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HomeMy WebLinkAboutCity Council Committees - Civil Services Commission - 01/18/1990 (5) 9 3 4 BEFORE THE CIVIL SERVICE COMMISSION 5 FOR THE CITY OF KENT 6 CAPT. DENNIS BYERLY , ) NO. 8 Appellant, ) ) 9 VS. ) MOTION FOR CONTINUANCE ) 10 KENT POLICE DEPARTMENT, ) Respondent ) ) 12 COMES NOW the Kent Police Department by and through its • 15 attorney, William A. Coats of Kane, Vandeberg, Hartinger & 14 Walker, and request the Commission to continue this case to 15 a date convenient to all of the parties so that the parties 16 can adequately prepare their testimony and legal arguments . 17 DATED this /d' day of January, 1990 . 18 KANE, VANDEBERG, HAR.TINGER 19 &�WALLKKER 20 Bv: s%ll WILLIAM A. COATS 21 Of Attorneys for Kent Police 22 Department 25 24 Kxw- VANINtRGRG, HAPTINGF]Z QQ WALKI`.R A LAW PARTNERSHIP INCLUDING PROFESSIONAL SERVICE CORPORATIONS MOTION OF CONTINUANCE - 1 FIRST INTERSTATE PLAZA,SUITE 1900 2771 .24509 - WAC 31/9 3 TACOMA.WASHINGTON 98402-4391 (206)383 379 1 TELECOPIER(206)383 6377 M 1 2 13 4 BEFORE THE CIVIL SERVICE COMMISSION 5 FOR THE CITY OF KENT (i 7 CAPT. DENNIS BYERLY , ) NO. 8 Appellant , ) 9 Vs . ) AFFIDAVIT OF WILLIAM A. .COATS 10 KENT POLICE DEPARTMENT, ) 11 Respondent ) 12 STATE OF WASHINGTON ) �, ) ss. COUNTY OF PIERCE ) 14 WILLIAM A. COATS, being first duly sworn on oath, 15 deposes and says: 16 1 . I was retained by the Kent Police Department to 17 represent its position concerning a complaint filed by Capt. 18 Dennis Byerly before the Kent Civil Service Commission. The 19 following statements are made in support of the department' s 20 request for a continuance. 21 2 . The issue in this case concerns statements made at 22 a Public Safety Meeting. There were apparently at least 17 25 witnesses to these statements . I have requested the L4 department to obtain statements from individuals so that we Knnr, VANUP.I3FRG, FIANTIN61-M QQ WALKER A LAW PARTNERSHIP INCLUDING PROFESSIONAL SERVICE CORPORATIONS AFFIDAVIT OF FIRST INTERSTATE PLAZA.SUITE I SOO WILLIAM A. COATS - 1 TACOMA.WASHINGTON 984024391 2771 . 24509 - WAC31/94 (206)3833191 TELECOPIER 1206I 383-6377 I can determine their individual recollections concerning that 3 meeting. By allowing me to review those statements prior to 4 a hearing, the evidence and testimony in this' proceding may 5 be substantially reduced and the Commission ' s time 6conserved. ' 7 3 . While it is difficult at this time to estimate the 8 total lenghth of a hearing, we estimate that it would take 9 at least two days of testimony and may take substantially 10 more time . 11 12 WILLIAM A. COATS • 15 SUBSCRIBED AND SWORN TO before me this 11L day of 14 January, 1990 . nAjENN/S 15 1C-3 :\UN•EXA, a� 4'�()SAR), * NOTARY PUBLIC i nd for the State 10 ` •� 6 WV6 of Washington, ysiding at 17 �* �s p�B�,� ggip My commission expires : G .•.Rp of v 18 d�r4r..OF WnSa10 '' 19 20 21 22 25 24 KAW, VANDIA ,RG Hnirnucr:� cC W,v,iu.0 A LAW PARTNERSHIP INCLUDING PROFESSIONAL SERVICE CORPORATIONS AFFIDAVIT OF FIRST INTERSTATE PLAZA,SUITE 19W WILLIAM A. COATS - 2 TACOMA.WASHINGTON 96402-4391 2771 . 24509 - WAC31/94 1206)383 3791 TELECOPIER(206)383-6377 2 3 4 BEFORE THE CIVIL SERVICE COMMISSION 5 FOR THE CITY OF KENT 6 7 CAPT. DENNIS RYERLY , ) NO. 8 Appellant , ) 9 vs . ) MEMORANDUM OF KENT POLICE DEPARTMENT 10 KENT POLICE DEPARTMENT, ) II Respondent ) 12 I . INTRODUCTION • 113 Capt. Dennis Byerly has filed a "Complaint" with the 14 Civil Service Commission apparently requesting a hearing on 15 whether certain disciplinary action taken against him was 16 for just cause and whether he was provided due process . 17 This memorandum is filed on behalf of Chief. Frederiksen and 18 the Kent Police Department requesting that this "Complaint" 19 be dismissed, and in the alternative that this matter be 20 continued to a date convenient to the parties , and that the 21 Civil Service Commission consider appointing an independent 22 hearing officer to prepare a record and a proposed decision 25 for their consideration. 24 • KnNe. VANDfiBKRG. HARTIN61"k Q %V;\i_rcr.iz A LAW PARTNERSHIP INCLUDING (� MpRA D�TN pF KFN PROFESSIONAL SERVICE CORPORATIONS P I ICENDEPrARTMEJWT- 1 FIRST INTERSTATE PLAZA.SUITE 1900 TACOMA.WASHINGTON 98402 4391 2771 .24509 — WAC31/92 (206)383 3791 TELECOPIER(206)363 6377 This matter concerns statements made by Capt. Byerly at 2 3 a Public Safety Meeting on September 14 , 1989 . Chief 4 Frederiksen alleges that Capt. Byerly stated that he 5 personally gave a copy of a report concerning the Drinking G Driver Task Force to Capt. Rees . Capt. Rees denied 7 receiving the report from Capt. Byerly, and subsequently 8 Capt. Byerly denied ever making this statement. 9 After investigating the incident, Chief Frederiksen 10 reprimanded Capt. Byerly stating: �� "You made an untrue statement at the 9-14-89 meeting of the Public Safety Meeting. That 12 statement was, ' I personally gave a copy of the report to Capt. Rees during the week that he was acting chief. I do not understand why Capt. Rees • 15 had not given a copy of the report . to Chief 14 Frederiksen. "' 15 Capt. Byerly then appealed the Chief' s determination 10 pursuant to internal department policies and now has filed a 17 Complaint with the Civil Service Commission. 18 II . ARGUMENT 10 A. The Civil Service Commission Does Not Have Jurisdiction To Hear This Case. 20 The Kent Civil Service Commission is governed by its 21 own civil service rules, and in particular Rule XV which 22 concerns "Suspensions, Demotions, Discharges and Appeals . " 23 This rule provides in pertinent part as follows: 24 "Section 1 . "SUSPENSIONS" : The Chief of the department, for disciplinary purposes , may suspend for just cause a permanent employee , without pay, Kn,ve., VvNm, A(. . HARTINW-R QQ W1LKISR A LAW PARTNERSHIP INCLUDING PROFESSIONAL SERVICE CORPORATIONS MEMORANDUM OF KENT FIRST INTERSTATE PLAZA.SUITE 1SOO POLICE DEPARTMENT - 2 TACOMA,WASHINGTON 984024391 2771 .24509 - WAC31/92 (206)3633791 TELECOPIER(206)383 6377 I for period not to exceed thirty (30) days in any 2 twelve ( 12) month period. 3 Section 2 . "DEMOTION AND DISCHARGE" : The Chief of the department may demote or discharge for just 4 cause a permanent employee. S (' Section 4. "APPEAL PROCEDURE" : Within ten (10 ) days after the effective date of suspension, 7 demotion or discharge , the employee may file written request for a hearing before the H Commission. The Commission, within fifteen (15 ) I 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 III be heard either personally or through counsel . I II 12 The Commission' s jurisdiction under the above-quoted I13 rule is to hear cases to see if "Just cause" exists for the 14 "suspension, demotion or discharge" of a , civil service lfi employee. The definition section of the rule defines what a 16 suspension, demotion and discharge is . Quite clearly the 17 actions taken concerning Capt. Byerly do not fit these 18 definitions. Capt. Byerly received only a written IJ reprimand. 20 Rather than as appeal under Civil Service Rule XV, ZI Capt. Byerly has filed a "Complaint" under. Rule IV of the 22 Kent Civil Service Commission governing "hearings, ZJ investigations and complaints . " Capt. Byerly is apparently 24 requesting a hearing for the Commission to determine whether appropriate procedures were followed and "just cause" exists KANP:. VANM-.w RG. HARTIN6ER cC VVALKI:R A LAW PARTNERSHIP INCLUDING PROFESSIONAL SERVICE CORPORATIONS MEMORANDUM OF KENT FIRST INTERSTATE PLAZA,SUITE 1900 POLICE DEPARTMENT - 3 TACOMA.WASHINGTON 984024391 2771 . 24509 - WAC31/92 (206)383 3791 TELECOPIER 12061 383 6377 for the reprimand he received. Under Capt. Byerly's <3 readings of the rules , apparently the most trivial 4 disciplinary action, whether it be an oral statement, 5 written reprimand or office directive, can be appealed to 6 the Civil Service Commission for them to review a department 7 chief' s determination. Such a reading of Kent Civil Service 8 Rule XV would extend the Civil Service Commission' s 9 jurisdiction beyond its proper scope and undermind the III effectiveness of the management of each of the departments 11 governed by civil service . 12 Rule XV carefully delineates that suspensions, • 15 demotions and discharges may only be carried out for "just 14 cause. " In addition, the rule sets forth careful procedures 15 that must proceed such actions , describes the appeal 16 procedure, and in Section 5 sets out the grounds for 17 discharges, suspensions , and demotions . Notably, the rule 18 does not cover lesser forms of disciplinary actions such as 19 reprimands. Absent an express just cause provision and 20 procedures governing lesser forms of corrective actions, a `LI proper reading of the rule indicates that it is left to the 22 head of the department to determine whether or not such 23 minor disciplinary actions like reprimands are appropriate . 24 Any other reading of the rules renders Civil Service Rule XV meaningless as all actions would be covered under Civil KAN[ VAN1)1zBi izc. HAwi,incca cQ WALKER A LAW PARTNERSHIP INCLUDING PROFESSIONAL SERVICE CORPORATIONS MEMORANDUM OF KENT FIRST INTERSTATE PLAZA,SUITE 1900 POLICE DEPARTMENT - 4 TACOMA.WASHINGTON 964024391 2771 .24509 - WAC31/92 (2061383-3791 TELECOPIER(266)383 6377 I 2 Service Rule IV. �i This conclusion is reinforced by Section 2 of Rule IV 4 which provides: 5 "Section 2 . "HEARINGS AND INVESTIGATIONS" : Hearings and investigations which the Commission is authorized to conduct are to be carried out in 6 conformity to RCW 41 . 08 . 000 or RCW 41 . 12 . 000. " 7 Chapter 41 . 12 . RCW governs Police Civil Service 8 procedings while Chapter. 41 . 08 RCW governs Fire Civil 9 Service procedings. RCW 41 . 12 .090 sets forththe procedures III for appeals under the statute and clearly states that 11 appeals are provided only for suspensions, demotions or 12 discharges. The statute g provides in pertinent part: • 13 "Any person so removed, suspended, demoted or 14 discharged may within ten (10) days from the time of his removal, suspension, demotion or discharge, IS file with the Commission a written demand for an investigation, whereupon the Commission shall 16 conduct such investigation. " 17 Reading the Kent Civil Service Rules as a whole, a 18 civil service employee has the right to appeal to the 19 Commission only a suspension, demotion or discharge. Lesser 20 forms of corrective action are vested in the department head 21 and his subordinate administrative staff. 22 B. This Matter Should Be Continued To A Date Convenient To 23 All Of The Parties. 24 The Chief of the department has directed the internal. affairs officer to take statements from individuals present • KANIC. Vwura;razG, Fi;vrrrNGF'P -) Wni.rteu A LAW PARTNERSHIP INCLUDING PROFESSIONAL SERVICE CORPORATIONS MEMORANDUM OF KENT FIRST INTERSTATE PLAZA.SUITE 1 EGO POLICE DEPARTMENT - 5 TACOMA,WASHINGTON 964024391 2771 .24509 — WAC31 /92 (206)363-3791 TELECOPIER(206)363.6377 I 2 at the Public Safety Meeting on September 14 , 1989 . On b January 17 , 1990, I was advised by Detective Miller that he 4 has obtained statements from five of the individuals and 5that he has twelve more people to interview. He estimates 6 with his current workload it will take him approximately 7 three weeks to complete the statements . Obtaining the 8statements and reviewing them would allow counsel to 9 organize testimony and would greatly reduce the time of the 111 hearing. However, even with this preparation we would II anticipate that the hearing would last a minimum of two days IZ and possibly as many as five. 13 We respectfully request the Civil Service Commission to • 14 continue this case until we can have adequate preparation 1.5 and be prepared to try this case in an efficient manner. 16 C. The Appointment Of An Independent Hearing Officer. 17 We recognize that holding a lengthy evidentry hearing lfl is difficult for the Civil Service Commission as whole because of their outside schedules. To assist the 19 20 Commission, Chief. Frederiksen and the Kent Police Department 21 are willing to consent to an independent hearing officer who 22 would hear the evidence, prepare a record and make a 25 proposed decision to the Civil Service Commission for its 24 consideration. This procedure may allow the Commission to proceed more efficiently while providing a fair hearing to KANF. ViANUI'UNG. HAPTINGru WALKP,R A LAW PARTNERSHIP INCLUDING PROFESSIONAL SERVICE CORPORATIONS MEMORANDUM OF KENT FIRST INTERSTATE PLAZA.SUITE 1900 POLICE DEPARTMENT - 6 TACOMA,WASHINGTON 984024391 2771 .24509 - WAC31/92 (206)383 3791 TELECOPIER(206)383 6377 all the parties . 3 This matter is complicated by the fact that Sandra 4 Driscoll , attorney for the Civil Service Commission, is a 5 potential witness in this case and may be required to disqualify herself. The Commission may want to consider the fi 7 appointment of a hearing officer who can advise them of the 8 decision as well as advise them of considering the legal 9 issues inherent in this matter. 10 Respectfully submitted this 19-c.,e day of Januarv, 1990 . II KANE, VANDEBER.G, HARTINGER & WALKER 12 15 By. WI7�AM A. COATS 14 Of Attorneys for Kent Police 15 Department 16 17 18 19 20 21 22 23 24 KA1NF, VANDI113ERG. HARTINGEP cQ WALKI`_R A LAW PARTNERSHIP INCLUDING PROFESSIONAL SERVICE CORPORATIONS MEMORANDUM OF KENT FIRST INTERSTATE PLAZA,SUITE 1900 POLICE DEPARTMENT - 7 TACOMA.WASHINGTON 98402-4391 2771 . 24509 - WAC31/92 (206)383 3791 TELECOPIER 12061 383-6377 J rr *TYPEWRITTEN ONLY C KENT POLICE DEPARTMENT IAC FORM ,,EPORT OF [ ] INQUIRY [XX] ALLEGATION IAC No. [ ] COMMENDATION Date of Report: How Received: Officer Preparing Report: ID Number: ( ) Telephone 9-21-89 ( ) In Person! Chief Rod Frederiksen Time o eport. (X) Other Type of Report: Censurable conduct Reporting Party s Name: (Last) First h d e Uate of Birth Sex FREDERIKSEN, Chief Rod Address: Street City State Phone Res Phone. Uus 220 4th Avenue South Kent WA 980.32 8 - 4167 Agent Representing Inv ved Party: Relationship Phone er Date of dent Time of Incident Location o Incident No. of Witnesses i 9-14-89 Approximately 3:30 p.m. City Hall (2nd floor conference room) ' Related Case Report/s Other Officers Involvea Details of Incident (List Additional Complainants/Witnesses Before Narrative): On September 14, 1989 at approximately 3:30 p.m. , Captain Dennis Byerly persented a report for the committee appointed by City Administrator Ed Chow regarding recommendation for reorganizing the Drinking Driver Task Force to the. City Council Public Safety Committee. He stated that the committee was recommending that the Drinking Driver Task Force •organizationally be moved form ,th , Police Department to the City Administration. He further stated that there were nine (9) "specific recommendations", but did not initially identify them. I-stated to the Public Safety Committee and to Captain Byerly that I had not received a copy of the nine (9) specific recommendations':that had been mentioned. Captain ,Byerly . stated to me, "I don't know why you don't have a copy of the report.' I personally gave a 'copy of the report to Captain Rees during the week that he was Acting Chief. " He . further stated, "I don't understand why Captain Rees had not given a copy of the report to Chief Frederiksen." I .was upset that Captain Rees had 'not provided me with a copy of the report when I returned to work following vacation. I spoke with Captain Rees, who was in San Francisco, by phone. He advised that Captain Byerly had not given him personally or by mail a copy of the Task Force recommendations (see report fo Captain Rees) . (continue on back if necessary):.- - Reviewed Y (Sign) - {date/Time) C ie s view Da Assi ed :orate Pro 'Wmpleti.o ate Final Disposition/Late REP IN AR Y NOTIFI A�/N F RESULTS/D Chief s Final Approval/Date By. ( ) Telephone ( ) In Person ( ) 0 er `a J 1538G-11G REPORT CONTINUED: On •September 19, 1989 at 8:20 a.m. , I asked Captain Byerly to ,come to my office. I advised him that Captain Rees had denied that he had been personally given a copy of the committee report by him. Captain Byerly stated, "Chief, you must have misunderstood. I , , sa.id, that I sent Captain Rees a. copy of the report in the City mail .9 `..I advised Captain Byerly that he had advised the Public Safety Committee and I that he had personally given a copy of. the report to Captain Rees. Captain Byerly' s statement to me was "did I?" I gave Captain Byerly a direct order to provide me with a detailed report outlining exactly what had transpired - 'ax4 aining how he had provided a copy of the report to Captain Rees, (see attached repbrtlfrom Captain Byerly) . . . Note: Regarding Captain Byerly' s memo, he advised the following: II 1 ) I never stated that "I hand carried or handed Hal Rees a copy of the recommendations: You stated that you had personally given a copy of the committee recommendations to Captain Rees during the week that he was Acting .Chief (September 1 through . September 10) , 2) You state that Councilwoman Christi Houser read these' recommendations at the Steering Committee meeting. This has nothing to do with your. statement to'the Council Committee, and in addition, Ms. Houser stated only that the recommendation was that the Drinking Driver Task Force be moved to City Administration. I was not l surprised by .the recommended move, but by the nine (9) specific recommendations. Copies of that report were not given out at the Steering Committee meeting. • I was told that they would be given out at the Public Safety Committee meeting. On Tuesday, prior to the meeting,. a copy was given to Captain Rees by Officer Bob Bradley along with other information in a packet. This was provid^d as he ,was leaving for San. Francisco and was not arranged by 'you. The Chief of Police was never provided a copy of the report prior to the rtieetiRg. ODh1Pt»k>Wc xXkfMEkit�J70%k#ir• Captain Byerly's statement to the Council appears to be untruthful and has unjustly damaged the professional reputation of both Captain Rees and the Chief of -Police and misled the Council Committee. Witnesses: Councilman Paul Mann Councilwoman Christi Houser City Administrator Ed Chow City Attorney' Sandra Driscoll Parks Director Barney Wilson Finance Director Tony McCarthy Chief of Police Rod Frederiksen Administrative Assistant Mary Ann Kern Administrative Secretary Kelli Rogers Officer Bob Bradley Budget Analyst Priscilla Shea Executive Ass,istaet R,.iana McIalwain a, 1538G-11G