News and Opinion from Sisters, Oregon
News and Opinion from Sisters, Oregon
The Sisters City Council would prefer that the investigator's report into the conduct of now-former City Manager Andrew Gorayeb not be made public. The City contends that it is a private personnel record.
Councilor David Asson has said that the report is comprised of "a short summary version that treated the matter adequately," and a "detailed version that contained contradictory and inconclusive assessments."
He has also noted that the report contains some negative comments about employees that would hinder the City's effort to move forward after Gorayeb's resignation.
Councilor Andrea Blum told The Nugget that the concern over release of the report has nothing to do with protecting Gorayeb, but rather involves the confidence of City employees.
"We knew that people were going to have to be comfortable talking to the investigator," Blum said.
She noted that, though the council was not made aware of it until after the investigation, the investigator assured employees "that everything they said would be kept as confidential as possible. That was crucial to our investigation."
Blum said that employees may have had different interpretations of Gorayeb's actions, that "this person would interpret this (statement) as an attack and another would interpret it as a joke."
Thus, one person's interpretation of an episode might not be corroborated by a co-worker.
"It's the conversation that they had a different perspective of the allegations," Blum said. "That is all going to contribute to a difficult working environment."
She said that it is important that employees have the sense that their co-workers "have their back," and "a report like this can take that assurance away."
It is far from clear that the City will be able to prevent the release of the report. Several public records requests have been made, including one filed by The Nugget on April 1, when the investigation was complete. The City has denied requests based on the argument that personnel records are exempt from public records law.
Yet the Oregon Attorney General's handbook on public records states: "The exemption does not apply when an employee of a public body resigns during an employer investigation or in lieu of disciplinary action. The policy underlying this narrowly construed exemption is to 'protect the public employee from ridicule for having been disciplined but does not shield the government from public efforts to obtain knowledge about its processes.'"
Gorayeb's letter of resignation states that "given the unreasonable disciplinary action you have taken... it is clear to me that some of our philosophical differences are simply too much to overcome... I am hereby resigning my employment, effective immediately."
Councilor David Asson told The Nugget, "That paragraph (from the pamphlet) makes it seem very definite that it will be releasable. We should have been told about that paragraph whether or not it's true, whether there were extenuating circumstances (that would make it not applicable)."
Blum said that the council was led to believe that the only avenue to keeping the report private "is if it was bound to a disciplinary action."
City Recorder Kathy Nelson told The Nugget on Monday that she had spoken with City Attorney Bryant on the subject and was told that, "You (The Nugget) are correct that ORS 192.501(12) does not apply when an employee resigns before the discipline is completed. The Attorney General's commentary on this statute is clear that only completed (emphasis added) disciplinary actions when a sanction is imposed fall within the scope of this exemption. The Council did complete the disciplinary action and a sanction was imposed. As a result, the discipline and the reports that support that discipline are exempt from disclosure..."
The Nugget appealed the City's denial of a public records request to the Deschutes County District Attorney. The DA could order the release of the records, which also could be appealed.
In the absence of the release of the report, there are several lingering questions that have been answered only in generalities. The City has said that the alleged conduct that led to several employee complaints was not financial, physical or sexual in nature - but the City has never indicated what the alleged conduct was, or why it called for disciplinary action.
Gorayeb asserted in his resignation letter that the council has acknowledged that "none of the allegations involving bullying or harassment were sustained during your investigation...," and that the council imposed discipline "due to your belief that I have acted 'at times' contrary to the City's 'Encouraged Conduct' policy."
There has been no indication as to what exact actions contrary to that encouraged conduct may have occurred.
"The findings that were corroborated did not indicate that our policies had been violated, but there were violations of the encouraged conduct," Blum told The Nugget.
The encouraged conduct policy essentially urges employees to be courteous.
The City has not specified why the City Council agreed to a payout of approximately $114,000 when Gorayeb chose to resign rather than accepting discipline.
Mayor Chris Frye said, "We believed it was in the best interests of the City. Looking at all possibilities including possible litigation and associated costs, as well as staff time, we felt this package was the best way to go."
It is not clear whether the contents of the report would shed light on that decision.
Asson said the confidentiality of the report "was a major factor in all our deliberations. All five of us (councilors) were very concerned about this."
Asson said that he would have preferred that no detailed report ever have been written, that the executive summary was adequate for the needs of the council.
However, he said, "it isn't life-threatening and it isn't going to cause anyone to leave their employment by itself... I don't think harming the City is a problem. The report is an embarrassment problem and we can get past that problem in two weeks."
He said that he would like to have an interim city manager in place quickly to act as a "referee" if any disagreements or disputes arise between employees over Gorayeb's departure.
Blum said that she is concerned about the precedent set by a release of a report that employees were encouraged to believe would likely be kept confidential.
"You are never going to have employees come forward if their allegations are thrust out for everyone to see," she said.
Jim Cornelius is editor in chief of The Nugget and author of “Warriors of the Wildlands: True Tales of the Frontier Partisans.” A history buff, he explores frontier history across three centuries and several continents on his podcast, The Frontier Partisans. For more information visit www.frontierpartisans.com.
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