September 7, 2007

City Council fires auditor

Mayor offers few details on council decision to oust Jerry Silva

By Carol Rosen
Editor

Mayor Chuck Reed announced on Aug. 28 that the San Jose City Council had fired City Auditor Gerald Silva in a unanimous closed-session vote.

“Over the past five months, the city council has been considering complaints of inappropriate behavior and retaliation made by members of the city auditor’s office,” Reed told reporters at a hastily called news conference following adjournment of the afternoon council meeting. “The city council retained an outside investigator and outside legal counsel to assist the council.”

Gerald Silva

The council met in closed session with Silva for about two hours in the morning, but voted to remove him “from office based on inability or failure to perform the duties of the office or negligence in the performance of such duties…” Reed said.

“I’m bewildered and I don’t understand how it ended up this way,” Silva told the Times. “I talked to them for a couple of hours, and I felt good about it. They were listening and receptive to what I was saying. I was stunned when I got the news.”

The mayor said the decision was “extraordinarily difficult. I have known and worked with Jerry Silva for many years. I have great respect for his professional skills, and we have always had an excellent working relationship. He has been dedicated, hard working and tenacious. The high quality of the work of the office has set an international standard.”

Former District 10 Councilmember Pat Dando, who attended the earlier council meeting as well as the press conference, called the situation “a very sad thing. Silva created the auditor’s office and set auditing standards nationally. He returned $7 for every dollar the city invested and he handled it with integrity and openness for all,” she told reporters.

Silva, who was named city auditor in 1985, had been considered the epitome of auditors, up until May. He is commonly credited, by council members, for having saved the city large amounts of money over the years and has won national and international recognition for his work.

Problems, however, became evident last May when Silva abruptly took a paid leave of absence “due to stress.” Soon after, five others from the 16-member office were also on paid leaves, including the two deputy auditors. That was followed by a lawsuit filed by Jennifer Callaway, a senior program auditor. The lawsuit, filed against the city and Deputy Auditor David Moreno, claims harassment as well as a sexually hostile atmosphere.

Robert Bohn Jr., representing Callaway, one of eight senior program performance auditors, said he filed suit in the spring against Deputy Auditor David Moreno and the city of San Jose claiming sexual harassment and a sexually hostile environment on behalf of Callaway. The suit mentioned Silva, but he is not a party in the suit, Bohn told the Times.

It accuses Moreno of touching Callaway, which Bohn said others witnessed, and of making comments about her appearance. In addition, Bohn said Callaway complained that Silva discussed his sex life in detail among the employees. However, Silva is not a defendant, Bohn said, by personal choice of his client. “Silva did not touch her and Moreno did,” he said.

The suit seeks unspecified damages and compensation for Callaway’s medical and counseling related expenses.
Meanwhile, according to Reed, Callaway remains a city employee. He also noted that four employees from the 16-person office are on leave “for a variety of reasons. Three are on paid leave,” he said.

The mayor said that the city has waived attorney-client privilege and will release a summary of investigative findings from Steven Hirschfeld, an employment attorney the city council retained. The council will also release an edited version of the investigation. This report will protect the privacy of those mentioned in the report, said Reed, as their names will be redacted.

Silva called the report, which he received last week, “full of bias and replete with errors and inaccuracies that are not supported by any sense of logic. “

However, according to a letter from Hirschfeld, the report delineates investigative findings that include “comments of a sexual or gender-based nature in the office.” It also claims that sexually based comments “permeated the office” and were condoned by the auditor who did not take “appropriate action” when such comments were made.

Other findings include profanity and “outbursts” by Silva when angry or frustrated. While Silva denied these allegations, “the investigator believed them based on information provided by employees in the office.”

Reed said that the city will be looking for a new auditor and hopes to have one in place before the end of this year, but would not speculate as to the length of time to find someone to take Silva’s place. Currently, Steve Hendrickson has been serving as an interim auditor three to four days per week, and the mayor is recommending he stay on as interim city auditor.

Hendrickson is a former chief deputy state auditor. His career includes a stint as audit principal with the state bureau from 1993 to 2001 and in various management and supervisory positions with the California Auditor General’s office and the California Public Employees Retirement System.

As to the current employees now on leave, Reed said their employment status would be up to the interim auditor.

Reed would not comment on why Silva was not allowed to resign, but did mention that the former auditor has the right to appeal the decision to a neutral third party.

Silva said he was unsure what his next step would be, and that he wants to “sit back and try to regain my balance and see what my options are.”

He leaves with six months severance pay—approximately $92,000—and because he worked for the city for 22 years, his retirement is vested and he will be able to claim it, according to Reed.