ABSTRACT: The conduct of the City Council (Mayor Sue McCloud, City Council Members Jason Burnett, Paula Hazdovac, Karen Sharp and Ken Talmage), City Administrator Jason Stilwell and Assistant City Administrator/City Clerk Heidi Burch is presented in the context of the City Council’s unanimous vote to adopt the City’s revised, updated Harassment Prevention Policy at the 7 February 2012 City Council meeting. Since the City does have an Administrative Services Director, the “designated Human Resources Manager” (HR Manager) to implement the Policy was identified as Heidi Burch, Assistant City Administrator/City Clerk. An email from a Carmelite was subsequently sent to City Administrator Jason Stilwell; the email is reproduced. City Administrator Stilwell did not respond to the email, but previously claimed that he has “a strong moral compass” and is not “driven by situational ethics.” Pertinent comments on the new city administrator by a noted ethicist are quoted. Selected excerpts from former Human Resources Manager Jane Miller’s Monterey County Superior Court file are complied involving Assistant City Administrator/City Clerk Heidi Burch’s record of conduct. One of the excerpts states “The evidence is overwhelming that Ms. Burch has been the beneficiary of Mr. Guillen's actions, and that Ms. Miller has made claims about that favoritism and about the role of Ms. Burch. Nevertheless, Ms. Burch has been authorized by the City to act on behalf of the City in regard to Ms. Miller, to bypass Ms. Miller's legal counsel, and to communicate directly with a represented party. It is hard to imagine a more inappropriate person to be designated to give orders and impose deadlines on Ms. Miller.” Similarly and significantly, it is hard to imagine a more inappropriate person than Heidi Burch being designated by the City Council to act as HR Manager in charge of implementing the City’s Harassment Prevention Policy. Michael Stamp, attorney representing Jane Miller, wrote in a letter to the editor (The Carmel Pine Cone, April 22, 2011) “This is no way to run a city. As long as the city and The Pine Cone blame the victim, the city will be at risk.” It is also no way to run a city to have the new city administrator not recognize that his top priority is to restore public trust in Carmel’s city government. And it is also no way to run a city to have the mayor and city council members refuse to acknowledge and explain settlements totaling in excess of $1,000,000 to city employees for claims of “hostile work environment,” Sex-Based Discrimination in Employment, Age-Based Discrimination in Employment, Sexual Harassment in Employment, Failure to Take All Reasonable Steps to Prevent Sexual Harassment from Occurring, Failure to Take All Reasonable Steps to Prevent Discrimination and Harassment Based on Age from Occurring and Retaliation in Violation of Law.
EMAIL TO CITY ADMINISTRATOR JASON STILWELL FROM A CARMELITE
Sent: February 13, 2012
At the 7 February 2012 City Council meeting, the City Council unanimously adopted the City’s revised Harassment Prevention Policy. Prior to that vote, the designated HR Manager was identified as Heidi Burch, Assistant City Administrator/City Clerk.
Questions:
1. Please explain the rationale for designating Heidi Burch the HR Manager given her past record of having an “inappropriate,” “unprofessional” relationship in the workplace based on “favoritism” which resulted in preferential treatment, non-standard pay raises and promotions based on her relationship with the previous city administrator and her record of active involvement in City Hall’s culture of harassment, discrimination and retaliation.
2. Please explain how designating Heidi Burch the HR Manager in the context of implementing the Harassment Prevention Policy is not a classic case of situational ethics.
As the aforementioned questions are not rhetorical, I would appreciate thoughtful and honest responses.
COMMENTS ON NEW CITY ADMINISTRATOR BY NOTED ETHICIST
"Democratic accountability is based on the explanation of decisions by those who represent us and run our community...If the new city administrator won't fully answer that question, it could only be because (1) he is afraid of losing his position if he does (situational ethics) or (2) he does not believe in accountability. "That's all in the past," is not a professional or responsible explanation."
SELECTED EXCERPTS FROM JANE MILLER’S COURT FILE
(References to Assistant City Administrator/City Clerk Heidi Burch):
Note: “Female B” is believed to be Heidi Burch, Assistant City Administrator/City Clerk
By May 2007, the talk at City Hall increased about Guillen's relationship with Female A and, recently, with another female employee. Female B. The talk was open and widespread and was known to City employees and others, including the Mayor and City Attorney. Guillen at that time knew that the comments were being made about him and Female A and Female B. Guillen knew that the comments were adversely affecting the workplace, particularly in regard to women in the workplace, for whom the relationships with Female A and Female B were perceived as inappropriate, unprofessional and based on favoritism.
Guillen was involved in an inappropriately close relationship in the workplace with Female B, who had been hired by Guillen in 2005 and who had received a favorable and non-standard pay raise from Guillen within the first six months of her employment. By March 2007, Guillen had "reclassified" Female B's position and provided her with favorable salary, benefits, and working conditions, including responsibility for actions that she had never performed previously and for which she needed training to perform. Female B's work activities involved spending private time with Guillen, going to meetings with Guillen, taking steps to deceive other employees about her activities. and jointly undertaking City tasks with Guillen.
In May 2007, Guillen created a new job title for Female B. via the draft City budget, giving her power and responsibility not approved by the Human Resources Manager and not approved at the time by the City Council. Contrary to standard City policy, Guillen and Female 8 did not create a job description and Female B was not given a performance evaluation. Plaintiff, the Human Resources Manager, was excluded from personnel/human resources decisions involving Female 8, because Plaintiff had objected to Guillen's similar favoritism toward Female A. Female B's salary had been increased by about 70% since 2005, far above that for other employees and positions of a similar nature in the City, including Plaintiff's.
In July 2007, Guillen made sure that Female B was officially reclassified with a 19% raise.
In October 2007, Plaintiff asked for routine authorization to use leave time to care for a family member. Guillen said he approved the leave in discussions directly with Plaintiff. Shortly thereafter, Female B challenged Plaintiffs leave, singling out Plaintiff. City staff then contacted Attorney O'Neill in an effort by Female B to challenge Plaintiffs routine entitlement to leave and embarrass or humiliate Plaintiff. In December 2007, Female B challenged Plaintiffs right to a small reimbursement under a benefit provision that had been in place for years, again singling out Plaintiff. Plaintiff was advised by the City that Guillen had been the instigator of the challenge, and Plaintiff reasonably understood that Female B was acting with the consent of Guillen in both cases. Plaintiff was being ostracized and isolated by Guillen, while he continued to undercut her role in the office.
In March 2008, Guillen gave Female B another 5% raise. Guillen claimed that Female B should get another raise because she had been successfully performing her management job, which was not a standard City rationale for such raise.
On October 23, 2008, Plaintiff sent a 13-page letter to the City and City
28 Attorney in regard to the conduct of Guillen, providing additional specific information to the City, quoting inappropriate emails from Guillen, recommending that the City interview eight identified persons, and referencing other persons with direct knowledge of Guillen's actions. Plaintiff is informed and believes that the City did not interview all of those persons or analyze the documentary evidence in the City's actual or constructive possession, and did not take reasonable steps to acquire material information. Plaintiff is informed and believes and on that basis alleges that Guillen put Female B in charge of the City's actions as to Plaintiffs claims, including the alleged retention of documents and communicating with City employees about the matter, effectively allowing Guillen to control and monitor the City's actions in regard to claims about Guillen's conduct, and providing notice to the employees that Female B was authorized by the City and Guillen to monitor the City's actions.
Source: COMPLAINT
JANE KINGSLEY MILLER, Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, and DOES 1 through 100, Defendants.
Case No. M99513
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
The Burch declaration, which provides the primary evidentiary basis for the City's motion, is insubstantial and inadmissible.
Guillen and Heidi Burch are now involved in a relationship that is inappropriate for the work place. For more than a year before Guillen told me that he was eliminating my position for budgetary reasons, Guillen and Heidi Burch had almost daily meetings behind closed doors and went to lunch together on a daily basis. It's been observed by me and several other staff members that Guillen and Heidi often try to be secretive about their time together by coming and going out of separate doors at City Hall, but then joining up in the parking lot. They have gone together to functions outside the City, sometimes in circumstances that bring into question their professionalism and relationship.
Guillen hired Heidi on August I, 2005. Heidi had a good education, but no public sector or City Clerk experience. Her• starting salary was $5,379/rnonth. In February 2006, after six months on the job, Heidi received a step increase from step 2 to 3 which was equal to 5% increase in salary.
By March 2007, Heidi was unofficially "reclassified" by Guillen to City
Clerk/Deputy City Administrator for taking on more of Guillen's responsibilities. However, Guillen and Heidi continued to participate in most City Administrator functions jointly, rather than independently. In July 2007, Heidi was officially reclassified via the budget documents as City Clerk/Deputy City Administrator at a salary that was 19% higher. Later and prior to the new budget of 2008/09, without Council action, Guillen and Heidi decided that her title should be Assistant City Administrator/City Clerk. When I left in May 2008, Heidi had not been given a recent perfom1ance evaluation on the new job duties she had been assigned and no new job description had been created to categorize her duties. Her monthly salary in March 2008 was $9, 125/month.
Since 2005, Guillen increased Heidi Burch's salary by about 70%.
Source: Letter from Jane Miller to Mayor and City Council
Re: My Employment with the City of Carmel-by-the-Sea
October 23, 2008
I have received your letter dated January 12, regarding the "investigation" that is underway. At the same time, my client, Jane Miller, has received two direct communications from Heidi Burch, where Ms. Burch makes certain demands and representations on behalf of the City, some of which are retaliatory.
As for the direct contact with Ms. Miller by Ms. Burch, I do not understand what the City hopes to accomplish with it. The evidence is overwhelming that Ms. Burch has been the beneficiary of Mr. Guillen's actions, and that Ms. Miller has made claims about that favoritism and about the role of Ms. Burch. Nevertheless, Ms. Burch has been authorized by the City to act on behalf of the City in regard to Ms. Miller, to bypass Ms. Miller's legal counsel, and to communicate directly with a represented party. It is hard to imagine a more inappropriate person to be designated to give orders and impose deadlines on Ms. Miller. Once more, as I did with Mr. Guillen's attempt to intimidate Ms. Miller back in May, I ask that the City not contact Ms. Miller directly. I also ask that Ms. Burch stop communicating directly with Ms. Miller.
Source: Letter from Michael Stamp, LAW OFFICES OF MICHAEL W. STAMP, to Richard C. Bolanos, Liebert Cassidy, Attorney for the City, January 12, 2009
INTRODUCTION AND SUMMARY
The City's motion to disqualify opposing counsel, Michael W. Stamp, is dated September 1, 2009. The City's sole factual basis for the City's allegations about the nature and extent of the former representations is the August 26, 2009 Declaration of Heidi Burch.
A careful review of those documents- the entire factual basis for the City’s motion- shows that Ms. Burch's characterizations of the documents were exaggerated, confused. misleading, and inaccurate. By comparing the Burch Declaration to the documents, it is apparent that Ms. Burch stretched the facts in efforts to create materiality and confidentiality.
Ms. Burch inaccurately describes each matter, as the records show.
BURCH CLAIM NO. 3.
Ms. Burch misstates the issue and the context of the cited material.
BURCH CLAIM NO. 4.
Ms. Burch misdescribes and distorts the 1987 documents in a troubling effort by the City to link them to the "personal relationship" of Mr. Guillen and Ms. Burch and of Mr. Guillen and Ms. Christie Miller in the current case.
BURCH CLAIM NO. 5.
Ms. Burch materially misstates the contents of the document.
BURCH CLAIM NO. 8.
The exaggeration by Ms. Burch is misleading.
Source: MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO CITY'S IN CAMERA DOCUMENTS
Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
LAW OFFICES OF MICHAEL W. STAMP
Attorneys for Plaintiff Jane Kingsley Miller
THE CITY FAILED TO MEET ITS BURDEN OF PROVING A DISQUALIFYING CONFLICT
The City's Showing - the Burch Declaration.
In filing this motion on September 1, 2009, the City stated under penalty of perjury that City Clerk Heidi Burch had accurately summarized the records that the City was relying upon for its claim of a substantial relationship between a former representation of the City and the Jane Miller case. The Burch declaration was the factual basis for the City's motion.
In the opposition filed October 8, 2009, Plaintiff Miller showed that Burch's declaration was not admissible because there was an insufficient foundation for any opinion. On October 23, 2009, this Court agreed, and ordered the City to produce the underlying documents for in camera review.
On November 9, 2009, Millers counsel got his first opportunity to address in any way the 106 City pages. At that time, Miller's counsel demonstrated that Burch's declaration supposedly summarizing the documents was materially false, stretched and exaggerated the truth, and grossly mischaracterized documents in an effort to fit them into the City's contention that there was an actual conflict with the Miller case.
In the City's most recent response filed November 17, the City makes no effort to correct the record, explain the Burch missteps, or show that the City did not in fact intend to mislead the Court and opposing counsel.
Source: PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO CITY'S BRIEFING
Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
LAW OFFICES OF MICHAEL W. STAMP
Attorneys for Plaintiff Jane Kingsley Miller
ADDENDUM:
“Situational ethics, ethics that focuses on the ends, is not what government ethics is about. Government ethics is rules-based ethics. In rules-based ethics, one is supposed to employ the categorical imperative, that is, ask oneself if you would make the principle on which you act apply to everyone. Situational ethics is just the opposite; it assumes that principles apply or don't apply depending on who is in what situation. For example, campaign finance disclosure is important when the opposition isn't disclosing enough, but is unconstitutional when you or your supporters have something to hide.”
Source: Situational Ethics Is Inappropriate in a Government Ethics Context
Fri, 2010-10-15
Robert Wechsler
Director of Research, City Ethics
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