Members Present: Hon. M. Richard Geiger, Chair; Jerrold Arneson; Hon. Gail Hagerty; Hon.
Carol Ronning Kapsner; Chris Myers; Rod Olson; Hon. John T. Paulson;
Gladys Schmitt; and Ted Smith
Chair Geiger called the meeting to order at 9:00 a.m.
Minutes It was moved by Judge Paulson, seconded by Judge Hagerty, to approve the August 28,
2009 minutes.
It was moved by Justice Kapsner, seconded by Ted Smith, that the first sentence in the
third paragraph on page 11 of the minutes read as follows: "After a lengthy discussion, the
Board decided the policy clearly states that if a state owned ECD is used by an employee, it
is subject to examination by the Court System and may be disclosed under subpoena or
other process." The motion carried.
The motion carried to approve the minutes as amended.
Review Comments to Policy 103 - Employee Compensation The proposed changes to Policy 103 were sent out to employees for comment. One comment
was received.
It was moved by Rod Olson, seconded by Judge Paulson, to forward the proposed changes
to Policy 103 to the Supreme Court for consideration.
In response to a question from Rod Olson asking if the Board would be addressing the
compression issue in the future, Ms. Klein said that Sally Holewa previously sent a letter to
all employees addressing the issue.
Judge Hagerty suggested that perhaps Ms. Holewa's letter should be added to court policy.
Justice Kapsner commented that the policy is in the step system.
Ms. Klein said she would consult with Ms. Holewa to inform her of the concerns and to
determine if the letter should be sent out again.
The motion carried to send the proposed changes to policy 103 the Supreme Court for
consideration.
Policy Manual
Equal Employment Opportunity Since the policy was last reviewed, the bona fide occupational qualification was added.
It was moved by Judge Paulson, seconded by Justice Kapsner, to approve the proposed
changes to the Equal Employment Opportunity policy and include it in the packet.
It was moved by Judge Paulson to amend the second sentence in paragraph A to read as
follows: "The Court System provides equal employment opportunities to all employees
and applicants for employment, except where a bona fide occupational qualification exists,
without regard to:" The motion died for a lack of a second.
Chair Geiger said paragraph B states it is not a discriminatory practice to consider any of the
factors listed above, except race and color. He questioned whether national origin, sexual
orientation, or religion should be added. Justice Kapsner commented the EEOC expressly
prohibits race and color. To consider others, we would first have to define why it is a reasonably
necessary qualification.
The motion carried.
Employment Status It was moved by Judge Paulson, seconded by Jerrold Arneson, to approve the proposed
changes.
It was moved by Judge Paulson, seconded by Judge Hagerty, to modify the second
paragraph to read: "There are two types of regular employees, classified and non-classified:". The motion carried.
Judge Hagerty distributed copies of the current policies that apply to judicial referees. There is a
disciplinary procedure that is currently in place with regard to referees, which is missing in the
new policy. The new policy states that the referees are supervised by the presiding judge and are
at will. Under the current policy, referees are not completely at will because of the dismissal
process and it involves more than just the presiding judge. The rule states a referee may be
dismissed for an identifiable pattern of inappropriate judgment in the opinion of a majority of the
district court judges in the judicial district in which the referee serves.
Ms. Klein said the way the discipline procedure is written in the new handbook, referees are not
given any special rules and are considered employees like everybody else. If referees are not at
will, then they should be considered classified and must have cause for termination.
Judge Paulson suggested we could list them under classified employees for purposes of this rule
and then refer to the court rule for disciplinary procedures.
After further discussion, it was moved by Ted Smith, seconded by Judge Paulson, to add a
third classification for referees so the second paragraph would read as follows: "There are
three types of regular employees, classified employees, non-classified employees, and
judicial referees:". Judicial referees would be removed from the bulleted list under non-classified employees and listed as a third category called Judicial Referees. The motion
carried.
It was moved by Judge Paulson, seconded by Justice Kapsner, to table the matter to allow
staff time to draft a definition for judicial referees and to determine what other policies are
impacted. The motion carried.
It was moved by Chris Myers, seconded by Judge Hagerty, that in the second sentence of
the first paragraph under the Temporary Employees section, the word "they" be removed
and the words "temporary employees" be inserted, and in the third sentence the word
"they" be replaced with the words "the temporary employee". The motion carried.
It was moved by Judge Paulson, seconded by Ted Smith, that in the second sentence of the
first paragraph under Temporary Employees, the words "paid for by the Court System" be
deleted, and the "s" be removed from the word "insurances" in the third sentence. The
motion carried.
Introductory Period It was moved by Judge Paulson, seconded by Jerrold Arneson, to approve the proposed
changes to the Introductory Period policy.
It was moved by Judge Paulson, seconded by Judge Hagerty, to strike the words "purpose
of the" in the first sentence of the first paragraph and insert the word "used" after the
word "is". The motion carried.
It was moved by Judge Geiger, seconded by Judge Hagerty, to use the phrase "terminate
the employment relationship" rather than "terminate the employee" throughout the
policy. The motion carried.
It was moved by Justice Kapsner, seconded by Judge Paulson, to use the phrase "terminate
the employment" rather than "terminate the employment relationship" throughout the
policy. The motion carried.
It was moved by Judge Hagerty, seconded by Judge Paulson, to delete the phrase "Court
System determines that the" in the first sentence of under the third bullet. The motion
carried.
It was the consensus of the Board, that the titles of forms referred to in the policies should not be
capitalized, and when language refers to a specific policy, the title of the policy should be
capitalized.
Ms. Klein noted she will be adding links to the forms referred to in the policies.
It was moved by Rod Olson, seconded by Judge Paulson, that in the first sentence under
the fourth bullet, the words "guidance and" be deleted and the words "guidance from" be
inserted before the phrase "the Human Resource Director". The motion carried.
It was moved by Justice Kapsner, seconded by Ted Smith, that in the first sentence under
the fourth bullet, the word "supervisor's" be deleted and the word "employee's" be
inserted. The motion carried.
It was moved by Judge Paulson, seconded by Chris Myers, to include the Introductory
Period policy in the packet. The motion carried.
Americans with Disabilities Act It was moved by Judge Paulson, seconded by Jerrold Arneson, to approve the proposed
changes to the Americans with Disabilities Act policy.
It was moved by Judge Paulson, seconded by Justice Kapsner, to strike the word "is" in the
last sentence of the first paragraph under Accommodation Request. The motion carried.
The motion carried to approve the proposed changes as amended.
It was moved by Judge Paulson, seconded by Rod Olson, to include the Americans with
Disabilities Act policy in the packet. The motion carried.
Alcohol and Drugs Amy Klein recalled at the last meeting, the Board asked her to verify the wording in the second
paragraph. She said the wording is from the Drug Free Workplace Act.
It was moved by Rod Olson, seconded by Judge Paulson, to approve the proposed changes
to the Alcohol and Drugs policy and include it in the packet. The motion carried.
Professional Development Ms. Klein said Sally Holewa spoke with the Chief Justice regarding the draft policy. He
suggested the policy be written in such a way discourage someone from working for the court
just long enough to get the employee's education paid and then leave. He also indicated an
option to waive that requirement, if there are circumstances that might warrant it.
It was moved by Rod Olson, seconded by Jerrold Arneson, to approve the draft changes to
the Professional Development policy and include it as part of the packet. The motion
carried.
PERS Benefits It was moved by Ted Smith, seconded by Judge Paulson, to add the following sentence to
the first paragraph: "Regular employees working at least 20 hours per week for more than
20 weeks each year are eligible for the following benefits:" All other paragraphs will be
edited to remove that sentence. Under the Medical Insurance paragraph, the words "is
available" will be inserted after the words "Group medical insurance coverage". The other
paragraphs will follow a similar format. Under the Retirement Plan paragraph, the first
paragraph will be rephrased as follows: "Regular employees must participate in the
retirement plan." The motion carried.
It was moved by Judge Paulson, seconded by Judge Hagerty, to strike the following
sentence in Medical Insurance paragraph: "The Court System pays the full premium for
both individual and family coverage." The motion carried.
Ted Smith noted he prefers to keep the sentence in the paragraph for informational purposes.
Gladys Schmitt indicated she likes the policy because it lists all of the benefits rather than having
to look each up individually.
It was moved by Justice Kapsner, seconded by Rod Olson, to add a second sentence in the
first paragraph as follows: "Benefits are subject to change."
Mr. Smith suggested removing the language stating "the first day of the month following the start
of their employment" because it is irrelevant to current employees. New employees will receive
the information in their employment letter.
Judge Hagerty said to be consistent, we should include how the premiums are paid under Long-Term Care Insurance.
The motion carried
It was moved by Justice Kapsner, seconded by Gladys Schmitt, to add a sentence at the end
of the policy referring employees to the PERS website for further information. The motion
carried.
It was moved by Judge Hagerty, seconded by Justice Kapsner, to table to allow staff time to
redraft the policy for review at the next meeting. The motion carried.
Holidays It was moved by Gladys Schmitt, seconded by Jerrold Arneson, to approve the Holidays
policy.
It was moved by Chris Myers, seconded by Justice Kapsner, that in the fourth paragraph,
the words "the courthouse" should be changed to "that courthouse".The motion carried.
Rod Olson said in reviewing the policy with Sally Holewa, she said if the courthouse is closed,
court employees are not required to take annual leave.
The motion carried to approve the policy.
It was moved by Gladys Schmitt, seconded by Ted Smith, to include the Holidays policy as
part of the packet. The motion carried.
Annual Leave Amy Klein said the current policy allows for a negative leave balance or advanced accrual if
approved by the appointing authority. The draft policy does not include advanced accrual. She
said if the Board wishes to include it, she suggested it only be available to new employees.
It was moved by Rod Olson, seconded by Gladys Schmitt, to approve the Annual Leave
policy.
Rod Olson said if an emergency arises, an employee could take leave without pay or use flex
hours or comp time to make up for the hours missed. He said in Unit 2, an employee cannot use
more than three days or 24 working hours and it is at the supervisor's discretion.
Ms. Klein said if someone leaves employment and they owe the state money, it is very
complicated to collect.
It was moved by Judge Hagerty, seconded by Gladys Schmitt, to insert a paragraph stating
that during the first year of employment, an employee can have a negative balance of up to
24 working hours if approved by the supervisor and if the employee signs a form that states
if they leave employment with a negative balance, the funds can be deducted from their
final pay check. Staff will insert the language where appropriate. The motion carried.
It was moved by Judge Hagerty, seconded by Jerrold Arneson, to modify the second
sentence in the fourth paragraph to read as follows: "Hours in excess of 240 will be
forfeited if not used by April 30 of each year." The motion carried.
It was moved by Justice Kapsner, seconded by Judge Paulson, to table the matter to allow
staff time to redraft and bring it back for review at the next meeting. The motion carried.
Sick Leave It was moved by Judge Paulson, seconded by Judge Hagerty, to rephrase the first sentence,
of the first paragraph to read: "Sick leave has been provided for the occasional illness with
the expectation employees will reserve sick leave for serious health conditions." The
motion carried.
It was moved by Judge Hagerty, seconded by Judge Paulson, to insert the same type of
language used in the Annual Leave policy stating that during the first year of employment,
an employee can have a negative balance of up to 24 working hours if approved by the
supervisor and if the employee signs a form that states if they leave employment with a
negative balance, the funds can be deducted from their final pay check. The motion
carried.
Chair Geiger noted the reference to county employees is omitted from the draft policy and
suggested it be included under Terminations/Transfers. Judge Hagerty agreed it is informational
and helpful and should be collected in one place.
Chair Geiger also noted the reference to the 176 hour bank of sick leave is not in the draft policy.
Ms. Klein said she will include both of those items in the redraft.
Chair Geiger said he noticed abuse of policy and other items are not included in the draft and
asked if a memo could be drafted explaining the reasons for the exclusion.
By consensus, the Board agreed to strike the words "Please note" in the first sentence in
paragraph five.
Judge Paulson suggested the words "or a State agency" be deleted in the first sentence under
Reinstatements paragraph.
Under the Reinstatements paragraph, it was suggested the first sentence state that "If an
employee leaves state employment and is hired by the court system within one year..." It was
suggested that be included in the redraft.
Ms. Klein said the policy allows family sick leave for a family member who is "verifiably
dependent on the employee for care". She asked the Board if restrictions or rules should be
included. The Board decided that verifiably implies the ability to ask for a written explanation
and decided to leave the language as written.
It was moved by Judge Hagerty, seconded by Jerrold Arneson, to table the matter to allow
staff time to rewrite the policy. The motion carried.
Leave Sharing It was moved by Rod Olson, seconded by Justice Kapsner, to approve the Leave Sharing
policy.
An error was noted in the third paragraph. The leave balance should reflect 80 hours, rather than
40.
It was the consensus of the Board to delete the word "only" in the first sentence of the second
paragraph.
It was the consensus of the Board that rather than use the executive branch leave form, a new
form will be developed for judicial employees.
The motion carried.
It was moved by Judge Paulson, seconded by Jerrold Arneson, to include the Leave
Sharing policy as part of the packet. The motion carried.
Funeral and Burial Leave It was moved by Judge Paulson, seconded by Jerrold Arneson, to approve the Funeral and
Burial Leave policy.
After discussion, it was moved by Judge Hagerty, seconded by Justice Kapsner, to add the
following sentence in the policy: "An employee using funeral or burial leave must give as
much notice as possible to the employee's supervisor." The motion carried.
The motion carried to approve the policy as amended.
It was moved by Gladys Schmitt, seconded by Jerrold Arneson, to include the Funeral and
Burial policy as part of the packet. The motion carried.
Emergency and Disaster Services Volunteer Leave This is a new policy to the Court System.
It was moved by Gladys Schmitt, seconded by Jerrold Arneson, to modify the paragraph
under Short-Term Emergency Services Volunteers Leave to read as follows: "The Chief
Justice may grant temporary short-term leave with pay to a regular full-time employee for
the purpose of allowing the employee to respond to a public emergency." The motion
carried.
It was the consensus of the Board to add capitalization to the words "Red Cross" in last sentence
of paragraph one.
It was moved by Rod Olson, seconded by Jerrold Arneson, to approve the Emergency and
Disaster Services Volunteer Leave policy and include it in the packet. The motion carried.
Organ or Bone Marrow Donation This policy is new to the Court System.
It was moved by Judge Hagerty, seconded by Jerrold Arneson, to approve the Organ or
Bone Marrow Donation policy.
It was the consensus of the Board to delete the word "total" in the last line of paragraph two.
It was the consensus of the Board to write out numbers up to 10 and then use numerical numbers
thereafter.
In response to a question from Justice Kapsner on who approves such requests in other agencies,
Ms. Klein responded it is typically the head of each agency. However, requests do not come up
very often.
The motion carried.
It was moved by Judge Hagerty, seconded by Justice Kapsner, to include the Organ or
Bone Marrow Donation policy as part of the packet. The motion carried.
Jury Duty and Witness Leave Chair Geiger questioned whether 102(F) (5) (a-f) from the current policy is included in the new
policy. Amy Klein responded it is, but it is worded differently.
It was the consensus of the Board to deleted the words "for the State of North Dakota" in the last
line of paragraph two.
It was moved by Justice Kapsner, seconded by Gladys Schmitt, to approve the Jury Duty
and Witness Leave policy.
It was moved by Ted Smith, seconded by Judge Paulson, to delete the words "or as an
expert witness" in the first line of paragraph two. The motion carried.
It was moved by Judge Paulson, seconded by Jerrold Arneson, to include the Jury Duty
and Witness Leave policy as part of the packet. The motion carried.
Military Leave It was moved by Rod Olson, seconded by Judge Paulson, to approve the Military Leave
policy.
It was moved by Judge Paulson, seconded by Jerrold Arneson, to strike the words "by the
President" in the third line of the first paragraph. The motion carried.
It was moved by Judge Hagerty, seconded by Judge Paulson, to strike the parenthetical
phrase at the end of the first paragraph and insert the following sentence: "Military leave
may be taken for active duty training." The motion carried.
The motion carried to approve the policy.
It was moved by Judge Hagerty, seconded by Judge Paulson, to table and refer back to
staff for redrafting. The motion carried.
Leave Without Pay It was moved by Judge Paulson, seconded by Judge Hagerty, to approve the Leave Without
Pay policy.
It was the consensus of the Board to delete the word "up to" in the second line of the first
paragraph.
It was moved by Judge Hagerty, seconded by Judge Paulson, to delete the words "of a
regular employee" in the first line of the first paragraph. The motion carried.
It was moved by Judge Hagerty, seconded by Justice Kapsner, to delete the words "of a
regular employee" in the first sentence of the second paragraph. The motion carried.
It was moved by Judge Paulson, seconded by Justice Kapsner, to delete the words "on the
part of" and insert the word "with" in the first line of the third paragraph. The motion
carried.
It was the consensus of the Board to rephrase the last sentence in paragraph three as follows: "A
request for leave without pay or educational leave must be made by completing the leave without
pay form. It may be granted if:"
It was the consensus of the Board to insert a semicolon after the bulleted series and insert the
word "and" after semicolon on the third bulleted item.
The motion carried to approve the policy as modified.
It was moved by Judge Paulson, seconded by Justice Kapsner, to include the Leave Without Pay policy as part of the packet. The motion carried.
Family and Medical Leave Amy Klein said the court system is more generous than the federal law. The court system grants
16 weeks of unpaid leave and the federal law allows 12 weeks leave. The court system also
includes leave to care for a grandchild and sibling, which are not included under the federal law.
It was noted the policy should be titled Family and Medical Leave Act
It was moved by Judge Paulson, seconded by Chris Myers, to approve the Family and
Medical Leave policy.
It was moved by Judge Hagerty, seconded by Judge Paulson, to rephrase the beginning of
the first sentence of paragraph two to read as follows: "The FMLA should not be confused
with Family Sick Leave (policy ____) which is an employee's accrued sick leave...". The
motion carried.
It was moved by Ted Smith, seconded by Judge Paulson, to change "12" to "16" in the
sixth bulleted item under Requirements. The motion carried.
The motion carried to approve the policy as amended.
It was moved by Judge Paulson, seconded by Gladys Schmitt, to include the Family and
Medical Leave policy as part of the packet. The motion carried.
Employee Assistance Program Amy Klein noted she removed the entire section from the current policy referring an employee to
EAP. The EAP is there to help the employee but by no means can a supervisor make an
employee go or even if you do follow the reporting procedures, you cannot use attendance as a
factor of continued employment.
It was moved by Judge Paulson, seconded by Jerrold Arneson, to approve the Employee
Assistance Program policy.
It was moved by Justice Kapsner, seconded by Judge Paulson, to delete the words "special"
and "resource" in the first line of paragraph one. The motion carried.
Judge Paulson suggested the words "and/or" be deleted in the second line of paragraph one.
Judge Hagerty suggested the entire sentence be rewritten. She said the new policy also omits a
lot of the current procedures stating when the supervisor has the responsibility to make referrals
EAP services.
It was moved by Judge Hagerty, seconded by Judge Paulson, to table to allow staff time to
rewrite the policy so the Board can compare the two policies. The motion carried.
Ms. Klein stated she believes the language in the current policy referring employees to EAP
should be removed. She said a supervisor can suggest an employee attend EAP, but the decision
to terminate an employee has nothing to do with whether or not they attended EAP. A decision
to terminate has to be job related. She said the EAP is a benefit employees have outside of work
that they can use for anything they choose. She suggested adding a paragraph to the draft policy
so employees are aware a supervisor could refer them to EAP for performance problems.
Judge Hagerty views it as a way to give employees an option to do something meaningful to help
an employee. She said the draft needs to be more clear that this is available and the primary
function is to help with work performance. It is an option for a supervisor who notices work
related problems to make that referral and would be a step along the way to try and correct
things.
Gladys Schmitt suggested using the word "suggest" rather than mandating.
Justice Kapsner said it is also important that the employee knows that it is confidential and if
they do use the services, it is not something that is going to impact them adversely.
Lawsuits Against Employees It was moved by Judge Paulson, seconded by Jerrold Arneson, to approve the Lawsuits
Against Employees policy.
Chair Geiger suggested a colon be inserted after the word "followed" in the first paragraph.
The motion carried.
It was moved by Justice Kapsner, second Chris Myers, to include the Lawsuit Against
Employees policy as part of the packet. The motion carried.
Public Employee Relations Act This policy is new to the Court System and is not in our current handbook. It is already part of
state law.
Justice Kapsner stated the policy will not work the way it is drafted.
It was moved by Judge Paulson, seconded by Ted Smith, to approve the Public Employees
Relations Act policy. The motion failed and will not be included in the policy manual.
Conduct It was moved by Justice Kapsner, seconded by Gladys Schmitt, to approve the Conduct
policy.
It was moved by Justice Kapsner, seconded by Judge Hagerty, by to strike "incompetence"
as a bullet. The motion carried.
It was moved by Justice Kapsner, seconded by Judge Hagerty, to include the first five
bullets as is, modify the sixth bullet to read, "Removal of state property or information
without prior consent", eliminate the seventh bullet, modify the eight bullet to read
"disruptive or offensive behavior on the job", include the ninth through the eleventh
bullets as is, and eliminate the rest. The motion carried.
The motion carried to approve the policy as modified.
It was moved by Justice Kapsner, seconded by Chris Myers, to include the Conduct policy
as part of the packet. The motion carried.
Corrective Action It was moved by Gladys Schmitt, seconded by Rod Olson, to approve the Corrective Action
policy.
Amy Klein said oral action is the first type of corrective action and it implemented after the
coaching sessions.
Rod Olson said in his unit, if the action is serious, a notice form it given to the employee stating
what needs to be corrected. It is then retained in a working file. It is not sent to human
resources. Rod will send it to Ms. Klein for review.
It was moved by Chair Geiger that Oral Action be re-titled as "Level I Written Action,"
and Written Action be re-titled as "Level II Written Action." The motion died for a lack of
a second.
It was moved by Gladys Schmitt, seconded by Rod Olson, to change the subtitle Oral
Action to "Preliminary Notice" and to change the subtitle Written Action to "Written
Reprimand". The motion carried.
It was moved by Justice Kapsner, seconded by Ted Smith, to change the words "specific
behavior" in the first sentence to "conduct", change the word "behavior" to "conduct" in
the second sentence, and in the last sentence the words "previous oral document(s)" will be
changed to "preliminary notice". The motion carried.
Justice Kapsner said under Written Reprimand, the procedures are not listed. The conduct
should be identified again and noticed to the employee. The language is needed for those
instances that go straight to a reprimand.
Ms. Klein said the procedures are identified in the corrective action memo, which is the form that
is to be completed by the supervisor and signed by the employee. If the employee do not agree,
they can file a written reply and follow the grievance policy.
Judge Hagerty suggested the substance in the corrective action memo should be included in the
policy so the procedures are outlined for the employee.
It was moved by Judge Paulson, seconded by Gladys Schmitt, to table for redraft. With the
consent of the second, the motion was withdrawn.
It was moved by Judge Hagerty, seconded by Judge Hagerty, to modify the second sentence
under Suspension to read as follows: "A suspension must be approved by the appointing
authority and notice must be given to the Human Resource Director." The motion carried.
Because of time constraints, it was the consensus of the Board to continue discussion of the
policy at the next meeting. Ms. Klein indicated she would incorporate the changes made to date
and bring them back for review at the next meeting.
It was moved by Judge Paulson to adjourn the meeting, motion carried.