Jul 25, 2008

Report targets Atherton council members

By Banks Albach / Daily News Staff Writer

The San Mateo County civil grand jury has Atherton in its sights again, this time in a report that claims that some council members violated city laws during the investigation and firing of finance director John Johns.

The grand jury's four-page report states that during the suspension and administrative investigation of Johns, "it is evident that at least one council member undertook independent investigative activities," a municipal code violation.

The document, filed on July 10, follows a blistering April grand jury report on government effectiveness in Atherton. The grand jury has no enforcement powers and simply makes recommendations.

Although the report does not list any specific council members, both Charles Marsala and Kathy McKeithen took active roles in and out of council chambers during the Johns investigation.

The former finance director was fired last August for allegedly fostering a hostile work environment. Those allegations were largely dismissed in the subsequent investigation by outside attorney Mary Topliff, but town administrators stood by their decision. City Attorney Marc Hynes has said on several occasions that the town was justified in firing Johns for other reasons as well.

During the investigation, Marsala compiled an extensive archive of e-mails and phone records from the former employee. He routinely discussed his findings with the press and presented them to fellow council members during public meetings. Marsala also supported interim City Manager Wende Protzman's decision to fire Johns.

The grand jury report quotes Atherton's municipal code, specifically that hiring, firing and investigating employees are exclusively the duties of the city manager, and that council members must act within that chain of command.

"I always went through the city manager," Marsala said Thursday.

McKeithen, on other hand, was at odds with Protzman during the suspension, investigation and firing of Johns. In a San Mateo County Superior Court declaration, McKeithen stated that after Johns' suspension, she spoke to Paula Pierce, one of Johns' employees who allegedly made the hostile workplace claims. McKeithen stated that Pierce told her that Johns' was the "best boss" that "she had ever had." Following that conversation, she stated that she approached Protzman and was prevented from looking further into any facts related to Johns. McKeithen went on to publish some of this information in a local newspaper, including veiled criticism of Protzman and town staff.

McKeithen could not be reached for comment Thursday.

In a separate declaration, Protzman claimed that after Johns had been suspended, McKeithen asked her if they could "make this whole thing go away and not proceed with the complaint." Protzman also stated that after McKeithen spoke to Pierce, she brought Johns' former secretary into Protzman's office and asked her to repeat certain statements from their conversation.

The grand jury's report concluded that "allowing a (council member) to initiate an investigation and to publicize those actions undermines the public's perception of the integrity or, perhaps, competence of the (City Manager) and is contrary to the intent of the Atherton municipal code."

The grand jury recommended that the council clarify the code, possibly with a new ordinance or amendment. Its members interviewed 17 elected and appointed officials and employees from Atherton.

City Attorney Hynes brushed off the report and said the town doesn't need a new law and that he plans to refresh the city council on the sections of the code in question.

"I am not recommending or thinking about any amendments," he said. "What we have in place is certainly adequate."



E-mail Banks Albach at balbach@dailynewsgroup.com.