By Amanda Frye and Mark Gutglueck
Without citing cause, the Redlands City Council Tuesday night terminated Nabar Martinez as city manager, a month and a day after placing him on paid administrative leave.
Firing Martinez without cause leaves him eligible to collect a severance package equal to eighteen months of his $350,896.08 annual salary & add-on pay and annual benefits of $78,383.94, which totals $643,920.43, along with a cash buyout of his accumulated perquisites including unused sick leave and vacation time and equipment and vehicle allowances totaling roughly $245,000, such that the city will pay him nearly $890,000 to be rid of him. The council also agreed to continue his medical insurance until he becomes eligible for Medicare coverage.
Had the council elected to invoke cause in firing him, which some believe it could have cited given certain particulars about his actions during the eleven years of his tenure as city manager, it would not have needed to provide him with any of the $643,920.43 severance package. However, given the council’s knowledge that Martinez had kept a “black book” in which he had detailed accounts of closed door and private remarks and statements by the council, variances between public pronouncements by the council and action taken during closed door votes, miscues by council members individually and the council collectively, as well as both illegal and simply embarrassing acts by council members, the body elected to make no declaration of reason for firing Martinez in what all parties understand is an unspoken arrangement to buy mutual silence.
The efficacy of citing cause with regard to Martinez’s sacking was subject to question. The definition of what would constitute cause is relatively narrowly defined in his contract, extending to acts of moral turpitude resulting in conviction of a felony, direct and provable acts of insubordination in which he defied the legal directives of the city council, or the use of alcohol or drugs in a manner that would impact his function as city manager. As Martinez has not been prosecuted for any crime, let alone convicted, and there was no realistic evidence of his having defied the council in any actual sense nor intemperance on his part, citation of cause in terminating him would have been subject to controversion. Nevertheless, city officials had in their possession documentation to show Martinez has continued to accrue unused vacation leave on dates and occasions when he was known to have been absent from City Hall at distant destinations where no business relating to the city was being conducted. By simple definition, the continuing accrual of leave time to which Martinez was not in fact entitled would constitute fraud, which is defined as a felony, and accepting the cash-out of any such leave to which he was not legally entitled that totaled more than $950 would be considered grounds for felony grand theft charges. Without a prosecution and conviction having taken place, however, even if all of the elements of these crimes could be established, Martinez would have grounds to contend the threshold of cause had not been achieved.
The major precipitating factor in Martinez having been put on leave on October 5 and his firing this week arose from sexual harassment accusations leveled at him by the city’s former human resources director, Amy Martin-Hagan, who departed from the city last December and officially left the city payroll in February.
Martin-Hagan, who was then known as Amy Martin, had been hired by Martinez in 2013 to replace the city’s previous human resources director, Deborah Scott-Leistra, after the city found itself in the position of fending off litigation brought by former municipal employees alleging they had encountered untoward workplace conditions and/or had been discriminated and retaliated against or harassed by higher-ups in the city and/or constructively, unjustifiably or wrongfully terminated. Martin-Hagan was able to remedy some of those matters through negotiated settlements, conditional reinstatements or other accommodations. She won kudos both for deriving successful defenses of the city’s action in cases where litigation proceeded and her instituting of hiring procedures that were designed to ensure that the city’s newly acquired workers were a better fit for the circumstances and roles they assumed with the city, thus heading off costly terminations and lawsuits.
Early in her role overseeing the city’s personnel division, Martin-Hagan had accommodated Martinez with regard to his requests of her that went beyond the scope of her employment, in particular assisting him with the preparation and tailoring of his profiles to be submitted to on-line dating sites. According to Martin-Hagan, Martinez’s demands in this regard were continuous and took up a considerable amount of her time at home, often until late in the evening or during weekends as she spent literally hours with him on the phone or in person weekly, during which Martinez insisted upon discussing intimate personal and sexual matters. When the on-line postings to the dating sites failed to produce the results that Martinez, who is now 71, hoped would satisfy his predilection for petite women in their thirties and forties, he grew ever more demanding that Martin-Hagman further fine-tune his approach. Ultimately, after some four years, Martin-Hagan’s resentment of the circumstance boiled over and she refused to assist him any further in the preparation of his on-line dating profiles or indulge him in his sexually-laced conversations. There ensued from Martinez, according to Martin-Hagan, a series of eruptions of extremely offensive insults and vulgarisms, punctuated with threats that her then-ongoing efforts in representing the city in its collective bargaining sessions with the police officers’ and firefighters’ unions were inadequate and were on the brink of convincing the city council to insist upon her firing.
By November of last year, Martin-Hagan made clear to the city’s upper administrative and managerial echelon that she was intent on leaving the city. Despite Martinez’s representations to the contrary, the council initiated an effort, carried out by City Attorney Dan McHugh, to convince her to reconsider and remain in place as Redlands’ head of human resources. Martin-Hagan, however, disclosed to McHugh the nature of the harassment she had endured from Martinez and reiterated her intention of leaving the city’s employ. Thereafter, McHugh’s effort to convince her to remain with the city transitioned to negotiations over her exit and what sort of severance would be conferred upon her. Ultimately, Martin-Hagan and McHugh hammered out a document titled “Settlement Agreement And Mutual General Release.” That document specified that Martin-Hagan would be provided with a cash settlement of $133,981.25, derived from providing her with six months’ severance pay in the amount of $84,500 along with a $49,481.25 cash conversion of her accumulated 609 hours of vacation, illness and administrative break leave. According to language in the settlement agreement, the $133,981.25 was being tendered to her “in full satisfaction of all claims, known or unknown, asserted or non-asserted, and alleged wages due and owing to” her, with the understanding “that the payment is made to fully compromise and release employee’s claim against employer, including any employee’s attorneys’ fees and costs.” The settlement agreement further called for the city putting $4,505 into Martin-Hagan’s employee retirement account and it contained a provision which stated, “Employee shall be entitled to a ‘medical bridge’ program for herself upon separation from the city until she becomes Medicare-eligible. ‘Medical bridge’ is defined as employee-only coverage at the least expensive equivalent health, vision, and dental insurance plan as provided by employer to its then existing directors through the California Public Employee Retirement System medical plan until employee reaches the age of Medicare eligibility, at which time the benefit will cease.”
On January 5, 2018, both Martinez and Martin-Hagan signed the agreement. On the same day, Martin-Hagan submitted a voluntary resignation letter, attributing her departure to “family health issues.” Martin-Hagan departed Redlands shortly thereafter, having landed the position of human resources administrator across the California border with the Southern Nevada Health District.
The Southern Nevada Health District provided Martin-Hagan, who at that point was no longer going by Amy Martin but rather was professionally know as Amy Hagan, with health insurance. The Southern Nevada Health District’s employee health plan, however, did not include dental coverage. Accordingly, Martin-Hagan sought to invoke the medical bridge provision of her settlement agreement with Redlands to obtain dental care insurance. The coverage she selected cost $95 per month. Redlands, however, citing the phrase “the least expensive equivalent” contained in the agreement, provided her with $13 toward the monthly payment, which the city said was its cost for basic dental coverage per employee based upon purchasing dental insurance in bulk. It was over this $82 per month difference that Martin-Hagan claims that she and the city collectively slid into a much more serious dispute. Over the course of several months, Martin-Hagan said she endeavored to have the city simply cover her $95 monthly dental insurance bill. The city consistently rebuffed those efforts, offering no more than $13. Unwilling to accept the city’s interpretation of the medical bridge clause, Hagan-Martin on June 25 sent the city a demand letter which threatened the filing of a lawsuit for breach of contract. In reaction to the demand letter, the city council scheduled a closed door discussion of the matter, describing it as pertaining to potential litigation.
According to Howard Golds, an attorney representing the city, at that point Martin-Hagan’s demand had gone well beyond seeking the $82 more per month than the $13 the city was willing to provide her for the dental coverage. Golds said Martin-Hagan wanted “$1,955 within ten days” and the city to “agree to her interpretation of the medical bridge, and pay her more on a monthly basis than the agreement required.” It was at that time, according to Golds, that Martin-Hagan for the first time alleged that she “was treated differently as a woman and asked to complete personal tasks for the city manager that [were] demeaning, inappropriate and against the law.” According to the city, Martin-Hagan had purposefully misinterpreted both the rationale for and the meaning of the term “medical bridge.” Potentially, Golds implied, the manner in which the 41-year-old Martin-Hagan was interpreting that provision of her departure agreement would cost Redlands taxpayers approaching half of a million dollars to provide her with full medical coverage until she reaches retirement age, i.e., 65.
Golds maintains that Martin-Hagan attempted to file suit in Nevada against the City of Redlands in July but was informed that the suit had to be filed in California and so she instead sent an email to McHugh on July 9, 2018, seeking a pay-out from the city of $125,000. According to Golds, it was in that email, that “she alleged for the first time that she resigned due to gender discrimination. She also sent text messages to the mayor of Redlands and a councilmember on the same day, wherein she for the first time alleged the specific details of the purported gender discrimination and sexual harassment,” Golds said, providing “the allegations for the mayor and councilmember to consider as ‘background’ to her $125,000 demand for her claimed medical bridge benefits.”
Martin-Hagan insists that she had informed the city of Martinez’s treatment of her long before that, in the fall of 2017, when she announced her intention of leaving the city’s employ. It was in an effort to keep her from proceeding with a sexual harassment suit against the city and Martinez at that time which induced the city to provide her with the termination settlement, she said, since the city was not obliged to furnish her with one upon her voluntary resignation from the city.
Martin-Hagan did not file a lawsuit, either for breach of contract or on her claim of sexual harassment, discrimination, retaliation or constructive termination, but did lodge a charge of discrimination against the City of Redlands with the U.S. Equal Employment Opportunity Commission in Las Vegas. In the face of that proceeding, the city and Martinez put on a brave public face. It was deemed advisable, however, given the degree to which McHugh had been a participant in the issues relating to Martin-Hagan’s allegations, to bring in a different attorney to represent the city through the process before the Equal Employment Opportunity Commission. The city turned to the law firm of Best Best & Krieger, which employs Golds, whose line of expertise includes labor & employment, labor & employment litigation and public agency labor & employment. In the course of preparing for defending the city, Best Best & Krieger and Golds carried out an investigation of the relevant issues Golds anticipates he will encounter. That investigation turned up information relating to Martinez that was “highly problematic” in the words of one city official. Accordingly, on October 5, the city council elected to place him on paid administrative leave. It then elevated Martinez’s second-in-command, Janice McConnell, to serve as interim city manager.
Five days after his suspension, Martinez, having consulted with the Woodland Hills-based law firm of Goldberg & Gage, had filed on his behalf a Department of Fair Employment and Housing complaint against the City of Redlands. In that complaint, dated, October 10 and worded by Terry Goldberg and verified by Martinez, it is alleged that the City of Redlands took “adverse actions” against Martinez, which included his being “harassed against because of complainant’s ancestry, national origin [and] age” and that he “was discriminated against because of complainant’s ancestry, national origin [and] age, and as a result of the discrimination was asked impermissible non-job-related questions, denied employment benefit or privilege [and] denied work opportunities or assignments.” The complaint further alleged Martinez “experienced retaliation because complainant reported or resisted any form of discrimination or harassment, participated as a witness in a discrimination or harassment claim and as a result was asked impermissible non-job-related questions [and] denied employment benefit or privilege.”
If Martinez had any vestige of a chance of being reinstated as city manager, the filing of that complaint sealed his fate. On Tuesday of this week, after the matter had been percolating for more than three weeks and the same day that the three incumbent members of the city council on the ballot in this year’s municipal election – Councilwoman Toni Momberger, Councilman Paul Barich and Mayor Paul Foster – were retained by Redlands voters by comfortable margins over their competitors, the city council voted unanimously in closed session to cashier Martinez.
By Amanda Frye and Mark Gutglueck