Members Present: Hon. M. Richard Geiger Chair; Hon. Gail Hagerty Hon. Carol Ronning
Kapsner Rodney Olson Kurt Schmidt Gladys Schmitt Jeanne Walstad
Members Absent: Hon. John T. Paulson
Others Present: Mike Sandal, Staff Sally Holewa, Ex Officio Member Appellant Appellant's Husband Tom Slorby Renee Barnaby, Scribe
Chair Geiger called the meeting to order at 10:00 a.m. and welcomed Judge Hagerty as a new
member on the Board. The first item on the agenda was the approval of the Minutes of the
December 2006 meeting. An editorial correction was noted on page 2. It also was noted that Sally
Holewa was present at the December meeting.
It was moved by Gladys Schmitt, seconded by Rod Olson, to approve the minutes, as corrected.
The motion carried.
The second item on the agenda was a salary administration grievance appealing a decision of Sally
Holewa, State Court Administrator. Policy 108, the grievance policy for the state judicial system,
sets out the following: "Conduct subject to grievance is any action by an official or employee of the
judiciary, or any individual with whom the employee has contact based on their employment in the
North Dakota judicial system adversely affecting the complaining employee, which violates or
inequitably applies a policy in this personnel manual, or a state or federal law."
It was moved by Jeanne Walstad to grant the appeal. The motion died for the lack of a second.
It was moved by Kurt Schmidt, seconded by Justice Kapsner, to deny the appeal.
Chair Geiger said the Board would proceed with discussion based on the record that has been
submitted. Mr. Slorby, a representative of the appellant, would be allowed to make a statement
before the vote.
Chair Geiger asked Mike Sandal to give an analysis of the issue. Mr. Sandal outlined for the Board
the processes used for assigning employee classifications and pay grades when the Court's new
classification system was adopted in October of 2004. Mr. Sandal discussed with the Board the four
transition steps added to the pay structure and the Court's intent to eliminate the steps as the budget
Mr. Sandal also discussed the impact of salary compression resulting from the implementation of
the new classification system, and how the resultant salary compression affected the appellant.
Mr. Sandal stated that all existing policies were applied consistently during the implementation of
the new classification system, and that in review he could find no error in the application of the
policies when reviewing the employee's grievance.
Chair Geiger referred the Board to Ms. Holewa's January 22, 2007 letter indicating that the appellant
and supervisor, "have failed to offer any proof that the plan was not implemented consistently or
correctly as it applies to the employee." He said it is important to remember the plan was the one
implemented by the Supreme Court and so the issue is not whether you like the plan, the issue is
whether there was an improper application of the plan as it applies to employment and changes in
salary and pay grade.
After further discussion by the Board and after hearing statements from Mr. Slorby and the appellant,
the Board proceeded with a roll call vote. Chair Geiger said the motion is to deny the appeal thereby
confirming the decision of the state court administrator in her letter of January 22, 2007. A "yes"
vote would be to deny the appeal.
Voting No Jeanne Walstad
Voting Yes Kurt Schmidt Rod Olson Justice Kapsner Judge Hagerty Gladys Schmitt - added the comment she does empathize completely as she is also affected.
The appeal was denied.
Chair Geiger emphasized that the Board's decision had absolutely no reflection on the appellant as
an employee, and the skills, experience, and dedicated service she brings to the court were greatly
Mr. Slorby suggested a solution would be to advise the Court of these inequities so there is a record
that it has been referred to the Court.
Chair Geiger said the Board would take it under consideration.
A new version of the draft policy was introduced as Alternative 1. Alternative 1 is less restrictive
than the first draft policy but also proposes some significant restrictions such as: a person who
chooses to be active in a political sense cannot do so during working hours; cannot use his or her
position or title in connection with such political activity; and, shall notify his or her supervisor upon
engaging in any type of elective office.
Sally Holewa said unless it directly infringes on a person's work as a judicial branch employee or
reflects poorly on the courts, the employee should be free to exercise his or her political rights.
It was moved by Rod Olson, seconded by Kurt Schmidt, to substitute Alternative 1 as the draft
policy for consideration rather than the original draft policy. The motion carried.
It was the consensus of the Board to change the words "off-duty" to "non-working" in the second
to the last line in paragraph B for consistency purposes.
It was moved by Justice Kapsner, seconded by Gladys Schmitt, to add additional language to
the last sentence in paragraph B as follows: "An employee who chooses to participate in
political activity during non-working hours may not use the employee's position or title within
the judicial system in connection with such political activity and the activity must not be
incompatible with the employee's duties. The motion carried.
After further discussion, it was moved by Kurt Schmidt, seconded by Rod Olson, to approve the
Alternative 1 draft as modified and send it out to employees for comment. The motion carried.
Salaries for Judicial Referees
At the December meeting, the topic of judicial referee salaries was discussed. At that meeting,
discussion swayed towards exempting referees from the class system because the point factor
analysis system considers managerial-type responsibilities and not the adjudicative responsibilities
that are associated with referees. The Board then requested Mike Sandal to perform a salary survey
so the Board could do some comparisons in relation to the average salary for judicial referees in the
state as well as some comparison to judicial salaries and magistrate salaries in other states. Mr.
Sandal's findings were included in the meeting materials.
Rod Olson said he met with the referees in the East Central judicial district, and suggested they write
a letter to the Board expressing their position.
Judge Hagerty stated the current pay structure does not fit within the classification. She said as we
look to the future, it is a good idea to be as competitive as possible. She further suggested that it is
important to have a one-year probationary period.
It was moved by Justice Kapsner, seconded by Judge Hagerty, to recommend to the court that
the judicial referees be exempt from the pay classification system and be assigned a pay that
is 75% of the district judges salary, but not less than the amount earned at the time the change
is implemented, and that all referees be assigned the same salary. It was also recommends that
there be a probationary period of one year, with the probationary salary $200 per month less
than the designated amount.
It was suggested the referees go off probation after one year with acceptable performance as
determined by the presiding judge.
Two possible concerns were noted: (1) the impact on the judges' request for raises, and (2) although
the referees would retain their current salary, they would not have the step increases that might have
been anticipated as they move toward retirement.
After brief discussion, the motion carried and will be sent out to court employees for comment.
Mike Sandal stated changes would need to be made to Policy 118(c)(5) and Policy 115.
Justice Kapsner suggested sending out a cover letter to employees identifying the recommended
changes to the policies and the rationale behind the changes.
It was the consensus of the Board to give Mike Sandal the authority to identify the policies that
needed to be edited to reflect the classification change and send them out for comment.
Background Check Policy
Mike Sandal reviewed that the Administrative Council had asked the Board to consider a policy
providing for criminal background checks for new hires. Mr. Sandal added a section to Policy 118
specifically providing for the background checks. The TCAP group is in favor of the draft changes
and is currently reviewing a disclosure form. The disclosure form would be used to notify candidates
that they would be subject to criminal background checks. The information would be forwarded to
our security consultant who would then conduct the checks with BCI. The disclosure form would
be part of the application process.
It was moved by Rod Olson, seconded by Gladys Schmitt, to adopt the proposed changes and
send them out for employee comment.
In response to a question from Kurt Schmidt asking how long a background check takes, Mr. Sandal
stated if it is from BCI, it is almost instantaneous. If a federal check with fingerprinting is needed,
it could take up to two weeks.
Sally Holewa said if passed, the State Court Administrator's Office would develop guidelines
indicating which positions would be subject to the FBI check, what kind of checks would be
Mr. Sandal said if the FBI check is performed, it could delay an employee's start date.
After further discussion, the motion was adopted and will be sent out for employee comment.
Clerk of District Court I & II Class Specifications
The proposed change to the clerk of district court I and II class specifications suggests changing the
supervisor from the presiding judge to the court administrator.
It was moved by Judge Hagerty, seconded by Judge Kapsner, to adopt the proposed change
and forward the change to the Supreme Court for consideration. The motion carried.
Employee Compensation Legislation
Mike Sandal reviewed the compensation bill (SB 2189), which has been signed by the Governor,
provides a 4% salary increase for state employees, with a minimum of a $75 increase. He has
modified the court's salary ranges to reflect a 4% increase for all pay grades. Mr. Sandal said Susan
Sisk confirmed that approximately 14 people are on steps that make less than $1,875 a month,
therefore the $75 minimum would equate to more than 4%. In those cases, people would receive the
minimum $75, which would put them between steps, not on a step, so in essence, they are getting
part of their step increase early. At their next step increase, they would go on to the full step.
It was moved by Kurt Schmidt, seconded by Jeanne Walstad, to adopt the proposed pay
ranges and forward it to the Supreme Court for consideration.
Mr. Sandal added a bill has been signed in North Dakota to change the minimum wage. That bill
is tied to the passage of the federal minimum wage. If that bill were to pass, 60 days after signing,
the minimum wage would go to $5.85 per hour. A year later, the minimum wage would go to $6.55
per hour. If the minimum wage is changed, it would have no impact on the court's salary ranges.
The motion carried.
In response to a question as to whether the Personnel Policy Board meetings were open meetings,
Chair Geiger responded the meeting are closed and not subject to the open meeting law.
Mike Sandal distributed proposed language to Policy 103 changing the approval process for
increasing entry-level salaries of newly hired employees in those situations where recruitment is
difficult. He asked the Board for their feedback and direction. The draft had not yet been distributed
to the TCAP group and was not ready for formal discussion.
Mr. Sandal suggested that there are three questions that need to be discussed: 1) Does the Board
want to relinquish their approval authority and give it to the state court administrator or other
comparable hiring authority? 2) Should the chief justice's approval continue to be required? 3)
Should the limit to an increase in the hiring rate be limited to step 3, or should a higher step be
Kurt Schmidt responded, "yes, yes and 5." The Board was in general agreement with Mr. Schmidt.
Justice Kapsner suggested the policy read, "chief justice or state court administrator."
Sally Holewa questioned the language under paragraph C(1) where it states, "granted by the state
court administrator" since she does not have authority over many departments or divisions.
Chair Geiger questioned paragraph C(a) wherein it states a position shall be advertised and recruited
at the entry-level salary. He questioned if that would only solve part of the problem.
Rod Olson was in favor of changing the language in C(a) because if you advertise at entry-level
salary, an applicant may not even apply. He suggested pleading your case to the court administrator
or chief justice before advertising.
Judge Hagerty suggested adding an initial step before advertising wherein you can request approval
to advertise above entry level especially when you have had problems in the past recruiting for that
type of position.
Rod Olson said an alternative would be to add the request to hire above entry level to the Request
to Fill Vacancy form.
Chair Geiger said the proposed policy will be placed on the agenda for the next meeting.
It was moved by Kurt Schmidt to adjourn the meeting.