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HomeMy WebLinkAboutCity Council Committees - Civil Services Commission - 08/04/1983 CIVIL SERVICE COMMISSION SPECIAL MEETING MINUTES, August 4, 1983 The special meeting of the Commission was called to order at8:00 a .m. by Chairman T. Richard Ried. In attendance were: Commissioner Donald Whitener, • Assistant City Attorney Heavey and David Williams , counsel for William Nirk . Firefighter Nutter was present for part of the hearing. Chairman Ried announced that the purpose of this meeting is to consider the Findings of Fact, Conclusions and Order of Dismissal in the matter of the appeal of William N. Nirk. He asked Mr. Williams for any comments. Mr. Williams responded that he had several suggestions for changes in the Findings . On page 2, paragraph 2.2. 1 , he suggested changing the first word, "knowing" , to 'believing " . On line 14 of 2.2. 1 he suggested delineating "the evidence room" and inserting "evidence room 1 " . Ms . Heavey said she had no objection to "evidence room 1 " change, but as to "knowing" , she said it was Sergeant Jilbert ' s state of mind and knowing that the evidence was no longer needed in the felony investigation as he had testified. The Com- mission concluded that the word, "knowing" referred to Sergeant Gilbert ' s knowledge about the evidence being no longer needed ; that the word, "knowing" is appropriate and did not approve the change. The Commission did approve removing the word, "the", before "evidence room" and inserting "1 " after "evidence room" on page 2, line 14. Mr. Williams requested the insertion of the word, "marked" , before the word, "destroyed" on page 3, between line 16 and 17. After reviewing the trans- cript, Ms . Heavey said she had no objection to the insertion. The Commission approved the insertion of the word, "marked", before the word, "destroyed" . On page 4, paragraph 2.3.3, Mr. Williams suggested adding at the end of the paragraph, "because he was assured by Sergeant Wiles and Mr. Mirk that • his testimony was sufficient" . Ms. Heavey stated that she had no objection to "he was assured by Sergeant Wiles and Mr. Mirk that his testimony was sufficient" but she said we have no testimony that Officer Nirk specifically did not discuss the possibility the evidence was in another room 'because ' he was assured and she thought it was drawing a conclusion on Mr. Nirk ' s thought process and it was not presented as evidence. Chairman suggested dropping the word, "because" , and a second sentence was suggested. Ms. Heavey added that instead of "he" , put "Officer Nirk" . Chairman asked if "would be" instead of "was" wouldn ' t be proper and both attorneys agreed. The sentence, "Officer Nirk was assurred by Sergeant Wiles and Mr. Mirk that his testimony would be sufficient. " was approved. The next amendment suggested by Mr. Williams was to paragraph 2.3.4, line 18, adding the word, "approximately", before the quotation. Ms . Heavey noted there was a slight deviation from the witnesses specifically as to what the response was , but these words were taken from Chief McQuery ' s letter of termination and that there were numerous times during the hearing that it was admitted that this was the statement that was made, although after the passage of time, people, including Officer Nirk, were not willing to swear that these were the exact words . Mr. Williams referred to Mr. Gorham ' s testimony on page 144 of the transcript using words such as "assumption" , "best recollection" "believe" , "would assume" , etc. , showing that an exact quotation cannot be made without qualifying it. After reviewing the transcript, Chairman Ried noted that the word, "approximately" , had been used in -the testimony during the hearing. Ms. Heavey was agreeable to the change. The Commission approved using the word, "approximately" , before the quotation , • "I did not bring them with me. I assume they are in the evidence room" . to agree with page 233 of the transcript. Mr. Williams also suggested an. additional sentence at the end of paragraph 2. 3.4. page 4, to read "The conviction was later vacated and the charge Civil Service Commission Special Meeting Minutes - Page 2 August 4, 1983 was dismissed" . Ms . Heavey had no objction . The Commission approved the addition of the sentence. • On page 5, line 3, Mr. Williams suggested striking the "the" before "evidence room" and inserting "evidence room 1 " . Ms . Heavey stated that the results of the investigation revealed the bullets were no longer in the evidence room and there is no testimony that evidence room 2 was ever the subject of conversation until subsequent to the termination. Mr.Williams argued that ther.e:is no testimony that the investigation resulted in a belief that the bullets no longer existed. Chairman Ried noted that the change was already made to line 14, page 2, and he felt that it should be left the way it is as we ' re referring only about the results of the investigation. Mr. Whitener said his belief when speaking of the evidence room, there wa's only one evidence room. The Commission concluded that each reference to the ".evidence room" referred to the same "evidence room" and the sentence is to stand; as the change would not add to the clarification. Mr. Williams stated he was having trouble with the words, "the statement" , in the same sentence . Chairman Ried suggested changing the word "the" to "that statment", to .which both counsels agreed. The Commission approved the change. Mr. Williams said he has difficulty separating what is Fact and what is Conclusion. Referring to paragraph 3. 1 . 1 ,under Conclusion, he said that is not a Conclusion, that is a Fact. Ms. Heavey responded there are con- flicting testimony being presented as to the existence of where the bullets are and was put in as a conclusion of the act of August 5th. The Commission agreed with Ms . Heavey because it does point out that this is a conclusion after investigations as a result of questions of Officer Nirk to Officer Smiththere were some indications that people did think the: bullets might exist, but were found not to exist, so therefore, it would be in the Con- clusion. The Commission concluded that it appears to be properly under Conclusion. In paragraph 3. 1 .5 Mr. Williams said he thought using the word, "misleading" is misleading, referring to his recollection of Chief McQuery' s letter using "false" . Upon reading the letter, Ms . Heavey explained that the specific incident was the "false testimony" given. She said that this is the Conclu- sion of the Commission and the Conclusion does not go to what the Chief was saying in his letter. She said that when Mr. Nirk made the statement that he assumed the bullets were in the evidence room, he knowingly gave misleading testimony under oath. It was not that the Chief thought he gave misleading testimony. Mr. Williams argued that Bill Nirk was dismissed because of an impression that Chief McQuery had that Nirk gave false testi - mony.and that was the reason He was fired. Ms . Heavey told the Commission that they are not reviewing the Chief ' s actions but are making' an independent review of the evidence to determine if the termination should be sustained. and it is sufficient' that they believe the testimony-was -misleading-:and that misleading testimony will hurt an officer ' s credibility. Mr. Williams argued that his recollection of what the Commission is supposed to do is to review whether the Chief acted properly in terminating Officer Nirk and subsequently to try him on different grounds is improper. .Ms . Heavey referred to the Commission ' s statutory duty under Civil Service 41 . 12.090 which is to confine their investigation to the determination as to whether or not such removal was'or was not made for political or religous reasons and whether or not it was made in good faith . Chairman Ried said he thought the word, "misleading" is entirely proper, that he gave false testimony, but it was misleading testimony. He noted that even Judge McLeod felt the bullets were Civil Service Commission Special Meeting Minutes - Page 3 August 4, 1983 upstairs in the evidence room. The Commission let the word, "misleading" , stand. Mr. Williams made the same objection for the record. • Mr. Williams then referred to paragraph 3.3 . 2, line 12: Officer Nirk was interviewed by an agent of Chief McQuery. . . " . He suggested using the word, "investigate" , instead of "interviewed" to go along with the Findings of Fact. Ms . Heavey said she supposed it ' s semantic , but she had no objection. Chairman Ried said he thought the word, "investigate" , is quite proper, that the terminology for any internal investigation is "investigage" , to which Mr. Whitener concurred. Mr. Ried said he wanted to make sure that it is indicated in the second part that Officer Nirk was given the opportu- nity to speak to the agent and the second part of the sentence does clarify that. The Commission approved the change to use the word, "investigate". Though he said he was not particulary strong on it, Mr. Williams suggested for paragraph 3. 3.3, adding "known to him prior to his September 10, 1975 meeting with Officer Nirk" because, he said, that right after Chief McQuery terminated Officer Nlrk , he learned additional facts. Ms. Heavey said the Commission is investigating the Chief ' s action up to and including the action of termination which occurred on September loth and all of the things that happened after that date helped to explain what happened on August 5th. She said the Chief ' s termination was done in good faith because he made it on due deliberation of the facts and circumstances known to him at the time he made the termination. The Commission decided to let the paragraph stand as it is. Chairman Ried said that it was also brought out in the Commission' s decision that those things that occurred after the incident and the crdibilityof Mr. Nirk which was brought out in the testimony during the hearing, and he wanted to comment on Mr Nirk ' s credibility. But he said that those things really had no direct bearing on the specific incident. He affirmed that the Commission is concerned with just the facts and circum- stances of the incident, not what occurred after the incident . The Commission left the paragraph stand. Mr. Williams had no other suggestion. Ms. Heavey had nothing further. Mr. Whitener moved to accept the Findings of Fact, Conclusions and Order of Dismissal as amended. Mr. Ried seconded. Motion carried. Meeting adjourned at 8:55 a.m. Respectfully submitted ,, Amy E. Kato Secretary and Chief Examiner Approved: T. Richard Ried Chairman