On 2019: Lininger v. Pfleger et al., Sunset Cultural Center, Inc. (SCC) $17,700.00 Cal/OSHA Penalty, & Harary “Nameless Bafoon (sic)" Fiasco

"...2019 was a fantastic year in the Village,..." 

CR

To paraphrase Kimberly A. Strassel (2019’s Adult of the Year, WSJ, Friday, January 3, 2020), it is the rare official who does not circle the wagons, also “the rare person willing to subject his institution to scrutiny for its own good-and that of the country” (city).

‘Incompatible Public Offices:’ Police Chief & City Administrator

ABSTRACT: Yesterday, the City Council voted unanimously to adopt a Resolution authorizing the Mayor to execute an employment agreement between the City of Carmel-by-the-Sea and Mike Calhoun, Public Safety Director, Chief of Police, and Interim City Administrator, as part of the Consent Calendar.   However, according to Attorney General Opinion Office of the Attorney General, State of California, Opinion No. 98-707 (September 30, 1998), the positions of police chief and city manager/city administrator are incompatible. To wit, “the city manager, if allowed to serve simultaneously as chief of police, would be authorized to control, order and give directions to himself, appoint and remove himself, prepare and submit his own budget to the city council, conduct investigations into the affairs of his own office, and investigate complaints in relation to matters concerning the administration of his own department. As noted at the outset, offices are incompatible "where one is subordinate to the other and subject in some degree to the supervisory power of its incumbent." (People ex rel. Deputy Sheriffs' Assn. v. County of Santa Clara (1996) 49 Cal.App.4th 1471, 1481; 80 Ops.Cal.Atty.Gen., supra, at 75.)” Therefore, “Acceptance of the city manager office automatically causes the police chief office to be vacated," according to Richard M. Kreisler, L.A. County Police Chief Update, October 01, 1998. And importantly, “It is this office's opinion that the Attorney General would be likely to find that holding an acting city manager position is likewise incompatible with maintaining your permanent appointment as chief of police. Given that the apparent purpose or intent of the “incompatible public office” doctrine is to prevent a person from simultaneously holding two public offices where the performance of the duties of either office could have an adverse effect on the other, it is arguably of little import that your exercise of duties as a city manager is occurring while you are temporarily the city manager. In such case, the city manager can still impact the operations of the two public offices inasmuch as an acting city manager is typically invested with all of the powers, duties and obligations of the office of the city manager, and is therefore called upon to in essence supervise the chief of police.”  Moreover, according to Robert Wechsler, Director of Research for City Ethics, "The California statute has an interesting penalty provision. The public officer is "deemed to have forfeited the first office upon acceding to the second." Thus, a mayor who successfully runs for or accepts an incompatible office is no longer mayor. If the mayor won't budge, this penalty may be enforced in an action by the AG, or by a private party with the AG's consent."

Opinion 98-707

Attorney General Opinion Office of the Attorney General, State of California, Opinion No. 98-707 (September 30, 1998)

REFERENCES:

OPINION :: No. 98-707 of : September 30, 1998 DANIEL E. LUNGREN :Attorney General : :ANTHONY S. Da VIGO : Deputy Attorney General

CONCLUSION The positions of police chief and city manager of the City of San Jacinto are incompatible public offices

State Attorney General Offers Opinion That the Chief of Police of a General Law City May Not Serve Simultaneously as City Manager - Acceptance of the City Manager Office Automatically Vacates the Police Chief Office
By: Richard M. Kreisler L.A. County Police Chief Update, October 01, 1998
LIEBERT CASSIDY WHITMORE

Incompatible Offices in Perspective
Monday, March 28th, 2011
Robert Wechsler Cityethics.org

CITY GOVERNMENT: Is Carmel-by-the-Sea a ‘Well Managed,’ ‘Open and Transparent’ City Government? (Part III)

ABSTRACT:  Is Carmel-by-the-Sea a "Well Managed," "Open and Transparent" City Government?  E-Mail #1 from Paterson to Heather R. Coffman, Liebert Cassidy Whitmore is presented.   

E-Mail #1 from Paterson to Heather R. Coffman, Liebert Cassidy Whitmore

Sent: Wed 4/3/2013

From: Paterson [SebViz2@sbcglobal.net]

To: 'Heather R. Coffman'

Cc: 'sebviz2@sbcglobal.net'

Subject: RE: Response from City of Carmel-By-The-Sea to Request dated March 22, 2013

Heather R. Coffman, Associate, Liebert Cassidy Whitmore:

Thank you for your response dated April 1, 2013.  However, in my e-mail to City Clerk Heidi Burch on March, 22, 2013 I requested “and any and all other materials related to the City’s fiduciary obligation to citizens to account for taxpayer money expenditures.”  Accordingly, “any and all other materials” means documents related to Expense Accounts 01 61051 0002, 01 61051 0040 and 01 61051.  Specifically, email me e-copies of documents pertaining to Expense Account Titles and Descriptions for Expense Accounts 01 61051 0002, 01 61051 0040 and 01 61051.

Thank you for your prompt attention to this matter.

Ms. Paterson

ICMA: ‘Leaders at the Core of Better Communities’ on Selecting a Local Government Administrator

ABSTRACT: International City/County Management Association (ICMA), a 501(c)(3) nonprofit organization, was founded in 1914. ICMA is the “premier local government leadership and management organization. Its mission is to create excellence in local governance by advocating and developing the professional management of local government worldwide.”

Links to Articles, namely Professional Local Government Management
and Recruitment Guidelines for Selecting a Local Government Administrator (Recruitment Guidelines Handbook), are provided. Among the most significant content, as follows: “Recruiting and selecting a local government administrator is one of the most important responsibilities of a local governing body. It requires careful planning, astute evaluation of candidates, and a clear understanding of the relationship between the local government and the administrator.” And “For the recruitment process to be successful, local government leaders must provide the following:
• Strong, consistent political leadership.
• A well organized and coordinated recruitment process.
• A plan for administering the affairs of the local government while the recruitment process is under way.
• A timetable that ensures prompt, comprehensive recruitment and guards against impulsive and premature action.”

Importantly, valuable sections include Appoint an interim administrator and Summary Checklist and Timetable. Lastly, as stated in the Conclusion, “If recruitment of a local government administrator is conducted according to the guidelines outlined in this document, the chances of developing a positive and beneficial long-term relationship among the council, the administrator, and the community are greatly enhanced.”

REFERENCES:
Professional Local Government Management
Today’s elected local government officials can better fulfill their legislative or policy-making roles by delegating the day-to-day management of the municipality to an appointed professional administrator.

Recruitment Guidelines For Selecting a Local Government Administrator, International City/County Management Association (ICMA), February 2001 (28 pages)

ADDENDUM:
Ethics
At the very core of ICMA is the mission to promote an ethical culture in local government. Since the development of the ICMA Code of Ethics in 1924, the organization has built an extensive collection of advice on ethics issues, case studies and model local government documents. This knowledge base has been translated into training courses, consulting services and ethics textbooks and other educational publications designed to further the organization’s mission throughout the world.

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.

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.

‘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).

COMMENTARY: Termination & Resignations Necessary to Uphold Integrity of Public Trust Offices

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

“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).”

Given the severity of the credible allegations of Human Resources Manager Jane Kingsley Miller regarding the intolerable and unacceptable workplace environment at City Hall created by City Administrator Rich Guillen and Mayor Sue McCloud, it is imperative that the following actions occur immediately:

• A Special City Council Meeting is convened for the purpose of voting to terminate Rich Guillen from employment as city administrator of the City of Carmel-by-the-Sea.

• Mayor Sue McCloud and City Council Members Paula Hazdovac, Gerard Rose, Karen Sharp and Ken Talmage tender their resignations as city council members of the City of Carmel-by-the-Sea.

For arguably at least the last two years, Mayor Sue McCloud and City Council Members Paula Hazdovac, Gerard Rose, Karen Sharp and Ken Talmage knew, or should have known, about the workplace environment at City Hall. Their actions, including but not limited to, voting to approve an increase in Rich Guillen’s salary and benefits during this period, and inactions, including but not limited to, failing to investigate Jane Miller’s serious complaints, represent an irreparable breach of public trust and “an injustice for all.”

Moreover, since 2000, with the election of Sue McCloud as mayor of the City of Carmel-by-the-Sea and her selection of Rich Guillen as city administrator, our city government has been a government of, by, and for Sue McCloud. Now, it is time for Camelites to restore our city government to a government of the people, by the people, for the people of the City of Carmel-by-the-Sea by demanding the termination from city employment of Rich Guillen as city administrator and the resignations of Mayor Sue McCloud and City Council Members Paula Hazdovac, Gerard Rose, Karen Sharp and Ken Talmage because elected officials and city employees are answerable and accountable to the people from whom all legitimate power emanates and for whom government exists. Otherwise, the constitutional principle that public office and public service is a public trust is nonexistence.

ETHICS...No Confidence in Government Without ETHICAL CONDUCT

While the City of Carmel-by-the-Sea has a “Code of Ethics” for “Administration and Personnel,” the City apparently does not have a “Code of Ethics” for the City Council, Boards and Commissions.

The City’s “Code of Ethics” for Administration and Personnel, as follows:

Carmel-by-the-Sea
Municipal Code
Title 2
ADMINISTRATION AND PERSONNEL

Chapter 2.52
PERSONNEL SYSTEM*
Sections:
Article I. Code of Ethics
2.52.010 Code of Ethics.

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).


Since a search of the City of Carmel-by-the-Sea’s web site (http://www.carmelcalifornia.com/) and the Institute for Local Government’s web site (http://www.cacities.org/index.jsp?displaytype=§ion=about&zone=ilsg) did not yield a City of Carmel-by-the-Sea “Code of Ethics” for City Council, Board and Commissions, the City of Calistoga’s “Code of Ethics” is reprinted, as follows:

CODE OF ETHICS
for members of Calistoga City Council, Boards and Commissions

Preamble
The citizens and businesses of Calistoga are entitled to have fair, ethical and accountable local government which has earned the public's full confidence for integrity. In keeping with the City of Calistoga Commitment to Excellence, the effective functioning of democratic government therefore requires that:

• public officials, both elected and appointed, comply with both the letter and spirit of the laws and policies affecting the operations of government;

• public officials be independent, impartial and fair in their judgment and actions;

• public office be used for the public good, not for personal gain; and

• public deliberations and processes be conducted openly, unless legally confidential, in an atmosphere of respect and civility.

To this end, the Calistoga City Council has adopted a Code of Ethics for members1 of the City Council and of the City's boards and commissions to assure public confidence in the integrity of local government and its effective and fair operation.

1 For ease of reference in the Code of Ethics, the term "member" refers to any member of the Calistoga City Council or any of the City's boards and commissions established by the City Council.

City of Calistoga Code of Ethics

1. Act in the Public Interest

Recognizing that stewardship of the public interest must be their primary concern, members will work for the common good of the people of Calistoga and not for any private or personal interest, and they will assure fair and equal treatment of all persons, claims and transactions coming before the Calistoga City Council, boards and commissions.

2. Comply with the Law

Members shall comply with the laws of the nation, the State of California and the City of Calistoga in the performance of their public duties. These laws include, but are not limited to: the United States and California constitutions; the Calistoga Municipal Code; laws pertaining to conflicts of interest, election campaigns, financial disclosures, employer responsibilities, and open processes of government; and City ordinances and policies.

3. Conduct of Members

The professional and personal conduct of members must be above reproach and avoid even the appearance of impropriety. Members shall refrain from abusive conduct, personal charges or verbal attacks upon the character or motives of other members of Council, boards and commissions, the staff or public.

4. Respect for Process

Members shall perform their duties in accordance with the processes and rules of order established by the City Council and board and commissions governing the deliberation of public policy issues, meaningful involvement of the public, and implementation of policy decisions of the City Council by City staff.

5. Conduct of Public Meetings

Members shall prepare themselves for public issues; listen courteously and attentively to all public discussions before the body; and focus on the business at hand. They shall refrain from interrupting other speakers; making personal comments not germane to the business of the body; or otherwise interfering with the orderly conduct of meetings.

6. Decisions Based on Merit

Members shall base their decisions on the merits and substance of the matter at hand, rather than on unrelated considerations.

7. Communication

Members shall publicly share substantive information that is relevant to a matter under consideration by the Council or boards and commissions, which they may have received from sources outside of the public decisionmaking process.

8. Conflict of Interest

In order to assure their independence and impartiality on behalf of the common good, members shall not use their official positions to influence government decisions in which they have a material financial interest, or where they have an organizational responsibility or personal relationship which may give the appearance of a conflict of interest.

In accordance with the law, members shall disclose investments, interests in real property, sources of income, and gifts; and they shall abstain from participating in deliberations and decision-making where conflicts may exist.

9. Gifts and Favors

Members shall not take any special advantage of services or opportunities for personal gain, by virtue of their public office, that are not available to the public in general. They shall refrain from accepting any gifts, favors or promises of future benefits which might compromise their independence of judgment or action or give the appearance of being compromised.

10. Confidential Information

Members shall respect the confidentiality of information concerning the property, personnel or affairs of the City. They shall neither disclose confidential information without proper legal authorization, nor use such information to advance their personal, financial or other private interests.

11. Use of Public Resources

Members shall not use public resources not available to the public in general, such as City staff time, equipment, supplies or facilities, for private gain or personal purposes.

12. Representation of Private Interests

In keeping with their role as stewards of the public interest, members of Council shall not appear on behalf of the private interests of third parties before the Council or any board, commission or proceeding of the City, nor shall members of boards and commissions appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of service of their bodies.

13. Advocacy

Members shall represent the official policies or positions of the City Council, board or commission to the best of their ability when designated as delegates for this purpose. When presenting their individual opinions and positions, members shall explicitly state they do not represent their body or the City of Calistoga, nor will they allow the inference that they do.

14. Policy Role of Members

Members shall respect and adhere to the council-manager structure of Calistoga city government as outlined by the Calistoga Municipal Code. In this structure, the City Council determines the policies of the City with the advice, information and analysis provided by the public, boards and commissions, and City staff.

Members therefore shall not interfere with the administrative functions of the City or the professional duties of City staff; nor shall they impair the ability of staff to implement Council policy decisions.

15. Independence of Boards and Commissions

Because of the value of the independent advice of boards and commissions to the public decision-making process, members of Council shall refrain from using their position to unduly influence the deliberations or outcomes of board and commission proceedings.

16. Positive Work Place Environment

Members shall support the maintenance of a positive and constructive work place environment for City employees and for citizens and businesses dealing with the City. Members shall recognize their special role in dealings with City employees to in no way create the perception of inappropriate direction to staff.

17. Implementation

As an expression of the standards of conduct for members expected by the City, the Calistoga Code of Ethics is intended to be self-enforcing. It therefore becomes most effective when members are thoroughly familiar with it and embrace its provisions.

For this reason, ethical standards shall be included in the regular orientations for candidates for City Council, applicants to board and commissions, and newly elected and appointed officials. Members entering office shall sign a statement affirming they read and understood the City of Calistoga code of ethics. In addition, the Code of Ethics shall be annually reviewed by the City Council, boards and commissions, and the City Council shall consider recommendations from boards and commissions and update it as necessary.

18. Compliance and Enforcement

The Calistoga Code of Ethics expresses standards of ethical conduct expected for members of the Calistoga City Council, boards and commissions. Members themselves have the primary responsibility to assure that ethical standards are understood and met, and that the public can continue to have full confidence in the integrity of government.

The chairs of boards and commissions and the Mayor have the additional
responsibility to intervene when actions of members that appear to be in violation of the Code of Ethics are brought to their attention.

The City Council may impose sanctions on members whose conduct does not comply with the City's ethical standards, such as reprimand, formal censure, loss of seniority or committee assignment, or budget restriction. The City Council also may remove members of boards and commissions from office.

A violation of this code of ethics shall not be considered a basis for challenging the validity of a Council, board or commission decision.

(Sources: http://www.cacities.org/index.jspdisplaytype=§ion=conf&zone=ilsg&sub_sec=conf_codes; http://www.cacities.org/resource_files/22034.Calistoga%20CODE%20OF%20ETHICS.pdf)

In the context of the city of Carmel-by-the-Sea,…

A mayor who “rules” by personal fiat, not allegiance to the City’s Municipal Code, General Plan, Local Coastal Program, etc...

A city administrator who plagiarizes and misleads the public...

A city attorney who authorizes the submission of an inaccurate and fraudulent response letter to the Monterey County Grand Jury...

Carmelites cannot, nor should not, tolerate a city government with such a “dearth of ethical conduct” record!