Chair Hagerty called the meeting to order at 9:00 a.m. and welcomed the Hon. Lisa Fair McEvers
as a new member to the Board.
Minutes It was moved by Rod Olson, seconded by Kari Landsem, to approve the minutes of
December 10, 2010 meeting. The motion carried.
Policy Redrafts from December Meeting At the December meeting, the Board asked Ms. Klein to redraft select policies for review at the
next meeting. Ms. Klein presented them to the Board for review.
Judge McEvers said with regard to the Definitions page, she noticed that compensatory time only
seems to address compensatory time for non-exempt employees and asked if that was the intent.
Chair Hagerty responded only non-exempt employees are entitled to compensatory time. Justice
Kapsner recalled at the last meeting, the Board decided that exempt employees could be given
compensatory time on a discretionary basis.
In response to a question from Judge McEvers concerning how it is determined whether on-call
should be paid time, Chair Hagerty said there is a policy that addresses that, which was recently
approved by the Supreme Court.
Judge McEvers stated governments are allowed to use compensatory time to allow the maximum
flexibility. She said at the end of a biennium, instead of turning money back, we might want to
consider paying off our liabilities instead of carrying them forward. Chair Hagerty stated that
would be a valid and good discussion for the Board to have and asked that it be added to the
agenda after the Board has completed the policy manual.
Review of Comments to Proposed Policies
Personnel Policy Board (122) Chair Hagerty drew the members’ attention to Policy 122. She said because there is an
Administrative Rule dealing with the procedure for adoption or amendment of administrative
policies relating to personnel, she suggested it may be beneficial to incorporate Policy 122 into
the administrative rule rather than having it part of the policy manual.
It was the consensus of the Board to asked Amy Klein to draft an amendment incorporating
Policy 122 into Administrative Rule 33 for consideration at the next meeting.
Chair Hagerty noted that in accordance with Administrative Rule 33, all future items sent to the
Supreme Court for consideration should come from the chair.
Annual Leave (127) Comment - Suggested referring to annual leave in months rather than years.
It was moved by Kari Landsem, seconded by Judge McEvers, to change the service
calculation to reflect the months of service rather than years.
Rod Olson commented he is not opposed to the idea but does not see the advantage.
Kari Landsem suggested it is easier for the employee to figure out when they would have a
change in leave if it is listed in months.
The motion carried.
Comment - Under the proposed policy, an employee may take up to 24 hours of leave in advance
of accrual. Under the current policy, that amount is unlimited. Why the limitation and why 24
Ms. Klein stated one of the disadvantages of being a new employee is you have to start
employment with a zero leave balance. She suggested rather than allowing a negative leave
balance, perhaps leave could be accrued differently for first year employees. For example, new
employees could accrue six months of leave up front, and then after their probationary period, the
employee could start accruing on a regular basis. This would allow the employee to use the leave
for those situations that arise such as dealing with a sick child or helping an aging parent. She
said there are some risks associated with the proposal. If an employee quits their job within the
first six months, we will have to pay it out to them regardless. However, she believes the risk is
low because we have such low turnover.
Judge McEvers stated essentially, the new employee would have the same number of hours
available during a year, but they would just have some of the leave up front. There is a need for
having that time when you are new for things such as moving or wrapping up an old job. Rod
Olson added it would also be beneficial to the law clerks because they are employed for such a
short period of time. Ms. Klein stated another advantage is all new employees would be treated
the same. We wouldn’t have one unit denying a new person leave and another granting.
In response to a question asking if leave would need to be awarded if an employee left within the
first year of employment, Judge McEvers responded yes, once leave is awarded to an employee,
it is theirs.
It was moved by Rod Olson, seconded by Kari Landsem, that Amy Klein prepare language
which would allow for new employees to accrue six months of annual leave and sick leave
immediately and then after the six months, the employee would accrue leave on a monthly
basis. The motion carried and Ms. Klein will present a draft for review at the next
Sick Leave (128) Comment - Suggested referring to sick leave in months rather than years.
It was moved by Rod Olson, seconded by Judge McEvers, to change the service calculation
to reflect the months of service rather than years. The motion carried.
Chair Hagerty stated a redraft of the policy will be brought back at the next meeting, which
allows for new employees to accrue six months worth of sick leave immediately and then after
the six months, the employee would accrue leave on a regular monthly basis.
Comment - Questioned if it was allowable for a person to use donated family sick leave while on
FMLA. Suggested a cross reference to Policy 129, Shared Leave, be listed in section D.3.b.
Amy Klein stated an employee can receive donated sick leave for their own illness or donated
annual leave for a family member’s illness. In order to receive donated leave, the employee must
exhaust all of their own leave first.
It was the consensus of the Board to modify section D.3.b., line 1, to read as follows:“Family
sick leave differs from the Family and Medical”.
It was the consensus of the Board to insert the words “or annual leave” after the words “Family
Sick Leave” in section D.3.b., line 4.
In response to a question from Judge McEvers asking if FMLA requires an employee to use all of
their annual leave before taking unpaid leave, Ms. Klein responded the FMLA leaves it up to the
employer. During an FMLA absence, the Court System requires employees to use all paid leave
that they are eligible to use first.
Leave Sharing (129) No comments were reviewed regarding this policy, however, Chair Hagerty stated there was an
error in subsection A. The last line, it refers to “State Court employees”. To be consistent, she
suggested it be rephrased to read “Court System employees”. It was the consensus of the Board
to make the change.
Organ or Bone Marrow Donation (132) Comment - Why should this be singled out, and why does the chief justice need to approve?
The comments were reviewed and no changes were made to the policy.
Employee Organizational Leave (135) Comment - The policy specifies a state conference or convention and maybe it should include a
national organization or convention.
Ms. Klein said the executive branch has a similar policy to allow leave for those employees who
are delegates or officials of an employee organization to attend a conference. She questioned the
need for the policy.
Rod Olson recalled the last time the Board discussed the policy, the leave pertained to those
employee who were part of the NDPEA or the North Dakota public employee association He
also noted approval from the employee’s appointing authority is needed.
No changes were made to the policy.
Leave Without Pay (136) Comment - Is the limitation of the one-year duration for approved leave without pay cumulative,
lifetime or by occurrence? On educational leave, I question why we would allow someone to
take a two-year leave of absence for educational purposes. If it is necessary for their job,
perhaps they should not have been hired. Additionally, the offices are staffed without a cushion.
It would be debilitating to allow this type of leave.
Rod Olson stated while it would be difficult to grant the educational leave, he definitely could
see other situations arising. For example, if someone had the opportunity to go to another
country to help work on their court system, it would be a valuable experience for our employee
and he would not want to deny them the opportunity.
Ms. Klein suggested leaving the options open because it is at the discretion of the supervisor and
the State Court Administrator or Chief Justice. Justice Kapsner added as long as it is
discretionary, she cannot see any harm in keeping the policy.
No changes were made to the policy.
Family and Medical Leave Act (137) Comment - The second paragraph of section A is confusing. It reads the FMLA is not to be
confused with Family Sick Leave.
It was the consensus of the Board to strike the words “is not to be confused with” in the second
paragraph of section A, line 1, and insert the words “differs from”.
It was also the consensus of the Board, to insert the words “or annual leave” after the words
“Family Sick Leave” in the second paragraph of section A, line 4.
Comment - The policy leaves out the current option (which is under Authorized Family Absences
of the current Policy 102) for a person to exhaust all accumulated leave, if the absence is due to
illness or injury of the employee, and the four-month maximum does not apply. This would
penalize loyal employees who do not abuse sick leave.
Rod Olson stated because FMLA and paid leave are ran at the same time, most likely the
employee will run out of paid leave and FMLA at the same time. Running them concurrently
does not benefit the employee.
Ms Kein stated the federal law requires the FMLA process to start as soon the employer has
Ross Munns noted some agencies in North Dakota do not run the time concurrently. He also
noted in the first sentence of the FMLA policy, it states FMLA allows employees to balance their
work and family life by taking reasonable unpaid leave. He said when they are run concurrently,
is it really not unpaid leave because leave is part of our compensation.
Ms. Klein stated that OMB in the executive branch allows employees to use all of their paid
leave before starting FMLA. Questioning if the FMLA right of an employee is an option to
delay, Ms. Klein suggested having an attorney review.
Chair Hagerty requested Judge McEvers review the law and report back to the Board at the next
Justice Kapsner noted that if the leave is to run concurrently, it needs to be clearly stated on the
first page of the policy. Judge McEvers agreed and noted the importance of the decision
especially to an employee who has a long-term illness. It will determine how long they can stay
on health insurance as a paid benefit as opposed to them having to buy it under COBRA.
Comment - The section regarding serious medical condition is confusing and unclear as to when
one must activate FMLA. We shouldn’t have units dong it differently. Need clear direction
regarding when to activate and how.
Chair Hagerty stated once we receive a report from Judge McEvers of what is required, we can
responded to the comment.
Comment - The policy refers to family sick leave as Policy 102 but actually the new number
would be 128.
It was the consensus of the Board to correct the typographical error.
Chair Hagerty said further consideration will be given to the policy at the next meeting and
welcomes advice or guidance from all Board members.
Corrective Action (141) Comment - I do not feel allowing a supervisor the sole ability to refer an employee to EAP is
appropriate. I think any referral of this nature may be initiated by the supervisor but must
include consultation with the Trial Court Administrator.
Amy Klein stated all referrals are confidential and it does not have to be a corrective action issue,
they can refer at any time. The supervisor cannot make an employee utilize EAP, and the
supervisor would not even know if the employee took action. However, if the employee doesn’t
fix the problem, the supervisor can reprimand them for not improving their behavior.
Comment - Written reprimands under the current Policy 115 may be issued by the supervisor
with the approval of the appointing authority. Written reprimands under new policy section
B.1.b., must be approved by the appointing authority and notice given to the HR Director. The
time frame for such notice should be clearer.
Rod Olson said if one of my supervisors was going to give someone a written reprimand, he
would want to be informed. He said he then notifies HR to seek advice on how to handle the
situation, not to seek approval for the suspension.
It was moved by Justice Kapsner, seconded by Rod Olson, to insert the words “as soon as
practicable” at the end of the first sentence in section B.1.b.(1). The motion carried.
Comment - Under section E, Suspension, the parameters for time frames of notice are not
Judge McEvers suggested that perhaps this is a situation where the HR Director should have
prior notice instead of notice at sometime.
It was moved by Judge McEvers, seconded by Kari Landsem, under section E, to insert the
word “prior” before the word “notice” in line 2, and insert the words “if practicable” after
the words “Human Resource Director” in line 3. The motion carried.
Comment - Under section C.2.a., it states within ten days of receiving a written recommendation
for corrective action, the presiding judge shall notify the referee and all district judges of the
recommendation and set a time and place for review. A panel of all the judges in the district
seems over the top. Perhaps a smaller panel comprised of a specific number of judges in
addition to the presiding judge could serve the purpose.
Chair Hagerty said based on experience, she feels it is necessary to have all the district judges
involved to avoid a situation where it seemed like some of the judges were supportive or critical
of the referees and others were not. Justice Kapsner added any changes to the process would also
require changes to the administrative rules.
No action was taken.
Comment - Under section D, EAP Referrals, although the policy states a supervisor may refer an
employee, I believe this decision requires a certain amount of experience and discretion. I would
recommend that the appointing authority be part of this process.
Chair Hagerty stated involving the appointing authority might discourage people from utilizing
No action was taken.
Comment - Under section B.1.b., I am concerned that we no longer provide an employee with the
opportunity to correct inappropriate conduct to avoid written reprimand. Under the proposed
policy, it appears the supervisor is not required to exhaust the preliminary notice step before
issuing a written reprimand.If that is an accurate interpretation, then the only recourse that an
employee has with regard to a written reprimand is to reply within five working days.
Ms. Klein stated before an employee gets a written reprimand, the supervisor has gone through
every possible step. The supervisor should have already investigated the issue, coached the
employee and might have a preliminary notice informing the employee he or she is going to get a
written reprimand if the situation happens again. However, if it is serious, a situation could lead
directly to a written reprimand. The employee, besides replying, can go through the appeal
process, which could eventually end up at the Personnel Policy Board. Mr. Olson agreed that
supervisors look at a written reprimand as the last step and will do whatever corrective action is
possible before it gets to that point.
Comment - Under section E, the supervisor may suspend an employee. I believe the discretion is
too broad and could result in disparate treatment of employees. There is no provision that sets
out when a suspension is an appropriate action or the appropriate length of the suspension. An
appointing authority essentially has unlimited and unchecked discretion in when to suspend and
how long. Further, the description of the change to this policy explains that the policy now
allows a hearing process only for dismissals. The description does not explain that, under the
proposed policy, an employee also has the right to appeal a dismissal and no longer has the
right to a hearing or appeal of a suspension or demotion. I am of the opinion that any corrective
action that results in a negative monetary impact including a demotion or suspension should be
eligible for review under an appeal process.
Ms. Klein stated employees still do have appeal rights. They are listed in the Conflict Resolution
It was the consensus of the Board to include reference to the Conflict Resolution policy under the
written reprimand and suspensions sections so that it is clear to employees that they do have
some recourse. Ms. Klein will prepare a draft for review at the next meeting.
Comment - Should dismissals be in writing?
Ms. Klein commented that dismissals are always in writing and suggested noting it in the policy.
It was the consensus of the Board to insert the words “in writing and” after the words “must be”
in section B.1.c.(1).
It was the consensus of the Board to delete section D.2. from the policy and reformat.
Conflict Resolution (142) Comment - There is no provision for an employee to file a grievance against the supervisor.
Presumably, they should be able to go to Step Two, but what if they wish to grieve against the
State Court Administrator or Supreme Court department head? Can any grievance be sent to
the Supreme Court department head no matter where it originated? Employees do not now nor
will they have much confidence in the grievance procedure if they have a grievance against their
supervisor, the State Court Administrator, a Supreme Court department head or the HR
Director. I think Step Two should be eliminated, and the Personnel Policy Board deal with
everything after Step One.
Justice Kapsner stated if the grievance is against the State Court Administrator or Supreme Court
department head, Step Two should be eliminated; however, it should not be eliminated in any
It was moved by Kari Landsem, seconded by Ross Munns, to insert a new subsection (3)
under section E.3.a., to read as follows:“If the grievance is against the State Court
Administrator or Supreme Court department head, Step Two will be bypassed. The
Assisting Self-Represented Parties (144) Amy Klein said because the draft policy mirrors our current policy, some wording changes may
be necessary for consistency purposes. It was the consensus of the Board to have Ms. Klein
prepare a draft in writing for review at the next meeting.
Compensation and Classification Plan for Classified Employees (150) Comment - Section C.4. refers to the job data questionnaire without providing information on
where employees can find the form. Suggest a link to the form as provided in Policy 137.
Amy Klein said all forms will be on the HR website and can be linked in the documents.
It was the consensus of the Board to have Ms. Klein prepare an introductory statement referring
to the forms and where they can be found. The draft will be presented at the next meeting.
Comment - Under section A.2.b., supervisor authority should be referred to as supervisory
It was the consensus of the Board that section A.2.b. be modified to read “Supervisory
Comment - Quite frankly, there is not enough separation between the HR Director and the State
Court Administrator for an appeal of a reclassification request to go to the State Court
Administrator. The appeal should go directly to the Personnel Policy Board and the State Court
Administrator and HR Director can be heard on the record.
Rod Olson said if the State Court Administrator denies the request, the employee still has the
opportunity to appeal it to the Personnel Policy Board so they are not out anything.
No changes were made to the policy.
[Sally Holewa joined the meeting]
Salary Administration for Classified Employees (151) Comment - Section B.2., Rehired Employees, is unclear. Does section a. mean that a person
could be rehired at step 8 or 10? Section b. says that these employees may be placed on an
introductory period. This should be more clear. Perhaps a parameter regarding the length of
time the employee can be gone before they may be rehired without an introductory period.
Rod Olson said typically when an employee leaves the Court System and comes back, they start
over at step one. Justice Kapsner stated the proposed policy states all classified employees new
to the Court System must start at step one. Chair Hagerty added that the policy also says a
rehired employee may be given credit but does not require that they be given credit. She said the
change in policy does not appear to conflict with other language in the policy manual.
Judge McEvers said she is in favor of the language as she believes an employer should have the
No action was taken on the comment.
Comment - Section E.1. reads a career ladder advancement is advancement to a higher pay
grade. This is vague. Perhaps clarify by saying that it is advancement to a higher position
within a series.
It was the consensus of the Board to insert the words “higher position within a series and a” after
the words “advancement to” in section E.1., line 1.
Comment - Section E.3. refers to a classification change form without reference of where to find
Judge McEvers said the previous reference to adding the sentence regarding the forms at the
beginning will address this issue.
Criminal Background Checks (180) Comment - I’m not sure what this policy is trying say - “external candidates include temporary
and regular positions.” I know you sent an email that the word external should have been
excluded. Is the following the intent - With a conditional offer of employment, external
candidates for temporary and regular positions, as well as positions employed through a staffing
agency, will be subject to a criminal background check. For the purposes of a criminal
background check, external candidates are candidates who are not already employed by the
In response to a question from Judge McEvers asking if it the intent is to perform background
checks on people who are already working for the Court System, Ms. Klein responded yes, it is.
It was moved by Justice Kapsner, seconded by Ross Munns, to modify section A to read as
follows:“With a conditional offer of employment, candidates for temporary and regular
positions, as well as positions employed through a staffing agency, will be subject to a
criminal background check.”The motion carried.
Filing Classified Position Vacancies (181) Comment - Suggested adding “Certificate of Eligibles” to the Definitions section of Policy
Amy Klein said the language in the current policy talks about two lists, thus sometimes it is
unclear to which list we are referring. Once the applications are ranked, a list of those applicants
who meet the minimum qualifications is forwarded to the appointing authority. The appointing
authority then decides the cutoff scores. The names on the list through the cutoff score is
essentially called the Certificate of Eligibles. One of the reasons the Certificate of Eligibles is
important is because it deals with the veteran’s piece of the policy. If the appointing authority
decides to interview someone who scored lower than a veteran, then they need to have justifiable
Chair Hagerty suggested perhaps the cutoff score should be determined before the appointing
authority receives the list. Ms. Holewa stated an alternative would be to give the range of scores,
without the names, to the appointing authority. Ms. Klein said after we move into Neogov and
everything is automated, it will be easier to predetermine the cutoff score because we are going to
ask detailed questions on the application form. On the current application form, we seldom get
It was moved by Rod Olson, seconded by Kari Landsem, to define Certificate of Eligibles
and to include the definition in the Definitions section of the policy as follows: “Certificate
of Eligibles is a list of candidates for a position who are deemed to be qualified and who are
ranked above a cutoff level determined by the appointing authority or designee.” The
It was moved by Justice Kapsner, seconded by Judge McEvers, to modify section C.3. to
read as follows:“The Human Resource Director will forward the Certificate of Eligibles
listed from highest score down to the appointing authority or designee. If a disabled
veteran is on the Certificate of Eligibles, the name will be moved to the top of the
Certificate of Eligibles regardless of score.” The motion carried.
Chair Hagerty said if she has other editing changes, she will send them out to the members
The next meeting is scheduled for February 18, 2011, from 10 a.m. to 2 p.m.