Zen and the Art of Mayoral Maintenance 

Jacques Barzaghi is back at Jerry Brown's side after being sent to the woodshed following an embarrassing sexual harassment case. Officials say this should keep Barzaghi out of trouble and them out of court. But other experts aren't so sure.

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The Tribune prevailed in court and wrested the most important information out of the city. It got a confidential memo from City Manager Robert Bobb to Barzaghi outlining the nature of the allegations against him, the results of the city's confidential inquiry, and exactly what kind of discipline was to be meted out. Although written in dull bureaucratese, the essence of the memo was stunning. City officials had learned through the investigation that the mayor's closest aide had harassed a number of women during his employ. "The results of the investigation show that you acted in an inappropriate manner in your workplace in violation of city policy," Bobb wrote Barzaghi. "You exercised very poor judgment in your interaction with several female employees."

The punishment included a three-week suspension without pay, mandatory "attitudinal counseling," and attendance in sexual harassment training workshops. It also required Barzaghi to avoid all one-on-one contact with women in City Hall and to limit his dealings to three named female employees. The last two requirements had a sunset provision and were only temporary while the city finished investigating the matter. Bobb and Russo had concluded that, although the victim in the matter was hardly flawless, some of her allegations about Barzaghi were accurate.

The Tribune failed, however, to get the actual records of the investigation in which the nineteen women were interviewed. The city argued that its release would violate the women's right to privacy, since many of them still worked at City Hall. The Tribune, meanwhile, asked for a redacted version of the report and promised to not release any details that would identify them. A lower court ruled in the city's favor and the Tribune appealed. But the issue was never resolved because the paper's lawyer missed a critical deadline and the whole issue was thrown out of court.

One aspect of Barzaghi's discipline not discussed in the memo was his demotion from codirector of the Craft & Cultural Affairs Department to senior adviser to the mayor. He was demoted, Russo says, so he wouldn't be in a supervisory position and able to harass other women. "He can't say who's fired or who stays and he doesn't do reviews, which substantially improves the city's position against legal claims," Russo says. Brown, meanwhile, insists that Barzaghi's new job is unrelated to the sexual harassment fiasco.

Another matter of debate is whether Barzaghi's indiscretions should have gotten him fired. Under state law, the bar is set very high for proving sexual harassment and the perpetrator's behavior must be severe, unwanted, and pervasive. If, as Russo and Brown assert, no woman had ever before complained about Barzaghi, it's unlikely his conduct ever reached that threshold. However, Barzaghi's behavior certainly violated the city's own "zero- tolerance" policy, which prohibits all sexual harassment and includes a range of disciplinary options.

Under the city's policy, offenders are to be disciplined in a way that ends the harassing or discriminatory conduct and deters others from doing the same. Remedial action may include discipline and possible termination depending on the "nature, frequency, and severity of the conduct." The policy leaves open just what is meant by "severe" and does not spell out whether "frequent" is once a day or once an hour. Whether Barzaghi's discipline was sufficient under this policy may never be known outside City Hall, given that the details of the investigation remain confidential.

His aides' travails are a tough subject for Mayor Jerry Brown. He discusses the topic in a way that makes it clear he's not eager to dissect it too thoroughly. "The city manager said he violated city policy and showed poor judgment," Brown says. "He did that. Most of this was banter. There's a huge gap between what Jacques did and some irredeemable offense that requires termination."

But probe Brown for details and he gets a little steamed. He believes his friend's career was railroaded by a liar. "I thought there were serious credibility problems with her. ... Our investigators contacted the university in Mexico where she said she got a law degree and they had no record of her attending the school or ever getting a law degree," he says. "That really undermines a person's credibility when they put on a résumé something that isn't true."

As to the other women who came forward to complain about Barzaghi, Brown simply states, "I don't believe that's true. ... There are different sides to the story." Without question, the mayor insists that he has never, ever heard his old pal being sexually inappropriate. But such conversations certainly occurred in his office, Brown says. "I've heard sexual comments in the office by some of the women who were interviewed."

Although Brown and Russo assert that the city's Barzaghi mess has been tidied up, several outside legal experts believe Oakland remains legally vulnerable.

Linda Krieger, a professor at UC Berkeley's Boalt Hall School of Law who specializes in sexual harassment, insists that Barzaghi's career downgrade does little to limit the city's liability.

"The notion that somebody has to be a supervisor to create liability is wrong under state and federal law," she explains. "Under California and federal law, any employer can be held liable for a hostile work environment created by anybody in the workplace." In other words, it doesn't matter if the offender is a janitor or the mayor: A city has an obligation to protect its employees from harassment.

"The city's obligation once it's aware of the situation is to take effective remedial action," concurs University of California, Los Angeles law professor Chris Littleton. "What is effective is determined by the circumstances. The city could be liable in the harassment of a co-worker if it hasn't taken steps to create a harassment-free workplace."

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