Personnel Policy Board
August 28, 2009
Bismarck, ND
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
Others Present: Sally Holewa, ex officio
Amy Klein, staff
Renee Barnaby, minutes
Chair Geiger called the meeting to order at 9:00 a.m.
Minutes
It was moved by Judge Paulson, seconded by Justice Kapsner, to approve the June 18, 2009
minutes. The motion carried. It was moved by Judge Hagerty, seconded by Chris Myers,
to approve the August 5, 2009 meeting minutes. The motion carried.
Review Comments to Policy 102 - Funeral Leave
The Funeral Leave section of Policy 102 was sent out to employees for comment. Some of the
comments were to leave out burial, add in stepparents, add spouse's grandparents, and define
domestic partner. Justice Kapsner stated it is important to have bereavement leave for a domestic
partner.
It was moved by Judge Hagerty, seconded by Justice Kapsner, to adopt Judge Hagerty's
definition of domestic partner stopping at the word "welfare" in substitution for what is
being proposed in the draft. The definition will be inserted as subpart "c". The motion
carried.
It was moved by Justice Kapsner, seconded by Judge Hagerty, to amend the policy to
change all the words to the singular sense (for example grandparents should be
grandparent, grandchildren should grandchild, etc.). The motion carried.
After brief discussion, it was decided that a spouse's grandparent would not be added to the list.
It was moved by Justice Kapsner, seconded by Jerrold Arneson, to add stepparent and
stepchild to the list of family members. The motion carried.
With regard to a comment received to delete the word "of" in paragraph 3a, no action was taken.
It was moved by Judge Hagerty, seconded by Judge Paulson, add the words "for funeral
and burial" after the word "allowed" in the first sentence under Funeral and Burial
Leave. The motion carried.
Ms. Klein said she will update the new draft policy on funeral leave based upon the changes
made by the Board.
It was the consensus of the Board to use the outline format for the policies. Staff will draft the
new policies in the outline format.
It was moved by Justice Kapsner, seconded by Judge Paulson, to add an item "d" to the
policy as follows: "For the death of someone not covered by this policy, it is appropriate to
request and use annual leave."
After brief discussion, it was moved by Chris Myers, seconded by Jerrold Arneson, to
modify the motion to strike the words "and use". The motion carried.
The motion carried, as amended, to add an item "d" to the policy.
It was moved by Chris Myers, seconded by Judge Paulson, to delete the words "three work
days" and insert the words "24 working hours" in paragraph 3a under the Funeral and
Burial Leave section. The motion carried.
It was moved by Judge Hagerty, seconded by Gladys Schmitt, to forward the policy to the
Supreme Court for consideration. The motion carried.
Review Comments to Policy 102 - Sick Leave and Bonding
The sick leave and bonding portion of policy 102 was sent out to employees for comment. One
comment was received wherein the employee expressed support for the proposed change. It was
moved by Judge Hagerty, seconded by Justice Kapsner, to forward the policy to the
Supreme Court for consideration. The motion carried.
Review Policy 103 to Define Qualified Candidates
At the last meeting, it was requested that Policy 103 be reviewed at the next regularly scheduled
meeting. Ms. Klein said she drafted proposed language concerning qualified candidates under
section C.1.b. It was moved by Judge Hagerty, seconded by Judge Paulson, to adopt the
proposed language except for the last phrase "and not minimally qualified." The motion
carried and will be sent out to employees for comment.
Policy Manual
Disclaimer
Ms. Klein recalled that the Board suggested the disclaimer be reviewed by Jim Ganje for
accuracy. Because Mr. Ganje's speciality is not employment law, Ms. Klein suggested once the
Board has reviewed the manual it be forwarded to an attorney to review the manual in its
entirety. She noted Kirsten from the Attorney General's Office handles the employment law
issues for the state. Judge Hagerty said Judge Reich also has a strong background in employment
law and might be a good resource to review the policy.
It was the consensus of the Board to substitute the words "in force" for the word "enforced" in
the second line of paragraph three.
It was moved by Justice Kapsner, seconded by Judge Paulson, to eliminate the phrase
"which are expressly revoked" in the third line of the third paragraph. The motion
carried.
It was the consensus of the Board to delete the word "necessarily" in line one of paragraph three.
Equal Employment Opportunity
By consensus, the Board agreed to strike "EEO" and the "s" on "Court Systems".
It was moved by Judge Hagerty, seconded by Jerrold Arneson, to add sexual orientation to
the list. The motion carried.
Justice Kapsner noted that the phrase "except where a bonafide occupational qualification
applies" was omitted from the draft policy and suggested it be added as paragraph B so it can
relate back to the items listed under the first paragraph. The last paragraph in the new policy
would then become paragraph C.
It was consensus of the Board to replace the words "human resources" with "director of human
resources" throughout the policies; to use the word tracking feature to track changes; and to insert
policy numbers at the top of the policies.
It was also the consensus of the Board to table the policy until the next meeting for the purpose
of drafting a paragraph relating to bonafide occupational qualifications.
Employment Status
Ms. Klein recalled the last time the policy was discussed, the Board questioned whether judicial
referees were classified or non-classified. After reviewing the matter, Ms. Klein said the referees
are not in the classified compensation system and they are at will. Judge Hagerty commented
that even though the referees serve at the pleasure of the judges, there are specific procedures in
place for removing them, which is different from other at-will employees. Chris Myers suggested
adding a notation next to judicial referees to refer to the Administrative Rule for disciplinary
action. Judge Hagerty will gather the appropriate rules and procedures regarding referees and
report back at the next meeting.
It was moved by Judge Paulson, seconded by Judge Hagerty, that the following
amendments be made to the first paragraph under the Temporary Employee section: in
the second line, add a period after the word "funded" and delete the word "who" and
insert "They"; and in the third line, insert the word "they" after the word "if". The motion
carried.
It was moved by Judge Paulson, seconded by Justice Kapsner, to table the matter. Judge
Hagerty will draft language relative to the disciplinary action of judicial referees. The
motion carried.
[Rod Olson joined the meeting]
Introductory Period
Amy Klein determined law clerks are regular employees and the way the policy is written is
correct.
It was moved by Judge Hagerty, seconded by Judge Paulson, to modify the third bullet to
read as follows: "An employee may be separated from employment at any time during the
introductory period, without cause and without the right to use the dismissal or reduction
in force appeal process of the Conflict Resolution policy." The motion carried.
By consensus, the Board agreed to remove the parentheses and the numbers throughout the
policies and to remove the bolding from the language in the second bullet.
Justice Kapsner noted the language regarding evaluation provisions has been eliminated from the
new policy and asked if evaluations will still be required of the introductory employee. Ms.
Klein responded that because not all supervisors comply with the process, she removed it from
the policy. Rod Olson stated it should be a requirement especially before an employee goes off
of probation. Judge Paulson added it should be required to move up to the next step. Judge
Hagerty said if that has been the policy, then we should not change it just because some people
are not following it. Ms. Klein agreed it is important to have evaluations but noted it is also
important to follow our policies consistently. If everyone doesn't comply, it might as well not be
a policy because it is not going to hold up.
Judge Hagerty suggested making the 90-day evaluation permissive and the sixth-month
evaluation required. Justice Kapsner stated it seems to be more important to have an evaluation
at the end of probation when it is decided if a person is going to become a regular employee.
It was moved by Justice Kapsner, seconded by Judge Hagerty, to table the matter for the
purpose of drafting new language that addresses item 2b on page 33 regarding the initial
performance appraisal at the end of 90 days. The motion carried.
Supervisory Status
Amy Klein stated some minor changes were made to the first paragraph of the policy and noted
the Supreme Court has already reviewed and approved the rest of the policy. Justice Kapsner
questioned why the phrase in the first paragraph that states "or whose suggestions and
recommendations are given particular weight" is in the policy. Ms. Klein responded the
language is taken from the Fair Labor Standards Act. She explained a person may not actually
have the authority to do many of those functions such as terminate someone or hire, but the
person's input has a lot of weight in the decision.
It was moved by Judge Paulson, seconded by Jerrold Arneson, to include the Supervisory
Status policy in the packet. The motion carried.
Work Schedule
It was moved by Justice Kapsner, seconded by Judge Paulson, to amend the first phrase in
the second sentence under the Breaks and Lunch Periods section, to read: "Employees may
not use their breaks to start work late..." The motion carried.
By consensus, the Board agreed to strike the word "upon" and insert the word "on" in the last
sentence of the last paragraph.
It was moved by Judge Paulson, seconded by Jerrold Arneson, to include the Work
Schedule policy in the packet. The motion carried.
Rod Olson asked if item number 7 from Sally Holewa's memo regarding work breaks would be
included as part of the policy. Item number 7 suggests whenever possible, breaks should be
taken out of the sight of the public. Ms. Klein responded she did not include it in the new policy
and suggested the decision be left up to each individual supervisor.
Overtime
By consensus, the Board agreed to modify the first phase of the second sentence under the
Compensatory Time section to read as follows: "There must be an agreement or understanding
between the employee and the supervisor...".
It was the consensus of the Board to strike the word "non-exempt" from the last sentence under
the Compensatory Time section.
It was moved by Justice Kapsner, seconded by Judge Paulson, to remove the words "not
less than" and insert the word "of" in the first sentence under the Compensatory Time
section. The motion carried.
It was moved by Judge Paulson, seconded by Chris Myers, to include the Overtime policy
in the packet. The motion carried.
It was the consensus of the Board, to replace the word "upon" with the word "on" throughout the
policies.
Pay Deductions
It was the consensus of the Board to delete the word "finance" in the first line of the last
paragraph and insert the words "the finance department".
It was moved by Judge Paulson, seconded by Jerrold Arneson, to include the Pay
Deductions policy as part of the packet. The motion carried.
Compensation Structure for Classified Employees
Ms. Klein said she researched the public relations factor to see how it was used in the Bjorklund
manual. It is actually used multiple ways in the manual so she left it as public relations.
It was moved by Judge Hagerty, seconded by Judge Paulson, to delete the word "for" and
insert the words "to assign" in the first sentence of the first paragraph. The motion
carried.
It was moved by Judge Paulson, seconded by Justice Kapsner, to rephrase the first
sentence of the second paragraph to read: "Job information, including essential functions
and minimum requirements required for the job, is documented in classification
descriptions or job descriptions." The motion carried.
It was moved by Judge Hagerty, seconded by Judge Paulson, to rephrase the second sentence of the third paragraph to read as follows: "The total points scored determine the
pay grade of the job or classification." The motion carried.
Rod Olson suggested the Board consider reviewing and evaluating the five factors of the
classification matrix system at a future meeting.
It was moved by Judge Paulson, seconded by Justice Kapsner, to include the Compensation
Structure for Classified Employees policy as part of the packet. The motion carried.
Salary Administration for Classified Employees
Ms. Klein referred the Board to the highlighted section in paragraph one. The highlighted
portion would add the phrase "if the employee's performance is satisfactory" to the end of the
third sentence. After discussion, the Board decided not to include the language.
Ms. Klein then referred the Board to the highlighted section under the Pay Grade Adjustment
section titled Career Ladder Series Reclassification. She said she drafted new language and
included two options.
[Sally Holewa joined the meeting]
It was moved by Justice Kapsner, seconded by Gladys Schmitt, to eliminate the Career
Ladder Series Reclassification subsection from the policy. The motion carried.
Code of Conduct
Amy Klein recalled at the June 18 meeting, the Board inquired if an employee is required under
the ethics policy to report an offense outside the workplace or any violation of the law. After
reviewing the Code of Conduct policy, she noted the duty to report is listed as section G.
By consensus, the Board changed the second sentence in paragraph two to read as follows:
"Violations may lead to corrective action up to and including dismissal."
It was moved by Justice Kapsner, seconded by Judge Paulson, to rephrase the second
sentence as follows: "Violations of this code may lead to corrective action up to and including
dismissal." The motion carried.
It was moved by Rod Olson, seconded by Gladys Schmitt, to include the Code of Conduct
policy as part of the packet. The motion carried.
Americans with Disabilities Act
Judge Paulson suggested the first sentence state the Court System "must comply", rather than the
Court System "is committed to complying."
By consensus, the Board agreed to insert the word "the" in front the words "Court System" in the
first sentence of the third paragraph.
It was moved by Judge Paulson, seconded by Judge Hagerty, to table the matter and have
staff redraft the third paragraph in shorter, concise sentences. The motion carried. Justice
Kapsner offered her assistance to staff in redrafting the paragraph.
Absenteeism and Tardiness
Chair Geiger said the policy states unscheduled absences are absences that have not been
prescheduled and/or where prior approval has not been received from the employee's supervisor.
He questioned why it does not include those emergency circumstances that are legitimate and are
approved after the fact such as when an employee gets a phone call in the middle of the night that
a family member is in the hospital requiring the employee to leave immediately. Ms. Klein
responded that is one of the reasons an employee gets six occurrences because those things will
happen but not very often. She said it eliminates the legalese in determining if a reason is valid
and allows us to be more consistent. Sally Holewa added it is not mandatory that a supervisor
take an action at six, and it does not automatically lead to disciplinary action. There is an
element of discretion with the supervisor.
Judge Hagerty suggested removing the word "prior" from the first bullet so the phrase would
read "where approval has not been received".
It was the consensus of the Board to take out the numbers in parentheses throughout the manual
and to strike the "/or" in the first bullet under the Excessive Absence or Tardiness section.
It was the consensus of the Board to substitute the words "the supervisor" for the word
"management" in the last hollow bullet.
It was moved by Judge Paulson, seconded by Gladys Schmitt, to include the Absenteeism
and Tardiness policy as part of the packet. The motion carried.
Nepotism
It was moved by Judge Paulson, seconded by Rod Olson, that an employee could not
directly or indirectly supervise the employee's niece or nephew. The motion carried.
It was moved by Justice Kapsner, seconded by Judge Paulson, that an employee could not
directly or indirectly supervise the employee's uncle or aunt or domestic partner. The
motion carried.
Judge Hagerty said the Board defined domestic partner in another policy and questioned whether
it was necessary to define it again or include it in a general definitions section. Mr. Olson
recalled the Board had recently discussed developing a general definitions section.
It was moved by Judge Hagerty, seconded by Judge Paulson, to develop a definitions
section that would include terms such as domestic partner. Ms. Holewa commented she
would be in favor of a definitions section because it would play a role in making the policies
easier to read and eliminate rewriting a definition in each policy. The motion carried. Chair
Geiger asked staff to develop a definitions section and to remove those sections that define those
terms in particular policies and them move them to the definitions section.
It was moved by Gladys Schmitt, seconded by Judge Paulson, to include the Nepotism
policy as part of the packet. The motion carried.
Fraternization
It was moved by Judge Paulson, seconded by Rod Olson, to include the Fraternization
policy as part of the packet. The motion carried.
Harassment
It was moved by Gladys Schmitt, seconded by Rod Olson, to include the Harassment policy
as part of the packet. The motion carried.
Workplace Violence
It was the consensus of the Board to add the word "the" in front of the words "Court System" in
the third line of the second paragraph.
It was moved by Rod Olson, seconded by Jerrold Arneson, to include the Workplace
Violence policy as part of the packet. The motion carried.
Alcohol and Drugs
Amy Klein said the trial court administrators have offered alternative language for paragraph
three. The new language is highlighted and the old language is stricken.
It was moved by Justice Kapsner, seconded by Rod Olson, to adopt the proposed language
in substitution for what is stricken.
Judge Paulson stated the second paragraph refers to violating any federal or state statute and
contemplated whether it was necessary to include city or tribal.
Chair Geiger said the first paragraph refers to both alcohol and drugs and the second paragraph
refers only to drug statutes and doesn't include alcohol. Judge Hagerty suggested it might be
worded as such to comply with any grant requirements to notify of any controlled substance
violations or the Drug Free Workplace Act. Sally Holewa commented the first paragraph covers
the alcohol or drugs with its use, possession, manufacturing, and distribution, and the second
paragraph is just the notification.
It was moved by Judge Hagerty, seconded by Judge Paulson, to table the matter for staff to
make further inquiry into what is required under the federal laws. The motion carried.
Inclement Weather
Amy Klein recalled the policy was tabled at the last meeting. At that meeting, the Board
discussed the possibility of adding the last paragraph on page 103 to the draft policy as follows:
"In the event the courts are closed but a judge (or justice) chooses not to cancel court, any non-exempt staff remaining to assist the judge (or justice) is entitled to additional compensation."
It was moved by Justice Kapsner, seconded by Jerrold Arneson, to include that paragraph
as part of the Inclement Weather policy.
In response to a question from Gladys Schmitt on how to define "additional compensation," Ms.
Holewa responded additional compensation is the employee's regular rate of pay (straight time)
plus compensatory time equal to the amount of time the employee was there after the courthouse
was closed.
The motion carried to include the last paragraph on page 103 as part of the policy.
It was moved by Gladys Schmitt, seconded by Jerrold Arneson, to include the Inclement
Weather policy as part of the packet. The motion carried.
Time to Vote
Amy Klein said Time to Vote is a new policy and not currently one of the Court System's
policies. It was moved by Judge Hagerty, seconded by Jerrold Arneson, to approve the
Time to Vote policy. Sally Holewa commented in order to receive the time off, an employee
would have to show that the polls are not open either before or after work or during the lunch
hour.
It was the consensus of the Board to change the word "or" to "and" in the first paragraph and to
delete the word "when" from the phrase "when polls are open" in the second paragraph.
The motion carried.
It was moved by Justice Kapsner, second by Jerrold Arneson, to include the Time to Vote
policy as part of the packet. The motion carried.
Personnel Records
Ms. Klein stated comments on the policy were emailed to Board members but have not yet been
reviewed. Members' comments were to delete the Open Record section and add the Personal
Information section.
It was moved by Rod Olson, seconded by Justice Kapsner, to approve the Personnel
Records policy as proposed.
Ted Smith asked if, in the first paragraph under the Personnel Files section, the word
"document" defines "grievance" or if it refers to any grievance. Ms. Klein responded it refers
back to document because the intent is so that the employee is aware it is in their file.
It was the consensus of the Board to insert the word "a" before for the word "grievance" in the
first sentence under the Personnel Files section.
The motion carried.
It was moved by Gladys Schmitt, seconded by Jerrold Arneson, to include the Personnel
Records policy as part of the packet. The motion carried.
Electronic Communication Devices
Amy Klein said the policy is a new policy from ITD, who has policies for agencies to use. The
term Electronic Communication Device (ECD) is a general term to cover any type of technology
communication that may be used in the workplace.
It was moved by Jerrold Arneson, seconded by Rod Olson, to approve the Electronic
Communication Devices policy.
Chair Geiger said under the Standards of Conduct section, it states an employee is solely
responsible and shall be held personally liable. He questioned the use of the word "shall." Sally
Holewa said she prefers the word "shall" because it is outside the scope of the employee's
activity and the employee is responsible. If the supervisor confirms the activity was under the
employee's employment, then the employee would be treated as other activities undertaken by
the employee within the scope of employment.
[Gladys left the meeting]
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.
It was moved by Judge Paulson, seconded by Justice Kapsner, to include the Electronic
Communication Devices policy as part of the packet. The motion carried.
Personnel Policy Board
Amy Klein said under the Duties and Responsibilities section in the current policy, it states the
Board shall "conduct employee discipline reviews." Ms. Klein said she did not include that duty
in the draft policy because it is already covered under the Grievance policy.
It was moved by Justice Kapsner, seconded by Judge Hagerty, to change the word
"chairperson" to "chair" in the Membership section. The motion carried.
It was moved by Rod Olson, seconded by Justice Kapsner to strike the word "unit" in the
last bullet referring to the trial court administrator. The motion carried.
Chair Geiger referred the Board to the first paragraph under the Conflict of Interest section and
questioned if the language was too broad. Ms. Holewa commented the use of the word
"proceedings" is sufficient because it is different from a regular board discussion or vote.
Judge Paulson stated it would be a conflict of interest if one of the Board members has a
reclassification request before the Board for someone they supervise. He suggested the Board
member be involved in the discussion, but not be allowed to vote.
Mr. Olson said if we bring a reclassification request for a whole classification, rather than just
one person, it is for the betterment of the system, not for the betterment of a person, so in that
situation the Board member should be allowed to vote.
[Judge Hagerty left the meeting]
After further discussion, it was moved by Justice Kapsner, seconded by Jerrold Arneson, to
insert the words "from voting" after the word "disqualified" and insert the word "appeal"
before the word "proceedings" in the first sentence under the Conflict of Interest section.
The motion carried.
It was moved by Rod Olson, second by Jerrold Arneson, to include the Personnel Policy
Board policy as part of the packet. The motion carried.
Professional Development
Amy Klein explained under the draft Professional Development policy, a couple of forms were
developed. One of the forms is the Authorization for Out-of-State Travel. Instead of listing all
the requirements in a policy, Ms. Klein developed a form asking for the required information,
which should simplify the process. She also drafted some ideas on tuition reimbursement as the
current policy is somewhat limited.
It was moved by Rod Olson, seconded by Jerrold Arneson, to approve the draft policy.
In response to a question from Rod Olson asking if an employee must submit an application for
out-of-state travel to the Chief Justice if the travel has already been built into the budget, Sally
Holewa responded no. She said when we allocate the budget, we look at the travel expenses on
the worksheet that is submitted, so when it is adopted into the budget it is preauthorized at that
point. The application would then be used for anything beyond that point.
Justice Kapsner said according to how the policy reads every request for out-of-state training
need to be sent to the Chief Justice for approval. She said although she hasn't visited with the
Chief Justice, she is not sure it is his intent to review every budget request if it is within
budget. She suggested language be developed in the policy stating if the request is within the
budget, it should be submitted to the supervisor for approval.
Ms. Holewa noted this policy only applies to employees. The judges are covered under another
policy.
In response to a question from Chair Geiger on how the $5,000 amount was arrived at for tuition
reimbursement, Ms. Klein indicated it is a starting point.
Justice Kapsner suggested Ms. Holewa have a discussion with the Chief Justice about the
particular line of authority and the tuition reimbursement before the Board makes any decisions
on the policy.
It was the consensus of the Board to insert the word "and" after the semicolon in the second line
of the second paragraph under the Tuition Reimbursement section.
After further discussion, it was moved by Judge Paulson, seconded by Justice Kapsner, to
table the matter so Sally Holewa can discuss out-of-state training and tuition
reimbursement with the Chief Justice. The motion carried.
Service and Retirement Awards
Amy Klein said in the new draft policy, the dollar amounts of the service awards have been
updated to match the Executive Branch. She said she also states in the policy that cash and gift
cards are taxable.
It was moved by Judge Paulson, seconded by Jerrold Arneson, to approve the proposed
policy and the changes contained in it.
Chair Geiger stated the current policy includes categories such as effective date and funding and
questioned if they should be included in the new policy. Rod Olson suggested it should be
effective if and when the Supreme Court approves it.
Chair Geiger noted that in the second paragraph under the Service Awards section, it states "an
employee's years of service with the Court System under this policy also includes employment
with the district clerk of court's office upon absorption in the Court System." He said the current
policy states "before" they were absorbed into the system.
After further discussion, it was moved by Ted Smith, seconded by Rod Olson, to delete the
word "upon" and insert the word "prior to" before the phrase "absorption in the Court
System" in the first sentence in paragraph two. The motion carried.
It was moved by Justice Kapsner, seconded by Judge Paulson, to insert the words "county
or" before the words "district clerk" in the first sentence of paragraph two. The motion
carried.
With regard to the funding section in the current policy, Ms. Klein suggested it not be included in
the new policy because if funding becomes an issue, the Service Award Program policy is not the
only policy that would be affected so it wouldn't need to be specifically addressed in this policy.
A policy can be amended or suspended temporarily if necessary.
The motion carried to approve the proposed policy as amended.
It was moved by Judge Paulson, seconded by Chris Myers, to include the Service and
Retirement Award policy as part of the packet. The motion carried.
The September 22, 2009 conference call has been cancelled. The next meeting is November 10,
2009, from 9 a.m. to 3 p.m., in Bismarck.
It was moved by Judge Paulson to adjourn the meeting.