Stop Attacking Volunteers
One of the more freakish sideshows brought on by the controversy involving Gloria Squitiro has been the tendency to attack her volunteer status, and, by extension, the standing of volunteers working for the good of our city. Councilman Ed "Ought to Know Better" Ford has sought an unworkable ordinance threatening volunteers with personal liability for discrimination claims, and a google search for "volunteer" and "Squitiro" opens a treasure trove of muddled thinking and short-sighted over-reaction.
Regardless of the feelings about the Mayor's wife and the (unproven, unanswered) allegations made against, her, the attacks on volunteer roles in City Hall are threatening to rob the City of its ability to function.
In seeking to impose personal liability on all volunteers, Ed Ford would eliminate any chance of getting intelligent people to serve as volunteers anywhere in the City. Would you risk your house for the honor of serving on the City Market Advisory Committee, if you knew an upset person might sue over a decision made by the group? Would you volunteer to serve as a referee for Night Hoops if you realized your "charging" call might force you into bankruptcy? Who would be foolish enough to serve on the Downtown Minority Development Corporation?
The city relies on volunteers in countless roles. The willingness of people to help their community is something to celebrate. Even when one person in a volunteer role is alleged to have performed improperly, wise governance requires that we focus on the behavior, and not the volunteer status of the actor.
Labels: council, kansas city, nonprofits
posted by Dan at 6/22/2008 10:01:00 AM
31 Comments:
Good post, Dan. Perhaps a better approach would to enact an anti-nepotism policy? I.e. doesn't prevent anyone from volunteering, even full-time, but just held to the same "hiring" standards with regard to being related.
You have a decent point here, though I think your attack on Ford is more misguided than his proposal. He is clearly trying to address what has become a problem and a distraction for our city.
It would make more sense for the city council to draw a clear distinction between duties that can be performed by volunteers and by employees. Volunteers should not be allowed to directly supervise staff for example.
And within reason, the same nepotism rules that apply to employees should apply to volunteers. For example, a member of the mayor's family could still volunteer with the city, but not in the mayor's office.
You're right that Ford's proposal may cause more headaches than it will resolve, but I sincerely hope your point isn't that nothing should be done. It's painfully obvious to everyone but a very few that the situation with Gloria is out of hand and something needs to be done.
At the end of the day, if Funk won't do it, then the city council will have to "grow a pair" for him.
Every place I have ever worked has had a Code of Conduct to which everyone was expected to adhere.
It's ususally pretty simple, common sense type stuff. You can't be under the influence of alcohol or drugs at work. You can't bring explosives or firearms into the work place. You are expected to conduct your affairs in an honest and ethical manner.
And most places also express a zero tolerance policy regarding racsist behavior and sexual harassment. They can be cause for immediate dismissal.
Surely anyone volunteering their time for the city would be expected to conduct themselves by the same standards as an employee.
Surely a volunteer would understand that their conduct on behalf of the city reflects on the city itself.
This is not rocket science. It's not even political science. It's just plain common sense.
XO: Dan wasn't getting at a code of conduct (although I agree with your points with regard thereto). He was arguing that volunteers should not face personal liability for actions conducted within the scope of their volunteer duties.
(Dan -- I assume that even you don't think certain things should result in volunteer being shielded from personal liability, thus I added the "within the scope" phrase -- let us know if I'm wrong)
XO - I don't disagree with you, though I think you may be missing the point. Yes, by all means, volunteers should be expected to perform their jobs within expected norms of conduct, and, in many (most?) instances ought to be required to sign a document promising to uphold those norms.
I don't think anyone has proposed shielding anyone from liability, though, in practice, everyone is. If XO goes on a racist rant at work and generates a valid claim (not that he would - just an example here), his employer winds up paying the judgment and he winds up getting fired. Similarly, if XO volunteers as a ref in Kansas City's night hoops and gets himself and the city sued for racist behavior, the city winds up paying the judgment.
I can't think of any instances where a company or volunteer entity pursues its own agent for exposing it to liability for discrimination, though I haven't investigated the issue.
The key point here is that whole proposal is insane. To recap:
"The proposal would require elected officials, employees and volunteers to repay the city if their actions result in penalties either in court or in a settlement."
Who in their right mind would work for a private or public organization and be subject to this liability, in a formal way?
No private corporation would adopt a policy like this - because it would simply drive the best talent away from them. Why would anybody work for an organization that could hold them personally, financially liable for any frivolous claim? Especially when the employee, volunteer or official has no say in how the claim is handled?
This has less to do with volunteers and more to do with the fact the proposal is insane. A city attorney and city council can choose to settle a frivolous claim out of court for $300,000, and then go after an employee for repayment?
It’s crazy to subject volunteers to it, and its even more damaging to subject employees to it. Civil suits can be brought against anybody, right? Civil suits are one thing, this is another. The key thing here is a legal path from the organization to the individual that is formally established by this proposal.
No one, and I repeat no one worth their salt would work for an organization that would adopt a policy like that.
Ford's proposal will never be adopted.
Having said that, Gloria's direct negative impact (unlike this proposal, which won't go anywhere) on volunteerism will be felt in this city for years, unfortunately.
Dan I'm reading your and XOs discussion and both make interesting points. I understand your defense of volunteers but your stance on this situation is confusing.
Are you saying that you agree that the City should defend Squitiro, but by your adhere to policies comment you are also agreeing that Squitiro must go due to her consistent inability to adhere?
Just curious to read your answer. Thanks.
I think the city needs to defend Gloria just as it would need to defend a volunteer referee. I also think the city ought to come up with standards of conduct for volunteers, if it does not already have them. Right now, I suspect (without being certain) that it has no such standards, in that most situations can be handled by the fact that volunteers normally serve at the pleasure of the person in charge, and can be dismissed by that person pretty easily, if that person chooses.
Such a set of standards could also come in handy, by the way, if a volunteer board member starts behaving in a manner that causes problems. I don't know what, if any, mechanisms are in place to handle that situation.
All that said, I am not agreeing that "Gloria must go". I've never believed that anyone, employee or volunteer, should be dismissed on the basis of unproven allegations.
There are many issues with the Gloria situation.
First, Gloria is unlike any other volunteer. The code and charter outline specific roles. Racist behavior and sexual harrasment are not part of those roles. I don't see anything wrong with holding any volunteer responsible if they overstep their role as prescribed in the charter.
Second, the charter does not have a role for somebody like Gloria. Her position can best be described as "at will." That being the case, the city is liable for her actions because it failed to properly outline a role for her and to control her activities. Funkhouser, as her direct "supervisor", bears responsibility for that.
Third, Gloria is like no other volunteer who does not have a charter/code prescribed role. Most "unclassified" volunteers usually have minor roles, like filing and sorting. Gloria is like a quasi chief of staff. She interviewed staff (and did ask one person her age). She writes a weekly newsletter outlining her husbands activities. She attends most meetings with her husband. She vets appointments for boards and commission. She has free parking, an e-mail account, a phone line, a computer, a desk, and her name appears on the mayor's staff directory. She is a volunteer in name only. She is more like a staff member.
Fourth, there's nothing "voluntary" about Gloria. She feels entitled to the role. She is not doing this because she has some calling to public service. She has had a taste of power and cannot let go.
I, for one, I'm tired of the in-fighting that this has created. This is a do-nothing council and Mayor. Funkhouser would be well served to get rid of his wife. Until he does that, he will continuously face uphill battles on every issue.
First, Gloria must go. Funkhouser made a big mistake by allowing her the role he did. It may already be too late but if he doesn't get her out of the office now, he will not be reelected.
Second, there needs to be a volunteer handbook which outlines unacceptable behavior with the notation that people who do not follow the rules will be dismissed. It should be the job of HR to write it and to oversee it just as they would any issue with any employee.
End of story. No big deal.
I think things are getting a little confusing.
Ed Ford's proposal makes no sense because it subjects city employees and city officials to an undue, inappropriate financial liability. Volunteers may be a part of the proposal, but the people subject to the worst effects of this proposal are employees and city officials.
Gloria's situation should be considered separately because it existed prior to Ed Ford's proposal, and will exist after his proposal is dismissed by council.
The conundrum is that some people call Gloria a volunteer, and we don’t have an independent model of volunteers are their ability of subject their organization to legal liability. I’ll provide one.
Gloria's position and day-to-day activities on the 29th floor are those activities of managing a staff - typically a paid position in most organizations.
“Volunteers” typically assist city staff, they do not direct, interview and hire and manage city staff on a day-in, day out basis. Volunteers typically do not interpret and apply policy on behalf of the city. They set up table for events. The write invitations. Gloria, on a daily basis, manages, hires, directs staff; she interprets and applies policy – whether that is HR policy relating to hiring, or the development of staff reports and support for the Mayor. aThis is not typical volunteer activity. I challenge someone to go to any other city in America and find a "volunteer" doing what Gloria does daily.
She's only a volunteer because that's the legal advice the Funkhouser's received. The Funkhouser's proactively sought legal advice because they feared nepotism charges.
Gloria is specifically not paid in order to avoid nepotism charges.
Anyways, I argue that the pay status of a volunteer is secondary to the role the volunteer plays in the organization.
It's hard to find a definition of volunteer, and some volunteers are paid. Here's a perspective:
"As far as I know, there is no universally-accepted definition of
the term "voluntary" in the US. It is *generally* used to mean "uncoerced"
and "unrenumerated" -- but not always. For example, the US has historically boasted having a "volunteer" or citizen army -- but people who voluntarily enlist to serve as soldiers receive pay for doing so. Similarly, our national program of voluntary service -- Americorps -- pays its volunteers in cash and/or university scholarship support."
Along these lines I would suggest that "volunteer" and legal liability is more a function of what we are asking the volunteer to do. If there is "volunteer" manager who is uncompensated but acting in an official capacity (e.g. enforcing the rules and directing paid employees; interpreting and applying organization policy) then the volunteer is officially representing the city, and whence can subject the organization to liability and should be defended.
However, if the volunteer was helping set up tables for a meeting, and said something offensive to an employee, the volunteer would not subject the city to any liability.
Under this line of reasoning it makes sense that the city has to defend Gloria (not should, has to). However, if we agree on this then we start going down that slippery slope towards a very rational argument for nepotism.
UIU'm not saying I like it, I'm just saying that Gloria's functioning in an official capacity. Very unfortunately for everybody.
Sorry for the near unintelligible post above.
The line in the fourth paragraph should read "... we don’t have an independent model of volunteers AND their ability TO subject their organizations to legal liability. I'll provide one."
Blogging while I'm trying to mind the kids....
Anon above: Why do you call it a do-nothing council? Hasn't Beth accomplished a lot?
The city has liability regardless of whether Gloria is an employee or volunteer because the city knew there was a complaint and purportedly took no action. If an employee reports up about discrimination, her employer must take some action to make a reasonable investigation in order to shield itself from liability.
A legal inquiry for employer liability rests on the employer's processes and acts after it learns that there might be a problem.
This claim is that Bates reported up regarding harassment. According to her, nothing was done, so she reported out to the EEOC. Maybe the city can show that they did take action in response to the discrimination claim - but I don't think a friendly chat between Ed Wolf and Gloria regarding the complaint will be considered sufficient.
Wife -
You're assuming there is merit to the discrimination claim . . .
Oh yeah – I almost forgot the other half…
Then Funk made the ill-advised ultimatum to Bates – move to a different department or lose your job. This was the same week that the Supreme Court determined that Section 1981 anti-discrimination law implies a cause of action for retaliation claims - regardless of the outcome of the underlying discrimination claim. The rationale behind this is to keep employers from disouraging reports of discrimination by taking adverse action against reporting employees. This means that the city has potential liability for retaliation, unrelated to anything Gloria may or may not have done.
Ed Ford knows - or should know - that his proposal would not shield the city from liability. This is sheer opportunism on his part.
All of this talk misses the central point.
Anyone with over 32 brain cells, legal counsel aside, should have seen what a bone-headed move it was to place the mayor's wife in a position as de-facto chief of staff while insisting she was just a volunteer.
That was a big enough mistake in and of its own.
But then to insist on keeping her in that position when her alledged behavior has left the city liable for financial damages?
That's just irresponsible and shows an incredible lack of judgement.
At the very least she should be removed from the office until the lagal claims have been resolved.
Wife -
Fortunately, the Mayor offered Ms. Bates an equivalent job in a different department at the same rate of pay, so the retaliation case you cite doesn't apply.
For clarity's sake, and for those who would be surprised to see Robin miss that point, I should point out that "the wife" is not my wife.
Ford has been kooky for a long time because he has lost the public interest-orientation which made his political career and kissed the ring of developers who gave him power; however, Dan has to go off the edge of the Earth in defense of Mark and Gloria.
As you describe the mayor's offer Dan, it is clearly not an equal exchange. Just as the famous civil rights case ruled that there are intangible benefits to attending one law school or another, even when the state rules that both schools are equal in standing and education, the same can be said with concern to working in the Mayor's office and working in some other city department. What's next Dan -- An argument on reviving the The Plessy Doctrine?
And of course Dan, as long as you want to talk about assumptions, you are assuming that Ms. Bates was not adequately doing her job and in some way deserved the effective demotion in standing which the mayor tried to force upon her.
Furthermore Dan, you are assuming that the mayor did not take vindictive action against a long time employee in order to placate the whims of his wife who is acting as a volunteer in order to evade a state nepotism statute and has exhibited examples of bigotry and mental illness.
Of course, asking his irritant wife to leave City Hall where she has no public charge or standing is still unthinkable to Mark, which I think means that Mark should be personally and solely responsible for the defense of Gloria and any settlement payments agreed to by the parties or ordered by the courts.
If I simply walked in City Hall and volunteered to act as a senior policy maker, I would either be removed from the building or someone would approve my power grab and allow me to stay. That is basically what Gloria did (in addition to evading the nepotism statute which says she cannot be there) and Mark approved her made up role in city government; therefore, Mark should be liable for her actions.
If Mark is stubborn enough to defend Gloria's serial outrageous behavior then he should be stubborn enough to live in a tent when all of his assets are taken from him.
Nice try Dan but once again your blind loyalty to a failed political infatuation has forced you to engage in willfully misleading statements.
PP -
Believe it or not, I'm actually going to agree with you that my last post did include assumptions which have not yet been proven.
Good catch.
IF it is shown that she was offered an equivalent job, THEN she will have no retaliation claim.
The rest of your tirade, though, is pretty much bunk.
If it were only that easy Dan! Were you the Mayor's advisor on this one?
The offer of another position for equal pay is not an affirmative defense in a retaliation claim. The legal standard isn't "if there is an offer of another job at the same rate of pay then retaliation doesn't apply".
The standard in Court is whether there was an adverse employment action. A job in the water department is not as prestigious as a job in the mayor's office - even at the same rate of compensation. An ultimatum to accept a less prestigious position or forfeit employment is an adverse action.
Under the right circumstances an "adverse" action can be something as small as moving someone out of a corner office into a cubicle. The standard is not measured by compensation - it is measured by whether the acts taken by the employer are "adverse".
The burden is on the city to prove that the adverse action was not in response to the discrimination claim.
What point am I missing on the retaliation claim?
Wow, wife, you work cheap!
Isn't whether an action is "adverse" a factual question, to be decided by a judge or jury?
Are you claiming that the opportunity to work in the best Mayor's office in history is a prestigious honor, as a matter of law?
That's about enough free legal advice . . .
$250/hour -
Sorry, dude or dudette, I only pay insurance company rates.
Let's keep the conversation focused. The post is about volunteers and the city.
If gloria was operating in a capacity where her actions expose the city to liability - which they have - what does that say about Gloria's role at the city?
The City council has a right to remove anybody, and I mean anybody, whose actions on behalf of the city put the city at an inappropriate risk.
Pay has nothing to do with it, as we are learning. It's what you do and who you officially represent, not how much you make.
Remember, if Gloria was just writing thank you letters, we would not have this lawsuit.
$250 an hour -
My comment was not legal advice – which I am not qualified to give. It was merely an explanation of why the retaliation claim can not be defeated simply because Bates was offered another job for the same pay. - as dan suggested.
And yes, whether the action was "adverse" is a factual inquiry. That a factual inquiry must be made defeats the proposition that the merits of the claim can be determined as a matter of law.
However, I imagine that the city-funk-defendant in this case will claim that notwithstanding a factual determination on the "adverse" nature of the act, it was not in response to the discrimination claim and therefore not retaliatory.
FYI -
None of the above is legal advice.
I am not arguing for the truth of the matter asserted in the lawsuit. My point was:
If the factual determinations fall in favor of Bates, the city is not shielded from liability. Ford proposes that the city not accept secondary liability (respondeat superior) for the acts of its volunteers, but does not eliminate primary liability for its own wrong-doing (its acts or omissions in response to the pre-lawsuit complaints).
Ford’s proposal is an opportunistic attempt to position himself as the anti-Funk. Even if the city could bring a subrogation claim against Gloria, it would still have liability for its own acts – outlined in my earlier comments. He appears to be taking advantage of the ambiguous role of volunteers to prove a point in a political battle. The taxpayers gain nothing in the proposal.
I’d prefer that he spearhead an effort to create a very detailed process for handling employment complaints in the city before the escalate to lawsuits. Maybe one that includes training for elected officials and their appointees?
Dan is right that the changes to volunteer liability are bad.
I don't want to have to hire an attorney because some kid sued me over a bad umpire call at a game I was volunteer reffing for.
Just because Gloria is a screw up, doesn't mean we should throw all other volunteers under a bus.
On another note, does HR or the city council have the power to remove Gloria? Lets say Funk looses this lawsuit. Could the city just pay the bill and Funk still insist that Gloria stays in office?
Is Funk a defacto king that can keep whoever he wants on his staff?
Funk clearly made a very bad decision and put the city at unneceesary risk.
However, everybody will be talking at cross-purposes until we have a common definition of what a volunteer is and what a volunteer does.
How can we say volunteers are being mistreated (potentially) when no one knows or agrees to the definition and parameters of a "volunteer".
"I know if I see it" rationale ain't gonna work here.
Here is a tip for Kansas City and Jackson County voters: find out who Nutter is backing and then vote for anyone else.
XO is exactly right with his 11:18pm commment.
Dan you said "I've never believed that anyone, employee or volunteer, should be dismissed on the basis of unproven allegations"
Not even as XO puts it until this is resolved? What about once it is proven? Or what about if they settle thereby giving merit to the case that the allegations are true?
Also why are you saying that the case doesn't have merits when the Mayor and his wife both admitted to saying it but put some silly spin on it saying that she ends all of her sentences with -eee?
What has happened to taking responsibility for your decisions. Why do we and other constantly discuss the lack of responsibility being taken by those in the Mayor's office with out requiring that either responsibility be accepted or "we the people" will take action.
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