Probe: No retaliation by Wilkinson
Valenzuela accused former city administrator of taking action against him
Editor’s note: This is the first of a three-part series on the findings of an independent investigation on allegations made by Sgt. Henry Valenzuela against then City Administrator Greg Wilkinson. This part focuses on the retaliation allegation; the second and third parts focus on the other allegations and reaction from Valenzuela and Wilkinson.
An independent investigation requested by Yuma Sgt. Henry Valenzuela found no wrongdoing on the part of former City Administrator Greg Wilkinson.
Valenzuela, one of Wilkinson’s most vocal critics, alleged that Wilkinson had retaliated against him by preventing him from receiving an award. However, the investigation found no evidence of retaliation or that Valenzuela had suffered “material harm” due to the award denial.
On April 9, Valenzuela filed an internal Human Resources complaint against Wilkinson alleging that the administrator had retaliated against him by ordering then Police Chief John Lekan not to award him a Sworn Supervisor of the Year award and creating a hostile work environment because he raised questions about the city’s finances.
Monica Welch, the city’s director of human resources, hired Pamela Walsma of the Yuma law firm Hunt, Walsma & Gale to conduct an independent investigation of the complaint submitted by Valenzuela.
During the investigation, Wilkinson announced his retirement on April 25, following pressure from citizens. Valenzuela requested that the investigation be continued, and Welch asked the law firm to complete the investigation.
According to the report, Valenzuela alleged that the “hostile and retaliatory treatment” had caused him “difficulty in his employment with the Yuma Police Department, publicly questioned his integrity and caused fear due to threats of physical violence.”
Valenzuela asserted that the alleged retaliation was a result of his asking questions, making presentations, posting videos on
YouTube and questions on Facebook regarding the Pacific Avenue Athletic Complex and city financial issues.
The report explained that Valenzuela took an interest in the city’s finances after being assigned to prepare and present a police pay plan, which included identifying funding sources and reviewing the city finances and budgets.
Walsma’s report dated June 11 noted that as part of the investigation she reviewed Valenzuela’s complaint, the police department’s policies and award recommendations, personnel rules, Valenzuela’s annual evaluation, state statutes, human resources policies, memos, emails and correspondence.
Walsma interviewed Valenzuela, Wilkinson, now retired police chief Lekan, Police Chief Susan Smith and Welch.
Valenzuela identified eight actions that he believed Wilkinson took against him. Walsma’s sixpage report lists each action and her findings. This story focuses on the retaliation allegation.
RETALIATION ALLEGATION
Valenzuela alleged that Wilkinson retaliated against him by ordering that he be denied the YPD Sworn Supervisor of the Year award.
According to the investigative report, after a YPD committee recommended Valenzuela receive the award, Lekan contacted Wilkinson due to the controversy. Typically, three individuals are nominated for each award but only Valenzuela was nominated for this award. Lekan told the investigator that he had final approval of the award by policy.
The investigator noted “some difference of opinions regarding the subsequent conversation” between Lekan and Wilkinson. Lekan believes he was directed by Wilkinson not to give the award to Valenzuela and Wilkinson believes that Lekan declined to make the decision and passed the decision to him. Wilkinson stated that he ultimately approved or disapproved awards and he did not disapprove of this award to Valenzuela.
One thing was clear, Walsma said: Lekan, Wilkinson and Smith all believed that granting the award to Sgt. Henry Valenzuela would cause some dissension among the City Council members, department heads, etc. “Some individuals thought that possibly some officials and police officers would not attend the awards ceremony if Sgt. Henry Valenzuela received the award,” the report states.
The award provides no money or other employment benefits and does not increase the likelihood of promotion, Walsma noted. Valenzuela indicated that he believed awards did impact future evaluations and promotions, but this was not supported by the investigation. Lekan indicated that an award could be considered in a promotion but was not a definitive or determining factor.
“BLURRED LINES”
Walsma noted that Wilkinson and Valenzuela clearly differed in opinion regarding the PAAC, city finances and the police pay plan, which led to a “very public controversy” and caused tension between the YPD and city administration and department heads as well as affected city employee morale.
The report pointed out that while Valenzuela took steps to voice his opinions and took actions as a private citizen, he initiated his reviews of the city finances as a member of the YPD Pay Plan Committee. He was also recognized as a YPD employee on the radio and there was community knowledge of his work for the police department.
“As a result, this blurred the lines between his raising issues as a private citizen or a City employee,” Walsma stated.
She noted that the issues raised by Valenzuela were of public concern and subject to First Amendment free speech rights. “However, all speech on matters of public concern are not always protected. Courts look at various factors including interference with work duties, creation of conflicts within the workplace, damage to loyalty and confidence, and a balancing test of benefit of the speech versus the burden to the government in fulfilling its responsibilities,” Walsma wrote.
As to whether the denial of the award constituted an adverse personnel action or material retaliation, Walsma reported: “There is no definition of a personnel action in the city administrative regulations although disciplinary actions are detailed in Policy No. 1 to include oral reprimand, written reprimand, suspensions, involuntary demotion and dismissal and Policy No. 8 addresses complaints without adverse action.”
She pointed out that state law defines “personnel action,” but based on the documents provided, “this complaint does not appear to fall within statutory requirements.”
Citing a U.S. Supreme Court case, Walsma stated that “anti-retaliatory provisions protect individuals not from all retaliation but from retaliation that produces an injury or harm. It must be a material adversary such that it would dissuade others from complaining about discrimination.
“In this matter, the denial of the award resulted in no loss of pay, promotion or any other negative personnel action. It does not appear that the denial of the award caused any material harm or injury to Sgt. Henry Valenzuela.
“Further, the dissension within the City Administration and City personnel and the blurring of the lines between speech as a private citizen or a YPD employee are factors which would support the decision of Greg Wilkinson not to grant the award at the time.”
Walsma concluded her report: “Based on the above and the documents reviewed and statements made in the investigation the denial of the award did not constitute a retaliatory act which caused any material harm to Sgt. Henry Valenzuela.”
The YPD Sworn Supervisor of the Year award was later awarded to Valenzuela by the new police chief.