2009-1240-Minutes for Meeting May 07,2009 Recorded 6/2/2009FICIAL NANCYDESCHUBLANKENSHIPTES COUNTY CLERKDS OJ 1009'1140
COMMISSIONERS' JOURNAL
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF SPECIAL MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
THURSDAY, MAY 7, 2009
Present were Commissioners Tammy Baney and Dennis R. Luke; Commissioner
Alan Unger was out of the office.. Also present were Dave Kanner, County
Administrator; Erik Kropp, Deputy County Administrator; Mark Pilliod and
Christopher Bell, Legal Counsel; Tom Anderson, Sandy Ringer, Barbara Rich and
Dennis Perkins, Community Development Department; and Cecil Tibbetts,
AFSCME Negotiator. No representatives of the media or other citizens were
present.
Chair Baney opened the meeting at 10:20 a. m.
The purpose of the meeting was to conduct a hearing on a personnel grievance,
Step 4.
Tom Anderson gave a brief overview of the issue, including the reasons for the
layoff and how this particular situation developed.
He said that Barbara Rich was hired in September 2005. The offer was for a two-
year temporary position, based on grant funds. She had worked for the County,
then for the State Department of Environmental Quality as part of the La Pine
demonstration project, and had an enormous amount of expertise in groundwater
issues. The County received an additional grant that allowed the County to hire
Ms. Rich to continue the work she was doing in south Deschutes County.
Two years ago, in 2007, the project was not yet done and there was sufficient
funding left over in the EPA earmark to continue her position, which was extended
an additional year. A year ago, in 2008, the project still was not done but the grant
was exhausted by that point. Discussions were made regarding funding from
within the New Neighborhood project fund to continue the work being done. Part
of her position was also funded out of the high groundwater work plan from the
State. This particular project would be completed by July 2009.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 1 of 11
Commissioner Baney asked what type of communication was going on during this
time, while funding was sought. Mr. Anderson stated that he let Ms. Rich know
when funding was identified so that her work could continue.
Four rounds of layoffs in the Community Development Department began some
time ago, resulting in very deep and difficult cuts in personnel levels. In terms of
the south County groundwater protection program, he looked for ways to continue
funding Ms. Rich's position but there are no internal funds remaining to do this.
There are possibilities of new grant funding that might help, but as of this date,
nothing is certain.
In December 2008, when preparing the new budget and looking at the low level of
revenue, it became necessary to do another round of layoffs within CDD. It
appeared that there would not be funding for her position at that time. It was
decided that she should receive notice in January 2009 that without suitable
additional revenue, her position would have to be eliminated as of June 30, 2009.
He wanted to make it clear that this is in no way related to performance. Her
performance has been exemplary throughout, and he would continue to fund her
position if it were possible.
As opposed to other layoffs in CDD, which involved certain divisions and related
workload, this situation is different. Ms. Rich's position was first identified as a
temporary one, and was also for a very specific and unique task.
Commissioner Luke stated that when a position is characterized as temporary, he
thinks of the Road Department using road workers in the summer. He is not sure
that temporary is a suitable word, as the position was grant funded and not funded
through other sources.
Mr. Anderson said he only uses that word because that is the way it was first
documented.
When Ms. Rich was hired, the classification of senior planner was chosen for her,
basically to create a higher pay grade than it would have been as a sanitarian.
Commissioner Luke stated that Ms. Rich was a planner before she left for the DEQ
position. Mr. Anderson said that the job responsibilities were outlined in the
position flyer, and it was very different from job descriptions that exist for other
planners.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 2 of I 1
Commissioner Baney asked if any other senior planners work in a grant-funded
capacity. Mr. Anderson said that Peter Russell's position is partly funded by the
Oregon Department of Transportation for specific projects.
Because of the nature of the job, and that it relies on a different skill set and
experience, Mr. Anderson maintains that this position is not comparable to other
senior planners in the department. Most of the others are basically homogenous,
doing much the same work. It is believed that this position is supported by the
AFSCME. The County does not have bumping rights.
Dave Kanner said he denied the grievance in Step 3. The first things he asked
about were the contract provisions and what has been violated. He does not
believe there are any violations. The extension was not in writing. And additional
issues should not be allowed to be raised at subsequent steps. When granted one
year, there is no guarantee of it going into a second year. He feels they followed
the proper process.
The idea that this should be considered the same as any other senior planner is not
backed up by any language in the contract. He also reiterated that this has nothing
to do with performance.
Commissioner Luke confirmed that all Senior Planners are 25-A, but there are
three different types of Senior Planners. She was hired at 25-A and is now at 26-
A. Commissioner Luke asked if any other Planners have the same kind of
responsibilities; Mr. Anderson said no.
Cecil Tibbetts, a negotiator representing the union, said that Mr. Kanner indicated
the contract was not violated. For the record, the reason for the grievance is that it
was violated. He spoke to the provision that includes language about a decision to
hire, transfer, promote and layoff shall be based on skill, ability, qualifications,
recent experience, training, length of service and work record.
There is nothing in this that says that a specific person should be addressed outside
the group. He feels Ms. Rich was not given the process that was required.
Something is being read into the contract that is not there. If Ms. Rich is incapable
of doing a job within the group, that's one thing. But this was never addressed.
Limited duration employees are used throughout Oregon in a variety of ways.
Usually there is a start date and a finish date, although many employers string them
along. The County sought other funding after the first fund was exhausted. If an
employee is kept past the ending date, then a new contract would be required. A
verbal comment is not enough.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 3 of 11
Mr. Tibbetts added that the union strongly feels that Ms. Rich is not a limited
duration employee. Also, she was not used just for this limited project. She is able
to do other jobs and has done so. This is a violation of the contract. This needs to
go back through the process and she should be compared with the other senior
planners to see if she is able to do the same work. As these things are scored out, it
would be a fair process that would comply with the contract. This is the position
of the union. She was used more broadly than the original description implied, and
has the ability to do other work typical of a senior planner's position.
Commissioner Luke pointed out that Ms. Rich has done a good job of outlining her
case.
Barbara Rich said that she feels that she has been told that she has specific skills
and cannot do other work. She pointed out that she has worked on other projects
and the same process applies to much of the Code work being done on a regular
basis. She has worked in a variety of projects over the years. This fact has been
disregarded even though she has more experience as a planner than most of the
others. She feels as if the work she has done has not been understood or
appreciated. She worked at Deschutes County for years while she worked on the
regional planning for the DEQ.
She understands she started out as a limited duration employee. This is typically
for no more than 18 months. She maintains that she is a regular, permanent
employee and should be treated as such. She is paid out of the same fund code as
other planners. She does not know how a contract can be continued when it was
for a limited duration.
She said that Mr. Anderson indicated that he did find further funding, but this was
not put into writing, so the terms of the situation were unclear. Other senior
planners are paid out of the same fund code; and she was funded out of three
separate fund codes. She should be considered at the same level as the others.
She realizes she has unique capabilities and skills, but much of that was through
her experience working at Deschutes County. She continued to work on other
planning projects while working on the project, and wants her overall experience
considered.
Commissioner Luke said that he never considered Ms. Rich as anything but an
asset.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 4 of 11
Mr. Tibbetts said that he would like to see this issue referred back to the
department and consideration be given Ms. Rich at the same level as the other
planners. The process should have been handled differently from the beginning.
Mark Pilliod stated that it seems apparent to him that there are positions for
persons who hold the title of senior planner that have unique training; for instance,
in transportation planning. If he understands the argument, in removing a position
from the budget for financial reasons, the County is obligated to consider all
persons within that classification despite the fact that there may be funding and a
business judgment made whether to retain a person with a specific background. In
regard to Article 14, Mr. Tibbetts would indicate that management cannot make a
decision on a specific skill set.
Mr. Tibbetts said that the qualifications and skills are there, and the time to
consider this is during the process. There is a right to lay off and eliminate
positions. However, the person selected for layoff has to be considered by taking
other things into account. The overall skill set was not considered in this case.
Mr. Pilliod argued that it would then mean that any planner in a position should be
able to step into another planner's role, even if this person has a specific function
and skill set. The County is obligated to consider staffing for specific needs, such
as transportation planning.
Mr. Tibbetts said that the process needs to be engaged so that the skills of each
employee can be considered. The process was never done properly.
Commissioner Luke said he has some questions that may need to be addressed in
executive session. Mr. Pilliod replied that it has to be very specific to be handled
in that fashion.
The Board and County Counsel went into executive session under ORS
192.660(2) (h) from 11:20 to 11:20 a. m.
Commissioner Luke said his main concern is the original written contract, which
was not renewed. Reading through the history of this issue, he said he needed
clarification on how the decision was made to eliminate Ms. Rich and how much
the temporary contract applied in this decision.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 5 of 11
Mr. Anderson said that Ms. Rich's position had to be eliminated due to a lack of
funding. Whether she was considered a regular employee is a factor, but not a
primary factor. Building inspectors are hired to do specific work, but the pool is
fairly generic. In Ms. Rich's case, she was hired for a very specific purpose.
Other senior planners are recruited for specific skill sets as well. Often senior
planners are associate planners who were promoted. These positions are not as
interchangeable as permit technicians or building inspectors.
Commissioner Baney stated that if a position is grant funded, it is considered to be
of limited duration. Mr. Anderson said this is considered but not the major focal
point. Commissioner Baney asked if all of the components among all senior
planners are used to figure out which skill set should be retained. Mr. Anderson
stated no; it never got to that point. This was a business decision due to the nature
of the position, and she was not considered for the other jobs even though she may
be able to do the work of another senior planner. He is not sure this could be
brought into the analysis. He believes that per the contract, it is a different job in a
different organizational part of the department, and he is not allowed to get to the
point where they can compare the skill sets of the different senior planners.
Commissioner Luke asked why this would not be legal per the contract. This says
to him that since this was grant funded and the others were not, that this employee
could replace another and the other employee could grieve the layoff.
Mr. Pilliod said that even though hypothetically someone could grieve his or her
replacement, this is not relevant. The person would have to go through a process
as well. He asked what the unique characteristics are of the various senior planners
that render the groups as not being interchangeable. Mr. Tibbetts suggested they
are interchangeable. There is a long-range planner, a transportation planner and
three that are unspecified. If the grant-funded nature of Ms. Rich's position is not
the main reason, then what is it.
Commissioner Baney said that the County through past practices prefers to hire
employees who can handle various functions. She asked if this was taken into
consideration, and whether it would have changed the outcome. Mr. Anderson
replied that there are five other senior planners: transportation, which requires a
very specific skill set; and one long-range planner who is the lead person on the
comprehensive plan update and is very specific. He does not know if Ms. Rich can
do this work, but the person hired for that position was hired for that reason.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 6 of 11
His opinion is that it is very specialized work. He considers her present work as
technically specialized as a transportation planner's work might be. There are also
three senior planners, and each was promoted from associate planner ranks. In
order to obtain this, they had to show that they could do the work of a senior
planner and work as a lead person. Ms. Rich may also be able to do that work as
well, but has not been a senior planner in that division. She has some background
in this but he is not sure if she can demonstrate the same level of expertise as those
who were promoted into the position.
Commissioner Baney said she doesn't see that Ms. Rich was overlooked, as she
was working in another capacity, so therefore was not considered for those
positions.
Mr. Anderson said that no one has specifically been hired into a position except the
long-range planner; others were promoted from within.
Commissioner Luke stated that the comparison between Ms. Rich and other senior
planners never took place because of the funding of her current position, so no
others were considered for layoff. Part of this was the limited duration issue. Mr.
Anderson said that even though they had the same title, they were in a different
part of the organization and had specific skill sets.
Mr. Kanner stated that Mr. Tibbetts indicated that management must consider
those within a job classification, but there is nothing in the contract that says this.
Past practice has been to look at employees in the same division. The contract is
silent in this regard. There is only one senior planner in the environmental health
division. That position is being eliminated. There is no other position to compare
it with. This is consistent with County practice. To pursue this line of reasoning
sets up a scenario for all employees within a job classification anywhere in the
County, and bumping rights do not exist in the contract.
Commissioner Baney stated that she agrees somewhat, but does not believe it
would set up comparisons throughout the County. However, like jobs within a
department can and should be compared. This position was created as unique and
it was viewed as unique, although it was paid for and categorized through a variety
of ways.
Mr. Tibbetts stated that funds came in for an electrical inspector, and when that
funding was gone, another person who was multi-certified stepped in. It is not as
crystal clear as Mr. Kanner stated.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 7 of 11
From the employee's perspective, they ask where the aspect of fairness is. It is
expected that the County, even with past practice, would do an analysis within the
class but beyond the division, within the department. People with identical skill
sets could end up in a lot of different places in the County. The fact that the
analysis was never done indicates it is a violation of the contract.
Commissioner Luke said that if Ms. Rich had a contract covering each extension,
this would not be happening. It is commendable that funding was found. The
Board has always made department heads be aware that if a position is grant
funded, they have to make that clear to the employee. If the grant ends and the
person keeps working, the department has to find a way to pay them.
He believes that Mr. Anderson made a business decision and took a lot of things
into consideration. It is unknown if Ms. Rich has the skill sets to handle another
position.
Commissioner Baney feels that the process was legal and worked for the
department. A contract would have made things a lot more clear. Once other
funds were found, the person was no longer limited duration, but this was part of
the consideration for the layoff. The opportunity to look at the skill set was not
done as it perhaps should have been. The employee was taken on as a senior
planner. Looking at the skill set of each position was not analyzed. The process
was legal but perhaps not proper based on how the position was analyzed.
She would like this process redone, although the outcome could end up being the
same. It is on the record that Ms. Rich as worked as a planner and this needs to be
acknowledged. All senior planners and the skill sets needed should be analyzed,
considering crossover and how to efficiently deliver services.
Commissioner Luke stated that Ms. Rich worked for the DEQ for a long time.
Commissioner Baney said this was in conjunction with the County. She was then
hired back in an open process for the County position.
Commissioner Luke said that he feels it was a unique situation because she was
hired as a temporary employee but the contract was not extended. Commissioner
Baney pointed out that the research being done was unique because of the
partnership and the type of work being done. Commissioner Luke asked why this
position should be sent back to the department for reevaluation. Commissioner
Baney said she feels that there should be a comparison within the classification and
not necessarily within the specific division.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 8 of 11
Mr. Kanner said it is obvious that this discussion will have to be continued so that
Commissioner Unger can make a decision.
Mr. Pilliod said that if the Board is inclined to have the department reevaluate this,
he thinks it is still within the department's discretion to determine those persons in
the senior planner classification which, due to their unique background or skill set,
need not be considered as a part of Article 14. Commissioner Baney clarified that
more than the division and grant funds should be considered. The position was no
longer merely grant-funded nor a stand-alone position at that point. It needs to be
looked at covering all senior planners no matter which division it is in.
Mr. Anderson disagreed. He said that beginning in the current fiscal year, the
nature of the funding of the position changed, but the job did not change that
drastically. She was still working on the local rule issue and other issues having to
do with south County groundwater. She also worked with the high groundwater
team, which had to do with the same general area of science as her previous work.
She was included as a part of the requirement of the grant, looking at the impacts
of development on high groundwater lots. These members were mostly skilled in
environmental health issues. This was budgeted in the long-range planning
division, however, as it did not make sense to put it with the local rule funding.
The tasks Ms. Rich performed were similar.
Commissioner Baney said that they are still weighing heavily on the grant but this
is not backed up with a contract. There is an obligation to have those contractual
agreements in place. If the person is doing the outreach and the public process,
that is similar to what is being done for a mining site or an event venue. The same
process is used. When it became non-grant funded, it became a regular senior
planner position. She needs to know that the person is not capable of doing the
same duties as others within the same job title.
Commissioner Luke stated that there should have been a contract in place. There
are some good points that should be addressed in all departments. However, he
does not believe that the contract was violated. The process could have been
better, though.
The group took a five-minute break at this time.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 9 of 11
Commissioner Baney asked what article other than # 14 needs to be read. It was
pointed out to be #3. She said the components have been applied to a process that
was subjective, based on the grant funding. She does not believe the position was
continued as a grant-funded, time limited position. It is classified as others within
the same department. The components needed to do the work are the same that
could be required for others in the same department, although there may be
specific skill sets. The position was brought on and retained, doing some similar
job functions eventually.
Commissioner Luke said that if there was a senior position open at some point that
did not involve groundwater, it is unknown whether Ms. Rich might have qualified
had she applied for it. He has problems with the process but does not feel the
contract has been violated. Management has to make the call because they are
there and know the details.
Commissioner Baney said she thinks the County can stand on this, but the process
was not clear. Perhaps the contract was not violated, but the process was not used
or was not appropriate.
Commissioner Luke stated that he believes that this was a limited duration
position, but management did not formally continue the contract arrangement.
Commissioner Baney said that there is in effect a person who is considered one of
a group, and the work that is required is part of a greater skill set.
Commissioner Luke said he will not send it back through the process for
reconsideration. Commissioner Baney stated that her preference is that it be sent
back, as she feels the process is flawed.
Mr. Pilliod said that assuming the decision is to send the matter back, he hopes that
the Commissioners will provide direction as to how the process should be fulfilled.
This may be important for other directors in a similar situation. In essence, he
wants to know to what extent can staff or a director consider functionality or the
separate divisions in drawing up conclusions that one division would not be subject
to Article 14. Mr. Anderson would then be directed to consider a possible layoff of
every senior planner.
Commissioner Baney stated that the grant-funded aspect no longer exists. This
changed the position. Mr. Pilliod said that this would mean that this position in
each division would therefore need to be considered. Commissioner Baney stated
yes.
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 10 of 11
Commissioner Luke asked if a grant happens to run out during a time of general
layoff, whether grant-funded people should be considered during the layoff
process. Commissioner Baney stated that it has everything to do with the contract
being in place. The original hire was altered, and the playing field changed.
Mr. Tibbetts said that he wants to clarify some contractual points. A limitation of
management rights does not mean to you can ignore language in the contract.
He added that a decision to lay off is based on a lot of things; most of these were
not considered in the decision. This was incorrect and violated the contract. If the
Commissioners decide it was not a violation, there will be further action. The
language is fairly clear. It is possible the same decision could result, but if the
process is done in good faith, there could be a different decision. This process was
not engaged and needs to be.
Being no further discussion, the meeting ended at 12: 30 p.m.
DATED this 7th Day of May 2009 for the Deschutes County Board of
Commissioners.
ATTEST:
Tammy Baney, Chair
Dennis R. Luke, Vice Chair
aa-t- 6&e4,~
Recording Secretary
Alan Unger, Commissioner
Minutes of Board of Commissioners' Work Session Wednesday, May 6, 2009
Page 11 of 11
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