HomeMy WebLinkAbout07-09-20 Board Minutes 1
MINUTES OF THE SPECIAL BOARD MEETING OF THE BOARD OF DIRECTORS OTAY WATER DISTRICT
July 9, 2020
1. President Croucher called the meeting to order at 3:00 p.m. 2. ROLL CALL
Directors Present: Croucher, Gastelum (arrived at 3:12 p.m.), Robak, Smith and Thompson Staff Present: General Manager Jose Martinez, General Counsel Dan
Shinoff, General Counsel Jeanne Blumenfeld, Chief Financial
Officer Joe Beachem, Chief of Operations Pedro Porras, Chief of Engineering Rod Posada, Chief of Administration and Information Technology Adolfo Segura, District Secretary Susan Cruz and others per attached list.
3. PLEDGE OF ALLEGIANCE 4. APPROVAL OF AGENDA
President Croucher indicated that prior to the board approving the agenda, he
would like to briefly clarify the reason for today’s meeting. He stated that the board is responding to comments from the public and employees of the District to the messages posted by Director Gastelum on social media. President Croucher said that the comments were hurtful, unacceptable, and inconsistent with the values of
the District. He stated that, as the Board President, he felt that the District should
address the comments as quickly as possible as he was concerned there would be a mistaken impression that the District’s Board of Directors has a tolerance for racism. He explained that the District has received hundreds of comments through various social media posts and phone calls and, because of the community’s
engagement, the board wished to act immediately and respond to its constituents.
A motion was made by Director Smith, seconded by Director Thompson and carried with the following vote:
Ayes: Directors Croucher, Robak, Smith and Thompson
Noes: None Abstain: None Absent: Director Gastelum
to approve the agenda.
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5. DIRECTORS COMMENTS Director Thompson stated that there is history of a similar situation where the Board adopted a Resolution to censure Director Gastelum. He shared that Directors, as
elected officials, represent their community and how they present themselves to
constituents, vendors, employees, etc. demonstrates the organization’s values to the community. He stated that he wished to share, as a board member, his view to counter some of the impressions that the community may have of the Otay WD. He indicated that he, as a director, and the Otay WD is about fairness, treating
individuals equitably, showing respect to everyone at all times, being inclusive, and
doing the best job that we, as a District, can do. Director Thompson stated that Director Gastelum’s comments affected him greatly as he has African American members in his family and he understands how the comments have affected others because of his own experience. He indicated that he wished Director Gastelum to
understand how his comments impacts people and that showing respect to
everyone is important. Director Smith stated that the Otay WD has policies that address ethics, racism and discrimination. In 2017, the board censured Director Gastelum for a similar issue
that we are addressing today. He shared that as an educator (he is a professor at
San Diego State University), he feels that we need more education on racism in our society as people are afraid of or hate what they do not understand. He stated that he recently noted the approval and appointment of the first African American chancellor for the University of California system and he felt that such events will go
a long way to address these issues. He stated that he feels that Otay WD and its
staff is uniquely positioned to be a leader in the area of diversity and inclusion as the employees are from all backgrounds. He stated that he feels that our diverse experiences makes our District better and allows for an efficient and well-run organization.
Director Robak indicated that he also recalls the 2017 situation. He stated that the District is multi-cultural as is the Country and we do not single any particular group out. He shared that it hits close to home with him, as well, because he has two African American daughters and, at 14 and 16 years old, they are acutely aware of
things happening around them and we have had conversations with them about
situations like this. He indicated that obviously we need to be sensitive to it and we need to recognize that as a Country we have a long way to go in terms of a level playing field. He stated it is extremely unfortunate and, as an organization, he concurs that we do not tolerate such comments, we do not support such beliefs,
and certainly we want our customers and the public to know that as well.
Director Gastelum indicated that he wished to hear the comments from the public and the closed session discussion before he makes his comments.
President Croucher indicated that he felt that it is unfortunate that the District must
address this situation. He stated that the true focus as the Board of Directors of the District should be on water policies, procedures, availability, quality and affordability for the citizens they represent. He stated he did not want anyone, including
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employees, to think that the District has taken this situation lightly. He wanted to
assure the community that the comments do not represent the District, its employees, and its values. The District’s General Counsel Dan Shinoff reviewed the State statutes that apply to
this situation. He stated that if an employee engages in conduct that creates a
hostile work environment because of discriminatory comments or activity, as an employer the District has an absolute right to take disciplinary action in any form or fashion that it believes is appropriate. Sometimes failure to do so can result in responsibility for the employer themselves. However, the situation is very different
for elected officials. Elected officials have been selected by the members of their
community to represent them. When it comes to taking action on an elected official, the board’s options are limited. One option that is available to the board is to “sunshine” the issue for the public and utilize what is termed a “censure”. It is not something that is identified in case law, but simply an obligation that the board may
have, if it so chooses, to publicly state its objection to any particular behavior. The
board, by law, does not have the ability to remove someone from the board, even in these circumstances. 6. PUBLIC PARTICIPATION – OPPORTUNITY FOR MEMBERS OF THE PUBLIC TO
SPEAK TO THE BOARD ON ANY SUBJECT MATTER WITHIN THE BOARD'S
JURISDICTION BUT NOT AN ITEM ON TODAY'S AGENDA Mr. Edgar Hopida of Chula Vista commended the board in April 2017 for censuring Director Gastelum for similar online behavior and removing him from his committee
assignments. In January 2019, seeing improvement in Director Gastelum’s
behavior, the board assigned Director Gastelum to a board committee. Mr. Hopida stated that he had hoped that after the consequence and derogatory media attention Director Gastelum received in 2017, that it would have changed his divisive behavior on social media, but it has not. He indicated that elected officials
should not promote intolerance and racism and should, instead, be a source of unity
in a diverse community. He asked the Otay WD board to hold Director Gastelum accountable for his unacceptable behavior on social media. Mr. Art Pacheco of Chula Vista stated the Otay WD board came to his attention
through comments Director Gastelum posted on social media. He indicated he felt
a water board, by its nature, should be unifying as water, by its nature, does not see color and its pH is neutral. He stated the media posts are very derogatory and distracting and it saddened him to hear that this is not the first time that this has occurred and he hoped that the board will move forward with censoring Director
Gastelum. He stated that Director Gastelum’s thoughts are not representative of
this community and that his attention, as a water board member, should be on water quality and fairness amongst the citizens of the community.
7. CLOSED SESSION
The board convened to closed session at 3:26 p.m. to discuss the following matter:
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a) CONFERENCE WITH LEGAL COUNSEL – POTENTIAL LITIGATION
[GOVERNMENT CODE §54956.9] EMPLOYMENT MATTERS
The board reconvened from closed session at 3:37 p.m. and General Counsel Dan
Shinoff stated that the board took no reportable actions in closed session. 8. ADOPT RESOLUTION NO. 4385 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE OTAY WATER DISTRICT TO CENSURE DIRECTOR
HECTOR GASTELUM FOR OFFICIAL MISCONDUCT (Presented by Directors
Croucher and Robak) General Counsel Shinoff read proposed Resolution No. 4385, in its entirety, into the record (copy of Resolution No. 4385 is attached).
A motion was made by Director Robak, seconded by Director Smith to adopt Resolution No. 4385. President Croucher asked Director Gastelum if he wished to make any comments.
Director Gastelum stated that he wished to apologize for the tone, frustration, and
aggression of his social media post. He indicated that he has heard that aggression brings aggression and that his comments do not reflect the example of Reverend Martin Luther King, Jr. He explained that while he was growing up in Mexico, he always looked up to America and when he first came to study at Southwestern
College and San Diego State University, he always felt that there was tremendous
hostility towards white Christian men and he never understood it. During his studies at Southwestern College, he took an African American history class which he liked to call American history. He stated the injustices that his African American brothers and sisters experienced opened his eyes and broke his heart.
He stated that his frustration with the Black Lives Matters protest is that the protests have caused the death of 26 people (22 by gunshot). For him this is so frustrating and is the reason he posted the comment. He stated he removed his comments within 45 minutes after he posted it because he realized it did not explain properly
what he wanted to say. He changed his post to, “The left always wants to attack
America because it was founded by white Christian men who believe that all men are created equal, because they mentioned ‘God’ four (4) times in the Declaration of Independence, and because they love capitalism, limited government, and God given rights, etc. HappyIndependenceDay”.
He stated in the world we live in today, a screen shot can be taken and the post lasts forever and for the rest of his life he will atone for that mistake. He stated that he will make it his life’s commitment that his actions will speak louder than the mistaken “screenshot”. He shared that because of his understanding and love for
his black brothers and sisters, he has been involved with tremendous organizations
like Content of Character Series which affirms the value and dignity of black America. He stated when he ran for mayor for the city of Chula Vista, he was very committed to eradicate Planned Parenthood in Chula Vista because of the racists
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and eugenics beginnings of the organization. He indicated the issue is non-
negotiable for him and is the reason he is prolife and volunteers for 40 Days for Life. Director Gastelum stated that he remembers former President Ronald Reagan indicating that immigrants keep, and will always keep, America fresh. The Otay WD
is blessed by this diversity and is the most efficient water agency in San Diego
County. He noted the fact that the District is the third lowest cost water agency, though it buys/imports all its water supplies, and he feels this is due to the diversity of its employees. Its employees come from different backgrounds and they find solutions to challenges in different ways. He indicated that he apologizes to the
employees of the District and to those he has offended and stated he wished he
had not posted those comments. He indicated that it is not conduct he is proud of and is the reason he quickly took it down and changed his comments to how he would have liked it to read initially. He stated that he made a mistake and it is something that he is going to wear and take responsibility for and he will make it his
life’s mission to be judged by his actions. He stated that, again, he would like to
apologize. Director Thompson indicated that he only heard the last half of Director Gastelum’s comments as he was having technical difficulties with his tablet. He stated that he
has had his issues with Director Gastelum’s previous public comments and that he
always tries to seek what is behind people’s actions and many times it is difficult to understand. He stated that he has found Director Gastelum’s humanity in various ways during the course of time. He indicated that he does feel that the proposed resolution is appropriate at this time and he supports removing Director Gastelum
from his committee assignments. He stated that the comments made by Director
Gastelum are not appropriate from anyone who is representing an organization in a leadership role as they are in a position of influence. He stated that he hopes that this becomes another learning moment in Director Gastlum’s life and indicated that he appreciates President Croucher bringing this issue forward and he would like to
leave it to the president to decide if Director Gastelum should be removed from his
committee assignments. Director Thompson added that he did not know how long Director Gastelum will be on the board as we have an election coming in the fall and he feels that bad behavior has consequences and good behavior has consequences, but he never says never.
Director Smith indicated that he would like to restate the three points he made at the beginning of the meeting. He stated that a similar issue occurred in 2017 and Director Gastelum, at that time, did not acknowledge his mistake or apologize. He noted that he recognizes that Director Gastelum acknowledged and apologized
today and that he has shown some growth. He stated that he still supports the
motion for censorship because he feels that Director Gastelum’s actions were serious enough to warrant the consequence. He stated with regard to education, he was surprised and saddened that Director Gastelum attended a semester long class in African American Studies and still made these comments. He noted it points to
the fact that we need more education over a longer period of time to help us
understand what others are going through. He stated that he feels this is an opportunity for this organization to grow, show that, with diverse backgrounds, we
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can be a more efficient organization, and he would like to think that they would stick
together at this time. President Croucher noted in proposed Resolution No. 4385 in the middle of page 2, it indicates, “Whereas, in July 2020, Director Hector Gastlum…,” it should have
stated “June/July 2020”. He asked Director Robak and Director Smith if they accept
this change in their motion and second respectively. Both Directors Robak and Smith acknowledged and accepted the change. President Croucher indicated that a public speaker who spoke earlier in the meeting
wished to make additional comments and he will be allowing the speaker to make
additional comments at the president’s prerogative. Mr. Art Pecheco stated he wished to respond to Director Gastelum’s comments. He indicated that the issue we have as a community is his use of the water board as a political platform. As a County, the issue is we don’t have these political conversations. He stated that he
is open to an intellectual conversation with Director Gastelum about learning, history
and the conquests that have occurred. He would also like to include some of his friends so Director Gastelum can hear their point of view. He stated that, as a community, we should have these conversations and Director Gastelum needs to understand why a lot of his comments are hurtful. Director Gastelum, as an elected
official who is supposed to represent the community he serves, should also
understand he has a greater impact because of his position. President Croucher encouraged Director Gastelum to meet with Mssrs. Pecheco and Hopida. He shared that Mr. Pecheco is a resident of his division and it would
be positive for him to meet his constituents. He additionally stated that he does
intend to remove Director Gastelum from his committee assignments and he would be speaking with the members of the board about taking additional assignments. President Croucher further indicated that the Otay WD cannot allow a perception to
exist without addressing it. He stated that the District received over a hundred
comments through phone calls, emails, social media, etc., and he did not want the issue growing in the community. He indicated that he felt that it was important to address the issue immediately and to share with the community the Otay WD’s values and to represent to the employees what is acceptable and not acceptable.
He stated to Director Gastelum that he appreciated his comments.
The board voted on the adoption of Resolution No. 4385 as motioned earlier in the meeting by Director Robak and seconded by Director Smith. The motion carried with the following vote:
Ayes: Directors Croucher, Robak, Smith and Thompson Noes: None Abstain: Director Gastelum Absent: None
President Croucher indicated that he appreciated the input from the public and thanked the employees for allowing the board to appropriately represent the Otay WD. He stated that he looks forward to a future where the District can continue to
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focus on water availability, quality, and affordability. He noted the fact that the
District remains as the third lowest water rate within the County which demonstrates where the District’s focus has been. He stated that he hoped that Director Gastelum and Mssrs. Hopida and Pacheco will have an opportunity to meet and have a discussion on this issue which will provide for growth and understanding.
Director Gastelum indicated he was open to doing so and would look forward to
receiving their contact information. 9. ADJOURNMENT
With no further business to come before the board, President Croucher adjourned
the meeting at 4:11 p.m. ___________________________________
President
ATTEST:
District Secretary
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RESOLUTION NO. 4385 RESOLUTION OF THE BOARD OF DIRECTORS OF THE OTAY WATER DISTRICT TO CENSURE DIRECTOR HECTOR GASTELUM FOR OFFICIAL MISCONDUCT
WHEREAS, the Otay Water District (“District”) recognizes
that it serves constituents of diverse backgrounds; and
WHEREAS, acceptance of diversity in terms of race,
ethnicity, religion, culture, gender, sexual orientation, and
disability is critical to responsible leadership and citizenship;
and
WHEREAS, the District disapproves of and will not tolerate
discrimination, bias, or prejudice on the basis of race, color,
religion, ethnicity, national origin, place of birth, ancestry,
native language or accent, citizenship, gender, sex, gender
identity, sexual orientation, age, familial status, physical or
mental disability, or other legally protected status recognized
by federal, state or local laws; and
WHEREAS, the District cherishes the freedom of speech as a
fundamental right but recognizes that this freedom is not
absolute, and is subject to both legal restrictions and standards
of civility; and
WHEREAS, the Otay Water District’s elected officials are
required to be independent, impartial and responsible to the
people, and to conduct themselves in a manner above reproach,
and;
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WHEREAS, the Otay Water District’s elected officials are
expected to set an example which always demonstrates respect,
confidence, and trust between themselves and the community they
serve; and
WHEREAS, it is the Otay Water District’s expectation that
its elected officials will consistently behave in an ethical
manner, show deference to those who disagree, and encourage
public respect, confidence, and trust to all segments of the
community they endeavor to serve, and;
WHEREAS, the Otay Water District endeavors to foster public
respect, confidence, and trust between its elected officials and
the constituents whom it represents pursuant to Code of
Ordinances, Board of Directors Policy, No. 40, Ethics, and;
WHEREAS, on March 1, 2017, the Board of Directors of the
Otay Water District adopted Resolution No. 4329, in response to a
series of comments that Director Hector Gastelum posted on social
media in or about February 2017, which comments were considered
to be derogatory and offensive in nature, and which violated the
Otay Water District’s ethical values of mutual respect and
inclusion, and;
WHEREAS, Resolution No. 4329 condemned discrimination and
committed the Board of Directors of the Otay Water District to
refrain from making public oral or written statements or comments
in their capacities as District representatives that discriminate
against persons based on any legally protected status recognized
by federal, state, or local laws, and;
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WHEREAS, on April 17, 2017, the Board of Directors of the
Otay Water District adopted Resolution 4333, whereby the Board
censured Director Gastelum for his reprehensible and intolerable
comments to the media, on social media, and his further
incendiary comments during the March 1, 2017 Board meeting and
resolved further to monitor the future conduct of Director
Gastelum and consider further future actions should such future
actions be deemed warranted, and;
WHEREAS, in June and July 2020, Director Hector Gastelum
posted a series of comments on social media, which comments are
considered to be derogatory and offensive in nature, and which
violated the Otay Water District’s intolerance for discrimination
and its ethical values of mutual respect and inclusion, and;
WHEREAS, by this Resolution the Board of Directors finds it
necessary and prudent to publicly acknowledge that Director
Gastelum’s public behavior is reprehensible and intolerable, and;
WHEREAS, by this Resolution the Board of Directors desires
again to reinforce its commitment to mutual respect and
inclusivity of all constituents of its diverse community.
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of
the Otay Water District that the above stated recitals are
incorporated herein by reference;
IT IS RESOLVED FURTHER that Director Gastelum’s comments on
social media have demonstrated that he is not impartial and
responsible to the people he represents and he has not conducted
himself in a manner above reproach; and
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IT IS RESOLVED FURTHER that the Board of Directors hereby
reaffirms its commitment to insuring that all constituents of the
Otay Water District be treated with respect and integrity, and;
IT IS RESOLVED FURTHER that Director Gastelum’s recent
comments on social media do not set an example or the tone for
demonstrating respect, confidence, and trust between the
District, and the community it serves, and;
IT IS RESOLVED FURTHER that Director Gastelum’s recent
comments on social media have demonstrated that he has not
conducted himself in a professional manner, or shown deference to
those who disagree with him, and he has failed to encourage
public respect, confidence, and trust, and;
IT IS RESOLVED FURTHER that Director Gastelum’s recent
comments on social media were reprehensible and intolerable, and
they violated the Otay Water District’s ethical values of mutual
respect and inclusion, and;
IT IS RESOLVED FURTHER that Director Gastelum’s recent
comments on social media violate Board of Directors Policy No.
40, Ethics Policy, and they constitute official misconduct, and;
IT IS RESOLVED FURTHER that Director Gastelum’s recent
comments on social media constitute cause for censure, and;
IT IS RESOLVED FURTHER that Director Gastelum is hereby
censured for his reprehensible and intolerable comments on social
media, and;
IT IS RESOLVED FURTHER that the Board of Directors will
continue to monitor the future conduct of Director Gastelum and
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will consider further future actions should such future actions
be deemed warranted, and;
IT IS RESOLVED FURTHER that the Board of Directors, pursuant
to § 5.03 of the Code of Ordinances, requests that the Board
President under the powers granted to him, conduct a review of the
current Committee assignments for Director Gastelum and determine
whether a temporary or permanent removal of some or all said
committee assignments might be appropriate at the present time.
FINALLY BE IT RESOLVED that this resolution shall be in full
force and effect immediately after its passage and approval.
PASSED, APPROVED AND ADOPTED by the Board of Directors of
the Otay Water District at a regular meeting held this 9th day of
July, 2020.
Ayes: Noes: Abstain: Absent:
President
ATTEST:
District Secretary