COMMENTARY: THE CASE FOR THE REMOVAL OF CITY ADMINISTRATOR RICHARD I. GUILLEN

The City of Carmel-by-the-Sea’s Code of Ethics states, as follows:

Article I. Code of Ethics
2.52.010 Code of Ethics.

As public employees we are entrusted with the confidence of those we serve to fulfill the responsibilities of our roles. Our actions are deemed representative of those we serve and our function, therefore, carries with it a greater responsibility than that of the private enterprise employee. Our system of government is viewed by the public through our acts as we fulfill the demands of our positions. We must demonstrate competency, integrity, honesty, courtesy and fairness in all relationships, private and public, to best represent the type of government desired by all. We have a patriotic duty to fulfill our roles in the highest standard possible for the purpose of assuring exemplary government for all people. A departure from this ideal creates an injustice for all. (Ord. 87-1 § 2, 1987).
(Source: Carmel-by-the-Sea Municipal Code)

The Employment Agreement between City Administrator Richard I. Guillen and the City of Carmel-by-the-Sea states, in part, as follows:

EMPLOYMENT AGREEMENT
THIS AGREEMENT is between the CITY OF CARMEL-BY-THE-SEA ("CITY") and RICHARD I. GUILLEN ("EMPLOYEE")

AGREEMENT
A. DUTIES
1. CITY agrees to employ RICHARD I. GUILLEN as City Administrator of the City of Carmel-by-the-Sea to perform the functions and duties specified in the ordinances and resolutions of the CITY, and to perform other legally permissible and proper duties and functions as the City Council may from time to time assign.

2. EMPLOYEE shall perform his duties to the best of his ability in accordance with the highest professional and ethical standards of the profession and shall comply with all rules and regulations established by the CITY.

EVIDENCE:
Assertion, “under penalty of perjury under the laws of the State of California,” by City Administrator Rich Guillen:
“I am not an attorney and have no legal training.” (SUPPLEMENTAL DECLARATION OF RICH GUILEN, November 13, 2009, page 69, Miller 2 of 2)

Guillen’s Assertion contradicted by Michael Stamp, Attorney representing former Human Resources Manager Jane Miller:
"Mr. Guillen’s statement that he has “no legal training” is not truthful: Mr. Guillen attended law school for two years, speaks frequently about his experience there, and claims to have a continuing interest in all things legal. He also has a great deal of familiarity in public agency litigation, including direct involvement in extensive personnel litigation with Liebert Cassidy while Guillen worked as a top official in the City of Seaside City Manager’s Office. Guillen’s legal training comes from law school, direct professional managerial involvement in two different cities, and on the job training as the City’s top professional administrator."

"Mr. Guillen’s claim of ignorance of the law says volumes about the insufficiency of the City’s showing and the lack of credibility."
(PLAINTIFF’S CLOSING MEMORANDUM OF POINTS AND AUTHORIES IN REPLY TO CITY’S BRIEFING, December 4, 2009, page 126, Miller 2 of 2)

Assertions, “under penalty of perjury under the laws of the State of California,” by City Administrator Rich Guillen:
Greg D’Ambrosio (“Employee Number 1”)
"In 2003, Greg D’Ambrosio was the Assistant City Administrator and had worked for the City for 23 years. I do not recall Mr. D’Ambrosio ever making any allegation or claims that he felt he was being harassed or treated in any particular manner because of member in any protected status. Mr. Stamp contacted me in 2003, told me he represented Mr. D’Ambrosio and that Mr. D’Ambrosio wanted to retire and receive the golden handshake. Mr. Stamp did not make any allegations of discrimination on Mr. D’Ambrosio’s behalf, and I understood that Mr. D’Ambrosio had retained Mr. Stamp to help him navigate the complexities of PERS."
(DECLARATION OF RICH GUILLEN, October 13, 2009, page 235 – 236, Miller 1 of 2)

Brian Donoghue (“Employee Number 2”)
"In 2003, Brian Donoghue was employed as the City’s Community and Cultural Director and had worked for the City for 13 years."

"Mr. Stamp contacted me in 2003, told me her represented Mr. Donoghue and that Mr. Donoghue wanted to retire and receive the golden handshake. Mr. Stamp did not make any allegations of discrimination on Mr. Donoghue’s behalf, and I understood that Mr. Donoghue had retained Mr. Stamp to help him navigate the complexities of PERS."
(DECLARATION OF RICH GUILLEN, October 13, 2009, pages 236 – 237, Miller 1 of 2)

Margaret Pelikan (“Employee Number 3”)
"In August 2006, Mr. Stamp emailed me that he represented Margaret Pelikan, who at that time was employed as the City’s Library Director. Mr. Stamp stated in the email that Ms. Pelikan was turning 55 in June and that she would like to retire with the golden handshake and receive paid leave and annual performance bonus…Prior to being contacted by Mr. Stamp on Ms. Pelikan’s behalf, Ms. Pelikan had never made any allegation, to my knowledge, that she was being treated differently based on her gender or forced to retire. I understood that Ms. Pelikan had retained Stamp to help her navigate the complexities of PERS and of obtaining paid leave within the legal constraints applicable to public employment."
(DECLARATION OF RICH GUILLEN, October 13, 2009, pages 237 – 238, Miller 1 of 2)

Sandy Farrell (“Employee Number 4”)
"In February 2008, Mr. Stamp contacted me by email stating that he represented Sandy Farrell, who was working as an Executive Assistant for the City...Mr. Stamp conveyed to me that Ms. Farrell wanted to retire and wanted the golden handshake. At this point, Ms. Farrell had worked for the City for 25 years."

"...Mr. Stamp never mentioned during any of our discussions regarding Ms. Farrell, any “possible allegation” or “possible claims” of Ms. Farrell. Nor had Ms. Farrell made any claims or allegations about being “forced into early retirement.” …I understood that Ms. Farrell had retained Stamp to help her navigate the complexities of PERS and of obtaining paid leave within the legal constraints applicable to public employment."
(DECLARATION OF RICH GUILLEN, October 13, 2009, pages 238 – 239, Miller 1 of 2)

"...I viewed Mr. Stamp’s involvement in the retirements of Mr. D’Ambrosio and Mr. Donoghue as beneficial for the City, because the employees wanted to retire, and the City had put in place a golden handshake in order to encourage early retirements, and Mr. Stamp was simply facilitating a result that was positive for the City."

"I viewed Mr. Stamp’s involvement as beneficial for the City, because he was facilitating early retirements that were saving the City in personnel costs."
(SUPPLEMENTAL DECLARATION OF RICH GUILEN, November 13, 2009, page 69, Miller 2 of 2)

Guillen’s Assertions Contradicted by Michael Stamp, Attorney representing former Human Resources Manager Jane Miller:
EVIDENTIARY OBJECTIONS TO THE GUILLEN DECLARATION, October 22, 2009:
OBJECTION NO. 1
Statement objected to: “In August 2006, Mr. Stamp emailed me that he represented Margaret Pelican, who at that time was employed as the city’s Library Director. Stamp stated in the email that Pelikan was turning 55 in June and that she would like to retire with the golden handshake and would like to receive paid leave and her annual performance bonus.” (Guillen Declaration)

"Grounds for objection: Mr. Guillen’s characterization of the email from Stamp is not accurate and is hearsay...The email makes no mention of the “golden handshake,” mentions a possible “release of claims,” and seeks, inter alia, 18 months’ salary and benefits to be paid by the City. The characterization by Guillen is undeniably inaccurate."

OBJECTION NO. 2
Statement objected to: “In February 2008, Mr. Stamp contacted me by email stating that he represented Sandy Farrell, who was working as an Executive Assistant for the City, and that he would like to meet with me to discuss her employment. Mr. Stamp conveyed to me that Ms. Farrell wanted to retire and wanted the golden handshake.” (Guillen Declaration.)

"Mr. Guillen’s characterization of the email is hearsay and misleading. Mr. Guillen’s testimony inserts this sentence into the email: “Ms. Farrell wanted to retire and wanted the golden handshake” (which is not in the email and was not communicated). He uses that made-up sentence to take the place of the actual text...'I am available to come to your Office, or to meet here in Monterey if that is more convenient.'"
(EVIDENTIARY OBJECTIONS TO THE GUILLEN DECLARATION, October 22, 2009, pages 286 – 287, Miller 1 of 2)

"Because that claim by the City was meritless, the City then tried to claim that the 2003 to 2008 representation of four senior City employees by Mr. Stamp did not involve claims by the employees, or that the City offered the employees a “golden handshake” or that the employees hired Stamp because of the complicated PERS issues. Miller demonstrated that the City was not telling the truth, that the employees raised claims of a “hostile” work environment and of gender-based discrimination, as well as claims of forced retirement, and that the emails relied upon by Guillen as proof did not say what Guillen claimed."
(PLAINTIFF’S CLOSING MEMORANDUM OF POINTS AND AUTHORIES IN REPLY TO CITY’S BRIEFING, December 4, 2009, page 125, Miller 2 of 2)

"In 2002, I represented the first of the four Carmel employees referenced in the pleadings filed in this case. At no point did I communicate to Mr. Guillen or anyone that my clients wanted “Golden Handshakes,” or that I was retained as a PERS expert. The claims of my clients went far beyond the handshakes, and I have never tried to be or act as a PERS expert. Mr. Guillen told me that Jane Miller was the most knowledgeable person at Carmel City Hall about PERS and she handled the PERS issues in all four settlements, including the necessary City Council approvals."

"There is no doubt that the four Carmel employees all raised significant claims that went beyond what the City had offered them, and that Mr. Guillen was fully aware of those claims and issues. The claims included hostile work environment, Mr. Guillen’s favoritism toward select females, and age and gender discrimination. Mr. Guillen and I talked about those claims, and he and I negotiated settlements. There is nothing in my history with Mr. Guillen or in any other communication that ever took place that would reasonably suggest to Mr. Guillen that I was not willing to litigate those very claims against the City if they could not be settled."
(DECLARATION OF MICHAEL W. STAMP, December 4, 2009, page 148 -149, Miller 2 of 2)

Guillen’s Assertions Contradicted by former Human Resources Manager Jane Miller:
"Between 2003 and 2008, I participated in the matters raised by Mr. Stamp on behalf of the four other senior employees who hired Mr. Stamp as their attorney to address serious personnel matters. I spoke directly with Richard Guillen on those matters. In all four matters, I was the person who handled the PERS issues for the City and the employees. The PERS issues were not complicated issues, and there would have been no need for an employee to hire an attorney on those PERS matters. Mr. Guillen never indicated in any way to me that Mr. Stamp was working on PERS issues."

"I knew while the four employee matters were being negotiated that at least two of the four senior employees raised serious issues about hostile work environment and discriminatory treatment in the workplace, and that the other two raised issues about punitive and arbitrary treatment by the City as part of their issues about being forced from their employment by the City. I discussed those matters with Mr. Guillen."

"...These four settlements were not “golden handshakes,” contrary to what Guillen has now claimed in this litigation. I am the person who prepared the financial analysis for each of the settlements, and I presented the information to Guillen. All four matters involved significant compensation, including cash payments or severance pay, that were not available otherwise."
(DECLARATION OF JANE KINGSLEY MILLER, December 4, 2009, page 155 – 156, Miller 2 of 2)

Guillen’s Assertions Contradicted by Honorable Larry E. Hayes, Judge, Superior Court of Monterey County:
"The City had actual knowledge of any claim of a potential conflict beginning in 2003 when Mr. Stamp represented the first senior City employee in his employment claims against the City. Between 2003 and 2008, Mr. Stamp represented an additional three senior City employees in their employment claims against the City."

"...Mr.Stamp, over a period of five years, represented four senior City employees with claims similar to Ms. Miller."

"The Court finds that City Administrator Richard Guillen and City Attorney Don Freeman knew about the former representations during the pertinent time period. The weight of the evidence shows that those individuals would have had specific knowledge about those former representations..." (ORDER AFTER HEARING, Hon. Larry E. Hayes, February 3, 2010, pages190 - 191, Miller 2 of 2)

Conclusion

In closing, the weight of the evidence shows that City Administrator Rich Guillen violated the City of Carmel-by-the-Sea’s Code of Ethics by not demonstrating “competency, integrity, honesty, courtesy and fairness in all relationships, private and public, to best represent the type of government desired by all” and violated his Employee Agreement with the City by not adhering to “the highest professional and ethical standards” and complying with “all rules and regulations established by the CITY.” Moreover, City Administrator Rich Guillen’s dishonesty, disrespect for the law, specifically the rights of city employees, and failure to take responsibility for his unprofessional and unethical conduct demonstrate that he cannot continue in a position of public trust. Therefore, it is incumbent on the City Council to meet in closed session and vote to terminate City Administrator Rich Guillen from employment with the City of Carmel-by-the-Sea.

NOTE: Jane Miller, former Human Resources Manager, was the fifth senior city employee to hire attorney Michael Stamp and make serious claims against the City. The first four matters settled, with the Mayor and City Council agreeing to pay in excess of $500,000 total compensation between 2003 and 2008. Recently, the Mayor and City Council unanimously agreed to pay in excess of $600,000 total compensation to Jane Miller.