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HomeMy WebLinkAboutMinutes - Minutes - Personnel Board - Meeting Date: 3/28/2012 CITY OF GLENDALE PERSONNEL BOARD HEARING DAN DAVIS March 28,2012 @ 6:00 pm OPEN SESSION MEMBERS PRESENT: Ferne Ridley, Vice Chairperson Herbert Haley, Board Member Anthony Passalacqua, Board Member • Richard Westby,Board Member STAFF PRESENT: Jim Brown,Interim Human Resources Director Naomi Jackson,Human Resources Administrator Lorena Sanchez-Zumph, Human Resources Generalist WITNESSES: Dan Davis, Appellant Mark Burdick, Fire Chief OTHERS PRESENT: Nick DiPiazza, Chief Deputy City Attorney Thomas Griffin,Appellant Attorney Steve Cannon, Fire Captain Jackie Cole, Police Sergeant PSU Tom Cole, Acting Assistant Fire Chief Chris DeChant,Assistant Fire Chief Jim Higgins,Assistant Fire Chief Pat Martin, Fire Captain EMS Division Scott Phillips, Fire Captain Marcia Zientek, HR Management Assistant Donna Ford Terrell, RPR, RMR, RDR, CRR, Certified Court Reporter #50250, documented the record of the hearing. CALL TO ORDER AND ROLL CALL (Pages 4 -5) Fern Ridley, Acting Chairperson, called the Personnel Board Hearing to order at 6:11 p.m. on Wednesday, March 28, 2012. Roll call was taken. Board Members present were: Ms. Ferne Ridley, Acting Chairperson; Mr. Herb Haley, Board Member; Mr. Richard Westby, Board Member; and Mr. Anthony Passalacqua, Board Member. The Appellant, Dan Davis, was represented by his attorney, Mr. Thomas Griffin, of Robaina & Kresin PLLC. Mr. Nicholas DiPiazza, Chief Deputy City Attorney, represented the Respondent, City of Glendale. Dan Davis Personnel Board Hearing Minutes March 28,2012 Page 2 ORDER OF PROOF (Page 6) The reading of the Order of Proof was waived by the Appellant's Attorney and the Respondent's Attorney. PURPOSE OF HEARING The purpose of this hearing was to take testimony in the matter of the disciplinary appeal requested by Dan Davis, Fire Program Administrator, regarding his termination. On December 13, 2011 this employee was served with a Notice of Intent to Terminate Employment. On December 28, 2011, the employee received his Notice of Termination of Employment. Mr. Davis' suspension from his position as a Fire Program Administrator was based on his violation of City of Glendale Human Resources Policies and Procedures. Specifically, he demonstrated conduct unbecoming of a City employee when he engaged in verbally abusive language and inappropriate conduct toward female members of the Buckeye Fire Department on November 5, 2011 during a charity golf event. Further, he also demonstrated unbecoming conduct when he chose to participate as a candidate for the Fire Battalion Chief while participating in the development of the tactical test portion of this recruitment. His actions compromised the integrity of the test process resulting in revisions having to be made to the test. His actions constituted major performance deficiencies in violation of City policy and negatively impacted his department's operations. BACKGROUND The following incidents document Mr. Davis' substantiated performance deficiencies: Incident No. 1 On Tuesday, November 8, 2011, the Fire Chief received a complaint of inappropriate conduct against Mr. Davis from the Buckeye Fire Chief. According to the Chief, two of his female employees were offended by Mr. Davis' behavior toward them during a Buckeye Firefighter Charities Golf Tournament. This event was held at the Sundance Golf Club in Buckeye, Arizona, on Saturday November 5, 2011. An investigation into this matter was conducted by the City of Glendale Human Resources Department. Investigative findings substantiated allegations against Mr. Davis of conduct unbecoming of a City employee. According to the complainants Mr. Davis and another member of his golf party harassed their foursome throughout the golf tournament. They stated Mr. Davis made inappropriate comments of a sexual nature towards them and were verbally abusive. Witnesses corroborated he referred to them as "bitches,"told them to "Sit down bitches, shut up bitches," yelled out "Fucking play best ball!" and at one point said to one of the female employees, "Hey Blondie, show me your tits!" This employee became so upset -2- Dan Davis Personnel Board Hearing Minutes March 28,2012 Page 3 that she contacted her husband, a firefighter with the Phoenix Fire Department and a participant in this event,who later confronted Mr. Davis. The Fire Department General Orders requires employees to promote a positive, productive atmosphere of self discipline. As a Fire employee Mr. Davis was required to refrain from conduct that would cause embarrassment or disgrace to the City of Glendale, the Glendale Fire Department and his co-workers. The City of Glendale Human Resources Policies and Procedures set appropriate boundaries in the workplace which prohibit intimidating,hostile, and offensive behavior. Further,the City regularly provides training to make employees aware of what constitutes such behavior and cautions employees against such misconduct. As a trainer, a leader and a member of the Fire Department management team, Mr. Davis crossed the lines of propriety established by City policy. His actions constituted major performance deficiencies in violation of City policy. Incident No. 2 The week of October 10, 2011 a Deputy Fire Chief requested Mr. Davis' assistance with the development of the tactical portion of the Battalion Chief Recruitment test process. Mr. Davis agreed to help and on October 17, 2011 the Deputy Chief contacted him to give him the location of the camera containing the pictures to be used in the tactical simulation. On Thursday, October 20, 2011, Mr. Davis met with the Deputy Chief and communicated he was having problems with the simulation software, but stated there was simulation software at the Training Center that would work. On Sunday, October 23, 2011 Mr. Davis met with the Deputy Chief to talk about the pictures/simulation for the test process. The Deputy Chief was working on the materials used to develop the test scenarios. He used colored sharpies that Mr. Davis brought to mark where he wanted smoke on the photographs that would be used. After this he gave Mr. Davis a copy of the entire tactical process, including the benchmarks. On Wednesday, October 26, 2011, Mr. Davis met with the Deputy Chief again and discussed the slides, the scripts, and the role plays. The Deputy Chief also communicated to Mr. Davis at this time that he had expressed to Chief Higgins that he would make a good evaluator in the Battalion Chief process. On Friday, October 7, 2011, a memo went out to all Fire Department personnel explaining the Battalion Chief Promotional process. This document explained that the application process would be open October 10 and close October 21, 2011. It stated further that the testing dates for this process were anticipated to begin the week of December 5 and may continue through the month of January 2012. As indicated, the posting for this position was opened on Monday, October 10, 2011, the same day Mr. Davis agreed to assist the Deputy Chief with the development of the tactical portion of the test process. On Friday, October 21, 2011, Mr. Davis submitted his application for Fire Battalion Chief. Despite having agreed to help with the development of this test process and three subsequent meetings with the Deputy Chief, Mr. Davis failed to disclose to him or any member of his management his interest in the Battalion Chief -3- Dan Davis Personnel Board Hearing Minutes March 28,2012 Page 4 position or the fact that he had submitted an application and was a participant in this recruitment process. Mr. Davis' failure to communicate his participation as a candidate in the Battalion Chief process, after participating in the development of the test material, compromised the integrity of the process and the tactical portion of the test had to be redone. As a leader and trainer in this organization Mr. Davis was aware of the City's communication competency which expects employees to communicate in an open, honest, respectful and timely manner with others. It further requires that employees provide timely information to others involved in projects and leadership roles. Mr. Davis' failure to adhere to these guidelines demonstrated poor decision making and poor judgment. Although he had ample opportunity to disclose his intent to participate in the process, he chose not to do so. Mr. Davis' actions are not the standards of performance expected of one in a position of leadership in the Glendale Fire Department, especially given the many years of experience Mr. Davis has in Fire Management and his extensive knowledge of the work involved in developing these recruitment processes. His actions directly negatively impacted the Battalion Chief process. POLICY VIOLATIONS Mr. Davis' actions demonstrated major performance deficiencies in violation of the following Human Resources Policies & Procedures, as well as Glendale Fire Department General Orders: HUMAN RESOURCES POLICIES AND PROCEDURES: No. 504—Employee Conduct, Section I PURPOSE Employees shall at all times conduct themselves in a way that reflects favorably on the public they serve. The City upholds, promotes and demands the highest standards of ethics from all of its employees. Employees should maintain the utmost standards of personal integrity, truthfulness, honesty and fairness in carrying out their public duties, avoid any improprieties in their roles as public employees, and never use their City position or power for improper personal gain. All employees are expected to respect and comply with all federal, state and local laws, including all municipal policies, rules, regulations, directives and procedures. No. 513 —Disciplinary Policy, Section II.E.2 Major Deficiencies These are acts that involve questions of trust or honesty, constitute a threat to the orderly City operations or pose a threat to the health, welfare or safety of employees or other individuals. -4- Dan Davis Personnel Board Hearing Minutes March 28,2012 Page 5 • Conduct unbecoming of a City employee ➢ Abusive attitude, language or conduct,toward employees or the public ➢ On or off duty conduct which may bring discredit to employees of the City ➢ Abuse of authority over employees or the public GLENDALE FIRE DEPARTMENT GENERAL ORDERS: Fire Department Employee Conduct No. 102.09 PURPOSE To promote a positive, productive atmosphere of self discipline and clearly define behavior that is consistent with the organizational expectations of the Glendale Fire Department. As a leader in the fire service, the Glendale Fire Department believes that it is incumbent upon our employees to behave in an exemplary manner, socially, ethically, and morally. We are responsible to the citizens of Glendale and therefore must never breach the public trust. POLICY The Glendale Fire Department expects ALL employees to respect fundamental human rights, to treat their co-workers fairly and with respect. There is also an expectation that all employees exercise good judgment and conduct themselves in a positive and productive manner. Professionalism: We will carry out our mission with the highest standards of professionalism while both on and off duty. This includes treating fellow firefighters, citizens, and other professionals with the utmost dignity and respect. Refrain from conduct that would cause embarrassment or disgrace to the City of Glendale, the Glendale Fire Department, and your co-workers. RESPONSIBILITY All employees of the Glendale Fire Department are prohibited from engaging in conduct resulting in, or leading to, any of the following: Assault, Endangerment, Threatening Behavior: Intentionally using words or actions to provoke or encourage others to violent or retaliatory behavior, or other acts of misconduct or hazing. Discriminatory Harassment: Making remarks, placing visual or written material, and/or through ones specific actions aimed at a specific person or group that demean their race, gender, marital status, veteran status, religion, creed, disability, national origin, ancestry, or age with the intention of causing harm to the person or group. -5 - Dan Davis Personnel Board Hearing Minutes March 28,2012 Page 6 CITY'S OPENING STATEMENT (Pages 11 - 15) Nicholas DiPiazza, Chief Deputy City Attorney, representing the Respondent, gave the City's opening statement. APPELLANT'S OPENING STATEMENT (Pages 15 -22) Thomas Griffin,Appellant Attorney, gave the opening statement for the Appellant. CITY PRESENTATION (Pages 22–47,79 - 90, 106–119) Nicholas DiPiazza, Chief Deputy City Attorney, representing the Respondent, presented the City's case. The following witness was called to testify for the City. The witness was sworn in. Mark Burdick, Glendale Fire Chief(Pages 22–90) APPELLANT'S PRESENTATION(Pages 47- 74, 90– 106, 119 - 120) Thomas Griffin, Appellant Attorney,presented the Appellant's case. The following witness was called to testify for the Appellant: The witness was sworn in. Dan Davis, Appellant(Pages 90 - 129) CITY CLOSING ARGUMENTS (Pages 130 - 140) APPELLANT CLOSING ARGUMENTS (Pages 140 - 144) CITY FINAL ARGUMENTS (Page 145) . EXHIBITS Nicholas DiPiazza, Chief Deputy City Attorney, representing the Respondent, and Thomas Griffin, Appellant Attorney, entered into a stipulation and agreement with respect to exhibits. All of the City's exhibits, those which were listed under tab one (1) through five (5), A through J, and numbers 6, 7, and 8 were admitted into evidence without objection. The Appellant's exhibits, one (1) through thirty-eight (38) inclusive, were also admitted into evidence without objection. With respect to Appellant exhibit thirty-nine (39), the City objected to it being entered into evidence. Nicholas DiPiazza, Respondent Attorney, objected to this exhibit on a number of grounds. He stated the exhibit purports to be an "Arizona Republic" article that appears to have been downloaded from the Internet. He stated first it was irrelevant; second, it's double hearsay, not just hearsay; and third, it's remote—stale, over ten years -6- Dan Davis Personnel Board Hearing Minutes March 28,2012 Page 7 old. Mr. DiPiazza articulated each of his three reasons for his objection and why this exhibit should not be entered into evidence. Mr. Griffin presented his arguments as to why the exhibit should be entered into evidence. After hearing from both parties, the Board sustained Mr. DiPiazza's objection and stated exhibit 39 would not be entered into evidence. PERSONNEL BOARD RECOMMENDATIONS The Personnel Board deliberated the testimony and voted in Open Session. Question No. 1 (Page 145) Acting Chairperson Ferne Ridley called to entertain discussion and called for a vote on item number one (1): Was the action of the Appointing Officer based on political, religious or racial prejudice? No discussion was held by the Board regarding this question. All members present voted no--The action of the Appointing Officer was not based on political, religious or racial prejudice. Question No. 2 (Pages 145 - 146) Acting Chairperson Ferne Ridley called to entertain discussion and called for a vote on item number two (2): Did the City follow its policies and procedures that provide employees with the right to appeal certain disciplinary actions? No discussion was held by the Board regarding this question. All members present voted yes--The City did follow its policies and procedures that provide employees with the right to appeal certain disciplinary actions. Question No.3 (Pages 146—147) Acting Chairperson Ferne Ridley called to entertain discussion and called for a vote on item number three (3): Did the Appointing Officer have just cause to take disciplinary action based on the stated violations of the Human Resources Policy? No discussion was held by the Board regarding this question. All members present voted yes--The Appointing Officer did have just cause to take disciplinary action based on the stated violations of the Human Resources Policy. Question No. 4 (Pages 147 - 148) Acting Chairperson Ferne Ridley called to entertain discussion and called for a vote on item number four (4): Does the Board sustain or not sustain the action of the Appointing Officer, based on the facts and information presented to the Board? No discussion was held by the Board regarding this question. However, Board Member Haley stated to the Appellant that the Board heard a lot of testimony and stated he has -7 - Dan Davis Personnel Board Hearing Minutes March 28,2012 Page 8 given a lot of service-33 years plus to the community. He stated it's clear Mr.Davis has a real talent and a passion and a love for being a firefighter. Mr. Haley stated that what happened with Mr. Davis has nothing to do with the drinking issue, but his decision- making and the things that happen with that. All members present voted to sustain the disciplinary action of the Appointing Officer, based on the facts and information presented to the Board. CONCLUSION BY THE CHAIR(Page 148) Acting Chairperson Ferne Ridley concluded the Board found the specific evidence presented at this hearing justifies the discipline administered in this matter and therefore voted to recommend the disciplinary action be sustained. The hearing adjourned at 9:25 p.m. Submitted by: Jim Brown Interim Human Resources Director -8-