HomeMy WebLinkAbout17- Resolution 1
RESOLUTION NO.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF
3 THE CITY OF SAN BERNARDINO, CALIFORNIA,
CONTAINING THEIR FINDINGS WITH REGARD TO
4 ALLEGATIONS OF SEXUAL HARASSMENT AGAINST CITY
ATTORNEY JAMES PENMAN AND AUTHORIZING OFFICIAL
5 ACTIONS THERETO, INCLUDING DIRECTION TO CITY
ATTORNEY PENMAN AND THE MAYOR
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WHEREAS, the City of San Bernardino received verbal and
7 written notice of possible sexual harassment in the workplace in
8 May 1994, and immediately authorized the investigation of that
9 and other complaints of similar harassment by employees against
10 City Attorney James Penman; and
11 WHEREAS, the Mayor and Common Council of the City of San
12 Bernardino (the "Council") on May 26, 1994 , retained the law firm
13 of Kay & Stevens to respond to certain questions of the Council
14 related to the allegations of sexual harassment; and subsequently
15 retained the law firm of Kay & Stevens to conduct an
16 investigation, assess the City' s liability, recommend legal
17 strategies for minimizing liability, and prepare a report,
18 including findings of fact and recommendations for corrective
19 action, if any, to the Council ; and
20 WHEREAS, Kay & Stevens conducted research and interviewed
21 approximately thirty-five (35) people in conjunction with this
22 investigation, not including Mr. Penman, who declined to be
23 interviewed; and
24 WHEREAS, the investigation has now been completed and the
25 findings of Kay & Stevens have been presented to the Council in
26 a confidential report that is hereby accepted by the Council; and
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WHEREAS, the Mayor and Common Council have offered Mr.
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Penman the opportunity to review the allegations, findings and
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recommendations contained in that report and provide a response
4 to the Mayor and Common Council prior to Council action, which
5 opportunity Mr. Penman has declined.
16 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
7 SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE, DETERMINE
8 AND ORDER AS FOLLOWS:
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10 SECTION 1. Findings
11 The findings of the special investigator demonstrate:
12 a. That, given the totality of the circumstances, Mr.
13 penman engaged in unwelcome workplace conduct of a sexual nature
14 sufficiently severe and/or pervasive to alter the work conditions
15 of specific employees and create a hostile working environment;
16 and that such conduct was unacceptable for an elected official,
17 or anyone in the workplace.
18 b. That Mr. Penman engaged in quid pro quo sexual
19 harassment, in that Mr. Penman requested gender-based favors of
20 specific subordinates as an express or implied condition to a
21 tangible aspect of the employees ' employment.
22 C. That Mr. Penman attempted to retaliate against
23 identified City employees for attempting to correct his conduct.
24 d. That the investigation and analysis conducted by
25 Kay & Stevens was careful, thorough and fair to all parties
26 involved, including City Attorney Penman.
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e. That the process was designed to be corrective and
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not punitive and that its success will depend, in part, on the
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willingness of Mr. Penman to cooperate.
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16 SECTION 2 . Remedial Action Directed by the Council (Mr.
7 Penman)
8 The Council acknowledges its legal duty to prevent all forms
9 of unlawful sex discrimination, including sexual harassment and
10 retaliation. The Council recognizes that Title VII of the Civil
11 Rights Act of 1964 and 1991, as well as the California Fair
12 Employment and Housing Act, require employers to promptly
P Y
13 investigate complaints of sexual harassment and intervene to
14 effectively stop workplace harassment. Legal responsibilities
15 aside, the City of San Bernardino benefits from the increased
16 productivity, higher employee morale and decreased employee
17 turnover that results from a work environment that is free from
18 all forms of unlawful sexual harassment. With this goal and
19 conviction in mind, the Council hereby directs and requests Mr.
20 Penman to do the following:
21 a. Within ninety (90) days attend a comprehensive
22 training and educational program in sexual harassment of not less
23 than six (6) hours in duration as recommended by Special Counsel
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24 Kay & Stevens.
25 b. Within ninety (90) days provide the Mayor with a
26 written plan to provide written Employee Evaluation Reports
27 consistent with the practices set forth in Resolution 12420 re:
28 Employee Evaluation Reports. In the event such a plan is not
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1 submitted or implemented in a timely fashion, the Mayor shall
2 prepare for Council consideration and possible action a
3 resolution amending Resolution 12420 to eliminate the current
4 exemption for employees serving under or in the department of
5 elect officials.
16 c. Refrain from engaging in any conduct or making any
7 comments which would constitute either sexual harassment or
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8 retaliation; and, in that regard, refrain from any question,
9 discussion or comment in any way regarding the subject of this
10 investigation with any person who participated in the
11 investigation, without first gaining consent of the Mayor.
12 d. The Council hereby advises Mr. Penman, pursuant to
13 California Government Code Section 995 et seq. , that the City
14 will not expend taxpayer funds to defend him against claims of
15 sexual harassment, or any civil action or proceeding arising
16 therefrom, that may occur in the future.
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18 SECTION 3 . Remedial Action Directed by the Council
19 (Mayor)
20 The Council hereby directs and requests the Mayor to
21 undertake the following remedial actions:
22 a. The Mayor shall monitor the interactions among
23 employees to be reasonably certain that retaliation or harassment
24 is not recurring with respect to any of the employees identified
25 as complainants in the Kay & Stevens report. The Mayor' s Office
26 shall promptly investigate any future complaints of sexual
27 harassment, retaliation or vindictive conduct lodged by the
28 complainants identified in the report, and take prompt and
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appropriate disciplinary action if the complaints are
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substantiated.
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b. The Mayor shall agendize for reconsideration and
4 possible action by the Council Urgency Ordinance MC-839.
5 C. The Mayor shall investigate and report back to the
6 Council the feasibility f and
y processes necessary to impose upon
7 Mr. Penman a loss of pay for a two-week period.
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8 d. The Mayor shall, in writing, direct and request
9 Mr. Penman to refrain from engaging in any conduct which would
10 constitute either sexual harassment or retaliation.
11 e. The Mayor shall communicate the results of this
12 investigation with the complainants. This may be done verbally
13 and/or in writing.
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15 SECTION 4 . Effective Date
16 The findings and determinations herein shall be final and
17 conclusive. This resolution shall take effect upon the date of
18 its adoption.
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2 I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
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Bernardino at a meeting thereof, held on the
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day of , 1995, by the following vote, to wit:
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COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
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' NEGRETE
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CURLIN
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HERNANDEZ
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OBERHELMAN
10 DEVLIN
11 POPE-LUDLAM
12 MILLER
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15 City Clerk
16 The foregoing resolution is hereby approved this day
of , 1995.
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19 Tom Minor, Mayor
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City of San Bernardino
Approved as to form
21 and legal content:
22 Special Counsel to the City,
Kay & Stevens
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24 BY:
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