Police Civil Service Commission Meeting

City Hall, Council Chambers, February 5, 2007

Totally Unofficial Notes by JN

The meeting was called to order by Mr. Gunn, at 7:05 PM. Present were all three members of the Commission: Steven Gunn (chair), Debra Birkholz, and Dr. Marlene Palkovich.

In the past the commission has always met at 8 AM in another room – this is the first time in the council chambers, where meetings will be in the future for cameras to be able to broadcast the meetings. The commission members mentioned that this may raise some personnel issues they need to talk about with the city attorney, which had not arisen in the past since usually there isn't any public attendance even though meetings are public.

The chair described the meeting agenda. He clarified that the topic of former Deputy Chief Banick would not be a closed portion of the meeting, as originally had been written on the agenda on the city website.

Elect Secretary and Rotate Chair

This was new-year procedural stuff, which I did not pay close attention to.

Approval of December 28, 2006 Meeting Minutes

Palkovich moved approval, Birkholtz seconded. All ayes. Gunn noted it had been an open meeting, called as an emergency meeting on that day.

Review Exam Results and Certify Police Officer Eligibility List

Gunn asked Police Chief Thomalla to describe the process that led to the list before the commission. The chief described the testing process that winnowed applicants through written exams, oral exams, written exercises graded by a member of the commission, and then interviews with the chief. This whittled 70+ down to a list of 31 successful applicants. Some applicants were removed from eligibility due to failing to get licensed, or had taken jobs elsewhere, etc.

Palkovich asked if data privacy laws allowed them to discuss the applicants in a public meeting. City Attorney Alan Kantrud said that applicant data is public data once the list is certified, in his understanding, unless there are special circumstances (such as an undercover officer). Chief Thomalla clarified that in discussions of background checks and so forth, the applicants are referred to by a number rather than by name. Further discussion clarified that applicants know their ranking on the list (which I guess is ordered by the combined score they had in the various parts of the testing and interview process), but not the numbers of others.

Palkovich moved certification of the list.

Birkholz then made a motion to reject the list, because of the open and unresolved matter of John Banick. She observed that depending on the outcome of the Banick matter, there may not be an opening (as other people in the department may have their positions shifted, if Banick were reinstated in a position other than the one eliminated by the council's reorganization).

Gunn seconded Palkovich's motion and called for discussion, saying that Birkholz's motion could not be considered at this moment because Palkovich's was before them. Birkholz restated the substance of her motion as an argument against the Palkovich motion to approve the list. Palkovich then said she'd like to withdrawn her motion. She asked Chief Thomalla for input on the impact of rejecting the list.

Thomalla stated that four positions are currently open. He said that certification of the list would allow the police department to begin background checks and so forth, even if in the end only three rather than four officers are hired. Thomalla clarified that he wanted to know from the commission if the department should proceed with background checks, even if the list is not now certified.

Mr. Gunn said he did not withdraw his second, because he is concerned about top candidates thinking that Maplewood is not hiring; he is concerned about the impact on the police department if this leads the best candidates to take jobs elsewhere, for example.

Palkovich stated that she has no problem with three, but not four, because of how important it is to resolve the Banick position.

Gunn suggested that the commission might table the motions until after discussion of the Banick matter. There seemed to be general agreement on this.

Appointment of Acting Sergeants

The commission members asked if this can be done without the preceding, tabled item first being resolved. Thomalla explained the suggestion is to take two patrol officers and make them acting sergeants for a certain period of time. He wanted to inform the commission that he was doing this, in order to alleviate overtime costs due to the overwork of the full sergeants on the force. He does not yet have a list of candidates, but is looking into it.

Commission Action with respect to Elimination of Deputy Police Chief Position

At their emergency meeting in late December, the commission had requested that the city appoint counsel specifically for the commission, to help them navigate the legal issues surrounding the dismissal of Deputy Chief Banick as part of the reorganization approved with the budget in December. At the time, the commission gave the city a list of possible attorneys acceptable to them, and the city was going to choose one from the list. After making contact with one of the potential lawyers, the city changed its mind and decided not to hire counsel for the commission, Gunn explained. He asked City Attorney Kantrud if his impression was correct.

Kantrud said both he and Charles Bethel were present, himself as representative for the city on criminal and general matters, and Bethel for employment matters in specific.

Bethel said that yes, they initially had agreed to appoint an attorney, but that decision was changed. He had a brief statement to read into the record. In short, the city believes the commission is without authority to review any aspect of the reorganization. If Banick sues the commission to force it to intervene, the city will defend the commission's refusal to intervene. Otherwise, they don't want to provide counsel, and the attorneys are just here to observe.

Palkovich believes very strongly that the commission does have power under statute 419.05 to do what she is about to propose. We have had enough time to discuss this, we have certainly looked at this statute many, many times, to be sure that we understand what it says, she said. The members of the commission have not had a collective discussion, due to the open meeting law, so they haven't had any dialogue on how this works exactly, in this unusual situation.

So she drafted a motion in writing that she wished to propose. Based on the assumption that 419.05 gives the Police Civil Service Commission absolute control over all officers and employees in promotion, employment, discharge, and suspension, she moved that Banick should be reinstated, demoted to the position of lieutenant, with back pay to January 1st, and his current salary should stand.

Palkovich opined that she can't imagine that anyone would go against this action by the commission, given a statute as clear as this.

Birkholtz offered a second.

Gunn invited Mr. Fowler (attorney for Banick) to address the motion. Fowler said Banick will not oppose the motion, and will certainly come back to work as a lieutenant. It does not alleviate their entire lawsuit against the city, but it is “a step in the right direction.” Fowler described what the judge had said at the hearing in January, at which one commission member (Palkovich) was present, and emphasized Judge Mott's legal finding of a high probability of success for Banick's lawsuit, particularly with respect to the law's clarity on the role of the Police Civil Service Commission, which the city had wrongly subverted.

Mr. Fowler also wished to read some correspondence into the record. He asked permission of Chairman Gunn, who asked if it related to this issue, and Mr. Fowler said that yes it does. It was a letter from the state lodge of the Minnesota Fraternal Order of Police, expressing great interest in this case and its impact on police officers throughout Minnesota and indeed the nation. It described the city council's action as “a direct subterfuge” harming all of the members of the Minnesota Fraternal Order of Police, and promised that the organization's full weight is ready to assist Mr. Banick in taking his case as far as necessary, because of how important it is for all police officers.

Ms. Palkovich said she thinks the commission is fully aware of the impact this has on all civil service.

Mr. Fowler then asked if he could be told where the commission is going. He does not wish to have his legal case have to involve the commission – he suspects that the motion before them at that moment was going to make this moot – but he wants to be clear. He suggested that (1) they could proclaim a decision like this motion, or (2) they could join his case as a plaintiff (to sue the city for declarative judgement), or (3) do nothing, and thus have to be added as a defendant (since the judge had told him that without the commission being a party to the suit, he could issue no decisions about their role in the matter).

Palkovich said that, in effect, Mr. Bethel's point was that they have to wait to be sued in order to get legal advice from the city. “To me, that's not a good use of the citizens' money or the courts' time.” Birkholtz strongly agreed, and amplified Palkovich's earlier comments stating that the commission is clearly not asserting control over the city's reorganization, but rather its control over the specific personnel decisions in the police department – decisions that state law explicitly takes out of the city's hands and gives to the commission. The city can eliminate the position, but cannot chose the individual to be removed.

Gunn drew on his past commission experience to discuss the history of the creation of the Deputy Chief position, and the role of the commission in approving the position and the selection of someone to fill it. “The whole process at that time was under the guidance of the civil service commission,” dealing only with officers, using an internal promotion list, which ultimately became one person – John Banick. Nothing in the minutes indicated an understanding at that time that if someone stepped out of the position of lieutenant and became deputy chief, that he would forgo all of the civil service rights he had enjoyed in the past as a lieutenant. The city did not tell them at the time that an individual who accepted the job would lose their civil service protections. Theoretically, what happened now could have taken place six months later, or three years later, if not today. He reflected upon that, in deciding why he will support this motion today.

On the question of returning Banick as a lieutenant, Gunn was not sure that this was identified as a specific remedy. But he looked back to Chief Collins, who was demoted; Collins did not go back to Lieutenant, as he had never held that position, but rather returned to the position of sergeant, which he had held before being named chief. The Minnesota Court of Appeals heard an appeal of that decision; but the city supported the commission's decision to do that – the notion that if someone is removed from a position but not terminated, they go before the commission, which reviews their status, and then returns them to a previously held position. So Gunn concluded that the motion Palkovich made today is perfectly consistent with what has happened before in Maplewood, and affirmed by an unpublished Court of Appeals decision. The commission has the authority to fashion a remedy that fits the situation.

Finally, he wished to address some of Fowler's comments. The union has become very strong over the years, but at one time it was not the unions that protected officers, but the civil service commissions throughout the state. What has happened over a period of time is that the authority strongly provided in the statutes was put there to protect police officers, even as recently as the minutes of the 2001 meeting in March, so that only for reasons related to performance could their jobs be affected. Certainly unions have developed an increasingly important role, but he wanted to highlight this historic role of the commission.

Having thus explained his decision to support the motion, he called for a vote. All voted aye.

Gunn said that he would write up a document stating this reasoning, for all of the commission to sign, to record their findings in advance of the minutes of the meeting and so forth.

Palkovich spoke about the importance of open meetings, and the importance of citizens knowing what is going on and how it's going on. She requested, because of how these meetings are now being recorded, that a city attorney now be present at all of the commission meetings in the future, to help them make sure that they are properly respecting privacy concerns and so forth.

Mr. Kantrud said he would bring the request back to the city manager, and voiced basic agreement with Palkovich's concern. He suggested that either he or Mr. Bethel might be the person to attend.

Returning Business: The List

Birkholtz withdrew her motion not to certify the list. This left no motion pending. Gunn asked Palkovich if she wished to renew her motion, and she did. Birkholz seconded the motion to approve the officer eligibility list, all members voted aye.

Last Item: “Other”

Nobody had other business to bring up.

Adjourned, 7:51 PM.