Riverside County Human Resources Department and Office of Riverside County Counsel

In 2018, the RIVCO Auditor/Controller issued a Legal Settlement Cost Report, comparing six California Counties (Santa Clara, Los Angeles, San Diego, Orange, San Bernardino and Riverside). The report showed a total of $3,400,000 was paid out as a result of pre-trial and trial settlements involving the various HR Departments of the named counties. Almost 85% of that amount ($2,900,000) was paid out by Riverside County. One fact has become consistently clear from the many witnesses in this Civil Grand Jury investigation: The advice of the HR office is deemed as only advisory by a significant number of managers, appointed and elected officials. Some managers routinely ignore ethics and sound advice in personnel matters and take action based on personal agendas with punitive intent. These actions are irresponsible and contrary to good personnel practice. HR must adhere to the California Labor Laws, California Fair Employment and Housing Act and the California Whistleblower Protection Act. (Division of Labor Standards Enforcement California Labor Code § 1102.5). Managers who act outside of HR policies and fail to follow the various state laws and labor codes, are exposing the County to litigation and monetary damages. HR is trained in these areas in order to keep the County out of unnecessary litigation. The monetary losses suffered by the county through litigation could have been even greater if individuals with a clear case had chosen to litigate. Their reasons for not litigating varied. Some were centered on the possible future harm litigation could cause to their careers and others by the limited option to retire rather than endure stressful, time-consuming and costly legal actions. One employee stated: “I didn’t want to destroy my career or put my family through what might have been three years or more of litigation. I just wanted out of that oppressive place and away from those unethical people.” In a disciplinary case, in response to the request of a Deputy County Counsel, a letter was provided by a HR Senior Analyst, detailing specific instructions as to how an attorney (with 25 plus years of County employment) could be terminated. This, despite the fact that the attorney had not received an evaluation in over five years and no investigation had commenced. Continued harassment forced this employee into making the decision to retire earlier than planned rather than continue to work in an adverse and hostile working environment. A senior HR analyst assigned to investigate this case was removed and replaced by another HR analyst who determined there was cause to terminate the attorney. Testimony revealed that the replacement analyst was assigned the case to ensure the employee was terminated. The analyst originally assigned to the case, was trying to conduct an honest and unbiased investigation but that was not what the department manager wanted. The first analyst stated candidly, “it was very difficult and I was not bringing forth the desired result of termination.” Afterwards, this analyst felt that he was non-promotable, deemed untrustworthy and left the employment of Riverside County. Under California Labor Code, this is defined as “constructive discharge”. In a 1994 California Superior Court case ruling, Turner vs. Aneuser-Bush Inc. (No. CSC 198551), constructive discharge occurs when the employer’s conduct effectively forces the employee to resign. This practice is ongoing, pervasive and is continuously repeated against County employees. Constructive discharge was used to force out a significant number of individuals over the age of 40. The RCCGJ makes no judgment as to whether these individuals should have left county employment. Based on over 80 interviews, judgment is based on the manner and method in which they were forced to leave. County taxpayers deserve, and expect a process which is transparent, not capricious, and which does not expose them to huge monetary losses as reflected in the Auditor Controller’s report. 2 – A. Abusive Management Behavior Our investigation/interviews revealed that certain county managers have set personal ego, arrogance, power and personal control above their duty to serve the people. The highest honor is to serve the public, and along with that honor, is the responsibility to maintain ethical standards in 4 employment actions. These county managers, the CEO and to some extent the prior BOS, have failed in their leadership to provide a positive, supportive environment. The expertise of a company’s employees together with their work ethic and ability to function as a team will largely determine the success of that company, whether private or government. The average employee spends most of his/her day at work so having a welcoming and nurturing workplace environment will make a difference. A workplace fueled by long hours, harsh criticism and manipulative tactics will not help retain employees. It will also make it more difficult to bring in new employees as negative feedback spreads quickly. The prevailing attitude has already made it apparent that RIVCO is not a good place for a person with career aspirations. Prolonged mistrust due to harsh personnel practices as well as unscrupulous tactics by some managers has created a climate of fear, intimidation and anxiety among county employees. Employees know it is “go along to get along”, even if it is immoral, illegal, unethical or goes against policies and laws. One employee was told “you have to learn how to do things the county way.” Upon inquiry of how that differed from good legal ethics, no answer was forthcoming. 2 – B. Punitive Disciplinary Action Employees have been and are currently denied and deprived of the ability to examine materials and other documents kept in their personnel file, which is essential to the defense of an allegation against them. This is in direct violation of California Labor Code §1198.5, which grants an employee the right to review their personnel file with few exceptions. Managers and directors routinely keep memorandums purporting to document employee actions in separate files, those files are unavailable to the employee for review. Ultimately they are used in investigations to generate a case against the employee. These files kept on employees in individual departments, are commonly referred to as supervisory files. They are not personnel files and are not subject to review. These secretive files are usually kept for convenience, easy access and to jog memories or keep track of issues. They are not legal, official employee files. However, documents or evidence used against an employee for disciplinary action MUST be contained in the employee’s personnel file which is a legal file. Personnel files are the only Official File for an employee. So any documents placed in a supervisory file, which could be actionable against an employee, MUST be placed in the Official Personnel File. Otherwise such documents can’t be used against the employee. As such, the employee will have access to them under California Labor Code 5 §1198.5. Any such documents placed in the Official Personnel File must be reviewed by HR staff for appropriateness. Testimony and extensive research revealed numerous cases where the employee has been instructed to gather evidence on their behalf to disprove any allegations against them. The employee was then directed not to discuss the matter with anyone except their union representative or their attorney. This severely curtailed their ability to obtain mitigating or exonerating evidence for their defense. Individual’s within the County who may have provided needed material evidence to help the employee were prohibited from assisting them. As a result, this restriction placed on the “accused” employee subjected him/her to a great disadvantage in presenting their case, condemning them to a foregone conclusion of termination. Investigators hired by the County regarding personnel matters have no definitive guidelines for their investigations. These investigations are wide- ranging and all-encompassing. Often they contain speculation and intrusion into the private lives of employees and other County representatives, even to the extent of questioning their neighbors. Investigators are not impartial and are all too willing to obtain damaging evidence and material against an employee. A failure of not being impartial or not trying to obtain mitigating or favorable evidence in the defense of the employee, results in a biased and skewed investigation. The alleged offending employee has no such advantage in gathering helpful and exonerating material evidence. Investigators must be neutral and gather both mitigating and aggravating evidence to be fairly presented to the reviewer. 2 – C. Retaliatory Behavior Employees who have displeased managers in the Office of County Counsel, as well as other departments, have found themselves the recipient of a number of “Special Treatments”. Instead of being assisted, if performance issues are present, they are subjected to various stressors and “Special Treatment”. Retaliatory transfers are prevalent. These occur when individuals are transferred to distant work place locations for punitive reasons. Witnesses and those who have experience with this “Special Treatment” refer to these punitive transfers as Freeway Therapy and it is a known means of punishment for those who have displeased managers and directors in power. In other instances of “Special Treatment”, attorneys who have been assigned to a specific department for many years are punitively reassigned to another unrelated department in which they have no expertise. This is not only a waste of talent and expertise as the employee now has to gain knowledge on-the-job to come up to speed, but it affects the work flow and productivity of that area. Such “transfers” waste time, energy, 6 training and expertise. Sometime these transfers set the employee up for failure in order to terminate them or have them resign. In other instances, employees have been assigned additional workloads to their existing responsibilities as a punishment for perceived disloyalty. This was verified through sworn testimony and documentation. 2 – D. Misuse of Power and Intimidation As many HR functions are delegated to department managers, our investigation revealed clear duplicitous overreach of human resource responsibilities by some managers. A high level manager has misused human resource functions to apply retaliatory and discriminatory action against employees, most of whom were over the age of 40. This behavior exposes the County to millions of dollars in potential damages if the individuals had brought suit against the County. In October of 2015, an attorney was hired by the RCC. He received two evaluations from his date of hire through December of 2016, indicating either “meets expectations” or “good, above average”. Both evaluations contained handwritten notes from RCC, indicating his pleasure with the work performance of this attorney. In February of 2017, the attorney took over a project previously handled by a Deputy County Counsel involving a lease modification with the RIVCO EDA, an outdoor advertising firm and a developer. During the course of handling this project, the attorney discovered two separate Abstracts of Judgment against the developer which had not been discovered by the Deputy County Counsel. These judgments, had they remained undiscovered, could have resulted in a one point five million dollar ($1,500,000.00) lien against Riverside County. When these judgments were disclosed to RIVCO EDA they removed themselves from the transaction. When this information was relayed to the Deputy County Counsel, she told the attorney “you had no business informing EDA of this matter” and “you do not understand your role as a Government Attorney”. The Attorney, having discovered a potentially huge financial liability for the county, was reprimanded rather than commended for his due diligence in catching this costly oversight. During the course of an interview with a Deputy County Counsel, in relation to this case she stated that, in the preparation of any real estate transaction, there is little or nothing done in the way of due diligence regarding the principals in the transaction. The only concern was that the parties were, in fact authorized and empowered to act and execute documents on behalf of their respective entities. As a point of information, this RCCGJ did a cursory investigation of one of the principals in question and in less than one hour, discovered multiple previous lawsuits/litigation. On April 17, 2017, with no previously noted derogatory issues or details, the attorney, in the case mentioned above was told, in a personal meeting with RCC, of concerns regarding his transition from private practice to government work. RCC would not provide any specifics but stated that “my managers have expressed concern”. On the following business day, the attorney was terminated as an “at will” employee. When the attorney applied for unemployment benefits with the California Department of Economic Development (EDD), he was informed that his claim was being challenged by RIVCO as he had been discharged for cause for refusing to perform his job duties as assigned/instructed by his supervisor. According to HR, an employee who is terminated as an “at will” employee has no right of appeal. An employee who is terminated for “cause” does have that right. In this case, HR, at the direction of the Office of RCC, reported to EDD that he had been terminated for cause, a direct contradiction of what he had been informed by RCC. Correspondence from RIVCO to EDD indicated that he had attended a meeting without permission and consequently his time could not be billed to the client (EDA). As a point of fact, he had been requested to attend the meeting by an EDA manager, making his time a billable event. After almost a month of delay, EDD was informed that HR had withdrawn their appeal of denial of his EDD rights. This is a brutal example of how a subordinate was unjustly terminated for bringing to light negligence on the part of a supervisor. This oversight on the part of a supervisor had the potential of substantial monetary loss to the County. Timely and Constructive Evaluations

County policy and procedures require annual evaluations on or near the employee’s anniversary date of employment RCCGJ found this policy has not been followed. In some departments, employees have gone over five years without an evaluation. A recent report from the Auditor Controller’s office identified similar findings. Evaluations should be constructive and helpful but not punitive. In one instance, an employee was given two evaluations in one meeting – one being back-dated. The first showed areas of improvement needed. The second one was delivered minutes after the first and the manager stated, “Since you have not improved from your last evaluation you have also fallen below par in these additional areas.” In that same meeting, the employee was then given a Personal Improvement Plan (PIP). Then additional work with unrealistic goals of achievement was added to the individual’s workload thereby setting the employee up for failure. This evaluation process has been used in this same department to demote and 8 force constructive discharge in multiple cases against employees over the age of 40. Exit Interviews

An important goal for any organization is to retain valued employees. Research shows that high turnover of employees, especially those with specialized skills, has a real dollar cost. The Civil Grand Jury’s findings indicate the loss of these employees in Riverside County is high and the methods used to induce or coerce them to leave, places the county at significant financial risk. The exit interview is an excellent tool to discover failures in hiring, evaluation and management styles and practices as well as other workplace dissatistisfiers, such as inadequate training, support or lack of opportunity to learn, grow and advance. Few exit interviews are performed by RICVO. The current practice of initiating an exit interview is to notify the employee via email request. At present there is little to no follow up to this email. This is a passive and ineffective method to obtain feedback. As a result of this current practice, the return rate is low and has little or no value in obtaining feedback to improve workplace practices. Riverside County spends considerable money in the process of recruiting, hiring and training employees. This expenditure of funds speaks to the question of why good employees are leaving and what can the county do to retain them. Personnel Files

In many departments personnel files are currently kept in the same department as the employee. In one location the RCCGJ found that personnel records were in a securable office, however, the office was open and the files were in an unattended and unlocked cabinet. This arrangement is not unusual nor is it conducive to employee privacy or security of records. Unprotected personnel information, especially personal or disciplinary issues, falling into the wrong hands opens the county to major litigation. Abuse of the Whistle Blower Law (intimidation)

A chilling effect was created when other employees became aware of the onslaught of retaliation and intimidation of employees who reported those abusive actions or departures from ethical behavior. In one case an employee was directed to cease communication with all employees of the County after it was discovered by his manager that the employee had contacted a BOS member about his problems which were a matter of public concern. This was considered proper chain of 9 command. When his direct manager found out about the emails, the employee was given a directive, forbidding him to contact any other County employee. This directive was contrary to County Policy as it was given prior to an investigation being conducted. The employee subsequently received a communication from a member of the BOS. The employee emailed back that he, the employee, had been directed not to contact him and said this would be his last communication. Since the reply message was sent after the time of the directive, the message was used as one of the grounds to terminate him. This is a noxious abuse of power. An email in the Grand Jury’s possession, outlined the process that was to be followed in firing the employee even before the evaluation process had begun. The document outlined what steps were to be taken all the way from the initial meeting through termination thus showing the employee was fired following a pre-planned conspiracy to deprive him of the property interest in his job. This is yet another example of abuse of power. Past and Present Practices of RCC

In pursuit of this review of HR, the RCCGJ found past and present practices done by the office of RCC impedes the performance of its legal duties. This report would be incomplete without reference to this important office of RIVCO. The office of RCC has, throughout this investigation, come to the forefront as being problematic in its relationship in regards to HR matters. Its attempts to control information required to assure that our citizens and employees are protected from fraud, litigation, intimidation and abuse makes the duty and responsibility of HR to carry out its mandates more difficult. The concept of a Civil Grand Jury has been in existence for almost 1000 years, having begun in England during the reign of William the Conqueror. The Riverside County Civil Grand Jury was established over 100 years ago as an arm of the Superior Court and has judicial investigatory and inquisitional responsibilities and powers as well as being the “watch dog” for its citizenry. As part of its civil functions, the Civil Grand Jury shall investigate and report on the operations, accounts and records of the officers, departments or functions of Riverside County. Its functions are conducted as a separate and independent body, acting apart from the jurisdiction of the court. Typically, a Civil Grand Jury may ask the advice of the Court, the District Attorney or the County Counsel. In Riverside County, the County Counsel as of 2014, made the unilateral decision not to represent the Civil Grand Jury. He decided that his responsibility was to represent Riverside County, which includes the departments and personnel over which the Civil Grand Jury has investigatory purview. The California Penal Code is permissive 10 on this point, but in other counties, it is standard practice for the County Counsel to assist the Civil Grand Jury. According to numerous witnesses, interviewed under oath, the RCC has spoken derisively and disparagingly against the RCCGJ’s work in the performance of its legal duties in creating transparency in County government and its agencies and exposing corruption and abuse of power. A previous RCC sent a letter of reprimand dated May 20, 2013, to the current RCC, then serving as the Riverside City Attorney, pertaining to his interference with subpoenas and leaking Civil Grand Jury information. A charge RCC denied in his response. This information is in the 2014-2015 Civil Grand Jury Report. On December 4, 2014, an email was sent from the current RCC to all department heads instructing them that all contacts with the RCCGJ must go through the office of RCC prior to their responding to an inquiry. Testimony has been given which illustrates that many managers still believe that this is a standing rule. A recent inquiry by a RCCGJ member to Animal Control regarding the number of dogs picked up in a given year was responded to by the receptionist with the statement, “We have to speak to County Counsel before we answer that.” Measures like this have the impact of hampering the ability of the Civil Grand Jury to legitimately investigate and inquire about even minute issues. The RCCGJ has the responsibility to expose poor management and corruption in County and City Government. The Office of County Counsel has become an impediment of the duties of the RCCGJ and has become the protector of the very people who are the initiators of unethical, abusive and illegal behaviors. Subordinates of the County Counsel who have been called to testify related to complaints of abusive behavior in the Office of County Counsel have, as is their right, left the jury room to consult with their attorney. That attorney is the County Counsel. They then avoided answering questions by asserting attorney client privilege. Thus the decisions made by County Counsel, which are under investigation by the RCCGJ are being defended and deflected by the very person whose decisions and actions are in question. This is an egregious conflict of interest as it allows County Counsel to proceed with impunity and then escape inquiry by claiming attorney client privilege by those who have carried out his directives. These same individuals are dependent on the County Counsel to maintain their employment. Attorney client privilege exists exclusively with the client. The Board of Supervisors is the client. Therefore, County Counsel cannot represent all 21,000 plus employees as their personal attorney. This has been supported by RCCGJ report 2014-2015. There is a long history of interference with the legal duties and purview of the RCCGJ by the office of RCC. This is evidenced by past Civil Grand Jury reports. The 2014-2015 Civil Grand Jury Report is entered here as evidence of long standing abuses towards the RCCGJ still practiced by the office of RCC, despite them having been made public. The fact that the previous BOS did not respond or attempt to remedy these issues could be construed as their approval of County Counsel’s actions. Departmental responses to Grand Jury reports are routinely reviewed by RCC which is appropriate. However, it raises the question, due to the extensive number of disagreements with RCCGJ reports, how much influence is exerted by RCC over departments in their responses to those RCCGJ reports?