Civil Service Commission Meeting.

Chair

Are there any recent disciplinary cases? You can think of where somebody was held to a harsher, maybe unfair disciplinary standard. Obviously the Austin Pierre case, which was decided in his favor and overturned. Okay. Do you have anything else to add? No, I'm good. I thought, so we talked about this at the last meeting, that's why I confirmed that this is an unchanged item. My thoughts are likewise unchanged. Like a moment ago when Rob was presenting this, Rob noted that this rate of pay would apply to people without minimum qualifications. Rob noted that they might meet some of them. Actually though, some of the people doing this will meet none of them. It is not merely that they rely on people who meet some but not all. They also frequently rely on people who meet none. Am I right, Donna? Okay, would you agree? So my position is that it's still wrong to offer this partial rate of pay. When, you know, I won't drag you guys through the lengthy explanation I gave at the last meeting, but the basis of it remains full liability, full responsibility, and full professional risk that outstrips the benefit of a half rate pay that is being proposed. Because like in the now infamous Austin Pierre case, the appointing authority went out of their way to ignore a police report that cleared him of responsibility and they suspended him. And I can go into all of the attendant consequences that come with a suspension that is not merely a three-hour suspension. It was a loss of scheduled overtime. It was a loss of the potential that you could lose a pro rata portion of your state pay. The department has recently, as in the Massa case, taken the opportunity on a suspension like that to deny a promotion. All when this commission decided in the Pierre case that Pierre was unjustly suspended. So that's the professional risk anybody takes on if they are pushed into this position with or without the minimum qualifications. And this is, the money here is a slap in the face. So, if the court doesn't side with your position, then, and you don't approve this, then we're left to where there's no mechanism. I agree, but I have a worry that, like, we approve this, now we've got this half rate pay, they're still going to throw people under the bus. You lose, I mean, so, let's talk real dollars. I'm estimating that in an operator's position, I'll use Pierre as my estimate in my head. For him to work 24 hours, let's say, as an acting operator, minus the minimum qualifications I had, I don't know, would you think it's like a $60, $70 bump for that period? All right. What's he lose when he gets suspended for three hours? He loses, or more. I mean, they use three in that case. But I already said, he could lose a promotion, he could lose all kind of stuff. This half rate of pay, I understand the justification. I just don't think that what is proposed is itself just. So, let me ask you a question, I guess, to think through the issue. We currently have a mechanism, so what's the difference? Because this is on an intermittent basis, so the current mechanism really provides for, if the person you're replacing is gone for a long term, like they're gone out of the system for a long period. So, it's almost like putting an interim person into. This is as needed on a shift by shift basis. Gotcha. And you guys are concerned about if there is some discipline for someone who's either unqualified, or if there is a deviation or discipline because a procedure wasn't done. Was it worth the amount of money? You're saying it's not sufficient enough for. Not exactly. There will be discipline in cases. Something's going to happen one day where right or wrong, it's sort of the discipline process to decide. But what we've seen the department do in terms of their own conduct is not follow that. I don't recall who was on the Pierre case on this commission, but the record in the Pierre case shows, Superintendent Nelson actually testified under oath that he didn't bother to apply what should be the biggest mitigating factor of all, the police report that cited witnesses, the witnesses' admission that they were at fault, and he used that just to suspend Pierre. As a matter of fact, at a meeting not that far later, he told us he wants to appeal that decision. City attorney, thankfully, is not allowing that. So we have an appoint, I'm sorry. No, go ahead. My closing statement, my last line of that sentence on there is we have an appointing authority that is, in my opinion, committed to doing whatever they have to do to suspend people. I mean, it doesn't get any more clear when you have a police report that he admitted, but I just didn't look at that, and he still wants to appeal it. And this 7.5 rate is half of that. So I'm saying I understand Amy's point, actually, because this normally functions as a rate of pay where it's like you're not fully qualified, you're temporarily doing this, but we're not dealing with normal circumstances like that, as the Pierre case and others will show. Well, I think what I'm hearing is that is a result of not the actual proposal of, if that makes sense. So what I'm trying to differentiate is that the proposal is intended to do X, Y, and Z. What you're citing is a bad result of something not being applicable or as a result of something going wrong. And so I don't know if the means always results, like the consequences to the means, I guess, trying to understand the resistance or the tension here. I would feel better about a proposal that paid the actual going rate instead of one that is reduced. I know Amy's gonna come back. And we're gonna be strongly opposed to that because it's total counter to the whole classification in civil service where people have to meet the qualifications and it allows the department to circumvent that. Here's the thing.

Chair

So you're not opposed if it paid the whole rate, the same trigger could be pulled, but you're just saying the rate is not sufficient enough to say if I do get an ouch or a slap on the wrist, it wasn't worth it. Or have my due process violated. Now, the thing is, I actually, I don't disagree with Amy because the rules are intended to apply, but we've got people that aren't playing by the rules. So I think it's incredibly unfair to offer this rate. I'd be happier if the rate, if the proposal was changed. Now, Secretary Gallagher's position's a little different. I understand there's the tension between those two. Mine is, my concern isn't really that a rate is being proposed. That's his, and I see that too. Mine is like speaking on this item that's in front of us. The rate is insufficient, given the circumstances. I want to get to it. So what I'm hearing in the public comment is that the employees impacted by this would prefer at this time not to have the rate increase than to have it now and wait for the decision on whether the policy's correct. So to answer your question, it's not that we're opposed to a rate increase. We're opposed to what implications that would have into any future investigations into the rule. We don't want to end up in a situation where we're alleging a rule violation and the city comes and says, well, they supported the pay for it, so it's fine. We don't agree that dual assignments and having people act out of class is allowed in civil service rules unless they possess minimum qualifications. Our fear is that this partial pay model, and I do agree with Commissioner Monteverdi that it should be full pay, but even a partial pay, we don't have a problem with paying firefighters. We have a problem with them using firefighters' capacity we don't believe they're allowed to use, and we don't want support of a pay increase to impact that argument when it may come before you in the near future. That's our concern. Okay, so it's honest to D. I would just say that I think it's noted in the record that you're not supporting this, so we couldn't use that, oh, they supported it. So that wouldn't be it. So your objection is on the record. Fair enough. But I'm saying, would you rather not have them increase? Again, it's a hard question. If they're gonna force people to take on a position that they're not qualified and don't desire to do, I'd rather see them paid than not paid. But I also believe that they should be paid full pay as anyone who is qualified if they're being forced to do it. There remains the question of justice and treatment here. The fire department put themselves into this position by doing what they've done with the leeway they have or have perhaps stretched. And the treatment that they play, I mean, that's what we're here about, really, is making sure that the employees aren't being abused and that the Pierre case is the one that made its way through here and that this commission did determine that the department used him in that capacity, abused him in that capacity, took away things. Like, it just, it doesn't add up. I'd be happier personally if they came in and said it's the equal rate. Amy's right. It's not how things are typically done. But the department painted themselves into this corner. We have a speaker card from William Gove. Commissioners, I just wanted to add a little bit of information to the context of this. First, I think it's important to note that the special rate of pay would apply to firefighters whether they volunteer or are compelled. So this is not specifically just for people who are performing a duty that they are not willing to perform. You would be compensating both people who want to be doing this work as well as those who may be required to do so when there's no one who is willing. I also want to point out specifically regarding the Pierre case that this commission didn't decide, and I don't think there's any evidence to suggest that what happened in the Pierre case with respect to the disciplinary action had any connection to the fact that Pierre was a firefighter rather than an operator and was working out of class. So the suggestion that there is somehow a bias against people who are working out of class or some sort of extra penalization that's happening, I just haven't heard any information to suggest that that's true. Now, maybe there is information. Again, I don't know that that's relevant to the question of how much people should get paid when they are working out of class. I don't suggest that there's any bias in the treatment of Pierre. I suggest that there is negligence on the part of the appointing authority in the way it was handled once. No one denies that Pierre had an accident. What happened, and what the record shows, what the commission and what the city attorney is probably, I don't want to speak for you, has declined to appeal that case to the Fourth Circuit on, despite the appointing authority's wish to, for some reason, is that he was mistreated. And that kind of treatment goes on all the time. It's just the Pierre case is the one that is here. Can I ask you a question, though? I'll answer if I can. Yeah, no, this is one I think that we would see eye to eye. Are you willing to say, though, I think you said it last time, that this rate of pay question, you still hold it distinct from the eventual outcome of litigation or a rule investigation? I mean, I think that's correct. I just don't have any reason to believe that the action, as far as how much people get paid, is a statement. What you're suggesting is that the commission's rule today would not count as a statement on the legal question of whether they can be compelled to work? Is that the concern? I think so. I think the commission could certainly announce its intent if they wanted to, right? It's up to the commission to decide what their rules are and what the purpose behind them is. Because me knew, yeah, sorry.

Chair

I also, I don't think it's a necessary connection. I think the commission could decide to say, if, in fact, it's permissible to pay or to require for firefighters to work out of class without meeting the minimum qualifications, then this is the pay they should receive, right? On my motion to defer at the last meeting, I said that that was based on the fact that I wanted to hear a little more from the employees who would be affected, and I have. I was in attendance at the Firefighters Union meeting just last night, where I put the question to them. Because it is ironic, I'll admit, that we're sitting here going, hold on, let's don't add this. We explained it much the same way we've explained it today. And those employees, those fire employees who were in attendance, they gave their voice vote to a motion to defer this today along the same line. So for all the reasons I have set out, I'm uncomfortable with the notion of paying. I think once we get it in, we know this has to also be approved councilmatically. That could be slow. Would the city one day ever offer to go to the full rate? I'm not sure they would. And I have those disciplinary concerns that underlie it. I'll leave some room for other commissioners before I make any motions or anything. I would just pose one question as to how many members were present at the Firefighters Union meeting and whether that's equitable.

Staff

And I think that's really important because I think one of the challenges that the commission always faces that when we get appeals or just at least disputes before us, it's like, hey, my feedback and my performance appraisal doesn't match what's happening in the conversations about discipline. I've been given exceptional in my performance. I'm not aware if there are any deficiencies, yet I'm sitting here requesting an appeal because I have been either terminated or disciplined in a way that didn't reflect on my performance or my annual evaluation. Exactly. Yeah. It documents exactly what the issue is for the employee's benefit and then for the employer's benefit as well. But, yeah, so it will not be a surprise. So it doesn't keep going without being addressed to be mitigated. Thank you. I appreciate it. Considering the prior to the water board issue, were any restorative disciplinary practices presented to help managers and stuff redevelop relationship to work together through the disciplinary process or is just... We did not focus on that. We did not focus on that. That's an interesting concept. Yeah. Something we'll have to look into because we did not. That was not addressed. I can say I've seen a few positive developments since then, so really great work. We all should feel very grateful to Amy and her staff for this program they did put on and anybody else who was involved. Will, that goes for you too, buddy. Seriously, though, I've seen a few positives come out of it in the short time since it happened. Great. Thank you. When we all work together and let the system work like it's supposed to, it makes everyone's job a little easier or at least transparent. Absolutely. I think that's the aim of this is we all want a high-performing, high-functioning workforce and how do we get from here to there? Where does discipline feed into that? Where does coaching and counseling feed into that? Where do performance improvement plans contribute to that as well? Last point to Commissioner Dittige's point, I think employees feel that that trust is there, that that conversation is for my improvement, my betterment, or understanding where I just kind of like dropped the ball, meaning gaps. Exactly. Yeah. Yep. Okay. Great. So I think, do we have to... We don't have to do anything. Is this a report out? And that is all the business we have before you today. Okay. So, commissions, we need a motion to adjourn. So moved. We have a motion. Do I have a second? Second. Okay. All in favor, please say aye. Aye. Thank you. Thank you, everyone. Have a great week. Please stay safe.