Four Noteworthy 2 November 2010 City Council Agenda Items

ABSTRACT: Four Noteworthy 2 November 2010 City Council Agenda Items, namely Receive City’s Year-End and First Quarter 2010-2011 financial reports, an appeal of the Planning Commission’s decision to approve the Carmel Sands Redevelopment Project and to adopt a Mitigated Negative Declaration, Revised Harassment Prevention Policy for the City of Carmel-by-the-Sea and Receive report and provide policy direction on circulating a Request for Proposal (RFP) for the management and operation of the Children’s Experimental Theater. Excerpts from Agenda Item Summaries and Staff Reports are presented; uploaded documents include the Revised Harassment Prevention Policy (2010) and Carmel Sands Initial Study (IS) & Mitigated Negative Declaration (MND).

AGENDA PACKET
Regular Meeting
Tuesday, November 2, 2010
4:30 p.m., Open Session

Live & Archived Video Streaming

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

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

C. Announcements from City Administrator.

3. Receive City’s Year-End and First Quarter 2010-2011 financial reports.

VIII. Public Hearings

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

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

Description: The project consists of the demolition of the existing 42-room Carmel Sands Lodge and the construction of a new 42-room hotel that includes a 64-space underground garage, a restaurant, a day spa and two retail spaces. The appellant is requesting that the Council overturn the Planning Commission’s decision to approve the project and is requesting that an Environmental Impact Report be prepared for the project.

Staff Recommendation: Deny the appeal and uphold the Planning Commission’s decision.

Important Considerations: The California Environmental Quality Act (CEQA) requires that a lead agency prepare an Initial Study for all projects that are not categorically or statutorily exempt. An Initial Study is prepared to determine if a project may have a significant effect on the environment.

The City prepared an Initial Study for this project and determined that all potentially significant environmental impacts could be mitigated. The Planning Commission therefore adopted a Mitigated Negative Declaration for the project.

Decision Record: The Planning Commission approved the project and adopted a Mitigated Negative Declaration on 14 July 2010. An appeal was filed on 27 July 2010.

INTRODUCTION & BACKGROUND
The Carmel Sands Lodge is located at the northeast corner of San Carlos Street and Fifth Avenue in the Service Commercial (SC) District. The lodge consists of 42 guest rooms and a 120-seat restaurant in three buildings. The site also includes a large surface parking lot and a swimming pool. The buildings on the site are not considered historically significant. A Determination of Ineligibility for listing on the City’s Historic Inventory was issued on 1 September 2006.

An application was filed in 2008 for the demolition of the existing hotel and the construction of a new 57 room hotel. The Planning Commission (PC) reviewed this project on August 13th, November 12th and December 10th, 2008. The PC continued the project at its 10 December 2008 hearing. There is a cap on the number of hotel rooms allowed in the City and the applicant had not yet identified where the additional 15 rooms would come from. The PC indicated that more information was needed regarding the addition 15 rooms.

The project was subsequently revised to eliminate the proposal to add 15 rooms. The revised project was then reviewed by the PC at four separate meetings. On 10 March 2010 the PC approved the Design Concept, and on 14 July 2010 the PC approved all development permits and adopted a Mitigated Negative Declaration.

An appeal was filed on 27 July 2010 by Carmel resident Barbara Livingston.

PROJECT DESCRIPTION
The applicant is proposing to demolish the existing buildings on-site and construct a new hotel (see project plans in attachment “G”). The redevelopment will include the following features:

• 42 hotel rooms in four buildings
• Intra-block walkway and interior courtyard
• Two retail spaces
• Limited use restaurant
• 64-space underground garage
• Day spa facility
• A Porte Cochere vehicle entrance on San Carlos Street

PROJECT DATA FOR A 32,997 SQUARE FOOT SITE:
Site Considerations: Floor Area
Allowed/Required: 44,546 sf (135%)
Existing: 20,780 sf (63%)
Proposed: 39,077 sf (118%)

Site Considerations: Building Coverage
Allowed/Required: 31,347 sf (95%)
Existing: 10,559 sf (34%)
Proposed: 25,052 sf (76%)

Site Considerations: Building Height
Allowed/Required: 30 ft.
Existing: 26 ft.
Proposed: 30 ft.*
*Applicant is requesting height exceptions for tower elements per CMC 17.14.150.

Site Considerations:
Allowed/Required: 57 spaces
Existing: 42 spaces
Proposed: 64 spaces

APPEAL
The appellant is requesting that the City Council overturn the PC’s decision to approve the project and adopt a Mitigated Negative Declaration based on two points, 1) an EIR should have been prepared, and 2) the project has significant drawbacks (see attachment “A”). It is important to note that many of the letters, emails and the petition attached to the appellant’s submittal were addressing the previous proposal of a 57 unit motel, not the current proposal.

EVALUATION
The following section addresses comments raised in the appellant’s letter. The numbers below correspond to the numbers annotated on attachment “A”. Staff has summarized the concerns raised by the appellant and has included a brief response.

1. The appellant argues that the applicant’s attorney stated in a letter that an EIR should be required for the project.

Response: The letter in question was in reference to the previous proposal that included 15 new hotel rooms and not to the current proposal, which does not increase the room count. The applicant’s attorney has submitted a letter to the Council indicating that the proposed Mitigated Negative Declaration is appropriate for the project (see attachment “B”).

2. The primary basis of the appeal is that an EIR should be prepared for the project.

Response: The California Environmental Quality Act (CEQA) requires that a lead agency prepare an Initial Study (IS) for all projects that are not categorically or statutorily exempt. An IS is prepared to determine if a project may have a significant effect on the environment. Based on the results of the IS, a lead agency may determine whether to prepare a Negative Declaration (ND), a Mitigated Negative Declaration (MND) or an Environmental Impact Report (EIR). A MND can only be adopted if there is no substantial evidence in light of the whole record that the project will have a significant effect on the environment that cannot be mitigated or avoided. CEQA Guidelines Section 15384 defines substantial evidence as:

“...enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might be reached…Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.”

The City prepared an IS for this project and determined that a MND was appropriate as all potentially significant impacts could be mitigated. The IS/MND was then circulated for public comment. The City received 10 comments, most of which simply requested that an EIR be prepared (see attachment “C”). Two comment letters raised questions as to whether sufficient information had been provided in the IS/MND. The City then prepared a Response to Comments that was subsequently reviewed by the PC (see attachment “D”).

On 9 December 2009 and again on 10 February 2010 the PC determined that the MND was appropriate for the project. The PC determined that the comments had been responded to, and that no substantial evidence of significant environmental impacts had been presented. The PC then adopted the MND on 14 July 2010 (see attachment “E”).

3. The appellant argues that the project could result in a canyon effect on San Carlos Street if the properties north of Fifth Avenue were built out to the sidewalk.

Response: The ‘canyon effect’ referred to by the appellant is actually a desirable attribute in the commercial district. The General Plan, Zoning Ordinance and Commercial Design Guidelines all encourage properties in the SC District to be built at, or close to the street to create a pedestrian wall (see O1-11, P1-64, & P1-68 of the General Plan, CMC 17.14.130, & Commercial Design Guideline pg. 8).

Even if the City did determine that a canyon effect at this location could be detrimental, the proposed project would not contribute any more to this effect than the existing two story structure on San Carlos Street already does, which is built to the sidewalk and stretches from lot line to lot line.

4. The appellant argues that public comments were not responded to.

Response: The Planning Commission reviewed and considered all public comments, both oral and written. The Commission determined that all of the comments were appropriately addressed through the IS/MND, the Response to Comments (see attachment “D”) and the deliberation of the Commission.

5. The appellant argues that the mass and scale of the project are inappropriate.

Response: The majority of commercial building sites in the City are between 2,500 and 8,000 square feet in size. Most of these small commercial sites were developed independently with a wide array of architectural styles. The architectural variety and small building sites contribute to the unique character of the City.

Apart from the Carmel Plaza, the majority of sites larger than 8,000 square feet are occupied by hotels. While most of the commercial buildings are modest in size and scale, many of the hotels are much larger in scale and generally consist of a single architectural style. Hotels such as the Pine Inn, La Playa, and the Cypress Inn, for example, are all developed on sites well over 8,000 square feet and are much larger in scale than surrounding development. However, these buildings add diversity and contribute significantly to the character of the City.

Tables A and B (see attachment “F”) provide some additional context as to site size, number of rooms, density and height of many of the hotels in town, including most of the hotels surrounding the Carmel Sands project. While the Sands is the second largest hotel site in the City, the project height, number of rooms, and room density are very consistent with many of the hotels in town, including those in the immediate vicinity.

The total proposed floor area ratio for the project is 118% and the total building coverage is 76%. The floor area is 17% below the base allowed floor area for the site (135%) and 27% percent below the maximum allowed floor area with bonuses (145%). The building coverage is 19% below the maximum allowed coverage (95%).

6. Traffic congestion at San Carlos and Fifth and overall parking has not been adequately addressed.

Response: The analysis shows only slight changes to peak hour and daily trips to the site. The existing surface parking lot accommodates 42 vehicles for the forty two-room motel and the 120 seat restaurant. The site is currently nonconforming by approximately six parking spaces. The proposed project exceeds the on-site parking requirement by 7 spaces, a 13-space improvement based on the City’s required parking standards. The project also creates new on-street parking spaces by eliminating existing access points on Fifth Avenue and on Mission Street. The Porte de Cochere will also allow vehicles to pull off the street while checking in or out of the hotel, thus limiting congestion (see attachment “D” for more information).

7. The appellant argues that it is unlikely an EIR would be required if this project is approved and later additional hotel units are proposed.

Response: If a proposal were submitted to add additional units to this site, an IS would be prepared. Based on the results of an IS, the City would then take the appropriate action. Adding rooms would raise potential concerns related to parking and traffic along with issues related to where the proposed new rooms were being transferred from. All of these issues would need to be addressed in the environmental review. It is impossible to know whether an EIR would or would not be required without a complete project description.

8. The appellant argues that an EIR was required for the Plaza del Mar Project and should therefore be required for this project.

Response: There are several aspects to this project that make it very different from the Plaza del Mar Project (SE Cor. Dolores & 7th ). The Plaza del Mar project was located adjacent to an historic district, involved a potentially significant architectural structure, required the removal of significant trees, involved a significant intensification of use and was requesting exceptions to several General Plan and Zoning standards.

The Carmel Sands project is not adjacent to an historic district, does not involve historically or architecturally significant structures, does not include the removal of any significant trees, is not significantly intensifying the use on the site, and is not requesting any variances. There are two potential zoning discrepancies that do exist that are discussed below. However, these discrepancies can easily be remedied and would not alone justify the preparation of an EIR.

Planning Commission: On 14 July 2010, the Planning Commission approved the project with a 4-1 vote. One of the primary topics of discussion was whether it was appropriate to have each building include variations in materials, colors and styles, as shown on the drawings. The concern expressed by the Commission was that having several variations in materials and styles may appear unauthentic and contrived. The Commission approved the project with a condition that all of the buildings be clad with stucco siding with only slight color variations. The applicant is required to return to the Commission for the final review of the exterior treatments prior to building permit issuance.

This decision appears to conflict with CMC 17.14.120, which states that projects on building sites larger than 12,000 square feet are required to be broken up into two or more distinctively different developments to avoid the appearance of a single large project. The project was designed with separate buildings with variations in materials and styles specifically to address this issue. If the appeal is denied, the Council may want to discuss whether it prefers a unified appearance, as conditioned by the Planning Commission, or variations in materials and styles, as proposed by the applicant. The Council could then provide direction to the Planning Commission on this issue.

Setbacks: An oversight was made regarding the front setback of the northern building on San Carlos Street. The code requires a five foot setback for sites that abut the RC District. The northwest building currently has no front setback. The applicant has indicated that the plans can be revised to comply with this setback requirement. If the Council denies the appeal, the Planning Commission could review the revised plans at the same time it reviews the finished details for the project.

OPTIONS
The following are potential options for the Council to consider regarding this appeal:

Option 1: Deny the appeal in full
This option would uphold the Planning Commission’s decision to approve the project and adopt a MND.

Option 2: Grant the appeal in full
This option would void the Planning Commission’s approval of the project and would require the preparation of an EIR before taking further action on the project.

Option 3: Grant the appeal in part
If the Council determines that an EIR is not required, but would like to see changes in the project design and/or additional information in the MND prior to final approval, this option could be selected. The Council could remand the project back to the Planning Commission with instructions.

Option 4: Continue Consideration of the Appeal to a Future Date
This option would allow the City Council to request additional information prior to making a final decision on the appeal.

RECOMMENDATION
Option 3: Deny the request to require an EIR but remand the design back to the Planning Commission to address CMC Section 17.14.120 related to providing more distinction in the project design and to address the front setback along San Carlos Street.


Carmel Sands Appeal IS and MND
Carmel Sands Initial Study (IS) & Mitigated Negative Declaration (MND)
XI. Orders of Council

B. Revised Harassment Prevention Policy for the City of Carmel-by-the-Sea.

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

Note:
The only instance in the eleven page Harassment Prevention Policy (2010) of “if the alleged harasser is the City Administrator,” as follows:

MISCELLANEOUS GUIDELINES
Complaints Against Volunteers or City Council Appointees.

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

F. Receive report and provide policy direction on circulating a Request for Proposal (RFP) for the management and operation of the Children’s Experimental Theater.

Description: Stephen Moorer of the Pacific Repertory Theater (PacRep) informed staff that he is authorized to manage the Children’s Experimental Theater (CET) and requested that his lease with the City for the use of the Forest Theater include using the CET indoor theater. PacRep has the keys and oversight of CET’s assets and indoor theater. Forest Theater Guild (FTG) board member Safwat Malek also inquired about using the CET indoor theater and asked for FTG’s contract to be amended to manage CET. Since the lease agreements for both PacRep and FTG have expired, now is a good time to review each lease to determine which agreement should be amended to include managing and operating CET and its indoor theater.

Overall Cost: The current leasing rate for use of the indoor theater is $160/month, plus any user charging admission or collecting a donation as a condition of admission must pay 10% of gross receipts. Staff recommends as part of evaluating any RFPs received that consideration be given to revising this fee structure.

Staff Recommendation: Provide policy direction.

Important Considerations: Preparing and circulating an RFP is the most equitable way to select a manager/operator of the CET indoor theater. At minimum, the RFP should include goals and objectives for the operation of the CET indoor theater, operational budget, qualifications and evaluation criteria.

Once the RFPs are received, an independent evaluation committee must review and recommend to the Council the most qualified candidate. Council will make the final decision on who is selected. Another alternative based on the attached letter submitted by the PacRep, would be to forego circulating an RFP and instead direct staff to negotiate a lease agreement with them.

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EMPLOYEE OBLIGATIONS

Employees are encouraged and have an obligation to:

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

2. Cooperate in any investigation.

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

RETALIATION

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

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

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

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

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

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

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

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

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

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

• Unwanted sexual advances.

• Offering employment benefits in exchange for sexual favors.

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

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

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

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

• Unwelcome verbal sexual advances or propositions.

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

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

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

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

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

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

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

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

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

• Ignoring the complainant or witness;

• Spreading rumors and innuendos about the complainant or witness;

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

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

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

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

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

The Personnel Officer shall:

1. Be notified of all complaints of harassment

2. Investigate all written complaints of harassment

3. Document all complaints of harassment

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

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

Informal Process

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

STEP 1

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

a. His/her immediate supervisor

b. Any supervisor and manager within or outside the department

c. Department Manager

d. Personnel Officer

e. Assistant City Administrator

STEP 2

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

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

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

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

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

STEP 3

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

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

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

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

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

Formal Process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disciplinary action is subject to the appropriate appeals process.

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

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

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

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

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

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

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

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

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

1. It is the policy of the City of Carmel-by-the-Sea that if the person alleged to be engaged in the harassment is the complainant’s supervisor, the complainant shall be removed from direct supervision of that supervisor and that supervisor shall not participate in performance reviews of the employee, pending the outcome of the investigation.

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

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

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

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

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

1. Steps taken to correct the harassment;

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

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

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

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

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

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

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

The Investigating Officer has the following responsibilities to the complainant:

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

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

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

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

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

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

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

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

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

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

The following general Investigation Guidelines apply to all investigations:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a. Department Manager

b. Assistant City Administrator

c. Personnel Officer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a. Department Manager

b. Assistant City Administrator

c. Personnel Officer

d. City Administrator

COMPLAINTS AGAINST ELECTED OFFICIALS

Formal Process:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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!

COURT’S OFFICIAL MINUTES: City’s Motion to Disqualify Attorney Michael Stamp from Representing On-Leave Human Resources Manager Jane Miller

ABSTRACT: Minutes (December 18, 2009) on the City’s Motion to Disqualify Plaintiff Jane Kingsley Miller’s Counsel Michael Stamp from representing her in Miller, Jane Kingsley, Plaintiff/Petitioner vs. City of Carmel-by-the-Sea, Defendant/Respondent (M99513), Superior Court of California, County of Monterey, are reproduced. Judge Larry E. Hayes denied the City’s motion and continued April 2, 2010 at 8:45 a.m. in Salinas, courtroom 4, for Case Management Conference and Discovery.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF MONTEREY

Miller, Jane Kingsley, Plaintiff/Petitioner vs. City of Carmel-by-the-Sea, Defendant/Respondent

Judge: Larry E. Hayes
Clerk: Lisa Cortez
CSR: Jeannette Jessup-Hiura – CSR#8573

Minutes: Motion to Disqualify Plaintiff’s Counsel
Date: December 18, 2009

Case No. M99513
Courtroom 4

Appearances:
Michael Stamp, Attorney for Plaintiff, Jane Kingsley Miller
Suzanne Solomon, Attorney for Defendant, City of Carmel-by-the-Sea

Case regularly called for Motion to Disqualify Plaintiff’s Counsel.

Court has reviewed all documents submitted by respective counsel.

Arguments are made by respective counsel.

Motion to Disqualify Plaintiff’s Counsel is denied. Reasons stated for the record.

Case continued April 2, 2010 at 8:45 a.m. in Salinas, courtroom 4 for Case Management Conference and Discovery.