City Council - Regular Meeting

All right, let's go ahead and open up the meeting. It is 3.34. Madam Clerk, will you please conduct a roll call?

Tim Castillo? Here. Council Member Stieber?

Here.

Council Member Terry?

Here.

Council Member Welty? Here. Mayor Smith?

Here.

Mayor, you have a quorum.

Awesome. Any public comments?

Mayor, we have none.

Can I hand it over to the City Attorney? All right, let's do it. We are doing training.

Welcome, Mayor and Council, to one of three mandatory trainings that members of the City Council will be receiving during the next two years. This is mandatory harassment prevention training for local agency officials pursuant to AB 1661. It is triggered when you are an elected local agency official who receives a stipend or salary of any kind. It is required to be 120 minutes long. And just so everybody knows, we are on Zoom. This is not closed session. This deck and this presentation are a public record. There will be several examples throughout the presentation. I want to state it very clearly for the record that these examples are not representative of any particular incident that has ever occurred in the city of Canyon Lake or any of my other clients. They are for illustrative purposes only. I put a few, yeah, if we had thinly veiled examples from our recent past. So there are a couple of slides like this. This is the only one at the beginning. There's a few at the end. Because this slide deck is a public record and because it is evidence of our compliance with AB 1661, I did put all the mandatory information in a single slide. So if anyone wanted to check the compliance, it was pretty easy to locate. There are 10 modules that we're going to be going over. The first one is the question you may all be asking, why are we here? Then we're going to be talking about what the law prohibits. We're going to be talking about what kind of conduct is prohibited. We're going to be doing mandatory training under state law on identity expression and orientation. And we'll be talking about the recent divergence in state and federal law on this issue and why it doesn't matter to us. We'll be talking about abusive conduct. We'll be talking about the council's role when it comes to prevention, investigation, and resolution of harassment claims. We'll be talking about complaints in the Brown Act. We'll be talking about retaliation, which is actually, in my experience, the place that most people get in trouble. We'll be talking about exposure. You know, what's the liability to individuals and to the city? And then lastly, we'll be talking about all the cleanup items, including bystanders, records, and closing out the presentation. We are required to go for two hours. I will attempt to keep it interesting and fun. And if we just so happen to get done a little bit early, that's probably because you have been so efficient and not because of a lack of material. Everything required by state law is included within this training. So we got to cover those statutory provisions. So there are going to be a lot of references to specific government code sections and labor code sections in the presentation today. For example, this slide has one at the very top. Section 53237.1, subsection D sets out the requirements of this course. It is not expected that any member of this body is going to be capable of memorizing and reciting specific statutes from memory. I don't even do that when it comes to this stuff. The hope is that after these two hours, the council members will be able to recognize situations where they need to contact the city manager, contact the city attorney, if there's something that they've observed that's an issue. We're going to be going over remedies, victims, and we're going to be having a lot of practical examples. There is the ability to have local policy in the curriculum. So where there is a local policy, I mentioned it. The city has generally adopted state law standard policies for itself. So this is my fun opening vote. I want to tell you something. When I do this presentation normally, there's like questions and then reveals, and that's supposed to be a really fun and interesting thing to do. But I disabled those for our presentation today. So you will see some slides where it has a question on it, and then it also has the answer on it. Pretend like you can't see the answer, and we'll just go from there. So I'm going to one of the requirements of the training is to be interactive. So that's your cue that you'll have to look at me for a second. We're going to do a show of hands and I'm not going to call out individuals based on their vote, but just to get a sense of the council's understanding. One of raise your hand if you believe that this statement is true. If a person who's been harassed says they don't want anything done, the matter can be left alone. Who thinks that's true? Who thinks it's false? A single incident can never create a hostile work environment. Who thinks that's true? And who thinks that's false? Mayor, I didn't record a vote. False, true. so part of these part of the way these are phrased are to trigger casey uh so just just so we're clear mostly it's for training for everybody but i did throw in a couple fun ones that would make uh one of our our mayor pro tem a little argumentative uh three uh true or false can the city be liable for harassment of its employees by someone it does not employ so let's say member of the public comes the counter is harassing city employees is the city liable for that true Okay. Is the city strictly liable for harassment by a supervisor, even if it didn't know? True, false, true, true. All right. And then here's a fun one. A harassment complaint against a council member can be heard in closed session. True or false?

True.

True. Is it true?

Interesting. All right.

All right. The council's own training records are confidential personnel records. True or false?

False.

False. All of your participation certificates in this training will be public records. Five's interesting. We'll get to it. Why are you here? You're here because the legislature said you had to be. AB 1661, back from 2016, governs that every member of the legislative body and every elected official of an agency has to do this training, usually within six months of taking office and every two years thereafter. The duty attaches if you are paid. It's the same essential test as AB 1234. And I also think it's important. We'll talk. So this is one of the things that I added that wasn't in the state guidelines, but I think it's kind of important. Our city has changed. I think I went back to the budget documents from 2016, 2017. I think that's the right time period. And it was actually an open question as to whether the city was required to take this training. Because one of the thresholds that I didn't bother mentioning is that you have to have five or more employees. And the city had four full-time employees and a few part-time employees. No. So they didn't have an interpretation at the time because it was a brand new law. Subsequent to that, it has been interpreted as five employees of any organization. level FTE size. So it can be five part-time employees. It can be three full-time, two part-time. Um, but at the time the city didn't know because the city literally had four full-time employees a decade ago. Okay. Um, almost everything was contracted out. Um, and the city has changed a lot. The city has definitely changed a lot in the last four years. Um, public safety departments, both are now performed by city personnel, um, Um, fire department been operating since 2022, uh, firefighter bill of rights applies. And we'll talk about how that can impact interactions you may have with members of the fire department. We now have a police department police officer bill of rights. Uh, it affects how we interact with employees of that department. And just to like, give you kind of a preview. We're going to talk about the council's role in personnel investigations, specifically that you don't have one when it comes to personnel investigations. But one of the things that I want to make sure that you are all aware of is let's say you got a complaint about a police officer. If you start trying to investigate, you may be violating their pro bar rights. And so that's not something that has typically been on this council's radar before, but now something that I want to make sure you're aware of and it's timely. So glad we're doing the training. And then lastly, we'll talk about what are the council's levers. And these are things that the council knows quite well. Budget, staffing, and oversight. It's not personnel decisions. The council decides who to hire in two instances, city manager, city attorney. The remaining personnel decisions, discipline, dismissal, hiring, those are delegated to the city manager and to the supporting officers of the city manager. What is the law prohibit? You've all heard the term quid pro quo. That's the easy one. This for that. A job benefit conditioned on submission or detriment threatened for refusal requires authority. So the most common example of this is a sexual harassment scenario. which is usually engage in some sort of relationship with me and I will advance your career. That's the typical example of quid pro quo, but it doesn't have to be that. It can be, you know, help me, you know, let me use the copier over the weekend and, you know, I'll get you a promotion. That's a quid pro quo. It's not necessarily harassment, right? But that's an example of a quid pro quo. And we cover that in AB 1234 as well. The other one's hostile environment. And this is the one that I think gets the most discussion nowadays. I think most people, okay, so when these laws were passed in like the 70s, people had a hard time understanding why quid pro quo was wrong. There's a lot of case law out there where you read the cases. You don't say things don't age well, right? Like there are certain movies and shows and you watch them and they're a little cringy is the word, right? You read some of the sexual harassment cases out of the 70s and 80s and you go, I can't believe that like this was a serious conversation. And that's just because that's where we are now, right? So quid pro quo got developed. I think most people understand it. They understand it's wrong. Hostile environments where we get into the bigger discussion nowadays. I have a question.

Yeah. So on quid pro quo. So Susie and Sammy have this really supervisor employee relationship and they love their quid pro quo. It's working for them wonderfully. Nobody's complaining, right? Everybody's happy. Yeah. However, Steven over there doesn't get a promotion. And Sammy does. Doesn't Steven also have rights under Quick Pro Code?

So that is a fantastic example, Councilmember. And there is literally a slide on that exact scenario. And we will be covering it. We don't have to use Steven as the example. You know what? That was unwelcome. But my name is not a protected characteristic, as it turns out. One of the things I'd like to point out here is that, so it's unwelcome conduct because of a protected characteristic and severe or pervasive. So I say note the disjunctive, severe or pervasive. It could be a very severe single act. One incident can create a hostile work environment. Or it can be just a long accumulation of little ones, little comments, little actions, both those things. Now, you combine them, and it's pretty clear. The other part of this is that it's unwelcome conduct because of a protected characteristic. And this is also a part where sometimes we get a little bit hung up. The protected characteristics will have the chart later, but just not liking somebody, that's not a protected characteristic. So being mean to someone at work doesn't necessarily create a hostile work environment in the statutory sense. Still probably violates the city's personnel policy, still probably violates other provisions of local regulations, but it doesn't necessarily rise to the level of a state or federal cause of action. And I promised you a chart with specified people and characteristics. I think I have a slide coming up on this, but I don't like reading from prepared notes. When we do something, I think it's a little more fun to have a conversation. So first off, I wanted to point out, thank you council member for asking your question. No one asked to raise their hand. when we're doing a training like this informally, um, unless you want to, uh, if you want to jump in, ask a question, clarification, that's fine. The only request I have is that, like I said, it not be thinly veiled legal questions about actual existing scenarios in the city. Um, could be different city, just not one that I represent. Um, So, and we're going to spend a lot of time talking about FEHA, okay? The Fair Employment and Housing Act, right? And the reason we're going to spend a lot of time talking about FEHA is because although there is a federal version of all of these rules, the stricter always controls, right? And this is not going to shock you, but California state law is stricter in every meaningful way over federal law. So I'm going to give you the federal examples because I'm required to for the purposes of the training and because I think it's important for you to understand that there's differences. However, I do need to understand that when it comes down to what are our actual obligations, we're pretty much following California state law. Protected classes, race, ancestry, genetic information, gender identity, reproductive health decision-making, military and veteran status, gender expression, marital status, physical disability, religious creed, color, mental disability, sex, age, sexual orientation, gender. You'll notice different from gender identity. We'll talk about that. So that's part of the training. Medical condition and national origin. And so I'm going to give you an example. of two questions, and again, this is not something that actually happened, but two questions that could have happened in a personnel interview that we were brought in to address. So one of them was a person who was applying for a job, and let's say that person's first name was Seamus, right? And the person in the interview said, Seamus, is that Irish? Are you Irish? Okay. Relatively innocuous question. But now you're asking a job candidate about their national origin, right? Again, it's not the thing that would normally raise a red flag for most people walking around common sense. but it can lead to liability for the agency. And it's an example of the kind of things you can ask. One of the other things that I saw was the person observed what appeared to be a military tattoo on the forearm and said, hey, did you serve? That's not a question we're allowed to ask during an interview. You're not allowed to discriminate. Now, there are certain provisions in the application process where there may be preferential treatment for veterans, but that is separate and apart from the interview and the other decision-making processes that you have here at the city. It doesn't just cover employees. It covers applicants. I was talking about job interviews, right? Also covers unpaid interns and volunteers and people providing services under a contract. I told you that California is broader. Here are a couple of examples. The biggest one is when it comes to supervisor liability. We talked about strict liability. You all got that question right. There's no defense. There are affirmative defenses under federal law, Title VII, for supervisory liability. If the employer had training, gave the training, responded promptly, these are all things that the employer could use to show that they don't have liability. Taking notes over there? In terms of whether one incident under state law, yes. Federal law, that's a little more challenging. And then damages are significantly higher under state law. There's no caps on certain damages. So if you were a plaintiff's employment attorney and you were deciding to sue employers, would you pick state law or federal law? Yeah. What would you pick Mayor Pro Tem? Why?

Well, I think. Okay. Broad or low.

So I think that's interesting. So I think state law is friendlier to plaintiffs, but I think employers are more scared of federal law. because I think a lot of employer defense firms aren't as familiar with federal employment law in California. And so, you know, I know that when we do civil litigation defense for our clients, we always want to drag people into federal court because generally speaking, we're more comfortable there. So I think it's a tactical decision, but generally the point of this was California law is broader when it, when it comes to these kinds of things. Standards turn on who engaged in the conduct. So this is going to be under state law. So if a supervisor engaged in the harassing conduct, the city is liable regardless of what it knew or did. Strict liability. That's the definition. If it's a coworker or non-employee, the city is liable for negligence. If the city or its supervisors knew or should have known and failed to act. And then an individual employee has personal liability for the harassment that they commit. The city should have known usually means someone in authority was told and didn't do anything about it. So when we get to that part of the training, you'll notice that what I tell you to do is report it. And don't ever tell someone that you'll keep it a secret or just between you and them. If they tell you that I got to talk to you about something, say, just so we're clear, I have to report it. Anything you tell me.

Question is, which do we volunteer as county council members? Are we supervisors?

It's an excellent question. And guess what? We got a slide.

Wow. All right.

Hypothetical one. Written policy. So this is an example where normally I would have you predict it, but I'm just going to put it up on the slide. A city is sued after two supervisors harassed a subordinate for years. Its defense is that, hey, we had a policy that you can't harass your subordinates. The policy was never distributed to that department, and neither supervisor was ever trained on it. So I guess my question is, where do you think the liability is on that one? Do you think the city's liable?

Yeah.

understand you're correct but for the wrong reason this is a trick it doesn't matter it doesn't matter whether they have a policy or not it doesn't matter if they train them or not the city is going to be liable because the supervisor is engaged in the harassing behavior right strict liability that being said you still want to have the policy you still want to have the training you still want to respond to it because those can limit damages Right. So liability and damages are not the same thing. I could hit your car at two miles an hour. I could hit your car at 80 miles an hour. I'm liable in both circumstances for crashing into your car. But your damages are going to be very, very different. Right. So there is wisdom in hitting the brakes is what I'm saying. What happens if they win? Back pay and front pay. Lost past and future earnings. So, you know, for example, if they were terminated when they should have been promoted, they may get their pay back to when they were terminated and they may get additional pay because they should have been promoted. Reinstatement. Emotional distress damages. And this is shocking to me that there are no caps on damages under FEHA for emotional distress damages. Injunctive and policy relief, city can be ordered to do something. Attorney's fees to the prevailing plaintiff. So you got to pay our attorney to defend the city. You also get to pay the plaintiff's attorney. And then punitive damages, which are available against the individual for the harassing behavior, not available against the city. The city can assume those if it chooses to do so. But you're going to have to make specific factual findings on that. I did want to point out the asymmetry. The attorney's fees go to plaintiffs in these cases. So if the city successfully defends a case, gets a MSJ, which you will never get in an employment case because they're extremely disfavored, or wins at trial, you're not going to be filing a motion against the employee that employers attorney's fees. So even if you win, you still have to pay your attorney and your experts and all the other costs of litigating the case. And if you lose, you got to pay those plus the other side. What that does is that creates, you know, one of the things that I'm always, when I'm talking to my clients and when they're talking to members of the public, there's a very negative perception about settling claims and lawsuits. But the fact of the matter is is that this deck is stacked by state law against the city. Especially if there is a fact pattern where liability is clear or is almost certain, there is not a lot of incentives to try to litigate it because you're not going to get an early disposition on a demur. You're not going to get an early disposition on a motion for summary judgment. You either settle it or you take it to trial and taking it to trial is expensive. So a lot of employers and employment practices, insurance, they will look at it and they will say, look, we're 90% sure that you don't have liability or damages, but it's going to cost $150,000 to prove that we should consider settling for 25 or 50. And that hurts to spend the public's money on selling a claim like that. But depending on the fact pattern, it may be a correct business decision. This was a new one. So while I was doing the training, I didn't realize that the statute of limitations was three years, but three years to file a complaint from when the alleged act occurred. So let's say someone claims that they were unlawfully terminated. discriminatory reason right the city has potential liability for three years following that that's a long time that means something that happens today we may not even get the letter from the civil rights department at the state until 2030 Conduct, module three, we're done with 10, we're done, great. Severity or pervasiveness, we talked about. We're gonna go into some examples. The harassment can be verbal, physical, or visual. So verbal's pretty straightforward. Slurs, epithets, derogatory comments, propositions, comments or jokes, rumors, starting a rumor about somebody can be all forms of harassment.

Physical harassment in the form of touching,

blocking their ability to move salting physical interference with their work and then lastly visual uh this these are exact like the the visual ones these are the kind of things that like you read in the 1980s cases um like an incredibly inappropriate poster being put up at work um I've seen pictures of fellow employees that have been modified. AI is a real problem nowadays. And so all of those things means social media saying derogatory comments about your coworkers in a public forum where others can read it. Could be harassing behavior. It could create a hostile work environment. What counts as the workplace? So I tailored this to the council, right? Because this is AB 1661 training. And we haven't had this issue here, but you see it happen in a lot of cities, right? where you might have a executive city manager, general manager, maybe a finance director, finance directors get a lot of arrows for some reason. And you have council members who are critical, not of the policy, not of the budget or the question that you're being asked, but it becomes a personal attack on the, the individual employee. And you have to remember your city manager is your employee collectively as a council, right? City attorneys, or the other one, city clerk, chiefs, finance directors. Um, I've seen one, uh, I'm sure, sure. Casey has some examples that come to mind, but you know, I've seen instances where, you know, you've had a council member that looks at a city manager or chief and says, when are you going to retire already? Right. Okay. What's the hook age? Right. Um, and instead of saying something like, I'd like to schedule a performance evaluation in closed session when those criticisms can be heard by the body with the employee. Um, the other one that's coming up more and more again is the social media. And that's why it's been put on here. Um, the AI pictures, uh, It's campaign season. People are going nuts. And one of the things that keeps the city attorney up at night is sometimes members of the public get fixated on staff. They're upset with the city policy. They're upset with the city practice. They have every right to criticize policies and practices and They have a constitutional right to criticize public officials. There's really not much actionable against them. Although the city, like I said, may have a responsibility to protect its employees from harassing behavior. But the thing that I've seen that keeps me up is I've seen these AI altered images of city managers, police chiefs, fire chiefs. They get posted online, and then they get shared by a candidate. They get shared by an elected. And now the question is, if that person gets elected, they're walking liability. as to that employee, right? If, um, it's someone who's currently on the council or on the board of directors, uh, it's, there becomes a very strong concern because even legitimate complaints about performance, now they get dragged through the lens of liability and harassment. So it's one of those things to be very cognizant of. Um, if you, you know, The public are going to engage in criticism. There's constitution protected abilities for them, but the city is an employer and the council working as a body is this. So to answer your question, by the way, individually, you're not a supervisor collectively. You are right. Is my opinion. No case laws turned on that though. And here's what I'd say. You don't want to be the first one. Because I suspect, based on how strict California law is in this area, I have some confidence at how the court will come down. It's not going to make you happy. Any questions? Section 1293 sets our harassment standard. The reason for this is because we had Brooks v. City of San Mateo. which essentially, to my reading, took the much looser, more employer-friendly interpretation that exists under federal law and construed it with California law. The legislature didn't like that. And so they literally wrote a government code section that goes line by line setting what the standard is for courts to apply. So they made it very clear that a single incident can be enough to create a hostile work environment. One incident. The standard does not vary by workplace. That was another thing that had been discussed. Look, there's a big difference between the accounting department and the public works department. We talk different. We interact different. Not under the law. Same standard applies to both. No need to show lost productivity. You have to be that a reasonable person would find it harder to do their job. Not that they actually weren't able to do their job. A formal action as well can look like evidence of harassment. And this is one of the things where the city attorney's office really has to have credibility with city management because what you will find is that human beings are the same wherever you go, right? And oftentimes you may have perfectly legitimate actions being taken by management that nevertheless subjectively might be masking discriminatory intent. And you're not going to know it until you get the claim and you ask your client for all the underlying documentation and And then all of a sudden the group chat and the memes and the social media posts and all of it come to light. And you go, oh, no, we signed off on this discipline or we signed off on this termination. Right. So the point is, just because you. launder it through a legitimate process does not cure the underlying discriminatory intent or effect of an action. So giving someone least desirable assignments, excluding them from meetings, denying them a discretionary request, a bad evaluation, all of those in and of themselves, I mean, getting a bad performance evaluation, Right. And this is hard because the thing is you need all of these tools to manage your city. You need to be able to give effective and accurate performance evaluations. You need to be able to deny discretionary requests in order to keep costs down for the city. You don't need to have every employee in every meeting. It's inefficient. They could be doing other work. Some employees can get a recap email.

Right. And then lastly, not everyone can have the best assignment.

police and fire, or 24 hour a day jobs. But at the end of the day, those individual things can be used to mass discriminatory intent. And under state law, all they have to do is plead it to get past that initial pleading stage. So we talked about non-employee conduct. A member of the public comes and makes comment. So this is an example. Let's replace counter and let's say public comment dais. because this is one that is very popular conversation in the city manager communities and during election time, the city clerk community, okay? Because someone has to hold the line on ballot designations and argument word counts and city clerk is the person under the code responsible for doing that. It's a position that normally isn't on anybody's radar. but every other year uh sometimes comes under fire right so let's say remember the public comes to every meeting of the city council and they make critical comments about your city attorney right we'll use me as an example um they're allowed to criticize me that's fair i'm a public official uh my performance uh it is fair game my actions are fair game now what if they uh say and you know he really needs to comb his greasy hair knowing that i am of italian heritage right now we have a comment derogatory comment verbal we talked about that based on national origin or perceived that could potentially be the creation of a hostile work environment. Right. And so this is one of the things where mayor, you know, we have our rules of conduct for the council. One of the things for public comments is you cannot attack a member of staff in a way that is discriminatory or harassing. And so one of the things that we'd want to make sure happens, if you did have a member of the public, and that whoever's in that chair feels is engaging in discrimination or harassment from the podium, it would be appropriate to stop the comment and turn to the city attorney, say, Mr. City Attorney, I am concerned that the comment that is being made may be harassing or discriminatory, may violate our policies. Can you give a recommendation on what to do next? And so that could just be an admonishment to the speaker. Please, you know, confine your comments to what's on the agenda and not make personal attacks. That could be discriminatory harassing. It could be times up. It could be removing that person for being disruptive. But the point is any of those actions will demonstrate that we have recognized the issue and taken action. The other side of that is we cannot engage in viewpoint discrimination right so let's say and you know this happens sometimes you get a change on the council maybe the mayor doesn't really like the city manager or the city attorney right you can't let someone criticize that person just because you're not a huge fan well mr city attorney what about if they attack me as a council member you're not an employee of the city You're an elected official. I would still say, Mayor, that it's appropriate to stop a public speaker who is engaging in racist, sexist, any commentary directed towards a member of the public, a member of the audience, staff, regarding a protected characteristic. I still think that's acceptable. I still think it's defensible. I would take that case every day. I cannot say for certainty that the city has a duty to protect members of the council who are not employees of the city for this purpose from comments directed at protected characteristics.

The mayor says, sir, could you please refrain from your comments about racism, gender?

I would say that your comments are inappropriately attacking a member of staff based on a protected characteristic. Please direct your comments to the matter that's on the agenda. Same thing.

You're engaging in personal attacks that could be creating a hostile environment. please direct your comments towards policy or other concerns that are on the agenda if they complain to the way i voted life goes on yeah i mean absolutely here's a question what happens if they see a police officer sleeping in his car right and they come up in the dais they say i saw officer peterson sleeping in his car well let's do this what do you think you're the mayor that year what do you do i think yeah

Or fun if I don't tell you everything.

If they said, in general, I would let them go on. If he said a person's name and I said that's more appropriate to take up with the city manager in private, that's what I would say.

Let's say there's no names. Let's say someone comes up and is like, look, I got a real problem with a member of your police department. I caught them sleeping out in a cruiser in front of City Hall. In fact, I took a picture. What I'd recommend is if you had somebody who came to the dais and had a specific complaint against an employee, one, I would validate it. And I would say, that's a very serious concern that you've brought to us, right? I don't want to just shut them down. But we are not the appropriate body to process that. You can refer someone to staff. Presumably this is not on the agenda, right? And so you, one of the things you can do is refer a public comment or staff. And what you would say is you can contact, you can talk to our city manager. I'm going to ask him to take you off to the side, get your name and contact info. And we will be contacting you to follow up on this issue that you've raised and leave it at that. I would not let them go on and on, but you don't want them to. The thing is they keep going. They're going to say something that's going to get them or us in trouble. And at the end of the day, maybe we do have an employee that has an issue, right? I don't want to assume that they're lying or that they're wrong. They might be right. You know? And what you don't want to do is you don't want to taint that complaint or that investigation by injecting potential political bias into the process because a employee, an employee attorney of the caliber of the mayor pro tem is we'll make hay of that because it's a public record. The employee is going to know that someone did this, put them on blast. And if you, and if you, you know, fall into it and say, you know what, that's absolutely unacceptable. We're going to punish that employee. Now you've predetermined the outcome, right? The other thing we say, you know what, I'm going to get to the bottom of this myself. You have no role under the personnel rules to investigate complaints.

And it's a police officer.

They have povar rights regarding investigations, being given notice, being an opportunity of a council president. So all of those things. Let's take it a step further. Now we're talking. I'm going to tell you what's more likely to happen. We're using the example of someone with a bias. We've had a couple of excellent public speakers come and give very impassioned comments, right? But that's not actually the normal route for you guys, is it? It's a phone call. It's a Facebook message. It's a text, right? Maybe it's someone you know. Maybe it's someone who knows who you are. Right. And they send you a text message, not at the dinosaur, but to you, does anyone want to volunteer for, let's say you get the text message and let's say it's a picture like, Hey, council member, I never saw, I never saw any other employees sleeping in their car till now. Right. They send you a picture of what appears to be a city employee sleeping. I don't want to pick on any particular department. They send you the picture. Yeah. So I think that that's correct. So what I would recommend you do is respond to that individual and say, thank you for bringing this to my attention. I will ensure that it goes to the city staff member responsible for reviewing and investigating issues with our employees. You're not promising to take action. You're not being defensive or dismissing them either. You're taking the complaint seriously. You're getting it to the right person. You take a screenshot of that. You send it to the city manager and then you stop talking about it, right? Because you don't want your communications to become part of the discovery that occurs later. So don't text, you know, one of your friends on the council. It's like, you'll never guess what I just got, right? Anything else?

We've got to talk into the mics if we are talking, just so you know. So when you ask questions, they can't hear you, but they can't hear any of the questions that we're asking. So just make sure you turn your mic on.

Great. And hello to the fine members of the public watching the meeting.

Oh, I spelled, I broke disposition twice. Okay.

Harassment cases rarely end on summary judgments. This is one of the things I was talking about. So most litigation that agencies get involved in, there's three types. There's trip and falls. There's what I call constitutional claims. That's usually police type cases. And then there's employment cases. When it comes to trip and falls... When it comes to constitutional cases, those usually get resolved at motions for summary judgment. You engage in a bunch of discovery, which is you ask questions under oath. You receive certified documents. And you get to what are the facts, what is disputed, what is undisputed. And if the facts are undisputed, you can submit the judgment to the court without having a trial. That's how a lot of cases get resolved other than settlement. Settlement's usually the number one way cases get resolved. harassment. So California law specifically says harassment cases are rarely appropriate for disposition on summary judgment. They are telling the judges that we don't want you kicking these cases out. And that is a very real practical effect on employers because that raises the cost of every case. because your only realistic outcomes are settle or trial, settle or trial, settle it or try it because you're not getting out on demur. Guarantee that. And you're on, you're extremely unlikely to get on MSJ to the point where when our firm is overseeing special labor council and they ask us, should we do an MSJ nine times out of 10? The answer is no. Because it's not going to even be, it's not going to be successful. It has no chance. So why waste the money? Because remember, the other side is going to get their attorney's fees if they win. So you're increasing our costs and you're padding their bill that we may end up having to pay for in the future. You're also increasing the cost of any potential settlement. Module four, gender identity, expression, and orientation. This is built on California authority. We are going to have a little discussion about recent changes in federal law on this. It doesn't affect how the city of Canyon Lake operates because we are in the state of California, but we'll still talk about it. This is a mandatory training section that has been added recently. These are the definitions that California law uses, provided verbatim without editorialization. Gender identity is a person's own internal understanding of their gender. Gender expression is a person's gender-related appearance or behavior, whether or not stereotypically associated with their sex assigned at birth. And three is sexual orientation, homosexuality, heterosexuality, or bisexuality. So all of these are protected classes under Government Code 12940, subsection J. And the city is now required to post the Civil Rights Department's transgender rights in the workplace poster. You've all seen workplace rights posters. They just keep getting bigger and bigger. This one got added recently. Federal guidance has changed. So federal guidance used to roughly track where state law is on this. Had an administration from 2021 through 2025 that issued EEOC guidance that roughly tracked California law on gender identity, gender expression, and sexual orientation. I was challenged by the state of Texas. They sued the EEOC, wrote in that guidance. It vacated the sexual orientation and gender identity portions of that guidance. And so I would say that it is unclear at the federal level exactly where it's going to land. So district court decision, I assume there's going to be more conversations on it. But what you find is that the current Department of Justice and administration is not interested in defending that EEOC guidance. So you're not going to see this go to the Supreme Court. However, in California, it doesn't matter what happened with EEOC guidance and federal law. We still follow state law and the provisions of state law are unchanged on this issue. Um, our obligations have not been altered and what it looks like in practice. So these are the things that if you have a takeaway on this module, it's use the names and pronouns that the person uses and asks you to use. Uh, if you make a mistake, give yourself a little bit of grace, but correct it and move on. Don't make it a whole production. It's my advice. Uh, don't require proof, uh, Don't ask about their transition if you believe they had one. And don't ask about their medical history. It's not relevant in the employment context. And then lastly, don't relay questions. The gossip chain is where agencies get in a lot of trouble on this. Again, not relevant. All right. Any questions?

I don't know this, but.

yeah go for it i'm sure i'm streaming in there i said i'm sure i'm streaming in there yeah module five abuse of conduct we're at the halfway point for those keeping scores doesn't feel like it does it abuse of conduct three elements single act rule in the line against legitimate performance management Abusive conduct requires all three elements, in the workplace, with malice, and unjustified. These all seem pretty straightforward. It's not just harsh. It's not unwelcome. It is an element. And it's a pretty difficult one to prove, actually. And it has to be unjustified. I mean, it's possible to be mean to somebody and they had it coming, I guess. Hostile, offensive, unrelated to the employer's legitimate business interests, including performance standards. So here's the thing. If I give you a fair and accurate but harsh performance evaluation, that's lawful. OK, where I cross the line is when I'm doing it with malice and it's actually hostile or offensive. Right. So, you know, you could have a conversation with an employee about physical fitness and the requirements of the job. But it would be inappropriate to make comments that are maybe like body shaming or age shaming when you're having that conversation. I put up here the difference between harassment and abuse of conduct. Abuse of conduct is in a whole other level beyond harassment. It doesn't have an independent cause of action, but it is extremely persuasive evidence of a violation. Here are some of those examples I talked about. A candid evaluation. a document improvement plan, holding people to response standards. These are all things that are important to the city management. What could be, right, ridiculing a person in front of their peers, assigning work that you know they will fail at, withholding what someone needs to succeed. Public criticism of a named employee, and this is where the council comes into play again, bring this back to council training, right? Public criticism of a named employee where the employee cannot or feel pressured not to answer. And the record is permanent, right? So our city council meetings are recorded. Um, your public statements and social media posts and other things may be required to be preserved under the public records act. Um, you have to realize, and I think we get here in a slide or two. I know you all know that you're just people. I see you when you're interacting with each other. And when you leave here, some of you are fathers, mothers, grandparents, right? Coaches. But when you walk onto this property, you need to understand that for the employees of this organization, You're much more than that. Um, and I think I have a slide on this too. They are not going to feel able to contradict you. Um, and so even if you're talking about like city manager or the city attorney, right. Um, even if you were directing criticism at me. And I'm not saying you can't question the way I'm doing things or ask things to be done differently. But I'm saying when you're in public and you're directing that criticism at your employee, your city manager, your city attorney, and certainly every other employee here is not going to feel like they are able to contradict you publicly. That is a power imbalance that has the potential to To create this type of liability that I've been talking about and I've seen it happen in other jurisdictions. Um, five behaviors. And again, I, I, I got rid of the, you know, slow roll. Um, but the first three, we talked about these, um, number three, I thought was interesting. Cause that's actually does come from a case looking at someone and calling them the mistake. You know, or giving them a nickname that relates to their inability to perform things correctly. Right. Or turning their name into a verb within the context of your work group that becomes synonymous for failure or not getting something done correctly. Oh, man, you really Steven to that. right which means successfully accomplished it efficiently right um but you know we have we have a fire department now right fire department they all live together so not only do they respond to fires and save people's lives and medical emergencies someone's got to do the dishes at the firehouse right so what happens when one person asked to do the chores and clean up for the crew right and they're assigned that by the captain or the chief is that harassment does that okay so what's your what's your feeling on that one

I don't know the culture, but there's some parts of military culture where the newbie gets those jobs, not because you're being a new person isn't a protected class, right? I mean, and then when the other new person comes in, you don't have to do it anymore. And that's, they call them the probie, right? Yeah, probie.

Not a protected class. Okay. Would it make a difference to you if that firefighter was the only woman on the

I think it opens the door to criticism, Claire. They're the probie.

Every other probie did all the chores. What do you guys think? Counselor? The new probie is a female. And she gets asked to do all the chores like every probie before her. I'm asking from the legal standpoint. Okay, I think if you have a documented history, that that is the practice. Even better if it's written down. I mean, look, there's nothing wrong with saying that the newest employee on the crew does the dishes. I don't know how the chief runs a shop, so that's not really clear. These are not examples from our fire department. This is me through my experience the last two decades of doing this. But it does make you think, because you pause now, right? It's the same person in terms of being the new person. It's the same job requirements. But because they are a member of a protected class, now you go, ooh. And I'll tell you, that's probably easily defensible. Frankly, that's probably easily defensible. I wouldn't have too much. It's hazing where we get into trouble, okay? It's when you make the new person eat dog food or when you intentionally screw with their gear, right? And that person is a member of a protected class. That's when we start getting claims and liabilities. And the fact of the matter is that the hazing should not be tolerated regardless of protected class. So this is a work environment, right? And that's honestly one of the things that we train the most with staff and supervisors is that if you run this place by the book, like it is a job and an employer, and this is not a job, social scene or a frat house or any of those things this is the job you come to you report to you do a job well you're not going to run into most of these problems okay nodule six someone asked me if you're a supervisor i think that was council member wealthy you're not um like this is a council manager form of government There is a real power differential with council members though. So just because you're not anybody's, technically anybody's boss here, you kind of are, and you feel that, right? And so we're going to sort of dive into that because I think it's important. This one? Yeah, it's pretty fun. So you, and I want to be really clear about when I say you, that is the collective you, not the individual you. direct the city manager, not the staff. Under the municipal code, which the city council adopted, the city manager holds administrative authority over city employees. It's also true under state law, okay? What the council does, you set policy. Once a month, you come in here and you vote on ordinances, you vote on resolutions, you vote on policies and regulations. You approve the budget. You say, this is what we're gonna spend money on. These are the programs we are going to run. you appoint and you evaluate the city manager who you then direct to accomplish all of those goals that you set once a year, right? What the city manager does. He takes that policy, that budget appropriation authority, those goals, those regulations, all of it. And then the city manager directs, assigns, evaluates, and disciplines the staff, right? The administrative authority runs through that office. It is inappropriate for members of the council to direct staff to do or not do any particular act. Where the line is. Council member directs the staff, pressures staff, or criticizes staff. is walking outside of the governance and policy setting role that you have established for you under state law and the city's municipal code. Request for information, generally speaking, should be brought to the city manager. So does criticism. So does anything that the employee could reasonably hear as an instruction. And that's where I get to this next slide. So this is one of the things that it's again, your regular people, 29 days a month. I know, I know your city council members to everybody in the city. And I think it's probably laughable to claim that you're only city council members one day a month, right? Your city council members every day. But when you're here, you are not the you that's at home with your family, the you that's you with your friends, even the you that's you at work. You are a member of the legislative body, the highest body of this city. And so you set how much the city manager makes. You can fire the city manager as a body. You can discipline the city manager. And everybody in this building knows it. Right? The most common trip up that we get is I was just asking a question. I didn't tell them to do anything. I said, Why on earth would you plant white flowers in that garden when you could have planted teal blue, the color of Canyon Lake? I didn't tell them to go out there and rip the flowers up and change them. Well, I have to find out what the exact color of Canyon Lake is. I was just asking a question, right? But the truth is, Maybe you heard a question, they heard direction. And it's reasonable based on the power dynamic of the council and the employees to understand it that way. A preference is direction. A question is an instruction. And you have to be cognizant of that. The practical rule is you need to understand that every employee in this building, their default is to say yes to anything that any five of you want. They want you to be happy. You're their boss's boss's boss, right? And think about whether you're going to ask it at all. That's why generally the best course is to go through the city manager. If it's a legal question, obviously you come to me. The city manager can take your question and translate it into an actual question. Or if in their judgment, based on your question, they feel that there needs to be a change, they can translate that into direction.

city manager is authorized to give direction to staff any questions i have one yep and you might be getting into it but what if um a council member and staff were talking about an event that happens every month, every year, you know, so on and so forth. And that staff wants to really join that council member or on behalf of the city to be able to attend that event. And so you're kind of talking a little bit, you know, the supervisor, well, I guess the council member would be kind of getting into more details about the event. You know, I think this would be good if you, We're there. You can do this. You can do that. But you're really just kind of discussing the overall. And would you leave that as talk to your supervisor about attending or how about I make a referral or a comment to city manager? Like what's the best practice? Sure. From a council standpoint, when staff is interacting with us wanting to be involved.

It's a good question. So first off, I don't think there's anything inappropriate with having a good relationship with the staff. In fact, that's great. Right. And in the context of the question, again, we're assuming this isn't a thinly veiled legal question about something that happened here. Um, but, um, in the context of the question, it sounds like, uh, the staff member and the council member both have an interest in increasing that staff members presence in the community or their professional, uh, development. Um, I don't think there's anything wrong with giving a staff member information about an event that's upcoming, um, where you could get into some trouble. Right. Is if in the context of your power dynamic, um, a reasonable employee would feel that they are obligated to attend this, and it's not within their job description. That's where you could potentially get into some issues. Um, I think your idea of saying, yeah, you know, talking about the event and explaining it and then saying, you know, if, if you're interested in coming, talk to your supervisor. And I think it would be perfectly fine for you to drop a line at the city manager and say, Hey, I was talking about this event with this employee. Just, just so you know, they may ask to attend decisions, yours. Um, those seem like perfectly reasonable things to do in those circumstances.

Thank you.

But you got to be careful, right?

Yeah. And where I was leading is because when you start talking about what you would, oh, you would be great here doing this, that it's almost to me a form of direction without stating you had to go. But this is what your expectations are when you're there.

Yeah, I know. And we sort of talked about that. It's it depends on the context. It depends on the relationship, you know, between the council member and the staff member. All those things come into play. I bring it up because I know you are all very cognizant of this. Not everyone is. And it comes up a lot in other communities. Okay. There's one thing after this two-hour training that everyone remembers and walks away with. It's that if someone comes to you with a personnel complaint, okay, you must not do don't start investigating it. That's, that's the one thing that I'm going to ask you. If someone comes to you and texts you, calls you, walks up to you at a city event, however, they reach out to you and tells you that they have a personnel complaint. All right. One, you tell them that you're going to have to pass it along to the city manager. Unless it's about the city manager, then you contact me. Do not promise them that you are going to keep it confidential and not tell anyone because you have a duty to report it to the city. If you don't, we're going to be liable as an agency and you're potentially personally going to be liable. Right? So you can't promise them that you won't tell anyone, but you can say that you will only share it with the people who need to know. So you can tell them that I will do everything I can to keep this discreet, but I am going to report it to the city manager. It's a very serious thing that you've told me and it needs to be looked at. Right? I strongly recommend that you write it down the same day, the exact words that were used, the dates, if someone else was present. Our memories are terrible. I think a lot of us inherently know that we can't remember what we had for breakfast three days ago. Some of us can because we have the same thing every day. But I think Casey can back this up because she deals with people's memory on a daily basis. Some of you may as well in your own professional careers. But witness testimony is one of the most unreliable forms of evidence that exists. When someone remembers something, they're not remembering the thing. They're remembering the last time they remembered it. That's how the brain works. Writing something down contemporaneously is one of the only ways to effectively, in my mind, maintain some credibility on issues like that. Doesn't mean they're lying. Doesn't mean they're trying to lie. It just means your brain will drift. Route it the same day to the city manager or the city attorney. Or both. If it's about the city manager, send it to me. If it's about me, send it to him. If it's about someone else, send it to both of us.

Email's okay for those?

I would encourage it.

It's not public information.

Get it down in writing that you submitted it. Show that you complied. It's good for you. It does both because now you've written down what was said. And you've documented your compliance with the reporting.

And it doesn't normally fit into the PRA request because it's the person that.

That is going to depend on the nature of the complaint and where it lands. But generally speaking, if you're going to send it to me for the purposes of looking at it from a liability perspective, it may be privileged. But I can't promise that it'll be confidential forever. This is good advice. Generally, we've had some conversations about public records after quests last couple months. You should generally assume that every email you write, every text message you send may at some point be released or read aloud.

That's why all of my emails are so formal, even though mine are usually privileged.

I did want to put in the public safety note here. Remember I said, don't investigate it. Let's say someone comes to you and says, hey, like there's a firefighter and they're doing something wrong. If you start going around questioning people, may you say, you know, I'm going to go talk to that. I know that firefighter pretty well. I've seen him a few times. I'm going to go talk to him. You might be triggering their interrogation rights under FOBAR or POBAR. That's why you report it and then you're done. uh request for silence she says a city employee tells a council member that her department head makes comments about her body and touches her back i'm telling you because i trust you please don't tell anyone small town and i need this job the next 60 seconds are going to decide whether we're going to be writing a big check or a small check Commit to your exact words. I want you to think about what you say. I want you to think about what you say right now so that when that happens, and it may never happen, I hope it doesn't happen, but when or if it happens, you don't have to think of the words. You know what they are. What you tell that person is, I appreciate that you trust me. I am going to only provide this information to the people that need to know it, but I'm required to report this. to the city so that it can be looked at because it's a serious allegation. That's all I have to say. I can't keep a secret about this. Secondhand information still comes for prouting. Speaking of small towns, right? I told you sometimes people will reach out to you. Sometimes you're going to get secondhand information. Someone's going to come up to you and say, hey, did you hear? So-and-so has been making comments about this employee and touching her back. They're not witnesses to it. They heard about it. Same thing. Reported. It may not be credible, may not be true. The duty to investigate does not arise because of factual accuracy. It's the complaint that it exists at all. We often will do a screening, an early evaluation to determine if there is possible credibility to it. If it's clearly not credible, we don't have to launch a full-blown investigation. But that doesn't mean that you shouldn't report it. Complaints, investigations, and the Brown Act. The complaint goes through four phases. The counsel appears in number one, sometimes number four, and nowhere in between. Number one is receive. People talk to you. That's why you're electeds. So you will sometimes be the person who receives a personnel complaint. You hear it, you report it. Phase one, done. Your job done. Phase two goes to the city manager and city attorney. That should happen the same day. City manager or myself are going to order an investigation to look into the complaint. An investigation does not necessarily mean an attorney investigator in a 40,000-page report. It depends on the facts that are in the complaint. It depends on the circumstances. The council is never going to be investigating a personnel complaint as individuals or as a body. Number four, act in close. This might be something that comes back to you. Most of the time, it's going to be the city manager. Sometimes it'll be the fire chief or the police chief or someone within their department. It could be the council if it's me, the city attorney, or it's the city manager, you're the appointing authority. So if there is a complaint against the city manager, for example, the investigation report will come to the council and the council will decide what to do with it. That is one of the only times when it'll come to you. The other time is I need money to settle the case. So, you know, we talked about it being inappropriate or whether or not it was appropriate to hold a personnel discussion for a city council member. The answer is no. We're not going to hold discipline or complaint discussions in closed session. You're not employees. You don't have the ability to discipline or terminate each other. So why would it be in closed session? The liability. We'd be in closed session to discuss significant exposure to liability because that's the other side of the coin, right? So those are the two reasons. Those are two reasons will be there. Number four, take action if it's a city manager, city attorney, and then depending on what employee it is could be anyone in the city. We may need settlement authority from the city council to resolve a complaint. Close session personnel review. It's on the appointment. We talked about this evaluation discipline of a public employee. If we are going to have specific charges in closed session against the city manager or myself, there is 24 hours notice that is required to be provided to the employee. So same as the special meeting agenda posting, but essentially you're going to give them notice of what the complaint is. If you don't give the notice, any action you take in closed session is null and void. I mean, that just means you probably hold the closed session again, but why waste your time? The complaint subject determines its route. City employee, who receives it? City manager. Department head, who receives the complaint? City manager doesn't. What if it's about the city manager? City attorney. And then what do I do with it? Sit on it? Bury it? Investigate it? Nope. I call the mayor. I say, mayor, I need a closed session. I have something that I need to report to the council and I bring it. Now that's not a complaint. We're not having a hearing on it. That is getting authority to investigate and you investigate it. You get the results and you decide what you're going to do with it. Sometimes unfounded. Sometimes there's, there's a finding. You have to decide what you want to do.

Do you have, um, do you have so much time that you have to look into it? Like, uh, And we'll use the example we're talking about. So it comes to you. It's regarding city manager. You need to call a closed session. If we can't all agree to be in that closed session within a few days, week, month, whatever the scenario is, is there a time limit on when we're able to go to a closed session? And sorry, I'm not getting it out.

No, no. Let me see if I picked up the question. A complaint against the city manager is a very serious issue. Because it is the only position in the city where we need notice to convene a body made of people who are not full time government employees sitting around waiting to do this in order to take action. if it wasn't the city manager and it was a very serious allegation the city manager would place that employee on administrative leave while you evaluate paid administratively it's not disciplinary while you investigate it and determine it i don't have the authority to place the city manager on administrative only the council does council can only meet under a property properly noticed meeting which requires at least 24 hours notice, except if there's emergency circumstances. And one of the emergency circumstances is not personnel investigation. It's war, pestilence, famine, work stoppage, right? So what do you do?

Is that a question?

Why not? We're having a conversation. What do you do? Let's say we received an incredibly serious, incredible allegation against your city manager. We've never received one of those. I don't anticipate ever receiving one of those in this jurisdiction. But let's say you did. What do we do?

Hold a closed session. So...

Yeah, it comes to me. I call the mayor. I say, Mayor, I need a closed session. Mayor says, so this person's going to be the city manager for the next 24 hours? So what I'm telling you is, while going through this training, I did identify a couple places where I think we could update our policy, just so we know what the answer is. I don't anticipate this ever coming up, but I'd rather have spent a few minutes writing a process and never, ever need to use it If this did happen and we didn't have a rule in the books, we would not be paralyzed. This council has demonstrated again and again that it is capable of taking action that are properly commensurate with the circumstances. But I think this is one of those things that's worth having a look at.

I think there's two different circumstances. One, somebody comes to me about a complaint about the city manager for something he did 18 months ago. I don't feel this urgency to that. Sure. Let's say the city manager is in the act of violating this contract and is continuing to do that to detriment to the city.

It doesn't even necessarily have to be harassing. Right. But the city manager is draining the investment accounts and fleeing to Cuba. Right.

Yeah. We can't get to it for a month. Right. Yeah.

Yeah. Well, you know, we don't have a quorum. Right. you know, because he's going to Havana. So I think it's worth talking about. Again, it's not the kind of thing that's high on my risk profile. It's probably why it's not ever been addressed in the municipal code or procedures. But I do think it's worth talking about at some point. How would we want, what would we want to happen in a scenario like that? And what I would tell you is my recommendation would likely be to authorize the mayor with the concurrence of one council member to be able to temporarily place the city manager on paid administrative leave until the council can meet in closed session. But that's something that we'd have to address in the code, in the personnel rules, and in the contract. So there may be other ways to deal with it, but you don't want me doing it. And there's not enough time to get a quorum, so you're going to have to figure out what you want to do. same thing for council member let's just skip to the other one right that one has a question mark on the on the table i legitimately don't know what happens when one of you harasses someone what does the personnel policy say takes the complaint on you what if the complainant is the person who would ordinarily take complaints So I'll tell you this is addressed in the Hemet personnel rules. Goes to the city attorney. City attorney reports it to the mayor, or if it's about the mayor, then to the mayor pro tem so that an investigation can begin. But again, we have difficulty meeting in closed session on council member misconduct outside of the liability context. So if you were going to have an investigation done not for liability, but for the purposes of whether this happened in any corrective action that's taken, that's likely going to have to be a public report in the form of a censure proceeding. It's messy. Okay? Fun stuff. We cannot promise complete confidentiality, never promise complete confidentiality. It's limited. We can be responsible with the information we give. We can use it only as needed. But I mean, if one of these things becomes a lawsuit, that complaint may end up a public record that gets filed and read by everybody. Retaliation, and we are chugging right along. I think I've got about maybe 15 minutes left. We'll give the council a little bit of a break before the meeting starts. Protected activity does not require a formal label. They don't need to say harassment. They don't need to file anything. Just complaining can be enough.

Serving as a witness in an investigation.

I can't tell you how many times this has come up where, you know, Complaint comes in, witness gets summoned to answer questions, and their supervisor, well, what did you tell them? All of a sudden, they're getting the cold shoulder. I got called in, I answered questions. Opposing or refusing, I'm not comfortable with that action, not participating in discriminatory conduct. And the part that all, every, okay, so here's the thing. Everyone remember, so I don't know if anyone here has gotten a personal complaint against it.

Okay.

Um, everyone remembers the first time they got one. If you got one, uh, if you're at any level of government service, you probably had a few. Right. And the thing that always gets to people is it's not true. How can they lie about me and have nothing happen to them? Right. Right. for retaliation to occur, the complaint doesn't even need to be true. They have to have a reasonable good faith belief, right? But claims get investigated all the time and they get determined to be unfounded, unsubstantiated, misunderstanding. That doesn't give people license to retaliate against the person who made the complaint. This one's an interesting example. And it's five explainable actions, each individually, that when a plaintiff's attorney puts them on a timeline, wins the case for them. So she used to have a standing meeting with her manager, but it got moved to a time that she can't attend. So she lost that standing meeting. She used to be in charge of an important project, got reassigned to another employee. She stopped being copied on certain emails at the city management or at the department level. Her evaluation went from exceeds expectations to meets expectations. It was exceeds last year. Now it's meets. And they did discretionary training requests. I can't tell you how often this comes up. That had been approved two times before. Maybe they were going to go to the league conference for their particular profession. It got denied this year. In isolation, any one of those, perfectly reasonable, perfectly explainable. In fact, all of them combined could still have a legitimate explanation. But when you put them on a timeline like that, what does it look like? You're getting froze out, right? You're getting sidelined. You're getting retaliated against. Each one alone is defensible. All of them together is a chronology. One of the things I ask when I get dragged into employment things, I usually don't. If I'm there, it's usually bad, right? I say, I want the last 90 days of everything that you've done with this employee. Every write-up. every assignment change every request they've made whether it was granted or denied i want everything you've done i probably should go further maybe i should but i always find that the last three months are usually the timeline that this thing goes where someone goes from being in to out i'm not saying you can't manage the city but What I am saying is there is a huge benefit to contemporaneous documentation. If you decided you were going to discipline an employee, write down, as soon as you made that decision, I'm making this decision and why. Some professions have very formal due process procedures that make that easy and standard. Some don't. but I can tell you I've had it come up more than once where an email from management to HR that says, start prepping the termination packet for this employee. We're gonna be letting them go date stamps has been excellent evidence to defend a decision because I've seen several times where when the employee gets wind, that this is coming and people know. They don't always know. Sometimes they're clueless. But generally speaking, people know when people stop talking to them, their assignments start getting rerouted. They know. You'd be shocked how many times all of a sudden we get a discrimination complaint of some kind or harassment complaint. So document it. There's no, we didn't know. And there is no, she never complained. when it comes to strictly liability for supervisory conduct. Now, I talked about liability and damages. So liability, it's there. There's no getting out of it. I mean, there probably is some way, but generally no. The damages are where we can mitigate, right? So as soon as we know that there was conduct, move quickly to correct it. Make it right. You can probably cut off even a potential lawsuit. If you're reasonable, you approach this correctly. And usually that can be done well within the budget of any potential litigation. There is a process before a lawsuit comes in where they have to file with the, used to be called the Fair Employment Housing Department. Now it's called the Civil Rights Department. They file a complaint with CRD. CRD can investigate it. CRD can decline to investigate it. And they have to issue what's called an ability to sue letter. I found it. It's the slide. Would you like to take this slide, Council Member Welty?

Yeah, go ahead.

Give us the slide. They got to turn your mic on. So everybody, if you tuning in just now, Councilmember Welty specifically asked this question, and I told him there was a slide on it. So we're going to give him the honor presenting the slide.

All right. So the question is, if widespread favoritism occurs, I assume widespread doesn't mean widespread to everybody, because if everybody gets favoritism, it's not favoritism by definition. Sure. But if we see isolated groups that are individuals that are getting favoritism, and the people outside of the favor group are not being offered the same level of Comradery, let's even go to that level. Comradery, then that could be a reason for a hostile environment.

Read the dark blue side.

The department is openly in relationship with a subordinate who receives the best schedule and the promotion. Two other employees complained. Neither was ever propositioned, touched, or spoken to inappropriately.

Okay, so this is this factual scenario that you brought up. Right. A department head is in a relationship with a subordinate. That subordinate is getting advantageous promotions, assignments. They're the favorite in the department. Other employees, they're not being harassed or discriminated against, right? Right. No one propositioned you? No one harassed you? Do they have a claim?

Yes. I would say yes. Clearly, yes.

They do. Pardon? They in fact do. We're going to keep going until we get this done. If you are the one accused, preserve everything. Respond formally. This is the same whether it's true or not, well-founded or not. Don't contact the complainant. Don't talk to the witnesses. Not to explain. Not to apologize. Not to clear the air. You are only going to make this worse. I guarantee it. but it's a misunderstanding. It may very well be, but they filed a complaint against you, right? And what they're going to, they're going to feel intimidated when you reach out to them. Don't delete your text messages, emails, photos, or chat threads. Look, I've seen a lot of these cases, seen a lot of text messages regarding the issue. And what I can tell you is every person who's deleted the text messages has had an adverse finding against them. So if your goal is to avoid an adverse finding, you didn't do that. Maybe it's to avoid an adverse finding and embarrassment. But the fact is you have to remember there's two sides to every text thread. And maybe you deleted it. The other side probably didn't. And your act of deleting it demonstrates, in my opinion, that you knew it was wrong. And then the worst thing you can do is ask the other side to delete it. Because now you're actively trying to conceal it. Do ask for a defense from the city. Cities are required generally to provide a defense. People are acting within the course and scope of their duties. And then one thing to remember, I represent the city. I do not represent any of you individually. There may be times where you may want to consider getting your own legal advice. Not a matter. Last thing, records and bystanders. Four forms of intervention in order of cost. Direct. That's not okay. Let's not do that. Short, in the moment, no lecture attached. It's what we wish happened. Doesn't usually happen. People usually aren't that quick. Distracting, people change the subject, ask to help with something, call the person away, no confrontations. Delegate, get someone with authority and standing and get them there now. You call on someone else to do it. And lastly, delay. Check in afterwards. Unfortunately, this is what most of the time happens. Bystanders observe harassing and discriminatory behavior. They do nothing in the moment. And then they approach the person afterwards.

Say, hey, are you okay with what just happened?

now that's where most of these complaints start is that way i wish we could be more proactive um but checking in afterwards is usually what happens it's also the one that mostly usually provides the complaints that we act on your training record is public five years this is gonna be with the clerk's office all of your certificates of participation any member of the public can request it That's not necessarily true for members or the employees. And then this is all, this is the same questions, but you guys got them all right the first time. I don't feel obligated to ask it again. Remember what I told you, there's one thing I want you to remember. If someone tells you something, don't investigate it. Don't promise to keep it quiet and route it the same day. That's what I want you to remember out of this whole training. That's it. I do think it's worth looking at the question of who looks at a council member complaint and maybe formalize that. I think we kind of, it goes to me, I bring it to the council. I think that's probably the right way. Similar to the city manager, comes to me, I bring it to the council. But I do think it's maybe worth formalizing that just a little bit. It doesn't have to be a 20-page policy. It'd be just pretty straightforward, including when immediate action is required to be taken. I think it's worth looking at. Then we'll make sure to calendar the next training. We'll make sure that if we get a new, I think we're gonna have at least one new council member come December, we'll make sure that they get this training separately so they're on roughly the same timeline as the rest of the council. This is, like I said, there's some slides in here that aren't for the training, but it's mostly just to make sure that if anyone does a compliance check, they can go through and make sure that I checked every box. Which I did.

You're welcome. Questions? Awesome job, Mr. City Attorney. Any questions? Seeing that there are none, it is 5.15. We're going to recess into closed session. That doesn't begin until 5.30. Thank you.