Committee Minutes

MINUTES
Grand Forks Civil Service Commission

SPECIAL MEETING
Tuesday, September 23, 2003
8:00AM
City Hall Council Chambers

Appeal of Mayor’s Decision
Beverly Benda-Moe

The Grand Forks Civil Service Commission was called to order at 8:09AM by
Chairperson Kvasager. Commissioners Bredemeier and Nies present. Commissioners
MacGregor and Johnson absent.
Attorney Ron Fischer present representing the Civil Service Commission and
acting as Hearing Officer.

Assistant City Attorney John Warcup present representing the Mayor. Attorney
Kerry Rosenquist representing Beverly Benda-Moe.

Public Health employee Beverly Benda-Moe is appealing the decision of Mayor
Michael Brown in her grievance. The appeal was timely filed with the Civil
Service Commission.

Mayor Brown concluded that the grievance was not sustained, as there was
insufficient evidence to validate the grievance and was dated July 22, 2003.

The nature of the grievance by Ms. Benda-Moe included allegations of the
employee being subjected to retaliation, harassment, lying and a hostile work
environment against Ms. Benda-Moe’s the Director of Public Health, Don Shields.

Discussion was held by Attorney Fischer regarding his role as counsel to the
Commission. Discussion held regarding the difference between an appeal of
disciplinary action and a grievance.

Attorneys were asked to provide statements regarding what they feel the issues
are and what they believe the standard of review is in this case subject to
6-0704.

Attorney Rosenquist represents the appealing party and bears the burden of
proof in this case.

Attorney Rosenquist presented arguments supporting Ms. Benda-Moe’s contention
that the actions taken by Mr. Shields toward his subordinate, Ms. Benda-Moe,
were inappropriate under the circumstances. He contended that there was
retaliation and harassment of Ms. Benda-Moe causing a workplace environment
that was not conducive to good employment.

Mr. Rosenquist stated that although the Mayor made his decision based primarily
on the memorandum and the information he had in front of him, he still should
have found that there was inappropriate behavior by Mr. Shields and in part,
certainly, the grievance by Ms. Benda-Moe should have been affirmed.

Attorney John Warcup, Assistant City Attorney representing the Mayor stated in
making his decision, the Mayor met with Ms. Benda-Moe on June 30, 2003 and
discussed the issues with her, received evidence and information from her and
listened to her grievance. The Mayor instructed Dwight Kalash to investigate
the matter before the Mayor, so the Mayor could have more information on which
to base his decision. Mr. Kalash interviewed not less than 12 people in making
his investigative report, including Ms. Benda-Moe and Mr. Shields, the two
parties who are most at issue in this particular case. In interviewing all the
people and reviewing all the evidence that Ms. Benda-Moe had to present to Mr.
Kalash, he wrote a 12-page report, setting forth his findings and his review of
the evidence presented to him. Based upon that investigation, the review of the
grievance by Ms. Benda-Moe and the Mayor’s personal meeting with Ms. Benda-Moe,
the Mayor did not sustain the grievance.

The Commission’s review of the Mayor’s decision is governed by the City Code
6-0704, burden of proof by Ms. Benda-Moe, which she has to present here today,
and show by clear and convincing evidence, that the Mayor abused his discretion
in not sustaining Ms. Benda-Moe’s grievance. He stated the Mayor’s decision was
based upon a rational and thorough exam of all of the evidence and information
presented to him, both by Ms. Benda-Moe and the investigation completed by Mr.
Kalash. It is the Mayor’s position that the Commission should find that he did
not abuse his discretion that the decisions he made were a rational, well
thought out decisions, which should be held up by the Commission.

Mr. Rosenquist contends there are three specific areas committed by Mr. Shields
toward Ms. Benda-Moe dealing with retaliation.
The investigation by Mr. Kalash, and documents, the circumstantial evidence and
direct comments made from people he interviewed, certainly sustains the
allegation by Ms. Benda-Moe that she was the subject of retaliation by her
supervisor, Mr. Don Shields.

Ms. Rosenquist stated there was an on-going dispute initiated by Ms. Benda-Moe
with regard to a fragrance issue. Earlier this year, the matter came to a head
when Ms. Benda-Moe asked Mr. Bunce about the fragrance policy issue and he
stood by the Department Heads decision and it would stand. Mr. Rosenquist
stated Ms. Benda-Moe administers the City Wellness Program. In close proximity
of this time frame, Ms. Benda-Moe, sent out an e-mail to departments regarding
a smoking cessation class and comp time hour offered for taking the class. Mr.
Shields stated HR had received many angry calls from non-smoker who also wanted
the comp time hours – Mr. Shields sat down with Ms. Benda-Moe and intimidated
her, yelled at her, shook his finger at her which is substantiated by Mr.
Kalash’s report. The wellness program has subsequently been taken away from Ms.
Benda-Moe.

Again in close proximity of time frame, there was a departmental meeting where
Mr. Shields discussed eliminating the nutrition division within the health
department. He stated the duties of the City nutritionist could be absorbed by
the Nursing division or other departments. Mr. Kalash’s report very cursory
states that interviews with Nursing staff substantiate the assertion that Mr.
Shields was going to eliminate Ms. Benda-Moe’s position. Ms. Benda-Moe felt her
position was threatened and that it was a direct result of the stand she took
on the fragrance issue. After the meeting, Mr. Shields informed the staff that
it was his decision to make as the department head, which reiterates that there
was an aura of intimidation. Everything Mr. Shields said is true, but in what
context?

Another issue is the May 30, 2003 letter of counseling. Based on the
departmental reorganization meeting and the wellness program issue, Ms.
Benda-Moe felt threatened and wanted to substantiate the allegations against
her. She sought out information regarding allegations, including numerous calls
to HR regarding the comp time issue and come to find out they had received no
such calls. As a result of seeking out the information, she received a letter
of counseling. The letter disregards the EAP program policy. The supervisors’
manual explains how things are going to be done. This was an effort to make Ms.
Benda-Moe stop, back off, resign, etc. Mr. Kalash’s report glosses over or
completely omitted this and other information. When the letter was presented to
Ms. Benda-Moe, Wally Helland was present, and was never interviewed. Mr.
Helland was visibly upset by the conduct of Mr. Shields during this procedure.

We’re here because of the deterioration of the work environment, the harassment
and retaliation in the work environment. The issue should have been mediated
and now Mr. Shields is in an untenable situation. We ask that the Commission
find that Mayor Brown’s decision be overturned and for a finding that there has
been retaliation by Mr. Shields, and that the Commission takes steps to assure
that doesn’t happen again.

Chairperson Kvasager asked Mr. Rosenquist if the decision he is asking of the
Commission is the decision of the Mayor on the basis of harassment. Mr.
Rosenquist asks that she be protected from further harassment, behaviors and
retaliation by Mr. Shields. For relief, she is asking that the letter of
counseling put in her file on May 30, 2003 be destroyed or removed from her
City personnel file and from Mr. Shield’s personal file, and requests a letter
of apology, she asks that her grievance be a part of Mr. Shield’s file, not
hers, and that the hostile work environment be fully investigated and presented
to the Mayor. She requests full answers to all questions and not very short
summary answers in the interviews with health personnel. She’s also asking that
Mr. Shields be placed on probationary status, and that his actions be more
closely monitored by his supervisor, that he be referred for anger management
and asks that there be a policy on the fragrance issue in the health
department. He stated Ms. Benda-Moe had asked for special accommodations and
was not afforded any accommodation because of her lost work productivity due to
the fragrance issue.

Attorney Fischer asked when framing the issue for the Commission, if Mr.
Rosenquist agrees that the June 5, 2003 letter from Ms. Benda-Moe to the Mayor
is the grievance . Mr. Rosenquist agreed.

Attorney Fischer stated with regard to the requests for relief, what Mr.
Rosenquist is relying on for authority of the Civil Service Commission to place
Mr. Shields on probation and to undergo anger management in a case where the
Commission is simply being asked to overturn the decision of the Mayor that the
grievance should not be sustained. It seems to me that if the Commission were
to determine that there was merit to the grievance, this would then fall back
on the Mayor and whether or not to initiate disciplinary proceedings, which are
a totally separate process, that Mr. Shield’s would be entitled to some due
process, entitled to a hearing, he would be entitled to an appeal, etc. I’m
bewildered at how you can suggest to the Commission that if in fact they
sustain the grievance that they can do the things you are suggesting. I’d be
interested in hearing what authority you have for that.

Attorney Rosenquist stated he was not suggesting that the Commission had that
authority, he was just answering Mr. Kvasager’s question.

Attorney Fischer asked if Mr. Rosenquist agreed, that if in fact the Civil
Service Commission were to find clear and convincing evidence that an abuse of
discretion has occurred here, such that the Mayor’s decision should be
reversed, at best the matter would simply go back to the Mayor to take whatever
action, if any, he deemed appropriate? Attorney Rosenquist agreed.

Attorney Fischer asked if comp time hours had been offered in the past for the
smoking cessation class? Attorney Rosenquist stated they had been.

Attorney Fischer stated so there are no factual disputes on the record, he
asked Mr. Warcup to confirm or refute that the smoking cessation class had been
offered in the past.

Attorney Rosenquist stated in Mayor Brown’s letter to Ms. Benda-Moe, he did
refer to the different parts of the grievance, which were retaliation,
harassment, lying and a hostile work environment. He relied on the information,
documentation and investigation of the City Attorney’s office. Although the
report was lengthy, not all of the information appeared in the report,
including full statements by Kathy Mack and Wally Helland. There was also no
reference at all to the EAP procedures, which should have been followed. We
believe the letter would not have been written had EAP procedures been
followed. There was no basis for a letter of counseling in any event. Based on
that, we believe even though, the report lacked that information, there was
enough information in the report to show that there was harassment and
retaliation amounting to a hostile work environment created by Mr. Shields. We
would ask the Commission to reverse the Mayor’s decision and ask that the Mayor
review the grievance again.

Attorney Warcup stated he has concerns with the packet, which Mr. Rosenquist
refers to on a number of occasions during his argument. The City Attorney’s
office was never presented with this packet and has concern that the Mayor has
not received all of the information, which the Commission has received in this
packet Mr. Rosenquist refers to. If in fact the packet contains additional
information above and beyond what the Mayor has privy to, it should not be
considered by the Commission, as the Mayor did not have the benefit of the
information to make his decision.

Attorney Fischer stated there is a misunderstanding, the information the
Commission has is the material that was filed by Ms. Benda-Moe with respect to
her grievance. There has been no submission since then. Mr. Fischer stated that
all information presented was presented to the Mayor and the Commission by the
Human Resources Department. All information was provided to the Mayor that was
provided to the Commission.

Attorney Warcup stated that Mr. Rosenquist has the burden of proof in this
matter. This burden of proof must show by clear and convincing evidence that
the Mayor abused his discretion in deciding not to sustain her grievance. Mr.
Rosenquist’s arguments have failed to complete that burden. It’s a very high
burden. It’s not a decision of what would you do if you were put in this
position. He has to show by clear and convincing evidence that the Mayor abused
his discretion making the decision. We are not here to re-decide the issues,
but rather just to review what the Mayor did. Mr. Rosenquist states this is
not relating to the fragrance policy. However, as the grievance states and Mr.
Kalash’s report states, the current complaint has arisen as a direct result of
Mr. Shields’ refusal to implement the (fragrance) policy as a department
policy. Everything goes back to the fragrance policy.

Mr. Warcup stated that Mr. Rosenquist has no clear and convincing evidence to
prove that the Mayor, Mr. Shields and Mr. Bunce, abused their discretionary
authority not implement a department wide fragrance policy. Mr. Rosenquist
admits it is a discretionary issue. They decided not to implement a department
wide fragrance policy and that is the essence of the complaint here today. Ms.
Benda-Moe claims retaliation in a number of forms. The one thing Mr. Rosenquist
never told you was that there was never any actual harm that happened to Ms.
Benda-Moe. He did not show that she was ever terminated, disciplined, or
demoted. He said she felt threatened. Is a threat actionable in this case? No
it is not. Is the Mayor’s decision abuse of his discretion? No it is not. Mr.
Rosenquist claims that Mr. Kalash should’ve interviewed more people in making
his report and should have interviewed them in a different order. Those are
both clearly discretionary items on how an investigation is completed. I don’t
know why the order would be important. Very often, the complainant is the last
person to be interviewed in a situation. That is the standard procedure, and is
the procedure Mr. Kalash followed in this case. There were also people that Mr.
Kalash wanted to interview but those people did not wish to participate in this
action, which should not be held against Mr. Kalash or the Mayor. One
interesting thing is that Mr. Rosenquist seems to think this department will
run itself and Mr. Shields as the department head, does not have the authority
to make decisions on departmental organization. He stated Mr. Shields stated it
was his decision to keep or not to keep the Nutrition department or to merge it
into the Nurse’s division. He seems to intimate that somehow that is not Mr.
Shield’s decision or discretion. In fact, it is very much so, Mr. Shield’s
decision on how the department is organized. He is the department head.
Certainly the department head sometimes has to make decisions, which aren’t
entirely popular with all the subordinates. A department head will take comment
and in fact, Mr. Shields did take comment with regard to the organization of
his department, but as Mr. Shields said, and as was also alleged by Mr.
Rosenquist, the decision rested with Mr. Shields, which is an appropriate place
for that decision to rest. Just because a subordinate is not happy with the
decision of the department head, does not make the item grievable or
actionable. In this particular case, it is Mr. Shield’s decision on how the
department is organized.

Attorney Warcup stated Mr. Kalash’s report is a well thought out, well reasoned
investigation of all of the pertinent issues and facts, which apply to this
situation. At the end of Mr. Kalash’s report, I don’t believe the department
was found to be a perfect working model of a public health department. But that
is not Mr. Kalash’s job to find out what could be changed or run better. His
job and the Mayor’s as well, are to determine if the grievance is actionable
and should be upheld. That was Mr. Kalash’s task and the Mayor’s decision. Your
task is to determine whether the Mayor abused his discretion in finding that
the grievance should not be upheld. Mr. Fisher had asked about the smoking
cessation policy and I would need to confer with the Public Health Department,
I don’t have personal knowledge regarding prior incidence of the smoking
cessation program. I don’t know how you want to handle that, if you just want
me to confer with them.

Attorney Fischer stated Mr. Warcup could simply consult with them and we can
take a brief adjournment rather than testimony being presented.

Attorney Warcup stated for the record is Mr. Kalash’s report along with the
attachments provided. I believe it is a well thought out, well-reasoned and
sustainable report and investigation on this matter. As is aggrieved by the
parties, both Mr. Rosenquist and myself, the burden in this particular hearing
is to show by clear and convincing evidence that the Mayor abused his
discretion. Based upon information presented today, there has been no showing
that the Mayor abused his discretion, much less, a clear and convincing showing
of abuse of discretion. For those reasons, the Mayor requests that the
grievance, and his denial of the grievance, be upheld and that this appeal
presented by Ms. Benda-Moe be dismissed.

Attorney Fischer asked if any of the Commissioner’s have any questions. (There
were no questions by the Commissioners.) Attorney Fischer stated he has a few
questions. With regard to the letter of counseling issue that Ms. Benda-Moe has
raised, I believe you have that letter which was presented to Ms. Benda-Moe by
Mr. Shields, upon what authority in the City Code or otherwise, did Mr. Shield’
s have to present, in essence, a demand that Ms. Benda-Moe undergo counseling?
My understanding by City Code and by the civil service standard, is that an
employer, City of Grand Forks or a department head can ask for a psychological
evaluation to be done, but I’m wondering what authority there would be for
demanding that an employee undergo counseling? Mr. Warcup stated that he is
not aware of any authority within the Code that would allow a demand of this
nature to go forward. The Commission should be aware that the letter was
written, it was delivered and no further action was ever taken. Attorney
Fischer asked Mr. Warcup if he believed the department head has discretion to
demand an employee undergo counseling? Attorney Warcup stated he did not
believe a department head would have the discretion to demand an employee
undergo counseling. Attorney Fischer stated that is all he had.

Attorney Warcup asked for a brief recess to consult with the Public Health
Department regarding the smoking cessation program. Attorney Fischer with the
Chairs approval asked for a 10-minute recess.

The meeting recessed at approximately 9:55AM.

The meeting was called back to order by Chairperson Kvasager at approximately
10:05AM

Attorney Warcup stated the smoking cessation classes have been offered in the
past as part of the wellness program. The issue that arises as far as this
particular offering of the class, was not that it was plan, but rather that Ms.
Benda-Moe in setting forth this program, did not coordinate her efforts with
her department head, nor her efforts with the HR department who actually
administers the wellness program. Her lack of coordination with both the
Department Head and the HR Department caused confusion among the employees,
confusion among other department heads and quite frankly caused a mess. The
employees had questions of department heads who did not know about it as they
were not consulted ahead of time and quite frankly, caused more problems in the
way the program was started. It’s the manner in which the program was employed
rather than the program itself. Ms. Benda-Moe, on her own, notified employees
causing confusion. Some employees felt they would get additional bonus hours.
Mr. Bunce and Mr. Shields received complaints about the program.

Attorney Warcup stated the Employee Assistance Program is a program authorized
by City Council and in that program, the Department Head refers an individual
to Human Resources if it seems appropriate. In this particular case, it was not
a mandatory referral. It was not a mandatory requirement that she enter into
the program, but rather to contact Human Resources to inquire about the
program. At that point there can be three options of getting into the EAP
program, one is a referral, where the employee or department head simply refers
to employee assistance, where the employee follows through as necessary; the
second can also be a mandatory referral where the employer requires the
employee to go through the EAP program. That is not what was done in this case.
In this case, it was simply a referral to the Employee Assistance Program to
see what help, if any, could be provided to the employee. In this particular
case the letter was where it ended. Mr. Shields recommended that she contact
Human Resources regarding the EAP program. She did in fact contact Human
Resources and that’s where it ended.

Attorney Fischer asked if Mr. Warcup was referring to the policies and
procedures that are part of the EAP? Attorney Warcup stated yes. Attorney
Fischer stated because that document is not officially on the record and both
counselors have referred to it, do either attorney have objection to the Civil
Service Commission in reviewing this appeal, taking judicial notice of that
policy and procedures manual? Neither attorney had objection. Attorney Fischer
stated the Commission would do that. Attorney Warcup stated the referral done
in this particular case was simply a referral. Attorney Rosenquist stated that
Mr. Warcup is exceeding what he was granted before the recess in so far as
discussion items. Attorney Fischer stated if this were a court trial he would
be inclined to agree, however, Mr. Warcup did not rest in any formal sense and
moreover this is an informal procedure. Your objection is noted Mr. Rosenquist,
but is overruled. Mr. Warcup will be allowed to present the cities case with
respect to the issue of referral for counseling.

Attorney Warcup stated this referral was simply that, not a mandatory
requirement. Commissioner Kvasager asked if this was a referral with regard to
the sensitivity to fragrance issue? Attorney Warcup stated no, as a part of the
investigation, the letter in question, is attached. It does not refer to the
fragrance issue, in and of itself. As a part of the attachments, the letter in
question is dated May 30, 2003.

Attorney Fischer stated the Commission does have the letter.

Attorney Warcup stated in conclusion, as the Commission is well aware, you must
find by clear and convincing evidence that the Mayor abused his discretion in
making the determination not to sustain the grievance by Ms. Benda-Moe. In this
particular case, Ms. Benda-Moe has not shown by any evidence that the Mayor
abused his discretion, much less by clear and convincing evidence. The Mayor’s
decision is based upon his meetings with Ms. Benda-Moe, his prior knowledge of
this particular matter with Ms. Benda-Moe, the investigation completed by Mr.
Kalash, in which there were no fewer than 12 interviews. The Mayor’s decision
is well thought out and based upon the information presented to him by the
investigation and the information presented to him by Ms. Benda-Moe. For those
reasons, the Mayor requests that the decision he has set forth, be upheld by
this Commission and that the appeal be dismissed. Thank you.

Attorney Fischer stated so he is clear, what Mr. Warcup is saying to the
Commission with respect to the EAP referral is that the letter of May 30, 2003
should be read by this Commission as simply being a recommendation for referral
as opposed to a mandatory direction for counseling.

Attorney Warcup stated correct. The EAP program is administered by the HR
Department and Mr. Shields directed Ms. Benda-Moe to contact the Human
Resources Department and inquire about the EAP program itself, but did not
require participation in the EAP program, but rather recommended that she seek
the assistance of that program.

Attorney Fischer stated he just wanted to make sure the Commission understood
the City position.

Attorney Fischer asked if there were any further questions of the Commission
for Mr. Warcup. There were no further questions.

Attorney Rosenquist stated the suggestion that the letter of counseling of May
30, 2003 is a mere request to contact Human Resources and not an absolute
directive is absolutely ridiculous. If you’re an employee and your being yelled
at by your employer and you get a letter of counseling and it says basically
that you’re a disruption in the workplace and that you have violated numerous
internal policies and procedures and your going behind the back of your
department head and these are all conclusionary allegations, there was nothing
brought up to her that was specific, and then you are given a letter that says
you are hereby referred to the City’s employee assistance program for help in
resolving issues and to allow you to discover ways to adapt and modify the
unacceptable behaviors you presently employ, you must contact Human Resources
as part of this EAP referral by Monday, June 2, 2003. That is a directive. It’s
not a suggestion. It’s an absolute directive and for any employee to construe
that otherwise and not follow the department head’s directive when reading
something like that, would certainly to me, place an employee in a position to
think that they were going to be subsequent either retaliation or subsequent
disciplinary action. Certainly Ms. Benda-Moe in reading that is left with no
other conclusion than that she had to call HR and she had to make an
appointment with EAP, just a plain reading in this letter, will show each of
you that this was a directive, not a suggestion. We’re not here to dispute the
outcome of the fragrance issue, that’s not why we’re here on this appeal. We’re
here to talk about retaliation and hostile work environment. The City has
suggested that no actual harm has been done to Ms. Benda-Moe. Yelling at her
for doing her job. This was her job. The smoking cessation part of the wellness
program, was her job. More evidence outside the grievance was presented to you.

Attorney Rosenquist stated that Mr. Warcup had the opportunity to talk to
principals out in the hall and told you that all these people commented on her
taking the bull by the horns in implementing the smoking cessation class and
that it caused confusion among the department heads and they didn’t know what
to do because of her e-mail that was sent out. It was her job and never had to
go through department heads to implement the portions of her job before.
Interestingly enough, the e-mail went out with her name on it as being the
director of the smoking cessation program, and she didn’t receive any
complaints and yet Mr. Bunce said that HR received a lot of complaints and we
hear that Mr. Shields received a lot of complaints. None of the complaints are
annotated on any of the material. What is annotated is that Ms. Benda-Moe
called up HR and asked who was complaining. No response, because nobody was
complaining. It’s ridiculous. We’re here trying to familiarize what happened in
a previous time in an argument that isn’t supported by facts, and yet she is
accused of making this big mess and turmoil in the city with all of these
department heads. It just isn’t there. As you go through all the materials, you’
ll find, it’s not there. But yet, she was yelled at. She was not yelled at
within the confines of an office but was yelled at where other people could
hear and see that she was being yelled at and in Mr. Kalash’s own report, she
was sat down and Mr. Shields was standing over her, shaking his finger at her,
yelling at her for doing her job. But Mr. Warcup states that is not actual
harm.

Going in front of the department and suggesting that the Nutrition Program be
eliminated at a time when Mr. Shields was having issues with the staff that Ms.
Benda-Moe was taking and saying that it was pure coincidence is equally as
ridiculous. Again, you’re a one person department or two people, and you find
out that your department is going to be eliminated after many, many years, is
that not grounds for feeling that you are being retaliated against? And yet,
the City purports that this is just mere coincidence, that it is Mr. Shields’
prerogative to reorganize his department as he sees fit and if people’s jobs
happen to be eliminated, well that’s his job and those are the tough decisions
that he has to make. City Code will tell you that only the Mayor can eliminate
jobs.

Of course, then, we’re back to the letter of counseling. You get a letter of
counseling, pretty much out of the blue, where you’re sat down and told you
cannot talk. You cannot debate this issue. You will get a copy of the EAP
program manual and I would ask that they also get the supervisor’s manual as
well, HR has copies of this. Attorney Fischer asked Mr. Warcup if he objects.
Mr. Warcup did not object, however, stated this is an older version of the
supervisor’s manual, which may not have been in effect during the time of
question, which is May 30, 2003. (HR will supply counsel and the Commission
with copies of the correct version of the Supervisor’s manual in effect May 30,
2003 for deliberation.) Attorney Rosenquist stated in either manual there are
dos and don’ts that will appear. The do’s are that you take time and ask an
individual for feedback. It’s in the manual, that’s what the supervisor is
supposed to do. They’re not supposed to bring in an employee in the presence of
another employee and chastise that employee and tell that employee that you
better shape up or ship out and order that employee to go to the training. The
May 30th letter speaks for itself. One of the don’ts that you’re never supposed
to do is to never raise issues without documentation. I would submit to you,
that a review of Ms. Benda-Moe’s file, would show that she’s not been
disciplined in any manner what-so-ever in her years of employment with the
city, nor has she ever received substandard employment reviews. Yet, on May
30th, in the counseling letter, there were conclusionary statements,
generalized statements that she made people cry, that she was causing a
disruption in the workplace, and that she was generally the problem and that
she better get a handle on it. There’s no documentation on that what so ever.
It was an attempt to really cause her to cease and desist and not put forth
that part of her job in the Health department which is being a proponent in the
Health department for what she believed was right. She believed the fragrance
issue was something she should pursue further. You can’t use these kinds of
procedures to intimidate an employee. It’s not allowed. We would again ask the
Commission when reviewing Mr. Kalash’s report that the Mayor did abuse his
discretion.

Attorney Rosenquist stated of the report itself, in talking to the nursing
staff, Debbie Swanson, Kathy Mack and some of the other people, reported to Mr.
Kalash who reported in his report that there was no disruption in the Health
Department. They felt that what she was doing was right and proper and felt she
was right, but didn’t choose themselves to take the issue up any further, Ms.
Benda-Moe did. However, there was strong support within the Health Department
that she was right, that she should precede. The letter of May 30th says it’s
generated concern and disruption of activities inside and outside of the
department. There is absolutely no evidence of that. Yet, that’s in the letter
of counseling, this disruption she has caused. Again we ask that you find that
the Mayor abused his discretion, that there is clear and convincing evidence
that, in fact, the harassment and hostile work environment existed within the
Health department and that Ms. Benda-Moe was the subject of this hostile work
environment and that the Mayor’s decision should be reversed.

Attorney Fischer stated just so the record is clear, there is no factual
dispute that the Nutrition division still exists and has not been eliminated,
that Ms. Benda-Moe has not been demoted in any way, that she has not received
any deduction in pay. Is that correct? Mr. Rosenquist stated that is correct.
The Commission had no further questions for Mr. Rosenquist.

Attorney Fischer called the oral arguments and presentations to a conclusion.
The Commission will adjourn and not issue a decision on this case today. They
will deliberated and review the material in addition to what has already been
submitted, the EAP documents that have been added to the record as agreed by
Counsel. Attorney Fischer has one concern under Code, the Commission is
required, unless the parties agree, to render its decision within 30 days of
this date. I’m not sure of the scheduling. I ‘m asking that both counsels would
agree that if the Commission needs to schedule a meeting beyond the 30 days, so
that I may be present, that you would agree to do that. Is there any objection
to that? Attorneys Warcup and Rosenquist had no objection.

ADJOURNMENT
Chairperson Kvasager adjourned the Special Meeting of September 23, 2003 at
approximately 11:15AM

Respectfully Submitted,



Daryl Hovland
Assistant HR Director