When Sue McCloud was Mayor of the City of Carmel-by-the-Sea the City Negotiated Settlements to Five City Employees for Claims of Employment Discrimination, Harassment, Hostile Workplace Environment and Forced "Early Retirement" Against the City for over $1,100,000.00

In the DECISION of Mara-Louise Anzalone, Administrative Law Judge, an email composed by Sue McCloud states, as follows:

 [t]here were significant issues with [Hurchalla] that arose prior to the signing of our latest agreement, including abusive/harassing conduct and bullying of [SCC] employees as well as client complaints. As an example, I am attaching a letter sent to him from Christine Sandin, Executive Director, in April 2017.15  All of this resulted in him being placed on a “do not dispatch” list. While we have a new subcontracting agreement in place with Local 611, SCC is mandated under law to maintain a safe and healthy workplace, and a workplace free from harassment and abusive conduct, as well as remain a favored venue for our clients. Hence our  position remains the same; namely, that Mr. Hurchalla continue to not be dispatched to our venue.

15 No attachment to this email was introduced into the record, but McCloud was presumably referring to Sandin’s April 11, 2017 “Memorandum for Record” addressed to Hurchalla regarding his alleged insubordination on April 4, 2017. See Jt. Exh. 3 at 2.)

When Sue McCloud was Mayor of the City of Carmel-by-the-Sea…

•  From January 2001 to 2003, Guillen forced out several long-time City directors and employees, including the Assistant City Administrator, Community and Cultural Director, Public Works Director, and Financial Services Coordinator. Guillen negotiated with those employees, and combined the negotiations with threats to terminate certain of those employees, all of whom were significantly over the age of 40.
• Between 2003-2008, attorney Michael Stamp represented four city employees on claims of employment discrimination, harassment, hostile workplace environment and forced "early retirement" against the City. The negotiated compensation awarded in the four settlements exceeded $500,000.
• In 2008, Stamp began representing a fifth employee, Human Resources Manager Jane Miller, in her claims of retaliation, gender-based discrimination and harassment, and age discrimination against the City and City Administrator Richard Guillen. In May 2008, Stamp wrote to the City and raised the claims directly with the Mayor, City Council, City Administrator and City Attorney.  The matter settled for $600,000 in 2010.
• City's Lack of Response to Ms. Miller's Complaint   In a letter of May 20, 2008, on behalf of Ms. Miller, we provided notice to the Mayor of Ms. Miller's claims in regard to Richard Guillen. The Mayor never responded.

REFERENCE:
JANE KINGSLEY MILLER, Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, and DOES 1 through 100, Defendants.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
Case No. M99513

Assistant City Administrator/City Clerk Heidi Burch: The Case for Dismissal from City Service

ABSTRACT: Assistant City Administrator/City Clerk Heidi Burch’s Record of Employment with the City of Carmel-by-the-Sea, as follows:

• Burch hired as City Clerk with no public sector or City Clerk experience by City Administrator Rich Guillen, August 2005.
• Burch received promotions, unprecedented pay raises, benefits and higher “Job Titles,” including Assistant City Administrator, by City Administrator Rich Guillen based on “favoritism,” not merit.
• City’s Motion to disqualify plaintiff Jane Miller’s counsel attorney Michael Stamp was based solely on the Burch Declaration; the “Burch Declaration” was “materially false, stretched and exaggerated the truth, and grossly mischaracterized documents.”  Note:  After the Honorable Larry E. Hayes, Judge of the Superior Court, denied the City’s Motion to Disqualify Plaintiff’s Counsel on grounds of Lack of a Substantial Relationship and Unjustified Delay, the City settled the case for $600,000 plus over $200,000 in attorney fees.
• “Jane Miller received two direct communications from Heidi Burch, where Ms. Burch makes certain demands and representations on behalf of the City, some of which were retaliatory.”

Based on Assistant City Administrator/City Clerk Heidi Burch’s aforementioned Record of Employment with the City of Carmel-by-the-Sea, including unprofessional and inappropriate conduct, her previous relationship with Liebert Cassidy Whitmore and actions in the Miller, Jane Kingsley v. City of Carmel-by-the-Sea case, her more recent contact with Liebert Cassidy Whitmore for the purpose of using taxpayer monies to answer a resident’s request for check itemization information which had routinely been accomplished by Deputy City Clerk Molly Laughlin and her violations of the City’s Code of Ethics (“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.”), the City Administrator should discharge or remove Heidi Burch from City service with the support of the mayor and city council members; to not dismiss her from City employment signals that the City, particularly the mayor and city council members, rather protect an unethical and incompetent city employee than act with integrity in the best interest of the public.  Supporting documents for background purposes are embedded, including COMPLAINT, Letter of Jane Miller to Mayor and City Council dated October 23, 2008, LAW OFFICES OF MICHAEL W. STAMP letter dated January 2009, FILED UNDER SEAL: MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO CITY'S IN CAMERA DOCUMENTS and  PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO CITY'S BRIEFING, with EXCERPTS HIGHLIGHTS.

 

COMPLAINT

EXCERPTS HIGHLIGHTS

(Note: Female B believed to be Heidi Burch)

Guillen was involved in an inappropriately close relationship in the workplace with Female B, who had been hired by Guillen in 2005 and who had received a favorable and non-standard pay raise from Guillen within the first six months of her employment. By March 2007, Guillen had "reclassified" Female B's position and provided her with favorable salary, benefits, and working conditions, including responsibility for actions that she had never performed previously and for which she needed training to perform. Female B's work activities involved spending private time with Guillen, going to meetings with Guillen, taking steps to deceive other employees about her activities. and jointly undertaking City tasks with Guillen.

In May 2007, Guillen created a new job title for Female B. via the draft City budget, giving her power and responsibility not approved by the Human Resources Manager and not approved at the time by the City Council. Contrary to standard City policy, Guillen and Female B did not create a job description and Female B was not given a performance evaluation. Plaintiff, the Human Resources Manager, was excluded from personnel/human resources decisions involving Female 8, because Plaintiff had objected to Guillen's similar favoritism toward Female A. Female B's salary had been increased by about 70% since 2005, far above that for other employees and positions of a similar nature in the City, including Plaintiff's.

In July 2007, Guillen made sure that Female B was officially reclassified with a 19% raise.

In October 2007, Plaintiff asked for routine authorization to use leave time to care for a family member. Guillen said he approved the leave in discussions directly with Plaintiff. Shortly thereafter, Female B challenged Plaintiffs leave, singling out Plaintiff. City staff then contacted Attorney O'Neill in an effort by Female B to challenge Plaintiffs routine entitlement to leave and embarrass or humiliate Plaintiff. In December 2007, Female B challenged Plaintiffs right to a small reimbursement under a benefit provision that had been in place for years, again singling out Plaintiff. Plaintiff was advised by the City that Guillen had been the instigator of the challenge, and Plaintiff reasonably understood that Female B was acting with the consent of Guillen in both cases. Plaintiff was being ostracized and isolated by Guillen, while he continued to undercut her role in the office.

In March 2008, Guillen gave Female B another 5% raise. Guillen claimed that Female B should get another raise because she had been successfully performing her management job, which was not a standard City rationale for such raises.

Jane Miller

October 23, 2008

Confidential

Mayor and City Council

City of Carmel-by-the-Sea

City Hall

Carmel-by-the-Sea, CA 93921

Re: My Employment with the City of Carmel-by-the-Sea

EXCERPTS HIGHLIGHTS

Guillen and Heidi Burch are now involved in a relationship that is inappropriate for the work place. For more than a year before Guillen told me that he was eliminating my position for budgetary reasons, Guillen and Heidi Burch had almost daily meetings behind closed doors and went to lunch together on a daily basis. It's been observed by me and several other staff members that Guillen and Heidi often try to be secretive about their time together by coming and going out of separate doors at City Hall, but then joining up in the parking lot. They have gone together to functions outside the City, sometimes in circumstances that bring into question their professionalism and relationship.

Guillen hired Heidi on August 1, 2005. Heidi had a good education, but no public sector or City Clerk experience. Her starting salary was $5,379/rnonth. In February 2006, after six months on the job, Heidi received a step increase from step 2 to 3 which was equal to 5% increase in salary.

By March 2007, Heidi was unofficially "reclassified" by Guillen to City Clerk/Deputy City Administrator for taking on more of Guillen's responsibilities. However, Guillen and Heidi continued to participate in most City Administrator functions jointly, rather than independently. In July 2007, Heidi was officially reclassified via the budget documents as City Clerk/Deputy City Administrator at a salary that was 19% higher. Later and prior to the new budget of 2008/09, without Council action, Guillen and Heidi decided that her title should be Assistant City Administrator/City Clerk. When I left in May 2008, Heidi had not been given a recent performance evaluation on the new job duties she had been assigned and no new job description had been created to categorize her duties. Her monthly salary in March 2008 was $9,125/month.

Guillen has made bad decisions regarding salaries and work responsibility based on favoritism that has not only created a discriminatory working environment but also has drained away City funds. The unprecedented raises, benefits and higher "Job Titles" he gave to Christie and Heidi were decisions that were not supported in the budget or by their qualifications. Other than with Guillen's favorite female employees, Carmel-by-the-Sea has been trying to be fiscally conservative with employees based upon the economy of the past several years. (This fact is significantly obvious in the City's fiscal policy used in labor negotiations with LIUNA, Police and Fire Associations.) Guillen did not give George Rawson, Public Safety Director, a comparable increase since George's hire date, in spite of the fact that George took on significant additional responsibilities for the oversight of the Fire Department for Carmel several years ago. (When George's salary was finally increased to reflect his additional responsibilities, it was not made retroactive to the date he took over the Fire Department several years earlier.) The numbers are clear:

• Since 2005, Guillen increased Heidi Burch's salary by about 70%.

• Since 2001, Guillen increased George Rawson's salary by about 25-30%.

• Since 2004, Guillen increased my salary by about 9% (5% of which was for a step increase from 4th to 5th.)

Several other incidents made it apparent that I had lost favor with Guillen. Guillen started checking up on me in odd ways, such as having another staff person call our labor attorneys Liebert Cassidy to ask if it was appropriate for me to take FMLA time to take care of my ailing father. Guillen never questioned me directly about it. I thought it was weird that he would ask another employee this question about me, but not even bring it up to me. It appears that Guillen took this action after Heidi had tried to field some question that came in for me when I was gone for the last hour of the day (to leave work and visit my father in Salinas) and she didn't have the answers. In the final analysis, I didn't use more than approximately 40 hours of sick leave (FMLA) in order to attend to my ailing father. He died on December 16, 2007.

Another situation where I felt I was being singled out for some weird reason was when I put in for a reimbursement for my annual physical exam costs not otherwise covered by insurance. This is a benefit of management. Heidi went to another employee and stated that Guillen wasn't sure that I was eligible for this benefit, in spite of the fact that it had always been in our Confidential MOU and was an ongoing practice.

Longtime Executive Assistant Sandy Farrell, recently forced from her job by Guillen, has observed Guillen's actions, including his obvious favoritism toward Christie and Heidi. Earlier this year, Guillen hired a new administrative staff person named Molly Laughlin. Molly Laughlin, an assistant to John Miller, Recreation Director for the City of Pacific Grove (and Christie Miller's husband), had recently been laid off from the City of Pacific Grove. Although I was the City's Human Resources Manager, Guillen did not involve me in Molly's hiring process, except to do the usual pre-employment requirements of a fingerprint background and pre-employment exam, after he and Heidi had interviewed her and made the decision to hire her. There were no specific funds in the 2007-08 budget to support the expense of hiring Molly.

From the information available to me now, I can see that Guillen's decision to eliminate my position is the result of a number of factors relating to gender and age. They include my not having acquiesced to his implicit suggestions to get together; my age itself; Guillen's own reaction to his years of favoritism and his relationships at work; and Guillen's unease with my professionally questioning his efforts to reward Christie/Heidi in ways that showed loyalty to these two women and not to the taxpayers, the public, or the City.

 

LAW OFFICES OF MICHAEL W. STAMP

479 Pacific Street, Suite 1

Monterey, California 93940

January 12, 2009

Richard C. Bolanos

Liebert Cassidy Whitmore

Re: Jane Miller and City of Carmel-by-the-Sea

EXCERPTS HIGHLIGHTS

At the same time, my client. Jane Miller, has received two direct communications from Heidi Burch, where Ms. Burch makes certain demands and representations on behalf of the City, some of which are retaliatory.

As for the direct contact with Ms. Miller by Ms. Burch, I do not understand what the City hopes to accomplish with it. The evidence is overwhelming that Ms. Burch has been the beneficiary of Mr. Guillen's actions, and that Ms. Miller has made claims about that favoritism and about the role of Ms. Burch. Nevertheless, Ms. Burch has been authorized by the City to act on behalf of the City in regard to Ms. Miller, to bypass Ms. Miller's legal counsel, and to communicate directly with a represented party. It is hard to imagine a more inappropriate person to be designated to give orders and impose deadlines on Ms. Miller. Once more, as I did with Mr. Guillen's attempt to intimidate Ms. Miller back in May, I ask that the City not contact Ms. Miller directly. also ask that Ms. Burch stop communicating directly with Ms. Miller.

 

FILED UNDER SEAL:

MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO

CITY'S IN CAMERA DOCUMENTS

EXCERPTS HIGHLIGHTS

The City's motion to disqualify opposing counsel, Michael W. Stamp, is dated 3 September 1, 2009. The City's sole factual basis for the City's allegations about the nature and extent of the former representations is the August 26, 2009 Declaration of Heidi Burch.

Ms. Burch inaccurately describes each matter, as the records show.

BURCH CLAIM NO.1.

As ICR pages 22 through 25 show, Mr. Stamp in 1965 did not address the issues in the way that Ms. Burch describes them in her Declaration.

BURCH CLAIM NO. 2.

BURCH CLAIM NO. 3.

Ms. Burch misstates the issue and the context of the cited material.

BURCH CLAIM NO. 4.

Ms. Burch misdescribes and distorts the 1987 documents in a troubling effort by the City to link them to the "personal relationship" of Mr. Guillen and Ms. Burch and of Mr. Guillen and Ms. Christie Miller in the current case

BURCH CLAIM NO. 5.

Ms. Burch materially misstates the contents of the document.

BURCH CLAIM NO. 6.

BURCH CLAIM NO. 7.

Ms. Burch's sole attempt to link the Miner matter to the current case is a misleading claim that Mr. Miner's matter “included issues related to medical leave.”

BURCH CLAIM NO. 8.

Despite Ms. Burch's effort in her Declaration to link Mr. Willett's knee injury to the current Miller case, there is no linkage, much less materiality… The exaggeration by Ms. Burch is misleading.

 ..  

PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO CITY'S BRIEFING

EXCERPTS HIGHLIGHTS

The City's Showing - the Burch Declaration.

In filing this motion on September 1, 2009, the City stated under .penalty of perjury that City Clerk Heidi Burch had accurately summarized the records that the City was relying upon for its claim of a substantial relationship between a former representation of the City and the Jane Miller case. The Burch declaration was the factual basis for the City's motion.

At that time, Miller's counsel demonstrated that Burch's declaration supposedly summarizing the documents was materially false, stretched and exaggerated the truth, and grossly mischaracterized documents in an effort to fit them into the City's contention that there was an actual conflict with the Miller case.

In the City's most recent response filed November 17, the City makes no effort to correct the record, explain the Burch missteps, or show that the City did not in fact intend to mislead the Court and opposing counsel.

ADDENDUM:

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).

CITY’S REVISED HARASSMENT PREVENTION POLICY: ‘Designated HR Manager’ Heidi Burch, Assistant City Administrator/City Clerk

ABSTRACT: The conduct of the City Council (Mayor Sue McCloud, City Council Members Jason Burnett, Paula Hazdovac, Karen Sharp and Ken Talmage), City Administrator Jason Stilwell and Assistant City Administrator/City Clerk Heidi Burch is presented in the context of the City Council’s unanimous vote to adopt the City’s revised, updated Harassment Prevention Policy at the 7 February 2012 City Council meeting. Since the City does have an Administrative Services Director, the “designated Human Resources Manager” (HR Manager) to implement the Policy was identified as Heidi Burch, Assistant City Administrator/City Clerk. An email from a Carmelite was subsequently sent to City Administrator Jason Stilwell; the email is reproduced. City Administrator Stilwell did not respond to the email, but previously claimed that he has “a strong moral compass” and is not “driven by situational ethics.” Pertinent comments on the new city administrator by a noted ethicist are quoted. Selected excerpts from former Human Resources Manager Jane Miller’s Monterey County Superior Court file are complied involving Assistant City Administrator/City Clerk Heidi Burch’s record of conduct. One of the excerpts states “The evidence is overwhelming that Ms. Burch has been the beneficiary of Mr. Guillen's actions, and that Ms. Miller has made claims about that favoritism and about the role of Ms. Burch. Nevertheless, Ms. Burch has been authorized by the City to act on behalf of the City in regard to Ms. Miller, to bypass Ms. Miller's legal counsel, and to communicate directly with a represented party. It is hard to imagine a more inappropriate person to be designated to give orders and impose deadlines on Ms. Miller.” Similarly and significantly, it is hard to imagine a more inappropriate person than Heidi Burch being designated by the City Council to act as HR Manager in charge of implementing the City’s Harassment Prevention Policy. Michael Stamp, attorney representing Jane Miller, wrote in a letter to the editor (The Carmel Pine Cone, April 22, 2011) “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.” It is also no way to run a city to have the new city administrator not recognize that his top priority is to restore public trust in Carmel’s city government. And it is also no way to run a city to have the mayor and city council members refuse to acknowledge and explain settlements totaling in excess of $1,000,000 to city employees for claims of “hostile work environment,” Sex-Based Discrimination in Employment, Age-Based Discrimination in Employment, Sexual Harassment in Employment, Failure to Take All Reasonable Steps to Prevent Sexual Harassment from Occurring, Failure to Take All Reasonable Steps to Prevent Discrimination and Harassment Based on Age from Occurring and Retaliation in Violation of Law.

EMAIL TO CITY ADMINISTRATOR JASON STILWELL FROM A CARMELITE
Sent: February 13, 2012

At the 7 February 2012 City Council meeting, the City Council unanimously adopted the City’s revised Harassment Prevention Policy. Prior to that vote, the designated HR Manager was identified as Heidi Burch, Assistant City Administrator/City Clerk.

Questions:
1. Please explain the rationale for designating Heidi Burch the HR Manager given her past record of having an “inappropriate,” “unprofessional” relationship in the workplace based on “favoritism” which resulted in preferential treatment, non-standard pay raises and promotions based on her relationship with the previous city administrator and her record of active involvement in City Hall’s culture of harassment, discrimination and retaliation.
2. Please explain how designating Heidi Burch the HR Manager in the context of implementing the Harassment Prevention Policy is not a classic case of situational ethics.

As the aforementioned questions are not rhetorical, I would appreciate thoughtful and honest responses.


COMMENTS ON NEW CITY ADMINISTRATOR BY NOTED ETHICIST

"Democratic accountability is based on the explanation of decisions by those who represent us and run our community...If the new city administrator won't fully answer that question, it could only be because (1) he is afraid of losing his position if he does (situational ethics) or (2) he does not believe in accountability. "That's all in the past," is not a professional or responsible explanation."


SELECTED EXCERPTS FROM JANE MILLER’S COURT FILE
(References to Assistant City Administrator/City Clerk Heidi Burch):

Note: “Female B” is believed to be Heidi Burch, Assistant City Administrator/City Clerk

By May 2007, the talk at City Hall increased about Guillen's relationship with Female A and, recently, with another female employee. Female B. The talk was open and widespread and was known to City employees and others, including the Mayor and City Attorney. Guillen at that time knew that the comments were being made about him and Female A and Female B. Guillen knew that the comments were adversely affecting the workplace, particularly in regard to women in the workplace, for whom the relationships with Female A and Female B were perceived as inappropriate, unprofessional and based on favoritism.

Guillen was involved in an inappropriately close relationship in the workplace with Female B, who had been hired by Guillen in 2005 and who had received a favorable and non-standard pay raise from Guillen within the first six months of her employment. By March 2007, Guillen had "reclassified" Female B's position and provided her with favorable salary, benefits, and working conditions, including responsibility for actions that she had never performed previously and for which she needed training to perform. Female B's work activities involved spending private time with Guillen, going to meetings with Guillen, taking steps to deceive other employees about her activities. and jointly undertaking City tasks with Guillen.

In May 2007, Guillen created a new job title for Female B. via the draft City budget, giving her power and responsibility not approved by the Human Resources Manager and not approved at the time by the City Council. Contrary to standard City policy, Guillen and Female 8 did not create a job description and Female B was not given a performance evaluation. Plaintiff, the Human Resources Manager, was excluded from personnel/human resources decisions involving Female 8, because Plaintiff had objected to Guillen's similar favoritism toward Female A. Female B's salary had been increased by about 70% since 2005, far above that for other employees and positions of a similar nature in the City, including Plaintiff's.

In July 2007, Guillen made sure that Female B was officially reclassified with a 19% raise.

In October 2007, Plaintiff asked for routine authorization to use leave time to care for a family member. Guillen said he approved the leave in discussions directly with Plaintiff. Shortly thereafter, Female B challenged Plaintiffs leave, singling out Plaintiff. City staff then contacted Attorney O'Neill in an effort by Female B to challenge Plaintiffs routine entitlement to leave and embarrass or humiliate Plaintiff. In December 2007, Female B challenged Plaintiffs right to a small reimbursement under a benefit provision that had been in place for years, again singling out Plaintiff. Plaintiff was advised by the City that Guillen had been the instigator of the challenge, and Plaintiff reasonably understood that Female B was acting with the consent of Guillen in both cases. Plaintiff was being ostracized and isolated by Guillen, while he continued to undercut her role in the office.

In March 2008, Guillen gave Female B another 5% raise. Guillen claimed that Female B should get another raise because she had been successfully performing her management job, which was not a standard City rationale for such raise.

On October 23, 2008, Plaintiff sent a 13-page letter to the City and City
28 Attorney in regard to the conduct of Guillen, providing additional specific information to the City, quoting inappropriate emails from Guillen, recommending that the City interview eight identified persons, and referencing other persons with direct knowledge of Guillen's actions. Plaintiff is informed and believes that the City did not interview all of those persons or analyze the documentary evidence in the City's actual or constructive possession, and did not take reasonable steps to acquire material information. Plaintiff is informed and believes and on that basis alleges that Guillen put Female B in charge of the City's actions as to Plaintiffs claims, including the alleged retention of documents and communicating with City employees about the matter, effectively allowing Guillen to control and monitor the City's actions in regard to claims about Guillen's conduct, and providing notice to the employees that Female B was authorized by the City and Guillen to monitor the City's actions.

Source: COMPLAINT
JANE KINGSLEY MILLER, Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, and DOES 1 through 100, Defendants.
Case No. M99513
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY


The Burch declaration, which provides the primary evidentiary basis for the City's motion, is insubstantial and inadmissible.

Guillen and Heidi Burch are now involved in a relationship that is inappropriate for the work place. For more than a year before Guillen told me that he was eliminating my position for budgetary reasons, Guillen and Heidi Burch had almost daily meetings behind closed doors and went to lunch together on a daily basis. It's been observed by me and several other staff members that Guillen and Heidi often try to be secretive about their time together by coming and going out of separate doors at City Hall, but then joining up in the parking lot. They have gone together to functions outside the City, sometimes in circumstances that bring into question their professionalism and relationship.

Guillen hired Heidi on August I, 2005. Heidi had a good education, but no public sector or City Clerk experience. Her• starting salary was $5,379/rnonth. In February 2006, after six months on the job, Heidi received a step increase from step 2 to 3 which was equal to 5% increase in salary.

By March 2007, Heidi was unofficially "reclassified" by Guillen to City
Clerk/Deputy City Administrator for taking on more of Guillen's responsibilities. However, Guillen and Heidi continued to participate in most City Administrator functions jointly, rather than independently. In July 2007, Heidi was officially reclassified via the budget documents as City Clerk/Deputy City Administrator at a salary that was 19% higher. Later and prior to the new budget of 2008/09, without Council action, Guillen and Heidi decided that her title should be Assistant City Administrator/City Clerk. When I left in May 2008, Heidi had not been given a recent perfom1ance evaluation on the new job duties she had been assigned and no new job description had been created to categorize her duties. Her monthly salary in March 2008 was $9, 125/month.

Since 2005, Guillen increased Heidi Burch's salary by about 70%.

Source: Letter from Jane Miller to Mayor and City Council
Re: My Employment with the City of Carmel-by-the-Sea
October 23, 2008


I have received your letter dated January 12, regarding the "investigation" that is underway. At the same time, my client, Jane Miller, has received two direct communications from Heidi Burch, where Ms. Burch makes certain demands and representations on behalf of the City, some of which are retaliatory.

As for the direct contact with Ms. Miller by Ms. Burch, I do not understand what the City hopes to accomplish with it. The evidence is overwhelming that Ms. Burch has been the beneficiary of Mr. Guillen's actions, and that Ms. Miller has made claims about that favoritism and about the role of Ms. Burch. Nevertheless, Ms. Burch has been authorized by the City to act on behalf of the City in regard to Ms. Miller, to bypass Ms. Miller's legal counsel, and to communicate directly with a represented party. It is hard to imagine a more inappropriate person to be designated to give orders and impose deadlines on Ms. Miller. Once more, as I did with Mr. Guillen's attempt to intimidate Ms. Miller back in May, I ask that the City not contact Ms. Miller directly. I also ask that Ms. Burch stop communicating directly with Ms. Miller.

Source: Letter from Michael Stamp, LAW OFFICES OF MICHAEL W. STAMP, to Richard C. Bolanos, Liebert Cassidy, Attorney for the City, January 12, 2009


INTRODUCTION AND SUMMARY

The City's motion to disqualify opposing counsel, Michael W. Stamp, is dated September 1, 2009. The City's sole factual basis for the City's allegations about the nature and extent of the former representations is the August 26, 2009 Declaration of Heidi Burch.

A careful review of those documents- the entire factual basis for the City’s motion- shows that Ms. Burch's characterizations of the documents were exaggerated, confused. misleading, and inaccurate. By comparing the Burch Declaration to the documents, it is apparent that Ms. Burch stretched the facts in efforts to create materiality and confidentiality.

Ms. Burch inaccurately describes each matter, as the records show.

BURCH CLAIM NO. 3.
Ms. Burch misstates the issue and the context of the cited material.

BURCH CLAIM NO. 4.
Ms. Burch misdescribes and distorts the 1987 documents in a troubling effort by the City to link them to the "personal relationship" of Mr. Guillen and Ms. Burch and of Mr. Guillen and Ms. Christie Miller in the current case.

BURCH CLAIM NO. 5.
Ms. Burch materially misstates the contents of the document.

BURCH CLAIM NO. 8.
The exaggeration by Ms. Burch is misleading.

Source: MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO CITY'S IN CAMERA DOCUMENTS
Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
LAW OFFICES OF MICHAEL W. STAMP
Attorneys for Plaintiff Jane Kingsley Miller


THE CITY FAILED TO MEET ITS BURDEN OF PROVING A DISQUALIFYING CONFLICT
The City's Showing - the Burch Declaration.

In filing this motion on September 1, 2009, the City stated under penalty of perjury that City Clerk Heidi Burch had accurately summarized the records that the City was relying upon for its claim of a substantial relationship between a former representation of the City and the Jane Miller case. The Burch declaration was the factual basis for the City's motion.

In the opposition filed October 8, 2009, Plaintiff Miller showed that Burch's declaration was not admissible because there was an insufficient foundation for any opinion. On October 23, 2009, this Court agreed, and ordered the City to produce the underlying documents for in camera review.

On November 9, 2009, Millers counsel got his first opportunity to address in any way the 106 City pages. At that time, Miller's counsel demonstrated that Burch's declaration supposedly summarizing the documents was materially false, stretched and exaggerated the truth, and grossly mischaracterized documents in an effort to fit them into the City's contention that there was an actual conflict with the Miller case.

In the City's most recent response filed November 17, the City makes no effort to correct the record, explain the Burch missteps, or show that the City did not in fact intend to mislead the Court and opposing counsel.

Source: PLAINTIFF'S CLOSING MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO CITY'S BRIEFING
Michael W. Stamp, State Bar No. 72785
Molly E. Erickson, State Bar No. 253198
LAW OFFICES OF MICHAEL W. STAMP
Attorneys for Plaintiff Jane Kingsley Miller

ADDENDUM:
“Situational ethics, ethics that focuses on the ends, is not what government ethics is about. Government ethics is rules-based ethics. In rules-based ethics, one is supposed to employ the categorical imperative, that is, ask oneself if you would make the principle on which you act apply to everyone. Situational ethics is just the opposite; it assumes that principles apply or don't apply depending on who is in what situation. For example, campaign finance disclosure is important when the opposition isn't disclosing enough, but is unconstitutional when you or your supporters have something to hide.”

Source: Situational Ethics Is Inappropriate in a Government Ethics Context
Fri, 2010-10-15
Robert Wechsler
Director of Research, City Ethics

OPEN LETTER to John Goss, Interim City Administrator

“I’ll get things accomplished pursuant to the direction of the city council.”
John Goss, The Carmel Pine Cone, April 22, 2011

That commitment would suffice in a city without significant problems, but Carmel’s city government has profound and fundamental governance problems stemming from Mayor Sue McCloud’s and City Councils’ serious breaches of the public trust over many, many years. Your role, then, is more than assisting the council with the budget and the selection of a fire services alternative; your role should also be about restoring public confidence in our city government. To that end, I sincerely hope that prior to you accepting the Interim City Administrator position you read former Human Resources Manager Jane Miller’s court file and have given some thought about how you can begin to restore public trust in Carmel’s city government because attorney Michael Stamp is absolutely correct in his assessment that “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.”

In closing, even though your tenure as Interim City Administrator is short-term, your most important priority should be restoring public trust in Carmel’s city government. In pragmatic terms, restoring public trust begins with the Interim City Administrator managing the city, not the mayor.

P.S. Regarding the upcoming Fire Services Workshop, the City should have the 76-page Fire Service Alternatives packet loaded onto the City’s website for public access purposes. The City should also have an up-to-date website with agendas and minutes for all boards and commissions, at a minimum.

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

Editorial: Carmel's extreme confidentiality: ‘As it stands, the council majority is being portrayed – fairly or unfairly – as intent on protecting a wrongdoer.’

HIGHLIGHTS of THE HERALD’S VIEW: Carmel’s extreme confidentiality:
• “Clearly, some members of the Carmel City Council don't want to talk about the future of City Administrator Rich Guillen, but that doesn't mean they can keep the public in the dark forever in hopes the matter just goes away.”

• “A vote on Guillen's fate was taken in executive session Sept. 21, but the result still hasn't been made public in seeming violation of the Brown Act.”

• “The Guillen matter has already dragged on too long, but it won’t truly be over until the council gives a reasonable accounting of what has transpired behind closed doors and provides a clear explanation of what happens next.”

• “As it stands, the council majority is being portrayed – fairly or unfairly – as intent on protecting a wrongdoer. It is hard to imagine that some overdue transparency would create any more troubles than those that have been created by so much secrecy.”

Sources: THE HERALD’S VIEW, Carmel’s extreme confidentiality, February 4, 2011, The Monterey County Herald, web and print editions

COMMENTARY: Without Fear or Favor

No man or woman of integrity would participate in a city council meeting with City Administrator Rich Guillen knowing Rich Guillen has engaged in a pattern of unethical conduct over many, many years involving former Human Resources Manager Jane Miller, former Assistant City Administrator Greg D’Ambrosio, former Community and Cultural Director Brian Donoghue, former Library Director Margaret Pelikan, former Executive Assistant Sandy Farrell, former city employee Christie Miller and Assistant City Administrator/City Clerk Heidi Burch.

All men and women of integrity recognize that if the City Administrator lacks credibility with the public, then he/she must be removed or resign for the “good” of the City.

All men and women of integrity recognize that integrity means deeds must be commensurate with words. Words, in the form of opinions, do not stand alone; they must be accompanied by acts which support articulated opinions. Otherwise, words are meaningless.

All men and women of integrity expect their elected officials, namely Mayor Sue McCloud and Council Members Jason Burnett, Paula Hazdovac, Karen Sharp and Ken Talmage and their appointed officials, namely Planning Commissioners Keith Paterson, Steve Hillyard, Jan Reimers, Victoria Beach and Steve Dallas, Forest & Beach Commissioners Les Kadis, Tom Leverone, Joe Ford, Todd Hornik and Vicki Lynch, Historic Resources Board Members Erik Dyar, Erl Lagerholm, Elinor Laiolo, Gregory Carper and Matthew Little, Community Activities and Cultural Commissioners Ruth Rachel, Dixie Dixon, Donna Jett, Clyde Klaumann and Conrad Kohrs and Harrison Memorial Library Board of Trustees, Robert R. Irvine, Martha Mosher, Nancy Collins, Elisabeth Ungaretti and Michael Lynch to have a “zero tolerance” policy for sexual harassment, employment discrimination and retaliation. We further expect them to take seriously the claims of “hostile” workplace environment and forced “early retirement” of five former senior management city employees. Accordingly, we would expect them to act by signing a petition calling for the resignation or removal of City Administrator Rich Guillen for the “good” of Carmel-by-the-Sea and present the petition to Mayor Sue McCloud. And if City Administrator Rich Guillen did not resign or the City Council failed to vote to remove him, then the appointed city officials and council members in support of the resignation or removal of the city administrator would resign from their respective offices on principle.

All men and women of integrity value principle over politics and the “good” of Carmel-by-the-Sea over any single elected official’s ambitions and agenda.

All men and women of integrity would not characterize this crisis as a “controversy” in order to rationalize the need to bury the proper resolution of the future city employment of Rich Guillen in order to address other important issues.

Finally, elected and appointed officials would do the right thing if we, their constituents, expected and demanded it of them.

KION QUESTION: WHY WON’T THE CITY RESOLVE THE ISSUE?

KION CENTRAL COAST NEWS
Carmel Controversy Continues
Duration: 2:16

SYNOPSIS:
KION Reporter Shannon Hogan went to City Hall to interview Mayor Sue McCloud, but the mayor refused to go on camera or answer how, or if, the City punished City Administrator Rich Guillen. Guillen returned to work this week after a three week vacation.

KION QUESTION:
WHY WON’T THE CITY RESOLVE THE ISSUE?

“The management issue remains before us and it clearly is not settled” and the issue “should have been resolved many months ago,” stated City Council Member Jason Burnett.

Mayor Sue McCloud said it is time to start focusing on other issues.

ASSERTIONS of Mayor Sue McCloud & Vice Mayor Paula Hazdovac REFUTED by Plaintiff Attorney Michael Stamp and The Honorable Larry E. Hayes

ABSTRACT: Today, The Monterey County Herald published a Guest commentary by Mayor Sue McCloud and Vice Mayor Paula Hazdovac entitled “Carmel critics corrected.” The main assertions of the mayor and vice mayor are quoted, followed by statements refuting those assertions made, "under penalty of perjury," by Plaintiff attorney Michael Stamp and statements from the Order After Hearing, written by The Honorable Larry E. Hayes, Judge of the Superior Court, County of Monterey. A COMMENT is made about the lack of credibility of the mayor, vice mayor and credibility of the Plaintiff attorney and Superior Court Judge.

ASSERTION of Mayor Sue McCloud and Vice Mayor Paula Hazdovac:
“An independent investigator from out of the area was retained by LCW to investigate Miller's allegations. Stamp was contacted on several occasions and asked to provide documentation to support Miller's claims and to authorize the investigator to interview Miller. Stamp declined to provide any documentation or to make his client available.”

“Guillen was interviewed by the investigator, as were a number of employees. Lacking documentation from Miller or her attorney, and upon completion of interviews with employees, the investigator concluded there was no substance to Miller's claims.”

REFUTATION by Plaintiff Attorney Michael W. Stamp:
The reasons that Ms. Miller did not provide an interview for the “investigation” were made clear in the correspondence: Liebert Cassidy would not answer the inquiries made by the Plaintiff about the investigation, privacy, the scope, and the lack of independence of the investigator. In addition, Ms. Miller provided a 13-page document providing details of her claims, and suggesting that several identified persons be interviewed. The City did not interview most of the persons identified by Ms. Miller. It also appears that the City never obtained any of the emails sent by Mr. Guillen to Ms. Miller, and did not interview former employees (or tell the investigator about them), including the four employees that the City had settled with in regard to claims of forced “retirement.”
(Source: DECLARATION OF MICHAEL W. STAMP IN SUPPORT OF OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL)

ASSERTION of Mayor Sue McCloud and Vice Mayor Paula Hazdovac:
“In their commentary, Hardy and Anderson state that four city employees were "forced from their jobs," allegedly by the city administrator. Factually, the four employees elected to retire during periods in which the city offered the "golden handshake" early retirement program option that provides an additional two-year credit on the employee's retirement account. Miller was the human resources manager for the city.”

REFUTATION by Plaintiff attorney Michael Stamp and The Honorable Larry E. Hayes, Judge of the Superior Court, County of Monterey:
...claims of “hostile work environment” and “forced early retirement” by Senior Management Employee #1, Senior Management Employee #2, Senior Management Employee #3 and Senior Management Employee #4 and Senior Management Employee #5 Human Resources Manager Jane Miller.

In 2003, 2006, and 2008, I represented four other senior City of Carmel-by-the-Sea employees in claims similar to those advanced in this case on behalf of Ms. Miller. I negotiated those cases directly with the City. In those four cases, I raised issues about the “early retirement” efforts by the City, raised issues of discrimination, and asserted my clients’ claims for compensation. In all four cases, agreements were reached and the agreements were approved by the City Administrator, Mayor and City Council. The third and fourth of those cases included written settlements agreements approved by the City Attorney, Mayor and City Council. The City agreed to pay more than $500,000 in negotiated “early retirement” compensation to my clients in those four matters.

In all four of these disputed matters, Mr. Guillen identified the issue to be negotiated as the early retirement of the employees in order to avoid further action. In all four cases, Mr. Guillen repeatedly assured me that the City Council and Mayor considered the matters to be significant, and Mr. Guillen emphasized that the claims were significantly higher than her wanted to pay on the claims, but that he considered the expenditures to be necessary under the circumstances. He frequently assured me in regard to each of the four clients that he was in frequent direct communications with the Mayor and City Council about the status of the negotiations.

The four matters from 2003 to 2008 resulted in the City agreeing to pay negotiated payments of more than $500,000 to the four employees. There was no doubt that the City considered the four cases to be significant, both financially and organizationally…In all four cases, Mr. Guillen advised me that the City Council had been fully briefed on all issues, that the City Attorney had approved the settlements, and that the issues, claims, and amounts had been carefully considered.
(Source: DECLARATION OF MICHAEL W. STAMP IN SUPPORT OF OPPOSITION TO MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL)

The City did so first by not claiming a conflict when Mr. Stamp, over a period of five years, represented four senior City employees with claims similar to Ms. Miller.

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’s primary contention on the motion that the City had no ability to raise a conflict until this lawsuit was actually filed is not credible, and the City presented no applicable legal authority for its position. The City’s other contentions are not credible, and are contradicted by the testimony offered by Plaintiff and by the documentary evidence presented.
(Source: ORDER AFTER HEARING, RE: Defendant City of Carmel-by-the-Sea’s Motion to Disqualify Plaintiff’s Counsel, The Honorable Larry E. Hayes, Judge of the Superior Court)

COMMENT:
• The assertions of Mayor Sue McCloud and Vice Mayor Paula Hazdovac were not fact checked by The Monterey County Herald as the newspaper does not employ a fact checker. In fact, a former editor of The Herald once stated “We print what we are told.” In contrast, the statements of Plaintiff attorney Michael W. Stamp were declared "under penalty of perjury" and are supported by the written statements of The Honorable Larry E. Hayes, Judge of the Superior Court, County of Monterey, in his Order After Hearing.

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

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

Town Hall Meeting Registration

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


Miller 1 of 2

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

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

Town Hall Meeting Registration

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


Miller 2 of 2