City Manager Tim Ogden has been put on paid administrative leave by the Manteca City Council.
The council on Wednesday appointed Miranda Lutzow as acting city manager. Lutzow has been on the job for around a month as the city’s human resources director after Joe Kriskovich vacated the position after being placed on leave following the filing of an employee complaint.
The move happened after a highly unusual public exchange centered on concerns by City Attorney John Brinton who questioned what he believed was a move by the council to bar him from a closed door session to discuss Ogden’s employment status. After Brinton’s statement where he made it clear that if he was not allowed into the session he wanted assurances the council would hold him harmless from any financial liability from possible litigation that might arise from the closed door meeting, the council told Brinton that they wanted him in the meeting.
About 20 minutes later they briefly reopened the public meeting with all involved saying there had been a miscommunication and then returned to a closed door session apparently to discuss Ogden’s employment status based on discussions that took place during a nearly 6 hour long closed door session Tuesday night.
Brinton went to great lengths to apologize after it was determined in the closed session there had been a miscommunication.
The only public comment regarding Ogden was that he was being placed on paid leave while noting an “issue has been brought to (the council’s) attention that needs to be investigated.”
It marks the second time in 34 months that a council has sent a city manager home and told them not to do any city work while continuing to pay them. In November of 2017 that is the directive they gave then City Manager Elena Reyes who was terminated 3½ months later after being handed a severance package in excess of $240,000.
Although council members and Brinton ultimately dismissed the flare-up as the result of a miscommunication it was clear from a comment made by Lutzow that someone had given some thought in advance to possibly keeping Brinton out of the closed door session.
Brinton brought up his concern prior to the council getting ready to go from the public session attended by a dozen plus citizens that included a liberal sprinkling of downtown merchants, Ogden’s attorney and former councilman Mike Morowit who narrowly lost re-election in November to behind closed doors.
Brinton insisted on making his remarks in public but declined to speak unless what he was about to say was taped for the record. When he was informed the city has never recorded the public sessions of special meetings if there was not an action item on the agenda besides the business taking place behind closed doors that under law can include litigation, personnel and negotiation items, Brinton declined to start until he had a personal recording device.
He point blank asked whether he was the subject of a closed session item to discipline or dismiss an employee. The city manager and the city attorney are the only city workers hired directly by the council. The council has voted to add the city clerk’s job to the list of municipal workers that they would have the sole authority to hire and fire.
He referenced his contract that requires him or a representative of his office to attend every regularly scheduled and special council meeting as well as closed door sessions.
Brinton noted in almost 40 years serving as the city attorney he had only been asked to stay out of a meeting once. That was in 2003 based on a request made by then Police Chief Charlie Halford who was relaying information to the council regarding a criminal investigation by the San Joaquin County District Attorney’s Office regarding then council member Dave Macedo.
Macedo eventually resigned following prosecution of attempting to extort a bribe from Brinton in exchange for him getting a contract to continue as city attorney.
During his comments that he made from the podium and not his usual seat next to Ogden, Brinton referenced his understanding that the law firm of Liebert, Cassidy, & Whitmore had been asked to advise the council on the issue they were planning to discuss away from the public.
At one point Brinton questioned whether the law firm has the specific legal expertise for whatever the council was going to discuss. Brinton, in his role as city attorney, was involved in the drafting of that contract. The Sacramento-based firm’s website states its legal areas of expertise as the Affordable Care Act, audit services, employment law, labor relations and collective bargaining, public education, wage and hour issues, investigations, public safety, retirement, health and disability, business, and construction.
Lutzow, who stepped up to the podium, said the contract was signed and that there was no requirement that an attorney be present in a closed session and that the council had the legal ability to determine who could and could not join them behind closed doors.
At one point Brinton asked Lutzow whether the Sacramento law firm was aware of his contractual obligation to be at every City Council closed door session and she replied “no.”
Brinton emphasized that he is employed by the council and not individual council members. He added under law he has a fiduciary duty to strive to protect the city from being encumbered with a lawsuit that could cost taxpayers significant money.
The current brush up is reminiscent of a mid-1990s debacle that ended up costing Manteca taxpayers nearly $1 million over three years in outside legal costs involving employment issues surrounding the city manager, the conduct of council members , and employee complaints of harassment. It got so out of control that at one point when a public record was leaked the council majority accused then council member Wayne Flores of doing so. That one investigation — essentially minutiae compared to other issues outside lawyers were looking into — cost $25,000 and led to the conclusion Flores did nothing wrong.
The nearly $1 million in billings included paying for private plane trips for lawyers from the San Francisco Peninsula to Stockton Airport were uniformed Manteca Police officers were dispatched several times by city administration to chauffeur the lawyers to and from the airport so they would not have to drive to Manteca.
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