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Evans HR Complaint

Evans HR Complaint

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DAVID A. FITZGIBBONS III DENIS M. FITZGIBBONS DANIEL G. HARRINGTON ANN F.

SCHROOTEN

TINA L. VANNUCCl EDWlNUS M.VAN VIANEN RICHARD L. SCHOLZ KAREN J. STILLWELL ME.GAN K. WEAGANT

FITZGIBBONS LAW OFFICES, P.L.C.

TRUST .. INTEGRITY""A TRAOITION

DAVID A. FITZGIBBONS ( 1930-1995)

B.D. McBRYDE ( 1919-(998)

HOWARD H. KARMAN Of Counsel

DAVID P. BRAUN Of Counsel

July 23,2010

City of Maricopa

Vanessa Bueras, City Clerk POBox6l0

Maricopa,~ 85139

Re: City Manager Investigation

Dear Vanessa:

Enclosed is the Complaint filed by Karen Shaffer regarding City Manager Kevin Evans and the subsequent Investigation' Report. The City does not anticipate taking any further action concerning the matters raised in the Complaint or Investigation Report. Therefore, the enclosed documents are ready for distribution pursuant to the Arizona Public RecordsLaw,

Thank you very much.

Very truly yours,

2r~'~

Denis M. Fitzgibbons'

·DMF:tlv Enclosure

denis@fitzgibbonslaw.com

1115 E. Cottonwood Lane - Suite 150· - Casa Grande, Arizona 85122-2950 P.O. Box 11208 - Casa Grande, Arizona 85130-0148

Office: (520) 426-3824 - Facsimile: (520) 426-9355 - Website: www.fitzgibbonslaw.com

Denis Fitzgibbons

From:

Sent:

To:' Subject:

Karen Shaffer [Karen.Shaffer@maricopa-az.govJ Tuesday, May 25, 2010 9:22 AM

Denis Fitzgibbons

Revised Complaint

May 22,2010

Denis,

I want to formally document my complaint against Kevin Evans. First I want to make clear I'm not asking that anything related to Council Executive Session be violated and don't want anything from Executive Session revealed to me. I regard aU council members highly and respect them Immensely for their service, intelligence, and insightfulness. I am not complaining about Council Members this is only about Kevin Evans.

I'm very concerned and upset. I have never filed a complaint about any supervisor during my career. During

the entire time in my positions, I have been very loyal to the City of Maricopa. Also, over the past year I have tried to remain loyal and not cause any issues for Kevin, but this latest incident forces me to document a complaint because of issues I've had with his behavior.

Friday (22 May 2010), he indicated there would be a change in the organizational structure and as part of the change portions of Support Services would be reporting to Patrick Melvin as Assistant City Manager and other parts to Roger Kolman. He said this was a political move because council wanted him to be able to justify Patrick's salary. Particularly disturbing was his comment that because of my medical issues he told council it would help take pressure off of me for IT and HR to report to Patrick and for Facilities to report to Roger. He said that council had been asking him about my health because they had noticed a changed in my personality. that I wasn't as nice as I had been. He said he told them I was having some medical issues and talked about medication. He said it was council's suggestion that Support Services report to Patrick Melvin.

J am devastated that information I gave him" in confidence" related to doctor's appointments have made me look like I am unable to do my job due to medical reasons. I told him I felt bad that people thought I needed help doing my job and they felt medical issues were the cause. He told me I was doing a great job and had done a great job on the benefits presentation the previous night at council meeting. I asked him later if any part of my job was not getting done he said no. I don't believe council asked about my health, neither do I believe they suggested my department be divided up, nor parts of it report to Patrick and parts to Roger. I have serious trust issues with Kevin because on more than one occasion his behavior has struck me as potentially liable for the city.

A couple of months ago after I presented "Compensation Statements· in a staff meeting where the City Clerk assured everyone this was public information Kevin said to me a couple of days later regarding the "Compensation Statements" to "eighty six them", "they never happened". I wanted to confirm these were public documents since we created them in HR so I contacted the City Clerk and City Attorney's office to verify if the request was a violation of state statute. They confirmed it was and in fact it might be a felony. I did not destroy the documents.

After telling the council several times, that salaries were frozen, Kevin requested paperwork to increase the salary of 2 employees, these were not promotions. These increases were for people reporting to him. I asked him why for one of them and he said it was an agreement he made with her when she started to work. I checked her offer letter and there was no indication that there was an agreement. We didn't discuss the other person we were simply told to make her salary the same as Paul Jepson's. It made me uncomfortable because it appeared we weren't adhering to the standard we'd published particularly since the persons receiving the increases reported to him and were responsible for the budget. These increases amounted to approximately $10,000.00, in a year when all other employees were feeling the freeze, not getting performance related increases and everyone told there were no performance related reviews or increases. I was concerned but we created the paperwork for Kevin to sign understanding he as the city manager has the ultimate last say and that the city manager has flexibility in going outside of policy.

Kevin also asked us on 2 separate occasions to put approximately 120 hours of additional vacation and sick time into one of the same individuals leave banks. This is over 2 times the amount given to any employee during their first year of employment. Again I was concerned but we did it understanding he as the city manager has the ultimate last say.

There seems to be no oversight for policy adherence and we can easily make our policies Irrelevant by changing them to accommodate only certain individuals. I've suggested many times to change policies so they can be administered accurately to aU employees not just a select few. When we do that It affects employee morale and trust.

Kevin has made derogatory comments about women In front of staff and staff has made comments to me about his behavior, comments about my hair looking like I stuck my finger in a Ught socket, constantly uses offensive language (even his Executive Assistant complained about 'people cursing" and though it wasn't specifically about him it's hard to ask others to do what they don't see management doing', makes comments about council members In staff meetings that make us feel uncomfortable, and mentloned men's private parts "wangers" in discussions with me. J've asked Kevin to tone down his language but he seems to persist.

I haven't said anything to his superiors for fear it would create issues between Kevin and I, Kevin and the council, and me and the council, and for-fear Kevin would retaliate in some way. One Director indicated that Kevin ask them to violate state statute, another Director feels demoralized. They are fearful for their Jobs and don't feel they can go to anyone about his behavior. Until this point so did I. I mention It now because this craziness has to stop at some point and this latest incident has made it obvious to me that Kevin feels he can say and do anything. There are other areas where his behavior has appeared offensive, potentially illegal, unethical, and bizarre but these are recent incidents I remember. Normally I try not to keep a record of people faults because we're alt fallible and I don't want to cause more stress.

His discussing my "personal-private" medical information, taking away work responsibilities from me based on his perception that I'm unable to perform my job because of medical issues and making an employment decision based on it is incredibly inappropriate and may have even violated HIPAA and ADA. His telting me this is also incredible. It shows he has no understanding of what is appropriate to say and when. I am beyond upset and disappointed.

He doesn't use our department's expertise to develop policies to ensure consistent processes neither does he seem to want any documentation to that effect. I have been working on modify our personnel policies since Kevin came to more accurately reflect what they should be and correct some inaccuracies in the policies adopted by the City Council prior to my coming on board. Per his request last year I obtained the City of Avondale's policies to modify them and possibly use some of them for the City of Maricopa. This would be the 3rd iteration of modify our policies. He didn't want to have them approved individually by council but as a whole. He asked that I send them to the directors for input. I did. After incorporating their comments into the documents I asked if he wanted directors to review them again he said no he would review them and get back to me. That was several months ago. We've given him policies that he requested over a year ago, IT policies, cell phone policies, etc. to set up forward thinking processes and Kevin seems uninterested. Any answer is better than no answer for months and years. The point is we are unable to accomplish many things that we could because Kevin seems unable to understand or make a decision. He doesn't normally as for input from HR, IT or Facilities for decisions or changes in those areas and yet many negative issues could be avoided if he did. Some of his direct reports feel undermined, humiliated, micro-managed, and undervalued. Some have been seeking other employment.

He receives a review yearly but for 2 years he has not allowed HR to implement a performance evaluation system for city staff and consistently said no to requests to allow managers to do performance reviews. Employees with the City have had 1 performance review since its incorporation and that was May of 2008.

I have done the job I was asked to do and taking away responsibility makes me look and feel incompetent. Based on Kevin'S reasoning and comments this situation is awkward to say the least. Initially Kevin said Support Services would be comprised of departments that supported the entire City, i.e., HR, IT, Facilities, and possibly Fleet management. I don't understand why except for the reasons Kevin stated, that has changed. I feel

penalized because of a decision Kevin made (Patrick Melvin as Public Safety Director then Assistant City Manager) came back to haunt him and he went for the "jaw hanging fruit" to try to justify his decision. Our department

supports all departments equally and I have not seen a municipal organization model that has HR, and IT report through the same chain as Fire and Police. I respect Patrick and Roger and ultimately Kevin will have the ability to make life hard for me regardless of who I report to but I want to go on record with this complaint. He continues to state that he has over 30 years experience in city management but when it comes to adhering to personnel policies, etc., he seems oblivious or not willing to change them in the appropriate way (through council approval), or unconcerned about them unless they agree with what he wants to do.

I would like Kevin and his supervisors given a copy of my complaint. I would also like to give Kevin an opportunity to discuss his actions with his supervisors, have some assurance that no one in my department will be subject to doing anything that goes against the public trust, and that there will be no negative repercussions as a result of this complaint and no personnel action changes related to my status, responsibilities, who I report to and who reports to me unless the entire department reports to an independent source other than the City Manager temporarily, perhaps the City Attorney. I realize this will make Kevin uncomfortable and do some damage to our interaction but I feel strongly or I would not make this complaint. I'd like Kevin supervisors to encourage him not to make decisions based

2

on the things he stated to me and rethink his proposed organlzattonal structure so I am not penalized for medical issues. We all want to feel we can trust our managers to do the right thing and that's lacking right now.

Sincerely,

Karen Shaffer

Karen Sijaffer, CPM Support Services Director (HR, IT and Facilities)

City Of~ricopa 45145 W. adison Ave. P.O. BOX 10 Maricopa, AZ 85139

p: 520/316-6806

f: 520/568-9120

c: 520/280-6381 www.maricopa-az.gov

Follow us on Twitter: MyMaricopa

Subscribe to receive Maricopa updates in your inbox

The City of Maricopa will be open, responsive and accountable while serving the public with integrity.

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June 30, 2010

Denis M. Fitzgibbons Tina L. Vannucci

Fitzgibbons Law Office P.L.C. 45145 West Madison Avenue Maricopa, Arizona 85239

Re: Complaint by Karen Shaffer Against Kevin Evans

Dear Denis and Tina,

As you know, Support Services Director Karen Shaffer filed a complaint containing several allegations against City Manager Kevin Evans. The City has asked me to investigate Shaffer's allegations. As a part of my investigation, I interviewed Shaffer, Evans, several City employees, and a City Councilmember. This letter discusses Shaffer's allegations, Evans' responses, and my factual findings.

Background

Shaffer began working for the City in November 2006 as the Human Resources Manager.

Evans began working as the City Manager in January 2008. Prior to his employment with the City, Evans served as the City Manager and worked in public management for several municipalities. In 2008, Evans promoted Shaffer to Support Services Director. As the Support Services Director, Shaffer currently oversees three departments: Information Technology, Facilities, and Human Resources.

Evans' and Shaffer's relationship was, in the beginning, a good one. According to Shaffer, Evans seemed open to ideas and shared his management experience. Evans promoted Shaffer and increased her salary. However, Shaffer has concerns regarding Evans' instituting changes in the organizational structure and moving employees to different positions, without first discussing the changes with Human Resources. Shaffer also believes that Evans began making decisions that contradicted City policy.

Shaffer filed a complaint against Evans on May 25, 2010. In the complaint, Shaffer alleges that Evans discussed Shaffer'S medical condition with the City Council, told Shaffer to destroy public documents, increased the salaries and leave banks of certain employees during a salary freeze, made derogatory comments toward women, failed to follow City policies, and

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Denis M. Fitzgibbons Tina L. Vannucci June 30, 2010 Page 2

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refused to pass updated policies or complete performance evaluations. Each of these allegations, and any new ones that surfaced during my investigation, are discussed below, along with Evans'. responses and my factual findings.

Disclosure of Shaffer's Medical Condition to Council

Allegations from Shaffer

Shaffer alleges that Evans has been aware for some time that she has a medical condition because it has come up on several occasions. Approximately one year ago, she claims that she approached Evans to tell him that she needed to go to the doctor. Evans asked if Shaffer was okay, and Shaffer told Evans that she did not want to talk about it. Evans told Shaffer that she could tell him if she wanted. Shaffer felt that Evans was overly inquisitive. A few months later,

. Shaffer's doctor told her that she needed support for her back. Shaffer asked Evans if she could use a different chair to provide back support, and Evans allowed it. One to two months ago, Shaffer had an MRI performed. Shaffer sent Evans the MRI report and indicated that she would be gone one to one-and-a-half hours each week. Following this, Evans sent Shaffer emails in which he said that his prayers were with her and to let him know if she needed anything.

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On May 21, 2010, Shaffer alleges that Evans showed her a new organizational chart.

Under the new structure, Shaffer would no longer oversee the Facilities Department and would report to Assistant City Manager Patrick Melvin; instead of Evans. Evans told Shaffer that the change was taking place because Council was concerned about her health, and that Council members had indicated that Shaffer's personality had changed. Evans told Shaffer that he informed Council that Shaffer was having medical issues and was on medication. Evans also told Shaffer that she would no longer oversee the Facilities Department in order to take some pressure off of her. Shaffer asked if Evans felt that she was not doing her job. Shaffer claims that Evans said the reorganization was more of a "political move." Support Services was moved under Melvin's supervision because Council felt that he was makingtoo much money, and there was a need to justify his salary.

Shortly thereafter, Shaffer claims that she approached Evans and told him that it was not appropriate for him to be discussing her medical issues with anyone. Evans said that the Council had noticed achange and that lots of other people were also asking about her. Shaffer asked him who else had asked about her. Evans responded that perhaps he had said the wrong thing. Shaffer asked Evans why hewas moving her to report to Melvin, and she claims that Evans told her that she had been "acting weird" and had "thrown a couple of fits." Shaffer was surprised by this accusation and insisted that she remains calm in all situations. Shaffer told Evans that he seemed tobe saying she was out of her mind. Evans said "You better .... Well this move is gonna happen."

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Denis M. Fitzgibbons Tina L. Vannucci June 30.2010 Page 3

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Shaffer claims that she has not discussed her medical issues with any other City employees. Shaffer thinks that the only way the Council would have found out about her medical condition was from Evans.

Shaffer does not want to report to Melvin. Melvin used to be the Chief of Police. When Evans came to work for the City, he promoted Melvin and gave him additional responsibilities. Shaffer believes that Evans made a mistake in paying Melvin so much money and now he has to justify his actions. Shaffer does not believe that Social Services should be reporting to a policeman, someone who knows nothing about human resources or information technology. Instead, Shaffer believes that Social Services should be an independent department and should not have to report to anyone or entity.

Response

Currently, all directors report to Evans. In order to lessen Evans' heavy workload, give more responsibility to the Assistant City Managers, and justify the Assistant City Managers' salaries, Evans, at the direction of Council, changed the reporting structure so that most directors would report to the Assistant City Managers. Under the new organizational structure, Shaffer will report to Melvin. Additionally, the Facilities Department, which consists of two people. the Facilities Manager and a janitor, will be moved under the Community Services Division, because Evans feels it is a better fit in that Division.

Based on his observations of her behavior, Evans has asked Shaffer ifshe is "doing okay" on at least three occasions. Shaffer said that she was fine but that her condition was made worse by stress. Evans has asked Shaffer if there is anything that he could do or any accommodation that could be made to help her. Shaffer has always rejected Evans' offers of help. Evans has also had several employees and Council members ask him if Shaffer is "doing okay" based on their observations of Shaffer's behavior and mannerisms. Employees have also asked Evans if Shaffer is okay because they have seen her sitting in her office with the lights off all day.

Out of the blue one day, Shaffer sent Evans a doctor's report. Evans could not read the report, but he understood enough to know that Shaffer was in pain. Evans asked Shaffer if there was anything the City could do to make her more comfortable. Evans says he has never shared anything on the medical documents with anyone, in part, because he does not understand it.

On May21, 2010, Shaffer went to Evans' office for a scheduled one-on-one meeting.

Evans and Shaffer discussed several issues related to Support Services. At the end of the meeting, Evans showed Shaffer the new organizational structure and told her that the change would be implemented soon. Evans told Shaffer that Council wanted Evans to focus on economic development and to give Melvin additional responsibilities. Evans told Shaffer that she would be reporting directly to Melvin and that Facilities would be moved to Community Services because it made sense for it to be there. Evans assured Shaffer that the new structure

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did not eliminate Shaffer's access to Evans. At that point in the conversation, Shaffer appeared to stop listening. Shaffer asked Evans if the reorganization was because of her medical condition. Evans assured Shaffer that the reorganization had nothing to do with her medical issues but said that several people had expressed concerns about Shaffer's health, even Council members. Shaffer then asked if Evans felt she was not doing her job. Evans said that was not the case, and in fact, she had done a great job with a benefits presentation the night before.

Later that day, Evans clarified with Shaffer that he had not discussed her medical issues with the Council. He told her that over the past year, several people, including Council members, had approached him and expressed concern about Shaffer's health. Shaffer wanted to know why people were asking about her. Evans reminded Shaffer of several outbursts she had made at work. Shaffer denied ever having any outbursts.

Findings

Based on my interviews and my own observations, I believe Evans is telling the truth.

That is not to say that Shaffer is lying about her perception of the events. However, I believe she is very sensitive to how her medical issues affect her job and how she is perceived in light of an obvious medical condition. I believe that this likely led to her erroneous conclusion that the reorganization is taking place because of her medical condition.

My conclusion is supported by my interviews with those most closely involved in the reorganization. Assistants to the City Manager, Nicole Dailey and Paul Jepson, who are involved in nearly everything Evans does, confirmed the legitimate reasons Evans gave for the reorganization. They also confirmed that Evans has never mentioned Shaffer's medical condition to them, let alone as a basis for the decision to reorganize the City'S reporting structure. Furthermore, in his discussions with Melvin, one of the people most impacted by the reorganization, Evans never indicated that Shaffer'S medical condition was the reason for the reorganization, nor did he disclose that Shaffer had a medical condition or what it was. It is Melvin's understanding that the reorganization is happening so that Evans will have fewer direct reports and he can perform other duties.

I interviewed several City employees, in addition to Dailey, Jepson, and Melvin, and each one said that Evans had never discussed Shaffer's medical condition with them. Even Councilwoman Julia Gusse, who, as discussed below, has had several issues with Evans, stated that she never heard Evans discuss Shaffer's medical condition with anyone. However, several people I interviewed did tellme that they had expressed concern about Shaffer to Evans and asked if she was doing okay, based on observations they had made of Shaffer's behavior.

In sum, I conclude that Evans has not engaged in any inappropriate behavior related to Shaffer's medical condition. My investigation shows that he did not discuss Shaffer's health with others, and the reorganization is motivated by legitimate business concerns.

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Destruction of Documents

Allegations

Shaffer alleges that Evans asked her to destroy public documents. Shaffer claims that at a staff meeting, she presented compensation statements, which were documents she had created for each employee, detailing the total amount of money the City spent on the employee, including salary, benefits, vacation and sick leave, taxes, and social security. Shaffer wanted to give each employee a copy of her or his statement so that the employee could see what the City paid each year to employ her or him. Several employees at the staff meeting expressed concern regarding the documents, including a concern that, if the statements were published, the public would think that City employees were making too much money.'

A few hours after the staff meeting, Evans allegedly approached Shaffer and told her:

"Eighty-six those documents. They never happened." Shaffer took this to mean that Evans wantedher to destroy the documents. Shaffer did not ask Evans for clarification and did not say anything to Evans about this instruction,

Shaffer, allegedly concerned thar Evans had asked her to destroy public documents, contends that she contacted the City Clerk and the City Attorney to determine whether destroying the documents would violate the law? City Clerk Vanessa Bueras told Shaffer that, based on what Shaffer was telling her, destroying the documents would violate the law and that she should not do it. Based on her conversation with Bueras, Shaffer reports that she retained the documents ..

Shaffer reports that she also spoke with Assistant to the City Manager Dailey .: Shaffer posed a hypothetical to Dailey, asking her what she would do if someone asked her to destroy documents. Dailey said she would contact Evans or the City Attorney. Shaffer suggested that the person who asked her to destroy documents was Evans. Dailey told Shaffer that she did not want to be involved.

A few days later, Evans told Shaffer that he did not want to send the compensation statements out at that time and that they should probably not send them out until after the election. Evans said he had asked Shaffer to "eighty-six" the documents because there were errors in the documents. Shaffer believes that Evans learned from Dailey that Shaffer was upset that Evans had asked her to destroy documents and was trying to cover up his request.

I During her interview, Shaffer told me that these were in draft because she was still reviewing them. However, after our meeting Shaffer emailed me to say that she did not consider the documents drafts, but did feel they needed to be reviewed again before they were published to the employees.

2 Because my role is purely investigatory, I asked Shaffer not to share the content of her conversation with the City Attorney in order to preserve the attorney-client privilege.

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Response

When Shaffer presented the compensation statements at the staff meeting, several employees, including Evans, were shocked that Shaffer created such a document, because no one had asked her to create it, and all the information was publicly available from other sources. Furthermore, the documents contained several errors. By way of example, there was a column that showed employee bonus pay, but City employees do not receive bonus pay.

Because the documents contained several errors, and because an election was approaching, Evans felt that distribution of the documents should be placed on hold. Evans approached Shaffer and asked her to "deep six" the documents for the time being.' By using the term "deep six," Evans was asking Shaffer to place the documents on hold, not to destroy them. Evans later edited the documents and showed them to Kelly Johnson, the person who created them for Shaffer, pointing out what was wrong with the documents and asking her to fix them. Johnson said that she would fix them.

Evans believes that, even though he did not ask Shaffer to destroy the documents, there is no need to preserve inaccurate documents. Furthermore, even if Evans had asked Shaffer to destroy the paper version of the documents, the electronic version of the documents would still exist.

Findings

I do not believe that Evans intended for Shaffer to improperly destroy any public documents. However, I do see how there may have been some confusion regarding Evans' request Evans' request that Shaffer "deep six" the documents could have come across to Shaffer as a request that she "eighty-six" the documents. Furthermore, "deep six" can mean to bury, to discard, or to get rid of something.

Bolstering my conclusion that Evans did not mean for Shaffer to destroy the documents is the fact that not a single person I interviewed had ever been asked by Evans to destroy any documents. Additionally, these witnesses, including Shaffer, were not aware of any situation, other than the one alleged by Shaffer, in which Evans asked any City employee to destroy documents.

Shaffer's response to the situation also calls her credibility into question. As a human resources professional, if Shaffer believed that Evans was asking her to destroy documents, she should have discussed the issue with Evans at the time it occurred; had she done so, the confusion likely would have been alleviated. Additionally, discussing the situation with Evans'

3 Evans told me that he did not know what it meant to "eighty-six" something until a few weeks ago, when a child at a game asked to be number 86. A parent informed Evans that to "eighty-six" something means to get rid of it.

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assistant, which she admits she hoped would gel back to Evans, is entirely inappropriate. Any such conversation should have taken place with Evans directly or with a Council member or someone else with authority to handle the matter.

While I do not think that Evans asked Shaffer to destroy documents, I do think that he could have better communicated with Shafter. I do not find, however, that Evans violated any City policy or legal requirement.

Increases in Leave Banks and Salaries for Certain Employees Despite A Budget Freeze

Allegations

Approximately one year ago, the City hired Cynthia Sneed as the Director of Financial Services. Sneed has approximately 13 years of municipal finance' experience. At the time the City hired Sneed. the City had frozen salaries and eliminated pay increases, absent promotion. Despite the pay freeze, Evans approached Shaffer, after Sneed had been working for the City for several months, and told her that he had just remembered he promised Sneed a 5% pay increase. Evans asked Shaffer to process the increase.

Shaffer believes this was improper for several reasons. Sneed herself is responsible for working on the budget and told several people that all salaries were frozen and there would be no raises, absent promotion. Shaffer thought it was odd that Evans gave the person who has control over the City's finances a pay increase. Shaffer was concerned that such actions could affect employee morale.

Shaffer also alleges that Evans asked Humari Resources to put additional leave in Sneed's leave bank on two occasions. On the first occasion, Evans asked Shaffer to put extra vacation and sick time in Sneed's leave bank. Evans said that this was agreed to in Sneed's offer letter. Shaffer later checked Sneed's offer letter, but there was nothing in the letter discussing additiona1 leave time. On the second occasion, Evans asked Shaffer's administrative assistant to put even more time in Sneed's leave banks.

The other employee whose salary was increased despite budget freezes was Assistant to the City Manger Dailey. When the Director of Community Services left the City, Dailey served as the Interim Community Services Director. While she was in that position, Evans increased Dailey'S salary to reflect the change in her responsibilities. When the City hired a new Community Services Director, Dailey went back to her previous position, and her salary was brought back down to where it had previously been. Shortly thereafter; Evans raised Dailey's

'. salary so that she would be earning the same amount as Assistant to the City Manager Jepson.

Shaffer thought that this was improper due to the budget freeze and the fact that Jepson has 20 years of experience, while Dailey, who is in her mid-twenties.has relatively little experience.

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Response

When the City hired Sneed, Evans started her at a lower salary than the other directors and promised her that, if she performed well, she would receive some additional leave and a 5% pay increase to bring her in line with the other directors. It is Evans' practice to start his direct reports at a lower salary and provide them with a small increase if they perform well. It is also common practice to provide incentives, such as additional leave time, to recruit well-qualified individuals. Sneed later reminded Evans of his promise, and Evans asked Shaffer to process the increases. Evans does not recall asking for a second leave bank increase, but says that may have happened if Human Resources processed only additional vacation leave and not sick leave, or vice versa. Prior to her complaint, at the time, Shaffer never questioned Evans' actions with respect to Sneed.

Evari.s responds that he properly raised Dailey's salary in order to correct a pay disparity.

Dailey was earning several thousands of dollars less than Jepson. Dailey and Jepson have the same amount of experience in City government and the same educational background. Jepson worked as a teacher for 20 years prior to working for the City, but his job with the City was his first in government work. Evans appropriately fixed the disparity because he felt it was unfair for Dailey to be making significantly less than Jepson. Evans recalls discussing the pay disparity with Shaffer, and at that time, she agreed with Evans' decision to increase Dailey's pay.

Findings

I do not believe that Evans' actions were wrongful. As the City Manager, Evans has significant authority with respect to personnel decisions. The City Code provides:

The city manager shall be the administrative head of the government of the city under the direction and control of the council. The city manager shall be responsible for the administrative of all affairs of the city which are under his control.

Maricopa City Code, § 3~2~1(H). Additionally, the City'S personnel policies provide:

The City Manager shall be appointed by the City Council and shall serve as the chief administrative officer. The City Manager shall be responsible for the proper administration of all affairs in the City including implementing and administering these Personnel Policies and Rules and otherwise appointing, compensating, reassigning, disciplining and removing employees of the City as necessary and prudent.

City of Maricopa Personnel P olicies and Procedures, § 1.3.1 (c). The personnel po licies further referto the City Manager as the Personnel Officer. Id. at § 1.3.4(a). I have not found a Code

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provision or policy that prohibits Evans' actions. Accordingly, I believe that Evans correctly exercised his managerial discretion with respect to Sneed's and Dailey's compensation.

Further, it is prudent of Evans to start an employee at a lower salary and give her an . increase only if and when she has proven herself. Furthermore, Evans was correct to fix the pay disparity between Dailey and Jepson, Even Jepson feels that it was only fair that Dailey make the same amount of money as he does. According to Jepson, he and Dailey have the same amount of experience in municipal government (and Dailey perhaps has even more), and they both work equally hard, performing similar duties,

Shaffer also admits that, as the head of Human Resources, she never questioned Evans with respect to any of the behavior she now alleges was wrongful, If Shaffer truly believed that Evans was in some way harming the City, it would have been incumbent upon her to raise those issues at the time,

Derogatory Comments Toward Women

. Allegations

Shaffer alleges that she has heard Evans make derogatory comments about and to women and that she has also had female employees complain to her about derogatory comments by Evans. For example, if a group of women are talking together, she claims Evans will make comments such as "there's a group of women having a hen party." Shaffer claims that Evans passes this off as a joke, but female employees have expressed their frustration with this behavior to Shaffer.

Shaffer also alleges that Evans has made comments that are sexual in nature. She claims that Evans has referred to male private parts as "wangers" and that he has also discussed employees' sex lives. For example, she claims that he has referred to an employee as a slut. Additionally, one of the employees I interviewed told me a story about Evans' last birthday party. Dailey made a slide show and one of the pictures was of Evans in a diaper. According to this employee, Evans asked Dailey, "When is the last time you sawme in my underwear?"

Shaffer also alleges that Evans curses a lot, which makes employees uncomfortable.

Response

Evans confirmed that he has referred to a group of women standing around talking as a "hen party." For example, when he sees a group of employees gossiping, he has said "The hen party is over. Let's go back to work."

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However, Evans denies ever calling an employee a slut or discussing employees' sex lives. Evans discussed an affair between two employees, but for business, not gossip, reasons. Evans reports that he has never used the word "wanger" in his life. If Evans has ever made reference to male private parts at work, it was in the context of an incident in which an employee sent pictures to a citizen of his private parts on his cell phone. Evans further denies ever making any reference to anyone seeing him in his underwear, and he does not recall any pictures of him in a diaper at a birthday celebration.

Evans admits that he has had a problem with cursing in the past. He has tried to stop using curse words, but has slipped a few times. Evans has also asked his staff, many of whom are also guilty of cursing, to stop. .

Findings

Evans has said some things that could be construed as inappropriate. Evans has called a group of women standing around gossiping a "hen party." Also, during my interview it came to my attention that Evans has referred to Economic Development Director Danielle Casey as "Economic Development Barbie." Casey told me that this stemmed from a mentoring conversation Evans had with her. Casey, who is small and blonde, and young compared to most professionals in her field, asked Evans how she could work on building respect within and outside the City. Evans said that there would be some people who look at her as a Barbie doll, but that he would help her establish herself so that she would gain respect. After this conversation, Evans referred to Casey as Economic Development Barbie on a couple of occasions, but later told Casey that he would not use that name because people may not understand the context. Based on these findings, Evans should be more careful about what he says and how his words may be perceived.

1 cannot substantiate any of the other comments that Shaffer alleges Evans made. Several of the people that Shaffer said would have information about Evans making derogatory or sexual comments toward women either had never heard Evans make any such comments or could not recall if they ever heard him make such comments. Likewise, no one ever recalls Evans discussing employees' sex lives or calling employees sluts. Additionally, Dailey, the person at whom the underwear comment was allegedly directed, does not recall Evans making such a comment, nordoes she believe he would have. Accordingly, and in light of my previous findings, I do not believe that Evans made these comments.

To the extent Evans is required to discuss matters of a sexual nature in his role as City Manager, he should not be penalized for those discussions. It is my understanding that there was an incident in which two employees had an affair, resulting in the termination of at least one of those employees and another incident in which an employee sent pictures of his private parts to citizens. When I asked employees I interviewed whether they had ever heard Evans discuss employees' sex lives or talk about male private parts, they were shocked that I asked such a

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question. After thinking for a moment, a couple of employees recalled Evans discussing an affair between two employees. However; those witnesses said the discussion was solely for business-related purposes and that Evans discussed the affair in a matter-of-fact way. As the City Manager, Evans would necessarily be involved in and required to speak about those incidents. Because Evans' actions were in furtherance of his role as City Manager, I do not believe his actions were wrongful.

Evans has admittedly had a problem with cursing in the past, and employees have talked to him about it. However, Evans is making an effort to watch his and other employees' use of curse words in the office.

Negative Treatment of Minorities

Allegations

During our conversation, Shaffer implied that Evans harbors negative feelings toward Hispanics. I asked Shaffer if Evans had ever made any direct derogatory comments about minorities. The only one she could think of was a comment to the effect of, "All the minorities are suing each other, and I'm not protected." Shaffer believes this shows that Evans is uncomfortable with civil rights laws. Shaffer also claimed that Evans asked a Councilperson whether she was part Indian.

Shaffer said that some Hispanic employees have said they feel they are treated differently than Caucasian employees. When asked who felt this way, Shaffer named Julia Gusse, who was recently elected to the Council. Shaffer asked that I speak with Gusse about her experiences.

Conversation with Julia Gusse

Julia Gusse was employed as a Planning Administrative Assistant before Evans became the City Manager. Gusse has a military background and a college degree. In December 2008, Gusse, who is Mexican-American, applied for a position in City Hall. Gusse asserts that the position was given to another less-qualified Caucasian individual. Gusse believes that this individual received the position because she is friends with Evans and Melvin; in fact, Gusse .believes that everyone in upper-level City positions received their positions because they are all friends. If someone is not a part of the "in-group," they will not get an upper-level position. Gusse filed a complaint, alleging that she was not hired based on her race; however, she ultimately dropped her complaint.

In June 2009, the City laid off Gusse. Gusse admits that she has no idea how she was selected for the layoff; she only knows that Evans made the final decision. Evans encouraged Gusse to apply for other open positions within the City. Gusse could have applied for a position in the library, however, the position paid half of what Gusse earned in her other position with the

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City. Furthermore, it was Gusse's understanding that, under the City's policies, if she took the job in the library, she could not apply for another position until she had finished her probationary period." Evans told Gusse that other higher-paying positions would soon be open, and Gusse did not apply for the library position so that she could apply for the higher-paying positions. Gusse later applied for several positions but was never interviewed for any of them. Gusse believes that Evans discriminated against her by failing to interview or hire her for any of those positions.

Gusse is also upset about an incident in which a group of school children marched out of school and to City Hall to protest SB 1070, the recently enacted state immigration law. Gusse learned, via a City Hall employee's post on Facebook, a social networking website, that City Hall was-placed on Jockdown when the children arrived. Gusse, who was upset that City Hall would be locked down just because children were protesting, contacted members of City Hall to discuss the lockdown. Gusse learned the City was sending out a press release regarding the students. Gusse felt that the press release should include .something about the lockdown; however, Gusse was informed that there was no lockdown. Gusse feIt this was wrong and tried to contact Evans.

Evans spoke publicly about the children protesting and his thoughts on SB 1070. Gusse believes that Evans should not have been sharing his views on the situation or the law. At 4:30 onthe day of the protest, Evans finally contacted Gusse. He admitted that City Hall had been placed on lockdown, but said that a secretary had made the decision. Evans said that the City would send out a new press release stating that City Hall had been on lockdown during the protest. Gusse said that she just wanted the truth out there. Gusse also told Evans that he should not be sharing his personal beliefs on the protest or the law. Evans said that he only talked about his experiences marching in protests in the 1960s and indicated that the children had no ideafor

whatthey were marching. .

A couple of weeks later, Gusse was elected to the City Council. Gusse was very vocal during the election about her belief that Evans was engaging in discrimination and that her goal was to get rid of him. After Gusse was elected, Shaffer approached Gusse and told her she was upset with City Hall. Shaffer said that when Gusse got onto the Council, she was going to file a complaint. Gusse told me that she and Shaffer have not talked about Shaffer's complaint. or the allegations of her complaint, since then. However, they have spoken generally about human resources issues.

4 Gusse believes that the way her situation turned out is particularly unfair in light of what happened with another Caucasian employee, John Nixon. The City hired Nixon as a grants writer, and during his probationary period, Nixon applied for another position with the City, and he was interviewed for the position. As soon as his probationary period ended, the City hired Nixon into the other position. Although Nixon was not hired until after his probationary period, Gusse feels that Nixon should not have even received an interview during his probationary period. This situation is discussed more fully under the "Failure to Follow Policy" heading.

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In the end, Gusse told me that all of these events may just be coincidental and not at all motivated by discrimination.

Response

Due to budget restrictions, Evans had to eliminate several positions in the City. The City decided to make cuts in Development Services. Evans asked Shaffer to create a list of employees whose positions should be eliminated pursuant to the policy of first in, last out. Shaffer created the list, and Ousse was on that list. Ousse later claimed that the decision to eliminate her position was discriminatory, but she never filed a charge of discrimination.

The City offered Gusse a position in the library, but she turned that position down. Evans . may have also discussed a library manager position with Gusse, but he does not recall discussing the fact that any other higher-paying positions would soon be available.

Human Resources handles the front-end of the job application process. Evans is not involved in the decision to .interview applicants, applicant interviews, or the decision to hire an applicant, unless it is for a position that reports directly to him. Evans was not even aware that Gusse applied for other positions, he was not involved in any decision not to hire her, and he was never asked for his input with respect to any of the positions for which Gusse may have applied.

Evans was not in the office at the time the schoolchildren left school to protest SB 1070.

Although the children were protesting the law that day, they did not go to City Hall to protest the law. The children went to City Han to try to get one of their friends, who had run in front ofa car and been arrested during the protest, released from jail.

Before Evans was aware that the children were not at City Hall to protest SB 1070, Evans said that the children needed to talk to the state legislators who passed the law, not City Hall. Referring to the Vietnam war, Evans said that these types of protests did not work for the youth of the 1960s, who performed walkouts to protest the war, Evans believes that Shaffer told City employees that Evans was referring to civil rights when he made these statements. Evans was only ten years old when the civil rights walkouts took place, and he is not sure why Shaffer jumped to the conclusion that he was referring to civil rights protests.

With respect to the lockdown, a police officer who was at City Hall suggested that the front doors to the building be locked. The doors were locked for a total of 10 miriutes before Assistant City Manager Coleman called the Police Chief to ask if the doors could be unlocked,

Evans insists that he is not biased regarding race. He has promoted at least two Hispanic employees in his short time with the City - the City Clerk and the Deputy City Clerk. Evans does notrecall ever saying that "all the minorities are suing each other" and stating that he was unprotected. Evans did have a conversation with a Councilmember in which he asked what race

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she was. Evans asked because a big deal was made about a Black female getting elected to the Council. The Councilmember told Evans that she was Black, Indian, and White. The

. Councilmember did not seem to mind Evans' question.

In her complaint, Shaffer said that Evans told her that her hair looked like she had stuck her finger in a light socket. Evans said that he never told her that. Evans does recall a day on

. which Shaffer wore her hair in a curly style. Evans told Shaffer that he liked her hair. He also told her that his oldest brother had curly black hair when they were growing up. Evans would sometimes say that his brother dried his hair by sticking his finger in a socket. Shaffer laughed at the story.

Findings

I do not believe that Gusse's layoff was racially motivated. Gusse was a fairly new employee, and the layoffwas only related to positions within Development Services. Under the first in, last out policy, it makes sense that Gusse was let go. Furthermore. while Gusse believes that Evans does special favors for his friends, this alone is not evidence of racial discrimination.

I also do not believe that Evans discriminatorily failed to hire Gusse into another position with the City. Gusse admits that she does not know how hiring or layoffs work within the City. It makes sense that Evans would not be involved in the early hiring stages and that he would also not be involved in any part of the hiring process for those individuals who do not report to him. Such micromanagement seems impossible at Evans' level. Accordingly, I do not think Evans even gave input as to whether Gusse should be hired, and therefore, could not have discriminated against her in the hiring process.

Evans' account of the "protest" at City Hall is believable. It does not make sense that the children would have been at City Hall to protest a law that the state legislature passed,and I believe that the children were there because the police had taken one of their friends into custody.

Not a single person I interviewed had ever heard Evans make derogatory comments to or about minorities. Additionally, Assistant City Manager Melvin told me that he is usually apprised of any complaints of racial harassment or discrimination, and he is not aware of any complaints that have ever been made against Evans in this regard. While Evans admits that he once asked a Council person about her race, there is no indication that this was improperly motivated. Accordingly, I cannot substantiate Shaffer's or Gusse's complaints.

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Failure to Follow Policy

Allegations

Shaffer believes that there are several situations in which Evans has failed to follow City policy. The first alleged incident involved an employee personnel file. Approximately six months after he started working for the City, Evans gave Shaffer a sealed envelope on two different occasions and asked her to put them in an employee's personnel file. Evans allegedly told Shaffer not to open the envelopes. Ms. Shaffer had never experienced anything like this; typically, documents placed in an employee's personnel file go through and are reviewed by Human Resources.

When the employee left his employment with the City, Shaffer realized that the sealed documents were no longer in the file and became worried because Evans had told her to put the envelopes in the file and they were no longer there. Shaffer later concluded that Evans had taken the documents out of the employee's file.

The second incident concerned the Community Services Director position. According to Shaffer, the City has a policy that prohibits probationary employees from applying for other positions within the City. The City hired John Nixon as a grants writer. Shortly after he was hired, Nixon expressed interest in the Community Services Director position. Evans wanted Nixon to apply for the position. Shaffer told Evans that Nixon was not permitted to apply until after his probationary period. Shaffer claims Evans said that Nixon was allowed to apply because Evans said he could.

Later, Evans sent Shaffer an email asking her to identify which policy prohibits probationary employees from applying for other positions with the City. Shaffer pointed to a policy that says that probationary employees are not eligible for employee benefits until after their probationary period. Evans agreed with Shaffer's interpretation of the policy and agreed that he could not hire Nixon at that time. However, as soon as Nixon completed his probationary period, Evans gave him the job. Shaffer felt that Evans had simply circumvented the rules by waiting until the probationary expired.

Finally, Shaffer shared an incidentin which she felt that Evans violated the City's bereavement policy. Evans' Executive Assistant, Jacqueline Shaulis, asked to take bereavement leave following the death of her father-in-law, Shaffer informed Evans that Shaulis could not take bereavement leave, because the policies do not allow bereavement leave for the death of an in-law. Evans allowed Shaulis to take bereavement leave anyway.

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Response

Evans did ask Shaffer to put sealed envelopes in an employee's personnel file. However, he later learned that these documents were not properly included in personnel files. Thus, Evans put the envelopes in his desk.

With respect to the Community Services Director position, after Nixon was hired as a grants writer, Evans discovered that Nixon had a vast amount of experience in parks and recreation management. Nixon served 18 years in the parks and recreation department in another Arizona municipality, including several years as the director. Nixon also had other experiences that would provide background for the Community Services Director position, including experience in special event planning and construction. When the time came to hire a new Community Services Director, Nixon expressed an interest in the position to Evans. In a discussion with Shaffer, Evans learned that the City could not hire Nixon until after his probationary period. Before the final interview, Evans did not expect Nixon to get the position. However, following the final interview, Nixon was the interview panel's unanimous choice. The panel consisted of Evans, Shaffer, Dailey, and two Councilpersons, and each panel member had an equal say in who received the position. The City hired Nixon after his probationary period expired.

Evans admits that he approved Shaulis' bereavement leave for the death of an in-law.

Evans believes that in-laws should be encompassed within the City's bereavement leave policy. In such a case, an employee will need to take care of the spouse whose parent has passed away. Evans will continue to approve bereavement leave for any employee who has had an in-law pass away until a new policy is passed encompassing the death of in-laws.

Findings

I do not believe that Evans engaged in any wrongful behavior with respect to the sealed envelopes. While it would be wise to keep Human Resources apprised of all employee issues, it is not required under the City's personnel policies or the City Code. Furthermore, the personnel policies make clear that the City Manager is the chief administrative and personnel officer for the City, and they give him vast discretion with respect to employee issues. Accordingly, I do not believe that Evans failed to follow any poJicies with respect to this issue.

I also do not believe that Evans failed to follow the City'S policies when he hired Nixon.

As an initial matter, I do not agree with Shaffer's interpretation of the policy. The policy to which I believe Shaffer is referring is City of Maricopa Personnel Policies and Procedures, §3.3.1, which provides:

,.!

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Unless otherwise stated herein, all employees when hired are subject to a ninety (90) day evaluation period, during which period unless otherwise stated, the benefits and rights stated in these policies will not apply.

It is my belief that "benefits and rights" encompasses things such as classified service, not the ability to apply for another position within the City. Certainly the general public, who is not entitled to the same "benefits and rights" as City employees, may still apply for a position with the City. Moreover, were Shaffer's interpretation of this policy intended, there was a much clearer way of writing such a policy, for example, "A probationary employee may not apply for another position within the City until the employee's probationary period has expired."

Further, such a policy would deprive the City of the ability to internally hire wellqualified employees into positions for which they are better suited. Nixon is acase-in-point. I do not think that this is the interpretation that was intended.

However, even if Shaffer's interpretation of the policies were correct, Evans' actions do not violate policy. Nixon was not hired until the end of his probationary period. Even under Shaffer's reading of the policies, Evans' actions did not violate any policy.

Nixon admittedly violated the City's bereavement policy by allowing Shaulis leave for the death of an in-law. Again. however, the personnel policies give Evans significant discretion with respect personnel decisions and administration of the policies. Evans should work on getting this policy changed if he does not agree with it. However, so long as he is willing to apply the policy consistently until the policy is changed, it should not be a significant problem for the City.

Failure to Update Policies

Allegations

The City's current personnel policies were approved by City Council under a previous City Manager. Shaffer believes that the policies are in need of updating. She recognizes that this is a time-consuming project but thinks that it can and should be done.

In late 2008 or early 2009, Shaffer gave Evans a first draft of updated personnel policies for his review. Evans asked Shaffer to send the policies to the directors for their review and comments. Shaffer did this and incorporated the comments into a second draft. Shaffer brought the issue up again at a staff meeting. Evans told Shaffer to send the draft to the directors a second time for further review and comments. Shaffer again incorporated the comments and sent a third draft to Evans. Shaffer heard nothing further from Evans. Several months later, one of the directors mentioned to Shaffer that the City of Avondale had great personnel policies. Shaffer obtained a copy of Avondale's policies and changed some of the wording to reflect that

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they were Maricopa's policies. Shaffer told Evans about the policies and asked Evans what she should do with them. Evans told her to send them to the directors for their review and comments. Shaffer incorporated the comments and sent the policies to Evans. It has been months since Shaffer sent Evans the policies. and she has not heard anything back from him.

Response

Each time that Shaffer has submitted draft policies, she has done a horrible job of cutting and pasting together other cities' personnel policies. Because the draft policies are in such bad shape, reviewing the policies has been burdensome for the directors. Accordingly, Evans asked Shaffer to submit draft personnel policies to the Personnel and Benefits Council Subcommittee following the most recent election. Evans believes that the Subcommittee will do a good job of fixing the policies in a comprehensive way.

Although he has asked Shaffer to submit policies to the Subcommittee, Evans does not believe that personnel policies are a priority at this point in time. The City, which is home to approximately 40,000 people, has 200 employees and has made several cuts over the past three years. Evans is amazed at the amount of work his employees do and feels that everyone is working hard to accomplish even the basic requirements of their jobs. Because the City is so short-staffed, Evans must prioritize and revising personnel policies is not at the top of his list.

Findings

Some of the individuals I spoke with have been asked to review Shaffer's draft policies in the past. These individuals told me that each time the policies have been sent out they have not been in a form that would allow for serious review. Shaffer's first draft of the policies appeared to have been very hastily put together. Another draft simply contained Avondale's policies, to

. which changes appeared to have been hastily made. "Avondale" still appeared throughout the document and many of the policies were not tailored to Maricopa's needs. These employees believe that the policies have not been updated because Shaffer has not put in the time it would require to prepare an adequate working draft.

I do not think that Evans engaged in any inappropriate conduct relating to the policy revision issue. After reviewing the policies, it is clear that they need to be updated to reflect the current size and state of the City. However, it is understandable that Evans and others have not had the time to focus on the policies, given spending cuts and heavy workloads. It is my belief that Shaffer would be best served by getting the policies to the Subcommittee. The Subcommittee deals specifically with personnel issues and the policies will need to go through the Council anyway.

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Demeaning and Belittling Employees

Allegations

Shaffer alleges that several of Evans' direct reports feel undermined, demeaned, and belittled. Shaffer specifically pointed to Development Services Director Brent Billingsley and Assistant City Manager Roger Coleman as employees who have felt belittled or demeaned by Evans.

I spoke with Coleman and Billingsley. Coleman does not feel that he has been demeaned or belittled. He believes that Shaffer is simply not experienced in the public sector and is not used to working for a boss who has limited resources. Evans is working with little to get a lot done, and at times, must exercise his authority to get things done. Billingsley said that, at times, Evans has made comments about work that upset him, but that he usually accepts the criticism, moves on, and tries to do a better job. Billingsley recognizes that everyone who works for the City is under a lot of pressure and that sometimes that pressure affects even Evans.

Response

Evans has never had any employee tell him that the employee feels demeaned or belittled. Evans has had misunderstandings with employees, but those misunderstandings have been resolved.

Findings

It appears that some employees do find Evans intimidating, but I do not find that Evans has violated any City policy or acted inappropriately. For the most part, these employees recognize that Evans is simply trying to do a good job. I did not hear of anything inappropriate or that would raise concerns. Accordingly, I do not find that Evans has done anything wrong in this regard ..

Violation of State Election Law

Allegations

During her interview, Shaffer told me about a situation in which Evans allegedly asked LeeAnn Schirato, the Deputy City Clerk, to violate state election law.

I spoke with Schirato about the situation. During the last election, the City Clerk was on leave and Schirato was in charge of ensuring that candidates submitted the proper paperwork prior to the election. Shortly before all the paperwork was due, the Mayor submitted his petition signatures. Schirato told the Mayor that she could not accept the signatures because he had not

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yet submitted his statement of organization. The Mayor believed he had turned in the document and suggested that Schirato lost the paperwork.

Schirato discussed the situation with Evans and Coleman. Schirato informed them that the Mayor would have to obtain all the signatures again because she could not accept the signatures until the Mayor filed his statement of organization. Evans asked Schirato if she was certain she did not have the paperwork and asked her if she could just accept the petition

, signatures and a new statement of organization. Schirato said she would not do that. 5

Response

Evans admits that he was not aware of this aspect of Arizona's election laws at the time

, this incident took place. He had just come from Texas, where the election laws are completely different. In their conversation, Evans asked Schirato, who knows the election laws, why the Mayor could not just submit the statement after he submitted the signatures. Once Evans realized that the law prohibited this, he believes that he asked Schirato to contact the Mayor, and apprise him of what he needed to do.

Findings

Ibelieve that this situation was just a misunderstanding, and Schiratoseemed to indicate that as well. At the time, Schirato felt pressure to accept the signatures, which is understandable given that she was temporarily serving as the City Clerk during a very important and busy time. However, I believe that Evans was simply unfamiliar with Arizona election law and was merely trying to figure out the best way to handle a situation in which both sides believed they were right.

Myconc1usion that Evans did not ask Schirato to violate election law is bolstered by my interviews with employees who work closely with Evans. These employees told me that Evans would never asked them to violate any law. Several admitted that they have disagreed with Evans' handling of certain situations, but said that they usually discuss those situations with Evans and reach a compromise. Those who have felt some action might potentially violate a law have informed Evans of that fact. and Evans has changed course ifhis actions could violate the law.

5 The Mayor later realized that he had not submitted the statement of organization, and he apologized to Schirato.

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Failure to Coml!lctc Pcrfol'mancc Evaluations

Allegations

The last performance evaluations for City employees took place in 2008. Shaffer believes that employees should regularly receive performance evaluations.

Response

Evans believes it is within his purview to decide whether and when performance evaluations will be conducted. Evans did not want performance evaluations completed last year because there was a salary freeze, and there would be no money attached to any performance evaluations. Evans believes that performance evaluations, in which some employees may be criticized in some way, wouldjustadd insult to injury after freezing salaries. Evans, however, has told Shaffer that performance evaluations will be performed sometime in the next fiscal year.

Findings

I agree with Shaffer that employee performance should be regularly evaluated even if pay raises are not being given. However, I do not think that Evans' actions violate any City policies or Code provisions. Accordingly, I do not see anything wrongful in his behavior.

Conclusion

This completes thefactual portion of my investigation. Should you need any additional information, please do not hesitate to contact me.

Sincerely,

48494107-7254, v. I

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