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HomeMy WebLinkAboutCC Min 1990-12-05 11-26-90/12-5-90 I Approved: ~~..J t. ~k~ Mayor Attest: NOTICE OF CHANGE OF HOUR OF MEETING The regular adjourned meeting of the Seal Beach City Council scheduled for Wednesday, December 5th at 9:00 a.m. was rescheduled to be held on December 5th at 4:30 p.m. in city Council Chambers, 211 - 8th street, Seal Beach. Notice of said change of hour was posted December 3rd, 1990. I Seal Beach, California December 5, 1990 The City Council of the City of Seal Beach met in regular adjourned session at 4:36 p.m. with Mayor Wilson calling the meeting to order with the Salute to the Flag. ROLL CALL Present: Mayor Wilson Councilmembers Forsythe, Hastings, Laszlo Absent: Councilman Hunt Councilman Hunt arrived at approximately 5:15 p.m. Also present: Mr. Archibold, Acting City Manager Mr. Walsh, Assistant to the city Attorney Mrs. Yeo, City Clerk J CIVIL SERVICE BOARD REPORT - CONFLICT OF INTEREST/NEPOTISM The Acting city Manager read the motion of the civil Service Board from their meeting of October 25th, "to show a finding that nepotism does exist and recommend to City Council that all nepotism be eliminated and established procedures be followed regarding same." He requested that after review and discussion, the Council instruct staff to proceed in a manner determined appropriate. Ms. Sylvia Kellison, Law Firm of Silver, Goldwasser and Shaeffer, stated she was present to represent Bill and Michelle Stearns and the Police Officers Association, and inquired if the reference to nepotism was as defined in Rule 22 of the Personnel Rules. Mr. Archibold confirmed that it was. (As a point of 12-5-90 clarification, Rule 22 was referenced in error, where the applicable Rule is 16(3). Ms. Norma Strohmeier stated that as a member of the civil Service Board it was her understanding that nepotism, conflict of interest, or any other matter of concern was to be investigated, and asked that the memorandum she had distributed to the Board and the Council be entered into the record. The Assistant City Attorney explained that the matter under discussion is the report from the civil Service Board, that no official record is being created, and recommended against making the letter from Ms. Strohmeier a part of the official minutes. Mayor Wilson moved that the letter from Ms. strohmeier be received and filed. An objection to reading the subject letter into the record or making the letter public was made by Attorney Kellison, citing the information contained therein was part of an employee personnel file and within the privacy rights of her client. Mr. Irwin Zeiger, member of the civil Service Board, recalled that upon the Grand Jury transmittal of its report on nepotism to the City, the City Council charged the civil Service Board with the duty of determining whether nepotism existed and asked for submittal of recommendations to the Council, which was concluded at the October 25th meeting. He offered that the reasoning was based upon Section 3 of the current Personnel Policies which states that no husband and wife shall be employed in the same department, therefore the matter under consideration was a prima facia case of nepotism as described in that Section. He noted that Attorney Walsh disputed that determination on the grounds that State regulations invalidated this provision of the Personnel POlicies, yet since the provision remained in effect the Board felt it continued to be binding. Mr. Zeiger stated the Board found the Council to be in violation of its own rules, specifically that "no employee may be placed in a different class unless he shall first have filed a written consent thereto" and "when one or more positions are to filled, the appointing authority shall notify the Board of that fact and the Board shall certify to such appointing authority the names and addresses of two or more candidates than the number of positions to be filled." Mr. Zeiger stated that at no time did the Board charge that the Council acted from any other motive than to save City money and fill vacancies with competent employees, and at no time was there any suggestion that Michelle Stearns was anything other than a loyal, dedicated, efficient City employee. He stated he felt that the Board had discharged its duty by making a determination and a recommendation, and that he found the materials submitted to the Council at this meeting by Boardmember Strohmeier to be redundant and irrelevant, yet in his opinion, the information relating to Carolyn Lindberg may warrant investigation by the Council. Mr. Zeiger noted that in investigating the Grand Jury charges, the agenda for the October 11th meeting called for the appearance of local citizens before the Board, that a Mr. Boag was to have addressed the Board yet did not appear, that a citizen, Ms. Antoci, charged that he had left because he was intimidated by police activity targeted towards him, however Mr. Boag was invited and addressed the Board at the October 25th meeting. He stated he had requested and received a transcript of Police Department messages at the time of the October 11th incident, and it seemed clear to him that Mr. Boag was a subject of police activity that could be interpreted as harassment, to which he said he could find no justification. He noted the Police Department had submitted their report of the incident to the Council and on the basis of that report and without a report from I I I . ' 12-5-90 I the complaining citizen, the Council informed the Board that the matter had been resolved and that the Board need take no action. Mr. Zeiger said the incident could be construed as misguided zeal however at stake is the public trust of the administration. Councilmember Hastings requested the Council be provided with copies of Mr. Zeiger'S report. Ms. Beverly Casares, Seal Beach, expressed support for efforts of Ms. Strohmeier as an appointed member of the Civil Service Board, and described herself as a pro-police person. Ms. Casares requested legislation to protect the job of any employee so that they may disclose the misuse of public funds, fraud, or conflict of interest. She reported a number of present and past employees possess documents that make serious allegations such as involuntary retirements, creation of positions, etc. Ms. Casares'said in this particular case City Hall created the problem for the Police Department, a situation of at least three years past, now meant to discredit Chief stearns, the result of actions of former employees citing violations of the Charter, State and Federal laws. She noted that although conflict of interest, favoritism, and nepotism were cited in the Grand Jury report, only the issue of nepotism was referred to the civil Service Board. Ms. Casares predicted that the Chief would not take a legal action regarding this issue, and said she took offense to the conduct of Attorney Kellison. Ms. Kellison stated that the Civil Service Board had been advised that the personnel rule that prohibited married persons from working in the same department is a violation of State law, yet the finding of the Board was based upon that rule, and in three separate cases since 1973 that rule has been found to be unenforceable, a January, 1973 injunction prohibited the City from imposing that rule on the two employees should they marry, also from terminating either person should they work in the same department, and read a memorandum by and between the Police Department and City Manager relating to that case. She reported in 1980 marital status discrimination law came into effect which prohibits taking any job action against a person on the basis of their marital status, and for co-employees who subsequently marry the law provides that the employer shall make reasonable efforts to assign job duties so as to minimize problems of supervision, safety, security or morale. Ms. Kellison said the city has been in receipt of copies of 1983 correspondence between the Police Officers . Association and the City Manager where the City agreed that the personnel rules relating to nepotism would not be enforced as to current employees, at which time there were three to four married couples in the Department. She stated the civil Service Board never found that the personnel rule was enforceable or legal, only that it exists, yet it is in violation of State law, and if enforced, it would be a violation of civil rights. Ms. Kellison claimed that in her eighteen year experience of representing employees, this was the only case where a board member has said, before any information or evidence had been taken, that everyone involved should be disciplined, that another person should be reinstated with back-pay, and she charged that information from the Board's closed session has been given out, which invades the privacy rights of employees. Ms. Kellison stated no finding of wrong doing has been found against either Michelle or Bill Stearns, that testimony presented showed that Chief Stearns had nothing to do with the placement of Michelle Stearns in her position, and even if he had, there was no violation of law. She noted the existing Personnel Rules are in the process of review and revision to comply with current law, that enforcement of existing rules would be a violation of civil rights, and may I I 12-5-90 constitute a necessity for their firm to review every case of discipline in the Department so long as the membership of the Board remains as it currently exists, and in such cases their firm will request Boardmember Strohmeier be disqualified as a result of her lack of regard for evidence presented for the record, which is grounds for decisions to be overturned by the court, and to that she suggested that Boardmember Strohmeier either be instructed on the procedures to conduct a hearing under due process regulations and accepted practice in California, or that she be removed from the Board. Councilmember Hastings questioned the propriety of Ms. Kellison being in attendance at the closed session. Ms. Kellison responded that there had been discussion of allegations that could possibly lead to a disciplinary action against her client where, under the Police Officers Bill of Rights and due process, the employee has the right of representation and it is at the discretion of the employee as to whether the matter is considered in public or closed session. Councilmember Hastings said Boardmember Strohmeier had come upon information that she wished to present to the Board, and questioned whether Ms. Kellison should have had the privilege of that information since it was in a closed session. She spoke in support of Ms. Strohmeier's efforts to investigate this matter, took exception to the comments of Ms. Kellison, and explained the violation that was felt to have existed was that Bill Stearns was Michelle stearns superior and she reported directly to him. Ms. Kellison responded that Bill Stearns was not the immediate supervisor of Michelle nor did he evaluate her work, that responsibility was then with Captain Garrett, that the City Council was the body that created the position, and considered by the civil Service Board prior to placing Michelle Stearns in her position, the purpose basically to retain the employee who would otherwise be a disability retirement. Ms. Kellison provided copies of referenced documents to the Council. Councilmember Hastings recommended that the Civil Service Board be directed to reopen and conduct a thorough investigation of this issue. In response to Councilman Laszlo, the Assistant City Attorney confirmed that the Civil Service Board does have the authority to investigate and make recommendations on matters referred to that body by the City Manager or city Council, however any investigation must be made by the body as a whole with evidence disseminated simUltaneously for purposes of discussion and evaluation by all members, as opposed to an individual member gathering information and documents independently, then reaching an independent conclusion or discussing same at a following meeting. He added that the primary responsibility of the Civil Service Board is to hear disciplinary appeals, and if in the course of investigation one or more members of the Board come to the conclusion that an individual should be disciplined for some behavior in which they were engaged, that member has then precluded themselves from being involved in any disciplinary appeals that may come before the Board involving that incident and individual. Councilman Laszlo inquired as to the correct procedure for the Civil Service Board to handle investigations. The Assistant City Attorney explained that the Board must be made aware of what it is they are to investigate through clear, precise written directions of their charge, who and what they are to investigate, if they are to make recommendations, what type of recommendations, and the Board then gives direction to staff to gather the information relating to the item or incident they wish to review. In the case where there may be a need to question individuals I I I 12-5-90 I about the situation, those persons should be invited to come forward to respond to specific questions relating to the issue, and all Board members should be present to hear the testimony, ask questions, and evaluate information, and if there is a challenge that person should be provided the opportunity to present their case, then, after full discussion of the evidence, statements, and issues, there are deliberations, a decision, and recommendations to the Council. With regard to presentation of the report to the Council, the Assistant City Attorney offered that it would be appropriate for a report to be made in writing or personally by the chairman or a member of board, and clarified that the only official report from the Board to the Council in this particular case is the motion itself. Councilman Hunt inquired if it were felt the Council had provided clear and concise direction as to the task of the civil Service Board, or were there subsequent direction to the Board that clarified the intent of the Council, and in the final analysis did the response or action of the Board reflect the intended task of the Council. The Assistant City Attorney offered his opinion that he did not feel the Board had adequate direction as to their task, the Board merely asked to investigate and make recommendations regarding the matter of nepotism and conflict of interest referred to in the Grand Jury report, however there was an assumed intent to review the Michelle stearns reclassification matter, yet there was confusion as to whether there was to be a specific recommendation, a review, adherence to, or recommendation for revision of existing rules. Mr. Zieger said when the task of determining whether nepotism occurred was forwarded to the Board, considerable information was presented, and it was necessary to look to the intent of the Council and to the intent of the people involved in the investigation, and he felt it was determined there was no deliberate wrongdoing, and that the Council had acted in a manner to insure that the positions available were filled properly, and the intent of the transfer of Michelle Stearns to another position was for money saving purposes as opposed to having the employee go to disability leave. He said he believed the Board satisfied the duties charged by making the determination and recommendation, that there is no need to look into the matter further, and the Board had no knowledge of anything illegal nor any indication that Michelle stearns was anything other than a good employee. Councilman Laszlo stated he had envisioned that the Civil Service Board would look into the provisions of the Personnel Rules at the time in question, whether the appropriate procedures were followed, who was responsible for the hiring and filling of the position, and then suggestions as to actions the Council may consider. Mr. Zieger stated if there is need to place responsibility it would be with the City Council. He suggested that the Council should address any matters that appear to be a problem, whether it be husband and wife employed in the same department, nepotism, or whatever, however there should be assurance that the best qualified person is selected for the job, and if that were the case there would be no need for a nepotism ruling. Mayor Wilson suggested that the next task of the Council should be to bring the Personnel Rules into compliance with state law. with regard to a question relating to the availability of personnel records, the Assistant City Attorney explained that if an investigation is to be properly conducted, with all members of the Board present to review the information, the members of the Board must agree upon what information will be looked at and what is going to be investigated. Councilmember Hastings agreed I I 12-5-90 that the direction from the Council should be precise and in written form, and again stated her desire to return this matter to the civil Service Board to reopen the investigation and that the City Attorney provide the appropriate written procedures. The Assistant city Attorney reported he had provided the Board with the procedures orally prior to their vote, however the instructions were I not followed. Councilmember Forsythe stated that in reference to Bill and Michelle Stearns she felt the research and deliberations have been done, that there is nothing to correct, the Stearns' acted pursuant to a direction of a superior at city Hall that was felt to be legal and correct, and to go forward with the issue will impact the Stearns' and the Police Department further. She suggested instead that the Carolyn Lindberg matter be looked into further. Councilman Hunt offered that even though the Council did not articulate precisely the task of the civil service Board, it appeared from their meetings and report that they sensed the intent of the Council, therefore he felt satisfied that nothing would be gained by pursuing the issue further and that this matter should be closed. Councilmember Hastings questioned whether the issue has been resolved, noted that the issue of reclassification had not been investigated, and requested assurance that this type of situation will not occur again. Mr. Bruce, Stark, Seal Beach, made reference to his representation of employees throughout his working years. He confirmed that there can not be discrimination because of marital status, political affiliation, race, etc., yet said that does not mean one can not be disciplined on the same I basis. He said the Grand Jury report indicated nepotism and favoritism that had caused a low morale in the Police Department, which mayor may not be true, however the report recommended the City look into that issue, and although persons from the same department can not be prevented from marrying, nepotism occurs where there is favoritism, and that is the issue that should be addressed. With regard to closed sessions, Mr. Stark agreed that the employee/client may be represented, the city presents its case, and the Civil Service Board deliberates, however stated in his experience he has never been allowed to attend a closed session. He noted a comment that the report of Boardmember Strohmeier could not be submitted, and offered therefore that no minority report should be submitted in other matters. Mr. Stark suggested that this matter not be closed, that in the case of Ms. Lindberg it was his understanding the individual had been employed with the Police Department for approximately twenty-five years, left the city to marry and raise a family, was later hired on a part-time basis, then allegedly had a disagreement with the wife of the Chief, and subsequently removed from employment with the city, and should that be true there has been injury, and he would expect the City to do whatever is felt to be right in this case. He suggested also that the morale I of the Department should be looked into. Mr. Stark offered that the civil Service Board should be revamped or disbanded, and stated his objection to two members of that body being former Police Department employees. Mr. Stark spoke in support of the integrity and dedication of Ms. Strohmeier, a former president of the union at the Naval Weapons Station whose job was to represent employees. He made further reference to the Civil Service Board, questioned their subpena powers, and stated the responsibilities of the Board and means to accomplish their task should be addressed. As a point of information, the 12-5-90 I Assistant City Attorney advised that Charter section 903(b) currently gives the Board the power to compel attendance of witnesses, the collection of documents by subpena, and the examination of witnesses under oath. He again stated that the Board, in making investigations and conducting hearings, needs to adopt rules of procedure to follow, that the Charter provision does not state that an individual member has the right to subpena documents or compel witnesses, it states the Board has that right, noting that the Board does not have the power to recommend or impose discipline. He clarified that his comments to the Board regarding completion of the investigation before action was taken were made after the motion was seconded, and indicated that there had not been any findings of fact or conclusions or complete review of the evidence, however the motion was voted upon. It was the order of the Chair, with consent of the Council, to declare a recess at 6:08 p.m. The Council reconvened at 6:15 p.m. with Mayor Wilson calling the meeting to order. I Councilmember Hastings restated her motion to refer this matter back to the civil service Board with written instructions as to the investigation that the city Council desires, and request the Acting City Manager, with the Assistant city Attorney, to prepare a format for the Board to follow in their full investigation. She said she would accept the recommendation of Mr. Stark to revise the Civil service Board so that it is a viable body. Councilmember Forsythe reiterated her previous comments with regard to the stearns matter, suggesting that it not be referred back to the Board, noted there are no disciplinary actions that can be taken and the persons responsible for the prior decisions are no longer with the city. Councilmember Forsythe did however support referring the Carolyn Lindberg matter to the Board for review to insure there were no wrongdoings in that'case, and that steps be taken to bring the City into compliance with current law in an effort to avoid a reoccurrence of these situations, as a substitute motion. Discussion followed as to the desired procedural steps to review the Lindberg matter, and individual opinions were expressed with regard to accepting the civil Service Board report. There was no second to Councilmember Hastings motion. councilmember Forsythe inquired if acceptance of the Civil Service Board recommendation would place the city in an undesirable position. The Assistant City Attorney stated his understanding of the Board decision was that unde~ the Personnel Rules it states a husband and wife should not be employed in the same department, the Board made a finding that they were, that they did not find any misconduct or anything improper on the part of any employee, and given that that Rule can no longer be enforced, it is felt acceptance of the Boards action would not place the city in any jeopardy. I Councilman Hunt moved to approve Councilmember Forsythe's substitute motion to 1) accept the report of the civil service Board, 2) proceed with the personnel procedural changes as discussed at a previous meeting, 3) consider a reanalysis of the Ms. Lindberg matter by the civil Service Board, and 4) coupled with the reply to the orange County Grand Jury, consider this matter closed. Mayor Wilson seconded the motion. The Assistant City Attorney explained the Grand Jury has disbanded therefore there is no one to forward the Council action to. Councilman Hunt amended the motion to delete item four of the motion. The Assistant 12-5-90/12-10-90 City Attorney clarified that the action of the Council is merely accepting the report from the Board, that the Council is neither endorsing or ratifying their recommendation. He received clarification of the motion that specific direction will be given to the civil Service Board regarding the Ms. Lindberg matter. Councilmember Forsythe said it was the intent of her motion to include a vindication of Bill and I Michelle stearns, that no wrongdoing was found. Councilmember Hastings stated she would support removing the reclassification procedure from the Code, and requested a report from staff be placed on a future agenda. Councilman Hunt suggested that the motion on the floor be amended to read "the stearns' matter has been reviewed and analyzed by the City Council and the Civil Service Board and is concluded to be in compliance with all applicable standards." There was a consensus of the Council to accept that wording. AYES: NOES: Forsythe, Hastings, Hunt, Laszlo, Wilson None Motion carried CLOSED SESSION No Closed Session was held. ADJOURNMENT Laszlo moved, second by Forsythe, to adjourn the meeting at 6:45 p.m. AYES: NOES: Forsythe, Hastings, Hunt, Laszlo, Wilson None Motion carried I clerk of the Approved: ~ 'i:. ~~ Mayor Attest: Seal Beach, California December 10, 1990 The City Council of the City of Seal Beach met in regular session at 7:02 p.m. with Mayor ProTem Laszlo calling the meeting to order with the Salute to the Flag. ROLL CALL Present: I Mayor ProTem Laszlo Councilmembers Forsythe, Hastings, Hunt Absent: Mayor Wilson Hunt moved, second by Forsythe, to excuse the absence of Mayor Wilson from this meeting.