Police Civil Service Commission Meeting
Maplewood City Hall, 8 AM, April 5, 2007
Extravagantly Unofficial Notes by JN

Present were commissioners Steven Gunn (chair), Debra Birkholtz, and Dr. Marlene Palkovich. Maplewood Police Chief David Thomalla was also in attendance, as well as staff liason Terrie Rameaux and city attorney H. Alan Kantrud. Observing in the audience were two residents (the author of these notes being one of them) and councilmember Erik Hjelle.

After the meeting was called to order, the first item was the approval of minutes from the previous Police Civil Service Commission (PCSC) meeting. One correction was discussed: Palkovich wanted to clarify that in the previous meeting her recollection was that she had said ÒIÓ and not ÒweÓ when she spoke about carefully reviewing the statute that covers civil service commissions. Gunn agreed that this was his recollection as well, so with that correction the minutes were approved.

The commission proceeded to the agenda's main item: ÒReview and approve backgrounds for police officer candidates and certify name for vacancies.Ó

After an examination process, an eligibility list of officer candidates was approved at the commission's Feb. 5^th meeting. In the intervening time, the Maplewood police department conducted background checks on all of the candidates. Since the law requires that they not divulge confidential information about the applicants, the commission identifies and discusses them by number. Thus they planned to discuss candidates One, Two and Five. Chief Thomalla reported that candidates Three, Four, and Six through Twelve had withdrawn after the background checks began.

Thomalla observed that the police department's process is really a background investigation Ñ much more thorough than simply a check as you might see for a regular private sector job. The result are typically very detailed 8-10 page reports on each of the candidates.

Gunn said that he would ask the chief and city attorney for tips on how to discuss confidential information appropriately. Thomalla explained that they refer to candidates by number, avoid any reference to gender, and try to keep out any kind of personally identifying information (such as where they live, where they have previously worked, etc.). Kantrud provided concurring thoughts, and stated that basically how the commission has done it before will be fine, even in the televised chamber.

Palkovich asked the chief to comment on the last two sentences of a paragraph in one candidate's background check, to ask if a specific item there was a concern to the police chief. The chief said that based on the department investigation, the item was not a major concern. In discussing another question about an applicant, Thomalla described how different ratings for the same candidate can come from different trainers, creating an appearance of uneven evaluations, but really reflecting the differences of the trainers in how they score trainees.

Without knowing the contents of the confidential reports, it was hard for an observer to follow the specific questions and answers, but the commission appeared satisfied with the responses to each issue that it raised raised. Gunn noted that in approving the background checks the commission was approving of the work done by the department in the investigations.

Birkholtz offered a motion to approve the background checks. Palkovich seconded. All voted aye.

Gunn asked Thomalla if he would be comfortable with a certification of the current list of candidates, and the police chief confirmed that he was. He also said that with the withdrawals previously mentioned, additional candidates will be moved up the eligibility list for the future.

There was then a motion (I think Birkholtz made it) to certify the candidates, a second (I believe it was Palkovich), and again all voted aye.

Gunn thanked the background investigators for their thorough work.

The next agenda item was ÒOther.Ó Under this heading, Gunn asked that a letter from Maplewood resident John Nephew, which had been presented to each of the commissioners by its writer prior to the meeting being called to order, be added to the record.

Gunn then discussed the issue of former Deputy Chief John Banick and developments since the order of the PCSC at their previous meeting. Kantrud said, specifically, that a writ of mandamus sought by Banick (as a motion in his ongoing lawsuit with the city) to enforce the PCSC's order was refused by the district court. He was unable at that point to provide detailed information on the basis for the judge's decision not to issue a writ of mandamus.

Since one of the city's arguments against the writ of mandamus was that the city had not been properly notified of the PCSC's order, Gunn asked who the PCSC should serve orders upon in the future. ÒI'd hate for the public to think we made a mistake, and the court would have reinstated Deputy Chief Banick if we had properly served the city our order.Ó So he would like to know, to fulfill their responsibilities, to whom they should serve their orders in the future. Kantrud suggested that they should communicate directly to the city manager, rather than an assistant (such as the staff liason to the PCSC). Kantrud said he doesn't know that a formal process server would be necessary or anything like that.

Kantrud said it was his understanding that the city was never formally notified of the PCSC's decision. Gunn asked Rameaux if this was correct, that the order was never passed along to the city manager. She indicated that the minutes of the meeting were given to Mr. Copeland some time afterwards, when he requested them.

Gunn said, the next time they issue an order, he will personally serve it on the city manager.

Palkovich said that it is confusing to her that there is even an issue because the commission sat here and signed their order in an open meeting, broadcast live on television. (And, for that matter, two city attorneys were present Ñ Kantrud and Bethel.)

Birkholtz asked if there's something the commission needed to do today to properly execute their order from the previous meeting.

Palkovich asked if the commission has gotten any solid confirmation that there was in fact a denial of the writ of mandamus. Gunn said he presumed it was true, but asked if perhaps Rameaux could obtain copy of the judge's decision. He asked, was the judge's order of denial published or discussed in a newspaper article? Rameaux said she thought it was mentioned in a Pioneer Press article the next day.

Gunn asked if there was anything further on that matter.

Palkovich said that because of the open meeting law, the members of this commission can't outside of these meetings discuss any of their concerns. Palkovich said that she had requested a short period of a closed session at this meeting to discuss the matter. She received a response from Mr. Kantrud saying that was not possible. She has since spent a lot of time carefully reading the open meeting law, and says that in her estimation most of Mr. Kantrud's response was correct. She wished to clarify as well, that she does not consider herself an advocate for Mr. Banick as an individual, but rather an advocate for the city of Maplewood and the Maplewood police department. Ms. Birkholtz commented on her own recent careful reading of the open meeting law.

Kantrud said he had meanwhile been able to call up the judge's order on his laptop. He read it aloud to the commission. It was signed on March 28, 2007.

Turning to the open meeting law, Kantrud said the specific question Palkovich asked him concerned the issue of closing a meeting to discuss the potential of the commission suing the city to enforce its order. He clarified that the commission is absolutely free to have such a discussion, but it would not be a basis for a closed meeting.

Gunn said he was familiar with the legal arguments made to Judge Mott from both sides. He said that, hearing Mott's order, he thinks it means that if the statute (MS419) itself was more specific, the judge could have found a clear duty to act. He also said that it sounds to him like there could be a finding that the PCSC's order could be enforced by a summary judgement before trial. There is a mandamus standard to apply for this specific motion, as it was made to the court, and the judge's interpretation is that that standard does not apply in this situation.

Gunn asked, for clarification, if the city's position is that it still has not been served the PCSC's order. Kantrud said that in his view the city clearly is aware of it now.

Gunn added that, as far as he was aware, there has never been a case quite like this in Minnesota, and he opined that judges are pretty careful about acting when there are not clear precedents, so the judge's caution in not using mandamus seemed understandable.

Palkovich stated that she is concerned about all of this, in terms of understanding the PCSC's role and what they are empowered to do. Gunn said that he expects there to be guidance when a judge finally decides the case, and that there is likely to be further guidance assuming the case ultimately goes to a court of appeals. He elucidated the underlying issue of the authority of a civil service commission under the statute versus the right of a city to reorganize itself, and foresaw courts weighing in on that issue.

Birkholtz said she'd like to know who is accountable to the police civil service commission on the part of the city, for not following the PCSC's order. Gunn said he doesn't see it as a question of accountability, but really a question of what is the authority of the PCSC. In this case, since the city is not supporting the PCSC's position, he felt it was in a sense lucky that there is a vehicle in the form of Banick's lawsuit to test the PCSC's authority. Palkovich asked if the case has to go to a trial to determine the authority. Gunn suggested that it should not, because it's not a dispute of factual questions, but just a question of law. ÒJuries don't decide legal issues, juries only decide questions of fact.Ó

Kantrud cautioned that one of the counts in Banick's suit is an unfair labor practices complaint, charging retaliation, and this at least would be a question of fact. Gunn clarified, ÒWe're being selfish here,Ó and his remark was only about the specific concern of the PCSC, not Banick's suit as a whole. Palkovich added that the commission really needs to know what it's supposed to do; ÒWe need to know which statute works and which doesn't.Ó

Kantrud said he thought the city, in reorganizing the way that it did, did not expect the issue to come before the commission at all. He suggested that the PCSC took up the issue on its own, without the city's request; it was not the desire of the city that the PCSC bring it up at all. Birkholtz disagreed, saying that the police officer brought it to them, and the PCSC's role is in fact to consider issues like this brought to them by the department's officers. Palkovich concurred, saying the commission acted upon something brought to them by an officer. Effectively the two commissioners challenged Kantrud's underlying implication that the commission is meant to perform its duties at the direction of the city administration.

Palkovich had another topic to discuss with her fellow commissioners. She reported that Mr. Copeland had requested a list of questions to ask future applicants for the commission. She had developed a list of questions, which she wanted to offer her fellow commissioners for their feedback, in case they had any objections.

Birkholtz asked if they should discuss the fact that the city council voted (3-2) not reappoint her. Gunn said they should, but after the applicant questions topic was finished.

Speaking about her list of questions, Palkovich said that she was interested in looking for what kind of skills prospective commissioners have, what kind of abilities they would bring to the commission. Gunn praised the list, and voiced appreciation for Palkovich's experience in helping police departments with evaluating candidates and so forth. Birkholtz also offered a positive response. The commission asked that Rameaux deliver the list of questions to City Manager Copeland, and also offered copies to Thomalla and Kantrud for their information and their input. The specific questions on Palkovich's list were not made public.

Thomalla raised a question inspired by the issue of questions, to ask about testing and hiring Ñ is it appropriate to close meetings to discuss specific questions to be used for testing officer candidates? Kantrud initially said no, but there was back and forth talking about the possibility of officer candidates watching the public meeting and thus getting tipped off about their upcoming exam questions. I think Kantrud was going to go and study the question further.

Palkovich asked (bringing Birkholtz's question back up), is it inappropriate to ask the city why they rejected Birkholtz's application for reapointment to the commission? Is there something Kantrud or Rameaux or anyone could tell them to explain why? Kantrud said they would have to ask the parties who voted on it (councilpersons Hjelle and Cave, and Mayor Longrie, voted against her reappointment) for their reasons. Gunn asked Rameaux if she could ask the city for this information on the commission's behalf.

Palkovich asked if there is another applicant now. Rameaux said she believed there might be two.

Clarifying to any observer who might be wondering, Gunn explained that under the civil service statute, Birkholtz continues to serve after her term has expired until she is replaced by a new appointee selected by a majority of the city council.

Adjourned at 8:55 AM.