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MUSKEGON BOARD OF CIVIL SERVICE COMMISSIONERS Regular Meeting Minutes Tuesday, February 19, 2013 4:00 p.m. City Hall, Room 203 ************************************************************************************ I. CALL TO ORDER The meeting was called to order by Commissioner David-George Newsome at 4:04 p.m. Also present were Commissioner Norman Cunningham, Commissioner David Wendtland, and Deborah Groeneveld, Human Resources Director. Also present were Jeff Lewis, LeighAnn Archer, Ron Archer, Mark Taylor, Terees Williams, Lowell Kirksey, Jr., Willie German, and Bryon Mazade. II. MINUTES The minutes of the November 8, 2012 regular Civil Service Commission meeting were reviewed. Motion was made by David Wendtland and seconded by Norman Cunningham to approve the regular minutes of the November 8, 2012 meeting. Motion Carried. III. ACTION AGENDA A. Discussion on Rules and Regulations – appeal body v acting day-to- day body. David Wendtland talked to the City Manager about proceeding with working with City Attorney. The City Attorney will be at the April 2013 meeting. B. Public Utilities Supervisor Job Description. Deborah Groeneveld went over the request from the Public Works Department to change the job description for the Public Utilities Supervisor to add: is to coordinate the City’s cross connection control program which is a requirement from the Department of Environmental Quality for ground water contamination. This is a program that the Supervisor would be in charge of keeping the records and making appointments to check for devices within the City water systems when they are connected with non-potable water. An example of that would be if there is a well and a City water connection on the same property. Public Works anticipates a vacancy and they want to get this added to the job spec. Norman Cunningham asked about the channel of review, and Bryon Mazade responded that there will be a retirement and that will open up this non-union position classification. There was no need for review from union. Bryon said his office approved and then sent to Human Resources office. Motion was made by David Wendtland and seconded by Norman Cunningham to approve the Public Utilities Supervisor Job Description change. Motion Carried. C. Lowell Kirksey, Jr. Appeal. Lowell Kirksey presented his appeal. On September 10, 2010 Lowell was laid off as the Recreation Supervisor, at that time he was given a notice of layoff. Lowell handed out the request he made on January 8, 2013 concerning the request to be heard and also the layoff guidelines. Lowell stated that his job description was never changed to Recreation Marina Supervisor. In the layoff notice it stated that Lowell’s bumping rights are within his classification. Lowell was then given a list of positions he could bump into. He was classified as a non-represented employee. At the time he received the letter from Deborah Groeneveld, Lowell noticed that the job description was a union position. He also noticed that the election form had only two options. He came to the office to see Deborah Groeneveld and Brenda Kota told him she was not available. Brenda signed Lowell’s letter as received and gave to Deborah. Lowell said he did not receive a call from Deborah for several weeks. He felt he was not qualified for the position offered. He stated that the City had hired two previous workers as the Water Plant Operator in 2011 and 2012. Lowell said if he is laid off, he should have been called back before these two individuals were even hired. Lowell said he turned in the election form because it only gave him two options: to be considered for the job, or resign. The previous election forms gave the laid off individuals the option to take a voluntary layoff by not exercising his bumping rights. This option would limit his recall rights to the classification from which he was laid off. Lowell was offered to apply for the Administrative Secretary (Police) and he said this was a union position. Lowell asked Deborah if the decision was based on the fact it was a union position because if it was, it was the wrong decision. 2 Lowell also stated that as a non-represented employee the recall rights state that you can only bump within your classified or bargaining union, and unrepresented employees can only bump in their classification. Lowell said that Deborah stated that she would get back to him. Lowell then received a letter telling him to show up for a psychological evaluation and had to by a certain date. Lowell called Dr. Lamson and told him that he had another engagement on the appointment date. He also explained to the doctor he had concerns that he was an unrepresented employee applying for a job that is a union job. Lowell doesn’t want to get caught in an argument or a fight with the union. He doesn’t understand why he was offered the job. Lowell said that Dr. Lamson told him that he too did not want to get caught up in the middle of a legal question and he doesn’t want to see Lowell until this matter was settled. Lowell said he would be willing to see Dr. Lamson, if he was within the guidelines and not a violation. Lowell said this is why he didn’t keep the appointment. Lowell talked about the bumping procedures from the guidelines on the layoff recall. Lowell said it states “bumping rights are confined to respective bargaining units which represent employees. Employees who are not represented shall bump only into non-represented positions.” This is what Lowell understood about the whole process. Lowell has been through a Civil rights challenge with the City and he feels that this is nothing more than retaliation. Lowell asked the question, if two positions have been offered and he has recall rights, shouldn’t if he was qualified for this position or considered for the position, shouldn’t he have been called back then? Lowell doesn’t understand why he was offered the union position and why his options went from four options down to two. Lowell thinks that after looking at the guidelines, he shouldn’t have been eligible for the job. Lowell thinks that the rules have changed because he has been through the system so many times before. Lowell said his resume is over 20 years old and should be updated. Lowell said that his old resume was looked at and that is why he was considered for the position. He said that his experience does not match with the job description of the Water Plant Operator. Lowell feels that he is being forced into taking something. He said that if he takes this low paying job, he will be starting out at low seniority and he will be required to get another certification for this position. He states that he is already certified as a recreation professional and he said he qualified for an administrative secretary. He wants to be recalled back into these fields because of his experience. He doesn’t want to have to go through another probationary period. He states that the job description shows that you have to have biology, chemistry, and calculus. He only has the basics from high school and his degree never required math. He wants to know why they came up with the decision to offer him the Water Plant Operator position. He thinks he should be able to deny this job and still be on the recall list with voluntary layoff. 3 Deborah Groeneveld responded that the position that was offered Mr. Lowell Kirksey, Jr. had been offered to union applicants. We did not receive any union applications. So as an effort to offer employment to Mr. Kirksey, since he has been laid off since September 10, 2010, his resume and his application on file were reviewed and found that he had some mechanical manufacturing experience when he worked at Howmet and Meridian. In discussions with the Public Works Director, it was decided that his experience did qualify him to offer him an opportunity to get back to work. He was given that opportunity for recall on November 15, 2012, and Deborah had spoken with him on a number of occasions about the situation. On November 23, 2012, he returned his election form that is in his file signed by him saying he wished to be recalled to this position. We had already determined that he was qualified so when he returned his election form that he wanted to be recalled, Deborah took steps to set him up for a required psychological exam with Dr. Lamson. Deborah was informed by Dr. Lamson that Mr. Kirksey had cancelled his appointment on January 4, 2013, and did not reschedule. Mr. Kirksey told Dr. Lamson he had a hearing scheduled and he couldn’t come to another appointment. Dr. Lamson stated that he did not say that he did not want to see Mr. Kirksey. After Mr. Kirksey cancelled his appointment, Mr. Kirksey was sent a letter terminating his recall rights because he did not comply with the directions he was given to take steps to return to work. Bryon Mazade said that the difference in what Mr. Kirksey had to say about what has occurred is Mr. Kirksey has been off since September 10, 2010, and at the time he was laid off he was given certain rights or options to bump. The situation that occurs now is that as positions come available he is provided an opportunity to return to work from layoff or recall which is different than bumping. He continues to use the word bumping, but we are at a situation now where he has an opportunity to be recalled to certain positions and not have to bump. Bryon said he would agree with his analogy that he had certain limitations to bump into certain classifications that might be union as a non-represented employee that however changes. Bryon also went on to say this is not the only position that Mr. Kirksey has been recalled. He received a similar notice for another position which he did not meet the qualifications and then as such he remained on the recall list. Bryon went on to say that it is kind of ironic that we have a person who’s been laid off for two and half years and has been provided an opportunity to come back to work and is spending a lot of time and effort trying to convince the commission that he shouldn’t come back to work. David Wendtland said that there is a lot to look over and would like some time to review the file. David asked Deborah about the 4 statement that Dr. Lamson did not indicate that he had told Mr. Kirksey he did not want to see him, was that verbal or was that in writing? Deborah responded that is was verbal during their telephone conversation. Deborah asked the doctor if Mr. Kirksey had rescheduled and he responded that Mr. Kirksey did not want to reschedule. Deborah went on to say that if he had rescheduled his appointment, then she would have waited for that to happen. David-George Newsome asked have we recalled non-represented employees to union positions prior to this. Deborah stated that she is fairly new to this recall. Byron was not sure, but if that had occurred, it would have been very sparingly. Mr. Kirksey rebutted with back on August and October of 2009 there was an extensive conversation before the Civil Service Commission concerning unrepresented employees and the bumping procedure. In that discussion, it all focused on unrepresented employees and what their rights were within their classification. At that time, a question was raised as to whether to limit the bumping procedures for unrepresented employees. It was pulled off the table after several employees with long-term employment with the City in limited classifications or jobs would have lost their job, if the proposal was accepted and that was at the August 6, 2009 and October 1, 2009 meetings. Mr. Kirksey thinks it is clear that the guidelines states what position he is able to bump into. In the layoff procedures that he handed out, it states that the represented units and non-represented employees are to bump within their classification. It furthers to go on to state that as a laid off person Mr. Kirksey should be on the list for five years. David-George said what they are going to do is get the information from the Director, as it relates to their decision. Norman Cunningham has a question, would the consequences of not accepting a job in a union position when you are a non-union employee be the same as not accepting a position within a non- represented position? The City offered Mr. Kirksey a job that they would not normally offer had there been anybody else available is a little bit of a gray area. What are the consequences of him not going to the doctor or not accepting that position because it is not a normal way of doing things? Is there any precedence for it? David Wendtland commented that what the City Manager made about an individual ability to bump versus a recall is something we need to go through because one is the initiative of the employee and the other is the initiative of the City. It sounds like it is the employee who was interested in bumping at the time of layoff, then didn’t feel he could 5 bump. It was not a bump, but in fact it was a recall that the City initiated that then Mr. Kirksey turned down. He asked if this was what the City Manager, Bryon Mazade, understood? Bryon stated that Mr. Kirksey didn’t turn it down, as Mr. Kirksey stated he had two options one was to resign and not to accept the position, and then as a result not be subject to recall. The other option was to accept the position subject to meeting qualifications and that is the box Mr. Kirksey checked. Then the personnel department went through the process of determining if he was qualified. David-George Newsome would like to review the 2009 minutes. Willie German asked Mr. Kirksey how long has he been off work? Mr. Kirksey stated since September 10, 2010. Willie then asked, there were two employees hired since then within the City of Muskegon for that position? Mr. Kirksey answered, yes. Willie asked, were you ever considered at all? Mr. Kirksey said no. Willie asked, who would be responsible for offering Mr. Kirksey that position, and was you qualified for that position? Mr. Kirksey stated apparently they didn’t think I was then. It was the same job. David-George said, there were no persons who either wanted the position or who applied for the position, they had no candidates for this current offering, and therefore, it was offered to Mr. Kirksey after reviewing his work at Meridian and Howmet. Mr. Kirksey said that the confusing part to him is what’s the difference? If a person is on a laid off status and you have a position open, they should be considered for recall at that point. Mr. Kirksey was not recalled so what was the factor of why he wasn’t recalled? Mr. Kirksey feels that working in a manufacturing environment 20 some years ago doesn’t make him qualified according to the job description. The description on his resume is very limited so Mr. Kirksey doesn’t know how they can say he has a background in biology, calculus and other areas that is not there. Lowell continues to say, it isn’t that he doesn’t want a job. It is that if we are trying to improve our selection of employees, and if you put an employee who does not have that background, are those requirements going to come forward when that individual has to take tests? You are putting that person in a position for failure. David-George Newsome said that he has a lot of questions because the City is saying that their perusal said that Mr. Kirksey was qualified. At this point, being the City is the determiner of the qualifications, they said that you, Mr. Kirksey, was qualified. Your form was returned and now we have to figure out what we are going to do at this point because you were moved to the next step, but you didn’t appear. We are going to get more information so we can come to a decision as it relates to what do we do in this particular case, which is new. David said he cannot remember since 1997 anybody going from non- represented employee to union employee during a layoff status. 6 Willie German asked the question, looking at the guidelines for Mr. Kirksey’s job description, I never seen a non-represented employee have an option to fill a union position. I think that is one of the things that we need to look at and see if the guidelines and protocol were followed. David-George said, I think what you will find is that because there was no harm to a union person, because there were no union persons wanting the position, the City decided that they would offer it to a laid off employee. Lowell asked the question, whenever an appointing authority makes decisions, who is there to look at the decision that the appointing authority has made? It seems like once the decision is made, if they are wrong, then what happens? Whenever we get into the gray area where a person like Mr. Kirksey or anyone who is faced with a decision made by an appointing authority, we get repercussions for our decisions, but there are no repercussions for decisions made by appointing authorities. Mr. Wendtland said at the last meeting when Mr. Kirksey was requesting an interview, they had no authority to have anyone interview Mr. Kirksey. Mr. Kirksey was refused and all that was stated at the time was that the direction was given to the Civil Service Director to ask him to interview Mr. Kirksey, and he chose not to. When they make those decisions who do they answer to, or who can we go to, to get an answer? David-George said, if your question is about the appointing authority saying you qualify for that job, you could have appealed that decision. Lowell asked so my August 8 request for appeal was outside the bounds because of the timing? David-George said no, I am talking about the Water Plant Operator, when you were offered that on November 15, if there was an issue with that, I think that the appropriate time for an appeal would have been then, if you disagreed. Lowell stated when you’re outside of the City and the daily functions, you don’t know what’s going on down here. If I call and I ask, something should be made available for employees when they are in that position, or if there is a second in command for me or anyone else to talk to. According to the letters of communication that are sent out to you, the only person that you have a name to call is Deborah Groeneveld. There are no other options. The only phone number you have to call is her number. So if I am not documenting every time or recording every time I call Deborah, there is no proof. So a person is left looking like you didn’t try. I am saying to you I have tried a number of times. I didn’t know until this week that there is a person coming up here for employees to see on Thursday. If I would have known, I would have taken every opportunity to take advantage. Lowell thinks there should be a protocol on a way of doing business. 7 A second case Mr. Kirksey had when he was dealing with Bryon and the City Attorney was a question concerning if he was eligible to receive sick days, and he couldn’t get any answers. He went to Finance and Pat got mad at me because he didn’t come back to her to make sure she went to Deborah to get an answer for him. Seems like there is a gap of communication and needs to be filled when these things come up so no one else has these problems in the future. David-George said actually there are two issues. You’re talking about communication and phone calls not be returned. The first part of your question about the issue with the appointing authority that said your qualifications were acceptable, so at that point it was an appealable issue that you could have appealed with the Civil Service Commissions because we are the representatives of the classified service of the City of Muskegon, whether that is liked or not, that is the function. Now if your complaint is you are not being heard, that is totally different. So there are two issues that I hear being presented. If you didn’t like what the appointing authority says, you can certainly bring it to the Commission that is normally handled through the Director that will put it on the Agenda. We will have to figure out how this relates to communication. Lowell asked Deborah is she was going to hold this against him. Deborah said no. Lowell feels intimidated and Deborah apologized for the fact that Lowell feels his questions were not answered the different times they have talked. Lowell said he is not coming at Deborah, but it is just the way things are working. David Wendtland said just to clarify a point because we came on board both Norm and I as a result of some communication issues with past directors. David went on to say that he doesn’t think there is a person that works for the City that doesn’t understand after how many votes of trying to turn down the Civil Service Commission, that the Civil Service Commission in fact is the appealable body at any point in time in the process. If you are not getting answers or getting answers you don’t like, there is appeal process and you don’t have to formally appeal. As long as this commission exists, it is that appeal process. It is not the City Commission; it is this body that was created by the elected. You can go over our head legally, if you don’t like what this commission is saying. Lowell said that at the time of the notification of the job, it is similar to the same thing we went through concerning the DPW Supervisor position, trying to get to that point of talking and discussing the issue. You can be shut out of that opportunity and that is where the appeal comes in and that’s when Mr. Kirksey chose to use the appeal process. Lowell said he recorded the conversation between him and Dr. Lamson. Terees Williams spoke up and said she has worked for the City now for almost 14 years and she has never seen formal instructions on the 8 process of protocol of how to appeal and wants something in writing. Also went on to say that the Civil Service meetings are held during working hours and you have to take time off of work to come to the meetings. David-George responded that the rules could stand a lot of updating. Willie German said this could be sent to the Commission also and it can be discussed. Willie doesn’t think that people should have to keep coming in front of the Civil Service Commission that are dealing with management due to being formally hired and keep going through the process. Willie said that the protocols don’t seem to be followed. Willie would like the Civil Service Commission to go through this process. People shouldn’t have to wait for a process that takes so long. David-George said to Willie we have been here for quite a while and this is not easy. It depends on the day as to who is the most upset with this three-person commission. Most of the time it is the Commission that Willie sits on and the City Manager. We have always tried to do the best that we can to bridge the gap. We know that our system is antiquated. We have on a number of occasions tried to see how we could work together to make things a little smoother. We have asked the City Manager about the fact that everyone says that the Civil Service Commission is the problem. We asked for some stuff that we can work on that will make the transition easier, and that is when we were brought five items in 2009, and we accepted four out of the five items. One of the five items was the bumping situation. The City Manager’s secretary would be out the door if we accepted the Manager’s recommendation, which we did not. We cut out some preference points and two other things, but you won’t hear that this has occurred that we even went to them, and they didn’t come to us. We have attempted to make it as modern as possible and staying within the lines. David-George has even gone to the City Manager a number of times and asked to amend it instead of eliminate it. This was turned down. David-George would like to sit down with the Commission to get the City to run effectively. Lowell asked what the difference between the Civil Service guidelines on a local level is compared to the State and Federal levels? Could someone consult with the State or Federal to assist? David Wendtland said he thinks that the two issues that have come before the Commission is somewhat outside of the norm of what the Commission has done. We don’t need to look to the State or Federal systems, what we should do is look at the example at the County for a way we might be able to utilize which will take the best of the human resources system, but also have the Civil Service Commission act as an appeal body on two fronts. One is that the rule itself hasn’t been employed, or the rule itself is outside of the bounds of what it should be. We need to get the City Attorney in here to tell us how we can adjust the 9 codes so that the Civil Service system is amended so that it operates properly. There has been so many adjustments made over the years that people are looking for a fall guy and it has been the Civil Service Commission. David would like Deborah to research it, and count on the Attorney to tell us how to do it, and then what we can do to make the decision? Terees would like to know when the employees can expect a list of how to appeal to the Civil Service? David-George said that we are not going to give you a deadline, but we will look into it and see what we can do. Norman stated due to budgets some people are laid off and some positions are eliminated by the City Commission. Those who are laid off don’t like what the Civil Service Commission says and then they go back to the City Commission, who now is seeing the individuals that are affected by the eliminations of departments. Every decision, if they are not clear cut, we go the extra mile. We try to make sure that we have the right information before we make a decision. The Civil Service Commission is just a piece of the appellate process and really that needs to come from the City Manager on down. Perhaps the Commission could say to the City Manager how hard would it be to put out a letter that says if you are laid off here is your contact(s), and then you would contact Personnel, and then you would contact the Civil Service Commission for an appeal. It is not within the Civil Service’s perusal to put out a letter giving the steps for each different department of the City/County. Maybe this should come from the Commission on down on how hard would it be to put instructions together for employees. Currently all meetings are posted on the boards within each department. D. Request to Extend Fire Captain and Fire Battalion Chief Eligible List to expire 3/20/13. Deborah said that there were requests from Mark Taylor who currently sits on this eligible list. Mark Taylor said that the reason why he is requesting for the extension is because there are no other Lieutenants right now even eligible to write for it. Since I already passed the test and there is a possible opening up in September, I request that you extend it. Mark passed out the rules to the members. Deborah said there is a request to extend the current eligible list. David-George asked Deborah what her recommendation was and Deborah deferred it to Jeff Lewis, Public Safety Director, for his recommendation because it affects his department. Jeff said that at this time we have no objection to extend this list because after 12/31/13 there is an employee that could test. So if this extension was to take place it would be no longer than December 31, 2013. Jeff looked at the seniority list and looked at what they have in the entire contract and don’t see a conflict to extend this current list and thus the City would not have to retest these two individuals and the cost to 10 that would be no harm to any other employees because they are not eligible by contract to write for that test. January 14, 2014 would be the first time that this group could test. So we would like to extend this until 12/31/13 for both. David Wendtland asked, in terms of this list itself, has it been extended previously? Jeff and Deborah responded with no. Norman responded that this is different from the last time we asked to extend the list. We did not pass it based on the recommendations because there were other employees who were eligible to write for the test at that time. Neither of these positions has anyone eligible so there is not going to be any harm. If in the end there is no opening in September, because as we discussed before people do change their minds, circumstances change and so there is no opening, then there is no harm or foul to those who are currently on the list either because they can retake test in January 2014. David Wendtland said that the restriction is to the end of the year does apply to both positions. Jeff Lewis responds to both the Captain and Battalion Chief. Motion was made by Norman Cunningham and seconded by David Wendtland to extend the Fire Captain Eligible list to no later than December 31, 2013. Motion Carried. Motion was made by David Wendtland and seconded by Norman Cunningham to extend the Fire Battalion Chief List to no later than December 31, 2013. Motion Carried. IV. DIRECTOR’S REPORT Deborah Groeneveld stated that her report is on file. VIII. OLD BUSINESS Ron Archer inquired about the status of the part-time limited position. David-George asked Ron if he received a letter. Ron responded no. David-George said he was not here in November. The Director and David met with the City Manager and all of our concerns were eliminated and it is going to stand as it. Ron doesn’t understand what the concerns are. Ron stated that he was a full-time City union employee and applied for a non-union position as a Supervisor. They gave the job to part-time limited personnel; they are not through the Civil Service system. Ron said he is now out of a job because he had a back injury. As in the same situation as Lowell, he was laid off a non-union person that couldn’t 11 bump into this person’s position because they were part-time limited and yet this person can promote over anybody else. This part-time limited person is non-touchable. They can’t be bumped, but they can promote over anybody they want and given preference points over City personnel. Ron doesn’t think the scoring was done correctly. Ron said he has been fighting this for two years and put his appeal in and it was denied. The City Manager told him that it happened before so we are going to keep going like it is, then the letter states it has never happened before in the City, except for this one time and we want to make sure we never do it again. This is where they are now and they had to talk to their lawyer to see what their options were. Ron is still not getting an answer. It keeps on continuing and Ron thinks they waited to see what the Civil Service System passed or not because it kept going to the next meeting and the next meeting. Civil Service passes and all of a sudden you talk to a lawyer and come to the past two meetings and they aren’t going to say anything because Mr. Newsome was not at the meeting. Now you are here, Mr. Newsome, I am not getting any information except for “I should have gotten a letter, but they are okay with the concerns.” Ron doesn’t understand how can someone who is not part of the Civil Service system be able to promote over anybody and not get their position bumped? Ron doesn’t believe that the Commission knows about it. He thinks that someone was getting their buddy into the system and nobody else could touch this person. Ron said he is not going after this person personally, but it is just the way it was done and he doesn’t believe scoring was done correctly because they gave this person preference points. Ron went on to say that one of the judges left the test and didn’t know what they did with his scoring. Ron thinks that the Civil Service is counting on the fact that his wife works for the City and he won’t take it to court due to discrimination because of his disability. David-George responded that the policy is not changing. Willie German asked, “What is the policy?” He would like the policy sent to the Commission office, and David-George said that the record will give you how it relates to part-time limited and what’s available to them. Deborah Groeneveld will get the information to Bryon. David-George asked Ron Archer if he was satisfied and Ron said no. David-George went on to say that Ron will not be getting any more information regarding the answer, and he wants Ron to make sure he understands that the policy is not changing. IX. OTHER BUSINESS A. Extend Officers. David-George asked to extend the officers. The President is David Newsome and the Vice President is David Wendtland currently and our secretary is our Civil Service Personnel Director and/or her appointee. 12 Motion was made by David Wendtland and seconded by David- George Newsome to extend the officers. Motion Carried. VI. ADJOURNMENT The meeting adjourned at 5:31 p.m. H:\WPDATA\Deuling\Civil Services\CIVIL SERVICE MINUTES 2-19-13.doc 13
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