COMMENTARY: One Million Dollars Shortfall Shibboleth

• In a slow economic recovery post-recession, the last action local government should advocate is taking money from the productive, wealth-creating private sector and appropriating it to government. With the number of “for lease” empty business spaces in the commercial district, our city government does not provide an incentive to business owners to open a business in Carmel with talk of government increasing taxes and fees on businesses and individuals. Let the economic recovery continue prior to considering any and all increase in tax rates and fees. Note: Even in the current slow economic recovery, the State of California had a recent “mini-boom” in tax revenue in the amount of $11.8 billion in two months, according to the WSJ.

• A consultant’s study of the Police Department should be conducted to determine if the City requires one third of its city employees in the Police Department for the Police Department to fulfill its mission and determine options for cost-saving police services, similar to the study of the Fire Department. Conventional wisdom is that the City cannot afford a stand-alone Fire Department, yet the City has a stand-alone Police Department which costs much more to operate than the Fire Department. In addition, the Public Safety Director position was originally created to avoid the hiring of an independent fire chief which was only later understood to be a violation of the law, not because there was a desire to integrate public safety functions.
Note: Just because the City had one hundred city employees at one time does not mean the city requires one hundred city employees now or at a future date to meet the needs of the city. The policy of eliminating city employees, particularly senior management city employees, was not to decrease costs primarily, rather it was the mayor’s (and council’s) policy decision to centralize power in the city administrator and mayor.

• Carmel-by-the-Sea taxpayers should ask themselves how it is that our city has one of the highest per capita spending levels of any city in the State of California, yet basis public asset stewardship responsibilities have not been accomplished and there are no future plans to address those stewardship responsibilities.

• In the context of the city council voting unanimously to authorize CSAC-EIA to pay $867,876.72 to settle claims of harassment, discrimination and retaliation by a former city employee, not accepting responsibility for City Hall’s decade-long “hostile workplace environment,” not hiring a Human Resources Manager to implement the City Harassment Prevention Policy, wasting thousands of taxpayer dollars on an “over lawyered” and not adopted revised Harassment Prevention Policy, the mayor and interim city administrator not answering basis questions from citizens on city council agenda items, street maintenance issues, regional water project issues, et cetera, city council members deserve a vote of no confidence at this time.

• Once a permanent city administrator is hired, the city council could work towards gaining a vote of confidence in their actions if council members publicly recognize the failure of past city councils’ policy of centralizing power in the city administrator and mayor and provide policy direction to the new city administrator to proceed with searches for a Community Planning & Building Director, Public Works Director, Human Resources Manager and Community & Cultural Director. With knowledgeable, experienced Directors/Managers, citizens would have confidence in the decisions of the city council with regard to the operation of our city government.

Attorney Michael Stamp: ‘This is no way to run a city. As long as the city and The Pine Cone blame the victim, the city will be at risk.’

ABSTRACT: HIGHLIGHTS of attorney Michael Stamp’s letter to the editor, "Don’t blame the victim,” The Carmel Pine Cone, April 22, 2011, in response to the “Editorial: The benefits of suing yourself,” (April 15, 2011), are presented. Significantly, Stamp concluded: “This is no way to run a city. As long as the city and The Pine Cone blame the victim, the city will be at risk.”

HIGHLIGHTS:
• “Your April 15 editorial hits a new low in blaming victims for being victimized. It gets the facts wrong, it gets the law wrong, and it tries to cover up for the mayor.”

• “ First, Guillen is to blame. He voluntarily engaged in a pattern of conduct that cost the city $600,000 because his conduct was not defensible.”

• “And when the human resources director went directly to the mayor and city council and asked for protection, the mayor and council allowed Guillen to control his own investigation. Guillen stonewalled the city and the investigator, denied everything, claimed that he had never sent the scores of harassing emails and hid behind the mayor. Eventually, the taxpayers paid for Guillen’s conduct and the broken promises of the mayor and city council.”

• “This is no way to run a city. As long as the city and The Pine Cone blame the victim, the city will be at risk.”

Source: “Don’t blame the victim,” Michael Stamp, Monterey, Letters to the Editor, The Carmel Pine Cone, April 22, 2011, pg. 22A

Four Noteworthy 1 February 2011 City Council Agenda Items

ABSTRACT: Four Noteworthy 1 February 2011 City Council Agenda Items, namely Receive Mayor’s Annual Report, Present FY 2009-10 Draft Audited Financial Statements by Ralph Marcello, Marcello & Company CPAs, Receive report, provide policy direction on circulating a Request for Proposal (RFP) for the management and operation of the Children’s Experimental Theater, or ratify the direction provided to the City Administrator at the November 2, 2010 City Council meeting to negotiate a lease with Pacific Repertory Theater and Approve amendments to City’s revised Harassment Prevention Policy are presented. Excerpts from Agenda Item Summary and Staff Report are provided; the HARASSMENT PREVENTION POLICY DRAFT NO. 3 is uploaded.

AMENDED AGENDA PACKET
Regular Meeting
Tuesday, February 1, 2011
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.

B. Announcements from City Council members (Council members may ask a question for clarification, make a brief announcement or report on his or her activities).
1. Receive Mayor’s Annual Report

C. Announcements from City Administrator.
1. Present FY 2009-10 Draft Audited Financial Statements by Ralph Marcello, Marcello & Company CPAs.

XI. Orders of Council
A. Receive report, provide policy direction on circulating a Request for Proposal (RFP) for the management and operation of the Children’s Experimental Theater, or ratify the direction provided to the City Administrator at the November 2, 2010 City Council meeting to negotiate a lease with Pacific Repertory Theater.

Description: At its November 2, 2010 meeting, the Council received a staff report and public testimony on the management and operation of the Children’s Experimental Theater (CET). For the past several years the CET has used the indoor theater at the Forest Theater as its performance venue.

Included in the November 2nd agenda packet was a letter and proposal from Pacific Repertory Theater (PacRep) to lease the indoor theater and continue the tradition of the CET through its School of Dramatic Arts (SoDA) Program. PacRep representatives attended this meeting to provide input and answer questions from the Council on its proposal.

Contained in the November 2nd staff report (see attached) was a brief discussion on circulating an RFP for the lease of the indoor theater and also a proposed alternate course of action, to direct staff to negotiate a lease with PacRep. Subsequently, on November 15, 2010, the Forest Theater Guild submitted a proposal to lease and operate the indoor theater. A copy of this proposal is attached. Since this information was unavailable to the Council at its November 2nd meeting, staff requests that the Council review this proposal and provide direction as stated under the recommendation above.

Staff Recommendation: Staff requests that the Council review this proposal and provide direction on whether to circulate a Request for Proposal (RFP) for the management and operation of the Children’s Experimental Theater, or to ratify the direction provided to the City Administrator at the November 2, 2010 City Council meeting to negotiate a lease with Pacific Repertory Theater.

Decision Record: At its November 2, 2010 meeting, Council directed the City Administrator to negotiate a lease with Pacific Repertory Theater for use of the indoor theater.

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

HARASSMENT PREVENTION POLICY DRAFT NO. 3 2011
HARASSMENT PREVENTION POLICY
DRAFT NO. 3

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

AGREEMENT Between CITY OF CARMEL-BY-THE-SEA, A Municipal Corporation And SUNSET CULTURAL CENTER, INC.

ABSTRACT: The AGREEMENT Between CITY OF CARMEL-BY-THE-SEA, A Municipal Corporation And SUNSET CULTURAL CENTER, INC. A California Not-For-Profit Corporation, June 8, 2004, is uploaded. This Agreement is in effect presently; SCC Board of Trustees notified the Mayor and Council members in December 2009 that SCC was exercising its option under the Agreement for a second contract renewal of three years beginning July 1, 2010 and ending June 30, 2013. The current three-year Agreement renewal is the final extension provided in the Agreement. The Agreement does not have a three-year budget commitment like the original Agreement; the FY 2010/2011 City subsidy is $650,000 and FY 2011/12 City subsidy and FY 2012/13 City subsidy will be determined during the City’s budget process, according to Assistant Director Barbara Davison.


City _ SCC Agreement
AGREEMENT Between CITY OF CARMEL-BY-THE-SEA, A Municipal Corporation And SUNSET CULTURAL CENTER, INC. June 8, 2004

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.

City’s Tactic in Flanders Appeal: DELAY

UPDATE: (as of 4 January 2011)
The City failed to file its opening brief by the due date of 27 December 2010. The Court grants appellants a 15-day grace period; the City must file its opening brief by Thursday, 13 January 2011.

Date 12/29/2010
Description Appellant notified re failure to timely file opening brief.
Notes Defendant and Appellant: City of Carmel-by-the-Sea
Attorney: Richard Harray

Description Appeal dismissed for failure to file opening brief.
Due Date 01/13/2011

ABSTRACT: In late March 2010, attorney Richard Harray stated that the City would appeal Judge Kay Kingsley’s decision in Flanders Foundation v. City of Carmel-by-the-Sea, et al. (M99437) to the Sixth District Court of Appeal. Furthermore, it was reported that Harray stated “he doesn’t plan to wait” the full 60 days to file an appeal. However, the City failed to submit proposal or a briefing sequence within the time provided by rule 8.216(a)(1), California Rules of Court and Harray later requested an “extension of time” on 20 October 2010. Accordingly, the Court assigned Defendant and Appellant City of Carmel-by-the-Sea a new date of 27 December 2010 for the filing of appellant’s appendix and opening brief. Information, including selected excerpts, from the California Court of Appeal web site is provided.

CALIFORNIA APPELLATE COURTS
SIXTH DISTRICT COURT OF APPEAL

Docket (Register of Actions)
The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Number H035818

Date: 07/16/2010
Description: Notice of appeal lodged/received.
Notes: City of Carmel-by-the-Sea, et al., filed 07/07/10

Date: 08/20/2010
Notes: Briefing sequence order filed. The parties having failed to submit proposals for a briefing sequence within the time provided by rule 8.216(a)(1), California Rules of Court, the court orders the following: Appellant City of Carmel-by-the-Sea shall file an opening brief within 40 days of filing of the record on appeal. Appellant The Flanders Foundation shall file a combined respondent's and opening brief pursuant to rule 8.216(b) within 30 days of filing of appellant's opening brief. Appellant City of Carmel-by-the-Sea, et al. shall file a combined reply and respondent's brief pursuant to rule 8.216(b) within 30 days after filing of the combined respondent's and opening brief. Appellant The Flanders Foundation may file a reply brief 20 days thereafter.

Date: 10/20/2010
Notes: Stipulation of extension of time filed to:

Future Scheduled Actions
Description: Appellant's appendix and opening brief filed.
Due Date: 12/27/2010

ADDENDUM:
Case Summary
Trial Court Case: M99437
Court of Appeal Case: H035818

Division:
Case Caption: The Flanders Foundation v. City of Carmel-by-the-Sea, et al.
Case Type: CV
Filing Date: 07/07/2010

E-mail Notification 6th Appellate District

City Harassment Prevention Policy (Revised 2010) & Current City Policy No. C93-02 Harassment Prohibited

ABSTRACT: City Harassment Prevention Policies, including City Harassment Prevention Policy (Revised 2010) and Current City Policy No. C93-02 Harassment Prohibited, are uploaded.


Harassment Prevention Policy Revised 2010
City Harassment Prevention Policy (Revised 2010)


City Harassment Policy No
City Harassment Policy No. C93-02

COMPARISON: Current City Policy No. C93-02 Harassment Prohibited vs. City Harassment Prevention Policy (Revised 2010)

ABSTRACT & ANALYSIS: A comparison of the current City Harassment Policy and the Harassment Prevention Policy (Revised 2010), prepared by attorney Jon R. Giffen, Kennedy, Archer & Harray, is presented section by section. Basically, there are not any substantative changes, except “Mayor” in substituted for “Personnel Committee.” There is an expanded definition of harassment, including “the City has a zero-tolerance policy toward even a single instance of any such conduct which by itself or when repeated would constitute harassment” and an expanded definition of retaliation. It appears there is expanded focus on the Human Resources Personnel Officer if “implicated in any way in the allegations of harassment" without commensurate expanded focus on the City Administrator if implicated in any way in allegations of harassment. For example, the only instance in the eleven page Harassment Prevention Policy (2010) of “if the alleged harasser is the City Administrator,” is “If the alleged harasser is the City Administrator: the report must be given to the Mayor. The Mayor must review the findings and make recommendations accordingly to the entire City Council.” Needless to say, the Revised Policy, or more precisely, the contract with Kennedy, Archer & Harray, does not address the Mayor's and City Council's multiple failures to follow procedures delineated in the current policy as it pertains to the Jane Miller case; that is, failure to respond to Jane Miller’s attorney’s letter of May 2008, illegal act of giving aforementioned letter to the alleged offender, failure to respond to Jane Miller’s letter of October 2008, failure to ensure the private investigator interviewed the four former city employees who had similar claims against the City, et cetera. Moreover, the Mayor and City Council have not publicly addressed why the City settled Jane Miller’s sexual harassment, employment discrimination and retaliation lawsuit for $600,000 and Rich Guillen still remains City Administrator.

Current City Policy No. C93-02 Harassment Prohibited
PURPOSE
The policy of the city of Carmel-by-the-Sea is that harassment in any form in the workplace is unacceptable and will not be condoned or tolerated. The purposes of this Policy are to provide working conditions free of any form of harassment; to establish a procedure by which individuals who feel they have been harassed in any manner can bring their complaint(s) to an appropriate authority without fear of retaliation; to establish a procedure by which complaints of harassment are promptly, thoroughly and fairly investigated; and to insure that individuals who are found to have violated this policy will be subjected to disciplinary action that is commensurate with the severity of the offense.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
PURPOSE
The policy of the City of Carmel-by-the-Sea is that harassment in any form in the workplace is unacceptable and will not be condoned or tolerated. The purpose of this policy is to provide working conditions free of any form of harassment; to establish a procedure by which individuals who feel they have been harassed in any manner can bring their complaint(s) to an appropriate authority without fear of retaliation; to establish a procedure by which complaints of harassment are promptly, thoroughly and fairly investigated; and to ensure that individuals who are found to have violated this policy will be subjected to disciplinary action that is commensurate with the severity of the offense.

Current City Policy No. C93-02 Harassment Prohibited
POLICY
The City of Carmel-by-the-Sea prohibits any form of harassment and will not tolerate, condone or trivialize such actions by any employee, regardless of employment status. Additionally, such conduct is a violation of federal and state laws. Employees, applicants for employment, and others are to be free from harassment on the basis of race, religion, color, national origin, ancestry, handicap, disability, medical condition, marital status, sexual orientation, sex, pregnancy, age, or for asserting family care leave rights.

All employees who initiate or participate in the investigation of a compliant are protected from retaliation from any employee. Retaliation will be considered a serious act of misconduct.

Disciplinary action, up to and including termination, will be imposed in accordance with the established disciplinary process for behavior proven to have taken place in violation of this Policy.

Employees committing harassment as defined in this Policy are deemed by the City to be acting outside the scope of their employment.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
POLICY

The City of Carmel-by-the-Sea prohibits any form of harassment and will not tolerate, condone or trivialize such actions by any employee, regardless of employment status. Employees, applicants for employment, and others are to be free from harassment on the basis of race, religion, color, national origin, ancestry, handicap, physical or mental disability, medical condition, marital status, registered domestic partner status, sexual orientation, sex, pregnancy, childbirth or related medical conditions, age (40 or older), or for asserting family care leave rights, or for any other basis protected by law. Employees are also protected if they associate with a person who is, or is perceived to be, in one of those classifications. Any and all such
harassment is unlawful.

All employees who initiate or participate in the investigation of a complaint are protected from retaliation from any employee. Retaliation will be considered a serious act of misconduct.

The City will take disciplinary action, up to and including termination, against any employee who violates this policy.

Employees committing harassment as defined in this policy are deemed by the City to be acting outside the scope of their employment.

Current City Policy No. C93-02 Harassment Prohibited
APPLICATION OF POLICY
This Policy applies to all officers and employees of the City of Carmel-by-the-Sea, including, but not limited to, full-time and part-time employees, permanent and temporary employees, employees covered or otherwise exempted from personnel rules or regulations, and employees working under contract for the City. For the purposes of this Policy, “employee” is defined as each of the above.

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

Harassment includes conduct directed by men toward women, men toward men, women toward men, and women toward women.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
APPLICATION OF POLICY
This Policy applies to all officers and employees of the City of Carmel-by-the-Sea, including, but not limited to, full-time and part-time employees, permanent and temporary employees, employees covered or otherwise exempted from personnel rules or regulations, and employees working under contract for the City. For the purpose of this Policy, “employee” is defined as each of the above.

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

Current City Policy No. C93-02 Harassment Prohibited
DEFINITION
Harassment includes, but is not limited to:

1. Verbal Harassment - For example: epithets, derogatory comments or slurs on the basis of race, religion, color, national origin, ancestry, handicap, disability, medical condition, marital status, sexual orientation, sex, pregnancy, age, or for asserting family care leave rights.

2. Physical Harassment - For example: assault, impeding or blocking movement, or any physical interference with normal work or movement when directed at an individual on the basis of race, religion, color, national origin, ancestry, handicap, disability, medical condition, marital status, sexual orientation, sex, pregnancy, age, or for asserting family care leave rights.

3. Visual Forms of Harassment - For example: derogatory posters, notices, bulletins, cartoons, or drawings on the basis of race, religion, color, national origin, ancestry, handicap, disability, medical condition, marital status, sexual orientation, sex, pregnancy, age, or for asserting family care leave rights.

4. Sexual Favors – Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which is presented as an employment condition, unreasonably interferes with an individual’s work performance or creates an offensive work environment.

EMPLOYEE OBLIGATIONS

Employees are encouraged and have an obligation to:

1. Promptly report what they believe to be harassing behavior to a supervisor, manager, administrator, or the Personnel Officer.

2. Cooperate in any investigation.

3. Refrain from filing any complaint or report of harassment know to, or believed by, the employee to be without merit.

RETALIATION

All employees are assured that they may make such reports and participate in any investigation without fear of retaliation by the City, department management, their immediate supervisor, or any other employee. Retaliation will be considered a serious act of misconduct. Anyone found to have committed any act(s) of retaliation will be subject to the applicable disciplinary process, up to and including termination.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
TYPES OF HARASSMENT PROHIBITED
The City’s policy prohibits harassment on the base of race, color, national origin, sexual orientation, religion, physical or mental disability, age, veteran status, or any other characteristic protected by applicable law. The City will not tolerate an employee engaging in any of the following behaviors:

1. Verbal Behaviors - For example: suggestive, insulting or derogatory comments, epithets, innuendos, sounds, jokes, teasing or slurs based on any of the above categories, and sexual propositions or threats.

2. Physical Behaviors - For example: assault, impeding or blocking movement, or any unwanted physical contact or interference with normal work or movement, including touching, pinching, brushing with the body, impeding or blocking movement, contact or assault when directed at an individual because of any of the above categories.

3. Visual Behaviors - For example: derogatory posters, pictures, suggestive objects, notices, bulletins, cartoons, letters, drawings or gestures; also such actions as leering, whistling or obscene gestures based on any of the above categories.

4. Unwanted Sexual Behaviors - any unwanted sexual advances; threats or demands to submit to sexual requests, or visual, verbal or physical conduct of a sexual nature when:

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

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

• such conduct has the purpose or effect of unnecessarily interfering with an employee’s work performance or creating an intimidating, hostile or offensive working environment because of the persistent, severe or pervasive nature of the conduct.

In order to ensure that such offensive conduct does not rise to the level of conduct which is illegal, the City has a zero-tolerance policy toward even a single instance of any such conduct which by itself or when repeated would constitute harassment. Specifically, the City will not tolerate employees engaging in any of the following conduct:

• Unwanted sexual advances.

• Offering employment benefits in exchange for sexual favors.

• Making or threatening retaliation after a negative response to sexual offenses.

• Visual conduct such as leering, making sexual gestures, displaying sexually suggestive objects or pictures, cartoons, calendars or posters.

• Verbal conduct such as making or using derogatory comments, epithets, slurs, sexually explicit jokes, derogatory or suggestive comments about a person’s body or dress.

• Written communications of a sexual nature distributed in hard copy or via a computer network.

• Unwelcome verbal sexual advances or propositions.

• Verbal abuse of a sexual nature, graphic verbal commentary about an individual’s body, sexually degrading words to describe an individual, suggestive or obscene letters, notes or invitations.

• Physical conduct such as touching, assaulting, impeding or blocking movements.

• Retaliation for making harassment reports or threatening to report harassment.

An employee engaging in such conduct will be subject to appropriate disciplinary action, up to and including termination of employment, regardless of whether the employee engages in the prohibited conduct only once or multiple times. In addition, any employee who engages in any inappropriate conduct based on or directed at a person’s gender will be subject to appropriate disciplinary action, up to and including termination of employment.

Sexual harassment can occur between employees of the same sex. The City’s policy prohibits males from sexually harassing females or other males, and females from sexually harassing males or other females.

The victim of sexual harassment need not be just the employee who is the target of harassment. Other employees who observe or learn about the harassment can also be the victims and institute charges. Anyone who is affected by the conduct can potentially complain of harassment.

There is a clear line in most cases between mutual attraction and a consensual exchange and unwelcome behavior or pressure for an intimate relationship. A friendly, interaction between two persons who are receptive to one another is not considered unwelcome or harassment. Employees are free to form social relationships of their own choosing. However, when one employee is pursuing or forcing a relationship upon another who does not like or want it, regardless of friendly intentions, the behavior is unwelcome sexual behavior. An employee confronted with these actions by a co-employee should inform the harasser that such behavior is offensive and tell the harasser to stop. An employee should assume the sexual comments are unwelcome unless the employee has clear, unequivocal indications to the contrary. In other words, one employee person does not have to the other employee to stop for that conduct to constitute harassment. Certainly if one employee advises another employee that certain behavior is offensive, the offending employee must immediately stop the behavior, regardless of whether you agree with the employee’s person’s perceptions of that employee’s intentions.

RETALIATION PROHIBITED
All employees are assured that they may make reports of harassment and participate in any subsequent investigation without fear of retaliation by the City, department management, their immediate supervisor, or any other employee. Retaliation will be considered a serious act of misconduct. Anyone found to have committed any act(s) of retaliation will be subject to the applicable disciplinary process, up to and including termination. Examples of retaliation may, in accord with state and federal law, include, but are not limited to, the following examples:

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

• Ignoring the complainant or witness;

• Spreading rumors and innuendos about the complainant or witness;

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

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

• Withholding work-related information from the complainant or witness.

This policy does not in any way alter or affect the right of any person to make a charge of discrimination with any state or federal agency with jurisdiction over such claims, file a grievance under a collective bargaining agreement, or consult a private attorney.

Current City Policy No. C93-02 Harassment Prohibited
COMPLAINT PROCEDURE
Anyone who believes they have been subjected to any form of harassment should attempt to immediately resolve the compliant informally. The goal is to stop the harassing behavior promptly and establish a good working environment.

The Personnel Officer shall:

1. Be notified of all complaints of harassment

2. Investigate all written complaints of harassment

3. Document all complaints of harassment

If the Personnel Officer is the subject of the complaint, the matter will be investigated by the Assistant City Administrator.

For the purposes of this procedure ‘workdays’ shall include Monday through Friday, 8:30 a.m. – 5:00 p.m.., exclusive of holidays.

Informal Process

The following steps are recommended to informally address concerns and/or complaints of harassment:

STEP 1

1. The employee should attempt to resolve the issue informally within two (2) workdays of the alleged incident, by expressing his/her discomfort with the behavior to the offender in a constructive manner. If the employee would like support, he/she may seek support from:

a. His/her immediate supervisor

b. Any supervisor and manager within or outside the department

c. Department Manager

d. Personnel Officer

e. Assistant City Administrator

STEP 2

1. If the employee feels Step 1 is inappropriate, too intimidating or threatening, the employee may, within two (2) workdays of the alleged incident, request his/her immediate supervisor to arrange for:

a. A confidential meeting, scheduled within two (2) workdays of the request, where the employee can present his/her complaint to the harassing employee in the presence of their immediate supervisor(s). The complainant, if requested, may have a support person of his/her choice attend this meeting.

1) If the immediate supervisor(s) is/are identified as the harassing employee, the Personnel Officer shall arrange for and conduct this meeting.

a) If the Personnel Officer is identified as the harassing employee the Assistant City Administrator shall arrange for and conduct this meeting.

b. The results of this meeting shall be documented in writing and forwarded to the Personnel Office.

STEP 3

1. If the employee feels Step 2 is inappropriate, too intimidating or threatening, the employee may, within two (2) workdays of the alleged incident, request his/her Department Manager to arrange for:

a. A confidential meeting, scheduled within two (2) workdays of the request, where the employee can present his/her complaint to the harassing employee in the presence of their Department Manager(s). The complainant, if requested, may have a support person of his/her choice attend this meeting.

1) If the Department Manager(s) is/are identified as the harassing employee, the Personnel Officer shall arrange for and conduct this meeting.

a) If the Personnel Officer is identified as the harassing employee, the Assistant City Administrator shall arrange for and conduct this meeting.

b. The results of this meeting shall be documented in writing and forwarded to the Personnel Office.

Formal Process

If alleged harassment continues after using the informal process, or if the offended employee chooses not to follow the informal process, the employee:

1. Shall file a written compliant with the Personnel Officer using the City’s Harassment Complaint Form. This written complaint shall be filed within ten (10) workdays of the incident. As employee’s failure to report the occurrence of the alleged harassment within the ten-workday period may be deemed a voluntary waiver of any City action.

a. The employee may seek the assistance from a support person of his/her choice when preparing the written complaint.

Within three (3) workdays of receipt of the completed Harassment Complaint Form the Personnel Officer shall meet with the complainant and, if requested, the complainant’s support person, and:

1. Inform the complainant about the City’s Harassment policies and complaint procedures and answer any questions that the complainant may have regarding the City’s policy;

2. Inform the complainant about the other available options such as filing with the state and federal compliance agencies;

3. Inform the complainant that under the City’s procedure, complaints may be considered untimely if the written compliant was not filed within (10) workdays of the alleged incident, and that allegations brought to state or federal compliance agencies may have different filing time limitations which should be confirmed by the complainant with the agencies;

4. Inform the complainant that while every reasonable effort will be made to protect the confidentiality and privacy of the individuals involved, the conduct of an investigation requires that the alleged harasser be informed of the allegations, and that witnesses be interviewed;

5. Listen to the complainant’s allegations and discuss the actions complained of with discretion, sensitivity and due concern for the dignity of everyone involved;

6. Ask the complainant what remedies he/she feels would resolve the complaint;

7. Advise the complainant that the meeting will be documented in writing, assigned a case number and filed in the Harassment Complaint File under the security of the Personnel Officer.

Within three (3) workdays of conducting the meeting with the complainant, the Personnel Officer shall schedule a meeting with the person who allegedly engaged in the harassment and:

1. Inform him/her of the basis for the complaint and the right to be represented by an individual of his/her choice through the process;

2. Give him/her an opportunity to respond to the complaint;

a. This person shall be given ten (10) workdays to respond in writing to the allegations and identify witnesses.

3. Inform him/her that if a response to the complaint is not received within ten (10) workdays, the complaint may be considered valid, and the appropriate disciplinary action may be taken in accordance with the applicable procedures outlined in the Municipal Code of the City of Carmel-by-the-Sea.

Disciplinary action is subject to the appropriate appeals process.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
COMPLAINT PROCEDURE
The City of Carmel-By-The-Sea has established a convenient, confidential and reliable mechanism for reporting incidents of harassment and/or retaliation. Employees are encouraged and have an obligation to promptly report what they believe to be harassing or retaliatory behavior.

Employee’s Responsibility When Subjected to Harassment
Any employee who believes he or she has been subjected to harassment prohibited by this policy should immediately tell the harasser to stop his/her unwanted behavior. The purpose of immediately communicating to a harasser that the behavior is unwelcome is to stop the harassment before it becomes more serious. Such notice will also go to support a claim that the harassment did occur. Failure to notify the harasser that behavior is unwelcome does not prevent the employee from otherwise reporting the harassment, and the employee is encouraged to report the harassment regardless of whether or not they communicate to the harasser that the behavior is unwelcome.

Any employee who believes he or she has been subjected to harassment prohibited by this policy is required to immediately report that behavior to any one of the following individuals: his or her supervisor; the City’s Human Resources Personnel Officer; or the City Administrator. An employee is not required to complain first to his or her supervisor if that supervisor is the individual engaging in the unwanted behavior. Immediately reporting the harassing behavior is important because the sooner the allegations can be investigated, the sooner appropriate steps can be taken to end the harassment. ALL EMPLOYEES AND APPLICANTS ARE ASSURED THAT THEY MAY MAKE SUCH REPORTS WITHOUT FEAR OF RETALIATION BY THE CITY, DEPARTMENT MANAGEMENT, THEIR IMMEDIATE SUPERVISOR OR ANY OTHER EMPLOYEE.

Supervisor Responsibilities
Supervisors are responsible for enforcing the City’s harassment and prevention policy and must ensure that all employees are aware of the City’s policy through open discussions of the policy at staff meetings and by posting the policy in a conspicuous location accessible to all staff members. Supervisors should be cognizant of employees’ behavior and must not permit any employee under his/her authority to be subject to or engage in any conduct prohibited by the City’s policy. Supervisors who receive complaints or who observe conduct prohibited by this policy must immediately inform the offending employee to cease the conduct and further advise the Human Resources Personnel Officer of the incident. The City will take disciplinary action, up to and including termination, against any supervisor who fails in his or her responsibility to
take immediate action in response to an employee’s complaint of harassment or to stop harassing conduct committed in his or her presence or stop harassing conduct about which the supervisor has knowledge.

Supervisors have a mandatory obligation to document in writing any harassing behavior that they observe or are made aware of and to promptly provide that report to the Personnel Officer. If for any reason the Personnel Officer is implicated in the alleged harassment or is otherwise unavailable to respond to the complaint, then the reporting must be made to either the City Administrator or the Mayor instead of the Personnel Officer. In those instances, the City
Administrator or Mayor will have all the responsibilities that the Personnel Officer would otherwise have for investigating and responding to the complaint of harassment.

Current City Policy No. C93-02 Harassment Prohibited
INVESTIGATION GUIDELINES
Investigations will be timely and as extensive as required, based upon the nature of the allegations. All persons named as potential witnesses and those who may have information relevant to the issues of the complaint will be contacted and interviewed during the course of the investigation.

All investigations shall be documented in writing and will be handled with discretion, sensitivity and due concern for the dignity to those involved. Every reasonable effort will be made to restrict information on the specifics of the complaint to those who are participating in the investigation: the complainant, the alleged harasser, witnesses, and department management.

All persons contacted or interviewed during the investigation will be requested not to discuss the subject matter of the investigation in order to protect the privacy of all those participating in the investigation.

If during the course of the investigation, the alleged harassment is reported to be continuing, the Personnel Officer shall notify the Assistant City Administrator who shall take such emergency or temporary action as may be necessary or appropriate under the circumstances.

1. It is the policy of the City of Carmel-by-the-Sea that 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 and that supervisor shall not participate in performance reviews of the employee, pending the outcome of the investigation.

This action shall not be considered punitive but shall be considered a protective measure for all involved.

If, at the conclusion of the investigation, it is found that harassment occurred, the Personnel Officer shall forward the findings, which are not subject to appeal, along with any recommendations to the appropriate management level for implementation of the disciplinary process, if any.

1. The type of disciplinary action recommended shall be commensurate with the severity of the offense and in accordance with the City’s approved disciplinary action procedures, and must result in prompt and effective remedial actions.

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

At the conclusion of the investigation the complainant(s) shall be advised by the Personnel Officer of the disposition of the complaint. If it has been determined that harassment has occurred the complainant(s) shall be notified regarding:

1. Steps taken to correct the harassment;

2. Action the complainant should take if the harassing behavior recurs;

If discipline is imposed on the harasser, the specific manner of discipline imposed shall not be communicated to the complainant.

Supervisory and management personnel shall conduct follow-up inquiries with the involved employees to determine if the alleged conduct has stopped or has resumed. These inquiries shall be documented in writing.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
Investigating Officer’s Responsibilities
All complaints of harassment will be investigated immediately. The Investigating Officer will either be the Human Resources Personnel Officer or in the event the Personnel Officer is implicated in any way in the allegations of harassment, the City Administrator or Mayor. The investigating Officer will produce a written report, which, together with the investigation file, ill be discussed with the complainant as soon as reasonably possible and in no event longer than two weeks from the date the complaint is made. The Investigating Officer will have the duty to immediately bring all harassment and/or retaliation complaints to the confidential attention of the City Administrator or the Mayor.

Only those who have an immediate right to know, including the Investigating Officer, the alleged target of harassment and/or retaliation, witnesses to the conduct, and the alleged harasser will or may find out the identity of the complainant. All individuals contacted in the course of the investigation will be advised that all retaliation or reprisal will constitute a separate actionable offense for which penalties may be implemented under this policy. All investigations will be handled with discretion, sensitively and due concern for the dignity of those involved. All persons contacted or interviewed during the investigation will be instructed not to discuss the subject matter of the investigation in order to protect the privacy of all those participating in the investigation.

The investigation will be as extensive as required, based upon the nature of the allegations. All persons named as potential witnesses by the complainant will be contacted during the course of the investigation, and those witnesses who have information relevant to the issues of the complaint will be interviewed. The individual who is alleged to have committed acts of harassment will be contacted during the investigation. They will be informed of the allegations being made against him or her and be given the opportunity to respond to the allegations including he opportunity to identify witnesses. Any accused employee has the option to be represented during investigation by a support person of his or her choice.

The complainant may expect a timely resolution of the complaint. The complainant will be kept apprised of the status of the complaint on a regular basis by the Investigating Officer.

The Investigating Officer has the following responsibilities to the complainant:

1. Meet with the complainant as soon as mutually convenient and in no event more than two weeks from the date the report is received;

2. Inform the complainant about the City’s Harassment Prevention Policy and inform the complainant that he or she is guaranteed to be safe from retaliation. Inform the complainant that he or she is required to immediately report any retaliation, purported retaliation, or ongoing harassment he or she may experience. Review with the complainant the City’s complaint procedures and answer any questions that the complainant may have regarding City’s Harassment Prevention Policy;

3. Inform the complainant about the other available legal options, including but not limited to filing a written complaint with state and federal compliance agencies;

4. Inform the complainant that while every reasonable effort will be made to protect the confidentiality and privacy of the individuals involved, the conduct of the investigation requires that the alleged harasser be informed of the allegations, and that witnesses be interviewed;

5. Ask the complainant to tell the entire story in his or her own words. Listen to the complainant’s allegations and take notes writing down the relevant facts such as dates, times, situations, witnesses and anything else that seems relevant. Discuss the actions complained of with discretion, sensitivity and due concern for the dignity of everyone involved;

6. Ask the complainant what remedies he/she feels will resolve the complaint;

7. Advise the complainant that the meeting will be documented in writing and filed in the Harassment Complaint File under the security of the Personnel Officer or appropriate personnel. The Investigating Officer has the following responsibilities to the alleged harasser:

1. Inform him or her of the basis of the complaint and the right to be represented by an individual of his or her choice throughout the process;

2. Give him or her an opportunity to respond to the complaint affording him or her the same listening and respectful approach that was accorded the person who filed the complaint and the other witnesses.

3. Caution him or her that no retaliation is permitted, regardless of the outcome of the investigation and that they may not in any way treat the employee who filed the complaint differently than any other employee is treated.

The following general Investigation Guidelines apply to all investigations:

1. Investigations will be timely and as extensive as required, based on the nature of the allegations. All persons named as potential witnesses and those who may have information relevant to the issues of the complaint will be contacted and interviewed during the course of the investigation. Every reasonable effort must be made to complete the investigation and take remedial action within three weeks of the initial complaint.

2. The Investigating Officer may involve an outside facilitator such as legal counsel to assist in the investigation procedure, including conducting interviews with employees who may be more comfortable speaking candidly to an objective outsider.

3. All investigations must be documented in writing and will be handled with discretion, sensitivity and due concern for the dignity of those involved. Every reasonable effort will be made to restrict information on the specifics of the complaint to those who are participating in the investigation: the complainant, the alleged harasser, witnesses, and department management.

4. All persons contacted or interviewed during the investigation will be requested not to discuss the subject matter of the investigation in order to protect the privacy of all those participating in the investigation.

5. If during the course of the investigation, the alleged harassment is reported to be continuing, the Personnel Officer must notify the City Administrator who will take such emergency or immediate action as may be necessary or appropriate under the circumstances.

a. It is the policy of the City of Carmel-by-the-Sea that if the alleged harasser is the complainant’s supervisor, the complainant must be removed from direct supervision of that employee and that supervisor must not participate in performance reviews of the employee, pending the outcome of the investigation. This action will not be considered punitive but will be considered a protective measure for all involved.

6. If, at the conclusion of the investigation, it is found that harassment has occurred, the Personal Officer must forward his or her findings, along with any recommendations to the City Administrator or Mayor for implementation of the disciplinary process, if any.

a. The type of disciplinary action recommended will be commensurate with the severity of the offense and in accordance with the City’s approved disciplinary action procedures, and must result in prompt and effective remedial action.

i) Disciplinary action is subject to the applicable appeals process.

7. At the conclusion of the investigation the complainant will be advised by the Personal Officer of the disposition of the complaint. If it has been determined that harassment has occurred the complainant will be notified regarding the following:

a. Steps taken to correct the harassment. However, the specific manner of discipline imposed may not be communicated to the complainant.

b. Action the complainant should take if the harassing behavior recurs;

8. Supervisory and management personnel must conduct follow-up inquiries with the involved employee to determine if the alleged conduct has stopped or has resumed. These inquiries must be documented in writing.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
Penalties
In determining the ultimate penalty in cases of harassment, the nature and severity of the claimed misconduct, along with any other relevant factors, will be reviewed by management. It is within management’s discretion to enact a more severe penalty against an accused harasser than as set forth below.

If the investigation leads to a determination that the allegations of harassment are true then the City of Carmel-by-the-Sea will apply the following disciplinary consequences:

1. An employee may be immediately discharged for any act in which conduct is proven or otherwise demonstrated to the satisfaction of the Investigative Officer and/or management.

2. Acts of harassment which are proven to be non-pervasive will generally result in a warning and/or suspension upon the first offense and discharge upon the second offense.

3. In determining the ultimate penalty in cases of harassment, the nature and severity of the claimed misconduct, along with any other relevant factors will be reviewed by management, and it is within management’s discretion to enact a more severe penalty than as set forth herein.

Current City Policy No. C93-02 Harassment Prohibited
COMPLAINTS AGAINST VOLUNTEERS, AND/OR CITY COUNCIL APPOINTEES
This policy applies equally to volunteers, appointees of the City Council including members of Boards, Commissions and Committees, the City Administrator, the City Attorney, the City Engineer, and the City Treasurer.

Employees who believe they have been harassed by any of the above shall notify the Personnel Officer who shall first try to resolve the matter informally.

Any employee who files a complaint against the above officials is assured of protection against retaliation by that official under City policies as well as state and federal regulations.

Informal Process: The following steps are recommended to informally end the harassment:

1. Resolve the complaint informally by expressing his/her discomfort with the behavior to the offender in a constructive manner. If the employee would like support, he/she may seek support from:

a. Department Manager

b. Assistant City Administrator

c. Personnel Officer

If the alleged harassment continues after using the informal process, or if the offended employee chooses not to follow the informal process the employee shall file a formal, written complaint, pursuant to this Policy, with the Personnel Officer who shall conduct a formal investigation. Copies of the completed investigative report shall be distributed as follows:

1. If the alleged harasser is a volunteer: The report shall be forwarded to the appropriate management employee in charge of supervising the volunteer who shall take appropriate action, if any.

2. If the alleged harasser is a member of a Board, Commission, or Committee, or is the City Attorney, the City Engineer, or City Treasurer: The report shall be given to the Mayor, and City Administrator. The Mayor will oversee the implementation of appropriate disciplinary action, if any.

3. If the alleged harasser is the City Administrator: The report shall be given to the City Council’s Personnel Committee. The Committee shall review the findings and make recommendations, if any, to the entire City Council.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
MISCELLANEOUS GUIDELINES
Complaints Against Volunteers or City Council Appointees.
This policy applies equally to volunteers, appointees of the City Council, and others, including members of Boards, Commissions and Committees, the City Administrator, the City Attorney, the City Engineer, and the City Treasurer.

Employees who believe they have been harassed by any of the above must follow the complaint procedure previously specified including immediately reporting that behavior to any one of the following individuals: his or her supervisor; the City’s Human Resources Personnel Officer; the City Administrator; or the Mayor.

An investigation will then be undertaken by the Personnel Officer as previously specified. In addition to those procedures, the completed investigation report will be distributed as follows:

1. If the alleged harasser is a volunteer: the report must be forwarded to the appropriate management employee in charge of supervising the volunteer who must take appropriate action.

2. If the alleged harasser is a member of a Board, Commission, or Committee, or is the City Attorney, the City Engineer, or City Treasure: the report must be given to the Mayor and the City Administrator. The Mayor will oversee implementation of appropriate disciplinary action.

3. If the alleged harasser is the City Administrator: the report must be given to the Mayor. The Mayor must review the findings and make recommendations accordingly to the entire City Council.

Current City Policy No. C93-02 Harassment Prohibited
COMPLAINTS AGAINST ELECTED OFFICIALS
This policy applies equally to the Mayor and members of the City Council. Employees who believe they have been harassed by any of the above shall notify the Personnel Officer, who shall first try to resolve the matter informally.

Any employee who files a complaint against the above officials is assured of protection against retaliation by that official under City policies as well as state and federal regulations.

Informal Process: The following steps are recommended to informally end the harassment:

1. Resolve the complaint informally by expressing his/her discomfort with the behavior to the offender in a constructive manner. If the employee would like support, he/she may seek support from:

a. Department Manager

b. Assistant City Administrator

c. Personnel Officer

d. City Administrator

COMPLAINTS AGAINST ELECTED OFFICIALS

Formal Process:

If alleged harassment continues after using the informal process, or if the offended employee chooses not to follow the informal process, the employee shall file a formal, written complaint, pursuant to this Policy, with the Personnel Officer who shall conduct a formal investigation.

If it becomes clear that an allegation against the Mayor and/or a member of the City Council appears to have substance and an internal resolution is not possible, the complainant will be so notified and referred to the state and federal compliance agencies. This referral will be made because the City has no administrative control over elected officials. Consequently, were remedial action found to be appropriate, the City would be unable to provide an effective remedy to the complainant.

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
Complaints Against Elected Officials
This policy applies equally to the Mayor and members of the City Counsel. Employees who believe they have been harassed by an elected official must follow the complaint procedure previously specified including immediately reporting that behavior to any one of the following individuals: his or her supervisor; the City’s Human Resources Personnel Officer; or the City Administrator.

An investigation will then be undertaken by the Personnel Officer as previously specified. Any employee who files a complaint against an elected official is assured of protection against retaliation by that official under City Policies as well as State and Federal regulations. If it becomes clear that an allegation against an elected official has substance and an internal resolution is not possible, the complainant will be notified and referred to the State and Federal compliance agencies set forth below. This referral will be made because the City has no administrative control over elected officials. Consequently, were remedial action found to be appropriate, the City would be unable to provide an effective remedy to the complainant.

Complaints Against Outside Parties (Non-Employees)
If the complaint is against an outside party or other non-employee not previously addressed in this policy, then the complainant must follow the complaint procedure previously specified including immediately reporting that behavior to any one of the following individuals: his or her supervisor; the City’s Human Resources Personnel Officer; or the City Administrator.

An investigation will then be undertaken by the Personnel Officer as previously specified. The extent of the City’s control and any other legal responsibility which the City may have with respect to the conduct of the non-employee will be considered.

If the investigation finds the sexual-harassment occurred during the scope of work for a nonemployee, this information must be forwarded to their employer for corrective action. If the nonemployee has no employer affiliation, such as a private citizen, appropriate action will be taken to prevent a recurrence. Such action may include modification of assignments to ensure no future contact, provide or add security, and the like.

Each case for non-employees must be handled on an individual basis to determine the most ffective remedy to stop the harassment.

Current City Policy No. C93-02 Harassment Prohibited
STATE AND FEDERAL COMPLIANCE AGENCIES
Nothing in this policy shall be interpreted so as to deny the right of any employee who believes he/she has been harassed to file a compliant with the state and /or federal compliance agencies and/or in state of federal court. However, time limits for filing complaints with compliance agencies vary and employees should check directly with those agencies for specific information.

The state and federal compliance agencies may be contacted at the following addresses:

(State) Department of Fair Employment and Housing
111 North Market Street, #810
San Jose, CA. 95113-1102
(408) 277-1264

(Federal) Equal Employment Opportunity Commission
901 Market Street, Suite 500
San Francisco, CA. 94103
(415) 744-6500 or 1-(800) 669-3362

City Harassment Prevention Policy (Revised 2010) (Kennedy, Archer & Harray)
Duty of Cooperation
An effective harassment policy requires support of all of the City of Carmel-by-the-Sea’s personnel. Anyone who engages in harassment and/or retaliation or who fails to cooperate with any City of Carmel-by-the-Sea sponsored investigation may be disciplined by suspension or termination from employment. The City of Carmel-by-the-Sea officials who refused to implement remedial measures, obstruct remedial efforts or who retaliate against complainants, witnesses or the alleged harasser may be disciplined by suspension or termination from employment.

State and Federal Compliance Agencies
Nothing in this policy will be interpreted so as to deny the right of any employee who believes he or she has been harassed to file a complaint with the state and or federal compliance agency and or bring suit in state or federal court. However, time limits for filing complaints with compliance agencies vary and employees should check directly with those agencies for specific information.

The state and federal compliance agencies may be contacted at the following addresses:

(State) Department of Fair Employment and Housing
111 North Market Street, #810
San Jose, CA 95113-1102
(408) 227-1264

(Federal) Equal Employment Opportunity Commission
901 Market Street, Suite 500
San Francisco, CA 94103
(415) 744-6500 or
1-800-669-3362

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.”

PROCEDURE FOR RECALLING LOCAL OFFICIALS

PROCEDURE FOR RECALLING STATE AND LOCAL OFFICIALS
Prepared by the Office of the Secretary of State
Revised 2007


recall

PROCEDURE FOR RECALLING STATE AND LOCAL OFFICIALS
Prepared by the Office of the Secretary of State
Revised 2007

II. RECALL OF LOCAL OFFICERS
NOTE: Pages 14 – 26, see above document.

Highlights, as follows:
II. RECALL OF LOCAL OFFICERS
A. IN GENERAL
The State Constitution requires that the Legislature must provide for the recall of local officers.

For the purpose of recall of local officers, the term "clerk" refers to the appropriate elections official for the jurisdiction in which the recall is being sought, in particular:

2. the city clerk in the case of the recall of elective officers of a city;

C. FORMAT OF PETITION
5. Approval of Petition Form by Secretary of State
No signatures may be obtained on the recall petition until the form of the petition has been approved by the elections official. (§11042)

E. The number of signatures required TO QUALIFY A PARTICULAR RECALL IS AS FOLLOWS:
1. If an officer of a city, county, school district, county board of education, or resident voting district is sought to be recalled, the number of signatures must be equal in number to not less than the following percent of registered voters in the electoral jurisdiction:

Twenty-five percent if the registration is less than 10,000 but at least 1,000.

NOTE: 2781 registered voters in April 2010, therefore 695 signatures required for recall.

F. FILING OF PETITION - DEADLINE
After approval by the elections official, proponents must submit to the elections official, during normal business hours as posted, a petition with the requisite number of signatures within:

2. 60 days if the electoral jurisdiction has less than 5,000 registered voters but at least 1,000.

L. DATE OF ELECTION
The election shall be held not less than 88 nor more than 125 days after the issuance of the order, and if a regular or special election is to be held throughout the electoral jurisdiction of the officer sought to be recalled within such time period, the recall election shall be held on the same day and consolidated with the regular or special election. (§11242)

If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives the highest number of votes is the successor to the unexpired term of the recalled officer. The officer may not be a candidate to succeed himself/herself at the recall election. (Cal.Const., Art. II, Sec. 15; §11381(c), 11384, 11385)

‘MINUTES’ for Five Noteworthy 14 September 2010 City Council Agenda Items

“MINUTES”
CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
Tuesday, September 14, 2010

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 report on the new CRFA Ambulance.

Public Safety Director George Rawson introduced Dave Jedinick. Jednick presented a photo of the new Carmel Fire and Carmel Regional Fire Ambulance, a city vehicle for the JPA. The new ambulance allows for maximizing "fire and EMS capabilities." The Carmel Fire Department took deliver on August 20.

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.

Mayor McCloud opened the meeting to public comment.

Carl Iverson spoke about Carmel Heritage Society's Antique and Collectible Appraisal Day on Saturday, October 2 from 1:00 P.M. – 4:00 P.M., including six antiques expert appraisers at First Murphy House, Lincoln St. & 6th Av.

Skip Lloyd again advocated for an independent review of the personnel situation over the last eight years, including settlements and the review to be made public at completion. Lloyd presented a review of Jane Miller’s public court record, including five “similar elements” claims between 2003 to 2008. Until the review is conducted and made public, a “cloud of doubt will linger and the city will not be able to move on,” he stated.

Mayor McCloud closed the meeting to public comment.

VII. Consent Calendar
These matters include routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action.

F. Consideration of a Resolution authorizing co-sponsorship between the Forest and Beach Commission and the Friends of Carmel Forest (FOCF) of an “Arbor Day” event on Sunday, October 17, 2010.

I. Consideration of a Resolution authorizing the City Administrator to sign and file a financial assistance application in the amount of $715,000 with the State Water Resources Control Board for storm drain improvements under the Clean Water State Revolving Fund (CWSRF).

Mayor McCloud opened and closed the meeting to public comment.

Council Member TALMAGE moved to approve the Consent Agenda Items A-L and N, seconded by Council Member HAZDOVAC, and carried by the following roll call vote:

AYES: COUNCIL MEMBERS: BURNETT, HAZDOVAC; SHARP; TALMAGE & McCLOUD
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE

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

B. Consideration of an appeal of the Planning Commission’s decision to approve the Carmel Sands Redevelopment Project and to adopt a Mitigated Negative Declaration. The Carmel Sands Lodge is located on the northeast corner of San Carlos Street and Fifth Avenue. The appellant is Barbara Livingston.

Mayor Sue McCloud announced at the beginning of the meeting that the agenda item was pulled by the Carmel Sands Lodge owner and will be continued to a future city council agenda.

Council Member HAZDOVAC moved to continue the agenda item to the October 2010 regular City Council meeting, seconded by Council Member SHARP, and carried by the following roll call vote:

AYES: COUNCIL MEMBERS: BURNETT, HAZDOVAC; SHARP; TALMAGE & McCLOUD
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE

CLARIFICATION: The Carmel Sands Project was pulled due to a resident informing the City that the international orange snow fencing was supposed to be in position delineating the ridge lines, heights, et cetera, of the project at least ten days in advance of the city council meeting. Since the snow fencing was not in position, the item had to be pulled and continued.

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

B. Announcements from the Mayor and City Council members (Council members may ask a question for clarification, make a brief announcement or report on his or her activities).

City Council Member Jason Burnett asked for information about why his three agenda item requests were not on the agenda and the grounds for not including them on the agenda, as requested. The mayor basically stated that she preferred to talk to him in private, not in public, about this matter. Mayor Sue McCloud cited short staffing and the persons responsible for placing items on the agenda as the mayor, vice mayor, city clerk and city administrator.

NOTE:
Carmel-by-the-Sea
Municipal Code
Chapter 2.08
CITY ADMINISTRATOR*
2.08.060 Powers and Duties.
E. Support of the City Council. The City Administrator shall be responsible to the City Council for the preparation of agendas, for the provision of all necessary clerical functions for the Council, and the maintenance of necessary records.

COMMENTARY: Imagine a Centennial Celebration in a Renovated Forest Theater as an Honor Befitting the Legacy of Our Community Theater, Our ‘Cultural Icon’

Walt de Faria, president of the Forest Theater Foundation recently stated, as follows:

“The legacy is that (the Forest Theater has) preserved community involvement in theater. It alone has kept theater alive in Carmel and on the Monterey Peninsula all these years.”

In honor of the 100th anniversary of the Forest Theater, (our “cultural icon”), the City of Carmel-by-the-Sea has scheduled a “centennial celebration” of the Forest Theater on the afternoon of Sunday, August 29, 2010. This celebration is “to remind people that since 1910 there has been ongoing theater here that has provided entertainment for visitors and residents alike,” stated Mayor Sue McCloud.

However, imagine a Centennial Celebration befitting Frank Devendorf and Frank Powers, founder of the City/owner of the original land and founder of the City, respectively, Herbert Heron, founder of the Forest Theater and all actors, directors and theater-goers, past and present, in a renovated Forest Theater.

In the past ten years specifically, there have been several opportunities for the mayor and council to fulfill their stewardship responsibilities by committing to, budgeting for and implementing a renovation plan, Yet, these opportunities were never acted upon; they therefore represent missed opportunities, as the following events demonstrate:

• Beginning in 2001, the mayor and city council had opportunities to budget for the renovation of the Forest Theater in phases over multiple years as outlined by the city-commissioned Forest Theater Facility Master Plan, prepared by local architect Brian Congleton.

• In December 2008, the mayor and council unanimously adopted a Resolution entering into an agreement with RFM Architects for a Schematic Design. As the accompanying staff report stated: “The estimated time to complete the schematic design is three months. RFM recognizes the urgency of moving the project along quickly so that the renovation can be completed by the 2010 season (or the 100th anniversary of the Forest Theater).” And “the goal of completing the renovation by May 2010, the project must commence post haste so construction can be under way by April 2009.”

• In late 2009, the mayor and council approved a contract with William J. Camille, Project Management Consultant, for Forest Theater Renovation Construction Phasing and Cost Planning breakdown of theater architect Richard McCann’s Schematic Design of the Forest Theater. The contract included a preliminary review of Camille's findings with the city, a final report, and presentation to the City Council to be completed in one month, but only the oral preliminary review was presented to the mayor, council member Karen Sharp and city administrator.

• With the city council's adoption of the Triennial Budget FY 2010/11 thru 2012/13 in June 2010, there are no monies budgeted for a Forest Theater Capital Project for Fiscal Year 2010-2011 through Fiscal Year 2014-2015.

In conclusion, while a celebration honoring the 100th anniversary of the historic Forest Theater is to be applauded, it is important to realize that the city’s original intention was to celebrate the occasion in a renovated Forest Theater. To wit, a Forest Theater renovation plan was to be adopted by the mayor and council in early 2009, commencement of renovation construction by April 2009 and completion of the Forest Theater renovation by May 2010, in time for the 100th anniversary on July 9, 2010. Yet as described, the mayor and council over years and years have missed opportunities and thereby failed to provide the requisite leadership and stewardship to make the renovation of the Forest Theater a reality.


ADDENDUM:

Forest Theater Renovation Plans July 2009
Forest Theater Renovation Plans July 2009
RFM Architects
Richard F. McCann, President, Principle-In-Charge

City of Carmel celebrates historic outdoor Forest Theater's centennial anniversary
Carmel celebrates historic Forest Theater's centennial anniversary
By LILY DAYTON Herald Correspondent, The Monterey County Herald, 08/26/2010