“On Wednesday, the council voted 4-0, after a long discussion about whether to open up the process for another round of applicants, to appoint Theis to a seat being vacated by long-time Councilwoman Paula Hazdovac.”
ABSTRACT: On Wednesday, August 15, 2012, at 5:30 P.M., the City Council is scheduled to meet regarding Consideration of an appointment or the calling of a special election to fill the seat for the upcoming City Council vacancy (Discussion/Action). The STAFF RECOMMENDATION: “It has been less than four months since the City Council went through the appointment process with a high level of involvement from the community and City Council. Given this, and coupled with the unbudgeted costs of a special election, staff recommends that the City Council consider the process of appointing a replacement for Council Member Hazdovac’s upcoming vacant seat.” The SPECIAL CITY COUNCIL MEETING Packet is embedded; Live video streaming.
ABSTRACT: A Committee of the Board of Directors of the Carmel Residents Association prepared a Report entitled “CARMEL’S HARASSMENT SUIT,” dated November 11, 2010, based on information provided by the City through a Public Records Act request. The Report addresses the following questions: What events preceded the settlement of Miller’s harassment suit against the city? Did the city administration follow its published procedures in managing Miller’s harassment complaints? How adequate was the city’s investigation of Miller’s complaints? What were the terms of the settlement and release agreement between Miller and the City of Carmel-by-the-Sea? How much did it cost the city to defend the lawsuit? What are the provisions regarding termination in the city administrator’s Employment Agreement? The Report is uploaded. NEW INFORMATION HIGHLIGHTS are presented.
What events preceded the settlement of Miller’s harassment suit against the city? • On June 23, 2008, the city referred Miller’s complaints to Liebert, Cassidy, and Whitmore (LCW), the legal firm customarily retained to deal with personnel matters. LCW, in turn, subsequently engaged Karen Kramer to investigate the complaints.
Did the city administration follow its published procedures in managing Miller’s harassment complaints? • The city’s procedures specified that if the alleged harasser was the city administrator, complaints should be addressed to the city council’s personnel committee. However no such committee existed.
• From the outset, the mayor and city council violated stated procedures that required the recipient of complaints to “Listen to the complainant’s allegations and discuss the actions complained of with discretion, sensitivity and due concern for the dignity of everyone involved.”
• Further violation of city procedures related to the requirement, “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…” Miller remained under Guillen’s supervision throughout her final months as a city employee.
• City policy also required that “Investigations will be timely and extensive as required.” As will be discussed in a subsequent section of this report, the investigation of Miller’s complaints was cursory at best. With respect to timeliness, the policy referred to acting “immediately,” which the policy suggested meant within three days. Yet, the first real action on the May 20 complaint letter was referral to the LCW law firm on June 24. Six weeks later, LCW engaged Kramer as investigator…Her billing records show further delays-she did not conduct her first investigative interview until October 30. Her final report was submitted on January 16, 2009.
How adequate was the city’s investigation of Miller’s complaints? • In describing her investigative procedures, Kramer said that initially she would “determine whether or not I needed to obtain any documents from the complainant or the employer.” Yet in her deposition she responded, “No” to the question, “At any point in your work in this matter did you ask the city to put together all the documents relating to the claim and give them to you?”
• Later in her deposition, questions focused on Miller’s October 23 letter—the most detailed specification of her complaints. Kramer conceded that she had reviewed that letter and that it offered “definitely more detail than I had prior to that time.” Yet she responded, “I don’t think so” to the question, “… Her billing records also show that she spent 0.4 hours in total reviewing or doing any follow up on the lengthy Miller statement.
• Presumably Kramer’s investigation began with her retention in August. Yet she did not review the city’s harassment policy until October or November. She stated, “I don’t think I reviewed the policy as of October 21, 2008.” She acknowledged that she received the policy on November 10, and that it took her ten minutes to read it.
• The following exchanges in her deposition are significant:
Q. “Did you ever see any of Jane Miller’s emails?’
A. “No.”
Q. “Did you ever see any of Rich Guillen’s emails to Jane Miller?”
A. “No.”
• The most damning evidence against Guillen we have seen is found in the Kramer deposition transcript. In her interview with Guillen, he denied ever using the offensive statements in his emails that were cited in Miller’s complaint letters.
• Kramer interviewed a total of 12 witnesses between October 30 and December 3, 2008. According to Miller’s attorney, no more than one individual on a list of potential witnesses she submitted were ever interviewed. The persons to be interviewed were selected by city staff who reported directly to Guillen. Despite a judge’s opinion that Miller’s case shared common elements with the previously settled claims of four former employees, none of those employees was interviewed. With perhaps one exception, no other former employees were interviewed. This represents another serious violation of city policies that require “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.”
• Kramer’s final report was delivered on January 16, 2009, almost eight months after Miller’s initial letter of complaint. Despite the specification in her retention letter from LCW, “Transcribed witness statements or signed notes should be included with your report,” she conceded in her deposition that “I did not provide transcribed witness statements or signed notes.”
What were the terms of the settlement and release agreement between Miller and the City of Carmel-by-the-Sea? • The agreement does not impose any constraints on the release of information related to the suit by either Miller or the city.
How much did it cost the city to defend the lawsuit? • The largest share of the total cost has probably been covered by CSAC Excess Insurance Authority, the city’s insurer. “CSAC” stands for “County Supervisors Association of California,” also known as “California State Association of Counties”. Its Excess Insurance Authority was established by a joint powers agreement “entered into by the member counties and member public entities in order to develop and fund insurance services.”
A $10,000 deductible was paid by the city. The $600,000 settlement to Miller was covered by insurance. CSAC claims that this settlement alone will not influence future premiums.
• Payments to the two legal firms that primarily represented the city have totaled $226,447 as of August 31, 2010, with LCW paid $85,395 and Kennedy, Archer, and Harray paid $14l,051. CSAC paid all bills from the latter firm, but we don’t know what portion of LCW’s bills were covered by insurance.
• The suit was filed on June 17, 2009. It was reported to CSAC on July 27. The insurer considered this to be timely reporting.
• City policies require that all complaints that may lead to litigation must be reported to the insurer within three days. Yet, 14 months elapsed between the receipt of Miller’s first complaint letter and the ultimate reporting of the case to the insurer.
• The total cost of Kramer’s investigation was $15,678. According to a letter from CSAC Excess Insurance Authority, they do not “launch an independent investigation” but “are provided copies of the investigation conducted by the entity.”
What are the provisions regarding termination in the city administrator’s Employment Agreement? • The city administrator is an “at will” employee whose employment may be terminated by the city council without cause. There is no express or implied promise made for any form of continued employment.
• Deliberations and decisions by the city regarding termination shall be made in closed session in accordance with the Brown Act. Except where the administrator is charged with or alleged to have committed criminal misconduct or acts involving moral turpitude, the city shall provide the opportunity to resign in lieu of being terminated, and the parties shall cooperate regarding public announcements about his or her separation from the city.
Unless terminated for cause while the administrator is still willing and able to perform assigned duties, the city agrees to make a payment equal to six months of the then current aggregate salary. This payment will release the city from any further obligations. If the administrator is terminated because of conviction of any felony, or any crime involving moral turpitude or any offense involving a violation of official duties, or if the city determines that the administrator has misappropriated public funds, commingled public funds with personal funds, or engaged in willful corrupt conduct in office, then the city shall have no obligation to continue the administrator’s employment or to pay severance
•Summary
On May 20, 2008, the attorney representing Jane Miller, Carmel’s human resources manager, addressed a letter to the mayor and city council complaining of harassment by Rich Guillen, the city administrator. That letter was forwarded to the city attorney and, for response, to the city administrator, the alleged harasser. No other immediate response was forthcoming. Five weeks later, the city referred the matter to the law firm of Liebert, Cassidy and Whitman. After another six weeks elapsed, LCW engaged Karen Kramer as investigator. Her first investigative interviews occurred at the end of October and her final report was submitted the following January. In the meantime, having received no direct response from the city, Miller referred her complaints to the California Department of Fair Employment and Housing, and, eventually filed a suit against the city in June of 2009. A settlement of the suit was achieved in June of 2010.
From the outset, the city violated stated harassment policies and procedures in managing Miller’s complaints. For example:
• The city failed to respond to the initial statement of complaints with “discretion, sensitivity, and due concern for the dignity of everyone involved.”
• Policies prescribe immediate referral to a nonexistent council personnel committee. Instead complaints were referred for response to the alleged harasser.
• Policies require that “investigations will be timely and extensive as required.” The investigation essentially began five months after the complaints were filed and was cursory at best. The report on the investigation was submitted eight months after the initial letter of complaint.
The many shortcomings in the investigation include:
• The investigator failed to review many significant documents, most importantly the emails from Guillen to Miller that were so prominent among her complaints.
• The investigator failed to interview several important witnesses, including former employees and those recommended by Miller.
• The investigator accepted untruths from the city administrator without checking their veracity.
ABSTRACT: The Monterey County Herald today published a Guest Commentary by Carmel Residents Association Board of Directors Secretary Carolyn Hardy and recently retired News Editor Linda Anderson; the Guest Commentary is entitled “Guillen is Carmel liability.” HIGHLIGHTS from the Commentary are presented; a link to “Sexual harassment documents reveal poor handling of case by city,” CARMEL RESIDENTS ASSOCIATON NEWS OCTOBER 2010, is provided. In their Guest Commentary, Hardy and Anderson conclude “Guillen has damaged Carmel's finances, reputation and employee morale. Despite all this and exposure to future liability, he still remains on the job at Carmel City Hall.”
HIGHLIGHTS: "More than two years after Jane Miller's initial complaint of retaliation, discrimination and harassment by City Administrator Rich Guillen, the Carmel City Council hasn't corrected problems that created Carmel's scandal. After three recent closed-session meetings, the council majority appears unwilling to take the essential next step of terminating Guillen's employment."
"Disregarding Miller's complaints and ignoring the ongoing misconduct investigation, council members not only failed to put Guillen on administrative leave, but awarded him a substantial retroactive pay raise in October 2008."
"Shortcomings in the investigation were revealed during Kramer's deposition as part of Miller's lawsuit: She never saw e-mails from Guillen to Miller and interviewed one former employee, but talked to none of the four employees who had been forced from their jobs."
"It is clear Guillen misled the city's investigator, and in turn, the City Council."
"For years Guillen has operated with impunity at City Hall."
"Carmel incurred $226,447 in defense costs."
"Guillen has damaged Carmel's finances, reputation and employee morale. Despite all this and exposure to future liability, he still remains on the job at Carmel City Hall."
ABSTRACT: In a Letter to the Editor, The Carmel Pine Cone (11/20/2009), attorney Skip Lloyd explains “how it can be that the pending lawsuit over the EIR regarding the Flanders sale, if lost by the city, could void the public vote on the issue as presented to the voters.” Highlights of the letter and a link to the entire letter are presented.
HIGHLIGHTS of ‘Flanders election a mistake:’ “... the pending lawsuit over the EIR regarding the Flanders sale, if lost by the city, could void the public vote on the issue as presented to the voters.”
“... it should be recalled that the citizens would not even have had their required vote in the Flanders matter if the city council had not been sued and forced to hold the election regarding Flanders which the law required.”
“The reasoning behind the CRA’s statement was that, if the city lost the lawsuit, the council would have wasted the cost of the election and have put the community through an election wherein, in the end, one’s vote was meaningless.”
“... if one’s vote turns out to be wasted, it is the city council’s fault, not that of those who brought the lawsuit in order to make the city council comply with CEQA’s purpose to adequately explore the environmental impacts of a sale of Flanders, so that the city and the public were fully informed before voting on the issue.”
ABSTRACT: Fire Engineer August Beacham and Captian Mitch Kastros gave a power point presentation about the Carmel Fire Department, an update on the fire hydrants and answered questions from audience members. Highlights of the meeting are presented. COMMENTS are made with regard to the city government of Carmel-by-the-Sea.
HIGHLIGHTS OF THE MEETING, ET CETERA: • On Fire Hydrants: The City water system is currently adequate.
Presently, there are 187 operating fire hydrants; the longest distance from one operational fire hydrant to another operational fire hydrant is 750 ft., adequate coverage for fire hose lengths of approximately 1200 feet.
The majority of fire hydrants are rated as greater than 1000 gpm.
The City’s infrastructure was installed in the 1920s; the expected lifespan is 100 years. The problem with Carmel’s 1920’s infrastructure is the 4” cast iron pipes are corroded and some require replacement.
Of the total fire hydrants, 9 fire hydrants have been removed, 11 fire hydrants have been replaced and 9 fire hydrants are scheduled to be placed on new water mains.
According to Fire Chief Andrew Miller, Cal-Am, the owner of the infrastructure, has budgeted $500,000 for this fiscal year and $400,000 for next fiscal year towards completion of 9 Project Site Phases throughout the City. The Project Site Phases represent replacement of water mains with standard new PVC 6”- 8” water mains; all 9 Project Site Phases are estimated to be completed by the end of 2008.
CAL-AM’S 9 FIRE HYDRANTS PROJECT SITES: PROJECT SITE PHASE 1: 3rd Av. between Carpenter St. & Hatton Rd.
PROJECT SITE PHASE 2: Ocean Av. between Del Mar Av. & Carmelo St.
PROJECT SITE PHASE 3: Torres St. between 6th Av. & Ocean Av. & Ocean Av. between Torres St. to Santa Rita St.
PROJECT SITE PHASE 4: Carpenter St. –Forest Rd. between 6th Av. & 8th Av. 7th Av. between east of Forest Rd. & Hatton Rd.
PROJECT SITE PHASE 5: Junipero Av. @ Rio Rd &Ridgewood Rd.
PROJECT SITE PHASE 6: Scenic Rd. between 8th Av. & 9th Av.
PROJECT SITE PHASE 7: Hatton Rd. between Mountain View Av. and Martin Rd.
PROJECT SITE PHASE 8: Mission St. between 8th Av. & 10th Av.
PROJECT SITE PHASE 9: 12th Av. between Lincoln St. & Mission St.
Note: An updated map of the Fire Hydrants and the locations of Cal-Am’s Project Site Phases 1-9 will be available next week as a public announcement and on the City’s web site.
•Nationally, Fire Departments are a “Jack of all trades,” a “multidisciplined" force Duties and responsibilities include Fire, Structure Fires, Vehicles Fires, Wildland Fires and Rescue. And Medical including BLS (Basic Life Support) “EMT,” ALS (Advanced Life Support) “Paramedic,” Ambulance Transport, First Aid, Assistance; Environment, including Sewage Spills, Toxic Chemicals, Hazardous Materials, Fuel Spills; Hazardous Conditions including, Wires Down, Winter Storms, Water Leaks, Gas Leaks and Daily Activities including Equipment Maintenance/Repairs, Business Inspections, Fire Hydrant Maintenance, Training, Emergency Response and Public Education.
• History of the Carmel Fire Department Established in 1915
All Volunteer Fire Department until 1960s
In 1988, there were 43 members, including full-time staff of Fire Chief, Assistant Chief, Fire Marshall, 3 Engineers, 3 Captains and equipment including a volunteer BLS ambulance, 2 Type 1 Engines, 50 ft. Telesquirt Truck, Wildland Fire Engine, Rescue and Utility Vehicles.
In 2008, there are 6 full-time members, including 3 Engineers and 3 Captains. The Fire Chief is contracted with the City of Pacific Grove. Fire Marshall is under contract with Art Black. Duty Chief is contracted with the City of Monterey. There are 2 Type 1 engines and ambulance by Carmel Regional Fire Ambulance (CRFA).
In 1988 there were 35 Volunteers vs. 8 Volunteers in 2008; the change in the number of volunteers over time is due to demographics, entry requirements, training requirements and motivation.
• National Fire Protection Association (NFPA) “NFPA 1710 is a standard that sets minimum criteria for the effectiveness and efficiency of emergency operations to protect the safety of the Public and Fire Department employees.”
Background: NFPA issued the standard NFPA 1710 after 10 years of research and debate in 2001. The standard sets minimum criteria for the staffing of fire fighters crews and how they will respond and operation at emergency scenes.
NFPA 1710 Requirements: Fire Fighters will respond with a minimum of 4 personnel on each apparatus.
Fire Fighters will arrive at the emergency scene within 4 minutes of the dispatch center receiving the call.
The correct number of fully staffed and strategically located fire stations must exist to accomplish the standard.
NFPA 1710 Protects the Community Against Liability: NFPA 1710 could be highly relevant to the question of whether a jurisdiction has negligently failed to provide adequate fire or emergency medical protection to an individual harmed in a fire or medical emergency.
Jurisdictions assume some additional legal risk by failing to abide by NFPA 1710, even where it has failed to adopt the standard.
Notes: Presently, Carmel responds with 2 on engine, Captain and Engineer, and uses CRFA crew for OSHA “2 in-2 out.” CRFA is outside Carmel for long periods and mutual aid calls are taken from as far away as Salinas.
Presently, Carmel meets the 4 minute response criterion. “Weight of Attack” is lacking; that is mutual aid companies for balance of manpower is needed ex. Cal Fire.
• Future Scenarios Stand Alone Department; too expensive and unsustainable
Contract for Services; temporary only
Cal Fire; State controlled, not local Fire Department
Merger; Shares cost over several Fire Departments, high level of service at reduced cost and sustainable. The Choice of Carmel Fire Fighters!
• Current Status The Cities of Monterey and Pacific Grove are currently negotiating towards complete consolidation; consolidation start date is October 1, 2008. The City of Carmel-by-the-Sea is “on hold.” Apparently, the City withdrew from consolidation talks in January 2008. Advantages of Carmel/Monterey/ Pacific Grove Fire Departments merger are a fully staffed 4 person engine complete with ALS paramedic, long term viability of Carmel Fire Department and apparatus procurement and replacement program.
COMMENTS: • No one from the City Council or City Administration attended the meeting.
• As was articulated at the meeting by former Mayor Jean Grace, there are three issues involving the Carmel Fire Department; namely, a contract between the City and the Carmel Fire Fighters (Carmel Fire Fighters have been working without a contract since July 2007), staffing of the Carmel Fire Department and consolidation of the Carmel, Monterey and Pacific Grove Fire Departments. Moreover, the City has used closed session labor negotiations with the Carmel Fire Fighters about a contract as an excuse for not placing consolidation and staffing issues on a public meeting agenda for the benefit of the public.
• One of the reasons Carmelites are currently in such an untenable predicament is because the leadership of the CRA has not energized their members to file for office and run aggressive, substantive campaigns on substantive issues against the “well-oiled machine.”
WHERE: Vista Lobos Meeting Room (Torres St. between 3rd Av. & 4th Av.)
WHY: Update on the status of... • Carmel Fire Department Consolidation with Monterey and Pacific Grove Fire Departments • Staffing of the Carmel Fire Department and • Cal-Am’s Fire Hydrants & Water Mains Replacement Plans
