No formal action taken by board
Sarasota City Manager Tom Barwin has promised the city commissioners that he will try to do a better job of communicating to them information regarding employee allegations of discrimination or hostility in the workplace.
However, as City Attorney Robert Fournier pointed out as part of a 70-minute discussion during an Aug. 19 special meeting, staff must be careful about violating confidentiality laws.
That means staff also has to be cautious about not generating records that could be accessed by the public through the Sunshine Laws in cases involving allegations under investigation, he said.
Commissioner Liz Alpert emphasized the need to prevent the public airing of complaints until such time as investigations have determined those complaints to be valid.
As an attorney, she likened that approach to the process the Florida Bar pursues whenever a complaint is lodged against a lawyer. Nothing is made public, Alpert continued, “unless they find wrongdoing.”
Summing up the purpose of the special meeting, Vice Mayor Shelli Freeland Eddie said, “This is a policy decision [about the types of information the city manager should communicate to the board], but it’s also an expectation discussion.” Part of what she had heard that night, she continued, was that Barwin is not always certain what he should convey to the commissioners and what Fournier should let them know. “And then there’s just the regular, commonsense thing that says, ‘Hey, as the city commissioner, I shouldn’t have to rely upon an email or a phone call from the media in order to get information about what’s going on in my own city.”
“We all talk to the city manager about issues that are exclusively under his purview,” Commissioner Hagen Brody said, adding that he believes Barwin “wants our opinion on most things.” The commissioners should encourage him “to communicate with us” and ask board members’ opinions, Brody added. Significant issues, Brody stressed, should not be “slipping through the cracks.”
“Philosophically,” Brody said, “I believe our role is to be the voice and the presence of the people in the city government and in these matters.” When information he feels they need to know fails to reach the commissioners, Brody added, city residents are kept out of the discussion.
Brody said he feels the board members should get quarterly and semi-annual reports about formal complaints city employees have lodged, because the commissioners do make decisions related to city staff, including providing for raises in city budgets; therefore, he indicated, they should be aware of employee issues.
“I do try to keep you informed on everything of interest,” Barwin told the board members. “I try to anticipate what you need to know.”
However, Barwin pointed out, he has been working from memory, not notes, when he conducts one-on-one sessions with the commissioners. “If I miss something … probably 10 other things have flooded into my mind. … I should probably start working from notes.”
Brody won Freeland Eddie’s support to call for the special meeting to discuss one employee’s allegation of racial discrimination on the part of city Finance Director Kelly Strickland. City Attorney Fournier had explained that, before such a session could be conducted, two board members had to request it.
After the decision was made to hold the session, two former employees of the Parks and Recreation Department’s division that handles special events and city auditorium rentals wrote emails to the commissioners, describing situations that they contended were indicative of a hostile work environment. They contended that Deborah Perez, who manages the division, discriminates against Latinos and has a history of hostility toward some employees while giving preferential treatment to others.
The only EEOC complaint that has been filed in regard to that division, Fournier reported on Aug. 19, relates to an alleged sexual harassment incident, which former division employee Sheyla Pena described in her email to the board members.
However, Fournier stressed, that involved security guards working at an event at the Municipal Auditorium. Those guards were employees of a private company, not the city, Fournier added.
As for the other case: In early July, Lorrie Ann Simmons, a former Finance Department employee who is African American, filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that Strickland did not promote her last year to the position of deputy finance director because Strickland is a racist.
A city investigation conducted by the Human Resources Department and the City Attorney’s Office found that Strickland had made inappropriate comments of a racial nature to employees at various times, but it also concluded that Strickland did not discriminate against Simmons in hiring someone other than Simmons as deputy finance director.
Mayor Jen Ahearn-Koch told her colleagues on Aug. 19, “I can attest to the fact that in the three years and three months that I have been in office, this would be the first thing [Barwin] has missed to inform me about.”
She added that she had talked with him about the situation, “and I am comfortable with the results of our conversation.” Ahearn-Koch also said that she agreed with Alpert’s remarks about the need to make certain unfounded allegations are not aired publicly.
Setting the stage
At the outset of the Aug. 19 meeting, City Attorney Fournier explained that whenever an employee makes a complaint about a workplace incident, “It is the City Administration that decides what to do [about that],” including whether an investigation should be undertaken.
Then, if an allegation proves true, he added, a decision has to be made about the appropriate remedies. Counseling is one option, he said, while employee termination is what takes place “in extreme cases.”
Nonetheless, he pointed out, the City Charter gives the city commissioners the right to “speak out … on such matters,” including how situations are handled. Therefore, Fournier said, the board members could talk about implementing any new policy in regard to such incidents.
During the discussion, Barwin told the commissioners, “This is my fifth city. I’ve worked for probably 100 elected officials over the course of my 39-year career. I do try to understand intimately what each and every commissioner would like to know and when they would like to know it.”
He further acknowledged that while staff tries to anticipate issues that might become the focus of public attention, “Every once in a while we miss something.”
As for why he did not report to the board members about the Strickland complaints, Barwin continued, “I can only say it was an oversight,” adding, “The crush of business” and the multitude of matters with which he has had to deal since the COVID-19 pandemic began in March were other reasons he likely failed to make the information known to the commissioners.
“I guess we should always think that everything could be [made] public,” he said.
Barwin indicated that Martin Hyde, a city businessman who last week lost his second campaign for City Commission, had provided details about the Strickland investigation to the news media.
When Vice Mayor Freeland Eddie asks how administrative staff becomes aware of EEOC complaints, Human Resources Director Stacie Mason responded that she informs Deputy City Manager Marlon Brown or Assistant City Manager John Lege by phone or in person.
Fournier pointed out that if a discrimination lawsuit were filed, staff would inform the board members about that. Some EEOC complaints are mediated or settled, he added, and some are determined to be unfounded, with no litigation ensuing.
Then Barwin referenced a proposal that Brody also made during the special meeting — that outside counsel be kept on retainer to investigate the more serious types of employee allegations.
If an issue rises to a certain level of significance, Barwin continued, “Our [Human Resources] Department does confer with the City Attorney’s Office.” Assistant City Attorney Sarah Warren, Barwin noted, “is a wonderful labor attorney. … She was fully involved with [the complaints about racial discrimination involving Finance Director Strickland].”
Barwin added, “Discrimination is not allowed in our organization. We take every allegation seriously [and attempt] to respond swiftly.”
After conferring with Human Resources Director Mason and Fournier, Barwin told the board members, “Certainly we will be more cognizant of any EEOC potential cases and brief you …”
Fournier added that he feels the Human Resources Department “does a very fine job” of conducting investigations into staff complaints “and being fair and objective.”
He said his office is asked to get involved in cases on an as-needed basis. Fournier also indicated his belief that his staff does not need to be brought into a matter when no allegation of unlawful conduct has arisen.
Fournier did acknowledge thinking in the past about situations when hiring outside counsel might have been preferable, given his staff’s close working relationship with personnel in the Human Resources Department. Still, he told the commissioners, “I don’t know … if you’d want to go outside on every little complaint …”
Commissioner Alpert said she did not feel outside counsel should be employed on a regular basis. However, she continued, the commission could consider enacting a policy calling for the Office of the City Attorney to hire another firm to handle a case if Fournier felt it would be inappropriate for his staff to deal with it.