SPECIAL CLOSED SESSION CITY COUNCIL MEETING: Public Employee Performance Evaluation - Government Code Section 54957. Title: City Administrator Discipline/Dismissal/Release

ABSTRACT: Tomorrow, Tuesday, 15 February 2011, the City Council will hold a Special Closed Session Meeting at 5:00 P.M. at City Hall for "Public Employee Performance Evaluation" regarding "City Administrator Discipline/Dismissal/Release." The Agenda is reproduced.

CARMEL-BY-THE-SEA CITY COUNCIL
Closed Session

Tuesday, February 15, 2011 – 5:00 p.m.

The City Council will meet at City Hall on the east side of Monte Verde
between Ocean and Seventh Avenues.

I. Roll Call

II. Orders of Council

Pursuant to Government Code Section 54956 et seq. of the State of
California, the City Council will adjourn to Closed Session to consider
the following:

1. Public Employee Performance Evaluation - Government Code
Section 54957. Title: City Administrator Discipline/Dismissal/Release

III. Announcements in Open Session (if any).

IV. Adjournment


The City of Carmel-by-the-Sea does not discriminate against persons with
disabilities. Carmel-by-the-Sea City Hall is an accessible facility. The City of Carmel-by-the-Sea telecommunications device for the Deaf/Speech Impaired (T.D.D.) number is 1-800-735-2929.

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Attorney Stephen Beals: 'What occurred was the Council took action that directed staff to negotiate a lease agreement for the theater; which is absolutely not what is described in the Agenda. This action clearly violated California Government Code § 54954.2.'

ABSTRACT: Attorney Stephen Beals, representing the Forest Theater Guild, sent a letter via facsimile and U.S. Mail to City Attorney Don Freeman, dated January 12, 2011, regarding “CARMEL CITY COUNCIL MEETING NOVEMBER 2, 2010- AGENDA ITEM XI, F.” Significantly, the letter reads in part, as follows: “What occurred was the Council took action that directed staff to negotiate a lease agreement for the theater; which is absolutely not what is described in the Agenda. This action clearly violated California Government Code § 54954.2." Apparently, the City intends to “bring this matter back to the Council for consideration at their February meeting." Attorney Stephen Beals' letter is reproduced.

STEPHEN BEALS │PLC
ATTORNEYS AT LAW

26350 Carmel Rancho Lane
Suite 215
Carmel, CA 93923

P.O. Box 223399
Carmel, CA 93922

Voice: 831.626.6400
Fax: 866.624.7746
www.stephenbeals.com

January 12, 2011

VIA FACSIMILE AND US MAIL

Mr. Donald Freeman, City Attorney
City of Carmel
PO Box 805
Carmel, CA 93921-0805

RE: CARMEL CITY COUNCIL MEETING NOVEMBER 2, 2010- AGENDA ITEM XI, F

Dear Mr. Freeman:
As I mentioned in our last telephone conversation I represent the Forest Theater Guild regarding the above referenced matter. I was recently informed that the City of Carmel has agreed to bring this matter back to the Council for consideration at their February meeting- if this is not correct please let me know immediately.

As a formality, I believe it is necessary to explain our position regarding the action taken, which I will do below.
The Agenda for the November 2, 2010, meeting states:
“Receive report and provide policy direction on circulating a Request for Proposal (RFP) for the management and operation of the Children’s Experimental Theater.”

What occurred was the Council took action that directed staff to negotiate a lease agreement for the theater; which is absolutely not what is described in the Agenda. This action clearly violated California Government Code § 54954.2. On November 24, 2010, the City was provided written notice of objection to the action from Mr. Safwat Malek.

I understand the City has decided it is best to bring this matter back to the Council and place the item on the February Agenda. My clients look forward to having an opportunity to present their proposal for the “Youth Arts Academy.”

My client appreciates the City’s decision to consider all possible options for the Children’s Experimental Theater. As you know, Forest Theater Guild has been Carmel’s and Forest Theater’s “community” theater since its founding by Herbert Heron in 1910. My client is eager to present their proposal to the Council as their proposed use of the indoor space would allow a year round Forest Theater Guild operated program for youth in Carmel and offer the community an expansion into multi-media arts and film.

Assuming the City has agreed to properly re-notice this matter and conduct a public hearing at its City Council meeting in February, as I understand it has, I have been directed to withhold taking further legal action against the City at this time.

Very truly yours,
STEPHEN BEALS │ PLC

Stephen J. Beals
SJB;jmh

cc: Council Members, City Administrator

Three Noteworthy 7 December 2010 City Council Agenda Items

ABSTRACT: Three Noteworthy 7 December 2010 City Council Agenda Items, namely Receive City’s Year-End and First Quarter 2010-2011 financial reports, Present FY 2009-10 Draft Audited Financial Statements by Ralph Marcello, Marcello & Company CPAs and Receive report and provide policy direction on extending the shared fire services agreement for 30 days, are presented. Excerpts from Agenda Item Summary, Staff Report, AGREEMENT TO PROVIDE INTERIM FIRE ADMINISTRATION AND EMERGENCY INCIDENT MANAGEMENT SERVICES BETWEEN THE CITIES OF MONTEREY AND CARMEL-BY-THE-SEA, Amendment to Agreement to Provide Limited Fire Services between the Cities of Monterey and Carmel-By-The-Sea and Amendment #2 to Agreement to Provide Interim Fire Administration and Emergency Incident Management Services between the Cities of Monterey and Carmel-By-The-Sea are provided.

AGENDA PACKET
Regular Meeting
Tuesday, December 7, 2010
4:30 p.m., Open Session

Live & Archived Video Streaming

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

V. Announcements from Closed Session, from City Council Members and the City Administrator.

C. Announcements from City Administrator
1. Receive City’s Year-End and First Quarter 2010-2011 financial reports.

2. Present FY 2009-10 Draft Audited Financial Statements by Ralph Marcello, Marcello & Company CPAs.

XI. Orders of Council
A. Receive report and provide policy direction on extending the shared fire services agreement for 30 days.

Description: In December 2008, Council directed staff to review alternatives of providing fire services. Over the past several months, separate meetings were held with both CAL FIRE and Monterey/Pacific Grove fire departments to review all possible alternatives. There also was a period of time when all agencies were evaluating the creation of a Joint Powers Authority to provide Peninsula-wide shared fire services, however, this effort has encountered some difficulties, mostly related to risk management. Thus, staff’s efforts have refocused on developing a contractual relationship with an outside fire agency.

Staff has now formally requested a mutually agreeable, 30-day extension of the Monterey/Pacific Grove shared fire services agreement. It is recommended that the extension not go beyond January 31, 2011.

Overall Cost: The monthly payment for the current services provided by Monterey/Pacific Grove is $13,500 per month. This amount will remain the same during the 30-day contract extension period.

Staff Recommendation: Review the report and provide direction.

Important Considerations: Before the January 31, 2011 extension with Monterey/Pacific Grove ends, a comprehensive draft report will be presented at a Council workshop, the focus of which will be a review of various shared fire services alternatives. Staff will ask the Council some time before the end of January to decide which fire services alternative will best serve the City and to direct staff to prepare the appropriate agreements to implement that decision.


RECOMMENDATION
The agreement allows for an extension of the agreement by mutual consent of both parties. No City Council action is necessary at this time.

STAFF REVIEW
Staff has formally requested a 30-day extension on the Monterey/Pacific Grove shared fire services agreement. Staff is completing the draft report and accompanying PowerPoint presentation. It is recommended that the extension not go beyond January 31, 2011.

Prior to the end of this extension, a Council workshop will be held to review the various shared fire services alternatives. At some point before January 31st, staff will ask the Council to make a decision on which fire services alternative will best serve the City and thus, direct staff to prepare the appropriate agreements to implement that decision.

SUMMARY
A draft comprehensive report is being completed and will be presented at an upcoming Council workshop.

AGREEMENT TO PROVIDE INTERIM FIRE ADMINISTRATION AND EMERGENCY INCIDENT MANAGEMENT SERVICES BETWEEN THE CITIES OF MONTEREY AND CARMEL-BY-THE-SEA

THIS AGREEMENT, made and executed this day of December 3, 2008 by and between the CITY OF MONTEREY, a municipal corporation, herein after referred to as “Monterey,” and the CITY OF CARMEL-BY-THE-SEA, a municipal corporation, herein after referred to as “Carmel” (collectively referred to as “the Parties), ...

ARTICLE I
TERM OF AGREEMENT

1.1 Initial Term. The term of this Agreement shall be from 12:00 midnight on December 15, 2009 through 11:59 p.m. on February 28, 2009.

1.2 Extension of Term. This Agreement may be extended by mutual agreement of the Parties conditioned upon joint commitment and good faith effort to develop and execute a successor agreement for full fire department services.

ARTICLE III
DUTIES OF CARMEL UNDER THIS AGREEMENT

3.1 Payment for Fire Services. Carmel agrees to compensate Monterey for all services provided pursuant to the terms and conditions of this Agreement as follows:

(a) $11,250.00 per calendar month, prorated at $375.00 per day, or any portion of a day, for services provided during any partial calendar month.

ADOPTED BY:
CITY OF CARMEL-BY-THE-SEA, A Municipal Corporation

By: Rich Guillen, City Administrator
Date: 12/31/08

CITY OF MONTEREY, A Municipal Corporation
By: Fred Meurer, City Manager
Date: 1/20/09


Amendment to Agreement to Provide Limited Fire Services between the Cities of Monterey and Carmel-By-The-Sea

ARTICLE I
TERM OF AGREEMENT

1.2 Extension of Term. The term of this Agreement is hereby amended to expire at 12:00 midnight on January 31, 2010.

ARTICLE III
DUTIES OF CARMEL UNDER THIS AGREEMENT

3.1 Payment for Fire Services. Carmel agrees to compensate Monterey for all services provided pursuant to the terms and conditions of this Agreement as follows:

(a) Effective July 1, 2009, $13,500.00 per calendar month, prorated at $450.00 per day or any portion of a day, for services provided during any partial calendar month.

ADOPTED BY:

CITY OF CARMEL-BY-THE-SEA, A Municipal Corporation

By: Rich Guillen, City Administrator
Date: 7-8-09

CITY OF MONTEREY, A Municipal Corporation

By: Fred Meurer, City Manager
Date: 7/26/09


Amendment #2 to Agreement to Provide Interim Fire Administration and Emergency Incident Management Services between the Cities of Monterey and Carmel-By-The-Sea

ARTICLE I
TERM OR AGREEMENT

1.2 Extension of Term. The term of this Agreement is hereby amended to expire at 12:00 midnight on December 31, 2010. The term of this Agreement may be further extended by mutual agreement of the Parties conditioned upon joint commitment and good faith effort to develop and execute a successor agreement for full fire department services.

All other remaining terms and conditions of the Agreement not specifically amended herein shall remain unchanged.

ADOPTED BY:

CITY OF CARMEL-BY-THE-SEA. A Municipal Corporation

By: Rich Guillen, City Administrator
Date: 1-25-10

CITY OF MONTEREY, A Municipal Corporation

By: Fred Meurer, City Manager
Date: 2-2-10

CRA Board of Directors Committee ‘CARMEL HARASSMENT SUIT’ Report & New Information Highlights

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.


CRAReport_CarmelHarassmentSuit
CARMEL’S HARASSMENT SUIT
A Report Prepared for Members of the Carmel Residents Association
By a Committee of the Board of Directors
November 11, 2010

NEW INFORMATION HIGHLIGHTS:

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.

COUNCILMEN JASON BURNETT & KEN TALMAGE: ‘Guillen's actions demand resignation for good of Carmel’ Guest Commentary, The Monterey County Herald

ABSTRACT: The Monterey County Herald today published a Guest Commentary by City Councilmen Jason Burnett and Ken Talmage; the Guest Commentary is entitled: “Guillen's actions demand resignation for good of Carmel.” HIGHLIGHTS from the Guest Commentary are presented. In their Guest Commentary, Burnett and Talmage conclude “Rich Guillen should resign.”

Guillen's actions demand resignation for good of Carmel
By JASON BURNETT and KEN TALMAGE
Guest commentary, 11/02/2010

HIGHLIGHTS:
”Carmel City Administrator Rich Guillen should resign for the good of our community.”

“For several reasons, we have come to the conclusion that Guillen should resign. He was not truthful with the private investigator and the council. Guillen exhibited poor judgment and violated Carmel's written ethics policy. Guillen's actions did not meet the ethical standards expected of public officials and our city administrator.”

“In sum, Guillen no longer has the credibility to serve effectively as city administrator.”

“The question now is, what is best for our town and community going forward? The time for further discussion of this matter has passed. Now is the time for action. Rich Guillen should resign.”

CAROLYN HARDY and LINDA ANDERSON: ‘Guillen is Carmel liability’ Guest Commentary, The Monterey County Herald

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.”

Guillen is Carmel liability
By CAROLYN HARDY and LINDA ANDERSON
Guest commentary
Posted: 10/08/2010

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."

ADDENDUM:
Sexual harassment documents reveal poor handling of case by city
CARMEL RESIDENTS ASSOCIATON NEWS OCTOBER 2010

WESTERN City, THE MONTHLY MAGAZINE OF THE LEAGUE OF CALIFORNIA CITIES: 'Closed Session Leaks: Discretion Is The Better Part of Valor — and Ethics'

ABSTRACT: A link to the article, "Closed Session Leaks: Discretion Is The Better Part of Valor — and Ethics,” October 2010, WESTERN City, THE MONTHLY MAGAZINE OF THE LEAGUE OF CALIFORNIA CITIES, suggested reading from Fire Rich, is provided. A COMMENT is made.

The article, “Closed Session Leaks: Discretion Is The Better Part of Valor — and Ethics,” October 2010, WESTERN City, THE MONTHLY MAGAZINE OF THE LEAGUE OF CALIFORNIA CITIES, addresses a question about an elected official frequently disclosing information from closed session discussions.

COMMENT:
There is no dispute about the Brown Act specifically prohibiting the disclosure of confidential information acquired in closed sessions to a person or persons not entitled to receive it, “unless the legislative body authorizes disclosure of that confidential information” and the Courts decisions that elected officials do not have a “free-expression right” to share confidential information. There is, however, a dispute about whether an individual city council member voicing his/her opinion that it would be in the best interest of Carmelites and the City of Carmel-by-the-Sea for City Administrator Rich Guillen to leave city employment constitutes “confidential information” acquired in closed sessions.

Regardless, since city council members have chosen not to publicly give their personal opinions and judgments about the future city employment of City Administrator Rich Guillen, it is incumbent on Carmelites to eventually hold them to the following standard, as described in the article, as follows:

“...once the negotiations are concluded fuller disclosure may occur so the public can hold its representatives accountable for the decisions made in closed session. Agency officials may collectively decide to routinely disclose such information at the appropriate time, in the spirit of transparency and the public interest.”

CONVICTION POLITICIANS Take Public Stands

ABSTRACT: Selected excerpts from a letter to the editor by former Mayor Ken White is juxtaposed against an “Update” from City Councilman Jason Burnett regarding City Administrator Rich Guillen and the City Council. A Comment is made about conviction politicians.

In the 10 September 2010 edition of The Carmel Pine Cone, former Mayor Ken White wrote, in part, as follows:

“As a former mayor and after 52 years in Carmel, I’ve never witnessed a scandal grip our community like the one created by Carmel City Administrator Rich Guillen’s misbehavior. His unacceptable conduct, in violation of our city’s harassment policy and Code of Ethics, caused the city to settle five separate claims totaling in excess of $1.1 million.”

“...the scandal now shifts to the shoulders of some indecisive city council members who cannot come to grips with right from wrong behavior...Rich Guillen has lost our trust and all credibility...The community cannot move forward until council members directly and decisively withdraw support of Guillen so he may announce his retirement.”

“...Have Carmel residents, complacent in comfortable lives, become so immune to misbehavior at city hall they will tolerate even the most egregious in our midst? For the good of our community, I urge everyone to request swift action of the city council to ensure that Guillen goes — one way or another.”

(Source: Guillen must go, Ken White, Carmel, The Carmel Pine Cone, September 10, 2010, 20A)

After the last closed session at City Hall on Thursday, September 23, City Councilman Jason Burnett wrote, in part, as follows:

“UPDATE: ...Some have asked why I have not yet said publicly what I think should happen. My best judgment tells me to wait so I don't jeopardize progress being made. I will take the opportunity to share my thoughts at the appropriate time. Right now, I am focused on getting the best outcome for Carmel even if it takes longer than any of us want.”

(Source: City Administrator review, Jason Burnett, Carmel-by-the-Sea COMMUNITY CONVERSATION)

COMMENT:
• Conviction politicians take public stands; self-serving, politically correct politicians rationalize why they cannot take public stands. Moreover, by voicing strong opinions based on convictions, conviction politicians promote discussion of issues, such as sexual harassment, employment discrimination, retaliation, thereby involving all citizens in a robust, healthy debate, and most importantly, making an outcome an extension of the will of the people, not solely a decision of representatives meeting in secret closed sessions.

Carolyn Hardy: 'It is incumbent upon the City Council to restore integrity and dignity to City Hall by removing the offender whose actions have brought dishonor to Carmel.'

ABSTRACT: During Public Appearances at the 3 August 2010 City Council meeting, resident Carolyn Hardy addressed the public on the subject of sexual harassment at City Hall and Jane Miller’s lawsuit. Hardy’s remarks are transcribed. A COMMENT is made.

CITY COUNCIL REGULAR MEETING
CITY OF CARMEL-BY-THE-SEA
Tuesday, August 3, 2010
City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

VI. Public Appearances
Anyone wishing to address the City Council on matters within the jurisdiction of the City that are not on today’s agenda may do so now. Matters not appearing on the City Council’s agenda will not receive action at this meeting but may be referred to staff for a future meeting. Presentations will be limited to three (3) minutes, or as otherwise established by the City Council. Persons are not required to give their names, but it is helpful for speakers to state their names in order that the City Clerk may identify them in the minutes of the meeting. Always speak into the microphone, as the meeting is recorded. The City Council Chamber is equipped with a portable microphone for anyone unable to come to the podium. If you need assistance, please advise City Clerk Heidi Burch as to which item you wish to comment on and the microphone will be brought to you.

“Carolyn Hardy. I am conveying thoughts here on behalf of myself and my husband. The huge turnout at Jason’s town hall meeting yesterday evidenced the depth and breath of concern, frustration, and anger over the circumstances revealed in Jane Miller’s sexual harassment lawsuit. But just because the lawsuit has been settled does not mean the problems have gone away, the liability still remains. And I regret deeply that I feel compelled to say this, but our small town has experienced enough shame over this. It is time to make a change at City Hall. The damage done is not just monetary; our damages include loss of employee morale and loss of a safe work environment that’s free from harassment, intimidation and retaliation. It is time for Rich Guillen to leave either by departure or removal. Without a clean start this community and City Hall cannot forget and cannot heal.”

“I too have experienced sexual harassment in the workplace, in the 70s when there were no policies to prohibit it and no remedies to correct it. It is insidious, it affects your work and your work relationships, it is not something you can wave off. You endure it to keep your job or you leave to escape it.”

“I am incensed that our local newspaper would imply that determination of whether sexual harassment occurred depended on the victim’s response. That is in the same vein as implying a rape victim may have enjoyed the experience. The paper’s editor attempts to turn the victim into a villain.”

“During a recent election forum two council members said that if either knew of sexual harassment in the workplace neither would tolerate it. Well, because of the documents from Miller’s lawsuit we have concrete evidence that sexual harassment flourished. Most telling were the documents that surfaced in response to the city’s attempt to disqualify the plaintiff’s attorney. We now have a clearer picture of what has been going on at City Hall and the evidence revealed in emails from Rich to Jane Miller contradicted all the denials and likely led to the settlement. It is incumbent upon the City Council to restore integrity and dignity to City Hall by removing the offender whose actions have brought dishonor to Carmel.”


(Archived Videos, August 03, 2010, 29:05 - 31:50)

COMMENT:
• Carolyn Hardy’s comments are articulate and courageous. She is absolutely correct in her comments that “The paper’s editor attempts to turn the victim into a villain,” “It is time for Rich Guillen to leave either by departure or removal. Without a clean start this community and City Hall cannot forget and cannot heal” and “It is incumbent upon the City Council to restore integrity and dignity to City Hall by removing the offender whose actions have brought dishonor to Carmel.”

COMMENTARY: City Attorney Don Freeman’s Culpability in the Culture of Harassment, Discrimination and Retaliation

At the 3 August 2010 City Council meeting, City Attorney Don Freeman presented himself as a city attorney who honors the rule of law, at least with regard to city employee confidentiality laws. However, his record as city attorney since 2003 shows the City Attorney knew about city employees’ claims of “hostile” workplace environment and forced “early retirement.” Moreover, in the Jane Miller case, the City Attorney’s “failures,” errors and omissions, and “silences” have arguably contributed significantly to the continuance of a culture of harassment, discrimination and retaliation in the city government of Carmel-by-the-Sea.

EVIDENCE:

• In 2003, the City Attorney was aware of negotiations between City Administrator Rich Guillen and attorney Michael Stamp involving Stamp’s representation of Assistant City Administrator Greg D’Ambrosio and Community and Cultural Director Brian Donoghue; both made serious employment discrimination claims against the City and City Administrator, including claims of "hostile work environment" and "forced early retirement." In fact, with regard to the Assistant City Administrator, City Attorney Freeman specifically authorized Stamp to meet directly with the City Administrator to try to negotiate the claims. With regard to the Community and Cultural Director, in 2003, Donoghue advised the City Attorney that he was concerned about retaliation relating to his role in reporting certain issues.

• In 2006, the City Attorney was advised by the City Administrator regarding negotiations between Stamp and the City Administrator involving serious employment discrimination claims against the City and the City Administrator by Library Director Margaret Pelikan, including allegations of "hostile work environment, forced retirement and the City Administrator’s favoritism towards Christie Miller." The City Attorney approved and signed off for the City on the settlement agreement.

• In 2008, the City Attorney was involved with the negotiations regarding Executive Assistant Sandy Farrell’s discrimination claims against the City and the City Administrator, including claims of "hostile work environment and forced retirement." The City Attorney approved the settlement agreement.

Note: The four cases from 2003 to 2009 resulted in the City paying negotiation payments of more than $500,000 to the four employees, which the City considered to be “significant.”

• In May 2008, attorney Michael Stamp, in his representation of Human Resources Manager Jane Miller, wrote a May 20 letter to the Mayor and City Council, with a copy to the City Attorney, raising Miller’s claims of "sex-based discrimination, age-based discrimination, sexual harassment and retaliation against the City and the City Administrator." The City Attorney recognized Stamp’s role as Miller’s litigation counsel if the case did not settle.

• In May 2008, the City Attorney’s Office wrote a May 22 letter to Jane Miller’s attorney Michael Stamp that City Attorney Don Freeman would “prepare a response” to Stamp’s May 20, 2008 letter when he returned from a trip on June 2, 2008. The City Attorney never responded in writing to the May 20, 2008 letter. He later communicated to attorney Michael Stamp by telephone that he was letting Liebert Cassidy speak for him, and that he had ordered Liebert Cassidy Whitmore to assign a senior attorney to the matter.

• In September/October 2008, the City Attorney reviewed an Employee Agreement between the City and City Administrator Rich Guillen approving a retroactive compensation increase of $14,500, which was unanimously approved by the Mayor and City Council at the October 7, 2008 City Council meeting.

• In October 2008, Stamp provided the City Attorney with a letter summarizing the problems with the City’s lack of action since May 20, 2008. The City failed to respond.

• In late October 2008, Stamp provided the City Attorney with an original letter and five copies of a 13 page statement by Jane Miller. The City failed to respond.

• In November 2008, Stamp had a telephone conversation with the City Attorney concerning City Council discussions in regard to Jane Miller, particularly about the City Attorney’s question as to whether Miller had copies of emails to support her allegations. “The City Attorney made a statement about the Mayor and the City Administrator’s conduct, which highlighted the seriousness and significance of Miller’s claims.” Stamp explained to the City Attorney that Miller had received more than one hundred non-work-related emails - not including instant messages and telephone calls – from the City Administrator over several years.

• August 7, 2008 – January 16, 2009: “Investigation” by private investigator/attorney Karen Kramer; Kramer interviewed twelve witnesses, eleven current employees and one former employee, including “a majority of the witnesses Ms. Miller identified in her written complaints.” However, Kramer did not interview Employee #1 (Assistant City Administrator Greg D’Ambrosio), Employee #2 (Community and Cultural Director Brian Donoghue), Employee #3 (Library Director Margaret Pelikan) and Employee #4 (Executive Assistant Sandy Farrell).

• February 9, 2009: Letter, Re: Notice of Completion of Investigation – Jane Miller’s Workplace Complaints, from Liebert Cassidy Whitmore (LCW) to attorney Michael Stamp stating “Based on Ms. Kramer’s findings and conclusions the City has determined that Ms. Miller’s allegations are not substantiated. Accordingly, this investigation is now closed and deemed completed.”

• In September 2009, LCW, presumably with the authorization of the City Attorney, filed a motion by Defendant City of Carmel-by-the-Sea to disqualify plaintiff’s counsel. Incredibly, the City had Assistant City Administrator/City Clerk Heidi Burch make a declaration which “provided the primary evidentiary basis for the City’s motion to disqualify attorney Michael Stamp” from representing his client, Jane Miller. Burch's declaration was characterized as “insubstantial and inadmissible.” In fact, the Burch declaration was characterized as an “interested person’s unqualified conclusions.” Moreover, Burch was not only unqualified to make conclusions about documents, she was not associated with the City when attorney Michael Stamp performed work for the City and she herself was directly implicated in the lawsuit as “Female B.”

•In the Court’s denial of Defendant City of Carmel-by-the-Sea’s Motion to Disqualify Plaintiff’s Counsel, Judge Larry E. Hayes wrote on February 3, 2010, as follows:

The City had actual knowledge of any claim of a potential conflict beginning in 2003 when Mr. Stamp represented the first senior City employee in his employment claims against the City. Between 2003 and 2008, Mr. Stamp represented an additional three senior City employees in their employment claims against the City.

The City failed to prove that the City performed a reasonable investigation into the potential merits of the disqualification motion by interviewing the key City personnel, including the City Attorney. The Court finds disingenuous the City’s assertion that the actual knowledge of material facts by the City Attorney need not be inquired into by the City’s lawyers or disclosed by the City in regard to this motion. The Court finds that City Administrator Richard Guillen and City Attorney Don Freeman knew about the former representations during the pertinent time period. The weight of the evidence shows that those individuals would have had specific knowledge about those former representations...

• The City Attorney announced a settlement in the Jane Miller case after a Closed Session on July 13, 2010: “This settlement means all parties avoid the further burden and expense of litigation and the uncertainty of a jury trial. By resolving this matter and avoiding months of litigation and expenses, we can look forward to redirecting more energy and resources to the many challenges facing the city in these uncertain economic times.” The City Council's unanimous approval of the $600,000 settlement, paid by the City's insurance agency, California State Association of Counties (CSAC) Excess Insurance Authority (EIA), was approved at the recommendation of EIA.

• At the August 2010 City Council meeting, City Attorney Don Freeman emphasized that the “investigation” was not conducted by the city, but rather by the city’s original law firm, LCW. Yet, the City embraced the findings and conclusions of the “investigation” when the City Attorney knew, or should have known, that the “investigation” was not a thorough and complete investigation.

CONCLUSION
The weight of the evidence suggests that the City Attorney’s “failures,” errors and omissions, and “silences” had the net effect of protecting and shielding from public accountability the city administrator, mayor and city council members at the expense of city employees, citizens and the city’s reputation. Moreover, the City Attorney not only committed “failures,” errors and omissions, and “silences,” but he reviewed and approved a retroactive $14,500 compensation increase for the City Administrator within five months of receipt of attorney Michael Stamp’s May 20, 2008 letter outlining Jane Miller’s complaints and during a yet to be concluded “investigation” into Jane Miller’s claims. The Mayor and City Council later unanimously approved the Employment Agreement between the City and City Administrator Rich Guillen at the 7 October 2010 City Council meeting.

While the City’s Code of Ethics states “Our actions are deemed representative of those we serve and our function, therefore, carries with it a greater responsibility than that of the private enterprise employee,” the Mayor and City Council have had most recently over two years, since May 2008, to take appropriate action and have failed to date to take appropriate action whereas in the private section recently, the Board of Hewlett-Packard acted swiftly and decisively (within one month) by conducting an investigation which concluded that the CEO had violated the company’s ethics code thus precipitating CEO Mark Hurd’s resignation. As HP General Counsel Michael Holston stated, Hurd “demonstrated a profound lack of judgment that seriously undermined his credibility and damaged his effectiveness in leading HP.” “The board took immediate action in this matter and their decision was right and necessary to uphold HP’s values of trust, respect and uncompromising integrity.”

Moreover, as Charles Elson, director of the corporate governance centre at the University of Delaware stated: “Once trust is broken between a CEO and a board, it makes it harder to have confidence in anything he says in future. He had to go.” Similarly, in the City of Carmel-by-the-Sea, trust has been irreparably broken between the City Administrator and the denizens of Carmel-by-the-Sea. Ergo, the City Administrator has to go!

COMMENTARY: THE CASE FOR THE REMOVAL OF CITY ADMINISTRATOR RICHARD I. GUILLEN

The City of Carmel-by-the-Sea’s Code of Ethics states, as follows:

Article I. Code of Ethics
2.52.010 Code of Ethics.

As public employees we are entrusted with the confidence of those we serve to fulfill the responsibilities of our roles. Our actions are deemed representative of those we serve and our function, therefore, carries with it a greater responsibility than that of the private enterprise employee. Our system of government is viewed by the public through our acts as we fulfill the demands of our positions. We must demonstrate competency, integrity, honesty, courtesy and fairness in all relationships, private and public, to best represent the type of government desired by all. We have a patriotic duty to fulfill our roles in the highest standard possible for the purpose of assuring exemplary government for all people. A departure from this ideal creates an injustice for all. (Ord. 87-1 § 2, 1987).
(Source: Carmel-by-the-Sea Municipal Code)

The Employment Agreement between City Administrator Richard I. Guillen and the City of Carmel-by-the-Sea states, in part, as follows:

EMPLOYMENT AGREEMENT
THIS AGREEMENT is between the CITY OF CARMEL-BY-THE-SEA ("CITY") and RICHARD I. GUILLEN ("EMPLOYEE")

AGREEMENT
A. DUTIES
1. CITY agrees to employ RICHARD I. GUILLEN as City Administrator of the City of Carmel-by-the-Sea to perform the functions and duties specified in the ordinances and resolutions of the CITY, and to perform other legally permissible and proper duties and functions as the City Council may from time to time assign.

2. EMPLOYEE shall perform his duties to the best of his ability in accordance with the highest professional and ethical standards of the profession and shall comply with all rules and regulations established by the CITY.

EVIDENCE:
Assertion, “under penalty of perjury under the laws of the State of California,” by City Administrator Rich Guillen:
“I am not an attorney and have no legal training.” (SUPPLEMENTAL DECLARATION OF RICH GUILEN, November 13, 2009, page 69, Miller 2 of 2)

Guillen’s Assertion contradicted by Michael Stamp, Attorney representing former Human Resources Manager Jane Miller:
"Mr. Guillen’s statement that he has “no legal training” is not truthful: Mr. Guillen attended law school for two years, speaks frequently about his experience there, and claims to have a continuing interest in all things legal. He also has a great deal of familiarity in public agency litigation, including direct involvement in extensive personnel litigation with Liebert Cassidy while Guillen worked as a top official in the City of Seaside City Manager’s Office. Guillen’s legal training comes from law school, direct professional managerial involvement in two different cities, and on the job training as the City’s top professional administrator."

"Mr. Guillen’s claim of ignorance of the law says volumes about the insufficiency of the City’s showing and the lack of credibility."
(PLAINTIFF’S CLOSING MEMORANDUM OF POINTS AND AUTHORIES IN REPLY TO CITY’S BRIEFING, December 4, 2009, page 126, Miller 2 of 2)

Assertions, “under penalty of perjury under the laws of the State of California,” by City Administrator Rich Guillen:
Greg D’Ambrosio (“Employee Number 1”)
"In 2003, Greg D’Ambrosio was the Assistant City Administrator and had worked for the City for 23 years. I do not recall Mr. D’Ambrosio ever making any allegation or claims that he felt he was being harassed or treated in any particular manner because of member in any protected status. Mr. Stamp contacted me in 2003, told me he represented Mr. D’Ambrosio and that Mr. D’Ambrosio wanted to retire and receive the golden handshake. Mr. Stamp did not make any allegations of discrimination on Mr. D’Ambrosio’s behalf, and I understood that Mr. D’Ambrosio had retained Mr. Stamp to help him navigate the complexities of PERS."
(DECLARATION OF RICH GUILLEN, October 13, 2009, page 235 – 236, Miller 1 of 2)

Brian Donoghue (“Employee Number 2”)
"In 2003, Brian Donoghue was employed as the City’s Community and Cultural Director and had worked for the City for 13 years."

"Mr. Stamp contacted me in 2003, told me her represented Mr. Donoghue and that Mr. Donoghue wanted to retire and receive the golden handshake. Mr. Stamp did not make any allegations of discrimination on Mr. Donoghue’s behalf, and I understood that Mr. Donoghue had retained Mr. Stamp to help him navigate the complexities of PERS."
(DECLARATION OF RICH GUILLEN, October 13, 2009, pages 236 – 237, Miller 1 of 2)

Margaret Pelikan (“Employee Number 3”)
"In August 2006, Mr. Stamp emailed me that he represented Margaret Pelikan, who at that time was employed as the City’s Library Director. Mr. Stamp stated in the email that Ms. Pelikan was turning 55 in June and that she would like to retire with the golden handshake and receive paid leave and annual performance bonus…Prior to being contacted by Mr. Stamp on Ms. Pelikan’s behalf, Ms. Pelikan had never made any allegation, to my knowledge, that she was being treated differently based on her gender or forced to retire. I understood that Ms. Pelikan had retained Stamp to help her navigate the complexities of PERS and of obtaining paid leave within the legal constraints applicable to public employment."
(DECLARATION OF RICH GUILLEN, October 13, 2009, pages 237 – 238, Miller 1 of 2)

Sandy Farrell (“Employee Number 4”)
"In February 2008, Mr. Stamp contacted me by email stating that he represented Sandy Farrell, who was working as an Executive Assistant for the City...Mr. Stamp conveyed to me that Ms. Farrell wanted to retire and wanted the golden handshake. At this point, Ms. Farrell had worked for the City for 25 years."

"...Mr. Stamp never mentioned during any of our discussions regarding Ms. Farrell, any “possible allegation” or “possible claims” of Ms. Farrell. Nor had Ms. Farrell made any claims or allegations about being “forced into early retirement.” …I understood that Ms. Farrell had retained Stamp to help her navigate the complexities of PERS and of obtaining paid leave within the legal constraints applicable to public employment."
(DECLARATION OF RICH GUILLEN, October 13, 2009, pages 238 – 239, Miller 1 of 2)

"...I viewed Mr. Stamp’s involvement in the retirements of Mr. D’Ambrosio and Mr. Donoghue as beneficial for the City, because the employees wanted to retire, and the City had put in place a golden handshake in order to encourage early retirements, and Mr. Stamp was simply facilitating a result that was positive for the City."

"I viewed Mr. Stamp’s involvement as beneficial for the City, because he was facilitating early retirements that were saving the City in personnel costs."
(SUPPLEMENTAL DECLARATION OF RICH GUILEN, November 13, 2009, page 69, Miller 2 of 2)

Guillen’s Assertions Contradicted by Michael Stamp, Attorney representing former Human Resources Manager Jane Miller:
EVIDENTIARY OBJECTIONS TO THE GUILLEN DECLARATION, October 22, 2009:
OBJECTION NO. 1
Statement objected to: “In August 2006, Mr. Stamp emailed me that he represented Margaret Pelican, who at that time was employed as the city’s Library Director. Stamp stated in the email that Pelikan was turning 55 in June and that she would like to retire with the golden handshake and would like to receive paid leave and her annual performance bonus.” (Guillen Declaration)

"Grounds for objection: Mr. Guillen’s characterization of the email from Stamp is not accurate and is hearsay...The email makes no mention of the “golden handshake,” mentions a possible “release of claims,” and seeks, inter alia, 18 months’ salary and benefits to be paid by the City. The characterization by Guillen is undeniably inaccurate."

OBJECTION NO. 2
Statement objected to: “In February 2008, Mr. Stamp contacted me by email stating that he represented Sandy Farrell, who was working as an Executive Assistant for the City, and that he would like to meet with me to discuss her employment. Mr. Stamp conveyed to me that Ms. Farrell wanted to retire and wanted the golden handshake.” (Guillen Declaration.)

"Mr. Guillen’s characterization of the email is hearsay and misleading. Mr. Guillen’s testimony inserts this sentence into the email: “Ms. Farrell wanted to retire and wanted the golden handshake” (which is not in the email and was not communicated). He uses that made-up sentence to take the place of the actual text...'I am available to come to your Office, or to meet here in Monterey if that is more convenient.'"
(EVIDENTIARY OBJECTIONS TO THE GUILLEN DECLARATION, October 22, 2009, pages 286 – 287, Miller 1 of 2)

"Because that claim by the City was meritless, the City then tried to claim that the 2003 to 2008 representation of four senior City employees by Mr. Stamp did not involve claims by the employees, or that the City offered the employees a “golden handshake” or that the employees hired Stamp because of the complicated PERS issues. Miller demonstrated that the City was not telling the truth, that the employees raised claims of a “hostile” work environment and of gender-based discrimination, as well as claims of forced retirement, and that the emails relied upon by Guillen as proof did not say what Guillen claimed."
(PLAINTIFF’S CLOSING MEMORANDUM OF POINTS AND AUTHORIES IN REPLY TO CITY’S BRIEFING, December 4, 2009, page 125, Miller 2 of 2)

"In 2002, I represented the first of the four Carmel employees referenced in the pleadings filed in this case. At no point did I communicate to Mr. Guillen or anyone that my clients wanted “Golden Handshakes,” or that I was retained as a PERS expert. The claims of my clients went far beyond the handshakes, and I have never tried to be or act as a PERS expert. Mr. Guillen told me that Jane Miller was the most knowledgeable person at Carmel City Hall about PERS and she handled the PERS issues in all four settlements, including the necessary City Council approvals."

"There is no doubt that the four Carmel employees all raised significant claims that went beyond what the City had offered them, and that Mr. Guillen was fully aware of those claims and issues. The claims included hostile work environment, Mr. Guillen’s favoritism toward select females, and age and gender discrimination. Mr. Guillen and I talked about those claims, and he and I negotiated settlements. There is nothing in my history with Mr. Guillen or in any other communication that ever took place that would reasonably suggest to Mr. Guillen that I was not willing to litigate those very claims against the City if they could not be settled."
(DECLARATION OF MICHAEL W. STAMP, December 4, 2009, page 148 -149, Miller 2 of 2)

Guillen’s Assertions Contradicted by former Human Resources Manager Jane Miller:
"Between 2003 and 2008, I participated in the matters raised by Mr. Stamp on behalf of the four other senior employees who hired Mr. Stamp as their attorney to address serious personnel matters. I spoke directly with Richard Guillen on those matters. In all four matters, I was the person who handled the PERS issues for the City and the employees. The PERS issues were not complicated issues, and there would have been no need for an employee to hire an attorney on those PERS matters. Mr. Guillen never indicated in any way to me that Mr. Stamp was working on PERS issues."

"I knew while the four employee matters were being negotiated that at least two of the four senior employees raised serious issues about hostile work environment and discriminatory treatment in the workplace, and that the other two raised issues about punitive and arbitrary treatment by the City as part of their issues about being forced from their employment by the City. I discussed those matters with Mr. Guillen."

"...These four settlements were not “golden handshakes,” contrary to what Guillen has now claimed in this litigation. I am the person who prepared the financial analysis for each of the settlements, and I presented the information to Guillen. All four matters involved significant compensation, including cash payments or severance pay, that were not available otherwise."
(DECLARATION OF JANE KINGSLEY MILLER, December 4, 2009, page 155 – 156, Miller 2 of 2)

Guillen’s Assertions Contradicted by Honorable Larry E. Hayes, Judge, Superior Court of Monterey County:
"The City had actual knowledge of any claim of a potential conflict beginning in 2003 when Mr. Stamp represented the first senior City employee in his employment claims against the City. Between 2003 and 2008, Mr. Stamp represented an additional three senior City employees in their employment claims against the City."

"...Mr.Stamp, over a period of five years, represented four senior City employees with claims similar to Ms. Miller."

"The Court finds that City Administrator Richard Guillen and City Attorney Don Freeman knew about the former representations during the pertinent time period. The weight of the evidence shows that those individuals would have had specific knowledge about those former representations..." (ORDER AFTER HEARING, Hon. Larry E. Hayes, February 3, 2010, pages190 - 191, Miller 2 of 2)

Conclusion

In closing, the weight of the evidence shows that City Administrator Rich Guillen violated the City of Carmel-by-the-Sea’s Code of Ethics by not demonstrating “competency, integrity, honesty, courtesy and fairness in all relationships, private and public, to best represent the type of government desired by all” and violated his Employee Agreement with the City by not adhering to “the highest professional and ethical standards” and complying with “all rules and regulations established by the CITY.” Moreover, City Administrator Rich Guillen’s dishonesty, disrespect for the law, specifically the rights of city employees, and failure to take responsibility for his unprofessional and unethical conduct demonstrate that he cannot continue in a position of public trust. Therefore, it is incumbent on the City Council to meet in closed session and vote to terminate City Administrator Rich Guillen from employment with the City of Carmel-by-the-Sea.

NOTE: Jane Miller, former Human Resources Manager, was the fifth senior city employee to hire attorney Michael Stamp and make serious claims against the City. The first four matters settled, with the Mayor and City Council agreeing to pay in excess of $500,000 total compensation between 2003 and 2008. Recently, the Mayor and City Council unanimously agreed to pay in excess of $600,000 total compensation to Jane Miller.

MONTEREY COUNTY SUPERIOR COURT: Jane Kingsley Miller v. City of Carmel-by-the-Sea, et al. (M99513) (Volume 1)

ABSTRACT: In anticipation of City Council Member Jason Burnett’s Town Hall Meeting on the Jane Miller case on Monday, August 2, 2010 from 8:30 A.M. – 10:00 A.M. in the Babcock Room at the Sunset Center, the court record for the case is presented; Volume 1 (318 pages) and Volume 2 (192 pages), following post.

Town Hall Meeting Registration

Lawsuit Settlement
by Jason Burnett on July 23, 2010 - 1:38pm


Miller 1 of 2

MONTEREY COUNTY SUPERIOR COURT: Jane Kingsley Miller v. City of Carmel-by-the-Sea, et al. (M99513) (Volume 2)

ABSTRACT: In anticipation of City Council Member Jason Burnett’s Town Hall Meeting on the Jane Miller case on Monday, August 2, 2010 from 8:30 A.M. – 10:00 A.M. in the Babcock Room at the Sunset Center, the court record for the case is presented; Volume 2 (192 pages).

Town Hall Meeting Registration

Lawsuit Settlement
by Jason Burnett on July 23, 2010 - 1:38pm


Miller 2 of 2

‘Carmel Freak Show’

ABSTRACT: “The Wiz,” an astute city government observer, wrote on the Monterey County Weekly’s website that “Sue runs the Carmel freak show,” characterized by “disturbing and predatory” conduct by City Administrator Rich Guillen and Mayor Sue McCloud disallowing the termination of “this abuser of a woman’s right to a harassment-free workplace.” The “Carmel freak show” is juxtaposed against the duties, responsibilities and obligations of the Mayor and City Council and the City Administrator in the form of excerpts from the Carmel-by-the-Sea Municipal Code and EMPLOYMENT AGREEMENT between the CITY OF CARMEL-BY-THE-SEA ("CITY") and RICHARD I. GUILLEN ("EMPLOYEE").

Carmel-by-the-Sea Municipal Code
Article I. Code of Ethics
2.52.010 Code of Ethics.

As public employees we are entrusted with the confidence of those we serve to fulfill the responsibilities of our roles. Our actions are deemed representative of those we serve and our function, therefore, carries with it a greater responsibility than that of the private enterprise employee. Our system of government is viewed by the public through our acts as we fulfill the demands of our positions. We must demonstrate competency, integrity, honesty, courtesy and fairness in all relationships, private and public, to best represent the type of government desired by all. We have a patriotic duty to fulfill our roles in the highest standard possible for the purpose of assuring exemplary government for all people. A departure from this ideal creates an injustice for all. (Ord. 87-1 § 2, 1987).

EMPLOYMENT AGREEMENT
THIS AGREEMENT is between the CITY OF CARMEL-BY-THE-SEA ("CITY") and RICHARD I. GUILLEN ("EMPLOYEE")

A. DUTIES
1. CITY agrees to employ RICHARD I. GUILLEN as City Administrator of the City of Carmel-by-the-Sea to perform the functions and duties specified in the ordinances and resolutions of the CITY, and to perform other legally permissible and proper duties and functions as the City Council may from time to time assign.

2. EMPLOYEE shall perform his duties to the best of his ability in accordance with the highest professional and ethical standards of the profession and shall comply with all rules and regulations established by the CITY.

3. EMPLOYEE shall not engage in any activity, which is or may become a conflict of interest prohibited contract, or which may create an incompatibility of office as defined under California law. Prior to performing any services under this Agreement and annually thereafter, the EMPLOYEE shall complete and file all disclosure forms required by law

D. RESIGNATION AND TERMINATION
1. EMPLOYEE may resign at any time upon providing CITY with at least sixty (60) days advance written notice of the effective date of his resignation.

2. The City Council may at any time terminate EMPLOYEE upon sixty (60) days advance written notice.

3. The parties recognize and affirm that:
a. EMPLOYEE is an "at will" employee whose employment may be terminated by the City Council without cause; and

b. There is no express or implied promise made to EMPLOYEE for any form of continued employment. This Agreement is the sole and exclusive basis for an employment relationship between EMPLOYEE and the CITY.

4. For the ninety (90) day period immediately following a general or special election at which a City Council member is elected to office the City Council agrees not to terminate the services of EMPLOYEE without cause.

5. Any deliberations and decisions by the CITY regarding the termination of EMPLOYEE'S services shall be made in closed session in accordance with the Ralph M. Brown Act. Except where the EMPLOYEE is charged with or alleged to have committed criminal misconduct or acts involving moral turpitude, and if the CITY has determined to terminate EMPLOYEE'S services, the CITY shall provide EMPLOYEE the opportunity to resign in lieu of being terminated, and the parties shall cooperate regarding public announcements regarding EMPLOYEE'S separation from the CITY

Carmel-by-the-Sea Municipal Code
Chapter 2.08
CITY ADMINISTRATOR*
2.08.080 Removal of the City Administrator.

The City Administrator serves at the pleasure of the City Council and may be removed by a four-fifths vote of the full City Council. In removing the City Administrator, the Council has absolute discretion and its action is final and conclusive and does not depend upon any findings. (Initiative Measure, November 8, 1983; Ord. 77-22 § 1, 1977; Code 1975 § 233).

SPECIAL CITY COUNCIL MEETING: Fiscal Years 2010/11 – 2012/13 Triennial Budget

ABSTRACT: WHAT, WHEN & WHERE of the SPECIAL CITY COUNCIL MEETING on Fiscal Years 2010/11 – 2012/13 Triennial Budget is presented with links to the Agenda and Draft Budget. COMMENTS are made on the DRAFT BUDGET.

WHAT: Fiscal Years 2010/11 – 2012/13 Triennial Budget Study Session & Public Hearing

WHEN: Thursday, May 20, 2010 @ 4:30 P.M.

WHERE: Council Chambers
East side of Monte Verde Street between Ocean Avenue and Seventh Avenue
Carmel-by-the-Sea, CA.

COMMENTS:
The Fiscal Years 2010/11 – 2012/13 Triennial Budget is debatable and problematic, for many reasons, including, as follows:

• City Administrator Rich Guillen’s BUDGET MESSAGE FOR FISCAL YEARS 2010/2011 THROUGH 2012/2013 TRIENNIAL BUDGET states, as follows: "The 'Capitals' budget as submitted is almost completely funded by grant revenues." It is imprudent city policy to base a “Capitals” budget on grant revenues.

• BUDGET RECOMMENDATIONS from the LABOR MANAGEMENT COMMITTEE, specifically, the limiting of capital projects to “projects that are required to be completed, have grant funding, and/or are needed to maintain the health and welfare of the community," is short-sighted and unwise. Additionally, projects cited, such as the Forest Theatre, restrooms at Scenic Road and Santa Lucia Avenue, should not be deferred to a more stable economic time considering these items should have been funded and realized years and years ago.

• As one of the highest per capita spending cities in the State of California, the City does not need to focus on “Revenue Generation,” including, as follows:
1. Implement a phased paid parking program (short & long term).
2. Propose a Public Safety Assessment Property tax (long term).
3. Raise parking ticket fees (short term).
4. Consolidate the City elections with the general elections (long term).
5. Renegotiate contract with National Parking at Sunset Center (short term).
6. Evaluate and sell surplus equipment (short term).
7. Increase fees for special events (short term).
8. Establish a City-wide endowment fund (long term).
9. Re-institute the Banner Fee on a temporary basis (short term)
10. Evaluate the creation of City Sponsored events (long term).

Rather, the City needs to control expenditures by limiting exposure to serious and meritorious lawsuits against the City, including Miller, Jane Kingsley v. City of Carmel-by-the-Sea, et al (M99513), Flanders Foundation v. City of Carmel-by-the-Sea, et al. (M76728 and M99437) and Mandurrago, John, et al. v. City of Carmel-by-the-Sea, et al. (M97273 and M102802).

• With a past City record of annual surpluses, an estimated total Reserve Fund Balance of $9,777,353 (as of 7/01/2010) and increasing reverse fund balances with each successive year, it is doubtful the City will expend the requisite budget amounts.

• Of a total of 67 Full-Time City Employees, the budget does not include expenditures for the hiring of directors for two critical positions, namely Community Planning & Building Director and Public Works Director.

• For FY 2010/2011, of the $1,045,946 total budget for Public Works, only $300,000 is budgeted for maintenance of streets, i.e., repave Junipero between Ocean Av. & 8th Avenue, when a study completed by Nichols Consulting Engineers concluded $660,000 must be expended annually for status quo (as of 2007) maintenance of streets.

• For FY 2010/2011, of the $469,402 total budget for Legal, $335,000 is budgeted for “Professional Services” (non-salary); and $320,000 (FY 2011/2012) and $320,000 (FY 2012/2013). The total budgeted expenditures for all three fiscal years underestimates actual amounts due to probable attorney fees associated with Flanders II, potential attorney fees and court costs associated with the appeal of Mandurrago I and Mandurrago II and potential attorney fees, court costs and judgment costs associated with Jane Miller’s sexual harassment, employment discrimination and retaliation lawsuit against the City.

• For FY 2010/2011, 2011/2012 and 2012/2013, the total budgets for Fire, $2,033,185 $2,120,595 $2,232,447, respectively, are underestimates by hundreds of thousands of dollars for actual costs given the known costs of a stand-alone department, merger with the City of Monterey or contract with Cal-Fire.

• For FY 2010/2011, the total budget of $347,675 for Marketing and Economic Revitalization, including costs associated with Burghart + Dore Regional Destination Marketing, MCCVB Contract and Carmel Chamber of Commerce, is not commensurate with the expenditures for visitor amenities, such as adequate restroom facilities along Scenic Road at Carmel Beach.

ADDENDUM:
CITY OF CARMEL-BY-THE-SEA
CALIFORNIA
DRAFT BUDGET
FISCAL YEARS
2010/11 THROUGH 2012/13
MEMBERS OF THE CITY COUNCIL
SUE MCCLOUD, MAYOR
JASON BURNETT
PAULA HAZDOVAC
KAREN SHARP
KEN TALMAGE

Two Noteworthy 4 May 2010 City Council Agenda Items

ABSTRACT: Two noteworthy 4 May 2010 City Council Agenda Items, namely Receive presentation on the Carmel Beach canine education and enforcement program and an Ordinance amending the Mills Act program found in the Historic Preservation Ordinance and, are presented. Selected excerpts from the Agenda Item Summary and Staff Report are presented, as well as information submitted by historic residential property owner David D. Hutchings, including Hutchings’ Executive Summary.

AGENDA PACKET
Regular Meeting
Tuesday, May 4, 2010
4:30 p.m., Open Session
City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

Live and archived video streaming available

V. Announcements from Closed Session, from City Council Members and the City Administrator

D. Announcements from City Administrator
1. Receive presentation on the Carmel Beach canine education and enforcement program.

IX. Ordinances
A. Consideration of an Ordinance amending the Mills Act program found in the Historic Preservation Ordinance (First reading).

Description: This proposal would amend the application requirements of the Mills Act to eliminate some of the existing standards, place an emphasis on rehabilitation, and allow properties in any zoning district to apply.

Staff Recommendation: Approve the Ordinance (1st Reading).

Important Considerations: The Mills Act was enacted by the State of California in 1972 as a way to encourage partnerships between local governments and property owners of historic resources. Local governments are not required to participate in the Mills Act.

For those governments that do participate, a Mills Act contract may be offered to any property that contains an historic resource. The contract must be for at least 10 years and the property owner typically agrees to specific rehabilitation/restoration efforts. In turn, the property owner receives a reduced property tax assessment. The jurisdiction benefits by having historic resources maintained and enhanced; the property owner benefits by having a reduced tax burden.

Decision Record: The Council continued this item on 6 April 2010 with a request for additional financial analysis on the program.

STAFF REPORT
Exhibit “A” (attached) includes proposed changes to the existing ordinance to: 1) place an emphasis on rehabilitation; 2) revise the required findings; 3) open the program to commercial properties; and 4) allow the Council to establish by Resolution a limit on the number of contracts that could be approved.

Residential: There are approximately 210 residential properties listed on the City’s Historic Inventory. Properties that could potentially qualify for a Mills Act contract would be limited by the following considerations:

• Additions: The City’s ordinance does not allow contracts for properties with increased floor area by 15% or more from the original historic size. Without an analysis of every property on the inventory, it is impossible to know how many properties this requirement may disqualify. Staff estimates somewhere between 30% to 40%.

• Proposition 13: California’s Proposition 13 limits the maximum amount of
property taxes that can be assessed and prohibits reassessing a property’s value unless there is a change of ownership or new construction. Therefore, many owners of historic properties already enjoy low property tax rates and would not benefit by a Mills Act contract.

• Rehabilitation: If the Council adopts the proposed amendments, the number of potential candidates for Mills Act contracts will be further reduced based on the emphasis on rehabilitation.

Commercial: There are approximately 50 commercial properties listed on the City’s Historic Inventory. The City’s current Mills Act program does not include commercial properties, unless they provide affordable housing. The Council has expressed an interest in extending the program, particularly for historic motels.

The following motels are currently listed on the City’s Historic Inventory:
• Pine Inn (CC District)
• Cypress Inn (RC District)
• L’Auberge (RC District)
• Normandy Inn (RC District)
• La Playa (R-4 District)
• Sea View Inn (R-1 District)
• Colonial Terrace (R-1 District)
• Edgemere (R-1 District)

In general, Mills Act assessments are based on the Income Approach to Value rather than the standard Market Approach to Value. A key factor to this approach is what a property can produce in rent. Since rental rates are generally higher per square foot for commercial property, and particularly for motels, compared to residential property, commercial properties are generally not likely to see as significant property tax reductions from the Mills Act as would residential properties. Property tax reductions, however, could still be significant.

Economic Impact: Staff has assumed that the average market value of properties receiving a contract would be $1.5 million dollars. This would result in a net loss to the City of approximately $1,020 per contract (see Exhibit “B”). Staff also assumed that each 10-year contract would be renewed for an additional 10 years, as provided for in the Mills Act. Based on these assumptions, the following table demonstrates what the City could potentially lose in tax revenue (not including inflation) if two contracts were approved each year.

Yr 1 Yr 2 Yr 3 Yr 4 Yr 5 Yr 6 Yr 7 Yr 8 Yr 9 Yr 10
$2040 $4080 $6120 $8160 $10,200 $12,240 $14280 $16,320 $18,360 $20,400

Yr 11 Yr 12 Yr 13 Yr 14 Yr 15 Yr 16 Yr 17 Yr 18 Yr 19 Yr 20
$22,440 $24,480 $26,520 $28,560 $30,600 $32,640 $34,680 $36720 $38760 $40,800

By Year 10 the City could experience a $20,400 reduction in property tax revenue in that year and have lost approximately $112,200 over a 10-year span. Staff points out, however, that based on the budget for fiscal year 2009/10, $20,400 would only be approximately .1% of the total budget.

Problematic Criteria: CMC 17.32.100 establishes findings that must be made in order to approve a Mills Act contract. Several of these findings make qualifying for a contract very difficult.

Summary: In summary, the Council should answer the following questions:

1) Should Mills Act contracts be offered primarily to properties with significant rehabilitation needs or should they be offered to all historic properties regardless of their current condition?

2) Should the existing problematic findings be amended as recommended?

3) Should the ordinance be amended to include historic commercial properties in the program?

4) Should the ordinance establish a cap on the number of contracts that can be approved during any given year? If a cap is established, should it exclude motels applications?

RECOMMENDATION
Approve the Ordinance amending the Mills Act requirements on first reading.

Exhibit “D”
Submitted by Historic Residential Property Owner David Hutchings
Note: Bold Print highlighted by Hutchings

California Government Code, Article 12, Sections 50280 – 50290

50281. Required contract provision.
Any contract entered into under this article shall contain the following provisions:

(b) Where applicable, the contract shall provide the following:

(1) For the preservation of the qualified historical property and, when necessary, to restore and rehabilitate the property to conform to the rules and regulations of the Office of Historic Preservation of the Department of Parks and Recreation, the United States Secretary of the Interior's Standards for Rehabilitation, a nd the State Historical Building Code.

GUIDELINES FOR THE ASSESSMENT OF
ENFORCEABLY RESTRICTED HISTORICAL PROPERTY

HISTORY
Effective March 7, 1973, Chapter 1442 of the Statutes of 1972 (also known as the Mills Act) added sections 50280 through 50289 to the Government Code to allow an owner of qualified historical property to enter into a preservation contract with local government. When property is placed under such a contract, the owner agrees to restore the property if necessary, maintain its historic character, and use it in a manner compatible with its historic characteristics.

ENFORCEABLY RESTRICTED HISTORICAL PROPERTY
Under section 439, historical property is "enforceably restricted" if it meets the definition of a "qualified historical property" as defined in Government Code section 50280.1 and is subject to a historical property contract executed pursuant to Government Code section 50280 and following. A qualified historical property includes qualified historical improvements and the land on which the improvements are situated, as specified in the historical property contract. If the contract does not specify the land to be included, the qualified historical property includes only a land area of reasonable size to situate the improvements.

The historical property contract must have a minimum term of ten years, and, as applicable, must contain certain other elements, including the following:
• A provision relating to the preservation of the qualified historical property and, when necessary, the restoration and rehabilitation of the property in conformance with state historic preservation guidelines;

SUMMARY
The key points contained in these guidelines can be summarized as follows:
1. An owner of qualified historical property may enter into a preservation contract with local government. When property is placed under such a contract, the owner agrees to restore the property if necessary, maintain its historic character, and use it in a manner compatible with its historic characteristics. Such property receives the special valuation treatment prescribed under Revenue and Taxation Code sections 439 through 439.4.

Mills Act Property Tax Abatement Program
Technical Assistance Bulletin #12
CALIFORNIA OFFICE OF HISTORIC PRESERVATION
Department of Parks & Recreation

Benefits to Owners
Owners of historic buildings may qualify for property tax relief if they pledge to rehabilitate and maintain the historical and architectural character of their properties for at least a ten-year period. The Mills Act program is especially beneficial for recent buyers of historic properties and for current owners of historic buildings who have made major improvements to their properties.

Executive Summary
Supplement to Documents Previously Provided By David D. Hutchings
For April 6, 2010 Carmel City Council Meeting Pertaining to the Mills Act

Disagreement with Proposed Exhibit A

My disagreement with Exhibit A centers around the language stated as the “Primary Purpose” for offering the Mills Act”. It is my belief that the current proposed language is not in compliance with the California Code, the California Guidelines, and the Ca. OHP Tech. Bulletin #12.

Staff recommends that Exhibit A should read:

“The primary purpose for offering Mills Act contracts in the City of Carmel-by-the-Sea is to assist in the rehabilitation and long term-maintenance of historic resources”.

It is my belief that Exhibit A to be in compliance should read:

“The primary purpose for offering Mills Act contracts in the City of Carmel-by-the- Sea is to assist in the rehabilitation and / or long term maintenance of historic resources”.

Point / Authorities and Brief Discussion for My Belief:

1. Ca. Code 50281(b) (1) clearly states “For the preservation of the qualified historic property and when necessary to restore and rehabilitate the property”. Mandating rehabilitation rewrites the “when necessary” provision of the law. The Code only mandates long-term preservation / maintenance, not rehabilitation.

2. Ca. Guidelines state “When property is placed under such a contract, the owner agrees to restore the property if necessary, maintain its historic character, and use it in a manner compatible with its historic characteristics”. Ca. Guidelines requires restoration only if necessary, but mandates maintenance of the historic character of the property.

3. The Ca. OHP Mills Act Property Tax Abatement Program Technical Assistance Bulletin #12 states “The Mills Act program is especially beneficial for recent buyers of historic properties and for current owners of historic buildings who have made major improvements to their properties”. The Ca. OHP Bulletin #12 does not say “who will make major improvements to their properties but rather says who have made major improvements to their properties.

4. The City of Monterey (the nearest major city) in their criteria clearly state that “The Mills Act Contract will serve to offset the costs of rehabilitation and/or maintaining the cultural resource”.

City’s Discretion to Determine Approved Mills Act Contracts Would Not Change

Because approval of the Mills Act by the City is discretionary, the City’s discretion to determine which properties are approved if my proposed language was implemented would not change. The City could still only approve Mills Act contracts for historic properties requiring just
rehabilitation but would not exclude for consideration historic properties already fully restored requiring long term-maintenance to preserve historic character.

ADDENDUM:
Mills Act Property Tax Abatement Program
Technical Assistance Bulletin #12
CALIFORNIA OFFICE OF HISTORIC PRESERVATION
Department of Parks & Recreation
1416 9th Street Room 1442-7
Sacramento, CA 95814
PO Box 942896
Sacramento, CA 94296
916-653-6624
calshpo@ohp.parks.ca.gov
www.ohp.parks.ca.gov

California’s four largest cities (Los Angeles, San Diego, San Francisco, and San Jose) as well as more than 75 other city and county governments have instituted Mills Act programs.

Mills Act Contact List

Mills Act Staff Contact
Shannon Lauchner
Mills Act/CLG Coordinator
State Historian II
916-653-5649
slauchner@parks.ca.gov

Commentary: Two heroes named Jane Miller and Stephanie Pearce

THE DEEDS revealed and alleged in on-leave Human Resources Manager Jane Miller’s letter to the Mayor and City Council, dated October 23, 2008, and legal complaint filed June 17, 2009 and Miller, Jane Kingsley v. City of Carmel-by-the-Sea, et al. (M99513) court file are enough to make every Carmelite ashamed of the conduct of City Administrator Rich Guillen, Mayor Sue McCloud and Council Members Paula Hazdovac, Gerard Rose, Ken Talmage and Karen Sharp.

It’s horrible to contemplate what Jane Miller endured for years and years at City Hall. She “watched City Administrator Richard Guillen make professional decisions based upon favoritism, gender, age and inappropriate relationships. Guillen is a manipulative boss who needs attention from and cultivates relationships with women at work into something which can turn them into “work spouses.” When those women respond to his behavior, Guillen rewards them financially and professionally. On the other hand, Guillen gets rid of women employees if they don’t respond to his needs.” In April 2008, City Administrator Rich Guillen told her that he wanted to eliminate her position of Human Resources Manager, although he had no legitimate justifiable budgetary or organizational reason. “In a very poisonous way, Guillen combined work and his version of sexual attraction – frequently calling himself “the boss” as he referred to me as a “hottie” or his “blond worker bee.”” Additionally, “Guillen has made bad decisions regarding salaries and work responsibility based on favoritism that has not only created a discriminatory working environment but also has drained away City funds. The unprecedented raises, benefits and higher “Job Titles” he gave to Christie Miller (between 2003 and 2008, Guillen increased Christie Miller’s salary by about 83%) and Heidi Burch (between 2005 and 2008 Guillen increased Heidi Burch’s salary by about 70%) were decisions that were not supported in the budget or by their qualifications.”

As discouraging as the deeds themselves is the knowledge that City Administrator Rich Guillen has seemingly gotten away with it. He was never placed on administrative leave or terminated and remains city administrator. Moreover, the Mayor and City Council failed to respond to Jane Miller’s letter even in the face of Jane Miller’s plea of “what you cannot do is ignore the conditions that allowed Guillen to do what he has been doing. My career, my health, and the City’s well-being are at stake” and failed to expeditiously conduct a full, objective and independent investigation of her complaints. And so the Mayor and City Council have also seemingly gotten away with it as they have not been held accountable for their unethical, uncaring and incompetent conduct.

The fear that motivated Jane Miller to keep silent over the years, unfortunately, was not unfounded. While she now believes it was “a mistake” to not challenge Guillen “for his inappropriate actions,” her fear appears in retrospect to be well founded given the circle the wagons mentality of the Mayor and City Council and the dismissive “it’s nothing” attitude of Mayor Sue McCloud regarding Jane Miller’s complaint.

So for Jane Miller, her years of silence are understandable. Even now, she surely did not want to file a lawsuit against the City of Carmel-by-the-Sea and revisit what happened to her at City Hall in a forthcoming jury trial on September 20, 2010.

And for former city employee Stephanie Pearce, her recent letters to the editor about Carmel lacking “integrity” describe a city government which is “badly broken.” She recounted “hostile punitive actions” carried out by City Administrator Rich Guillen against long time dedicated city employees (and approved by Mayor Sue McCloud), “personal vendettas” against individual employees and a mayor working “hand in glove” with the city administrator “whose inappropriate and unprofessional relationships have created a city workplace imbued with an atmosphere of stress, hostility and fear.” Moreover, Stephanie Pearce wrote that “the open scandal that has pervaded city hall and demoralized city staff is not just “negativity” that must be kept confidential pending legal resolution. It is an egregious betrayal of the public trust to allow creation and continuance of a hostile workplace environment, showing profound lack of respect for city workers.”

And so for Stephanie Pearce, there was plenty of motivation to let the whole thing stay in the past.

Yet there they were, Jane Miller and Stephanie Pearce, one filing a public lawsuit and the other writing letters to the editor, informing the public of Carmel’s lack of integrity.

For this, Jane Miller and Stephanie Pearce deserve the community’s deepest thanks. They are risking a lot, and they are doing it for everyone else’s honor and integrity.