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HomeMy WebLinkAbout1999-08-13 CITY OF EULESS CIVIL SERVICE COMMISSION AUGUST 13, 1999 MINUTES The City of Euless Civil Service Commission was called to order on Friday, August 13, 1999, at 2:10pm, by Chairperson Carla Shields. Commission Members Present Carla Shields Robert Lumpkins Larry Beaver, Alternate Staff Members Present Tom Cox, Director of Administration Gary McKamie, Deputy City Manager Joe Hennig, City Manager Randy Byers, Director of Public Works Clyde Cullum, Public Works Superintendent Paul Wrzesinski, Water Utilities Superintendent Paul Wieneskie, Assistant City Attorney Ruth Alley, Human Resources Manager Anniece McKanna, Human Resources Technician/Civil Service Secretary Others Present Keith Jernigan The invocation was given by City Manager, Joe Hennig. Chairperson Shields convened the meeting. Chairperson Shields noted that Attorney Wieneskie was here to act as advisor. She invited him to explain the purpose of the meeting, which was to hear the appeal of Mr. Keith Jernigan regarding his employment termination. Mr. Wieneskie summarized the events leading up to today's hearing: termination upheld by Director and upheld by City Manager. According to the Civil Service Rules and Regulations, Mr. Jernigan has the right to appeal to the Civil Service Commission. The Commission tries to conduct its business as informally as possible with the overriding objective to get all the facts concerning the matter and make a reasonable and well-informed decision. Since the employee is bringing the appeal, Mr. Jernigan would proceed first to present his reasons why these actions were not justified. The City will then give its side of the story and justify their actions. He further mentioned that City of Euless Civil Service Commission Hearing—August 13, 1999 Page 2 the panel has the right to interrupt to ask questions as needed or to obtain clarification of any issues they need. After both parties had presented their cases and the Commissioner feel they have all the information, the Commissioners would go into Closed Session for deliberation. The Commission is prohibited by state law to make any decision in Closed Session. After deliberation, the Commissioners would make a formal decision on Mr. Jernigan's termination in Open Session. We are hopeful the entire proceedings will be concluded today. Mr. Wieneskie cited Chapter 10, Section 10.02, Subsection F, Paragraph 6 of the Civil Service Rules& Regulations. Chairperson Shields introduced the Commissioners and invited Mr. Jernigan to make his presentation at the microphone. Mr. Jernigan presented the Commissioners with a packet of information, which included copies of his performance evaluations and copies of articles about him which appeared in the employee newsletters. He stated that he knew he had made a serious mistake which resulted to his termination. He apologized to the City and accepted responsibility for his actions. He mentioned how difficult it was to discuss this situation with his father and his children. He stated that he had been a good employee with the City for the past nine years. He had a good work record and a lot of commendations. He mentioned that the City had been good to him as he recuperated from an on-the-job back injury which required back surgery and extensive rehabilitation. Since then, he felt he had not performed as well as he had in the past. Before his injury, he was a crew leader. Upon returning, his supervisors had lightened his workload assignments and given him fewer responsibilities, mainly limited to driving a truck. He noted his performance evaluations had been good until 1996. He felt his low evaluation in 1997-98 was still in the satisfactory range. He hoped that he would get the chance to correct his mistakes and show his remorse and be given the opportunity of rehabilitation and follow-up testing. Mr. Jernigan further mentioned other situations involving employees who were reprimanded, not terminated, and who were offered a second chance and rehabilitation. He indicated he had always done what was asked of him. He hoped the Commissioners would give him a second chance to prove himself and to consider all the information presented. Chairperson Shields then entertained questions. Commissioner Beaver asked if Mr. Jernigan knew of other employees who had been disciplined for drug or alcohol abuse and were terminated or received some other form of discipline. In addition, he asked if Mr. Jernigan knew his actions involving use of marijuana while employed with the City was against City policy. He further asked if Mr. Jernigan knew that amphetamines were also detected. Mr. Jernigan indicated that he had no documentation, but thought some were terminated and some were given a second chance by the Civil Service Commission for rehab and further drug testing. He felt he did not receive the documentation he had asked for in his open records request. He knew marijuana use was against policy. His interpretation after reading the policy that if he was not buying, selling, using drugs on the job, or attempting to alter or tamper with his specimen he could•be offered rehabilitation. He had cooperated and spoken with his supervisors prior to the test that he felt he would not pass the drug test. He disputed the results of amphetamines. • City of Euless Civil Service Commission Hearing—August 13, 1999 Page 3 Commissioner Beaver asked if he understood he had the right to have another medical provider --- - perform the drug screening on that same sample and asked if he had requested a second test. Mr. Jernigan stated that it was explained to him in a phone conversation with medical review officer, Dr. Bobbitt. He mentioned to the doctor that he knew about the marijuana, but had no idea about the amphetamines. The doctor explained the marijuana could have been laced with amphetamines. He disputed knowingly taking amphetamines. He felt the presence of the marijuana was a violation of the substance abuse policy. The letter he received at termination stated`violation of substance abuse policy". He assumed it was the same. Commissioner Beaver also asked Mr. Jernigan if he felt he was terminated due to drug use or the accident. Mr. Jernigan stated he felt he was terminated because of the drug use. He realized that with the drugs in his system and that scientifically he was probably impaired, but not under the influence. He explained to his supervisors and to the doctor he had used marijuana the night before. He felt he was not under the influence, but felt scientifically he was impaired by having the drugs in his system. He indicated that he did not think that was the direct cause of the accident. To prove himself; he expressed his confidence that he could pass the drug test now and in the future. Commissioner Lumpkins asked how he had interpreted the policy and how it would result in termination. At that point, Mr. Jernigan reiterated that he thought he would have been offered rehabilitation, not termination. He did not realize the seriousness and used poor judgment. Mr. Jernigan indicated his understanding was that if he were caught, he would be given the opportunity for rehab, not termination. Drugs have never caused a problem in his life. He did feel that his termination helped him realize the seriousness of the drug use. He knew that he could be randomly drug tested because of his CDL license. His rationale was if he got caught, he would ask for rehab; however, he knew he was using poor judgment. Chairperson Shields asked if it was reasonable to ask employees to not use illegal substances. Mr. Jernigan provided an affirmative response. He added that drug use had never caused a problem before either personally or professionally; he began using marijuana to help him relax and sleep while he was out with the back injury. He used poor judgment when he did not stop when he should have. His rationalization was that since he could not see any problems, he felt he could continue using it. Chairperson Shields inquired as to his knowledge of previous employees who experienced similar incidents and had received rehabilitation after they stated they had a problem. Mr. Jernigan said he thought the other incidents were off-the-job; one employee was terminated after being arrested off-the-job in a public place, and one was not. Commissioner Beaver asked if he knew of other employees in his department who were terminated due to drug use. He further asked if Mr. Jernigan felt he was treated differently by his superiors. Mr. Jernigan answered that he knew of others who were terminated and some who were not terminated. He did not know if he was being treated differently. He reiterated that he had a • City of Euless Civil Service Commission Hearing—August 13, 1999 Page 4 clear arrest and driving record. He felt that personal differences and the possibility of being viewed by his supervisors as a high risk might have led to his termination and no offer of a second chance. There being no further questions of Mr. Jernigan, Chairperson Shields invited the City's response. Mr. Tom Cox commented that there are accidents all the time, unfortunately. There have been three other incidents: 1. Employee Number One, who was mentioned by Mr. Jernigan, was arrested by the Euless Police at Showplace Lanes. He was not on duty at the time, but was wearing a City uniform and was in possession of drug paraphernalia. He was terminated the next day. The primary differences in that employee and Mr. Jernigan was the other employee did not fail a drug test and was not at work and was not operating a City vehicle which was involved in a DOT reportable accident. That employee was reinstated by the Civil Service Commission. 2. Another employee was convicted of a DUI. His driver's license was revoked. He was placed on unpaid administrative leave until he could obtain a work permit. The employee received his permit to drive. The offense occurred off-the-job. 3. The other incident happened about seven years ago. The employee came voluntarily to his director and asked for help for a drug problem. The employee received assistance from the local facility (EAP) and returned to work. The differences were: the employee asked for help from the Director,the drug policy was not in force because he did not fail a drug test, he was not involved in a DOT reportable accident. Mr. Cox also mentioned that Mr. Jernigan's evaluations had deteriorated from 1996 forward. He had been rated "does not achieve" because he had scored 32 out of a possible 100 points on his most recent employee evaluation. When you see a good employee who experiences a rapid performance decline, sometimes drugs have something to do with it. He read excerpts from the drug report, which indicated that Mr. Jernigan was impaired and showed positive for drugs. The City asked the doctor for a breakdown of the results. The impairment DOT cut-off level for amphetamines is 100; Mr. Jernigan's was 2,739 nanograms per milliliter. The impairment DOT cut-off level for marijuana is 50; Mr. Jernigan's was 324 nanograms per milliliter. If there were a police officer with a gun who had elevated drug levels in their system, he/she would be terminated. If there were a firefighter operating a life/safety-type situation who had an elevated drug level, he/she would be terminated. A Public Works employee who is operating a 10,000 pound, $75,000 piece of equipment should not be treated any differently. Mr. Cox, Mr. Byers, and Mr. Cullum deliberated a long time about this situation involving a long-term employee. The City wants the Commission to send a message that we will not accept elevated drug levels in our employees who are working for the City of Euless. It could hurt themselves or any of our citizens. Mr. Jernigan did not fall into the category for rehabilitation and did not exercise good business judgment. If we had offered rehab, a message would be sent that an employee would get a second chance if they violated the City's drug policy. Commissioner Beaver wanted clarification as to the reason for termination: result of the accident or the result of the drug use. He also asked if the second employee worked in either the Police or Fire Departments. City of Euless Civil Service Commission Hearing—August 13, 1999 Page 5 Mr. Cox answered that Mr. Jernigan was terminated due to the elevated drug level . He - - _ _ mentioned the second employee did not work in Police or Fire. Commissioner Lumpkins asked how the City's position on the drug policy is communicated to the employees. Are the employees expected to comprehend the policy by only reading it, or are there other methods used? He wanted to confirm what Mr. Cox had said about the "impairment" level. Mr. Cox indicated that each employee is given an Employee Handbook including policies. They are given time to read it and they also have to sign a form confirming they received it. The two primary policies emphasize the Drug Policy and the Sexual Harassment Policy, due to the nature of civilization today. Mr. Jernigan read the policy and knew what the repercussions could be. He further mentioned that the City"could have"offered rehab, but not in this instance (due to the extenuating circumstances). Mr. Cox stated the City's philosophy should be picked up by reading the policy. The City is trying to send a message of zero tolerance. He indicated that other options would have been available if the drug levels had not been so elevated. Employee Number One was arrested for public drunkenness; but the officer found drug paraphernalia in the employee's truck. The City terminated the employee — Civil Service Commission reinstated him However, there are huge differences in the circumstances. If the "impairment" level had been slightly over the limits, there could be extenuating circumstances. The City has a huge heart for our employees; we'll give them any slack we can. The levels in this situation were well over the threshold of tolerance. Chairperson Shields inquired as to the number of affected employees who went for rehabilitation and asked Mr. Cox to explain the rehabilitation process. She also asked if an employee had asked for rehab if they knew they were going to be tested. Mr. Cox responded that one had gone through rehabilitation. The employee pays for the rehabilitation. The City receives very little communication about the progress. We receive information that the program is finished, the employee can return to work. We receive no details. As far as the situation of the employee asking for rehab prior to testing, Mr. Cox thought the third employee had asked for rehabilitation and asked for confirmation from Ruth Alley. Mrs. Alley mentioned that Risk Management handles anything to do with drug testing and rehabilitation. Furthermore, it is a confidential area. She had no knowledge of the incidents. Mr. Hennig commented that the third employee had asked for help prior to the testing. The employee is still employed. Commissioner Beaver inquired if any of the employee operated heavy equipment. Mr. Hennig indicated that the employee was not involved in driving heavy equipment, but could probably drive pickups, pull trailers, and routine work equipment. Chairperson Shields asked about the testing of clerical staff. Mr. Cox mentioned that random tests are given to CDL operators, Police, Fire, and voluntary people who are randomly tested. The tests met TXDOT guidelines. • City of Euless Civil Service Commission Hearing—August 13, 1999 Page 6 Chairperson Beaver asked if new hires were drug tested. Mr. Cox said that new hires take a pre- employment drug test. No one has failed a random drug test. Mr. Jernigan passed his pre- employment exam. Mr. Wieneskie inquired as to the number of accidents in the City and the criteria for testing. Mr. Cox answered that employees are tested in the following situations: where a fatality occurred, in a reportable accident, or when a vehicle had to be towed. The employee involved in the accident would take the drug test, even if they were not a CDL operator. Chairperson Beaver wanted to know how many tests Mr. Jernigan has had during his tenure. Mr. Cox stated that there were four randoms per year. In the first three times, Mr. Hennig had been randomly selected every time. There are quite a number of CDL operators. You could be randomly selected many times, a few times, or none at all. Chairperson Lumpkins asked how we would characterize our employees' understanding of their access to rehab. Mr. Cox answered that everyone is presented with that just like any other benefit. A lot of our employees use the EAP: psychological, divorce, drugs, etc. Mr. Cox went on to say that employee can access the program at any time. We do not begrudge them. Once they inquire about utilizing the EAP, they can be set up. The City is kept at arms length, as it should be. Chairperson Beaver asked how many times Mr. Jernigan had submitted to a drug screening. Mr. Jernigan stated that he had taken a test for pre-employment in 1990 and on July 2, 1999 after the accident. Mr. Jernigan further mentioned that another employee had failed the first test for marijuana. Mr. Jernigan stated that he knew of a colleague who had previously had a drug problem. His open records request did not reflect that incident. The colleague indicated he had been arrested for possession. This employee was not mentioned today. He added that the 32 points he had earned on his 1997-98 evaluation was in the "standards met" category. The points had been incorrectly calculated. Even though two points is not much, there is a big difference in the categories of "needing improvement" and"adequate or achieves". Mr. Jernigan also mentioned that he did not know about the high levels of amphetamines. If the marijuana was laced with amphetamines, he would not be surprised with the findings. His CDL indicates he held a safety-sensitive job. He reiterated that he had a clean driving record and hoped that would be reflected. As far as the criteria based on the vehicle requiring to be towed, he explained that he turned off the engine to prevent a fire and to protect himself and any citizen and was able to drive the damaged vehicle onto the wrecker after it had been uprighted, Chairperson Shields asked for clarification on Employee#1 and Employee #3 —neither one were on duty? Mr. Jernigan answered, yes. City of Euless Civil Service Commission Hearing—August 13, 1999 Page 7 Mr. Wieneskie responded that his law-firm-Was involved in honoring Mr. Jernigan's Open Records Request. Mr. Jernigan was given all the records that the City was legally able to provide. We are prohibited from disclosing records concerning an employee's participation in the EAP or medical records due to the Americans With Disabilities Act. Mr. Jernigan stated that he did not think the employee for which he was inquiring had not been required to attend rehab. The employee had come to an agreement with the supervisor. Mr. Jernigan thought he would have received documentation regarding his collegue's arrest. Mr. Wieneskie confirmed he had been given all documents the City was legally able to provide. Mr. Cox asked if Mr. Byers could address the issues regarding the training of Public Works employees. Director of Public Works, Randy Byers, stated that Employee #3's incident occurred 12 to 15 years ago at the employee's private residence. There was some police activity, late at night. The employee visited with Mr. Byers following the incident and requested assistance due to personal and alcohol problems, not drugs. The incident was not city-related and occurred prior to the established City drug policy. Additional comments by Mr. Byers related to the numerous safety and personnel meetings in his department. When new policies are adopted by the City, his department has safety/personnel meetings. The policy is explained to the employees; he further remarked that if you have a drug problem, you can ask for help. If you ask for help after having an accident, there is a different scenario. In this situation, it was felt they had no option. Commissioner Beaver inquired as to how many meetings Mr. Jernigan attended. Mr. Byers stated that he did not have the sign in roster with him, but that Mr. Jernigan would have attended one or more. There being no further comments, Chairperson Shields adjourned for a five-minute break and then to convene in closed session at 2:55pm. At approximately 3:20, Chairperson Shields reconvened the open session. She indicated the Commissioners had been deliberating as authorized by Sections 551.074, "Personnel Matters", and 551.071, "Contemplated Litigation" of Texas Government Code. Chairperson Shields entertained a motion and stated the Commissioners would approach the motion with respect to the seriousness of the matter. The Commissioners had reviewed all documents pertaining to this appeal. Commissioner Beaver made a motion to accept the recommendation of the City of Euless and uphold the termination of Keith Jernigan. Commissioner Lumpkins seconded the motion. Ayes: Chairperson Shields, Commissioner Lumpkins, and Commissioner Beaver Nayes:None City of Euless Civil Service Commission Hearing—August 13, 1999 Page 8 Chairperson Shields declared the motion carried. There being no further business, the meeting adjourned at 3:30pm. Carla Shields, Chairperson Date *Note.. Carla Shields was chairperson at the time these minutes were conducted and is the only member of the current Commission.