PUBLIC RECORDS ACT REQUESTS: Attorney Michael Stamp Representing John Hanson, Former Building Official

ABSTRACT: As reported in the Monterey County Weekly (As Number of Layoffs at Carmel City Hall Grows, Ex-Employees Start Hiring Lawyers, Sara Rubin, Thursday, October 31, 2013), former Building Official John Hanson has retained attorney Michael Stamp. Information related to Michael Stamp’s Public Records Act requests, including Date Received, 10-Days date, Requestor and Content of Request and Fulfilled Status by Michael Stamp submitted to the City on October 24, 2013, are reproduced from the City’s Public Records and Media Request Log.
Note: Previously, attorney Michael Stamp represented former Carmel-by-the-Sea employees Greg D’Ambrosio, Brain Donoghue, Sandy Farrell and Margaret Pelikan. All of their claims related of “hostile workplace environment” and were settled in excess of $500,000. In 2008, Stamp represented Human Resources Manager Jane Miller and filed a lawsuit against the City for claims of sexual harassment, employment discrimination and retaliation. The City settled the lawsuit for $600,000 and over $200,000 in attorney fees in 2010.

                                                 PUBLIC RECORDS ACT REQUEST

Date Received: 10-24-13

10-Days: 11-07-13

Requestor: Michael Stamp

Content of Request:
All employee employment contracts and/or employment agreements with the City in effect at any time in the last 10 years;

Records showing the current employment status of employees (or past employees) who had employment contracts and/or agreements with the City at any time in the last 10 years;

resumes of applicants, job applicants and job offers for the following positions, including when an employee was hired or promoted or placed on temporary or ongoing leave, if at all, at any time in the last five years a) City Manager b) Planning & Building Services Mgr c) Chief of Police d) Human Resources Mgr (or equivalent position);

Records that discuss, mention, or refer to any City employees placed on paid administrative leave during any time in the last five years;

The City's anti-discrimination employment policy.

The most recent City employee organizational charts which show City positions and the persons currently filling those positions for the City;

Resumes, or equivalent records, for employees hired to fill positions that are management level or above and the person was hired (sic) by the City at any time during the last five years;

Employee contracts entered into or in effect at any time in the past five years

Fulfilled Status: PENDING

Source: Public Records and Media Request Log , November Agenda Packet

GOVERNMENT ETHICS: The Lucifer Effect I - IV, Blind Spots I - VIII & Apologies: Central to a City's Ethical Environment, Apology Revisited and Apology - The Canary in the Mine of Local Government Organizations

ABSTRACT: In the context of the current campaign for mayor and city council and City Administrator Jason Stilwell’s moral, non-situational ethics philosophy and in a constructive attempt to address the poor ethics environment of Carmel’s city government characterized by city employees’ claims of “hostile workplace environment,” sexual harassment, employment discrimination and retaliation, subsequent monetary settlements totaling approximately $1.4 million and the City Council’s failure to accept responsibility and give a complete and honest apology, titles of posts with selected excerpts for educational purposes and links to posts written by Robert Wechsler, Director of Research, City Ethics, from CityEthics.org “making local government more ethical,” are presented.

The Lucifer Effect I — A Situational Approach to Local Government Ethics
Robert Wechsler
Director of Research, City Ethics
Wed, 2011-10-12

Local governments are hardly prisons, but they are situations that, especially where there are poor ethics environments, can place strong pressures on individuals to go along with unethical norms. The pressures involve us in loyalty, secrecy, becoming and remaining one of the gang, and playing the games necessary to raise funds in order to get re-elected and to appease those with power, whether in the government, in the party, or in the community (that is, large taxpayers, employers, developers, contractors, organizations, and their lobbyists).

The Lucifer Effect II — Situational Forces
Robert Wechsler
Director of Research, City Ethics
Wed, 2011-10-12

The Effect of Situational Forces on New Officials
New officials often get pulled into feeling superior to ordinary citizens. They come in as members of the public who don't know what's what, but they have the chance to become a member of the in crowd, knowledgeable, respected, and arrogant. This is hard to resist. And with the idea of having special knowledge and becoming one of the elect comes the idea that you have special rights, that you deserve things others don't deserve. You are entitled to treat yourself and others differently from the average citizen. This is one of the principal factors in the process of co-opting. And once you're accepted, it's hard to act in such a way that you might be kicked out. It takes a strong rather than a good character. It takes independence of mind as well as courage.

The Lucifer Effect III — Debriefing and Other Ways to Deal with Situational Forces
Robert Wechsler
Director of Research, City Ethics
Thu, 2011-10-13

Zimbardo employs a three-part analysis, adding to the individual and the situation what he calls "the system," the forces that create the situation, that give legitimacy to the unethical norms in a poor ethics environment. "The system" is not just the current leaders, because systems, their norms and unwritten rules have a history. But each set of new leaders chooses whether to allow the unwritten rules to continue, and they also determine the level of pressure that is placed on subordinates to play by the rules, as opposed to the laws or the ethics, and how to create this pressure, that is, through intimidation, setting an example, making examples of those who don't play by the rules, etc.

The Lucifer Effect IV — Miscellaneous Observations
Robert Wechsler
Director of Research, City Ethics
Fri, 2011-10-14

Resisting Influences on Our Behavior
What should a local government official or employee's goal be with respect to dealing with situational forces? It's good to be involved with our environment and to trust those we work with and for. But we also need to distance ourselves to some extent. One advantage government officials have is that there is someone in our organization other than superiors, colleagues, and subordinates. There is the public. Distancing oneself from other officials and employees can take the form of feeling responsible to the public, trying to look at things from their point of view. Taking the public's point of view will cause you to look for appearances of impropriety, which are the core of government ethics.

Being Your Own Guard
I've focused exclusively on the guards in the Stanford Prison Experiment, because they are effectively in the position of government officials: the people with power. But there is something to be learned from the way the prisoners acted. As Zimbardo says, they "became their own guards." They accepted and internalized the rules that were imposed on them, and even when they were given the chance to leave prison, they walked right back in.

This is true, to some extent, of the public. It has the true power in our system of government, and yet it accepts the rules that officials place on them and usually feels powerless. This can best be seen by the failure to attend public meetings and even to vote. But even among those who vote and attend meetings, it can be seen by the acceptance of decisions without explanations and the acceptance of explanations that are seriously inadequate. It can be seen in such statements as, "They're all crooks." It can be seen in the tendency not to stand up to irrational limitations, unless they are seen as partisan. It even takes the form of open support for unethical behavior, especially when one is member of a group that has finally taken power and has, one feels, the right to take what is "rightfully ours," even if what is taken are one's own taxes.

Blind Spots I — Unconscious Unethical Conduct
Robert Wechsler
Director of Research, City Ethics
Mon, 2011-04-04

Blind Spots: Why We Fail to Do What's Right and What to Do about It by Max H. Bazerman and Ann E. Tenbrunsel (Princeton University Press) is a must-read book for government ethics practitioners. This new book (it came out just a couple of weeks ago) incorporates a great deal of research in behavioral ethics to look (1) at what is going on in the minds and actions of those who act unethically but do not intend to act unethically, and (2) at what can be done to change their behavior for the better.

Bounded Awareness
The mechanism that prevents us from seeing what we need to see to make ethical decisions is what the authors call "bounded awareness." We tend to exclude important, relevant information from our decision-making by placing bounds around our definition of a problem. In effect, we put on blinders, like a race horse. We narrow our concept of responsibility (e.g., to our boss rather than to the public), we focus on instructions that are given to us or support a decision our supervisor or local legislators support. We do not ask for neutral external input, and we reject those who differ with us as partisan or self-interested. We focus on meeting a deadline rather than seeking out more information and opinions. We limit ourselves to our functional boundaries, such as engineering, law, finance. We give in to groupthink, that is, seek or accept unanimity rather than consider alternatives. We act out of fear, that is, fear of rejection, of being seen as goody-goody, of the consequences of whistle-blowing, of threatening our job. We focus on the law rather than the ethics.

Blind Spots II — Motivated Blindness
Robert Wechsler
Director of Research, City Ethics
Wed, 2011-04-06

Although we have more trouble seeing our own unethical behavior than we do seeing others' unethical behavior, Max H. Bazerman and Ann E. Tenbrunsel, the authors of the new book Blind Spots: Why We Fail to Do What's Right and What to Do about It, have found that people have a tendency "to overlook the unethical behavior of others when it is not in their best interest to notice the infraction." They call this "motivated blindness."

In the context of local government ethics, motivated blindness can best be seen when local government attorneys are advising their "clients," that is, officials, especially top officials and local legislators, on ethics matters. Too often, they give officials the advice that is in their personal interest (that is, what will not hurt their personal reputation) rather than the advice that is in the public interest.

Blind Spots III — Ethics Training, Ethics Fading, and Ethical Reasoning
Robert Wechsler
Director of Research, City Ethics
Wed, 2011-04-06

"Most of us dramatically underestimate the degree to which our behavior is affected by incentives and other situational factors." This is one of the most important sentences in Blind Spots: Why We Fail to Do What's Right and What to Do about It, a new book by Max H. Bazerman and Ann E. Tenbrunsel (Princeton University Press).

Ethical Fading
This sentence is central to the authors' concept of "ethical fading." Ethical fading involves the elimination of the ethical dimension of a decision. Goals, rewards, informal pressures, even compliance systems effectively blind us to the ethical implications of what we do. The result is that we do not see our behavior as ethical, but as something else: acting for our agency, acting strategically, considering the financial costs and benefits, pushing our party's platform, doing what we are required to do by law, doing what it takes to look good.

Ethical fading is an important obstacle to acting ethically.

Blind Spots IV — Egocentrism
Robert Wechsler
Director of Research, City Ethics
Thu, 2011-04-07

Egocentrism (what they call the "egocentric bias") is at the heart of unethical behavior, in the government ethics sense. When the public interest conflicts with an offical's self-interest, that self-interest is what leads the official to deal irresponsibly with the conflict. It is the official's self-serving judgments that lead him to different conclusions than others have regarding what is a fair solution to a conflict situation.

Blind Spots V — Informal Norms
Robert Wechsler
Director of Research, City Ethics
Fri, 2011-04-08

Government ethics involves itself primarily with the formal norms set forth in ethics codes. But as the authors of the new book Blind Spots: Why We Fail to Do What's Right and What to Do about It (Princeton University Press), point out, "It is through informal mechanisms that employees learn the 'true values' of the organization."

Only when the informal and formal are the same, will the formal be truly effective.

When you do not hear complete and honest apologies, you probably have a poor ethics environment, that is, an organization with informal norms that put self-interest (that is, the true leaders' self-interest; these "true leaders" are not always the ostensible leaders) over the public interest.

Blind Spots VI — Psychological Cleansing and Obfuscation
Robert Wechsler
Director of Research, City Ethics
Sat, 2011-04-09

The denial of unethical behavior, which usually occurs long after the behavior itself, is usually the worst part of an ethics scandal, the adding of insult to injury. The public is faced with two possibilities when an official denies that he did something unethical. This dilemma is well described in Blind Spots: Why We Fail to Do What's Right and What to Do about It, a new book by Max H. Bazerman and Ann E. Tenbrunsel (Princeton University Press):

It is possible that the person doesn't actually believe he behaved ethically, but rather claims to be ethical to reduce the damages associated with his unethical actions. [Another] explanation is also the most troubling in terms of improving one's behavior. It is possible that the person inherently believes in his own ethicality, despite the evidence to the contrary.

Note that the authors say the second explanation is more troubling in terms of improving one's behavior, not what many of us would say: that the official who thinks so well of himself is simply in denial, detached from reality, caught up in a world of power and yes-men. When you believe you act ethically because you are an ethical person, you have no incentive to analyze situations for their ethical aspects or bring ethical reasoning into play.

Blind Spots VII — Indirect Blindness and Moral Compensation
Robert Wechsler
Director of Research, City Ethics
Sun, 2011-04-10

Indirect Blindness
The authors talk about a tendency they call "indirect blindness ... the tendency not to notice unethical actions when people do their dirty work through the behavior of others."

Even when data suggesting unethical intent is obvious, we still let those who behaved unethically off the hook. ... The public and the press too often fail to notice the dirty work that individuals and organizations perform through intermediaries. … By engaging in indirect action under predictable circumstances, decision makers trigger indirect blindness in the eyes of observers and thus are let off the hook for the harm they cause.

In government ethics, the public often recognizes that something is wrong, but they don't know whom to blame, whom to hold accountable.

Blind Spots VIII — How to Handle Our Blind Spots
Robert Wechsler
Director of Research, City Ethics
Mon, 2011-04-11

One solution is to align what they call our "want" and "should" selves, that is, our self-interested and our public-interested feelings, by becoming aware of our blind spots, that is, by recognizing our vulnerability to our own unconscious biases.

Another way to deal with our blind spots is training that helps us identify and correct the distorted feedback we give ourselves, emphasizing the psychological mechanisms that lead to inaccurate recollections and unethical behavior.

Apologies: Central to a City's Ethical Environment
Thu, 2006-07-06
Robert Wechsler
Director of Research
City Ethics, Inc.

"As canaries were to mines, apologies are to a municipality's ethical environment. If you don't see a good number of sincere apologies, then ethics and accountability are probably dead in your town."

"According to Aaron Lazare, in his excellent On Apology (Oxford University Press, 2004), an apology is "an encounter between two parties in which one party, the offender, acknowledges responsibility for an offense or grievance and expresses regret or remorse to a second party, the aggrieved." An apology can also include an explanation for the offense, an expression of shame or guilt, an expression of intention not to commit the offense again, and reparations."

"One reason apology is such a good sign of an ethical environment is that it requires just what good ethics requires: honesty, generosity, humility, courage, sacrifice, and commitment to preserving trust in government."

"And then there is the ever popular cover-up. It usually begins by ignoring a grievance, and then moves on to denying what happened and trying to demonize the grievant. Of course, cover-ups are always worse than the offenses, and if they come out, they become a big scandal, undermining public trust more than any other approach. Cover-ups are a bet that the offenders won't get caught. And most cover-ups stay under cover, but they use up a great deal of resources for a horrible cause."

"The failure to apologize has serious consequences. It makes people feel powerless and cynical, and it makes people believe that their values are different from those in government, that government cannot be trusted to hold up its side of the social contract, that in government there are no consequences for doing wrong. All of these feelings make people less likely to get involved in government matters. The failure to apologize fuels people's anger, making compromise more difficult."

Apology Revisited
Wed, 2007-03-28
Robert Wechsler
Director of Research
City Ethics, Inc.

"This is equally true of government officials. The coverup is worse than the crime. Everyone knows this, but so many officials believe they can get away with it if they make a big enough smokescreen. And often they do. But at what cost, to them and, most important, to the public? People are forgiving, but not when you refuse to respect them and recognize the harm you cause."

"Government officials too need to have full disclosure and complete transparency. It will dramatically lessen the number of ethical mistakes, cut corruption, and make the public feel more trust in their government."

Apology - The Canary in the Mine of Local Government Organizations
Tue, 2008-05-20
Robert Wechsler
Director of Research
City Ethics, Inc.

"The lack of true apology from members of a government organization is a dead canary in a mine. An organization without true apologies is one where officials put themselves ahead of the good of the community, where people think in terms of getting away with mistakes and misconduct. Such an organization is closed and without ethical leadership. It is an organization consisting of people who either do not respect the dignity of others, or are too afraid to speak up."

ADDENDUM:
Top Ten Ethics Films

Recommended Reading

KSBW: BREAKING NEWS: 'Rich Guillen Retires As Carmel City Administrator'

UPDATE: Rich Guillen Retires After Controversy
POSTED: 11:22 pm PST February 15, 2011
UPDATED: 11:23 pm PST February 15, 2011
Duration: 02:36

News anchor Erin Clark reported “Rich Guillen is gone.” Stephanie Chuang reported, taped public statements of Carmel residents, including Tony Bhutani, Roberta Miller, and spoke with Charlotte Townsend, Monte Miller, City Council Member Jason Burnett and former City Council Member Barbara Livingston. City Administrator Rich Guillen was absent; he texted Council Members Monday that he would be out-of-town through Thursday. Council Member Jason Burnett stated that he hopes the City will hire a temporary city administrator “immediately” and conduct a search for a permanent city administrator involving the community throughout the process.

KSBW: BREAKING NEWS: Rich Guillen Retires As Carmel City Administrator
POSTED: 5:54 pm PST February 15, 2011
UPDATED: 7:10 pm PST February 15, 2011
Duration: 1:45

Stephanie Chuang reported that the City Council unanimously voted to accept City Administrator Rich Guillen’s resignation. City Attorney Don Freeman stated that Rich Guillen will stay until replacement is hired or March 31, 2011, whichever occurs first. Guillen will receive six months severance pay and health benefits. City Council Member Jason Burnett stated that the City will start search for Guillen’s replacement immediately.

KION CENTRAL COAST NEWS: ‘Carmel City Administrator Retires’

UPDATE II: Community Relieved Over Retirement Of Administrator
Duration: 02:10

Marc Cota-Robles, Central Coast News, reported “He's out and it's the news that a lot of you waited months to hear.” “On Tuesday, the city announced Richard Guillen retired as City Administrator in Carmel." Azenith Smith spoke with City Council Member Jason Burnett, residents Carolyn Hardy and Charlotte Townsend.

Carmel City Administrator Retires
Updated: Feb 15, 2011 10:57 PM PST
Submitted by Azenith Smith, Central Coast News

UPDATE I: Carmel City Administrator Retires (Pre/During-Closed Session)
Duration: 2:10

Carmel City Administrator Retires (Post-Closed Session)
Duration: 1:15

Brooke Holmquist reported pre/during-closed session and post-closed session. Holmquist showed a "Fire Guillen NOW!" bumper sticker and spoke with resident Tony Bhutano (2:10 Video) and stated there was no comment from the mayor and read the City’s News Release (1:15 Video).

KION CENTRAL COAST NEWS reports that “After months of delaying a decision, Carmel City Council announced the City Administrator accused of harassment is retiring."

"Richard Guillen will no longer be employed with the city.”

Source: Carmel City Administrator Retires, KION CENTRAL COAST NEWS, Feb 15, 2011 6:19 PM PST

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

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

CARMEL-BY-THE-SEA CITY COUNCIL
Closed Session

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

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

I. Roll Call

II. Orders of Council

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

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

III. Announcements in Open Session (if any).

IV. Adjournment


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

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.

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.

City Attorney: 'at this time we have no public announcement'

ABSTRACT: As reported, City Attorney Don Freeman came out of closed session and stated, "at this time we have no public announcement."

Carmel City Council Stays Silent
KION CENTRAL COAST NEWS
Sep 23

Pop Up Video: “Unbelievable” Carmel City Council Not Talking About Decision
KION CENTRAL COAST NEWS
Sep 23
Duration: 3:17
Brooke Holmquist, Reporter

Video: Mystery Surrounds Carmel City Administrator Status
September 23
Duration: 2:43
KSBW, May Chow, Reporter

Carmel City Carmel City Council Not Talking About Decision
KION CENTRAL COAST NEWS
Sep 23, 2010

Decision Expected in Carmel Sexual Harassment Case
KION CENTRAL COAST NEWS
Sep 23, 2010

CITY COUNCIL: Another Closed Session on Sexual Harassment, Discrimination and Retaliation Lawsuit & City Administrator Rich Guillen

ABSTRACT: KION Central Coast News reported another City Council Closed Session is scheduled for Thursday, September 23, 2010 @ 2:00 P.M. Contact THE MAYOR & CITY COUNCIL MEMBERS information is provided. And links to past videos from KION are provided in the ADDENDUM.

Pop Up Video: New Information on Sexual Harassment Issue in Carmel
Duration: 4:25

Three Hour Carmel City Council Mtg: No Decision
Sep 21, 2010 11:25 PM PDT

WHO: Mayor and City Council Members

WHAT: City Council Closed Session

WHEN: Thursday, September 23, 2010 @ 2:00 P.M.

WHERE: City Hall
E/s Monte Verde St between Ocean Av. & 7th Av.
Carmel-by-the-Sea, CA.

WHY: Discussion on the Jane Kingsley Miller lawsuit, including City Administrator Rich Guillen

CONTACT THE MAYOR & CITY COUNCIL MEMBERS:
Sue McCloud, Mayor of Carmel-by-the-Sea
Elected Mayor: April 2000
Re-elected Mayor: 2002, 2004, 2006, 2008 & 2010
Term Expires: April 2012

Contact Information:
P.O. Box M-1
Carmel, CA 93921
City Hall Tel: (831) 620-2000
City Hall Fax: (831) 620-2004
Home Tel: (831) 624-7310
E-Mail: cloud93921@aol.com

Paula Hazdovac, Vice Mayor, Council Member, Carmel-by-the-Sea
Elected Council Member: April 1994
Re-elected for 1998, 2002, 2006, 2010
Term Expires: April 2014

Contact Information:
P.O. Box 3164
Carmel, CA 93921
Tel: (831) 620-2000 (City Hall)
Tel: (831) 625-2480 (Home)
E-Mail: pjhaz@hotmail.com

Jason Burnett, Council Member, Carmel-by-the-Sea
Sworn in as Council Member: April 2010
Elected in 2010
Term Expires: April 2014

Contact Information:
P.O. Box 5715
Carmel-by-the-Sea, CA 93921
Tel: 831-620-2000 (City Hall)
Tel: 831-624-3252 (Home)
Email: Jason@BurnettforCarmel.com

Karen Sharp, Council Member, Carmel-by-the-Sea
Appointed Council Member: 2007
Re-Elected 2008
Term Expires: April 2012

Contact Information:
P.O. Box 2526
Carmel-by-the-Sea, CA 93921
Tel: (831) 620-2000 (City Hall)
Tel: (831 624-5727 (Home)
E-Mail: karensharp@yahoo.com

Ken Talmage, Council Member, Carmel-by-the-Sea
Sworn in as Council Member: December 2006
Re-elected: 2008
Term Expires: April 2012

Contact Information:
P.O. Box 1526
Carmel, CA 93921
Tel: (831) 620-2000 (City Hall)
Tel: (831) 624-2462 (Home)
E-Mail: kktalm@aol.com

ADDENDUM:
Past Videos:
Carmel Sexual Harassment Meeting Held Tonight Pop Up Video – 21 September 2010
Reporter Brooke Holmquist
Duration: 3:11

Carmel City Council Discusses Sexual Harassment Allegations – August 2010
Reporter Susanne Brunner
Duration: 2:45
City Takes No Action

The Writing on the (City Hall) Wall
Carmel City Council hints that a decision on Guillen is close.
By Robin Urevich
SEPTEMBER 23, 2010

CITY COUNCIL: Closed Session on Harassment, Discrimination and Retaliation Lawsuit & City Administrator Rich Guillen

WHO: Mayor and City Council Members

WHAT: City Council Closed Session

WHEN: Tuesday, September 21, 2010 @ 5:00 P.M.

WHERE: City Hall
E/s Monte Verde St between Ocean Av. & 7th Av.
Carmel-by-the-Sea, CA.

WHY: Discussion on the Jane Kingsley Miller lawsuit, including City Administrator Rich Guillen

CONTACT THE MAYOR & CITY COUNCIL MEMBERS:
Sue McCloud, Mayor of Carmel-by-the-Sea
Elected Mayor: April 2000
Re-elected Mayor: 2002, 2004, 2006, 2008 & 2010
Term Expires: April 2012

Contact Information:
P.O. Box M-1
Carmel, CA 93921
City Hall Tel: (831) 620-2000
City Hall Fax: (831) 620-2004
Home Tel: (831) 624-7310
E-Mail: cloud93921@aol.com

Paula Hazdovac, Vice Mayor, Council Member, Carmel-by-the-Sea
Elected Council Member: April 1994
Re-elected for 1998, 2002, 2006, 2010
Term Expires: April 2014

Contact Information:
P.O. Box 3164
Carmel, CA 93921
Tel: (831) 620-2000 (City Hall)
Tel: (831) 625-2480 (Home)
E-Mail: pjhaz@hotmail.com

Jason Burnett, Council Member, Carmel-by-the-Sea
Sworn in as Council Member: April 2010
Elected in 2010
Term Expires: April 2014

Contact Information:
P.O. Box 5715
Carmel-by-the-Sea, CA 93921
Tel: 831-620-2000 (City Hall)
Tel: 831-624-3252 (Home)
Email: Jason@BurnettforCarmel.com

Karen Sharp, Council Member, Carmel-by-the-Sea
Appointed Council Member: 2007
Re-Elected 2008
Term Expires: April 2012

Contact Information:
P.O. Box 2526
Carmel-by-the-Sea, CA 93921
Tel: (831) 620-2000 (City Hall)
Tel: (831 624-5727 (Home)
E-Mail: karensharp@yahoo.com

Ken Talmage, Council Member, Carmel-by-the-Sea
Sworn in as Council Member: December 2006
Re-elected: 2008
Term Expires: April 2012

Contact Information:
P.O. Box 1526
Carmel, CA 93921
Tel: (831) 620-2000 (City Hall)
Tel: (831) 624-2462 (Home)
E-Mail: kktalm@aol.com

CITY COUNCIL CLOSED SESSION: 'No Action Was Taken'

ABSTRACT: After the City Council meet for about three hours in closed session yesterday to discuss a "perforamce evaluation" of City Administrator Rich Guillen, City Attorney Don Freeman announced that “no action was taken.” However, "the city council will continue to discuss the matter next month," according to the news account. Mayor Sue McCloud declined comment when asked by Central Coast News Reporter Susanne Brunner.

Pop Up Video: Carmel City Council Discusses Sexual Harassment Allegations
Duration: 2:45

Carmel City Council Takes No Action Against City Administrator
KION CENTRAL COAST NEWS, August 24, 2010

NOTES:
Former City Council Member Mike Brown, Carmel resident Joyce Stevens and 2010 mayoral candidate Adam Moniz appear on the video with comments.

Most people who signed a petition addressed to the City Council of Carmel-by-the-Sea hoped for the removal of the city administrator, according to the news account.

ADDENDUM:
Carmel evaluates City Administrator Rich Guillen
Closed-door session to resume in September
By LARRY PARSONS Herald Staff Writer, 08/26/2010

Guillen’s performance discussed behind closed doors, challenged outside them.
By Robin Urevich, MONTEREY COUNTY WEEKLY, AUGUST 26, 2010

Adam Moniz: ‘To all those city employees who have been forced to work in a hostile workplace environment, you deserve better.’

ABSTRACT: During Public Appearances at the 3 August 2010 City Council meeting, former mayoral candidate Adam Moniz addressed the public on the subject of harassment at City Hall. Moniz’s remarks are transcribed. A COMMENT is made.

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

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

“I’m Adam Moniz and I’m a resident of Carmel-by-the-Sea. Indeed, you are running the meeting, just barely. I would like to note there is no such in the Carmel Code which prohibits anyone of you from doing whatever you like in terms of rounds of applause. We have to make sure we don’t allow our elected officials to think that they have more power than they really do.”

“I ran against Sue McCloud for mayor of Carmel a few months ago. During the April 2010 election, some candidates seeking re-election made what we all now know were undeniably false, or at absolute best, utterly misleading statements to Carmel voters regarding the validity of claims of harassment in City Hall. The pertinent facts can be boiled down to this: There was harassment. And that harassment was in fact tolerated. The question is not if any of you directly knew or actually knew; it’s that you should have known. It’s not acceptable to simply look the other way or choose to put your head in the sand. For elected officials are rightfully held to a higher standard by the public they are supposed to be in office to serve.”

“If any of you think that in voting behind closed doors to pay out over $600,000 you have somehow resolved in full this deeply troubling matter, your constituents have told you now, loud and clear, that you are mistaken. It’s time for accountability.”

“To all those city employees who have been forced to work in a hostile workplace environment, you deserve better. I am so deeply sorry for what you and your families have been forced to go through and for you and your families are still being forced to go through.”

“While this particular litigation may no longer be pending in a court of law, it is still very much alive and active in the court of public opinion And fortunately for all of us, the entirely of the jury, are the voters of Carmel-by-the-Sea. So, to quote Mayor McCloud, stay tuned.”

(Archived Videos, August 03, 2010, 32:05 - 34:10)

COMMENT:
• Adam Moniz has demonstrated with these remarks alone that he is more worthy and deserving of being mayor of Carmel-by-the-Sea than the current mayor.

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

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

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

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

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

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

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

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


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

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

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

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

EVIDENCE:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘MINUTES’ on Four Noteworthy 3 August 2010 City Council Agenda Items

“MINUTES”
CITY COUNCIL REGULAR MEETING
CITY OF CARMEL-BY-THE-SEA
Tuesday, August 3, 2010

Archived video streaming

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

VI. Public Appearances

Mayor McCloud opened the meeting to public comment.

Kathy Frederickson, a retired federal civil service employee, stated during her career she had required training on sexual harassment, et cetera. She asked City Hall to defend itself and asked what the city council is doing to create “an acceptable workplace environment.”

Barbara Livingston commended City Council Member Jason Burnett for calling for a closed session for discussion of the future management of our village and urged Mayor McCloud to set a date certain for that closed session meeting.

Carolyn Hardy voiced her and her husband’s "concern, frustration and anger" over the circumstances of the Jane Miller lawsuit involving sexual harassment. She stated that the liability still remains and therefore it is time for a change at City Hall. Specifically, "it is time for Rich Guillen to leave either by departure or removal." "It is incumbent on the council to restore integrity and dignity to City Hall by removing the offender whose actions have brought dishonor to Carmel."

Adam Moniz, 2010 mayoral candidate, stated that some candidates made "false" or "utterly misleading" statements about the validity of claims of sexual harassment at City Hall. He stated there was harassment and it was tolerated and the council members should have known. Further, "it’s time for accountability." "Stay tuned."

Allison Schilling stated that it was clear to her that many in Carmel-by-the-Sea and in the chamber do not understand the nature of sexual harassment; that is, it is always incumbent on the person with power to do the right thing. She urged all Carmelites to undertake sexual harassment training, including the city council.

Barbara Brooks, a former City Council Member, stated she had known attorney Michael Stamp for more than 20 years and knew him to be an ethical attorney. Further, she knew Stamp would not take a frivolous case and he would not take a case he did not believe represented a genuine need for redress. She stated that she wanted a city government that she can trust again where officials behave ethically. She requested that the city council do something to repair the "terrible damage that has happened to our city."

Skip Lloyd stated that there was a need for an "independent investigation" of the City’s personnel actions in the Jane Miller case by an outside agency, including a review of past settlements which amounted to $500,000 in the aggregate for four city employees who made similar claims of hostile workplace environment and being forced into early retirement, according to a judge. He stated that insurance companies do not pay $600,000 in settlement monies if there is no merit to a claim.

Mayor McCloud closed the meeting to public comment.

City Attorney Don Freeman restated the City’s statement regarding the settlement agreement. He stated that a review of the City’s personnel policy, including sexual harassment policy was in process by a third party.

City Council Member Jason Burnett reiterated his July 14 request for a closed session to discuss a personnel issue and September agenda item about City policies.

VIII. Public Hearings

B. Consideration of an encroachment permit application for the construction of a driveway at the end of Lopez Avenue and review of a geotechnical report for Second Avenue.

Marc Wiener, Assistant Planner, presented the staff report and power point presentation, including photos, site plan and Options depictions. With regard to the re-opening of Second Avenue, it is estimated it would cost $300,000 - $500,000 to stabilize the avenue, according to the geotechnical study. Second Avenue is currently used as a pedestrian pathway and most residents do not want the avenue re-opened to traffic. The Planning Commission recommended Option “B,” a driveway at the end of Lopez Avenue, on the east side of the street.

City Council Member Ken Talmage asked questions about the stability of Second Av. which were answered by Mr. Kasunich, the geotechnical engineer.

The applicants, including Mr. Schultz and Zane Blackmer, addressed the council.

Mayor McCloud opened the meeting to public comment.

Ron Wormser, a Lopez Av. neighbor, spoke in support of Option “C” and against options involving construction of a driveway at the end of Lopez Av.

Marian Wormser read letters from two other neighbors, Harper and Hibbard, both against the construction of a driveway at the end of Lopez Av. and supportive of Option “C," paving the existing driveway from Second Av., without opening Second Av., to avoid traffic and safety problems.

A Second Av. neighbor expressed support for a driveway from Lopez Av.

Mayor McCloud closed the meeting to public comment.

Zane Blackmer addressed the council.

Marc Wiener, Assistant Planner, answered questions and/or heard comments from Mayor Sue McCloud, City Council Members Jason Burnett, Paula Hazdovac, Karen Sharp and Ken Talmage.

Council Member BURNETT moved to uphold the decision of the Planning Commission and approve Option “B,” encroachment permit application for the construction of a driveway at the end of Lopez Avenue, with special conditions, seconded by Council Member SHARP and carried by the following roll call vote:

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

ADDENDUM:
Option “B” Driveway on East Side of Lopez Avenue: Option “B” places the driveway on the east side of Lopez Avenue and covers an area of approximately 404 square feet in the public right-of-way. The proposed driveway is 28 feet long with an outer wall that is eight to nine feet tall. The driveway has a slope of approximately 12-13% and also serves as a walkway.

The proposed driveway requires the removal of three non-significant trees located on the property. No trees would be removed from the public right-of way.

Planning Commission Recommendation: The Planning Commission unanimously recommends that the City Council approve Option “B.” The primary reason for supporting a driveway at the end of Lopez Avenue, as opposed to maintaining the driveway at its existing location, is concern over the long-term stability of Second Avenue. The Commission raised the issue that approving a driveway on Second Avenue could potentially commit the City to future repairs and maintenance of this road for the benefit of only one property owner.

Option “C” Re-design and Pave the Existing Driveway on Second Avenue: Vehicle access to the property is provided by a steeply sloped dirt driveway located on Second Avenue.

X. Resolutions
A. Consideration of a Resolution authorizing the City Administrator to enter into a financial assistance agreement with the State of California Water Board for the Carmel Bay Areas of Special Biological Significance (ASBS) project.

Bob Jaques, City’s consulting engineering, presented an overview.

The State is currently finalizing requirements for stormwater outflows into ASBS at end of 2010 or early 2011. The City’s eighteen stormwater outflows are subject to the requirements. Since only discharges will be allowed during wet weather, the City proposes the building of a diversion system to eliminate discharges during summer months. The diversion system temporarily plugs outflows during the summer by diverting water to sanitary sewer or vacuuming and trucking to corporation yard to sanitary sewer or pumping to landscape area. It is anticipated that design will occur in 2010, construction in 2011 and completed in 2012. The City anticipates receipt of a state grant of $2.5 million, funded by Proposition 84.

Mayor McCloud opened and closed the meeting to public comment.

Council Member TALMAGE moved to adopt a Resolution authorizing the City Administrator to enter into a financial assistance agreement with the State of California Water Board for the Carmel Bay Areas of Special Biological Significance (ASBS) project, 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

XI. Orders of Council
A. Receive report and provide policy direction on options for the 2012 Municipal Election.

Mayor Sue McCloud announced the agenda item will by on next month’s agenda due to the absence on Heidi Burch at a conference this week.

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.