City of Seattle

							                                           City of Seattle

                    Civil Service Commission’s Monthly Meeting

                                          October 27, 2000

1. Call to Order:
The monthly meeting of the City of Seattle Civil Service Commission was called to order by Chairperson
Nina A. Harding on Friday, October 27, 2000 at 9:40 a.m.


2. Introduction of Attendees:
   The Chair introduced the attendees:
   Commission Chair Nina A. Harding, jd/mpa
   Commissioner Kenneth M. Lowthian
   Commissioner Ken Morgan
   Miriam Israel Moses, Executive Director
   Mary Effertz, Administrative Staff Assistant
   Rhea J. Rolfe, Hearing Examiner, pro tem
   Susan Cohen, City Auditor
   David G. Jones, Deputy City Auditor
   Steve Gross, Assistant City Attorney
   Mary Kay Doherty, Assistant City Attorney
   Germaine Covington, Director, Office for Civil Rights, joined later in the meeting


3. Approval of Minutes:
   The Minutes of the August 25, 2000 meeting were read as revised. Chair Harding noted for the record
   that she would sign the minutes as revised, but she iterated her objection to the statement made by the
   Executive Director that is reflected in the minutes. Chair Harding read into the record again, the
   statement made by the Executive Director that appeared in the August minutes to which she objected,
   and made the following statement:
           The Chair has read the revised August minutes and will sign the minutes knowing the Chair’s
           opposition to item 10, page 7, the last paragraph which continues on to page 8, completing the
           paragraph. The Chair’s opposition is to [the] statements: ‘The Executive Director reminded the
           Commission that there had not been one opinion provided by Mr. Gross that the Commission
           had accepted and/or acted on. Rather, every single opinion he had written or recommendation he
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            made to the Commission was not adopted and the recommendations of the Executive Director
            had been followed in every case.’

            The Chair respectfully takes opposition to those statements that are reflected in the minutes. For
            the record, the Chair has reviewed the tapes of the August minutes and has determined that those
            two sentences have been taken out of context to reflect disfavorably upon City Attorney Mr.
            Gross and to reflect favorably upon the Executive Director in a self-serving manner. Because
            they’re taken out of context, I’m respectfully opposed to those items being noted and I will sign
            off on the minutes noting that opposition for the record.

    Commissioner Morgan asked that Chair Harding’s comments regarding the minutes be quoted as such
    and attributed to her. Chair Harding’s comments are quoted supra.


    The Commission reviewed the minutes of the September 22, 2000 meeting. Chair Harding proposed
    revisions on page 2, item 3; page 3 item 4(a); page 6 item 8(d); page 8 item (e); page 9; page 10; and
    page 11. Commissioner Morgan made corrections to page 10.


    Commissioner Morgan moved to adopt the September minutes as revised. Commissioner Lowthian
    seconded the motion and the minutes were adopted by acclamation.


Presentation by the Office of City Auditor:
The Commission suspended its adherence to the agenda so that it could listen to a presentation by two
representatives from the Office of City Auditor. City Auditor Susan Cohen updated the Commission on the
status of the audit. She advised the Commission that the auditors would soon begin working on the data
gathering and analysis phase of the audit. Furthermore, while they intended to pursue their original audit
plan, they would also remain open to the possibility of evaluating issues that might arise during the course of
their audit field work.


Deputy City Auditor David Jones told the Commission that the auditors were reviewing the scope of work
for the audit and that when the field work was completed, they would develop a draft document. The
document would be a “work in progress” and suggestions would be accepted. He told the Commission that
the auditors had not quite completed the sharpening of their objectives.


Chair Harding invited the auditors to discuss their objectives with the Commissioners in Executive Session.
The Chair also asked Mr. Jones what the projected timeline was for completion of the audit. Mr. Jones stated
that the audit team hoped to complete its field work by the end of the year. He noted that the team would be
conducting interviews with other commissions to develop a comparative sense of how things are done.
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Mr. Jones told the Commission that he would be looking to see if there were other entities or commissions
whose work is comparable to that of the Civil Service Commission. He clarified that he recognized the
difficulties involved in this because the Commission did, in fact, have a unique function. Chair Harding said
that she had been working on this as well and suggested that Mr. Jones talk with Attorney Steve Gross. The
Chair told Mr. Jones that Attorney Gross had assisted the Commission in looking at same-like commissions
that have the same quasi-judicial and quasi-administrative role. She invited Mr. Jones to speak with
Attorney Gross about the uniqueness of the Commission and she invited Mr. Gross to address with Mr. Jones
the unique characteristics of the Commission that he has shared with the Commissioners. The Chair noted
that this discussion would help guide Mr. Jones in his analysis.


City Auditor Susan Cohen told the Commission that people often question the motives and purposes of
audits. She noted that the scope of the report is fairly similar for all audits in terms of what is reviewed.
Chair Harding again urged the auditors to go to Steve Gross for any information they might need.


Ms. Cohen described the phases of the process as follows: When the draft is completed it will be given only
to the Executive Director for a factual review. After that, a second draft will be given to the Commissioners
and the Executive Director for review. A third draft, based on this review, will be given to the City Budget
Office and the City Council. The final report will be a public document. Ms. Cohen also advised the
Commission that the drafts may also be sent to the Law Department, the Ethics Commission, and the State
Auditor at any time during the process. The Chair thanked the auditors for their presentation.


4. Council Activity:
    a. The Commission reviewed a October 24, 2000 memo from the Executive Director to the
        Commissioners. The memo presented three pieces of draft legislation that would deal with
        conforming the Municipal Code to the changes made to the Charter in 1999. The draft legislation
        also proposed language for dealing with the issues raised by having an employee serve as the elected
        representative to the Commission. The latter recommendations were based on a preliminary
        determination by the USDOL. The Commissioners were provided with copies of the USDOL letter,
        the full text of the FLSA, and the pertinent sections of the Seattle Municipal Code.


        The Commissioners determined that, because of the short lead time for them to review the materials,
        as well as the complexity of the issues and the questions still remaining after receipt of the USDOL
        letter, they would table this discussion until their next meeting.
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        Commission Attorney Mary Kay Doherty briefed the Commission on the changes that were made to
        the Charter during the 1999 election and provided them with copies of the amended version. She
        advised the Commissioners that while her original draft legislation sets fairly specific guidelines for
        the circumstances under which a pro-tem commissioner could be appointed, the language of the
        Charter is broad and allows the Commission to set its own criteria for pro-tem appointments.


        It was noted that other questions besides legislative language still need to be resolved. These might
        include such issues as who would collect the Commissioner’s stipend if a pro-tem was serving while
        the regular Commissioner was still an active Commissioner. This might occur in an appeal wherein
        a Commissioner is recused. The Commission agreed to table these matters for future discussion.


5. Personnel Department Activity:
        a.      The Commission reviewed the Personnel Bulletin, dated October 17, 2000, which covered
                an NLRB ruling in Weingarten. The NLRB case involved a represented employee’s right to
                have a co-worker present at an interview that s/he believes might result in disciplinary
                action. The Weingarten case allowed co-workers to attend such interviews if the employees
                were represented. The new NLRB ruling extends that right to non-represented employees.
                The ruling may impact the City if it is adopted by PERC. The Executive Director advised
                the Commission that she would continue to track this matter for further developments.


        b.      The Commission reviewed the Personnel Bulletin, dated October 10, 2000, revising next
                year’s COLA from 3.8 to 3.9%. There had been some question as to whether this COLA
                would apply to the Commissioners. The Executive Director advised the Commissioners that
                she researched the matter and found that the COLA would not apply to them.


        c.      The Commission reviewed the section of the October 10, 2000 Personnel Bulletin that
                updated employees on changes to the Fair Credit Reporting Act [FCRA] as amended in
                1996. The amendment to the law provides that employees must now be notified if an outside
                investigator wishes to obtain a credit or similar report on someone as part of a workplace
                misconduct investigation. The employer must also provide the employee with a copy of the
                report and a written summary of the employee’s FCRA rights prior to taking any adverse
                action based on the report. Before the law was changed, investigators were able to obtain
                these reports without the employee knowing about it.
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                The Executive Director advised the Commission that there were investigations already in
                process wherein employees have declined to sign a waiver that would allow outside
                investigators to obtain this information. Absent the waiver, the information may not be
                obtained, however, employee testimony may not necessarily be accepted. There was
                discussion among the Commissioners of the necessity of obtaining a credit report, or other
                background reports on an employee if that report was not germane to the investigation.


                The Commission expressed a belief that the City Council could pass a resolution stating that
                City investigations, when conducted by an outside investigator who is contracted by the
                City, need not include such reports in the first place unless it is determined that they are
                necessary. The concept would be similar to the City’s drug testing policy. Originally
                intended to test all City employees, the policy was struck down in court and is now revised
                to apply only to those who perform work that would place themselves or others in jeopardy.


                The Executive Director asked the Commissioners if they would like her to do further
                research into this matter and prepare a position paper on the subject. The Commissioners
                responded affirmatively and determined that the paper should be presented to the Mayor and
                the City Council, since a formal resolution would have to be presented by them.


        d.      The Commission reviewed the Personnel Bulletin, dated October 3, 2000, wherein the State
                Court of Appeals struck down the City’s drug-testing program, under which all job finalists
                were tested. Until further action is decided, non-uniform pre-employment testing is stopped.


6. Related Policy/Administrative Issues:

        a.      The Commission reviewed a 9/28/00 Memo from Norma McKinney, Personnel Director, to
                all Department Heads regarding the health concerns of using vermiculite. The material is
                used to provide lightweight insulation, soil expansion, or fireproofing materials. Some field
                operations employees may have used these products and had low level exposure to them.
                Measures for safety are addressed.


        b.      The Commission reviewed a 9/26/00 Memo from John McArty, Labor Negotiator, to
                Department Heads. The memo provides guidelines for management during union organizing
                campaigns. The memo was generated because of the union organizing efforts of employees
                classified within the Information Technology Human Resources Program.
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October 27, 2000



7. Budget:
        a.      The Commission reviewed the transcript of the Mayor’s Proposed 2001-2002 Budget Speech
                to the City Council. The speech was given on 9/25/00.


        b.      The Commission reviewed hard copy of the 10/9/00 “Schell Mail” which outlined the
                Mayor’s budget priorities for the coming year.


        c.      The Commission reviewed the portion of the City’s 2001-2002 Proposed Budget book that
                covered the Commission’s budget and goals for the new biennium. The Executive Director
                noted the increase in budget from 1997 to 2002 represented an increase of $73,000.


8. New Business:
        a.      The Commission listened to a presentation by Germaine Covington, Director of the Seattle
                Office for Civil Rights. Ms. Covington briefed the Commission about her department’s
                “City Talks” program from its origins to its current form. She told the Commission about
                the efforts being made to have attendees from different departments sit together as well as
                about the importance of having management attend. Ms. Covington also informed the
                Commission that the City Talks program is one of five finalists in the Mandela Award
                Program. She told the Commission that a representative from the City will be selected to go
                to England where s/he will participate in the award ceremony and meet former President
                Mandela. The Chair noted that she had been a facilitator for the past three quarterly “City
                Talks”. The Chair fully endorsed this program as sponsored by the Seattle Office of Civil
                Rights and encouraged city staff and Commissioner participation.


        b.      Commissioner Morgan raised the question of accessibility to the program for employees
                who do not work in the downtown city area. Most specifically, he was concerned that
                employees at the zoo would not be able to access this program if they wanted to attend.


                Ms. Covington responded that the program was still very new and that they were working on
                the problem of accessibility, but that supervisors had been positively responsive to requests
                from employees who wanted to attend.


        c.      The Commission reviewed a letter dated 9/27/00 from Ruby Dell Harris, Secretary and Chief
                Examiner of the Public Safety Civil Service Commission, advising the Commission that the
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October 27, 2000

                 PSCSC is not in favor of making any changes regarding the division of office space in Room
                 360. The Commission noted that it would have been appropriate for the PSCSC to meet
                 with them in person to discuss the matter.


        d.       The Commission reviewed a copy of the space “Facility Standards” that is put out by ESD.
                 These standards went into effect on 6/19/00, and the document showed the requirements for
                 space for different job classes. The Executive Director advised the Commission that she
                 spoke with the people responsible for establishing space standards and was told that ESD
                 does not enforce this standard on Departments not located in Key Tower.


        e.       The Executive Director requested leave from November 6th to November 9, 2000. The Chair
                 asked whether this would be sick leave or vacation leave. The Executive Director responded
                 that it would be vacation leave. The leave was granted.


9. Progress Toward 1999-2000 Goals:
     a. The Executive Director reported that she continues to be on schedule with the GARMs and Customer
        Service Goals established for the Commission.


10. Director’s Monthly Case Status Report:
    a. The Executive Director reported that there were no appeals pending before the Commission.
    b. Four appeals were closed since last report
                Janos, Paul - referred to Stephanie Bell for mediation. May return within 6 months.
                Anderson, William - Not timely filed.
                Buchanan, Ken - Not timely filed.
                McMurtry, William - Not timely filed.
    c. One new appeal filed since last report:
                Eng, Patricia
    d. The Executive Director noted that Wyckoff, et al. and Woelfle would be the only two appeals filed in
        1999 that would not be resolved by the end of 2000. She advised the Commission that a union
        organizing effort was successful in the Wyckoff appeal and that all matters regarding the CSC appeal
        were on hold pending the negotiations between Local 17 and the City. She also advised the
        Commission that, because full resolution of the Woelfle appeal rested on the completion of an
        analysis by a consultant, the finalization of the settlement would not occur until 2001.
    Total: 16 Active appeals. 2 from 1999, 14 from 2000.
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October 27, 2000




11. Chair and Commissioner Comments:
    a. Chair Harding advised that although parking permit forms had been sent to the Commissioners, she
        wanted to note for the record that she would not be requesting a permit.


    b. Chair Harding reported her attendance at the Washington State Gender and Justice Commission’s
        “Celebration 2000.” The event was held in Spokane, WA and its theme was “Access to Justice.”
        The Chair noted that she served as facilitator for “Intersectionality of Race and Gender” and that she
        received excellent evaluations. She also showed the Commission a copy of a letter of thanks that she
        received from Justice Madsen and Justice Smith. The text of the letter read, in part:
                We appreciate your time, dedication to the issues, and expertise in serving as a small group
                facilitator at the program in Spokane. The program would not have been as successful
                without your active participation.

        The Chair also shared with the Commission the beautiful certificate that embodied a mosaic profile
        representing the diversity of women. The Chair received the certificate for her valued contributions
        to the Washington State Gender and Justice Commission.


    c. Chair Harding reported she has been named as Chair for the Year 2001-2002 CLE Committee for the
        Federal Bar Association. She noted that her responsibilities will include the planning and
        development of the CLE programs as well as the identification of faculty. The Chair told the
        Commission that she will continue to partner with the Washington State Bar Association and the
        King County Bar Association on the creation of future CLEs. The Chair noted that her past
        collaborations with the WSBA, KCBA and private sponsors have been excellent. She further noted
        that there will be an Ethics CLE on Alternative Dispute Resolution at the College Club on 12/8/00.


    d. The Chair advised the Commission that she continues to serve as a member of the KCBA’s Pacific
        Employment/Labor Law Conference Committee which is chaired by attorney Mary Roberts. She told
        the Commission that the committee has begun planning its 3-day conference which will be held in
        May of 2001.


    e. The Chair was named as a founding member of the Washington State Bar Association’s Labor and
        Employment Law Section. Currently, 450 attorneys have joined the section. The Chair told the
        Commission that she missed election to the Executive Committee by two votes. The Chair explained
        that, generally, elected persons are employed by named law firms. Hence, her loss by only two votes
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         represented an excellent showing because she is a solo practitioner. This strong showing, she told
         the Commission, affirms the respect that her colleagues have for her.


    f.   Chair Harding reported that she was asked to develop a series of seminars on family law,
         bankruptcy, employment/labor law, probate/estate and criminal law by James Kelly, Executive
         Director of Seattle Urban League. She will work with the Loren Miller Bar Association for faculty
         and also with the NAACP. The Chair noted that this series was still in the planning stages.


    g. The Chair told the Commission that she was again involved in LASER [Lawyers and Students
         Engaged in Resolution] and that she has been assigned to Franklin High School where training
         sessions have already begun. She advised the Commission that last year, over fifty mediations were
         done. The Chair shared with the Commission a part of an e-mail that she received from School
         Counselor Sara Chapman regarding her involvement in the program. The text read as follows:
                 E-mail does not do justice in conveying my thanks to you for the review training you did
                 with the Franklin Mediators. It was just the right thing to get our program off to a strong
                 healthy start. Peer mediation is so important and I could not do it without your help. Our
                 youth need support that they are capable of solving their own problems so that violence at
                 school is not the answer to issues. Thank you so much for giving of your valuable time and
                 talents.

    h. The Chair reported her participation in discussions regarding regional issues involving the American
         Bar Association Labor Law Section and how they relate to the National Labor Relations Board. The
         Chair reported that recommendations were crafted for the ABA annual meeting.


    i.   The Chair reported her attendance at the CLE entitled: “Substance & Subtlety: New Law and
         Effective Tactics for Plaintiff’s Employment Lawyers” sponsored by the Washington Employment
         Lawyers Association [WELA].


    j.   The Chair reported her attendance at another CLE entitled: “Handling Discrimination Claims Filed
         with Local Agencies.” The quarterly employment-related seminars are sponsored by the Foster,
         Pepper, Shefelman Law Firm. The Chair noted that there were two presenters from the “Seattle
         Human Rights Dept.” and that they did an excellent job.


    k. Chair Harding reported on a recent court ruling by the Washington State Supreme Court, and
         provided the following summary:

             ‘Fluctuating Work Week’ does not violate Minimum Wage Act
             RCW 49.46.130(a) provides that ‘except as otherwise provided in this section, no employer shall
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October 27, 2000

               employ any of his employees for a work week longer than forty hours unless such employee
               receives compensation for his employment in excess of the hours above specified at a rate not
               less than one and one-half times the regular rate at which he is employed’.

               The Washington Supreme Court has addressed this provision in Innis v. Tandy No. 68225-9. The
               primary issue on appeal was whether the employment practices of utilizing a ‘fluctuating work
               week’ violates this section of the Washington Minimum Wage Act.

               Under a fluctuating workweek the employer defined ‘regular rate’ by dividing a base salary
               amount by the total number of hours worked by the employee during the workweek. Thus, the
               more hours an employee worked during a given week, the lower his ‘regular rate’ was.

               The Washington Minimum Wage Act does not define “regular rate’. Relying on federal
               regulations and case law, the court held that such a compensation plan does not violate the act.

           The Chair stated that she was perplexed by this decision and will read the entire case and review the
           statutory and case authority cited before rendering an opinion. The Chair noted, however, that she
           wanted Commissioners to be advised of this Washington State Supreme Court ruling.


     l.         Chair Harding reported her receipt of a card of thanks from Cathie Caldwell, Neighborhood
                Legal Clinic program manager. The text of the card was as follows:
                   Nina, I wanted to drop you a note of appreciation for the wonderful work you do at the
                   Central Legal Clinic. Peggy told me of your long time dedication and your willingness to fill
                   in, often at the very last minute. Clearly, volunteers such as you are cherished and vital to the
                   success of NLC. Thank you so much.

     m.        Chair Harding read the partial text of a letter she received from Marijean E. Moschetto,
               Campaign Chair for the Holly Holman for Judge Campaign. The text stated in part:
                   Please consider this to be an enormous thank you for your generous support to Holly
                   Holman’s judicial campaign. As you may know, Commissioner Holman is precluded by
                   judicial ethics from expressing her gratitude personally, so I am writing to thank you on her
                   behalf.

      n.       Chair Harding reported on her first amendment workplace speech case, currently in the 9th
               Circuit federal court of appeals. The Chair told the Commission that her opening brief has been
               submitted and the State submitted its rebuttal brief. The Chair categorized the State’s rebuttal
               brief as a “very poor work product.” She noted that the issues were not addressed and that the
               brief contained “disparaging remarks about Appellant.” The Chair advised the Commission that
               it would be approximately a year before a decision would be rendered. She noted that this case is
               significant because it seeks to affirm a public sector teacher’s right of free speech to advocate a
               jail student’s right to a public high school education as guaranteed by the Washington State
               Constitution.
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      o.        On October 18, Chair Harding attended Mayor Schell’s “Community Forum on Race” held at
                the First AME Church. She advised the Commission that there was excellent participation.


      p.        The Chair discussed her work in the development of a workshop called “Youth and the Law.”
                Chair Harding serves as Co-Chair with Attorney J.D. Smith in a “collaborative effort with the
                judiciary, local bar associations and the Seattle Police Dept.”. The date assigned is May 18,
                2001. The First AME Church has donated $2,500 “seed money” for this effort.


      q.        The Chair attended Jar the Floor at the Seattle Repertory Theatre. The play covers four
                generations of family relationships, and is primarily about head-of-household African American
                women. Chair Harding said the issues and themes cross all cultures.


           r.   The Chair handed out Jar the Floor bookmarks to all in attendance.


           s. Chair Harding announced that her e-mail service has been discontinued as her ISP carrier
                (Freei.net) has been dissolved. As such, she is unavailable by e-mail, but can be contacted via
                FAX or telephone at 329-6370.


Chair and Commissioner Comments having been completed, the Commission adjourned to Executive
Session at 1:56 p.m..


12.    Adjourn to Executive Session:
           The Commission adjourned to Executive Session at 1:56 p.m. to discuss employee job performance.


13.        Return to the Record:
           The Commission returned to the record at 2:15 p.m. All business pending before the Commission
           having been completed, the Commission meeting was adjourned at 2:15 p.m. The next meeting will
           be held on Friday, December 8, 2000 at 9:30 a.m.

Respectfully Submitted,                                      Approved by:



_____________________________________                        ____________________________________
Miriam Israel Moses              Date                        Nina A. Harding, jd/mpa          Date
Executive Director                                           Chairperson