with those agencies for specific information.

The state and federal compliance agencies may be contacted at the following addresses:

(State) Department of Fair Employment and Housing
111 North Market Street, #810
San Jose, CA. 95113-1102
(408) 277-1264

(Federal) Equal Employment Opportunity Commission
901 Market Street, Suite 500
San Francisco, CA. 94103
(415) 744-6500 or 1 (800) 669-3362