Seven Noteworthy 5 April 2011 City Council Agenda Items

ABSTRACT: Seven Noteworthy 5 April 2011 City Council Agenda Items, namely Authorize a letter to the County to proceed with the dissolution of the JPA- managed ambulance response agency, provide notice of intent to retain the 1797.201 rights and authorize the City to submit an application for advanced life support (ALS) certification, Authorize the City to retain Bill Ross as Special Counsel to review and advise the City on ambulance services, Authorize the Mayor to submit responses to the Grand Jury report on behalf of the City of Carmel-by-the-Sea, an appeal of the Planning Commission’s decision to deny a two-unit, multi-family residential project for a site located on San Carlos Street 3 SE of 7th Avenue and an appeal of the Planning Commission’s decision to deny a two-unit, multi-family residential project for a site located on Mission Street 3 SW of 7th Avenue (appellant is Old Mill Properties, LLC), a Resolution to lend 30 Edward Weston photographs to the Monterey Museum of Art from May 9 through October 14, 2011 for an exhibition titled “Edward Weston, American Photographer: Landscapes, Portraits, Still Lifes, Nudes” and Approve amendments to City’s revised Harassment Prevention Policy. Response to Grand Jury Findings and Recommendations and HARASSMENT PREVENTION POLICY DRAFT NO. 3 are reproduced; excerpts from Agenda Item Summaries and Staff Reports are provided for Agenda Items. A Special City Council Budget Workshop is scheduled for Tuesday, April 26, 2011, at 4:30 P.M., Council Chambers.

AGENDA PACKET
Regular Meeting
Tuesday, April 5, 2011
4:30 p.m., Open Session

Live & Archived video streaming

City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

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. Authorize a letter to the County to proceed with the dissolution of the JPA-managed ambulance response agency, provide notice of intent to retain the 1797.201 rights and authorize the City to submit an application for advanced life support (ALS) certification.

L. Authorize the City to retain Bill Ross as Special Counsel to review and advise the City on ambulance services.

M. Authorize the Mayor to submit responses to the Grand Jury report on behalf of the City of Carmel-by-the-Sea.

Description: On January 10, 2011 the Monterey County Civil Grand Jury released a report that included findings and recommendations concerning, among other topics, retirement systems and participation in CalPERS for the cities in the county and the Monterey County Regional Water Project. Each of the cities is required to provide a written response by April 11, 2011.

The Carmel CalPERS Pension Committee was appointed by the Mayor in October, 2010 to investigate conditions concerning the city’s retirement systems and its participation in the CalPERS retirement system. The CalPERS Pension Committee drafted the attached responses to the Grand Jury report. Responses regarding the Monterey County Regional Water Project were drafted by City Planning staff.

Staff Recommendation: Authorize the Mayor to respond to the Grand Jury by the April 11, 2011 deadline.

Important Considerations: Upon completion of its term, the Monterey County Civil Grand Jury prepares a report that highlights issues of concern. Cities and agencies within the County are asked to prepare responses to these issues.

Decision Record: The City prepares responses to the Grand Jury’s Annual Report each year.

Response to Grand Jury Findings and Recommendations
March 18, 2011

Comments and Suggested Responses

F1.1. The CalPERS retirement system is worth retaining.

R1.1. Continue to participate in the CalPERS retirement system.

By virtue of its participation in the CalPERS retirement system, Carmel-by-the-Sea (hence, Carmel) is exposed to the uncertainty associated with a series of risks, including reliance on a risky asset portfolio to support payments that are specified and not subject to asset risks.

More information is needed to assess whether Carmel should continue to participate in the CalPERS retirement system. CalPERS regulations make it possible for the Council to request that CalPERS estimate the cost of exiting the retirement system. Our understanding is that the request for this estimate is non-binding and does not commit Carmel to any further action.

Carmel requests this “exit estimate” as a necessary first step in considering the costs and benefits of a possible withdrawal from the system and adoption of an alternative retirement plan better suited to the needs of the City and its employees.

F1.2. Those local agencies that have binding arbitration have ceded their collective bargaining authority and responsibility to an individual arbitrator.

R1.2. Abolish binding arbitration in labor matters.

We agree with the finding. Carmel’s current labor contracts do not provide for binding arbitration and we recommend that this practice continue.

F1.3. A vote of the electorate before granting increased retirement benefits has not been implemented as a check on overspending.

R1.3. Require a vote of the electorate as a prerequisite to increase retirement benefits and thereby limit spending.

Council should retain a full range of choices concerning its employees’ salaries, benefits and other contract terms. Thus, we do not concur with this recommendation. However, we recommend that public notice be made of any intention to enter into negotiations to significantly change retirement benefits in order to allow sufficient time for comments by interested parties.

F1.4 Some agencies may allow retired employees to come back to work part time at the same agency and receive retirement and a salary, provided they don’t work more than 960 hours per year, the maximum allowed by CalPERS.

R1.4. Do not allow those who have retired from the agency to be re-employed by the same agency on a part-time basis.

Findings and Recommendations 4 through 9 relate to particular practices allowed within the CalPERS retirement system. The Grand Jury recommended that each of these be restricted. Carmel has avoided broad use of these practices and avoided use of some them entirely.

The City Council and administration should continue to have the full range of available choices in managing its employees, and recommends against imposing the restrictions in recommendations 4 through 9 categorically. However, it is prudent to avoid frequent use of these practices.

With regard to recommendation 1.4, Carmel recommends continuation of the restriction that retired employees can only be hired on a part-time temporary basis with no benefits.

F1.5. Some agencies may have practices that allow employees to increase or “spike” their base year salaries by converting unused sick leave or vacation leave to salary during their last year of employment.

R1.5. Prevent “spiking” the base salary.

We concur that practices related to unused sick leave or vacation leave in the last year of employment have the potential to unduly increase pension costs. There are currently caps on accumulated sick and vacation leave in the City’s Municipal Code and we recommend that they be continued. We also recommend that the City analyze the costs and benefits associated with changing such caps.

F1.6. The practice of offering an employee up to two years of unearned credit for retirement in exchange for taking an early retirement (“a Golden Handshake”), as authorized by Section 20903 of the Government Code, may be subject to abuse.

R1.6. Do not offer a “Golden Handshake.”

The Council and administration should continue to have the full range of choices in managing its employees and thus recommend against restricting the Council’s ability to make such an offer. However, we recognize that any use of early retirement should be carefully considered, supported by a sound financial analysis indicating that the benefits of such an offer will outweigh the costs, and be endorsed by the City Council.

F1.7. Some employees do not pay an appropriate CalPERS retirement share.

R1.7. Require employees to pay the CalPERS employee contribution rate.

At present, Carmel employees pay the full share for the standard plans specified by CalPERS and we recommend that this practice be continued.

F1.8. Some employees may pay for all optional CalPERS benefits. Some employees may pay for some or a portion of some of these benefits and some may pay nothing for optional benefits received.

R1.8. Require employees to pay for all optional CalPERS benefits.

At present, Carmel uses plans that include an optional provision that bases retirement benefits on a single year’s compensation rather than the average of amounts over three years. The additional required contribution is currently paid by the City.

We concur with the Grand Jury and recommend that Carmel require employees to pay for optional CalPERS benefits, to the extent permitted by CalPERS regulations and labor agreements.

F1.9. Some agencies have no caps on the maximum amount of time one can accumulate in sick leave or vacation leave.

R1.9. Place a cap on the maximum amount of sick leave and vacation leave an employee can accumulate.

We recommend continuation of caps such as those currently specified in the City’s Municipal Code. We also recommend that the City analyze the costs and benefits associated with changing such caps.

F1.10. The California Legislature could enact changes that would limit new employees to 2% @ 55 for Safety with a 90% of salary retirement cap and 2% @ 60 for Miscellaneous in the CalPERS system with a 36-month salary base or each.

R1.10. Urge passage of legislation that new hires are limited to 2% @ 60 for Miscellaneous employees, 2% @ 55 for Safety employees with a 90% of salary retirement cap, and a 36- month salary base for each.

The City believes that it is important for CalPERS to offer employers multiple tier options, including the two included in this recommendation. This can allow employers maximum flexibility in providing overall compensation plans, balancing salary payments, health and retirement benefits. We understand that the two specific plans noted in the recommendation are now available for use by employers when hiring new employees. We recommend that CalPERS continues to make these plans available in the future, preferably with additional alternatives. However, we do not recommend that the City urge the California Legislature to mandate that all CalPERS member agencies be required to utilize these particular plans for all new employees.

F1.11. CalPERS could be made more affordable to the agencies if new employees were provided, in lieu of benefits accorded to existing employees, a second-tier of benefits of 2% @ 55 for Safety employees with a 90% of salary retirement cap and 2% @ 60 for Miscellaneous employees, each with a 36-month salary base.

R1.11. Contract for a CalPERS retirement benefit for newly hired employees of 2% @ 55 for Safety employees with a 90% of salary cap and 2% @ 60 for Miscellaneous employees with a 36-month salary base for each.

As indicated in the previous response, the City understands that these tiers are currently available for use by Carmel for new employees. We recommend that the Council undertake negotiations with the employee organizations to allow the adoption of some set of benefits for new employees that will decrease the risk to the City associated with retirement payments. The tiers proposed by the Grand Jury meet this criterion, but the Council recommends that the City also consider any other plans allowed by CalPERS that could accomplish this goal.

F1.12 Some MOUs may not allow the reopening of negotiations to make prospective changes to salary and benefits in the event of unforeseen dire economic circumstances.

R1.12. In all future MOUs, reserve the right to reopen negotiations in the event of unforeseen dire economic circumstances to make changes to salary and benefits with no reduction to salary and/or benefits already earned.

Carmel’s current agreements with labor organizations (MOUs) do not preclude the reopening of negotiations to make prospective changes to salary and benefits. In general, we recommend that no future MOUs restrict in any way the City’s right to reopen negotiations to make prospective changes in salary and benefits.

The City of Carmel-by-the-Sea has been asked to respond to Findings F8.1 and F8.2 and Recommendations R8.1 and R8.2 of the Monterey County Civil Grand Jury investigation into the Regional Water Project. The City’s responses comply with California Penal Code Section 933.05. Listed below are the findings and recommendations followed by a response from the City.

F8.1. While the Municipal Advisor role provides valuable public oversight, the appointed members lack long-term continuity and may lack expertise to effectively monitor complex water issues without the assistance of water professionals.

Response: The City partially agrees with this finding. While it is true that some appointed members may lack long-term continuity and/or expertise, they do have the ability to rely on staff for the required expertise. As is the case in most government organizations, staff provides assistance and support so that the elected officials can make the most informed decisions possible. This would continue to be the case for the Municipal Advisors.

F8.2. Some cities on the Monterey Peninsula already have constructed small scale desalination plants.

Response: The City agrees with this finding.

R8.1. The mayors are encouraged to formalize an advisory support function established from the cities’ staff members with the most expertise on water issues to enhance their Municipal Advisor role.

Response: The Advisory Committee has already agreed to allow staff members with expertise on particular topics to attend meetings and provide support. The City would prefer to continue to operate in this manner because the staff members with expertise may vary depending on the topic. This allows the mayors flexibility in inviting those staff members who can provide the appropriate assistance based on the specific topics to be discussed at that meeting

R8.2. Grant the Municipal Advisor role a voting position, as many members are familiar with desalination operations.

Response: The City does not agree with this recommendation. Granting the Municipal Advisor a voting position would require an amendment to the WPA and could significantly delay the project.

VIII. Public Hearings
If you challenge the nature of the proposed action in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing.

A. Consideration of an appeal of the Planning Commission’s decision to deny a two-unit, multi-family residential project for a site located on San Carlos Street 3 SE of 7th Avenue. The appellant is Old Mill Properties LLC.

Description: The appellant is requesting that the Council overturn the denial of the project. The appellant argues that the project complies with City standards and should be approved.

Staff Recommendation: Grant the appeal.

Important Considerations: The RC District was established to provide an appropriate location for residential uses and limited commercial uses and to be a transition zone between the more intense activities in the CC and SC Districts and the activities in the R-1 District.

During the Planning Commission hearings several concerns were raised by the
Commission about the project. However, the primary point of debate centered on whether the applicant should be required to place the parking at the rear of the lot.

Decision Record: On 12 January 2011 this project received a split 2-2 vote and was denied due to a lack of a motion for approval.

BACKGROUND & PROJECT DESCRIPTION
The project site is located on San Carlos Street three southeast of Seventh Avenue in the Residential and Limited Commercial (RC) District. The lot was previously developed with two small cottages that were used for commercial and residential purposes. The structures were condemned by the City and demolished in May 2010.

The applicant is appealing the Planning Commission’s denial of the proposal to develop two adjacent lots, each with a multi-family residence. One lot fronts on San Carlos Street and the other fronts on Mission Street. The lot which faces San Carlos Street (DR 10-24) is the subject of this staff report, while the lot facing Mission Street (DR 10-25) is the
subject of a separate report.

The proposed multi-family dwelling on San Carlos Street is a 3,200-square-foot Spanish style structure. The project includes a 2,371-square-foot main residence, a 412-square foot apartment and a 417-square foot garage. The apartment is located on the lower level and has a separate entry as well as a kitchen and full bathroom. The project includes three parking spaces as required by code (see attachment “C” for more information).

The structure is clad with stucco siding, a clay tile roof and includes unclad wood windows. The front elevation presents an entry element, a balcony and single wood garage door. The garage door is located 22.5 feet from the sidewalk and is recessed behind the front balcony. No variances are being requested.

BASIS FOR APPEAL
The property owner is appealing the project denial for the following reasons (see attachment “B” for more information):

• The proposed project is consistent with the Zoning Code and Commercial Design Guidelines.

• The determination that parking should be at the rear of the property is unfounded and cannot be tied to the Zoning Code or Design Guidelines.

• Parking in the back is an impractical notion that is too costly and would result in a financially disastrous project.

EVALUATION
This section of the staff report discusses the General Plan, Zoning Regulations and Design Guidelines that should be used by the City Council in its deliberation. Staff notes that the City Attorney was required to step down due to a conflict of interest and did not provide staff with any legal counsel for this project.

General Plan
The General Plan land use designation for this site is Commercial/Residential. Page 1-15 of the General Plan states:

“this area is intended to provide for a mix of residential dwellings and a limited range of office and service uses in scale with the character of the community. Less intense commercial uses and visitor accommodations are allowed in this area. Mixed-use developments of commercial and multi-family residential uses at a maximum density of thirty-three (33) units per acre are allowed. This area is also appropriate for public service uses.”

The General Plan envisions residential, limited commercial, public services and mixed use developments for this area. The traditional character of the RC district is quite eclectic and contains single-family residences, multi-family structures, mixed use structures, commercial structures and public services. The proposed multi-family residential use is consistent with the intent of the General Plan and the traditional character of the District.

There are several goals, objectives and policies in the Land Use Element of the General Plan that provide guidance on project design, which are summarized in Attachment “F”.

Objective 01-11 was the focus of much of the Commission’s debate and encourages pedestrian-oriented commercial and multi-family districts that are integrated into the residential character of the community. The Commission was split on whether the proposed design, that includes vehicle parking towards the front of the site rather than at the rear, was inconsistent with this objective.

Staff notes that there are challenges to placing parking at the rear of this site. This site is narrow, steeply sloped, and includes a large significant tree that constrains the potential location of parking. Placing the parking at the rear would require a sloped driveway.

Sloped driveways often require tall retaining walls and expose more of the mass of a structure to the street, as well as presenting safety concerns due to the limited lines-of-sight when approaching the street. These challenges should be taken into consideration as well as the concerns raised by the Commission that placing the parking near the front of the site is not pedestrian friendly.

Zoning Regulations
The Zoning Designation for this site is Residential and Limited Commercial (RC). CMC Section 17.14.010.C states that the purpose of the RC District is:

“to provide an appropriate location for permanent and transient residential uses, service and office uses, and limited retail uses that do not adversely impact the residential neighborhood. This district is intended to provide a transition and buffer between the more intense activities in the CC and SC districts and the less intense activities in the R-1 and R-4 districts.”

CMC Section 17.14 establishes the range of permitted and conditional uses that are allowed in this district. Multi-family residential projects with a density between 0-22 acres are considered a permitted use by the Zoning Ordinance. CMC Section 17.68.030 defines a multi-family dwelling as:

“a building or group of buildings on a single building site that contains two or more dwellings, each with its own facilities for parking, living, sleeping, cooking and eating. This classification includes condominiums, townhouses, and apartments.”

The proposed structure includes a 2,371 square foot main residence with a 412 square foot apartment. The apartment has a separate entry, bathroom, cooking and sleeping facility, and includes a designated parking space. Based on the above definition, the project qualifies as a multi-family dwelling. Staff notes that the Zoning Code and Housing Element encourage a mix of unit sizes to provide a wide range of housing opportunities.

Design Guidelines: CMC Section 17.14.100 states that the “Basic standard of review in the commercial district is whether the project constitutes an improvement over existing conditions – not whether the project just meets minimum standards.” CMC 17.14.110 indicates that the Commercial Design Guidelines have been adopted to assist in the design review process and that “Proposed projects need not strictly comply with every Guideline to be approved but deviations should be minor and reasonably related to good design principles and site conditions.”

Attachment “G” includes a list of some of the relevant Commercial Design Guidelines that the Council should consider. In summary, the Guidelines encourage buildings to provide visual interest, complement the rhythms established by other buildings in the immediate vicinity and encourage building materials and colors to respect the traditions already established in the commercial district.

The project provides visual interest and is consistent with the heights of other buildings between Seventh and Eighth Avenues on San Carlo Street. The structure is larger than the neighboring building to the south, however, the neighboring building is undersized compared to the other buildings in the vicinity.

With regards to materials, the applicant is proposing an off-white stucco siding, clay tile roofing and wood windows. Spanish style architecture with the proposed materials is traditionally used in the commercial district. The proposed color also respects the traditions and context of the commercial district.

Safety: The Carmel Police Department reviewed the plans and conducted a site visit in order to evaluate the safety of the proposed parking designs (see attachment “E”). The Police Department determined that there were no undue traffic and safety problems arising from the construction of the driveway as set forth in the plans.

Use Permit: The construction of basement floor space is permitted in the commercial district with the approval of a use permit (CMC 17.14.015). Floor space qualifies as a basement if the distance between the exterior grade and finished floor above is one-foot or less. In the original proposal a portion of the lower level dedicated to storage and mechanical equipment qualified as a basement space. The applicant has since revised the design so that no portion of the lower level qualifies as a basement. As a result a use permit is no longer required.

Summary: The City Council should discuss the following questions:
• Is the project consistent with the General Plan?
• Does the project comply with the Zoning Requirements for the RC District?
• Is the project consistent with the Commercial Design Guidelines?

RECOMMENDATION
Staff recommends that the Council make the following motion:
1) Grant the appeal for DR 10-24 (San Carlos Street) and direct staff to prepare findings and conditions for approval.

B. Consideration of an appeal of the Planning Commission’s decision to deny a two-unit, multi-family residential project for a site located on Mission Street 3 SW of 7th Avenue. The appellant is Old Mill Properties, LLC.

Description: The appellant is requesting that the Council overturn the denial of the project. The appellant argues that the project complies with City standards and should be approved.

Staff Recommendation: Grant the appeal.

Important Considerations: The RC District was established to provide an appropriate location for residential uses and limited commercial uses and to be a transition zone between the more intense activities in the CC and SC Districts and the activities in the R-1 District.

During the Planning Commission hearings several concerns were raised by the
Commission about the project. However, the primary point of debate centered on whether the applicant should be required to place the parking at the rear of the lot.

Decision Record: On 12 January 2011 this project received a split 2-2 vote and was denied due to a lack of a motion for approval.

BACKGROUND & PROJECT DESCRIPTION
The project site is located on Mission Street three southwest of Seventh Avenue in the Residential and Limited Commercial (RC) District. The lot was previously developed with a small single family residence. The structure was condemned by the City and demolished several years ago.

The applicant is appealing the Planning Commission’s denial of the proposal to develop two adjacent lots, each with a multi-family residence. One lot fronts on San Carlos Street and the other fronts on Mission Street. The lot which faces Mission Street (DR 10-25) is the subject of this staff report, while the lot facing San Carlos Street (DR 10-24) is the subject of a separate report. Attachments D-H are attached to the San Carlos staff report.

The applicant is proposing to construct a 3,600-square-foot multi-family dwelling. The project includes a 2,756-square-foot main residence with a 410-square foot apartment. The apartment is located on the lower level and has a separate entry as well as a kitchen and full bathroom. The project includes three parking spaces as required by code (see attachment “C” for more information).

The proposed structure consists of a low pitched gable and hip roof design with wood rafter tails. The entire residence is clad with a stone veneer and includes wood doors and windows and a slate roof. The front façade presents an entry element and a two-car garage and carport to the street. No variances are being requested.

BASIS FOR APPEAL
The property owner is appealing the project denial for the following reasons (see attachment “B” for more information):

• The proposed project is consistent with the Zoning Code and Commercial Design Guidelines.
• The determination that parking should be at the rear of the property is unfounded and cannot be tied to the Zoning Code or Design Guidelines.
• Parking in the back is an impractical notion that is too costly and would result in a financially disastrous project.

EVALUATION
The staff report for the San Carlos project appeal discusses the General Plan and Zoning Regulations that apply to both projects and should be used by the City Council in its deliberation. Staff notes that the City Attorney was required to step down due to a conflict of interest and did not provide staff with any legal counsel for this project.

The Mission Street project presents similar challenges with regards to placing the parking at the rear. The Mission Street project also includes an apartment with a separate entry, bathroom and cooking facility that qualifies the structure as a multi-family dwelling.

Design Guidelines: CMC Section 17.14.100 states that the “Basic standard of review in the commercial district is whether the project constitutes an improvement over existing conditions – not whether the project just meets minimum standards.” CMC 17.14.110 indicates that the Commercial Design Guidelines have been adopted to assist in the design review process and that “Proposed projects need not strictly comply with every Guideline to be approved but deviations should be minor and reasonably related to good design principles and site conditions.”

Attachment “G” includes a list of some of the relevant Commercial Design Guidelines that the Council should consider. In summary, the Guidelines encourage buildings to provide visual interest, complement the rhythms established by other buildings in the Staff Report immediate vicinity and encourage building materials and colors to respect the traditions already established in the commercial district.

The proposed structure has a simple design that appears visually interesting. The applicant is proposing stone siding, a slate roof and wood windows. The proposed materials are natural and are consistently used throughout Carmel’s commercial and residential districts. The applicant is proposing to apply a stone veneer to the entire structure as opposed to being used on only the street façade. Staff concludes that the proposed project is consistent with the Guidelines.

Safety: The Carmel Police Department reviewed the plans and conducted a site visit in order to evaluate the safety of the proposed parking designs (see attachment “E”). The Police Department determined that there were no undue traffic and safety problems arising from the construction of the driveway as set forth in the plans.

Use Permit: The construction of basement floor space is permitted in the commercial district with the approval of a use permit (CMC 17.14.015). Floor space qualifies as a basement if the distance between the exterior grade and finished floor above is one-foot or less. In the original proposal a portion of the lower level dedicated to storage and mechanical equipment qualified as a basement space. The applicant has since revised the design so that no portion of the lower level qualifies as a basement. As a result a use permit is no longer required.

Summary: The City Council should discuss the following questions:
• Is the project consistent with the General Plan?
• Does the project comply with the Zoning Requirements for the RC District?
• Is the project consistent with the Commercial Design Guidelines?

RECOMMENDATION
Staff recommends that the Council make the following motion:
1) Grant the appeal for DR 10-25 (Mission Street) and direct staff to prepare findings and conditions for approval.

X. Resolutions

B. Consideration of a Resolution to lend 30 Edward Weston photographs to the Monterey Museum of Art from May 9 through October 14, 2011 for an exhibition titled “Edward Weston, American Photographer: Landscapes, Portraits, Still Lifes, Nudes”.

Description: The Monterey Museum of Art has requested permission to borrow 30 Edward Weston photographs, stored in the Harrison Memorial Library Local History Department vault, for an exhibition that will run from June 18-October 2, 2011. The Museum has asked to borrow the photographs from May 9 through October 14, 2011, to allow time for assembly, disassembly, and transportation both ways.

Staff Recommendation: Adopt the Resolution

Important Considerations: The photographs will be fully insured by the Museum for the entire loan period and will be handled and transported by trained, experienced staff. They will be hung, using archival/museum standards, in a climate-controlled, secure facility. The Harrison Memorial Library Board of Trustees approved the loan of the photographs at its March 23, 2011 regular meeting. All photographs displayed in the exhibit will be credited to “City of Carmel-by-the-Sea, Harrison Memorial Library”.

Decision Record: In 2010, the City loaned two Mary DeNeale Morgan paintings to the Hearst Art Gallery at St. Mary’s College of California. In 2000, a painting by Charles Rollo Peters was loaned to the Monterey Museum of Art for its “Paintings of Monterey Adobes: A Walking Tour” exhibit.

RECOMMENDED MOTION
Adopt a Resolution to lend 30 Edward Weston photographs to the Monterey Museum of Art from May 9 through October 14, 2011.

BACKGROUND
The Monterey Peninsula Museum of Art has submitted a formal request to borrow 30 Edward Weston photographs, currently stored in the vault of the Harrison Memorial Library Local History Department, for an exhibition at the Monterey Museum of Art – La Mirada, titled “Edward Weston, American Photographer: Landscapes, Portraits, Still Lifes, Nudes”.

The exhibit will run from June 18 through October 2, 2011.

SUMMARY
The loan from the City will comprise approximately one-fifth of the photographs that will be displayed in the exhibit. It will be an opportunity to highlight a portion of the City’s exceptional collection of Edward Weston photographs and advantageously publicize the City of Carmel-by-the-Sea, the Harrison Memorial Library, and the Henry Meade Williams Local History Department.

XI. Orders of Council

A. Approve amendments to City’s revised Harassment Prevention Policy.

Description: Jon Giffen of the law firm, Kennedy, Archer & Harray has prepared a draft of the City’s new Harassment Prevention Policy. The draft was circulated to the three employee unions and the at-will employees for their comments in mid-March.

Overall Cost:
City Funds: N/A
Grant Funds: N/A

Staff Recommendation: Approve the amended Harassment Prevention Policy.

CITY OF CARMEL-BY-THE-SEA


CITY POLICY NO. __________


HARASSMENT PREVENTION POLICY

DRAFT NO. 3

TABLE OF CONTENTS

I.PURPOSE....1

II.POLICY....1

III. APPLICATION OF POLICY....2

IV. TYPES OF HARASSMENT PROHIBITED....2

1) Verbal Behaviors....2
2) Physical Behaviors....2
3) Visual Behaviors....2
4) Unwanted Sexual Behaviors.....2

V. RETALIATION PROHIBITED....3

VI. COMPLAINT PROCEDURE....4

1) Employee’s Responsibility When Subjected to Harassment....4

2) Supervisor Responsibilities....5
.
3) Investigating Officer’s Responsibilities....5

A) Investigating Officer’s Responsibilities to Complainant....6
B) Investigating Officer’s Responsibilities to Alleged Harasser....7
C) General Investigation Guidelines....7

4) Administrative Leave....9

5) Penalties....9

VII. MISCELLANEOUS GUIDELINES....9

1) Complaints Against Volunteers or City Council Appointees....9

2) Complaints Against Elected Officials....10

3) Complaints Against Outside Parties (Non-Employees)....10

4) Duty of Cooperation....11

5) State and Federal Compliance Agencies....11

City of Carmel-by-the-Sea

City Policy No. _______

Harassment Prevention Policy
(DRAFT NO. 3)

I. 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.

II. 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.

III. 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, Aemployee@ is defined as each of the above.

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

IV. TYPES OF HARASSMENT PROHIBITED

The City’s policy prohibits harassment on the basis of race, color, national origin, sexual orientation, religion, physical or mental disability, age, military 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, terms of endearment, 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, photographs, emails, 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:

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

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

Χ 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 the behaviors prohibited by the City’s policy do not rise to the level of behavior which is illegal, the City has a zero-tolerance policy toward even a single instance of any such behavior which by itself or when repeated would constitute harassment. An employee engaging in such behavior will be subject to appropriate disciplinary action, up to and including termination of employment, regardless of whether the employee engages in the prohibited behavior 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 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 of that harassment and can report the harassing behavior. Anyone who is affected by the harassing behavior can complain of harassment.

There is a clear line in most cases between mutual attraction and a consensual exchange on the one hand, and unwelcome behavior or pressure for an intimate relationship on the other hand. A friendly interaction between two persons who are receptive to one another is not considered unwelcome or harassing behavior. Employees are free to form social relationships of their own choosing. However, when one employee pursues or forces 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 unwelcome and tell the harasser to stop. An employee should assume that sexual comments are unwelcome unless the employee has clear, unequivocal indications to the contrary. In other words, one employee does not have to tell the other employee to stop for that conduct to constitute harassment. If one employee advises another employee that certain behavior is offensive, the offending employee must immediately stop the behavior, regardless of whether the offending employee agrees with the victim’s perceptions of the offending employee’s intentions.

V. 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:

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

Χ Ignoring or shunning the complainant or witness;

Χ Spreading rumors and innuendos about the complainant or witness;

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

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

Χ 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.

VI. 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.

1) Employee’s Responsibility When Subjected to Harassment

Any employee who believes he or she has been subjected to harassment prohibited by this policy is encouraged to 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. The communication to stop the harassing behavior will also 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 (“Personnel Officer”); the City Administrator; or the Mayor or Vice Mayor. 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.

2) Supervisor Responsibilities

Supervisors are responsible for enforcing the City’s Harassment 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 to 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 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 to 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. A supervisor must report to the Personnel Officer within 48 hours of receiving notice of the harassing behavior. Upon receiving a report, the Personnel Officer must discuss the nature of the complaint with the complainant as soon as reasonably possible and in no event later than 48 hours from receipt of the report. The Personnel Officer will meet with the complainant to verify the nature of the complaint and to inform the complainant as to how the complaint is being handled, including providing the complainant with a copy of this Harassment Prevention Policy.

If for any reason the Personnel Officer is implicated in the alleged harassment or is otherwise unavailable to respond to the complaint, then the supervisor must report the harassing behavior to either the City Administrator, the Mayor or the Vice Mayor instead of the Personnel Officer.

In those instances, either the City Administrator, Mayor or Vice Mayor will be responsible for meeting with the complainant as specified in the preceding paragraph. They will also cause the City Council to be notified and to be convened as soon as reasonably possible to determine who will investigate and respond to the complaint of harassment. The person designated by the City Council to investigate and respond to the complaint of harassment will have all the responsibilities that the Personnel Officer would otherwise have for investigating and responding to the complaint of harassment.

3) Investigating Officer’s Responsibilities

All complaints of harassment will be investigated immediately and will commence no later than ten (10) days from the date an incident is reported. The “Investigating Officer” will either be the Personnel Officer or, in the event the Personnel Officer is implicated in any way in the allegations of harassment, a person designated by the City Council to investigate and respond to the complaint of harassment. The Personnel Officer also has at his or her discretion the right to designate an independent third party to be the Investigating Officer. The Investigating Officer will discuss the nature of the complaint with the complainant as soon as reasonably possible and in no event longer than three 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, the Mayor or Vice 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 harassing behavior, 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, sensitivity 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. That individual will be informed of the allegations being made against him or her and be given the opportunity to respond to the allegations including the 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.

A) Investigating Officer’s Responsibilities to Complainant

The Investigating Officer has the following responsibilities to the complainant:

1. Meet with the complainant as soon as mutually convenient and ideally no 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 the 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 document the relevant facts such as dates, times, situations, witnesses and any other relevant facts. 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.

B) Investigating Officer’s Responsibilities to Alleged Harasser

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, and afford 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 he or she may not in any way treat the employee who filed the complaint differently than any other employee.

C) General Investigation Guidelines

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 as soon as reasonably possible following the initial report of harassing behavior.

2. The Investigating Officer may involve an outside facilitator such as legal counsel or an independent investigator 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 Investigating Officer must notify the City Administrator, the Mayor or Vice Mayor 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 a punitive measure, but will be considered a protective measure for all involved.

6. At the conclusion of the investigation, the Investigating Officer must prepare a written report of his/her findings as soon as reasonably possible but in no event later than 30 days from completion of the investigation. If, at the conclusion of the investigation, it is found that harassment has occurred, the Investigating Officer must forward his or her written findings, along with any recommendations to the City Administrator, Mayor or Vice 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.

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

7. At the conclusion of the investigation, the Personnel Officer will advise the complainant of the findings of the investigation. If the findings reveal that harassment has occurred, the Personnel Officer will notify the complainant of 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.

4) Administrative Leave

Department management may place an employee on administrative leave with or without pay to provide time to investigate and evaluate the circumstances regarding a complaint of harassment. The department must consult with Human Resources prior to any administrative leave action and obtain express approval from the City Administrator. In the event any employee is placed on administrative leave in response to a complaint, the investigation should be conducted immediately and a decision rendered within twenty-one (21) calendar days. If an extension is necessary, the department must consult with Human Resources and the employee must be notified of the extension. The City also reserves the right to sever its employment relationship with an employee during the period of administrative leave.

5) Penalties

In determining the penalty in cases of harassment, the nature and severity of the claimed misconduct, along with any other relevant factors, will be reviewed by management. City management has the 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 (limited in scope and nature) will generally result in a warning and/or suspension upon the first offense and discharge upon the second offense.

VII. MISCELLANEOUS GUIDELINES

1) 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 Treasurer: the report must be given to the Mayor, the Vice Mayor and the City Administrator. The Mayor or Vice 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 or Vice Mayor. The Mayor or Vice Mayor must review the findings and make recommendations accordingly to the entire City Council.

2) Complaints Against Elected Officials

This policy applies equally to the Mayor, the Vice Mayor and members of the City Council. 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 Personnel Officer; the City Administrator; or the Mayor or Vice Mayor.

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 by 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, if remedial action is found to be appropriate, the City would be unable to provide an effective remedy to the complainant.

3) 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 Personnel Officer; the City Administrator; or the Mayor or Vice Mayor.

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 harassment occurred during the course and scope of work of the non-employee, this information must be forwarded to his or her employer for corrective action.

If the non-employee 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 effective remedy to stop the harassment.

4) 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. Any City of Carmel-by-the-Sea official who refuses to implement remedial measures, who obstructs remedial efforts, or who retaliates against complainants, witnesses or the alleged harasser may be disciplined by suspension or termination from employment.

5) 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

VIII. EFFECTIVE DATE

Passed and adopted by resolutions of the City Council on ____________________ (date).


ADDENDUM:
Special City Council Budget Workshop – 4:30 p.m.
Tuesday, April 26, 2011
Council Chambers