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FPUD board formally admonishes McPhee
Thursday, April 4th, 2013
Issue 14, Volume 17.
FPUD general manager Brian Brady explained the possible ramifications for McPhee due to the resolution.
"If a board member keeps doing [these actions], it allows for recourse, sanctions which could include a board member not being allowed to go to conferences at district expense, not getting meeting fees for attending board meetings, and so on," said Brady. "The board member can’t be removed from their seat by the board. The only way that can be done is through a public vote."
Documents reflect that the board’s personnel committee met Feb. 6 to "investigate possible violations of the district’s ethics policy and the Brown Act by Director McPhee." A memorandum distributed after that, stated that "after review of the evidence presented, the personnel committee recommended adopting a resolution admonishing Director McPhee for violations of the District’s Ethics Policy and the Brown Act by disclosing confidential Closed Session information."
In a telephone interview, McPhee said the information involved Brady’s resume. McPhee claims the document was available on and submitted through the Internet. (When this newspaper checked, it appeared summaries of Brady’s accomplishments and experience are available on the Internet, although the exact document in question may be different). The resume was also contained within a booklet of resumes a recruiting firm had compiled for the board when a new general manager was being sought. Brady was ultimately hired for the position.
"They claimed I was supposed to turn the booklet back in, but they never asked for it, and it was never presented as confidential," said McPhee.
McPhee was also chastised for sending a correspondence to an FPUD employee that reportedly contained confidential information discussed in Closed Session.
The correspondence, McPhee said, was the result of a communication initiated by the employee.
"They bullying tactics and misrepresentations must stop," said McPhee. "I was contacted first and I have the right to reply to the original contact person. I also have the right to reply to the bullying tactics of any employee of FPUD and that is exactly what I did to stop this bullying by other FPUD directors and also by the bullying by some employees of FPUD."
The matter was placed on the agenda of the Feb. 25 board meeting, but postponed to March 25, "to allow Director McPhee to gather, submit, and present evidence and testimony in his behalf."
The resulting resolution (No. 4784) stated, "Director McPhee authored letters and emails to FPUD staff dated December 18, 2012, January 8, 2013, and January 24, 2013, which, in part, disclosed confidential closed session information… the letters and emails were reviewed by both the FPUD personnel committee and FPUD general manager at the Jan. 7, 2013 meeting of the committee and were found to be inappropriate and disruptive communications with the district staff." It was also stated that McPhee "contacted staff directly and bypassed communication with the general manager when requesting information."
Essentially, the District’s Ethics Policy provides general guidelines and specific prohibitions that elected District officials must conform to while conducting their assigned duties and responsibilities. The Brown Act prohibits disclosure of Closed Session matters to any person other than fellow board members, the general manager, or the general manager’s designee to handle confidential District business. A majority vote of the board can also make it possible to release Closed Session information.
Brady said in his experience it is not unique for a relatively new board to not understand appropriate protocol.
"When board members are first elected, it’s pretty important that staff and general counsel go through an orientation process with them so they understand the difference between governing and managing the operation," he said. "It is very common for new directors to want to get into all the detail and try and help manage the enterprise."
After a board member is advised of an error in these restrictions, it can become a serious issue.
"If the board member chooses to ignore that advice, and decides on their own that this is the way they want to operate, you really have to take a formal action to impress upon the board member that this is not right," Brady said. "In this case, the [FPUD] board also referred to the Brown Act, so they are, in essence, putting Archie McPhee on notice, for violating both the Brown Act and FPUD Ethics Policy."
The approved resolution stated, "Director McPhee is directed to communicate with district staff only through the FPUD general manager’s office."
McPhee also claimed there was not an official vote called for on the matter at the meeting, although a motion was made and seconded.
"After it was seconded, I was allowed to present my rebuttal, which I did, but they weren’t interested in it," he said. "After I finished, a vote was never taken and I stayed until the meeting was adjourned."
When asked to summarize McPhee’s rebuttal, Brady said, "His response was that he felt the information was not confidential and that the board was not in Closed Session when it was discussed. He was wrong in the facts."
To date, the matter has not resulted in any financial loss to the district.
"Not at this time," said Brady. "One who could seek redress has not requested anything."
McPhee has alluded that he intends to have the matter heard legally. He is in his second year on the board with his term active until 2014.
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