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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