Calexico, California - Calexico City Councilmember Maritza Hurtado: "During our briefing yesterday, you reported to me that Mr. Bostic has been fired due to insubordination and due to direction given to you to do so by the city council. You further explained your decision was due to his moving forward with the 16 “new” investigations, although ordered not to do so, and, his disregard to the $10,000.00 spending limit the council recently put in place.
"I shared my concerns with you with regard to the pending JPIA appeal hearing date on October 16th and the negative implications the timing of this publically controversial release would bring to such a desperately needed successful case. I also reminded you that we must keep in mind the JPIA appeal status.
"I will remind you that I did not provide any direction to you to take such adverse action and I did not witness any council direction to you or to our legal department to commence adverse action or legal action against Mr. Michael Bostic. I am fully aware that an adverse decision will impact our pending appeal status in a negative manner according to what is required in our Performance Improvement Program issued by JPIA.
"I have supported healthy permanent negotiations with Mr. Bostic from the day of his initial appointment as the INTERIM Police Chief by the then City Manager Richard Warne who took action within the legal authority given to him under the Calexico Municipal Code City Manager description of Powers and Duties.
"However, the council majority has neglected to take action in over a year, allowing Mr. Bostic to accumulate a public servant status under municipal employment provisions. The city must consider its legal liability by this untimely adverse decision. Better management practices are expected by the public to avoid exposing the city to expanded liabilities and take proper steps to maintain rigorous risk management environment practices with transparency to limit any future similar exposure.
"Several citizens question the manner in which instructions and direction is given to a city manager in today’s decision. The city of Calexico now has an “Acting” city manager, Nick Fenley, appointed in closed session by a council majority. Said “Acting” position is not specifically described in the Calexico Municipal Code, however, in past practice, does exist and is usually a “place holder” meanwhile an “interim” or “permanent” manager is found. Our code contains several grey areas as far as these descriptions are concerned and needs to be updated and modernized. The Municipal Code described a “city manager” only and does not provide detailed job title descriptions leaving the interpretation open for challenge. The Code does, however, provide ample executive and discretionary decision making to the city manager position.
2.02.110 - Powers of appointment.
It shall be the duty of the city manager to appoint, remove, promote and demote any and all officers and employees of the city, except the city attorney.
Our city is plagued with the lack of professional city council relations and lack of adhering to the Brown Act and Open Meeting Rules that help govern a better run city municipality. We must change our attitude towards micro managing and other issued that have slowed growth. I support full transparency within our city management especially during these crucial decision making situations.
2.02.190 - City council relations.
The city council and its members shall deal with the administrative services of the city only through the city manager, except for the purposes of inquiry, and neither the city council nor any member thereof shall give orders to any subordinates of the city manager. The city manager shall take his orders and instructions from the city council only when sitting in a duly held meeting of the city council and no individual councilman shall give any orders or instructions to the city manager.
"On December 1, 2015, your office issued a news release referring to the reasons for release of Michael Bostic by stating a completely different set of issues and reasons for firing Mr. Bostic, information I was unaware of and which information you did not share with me yesterday in our briefing. I once again question the manner in which you have received orders and instructions without violating the Brown Act. I was not aware of any city council goal setting meeting prior to the three department head firings which just occurred. We have an insurance crisis and we are enduring the wait time period for the appeal submitted to the JPIA and the pending hearing scheduled for December 10th. This adverse action is in direct violation of our PIP.
"I have received an overwhelming amount of concerns from the community of Calexico regarding this action which compels me to submit this statement. The Calexico Community has shown their overwhelming content for the hard work performed by Mr. Bostic in the last year and are concerned to now see further instability. Furthermore, the community feels there is little to no transparency or explanations from our administration during the JPIA appeal process and the last three unexplained and highly disruptive department head firings.
"Please accept this open letter to you as my public challenge to the baseless statements you have made in said news release which have no legal support or substantiation. More specifically, there are discrepancies in the reasons for termination of Mr. Bostic as described in this news release to what I was briefed and which I immediately provided to the public yesterday.
"The city office news release today now states the dismissal is due to Mr. Bostic’s questionable hiring and whether he was given the title of Chief of Police with legal powers and authority. Due diligence is required prior to making statement such as this. After reviewing Bostic’s contract, and after reviewing the city manager authority under the code, I find there is no valid substantiation to these claims. There is no mention of “Public Safety Expert” in the description of professional services in his contract. The Professional Services clause is as follows: “Consultant will provide services under the terms and conditions of this agreement as an INTERIM Police Chief for the City of Calexico (emphasis added).” There are no other descriptions of the scope of his position or employment within this contract. No evidence exists that I could find that descrbed Mr. Bostic’s scope of work as a Public Safety Expert.
The following is the news release issued:
“The City of Calexico has placed Michael J. Bostic on administrative leave until December 5, 2015, when his services will formally cease. Mr. Bostic was retained by the City in October of 2014 for service as a Public Safety Expert. Despite this limited designation, and perhaps due to the City’s needs, he informally undertook the title of Chief of Police. Unfortunately, though it was no fault of Mr. Bostic’s, his work as Chief of Police was never vetted through the open recruitment process nor approved by the City Council. In the interest of transparency and in conformity with best practices, the City decided to end Mr. Bostic’s services and move forward with the formal recruitment of a true, permanent Chief of Police. That recruitment will be open to all applicants, including Mr. Bostic. The City would like to thank Mr. Bostic for his service and wishes him the best of luck in his future endeavors.”
"The news release indicates that the hiring process that brought Mr. Bostic to Calexico was “informal”. Please be advised this is incorrect. The council has been continuously briefed on this and should help remember that former City Manager Richard Warne followed the provisions of the Calexico Municipal Code, which allows the City Manager to appoint and name a Police Chief who under a consultant contract was legally hired.
"This is the same Municipal Code followed by Mr. Fenley in appointing Mr. Reggie Gomez today as Interim Police Chief. Mr. Gomez was never “vetted” through the “open recruitment process” nor “approved by the City Council”.
"This did not occur in both occasions in that these positions are INTERIM in nature. We must be careful not to misapply the “non-vetted” and “open recruitment” requirements stated in this news release, or, that specific municipal code sections will only apply in selected position appointments. Seletive application of law should be avoided in both our recent “INTERIM” Chief of Police appointments (Bostic and Gomez) per the Calexico Municipal Code Section 2.01.110 in that there is no specific reference to imply the inclusion of a Police Chief title, less the INTERIM chief position title either.
"At the time of his appointment, Mr. Bostic was legally hired as an INTERIM as per Code Section 2.02.110 and with formal, legal advice sought by then City Manager Warne to replace then Police Chief Pompeyo Tabarez from his position. This is legal past practice and is still the section followed at present.
"The fact that these positions are INTERIM and appointed by the City Manager should not and must not imply that a Police Chief appointed under this code section does not have proper authority nor is subject to any other authority or control to act with executive decision making under the same authority."