Black Diamond terminates city administrator following background check | Read Letter
By DENNIS BOX
Covington Reporter Editor
December 24, 2009 · Updated 1:02 PM
The city of Black Diamond has released a letter stating former City Administrator Leonard Smith was terminated for cause Dec. 8 by Mayor Howard Botts.
The Reporter received the document following a public records request.
The letter, written by interim City Attorney Yvonne Ward and addressed to Smith's attorney, G. Saxon Rodgers, outlined the reasons for the termination.
The letter, dated Dec. 14, stated, "…Mr. Smith is terminated for cause effective December 8, 2009. Mr. Smith breached the conditions of his employment, including failure to cooperate with the background check; misrepresentation; insubordination; deceit regarding moral character; deceit regarding his prior employment; failure to perform his duties; and abandonment of his position."
A background check conducted as part of the city’s hiring process raised troubling issue, which with other problems resulted in the termination of Smith.
The city hired Keith Barnes Oct. 27 to conduct a background investigation on Smith. Barnes began investigating Smith's background in Tumwater where he had been city administrator from 1982 to 1993.
The preliminary report on the background check was submitted to the city Nov. 11.
The Dec. 14 letter from Ward stated Barnes' background check, "…raised red flags. Specifically, news articles reported that when Mr. Smith was City Manager for Tumwater, the police investigated him on the allegation that he was a Peeping Tom, including an alleged incident involving the wife of a City of Tumwater employee. News articles indicated that Mr. Smith was associated with a prior Peeping Tom complaint as well."
Smith was hired Oct. 1 following the termination without cause of Gwendolyn Voelpel. City officials stated the reason for terminating Voelpel was she had started to look for another job. She was paid $87,015.83 in severance compensation.
The employment contract between the city and Smith stated, "For purposes of this Agreement, the term 'cause' shall mean misfeasance, malfeasance, or nonfeasance in office."
According to the contract, termination for cause means Smith "shall not be entitled to any Termination Pay" or severance compensation.
The Dec. 14 letter from Ward noted when Smith was interviewed for the position of city administrator during the Oct. 1 executive session, he was told, “…his hiring was conditional upon clearing a background check,” and the letter noted Smith agreed to cooperate.
According to Ward's letter, when the investigator went to Tumwater he was told Smith had called the city and warned them about a letter in his file “…that precluded Tumwater from discussing Mr. Smith’s employment.”
Ward’s letter noted the investigator found court files (from 1993) showing Smith “went to court to attain orders to preclude Tumwater from releasing his files. It appears Tumwater agreed to this order in exchange for Mr. Smith's termination. When the investigator (Barnes) requested files at the Tumwater Police Department, the clerk said, 'Oh is this the peeping guy?'"
Once the city received the preliminary report Nov. 11 from the Barnes, Ward’s letter stated the city and Smith agreed to a Loudermill hearing Nov. 13.
A Loudermill hearing refers to a process where an employee is allowed to present evidence before an employer disciplines or terminates the person for reasons that could stigmatize or harm the employee’s reputation. The hearing refers to the 1985 U.S. Supreme Court decision Cleveland Board of Education v. Loudermill.
According to Ward’s letter, Smith was told at the hearing he “…had not been complying with the conditions of his employment, including cooperating with the background check, performing his duties, and reporting to the Mayor.”
Smith was told by the mayor the issues surfacing on the background check “were disturbing.” He was told he needed to “address them to the Mayor’s satisfaction.” Smith also was told to stop being insubordinate.
According to Ward’s letter, Smith ignored the mayor’s instructions, made personnel and budget changes without authorization from Botts and he refused to allow Tumwater to release his employment information.
The city gave Smith a letter of termination for cause Nov. 20, but decided to place him on paid administrative leave and gave him “another opportunity to present his information….”
The letter stated Ward interviewed the former employee of Tumwater Dec. 4.
“He reported that Mr. Smith had been looking into the windows of the employee’s apartment while the employee’s wife undressed. She saw him, recognized him and called her husband. The husband filed a police report. The police told the husband they knew who it is — Leonard Smith — and there had been prior complaints about peeping/prowling issues with Mr. Smith.
“The former employee also reported that Mr. Smith engaged in sexual relations with two of his female subordinates. He reported that Mr. Smith created a hostile and abusive work environment,” Ward wrote.
Ward contacted Smith’s attorney informing him a second Loudermill hearing was set for Dec. 8.
Smith did not appear for the hearing and Botts terminated him for cause.
Smith will be paid his salary and termination benefits through Dec. 8 and the letter stated, “The City is not waiving its claim against Mr. Smith, not limited to fraud, misrepresentation, and breach of contract.”
An attempt was made to contact Smith by phone for a comment. He has not returned the email@example.com or 1-425-432-1209 (ext 5050).