Wednesday, July 19, 2017

Will Alleged Insensitive, Sexist, Cruel, Mocking County Administrator MICHAEL DAVID WANCHICK Be Held Accountable?

Controversial St. Johns County Administrator Michael David Wanchick allegedly:

1. Mocked women for what they ate and how much they weighed, threatening bring in a scale and questioning them for eating individual food items.

2. Mocked women's capabilities.

3. Failed to provide an exit interview process where discrimination concerns can be raised.

4. Failed to provide effective complaint methods for employees, failing to notify them of their rights to file fraud, waste and abuse concerns with the Clerk of Courts and Comptroller, Hunter Conrad.

Wanchick denies making any inappropriate comments. I'm waiting to read all of the witness statements and pertinent documents.

Controversial St. Johns County Attorney Patrick Francis McCormack promptly hired an "independent" Orlando law firm to "investigate," but its report reads more like a defense brief, beginning with its refusing to consider Wanchick's critical remarks about women's weight. The hired gun, whose qualifications for "investigations" are unclear, says ab initio that criticizing employee's weight is not covered by Title VII of the 1964 Civil Rights Act, or state anti-discrimination law. Hint: It's covered by the Americans with Disabilities Act, which forbids discrimination against people on the basis of "perceived disabilities." Mr. Wanchick's alleged rough language appears to invoke ADA. The incurious hired gun's report omits any effort to research other possibilities, like ADA.

The hired gun appears to have narrowed his focus and written a law school term paper. A bad one.

The "independent" investigation report is murky, dismissive and contains erroneous legal conclusions -- it's written by an Orlando firm that defends civil litigation. Not "independent."

This hired gun did not return my phone voicemail message. Meanwhile, a look at its website shows it is a defense firm, defending county governments and corporations, stating its clients are run-of-mine insurance and corporate clients, including the Florida Association of Counties Trust.   Trust me, they're whores -- insurance defense lawyers lacking in soul, wit or experience in "independent" investigations.

Oh, well, PATRICK, thanks for giving it the old UF Law School try.

I am not persuaded by the insensitive account of a hired gun about the insensitive remarks of Mr. Wanchick.  The hired gun is a civil litigation defense firm, whose law firm indicates no expertise in "independent" investigations.  Here it is:

Bell & Roper, P.A. is a civil litigation law firm that is dedicated to providing the highest quality legal representation to its valued clients. The firm was founded in 1996, and its attorneys have extensive trial experience in both federal and state courts throughout Florida. The firm serves as legal counsel for corporate and governmental clients, including national insurers and prominent self-insured companies. Bell & Roper, P.A. routinely represents clients in cases ranging from automobile accidents and premises liability litigation to complex liability, construction defect and medical malpractice claims. The firm has substantial experience with the representation of governmental entities and civil rights, law enforcement, employment and land use claims. We also offer our clients representation and advice with respect to commercial litigation.
Bell & Roper, P.A. is highly respected in the legal community and is AV rated by the Martindale-Hubbell Law Directory, signifying the highest level of legal ability and adherence to the professional standard of conduct, legal ethics, reliability and diligence in its practice.
Our Mission is to serve our clients' interest with integrity and deliver competent, aggressive and effective legal representation through our experience, attention to detail and efficient, zealous advocacy.
Representative Clients

A representative sampling of the firm’s clients includes: ACE Group; Adventist Risk Management; American Express Companies, Inc.; Ameriprise Auto and Home Insurance; Amerisure Insurance; Bliss-McKnight; Brevard County, Florida; Brevard County School Board; Citizens Property Insurance Corporation; Citrus County, Florida; Esurance; Florida Association of Counties Trust; Hartford Insurance Company; Heartland Express, Inc. of Iowa; Housing Authority of the City of Winter Park; ITW Food Equipment Group, Inc.; Marion County, Florida; Metropolitan Property and Casualty Insurance Company; North American Van Lines, Inc.; Osceola County, Florida; Preferred Governmental Insurance Trust; Red Robin International, Inc.; Sedgwick Claims Management Services, Inc.; TASER International, Inc.; The Travelers Companies.

On Wednesday, July 18, 2017, I requested all of the documents on the Bell & Roper "independent' investigation by e-mail.  (Commission Chairman James Johns replied that he had no documents, referring it to "our legal department," which belatedly acknowledged the request at 5:00 PM July 19 with the County's usual trademark bureaucratic unfriendliness.

-----Original Message-----
From: Betty Dixon
To: easlavin
Cc: Regina Ross ; Diane Lehmann
Sent: Wed, Jul 19, 2017 5:00 pm
Subject: Acknowledgement RE: Request No. 2017-343: Bell & Roper. P.A. employment discrimination work for St. Johns County

Dear Mr. Slavin,

I am writing to acknowledge receipt of your public records request.  St. Johns County will determine if it has any records that are responsive to your request.   If any such records are located, we will compile them and redact any exempt material prior to providing them to you.  Should it be determined that the nature or volume of the public records requested requires the extensive use of information technology resources, or extensive clerical or supervisory assistance, or both, then we will first respond with an estimate of the additional charges for the actual costs incurred, and whether a deposit will be required.  In such instance, the records will be compiled only after you approve the charges and the County receives any required deposit.  Payment for the total or remaining costs can be made when the records are available.  If the actual cost is less than your deposit, you will be refunded the balance.

Thank you,
Betty A. Dixon

Legal Services Specialist
Office of County Attorney
500 San Sebastian View
St. Augustine, FL. 32084
Office: 904-209-0817

-----Original Message-----
From: Ed Slavin
To: pmccormack ; bcc1jjohns ; bcc2jsmith ; bcc3pwaldron ; bccd4 ; bcc5hdean
Cc: mroper ; mwanchick ;>
Sent: Tue, Jul 18, 2017 2:58 pm
Subject: Request No. 2017-343: Bell & Roper. P.A. employment discrimination work for St. Johns County

Dear Messrs. Johns, Dean, Smith, Waldron, Morris and McCormack:
1. Please send me the file on Bell & Roper, P.A. employment discrimination law work for St. Johns County re: concerns about pejorative, hateful, mocking, inappropriate, insulting, nasty, sexist, misogynist remarks by St. Johns County Administrator Michael David Wanchick allegedly directed against women and people with disabilities (overweight persons).
2. Please include the engagement letter, contract formation documents, competitive bids/RFPs/RFQs, all interviews, affidavits, statements, invoices and transcripts.
3. Pursuant to F.S. 119.0701, please direct Bell & Roper, P.A. today to turn over all documents to the County to respond to this request.
4. Why wouldn't Mr. Roper consider derisive remarks about overweight employees pursuant to ADA, as amended, as concerning a perceived disability?  
5. Please direct Mr. Roper to reconsider his June 16, 2017 memo to Mr. McCormack omitted ADA and perceived disability, which is an obvious legal inference based upon Mr. Wanchick's alleged threatening to bring in a scale to weigh employees.  
6. Is it now apparent to you --- our County Commissioners and County Attorney --- why St. Johns County Administrator Wanchick has blocked an Inspector General and an Ombuds in St. Johns County for nine (9) years?  
7. Is it time for him to go?  
Thank you.
With kindest regards, I am,
Sincerely yours,
Ed Slavin

Outside law firm investigates complaints against county manager

When St Johns County Commissioner Jeb Smith was contacted separately by two individuals seeking to report complaints that County Administrator Michael Wanchick made inappropriate gender specific comments towards women and derogatory comments offensive to persons in the workplace who might be overweight, he took the information to County Attorney Patrick McCormack.
Attorney Michael J. Roper, partner in Bell & Roper, P.A., conducted the independent employment investigation on behalf of St. Johns County regarding allegations brought forward by a current county employee and a former county employee of workplace harassment and discrimination by Wanchick.
“In essence, the complaints are that certain actions by Wanchick created a hostile work environment for the affected persons working within the Executive Suite at the County Administration Building,” Roper wrote in a June 16th report obtained by Historic City News.
Unlike what we’ve seen from St Johns County Sheriff David Shoar over the past ten-years, McCormack showed the good judgment by immediately forwarding the material to an independent law firm in Orlando to determine the merits of the allegations.
Roper explained that McCormack determined that it would be most appropriate to have the investigation conducted by an outside entity, as opposed to an internal investigation conducted by the County’s Personnel Services Department, in order to avoid any appearance of impropriety or undue influence over the investigation.
Shoar believes that he is capable of investigating himself, and, when outside agencies like the Florida Department of Law Enforcement and Federal Bureau of Investigation, and even a local county court judge become involved, Shoar attempts to influence the outcome of the investigation — even against the advice of his highly paid “executive staff”.
Roper reported that each witness was advised as to the nature of the investigation and the role of the investigator; was asked to be candid and forthright in their interview; was asked not to discuss the substance of their interview with anyone else during the pendency of the investigation; advised as to their protection from retaliation for their participation in the process; and was encouraged to contact me should any new or different pertinent information come to light which had not been discussed in our interview.
“Given the passage of time, inability of witnesses to recall important details, lack of supporting documentation and the stark conflicts in key testimony, it was also difficult for me to resolve many of the key disputed issues of fact,” Roper explained.  “It is certainly understandable that witnesses had difficulty recalling or describing events since some of the incidents are alleged to have occurred more than four years ago, but this does present a challenge to the investigation.”
Roper went on to clarify the law and point out the reasons his investigation was so difficult.
“The law contemplates that employees will promptly report alleged harassment or discrimination to their employer. Early reporting facilitates a more timely and thorough investigation, while a witnesses’ memories are still fresh and also serves to discourage or avoid further harassment,” Roper told McCormack in his report.  “In this case, many witnesses simply had no recollection whatsoever of the alleged events, even after I tried to refresh their memories with the limited detail available to me.”
All told, there are a total of five (5) separate incidents, over a period of more than four years, wherein Wanchick is alleged to have made comments which are characterized by complainants as disparaging, gender specific comments, evidencing Wanchick’s animus towards or intent to discriminate against women. There is one (1) additional incident where Wanchick is alleged to have been present when a comment of that nature was made by a fellow employee, where Wanchick failed to correct or reprimand the employee.
“Ultimately, I determined that it was unnecessary for me to resolve many of the factual disputes in order to reach a reasoned conclusion as to whether there had been a violation of County policy or applicable law,” Roper concluded.  “That is the case because, even if one were to accept the complaints at face value, giving them every benefit of doubt, it is clear that Wanchick’s alleged conduct was not sufficiently egregious or pervasive to amount to a violation of either the law or county policy.”

At the end of his investigation and 24-page report, Roper told McCormack that he was unable to independently substantiate whether Wanchick ever made the disparaging, gender specific workplace comments which both complainants and other witnesses attributed to him.  Therefore, he did offer some recommended future employment actions.
“There are a couple of suggested changes in procedure which the County may wish to consider in addressing certain issues which came to my attention during the investigation,” Roper said.
  1. I believe that additional efforts should have been made by HR to follow up on the “gender” comments during the complainant’s exit interview, in order to gain a better understanding as to the nature and extent of any employment issues to which she was referring, and when she expressed those sentiments. Those follow up efforts and any information revealed by that review should have been specifically documented in order to either rule out an existing employment issue or to facilitate any necessary corrective action. In this instance, HR simply documented that the exiting employee had expressed concern regarding gender issues, but there was no indication that an effort had been made to delve further into that expressed concern or any confirmation that the issue had been investigated further and either confirmed or eliminated as a potential employment issue to be addressed by the County.

  1. The County may wish to consider formally adding an additional avenue by which employees can report harassment under its personnel policies. During my interviews, various witnesses expressed concern that County employees did not have a reasonable avenue to report harassment, if the complaint related to the misconduct of the chief executive or other senior level executive. As noted above, I saw no evidence that any harassment reports involving the chief executive were ignored by the County, but to the extent employees have articulated this perception, it might be worthwhile for the County to consider adoption of another reporting option.

  1. During interviews of certain senior staff members, it was suggested to me that employees had the ability to report workplace harassment through the “Fraud, Waste and Abuse Hotline” administered by the St Johns County, Clerk of the Circuit Court. However, the County’s formal reporting procedure for employees set forth in the above-referenced harassment policy does not describe that avenue of reporting. If the County does intend for this hotline to be a potential avenue of reporting harassment and discrimination, it should be added to the formal personnel procedure.

  1. The County may wish to review its training program to reinforce with employees the importance of promptly addressing or reporting incidents of perceived harassment or inappropriate conduct at the time said conduct occurs, in order to allow for prompt resolution, investigation and , if necessary, remedial action by the County. I have not reviewed nor considered the extent of the County’s training in this regard, and this should not be construed as a criticism of that existing program. Instead, given the amount of time which expired between the alleged misconduct here and any report of same to the County, it is merely a suggestion for a potential point of emphasis in the future.

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