Almanac Online Almanac Online: Atherton: Fired finance director seeks to block investigation report (November 7, 2007)

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News - Wednesday, November 7, 2007

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Atherton: Fired finance director seeks to block investigation report
• Johns says report on him is flawed; he denies allegations.

by Andrea Gemmet

The murky details surrounding the unceremonious firing of Atherton Finance Director John Johns on Oct. 29 might be revealed to the public. Then again, they might not.

Town officials were poised to release this week a private investigator's report on allegations that Mr. Johns created a hostile work environment.

Mr. Johns is seeking a temporary restraining order preventing the release of a redacted version of the report to reporters who filed a public records act request for the document. A hearing is set in San Mateo County Superior Court on Tuesday afternoon, Nov. 6.

"I'm greatly concerned about material misstatements of fact and omissions within the report," Mr. Johns told the Almanac on Friday, Nov. 2. "That's why I retained legal counsel. I'd very much like to depart the town on amicable terms, but I have to look after my family's financial interests and my professional reputation."

Interim City Manager Wende Protzman said she could not comment, other than to say that Mr. Johns no longer works for the town.

Mr. Johns, the town's finance director since 2001, was put on paid administrative leave Aug. 29 after the town received complaints against him, including one from the Atherton Police Department.

Last week, he said he received a letter on Oct. 29 saying that he had been "released" from his employment with the town. The letter did not tell him why he had been fired, Mr. Johns told the Almanac.

He denied the allegations that he created a hostile work environment, and said he himself has been the victim of retaliation over his work to uncover improprieties in the building department and with employee expense accounts, including in the police department.

Sam Goodman, chair of the Atherton Audit Committee, continues to be a staunch supporter of Mr. Johns, calling Mr. John's treatment by the town "a travesty," and pointing to the improvement in Atherton's finances and annual audits during Mr. Johns' tenure as proof.

"The audit committee took a unanimous stand in praise of Mr. Johns' performance over the last six years, and that appraisal hasn't changed," Mr. Goodman told the Almanac.

Mr. Goodman said he believes investigator Mary Topliff was charged with digging up dirt on Mr. Johns, rather than impartially investigating the hostile work environment charges. He said he knew of several members of the audit committee, both past and present, who are willing to contribute to a legal defense fund if Mr. Johns decides to sue the town for violating its whistleblower protection law.

Building department

Mr. Johns conducted a three-phase audit of the Atherton Building Department last year, resulting in a restructuring of that department after the retirement of Building Official Mike Hood. The scrutiny and resulting upheaval generated a great deal of outrage among frequent users of the building department, including Atherton residents, developers and contractors. As a result of Mr. Johns' audits, the City Council implemented a number of reforms and increased the building department's staff.

"I know that there were some hard feelings amongst a number of people who are connected with the town as a result of my Phases I, II and III audits of the building department," Mr. Johns said. "However, I am reluctant to speculate as to the extent that such feelings contributed to my departure."

Police ticket Johns

Besides the situation in the building department, it's clear that there is no love lost between Mr. Johns and the town's police chief, Bob Brennan. The two men have differing versions of an incident at town hall that occurred two days after Mr. Johns was suspended.

Mr. Johns says on Aug. 29 he returned the second of two laptops he had access to, after learning that it had been reported stolen in the police blotter.

"In an elevated voice (Chief Brennan) told me that I did not belong on the premises and that I was to leave immediately," Mr. Johns told the Almanac.

Mr. Johns said that Chief Brennan, in the company of three other police officers, instructed him to get into his car, start the engine, stop the engine, and produce his driver's license. Mr. Johns said he was surprised to learn that his license had expired a month before, a slipup he blames on having forgotten to notify the Department of Motor Vehicles of his change of address.

Chief Brennan said that Mr. Johns had been told in writing that one of the conditions of his suspension was that he was not allowed to return to the town administrative offices. He said he knew Mr. Johns' license had expired due to a routine background check he conducted when Mr. Johns was suspended.

When Mr. Johns reappeared on town property, Chief Brennan said, he instructed Sgt. Eric Grimm to give Mr. Johns a citation when he got back into his car. He said he did not instruct Mr. Johns to start his engine.

"He did it of his own free will," Chief Brennan said. "He made the decision to drive here in a car without a license, and to get into that car."

The police also wrote up charges against Mr. Johns for trespassing, and sent them to the county District Attorney's Office, Chief Brennan said.

"The lesson here is, if you don't have a license, don't drive a car," he said.

The citation is a fix-it ticket, and Mr. Johns said he renewed his license that same day. However, he said, the incident was an unnecessary show of force by police, and that being told to start his car was either entrapment or unlawful search and seizure.

Investigation reports

The report on Mr. Johns by Ms. Topliff, a San Francisco-based attorney who had done previous work for the town, isn't the only investigation that Atherton officials decided to release. Recent judicial decisions have cleared the way for a 2006 investigator's report on former Building Official Mike Hood to be released, said City Attorney Marc Hynes.

Another 2006 report into alleged misconduct by lower-level building department staff will not be released, Mr. Hynes said.

George Camerlengo, Mr. Johns' attorney, is set to appear in court to argue against the release of the report on Mr. Johns.

"We strongly disagree that disclosure of the investigative report is either mandated or permitted under the (public records) act. We believe that any such disclosure will result in irreparable harm to Mr. Johns and impermissibly violate his right to privacy," said Mr. Camerlengo in an e-mail to Atherton officials.

If the report on Mr. Johns is blocked, Mr. Hynes has said he'll seek the judge's guidance on whether to release the report on Mr. Hood.

Comments

Posted by Charles Marsala, a resident of the Atherton: West Atherton neighborhood, on Nov 7, 2007 at 8:43 pm

There is so much information to the events of the past year that the residents of Atherton should know and understand. Information obtained from my Freedom of Information requests should be shared and residents informed.

1. Interim City Manager Wende Protzman has down an amazing job, stepping in to a difficult situation three months ago and thinking clearly how to proceed. She has consulted with knowledgeable specialists in human relations issues, made solid decisions, keep council informed, and acted in the best interest of Atherton.

2. Regarding the Police ticket to John Johns. This is unfortunate. Mr. Johns was placed on leave and advised not to return to Town offices during the investigation. He violated that requirement and was told to leave the premises. However the Police already knew he had an expired driver�s license, and when he started his car, they were required to issue a Fix-it ticket. Had they not done so and had he been involved in an accident on the way home, the Town would have been at fault.

For Mr. Johns to claim a Fix �It Ticket as unlawful search and seizure is an overkill. He drove to town and when he attempted to leave; the police simply did their duty to the Town.

3. The subtitle of this story: �Johns says report on him is flawed; he denies allegations� I am sure if asked Retired Building Official Mike Hood would have denied allegations by John Johns. Mike Cully, Building Department consultant, and Gary Binger, from the Association of Bay Area Governments, who were brought in by City Manager Jim Robinson; would agree with Mr. Hood there were no improprieties, as alleged by Mr. Johns.

4. As a Council Member I attend the many philanthropic activities and events of Atherton Residents. Often I am asked about the high cost of permits and fees. During his tenure as Building Official Mr. Hood did his best to keep fees down, to run on a small a budget as possible, and still provide the best service. He had a reputation in the Peninsula as being tough but fair by taking the time to meet and advise residents in advance of plan changes needed before they spent ten of thousands of dollars with architects designing plans that would not meet Atherton codes and he would later have to reject. I have heard story after story from residents of these experiences with Mr. Hood.

Mr. Hood required something more than most Building Officials- new homes are required to have height and setback independently verified by a licensed civil engineer.

Though all of Mr. Johns� Audits of the Building Department and inspection of 6,600 permit files he did not find any instances of undercharging- all he could come up with was to allege that Mr. Hood should have been charging a wrongful fee increase a week before it went into place.

The recommendations to have increased controls and cross checks in the Building Department will come to residents at a price. This past June�s budget done by Mr. Johns included a large fee increase on some permits to cover the costs of the restructuring needed for greater reports and controls on building permits and fees. Atherton Residents may have been happy with the lower fees and not felt the need for more audit reports on building projects.

5. My Freedom of Information Requests on Mr. Johns� expenses and town cell phone usage show many items that concern me. During the six months the town provided him a cell phone, calls made during working hours were frequently made from outside Atherton. Recently a resident provided a copy of a February 2007 contract for Mr. Johns to do 400 hours consulting for Sutter County.

On his expenses Mr. Johns put an IPOD, a digital camera (when the town already has two), a laser printer and a photo printer. There are meals in restaurants in Menlo Park, and several hundred dollars in copy expenses at a Kinkos in Santa Clara.

There are several hundred dollars in expenses reported as �Fraud� and a new card was issued. It took Mr. Johns months to get the paperwork in to the Credit Card company and he never reported the identify theft to the police, which are fifty feet from his office and have a specialist in Identify Theft. Several of the charges were to web sites that require the user to leave an email address or shipping address. I would think Atherton PD would have located the user given the chance.

It is clear to me, Atherton needs increased controls and cross checks on expense reports.

6. On his resume to obtain the Sutter contract in February 2007, he writes how he implemented a $700,000 Off-Haul fee. He does not say that residents challenged as to weather is was a fee or tax and it was rescinded and repaid by the council.

7. Another Atherton fee increase on Mr. Johns Sutter County Contract resume is that he changed and increased the business license tax for contractors and sub-contractors adding $300,000 in revenue. We have now discovered this could be a wrongful interpretation of State business license fees as he changed it from a one year fee to per job site. Some contractors paid multiple fees for the same year. Did these increases to the residents of Atherton help him gain outside consulting work by adding to his resume?

My appreciation to all Atherton Staff for enduring this period of turmoil and serving the residents of Atherton well as shown by survey last year that 97% of residents are satisfied and 82% are very satisfied with services.

Charles Marsala

Council Member