HomeMy WebLinkAbout02-05-1996 Executive Session BOARD OF PUBLIC WORKS AND SAFETY
OF THE CITY OF JEFFERSONVILLE, INDIANA
MEMORANDUM OF EXECUTIVE SESSION
MONDAY FEBRUARY 5, 1996
Mayor Thomas R. Galligan called the Executive Session to order at
10~40 a.m., and on call of the roll those members present were Mayor
Thomas R. Galligan, Safety Director Anthony Harrod, Planning and
Development Director Jim Urban.
Also present were: City Attorney Anne Marie Sedwick, Attorney Mike
Forsee, Fire Chief Mike Smith, Assistant Fire Chief William Davis,
Fire Fighter Tony Decker, Fire Fighter Joe Lee, Clerk and Treasurer C.
Richard Spencer, Jr., and Clerk Alice Davis.
TOPICS OF SESSION (RE:IC 5-14-1.5-6.1)
Individual's: Status as Employee-Grievance
Attorney Mike Forsee introduced himself Attorney at Law, office at
408 E. Court Avenue, Jeffersonvllle, Indiana. Attorney Forsee stated
that he is appearing before the Board of Public Works today
representing Joe Lee who is an employee of the City of Jeffersonville
Fire Department. I will try to bring you up to speed as to why we are
here. This action originally arose all the way back in July 1995.
Shortly thereafter Joe filed a grievance, a first step grievance with
the Fire Department. He alledged that on the 25th day of July, 1995
certain individuals within the Fire Department were promoted,
specifically Dennis Dlerking being promoted to the rank of Lt., Tim
Conlen promoted, I am sorry Dennis Dlerklng promoted to the rank of
Lt., requested and went through the necessary steps outlined by the
grievance proceedures that were in effect with the Fire Department.
Thereafter, he requested again to proceed to the grievance proceedures
a hearing before the Board of Public Works back in July. Finally
today we are here for one thing the July meeting. There was a letter
sent to Joe back on September 26, 1995 by the then City Attorney Mr.
Gillenwater basically telling him that Mr. Gillenwaters opinion that
this was not a legitimate grievance and that he took it upon himself
to advise the Board of Public Works that they should not hear the
grievance. Thereafter and on or about December 1995, December 4,
approximately one month before His Honor took office, there were
further promotions within the Jeffersonville Fire Department.
Specifically Joe filed a grievance again due to the fact that certain
individuals were promoted to the rank of Lt. basically alledging the
same items that he had alledged in his July 1995 grievance, we are
also here on that. Joe also alledges that by promotion beginning back
in 1992 none of the Officers promoted have any degrees in the area of
Fire Fighting, none has been certified as fire instructors. Two of
the individuals has less rank seniority then him, and one of the
individuals has less department seniority then him. Now, while I will
acknowledge that normally personnel decisions is left to the Fire
Department and or the Chief and or the Assistant Chief as the case may
be. This is a little bit different situation in what we have here, as
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for as I am concerned what here and had in July 1995, and also had in
December 1995 or some policies that were hosted and enacted by the
Fire Department and specifically on January 4, 1992 there was a
document which I have attached to my petition E that was entitled
Department of Fire, Jerry Dooley, Chief, City of Jeffersonvllle,
Raymond Parker, Mayor and it was addressed to all the personnel within
the department and the subject had to do with certain rules and
regulations, and more specifically there was item #7 that stated that
promotions that will be made on a combination of factors, seniority,
schooling, attitude, able to get along with other people, and then it
says etc, what ever that means, no percentage in no special order and
final decision will be made by Lt. Col. James and Chief Dooley. Once
that was posted, its our feeling that any miminum of the Department
should have followed their own rules and regulations. Mr. Lee
immediately filed his grievance in July, immediately filed his
grievance in December, arising out of what we felt was a violation of
these rules and regulations. In this instances to complicate matters
further, there was a meeting on the 5th day of December, 1995 before
Lt. Col. Butch James knew at that point and time was acting as
Assistant Chief that meeting arose out a grievance that was filed by a
Fire Fighter Dennis Frantz and with the purpose of discussing the
grievance filed by Dennis Frantz and regarding the certain promotion
proceedures that were being used by Jeffersonvllle Fire Department.
During that meeting Mr. James specifically stated that when confronted
with the standards that were supposed to be used basically stated that
"we Just promote people who we want to" and thats a direct quote. I
filed with this affidavit by Sam Veals with the Jeffersonvllle Fire
Department, Tim Conlen, Donnie Frantz, Tony Decker, and my client
verifying that in fact that statement was made, and we believe that
statement and statement alone basically shows that the then Chief and
or Assistant Chief were totally ignoring their own rules and
regulations. Now while that may true that there is no obligation on
behalf of the Fire Department to establish rules and regulations
regarding promotions and so and so forth. And once they do it is my
opinion that they should follow those rules and regulations in other
words there is a purpose in putting the rules and regulations You
don't have to be a mental giant to take a look at the date the rules
and regulations were enacted January 4, 1992 and then take a look at
what happened in July 1995, and December 1995. Joe was we believe
totally and wrongfully denied a hearing before this Board back in July
simply because there are very specific grievance proceedures that were
set out and very simply those grievance proceedures said say, one
should meet with the Chief and one should meet with the Union rep. the
next step your suppose to do is to file a Grievance with the Board of
Public Works and then the language in the grievance is mandltory and
it says that the Board of Public Works shall hear grievance,
therefore, we believe that some fundamental rights were violated and a
denial by the Jeffersonvllle City Attorney of a hearing timely
requested back in July 1995. Now, Joe also attached to his complaint
a letter, one by Capt. William Davis regarding his work ethic and his
performance as a fire fighter, and one by Donald R. Murray a Capt.
also regarding Mr. Lees work ethic and his background as a fire
PAGE 3
fighter. The fact as the matter is when you look at again this rather
negligeous January 4, 1994 rules and regulations under promotions it
is clear to me that, one, Joe certainly qualified under the first item
senlorty and he also qualified under the second one being schooling,
attitude and able to get along with other people. I don't know
whether he qualified under etc. very simply it was alledged by Joe
whether or not this was true or not true, he honestly felt, one, he
was never given any subject Justtificaton whatsoever as to why he was
passed up for promotion, he was basically told that we 3ust promote
who ever we want to, which I do not believe is subject, the reasons to
having these regulations its notice to your employees prior notice to
your employees of what your going to expect, what we are going to do
those are sub3ective in other words, if you get your schooling and if
you get along with other people and if you better yourself in the Fire
Department therefore these are the things we are going to look at and
these are the reasons we are going to promote you. I do not argue at
all with seniority, schooling, attitude, able to get along with other
people, thats grounds to promote an individual. What I do argue with
is that what ever reasons those grounds were totally ignored. They
would have been better off if they would not had said anything, they
wouldn't have published anything, if they would have not said nothing
about it, which I sure its been done in the past but, once you post
these items and you publish them to your employees those are
guidelines for your employees to what their suppose to do. Very
simply, Joe has been on the Fire Department for 11 years, he is State
certified in certain areas, he has more seniority and there has been
absolutely no reason, no explanation whatsoever, as a matter of fact
Mr. Gillenwater stated in his letter "no explanation is owed to you"
based on certain Indiana statute and I don't argue with Mr.
Gillenwater regarding that point except, except in addition to the
Indiana statute, I would be willing to bet you anything that the
Indiana statute certainly were not posted in the Jefferosnvllle Fire
Department but, the rules and regulations from January 4, 1992 were.
And the rules and regulations you can read, the statute but you can
take the rules and regulations if you post them and certainly they
have a right to post them and certainly they did in this instance and
they will take presidence over the rules and regulations. We simply
believe that be honest with you these promotions in July and the ones
in December were not made in compliance with the rules and regulations
and really should be set aside. More specifically we believe that
based upon what has been filed here and based upon the record
certainly there is no reason that Mr. Lee should not have been
promoted to the rank of Lt. in July and specifically should not have
been promoted to the rank of Lt. in and or in December because he does
fit all not Just one,not Just two but all of the criteria set out for
promotions within the Department. Finally Joe did specifically
alledged that he believed that he had been passed over several times
and the only reason he could come up with because nobody gave him a
reason was because of his either political affiliations, differences
with the powers to be at that point in time, and or his affiliations
with certain individuals on the Fire Department which believe me are
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certainly are not grounds to not to promote him. In summary very
simply we believe one, by not getting a timely hearing back in July
1995 he had been damaged simply because he was wrongfully denied a
hearing regardless of what the out come of that hearing may have been,
we don't know what the outcome of that hearing may have been because
he was denied a hearing and was denied wrongfully and he did what he
was supposed to do, he Jumped through the necessary loops under the
agreement proceedure he has specifically alledge the reasons in his
mind that he was not promoted~ he is specifically alledged his
schooling, his background within the Department has presented you
affidavits baslflcaly stating we will promote whoever we want to
promote perioid giving no reason whatsoever and finally given to you
some information from Capt. Davis information from Capt. Murray for
whom Mr. Lee has worked the entire time he has been on the Fire
Department. And therefore specifically we are requesting that he be
promoted to the rank of Lt. that the promotions in July and December
1995 be set aside in their entirty and redone again. And basically
thats it.
Attorney Forsee asked, Joe do you have any thing to say? Joe
said my problem was everytime I went back to Chief Dooley and Deputy
Chief James I would ask them what reason was I turned down, I have
more schooling, I have attitude, I have seniority and they would tell
me that you are one of our finest Sgts. which is one step below
Lieutenant, I said, what do I have to do for you? You don't have to
do nothing, Just keep on doing what you are doing, you are doing a
fine Job. Then they promote somebody else, so after the process kept
going on, kept going on, and our Union President Tony Decker was in
the room, and they would Just say, well you know we Just don't have to
answer, we don't have to answer you. So I went through this grievance
process and I requested a meeting with Chief Dooley, and twice Chief
Dooley, it says in our policy you shall be entitled to meeting with
Chief, twice Chief Dootey turned me down, and Union President Tony
Decker will verify that we had Pee Wee Lakeman to make Chief Dooley
give me a meeting, and when we had that meeting we were in there I
told the Chief that we are not getting anywhere here, and I would like
to go on to the next step and request a meeting with the Board of
Public Works, and Chief Dooley's response was, we do have a problem
now because you don't need, your not going to the Board of Public
Works. And so I asked for a meeting, twice we got put on the Agenda
and twice we got taken off of the Agenda. And it doesn't say you can,
or it doesn't say you can meet with the Board of Public Works if we
PAGE 5
feel like you got a grievance, Mr. Gillenwater stepped in and said, I
feel like you don't have a grievance and you shall not have be
entitled to meet with the Board of Public Works. And I felt like that
was wrong and he told me over the telephone when I had correspond with
him that if you want to meet with the Board of Public Works you'll
have to meet us in court, and thats what he said. I felt like that
was a terrible way for him to act you know he wouldn't even follow
proceedures that were set by the Board of Public Works that I felt was
normal. Attorney Forsee said we also have the Union Officer present
here is Tony Decker, is that correct Tony? Tony answered, yes.
Attorney Forsee, and what is your position with the Jeffersonvllle
Fire Department at the present time, your rank and other positions
that you hold? Tony answered, Pvt. and President of Local Fire
Fighters for Jeffersonville Fire Fighters, Attorney Forsee asked, how
long have you been President of the Local Jeffersonville Fire
Fighters. Tony answered, 2 1/2 years. Attorney Forsee asked, as a
President of the Jeffersonville Local Fire Fighters is it your normal
duty to attend a brief gte±vance hearing on behalf of employees? Tony
answered, yes. Attorney Forsee, and had you in the past and
specifically since July 1995 have you had occassions to attend any
grievance proceeding regarding Sgt. Lee? Tony answered, I have
attended all grievance proceedings. Attorney Forsee, did you attend
the one in July or August 19957 Tony answered, yes. Attorney Forsee,
did you also attend a meeting specifically on December 5, 19957 Tony
answered yes. Attorney Forsee, and was that meeting with Lt. Col.
Butch James? Tony answered, yes. Attorney Forsee, was he acting as
Assistant Chief at that point and time? Tony answered, yes. I
believe that being the rules of proceedure filed by Donnie Frantz, is
that correct? Tony answered Denny Frantz. Attorney Forsee, Denny
Frantz, is that correct? Tony answered, yes. Attorney Forsee, was if
you recall was Lt. Col. James confronted with a policy regarding how
the promotions were being made? Tony answered, yes. Attorney Forsee
asked, to the best of your knowledge what did he give a reason as to
why the promotions were made? Tony answered, his sole reason was that
they promote who they wish to promote. Attorney Forsee, were you
present at any point and time when Joe was told by the Chief or
requested the Chief or Assistant Chief to hear a grievance? Tony
answered, I am the one that actually requested the meeting. Attorney
Forsee, were you ever told by the Chief or Assistant Chief that you
weren't going to have it? Tony answerd, yes. Attorney Forsee, were
you given a reason? Tony answered, the Chief's reason was that he's
heard it before. Attorney Forsee, and you are aware as a Fire
Fighter, I am assuming of these rules and regulations regarding
promotions, are you not? Tony answered, yes.
Attorney Forsee, how long have you been on the Fire Department?
PAGE 6
Tony answered, 4 years. Attorney Forsee, asked if anyone had any
questions? Tony said as for as the Local our main purpose is to see
that all policies and proceedures are followed according to the way
they are written. And in Joe's situation we Just for the simple fact
were wanting to know more information on why he has been denied. The
whole Justifications been we don't have to Justify anything that we do
at this point. Its not in writing and so we don't have to Justify it.
So we asked for a criteria how they based their decision on. They
don't have to Justify criteria, or how they even make them. All they
say they have to is to Justify or they don't have to Justify anything
more or less. And weve never been given any information, specifics or
anything called rules and regulations to help the situation out.
Attorney Forsee said that this July 4 , 1992 document from Chief
Dooley and City of Jeffersonvllle. Mayor Galllgan said that is was
January 4, 1992. Attorney Forsee said thats right January 4, 1992
entitled rules and regulations was posted within the Fire House
Department was it not? Tony answered, yes. Attorney Forsee asked to
the best of your knowledge do you believe from 1992 up until January
1996 best of your knowledge do you believe has this ever been
rescended, has it ever been overridden, has it been changed? Tony
answered, no. The reason they posted the rules and regulations.
Chief Dooley said specifically said they wanted to post their own
promotion policy and go by that. And this is what their policy
consisted of he gave us options to rewrite the policy but all he
wishes, he more left the same policy in there and a few words added,
but it still wants sole authority on making the decisions, and didn't
want any Justifications or certain percentages. Mayor Galligan asked
Did anyone ask him why he didn't delete all the way down past etc., no
percentages and in no special order, he Just put down final decision
will be made final by Lt. James and Chief Dooley instead of going
through the other stuff. Did anybody ever pose that question? Tony
answered we asked him and he Just said thats what was recommended to
him for the policy. Mayor Galligan asked and he feels like the final
sentence overrules the rest of them, is that what his interpretation
was? Tony answered, yes. As for as the grievance proceedure we tried
going through every legal means the way the policy was written, we
went through City policy, grievance proceedure and Department Policy
and being denied, first we were denied meetings and then we informed
the Chief he has violated the Policy. So then agreed to that and the
next was the Board of Public Works and we were adventually denied that
twice by the City Attorney's recommendation. As for as the Local,
Local has been pursuing mainly for the fact that proceedure wasn't
followed as for as City Ordinance Policy and grievance proceedure and
that was our main contention as for as pursuing this, we don't have
any wait as for as this decision on actually how the Policy is done,
the decision on the Policy. But as for as proceedure that is our
mainly what we are concerned with as for as all proceedures the way
they are written, the way it is in writing. Attorney Forsee said he
wants to add that there is a reason to have a grievance proceedure and
PAGE 7
the reason you have a grievance proceedure is very simply is one I
believe that in the way this is set up one is to bring the problem
before the Chief and or the Assistant Chief and two is provide some
means of mediation and or negoations regarding the matter, and three
is to certainly is to certify a certain proceedures that you feel are
not being followed by the Jeffersonville Fire Department enough with
not being done to which means the results of the grievance request was
we can promote anyone we want to. and I would submit simply the law is
that if you have paragraph and or items that are parshly specific,
parshly not specific, specific overrules not specific and I belive
that its not an error and it not accident that it was put in here,
senority, schooling, attitude that telling your Fire Fighters what
they are expected to do in order to obtain increases in rank and those
three items are legitimate things to tell them, its an lncentative to
do what you need to do, but if you turn around and ignore them your
not sending a real good message to your employees, and they were
ignored. Mayor Galligan asked Tony were you in the meeting when they
said why they were turning him down? Tony answered, yes. Mayor
Galligan, and the reply was everything is fine and keep doing what
your doing? Tony answered, yes. Mayor Galligan they did not
specifically say that you don't get along with people? Tony answered,
there was no negitative critism as for as why he was not promoted.
Mayor Galligan, they didn't say you can't get along with anybody, you
have trouble getting along with anybody? Tony answered they didn't
say that. Mayor Galligan, they didn't say you don't have enough
schooling, they didn't say you don't have enough senority? Tony
answered, one thing they did say was it wasn't your time yet, and Just
keep doing what you've been doing and adventually you'll get that
promotion. City Attorney Sedwlck asked if that came under ect.? Tony
said as for as any written. Mayor Galligan, you wittnessed them
saying he's not, they never said anything specifically why you did not
get it? Tony answered, no. Jim Urban, they also never added any
thing that we needed to do to improve himself so that he would be
promoted? Tony answered, no suggestions whatsoever as for as how to
get this promotion. Joe Lee, said he asked them what can I do to get
this promotion, and they said that you are doing Just fine, keep it
up. Attorney Forsee, Joe do you have any advanced degrees in
firefighting? Joe, I've got three or maybe four masters degrees which
is the highest level that you can get in the Fire Service, Master Fire
Fighter Strategy, Tactics, Management and Instructor. Attorney
Forsee, of the five individuals promoted to Lts. since 1992 does any
of them have degrees in any area of fire fighting? Joe answered, to
the best of my knowledge, no. Attorney Forsee, are any of them State
Certified Instructors? Joe, answered, to the best of my knowledge,
no. I asked Chief Dooley, I said what lncentative do you have to do
go to school and take some of these classes while the Masters classes
are eight day classes, and as Chief Smith, and Deputy Chief Davis,
PAGE 8
they have gone to them with me to, there long process, you go days you
work and days you don't work, it's a long envolved process, and I said
what incentatlve does a person have to do to take all these classes if
it don't get you anywhere all you have to do is to wait, wait your
turn and they would tell you, or whatever and thats very wrong message
they are sending. Mayor Galllgan, did they ever say what they based
the turn on, when it became your turn? Joe answered, no.
Mayor Galligan asked Attorney Sedwick if she any questions?
Attorney Sedwlck, not really we've talked before and I know the
situation and and puts this Board in the uncomfortable position of
trying to, an adversarial condition with somebody that the Board is
not adversarial with, and I've talked to Tony and I don't know if I've
talked specifically to Mike or not. The problem that the Board of
Public Works has at this point is, that assuming is that the motion of
the other Officers that were promoted when they were promoted they
rank became a property of interest that constitutionaly protected as I
am sure you know. When you were promoted your rank is
constitutionally protected. As long as they qualify at all under this
provision and I think etc. itself takes care of one to be taken care
of by the prior administration, probably loose enough that I agree
with Mike separate provisions is more specific, separate provisions
does override the general separate provisions, but this is all in one
provision and another option of the law is that you have to read
things together. This provision read together, as the Mayor pretty
much pointed out the first several sentances you might as well take
out because when you read the last sentance it says they can promote
whoever they want to, the final decision is to be made by Lt. Col.
James which he did. I don't think that the Board of Public Works has
any grounds to demote the other Officers from this perspective, from
the City's perspective right now, and unfortunately, fortunately
probably in the long run it the new administration but, this new
administration would be asking for a suit from the other Officers who
were promoted if they were demoted and the whole thing would be over
with then, whatever. Thats the horns of a delemina that we are on at
this point. I think that the Board all agrees with everything that
you said wholeheartedly, I think that the Board probably agrees that
you were wrongfully denied and certainly the most important one from
our perspective at this point really is the July grievance because if
you were granted your grievance proceedure then the December
promotions might not have ocurred in the way that they did, and that
might have been your time if you would have been granted your
grievance and the ability to have a hearing from the Board, the Board
in December when the promotions ocurred I am not sure how we can
address this now immediately, it would be helpful, as I would be happy
to hear from. But certainly we agree that and had a discussion with
Mike Smith the new Chief that agreed that the grievance proceedure is
to be followed and it will be followed in fact it maybe, I am hoping,
I am with the understanding theres going to be a much more objective
PAGE 9
standing in the future and thats going to be laid out in an more
objective policy for promotion, but thats not ocurred yet, I assume
thats not in the process at this point. I did some research and
theres one case in the City of Lawrence Indiana there was a situation
where he was a Fire Fighter no it was the Police was promoted and the
question was he promoted properly, I don't know I haven't read deep
enough into the case to know if it was the change of administration
kind of situation, he was promoted, no he was hired not promoted the
day before his 36th birthday you know that 36 is the age cut off. So
there was a case on that and the Court held that he was hired the day
before his 36th birthday so he was rightfully hired and they couldn't
undo the hiring because he did have a property in it and thats the
kind of situation that we are facing in this situation not that we
would that we would have been here 6 months ago to take care of this
problem. The remedy that you asked for I guess the thing is I don't
think the Board can give you without getting into a worse legal
situation, you know but certainly that I think that the Board would
like to do but we would have to go back into open session to vote on
anything.
I don't know if Mike wants to elaborate on what I said. Mike said
well I can't really elaborate to much on the past because I know past
policy are not for the victim. Attorney Sedwick, yes I think there
are probably lots of those. Chief Smith, said but under the current
policy as for as I am concerned I see no old age, race, female,
carried or not matters, but my concern is when the alarm goes off I
want people to fight back and the policy that I will present will
indicate that. Senority is not an important issue with me if you look
in to fire service and talk to a lot of instructors that have been
through fire services for years and years on Job training gets people
hurt in fire services, they are not out here putting up a fence and
slip and the fence falls down, or slip and come off a ladder and cost
a life and on the Job training with senority is the kind to be handled
is not a big issue to me, my issue is education and thats my purpose
of putting service contractural program together is to get the people
that want to be educated, I am going to open the door wide. It's my
responsibility to open that door to fund it, and when the people who
are educated in the Fire Service field, when they are out on the
alarms they can put that education to use. My priority is actually
flip flop to what there's is. On the 3ob training is not a priority
education. Myself and President Decker will put together something
that is very workable, but yet is in concrete and it will be presented
to you and that way we can clean up those that are not legally I you
know I can put stuff together but it's not a binding type thing and
you can clean her up and we will bring it before the Board and get it
voted on and from here on out that will be the proceedure we will
followed until then. Director Harrod made the motion to take this
under advisement in three weeks, seconded by Member Urban, and carried
unanimously.
PAGE 10
Chief Smith said he has one gentleman on this last promotion that was
promoted and he's not happy he took the promotion, he's wanting to
step down to his previous rank, which was Ma3or. Chief Smith is
requesting to have him go back to Capt. Mayor Galllgan said that this
is not a problem. Director Harrod made the motion to take this under
advisement in three weeks, seconded by Member Urban, and carried
unanimously.
I certify that the above-checked item(s) were the only subject
matter(s) discussed during this executive session and no vote was
taken.
Signature Date
Title