Elizabeth Nelson's City Council Blog

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Directing an Independent Investigation of the Acting City Administrator

At our October 4th meeting, City Council discussed a serious issue involving high level City staff. I co-sponsored a late addition to our agenda, based on a formal written complaint which was sent to Council on Friday, with documentation sent to Council just hours before our meeting.


Much of the information on this issue is privileged and confidential, but quite a lot of material is already in the public sphere and known. Below is an explanation, referencing publicly available information and my own non-privileged communications.



BACKGROUND

For the last five weeks, Ann Arbor has been managed by a short-term Acting City Administrator, John Fournier. Mr Fournier has worked for the City since 2018, when the position of Assistant City Administrator was requested and created by former city administrator, Howard Lazarus. For nearly two years, Mr. Fournier also served as a temporary acting head of the City’s Human Resources department. Eight months ago, the City hired a qualified professional, Tom Guajardo, to lead the City’s Human Resources department. For more about Mr. Guajardo’s background (which includes 25 years of HR experience) see:

https://www.mlive.com/news/ann-arbor/2021/02/two-years-after-text-scandal-ann-arbor-finally-hires-new-hr-leader-for-city-hall.html


In about ten days, the City will welcome Milton Dohoney, Jr. as a long-term Interim City Administrator. We anticipate that Mr. Dohoney will manage our City for approximately one year. To learn more about Mr. Dohoney and the skills he will bring to our organization, see:

https://www.mlive.com/news/ann-arbor/2021/09/ann-arbor-votes-to-hire-first-black-city-administrator-in-over-40-years.html



WHAT HAPPENED

On Friday, October 1st, all of Council received an email from the head of the City’s Human Resources department (Guajardo) alleging that the Acting City Administrator (Fournier) had subjected him to blatant discrimination, retaliation, harassment, a hostile work environment, and illegal directives. All of Council received another email on Monday afternoon (Oct 4th), with over forty pages of documentation. In response to these emails, I cosponsored a resolution (DC-5) asking for an immediate independent investigation into the allegations, and directing that the Acting City Administrator be put on paid administrative leave for the duration of the investigation.



TIMELINE

Friday, Oct 1st 2:17 PM

The head of the City’s Human Resources department emailed every member of Council with “a formal complaint of harassment and retaliation.” Parts of that complaint were published in MLive:

https://www.mlive.com/news/ann-arbor/2021/10/ann-arbor-hr-director-files-formal-complaint-against-acting-city-administrator.html


As quoted in the article:

I am writing to you today to make a formal complaint of harassment and retaliation against Mr. John Fournier, since employees do not have a formal system to lodge complaints against the top leadership position of the city
Mr. Fournier’s unchecked and continued inappropriate behavior is now in the arena of a hostile work environment and this is causing me a great deal of stress and angst
I have warned him on several occasions that I would eventually bring my complaints to you and the city council if he continued his blatant discrimination against me
Today after further retaliation of me not following his illegal directives, he continued attacks against me,” Guajardo wrote. “I have put Mr. Fournier on official notice that his behavior is inappropriate and unacceptable and asked him to cease and desist.

Friday, Oct 1st 3:07 PM

City Attorney sends privileged and confidential communication to all of Council.


Saturday Oct 2nd 7:29 AM

I emailed the City Attorney, copying two members of the City Administrative committee (CM Griswold and CM Ramlawi), expressing concerns. I asked for steps forward in authorizing an independent investigation. From my email:

Given that this complaint comes from the actual director of our Human Resources department – i.e. the person most likely to “understand better” the significance and meaning of the charges he makes – this is now clearly a matter of fact finding and independent assessment. I do not expect those tasks to be handled internally by our legal department.

Saturday Oct 2nd 4:52 PM

City Attorney sends privileged and confidential communication to all of Council.


Sunday Oct 3rd 1:07 PM

I emailed the City Attorney, copying one member of the Council Administrative committee (CM Griswold), asking for precedent regarding specific allegations. I requested information about precedent regarding similar complaints. From my email:

Some terms used by Mr. Guajardo in his complaint are “harassment” and “retaliation” and “blatant discrimination” and “illegal directives.” These terms seem to implicate several Human Resources policies, namely: 2.2 Employee Non-Discrimination 2.7 Whistleblower Protection 2.12 Anti-Harassment For HR policies 2.2 and 2.12, the City claims a zero tolerance policy. I would like a list of past examples of violation of each of these policies - 2.2, 2.7, 2.12 - and summary of the discipline response to each (personal identifiers removed, of course). I am most curious to know how formal complaints (such as Mr. Guajardo’s) did or did not result in suspension or administrative leave. I recall at least one recent example of a formal complaint that resulted in immediate administrative leave, prior to any investigation.

Monday Oct 4th (unspecified time in the morning)

As reported by City Attorney Postema at the Council meeting later the same day:

An outside investigator has been contacted immediately - first thing this morning - even without the formal written complaint that filed at four o’clock with the details, but just based on the initial complaint.

Note: the formal written complaint was, in fact, presented on Friday, Oct 1st, at 2:17 PM (see above) The materials provided on Monday at four o’clock merely added supporting detail to (and evidence for) the allegations.


Monday Oct 4th 3:55 PM

All of Council received a second email from the head of the City’s Human Resources department, with over forty pages of evidence attached.


Monday Oct 4th 6:50 PM

Resolution DC-5 was added to the Council Agenda for the 7PM meeting.

http://a2gov.legistar.com/LegislationDetail.aspx?ID=5158843&GUID=5F38516C-1164-43C1-A8B2-77E82B21D1F3


As originally written:


RESOLVED, That the City Council directs the City Attorney promptly to make all necessary arrangements to employ an outside, independent investigator to investigate the allegations asserted by the City’s Director of Human Resources against the Acting City Administrator;


RESOLVED, That the City Council directs the City Attorney to have the independent investigator provide a report to Council addressing the allegations made by the HR Director; and


RESOLVED, That the City Council Immediately places the Acting City Administrator on paid administrative leave until such time that the Council receives and acts upon the independent investigation.



Monday Oct 4th 7:00 PM

City Council meeting begins


Monday Oct 4th 8:30 PM - 11:30 PM

City Council meets in closed session regarding DC-5.


Monday Oct 4th 11:30 PM - 12:40 AM

City Council debates, amends, and approves DC-5.



PAST POLICY AND PRACTICE

In public discussion of DC-5, Council Member Radina said:

Placing the acting City administrator on paid leave during an investigation would be completely inconsistent with past policy and practice. Neither Mr. Lazarus nor Mr. Crawford were placed on Administrative leave during the duration of investigations of which they were the subject. However, we have the ability, the power to change that decision should any evidence arise of interference of an investigation. I absolutely believe that that would be appropriate at that time.

This talking point was repeated by several members of Council who insisted that these two recent situations - both involving a City Administrator - were relevant and instructive of “past practice.”


The two prior situations are not, in fact, useful comparisons because the allegations against Mr. Fournier are wholly unprecedented. Regarding Lazarus and Crawford, Council did not receive a formal written complaint alleging ongoing (and anticipated) retaliation, harassment, hostile work environment, and illegal directives. The presentation of the current allegations, directly to Council (with over forty pages of supporting documentation) is also unprecedented. The only commonality between Lazarus, Crawford, and Fournier is that all three held the same job. By the majority of Council’s logic, the City would never intervene to protect a complainant unless there is ‘precedent’ of someone else in the same job prompting similar complaints that required it.


Past practice is not determined by comparing people who happen to hold the same job. The appropriate point of comparison: similar allegations and circumstances.


Our City organization does (and did) impose an administrative leave in the interests of protecting complainants during an investigation. At least one member of the City’s executive team was recently subject to immediate administrative leave during an investigation and well before allegations were proven (or even revealed): in 2020, an allegation was made against our police chief, who happens to be African American. Like the current Acting City Administrator, he was accused of causing a hostile work environment.


In that case, then City Administrator (Mr. Lazarus) and then temporary head of our Human Resources department (Mr. Fournier) responded to the complaint and acted quickly to remove our police chief from the workplace. The police chief was placed on administrative leave with such haste that he was not permitted to retrieve his own house keys from his office. He was not notified of the accusations against him until nearly two weeks after he was placed on leave. Ultimately, investigation of those allegations did not result in any suspension or disciplinary action. After investigation, it was explained as a misunderstanding.


For more about that incident, see the MLive story (2/28/20):

https://www.mlive.com/news/ann-arbor/2020/02/ann-arbor-police-chief-to-return-to-work-with-conditions-and-lingering-disagreements.html


PROTECTING A COMPLAINANT

A minority of Council - myself and Council Members Griswold, Hayner, and Ramlawi - argued in support of a paid administrative leave for Mr. Fournier in order to protect the complainant and others. Council Member Ramlawi explained in discussion:

This complaint that was filed and given to Council to act on identifies people in the organization other than the author of the complaint. So while we are trying to protect folks in the organization and the complainant - the author of the complaint - [this] is further reaching, broader than one individual. I believe that in order to conduct a proper investigation, we should follow the norms and practices used in these instances that are suggested by professionals.

Due to strong resistance from a majority of Council, the final resolved clause of DC-5 - including “paid administrative leave until such time that the Council receives and acts upon the independent investigation” - was immediately amended. Council Member Griswold proposed compromise language that described “paid administrative leave until such time as that the Council receives notice that safeguards are in place for all parties, as early as October 6.”


Council Member Griswold’s compromise was rejected by a majority of Council. In response to a formal written complaint about ongoing (and anticipated) retaliation, harassment, hostile work environment, and illegal directives, a majority of Council rejected the idea of even two days of paid administrative leave. Instead, a majority of Council approved language that delegated authority to the City Attorney’s office:


RESOLVED, That the City Council directs the City Attorney’s Office to facilitate policies and procedures to ensure the integrity of the investigation and prevent any harm to the complainant, including policies and procedures regarding communication protocols between all parties, and subject to review and modification by outside counsel and Council Administration Committee. (Emphasis added)


In discussion at our meeting, Council Member Griswold explained:

This is very awkward and uncomfortable, but the allegation that I’m going on right now is the language “since the City Attorney cannot be trusted to follow guidelines for protecting whistleblowers.” So this allegation is about the City Attorney’s office.

Council Member Ramlawi explained:

The complainant has made it quite clear that he first tried to take this process through the attorney’s office, found it insufficient, and raised the alarm, raised the concern to the members of this body to take action.

The original version of DC-5 was a direct Council intervention, independent of the City attorney’s office, consistent with our City Charter and as requested by the complainant. At the Council table, DC-5 was amended to accomplish the opposite: Council specifically delegated the task of intervention and protection, to be managed by the City Attorney’s office.



COUNCIL VS. CITY ATTORNEY RESPONSIBILITY

After the terms of paid administrative leave were wholly removed from DC-5 (delegating responsibility to the City Attorney’s office), Council Member Eyer asserted that “This resolution wasn’t even necessary” because an independent investigation was already under way. At least two other Council Members (Disch and Radina) repeated this claim that an investigation was already happening. Mr. Postema appropriately offered clarification:

That outside investigation has not started because they have to clear conflicts in a sense but there’s a protocol and the materials would have to be sent and I would have to engage them, so it would be incorrect to say that it has started yet.

The idea that the resolution “wasn’t even necessary” - that Council had no responsibility to act, because the City Attorney’s office was handling it - is a gross misunderstanding of our organizational structure as described in the City Charter. Our City Administrator holds one of only two positions that are accountable to Council (the other position is that of the City Attorney). Only Council can direct the performance of the City Administrator’s job. City Council has direct authority over the employment of both the City Administrator and the City Attorney. The City Attorney does not have authority over the City Administrator or vice versa. Council is the only authority over the City Administrator.


Council misunderstanding (and abdication) of responsibility is especially alarming in a case like this, where a complainant alleges specific harm and requests protection. All of Council received the same formal written complaint outlining allegations. All of Council received the same update (with over forty pages of documentation) a few hours before our meeting on Monday night.


Council Member Ramlawi explained in our meeting:

We had a person of color - a credible person of color who is in a senior position in our organization - plead with us to take action, not on one occasion, but twice, and both times after they had exhausted discussion with the Attorney’s office.

CONCLUSION

At this week’s Council meeting, a majority of Council ignored relevant precedent - City response to similar allegations against a high level African American administrator - and invented a new theory of “precedent”: how previous (white) City Administrators were treated under entirely different circumstances. The details of a complaint and the specific concerns of the complainant were ignored by a majority of Council, in order to keep matters under the control of the City Attorney’s office. These choices reveal a lot.


Council’s approach to this situation is ironic, considering both Mr. Guajardo's professional qualifications and his position in the context of our organization. Mr. Guajardo directly adds to the diversity of our City’s executive team and he also brings significant work credentials on diversity, equity, and inclusion (DEI) matters. Mr. Guajardo’s expert perspective would appropriately guide DEI policy across the whole of our organization. Council’s dismissive non-response to Mr. Guajardo’s formal complaint is an insult to him both personally and professionally.


If Council was truly committed to the concept of diversity, equity, and inclusion, I would expect every one of us to show more interest in concerns that are expressed by the professional who is qualified to educate us on the topic. In a political climate full of righteous posturing, I would expect Council Members to remember their own rhetoric: listen to people of color. The message sent by a majority of Council is clear: principles of diversity, equity and inclusion will be defined for specific political purposes. When anyone (even a person of color) offers an expert perspective that does not support a political agenda, a majority of Council will not listen.