HomeMy WebLinkAboutCity Council Committees - Civil Services Commission - 01/18/1990 (5) 9
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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
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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
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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 ''
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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
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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
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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
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*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
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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