In the weeks before being censured, Supervisor Michelle Bushnell sought to hold off public discussion on an outside investigation that found she acted in a hostile manner toward two employees, arguing through an attorney that she was denied due process in a flawed system.
The hearing ultimately did take place Nov. 4, with Bushnell receiving what amounts to a public statement of disapproval by her colleagues on the dais. A largely ceremonial gesture, the censure required a two-thirds vote to pass.
On a separate item brought forward by Supervisor Steve Madrone, the board majority also voted to take it a step further by asking the civil grand jury to review Bushnell’ s conduct and make recommendations on potential changes to the board’s code of conduct, which outlines the complaint procedures under dispute. She was also removed as chair. Bushnell abstained from both votes.
The votes were based on the findings of an outside investigation that sustained allegations the Second District representative “raised her voice, spoke in a hostile manner and cursed” at two employees in May, in violation of the board’s code of conduct.
In a social media post the next day, Bushnell said she understood the board’s decision and had taken “responsibility for the part I played in the incident that brought us here,” but noted she didn’t “agree with all of the findings or with how this process was handled.”
“I’ve retained legal counsel because I believe there is a significant issue with due process — and that matters, not just for me, but the integrity of this board’s procedures going forward,” she wrote.
Recently released correspondence chronicles a legal back and forth between Bushnell’s attorney Allison Jackson and the county’s outside law firm as Jackson sought to shift the course away from the supervisors’ chambers until the due process issue and other concerns were addressed, which included a proposed “redo” on the matter.
In a hand-delivered letter to county officials dated Oct. 2, Jackson raised questions about whether the process on complaints outlined in the board of supervisor’s code of conduct was followed and objected to the supervisor not being given the full investigative report “to provide the ability to evaluate the quality and veracity of witness statements.”
“Before this matter may be placed on any agenda of the Board of Supervisors, verification that the board process has been followed must be provided and the subject of the investigation must be afforded her due process rights in the process up to this point so she may be able to evaluate what next steps to take in this matter because she is dissatisfied, not with the committee’s determination because she knows of no such determination, but with the results articulated in the executive summary of the investigation provided to her,” the letter concludes.
The county’s outside law firm responded Oct. 16 that the report was “confidential and protected under the attorney-client privilege,” and Bushnell was “afforded full due process during the investigation.”
“While your client may disagree with the outcome of the investigation, the county stands by the integrity of the investigation and its results,” Liebert Cassidy Whitmore attorney Savana M. Jefferson wrote. “The Code of Conduct and Ethics does not provide a mechanism for the respondent or subject of a workplace investigation to appeal or otherwise challenge the findings of a neutral investigation. The Code of Conduct and Ethics requires only that the board member be notified of the allegations and provided an opportunity to respond.”
And, Jefferson added, “this matter will be agendized for open session consideration,” stating, “Bushnell will be notified again of the allegations and allowed the opportunity to present information to the Board of Supervisors.”
Days later, Jackson pressed back.
Reiterating arguments that Bushnell’s due process rights were violated by not having a chance to present her side of the story, including the ability “to call and cross-examine witnesses, present evidence, and make arguments,” the letter also countered the county’s reasoning for withholding the full report.
That privilege, the Oct. 20 letter states, “lies with the Board of Supervisors and Supervisor Bushnell when acting in her official capacity; she is one of the members who hold that privilege.”
“You have failed to provide any legal authority to support the implication that Supervisor Bushnell acting in her official capacity is somehow excluded,” Jackson wrote.
By contrast, when the city of Arcata hired the same firm, Kramer Workplace Investigations, to conduct an inquiry in 2022 into allegations former Councilmember Brett Watson sexually harassed an employee, the city publicly released the full 28-page report, in addition to nearly 600 pages of support documents with names redacted, before a special meeting on the findings.
According to a two-page executive summary released by the county, the Danville-based law firm interviewed six witnesses and found “credible evidence” that “more likely than not, Bushnell accused a county employee of being a liar approximately five times, yelled at her and did not give her an opportunity to speak.”
In addition, according to the summary, the investigation found “sufficient credible evidence was presented to establish that more likely than not, Bushnell accused another county employee of disloyalty, became angry and yelled and cursed at her, and slammed her door shut as she left her office.”
“Witnesses who overheard this incident corroborated that Bushnell was the aggressor, and reported hearing Bushnell cussing, yelling and slamming the door,” the summary states.
In her letter, Jackson also raised new process issues, contending that having the county counsel and the county administrative office as part of the panel “which rendered the non-appealable decision on this matter” was problematic on a number of fronts.
Under a revamped process unanimously approved in 2022, during Bushnell’s tenure, employee grievances are reviewed by a three-person committee consisting of the county administrative officer, county counsel and the human resources director, who then decide by a two-thirds consensus whether a formal investigation should be launched.
Jackson advised the best path forward would be a closed session.
“Failure to address these problems, as set forth above in my letter, will likely result in addressing them in Superior Court,” she wrote. “It may be prudent for all involved to have a redo of the three-person panel referring the matter out and reviewing the entire complaint. It may also be prudent to fix the formal policies and procedures to avoid this problem in the future. And, since failure to address this problem results in potential litigation, it also seems prudent to bring the matter in closed session before the entire Board.”
On Oct. 24, the county’s law firm sent a short notice to Jackson that a closed session on the matter would be taking place but not before the full board.
“Due to Supervisor Bushnell’s involvement in this matter and inherent conflict of interest, we direct your attention to the fact that your client cannot lawfully attend this closed session and must recuse herself from participating in it,” the letter states. “We presume you will advise her on this issue.”
On Oct. 31, Jefferson wrote to Jackson again, this time to inform her that the board was set to “hear in open session the allegations made against Supervisor Bushnell” on Nov. 4.
That agenda also included the separate item brought forward by Madrone to remove Bushnell as chair and ask the civil grand jury to review her conduct as well as the complaint process she was now challenging.
With the hearing set, Jackson shifted gears and in a Nov. 1 email asked the county’s outside attorney to “provide any type of authority” for the board to consider the item brought forward by Madrone.
“My client is an elected official, and there is nothing that supports the proposition that any measure can be imposed other than censure,” Jackson wrote, noting the time that had elapsed between the incident and the proposed actions coming forward “with nothing in between.”
In the last correspondence included in documents released under a public records request first filed by Lost Coast Outpost, Jefferson responds back after the decisions to censure Bushnell, remove her as chair and have the grand jury review her conduct and the board’s complaint procedures had already taken place.
“In addition to its authority to issue censure, the board retains inherent authority to manage its internal governance,” Jefferson said. “This includes determining leadership roles and committee appointments and implementing changes as necessary to safeguard the public interest and to maintain the ethical and effective operation of county government.”
She also wrote, the county’s Abuse Conduct Policy “prohibits any form of abusive conduct that creates a hostile environment for employees.” And, with concerns raised about “the investigation process and due process considerations,” that Madrone intended to ask for the grand jury to perform an “independent review,” citing provisions in Government Code section 3060.
As of early November, the investigation had cost just under $8,500 but a staff report from the meeting noted additional invoices are still expected, with expenses being paid out of the board’s liability account.
This article appears in Green-and-Gold Washing on the Menu?.