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Re: “Emeryville City Council Meeting Hot, Hot, Hot

What follows is a letter sent to City Counselors on our hotel's behalf earlier today: May 3, 2007 The Hon. Nora Davis, Mayor The Hon. Ruth Atkin, Vice Mayor The Hon. John Fricke, Councilmember The Hon. Ken Bukowski, Councilmember The Hon. Richard Kassis, Councilmember Michael J. Biddle, City Attorney City of Emeryville 1333 Park Avenue Emeryville, CA 94608 Dear Councilmembers: A great deal of inaccurate information surfaced at Tuesday night’s meeting, and I want to take this opportunity to clarify our hotel’s recent decisions. At the same time, I must express my astonishment at several specific statements made by Councilmembers, statements that erased any lingering impression in my mind that the City’s ongoing investigation is being pursued fairly or objectively. There are four specific points I would like to call to your attention: 1. In dismissing the undocumented workers yesterday, Woodfin did not act in haste, or with contempt for the city’s urgency ordinance. Rather, we followed through on our obligation to comply with federal immigration law, as we have been telling this Council for months that we would do, both through direct communication with you and through the actions we’ve been forced to take in court. Last week, Justice Sabraw refused to extend the TRO, as the City had requested. She did so mindful of the fact that this would free Woodfin to comply with federal immigration law. She also noted that the city had been given ample time to complete its investigation. The suggestion that we should have continued to abide by the city’s urgency ordinance, rather than obey federal law, suggests that this Council believes its local measures should supersede the federal government’s, and we must respectfully disagree on that point. Last month, representatives from U.S. Immigration and Customs Enforcement came to our hotel and asked me to provide them with certain employment data as part of an audit. This underscored for all of us at Woodfin the critical importance of respecting federal law. ICE requested our cooperation, which included keeping the investigation confidential, so we were unable to communicate this fact to the City. This audit of our employment records and practices underscored the need to follow federal procedures. Remember: Employees had been given more than six months to resolve the issues and were unwilling or unable to do so. 2. The City is applying patently unfair and radically inconsistent double-standards on matters of timing and deadlines. Councilman Fricke admitted Tuesday that the Council had been derelict in its duties by failing to pass regulations and procedures implementing Measure C until 15 months after the Measure passed. This failure on the Council’s part created issues that ultimately resulted in employees filing complaints. Yet, the City has consistently asserted that our hotel should have complied with the Measure immediately after it was passed, even in absence of clear direction on how to do so. Nonetheless, in what we believe is a compelling demonstration of good faith, we have repeatedly changed how we managed our labor force in an effort to comply with Measure C as directives from the city trickled out to us. In a similar vein, The City wants to apply Measure C retroactively, but insists that its urgency ordinance be applied prospectively. The assertion that the TRO’s effective date was Feb. 7 rather than January 26, the date on which it was granted by Justice Sabraw, is nonsense. The order expired on April 26. We fail to see how the City can arrive at any other interpretation of the basic facts here. 3. Woodfin has gone to extraordinary lengths to accommodate the City’s investigation and worked diligently to provide all records requested. I have been working for months with Margaret O’Brien to respond to every request the City has made. It was not until Judge Sabraw decided not to extend the urgency ordinance last week that Mr. Biddle expressed any sort of frustration with our response. To clarify the order and timing of relevant events, I have included below a chronology that sets forth the precise sequence of occurrences and actions relating to the document-handling issue. 4. Councilmembers’ statements on Tuesday night made it clear that the City’s investigation is being conducted with a presumption of wrongdoing. Councilmember Kassis actually told the workers in attendance, “We’re going to get you every penny you’re owed.” Councilmember Fricke went on at length about the importance of allowing all sides to get a fair hearing, then immediately noted a provision in section 10e of Measure C’s implementing regulations that makes so-called “failure to produce timely documentation” the basis for “showing that the allegations in the complaint are substantiated.” Such statements can only suggest to us at Woodfin that Councilmembers have already concluded, absent any actual evidence and in spite of voluminous proof to the contrary, that Woodfin has violated Measure C. It is enormously troubling to me that the Council appears to be getting limited information from its City Attorney, and grossly inaccurate information at that. I would urge you to consider the timeline attached here as you consider whether Mr. Biddle’s allegations of “foot dragging” on Woodfin’s part are truthful, or whether they are merely intended to deflect attention from his own office’s grossly incompetent handling of an investigation that should have begun months before it did and concluded, by a state judge’s own reckoning, by April 26. As always, I am available to you to discuss these and other matters. Sincerely, Hugh MacIntosh General Manager, Woodfin Suites Hotel Emeryville -- Timeline of events related to Woodfin Suites’ cooperation with City of Emeryville’s ongoing investigation August 11, 2006: The city sends a letter to all Emeryville hotels marking the beginning of its administrative implementation and enforcement of Measure C. The letter requests certain documents, and states that if the documents do not exist, estimates of the square footage of guestrooms cleaned must be provided. September 11, 2006: The hotel’s interim General Manager, MaryBeth Smith, responds by stating that Woodfin would gather and provide documentation covering records kept after August 11, 2006. Ms. Smith relied on the City's statement that Measure C was not being enforced prior to that date. October 9, 2006-Present: Hugh MacIntosh arrives as General Manager of Woodfin. Mr. MacIntosh works cooperatively with Margaret O'Brien to produce records requested by the City. Ms. O'Brien never expresses any concern about Woodfin's cooperation with her requests. The documents are produced to Ms. O'Brien on a rolling" basis as they can be located and sent. November 28, 2006: The City receives 12 complaints against Woodfin for alleged violations of Measure C. December 19, 2006: The City sends a letter notifying Woodfin of receipt of the 12 complaints but does not disclose the names of the complainants. December 26, 2006: The City passes urgency ordinance 06-023 in an effort to create a mechanism to handle administrative complaints and codify Measure C. The City receives 4 new complaints against Woodfin. December 27, 2006: The City sends a letter to Woodfin notifying it of the 12 complaints from November 28 and the 4 new complaints from December 26. No names are given to Woodfin in this letter. January 5, 2007: The City receives another complaint against Woodfin. January 23, 2007: Mr. Katz, Mr. Batt and Mr. MacIntosh meet with Emeryville City Attorney Michael Biddle. During this meeting, Mr. Biddle informs them that the City was only looking to enforce Measure C effective effective August 2006. Woodfin never received any other indication from the City that it was seeking documents prior to August 2006 until March 27, 2007. January 26, 2007: Alameda Superior Court Judge Bonnie Sabraw grants a Preliminary Injunction with an expiration date of April 20, 2007, that prohibits Woodfin from terminating any of the complaining employees who are Social Security no-matches. This order is later extended by stipulation to April 26, 2007. February 5, 2007: The City sends Woodfin a letter notifying it has hired Patricia Prince as a neutral fact finder to investigate the complaints alleging retaliation. THIS IS MORE THAN TWO MONTHS AFTER THE FIRST COMPLAINTS HAD BEEN FILED. All complaint files are exactly the same. February 6, 2007: The City passes the implementing regulations for Measure C, 07-31 which makes December 2005 the effective date for Measure C. February 13, 2007: Investigator Patricia Prince sends a letter to plaintiffs' counsel Andy Kahn indicating she is commencing her investigation of the retaliation complaints. Ms. Prince attends the depositions of Colleen Manzer and 4 complainants: Maria Martinez, Marcela Melquiadez, Luz Dominquez and Rodolpho Nunez. February 19-25, 2007: Ms. Prince goes on vacation and no investigation is done by her this week. February 2007 through March 27, 2007: Woodfin fully cooperates with the investigation by producing 1,986 pages of records consisting of housekeeping records, personnel files, employment handbooks, e-mails and correspondence concerning the handling of Woodfin's nationwide policy as to SSA no-matches. • During this period, Woodfin makes the complaining employees available and even drives them to interviews with Ms. Prince. In addition, Woodfin offers to produce numerous executives and employees for interviews. • Woodfin flies out two of its Regional General Managers MaryBeth Smith and Mark Nicolini for interviews in San Diego with Patricia Prince. Woodfin's Vice President of Human Resources and Training flies to Emeryville to be interviewed by Ms. Prince, and Woodfin offers its Chief Operating Officer, James Batt, for an interview. Ms. Prince ultimately declines to interview Mr. Batt. March 27, 2007: At mediation, Woodfin is informed that the city had completed its investigation of the retaliation complaints. The mediation does not resolve in a settlement. Immediately afterward, the city requests documents from Woodfin that predate the period of active enforcement that purportedly began on August 11. April 4, 2007: Mr. Katz sends Mr. Biddle an e-mail requesting evidence that the City had, prior to March 27, ever requested housekeeping documents from Woodfin for the time period preceding October 2006. The city never responds directly to this request. April 6, 2007: Mr. Katz sends Ms. Prince additional records in accordance with her request. April 26, 2007: Alameda Superior Court Judge Bonnie Sabraw denies the City's request to continue a temporary restraining order forcing the company to employ undocumented workers. April 26 and 27, 2007: Patricia Prince completes her interviews of Woodfin management personnel for her investigation. Ms. Prince indicates that the only things she has left to do are follow-up telephone interviews with witnesses. Mr. Katz indicates to Ms. Prince that Woodfin would provide her with a privilege log and other requested documents. April 27, 2007: Woodfin receives notice from Mr. Biddle that “the city’s patience has come to an end,” and makes a variety of false statements and mischaracterizations regarding Woodfin’s behavior and accommodation throughout the city’s protracted investigation. Mr. Biddle, on behalf of the City, gives Woodfin to the end of business on May 1, 2007 to produce all of the outstanding requested documents. April 27 and April 30, 2007: Woodfin produces additional responsive documents and offers to produce more as soon as they can be prepared. April 30, 2007: The City Manager issues a Notice of Violation of Measure C against Woodfin in response to the hotel’s decision to place workers on unpaid leave to give them additional time to obtain information showing their right to work in the United States. April 27-May 1, 2007: Both Mr. Katz and Mr. MacIntosh express surprise at Mr. Biddle’s short notice of the deadline and offer to continue to produce documents to the City as quickly as possible. Woodfin offers to continue to work cooperatively with the City to produce the information. May 1, 2007: Mr. Biddle summarily rejects these offers and indicates that no further documents will be accepted after May 1, 2007.

Posted by Hugh MacIntosh on 05/04/2007 at 10:57 AM

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