The URL can be used to link to this page

Home My WebLink About5.c. David Bechthold Grievance Ciry of Rosemount Executive Summary For Action CITY COLTNCII, MEETING DATE: AUGUST 16, 1994 . AGENDA ITEM: DAVID BECHTOLD GRIEVANCE AGENDA SECTION; OLD BUSINESS PREPARED BY: Thomas D. Burt, City Administra.tor AGEND � � ATTACffiVIENTS: MEMORANDUM FROM CITY APPROVED BY: ATTORNEY The City Attorney has written opinions on each of the claims made by Mr. Bechtold. The City Council should consider if the reorganization was valid and are any of Mr. Bechtold's claims valid. If the City Council determines that there were no violations of city code, veterans preference, age discrimination and personnel policy violations the Council should respond to each claim and direct the City Attorney to identify the findings of fact and decision for City Council decisiom at the September 6, 1994 Council meeting. Recommended Action: MOTION to direct city attorney to identify the findings of fact. Council Action: AUG 10 '94 10�35 HOLMES & GRAVEN P.2 � r lrl�'"_�.LA1�111,11.�t1�t . T�: Mayor �nd Members o£ th� Rasern.ount City Council �RUM: Charlie LeFevere DATE: August lU, 199A. �E, Crrievance Proceeding of D��vid Bechtol� Fallawin� the grievance proceeding of f�rmer ernplayee Aavid Be�htald on August l, 1994, the city council requested my camm�nt on �variaus legal issues ra3.sed by Mx. Bechtald's �,Ltarney. T will address the issues as 1 s�e them in response to each of the seven objections � raised by Mr. �echtold's attaxney. I. VIOLATTON OP CTTY CODT TITLE TWO,CHA}�'I'ER 2,SE�ONS 4A AND B. Sectian 2-2-4 of the City Code deals w�th the powers and duties af the park a.nd recreaaon �a�tt�. ��"y,�,an A deals with advice and recornmendatians and grovides that the commi,ttee sha11 have the duty of mal�in� reeommendatians and supervising the city recreatian system and rnaking recommendac�ons as to an�r matters relatin$to the Pa�k as�d F��tian system � af the ci�r. �aragraph�provides that the cornmittee shall la.ave the fuil pow�,r and responsibilit�r to in�vestigate r�quirements and needs of the city park and recreation syst�rn and t� assist the c�uncil in farmulating th� tern�s of and the procedure far accamplishin� that goal. 'Whether questions of rearganizi.ng cit�r deparun�nts,discontinuing ernployrnent positions, o,r other administ��ti�ve or employment issu�s of city staff were inr�endecl to be covered by these provisions, watrld depend upon the interpretation af the language dealing�crith sul�rvYsion of the city's "�reereatian system". It se�ms to me tt►at Lhe 1an.guag� of the ordi�t�.nc� el�arly covexs the park.and recreation physical plant as vcrell as prog�ams. Hawe�rer, it vvouid be very unt�sual for a cit�►'s park cammittee or commission ta involve itself in administrative personnei matters. Y ha�ve not had any experi�nce in an� city �where the rale of the parlc and recreation camrraittee in�cluded r�view, cansid�ration, or ad�rice on such n�atters. In any case, it is my opinion that failure to consul.t with the carnmittee does not rnalce either the rearg�nization or the employe.e sele�:tion unla�ful. That is not to say that the counG�l m�y not consult with th;e park and recreation cornmittee if it vvishes to do so, although, as nated above, seekin�the advice �nnd counsel of a,n advisory' cor�unittee oa personnel rnatters�would be very unusu�.l. ; c�L7e�z3 1 �sais-�z ��^ AUG 10 '94 10�36 HOLMES & GRAVEN P.3 ' II. V'IQLATION �F 'THE ST'ATE 4PEN N1E,ET�IG LAW. Mr. Bechtc�ld°s attorney asserted that the eity vialated. the state apeth� fact that�Mr. Niinnesota,Statutes, � 471.705. As evidence af such a violauan, he poxnted ta �echtald vvas given notice of his 1ay-off the day before the council a,c�;d �ntt t�o sta.bl h pasitian. I believe that a cotjrt wo�uld z�at conclude th�t suc�evidence�vas sr�f . a violau�n af the op�n meecing law. 'The city adminisrratar did ssate that he had tallced to a1l council mernbers about t1�e reor�anization, and believed that he was conectly anticipating their rrate. Th� counci� and the administrator shauld be cautio�xs abaut a series of ineetings between the admini$�tor and individ�al caaneiimembers. For ex,ample, if the admGini.st�ator or the cat�ncilmemi�ers used s�ch a pracedure to attempt to farge a consensus befoxe an 4pen pubiic meeting or to us� the �ministrator as a go-b�tw��n to �2�cilitate impropex camrn�ications betw�en coun�ilmemb�rs, a court might very well conclude that the op�n meeting had been violated. Hawe�v�r, the administrator stated ttYat the natuxe of his communkcation �rith councilmembers �vvas simply to cliscuss each c�uncilmember's prefexence before reor�anizat�on and that he did not attempt ta comrnur�icate any one counc�lmemlxr's vi�ws to anather ar ta arrazige far �ny predetarrni.ned resul.t when the matter �uvas decided by the city council s�t an open meetir►g. �. am aware af no case in which the couxts have ruled that an apen meeting la,�v violation occurred nnerely beca�se ane non-counci�rnember discussed an issue individually with all co��ilrnembears. Ther�fore, wherher an open meeeting 3.aw �iolatian occurred woul.d depend an th� e�cact nature of can�versatians between the administratar and cauncilmembers. � da not believe that it is necessary far the city council ta resolve this issue as a part of the Bechtold grievance pracess. In Minnesota, the open rneeting law specif'ies sanctions for apen meeting law violatiQns including fines, injunction, attarney fees, rernoval from o€fice, etc. However, the sanctions Iisted in the l�vu� do not incl�rde inrralidation of actian talcen by the cit�► counci�. In this case,the action of the city council to eiiminate 7VIr.�ech�ld's position wa�tak�n � at an apen public meeting. Even if a violat�on had c�ccurred, it would ha�re occ�tured b+�fore the meeting. Therefore,the question would be�vhether an alleged�violation occurring before an open re public meeting in�validatec� t�e action taken at the open meeti.ng. E�ven if it were �sumed that there vvas a �violation af the open me�ting la�uv, it does not necessarily follow that the city is forever prerrented fiom taking actian an .a matt�r wtuch was discussed out�ide of an open meeting. If action�vvere taken at a clased meeting, a caurt might order that matter to be referred t' ba�k to the city caancil for consideratic�n an�d actian at an apen public rneeting. Hawever,wh�r'e action �ras taken at an open meean�, I do not �Iieve a caurt would in�validate that acti�n even if it found that the action �as preceded by one or mcyre closed m�eetings• I7I, 'V'IOLA'I'IONS QF THE VE'I'ER.ANS F12EFETtEN�� AG�'. The attome� for Mr. Sechtold alleged that the city rriolat�d the Veteran�s Preference Act by failing to give prop�r notice of Uis lay-off, claiming an entitiem�nt ta 60-days notice of right � to a veterans pre:ferrnce hearing. CLG74333 � R5215-i2 �� AUG 10 '94 10��6 HOLMES & GRAVEN P.4 In evaluating the effect af �lie VeCerans �'xeferer�ce Act, the fixst iSsu� is whethex 1VI�. Bechtold is enatted to the protection afforded by the act. The Act spec'xf�ically e7ccludes fram its . pravisians any ��head of a department". If Mr.Bechtold Was the head of a depart�x�ent withiu the meaning of the act 'he is ndt en�itled ta the protection afforded by �of a d artment rw'ithin the In order to detemune whether Mr. Bechtold s posidon was the head �P me�rting vf the a�ct, it is not suf�cient merely ta note that his position title vvas that of a, departnnent head. 'The courts have sta.t�d a number of criteria wluch they �avi�l cons�der in det;i.ding v�rhether a person is a department head. These factors wex� listed in the case af S� ex rel. McCrinnis v, Civi1 Service Cornmission of Csoldcn jTalle (Ivtinn. I95$) 91 N.W. 2d 1S4 . as follows: (1) Does tl�e alleged d�pa�rnent head have charge of the vc►ork dane 6Y his department? (2) Does his work require technical, professional uainin�? (3) Zs he the highest a�zthority at that 1eve1 of �overnment as ta his off'lcial duties? (4) �aes he supervise aU af the woxk in his depa�tment? ' (5} Does the success of his department depend on his tech�iy,ue? (6} Are the emplo�ees in the department ander his dixection? (7) Are lus duties more than merely different fram other emplayees? (8} �oes he hav� pawer to hire and fre subordinaees? It is not necessary to meet all af the thes�tests in order ta 4uaUfY as a department head, For example, a I�alice chief has been faund ta be a deparunent head natv�rithstanding d��,irin�� rhe ,civil secrvice commission has exclusive jurisdiction in matt�ers of police hiring an g It se�ms ta me £rom the informatian provid�d b� the city administrator at the gri.evance hearinp that the city c�n present$ver�y' goad case that lvir.Bechtald occupied a depaztment hesd gositi.on. Howe+�ear, there are legal lim�tations in the por�vers of any dep�rttnent head in a plaa A statutory city, aand there is not a great deal of legal parecedeut ta gtude us in anti�ipating a - caurt's view of the status af a department head'other than a palice chief in a Min.nesata. city. � �f the city connal conc�udes that Mr. Bechtold was a department head, it see� ta m�e that there is a better than even chance that a court would agree with that detemii.nation. As noted abov�, if Mr. Bechtold was a d�partment heafl, he is not entitled to the psotectiar► af the Veterans Preference Ac�. Ev�n if the cauncil conclu�des that Mr. �echtolcl was nat �.d�partment head, it does not necessarily �ollow that the city vialated the Veterans Preference Act. The Veterans Preference :� Act requir�s fl hearing for a disch�rge in the case bf incompetency or xniscanduct of 3n empToyee. �Iowav�r, Mr. Bechtold wa�s not discharged for disciplinc�ry re�Sons. Rattl�x, he was laid-off by CLI.�6323 � R�215-12 AUG 10 '94 10�37 HOLMES & GRAVEN P.5 i ' tion and discananuance of his position. In this case, thes� is na heari.ng reason of a r�or�ani�a : required. The courts have held that the Vetexans Fref�renee Act cloes not pxevent the city from m,ak�ng a bona fide adminisuative decision to t�emainate a position. However, a persan ma.� challenga a l�y-off b�sed on discantinuance of a position by sl�awing that the discontinuance was a cawrt eould rule tl�a.t the not a bona �de elimulatian of the position. For ex�.mple, a discontinuance of a po�ition w�s � sh�n to �xrnin�te a v+�tesan and that the �osi#idn�� f tlie continued ta exist vcrith �.nother ernployee performing the job duties farm�rly perform y veteran. For th�.s reason,'it is apgropriate far the city cauncil ta conside�'Whe��.��h�Q�'S position Was terminated�s a part of A bona fxde reorganization and discontinuance af the position. : If the counci� decides that the pasition was nat eliminated iu� gaod faith, ,then ivix, Be�htold cannvt be discharged exc�pt for miscanduct (unless,he is �department head in which case he has no such protection). Tf the council determines that there was �good faith elimination of the position as a part af a reorganizatian p1an, that decision c�►n be challenge� h� l�tr, �echtoid. Yn case af such lay-offs, the caurts have ruled that the 60-day t�ouce pxavision ddes a 1 - however, it is not a b0 day nat�ce of a veterans pr�ference type hearing. Rather, if the PA Y• ; city coua�cil de�es that the position vaas eliminated in a gaod faith depa�tmental reox�aniz,ation, the cit�r should give Mr. Bechtold natice that he has fi0 days to challenge that deca.sion by br�nging an actian in district cour�. �V. VIOLATIUN OF FED�RAL AND STATE AGE DYSCRIMINATI4Ir� LAWS. Mr. Bechtald's attorney has all�ged that the city violated state and federal anti- discriminatian laws by appoindng lbix. Jim Topitzhofer ta the new department head pas�tian created in the rearganizarion. �vtr. Fri�dman asserted that Mr. 'Y'opiszhofer was 38 years old and Mr. Bechtold was 48. In this case, batt� af the forme�r departm�nt head positians v�r�re eliminat�d, and a new department h�a,�pasition was creat�d. Teclani.cally, th� pasitions of bath Mr. Tapitzhofer and Mr. Bechtca3�d�vere elimin�Ced in the reargani�tion. Therefore, the question is whether the city violated a�e discr3mination law� by appointing Mr. Topit�hofer ta the nerx position. The ag� discrimination laws da nat re�uire that positians be c�ffered to the alder of twa � applicants. �ather, the questian is whether the city had l�gitimate, non-di.scriminatory resson� for offering the position to a yaunger candi.date, i�. this case, to Mr. Tapitzhofer. Therefare, the quest�an far the council to causider is rz�hether the city had Zegitin�te,non-discrirnin�tory xeas�ns far offerin.g the position ta Mr. Topitxhofer, other than age. If the city can establish that thera were bana fide business and persaunel justifica�.ons far offering the pasition to Mr. Tapitzhufer, and those justif'ication.s are not a merely pxetext far age discrirninatian, na �vialadon of tl�.e state of £ederal age discriminatian l�.�cws has accurrGd. ; V. VIC�Y.AT€ON aF CITY pETtSt,�NNEL PULTCX, S�C'TTU�I I. � Nir. Bechtoid's �ttorney alleged t�at the city vialated Secrian � of the cit�'s personnel � po1 icy_ Secti.on I states as the purpose of khe pc�Iicy"to establish a uniform and eq,uixable system of municipol personn�l administration for all. employees of the city af Rosemowa.t". Ir� my CLL74323 4 Rs215-12 . AUG 10 '94 10�38 HOLMES & 6RAVEN P.6 � o inian, this is nat a substantial claim. Sectian I is mexely a statement of the pu�pose of the A tz personrtel palicy. I do ndt believ� thaL a CCurt woUld ConrOCa 5 wva5 not onsistentavvit�ti the , personnel policy merely because the empldyee selecuon p purpose clause of the policy unless there were ather vialations of subst�antiwe provi�:ons af the policy. Thexefare, in my opini,on, the�cit^y council should focus an those other provisians of the personr�el palicy �vtuch Mr. Bechtald s actoxney alleged w�re violated. �7I. VYOLATiC?N �� CITY P�RSONN�L, POLICY, SECTIQl�' IV• ' ersonnel alic rovides in part that "all aPP°xn�n� ..• t° Section !V af Che city's p P Y P municipal service sha11 be made by the Ci.t�► Council on the basis Qf � lic�af the city�to witl��ut regard to race, cr�ed, colar, or discriminadon. It shall be th pa Y prornote existing quali£'ied employees zather than hire new emplayees." Mr. Bechtold's attorney alte es that the appoinunent procedure vvhich resulted in the s�l��on af Myr.Topitzhafer violaied � this section. �t seems ta me that�s provision a£th�personnel policy is laxgely self explanatvxy. 'I'!le question for the cit�r council to consi.der is whether th� appaintment af Mr. Topitzhofer was in fact made on the basis of inerit and fitness for the new dep�rnn�nt h.�ad Position and was not rna,de on the basis af unl�:v�ful discriminF,tian. VII. VYaI.A'YZQl�' OF CITY PER54N1�E� POLICY, SECTYON XX�. � Mr. Bechtold's ait4rney a1Ieg8S that the City vXOlated SeCtion X?�I O�th� Gity perSbnii�l policy xelatin�to 1a�-offs. Se�tson XXI�uthorixes the city to l�y-off an emplayee whe�never such action is made necessa�y by re�son of abolition of a pasit�on or because af changes in : rnr�anization, provided tvvo weelss ad�vance writCen natice is given. The policy goes on ta state that "ho�w�ver, no permanent �mplayee shall be laid-off while there a�'e temparary pxavisional or probatianary ernplayees servu►g in the same class of posit�ons �ar which the permanent employee is qualified, eligible, and a�vailable. L,ength of service in the same positian shall b� given cansideraCion.° '1'he �'�rst Xssne relating to this pravision is whether length of service was given consideration. The provision of the personziel policy quat�d above does nat requi�e that the mt�st senior persan be given a positian. Rather it r�equires that length af ser'vice be considered. Therefore, the issue fox the cicy council to deterrnine is vvhether Mr. Bechtold's length bf SeTvlCe w� �v8n coriSideratiOn iil its Cl�ci5iOn. If length of service was taken into consideration, and a dec:ysion was made ta hire Mr. Topitzhofer notwithstanding the relative length of sesvice af the two candi.dates, she citp wauld not be in vi�lati�n of thxs pravision. `� The second issue relating ta Sectian �I is wheth�r Mr. Bechtold was given tv�ro we�ks � advance written natiee of his lay-off. 7t is my understanding that the original natir.e af lay-off was given ta Mr. Bechtold on rune 6, 19�4. 'rhat notiae sta.ted that 7�� 1"1th would be his last day. The actuar actian by the city co�c.z! �vas taken an sune 7, 1994. � A numt+�r of arguments can be ma,de that t�e city did not comply wzth the tw'o week notice grovision of Section XXI. 'I'he first is th.at the natice was not effective vcrhen given because the council had not yet acted ta t:�rminate the position. Xf so, sorne later da�te wo�ld mazk the beginn,in� date from '�vhich the two week period ruould run. Argu2tbl� this could tae CLL7�323 � Rs21S-12 � flUG 1� '94 10�39 HOLMES & 6RAVEN P.7 I 3une 7th since �v1r. Ae�hwld would have actu�l natice o� the action taken by the �it� co�uncil since, I believe, he was present at that m�eting. l�lternatively, in a letter dated 3�.ne 14, 3994 fram Mr.Bechtold ta the city admi�istratc►r, t►e refers to a w�t:tten rnemcarandum pertaining to the 1a�r-off which �e received on June 13, 19��. . The secand argument is that th� twa weeks natice prov�►sians refexs to calenda� weeks rather than working w�e�s. The lay-off natice was gi�ren on Mondap, June 6, and the n�tice state� tha� Ivtx. �echtold°s iast working day would be Frida�, �un� 17th. Therefore, twa �uveeks . notice was gi�+en only if the policy is interpreted to mean vvorking vcreeks. The third arg�;nt is that the tWo weeks time periad was nat properly counted. In many situations, the �eneral rules of interQretation i.nval�ving computaaon af time provide that the date an actian is taken is nc+t coanterl in calculati.ng th� p�riod of tiine b�t that rhe effective date is. Under this analysis, Jane bth would not be counted, but 3une 17th would. Therefare, only nine v�rorlcir�g days vvere included from the tim� tha no�ice vvas given untal the termination w2►s affecta�ve. I have been infarmed that it has been the city's practice in o�lier person�el situations to interpret noCice provisians to include bath Yhe first and last day and to coxtnt warking, �ather than calendar, �veeks. Therefare the procedure fol�owed in this case was at least cansistent ruith � past administrative incerpxeta,don of the code. This past practice may be helpful if it becbmes necessary to defend the city's natice of �ay-aff given to Mr. Beehtoid. � ��is to oncl de possible way to interpret the ac�.an ta.ken b�the city as having given praper na � ihat i) the natice was ef£ective when given on June 6tt►, 2) tl�at t�►e ordinan�e refers tc� �ur�rking weeks rdther tha� calendar weeks, and 3) that both the first and l.�st da�rs are car�nted in CalCulatin�; th� Lwo vcreek peria�l. Therefore, it se+em�ta me, that good arguments can be made that the city did not comply with the two v�reeks nvtice pro�vision af Section �XI of the p�licy. Hovcrev�r, if it �s concl�ed that the city di�l not comply with this provisian,that does not necessarily m�an 1�at Mr.Bechtald is enp.tled to reinstatement. If a coart concluded that the tvs+o weeks nauce was not praperly given, it would have to determine the appropriate remedy. Xt seems ta me that the most Iikely outcame in such a case �vould be that the court would award additianal campensation to Mr. Bechtald so that the totai amount of compensation �vas at least eq.ual to the amoutnt he wotrld : have received if proper notice were given. In this case, the city courlcil decided to provide to . Mr. Bechtoid severance pay in the amau�nt of �4,141.b0. I believe t�►at it is very questionable whether the city had the 1ega1 authority w gta�ride for s�.ch severance p�y. � the avv�rd af sev�rance pay was n�t legally authorized, the cit�ma�r be entitled ta recaver se�verar►ce pa�fronn 1V�r. Bechtold. In any case, the amount of severance pay would se�m ta be rnore than adequate . to compensate Mr. �echtold in the event a c:o�rt concludes that twa weeks notice was n�t properly give� as pr4vided in section� o£ the policy. CLL74323 � Fts215-12