Committee Minutes

MINUTES
Grand Forks Civil Service Commission

SPECIAL MEETING
Thursday, November 20, 2003
5:00 PM
City Hall, A101

For consideration, deliberation and
Decision in the Appeal of the Master Police Officer’s

The Grand Forks Civil Service Commission was called to order at approximately
5:03PM by Chairperson Kvasager. Commissioners MacGregor, Nies, Johnson,
Kvasager and Bredemeier present. Attorney Ron Fischer present and is
representing the Civil Service Commission.

Police Department Master Police Officer employees presented a letter to the
Civil Service Commission regarding conflict of interest by Attorney Fischer for
the Commission’s decision. Chairperson Kvasager stated the Commission has
already rendered a decision that Attorney Fischer would remain counsel for the
Commission and no conflict of interest exists in this case.

Attorney Fischer stated last year the City Council approved a new pay plan and
policies and procedures that significantly differ from what was done in the
past. Now the City is using a pay for performance plan, which the Council
established ranges and midpoints, etc. which is incorporated into the adoption
of the pay plan. There were amendments to the Civil Service Code, 6-0701 (6) –
stating that articles shall not apply to any decision, determination or action
by the Civil Service Commission or the City Council. So what the City is
arguing, by Attorney Howard Swanson, in this case is that City Council accepts
the policy and procedures for the salary ranges, and that is something the
Commission cannot second guess, etc., with respect to grievances.

The position of the MPO employees in this case, is that a different code
section does apply, 6-0301 (2), Salary Policy with regard to subsection 2, says
the policy of the City of Grand Forks is to provide consistent and equitable
salary administration based on the position, requirements, and the employees
related experience, skills and performance. This is their case for the
Commission to have jurisdiction. Reduced to it’s essence, is those employees
promoted to the MPO position in 2002, were set at a salary of 100% of midpoint
which was done in 2002. This year, those MPO employees who promoted were paid
at about 88% of the midpoint based upon a 5% promotional increase in raises
that was approved in the 2003 budget. The MPO’s this year are saying, we are
being paid less than MPO’s promoted last year. This presents an unfair,
inequitable, inconsistent position. Basically, the real issue becomes, is the
City required to, once MPO’s are promoted one year and salaries are set, is the
City required to pay in subsequent years, promoted MPO’s the same rate.
Attorney Fischer stated he has not found anything that MPO’s have produced in
their writings, that mandates that be done. I think everyone would agree the
fact that the MPO’s promoted in 2003, were in fact paid within the range as
approved by the City Council in this case, it just wasn’t at the same rate as
was paid last year. But there is nothing that mandates that the City has to do
that this year.
Attorney Fischer stated he could certainly understand the position from which
they are coming from and perceive unfairness about this. Discussion held.

Commissioner Kvasager asked then, if the new ordinance allows the Commission to
intervene in that regard. That is the issue here. Is there any way the
Commission can get involved?

Attorney Fischer stated it is his view that because the pay was set consistent
with the policy that was established, that the Commission does not have
jurisdiction pursuant to that statute. It would only be if the pay was set
outside of the range or policy, would there be a basis for jurisdiction. I
believe there could be two scenarios. One is addressed in Howard’s letter to
the Commission. If there were a claim of abuse of discretion in setting a
salary, then the Commission could review that. That has not been alleged by the
MPO’s in this case. The other scenario where the Commission could be involved
would be if the salary were set outside the ranges. Then there would be a
violation of City policy and the Commission would have jurisdiction.

HR Director, Charles Bunce stated the City Council sets the budget and then the
administration sets the plan into place. The difference between 2002 and 2003,
is that in 2002 was the wage study which did away with all of the step
increases, set the ranges for all of the positions, and then effective 2003,
the plan and Council agreed to the ranges. An example would be that if state
law goes into effect August 1st, so if having an open container in public is
not against the law in 2002 or 2003, and it’s going to be in 2004, on July
31st, I could be drinking an open container in public and nothing happens, and
the next day be doing the very same thing and could get a ticket. It’s a matter
of establishing the base line, and as of January 1st, then a plan goes into
effect, which is administered. If it has to do with the budget, then that’s the
Council, if it has to do with disparate treatment, as an example, then the
Commission would have jurisdiction…It’s my opinion that the Commission is
qualified, nor should they say this person should be here versus there in
salary, etc.


Commissioner MacGregor asked Mr. Bunce to explain some of the issues raised.
Mr. Bunce explained that 2002 established the standard and the benchmarks and
the ranges. Mr. Bunce stated at the time, we looked at who was an MPO, not who
was going to be. At that time, to be fair and consistent with experience
levels, you had to have 5 years of experience to be an MPO and we were also
looking at 5 years of being in a job title and setting people at 100% of
midpoint according to experience in the job title. A person got no credit for
being in a position over 5 years and less credit for being in the position
under 5 years. It set the base line…disparate treatment would have to be, in my
opinion, outside of the salary range. MPO’s in 2002 were treated the same and
MPO’s in 2003 were treated the same. There was no distinction between being an
MPO December 31st and then being an MPO on January 1st. A line was drawn on
January 1st.

Attorney Fischer stated you can’t lock yourself in from prior years. Otherwise,
every MPO in subsequent years would have to be paid at 100% of midpoint. In
addition, what the City should address, and I haven’t looked at it yet, but
City Council as a result of the Salary Plan implemented this year (2003), not
last year (2002), capped any raises at 5%. Mr. Bunce stated the budget was
looked at as 5%. Attorney Fischer stated could you go above 5%. Is there
authority to give raises above 5%? Mr. Bunce stated, yes, the Mayor has
authority to approve up to the 120% of midpoint. Attorney Fischer stated it is
a discretionary issue.

Attorney Fischer stated if this is a discretionary decision, then perhaps the
Commission does have jurisdiction. If the grievance were based upon an abuse of
discretion, the Commission would have the authority. If the grievance is
predicated upon 6-0301 (2), as provided for by the City Council, is inequitable
and violates the policy, then the Commission would have jurisdiction in this
issue. Equitable doesn’t mean equal, it basically means fair. The City’s case
in 2003 is that we have been fair with all the MPO’s promoted this year. We’ve
provided them with all of the same level, grade and increase. Now if you
compare it with 2002, maybe it’s not so equitable. But the Civil Service
Commission in my opinion, doesn’t have jurisdiction to go to that issue because
there is no abuse of discretion argument being made here.
I just don’t see the facts rising to the level of a violation of policy. Absent
that, I just don’t think the Commission has jurisdiction in this case.

Discussion held.
It was moved by MacGregor and seconded by Kvasager based on information, that
the Civil Service Commission does not have jurisdiction in this issue. Attorney
Fischer will draw up a conclusion for signature, in this matter.

ADJOURNMENT
It was moved by Nies and seconded by MacGregor to adjourn the special meeting
of November 20th, 2003. The meeting was adjourned at approximately 6:00PM.

Respectfully Submitted,



Daryl Hovland
Assistant HR Director