HomeMy WebLinkAboutS6- City Attorney 'PITY OF SAN 13ERNA
F ]NO REQUEST FOP 'COUNCIL ACTION
James F. Per �ln, City Attorney Subject: Resolution Adopting an Updated
gym; Sexual Harassment Policy and
Repealing Resolutions Nos. 81-641
pt; City Attorney and 91-330 .
ate:
January 30 , 1995
nopsis of Previous Council action:
- Council approved Resolution No. 94-357
1994
November 22, resolving to amend the City' s sexual
harassment policy.
3ecommended motion:
I
Adopt Resolution.
I
Signature
i
5162
Contact person: Diane C. Roth Phone:
Ward:
Supporting data attached:
FUNDING REQUIREMENTS: Amount:
Source: Acct. No.
Acct. Description)
Finance:
Council Notes:
Agenda Item No.
75-0262
CITY OF SAN BERM .RDINO - REQUEST I jR COUNCIL ACTION
STAFF REPORT
The City' s sexual harassment policy is currently found in two
policy statements adopted by Resolution Nos . 81-641 and 91-330, and
in those resolutions themselves . Since the last amendment to the
City' s sexual harassment policy there have been some changes in the
law which should be included therein.
In addition, although Resolution No. 91-330 states that the
sexual harassment policy applies to "City employees, elected or
appointed officials, commission and board members, vendors, and
independent contractors, " the policy itself does not specifically
state to whom it applies .
On November 22, 1994, the Mayor and Common Council approved
Resolution No 94-357 , resolving to amend the City' s sexual
harassment policy to include, among other things, that it applies
to elected officials .
Attached is a resolution adopting a new sexual harassment
policy which accomplishes all of the above.
75-0264
C I T Y OF S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM
TO: MAYOR and COMMON COUNCIL
FROM: DIANE CATRAN ROTH, Deputy City Attorney
DATE: February 6, 1995
RE: Harassment/Sexual Harassment Policy
At agenda briefing on Thursday, Councilmembers Curlin and Miller
requested more information on what in the proposed harassment/
sexual harassment policy is new and what was contained i
City' s previous policy. n the
On November 22, 19941 Council approved Resolution No. 94-3571 by
which you resolved, among other things, to:
" [2 . ]a. Prepare an amendment to the City' s Policy
Statement on Sexual Discrimination and Harassment for
submission to the Mayor and Council which would:
I " 1 . Prohibit sexual harassment and discrimination
by an elected official;
112 . State that an employee can complain to the
employee' s supervisor, or the Affirmative Action Office,
about an elected official;
"3 . State that employees will not be retaliated
against for filing a sexual harassment claim against an
elected official .
i "b. Prepare an amendment to the City' s policy Statement
on Sexual Discrimination and Harassment for submission to the
Mayor and Council which would clearly state that the City will
promptly investigate, and put an end to, any acts of sexual
harassment that it knows or has reason to know of. "
The City' s current harassment/sexual harassment policy is currently
found piecemeal in four documents : Resolution Nos . 81-641 and 91-
330 and the policies adopted thereby. This proposed resolution
combines those four documents, including all of those areas
specified to be included in Resolution No. 94-357 , and updates the
Policy consistent with current law. +
What is found in this proposed policy which was not in the former
documents are:
S ��
TO: MAYOR and COMMON COUNCIL
DATE: February 6, 1995
RE: Harassment/Sexual Harassment Policy
PAGE: 2
1 . Penalty guidelines for elected officials . (After
researching the issue extensively, and discussing it with
numerous city attorneys in other cities as well as private
counsel who represent government entities, I have concluded
that unless there is some other specific authority to
discipline contained in the Charter, the only penalties that
may be imposed upon elected officials by the Mayor and Council
�I
is a private or public reproval . )
2 . The addresses and phone numbers of the State
Department of Fair Employment and Housing and the Federal
Equal Employment Opportunity Commission.
3 . Rights of the accused, including whatever due process
is required by law, to give notice of the due process rights
of the accused. All of these rights are currently accorded
classified employees pursuant to the Charter, Civil Service
Rules, case law and the Constitution, before any adverse
employment action may be taken; however, they were not
reiterated in the current policies on harassment. For elected
officials, this adds a process to provide due process which
the law seems to require, but the City' s policies and
procedures currently lack. In addition, it provides some
protection for the City against tort claims for defamation
because an independent fact finder (who may be one who is
agreed to by both sides ) makes the determination, and helps to
insulate the City against claims of malice.
4 . A due process hearing for elected officials before an
administrative law judge or a mutually acceptable independent
hearing officer prior to any adverse action being taken.
5 . Personnel records are by law required to be kept
confidential . Harassment investigations are "personnel
records" under the law, both as they relate to the complainant
and the accused. Therefore, the proposed policy notifies
employees that harassment/sexual investigations are to be kept
confidential .
Everything else in the proposed policy is the same as that
contained in the City' s former policy, with occasional revisions of
language.
Attached hereto is a copy of the proposed policy which is on the
agenda, annotated with references to the current policies . Also
attached are copies of Resolution No. 81-641, the Policy Statement
on Sexual Discrimination and Harassment, adopted pursuant to
TO: MAYOR and COMMON COUNCIL
DATE: February 6, 1995
RE: Harassment/Sexual Harassment Policy
PAGE: 3
Resolution No. 81-641, Resolution No. 91-330 , and the Policy on
Harassment/Sexual Harassment adopted pursuant to Resolution No. 91-
330 .
di %
CATRAN BOTH
Deputy City Attorney