COMPARISON: Current City Policy No. C93-02 Harassment Prohibited vs. City Harassment Prevention Policy (Revised 2010)

ABSTRACT & ANALYSIS: A comparison of the current City Harassment Policy and the Harassment Prevention Policy (Revised 2010), prepared by attorney Jon R. Giffen, Kennedy, Archer & Harray, is presented section by section. Basically, there are not any substantative changes, except “Mayor” in substituted for “Personnel Committee.” There is an expanded definition of harassment, including “the City has a zero-tolerance policy toward even a single instance of any such conduct which by itself or when repeated would constitute harassment” and an expanded definition of retaliation. It appears there is expanded focus on the Human Resources Personnel Officer if “implicated in any way in the allegations of harassment" without commensurate expanded focus on the City Administrator if implicated in any way in allegations of harassment. For example, the only instance in the eleven page Harassment Prevention Policy (2010) of “if the alleged harasser is the City Administrator,” is “If the alleged harasser is the City Administrator: the report must be given to the Mayor. The Mayor must review the findings and make recommendations accordingly to the entire City Council.” Needless to say, the Revised Policy, or more precisely, the contract with Kennedy, Archer & Harray, does not address the Mayor's and City Council's multiple failures to follow procedures delineated in the current policy as it pertains to the Jane Miller case; that is, failure to respond to Jane Miller’s attorney’s letter of May 2008, illegal act of giving aforementioned letter to the alleged offender, failure to respond to Jane Miller’s letter of October 2008, failure to ensure the private investigator interviewed the four former city employees who had similar claims against the City, et cetera. Moreover, the Mayor and City Council have not publicly addressed why the City settled Jane Miller’s sexual harassment, employment discrimination and retaliation lawsuit for $600,000 and Rich Guillen still remains City Administrator.

Current 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.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
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 purpose of this policy is 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 ensure 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.

Current City Policy No. C93-02 Harassment Prohibited
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.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
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. Employees, applicants for employment, and others are to be free from harassment on the basis of race, religion, color, national origin, ancestry, handicap, physical or mental disability, medical condition, marital status, registered domestic partner status, sexual orientation, sex, pregnancy, childbirth or related medical conditions, age (40 or older), or for asserting family care leave rights, or for any other basis protected by law. Employees are also protected if they associate with a person who is, or is perceived to be, in one of those classifications. Any and all such
harassment is unlawful.

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

The City will take disciplinary action, up to and including termination, against any employee who violates this policy.

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

Current City Policy No. C93-02 Harassment Prohibited
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.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
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 purpose of this Policy, “employee” is defined as each of the above.

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

Current City Policy No. C93-02 Harassment Prohibited
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.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
TYPES OF HARASSMENT PROHIBITED
The City’s policy prohibits harassment on the base of race, color, national origin, sexual orientation, religion, physical or mental disability, age, veteran status, or any other characteristic protected by applicable law. The City will not tolerate an employee engaging in any of the following behaviors:

1. Verbal Behaviors - For example: suggestive, insulting or derogatory comments, epithets, innuendos, sounds, jokes, teasing or slurs based on any of the above categories, and sexual propositions or threats.

2. Physical Behaviors - For example: assault, impeding or blocking movement, or any unwanted physical contact or interference with normal work or movement, including touching, pinching, brushing with the body, impeding or blocking movement, contact or assault when directed at an individual because of any of the above categories.

3. Visual Behaviors - For example: derogatory posters, pictures, suggestive objects, notices, bulletins, cartoons, letters, drawings or gestures; also such actions as leering, whistling or obscene gestures based on any of the above categories.

4. Unwanted Sexual Behaviors - any unwanted sexual advances; threats or demands to submit to sexual requests, or visual, verbal or physical conduct of a sexual nature when:

• submission to such conduct is made a term or condition of employment; or

• submission to or rejection of such conduct is used as a basis for employment decisions affecting individual; or

• such conduct has the purpose or effect of unnecessarily interfering with an employee’s work performance or creating an intimidating, hostile or offensive working environment because of the persistent, severe or pervasive nature of the conduct.

In order to ensure that such offensive conduct does not rise to the level of conduct which is illegal, the City has a zero-tolerance policy toward even a single instance of any such conduct which by itself or when repeated would constitute harassment. Specifically, the City will not tolerate employees engaging in any of the following conduct:

• Unwanted sexual advances.

• Offering employment benefits in exchange for sexual favors.

• Making or threatening retaliation after a negative response to sexual offenses.

• Visual conduct such as leering, making sexual gestures, displaying sexually suggestive objects or pictures, cartoons, calendars or posters.

• Verbal conduct such as making or using derogatory comments, epithets, slurs, sexually explicit jokes, derogatory or suggestive comments about a person’s body or dress.

• Written communications of a sexual nature distributed in hard copy or via a computer network.

• Unwelcome verbal sexual advances or propositions.

• Verbal abuse of a sexual nature, graphic verbal commentary about an individual’s body, sexually degrading words to describe an individual, suggestive or obscene letters, notes or invitations.

• Physical conduct such as touching, assaulting, impeding or blocking movements.

• Retaliation for making harassment reports or threatening to report harassment.

An employee engaging in such conduct will be subject to appropriate disciplinary action, up to and including termination of employment, regardless of whether the employee engages in the prohibited conduct only once or multiple times. In addition, any employee who engages in any inappropriate conduct based on or directed at a person’s gender will be subject to appropriate disciplinary action, up to and including termination of employment.

Sexual harassment can occur between employees of the same sex. The City’s policy prohibits males from sexually harassing females or other males, and females from sexually harassing males or other females.

The victim of sexual harassment need not be just the employee who is the target of harassment. Other employees who observe or learn about the harassment can also be the victims and institute charges. Anyone who is affected by the conduct can potentially complain of harassment.

There is a clear line in most cases between mutual attraction and a consensual exchange and unwelcome behavior or pressure for an intimate relationship. A friendly, interaction between two persons who are receptive to one another is not considered unwelcome or harassment. Employees are free to form social relationships of their own choosing. However, when one employee is pursuing or forcing a relationship upon another who does not like or want it, regardless of friendly intentions, the behavior is unwelcome sexual behavior. An employee confronted with these actions by a co-employee should inform the harasser that such behavior is offensive and tell the harasser to stop. An employee should assume the sexual comments are unwelcome unless the employee has clear, unequivocal indications to the contrary. In other words, one employee person does not have to the other employee to stop for that conduct to constitute harassment. Certainly if one employee advises another employee that certain behavior is offensive, the offending employee must immediately stop the behavior, regardless of whether you agree with the employee’s person’s perceptions of that employee’s intentions.

RETALIATION PROHIBITED
All employees are assured that they may make reports of harassment and participate in any subsequent 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. Examples of retaliation may, in accord with state and federal law, include, but are not limited to, the following examples:

• Transferring the employment position of the complainant or witness against his or her will;

• Ignoring the complainant or witness;

• Spreading rumors and innuendos about the complainant or witness;

• Changing work assignments of the complainant or witness without a valid work related rationale;

• Sabotaging of tools, materials or work of the complainant or witness; and

• Withholding work-related information from the complainant or witness.

This policy does not in any way alter or affect the right of any person to make a charge of discrimination with any state or federal agency with jurisdiction over such claims, file a grievance under a collective bargaining agreement, or consult a private attorney.

Current City Policy No. C93-02 Harassment Prohibited
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.

Disciplinary action is subject to the appropriate appeals process.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
COMPLAINT PROCEDURE
The City of Carmel-By-The-Sea has established a convenient, confidential and reliable mechanism for reporting incidents of harassment and/or retaliation. Employees are encouraged and have an obligation to promptly report what they believe to be harassing or retaliatory behavior.

Employee’s Responsibility When Subjected to Harassment
Any employee who believes he or she has been subjected to harassment prohibited by this policy should immediately tell the harasser to stop his/her unwanted behavior. The purpose of immediately communicating to a harasser that the behavior is unwelcome is to stop the harassment before it becomes more serious. Such notice will also go to support a claim that the harassment did occur. Failure to notify the harasser that behavior is unwelcome does not prevent the employee from otherwise reporting the harassment, and the employee is encouraged to report the harassment regardless of whether or not they communicate to the harasser that the behavior is unwelcome.

Any employee who believes he or she has been subjected to harassment prohibited by this policy is required to immediately report that behavior to any one of the following individuals: his or her supervisor; the City’s Human Resources Personnel Officer; or the City Administrator. An employee is not required to complain first to his or her supervisor if that supervisor is the individual engaging in the unwanted behavior. Immediately reporting the harassing behavior is important because the sooner the allegations can be investigated, the sooner appropriate steps can be taken to end the harassment. ALL EMPLOYEES AND APPLICANTS ARE ASSURED THAT THEY MAY MAKE SUCH REPORTS WITHOUT FEAR OF RETALIATION BY THE CITY, DEPARTMENT MANAGEMENT, THEIR IMMEDIATE SUPERVISOR OR ANY OTHER EMPLOYEE.

Supervisor Responsibilities
Supervisors are responsible for enforcing the City’s harassment and prevention policy and must ensure that all employees are aware of the City’s policy through open discussions of the policy at staff meetings and by posting the policy in a conspicuous location accessible to all staff members. Supervisors should be cognizant of employees’ behavior and must not permit any employee under his/her authority to be subject to or engage in any conduct prohibited by the City’s policy. Supervisors who receive complaints or who observe conduct prohibited by this policy must immediately inform the offending employee to cease the conduct and further advise the Human Resources Personnel Officer of the incident. The City will take disciplinary action, up to and including termination, against any supervisor who fails in his or her responsibility to
take immediate action in response to an employee’s complaint of harassment or to stop harassing conduct committed in his or her presence or stop harassing conduct about which the supervisor has knowledge.

Supervisors have a mandatory obligation to document in writing any harassing behavior that they observe or are made aware of and to promptly provide that report to the Personnel Officer. If for any reason the Personnel Officer is implicated in the alleged harassment or is otherwise unavailable to respond to the complaint, then the reporting must be made to either the City Administrator or the Mayor instead of the Personnel Officer. In those instances, the City
Administrator or Mayor will have all the responsibilities that the Personnel Officer would otherwise have for investigating and responding to the complaint of harassment.

Current City Policy No. C93-02 Harassment Prohibited
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.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
Investigating Officer’s Responsibilities
All complaints of harassment will be investigated immediately. The Investigating Officer will either be the Human Resources Personnel Officer or in the event the Personnel Officer is implicated in any way in the allegations of harassment, the City Administrator or Mayor. The investigating Officer will produce a written report, which, together with the investigation file, ill be discussed with the complainant as soon as reasonably possible and in no event longer than two weeks from the date the complaint is made. The Investigating Officer will have the duty to immediately bring all harassment and/or retaliation complaints to the confidential attention of the City Administrator or the Mayor.

Only those who have an immediate right to know, including the Investigating Officer, the alleged target of harassment and/or retaliation, witnesses to the conduct, and the alleged harasser will or may find out the identity of the complainant. All individuals contacted in the course of the investigation will be advised that all retaliation or reprisal will constitute a separate actionable offense for which penalties may be implemented under this policy. All investigations will be handled with discretion, sensitively and due concern for the dignity of those involved. All persons contacted or interviewed during the investigation will be instructed not to discuss the subject matter of the investigation in order to protect the privacy of all those participating in the investigation.

The investigation will be as extensive as required, based upon the nature of the allegations. All persons named as potential witnesses by the complainant will be contacted during the course of the investigation, and those witnesses who have information relevant to the issues of the complaint will be interviewed. The individual who is alleged to have committed acts of harassment will be contacted during the investigation. They will be informed of the allegations being made against him or her and be given the opportunity to respond to the allegations including he opportunity to identify witnesses. Any accused employee has the option to be represented during investigation by a support person of his or her choice.

The complainant may expect a timely resolution of the complaint. The complainant will be kept apprised of the status of the complaint on a regular basis by the Investigating Officer.

The Investigating Officer has the following responsibilities to the complainant:

1. Meet with the complainant as soon as mutually convenient and in no event more than two weeks from the date the report is received;

2. Inform the complainant about the City’s Harassment Prevention Policy and inform the complainant that he or she is guaranteed to be safe from retaliation. Inform the complainant that he or she is required to immediately report any retaliation, purported retaliation, or ongoing harassment he or she may experience. Review with the complainant the City’s complaint procedures and answer any questions that the complainant may have regarding City’s Harassment Prevention Policy;

3. Inform the complainant about the other available legal options, including but not limited to filing a written complaint with state and federal compliance 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 the investigation requires that the alleged harasser be informed of the allegations, and that witnesses be interviewed;

5. Ask the complainant to tell the entire story in his or her own words. Listen to the complainant’s allegations and take notes writing down the relevant facts such as dates, times, situations, witnesses and anything else that seems relevant. 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 will resolve the complaint;

7. Advise the complainant that the meeting will be documented in writing and filed in the Harassment Complaint File under the security of the Personnel Officer or appropriate personnel. The Investigating Officer has the following responsibilities to the alleged harasser:

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

2. Give him or her an opportunity to respond to the complaint affording him or her the same listening and respectful approach that was accorded the person who filed the complaint and the other witnesses.

3. Caution him or her that no retaliation is permitted, regardless of the outcome of the investigation and that they may not in any way treat the employee who filed the complaint differently than any other employee is treated.

The following general Investigation Guidelines apply to all investigations:

1. Investigations will be timely and as extensive as required, based on 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. Every reasonable effort must be made to complete the investigation and take remedial action within three weeks of the initial complaint.

2. The Investigating Officer may involve an outside facilitator such as legal counsel to assist in the investigation procedure, including conducting interviews with employees who may be more comfortable speaking candidly to an objective outsider.

3. All investigations must be documented in writing and will be handled with discretion, sensitivity and due concern for the dignity of 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.

4. 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.

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

a. It is the policy of the City of Carmel-by-the-Sea that if the alleged harasser is the complainant’s supervisor, the complainant must be removed from direct supervision of that employee and that supervisor must not participate in performance reviews of the employee, pending the outcome of the investigation. This action will not be considered punitive but will be considered a protective measure for all involved.

6. If, at the conclusion of the investigation, it is found that harassment has occurred, the Personal Officer must forward his or her findings, along with any recommendations to the City Administrator or Mayor for implementation of the disciplinary process, if any.

a. The type of disciplinary action recommended will 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 action.

i) Disciplinary action is subject to the applicable appeals process.

7. At the conclusion of the investigation the complainant will be advised by the Personal Officer of the disposition of the complaint. If it has been determined that harassment has occurred the complainant will be notified regarding the following:

a. Steps taken to correct the harassment. However, the specific manner of discipline imposed may not be communicated to the complainant.

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

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

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
Penalties
In determining the ultimate penalty in cases of harassment, the nature and severity of the claimed misconduct, along with any other relevant factors, will be reviewed by management. It is within management’s discretion to enact a more severe penalty against an accused harasser than as set forth below.

If the investigation leads to a determination that the allegations of harassment are true then the City of Carmel-by-the-Sea will apply the following disciplinary consequences:

1. An employee may be immediately discharged for any act in which conduct is proven or otherwise demonstrated to the satisfaction of the Investigative Officer and/or management.

2. Acts of harassment which are proven to be non-pervasive will generally result in a warning and/or suspension upon the first offense and discharge upon the second offense.

3. In determining the ultimate penalty in cases of harassment, the nature and severity of the claimed misconduct, along with any other relevant factors will be reviewed by management, and it is within management’s discretion to enact a more severe penalty than as set forth herein.

Current City Policy No. C93-02 Harassment Prohibited
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.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
MISCELLANEOUS GUIDELINES
Complaints Against Volunteers or City Council Appointees.
This policy applies equally to volunteers, appointees of the City Council, and others, 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 must follow the complaint procedure previously specified including immediately reporting that behavior to any one of the following individuals: his or her supervisor; the City’s Human Resources Personnel Officer; the City Administrator; or the Mayor.

An investigation will then be undertaken by the Personnel Officer as previously specified. In addition to those procedures, the completed investigation report will be distributed as follows:

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

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

3. If the alleged harasser is the City Administrator: the report must be given to the Mayor. The Mayor must review the findings and make recommendations accordingly to the entire City Council.

Current City Policy No. C93-02 Harassment Prohibited
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.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
Complaints Against Elected Officials
This policy applies equally to the Mayor and members of the City Counsel. Employees who believe they have been harassed by an elected official must follow the complaint procedure previously specified including immediately reporting that behavior to any one of the following individuals: his or her supervisor; the City’s Human Resources Personnel Officer; or the City Administrator.

An investigation will then be undertaken by the Personnel Officer as previously specified. Any employee who files a complaint against an elected official is assured of protection against retaliation by that official under City Policies as well as State and Federal regulations. If it becomes clear that an allegation against an elected official has substance and an internal resolution is not possible, the complainant will be notified and referred to the State and Federal compliance agencies set forth below. 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.

Complaints Against Outside Parties (Non-Employees)
If the complaint is against an outside party or other non-employee not previously addressed in this policy, then the complainant must follow the complaint procedure previously specified including immediately reporting that behavior to any one of the following individuals: his or her supervisor; the City’s Human Resources Personnel Officer; or the City Administrator.

An investigation will then be undertaken by the Personnel Officer as previously specified. The extent of the City’s control and any other legal responsibility which the City may have with respect to the conduct of the non-employee will be considered.

If the investigation finds the sexual-harassment occurred during the scope of work for a nonemployee, this information must be forwarded to their employer for corrective action. If the nonemployee has no employer affiliation, such as a private citizen, appropriate action will be taken to prevent a recurrence. Such action may include modification of assignments to ensure no future contact, provide or add security, and the like.

Each case for non-employees must be handled on an individual basis to determine the most ffective remedy to stop the harassment.

Current City Policy No. C93-02 Harassment Prohibited
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

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
Duty of Cooperation
An effective harassment policy requires support of all of the City of Carmel-by-the-Sea’s personnel. Anyone who engages in harassment and/or retaliation or who fails to cooperate with any City of Carmel-by-the-Sea sponsored investigation may be disciplined by suspension or termination from employment. The City of Carmel-by-the-Sea officials who refused to implement remedial measures, obstruct remedial efforts or who retaliate against complainants, witnesses or the alleged harasser may be disciplined by suspension or termination from employment.

State and Federal Compliance Agencies
Nothing in this policy will be interpreted so as to deny the right of any employee who believes he or she has been harassed to file a complaint with the state and or federal compliance agency and or bring suit in state or 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) 227-1264

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