MINUTES
CITY COUNCIL REGULAR MEETING
CITY OF MONTEREY
Tuesday, October 15, 2024
4:00 PM 7:00 PM
COUNCIL CHAMBER, 580 PACIFIC ST.
MONTEREY, CALIFORNIA
Councilmembers
Present: Barber (arrived at 4:48 p.m.)*, Haffa, Smith, Williamson
Absent: Garcia
* Attended remotely by teleconference pursuant to Gov. Code sec. 54953(f)(2)(A) for just cause
City Staff
Present:
City Manager, Assistant City Manager, City Attorney, Finance Director, Community Development Director, City Clerk, Property Manager, Assistant Police Chief, Planning Manager, Engineering Assistant, General Services Superintendent
***Afternoon Session Agenda ***
CALL TO ORDER
Mayor Williamson called the meeting to order at 4:08 p.m. and explained that Councilmember Barber would be joining the meeting remotely later in the meeting. City Clerk Klein called the roll with Councilmembers Barber and Garcia absent.
PRESENTATIONS
1. Recognition of Defense Language Institute Quarterly Joint Service Awards for Fourth Quarter FY24 (Not a Project Under CEQA per Article 20, Section 15378, and Under General Rule Article 5, Section 15061)
Action: Recognized award recipients
Mayor Williamson presented proclamations to Lance Corporal Keegan Ogorman (U.S. Marine Corps) and Sergeant Trenton Platt (U.S. Marine Corps), who each made brief remarks.
Technical Sergeant Stephanie Battle (U.S. Air Force) was not present but was also honored.
Public comment was received from Steve Lightfoot, who said that foreign entities may be observing meetings like this to glean information about future intelligence agents, and Bryan Rosen, who said that people working for peace should be awarded instead of the military.
GENERAL PUBLIC COMMENTS
Public comment on non-agendized matters was received from Steve Lightfoot and Bryan Rosen.
CONSENT AGENDA
Public comment on the Consent Items was not received.
City Council Minutes October 15, 2024
2 On a motion by Councilmember Haffa, seconded by Councilmember Smith, and carried by the following vote, the City Council approved the CONSENT AGENDA:
AYES: 3 COUNCILMEMBERS: Haffa, Smith, Williamson
NOES: 0 COUNCILMEMBERS: (None)
ABSENT: 2 COUNCILMEMBERS: Barber, Garcia
ABSTAIN: 0 COUNCILMEMBERS: (None)
RECUSED: 0 COUNCILMEMBERS: (None)
Approval of Minutes
2. October 1, 2024 Regular Meeting (Not a project under CEQA per Article 20 Section 15378 and under General Rule Article 5 Section 15061)
Action: Approved (3-0-2, Councilmember Barber and Councilmember Garcia absent) Resolutions
3. Awarding Three Professional Services Agreements in the Amount of $500,000 Each for On-Call Material Testing Professional Services for Projects Within the City of Monterey to: (1) Moore Twining Associates, Inc.; (2) Twining, Inc.; and (3) Construction Testing Services, Inc. ***CIP/NCIP *** (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)
Action: Adopted Resolution Nos. 24-159, 24-160, and 24-161 C.S. (3-0-2, Councilmember Barber and Councilmember Garcia absent)
4. Approve the Purchase of Four Ford Maverick Hybrid Trucks in the Amount of $154,790.68 from Downtown Ford of Sacramento (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: Adopted Resolution No. 24-162 C.S. (3-0-2, Councilmember Barber and Councilmember Garcia absent)
5. Approve the Purchase of Three Ford Police Interceptors in the Amount of $175,584.15 from Folsom Lake Ford, Inc. (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: Adopted Resolution No. 24-163 C.S. (3-0-2, Councilmember Barber and Councilmember Garcia absent)
Other
6. Appoint Agency Negotiators for Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8; Property: 601 Wave Street, Suite 400; Agency Negotiators:
Kimberly Cole and Janna Aldrete; Negotiating Parties: Mark Hastings (Monterey General Store/American Country Classics); Under Negotiation: Price and Terms of Payment for Lease Amendment (Not a Project under CEQA per Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: Appointed real property negotiators Cole and Aldrete (3-0-2, Councilmember Barber and Councilmember Garcia absent)
*** End of Consent Agenda ***
City Council Minutes October 15, 2024
3 PUBLIC APPEARANCE
7. Adopt a Resolution Approving Affordable Housing and Property Disposition Agreement and a Ground Lease between MP Madison Street Associates, L.P. and the City of Monterey for the Properties Located at 587 and 593 Van Buren Street and 424 and 450 Madison Street, Adjacent Parking Lot and Area Behind the Parks and Recreation Administration Building Located at 546 Dutra Street and Authorize the City Manager to Negotiate and Execute All Related Documents (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)
Action: Adopted Resolution No. 24-164 C.S. (3-0-1-1, with Councilmember Barber abstaining, and Councilmember Garcia absent)
Planning Manager Hill, project architects Justin Pauly of Justin Pauly Architects and Paul Davis of Paul Davis Partnership, and Community Development Director Cole jointly gave the staff presentation and answered Councilmembers' questions together with Stephanie Downs of Redwood Public Law.
At 4:48 p.m., Councilmember Barber arrived in the teleconference portion of the meeting and Mayor Williamson noted she would abstain from voting on the matter due to missing the majority of the presentation.
Public comment was received from: Kevin Dayton, of Monterey Peninsula Chamber of Commerce, who expressed enthusiasm for the project; Vanessa Diffenbaugh, of MidPen Housing, who introduced and complimented her teammates and provided an update on the project status including grants and tax credits; Esther Malkin, who described the project as thoughtful and top-notch and urged that people who live and work in Monterey already be given priority for the affordable housing; and Nina Beety, who expressed concern about the proposed density and presumed parking issues.
The Council discussed the matter. Councilmember Barber participated in the discussion although she would abstain from voting. Enthusiastic support was expressed for the project, citing success with the City’s prior housing project completed with MidPen Housing, and what was described as a wonderful location for the project, so near to downtown, schools, and transit. Satisfaction with the proposed design was expressed. It was suggested that the designers improve the view from Pacific Street and Colton Hall lawn to make the new structure blend in as much as possible. It was suggested that the City’s process include being proactive regarding maintenance of the facility. The potential use of the facility by the City, after the termination of the 99 year lease, was discussed. It was expressed that the project was greatly needed and congratulations were given to the City staff, developers, designers, and everyone who had been part of the project. It was stressed that the public had supported the matter broadly and with enthusiasm. It was noted with appreciation that the project team was working hard to get from the Housing Authority of Monterey County the housing vouchers that would be needed because they were a key financing mechanism for the project.
On a motion by Councilmember Haffa, seconded by Councilmember Smith, and carried by the following vote, the City Council adopted Resolution No. 24-164 C.S.:
AYES: 3 COUNCILMEMBERS: Haffa, Smith, Williamson
NOES: 0 COUNCILMEMBERS: (None)
ABSENT: 1 COUNCILMEMBERS: Garcia
ABSTAIN: 1 COUNCILMEMBERS: Barber
RECUSED: 0 COUNCILMEMBERS: (None)
City Council Minutes October 15, 2024
4 TELECONFERENCE NOTICE
Councilmember Barber confirmed that she could hear the meeting proceedings, gave a brief description of the circumstances relating to her need to appear remotely pursuant to the “Just Cause” clause (official city travel), and stated that no person over the age of 18 was present in the room with her during the meeting.
*** Adjourn to Closed Session ***
Public comment was not received on closed session Item 8. The Council adjourned to closed session at 5:31 p.m.
CLOSED SESSION
8. Closed Session Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8
Property: 601 Wave Street, Suite 400
Agency Negotiators: Kimberly Cole and Janna Aldrete
Negotiating Parties: Mark Hastings (Monterey General Store/American Country Classics) Under Negotiation: Price and Terms of Payment for Lease Amendment (Not a Project under CEQA per Article 20, Section 15378 and under General Rule Article 5, Section 15061) Action: On a roll call vote of 4-0-1, with Councilmember Garcia absent, the Council gave confidential direction to its property negotiators
RECESS
The Council recessed at 5:46 p.m.
RECONVENE
The Council reconvened at 7:03 p.m.
*** Evening Session Agenda ***
PLEDGE OF ALLEGIANCE
Councilmember Haffa led the Pledge.
GENERAL PUBLIC COMMENTS CONTINUED
Public comment on non-agendized matters was received from Lorna Moffat and Nina Beety.
ANNOUNCEMENTS FROM CLOSED SESSION
Assistant City Manager Rojanasathira announced that in the matter of Item 8 (listed above), on a roll call vote of 4-0-1, with Councilmember Garcia absent, the Council gave confidential direction to its property negotiators.
PUBLIC APPEARANCE (EVE)
9. Appeal of Jerod Balthrop of Dismissal from the Position of Electrician with the Public Works Department (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)
Action: Heard appeal
City Council Minutes October 15, 2024
5 Thais Alves, of Colantuono, Highsmith & Whatley, P.C. introduced herself as outside legal counsel advising the City Council in the matter of Jerod Balthrop’s termination appeal. She explained that she had been screened off from, and had not communicated with, the Public Works Department or any attorney representing the Public Works Department regarding the matter, and would be solely advising the City Council on the matter. She explained that there had been a stipulation between the parties that the City Council appeal would be based on the administrative record before the arbitrator Andrea Dooley, and that there would be 30 minutes allocated to each side for argument before the City Council, but no additional evidence would be introduced. She said that the attorneys for the Public Works Department and the appellant could choose to allocate a portion of their 30 minutes for rebuttal.
Mayor Williamson asked each of the attorneys to identify how much time they would like for the rebuttals. Garrett Porter, Esq., of Mastagni Holstedt, A.P.C., representing Jerod Balthrop, requested that five of his 30 minutes be reserved for rebuttal. Arcelia Hurtado, Esq., of Sloan, Sakai, Young and Wong, LLP, representing the Public Works Department Director, requested that 10 of her 30 minutes be reserved for rebuttal.
Mayor Williamson asked Ms. Hurtado to begin her oral argument.
Ms. Hurtado began to began to address the Council, with 20 minutes on the clock for her oral argument on behalf of her client, the Public Works Department. She introduced herself and stated that because the Council had been provided the entire administrative record and had reviewed it, she would not explain every fact in detail. She said that she wished to use her time to highlight some of the procedural history and facts at issue, and to reserve time at the end for any questions. She said that she had represented the City at the arbitration hearing on April 24, 2024, as well as the appeal before the City Manager on August 6, 2024, and that the union had opted for the non-binding advisory arbitration procedure outlined in the labor group's memorandum of understanding ("MOU"). She said that after the arbitration hearing, the arbitrator had found that the City had had just cause to discipline Mr. Balthrop for discourteous treatment of the public or other employees during the course of employment, in violation of City policy, but that she had also found that his conduct, while undeniably rude and inappropriate, did not rise to the level of "severe and egregious," so as to violate City policy, therefore finding that the City had not had just cause to terminate him for this single incident. She said that the arbitrator had also found that Mr. Balthrop had not been dishonest during the investigation, but rather that he had failed to recall details of the incident and that therefore, the City had not had just cause to terminate him for dishonesty. She said that the arbitrator had not issued a ruling on the other bases for termination, which were “willful disobedience and insubordination,” “failure to perform work in a satisfactory manner,” or “inefficiency or inexcusable neglect of duty, i.e. failure to perform duties required by the employee's position.” She said that finally, the arbitrator had found that the appropriate level of discipline would have been a three-day suspension.
Ms. Hurtado went on, stating that per the dispute resolution procedures outlined in the MOU, the City Manager had heard the appeal and upheld the termination. She went through the findings of the City Manager during that appeal. She said that City Manager Uslar had found that Mr. Balthrop had made a lewd comment and gesture that two witnesses who were present had viewed as offensive, sexually harassing, and unprofessional. She said that City Manager Uslar had also found that Mr. Balthrop had indeed been dishonest during the investigative interview, and that Mr. Balthrop had not just had a failure of recollection, and that this violated multiple City policies including Monterey City Code section 25-14.02, subsection (b) (willful disobedience and insubordination), subsection (d) (failure to perform work in a satisfactory manner, subsection (e) (inefficiency or inexcusable neglect of duty and failure to the public or City Council Minutes October 15, 2024
6 other employees within the scope of employment), subsection (w) (willful violation of rules, regulations, or policies which may be prescribed by the department or City, including violation of City Code section 25-3.03, and subsection (h) (dishonesty involving employment). She stated that, finally, City Manager Uslar had found that the arbitrator had exceeded her authority in suggesting the appropriate level of discipline, given that the MOU did not authorize the arbitrator to replace the City’s judgment for her own in regard to the level of discipline, but rather her role had been limited to making findings of fact. She said that City Manager Uslar had further found that a three-day suspension was not appropriate in light of the serious and egregious nature of the conduct at issue, therefore termination was the appropriate level of discipline and was reasonably related to the nature of the conduct. She said that City Manager Uslar had found that Mr. Balthrop’s long-standing tenure as a City employee did not mitigate his conduct, especially in light of the severity and egregiousness of his actions, the numerous sexual harassment courses that he had taken as part of his employment which ultimately failed to prevent his highly problematic behavior, and then his failure to take responsibility for his actions and his continued dishonesty during and after the investigation.
Ms. Hurtado continued, stating that Mr. Balthrop had appealed the City Manager's determination to the City Council, which was the reason for the hearing at this meeting. She urged the Mayor and Councilmembers to exercise their common sense and the discretion granted to the Council under the MOU, and to uphold the Public Works Director's determination and the City Manager's determination that there had been just cause to terminate Mr. Balthrop for his abusive conduct toward the public while on duty and in uniform at the Presidio of Monterey in December of 2022, because that conduct was severe and egregious and because his conduct violated multiple City of Monterey policies. She reminded the Council that the preponderance of the evidence was the standard of proof that the Council must find, which she said meant “more likely than not.” She offered to use the remainder of her 20 minutes (14 minutes and 10 seconds remaining) to answer any questions for the Council.
Mayor Williamson asked Mr. Porter to begin his oral argument.
Mr. Porter began to address the Council, with 25 minutes on the clock for his oral argument on behalf of his client Jerod Balthrop. He introduced himself and stated that he would explain their position, the union's position, and Mr. Balthrop’s position, and would call Mr. Balthrop to explain a bit on his own behalf to the Council his position, his understanding, his commitment to the City, and his reflection on the incident in question from December 2022. He said that the purpose of the appeal was for the City Council to have a fair and full scope in considering the entire procedural history and all the different factors of this specific matter. He said that unfortunately, it was the union's position that the City Manager's decision had been solely based on, or primarily based on, the Skelly decision rather than the evidentiary hearing held by the arbitrator who was selected by both parties. He said that the City and the union had both been able to review all of the credentials, evaluations, and decisions made by arbitrator Dooley so that a fair and equitable evidentiary hearing could be held. He said that during an evidentiary hearing is when the witness' credibility is evaluated, not after the fact when the City Manager reviews a transcript to determine whether the accused is credible or honest when saying he couldn't remember something. He said that the City Manager's decision and recommendation were unfortunately consistent with "his anti-employee" [sic] and an alleged continued pattern of pushing out long-term employees who were nearing retirement, which he said related to Mr.
Balthrop in this case. He said that it was the union's position and understanding that since Mr.
Uslar’s starting with the City, more than 150 positions or employees from the General Employees of Monterey ("GEM") union had been eliminated. He said that with these different considerations in mind, he wanted to give Mr. Balthrop the opportunity to express himself and for the Mayor and Councilmembers to each evaluate Mr. Balthrop’s credibility, not relying on a transcript or on the opinion of someone else who made judgments on Mr. Balthrop’s credibility City Council Minutes October 15, 2024
7 and sincerity without even speaking to Mr. Balthrop. He asked the Council to evaluate whether or not Mr. Balthrop was an actual risk of making a rude comment or offending somebody again.
He invited Mr. Balthrop to the podium to articulate and talk about his employment history and his reflections on the specific incident.
Mr. Balthrop addressed the Council, introducing himself as an electrician for the City of Monterey for 23 and a half years. He said that during that time he had received about eight awards for work excellence from colonels of the Army base. He said he had received an award for employee of the year in 2005 and awards for quality work control for two years in 2005 and 2011. He said that he had received an award from the Colonel of the Army base for saving a 65-year-old lady from a burning car and that he had pulled her out and another employee had put the fire out. He said he had tried to be an exceptional employee for the City of Monterey through his time and planned on working his whole career for the City. He said that all of his evaluations had been A+, and that he had never received a bad evaluation in all of his years at the City. He said that on the date of the incident in question, he had made the remark which he said he felt bad about and said he should not have done. He said that he had been truthful when asked, that he had told Mr. Rose that he did say it after he had remembered what he had said. He said that he had been called in seven months after the event so it had taken him a minute to recall exactly what had happened. He said that he had been angry at the time. He said that he had not done the gesture, and that he had said he did not do it and nobody in the City believed him. He said that he had gone so far as to talk to his doctor and get a letter stating that he was not able to do that gesture, and asserted that due to his arm length and stomach, having been 20 pounds heavier at the time, he physically could not have done the gesture standing up. He said that his letter regarding this had been disregarded. He said that he had been as honest as he could throughout the whole process and that he felt that what he had done was wrong and he was very sorry, and stated that if he could apologize to the lady and gentleman who were there he would. He asserted that it was just an isolated small incident, and reiterated that he felt bad about it and hoped the City Council would overlook it. He said that the incident had been out of character for him as a good employee, that he was not like that, and that a lot of people he had worked with through the City knew how he was and that he had a good work ethic. He reiterated that he had been out of character in the incident and was sorry.
Mr. Porter returned to the podium and continued his oral argument, and said he would touch on what Mr. Balthrop had discussed and also would briefly go through the procedural history. He said that he knew the Council had the expansive administrative record. He explained that the incident in question had occurred in December of 2022. He explained that Mr. Balthrop had gone into the Subway restaurant through the employee entrance door, and when addressed or confronted about entering through the door, had made a comment stating that “[the supervisor who was prohibiting him from doing that] can suck it." Mr. Porter stated that this had been an offhand, rude, and embarrassing comment, as he said Mr. Balthrop had articulated. He stated that Mr. Balthrop understood that the people who heard it were embarrassed and offended. He said that Mr. Balthrop took accountability for that. Mr. Porter asserted, however, that when reviewing Mr. Balthrop’s entire 23-and-a-half-year history with the City, there had been no other comments, incidents, discipline, or investigations. He said that, as Mr. Balthrop stated, this had been an isolated incident. He said that there was no evidence or rationale showing that Mr.
Balthrop was beyond hope, or that he was a problem or would have an issue with reoccurrence.
He said that they were not minimizing the impact that the comment might have had on the people who witnessed it, and were not saying that the witnesses should not have been offended, or that it was not a big deal, but that he did think it was important to take into consideration that the behavior “surmounted” [sic] to discourteous treatment, not abuse, bullying, a pattern of behavior, or some kind of inequivocal horrific action or horrific comment.
He said that it had been an offhanded comment that one might hear at a middle school playground.
City Council Minutes October 15, 2024
8 Mr. Porter continued, stating that after the incident in December of 2022, the investigation had occurred months later and Mr. Balthrop had been interviewed. He said that during the interview, there had been some question about whether there was some kind of gesture or movement in conjunction with the comment that Mr. Balthrop had made. He said that Mr. Balthrop had not been able to recall making that gesture. He said that Mr. Rose, the investigator, unfortunately had misquoted witnesses Ms. Fraide and Mr. Sanchez. He said that Mr. Sanchez, who he said had been standing by the door behind Mr. Balthrop and had not been able to see Mr. Balthrop’s front, only his back, was the one who had articulated that Mr. Balthrop had made this gesture, which was motioning toward his lower pelvic area. He asserted that Ms. Fraide had said that Mr. Balthrop had made some kind of movement with his hand toward his knee. He said that Mr.
Rose and City Manager Uslar had said that these were consistent statements, that Mr.
Balthrop’s saying he did not remember making a gesture must be a lie and that he was somehow falsifying or trying to minimize his actions. He said that this was not a reasonable conclusion to make. He said that Mr. Balthrop was an individual who admitted he could have done a gesture, that he commonly brushed against his knee or slapped his leg, “for whatever reason." But he said that this was a discrepancy that had been established and clarified at the evidentiary hearing with the arbitrator, which he said had been ignored by City Manager Uslar at the City Manager appeal step.
Mr. Porter went on, stating that after the investigation, which he believed was in March of 2023, there had been a Skelly hearing with the Public Works Director in November of 2023. He said that this was in the administrative record. He said that after this, another appeal step was the non-binding arbitration, and that while the opposing counsel for Public Works was correct and the union agreed that the arbitration was non-binding, it had been a full evidentiary hearing where credibility was assessed and the City and union had had an opportunity to cross examine and vigorously present evidence, rebut evidence, refute and admonish in all sorts of different ways. He said that this had been the City’s opportunity to determine whether Mr. Balthrop was credible or dishonest. He said that after opposing counsel had cross-examined Mr. Balthrop, a neutral third-party arbitrator, whom he reiterated had been mutually selected by both sides based on her credentials, had determined that Mr. Balthrop had not been dishonest. He said that as Mr. Balthrop had stated to the Council at this meeting, this was an investigation about an incident about which Mr. Balthrop had not thought much at the time. He said that Mr. Balthrop had not thought it was offensive at the time. He said that after Mr. Balthrop had remembered it, reflected on it, and gone through the whole process, he had realized it had been wrong and offensive and had taken accountability. He said that it would not happen again. He said that next, the appeal to the City Manager had taken place on August 6th, at which he stated that it was the union's position that City Manager Uslar had ignored the evidentiary record and instead relied on the investigation report of Mr. Rose. He said that Mr. Rose had been cross-examined at the arbitration and had admitted that there were inconsistencies between the two witnesses, upon whom he had relied and whom he had described as consistent in his report, and that it was contrary to Mr. Balthrop’s recollection of the gesture.
Mr. Porter continued, stating that among the main considerations that he wished to present to the City Council, he wanted to bring to their attention the concept of progressive discipline. He said he understood that the Mayor and Councilmembers had experience and understood the whole appeal process and discipline. He said that the opposing counsel and the City had been arguing that training replaced or supplanted progressive discipline, and that because Mr.
Balthrop had participated in the anti-harassment anti-bullying training that was mandatory for every employee, he was somehow not entitled to progressive discipline. He said that he was not trying to disvalue the efforts of training, which he acknowledged was important and equipped employees appropriately, but he asserted that training did not replace progressive discipline. He said that as Mr. Balthrop had stated and as was reflected in the administrative City Council Minutes October 15, 2024
9 record, Mr. Balthrop had never received prior discipline, a write-up, or a negative evaluation.
And he reiterated his assertion that the City was leaning on trainings Mr. Balthrop had received, saying that they were equivalent to discipline. He said that because Mr. Balthrop had participated in the training, it had been "strike one, strike two, strike three" when Mr. Balthrop had made some comment that was offensive—that it had been the City’s perspective that Mr.
Balthrop should have known better, and that the incident had been made to be his last chance.
He said that these were not two of the same things. He said that Mr. Balthrop could take accountability for what he did, and could improve, which he said was demonstrated by his nearly quarter-century with the City in which he stated Mr. Balthrop had never had any issues like this. He said that Mr. Balthrop, the union, and he as Mr. Balthrop’s attorney, all were confident that moving forward Mr. Balthrop would not have any issues.
Mr. Porter went on, stating that the arbitrator had recommended a three-day suspension, which he said the union did not dispute. He said that they felt it was a fair and appropriate level of discipline to address the issue. He said that a three-day suspension was more than appropriate for an employee with no discipline in his entire past who had made a comment, no matter how Mr. Balthrop might have felt about the comment as he made it, which he said could be seen as offensive or could be embarrassing or offensive to individuals who heard it. He said that in addition to Mr. Balthrop’s remorse and recognition of the incident in question, he wanted to highlight what he said was Mr. Balthrop’s exemplary employee record. He asserted that Mr.
Balthrop’s commitment to the City was nearly unparalleled. He said that Mr. Balthrop had worked through storms, changing stoplights that were blowing around in the wind. He said that Mr. Balthrop had worked on numerous projects and had put his whole heart and career into the City, and now based on one incident, all of this history was being discredited and disregarded.
He described this as an opportunity for the Mayor and Councilmembers to recognize an employee's commitment to the City and to see it as an opportunity for change, and as an opportunity for Mr. Balthrop to reaffirm his commitment and to continue pouring his life into the City the way he said Mr. Balthrop had done for most of his life. He said that with all of these things taken into consideration, he asked that the City Council reduce the discipline from termination to the three-day suspension that he said the arbitrator had recommended. He said that the arbitrator, while her decision had been non-binding, was a neutral party who was more experienced than anyone present in evaluating the evidence and what was appropriate as far as discipline. He said that he did not ask the City to disregard its own discretion, and stated that it was important for each member of the Council to evaluate the evidence presented in the evidentiary record and the administrative packet. He said that Mr. Balthrop admitted and took accountability for his discourteous behavior, but that there was just not evidence that he had been dishonest or had violated the abuse and bullying policy. He asked that Mr. Balthrop be reinstated with back pay, and that the Council make things right and to consider all of the evidence as he said should have been done at each step of the process. He offered to use the remainder of his 25 minutes (8 minutes remaining) to answer any questions for the Council.
Ms. Alves asked Mr. Porter, non-timed, whether his comments regarding City Manager Uslar’s relationship with the union were in the evidentiary record. Mr. Porter admitted that his assertions were not in the evidentiary record, and on request from Ms. Alves, he agreed to strike the comments from the Council’s consideration.
Mayor Williamson asked Ms. Hurtado to make her rebuttal.
Ms. Hurtado began her rebuttal by reminding the Council that while the Public Works Department had not objected to Mr. Balthrop providing public comment or testifying during the argument, those remarks were not part of the record. She stated that additional public comment would be received from City Manager Uslar regarding some of Mr. Porter’s arguments. She said that the fact was that City Manager Uslar had considered all of the record, and all of the City Council Minutes October 15, 2024
10 evidence. She said that while Mr. Porter had argued that City Manager Uslar had not had the benefit of hearing directly from Mr. Balthrop as the arbitrator had, Mr. Porter could have brought Mr. Balthrop to provide comment but had chosen not to do that. She said that the City Manager's decision had not been based on the Skelly hearing, but was based on the record, which he had fully considered. She said that City Manager Uslar had also used his common sense and reviewed the recordings of Mr. Balthrop’s investigative interview, where she said it was very clear that Mr. Balthrop had known that he was there to talk with Mr. Rose about the incident at Subway, because Mr. Rose had said so about five minutes into the recorded interview. She said that it was also very clear from the recording that Mr. Balthrop had gone onto the offensive because he had known that he was in trouble and needed to explain and to come up with some explanation for why two independent unbiased witnesses would say that he had made this lewd gesture toward his groin while he said, "tell Aysel she can suck it." She reiterated that this was what Mr. Balthrop had done, and that this was the conduct at issue, which she asserted was egregious and severe.
Ms. Hurtado continued, stating that it did not have to be a pattern of conduct, as she said Mr.
Porter had alleged, but that under the City Code, one single incident was sufficient to impose up to termination, and that this was what the City Manager had found. She said that the arbitrator's logic had been flawed in not finding the behavior severe and egregious, and she said that two people had witnessed it: Leslie Fraide, at the time 19 years old, who she said had been very offended by it and felt it inappropriate and unprofessional, and Lieutenant Jesus Sanchez, who she said also had felt the same way. She said that these two people did not believe the behavior was appropriate in the workplace and had felt it was severe and egregious. She asked what motive these two witnesses would have to lie. She reminded the Council that Mr. Balthrop had had the opportunity to correct anything that he felt he had not remembered at the time of his investigative interview, but had never done so, had never contacted Mr. Rose to add or correct anything he had said. She said that instead, Mr. Balthrop had come before the Council at this meeting and continued to deny and come up with excuses why it was not possible that he had made the gesture toward his crotch. She said that using common sense, when listening to the recorded and investigative interview that was part of the record, it was very clear that Mr.
Balthrop was trying to make up crazy conspiracy theories for why two people would make up something like this that Mr. Balthrop said he had not done. She said that it had not just been a rude comment, rather it was severe and egregious and was not anything any City of Monterey employee should be allowed to do and remain on the job.
Ms. Hurtado went on, saying that Mr. Balthrop’s awards were not relevant to the matter and that the arbitrator had found the same, which she noted was part of the record. She said that Mr.
Balthrop’s conduct was at issue. She said that no evaluation had been done for Mr. Balthrop in several years and noted that she believed the most recent evaluation had been completed in 2015. And she said that again, the arbitrator had found that these things were not relevant to her determination, which was also part of the record, and that the City Manager had also found it not relevant. She stated that it was not mitigating that Mr. Balthrop had been with the City for many years. She said that what was relevant, and what the Council should focus on, was Mr.
Balthrop’s conduct. She said that Mr. Balthrop had stated at this meeting and prior that he was sorry, but she stated that he had never apologized, or tried to apologize, to any of the people who had had to witness his unprofessional conduct. She asserted that Mr. Balthrop was sorry now because he had lost his job. She noted that Mr. Balthrop still maintained that he had not done the gesture, and said that again it was another excuse and another example of Mr.
Balthrop not taking responsibility for his actions. She said that when Mr. Balthrop said that he did not do the gesture, he was in effect telling the Council that Leslie Fraide and Lt. Sanchez had lied—was calling them liars—and that he was therefore not sorry because he was calling them liars and saying that he was somehow the victim in the matter. She noted that Mr.
Balthrop had even made a comment to Mr. Rose that Leslie Fraide could not have been City Council Minutes October 15, 2024
11 offended by his comment and gesture because she had a neck tattoo and because he stated she looked like she had come out of prison. She asserted that this was not a comment that would come from someone who was sorry for their actions, or who deserved to work for the City of Monterey under these circumstances. She noted that Mr. Balthrop’s legal counsel had said that this behavior was not a pattern for Mr. Balthrop, and she reiterated to the Council that a single incident was sufficient if found to be severe and egregious. She stressed that the City Manager and witnesses Ms. Fraide and Lt. Sanchez had found the behavior to be severe and egregious, and asked the Council to uphold the determination of the City Manager and of Mr.
Rose, the attorney investigator who she said had conducted a very thorough investigation. She said that the Council had all of the materials upon which City Manager Uslar had relied, and asked that the Council uphold the discipline that this conduct deserved, which she reiterated was termination. She concluded her rebuttal, asking City Manager Uslar to provide comment during the public comment portion of the proceeding.
Mayor Williamson asked Mr. Porter to make his rebuttal.
Mr. Porter began his rebuttal by countering what he said was opposing counsel's statement that Mr. Balthrop’s evaluations should not be considered because the last one issued to him by the City, according to the City’s discretion and his supervisor's discretion, was in 2013. He said that Mr. Balthrop had not been in charge of when he received evaluations, but that when he had received evaluations they were always stellar. He said that in this rebuttal he wanted mostly to focus on the subject of the purpose of discipline. He said that Ms. Hurtado, based on her wording, had wrongfully asserted that discipline should be punitive—that because Mr. Balthrop had done something, he must pay. He said that Ms. Hurtado had said that Mr. Balthrop could not be an employee because he had made this egregious comment. He said that, on the contrary, case law was clear that discipline was supposed to be corrective. He said that it was the Council’s position to evaluate what would be the corrective and appropriate level of discipline to address this issue and that there were numerous levels of discipline within the City’s discretion. He said that throughout the process, however, whenever the City had had the opportunity to evaluate and determine what level of discretion [sic] should be used, they had chosen the maximum level of discipline. He noted that this was what the Public Works Director and the City Manager had both recommended. He stated that, however, the third-party arbitrator, who he said had the insight and perspective of seeing numerous different public employers and other types of employers, had determined that a three-day suspension would be appopriate. He said that in this situation, Mr. Balthrop had articulated both at this meeting and during the evidentiary hearing on the record that he took full responsibility for his actions and that he could not recall making a gesture in conjunction with his rude comment. He said that Ms. Hurtado had wrongfully stated that Mr. Balthrop had called Ms. Fraide and Mr. Sanchez liars during the evidentiary record of the arbitration. He said that Ms. Hurtado had asked Mr.
Balthrop this very question: Were the witnesses lying? He said that in repsonse Mr. Balthrop had said he did not know, that all he remembered was what he remembered, and that he could not testify to something about what someone else was thinking or what someone else recalled, if it was an incident that he himself could not recall.
Mr. Porter continued, stating that Ms. Hurtado had also said that in the evidentiary record Ms.
Fraide, to whom the comment in question had been made, had affirmed that the comment was severe and egregious. He asserted that Ms. Fraide had not said that, and had instead said that the comment was embarrassing and that she had interpreted it to be a dirty comment. He agreed that both of those were fair assessments but stressed that it was inaccurate and dishonest to say that the witnesses had affirmed the City’s vocabulary as far as the requirements of the conduct being severe and egregious enough to be a one-off incident deserving of termination. With all of this in mind, he asked the Mayor and Councilmembers to use their discretion and common sense in evaluating the appeal. He reiterated that Mr. Balthrop City Council Minutes October 15, 2024
12 had been with the department for most of his life and that it was unfair for Mr. Balthrop to be terminated based on one comment where the recipient of the comment said she felt embarrassed, or that she interpreted the comment to be dirty. He said that this was ultimately inconsistent with the City’s progressive discipline policy, with the goals of the City, with the position of being pro-employee and pro-worker, and with valuing and trusting its employees and correcting them when they made mistakes. He said that Mr. Balthrop had articulated that he had made a mistake on one day in December of 2022, which was one day of his 23-and-a-halfyear career. He reiterated that this had not been severe and egregious conduct, that Mr.
Balthrop took accountability and had assured the Council that it would not happen again. He said that all of this mattered, and that Mr. Balthrop’s employment history mattered because the City’s interest should be in correcting the behavior. He concluded his rebuttal, reiterating that a three-day suspension was more than appropirate to correct the behavior and that a termination was excessive and inappropriate.
The Council determined to ask questions of the attorneys after a short recess. The Council recessed at 7:50 p.m. and reconvened at 7:56 p.m.
Mayor Williamson noted that the Council had just heard the oral arguments and rebuttals from attorneys on both sides of the matter and stated that the Council could ask questions of both parties.
The Council asked Ms. Hurtado to provide the legal definition of "severe and egregious," in response to which Ms. Hurtado referred the Council to the City Code and then reviewed the City Code to find the section number. City Clerk Klein suggested that the section in question was Section 25-3.03, and Ms. Hurtado directed the Council to Section 25-3.03, the Harassment/ Discrimination/Retaliation/Abusive Conduct/Bullying Policy. She said that at the beginning of this City policy was the explanation for why the policy existed, which she said was to prevent exactly this type of behavior in the workplace, and said that under subsection (c), the policy defined Abusive Conduct/Bullying as "conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests." She said that as regards the conduct of an employee in the workplace with malice, Mr. Balthrop had had malice toward Aysel Gan. She stated that Mr. Balthrop did not like Ms. Gan, and had testified extensively about the reasons he did not like Ms. Gan. She said that the conduct, the comment that "Aysel can suck it" while gesturing to his genital area, had been done with malice that and a reasonable person, or in this case, two reasonable people, had found it hostile, offensive, and unrelated to anything that had to do with anything that the City could assert was a legitimate business interest. She said that the conduct had had nothing to do with Mr. Balthrop’s work there. She noted that the code section provided that "abusive conduct may include repeated infliction of verbal abuse... verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating" and that it went on to say that "a single act shall not constitute abusive conduct, unless especially severe and egregious."
The Council asked Ms. Hurtado how Mr. Balthrop’s conduct rose to the level of “severe and egregious,” rather than rude or discourteous. Ms. Hurtado answered, noting that the same code section provided examples of abusive conduct or bullying, such as under subsection (c) which provided that "gestures, such as nonverbal, threatening or insulting movements or excessive staring," and that another subsection provided examples of abusive and offensive remarks. She reiterated that this was a situation where one would have to use common sense to determine what was egregious and what was severe. She said that Lt. Sanchez had stated he would not want his daughter to be subjected to Mr. Balthrop’s conduct, that it was inappropriate in the workplace and that was why he had felt the need to step in and help Ms. Fraide, who was at the time 19 years old and was so surprised she was at a loss for what to do. She said that for Ms.
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13 Fraide it was not an everyday encounter but was completely out of the ordinary, completely inappropriate, severe, and egregious. She asserted that she knew that the Council would not want anyone to be exposed to this type of conduct, particularly when representing the City of Monterey. She said that if a Counclmember were to do something like this, it would be considered severe and egregious. She said that if anybody working for the City were to do something like this, it would be severe and egregious. She asked the Council whether they would want to be exposed to somebody conducting himself in this manner in the public, during work hours in his work uniform, and stated she did not believe they would. She said that it was not just a rude comment, but a gesture combined with a lewd comment. She reiterated that it had been in front of two people who did not deserve to be treated in this way. She stressed that the Council had to set the standard for the City’s employees, and that the Department did not want this to be the standard, that an employee could do something like this and expect to continue working for the City. She reiterated that one would use common sense in making the determination.
The Council stated that the examples of abusive conduct or bullying did not necessarily speak directly to the question regarding "severe and egregious," stating that those examples seemed to define abusive conduct or bullying overall, but not specifically a single act that would rise to the level of severe and egregious. In response, Ms. Hurtado noted that the City Code did not define that, and that statutes or other legal language that do not define something more explicitly can instead provide examples. She said that the code cannot say what is particularly severe and egregious because one is expected to use one’s common sense, life, experience, background, and assessment, in making the determination, as she noted the arbitrator and the City Manager had done and as the Mayor and Councilmembers were called upon to do. She said that the Council, in judging whether something was severe and egregious, would not only need to use those tools that they all had as part of their experiences as people, but should remember that the people who had experienced and been subjected to the conduct directly, were offended. She reiterated that Lt. Sanchez had felt it important enough to report to Mr.
Balthrop’s supervisor. She noted that Mr. Balthrop’s supervisor was present at the meeting and could speak to how Ms. Fraide had reacted. She stated that Ms. Fraide had been offended and very, very upset about the incident, had not known what to do, and had never experienced anything like it in the workplace. She reiterated that Ms. Fraide had been only 19 years old. She said that Lt. Sanchez had filed a written complaint, followed up, and taken the time to come to the arbitration to explain to the arbitrator why he felt it was so severe and egregious. She reiterated that Ms. Fraide had been offended, did not know what to do, and did not feel it was appropriate. She stated that of course it was not appropriate, that nobody would find it appropriate in the workplace, and that even Mr. Balthrop admitted that he should not have said it. She noted that Mr. Balthrop would not admit to the gesture and continued to minimize his conduct, but that even he admitted that it was severe and he should not have said it, and that it was egregious for him to have done so. She stated that it was not rocket science but just common sense. She said that the Council could look to the code to guide them, but also needed to apply the code section, the language, and their common sense and experience to the facts of the case, and needed to find that there was just cause to terminate Mr. Balthrop based on all of this and on his dishonesty. She reminded the Council that Mr. Balthrop was terminated not only for violating this one code section relating to severe and egregious conduct, but also for all the other code sections and for dishonesty during the investigative process. She said that any one of Mr. Balthrop’s code violations was sufficient to justify his termination. She reiterated that dishonesty had been a particularly important one, because Public Works Director Renny had found, and had testified at the arbitration that she found, that termination was the only appropriate discipline because Mr. Balthrop worked at the Presidio, a secure military facility, where employees should be trustworthy. She said that Mr. Balthrop had shown himself not to be trustworthy based on the fact that he had lied to the investigator and to the arbitrator. She said that he had lied throughout the investigation and the whole process, and had lied to the City Council Minutes October 15, 2024
14 Council at this meeting. She said that Public Works Director Renny had found that Mr.
Balthrop’s dishonesty and failure to take responsibility, along with all the other violations of the Monterey City Code, were sufficient to terminate him.
The Council asked Ms. Hurtado to address the allegation that the City had supplanted progressive discipline with training, or that if an employee had been trained in something which they then violated, that the training would preclude progressive discipline and advance the incident to punitive discipline. Ms. Hurtado said that the City’s position was not that progressive discipline was inappropriate in this case because Mr. Balthrop had received training. She said that what had been presented to the arbitrator was that Mr. Balthrop had received multiple sexual harassment trainings through the course of his employment, and she said that the arbitrator had considered that fact. She said that the City did not hold the position that anytime an employee has received training and then commits an offense they should be terminated, but she pointed to the context, stating that Mr. Balthrop should have known better and that progressive discipline would not have been effective in this situation. She said she believed that Mr. Balthrop had completed six or more courses of sexual harassment training and asked what one more training would have done. She said that this was the context in which the evidence had been presented, and that clearly the trainings Mr. Balthrop had completed had had no effect and had not prevented the abusive behavior in question. She said that this was the context in which Public Works Director Renny had felt that termination was appropriate, along with other factors which she said included dishonesty, failure to take responsibility, and the severity and egregiousness of the conduct.
The Council asked Ms. Hurtado to explain in what appropriate or proper scenario Mr. Balthrop could have apologized to the people who had witnessed his behavior, and whether such an action would have been considered witness tampering or tampering with an investigation. Ms.
Hurtado responded that Mr. Balthrop had been saying he was sorry for the comment, not for the gesture but for the comment, and could have very easily contacted the City by going through Ms. Hurtado, City Attorney Davi, or City Manager Uslar. She said that Mr. Balthrop could have written a letter of apology without having to contact Ms. Fraide directly. She said that if she sincerely wanted to apologize to someone, she would find a way to convey that, not necessarily in person. She asked: why not write a letter making a genuine gesture of remorse, apologizing for putting the witnesses in that position and making the witnesses feel uncomfortable and harassed, and making the witnesses feel that he was unprofessional? She said that, instead, Mr. Balthrop had gone on the offensive and proceeded to call the witnesses liars, and that to this day Mr. Balthrop was still calling them liars. She said that this was not a sincere apology.
The Council asked Ms. Hurtado to address the gesture as opposed to the comment, specifically regarding how important the gesture specifically had been in the determination that Mr.
Balthrop’s conduct had risen to the level of severe and egregious, and asked whether Ms.
Hurtado agreed with Mr. Porter that Lt. Sanchez could not have seen the gesture based on his physical position in the scenario. Ms. Hurtado answered that the conduct consisted of both the gesture and the comment. She reiterated that two witnesses had said that they happened at the same time. She said that the comment alone would still be egregious and severe whether or not it was made with the gesture, but she reasserted that Mr. Balthrop had done both and that that was what the two witnesses saw. She said that the arbitrator had found that Lt. Sanchez was credible when he said he saw the gesture and heard the comment. She stressed that Mr. Porter wanted to argue that the arbitrator had been in the best position to judge the facts, and she repeated that the arbitrator had made a finding of fact that Lt. Sanchez was credible when he said he saw the gesture and heard the comment, and that City Manager Uslar had relied upon this in finding that that is what had happened. She urged the Council not to separate the gesture and the comment, stating that, despite Mr. Balthrop’s denials, there was plenty of evidentiary record that both the gesture and comment had happened. She reiterated that Ms.
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15 Fraide had seen and heard it, and that Lt. Sanchez had seen and heard it, and that they had no reason to lie. She concluded that Mr. Balthrop was the one being dishonest.
The Council said that Mr. Balthrop’s comment was of a serious nature and was offensive and requested that Ms. Hurtado further clarify regarding how that one comment by Mr. Balthrop would consitute failure to perform his duties, inefficiency, and willful insubordination. In response, Ms. Hurtado said that the arbitrator had made no finding about those violations, even though evidence had been presented to her about those violations. Ms. Hurtado said she couldn't say why there had not been findings made, other than perhaps oversight or the arbitrator having not been careful enough in making her determination. Ms. Hurtado said that Mr. Balthrop had been found to have made these violations because he had disagreed with what the manager of the Subway restaurant had asked him to do. She explained that Ms.
Fraide had been asking him not to walk through the rear door, because Ms. Gan had told her not to allow people to walk through the back. Ms. Hurtado explained that this was violation of policies and procedures that Mr. Balthrop should have followed, and stated that instead he should have said, as an employee, that of course he would enter the Subway through the front entrance. She said that because Mr. Balthrop chose willfully to do what he wanted to do and ignored valid requests from the manager of the Subway, both Ms. Fraide and Ms. Gan, it had been an inexcusible neglect of duty as well as willful violation of rules, regulations, and policies, and that it further constituted willful disobedience and insubordination. She explained that it was not in the code that instructions had to come from a boss for these violations to apply.
The Council asked Mr. Porter to address Mr. Balthrop’s comment about Ms. Fraide having a tattoo and looking like a prisoner, as well as his unwillingness, for an hour and 20 minutes during the interview, to take responsibility for his inappropriate behavior. Mr. Porter said that employees who have never been interviewed or interrogated before will often feel nervous in an investigation setting and will often be scatterbrained and not articulate things in the way he said they probably should. He said that in this specific situation, Mr. Balthrop had been harkening back to an incident that he thought was innocuous and that did not stand out in his mind. He stated that Mr. Balthrop did not understand at the time when the incident was unfolding that Ms.
Fraide had been offended by his behavior, or that Mr. Sanchez had been offended on Ms.
Fraide's behalf or on behalf of his daughter who was not there. He said that it was his position that Mr. Balthrop just spoke with his gut at that particular meeting, and had been trying to speculate about something he did not recollect about how it could have occurred. He said that Mr. Balthrop speculating about one thing or another was not the same as testifying as to the facts of what had happened. He stated that Mr. Balthrop had been guessing about what had happened, and based on someone's appearance how they might have felt. He said that those things were not fair or good to do all the time, but that in a situation when Mr. Balthrop was nervous being interrogated by someone who had just articulated that he could be terminated depending on the answers to the questions, Mr. Balthrop had been scatterbrained and trying to grasp at what the investigation could be about.
Mr. Porter continuing, stating that in the latter half of the investigative interview, Mr. Balthrop did recall. He said that Mr. Balthrop had taken a break and spoken with his union representative, had gone through the incident in his mind, had been refreshed and remembered what happened and then had explained in the interview that he thought he now remembered making the comment. He said that the investigator, Mr. Rose, had shaken Mr. Balthrop’s hand and thanked him for being honest. He said that Mr. Rose had articulated that Mr. Balthrop was being honest, and that Mr. Balthrop’s position was more accurately reflected at this meeting and during the evidentiary record made during the arbitration. He said that when pressed about these issues by Ms. Hurtado on cross-exampination, Mr. Balthrop had not doubled down and stated that Ms. Fraide should not have been offended or that he had been right to make the comment. He said that Mr. Balthrop had taken accountability, regretted making the comment, City Council Minutes October 15, 2024
16 and regretted articulating those thoughts. He asserted that they were not representative of facts or beliefs that Mr. Balthrop held at the present time.
The Council asked Mr. Porter to define “severe and egregious,” and to explain why the conduct in question had been rude, discourteous, offensive, but had not risen to the level of severe and egregious. Mr. Porter said that the City’s policy used the term "especially severe and egregious," not just "severe and egregious," and that this indicated that the intention of the policy as written was that it was not just supposed to be severe and egregious. He said that there were several categories of abusive conduct that the code listed and described: abusive conduct, severe and egregious, and especially severe and egregious. He said that he would think that especially severe and egregious conduct would require immediate suspension, immediate removal from the workforce. He said that as shown in the administrative record, Mr.
Balthrop had not been placed on administrative leave until sometime after the investigation was conducted; he said that the City had known what comments Mr. Balthrop had made regarding Aysel Gan and that the City had not placed him on administrative leave even though he and the witnesses had been interviewed. He stated that this was not consistent with the City now holding that the behavior had been especially severe and egregious. He said severe and egregious conduct was unacceptable behavior that could not be tolaterated in the workplace, such as racial slurs, or an abusive comment that was so egregious that the recipient of the comment had to go home or take time off work. He said that what was especially severe and egregious should not be said in the Council Chamber and that he would feel uncomfortable giving an example. He said that saying that someone can "suck it," "kick rocks," or "shove it," did not constitute a severe and egregious comment. He said that this had been articulated by the arbitrator in the record. He said that the fact that the comment was being openly quoted, that witnesses had articulated it, and that Mr. Balthrop was apologizing for the comment was indicative that it was not a severe and egregious comment. He said it was offensive, it could be humiliating, intimidating, or threatening, but that it was not especially severe and egregious.
Ms. Alves stated to Mr. Porter that Ms. Hurtado had read a definition of severe and egregious from the City’s policy and asked Mr. Porter if it was his understanding that it was not the definition of severe and egregious. In response, Mr. Porter said that Ms. Hurtado said that a definition for severe and egregious was not within the policies, and that she had said that people needed to use their common judgment and discretion based on life experiences to determine what was severe and egregious. He said that he agreed with Ms. Hurtado that "severe and egregious" and "especially severe and egregious" were not outlined in the policy.
He said that it was something that he felt needed to be determined based on past practice and the way that discipline had been issued amongst other employees. He said that further examples would be those that he had mentioned such as racial slurs or other conduct rising to a level recognized as unfitting for even First Amendment rights, something horrific and upsetting to anybody who might listen, and acceptable to have in the workplace for even a single day further.
The Council asked Mr. Porter to address Ms. Hurtado’s statement that Mr. Balthrop could have apologized and could have written an apology note, and to address why his client had not apologized. Mr. Porter said that generally, during an administrative investigation and an appeal process, with allegations about harassment or abuse between a victim and an employee, the victim's receiving a letter passed off through multiple hands was not normally conducive to making the victim feel better. He began to describe a scenario in which Mr. Balthrop might have the opportunity to address the witnesses in the workplace, in a safe location where they were not worried about a comment being misconstrued, but did not finish the scenario. He said that he had rarely seen an employee go out of their way to write a letter and give it to opposing counsel during an ongoing appeal and investigation. He said that sending an apology letter through that kind of roundabout system was uncommon and generally not conducive to City Council Minutes October 15, 2024
17 remedying the situation. He said, however, that if the City approved and felt it would remedy the situation, Mr. Balthrop would be more than willing to write letters, meet in person, have a phone call and interact with the witnesses in some specific way. He said that Mr. Balthrop would be on board with writing an apology letter and that an apology letter would be an appropriate part of resolution of this situation. Regarding remedies, he added that Ms. Hurtado had questioned what taking another training course could do, and he said that instead he believed the appropriate remedy would be to suspend Mr. Balthrop. He said that Mr. Balthrop had never been suspended. He said that saying that because a course may not help, termination was the only solution did not make sense when other disciplinary measures were at the City’s disposal.
The Council asked Ms. Alves whether the Council had any discretion on discipline between the three day suspension recommended by the arbitrator and the termination recommended by the City Manager. Ms. Alves answered, stating that the Council would make a decision in closed session, which would be reported out, either to uphold or deny the City Manager's decision to terminate Mr. Balthrop. She said that a written decision would be prepared within 10 working days, and would be due to the parties, containing further findings along the lines of what the arbitrator had decided: the facts, if there was just cause for termination, and if there was not cause for termination then what level of discipline would be appropriate.
The Council noted that the final notice of disciplinary action had been on November 7, 2023, and asked when the first notice took place. Mr. Porter responded, stating that on October 13, 2023, Mr. Balthrop had been sent notice of proposed discipline. Ms. Hurtado added that on the same day Mr. Balthrop had received notice that he was being placed on administrative leave.
The Council asked Mr. Porter what evidence he had for his allegation that the City Manager had a pattern of pushing people out who were near retirement, and Ms. Alves interjected, noting that this allegation had been stricken from the Council’s consideration because it was not part of the original evidentiary record. Ms. Hurtado added that the comment had been very inappropriate because Mr. Porter was aware he should not mention anything outside of the evidentiary record.
The Council asked why Mr. Balthrop had not received any evaluations since 2015. Ms. Hurtado said that she did not know the answer and would ask Public Works Director Renny to speak to this during public comment.
The Council asked whether the arbitration had been just for determining the honesty issue, or the actual act. Ms. Hurtado said that it was for both. She said that there had been multiple violations of Monterey City Code, including being dishonest during the investigatory interview when, before the interview, Mr. Balthrop had already been advised he should be truthful with Mr. Rose. She reiterated that the arbitration was for dishonesty during the investigation and for the conduct itself, and reiterated also that there were multiple code sections that were violated by Mr. Balthrop’s conduct.
The Council asked Mr. Porter to put into context his assertion that Mr. Balthrop’s comment had been an offhanded comment, and his reference of a middle school playground, and asked him whether he felt this was a light subject that the Council was dealing with. Mr. Porter said no, that by stating that this was an offhanded comment that one might hear at a school for children, he was referencing that in the evidentiary record regarding the Skelly hearing, when Mr. Heron had represented Mr. Balthrop, there had been discussion about "suck it" being a common catchphrase relating to a wrestling move or the Wrestling Federation. He said that he was not minimizing the comment or saying that Ms. Fraide should not have been offended, or that Mr.
Sanchez should not have been offended on Ms. Fraide's behalf, or on behalf of his not wanting that comment to be made to his daughter. But he said that while the comment might be City Council Minutes October 15, 2024
18 intimidating or humiliating in certain contexts, it did not rise to the level of being “especially severe and egregious.” He said that in his view, one would not hear severe and egregious comments being made at a schoolyard, unless those students would have consequences of being suspended or receiving similar discipline. He reiterated that he wanted the Council to acknowledge and understand the full context, that this was not a racial slur but rather an offhanded comment that equated not to some kind of request for sexual favors, but more to "this person can shove it," or "they can kick rocks," which he said was the intent and the tone.
He said that this was how the phrase was generally used socially and that this was what he had tried to articulate with his remarks.
The Council stated that the analogy of student conduct on the playground did not resonate, noting that this incident did not involve a student but a grown man with 24 years of experience in City employment, who was used to working with vendors, the public, coworkers, and a chain of custody. Mr. Porter was asked how he would describe Mr. Balthrop’s conduct if not egregious. Mr. Porter responded, stating that the specific city code language discussing abusive conduct and bullying described Mr. Balthrop’s conduct: humiliating, threatening, or intimidating.
He said that Ms. Fraide had said she felt embarrassed (which he noted was pretty synonymous with being humiliated) by the comment even though it was about Ms. Gan. He said that Mr.
Balthrop recognized that his conduct did fall into that category. He said that in this situation the burden of proof laid with the City as far as proving that it amounted to “especially severe” and especially egregious conduct. He said that he would go one step further to say that if there were concerns about the meaning of especially severe, or especially egregious, then it was obscured in the policy and therefore unfair to suddenly say that Mr. Balthrop’s conduct in this situation had risen to such a level, since it was not clear what that level was. Regarding the playground analogy, Mr. Porter agreed that Mr. Balthrop was an adult and a professional who dealt with many different vendors, employees, and important people with the City in his line of work, and whether or not his comment had been especially severe or especially egregious, he said the Council should look at the actual conduct and the actual comment itself. He said that it was something that you might expect a teenager to say to one of his friends, that it was a phrase that was commonly used, and people weren't arrested for saying it. He said that people who said it weren't taken in and charged with a hate crime for making an unforgivable, especially severe comment. He said that the comment could be childish, immature, and embarrassing. He acknowledged that the comment was embarrassing for Mr. Balthrop and that it had been embarrassing for Ms. Fraide, but he reasserted that it was not “especially severe and egregious.” He said that it was not clearly defined in the policy, and asked: if “this person can suck it" was severe and egregious, then what comment was not severe and egregious that would still merit discipline and correction? He said that he had a hard time thinking of comments that would amount to being threatening, intimidating, humiliating, gratuitous sabotage, or undermining of a person's work that were less than "this person can suck it." He reminded the Council that there were multiple categories, not just threatening and humiliating; there was "severe and egregious," and "especially severe and egregious." He said that it was his client's position and the union's position that Mr. Balthrop’s conduct fell under the first category of being abusive conduct, but not rising to those severe and egregious levels. He said that it was the job of the City and investigator—the party looking to impose discipline—to prove that the conduct rose to the higher levels of abusive conduct.
The Council stated that, along the lines of looking at the substantiated violations listed in the investigator's report, Mr. Rose had also outlined compelling evidence based on witnesses and ultimately a partial agreement by Mr. Balthrop that there was substantial evidence of dishonesty. The Council pointed to Monterey City Code section 25-14.02 subsection (h) "Dishonesty, involving employment," and subsection (o), "Discourteous treatment of the public or other employees within the scope of employment," and asked Ms. Hurtado to confirm that those were the correct code sections that applied when discussing this substantiated evidence City Council Minutes October 15, 2024
19 reported by Mr. Rose. Ms. Hurtado confirmed that they were the correct code sections and added that Monterey City Code section 25-4, subsection (f) allowed the City Council to "reaffirm the disciplinary action, reverse it or modify it." She urged the Council to affirm the City Manager's determination.
Returning to the discussion of whether "especially" applied to the conduct in question, the Council asked Ms. Hurtado to confirm that in addition to subsections (h) and (o), Monterey City Code section 25-[14.02] also applied, regarding satisfactory performance, and that the Council would use these sections as possible evidence for findings. Ms. Hurtado confirmed this understanding. The Council posited that the combination of violations could merit, or rise to a level of significance that would merit, an affirmation that Mr. Balthrop should be terminated when looking at them in combination, and Ms. Hurtado agreed. She said that the point she had been trying to make was that Mr. Porter was trying to focus on a single word: "egregious," or "especially," but that Mr. Balthrop had violated multiple city codes, which she said had been documented from the very beginning of Public Works Director Renny’s notices to Mr. Balthrop about the discipline and investigation, and in all of the documentation so far. She stressed that it was a combination of all of those violations of multiple city codes that the Council needed to consider in determining whether termination was appropriate.
The Council spoke about the moment in the investigatory interview when Mr. Balthrop either had become motivated to be truthful, or had put facts together in his head to the point where he was capable of then giving a more clear picture, and then had admitted to making the statement but still declined to admit that there had been a gesture to his groin. It was asserted that there had been significant recall of the time period by Mr. Balthrop, such as who was there, the back door, flickering lights, rainy day, wet floor, and the heated discussion which was in evidence by Mr. Rose's report. It was stated that the investigator had reported that the manager of Subway and Mr. Balthrop had had a heated exchange, and that Mr. Balthrop had also admitted, to great depth and recall, that it was a heated exchange, and that yet the discussion of the heated argument seemed to Mr. Balthrop only to relate to entering through the back door when he was not supposed to, but not to any of the other facts of what he allegedly had expressed and displayed in front of a victim and witness. Mr. Porter was asked to explain how Mr. Balthrop could have recalled all of those facts but not the central point of why people were offended. Mr.
Porter responded, stating that Mr. Balthrop’s initial interview with Mr. Rose had been fairly long.
As to nuances of why an individual might recall and remember specific things when under stress or pressure, he said he could not articulate this and would probably need an expert on memory recall to explain, but he said that Mr. Balthrop’s position at the present time, based on his memory, he was that during the first half of his interview with Mr. Rose, Mr. Balthrop could not remember the incident. He said that based on the questions Mr. Rose asked, different ideas were prompted in Mr. Balthrop’s mind, some of which were memories of specific aspects or portions of the day or of his interaction, and that some of the other questions might have prompted Mr. Balthrop to grasp or speculate as to what was going on in the specific situation.
Mr. Porter continued, saying he wanted to highlight some interview tactics, or at least the interpretation of Mr. Balthrop’s response that Mr. Rose had highlighted in his report. He said that Mr. Rose was the one who had suggested Mr. Balthrop take a break with his union representative, and that Mr. Balthrop had agreed to take a break and discussed with the union representative, when he then recalled, recounted what happened that day, came back, and articulated that he did remember making the comment but did not remember making the gesture. Mr. Porter asserted that Mr. Rose had used the offer of a break against Mr. Balthrop in the report, saying that he had only remembered after he was told to take a break, and had therefore been dishonest. He alleged that this was an unfair investigation technique, describing a flustered and frustrated subject of an investigation who was therefore offered a break, only to “fall on the sword” when the break worked and the subject was then able to recall parts of the City Council Minutes October 15, 2024
20 incident. He said that Ms. Hurtado claimed that Mr. Balthrop was lying and had lied during the arbitration, but he asserted that there was no evidence that Mr. Balthrop was lying or had lied.
He said that there was evidence that one witness, Lt. Sanchez, said he saw Mr. Balthrop motion to his groin when he made this comment. He said that Ms. Fraide had said that she did not remember Mr. Balthrop motioning to his groin and did know that he had motioned to his knee.
He said that Mr. Balthrop had said that he did not remember making the motion or the gesture, but that he did know that he commonly slapped his knee or motioned to his knee. He said that although the City argued in favor of two witnesses being compelling, Mr. Balthrop’s comment in his recollection was more consistent with Ms. Fraide’s recollection. He said that Mr. Sanchez’s comment, although found by the arbitrator to be credible, was inconsistent with Ms. Fraide's comment. He said that when he had cross-examined Mr. Rose, Mr. Rose had admitted that these two witnesses were inconsistent, that their recollections were inconsistent with each other’s, and that ultimately Ms. Fraide’s recollection was more in line with Mr. Balthrop’s recollection. Therefore, he asserted that the dishonesty allegation should not be sustained.
The Council requested more information on the timeline between the time the incident was reported in January of 2023 to the next action taken by the City, leading to the Skelly hearing.
Ms. Hurtado responded, stating that the incident took place in December of 2022, and was reported by Lt. Sanchez to Mr. Balthrop’s supervisor General Services Superintendent Dwight on January 19, 2023. She said that there was then a notice of an investigation and a request to schedule investigative interview on February 21, 2023, and that the interview had been held on March 6, 2023. The Council asked a follow-up question, requesting to know whether, upon General Services Superintendent Dwight’s receipt of the complaint from Lt. Sanchez, he had interviewed the Subway employee. Ms. Hurtado answered that she did believe General Services Superintendent Dwight had spoken directly with Ms. Fraide, and that he was present at the meeting and was prepared to provide public comment. The Council requested to hear from General Services Superintendent Dwight about the time period after the letter in relation to the December offense date, as it would be one more marker in terms of what Mr. Balthrop had been told by the Subway manager.
The Council indicated they would have questions for General Services Superintendent Dwight and City Manager Uslar, and Mayor Williamson, noting that the staff members would speak only as public commenters, suggested the Council ask their questions in advance so that staff could address them. The Council asked to hear from General Services Superintendent Dwight a general summary of the interview that he had conducted with the victim at Subway: where the interview and taken place, whether she had recalled the gestures of the arms or hands to the groin, and whether she had affirmed the verbal statement "[...] can suck it" was made. They also requested information on his interview with the Lieutenant from the Presidio of Monterey.
The Council requested clarification about when they are to consider a “preponderence of evidence,” whether that meant “greater than fifty percent.” Ms. Hurtado said that it meant more likely than not, and did not have to be a certain amount over fifty percent, and could be just a hair above fifty percent.
The Council requested that Mr. Porter clarify an allegation that he had made that the City Manager had used evidence he was not supposed to use. Mr. Porter responded, stating that he had specifically referenced Mr. Balthrop, relying on the language about the two witnesses. He said that this went back to the concern about what Ms. Fraide had articulated and recalled in City Manager Uslar’s report. He said that the evidence that had been ignored, or that had referred more back to Mr. Rose’s investigation, which he said was contradicted and refuted during the arbitration, was the inconsistency between the testimony of the two witnesses, Mr.
Sanchez and Ms. Fraide. He said that according to the interview conducted by Mr. Rose, the recorded, transcribed reports contradicted each other in those specific ways as to the gesture.
City Council Minutes October 15, 2024
21 He said that City Manager Uslar’s report relied on Mr. Rose’s initial investigation report, which he said Mr. Rose had then admitted was not accurate during arbitration, and that Mr. Rose had admitted that the two witnesses were actually not entirely consistent. On further question from the Council, Mr. Porter said that it was in the transcript, which Mr. Porter said he did not have marked in front of him; he said it took place at the specific point when he said Lt. Sanchez said that Mr. Balthrop had made a clear gesture, which Mr. Porter said he thought Lt. Sanchez had called a “T” pose, or some kind of specific pose, which was very clear, gesturing to his genitals.
He said that Ms. Fraide had articulated that Mr. Balthrop had made some motion toward his knee or toward his leg, toward his lower body. He said that these were two very different things, that a person could fling his arm toward his other arm, maybe because of being exasperated, or could just smack his leg for some reason, and that this was very different from gesturing toward his genitals. He said that this distinguishing thing was put on the record during the arbitration, which he said was a critical discernment, because he said the City’s position to this point had leaned on the fact that they said Mr. Balthrop was dishonest because of his position or recollection of the gesture. He said that therefore a lot hung on whether Mr. Balthrop did the gesture or not: if Mr. Balthrop did not do the gesture, Mr. Sanchez remembered it inaccurately, and Ms. Fraide and Mr. Balthrop did remember it accurately. He said that Mr. Balthrop was honest and that his comments were consistent, and that it was critical and important to highlight the distinction.
Ms. Alves asked Mr. Porter to point to where in the administrative record he saw that Ms. Fraide said that she only saw Mr. Balthrop point to his knee, because she said that in the investigation report Ms. Fraide had described the gesture pretty thoroughly and not just as pointing to his knee.
Mr. Porter responded that he believed that Ms. Fraide had used the term, “lower body.” Ms. Hurtado referred to Finding No. 16 on page eight of the arbitrator's decision, in which she noted that the arbitrator had made the following finding of fact: “Lieutenant Sanchez and Ms.
Fraide told Mr. Rose that Mr. Balthrop said, ‘Aysel can suck it,’ and gestured toward his groin.” Ms. Hurtado asserted that Mr. Porter was trying to confuse the Council and muddy the record in terms of the facts that the arbitrator found, and upon which the City Manager had relied in making his decision. She said that the arbitrator had clearly found that both witnesses had told Mr. Rose the same thing. She went on, stating that it did not matter whether Mr. Balthrop had gestured toward his knee or his groin; he had made this comment and clearly intended to gesture toward his genitals as he said it, because of the context of the statement and what he was referring to, which she said is why it was offensive and egregious. She urged the Council not to be confused by what Mr. Porter was arguing, because she said it was not based on the record at all.
Mr. Porter added that Ms. Hurtado had not mentioned the footnote that was referenced in Finding No. 16, which he said was that, “in this case, the Finding of Fact is that Mr. Rose heard these allegations in the course of his investigation, not that the allegations are true.” Ms. Hurtado noted that Mr. Porter had argued that the witnesses weren't consistent, but they were consistent in what they told Mr. Rose. She said that the arbitrator had noted in the findings of fact that they were consistent, and also that Lt. Sanchez on his own was credible when he described the gesture and the comment.
Mr. Porter noted that the footnote specifically said that this was what Mr. Rose had heard during the course of his investigations. He said that he thought there was a distinction between what the individuals had said and what Mr. Rose had heard. He said that during the arbitration, Mr.
Rose had consistently summarized what the witnesses had articulated, and admitted that he City Council Minutes October 15, 2024
22 would need to reference his specific records themselves, and that he had not been able to recall. Mr. Porter said he was specifically trying to get at the fact that while the arbitrator's Finding No. 16 said that Mr. Balthrop gestured toward his groin, according to Ms. Fraide and Lt.
Sanchez, the footnote specifically said that this was what Mr. Rose heard, according to Mr.
Rose, which Mr. Porter said was different from whether or not they actually happened or the allegations were true.
Ms. Alves repeated her request for Mr. Porter to find the citation to where he claimed Ms. Fraide had made the comment that that it was only a gesture to Mr. Balthrop’s knee, stating she thought that it was an important distinction.
Mr. Porter said he wanted to clarify that his recollection was that Ms. Fraide said Mr. Balthrop had gestured toward his “lower body,” and that he had misspoken when he said “knee” specifically. He said he could not find in the record where she said that Mr. Balthrop had motioned to his knee.
The Council asked Mr. Porter to find that knee citation and to let the Council know when he did.
The Council asked questions and noted it could be more appropriate for City staff to answer, and if so, the City staff members present were asked to respond during their public comment.
The Council asked for more information on the City’s practices regarding performance plans to address performance deficiencies, and whether an employee would be put on a performance plan if there were peformance issues. It was stated that it was the Council’s understanding that while presently, all employees should be on annual performance plans, in the past that was not always the case and if an employee had reached the top step on their pay scale, they had no longer been required to be on a performance plan. It was stated that it seemed like there had not been consistent performance plans offered to Mr. Balthrop, and it was stated that it was assumed that this was because there had not been issues with his performance. It was stated that the Federal government used "Douglas Factors," which it was explained were factors that made sure management considered with a wide aperture all of the circumstances that might impact the level and type of discipline chosen in a scenario. From this viewpoint, clarification was requested regarding whether Mr. Balthrop’s position was a front-line, supervisorial, or lead position with people reporting to him; whether outside of this incident Mr. Balthrop had been normally able to get along with others and be dependable in the performance of his duties; whether, if Mr. Balthrop returned to work, management felt he would be able to perform his assigned duties; whether there been other cases where an employee had been removed for similar misconduct; what the range of penalties in this scenario would be according to the city code; what the agency's thought was on Mr. Balthrop’s ability to be rehabilitated; and whether there had been any mitigating circumstances, personal problems, or extra stress going on at the time that may have caused Mr. Balthrop to perform or behave differently from normal.
Ms. Hurtado said the MOU was very clear that the proceeding needed to be based on the administrative record, and that she therefore hesitated to put additional information forth given that. She urged the parties to stick to the administrative record because of the MOU and because those were the rules under which everyone involved had been operating.
On question from the Council, Ms. Alves said that it was appropriate for the Council to ask such questions and receive answers from the attorneys with only information that had been put forth in the administrative record, but said she would refrain from having public comments be specific to these questions due to the amount of information and the limited time available to speak.
Ms. Hurtado then addressed the questions. She stated that Mr. Balthrop’s position had not been supervisorial. She said that there had been no mitigation for Mr. Balthrop’s conduct, that the City Council Minutes October 15, 2024
23 only mitigation that had been offered was that Mr. Balthrop did not remember when he was asked about his conduct, had been an employee for a very long time, and was sorry and had remorse now, that Mr. Balthrop’s last performance review almost ten years prior had been satisfactory, and that he had received awards. She said that the arbitrator had found that the awards and performance review were not relevant and that what was relevant was to focus on his conduct. She said that the City Manager had found that none of that was mitigating, given the seriousness and egregiousness of the conduct as well as Mr. Balthrop’s dishonesty. She said that Mr. Balthrop’s ability to get along with others was abysmal based on what was in the record, stating that there was evidence in the record, specifically in Mr. Rose’s investigation report, that Mr. Balthrop had had a lot of conflict with people at the Presidio of Monterey, had had a sense that people were after him, and had had conflict with all of the security guards at the Presidio. She said that as soon as Mr. Balthrop had been called in for an interview with Mr.
Rose, he had immediately gone on the offensive and started coming up with incredible reasons why a security guard might make things up against him that had not happened. She said that Mr. Balthrop’s plan had been to say that all of the security guards at the Presidio were after him and harassing him, and that this was why this one particular security guard was making things up. She clarified that Lt. Sanchez was a different security guard who had never had a conflict with Mr. Balthrop, but that Mr. Balthrop thought the person reporting his conduct to General Services Superintendent Dwight was a different security guard. She said that security guards had also filed a complaint against Mr. Balthrop for various different reasons, and that Mr. Rose had not investigated these complaints because he had found them peripheral to the main complaint. She said that Mr. Balthrop had also had theories about Lt. Sanchez having a crush on Ms. Fraide, and that this was why he had made the complaint, and that none of the theories made sense and this was why Mr Rose had not considered any of it and it was a footnote in his report, but she noted that it was in the record that Mr. Balthrop was having a lot of conflicts with security guards and was unable to get along with them. She also noted that Ms. Fraide had said in her testimony that Mr. Balthrop would often come in and leer at the other women that were working at the Subway. She said that this did not paint a picture of someone able to get along in a professional manner with people he worked with. On question from the Council regarding the conflict with security guards, Ms. Hurtado said that this was based on Mr. Balthrop’s comments in the interview and that one of the security guards had filed a complaint about Mr. Balthrop’s behavior at the entry gate, for conduct such as not showing proper identification when he came onto the base, driving up playing really loud music, and basically not following rules and regulations. She reiterated that these complaints were not investigated but were noted in the report.
Mr. Porter said that none of these complaints or issues were in the notice of proposed discipline, or the notice of final discipline, and he asserted that leaning on them would be a violation of Mr. Balthrop’s Skelly rights, because he would not have the opportunity to appeal or address those specific issues. He said that in the evidentiary record, during the arbitration, Mr.
Balthrop had explained and testified as to some of the mitigating factors for his conduct and nuances as to why he had been under stress at the time. He said that it was true that the arbitrator had not leaned on those mitigating factors when she came up with the determination that a three day suspension was appropriate and a termination was inappropriate. He spoke about the mitigating factors, stating that leading up to the incident the City had been short two electricians for two years, who would have been working with and assisting Mr. Balthrop. He said that Mr. Balthrop had been the only certified electrician of the two electricians that the City had. He said that Mr. Balthrop had been overworked, very stressed, and overseeing lots of projects. He said that Mr. Balthrop had continually asked for more staffing to alleviate the fact that two electricians were doing the work of four electricians for over two years. He said that Mr.
Balthrop had testified about the stress of overwork, lack of sleep due to sleep apnea, and later when he was being interviewed, the perception of being under investigation and having his job hanging in the balance. He said that it did make sense that staffing issues would cause City Council Minutes October 15, 2024
24 additional stress. He said that as Mr. Balthrop had testified, it was out of character when he said “[this person] can suck it.” He said that it was out of line with how Mr. Balthrop conducted himself in his career for 23 years, but that he was overstressed, lacking sleep, and was not thinking straight, maybe saying things without thinking and he said that it was in this context that Mr. Balthrop made this offhanded comment. He said he was not justifying the conduct, not excusing it, but showing that it was not part of who Mr. Balthrop was normally, which he said was evident from Mr. Balthrop’s entire career with the City. He asked the Council to take these different considerations into account before making a decision.
The Council checked with Mr. Porter to find out whether he had been able to find the citation he had been looking for in the administrative record. He said that he did not have the entire administrative record in front of him at the meeting but that he was looking specifically at Mr.
Rose’s transcript of Ms. Fraide's interview. He said that he wanted to note that Ms. Fraide had not testified at the arbitration, and that he did not want to make assumptions about whether or not a witness was called to testify, as that was the witness’ prerogative and the City’s prerogative, however he said that the record itself and the transcript itself would be considered administrative hearsay, stating that the union or Mr. Balthrop and Mr. Porter had not been able to cross-examine Ms. Fraide. He said that Ms. Fraide had never come and explained what she saw, what she heard, her position, or her feelings, and that they had been forced to rely on Mr.
Rose’s impression and recollections of Ms. Fraide. He said that in the transcript of Mr. Rose's interview of Ms. Fraide, which he said was the City’s Exhibit 7 (C7), at 8 minutes and 25 seconds into the interview, Ms. Fraide said, “he made this gesture with his body.” He said that Mr. Rose had not seen the incident himself and did not know specifically what was going on in Ms. Fraide's mind, and he reiterated that the union had not had an opportunity to cross-examine Ms. Fraide. He said that therefore the City was forced to rely on Mr. Rose's account and recollection, and that Ms. Fraide's transcript could be used as evidence insofar as it supported and coincided with what Mr. Rose had testified about and on which he was cross-examined.
Ms. Alves said that Mr. Porter was referencing the City’s Exhibit 7, but that in the administrative record that the Council had received, Exhibit 7 was the arbitrator's finding of facts and recommendations. She said that the Council had only received the administrative record, and not the City’s or union’s exhibits that had been presented during arbitration.
Mr. Porter said he would get to the specific reference, and Mayor Williamson suggested going to public comment, which he noted would give Mr. Porter more time to try to find the reference.
Ms. Alves said that the Council might receive extra evidence in public comment, and said that to the extent that it might go beyond the evidentiary record, the Council could not use it in making their decision. She informed Mr. Porter that because Mr. Balthrop had been able to speak under the stipulated oral argument agreement between the City and the appellant, an additional comment from Mr. Balthrop would violate that agreement.
Mr. Porter responded that what Mr. Balthrop articulated was all in the evidentiary record as far as his work history, awards, and evaluations.
Ms. Alves said that the City and appellant had agreed to 30 minutes each of oral argument and that they had already gone beyond that, so she did not think the Council could take further oral argument from Mr. Balthrop under the stipulated agreement.
The period for public comment was opened.
Ryan Heron, union representative for General Employees of Monterey (GEM) and for Mr.
Balthrop, said that there had been much discussion regarding defining "severe and egregious" City Council Minutes October 15, 2024
25 and about whether Mr. Balthrop had been dishonest. He said that the union asked the Council to uphold and affirm the decision of the neutral, mutually accepted, outside arbitrator, who he said had determined that the conduct was not egregious and that Mr. Balthrop had not been dishonest. He asserted that if the Council did not, he believed it would have an extremely negative impact on the overall morale of the City workforce. He said it would send the message that a neutral, professional, outside hearing office was merely disregarded and that her opinion did not matter, and that the City Manager could "merely take that process and crumple it up and throw it away" and disregard that opinion. He said that it was a really important decision that the Council had to make, and that he respected and honored that, but wanted the Council to take into account the weight of it. From his standpoint, he said that what was severe and egregious was for the City Manager to take the arbitrator's opinion and completely disregard it. He asserted that this was unacceptable and did not uphold the values that he said the City Council wanted to demonstrate. He said that the message that it sent the City workforce was that it was the City Manager’s decision to make and that he could disregard what the professional and the union said. He said this demonstrated a lack of respect for labor and for the hearing officer who had decades of experience in cases like this. He closed by asking the Council to consider adopting what the professional hearing officer had recommended.
Chris Dwight, General Services Superintendent for the City of Monterey and Mr. Balthrop’s immediate manager who was the division head for his electrician position, said that he had had firsthand interactions with several of the inviduals named and wished to provide his perspective.
He went through a quick timeline of the events. He said that on January 19 he had received [Lt.] Sanchez's email with the claims including the statement that he said was in record or quoted.
He said that he had immediately understood the severity of the situation and had spoken with Lt. Sanchez to understand what had happened, whereupon he said that Lt. Sanchez had articulated to him that that he felt the conduct was severe and egregious which was why he had taken the steps he did to document it in an email. General Services Superintendent Dwight continued, stating that he had immediately sought out Ms. Fraide to corroborate the email from Lt. Sanchez, and to see what her experience was and what actions General Services Superintendent Dwight needed to take needed to take as the manager responsible for the division. He said that he went to Subway, and made sure that he and Ms. Fraide were able to step aside to talk privately and that she had agreed to do so and had said she was comfortable speaking about it. He noted that while it had been some time since the incident in December, Ms. Fraide had been very clearly upset even after that amount of time had lapsed. He said that this had shown him that he was dealing with something important. He said that he shared with her his very brief understanding without giving any details, but expressed that he had received a complaint, and that he had asked Ms. Fraide to explain in her own words what had happened.
He said that Ms. Fraide had articulated that Mr. Balthrop had said those words and had made that movement gesturing to his groin. He said that he had then run it up his chain of command.
He said that by the nature of the conduct it had obviously been severe and egregious to Ms.
Fraide, and that she had been clearly upset. He read aloud from the emailed complaint from Lt.
Sanchez: “Jerod ignores me and continues talking to Leslie. Jerod stated he has keys so it wouldn’t matter if she locked the door. He has keys to the installation, he spoke.” He said that he found it upsetting that an individual said these things to a young woman who then felt she could not lock the door behind her establishment. He closed by adding that he also had other evidence that he could not state at this hearing about dishonesty and relating to his supervision of Mr. Balthrop that he did not find in Mr. Balthrop’s file.
Andrea Renny, Public Works Director for the City of Monterey, said she had listened to the interviews twice. She asked the Council to picture being a young lady working in a Subway shop when a City employee walks into the Subway in his City uniform, representing the City at the Defense Language Institute, with which the City has a contract. The employee comes in through the back door, disregarding her request that he not come through the back door. She City Council Minutes October 15, 2024
26 described that in this scenario the man gets upset and the woman gets a little upset, and then he says “suck it” and makes a gesture. Public Works Director Renny stated that she would not make the gesture, that it was especially egregious and it was embarrassing and humiliating.
She said that in the interview Mr. Balthrop had mentioned something about wrestling, and she said that if you Google it, in wrestling, the term “suck it” goes with a specific gesture. She stressed to the Council that as a woman, if a man were to make that gesture and say those words, she would not be thinking of wrestling; she would be horrified and it would be shocking to her. She added that it was shocking to her that this person representing the City wearing a City uniform had done this in public. She said that in the recording she could hear Ms. Fraide's humiliation, and that as Ms. Hurtado had noted, there were other things that had made Ms.
Fraide uncomfortable. Public Works Director Renny said that she would like to see remorse from Mr. Balthrop, and that all people make mistakes, but noted that Mr. Balthrop had said in his own words that he couldn't believe Ms. Fraide would be offended because she was a girl who looked like she just got out of jail, because she had a neck tattoo. She stressed that no human being should be treated that way. She ended her comment with a quote: “The culture of any organization is shaped by the worst behavior that the leaders are willing to tolerate.” Hans Uslar, City Manager, said that the core issue was that a male had pointed to his penis and said “Aysel can suck it.” He asked the Council whether that was acceptable for the City. He said that the Council had heard academic definitions of “egregious” and “especially egregious” behavior, and had heard Mr. Porter say racial slurs were worse than sexual harassment statements, and he asked if the Council wanted to decide that racial slurs were worse than someone pointing to his penis and saying “Aysel can suck it.” He asserted that Mr. Balthrop was a liar who had lied to the Council at this meeting when he stated that he couldn't remember what was going on and it took him a while to recollect what was going on. City Manager Uslar asserted that Mr. Balthrop recollected immediately and knew five minutes into the interview that the discussion was about what happened at the Subway, and that this was in the record. He said that Mr. Porter had tried to spin the story that there were investigative tactics used to try to figure something out. He said that only after the investigator had confronted Mr. Balthrop with statements of two witnesses who could confirm what Mr. Balthrop had said and gestured, and then suggested a break, Mr. Balthrop then took a break and became more honest and agreed and recollected that he had said the phrase in question. City Manager Uslar stressed that these were the undisputed facts. He said that Mr. Porter had claimed that Mr. Balthrop’s lies were speculations, which he said was an interesting spin on truth from an officer of the court. He said that he was glad the Council had identified the middle school playground argument. He said that keeping someone with Mr. Balthrop’s behavior on staff would not represent the organization that he wanted to lead or the organization that the Council wanted to oversee. He said that the “Me Too” movement had helped recognize women and their rights of integrity. He closed by stating that this event did happen, and that he did not buy for a second that the female employees of the City would support Mr. Heron's claim that affirming the termination would negatively impact worker morale. Instead, he said that the opposite would be true.
Mayor Williamson asked for any Council comments. It was briefly stated by the Council that the Councilmembers would contemplate what the Council had said, review the findings of the investigation and the statements and testimony at this meeting, and make a considered evaluation and judgment on whether the termination could be sustained.
COUNCIL COMMENTS
Councilmember Haffa stated that he had a conflict that would not allow him to attend the next Community Human Services meeting, and asked if the Council’s alternate could attend in his place.
City Council Minutes October 15, 2024
27 CITY MANAGER REPORTS
None made.
*** Adjourn to Closed Session ***
The Council adjourned to closed session at 9:47 p.m.
CLOSED SESSION (EVE)
10. Public Employee Discipline/Dismissal/Release Pursuant to Government Code section 54957 (Not a Project under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)
Action: On a roll call vote of 4-0-1, with Councilmember Garcia absent, the City Council affirmed the City Manager’s decision to terminate the employment of Electrician Jarod Balthrop
ANNOUNCEMENTS FROM CLOSED SESSION
At 11:41 p.m., Assistant City Manager Rojanasathira announced that in the matter of Item 10 (listed above), on a roll call vote of 4 yeses (from Councilmembers Barber, Haffa, and Smith, and Mayor Williamson), with Councilmember Garcia absent, the City Council affirmed the City Manager’s decision to terminate the employment of Electrician Jarod Balthrop.
ADJOURNMENT
The Council adjourned at 11:42 p.m.
Respectfully Submitted, Approved,
Clementine Bonner Klein Tyller Williamson
City Clerk Mayor