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Investigation Report

Client: Association of Washington Cities Employer: City of La Center Complainant: Several Subject: Several Investigator: Jim Webber Date of Report: April 3, 2014

Introduction I am deviating from my usual practice and beginning this Report with some personal observations. I do

so because this investigation was unusual in terms of scope and degree of local interest by both

employees and citizens. City employees have a vested interest in this Report and many have expressed

various degrees of hope, anxiety and confidence about my efforts. I anticipate that many residents of

the City of La Center, whether or not the City employs them, are affected by City operations and will

therefore also be interested in my findings.

Many people involved with and interested in the matters described in this report will be disappointed or

perhaps angry because of my conclusions; other people may be pleased or relieved. The conclusions are

mine and mine alone. No representative of the City and no other person encouraged me or pressured

me to reach any particular findings. No person or entity exerted control over my process or my analysis.

I had no prior contacts with the City of La Center or its employees1, have no vested interest in the

outcome of this investigation and consider myself to be completely independent.

When I was engaged to conduct this investigation and throughout the interview process, many people

referred to a document that they called “the Nolan Report”. On October 15, 2013, the Columbian (a

regional newspaper) ran an article titled “Report Alleges City of La Center A Hostile Workplace”. In

addition to the title, the article’s very first sentence calls it “a recently leaked report” and proceeds to

identify the document repeatedly as a “report” by the former interim police chief. The tenor of these

references could easily cause readers to mistakenly believe there had been some sort of official findings

by the interim police chief. Several follow-up newspaper articles continued to refer to a “report”.

Another local newspaper, the Reflector, also made repeated references to “the Nolan report”. On

October 15, 2013, the Reflector reported that La Center City Council member Greg Thornton had

expressed concerns about Ms. Nolan’s “findings”.

While the letter Ms. Nolan wrote does use the word “report” from time to time, the plain context of the

document shows beyond any doubt that it was not an attempt by Ms. Nolan to identify corroborated

1 Some City employees told me that they had attended training sessions or conference presentations that I have provided for other organizations. I train hundreds – perhaps thousands -- of people each year and had no recollection of meeting anyone from La Center who stated they remembered me from training.

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conclusions of fact. Ms. Nolan clearly states that “concerns” were brought to her attention. For

example, she states on page one of the document:

I believe that it is important to bring forward concerns that appear to have merit or that expose

the City to risk. As an Interim Director I would not be fulfilling my responsibilities to the City if I

did not document these concerns formally so that you can consider them, investigate

thoroughly and determine whether some mitigating action should be taken.

Ms. Nolan would not have urged for there to be an investigation if she believed the concerns had

already been investigated. In addition, during her interview with me Ms. Nolan made it clear that she

had not “investigated” the many concerns identified in her letter. She stated that she listened to what

people wanted to tell her, but she did not solicit information from anyone (such as witnesses with

information that might contradict what Ms. Nolan was hearing) and did not attempt to question the

individuals who approached her.

Unfortunately, when employees and citizens read the news articles about Ms. Nolan’s letter, a

misperception arose that Ms. Nolan as interim police chief had thoroughly investigated the summarized

concerns. This misperception stemmed from the multiple references by journalists and Ms. Nolan

herself to a “report” but even more so due to the manner in which Ms. Nolan drafted her letter. I can

understand how someone reading it could believe that the letter sets out findings of fact as opposed to

mere assertions, allegations and unsubstantiated rumors. For example, Ms. Nolan states on page 2 of

her letter that she is submitting it “in hopes that substantive action will be taken to restore health to the

organization”. Ms. Nolan’s declaration that they City needs to have its health “restored” is tantamount

to saying that the concerns identified in her letter are factually true. She clearly appears to adopt a

position in her letter that certain City managers have damaged the organization and that substantive

action is required2.

Publication of Ms. Nolan’s letter in local newspapers was particularly unfortunate in that Ms. Nolan

chose not to obtain any responses to the allegations from people who were targeted with criticism or

accusations3. Several individuals were cast under a cloud of suspicion based on information contained in

Ms. Nolan’s letter and much of it could have been prevented with minimal effort. The letter was drafted

in such a way (including personal recommendations and citations to various authorities regarding

management and legal standards) that many of the speculative assertions could easily appear to readers

as verified facts. I empathize with individual employees who were forced to explain to neighbors and

friends about situations behind events described in the letter after they were mentioned but not given

an opportunity to respond before the letter went public.

2 Ms. Nolan’s statements to me during my interview with her confirmed that my perception of her personal views (based only on the letter) were accurate. For example, she freely described Mr. Sarvis and Ms. Levis as “volatile” and Ms. Levis as “incompetent”. As will be evident by the body of this report, I do not conclude that either individual is volatile and I also conclude Ms. Levis is competent at her job. 3 Ms. Nolan insisted that she never investigated and that she only reported what she heard from employees, explaining that is why she did not seek information that would corroborate (or dismiss) assertions that she was hearing.

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To avoid continuing the confusion and misperception, I will not refer to Ms. Nolan’s letter as a “report”

and I expressly reject the proposition that it contains any factual “findings” or factual conclusions. At all

times in the remaining sections of this Report, I will refer to Ms. Nolan’s document as “the Nolan

Letter”.

On a different topic, another reason this investigation was unusual was that I received three anonymous

letters during the course of my work. I could not tell if the letters came from the same individual or

three different ones. All were mailed to my business address. None of the letters contained identifying

information regarding the sender(s) and all contained general opinions of distrust or personal belief that

inappropriate or even illegal acts had taken place. None of the letters contained specific allegations of

verifiable fact or even a hint of what specific act might have taken place. Each letter said its writer was

staying anonymous for fear of retaliation. During my investigation, however, I uncovered no evidence of

facts that would cause a reasonable person to be fearful of revealing their identity to an independent

investigator. Anonymous letters in general have no value to me. Nonetheless, I read each of the ones

sent to me in this matter to determine whether or not specific facts had been alleged that were related

to my investigation. None were alleged. I discarded each letter and am proceeding as if none had been

sent.

Scope of Investigation The Association of Washington Cities engaged me to conduct an independent investigation of the

assertions and concerns contained in the Nolan Letter. No representative of the City played any role in

my investigation other than to serve as witnesses or to assist with logistics when I conducted interviews

at the La Center Police Department and other municipal venues.

During the course of my investigation, I conducted interviews with the following individuals:

Shannon Beer

Bill Birdwell

Dani Bowerman

Janice Fowler

Lydia Fowler

Naomi Hansen

Jim Irish

Sue Lawrence

Jerry Lester

Suzanne Levis

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Erin Nolan

Jenny Olive

Chris Olson

Alice Peters

Dave Pettit

Jeff Sarvis

Paul Vernon

Cathy Winston

Jeromy Wirkus

The Nolan Letter attributes statements and assertions to Alice Peters, Dave Pettit and Cathy Winston.

All three of these individuals told me they read the Nolan Letter after it was published by the local

newspapers and that Ms. Nolan had accurately recorded what they told her.

Complaint This investigation was not based on a written complaint. I focused on the concerns and assertions set

forth in Ms. Nolan’s May 24, 2013, letter (the “Nolan Letter”) to Dan Kearns (the City of La Center’s Legal

Counsel). (The version of Ms. Nolan’s letter that was published in local newspapers is an early version of

the document. It was dated May 10, 2013 and addressed to Derek Bryan (Risk Manager – AWC). The

final version is dated May 24th and addressed to Mr. Kearns. Although I did not do a line-by-line

analysis, it appears the only difference between the two versions is the date and addressee.)

The Nolan Letter refers to events – many unrelated other than that they involve City employees – that

took place over a broad time period and involved many different people. Since many people will use

the Nolan Letter as a jumping off point for reviewing these investigation results, I will address the issues

roughly in the same order as they appear in the Nolan Letter. I do not mean to suggest that any issue is

more important than another based on this order.

Based on the Nolan Letter, I addressed the following questions during my investigation. My conclusions

and analysis follow in the same order under the heading “Questions and Conclusions”.

1. Does the City of La Center (the “City”) lack objective reporting mechanisms for internal

complaints related to discrimination and harassment?

2. Does the personal relationship between the Public Works Director and Finance Director violate

City policy or otherwise create a conflict of interest related to employees who may have a

complaint or issue regarding the Director of Public Works?

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3. Do the Public Works Director and Finance Director “control” the Mayor so that complaints to

him are ineffective?

4. Did the Public Works Director refuse to address a complaint by Dani Bowerman regarding an

alleged gender-based comment that Ms. Bowerman considered to be offensive?

5. Did the Public Works Director deny without addressing a complaint that one of his subordinates

refused to accept work requests from Ms. Bowerman and were Public Works employees told

not to accept requests from Ms. Bowerman or Ms. Nolan?

6. Does the Finance Director, who also oversees Human Resources, lack expertise in Human

resource issues?

7. Is the City’s collective bargaining process hampered due to a “lack of coordinated and

cooperative problem-solving” between the Union and City Directors”?

8. Does the City fail to respond in a timely manner to public disclosure requests?

9. Is there an “overt lack of trust” in the City’s hiring practices?

10. Does a City employee oversee the work product and payroll of her daughter, who is also a City

employee?

11. Has the City failed to comply with its own policies that require performance evaluations and

training?

12. Did the Public Works Director pressure employees to complete a citizen survey in order to

ensure project funding?

13. Does an individual named “Paul” work as an accountant at City Hall but lack “actual

credentials”? (Although this section of the Nolan Letter is ambiguous, it could be perceived to

imply that “Paul” is allowed to work as an accountant even though he is unqualified because he

provides pet care services for Ms. Levis).

14. Does the Public Works Director micromanage a specific employee to the point of putting the

employee “on edge”?

15. When the Finance Director works from home, is she unresponsive to telephone and email

messages?

16. Will employees be fired if they speak to the Council or Mayor?

17. Does the Public Works Director commonly tell employees “there are twenty other people who

want your job”?

18. Does the Public Works Department flirt with “everyone”?

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19. Does the Finance Director intentionally delay processing requests that the City buy back comp

time from police officers?

20. Does the Finance Director work under the influence of alcohol or drugs?

21. Did the Finance Director pressure a former employee to retire when the employee needed

FMLA leave to care for a sick spouse?

22. Did the Finance Director threaten to have Alice Peters fired if Ms. Peters returned to work at

City Hall?

23. Were certain City employees drunk at Centennial Days in 2009 or other City events?

24. Does the Public Works Director make inappropriate comments of a sexual nature about

customers at a local hair salon?

25. Did the Public Works Director refer to Alice Peters as a “short timer”?

26. Does the City give preferential treatment to job candidates or vendors because they are friends

with the Public Works Director or Finance Director?

27. Did the Finance Director lie about attending a conference?

28. Was Alice Peters harassed at work due to the “Big Deck” video link?

29. Does the Finance Director yell and scream at employees?

30. Did the Public Works Director use Alice Peters’ computer to send email messages to the Finance

Director that were purportedly from Ms. Peters?

31. Did Alice Peters fear retaliation from the Finance Director, Public Works Director or both once

the information in the Nolan Letter was disclosed?

32. Was a recent budget-cut discussion at the City an attempt to take adverse action against Alice

Peters?

33. Did the Public Works Director make sexually suggestive comments to Alice Peters after she lost

weight?

Although they were mentioned in the Nolan Letter, I will not address the issues listed below in my

Report:

1. As an example of the City’s alleged lack of “objective reporting mechanisms”, the Nolan Letter

states that City employees “are aware of the employment history” of the Public Works Director

via public internet sites and she then included a link to one such site. Ms. Nolan refers to both

alleged and sustained misconduct. I do not address the past history in my Report for several

reasons. First, it appears to have no relevance to whether or not the City has objective

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reporting mechanisms. Second, it pertains solely to events that took place before the Director

was a City of La Center employee. Third, this public information was readily available to the La

Center City Council, City residents and others interested in City affairs well before the Nolan

Letter went public. I can think of no reason for including the reference to this information other

than to bias readers against the Director by attempting to create a perception that he is likely to

engage in misconduct. Although I did not consider the history, I do believe its inclusion is

evidence of strong bias by Ms. Nolan against the Finance Director.

2. Ms. Nolan described instances when Ms. Levis made representations and/or vented about the

opinions of or comments by City Council members regarding Ms. Nolan’s interim appointment

and the recruitment of a permanent police chief. (Nolan Letter, page 14). Nothing that Ms.

Nolan mentioned creates the need for an investigation. I take notice from having worked with

public employers for several years that such conversations and venting about political processes

and elected officials are not unusual.

3. The Nolan Letter criticizes Mayor Irish for the degree he involved (or did not involve) police

personnel in the selection of a new police chief. (Nolan Letter, pg. 15). This section of the Nolan

Letter sets out a difference in opinion between Ms. Nolan and the Mayor regarding how a police

chief would be selected. I did not investigate whether or not Mayor Irish involved police officers

in the selection process because even if what Ms. Nolan stated was true, it amounts to nothing

more than a difference of opinion rather than actionable conduct by the Mayor. None of the

witnesses (excluding Ms. Nolan) had any criticisms about the Mayor’s role in the recruitment

process and no one has alleged that the manner in which the current chief was selected was

defective.

4. I did not investigate whether of not the Finance Director told Ms. Nolan that she would not

support Ms. Nolan as a candidate for the permanent police chief position. Again, Ms. Nolan

appears to be criticizing the Finance Director’s opinion as opposed to stating any sort of alleged

conduct that would require further review.

5. I did not make conclusions about the allegations that an employee parked “blocks away” before

meeting after hours with Ms. Nolan because he was afraid he would be “in trouble” if the Public

Works Director found out about the meeting. I found no evidence to suggest that any employee

was treated adversely because of meeting with Ms. Nolan or anyone else. Based on my

investigative experience, I know that many employees do not want anyone to know that they

have complained or raised concerns for fear of retaliation and the majority of these employees

are expressing honest, sincere feelings. Most (but not all) of these fears turn out to be baseless,

although they are understandable. I also know from professional experience that some

employees will go to great lengths to keep managers from knowing they have complained.

Based on my interview with him, I believe the employee referenced by Ms. Nolan as being so

afraid was sincerely afraid. However, I found no evidence to suggest that the Public Works

Director or anyone else monitored the employee or anyone else or that the employee would

have been “in trouble” for meeting with Ms. Nolan. There was also no evidence that the

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employee was “in trouble” once the Nolan Letter was published and the employee’s name was

made public. In fact, the employee in question stated during his interview that the environment

had improved since the letter was published.

6. I did not investigate the Nolan Letter’s broad assertion without any specifics whatsoever that

the employee turnover rate at the City “seems remarkably high” and the Letter’s speculation

about the possible causes of the turnover. Having worked in the field of Human Resources since

1979, I know there are many explanations for employee turnover that depend on the specific

situations of each organization. None of the witnesses who I interviewed expressed the opinion

that overall turnover is remarkably high.

7. Other than interviewing Cathy Winston, I did not investigate the Nolan Letter’s assertion (citing

Ms. Winston) that the Public Works Director orchestrated the departure of former Police Chief

Hopkin. The Nolan Letter strongly implies that the assertion is nothing more than Ms. Winston’s

speculation (Ms. Winston is quoted as saying “it would not surprise her” if this happened).

During her interview with me, Ms. Winston provided no facts to support the assertion as

anything other than speculation. Including Ms. Winston’s broad assertion at all in the Nolan

Letter is yet more evidence as to why that Letter is not a “report” and why I believe the Letter is

biased against both the Public Works Director.

8. The Nolan Letter makes several critical comments that an individual was hired for a clerical

position who once worked as a bartender. Without specifics, the Letter seems to imply that

hiring a former bartender is a bad hiring practice. I did not verify anyone’s past experience in

this regard and do not believe it is relevant. If anything, it appears to express bias against the

former bartender by the individuals being quoted by Ms. Nolan or a bias by Ms. Nolan against

bartenders. Whatever the cause, whether or not someone once worked as a bartender is not an

indication of wrongdoing and is not at all relevant to City operations.

9. I did not investigate assertions that the City is inconsistent with respect to documenting and

reporting health and safety matters. The City is covered by many state and federal laws

regarding employee safety. Government agencies conduct audits and employees are free to

submit anonymous complaints to the agencies regarding safety concerns. None of the

employees who I interviewed said that they had ever felt at physical risk due to workplace

hazards and none aid they would refrain from reporting such concerns either to City

management or as an anonymous complaint to a government agency.

Question No. 1: Does the City of La Center (the “City”) lack objective reporting mechanisms for internal complaints

related to discrimination and harassment?

Conclusion:

The City’s reporting mechanism is adequate.

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The City of La Center Personnel Policy and Employee Manual, section 2.7, sets forth the City’s

mechanism for reporting harassment and discrimination complaints or concerns. The policy states:

2.7 Harassment and Discrimination Complaint Procedure

The following procedure outlines the steps to follow if you believe you have experienced

harassment or discrimination on the job. All employees are encouraged to report any incident

of discrimination, harassment, or retaliation that they observe occurring.

If at any time you believe you are being subject to discrimination or unlawful harassment, and

are comfortable talking with the harasser engaged in the offensive behavior, you should identify

the offensive behavior to the harasser and request that it stop. In the event such informal direct

communication is either ineffective, difficult, or something you are uncomfortable with, you

should discuss your concerns immediately with your supervisor, the City Clerk4, Mayor or the

City Attorney. Although not required by law, the employee is encouraged to put in writing a

description of the behavior of the harasser, including dates and times when it occurred. If your

concern is not handled to your satisfaction, you should discuss your concern with the human

resources manager, Mayor or the City Attorney.

Employees are strongly urged to report all instances of perceived harassment or discrimination

as soon as possible to one of the individuals listed above. It is the City’s goal to provide its

employees with a professional and productive working environment. However, the City cannot

address employees’ concerns if they are not brought forward.

No employee will suffer retaliation for reporting such a concern or participating in the

investigation of a complaint made under this policy. Any employee concerned about potential

retaliation should report those concerns to one of the individuals listed above so that corrective

action can be taken.

(Emphasis in original).

The Nolan Letter asserts that this policy is inadequate because:

1. The Finance Director and the Public Works Director are intimate partners who live together, so

employees of the Public Works Director are afraid to complain about him to the Finance

Director.

2. The City Attorney and the Mayor are not adequate reporting alternates to the Finance Director

because (a) the City Attorney is off site and not known to most employees, and (b) the Mayor is

either unresponsive or controlled by the two Directors.

Based on my experience as an employment attorney and later as an independent

consultant/investigator, I can conclude without reservation that the City’s reporting mechanism is a

4 All resources agreed that City Clerk in this context is the same as Finance Director Levins.

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standard policy in both the private and public sector in that it provides multiple avenues for reporting

harassment or discrimination concerns. To the extent the Nolan Letter suggests that the policy itself is

inadequate, the Letter is incorrect as a matter of commonly accepted human resources principles and

employment law. Whether or not the City’s policy is adequate as applied is another question

altogether. It is possible for an employer to have a policy that is acceptable on its face but which is not

acceptable in practice.

In the present case, the Nolan Letter cites the position that employees who have complaints or concerns

about the Public Works Director will decline to complain about him to the Finance Director because the

two directors live together and are in a relationship. I empathize with the point and can certainly

understand that some employees could be hesitant to or even refrain from submitting a complaint or

concern for that reason. In fact, several witnesses reported to me that they would think twice about

submitting a complaint to the Finance Director about the Public Works Director. On the other hand,

many of the Public Work Director’s current employees stated they would feel free to reporting problems

about their boss to the Finance Director if they had problems. If the City’s policy stated that all

complaints had to be submitted to the Finance Director (or required any employee to report complaints

to just one particular person), I would agree that the policy’s reporting mechanism is inadequate and is

also fodder for a harassment lawsuit. However, the policy clearly does not limit employees to reporting

complaints only to the Finance Director.

Instead, the policy provides that complaints can also be submitted to the Mayor or City Attorney. With

respect to the Mayor, one employee said he would not feel comfortable complaining to him because he

believes the Finance Director and Public Works Director “control” him. Nolan Letter, pg. 4. Another

employee said she would not feel comfortable talking to the Mayor about complaints because “when

she’d contacted him in the past about very minor things5, the information went directly to Suzanne Levis

or Jeff Sarvis.” Nolan Letter, pg. 26. No other employees expressed reservations during my investigation

about utilizing the Mayor under the Complaint Procedure. The fact that two employees are hesitant to

complain to the Mayor does not mean the policy is inadequate, particularly since it includes additional

people to whom reports can be submitted.

Although some employees expressed uneasiness or mistrust about attorneys in general, no witness

expressed any reasons why they would not feel comfortable submitting concerns to the City Attorney.

The Nolan Letter editorializes that employees are unlikely to contact the City Attorney because they do

not have a working relationship with that person and because the City Attorney does not work in the

City more than a few days or hours per month. None of the employees who I interviewed expressed

similar concerns. With many communications options, it would be a simple matter for employees to

contact the City Attorney. I conclude that including the City Attorney as an alternate resource for

submitting complaints defuses any chilling effect that employees might feel because of the relationship

5 I recognize that forwarding information to the Directors about “minor things” does not mean the Mayor would also disclose “major things”. I would expect the Mayor to be expedient and go directly to the Directors about “minor” things if he believed it to be the best course of action. When I interviewed the Mayor, he exhibited appropriate awareness that conflict of interest factors would make it impossible for the Finance Director to participate in an investigation of the Public Works Director.

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between the Public Works Director and Finance Director. It also remedies any hesitancy employees

might feel about submitting concerns to the Mayor.

Although the Nolan Letter suggests multiple reasons why some employees might not feel comfortable

submitting complaints to certain people, it does not provide any concrete details to show that any of the

individuals who are identified as recipients of complaints under the City’s policy have ever failed to or

would fail to properly handle a harassment or discrimination complaint. It is highly unfair to condemn

the reporting mechanism based on what the Directors and Mayor “might” do and how some employees

“might” feel.

Question No. 2: Does the personal relationship between the Public Works Director and Finance Director violate City

policy or otherwise create a conflict of interest related to employees who may have a complaint or issue

regarding the Director of Public Works?

Conclusion:

The relationship between the two Directors does not violate City policy. To the extent the

relationship results in a conflict of interest regarding complaints against the Pubic Works Director, any

such conflicts are remedied by the multiple avenues available for submitting complaints.

The applicable City policy (as stated in the City of La Center’s Personnel Policy and Employee Manual)

states:

3.3 Employment of Family Members

Individuals who are related by blood, marriage, or reside in the same household as a

current City employee, are eligible for employment at La Center, provided no direct

reporting or supervisor to subordinate relationship exists. That is, no employee is

permitted to work within "the chain of command" when one relative's work

responsibilities, salary, hours, career progress, discipline, benefits or other terms and

conditions of employment could be influenced by the other relative.

Related employees will have no influence over the wages, hours,

benefits, career progress, performance evaluations and other terms

and conditions of employment affecting the other related

employee.

Related employees will have no supervisory or audit functions over

one another’s work product.

Change in Circumstances: If two employees marry, become related or begin sharing

living quarters with one another and, in the City’s judgment, the potential problems

noted above exist or reasonably could exist, only one of the employees will be

permitted to remain employed with the City, unless reasonable accommodations, as

determined by the City, can be made to eliminate the potential problem. If no

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accommodation can be made, the decision as to which employee will remain with the

City must be made by the two employees within 30 calendar days of the date they

marry, become related, or begin sharing living quarters with each other. If no decision is

made during this time, the City reserves the right to terminate either employee.

The Mayor explained during his interview with me that Section 3.3 of the Manual was adopted after Ms.

Levis and Mr. Sarvis were already employed by the City as Finance and Public Works Directors and were

in a relationship.6 Mr. Sarvis stated that he had thought at the time that the provision was drafted in

such a way that he and Ms. Levis would not be in violation. The Mayor stated that it is his position that

the two Directors are not in violation of the policy because they are peers who are not in each other’s

chain of command and because they do not have influence over each other’s terms and conditions of

employment. (The Nolan Letter does not cite any facts that would indicate the two Directors ever

attempted to or were perceived to have attempted to exert influence over each other’s wages, hours,

benefits, career progress, performance evaluations or other terms and conditions of employment).

Section 3.3 provides a mechanism if, “in the City’s judgment”, the potential problems identified in the

policy “exist or reasonably could exist”. The Mayor stated he could take action if he believed it was

necessary under Section 3.3. Neither the Nolan Letter nor any of the witnesses who I interviewed

provided facts to indicate that Section 3.3 requires removal of one of the Directors or some

accommodation to eliminate potential conflict of interest problems. Due to the complete lack of facts

to support a finding of undue influence (other than the fact that the two individuals live together and

are a couple), I see no reason to question the Mayor’s assessment that the Directors are in compliance

with the policy. When and if a situation arises that would create a conflict of interest or the appearance

of one, the Mayor said he would implement the policy to remedy any such conflicts.

Question No. 3: Do the Public Works Director and Finance Director “control” the Mayor so that complaints to him are

ineffective?

Conclusion:

I do not believe that the Mayor is “controlled” or unduly influenced by either of the two Directors.

The only “evidence” uncovered during my investigation (or set forth in the Nolan Letter) is the personal

opinion of a few employees. Although several people expressed concerns that the Mayor might be

overly influenced or on a certain side, no one was able to cite any examples of times when the Mayor

was controlled (or appeared to be controlled) even though I specifically asked for examples. The Mayor

flatly rejects the contention that anyone controls him.

I dismiss this assertion because it is based on speculation as opposed to verifiable facts. In addition, I

found evidence indicating that the Mayor is not “controlled”. Both the Mayor and Ms. Levis told me

that they did not agree whether Ms. Nolan should be engaged as interim Police Chief. Ms. Levis had

concerns about Ms. Nolan’s history when she worked at other police departments while the Mayor

6 The policy was approved as Resolution 10-331 on June 9, 2010.

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strongly supported Ms. Nolan for the temporary position. As we know, the Mayor moved forward and

Ms. Nolan was hired despite Ms. Levis’s contrary opinion.

Question No. 4: Did the Public Works Director refuse to address a complaint by Dani Bowerman regarding an alleged

gender-based comment that Ms. Bowerman considered to be offensive?

Conclusion:

The Public Works Director addressed this complaint with Ms. Nolan.

The Nolan Letter states that a police department employee complained to Ms. Nolan, who was the

employee’s direct supervisor at the time, that the Mr. Sarvis made an offensive, gender-based comment

to the employee following a union meeting. According to the Nolan Letter (and according to Ms. Nolan

during her interview with me), Mr. Sarvis “adamantly denied the allegation and insisted he would never

say or do anything inappropriate”. Ms. Nolan also states that Mr. Sarvis refused to discuss the details

other than to deny saying anything offensive. She said that after Mr. Sarvis denied any involvement, she

took no other formal action about Ms. Bowerman’s complaint other than to include a summary of it in

the letter that resulted in this investigation.

The employee, Dani Bowerman, asserts that Mr. Sarvis made an offensive comment to her following a

union negotiation meeting in approximately November of 2012. She says Mr. Sarvis said, “Nice kitty”

and directed the comment at her. She said he did not make any gestures. According to Ms. Bowerman,

she became flustered after the comment and dropped her keys but did not want to bend over in front of

Mr. Sarvis. She said she did not know what Mr. Sarvis meant by the comment but wondered if he was

making a rude reference of some kind. When I asked Ms. Bowerman to describe Mr. Sarvis’s demeanor

when he made the comment, she replied that she couldn’t describe it but it made her feel “dirty”. She

said she had experienced no other such incidents with Mr. Sarvis. Ms. Bowerman confirmed that she

reported what happened to Ms. Nolan. She said that Ms. Nolan later told her that Mr. Sarvis denied

making the comment.

Mr. Sarvis told me during his interview that he recalls Ms. Nolan telling him that Ms. Bowerman had

complained to her about an alleged offensive comment and that the City Attorney, Dan Kearns, was also

present when she told him. Mr. Sarvis did not recall Ms. Nolan saying anything about a kitty or cat, but

remembered the City Attorney mentioning something about dropped keys. He said Ms. Nolan did not

say he supposedly made a rude comment about female anatomy and he denies making any such

comment. I told Mr. Sarvis that Ms. Bowerman reported that he had said, “Nice kitty.” Mr. Sarvis says

he did not say that. He does not remember Ms. Nolan telling him that detail and he also insisted that he

would not have discouraged her from providing such details. During his interview with me, Mr. Sarvis

said he had no idea that Ms. Nolan thought he was refusing to talk about the matter until the Nolan

Letter was published. He explained that since the City Attorney was present when they talked about the

issue that he thought the City Attorney would ensure that any necessary steps would be taken, but he is

not aware of any such steps. Mr. Sarvis thought the issue had been resolved until he read the Nolan

Letter.

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Based upon the Nolan Letter and the statements made to me by Ms. Nolan and Mr. Sarvis, I conclude

that Mr. Sarvis was willing to discuss specifics and did not do anything to deter Ms. Nolan from taking

additional steps. Ms. Nolan, as Ms. Bowerman’s acting supervisor, took no further action about the

complaint other than to summarize it in the Nolan Letter. Ms. Nolan made it very clear in her letter and

during her interview with me that she is well-versed in the requirements that apply to a supervisor

regarding harassment or discrimination complaints. I am convinced that if she believed at the time that

Ms. Bowerman’s complaint required additional review beyond speaking with the City Attorney and Mr.

Sarvis, she would have taken all necessary steps and that she knew what to do. The fact that she took

no further action is strong evidence to me that Ms. Nolan did not conclude at the time that Ms.

Bowerman’s complaint warranted further action because Ms. Nolan herself would have been in

violation of City policy if she did nothing under such circumstances.

Question No. 5(a) and 5(b): (a) Did the Public Works Director deny without addressing a complaint that one of his subordinates

refused to accept work requests from Ms. Bowerman, and (b) were Public Works employees told not to

accept requests from Ms. Bowerman due to gender?

Conclusion:

(a) The Public Works Director addressed this complaint.

(b) Public Works employees were not told to reject work requests from Ms. Bowerman due to gender

or for any other reason.

Part (a):

Beginning on January 17, 2013, Ms. Nolan and Mr. Sarvis exchanged a series of emails about an alleged

refusal by a Public Works employee to accept work requests from a female police department

employee. In an email dated January 30, 2013, with copies of the message to the Mayor and City

Attorney, Ms. Nolan described her concerns about the alleged refusal to accept work requests. She

ends her detailed message with these words:

Additionally, if Supervisor Wirkus did in fact make a statement to Sgt. Olsen that he

preferred not to receive communications from “her” referring to Exec. Asst. Bowerman,

that statement needs to be addressed immediately, as it certainly gives the impression

that Wirkus prefers communication from his male peers vs. a female employee in a

subordinate position.

Based upon our conversation I will consider this matter addressed and am forwarding

the complaint information for your supervisory file.

On February 5, 2013, Mr. Sarvis sent an email to Ms. Nolan, also with copies to the Mayor and City

Attorney. He wrote:

I would like to address your email regarding Public Works Supervisor Jeromy Wirkus. I

am concerned that; 1) you conclude that Supervisor Wirkus made a statement to Sgt.

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Olsen that would contradict the practice in this department and 2) your email concludes

that the discussion between Sgt. Wirkus and Supervisor Wirkus suggests there may be a

gender bias regarding Exec. Asst. Bowerman. As I stated during our 1-24-13 meeting,

there are two versions of the January 15th discussion between Supervisor Wirkus and

Sgt. Olsen.

Mr. Sarvis’s February 5th email to Ms. Nolan also states, “After my discussions with Supervisor Wirkus I

do not believe there is any bias regarding gender”7 and “With this response, I will consider the matter

regarding Public Works Supervisor Jeromy Wirkus closed.”

Ms. Nolan replied on February 6th: “I have not made any conclusions with regard to this matter, I related

to you what was reported to me, expressed my concerns and think it has been addressed.” She sent

copies of the message to the Mayor and City Attorney. The “subject” line for the email messages in this

thread states, “RE: Conclusion of Complaint.”

The Nolan Letter characterizes this incident as one of the sorts of conflict that is occurring in the

workplace and “going unresolved”. I can think of no reasonable basis for Ms. Nolan to cite this incident

as an example of conflicts “going unresolved” since her own email message states that she considers the

matter to have been addressed. It defies logic that Ms. Nolan would have specifically said to Mr. Sarvis

that she believes a matter was “addressed” and then cite is as evidence to the contrary in a letter that

she knew would most likely be scrutinized by the Mayor, City Attorney and possibly members of the

public.

The email exchange demonstrates beyond any doubt that Mr. Sarvis did not deny the complaint without

addressing it. He did, however, reach a conclusion after interviewing the employee who made the

comments that were under review.

Part (b):

The Nolan Letter asserts that a Public Works employee (Jeromy Wirkus) told a police sergeant (Chris

Olsen) that the Pubic Works Department would no longer accept work requests from police department

civilian employee Dani Bowerman. Ms. Nolan stated during her interview with me that she believed the

request was motivated by gender. Sgt. Olsen stated during his interview with me that Mr. Wirkus

informed him that the Public Works Department would not perform work for the Police Department

unless requests came from Sgt. Olsen and not from “her”. Sgt. Olsen told me he thought Public Works

might feel that Ms. Bowerman was of no consequence because she was female and in a “lower”, non-

uniformed job position. Sgt. Olsen said other than this communication regarding work requests, he had

not heard Mr. Wirkus say anything derogatory about women in general or Ms. Bowerman in particular.

Mr. Wirkus recalls the communication regarding work requests. He describes it as a “chain of

command” issue. He explained that as a Public Works supervisor, he needs to know what the crew

7 I interviewed Mr. Wirkus as part of my investigation. Based upon his description of these events to me, I believe Mr. Sarvis was reasonable when he concluded that Mr. Wirkus was not being influenced by gender. This issue is discussed in more detail under 5(b) of this part of my Report.

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members are doing and where they are each day. He claims he told Sgt. Olsen that if the Police

Department needed work done, they needed to contact either Mr. Wirkus or Mr. Sarvis and not the

individual crew members. He said the issue was not who from the Police Department could make a

request; the issue was who was to whom it should be directed. Mr. Wirkus denies saying requests

would not be accepted from Ms. Bowerman. Neither Sgt. Olsen nor Ms. Bowerman knew of any times

when the Public Works Department refused to accept a work request from anyone.

Based on the Nolan Letter and my interview with Ms. Nolan, she believes Mr. Wirkus’s comment was

gender-based because he said requests would not be accepted from “her.” Other than Mr. Wirkus’s use

of a pronoun, she cited no facts to support her idea or Sgt. Olsen’s speculation that Mr. Wirkus was

motivated by Ms. Bowerman’s gender.

Both Sgt. Olsen and Mr. Wirkus seemed credible when they described the communication regarding

work requests. However, their recollections differ as noted above. (Mr. Sarvis also noted the difference

between their recollections in his email to Ms. Nolan dated February 5, 2013). This leaves open the

strong possibility that what happened here was a miscommunication and both witnesses were providing

what they think is the truth when they spoke with me. After speaking with Mr. Sarvis and other Public

Works employees, I am convinced that the Public Works Department will accept work requests from

anyone at the Police Department but the requests need to be directed to the appropriate Public Works

representatives. My conclusion is supported by Mr. Sarvis’s email to Ms. Nolan and the fact there is no

evidence of a request being rejected.

Sgt. Olsen’s speculation about motive is insufficient to support a finding of gender-based comments.

Ms. Nolan’s conclusion that the comment was gender-based because Mr. Wirkus referred to Ms.

Bowerman as “her” is also unpersuasive (and would throw the use of pronouns at all into question).

Based on all of the factors discussed above, I conclude that the Public Works Department did not

declare that it would not accept requests based on anyone’s gender.

Question No. 6: Does the Finance Director, who also oversees Human Resources, lack expertise in Human Resources

issues?

Conclusion:

The Finance Director is not an expert in Human Resources, but possesses sufficient knowledge of

Human Resources to perform her job.

Ms. Levis was hired by the City as Clerk Treasurer in 2004; her title changed to Finance Director in 2006

due to an ordinance passed by the City Council. She has been responsible for Human Resources at the

City since the day she was hired.

Ms. Levis freely admits that she is not personally an expert when it comes to Human Resources. She

told me she has sufficient knowledge of such issues to handle routine matters and to know when expert

advice is needed. She also cited a number of resources at her disposal that she has utilized during her

tenure: guidance and consulting through the Association of Washington Cities (and its legal advisors) as

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well as advice from the City Attorney and employment attorneys. During her interview with me, I asked

Ms. Levis about routine personnel issues that could arise and was satisfied with her responses about

how she would deal with the issues. I believe she is well aware when she might be “in over her head”

and need more guidance. Based on her responses to my hypotheticals, I also believe she is well-versed

in most day-to-day employment law matters that might arise. In addition, she mentioned that she

completed Human Resources training through the State of Washington’s HELP Academy8 when she was

employed by the State Auditor’s Office.

Based on my experience working with public and private employers in Washington and across the

country, I know it is uncommon for employers the size of the City to have a manager or director who

handles only Human Resources and no other function. It would be an inefficient use of such a city’s

resources to hire a manager to only oversee Human Resources issues when such work at a management

level would be far less than a full-time job.

Question No. 7: Is the City’s collective bargaining process hampered due to a “lack of coordinated and cooperative

problem-solving” between the Union and City Directors”?

Conclusion:

The City Directors have not hampered the collective bargaining process.

The Nolan Letter states that the Finance Director and the Public Works Director have hampered

collective bargaining in many ways. It includes many of Ms. Nolan’s personal views about the collective

bargaining process and how it “should” proceed. Ms. Nolan asserts that the Directors are not well

informed about the legalities of collective bargaining, deal with bargaining in an emotional manner and

take the process personally.

In my opinion, the references in the Nolan Letter to the collective bargaining process and criticisms of

the Directors highlight a difference in bargaining philosophy between the parties but do not support the

proposition that the Directors “hampered” the process. The best arbiter of whether or not the Directors

bargained according to law is whether the union itself complained about their approach. The union

filed no unfair labor practice charges regarding the bargaining process and there is also no indication

that the union ever raised official objections to the manner in which the Directors conducted

themselves. If the union raised no formal objections to the way the Directors bargained, it is irrelevant

to me that Ms. Nolan has criticisms in terms of determining whether the Directors engaged in any kind

of misconduct.

There is no need to delve into whether Ms. Nolan’s approach is preferable to that of the Directors (or

vice versa). Based on my personal experiences with collective bargaining, I know for a fact that the style

advocated by Ms. Nolan in the Nolan Letter and the style used by the Directors (as described in the

Nolan Letter) are both used in the industry. I also note that different situations and different histories

8 I am familiar with the HELP Academy and am a former instructor with the program. A major goal of the program was to educate managers about human resources legal issues.

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between the bargaining parties will lead to different levels of cooperation and different levels of trust.

In short, it is a matter of discretion and reasonable people will have different opinions about how the

process should go forward.

It is undisputed that the Directors worked with an experience labor attorney during the collective

bargaining process. This representation remedied any lack of legal knowledge on the part of the

Directors or Ms. Nolan.

Question No. 8: Does the City fail to respond in a timely manner to public disclosure requests?

Conclusion:

There is no evidence that the City routinely fails to comply with the legal requirements of public

disclosure.

Based on a single incident, the Nolan Letter asserts that the City is at risk of incurring daily fines for

failure to properly respond to public disclosure requests. The Letter refers to an alleged request during

union negotiations for a copy of a contractual agreement between the City and an individual employee.

Ms. Nolan stated during her interview with me that the union made the request. She also said she was

aware of no claims by the union alleging the City failed to respond. Ms. Nolan did not inform the Mayor

during her tenure (and when the event was taking place) that there may be a risk of fines. She knew of

no other instances when the City might have faced fines for failing to disclose public documents.

While the City may have failed to respond to the union’s request in this instance, it appears that no

fines9 resulted because the union did not seek them. Neither Ms. Nolan nor anyone else was aware of

any other instance where the City might actually be exposed to fines under the Public Disclosure Act due

to an actual request.

Question No. 9: Is there an “overt lack of trust” in the City’s hiring practices?

Conclusion:

The answer to this question depends on who is being asked. Many employees distrust the process

and many trust it.

The Nolan Letter cites several individuals who have concerns about the hiring processes10. These

individuals confirmed during their interviews with me that the Nolan Letter accurately represents their

concerns about hiring. Their responses alone lead me to conclude that there is a high level of mistrust

among some employees. Whether or not their mistrust is justified, the mistrust is real. (As discussed in

9 Under Washington’s Public Disclosure Act provides, a party who prevails against an agency in a lawsuit seeking either to disclose a record or to receive an appropriate response within a reasonable time may recover costs and reasonable attorneys' fees. RCW 42.56.550(4). In addition, the court must also award a statutory penalty of between $5 and $100 per day for each day that the agency denied the requestor the right to inspect or get a copy of a public record. Id. See also WAC 44-14-08004(7). 10 The merits of such concerns are addressed in other sections of this Report.

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other sections of this Report, many of the rumors about bad hiring practices were only that – rumors). I

sincerely hope that this Report will help alleviate some of the mistrust once individual employees are

able to see additional facts rather than mere rumor and gossip.

Question No. 10: Does a City employee oversee the work product and payroll of her daughter, who is also a City

employee?

Conclusion:

No, this is not true.

The Nolan Letter asserts that Janice Fowler oversees the work product and payroll of her daughter, Lydia

Fowler. The Letter cites this as a “policy conflict” and then cites a management study about the

negative impact caused by nepotism. In her Letter, Ms. Nolan refers to Janice and Lydia Fowler by name

and states as fact that one oversees the work product and payroll of the other. Ms. Nolan stated during

her interview with me that she did not speak to either of the Fowlers before preparing her Letter and

did not do any independent research regarding their reporting relationship.

Lydia Fowler stated during her interview with me that her mother does not oversee her work in any

way. Janice Fowler says she does not oversee Lydia’s work. Janice Fowler also said she does not know

much about her daughter’s work, which she describes as sewer billing, and that she does not really want

to know. Janice Fowler handles payroll for the City, but explained that an accountant (Paul Vernon) is

the only one who makes adjustments and entries for Lydia’s payroll information. Janice Fowler said she

has been told she can’t make any adjustments to Lydia’s payroll records.

Paul Vernon, who has done accounting work since 1984 and worked at the City since 2007 confirmed

that Janice Fowler does not oversee Lydia Fowler’s work. He said that Janice can make clerical posts to

the payroll system, but he is the one who reconciles the accounts and who makes adjustments. He said

with these controls in place that it would not be possible for Janice to affect the payroll of her daughter.

The only “evidence” that Janice Fowler oversees the work and payroll of her daughter comes from

unsubstantiated rumors that certain employees brought to Ms. Nolan’s attention and which were then

included in the Nolan Letter. Based on my interviews, I conclude that the rumors are not true.

Question No. 11: Has the City failed to comply with its own policies that require performance evaluations and training?

Conclusion:

Many City employees have not been evaluated on a regular basis and many are past due for

performance evaluations. This conclusion is based on admissions from City Directors and is not based

on a review of personnel records.

There is no dispute that the City has not consistently completed or given employee’s performance

evaluations on a regular basis or as set forth in City policy. Chapter 6 of the Personnel Policy and

Employee Manual provides, “Employees are normally evaluated by their supervisor prior to completion

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of their trial/probationary period and usually once annually thereafter.” Ms. Levis, who oversees the

City’s Human Resources function, does not deny that evaluations are behind. Ms. Levis also agrees that

the City is behind schedule on training, including classes on harassment and discrimination.

While I conclude that the City is delinquent regarding performance evaluations and training, I did not

find evidence that any Director or other City employee was taking steps to thwart the processes or to

deny training or evaluations to anyone. Instead, this appears to be due as it is in many cases to a lack of

advance planning and probably due to the common factor of supervisors and employees being very busy

in an economy where fewer people have to do more work. It is important for employers to evaluate

employees and particularly do so according to their own personnel policies. It is also important to

provide regular training. (For example, many employment law professionals routinely advise employers

to conduct harassment prevention training every two to three years). However, the fact that the City

like so many others is behind on these programs does not mean there is widespread mismanagement or

malice.

It is important to note that the City of La Center is not alone in this delinquency. Based on my

experience as a trainer regarding harassment and supervisory practices (including classes about

performance evaluations), I know that many public and private employers are delinquent with respect

to evaluations and training. While the delinquency does not reflect favorably upon a management

team’s organizational skills, it does not mean anyone is engaged in malfeasance or inappropriate

conduct.

Question No. 12: Did the Public Works Director pressure employees to complete a citizen survey in order to ensure

project funding?

Conclusion:

The Public Works Director did not pressure employees to complete the survey.

According to the Nolan Letter, Alice Peters reported that the Public Works Director pressured Public

Works staff to take a park survey online and vote for Public Works projects so the City Council would

have to provide funding. Ms. Peters asserted that the Director has done this “numerous times” and that

many employees took the survey multiple times to influence the results. The Nolan Report did not

explain how employees might have been “pressured”.

Mr. Sarvis denies pressuring employees or even asking them to complete surveys. He also stated during

his interview with me that the surveys have nothing to do with funding although results could be used

to prioritize different projects. The Mayor agreed that the survey results would not lead to funding. Mr.

Sarvis told me that he does not recall any specific conversations about the surveys or survey process

with employees and, with the exception of Ms. Peters, no one else recalls hearing him pressure anyone

to take the survey.

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Question No. 13: Does an individual named “Paul” work as an accountant at City Hall but lack “actual credentials”?

(Although this section of the Nolan Letter is ambiguous, it could be perceived to imply that “Paul” is

allowed to work as an accountant even though he is unqualified).

Conclusion:

This assertion is not true.

Paul Vernon told me that he has worked in accounting since 1984, mostly for large companies. He has

done accounting work for the City since 2007. Ms. Levis confirms that this information is correct.

Neither the Nolan Report nor any of the witnesses who were interviewed had any concerns about the

quality of Mr. Vernon’s accounting work at the City.

The concern expressed in the Nolan Letter about Mr. Vernon is clearly rumor. Since he has been

working in accounting at the City for several years with no recorded concerns about the quality of his

work, there is no reason to believe that he is not qualified for his job. It is unfortunate that the Nolan

Letter publicly cast him in a bad light when, after hearing the concern, Ms. Nolan could easily have asked

the Mayor to check Mr. Vernon’s file or conferred with Ms. Levis to see if the rumor about no

credentials had any merit while she was still working as Interim Police Chief.

Question No. 14: Does the Public Works Director micromanage a specific employee to the point of putting the employee

“on edge”?

Conclusion:

No. The employee who supposedly was pushed to the edge denies being micromanaged.

The Nolan Report asserts that Jeromy Wirkus “has been on the edge” because Mr. Sarvis is a

micromanager. It provides as one example the alleged fact that Mr. Sarvis asked Mr. Wirkus why he was

working on a Little League reader board even though Mr. Wirkus has done the project for years.

Mr. Wirkus flatly denies the assertion that Mr. Sarvis micromanages him and also says Mr. Sarvis does

not make him feel “on edge”. He also told me during his interview that if he thought Mr. Sarvis

micromanaged him or made him feel tense in any way, he would say so. Mr. Wirkus explained that Mr.

Sarvis likes to be kept informed, but that he often works with little or no supervision from Mr. Sarvis. He

says he feels that Mr. Sarvis has confidence in him.

This particular issue is an example – together with many others – of assertions raised in the Nolan Letter

that are wholly without merit. The inclusion of so many unsubstantiated rumors in an official-looking

document prepared by the interim police chief on City letterhead did a disservice to both the City (by

harming its reputation and causing tension) and to the individual employees who were the target of

negative publicity (who were placed in a negative light in the press even though some statements were

so easily refuted).

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Question No. 15: When the Finance Director works from home, is she unresponsive to telephone and email messages?

Conclusion:

While it is certainly possible that from time to time the Finance Director – like any other manager –

might be difficult to reach, there is no evidence of a pattern that she is not responsive to telephone

and email messages.

The Nolan Letter names retired employee Cathy Winston as the source of this assertion. During my

investigation, no one else said the Finance Director (Ms. Levis) was difficult to reach.

Ms. Winston agreed to be interviewed for this investigation even though she is retired and no longer

employed by the City. Her voluntary cooperation is greatly appreciated. She confirmed that she told

Ms. Nolan that Ms. Levis could be unresponsive when she was working from home. When I asked what

she meant by “unresponsive”, she said sometimes it took a long time for Ms. Levis to get back to her

when she had a question. I asked if she knew exactly what Ms. Levis was doing at those times and Ms.

Winston replied that she did not. She agreed that there could be many legitimate reasons when a

person does not respond to a message in a prompt manner. She also correctly pointed out that she

could not possibly know what Ms. Levis was doing when she was not working at the office. Ms. Winston

was not able to recall a particular instance when Ms. Levis was not responsive. Ms. Winston also said

she could not think of an adverse impact due to unresponsiveness other than sometimes having to wait

for a question to be answered.

Ms. Levis stated during her interview with me that she tried to be responsive to messages, but candidly

admitted that this is not always possible.

Since no one other than Ms. Winston reported that Ms. Levis is not responsive, and for the reasons

discussed above, I conclude that Ms. Levis does not have a tendency to be unresponsive to telephone

and email messages.

Question No. 16: Will employees be fired if they speak to the Council or Mayor?

Conclusion:

There is no evidence that anyone has been fired or subjected to adverse treatment because they

spoke with the Mayor or Council members.

The Nolan Letter cites several employees who believe they will be fired if they talk to the Mayor or

Council members. However, it never cites a factual example of such a termination or adverse

treatment. During interviews, no one was able to cite a single documented instance when someone was

treated wrongfully after making a report or raising a concern to the Mayor or Council members.

I reject this allegation because it is based on rumor and innuendo. No specific facts were raised that

could be investigated.

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Question No. 17: Does the Public Works Director commonly tell employees “there are twenty other people who want

your job”?

Conclusion:

There is insufficient evidence to reach a conclusion as to whether Mr. Sarvis made the comment.

Mr. Pettit is the only employee who reports hearing Mr. Sarvis making this comment. The other

witnesses who I interviewed and who have worked with Mr. Sarvis said they never heard such

comments and Mr. Sarvis denies making it. Although I am unable to reach a conclusion regarding a

comment to Mr. Pettit, I can conclude that Mr. Sarvis does not engage in making the comment on a

regular basis.

Question No. 18: Does the Public Works Department flirt with “everyone”?

Conclusion:

This allegation is not true.

The Nolan Letter repeats a retired employee’s broad assertion that Mr. Sarvis flirts with “everyone”.

Mr. Sarvis’s current employees dispute the allegation and no employees reported to me that Mr. Sarvis

flirts. One of his current employees, Naomi Hansen, describes Mr. Sarvis as “fun but professional”. She

says Mr. Sarvis does not flirt with her and, even though she works closely with him at the Public Works

Department, she has never seen him flirt with anyone else.

When I interviewed Ms. Winston, I asked about the allegation of flirting and asked for specific factual

examples. Ms. Winston replied that Mr. Sarvis was always joking around and “it seemed like flirting”.

However, she was not able to provide specific examples to show why she believed he was flirting with

anyone11. Absent factual examples to corroborate her opinion and in the face of rebuttal opinions from

current employees, the assertion of flirting must be rejected.

Question No. 19: Does the Finance Director intentionally delay processing requests that the City buy back comp time from

police officers?

Conclusion:

There is no evidence that the Finance Director delays the processing of any compensation requests.

According to assertions repeated in the Nolan Letter, Ms. Levis delays police officers’ requests to cash

out comp time and does so because she believes officers are hiding the money in secret accounts from

their wives. Ms. Nolan asserts that Ms. Levis made such comments “multiple times”. Ms. Levis denies

making the statements but recalls talking to Ms. Nolan about the cash outs in general.

11 Ms. Winston said she never thought that Mr. Sarvis was flirting with her.

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During her interview with me, Ms. Levis explained that the Finance Department under her direction

issues payroll twice each month. The process for cashing out comp time is done outside of the normal

payroll cycle. Ms. Levis explained that settings related to automatic payroll deposits have to be adjusted

and then changed back in order to implement the buy backs and that the employee who handles the

payments (Janice Fowler) is often rushed with a heavy work load at the same time the payments are

being processed. Ms. Levis said there had been a few occasions when Ms. Fowler forgot to re-set the

necessary settings and the following payroll cycle would not be accurate. Ms. Levis says she has told Ms.

Fowler to take her time and be accurate when handling comp time buy backs, but she denies telling her

to simply slow down the payments and denies wanting to keep the police officers from receiving their

money in a prompt manner. Ms. Levis characterizes the issue as one intended to avoid payroll efficiency

and prevent errors. Ms. Fowler corroborates everything Ms. Levis told me and stated unequivocally that

neither Ms. Levis nor anyone else has instructed or encouraged her to delay.

Question No. 20: Does the Finance Director work under the influence of alcohol or drugs?

Conclusion:

There is no evidence that the Finance Director works while intoxicated. She has taken Xanax that

were provided to her by Ms. Peters or Ms. Winston on occasion to reduce anxiety, but there is no

evidence that her performance was affected and there is no evidence that this took place more than a

few times.

According to the Nolan Letter, Ms. Levis asked Ms. Peters to provide her with a dose of Xanax12 in late

2003 or early 2004 and asked Ms. Winston for Xanax on “other occasions”. (Ms. Peters and Ms.

Winston told me that the Nolan Letter correctly reflects what they told Ms. Nolan). Although Ms. Peters

and Ms. Winston contend that Ms. Levis asked for the pills, neither woman says that Ms. Levis

threatened them. When asked why, as the Nolan Letter represents, Ms. Peters “feared for her job”

when asked about Xanax, Ms. Peters replied that you were “never supposed to say no” to Ms. Levis.

Ms. Levis admits that she took Xanax before a few City Council meetings, but told me that she did not

ask either Ms. Peters or Ms. Winston for the pills. According to Ms. Levis. Ms. Peters and Ms. Winston

“pushed the pills” on her because they thought she was so stressed about presentations she was about

to give to the City Council.

There is insufficient evidence available for me to conclude whether Ms. Levis asked for the pills or

whether it was the other women’s idea. However, whether or not Ms. Levis asked for Xanax or the

other women “pushed” her to take them, it is undisputed that Ms. Levis took Xanax that had been

prescribed to her subordinate employees on at least two or three occasions. This was poor judgment

for a supervisory employee. As the Nolan Letter recognizes, taking someone else’s prescription or

12 Xanax (Alprazolam) is mostly used to treat anxiety disorders, panic disorders, and nausea due to chemotherapy.

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providing your prescription drug to someone else could be considered a criminal matter, but I reach no

conclusion about criminality.13

Question No. 21: Did the Finance Director pressure a former employee to retire when the employee needed FMLA leave

to care for a sick spouse?

Conclusion:

I conclude the Finance Director did not pressure the employee to retire.

The employee in question here is Cathy Winston. She told me that she decided to retire when her

husband was recovering from surgery.14 She explained that she could not think of a particular reason for

her decision to retire. She describes it as cumulative. However, she said she found it increasingly

difficult to stay on Ms. Levis’s “good side”. Ms. Winston told me during her interview that she gave

notice in approximately September 2011 with a retirement date of December 31, 2011. She explained

the primary reason for her decision was because she needed to be her husband’s caregiver and he was

having a “long, painful recovery.”

Ms. Winston also told me that she never requested FMLA (family medical leave under applicable state

and federal laws). Although she said she did not know all of the details about FMLA, she understood

that it is protected leave and knew there was a poster with details about it on display at the office. She

said she never requested FMLA because she already knew she had no paid leave left on the books and

the City was already allowing her to take time off both without pay and without being required to

request FMLA.

Ms. Winston told me that she decided to retire earlier than December because she felt that Ms. Levis

did not support her. She explained that Ms. Levis kept asking her if she was going to be able to return to

work before her retirement date. She said Ms. Levis kept saying that she “needed” her. Ms. Winston

thinks Ms. Levis did not need her to return but just wanted to have an easier time covering breaks

among the administrative staff.

According to Ms. Winston, Ms. Levis told her one evening in early October 2011 (when they were talking

on the phone) that her position was going to be cut to half time at a reduced salary after the first of the

year. I conclude that this could not exert any pressure on Ms. Winston to retire early because her

retirement would have already taken effect. According to Ms. Winston, Ms. Levis pressured her by

saying that they needed her back at the office. Ms. Winston told me that when she replied that she

needed to be with her husband, Ms. Levis suggested that she move up her retirement date.

Ms. Levis agrees that Ms. Winston never requested FMLA. She admits that when Ms. Winston asked

about remaining away from work without pay that she asked if Ms. Winston wanted to adjust her

retirement date by several weeks instead. Ms. Levis explained that she did not think this would impact

Ms. Winston since she was taking unpaid leave and did not plan to return to work after December 31st. 13 I am not on expert on criminal law and am relying on Ms. Nolan as a law enforcement officer for that point. 14 In the interest of her husband’s privacy, I will not include details about his condition in this Report.

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I empathize with Ms. Winston since she was under a great deal of personal stress due to her husband’s

recovery from surgery. However, I found no evidence that Ms. Levis or anyone else pressured her to

retire or to adjust her retirement day. Whether or not Ms. Winston would have been eligible for FMLA

is not particularly relevant since the main protection for her under that law would be the right to return

to work after the designated leave was over. Ms. Winston had previously given notice that she was

retiring and did not intend to work after December 31st.

It is undisputed that Ms. Winston was away from work on an unpaid leave. It is also undisputed that

Ms. Winston understood that she might be eligible for FMLA and knew how to acquire the necessary

information to request leave. She never requested it. Under these circumstances, I conclude it was

reasonable for Ms. Levis to inquire about when Ms. Winston might be returning to work and also for

suggesting retirement options when Ms. Winston responded that she wanted to be with her husband.

Ms. Levis’s actions did not violate the FMLA.

Question No. 22: Did the Finance Director threaten to have Alice Peters fired if Ms. Peters returned to work at City Hall?

Conclusion:

Ms. Levis told Ms. Nolan that with the application of progressive discipline, Ms. Peters could be fired

within a month. Although Ms. Levis demonstrated poor judgment by making the comment to Ms.

Nolan, I believe she did not intend to threaten Ms. Peters and did not actually plan to fire her.

According to the Nolan Letter, Ms. Levis told Ms. Nolan that if Ms. Peters returned to City Hall due to re-

organizations that Ms. Levis would “have her fired in the first month.” Although it is now undisputed

that there is no plan or potential plan to move Ms. Peters, at the time of the alleged comment such

moves were being discussed as a possibility due to possible budget cuts and the effect of collective

bargaining bumping rights. Ms. Levis recalls talking to Ms. Nolan and admits she said with the

application of appropriate progressive discipline that Ms. Peters could be fired in a month. Ms. Levis

said she did not intend the comment to be a threat and did not intend for it to cause stress to Ms.

Peters. She explained that it was not a threat because she would not have applied progressive discipline

if Ms. Peters did her job in a proper manner. (She also said she doubted Ms. Peters would perform her

job in a proper manner). Ms. Levis also said her comment was expressed as a prediction based on how

Ms. Peters did her job as opposed to a plan.

I believe Ms. Levis when she says she did not intend to be threatening. I also understand how Ms. Nolan

could have interpreted Ms. Levis’s comment to be threatening to Ms. Peters’s continued employment if

Ms. Peters transferred to City Hall. Ms. Nolan states in the Nolan Letter that she cautioned Ms. Levis

after she made the comment; Ms. Levis agrees that Ms. Nolan said something like “You can’t say that.”

This corroborates the fact that Ms. Nolan thought the comment was inappropriate.

Ms. Levis expressed what I perceived to be sincere regret that her comment had caused stress. She said

she did not think Ms. Nolan would repeat the conversation to Ms. Peters and did not know Ms. Nolan

had done so until the Nolan Letter was published. I conclude that Ms. Levis could not reasonably have

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known that Ms. Nolan would repeat her comment to Ms. Peters and thereby cause additional stress at

a time when budget cuts were already a possibility.

Ms. Levis demonstrated very poor judgment by making the comment to Ms. Nolan even though I believe

she did not intend to threaten Ms. Peters and did not actually plan to fire her. I also believe Ms. Nolan

exercised poor judgment and caused unnecessary stress to Ms. Peters by repeating Ms. Levis’s comment

to her. A better course of action would have been to alert the Mayor or City Attorney about the

comment, especially if it began to appear as though Ms. Peters would actually be moving back to City

Hall.

Question No. 23: Were certain City employees drunk at Centennial Days in 2009 or other City events?

Conclusion:

Some City employees were drinking at Centennial Days 2009 at a tavern but not while on duty. A few

admit to drinking but not to being drunk; one employee says she was probably tipsy. I conclude that

several City employees were drinking and perhaps tipsy but none of them drank while on duty.

Contrary to the assertion raised in the Nolan Letter, there is no credible evidence that Ms. Levis had a

cooler full of alcohol in Council Chambers or that she was drinking in Chambers with staff and citizens.

Other than Ms. Peters, no witnesses reported seeing Ms. Levis and other employees drunk at Centennial

Days 2009 (or any other Centennial Days annual event). Ms. Levis and the two employees named with

her in the Nolan Letter freely admit that they had drinks together after they finished their Centennial

Days official activities. The three consistently stated that they were at a tavern and not in Council

Chambers. All deny drinking at any City facility and all deny drinking while they were “on Centennial

Days duty”. Naomi Hansen laughed when she recalled the day, explaining that she had been working in

period costume and knows she must of looked “really eager” for a drink at the time after being stuck in

the heavy costume all day.

Other than Ms. Peters, no one stated that they saw Ms. Levis with a cooler full of alcohol or filled with

anything else while in the Council Chambers during Centennial Days. A few witnesses stated they

recalled seeing Ms. Levis tell a citizen she could not have a cooler inside City premises and tell the citizen

to remove it. Ms. Levis said she can’t remember if it was Centennial Days 2009, but said she thinks she

has told citizens they could not bring coolers into Chambers during the event. (Ms. Levis and the other

witnesses explained that employees and citizens who are participating in Centennial Days events as

“performers” or guides often change clothes and leave things in Chambers while they are “on duty”).

The Mayor said he has never received a citizen complaint that City employees are drunk at Centennial

Days.

Based on the witness interviews, I conclude that the assertion of public drunkenness or allowing alcohol

on City property is not true.

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Question No. 24: Does the Public Works Director make inappropriate comments of a sexual nature about customers at a

local hair salon?

Conclusion:

No, but I conclude he did make complimentary and joking comments that were not crude.

According to the Nolan Letter (based on statements made to Ms. Nolan by Ms. Peters), Mr. Sarvis makes

inappropriate sexual comments about patrons of a local hair salon. According to Ms. Peters, he made

the comments “all the time” and on a daily basis. Other than Ms. Peters, no one asserts that Mr. Sarvis

made crude or sexual comments about the salon patrons.

Ms. Winston told me that she used to take daily “smoke breaks” with Mr. Sarvis. She said she recalls

that he sometimes said things like “Boom ba boom ba dee boom” when a pretty woman walked by. She

said they both laughed and he never offended her when he did this. She compared it to siblings joking

around together. I note that when Ms. Winston related this story to me, she laughed and seemed to be

re-living and re-enjoying the moment. Based on her demeanor, it is clear to me that the comments by

Mr. Sarvis did not offend her. In fact, it appears that she welcomed them. Ms. Winston told me that

these types of conversations were not a common occurrence, but she could not guess at how often Mr.

Sarvis might have made such comments.

The owner of the hair salon says she has never had any problems with Mr. Sarvis and none of her

customers have ever complained about him to her. She said she has never noticed Mr. Sarvis watching

or staring. She said she has no concerns about him at all. A current Public Works employee who works

on a daily basis with Mr. Sarvis in an office next to the hair salon told me that she has never heard Mr.

Sarvis make crude or suggestive comments about the women. Other employees who work less closely

with Mr. Sarvis told me that they also have never heard him talking about the salon clientele.

Mr. Sarvis admits that he made complimentary comments on occasion about pretty women, but denies

saying anything crude and denies making sexual references.

I conclude that Mr. Sarvis made complimentary comments about women from the hair salon, but I

conclude there is insufficient evidence to support Ms. Peters’s contention that he made crude or

suggestive comments in the past. I note that Ms. Peters asserts that Mr. Sarvis made crude comments

on a “daily basis”. The fact that no one else reports ever hearing such comments and the salon’s owner

never suspected such behavior causes me to doubt Ms. Peters’s contention that the behavior was a

daily occurrence or even frequent. Finally, I conclude based on statements made to me by people who

currently work with Mr. Sarvis that he does not make inappropriate comments about salon patrons at

this time (which should not be taken to imply that he has ever made such comments).

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Question No. 25: Did the Public Works Director refer to Alice Peters as a “short timer”?

Conclusion:

The Public Works Director did not describe Ms. Peters as a “short timer” to anyone else, but he did

address her as “short timer” in an email message that he sent only to her. I conclude that in context,

“short timer” referred to Ms. Peters’ anniversary date (and long tenure). It was an attempt at humor

by Mr. Sarvis and not an effort to make her think her job was in jeopardy.

Mr. Sarvis admits that he sent the “short timer” email to Ms. Peters and told me why during his

interview. He explained that before Ms. Peters transferred to the Police Department and while she still

reported to him, she set up an automatic and recurring alert of her anniversary date – September 9th –

on his office calendar. He said it is still on his calendar because he’s not quite sure how to remove it and

keeps forgetting to take care of it until it pops up another year. Mr. Sarvis provided me with a print-out

of the calendar alert. It states “Alice’s anniversary with the city” and that it “Occurs every September 9

effective 9/9/2006”.

Mr. Sarvis believes that he has made the “short timer” joke to Ms. Peters on other anniversaries as well

as the time referenced in the Nolan Letter. He says he has done so in the context of joking about the

calendar alert showing up again.

The Nolan Letter states that Ms. Peters “assumed” that Mr. Sarvis was referring to her job security.

Based on the calendar alert and her actual anniversary date, I do not think Ms. Peters’ assumption was

reasonable. In any case, I credit Mr. Sarvis’ specific information over mere assumptions.

Question No. 26: Does the City give preferential treatment to job candidates or vendors because they are friends with the

Public Works Director or Finance Director?

Conclusion:

There is no evidence that the City gives such preferential treatment.

The Nolan Letter states and/or implies that some City employees were given preferential treatment in

the hiring or contracting process because of their personal connections to Mr. Sarvis. It makes these

accusations by stating alleged facts such as:

Lydia Fowler was a questionable hire because she used to work as a bartender and watch Mr.

Sarvis’s dogs.

Aaron Wilkinson, Matthew Hollenbeck and Bill Birdwell were hired without having to fill out

applications.

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Jenny Olive is a “friend of Lydia’s that needed a job”.

Jerrod Marxmiller, a vendor, did personal work for Mr. Sarvis and is now granted contracts.

Lydia Fowler

With respect to Ms. Fowler, it troubled me how the Nolan Letter repeatedly referred to her as a former

bartender and seemed to imply such a background is bad. I can’t imagine why repeated references to

former employment as a bartender was relevant and I have given no weight to that fact other than to

recognize Ms. Fowler must have been used to hard work with difficult people. One would think this

made her an excellent candidate.

Ms. Fowler and Ms. Levis described in detail and in a credibly consistent manner how Ms. Fowler was

hired. A detailed history is not necessary and a brief summary will suffice. Ms. Fowler was hired for a

temporary three-day assignment to cover work when another employee was on leave. She did a great

job. The temporary assignment lasted and Ms. Fowler continued to do a great job. When a permanent

position opened, Ms. Fowler was hired. It is a classic example of what many individuals hope to achieve

through a temporary work assignment.

Other than the accusations of individuals who have no personal knowledge about or experience working

with Ms. Fowler, there is no credible factual evidence that Ms. Fowler was a questionable hire. There is,

however, substantial evidence that Ms. Fowler was an excellent hire and is doing an excellent job. No

reasonable person could call it a questionable decision to hire her when a permanent position became

available.

Aaron Wilkinson/Matthew Hollenbeck/Bill Birdwell

I viewed copies of the applications submitted by Mr. Wilkinson, Mr. Hollenbeck and Mr. Birdwell. They

are official City records and proof that these assertions as repeated in the Nolan Letter are untrue.

Jenny Olive

The Nolan Letter repeats someone’s speculation that Ms. Olive was hired because she is a friend of Lydia

Fowler’s who needed a job. Both Ms. Fowler and Ms. Olive told me that they did not know each other

before Ms. Olive started working at the City. Ms. Olive explained that she was referred by an

employment agency for a temporary position. Prior to that referral, she had not known anyone who

worked at the City and had never been to the City. Ms. Levis also told me that Ms. Olive was referred by

an agency and, as far as she knew at the time, no one at the City knew her.

Again, the statement repeated in the Nolan Letter was false.

Jerrod Marxmiller

With respect to Mr. Marxmiller, I do not need to look past the text of the Nolan Letter to dismiss the

implied accusation that he is being granted favoritism in the awarding of City contracts. The Nolan

Letter casts Mr. Marxmiller in a bad light based on the fact that he has allegedly had repeated contracts

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with the City and because he also acknowledged to Ms. Peters and Ms. Bowerman that he knows that

he needs to bid for contracts. The Nolan Letter implies that this comment is suspicious, but I disagree.

It is completely insufficient to raise a suspicion of improper contracts and certainly insufficient to require

independent review.

Question No. 27: Did the Finance Director lie about attending a conference?

Conclusion:

No, Ms. Levis attended the conference.

The Nolan Letter includes an assertion that Ms. Levis lied about attending a work-related conference.

The claim is plainly based on a chain of rumor.15 Paul Vernon told me during his interview that he saw

Ms. Levis at the conference and attended sessions with her. Ms. Levis also states she attended the

conference in question. I believe them based on their demeanors. I did not ask to see financial records

regarding expenses or travel because I do not think either individual should have to take such steps

based on such a patently flimsy hearsay-upon-hearsay assertion.

Question No. 28: Was Alice Peters harassed at work due to the “Big Deck” video link?

Conclusion:

There is substantial evidence that Ms. Peters did not find the video to be unwelcome or offensive

although she now claims otherwise. Although this means she was not harassed due to the video, I still

conclude that Mr. Sarvis demonstrated poor managerial judgment by forwarding the link to her.

During her interview with me, Ms. Peters confirmed that the facts regarding the “Big Deck” video as

stated in the Nolan Letter accurately reflect what happened and what she told Ms. Nolan.

It is undisputed that in July 2011 Ms. Levis sent Mr. Sarvis the link to a skit from the “Blue Collar Comedy

Tour” starring Drew Carey. It is also undisputed that Ms. Levis sent the link from her private email

address to Ms. Sarvis’s private email address. I conclude that Ms. Levis did not send the link to anyone

other than Mr. Sarvis, who is her partner and with whom she resides. I disagree with and expressly

reject the Nolan Letter’s contention that Ms. Levis somehow exacerbated the City’s risk by privately

sending the video link to her partner.

It is also undisputed that Mr. Sarvis emailed the video link to Ms. Peters. He stated that she asked to

receive the link, but Ms. Peters denies asking. Whether or not Ms. Peters asked Mr. Sarvis to send it is

irrelevant if the video was obviously offensive or if Mr. Sarvis had a basis for thinking Ms. Peters would

think it was offensive. As discussed below, I conclude that Mr. Sarvis reasonably believed the video link

would be welcome to Ms. Peters.

15 The Nolan Letter says another City’s police chief told Alice Peters that one of his employees told him that Ms. Levis was not at the conference.

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As part of this investigation, I watched the skit on line. The routine16 relies on a play on words where

the performers’ many references to a “deck” are re-interpreted by the audience as references to a penis

even though the men on stage are obviously talking about actual wooden decks. No reasonable person

watching the routine would conclude that the men on the porch are actually talking about their penises.

At the same time, no reasonable person could miss the point that whoever scripted the skit wants the

audience to imagine that the men are talking about their anatomy. That is what makes the skit funny to

its target audience, which is seen weak with laughter during the performance.

I dispute the Nolan Letter’s characterization of the skit as “profane.” First, the word “profane” is clearly

not applicable and the Nolan Letter probably meant to call the skit obscene or pornographic.17

However, I also believe it would be an exaggeration to call the skit obscene; it certainly is not

pornographic. I recognize that some people might feel uncomfortable watching the skit and some will

consider it to be in very bad taste, but it is also clear that if the skit appeared in a movie it would not

result in an R rating. At most, it would be PG-13 and perhaps not even that.

Although I believe the Nolan Letter goes too far in referring to the video as “profane” (or obscene), I

agree that a manager or supervisor should not provide the skit to (or joke in the same manner with)

subordinate employees or peers at work. Even though the skit is not obscene, Mr. Sarvis demonstrated

poor judgment by giving the link to Ms. Peters due to its focus on the implied reference to penises. Mr.

Sarvis asserts that Ms. Peters asked to receive the video link after she heard people laughing about it.

Ms. Peters denies asking to receive it. This is a classic instance of one person’s word against another’s

and I cannot resolve it. However, whether or not she asked to see it, Mr. Sarvis should not have emailed

it or otherwise provided it to Ms. Peters.

At the same time, I conclude that Mr. Sarvis’s conduct did not cross the line from poor judgment to

harassment. I am not reaching legal conclusions in this report since I am not a judge, but I am well

aware of the legal standards pertaining to workplace harassment. In my opinion, Mr. Sarvis’s action

regarding the “Big Deck” routine does not meet the definition of “harassment” for several reasons. A

primary reason is that I am convinced Ms. Peters did not actually find the video to be offensive or

unwelcome.18 There is a great deal of evidence that leads me to this conclusion.

For example, Ms. Winston told me that she has talked to Ms. Peters about the “Big Deck” video. She

said they did not talk about it until after the Nolan Letter was published in the local newspaper. Ms.

Winston told me that Ms. Peters said it was not the content of the video but “how it was presented”

that bothered her. According to Ms. Winston, Ms. Peters did not seem “all that offended”. Since Ms.

Winston sympathizes with Ms. Peters, I find her comments to be credible.

16 Four men are sitting on a front porch, talking at the end of the day and enjoying some beer. 17 Although it can also mean vulgar, “profane” is more commonly defined as “irreverence or contempt for God or sacred principles or things; irreligious.” (Dictionery.com) 18 I also do not think Mr. Sarvis’s behavior in this instance was “severe”, as can be required under the legal standard. It appears instead to be an isolated incident as opposed to a pattern. Further, since Ms. Peters never “complained” about the video until years after the fact, I believe a court would apply the affirmative defenses applicable to harassment lawsuits and reject the claim if it were made.

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A more persuasive basis for my conclusion that Ms. Peters was not truly offended by the video is my

review of communications that Ms. Peters sent to Mr. Sarvis when she reported to him. For example, I

was provided with a copy of an email that Ms. Peters sent to Mr. Sarvis on August 24, 2006. The subject

line says, “ARE MY JEANS TOO TIGHT?” and a message from Ms. Peters says, “My friend took this photo

downtown Portland. Alice.” A photo is attached that shows a woman smiling at the camera as a man

walks by in the background. The man is wearing pants that are so tight that everything joked about in

the “Big Deck” video is clearly outlined. Based on the subject line of the message, the visible bulge and

clear outline are obviously the whole point of the photo. I believe it is reasonable to conclude that

anyone who would find this photo to be humorous or acceptable to send to his or her boss would not

find the “Big Deck” video to be unwelcome or offensive. I also conclude that since he had received

materials like this from Ms. Peters that Mr. Sarvis believed she would enjoy the humor of the “Big Deck”

video.

I still conclude that Mr. Sarvis displayed poor judgment by sending the video link to a subordinate

employee. Similarly, I conclude Ms. Peters demonstrated poor judgment in sending the “bulge” photo

to Mr. Sarvis. Finally, I also conclude that Mr. Sarvis also should have instructed Ms. Peters not to send

such materials to people at work.

In addition to the email described above, I was provided with emails from 2005 and 2006 sent by Ms.

Peters to Mr. Sarvis that include:

A photo of an overweight man on a jet ski, with a prominent “plumber’s crack” on

display as he rides away. Ms. Peters wrote, “I asked Dani which Officer this was?”

A sketch of Mickey Mouse “giving the finger” with a “humorous” poem about not

giving “a sh**”, and other messages with various depictions of people or cartoon

giving “the finger”.

A poem called “Love Story” that starts out sounding like a description of sexual

intercourse but concludes with the surprise ending that the writer is talking about

having the flu.

A message explaining that some employees will be unable to attend an employee

holiday luncheon and therefore Mr. Sarvis needs to bring more food. She wrote,

“SSSSSSOOOOOOOO I need you to bring more meat than you had planned . . . I

know you have a lot of meat so this should not be a problem.”

For the reasons described above, I conclude that a reasonable person would believe Ms. Peters would

not be offended by the “Big Deck” comedy routine and I also conclude that Ms. Peters probably was not

actually offended at the time. While I also believe it was poor judgment for Mr. Savis to send the video

to an employee, I do not believe his conduct constitutes “harassment”.

Ms. Peters contends that around the time the video was sent to her that Mr. Sarvis joked frequently

about his “big deck”. Mr. Sarvis denies making such comments. No one other than Ms. Peters recalls

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that Mr. Sarvis made such comments. Ms. Winston told me that she used to go on “smoke breaks” with

Mr. Sarvis all the time and that they joked about a lot of things. She told me that she did not remember

him ever joking about “big decks”. Based upon Mr. Sarvis’s denials and the lack of corroboration, I

conclude that it is more likely than not that Mr. Sarvis did not personally joke about “big decks” at work.

Question No. 29: Does the Finance Director yell and scream at employees?

Conclusion:

The Finance Director raises her voice, but does not yell or scream.

Ms. Levis freely admits that she has a “bit of a short fuse” and that she raises her voice at work. She

denies “yelling” or “screaming” at anyone.

Ms. Levis’s current employees stated during interviews with me that they have not heard her scream or

yell at anyone. However, they agree that Ms. Levis does raise her voice often or “from time-to-time”.

Other employees who have contact with Ms. Levis at work but who do not report to her also said they

hear her raise her voice, but no one other than Ms. Peters asserted that she yells and screams.

Question No. 30: Did the Public Works Director use Alice Peters’ computer to send email messages to the Finance

Director that were purportedly from Ms. Peters?

Conclusion:

There is insufficient evidence to reach a conclusion about this allegation. However, if the conduct did

take place, I conclude it was minor and did not disrupt the workplace.

According to Ms. Peters and the Nolan Letter, Ms. Peters said that “on at least one occasion”, Mr. Sarvis

sent emails to Ms. Levis from Ms. Peters’s open email after she stepped away from her computer. The

Nolan Letter cites this action to support the statement that Mr. Sarvis is an “instigator”. The Nolan

Letter asserts that Ms. Peters “had to call and apologize to Suzanne [Levis] for whatever Jeff [Sarvis] had

sent.

Mr. Sarvis denies sending emails to anyone that purported to be from Ms. Peters. Ms. Levis said that

Ms. Peters never apologized to her for an email that appeared to come from her but had actually been

sent by Mr. Sarvis. Clearly, the facts as portrayed by Ms. Levis and Mr. Sarvis conflict with those

presented by Ms. Peters.

I believe it is possible that Mr. Sarvis played such a practical joke by sending an email, but since Ms. Levis

does not recall the incident I think it is more likely than not that it did not take place. If it did take place,

it would be a lapse of good judgment and not harassment.

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Question No. 31: Did Alice Peters fear retaliation from the Finance Director, Public Works Director or both once the

information in the Nolan Letter was disclosed?

Conclusion:

Yes, however there is no evidence of any adverse conduct toward or adverse decisions about Ms.

Peters since the Nolan Letter became public.

Ms. Peters says she fears retaliation and seems to sincerely believe she is at risk. However, her personal

fears are not credible evidence that either Director has or will do something wrong.

Question No. 32: Was a recent budget-cut discussion at the City an attempt to take adverse action against Alice Peters?

Conclusion:

No.

In today’s economic times, the City would have been reckless not to consider all options open to it

during its budgeting and negotiating processes. I believe the City’s representatives seriously considered

options including budget cuts, but other than Ms. Peters’s (and perhaps Ms. Nolan’s) speculation, there

is no competent evidence that budget cut possibilities were discussed in order to affect Ms. Peters in

any way. Her speculation, especially in light of her obvious bias against the two Directors, is wholly

insufficient to support her allegation.

Question No. 33: Did the Public Works Director make sexually suggestive comments to Alice Peters after she lost weight?

Conclusion:

Ms. Peters alleges that the discussion took place; Mr. Sarvis denies making offensive comments. This

is a classic instance of one person’s word against another, so I am unable to reach a conclusion with a

sufficient degree of confidence.

Mr. Sarvis emphatically denies making the statements. Ms. Peters insists that he made them. The fact

that Ms. Peters complained to no one about the comments at the time and apparently did not mention

the comments to anyone at the time tends to weaken her assertion. Other than this particular

allegation, there are no assertions that Mr. Sarvis made such direct and personal comments toward Ms.

Peters or anyone else.

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This allegation of the Nolan Letter is the only one that asserts Mr. Sarvis made direct, personal

comments of a sexual nature to Ms. Peters. While I am not able to reach a firm conclusion about the

specific allegation, I can conclude that there is no evidence that Mr. Sarvis has a pattern of making

sexually suggestive comments. I also note that his current employees – male and female -- maintain

that he has not made sexually suggestive or other offensive comments at all.

Submitted on April 3, 2014.

______________________________ Jim Webber Jim Webber | Training - Consulting - Investigations ______________________________________________ 19725 40th Ave. W | Suite C Lynnwood | Washington | 98036 206.601.9242 | jim@jcwebber.com