The inexcusable excuses of Metropolitan board members for violating due process
Strategy for violating GM Hagekhalil's right to due process: blame the alleged victims. Tuesday the board will judge the results of a tainted investigation. Part 2
Note: The original subheadline for this story has been slightly revised and the paywall has been removed due to the importance of the rapidly breaking story and for the public good.
On Tuesday at 8:30 a.m., the Metropolitan Water District of Southern California’s Board of Directors will hold a special closed session to review and act on the results of a seven-month investigation into allegations of discrimination and harassment made by Assistant General Manager and CFO Katano Kasaine against General Manager Adel Hagekhalil.
Kasaine sent her 14-page complaint to 11 board members and Metropolitan’s Legal Counsel. A few weeks later, Board Chair Adán Ortega sent the letter to all 38 Metropolitan board members. Days later, the complaint showed up on the website of Politico, a popular America online news magazine.
Leaking the complaint arguably violated confidentiality and due process under California law and Metropolitan’s Admin Code. And it taints the official investigation by creating a court of public opinion in Metropolitan’s already highly politicized atmosphere.
The board placed Hagekhalil on administrative leave pending investigation, which will end tomorrow either with reinstatement or dismissal.
My stories on the investigation have focused on the lack of due process for the accused and the alleged victim, not the validity of the allegations. Denial of due process is also a denial of justice.
Although this is an administrative, not a criminal case, its results could significantly affect Metropolitan’s water management policies, despite Chair Ortega's claim that policy will stay the same whether Hagekhalil is fired or not. The pro Hagekhalil and anti Hagekhalil board members are about equally divided and hold strong philosophical differences regarding water management.
I can't predict the BOD’s verdict for tomorrow (Tuesday, Jan. 21), but Chair Ortega will likely state in his public remarks that the investigation was conducted fairly, thoroughly, and within the Board’s authority under Metropolitan’s Administrative Act and State law.
However, this is not true, as I have previously written and will elaborate on now.
On July 15, Director Barry Pressman, chair the Ethics, Organization, and Personal Committee, sent a Q&A format memo to the Board of Directors to clarify the investigative process and its scope for benefit of directors and the media. Pressman asserted that “the process being used is in accordance with Metropolitan’s Administrative Code” and that, to ensure confidentiality and neutrality, “Metropolitan is taking the extra step of having the investigator recommended and managed by outside counsel representing the Board.”
However, confidentiality had been knowingly violated months earlier by AGM Kasaine and Board Chair Adán Ortega. Additionally, the 'independent investigator' is from the firm of Liebert Cassidy and Whitmore, which has been under contract with Metropolitan for years.
According to the Admin Code, choosing an outside firm is at the Ethics Officer's discretion, not the Board-appointed ad hoc subcommittee. This subcommittee, including Director Pressman (Chair of the Ethics, Organization and Personnel Committee) and Vice Chairs Gail Goldberg and Nancy Subtly (plus two alternates), should not have seen the details of the complaint.
Sidebar: related excerpts from Metropolitan’s Admin Code
Allegations regarding officer or employee conduct in violation of this section (6305) shall be reported to Metropolitan’s Equal Employment Opportunity Investigations staff.
(Section 2416) The Executive Committee shall create an ad hoc subcommittee … to address substantiated findings of violations determined as a result of Equal Employment Opportunity (EEO) investigations for … alleged violations of Section 6305 made against the General Manager, General Counsel, General Auditor, or Ethics Officer.
The EEO Officer shall refer substantiated findings of EEO substantiated findings of EEO investigations to the ad hoc subcommittee to determine recommended appropriate action.
When the General Manager is the party to the complaint [as in the case of AGM Kasaine vs. GM Hagekhalil] or when in the judgement of the EEO Officer hat matter should be handled differently to avoid real or perceived conflicts of interest, or to avoid potential bias or or threats to impartiality, the EEO Officer shall delegate to the Ethics Officer the responsibility to retain an external investigator to conduct a fact-finding EEO investigation pursuant to this section.
(Section 7412. Confidentiality of Investigations)
Investigations by the Ethics Officer shall be confidential to the fullest extent possible.
The ethics officer has the discretion to disclose information related to investigations for significant operational or safety reasons.
The Ethics Officer shall not unnecessarily disclose the identity of the subject of a complaint, except as needed in furtherance of the investigation or otherwise provided by Article 3 of this chapter.
During the investigation, the Ethics Officer shall advise the subject of the investigation, the complainant, and any witnesses of the confidentiality of the investigation.
The procedures implemented by AGM Kasaine, Chair Ortega, and various board members, which bypassed confidentiality and led to a potentially tainted investigation into the accusations against GM Hagekhalil, appear to be premeditated as well as rationalized after the fact.
This conclusion is drawn from Dir. Pressman’s July memo, cited above, and transcripts of two meetings of Metropolitan’s Ethics, Organization, and Personnel Committee (EPOPC), chaired by Director Pressman and attended by Board Chair Ortega, on June 11 and October 8.
About a year ago, Chair Ortega asked the EEO ad hoc committee, with outside counsel (Liebert Cassidy and Whitmore), to draft a proposal for the Board's consideration to move the intake and investigation of senior officials outside of Metropolitan.
[Correction on Jan 23 : the introductory sentence to the following paragraph as been correct as marked in italics.]
At a meeting of the the EPOPC on June 11, 2024, Ortega described the current protocol, as pointed out in the Admin Code: 'We have an intake process for harassment or discrimination accusations that goes to the EEO office, which reports to the general manager. When the general manager is the subject of the investigation, there's a conflict of interest, so it moves to Ethics.'
Chair Ortega explained that when a complaint is 'being punted from department to department,' 'everybody gets to see it.' He noted that this is not unique to this year but added, 'There's been a lot of complaints.'
Under his proposed new system, complaints would go to an intake committee described as 'an outside entity whose responsibilities and duties are outlined in this policy,' instead of the EEO and Ethics Officers.
The intake group would decide if the complaint needs further investigation by an external law firm and recommend interim measures, such as restricting contact between parties or administrative leave, to the ad hoc committee. The group would then report factual findings to the ad hoc committee, which would recommend remedial actions to the board for substantiated harassment or discrimination accusations.
Metropolitan’s Ethics Officer, Abel Salinas, opposed Chair Ortega’s proposal. He explained, “The State Auditor informed us in 2022 that the law requires MWD’s ethics office to operate as an independent entity free from political interference and pressure from high-ranking officials it investigates.”
Salinas noted that the board [under GM Hagekhalil’s direction] had implemented reforms suggested by the State Auditor and required by state law. However, he said, “Today’s proposed draft policy seems to delegate current ethics functions—vetting complaints, conducting investigations, interpreting ethics policies, and making findings—to entities outside the control of the ethics office.”
He expressed concern that the board might be reversing those reforms and undermine “due process for respondents,” compromising independence, objectivity, and fairness.
Confidentiality is not certain at Metropolitan
Does the Metropolitan Water District of Southern California Board of Directors really care about confidentiality in Equal Employment Opportunity (EEO) investigations? Excerpts from the October 8, 2024 meeting of its Ethics, Organization, and Personnel Committee raise strong doubts that they do.
https://mwdh2o.granicus.com/player/clip/11106?view_id=12&redirect=true
A transcript of the committee’s “Item 6a: discussion of additional complaint hotline”with references to confidentiality (i.e. the lack of a guarantee of confidentiality) is below with selected sections in italics and bold font.
The overriding point of the discussion seems to be that, if a complainant doesn’t follow the prescribed reporting procedure, board members are justified if they violate confidentiality themselves.
Therefore, it must follow, since AGM Katano Kasaine first violated GM Adel Hagekhalil’s and her own right to confidentiality, Chair Ortega had every right to make sure that every one of the 38 Metropolitan board members and, by extension, Politico, the online news magazine, new the details of Katano’s 14 page complaint.
Min 5:50:
Chair Pressman: Item, 6. A discussion of additional complaint, hotline for ethics, equal employment, opportunity, and other misconduct allegations involving members of the Board of Directors and executive staff. This flows from prior discussions that we've had on this subject and I believe Mr. Salinas will introduce the item.
[Ethics Officer Abel Salinas presents about the intake hotline for complaints]
Min 11:15
Chair Ortega: Thank you. I want to add to this. you know, after the last few years of various attempts by the Board to deal with complaints against directors and direct reports. You know we've had different iterations. We had a couple of years where we were appointing separate ad hoc committees from members of the Executive Committee to handle investigations.
I think when I assumed office 2 years ago, there were 7 committees or sub or ad hoc committees still in existence. You know there was reform. And now there's 1 ad hoc committee that is charged with looking into those things.
But the real issue is the intake, and it seems that we have at metropolitan a breakdown in the ability of people to believe that when they file a complaint that their confidentiality will be maintained.
And thus, you know the search for this other alternative for reporting such complaints. You know there's another complexity here, too, that I think everybody should be cognizant of.
Editor’s note: Below, it seems that Chair Ortega is rationalizing the glaring breach of confidentiality he already committed against GM Hagekhalil and, technically, AGM Katano Kasaine, and other witnesses, as well.
I get letters, you know, from employees that are going outside of our established procedures to advise us of complaints. And you know to be honest, the confidentiality of letters sent to me are not necessarily--are not--will not necessarily be protected, because there's opinions that in order to have your confidentiality protected, you have to abide by established procedures.
So I think part of the burden of what the ethics officer, and I know the auditor and the general counsel and the general manager in his office have been dealing with, is: How do we create a process that is confidential because it's outside of metropolitan and everything else stays the same.
You know there would be a way of of sorting through the elements of the complaint, making sure that it goes to the proper authority rather than it going from one department to another as they establish that they might have a conflict. and then it allows it to be investigated, and then returned for adjudication to the proper body within Metropolitan. There's some cases that, for example, would go to EEO. There are some cases it would go to the ethics officer. Some cases it would go to the general counsel to figure out, and of course our auditor was sharing with me, whom I greatly respect, that you know there's also a need to be able to intake the issue of fraud, and this could be a portal for that as well.
So I just wanted to thank our ethics officer, our general counsel, our auditor and general manager, for working together in trying to come up with something. And of course, chair pressman, you know, has been very patient in dealing with this all, as we've muddled through bringing a proposal to you. So thank you.
Pressman: Thank thank you. Chair. I let's on make a couple of comments.
My hope was to develop a single intake pathway. This alter what we call the alternative. But after several conversations with Mr. Salinas and Ms. Wisdom, I think at one time Mr. Torres as well, I realized that we could not get rid of the other 2 that we have in place for a number of rules, reasons that are related to rules, requirements of the EEO and in the Ethics office. So that I think the real answer here is to educate our staff as to the importance of following the pathways that are available if they want confidentiality, and I think if we've let it be known in every way possible that you can't guarantee confidentiality if they don't follow the pathway, we've done as much as we can.
On the other hand, there is this, there are now 3 pathways that people can follow. It would be best, in my opinion, if they use the alternative, one, because they often don't know which office is the right office to send it to. And sometimes it needs to go to both offices because there are issues of both ethics and eeo issues. So it's complicated. And, as I discovered from several conversations, and I want to thank of the members of staff who've helped me understand this better.
So the floor is open.
[other comments by directors]
Goldberg: Thank you. I'm not on the committee, but I just have a quick question. How do we make sure that everyone on staff at every level understands that if they do not follow the rules. that their communications are not confidential. How do we make sure that we get out of this quagmire? Do we require training at at every level to make sure that people understand?
Salinas: Yes, thank you, Director Goldberg, that's a great question. And the EEO officer and I have been talking about this idea of collaborating as well as with the general counsel's office and the general auditor to have create one poster. So we're not competing for poster space in the various places throughout the organization. One poster it explains the various options that employees have. so they don't have to guess, and they don't have to read in many different places to figure out where to call on Number one. But we also have mandatory training, and we'll be making sure that we're making it clear to to employees where to file their complaints and and what each office does.
Goldberg: Yeah, I think, at least for me, there's two things they need to understand. The 1st is that this hotline is available, what it's for and how to use it.
But the second thing is to have them be totally understand that if you don't follow the rules, this is not confidential. I mean, we can't protect it, and that's a different issue. So I hope that that we can make that point very clearly to everybody. Thanks.
[Chair Ortega and Salinas discuss their versions of the origin story for this hotline]
Pressman: As to the education issue, I'm not sure who to direct this question to. But can the bargaining units help us in that regard? HR Director Mark Brower: Yeah, I think we wouldn't explore all options to be able to to make sure the work gets up...
Chief EEO Officer Jonaura Wisdom: Director pressman, if I could say something to respond. So EEO’s required to do mandatory training for supervisors separately, with non supervisors. And in those trainings we do stress the mandatory requirement of reporting. and we also added a non mandatory training, what’s kind of like a EEO 101 investigations training. every training that we conduct, we make sure to communicate to them the requirement to report and the importance of reporting EEO issues, whether you're--for non EEO staff. It actually was one of the requirements of the audit as well. So we we try to stress the fact that please report it directly to the appropriate office, so we can address it in the most confidential and prompt way possible.
Pressman: If I, if I could pursue that for a moment. So if an employee goes to their manager and says, XYZ. And it and it it subs. It's a complaint, basically, does the manager. Then tell the employee to go to the EEO or Ethics or the hotline, or does the manager report it?
Wisdom: The manager reports it's part of the requirement as a manager, supervisor. You're required to report it, but they could also tell the employee to go to us, too, but they, the requirement, is for the manager to report it to EEO.
Thank you. You're welcome.
Ortega: You know, Ms Wisdom educated me that it that responsibility accrues to us as well as board members. So if you hear something, you have to say something.