Commissioner Nick Fish

City ofl'urdand
CONFIDENTIAL
HAND DELIVERED
May 23, 2014
Dean Mamet:

Subject: Notice of Disciplinary ActionuWritien Reprimand
Dear Dean:
As a non--represented, FLSA exempt employee of the Bureau of Enviromnemal Services,

City of Portland, in the classification of Environmental Services Director, you are hereby 
notified ofthe following personnel action:

Action: Written Reprinmnd
Grounds: Cause
Summary of Charges: Unsatisfactory performance

Background. You have been employed by the City as Bureau Director for the Bureau of
Environmental Services since April ll, 1994. In June 2013 you were assigned to the
ponfolio of Commissioner Nick Fish. Pursuant to Portland City Code 3,13 ,020 "The
Bureau is administered by the Commissioner in charge and led by the Director of
Environmental Services."

Supporting Facts. Having observed your work since June 2013, I have determined that
you are not leading the Bureau of Environmental Services (BES) as you should. [want
you to know the: I am not satisfied with your performance A trust relationship between
me, as the Commissioner in Charge of BBS, and you, as the bureau Director. is essential
for successfiil management of the bureau in Portland's system ofgovemment, As the
Commissioner in charge, I have the ultimate responsibility to ensure that HES is

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functioning effectively and is prudently managing ratepayer funds. To fulfill that
responsibility, I have to rely on you to properly execute your responsibilities as Director.
Your responsibilities are broad in scope,require excellentjudgment and a high degree of
program and administrative discretion and are evaluated in terms ofoverall program and
cost effectiveness. Your performance over the last year has caused me to lose confidence
in yourjudgment and in your ability to achieVe overall program and cost effectiveness.
Your management ofthe bureau and interactions with me and my staff have damaged our
trust relationship. In addition, we are at a pivotal time in terms of public confidence in
our management ofthe utility bureaus,and some of your actions discussed below reflect
a fundamental misapprehension on your part ofthe need to regain public confidence in
our prudent stewardship ofpublic resources.
Were you an at-will employee(as are all other City bureau directors); I would be
terminating your employment. I believe the performance problems detailed in this letter
are sufficiently severe to merit discipline in the form ofa suspension. However,I am
electing at this time to instead provide you with this letter ofreprimand. I want to be
clear that if you do not demonstrate immediate.and sustained improvement in your
performance following this letter ofreprimand, you will face termination rather than any
intermediate level ofdiscipline.
Below are examples ofsome ofthe areas in which your performance has not met my
expectations.
Columbia Wastewater Treatment Building. You failed to provide adequate oversight
and financial controls on this construction project, and allowed the cost to more than
double from the $6.7M bid Council approved,to $12.5M. After our office asked for a
full accounting ofthe project costs and how they increased over time, your office
provided inaccurate information aboutthe final cost. Even after you became aware of
that error, you failed to notify me ofthe correct cost, despite the clear opportunity to do
so at our weekly meeting. As a consequence, I provided inaccurate information to a
reporter, and thus to the public. Although my policy staff and I told you in very clear
terms how concerned we were about the cost ofthis project and how disappointed we
were by your failure to deliver an appropriately modest building with ratepayer funds,
you nonetheless gave a media interview thereafter that publicly contradicted my position
on the issue by attempting to justify expensive frills like designer chairs, custom rugs,
custom bathroom fixtures, and a high-end barbecue grill for employees. Your public
statements in this regard, made after my staff and I had clearly conveyed to you that we
find such uses ofratepayer funds to be unacceptable, were inappropriate and bordered on
insubordination. I believe your failure to contain costs on this project and your continued
attempts to justify those costs after the fact have contributed to a loss ofpublic trust in the
City's management ofits utilities and stewardship ofratepayer dollars. Your responses
to me and the press on this issue demonstrate a lack ofjudgment and understanding as to
what the Council and the public expect with regard to the use ofpublic funds. Your
continued insistence that these expenses are justifiable, when I have clearly
2

 communicated to you that I do not believe they are, has further damaged our customers'
trust in BES and my trust in you.
Southwest Neighbors,Inc.(SWNI)Watershed Resource Center. BES Watershed
Division failed to implement Council budget direction last year to develop a plan to
reduce SWNI's reliance on a BES grant to fund their Watershed Resource Center.
Watershed staff did not follow Council direction, but instead encouraged and supported
SWNI's advocacy to maintain funding. When it became clear that the Watershed team
had not been working with SWNI on a transition plan, and that SWNI neighbors were
unaware of the requirement to develop such a plan, I withdrew the proposed cut., Your
failure to ensure that the Watershed Division took the required steps to implement the
Council's direction caused unnecessary confusion and conflict with SWNI,and delayed
the desired transition for another year.
Budget Advisory Committee(BAC)Process. Despite my direction to you that I expect
an open, transparent and interactive BAC process, the feedback received from your BAC
and from the PURB regarding your BAC process was not satisfactory. Rather than being
transparent and inviting the BAC members to question any aspect ofthe budget, as
Portland Water Bureau did, your BAC process limited the BAC members' participation
to responding to your bureau's proposals. Similarly, despite my direction that you
propose 2.5% cuts only to your operating budget, you responded with a list ofadd
packages, with suggested offsets to net out to 2.5% in cuts. This occurred halfway
through the BAC process and prevented the BAC from providing meaningful input.
City Budget Office(CBO). Despite my clear communication to you about the
importance oftransparency and accountability for all of your bureau's business,I have
had to counsel you in writing about your lack ofcollaboration and cooperation with your
CBO budget analyst, Tess Jordan. Ms. Jordan attempted to delve into the rationale for
your proposal to cut the street sweeping interagency agreement with the Portland Bureau
of Transportation, and your response to her was defensive and curt. You suggested that it
was not her place to "second guess" your requested budget. My previous letter made
clear my expectation that CBO analysts shall enjoy full and unfettered access to your
budget, and are empowered to ask any all and all questions to understand and evaluate it.
I want to reiterate that I expect your full cooperation and transparency in support ofthe
CBO's work.
Disaster Policy Council(DPC). Earlier this winter, when the City experienced a winter
snow emergency, you did not attend Disaster Policy Council meetings or participate in
conference calls throughout the emergency, which lasted several days. You did not call
me to check in or send a representative to the meetings or conference calls. After the
event had concluded, I confirmed with the Portland Bureau ofEmergency Management
Director that BES is in fact a member ofthe DPC. I asked my Chief of Staff to direct
you to attend all future DPC meetings,starting with the PBEM Earthquake drill. While
3

 you complied with this directive, I do not believe a directive ofthis type should be
necessary for a director of an essential infrastructure bureau with $12 billion in assets.
Superfund/NRDA.Despite the Council's designation ofBES as the City's lead agency
for the Superfurtd, it has come to my attention over the past months that for years you
have not been providing clear direction and supervision to the BES staff working on
natural resources restoration, with the result that the City Attorney's staff has assumed
that role by default. The consequence is that your staff has been aggressively pursuing a
strategy that does not comport with your stated policy goals. My staff has received
feedback that this lack ofleadership and strategic direction isjeopardizing the City's
legal position. With millions ofdollars ofliability at stake, your lack of apropriate
oversight and hands-on management is unacceptable.
Future Expectations and Supervisory Directives:
I realize that over your twenty-year tenure as BES Director, you have worked for a
variety of Conunissioners in charge, each with a different management style. I want to
be clear as to my expectations. It appears to me that you often fail to follow and
implement the policy direction set by me and communicated to you by me and my staff,
unless we provide you with an explicit directive. This is unacceptable to me. At this
critical time for the City's utilities, I have taken and will be continuing to take an active
and hands-on approach to managing my bureaus. Public transparency and accountability
are guiding values for my office and for my bureaus. It is my clear and unequivocal
expectation that you will follow both the spirit and letter of my policy direction as you
receive it from me and my staff, with or without a formal directive. Failure to do so will
be grounds for termination of your employment. In addition, I expect you to be proactive
in ensuring that you understand my policy direction. If you are unclear about my policy
expectations in any area or on any subject, I expect you to ask to have them clarified.
In addition to this general expectation,I have specific expectations in the following key
areas:
Communications. Clear, accurate and strategic communication is a highly held value for
my office and a requirement ofmy bureau directors and bureaus. I expect that you and
your staff will proactively share information, provide early warning ofemerging issues,
notify me of media interest in your work,and offer policy briefings to me and my staff
about bureau operations at our weekly meetings -- and outside of meetings if the
information is time-sensitive and should not wait. I also want you to develop a written
bureau-wide strategic communications plan by August 15,2014 that creates a common
voice for all programmatic areas, notjust for individual capital projects. I expect that you
and your staff will respond to requests from the public and the media with information
that is timely, accurate, easily understandable, and that clearly explains the rationale,
costs and benefits of bureau programs and projects. Following the "no surprises rule," I
expect that you and your staff will develop all external communications in consultation
4

 with my staff and me before making them public. Finally, I expect you and your staffto
provide timely, clear, accurate and complete information in response to information
requests from me and my staff.
Oversight of capital spending. The Bureau of Environmental Services manages nearly
$12 billion in assets and provides essential sewer and stormwater services to the residents
ofPortland. With prudent stewardship of ratepayer dollars as your highest priority, I
expect that you will both communicate this priority to your bureau and provide hands-on
management and oversight of all capital spending. I expect you to carefully review the
bureau's CIP plan and individual projects to ensure that costs are tightly controlled and
unnecessary increases in scope and cost are avoided. I also expect you to communicate
your priorities for CIP spending to me well in advance ofthe desired timeline for
bringing projects to Council for approval and/or funding,
In the interest oftransparency, and in an attempt to engage his colleagues, I have directed
both you and Director Shaff to bring any ordinance authorizing a project with a value
over $500,000 to Council on the Regular Agenda. We will be issuing directions on how
to handle project changes very soon but need to work with Procurement to nail down a
good threshold level for coming on Regular for changes. For now,that same $500,000
level is the threshold for Regular Agenda presentations.
Council Budget Notes and Policy Directives. Council budget notes and other directives
will be promptly and faithfully implemented. If there is a concern about a particular
directive or an unavoidable delay in implementation,I expect that you will report this to
me promptly and suggest ways to resolve the concern or delay.
Budget Advisory Committee Process. I expect future BACs to be convened earlier in
the fall, and that BAC members will be encouraged to suggest budget priorities oftheir
own,rather than simply responding to a bureau-provided list. The BAC will be
independently facilitated to allow full and open participation ofall members,and my
direction regarding cuts, add packages and other process details will be followed to the
letter.
Disaster Policy Council. As a member ofthe DPC,I expect that you(or in your absence,
a preapproved designee) will attend DPC meetings and participate in DPC conference
calls in the event ofan emergency, and keep me apprised on an ongoing basis. I also
expect you to ensure that your bureau is prepared for a range ofemergencies and
proactively brief me and my staff about your preparations and any gaps that need to be
addressed.
Superfund. As a potentially responsible party in the Portland Harbor Superfund, the City
is faced with significant potential legal, financial and political risks and liabilities. A
prior Council designated BES as the lead agency for the City in the Superfund process;
this designation places important responsibilities on you as the BES director, I expect

 you to proactively keep me and the Mayor informed ofdevelopments with various
partners, including the Trustees, Lower Willamette Group,DEQ,EPA,the Citizens
Advisory Group and others. In consultation with me and the Mayor,I expect that you
will provide hands-on management and clear policy direction to the various BES staff
responsible for Superfund/CERCLA/NRDA activities, as well as to City Attorney staff
providing legal support to this work. I expect that you will direct policy analysis and the
development of policy recommendations and share these with the Mayor, me and our
staffs.
Diversity and Equity. Diversity and equity are a priority for me,for the City Council
and for the larger community. I want you to assign a manager with responsibility for
coordinating diversity and equity efforts across the bureau. I want you and this manager
to work with the Bureau ofHuman Resources to develop a plan for increasing diversity
in your workforce through broad outreach and recruitment efforts to ensure diverse pools
of candidates for all open positions; to work with BHR and BES managers on staff
development and succession planning; and to provide opportunities for growth and
development within the organization. I also want you and this manager to work with
Procurement Services to continue to build on your strong track record ofproviding
contracting opportunities for minority, women and emerging small businesses.
In conclusion, if you have any questions or are unclear about any of my expectations it is
your responsibility to let me know so I can clarify them for you.: In the absence ofany
such request for clarification, I will assume that you understand these performance
expectations. I want to reemphasize that in order to begin to restore our trust
relationship, you must demonstrate immediate and sustained improvement in your
performance. Your failure to demonstrate immediate and sustained improvement will
result in the termination
• of your employment as the BES Director.
A copy ofthis letter will be placed in your bureau and official personnel file.
Sincerely,
j
ot_

is)

Nick Fish, Commissioner in charge
Bureau ofEnvironmental Services

May 23,2014

 APPROVED:

Nick Fish, Commissioner

Date

RECEIVED:

Dean Marriott
Date
(Signature of employee acknowledges receipt of this letter by employee but does not
signify agreement with its content.)
Cc:

Commissioner Fish
Official Personnel File in Bureau ofHuman Resources
Bureau Personnel File

7

  

Home 
Delmar--b

May 27, 2014

Commissioner Nick Fish
1221 SW Fifth Avenue, Room 240
Portland, OR 97104

Subject; Your Letter of May 23, 2014
Dear Commissioner Fish:

The Written Reprimand letter dated May 23, 2014 that you handed me came as a complete
shock. After more than twenty years of seivice to the people of Portland, and having worked
for four Commissioners in Charge of the Bureau of Environ mental Services (Undberg, Sten,
Adams and Saltzmani every one of whom provided regular performance reviews that praised
my leadership and excellent performance, I was stunned to read the letter In the eleven
months since you were named Commissioner in Charge of BES you have not provided me any
indication of dissatisfaction about my leadership oi the Bureau when you handed me the
letter, I commented that was a big surprise and that you had not previously provided any
expression ofserious concerns. You said that I had a point, but that we could talk about that
after the long holiday weekend,

Last June I prepared a draft work plan for myself and sent it to Hannah Kuhn, your Chief of
Staff, to start a discussion of what I described as "goals and objectives for the upcoming yea I
asked for feedback to ensure I was paying attention to the things that mattered most to you.
After having not heard any reply, i asked about my draft work plan but was told you and your
staff was too busy to focus on it, and that you would always provide feedback in person.

I will comment on the examples you provided in the letter, but my primary objection is to the
process. It is fundamentally unfair and contrary to the CitYs human resources policies to
threaten me with termination having never discussed performance issues until now The City
constantly trains all its managers on coaching and communicating with staff about performance
expectations and where an employee needs to make improvements It is the basic foundation
of what makes an organilation great for managers to try to help make the people they manage
succeed. in that way everyone succeeds To become dissatisfied and not sit down one on one
to discuss the situation is setting the employee up for failure.

Due to the unfairness of this process, and the mistakes in your letter which i will discuss below, 
I request that the letter of Reprimand dated May 23, 2014 be rescinded. i

-2-

Correcting the Record Regarding Your Examples
Columbia Wastewater Treatment Building. The project at Columbia Boulevard is, as you know,
much more than a building. It encompasses over five acres of improvements to the entrance of
the treatment plant, traffic circulation, enhanced security, a new place for visitors to check-in
and be greeted by staff, a multi-purpose room for staff use during the day and for community
groups to use off hours, and offices for engineers doing work on the treatment and collection
system. The project did not double in cost as your letter indicates. The bid accepted by the City
Council for construction of the building and the site work was for $6.7 million. Construction
was recently completed for $7.7 million, which included change orders approved through the
Bureau's normal change order approval process. All critical decisions made about this project
were discussed and approved by Commissioner Saltzman, who was the BES Commissioner in
Charge at the time. Contract amendments were approved by the City Council on several
occasions during the design and construction of this project.
I never heard from you that you were "disappointed" in my "failure" to deliver a modest
building. When you and I toured the project area and the Columbia Building you were very
complimentary,saying what a great addition this was to the neighborhood.
I did not give a media interview justifying "expensive frills". At no time did any of my
statements to the media or anyone else constitute insubordination.
You know that I disagreed with decisions made by your staff regarding how this project was
discussed. Prior to any media inquiries I suggested that we hold a community open house and
provide tours for the media. I was confident the public reaction to the improvements would
mirror your very positive reaction when you visited the site. My advice was rejected, and
consequently one media person with a very negative view of city government set the frame for
the story from the very start.
My staff and I, during the entire time the project was the subject to a media circus, tried to be
supportive and responsive to you. I prepared for my interview and tour with the TV reporter
and discussed the talking points with your staff and with you in your conference room. At no
time did either you or your staff direct or even suggest that I should apologize for the project in
any way. I certainly never contradicted your position on the subject. In fact in the final prep
session for the interview/tour you told me not to worry because the reporter had already
written the script for his story. I received no negative feedback after the story aired from you
or your staff. I took the initiative to arrange for the Chair of the Citizens Advisory Committee
for the treatment plant to attend the interview/tour with me and she was totally supportive
and complimentary of the project to the reporter, including in an on camera interview.

 -3The concerns expressed in your letter about "expensive frills" like furniture and other
furnishings have already been discussed with your staff. The Columbia Building was required to
meet LEED Gold status by city policy as adopted by the Council. The application for LEED status
can include points for furniture, depending on how it is manufactured. The two lobby chairs
met the threshold for sustainable manufacturing. They are also constructed to meet the rigors
of institutional use and to last twenty years or more. The rug in the lobby is made to comply
with the ADA requirements, with special tapered edges. We chose not to carpet the lobby, but
went with an area rug instead.
For the past twenty years under my leadership, the Bureau has invested over $2 billion to build
buildings; treatment works; pump stations; an environmental laboratory; and,scores of natural
resource restoration projects. I oversaw the successful completion of the largest public works
project in the history of Portland, the $1.4 billion CSO abatement program on time and on
budget. All audits of the Bureau have been favorable.
I successfully negotiated the end to a US Justice Department effort to force the City to sign a
consent agreement with the federal government which would have greatly complicated our
CSO program. After almost eight years of very tough negotiations and threats of legal action by
the federal government, my strategy and negotiation skills ended with the Justice Department
declining to move ahead with their lawsuit, saving Portland ratepayers $200 million of
additional construction costs the federal government had been insisting on.
Southwest Neighbors Inc.(SWNI). Your letter alleges that the Bureau failed to handle the SWNI
funding situation, causing you to withdraw the proposed budget cut of $79,000 and restore
funding. I have e-mails from my staff describing how a manger in Watershed Services talked to
SWNI staff last year and again this spring to let them know they needed to begin planning for
alternative funding sources to support their program. They were clearly told that funding from
BES would be reduced or eliminated. These e-mails were sent to your staff in July of 2013 and
March of this year. Jim Blackwood told me that he had met with a contingent from SWNI and
had told them clearly that what they were hearing from BES was the way it was going to be,
and that they should be planning for reduced or zero financial support from BES.
I'm not surprised that SWNI worked hard to protect the funding they get from BES. This
happens almost every time cuts are proposed by the City for any programs, whether it is
Buckman Pool or something else. The statement in the letter blaming me for "confusion and
conflict" with SWNI is not supported by the record.
Budget Advisory Committee(BAC). The budget advisory committee process was a bit rocky this
year. Both Jim Hagerman and I were certain that we had your approval to send to the BAC our
list of possible cuts and adds, since we had shown them to you and your staff in our regular
briefing where we regularly discussed the budget. We were shocked to get word from Jim

 -4-

Blackwood that we had apparently misunderstood. To suggest that we had done so despite
your direction is contrary to my memory and that of Jim Hagerman,the BES financial manager.
City Budget Office (CBO). Your letter indicates that I somehow violated your clear
communication about the importance of transparency and accountability by talking to the
Budget Office staff about how they were conducting their review of the Bureau's budget. I
totally support and practice transparency and accountability in government.
I spoke to Tess Jordan from CBO at the request of my managers who were being peppered with
requests for information including justifications for the existence of some of their programs.
Ms.Jordan was very vigorous with her requests, telling my staff that they needed to justify to
her and convince her of the efficacy of their programs. My managers indicated that their staffs
were finding it difficult to get their work done, and staff was reporting that the Bureau's
performance would suffer if this continued. When I spoke to Ms. Jordan she agreed she had no
real knowledge or expertise of the programs administrated by the Bureau. She had also missed
some Budget Advisory Committee meetings and was playing catch up. I asked that she let me
know what information she needed and that I didn't think it was her job to pass judgment on
the usefulness or efficacy of Bureau programs.
I was surprised to receive a letter from you telling me to cooperate with the CBO. I was talking
with CBO staff about how to be as efficient as possible with the time of Bureau staff. Your
letter to me came without any opportunity fora discussion, and I was surprised that you did
not take a few minutes to speak with me to get my perspective about what was going on. I
immediately instructed my staff to cooperate fully with the CBO following receipt of your letter,
and I let the CBO staff they could count on our support.
Disaster Policy Council(DPC). 1 have attended many Disaster Policy Council Meetings over the
years, and the Bureau is always represented by one or more of my staff in my absence. Prior
Commissioners in Charge of BES have found this coverage acceptable.
During a snow storm in Portland my attention is usually focused on making sure my critical staff
is reporting for duty and able to keep our systems functioning. I keep in touch with my
Wastewater Services Manager and Engineering Manager to get regular status updates. BES has
no front line responsibility during a snow storm other than to keep the sewer treatment and
collection system working. PBOT is in the lead for snow and ice removal, often borrowing our
vehicles to do so. This winter I was following this approach that had worked so well in the past.
I was reading emails about the weather and the plans for how PBOT was doing. Afterwards I
did get a note from your Chief of Staff requesting I attend more DPC meetings, or to be sure to
send a representative. Knowing that was your preference, I immediately complied.

 -5Superfund/NRDA I have provided leadership in Superfund even before the Harbor was added
to the Superfund in 2000. I have briefed you numerous times, and my staff has made
presentations to you and your staff that you have described as terrific, exceptional and very
informative. As you have learned from those briefings, the Bureau is doing a great job of
preparing to protect the City's interests in making sure the harbor contamination is properly
addressed by EPA and that our citizens are not unfairly left with the bill. During the past
decade, I have made presentations to and met with federal, state and tribal officials about both
Superfund and the Natural Resource Damage Assessment process on numerous occasions. I
spend a great deal of my time dealing with Superfund/NRDA, and I know it is time well spent on
behalf of our City.
I recently met with your Chief of Staff about the role of one of the Deputy City Attorney's
assigned to Superfund/NRDA. I have spoken to this lawyer on several occasions to request that
the Bureau's Superfund Manager is kept better informed about possible legal strategy, so the
Bureau and your office can have meaningful input and influence. Those requests have only
been partly successful, and it needs to be addressed. Aware of your interest in
Superfund/NRDA, I met with Hannah Kuhn and we agreed on an action plan that included
Hannah speaking to Tracy Reeve,the City Attorney, regarding her Deputy's performance. I
checked back a week later but Hannah had not spoken to Tracy, so I sent Hannah a draft memo
that would come from me to the Deputy City Attorney involved setting out clear directions and
expectations. After waiting a week for comments, I called the Deputy City Attorney myself and
set forth clear expectations and direction for guiding the relationship with BES staff and your
office. 1 told Hannah I had done that, and I was thanked for taking the initiative. I suggested
that it would be good for me to follow up with a memo to the lawyer, but was advised that
would not be necessary. Hannah's direction not to follow up confused me, but to see this issue
included in your letter as a complaint now is distressing to me.
The Future Expectations and Supervisory Directives section of your letter does provide clear
guidance on what you expect. The Diversity and Equity section is new, but given our excellent
record on minority, women and emerging small business contracting we will have no issue
complying with your direction. BES has been a leader in the City on matters of Equity.
I look forward to talking with you about how to meet the expectations listed, so that you are
fully satisfied.

Dean C. Marriott
/cc Hannah Kuhn, Chief of Staff

  

Commissioner Nick Fish
City 0meer

June, 2, 2014

Dean Marriott

Dear Dean:

I write to acknowledge receipt of your response, dated May 27, 2014, to my letter of
reprimand

While I do not agree with the points you raise regarding areas of your performance that I
have found to be unsatisfactory, I do not want to get into a back and forth debate about
each issue

I do not intend to rescind my letter of reprimand1 and hope that you understand the need
to accept responsibility for restoring a relationship of trust with me and my staff going
forward

I am pleased that you understand the expectations set forth in my letter. I Want to be clear
about one additional expeclation that I shared with you when we met last week And that
is my expectation that you will wholeheartedly embrace my reform agenda and work in
partnership with me to lead change in the Bureau of Environmental Services.

If you have any questions or are unclear about any of my expectations going forward, it is
your responsibility to talk with me so I can clarify them

Sincerely,



Nick Fish

1221 sw FourthAvmne,Room Panhnd,0rgon momma
(50s) FAX 15m) 323.3594 mu 31mm nick@pordazuhmgon.gov