LAW OFFICE OF BRICTSON & COHN Telephone Number (619) 296-9387
2214 Fifth Avenue San Diego, CA 92101 www.BrictsonCohn.com
Facsimile Number (619) 232-0583
October 5, 2009 JAY RESENDEZ, ESQ. 951 Reserve Drive, Suite 100 Roseville, CA 95678 Fax: 916-784-1571 Email: firstname.lastname@example.org JACK HUGHES, ESQ. Liebert Cassidy Whitmore 153 Townsend Street, Suite 520 San Francisco, CA 94107 (415) 856-0306 Email: email@example.com
CONFIDENTIAL AND PRIVILEGED COMMUNICATION THE INFORMATION HEREIN IS CONFIDENTIAL, PRIVILEGED & EXEMPT FROM DISCLOSURE THIS LETTER IS INTENDED SOLELY FOR THE USE OF THE ADDRESSEES HEREOF.
Re: Jacqueline Mittelstadt, City Attorney of South Lake Tahoe (“SLT”) - Mittelstadt’s 9/3/09 ERMA Complaint & - SLT’s 9/8/09 Notice of Intended Removal Gentlemen: My office has been retained by Ms. Mittelstadt regarding her September 3, 2009 ERMA Complaint and the City of South Lake Tahoe's (“SLT”) September 8, 2009 Notice of Intended Removal. These items are clearly intertwined, so we are providing the same information to both of you. Following this page is a Table of Contents to facilitate your review, and further confidentiality of this document. Following the Table of Contents is our analysis. The goal of this letter is to apprise you of just the central facts at issue, and convince SLT to not remove Ms. Mittelstadt but instead allow her to return to work immediately.
October 4, 2009 Page 2 of 16 Re: J. Mittelstadt
TABLE OF CONTENTS I
SUBSTANTIAL LIBERTY INTEREST PRESENT
IMPARTIAL DECISION MAKERS MUST HOLD HEARING…..
PROPOSED TERMINATION IS IN RETALIATION FOR CITY ATTORNEY PROVIDING HONEST / ACCURATE LEGAL ADVICE AND REVEALING VIOLATIONS OF LAW ……………
A) Recommendation that Outside Counsel Hiring be Consolidated and City Manager’s Authority be Reduced, Eliminated, or Clarified
B) City Manager’s Illegal Actions To Retain Exclusive Authority Over Finance Department And Authority To Pay Outside Counsel Without City Council Authority, All Resulting From Mittelstadt’s Disclosures And Efforts To Follow City Council Directives. …………….
i. Refusal by City Manager and Finance Director to Produce Public Records to City Attorney. ……………
ii. July 15, 2009 Report to City Council that City Manager Threatened Litigation Against City Consequent to Outside Counsel Hearing. …………………… 10 iii. August 4, 2009 Report to City Council that City of San Diego City Council Had Independent Financial Advisor After SEC Investigation.
iv. City Manager Convinced The Assistant City Attorney To Change The City Attorney’s Office’s Report To The City Council Without Ms. Mittelstadt’s (The City Attorney’s) Knowledge Or Approval ……….
v. On August 17, 2009 (And Again On September 1, 2009) The City Manager Made Ms. Mittelstadt A Quid Pro Quo Offer To Have Her Change Her Legal Analysis In Exchange For His Arranging To Have The Complaints Against Her Dropped ………………..
October 4, 2009 Page 3 of 16 Re: J. Mittelstadt
vi. City Manager’s Refusal To Place PARSAC Representative Issue On Agenda In An Effort To Maintain His Own Authority Over The Matter ……
v. Mittelstadt’s Reporting Of Other Illegal Conduct For Which She Is Being Retaliated Against ……………..
vi) City Manager’s And Finance Department’s Contradictory Data Regarding Copy Machine Costs …
C. Discussions re Ms. Mittelstadt Outside Counsel Chambers are Illegal. ……………….
D. Allegations Against Ms. Mittelstadt Are Unfounded, Having Been Based On An Unsubstantiated And Uninvestigated Complaint; Evidence Of Differential Treatment Regarding Refusal To Change Legal Analysis. ……………………………… 15
E. Labor Code 96(k): Prohibits an Employer From Taking Adverse Action Related to Conduct Occurring Outside of Non-working Hours and Away From Employer ‘s Premises. ……………….. 16 V
October 4, 2009 Page 4 of 16 Re: J. Mittelstadt
I INTRODUCTION On September 3, 2009 Ms. Mittelstadt complained to SLT’s Employer’s Resource Management Association (“ERMA”) hotline reporting that she was being retaliated against by SLT for providing honest legal advice and reporting violations of law and public policy by and to SLT. The basis of Ms. Mittelstadt’s complaint is outlined herein, and is based on her reporting violations of law and violation of public policy prior to September 3, 2009, and the majority SLT’s divided City Council’s call for her resignation on September 3, 2009 due to the disclosures she made prior to that date. On September 8, 2009, SLT sent Ms. Mittelstadt a letter advising of their intent to remove her from office, based on a 3 to 2 vote by the City Council on September 3, 2009. Ms. Mittelstadt is being afforded a hearing to occur on October 6, 2009 regarding the intended removal. According to the September 8, 2009 letter from SLT, the purpose of the October 6, 2009 hearing is twofold: The purpose of the hearing is to allow you to present to the City Council your grounds for opposition, if any, to removal prior to the City Council's final action. This hearing is also your opportunity to be heard on any matters relating to your employment. The letter further states that the City Council intends to: …remove you from your office of City Attorney, … The reasons for the intended removal are incompatibility of management styles and work performance that is inconsistent with the City Council's expectations. Ms. Mittelstadt opposes the intended removal, and seeks to retain her position. The facts make it clear that the intention to remove Ms. Mittelstadt is in direct retaliation for Ms. Mittelstadt providing SLT honest legal advice, disclosing violations of law and public policy, refusing to violate the Brown Act at some City Council member’s request, and her refusal to accept the City Manager’s August 17, 2009 (written) and September 1, 2009 (verbal) quid pro quo offers to make the complaints against her “go away” if she changed her legal analysis and recommendations regarding: • the City Manager’s authority to incur and pay items without the City Council’s knowledge; and • SLT’s Financial Department’s (the City Manager’s subordinate department) complete autonomy and independence from the City Council. Based on those facts, Ms Mittelstadt also requests that ERMA investigate her complaint, confirm her allegations, and protect her continued employment.
October 4, 2009 Page 5 of 16 Re: J. Mittelstadt
II SUBSTANTIAL LIBERTY INTEREST PRESENT. The September 8, 2009 letter makes it clear that Ms. Mittelstadt has a substantial liberty interest at stake here. In addition to the terms of both the City Attorney’s contract and City of South Lake Tahoe Code (“City Code”) section 2-66, Ms. Mittelstadt has a substantial liberty interest in: continued employment with SLT; contesting the charges by SLT against her; and in righting the record. Termination or discipline of any sort at this juncture would necessarily impugn Ms. Mittelstadt’s reputation and impose a stigma on her that would foreclose her freedom to take advantage of other employment opportunities. As such, Ms. Mittelstadt has a constitutionally protected liberty interest arising from SLT’s September 8, 2009 notice, and is entitled to due process to address and decide the charges against her. Cox v. County of San Diego (1991) 233 Cal.App. 3d 300; Lubey v. City and County of San Francisco (1979) 98 Cal. App. 3d 340; Board of Regents of State Colleges v. Roth (1972) 48 U.S. 564. In a conversation on August 17, 2009, Councilman Lovell confronted Ms. Mittelstadt with some of the private information circulating about her, and some of the false information circulating about her. Ms. Lovell refused to allow Ms. Mittelstadt to clarify the record by drafting a memo about those specific allegations. In addition, the City Manager refused to bring the alleged written complaints against Ms. Mittelstadt into a closed City Council meeting for review. Further, the Mayor Pro Tem and Councilman Grego pressured the City Attorney to remove from Closed Session a discussion of an alleged August 10, 2009 complaint against the City Attorney’s office. Councilman Cole, after making false allegations to the City Attorney regarding her conduct refused to discuss the false allegations. Councilman Grego asserted that Ms. Mittelstadt took a “defensive posture” when she attempted to discuss the alleged complaint by “citing her constitutional rights’ of privacy and personnel protections” when advising the City that the dissemination of any complaints to other than the City Council were not proper. In addition, Ms. Mittelstadt’s interest in continued employment with SLT necessarily concerns her rights to substantive due process under the Fourteenth Amendment of the U.S. Constitution. III IMPARTIAL DECISION MAKERS MUST HOLD HEARING. An impartial fact finder must conduct the hearing to which Ms. Mittelstadt is entitled. See, Haas v. County of San Bernardino (2002) 27 Cal. 4th 1017. Burrell v. City of Los Angeles (1989) 209 Cal. App. 3d 568, 582. Parker v. City of Fountain Valley (1981) 127 Cal. App 3d 99, 116-117; Stanton v. City of West Sacramento (1991) 226 Cal.App.3d 1438, 1443. Unfortunately, prior to the October 6, 2009 hearing certain Council members participated in ex parte communications regarding the merits of Ms. Mittelstadt’s continued employment. Those communications constituted violations of the
October 4, 2009 Page 6 of 16 Re: J. Mittelstadt
Brown Act and violations of California Government Code section 11430.10 [no ex parte communications to presiding officer while matter pending]. Moreover, the facts establish that certain Council members have a demonstrable bias that strongly suggest a lack of impartiality in regards to Ms. Mittelstadt’s continued employment. Those facts are described below, and include a Council member’s facilitation a quid pro quo offer to Ms. Mittelstadt from the City Manager that if she were to change her legal analysis, the City Manager would in exchange instruct his subordinates and obtain their “agreement to drop their complaints” against Ms. Mittelstadt. Those Council members should disqualify themselves from a vote on Ms. Mittelstadt’s continued employment, or the matter should be referred to an impartial third party.
IV PROPOSED TERMINATION IS IN RETALIATION FOR CITY ATTORNEY PROVIDING HONEST / ACCURATE LEGAL ADVICE AND REVEALING VIOLATIONS OF LAW California Labor Code section 1102.5 states: (a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment. (e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b). …
October 4, 2009 Page 7 of 16 Re: J. Mittelstadt
The facts establish that Ms. Mittelstadt is being retaliated against by SLT in violation of the above statute. A) Recommendation that Outside Counsel hiring be Consolidated and City Manager’s Authority be Reduced, Eliminated, or Clarified On June 30, 2009, Ms. Mittelstadt, in her role as City Attorney, advised the City Council in open session that the City Manager had violated City Code section 2-34 by authorizing a payment $69,000 to one of the City’s outside counsel. Ms. Mittelstadt reported that the City Manger instructed other payments to other counsel and instances of seriatim payments, which may or may not have been within the City Manager’s authority depending on the gross amount of the City Manager’s authority. As a result of Ms. Mittelstadt’s report, at that City Council meeting, in open session, and preserved on video, members of the City Council called for the resignation of the City Manager. Although the City Manager reported to the City Council that the City Attorney’s Office report was false, incomplete or inaccurate, the City Manager has failed to provide any evidence to show that the City Attorney’s Office’s report was inaccurate. To the contrary, the Finance Department (which reports directly and exclusively to the City Manager based on current SLT City Codes) has refused to provide backup financial documentation regarding non-attorney professional service providers to the City Attorney’s Office. This despite the fact that City Council’s Finance Committee directed the City Attorney’s Office to obtain and review this information. Subsequent to the June 30, 2009 disclosure, the City Council instructed to the City Attorney, Ms. Mittelstadt, and the Assistant City Attorney, Patrick Enright, to draft an amendment to SLT City Code Section 2-34, which would eliminate the City Manager’s authority to hire outside counsel without the City Council’s authorization. As a result of that instruction, and Ms. Mittelstadt’s attempts to follow it and not violate the Brown Act, Ms. Mittelstadt was retaliated against. When she refused to capitulate, the City Manager offered her quid pro quo arrangement to alter her legal analysis and recommendations. Ms. Mittelstadt has since repeatedly been asked by City Council members friendly to the City Manager to disclose information in violation of the Brown Act. B) City Manager’s Illegal Actions To Retain Exclusive Authority Over Finance Department And Authority To Pay Outside Counsel Without City Council Authority, All Resulting From Mittelstadt’s Disclosures And Efforts To Follow City Council Directives. Pursuant to City Code 2-24, the City Manager has the duty to “perform such other duties and exercise such other powers as may be delegated to him from time to time by ordinance or resolution or other action of the city council.” Similarly, the City Attorney shall perform “such other duties as may be imposed by statute, by any ordinance of the city or by other action of the city council.” Thus, when the City Council directed the City Attorney and the City Manager to act, it was their mandatory duty to do so. In fact,
October 4, 2009 Page 8 of 16 Re: J. Mittelstadt
failure to perform an act required by the City Council pursuant to this duty constitutes an infraction or a misdemeanor punishable by $1,000 or six months in jail. City Code §1-7. The facts show that the City Manager violated his duties and conspired to prevent the Ms. Mittelstadt from performing her duties under the Code. During the June 30, 2009 hearing, the City Council directed that the City Attorney’s office investigate and return for discussion a “Re-organization plan.” The City Council also directed Ms. Mittelstadt to recommend code changes relating to the City Manager, including the City Manager’s authority to hire and pay outside counsel. The City Manager was directed by the City Council to cooperate with Ms. Mittelstadt in performing an analysis of the current state of affairs. However, the City Manager refused to follow the City Council’s direction, and attempted to frustrate Ms. Mittelstadt in her efforts comply with the directive as follows: i) Refusal by City Manager and Finance Director to Produce Public Records to City Attorney. In order to prepare the budget for the City Attorney’s office for fiscal year (“FY”) 10/09 to FY 10/10, Ms. Mittelstadt required information regarding past payments to outside counsel in order to project the legal hours required to be performed by the City Attorney’s office. In order to effectuate the Council’s direction to prepare a reorganization plan as well, Ms. Mittelstadt required information on outside counsel and the City Attorney’s office needs. Ensuing investigations by Ms. Mittelstadt regarding outside counsel costs through the City Manager and his subordinate department, the Finance Department, revealed that Finance Department’s numbers relating to outside counsel repeatedly changed for identical periods. Ms. Mittelstadt has been advised by Council members that prior to her being hired as City Attorney, they too had problems obtaining accurate and consistent information from the City Manger and the Finance Department regarding outside counsel. To commence investigation Ms. Mittelstadt’s 2009 investigation, Ms. Mittelstadt obtained past public records relating to City expenditures for outside counsel from the Finance Department. She also obtained an index from the Redevelopment Department. Based upon the information relating to firms the City hired in (FY 07-08), and (FY 0809). The numbers were reviewed by Ms. Mittelstadt and were discussed and finalized in conjunction with the Finance Department prior to dissemination of the June 30, 2009 report. However, after June 30, during a July meeting between the City Attorney, the Finance Department, and the City Manager, the Finance Department provided a new report relating to expenditures on outside counsel. Ms. Mittelstadt reviewed the new report from the Finance Department and determined that there were some stark contrasts from what the Finance Department originally reported. The new report contained different payments for the same firm and the same period of time than were originally reported by the Finance Department.
October 4, 2009 Page 9 of 16 Re: J. Mittelstadt
On July 15, 2009, after numerous meetings and communications trying to confirm the outside counsel numbers, Ms. Mittelstadt apprised the City Manager that “Pat and I have had difficulty pinning the numbers down” . As such, Ms. Mittelstadt requested the City Manager to confirm numbers given the City Attorney's office. The City Manager surprisingly replied by asking Ms. Mittelstadt not to disclose to the City Council that “Finance is not helping.” Ms. Mittelstadt continued efforts to work with the City Manager and Finance Director relating to the outside counsel numbers. On July 31, 2009, the Ms. Mittelstadt inquired via email to the Finance Director and the City Manager for clarification regarding a $104,545 difference for one firm, $31,158 for another, and $24,165 for a third. Additionally, her inquiry requested clarification of discrepancies between the Finance Department’s 2009 reports that directly contrasted documentations they provided the City council on September 15, 2008 (prior to Ms. Mittelstadt’s hire). In the September 15, 2008 report, the Finance Department reported that the total for Redevelopment outside counsel for all but three weeks of FY 07-08, was $101,405.44; but they reported $142,733.66 in the July 2009 budget meeting. Ms. Mittelstadt attached to her inquiry the 2008 totals, the June 2009 totals, and the July 2009 totals for convenience. City Council was notified of the outside counsel numbers changing on this date as well. On July 28, and again on July 30, 2009, Ms. Mittelstadt notified the City Manager regarding the problems surrounding the outside counsel numbers and requested his assistance. On August 1, 2009, Ms. Mittelstadt sent a follow-up inquiry regarding outside counsel budgeted amounts for the prior two fiscal years, along with re-iterating the expenditure request from the previous day. Ms Mittelstadt’s request included the shift in how the budgeting was to occur in FY 09-10 to include all budgeted amounts in the City Attorney budget, rather than each department budget, per City Council direction June 30, 2009. On August 3, 2009 the Finance Department staff emailed Ms. Mittelstadt and confirmed her conclusions that the numbers did indeed frequently differ. The Finance Department revealed a serious accounting problem reporting that: “it is hard to compare apples to apples when so many different expense codes are used for these legal bills!” On August 6, 2009, Ms. Mittelstadt notified the Council Finance Committee of the Finance Department’s explanation. On or about August 6, 2009, Ms. Mittelstadt requested additional clarification from the Finance Department. Immediately, thereafter on August 7, 2009, the City Manager, who is the direct supervisor of the Finance Department, blocked Ms. Mittelstadt’s request for clarification. Instead, the City Manager told Ms. Mittelstadt that his subordinates were complaining about her.
October 4, 2009 Page 10 of 16 Re: J. Mittelstadt
On August 8, 2009, Ms. Mittelstadt advised the Mayor Pro Tem of disparities in the Finance Department’s August 3, 2009 outside counsel reports. In addition, Ms. Mittelstadt advised the Mayor Pro Tem that the August 3, 2009 reports revealed the existence of a second City Manager Reserve Fund, which was previously unreported by the City Manager, and unknown to the City Council. It is important to note here, that on June 30, 2009 Ms. Mittelstadt first reported the existence of a City Manager Reserve Fund. Prior to Ms. Mittelstadt’s June 30, 2009 report, the City Council did not know that the City Manager was operating a City Manager Reserve Fund. During the June 30th hearing, the Mayor called the City Manager Reserve Fund a “slush fund” for the City Manager’s use without City Council approval. It was Ms. Mittelstadt’s June 30 report, which prompted the City Council to instruct to Ms. Mittelstadt to conduct further investigation. And on August 8, 2009, Ms. Mittelstadt reported that her further investigation revealed the City Manager was managing a second City Manager Reserve Fund, which had previously been undisclosed. Ms. Mittelstadt has since been informed that immediately after her August 8 revelation the City Manager reported that the Finance Director (the City Manager’s direct subordinate) had filed a written complaint about the City Attorneys office on August 10. The written complain reportedly complains about the both Ms. Mittelstadt and Mr. Enright. This appears to be a direct effort by the City Manager and his the Finance Department to thwart any further investigation into their slush funds and payments to outside counsel. ii. July 15, 2009 Report to City Council that City Manager Threatened Litigation Against City Consequent to Outside Counsel Hearing. In an additional attempt to blackmail the City from further investigating the payments to outside counsel without the City Council’s approval, during a July 15, 2009 meeting between the City Manager and both the City Attorney (Ms. Mittelstadt) and the Assistant City Attorney (Mr. Enright), the City Manager threatened litigation against the City and the Mayor personally if the investigation continued. The City Manager stated that the City had to “be careful” on how they dealt with him on this issue, or else he threatened: “to sue”; to “sue the mayor personally”; to “retain outside counsel”; and/or to “file a workers’ compensation claim”. Ms. Mittelstadt reported the City Manager’s threats to City Council that day. / / / iii. August 4, 2009 Report to City Council that City of San Diego City Council Had Independent Financial Advisor After SEC Investigation.
October 4, 2009 Page 11 of 16 Re: J. Mittelstadt
As a consequence of the City Council members’ discontent with the City Manager’s expenditures on outside counsel, and changing data from the Finance Department, the Finance Committee of the City Council began exploring an idea raised by Council member Cole to have the City’s Finance Director report directly to the City Council, rather than to the City Manager. Councilman Cole reiterated this issue after a meeting he attended a meeting with the City Manager and the Finance Director in which Councilman Cole described that the Finance Director was getting “stink eye” from the City Manager when she was candidly responded to Councilman Cole’s budget inquiries. Per Cole’s request, the Mayor placed on the Strategic Planning Session agenda a discussion of this issue. (“CFO Item”). Unfortunately, the morning of the meeting, the Mayor’s printer did not work, and per the Mayor’s request, in an email the City Attorney asked the City Clerk to make copies of the agenda and to distribute the agenda to the Council. Instead, the City Attorney Legal Assistant performed that function. That lead to the mistaken impression that the City Attorney had put the matter on the Agenda, when in fact, this City Attorney did put this matter on the Agenda, which can be confirmed by the Mayor. However, it appears that Ms. Mittelstadt is suffering the consequences of the mistaken impression. iv. City Manager Convinced The Assistant City Attorney To Change The City Attorney’s Office’s Report To The City Council Without Ms. Mittelstadt’s (The City Attorney’s) Knowledge Or Approval To his credit, the Assistant City Attorney, Mr. Enright, has come forward and advised Ms. Mittelstadt that he changed the City Attorney’s Office’s official recommendations to the City Council regarding amendments to Code 2-24 (re City Manager’s authority to pay outside counsel) and recommendations regarding the hierarchical reporting requirements of the Finance Department (taking the CFO out from under the City Manager, “CFO issue”), without Ms. Mittelstadt’s knowledge and contrary to her instructions. To his credit, Mr. Enright has confirmed to both Ms. Mittelstadt, and on videotape, that he made those changes at the behest of the City Manager. Mr. Enright reports that throughout the week of August 10, 2009, the City Manager repeatedly asked Mr. Enright how the City Manager could remove the CFO item from the City Council agenda. The City Manager had denied the City Manager’s direct request to take the matter off the agenda, so the City Manager was reportedly looking for an alternate solution. As a result of those conversations, Mr. Enright agreed to change the draft of the amendments to City Code 2-24 that Ms. Mittelstadt had approved and the City Council had requested, without telling Ms. Mittelstadt. Mr. Enright’s changes restored the City Manager’s authority to pay outside counsel. To his credit, at the August 18, 2009 City Council Meeting, Mr. Enright admitted on video that he made those changes without Ms. Mittelstadt’s knowledge or approval. Prior to the August 18, 2009 City Council Meeting, Mr. Enright, advised Ms. Mittelstadt that he had made those changes behind Ms. Mittelstadt’s back. As a result, Ms. Mittelstadt had to advise the City Council that the amendments to 2-24 had to be removed from the City Council agenda. Although one would tend to commend Mr.
October 4, 2009 Page 12 of 16 Re: J. Mittelstadt
Enright for his after-the-fact honesty, it is important to note that the City Manager attained his goal, the matter was taken off the agenda. v. On August 17, 2009 (And Again On September 1, 2009) The City Manager Made Ms. Mittelstadt A Quid Pro Quo Offer To Have Her Change Her Legal Analysis In Exchange For His Arranging To Have The Complaints Against Her Dropped After the City Manager reported that the Finance Department had made written complaint against Ms. Mittelstadt on August 10, and after Ms. Mittelstadt alerted the City Council that the 2-24 and the Finance Department’s reporting requirements had to taken off the August 18 agenda, the City Manager sent Ms. Mittelstadt an email on August 17, 2009, a day before the scheduled August 18, 2009 Council meeting. In that email, the City Manager offered Ms. Mittelstadt a quid pro quo arrangement to get her to change her legal analysis and recommendations. The City Manager’s email stated he would arrange to have the complaints against Ms. Mittelstadt dropped, if she changed her legal analysis. The City Manager wrote: “[if you agree that] [a]ny matter or consideration to make the Finance Director an at-will employee reporting to the City Council will be stopped…. I will discuss them with the parties that have filed complaints and seek their agreement to drop their complaints [against you].” The City Manager reiterated that quid pro quo offer on September 1, 2009. On that date, the City Manager stated he would make the complaints against Ms. Mittelstadt "go away" if Ms. Mittelstadt provided written notification of her agreement to cease discussion of the CFO issue and agree to his version of 2-24. vi. City Manager’s Refusal To Place PARSAC Representative Issue On Agenda In An Effort To Maintain His Own Authority Over The Matter Another illegal action by the City Manager was his unilateral cancellation of a City Council directed agenda item to have a PARSAC presentation, and review appointment of City’s PARSAC representative. The City Manager argued that Ms. Mittelstadt should not be the PARSAC designated representative, as he wanted to maintain control over the matter. Therefore, he refused to place the matter on the agenda, despite the City Council’s direction. The City Manager’s conduct was in violation of City Code sections 2-24 and 1-7. v. Mittelstadt’s Reporting Of Other Illegal Conduct For Which She Is Being Retaliated Against Other examples of misconduct, violations of the law or information generating retaliation include:
October 4, 2009 Page 13 of 16 Re: J. Mittelstadt
• • • • •
August. 21, 2009 advice to City Manager that EAP Contract Required Sole Source Factual Basis or Must Obtain Proposals per Code section 2-34; Report to Assistant City Attorney/ City Manager/ Redevelopment Director/ Mayor Pro Tem Permit Approved by Redevelopment Director Not Legal Without Board Action Absent Express Legal Authority; August 7, 2009 Report to City Manager, City Attorney’s Office Investigating Chateau Project Owner Participation Agreement Breach by Developer; Aug. 17, 2009 Direction From Council members Not to Report City Manager False Representations to the City Council; August 8, 2009 Report to Mayor Pro Tem of Second City Manager “Slush Fund” Should be investigated.
The factual history shows that Ms. Mittelstadt’s disclosures of those violations and conduct, and refusal to violate the Brown Act or engage in quid pro quo arrangements regarding the City Attorney’s legal analysis and recommendations, were the trigger for retaliatory actions. In addition, a review of the City Attorneys’ office repeated documented notifications to both the City Manager and to the members of the City Council of problems with the Finance Department belie the truth of the Finance Department Director’s complaint against the City Attorney's office and/or the City Manager’s motivation to act upon it. Documented notifications include, but are not limited to: July 10, 2009, July 13, 2009, July 14, 2009, July 15, 2009, July 20, 2009, July 21, 2009, July 24, 2009, July 25, 2009, July 26, 2009, July 31, 2009 (numerous emails), Aug. 3, 2009, Aug. 5, 2009, Aug. 7, 2009, and Aug. 8, 2009. In addition, numerous verbal communications occurred on an ongoing basis during this time frame as well. vi) City Manager’s And Finance Department’s Contradictory Data Regarding Copy Machine Costs As part of Council unanimous direction during a previous City Council meeting, Councilman Bruce Grego directed that a cost comparison between leasing and buying a copy machine for the City Attorney’s Office be performed. Regarding the copy machine inquiry, according to the City Attorney’s investigation, based upon information from the Finance Department and Purchasing Department, purchase of a copier was $10,000, whereas leasing was $4,620 per year plus per copy charges which were between $12,000 and $13,000 per year. Reports varied first indicating that copy costs covered only one machine, then later up to four machines. Concerned about the accuracy of the data, the City Attorney’s Office requested the invoices comprising the total per copy charges. The Finance Director and City Manager first deflected, then refused, to provide these public records. The City Attorney’s investigation included communications immediately preceding the filing of a false complaint against the City Attorney’s Office and then used by the City Manager and the Finance Director to engage in retaliatory actions and quid
October 4, 2009 Page 14 of 16 Re: J. Mittelstadt
pro quo demands in efforts to persuade the City Attorney to alter her reports and/or prevent her fulfilling her duties as directed by the City Council. C. Discussions re Ms. Mittelstadt Outside Counsel Chambers are Illegal. Members of the City Council violated section 54952.2 of the California Government Code by participating in multiple meetings outside of City Council meetings to discuss the City Attorney’s legal recommendations and the City Council’s proposed retaliatory actions against her. Under this section, individual contacts cannot be used to serve as communications between Council members, with or without the use of intermediaries, to develop concurrence among a majority on action to be taken by the City Council. Cal. Gov. Code §54952.2 (b)(1); See also Wolfe v. City of Fremont (2006), 144 Cal. App. 4th 533., (legislatively overruled only as to footnote 6). The Brown Act prohibits the use of a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the City Council. Cal. Gov. Code §54952.2 (b)(1); Stockton Newspapers Inc. v. Redevelopment Agency (1985) 171 Cal. 3d 95; 65 Cal. Op. Att’y Gen 63 (1982); 63 Cal. Op. Att’y Gen 820 (1980). Indeed, substantive briefings, emails, and conversation between intermediaries (such as staff or attorneys) and a majority of the body constitutes illegal seriatim meetings, whether or not the intermediary is being “used” by the members to develop a collective concurrence. See, Office of the California Attorney General, Civil Division, The Brown Act: Open Meetings for Local Legislative Bodies, 12 (2003); 84 Cal. Op. Att'y Gen. 30 (2001). Ms. Mittelstadt has been provided information that certain Council members not only participated in a series of communications in order to create a collective concurrence regarding her performance evaluations, but also that private information about her, some true and some not true, has been shared. For example, she has been specifically told by persons not on the Council, that they heard that the Council instructed her to “participate in counseling”; for example, documentation regarding Ms. Mittelstadt’s personal conduct occurring outside of non-working hours and away from SLT‘s premises has been distributed for purposes of influencing the Council’s evaluation of her performance, including litigation that she is involved in against a former employer. Ms. Mittelstadt’s due process rights prohibit such ex parte communications, independently of her rights under the Brown Act. Safeway Stores, Inc. v. City of Burlingame (1959) 170 Cal.App.2d 637, 649; Clark v. City of Hermosa Beach (1996) 48 Cal. App. 1152. In addition, Council members Lovell and Grego on August 17, 2009 demanded that Ms. Mittelstadt disclose information about the identity of a third Council member, and the substance of the conversation of the third Council member and an upcoming special closed session. Ms. Mittelstadt did not disclose information that she was prohibited from disclosing by law. In addition, on August 16, 2009 Councilman Cole requested Ms. Mittelstadt to place on closed session agenda her personnel evaluation. On September 2, Council member Grego
October 4, 2009 Page 15 of 16 Re: J. Mittelstadt
initiated a discussion requesting that the issue of Ms. Mittelstadt’s performance evaluation be placed on a closed session agenda. Additionally, Mayor Pro Tem Lovell discussed complaints and performance of the City Attorney with Councilman Grego prior to the August 17, 2009 meeting. These are just a few examples of the City Council’s standard practice to violate the Brown Act. While these are limited to matters that concerned Ms. Mittelstadt personally, Ms. Mittelstadt can cite are multiple other violations concerning illegal seriatim meetings. D. Allegations Against Ms. Mittelstadt Are Unfounded, Having Been Based On An Unsubstantiated And Uninvestigated Complaint; Evidence Of Differential Treatment Regarding Refusal To Change Legal Analysis. On August 14, 2009, the City Attorney was apprised of the existence of complaints by City staff against Ms. Mittelstadt. To date, she has not been informed of anything more in relation to those complaints. The September 8, 2009 Notice of Intended removal specifically states that “[t]he reasons for the intended removal are incompatibility of management styles and work performance …” As such, due process requires that Ms. Mittelstadt be provided the basis of those allegations. Common sense dictates that the alleged complaints against her from the Finance Department and anyone must be part of that disclosure. Due process requirements have not been meet if an employer considers items that have not been provided to employee. Vollstedt v. City of Stockton (1990) 220 Cal. App. 3d 265, 275-276. The complaints having been made, SLT cannot credibly allege that they are not to be considered. Moreover, Labor Code section 1198.5 mandates that the City Attorney be provided access to any records used by her employer to evaluate performance. Moreover, given that: • it is abundantly clear that those alleged complaints originate from the very department that the City Council asked Ms. Mittelstadt to investigate; BUT • the City Council has chosen not to investigate those complaints before voting to remove Ms. Mittelstadt; any City Council decision to terminate Ms. Mittelstadt’s contract at this time would substantiate her claim of retaliatory discharge. In addition, given that the City Manager told the Ms. Mittelstadt that the alleged complaints against her, are also against Mr. Enright, the differential discipline against her indicates that it is retaliatory for her refusal to change her legal analyses. Whereas, the videotape of the August 18, 2009 City Council Meeting confirms that Mr. Enright admitted that he changed the City Attorneys’ recommendations without Ms. Mittelstadt’s knowledge and at the direction of the City Manager. E. Labor Code 96(k): Prohibits an Employer From Taking Adverse Action Related to Conduct Occurring Outside of Non-working Hours and Away From Employer ‘s Premises.
October 4, 2009 Page 16 of 16 Re: J. Mittelstadt
California Labor Code section 96(k) prohibits an employer from taking adverse action related to conduct occurring outside of non-working hours and away from employer ‘s premises. On approximately August 23, 2009, Council member Cole met with Mr. Enright. Council member Cole had a copy of a litigation matter Ms. Mittelstadt filed against a former employer. According to Mr. Enright, Council member Cole wanted to go through the lawsuit. Cole stated that he was very upset upon learning that Ms. Mittelstadt had been involved in prior personal litigation. It is our understanding that other members of the Council have been provided copies of those documents, including Council members Cole, Grego and Lovell. In addition, those documents were distributed at or near the time of the filing of an August 10, 2009 complaint against Ms. Mittelstadt by the Finance Department. The City Council’s retaliation against Ms. Mittelstadt for her involvement in any lawful activity outside of work is a violation of both Labor Code section 96, and her rights under the California Constitution. V CONCLUSION Ms. Mittelstadt desires to continue working as the City Attorney for the City of South Lake Tahoe. It is her hope that with these matters out of the way, she can work closely with both the City Manager and the City Council to fulfill her obligations as City Attorney to the City and to the public at large. Although she was not informed of this until after she accepted the City’s offer or employment, the roles between the prior City Attorney and the City Manager were contentious: namely, the two were ordered to go to counseling. Subsequent to her hire, Ms. Mittelstadt was also informed that at least in part, the issues stemmed from the City Manager’s difficulty with the existence of a department head that is “independent” of his authority. It is our hope that the City Council will take those matters into consideration, and will allow Ms. Mittelstadt to return to work immediately. Ms. Mittelstadt’s keen eye, accurate analysis, and refusal to violate the Brown Act, will elevate the level of professionalism of this South Lake Tahoe’s City government by ensuring the legality of all its actions, in a manner that she hopes all current members of this administration hope to achieve. Sincerely, LAW OFFICE OF BRICTSON & COHN By: Timothy L. Brictson cc: Jacqueline Mittelstadt
Published on Oct 20, 2009