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Central Yavapai Fire Department Board Director Jacobs Issues Public Response to Accusations
Featured

19 May 2017  

After two months of public accusations spoken against her, Central Yavapai Fire Department (CYFD) Board Director ViciLee Jacobs has issued a public response through her attorney.

On March 21, 2017, the Central Yavapai Fire District Board voted unanimously to have Board Attorney Nicholas Cornelius retain an independent investigator to look into the complaint against Jacobs submitted by Fire Chief Scott Freitag. Jacobs joined in that unanimous vote. At the following Board meeting, Freitag’s letter was released to the public, but Jacobs’ response was not. 

Now, almost two months later, the independent investigator has yet to be appointed. Instead, Cornelius has been directed to investigate the complaint. Board Director Packard read a statement expressing strong support for Freitag, and criticizing Jacobs’ actions and behaviors. Yet, Jacobs still has not been provided an opportunity by CYFD to publicly defend herself against the allegations in Freitag’s letter. 

Today, Jacobs issued her own public response, discussing both the allegations and her concerns:

Response from ViciLee Jacobs

"May 19, 2017 At the Central Yavapai Fire District (“CYFD”) Board meeting on March 21, 2017, the Board voted unanimously to instruct Board Attorney Nicholas Cornelius to locate and retain an independent investigator to conduct an inquiry regarding a formal complaint submitted by Fire Chief Scott Freitag to CYFD Chair Darlene Packard, regarding allegations against CYFD Director ViciLee Jacobs. Immediately following the CYFD meeting, CAFMA held a separate meeting in which the CAFMA Board also voted unanimously to direct Attorney Cornelius to obtain an independent investigator and to insure that there are no conflicts of interest associated with the Phoenix Police Department or other interested parties located in northern Arizona. 

"An independent investigation never happened. Despite both Boards taking the same action and instructing Attorney Cornelius to locate and retain an independent investigator to conduct an inquiry, Attorney Cornelius did not do so, and neither Board demanded that he follow the instructions given to him by his clients, the CYFD and the CAFMA Boards, on March 21, 2017. 

"At the CYFD Board meeting on May 16, 2017, Chair Packard read a lengthy statement admonishing Director Jacobs for responding to Chief Freitag’s complaint. At the end of her statement, Chair Packard moved to have CYFD Board “make a strong statement of support” for Chief Freitag, even though no investigation into Chief Freitag’s complaint had taken place; this motion passed. No motions were made to obtain an independent investigator to conduct an inquiry. Instead, Attorney Cornelius recommended a motion to appoint himself to investigate Chief Freitag’s complaint; this motion also passed. 

"As a result of the CYFD Board’s failure to act in accordance with legal action taken on March 21, 2017, Director Jacobs will file a special action complaint asking the court to determine whether the CYFD Board proceeded without or in excess of jurisdiction or legal authority; whether the Board failed to perform a duty required by law for which it has no discretion, having never modified or rescinded the legal action taken on March 21, 2017; and whether the Board’s action taken at the meeting on May 16, 2017 was arbitrary and capricious and/or an abuse of discretion. Pursuant to A.R.S. §12-2021, Director Jacobs will ask the court to issue a writ of mandamus to compel the CYFD Board to perform the legal action unanimously passed on March 21, 2017, and to direct Attorney Cornelius to recuse himself and retain an independent investigator to conduct an inquiry into Chief Freitag’s complaint. 

"Chair Packard, in her statement at the May 16, 2017 meeting, denigrates Director Jacobs’ response to Chief Freitag’s complaint because Director Jacobs noted in her response that the complaint lacks sufficient evidence such as times, places, witness names, and other factual details pertaining to Chief Freitag’s allegations. Chair Packard cites a letter written by Director Jacobs in December 2014, even though Chief Freitag’s complaint does not refer to a letter written in December 2014 or any other date. Thus, Chair Packard has placed into Chief Freitag’s complaint information that does not exist. This conduct alone demonstrates the arbitrary and capricious action taken by Chair Packard. Chair Packard contends that information substantiating Chief Freitag’s complaint “is easily available,” but the fact remains that Chief Freitag’s complaint does not contain any such information. 

"Director Jacobs’ response addresses Chief Freitag’s complaint as it is written. It has not escaped Director Jacobs, nor should it escape anyone else, especially Chair Packard, that Chief Freitag’s complaint is devoid of any specific information and is almost solely based on matters of which he admittedly has no personal knowledge, but has allegedly been told by others. Hearsay statements, as a whole, do not support a claim of workplace harassment, which is what Chief Freitag’s complaint alleges. When those hearsay statements are based solely on information alleged to have come from the Board’s attorney, a much bigger issue arises. 

"Attorney Cornelius, as Chief Freitag is very well aware, is the attorney for the CYFD Board and each of its Board members, when those members are acting in their official capacities. Chief Freitag makes very clear in his complaint that his allegations concern Director Jacobs’ conduct in her official capacity as a Board member. Thus, statements based on information allegedly learned from Attorney Cornelius are privileged communications unless Director Jacobs waives attorney-client privilege. Director Jacobs has not done so. Attorney Cornelius initially stated that he would take no part in an investigation or consideration of the complaint because he is named, repeatedly, throughout the complaint as a witness to or source of Chief Freitag’s allegations. Attorney Cornelius later changed his position and has remained active in discussions and considerations of the complaint, going so far as to suggest that he himself should conduct the investigation. 

"Chief Freitag has every right to express disagreement or unhappiness with the manner in a CYFD Board member, including Director Jacobs, carries out their Board duties and responsibilities. 

"The CYFD Board, however, does not have a legal right to disregard its own legal actions and instead take punitive action against one of its elected members."

In Packard’s statement, she referred several times to Jacob’s letter of response. That letter is here:

"May 12, 2017 

"TO: Chairwoman Darlene Packard, Central Yavapai Fire District FROM: Director ViciLee Jacobs, Central Yavapai Fire District 

"DIRECTOR JACOBS’ RESPONSE TO CHIEF FREITAG’S COMPLAINT DATED MARCH 14, 2017 

"Chief Freitag’s complaint, dated March 14, 2017, alleges that “Director Jacobs has continually disrupted the workplace with unsubstantiated accusations against [Freitag], other senior staff, administrative members, and has disrupted operations on occasion.” Chief Freitag states that he has “a responsibility to report potential hostile conditions to an appropriate authority,” and he asks “the board to take appropriate action to address [Freitag’s] concerns as soon as possible in an effort to avoid any potential liability for failure to provide a work environment free from harassment and hostility as well as to protect the integrity of our professional staff.” 

"Chief Freitag’s complaint, however, does not report any acts of hostile work environment, harassment, or otherwise unlawful or prohibited conduct by Director Jacobs. Chief Freitag’s complaint does not cite to any laws or CYFD Board policies. Notably, CYFD Board Policy 5.5 states: Harassment is another form of discrimination in which a hostile work environment is allowed to exist. The Equal Employment Opportunity Commission (EEOC) defines harassment as, “Verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his/her race, religion, gender, disability, age, color, or national origin”.

"Harassment has the purpose or effect of creating an intimidating, hostile, or offensive environment that unreasonably interferes with an individual’s performance and/or adversely affects an individual’s employment opportunities. An employer must take action to prevent conduct that discriminates against an employee on the basis of a protected status such as sex, age, disability or national origin. [emphasis added] None of the allegations in Chief Freitag’s complaint meet the above definition of “harassment” or “hostile work environment.”

"Chief Freitag’s complaint does not allege any discrimination on the basis of “race, religion, gender, disability, age, color, or national origin.” Therefore, according to CYFD Board Policy 5.5 and the EEOC, Chief Freitag fails to allege any act of harassment or any act of intimidating, hostile, or offensive work environment.

"If Chief Freitag or his staff believe they have been subjected to unlawful discriminatory harassment, federal law requires them to file a charge with the EEOC within 300 days, and state law requires them to file a charge with the Attorney General’s Office within 180 days. Chief Freitag’s complaint lacks sufficient evidence – such as times, places, witness names, and other factual details – to substantiate any of his allegations. As written, Chief Freitag’s complaint does not evince any personal knowledge of his allegations. Indeed, many of Chief Freitag’s allegations appear to be based on hearsay, including privileged statements made by other individuals to CYFD Board Attorney Cornelius. Because Chief Freitag’s complaint lacks sufficient evidence and personal knowledge, and because Chief Freitag fails to complain of any violations of law or CYFD Board Policy, the Board cannot and should not take any action against Director Jacobs based on Chief Freitag’s complaint. A discussion of Chief Freitag’s specific allegations – numbered according to the indented paragraphs of his complaint – follows. 

"ALLEGATION 1 

"Chief Freitag alleges that Director Jacobs “accused” Chief Tharp and HR Manager Brookins “of improper procedural and document filings, collusion, poor recordkeeping and improper assignment of benefits in regards to the Local PSPRS board and retirees.” This allegation does not specify any times, places, or witnesses of the alleged accusations, or any details of the accused “improper” activity; this allegation does not even deny the alleged accusations. This allegation appears to be based on hearsay, as Chief Freitag admits that Director Jacobs did not “directly address her concerns with staff or myself.” This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as a Director, Director Jacobs has a responsibility to ensure that the PSPRS fund is properly maintained by Fire District employees. 

"ALLEGATION 2 

"Chief Freitag alleges that Director Jacobs “accused [Freitag] of illegal activity relating to property acquisitions made by the District in addition to her continued assertions that I refuse to communicate with her.” This allegation does not specify any times, places, or witnesses of the alleged accusations, or any details of the accused “illegal activity”; this allegation does not even deny the alleged accusations. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as a Director, Director Jacobs has a responsibility to address any potential illegal activity related to the Fire District. 

"ALLEGATION 3 

"Chief Freitag alleges that Director Jacobs “accused staff and [Freitag] of mismanaging District funds.” This allegation does not specify any times, places, or witnesses of the alleged accusations, or any details of the accused “mismanaging”; this allegation does not even deny the alleged accusations. This allegation appears to be based on hearsay, as Chief Freitag admits that “These accusations have not been made directly to us.” In addition, Chief Freitag admits that this allegation is based on “statements . . . made to Attorney Cornelius,” which are protected by attorney-client privilege. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as a Director, Director Jacobs has a responsibility to address any potential problems with the management of Fire District funds. 

"ALLEGATION 4 

"Chief Freitag alleges that Director Jacobs “has complained that the financial dealings with CAFMA are either not legal, or something inappropriate is occurring.” This allegation does not specify any times or witnesses of the alleged complaints, or any details of the “not legal” or “inappropriate” activity; this allegation does not even deny any of the alleged complaints. In addition, Chief Freitag admits that this allegation is based on statements “to our attorney,” which are protected by attorney-client privilege. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as a Director, Director Jacobs has a responsibility to address any potential illegal activity related to the Fire District. 

"ALLEGATION 5 

"Chief Freitag alleges that Director Jacobs “has made numerous assertions . . . that she has knowledge of elected officials, community leaders and others in the community stating that [Freitag is] arrogant and there are concerns with [Freitag’s] decision making regarding management of our agency.” This allegation does not specify any times, places, or witnesses of the alleged assertions, or any details of the asserted “arrogant” activity or other “concerns”; this allegation does not even deny any of the alleged assertions. This allegation appears to be based on hearsay, as Chief Freitag admits that the assertions were made “to Attorney Cornelius and others,” and those statements made to Attorney Cornelius are protected by attorney-client privilege. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as a Director, Director Jacobs has a responsibility to ensure proper decision-making and management of Fire District matters. 

"ALLEGATION 6 

"Chief Freitag alleges that Director Jacobs “violated open meeting law with correspondence to two sitting board members along with Attorney Cornelius” in whichDirector Jacobs “accused fellow board members, along with [Frietag] as the Chief, of a lack of honesty, integrity and transparency.” This allegation does not specify any details of the alleged accusations or how those accusations violate the law; this allegation does not even deny any of the alleged accusations. This allegation appears to be based on hearsay, as Chief Freitag admits that the correspondence was made “to two sitting board members along with Attorney Cornelius,” and those statements made to Attorney Cornelius are protected by attorney-client privilege. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as a Director, Director Jacobs has a responsibility to ensure honesty, integrity, and transparency among her fellow Board members. 

"ALLEGATION 7 

"Chief Freitag alleges that Director Jacobs invited the union executive board to attend a meeting “in an attempt to intimidate [Freitag].” This allegation does not specify any details of the alleged “attempt to intimidate.” This allegation appears to be based on hearsay, as Chief Freitag admits that the allegation is based on a phone call in which Mike Kontz told Chief Freitag that “I get the feeling she invited us to the meeting in an attempt to intimidate you Chief,” as well as on a conversation between Attorney Cornelius and Director Jacobs that is protected by attorney-client privilege. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as a Director, Director Jacobs has a responsibility to communicate with the union and arrange meetings as necessary. 

"ALLEGATION 8 

"Chief Freitag makes numerous allegations regarding a phone call between Director Jacobs and Chief Tharp, the reserve pension, and a related investigation of former Assistant Chief Dalton. This allegation does not allege any wrongdoing or misconduct by Director Jacobs. This allegation appears to be based on hearsay, as Chief Freitag admits that the allegation is based on a phone call between Director Jacobs and Chief Tharp. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as a Director, Director Jacobs has a responsibility to ensure that the reserve pension is properly managed. 

"ALLEGATION 9 

"Chief Freitag indirectly alleges that Director Jacobs and her husband “colluded” when Director Jacobs, in conversation with Attorney Cornelius regarding the reserve pension, made “assertions on Tuesday” that “matched those of [Mr. Jacobs’] article on Sunday as well as those addressed by Chief Tharp on Friday.” 

"This allegation does not allege any wrongdoing or misconduct by Director Jacobs, and it lacks specific details to the point where Chief Freitag himself admits he is “unable to explain” the basis of the allegation. This allegation appears to be based on hearsay, as Chief Freitag admits the allegation is based on a conversation between Director Jacobs and Attorney Cornelius, which is protected by attorney-client privilege. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as a Director, Director Jacobs has a responsibility to ensure that the reserve pension is properly managed. In addition, Director Jacobs’ husband is not a Board member, his speech is protected by the First Amendment, and Chief Freitag has no basis to complain about Mr. Jacobs’ actions or to link Mr. Jacobs’ actions to Director Jacobs. 

"ALLEGATION 10 

"Chief Freitag alleges that, until March 8th, Director Jacobs “had been continuously by-passing [Freitag] as the Chief and contacting Chief Tharp, then accusing [Freitag] of refusing to speak with her.” This allegation does not allege any wrongdoing or misconduct by Director Jacobs, and it does not specify any details about the “concerns and legal issues” that Chief Freitag believes should prevent Director Jacobs from communicating with Chief Tharp. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Moreover, as Chief Freitag notes, this matter has already been resolved between Attorney Cornelius, Chief Freitag, and Director Jacobs. 

ADDITIONAL ALLEGATIONS RE: MR. JACOBS 

"Chief Freitag makes numerous allegations regarding communications between Mr. Jacobs and Attorney Cornelius, including an allegation that Mr. Jacobs copied Chief Freitag on an email to Attorney Cornelius in “an attempt to intimidate [Freitag] as well as our CYFD and CAFMA board members.” 

"This allegation does not allege any wrongdoing or misconduct by Director Jacobs, and Chief Freitag admits that “this point above concerning Mr. Jacobs’ email is not an issue with Director Jacobs.” This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. Director Jacobs’ husband is not a Board member, his speech is protected by the First Amendment, and Chief Freitag has no basis to complain about Mr. Jacobs’ actions or to link Mr. Jacobs’ actions to Director Jacobs.

"ADDITIONAL ALLEGATIONS RE: DIRECTOR JACOBS 

"Chief Freitag alleges that “Attorney Cornelius has spent many, many hours on the phone in the past few years with Director Jacobs seeking to address her concerns,” and that “in many of these conversations she has complained about and/or accused [Freitag] as well as other staff members of a variety of possible errors or omissions.” Again, conversations between Attorney Cornelius and Director Jacobs are protected by attorney-client privilege. This allegation does not allege any harassment or hostility, or any otherwise discriminatory action based on a protected class. As a Director, Director Jacobs has a responsibility to address “errors or omissions” by Board members. 

"Chief Freitag states that his allegations portray “an untenable work environment for me as well as staff.” This statement is not supported by the record. None of Chief Freitag’s allegations amount to a violation of CYFD Board Policy 5.5, and none of Chief Freitag’s allegations constitute harassment or any act of intimidating, hostile, or offensive work environment. Chief Freitag states that Director Jacobs’ “behavior does not seem in line with the accepted values of this organization as adopted by the board through the Compass, or in line with the Board Policy Manual concerning the conduct of board members.” Conspicuously, Chief Freitag fails to cite to any specific values or Board policies that Director Jacobs allegedly violated. Director Jacobs, as an elected official, took an oath to faithfully and impartially discharge the duties of her elected position, which are established by CYFD Board Policy 3.2 and A.R.S. § 48-805.

"Pursuant to CYFD Board Policy 3.3, paragraph 3, the Board’s “primary responsibility is the formulation and evaluation of policy and the employment of a Chief Executive Officer (Fire Chief) to administer District business under the direction of the Board”; Chief Freitag is the Fire Chief. Thus, under the CYFD Board Policies, Chief Freitag has a duty to administer District business under the direction of the Board. Likewise, one of Director Jacobs’ primary responsibilities is to direct Chief Freitag to administer District business.

"Chief Freitag’s complaint, therefore, is nothing more than an expression of his disagreement with the manner in which Director Jacobs carries out her duties and responsibilities as a Director. Chief Freitag purports to submit his complaint “in an effort to avoid any potential liability for failure to provide a work environment free from harassment and hostility as well as to protect the integrity of our professional staff,” yet he fails to report any acts by Director Jacobs that could possibly constitute hostile work environment, harassment, or otherwise unlawful or prohibited conduct under CYFD Board Policy 5.5 or any other Board Policy. Because Chief Freitag’s complaint lacks sufficient evidence and personal knowledge, and because Chief Freitag fails to complain of any violations of law or CYFD Board Policy, the Board cannot and should not take any action against Director Jacobs based on Chief Freitag’s complaint."

Further Resources:

CYFD Board Member Jacobs Subject of Complaint Letter by Chief Freitag

CYFD Board Chair Packard Makes Statement Regarding Director Jacobs