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HomeMy WebLinkAbout1981-12-10MINUTES REGULAR CITY COUNCIL MEETING THURSDAY, DECEMBER 10, 1981 CITY HALL COUNCIL CHAMBERS * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * I. II. IV. V. CALL TO ORDER Mayor Wilson called the Meeting to order at 7:00 p.m. PLEDGE OF ALLEGIANCE - Councilman Walter H. Snyder INVOCATION - Mayor Pro-Tempore Alexis D. Newbrander ROLL CALL PRESENT: Councilman James E. McPherson Mayor Pro-Tempore Alexis D. Newbrander Councilman Walter H. Snyder Councilman Romeo S. Puluqi Mayor S. Roy Wilson ALSO PRESENT: Martin J. Bouman, City Manager Carlos L. Ortega, Assistant City Manager David J. Erwin, City Attorney Sheila R. Gilligan, City Clerk Walter T. Clark, Attorney at Law James L. Hill, Witness Jean Benson, Witness Ike Speer, Witness HEARING BEFORE THE COUNCIL AT THE REQUEST OF MR. JAMES L. HILL RELATIVE TO HIS TERMINATION OF EMPLOYMENT WITH THE CITY OF PALM DESERT, CALIFORNIA. Verbatim Transcript. Mayor Erwin The regular business for the City of Palm Desert's second meeting of the month will be conducted at an Adjourned Meeting of December 17th. The only item on tonight's agenda is to grant the request to former Director of Building 6 Safety, Jim Hill, who has asked for a public personnel hearing. The procedure for tonight's hearing has been worked out by Mr. Clark, attorney for Mr. Hill, and Mr. Dave Erwin, attorney for the City of Palm Desert. The procedure we will follow is first: People giving testimony will be sworn in by the City Clerk; we will first call on the City Manager to be sworn in to make a presentation; Mr. Clark, Mr. Hill's attorney, will have an opportunity to cross examine Mr. Bouman; the Council will have an opportunity to ask questions, and Dave Erwin, our City Attorney will have an opportunity to ask questions. We will then call on Mr. Clark, attorney for Mr. Hill, to present whatever witnesses he wishes to present, and they also will be sworn in and the Council, City Manager, City Attorney will have an opportunity to ask questions and cross examine. With that, I would like the City Clerk to swear in Mr. Bouman. You may, Mr. Mayor, swear all witnesses in at the same time if you wish. Mr. Clark can indicate who he wishes sworn in. MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Mayor Clark Mayor Gilligan James Hill Jean Benson Ike Speers Martin Bouman Mr. Clark, can you designate the witnesses for your side and ask them to come forward to be sworn in. Thank you, Mr. Mayor. We will be calling as witnesses Mr. James Hill, Mr. Ike Speers, and Mrs. Jean Benson. If those individuals will come forward and join Mr. Bouman and be sworn in at this time. Will you raise your right hand please? Do you and each of you solemnly swear or affirm that the testimony you will give in this proceeding is the truth, the whole truth, and nothing but the truth, so help you God? I do. I do. 1 do 1 do. Mayor Thank you. Mr. Bouman, will you please make a presentation. Bouman Mr. Mayor and Members of the Council, ladies and gentlemen. The reason we are here is because Mr. James Hill, the former Director of Building & Safety for the City, has requested this open hearing as it is associated with his termination from the City of Palm Desert. I don't know what facts Mr. Hill intends to bring before you. I' guess my side of the story here is that I have known Mr. Hill as an employee of the City and as the Director of Building ac Safety for in excess of five years, during most of which period I as the City Manager was his supervisor and director. During —primarily during the past eight to ten months, there had been a deterioration of the method and efficiency of administration in his department. That prompted an investigation on my part which primarily was triggered by an incident involving some missing files, but during the course of that investigation, other matters came to light. And following my investigation, I felt that under the authority given to me by the City Council through the Palm Desert Municipal Code and having lost the confidence I need in my directors to administer their department which in turn reflects on my ability to administer a decision, which after all is my full and only responsibility, I felt that it was necessary that a termination be made. I would cite as the main reason once again my no longer having confidence in Mr. Hill to direct and operate the Building & Safety Department. Having discussed that with Mr. Hill after the investigation, he agreed to retirement from the City and through the State Personnel System because he is eligible for retirement, but a few days later he requested a closed personnel session with the City Council and following that personnel session, Mr. Hill and I met again at which time he withdrew his retirement and I felt that under those conditions, there was no other course of action open to me and thus in what I felt were the best interests of his department and of the City, the City Council, and for Mr. Hill himself, I did issue the notice of termination. I think, Mr. Mayor, that concludes my presentation. Mayor Mr. Clark, you may cross examine Mr. Bouman. -2- MINUTES _ REGULAR CITY COUNCIL MEETING * * * * * * * * * * * * * * * Clark Erwin Clark December 10, 1981 * * * * * * * * * * * * * * * * * * Thank you very much, Mr. Mayor. If I might be permitted, Mr. Mayor, to use the podium if that's in the rules tonight. If I might also, I have some materials which I would ask permission to provide to the Honorable Mayor and members of the Council along with two additional documents which were delivered to me to be delivered to yourself this evening. If I might at this time present those to be passed out. Mr. Clark, may I ask for an extra copy so that the City Clerk maintain one or is there an extra copy? I think there will be sufficient for all here and the Clerk as well. Mr. Bouman, with reference to your comments, specifically that Mr. Hill requested a closed session, isn't it true that at that closed session he made it clear to those present — the Mayor and Council -- that he did not intend to resign? Bouman I think he did, yes. Clark Bouman Clark Bouman Clark Bouman Clark So really it wasn't later at your next meeting that he advised you but it was really when he went to that closed session before yourself, the Mayor and the Council -- that was the time when he advised of what had happened and that he had no intention of resigning or retiring. I'm not sure that it was that firm, but I think he certainly indicated that he wanted his job — he wanted to keep his job. Isn't it true that when you had initially told him of his choice between retiring and firing, he was really given no other alternative. In other words, he was either to retire, resign, or be discharged. I suggested a resignation. But he didn't have the opportunity of staying on with the City in some other capacity in being subject to some discipline or some other procedure. I suggested a resignation. I don't know how else to say that. Following that suggestion, the conversation with him turned to resigning or retiring, and he chose to retire. Wouldn't it be fair to say that the quality of Jim's work has never during the course of his employ with the City been inadequate in any sense. Bouman No, it wouldn't be fair to say that. Clark Wouldn't it be true to say that the quantity of work produced by Mr. Hill was adequate. Bouman The quantity? Clark Yes, the quantity. Bouman Yes, I'd say it was adequate. Clark Would it also be fair to say that you had no complaint that Mr. Hill didn't know the technical aspects of his job. -3- MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Bouman Are you asking me whether he performed his technical work in a proper fashion? Clark Bouman Clark Yes. Yes, yes he did. Did you have any objections or complaints about his work habits or his neatness, personal effects, and so forth, did you? Bouman I -- no. Clark Isn't it true that the City ordinance provides sanctions for unsatisfactory performance such as reprimand, admonishment, demotion — other alternatives to discharge. Bouman Yes. Clark Would it be fair to say that you used to have monthly staff meetings which would have included Mr. Hill but those meetings were suspended at some point approximately a year ago. Boum an Clark No, that's not exactly right. We never actually scheduled staff meetings on a monthly basis. Over five years or so we have had staff meetings at such time as I felt it was necessary to communicate with my department heads on general matters, and they were not on schedule. There were occasions when we could go as long as four months between such meetings. In addition, you used to have weekly meetings, didn't you, with department heads — meetings which were suspended after about March of this year. Bouman No. Clark You didn't usually meet with Jim Hill then on a regular basis before that time? Bouman On a regular basis? I meet with all my department heads on a regular basis, but it's not scheduled; it's on demand and so is the subject material. Clark You have indicated that you formed an investigation and that was pursuant to a memorandum that you gave to Mr. Hill, I believe that was dated — it was undated, in fact, and signed and dated November 8, 1981 - Exhibit B-10. The memo specifically refers to the missing file incident, doesn't it? Bouman I believe so. Clark Bouman That memo states that your concern about the missing file is such that you considered it to be of such great a consequence as to require your personal intervention. I believe tonight you said files. Did you mean that there was more than one file that you are referring to in this memo? I didn't really know what I meant because I had never seen the file or files. I only knew about the case, and I guess as it turns out, there was only one file. -4- MINUTES REGULAR CITY COUNCIL MEETING * * * * * * * * * * * * * * * December 10, 1981 * * * * * * * * * * * * * * * * * * Clark And that was the file of Ron Cathcart's construction of a pool, is it not? Bouman Yes. Clark During your investigation which was performed, was it not, during Mr. Hill's absence pursuant to your direction, you did have discussions with Mr. Cathcart, did you not? Bouman Among others, yes. Clark Previous to that investigation which was initiated by that memo we just referred to, Exhibit B-10, you had had other discussions in Mr. Hill's absence with Mr. Cathcart about Mr. Hill, did you not? Bouman Clark I had discussions with Mr. Cathcart; I'm not sure that they were necessarily directed towards Mr. Hill or toward other matters, but I did have discussions with him. Isn't it a fact that Mr Cathcart was very critical of Mr. Hill during this last period which you referred to as that period which triggered your investigation into the missing file? Bouman I haven't said that Mr. Cathcart was critical of Mr. Hill. Clark Bouman Well that's what I'm asking you. Isn't it true that he was one of Mr. Hill's detractors and had been critical of Mr. Hill. No — in all fairness, I wouldn't say that. Mr. Cathcart was involved in a particular problem about his pool, but 1 don't think his concern was necessarily directed toward Mr. Hill or anyone else. Clark You were concerned about this missing file enough to give this memo suspending Mr. Hill — Bouman No — Clark Excuse me. Bouman Let me clarify, it was not a suspension. Clark Let me clarify — a two -week relief from duty. Bouman Yes. The reason I make that point is because in my mind a suspension would be something that was ordered. This was not ordered. I asked Mr. Hill if he would accept a two weeks' leave from duty or whatever that wording is so that I could conduct this investigation, and he agreed. Clark Bouman Clark Bouman Clark Would that be kind of like when you asked him to resign and wouldn't consider that an order but the alternative was being discharged, was it not? No. Not at all the same. During your investigation pursuant to that memo, you talked to a number of people you indicated. Is that right? Yes. Were those persons only persons in the Building and Safety Department of the City of Palm Desert? MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Bouman I believe they were all in the department or formerly in the department. Clark With regard to that missing file, did you learn why it was missing? Did you learn where it was? Bouman No. Clark Did you share the results of your investigation with the Council or other persons? Bouman Did I? Clark Yes. Bouman No. Clark Wasn't it true that Mr. Hill had sent a memo to you about Mr. Cathcart July 11, 1980 — Exhibit B-7 - a two page memorandum which is addressed to Martin J. Bouman, City Manager, outlining some very serious allegations and concerns that he had about some conduct on the part of Mr. Cathcart? You received that memorandum, did you not? Bouman Yes, I believe I did. Clark Isn't it true that you never filed a written memorandum in response to that of Mr. Hill on that subject? Bouman That's probably true, but that would not be uncommon. Clark With regard to the persons you interviewed during this period of time during which Mr. Hill was not permitted to come to work pursuant to that November ---- Bouman Mr. Clark, I want to correct that. Clark I apologize. Bouman Alright. Clark We'll call it again a voluntary relief from duty, is that right, on request of yourself? Bouman Clark Bouman Clark Bouman Clark Bouman Yes. What persons, if you can tell us, were interviewed during that period of time. I believe the entire staff of the Building Department and one or two others. Of course that would include the secretary of the department, Hutchinson. No. She's not the secretary. Has she been formally relieved from duty by the City of Palm Desert? I — she -- I think she has now terminated but she was away on maternity leave, and I don't think she plans to return. -6- MINUTES REGULAR CITY COUNCIL MEETING * * * * * * * * * * * * * * * December 10, 1981 * * * * * * * * * * * * * * * * * * Clark Would the persons you interviewed during the course of that investigation also include Chris Nevins? Bouman Yes, I did talk to Chris. Clark Cecil Hartman? Bouman Yes. Perhaps not Cecil. I would have to refer to my notes. Yes, I'm sure — as many as were there. Clark Is it your impression that you only interviewed persons who were there and not persons who were not there? Right? Bouman Clark Bouman Clark I interviewed one other former employee of the department as I recall. And this was during the period of time when Mr. Hill was not at work pursuant to that memo, is that right? Yes. And are you certain that you interviewed Mr. Hartman during that period of time. Bouman I'm reasonably certain. Clark Chris Nevins? Bouman Chris Nevins for sure. Clark But you didn't interview Mr. Hill, is that right? Bouman I didn't interview Mr. Hill. Clark Do you feel that that was a fair procedure for an impartial investigation to be conducted in a fashion where Mr. Hill wasn't interviewed. Bouman Clark Mr. Hill and I had had at least several discussions about the matter before the investigation ever began, and the reason I didn't interview him in that process was because I felt that I already knew everything that he might be able to shed light on. And we can rest assured that you do have notes which reflect the persons being interviewed as well as the interviews with Jim Hill on these other occasions, is that true? Bouman I don't have notes on my interviews with Mr. Hill. Clark Mayor Honorable Mayor and Members of the Council, I would ask permission if it please this body to reserve the opportunity to further examine. I don't believe there will be necessity to that nor do I have further questions at this time. As I believe the next step would be an opportunity to ask questions of Mr. Hill, I would, at your pleasure, begin to do that. If you have any suggestions as to preference as to where we are placed or how that examination takes place, I would appreciate comments. Yes. I think first, give the Council an opportunity to ask any questions for clarification from Mr. Bouman and then proceed with Mr. Hill. -7- MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Clark Thank you. Mayor Does Council have any questions of Mr. Bouman. McPherson None at this time. Mayor Mr. Erwin? Erwin I have one question, Mr. Mayor. Mr. Bouman, I would ask if your determination to terminate Mr. Hill was based upon information that you had learned yourself as opposed to being told by someone else. Bouman The decision to terminate was based on the findings of my investigation together with my own observations which have taken place over a period of time prior to the investigation. Mayor Mr. Clark, would you care to proceed with your witnesses. Clark Clark 1 see that we have perhaps shorted one exhibit. May I pass that down. As this examination process involves two people who should be before you, if it is permissible if I might ask Mr. Hill to stand where I am and direct questions to him — adjacent to him. Calling Mr. Jim Hill. Mr. Hill, during the course of these questions I am going to be referring to exhibits which are before the Honorable Mayor and Council . You have a copy likewise of those exhibits before you, do you not? Hill Yes I do. Clark With reference to the date of November 30, 1981, you received a discharge memorandum, did you not, from the City Manager? Hill That's correct. Clark' That is as accurately contained in Exhibit A-1 before you? Hill Yes. Clark That memorandum cites reasons for your discharge. Let me ask you, previous to receipt of that memorandum, had the City Manager ever informed you that you were incompetent? Hill No. Clark Had he ever informed you that you were inefficient? Hill No. Clark Had he ever told you that you were a poor administrator? Hill No. Clark At any time before receipt of that memorandum of discharge had the City Attorney ever reprimanded you or subjected you to any sort of disciplinary proceedings within the City? Hill Whom? -8- MINUTES REGULAR CITY COUNCIL MEETING * * * * * * * * * * * * * * * December 10, 1981 * * * * * * * * * * * * * * * * * * Clark The City Manager ever subjected you to reprimand or disciplinary proceedings within the City of Palm Desert? Hill No. Clark You also received a memo dated the 8th of November, 1981. Receipt of the memo we just discussed. That also was from the City Manager asking you to take a leave of absence for a couple of weeks so he could do a personal investigation. Is that correct? Hill Yes. Clark You were asked to sign that memorandum? Hill Pardon? Clark You were asked to sign that memorandum? Hill Yes. Clark And pursuant to the request of that memorandum, you did not come to work for two weeks, is that correct? Hill That's correct. Clark During that period of time that investigation, were you given an opportunity to discuss the investigation with Mr. Bouman? Hill No, I was told I should not contact any employees or discuss the problem with any of the employees or come to City Hall. I Clark Hill Clark Hill Clark Previous to your receipt of that memorandum, you had sent a memorandum to the City Manager. That is the Exhibit B-7 which is a memorandum dated the llth of July, 1980, on the subject of Mr. Cathcart. That's correct. Did Mr. Bouman respond to you and to the subject of that memorandum? No, I left immediately following the memorandum on vacation, but I did state in the memorandum that I would like to discuss the subject with him on return from vacation. With reference to that memorandum, would you, for the record, read the first paragraph of that memo that you wrote. Hill That's Exhibt B-7? Clark Yes. Hill Which paragraph? Clark First paragraph. Hill A personal problem concerning Ron Cathcart has developed. You have a previous memo in which I responded to the City Attorney representing G. H. Pools, who has filed a complaint against Mr. Cathcart. -9- MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Allegations have been made by Mr. Haltman of G H Pools concerning construction of and contract payments for a pool he is in the process of constructing for Mr. Cathcart. The squation has developed to the point that you should be knowledgeable of the entire affair and be made aware of the overall situation. I do have records, statements, letters of communication, and phone call messages involving the total action. Clark If I could ask you then to read just the second parapraph and the last paragraph of the letter. Hill Second paragraph. Apparently, Mr. Cathcart had asked G. H. Pools for some extras and then refused to pay for same. G & H Pools, or Mr. Haltman, is a reputable contractor and has been in business in this valley for years. As I suggested to Mr. Haltman at our meeting, we in the Building Department do not get involved in contract disputes, yet the thought of City employees using pressure tactics to obtain either special favors and/or gratuities is not acceptable. I have discussed the subject with Mr. Cathcart, told him of the complaint, and asked that he try to arrange his business in a manner where the image of the City and other employees is not affected. Clark In the last paragraph, did you make a request to discuss the matter with Mr. Bouman? Hill Yes 1 did. Clark What did you say? Hill I -- hopefully I could discuss this matter with you when I return from vacation and should he desire to see written comments or the file, the secretary, Linda Hutchinson, had the file and had been instructed that no one with the exception of Mr. Bouman is to see same. Clark Hill Clark Hill Clark Clark Hill Clark Hill Clark Did Mr. Bouman ever express to you an objection to that last paragraph wherein you asked and instructed and informed him the file would be kept confidential? No. When did Mr. Haltman contact you regarding this particular problem? I believe I had a phone message from Mr. Haltman on April 30, 1981. That was reflected in Exhibit B-4, I believe. Had you also seen Mr. Haltman in person on this particular subject? No, I made an appointment for the following Monday. It would have been May the 2nd, I believe. And do you have in Exhibit B-3 which reflects that appointment? B-3? Yes. -10- MINUTES _ REGULAR CITY COUNCIL MEETING * * * * * * * * * * * * * * * Hill Yes. December 10, 1981 * * * * * * * * * * * * * * * * * * Clark That meeting took place in your office, did it not, with Mr. Haltman? Hill Yes it did. Clark Did you perform an investigation of your own into the subject and pursuant to the investigation, did you observe and review a correction notice dated April 25? Hill Yes I did. Clark Exhibit B-1 appears to be a copy of that notice. Hill Mr. Clark, the exhibit number on my files is B-3. Clark I apologize. That's B-3. Hill Would you repeat the question? Clark As a normal procedure on such construction jobs, is there a record kept of inspection requests? Hill Yes. Absolutely. Clark In your review of the file, did you find any evidence of a request for inspection on that job? Hill At what time? Clark Any whatsoever did you find --- Hill No, no. We never found the inspection call. Clark In fact, Exhibit B-1 reflects an example of an inspection request that had been filed at the beginning of that job, did it not? Hill That's correct - for a pool stake. Clark Did you subsequently try to find an inspection request for the inspection which resulted in a correction notice? Hill Yes. Clark Were you able to find that inspection request in the file? Hill No. I never saw an inspection request. Clark You did observe -- you did review the correction notice which I believe is marked as B-3 as an exhibit? Hill Correct. Clark Did you make an investigation yourself into how that notice came to be written? Hill Yes I did. Clark What did you learn in that regard? Hill On approximately May the 5th after Mr. Haltman came in requesting a copy of the correction notice, I sent the secretary back to pull the building permit file. The file -11- MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * wasn't available at that time so at that time Mr. Calvert, it was approximately 9:30-9:45 in the morning, Mr. Calvert was in the back office — Inspector Calvert -- and about that moment as I was speaking to Cal if he knew anything about it or had he written the correction notice at 74-395 Buttonwood, the secretary did find the file and it had the correction notice in it written by Mr. Calvert. I asked him to come out to the counter which he did and talk to Mr. Haltman to explain what was necessary to be done. Mr. Calvert looked at that and told him, well, I haven't seen that. This was on April the 25th, the date that he dated it. At that time, I told Mr. Haltman we would get him a copy and put it in the mail of the correction notice so he would have it available. I then asked Mr. Calvert to come into my office, close the door, and I told Mr. Calvert that is not procedure or policy. How did you know the corrections as you identified them were there? He told me in his own, in my office, that he had never been on the pool, it had been given to him, those corrections, by Mr. Cathcart. He wrote them down and signed them, and I told Mr. Calvert, I said, we do not operate in that manner. That is even worse than a windshield inspection where you drive by and look out the windshield, but not to see the pool at all was something else. Clark Did you subsequently direct Mr. Calvert to the site to make the inspection? Hill Yes, and accompanied by another inspector. Clark With reference to Exhibit B-6, that which appears to be a letter over the name of Mr. Palomino directed to Mr. Haltman. Hill Yes. Clark Have you had a chance to review that copy and date that it reflects? Hill The date of June 5th, apparently either Mr. Haltman had lost his copy of the correction notice or was requesting anotherand Mr. Palomino told me that he had a phone call from Mr. Haltman and he then provided a copy of the correction notice with this letter to Mr. Haltman. Clark Is there anything unusual about that sequence of events? Hill Well, its almost a month and ten days after the correction notice was written. That's unusual to say the least. Clark At a certain point in time, that file was subpoenaed to court and you were asked to bring it, were you not? Hill That's correct. Clark When you went to court, did you have the file? Hill No. Clark Had you attempted to find the file? Hill Yes. Clark Mr. Hill, you have indicated that you were subjected to a subpoena duns tecum to the respondent by attending the MINUTES — REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Superior Court but you did not have the file. Had you made an effort to find that -- that subject Cathcart file? Hill Yes. Spent — the secretary, Donna Ray, and I spent the day of the 3rd of November and also the day of the 4th of November, we also enlisted the aid of Chris Nevins who had been on jury duty, was not assigned on that date, came in at about 9:30 and the assignments had been out in the field, and I asked him to help. Clark Would that file which was subpoenaed to court have contained the memo July 8 — excuse me, July 11, 1980 -- from yourself to City Manager Bouman? Hill Would it have had the file been complete? Clark Yes. Hill Yes, I'm sure it would. Clark Should that file also have contained all of the inspection requests that had been made on that particular pool? Hill Clark Hill Clark Hill Clark Hill Clark Hill Clark Hill Clark Hill The permits, the inspection request, and action that had been taken on the inspection request. In fact, those requests are kept in the file by State law, are they not? That's right. File records, requests for inspection, dates, and so forth. In response to Mr. Bouman's memo of November the 8th asking you to stay out of the office for a couple of weeks, did you steer clear of the City of Palm Desert. I — in discussion with Mr. Bouman on a Sunday morning when we — I made a written statement on that memo that the last paragraph was all inclusive and I wouldn't sign that manner -- that was strucken out, and I told Mr. Bouman that, with his permission during my leave of absence, I would like to go to Merced, California, to visit my brother, and I would be gone for approximately 4 days. On your return, and at any time before your discharge, Mr. Bouman never permitted you to partake in that investigation by inquiring of you, did he? No. The next contact from the City was the 18th of November, 1981, in your meeting with Mr. Bouman. That's correct. He called me by telephone and asked me to come in. What was the bottom line of that meeting? What were you advised at that time? The bottom line was resign. Was there any inference that there was an alternative as far as you were concerned? Not really an inference, no. -13- MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Clark Hill Clark Hill Clark Hill Clark Hill Clark Hill Did you feel you had an alternative? Pardon? Did you feel you had an alternative to resign. I probably had the alternative of taking an early retirement, yes, and we discussed that. Was that something you would do voluntarily? Yes. Was that something you wanted to do -- that is to resign or retire? After we discussed this on the initial outset of the meeting, and I made the trip, and Mr. Bouman had told me that if I did return to work that there would be 4 employees in the Building Department that would quit or resign and when I made the trip up north, I got really to thinking on that — are those 4 employees any better than I. I did go to San Bernardino, I did check. I did make an application which I later rescinded and I have a copy of that dated, and the longer the period of time of the ten days and the more I thought of the matter why should I resign, I dont fel that I have done anything that warrants that. What happened after you advised the City Council on the 25th of November that you did not in fact wish to resign or retire? I -- on a Monday, I did not go to work on Monday, November the 30th. Mr. Bouman called me and asked me to come in at approximately 3 o'clock. He handed me a termination notice and his statement was: What are your plans? And I said I was planning to come back to work tomorrow morning at 8 o'clock. He said based upon that, I anticipated your statement, here's your termination effective December 2nd. Clark That termination notice cited as reasons for your termination incompetence, inconsistency, is that correct? Hill Yes. Clark I have nothing else at this time of this witness, Mr. Mayor. I believe there are just two additional witnesses who wish to make just very brief statements without question. Mayor Thank you. Does the City Attorney or the Council or Mr. Bouman have any questions of Mr. Hill at this time? Erwin No. Bouman No. Mayor I would like to reserve an opportunity to ask a question later, if possible. Your next witness, Mr. Clark. Clark Mr. Ike Speers? Speers I'm Ike Speer. I'm responsible for development of quite a substantial project here in Palm Desert. I've been here 3- -14- MINUTES REGULAR CITY COUNCIL MEETING * * * * * * * * * * * * * * * December 10, 1981 * * * * * * * * * * * * * * * * * * 1/2 years, and tonight I didn't know I was going to speak, so I have nothing written or whatever. I want it understood I'm speaking for Ike Speers, the builder/developer, not my employer. I have been in the construction business for 30 years all around the country. I've bumped up against the best of them. I'm a very competent person, and I personally haven't dealt with a better director of building and safety than Jim Hill. Jim Hill may be a little bit direct and a little bit hard-nosed as I am, and sometimes we don't come across too good, but what I find out with Jim Hill which is not very normal now -a -days with most people, I am not referring to anybody but most people are swayed a little bit from one day to the next — Jim is like the Rock of Gibraltar as I am. I'm the same person everyday. I have my principals and I am very much for principals. And a therefore that may be one of the reasons that Jim Hill and I understand each other. 1 came here 3-1/2 years -- well, almost 4 years ago — and the job I took over was in pretty bad need of correction and naturally one of the first things I did as I do in any city I go to work in is I contacted the building department, and I must say that Mr. Hill and his staff did everything they could to direct me and give me the proper advice to get out of that rut. Clark Mr. Speers, may I ask you a question? Did you find in your contact with Mr. Hill at any time any evidence that would lead to the conclusion that Mr. Hill was incompetent in his job. Speers Positively not. Clark I have nothing else of this witness. Clark If I could just briefly of Ms. Jean Speers -- excuse me, Ms. Jean Benson. Ms. Benson, would you be so kind as to introduce yourself, advise -- relate to all of us your history with the City of Palm Desert. Benson Clark Mayor Bouman I would be happy to. Jean Benson, right now Manager of Anderson Travel and a member of the first City Council of Palm Desert. I am here tonight because I was on the Council when we hired Jim Hill. We had our City Manager at that time do a thorough search to find somebody that would be tough and that we could rely on for — to help guide us in developing the standards that we wanted to see the City of Palm Desert follow, and 1 think Jim Hill has done that. I think that he has really given his all to this City. I really think that the people that have built here, that have settled here since Jim came to work for the City owe him a debt of gratitude for their houses would not be as safe, the City would not be in the shape its in today, and we wouldn't be progressing in the manner that we are and be envy of the other communities envious because we are tough and we wanted to keep it that way. I think Jim has done a tremendous job. I have no other witnesses or questions of this witness. Thank you Mr. Clark. Mr. Bouman, do you care to make any responses to any of the testimony that has come before us? I think, Mr. Mayor, with reference to one point in Mr. Clark's questionning of Mr. Hill, I think he asked him -15- MINUTES REGULAR CITY COUNCIL MEETING * * * * * * * * * * * * * * * * * * * * * * * * * December 10, 1981 * * * * * * * * whether I had — whether he had ever had bad reviews, whether he had ever been told he was incompetent. And I think the final question was, did he ever tell you you were a poor administrator? Mr. Hill said the answer was no that I had not. And I disagree with that. I did tell Mr. Hill on more than one occasion that if not a poor administrator, that certainly his administrative techniques had serious shortcomings and that they would have to be corrected. Mayor Does the Council of any questions -- anyone at this time? Newbrander And you told Mr. Hill that — Mr. Bouman, you said that to Mr. Hill not within the last couple of weeks but earlier, didn't you. Bouman Yes, I haven't spoken with Mr. Hill for most of — the better part of a month now, so this was some time previous to — previous to the incident. Mayor Any other questions from the Council? Council Not at this time. Mayor Mr. Erwin? Clark Excuse me, I apologize. I would like an opportunity to make a statement. I didn't mean that we had nothing further. Mayor Certainly. Mr. Erwin, do you have any questions. Erwin I have no questions, Mr. Mayor. Mayor I — I believe that if the Council is in agreement, we will ask Mr. Clark to come forward and make his concluding statement. Clark Thank you very much, Honorable Mayor and Members of the City Council. I have presented and taken the liberty of providing this brief and index not for the purpose of burdening you but hopefully to expedite summarizing a lot of facts which I think are difficult to present and summarize in this kind of a brief format. Hopefully this will expedite and I would ask permission to review and comment on some of these exhibits if I might at this time. In trying to get a perspective of what's happened here, I would suggest that we start with the observations of the Building Department secretary, Linda Hutchinson. She has submitted a declaration and affidavit notarized — Exhibit C-1 — and I think it's important in the respect that we're trying to judge what went on in that Building Department to know what the secretary was observing. A couple of things appear to me to be irregular. She comments on missing files. I would ask that you would review this document in your deliberations this evening. She also indicates the name of someone who she observed involved with this irregular behavior. More importantly, I think if we were to examine the administrative procedures, perhaps most important of all, the fairness of those procedures, we should note her observations with regard to the manner in which these things were done with respect to the meetings about Mr. Hill and what was -16- MINUTES _ REGULAR CITY COUNCIL MEETING * * * * * * * * * * * * * * * December 10, 1981 * * * * * * * * * * * * * * * * * * . going on in his absence in the City Manager's office. These administrative questions I think should be examined carefully before anyone comes to a conclusion as to whether or not there was administrative fault on the behalf of Mr. Hill. I say this because it appears that really there does not appear to be serious contention on the part of the individual making the allegations of incompetence that there was incompetence. It appears that he really is talking about some administrative problems and perhaps administrative problems which were becoming less serious as we hear more about them. In that regard, I think its important to know what were the observations of the secretary. It is important also perhaps to consider the City Ordinance insofar as it describes grievance procedures. I believe that ordinance talks about a certain chain of command. I believe if you review those sections, you will see that they weren't followed by the persons involved in this investigation. So we try to figure out why this has happened and we look at a simple chronology, I submit, a chronology which begins perhaps with a conflict within the department, perhaps with some allegations of wrong doing and perhaps we aren't dealing with Mr. Hill who is stern, who is rigid in his interest in being impartial and fair in the way he runs his department. In regard to that chronology, I think as we look through it , we will see a certain theme evolving of a lot of irregularities and if I could just recite those briefly. Perhaps the most unfortunate and first irregularity is the incident regarding this allegation of one of the City inspectors under Mr. Hill using pressure tactics to obtain special favors and gratuities. That information would seem to me, and I would think would seem to most administrators, is very, very important information, was contained in a memorandum -- Exhibit B-7 — from Mr. Hill to Mr. Bouman. What strikes me about this is the memo is extremely comprehensive, is well -written; it obviously was the right thing to do under the circumstances but what seems to me to be incredibly irregular for considered administrative practices was that there was no responding memorandum from the City Attorney. Instead, what I think has happened is investigation in the absence of Mr. Hill discussing with those various parties Mr. Hill was suggesting were perhaps involved in some wrong doing. Queries to whether or not they had biased interest or motive in giving a position on any matters regarding Mr. Hill. The second irregularity — there's no inspection request in that file regarding the last inspection which drew this red tag, if you will, — I call it red tag; it's a correction notice. That's a situation where it could be pretty important to the contrator who said he never requested the inspection. There should be an inspection request in the file by State law. If he hadn't finished the pool and he hadn't requested inspection, isn't it irregular that a City inspector would call for inspection and isn't it also unfortunate and even more irregular that another City inspector would write that red tag without seeing the pool. That seems not only irregular but it seems wrong and it seems to me that what we are talking about hero is perhaps punishing Mr. Hill for doing the right thing in response to these unfortunate instances within that same department. Isn't it convenient for the City inspector who also happens to be the owner of a pool who is alleged, perhaps has been rebuffed, with regard to overtures of -17- MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * some back scratchings, some free extras because of the City inspector's position. Then as a result of his anger of being reported to call for inspection. But isn't it also unusual that the inspector who wrote the tag hadn't seen the pool and had in fact wrote it as it was dictated by the other inspector. Further irregularity in that suit between the contractor and that of the particular inspector were - -it's simply unusual and I think we should all consider it — that a City file completely disappears mysteriously and pursuant to this important investigation which was undertaken personally by the City Manager. There still is no explanation. It's unfortunate the City Manager didn't ask the secretary about these kinds of practices to see if she knew anything about it. It's also unfortunate that Mr. Hill wasn't involved in that investigation. I just ask — I just wonder where is the substantial wrong doing on the part of Mr. Hill that warrants this extreme punishment — a discharge from his job? In that regard, I would only say that if I were perhaps hearing about this story and perhaps telling someone else, telling about it, I would have an immediate question and say, you know, it's probable that a guy who's involved with something like this as a department head has probably had problems like this before, and I would expect to, if I was privy to his personnel file, I would expect to find memoranda in that file itemizing previous misconduct and warnings, acknowledgments, perhaps some information about other misdoings by the individual who was fired. We requested, therefore, a copy of Mr. Hill's personnel file. That file is generally marked as Exhibit A which is before you. I certainly won't take the time to go through all 7-1/2 years of it, but I would ask only to invite your attention to the most recent of the memoranda in that file. That's an evaluation dated February 1, 1981; every single score is rated outstanding -- appearance, personality, job knowledge, quality of work, quanity of work, responsibility, supervision -- all outstanding within 6 months. If you look at the back of them which is the second page, there is some room for Mr. Bouman's handwritten comments -- comment briefly on individual strengths -- stong leader and director, conscientious, reliable, dedicated to the job and profession, goes by the book. I assume these are things were supposed to consider commendations. B — comment briefly on areas where improvement is needed; occasionally a little overly rigid but it is done to insure fairness and impartiality. Career development potential — would qualify as chief of building department in any large city or governmental agency. I submit if you go through the numerous evaluations, the rest are pretty much the same — excellent, outstanding, commendations. I think the harshest thing we can find is that perhaps he was a little bit rigid in ensuring fairness and impartiality, and if I could find a criticism of a public employee, I would like to find one like that of all public employees. We haven't found the evidence that supports a summary discharge presently. If we look in this history, we haven't found evidence of previous warnings, previous misconduct by Mr. Hill and we wonder why. Why does this happen? I would ask your indulgence to go a step further and look at the law that applies to these kinds of issues when they are presented to us. With regard to those two cases which -18- MINUTES _ REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * are summarized as briefly as I could in Section D. We can see in a brief review of how the law -- how the California Supreme Court — has attempted to deal with the very situation we are confronting tonight. Let me tell you of the frustrations that I've encountered in preparing for this. I have tried to find out what the reason was for Mr. Hill being discharged, and it has been very difficult. In that regard, I refer to the Wilkerson decision which is Exhibit D-2. It says you know to be fair about things, you ought to give a guy a chance to be aprised of the reasons for the action that's going to be taken. He should be entitled to be provided with a copy of the charges including the materials on which it was based. We haven't found those materials. We asked, if you'll look at the correspondence in Exhibit F, December 7th, we asked for a bill of particulars with the factual information supporting the allegation of incompetence, and so forth. If you'll look at the last letter, Exhibit F-3, a letter of my own of December 3 -- excuse me, December 9 to the City Attorney — we'd been informed that this -- the wrong doing -- the information, the allegations, the evidence against Mr. Hill was in his personnel file. We got a copy of the file, and I wrote on December 9 and said - in review of the materials received, there appears to be nothing that would aprise us of the reasons for his discharge, and I invite the City of Palm Desert to look at his file -- at his personnel file and see if it tells them what the reasons of his discharge are. They certainly don't appear there. These cases, back to Wilkerson and Skelly, define the law as it applies to these circumstances. Unfortunately, they use words which many of us are not comfortable with. They talk about the Constitution; they talk about due process; and you know what, most people when they hear that say those are those technical, legal rules which we use to give somebody rights who doesn't deserve rights. Let me tell you something, all's they're saying when they say due process is fairness. And you know what the fairness, and you know what the fairness is in this case? They say that it is unfair to execute somebody without giving him a trial, and that's exactly what has happened in this particular instance. The California Supreme Court has said clearly that every public employee is entitled to a free discharge hearing and at that hearing, he is entitled to be not only advised of what's going to be presented but given the information that's going to be used against him, an opportunity to cross examine, confront the witnesses. The point is the law says Mr. Hill was entitled to a hearing before he was discharged, to a trial before he was executed, and he wasn't given that. What are the reasons for this? Why would, besides the fact it sounds like basic fairness, why would they want to apply these things to a public employee? Skelly says, No. 1, the public employee has a property interest in his job. A job is a pretty darn important thing to a lot of people. It's a heck of a thing to be losing without any reason at all. It goes on to say one of the reasons for the requirement for the pre- discharge hearing is the objective of minimizing the risk of error in the initial decision. What we're confronted with here tonight was a situation where if we'd had a pre- discharge hearing, there wouldn't have been the error of this summary discharge. To quote from Wilkerson, it says the employee has the expectancy of earning his salary -19- MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * free from arbitrary administrative action. All that says is fairness; give the guy a right to know what he is charged with, let him look at the charges, let him have a hearing before you execute him, before you discharge him, before you take away his job. The courts have not only said what's fair in these things, but after the hearing, it's described what's reasonable. Skelly dealt with a medical doctor who was discharged from the State of California's employ after he had been accused of some misbehavior. In fact, there was strong evidence of a number of incidents of unexcused absences, and other misbehavior, and the court reviewed in detail all of those allegations and came to the conclusion that he should be reinstated. The reason was simply as follows: that No. 4, it is an abuse of discretion to impose the most severe punishment possible, where is it not shown that the employee's conduct resulted in harm to the public service. Honorable Mayor and Members of the Council, it seems to me that if you review this man's personnel history, if you review the evidence taken in its strongest light, that this most severe remedy — the firing of him — is clearly an abusive discretion as it is analyzed in that state. The summary of the law is just two things: No. 1, you got to give a guy a fair hearing before he's discharged. Basic fairness. No. 2, when you do give him a fair hearing before the discharge, it seems that the law says it's only corrrect and fair not to abuse your discretion and fire somebody unless you have substantial evidence of wrong doing. They talk about public service and in reviewing Jim's history, I can say I am briefly familiar with having been here since 1973 and knowing him as a personal friend over a period of time, since then wish his public service — it's not perhaps all told in that personnel file. I understand that during his first year here, the department handles some $12 Million worth of construction and he was doing that along without staff. I understand that he undertook to do the whole thing himself; he took his work home at night. He gave his health to the City; he subsequently suffered some severe problems with his ulcers. In 1978-79 I understand there was some $80 Million done through that department. The record will show that Mr. Hill has never asked for a raise: He's given his all, and the strongest criticism I can find of him in the record is that he was rigidly fair and impartial, and I think that is a tremendous credit to this man and without a doubt, he is, as it is cited in these declarations which were attached to these exhibits an exemplary -- an exemplary employee. I have two proposed findings and a proposed resolution, perhaps presumptuous of me but I would like to just refer to them briefly as it reflects on what we have reviewed tonight. That's Exhibit I. No. 1, I think this correctly states the facts: Jim Hill was discharged on November 30, 1981, effective December 2, 1981, before being afforded a hearing and attended due process of rights. No. 2, the allegations of incompetency, inefficiency, and poor administrative practice are not sustained and no evidence establishing Mr. Hill's conduct as resulting in any harm to public service warranting the severest punishment of discharge. We would ask for the Honorable Mayor and Council to return the resolution reinstating Jim Hill. -20- MINUTES _ REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Mayor Mr. Erwin, do you care to make any concluding statement. Erwin No. Mayor Then, I would like to explore some options with the Council. We have the evidence -- a great deal of documentation here to look through. I would think several options: 1) take some time to study it; 2) discuss the matter right now, here; or 3) the one I prefer, would be because certain charges have been made involving other people other than Mr. Hill, I would prefer that we would adjourn to a closed session to discuss this personnel matter and return with a decision. What's the pleasure of the Council? Anyone? Newbrander I move we adjourn to an executive session. Mayor Is there a second? Snyder I'll second it. Mayor Before I call for a vote, for clarification, we will, if this motion passes, adjourn to a closed session to discuss the case. We will then possibly return this evening or at our next meeting to render a decision if a decision if reached at that closed session. With that 1 would call for a vote. All those in favor of adjourning to a closed session so indicate by saying Aye. Snyder Aye McPherson Aye Newbrander Aye Mayor Opposed? Puluqi No. Mayor to Puluqi - do you care to state a reason for your opposition, it's not necessary. Puluqi No. Mayor OK, we are adjourned to closed session. (8:12 p.m.) Mayor (11:05 p.m.) We will reconvene the regular City Council meeting and thank all those sticking around anticipating a decision. We have some bad news for you that we will adjourn to an executive session or a closed session at 11 a.m. on Monday for the purpose of -- we have instructed our City Attorney for additional material. Most likely we will be making -- announcing a decision immediately following the 11 a.m. meeting on Monday, December 14th. With that, I'll accept a motion to adjourn to closed session at 11 a.m. on Monday. McPherson I'll so move. Mayor Any objections to the motion. Council None. Mayor We stand adjourned to 11 a.m. Monday morning. (11:12 p.m.) -21- MINUTES REGULAR CITY COUNCIL MEETING December 10, 1981 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * NOTE: ATTEST: c EXHIBITS REFERRED TO IN THIS VERBATIM TRANSCRIPT ARE ON FILE AND OF PUBLIC' RECORD IN THE OFFICE OF THE CITY. CLERK. SHEILA R. GI IGAN, CI CLERK CITY OF PALM DESERT, ALIFORNIA -22- x-,..4--" , !"-2.7"— RCer WILSON, MAYOR /