This article was updated following the May 1 City Council meeting.
A recent deposition of Tulare’s deputy city clerk, and its supporting documents, reveal city employees’ complaints about the burdens of the Public Records Act, and complaints regarding the city attorney’s office’s efficiency and billing practices.
Roxanne Yoder, the deputy city clerk, was deposed as part of two lawsuits filed by former resident Ben Brubaker. Brubaker’s attorney, Michael Lampe, conducted the deposition.
Heather Phillips, Tulare’s City Attorney under a contract with Goyette & Associates, states that there was a large backlog of work when the firm was retained, some of which is still being worked through. She also claims that Lampe’s legal strategy is “to create as much disruption to the City as possible.”
The first suit filed on January 31 asked the court for enforcement “For a declaration that the City has not complied with the January 16, 2018, Public Records Act request, and that the requested documents should be produced forthwith.”
The second suit, filed on March 2, was based upon a lack of transparency, citing “privilege,” among other things. As of April 26, the two cases were officially consolidated.
Most qualified person(s)
Lampe filed a Notice of Deposition and for Production of Documents with the Superior Court on March 6, with a date to take place on March 20. The afternoon of March 19, Lampe received an email notice from Gary Goyette, head of the Goyette & Associates Civil Litigation Department, the firm in which the city’s attorneys, Phillips and Sarah Tobias, are affiliated. His response, in part read –
“In response to your email to Ms. Phillips 45 minutes ago regarding your deposition of the City’s Person or Person’s Most Qualified set for tomorrow, no, this deposition will not be occurring. While it is true that my response here on behalf of Ms. Phillips is the day before the planned deposition, your email below, quite honestly, is surprising, since with multiple, related factors, our side presumed that you had no expectation this deposition would occur tomorrow.”
Lampe had sent an email reminding Phillips of the deposition, as he had not heard any response, he said. Through various declarations and much banter, the deposition was postponed to April 24.
According to the deposition, the city was to “designate and produce at the deposition one or more of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to the matters set forth below.” Nineteen “matters” were listed.
The person designated by Phillips was Yoder, who learned of her designation only a week prior to the deposition. She was able to review the notice, including the 19 items she was designated as being the person most qualified (PMQ) to respond to, the morning of and just prior to the deposition, according to the deposition record.
Yoder said in her deposition that she did not feel she was the “most qualified” to speak on several of the points. In fact, Goyette had previously stated to Lampe that Yoder would be the PMQ and with any of the questions she could not address, either Phillips or Tobias would respond to. That was on April 19. However, the day of the deposition, Phillips changed the tune.
Lampe asked Phillips directly, “you’ve filed a declaration under penalty of perjury with the superior court saying that one of the reasons that you had to delay this is because you had to figure out whether you or Sarah were going to testify in this matter.”
“Uh-huh,” Phillips responded.
“Now you’re telling me that neither one of you are going to testify, and you’re going to bring somebody in who doesn’t know anything about this, and you don’t see an inconsistency there.” Lampe said.
“No, there’s no inconsistency there. We had to figure out whether or not we were subject to being deposed. The law says we’re not subject to being deposed in the matters you’ve noticed,” Phillips responded. She cited Citation is 198 Cal. App. 3d 1487, Spectra-Physics v. Superior Court.
One withheld public record document
The two-hour long deposition revealed Yoder’s testimony regarding the city’s refusal to release copies of the investigator’s contract with regard to former Police Chief Wes Hensley, Capt. Fred Ynclan and Lt. Jerod Boatman, who were all on paid administrative leave at the time. Lampe had requested the document(s) through a Public Record Act request (PRA) on January 16. He received an answer on January 26 – the city “refused to produce copies claiming an exemption.”
The Valley Voice also requested a copy of the investigator contract on January 27 and received a similar, lengthy response –
“The City takes the position that the above referenced contract is exempt from disclosure pursuant to Government Code Section 6255. This section allows a public agency to withhold records by demonstrating that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Gov. Code. § 6255(a).)
Making information and records public about an on-going, confidential personnel investigation would interfere with any agency’s ability to conduct an effective investigation. This risk is greatly amplified in the situation at hand by the involvement of the media in this matter, and by the possibility of any prematurely released information impacting potential witnesses and impacting the investigator’s ability to conduct the investigation. The public does possess an interest in transparency and in evaluating the City’s performance of its duties, such as conducting a personnel investigation. However, learning information such as the name of the investigator, or any other information about the investigator, before the investigation is completed does not serve the public interest in determining whether the City has properly performed its duties, as its duties have not yet been completed.
Clearly, the greater public interest at work here is that of ensuring a fair, impartial, and effective investigation of the conduct of a City employee, without the interference and influence of the media or of anyone else not authorized to be involved in the investigation. If information about the investigator is released by way of the contract, it is likely that the investigator’s ability to conduct an effective investigation will be greatly hindered and his privacy invaded without justification or purpose.
Further, we acknowledge that the public may have a right to this contract at a certain point, following the investigation, and the City will certainly provide it in the event that its disclosure is appropriate. That being said, the public interest in the City’s performance of its duties with regard to this investigation will be served at the appropriate juncture, by making information pertinent to the investigation public. At this time, however, disclosure of the contract with the investigator is premature and would clearly work against the public interest of ensuring an effective personnel investigation. As a result, the City is withholding the contract.”
Apparently, the morning of Tuesday, April 24, shortly before the deposition, was the right time as Lampe received a copy of the contract and so did the Voice.
“The City has always said that once it could no longer impact the investigation, we would release the contract,” Phillips said in a subsequent email interview with the Voice. “Our Human Resources Director took possession of needed reports on Tuesday morning and we released the contract within minutes. We have told Mr. Lampe on numerous occasions that we would release the contract as soon as any necessary investigative reports had been received by the City. We hoped to receive the report a couple of weeks ago, but did not unfortunately and that is outside of our control. Upon receipt we released the contract.”
While Yoder explained in the deposition, she could not provide legal authority, as she is not an attorney, she did not see any reasoning as to why the contract had been withheld from the public in the first place, nor could she see why it would have damaged the investigation.
“Can you tell me if there is anything contained within Exhibit 2 [the investigator’s contract] that in your opinion would interfere with the City’s ability to conduct an effective investigation of Chief Hensley?” Lampe asked Yoder.
And, while Phillips objected to the question, Yoder replied, “I don’t know how it would.”
Last year’s hiring of a city attorney
Questions regarding Exhibit 4 of the deposition surrounded the fact that a Request for Proposals (RFP) had been prepared by Yoder under the direction of the former city manager, Joe Carlini, in April of 2017. This followed a closed session of the April 18, 2017 city council meeting in which it was reported, “Mayor [Carlton] Jones advised staff was directed to prepare a Request for Proposals for City Attorney Services.”
“We were directed on April 18th by City Council to prepare it. I worked on it the following day. I provided it to him to review. He made some changes. I made those changes and provided it back to him, asked him when he wanted to do — to issue it and when proposals would be due. And he told me to hold off,” Yoder testified.
“I asked him when — I was trying to calculate the dates for the date issued and proposals due on the face of the RFP. Those are left as month, day, year. I was trying to get a time line on when he wanted these issued, and he just said, ‘Hold off.’”
“Did he give you any reason for that?” Lampe asked.
She replied, “He did not.”
“Did he tell you that he had talked to anybody?” Lampe asked.
She replied, “He did not.”
“Did you find that to be strange given the fact that the council had issued a direction to prepare this thing?” he asked.
“I did,” she responded.
The RFP never went out. No proposals were ever submitted. Discussion of the city attorney position had been conducted during a special closed session of council on March 31, 2017.
In the minutes from the April 4, 2017 meeting, Phillips was listed as “Staff Present.” Subsequently, she was also listed as staff in the April 18 minutes, where the topic of the city attorney had been listed during closed session and it was reported, “Mayor Jones advised staff was directed to prepare a Request for Proposals for City Attorney Services.”
A one-year contract was signed June 6 with Goyette & Associates, more specifically Phillips, to serve as Tulare’s city attorney. However, she was listed as “staff” in minutes prior to that, and the city had hired and paid for work performed previous to the official contract.
This was addressed in the deposition including whether Yoder had knowledge of “a preexisting relationship between Mr. Jones and Miss Phillips that predated April 4 of 2017?” Lampe asked. Yoder’s response, “I don’t — firsthand, I don’t know if there was. I just — rumor and innuendo.”
Goyette & Associates is located in Gold River, in the Sacramento area. It has a Fresno office, in which Phillips and Tobias work.
A lack of billing transparency
Another related part of the deposition addressed redactions in copies of billings from the law firm to the city, sent to Lampe per a PRA. Billings, which had previously been the lump payment of $30,000 per month as agreed upon by the attorney’s contract, had been updated through the city manager’s urging of itemized invoicing. While the attorney’s initials, date and time worked were available – however, all indications as to the type of work and which department were redacted.
This lead to further discussion regarding the length of time it has been taking the city attorneys to get their work done. Lampe asked, “Have you heard discussions amongst City staff regarding Miss Phillips not getting work done in a timely fashion?”
Phillips objected, but Yoder answered yes, listing 12 city staff members including several department heads and herself.
“When we were retained there was an incredible backlog that needed to be sifted through, prioritized and completed” Phillips said in a response to the Voice. “New procedures, new contracts, and the like were all necessary. We are still discovering things that need revision, many from years ago. Understandably, it took time to get caught up. Additionally, it is clear that Mr. Lampe’s strategy is to create as much disruption to the City as possible, through the use of extraordinary amounts of both City Attorney and staff time.
“As in any professional services occupation, the desk will always have a revolving stack of projects to be worked on,” Phillips continued. “We meet with all Department Heads on a regular basis to ensure projects are properly prioritized. I am unaware that any such complaints are current, but it is a reality that every person and every client of course considers their project or case to be the most important one in need of priority.”
Some staff had also commented, according to Yoder’s testimony, about the intense amount of PRAs coming in from Lampe, and others, and that it was “time consuming.”
One city staff member referenced said, “This is a bunch of s—t,” and “”I wonder what he thinks he’s going to find.” The “he” being Lampe.
A possible Councilman Nunley and city building official Karlie connection?
A line of questioning on Lampe’s PRAs developed with regard to Councilman Greg Nunley, as well as John Karlie, the city’s chief building official.
“There have been a total of six Public Records Act requests that were served early this month all relating to Councilman Nunley, for the record, correct?” Lampe asked.
Yoder responded, “Correct.”
Lampe told the Voice he has receive one of the documents he requested, but is still waiting for the others.
The Voice asked Lampe where he was going with this line of questioning, and he replied, “No comment at this time.”
Lampe had previously also scheduled a deposition of the investigator, retired Sacramento County Sheriff John McGuiness. However, with the release of the investigator’s contract, he cancelled it as he saw it “no longer necessary,” he said.
Under General Business for the May 1 City Council meeting, there was “Discussion and direction to staff to draft a Notice of Intent exercising the City’s option to extend, for an additional one year term, the Legal Services Agreement with the law firm of Goyette & Associates, Inc. and authorize the Interim City Manager to execute same on behalf of the City Council.”
Prior to the item, and during the public comment period, Lampe encouraged the council to put out a Request for Proposals on legal services.
During Lampe’s remarks, Jones admonished him for not keeping his remarks “brief and positive.”
Lampe responded, he wasn’t “going to take orders” regarding his speech during the public comment period.
He repeated the list of each city official Yoder had attested to, who had complained regarding Phillips’ turnaround time.
Jones wasn’t convinced. He said Lampe was only out to harm the city.
“A Visalian trying to hurt our city is not part of our team,” he said. “Lampe said he deposed one person,” but “listed off the opinion” of multiple people. Jones said he wanted to hear employees’ opinions directly.
Lampe told the Voice there was no reason to doubt Yoder’s testimony.
“I repeated the testimony of one person,” he said.
Phillips had even emailed him after Yoder’s deposition, he said, adding a name to the list of dissatisfied city employees.
When the item came up in the agenda, Councilman Jose Sigala motioned the City Manager to write the proposed extension. In his motion, Sigala added there to be explicit office hours in Tulare for the city attorneys, and for written regular reports as to updates of legal work performed be provided to the city manager and council — reports are required in the current contract, but were provided via regular meetings with the prior city manager, rather than in written form.
What he did not add to his motion was Jones’ attempt to omit the city attorneys having to itemize their monthly billing, which had been addressed in Yoder’s testimony. The former city manager had firmly expressed the need for itemization as required as to which department within the city the work would be attributed to. The city finance director concurs with that necessity.
“I don’t like the part where we’re doing all this itemization,” Jones said.
He instead suggested department heads self-report their legal usage to the city’s finance director, Darlene Thompson.
“I don’t want to add anything to the contract. I do want to take out the itemization,” he later said, before voting in favor of Sigala’s motion — which did not contain a stance on itemized billing.
The council voted 4-1, with Councilman David Macedo against.
Following the meeting, Macedo expressed his concerns to the Voice.
“I have always felt the city should have an attorney that is well versed in municipal law, and I don’t feel at this point, that’s what we have,” he said. “And, I’ll leave it at that.”
In an interview, Lampe stated that it would be “insane” to not require Goyette to produce itemized invoices. “If the mayor is suggesting providers of the city’s legal services should not provide detailed billings — that’s insane,” he said. “That’s a very unsophisticated approach to the consumption of legal services.”
Lampe added that he wasn’t out to harm the city. “I’m not trying to hurt the city,” he said. “I’m trying to end the corruption.”
Tony Maldonado contributed to this article.