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HomeMy WebLinkAbout02-05-07,2 CORRECTED/APPROVED AT 4/5/07 MEETING MAPLEWOOD POLICE CIVIL SERVICE COMMISSION MINUTES February 5, 2007 Members Present: Steve Gunn, Chair - Debra Birkholz, Secretary Marlene Palkovich Others Present: Police Chief David Thomalla Staff Liaison Terrie Rameaux Alan Kantrud, City Attorney Chuck Bethel, Labor Relations Attorney John Banick Robert Fowler, Attorney for John Banick Call to Order The February 5, 2007 meeting was called to order at 7:05 p.m. Commissioners introduced themselves. Chair Gunn stated that this is the first of all future meetings to be held in the Council Chambers so that they can be cablecast live. He stated this raises a series of questions due to personnel issues discussed during meetings. These issues will need to be discussed with the City Attorney as they arise. Elect Secretary and Rotate Chair This mandatory meeting requires by Statute that the Chair rotates to the member serving the last year of their appointment which is Steven Gunn. Chair Gunn currently serving as Chair as Commissioner Birkholz, who should have been Chair for 2006 but requested it be passed to someone else. This is Chair Gunn's last year of his term therefore he's designated at the Chair. The Secretary is the member serving the second to the last year of their term, which is Marlene Palkovich. Commissioner Palkovich becomes the Secretary. Approval of Minutes Commissioner Palkovich made a motion to approve the minutes of the December 28, 2006 meeting. Commissioner Birkholi. seconded the motion. Ayes: 3, Nays: 0. Motion carried. This was an open meeting called as an emergency meeting from 9:34 a.m. to 10:45 a.m. that day. Review Exam Results and Certify Police Officer Elizibility List Chief Thomalla reviewed the process stating it started on November 14 with the written exam. The top 70 who passed the written exam went on to an oral panel interview in mid December and a written exercise. The top 40 candidates moved on to the Chief's interview held two seeks ago. There is a list of 31 candidates that passed all portions of the process: Each item is scored and weighted for a total score and then ranked based on that score. There were initially 94 applicants at the start of the process. There were 3 applicants that didn't pass the Chief's interview, 2 applicants took jobs with other departments and 2 other applicants were removed from the eligibility list as they have not become POST eligible to be licensed as stated in the job posting. The Chief stated that upon the Commission certifying the eligibility list, he will start background investigations and upon successfully passing the background, will then make conditional offers pending the outcome of the successful completion of the psychological, physical agility and medical exams. Commissioner Palkovich inquired under data privacy, if the names are not mentioned can this be discussed at an open hearing. City Attorney Kantrud stated that once the list is certified the applicant names are considered public unless there are statutory exceptions such as applicants are applying for undercover police position or another position that isn't relevant to this specific process, then the names can be kept private. Chief Thomalla 1 0 A clarified that when referring to candidates either on the list or when discussing background investigation reports, they are referred to by their number, e.g., candidate #1, candidate #2. No names are identified. Chair Gunn stated that once the list is certified, the list becomes a public document. City Attorney Kantrud confirmed this is correct. Commissioner Birkholz inquired if the candidates know what their number is on the list. Terrie Rameaux stated that letters were sent to the candidates informing them of their final score and ranking pending certification of the list by the Commission. Chair Gunn reiterated that the candidates know only what their ranking is and not that of the other candidates. Terrie Rameaux confirmed that is correct. Commissioner Palkovich made a motion to approve the list. Commissioner Birkholz made a motion to reject the list. She stated that there is still an open matter with regard to John Banick and she would like it resolved before filling positions. She requests looking at the list after the matter is resolved. Chair Gunn seconded the motion to approve the list. Commissioner Palkovich then withdrew her motion. Chief Thomalla stated that not approving the list would delay the hiring position, as he is currently three positions short of authorized strength plus John Banick's position for a total of four sworn officer positions. He stated that if the list is certified, backgrounds could be started and then hire three candidates, not four, if this is their wish. Chair Gunn stated that there needs to be more than three completed backgrounds to certify three names. He stated that there is a `second' list that is created with names of candidates who passed the background. There should be a minimum of five certified names on this list for the City Manager to choose from. Chief Thomalla wants to clarify that if the Commission does not certify the list, should he continue to do background investigations in order to establish hirable people. Chair Gunn does not want to send a message to the candidates on the list that there isn't a list. He stated he fears the top candidates will lose interest in the available positions, which they are informed of during the recruiting process. He suggests moving the list along. Commissioner Palkovich is comfortable with the hiring of three positions but not four. Chair Gunn stated that both motions on the floor are tabled until after discussion regarding the last item on the agenda (elimination of Deputy Police Chief position). Provisional Appointments of Acting Sergeants Chief Thomalla stated that there are currently two of the six patrol sergeants out on light duty. He discussed the provisional appointment of two patrol officers to acting sergeants with the City Manager and Labor Relations Attorney. The Chief cited Section 17 of the Police Civil Service Rules and Regulations regarding provisional appointments. He stated that in order to alleviate a lot of overtime pay for the remaining four sergeants, he will be appointing two patrol officers to Acting Sergeant status. Chief Thomalla stated he does not have a list of candidates to provide but one is not needed, based on the Rules and Regulations, on an emergency basis. Action with Respect to the Elimination of the Deputy Police Chief Position Chair Gunn stated that the Commission received a petition from Mr. Fowler, John Banick's attorney, regarding this matter and also a letter from the City regarding the City's decision not to appoint an attorney on behalf of the Civil Service Commission, at their request, to advise if the Commission has jurisdiction in that matter. Chair Gunn requested that Mr. Kantrud clarify the City's position. Mr. Bethel addressed the Commission. It was initially decided to appoint an attorney but the decision was changed. Mr. Bethel, for the record, stated that "The city believes the Commission is without authority to review or reverse the elimination of the Deputy Chief position or any other aspect of the City's recent reorganization. Mr. Banick has suggested he might sue the Commission to force it to intervene in his case. If that happens, City will defend the Commission's refusal to intervene as the Commission is a subdivision of the City itself. Mr. Banick is free to seeka court ruling that the Commission has authority to consider his case. But at this time it is not in the City's best interest to participate in these proceedings. Therefore, the City's representatives are here simply to observe, not to participate tonight." 2 Mr. Kantrud amended Mr. Bethel's statement to say that the City had been in discussions with a couple . attorneys the Commission recommended and there is someone willing to take on the role. The City's position is to wait for the District Court's determination to see if the jurisdiction is there to decide the question, then the City would issue the Commission Counsel to advise. Commissioner Palkovich stated she feels there are two issues at hand. One is whether or not the Commission has any right to deal with the managerial decision to reorganize and eliminate the Deputy Chief position. Her professional opinion is that the Commission does not have that right based upon the State statute. She stated she has reviewed the Statute numerous times. Commissioner Palkovich stated that the Commission has not had any collective discussions regarding this at any of the meetings due to the open meeting law. She stated she believes very strongly that the Commission does have power under State Statute 419.05. Commissioner Palkovich made the following motion: `Based on the assumption that Minnesota Statue 419.05, "Duties of the Commission" gives this Commission absolute control over all officers and employees of the Maplewood Police Department in the area of employment, promotion, discharge and suspension. I move that John Banick is an employee of the City of Maplewood and, therefore, his name should be reestablished on the Civil Service Eligibility list and, in light of the reorganization of the department, John Banick should be demoted back to the Lieutenant position effective January 1, 2007 and he should receive all back pay from that day to this date and that his salary should stand." (Exhibit A) Motion Seconded by Commissioner Birkholz. Discussion --Chair Gunn provided Mr. Fowler the opportunity; to speak before the Commission regarding this motion. Mr. Fowler stated that Mr. Banick would not oppose the motion as he would like to continue to work for Maplewood. He stated,he agreed with Commissioner Palkovich that the State Statute is clear. He reiterated what occurred in court that the Judge asked the City Attorney how the City can justify the removal of Mr. Banick under the circumstances, aside from the reorganization. He stated he emailed the Commission a summary of the hearing of what he believed came out of the hearing. Commissioner Palkovich stated she felt it was a valid recap. Mr. Fowler stated that this will likely be in protracted litigation over this matter and that it's • the City and the tax payers that will suffer. He stated he believes the jurisdiction issue is a smoke screen used by the City Council to do what they've done without having the authority to do it. Mr. Fowler read into the record a letter received from Gary Cayo, President of the Minnesota Fraternal Order of Police—MFOP (Exhibit B). In summary, the letter states that the MFOP represents approximately 2,400 members in Minnesota,and over 322,000 members nationally, one of which is John Banick, and urged the importance and potential impact of the Commission to uphold the Police Civil Service Law in this matter.It stated that Statute 419 is one of the few legal protections essential to security their rights. If necessary, the MFOP is willing to provide resources to support this case on a state and national level. Mr. Fowler also serves as general counsel for this organization. He stated he was approached by President and National Trustee for Minnesota at the national level who expressed great interest in this case. He reiterated that this is not just about a case for John Banick, but can have a huge impact on all police officers. He thanked the Commission for their consideration. Commissioner Palkovich stated the Commission was aware of the impact this could have on civil service. Mr. Fowler stated he was looking for a decision on the Commission's direction in this matter. He stated he does not want to involve they Commission in a legal case if he doesn't have to. He does not want to be in a position where he has to sue the Commission to get jurisdiction to have a legal decision made. He felt the motion made by the Commission may make that move. He stated the judge indicated that the court could provide a ruling on the matter if the Commission were to become a party to the lawsuit. Mr. Fowler stated he believes there are three options --#1 make. a motion such as the Commission did tonight; #2—Join the City as a plaintiff; #3 -Do nothing and he'd be forced to involve the Commission in a lawsuit. He stated he believe option #1 will solve the matter. He thanked the Commission for allowing him to speak on this matter. 3 Commissioner Palkovich stated she want the Commission to understand that this motion has nothing to do with the City's determination to reorganize the department. She stated that if Mr. Fowler ends up suing the Commission, which in turn is suing the City, that this is not a good use of the citizens' money and the court's time. Commissioner Birkholz agreed with Commissioner Palkovich on the matter and summarized that she agrees that if there is reorganization, the City can eliminate the position, but not the employee. Chair Gunn stated he requested Staff Liaison TerrieRameaux to provide the minutes pertaining to discussions regarding a Deputy Chief position. The minutes were from 2001. (Exhibit C) He stated at that time the City sought the approval of creating a new position and instead of creating a captain, take one of the lieutenant positions and make it a deputy chief position. He stated the Commission members at that time (Steve Gunn, Joe Zappa and Kathleen Juenemann) discussed this matter at more than one meeting. There is also a memo from the City Manager at that time to the Commission discussing the importance of this and seeking the Commission's approval The Commission approved the process of how to pick a deputy chief. At that time, the entire process was under the guidance of the Commission. The Commission had decided it would be an internal promotional list. Through the process a list of qualified officers was created and John Banick stood out as the best candidate for Deputy Chief. It was ultimately the City's decision but they were in agreement with the Commission's decision to promote John Banick to Deputy Chief. Based on the discussion at that time, he believes the creation of the position had to do with the Police Civil Service Commission. Chair Gunn stated that .there is nothing in the minutes to reflect any indication to any of the candidates that if a person steps out of a lieutenant position and promoted to deputy chief, the person forgoes all civil service rights the person had in the past. The City did not indicate to the Commission at that time that they would be approving a list and asking someone to remove himself from the protections of civil service. Chair Gunn stated that in terms of the remedy proposed by the motion of returning John Banick to Lieutenant, which is not specifically identified in the Rules as a specific remedy, he recalls in the past when Chief Collins was demoted from Police Chief to Sergeant. The City at that time sought to terminate his position. At that time as a result of a hearing regarding this matter, the Commission voted not to terminate him but to demote him to the previous position he held, which was sergeant. Chief Collins appealed the decision to the Minnesota Court of Appeals. The City supported the Commission's position that that the Commission had the authority to do this. He stated that this is a significant factor. He also stated that the motion made today is perfectly consistent with what happened previously in the City of Maplewood. He also stated that this was also recognized in a decision by the Minnesota Court of Appeals (unpublished decision given to the Commissioners at that time) that the Commission, after finding they had jurisdiction, had the authority to fashion a remedy to meet the situation. Thus the motion made of returning John Banick to his previous position with back pay is appropriate and he should not have been removed. Chair Gunn addressed some comments made by Mr. Fowler. He stated that MFOP has become a very strong union over the years. He stated that, at one time it wasn't the unions that protected police officers in just cause hearing but civil service commissions. He stated the worded `authority' was put in the statutes to protect police officers and as recent as March 2001 the authority was there in the Commission to protect police officers. Their jobs could only be affected for reasons related to performance. Chair Gunn stated he supports the motion based on the reasons cited above. With regard to the motion on the floor made by Commissioner Palkovich and seconded by Commissioner Birkholz: Ayes: 3; Nays: 0. Motion carried. Chair Gunn stated he will provide a written summary of this discussion for signatures of the Commission that would be an available document for people to review. (Exhibit D) Commissioner Palkovich stated that the Commission is very responsive to the open meetings and having the citizens of Maplewood know what is going on. Therefore she requests that the City Attorney be present at all future Civil Service Commission meetings in order to assist the Commission with data privacy issues that come up. City Attorney Kantrud stated that both attorneys would relay the request to the City Manager. He stated it r. would likely be Mr. Bethel since he deals with personnel -related matters, although Mr. Kantrud would be available if Mr. Bethel is not. Mr. Bethel agreed. Chair Gunn stated he thought it important especially in regard to discussions with respect to background investigations. With regard to the approval of the police officer eligibility list discussed earlier, Commissioner Birkholz withdrew her motion to reject the list since the Commission has completed their action with regard to John Banick, Commissioner Palkovich renewed her motion to approve the police officer eligibility list discussed earlier. Commissioner Birkholz seconded the motion. Ayes: 3; Nays: 0. Motion carried. Chief Thomalla stated the next step in the process is getting the background packets back from the top 15 candidates who were mailed out packets and start the backgrounds once we receive them. Other Nothing to report. Adiournment As there was no further business Commissioner Gunn adjourned the meeting at 7:51 p.m. Respectfully submitted; Terrie Rameaux Staff Liaison 5