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Did Lathrop miss chance to save $200K?

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POSTED January 10, 2009 12:24 a.m.
LATHROP — Did Lathrop City Attorney Salvador Navarrete fail to provide adequate legal advice to the City Council which would have saved the city at least $200,000 in the still ongoing Matt Browne wrongful termination case?
Browne’s legal counsel, San Francisco public employee attorney Ellen Mendelson, said the former chief building official’s continuing case to clear his name and get his job back would have been resolved after the city presented its case during the hearing process back in October when she “moved to dismiss the entire case.”
But the hearing officer Douglas Barton said “he couldn’t do that because he did not have the authority (from the council) to do so,” explained Mendelson.
“Had the council been appropriately advised by their legal counsel (city attorney Salvador Navarrete) as to what kind of authority the council could provide the hearing officer, this case (would have been resolved) a long time ago,” Mendelson said.
But, she said, Navarrete neglected to advise the council that a dismissal of the case was a council option.
Barton, in his role as the judge in the Browne case, was simply following the parameters of the resolution adopted by the city council giving him directions on the actions he could and could not do.
“Despite my repeated requests that he do something to talk to council to let them know that they had the power (to direct) that this (wrongful termination hearing) be held as a public hearing, he didn’t do that. And he didn’t do that because he was beholden to (Michael) Colantuono. Navarrete should have done that (notified and advised the council),” charged Mendelson.
Colantuono was the special counsel hired by the city specifically to represent former City Manager Yvonne Quiring in the Browne case. The city attorney’s role was to provide legal advice to the council and to the city, Mendelson said. But with the hearing officer’s failure to dismiss the case simply because he did not have that directive from an unknowing council, the city attorney obviously neglected to do that, according to Mendelson.
“He is the most ineffectual, impotent city attorney I’ve ever met. The city attorney for Lathrop had absolutely zero legal input into anything in this case. He has done nothing to represent the city in terms of this action, nothing to protect the city from liability, nothing to advice the council about what they can and cannot do. His job was to represent the city and he has done zero. He’s been awful. He’s Michael Colantuono’s boy. The entire case was controlled by Colantuono,” added Mendelson.
In the event a lawsuit is filed against the city, one of the reasons would be “because the city council failed to do things that they should have done, and the reason for that is because there was no proper advice by their legal counsel (Navarrete) as to what their options are,” Mendelson charged.
The city declined to respond to Mendelson’s comments and allegations at this time. However, after talking to the city attorney about Mendelson’s statements and allegations, Public Information Officer Mike Esau issued the following statement: “This is part of a personnel matter that is in litigation and, therefore, it would be inappropriate for staff to make a comment at this time, but leaves open the possibility that we’d make a statement at a later time.”
 
Attorney confident ruling will be in Browne’s favor
Despite Mendelson’s frustration over the hearing officer’s inability to dismiss the case, which extended the hearing and delayed the process, she is confident that she is going to win the case for her client.
For one thing, she said, “in order to sustain the filing, he (Barton) has to find misconduct, and he has to find misconduct that supports Matt’s termination. I don’t think they had proved that,” Mendelson said.
Furthermore, she said that in her long experience as a public employee attorney, it is a rare legal occurrence for two judges to rule differently on the same case, and she has said so to one of the attorney’s in Colantuono’s office who is assisting in the Browne matter.
The two judges Mendelson was referring to was Daniel Garcia, the EDD administrative law judge who presided over Browne’s appeal on the city’s denial of his application to collect unemployment insurance benefits, and Barton, the hearing officer.
“In my experience, if one judge finds one way, another judge finds the same way. It’s a very rare event for two judges to find opposite each other. It would be very unusual for a judge to find differently. We had a hearing before a qualified (EDD) judge. Daniel Garcia is a bright, capable judge who comes from a long line of judges. His brother is a Superior Court judge in San Francisco, an excellent judge here. And Daniel is also an excellent judge,” Mendelson said.
After a whole afternoon of testimonies at the EDD appeals court in Stockton provided by representatives of the city - made up of former city manager Quiring, Community Development Director Marilyn Ponton who was Browne’s immediate supervisor, and Colantuono, their legal counsel - along with Mendelson and Browne, Garcia ruled that he found no evidence that Browne had committed time card or worker’s compensation fraud which were among the reasons cited by city officials for his termination in February. Other allegations brought up by the city which were used as bases for Browne’s termination were also discussed at the Stockton hearing.
 
Lathrop does not have employment insurance liability to pay Browne costs
Some cities have employment insurance liability policies that gives them protection from such employment cases as Browne’s wrongful termination complaint. But according to Esau, Lathrop does not have such an insurance policy, which means the legal costs to cover Browne’s lengthy hearing process will be paid by taxpayers’ money. As of two months ago, the cost stood at $160,000. The Browne hearings were conducted in September and October. What was scheduled as three days of hearing stretched to about two weeks.
While the hearing process is over, transcripts have been completed, and the opposing legal counsels have submitted their case summaries with each receiving a copy of the other’s summary, costs continue to escalate. Per the direction of the council contained in the resolution they adopted for the Browne case, the hearing officer has an indefinite time to review the roughly 2,000 pages of transcripts. The anticipated time previously given for Barton to submit his recommendation to the council was mid-January or early February.
However, the Bulletin has learned that the hearing officer has not been able to work on the case since November due to illness and has just gotten back to work on it on Jan. 6.
It was learned by the Bulletin that Colantuono has filed a “notice of errata” in their legal summation. Mendelson though did not believe that this will significantly delay the process. Esau confirmed Thursday that Michael Colantuono has filed papers with the hearing officer “just to make a correction relative to testimony.”
Still, Mendelson could not help but wonder as to why the notice to make corrections on papers filed “a long time ago” was being done only now.
“It’s just a reference to testimony, not really significant. I think there’s something really funny going on here, the fact that this thing just came out of the blue,” she said.
“What they did is fire Matt for doing his job. They (the city manager) thought, and Ponton think, that his first duty is to the city, but that’s not it,” Mendelson said. “His duty is to facilitate building to make sure building structures comply with the codes.”
Browne was put on administrative leave with pay in July 2007. He was fired by the former city manager in February 2008. In both instances, Browne was not given any preliminary verbal warning nor a written explanation.
When he filed a wrongful termination complaint, he requested that the hearing be held open to the public and to the news media. The city denied his request.
The recommendation by the hearing officer will be forwarded to the City Council for further consideration and a final action during a meeting that will be open to the public on whether or not Browne should get his job back.
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