Penelope Culbreth-Graft
— former City Manager Lorne Kramer, when asked today whether the performance and resignation of former City Manager Penelope Culbreth-Graft was a factor in the ongoing debate over a proposed switch from a council-manager form of government to a strong-mayor system.
YouTube aficionado Ed Billings is trying to scare up some laughs with a new video that puts Councilman Bernie Herpin in the starring role as a singing Frankenstein.
“You should have expected that there will be some ghoulish humor, considering the events that have taken place in Colorado Springs,” Billings, who is upset with the city’s massive cuts in bus service, said in an e-mail to the City Council.
The e-mail, which Billings also sent to The Gazette, includes a link to the video.
While Herpin is the star, the video includes a colorful cast.
Mayor Lionel Rivera is portrayed as a vampire, former City Manager Penelope Culbreth-Graft is a werewolf, local activist Janis Heuberger is the bride of Frankenstein and anti-tax activist Douglas Bruce – according to Billings – is “Frankenstein’s Monster.”
El Paso County Commissioner Wayne Williams
Williams was there as the current board chairman of the Pikes Peak Area Council of Governments regional planning agency.
During a break, Williams, an employment attorney by profession, weighed in on the “constructive termination” claim by former City Manager Penelope Culbreth-Graft, who contends she was fired — and owed $105,000 in severance pay — because Mayor Lionel Rivera swore in her replacement three days before her resignation took effect.
“As a general rule, if you give notice that you’re leaving, the mere fact that your employer starts making plans for what happens after you leave does not provide a basis for an assertion of constructive discharge, so I don’t think there’s a basis in the claim,” Williams said.
Williams said he had mixed reactions to Culbreth-Graft’s claim.
As an attorney, he said, he felt her claim didn’t have merit.
As an elected official, he said, he felt disappointed.
“I think it left her portrayed as an outsider, someone who is not that concerned about the overall good of the community,” Williams said.
“No.”
–0 city spokeswoman Sue Skiffington-Blumberg, when asked today if there was anything new to report involving former City Manager Penelope Culbreth-Graft’s claim of constructive termination.
Culbreth-Graft, who announced her resignation March 19, claimed April 13 — three days before she was set to leave her job at the city — that she had been fired without cause after Mayor Lionel Rivera swore in her replacement.
Former Colorado Springs City Manager Penelope Culbreth-Graft will have a difficult time proving “constructive termination” in her attempt to collect $105,000 in severance pay from the city, a law professor at the University of Colorado at Boulder said today.
“Does she have a lawyer arguing this or is she just saying this?” asked associate professor Scott Moss, who specializes in employment law.
Last month, Culbreth-Graft announced she was resigning effective April 16.
But during the City Council’s April 13 meeting, immediately after the swearing-in ceremony of interim City Manager Steve Cox, Culbreth-Graft announced she was “hereby” stepping down as city manager as stunned council members looked on.
“I do consider this constructive termination of my contract,” she said before walking out of council chambers with her purse in tow.
“She walked out, and she never came back,” Councilman Tom Gallagher said.
The same day or the next, Culbreth-Graft sent a letter to City Attorney Patricia Kelly asking for six months of severance pay according to her employment contract, which states the city “shall pay” six months of salary and benefits if she is fired without cause.
Moss said constructive termination claims are not uncommon but hard to prove.
“I’m not sure I’m seeing what the argument is for constructive discharge in that a classic constructive termination claim is that you are being treated so badly or having your performance so subverted that you have to quit,” Moss said. “It means you quit only because they were treating you badly or subverting your performance.”
Mayor Lionel Rivera said Thursday the city did nothing wrong.
Cox’s effective date as interim city manager was 5 p.m. April 16, the date Culbreth-Graft said her resignation was effective, the mayor said.
“The city has met its requirement under her employment contract,” he said. “Specifically, the contract says if she resigns on her own, then she’s not due any kind of severance.”
Employees who claim constructive termination typically have to prove that their working conditions were “intolerable to a reasonable employee such that any reasonable person would resign,” Moss said.
“Unless she has some other facts she’s holding in reserve that might support her argument, I don’t see a constructive discharge claim from the city just planning ahead for her replacement,” Moss said.
The Gazette has requested a copy of Culbreth-Graft-s letter – as well as a response from Kelly – under the open-records act. But the city said essentially denied the request.
“The materials are not readily available and may be privileged in any case,” city spokesman John Leavitt said in an e-mail.
The city doesn’t want to give up the letter that former City Manager Penelope Culbreth-Graft sent to City Attorney Patricia Kelly last week asking for a $105,000 payout.
Immediately after learning of the letter’s existence yesterday, The Gazette requested a copy.
Apparently others did, too, because city spokesman John Leavitt e-mailed a response to two others essentially denying the request.
The city’s reason?
The letter — get ready for this — isn’t “readily available.”
The city may also be invoking attorney-client privilege.
“We are aware of your recent requests about a letter from Ms. Culbreth-Graft to City Attorney Pat Kelly,” Leavitt said in the e-mail.
“The materials are not readily available and may be privileged in any case,” he added. ”As soon as any information is available, we will let you know.”
When City Manager Penelope Culbreth-Graft resigned March 19, she said city employees have labored tirelessly to care for the people of Colorado Springs.
“They are to be commended for their professionalism – especially in these times of severe scrutiny,” Culbreth-Graft said in her resignation letter to the City Council.
“They are remarkable,” she said.
On the same day, Culbreth-Graft also sent employees a letter announcing her resignation.
“While I am moving on, you have chosen to remain,” she said in the letter.
“For that, you have my admiration, as you have chosen to stay for at least another day, knowing what threatens your future,” she said. “I hope you will not give up for you are the hope for a community that has not yet realized what lies ahead.”
Below is the text of her letter to city employees:
March 19, 2010
Dear City Employees,
Today I submitted my letter of resignation. My last day will be April 16. I made this decision after considerable thought and a two-year effort to resolve sizeable deficits, streamline operations, and positively impact the community.
I wanted to share my private thoughts after working with you through these challenging times.
You are the finest workforce in America. I’ve had the pleasure of working with thousands of talented public servants in my 32-year career. I believe Colorado Springs’ employees stand out among the greatest. You are compassionate, honorable, dedicated, and selfless. You give freely of yourselves, ask for so little yet give so much, and have walked willingly into death’s grip to save someone you’ve never met before.
As I’ve talked with hundreds of you in the past few weeks, I’ve looked you in the eyes and asked, “Why are you here?” Repeatedly, I hear, “to serve, Ma’am.” While I don’t like the Ma’am part, I do like what I hear…to serve. Public service is what you do; it’s what we do. It’s in our blood. It’s in our hearts. It’s what keeps us smiling when someone shouts profanity at us. It’s what drives us to continue giving when being spat upon. It’s what causes us to continue finding better ways to serve the public when a disparaging remark or untruth shows up in print. It’s what keeps us coming back when a vocal minority tells us we have nothing to offer.
While I am moving on, you have chosen to remain. For that, you have my admiration, as you have chosen to stay for at least another day, knowing what threatens your future. I hope you will not give up for you are the hope for a community that has not yet realized what lies ahead. For those who decide you must also leave in this next year, I encourage you to carry this compassion and dedication to your next assignment. Whether you stay or leave, what you have experienced in these last two years will allow you to inspire, challenge, and lead others to new heights. It is true that once you’ve served the public, you are a leader and others around you will forever look to you for help, strength, leadership, and hope.
Please know that I will carry a special piece of you with me forever. You can’t go through what we’ve been through together without having it affect you deeply and personally. I am indebted to you for this experience and privilege. I am honored to be a part of this family of public servants.
Sincerely,
Penny Culbreth-Graft
City Manager
Interpreting numbers can be tricky.
Last week, the city released the 2009 performance evaluation of outgoing City Manager Penelope Culbreth-Graft under an open-records request.
The one-page document showed that Culbreth-Graft received an overall rating of 2.12 on a 3-point scale.
Hoping to make the rating a little more meaningful to the average reader, I asserted that it represented 71 percent of the highest possible grade, or a “C-” on a traditional grading scale.
Knowing some people would disagree, I also stated that it was up for debate.
Well, the debate quickly ensued.
Some people squawked – and after further consideration – with some reason.
A similar debate flared up three years ago when an old colleague gave Colorado Springs Utilities CEO Jerry Forte a “C” for scoring 3.66 on a 5-point scale.
While I eat some humble pie, I’ll let you read part of what my boss had to say on the subject:
“According to (Vice Mayor) Larry Small, the council members had only three options in each of the nine categories that they assigned a rating to the city manager. They could give Culbreth-Graft a 1, 2 or 3. They weren’t allowed to split a rating; no 2.5, or 1.75. Just 1, 2 or 3,” he said.
“The only way to get above a D in any single category is to get the highest rating possible, a 3. Only a 3 gets you an A,” he added. “A rating of 2 gets you a D. There is no rating that equates to a B or a C. This system does not translate smoothly to the 0-100 scale from which 5 possible letter grades typically are derived. For council members to move Culbreth-Graft up or down by, say, 10 percent on the 0-100 scale would have required them to make individual ratings adjustments that had a magnitude of 33 percent.”
Four days before announcing her resignation, City Manager Penelope Culbreth-Graft walked out of her performance evaluation with City Council members in good spirits.
Was it a facade?
According to documents obtained under an open-records request, the council gave Culbreth-Graft an overall rating of 2.12 on a three-point scale, representing 71 percent of the highest possible grade.
Using a traditional grading scale, which is up for debate and included below, Culbreth-Graft received a “C-” for her 2009 job performance.
Culbreth-Graft had a two-pronged performance evaluation.
The first one includes five objectives: city services, sustainable growth, economic vitality, quality of life, and civic engagement.
Culbreth-Graft received the highest rating – 2.31 – under the “city services” objective.
Culbreth-Graft, who kept a relatively low profile since moving to the city more than two years ago, received the lowest rating – 1.94 – under the “civic engagement” objective.
The other part of her performance evaluation included three performance factors: leadership, learning and organization, and organizational and individual accountability, including responsiveness.
She got the highest rating — 2.13 — for organizational and individual accountability, including responsiveness.
She got the lowest rating — 1.88 — for leadership.
Vice Mayor Larry Small said this week that Culbreth-Graft gave no indication during her performance review that she was on her way out. He said everyone left the two-hour evaluation in good spirits and that he saw Culbreth-Graft on TV that night and that she appeared to be “in a good frame of mind.”
But four days later, Culbreth-Graft called Small about an hour before the city issued a news release to personally break the news about her resignation.
“She just felt that she’s been working hard and long. She’s developing some health issues that aren’t good for a lady of her age. She’s just working herself into a hospital, and that’s not good for anybody,” Small said.
“I think that’s her own personal commitment and dedication to the job,” he added. “Other people might not have put themselves through that. They would have just said, ‘Well, I’ll just do what I can.’ But she’s really gone above and beyond.”
Grading scale
A+ 97-100
A 94-96
A- 90-93
B+ 87-89
B 84-86
B- 80-83
C+ 77-79
C 74-76
C- 70-73
D+ 67-69
D 65-66
F 0-64