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HomeMy WebLinkAboutCity Council Committees - Civil Services Commission - 06/02/1983 KENT CIVIL SERVICE COMMISSION SPECIAL MEETING June 2, 1983 The special meeting of the Commission was called to order by Chairman T. • Richard Ried at 2:00 p.m. in the Council Chambers. The purpose of this meet— ing was to announce the decision in the matter of the appeal of William N. Nirk in regard to his discharge from the Kent Police Department. In attendance were: Commissioner Donald D. Whitener, Assistant City Attorney Barbara Heavey, David P. Williams, counsel for Nirk, and Mr. and Mrs. Nirk. About 15 persons were also present. Chairman Ried read the Commission's decision (attachment). Neither counsel had any question of the Commission. Special meeting was adjourned at 2:20 p.m. Respectfully submitted, Amy E. Kato Secretary and Chief Examiner Approved: • T. Richard Ried Chairman • This is the decision of the Kent Civil Service Commission as a result • of the hearing conducted May 24 and 25, 1983 in the matter of the appeal of William Nirk from his dismissal from the Kent Police Department effective September 15, 1975. FACTS: Rule XV of the City of Kent Civil Service Commission Rules and Regulations in effect in August, 1975 read in part as follows: RULE XV SUSPENSIONS, DEMOTION, DISCHARGES AND APPEALS Section 2. "DEMOTION AND DISCHARGE": The chief of the department may demote or discharge a permanent employee for just cause. In all cases, written reason for the demotion or discharge shall be furnished the employee and the Civil Service Commission at least five (5) days prior to the effective day of the demotion or dismissal. Section 3. "APPEAL PROCEDURE": Within ten (10) days after the effective date of a suspension, demotion or discharge, the employee may file written request for a hearing before the Commission. The Commission, within fifteen (15) days after receiving the request, shall hold, or provide for holding a hearing at which the employee and the chief shall have the privilege to be heard either personally • or through counsel. All hearings shall be informal and shall be conducted with the object of obtaining- the facts in the matter, and of arriving at a just and equitable conclusion as to whether or not the suspension, demotion or discharge was made for religious or political reasons, or for good cause. . Within ten (10) days of the conclusion of the hearing, the Commission shall render its decision. If the decision orders a modification of the suspension, demotion or discharge, it shall be accompanied by a supporting statement showing wherein the Commission believes religious or political prejudice was practiced, poor faith exemplified or cause was lacking. Section 4. "GROUNDS FOR DISCHARGE, SUSPENSION AND DEMOTION": The following are declared to be cause for .discharge, suspension or demotion from:the classified service. (1) Incompetency, inefficiency or inattention to or dereliction of duty. (2) Dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public, or a fellow employee, or any other act of omission or commission tending to injure the public service; or any other willful failure on the part of the employee to properly conduct himself; or any willful violation of the provisions of the Civil Service RCW or-.the Rules .and Regulations. It is this, then, that dictated the manner in which the hearing was • conducted and further set forth our final purpose in conducting the hearing, i.e. to obtain the facts of the matter and arrive at a just -1- and equitable conclusion as to whether or not the discharge was for good cause. These rules are in concert with Title 41 , RCW Section • 41.12.090, Procedure for Removal , Suspension, Demotion or Discharge - Investi.gation - Hearing - Appeal. As regards Rule XV, Section 2, relating that written reason for the discharge must be furnished the employee and the Commission at least five days prior to the effective date, we find that based on the testi- mony of Mr.. Nirk and that of Chief McQuery that this indeed was done and within the time constraints. Although not a specific issue in this hearing, the above fact must be noted in order to ascertain that all procedures were properly complied with. Whether or not Mr. Nirk filed a written request for a hearing before the Commission within ten (10) days after the effective date of his discharge becomes a moot point since the Superior Court has remanded the case to the Civil Service Commission for a new hearing. As to the determination as to whether or not Mr. Nirk's discharge was for good cause, the Commission considered all the testimony given by sworn witnesses during this hearing. Mr. Nirk's testimony in Court on August 5, 1975 was in direct conflict with what he was told by Officer Smith and with what Mr. Nirk told the City Attorney Don Mirk approximately 30 minutes prior to his testi- mony in Court. Mr. Nirk testified during this appeal hearing that he was aware of the procedure for handling evidence. Officer. Smith told Mr. Nirk that the bullets had been destroyed. Having then, knowledge of the evidence handling procedure and having been told the bullets had been destroyed, to then testify under oath something to the contrary is an act of omission or commission tending to injure the public service. As brought out in testimony during this hearing, in many cases, a single police officer may be the only evidence or testimony to be presented for the city, county, state, etc. As further brought out during the hearing, misleading testimony by an officer can seriously jeopardize or destroy credibility. • Mr. Nirk's attorney stated that he (Mr. Nirk) was fired for telling exactly what was true -- that the bullets were actually in the Evidence -2- Room. However, at the time of the August 5, 1975 trial, Mr. Nirk • did not know they physically existed. Yet he testified he assumed they were in the Evidence Room. If he knew they existed, the question arises as to why, just 30 minutes before the trial, he told Mr. Don Mirk they were destroyed. As to the proper handling of the dismissal in 1975, Mr. Nirk's attorney stated Mr. Nirk was not given the common decency to be allowed to explain what happened. He was allowed to explain to Captain Grant during the latter's investigation. Mr. Nirk's attorney also stated Chief McQuery had only Don Mirk's letter in front of him when he was deciding the action to be taken. However, the Chief also had in front of him, or had reviewed, Captain Grant's investigative report. CONCLUSION: These, then, being the facts brought before this Commission at this hearing lead the Commission to the conclusion that William Nirk did knowingly give misleading testimony under oath during the August 5, 1975 trial and that did, indeed, constitute an act of omission or commission tending to injure the public service. It is the further conclusion of this Commission that Chief Dave McQuery acted pursuant to the Rules and Regulations of the Civil Service Com- mission, that he did have good cause to discharge William Nirk and the discharge is affirmed. The conclusion arrived at by this Commission is in no way intended to impune the veracity or character of Mr. Nirk. It is a finding of fact based on the testimony surrounding the circumstances of this case during the time period in 1975 previously mentioned. The Commission.does, in fact, make note of the testimony offered in behalf of Mr. Nirk by character witnesses. It must, however, concern itself with the facts that occurred in 1975 as presented during this hearing. Ms. Heavey, please prepare proposed findings of fact and conclusions of law and judgment. They should be delivered to the Commission secre- tary on or before Thursday, July 7, 1983. You may make additional findings and conclusions as could reasonably be concluded from the evidence. -3- We will consider them and enter them into the record at our regular July Civil Service Commission meeting on Thursday, July 21, 1983, at 8:00 a.m. in the Kent Council Chambers. This Commission, by making certain findings, did so only in order to help the parties understand the Commission's reasoning, and they were not meant to be exclusive findings and conclusions. Does either counsel have any questions of the Commission? DATED this 2nd day of June, 1983. T. RICHARD RIED, CHAIRMAN KENT CIVIL SERVICE COMMISSION o� , DONALD D. WHITENER, MEMBER KENT CIVIL SERVICE COMMISSION • -4- KENT CIVIL SERVICE COMMISSION MEETING MINUTES June 16, 1983 The regular meeting of the Civil Service Commission was called to order. at 8:00 a.m. by Chairman T. Richard Ried. In attendance were: Commission members, Joseph Street and Donald Whitener. Also present: City Attorney DiJulio, Chief Angelo, Administrative Assistant Webby; Assistant Fire Chief LaBore and Officer Charles E. Miller. Mr. Street moved, Mr. Whitener seconded, to approve the minutes of the May 19, 1983 meeting. Motion carried. It was moved by Mr.. Whitener, seconded by Mr. Ried, to approve the minutes of the special meeting on June 2, 1983 called for the purpose of announcing the decision on the William N. Nirk hearing. Motion carried. Chairman Ried noted that Commissioner Street had disqualified himself from involvement in this hearing. City Attorney DiJulio reported that he had prepared a memorandum concerning appearance of fairness doctrine. He said approximately 3-4 months ago the Supreme Court appeared to be moving away from the doctrine, but in a recent decision, the Court reversed that trend and found that the appearance of fairness doctrine applied. He said the Commission is subject to stricter standards in the fairness doctrine when hearing quasi judicial. matters, but when holding hearings outside of appeal hearings, that doctrine may be applied. He will provide copies of the doctrine to the Commission for distribution. Administrative Assistant Webby reported that the second annual. Civil Service workshop is scheduled to be held sometime in September, the date to be announced later. Mr. DiJulio commented that he was one of the guest speakers last year and there has been increasing interest in the efficient operation • of the Civil Service Commission in the state. Chief Angelo reported he has requested a temporary assistant chief for a three to four month period to be appointed later today. He has based his request on the fact the department is dedicating a'lot of their resources to the Master Plan. He also reported that Jeffrey Barsness graduated from the fire academy and was among the top three. Chief Angelo said that most of the recruits are going through EMT certification and should be completed by the end of the month. Assistant Chief LaBore requested the extension of the Firefighter Eligibility List for six months. Mr. Street moved, Mr. Whitener seconded, to extend the Firefighter Eligibility List for six months to December 20, 1983. Motion carried. The matter of the request from Officer. Charles E. Miller which was held over from last month pending input from the Fire Department was next on the agenda. Chief Angelo said he had no problem with a year-long promotional eligibility list with the option of a six-month extension. He said any time beyond that would be getting into a number of eligible people with experience level. Chairman asked if his department and the Police Department were in concert, to which Chief Angelo responded affirmatively. Mr. Street moved to change Rule XI, Section 2, to read that the promotional eligibility listtfor both departments be in effect for one year with the provision to extend it for six months. Mr. Whitener seconded. Motion carried. This proposal would be: effective one month from this date. • The next meeting date is Thursday, July 21, 1983, at 8:00 a.m. in the Council Chambers. Kent Civil Service Commission Meeting Minutes - Page 2 June 16, 1983 Meeting adjourned at 8:25 a.m. • Respectfully submitted, Amy E. Kato Secrtary and Chief Examiner T. Richard Ried Chairman •