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Browne flap nearing end in Lathrop

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POSTED June 1, 2009 2:31 a.m.
LATHROP – The final step in the long-running wrongful termination charges filed by former senior building official Matt Browne against the City of Lathrop appears to be approaching the finish line.

The City Council is expected to vote on the recommendations made by the administrative law judge who presided over the cumulative 15-day hearing of testimonies late last year. The council members are expected to discuss in closed session the recommendations, followed by a public discussion on the matter during their regular meeting, before they make a vote on Administrative Law Judge Douglass Barton’s recommendations.

The June 23 council date, though, is still tentative, said Browne’s legal counsel, San Francisco public employee attorney Ellen Mendelson. She said she was notified of the scheduled date by City Attorney Salvador Navarrete.

However, Mendelson is questioning this delayed scheduling of the council hearing since the resolution that the council members approved last year to serve as the guideline for the Browne hearing clearly stated that the council would vote on the judge’s recommendations 10 days following their submission to city officials. Phone calls to members of the council Thursday afternoon seeking comment were not immediately returned.

At this point, though, Mendelson said, “My goal right now is to get (Matt Browne) back to work. My first and foremost goal since I took this care has been to get him back to work. Whatever happens subsequent to him getting back to work is a whole another issue. I’m not concerned about anything right now except getting Matt Browne back to his position at City Hall – inspecting, building, and being Matt Browne, the amiable, hard-working, honest civil servant.”

What the city did to “this affable, nice, amiable guy who got along with everybody and loved what he did” – bringing Lathrop “up from cornfields” in his 17 years with the city to the commercial and residential establishments that are there today, “in return for what he did is just hideous,” Mendelson said.

Barton’s conclusions and recommendations released on Good Friday, April 10, was a sweeping victory for Browne and his counsel, San Francisco public employee attorney Ellen Mendelson. Barton ruled that Browne be reinstated to his position as chief building official with back pay plus health and vacation benefits up to the date of his reinstatement.

Barton concluded, among other things, that former City Manager Yvonne Quiring denied Browne his due process before she fired him in February 2008 and that her decision to terminate his employment “does not comply with the city’s personnel rules and regulations concerning employee conduct standards, progressive discipline, and dismissal.”

Barton further concluded that Quiring failed to respond to Browne’s repeated requests for any explanation or documentation regarding the notice that he received about his impending termination, and that when he finally got a response he only had a two-month window to respond to the charges. That short response time “effectively deprived” Browne of any “meaningful” opportunity to review the documents and respond to the city manager before she made her decision to fire him, Barton added.

His report included other damning conclusions based on testimonies gathered from more than a dozen witnesses for the two sides which also mentioned Browne’s immediate supervisor, Community Development Department Director Marilyn Ponton. Among them:

•That in the six months Quiring placed Browne on paid administrative leave, “she and her staff assessed additional evidence of alleged misconduct and attempted to induce (Browne) to resign;”

•That allegations of misconduct “developed” while Browne was on paid administrative leave were “for the most part, not supported by substantial evidence;

•That Browne has never been disciplined before he was fire and that, in fact, he had “an excellent record of employment with the city” receiving “quite laudatory” evaluations;

•That neither Quiring nor Ponton had ever given him any notice of “less favorable perceptions of his work” until the month before he was placed on administrative leave.

Barton also concluded that he found “no evidence to support the (former) city manager’s contention that Browne was trading Building Code exceptions for favors from the project owners or developers” and that Browne “does seem genuinely to have been concerned about public safety and to have worked hard to manage the considerable construction that the city had encouraged.” He also stated that the “limited number of errors that the record evidences is simply not sufficient to terminate an employee with such a long record of meritorious service,” and that the additional allegations developed during his six-month administrative leave did not have any “substantial evidence.”

How the cash-strapped
city will pay Browne
City Manager Cary Keaten said money has been set aside strictly for the Browne case. Mendelson said she did not have any idea what that compensation amount would be.

Figures obtained in March indicated that the city had, up to that time, spent about $250,000 in legal fees in the appeal case that started way back in July 2007 when Quiring placed Browne on administrative leave with pay without explanation.

The council in a resolution that they approved on June 3, 2008 stated that $20,000 was being budgeted for the “engagement” of Barton as the hearing officer. That amount was taken from the Human Resources Department account.

Funds being used to cover the rest of the attorneys’ expenses are coming from the city’s general fund, or taxpayers’ money, since the city has no insurance coverage for the Browne case. Money in the general fund comes from sales tax and property taxes and is used for employees’ salaries as well as fire and police protection.

Those figures, though, only cover expenses paid to the attorneys representing management staff – Michael Colantuono and his office, and Barton and his law firm. They do not include costs connected with time spent by city staff – namely, the city attorney who is the legal counsel to the City Council; former city manager Quiring who resigned last year in October; former interim and now City Manager Cary Keaten; and, Ponton, among others.
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