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Civil Service Commission Minutes - 07/17/2008MINUTES OF THE FIREFIGHTERS AND POLICE OFFICERS' CIVIL SERVICE COMMISSION July 17, 2008 Present: Bob Monaghan, Chairman Dr. Ernest Dover Dr. Floyd Thornton Julia Vasquez, First Assistant City Attorney Dennis Bachman, Police Chief Earl Foster, Fire Chief Jim Dockery, Assistant City Manager /CFO Tammy Guerra, Civil Service Director Dave Goodrich, Human Resources Tina Harmon, Recording Secretary David Collins, Fire Marshal Brady Duke, FEO Nick Hillner, Captain Steve Wilkinson, FEO Joe Morris, Lieutenant Bruce Deeb, FEO 1. Call to Order 5 Commission Members City Staff WFFD Employees Chairman Monaghan called the meeting to order at 10:00 a.m. 2. Approval of Minutes (June 27, 2008) Commissioner Dover moved, seconded by Commissioner Thornton, that the minutes of the meeting of June 27, 2008, be approved. The motion unanimously carried. 3. Conduct Hearing And Take Possible Action Regarding A Request For A Ruling Regarding The Entry -Level Examination Administered On June 7, 2008, For A Position In The Fire Department Chairman Monaghan asked anyone who wished to address this issue to step forward and state their name for the record. F� FEO Brady Duke asserted that a rules violation had occurred regarding the entrance exam given June 7, 2008, for Fire Investigator Trainee, as one of the applicants was over the age limit. He provided the Commission with copies of Sections 143.009, 143.022, and 143.025 of Chapter 143. Had the unqualified person not been allowed to test, the test would have been declared invalid under §143.025, as it would not have been a competitive exam. There would not have been enough applicants to take the test. Under §143.022, the Commission sets the age and physical requirements for applicants for beginning and promotional positions. If the Commission allows unqualified people to test, there will be more appeals in the future. Section 143.023(b) states that a person may not be certified as eligible for a beginning position in the Fire Department if that person is 36 years of age or older. FEO Duke believes only one qualified applicant took the exam in question. Chairman Monaghan asked for clarification pertaining to Paragraph 143.025(c), which requires more than one applicant to take an examination, in order that it be competitive. Mr. Duke concurred, adding that he believes that section refers to qualified applicants. Chairman Monaghan stated that verifying the age of an applicant should be an easy process. He added that the Commissioners know that other qualifications for firefighters and police officers are not actually determined until after testing has occurred. Mr. Duke agreed, but pointed out that the entrance exam notice states that an applicant must be 21 years of age and not more than 35 years of age at the time of hire. By allowing an already unqualified applicant to take the exam, it rendered such exam no longer competitive. Mr. Duke believes an examination was given in April, and certain applicants were not allowed to test because they were not qualified (due to age and other qualifications). Commission Monaghan asked for further comments, either from his fellow Commissioners or the attendees at today's meeting. None spoke. He then said the Commission would adjourn into executive session. FEO Duke then asked why Julia Vasquez was allowed to go into the executive session with the Commission. Section 551.0711 gives two stipulations on when an attorney can be present during the executive session, neither of which are applicable in this instance. Dr. Dover opined that Mr. Duke is referring to an administrative due §551.071. CONSULTATION WITH ATTORNEY; CLOSED MEETING. A governmental body may not conduct a private consultation with its attorney except: (1) when the governmental body seeks the advice of its attorney about: (A) pending or contemplated litigation; or (B) a settlement offer; or (2) on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter. process. He believes the Commission's assertion that Ms. Vasquez is not authorized to adjourn with the Commission into executive session is incorrect. Captain Nick Hillner stated "they" did not agree that Ms. Vasquez was authorized to attend the executive session under §551.071. However, if she is to be allowed to attend, he would like for the Association's president to attend the executive session, as well. Mr. Dover replied that while Ms. Vasquez had the authority to attend the executive session, the Association President did not. Ms. Vasquez stated that her attendance during the Commission's executive session is similar to when the City Attorney attends executive sessions of the City Council in order to provide advice. Captain Hillner objected, and stated that this situation is different. Chairman Monaghan noted that the Commission looks to the person designated by the City Attorney's Office to interpret local and state civil service laws on its behalf. Captain Hillner asked why such interpretation has to be done in executive session, as opposed to during the open session. Ms. Vasquez responded that the Commission can claim attorney - client privilege, and asserted that it is appropriate for the Commission to obtain advice from the City Attorney's Office during its executive session. Captain Hillner stated that the Commission cannot explain to those present here today that it is right that Ms. Vasquez accompany them into executive session. He added that Ms. Vasquez can give a "long, drawn -out interpretation, as that's her job," but in black- and - white, she is not allowed to attend the executive session. They are protesting such action, and ask that such interpretation be done in the open part of the meeting. If she is attending the executive session for another reason, in violation of the rules, he still asserts the Association's President should be allowed to attend. Chairman Monaghan stated that Commissioner Dover had already referenced due process, and advised those present to follow such process, if they think a violation of the Open Meetings Act is about to occur. It is the Commission's intent to go into executive session, and ask counsel (Ms. Vasquez) to join them. Captain Hillner noted that the attendees could not very well stand at the door and block her way. Chairman Monaghan replied that he did not think such action would occur. 4. Executive Session ■ Consultation with City Attorney, as authorized by Section 551.071 of the TEXAS GOVERNMENT CODE Chairman Monaghan adjourned the meeting into executive session at 10:12 a.m. The meeting reconvened into open session at 10:33 a.m. He stated that no votes were taken during this executive session. Chairman Monaghan then noted this matter has been considered carefully. In his opinion, the only people who can appeal are those who took the test. On that basis, the appeal before the Commission today is not appropriate. Furthermore, §143.023 does m not specifically state that a person over the age of 36 cannot take a test. It does clearly state that a person over the age of 36 will never be certified, but that does not necessarily exclude him /her from taking the test. Therefore, Chairman Monaghan continued, he moves that the request for an appeal under §143.009, which is in actuality a request for an investigation, be denied. Seconded by Commissioner Dover, the motion unanimously carried. 5. Report from Fire Chief Chief Foster stated there is to be an entrance examination for a Fire Academy given on Saturday, September 27. It will be a written examination, followed by physical agility testing. He encouraged people to apply, noting there are five vacancies in the Department. The deadline to apply is September 24. 6. Report from Police Chief Chief Bachman said the Department is still in the hiring process for police officers. He added that there are civilian spots open, and encouraged the public to go to the City's website or to Human Resources to apply for those positions. The Alumni Association meeting went very well. This coming Monday, Wichita Falls is hosting a statewide Citizens' Crime Prevention convention. Councilor Elmore has spoken with folks with the Citizens' Police Academy Commission, and it is reported they are going to vacation here. FEO Steve Wilkinson asked for clarification that Chairman Monaghan had said earlier that Ms. Vasquez was attending the executive session in order to interpret Civil Service rules on behalf of the Commission. Chairman Monaghan replied that she was asked to attend the executive session to advise the Commission on the interpretation of local and state civil service rules. FEO Wilkinson said that under the local rules ,2 it is Civil Service Director's job to do that, not that of the City Attorney. Chairman Monaghan stated that the matter before the Commission was a request for an investigation into the performance of the Director of Civil Service. It would be totally inappropriate for the Commission to include her in that session, since any action arising from that session could potentially impact her. That is why advice was requested from the City Attorney. 2 "SECTION 143.012. DIRECTOR See Section 143.012, Chapter 143 The Director shall perform work incidental to the Civil Service System as required by the Commission. All communications or requests to the Commission shall be made in writing to the Director. The Director's duties include, but are not limited to:... (12) When a specific Rule does not address a particular question or issue, interpreting the Rules based on circumstances, facts and issues, and taking appropriate action; and... " A, , FEO Wilkinson said the Civil Service Director was not all that the Commission addressed in executive session. Chairman Monaghan replied that the only issue addressed was the request for an investigation under §143.009. A motion to deny such request was made and seconded. As he said earlier, there are due process steps that can be taken if the Association feels such action is appropriate. FEO Joe Morris asked why an applicant 36 years of age or older would be allowed to test, as they would not meet the requirements to be hired. It does not make sense. Chairman Monaghan allowed that under simple common sense, he would agree. However, going by a strict interpretation of the rules, there is no prohibition for such an individual to take the test. They just cannot be certified. 7. Adjourn Commissioner Thornton moved, seconded by Commissioner Dover, that the meeting be adjourned. The motion was unanimously approved. The meeting adjourned at 10.41 a -m- Dr. Ernes't,Ddvdr, Comrrtlrner JJ J4-t-VL4�— Dr. Floyd Th nton, Commissioner