Investigation says Payne discriminated against employee; sought racial profiles


By Jack Mayne

An investigation into the actions of former interim SeaTac City Manager James “Donny” Payne says he harassed a city employee and that his work conduct would have made it difficult to gain the “confidence and respect” of employees.

The investigator said his research into an employee’s charges were “well founded” that Payne “harassed her, created a hostile work environment, and retaliated and discriminated against her based on race and her refusal to submit to unethical requests.”

The report (download full PDF here) also showed that Payne had high concerns “about terrorism and about African immigrants in SeaTac.”

The investigation
Attorney Michael A. Griffin of the Seattle office of national law firm Jackson Lewis was hired by the City of SeaTac to investigate a complaint made on March 18 by Human Resources Manager Vanessa Audett against now resigned Interim City Manager Payne.

When the new Council took over in January and Forschler was elected mayor, then soon after the Council unanimously fired then-City Manager Todd Cutts and city staff began a “somewhat informal” process to find a new manager.

On Jan. 19, the Council interviewed the four candidates in a public session and voted 4-3 to hire Payne. The newly elected Councilmembers were for him, the three holdover members voted against him.

“It appeared to multiple witnesses who attended the Jan, 19 meeting that the Council majority had pre-selected Mr. Payne and that the hiring process was a sham, Griffin said in his report. “That is the impression that members of the public have apparently expressed as well.”

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Click image to see larger version.

Forschler believed Payne was “by far” the most qualified candidate based on his military experience, his business experience, and his master’s degree, but other Councilmembers “did not necessarily have their minds made up” after the interviews,” Griffin wrote.

Payne started work on Jan. 20 and on Jan. 26 he signed an at-will employment agreement.

Payne “suggests that his hiring signified the new Council’s desire to move the city government in a new direction,” Griffin said.

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Military Jargon
Payne “primarily worked in the military,” said Griffin’s report, but city staff and managers “maintained open minds and gave Mr. Payne the benefit of the doubt.”

But his military phrases confused them.

Such militarisms as “mission critical,” “mission creep,” “situational awareness,” “MDMP (Military Decision Making Process), and “synchronize, integrate, coordinate,” left staff wondering what he meant.
He also communicated to staff “in an odd fashion.”

“Mr. Payne would ask repeatedly ‘are we busy today?’ in a tone of voice that implied that the employee was not busy, which the employee considered insulting. Another example was that Mr. Payne sometimes stood over employees’ shoulder and observed them working without notifying the employees he was there.

“This conduct was unsettling to employees,” the investigator wrote.

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Audette was blunt
On the other hand, Griffin said, “Ms. Audett has a direct, sometimes blunt, communication style. Most witnesses appreciate Ms. Audett’s directness and believe she performs her job responsibilities very well.”

City department heads held her in high regard, Griffin said, but Payne did not. He considered Audett’s communication style tactless and insubordinate at times.

Audett is a “human resources professional with considerable experience, primarily in the private sector and has worked for the City since October 2104 (sic). Most witnesses appreciate Ms. Audett’s directness and believe she performs her job responsibilities very well,” Griffin wrote in his report.

Payne wants a deputy
After he was hired, Payne wanted to hire a deputy city manager to replace outgoing Assistant City Manager Gwen Voelpel, who left the city at the end of Jan. 29. He wanted to hire “a personal friend of Mr. Payne’s he knew from the military who Mr. Payne considers loyal and trustworthy,” wrote Griffin in his report.

The report said Payne asked Audett “to create a fraudulent process under which it would appear externally that a competitive application process for the deputy position was conducted, when in fact the outcome would be predetermined, resulting in Mr. Payne’s candidate being hired.”

Payne denies this.

He said he asked Audett to create a “legal” process to allow his candidate to compete.

But Payne told Griffin “he would not have been satisfied if an open application process resulted in someone other than his candidate being hired.”

Audett told Payne that he was asking her to do something that was unethical and that “she would not lie for him” but Payne denies that he was asking Audett to do anything “illegal, immoral, or unethical.”

Griffin didn’t buy denial

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“Given Mr. Payne’s statement that he would not have been satisfied with hiring anyone other than his candidate, it seems more likely than not that Mr. Payne was in fact asking Ms. Audett to create a process that would give the appearance of an open competition that would not actually occur,” said the investigator’s report.

Audett did not wish to comment on Griffin’s findings.

Payne responded to requests for comment, and we have published his rebuttal below.

SeaTac Deputy Mayor Pam Fernald said she does “not condone profiling, retaliation, harassment or improper behavior of any nature at City Hall.

“I support Ms. Audett 100 percent. In my view, The Legal Department and staff involved in this complaint did what was necessary and proper regarding this subject complaint.

Fernald added the city now has “a great interim city manager and will move forward with a formal search, with lessons learned, for our new permanent city manager as we continue on with the city’s business.”

Payne’s racial, ethnic concerns
Griffin’s full report also opens areas of tracking racial and religious affiliations of SeaTac residents.

He says that in February, Payne sent an email to all city employees about a top priority of his – emergency preparedness. In it, Payne asked all city employees to respond as a “test.”

“He apparently meant an obedience test to see which employees, if any, would not comply with his request,” Griffin’s report says. “Mr. Payne believes this test was the responsible thing to do so that he could get ‘situational awareness.’”

Payne told Griffin he needed to “establish control” with his directors and suggested this email was a way of doing that.

Department heads and many workers did respond, but not all.

Payne was unhappy with those employees who had not responded – “You know who you are.”

So he sent another email and demanded all who had not done so before respond.

Still, not all did.

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“Mr. Payne’s anger increased,” said Griffin’s report. “Some witnesses had the impression that Mr. Payne wanted to know every employee who failed to respond so he could confront them individually, but it does not appear that he did so.”

At a staff meeting, Payne expressed his frustration regarding the lack of 100 percent response and Audett “explained the feedback she had received from employees regarding their discomfort with the emails.”

She and Payne had a “tense discussion” during which he “was visibly angry. His face was red and he was gesturing abruptly with his arms and hands, showing his anger,” said Griffin’s report. “Ms. Audett perceived that Mr. Payne directed his anger primarily at her during the meeting, and several witnesses shared that perception, stating that he was clearly very angry with Ms. Audett.”

Griffin said an attempt to defuse the issue didn’t calm Payne, “as he did not seem to understand why every city employee would not comply with his request.”

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‘Hostile environment’
Race entered the situation when Payne told Audett, “I’m not Asian so I can’t sit without expression.”

Payne knew Audett was part Japanese.

In his report, Griffin said, “While it is unclear what precise words Mr. Payne used in the March 16 conversation, he admits making a reference to Asia or Asian culture. This offended Ms. Audett.”

On March 18, Audett formally charged that Payne “harassed her, created a hostile work environment, and retaliating and discriminated against her based on race and her refusal to submit to unethical requests.”

Later the same day, then-Mayor Forschler and then-Deputy Mayor Michael Siefkes called Payne and “informed him that he was on administrative leave effective immediately pending investigation of Ms. Audett’s complaint. They told Mr. Payne to leave the building and not to take his access key card.”

Payne did so right away. Later Payne resigned and it is believed he has returned to the Army and may be in Hawaii.

Griffin says in his report that Siefkes thought an investigation “might not be necessary,” but “Forschler wanted an investigation conducted. He feared Mr. Payne would not be given an opportunity to defend himself and that the Council would be terminating him without the full story.”

Griffin concludes that Audett’s “complaints, and related concerns shared by other witnesses”; appear to be from Payne’s “statements and actions, not a fear of change in city management.”

He adds that many witnesses thought Payne’s conduct would make it difficult to gain the “confidence and respect” of employees.

The investigator said that based on his research, “it seems that Ms. Audett’s complaints are well founded.”

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African immigrant concerns

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The report also says Payne was “concerned about terrorism and about African immigrants in SeaTac” and the then-recent attacks in Belgium. He considered a city program to “starting an ‘Americanization’ or ‘assimilation’ program” for immigrants in SeaTac but he apparently did not do so.

He did consider mapping the whereabouts of all African residents in the city.

“Mr. Payne stated an interest in knowing with a great deal of specificity (to the neighborhood, house, and even person) where Sunni and Shiite Muslim residents lived,” said Griffin’s report. “He mentioned that he is aware of conflicts in the community between different religious sects, and he suggested … that he wanted the information in case he needed to go into the neighborhoods to “make the peace.”

The request made city Graphic Information Systems Coordinator Zinta Smidchens “very uncomfortable.”

“It appeared to her that Mr. Payne was seeking to profile Muslims.”

Then Griffin added, Payne “at some point … did say something to the effect of ‘I guess we could break down Christians into Catholic and Protestants,’ it seems to have been an after-thought.”

Griffin also says former Assistant City Manager Gwen Voelpel said Payne was thinking of creating a “profile” of the council members and of a couple of citizens, Earl Gipson and Vicky Lockwood but Voelpel told him the city doesn’t do that “and it seems the matter was dropped.”

After Smidchens expressed to other city officials her concerns, she asked Payne in an email to explain his request and she said he “softened” the request “when putting it in writing, explaining that his intent was to create a communications outreach plan to engage better with residents.”

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Griffin said Payne told him that part of the reason “he wanted the data was because of his concerns about terrorism.”

The U.S. Census does not collect religious information, Griffin said, so no effort to map citizens by religion occurred.

Payne also discussed the city’s diverse population of Somali and Eritrean communities with Police Chief Lisa Mulligan and about “radicalized” Muslims.

Griffin said Payne “seemed fixated on social unrest.”

Payne also asked Mulligan to “support reversing an apparent City policy prohibiting employees from bringing firearms to work, which the Chief did not support.”

PAYNE’S REBUTTAL
Friday afternoon (May 6) around 1:30 p.m. Mr. Payne sent The SeaTac Blog this rebuttal, which we are printing in its entirety:

DO YOU BELIEVE THE INVESTIGATOR’S REPORT WAS COMPLETE AND PROPERLY DESCRIBES THE INCIDENTS OF JANUARY AND FEBRUARY?
I profoundly disagree with many of the investigation’s conclusions and of course all of the original hypersensitive complaint. This investigation does not accurately reflect the realities of the political environment nor adequately contextualize the situation in which I was put in as Interim City Manager. Both documents include lies, biased statements, inaccurate allegations and I would have happily submitted myself to a polygraph test if asked to show the veracity of my remarks. Indeed, the report cited that I essentially only did three separate “actions,” which evidently created a “hostile work environment:”

  1. Asked HR for a legal process to fill the Deputy City Manager position, allowing for a particular candidate to compete. (but nothing else was done)
  2. Asked city employees about their current emergency preparedness and ability to respond to work in an emergency. (but nothing else was done)
  3. Asked for updated GIS maps (we already had these), depicting current demographics based on the most recent US Census data. (but nothing else was done)

As you can see, nothing here was illegal or immoral and was totally in the purview of my position. Everything else in the report, amounted to certain people’s perceptions or feelings about my communication style and what they thought my intent was; while actual evidence of ill-intent is sorely lacking. The complaint and the report confuses conversations and mere information-gathering– in order to make an informed decisions– with retaliatory action which never occurred. Comments made that should have been taken as humorous and/or trying to “break the ice” were not only taken out of context but also exaggerated to a point beyond belief. Anything I said or requested was taken with derision and placed in the worse possible light. But if all these things could be so easily conflated (and given actual credence!) to indicate some sort of bad intent, devoid of actual action, no future City Manager will easily survive. This process will continue to occur until Staff gets the leader they want, instead of what the City Council wants. Such self-serving behavior should not be permitted in any government.

ARE YOU CONSIDERING ANY FURTHER LEGAL ACTIONS IN THIS MATTER AND, IF SO, ON WHAT BASIS?
I retain the right to pursue legal actions against entities and individuals as necessary.

ANY OTHER COMMENTS, ON THE REPORT, ITS VERACITY AND ACCURACY?
The verisimilitude of the “investigation report” should not be confused with actual truth. In this case, truth is dispensable while verisimilitude is not. Besides totally disagreeing with the original complaint, parts of which were outright lies that would not hold up in a courtroom on pain of perjury, the investigation report is outrageously biased toward the city. It was performed by an outside attorney, hired by the city to prove the hypothesis of the original erroneous complaint. While I was hoping to get a fair shake during the conversation with their attorney, I naïvely spoke without my own legal representation by my side. It turned out to be an adversarial interview with their lawyer, rather than an objective fact-finding mission by a neutral 3rd party.

Although there were many examples, some of the most egregious mischaracterizations in the Investigation Report, occurred in section G (Statements about Immigrants and GIS…). Of all things said and implied in this report, this section in particular made wild assertions that were manifestly untrue and irresponsible.

To begin with, the attorney’s point is moot because religious mapping can’t be done with any specificity. But the investigator has made disgraceful bald assertions here without backing it up with ANY evidence whatsoever. While the entire report had a vague implication of bigotry or bias, this passage came right out and said it, simultaneously failing to provide proof. Outrageous beyond belief! This was an absolutely reckless investigation smearing my good name while not corresponding to the facts. I harbor no ill-will towards anyone, and only want the best for everyone. The updated GIS information was simply an analytical tool which could be used to ensure everyone in the city was best provided essential services. Nothing else.

I was hired to be a change agent by the City Council in the same way they were hired by the voters to change the city. While I awaited the City Council’s (excruciatingly-long) process of providing me with their approved Vision-Mission-Goals for the city so that I could run the city in accordance with their explicit desires, I gathered information to make good future decisions. Certain staff, hypersensitive about the sea change within the organization, took umbrage with any changes I may have proposed or how I offered it, undermining me and the new city council. My otherwise stellar character was assassinated; and because I was only there for a short period of time, I had not built up the political resilience needed to mount an effective counter. Thus I resigned with my integrity intact. The report is not a veridical representation of what occurred, and amounts to one attorney’s opinion of second-hand information.


Comments

26 Responses to “Investigation says Payne discriminated against employee; sought racial profiles”
  1. C.T. Stapher says:

    So, this is the guy that Tapio and Forschler are so mad that he got fired? All three are attached at the hip. Maybe Tapio and Forschler asked Payne to do those things?

  2. R. Tresvant says:

    Sounds to me like the old city staff is just trying to get revenge against the new city council, because they got rid of their old boss.

    The staff didn’t want to give the new guy a chance, because he didn’t fit their liberal political view for the city.

    The new council should have fired all of the old staff & started over.

  3. Chuck D'Arielli says:

    I can say only what I know for sure if the staff does not like to be asked what their doing or if they don’t like to be watched they better be glad their not working for a local airline manufactoring company

  4. Vicki Lockwood says:

    Donny’s behavior is ‘creepy’. His management techniques and actions were deplorable and insensitive. It’s obvious that he was a hand-picked marionette to implement certain individuals’ hidden agenda, but he remains responsible for his despicable treatment of our City Staff. The motives, goals and actions of these people are disgusting. I regret having supported Mr. Forschler in our last election and I want him to have the decency to resign from his current Council Position. I don’t want this perverted thinking in our City in ANY capacity.

  5. C. Carswell says:

    How did certain contrary city hall employees became so entrenched despite their tender sensibilities. The citizens of SeaTac have a right to expect more focus on getting things done than complaining about minor administrative issues. Citizens should realize that there are serious implications relevant to what has happened recently at City Hall namely, what next? Can the next city manager expect the same reception when he/she attempts to implement the Councils agenda? We’ll find out who is in charge at City Hall; the adults or ………….

  6. Michelle says:

    Yeah, that’s scary.

  7. D Tapio says:

    Only a small fraction of this story has been told. There is much more to come. What is covered here is like a smoke screen obscuring the real issues, the people behind the scenes who are entrenched into protecting the status quo, and the soap opera-like drama playing out with different personalities and people choosing sides. And, nobody knows the full story.

    The new council promised to bring change and that is unsettling to some. Most employees live outside the city and some primarily come to work for the paycheck and the pension. They have no firsthand knowledge or passion for the issues the voters were concerned about last November – like crime, break-ins and the emotional loss of trust that follows, blight, code enforcement issues, mail theft, thugs walking the street at night, and poor schools. They have little passion for protecting property owner’s rights and keeping reasonable regulations and processes for building and developing.

    This is almost like the TV series 24. One person becomes the central figure and you are convinced that they are a good guy. Then, the next episode reveals they are a villain. A few episodes later they are a hero again. Who knows?

    I have known the previous interim city manager for less than 6 months and had little interaction with him during his tenure at the city. However, I have talked to him considerably since he left the city in order understand issues at the city. He may look like the villain right not, but after more of the story has been told, he may very well be one of the good guys.

    This story will inevitably have more twists and turns. Fasten your seat belts, reforming a city will be quite a ride.

  8. C. Carswell says:

    A thoughtful, reasoned comment. And when more of the story is revealed and Mr. Payne
    emerges as one of the “good guys”, his detractors will become less and less comfortable requiring some soul searching. A residual effect of this affair is that Mr. Payne’s otherwise stellar reputation earned over a many years has suffered. Shameful!

    • Mysty Beal says:

      Oh, please, he’s a Don Wasson (rip) re-tread – he couldn’t get elected in Des Moines, so fellow right-winger Forschler sold this reject to the new seatac council. How’d that work out for you guys – thinking not so good since you quietly accepted his resignation to get rid of This embarrassment. New council – you’re 0 for the exisTing season…

  9. Michael T Kovacs says:

    This quote from the SeaTac Blog concerns me as a citizen.

    “”SeaTac Deputy Mayor Pam Fernald said she does “not condone profiling, retaliation, harassment or improper behavior of any nature at City Hall.
    “I support Ms. Audett 100 percent. In my view, The Legal Department and staff involved in this complaint did what was necessary and proper regarding this subject complaint.
    Fernald added the city now has “a great interim city manager and will move forward with a formal search, with lessons learned, for our new permanent city manager as we continue on with the city’s business.””

    Council member Fernald will support all those current employees even if they lied and screwed over the citizens. Case in point my issue with a code enforcement employee last January who had an arrogant response. In the email trail Council Member Fernald told me she would protect any city employee when I pushed back on that city employee.

    We are in big trouble folks with this line of thinking. http://www.takeseatacback.org is being updated with a new wall of shame with city council members behavior.

    • Mysty Beal says:

      You all complain that the city staff live outside SeaTac, but really, is there anyone within your borders that are qualified to hold those positions? Oh, try to find better than you have, but who the hell would want to work here with a Mayor-appointed Colonel Flagg-type with his really creepy agenda? I feel so sorry for those that serve you ungrateful citizens’ and I really hope you can find better candidates for the committed workers you chase out.

      • Chuck D'Arielli says:

        I’m sure your right misty nobody here i seatac but a bunch of ignorent hillbillys with no brains thank god for the outside help coming in to save us

  10. Longtime SeaTac Resident says:

    Fellow residents and taxpayers of SeaTac, my experience with city staff has been positive. They have CHOSEN careers in public service because they want to make a difference in any community they choose to work. We should EXPECT that the best qualified candidate, based on experience, education, and talent be selected to fill any and every position in the city, from temporary help to the City Manager! The hiring of Mr. Payne was not an open, transparent, or competitive process. The process of hiring Mr. Payne was extremely flawed. Our city has a more rigorous hiring process for the lowest level positions, as it should be. Staff takes direction from the City Manager who takes direction from the City Council. The City Council sets the policy, goals, vision, ordinances, etc. for the City – not staff. Specifically, what did Mr. Payne accomplish that was at the Council’s direction? I’m very curious. Does the report reflect one man’s mission or the City Council’s? I feel from some of the comments made, that staff with integrity, honesty, and dedication are being thrown under the bus in an effort to defend someone not qualified. You have to ask yourself, why?

    • Samuel says:

      Longtime Resident…

      Apparently Mr. Payne WAS qualified. He was duly appointed to the position by City Council.

    • Samuel says:

      Longtime Resident…

      Apparently Mr. Payne WAS qualified. He was duly appointed to the position by City Council. This is how it works with political appointees, regardless of which government it happens (State, Federal, etc.)

  11. Michael T Kovacs says:

    We might be better declaring “marshall law” and suspend/disolve this city goverment. This is just ludicrous how things have spiraled down hill.

  12. der says:

    Mr. Forschler came with his own set of side people. People like Mr. Shea and Mr. Payne. These people are extreme white wingers. I’m beginning to believe Mr. Tapio and Mr. Kovacs are too, that’s why they’re so upset with the firing of Mr. Payne. Otherwise, why would they be constantly trying to tear down the new council? Mr. Tapio is driving a tank that won’t stop (until he has destroyed everyone – on both sides), and Mr. Kovacs is all too happy to stand on the tank and yell “vengeance is ours!”. Earl Gipson is on the field holding a clipboard and a cup of liquid courage, smirking. I think Mr. Forschler is working behind the scenes stirring everything up. He needs to go.
    We often assume everyone is in their right minds, but maybe we shouldn’t.

    • Michael T Kovacs says:

      DER, Dont think so. You dont know me well then to make those statements. My wife is Asian and DER is a racist for making that statement.

      • Der says:

        Mr. Kovacs, I don’t make racist remarks, so I had no idea my name was offensive. It’s a nick-name. You should have said something to me sooner. I’ve made comments before. If my name offends you, I’m sorry. Please excuse my ignorance. I’ll go by resident or citizen or something.

      • Michael T Kovacs says:

        Der,

        Its not your name handle I commented on as being racist its this statement.

        “These people are extreme white wingers. I’m beginning to believe Mr. Tapio and Mr. Kovacs are too, that’s why they’re so upset with the firing of Mr. Payne.”

        That is where you went over the line and I responded with:

        “DER, Dont think so. You dont know me well then to make those statements. My wife is Asian and DER is a racist for making that statement.”

        Now put that in your pipe and smoke it for awhile!

    • D Tapio says:

      Der – there are numerous conclusions that are inaccurate in your statements.

      It’s highly likely the previous interim city manager was forced out unjustly and almost no one understands the full story. I thought it was unfair and plan to tell that story at a future date once I have compiled more information.

      I have no intention of tearing down the new council – quite to the contrary. My intent is to remove obstacles that have been put in their way by some staff and other council members.

      Let’s expose and get rid of the subversive activity going on behind the scenes and focus on real issues facing the city.

    • D Tapio says:

      Der – there are numerous conclusions that are inaccurate in your statements.

      It’s highly likely the previous interim city manager was forced out unjustly and almost no one understands the full story. I thought it was unfair and plan to tell that story at a future date once I have compiled more information.

      I have no intention of tearing down the new council – quite to the contrary. My intent is to remove obstacles that have been put in their way by some staff and other council members.

      Let’s expose and get rid of the subversive activity going on behind the scenes and focus on real issues facing the city.

  13. Melissa says:

    Misty are you a Seatac resident? What makes you think there’s not a competent person to work for the city? That’s a bit of a crazy statement! There are some who’ve commented right here that are more than capable of working a city job. As far as ungrateful citizens??? Obsurd! The old council and a few still on the council left the new majority a stack of unnecessary problems. They’re the selfish inconsiderate group of people.

    • Mysty Beal says:

      Now, no, I’m not, but used to be. I wasn’t implying that there is no one in SeaTac qualified for the city staff positions, but don’t understand why, if there are so many, why most city workers live outside SeaTac. These people work hard, and are too often scape-goated for things they do not do. Real hard to want to work while constantly being vilified.

  14. Samuel says:

    Wait a minute…

    I just read that investigation in its entirety and don’t see ANY evidence of “discrimination.” What did Payne do to actually discriminate against whomever? I’m not seeing it.

    Is this one of those things where somebody is guilty because they are accused? Looks like shoddy reporting to me or a total lack of critical thinking.

  15. Chuck D'Arielli says:

    der why not just use your real name what are you afaid of?