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FOR BERNALILLO COUNTY
Allegation of Sexual Harassment by Kelly Smyer Submitted by Strategic Solutions
April 2, 2011
Ms. Kelly Smyer has been employed as Assistant to Commissioner Michelle Lujan-Grisham (Comm. Grisham) since January 3, 2011. She is a part -time permanent employee of Bernalillo County (BC) and works (22) hours per week. Ms. Smyer is supervised by Comm. Grisham. On March 1, 2011, Complainant, Ms. Kelly Smyer, was interviewed by external Investigator, Rita Montoya, with Strategic Solutions. Ms. Smyer was accompanied by her Attorney, Ms. Rachel Higgins. (See Exhibit A-Audio CD) During the interview, Ms. Smyer alleged that she was sexually harassed by Commissioner Michael C. Wiener in the following manner: • On January 3, 2011, Comm. Wiener stood in the door way of her office and commented on two occasions “looking good”. She considered the comments to be directed at her and believes by the tone of his voice and the way that he looked at her that Comm. Wiener was talking about her physical appearance. • On February 8, 2011, while in Comm. Wiener’s office talking about County business, Comm. Wiener told Kelly Smyer a sexually offense joke, in the presence of his Assistant, Mr. Darrell Dady. The joke was: “did you know that the BC Commission now has a Wiener and a Johnson on it”? Ms. Smyer made it clear to Comm. Wiener that it was not appropriate for him to tell her that joke and left his office. On February 8, 2011, Ms. Smyer contacted Comm. Grisham to inform her about the joke and that she was offended by it. On February 8, 2011, following a BC Commissioners meeting, Comm. Grisham met with Comm. Wiener and put him on notice that the joke was offensive to Ms. Smyer and that he could not subject Ms. Smyer or any other BC employees to a hostile work environment. • On February 17, 2011, Ms. Smyer alleged that she was in her office working when she overheard BC Comm. Wiener and BC Comm. De La Cruz talking loudly. She heard Comm. Wiener shouting, “I can’t say that or Comm. Lujan-Grisham will tell me that I’m creating a hostile work environment”. Hilarity ensued and lots of laughter. Ms. Smyer felt he was belittling her, and not taking seriously the notice that Comm. Grisham had given him. Ms. Smyer entered the office suite and told Comm. Wiener that she didn’t appreciate that he was talking about a hostile work environment which was a private matter between Ms. Smyer, Comm. Grisham, and Comm. Wiener. Comm. Wiener then responded loudly, “Hostile work environment, you’re the one who is creating a hostile work environment. Everything was fine until you got here”. Comm. Wiener then apologized to her for speaking to loudly and Ms. Smyer responded, “You shouldn’t apologize for speaking too loudly but for the way that you choose to speak to women”. Shortly thereafter, Ms. Smyer reported the basic facts of the incident with Comm. Wiener to Ms. Heidi Warren, Assistant to Mr. Tom Zdunek, interim County Manager. She told her than an inappropriate comment had been made to her the week prior but she did not share the comment with Ms. Warren. Ms. Warren was very concerned and offered to get her a copy of the BC Sexual Harassment Policy. Ms.
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Smyer met Comm. Johnson in the hallway and he asked to speak with her. He asked if she was okay and stated, “He can be inappropriate, I’m so sorry this has happened to you.” She then returned to Ms. Warren’s office to wait for her but had to leave as she had to pick up her child. Ms. Smyer ran into Ms. Warren as she was leaving and was informed that she had requested a copy of the BC sexual harassment policy from the BC HRD but it was taking time to download and print it. Ms. Smyer left the office and immediately called Comm. Grisham and left a message that she had a conversation with Comm. Wiener and requested to speak with her as soon as possible. Comm. Grisham called at 5:45 pm that evening and Ms. Smyer gave her the details about what had transpired with Comm. Wiener. Comm. Grisham called her again later that evening to advise Ms. Smyer that she had just spoken with Comm. Stebbins and Mr. Tom Zdunek, BC County Manager, and that they were all concerned. Mr. Zdunek told Comm. Grisham that he knew how to handle these situations and that he was on it. Comm. Grisham asked Ms. Smyer to call Mr. Zdunek the following morning. Ms. Smyer called Mr. Zdunek the morning of February 18, 2011, and Mr. Zdunek called her back at approx. 10:00 am. He apologized to her for what happened and assured her that her job was safe. He outlined options which were available to her: a) Comm. Wiener wants to offer you an apology and he would be there when it happened, b) If she chose not to accept the apology, she could go through mediation and Mr. Zdunek would attend with her, or c) She could choose to file a complaint. Ms. Smyer asked for time to consider the options and they agreed to meet on Monday, February 21, 2011. On February 21, 2011, Ms. Smyer met with Mr. Zdunek and was told that Comm. Grisham had requested that all Commissioners attend sexual harassment training. He then told Ms. Smyer that he has been in touch with the BC Legal Department and they have advised him that there is nothing he can do to force a BC Commissioner to do something. Mr. Zdunek also told her that she spoke inappropriately to a th Commissioner and that she did not follow protocol and that for the good of the 10 floor to do what was right, and that if he was me, he would apologize to all of the people who were in the room when she approached Comm. Wiener. Ms. Smyer felt that all of the options that were presented to her on February 18, 2011, were no longer options available to her. She noted what Mr. Zdunek had asked her to do, and she left his office without any resolution. Ms. Smyer initially felt protected by Mr. Zdunek and that her complaint would be handled in accordance with BC sexual harassment policy. Mr. Zdunek told her that it would have been better if she would have waited until Comm. Wiener went into his office and to tell him privately that she didn’t like his behavior or his words. On February 22, 2011, Ms. Smyer saw Mr. Darrell Dady, Assistant to Comm. Wiener, and asked him to come into her office. She told him that she hoped that they could still have a good working relationship and he agreed that they could. That same day, Comm. Stebbins called Comm. Grisham and informed her “This matter was all over because Ms. Smyer had called and apologized to Comm. Wiener, and had admitted that she had lied about the “Wiener Johnson joke”. Comm. Grisham called Ms. Smyer to verify and Ms. Smyer informed her that she did no such thing. Ms. Smyer stated that it was total fabrication. NOTE: Ms. Smyer stated she is present at this interview to testify that she did not lie about the joke.
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Ms. Smyer felt that her character was being questioned and she was being defamed and that she was in an atmosphere where people were going to question her ethics. She felt powerless to do anything about it. She then called Comm. Stebbins on February 23, 2011, and informed her that she wanted to file a formal complaint. Ms. Smyer stated she has been called a liar by Comm. Wiener and considers that to be a form of retaliation. Comm. DelaCruz and Dolores Herrera are cold to Ms. Smyer since she made the report of sexual harassment. Now, Comm. DelaCruz stares and her and doesn’t speak. Ms. Herrera is also cold to her. Also, the door to the office suite where Comm. Wiener and Comm. DelaCruz and their assistants are located is now closed. There is a sign on their door. The action to keep the door closed sends a clear message to Ms. Smyer that she was listening in on a conversation. Ms. Smyer stated that it is not necessary to listen in when the comments were being shouted at her. Ms. Smyer keeps her office door open and is still exhibiting the same professionalism as before. She has done nothing wrong and and she will continue to behave in the same way she has always behaved. Regarding Mr. Zdunek’s handling of her complaint, Ms. Smyer feels that the options that Mr. Zdunek presented to her in the beginning of their dialog should have still continued to be a possibility. After Mr. Zdunek advised her that there’s little that he can make a Commissioner do, the emphasis shifted to Ms. Smyer and what she was supposed to do. Ms. Smyer has not observed any other inappropriate conduct by Comm. Wiener towards anyone else. Ms. Smyer believes that Comm. Wiener should attend sexual harassment training and that she is due a written apology from him calling her a liar. Ms. Smyer also requests a written promise from Comm. Wiener that their interactions will only be on a professional level.
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NOTE: Comm. Wiener requested that this Investigator provide him with a written summary of Ms. Kelly Smyer’s complaint before he consented to this interview. This Investigator prepared the written summary based on the interview held with Kelly Smyer on March 1, 2011, and provided it to Comm. Wiener as requested. (See Exhibit A-Audio CD and Exhibit A-i)
th 10 Floor at One Civil Comm. Michael C. Wiener was interviewed on March 10, 2011 in his office on the Plaza, AIb., NM. He is a Bernalillo County Commissioner and has held this elected office for twenty six
(26) months. Comm. Wiener denied the allegations that he sexually harassed or that he subjected Kelly Smyer to a hostile work environment. Comm. Wiener is familiar with the BC SH Policy and Title VII. He has never attended sexual harassment training. Comm. Wiener met Kelly Smyer at the swearing in ceremony on January 1, 2011. In all, he has communicated with her less than five minutes. She is one of two part-time Commission Assistants who work for Commissioner Lujan-Grisham. Her office was recently moved. Comm. Wiener set forth the following response to the specific allegations:
A) Allegation regarding the incident which occurred on January 3, 2011:
Comm. Wiener stated the comment was not aimed at Ms. Smyer but at the office she occupied. It was the first time he had seen that door open and the office had been painted and the office looked fresh and attractive. The “looking good” comment was in reference to the office and the feeling that there was someone in the office. Comm. Wiener thinks it is amazing that Smyer would internalize that and think the comment was about her. He denied that the comment was about her physical appearance. Comm. Wiener commented that Ms. Smyer is far from the type of person he would be attracted to. He served as Albuquerque City Counselor, was the owner of a retail business, BC Commissioner, and in all that time, he has never once had anyone make an allegation like this. He has no interest in Ms. Smyer. He was excited to see the office looking good and freshly painted. Comm. Wiener stated that Ms. Smyer made the allegation because she may be sensitive, or maybe she thinks highly of herself and thinks she’s attractive to men. Comm. Wiener is not interested in married women or anyone he works with. Comm. Wiener invited the Investigator to interview other BC employees about his conduct in the workplace.
B) Allegation regarding the incident that occurred on Feb. 8, 2011:
Comm. Wiener stated the Interesting thing is that Comm. DelaCruz told him the joke and it was, “Did you know that there is now a Wiener and a Johnson on the BC Commission?” Comm. Wiener acknowledged that he told the joke to Darrell Dady on Feb. 8, 2011, and acknowledged that Ms. Smyer was in the area when he told the joke as she had come around the corner to talk to one of them about something.
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He commented that the joke may be a little crude and maybe something he shouldn’t have said. His last name being Wiener he has lived his whole life having people make fun of his last name. He is aware that the term “Johnson” may have another meaning but when he told the joke he was talking about another type of a hot dog and the joke reference was to two types of hotdogs. If Johnson has another meaning, he didn’t know that. Comm. Wiener didn’t think it was that big of a deal. One of the lawyer’s that Comm. Wiener consulted with said the joke was only a statement of fact unless he said something like “did you see my Johnson?” Comm. Wiener stated he shouldn’t have mentioned it but he had no idea that Ms. Smyer was going to take the two comments such as the one about her office and the joke comment and think he was trying to harass her. Comm. Wiener stated that she drastically took the comments out of proportion. Comm. Wiener acknowledged that Ms. Smyer was standing with her hands crossed in front of her body and he asked her if something was wrong. Ms. Smyer stated something about her child being up all night. Comm. Wiener doesn’t recall that Ms. Smyer asked him if he had any children. He denied that he would have told Ms. Smyer, “not that I know of”, in response to a question if he has children. He has a child that he is very proud of, (Comm. Wiener showed the Investigator a picture of his daughter). Wiener acknowledged that Ms. Smyer told him that she didn’t appreciate the Wiener-Johnson joke and didn’t think it was funny. Comm. Wiener apologized to her and Ms. Smyer left the office suite. The next thing that occurred was Comm. Wiener was approached by Comm. Grisham at the end of a Commissioner’s meeting. He was put on notice and told, “We have a problem as you are creating a hostile work environment for my employee by the offensive joke. We need to get over this and I want you to tell me that this will never happen again and I’ll drop it”. (Comm. Wiener offered to apologize to Ms. Smyer but he never had an opportunity to apologize as he didn’t see her). He advised Comm. Grisham that if Ms. Smyer was offended by the joke that he was sorry. Comm. Wiener told her that he had heard the joke from Comm. Delacruz and repeated it to Ms. Smyer. Comm. Wiener told Comm. Grisham that it is his opinion that Ms. Smyer had overreacted but promised that it would not happen again. That was the end of the discussion with Comm. Grisham. Comm. Wiener stated that Ms. Smyer keeps her office door closed and that she never smiles, appears to be unhappy, and she is not a pleasant person to be around. He expressed that most employees on the th 10 floor were happy and carefree but everything changed after the dismissal of former County Manager, Thaddeus Lucero. Since then the work environment has changed drastically. Comm. Wiener asserted his opinion that Comm. Grisham’s handling of the issue with Kelly Smyer being offended by his joke was unprofessional. Her approach was very confrontational and heavy handed since she was talking to a colleague. He would have never handled the matter like that. He felt like he was attacked as Comm. Grisham was in his face. When he got home, he didn’t feel well and was upset that she came into his space like that. He stated that Comm. Grisham should have counseled Ms. Smyer that she was making a big thing out of a little thing. Comm. Grisham did not handle the complaint in an unbiased manner and his opinion is that she had already condemned him before she heard his side of what occurred. After the encounter with Ms. Smyer, Comm. Wiener saw Ms. Smyer in the hallways but he did not speak to her.
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C) Allegation regarding incident on February 17, 2011:
On February 17, 2011, Comm. Wiener was involved in a long meeting with Comm. Johnson discussing septic tanks. After the meeting, Comm. Wiener asked Comm. DeLaCruz if he had any issues with septic tanks in his district. In a joking manner, Comm. DelaCruz responded, “As far as I’m concerned, the issue of septic tanks is full of shit”. Comm. Wiener then stated to Comm. Delacruz,”you have to be very careful because if you say that in front of Comm. Grisham she will say that you are creating a hostile work environment. As soon as he finished the syllable, Ms. Smyer walked in screaming and said, “How dare you talk about me and make fun of me. You are talking about me behind my back”. She was screaming like a crazed animal, like a lunatic. She attacked Comm. Wiener, an elected official, in front of another elected official (Comm. DeLaCruz, and Wiener’s Asst., Darrell Dady). Per Comm. Wiener, the encounter with Ms. Smyer was outrageous and surreal. Comm. Wiener told her, “Until you and Michelle
got here, there was no hostile work environment. You are the ones creating a hostile work environment”. Around that time, Comm. Johnson walked in and said something in a joking way like “I’m offended too”. This was at 4:15 pm and Comm. Wiener had a meeting at 4:30 pm so he left shortly after. The point that Comm. Wiener wants to make is that he wasn’t talking about Kelly Smyer, he was talking about Comm. Michelle Grisham. After the incident, Comm. Wiener had the feeling that he was going to be blamed. Comm. Wiener asserted that his objective was to admonish Comm. DelaCruz to be careful and it all blew up in his face. Dolores Herrera, Darrell Dady, and Comm., Dela Cruz, were witnesses and witnessed the confrontation with Ms. Smyer. Comm. Johnson was there for part of the conversation. Comm. Wiener was stunned and shocked that someone would attack him. Ms. Smyer was shouting at the top of her lungs at him. He was not shouting at her. She shouldn’t have been listening in on conversations. She should have been doing her work and not listening. The conversations which take place in a Commission office are privileged conversations. Comm. Wiener considered filing some action against Ms. Smyer. Comm. Wiener stated that any other employee would have been gone. Comm. Wiener stated that a person cannot just scream and attack an elected official. Later that evening, Comm. Wiener called County Manager, Tom Zdunek. Mr. Zdunek had already heard about the incident and stated that Ms. Smyer was afraid she was going to lose her job. On Monday morning, Comm. Wiener was called by Mr. Zdunek who already knew all the details about what happened on February 17, 2011, as Comm DeLaCruz and Ms. Renetta Torres had already briefed him, and he had already talked to Ms. Smyer. On Monday, Kelly Smyer asked Mr. Zdunek if she should apologize and expressed that she had obviously overacted. Zdunek told her that he couldn’t tell her what to do but it might be a good idea to apologize to all of them. (Comm. Wiener is aware that Ms. Smyer only apologized to Darrell Dady). On Monday, Ms. Smyer told Mr, Zdunek that she wanted to drop the whole thing and that she would not press charges and that she felt the matter was closed. Comm. Wiener is aware that onTuesday, Comm. Grisham met with Mr. Zdunek and screamed at him. She berated Zdunek for mishandling the situation and accused him of not doing his job. Comm. Grisham told Mr. Zdunek that he did not handle the situation properly as he should have directed Kelly Smyer to
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go to the BC Human Resources Department to file a complaint. Mr. Zdunek was so upset and flustered by the way that Comm. Grisham treated him that he was going to quit. Comm. Wiener was so concerned that he met with four (4) different attorneys. He was advised to calm down and not do anything that might be considered to be retaliation or confrontational, and to cooperate with the investigation. They also advised him that as an elected official that he is not covered under Title VII of the Civil Rights Act of 1964. They also told him that his action did not rise to the level of sexual harassment or a hostile work environment as there had to be a pattern of inappropriate conduct. He was advised that he could file against Comm. Grisham for intentional infliction of emotional duress, and for pursuing something that wasn’t supported. Comm. Wiener has had health problems as a consequence of Ms. Smyer’s complaints about him.
th The BC 10 floor has changed negatively since Comm. Grisham arrived. Comm. Wiener has talked to different people who worked with Comm. Grisham in state government (Dept. of Aging and the Dept. of Health) and they related to him that she is difficult to work with, According to his sources, Comm. Grisham pissed off a lot of people and stepped on a lot of toes. He believes that this is the same type of
thing that Comm. Grisham is doing at BC. Comm. Wiener is fine with the fact that he is no longer seated next to Comm. Grisham. He was told that the seating arrangement was reconfigured by district number. He is fine seated next to Comm. Johnson. Comm. Wiener stated his record speaks for itself. He has never had a problem with anyone when he served on the City Council, (25) years in real estate working with all sorts of women, five (5) years owning a retail business working with lots of employees and he never had an incident. Comm. Wiener asserted that there have been negative changes since Comm. Grisham arrived. Ms. Renetta Torres, BC HR Manager, stated that the morale is the worst she has seen in the past (30) years. Comm. Wiener is open to the idea of resolution with Kelly Smyer. His attorneys have advised him not to engage in conversation with her as she is hyper-sensitive. They advised him to not meet with her and to have minimal contact with Comm. Grisham. Comm. Wiener is not opposed to providing Ms. Smyer with a written apology for the joke he told her. However, his attorneys did counsel him that if a person apologizes for something when the person doesn’t believe that he did anything wrong, that it looks like an admission of guilt.
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DISPUTED/UNDISPUTED FACTS AND ISSUES
A) It is undisputed that on February 8, 2011, Commissioner Wiener told Ms. Kelly Smyer a joke (Wiener Johnson), which she was offended by. It is undisputed that on February 8, 2011, Kelly Smyer notified her supervisor, Comm. Grisham, that she was offended by the ‘Wiener Johnson” joke. B) Whether or not the joke told to Ms. Kelly Smyer on February 8, 2011, by Comm. Wiener rises to the level of a hostile work environment is an issue in dispute. C) It is undisputed that on February 17, 2011, Comm. Wiener made the statement to Comm. DelaCruz, “You have to be careful because if you say that in front of Comm. Grisham she will say that you are creating a hostile work environment”. It is undisputed that this comment led to a heated verbal exchange between Comm. Wiener and Ms. Kelly Smyer. D) Whether or not the verbal exchange which took place between Comm. Wiener and Kelly Smyer on February 17, 2011, rises to the level of harassment and a hostile work environment is an issue in dispute. E) Whether or not BC took immediate, appropriate, affirmative action after Ms. Smyer made a claim of sexual harassment is an issue that is in dispute. F) It is undisputed that after Ms. Smyer complained of sexual harassment, BC contacted their law firm to schedule Sexual Harassment training for the BC Commissioners. G) It is undisputed that elected officials are not covered by Title VII of the Civil Rights Act of 1964, as amended.
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IV. INVESTIGATIVE FINDINGS
A) Witness Testimony: The following witnesses were interviewed during the investigation and set forth the following testimony:
1. Interview with Comm. Art DelaCruz: (See Exhibit A-Audio CD)
floor of One He has served as Commissioner since January 2009. His office is located on the th 10 floor with Comm. Wiener. Civic Plaza. Since January 2009, he has shared a suite on the Comm. DelaCruz has direct knowledge of the February 17, 2011, incident involving Kelly Smyer as he was present when it happened.
th 10 floor where she He has never been formally introduced to Ms. Smyer but had seen her on the works as Assistant to Commissioner Michelle Lujan-Grisham. He became aware of Ms. Smyer’s complaint against Comm. Wiener when he was called for the investigation. The only thing that he knew was that Comm. Grisham got angry at Comm. Wiener over an interaction with Ms. Smyer. Comm. Wiener didn’t give him the details but just said Comm. Grisham was upset about a joke that he told to Ms. Smyer. Apparently, Comm. Grisham became angry and confronted him after a
Commission meeting. Comm. DelaCruz was in Washington and was not present at that meeting. Comm. Wiener told him that Comm. Grisham got on his case about something or other. That situation led to a confrontation that occurred in Comm. DelaCruz’s office a couple of weeks later. On that day, February 17, 2011, Comm. Wiener came out of his office and into Comm. DelaCruz’s office. He had just finished a meeting with Comm. Johnson. Comm. Wiener asked Comm. DelaCruz if he had trouble with septic tanks in his district. Comm. DelaDruz jokingly responded, “The south valley has a lot of problems. He then said in a joking manner, “Comm. Wiener, you know what I think about all that septic tank stuff, I think it’s full of shit”. Comm. Wiener then said “You better be careful what you say because Comm. Grisham is very sensitive.”
About that same time, his assistant, Dolores Herrera, walked in to his office, and then Comm. Johnson, who had heard Comm. Johnson’s comment as he walked into the suite area, responded with, “I’m sensitive too”. After Comm. Johnson made that comment everyone in the suite started laughing. Very shortly after, Ms. Smyer barged into Comm. DelaCruz’s office. She didn’t knock and was waving her arms around. Ms. Smyer stated, “Do you realize that I can hear you all the way down the hall and I don’t appreciate what you’re saying. She was looking at Comm. Wiener and said, “My Commissioner stood up for me because I didn’t like what you said.” She looked around at all of us and then left. Comm. DelaCruz was very uncomfortable when Ms. Smyer confronted Comm. Wiener. Ms. Smyer was angry, her voice was raised, and he had never heard anything like that during the two (2) years he had served as BC Commissioner. Ms. Smyer voice was just at a shout or below a shout and she was waving her arms pointing in the direction of her office. Comm. DelaCruz didn’t know what Ms. Smyer was talking about. Comm. DelaCruz stated that Comm. Wiener’s
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comment didn’t relate to Ms. Smyer but at her boss, Comm. Grisham, and he didn’t think it was a really bad thing said by Comm. Wiener. Comm. testified that it was a really weird situation as he didn’t care for someone that he hardly knew should enter into his office unannounced. The incident upset Dolores Herrera and Darrell Dady. On February 18, 2011, Comm. DelaCruz reported the incident to interim County Manager, Tom Zdunek. Mr. Zdunek informed him that Kelly Smyer had already been to his office and had told her version of what occurred to Heidi Warren, Asst. to Mr. Zdunek, as Mr. Zdunek was unavailable. Comm. DelaCruz stated that the County Manager does not supervise the Commission Assistants as they are exempt employees and report only to the Commissioner that they work for. Mr. Zdunek informed Comm. DelaCruz that he was going to talk to people and find out what happened. Technically, he didn’t have to as it was incumbent on Comm. Grisham to take the lead as she supervises both Ms. Smyer and Mr. Zdunek. Zdunek does not have supervisory control over the Commission Assistants. He explained to Zdunek his version of what transpired and that he felt affronted by Ms. Smyer’s intrusion. He doesn’t know if anyone else from the group of individuals who were present when the incident occurred talked to Mr. Zdunek. After the incident, it was decided to close the door which led to the foyer area of the suite. There is now a sign on the door that states that everyone is welcome but to please keep the door shut. Comm. DelaCruz stated that being a BC Commissioner is serious business and the door is closed to avoid the possibility of offending anyone else in the future. Ms. Smyer has since moved into another office and he felt bad about it because they had already closed the door to the suite. Comm. DelaCruz believes that Ms. Smyer is deliberately isolating herself and didn’t think she needed to move. He doesn’t know if Ms. Smyer initiated the move or someone else. There was nothing that directly related to Ms. Smyer. The comment was one Commissioner who said something about another Commissioner. It was a very minor incident. Comm. DelaCruz has not discussed this matter with Comm. Grisham. Comm. DelaCruz expressed that Ms. Smyer should have knocked and asked permission to come into his office. It was not an emergency for her to come into his office the way that she did. As long as it doesn’t happen again he is going to leave it alone. The BC Commissioners have big issues to deal with. He doesn’t want Ms. Smyer to feel uncomfortable around him. He is the Vice-Chair and adheres to following professional protocol. He hopes that Comm. Grisham tells Kelly Smyer that they weren’t talking about her. Comm. DelaCruz doesn’t recall that Comm. Wiener apologized to Ms. Smyer during the confrontation. Immediately after Ms. Smyer left the office suite, Comm. Johnson told Comm. Wiener that he should apologize to Ms. Smyer. Comm. Wiener asked what he was supposed to apologize to her about. Comm. DelaCruz stated that he didn’t see that anyone needed to apologize
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to Ms. Smyer as she had been somewhat of the aggressor. He knows what Comm. Wiener and Comm. Johnson said and it wasn’t about Kelly Smyer. Comm. DelaCruz does not have any direct knowledge about the incident in which Comm. Wiener allegedly told Ms. Smyer an inappropriate joke. Comm. DelaCruz stated that he is the person who initially told Comm. Wiener and Comm. Johnson the “wiener, johnson” joke in approx. January 2011 and apparently, Comm. Wiener repeated the joke to Ms. Smyer. Comm. DelaCruz has no knowledge of any other sexual harassment complaints against Comm. Wiener. There was a situation with Comm. Wiener and an email that he sent which became a public matter.
2. Interview with Dolores Herrera: (See Exhibit A-Audio CD)
Ms. Herrera has been employed as Asst. to Comm. DeLaCruz for approx. 2 years. She is regular, full time employee with all benefits but is considered to be an exempt employee as she serves at the will of the Commissioner. Ms. Herrera has only known Kelly Smyer for a few short weeks. She spoke with her briefly when Ms. Smyer asked her work related questions. She is aware that Ms. Smyer works on a part time basis as Assistant to Comm. Grisham. Ms. Herrera perused the BC sexual Harassment policy and has a fair understanding of it. She was made aware of the policy when she went through new employee orientation provided by the BC HRD. Ms. Herrera has not attended extensive sexual harassment training since she was hired by BC. Ms. Herrera has heard bits and pieces about Ms. Smyer’s complaint against Comm. Wiener. She has no direct knowledge about the sexual joke allegedly told by Comm. Wiener to Ms. Smyer. She was briefed by Comm. DeLaCruz that someone was going to call her regarding the incident that occurred in the office on February 17, 2011. On February 17, 2011, Ms. Herrera recalled that she was in Comm. DelaCruz’s office enjoying a period of respite when Comm. Wiener entered and asked Comm. DelaCruz if their district has any septic tanks. Ms. Herrera engaged in the discussion as she is familiar with the subject. She recalled that Comm. DelaCruz made a comment which she can’t remember and they all laughed. Suddenly, out of nowhere, Ms. Smyer entered the office and was yelling something about this is a professional office and that she could hear us. Ms. Herrera stopped listening because she was so shocked by the tone and tenor of her voice. Ms. Smyer stood there and was very angry. Ms. Herrera looked at Ms. Smyer and wasn’t making sense of anything because it was so outrageous. Ms. Smyer left for a minute and then came back into the office. Ms. Herrera was in a state of bewilderment as she had never been in the office setting in which she was subjected to this type of treatment. Ms. Smyer was very angry and directed her comments at Comm. Wiener. Ms. Smyer stated that Comm. Grisham was sticking up for her.
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Ms. Smyer’s angry comments were a direct reaction to something said by Comm. Wiener which was something like, “I won’t say that to Comm. Grisham”. Ms. Herrera cannot remember anything else about the verbal exchange between Ms. Smyer and Comm. Grisham. Shortly after, Comm. Johnson came by and he verbalized a comment in response to the conversation which was talking place. Ms. Herrera cannot remember the specific comment made by Comm. Johnson. Ms. Herrera stated that the entire discussion that took place before Ms. Smyer walked in was very innocent. They were laughing loud but they laugh loud all the time. There’s a commons area in the suite and the following persons were standing in the foyer: Darrell Dady, Comm. Johnson, and Kelly Smyer. Ms. Herrera, Comm. DelaCruz, and Comm. Wiener were in Comm. DelaCruz’s office. The reaction of everyone present was bewilderment, astonishment, and shock. Ms. Herrera became emotionally upset because she didn’t know what led to the outburst. Ms. Herrera has no further knowledge regarding the incident which occurred on February 17, 2011, or anything that may have precipitated it. Ms. Herrera stated that she has a good working relationship with Comm. Wiener. She knows that he is responsive to his constituency, and that Comm. Wiener has a sense of humor. She has never encountered any problems with Comm. Wiener and has never been offended by anything he has said or done. She has never observed any inappropriate behavior or conduct by Comm. Wiener and has no knowledge of any one else who has complained of being sexually harassed by Comm. Wiener.
th 10 floor. Ms. After the February 17, 2011, incident, Ms. Smyer moved into a different office on the Herrera doesn’t know if Ms. Smyer initiated the move. After the incident, Comm. DelaCruz suggested that they keep the door to the suite closed, and asked Ms. Herrera to put a sign on the door advising that everyone was welcome to the office. Ms. Herrera’s assumption is that it’s to protect the health and well being of all of those who occupy the suite.
Ms. Herrera expressed that the episode which occurred on February 17, 2011, with Ms. Smyer is tragic and unfortunate. Ms. Herrera asserted that they had always worked in a carefree work setting and now she is cautious and not as comfortable as she felt before. The comraderie is gone, and the work environment is more stressful. 3. Interview with Commissioner Michelle Lujan-Grisham: (See Exhibit A-Audio CD) Comm. Grisham stated that she is a BC elected official with a term limitation. She receives a salary, PERA benefits, sick leave, and vacation leave and considers herself to be an employee of BC. Comm. Grisham started her term of elected office on January 1, 2011. Comm. Grisham did not have a copy of the BC Sexual Harassment Policy but is familiar with the legal requirements in a sexual harassment case. (NOTE: Ms. Montoya gave Comm. Grisham a copy of the BC Sexual Harassment Policy). Comm. Grisham has served in public management, private management, and is an attorney.
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Ms. Kelly Smyer is part-time Assistant to Comm. Grisham. Ms. Smyer works Tuesdays, Wednesdays, and Thursdays and is considered to be a regular BC employee and entitled to all the benefits, etc. th 10 floor in Comm. Grisham is her immediate supervisor. Ms. Smyer’s office is now located on the an office close to Comm. Stebbins and Wendy O’Brien. Comm. Grisham’s office is next door to the office of Comm. Wiener and Comm. DeLaCruz. Comm. Grisham cannot remember exact dates but recalled that right before a BC Comm. meeting, she received a complaint of sexual harassment from Ms. Smyer. Ms. Smyer revealed to her that Comm. Wiener told her an inappropriate joke which made her feel uncomfortable and she felt it was important to tell Comm. Grisham about it. Comm. Grisham told her that she would take affirmative and immediate action regarding the complaint. Ms. Smyer told Ms. Grisham the joke which was, “we now have a Johnson and a Wiener on the BC Commission. Comm. Grisham indicated that it was not the first time she had heard the joke. She had previously heard the same joke from Comm. DelaCruz. That same day, Comm. Grisham verbally informed Comm. Stebbins about Ms. Smyer’s complaint against Comm. Wiener. Ms. Stebbins is the Chair of the BC Board of Commissioners and controls the administrative agenda and is Comm. Grisham’s supervisor in this context. Comm. Stebbins agreed that it was not good and not appropriate and asked Comm. Grisham what she was going to do about it. Comm. Grisham advised that she was going to approach Comm. Wiener and that if he acknowledged that he told Ms. Smyer the joke that she was going to put him on formal notice that it was not appropriate. Comm. Stebbins agreed with Comm. Grisham’s plan of action. Comm. Grisham met with Comm Wiener immediately following the meeting. She asked him if he told Ms. Smyer the joke and Comm. Wiener replied, It’s pretty funny isn’t it?” Comm. Grisham replied to him that it was irrelevant if it was funny and that what was important was that he should not make any employee feel uncomfortable and that she wanted it to be clear that she needed for him to understand this. She informed him that if he continued to act in this matter that she and Ms. Smyer will do what is required to do in accordance with BC policies and procedures and that it was her responsibility to protect her employee. Comm. Grisham said to Comm. Wiener, “Do you understand how serious this is because I’m not kidding around? If you feel the need to tell jokes with your buddies have at it but you are not allowed to behave in that manner and you are making my employee uncomfortable and you must refrain from that behavior.” Comm. Wiener’s body language was telling Comm. Grisham that she was making a big thing out of nothing. Comm. Wiener did not deny telling Ms. Smyer the joke and wanted Comm. Grisham to know that he heard the joke from Comm. DelaCruz. Comm. Grisham informed him that he was the person who told the joke to Ms. Smyer and that he was responsible for his actions. At some point Comm. Grisham asked Comm. Stebbins to move her assigned seat on the Commission Board as Comm. Wiener distracted her and frequently poked her. It was effective last Tuesday, March l. It was handled discretely.
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Ms. Smyer drove Comm. Grisham home after the BC Comm. Board meeting and it was then that she informed Ms. Smyer that she had the conversation with Comm. Wiener. She assured Ms. Smyer that she approached Comm. Wiener proactively, affirmatively and very direct. Comm. Grisham expressed that it was her duty and obligation to remove that harm. Her employee knows that she took those steps to protect her. About two weeks later, Comm. Grisham was in Santa Fe, NM testifying at the Legislature when she observed that Ms. Smyer was calling her cell phone, and that she had four phone calls in a row from her. She was in a hearing and couldn’t’ respond immediately. By the time Comm. Grisham can call her back, Ms. Smyer has texted her. Comm. Grisham looks at her cell phone and explains that this occurred on February 17, 2011. Comm. Grisham reviewed the text message which states that Ms. Smyer had a confrontation with Comm. Wiener and Comm. DelaCruz and to please call when she had a minute. Comm. Grisham returned Ms. Smyer’s call at approx. 5:15 pm. Ms. Smyer explained that earlier that day she was in her office when she overheard Comm. DelaCruz from his office using language that could be offensive. Comm. DelaCruz and Comm. Wiener were talking about septic systems. Ms. Smyer then heard Comm Wiener say, “I can’t be involved in any statement like that because I don’t want to get Comm. Grisham upset and I don’t want to do anything to Kelly”. Ms. Smyer told Comm. Grisham that Comm. Wiener was shouting. At that point, Ms. Smyer explained to Comm. Grisham that she walked into their office space and confronted this communication. Comm. Grisham does not know if Comm. Johnson is there or if he walks up, but Ms. Smyer is there, the two staffers, Dolores Herrera and Darrell Dady were there in the office space too. Comm. Grisham stated that Ms. Smyer is articulate, smart, and direct and that Comm. Grisham is the same way. Ms. Smyer approaches them, tells them that she did not appreciate the references made, and that she represents Comm. Grisham, and that she wanted them to stop. Comm. Grisham stated that Ms. Smyer makes it clear, I hear you, I don’t think it’s right, and I think it should stop. Comm. Grisham doesn’t remember if Comm. Wiener responded to Ms. Smyer. As Ms. Smyer is telling Comm. Grisham her version of what occurred, Ms. Grisham is saying to herself that there is now a pattern as Ms. Smyer is uncomfortable by these references. Comm. Grisham had already made it clear to Comm. Wiener about that and he deliberately raised his voice so Ms. Smyer could hear. Comm. Grisham has not talked to Comm. DelaCruz or Comm. Wiener about the event that occurred on February 17, 2011 but Comm. Johnson called her the evening of February 17, 2011. He wanted to tell her that the situation had occurred and he felt he needed to stay because it was very uncomfortable and Ms. Smyer needed his help. He told Comm. Grisham that Ms. Smyer was not inappropriate. Comm. Grisham can’t recall how Comm. Johnson was engaged in the conversation but that he was engaged to the point that he should call her. He informed Comm. Grisham that he believed that Comm. Wiener should apologize.
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At this point, Comm. Grisham believes that she has a pattern of harassment and that she has to figure this out for her employee. She called Chair Stebbins and reports that she is disturbed by this and asks her if it’s an ethics complaint or what should be done. Comm. Stebbins directs Comm. Grisham to the County Manager, Mr. Zdunek. She was uncomfortable with that because BC doesn’t have a process that deals with the Commission. Comm. Grisham is concerned that the County Manager works for the five (5) elected officials and this scenario is different than the investigation of a subordinate. Comm. Grisham knows that there is an established complaint process within BC and she wants Ms. Smyer to use the process to protect her rights. Comm. Grisham and Comm. Stebbins discussed that all of the BC Commissioners should be required to participate in EEO training. Comm. Grisham stated that she is now concerned that she has two members of the BC Commission Board to be concerned about. Comm. Grisham called Mr. Zdunek that same night and told him that she wanted the issued addressed right away. Mr. Zdunek responds to her and is incredibly affirmative and asserted that he has no tolerance for harassment and will take affirmative, immediate action. Mr. Zdunek initiated the idea of moving Ms. Smyer to a different office. Comm. Grisham contacted Ms. Smyer immediately and informed her that they now had a plan and that she was to meet with Mr. Zdunek and that she was going to be moved to a different office. She had an obligation to check with Ms. Smyer and she’s okay with the move. Comm. Grisham now felt that there was movement in the right direction. Comm. Grisham’s plan for handling the matter and protecting her employee is to require the EEO training and to have Ms. Smyer moved. Comm. Grisham will document the course of action with an email to Mr. Tom Zdunek and Comm. Maggie Stebbins. The following Monday, February 21, 2011, Comm. Grisham meets with Mr. Tom Zdunek. Between Thursday, February 18, 2011, and Monday, February 21, 2011, Ms. Smyer related information to Comm. Grisham that she is not happy with. Comm. Grisham stated that Ms. Smyer informed her that she had spoken with Heidi Warren and with Mr. Tom Zdunek on February 18, 2011. Ms. Smyer had informed Comm. Grisham that on February 17, 2011, she talked to Heidi Warren about her complaints and issues. Comm. Grisham offered the opinion that at this point Ms. Smyer is now in victim mode. She expressed that Ms. Smyer is preoccupied with what she has done to Comm. Grisham. Comm. Grisham explains that making a complaint is no fun for anyone involved, particularly the one making the allegation. Ms. Smyer has no one right there in the office to turn to and feels that she’s by herself. Hence, Ms. Smyer does not file a complaint. Ms. Grisham is aware that Mr. Zdunek told Ms. Smyer to file a complaint with BC HR department and she did not. Comm. Grisham felt at the time that the fact that Ms. Smyer did not file indicated that something was not right. Ms. Smyer had related to Comm. Grisham what happened in the meeting with Mr. Zdunek and options which he set forth were repeated to Comm. Grisham: investigation, mediation, all of which seemed to be affirmative action which could get to the problem and protect the employee.
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Once Ms. Smyer goes to meet with Mr. Zdunek in his office, the plan is out the window. Ms. Smyer is advised by Mr. Zdunek that the Commissioners expect her to apologize for not following protocol. Mr. Zdunek alerted Ms. Smyer that maybe she shouldn’t have directly approached the Commissioners. Mr. Zdunek advised Ms. Smyer to “chalk it up to a smack on the bum and it goes away”. Mr. Zdunek also advised Ms. Smyer that “it would be a good idea to apologize to the Commissioners”. Ms. Smyer asked him what she should have done, and Mr. Zdunek told her that she should have had a private conversation with Comm. Wiener in his office about her concerns. When Ms. Smyer relates this information to Comm. Grisham, she comes unglued. She is not happy and intends to sit down with Mr. Zdunek to let him know about her dissatisfaction with the things that he suggested to Ms. Smyer. On February 21, 2011, Comm. Grisham met with Mr. Zdunek at his office. She asked him how he came to the conclusion that Ms. Smyer should apologize. Comm. Grisham asked Mr. Zdunek if he made those statements to Ms. Smyer and he said he might have which she perceived as affirmation. Comm. Grisham asked him to document all of his conversations with Comm. Wiener, Comm. DelaCruz, and with Comm. Grisham. Mr. Zdunek expressed to Comm. Grisham that she was not cooperating and that it would be best to hire an outside investigator. Comm. Grisham stated that the process used by Mr. Zdunekto determine if there was a problem with regard to Ms. Smyer’s complaint was not a professional approach. Comm. Grisham asked Mr. Zdunek to do a search on whether there had been any other sexual harassment complaints against Comm. Wiener. Comm. Grisham indicated that she is aware that there are many complaints where women have said they don’t appreciate his comments but it is all hearsay. Comm. Wiener did tell an inappropriate (not sexual)joke on County email and this is confirmed. Comm. Grisham will request that any potential witnesses ask to talk to this Investigator about what they know. She has no specific leads for this Investigator to pursue. After her meeting with Mr. Zdunek, Comm. Grisham reported back to Ms.Smyer about what was discussed. She also reported to Ms. Smyer that she was contacted by Comm. Stebbins and informed that BC will hire an outside investigator to investigate Ms. Smyer’s complaints. Comm. Grisham stated that she is not happy with the end result of Mr. Zdunek’s involvement in addressing Ms. Smyer’s issues and believes that she will have the liability. Comm. Grisham had a duty to insure that her employee is safe and now she is in a negative hostile work environment. Comm. Grisham stated that Ms. Smyer decided that she wanted an investigation of her allegations and she communicated her decision to Chair Stebbins directly. Comm. Grisham was advised by Chair Stebbins that Mr. Zdunek informed her that he was concerned about the conversation that he had with Comm. Grisham and stated that Comm. Grisham might sue. It was related to Comm. Grisham that Mr. Zdunek felt threatened by Comm. Grisham when she met with him on February 21, 2011. Comm. Grisham stated that it is her responsibility to ensure that there was documentation and a thorough process. Comm. Grisham has not had any other
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conversations with Mr. Zdunek since February 21, 2011 and all communication has been with Chair Stebbins. Comm. Grisham stated that she had a face to face conversation with Comm. Johnson. He seemed to be concerned. He informed her that he was advised that Comm. Wiener had apologized to Ms. Smyer and that the matter was fixed. Comm. Grisham informed Comm. Johnson that Comm. Wiener did not apologize to Ms. Smyer. Comm. Johnson informed Comm. Grisham that he told Comm. Wiener that he should apologize. Comm. Grisham doesn’t remember if Comm. Wiener called Ms. Smyer a liar. Comm. Grisham stated that part of the dilemma is that there isn’t an established process to deal with complaints about a BC Commissioner.
4. Interview with Commissioner Maggie Hart Stebbins: (See Exhibit A-Audio CD)
Comm. Stebbins serves as Chair for the BC Board of Commissioners. Her elected office began on th 10 floor of One Civic Plaza in AIb., NM. She spends more May 12, 2009. Her office is located on the time at the office than most of the Commissioners. In January 2011, Comm. Stebbins met Ms. Kelly Smyer when she began working as Assistant to Comm. Grisham. Comm. Stebbins has never attended sexual harassment training and has limited knowledge of the sexual harassment laws and requirements but will learn about that in the near future since training in sexual harassment will be part of an upcoming orientation which all BC Commissioners will attend. Sometime after February 8, 2011, Comm. Grisham mentioned to Comm. Stebbins that Ms. Smyer advised her that she was offended by a joke told to her by Comm. Wiener. Comm. Stebbins did not get directly involved in the situation as she felt it was more appropriate for Comm. Grisham to handle it as she is Ms. Smyer’s immediate Supervisor. The only discussion with Kelly Smyer was by phone to discuss if Ms. Smyer wanted an outside Investigator to investigate her allegation against Comm. Wiener. Comm. Stebbins heard about a second incident which occurred in Comm. DelaCruz’s office. She heard that Comm. Wiener was talking about septic tanks and Comm. DelaCruz told Comm. Wiener that he thought the issue of septic tanks was full of shit. Comm. Wiener responded that he couldn’t make comments like that because Comm. Grisham was very sensitive and would be offended. Ms. Smyer overheard the conversation and approached Comm. Wiener about it and let him know that she felt the comment was directed at her. Comm. Stebbins heard that Ms. Smyer went to Heidi Warren, Asst. to the County Manager, and to Mr. Tom Zdunek, BC County Manager, and that he offered to take Kelly to the BC HR Department so
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that she could get started with the process for filing a complaint. Comm. Stebbins was advised that Ms. Smyer spoke personally with Mr. Zdunek and declined the offer, and informed Mr. Zdunek that she wanted to drop the matter. Comm. Stebbins then heard from Comm. Grisham that the issue with Ms. Smyer had been inappropriately handled by Mr. Zdunek. She stated that there’s a law that governs what the employer should do, and that BC has a process, and that it was not followed with Ms. Smyer. Comm. Grisham did not specifically tell Comm. Stebbins how Mr. Zdunek’s handling of the matter was flawed. Comm. Stebbins is not sure if at that time Comm. Grisham knew that Kelly Smyer had been offered an opportunity to report her complaint to BC HR Department. Comm. Stebbins stated that at some point later, somebody told her that Kelly Smyer had decided to go formal with her complaint against Comm. Wiener. Comm. Stebbins conferred with Comm. Grisham and it was agreed that if Ms. Smyer wanted an outside investigation of her complaint against Comm. Wiener, that she would support it. Comm. Grisham talked to Ms. Smyer and told her to call Chair Stebbins to let her know if she wanted a formal investigation by an outside Investigator. Very shortly thereafter, Ms. Smyer spoke with Comm. Stebbins and Comm. Stebbins told Ms. Smyer directly that “we will support you whatever you want to do”. The next day, Ms. Smyer called and left a message on Comm. Stebbins phone stating that she wanted to go forward with the investigation. On or about that same time, Comm. Wiener contacted Comm. Stebbins and told her that Ms. Smyer’s behavior on February 18, 2011, was inappropriate and that the comment he made was not directed at Ms. Smyer. Comm. Wiener did not discuss Ms. Smyer’s allegation that he told her an inappropriate joke. Comm. Stebbins has no knowledge of any other complaints of sexual harassment reported regarding Comm. Wiener. Comm. Stebbins stated that Ms. Smyer told Ms. Wendi O’Brien, Assistant to Comm. Stebbins, that at a previous job she was in a similar situation, and she never confronted the individual about it. Comm. Stebbins believes this may be relevant based on the fact that this was not the first time that Ms. Smyer had experienced something that she perceived as sexual harassment. Comm. Stebbins doesn’t know if this information has any relevance or not. Comm. Stebbins stated that Ms. Smyer’s office was moved to make her feel more comfortable in the work place. Comm. Stebbins believes that Ms. Smyer was consulted about it. She is not sure if Ms. Smyer requested it or if Mr. Zdunek offered it. There was also discussion about moving Comm. Grisham ‘s office so she could be closer to Ms. Smyer but that didn’t happen.
5. Interview with Darrell Dady: (See Exhibit A-Audio CD)
Mr. Dady has been employed since December 2009 as Assistant to Comm. Wiener. Wiener is his immediate supervisor and he serves at the will of the Commissioner. He receives all the same
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benefits as the other BC employees. Mr. Dady attended an employee orientation in Jan. 2010 and was briefed about the BC Sexual Harassment policy at that time. He talks to Comm. Wiener often and sees him in the office at least 2-3 times per week. Mr. Dady met Ms. Kelly Smyer on Jan. 3, 2011 and commented that she is a nice lady. Ms. Smyer is employed as a part time Assistant to Comm. Grisham. Recently, Ms. Smyer apologized to him for what occurred on February 17, 2011. Mr. Dady has known Comm. Wiener for (37) years and knows that he is a jokester. He is relentless but Mr. Dady can turn it off. On February 8, 2011, Mr. Dady was present when Comm. Wiener told the “Johnson-Wiener joke”. Mr. Dady stated that he doesn’t remember Kelly Smyer being there. Mr. Dady shrugged his shoulders and went back to his office. That is where it ended for him. Mr. Dady doesn’t remember that Ms. Smyer was there or that she was offended. He doesn’t remember anyone else being there. The joke told by Comm. Wiener was “well you know that now the Commission has a Wiener and a Johnson on it. It wasn’t the first time that Mr. Dady had heard the joke. Mr. Dady believes that probably 99% of the people would not have knowledge or understand that there is another meaning for the term Johnson. Mr. Dady was not offended by the joke and he brushed it off. Mr. Dady stated that a person as Comm. Wiener can’t go through life with the last name wiener and not have a joking nature. Mr. Dady has never heard Comm. Wiener tell any other sexual jokes. Mr. Dady can’t remember when he first heard the Wiener/Johnson joke and doesn’t think it was a joke as it can be taken as a joke or a statement of fact. Per Mr. Dady, Comm. Wiener is not the kind to say sexual things like that in the office. Per Mr. Dady, on February, 17, 2011, Comm. DelaCruz was lamenting that the mood of the office had changed since the two new Commissioners had arrived and had manipulated the dismissal of former BC Manager, T. Lucero. Ms. Smyer overheard a comment and was upset because she thought that Comm. Wiener was belittling her. Comm. Wiener had made a comment to the effect that he couldn’t tell Comm. Grisham a joke or she would be upset. At that point, Ms. Smyer barged around the corner and into their office space and walked directly into Comm. DelaCruz’s office and said “it’s about me, it’s about me”. They had no idea what she was talking about and they didn’t know what was going on. Ms. Smyer got into the face of a current Commissioner and she was furious. They had no idea what had set her off and apparently it was something that happened that the others didn’t know about. At that point, Comm. Wiener showed his frustration and stated to Ms. Smyer, “Things were fine until you and Comm. Grisham got here”. Now, everyone keeps their doors closed and there is a very uneasy mood. Comm. Wiener thought that Ms. Smyer was disrespectful. They were all still in shock when Ms. Smyer left and then she came back and did it all over again. They were taken aback by what Ms. Smyer had done. Mr. Dady doesn’t remember exactly what Ms. Smyer said but expressed that she had no right to do such a thing. Mr. Dady stated that it should have been handled as a private
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conversation with Comm. Wiener and Comm. Grisham and worked out by the two Commissioners who were involved. After Ms. Smyer’s moved to a different office on the floor, he visited with her. During the conversation she told him that she owed Mr. Dady and Ms. Herrera an apology for what occurred on February 17, 2011. Per Mr. Dady, Ms. Smyer never actually apologized to Ms. Herrera. Mr. Dady thinks that Ms. Smyer requested to move to a different office. Initially, Comm. Grisham was also going to move to a different office but then decided not to. The first that Mr. Dady heard about the complaint by Ms. Smyer was when he read the email sent by Strategic Solutions. He does not think Comm. Wiener had any prior knowledge that Ms. Smyer had made a formal complaint. Mr. Dady stated that “looking good” is an expression that’s been around for a long time. Comm. Wiener told Mr. Dady that Ms. Smyer took the comment out of context and he was talking about the appearance of the office as it had been freshly painted. Comm. Wiener and he hadn’t seen the inside of the office. According to Mr. Dady, Comm. Wiener has not had any other complaints of sexual harassment against him. Comm. Wiener has a tendency to put his foot in his mouth but it’s never about a woman. He is aware that Comm. Wiener has a daughter and she lives in the Philippines. He would never say that he didn’t have any kids. He’s always more than happy to talk about his daughter. Mr. Dady stated that Ms. Smyer is not Comm. Wiener’s type of woman. Comm. Wiener dates and he’s not interested in any of the women who work at BC. Mr. Dady believes that Ms. Smyer’s allegations are unsubstantiated.
6. Interview with Evelyn Chacon: (See Exhibit A-Audio CD)
Ms. Chacon knows who Kelly Smyer is but has never formally met her. Ms. Chacon has been employed by BC for approx. 7 years, 6 months. She is Assistant to Mr. Tom Swisstack and has held that position since March 2008. Ms. Chacon’s office is located on the
floor of One Civic Plaza.
Ms. Chacon has no information regarding Kelly Smyer’s sexual harassment complaint against Comm. Wiener, and has no knowledge of any inappropriate sexually offensive conduct by Comm. Wiener towards anyone. 7. Interview with Patricia Chandler: (See Exhibit A-Audio CD) Ms. Chandler has been employed by BC for (17) years. She is employed as an Assistant to Mr. Tom Zdunek who is the interim BC County Manager. Mr. Tom Zdunek is her immediate supervisor. Ms. th Chandler’s office is located on the 10 floor. Ms. Chandler met Kelly Smyer in Jan. 2011. Ms. Smyer is a part time Assistant to Comm. Grisham.
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Ms. Chandler has no knowledge regarding Ms. Smyer’s allegation against Comm. Wiener. Ms. Chandler did recall that several years ago she was walking past Evelyn Chacon’s office when she heard Comm. Wiener make the comment “I’m standing in fertile grounds”. At the time, Comm. Wiener was standing at the door of Evelyn Chacon’s office talking to her and Jovan Roybal. Ms. Chandler does not know what Comm. Wiener meant by that comment but thought the comment was unusual. She doesn’t know any more about the conversation that was taking place between the parties. Ms. Chandler mentioned the comment to Ms. Heidi Warren. Ms. Chandler has high regard for Comm. Wiener and described him as a very professional and knowledgeable person. She is not aware of any inappropriate conduct by Comm. Wiener towards any employee. 8. Interview with Commissioner Wayne Johnson:
(See Exhibit A-Audio CD)
Comm. Johnson has been in elected office as BC Commissioner since January 2011. Comm. Johnson has not yet read the BC Sexual Harassment Policy but understands what constitutes sexual harassment. Comm. Johnson has never attended formal training in sexual harassment. Comm. Johnson stated there is a problem in this case as BC rules are not in play here but it does not absolve the parties from taking appropriate action. He does not know what the penalty or sanction is with an elected official. Comm. Johnson met Kelly Smyer in January 2011. She is one of the two part-time Assistants who work for Comm. Grisham. Comm. Johnson has had a very positive professional working relationship with Ms. Smyer. Comm. Johnson has interacted with Comm. Wiener on more occasions than he has with Ms. Smyer. Comm. Johnson has no direct knowledge of Ms. Smyer’s allegation that Comm. Wiener made the comment “looking good” when Comm. Wiener was standing in the doorway of Ms. Smyer’s office. Comm. Johnson has no direct knowledge regarding Ms. Smyer’s allegation that Comm. Wiener told her an inappropriate joke on February 8, 2011. He was not there and had not heard about that particular incidence but has been present when Comm. Wiener told that same joke. Comm. Johnson has heard other Commissioners re-tell the joke as well. Ms. Smyer has never discussed this allegation with Comm. Johnson. On February 17, 2011, Comm. Johnson was approaching the foyer of the offices of Comm. Wiener and Comm. DeLaCruz when he heard the sound of laughter coming from the offices. Comm. Johnson has a habit of picking up on conversations and making a joke out of it. He picked up on what sounded like a joking environment and when he heard someone say that someone was too sensitive and he walked up and said hey, I’m very sensitive too. After that statement of mine, Ms. Smyer came into the office and confronted Comm. Wiener with the issues in that statement and told him that she could hear him down at the end of the hallway and she didn’t appreciate that they were talking about her and mentioned creating a hostile work environment. Comm. Johnson’s radar and
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red flags went up when he observed that Ms. Smyer had confronted Comm. Wiener. Comm. Johnson then became immediately concerned about what had just happened. Ms. Smyer confronted him Comm. Wiener in front of the door. Comm. Johnson realized that Ms. Smyer was referring to other issues that he had not witnessed. After Ms. Smyer left, the door was closed to Comm. DelaCruz’s office. Later, Comm. Johnson realized that it wasn’t right for the three Commissioners to be behind a closed door in Comm. DelaCruz’s office and that he should not have been there. Comm. Wiener stated that he can’t joke around, and it wasn’t fun, and he then retold the joke about Johnson and Wiener. Comm. Johnson then related to both Commissioners, (and Comm. DelaCruz supported him on this), that it was in Comm. Wiener’s best interests to apologize to Ms. Smyer because it wasn’t important about what actually happened but how Ms. Smyer perceived those events. Comm. Johnson advised Comm. Wiener to very carefully and respectfully to apologize to Ms. Smyer. It doesn’t matter who is right or wrong but it is in the best interests of the County to not have to investigate, and to understand what the rules are between individuals. Ms. Smyer had made it clear that she felt she was being harassed and wanted it stopped. That is why Comm. Johnson believed it was so important to apologize to Ms. Smyer and to have Comm. Grisham present when it happened in order to avoid a situation which might get worse. The next thing Comm. Johnson knew the County Manager revealed to him that he had engaged the services of Strategic Solutions to investigate Ms. Smyer’s complaint. Comm. Johnson was not present until the comment “too sensitive” was stated. At that point, Ms. Smyer was exiting the office and walking down the hall way and then she turned back and walked back into the office. Comm. Johnson found out later that after Ms. Smyer left the office the second time she had gone to talk to County Manager, Tom Zdunek. That same afternoon, Comm. Johnson saw Ms. Smyer and pulled her aside and apologized to her for anything he said which may have offended her. Comm. Johnson didn’t feel that he had done anything wrong but he might have inadvertently done something which offended her. Ms. Smyer told him that he didn’t do anything wrong and that she was glad that he was there. Comm. Johnson felt better because he didn’t want to be wrapped up in that situation. Comm. Johnson stated that Ms. Smyer was visibly upset but that she never lost control. She was angry and that was visible. She handled herself professionally and still brought up legitimate points. Ms. Smyer’s voice was not at her normal voice and she was stern. She was not yelling or screaming. There was nothing unprofessional that Comm. Johnson observed about her demeanor. Comm. Johnson had subsequent conversations with Comm. Wiener and Comm. Grisham and they were discussed by phone. When he spoke with Comm. Grisham, they talked about her obligation to do something. They also spoke about the quandary as far as what actually can be done since Ms. Smyer works for a Commissioner and the County Manager does not have the authority to dismiss Ms. Smyer or Comm. Wiener. The big concern was that the law does not allow Comm. Grisham N91 to act on Ms. Smyer’s complaint. Comm. Grisham expressed that she needed to act in this particular
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complaint. They had discussion about whether or not this type of complaint would be covered by an ethics complaint, and if so, what would the sanction be, and who would serve on the deciding body. This matter is still uncertain and in uncharted territories. When he subsequently spoke with Comm. Wiener, he was told by Comm. Wiener that he had spoke with Comm. Grisham and that at one point Ms. Smyer was going to apologize to Comm. Wiener. Comm. Johnson thought that was interesting and expressed to Comm. Wiener that he still needed to apologize to Ms. Smyer. Much of this has to do with Ms. Smyer’s perception of her environment. Comm. Johnson felt it was important for Comm. Wiener to apologize to her because it would make it easier for his future contacts with Ms. Smyer, and would make for a better working relationship for all of the parties involved. Comm. Wiener resisted Comm. Johnson’s suggestions that he should apologize to Ms. Smyer. Comm. Johnson spoke with Comm. Grisham about the matter and she denied that Comm. Wiener had ever spoken to her. That was when Comm. Johnson’s attempts to mediate faded out as he didn’t want to get caught in the middle between the two parties until he understood what they would be mediating. Comm. Johnston stated that Ms. Smyer was moved to a different office, which is right next to his, and she is fine with the move. Comm. Grisham will stay in her original office. Comm. Johnston talked to Tom Zdunek about what he was going to do and some of the problems regarding an at will employee of Comm. Grisham’s. Mr. Zdunek felt it was important to have an investigation and to move forward with it. Comm. Johnson felt that Mr. Zdunek’s handling of the situation was appropriate. They discussed that and the fact that some of what was happening was outside of the standard of BC policies. Mr. Zdunek talked with Comm. Johnson about what happened and gave him an opportunity to tell his version of what occurred. Comm. Johnson does not know the specifics about who Mr. Zdunek talked with anyone else as part of his initial inquiry. Comm. Johnson knows of an incident involving Comm. Wiener which at the first BC Commissioner meeting. Comm. Johnson was sitting with Comm. Grisham and County Clerk Maggie Oliver and Comm. Wiener came over and sat down and proceeded to tell a joke. The joke started with a German woman walking through Central Park at which point Comm. Johnson said to Comm. Wiener, “look this isn’t going to end well”. There were two women sitting there and he wanted to get Comm. Wiener to think about it before Comm. Wiener continued. Nevertheless, Comm. Wiener continued telling the joke as follows, “there was this German woman walking in Central Park and she was raped by (15) men and she was yelling nine, nine, nine”. The punch line of the joke is that six of the men left. The County Clerk got up and walked off and seemed to be disgusted. Comm. Grisham let it roll and she wasn’t angry about it and didn’t walk off. Comm. Wiener didn’t seem to be upset that Ms. Oliver walked away after he said the joke. Comm. Johnson is not sure if he should have said something at the time to Comm. Wiener because of his status as BC Commissioner. Based on that incident, he has reason to believe that it wouldn’t be surprising if Comm. Wiener did make the comments that Ms. Smyer alleged that he said.
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9. Interview with County Manager-Tom Zdunek: Mr. Zdunek works at One Civic Plaza on the
(See Exhibit A-Audio CD)
floor. He has been employed for (9) years and he has held the title of interim County Manager since January 31, 2011. He is supervised by the five County Commissioners. Mr. Zdunek is familiar with the BC Sexual Harassment Policy and has been attended BC training where sexual harassment training was covered. He also received sexual harassment training when he worked in private industry. Zdunek believes that he has a good understanding of what constitutes sexual harassment. Mr. Zdunek stated that Kelly Smyer is one of two part time employees who are employed as Assistant to Commissioner Grisham and are supervised by Comm. Grisham. Ms. Smyer has an office th on the 10 floor. On the date of the incident (February 17, 2011, Ms. Zdunek was in his office with Renetta Torres, Director of HR, when his assistant, Heidi Warren, came in and stated that there’s a situation involving Kelly Smyer that has come up. Ms. Smyer wanted to see him but was advised that he was in a meeting. Ms. Warren advised that Ms. Smyer is very worried about her job and there was an incident with Comm. Wiener. Ms. Warren offered to take her to HR to make a complaint but she didn’t want to. She was more concerned with the possibility that she might lose her job. Ms. th 4 floor but Ms. Smyer was Warren offered to go with Ms. Smyer down to BC HR Department on the in a hurry to leave and couldn’t wait to get a copy of the policy. Ms. Smyer said something about having to go to Taos the next day. Ms. Smyer left her cell number and home number. Mr. Zdunek called her at 10 am the next day (Friday, Feb. 18, 2011). Zdunek assured her that she would not lose her job. He asked her to come in so he could talk with her and get an understanding of what had happened. She was scheduled to be off on Monday, Feb. 21, 2011, so the appointment was set for Monday, February 21, 2011, at 1 pm. Later that same day, Mr. Zdunek was in Julie’s office when Ms. Renetta Torres and Comm. DelaCruz walked in and said to him, “you’re not going to believe what happened”! Comm. DelaCruz recited the same event as Ms. Smyer. He was very disturbed that on February 17, 2011, he was having a conversation with Comm. Wiener when Ms. Smyer walked into his office. He was sitting at his desk and he and Comm. Wiener were talking about the septic tank ordinance. When they finished the conversation, Comm. DelaCruz said, “I think it’s a shitty situation”, to which Comm. Wiener said,” I’m glad you said it because if I would have said it, Comm. Grisham would be upset”. At that point, Comm. Johnson walked up and said, “Well, I’m sensitive too”. Ms. Smyer then walked in and turned and looked at Comm. Wiener and told him that she didn’t appreciate the comment. Ms. Smyer was somewhat confrontational. They were all astonished because they don’t know where she came from as she was not part of the conversation. Comm. DelaCruz expressed that he and Comm. Wiener believed that for Ms. Smyer to burst in like that was in their minds, “inappropriate”. Zdunek stated he did not get that same reaction from Comm. Johnson.
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After Ms. Smyer left the office, Comm. Wiener was asking the parties present what he said or did wrong. Comm. Johnson suggested that maybe they should go apologize to Ms. Smyer. Comm. Wiener responded that he didn’t have anything to apologize for (Mr. Zdunek got this information from Comm. Wiener and Comm. Delacruz). When he spoke with Comm. Johnson, he advised that he came in on the tail end of the conversation. Zdunek acquired this information when he was conducting an inquiry as to what this was all about. Comm. DelaCruz told him his version of what happened when Mr. Zdunek was in Julie’s office. That evening when Mr. Zdunek was at home, he received a phone call from Comm. Wiener and he was upset that Ms. Smyer confronted him in his office. Mr. Zdunek suggested that maybe he should apologize to Ms. Smyer to which Comm. Wiener responded that if he has to apologize he will but he doesn’t know what he did and in his mind he didn’t understand why this would be an issue. He stated he didn’t know where she came from etc. Later that evening Mr. Zdunek received a call from Comm. Grisham. She told him that Ms. Smyer was very upset. Mr. Zdunek assured her he could take care of it and he would do some interviews. Comm. Grisham wanted Ms. Smyer to be moved to a different office and he agreed to it. She also mentioned that she wanted to be moved to a different office as well. Comm. Grisham stated to Mr. Zdunek “this is sexual harassment.” Ms. Grisham explained that Comm. Wiener had previously told an inappropriate joke to Ms. Smyer. Mr. Zdunek’s feeling was that he didn’t know all that was going on. Comm. Grisham was obviously very concerned about taking care of Ms. Smyer and told Mr. Zdunek that she was going to send him an email about their conversation. Mr. Zdunek talked to Comm. Johnson. Comm. Johnson stated that he didn’t have much to offer as he came in on the tail end of the incident which took place on February 17, 2011. Ms. Dolores Herrera also spoke with Mr. Zdunek and she was very upset. She thought the whole matter was ridiculous. She informed Mr. Zdunek that she was present the entire time when Ms. Smyer entered the office suite and expressed that Ms. Smyer had no right to come into Comm. DelaCruz’s office. On Tuesday morning, Comm. Grisham called and requested to come in to meet with Mr. Zdunek. When they met, Comm. Grisham requested that he tell her what was going on with the issue with Ms. Smyer and asked if he had documented his involvement in Ms. Smyer’s complaint. Mr. Zdunek told her that he had not. Comm. Grisham was very emphatic that “this is sexual harassment and now I’m going to put on my attorney hat”. Mr. Zdunek stated that he should have stopped at that point and not continued because he typically would not talk to attorneys without his attorney present. His focus was on Ms. Smyer and her fear of losing her job. When Mr. Zdunek spoke with Ms. Smyer, she told him that she didn’t want to do anything about the matter. She wanted assurances that her job wasn’t in jeopardy and he assured her of that. Ms. Smyer asked him what she should do. He informed her that the Commissioners conveyed to him that she acted inappropriately. Ms. Smyer asked Mr. Zdunek if she should apologize. Zdunek advised that he couldn’t tell her what to do but suggested that she should apologize and tell them that she didn’t mean to embarrass them. Mr. Zdunek discussed with Ms. Smyer that perhaps she
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could have gone to Comm. Wiener privately and told him that she didn’t appreciate him talking about Comm. Grisham. Ms. Smyer asked what she should do about the others who were also present when she confronted Comm. Wiener. Mr. Zdunek gave her (3) options: “you can do nothing, you can say that if I embarrassed anybody by what they witnessed, that I apologize, or you can go down to HR and do the complaint as we have a process”. When Comm. Grisham met with Mr. Zdunek, she ordered him to write down everything that happened and that she wanted it before the end of the business day. She continued and stated, “Kelly and I are going to file a lawsuit and you will be named. You didn’t handle this well and that she was taking over.” Mr. Zdunek stated to Comm. Grisham, “I understand that you intend to sue me”. After Comm. Grisham left his office, Mr. Zdunek contacted Mr. Jeff Landers, the County attorney, and told him what happened. Mr. Landers recommended that Mr. Zdunek write a statement to the Commissioners and gave him the language to put in the email. Mr. Zdunek was reluctant to do so because if he didn’t do as Comm. Grisham directed, he would be insubordinate. Mr. Zdunek was reluctant to send the email out because he was afraid that it would be like throwing gas on the fire. In his mind, this was about an employee who had acted out of order and was fearful of her job, and a Commissioner who thought it was much more than that. Mr. Zdunek stated he is now involved with that as well and that he’s going to be sued over this. Mr. Zdunek contacted Comm. Stebbins and briefed her. She was amazed and said it was something that should not have gone up to this level and he agreed. She offered to talk to Comm. Grisham as she was driving with Comm. Grisham to Santa Fe the next day and she was going to talk to her about all these things. He asked her what he should do about the email drafted to send to the Commissioners. Comm. Stebbins indicated that she would rather that the email not be sent. Zdunek informed her that he would document that she told him not to send the email, and that he would wait to hear from her. The following day, Comm. Stebbins called him to inform that she had talked to Comm. Grisham and that no matter how she tried to build Mr. Zdunek, because she thinks highly of him, that Comm. Grisham was knocking him down and she could get nowhere with her on this. It was apparent to Mr. Zdunek that Comm. Grisham had made an opinion about him and was going to sue him for incompetence. Comm. Stebbins asked him to wait on the investigation because she wanted to talk to Ms. Smyer and that she’d let him know by no later than lOam the following morning. The next day, Comm. Stebbins called him and advised that she had talked to Ms. Smyer and that she’s not sure if she wants an investigation. On February 17, 2011, Mr. Szudek briefed Ms. Renetta Torres on what was happening. Ms. Torres informed him that it doesn’t matter that BC is going to investigate Ms. Smyer’s complaint and that she had engaged the services of Strategic Solutions. That was on Wednesday or Thursday morning of the week of February 21, 2011. Mr. Zdunek telephoned Comm. Stebbin and informed her that it no longer mattered if Ms. Smyer wanted the investigation because BC had engaged the services of an outside investigator and the
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investigation was going to take place as it is a requirement when an employee makes an allegation of harassment. Mr. Zdunek recalled talking to Ms. Smyer about options but he could not recall talking to Ms. Smyer about mediation being an option. Mr. Zdunek emphasized that he has no control or authority over BC elected officials. He recalled that he told Ms. Smyer that Comm. Wiener had said if he needed to apologize to Ms. Smyer, he would. Mr. Zdunek thinks that was the third option. None of the options, except for Ms. Smyer making the complaint, were pursued. Mr. Zdunek never pursued the options as he never heard a sense of direction from Ms. Smyer as to what she had decided to do. Renetta Torres advised him that when there are allegations of harassment, BC has a responsibility to investigate. At some point, it was discussed with Ms. Smyer that if she apologized to Comm. Wiener, that Comm. Wiener would apologize to her. Ms. Smyer’s office is around the corner from Comm. Wiener’s office and Mr. Zdunek was astounded that she could hear conversations in her office. When he spoke with Ms. Smyer, he told her that he believed her but found it amazing. At some point in their conversation, Ms. Smyer asked Mr. Zdunek if he wanted to hear the joke told to her by Comm. Wiener. He told her “no, not if it’s dirty”. (Mr. Zdunek stated that he didn’t want to hear the joke if it was dirty). Mr. Zdunek did not hear the joke that Ms. Smyer complained about until he briefed the employees of Strategic Solutions about the investigation and he still didn’t get the joke. Mr. Zdunek didn’t want to hear the joke from Ms. Smyer because he doesn’t like to hear dirty jokes. He didn’t see the relevance of Ms. Smyer telling him the dirty joke. Mr. Zdunek’s focus was the action that led Ms. Smyer to his office and he didn’t see the connection between the joke and the incident on February 17, 2011. Mr. Zdunek didn’t understand that Ms. Smyer was connecting the incident on February 8, 2011, with the incident which occurred on February 17, 2011. Mr. Zdunek stated that Comm. Grisham’s other part-time assistant, Ashley Sanderson, went to talk to him in his office. She indicated that she is aware that a certain Commissioner came off on him really hard and that as time goes on this Commissioner may change her opinion of him. Mr. Zdunek told Ms. Sanderson that he hoped that would happen. Mr. Zdunek doesn’t know if she was sent as an emissary by someone or if she went completely on her own to talk to him. Mr. Zdunek checked with BC HR Department to see if there have been any recorded complaints of sexual harassment on record filed against Comm. Wiener. He was told that there were not. Mr. Zdunek was informed that Kelly Smyer wants a written apology from Comm. Wiener. Mr. Zdunek stated he has no authority over elected officials. In response to Mr. Zdunek’s inquiry, Ms. Rita Montoya informed Mr. Zdunek that she does not know if Comm. Grisham filed a formal complaint against Mr. Zdunek.
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At the conclusion of the interview, Investigator Montoya requested any and all documentation that Mr. Zdunek may have written or acquired during his involvement in the circumstances surrounding the investigation of Ms. Smyer’s complaint. Mr. Zdunek stated that Ms. Heidi Warren will send the requested documents to Ms. Montoya right away. 10. Interview with Heidi Warren: Ms. Warren has been employed by BC for twelve years. She is an at-will employee and her job title is Assistant to the County Manager. She has reported to Mr. Tom Zdunek, interim County Manager, since January 31, 2011. Ms. Warren is familiar with the BC sexual harassment policy and has attended sexual harassment training throughout her years of employment. Ms. Warren sees the BC County Commissioners on regular basis as her office is on the same floor as the BC Commissioners. Ms. Warren assisted Kelly Smyer the first three weeks of her employment getting oriented to her new job. Ms. Smyer is an at-will employee and is a political appointee. She works for Comm. Grisham. Ms. Warren doesn’t know if Ms. Smyer receives all the same benefits as a regular permanent BC employee. On February 17, 2011, Ms. Smyer approached Ms. Warren in her office. She asked about Mr. Zdunek’s availability. Ms. Warren informed her that he was in a meeting. Ms. Smyer stepped in her office and appeared to be visibly upset. Her eyes were red. She spoke in a controlled manner but shortly after she started speaking she was fighting back tears. Ms. Smyer told Ms. Warren that she had an altercation with the Commissioners. She stated that approx. a week earlier Comm. Wiener had told her an inappropriate joke; and that she told him she didn’t think it was appropriate, and found it offensive. She then told Comm. Grisham about the joke. Ms. Smyer explained to Ms. Warren that on February 17, 2011, Comm. Wiener and Comm. DelaCruz were talking as they were walking by her office on the way to their offices. Comm. Wiener stated to Comm. DelaCruz that they needed to be careful how they say things in front of Comm. Grisham because she’s real sensitive. Ms. Smyer felt like they were joking about something that she perceived as a very serious matter. Ms. Smyer approached them and said “the incident you are referring to didn’t involve my Commissioner, it involved me, and I didn’t appreciate you joking about it now.” Comm. Wiener apologized for speaking so loudly. Ms. Smyer expressed to him that he didn’t don’t need to apologize for being loud but for being insensitive. Somewhere in that conversation, Comm. Johnson showed up. Ms. Smyer was very concerned about speaking out in front of three Commissioners. It was Ms. Warren’s perception that she was afraid of losing her job. She asked Ms. Warren if she was going to be in trouble. Ms. Warren assured her that she had rights and asked her if she wanted to file a complaint through the BC HR Department. Ms. Smyer stated that she didn’t have any intention to
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file a complaint but just wanted to make sure someone knew about the incident. Ms. Warren assured her again that she had rights and asked her if she was familiar with the BC sexual harassment policy. She tried to print it for Ms. Warrant but there was a technical problem. She called BC HR Department to request a copy. She was informed that they had a copy and Ms. Warren went downstairs to the 4’ floor to get the policy. Ms. Warren was not able to get the copy but asked to speak with Matthew Marquez. He didn’t have a copy of the sexual harassment policy. Ms. Warren explained to him briefly that someone had reported an inappropriate comment from a BC Commissioner. Ms Warren was directed to have the person go directly to Ms. Renetta Torres since it pertained to a Commissioner. Ms. Smyer didn’t want to make a formal report and was anxious to get out of the office as she was upset, and was going to Taos with her family. Ms. Smyer went back to her office and as she was walking out, Ms. Warren informed her that she was not able to get a copy of the policy. Ms. Warrant walked with her to the main corridor and told her that she would have the policy for her the following Tuesday. She asked her again, “Are you sure you don’t want to report this? Ms. Smyer asked Ms. Warren at least two times if she was going to get in trouble. Ms. Warren hugged her briefly to reassure her. Once again, Ms. Smyer asked her,” Heidi, am I in trouble? Ms. Warren again assured Ms. Smyer that she wasn’t, and recommended that she document everything and she said she would. She went into Mr. Zdunek’s office and explained everything that had just happened to Mr. Tom Zdunek and Ms. Renetta Torres. She didn’t want to make a report but seemed more concerned about whether she was going to get in trouble. Ms. Torres didn’t say too much but thought it odd that she wouldn’t want to report it. The next day, she received a voice mail message from Ms. Smyer and she left her phone number. Mr. Zdunek called her back somewhere around 10 am and advised Ms. Warren that he’d be meeting with Ms. Smyer the following Monday at S am. When Ms. Smyer appeared for the meeting with Mr. Zdunek, she was given a copy of the sexual harassment policy. She provided a written narrative that she prepared. On February 21, 2011, or February 22, 2011, Ms. Smyer moved to another office. Ms. Warren is aware that Ms. Patricia Chandler, who is an employee in the BC County Manager’ s office, told her that she heard a comment that Comm. Wiener said as he walked by the office of Evelyn Chacon and Jovan Roybal. The comment was, “I had forgotten that this is the fertile zone.” Ms. Warren stated about Comm. Wiener, “I believe the man has no filters. I don’t think he thinks about what he says. I don’t think he makes the comments with malice but he doesn’t have a social filter.” Ms. Warren has not heard any inappropriate comments from Comm. Wiener. She has observed that Comm. Wiener has a tendency to socialize with the girls that are a little younger and attractive like summer Intern, Nicole Campos, who is no longer employed. She is aware that Comm. Wiener got into trouble for passing on an inappropriate joke. It was sent from hi s personal email address. Comm. Wiener sent it to Thaddeus Lucero, former County Manager. Comm Wiener thought
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Mr. Lucero had sent it on to the media but he did not. There were no repercussions, just the bad press. Ms. Warren stated that it is her opinion that most people in general get along with him. It is only her opinion, but Comm. Wiener might make some women feel uncomfortable. She regards him as a little bit of a womanizer but reflected that it’s perhaps very judgmental for her to say that. Comm. Wiener does not make Ms. Warren feel uncomfortable. She is aware that Comm. Wiener travels a lot. He is very sociable and refers to everyone as his good friend. NOTE: (Ms. Warren submitted a written chronology of her interaction with Ms. Smyer on February 17, 2011)-See Exhibit F 11. Interview with County Clerk Maggie Toulouse Oliver: Ms. Oliver has served as Bernalillo County Clerk for about four years and six months. She is located on the 6th Floor of One Civic Plaza in Albuquerque, NM. Ms. Oliver met Kelly Smyer several years ago (2001) when they briefly served on a Board. Ms. Oliver didn’t see her again until January 1, 2011 at the swearing in ceremony of Comm. Michelle Grisham. Ms. Oliver stated that Ms. Smyer is employed as Assistant to Comm. Grisham. Ms. Smyer was hired on or about January 1, 2011. She is a part time employee and her office is on the 10th floor. Ms. Oliver has no direct knowledge of Ms. Smyer’s allegations against Comm. Wiener. Ms. Oliver stated she has direct knowledge of two jokes that Comm. Wiener told in her presence which she took considerable offense to. The first joke that she recalled was in early to mid 2009. There was discussion going in the BC Commissioner meeting and there was discussion about changing positions on a certain issue and Comm. Wiener leaned over to her and said, “I don’t care what position we take, as long as doggy style is included”. It was clear the joke had sexual connotation and made her feel uncomfortable. She did not respond to the comment, and ignored it. Comm. Wiener then leaned over to Comm. DelaCruz and she suspects that Comm. Wiener may have told him the same joke. The next joke told by Comm. Wiener was in January 2011 when she and other staffers were behind the dais enjoying a light meal. Comm. Wiener started to tell a joke and said something like, “have you heard about the fraulein who came over from Germany?” At that point, Comm. Johnson said,” oh, no”, and Comm. Grisham said, “don’t go there”. Comm. Wiener continued to tell the joke,” She was walking in the park and eleven men jumped on her and were raping here and the fraulein said “nein, nein” and so two got off. The joke was about rape,-j..FlJL. 117. Ms. Oliver explained that nein means no in English. She had a physical reaction of shock and anger. She got up and was walking out of the room and said “now you know who to avoid when you’re sitting on the plane on the way to attend the National Association of Counties Meeting to be held in Washington DC in March 2011”. On her way out, she apologized to Comm. Johnson about what she had said and he stated he understood.
Comm. Wiener approached Ms. Oliver at a meeting the following Friday and asked her if he had offended her and she told him that yes he had. Comm. Wiener then apologized to her. Comm.
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Wiener likes to make jokes and usually they are your usual stupid jokes but not usually sexual in nature. Comm. Grisham was present when Comm. Wiener told the “German Joke” and laughed uncomfortably but she didn’t feel comfortable saying anything about it. Ms. Oliver attends all of the BC Commission meetings and takes one of her two Assistants with her on a rotational basis. At the Commission meetings, Comm. Wiener has often approached her Assistant, Ms. Define Morelos-Vaughn, (who is a very attractive lady), and gets very close to her and engages her in conversation and asks her questions about her personal life and her marital status. His intense attention to her has made her feel uncomfortable and she has gone so far as to ask Sandy Fish to walk her to her car every night after Commission meetings because she is afraid to run into Comm. Wiener by herself. Ms. Oliver’s understanding of sexual harassment laws is that they pertain to employer-employee relations. Because of the fact that she and Comm. Wiener are on the same level, she never felt it was incumbent on her to bring a sexual harassment complaint against Comm. Wiener. Ms. Oliver believes that the only possible type of sanction for Comm. Wiener would be censure from the BC Board but she is not suggesting that should happen.
12. Interview with Ms. Denine Morelos-Vaughn:
Ms. Morelos-Vaughn is Assistant to County Clerk-Maggie Toulouse-Oliver. Her office is located on the 6th Floor of One Civic Plaza in Albuquerque, NM. Ms. Vaughn met Comm. Wiener in approx. April 200 when he submitted his name as a candidate to run for Bernalillo County Board of Commissioners. She described Comm. Wiener as a joking type of person. On one occasion, he visited her in her office Ms. Vaughn stated that she is not aware of any inappropriate conduct by Comm. Wiener towards anyone. Comm. Wiener’s conduct towards her is more corny than sexual. Comm. Wiener has never offended her in any way. Comm. Wiener talks with her and Maggie Oliver at the Commission meetings. He compliments their appearance and makes corny jokes. Ms. Oliver is very protective of Ms. Vaughn and always makes sure that someone escorts her to her vehicle because of the attention that Comm. Wiener gives her. Ms. Morelos-Vaughn has no personal knowledge of the allegations of sexual harassment reported by Ms. Kelly Smyer against Comm. Wiener.
B) Evidence provided by BC Human Resources Department indicates that BC has Sexual Harassment Policy in place which was modified in November 2010; and an Anti-Harassment Policy which was modified in January 2011. All newly hired employees receive a copy of the Policy at the new employee orientation. (See Exhibit B)
KELLY SMYER INVESTIGATION
C) The evidence shows that Ms. Smyer verbalized a formal sexual harassment complaint to Mr. Tom Zdunek, BC County Manager, on February 18, 2011. Mr. Zdunek referred Ms. Smyer to the BC HR Department to file a complaint, but she declined. From February 18, 2011, to February 23, 2011, BC County Manager, Mr. Tom Zdunek, talked to the Complainant-Ms. Kelly Smyer, Comm. Wiener, Comm. DelaCruz, Comm. Johnson, and Comm. Grisham, regarding their knowledge of the events which led to the complaint by Ms. Smyer. (See ExhibitA & ExhibitE) On February 23, 2011, BC hired Strategic Solutions, an EEO Consultant, to investigate the allegations. The investigation began on March 1, 2011 and was completed on March 31, 2011.
D) Record evidence obtained from the web site for the US EEOC (www.eeoc.gov) reveals that elected officials are not covered by Title VII of the Civil Rights Act of 1964, as amended. (See Exhibit C)
E) Respondent-Comm. Wiener denied that he sexually harassed Ms. Kelly or subjected her to a hostile work environment. Comm. Wiener confirmed that he told Ms. Smyer the “Wiener Johnson” joke on February 8, 2011. Comm. Wiener asserted that elected officials are not covered by TitTe VII; and there is no evidence of a pattern of discrimination. (See Exhibit A-Audio CD)
F) Witness testimony from Mr. Wayne Johnson, BC County Commissioner, revealed that in January 2011, at a BC Commissioner’s meeting, Comm. Wiener told an inappropriate joke that he was offended by. Testimony from Ms. Maggie Oliver, BC County Clerk, revealed that in January 2011, Comm. Wiener told an inappropriate joke that she was offended by. (See Exhibit A-Audio CD)
G) The evidence shows Ms. Smyer set forth a formal report of sexual harassment on February 18, 2011. Documentary evidence obtained during the investigation reveals that on February 18, 2011, Comm. Stebbins sent an email to Comm. Grisham and Mr. Tom Zdunek wherein Comm. Stebbins states EEO Training will be scheduled for the BC County Commissioners and their Assistants as soon as possible. The sexual harassment training for the BC Commissioners and their Assistants will take place in approx. June 2011. (See Exhibit D) NOTE: It is suggested that Mr. Tom Zdunek, interim County Manager, attend the EEO training session for the BC Commissioners to enhance his knowledge and understanding of EEO laws, his responsibilities under the applicable laws, and to improve his sensitivity to victims of sexual harassment. H) The evidence substantiates that on February 8, 2011, Comm. Wiener told Ms. Smyer an inappropriate joke. The joke, though inappropriate, was not severe, pervasive or sufficiently egregious to establish that Ms. Smyer was subjected to a hostile work environment.
KELLY SMYER INVESTIGATION
Guidance from the EEOC Compliance Manual indicates that that an isolated act of harassment does not rise to the level of a hostile work environment or sexual harassment as the harassment has to be pervasive, severe, or egregious. In addition, there was not sufficient evidence to support Ms. Smyer’s allegation that Comm. Wiener’s comments and actions on February 17, 2011, were a form of harassment, discrimination, or retaliation towards her as the comment was directed at Comm. Grisham. (See Exhibit A-Audio CD)
I) Testimonial evidence from Comm. Wiener, Comm. DelaCruz, Dolores Herrera, and Darrell Dady shows that Ms. Smyer’s conduct on February 17, 2011, was viewed as “confrontational, emotionally upsetting, attacking, and shocking”. Testimony from Comm. Johnson testified that Ms. Smyer’s demeanor on February 17, 2011, was “stern but not unprofessional”. (See Exhibit A-Audio CD)
J) The evidence shows that shortly after February 17, 2011, BC facilitated Ms. Smyer’s move to a different office to make her feel more comfortable. Ms. Smyer agreed to the move. (See Exhibit A Audio CD)
K) The evidence shows that since February 17, 2011, the door to the office suite of Comm. Wiener and Comm. DelaCruz has been closed. (See Exhibit A-Audio CD)
L) The evidence shows that repeated attempts were made by Ms. Heidi Warren, and Mr. Tom Zdunek to direct Ms. Kelly Smyer to the BC Human Resources Department to file a complaint of sexual harassment, and Ms. Smyer chose not to go. (See Exhibit A-Audio CD & Exhibit F)
KELLY SMYER INVESTIGATION
V. SUMMARY AND CONCLUSION
The evidence shows that after Bernalillo County employee, Ms. Kelly Smyer, reported an allegation of sexual harassment, Bernalillo County took immediate appropriate affirmative action when: a) an independent consultant was immediately hired to conduct an internal investigation of the complaint by Ms. Smyer, b) Bernalillo County made plans to provide sexual harassment training for the Bernalillo County Commissioners and their Assistants, and c) Mr. Tom Zdunek facilitated the move of Ms. Kelly Smyer to a different office location on the
The evidence shows that the alleged harasser, Mr. Michael Wiener, has served as a Commissioner on the Bernalillo County Board of Commissioners since January 2009. EEOC Directives Transmittal, Number 915.003, of the EEOC Compliance Manual, Section 2, Threshold Issues: (5) Coverage of Elected Officials states, “Elected officials are specifically excluded from coverage under Title VII”. Ms. Smyer’s allegation that on February 8, 2011, Commissioner Michael Wiener told her a joke which she regarded as inappropriate is substantiated. In addition, Commissioner Wayne Johnson and Bernalillo County Clerk, Ms. Maggie Talouse-Oliver, testified about jokes told by Commissioner Wiener which offended them. However, this conduct by Commissioner Wiener does not meet the legal definition of a hostile work environment. The merits of this complaint are mitigated by the fact that Commissioner Michael Wiener is an elected official and as such is exempt from coverage by Title VII. There is no established mechanism in place to impose any form of corrective action on Commissioner Wiener. That does not preclude the Chair of the BC Board of Commissioner from discussing the evidence set forth in this report with Commissioner Wiener. The evidence shows that Commissioner Michael C. Wiener will attend an orientation session scheduled for all Bernalillo County Commissioners and Training in Sexual Harassment will be covered during the session. Commissioner Wiener has not previously attended Sexual Harassment training. If the training is effective, it will likely minimize the potential for any future liability. The evidence shows that after Ms. Smyer reported her allegation of sexual harassment, Bernalillo County proactively set forth affirmative prevention measures to ensure that Ms. Smyer is employed in a work environment which is free of any form of harassment, discrimination, or retaliation. Based on the evidence, there is not sufficient evidence to support a violation of Title VII of the Civil Rights Act of 1964, as amended.
NOTE: Ms. Smyer and Commissioner Wiener both showed interest in resolution, It is suggested that a skilled Mediator may be successful in facilitating an agreement between the parties.
KELLY SMYER INVESTIGATION
Addendum to the Kelly Smyer Report During the Decision Making Meeting held on April 19, 2011, the Decision Making Panel requested that this Investigator complete the following tasks: 1. Contact the Association of Counties to determine what training the organization provides, and if Commissioner Michael Wiener attended any form of training through their organization; 2. Contact the Municipal League to determine what training the organization provides, and if Commissioner Wiener attended any form training through their organization; 3. Review the BC Sexual Harassment Policy, the BC Anti-Harassment Policy, and the BC Workplace Violence Policy to determine if there has been any violation of any of these three policies by Commissioner Michael Wiener regarding the complaint by Kelly Smyer.
Addendum to the Kelly Smyer Report This Investigator took excerpts from the applicable part of the policy as it pertains to the question about whether or not Commissioner Wiener violated any of the three BC policies. I. The BC Anti-Harassment Policy Page 4, Paragraph 3, of the BC Anti-Harassment Policy states: “By definition, sexual harassment is not within the course and scope of any individual’s employment or elected office with the County of Bernalillo.” Page 4, Paragraph (7) & (8) of the BC Anti-Harassment Policy states: Behavior and Obligations of all Person Page 4- Paragraph 7
“In order to provide a productive and pleasant working environment, all employees and elected officials must act with courtesy, sensitivity, and respect toward each other, applicants, and independent contractors.” “Any person who experiences discriminatory harassment from a co-worker, third party or elected official should and is strongly encouraged to immediately make it clear to the offender that such conduct is offensive.” Investigator Comment: The BC Anti-Harassment Policy clearly establishes that all BC elected officials are covered. 2. The BC Sexual Harassment Policy Page 5, “Investigatory Process-Non-Employees” states: “Although the County’s ability to discipline a non-employee is limited by the degree of control, if any, the County has over the non-employee, the County shall investigate allegations of inappropriate conduct raised by its employees involving non-employees and take appropriate action under the circumstances.” Investigator Comment: This BC Sexual Harassment policy does not specifically indicate that elected officials are covered. However, it does address BC’s commitment to investigate allegations raised against non-employees, and to take appropriate action under the circumstances. It is unclear whether an elected official is considered to be a non-employee. This policy does not address if elected officials are covered by this policy as it does in the BC Anti-Harassment policy. 3. The BC Workplace Violence Policy
a. Section (2) of this Policy states the County mandates a “zero tolerance for violence” environment and will make every effort to prevent violent incidents from occurring. Violence for our purposes includes physically harming another, shouting, shoving, pushing, harassment, intimidation, coercion, brandishing weapons, and threats or talks of violence. This policy establishes procedures to control and prevent workplace violence. b. Section (3) of this Policy, “Expected Employee Conduct” states: To ensure both safe and efficient operation, the County expects and requires all of its employees to display common courtesy and engage in safe and appropriate behavior on the job at all times. c. Section (4) of this Policy, “Prohibited Conduct and Activities” states: Prohibited conduct and activities may include -Racial or ethnic slurs; -Sexually harassing remarks; -Committing injurious acts motivated by, or related to, domestic violence or sexual harassment
Section 5, Identifying and Responding to Risks
-Security Planning for At-Risk Employees. Some employees are known to be at risk for violence because of the nature of their jobs. Other employees can be at risk because they are subject to violence, threats, or harassment from a current or former spouse or partner or other non-employees. Section 8, Enforcement The Human Resources Dept., with the assistance of appropriate Risk Management personnel, must immediately investigate any reported violence, harassment, or threats committed on County premises. All employees who commit violent acts or otherwise violate this policy are subject to corrective action or discipline, up to and including termination of employment.
The BC Workplace Violence Policy states that violence in the workplace may include acts of harassment, and that prohibited conduct and activities may include: sexually harassing remarks or committing injurious acts motivated by or related to domestic violence or sexual harassment. This policy does not indicate if elected officials are covered by this policy.
Sum ma ry/Concl usio n: Review of the BC Anti-Harassment policy indicates that the actions of elected officials and Commissioner Michael Wiener are in fact covered by this policy. In addition, Page 4, paragraph (7) & (8) of this policy state5 “in order to provide a productive and pleasant working environment, all employees and elected official must act with courtesy, sensitivity, and respect toward each other, applicants, and independent contractor. This policy states further that if there is an allegation of inappropriate conduct involving a “non-employee”, BC can take appropriate action under the circumstances. Review of the BC Sexual Harassment policy does not indicate if an elected official is covered by this policy. Review of the BC Workplace Policy does not indicate if an elected official is covered by this policy. The BC Sexual Harassment Policy and the BC Workplace Violence Policy state that acts of harassment, and sexual harassment are covered by both policies but neither policy addresses whether or not elected officials are covered, and do not provide any guidance about the handling of complaints filed against elected officials. Based on the evidence set forth in the investigative report, it is this Investigator’s opinion that the evidence is not sufficient to support a violation of the BC Workplace Violence Policy. If BC finds it necessary and prudent to impose some type of disciplinary sanction against Commissioner Wiener for the inappropriate jokes that offended Kelly Smyer, BC Commissioner Wayne Johnson, and BC County Clerk Maggie Oliver then the BC Anti-Harassment policy establishes that BC can take appropriate action regarding the actions of non-employees. The severity and type of action will have to be determined by the Decision Making Panel. In addition, it should be noted that although there is no individual liability under Title VII, Commissioner Wiener could be sanctioned about the possibility that there could conceivably be some individual liability in a lawsuit pursuant to Section 1983 and the New Mexico Human Rights Act.
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