Sunday, March 20, 2016

STEPHANIE ATIGH, ATTORNEY AT LAW, WORKPLACE INVESTIGATIONS, INVESTIGATION & INVESTIGATIVE REPORT: Acacia Way Berm, Construction & Removal, Public Works Department, Total Taxpayer Expenditure $3970.63

ABSTRACT: On December 23, 2015, STEPHANIE ATIGH, ATTORNEY AT LAW, WORKPLACE INVESTIGATIONS, wrote a letter to Police Chief Michael Calhoun, Interim City Administrator, serving to “record our Agreement of the terms and conditions of Stephanie Atigh’s retention” involving “a workplace investigation involving allegations involving the Public Works Department of the City of Carmel-by-the Sea.” The INVESTIGATIVE REPORT, dated January 29, 2016, states “On December 17, 2015, City resident Barbara Buikema emailed Mayor Jason Burnett to inquire about City employees constructing a berm at or near her neighbor's property on Acacia Way which she described as "a private lane." Buikema noted that the property belonged to City Council Member Victoria Beach."
1. Acacia Way is a private road that has never received City Public Works services or street maintenance in at least twenty years prior to December 17, 2015.
2. On November 17, 2015, Victoria Beach asked Rob Culver to inspect her property on Acacia to show him erosion damage near her property caused by storm water runoff from Flanders and to seek City assistance with this matter.
3. On November 18, 2015, Victoria Beach asked Jesse Garibay to inspect her property on Acacia to identify ways to solve the problem of storm waters from Flanders eroding her property. At that time Garibay told Beach that a berm near her property would solve the problem.
4. In an email dated November 18, 2015, Victoria Beach asked Rob Culver to consider asphalt berms to reduce debris problems in winter storms on Acacia from storm waters coming from Flanders and to "factor it into department decisions about the repair list."
5. Victoria Beach was aware that Acacia Way is a private road which does not normally receive city services. She believed that because the storm runoff on Acacia originated from Flanders, a city right of way, that it was appropriate to ask the City for assistance.
6. Rob Culver asked his supervisor Rob Mullane how to respond to Beach's request because he wanted to provide good customer service, he didn't know how to respond to the councilmember's request, and the runoff from the public right of way (Flanders) was causing the erosion at the Beach property.
7. Although Rob Mullane did not do a site visit, he had been told that Acacia Way was a private road.
8. Rob Mullane believed that Culver was seeking his direction regarding Beach's request because of the sensitive nature of a councilmember requesting city services and because Culver or Garibay, or both, felt pressured to expedite Beach's request.
9. Rob Mullane was not aware that the berm requested by Beach would be constructed on private property (Acacia Way) or adjacent to Beach's home. Rather, Mullane assumed that the work would be performed on city right of way to remedy the issue of water draining onto Acacia Way and that was the basis for his approval.
10. On November 19, 2015, Mullane authorized Culver to place Beach's request for a berm on the customer service list, which Culver did.
11. On November 19, 2015, Culver received an email from Mullane notifying him that Calhoun was aware of the work request and Mullane's approval. Culver shared that information with Garibay. Culver and Garibay believed that Mullane and Calhoun approved the work.
12. On November 19, 2015, Mullane forwarded to Chief Calhoun the November 18, 2015, email from Victoria Beach asking that Culver consider her request for a berm to solve the water runoff problems on Acacia. Mullane's message to Calhoun reflects Mullane's understanding that Public Works staff felt "pressure” from Beach to expedite her request. Mullane also forwarded Culver's email to Beach informing her that her request would be placed on the department's work list.
13. Chief Calhoun was never informed that the request from Victoria Beach involved City crews building a berm on Acacia Way or near her property. Calhoun believed he was being notified about Beach's request because Public Works staff felt that Beach wanted this work to receive priority in scheduling.
14. Culver assigned Jesse Garibay to construct the berm adjacent to the Beach residence based on Mullane's approval.
15. On the morning of December 17, 2015, Jesse Garibay and his crew constructed an asphalt, cold mix berm on Acacia Way adjacent to Victoria Beach's home. That afternoon this berm was removed by the City crew in response to the complaint from Barbara Buikema.
16. It is more likely than not that the authorization for the berm on Acacia Way adjacent to the Beach residence was the result of lack of information, incorrect assumptions, and poor communication between Rob Culver and Rob Mullane.
Interestingly, footnote 3 states “It should be noted that the Investigator asked each employee if he knew what to do if he were ever directed by a superior to do work that he believed was improper or illegal. None mentioned the option of contacting the City Attorney.”
Importantly, "Culver could not explain why he didn't close off the conversation with Beach at that initial meeting by explaining that the City cannot provide services to private roads nor could he answer why he felt the need to "follow through" with a request that he thought could not be approved." And “From Mullane's perspective, Culver brought Beach's request to him not because it involved her private property but because the request was coming from a council member who may have been pressuring staff to get the work done as a top priority.”
STEPHANIE ATIGH, ATTORNEY AT LAW, expended 19.7 hours @ $200/hour, with Copy Charges of $30.63, for a total taxpayer expenditure of $3970.63.
The INVESTIGATIVE REPORT (January 29, 2015), with Attachments A-G, Engagement Agreement - Workplace Investigation (December 23, 2015) and Invoice Workplace Investigations: City of Carmel-by-the-Sea Subject: Acacia Way document copies are embedded.
Complainant: Barbara Buikema
Employer: City of Carmel-by-the-Sea ("City")
Agency: City of Carmel-by-the-Sea
Workplace Investigation: Acacia Way
RE: Engagement Agreement - Workplace Investigation
December 23, 2015


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