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HomeMy WebLinkAboutCity Council Committees - Civil Services Commission - 01/18/1990 r o LU CITY OF KENT ,JAN 1990 ! CIVIL SERVICE COMMISSION CITY OF KENT MINUTES CITY r LE R K JANUARY 18, 1990 Members Present: Bob Jarvis Alex Thornton Ron Forest Others present: Ed Chow, City Administrator Sandra Driscoll, City Attorney Don Olson, Personnel Don Fronsdahl, Battalion Chief Jed Aldridge, Asst Fire Chief Barbara Keohane, Corrections Captain Dennis Byerly, Police Detective C. E. Miller, Police Captain J. Miller, Police Alana McIalwain, Executive Asst. Jan Banister, Administrative Asst. Sharon Howard, Attorney Bill Coats, Attorney Catherine Dixon, Secretary/Chief Examiner Several Others The meeting was called to order at 1210 by Chairman Bob Jarvis. Chairman Bob Jarvis introduced and welcomed the new Commissioner, Mr. Ron Forest. Chairman Bob Jarvis decided to go directly to OLD BUSINESS and the recommendation by Catherine Dixon, Secretary/Chief Examiner. Primarily this was due to the fact that there were attorneys present who needed to leave once Captain Byerly's complaint was addressed. OLD BUSINESS Chairman Bob Jarvis summarized that at the last Civil Service Meeting the Acting Chairman had stated that there would be a Hearing at the January 18th meeting. Catherine Dixon, Secretary/Chief Examiner, had, after the meeting as a courtesy informed Captain Byerly and all parties that there would in fact not be a hearing. This was primarily due to the fact that the Commission needed to rule whether or not they could have a Hearing on this specific issue. Chairman Jarvis introduced Catherine Dixon to make her recommendation. Page 2 Civil Service Minutes January 18, 1990 Ms. Dixon stated that Sandra Driscoll had noted that there would be a conflict of interest in her representing the Commission. Therefore, Catherine Dixon approached Sharon Howard who has had past experience with the Kent Civil Service Rules and Regulations. Catherine Dixon recommended that the Commission retain Ms. Howard and allow her the opportunity to address the Commission specifically regarding the rules and regulations pertaining to Captain Byerly's complaint. Chairman Jarvis asked Sharon Howard to give a brief overview. Ms. Howard stated "for the record" she had the originals of a "Motion for contuinuance" presented by Mr. Coats on behalf of Kent Police Department as well as an "Affidavit in support of that motion" as well as a "Memorandum of the Kent Police Department" . She suggested that the Commission allow Mr. Coats to set forth in the record his objections to the jurisdiction of the Commission and allow Captain Byerly to respond and then Ms. Howard could address the Commission on her response for their consideration. Chairman Jarvis stated that that would be appropriate. Mr. Coats stated that their concern is that the Commissions rules state very specifically in Rule 15 the procedures for going through disciplinary actions. The Rule applies to suspensions, demotions and discharges of employees and it specifies that a Department Head can only suspend, demote or discharge an employee for just cause. It then says that there is an appeal to the Commission. Mr. Coats stated that it is clear that the action taken concerning Captain Byerly was a written reprimand. Clearly this does not fit Rule 15. What Captain Byerly is trying to do is go back under Civil Service Rule IV which concerns Hearings, Investigations and Complaints and consists of three sections. It essentially says that if someone has a complaint they can file it with the Commission who will investigate and then have a hearing. What Captain Byerly is attempting to say is that, we understand, he is entitled to bring his written reprimand to the Commission and have a Hearing as to whether there was just cause for that particular reprimand. Mr. Coats feels that this would be a great increase in the Civil Service Commissions jurisdiction and something that this Commission has not done before; to extend to the smaller disciplinary actions that is normally vested with the department. There is nothing in the Commission Rules that says that eg: it has to be for Just Cause or that it is specifically reviewable by the Commission. That brings up the question whether the Commission is going to be reviewing those decisions. This case shows and Page 3 Civil Services Minutes January 18, 1990 illustrates the problem, if the Commission is going to hear this particular case, would they hear a complaint on a performance appraisal? Mr. Coats is keenly aware that the Commission is a citizens group and that it limits itself to the more serious matters of suspensions, demotions and discharges. The rules as a whole state that. In Rule IV, Section 2 it states that Hearings and Investigations are to be carried out in conformance with Statutes 4108 and 4112 . Statute 4112 (Police) only talks about hearings for suspensions, demotions and discharge. Mr. Coats stated that in reading the Rules it shows that this is not a case that the Civil Commission should be hearing. Mr Coats realizes that this is a legal question and that the Commission will need Ms. Howard's advise on that. If the Commission elects to hear the complaint Mr. Coats is asking for a continuance. This concerns statements made at a meeting and that the statement was apparently witnessed. There were, according to the Internal Affairs Officer, at least 17 people that he wishes to interview. He has at present interviewed 5 and given his duties, the normal course of investigation will take another 3 weeks to complete the other 12 . Mr. Coats stated that they feel firm in their position but they want to put all evidence together so that there is no time wasted in calling everyone. Mr. Coats would then consolidate all evidence so 'that it is more manageable. Mr. Coats recognizes the Commissions time constraints (the last hearing went for 2 weeks) . Mr. Coats would agree to the appointment of a Hearing Officer to prepare a record for the Commission and submit the record with the proposed decision for the Commission. Mr. Coats stated that his party is more than willing to try this case before the Commission if that is the Commissions conclusion. Mr. Coats felt that would be an alternative that they would agree to as an accommodation to the Commissions schedule. Chairman Jarvis asked Captain Byerly if he would like to address Mr. Coats statements. Captain Byerly cited Rule IV stating that he didn't see there being an issue whether or not the Commission,, should hear the complaint. He stated that Mr. Coats is trying to minimize what this allegation is. It is not a minor ,allegation. This is an allegation of dishonesty and is agyaihst a Command Officer. "If I am expected to operate as a�, Ccmmand Officer or a Police Officer, testifying in Court,. I can not have anything like this in my file. I will leave it with the Commission in the sense that I am requesting a Hearing to address this issue under Rule IV My preference is for an Open Hearing so that testimony can be taped and witnesses can be listened to in this matter. I submit to you that this is no minor issue. This is a major issue. " Page 4 Civil Service Minutes January 18, 1990 Ms. Howard stated that she had anticipated that there would be a question about jurisdiction but had not received Mr. Coats memorandum until earlier in the day. She believes that it is within the Commissions power to limit their jurisdiction by Rule if they chose to do so. The current state of the Rules, however, are so broad that it would appear that unless the Commission is prepared to make a change in its Rules at this time, Rule IV as both parties have indicated, states that "any person may file with the Secretary and Chief Examiner of the Commission a complaint against any decision, action or thing or a petition in support of any privilege or right involving personnel matters". In light of that broad language and also RCW 4112.040 which has given the Civil Service Commission from the start the authority to make rules and regulations regarding discharges, suspensions etc. as well as any other matters. Ms. Howard believes that it was within the earlier Commissions power to make the definition broad, which they did. Unless the Commission should chose to ammend its rules at this time Ms. Howard believes that it is within its jurisdiction should they desire to hear Captain Byerly's complaint. Regarding the second matter pertaining to setting up a Hearing Officer to collect the testimony to provide the Commission. Ms. Howard had not contemplated that question nor researched it but believes that if the parties agree that that is an option. This would not preclude Captain Byerly from having an open meeting but would be a way for the Commission to have a factfinder collect the facts and make the record. Then recommend to the Commission a quick review. Ms. Howard stated that that would be one option which would still save the Commission some time and still be an Open Hearing if Captain Byerly desired. Captain Byerly questioned, that if he wanted ,it to be an Open Hearing could he then later hear the depositigns? Ms. Howard stated that the Commission would consider the entire record and recommendations. She anti *pates from Mr. Coats remarks that it would be something aloz*:�t.4e lines that the Federal Court sometimes uses. They appo, nt a special master to actually collect the testimony ajiio evidence and conduct the hearings and then the special ma4or proposes the recommendations for exam to a Federal Court Judge who then decides whether to adopt them or to hear more hearings at that time. Mr. Coats addressed Ms. Howard with regard to Rule IV, stating there is no Just Cause provision and was she saying that Mr. Coats has the burden of showing Just Cause? If not, what Page 5 Civil Service Minutes January 18 , 1990 standard procedure is Ms. Howard suggesting? Ms. Howard agreed it is not clear from the Rule and doesn't talk about cause in that portion and perhaps the parties at the time of the Hearing want to argue what the standards should be and put that forward as well. It simply says that they investigate and report the complaint with an explanation of the facts. It doesn't say on what basis they have to agree or disagree. Ms. Howard stated that, unfortunately the Rules leave a lot of questions. Mr. Coats stated that they intend to argue that without a Just Cause provision in the laws in the State of Washington his party would have discretion he believes. He stated it is not clear to him who goes forward under this rules. If there is no show of Just Cause then why would the Commission review it? Mr. Coats stated that without standards we would have a hearing with no purpose. Ms. Howard stated that that depends on what the party seeks to have as a remedy, and he was persuasive on that point. She concurs that there are a lot of questions that she had noticed herself. The fact remains that it does say that any person can file a complaint against any decision. She understands from Captain Byerly that he disagrees with this decision. At the time the Commission or a Hearing Officer chooses to hear the matter it seems that some of those preliminary pieces would need to be worked out in terms of whose burden it is. Ms. Howard stated that part of what Mr. Coats is mentioning is that typically the Employer has the obligation to go forward with a case if its a Just Cause question. The complaint section does not say if there is a decision alleging no Just Cause. If it is not a Just Cause matter, typically it is the complaintants problem to go first and to carry the burden to whoever the carrying person may be. Captain Byerly addressed Chairman Jarvis and stated that his intent is to discover the truth. To the issue of taking this action in some form other than an Open Hearing, Captain Byerly feels that the Commission will not find the truth unless there is an Open Hearing. The reason being that he needs the opportunity to cross examine. If there is any other method of action used the Commission will not have the opportunity to see the truth of the matter. Captain Byerly stated that he is requesting an Open Hearing. Chairman Jarvis questioned Captain Byerly if he is only Page 6 Civil Service Minutes January 18, 1990 looking for the truth or is he also requesting a remedy? Captain Byerly stated that he had no intent other than arriving at the truth. He submitted this is not just a verbal reprimand but a written record in his personnel file accusing and finding him guilty of dishonesty. He stated that this is devastating. Ms. Howard asked Captain Byerly if, as an outcome of this hearing, would be assuming that the evidence came in to support him, would he anticipate that the Commission ask that the reprimand be removed from his personnel record? Captain Byerly stated that he was not sure of the Commissions authority in that area. Assuming that the Commission did have that authority he then stated that he would request that it be removed from his file. Ms. Howard stated that she appreciates that there are a lot of questions with regard to Commissions authority and what the outcome would be. Chairman Jarvis moved that the Commission hear the case. Primarily it is everyones right to be heard. If there is a discrepancy they should have the opportunity to speak. Chairman Jarvis opened the meeting for discussion. Commissioner Thornton stated that without knowing what the charges are it seemed to him that forms of corrective action are vested in the Department Head and his subordinate administrative staff. He questioned if the matter was serious enough for the Commission to hear. Chairman Jarvis stated that it is a serious decision to make because each individual takes things at a different level of seriousness. Captain Byerly perceives it asi very serious, others may see it as a lesser form of disciplinary action. The Captain believes that this will disrupt,,4 , Future in the force. Chairman Jarvis's perceives it as Oakliquis. If it were not going to disrupt his ability to perf in the future then it would be a lesser form. It will di;�t�pt his future as a Police Officer in credibility. Commissioner Forest stated that if the Commission did not hear this complaint where would Captain Byerly take it? He asked if that was not the purpose of the Commission? He understands where the Chief has rights and responsibilities to run his department. The question as to whether this is more serious than an assignment to patrol or detective squad. If it goes Page 7 Civil Service Minutes January 18, 1990 into Captain Byerly's personnel file it could cause harm to his future. Agreed that the Commission should hear Captain Byerly's complaint. Commissioner Forest moved that the Commission hear Captain Byerly's complaint. Seconded by Commissioner Thornton. Motion carried. Chairman Jarvis moved that the Commission retain Sharon Howard as Outside Counsel. Seconded by Commissioner Forest. Motion carried. Chairman Jarvis questioned if there was anything further to be addressed at this time. Ms. Howard asked if the Commission was going to hear the complaint as a group. Chairman Jarvis stated yes. Ms. Howard then asked for a common scheduling be made for parties to be present. Chairman Jarvis asked if that needed to be done at this time. Ms. Howard stated that it could be done at anytime. Time is needed to compare calendars, check with Mr. Coats and prepare a Public Notice. Chairman Jarvis stated that the arrangements for the Hearing date be coordinated through the Secretary and Chief Examiner. Captain Byerly requested that he have discovery of the statements taken by Mr. Coats and that he be given a few days to study them. Mr. Coats stated that Detective C. E. Miller, the Internal Investigator, had stated that in the normal course of investigation it would take about 3 weeks to complete the statements. Mr. Coats does not anticipate any problems with discovery. If there are problems Mr. Coats suggested that the Commission authorize them to have Ms. Howard settle any differences that might be concerned with Dieovery so that there is no need to call a meeting and have delays. Ms. Howard stated that in order to facilitate getting everything ready she would be happy to serve, in the capacity of mediator of any discovery questions. Shqk stated if they cannot agree they would have the Commission rude on them. Ms. Howard asked to have accepted into the record the Motion for Continuance, Affidavit from Mr. Coats and the Memorandum of the Kent Police Department. 0 Page 8 Civil Service Minutes January 18, 1990 Chairman Jarvis motioned to accept into record Ms. Howard as the mediator of any discovery questions and the three documents: Motion for Continuance, Affidavit from Mr. Coats and the Memorandum of the Kent Police Department. Seconded by Mr. Forest. Motion Carried. Chairman Jarvis then allowed the attorneys to leave. REPORTS City Attorney, Sandra Driscoll- No report. Fire Chief, Angelo- No report. Police Chief, Frederiksen- No report. Personnel Director, Don Olson- No report. OLD BUSINESS Chairman Jarvis entertained a motion that the December 21, 1989 minutes be accepted. Motioned by Mr. Thornton and seconded by Mr. Forest. Motion carried. NEW BUSINESS Chairman Jarvis entertained a motion to Accept Into Record the letter dated January 11th from Rob Dreblow resigning his position as Commissioner. Moved by Mr. Forest, seconded by Mr. Thornton. Motion carried. Chairman Jarvis motioned to Accept into Record the memo from Mayor Kelleher dated January 11, appointing Ron Forest as a Member of the Kent Civil Service Commission. Moved by Mr. Thornton, seconded by Mr. Forest. Motion carded. Chairman Jarvis moved to Accept into Record the memo from Chief Frederiksen dated January 16, advisin, that Officer Petersen's probationary period has been extexted for 90 days to include the memo from Chief Frederiksen to'�4tfi;cer Petersen dated January 11. Seconded by Mr. Forest. 4*ion carried. Chairman Jarvis motioned to Accept into Re0ord. the 6 memos from Chief Angelo dated January 18, advising "t �rirefighters Scott Howard, Kurt Self, Steve Parsons, Paul Moffat, Martin Smale and Mike Lant had sucessfully passed their Second Class Promotional Exam, effective January 19, 1990. Seconded by Mr. Forest. Motion carried. Page 9 Civil Service Minutes January 18, 1990 Meeting was adjourned at 1237 p.m. The next regular meeting is scheduled for February 15, 1990 at 12:00 in the Council Chambers. Respectfully submitted, Catherine M. Dixon Secretary and Chief Examiner Approved: Robert Jarvis Chairman