Council Minutes

MINUTES/COMMITTEE OF THE WHOLE
Tuesday, February 9, 1999 - 12:00 Noon

Members present: Council Member Brooks, Lucke, Hamerlik, Bouley, Carpenter, Lunak, Beyer, Babinchak, Bakken, Hafner, Martinson - 11; absent: Council Members Polovitz, Glassheim, Klave - 3.

1. Consideration of issue of contract or civil service hiring of fire
chief.
Mayor Owens asked for discussion on this matter. Council Member Hamerlik stated that the reason he had requested committee of the whole is that previously at the time of the resignation and retirement of police chief they had such a meeting and were able to discuss it on a one-item agenda and since the fire chief has already retired, that they should be going forth post haste in trying to fill that, and need to get the initial items and preferences out in front and move as quickly as can. He stated in addition to that it would seem to him that a couple other things be in order to discuss with it, such as whether or not they have a national search or whether they want it.

Council Member Brooks complimented the fire department and staff on their unenviable task this past weekend in regards to the fire and had heard from one person there of their appreciation for the way the fire department handled and treated them.

Council Member Lunak asked for an explanation of procedures for hiring a fire chief. Dan Gordon, Human Resources, reported that traditionally what happens when there’s a job open it involves the Civil Service Commission, that one of their main functions is to establish criteria and procedures to determine fitness for duty and that can range from a written examination, oral interviews or to contract positions is an assessment center, and that is a series of five to ten different skills tests that gives us a multi-dimensional view of each candidate, that they have no less than three and no more than six people that they usually invite, and it’s probably their best search method for department heads and have been proved successful in past two department heads they’ve hired. He stated what he would request on behalf of procedures, that Civil Service Commission meets this Thursday and hopes that they would be involved extensively in this process.

Council Member Hamerlik stated that for new people and for others asked that they review procedure that they used for each of the two previous department heads, interviewing, and program they had.

Mr. Gordon stated they do a search, that they go to major newspapers, get on websites nation wide, individual professional periodicals, whether police chief or fire chief magazine, and they spend some money and get some good response back. He stated that with police chief they received of upwards of 50 applicants from all around the United States, that they have a screening committee that looks at no less than three and no more than six, and invite them to come to Grand
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Forks for a two-day process, starts with mayor’s interview panel, which is heaviest weighted category in the process and mayor tries to get a good cross section of city council people, professionals from the area and also commissioners in that process, and then spend the next day and half going through how they handle employee conflicts, give them some real life scenarios on how they would deal with that and usually four people called assessors that have a grading sheet grade each one of the exercises, one of the major things is on ethics, oral presentation as if trying to make a presentation to city council, check their writing abilities through written presentation, and do good job with it and what get at end result of this assessment center, esp. for those participating in it as interviewers or assessors, really have good feel at the end who is the top candidate. He stated that regardless if it’s civil service or contracted, the mayor is the appointing authority and has full discretion on whom is going to be appointed, so whatever process we use it is still the same way. He stated that the Commission usually establishes a register which is good for one year and has to be at least three names on it, and under a contracted position, the Commission does not have to establish a register, and if have six people who come to Grand Forks, could give all six names to the mayor, although with the assessment center the candidate must achieve 85% approval rating on an overall score of 1100 points to be forwarded to the mayor for consideration. He stated she has gone to their homes to visit with them towards the end of the process, and before they come to Grand Forks they do an extensive credit check, criminal history check and work references, and the police department helps with that.

There were a number of questions raised as to who establishes the pay rate, number of employees on civil service status and what other cities in North Dakota are doing. It was noted that the city council has the authority to establish any pay range, that there are about 400 employees under civil service in Grand Forks (perhaps have several part-time employees which are not classified, but it is a majority). Mr. Gordon stated that civil service is the most popular system, and each have unique things about their own system different from ours but have body similar to our commission, that establish hiring registers and pay procedures, but Fargo is larger than ours and at one time went through a mix of civil service department heads, contracted department heads, elected department heads and got to be such a mix, they eventually went to one and Commission determined civil service commission.

Mr. Gordon stated that they used outside agency for the police chief, started to for the city planner but not happy with the number of applicants and City took it over. Council Member Hamerlik stated that if they go with an outside agency the cost could be around $15,000, and yet there’s quite a bit of work to the interviewing process although they usually narrow it down to a few. He stated that he is
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assuming that a recommendation would go from this committee to the city council.

Council Member Lucke stated his question had to do with this case or others like it, when considering a new hire and might have somebody internally that looks really good and is already in the civil service system, and if we go contract, what are we asking them to give up and whether that would be important in that person’s decision as to whether they wanted to be a legitimate applicant, and asked for discussion on that.

Mr. Gordon stated it would be a big factor to internal candidates because of vesting of our pension, in order for them to take this contracted position, they would give up their civil service protection rights of their job and that is through discussion with our city attorney, and he also said there could be something written in the contract that at a point in time and agreeable by both parties that person could go back into a position already established in the department. Mr. Gordon stated it was important to allow internal candidates to be eligible for these position.

Council Member Babinchak moved that we hire the next fire chief under a contract position; Council Member Bakken seconded the motion.

Council Member Hafner stated that part of the reason that the council previously hired under contract was frustrations with problems we had with previous department heads or associated problems. He stated frustration he has with it is that the City loses some of its rights when we have civil service, and searching for solution in between where the employee or the department head still has the rights of protection from being arbitrarily fired because of some political issue but thinks that the employer needs to have more rights to discipline, to terminate based on good reasons; and doesn’t like either choice, doesn’t like civil service choice as he thinks there are problems with it, and definitely not the people on the civil service, but system creates problems, that the idea that people own their jobs doesn’t work well with him, and on the other hand doesn’t think it’s right that an employee is going to be under the political whims of an elected body. He stated that he will not support this job being civil service with the other two remaining as contract, and whatever decision make to make it all the same.

Council Member Babinchak stated there’s frustration on the employer’s part in some positions and should try to keep personalities of position that they’re going forward and if there needs to be some changes in civil service that this council wants to adopt along with the civil service commission, that should be done, but shouldn’t be forced into changing it now, that we need a new fire chief, and what needs to be understood and what they said before on the police chief
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and city planner is that this person can be contracted and can change them to civil service later, but can’t do the reverse, and if having trouble with this, that needs to be considered in decision, and if want employer or City to have more rights, should look at those sec-tions and change it first.

Council Member Hamerlik stated that what they’ve heard from their first contracted individual (police chief) saying that the three-year contract did have some concern on his part and thought that it should be at the will of the mayor and during that discussion could be a compromise, could give a guarantee of a three-year contract and yearly there after, but would seem if go contract, that we even specify before we start to hire whether it be a three-year contract or not, and pay determined for the first year.

C.T. Marhula, Civil Service Commission, stated he sees this as two separate choices, one is to determine whether it’s going to be under civil service or under contract, and if determine it’s under contract, then there’s a second choice, is that then does it stay under the mayor or if it’s turned over to the civil service to have full responsibility for the hiring, and with contract can go either way; there is nothing wrong with civil service and 98% of rights employees have will have no matter how you hire them, given by the Supreme Court and can abolish the civil service code and commission and employees would still have almost all of their rights, and doesn’t come from the Code but comes from them. He stated he would urge committee to consider is that they had an election two years ago and mayor had almost 80% of the votes, and her position was well known that she did support the civil service commission in the hiring and today, and that should have some weight.

Council Member Brooks stated he has some concerns as to the rights of the employees and those rights not being adhered to or misused but can sight instances in good systems where the employee’s rights were not upheld and employees not treated fairly, doesn’t mean the fact that we have that system that it will work well and may work better than others in terms of preserving and honoring the employees’ rights, and if have bad employee in almost any system, can deal with that. He stated that he thinks they need t go contract because at this level of management.

Arvin Kvasager stated he’s been on civil service for some 20 years, and have had only two people contract hired, haven’t had any major problems but had one department head that was replaced and have had very good success with civil service, and that there are certain inalienable rights that the employee has regardless whether it’s civil service or not, the only reason have civil service is to have some orderly procedure in how you administer the Code. He stated he per-sonally prefers civil service, and has seen some excellent employees
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hired for the City and worked for the City for many years through civil service, and would hate to see the program disrupted, and
hope they consider that.

Council Member Lucke stated that if civil service works for the majority, doesn’t know why it doesn’t work for the department heads, one of the biggest buyouts that took to get a public employee out of this area was a contract employee, airport official; and can have a contract that doesn’t work just as well as having civil service that may in your opinion not work as far as performance is concerned.

Jim Johnson, Civil Service Commission, stated that they have handled a couple hearings on employees that were quite lengthy with hearing and testimony, and showed him civil service system works. He stated he thinks it worked quire well but would draw to their attention that one issue was under a director that was on contract and ended surfacing and rather than going through civil service channels it ended up surfacing through the mayor’s office, and satisfied with way it was handled; however, sometimes civil service can handle or react to director’s actions, and maybe problem would have been handled through civil service before it goes to a hearing stage. He stated he’s giving support that the civil service system works and is impressed with way hearings went, etc. but sees weakness on the top end and encouraged when say when hire someone and put on a year or two-year contract and then say putting on civil service, and thinks doing a favor when doing that because every year have several people on contract and every year have to deal with contracts, etc. He stated he appreciated intentions but wish they would come to conclusion and confidence that civil service would perform for you as far as hiring individual and evaluating that individual, and if not doing job, confident civil service take care of any problems.

Mayor Owens stated she has been with the City for 36 years and lived with civil service system for those years, that there were problems with police chiefs and that’s where civil service started to erode and whether under contract or under civil service, was told that you have a property right to your job, that she values city council and their judgment but really also values civil service. She stated they have had several people that have gone through hearings and civil service and hasn’t always come out on the same end but thinks it’s a fair process, and believes that when it comes to department heads, it becomes much more political when under contract.

She stated that raises became a problem, do need to compensate a contracted employee, a significant amount more than you do others, and if there is a contract, is that it should be spelled out what compensation these people have, that she still favors civil service, that this is something they have tried and it goes back to civil service, and even if it is a contract if have people within the
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department that are qualified, they should be allowed to apply if they so choose. She stated that with hiring of the police chief they had an outside committee and did have some problems there, that these are good agencies, but had people problems and not the evaluating system. She stated that the next time around with city planner, they had problems because they had no candidates that she felt comfortable putting in place so then had to evaluate sby their own people. She stated that the background checks aren’t public information but have to be responsible to the community, but still believes the civil service system is a good system and have had good people working towards making this a fair system, and respects council’s wishes to try something else but still firm supporter of civil service.

Council Member Carpenter stated he’s been big advocate of contract as anybody in the past and still going to support this position as a contract position, that what they’ve undertaken has been an experiment and to date has been successful, that if it doesn’t work out or if run into some problems with contract, can go to civil service, cannot go back the other way. He stated that he didn’t think that the issue of contract vs. civil service was an issue in the mayor’s race in 1996 and so the result of that shouldn’t have anything to do with this, and is unrelated issue. He stated he didn’t think they would have compensated any less to the two people they hired under contract if they had been in civil service, the salaries and compensation levels would have been equivalent and doesn’t think a factual statement based with evidence that we paid more because they are under contract. He stated he thought they made a mistake in not addressing raises in the contract and that became an issue, that can address raises in a contract and what will feature compensation each year, can be addressed and doesn’t have to be an issue. He stated that he has one concern that he hopes before Tuesday night get an answer, that if they did hire a current City employee, that they would have to go out of the defined benefit pension plan, that would be a significant cost. He stated that if only thing they lose is the benefits of some civil service protections, not as concerned about that, but to have to go outside the pension plan, which he doesn’t think they would have to do because still a City employee, just under contract vs. civil service, and if can’t that is an issue that they will need to discuss further.

Upon call for the question by Council Member Hamerlik, and upon roll call vote, the following voted “aye”: Council Members Brooks, Hamerlik, Bouley, Carpenter, Beyer, Babinchak, Bakken, Hafner - 8;
voting “nay”: Council Members Lucke, Lunak, Martinson - 3. Mayor Owens declared the motion carried.

Council Member Hamerlik moved that we advertise and handle the recruitment of the fire chief internally with financial support, and that consideration be given for a three-year contract for the first three years. The motion was seconded by Council Member Beyer.
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Council Member Carpenter stated that they need to address the issue that Mr. Marhula brought up as to the involvement of Civil Service and they should be involved in it, not to manager the process and present the names to the mayor.

Council Member Martinson questioned whether any further items could be considered as this was a one item agenda, and wouldn’t they have to wait for council to act first before discussing contract provisions; Mayor Owens stated that provision for item only agenda was only for a special city council meeting. Council Member Hamerlik stated this could be a part of the contract but could do that Monday if it’s a big thing. Council Member Beyer stated they could withdraw their motion and do this on the council floor.

C.T. Marhula, Civil Service Commission, stated that the question is not whether they are included or not, doesn’t revert to the control of Civil Service Commission to bring forward 4, 5 or 6, and in the past have done that, but is it under the control of the mayor or under control of civil service commission, and that’s issue that council has to decide. Council Member Beyer stated they are asking that the assessment centers go forward and civil service commission would put the last names together to take to the mayor. Mr. Marhula stated that no, they would be in control of the process and everything done the same except the mayor couldn’t tell them to go home because they would be in control of it, but if put under the control of the mayor, then she can include them if she wants to or not, or give them as much weight as they want, but council does have to say either the mayor’s in control or civil service commission is. Mr. Marhula stated they would do the hiring process as they see fit and include who they see fit, go through assessment process and submit maybe 4 or 5 names to the mayor, and mayor has final decision. Mr. Marhula stated they could follow the civil service guidelines but wouldn’t be bound by them because it’s no longer a civil service procedure.

Council Member Hafner stated he didn’t have any trouble with civil service being involved and they do it on a normal basis and mayor ultimately has the choice at the end. He stated he was involved in police chief hiring and was on committee, interesting process but not sure that those who were actually doing it enough to be that qualified to do it, and can support civil service doing it because they have more experience doing that.

Council Member Hamerlik stated it was rather minor whether he withdraws motion or not, it’s a matter whether or not they want to discuss it today or discuss under new business next Tuesday, and at any time if they put it under new business, then anybody can rise that it’s controversial and postponed for another two weeks, but if they prefer that they don’t want to make a decision today, he will yield at that point and withdraw it, but that it has merit and should proceed,
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that he is concerned that they have to move forward.

Council Member Martinson stated that if postponing it until Tuesday night and giving somebody the opportunity to address it and to speak, would hope that council would afford that to the citizens of the community that might have some input or civil service, etc.

Council Member Hafner stated that whatever they do with this position that they voted to go contract, they should get the concerns of all the people involved in it so that they don’t have the same kind of negative issues that they had with the last problem. He stated they should include language that the contract’s renewal after the first three years so that there isn’t a sense that in the first three years have to go through the process again and that was one of the issues. He stated there were some pay issues and should be brought forward; should go through some committee even if it causes a delay.

Council Members Hamerlik and Beyer withdrew their motion.

ADJOURN

It was moved by Council Members Lunak and Beyer to adjourn; meeting adjourned at 1:00 p.m.

Alice Fontaine
City Clerk

Dated: 2/11/99