02-06-2007 - Investigative Report of Alleged Hostile Work EnvironmentCity of West Covina
Memorandum
TO: City Council
AGENDA
ITEM NO
C-1
FROM: Andrew G. Pasmant, City Manager DATE February 6, 2007
SUBJECT: INVESTIGATIVE REPORT OF ALLEGED HOSTILE WORK ENVIRONMENT
RECOMMENDATION:
It is recommended that the City Council take any action they deem appropriate.
DISCUSSION:
This item was continued from the January 16, 2007 City Council meeting.
On September 5, 2006 the City Council authorized the City to hire an independent investigator to
investigate allegations concerning Councilmember Roger Hernandez. This action was in response
to an incident report (dated June 16, 2006) that was prepared by the City Manager notifying the
City Council of a possible hostile work environment created by Councilmember Hernandez. Per
the City Council's authorization, the City Manager hired -an independent investigator to conduct an
investigation. As the administrative head of the City, the City Manager is required to conduct any
appropriate investigations of any officer or employee of the City as set forth in Section 2-151 (c) of
the West Covina Municipal Code:
"Investigations. It shall be the duty of the city manager to make investigations into
any of the affairs of the city and any department or division thereof, and any
contract or the proper performance of any obligations of the city. He shall
examine or cause to be examined, without notice, the official conduct of any officer
or employee of the city. "
Special legal counsel was asked by the City Manager to confirm the validity of conducting an
investigation of a Councilmember who is not an employee of the City. In a letter dated September
8, 2006 from special legal counsel, case law was presented that supports the validity of the City
conducting an investigation of a Councilmember, regardless of the Councilmember not being an
employee.
In addition, the letter from legal counsel also refers to the Fair Employment and Housing Act that
says it is unlawful for the City of West Covina, as an employer to "...fail to take all reasonable
steps necessary to prevent discrimination and harassment from occurring." Therefore, the City has
a legal requirement to not only prevent discrimination and harassment from occurring, but the City
and its administrator, has a legal responsibility and duty to promptly initiate investigations of any
known or alleged instances of discrimination and/or harassment regardless of whether or not a
formal complaint has been filed.
In the same letter of September 8, 2006, special legal counsel advised the City Council that there is
case law, which promotes the idea that employers that initiate prompt investigations of any claim of
discrimination or harassment may avoid or minimize liability. Without an administrative
investigation, it would have been impossible to determine whether or not Councilmember
Hernandez' alleged acts are considered as harassment. By initiating a prompt and proper
investigation, the City Manager is protecting the interests of the City of West Covina.
At the December 5, 2006 City Council meeting, the City Council received a verbal report from
Richard Kriesler, Independent Legal Counsel, as to the status of the investigation. In addition, a
copy of investigative report was provided to the City Council. The investigative report was released
to the public upon approval of the City Council at the December 5, 2006 meeting. The City Council
was also advised that there is a current threat of litigation. The City Council was also advised that
any Councilmember should be careful about making any comments or taking actions either directly
or indirectly towards any person identified within the report, for it could be considered. retaliatory
and could place individual Councilmembers and/or the City at risk for possible litigation.
Additionally, the options available to the City Council includes, but is not limited to: Filing of .
report and taking no action or making no recommendation; a motion to censure; provide direction
for further investigation; recommendation for training; and develop guidelines limiting the time and
manner of Councilmember contact with -staff.
Reviewed & Approved by:
Andrew G. Pasmant
City Manager
Approved Via Telephone
Richard Kreisler