Thursday, July 23, 2015

Letter to Millville City Commission

July 23, 2015

Hon. Michael Santiago, Mayor and members of the
Millville City Commission
via e-mail

RE: An Ordinance Amending Chapter 46, §§ 63 and 64 of Article XIII (Employee Complaint Policy)

Dear Mayor Santiago and Commissioners:

I understand that the captioned ordinance, which was scheduled for final reading and passage on July 21st, was postponed for further discussion and consideration.  I have reviewed both the original ordinance and the previously proposed amendments and would like to offer my comments.

A critical flaw, in my view, is contained in both the present and previously proposed amendment to § 46-63(b).  That provision requires the City Administrator to advise "the Commissioner in charge of the department where the complainant is employed" upon receipt of a complaint and calls for that Commissioner to choose the person who will investigate the complaint.

The flaw becomes apparent when one considers the following hypothetical: Suppose that an employee in the Department of Public Works files a complaint against Commissioner Ennis. In accordance with § 46-63(b), the City Administrator would advise Ennis--the Commissioner in charge of Public Works--of the complaint's filing and presumably of the complainant's identity.  And, according to § 46-63(b), Ennis would be allowed to choose the person who will investigate his own alleged wrongdoing.

First, if the City believes, as I do, that employees who encounter wrongdoing by their department's Commissioner should be encouraged to report it, § 46-63(b) is counterproductive because it guarantees that that Commissioner will immediately be informed of the complaint and the identify of the complainant.  I believe that complaints--at least against City Commissioners--would be more forthcoming if the complainant's identity--at least in the initial stages--was not disclosed to the Commissioner that oversees the complainant's department.

Second, it seems completely wrong to me for a Commissioner against whom a complaint has been filed to have any role in choosing the complaint's investigator.

Beyond these, there are other provisions in both the original code and the proposed amendment that don't make a great deal of sense.

For example, § 46-63(a) establishes a mandatory reporting procedure when wrongdoing is discovered by an employee.  ("An employee who believes that he or she has been subjected to or is aware of wrongdoing in the workplace shall submit a complaint to the City Administrator within 20 days from the date of the alleged incident.")  Yet, § 46-61 seems to make this optional and allows employees to "make a verbal complaint at their discretion."

There is no procedure in place regarding how verbal complaints are processed and adjudicated.  If an employee's verbal complaints to his or her immediate supervisor about a hostile work environment are ignored, those complaints will likely form the basis of a civil lawsuit against the City.  Better, in my view, would be to require all complaints to submitted in writing and go through a formal complaint process.  A prompt, impartial and meaningful internal process might satisfy the complainant and obviate costly lawsuits.

As another example, one of the proposed additions to § 46-64 states:
In the event, however, the complaint contains allegations of harassment or any other wrongdoing against a Commissioner, then the Board of Commissioners shall discuss the conclusions  contained in the investigator’s report with the City Attorney and render a final decision within 14 days after the receipt of the report.
I think that it would better to explicitly exclude the Commissioner who is under investigation from the discussions and decision-making process.

Thank you for your attention to this matter.

Very truly yours,

John Paff

Update: 07/24/15: Another, more recent amendment to the ordinance has been drafted.  It is somewhat better but still suffers from the same flaws noted above.