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HomeMy WebLinkAbout04-04-2017 Item 14, Contract Amendment to Complete an Independent Confidential Personnel Investigation Meeting Date: 4/4/2017 FROM: Christine Dietrick, City Attorney SUBJECT: CONTRACT AMENDMENT TO COMPLETE AN INDEPENDENT CONFIDENTIAL PERSONNEL INVESTIGATION RECOMMENDATION 1. Authorize the City Attorney to execute the second amendment to the agreement with Burke Williams & Sorensen, LLP, with a not to exceed amount of $70,000; and 2. Authorize the use of non-departmental: contingency budget in the amount of $20,000 to complete an ongoing independent personnel investigation. DISCUSSION This item is on the agenda because the estimated costs to complete an ongoing independent personnel investigation exceed the budgetary authority of the Assistant City Manager and require City Council approval. On February 7, 2017, Human Resources Director, Monica Irons received a written complaint alleging multiple City policy violations by the Fire Chief and City Manager related to the production, display, and participation in a video shown at the Annual Chamber of Commerce Dinner. Given the level and roles of the employees subject to investigation and expressed concerns raised by complainants and their representative regarding the impartiality of the City Attorney and the HR Director to conduct the investigation internally, the HR Director and City Attorney and the Council agreed that an independent, confidential personnel investigation by a qualified third party investigator was appropriate. Under California and federal law, employers have an affirmative duty to take steps to prevent harassing conduct from occurring, and once misconduct is alleged, to take prompt, corrective steps. As part of that duty, regulations adopted under the California Fair Employment Act mandate that employers “conduct a fair, timely, and thorough investigation that provides all parties due process and reaches reasonable conclusions based on the evidence collected.” A critical component of the investigation process is the need to comprehensively document the investigation through preparation of a written report. Factors that commonly affect the cost of an investigation are the number and nature of issues presented, the number of interviews with complainants, accused employees, and relevant witnesses to prepare for, conduct, summarize and analyze and the amount of relevant documents and other records for review and consideration. Each of these components involves an additional associated cost to incorporate and address them effectively in the written report. Due to this inter-connectedness, an increase in the anticipated number of issues, interviews, and documents and records for review and consideration results in additional expense for the entire process. This circumstance is common to personnel investigations involving the type of allegations at issue here and it has been the case in this instance. Packet Pg. 181 14 Five law firms were contacted regarding this matter. The HR Director and City Attorney received approval from Assistant City Manager on February 14, 2017 (Attachment “C”) to engage the firm of Burke Williams & Sorensen, LLP, partner Katy Suttorp to conduct the investigation in an initial amount up to $15,000, which was the amount available to initiate the investigation in the City Attorney’s budget, with additional costs anticipated. Costs increased above those originally estimated due to scheduling accommodations for complaining parties and their representatives requiring more than one trip to San Luis Obispo by the investigator. Additional complaints were filed following the initial written complaint, which drove additional interviews of both complaining parties and rel ated witnesses. Finally, the investigator needed to conduct some follow up interviews with witnesses and complainants to ensure a complete and thorough investigation. Further funding was approved on March 21, 2017 (Attachment “D”) by the Assistant City Manager in the amount of $35,000. The authorization of additional funding up to $20,000 now requested from Council is estimated at this time to be sufficient to complete the investigation and process all vendor payments. City Attorney requests authorization to sign the second amendment to the agreement (Attachment “A”) with Burke Williams & Sorensen, LLP increasing the not to exceed amount to $70,000. FISCAL IMPACT There is sufficient budget in 2016-17 fiscal year within City Attorney ($15,000) and non- departmental contingency ($55,000) accounts. There is no impact to fund balance. Attachments: a - Second Amendment Burke Personnel b - First Amended Agreement - Burke Personnel Fully Executed c - 1st CMR Burke Personnel Investigation approved d - 2nd CMR Burke Further Funding approved Packet Pg. 182 14 SECOND AMENDMENT TO AGREEMENT This Second Amendment to Agreement is made and entered in the City of San Luis Obispo on __________________, 2017, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, herein after referred to as City, and BURKE, WILLIAMS & SORENSEN, LLP, a limited liability partnership, hereinafter referred to as Consultant. W I T N E S S E T H: WHEREAS, on February 10, 2017, the City entered into an Agreement with Consultant for professional legal services related to an independent personnel investigation into the Fire Chief and City Manager, grounded in applicable City rules and policies, and otherwise defined in Attachment “A” of the original Agreement; and WHEREAS, the investigation is ongoing; and WHEREAS, the parties seek to modify certain provisions of the Agreement between them to address the increased costs due to additional complaints being filed and the need to conduct additional interviews with witnesses. NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows: 1. The not to exceed amount in Section 1. Term of the Agreement is modified to $70,000. 2. All other terms and conditions of the Agreement, as amended hereby, remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. CITY OF SAN LUIS OBISPO By:________________________________ J. Christine Dietrick, City Attorney CONSULTANT ________________________________ By: Timothy L. Davis Its: Partner Packet Pg. 183 14 Packet Pg. 184 14 Packet Pg. 185 14 Packet Pg. 186 14 Packet Pg. 187 14 Packet Pg. 188 14 Packet Pg. 189 14 March 17, 2017 FROM: Christine Dietrick, City Attorney Jcd 3/20/17 SUBJECT: Use of Non-departmental: Contingency budget to further fund an independent personnel investigation RECOMMENDATION 1. Authorize the use of Non-departmental: Contingency budget in the amount of $35,000 to further fund an ongoing independent personnel investigation; and 2. Authorize the City Attorney to sign the first amendment to the agreement with Burke Williams & Sorensen, LLP, with a not to exceed amount of $50,000; and 3. Direct the Interim Finance Director to encumber the funds for this investigation and related legal fees. DISCUSSION On February 7, 2017 Human Resources Director, Monica Irons received a written complaint alleging multiple City policy violations by the Fire Chief and City Manager related to the production, display, and participation in a video shown at the Annual Chamber of Commerce Dinner. The video was produced and shown by the Fire Chief, and the City Manager appeared in the video. Upon receiving the complaint, obtaining a copy of the video, and viewing it, the HR Director and City Attorney agreed that an independent confidential personnel investigation was appropriate. Five law firms were contacted regarding this matter. The HR Director and City Attorney received approval from Assistant City Manager on February 14, 2017 to engage the firm of Burke Williams & Sorensen, LLP, partner Katy Suttorp to conduct the investigation in an initial amount up to $15,000, which was the amount available to initiate the investigation in the City Attorney’s budget. The investigation is ongoing, with increased estimated costs due to additional complaints being filed and the need to conduct additional interviews with witnesses and complainants. Further funding requested in the amount of $35,000, with an expectation that additional funding of up to $20,000 will need to be requested from Council. City Attorney requests authorization to sign the first amendment to the agreement with Burke Williams & Sorensen, LLP increasing the not to exceed amount to $50,000 and further requests that the Interim Finance Director be directed to encumber the additional $35,000 in funds. Final City Manager Approval Approver Name Date Approved City Administration DJJ 03/21/17 Reviewer Routing List Reviewer Name Date Reviewed City Attorney’s Office JCD 3/20/17 Finance and IT XB 3/21/17 Packet Pg. 190 14 Use of Non-departmental: Contingency budget to further fund a personnel investigation Page 2 FISCAL IMPACT The Human Resources: Administration budget includes $10,000 in funding for personnel investigations each year. However, these resources have already been depleted for the current fiscal year. The City Attorney: Legal Services budget had $15,000 in available funding which was used to initiate the investigation. With no further funding available in the City Attorney budget, staff requests the use of $35,000 from Non-departmental: Contingency budget. This account (25200-7050) has a current balance of $1,733,771. With funding available within existing budgets there is no fiscal impact to this action. ATTACHMENTS 1. Burke Williams Sorensen Agreement 2. FirstAmendment_Burke_Personnel 3. CMR dated 2/14/17 Packet Pg. 191 14 February 13, 2017 FROM: Christine Dietrick, City Attorney Jcd 2/13/17 PREPARED BY: Monica Irons, Human Resources Director SUBJECT: Use of City Attorney: Legal Services funding to retain Burke Williams Sorensen, LLP to conduct an independent personnel investigation RECOMMENDATION 1. Authorize the use of City Attorney: Legal Services budget in the amount of $15,000 to conduct an independent personnel investigation. Attached is the agreement that includes the current fee schedule. 2. Authorize the City Attorney to sign agreement(s) necessary to support the investigation. 3. Direct the Interim Finance Director to encumber the funds for this investigation and related legal fees. DISCUSSION On February 7, 2017 Human Resources Director, Monica Irons received a written complaint alleging multiple City policy violations by the Fire Chief and City Manager related to the production, display, and participation in a video shown at the Annual Chamber of Commerce Dinner. The video was produced and shown by the Fire Chief, and the City Manager appeared in the video. Upon receiving the complaint, obtaining a copy of the video, and viewing it, the HR Director and City Attorney agreed that an independent confidential personnel investigation was appropriate. Five law firms were contacted regarding this matter. The HR Director and City Attorney have preliminarily authorized the firm of Burke Williams & Sorensen, LLP, partner Katy Suttorp to conduct the investigation. This firm is on the City Attorney’s on-call list in the area of employment law. Ms. Suttorp has extensive experience in personnel investigations, firefighter bill of rights, training in the area of harassment and discrimination prevention, and is available to start the investigation immediately. Final City Manager Approval Approver Name Date Approved City Administration DJ 02/14/17 Reviewer Routing List Reviewer Name Date Reviewed City Attorney’s Office jcd 2/13/2017 Finance and IT Packet Pg. 192 14 Use of City Attorney: Legal Services to retain law firm for personnel investigation Page 2 FISCAL IMPACT The Human Resources Administration budget includes $10,000 in funding for personnel investigations each year. However, these resources have already been depleted for this fiscal year. Staff requests the use of City Attorney: Legal Services funding, which currently has a surplus, end- of-fiscal-year balance forecast to be approximately $17,000. With funding available within existing budgets there is no fiscal impact to this action. ATTACHMENTS 1. Burke Williams Sorensen Agreement Packet Pg. 193 14 March 17, 2017 FROM: Christine Dietrick, City Attorney Jcd 3/20/17 SUBJECT: Use of Non-departmental: Contingency budget to further fund an independent personnel investigation RECOMMENDATION 1. Authorize the use of Non-departmental: Contingency budget in the amount of $35,000 to further fund an ongoing independent personnel investigation; and 2. Authorize the City Attorney to sign the first amendment to the agreement with Burke Williams & Sorensen, LLP, with a not to exceed amount of $50,000; and 3. Direct the Interim Finance Director to encumber the funds for this investigation and related legal fees. DISCUSSION On February 7, 2017 Human Resources Director, Monica Irons received a written complaint alleging multiple City policy violations by the Fire Chief and City Manager related to the production, display, and participation in a video shown at the Annual Chamber of Commerce Dinner. The video was produced and shown by the Fire Chief, and the City Manager appeared in the video. Upon receiving the complaint, obtaining a copy of the video, and viewing it, the HR Director and City Attorney agreed that an independent confidential personnel investigation was appropriate. Five law firms were contacted regarding this matter. The HR Director and City Attorney received approval from Assistant City Manager on February 14, 2017 to engage the firm of Burke Williams & Sorensen, LLP, partner Katy Suttorp to conduct the investigation in an initial amount up to $15,000, which was the amount available to initiate the investigation in the City Attorney’s budget. The investigation is ongoing, with increased estimated costs due to additional complaints being filed and the need to conduct additional interviews with witnesses and complainants. Further funding requested in the amount of $35,000, with an expectation that additional funding of up to $20,000 will need to be requested from Council. City Attorney requests authorization to sign the first amendment to the agreement with Burke Williams & Sorensen, LLP increasing the not to exceed amount to $50,000 and further requests that the Interim Finance Director be directed to encumber the additional $35,000 in funds. Final City Manager Approval Approver Name Date Approved City Administration DJJ 03/21/17 Reviewer Routing List Reviewer Name Date Reviewed City Attorney’s Office JCD 3/20/17 Finance and IT XB 3/21/17 Packet Pg. 194 14 Use of Non-departmental: Contingency budget to further fund a personnel investigation Page 2 FISCAL IMPACT The Human Resources: Administration budget includes $10,000 in funding for personnel investigations each year. However, these resources have already been depleted for the current fiscal year. The City Attorney: Legal Services budget had $15,000 in available funding which was used to initiate the investigation. With no further funding available in the City Attorney budget, staff requests the use of $35,000 from Non-departmental: Contingency budget. This account (25200-7050) has a current balance of $1,733,771. With funding available within existing budgets there is no fiscal impact to this action. ATTACHMENTS 1. Burke Williams Sorensen Agreement 2. FirstAmendment_Burke_Personnel 3. CMR dated 2/14/17 Packet Pg. 195 14 Page intentionally left blank. Packet Pg. 196 14