Civil Service Commission

Office of the Clerk of Council City of Gahanna 200 South Hamilton Road Gahanna, Ohio 43230 Meeting Minutes Civil Service Commission Paul Leithart, Chair David Schroeder, Vice Chair Paul Bittner Judith Glenn Mark Foster Donna L. Jernigan, MMC, Sr. Deputy Clerk of Council Tuesday, February 7, 2012 6:30 PM City Hall Committee Rooms 1. CALL TO ORDER AND ROLL CALL The Civil Service Commission met in Regular Session on Tuesday, February 7, 2012, at Gahanna City Hall, 200 South Hamilton Road, Gahanna, Ohio. Chair Paul Leithart called the meeting to order at 6:32 p.m. Agenda for this meeting was published on February 1, 2012. Present 4 - Paul L. Bittner, Paul L. Bittner, Paul L. Bittner, and Judith Glenn Absent 1 - David Schroeder 2. ADDITIONS OR CORRECTIONS TO THE AGENDA 3. APPROVAL OF MINUTES: January 10, 2012 Organizational and Regular Meetings. A motion was made, seconded by Glenn, to approve the minutes of the January 10, 2012 Organizational and Regular Meetings. The motion carried by the following vote: Yes: 5- Leithart, Bittner, Bittner, Glenn and Foster Absent: 1- Schroeder 4. HEARING OF VISITORS 5. UNFINISHED BUSINESS 2011-0060 Sherwood said that Ewald wanted the Commission to work on the code changes first; then the Rules of Procedure as it relates to the charter changes; Wadley, Ewald and I met to review the code changes and this is what we came up with; Ewald did say he wants everything that comes before the meeting/hearing to be in code, and then everything that happens during the meeting/hearing in the Rules of Procedure; after we finish both of those Wadley, Ewald and I will meet along with Jernigan and Cochran to see where we go with the Rules & Regulations. City of Gahanna Page 1 Civil Service Commission Meeting Minutes February 7, 2012 Leithart asked if there were any questions or concerns with proposed wording in 149.01. Sherwood said that is straight from the charter with the last sentence being added to cover contracting with public entities such as the school board. Foster asked why we need separate documents covering the same thing; has commission's powers and duties in charter. Sherwood said most code sections that cover boards and commissions do lay out powers and duties because some of them are not charter commissions, are not boards or commissions that are in the charter, and some of them elaborate further than what is in the charter, so it is better to repeat everything that is in the charter and then add to it. 149.02 no changes. 149.03 Leithart asked if it is in code how often we meet. Foster said it is in the Rules of Procedure; the first week of each month on the day established by the Commission at the organizational meeting. Sherwood said we will add "as necessary" to section 4.10 of the Rules of Procedure. 149.04 Leithart said the Rules & Regulations, as adopted by Council, will be kept on file with the Clerk of Council and the Director of HR; Sherwood said we wanted some kind of a trigger so that the Rules & Regulations would be evaluated every five years, in case we missed any state code changes can catch up at that point; kind of what we do with the Thoroughfare Plan and some other plans with Planning Commission. Leithart asked Bittner what he thinks of the next paragraph under 149.04 where it says the rules of evidence are adopted for guidance. Bittner said I thought it was an odd place to put it; thought it should be more on the lines of appeals because that would be evidentiary hearings that we would be talking about. Sherwood said are you talking about the beginning of 149.05. Bittner said somewhere in there. Leithart said I also wonder about the statement that the rules of evidence are adopted for guidance; is that typical language. Bittner said what is typical is that the rules of evidence are guidance and are not strictly applied in administrative hearings so there would be some discretion to allow evidence to develop for the record; it goes more to weight than it does to fitness and ability; is not a jury trial. Sherwood asked if there is another word you would like in there. Leithart said I will defer to Bittner because he works in this area a lot more than I do; if you think guidance is fine; it just seemed a little nebulous to me. Bittner said I think this is tracking the language out of the State; basically there is an extra sentence that says, "The rules of evidence shall not be strictly applied, but deference may be afforded to the rules of evidence"; if you are just piling on evidence such as from a newspaper, the newspaper said it is so it must be true; at the discretion of the Chair the Commission can say we need "actual evidence". Sherwood said I took that wording right out of your document but did not put that second sentence in; if you want it added I can do that. Leithart said I think that would be good to have; add in 149.05 before the Appellant's Requirements. Bittner said I would like to backtrack for a minute; in 149.02 it says municipality instead of City. Sherwood said we have been working on changing all of those; will change it to City. Bittner said also we should be consistent and have headers on each single section/paragraph that tell what is in it; title this one Rules of Evidence. Sherwood said the codifier will clean it up to fit into the code in our numbering system. Bittner said then 149.05 can be titled Parties, and that would be (A), and then Rules of Evidence would be (B) and Appellant's Requirements (C), and then renumber the rest. Leithart said in 149.05(A)(1) I am thinking that it should say "a copy of the notice of action appealed from"; it was agreed to change the wording to; "A copy of the action City of Gahanna Page 2 Civil Service Commission Meeting Minutes February 7, 2012 being appealed shall be attached to the Appeal". Glenn said should (3) say "appellant and/or agent" like (2) does. Sherwood said yes. (C) Filing and Transmittal of Appeals/Grievances; Leithart said we have been calling it appeals, but it is "appeals/grievances"; it was agreed to change this to appeal/grievance throughout the code. 149.05 (B) and (C) no changes except they will become; new (D) and (E) (D) Notification Procedures - change business days, to "calendar days." Leithart asked how long a time lapse should there be before we conduct a hearing; is that sufficient. Bittner said I think we talked about this in the sense that if we have regular scheduled meetings on a monthly basis that 20 days wouldn't put someone in a position where they would have to prepare and show up in 3 or 4 days. Sherwood said what my thinking was in preparing this is that they have 30 days to file; if they file the day after a meeting that gives us 10 days to get everything out and still be 20 days before the hearing. Leithart said so in about a month. (E) Title it "Continuances"; 1st line change can to "may"; change 14 days to 7 days. (F) no changes. (G) Leithart said it says "any person may represent himself or herself", does that include the City of Gahanna or the school district; are they persons. Bittner said if you look at the revised code I think that would probably be persons. Wadley said I read that as an appellant may represent himself or herself. Bittner said when would a person be appearing in a capacity other than as an appellant; could we change that to say "an appellant represent himself or herself". Foster asked if there should be a time frame that the appellant is required to notify that they will be represented by an attorney. Bittner said I don't think so. Foster said if the appellee is being represented by an attorney should the appellant have to have an attorney. Bittner said not required but at least have an opportunity to get one. Foster said we had the issue at the hearing. Wadley said I don't know if that was because they had an attorney, I got the impression it was because the law required it if there was going to be cross examination. In (G) change Any person to " An appellant"; add in each case attorney "and or agent"; add at the end of the second sentence, "Such notice shall be filed at least 14 days before the hearing." Glenn said Schroeder and I were puzzled at the hearing last month that the attorney wasn't there to represent the City; didn't understand that. Sherwood said it was partly a mix up on our part with the transition from one City attorney to another. Chief Murphy said the only issue I have this evening is that on page 7 of the minutes Moran said "I believe you have to have an attorney to ask questions in quasi judicial proceedings"; I have been doing this for 15 years and I can think of a whole bunch of cases where they didn't have an attorney and even if they did we didn't have one because we didn't need one; I can get specific in demotions and other proceedings where the union lawyer was there and we brought our attorney because we knew it was going to be a different type of fight; if you say we have to have an attorney every time someone complains that they did enough push ups or they only showed up a minute late; I think I can do a pretty good job representing the PD on issues. Leithart said first of all I think that was what I was telling you at the last hearing; second of all it has nothing to do with whether you are able to do it effectively or not; I couldn't remember any hearing I have ever been involved with Civil Service where either side asked questions of the other; both sides stood up and made a presentation and we City of Gahanna Page 3 Civil Service Commission Meeting Minutes February 7, 2012 asked questions; many of the hearings the appellant did not have counsel; he or she would make a statement; the City's representative would make a statement and there was no cross examination, and my ruling at the last hearing would have been that is entirely appropriate and had the hearing gone on and you wanted to make statements under oath that would have been entirely appropriate; what I didn't think was appropriate was that you couldn't cross examine their witnesses. I think what we are talking about in these rules, is that if our rules permit a legal entity like the City to represent itself through non lawyer representatives; if we make that rule then we can do that; so we should include that. Bittner said here is what the State says, this is from the State of Ohio Municipal Civil Service Commissions Guidelines for Conducting Employee Hearings; "Any person unless prohibited by law may represent himself; an employee may be represented by a person permitted to practice before the board who is not an attorney at law so long as the person is not receiving any compensation from the employee for such representation"; if you are an attorney you can charge your fees. Wadley said representing and cross examining are really two different things; and everyone agreed. Bittner said what it really boils down to is what would we like to have happen; if there was going to be a hearing and the appellant was going to have counsel represent him or her and we had a rule that said if you are going to have an attorney represent the party, they have to give notice of the appearance some time in advance; so that way if the City wants to have the City Attorney or somebody that he designates act as the attorney then that would be fair; if not then the party can come forward and represent himself and the City can come forward and represent the City, but there is not going to be the cross examinations going on; it would be I want to put these facts into the record. The only other thing I would throw out there for consideration is if that was okay would be what do we do with the unlikely scenario that a member of a collective bargaining unit wants to bring a matter to the CSC instead of going to arbitration; are we going to have that person cross examining witnesses; because in an arbitration, which is not an official proceeding, an arbitrator can make a ruling and anyone can ask questions. Glenn said is cross examination allowed or not. Bittner said the conclusion I can draw right now is that if the rules say it is, if we decide it is, we can do it; we can put in our rules that a non attorney can cross examine a witness. Glenn said I think we have to keep in mind what Chief Murphy has to deal with on a daily basis. Wadley said with regards to Bittner's question, I think the likelihood of a union bringing something to Civil Service is probably next to none. Murphy said I think they have to use the process in the contract which is grievance, Safety Director hearing and arbitration, and then they have choices if they are still not satisfied. Murphy said he can only think of one case that somehow deviated over here with the union and made it a Civil Service issue. Bittner said some collective bargaining agreements say that a member can choose to go to arbitration or go to whatever the municipalities ordinary dispute resolution process is, but you don't get to do both; once you pick one you are done. Wadley said you have to remember we are talking about more than just the FOP because the Steelworker's have a union contract too; sometimes the contract will say or other agreed remedy. Chief Murphy said if someone is going to lawyer up then we will lawyer up; if it is a point of labor issue with the union then we are going to bring in Mike Underwood and we are not going to come in unarmed without someone like Underwood representing us along with HR because we all work together. There are going to be times when we are dealing with people that are not in the union, that are trying to get on board or some that are not in a union that are employees, and they might want to come in and grieve to you; this has happened in the past and that is typically where HR steps in and lays everything out on a factual basis, but this cross examination I've seen, very City of Gahanna Page 4 Civil Service Commission Meeting Minutes February 7, 2012 few. Leithart said if you were at the hearing last month would you have liked to have the opportunity to cross examine. Murphy said from what my folks told me and reading the written word, if someone says you can't ask a question because you are not an attorney, really. Bittner said I think it was that you can't cross examine a witness as opposed to you can't ask a question. Sherwood said but isn't that when you could address a question to the Commission and then the Commission could ask. Leithart said yes they could. Chief said the way I read it was unless we have an attorney I can't ask a question. Leithart said if it is appropriate would you want the right to cross examine witnesses without an attorney; with last month's hearing would you like us to put in the rules that the City, and I don't have a problem putting that in the rules as long as we come to the conclusion that it is appropriate. Bittner said it is allowed; interpretation. Chief said from his discussion with Bell he was ready. Bittner said this seems like something we want to spend some time on to make sure it is right because the way I see this is if you are an appellant and you represent yourself then you are going to ask questions of the other side, whether the other side is lawyered up or not, so if the City hires a lawyer to represent them it is just like a pro se litigant or the pro se criminal defendant people are asking questions and it is really disorderly; but we wouldn't deny the appellant who says they want to ask a question; we are not going to say I'm sorry but you can't ask a question. Wadley said I agree, but if an individual doesn't feel they need to have an attorney or can't afford an attorney; I just don't want it to be too complicated for the average person to exercise their right for an appeal Leithart said under (G) we changed that to an appellant may represent himself or herself, which I think entails doing everything the hearing involves, including cross examining; the only question in my mind would be whether we need something specific that relates to the City that states that the City can represent itself or designate someone who is a non lawyer to represent it and fully participate in the hearing including cross examination of witnesses. Bittner said I think we could have something along the line of the State's rule that basically you can designate a representative, for the purposes of the hearing, that is a non attorney and that person would have the ability to represent the City at the hearing; would be up to the Chair to make sure they are not switching off in the middle; one representative, and if either side decides to get an attorney and there is notice of appearance, then there should be some time table prior to the hearing that the notice has to be provided so the other party can request a continuance to get their own attorney. Wadley said that being said we look back and say what is the timeline to file a continuance because you don't want to say you have to give that in ten days. Leithart said the notice of appearance should probably, at the latest, be the time you request the continuance or maybe a little earlier than that so that someone can get the notice of appearance; if an individual finds out the City is going to have counsel and they don't have counsel, they will say that they need another 30 days to get an attorney. Bittner said so the way that we have it set up now is that you can request a continuance at least 14 calendar days prior to the scheduled hearing but exceptions to this rule may be made prior at the discretion of the chair. Wadley said I would just like to talk through the timeline here; so if somebody files an appeal so at least 20 days is when notice will be sent out for the hearing; from that 20 business days we only have 6 days to decide if we are going to ask for a continuance, because the continuance has to be within 14 days, so talking through this so you have 2 days that fall on a weekend and a holiday follows during that week, now your 6 days have gone down to 2 and then it is trying to connect with either Ewald or outside counsel to even determine if a continuance is needed; is a very tight turn around. Bittner said then do we need to say that continuances need to be requested 7 calendar days prior to the hearing. Commission members agreed this is City of Gahanna Page 5 Civil Service Commission Meeting Minutes February 7, 2012 a really tight schedule and 7 days would be better. Bittner said let's go through the timeline again because I think that is a good exercise; so if we have a meeting today, which is the 7th the next meeting we would have would be March 6th, so if somebody got a letter tomorrow and they would have 30 days to file an appeal so that would be one day after the next meeting then we have to give at least 20 days notice of the hearing so that would most likely be the April meeting, because that is at least 20 days, and then that 14 day period starts to back out; so they would have roughly two weeks in that scenario to lawyer up or decide if they want a continuance. Leithart said they really have more time than that as they may be spending 30 days to decide if they want to lawyer up. Leithart asked if 20 days notice is enough. Sherwood said technically this says I have to give 20 days notice but if an appeal came in we would tell them right away; we just wouldn't be getting everything to them in writing the day it is filed; would email HR and the police or tell them verbally with paperwork forthcoming so they could start preparing immediately. Leithart said if we are not meeting on a regular basis, then at the organizational meeting we would set tentative dates for meetings. Sherwood said that with BZA they set aside the 1st and 4th Thursdays of the month as possible hearing dates as necessary. Wadley said if Sherwood notifies us that someone has filed an appeal then we find they have legal representation then that is a trigger point; when will they have to notify us. Bittner said collecting all these thoughts, 20 days before the date and time of the hearing, embedded in there that if either party hires legal counsel then the other side should be allowed to find their lawyer; also you can be represented through a designated non lawyer representative. Leithart said that the Chief would like the ability, at a hearing like we had last month, to cross examine the witness himself; are we going to treat the City that way but if an appellant wants to hire a non lawyer to cross examine City's witnesses then they can't do that. Bittner said the distinction is that that is the City acting on behalf of the City. Wadley said and the individual would be acting on behalf of himself. Bittner said yes. Leithart said an individual can cross examine pro se or through an attorney; the City can cross examine witnesses through an attorney or through its designated employee representative. It would have been nice at the last hearing to have a rule that said the City can cross examine. Leithart said so to clean this up we need a time frame for the notice of appearance and clarification on who can represent a party and cross examine witnesses at a hearing. Foster said so we were unable to change the continuance from 14 days to something like 7. Members said they think 7 makes more sense. Foster said and then 14 days would be a good time frame for notice of appearance. Leithart said I had 14. Sherwood said 20 days for notice of appearance leaving 14 for the continuance. Bittner said we can go with 30, 20, 14 and 7; 30 days to file the appeal, 20 days for notice of the hearing, 14 days on the notice of appearance of counsel and 7 days on the request for the continuance; and have the same kind of rule that says, "Exceptions to this rule may be made at the discretion of the Commission chair"; giving the Commission chair discretion outside of the hearing. Bittner said should we title this next paragraph Substitution of Parties (paragraph before (H); everyone agreed, and title (H) Rules of Procedure. Sherwood said she would also change it to appeal/grievance. (I) Leithart said who would have the burden of proof; so at the last hearing who would have the burden of proof; under this rule would it be the appellant or would it be the City, the proponent of the position that the candidate should be removed from the eligibility list was an appropriate step. Bittner said the State rule under the ORC says that the appointing authority bears the burden in those types of actions, such as removals. Leithart said that is what Moran was arguing at the last hearing. Bittner City of Gahanna Page 6 Civil Service Commission Meeting Minutes February 7, 2012 said that was the removal. Wadley said is it the removal from a position or removal from the list; that is removing someone from their employment. Bittner said so should we say that basically in disciplinary actions the City has the burden of proof and then in all other matters the proponent would be the appellant. Leithart said we had one hearing where the employee didn't like her employee evaluation; then I think she would bear the burden of proof because it was not disciplinary action. Chief Murphy said when we have a disciplinary hearing before the Safety Director we are bearing the burden of proof. Wadley said we should also add, the City has the burden of proof for actions involving discipline, suspension, demotion and termination; anything that is really a deprivation. Leithart said we should also add "In all other matters the appellant has the burden of proof". Bittner said the last sentence should say "proffered" instead of "offered". Wadley said I would like to request, and I don't know if it should be here or where, if individuals are bringing evidence to the Commission that there are enough copies provided, so that there is a copy for the employer. Foster said that is rule 7.15 of the Rules of Procedure, that 9 copies are to be provided. In the Rules of Procedure it also says that if a member of the Commission objects to an exhibit being entered into evidence the Commission shall put to a vote whether the exhibit is entered into the record or rejected by a majority vote; is that what it means in section (I) Standards, the last sentence. Leithart said no that would be evidence that the Commission has said is not admissible and then that party will put into the record what evidence would have been so if they ever take this on an appeal the reviewing court can look at that evidence and say the Commission was wrong they should have allowed that. J) It was agreed to add at the end of the first sentence, " or if the party is represented by counsel, upon counsel." Leithart said of course the clerk will make sure the appropriate people in the City get it. 149.10 It was agreed to change, in the second to last sentence, 14 days to "at least 7 days"; and add a sentence at the end of the paragraph that says; "Any party may request that the Commission issue a subpoena." Sherwood said l would like to take out that next paragraph on depositions; City Attorney was not in favor of the ideas of depositions; it was agreed to take the paragraph out; also take out the last paragraph. 149.20 Leithart said the only problem I have with this is shouldn't that rule apply to the party that has the burden of proof rather than the appellant; I don't think the City is going to fail to appear too often. Bittner said if there is a failure to appear by the party bearing the burden of proof the Commission can rule in favor of the other side. Sherwood said you want that changed to coordinate with the burden of proof, and the two attorneys said right. 149.25 Foster said this seemed to me like it eliminated the possibility of a settlement being reached during the hearing. Leithart said prior to a decision, like last time, in the middle of the hearing the matter was withdrawn; that was prior to us having made any decision; the hearing could be done and we just haven't made a decision yet and the parties could dissolve it or somebody could withdraw. Leithart said I think this is trying to take into account the possibility that in the middle of the hearing the parties announce they have resolved this and then 14 days later nothing has been filed with the Commission; what sometimes happens is when you think there is a settlement it has broken down for one reason or another; what the rule is saying is that if we don't get a notice of the settlement or withdrawal within 14 days, and we haven't finished the hearing then we are going to reschedule it. Sherwood said if they stated it during a meeting then it will be on the record; shall be filed in writing, period. Bittner said City of Gahanna Page 7 Civil Service Commission Meeting Minutes February 7, 2012 "shall be made at the hearing on the record or filed in writing with the Commission". 149.21 Leithart said we want to get a time frame; it was agreed to add "The decision shall be made within 60 days of the completion of the hearing." Leithart said so these revisions will be ready for out next meeting; Sherwood said yes, and once I get these in place if I notice anything that would change in the Rules of Procedure I will go ahead and make those changes too. 2011-0066 See discussion above. 2011-0064 6. NEW BUSINESS 7. CORRESPONDENCE AND ACTIONS Bittner said he received an email from Mike Moran after the hearing with possible ideas for rules to share; he said he emailed them to Leithart too. Leithart said I did not receive them and related that the email address Moran used is about 10 to 12 years old. Bittner said he would email the information to Leithart and the Commission and clerk. 8. OFFICIAL REPORTS a. Director of Human Resources Update on the Police Department Hiring Process Wadley said she wanted to update the Commission on the police hiring process; the Commission certified the eligibility list in October; they did backgrounds on the first 25; went through the screening process sent 7 candidates to the oral board and we have made conditional offers of employment to two candidates and they have conditionally accepted; they still have the psychological test and the doctor's physical; we do have one officer retiring and one who has been on workers comp for over a year and the likelihood of them coming back is very small. It was asked who was retiring and Chief Murphy said Norm Monroe probably in June. Wadley said we are currently working with the next 25 candidates to have an active list in case there are any additional openings. Withdrawal of Name from Police Officer Eligibility List There was discussion about police officer candidate Chad Caldwell withdrawing his name from the police officer eligibility list. Bittner said it was short and sweet and no other information. Leithart said with the expert witness from the hearing, in the materials he presented, the polygraph test can be an indicator of deception but in and of itself should not be a disqualifying factor to remove someone from the employment process. Leithart said to Murphy I am wondering if you are reacting to that in any way City of Gahanna Page 8 Civil Service Commission Meeting Minutes February 7, 2012 as a department. Murphy said if the polygraph examiner picks up deception and in the conversation afterwards gets the individual to confess to something by his own admission you are out of the process; but if there is deception and he won't give it up we will keep going, but it is going to put up a red flag for us, and honestly if you have ever seen one of our oral boards we will make them sweat; if we are just not comfortable with a candidate we are not going to hire them. Leithart said to some extent Mr. Moran did us a service, and everyone agreed. Bittner said from what was presented there was a lot in there from my perspective; I did not know anything suggested standards for the use of the polygraph test in the pre hire process; not be sole disqualifier; that was educational to me. Murphy said we are in the profession where we have after action reviews after everything and whatever improves the process we are happy with. Commission members thanked Sherwood for her work on the code. b. Chairman 9. POLL COMMISSION FOR COMMENT 10. ADJOURNMENT: 8:15 p.m., Motion by Glenn. City of Gahanna Page 9