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MUSKEGON BOARD OF CIVIL SERVICE COMMISSIONERS
Regular Meeting Minutes
Thursday, January 15, 2015
4:00 p.m. City Hall, Room 203
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I. CALL TO ORDER
The meeting was called to order at 4:06 p.m.
Present: Commissioner David Wendtland, Commissioner Pamela Lynk,
Commissioner Kevin Huss, Andrew Stone, Human Resources Deputy Director,
Amy Huss, Human Resources Manager, Chief Jeffery Lewis, Public Safety
Director, Frank Peterson, City Manager, Michelle Landis, City Attorney, Curtis
Adams, Angela Ross, Attorney, Jason Boes, City of Muskegon IT, and Mary
Mansfield.
II. ELECTION OF CHAIR
Motion was made by Pamela Lynk and seconded by Kevin Huss to appoint
David Wendtland as the Chair of the Civil Service Commission.
Motion Carried
III. MINUTES
Commissioner Wendtland noted some errors in the minutes from the November
meeting that needed to be changed.
Motion was made by Pamela Lynk and seconded by Kevin Huss to approve
the regular minutes of the November 13, 2014 meeting as amended.
Motion Carried.
IV. ACTION AGENDA
A. Curtis Adams Appeal Decision. The hearing began with a continuation of
testimony by Ms. Landis.
Ms. Landis stated that largely, the testimony is complete at this point. The
question was as to how far back the records came from, and why a 6:07p.m. call
didn’t show. She was curious how Commissioner Kevin Huss felt about being a
part of the decision process having not been at the first portion of the hearing,
and stated that the Battalion Chief is available by phone if there are any
questions for him. Commissioner Huss stated that with the ability to look at the
detailed minutes in advance, and he had no questions of the last meeting, and
he was ready to take action. Commissioner Wendtland stated that it would be
important to get the IT person’s testimony since that was a question for the
Commission.
Ms. Landis brought in a member of IT from the City of Muskegon. Ms. Landis
asked the witness to state his name for the record, and he stated his name is
Jason Boes, City of Muskegon IT. Ms. Landis asked Mr. Boes how long he has
worked with the City, and he stated that he has worked at the City in IT for
thirteen years. She asked if, prior to this case, he had ever been asked to do a
forensic investigation of phone records, and he responded that he hasn’t. Ms.
Landis asked Mr. Boes what he was asked to look for, and he stated that Brad
Vanderberg asked him to find phone calls to the Battalion Chief’s phone
number, 231-724-6795 coming from Mr. Adams’ cell phone. Ms. Landis made
reference to an email exchange between Battalion Chief Brad Vanderberg and
Mr. Boes. Ms. Landis asked Mr. Boes, based on the email, what numbers he
looked for and what he looked at. He responded that he searched for Mr. Adams’
cellphone number, 231-670-9283 and the Battalion Chief’s number to pick up
any communication between the two. Mr. Boes stated that in the reporting
interface, it shows calls as “simple calls” with this number to this number. It’s
an administrator interface that Mr. Vanderberg could not view, that only
administrators could view. Mr. Boes stated that he made screenshots of what he
could see. An actual detail window is available that brings up information as far
as the duration of the call. Mr. Boes stated that he gave Mr. Vanderberg the
screenshots of what he could pull up, and then went into the details and
provided him with the times the calls came in and the duration of these calls.
Ms. Landis asked Mr. Boes what the timeframe was for his search, and he
responded that his report is for August 11 th from 4:00a.m. to August 12th at
4:00a.m. Ms. Landis then asked Mr. Boes if this is an accurate reflection of what
he saw when he did the scan, and he responded that these are the three simple
phone calls coming from Mr. Adam’s to the Battalion Chiefs phone. The times of
the phone calls were 6:36:34p.m. for twenty seconds, 6:36:58p.m. for just under
a minute, and 6:40p.m. for approximately two and a half minutes. Ms. Landis
asked if Mr. Boes had any idea of the larger reason this request was made, and
he said he had no idea and was just providing the information to Mr.
Vanderberg. Ms. Landis then asked Mr. Boes if after the last hearing, if he
received information from the Chief to indicate that he had missed something
about a call that came in at 6:07p.m. and why it was missing. Mr. Boes stated
that he was asked to look back, but after 60 days, the detailed records are
purged from the system. The request was originally made within the window of
the 60 days, but when he was asked to look for the 6:07p.m. call and why it was
missed, he stated it was too late and the information was purged from the
system. Mr. Boes stated that he could only look at the information he originally
gave to Mr. Vanderberg, and from that information, he could not determine that
there was a 6:07p.m. call. She then asked if there was any subsequent report
that showed the 6:07p.m. call, and Mr. Boes responded that there wasn’t. She
asked if there was any other information about the call at all, and he stated that
there’s not, and he could not prove or deny a 6:07p.m. call. Ms. Landis asked
about an extended search, she asked if Mr. Boes did a search of a more indepth
search than a simple search, and he responded that he could not prove or deny
a 6:07p.m. call.
Ms. Ross asked if the records are purged, stated that Mr. Boes has nothing to
dispute the call, and he responded she was correct. She asked if Mr. Boes was
told to only start at 6:30p.m., and he stated that was not the case, that he was
asked for August 11th’s phone calls. Ms. Ross asked if was going by phone
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records and if he believed they were correct, and Mr. Boes said yes. She then
asked if they would be a detailing of what factually occurred, and he said yes.
Commissioner Wendtland asked to clarify some information. He asked Mr. Boes
when he went back to the 11th, if these are the only calls that showed on the
11th, and Mr. Boes stated that this is the extent of what he found during the
period of time he searched.
Commissioner Lynk stated that she had a problem with why the time wasn’t
extended to include the 6:07p.m., and Commissioner Wendtland told her it was.
Mr. Boes stated that the time of the report was August 11 th from 4:00a.m. to
August 12th at 4:00a.m. He stated that he could not show a simple call at the
time of 6:07p.m.
Ms. Ross proceeded. She stated that she has not been privy to a lot of the
information from the previous hearing. She said she understands that it was
reported that there was a violation of 6:00a.m. and failure to call one half hour
prior to shift start time, which is not the rule. She added that rule states
“6:00a.m. call the Battalion Chief’s office 724-6795 before 06:30 to inform of
injury or sickness.” Ms. Ross added that the half hour rule is not part of the
violation as it is not part of the rule. She also added that if we were going to
convenience of the half hour rule, Mr. Adams gave his verified Sprint call records
that shows a call at 6:07 to the number that is stated in the rule. Ms. Ross
stated that there is no dispute as to the phone call, and that Mr. Adams has the
call in question on his phone to verify that it was made. Mr. Adams also has a
call on his phone coming in at 6:32, and Ms. Ross questioned that if not call was
made before 6:30, why would the office have called him back at 6:32. Ms. Ross
stated that a minimal effort was made to retrieve information with Mr. Adams’
number included. The Chief called Mr. Adams at 6:32, and Mr. Adams missed
that call. Ms. Ross stated that in terms of the investigation, a report was done by
Chief Lewis, she wasn’t sure what the investigation was because no phone
records were done at the time and could have been done before the hearing and
before the violation was written up. Ms. Ross also stated that Mr. Adams was not
interviewed, the Battalion Chief was not interviewed, and this was all completed
after two or three hearings. She added that it is her contention that the rule was
complied with and there was no violation, there was already a reprimand, and
requested that the time be given back and it be stricken from Mr. Adams’
records. Ms. Ross stated that he complied and made every effort to do so.
Ms. Landis stated that she was confused, that Ms. Ross sounded like she was
giving a closing argument with additional new evidence not introduced at the
last hearing. She said she was not going to question the attorney as a witness,
but she would respond to the new evidence being proposed. Ms. Landis stated
that this is the first time she has heard any evidence of a call being placed at
6:32 to Mr. Adams. She stated that based on the new evidence and the
testimony by Mr. Vanderberg, Mr. Adams may have called before 6:30 asking for
vacation, as we heard testimony to. Mr. Adams originally asked to extend his
vacation time another twelve hours. She added that after 6:30 is when Mr.
Adams asked to change it to sick time. When originally asking the Battalion
Chief to extend his vacation, the Chief had been running around trying to find
someone to cover for Mr. Adams and he couldn’t do it, so Mr. Adams was told he
couldn’t have vacation time, and that could be why the office called Mr. Adams
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back. Ms. Landis stated that if she would’ve known about the 6:32 call, she
could’ve asked. She then added that if we assume it to be true that Mr. Adams
did receive a call at 6:32, her assumption would be that he was being told that
there was nobody to cover his shift for vacation. She added that the testimony of
the Battalion Chief, Mr. Vanderberg, that he was called by Mr. Adams to get his
vacation extended, and it was after 6:30 is when Mr. Adams stated that he
wanted to be put down as sick instead. Ms. Landis stated that the violation was
given because of asking for sick time after 6:30. She also added that if we looked
at the most literal meaning of the rule, Mr. Adams should have called at
6:30a.m. Ms. Landis stated that Mr. Adams originally called in to extend his
vacation, and when he was told he couldn’t, Mr. Adams stated “then put me
down sick.” Chief Vanderberg testified that he told Mr. Adams that it wouldn’t
look good and he couldn’t do that, due to it being after 6:30, and this is the
reason he went after the phone records in the first place. This exchange of
changing his request to sick leave happened after 6:30.
Ms. Ross stated that a lot of assuming is going on, and that assumptions about
a phone call is borderline ridiculous. She added that there is no way to know
what the phone call is about, and Ms. Landis is assuming what the call is about.
Ms. Landis interjected that assumptions had to be made because this new
evidence was not presented until this hearing. Ms. Ross then stated that this is
the City’s failure. She added that the records clearly state that her client, Mr.
Adams, made the 6:07 call.
Commissioner Lynk stated that because the City records don’t show a 6:07 call,
it doesn’t mean it didn’t happen. Ms. Landis stated that Commissioner Lynk is
correct, but if it happened and it was missed, there has to be a reason for it. The
call had to have either been not picked up or no message was left. Ms. Landis
reminded that the testimony is that the Battalion Chief did not receive a call or
voicemail asking for sick leave before 6:30. She added that this is a credibility
issue. The Battalion Chief testified that he did not receive any request before
6:30 for sick leave, but that he spoke to Mr. Adams about vacation being
extended prior to 6:30, and Mr. Adams changed his request to sick time.
Ms. Ross stated that in coming to the issue of credibility, credibility is backed up
with evidence. She stated that her clients’ credibility is on the line as well. Ms.
Ross stated that her client, Mr. Adams, stated that he called at 6:07 and he
brought in the documentation to show that he did so. She also stated that there
is no evidence as to this conversation that took place between the Battalion
Chief and Mr. Adams. Ms. Ross stated that the conversation doesn’t matter, that
she has the documentation, Mr. Adams’ Sprint phone records, to prove the
phone call did take place.
Ms. Landis commented that the 6:07 call on Mr. Adams’ bill was for one minute,
meaning it could be for one second to 59 seconds. She added that Sprint bills
round up to the nearest minute. Ms. Landis stated that we do know the 6:07 call
is for less than one minute. She added that we don’t know if the phone picked
up, if a voicemail picked up, or if a conversation took place. Ms. Landis stated
that what we know is the testimony of the Battalion Chief, and he stated that he
did not speak to Mr. Adams before 6:30 about sick leave. Ms. Ross stated that a
phone call at 6:32 to Mr. Adams wouldn’t have taken place if a voicemail hadn’t
been left for the Battalion Chief at 6:07.
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Commissioner Lynk said that she is not satisfied. She stated that at the first
hearing, Mr. Adams wasn’t notified that he didn’t have to go through with the
hearing, that he could’ve had an attorney. He didn’t find out after the hearing
that he could have an attorney, and that wasn’t fair. Commissioner Lynk stated
that to be fair, we should’ve informed him that he could have an attorney at the
same time the City was advised they could have an attorney. Mr. Lewis stated
that Deborah Groeneveld, County Human Resources Director, stated that both
parties could have attorneys. Mr. Lewis added that he asked if he could have
representation before moving forward, and that he could’ve presented without it,
but the adjournment was granted so he didn’t move forward. Commissioner
Lynk stated that she didn’t hear the conversation, but Mr. Lewis stated that
Deborah Groeneveld advised the room. Mr. Adams argued that the Chief stated
that he needed City representation, and that Ms. Groeneveld said that the
meeting was going to be adjourned until then and only asked him if it was okay
to come back, and that she did not tell him he could have legal representation.
Mr. Adams stated that it wasn’t until Ms. Landis asked him at the last meeting if
he had legal representation, and that she didn’t say anything else. Ms. Landis
stated that she asked Mr. Adams if he had an attorney because she doesn’t
speak with apposing clients who are represented by counsel, so she was going to
look for attorney.
Commissioner Lynk also stated Commissioner Newsome was called to attend the
hearing because he had not arrived. Commissioner Newsome presumed that the
meeting and/or hearing would take place, and it wasn’t until after Commissioner
Newsome arrived that Chief Lewis pulled Deborah Groeneveld outside of the
room to discuss things with her. Chief Lewis stated that he was prepared to go
that day because it was a simple case, but because he works for the City, he
wanted to make sure he was doing things in the best interest of the City. When
he asked if he could have representation, Ms. Groeneveld stated he could, and
that’s when Chief Lewis stated he would like an adjournment. Mr. Lewis stated
that it was up to Mr. Adams to get counsel from Human Resources as to his
rights. Commissioner Lynk stated that she didn’t hear any of that, otherwise she
wouldn’t have a problem with what’s going on now, and they are things that
were not discussed at other meetings.
Commissioner Huss stated that he reviewed the minutes from the last meeting,
and that he had no questions regarding the minutes. He added that he saw the
phone records from Mr. Adams’ personal phone records, and that he sees the
call at 6:07, and that he understands that calls are rounded up. Commissioner
Huss also added that he saw the corresponding calls on the records of Mr.
Adams.
Commissioner Wendtland asked Mr. Boes that his reports that shows the three
calls included the time of 6:07 on that date, and Mr. Boes said yes.
Commissioner Wendtland then asked if it would’ve showed up if picked up or
received, which it would be. Mr. Boes clarified that it would’ve been logged as a
simple phone call if the call was picked up or voices were exchanged.
Commissioner Wendtland said that we do have information as to the existence of
the phone call, because it would’ve showed up as a simple phone call if the call
had been picked up or voices exchanged. He then asked if there was a violation
of more than just the one day, and asked if that was true. Ms. Landis stated that
one prior was taken into consideration, and Mr. Adams could’ve been suspended
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for up to three days. He added that he was given the one day suspension, which
for the fire department, 24 hours is three days for the firefighters because a
typical shift is eight hours. Commissioner Wendtland asked if the Chief was able
to replace Mr. Adams by 7:00, and the Chief said he wasn’t able to do so. He
added that when individuals request vacation time, the department needs much
more notice than that. Chief Lewis stated that this is where the controversy is.
Mr. Adams was on vacation for the first 12 hours of his shift, and within the
hour before his shift, he called and requested continued vacation time. Vacation
time has to be done in advance, and this rule applies to everyone. Chief Lewis
stated that the department is running at minimum for every shift and every
station. If an individual requests benefit time off, calling in less than an hour
before a person is to start their shift puts the department in a very difficult
place. Chief Lewis stated that Mr. Adams took the day off sick after he was told it
was too late to take vacation time, and the department had to scramble
chaotically to fill his vacancy. Commissioner Wendtland question if the only way
to fill the vacancy at this point would have been to hold people over or bring
someone in, and Chief Lewis stated that this was true. Chief Lewis stated that in
this incident, someone was held over because there wasn’t anyone to fill the
time.
Commissioner Wendtland stated that he knows the City is not able to go back
more than one year to determine disciplinary actions for an employee, but he
stated that the commissioners received a number of violations of the very same
instance that is occurring at this time, dating back to 2002. Ms. Ross argued
that the commissioners shouldn’t be looking at this data as this incident is
within six months. Commissioner Wendtland stated that the department can
only consider six months, but that the commissioners can consider all prior
behavior. Ms. Ross questioned how they are able to do so, and Commissioner
Wendtland stated that they can consider any other information that they would
like.
Commissioner Wendtland stated that Mr. Adams is claiming he was wronged. He
added that he understands money means something, but that money can be
made up with another shift or overtime. Commissioner Wendtland stated that
instead, Mr. Adams chose to come in and challenge the rule in front of the
commission after doing this same thing more than once. He added that he feels
as if the commission is dealing with Mr. Adams’ credibility. Commissioner
Wendtland asked Mr. Adams how many years he has been with the department,
and Mr. Adams responded that he’s been with them for about twenty years.
When Commissioner Wendtland asked Mr. Adams has until retirement, and he
responded that it depends. He then pointed out that Mr. Adams has done this
time and time again, and some incidences Mr. Adams doesn’t show up for
almost two hours after his shift. Commissioner Wendtland asked the other
commissioners if they had anything else to say, and Commissioner Lynk stated
that this information Commissioner Wendtland was discussing wasn’t given to
her. He told her that the information was emailed in the packet with the other
information for the meeting, Commissioner Huss also stated that he received it
as well, and she stated that she didn’t receive any of the information.
Commissioner Lynk said she would not discuss the packet at this meeting. Ms.
Ross questioned if this was being admitted as evidence and is part of the
hearing, or if it was just a random email, and Commissioner Wendtland stated
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that it was indication of prior behavior and his credibility. She then asked if it
was part of the hearing, and Commissioner Wendtland stated that it wasn’t, and
she then asked if he’s deciding based on information that is not part of the
hearing. Commissioner Wendtland stated that he is deciding based on some of
the information received in the packet.
No further discussion amongst the commissioners took place. Commissioner
Wendtland stated that the commission is in the position to either agree with the
chief by saying no to Mr. Adams’ request for an appeal, or to say yes to Mr.
Adams’ request to deny the chiefs action.
Commissioner Huss made a motion based on the transcript and the
evidence that has been submitted to uphold the suspension, solely based
on the dictation, phone records, evidence and testimony given at this
hearing and seconded by David Wendtland.
2 Aye, 1 Nay
Motion Carried.
Ms. Ross stated that she will be appealing the decision and will be giving written
notice. Commissioner Lynk requested to speak to the other two commissioners
alone after the meeting is adjourned.
V. NEW BUSINESS
None.
VI. OLD BUSINESS
None.
VII. OTHER BUSINESS
None.
VIII. ADJOURNMENT
The meeting was adjourned at 4:54p.m.
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