Attorney bills have been kept secret
Gilroy – The city spent nearly $700,000 to get rid of former building official Rex E. Wyatt.
Council members paid him $370,000 last month to drop a wrongful termination lawsuit against the city. This week, in response to a Dispatch public records request, officials disclosed they spent more than $318,000 investigating sexual harassment complaints against Wyatt and defending the subsequent decision to dismiss him.
Wyatt was fired three years ago on charges that he made sexually suggestive comments to a subordinate, but a superior court judge overturned that decision last fall.
In September, Mayor Al Pinheiro cited the cost of further litigation as a factor in the decision to settle the Wyatt case. This week, he defended the hundreds of thousands spent in the last three years on the internal City Hall investigation, administrative appeals process and legal fees related to the case. Other cities, he said, have spent equal amounts for failing to investigate and dismiss employees accused of harassment.
“My thought is that we went through the process and had we not done that, we could have very well been on the other side, being sued by the people making the allegations that we didn’t take the matter seriously enough,” Pinheiro said. “We could have lost on the other side of the coin. We did everything we could to do this process in good faith.”
The case involving Wyatt, 49, transformed into a potentially expensive counter-suit last fall after a judge overturned the dismissal and ordered his reinstatement with full back pay. The decision freed Wyatt to sue for a violation of his due process rights during a City Hall investigation that cost nearly $31,000, and which his lawyer likened to a “runaway train.”
A dozen workers across the building, engineering and planning departments were interviewed as part of the investigation triggered by Carolyn Costa, a permit technician who accused Wyatt of harassment after he gave her a negative employee evaluation. Costa left her job at City Hall earlier this year.
In an Oct. 2003 letter of termination, Community Development Director Wendie Rooney told Wyatt he was being dismissed “based on the investigative findings that you made inappropriate sexually suggestive comments and improperly disclosed personal information to a subordinate, initiated unwelcome invitations to subordinate co-workers to meet for drinks, and established and maintained an intimidating work environment toward subordinate co-workers. Additionally … it is determined that you were not credible, or in the alternative, less than forthcoming during the investigative interview process.”
The conclusion that Wyatt violated rules on sexual harassment and workplace discrimination was subsequently upheld by the Gilroy Personnel Commission, City Administrator Jay Baksa and city council. The entire administrative process cost $77,740.
While the investigation exposed strained relations between Wyatt and a number of employees, his lawyer Steven Fink argued that investigators failed to seek out evidence and witnesses that could have exonerated his client. Fink also faulted city officials for inadequately educating employees on the city’s “zero tolerance” harassment policy.
The court ruling did not offer a detailed critique of the city’s handling of the matter, but simply stated that the weight of evidence did not support the decision to fire Wyatt.
Of the $318,242 in total fees related to the case, the bulk went to Hopkins & Carley, a San Jose law firm that represented the city in the matter for more than a year. The firm earned more than $281,000 for handling portions of the initial investigation and administrative process, along with the majority of litigation and settlement negotiations.
The city has chosen to withhold attorney billing statements and other documents detailing costs in the Wyatt case, arguing that the paperwork is protected by attorney-client privilege and could “reveal the motive of the client in seeking representation (or) litigation strategy.”
The argument violates the spirit of public records laws and flies in the face of common sense, according to Terry Francke, legal counsel for CalAware, an open government advocacy group. When a case is over, there is no reason to continue withholding records that could expose a legal strategy, he said.
“Moreover, there is the over-riding public records requirement to segregate the information that is truly protected and provide the rest,” Francke said. “If they believe that there are one or two lines in a document that are sensitive or protected, they could take that out.”
Pinheiro said he plans to confer with city attorneys about the release of the documents. State law allows city council to waive attorney-client privilege.
