Modesto City Council mired in second costly investigation involving city clerk
The Modesto City Council finds itself in another mess.
This one has cost the city more than $39,000 in legal fees so far in an investigation of City Clerk Stephanie Lopez and sparked a revolt by two council members who claim the clerk is being treated unfairly.
The investigation says Lopez emailed documents based on a California Public Records Act request without having them reviewed by the city attorney’s office. The investigation looked at two years’ of emails. Lopez included “unnecessary and unprofessional comments” on a “number of different occasions,” according to the investigation. The comments primarily criticized the city attorney.
The attorney representing Lopez said the seven-member City Council cannot come to a resolution because it is divided over her. “It’s about a completely dysfunctional City Council,” Stockton attorney Mike Dyer said. “... They are basically split in half and engaging in infighting.”
Lopez could sue Modesto.
She filed a complaint in February against the city with the state Department of Fair Employment and Housing, alleging she faces a hostile work environment because of her age (Lopez is 60) and gender. Lopez names Councilman Doug Ridenour, City Manager Joe Lopez (who is not related to the clerk) and former City Attorney Adam Lindgren in the complaint.
“She just wants the harassment to stop,” Dyer said, claiming Ridenour continues to harass the city clerk. “She just wants to do her job that she has done for a long time.” Lopez has worked for Modesto for nearly 20 years and has been city clerk for about a dozen years. Dyer said she would not comment for this story.
The ‘mayor’s girls’
The allegations in the DFEH complaint are essentially the same ones Modesto investigated last year against Ridenour, Lindgren and the city manager. The investigation found no wrongdoing except Ridenour had referred to Lopez and two other female employees as the “mayor’s girls,” but revealed distrust, division and dysfunction at the top levels of city government.
Lopez issued a statement after the city released last year’s investigation in November stating the investigation was politically motivated and retaliation by the city manager and city attorney who saw her as a whistle-blower for sharing concerns and information with the mayor regarding “questionable expenditures, overspending/extension of contracts, purchasing practices, costly legal services, etc.”
Dyer claims Ridenour is seeking revenge against Lopez for that investigation and should not take part in the council’s discussions regarding Lopez. But Ridenour asked for the first investigation after Lopez told him her concerns.
The attorney representing the City Council in the Lopez investigation — Phil Wright with Kronick, Moskovitz, Tiedemann & Girard — wrote in a memo to the council that there is no legal basis that would require Ridenour to excuse himself.
Last year’s investigation cost Modesto $56,074 for outside attorneys, including Wright, according to the city. Deputy City Manager Caluha Barnes reported Sept. 11 that Modesto had spent $39,325 on the city clerk investigation. “The matter is ongoing and the City will likely incur costs for attorneys’ fees until this matter is completed,” Barnes wrote in an email.
So Modesto has spent about $96,000 so far on the two investigations.
This story also features confidential attorney-client documents from Wright to the City Council leaked to The Bee, and Councilwoman Kristi Ah You not following the Brown Act, the state law that governs how local elected bodies conduct their meetings.
City councils are expected to meet in public with agendas that clearly state the meeting’s business. But they can meet in private in closed sessions on some matters, such as when a city faces the threat of being sued. Those sessions are to discuss anticipated litigation, and the agenda does not name who may sue the city. What’s discussed is confidential until there is a resolution, such as a settlement.
Councilwoman questions city’s ethics
Ah You sent a Sept. 1 memo to City Attorney Jose Sanchez questioning that day’s closed session, which was agendized as anticipated litigation. She provided The Bee with a copy of her memo, which spells out the nature of the closed session.
“I must go on record as questioning the legality, honesty and integrity of the process being used to discuss the performance of a Charter Officer and having it noticed to the public as anticipated litigation,” Ah You wrote. “As you know, this matter stems from an investigation involving a City Councilmember, which was concluded.
“Unfortunately, immediately following the conclusion of the investigation, the City Clerk’s email became the focus of a second investigation. I am deeply concerned with the manner in which a long term, dedicated employee has been treated by the City. ... Because of this, I have made the decision to refrain from any further discussions regarding the City Clerk’s performance or employment.”
Ah You and Mayor Ted Brandvold left the Sept. 1 closed session. Brandvold said he could not say much because closed sessions are confidential but said he is concerned that all city employees are treated fairly. The leaked documents state council members were expected to get an update on the settlement talks between Wright and Dyer, the city clerk’s attorney.
The council also met March 10, July 7 and Aug. 5 in closed session under anticipated litigation. Wright wrote in a Sept. 4 memo that is because of the city clerk’s DFEH complaint and her attorney told Wright in March his client could sue the city.
Wright wrote the council instructed him July 7 to enter into settlement talks with the city clerk’s attorney. Wright wrote he had explained as early as March 10 why the meetings were agendized as anticipated litigation and that Brandvold and Ah You had raised questions March 10 and July 7 about Ridenour’s participation.
Wright wrote that while the council had discussed whether discipline might be acceptable based on his investigation, “it was always within the context of what would be a mutually agreeable resolution.” Wright wrote that if a settlement cannot be reached and the council decides to evaluate the city clerk’s job performance or consider disciplining her, the closed sessions would be agendized to reflect that.
Councilman denies allegations
All of this comes about a month before the Nov. 3 election in which Brandvold, Ah You and Ridenour are among the seven candidates running to be Modesto’s next mayor.
Ridenour said there is not much he can say because of the closed sessions. But he denied mistreating the city clerk and questioned the timing of the story coming out so soon before the election. “I don’t know what to tell you about their allegations,” he said. “They are absolutely not true.”
The source for the current investigation is Lindgren, according to Wright’s memo. Lindgren, who is principal in charge of the Sacramento office of Meyers Nave — the law firm the city hired in 2014 for city attorney services — recently stepped down as city attorney for reasons not related to this story. Sanchez, the current city attorney, also is a Meyers Nave attorney.
Wright wrote that in August 2019 Lindgren gave him a copy of an email from the city clerk to City Hall critic Emerson Drake dated July 10, 2019. “It appeared the email was forwarding documents gathered pursuant to Mr. Drake’s Public Records Act (PRA) request prior to their review by the city attorney’s office with the comment ‘we shall see what the final response shall be,’ “ Wright wrote.
Wright wrote that Ah You was concerned the city attorney’s office was retaliating against the city clerk because of her allegations against Lindgren. Wright wrote it appeared the office came across the email in the normal course of business and the email would trouble any city attorney.
Reviewed two years of emails
Wright’s investigation looked at two years of the city clerk’s emails and focused on those to Drake, then Stanislaus County Taxpayers Association president Dave Thomas and a Modesto Bee reporter.
Besides the July 10, 2019, email to Drake, the investigation found at least three times Lopez emailed records to Drake not in response to PRA requests and included “unnecessary and unprofessional comments,” and that she forwarded an email to a reporter regarding the dismissal of an employee and speculated why the employee was let go.
The investigation stated Lopez said she provided records that were public and the requests were verbal (the Public Records Act allows that). She said the “we shall see” comment referred to Lindgren’s adding or removing information before releasing records.
The investigation said in 2018 she emailed Thomas, based on his verbal request, information about a 9 percent water rate increase with this comment: “Utilities is losing money when citizens cut back; they also have lots of projects to pay for ... and salaries (and conferences, bbq’s, food).”
Her other comments to Drake were from July and August 2019 and questioned how much Meyers Nave cost the city, passed on a co-worker’s concern on whether Modesto had violated its municipal code by hiring the law firm without going through a competitive process and complained Lindgren often was not at City Hall.
“She’s expressing a frustration of being unable to do her job because the city attorney is not around,” said Dyer, who is Lopez’s attorney.
This story was originally published September 26, 2020 at 6:00 AM.
