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HomeMy WebLinkAbout12 REVIEW INVESTIGATIVE REPORT BY CITY ATTORNEY 07-03-06 JULY 3, 2006 TO: HONORABLE MAYOR AND MEMBERS OF CITY COUNCil FROM: WILLIAM A. HUSTON, CITY MANAGER SUBJECT: REVIEW INVESTIGATIVE REPORT DATED JUNE 7, 2006, AS PREPARED BY THE OFFICE OF THE CITY ATTORNEY, AND PROVIDE DIRECTION OR TAKE ACTION AS THE COUNCIL DEEMS APPROPRIATE Councilmember Amante requested that the above referenced matter be placed on the agenda. Attached is the investigative report. INVESTIGATION REPORT TO THE CITY OF TUSTIN RE: ALLEGED MISCONDUCT OF NATHAN MINARD June 7, 2006 Prepared For The City of Tustin BARBARA RAILEANU, ESQ. DIRECT DIAL: (714) 564-2602 DIRECT FAX: (714) 565-2502 E-MAIL: BRAILEANU@WSS-LAW.COM WOODRUFF, SPRADLIN & SMART A PROFESSIONAL CORPORA nON 701 SOUTII PARKER STREET, SUITE 8000 ORANGE, CALIFORNIA 92868-4760 (714)558-7000 (714) 835-7787-FAX 509299.1 TABLE OF CONTENTS PAGE NO. I. BACKGROUND.................................................................................................... 1 II. SUMMARY OF INTERVIEWS .............................................................................. 1 A. Interview of Anna Gonzalez (Assistant Manager of KFC) Conducted by Elizabeth Binsack ..................................................................................1 B. Interview of Nathan Minard ........................................................................ 2 C. Follow-up Interview of Nathan Minard........................................................ 3 D. Follow-up Interview of Anna Gonzalez....................................................... 3 III. FINDINGS AND CONCLUSION ...........................................................................5 509299.1 I. BACKGROUND On May 18, 2006, Dana Ogdon, the City of Tustin ("City") Assistant Planning Director for Redevelopment received a telephone call from one of the managers at Kentucky Fried Chicken ("KFC"), "May," located at the corner of First Street and Newport in Tustin. The Manager related that Nathan Minard, one of the City's Planning Commissioners, visited this KFC along with his son the prior evening. During this visit, according to the Manager, Mr. Minard approached one of the employees and requested to use the restroom. When the employee explained that there was no restroom available for customers, Mr. Minard began to threaten the employee. He proceeded to act in a similar manner with Assistant Manager, Anna, who explained that they are not permitted to let customers use the restroom in the back which is designated for employees only. Mr. Minard threatened that he is with the City and that he could have the business shut down. According to the Manager, he then proceeded to give his business card to the Assistant Manager. Eventually, she allowed his son to use the restroom and walked him behind the kitchen. Concerned about this alleged conduct, Bill Huston, City Manager, directed the City Attorney's office to conduct a fact finding investigation in the matter. II. SUMMARY OF INTERVIEWS (The following are summaries of witness interviews. The summaries are intended to relate only portions, pertinent to this investigation, of what the witnesses stated, not the author's opinions, without assigning any particular weight to any particular statement.) A. Interview of Anna Gonzalez (Assistant Manaaer of KFC) Conducted bv Elizabeth Binsack Upon receiving the information from Mr. Ogdon, Elizabeth Binsack, the Planning Director for the City telephoned the Assistant Manager, Anna Gonzalez, and asked her to relate what had happened. Ms. Binsack stated that when she spoke with Ms. Gonzalez, Ms. Gonzalez was nervous and flustered. Ms. Gonzalez related the following to Ms. Binsack. She recalled that Mr. Minard was eating in the restaurant with his son. Mr. Minard got up at one point to ask whether there was a restroom in the facility. She explained to him that they did not have a public restroom but that he could use the one at Albertson's nearby. According to Ms. Gonzalez, he then proceeded to tell her that if she did not let him use the restroom for employees he would jump over the counter. She explained to him that there are health codes that they are required to abide by. This statement prompted him to tell her that he works for the City and that he would sue and "shut them down." Based on this statement, she agreed to take his son through the kitchen to use the employee's restroom. She related to Ms. Binsack that she was "pretty scared" because of Mr. Minard's conduct. She also stated that after he left the restaurant, she called her Manager to tell her what happened. She stated that her 509299.\ manager was upset with her that she let the boy use the restroom. She explained to Ms. Binsack that she told her Manager that she only allowed it because she was scared. Ms. Binsack called Ms. Gonzalez a second time on May 22, 2006 and asked whether there were any other employees around at the time of the incident and whether there was a video camera. Ms. Gonzalez told her that there was another employee named Eduardo with whom Mr. Minard initially spoke and that although they have a video camera, it was not working at the time. B. Interview of Nathan Minard I interviewed Mr. Minard regarding this matter on May 22, 2006. He related that he generally recalled the evening but that, at least in his mind, nothing significant happened. He did not remember on what night the event occurred. He remembered that he was eating dinner with his parents and his nine-year old son at KFC. According to Mr. Minard, no other customers were present in the restaurant at the time. At one point, his son needed to use the restroom and Mr. Minard asked the cashier to borrow the key for the restroom, assuming that it was located outside. The cashier told him that they did not have a restroom at all. He stated that he attempted to explain that that is not possible, "unacceptable" and that they had to have a restroom. Although he did not ask to speak to a manager, he remembered that at some point, the cashier "disappeared" and a woman whom he assumed was a manager came out to speak with him. He related that she did not appear to understand English very well or trying to appear as if she did not understand English well. According to Mr. Minard, she related that they did have a restroom facility but that it was for employees only and that she is not allowed to take anyone in the kitchen area to access the restroom because of either KFC's rules or safety or health concerns. Mr. Minard admitted that he did give her his City Planning Commissioner card because he wanted to reassure her that he was familiar with the health codes given that he works for the City since she was questioning his knowledge. When asked what his tone was during this discussion, he stated that he never yelled at her nor did he say anything that was derogatory or intimidating. He admitted that he may have spoken with her "forcefully." He categorically denied ever threatening that he would jump over the counter or shut the restaurant down if she did not allow him to use the restroom. During the interview, when he stated this, he laughed and said that he would not have authority to do that anyway so why would he say it. When asked whether she offered that he could use a neighboring business' restroom facilities, he stated that she mentioned to him that they could use Albertson's. However, he said that his son needed to use the restroom "very badly" and that Albertson's was a quarter of a mile away and too far. When asked why she eventually allowed his son to use the restroom if he did not threaten her, he related that he told her to "look inside her heart" and "do the right thing." He also speculated that if he had threatened her, "there was no way that she was going let them use the restroom." He stated that she then decided to help them out. He continued to insist that he was 2 509299.1 puzzled as to why she would claim that she was threatened. I also asked whether there were any witnesses present during this conversation and he said that "everyone just hid in the back as if no one wanted to deal with them at all." He also stated that no other customers walked into the restaurant. After she let his son use the restroom, he did not say anything else to her. He added that he did thank her for allowing him use the restroom. During this incident, he stated that he was never upset with her. When asked why she would call to report the incident, he stated that the only possible reason that he could think of was because, on their way out, his elderly mother, who has trouble walking, knocked over a soda spilling it. They did not return to clean up the mess although he did think about doing so. He said that this may have "set them off." He said that thinking back, he probably should have gone back to clean up the mess. He related that they were in the restaurant for approximately one hour. He also stated that she never appeared upset to him during the three minutes that they talked and that to the contrary, he thought that they had a "very decent conversation." He was not aware of whether there was a video camera in the restaurant. He informed me that he never had any intention of reporting that the facility did not have a restroom. He also added that, logically, if he thought that he had done something wrong during that exchange, he would not have given her his card. He stated that he could not believe why she would report him as being hostile because he is not hostile to anyone. c. Follow-up Interview of Nathan Minard On May 23, 2006, I telephoned Mr. Minard to ask a few follow-up questions. Specifically, I asked Mr. Minard why he gave Ms. Gonzalez his City business card. During this interview, he informed me that he really did not remember what his motivation was and that he did not recall exactly what was discussed prior to giving her his card. He simply stated that somehow it was worked into the conversation and that he went and got her a card and that that was all that he remembered. He added that he gave her a card in the event that she wanted to contact the City to ask any question. I also inquired whether the City had any rules or practices regarding use of a City business card. He answered that there probably should be but that he was not aware of any. He added that he probably will not be using them anymore. He denied ever giving his card to any other businesses in similar contexts such as the one involved here. D. Follow-up Interview of Anna Gonzalez On May 26, 2006, I attempted to speak with Ms. Gonzalez about the incident. When I arrived to interview her, she related that the area manager for KFC, Sean Adams, directed her not to speak with me about the incident. I asked her to give me his telephone numbers which she proceeded to do. 3 509299.1 On June 1 and 2, 2006, I left voicemail messages for Mr. Adams. He returned my telephone call on June 5, 2006 at which time I explained to him that the City is only interested in investigating the conduct that was reported by the KFC Manager and is not interested in taking any legal action against KFC. Based on this representation, he agreed to allow Ms. Gonzalez to speak with me. I interviewed Ms. Gonzalez on June 5, 2006 at the KFC in Tustin. It should be noted that although Mr. Minard mentioned that she did not appear to understand English well, I did not find that to be the case. During this interview she related the following. She recalled that one of her employees came to the back of the restaurant where she was working and informed her that a customer wanted to use the restroom. She explained to her employee that he should tell the customer that he is not permitted to use the restroom. He told her that he had already explained that to him but that he insisted on being able to do so and on speaking with a manager. She then went to the front to speak with him while the cashier employee remained in the back to help clean and close the restaurant. As she approached, she informed Mr. Minard that it is not possible for him to use the restroom. She suggested that he could use the restroom at Albertson's across the street. He rejected that suggestion and insisted that it is a violation not to have a public restroom in the facility, to which she responded that the health department had already inspected the facility and stated that, based on the number of tables in the restaurant; it was permissible to not have a public restroom. According to Ms. Gonzalez, he continued to push the issue and told her that he would jump over the counter if she did not let him use the restroom. She continued to explain that she could not allow him to do that. He also told her that he works with the City and that he would "shut them down" if she did not allow him to use the restroom. She stated that he then went out to his car to get his business card. When she saw that he was in fact affiliated the City, she became concerned that he really might do something to shut the restaurant down. He also told her something to the effect that she should "do the right thing" and let his son use the restroom. Because she was afraid that he might take action against the restaurant, she agreed to let him in but she explained that she would only be able to let his son go through the back. He agreed. When his son, whom she described as being about eight years old, returned from using the restroom, she and Mr. Minard did not have any additional conversations. She related that during this exchange, Mr. Minard definitely appeared to be angry. However, she stated that he did not yell. She related that no other customers came in while they were talking and that no other employees were around when she was talking with Mr. Minard. She related that the video camera in the restaurant was not working at the time that this exchange took place. Finally, she related that she saw that he was eating dinner with an elderly couple whom she assumed were his parents. She stated that when they left, she assumed that he was still angry, because they left behind all of their trash and spilled a soda. 4 5092991 III. FINDINGS AND CONCLUSION Based on the interviews conducted, there is no clear basis upon which to credit one version of the events over another. There were nO internal inconsistencies in either of the interviewee's versions. Ms. Gonzalez was credible and appeared to recall the incident clearly. Similarly, Mr. Minard appeared to be credible, although it should be noted that he did give the impression that he was trying hard to appear calm during the interview. On the other hand, each had a motive, at a minimum, to, in Mr. Minard's case, downplay, and in Ms. Gonzalez's case, to exaggerate, the nature of the incident. Specifically, Mr. Minard was being investigated and certainly would want to minimize the severity of his actions with respect to this incident. Conversely, Ms. Gonzalez admitted that her manager was upset that she allowed a customer to use the employee restroom and in order to justify her actions, could certainly have been motivated to exaggerate Mr. Minard's behavior. Taking these issues into consideration, we are not able to conclude with any degree of certainty whether Mr. Minard or Ms. Gonzalez is accurately relating the events which took place. However, the only significant discrepancies between the two statements were that (1) Mr. Minard denied stating that he would jump over the counter if she did not let him use the restroom; (2) he would shut the restaurant down if she did not let him use the restroom because he works for the City; and (3) he was angry while he was speaking with her. On the other hand, Mr. Minard admitted that he gave Ms. Gonzalez his City business card, but his reason for doing so differed from hers. While she said that he did so in order to impress upon her that he had the power and authority to shut the restaurant down, he related that he did it in order to demonstrate to her that, as a planning commissioner for the City, he was familiar with the health codes. When questioned again during a follow-up interview regarding his motivation for giving her his business card, he stated that he really did not remember why he did it. Respectfully submitted, WOODRUFF, SPRADLIN & SMART A PROFESSIONAL CORPORATION By: BARBARA RAILEANU, ESQ. ~ BR:mrs cc: Douglas C. Holland, Esq. 5 509299.1