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HomeMy WebLinkAbout04/05/2007X MAPLEWOOD POLICE CIVIL SERVICE COMMISSION MINUTES April 5, 2007 Members Present: Steve Gunn, Chair Marlene Palkovich Debra Birkholz Others Present: Police Chief David Thomalla Staff Liaison Terrie Rameaux Alan Kantrud, City Attorney Call to Order The April 5, 2007 meeting was called to order at 8:05 a.m. Approval of Minutes Commissioner Palkovich had a question about Page 3, Paragraph 2, of the February 5, 2007, minutes where it states, "She stated the Commission has discussed and reviewed the statute numerous times ..." She believes she said, "I have reviewed the statute numerous times ..." This is for purposes of clarification as the Commission hasn't had discussions outside of their meetings. With that change, Commissioner Palkovich made a motion to accept the minutes of the February 5, 2007, meeting. Second — Commissioner Birkholz. Ayes — all. Review Background of Police Officer Candidates and Certify Names Commissioner Gunn explained that after the police officer exam, a police officer eligibility list was established at the Civil Service Commission meeting on February 5, 2007. Background investigations were then done on the candidates in the rank order they appear on the list. Because of the confidential information contained in the background investigations, candidates will be referred to by their number. At this meeting, Candidates 1, 2, and 5 will be discussed. Candidates 3 and 4 and 6 through 12 have withdrawn from the process. Candidate 1 - Commissioner Palkovich had a concern about the last two sentences of the Previous Applications and Backgrounds section of the investigation. She asked the Chief if he had any concerns about the matter, and he stated he did not. Candidate 2 — Commissioner Birkholz and Commissioner Palkovich had questions regarding this candidate's previous employment with another agency. The Chief felt the problem was more about problems with that department's FTO process rather than the candidate. This candidate has been working for another department since then and has performed successfully. Candidate 5 — There was very little background to investigate on this candidate; but the candidate works at a local business, and officers from our department have had contact with the candidate and feel confident about the candidate's ability to do a good job. Commissioner Birkholz made a motion to approve the background investigations of Candidates 1, 2, and 5. Second — Commissioner Palkovich. Ayes — all. Chief Thomalla explained that with the withdrawals of Candidates 3 and 4 and 6 through 12, they will be removed from the eligibility list, which will allow other candidates on the list to be brought to the Commission for certification in the future. Commissioner Palkovich asked Chief Thomalla about Candidate 9's letter, and the Chief explained it had to do with the candidate being or having been a paramedic and Civil Service Commission bylaws allowing for a reach down for a paramedic candidate. Commissioner Palkovich made a motion to certify the names of Candidates 1, 2, and 5. Second — Commissioner Birkholz. Ayes — all. Commissioner Gunn thanked Sergeants Doblar and Karis and Officer Palma for their work on the background investigations, which were very helpful to the Commission members. Other Commissioner Gunn stated that a letter received from Maplewood resident John Nephew regarding the Commission's last meeting would be put in the record. (Exhibit A) As a matter of follow up, the Commission asked about the status of the order they issued at their last meeting regarding reinstating Deputy Chief Banick. They were advised that Deputy Chief Banick has not been reinstated as of this date. City Attorney Kantrud informed the Commission that Deputy Chief Banick's attorney had filed a Writ of Mandamus, which was denied by Judge Mott. He stated that he believed there is still underlying litigation pending in the courts. Because the argument was made in court that the Commission failed to serve its order on the, City, the Commission asked for clarification on who should be served with the Commission's orders in the future. City Attorney Kantrud suggested that since this is a Plan B city, the orders should be communicated directly to the City Manager and not to the Recording Secretary. While they may not have to serve the order in the classic legal sense of service of process, a direct communication with the City Manager would have been appropriate in this case as the City was never formally noticed of the Commission's decision. Commissioner Gunn asked if that was, indeed, the case. Recording Secretary Rameaux advised that approximately a week and a half to two weeks ago the City Manager asked for information and the minutes from the last Civil Service Commission meeting; and she gave him a whole packet, which included the order. It was decided the next time the Commission issues an order, they will personally serve it on the City Manager. Commissioner Birkholz asked if the Commission needed to take any action at this meeting to make a second approval of the order they made. Commissioner Palkovich stated she felt that it was signed by all of them at a public meeting that wa§ televised, and their intentions should have been known. Commissioner Birkholz asked if they had to do anything now to ensure the City knows about the order they signed. Commissioner Palkovich asked whether Judge Mott had the order they signed, and Commissioner Gunn stated he would have to have the order to rule on whether he was going to enforce it and that it would have been an exhibit. The Commission members stated they hadn't actually seen a copy of Judge Mott's denial of the Writ of Mandamus and asked if they would be able to get a copy. Recording Secretary Rameaux stated she hadn't seen a copy of it and had only learned of the denial via the newspaper. The Commission members felt that since they are the body that directed the order, they should have been notified of its outcome. Commissioner Palkovich advised the other Commissioners that because of the open meeting law and their inability to communicate with each other regarding concerns, she had requested permission from the City Manager for a short closed -session meeting to discuss personnel procedures. She said she had received a response from City Attorney Kantrud regarding this request. She agreed with most of his response but took exception with his comment that she is perhaps too much of an advocate for John Banick. She said she considers her role as a Commissioner to be an advocate for the City, the Police Department, and the state statute she's supposed to be following. Her request for a closed session was denied. She agreed that the open meeting law is very important, but sometimes there are things that shouldn't be discussed in public. Commissioner Birkholz stated she had seen a section of the open meeting law that she felt gave them authority to have some closed sessions; and Commissioner Palkovich stated she felt that, too, due to the nature of their commission vs. other commissions. City Attorney Kantrud found the Writ of Mandamus and read it aloud. It states: "Mandamus is appropriate where (1) there is a clear duty to act, so clear and complete as to not admit any reasonable controversy (State ex rel. Anderson v. Bellows), and (2) there is no adequate remedy at law (Pole v. Trudeau). Neither of these two 2 required factors has been established. Plaintiff has an adequate remedy at law by proceeding in this case to seek a legal determination by order or summary judgment or otherwise that he can be reinstated pursuant to the requirements of the Civil Service provisions cited in the current motion (that would be Mr. Fowler's motion). Clear Duty to Act—Here the duty of the defendant to act to reinstate plaintiff Banick (meaning City) as defendant pursuant to the actions of the Police Civil Service Commission is not sufficiently clear because there is yet to be a legal determination on the extent of the defendant's authority to "reorganize" an individual out of the Police Department by eliminating the position the individual holds. Now that the PCSC has acted, further proceedings are required to determine whether there is a clear duty of defendant to act. Trial and summary judgment are but two vehicles to resolve this issue. The McCauley and Spurck underlying each case's citations omitted cited by plaintiff (meaning Mr. Banick) clearly stand for the proposition that Mandamus is appropriate once the duty to act is clear." It then gives the initials "JTM" (for Judge Mott), and it is signed the 28` of March 2007. Mr. Kantrud explained that this information is a public record, and the hearing was also open to the public. Mr. Kantrud offered to e-mail the decision to the Commission members. Commissioner Palkovich stated that she did attend the hearing, and she found it to be a learning process. Mr. Kantrud then spoke on the issue of the open meeting law question. He was asked if a closed meeting would be the appropriate vehicle to discuss essentially suing the City to compel the City's compliance with the Commission's order. He stated the closed meeting portion of the open meeting law gives authority to discuss future pending litigation but doesn't contemplate that the Commission would be essentially suing its sister (the City). Therefore, the Commission is allowed to discuss that issue, it just can't be in a closed meeting. Commissioner Palkovich felt that there were procedural issues that would best be discussed in private but accepted Mr. Kantrud's interpretation. Commissioner Gunn stated he is aware of the legal argument by both sides of Deputy Chief Banick's case and Judge Mott's finding that there is not a "clear duty to act." He thinks it means that if Statute 419 was more specific, the judge could have found a clear duty to act. Commissioner Gunn feels, from what City Attorney Kantrud read, the case may still find that the Commission's order is enforceable at summary judgment, which is before trial. This was a preliminary review based on whether there is a clear duty to act or a specific statute that says this is what the Commission should do in a specific situation. Commissioner Gunn stated from the way their order was written.and their discussion at their meeting on February 5, 2007, it was the Commission's interpretation of the statute; and his interpretation of Judge Mott's order is that it hasn't been finally determined by the judge. In other words, the judge wants to see more information. Commissioner Gunn asked if the City is still taking the position that it hasn't been served with the Commission's order and inquired whether they should take steps to serve the order on someone so the issue doesn't come up again at summary judgment. City Attorney Kantrud feels the City is sufficiently aware of the Commission's order, and it was at the heart of the Mandamus action. City Attorney Kantrud explained that with this case, the whole authority of the City is in question; and it is why the litigation is proceeding. The Writ of Mandamus was asking the judge to make a decision right now, and that is the reason why he denied it. There is a remedy at law and the plaintiff is seeking a remedy at law, and it should be allowed to proceed. There is no clear duty to act at this point, and that's why the refusal was made (in addition to other procedural issues). Commissioner Gunn explained that it's also a case of first impression, meaning it's the first time this has happened in the State of Minnesota; therefore, there isn't another case just like this. Commissioner Palkovich stated that as Commissioners, it is important that they know what they are allowed to do. Commissioner Gunn advised that once a decision is made, the judge will most likely write something to provide the Commission with guidance and set out the issue for the future. Commissioner Palkovich felt this would also have strong ramifications for Civil Service Commissions throughout Minnesota. Commissioner Gunn said the District Court will look at the authority of the Civil Service Commission vs. the authority of cities to reorganize and how they "mesh together." It could potentially have an impact beyond the Civil Service I" - system itself, so it's becoming a significant legal issue. Commissioner Palkovich explained they even said in their order that the City has the right to reorganize, and Commissioner Gunn said the ruling will address the impact and effect of that and what the results of that reorganization are as well as what is the authority of a Police Civil Service Commission. Commissioner Birkholz asked who from the City is accountable to the Civil Service Commission for not following through on their order. Commissioner Gunn explained that since the City is not supporting the Commission's position, there is a mechanism Deputy Chief Banick can use to test that authority. A discussion was then held about judge vs. jury decisions to be made in Deputy Chief Banick's particular case. Commissioner Palkovich reiterated that the Commission really needs to know what they are allowed to do under statute and what they are not. She would also like to know what the City thinks their role is for future actions. City Attorney Kantrud,,stated that in reorganizing the way it did, the City didn't seek the Commission to take up this issue. The Commission took up the issue and made an order based on their interpretation of the statute without being directed to do so by the City. To characterize the City as not being supportive of the order begs the question of why did they make the order in the first place. The Commissioners disagreed with that statement because the officer brought the issue forward to the Commission. They didn't seek it out the officer brought it to them, which is their role, and they acted on it. City Attorney Kantrud agreed that was the Commission's interpretation of the statute. Commissioner Palkovich explained that City Manager Copeland had asked the Commission members to develop some questions that could be asked of applicants to the Commission. She wrote some questions and asked that the other Commissioners review them to ensure there were no inappropriate questions. The questions were reviewed, and Commissioner Gunn commented on the excellence of the questions and said they would be forwarded to Mr. Copeland. Copies of the questions were also given to Chief Thomalla and City Attorney Kantrud for their information. Chief Thomalla asked about future police testing processes and interview questions for candidates and whether it would be appropriate to close the meeting for discussions of those questions. Otherwise, candidates with access to the Maplewood Civil Service Commission meetings on cable would have an unfair advantage over other candidates. Commissioner Gunn said there is a specific section on discussion of test questions in the Data Privacy Act, and City Attorney Kantrud will review that information and advise the Commission. Commissioner Birkholz announced that the City has chosen not to reappoint her to the Civil Service Commission, and Commissioner Palkovich asked why her application was disregarded. City Attorney Kantrud explained that that was a decision made by a vote of the City Council, and that inquiry should be made to them. Recording Secretary Rameaux was asked to check on this and advise the Commission. Commissioner Birkholz was the only applicant for the Commission initially, but now there are two more applicants who will be interviewed by the City Council. It was explained that even though Commissioner Birkholz's term is expired, she will continue to serve on the Commission until a replacement is approved by a majority of the City Council. Adjournment As there was no further business Commissioner Gunn adjourned the meeting at 8:55 a.m. Respectfully submitted, Terrie Rameaux Staff Liaison