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September 2000

Stewart Hearing Inches Forward;
County Rests Case For Dismissal

By Jim Scanlon

Slowly, ever so slowly, the Personnel Commission's appeal hearing of Ed Steward's dismissal from his job as the County's Environmental Health Services chief reached its mid-point in mid-August. On Friday, August 18, the county's legal representative rested her case which consisting of a mass of charges---of using and tolerating language and behavior that was demeaning and threatening to women and minorities and favoring friends who were white males.

So far, nine county witnesses testified, five women and two male employees of Environmental Health, Alex Hinds, the head of the Community Development Agency and Linda Christman, an Assistant County Administrator, who conducted three administrative hearings which resulted in Stewart's dismissal. With few exceptions, each witness was questioned and cross examined on the same charges.

Here is an example of the charges: "12. You have observed, without comment or taking corrective action, years of offensive, discriminatory and harassing comments on the part of other white male employees within your Division, and especially male supervisory employees who report to you. In particular, your observance of and tolerance for, the conduct of Dave Mesagno, has created an intimidating and offensive work environment for females and minorities within your division."

In all, 37 paragraphs such as the above are included, falling under five different sections of county rules. It seems evident that it would be difficult to know where to begin to answer charges framed so broadly. Consider multiplying that "charge" by 37.

Throughout days of testimony, the recitation of the same familiar charges are followed by cross examinations, usually a little more dramatic, as inconsistencies are probed and witnesses squirm and sometimes chafe at being challenged.

Over and over, different witnesses answer questions relating to events that occurred over a period of fourteen years--- to conversations that happened four, six, eight, ten years previously, to how they feel now about what was said then and how that affects them now.

After over six full days of listening to testimony it became apparent that memory might be playing tricks on witnesses. Two women testified that they threw away a figurine candle that was lit and blown out at staff pot luck birthday celebrations. It was surprising to learn that the sexual innuendo surrounding this candle was actually initiated by a woman who learned later that other women were offended. In another instance, two witnesses gave completely different testimony on whether anyone told a male employee to take his feet of a meeting table. Two people remembered a statement differently: Mr. Stewart said, "I had a Jewish girlfriend" or, "I have had Jewish girlfriends?" These are minor points but illustrate the difficulty in remembering.

However, it required an effort of will to remember what was not being probed and questioned. What was never mentioned---that the turmoil within Environmental Health for almost a year before the dismissals was not over vulgar language, promotion, gender or racial discrimination---no one within Environmental Health ever complained about Stewart or his septic specialist Dave Mesagno, with one exception---towards the end when a "line was drawn in the sand" between Stewart, top county administration and Supervisor Steve Kinsey.

The struggle was over Stewart's resistance to loosening up standards for septic systems and over Mark Riesenfeld's (Stewart's supervisor at that time) failure to protect Environmental Health from intrusions by Kinsey into the septic system process. When Riesenfeld was promoted by the Board of Supervisors to County Administrator, his replacement, Alex Hinds, took over with a mandate from the Supervisors to make Environmental Health "less rigid," more "creative," and more "consumer friendly."

Just think for a moment what it might mean to a police officer or a building inspector or a health inspector to be told that he or she needed to be "more creative, less rigid and consumer friendly" in processing violations! Confusing perhaps? Where did the pressure come from to establish such a priority?

When Hinds went around Stewart and issued a permit that allowed the use of irrigation water which Stewart had blocked because it's illegally constructed source made is likely to be contaminated, Stewart got upset and complained. When Hinds transferred Mesagno without consulting Stewart, he really got upset, and spoke to the Gannett Independent Journal and the Pulitzer Prize winning Point Reyes Light. He filed grievances under a so called "whistleblower's resolution" allegedly designed to protect the whistleblower. He was clearly insubordinate, but why? For not following orders that violated rules designed to prevent human illness and death.

During this uproar Stewart and Mesagno were dismissed by Hinds without any warning, given five minutes to clear their desks and escorted out of the building by security guards pending dismissal proceedings. They were barred from entering Civic Center without prior permission. The whistleblower protection turned out to be a paper shield. County officials claimed the dismissals had nothing to do with the grievances. Kinsey said he had nothing to do with the dismissals.

If, according to the county's position, Stewart is responsible for Mesagno's alleged behavior, then Mark Riesenfeld, now the County's highest administrative officer, is responsible for Stewart's behavior during the years that he directly supervised, and was closely involved with Stewart and Environmental Health.

It is hard to imagine how anyone could believe that these two men with years of service, with good evaluations, were treated the way they were because county officials were unaware of vulgar language, cronyism, gender and ethnic discrimination over a period of fourteen years!

It is hard to judge what County employees make of all this. The dismissals are blatant violations of the county's "progressive discipline and evaluations." Most county employees are aware of the pressure that can be exerted by influential people who are dissatisfied. If these two men can be treated this way, who will be next? Who will protect the public interest from those who believe they are above the law? Do the people of Marin really want health inspectors who are lenient?

It is also hard to judge what the five Personnel Commissioners hearing Stewart's case are making of it. They sit there patiently, attentively, alertly without complaint or any display of irritation. Quite different from proceedings of the Board of Supervisors which take place in the same room where Supervisors read, write, talk and even doze.

After a slow start in June at the first hearing, the proceedings advanced smoothly under the direction of Chairman James Evans who should have been a judge. Most personnel appeals take about a day. This one will take an estimated ten days spread out over a minimum period of five months!

The hearings are somewhat like Superior Court in their formality and dignity, but there are differences. The commission allows hearsay and even double hearsay and the admission of testimony on matters not contained in the charges.

Personnel Commission hearings are normally closed to the public. This one was opened only at Stewart's request. Nevertheless the commission can, and sometimes does, go into closed session at will. Every so often, proceedings stop and commissioners huddle like a football team around their own attorney, Jeanine Nadel on loan from Mendocino County.

On two occasions the commission stopped proceedings and cleared the room when Stewart's legal representative began to question a witness about writing a declaration of love to Stewart, and again when he questioned Stewart about a sexual advance made towards him outside the workplace.

It is not clear why the commission reacted the way it did---the commissioners are certainly not prudish--- but there appears to be something else, perhaps another, separate case, not related to Stewart.

Despite the repeated questions concerning alleged offensive conduct, the picture of the atmosphere at the old Environmental Health Department that emerges from the testimony is that it was a nice place to work. Staff celebrated pot luck birthday parities in the office, socialized, played golf, softball and volleyball in county leagues, went to plays and even went camping together. Stewart obviously tried to promoted a family like togetherness and it is easy to imagine a strong bonds developing with people who shared a professional interest in a revolting side of modern life: sludge, sewage, stinking fluids, garbage, dumps, medical waste and poisonous substances.

However, the workplace is the workplace and being a small department with limited opportunities for advancement, jealousies and resentment naturally arise over who gets promoted. At least one intimate friendship blossomed into romance and then into hurt feelings when it ended. The only complaint filed against Stewart and Mesagno was filed by a woman who was formerly a close friend of both of them. This has to hurt both ways. It is hard to imagine how this department will ever function again.

The county hired the Berkeley firm of Barry Shapiro to investigate the complaint of the former friend. Essentially the "Shapiro Report" clears Stewart of the charges. (Mesagno charges and disposition are not known since he dropped his appeal after getting another job). At the first Administrative hearing in October 1999, called a "Skelly Hearing," Hinds was the presiding officer and quite naturally Stewart's attorney objected because of the pending grievances against him. The county was ready to have Hinds review his own decision to dismiss Stewart and Mesagno.

After the first hearing, county officials asked Barry Shapiro to extend his investigation into the area of racial discrimination. This was done and considered at a second Hearing in November. To an outsider it appears that the decision to get rid of both men had been made beforehand and investigations were continued so as to gather more evidence to support dismissals.

Christman said she convened yet a third meeting to see if there was some possibility of resolving the problem short of terminating Stewart. She said she felt she had to maintain a safe, secure environment for women and if she did not, the county might be libel and sued. She felt that Stewart's responses to the charges were not credible and constituted poor management practices.

She said she was willing to consider demotion and even a transfer if Stewart showed remorse and willingness to accept responsibility for what he had done. At the third hearing she felt he was not willing to do so and therefore she decided to terminate employment.

To an outsider listening to this testimony, it seems as if the county hired a firm to investigate a complaint and then paid no attention the findings. When the report did not sustain the charges in the complaint, county officials simply recycled Shapiro's interviews and produced the confusing intertwined mass of charges in the dismissal letter.

It is also disturbing that a person such as Christman who seems straightforward, practical and sensible, with years of experience in county government, was unable or unwilling to recognized that her boss Riesenfeld, as Stewart's supervisor for so many years, was implicated in the atmosphere of Environmental Health which she found so offensive.

It is also hard to understand how Christman could expect that a proud, idealistic employee of 28 years who was thrown out of his office as if he were a dangerous saboteur might find it difficult to come in to the third hearing, hat in hand, remorseful and consent to a demotion. Or, was he being felt out for the possibility of a settlement of some kind to be made out of public view?

Perhaps most difficult to understand is why the county went to such lengths to prevent Stewart from receiving unemployment insurance and when it was awarded by the state, appeal that decision to an administrative judge? Certainly an unusual procedure.

There will be three more hearing in August and one in October in which Stewart will have an opportunity to contest the county's charges. One interesting bit of information emerged after the county rested its case which may have additional bearing on his pariah status.

Stewart did not report for work during the public employees (MAPE) strike at Civic Center a few years ago. Most department heads crossed the picket lines, but Stewart, said he felt very uncomfortable doing this since almost all of his staff was on the picket line. He took vacation time and donated the money he would have earned to the workers strike fund. This sounds like a pretty idealistic public servant who might resist intense political pressure for reasons of conscience and fight, at great personal expense, for his reputation.

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