Almanac

News - January 6, 2010

Atherton officials: Silence on settlement an oversight

by Andrea Gemmet

Atherton officials said that the failure to inform residents about a $230,000 pay-out to a former police officer was an oversight, and one that won't happen again.

In late October, the town reached a settlement with Pilar Ortiz-Buckley, a now-retired Atherton police officer, said her attorney John Bonagofsky. The $230,000 settlement ends the sexual harassment and disability discrimination lawsuit Ms. Ortiz-Buckley filed against the town and Atherton public works supervisor Troy Henderson.

While the settlement deal was finalized Nov. 19, information about it didn't become public until nearly a month later, when Mr. Bonagofsky posted information about it on attorney-rating Web site Avvo.com.

City Attorney Wynne Furth told The Almanac that the town is required only to respond to inquiries about multi-party settlements but is under no legal obligation to announce it.

"We have a new city manager, and a new city attorney and we simply need to give them instructions on what the council wants in the future," said Councilman Charles Marsala. "I think they did the right thing by following the letter of the law, but that's the minimum standard and our residents and our council expect things to be more transparent. I don't think it was anything malicious on their parts, but I think we can do better."

Peter Carpenter, the president of the Atherton Civic Interest League, said he was outraged at how the settlement was handled, and pointed out that it represents about 20 percent of Atherton's annual parcel tax revenue.

"Frankly, I think the town was morally derelict in the way that they have handled this," he said in an e-mail to The Almanac.

Mr. Marsala requested that the council discuss creating a policy on disclosure of information at next week's study session on the town's priorities for the coming year. The meeting is set for 9 a.m. Monday, Jan. 11.

"In hindsight, if you want to analyze it, obviously a press release should have been issued immediately from the city attorney or city manager," said Councilwoman Elizabeth Lewis. "It was certainly not something that was an attempt to hide anything."

Councilman Jim Dobbie said the council should have made the announcement. "I think it was a mistake not to announce it," he said.

Council members were instructed not to discuss the settlement until it was finalized, but the council members reached for this story said they did not know precisely when that occurred.

Ms. Ortiz-Buckley and her attorney were first to sign the settlement, on Nov. 4, and Mr. Henderson was the last, on Nov. 19. City Manager Jerry Gruber signed on behalf of the town on Nov. 16.

Ms. Furth said she and the city manager executed the settlement as instructed and did not report back to the council when it was finalized.

Mr. Gruber said he didn't want to second-guess why Ms. Furth didn't inform the council when the settlement was finalized but said he was committed to making sure the council is kept informed in the future.

"I think we can do a better job of communicating with the public regarding settlements, absolutely," he said. "There's a commitment from my office that we will make every effort to make sure we're transparent at city hall."

The case was on a City Council closed session agenda on Oct. 19, just a few weeks before Atherton voters were asked to renew the town's special parcel tax in the Nov. 3 election. At that meeting, the council voted unanimously to authorize settlement negotiations, Ms. Furth told The Almanac on Jan. 4.

The $230,000 payment comes out of Atherton's general fund, and isn't covered by insurance, according to Mr. Gruber. The sum represents a sizable chunk of the town's annual revenue. In February, Atherton faced a $2 million revenue shortfall in its $10.6 million adopted budget and had to make a series of mid-year cuts.

Atherton now has employee practices liability insurance that would have covered the lawsuit settlement — after a $100,000 deductible — but apparently the town didn't elect to get that coverage in the past, said Assistant City Manager Eileen Wilkerson.

"It's a lot of money, and the only reason for the amount of money is that we believed it would cost even more money if (the lawsuit) went ahead," Mr. Dobbie said. "There's not any great guilt there, but legal fees are so high that if you keep going to court, it can get up to that amount of money very quickly."

Attorney Jim Ewert of the California Newspaper Publishers Association, an expert on California's open meeting law known as the Brown Act, said that by staying quiet about the settlement, the town followed the letter of the law, but it's questionable whether officials had the spirit of the law in mind.

"The pending litigation exemption in the Brown Act is to permit agencies to discuss the merits and weaknesses of pending or existing litigation without having to reveal to the other litigants what the town's strategy is. Since the (Atherton) litigants were already involved in the settlement, everyone knows what's going on except for the public," Mr. Ewert said. "There really is no public benefit to sitting on it, other than not looking bad."

In her lawsuit, Ms. Ortiz-Buckley charged that public works supervisor Mr. Henderson subjected her to ongoing verbal sexual harassment. She filed a lawsuit against Mr. Henderson and the town in April 2009, alleging that Mr. Henderson's supervisors did nothing to curb his behavior, and that when she complained, she faced retaliation and was forced out of the police department.

A June 2008 incident in which Mr. Henderson allegedly lunged at her exacerbated her existing back injury, and the town failed to accommodate her disability, she said.

Mr. Henderson was prosecuted for misdemeanor assault and battery stemming from the June 2008 incident, but a jury found him not guilty in July 2009.

Comments

Posted by Candle Lighter, a resident of Atherton: West Atherton
on Jan 5, 2010 at 4:04 pm

An "oversight"? Is anyone really saying that with a straight face?

Back before the parcel tax election I warned everyone that the money for "safety" and "infrastructure" will be put into a melting pot to be used for all sorts of purposes.

The only reason that makes sense to anyone with a grade school education of why there was no announcement about this has to do with the passing of the parcel tax and the hoodwinking of the Atherton electorate.

If paying a settlement to Ortiz was a wise alternative to spending (more) on legal fees, why has the Johns case festered for so long?

This really stinks. From a legal and financial point of view, I think Atherton would have been better off stipulating that she prevailed on the allegations and moving to a short trial on damages.


Posted by question, a resident of Atherton: West Atherton
on Jan 5, 2010 at 4:17 pm

Does anyone know who exactly is giving Pilar Buckley the "GoodBye party" I have heard about--is it the town?--Is it the Atherton Police Officers Association?? Will it be held at Mr. Marsalas house as the disgraced Building Inspectors "Retirement" party was--or will it be held at the Circus Club like Glen Neilson's party. Can anyone explain why this litigant is being honored in this manner on top of, or as a part of, her 230 thousand dollar settlement (with no depositions taken)??????? Will the city manager or city attorney attend??? Is the Almanac invited????


Posted by dirty linen, a resident of Atherton: other
on Jan 7, 2010 at 2:19 am

Could Wynne Furth's days be numbered?

The City Council sure did hang her out to dry on this most recent snafu.


Posted by R.GORDON, a resident of another community
on Jan 7, 2010 at 2:51 pm

This happens daily..........San Mateo Govt. in conveniently forgetful and the most obviously corrupt area which overlooks "deeds" like this, as well as looking the other way when it comes to certain citizens feel like doing anything they want when some "friends" of the county want favors done like ignoring permits to build, add sq.footage, and ignore those who have not been elected into office.
This is a town that could use a good shake up or shake down for all of the favors which are so easily proveable if people just go through the files in Redwood City. The black out pen is used like in Watergate for "special" people.
Some of them got clobbered in the bank scandals and are now being careless in trying to recoup losses.
They also attack those who have more money and power like Steve Jobs who was so great to play their hand and wait it out.
Next, he when he starts building his new house, I think the supervisors and different planning commissions are going to see what a smart man Jobs really is.........revenge is sweet.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jan 9, 2010 at 7:35 pm

Peter Carpenter is a registered user.

What is needed is much more transparency in the Town's appointments and actions and much greater citizen involvement in oversight. In a democracy we get exactly the kind of government that we deserve and given the incredibly small turnout of citizens for Town Council meetings and in parcel tax election I suspect that we are getting exactly what we deserve.

How many citizens do you think will show up for the Town Council's six hour Study Session on Monday?


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