December 5, 2006
Project Room A, Heritage Center
Members Present: Hon. M. Richard Geiger, Chair; Hon. Carol Ronning Kapsner; Rodney Olson; Kurt Schmidt; and Gladys Schmitt; Jeanne Walstad
Members Absent: Hon. Ronald Hilden; Hon. John T. Paulson
Others Present: Mike Sandal, Staff
Sally Holewa, Ex Officio Member
Renee Barnaby, Scribe
Chair Geiger called the meeting to order at 10:00 a.m. The first item on the agenda was the approval of the Minutes of the August 2006 meeting. A typographical error was noted on page 4.
It was moved by Justice Kapsner, seconded by Gladys Schmitt, to approve the minutes, as corrected. The motion carried.
Comments were received on Policy 120, Veterans' Preference. It was the consensus of the Board to correct the statute referred to under section IV(A) to read 37-19.1-01(3), N.D.C.C.
It was moved by Jeanne Walstad, seconded by Justice Kapsner, to forward Policy 120, as modified, to the Supreme Court for consideration. The motion carried.
Code of Conduct for Judicial Employees
Chief Justice VandeWalle asked the Board to draft a code of conduct for judicial employees. Mike Sandal said the draft policy was reviewed by the trial court administrative personnel (TCAP) group, who did not have any comments on the proposal. The purpose of the code is to set the tone from which existing policy or any future policy could be drafted.
Sally Holewa said as the judiciary has expanded over the years, there has become a need to replace informal expectations with a formal code.
It was moved by Rod Olson, seconded by Kurt Schmidt, to approve the Code of Conduct for Judicial Employees and present it to the Supreme Court for consideration.
It was moved by Kurt Schmidt, seconded by Jeanne Walstad, to change the word "judges" to "judicial officers" throughout the document. The motion carried.
It was moved by Justice Kapsner, seconded by Jeanne Walstad, to strike the words "shall not communicate personal knowledge about the facts of a pending case to the judge assigned to the case and" from section III(F).
Mr. Olson and Gladys Schmitt suggested that removing the sentence would make it difficult for an employee to know exactly what is being requested of him or her.
Jeanne Walstad commented that sometimes it is essential for an employee to communicate personal knowledge to the judicial officer so that individual can recuse themselves from the case, if necessary.
With the consent of the second, the motion was withdrawn.
Jeanne Walstad suggested changing the word "shall" to "must" throughout the document when appropriate. The word "shall" means "is required to" and refers to a person. Must refers to a thing or a person's status. She is particularly bothered by the words "shall not" because we are negating shall. She suggested changing the words "shall not" to "may not."
It was suggested the use of the word "may" is permissive.
Rod Olson said the word "shall" is used in a lot of the statutes so it is familiar to the judicial employees, bringing consistency to everyday work.
Chair Geiger said the federal rules have gone from "shall" to "must," and the Joint Procedures Committee is editing the Rules of Procedure to be consistent the federal rules.
Ms. Walstad commented that new statutes avoid the words "shall not."
It was moved by Jeanne Walstad to change the words "shall not" to "may not" throughout the document. The motion died for a lack of a second.
It was moved by Kurt Schmidt, seconded by Gladys Schmitt, to modify the language in section V(C) to read: "Judicial employees shall not discriminate in favor of or against any subordinate, applicant for judicial employment, or any member of the public because of political affiliation." The motion carried.
It was moved by Justice Kapsner, seconded by Jeanne Walstad, to insert commas in the language in section III(C) to read as follows: "Prejudice. Judicial employees shall perform their duties without bias or prejudice, and shall not manifest, by words or conduct, bias or prejudicial based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status." The motion carried.
Chair Geiger referred the Board to section IV(D). The section states employees shall not use their positions or offices to solicit funds. He suggested expanding that to include any kind of benefits.
It was moved by Justice Kapsner, seconded by Rod Olson, to modify the first sentence in section V(A) changing the words "may not" to "shall not" for consistency. The motion carried.
It was moved by Jeanne Walstad, seconded by Kurt Schmidt, to give Mike Sandal the authority to edit the draft policy in order to be consistent with the singular sense. The motion carried.
After further discussion, it was moved by Rod Olson, seconded by Gladys Schmitt, that consideration of the draft policy be tabled.
After discussion, with the consent of the second, the motion was withdrawn.
It was moved by Rod Olson, seconded by Kurt Schmidt, to send the Code of Conduct for Judicial Employees to the Chief Justice with the proposed changes. The motion carried.
At the last meeting, the Board directed the draft changes to the Nepotism Policy be sent out to employees for comment. One comment was received from the TCAP group.
Sally Holewa said the TCAP group and the state court administrative staff were looking for a policy that would not penalize people already in the system. She said most of the proposed changes relate to the direct supervisory responsibilities being assigned to another supervisor.
Jeanne Walstad inquired why the TCAPs list a date of August 1, 1999 in their proposal and what happens to the employees between 1999 and when the policy is adopted. Rod Olson responded no other situations occur after 1999.
Justice Kapsner suggested the language read the relationship would have existed after rather than prior to August 1, 1999. Mr. Olson responded it needs to be prior to August 1 because there are no situations after that date.
Chair Geiger said the first paragraph defines the type of relationship that would constitute nepotism and states it is prohibited. The second paragraph acknowledges that before August 1, 1999, relationships may have existed and addresses those situations.
Justice Kapsner suggested no date be referenced in the second paragraph.
After further discussion, it was moved by Rod Olson, seconded by Kurt Schmidt, to strike the phrase "as a result of this section" from the second sentence in paragraph two. The motion carried.
It was moved by Rod Olson, seconded by Justice Kapsner, to adopt the changes to Policy 104 as proposed by the TCAP group. The motion carried.
It was moved by Kurt Schmidt, seconded by Rod Olson, to send the policy to the Supreme Court for consideration. The motion carried.
At the last meeting, the Board had asked the draft Political Activity policy be sent to Jim Ganje for comment. His comments were attached to the meeting materials.
Kurt Schmidt stated he was opposed, in general, to the idea of the policy prohibiting anyone from being involved at a local political level or being involved in a campaign as a campaign committee member for a local candidate. This prohibits some things that are inconsequential in the overall scheme of an employee's position. He feels a person should not be prohibited from serving as a district chairman, secretary, etc.
Jeanne Walstad said if we cannot come up with a plan to look at the different levels of positions individually or in various layers, then we are forced to look at what is best for the judiciary.
Mr. Schmidt suggested striking the second sentence in Section A and also indicated there are Hatch Act implications with Section B. For example, Section B suggests that no one in the judicial branch could run for the state legislature.
Rod Olson added a judicial employee could run for office but if they won, he or she would have to give up their job.
Ms. Walstad commented in the executive branch, each agency is different. In the legislative branch, employees are not allowed to run for anything. It is not how it effects what a person does between 8 and 5, it is about how others perceive it might effect is what counts.
It was the consensus of the Board to have Mike Sandal make grammatical changes to the policy.
It was moved by Kurt Schmidt, seconded by Gladys Schmitt, to drop the second sentence in paragraph A, which states, "Such activity does not include holding office in a political party or campaign committee for a candidate in a partisan election."
Justice Kapsner would be more interested in layers of participation at the political activity level rather than layering our system.
Ms. Walstad said perhaps we should develop a mechanism to look at individual situations.
It was determined that Mr. Schmidt's motion was out of order.
It was moved by Justice Kapsner, seconded by Rod Olson, that the draft policy be tabled to look at possible restrictions. The motion carried.
It was suggested that Mike Sandal gather some samples from other agencies within the state and other jurisdictions. It was also suggested Kurt Schmidt draft proposed language on restrictions or limitations for possible consideration.
Jeanne Walstad said under the legislative branch, an employee can have an opportunity to have their situation reviewed by submitting his or her situation to the Legislative Council. As unique as every person's situation is, perhaps the judiciary could develop a plan whereby a person could request a special review.
Chair Geiger asked the Board to send grammatical changes to Mike Sandal by letter or email.
Request to Hire Above Entry Level
Rod Olson said the East Central Judicial District has a court reporter vacancy in Fargo. The last two times the district advertised for the position, there were no qualified applicants. This time, two applicants were qualified. One applicant has not done steno work for nine years, and the other applicant was an official court reporter for a judge in Minnesota and has been freelancing for the last three years. She is also working towards her realtime certification.
It was moved by Rod Olson, seconded by Kurt Schmidt, to start the new court reporter out at Step 3, rather than Step A, based on her years of experience, with no probationary increase. The motion carried.
Request for Pay Grade Adjustment - Court Reporters
Chair Geiger explained the North Dakota Court Reporter's Association is requesting an emergency pay grade adjustment for court reporters employed with the state.
Concern was expressed that pursuant to Policy 107, a request for a pay grade review should come from an appointing authority, rather than an organization as is the case.
It was moved by Jeanne Walstad, seconded by Gladys Schmitt, to deny the request based on the fact that it is not properly before the Board. The motion carried.
Chair Geiger will correspond with Ms. Colby explaining the Board's decision.
Rod Olson suggested it would be easier to recruit people and compete with other states if the hiring authority had more leeway to hire off the bottom, up to a certain point, on certain positions.
Kurt Schmidt added the same holds true for technology positions. He has a hard time hiring someone at entry level with experience.
The Board directed Mike Sandal to draft a policy for consideration at the next meeting.
Request for Pay Grade Review - Judicial Referee
Judge Hagerty and Donna Fair submitted a request to the Board to review the pay grade of the judicial referee. Mike Sandal said he has reviewed the consultant's application of the point factor system, and there appears to be no error in the assignment of the pay grade. However, when comparing the salaries of referees in North Dakota to neighboring states, there appears to be some disparity. We then need to question whether our pay grade assignment is wrong or if the minimum salary out of adjustment. This type of problem could also be resolved by declaring the classification a "pay line exception" or by exempting the classification from the classification system and perhaps tying it to a percentage of a judge's salary. By using one of these alternatives, we can still maintain the integrity of the classification system.
It was the consensus of the Board to have staff do an in-depth salary survey so the Board can study the issue further. The item will also be placed on the Administrative Council agenda for informational purposes. Chair Geiger will follow up with Judge Hagerty and Ms. Fair to let them know how the Board is proceeding.
Mike Sandal announced the election results of the district judge representative and district employee representative to the Personnel Policy Board for three-year terms beginning January 1, 2007. The district judge representative will be Hon. Gail Hagerty, and Gladys Schmitt will serve her second term as a district employee representative. Justice Kapsner has also been reappointed to the Board by Chief Justice VandeWalle for a three-year term beginning January 1, 2007.
Future Meeting Dates
As in the past, four quarterly meeting dates will be scheduled in 2007.
It was moved by Kurt Schmidt, seconded by Jeanne Walstad, to adjourn the meeting.