Members Present: Hon. Carol Ronning Kapsner, Vice Chair; Petra Mandigo Hulm; Kari
Landsem; Hon. Lisa Fair McEvers; Ross Munns; Rod Olson; and Ted
Smith
Vice Chair Kapsner called the meeting to order at 10:00 a.m.
Minutes It was moved by Rod Olson, seconded by Kari Landsem, to approve the minutes of
January 14, 2011 meeting subject to correction of three typographical errors. The motion
carried.
Review Proposed Changes to Administrative Rule 33 At the January meeting, the Board asked Ms. Klein to incorporate what now exists as proposed
Policy 122 into Administrative Rule 33.
It was moved by Ted Smith, seconded by Judge McEvers, to strike the word "and" at the
end of section 5.A.(2) and insert the word "or". The motion carried.
It was moved by Judge McEvers, seconded by Kari Landsem, to delete the date, names of
the justices, and attest by Penny Miller, under section 7. The motion carried.
It was moved by Judge McEvers, seconded by Kari Landsem, to forward the proposed
changes to N.D. Sup. Ct. Admin. R. 33 to the Supreme Court for consideration. The
motion carried.
Review Proposed Introduction At the January meeting, it was the consensus of the Board to include an introductory statement in
the handbook referring to the forms and where they can be found. Ms. Klein explained the link
in the Introduction will direct the employees to the HR page on the administrative website. She
presented the draft Introduction to the Board for its consideration.
It was moved by Judge McEvers, seconded by Ross Munns, to adopt the Introduction as
proposed. The motion carried.
Review of Changes Made to Proposed Policies Ms. Klein explained the following policies reflect the changes made at the January meeting:
Definitions In response to a question asking where the defined term “domestic partner” is used, Ms. Klein
responded the term is used in the Funeral Leave and Nepotism policies. Judge McEvers
suggested consideration should be given to using the term in the Sick Leave and Annual Leave
policies as well.
Leave Sharing No further changes were made.
Conflict Resolution Petra Hulm questioned whether an employee should skip steps 1 and 2 of the grievance
procedure if the grievance is against their supervisor. Justice Kapsner responded even if the
complaint is against their supervisor, they still need to try to resolve the situation. An employee
cannot go directly to the Policy Board.
By consensus, in section E.3.b.(3), the extra “t” was taken out of the word “department”.
Compensation and Classification Plan for Classified Employees No further changes were made.
Salary Administration for Classified Employees No further changes were made.
Criminal Background Checks No further changes were made.
Filing Classified Position Vacancies No further changes were made.
It was the consensus of the Board that the changes were conforming to the changes that were
made at the January meeting.
Review of Proposed Personnel Policies The following policies were brought back for further action:
Annual Leave Amy Klein recalled at the last meeting, the Board requested the Annual Leave policy be redrafted
to include language which would allow new employees to accrue six months (or 48 hours) of
annual leave on the first day of employment. She said she spoke with Dion Ulrich in finance
regarding the lump-sum allotment. He stated the change would create complications in
PeopleSoft. The leave reports would be inaccurate because advanced accrual could not be
entered in PeopleSoft and a negative balance would be reflected when the employee logs into the
system. Another option would be to work with PERS and ITD to change the tables behind the
system. Ms. Klein noted that the tables have previously been modified because judicial branch
employees accrue leave faster than the executive branch, but she is unsure how complicated it
would be.
Sally Holewa stated if the policy is adopted, until the changes can be made in PeopleSoft, the
supervisor would need to manually track the leave and report it monthly to finance. However,
she is leery how the public will view the advanced accrual.
Ms. Klein said it is her experience that when employees have a negative balance, they have
trouble digging themselves out of the hole, and it causes a lot of emotion and frustration. If the
time is allotted, it may eliminate some of their frustration.
Ms. Holewa commented that it tends to be almost exclusively law clerks who request the leave
because they are typically limited to one year of employment with the court. Because they do not
have the long-term ability to restock their hours, in some occasions, we end up taking their last
paycheck or sending them a bill for the remainder. Rod Olson added no matter how long
someone is employed, after six months, we want them back at a zero balance. If they go beyond
the six months in the hole, it can take a very long time to recover.
Petra Hulm noted she is an example of an employee who will have less than two weeks of leave
when she has her baby. She will either have to take advanced leave or unpaid leave. She said
another thing to consider is if a person takes unpaid leave and is gone for a period of time, they
will still be accruing leave and will take that leave later in the year. So from a staffing
perspective, an employee may be absent double the amount of time.
In response to a question from Petra Hulm asking how other agencies handle advanced accrual
and negative leave, Judge McEvers said it is not common in government agencies, only in the
private sector.
Justice Kapsner said currently, annual leave may be taken in advance of accrual but only by
approval of the appointing authority, which means it is completely discretionary and there is no
uniformity among the units.
Ted Smith suggested the court be more generous with sick leave and less generous on annual
leave. Ms. Klein noted if employees are ill, they can also use their annual leave or donated leave.
However, donated leave may not be used for pregnancy issues.
Judge McEvers said under section 1, it refers to annual leave accumulated while employed by the
state. She said it is not uncommon for an agency to only accept up to 40 hours of annual leave.
She suggested the Board may want to consider setting a limit on how much the court will accept
the liability of some other state agency in hiring someone. For example, if someone was hired
and came to the court with 240 hours of annual leave and quit six months later, the court is
accepting that liability.
In response to a question from Mr. Munns asking what an agency does when an employee can
only transfer 40 hours of leave, Judge McEvers responded the agency would have to pay out for
whatever the court would not accept. If the court accepts it, they cannot pay it out. Ms. Holewa
suggested Ms. Klein survey the other agencies to determine what they are allowing. She said if
other agencies are accepting it, then she suggested we leave it as is. However, if other agencies
are limiting it when hiring an employee, she does not see any harm in mirroring it. Judge
McEvers estimated the response will be all over the board, however, she has not seen a state
agency that would accept the full 240 hours.
Justice Kapsner said there are several places in the Annual Leave and Sick Leave policies where
it refers to “county court” employment. She suggested language be drafted that would not imply
we have county courts but would acknowledge that there are people who are employed by the
county.
It was moved by Judge McEvers, seconded by Rod Olson, to remove the language from the
Annual Leave policy relating to the allotment of annual leave being granted to an employee
on the first day of employment. The motion carried.
It was the consensus of the Board to defer further discussion pending review of other agenda
items.
Sick Leave It was moved by Ted Smith, seconded by Judge McEvers, to remove the language from the
Sick Leave policy relating to the allotment of sick leave being granted to an employee on
the first day of employment. The motion carried.
It was the consensus of the Board to redraft the language referring to “county court” employment.
Justice Kapsner will work with Ms. Klein to draft the proposed language.
It was the consensus of the Board to defer further discussion pending review of other agenda
items.
Family Medical Leave Act At the January meeting, the Board asked Judge McEvers to do some research on the Family
Medical Leave Act (FMLA) and report back. Judge McEvers said she spoke with Laurie Sterioti
Hammeren at Human Resource Management Systems (HRMS), and most of the state agencies
only grant the 12 weeks of leave that are allowed under FMLA. However, when the state
agencies start counting, varies from agency to agency. Some start counting after the employee
has exhausted their leave and some run the leave concurrently. The Court System is currently
running the leave concurrently but allows 16 weeks of leave, which is four weeks over and above
the FMLA requirement.
Judge McEvers stated the executive branch is proposing to allow leave to care for a grandchild,
sibling, step-child and disabled adult child, which are all beyond FMLA. The executive branch is
also proposing to add a sentence that states “parents who both work for the state of North Dakota
and qualify for leave to care for a child with a serious health condition are not required to
combine their leave.” She also noted with regard to military family leave for a qualifying
exigency, the executive branch allows 12 weeks of leave, and the court allows 16 weeks.
Judge McEvers said after doing the research, it basically becomes a matter of policy of what we
want to offer as an employer that is more expansive than FMLA requires.
Rod Olson stated there is confusion as to when FMLA starts, and it is handled inconsistently
throughout the units. He suggested using a one-week grace period because there is a difference
between having a cold and being seriously ill. Sally Holewa said FMLA is a protection for the
employee. It is a guaranteed protection of their job to prevent the employer from using the
employee’s absences against them or somehow penalize them. Her concern with using a grace
period or not starting FMLA when we become aware of the condition is that it is essentially
denying them a protection that they might be entitled to. She said the employee loses nothing by
starting it and running it concurrently, and noted it is important for all units to be following
FMLA consistently statewide.
Judge McEvers suggested the policy require an employee to use up their paid leave first and
suggested running the leave concurrently to avoid missing any of the requirements of FMLA. An
employee could remain on leave until their sick leave and annual leave are exhausted. After that,
they are eligible for donated leave.
Ross Munns questioned the language under D.3.a. He said if the leaves run concurrently, is it
really not unpaid leave? Ms. Klein responded the federal law only mandates that the employee is
guaranteed the time off without any adverse effects. It does not require the employer to pay it.
It was moved by Ross Munns, seconded by Kari Landsem, to insert the following after the
first sentence in section A: “An employee is required to use all eligible paid leave,
according to the leave policies, in conjunction with FMLA before taking unpaid leave.”
The motion carried.
It was moved by Judge McEvers, seconded by Ross Munns, to insert the following sentence
at the end of the first paragraph in section A: “It is the intent of the Court System to meet
or exceed the protections of the Family Medical Leave Act.”
It was the consensus of the Board to insert the word “leave” after the word “annual” in the
second paragraph of section A, line 4.
It was moved by Petra Hulm, seconded by Ted Smith, to adopt the definition proposed by
OMB for son or daughter. It will be referred to as “child” in the policies and will be added
to the definition section as follows: “Child is defined as a biological, adopted, or foster
child; a step-child; and a legal ward under the age of 18 or, if older than 18, incapable of
self care because of a mental or physical disability at the time the leave is requested.” The
motion carried.
It was moved by Kari Landsem, seconded by Rod Olson, to include “domestic partner” in
section C.1.a.(3) of Policy 137. The motion carried.
Judge McEvers suggested including a link to the Federal Department of Labor fact sheet on the
court’s administrative website. Ms. Klein responded all of the forms and posters are on the
administrative website and she will also include the fact sheet.
It was moved by Judge McEvers, seconded by Ross Munns, to approve the FMLA policy as
modified and include it in the packet to be forwarded to the Supreme Court for
consideration. The motion carried.
Back to Sick Leave It was moved by Rod Olson, seconded by Ross Munns, to reinstate paragraph E.2. and
change 24 hours of advanced accrual to 48 hours.
Petra Hulm suggested, as stated in early discussion, the court be more generous with sick leave
and less generous on annual leave.
Ross Munns supports the change to 48 hours because it still grants the employee the leave as
suggested in the draft policy, but it is not a lump sum and the employer is provided a protection
as well.
After brief discussion, the motion carried.
It was the consensus of the Board to change the Century Code citation under section G.2 as
follows: “N.D.C.C. § 54-06-14 and Ch. 54.52.”
It was moved by Kari Landsem, seconded by Petra Hulm, to add the words “domestic
partner” after the word “sibling,” in section D.3.a., line 4.The motion carried.
Ms. Holewa stated for future reference, the House passed an amendment to the statute that would
increase the number of family sick leave hours from 40 to 80 hours. The bill will now go before
the Senate. If it is passed, Justice Kapsner requested it be added to the May agenda.
It was moved by Judge McEvers, seconded by Rod Olson, to approve the Sick Leave policy
as amended and include it in the packet to be forwarded to the Supreme Court for
consideration. The motion carried.
Back to Annual Leave It was moved by Petra Hulm, seconded by Ted Smith, to reinstate section D.2. and change
24 hours of advanced accrual to 48 hours.
Petra Hulm questioned why the policy would not be more generous with sick leave and less
generous on annual leave. She said when you have a medical issue, it is more than just the first
couple of months that are tough, it is the entire first year. Mr. Smith suggested 48 hours is too
high because it is in addition to what the employee is already accruing, and there is always the
option to take time off without pay. Judge McEvers suggested the change is needed to address
the problem that there is with disparity in how the discretion is used throughout the system.
The motion failed.
It was moved by Judge McEvers, seconded by Ross Munns, to reinstate section D.2 as it
was previously written with the 24 hours of annual leave in advance of accrual. The
motion carried.
It was moved by Rod Olson, seconded by Ross Munns, to approve the Annual Leave policy
as amended and include it in the packet to be forwarded to the Supreme Court for
consideration. The motion carried.
Corrective Action Justice Kapsner stated she is concerned with the language referring to the corrective action for
judicial referees. The language states it is an optional method of addressing a judicial referee’s
conduct but does not state what makes it optional.
Ted Smith suggested adding a sentence referring to N.D. Sup. Ct. Admin. R. 13. Judge McEvers
suggested language also be added stating that the referees are at will employees and are subject to
the discipline of the judges of the district.
After discussion, it was moved by Judge McEvers, seconded by Kari Landsem, to modify
section C.1. to read as follows: “Judicial referees serve at the pleasure of the district judges
in the district they serve and are subject to corrective action under N.D. Sup. Ct. Admin. R.
13. The corrective action process below is an optional method of addressing a judicial
referee’s conduct.” The motion carried.
It was the consensus of the Board to change the word “Correction” to “Corrective” in the title of
section C.
It was moved by Petra Hulm, seconded by Ted Smith, to modify sections B.1.c.(2)(a) and
(b) to read as follows: (a) A non-classified employee or an employee in the introductory period may be
dismissed at will - employment may be terminated by the Court System or an
employee at any time, without cause and without notice.
(b) A non-classified employee or an employee in the introductory period is not
subject to the Conflict Resolution policy’s dismissal or reduction in force
appeal review by the Personnel Policy Board.
The motion carried.
It was moved by Judge McEvers, seconded by Ross Munns, to approve the Corrective
Action policy as amended and included it in the packet to be forwarded to the Supreme
Court for consideration. The motion carried.
Assisting Self-Represented Parities Ms. Klein stated the policy was redrafted to change the phrase “court staff” to “employees”.
It was moved by Petra Hulm, seconded by Rod Olson, to approve the Assisting Self-Represented Parties policy and include it in the packet to be forwarded to the Supreme
Court. The motion carried.
Electronic Court Recorder-District Judge and Court Reporter Classifications Ms. Klein said the electronic court recorders (ECR) requested a reclassification and also
proposed some changes in duties. Ms. Klein’s analysis determined that the ECR is appropriately
classified in its current classification, and some of the ECRs are in the process of appealing Ms.
Klein’s decision to the state court administrator.
In reviewing the reclassification request, Ms. Klein noted that although the ECR and court
reporter have different equipment, they have the same essential functions. To address some of
inconsistencies, Ms. Klein drafted proposed changes to the two classifications recommending a
change in job title and changes to correct the inconsistencies in wording. For example, some of
the inconsistencies are one has research skills and the other does not, and one might use
considerable knowledge and one might not. The ECR classification has a proposed change under
the “title of immediate supervisor”. The trial court administrators requested the change in
supervisor because there are four employees currently classified as secretaries who record for
referees and, based on their duties, should be classified as an ECR. The proposal also changes
the wording from “district judge” to “referee or district judge” throughout the classification. The
changes do not affect the pay grade in either of the classifications.
Judge McEvers said from her perspective, there seems to be a wide disparity between pay grades
13 and 10.
Justice Kapsner stated although the court reporters and ECRs overlap in some ways, they do not
do the same job. She said the training and quality of the transcripts are considerably different.
She stated transcripts from ECRs contain too many inaudibles, which is something she has not
received from a reporter. She suggested no changes be made to the court reporter classification.
Rod Olson suggested removing “District Judge” from the title of ECR. This would allow those
four secretaries to be classified as ECRs. He said because there is a difference in the
classifications, he believes it is important to leave the word “recorder” in the ECR title and not
call them both “reporters”. The terms are used every day in court, for example, we use a recorder
for a hearing and a reporter for a trial.
Sally Holewa stated to be consistent with other classifications, the title of the immediate
supervisor could be changed to “varies”, and the words “audio tapes” should be changed to
“storage devices”. She said supports Mr. Olson’s suggestion to change the title so it includes
those four secretaries who record for referees.
In response to a question asking why the word “considerable” would be removed from the
knowledge requirements, Ms. Holewa responded the word “considerable” is not a quantifiable
factor on how the classification is scored. The scoring is based more on experience. She stated
“considerable” is a useless adjective and removing it would not affect the scoring. Ms. Klein
stated that change could be addressed at a later date when the Board reviews the classifications as
a whole to address any inconsistencies.
After discussion, it was moved by Rod Olson, seconded by Ross Munns, that the name of the
classification be changed from “Electronic Court Recorder - District Judge” to “Electronic
Court Recorder”; under the title of immediate supervisor, “District Judges” be changed to
“Varies”; change the wording from “district judge” to “referee or district judge”
throughout the classification; and change “audio tapes” to “storage devices”. The motion
carried.
It was moved by Rod Olson, seconded by Kari Landsem, to approve the Electronic Court
Recorder classification as amended and forward it to the Supreme Court for consideration.
The motion carried.
It was moved by Kari Landsem, seconded by Petra Hulm, to send the Annual Leave, Sick
Leave, and Family Medical Leave Act policies out for comment. The motion carried.
The next meeting is scheduled for May 13, 2011. Justice Kapsner indicated she will be absent.