The Coastal Star

Highland Beach: Judge: Manager was too harsh with clerk

By Steve Plunkett

The Case of the Controversial Emails is over.
A hearing officer reviewed racist jokes Highland Beach Town Clerk Beverly Brown forwarded on her official email at work and sided with her lawyer and Town Attorney Tom Sliney, saying a proposed one-month suspension without pay was “draconian.”
“I am absolutely reversing the punishment and supporting the finding that some punishment is necessary,”  said hearing officer Kenneth Stern, a recently retired Palm Beach County circuit judge.
“But I feel that given all the facts and the history of this lady, a relatively minor offense is involved, a reprimand, a written reprimand in the file for one year is more than adequate certainly,” Stern said.
Watching Stern, Sliney, Brown and Brown’s attorney go over the case at Stern’s office in late April were former Mayor Jim Newill, Public Works Director Jack Lee, who took a half-day of vacation to support his co-worker, and nine others from Highland Beach.
The controversy appeared to have begun July 15 when Brown by mistake forwarded a joke to Town Manager Dale Sugerman, her supervisor. The email praised Canadians for being not politically correct atop a collection of non-PC billboards.
Sugerman investigated and found offensive jokes, including one using the N-word and alluding to President Obama. Town policy forbids employees to send or receive defamatory materials at work.
Sugerman decided to suspend Brown for a month, but she had 10 days to appeal.
The Town Commission intervened and told Sugerman to give Brown a written reprimand instead. Sugerman argued he could not do that until a hearing officer reviewed the appeal; the commission suspended him with pay for five months.
Tensions began earlier
Brown’s attorney, Erika Deutsch Rotbart, told Stern during the hearing tensions between the clerk and Sugerman started months before the billboard email was sent and involved unflattering rumors at Town Hall.
“After it came to the town manager’s attention that there was some form of gossip about a particular employee [and him]... his attitude toward Beverly changed,” Rotbart said. “Her (Brown’s) performance evaluation was not nearly as good as it had been previously.”
In a rebuttal to the evaluation, Rotbart said Brown insisted she was not involved in the rumors: “You stated that someone on the commission told you that I was dispersing gossip to them,” Brown wrote. “In order to clear my name, I contacted legal advice to see if there was any way to take a sworn deposition from the commissioner as this is an untrue statement.”
Shortly after Brown responded to the evaluation, the email probe began, Rotbart said.
“She felt as though he was finding any excuse and using this email — good, bad or otherwise — this email as something to try and, if you will, kind of hang her with,” Rotbart said.
Rotbart complained that Sugerman did not mention the rumors or the issue of possible retaliation in his official investigation, and she noted Brown had immediately told friends to send jokes to her personal email account.
“So she is reacting to the fact that, whoops, she got caught,”  Stern said before telling Rotbart to focus on whether what the town manager did was unduly harsh.
Rotbart said it was.
“It wasn’t that we were saying, ‘Oh, she didn’t do this,’ “  Rotbart said. “She was apologetic, she understood the concern, she put people on notice not to do it. And, as far as we were concerned, either a verbal or written reprimand under the circumstances was more than appropriate.”

Did punishment fit the offense?
Sliney agreed the issue was whether the punishment fit the crime and said they also had to determine the best way to resolve the case.
“This matter has actually been probably one of the most difficult matters that I have been involved with since I have been the town attorney, which I have been for a long time,”  Sliney said. “The matter has really put a pall over the town and it basically has divided many people in town.”
Sliney said he had given Stern Sugerman’s predetermination report, copies of Brown’s emails  and an excerpt of the Jan. 4 commission meeting regarding the suspension. He noted the motion directing Sugerman to rescind the suspension passed unanimously, but left out the later vote to suspend him was 3-2.
“The best resolution of this matter is to follow that [unanimous] recommendation and to have a written reprimand placed in the town clerk’s file to resolve this matter and end it for once and for all,” Sliney concluded.
“Do you agree with that?”  Stern asked Brown’s attorney.
“We do,” Rotbart replied.
“Well, so do I,” Stern said.

Positive evaluations
The retired judge said Sugerman’s previous evaluations of Brown called her a “self-starter” who had chosen to institute things without being asked and had improved the town’s record-keeping, record retention and search capability.
“One of the things that struck me,” Stern continued, “was the very big concern that the Town Commission had for Ms. Brown and an appreciation for what they obviously feel is her very fine work,… but also to the fact that she is undergoing right now treatment for a serious illness. …
“They made a big point, and one that should be made, that stress imposed on Ms. Brown, severe stress, could undermine the treatment,”  Stern said.
He cited cases in which other judges ruled that even traditional punishments could be considered cruel and unusual when a prisoner’s health changed.
Stern also said the emails were inappropriate but tempered his critique.
“We can disagree with ethnic stereotypes but when we see a joke that invokes those, sometimes the joke is so darn funny that we laugh and then regret the fact that we laughed because we know the stereotype is not true or not fair,” he said. “I suspect that that’s the case with Ms. Brown with the kind of history she has placed on the record here as a very conscientious person.”
The conference room in Boca Raton erupted in applause when Stern announced his ruling.
“I’m glad it’s over with. It was an embarrassment,” Brown said afterward.
Newill, whose wife accompanied Brown to breast cancer treatments and who lost his re-election bid after Bernard Featherman made the email controversy a campaign issue, said he had no comment.
Stern, who admitted to Brown he had laughed at the Canadian billboard jokes, told her she is “obviously a fine employee. They’re lucky to have you.”

Expenses continue to grow
While Stern’s decision ends the case, bills continue to mount. Stern’s hourly rate was $375. Highland Beach also has retained Robert Critton Jr., a West Palm Beach labor attorney, to review its contract with Sugerman at rates of up to $400 an hour.
Brown said she had not decided whether to ask Highland Beach to pay her attorney’s fees.
Town commissioners sent Sugerman his annual evaluation in February but did not discuss it in public as they have in years past. In March they gave him no raise.
Sugerman’s contract runs until June 30. Commissioners advised him they would not renew his contract and decided at their May meeting to have Featherman and Sliney negotiate a full contract with Kathleen Dailey Weiser. Weiser has been interim town manager since Feb. 22, is paid $6,000 a month and has no benefits other than a car allowance.
Sugerman is collecting $11,667 a month and has a leased Highland Beach car during his suspension.
Commissioner Dennis Sheridan said employee morale under Weiser “is extremely better than it was months ago.’’
Also in employment limbo is Cale Curtis, the town’s deputy finance director. Sugerman last summer planned to hire a finance director, noting that town policy was to promote from within, and delete the deputy position.
Commissioners later told him not to hire department heads until he and they worked out a contract
extension.                                          

      

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