Zinkin Questions Oro Valley Council’s “Secret File”

On Wednesday December 2, the Oro Valley Town Council was asked to reconsider the action taken against Councilmember Mike Zinkin at the November 18 meeting for his allegedly offensive remarks. The request for reconsideration, proposed by Councilmember William Garner, was rejected in a 4 to 2 vote.

The vote did not come as a surprise to Town residents, who have watched Mayor Satish Hiremath along with Vice Mayor Lou Waters and Councilmembers Joe Hornat and Mary Snider conduct a protracted assault on the watchdog Council members. Zinkin, a jovial, but hard-charging member has been the primary target of the group for his exposure of their failing business decisions that have led to a sales tax increase and growing financial losses.

Oro Valley Council To Reconsider Zinkin Action

After Hiremath, Waters, Hornat, and Snider barely survived the November Recall Election, the attack on Zinkin ramped up. What appeared to be politically motivated complaints were filed against Zinkin for various comments he has made to or about employees.

The perception of political motivation is based on the fact that – in some instances – all of the members of the Council, and staff members appeared to find his comments humorous.  Despite the fact that nothing was said in his response to his comments when they were made, the majority voted to punish Zinkin for the alleged transgressions.

Zinkin issued a formal response to the Council’s vote. It reads:

Mayor Hiremath,

This is a formal response to the communication that was placed in my office mailbox from you dated November, 23, 2015.  It is interesting that it was also mailed to me from the Town Manager’s Office on November 27, 2015.  As an aside, why is the Town Manager involved in a Council decision regarding another Council member, unless it is part of the “secret file” team that will be discussed later in this response?  Your communication to me refers to actions taken by the Council regarding my behavior.  As described below, your communication is full of untruths, misconceptions, finger-pointing, and is of questionable legality.

There are many references in your communication to the Town’s receipt of nine complaints against me over a three year period.  Six of those complaints occurred over 39 months ago. (The usual Statute of Limitations for serious misdemeanors is 36 months.)   I have admitted, and apologized for comments I probably should not have made during that time, all before October 2012.  The Town’s  investigation of my behavior (hereby referred to as the Squire Report) states:

1)   “Aside from these two incidents (one of which was significantly downplayed by Employee B, Employee A does not contend that the Councilmember has acted inappropriately toward her or in her presence since he was spoken to by the Mayor and Mr. Caton in August 2012.”

2)  “Employee D still wishes that Chief Sharp had not notified Mr. Caton”.  (This notification was nothing more than a politically charged communication to add to the “secret file” that was being constructed against me.) (Allegation 7)

3)  “Mr. Caton reports that no other employees reported inappropriate conduct from the Councilmember as of August 2012 or in the months following ” (note: this was 40 months ago) .

4)  Regarding the “Groucho Marx” joke – “No employees complained about this joke”.  I guess Mr. Caton was looking for more fodder for the “secret file.”

5)  “A recurring theme during the interviews was whether there was a political motive to the timing of the allegations and the allegations themselves”.

There was an allegation forwarded by Dep. Chief Stevens after I personally spoke to him about an excellent job one of his Sergeants did while consoling my neighbor who had just lost her husband.  I added that I thought because the Sergeant was a female, that it added to the compassion.  Mr. Stevens immediately emailed (for the “secret file”) that I was being sexist by noting that the Officer was a female. (Allegation  8).

The ninth allegation referring to my response to Mr. Stevens after his politically charged email stating that I probably would not meet with him is true.  After seeing his actions, I did not desire to expose myself to his prejudiced outlook.

You have failed to remember the Town’s investigation in December 2011 where it was alleged that “Ms. Watson complained about a hostile work environment based on gender….”  There were additional allegations that Ms. Bower was “screamed at over the phone” by Councilmember Hornat.   Both you and Mr. Caton are also tainted in this report, but the findings were that the allegations were not substantiated.  The Squire Report indicates that my behavior has been modified, something you fail to acknowledge.

You note in your communication that I was requested to complete sensitivity training.  This is categorically not true.   I was never requested to take any sensitivity training.   In 2012,  there was an email sent to all Council members by HR requesting that we all take a programmed study course in sensitivity.  I submit that I was the only member to take that course, which I completed on October 18, 2012.

The Squire report suggests that there be a voluntary Code of Conduct for the Town Council.  I am the Councilmember who requested that this item be placed on the agenda after conferring with the Town Manager and the Legal Services Director.  It was you and your colleagues on Council that rejected the idea of a Code of Conduct, even though it was the first recommendation from the Squire Report.

As I continue to read your communication, there is a note about professional behavior.  Who is defining the term “professional?”  Is it the person who at the Council meeting on October 22, 2013 publicly chastised Planning and Zoning Administrator, David Williams?  This individual said “I am lightly hitting you over the head because I don’t think that this should rise to the level of Council. We have other pressing things that we need to be thinking about and I do think that the buck should stop with you.  You get paid big bucks to make those decisions.”  Or, was it the individual that publicly embarrassed Town Attorney Tobin Rosen at the Council meeting on October 3, 2012?

Both the incidents cited above were covered by Legislative immunity, as were my statements on October  22, 2015.  For some reason the concept of Legislative Immunity was never mentioned during the November 18, 2015 meeting.  Had the HR Director, in concert with Legal, done things properly, they would have responded to Mr. Vella by noting that my comments were 1) covered by legislative immunity, and 2) were not comments that a reasonable person would find objectionable.  That would have been the end of it, but for some politically charged reason, you and the Town Manager have decided to pursue this matter in yet another attempt to assassinate my character.

The actions the Council took on November 18, 2015 were without precedent and have questionable legal ground.  What legal authority exists for the Council  to demand that I apologize, or that legally obligates me to do so?

Given the fact that the HR/Legal investigation found that my comments made on October 22, 2015, (which again were covered by Legislative Immunity, and which even you stated were made in jest)  would not be deemed offensive to a reasonable person, then for what reason am I to apologize?  I am not beyond admitting I am wrong and offering a public apology when I am wrong, however I do not believe this situation warrants such action.

You mention Policy 2 in your communication.   Policy 2 was never mentioned in either the protected, nor unprotected documents that defined the boundaries of this agenda item.  In fact when I started to talk about Policy 2, the Town Attorney stopped me and told me to stay on subject.  Once again, I have never violated Policy 2.  I have, without the Town Manager being present, asked questions of staff.  I have never directed staff to do anything.  Policy 2 states “Council members should contact staff directly only when the purpose is to communicate information: e.g., to report on conditions, describe a problem, or request information.”

We are all covered by Policy 2.  You submit that I am to limit my access to all Town buildings, except for when I am following Policy 2.  You also repeat that I am to follow Policy 2 whenever interacting with Town staff on Town campuses.  How do these directives differ from any required behavior by any other Council member?

You conclude your communication by having the audacity to suggest that I would retaliate.   This coming from an individual who: 1) wrote an op-ed advocating for my recall, 2) wrote the Arizona Bar Association in an attempt to get Councilmember Burns investigated, 3) continually chastises Council members who do not vote the same way you do, and 4) after hearing my answer to your question on Jan. 13, 2013 you respond by shouting “You’re through, You’re done!” and then you initiated a secret file on me.  In my opinion, you are the paragon of retaliatory behavior.

Based on the foregoing, I have obviously carefully considered your communication.

Mike Zinkin
Councilmember

Residents who regularly attend Council meetings or watch the meeting live-stream online were appalled at the hypocrisy of this vote. Many have been subject to offensive remarks made by the Mayor and councilmembers as they had the audacity to express different views. The Mayor and councilmembers Hornat, Snider, and Waters should look closely at their own vindictive actions as they could clearly be accused of similar insensitivity on any given day, according to one resident.

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