It's not up on the Lillie Papers website yet, but today's headline in the Maplewood Review reads, "John Banick case settled for $500,000."

To read my thoughts on this case and the current council majority's efforts to undermine the Police Civil Service Commission, check out my previous blog entries on the topic.

Our city manager stated that the settlement money came from the League of Minnesota Cities Insurance Trust, so "the cost has already been reimbursed back to us." (I assume that's the cost beyond our $50,000 deductible, of course; unless other lawsuits had already gone past our $200,000 aggregate deductible before this case.) Of course, the Trust is paid into by all the member cities, so the taxpayers are still footing the bill in the end ... just a larger pool of taxpayers.

Update: The Maplewood Review article is now on their website.

Labels: PCSC

Posted by John Nephew at 8/29/2007 04:20:00 PM | Permalink | Comments

My notes from the interviews for the Police Civil Service Commission are now available on Maplewood Voices. I have them archived here on my website as well.

Labels: PCSC

Posted by John Nephew at 4/14/2007 01:48:00 PM | Permalink

Yesterday morning I got up earlier than usual so that I could attend the Police Civil Service Commission meeting at 8 AM. My notes from the meeting are now on Maplewood Voices.

At the meeting we learned that the court denied Banick's motion requesting a writ of mandamus, and Maplewood Voices has archived a PDF of the judge's decision. (Thanks to HAK for providing that PDF.)

Labels: PCSC

Posted by John Nephew at 4/06/2007 09:10:00 AM | Permalink | Comments

I have not heard yet heard if the district court will issue a writ of mandamus to force the city of Maplewood to comply with the order of the Police Civil Service Commission to reinstate John Banick as a Lieutenant.

Not being a lawyer, I can't judge the nuance of the law when it comes the proper issuance of a writ of mandamus. Out of my own self-interest as a resident of Maplewood, I hope that Banick's attorney's interpretation of the law is correct. Reinstating Banick would not only be just and uphold the proper role of the PCSC, it would save the city money. Remember, we are hiring four new police officers plus a “public safety director” über-manager this year. Reinstating Banick would just mean hiring three new officers instead of four. The sooner we do it the less back pay we'll be coughing up for time that Banick hasn't been on the job; and the safer our city will be, as we will immediately have another officer on the force. This all seems more important to me than defending the pride and personal revenge agendas of the city manager and council majority.

In January, the judge did say that the termination of Banick appeared improper, since it did not involve the PCSC, regardless of whether or not it was retaliatory; that leads me to believe that the city's arguments about the PCSC having no jurisdiction don't hold a lot of water — they are hanging on a technicality to delay the wheels of justice. Even if Judge Mott agrees with the city that a writ of mandamus is not the appropriate means to enforce the PCSC's decision, that won't be the end of this story. There is too much at stake here. If the city's arguments stand, the role of the commission is gutted, and this would set a precedent with implications far beyond Maplewood.

The city argues that by reinstating Banick as a lieutenant, the PCSC is essentially reorganizing the police department and creating a new lieutenant position, thus usurping the city council's inherent managerial authority. In practice, there would be a reshuffling based on seniority (moving a junior lieutenant to sargeant, a sargeant to patrol officer, and, in our present circumstances, hiring three instead of four new patrol officers this year). The PCSC has not had a chance to follow through on those personnel shifts.

Consider the logical implications of the city's argument. Not only would the PCSC not be able to issue this order in the Banick situation (to reinstate an officer improperly terminated); other PCSC actions actions would be invalidated as well. For example, in a past case cited in the PCSC's order, the commission demoted a police chief to his previous rank of sergeant. Following the logic of the city's current legal argument, the commission had no right to do so because they were effectively creating a new sargeant position, just as in this case they would allegedly be creating a new lieutenant's position.

Again, whether or not there was an open position at the lower level to which an officer was demoted, the PCSC should be able to rearrange others according to seniority to open a position at the appropriate rank; and, if necessary, it could lay off the officer in the department with the least seniority. The city is either pretending ignorance of the PCSC's authority to reassign individuals to different jobs in the department in this manner — or, more likely, it is denying that the PCSC has such authority at all.

In other words, the city seeks to destroy the Police Civil Service Commission as it has heretofore existed. The current city administration is arguing for the PCSC to exist as merely an advisory board, providing an illusion of resident involvement, with all of its decisions subject to review and reversal (or simply to be ignored) if it should please the city manager and city council majority.

Actually dissolving the PCSC would require (according to Minnesota law) either a unanimous decision of the city council or a referendum of the city's voters. Since neither of those is going to happen, the council majority is trying an end run around the law to eliminate a troublesome check against the unfettered exercise of power to which they feel entitled.

Labels: PCSC, process

Posted by John Nephew at 4/03/2007 07:09:00 PM | Permalink

Yesterday afternoon I went to the Ramsey County Courthouse to watch arguments over a couple of motions in the case of John Banick et al. v. Maplewood.

One motion was to amend the complaint to add additional parties — joining Banick and the Maplewood Confidential & Supervisory Association will be the Metro Supervisory Association, which is another city employee bargaining unit. Apparently four other individuals have expressed interest in joining the suit as well, while yet another individual who was expected to join the suit has reached a separate settlement with the city.

The more contentious motion was a request for a writ of mandamus. On the face, it's pretty simple. At their meeting on February 5th, the Police Civil Service Commission ordered that Banick be reinstated as an employee of the Maplewood Police Department. The city refuses to recognize the authority of the PCSC to issue that order. Thus, Robert Fowler (Banick's attorney) asked the District Court to compel the city to execute the PCSC's decision.

Not surprisingly, the city asked the court to turn down Fowler's request. Pam VanderWiel, the city's lead attorney for this case, presented two sorts of arguments. The first was that a writ of mandamus was procedurally inappropriate (the city argued that mandamus should not be requested as a motion in an ongoing action, and in addition that the requirements for mandamus are not met in this case). The second group of arguments concerned the substance of the PCSC's action (namely, the city's contention that the PCSC lacks the authority to do what it did).

At the start of her argument to the court, VanderWiel invoked a phrase that I remembered her using at the January 16th TRO hearing as well: separation of powers. She characterized a writ of mandamus as an extraordinary action that would threaten our constitutional separation of powers by having the court meddle with the executive branch of the city.

This argument is, with all due respect, bogus. The logical end of this argument is that no court should ever have the power to overrule any decision of any executive branch, on the grounds that it would violate the separation of powers for one branch to overrule to decisions of another. However, that's clearly absurd; the point of separation of powers is not to establish three sovereign and insular governments over these same United States; it is to establish independent yet interrelated branches that check and balance each other, so that the rule of law can be upheld when one branch oversteps its bounds.

In the case of Maplewood's city government, we have a city council that effectively is both executive and legislative — creating the ordinances and policies and enforcing them. The PCSC holds a curious position in this separation of powers. Like many courts, it is filled with appointees who have been confirmed by another branch of government (the city council appoints its members for definite terms of service). It considers disciplinary cases and can issue judgments and penalties (such as demoting a police officer). Also like a lower court, its decisions are subject to appeal — and those appeals are not decided by the city council, nor even by the district court, but rather by the Court of Appeals. The PCSC is a court of record, in terms of creating a judicial record that an appelate court can review. Thus, within its narrow purview (personnel matters in the police department), the PCSC functions as the judicial branch of Maplewood city government.

So it seems to me that separation of powers is very much the issue at stake, but not in the way that the city has argued. The majority that controls the hybrid legislative-executive branch of Maplewood has decided not to follow the decision of this court of record because the council majority doesn't like it. (They also decided petulantly not to reappoint one of the three PCSC members, even though there were no other legally qualified applicants to fill the seat.) Rather than appealing the PCSC's decision to an appelate court, they decided just to ignore it. If this were on a different scale of government (like when Andrew Jackson simply refused to enforce the U.S. Supreme Court's Worcester v. Georgia decision, leading to the tragic and infamous Trail of Tears), we would call this a "constitutional crisis."

I guess in the context of Maplewood under our current council majority, this is now just business as usual.

Labels: PCSC, process

Posted by John Nephew at 3/28/2007 08:49:00 AM | Permalink | Comments

One of the council majority's gravest mistakes of the past year, in my opinion, was the firing of Deputy Police Chief John Banick. This action not only displays a disregard for process, it constitutes an attack on the institutional checks-and-balances of city government.

State law grants Police Civil Service Commissions authority over the hiring, promotion, discipline, and termination of police department employees. While the city council sets the budget and organization of the department, it is prevented from making decisions about which specific individuals are promoted, demoted, hired, or fired.

The obvious purpose of this is to insulate law enforcement from political pressures. Imagine a city where every police officer knew his job was directly subject to the city council. In most cases, people would do the right thing and this wouldn't matter. But in some cases, a police officer might feel pressured not to enforce the law in one situation (say, not to arrest a friend or relative of a council member), or to overstep his authority in another (perhaps to harass an opponent of the council majority). The state has wisely defined the role of Police Civil Service Commissions to assure citizens that the police will enforce the law equally on all.

The current Maplewood regime has decided they stand above that law. In their view, as argued by their attorneys, the council's authority to manage the city's budget and organization trumps the PCSC. There was only one position in the department with the deputy chief's pay grade. Thus, the city said that their reorganization meant that he in specific had to be terminated, and the PCSC was irrelevant.

Why would they want to remove this specific officer? I attended a court hearing in January about this case. At the hearing, Banick's attorney argued that the firing was retaliatory. Among other things, Banick had been assigned to conduct the background check on the city manager, Mr. Copeland, who was nominated by the mayor and approved by the council majority. This background check raised questions about Mr. Copeland's suitability for his job, and thus embarassed the council majority and Mr. Copeland. (Some of that report is in the public record, and can be found at Maplewood Voices.) If what Banick's lawsuit alleges is true, this is exactly the kind of situation that the PCSC was created to prevent — retaliation against a police officer for doing his job, when the results were not what the current political regime wants.

The president of the Minnesota Fraternal Order of Police regards this situation as so serious that he wrote to the Maplewood Police Civil Service Commision, saying his organization is "committed to expending vast resources in support of his case at the state and national level should that become necessary." If this precedent allows city politicians to circumvent a PCSC and fire specific officers by means of budgets and reorganizations, it is a threat to police officers everywhere who are committed to applying the law with an even hand.

The judge at the hearing in January observed that, regardless of whether it was retaliatory, it seemed obvious that Banick termination was improper, because it did not respect the process for handling police personnel matters set down by law. (Indeed, since then the PCSC met and ordered the city to reinstate Banick in the department at a lower rank.) This gives me hope that common sense will prevail, the council majority's ill-considered action will be overturned in court, and the role of the Police Civil Service Commission will be reaffirmed.

Still, that leaves us with a council majority that took this path, in spite of warnings; defended their action; and remains defiant even today, as far as I can tell, refusing to acknowledge the PCSC's authority. I don't know if they'll have the sense to settle the matter rather than fighting in court to the bitter end. What I do know is that we need a new council majority with the common sense to respect the law, understand the limits of their own power, and not lead our city down a path like this in the first place.

Labels: PCSC, process

Posted by John Nephew at 2/20/2007 06:50:00 PM | Permalink

At the December 11th, 2006, city council meeting, I spoke twice. I didn't go to the meeting with any plan to talk — these comments were just provoked by events at the meeting. The clip below, my first trip to the podium, took place during visitor presentations.

The first visitor to speak that evening had been an attorney, warning that the council's planned action, to fire his client (a highly respected, 20+ year veteran of the police force) simply by eliminating his position in the 2007 budget, ran afoul of state law and civil service protections. When he offered to respond to any questions from the council (since the budget was up for a vote this evening), the mayor told him, "We don't have exchange of dialogue at visitor presentations."

This was a rule I had never heard before. In fact, I had witnessed dialogue in the visitor presentations at many previous council meetings. I even had notes on my laptop from some of those meetings, recording who the dialogue was with and what it was about.

Obviously, this attorney raised uncomfortable issues and the council majority didn't want to talk with him. So Mayor Logrie pulled a new rule out of thin air and used it to send him away, or she dredged up a previously ignored rule and decided to enforce it just then because it suited her.

There are two things that really bugged me about this.

First, creating or enforcing rules in this kind of arbitrary manner offends my notion of the rule of law and a basic respect for process. We have enshrined in our Constitution (Article I, Section 9, paragraph 3) that "No Bill of Attainder or ex post facto Law will be passed." You don't make up rules after the fact, and you don't make up rules to single out and punish a specific individual. And you shouldn't enforce rules only on the people you don't like.

Second, this was completely unnecessary! The mayor could have said, "We choose not to respond to you." Simple! Instead, she conjured a hitherto unknown rule, as though to persuade the audience that she's as much a victim of circumstances as this attorney and his client.

This incident may seem trivial. Unfortunately, it illustrates a pattern we have seen repeatedly with this council majority — making up, selectively enforcing, or misinterpreting rules so that they can feign helplessness while enacting their agenda. They also have a related talent for ignoring rules, like those civil service laws, when the constraints don't suit their purposes.

Anyhow, I decided to call attention to the novelty of this rule, and suggest that if it is indeed a rule they should formalize it and apply it to everyone.

Then I discussed a completely different topic — a very misleading salary "study" that the city manager had published in the November city newsletter. He felt compelled to publish the salaries of half of the members of a newly formed city employee bargaining unit, the Maplewood Confidential and Supervisory Association. The speaker before me had waved a copy of this article, while expressing outrage at the salaries and apparently huge increases demanded by this new union. I believe the city manager was trying to elicit citizen outrage like this, to use against the city employees who had recently asserted their right to organize.

There were all kinds of things wrong with this deceptive work of propaganda (note, if you look at the fine print, that the table compares salary alone in 2006 to salary plus benefits in 2007, for example). I wanted to focus on one simple and amusing observation — that its big claim is basically that half of this group of employees had above-average salaries. How surprising is that?

Labels: PCSC, process, video

Posted by John Nephew at 2/18/2007 06:55:00 PM | Permalink

Why am I running for office? The short answer is that I have concluded that Maplewood city governance is broken, and I believe I can help fix it.

Over the coming months, this website is meant to explore the long answer to that question, but let me kick things off with some general observations.

I know that political candidates often have laundry lists of things they want to do — support this project, oppose that one, cut these taxes, raise those fees, cut that budget, etc. There's a place for that, but I think in the current Maplewood situation the problems run much deeper. Until we restore some competence and a basic respect for process at the top of city government, none of those policy debates really matter.

Let me give you an example: the firing of Deputy Chief John Banick. Set aside the policy question of whether or not the deputy police chief's position belongs in our police department. Whether by choice or ignorance, the city did not follow its own written policy concerning job eliminations, and it did not respect state law with regard to role of the Police Civil Service Commission. As a result, the city is embroiled in a completely unnecessary lawsuit, which we appear certain to lose.

We've seen many more examples over the last year, and I'll talk about some of them in the future. For now, let me suggest that we need to restore professional management and a respect for process at the top. That can only happen by changing the council majority, and by hiring a competent and professional city manager capable of executing its will effectively. Then we will be in a position to engage in meaningful debates about the policy details.

Labels: campaign, PCSC, process

Posted by John Nephew at 2/14/2007 05:26:00 PM | Permalink