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1991-20531-Minutes for Meeting June 12,1991 Recorded 7/16/199191-21531 :4-,.0r,LMV107 0290 MINUTES OF �( ( 09 i S/ JANICE SHANNON GRIEVANCE HEARING RELATING TO DI S$AL'?n t.t 0 DESCHUTES COUNTY BOARD OF COMMISSIONERS JUNE 12, 1991 t Chairman Maudlin called the meeting to order at 8 a.m. Board members in attendance were Dick Maudlin, Tom Throop, and Nancy Pope Schlangen. Also present were: Rick Isham, County Counsel; Mike Maier, County Administrator; Oscar Bratton, County Assessor; Joan Rotsolk, Deputy Assessor; John Wurst, Chief Property Appraiser; Janice Shannon, Grievant; John Witty, Attorney for Mr. Bratton; Andrea Blum, Recording Secretary; Bill Hopp, Attorney for Ms. Shannon; and Barney Lerten, Bulletin Reporter. Chairman Maudlin said the grievance was filed pursuant to Deschutes County Personnel Rule 10.23, and this meeting could be adjourned to Executive Session pursuant to ORS 192.660(1)(b). The meeting could be public if the employee desired an open hearing. Mr. Hopp was asked whether his client wanted an open hearing. Mr. Hopp said Ms. Shannon desired an open meeting. Chairman Maudlin convened the Board in regular session, and announced the order of testimony. He said that cross examination would not be allowed but questions could be asked through the Chairman after being recognized. Disputed facts had to be proven by competent evidence. He asked if there were any challenges to the Board of Commissioners based on the grounds of bias, prejudice, or conflict of interest. Mr. Hopp voiced a concern over an article in the Bulletin on May 30, 1991, where the Chairman was quoted as saying, "I think we're absolutely right," when responding to questions dealing with Ms. Shannon's termination. His client felt this comment might indicate the Chairman had already made up his mind concerning her case. The purpose of this tribunal was to be an impartial body to hear the facts and to have an open mind with no predisposition. There also were allegations that the Board had had ex parte contacts after the grievance was filed, and he asked each of the Commissioners whether there had been any such contacts. Rick Isham asked Mr. Hopp to clarify which particular issue(s) these contacts would be concerning, since the Board would have had many contacts with Mr. Bratton in his capacity as a County Department Head. Mr. Hopp said he was concerned about contacts with the Assessor's office with regards to Ms. Shannon's termination. He clarified that by ex parte contacts he meant contacts outside the Board meeting situation. Commissioner Schlangen said the issue had been discussed in Department Head meetings with Mr. Bratton. She had not had any PAGE 1 MINUTES: 6/12/91 ©107 0291 other contacts. Commissioner Throop said he had not had any either. Chairman Maudlin said that since the grievance had been filed, everything concerning the grievance had been handled through John Witty. Concerning his comment in the BULLETIN, he said he thought one word had been left out. He said he thought it had been handled right, because the issue had been turned over completely to the County's attorney. Mr. Hopp said he understood that most of the statement of facts were to be presented in writing, in an attempt to avoid the courtroom scenario. Mr Witty said he was not aware of any factual material in his case that would be disputed by Mr. Hopp. Mr. Hopp gave his opening comments. He said Mr. Shannon's employment with the County had numerous irregularities: (1) concern regarding ex parte contacts, ( 2 ) failure to set the hearing and receive a reply within the seven days required by Deschutes County Personnel Rules 10.23, (3) failure to have her previously filed grievance of February 5 responded to in a timely fashion as required by Rule 10.2, (4) it appeared she was being disciplined for exercising her rights under the grievance procedure in violation of Rule 10.6, and (5) it appeared the Assessor's office had advertized for her job before this hearing. Ms. Shannon's discharge, according to Mr. Bratton's letters dated May 10 and May 15, set forth the grounds being discussed today. The only two items set forth as grounds for termination were: (1) that Ms. Shannon exhausted her sick leave and vacation leave which she had earned and was entitled to under the terms of her employment; and (2) that the County Board of Commissioners denied her sick leave without pay. She was terminated before she could respond to the denial of her sick leave without pay as to whether she would go ahead and "absent" herself from the work place or forego the surgery and continue working. The main issues in the Bratton letters were: (1) calling in late when she was sick which happened twice (April 2 and May 7). He wondered how many other County employees were disciplined or terminated because they didn't call in by 8:05 a.m. when they were ill. They had other appraisers who would testify that they had called in late or had not called in at all and were not disciplined. He felt the standard for progressive discipline was that for the first incident, the employee would be informed of the impropriety. The next time, there might be a written memorandum, and so forth, escalating to the ultimate of termination. On April 2, Ms. Shannon called in at 8:55 a.m. or 50 minutes after the 8:05 a.m. deadline. She received a verbal reprimand from Doug Grant. Later the same day, she received a written reprimand for the same incident. On April 8, a memo was sent by Mr. Bratton to the entire staff concerning the call-in policy which Mr. Hopp felt indicated that there was a problem with other members of the staff calling in late. On April 2, Ms. Shannon was ill with irritable bowel syndrome and delayed calling PAGE 2 MINUTES: 6/12/91 4107 0292 in hoping that she would be able to report to work and not miss the whole day. On April 4, Doug Grant, Joan Rotsolk and Ms. Shannon were all called in the Mr. Bratton's office and a meeting was held which subjected Ms. Shannon to a humiliating discussion of her bowel problem. If there was a question about her illness, a letter from her doctor could have been obtained. On May 7, she called in at 9:43 a.m. because her phone was out of order. She had just recently moved to the Tumalo area and did not know the neighbors. Chief Deputy District Attorney Joshua Marquis could verify that her phone was out of order. The May 15th letter reemphasized the absences from work and the late call -ins, and used them as a basis for termination. It was Mr. Hopp's position that this discharge was inappropriately based upon her utilization of earned sick leave and vacation leave and for calling in late on two occasions. John Witty reviewed the circumstances surrounding Ms. Shannon's employment and discharge. She was hired on September 1, 1990, and was discharged May 15, 1991, or about 8-1/2 months later. She was a probationary employee during that period of time. He read from Mr. Bratton's letter of May 15, 1991, terminating Ms. Shannon, "I have concluded that your employment as a probationary employee should be terminated as of this date because of absenteeism and inability to follow rules and directive when reporting absence from work." The letter also stated that Ms. Shannon's attendance had been unacceptable, that she had missed a substantial amount of time in each of the months she had worked for the County, and her performance had not convinced him that she should be retained as an employee. He gave the Board a copy of the grievance and a summary of Ms. Shannon's attendance records which included Ms. Shannon's signature and Mr. Bratton's signature. Ms. Shannon missed a substantial amount of time in all of the months she worked for the County. The total workdays in this 8-1/2 period were 172. The total whole or part days absent were 22 for sickness (or 12.8%) and 8 days for vacation (4.7%). Out of 1,376 hours, the total hours absent due to sickness were 132 (9.6% of available work hours) and vacation was 43.5 (3.2 of available work hours). Rick Isham asked if she used vacation time because her sick leave had been used up or if the vacation time was used for actual prearranged vacations. Mr. Witty said that his figures were grouped as reported on the payroll records which Ms. Shannon and Mr. Bratton had signed. Mr. Witty went on to say that employees accrue 8 hours (4.6%) of sick leave and vacation time each month, so Ms. Shannon's utilization of 9.6% of her sick leave on average each month would indicate that she exceeded the allocated amount of sick leave by 5%. If all employees exceeded their sick leave at this rate, for every 20 employees, an extra employee would have to be hired to cover the work not being done. He felt this was a level of absenteeism far in excess of most County employees and was not an acceptable level. The fact that Ms. Shannon utilized vacation days during this period of time especially after it should have been apparent that she was having difficulty coming to work, PAGE 3 MINUTES: 6/12/91 0107 0293 showed she didn't have a great concern for her circumstance and her obligation to the County. He reviewed with the Board the Personnel Rules which dealt with the employees' obligation to call in when they were unable to come to work. Section 7.21 said an employee must "immediately" report to his supervisor his inability to report to work and the reason. Section 9.3 under Sick Leave with Pay, subsection 9.33, said "the employee shall notify the immediate supervisor as soon as possible prior to the beginning of the shift." By even the most liberal of these standards, the employee had an obligation to report immediately to his supervisor any inability to report to work. On April 2, Ms. Shannon was absent and did not call in until 8:55 a.m. She was informed orally of the need to call in immediately if she was going to be absent. On April 4, the oral notice was followed by a written memo indicating the importance of calling in immediately. On April 8, Mr. Bratton issued a memo to the entire Assessor's staff reiterating the call-in rule and quoted the relevant portions of the Personnel Rules. On May 6, 1991, Ms. Shannon was absent from work and did make a timely call-in, however, on May 7 she was absent from work and did not call in until 9:43 a.m. A letter was sent to Ms. Shannon citing excessive absences and instances of failure to call-in in a timely manner, and asked Ms. Shannon to respond. There was a meeting on May 15 where Ms. Shannon's attorney responded in written form. Later on that day, after considering the material presented, Mr. Bratton wrote a letter to Ms. Shannon terminating her status as a probationary employee because of absenteeism and her inability to follow rules and directives when reporting absence from work. Mr. Witty said Mr. Bratton's letter indicated two problems: (1) grossly excessive absenteeism that was clearly unacceptable and (2) after being given clear notice, Ms. Shannon was unable to call-in in a timely way on May 7, 1991. As a probationary employee, these were reasons which would justify termination. Chairman Maudlin asked for a clarification on the handling of probationary versus regular employees. Mr. Witty said there was a differentiation in the Personnel Rules and functionally the probationary period was an opportunity for employees to demonstrate to the County that they were going to be of value to the County, would be able to follow the work rules, and would make a contribution to the department in which they worked. Ms. Shannon had not demonstrated that in her 8-1/2 months of employment. Rick Isham said the Personnel Rules established a trial service period of one year. Chairman Maudlin asked if there was difference in the reasons for discharging or the manner of discharging employees if they were probationary rather than regular employees. PAGE 4 MINUTES: 6/12/91 0107 0294 Mr. Witty said there were two different standards. There was a less stringent standard for terminating probationary employees, reflecting that the probationary period was a time when the employees had an obligation to demonstrate their value to the County. If their value was not demonstrated, it was the appropriate time to discharge the employee. Mr. Hopp said the Personnel Rules applied to regular and probationary employees alike, giving guarantees of rights to employees. In Ms. Shannon's evaluations, nothing was ever mentioned about her absenteeism or about her inability to follow the rules. She came to this position with a very high recommendation from Lincoln County where she had worked as an appraiser for ten years. He didn't understand why someone would go from being a good employee to being one that would not be desirable to retain. The employer had an obligation, by law, to make reasonable accommodation to an employee for temporary disabilities. Ms. Shannon had a temporary back disability. There was a letter from Dr. Johnson to that effect which indicated the problem was temporary and that a certain accommodation would need to be made. Mr. Hopp said that all of Ms. Shannon's absences with the exception of Friday, February 22, were because of problems with her back. All the rest of her vacation time off was used for sick leave since she had used all her sick leave. A number of her absences were for only a couple of hours due to the need for therapy or an evaluation of her back. She was trying to limit her time from work but still had to take some time off in order to heal. She made a request to take leave without pay which was provided for in the Personnel Rules. It was a one-time situation for a necessary cancer related surgery. Another County employee offered to donate his sick or vacation time on an hour -for -hour basis. Her first late call in was before any notification had been put out by her office. He felt she deserved to be reinstated so she could prove herself to be a valuable employee. He said that "some difficulty in talking with witnesses had occurred." It was reported to him by employees of the Assessor's office that they had been told not to talk to him or Ms. Shannon. The employees said they felt their jobs were in jeopardy and risked discipline. Employees said they had been shown license numbers of vehicles which were parked in his parking lot one night when they were talking to witnesses from the Assessor's office. Rick Isham asked if Mr. Hopp was going to introduce any factual basis for these allegations. Mr. Hopp said these employees had asked that their names not be used. He said they were unable to subpoena records of the Assessor's office showing memorandum or whatever. Rick Isham said that these were strong allegations without any factual basis and could be confusing to the Board. PAGE 5 MINUTES: 6/12/91 0107 0295 Mr. Hopp said there was no way the he could compel those employees to testify at this proceeding against their will. Rick Isham asked if he had attempted to have them testify. Mr. Hopp said they did not choose to appear and give testimony. Mr. Isham asked if Mr. Witty was stipulating to the facts of these allegations of impropriety. Mr. Witty said absolutely not, and this was the first that he had heard of these allegations. Chairman Maudlin said he thought Mr. Hopp had said in his opening remarks that he would have testimony from other county employees. Mr. Hopp said he had said that other employees would testify, if they could be subpoenaed and forced to testify. Rick Isham said that this Board would direct any employees who Mr. Hopp requested to appear before this Board and testify on this case. They did not have to be subpoenaed because they were County employees under the direction of this Board. He asked Mr. Hopp who he would like to call to give testimony. Mr. Hopp asked that before employees were called to testify, Mr. Bratton, Mr. Wurst or Lynette Meier, secretary, be asked if they would admit that the employees were told it would be a bad idea to talk with him and Ms. Shannon or be involved in this case. Chairman Maudlin asked Mr. Wurst to answer that question. Mr. Wurst said that he brought the appraisers together on the day that Ms. Shannon was dismissed. He announced to the staff that Ms. Shannon was no longer an employee of the County and that "any statement that an employee made would not be the official position of this office or of the County and that those people who made statements would be personally responsible for those statements that they made." He did not instruct them that they were not to communicate with Ms. Shannon or her Counsel in reference to this matter. Mr. Isham asked if Mr. Wurst had told any employees that they could possibly suffer loss of their job if they participated in this hearing or assisted in the presentation of the grievance. Mr. Wurst said he had not. Mr. Hopp requested that Chairman Maudlin ask whether Mr. Wurst was aware of a memorandum listing license number of employees who came to his office after hours to talk about this case. Chairman Maudlin asked this question, and Mr. Wurst said he did not know of any such memorandum. Mr. Hopp requested that Don Hartley and Cecil Heal from the Assessor's office be called to testify. Mr. Hopp requested that Mr. Bratton be asked the same questions that were asked of Mr. Wurst. Mr. Maudlin asked Mr. Bratton who replied he did not issue any memorandum or speak to the staff indicating they should not talk with or get involved with this case. Mr. Bratton knew nothing about a memorandum indicating license plate numbers of people in the parking lot during a meeting after hours regarding Ms. Shannon. PAGE 6 MINUTES: 6/12/91 0107 0296 Mr. Hopp said he understood that Mr. Bratton had a history of retaliatory conduct with other County employees on Mr. Bratton's staff as well as in Mr. Bratton's previous position in Malheur County. The evidence supporting this allegation was supposed to be on the way from Malheur County but had not yet arrived. Mr. Witty objected to this allegation because it needed to be addressed with some kind of evidence other than his statement. Mr. Witty said he knew nothing about this allegation and did not believe it to be accurate. Chairman Maudlin asked Mr. Hopp what questions he would want asked of Mr. Hartley. Mr. Hopp said three: (1) had he already been disciplined for involvement in Ms. Shannon's termination, (2) the question regarding the license numbers, and (3) about whether he had been instructed not to talk with them and whether he perceived the staff announcement as a threat. Chairman Maudlin asked Cecil Heal if there was a staff announcement that the staff was not to speak with Ms. Shannon or her representatives, and if so, did he consider it a threat. Mr. Heal said a statement was made to the effect that if the employees spoke for or against or to Ms. Shannon, they would be doing so on their own and not as a member of Deschutes County. He regarded this statement a threat to his employment. Chairman Maudlin asked if he had seen a memorandum of staff car license numbers which were supposedly taken during a period of time when Mr. Hopp met with Ms. Shannon. Mr. Heal said not that he was aware of. Mr. Isham asked Mr. Heal about his statement that he felt threatened and asked what he thought it was a threat of? Mr. Heal said it may not have been but the majority of the employees did take it as a threat. Mr. Isham asked if he refrained from talking to Mr. Hopp after the statement was made? Mr. Heal said no, he talked to Mr. Hopp after that. Mr. Isham pointed out that even though Mr. Heal felt it was a threat, he went ahead and fully did what he felt he wanted to do. Mr. Heal said he did what he felt was right. Mr. Hopp requested that Mr. Heal be asked whether Mr. Hartley was going to come over and what the problem was with Mr. Hartley. Chairman Maudlin said that Mike Maier was attempting to locate Mr. Hartley. Rick Isham asked Mr. Hopp if there was some factual basis with respect to the subject of the grievance for which Cecil Heal would be an appropriate witness? Mr. Hopp said he spoke with Mr. Heal prior to the termination situation. He thought Mr. Heal could testify regarding whether other employees ever called in late. Mr. Hopp asked Mr. Heal if he was aware of other county employees in the Assessor's office who would call in late when they weren't coming in because of illness or would not call in at all. Mr. Heal said there had been such cases. Mr. Hopp asked if they were disciplined. Mr. Heal said not that he was aware of. Mr. Heal said he had been absent on time when he wasn't near a phone. He PAGE 7 MINUTES: 6/12/91 0107 029' came in the next morning and Jim Willis said that if he hadn't called in within 24 -hours, they would have assumed he had resigned. Since it was only 7:30 a.m., Mr. Heal said it had only been 23-1/2 hours, and that was the end of it. Mr. Witty asked the Chairman to ask Mr. Heal if he were a probationary employee at the time of the incident he was relating. Chairman Maudlin asked the question, and Mr. Heal said he didn't think he was a probationary employee at that time and thought it happened three or four years ago. Chairman Maudlin asked if after the memo went out regarding call-in time, he were aware of any occasions when employees had called in late. Mr. Heal said not since the memo. Mr. Heal said he wanted to change something he had said earlier. He had not talked with Mr. Hopp after Mr. Shannon was fired. His meeting with Mr. Hopp was before that took place. Rick Isham asked if Mr. Hopp and Ms. Shannon contacted him after the discharge. Mr. Heal said no. The Chairman thanked Mr. Heal for his testimony. Mike Maier returned and said that Mr. Hartley was not available to testify. He said when Mr. Hartley had been advised to come to this meeting, he said he didn't want to get involved, got in his pickup, and went out in the field. Mr. Hopp said that when Mr. Hartley had his final evaluation, he expected to be made a regular employee, however, his probation was extended because he became involved in "office affairs." Mr. Wurst came forward with Mr. Hartley's personnel file. Mr. Hopp requested that the reason for extending Mr. Hartley's probationary period be read into the record. Mr. Witty pointed out that the Board was not in Executive Session, and he was concerned that it wasn't appropriate to discuss the contents of an employee's personnel file, especially since the concerned employee was not in attendance at this meeting and had indicated that he did not want to be at this meeting. Mr. Witty also said that any conjecture about why an employee's probationary period was extended would have to include all of the factors which may have been involved in that decision. Chairman Maudlin said he would not read the evaluation into the record. Mr. Hopp said he had wanted the Chairman to ask Mr. Heal why Mr. Hartley had not attended, since Mr. Heal had commented that Mr. Hartley had told him that he wasn't going to appear because he feared for his job. Chairman Maudlin said Mr. Hopp should have asked that question when Mr. Heal was testifying. Mr. Hopp said he had suggested that the Chairman ask that question while Mr. Heal was available, but since he was assured that Mr. Hartley was coming, he hadn't pursued it. Rick Isham asked Mr. Hopp if he were saying that he was being denied the right to have a witness appear that he wanted to call. Mr. Hopp said they were being denied by virtue of the witness not being at this meeting. Mr. Isham said it might be appropriate to continue this hearing and to direct Mr. Hartley attend so that evidence could be obtained from him. Chairman Maudlin said this meeting needed to be continued since the Board had to start another meeting soon. PAGE 8 MINUTES: 6/12/91 0107 0298 Mr. Hopp submitted copies of ORS 659.425 and OAR 839-06-215 and 899-06-245 and pointed out that the County had not shown that it would cause an undue hardship on the County to accommodate the temporary back injury of Ms. Shannon. Rick Isham asked Mr. Hopp if he felt that "reasonable accommodation" included authorizing absences from work. Mr. Hopp said "yes, where that's not unrealistic," and had been prescribed by a physician as medically necessary. In the OAR he provided, it said that accommodation was a modification or change in one or more of the aspects of characteristics of a position including, but not limited to, hours, included but not limited to, continuity, extended breaks, split shifts, medically essential rest periods, treatment periods, etc. Mr. Hopp said it was their position that this language concerning "treatment periods" would deal with this situation. Rick Isham, referring back to Mr. Witty's testimony, pointed out Section 7.42 of the Personnel Rules which stated that, "An employee may be discharged during trail service for any good and sufficient reason as determined by the Department Head or the Board." Chairman Maudlin continued the meeting until 12:30 p.m. that afternoon. Chairman Maudlin reconvened the meeting at 12:30 p.m. and asked Mr. Hopp to continue with his presentation. Mr. Hopp asked if the County had been able to produce Mr. Hartley. Mr. Witty said they had been unable to locate Mr. Hartley. Rick Isham said there were two choices: (1) if Mr. Hopp felt Mr. Hartley was necessary for his case, the meeting could be continued until Mr. Hartley could be located, or (2) if Mr. Hartley was not important to Mr. Hopp's case, the meeting could proceed. Mr. Hopp said that the Board had been able to review Mr. Hartley's personnel file concerning his last review, and felt that Mr. Hartley's behavior in refusing to attend this hearing was strong circumstantial evidence dealing with the intimidation issue. He also felt it was coincidental that Mr. Wurst already had Mr. Hartley's personnel file at this meeting. He reemphasized Mr. Heal 's testimony regarding his feelings of intimidation and Mr. Wurst's testimony that he told the employees they were "personally responsible" for what they would say. Commissioner Throop asked Mr. Hopp if employees weren't personally responsible for what they said or actions they took. Mr. Hopp said Mr. Heal was intimidated by the comment and felt threatened. Commissioner Throop asked if there was anything wrong with the message that an employee was personally responsible for their own words or actions. Mr. Hopp said that when a supervisor was pointing this out, it was fair to believe the employees would PAGE 9 MINUTES: 6/12/91 010'7 0299 interpret it as "well, we're responsible, we best keep our mouths shut." Rick Isham asked how the intimidation issue was relevant to this proceeding. Mr. Hopp said it showed the treatment of Ms. Shannon. Ms. Shannon filed her grievance and then was terminated. Rick Isham asked if Mr. Hopp was saying that Ms. Shannon's termination for absenteeism was really a subterfuge. Mr. Hopp said he would cover why the work record didn't support the termination, so it had to be for something else. Especially where this had happened previously regarding his termination of a gentlemen named Floyd Holton in Malheur County. Mr. Holton's termination was for the purpose of retribution when Mr. Holton testified before the Grand Jury against Mr. Bratton. Mr. Hopp distributed copies of the indictment which listed Mr. Holton on the back page as a witness before the Grand Jury. Concerning the allegations made by Mr. Bratton, Mr. Hopp said there was Mr. Heal's testimony that other employees would call in late or not call in at all and there were no sanctions. There was Ms. Shannon's attendance record. The County gave employees one sick day and one vacation day per month so with approximately 20 workdays per month, it was anticipated that an employee would be off 10% of the time. Mr. Witty had documented 12%, therefore Mr. Bratton's termination was based upon a 2% absenteeism over that which was anticipated. There was a letter from Dr. Johnson which indicated Ms. Shannon's back injury and that there needed to be some accommodation, and there was no evidence that there was any accommodation. The request for sick leave without pay was provided for in the personnel rules and was approved by Blue Cross. The insurance company wouldn't preauthorize surgical activity unless they were certain it was necessary. The need for surgery was substantiated by a letter from Dr. Berry. Concerning the late call -ins, since Ms. Shannon called - in in a timely fashion on May 6, why wouldn't she have done so on May 7 ---because her phone didn't work which Mr. Marquis could verify. He said there was no justification for Ms. Shannon's termination, and that reinstatement with back pay and benefits was appropriate. Rick Isham asked Mr. Hopp what the outcome was of the Grand Jury indictment dated November 6, 1973, which he submitted into evidence. Mr. Hopp said the purpose of that handout was to establish that the gentleman that testified was terminated by Mr. Bratton in retribution. He later ran against Mr. Bratton and defeated him in the election. Commissioner Schlangen asked Mr. Hopp if he had said that all but one vacation day that Ms. Shannon had taken had really been used for sick leave. She said that meant Ms. Shannon had taken 30 sick days out of 8-1/2 months of probationary employment. Mr. Hopp said they were due primarily to a back injury which was a handicap which placed her under the state statute for reasonable accommodation. Commissioner Schlangen said that reasonable accommodation came into PAGE 10 MINUTES: 6/12/91 010'7 0300 place when the employee was otherwise capable of doing the work. If the employee wasn't at work, how could they do the work. She considered accommodation to be providing access to work stations, special chair, etc. Mr. Hopp said they were not talking about 30 days off from work in a row. He said the County had done a study on the number of sick days and vacations days that each employee had taken, and thought this indicated that a number of employees had percentages approaching Ms. Shannon's. Plus this situation was not permanent since Dr. Johnson's letter said only a temporary accommodation needed to be made until she could come back to work as a healthy employee. The purpose of the ORS and OAR was to supply that accommodation even if it meant some additional time off so that the employee could mend from the handicap and then get back to work as long as it did not totally disrupt the employer's work, and he said there was no evidence that it had. Chairman Maudlin read the law where it said accommodation was required where it would not impose an undue hardship on the employer, and that the reasonable accommodation would not prevent the performance of the work involved. He asked if Mr. Hopp's interpretation was that the work was being performed. Mr. Hopp said yes. Mr. Hopp pointed out that on Ms. Shannon's evaluations, she received the top rating possible for observance of work hours and attendance, and there was nothing on her evaluations to show that it was a problem. If it had been a problem, then it should have been brought up in an evaluation to alert her so she could make a correction. Mr. Witty said he was going to concentrate his rebuttal on those factors which would make a difference. He didn't feel that the document showing Oscar Bratton being named in a suit in 1973 had any bearing on this case. Mr. Heal Is testimony indicated that once he had not been timely when calling in and had not been disciplined however it was discussed with him. On the first instance of a late call in, it was also discussed with Ms. Shannon, so he didn't see any contradiction in the way the County had acted. There was an innuendo by Mr. Hopp that because Mr. Hartley's personnel file had been brought to this hearing, something out of the ordinary was taking place. However, just moments before the file was requested, Mr. Wurst had retrieved the file assuming that it might be needed based upon previous conversations at this hearing. He objected to any inference that Mr. Hartley's unavailability and departure indicated he had been intimidated by anybody in the Assessor's office. He felt it would be just as logical to conclude that Mr. Hartley was being intimidated by Mr. Shannon and her counsel. He said Mr. Hopp continually said that Ms. Shannon's termination was based upon her exhaustion of sick leave, while the documentation indicated that it was because her attendance was unacceptable. Mr. Hopp had also stated that Mr. Shannon was not warned of her attendance problems. Mr. Witty said that one of the basic implications of the employment relationship which employees must understand was that when they became an employee, they had to come PAGE 11 MINUTES: 6/12/91 0107 0301 to work. He didn't feel that was the kind of thing that required a warning. He felt that Ms. Shannon was in a unique classification since while still in her probationary period, she had exhausted her sick leave and vacation leave and was requesting an extended period of time off. Mr. Hopp indicated that the only absence which was real vacation was February 22, and the remainder were related to Ms. Shannon's back problem. Mr. Witty said that was clearly not the case and presented information showing the reasons given for several of her absences (i.e. on 9/11/90 her calendar said "Happy Birthday to me;" 10/8/90 vacation taken for death in the family; 1/11/91 vacation for plumbing problem; 3/22/91 doctor's note indicating upper respiratory infection and sinus infection; 4/2/91, 4/11/91, and 4/23/91 for irritable bowel syndrome; 5/2/91 moving day; and 5/6/91 and 5/7/91 for a sore throat). Ten of the thirteen absences listed were for other than back problems. He said the basic fact was that she was a probationary employee with a terrible attendance record, who demonstrated an inability to conform with rules which had been clearly stated to her, and therefore the termination was amply justified. Rick Isham asked Mr. Witty for his interpretation of "reasonable accommodation" in the administrative rule. Mr. Witty felt it was a misinterpretation of the rule to infer that a "reasonable accommodation" would mean accepting the fact that an employee didn't come to work. The whole point of an accommodation was to make reasonable adjustments in the work situation so that the employee could be successful. If the employee didn't come to work, there was no way to make an "accommodation." He said the County also knew that the back disability was not the basis for all of her absences. He had read cases where the primary problem was absence from work, and that was not considered to be something the employer could continually tolerate or accommodate. Mr. Hopp gave his rebuttal. Mr. Witty had indicated that Ms. Shannon had two days off which were not sick days. The day she wrote Happy Birthday on her calendar was not to indicate her reason for her absence which was actually due to illness. He said he had not indicated that everyday that Ms. Shannon was off work was because of her back, but he said a good share of the time that was her big concern. She had also been going to therapy. He said her back had improved and felt she should be given the chance to complete her probationary year and be a good employee. Chairman Maudlin said he understood the request for leave without pay was unrelated to any of these items. Mr. Hopp said that was correct. Chairman Maudlin asked what the doctor's statement indicating the surgery was an "urgent but not emergent procedure" meant. Mr. Hopp said it meant it was not elective surgery but also was not immediately life threatening. He said Ms. Shannon had cancer surgery approximately 10 years ago. The items used in the reconstruction portion of the surgery had later been determined to be cancer causing and needed to be replaced. Chairman Maudlin PAGE 12 MINUTES: 6/12/91 010'7 0302 asked when the consultation with Mr. Berry began concerning the need for this surgery. Mr. Hopp said it started about one to two weeks before the May 2 note from the doctor (may have been two hours of sick leave used on April 23). Mr. Witty said there was a pattern of Monday or Friday absences which if felt undermined the credibility of the excuses. He felt this pattern suggested that the employee was using sick leave for an extension of the weekend. Mr. Hopp rebutted that there were also several absences on Tuesday and Thursday which he felt were selected about equally with Monday and Friday. Mr. Hopp closed by asking that the Commission keep the tapes from this hearing since they might be needed for additional matters. He felt the basis for Mr. Bratton's letter was two late call ins and did not feel that was justification for termination. He asked that Ms. Shannon be reinstated, and that she be allowed to finish her probationary time and then, hopefully, become a regular employee. Mr. Witty said he felt he had already given his case adequately and did not have any further closing remarks. Chairman Maudlin closed the meeting to further testimony and announced that the Board would make their decision on this case on Thursday, June 13, at 11 a.m., in the Board's Conference Room. DESCHUTE COUNTY BOARD OF COMMISSIONERS Tom Throop, Commissioner in, Chairman BOCC:alb PAGE 13 MINUTES: 6/12/91 Ener