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HomeMy WebLinkAbout2021-04-13 Policy & Services Committee Agenda PacketPolicy and Services Committee 1  MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA  PACKET ARE AVAILABLE ON THE CITY’S WEBSITE  Tuesday, April 13, 2021 Regular Meeting 7:00 PM ***BY VIRTUAL TELECONFERENCE ONLY*** CLICK HERE TO JOIN Zoom Meeting ID: 946 1874 4621 Phone: 1-669-900-6833 Pursuant to the provisions of California Governor’s Executive Order N-29-20, issued on March 17, 2020, to prevent the spread of Covid-19, this meeting will be held by virtual teleconference only, with no physical location. The meeting will be broadcast on Midpen Media Center at https://midpenmedia.org. Members of the public who wish to participate by computer or phone can find the instructions at the end of this agenda. PUBLIC COMMENT Members of the public may speak to agendized items. If you wish to address the Committee on any issue that is on this agenda, please complete a speaker request card located on the table at the entrance to the Council Chambers/Community Meeting Room and deliver it to the Clerk prior to discussion of the item. You are not required to give your name on the speaker card in order to speak to the Committee, but it is very helpful. Public comment may be addressed to the full Policy and Services Committee via email at City.Council@cityofpaloalto.org. Call to Order Oral Communications Members of the public may speak to any item NOT on the agenda. Action Items 1. Discussion and Recommendation to the City Council to Accept the City Auditor’s Quarterly Status Report (Q3 of Fiscal Year 2021); and Approve Additional Task Orders for Approved Audit Activities 2. City Council Referral to the Policy and Services Committee: Consideration of Rent Forgiveness for City Tenants in an Amount Not-to-Exceed the City Council COVID-19 Reserve 3. Discussion and Recommendation to Council on Referring Investigations of Discrimination, Harassment, and Retaliation by Police Officers to the Independent Police Auditor Future Meetings and Agendas Adjournment AMERICANS WITH DISABILITY ACT (ADA): Persons with disabilities who require auxiliary aids or services in using City facilities, services or programs or who would like information on the City’s compliance with the Americans with Disabilities Act (ADA) of 1990, may contact (650) 329-2550 (Voice) 24 hours in advance. Presentation Presentation Presentation Public Comment  2 April 13, 2021   MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA  PACKET ARE AVAILABLE ON THE CITY’S WEBSITE  Public Comment Instructions Members of the Public may provide public comments to virtual meetings via teleconference or by phone. 1. Spoken public comments using a computer will be accepted through the teleconference meeting. To address the Committee, click on the link below to access a Zoom-based meeting. Please read the following instructions carefully. A. You may download the Zoom client or connect to the meeting in- browser. If using your browser, make sure you are using a current, up-to-date browser: Chrome 30+, Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain functionality may be disabled in older browsers including Internet Explorer. B. You may be asked to enter an email address and name. We request that you identify yourself by name as this will be visible online and will be used to notify you that it is your turn to speak. C. When you wish to speak on an Agenda Item, click on “raise hand.” The Clerk will activate and unmute speakers in turn. Speakers will be notified shortly before they are called to speak. D. When called, please limit your remarks to the time limit allotted. E. A timer will be shown on the computer to help keep track of your comments. 2. Spoken public comments using a smart phone will be accepted through the teleconference meeting. To address the Committee, download the Zoom application onto your phone from the Apple App Store or Google Play Store and enter the Meeting ID below. Please follow the instructions B-E above. 3. Spoken public comments using a phone use the telephone number listed below. When you wish to speak on an agenda item hit *9 on your phone so we know that you wish to speak. You will be asked to provide your first and last name before addressing the Committee. You will be advised how long you have to speak. When called please limit your remarks to the agenda item and time limit allotted. CLICK HERE TO JOIN Zoom Meeting ID: 946 1874 4621 Phone No: 1-669-900-6833 City of Palo Alto (ID # 12109) Policy and Services Committee Staff Report Report Type: Action Items Meeting Date: 4/13/2021 City of Palo Alto Page 1 Summary Title: City Auditor's Quarterly Status Report - January through March 2021 Title: Discussion and Recommendation to the City Council to Accept the City Auditor’s Quarterly Status Report (Q3 of Fiscal Year 2021) and Approve Additional Task Orders for Approved Audit Activities From: City Manager Lead Department: City Auditor Recommendation The City Auditor recommends that the Policy & Services Committee take the following actions and forward the corresponding report to City Council for consent: 1) Accept the Office of the City Auditor’s Quarterly Status Report covering January – March 2021 2) Approve the following Task Orders, identified in the Audit Plan Report: o Building Permitting Process Review o Non-Profit Agreement Risk Review Discussion Quarterly Status Report – January – March 2021 In accordance with Task 5 of our agreement with the City, Baker Tilly is required to report quarterly to the Policy & Services Committee on a variety of topics, generally including progress to plan. Baker Tilly intends to present on status and is asking that the Policy & Services Committee accept the Quarterly Status Report covering January – March 2021. Our presentation includes the following high level status updates organized by task within our agreement with the City: • Task 1 – Citywide Risk Assessment o Presented to and Approved by P&S on February 9, 2021 o Presented to and Approved by City Council on March 1, 2021 • Task 2 – Annual Audit Plan City of Palo Alto Page 2 o Presented to and Approved by P&S on February 9, 2021 o Presented to and Approved by City Council on March 1, 2021 • Task 3 – Financial Audit o Finalized the FY20 Single Audit Report and Prepared to Present at the April 6, 2021 Finance Committee Meeting o Developed an Amendment to Extend the Financial Auditor Contract for 1- year and Sought Staff Approval Through the Exception for Competitive Solicitation Process o Prepared to Obtain City Council Approval of the Contract Extension at an April Meeting • Task 4 – Execute Audit Plan o Conducted Kick-offs of All Projects Approved by City Council on March 1, 2021 • Task 5 – Periodic Reporting and Hotline Monitoring o Closed Two (of two) Hotline Reports Received in CY21 • Task 6 – City Auditor evaluation o N/A Approval of Task Orders In its capacity serving as the City Auditor, and in accordance with Baker Tilly’s agreement with the City, Baker Tilly performed a citywide risk assessment. The purpose of the assessment was to identify and prioritize risks in order to develop the annual audit plan. Baker Tilly presented the assessment to the P&S Committee in February and subsequently presented to City Council in March. The Palo Alto Municipal Code (Section 2.08.130) requires the City Auditor prepare and submit an annual audit plan to the City Council for review and approval. Baker Tilly presented the Audit Plan to the P&S Committee in February and subsequently presented to City Council in March. The Audit Plan was approved at the March 1, 2021 Council Meeting. At that time, the City Auditor noted that it would subsequently seek approval of certain Task Orders included within the plan. Today, the City Auditor is seeking P&S Committee approval of the following Task Orders, identified within the approved Audit Plan Report: 1) Building Permitting Process Review 2) Non-Profit Agreement Risk Review Respectfully Submitted, Kyle O’Rourke City Auditor and Senior Manager, Baker Tilly City of Palo Alto Page 3 Attachments: • Office of the City Auditor - Task Orders for March Approval FY2021/2022 Audit Plan 10 Task Orders *Note that certain items are subject to change pending Council discussion and approval. Budget Status FY21 FY22 FY21 – FY22 Total in Contract $550,000 $750,000 $1,300,000 Total Invoiced Amount $76,854 - $76,854 Total Contract Remaining $473,146 $750,000 $1,223,146 Total in Contract for tasks under Task Orders (Task 4) $390,000 $600,000 $990,000 Audit Activity 4.9 – Building Permitting Process Review PROFESSIONAL SERVICES TASK ORDER TASK ORDER 1 – FY21 Consultant shall perform the Services detailed below in accordance with all the terms and conditions of the Agreement referenced in Item 1A below. All exhibits referenced in Item 8 below are incorporated into this Task Order by this reference. The Consultant shall furnish the necessary facilities, professional, technical and supporting personnel required by this Task Order as described below. CONTRACT NO. OR PURCHASE ORDER REQUISITION NO. (AS APPLICABLE) 1A. MASTER AGREEMENT NO. (MAY BE SAME AS CONTRACT / P.O. NO. ABOVE): 1B. TASK O RDER NO.: FY21-009 2. CONSULTANT NAME: Baker Tilly US, LLP 3. PERIOD OF PERFORMANCE: START: May 1, 2021 COMPLETION: December 31, 2021 4 TOTAL TASK ORDER PRICE: $83,500 BALANCE REMAINING IN MASTER AGREEMENT/CONTRACT $1,235,000 5. BUDGET CODE_______________ COST CENTER________________ COST ELEMENT______________ WBS/CIP__________ PHASE__________ 6. CITY PROJECT MANAGER’S NAME & DEPARTMENT: Lydia Kou, Chair of the City Council’s Policy and Services Committee 7. DESCRIPTION OF SCOPE OF SERVICES (Attachment A) MUST INCLUDE:  SERVICES AND DELIVERABLES TO BE PROVIDED  SCHEDULE OF PERFORMANCE  MAXIMUM COMPENSATION AMOUNT AND RATE SCHEDULE (as applicable)  REIMBURSABLE EXPENSES, if any (with “not to exceed” amount) 8. ATTACHMENTS: A: Task Order Scope of Services B (if any): N/A I hereby authorize the performance of the work described in this Task Order. APPROVED: CITY OF PALO ALTO BY:____________________________________ Name __________________________________ Title___________________________________ Date ___________________________________ I hereby acknowledge receipt and acceptance of this Task Order and warrant that I have authority to sign on behalf of Consultant. APPROVED: COMPANY NAME: ______________________ BY:____________________________________ Name __________________________________ Title___________________________________ Date ___________________________________ Attachment A DESCRIPTION OF SCOPE OF SERVICES Introduction Attachment A, the Description of Scope of Services, contains the following four (4) elements: • Services and Deliverables To Be Provided • Schedule of Performance • Maximum Compensation Amount and Rate Schedule (As Applicable) • Reimbursable Expenses, if any (With “Not To Exceed” Amount) Services & Deliverables Baker Tilly’s approach to conducting the Building Permitting and Inspection Process Review involves three (3) primary steps: • Step 1: Audit Planning • Step 2: Business Process Analysis • Step 3: Reporting Step 1 – Audit Planning This step consists of the tasks performed to adequately plan the work necessary to address the overall audit objective and to solidify mutual understanding of the audit scope, objectives, review process, and timing between stakeholders and auditors. Tasks include: • Gather information to understand the environment under review o Understand the organizational objectives, structure, staffing and business processes of the functions assigned to the Chief Building Official o Review applicable ordinances, building codes, regulations, policies, and other standards and expectations with respect to building permitting and inspection o Review prior audit results, if applicable o Review additional documentation and conduct interviews as necessary to perform preliminary risk analysis for the purpose of identifying permit types or sub-processes to be reviewed • Secure agreement on the audit objectives. Preliminary audit objectives are to: (1) Identify highest impact area to focus the assessment (e.g., specific permit type(s), specific sub-processes, customer segments, etc.); (2) Assess permitting and inspections process efficiency and effectiveness, (3) Benchmark building permitting and inspections performance against best practices, industry standards, and a selected sample of comparable local government jurisdictions • Assess the audit risk • Write an audit planning memo and audit program o Refine audit objectives and scope o Identify the audit procedures to be performed and the evidence to be obtained and examined • Announce the initiation of the audit and conduct a kick-off meeting with key participants o Discuss audit objectives, scope, audit process, timing, resources, and expectations o Discuss documentation requests, interview participants and stakeholder engagement for the review Step 2 – Organizational and Business Process Analysis This step involves executing the procedures in the audit program to gather information, interview individual process owners and participants, survey appropriate industry stakeholders, conduct focus groups and field observations, and analyze the data and information gathered in order to obtain sufficient evidence to address the agreed-upon audit objectives. Audit procedures will include, but are not limited to: • Interview the appropriate internal and external stakeholders and process owners to understand the process, the information system used, and the internal controls related to building permitting and inspections. • Narrow focus to one (1) to two (2) high risk permitting categories/types as determined through the planning process. • Administer a confidential survey of external building permit and inspections process stakeholders (residential and commercial contractors and design professionals) and complete follow-up building industry focus groups for selected permit types. • Review the building codes, state statutes, and other applicable policies, practices, procedures, regulations and standards to identify the criteria to be used for analysis of the organizational structure, performance and results, staffing levels, business processes, and supporting technologies utilized by the permitting and inspections unit. • Perform test procedures including observation of controls (such as application controls) and review of selected documents (such as supporting documents for the receipt and processing of permit applications, collection of permit and inspection fees, key performance indicators, etc.) • Benchmark operational performance against industry best practices and established standards Step 3 – Reporting In Step 3, the project team will perform tasks necessary to finalize audit working papers, prepare and review a draft report with the stakeholders, and submit a final audit report. Tasks include: • Develop findings, conclusions, and recommendations based on the supporting evidence gathered • Validate findings with the appropriate individuals and discuss the root cause of the identified findings • Complete supervisory review of working papers and a draft audit report • Distribute a draft audit report and conduct a closing meeting with key stakeholders o Discuss the audit results, finings, conclusions, and recommendations o Discuss management responses • Obtain written management responses and finalize a report • Review report with members of City Council and/or the appropriate Council Committee • Present the final report to the City Council and/or appropriate Council Committee Deliverables: The following deliverable will be prepared as part of this engagement: • Audit Report Schedule of Performance Anticipated Start Date: May 1, 2021 Anticipated End Date: December 31, 2021 Maximum Compensation Amount and Rate Schedule The not-to-exceed maximum, inclusive of reimbursable expenses (as summarized below) for this Task is $83,500. The not-to-exceed budget is based on an estimate of 360 total project hours, of which 40 are estimated to be completed by the City Auditor. Reimbursable Expenses If circumstances allow, Baker Tilly anticipates planning one on-site fieldwork week. Given this possibility, Baker Tilly could incur reimbursable expenses for this Task. The not-to-exceed maximum for reimbursable expenses for this Task is $5,600. The following summarizes anticipated reimbursable expenses (three trips): • Round-trip Airfare – $1,800 • Rental Car - $500 • Hotel accommodation - $2,600 (6 nights) • Food and incidentals – $700 Note that if current restrictions associated with COVID-19 continue, an on-site visit may not be possible. The project team will work with the City to consider circumstances at the time. Audit Activity 4.10 – Nonprofit Agreement Risk Management PROFESSIONAL SERVICES TASK ORDER TASK ORDER 1 – FY21 Consultant shall perform the Services detailed below in accordance with all the terms and conditions of the Agreement referenced in Item 1A below. All exhibits referenced in Item 8 below are incorporated into this Task Order by this reference. The Consultant shall furnish the necessary facilities, professional, technical and supporting personnel required by this Task Order as described below. CONTRACT NO. OR PURCHASE ORDER REQUISITION NO. (AS APPLICABLE) 1A. MASTER AGREEMENT NO. (MAY BE SAME AS CONTRACT / P.O. NO. ABOVE): 1B. TASK O RDER NO.: FY21-010 2. CONSULTANT NAME: Baker Tilly US, LLP 3. PERIOD OF PERFORMANCE: START: May 1, 2021 COMPLETION: December 31, 2021 4 TOTAL TASK ORDER PRICE: $82,875 BALANCE REMAINING IN MASTER AGREEMENT/CONTRACT $1,235,000 5. BUDGET CODE_______________ COST CENTER________________ COST ELEMENT______________ WBS/CIP__________ PHASE__________ 6. CITY PROJECT MANAGER’S NAME & DEPARTMENT: Alison Cormack, Chair of the City Council’s Policy and Services Committee 7. DESCRIPTION OF SCOPE OF SERVICES (Attachment A) MUST INCLUDE:  SERVICES AND DELIVERABLES TO BE PROVIDED  SCHEDULE OF PERFORMANCE  MAXIMUM COMPENSATION AMOUNT AND RATE SCHEDULE (as applicable)  REIMBURSABLE EXPENSES, if any (with “not to exceed” amount) 8. ATTACHMENTS: A: Task Order Scope of Services B (if any): N/A I hereby authorize the performance of the work described in this Task Order. APPROVED: CITY OF PALO ALTO BY:____________________________________ Name __________________________________ Title___________________________________ Date ___________________________________ I hereby acknowledge receipt and acceptance of this Task Order and warrant that I have authority to sign on behalf of Consultant. APPROVED: COMPANY NAME: ______________________ BY:____________________________________ Name __________________________________ Title___________________________________ Date ___________________________________ Attachment A DESCRIPTION OF SCOPE OF SERVICES Introduction Attachment A, the Description of Scope of Services, contains the following four (4) elements: • Services and Deliverables To Be Provided • Schedule of Performance • Maximum Compensation Amount and Rate Schedule (As Applicable) • Reimbursable Expenses, if any (With “Not To Exceed” Amount) Services & Deliverables Baker Tilly’s approach to conducting a Nonprofit Agreements Risk Management Review involves three (3) primary steps: • Step 1: Audit Planning • Step 2: Process and Control Review • Step 3: Reporting Step 1 – Audit Planning This step consists of the tasks performed to adequately plan the work necessary to address the overall audit objective and to solidify mutual understanding of the audit scope, objectives, audit process, and timing between stakeholders and auditors. Tasks include: • Gather information to understand the environment under review o Understand the organizational structure and objectives o Review the City code, regulations, and other standards and expectations o Review prior audit results, as applicable o Review additional documentation and conduct interviews as necessary • Assess the audit risk • Write an audit planning memo and audit program o Refine audit objectives and scope o Identify the audit procedures to be performed and the evidence to be obtained and examined • Announce the initiation of the audit and conduct kick-off meeting with key stakeholders o Discuss audit objectives, scope, audit process, timing, resources, and expectations o Discuss documentation and interview requests for the audit Step 2 – Process and Control Review This step involves executing the procedures in the audit program to gather information, interview individuals, and analyze the data and information to obtain sufficient evidence to address the audit objectives. The preliminary audit objective is to: (1) Determine whether adequate controls are in place and working effectively to ensure that nonprofit organizations are properly selected and monitored for successful partnership; (2) Assess the selection and monitoring process against the best practices. Procedures include: • Interview the appropriate individuals to understand the process, the information system used, and internal controls related to selection and approval of nonprofit organizations, contracting process, and performance monitoring activities • Review policies and procedures as well as the regulations and standards to identify the criteria to be used for evaluation of control design and effectiveness • Review the documents (such as contracts and related procurement files, payments, and performance reviews) for the selected nonprofit organizations • Compare the process and controls against best practices Step 3 – Reporting In Step 3, the project team will perform tasks necessary to finalize audit working papers, prepare and review a draft report with the stakeholders, and submit a final audit report. Tasks include: • Develop findings, conclusions, and recommendations based on the supporting evidence gathered • Validate findings with the appropriate individuals and discuss the root cause of the identified findings • Complete supervisory review of working papers and a draft audit report • Distribute a draft audit report and conduct a closing meeting with key stakeholders o Discuss the audit results, finings, conclusions, and recommendations o Discuss management responses • Obtain written management responses and finalize a report • Review report with members of City Council and/or the appropriate Council Committee • Present the final report to the City Council and/or appropriate Council Committee Deliverables: The following deliverable will be prepared as part of this engagement: • Audit Report Schedule of Performance Anticipated Start Date: May 1, 2021 Anticipated End Date: December 31, 2021 Maximum Compensation Amount and Rate Schedule The not-to-exceed maximum, inclusive of reimbursable expenses (as summarized below) for this Task is $82,875. The not-to-exceed budget is based on an estimate of 400 total project hours, of which 20 are estimated to be completed by the City Auditor. Reimbursable Expenses If circumstances allow, Baker Tilly anticipates planning one on-site fieldwork week. Given this possibility, Baker Tilly could incur reimbursable expenses for this Task. The not-to-exceed maximum for reimbursable expenses for this Task is $5,200. The following summarizes anticipated reimbursable expenses (for three team members): • Round-trip Airfare – $1,500 • Rental Car - $400 • Hotel accommodation - $2,500 (6 nights) • Food and incidentals – $800 Note that, if current restrictions associated with COVID-19 continue, an on-site visit may not be possible. The project team will work with the City to consider circumstances at the time. City of Palo Alto (ID # 12078) Policy and Services Committee Staff Report Report Type: Action Items Meeting Date: 4/13/2021 City of Palo Alto Page 1 Summary Title: Rent Forgiveness Program Title: City Council Referral to Policy & Services: Consideration of Rent Forgiveness for City Tenants in an Amount not to Exceed the City Council COVID-19 Reserve From: City Manager Lead Department: Administrative Services Recommendation Staff recommends that the Policy & Services Committee recommend for Council consideration the creation of a rent forgiveness program for City tenants who were not forgiven three months of rent by City Council on March 1, 2021, for up to three months and not to exceed $50,000 per tenant. Background At the March 1, 2021 City Council meeting, staff presented and discussed with City Council options for a potential rent forgiveness program for City tenants including non- profit and for-profit (CMR 11872). City Council approved to forgive three months of rent for active non-profit tenants. Council also approved the eight program qualifications and funding to come from the City Council COVID-19 Contingency Fund. The Council approved option had an estimated cost of up to $203,000 (Option C from CMR 11872). City Council also directed the Policy and Services Committee to review a rent forgiveness program for other qualified City tenants (for-profit tenants) with program costs not-to-exceed the $744,000 available in the COVID-19 Contingency Fund including the $203,000 already approved from the March 1, 2021 Council action. California Governor Gavin Newsom signed an executive order N-80-20 on September 23, 2020 that protected commercial tenants from being evicted until March 31, 2021. Santa Clara County passed an ordinance NS-9.293 on November 3, 2020 extending the temporary moratorium on evictions in Santa Clara County for non-payment of rent by small business tenants through the date of Governor Newsom’s Executive Order N-80- 20 or April 30, 2021, whichever is earlier. California Governor Gavin Newsom signed legislation on March 4, 2021 that extended eviction moratorium through June 30, 2021 for commercial tenants. Under the County’s moratorium, small business tenants have City of Palo Alto Page 2 up to six months after the moratorium expires or terminates to repay at least 50% of the past-due rent, and up to 12 months after the moratorium expires or terminates to repay in full the past-due rent. Discussion Staff seeks Policy & Services Committee direction to determine final eligibility of tenants who qualify to participate in the rent forgiveness program. Staff has proposed tenant rent forgiveness program options and qualifications for tenants to meet. The rent forgiveness program options in this report for the Committee to consider include: • Option 1 – Rent Forgiveness using a pro rata share approach • Option 2 – Rent Forgiveness using a COVID-19 impact approach • Option 3 – No Rent Forgiveness Further, staff recommends the Policy & Service Committee consider the following eight qualifications for the establishment of a rent forgiveness program, following Council direction with some variations. To simplify the qualification process staff eliminated the requirement that gross revenue be less than $2.5 million in 2019. Staff also added the requirement that applicants have an active Business Registry account. The recommended qualifications include: 1. The rent forgiveness program is available to tenants that have satisfied all responsibilities under their existing rental agreement, have no outstanding delinquencies for any payments due prior to April 1, 2020, and are current tenants as of the date of the application. 2. Tenants must be active in the City of Palo Alto Business Registry. 3. Tenants must cite section(s) of the County’s Public Health Orders that restricted tenant’s operations. 4. Rent must be over $100 per month including operating expenses. 5. Tenants will be required to complete a form describing their impact from the COVID-19 pandemic and provide financial statements demonstrating the amount of reduced business revenue. 6. The business must provide an income statement demonstrating a decline in gross revenue during the first half of 2020 of at least 50% compared to the same period in 2019. 7. If a qualified tenant paid rent during the forgiveness period instead of deferring, the rent may qualify as credits to be used for rent owed in the following three months subject to an approved lease amendment. 8. Tenants that meet all qualifications will be required to enter into a lease amendment to the lease, subject to City Manager approval. City of Palo Alto Page 3 Based on the above qualifications, there is the possibility to assist 38 tenants or more depending on the actual number of tenants who qualify for Option C (Attachment A – List of Tenants). The rent forgiveness considers tenants experiencing a loss of revenue at a certain level attributed to the COVID-19 pandemic. To determine which tenants qualify and are most in need of rent forgiveness, tenants will be required to complete a form describing their impact from the COVID-19 pandemic and provide financial statements demonstrating the amount of reduced business revenue. The list of proposed tenants excludes tenants that already received rent forgiveness from the Council adopted March 1, 2021 program and operational tenants who were not impacted by closures related to the Public Health Order such as cell towers and ground lease tenants. Staff considered using data on the number of Palo Alto residents served by the tenant to qualify applicants, however staff determined that the data would be hard to compare across applicants. Another option considered for analysis was using rent per square foot but the space for tenants varied in rent from below market rate space at Cubberley to market rate space which made it difficult to compare. It should be noted in the list of tenants that OB Sports Golf Management is unique in that they are both a tenant and vendor since they manage the golf course operations. The following tenant statistics are provided as context when considering the program: • The average rent per square foot is approximately $1.50 • The rent per square foot ranges from $0.27 to $5.47 • Over 75% of the City’s for-profit tenants pay less than $2.00 per square foot • 60% of the City’s for-profit tenants rent space at Cubberley Community Center • Over 90% of tenants’ rent is less than $50,000 per month Options for Policy & Service Committee consideration include: Rent Forgiveness Options to Consider Estimated Impact Cost Time Covered Option 1 – Rent Forgiveness using a pro rata share approach Up to $541,000* Up to 3 months Option 2 – Rent Forgiveness using a COVID-19 impact approach Up to $541,000* Up to 3 months Option 3 – No Rent Forgiveness $0 N/A * The cost could be more if the actual cost of Option C approved from the March 1, 2021 is less than $203,000 • Option 1 – This option would provide rent forgiveness up to three months and not to exceed $50,000 per tenant. The amount will be determined through a pro rata approach. The pro rata approach uses the monthly rent divided by the total City of Palo Alto Page 4 monthly rent to get a percentage which is then multiplied by the estimated impact cost. For example, if a tenant’s rent is $1,000 per month and the total rent combined for all qualified tenants is $200,000, that equals .5%. If the estimated impact cost is $541,000, the tenant would receive $2,705 in rent forgiveness in this example. A tenant will be limited to three months of rent forgiveness. This approach would allow for an equitable distribution of rent forgiveness to all qualified tenants. • Option 2 – This option would require analysis of financial statements from tenants to demonstrate a minimum of 50% loss in revenue between 2019 to 2020. Tenants would need to provide monthly financials for 2019 and 2020 in their application for staff to determine whether there was a loss revenue greater than 50%. If the tenant shows a loss throughout the year, the tenant would be eligible for rent forgiveness up to three months and not to exceed $50,000. From a staff perspective, this option has the greatest administrative ease in implementation. • Option 3 – This option would not provide rent forgiveness to tenants that did not qualify under the first program (adopted by Council on March 1, 2021 that supported non-profit tenants only). The County’s eviction moratorium has been continued multiple times throughout 2020 and is scheduled to expire June 30, 2021. The eviction moratorium could be extended further into 2021. By delaying the forgiveness program until the eviction moratorium expires, staff may receive assistance or guidance from the state or other agency in helping tenants. Timeline Staff will notify qualified tenants about the rent forgiveness program requirements and provide forms after City Council’s approval following the Policy & Services committee’s consideration and recommendation for Council review. Resource Impact The FY 2021 Adopted Operating Budget includes a COVID-19 Council Reserve in the amount of $744,000. On March 1, 2021, as part of CMR #11872, Council approved the use of up to $203,000 to forgive three months of rent in accordance with Option C. Council also approved the eight program qualifications and for funding to come from the City Council COVID19 Contingency Fund. The ultimate cost of the rental relief program could be up to the total amount of the COVID-19 Council Reserve, $744,000; however, the final amount will depend on the number of tenants that apply and qualify for the program. Stakeholder Engagement Since the Council Meeting on March 1, 2021, staff has continued to receive correspondence via telephone and email requesting rent forgiveness from tenants. Tenants have explained the hardship due to COVID-19 on their business operations. City of Palo Alto Page 5 The hardships experienced include lower enrollment numbers as business resumes in limited capacity, lack of space due to social distancing requirements, and inability to generate revenues to offset overhead cost. As the County’s Public Health Order tiers become less restrictive, tenants have informed the City of their plans to resume their business operations at the limited capacities allowed. Environmental Review The rent reduction programs as proposed are not a project under CEQA per CEQA Guidelines 15061(b)(3). Attachments: • List of COPA Tenants Tenant Location Program Eligibility Advantage Aviation Airport For-Profit Forgiveness Aero Works Airport For-Profit Forgiveness Austro Aircraft Airport For-Profit Forgiveness College of Palo Alto Airport For-Profit Forgiveness JATO Aviation Airport For-Profit Forgiveness Rossi Aircraft Airport For-Profit Forgiveness Sundance Flying Club Airport For-Profit Forgiveness Barbara Boissevain Artist For-Profit Forgiveness Carmina Eliason Artist For-Profit Forgiveness Chandrika Marla Artist For-Profit Forgiveness Conrad Johnson Artist For-Profit Forgiveness Danièle Archambault Artist For-Profit Forgiveness Darryl Dieckman Artist For-Profit Forgiveness Elizabeth Bennett Artist For-Profit Forgiveness Ernest Regua Artist For-Profit Forgiveness Harumo Sato Artist For-Profit Forgiveness Jennifer Gonsalves Artist For-Profit Forgiveness Martha Sakellariou Artist For-Profit Forgiveness Mel Day Artist For-Profit Forgiveness Paloma Lucas Artist For-Profit Forgiveness Pantea Karimi Artist For-Profit Forgiveness Patrick Fenton Artist For-Profit Forgiveness Rachelle Doorley Artist For-Profit Forgiveness Robin Mullery Artist For-Profit Forgiveness Sahba Shere Artist For-Profit Forgiveness Servane Briand Artist For-Profit Forgiveness t.w. five (Andersson, Pernilla / Pereira, Paula)Artist For-Profit Forgiveness Tara de la Garza Artist For-Profit Forgiveness JSRFIT LLC d.b.a. Form Fitness Bryant Street For-Profit Forgiveness Sanghee Lee City Hall For-Profit Forgiveness Acme Education Group, Inc.Cubberley For-Profit Forgiveness California Law Review Cubberley For-Profit Forgiveness Dance Connection Cubberley For-Profit Forgiveness Melody Academy of Music Inc.Cubberley For-Profit Forgiveness Ranger Taekwondo Cubberley For-Profit Forgiveness OB Sports Golf Management (Baylands), LLC Embarcadero Road For-Profit Forgiveness Kids Choice Stanford Avenue For-Profit Forgiveness Palo Alto Lawn Bowls Club Waverley Street For-Profit Forgiveness Stanford Flying Club Airport Non-Profit Forgiveness West Valley Flying Club Airport Non-Profit Forgiveness Avenidas Cubberley Non-Profit Forgiveness BrainVyne Cubberley Non-Profit Forgiveness California Pop Orchestra Cubberley Non-Profit Forgiveness Children's Pre-School Center Cubberley Non-Profit Forgiveness Dance Action inc (dba Dance Visions)Cubberley Non-Profit Forgiveness Dance Magic Cubberley Non-Profit Forgiveness Friends of the Palo Alto Library Cubberley Non-Profit Forgiveness Heart Fit for Life (Cardiac Therapy Foundation) Cubberley Non-Profit Forgiveness Hua Kuang Chinese Reading Room Cubberley Non-Profit Forgiveness Living Wisdom High School Cubberley Non-Profit Forgiveness Minority Television Project Cubberley Non-Profit Forgiveness Palo Alto Community Child Care Cubberley Non-Profit Forgiveness Palo Alto Humane Society Cubberley Non-Profit Forgiveness Palo Alto Soccer Club Cubberley Non-Profit Forgiveness Reach Cubberley Non-Profit Forgiveness Zohar Dance Company Cubberley Non-Profit Forgiveness Palo Alto Players-Peninsula Center Stage Lucie Stern Non-Profit Forgiveness Bay Area Cellular Telephone Company dba AT&T Cell Tower Operations Not Restricted GTE Mobilenet of California Limited Partnership (Verizon)Cell Tower Operations Not Restricted Omnipoint Communications, Inc (T-Mobile)Cell Tower Operations Not Restricted PTI US Towers II, LLC Cell Tower Operations Not Restricted Sprint Spectrum L.P. Cell Tower Operations Not Restricted Me Fit Vending, LLC City Hall Operations Not Restricted San Mateo Credit Union City Hall Operations Not Restricted Anderson Honda Geng Road Operations Not Restricted The Purple Pipe LLC LATP Operations Not Restricted Valley Transportation Authority Train Depot Operations Not Restricted Precision Engineering, Inc.N/A No Longer a Tenant Abundant Air Café N/A No Longer a Tenant Art of Living Foundation N/A No Longer a Tenant Catherine di Napoli N/A No Longer a Tenant Community For Christ Church of Palo Alto N/A No Longer a Tenant Good Neighbor Montessori N/A No Longer a Tenant Imagination School N/A No Longer a Tenant IVY GOAL EDUCATION CO N/A No Longer a Tenant Karer CDC LLC N/A No Longer a Tenant Silicon Valley Karate N/A No Longer a Tenant Yishu Wang N/A No Longer a Tenant CITY OF PALO ALTO OFFICES OF THE CITY MANAGER AND THE CITY ATTORNEY April 13, 2021 The Honorable City Council Palo Alto, California Discussion and Recommendation to Council on Referring Investigations of Discrimination, Harassment and Retaliation by Police Officers to the Independent Police Auditor Recommendation Policy & Services Committee should discuss and make a recommendation to Council on whether City investigations of uniformed officers arising from internal complaints regarding employee harassment, discrimination, or retaliation in the workplace should be referred to the Independent Police Auditor (IPA) for secondary review, and if so, how reporting should be handled. Background Since approximately 2006, Palo Alto has contracted with an outside firm to act as Independent Police Auditor (IPA). For many years, the IPA has performed several functions for Palo Alto. First, the IPA has provided independent review of PAPD investigations of complaints made by members of the public against police officers and investigations of potential policy violations by uniformed officers that come to the attention of the Chief, even when a complaint is not filed. Department management confers with IPA periodically as investigations are opened and in process. When the Department’s investigation is complete, the IPA conducts a secondary review and assesses “thoroughness, objectivity and appropriateness” of the investigation and disposition. Where appropriate, the IPA provides recommendations for training, procedural adjustments or other follow-up actions. Second, the IPA has reviewed every deployment of a TASER device and the PAPD’s use of force review of that deployment, regardless of whether a complaint is filed. Approximately twice a year, the IPA has produced a written public report to the City Manager and City Council summarizing the IPA’s conclusions and comments. In late 2019, the City Council adopted the current IPA contract. At that time, the approved contract excluded review of City investigations of uniformed officers Page 2 arising from internal complaints regarding employee harassment, discrimination, and retaliation in the workplace from the IPA scope of work. The December 16, 2019 Staff report can be found here: https://www.cityofpaloalto.org/civicax/filebank/documents/74434 In November 2020, Council directed that the IPA’s scope of review be expanded to include secondary review of: • incidents where an officer uses a baton, chemical agent, less-lethal projectile, canine, or firearm (in addition to TASER uses, which have been and will continue to be reviewed by the IPA) • incidents resulting in an injury requiring treatment beyond minor medical care in the field • the Police Department’s handling of Supervisory Inquiry Reports (formerly called Informal Inquiry Reports) (complaints that are sufficiently investigated and resolved through expedited review) Council also directed changes to the schedule of reporting to improve timeliness and accountability and indicated that it will meet publicly with the IPA two times each year. Contract changes are underway that will implement these changes. Staff expects the changes to be approved by Council before their summer break and to be reflected in the next IPA report, anticipated to be published in the second half of 2021. In its November 2020 meeting, Council asked Policy & Services to consider and make a recommendation to Council on whether the IPA’s scope should be further revised to include review of City investigations of uniformed officers arising from internal complaints regarding employee harassment, discrimination, and retaliation in the workplace. If the Policy & Services Committee supports adding this scope, the Committee may wish to consider direction to staff and the IPA on reporting. Analysis State law requires all police agencies to receive and investigate complaints from the public regarding the conduct of police officers. (Cal. Penal Code §832.5.). All police agencies also have internal management controls whereby potential violations of department policies or conduct standards are investigated, even when a complaint is not filed. A second level of independent review (auditing) of police investigations is not required by law. Independent review is entirely Page 3 discretionary. Where a city chooses to implement secondary review, the parameters of review are completely up to the city. Many large metropolitan cities work with an independent auditor. It is rare for a smaller city such as Palo Alto to do so. Since the inception of the IPA program in Palo Alto in 2006, the IPA has reviewed investigations regarding sworn personnel. Most IPA reviews have involved officers’ interactions with the public (for example while patrolling, conducting investigations, issuing citations, or making arrests). In 2019, discussions began in Palo Alto as to whether the IPA should investigate and comment on City investigations of internal personnel matters not directly involving members of the public. In late 2019, Council determined that the IPA’s contract should not include review of these matters. In 2020, Council asked the Policy & Services Committee to consider the issue again, focusing on potential IPA review of City investigations of uniformed officers arising from internal complaints regarding harassment, discrimination, or retaliation. The City and Police Department have comprehensive policies prohibiting harassment, discrimination and retaliation in the workforce. (See Attachments A and B.) In addition to prohibiting any conduct that is discriminatory or harassing, the City’s policies prohibit retaliation of any kind against anyone who makes a complaint or participates in an investigation. Under the City’s policies, any employee with a concern about harassment, discrimination or retaliation can complain through multiple channels, including to their supervisor, the Human Resources Department, or any manager at the City. Depending on the nature of the issues raised, an investigation involving harassment, discrimination or retaliation may be conducted by the involved department, the Human Resources Department, or an outside specialized employment investigator. Discrimination, harassment and retaliation investigations can involve sensitive, embarrassing or upsetting incidents. They often involve multiple employees or a work unit. Emotions, perceptions, and experiences can be strongly felt and highly personal. The results of investigations are communicated in very brief summary form to complainants and subjects, and, to the extent appropriate, managers with a need to know. Other than these limited disclosures, allegations, investigations and findings are kept confidential. The primary purpose of this confidentiality is to safeguard the privacy of everyone involved, including complainants, subjects, and witnesses. This is critical to encouraging employees to come forward with their concerns and encouraging witnesses to speak frankly and fully with investigators. Page 4 In addition to the City’s internal complaint process, employees with concerns about discrimination, harassment or retaliation can also contact the state Department of Fair Employment and Housing (DFEH) and the federal Equal Employment Opportunity Commission (EEOC). Depending on the issues, additional forums may also be available, including union grievance procedures, the Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA), and state and federal court. Each year, the City receives and investigates a number of complaints of harassment, discrimination or retaliation in various departments. The Police Department has relatively few, but they do occur from time to time. Investigations of harassment, discrimination or retaliation typically result from a complaint made by another City employee, which could be a subordinate, peer, or an employee of a higher rank. In the investigation of a specific complaint, it is not uncommon for other problems with workplace dynamics to be revealed. This offers an opportunity for intervention and for improvements to be made that were not identified in the initial complaint. In cases where discrimination, harassment or retaliation is found to exist, appropriate action is taken to remedy the situation. Where warranted, this can include disciplinary action up to and including termination. Amongst jurisdictions that conduct independent secondary review of police matters, some include employee harassment, discrimination and retaliation, and other do not. For many jurisdictions with police auditing functions, the publicly available reports do not include matters regarding discrimination, harassment or retaliation. Staff has identified a handful of reviews of human resources matters in other jurisdictions’ publicly available reports. In some cases, these reviews appear to be “one-off” requests to review specific incidents rather than a continuing practice. Finally, some jurisdictions report on matters in list form, without details regarding incidents. There are policy arguments on both sides of the question. Primary among the arguments in favor of including harassment, discrimination or retaliation investigations under IPA review, is that if a sworn officer has engaged in such behavior towards other City employees in the workplace, there is a risk that similar conduct could be directed at the public. In light of this possibility, proponents of IPA review of such cases state that the City should avail itself of a secondary level of review by the IPA, and the public should receive some information in the form of public IPA reports. Page 5 On the other hand, secondary review and reporting of investigations of allegations of discrimination, harassment and retaliation can present significant privacy and confidentiality challenges for complainants, witnesses and subjects. In a small police department, it will be difficult to publicly report allegations and findings at the level that the IPA typically employs in its reporting without revealing the identity of complainants, witnesses and subjects. If allegations, facts of the investigation and findings were to be publicly disclosed, individuals’ lives and careers could be impacted, and the effectiveness of the City’s complaint resolution system could be negatively impacted. The prospect of public reporting could discourage complainants from coming forward, or witnesses from cooperating fully with investigators when their colleagues and supervisors may be implicated. These are the reasons that the City has not publicly reported on these matters to-date. While secondary review by the IPA offers some potential for additional insights, the risks to personal privacy and an effective and confidential human resources complaint system should be considered as well. If the Policy & Services Committee favors IPA review but is concerned that the confidentiality and cooperation of complainants, witnesses and subjects may be affected, the Committee could recommend that staff and the IPA explore procedures to balance these goals. If directed, staff would work with the IPA regarding options and bring results back to the Committee. Staff could also further research reporting practices in other jurisdictions and return to Committee with examples. Resource Impact If the IPA scope is expanded to include review of investigations of discrimination, harassment and retaliation, a contract amendment will be needed for the IPA contract. Cost is unknown but likely to be minimal. Additional duties would be required of City staff in the Police Department and Human Resources Department, within existing budgets. Policy Implications The City has policies prohibiting discrimination, harassment and retaliation, and has a policy of auditor review of significant incidents in the Police Department. This issue has a nexus to both policies and may require some balancing and coordination. Page 6 Environmental Review Approval of this contract is not a project for the purposes of the California Environmental Quality Act. No environmental review is required. ATTACHMENTS: •Attachment A: Anti-Harassment Policy (PDF) •Attachment B: Discriminatory Harassment Policy (PDF) Department Heads: Ed Shikada, City Manager and Molly Stump, City Attorney Page 7 POLICY AND PROCEDURES 2-13/HRD Revised: September 2005 ANTI-HARASSMENT POLICY INTRODUCTION The City of Palo Alto is committed to providing a work environment free from all forms of harassment. Actions, words, jokes or comments based on such characteristics as race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, age, or the perception that a person has such a characteristic, are prohibited. Those subject to this policy include all employees (including permanent, temporary, probationary, part-time and full-time), independent contractors, supervisors, managers, volunteers and elected officials. All phases of the employment relationship including recruitment testing, hiring, upgrading, promotion/demotion, layoffs, termination, rates of pay, benefits and selection for training are covered by this policy. Because the City is committed to a workplace free from harassment of any kind, the City’s policy sets a higher standard for behavior than is set by the law. Under both federal and state law, illegal harassment occurs when it is based on a person’s protected class (race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age) and the harassment reaches a level that is sufficiently severe and pervasive to alter a person’s working conditions. However, the City’s policy against harassment covers all harassing behaviors based on a person’s protected class whether or not it would be found to be illegal. This policy reflects the City’s desire to maintain work environments that are harmonious and productive. Those found to have violated the City’s policy will be subject to discipline, which is commensurate with the severity of the offense. The directive of the City Council is that management, administrative, supervisory personnel, and employees at all levels of City government share in the responsibility of ensuring a working environment free from harassment. Prevention is the best tool for the elimination of harassment. The City of Palo Alto will take all steps necessary to prevent harassment from occurring. These steps include affirmatively raising the subject through training and this written policy; expressing strong disapproval of inappropriate conduct; and developing appropriate sanctions. POLICY STATEMENT The City of Palo Alto opposes all forms of harassment on the job and in the workplace, including acts of employees and non-employees. The City is committed to providing a work environment in which employees are treated with Page 1 of 8 Attachment A POLICY AND PROCEDURES 2-13/HRD Revised: September 2005 respect and dignity and which is free from harassment. Unwelcome conduct, as described in the Forms of Harassment section below, based on race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, age, or the perception that a person is a member of any of these protected classes, or any person associated with a person of a protective class, violates the City’s policy and will not be tolerated. Reports of such occurrences will be thoroughly investigated and appropriate disciplinary action will be taken up to, and including, termination, if appropriate. Retaliation against a person bringing a complaint or against a person participating in an investigation of a complaint is strictly prohibited. Those engaging in retaliatory behavior will be subject to discipline up to and including termination. Retaliatory conduct may exist when a person is subject to discipline, denied promotion, or is shunned as a result of bringing a complaint of harassment or supporting a claim of harassment. Persons who report harassment are not to be punished because they complained in good faith. FORMS OF HARASSMENT Harassment includes but is not limited to a single act as described below: Verbal Harassment Examples can include epithets, derogatory comments, jokes, or slurs on the basis of a protected class (race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age). This may include well-intentioned comments on a person’s appearance or race-related stories. This may also include referring to an adult as “girl” or “boy” or using terms such as “hunk,” “babe” “stud,” or “honey.” Verbal harassment may also include sexual innuendo jokes, suggestive sounds, or stories of a sexual nature. Physical Harassment Examples can include pinching, grabbing, patting, leering, staring or touching. Other examples could be blocking movement or interfering with a person’s normal work when directed at the person because of his/her protected class or perceived protected status, or association with such a person (race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age). Put simply, physical harassment may include any kind of unwanted physical contact. Visual Harassment Page 2 of 8 Examples can include posters, cartoons, gestures or written materials which discuss or depict people based on their race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age. Visual harassment may also include Internet sites or other electronic media of a sexual or offensive nature. POLICY AND PROCEDURES 2-13/HRD Revised: September 2005 Unwanted Sexual Advances Examples can include requests for sexual favors and other acts of sexual nature, if submission is made a term or condition of employment, if submission to or rejection of the conduct is used as the basis for employment decisions, or if the conduct is intended to or actually does unreasonably interfere with an individual’s work performance or create an intimidating, hostile, or offensive working environment. Sexual Harassment Sexual harassment is a specific type of gender harassment, which can take any of the forms of harassment described above. Sexual harassment under this policy refers to unwelcome conduct of a sexual nature or that is based on sex that has the effect of interfering with a person’s work performance or creating an intimidating, hostile or offensive working environment. Included under the umbrella term of sexual harassment are overt forms of harassment such as making employment benefits conditional on sexual favors, as well as much more subtle forms. Sexual harassment includes behavior by women directed at men, by men directed at women, same sex harassment, and harassment based on sexual orientation. Guidelines for Identifying Harrassment To help clarify what constitutes harassment in violation of this policy and procedure, use the following guidelines: A. Harassment is any conduct which is “unwelcome” and which is taken because of an individual’s protected classification(s). B. It is irrelevant whether the victim appears to have voluntarily “consented” to the conduct so long as the conduct was “unwelcome”. C. Simply because no one has complained about a joke, gesture, picture, physical contact, or comment does not mean that the conduct is welcome. A work environment that is hostile to persons who belong to protected classification(s) evolves over time. Small incidents can add up to harassment. The fact that no one is complaining now does not mean that no one will complain if the conduct is repeated in the future. D. Even visual, verbal, and/or physical conduct between two employees who appear to welcome it can constitute harassment of a third applicant, employee or contractor who merely observes the conduct or learns about the conduct later. Conduct can constitute harassment even if it is not explicitly or specifically directed at the victim. Page 3 of 8 POLICY AND PROCEDURES 2-13/HRD Revised: September 2005 E. Conduct can constitute harassment in violation of this policy even if the person engaging in the conduct has no intention to harass. Instead, the focus is upon whether a person in the affected protected classification would generally find the conduct to be offensive. The reason for focusing on the recipient of conduct is that the life experiences of those in protected classifications can create heightened sensitivities. Whether the conduct at issue is offensive enough to constitute harassment is viewed from the perspective of one who belongs to the same protected classification as the victim. Therefore, even well-intentioned conduct (such as calling female employees “Hon”, or hugging, or complimenting physical appearance) can violate this policy: a) the conduct is directed at or implicated a protected classification would generally view the conduct as offensive. F. A single act can violate this policy and provide potential grounds for discipline. Therefore, if you are in doubt as to whether any particular conduct may violate this policy, do not engage in the conduct, and seek guidance from a supervisor. STANDARDS OF BEHAVIOR Any conduct, which discriminates or harasses a person covered by this policy on the basis of race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age violates the City’s policy and will not be tolerated. Because we all come to work with different backgrounds and experiences, it is natural that various levels of sensitivity are represented. Well-meaning people can disagree about what is offensive or inappropriate. In order to clarify what type of behavior is acceptable and unacceptable in the workplace, the following examples are provided as a means of offering guidance and promoting a comfortable and harassment free work environment for all. This policy is focused on the interpretation of the victim and not the intent of the harasser. It is important for you to be aware that you can be in violation of this policy even if you did not intend to harass. It is not one’s intentions but one’s actual behavior that is analyzed in a complaint. Prohibited conduct includes, but is not limited to: • Disparaging or offensive comments or jokes about a person’s actual or perceived, or association with a person based upon that person’s race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age. Page 4 of 8 POLICY AND PROCEDURES 2-13/HRD Revised: September 2005 • Any behavior or practice which treats an individual differently because of his or her actual or perceived race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age. • Systematic exclusion of an individual because of his or her race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age. • Using slang names or labels related to actual or perceived, or association with a person based upon race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age. • Ignoring or failing to take seriously a person who reports or complains of harassment. • Blaming the person who reports or complains of harassment, or suggesting that they are “thin skinned,” “too sensitive,” or that they lack a sense of humor. • Continuing behavior directed toward a person’s race, color, religion, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, or age once a person has objected to the behavior. • Displaying sexual pictures, cartoons, or calendars. PROCEDURES FOR POLICY IMPLEMENTATION The following is a list of the responsibilities assigned to City staff to ensure the policy is enforced: A. Department Heads’ Responsibility – Department Heads are responsible for distributing this policy statement to current and new employees and for directing complaints to the Human Resources Director. Department Heads are also responsible for the supervisors’ responsibilities listed below. B. Contractors, Officers and Employees’ Responsibility – All City employees and contractors and officers are responsible for adhering to this policy and for following guidelines set forth in this policy. The City is committed to immediately addressing harassing behavior but the City cannot correct what it is unaware of. Employees are responsible for reporting incidents of harassment quickly so that proper action can be taken. An individual who is interviewed during the course of an investigation is prohibited from discussing the substance of the interview, except as otherwise directed by a supervisor. Any individual who discusses the content of an investigatory interview will be subject to discipline. An individual is responsible for Page 5 of 8 POLICY AND PROCEDURES 2-13/HRD Revised: September 2005 fully cooperating with the City’s investigation into alleged violations of this policy. C. Supervisors’ Responsibility – Supervisors must take all steps necessary to prevent harassment from occurring by affirmatively raising the subject, expressing strong disapproval of inappropriate behavior/language, and informing employees of their right to raise the issue. The Supervisor’s job is to be aware of employees’ interactions in the workplace and to enforce this policy. It is a Supervisor’s responsibility to ensure that the person who complains of harassment is not subject to any form of retaliation as a result of bringing the complaint. D. City Manager’s Responsibility – The City Manager is responsible for ensuring the policy is enforced citywide. E. Human Resources Director’s Responsibility – The Human Resources Director is responsible for investigating all complaints of harassment or for hiring an outside investigator to investigate, taking appropriate action (including recommending remedial measures or discipline), as well as providing citywide “awareness” training and management/supervisor training. COMPLAINT PROCEDURES Confidentiality will be maintained to the extent possible, given the City’s need to investigate, discipline as necessary, and take remedial action, A. An individual who believes he or she has been harassed may make a complaint verbally or in writing with any of the following: 1) Immediate supervisor 2) Any supervisor or manager within or outside of the department 3) Department Head 4) Human Resources Director In order to provide Human Resources Department staff with a person outside of the department to report concerns, individual Human Resources employees may make complaints directly to the Assistant City Manager. An individual has the option to report harassment or retaliation to the U.S. Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). These agencies offer Page 6 of 8 POLICY AND PROCEDURES 2-13/HRD Revised: September 2005 legal remedies and a complaint process, City bulletin boards have posters which list DFEH and EEOC officers and telephone numbers. B. Any supervisor, manager, or department head who receives a harassment complaint must notify the Human Resources Director immediately. C. Upon receiving notification of a harassment complaint, the Human Resources Director shall: 1) Authorize and supervise the investigation of the complaint and/or investigate the complaint. The investigation will include interviews with: a) the complainant; b) the accused harasser; and c) any other persons the Human Resources Director has reason to believe have relevant knowledge concerning the complaint. 2) In consultation with the City Attorney, review the factual information gathered through the investigation to determine whether the alleged conduct constitutes harassment, in violation of the City’s policies, giving consideration to all factual information, the totality of the circumstances, including the nature of the verbal, physical, visual or sexual conduct, and the context in which the alleged incidents occurred. 3) Report to appropriate persons the summary of the results of the investigation and the determination as to whether harassment in violation of City policy occurred. Appropriate persons, includes the complainant, the alleged harasser, the supervisor, and the department head. If discipline is imposed, the discipline will not be communicated to the complainant. 4) If harassment in violation of City policy occurred, take and/or recommend to the appointing authority prompt and effective remedial action against the harasser. The action will be commensurate with the severity of the offense. 5) Take reasonable steps to protect the complainant from further harassment. 6) Take reasonable steps to protect the complainant and the participants in the complaint process from retaliation as a result of communicating the complaint. 7) If appropriate, take action to remedy the victim’s loss, if any, which resulted from the harassment. Page 7 of 8 POLICY AND PROCEDURES 2-13/HRD Revised: September 2005 Page 8 of 8 CONCLUSION The City recognizes the uniqueness of each allegation. When determining whether alleged conduct violates this policy, the totality of each circumstance will be investigated and evaluated. All incidents will be reviewed on a case-by-case basis. This policy is not to be construed as prohibiting mutually welcome social relationships between employees that have no bearing on employment conditions, decisions, or benefits. Policy 328 Palo Alto Police Department Policy Manual Copyright Lexipol, LLC 2020/08/26, All Rights Reserved. Published with permission by Palo Alto Police Department Discriminatory Harassment - 1 Discriminatory Harassment 328.1 PURPOSE AND SCOPE The purpose of this policy is to prevent [department/office] members from being subjected to discriminatory harassment, including sexual harassment and retaliation. Nothing in this policy is intended to create a legal or employment right or duty that is not created by law. 328.2 POLICY The Palo Alto Police Department is an equal opportunity employer and is committed to creating and maintaining a work environment that is free of all forms of discriminatory harassment, including sexual harassment and retaliation (Government Code § 12940(k); 2 CCR 11023). The [Department/Office] will not tolerate discrimination against a member in hiring, promotion, discharge, compensation, fringe benefits and other privileges of employment. The [Department/ Office] will take preventive and corrective action to address any behavior that violates this policy or the rights it is designed to protect. The nondiscrimination policies of the [Department/Office] may be more comprehensive than state or federal law. Conduct that violates this policy may not violate state or federal law but still could subject a member to discipline. 328.3 DEFINITIONS Definitions related to this policy include: 328.3.1 DISCRIMINATION The [Department/Office] prohibits all forms of discrimination, including any employment-related action by a member that adversely affects an applicant or member and is based on the actual or perceived race, ethnicity, national origin, religion, sex, sexual orientation, gender identity or expression, age, disability, pregnancy, genetic information, veteran status, marital status and other classifications protected by law. Discriminatory harassment, including sexual harassment, is verbal or physical conduct that demeans or shows hostility or aversion toward an individual based upon that individual’s protected class. It has the effect of interfering with an individual’s work performance or creating a hostile or abusive work environment. Conduct that may, under certain circumstances, constitute discriminatory harassment, can include making derogatory comments, crude and offensive statements or remarks; making slurs or off-color jokes, stereotyping; engaging in threatening acts; making indecent gestures, pictures, cartoons, posters or material; making inappropriate physical contact; or using written material or [department/office] equipment and/or systems to transmit or receive offensive material, statements or pictures. Such conduct is contrary to [department/office] policy and to a work environment that is free of discrimination. Attachment B Palo Alto Police Department Policy Manual Discriminatory Harassment Copyright Lexipol, LLC 2020/08/26, All Rights Reserved. Published with permission by Palo Alto Police Department Discriminatory Harassment - 2 328.3.2 SEXUAL HARASSMENT The [Department/Office] prohibits all forms of discrimination and discriminatory harassment, including sexual harassment. It is unlawful to harass an applicant or a member because of that person’s sex. Sexual harassment includes, but is not limited to, unwelcome sexual advances, requests for sexual favors or other verbal, visual or physical conduct of a sexual nature when: (a)Submission to such conduct is made either explicitly or implicitly a term or condition of employment, position or compensation. (b)Submission to, or rejection of, such conduct is used as the basis for any employment decisions affecting the member. (c)Such conduct has the purpose or effect of substantially interfering with a member's work performance or creating an intimidating, hostile, or offensive work environment. 328.3.3 ADDITIONAL CONSIDERATIONS Discrimination and discriminatory harassment do not include actions that are in accordance with established rules, principles or standards, including: (a)Acts or omission of acts based solely upon bona fide occupational qualifications under the Equal Employment Opportunity Commission (EEOC) and the California Fair Employment and Housing Council guidelines. (b)Bona fide requests or demands by a supervisor that a member improve his/her work quality or output, that the member report to the job site on time, that the member comply with City or [department/office] rules or regulations, or any other appropriate work-related communication between supervisor and member. 328.3.4 RETALIATION Retaliation is treating a person differently or engaging in acts of reprisal or intimidation against the person because he/she has engaged in protected activity, filed a charge of discrimination, participated in an investigation or opposed a discriminatory practice. Retaliation will not be tolerated. 328.4 RESPONSIBILITIES This policy applies to all [department/office] personnel. All members shall follow the intent of these guidelines in a manner that reflects [department/office] policy, professional law enforcement standards and the best interest of the [Department/Office] and its mission. Members are encouraged to promptly report any discriminatory, retaliatory or harassing conduct or known violations of this policy to a supervisor. Any member who is not comfortable with reporting violations of this policy to his/her immediate supervisor may bypass the chain of command and make the report to a higher-ranking supervisor or manager. Complaints may also be filed with the Chief of Police, the Personnel and Training Lieutenant or the City Manager. Palo Alto Police Department Policy Manual Discriminatory Harassment Copyright Lexipol, LLC 2020/08/26, All Rights Reserved. Published with permission by Palo Alto Police Department Discriminatory Harassment - 3 Any member who believes, in good faith, that he/she has been discriminated against, harassed or subjected to retaliation, or who has observed harassment or discrimination, is encouraged to promptly report such conduct in accordance with the procedures set forth in this policy. Supervisors and managers receiving information regarding alleged violations of this policy shall determine if there is any basis for the allegation and shall proceed with resolution as stated below. 328.4.1 SUPERVISOR RESPONSIBILITIES The responsibilities of each supervisor and manager shall include, but are not limited to: (a)Continually monitoring the work environment and striving to ensure that it is free from all types of unlawful discrimination, including harassment or retaliation. (b)Taking prompt, appropriate action within their work units to avoid and minimize the incidence of any form of discrimination, harassment or retaliation. (c)Ensuring that his/her subordinates understand their responsibilities under this policy. (d)Ensuring that members who make complaints or who oppose any unlawful employment practices are protected from retaliation and that such matters are kept confidential to the extent possible. (e)Making a timely determination regarding the substance of any allegation based upon all available facts. (f)Notifying the Chief of Police or Personnel and Training Lieutenant in writing of the circumstances surrounding any reported allegations or observed acts of discrimination, harassment or retaliation no later than the next business day. 328.4.2 SUPERVISOR’S ROLE Because of differences in individual values, supervisors and managers may find it difficult to recognize that their behavior or the behavior of others is discriminatory, harassing or retaliatory. Supervisors and managers shall be aware of the following considerations: (a)Behavior of supervisors and managers should represent the values of the [Department/Office] and professional law enforcement standards. (b)False or mistaken accusations of discrimination, harassment or retaliation can have negative effects on the careers of innocent members. Nothing in this section shall be construed to prevent supervisors or managers from discharging supervisory or management responsibilities, such as determining duty assignments, evaluating or counseling members or issuing discipline, in a manner that is consistent with established procedures. 328.4.3 QUESTIONS OR CLARIFICATION Members with questions regarding what constitutes discrimination, sexual harassment or retaliation are encouraged to contact a supervisor, a manager, the Chief of Police, the Personnel and Training Lieutenant, the City Manager or the California Department of Fair Employment and Housing for further information, direction or clarification. Palo Alto Police Department Policy Manual Discriminatory Harassment Copyright Lexipol, LLC 2020/08/26, All Rights Reserved. Published with permission by Palo Alto Police Department Discriminatory Harassment - 4 328.5 INVESTIGATION OF COMPLAINTS Various methods of resolution exist. During the pendency of any such investigation, the supervisor of the involved member should take prompt and reasonable steps to mitigate or eliminate any continuing abusive or hostile work environment. It is the policy of the [Department/Office] that all complaints of discrimination, retaliation or harassment shall be fully documented and promptly and thoroughly investigated. 328.5.1 SUPERVISORY RESOLUTION Members who believe they are experiencing discrimination, harassment or retaliation should be encouraged to inform the individual that his/her behavior is unwelcome, offensive, unprofessional or inappropriate. However, if the member feels uncomfortable or threatened or has difficulty expressing his/her concern, or if this does not resolve the concern, assistance should be sought from a supervisor or manager who is a rank higher than the alleged transgressor. 328.5.2 FORMAL INVESTIGATION If the complaint cannot be satisfactorily resolved through the process described above, a formal investigation will be conducted. The person assigned to investigate the complaint will have full authority to investigate all aspects of the complaint. Investigative authority includes access to records and the cooperation of any members involved. No influence will be used to suppress any complaint and no member will be subject to retaliation or reprisal for filing a complaint, encouraging others to file a complaint or for offering testimony or evidence in any investigation. Formal investigation of the complaint will be confidential to the extent possible and will include, but is not limited to, details of the specific incident, frequency and dates of occurrences and names of any witnesses. Witnesses will be advised regarding the prohibition against retaliation, and that a disciplinary process, up to and including termination, may result if retaliation occurs. Members who believe they have been discriminated against, harassed or retaliated against because of their protected status, are encouraged to follow the chain of command but may also file a complaint directly with the Chief of Police, Personnel and Training Lieutenant or the City Manager. 328.5.3 ALTERNATIVE COMPLAINT PROCESS No provision of this policy shall be construed to prevent any member from seeking legal redress outside the [Department/Office]. Members who believe that they have been harassed, discriminated or retaliated against are entitled to bring complaints of employment discrimination to federal, state and/or local agencies responsible for investigating such allegations. Specific time limitations apply to the filing of such charges. Members are advised that proceeding with complaints under the provisions of this policy does not in any way affect those filing requirements. 328.6 DOCUMENTATION OF COMPLAINTS All complaints or allegations shall be thoroughly documented on forms and in a manner designated by the Chief of Police. The outcome of all reports shall be: Palo Alto Police Department Policy Manual Discriminatory Harassment Copyright Lexipol, LLC 2020/08/26, All Rights Reserved. Published with permission by Palo Alto Police Department Discriminatory Harassment - 5 •Approved by the Chief of Police, the City Manager or the Personnel and Training Lieutenant, depending on the ranks of the involved parties. •Maintained in accordance with the [department/office]'s established records retention schedule. 328.6.1 NOTIFICATION OF DISPOSITION The complainant and/or victim will be notified in writing of the disposition of the investigation and the actions taken to remedy or address the circumstances giving rise to the complaint. 328.7 TRAINING All new members shall be provided with a copy of this policy as part of their orientation. The policy shall be reviewed with each new member. The member shall certify by signing the prescribed form that he/she has been advised of this policy, is aware of and understands its contents and agrees to abide by its provisions during his/her term with the [Department/Office]. All members shall receive annual training on the requirements of this policy and shall certify by signing the prescribed form that they have reviewed the policy, understand its contents and agree that they will continue to abide by its provisions. 328.7.1 SUPERVISOR TRAINING All supervisors shall receive specific training and education regarding sexual harassment, prevention of abusive conduct and harassment based on gender identity, gender expression and sexual orientation within six months of assuming a supervisory position. Refresher training shall be provided every two years thereafter (Government Code § 12950.1; 2 CCR 11024). 328.7.2 TRAINING RECORDS The Personnel and Training Lieutenant shall be responsible for maintaining records of all discriminatory harassment training provided to members. Records shall be retained in accordance with established records retention schedules and for a minimum of two years (2 CCR 11024). 328.8 WORKING CONDITIONS The Administrative Services Division Captain or the authorized designee should be responsible for reviewing facility design and working conditions for discriminatory practices. This person should collaborate with other City employees who are similarly tasked (2 CCR 11034).