News

Civil Service controversy reaches state level

The Civil Service Commission’s hot potato has reached the state Attorney General’s Office, and Tim Ford, the state’s open government ombudsman, has tossed it right back into the lap of the city.

Assistant Attorney General Ford was asked to offer an opinion on three non-noticed meetings that were attended earlier this year by the three-member commission (CSC) and city officials, including City Manager Brenda Bauer and City Attorney Jack Johnson.

In an opinion, Johnson said the meetings “appeared” to be lawful, but Ford has questioned that conclusion and recommends that the CSC and the city “redo” the meetings, and any actions taken therein,” in an open public meeting.

The request for Ford’s input came from Kim Hendrickson, the CSC’s former secretary/chief examiner whose job was terminated Aug. 12.

Since then she has filed a complaint with the city’s Ethics Board and a petition to have two of the Civil Service body’s three commissioners recalled for malfeasance in office and dereliction of duty.

The most injurious part of Hendrickson’s many charges against commissioners David Hand and George McKinney was that they (and the third commissioner, Robert Fernandez) attended the “special” meetings. She claims the meetings were used to reorganize the commission and, because she wasn’t part of the new process, her job was terminated.

According to Hendrickson, Fernandez, who has since resigned his post, wasn’t named in the complaint or recall petition because his action “was not a pattern like it was for the others.”

She said he came forward on his own and admitted wrong and he was also “told by the city attorney that attending the meetings were legal,” Hendrickson said.

The meetings in question were held in January and May after Hendrickson had expressed concern about a lack of resources. She made a request for office space and outside legal counsel, among other concerns regarding the police department and commission business.

The meetings in question were held in January and May after Hendrickson had expressed concern about a lack of resources. She made a request for office space and outside legal counsel, among other concerns regarding the police department and commission business.

The Ethics Board, which serves the city only in an advisory capacity, said the factors were “credible” and that it appeared the commissioners violated the transparency requirement of the Code Ethics. The board will address the issue during its Oct. 17 meeting.

However, Johnson issued a legal opinion in a memo to the council on Sept. 27 that said it didn’t appear that a violation occurred because the noticing requirements for a “special meeting” differ from a “regular meeting.”

Johnson wrote: “Although one may argue, as a matter of policy, that more or better notice ought to have been given for the meetings in question, based on the alleged and known facts, it appears that these gatherings of the members of the CSC did not violate requirements of the Open Public Meetings Act.”

The “special meeting” noticing clause requires only to notify all other members of the commission and any news organization with a written request for notice on file with the commission. He added  that no media groups had filed a required written request of notification about special CSC meetings.

Paula Fernandez (Robert’s wife), who was the CSC’s secretary/chief examiner fat the time, said there were requests.

According to minutes provided by her, commissioners Glen Tyrrell, Hand and McKinney  similarly violated the OPMA in June 2004, and she had distributed literature to them to ensure it wouldn’t happen again.

Paula Fernandez also said in a statement released on Oct. 3 that both the Bainbridge Review and Kitsap Sun newspapers had made notification relquests to be put on the her notification list.

Ford said none of that really matters

He wrote in response to Bainbridge Councilor Bob Scales that: “Regardless of whether a violation actually occurred at the disputed special meetings, the goal of having new meetings is to allow greater public participation consistent with the ‘spirit’ of the law. The added benefit is if there were legal flaws with the disputed meetings, then they may be cured by a re-do of the same actions in a subsequent meeting. In general, a re-do may provide a quicker resolution for disputes and potentially avert litigation.”

He said a redo would include the same topics as the previous one, but not have to replicate exact conversations. And it should not be a mere ratification.”

Scales had asked Ford “to summarize the ‘facts’ that formed the basis of his conclusions and recommendations.”

Ford said his role is to provide information and technical assistance on provisions of the OPMA, and his recommendation was not intended to be a conclusion of law regarding whether an actual violation occurred.”

Hendrickson said that a “redo would be better than nothing. Rather than a closed door meeting, let’s have public debate about the Civil Service Commission, our police department and the city’s role.

Meanwhile, as the city mulls its options, the Bainbridge Island Police Guild was quick to challenge the “new” CSC..

Scott Weiss, president of the guild’s executive board, has asked the CSC to remove the new “interim pro-tem” S/CE, Kate Brown, who is the city’s senior executive secretary and also serves as an HR analyst.

The complaint is that Brown has been involved in pre-disciplinary investigative interview of Guild members, cases tham may result in appeals to the commission.

Weiss said having a HR staff member involved is “inherently unfair and opposed to the principles of equity for the commission — as the city has chosen to direct their involvement in Guild member discipline matters.”

Civil Service Commission Timeline

• Nov. 19, 2010 – Civil Service Commission (CSC) votes to extend the temporary appointment of police officer David Portrey (from January 2011 to April 2011, followed by an extension through August).

• Nov. 21, 2010 – Hendrickson learns that Portrey was one of two officers involved in the fatal shooting incident of Douglas Ostling last October and was taken off duty during an investigation; Hendrickson objects via email to the withholding of this information by Chief Jon Fehlman.

• January 2011 – Hendrickson is contacted by three police sergeants who claim that civil service rules were violated when Chief Fehlman reduced their rank from lieutenant to sergeant.

• Jan. 13 – Hendrickson meets with Bauer to express concern that civil service rules are not being followed; a followup letter is sent on Jan. 20.

• February – Commissioners have a non-noticed public meeting with Bauer (date unknown).

• Feb. 18 – In writing, commissioners David Hand and George McKinney prohibit Hendrickson from discussing CSC business with "outside" people or organizations.

• March 7 – Police Cmdr. Sue Shultz, saying that she was following instructions from the chief, asked Hendrickson to reconsider an applicant for a police job who had not been chosen as a finalist; later, Bauer told Hendrickson to accept police department "leadership" in hiring decisions.

• April 8 – Hendrickson submits a detailed report to commission flagging problems with operations, and expressing concerns about the commission's increasing lack of independence.

• May – Commissioners hold two non-noticed "special" meetings with city officials about secretary reorganization inside the city.

• June 10 – Commissioners vote 32-1 against replacing Hendrickson with a city employee.

• Aug. 12 – Commissioners vote 2-1 to transfer S/CE position to a city employee, thus terminating Hendrickson's contract.

• Aug. 15 – Hendrickson and Commissioner Robert Fernandez send a memorandum to the council, the city's manager and attorney claiming that the CSC's vote was illegal and the transfer should be rescinded.

• Aug. 17 – Hand tenders his resignation from the CSC, citing a division within the commission that can't be reconciled; changes his mind after talking to Bauer.

• Aug. 17-18 – McKinney resigns effective immediately or until a replacement is named: later says he is not resigning.

• Sept. 9 – Hendrickson files an ethics complaint and petition to remove Hand and McKinney, claiming malfeasance in office and dereliction of duty.

• Oct. 3 – Scott Weiss, president of the Bainbridge Island Police Guild, requests that the CSC remove the appointed Human Resources staff member as the temporary secretary/chief examiner.

• Oct. 7 – Tim Ford, the state's assistant attorney general for Government Accountability, responds to Hendrickson's inquiry with a recommendation that the city "re-do" the three non-noticed meetings between city officials and the CSC.

• Oct. 10 – Fernandez resigns from the CSC, saying that it is clear the commission is no longer "a truly independent body" per the Revised Code of Washington.

Community Events, April 2014

Add an Event
We encourage an open exchange of ideas on this story's topic, but we ask you to follow our guidelines for respecting community standards. Personal attacks, inappropriate language, and off-topic comments may be removed, and comment privileges revoked, per our Terms of Use. Please see our FAQ if you have questions or concerns about using Facebook to comment.
blog comments powered by Disqus

Read the latest Green Edition

Browse the print edition page by page, including stories and ads.

Apr 18 edition online now. Browse the archives.