Committee Minutes

MINUTES
Grand Forks Civil Service Commission

SPECIAL MEETING
Thursday, November 13, 2003
4:00PM
City Hall Room A302

Civil Service Commissioners
Discussion with attorney, Ron Fischer
Regarding procedural matters and
Facts and Conclusions in the Beverly Benda-Moe
Appeal and Master Police Officer Appeal

The Grand Forks Civil Service Commission was called to order at approximately
4:03PM by Chairperson Kvasager. Commissioners Bredemeier, MacGregor, Johnson
and Nies present.

Attorney Ronald Fischer present as counsel for the Civil Service Commission.

Chairperson Kvasager stated the Commission was in receipt of the decision as
drawn up by Attorney Fischer. Commissioner Kvasager stated he was concerned
with the allegations made relative to Mr. Shields which he could not
substantiate and had no way of countering them as part of the record. As the
Commission is wiping the slate clean for Ms. Benda-Moe, then by the same token,
Mr. Shields should be entitled to the same treatment. This issue is one that he
would like discussed with Attorney Fischer for some legal advice.

Commissioner Nies stated she is not sure she agrees with the premise. Mr.
Shields is not the person bringing forth the appeal. Commissioner Kvasager
stated this is not the only case he is concerned about. He’s concerned about
cases such as the appeal involving Ms. Sletten, were she was accused of various
allegations, which were unsubstantiated.

Attorney Fischer stated he discussed that particular case with Attorney
Swanson. The findings of fact and conclusions in that case, had argumentative
and slanderous things in the record, which were an offhand comment made by one
of the witnesses which were not substantiated and found it’s way into the
findings. This case is different in that, there is a record on file, however,
in the way the matter came to the Commission, there was no input given to Mr.
Shields at the Mayor’s level. Ms. Benda-Moe took her complaint directly to the
Mayor. An investigator was hired and they never obtained any direct input from
Mr. Shields in the process, so an extensive amount of paperwork was obtained.
Mr. Shields’ position and concern is that he was never afforded the opportunity
to provide his side of this issue.

Attorney Fischer reiterated that the Commission is making the decision in the
case and not he. He stated he is drafting the document the way the Commission
wishes and if the Commission wishes to have the two specific references with
regard to Mr. Shields taken out of the findings and conclusions, they can do
that. Attorney Fischer stated it was his advise to the Commission not to allow
testimony or response by Mr. Shields.
If the Commission wishes, having thought about it some more, to change the
draft, to address the concern that has been raised, they can take out language
with regard to Mr. Shields, however, the Commission can leave in that the
issuance of the May 30th, 2003, letter of counseling, was presented in the
presence of a third party, and as non-negotiable, both of which violate city
policy, which is supported by the record. The other issue would be reference to
the climate existing between Mr. Shields and Ms. Benda-Moe, which can be taken
out of the draft, without affecting the decision what so ever. Attorney Fischer
offered a revised final draft, which is offered for signature. Attorney
Fischer stated the relationship between Mr. Shields and Ms. Benda-Moe is not
before the Commission.

For the final finding, the Commission agreed and signed on the following
conclusion in the Benda-Moe Appeal:
Based on a complete review of the record, the Commission finds the incident
regarding the May 30, 2003 Letter of Counseling violated City policy and the
standard of review does not apply to grievances based on a claim that a City
policy has been misapplied. With regard to the May 30, 2003 Letter of
Counseling, Ms. Benda-Moe’s grievance is sustained. In all other respects the
Commission affirms and upholds the Mayor’s decision to deny the grievance.

With regard to relief, the Commission finds Ms. Benda-Moe has suffered no
adverse employment action, other than having the Letter of Counseling as part
of her personnel file as a result of this matter. Based upon the foregoing, the
Commission ordered 1) that the May 30, 2003 Letter of Counseling be totally
expunged from Ms. Benda-Moe’s personnel file; 2) that all other relief
requested by Ms. Benda-Moe in her grievance is denied; 3) That the Director of
Human Resources shall forward a copy of this decision to Ms. Benda-Moe and her
attorney, as well as the Mayor and the City Attorney; and 4) that his decision
is final as to all matters concerning Ms. Benda-Moe’s grievance pursuant to
City Code 6-0702(4).

Discussion held.

Chairperson Kvasager asked what type of policy or procedure the Commission
could implement to ensure fairness.

(Commissioner Johnson entered the meeting at approximately 4:35PM.)

Attorney Fischer stated it is his recommendation, that although it is not
provided for in the Code itself, neither is it prohibited, that once a decision
has been drafted by the Commission, relative to either a grievance/appeal, or a
disciplinary matter appeal, the decision draft could be circulated to the
parties for comments before a final decision is then entered. Chairperson
Kvasager stated that would be his preference, because the idea that accusations
could be made by either employee or supervisor, and have that made part of the
record, is not fair.

Discussion held.

Ms. Wilkie stated the Commission can establish their own hearing procedures, in
so far as the Code reads, the Commission could go so far as to not even having
a formal appeal hearing. They could simply obtain the record for review and
render a decision within a 30-day time period. Chairperson Kvasager stated the
process has changed in the past few years, so the Commission just needs to have
a procedure, because now, the only thing we are hearing is if the Mayor has
abused his discretion, we’re just not used of this process.

Mr. Bunce stated we don’t have procedures in place for the process. The way I
see it, as the Human Resources Director, is when a grievance is filed, if the
HR Director determines the item is not grievable, then the employee would
grieve the discretion of the HR Director, and the appeals process would begin
from that point, what happens now is, it doesn’t make a difference, everything
winds up on the Mayor’s desk anyway.

Chairperson Kvasager agreed stating that if the HR Director determines there is
no grievance, then the employee could come to the Commission afterward and
appeal that decision up the chain.

Ms. Wilkie, suggested that HR and Attorney Fischer could come up with some
procedures and ideas for the Commission’s review. Commissioners could submit
their individual ideas to HR.

Attorney Fischer stated under 6-0205, the authority lies with the Commission to
set rules and regulations, subject however, to approval and adoption by the
City Council. Mr. Bunce stated he would support that process. Attorney Fischer
stated the disciplinary process in the Code is quite laid out and specific,
however, the grievance process is vague, other than the fact that the
Commission must render a decision no less than 5 and no more than 30 days from
the time of the appeal. It is true that it is discretionary whether the
Commission wants to have a hearing or not, the Code says may have a hearing.
Short of that, it’s wide open.

Commissioner Kvasager stated that when listening to appeals of grievances, we
are asked to review if the Mayor has the authority to make that decision, and
in fact, he does in approximately 99% of the cases and the employee has to
prove by clear and convincing evidence that the Mayor has abused his
discretion.

Attorney Fischer stated the intention, when dealing with grievances, is to
provide a very expeditious process that is not cumbersome, that is conducive to
promptly resolving the problem, and the premise is to do what is right, not who
is right. However there are constraints, when looking at discretionary matters,
most of the things in a grievance area, are discretionary and you have to have
clear and convincing evidence that discretion was abused, which is a doubly
high standard, however, in my opinion, if you find that what is grieved, and
the employee can prove, it is a violation of rule, regulation, statute,
procedure or policy, there is no discretion about that. Then the Commission can
do what it needs to do.

Ms. Wilkie asked if the Code then needs clarity and changes to the ordinance
should be introduced. Attorney Fischer stated you can do that, but the question
is, is it going to be counterproductive to the purposes behind the policy,
procedures, etc. Attorney Fischer said his suggestion is for the Commission to
identify the problems the Commission has had in dealing with grievances, review
those, and then determine what type of procedures could be implemented to
minimize or eliminate them.
i.e. allowing the parties to review and comment on the preliminary draft of the
Commission’s findings and conclusions. That may necessitate changes to the
Code, etc.

Ms. Wilkie asked if could be as simple as the Chairperson of the Commission
regulating the procedure for presentation of grievances. From my opinion, it
would seem that the City Attorney should object to those statements being made
on the public record, however he is defending the Mayor and not the accused
party, so it then becomes very difficult, and that party, as a third party,
does not have the opportunity to defend themselves in the public record.

Attorney Fischer stated another way to look at this, is should the City
Attorney really be representing the Mayor in this process, as opposed to the
Department Head? It seems to me that the Mayor is like a reviewing body.
However, the real complaint is with the department head. The Mayor has counsel.
What happens, is there is no one representing the department head. If the Mayor
has upheld the department head’s decision, should not the City Attorney, be
representing the department head? Who are the actual parties here? It’s not the
Mayor who is simply reviewing and making a decision that is being appealed. The
parties are the department head and the employee. Attorney Fischer stated the
Code does not state that the Mayor and employee are the parties in the
grievance.

Chairperson Kvasager stated when we get to that point, our focus is on the
Mayor’s decision, however, the grieving party is still focusing on the decision
or actions of the department head.

Mr. Bunce stated what we are talking about is due process. The employee and
Mayor are presenting their facts, however the other party, in this case, the
department head, does not get due process. There is something here that is
missing.

Attorney Fischer stated in most cases, the Commission should then remand the
grievance back to the Mayor with a directive that we have found there is merit
to the grievance, now you decide what to do with that. Then there would be
input by the department head, keeping in mind we want to promptly resolve the
grievance.

Mr. Bunce stated with regard to grievances, he sees it as simply, 1) what was
the adverse employment action; and 2) what remedy do you seek? With those two
items, the process flows. When it becomes convoluted, and you can’t figure out
what the remedy is, it becomes difficult.

Attorney Fischer stated there doesn’t have to be a hearing at all, the
Commission could direct the parties to submit their arguments in writing, the
Commission would render a decision and that would be the end of it. Chairperson
Kvasager stated that would be just as good a process as anything and we could
avoid all of this. Mr. Bunce stated it would minimize the burdens, and the
deliberation of the item, becomes the public meeting versus the appeal hearing.
Commissioner MacGregor stated seeing the parties are helpful to understand and
ask questions.

Ms. Wilkie asked if HR could put together initial ideas and options and then
reconvene, go over those items and forward them to Attorney Fischer for review.

Chairperson Kvasager stated it is the decision of the Chairperson that Attorney
Fischer and Human Resources come up with the ideas on rules, regulations, etc.
Attorney Fischer suggested in addition, department heads could come up with
perceived problems with the grievance process as well.

Attorney Fischer stated before we adjourn, discussion needs to be held on the
Master Police Officer matter. The Master Police Officer’s are not challenging
the adopted salary plan itself, but have raised issue with Attorney Fischer as
a party because City Council member, Doug Christensen is in the same law firm
as he. He stated he does not see his representation as a conflict, however it
is the Commission’s decision. The other issue is that the MPO’s have extended
the time frame to December 1st, 2003, so the Commission should set a hearing
date prior to that, to decide jurisdiction, etc. It would be a special meeting
on the issues based on submissions by the parties.

Ms. Wilkie suggested November 20, 2003 at 5:00PM for a special meeting on the
MPO grievance on whether or not the Commission has jurisdiction to consider,
deliberate and decide the appeal.

It was moved by Bredemeier and seconded by Nies to maintain Attorney Ron
Fischer as counsel for the Commission in these pending matters before the
Commission. All approve, motion carried.

ADJOURNMENT
It was moved by Nies and seconded by MacGregor to adjourn. All approve. The
Special Meeting of November 13, 2003 at approximately 5:45PM.


Respectfully Submitted,




Daryl Hovland
Assistant HR Director