An outside investigator hired this summer to analyze three harassment complaints against a high-ranking City of Palo Alto manager was instructed in his contract to deliver an oral rather than a written report -- a requirement some insiders have called an attempt to circumvent state public-records laws.
"I think this is an attempt to do an end-run around (the state's Public Records Act), and I don't agree with that," Vice Mayor Larry Klein said Wednesday.
Klein, who chairs the Council Appointed Officers (CAO) Committee of the City Council, said he was informed of the paperless investigation several weeks ago by City Manager Frank Benest.
"I think it is a far better practice to have written reports in serious situations," Klein said.
Council members Peter Drekmeier and John Barton, also members of the CAO Committee, said they were also told about the no-document instructions recently. The final member of the committee, Dena Mossar, said she wasn't notified.
"It's a challenging issue," Drekmeier said, noting that he hasn't determined his position yet.
"Some people are concerned that if there is a record, then it gets into the newspaper the person who is filing the complaint -- as well as the person who is receiving the complaint. It makes their lives very challenging," Drekmeier said.
City Attorney Gary Baum said no current policy exists specifying whether investigative reports should be written or oral. And both he and City Manager Frank Benest maintain the city hasn't instituted a new policy or practice.
"Virtually all allegations are investigated. Whether that's been in writing or not, that varies," Baum said Wednesday.
Asking for an oral report is "not abnormal," Benest said Thursday. "It really depends on the circumstances of any particular case."
Even city investigations that use outside investigators vary, Benest said -- some produce documentation; others don't.
Both Benest and Baum emphasized the city conducts many investigations at all levels of the 1,074-employee organization.
Assistant City Attorney Don Larkin said the reason this summer's investigation didn't have a paper report was to save money. The investigation had cost $8,940.50 as of Oct. 16, Larkin said.
He said earlier that the contract with an outside investigator hired two years ago to look into a report of city utilities employees "moonlighting" in Menlo Park -- initially believed to be a minor investigation -- had no such "oral report first" clause.
In this summer's case, the city hired David Reuben, of Davis-based DR Associates International, on June 13 to investigate complaints against the high-ranking employee.
The contract instructs Reuben to provide an oral report and to only provide a written report if requested by the city to do so, in writing.
"If all of the allegations subject to your investigation are unfounded or if the investigated party is exonerated, the City may elect not to request a written report," the contract states.
One complainant in the investigation told the Weekly she was told "that nothing would be put on paper."
Another complainant said she was told why the investigation was being conducted orally.
The investigator said to her that he "was told not to write stuff down because the press could get it. If they documented anything, then they would have to give it to the press," she said.
"There is no written report because they didn't want the press to get a hold of it," she said.
The Weekly learned of the harassment allegations via an anonymous letter in late September. A Public Records Act request by the Weekly for documents relating to the investigation was denied by the city Oct. 10.
"We can assure you that no investigation report exists that sustained charges of misconduct, including sexual harassment, creating a hostile work environment or unfair practices," Larkin wrote.
In 2006, a Weekly lawsuit forced the city to release documents relating to Utilities Department investigation, which resulted in the discipline of 19 employees. That investigation ballooned from a single moonlighting incident (in which employees worked on a private job while on city payroll and with city equipment) to a $300,000 probe that ultimately cost the utilities director and two department supervisors their jobs.
Baum cited that suit last April when he released a report from the investigation of Assistant City Manager Emily Harrison for harassment and other inappropriate behavior.
"If we have a written report, we have to turn it over," Klein said, adding that the law is clear based on the ruling on the Weekly's lawsuit.
This time, Benest decided to circumvent the requirement by keeping the investigation paperless, Klein said.
Klein said "somewhere down the line" the council will discuss the issue.
Mayor Yoriko Kishimoto also said she thought the council should establish a policy governing documentation of investigations.
"How can we be as open as possible with the public and let them know what's happening while balancing that with the legal, personnel and confidentiality issues and the need to create an environment where employees won't be afraid to talk to an investigator?" Kishimoto said.
"I know there has to be some middle road there."
The subject of the recent investigation remains employed by the city.
Weekly Editor Jay Thorwaldson said names of complainants or other witnesses would never be published unless there are special circumstances, such as if the complainant in an investigation agreed or wanted to be named or filed a lawsuit or other form of public complaint. He said that is a longstanding policy of the Weekly and a tenet of responsible journalism.
The policy is designed so as not to "chill" an investigation, and if any officials are warning employees their names could appear in print if they report something then that is erroneous, he said.