Members Present: Hon. M. Richard Geiger, Chair; Hon. Gail Hagerty; Hon. Carol Ronning Kapsner; Rodney Olson; Hon. John. T. Paulson (telephonically); Kurt Schmidt; Gladys Schmitt; and Jeanne Walstad
Others Present: Mike Sandal, Staff
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 March 8, 2007 meeting.
It was moved by Rod Olson, seconded by Kurt Schmidt, to approve the minutes. The motion carried.
Salaries - Judicial Referees
At the March 8, 2007 meeting, the Board considered a proposal to exempt the judicial referee position from the court's classification system and directed the changes be sent out for employee comment. Comments were received and were attached to the meeting materials.
Chair Geiger said the Board must focus on what is a fair and appropriate salary for judicial referees to assure they are fairly compensated for their job duties. He said one of the things the Board determined is the pay classification system does not acknowledge a referee's effort in making judicial decisions.
Judge Paulson said he does not believe the proposal is fair to the referees who are already above the 75% salary level and is in favor of Dion Ulrich's proposal to have a tiered system. He also suggested that if the current proposal is accepted, perhaps the referees should pay dues to the North Dakota Judges Association for lobbying, etc. The bylaws would also have to be amended.
Judge Hagerty indicated she would be in favor of asking the referees to become part of the Judges Association.
Jeanne Walstad stated one of the problems with moving the referees to 75% of a judge's salary is three employees salaries will become frozen when we are trying to do something that improves the position of referees.
Kurt Schmidt inquired if referees were awarded the 75%, would they have the ability to opt out.
Chair Geiger said it is important that we attempt to set aside how this will impact some people versus others. Judicial referees come into the system and make the same decisions as other referees regardless of experience. It is the same with the judges, some have more experience than others, but they are all paid the same. Therefore, he believes having a tiered system would be inconsistent, because it would acknowledge that some referees should be compensated more for their judicial responsibilities than others.
Judge Hagerty was not in favor of having a tiered system and suggested 80% would be a more appropriate figure.
Justice Kapsner said as judicial officers, the referees are making important decisions from day one on the job, just like judges. In recognition of the fact that they have those responsibilities from day one, it would be unacceptable to have a tiered system for judges, therefore a tiered system would not work for referees. Because the referees are performing an essential function of the judiciary, we need to change the nature of the compensation to recognize that essential function.
Jeanne Walstad asked how the appropriation would be handled if the referees were removed from the system. She also asked if the funds to compensate for those salaries came out of employee salaries or judicial salaries. For example, if we attach the referees to the judges and the legislature awards judges a 4% increase and employees a 2% increase, how do you come up with those extra funds to compensate?
Mike Sandal responded the judicial salaries are statutory and currently determined through legislative action. Employee salaries and all other salaries are determined through court action and would be part of the court's appropriation request. He said if the court decides to tie referee salaries to some level of judicial salaries, it would be an internal compensation decision, similar to the law clerks.
Ms. Walstad inquired what kind of red flags would be raised when the legislature reviews the percentages. She said the legislature might question whether we knew about this before we submitted our appropriation request last session.
Mr. Sandal said the legislature does review significant changes in salaries. There is a requirement by the legislative body that the Office of Management and Budget report any fiscal irregularities of which significant changes in salaries are included. The judiciary has been very up front with salary changes in the appropriation process. Although we do have to provide justification, such justification has not been a problem in the past.
Chair Geiger reminded the Board that the following motion was passed at the March meeting:
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 recommended that there be a probationary period of one year, with the probationary salary $200 per month less than the designated amount.
It was moved by Judge Hagerty, seconded by Jeanne Walstad, to amend the percentage amount to recommend the salary of a judicial referee be 80% of a district judge's salary.
Roll call vote was taken:
Rod Olson- yes
Judge Hagerty - yes
Justice Kapsner - no
Gladys Schmitt - yes
Kurt Schmidt - yes
Jeanne Walstad - yes
Judge Paulson - no
The motion carried. The proposal will be forwarded to the Supreme Court for its consideration.
Policy 103, Employee Compensation
To facilitate the change the Board is considering to the judicial referee classification, proposed changes to Policy 103 were sent out to employees for comment. No comments were received.
It was moved by Gladys Schmitt, seconded by Rod Olson, to approve the proposed changes to Policy 103, if the Supreme Court adopts the Board's recommendation to remove the judicial referee position from the classification system.
It was the consensus of the Board to remove the apostrophe from the word "referee's" under paragraph C.2a.
The motion carried.
Policy 115, Employee Discipline
To facilitate the change the Board is considering to the judicial referee classification, proposed changes to Policy 115 were sent out to employees for comment. No comments were received.
Judge Paulson suggested adding an "s" to the word "include" under paragraph C.2.
It was moved by Judge Hagerty, seconded by Gladys Schmitt, to approve the proposed changes to Policy 115, as amended, if the Supreme Court adopts the Board's recommendation to remove the judicial referee position from the classification system.
It was moved by Jeanne Walstad to strike the word "employees" and insert the word "positions" under paragraph C.2. The motion died for a lack of a second.
Chair Geiger referred the Board to section A, Application, which states, "This policy is applicable to all classified employees." He questioned whether it would apply to the referees if they were removed from the classification system.
Mike Sandal responded the word "classified" means employees have been assigned a classification and a pay grade as determined by the court's point factor analysis system. We have employees, such as law clerks, who are paid through the regular payroll system, but they are not classified in that they have not gone through the classification process.
Chair Geiger said perhaps the language under section A should read, "The policy is applicable to classified employees and to referees." He said section D.2 under Policy 115 refers to the disciplinary procedure for referees. In addition, to the procedures outlined under that section, a referee may also 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.
Gladys Schmitt suggested incorporating the language in sections C.2b and D.2 and then changing section A to reflect classified employees and referees.
Judge Paulson said Administrative Rule 13 is silent with regard to the dismissal of referees. However, section 4 states the presiding judge, on behalf of all of the district court judges of the judicial district, shall execute in writing the appointment of all judicial referees, to serve at the pleasure of the district court judges of the judicial district.
It was moved by Judge Paulson, seconded by Gladys Schmitt, to table the matter until applicable changes can be made to the caption, as well as under section A, and any other appropriate section. The motion carried.
It was moved by Judge Paulson, seconded by Judge Hagerty, to bring any proposed changes to Policy 115 back to the Board for further consideration. The motion carried. Chair Geiger asked Mr. Sandal to study Policy 115 further and anything related to it regarding the discipline of referees and bring back any proposed changes to the next meeting. He also asked the Board members to forward any proposed language to Mr. Sandal.
Policy 118, Filling Vacancies
To facilitate the change the Board is considering to the judicial referee classification, proposed changes to Policy 118 were sent out to employees for comment. No comments were received.
It was moved by Justice Kapsner, seconded by Rod Olson, to approve the proposed changes to Policy 118, if the Supreme Court adopts the Board's recommendation to remove the judicial referee position from the classification system. The motion carried.
At the March meeting, the Board directed the draft policy on political activity for court employees be sent our for comment. No comments were received.
It was moved by Gladys Schmitt, seconded by Judge Hagerty, to forward the draft policy to the Supreme Court for consideration. The motion carried.
Background Check Policy
At the last meeting, the Board directed the proposed changes to Policy 118 relating to criminal background checks for external candidates be sent out to employees for comment. No comments were received.
It was moved by Gladys Schmitt, seconded by Jeanne Walstad, to send Policy 118 to the Supreme Court for consideration. The motion carried.
Policy 103, Employee Compensation
Mike Sandal recalled at the last meeting, he presented a rough draft of Policy 103 as it relates to the hiring range for new employees. Mr. Sandal incorporated the suggested comments of the Board and presented the policy to the TCAP group, who also provided comments on the draft. The Board now has before it the accumulation of all of that input for its consideration and modification.
It was moved by Rod Olson, seconded by Kurt Schmidt, to adopt the draft changes to Policy 103.
It was moved by Kurt Schmidt, seconded by Gladys Schmitt, to amend the fourth line in section B.1 to read "the state court administrator for personnel in the state court administrator's office and the district courts...". The motion carried.
Judge Hagerty stated and Rod Olson agreed that it is useless to advertise for a position at entry-level salary when history indicates no one is going to apply.
Judge Paulson suggested adding conditional language in the advertisement stating the position is at entry level, but depending upon experience and qualifications, the applicant could start at a higher salary or something similar to that.
Rod Olson suggested striking the new proposed language under 1a and adding the following phase to the original language under 1a, "unless prior approval is given to advertise up to step 5."
It was moved by Judge Hagerty, seconded by Rod Olson, to remove the proposed language under subsection 1a and re-letter the paragraphs.
In response to a question from Kurt Schmidt as to what information should be included in the report and recommendation, Chair Geiger responded the report would include information supporting why we should be advertising at a higher salary level and requesting permission to go up to step 5.
Kurt Schmidt said he was in favor of the idea behind 1b but suggested the language, as drafted, is unclear and should state more specifically what we are trying to accomplish.
It was moved by Judge Paulson to table the matter and refer it back to staff for redraft. The motion died for a lack of a second.
Chair Geiger said we have two scenarios. The first scenario is when it is predictable we are not going to get any applicants, and before advertising, we need to have the ability to recruit at that higher level. The second scenario is when it is unpredictable if we will get a sufficient number of applicants so the position is advertised at entry level. Then, upon receiving no qualified applicants, we need to go through the process and request authority to advertise above entry level.
After further discussion, it was moved by Rod Olson, seconded by Gladys Schmitt, to table the matter for further study and drafting to provide for a procedure for both scenarios. The motion carried.
Justice Kapsner offered the following language for consideration under section 1a, "If an insufficient number of applications are received or, based upon past experience not reasonably expected...."
Chair Geiger suggested reviewing section C.1 to make sure it takes into account both scenarios.
Jeanne Walstad suggested language be added at the end of section 1c to recognize that the years of service credited shall remain with the employee and be applied to future step increases.
Code of Conduct for Judicial Employees
Mike Sandal said the draft code of conduct that was approved by the Board at the last meeting was forwarded to the justices. The justices then made changes to the code and are sending it back to the Board for consideration. If the Board moves forward with the changes, the court requested it be sent back to them for further consideration before it goes out for public comment.
It was moved by Judge Hagerty, seconded by Gladys Schmitt, to recommend the Supreme Court move forward with the code, as changed. The Board also acknowledged the need for editing changes with regard to grammatical issues.
Chair Geiger referred the Board to section III.G. He said judges have the affirmative duty to report, and the language under that section passes the duty on to judicial employees, which is a significant duty. Having that duty means an employee has an obligation to report if they see another employee committing some type of violation, and, by not reporting, are subject to some form of possible discipline.
Justice Kapsner said under paragraph I.B, it states a judicial employee shall maintain and observe the highest standards of integrity, honesty and truthfulness in the employee's professional and personal dealings. She said an employee's personal dealings, coupled with an obligation to report, give her some pause.
Chair Geiger commented that anyone, including a judge, who is given authority and power, has the potential for abusing that power. So not only does it put a standard on employees, but there is also the potential for abuse.
It was moved by Justice Kapsner, seconded by Judge Hagerty, to ask staff to change the use of the pronoun "their" to "the employee" or strike it where appropriate. The motion carried.
It was moved by Justice Kapsner, seconded by the Gladys Schmitt, to strike the words "and personal" under paragraph I.B. The motion carried with one member voting no.
[Judge Paulson left the meeting to attend court.]
It was moved by Rod Olson, seconded by Gladys Schmitt, to strike the words "within the judicial unit" under III.G. The motion carried.
It was moved by Rod Olson, seconded by Kurt Schmidt, to strike the words "or this code" under paragraph III.G.
Judge Hagerty said she is not in favor of the motion, as it would send a message that no one needs to follow the code.
Rod Olson commented if an employee knows there is a violation, they should have an obligation to report that but it is unrealistic to expect employees to remember everything that is stated in the code.
Gladys Schmitt suggested the language be reworked to be more suggestive rather than so detailed. She said if you are upholding the integrity and the highest standards of the judiciary, then you would, out of your own conscience, report an issue without having a rule stating you must do so.
Judge Hagerty said everyone should have an obligation to report. She said if someone is mistreating another employee, there needs to be some obligation to report.
Jeanne Walstad suggested the supervisor would look at each individual situation and decide what is appropriate to report and the importance of reporting. Employees need to be obligated to make those observations.
With the consent of the second, Mr. Olson withdrew the motion.
It was moved by Justice Kapsner, seconded by Judge Hagerty, to amend the last sentence in III.G. to read, "An employee shall not be subject to retaliation for reporting or failing to report violations if such report or failure to report is made in good faith." The motion carried.
The motion carried to recommend the Supreme Court move forward with the code, as changed, acknowledging the need for editing changes with regard to grammatical issues. The code will be forwarded to the Supreme Court for consideration.
Director of Juvenile Court Series
The next item on the agenda was proposed amendments to the class specifications for the juvenile court series. Mike Sandal stated the amendments correct the title of the immediate supervisor, changing it from the presiding judge to the court administrator for the director classification, and changing it from the presiding judge to the director of juvenile court for the court officer III classification.
It was moved by Judge Hagerty, seconded by Kurt Schmidt, to approve the modifications to the Director of Juvenile Court Services and Juvenile Court Officer III class specifications. The motion carried.
Implementation of Guidelines of Step System
Chief Geiger drew the Board's attention to the next agenda item, the proposed changes to the Implementation Guidelines of Step System.
It was moved by Jeanne Walstad, seconded by Justice Kapsner, to approve the changes to the Implementation Guidelines of Step System.
Ms. Walstad explained the current guidelines were most likely drafted around the time the court implemented the classification system back in the 1990s. She felt the language in the current guidelines could be misleading and suggested either removing the guidelines or amending them to reflect the implementation of the 2004 classification system.
Mike Sandal said he reviewed the minutes of the Supreme and District Court Personnel Boards back to the 1990s and could not find any documentation that the guidelines or the implementation of the step system was ever discussed by the Boards. The exception to that is the Supplement I of the implementation for network and programmer analyst positions that was approved by the supreme court in July 1998. He suggested perhaps the guidelines were prepared by the court administrator upon the initial establishment of the first classification system of the court. Under the new classification system, the years of service in the court no longer correlate with the steps. However, the step date in which an employee is eligible for a step increase, will be maintained. He stressed that the guidelines, as currently defined, are guidelines and not policy, unless the Board decided to elevate it to policy.
Ms. Walstad said it is troublesome to have the guidelines on record because they do not reflect the new system. She said it could be misleading to employees.
Mr. Sandal agreed that there is confusion by some of the employees; however, the guidelines are basically being complied with. It was his intention to modify the guidelines once the new system was fully implemented and we no longer used the probationary step. He said he feared that if we modified it a couple of times in the transitionary process, it might become more confusing and potentially do more harm than good.
Rod Olson questioned the Board's authority because the guidelines are not a policy.
Justice Kapsner suggested the guidelines are sufficiently connected to personnel. The guidelines are in the policy manual and explain our step system. It is also within the purview of the Board to at least recommend to the court that it be removed.
With the consent of the second, Ms. Walstad withdrew the motion to adopt.
It was moved by Judge Hagerty, seconded by Jeanne Walstad, to recommend to the state court administrator that the implementation guidelines be removed from the policy manual along with its supplement. It was also recommended that the State Court Administrator's Office consider a redraft of the guidelines, taking into consideration the language offered by Ms. Walstad. The motion carried.
Electronic Court Recorder & Court Reporter Class Specs
Mike Sandal distributed proposed changes to the class specifications for the Electronic Court Recorder - District Judge and Court Reporter. The proposed changes remove the word "typewritten" and "type" from the specifications.
It was moved by Rod Olson, seconded by Kurt Schmidt, to amend the job classifications of Electronic Court Recorder-District Judge and Court Reporter, as indicated.
Kurt Schmidt questioned whether it was appropriate to remove the word "typing" from duty number 5.
It was moved by Gladys Schmitt, seconded by Justice Kapsner, to substitute the word "preparing" in place of the word "typing" in duty number 5. The motion carried.
The motion carried to amend the job classifications and forward them to the court for consideration.
Letter from Court Reporter Association
Judge Hagerty said she received a letter from Ronda Colby on behalf or the North Dakota Court Reporter's Association requesting an emergency pay grade adjustment for court reporters. She said because they still need to go through the proper procedures, she is not presenting it to the Board as an agenda item but wanted to bring it to the Board's attention with regard to it work on Policy 103.
Conflict of Interest
Mike Sandal said in the near future, the Board might be presented with an appeal on employer action, which gives rise to a potential conflict of interest with the chair of the Board. Because the policies are not clear, Mr. Sandal asked the Board how they wanted to determine the vice-chair.
It was moved by Justice Kapsner to nominate Judge Hagerty to serve as vice-chair.
Judge Hagerty said she was not the appropriate person because she is so new to the Board.
Justice Kapsner withdrew her motion.
It was moved by Judge Hagerty, seconded by Jeanne Walstad, to nominate Justice Kapsner to serve as vice-chair of the Board. The motion carried.
Chair Geiger said anytime the chair is unavailable, the vice-chair would serve.
Mr. Sandal said if an appeal does come before the Board, a special meeting of the Board would be necessary to address the issue. He said policy provides for the disciplinary action to be stayed until such time that the Board can make a final determination.
In response to a question from Rod Olson asking what procedures are followed if Board members have conflicts with an appeal, Judge Hagerty suggested the rule creating the Board be reviewed to address issues such as vice-chair and how to handle conflicts.
Chair Geiger asked Mr. Sandal to draft a proposal and put it on the agenda for the next meeting.
It was moved by Kurt Schmidt, seconded by Gladys Schmitt, to adjourn the
meeting. The motion carried.