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HomeMy WebLinkAbout1982-02-02; City Council; 6890; Personnel Board action.. Z 0 6 8 a 2 0 Z 3 46#- MTG. 2/2/82 DEPT. PER .-- .I CITY AllY TITLE DEPT. HD. PERSONNEL BOARD ACTION CI1.t OF CARLSBAD - AGEND, . BILL It is recommended the City Council affirm the action of the Personnel Board as set forth in Personnel Board Resolution No. 2. ITEM EXPLANATION: WILLIAM J. SMIGIEL, Sr. appeared before the Personnel Board on December 3, 1981, to appeal his dismissal from city employment. The Personnel Board heard the appeal and sustained the dismissal, Personnel Board Resolution No. 2. A copy of the verbatim transcription of the hearing is available for review in the office of the City Clerk. FISCAL IMPACT: The estimated fiscal impact consists of staff time involved in scheduling, hearing, and transcribing the board action. EXHIBIT a-Personnel Board Resolution No. 2 b.Copy of transcript of SMIGIEL hearing of December 3, 1981. I 1 2 3 4 5 6 7 8 9 3.0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2 A RESOLUTION OF THE PERSONNEL BOARD OF THE CITY OF CARLSBAD, CALIFORNIA, ANNOUNCING ACTION ON THE APPEAL OF WILLIAM J. SMIGIEL. SR, WHEREAS, the Personnel Board of the City of Carlsbad, California, met on December 3, 1981, to hear the appeal from termination of William Smigiel, Sr.; and WHEREAS, the Personnel Board heard evidence and argument presented by the city and Mr. Smigiel; and WHEREAS, the Personnel Board after consideration of all the *. evidence and argument finds that: (a) Mr. Smigiel is unable to perform the work required for the classification of Maintenance Worker I and (b) Mr. Smigiel presented no evidence indicating his abil.ity to perform the work required of a Maintenance Worker I. NOW, THEREFORE, BE IT RESOLVED by the Personnel Board of of the City of Carlsbad, California, as follows: 1. That foregoing recitations are true and correct. 2. That the termination of Mr. Smigiel should be sustained. PASSED, APPROVED, AND ADOPTED at a regular meeting of the Personnel Board of the City of Carlsbad, California, on the 3rd day of December , 1981, by the following vote, to wit: AYES: Richardson, Bates, Mitkevich, Osuna, Watkins NOES: ABSENT : 7 --) . -\ ; (’ 1- -’ / , ,’ I ,.----2- <id ,/ _, -4 , qkdl/&&$$# il IChairrnpirTdf‘ the ATTEST: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Richardsoa7 18 19 Smigiel 20 23 24 25 26 27 28 CITY OF CARLSBAD Meeting of : PERSONNEL BOARD Lyle Richardson, Chairman Date of Meeting : December 3, 1981 Donald Watkins, filember Time of Meeting : 7:OO p.m. Jack Osuna, Pember Place of Meeting: Council Chambers David Bates, Member . Camille Mitkevich, Member I The Personnel Board of the City Council of the City of Carlsbac was called to order by Chairman Lyl& Richardson, 7:05 p.m., Thursday, December 3, 1981, in Carlsbad City Hall Council Chambers. The Chairman directed the Recording Secretary to show that all members of the board Qere present. Appellant Employee, and family; Dan Hentschke, City Council Representative; Jerome N. Pieti, City Representative; Mr. Robert' Metcalf, City Witness; City Employees Witnesses BALDWIN, BROWN, MITCHELL; City Observer Frank Mannen, Assistant City Manager/Admin. The record will show others in attendance were William Smigiel; Chairman Richardson introduced new board member CAMILLE MITKEVICH. (Following is a transcript of the Hearing of the Case 05 WILLIAM. J. SMIGXEL vs the City of Carlsbad.) This hearing is being held in accordance with Rule XVI, Personnel Rules and Regulations for the City of Carlsbad. Know that those present at this hearing have received a letter of notice. you receive this notice, blr. Smigiel? . Yes, I did. Fine. preside at this hearing and I am responsible for the proper and orderly conduct at this hearing. that all facts are fully developed, made a part of the board's proceedings. all the facts. These facts must include all matters, favorable and unfavorable, which are properly a part of the case. On the basis of these facts this board will make its recommendations. In accordance with Section 5, Rule XVI, Resolution No. 6423, this shall be a fact finding hearing and the rules of evidence shall not necessarily apply. Did The appellant filed a timely appeal, As Chairman I shall It is up to the board to ensure No board can properly evaluate a case without having All witnesses will be sworn and will 1: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Smigiel 17 Richards0 f8 19 20 21 22 23 24 25 Smi g ie 1 Richards- 27 Smigiel Richardson 28 I Page 2 of 23 be subject to examination by the grieving employee, an employee representative, members of the board and council. which would render him unable to afford the appellant a fair and impartial hearing? Now, is there any member of this board aware of any reason Let the record reflect that all members answered in the negative. e. Mr. Smigiel, you are advised that as the grieving employee You may be present at the open proceeding of this board. You may be represented by any person or attorney at all open You or your counsel or representative may question any You shall state your case first. You may call witnesses. You did not supply the board any documentary evidence, so you will not be able to present anything that has not been presented to the board before this time. Unless, Mr. Smigiel, you had good cause for not doing so, We will give you an opportunity to say so if you have documents to present. No, I don't. I just have a statement to make.- You and your counsel, of course, may examine any exhibits thus far received in evidence, And, at any time during these proceedings you or your counsel may submit in writing any brief, argument within the range of affairs of the matter under investiga tion, that you may desire to bfing before the board. You may take the stand and be sworn as a witness, in which ca you may be subjected to cross exm'ination'just as any other witnes before the board. Or, of course, you may remain silent. in this hearing you have the following rights: proceedings. witness who testifies before the board. Do you have any questions regarding the procedures of the conduct of this board, Mr, Smigiel? No, .I don't. Do you have any witnesses that you will be calling this evening? No, I don't: Will you be calling yourself as a witness? . e - . . ._ ..- - - - __ .... i ^I .. - .-_.---. . . .. Smigiel 1 Richardson 2 Smigiel 3 Richards03 Pieti 5 Richardson Pieti 6 7 8 9 10 Richards0 fi Pieti 12 13 14 Richardson 15 16 17 sncigiel 19 2c Richardson 21 22 23 24 Smigiel 25 26 27 28 Page of 23 - .. I wish to read a statement. You-may make a statement, but without being sworn as a witness. Will you be a witness? No, I won't. Does the city, Mr. Pieti, have witnesses that you will be calling? Yes, sir, we have witnesses. Please ask them to stand and identify themselves. I would like to Tntroduce Mr. William Baldwin, Assistant City Manager for the Maintenance Operation; Chuck Mitchell who is a supervisor in the Maintenance Department; Don Brown who is a Street Superintendent in the Maintenance Department and Robert Metcalf who is a consultant with J. Faire and Associates, a rehabilitation counseling service. Gentlemen, you will please stand and raiseyour right hand at this forum. . . . and I will be giving some information which could be considei evidence as part of my presentation, and I would like to be sworn in. Please raise your right hand. evidence that you shall give in the matter now before this hearing is the truth, the whole truth, and nothing but the truth, so help you God? (The record shows a chorus of I D0"S. ) Mr. Smigiel, you may make your opening statement. I would just . . exactly why they did fire me. Mr. Smigiel, you are here as the appellant. You are here to present your case, your evidence. You are asking the Personnel Board to rule on an appeal that you have made. rule in the matter you must present your case or there is no case. F7ell, like I said at the beginning, I'll make a statement and if that's what you want to make a case out of we'll go from there. I do not f,eel that it was a fair decision for the City of Carlsbad to fire me. I was going to make a big issue of this, but I feel it only fair to my family and myself to try to make this brief. The city's memo of 11/24/81, the subject of this hearing. . . Thi: is all I have, I guess. The one basic flaw in the memo is that Do you solemnly swear that the I guess 1'11 leave it up to the city to tell me What reasons. For the board to ed -. 1 2 Richardson3 4 5 6 Smigiel Richardson7 8 Smigiel Smisiel 10 Richardson 9 T-J. Richards0 Smigiel 12 13 15 16 17 . 18 19 20 21 22 23 24 Richardson 25 26 Smigiel 27 28 -- -.ige 4 of 23 I do-not feel that the action of the city abides by the state labor code. Now we go to the following documents that the city has presented. Mr. Smigiel, we will take the evidence from the city as it is presented. At this point it has not been presented. Please make your opening statement and keep to that. Well, I guess I'm a little green on this, because I just have this statement to make. 8 Briefly tell us what is your grievance; what is your complaint; what is your appeal, Mr. Smigiel? My feeling is that I see no basis for me being fired. You were fired from the city on what date, sir? On the 22nd of October. And the reason given? In the notification of discharge of employment from the City of Carlsbad at the end of working hours on October 22nd and the reasor for this action is my inability to perform the €unctions of the classification of Maintenance Worker I in the Street Division. They claim that this was verified by Dr. Greenfield of San Diego, reporting an examination of March 10, 1981. . . .and since that date my disability has become permanent and stationary and that I have been employed in a modified assignment. assignment is not a permanently budgeted position and cannot be continued. Therefore, no position exists in the organization for me. It goes on that because no position exists that I have ?. You can put it in your own words. This modified twice been offered the opportunity for rehabilitation in another occupation and that I have twice refused. I tell you right now that I never refused it. that is. I asked postponement on it. The rest is just to say that I will be paid on such a date and stuff. Mr. Smigiel, you say that you were dismissed on October 22nd as a Maintenance Worker I in the Street Department, right? Are you saying that you could perform the duties? Well, I'll have to say that I don't know 2f I could perform the duties. I never really went back to my regular duties. I came back to work in February and the first couple of days I came back I had a lot of problems with my leg and f couldn't perform the duties. As we get along to that, Rehabilitation, Richardsod 2 3 Smigiel Richardsod 5 6 Smigiel 7 Richardsone 9 Smigiel Richardsohc Smigiel 11 Richardson I2 Watkins 1: Smigiel 14 Watkins If Smigiel Watkins It Smigiel 1: Watkins It Smigiel Watkins 2( 2: Smigiel 2: 2: Watkins 24 Smigiel 2l Watkins 2' Richardson 2; Pagt .I of 23 Jell, we're getting into argument'now of the statements. should be sworn as' a witness, You Do you agree? Would you care to be ;worn? hre. ?lease stand, raise your right hand. Do you solemnly swear that the evidence you shall give in-this matter now in this hearing shal De the truth, the whole truth and nothing ,. but the truth, so help fou God? Yes, I do, YOU say at this point that you were not given the opportunity to perform your duties? Not within the last six months before my termination. Hhat else do you have to add, Mr. Smigiel? That's about it right now, Do any members of the board have questions? Mr. Smigiel, you had an industrial accident commission hearing, is that correct? In August? I had one, yes. You were granted a disability rating? Yes, I was.'' What was the degree of the rating? 18%. In the comments when that rating was issued, did they indicate that it would impair your ability to perform physically? It differed from doctor to doctor. Did the Industrial Accident Commission concur on the rating of 18%? . . .and what is your understanding of that 18% disability rating? Yes they did. To tell you the truth, I really don't know what the rating means. I guess 18% of my body is no longer of use. Would it be a reasonable statement then, or presumption to say that you were at least 18% deficient in being able to perform the physical duties required of your job? Yes. No further questions. Do we have any further questions from'the board? questions of this witness from the city? Do we have any lf there are no further 1 2 Pieti 3 4 a 9 10 11 12 13 14 15 Ric ha.rd sa6 Pieti 17 18 Richards&' Pieti 20 21 22 23 24 25 26 27 28 -. Page of 23 questions of this witness we'll proceed with the testimony of the city. Mr. Pieti, you may present your case. The city's opening staement is very brief and it is the city's contention, and the city will show, that the action of the city was proper in that it did comply with the existing laws, rules and regulations, that are applicable to the city and its employees The sequence of this action was to-inform Mr, Smigiel of the city': intention to dismiss him. . .and the reasons. . . , providing him an opportunity to respond and to appeal. , .which he did. , , which resulted in this hearing scheduled this evening. The city contends that the dismissal was appropriate. We say appropriate in that it was the'only action which could serve both Mr. Smigiel as an employee and the city as an employer. The action served both parties by providing for rehabilitation for Mr. Smigiel from a classification and task he could no longer perform, providii J. him with temporary disability payments and permitting him to be trained for full employment in the future. The action served the city in that it provided an opening in a position of Maintenance Worker I which it was unable to fill as long as we retained Mr. Smigiel. Mr, Pieti, you may call your witnesses. I would like to call Mr. Robert Metcalf of J. Faire Associates as my first witness. We could either have Mr. Metcalf at the Stan1 0.0 I think he can sit right there at the table. That will be fine. Before I begin talking to Mr. Smigiel. . . I mean Mr. Metcalf about Mr. Smigiel, I would like to state the stipulations that were made to the board. I just would like to restate them prior to beginning this. First of all, we stipulated that Mr. Smigiel was dischaggGd as an employee, as he stated, on the 22nd of October 1981 by the City Manager. Second, we stated that the dismissal complied with the personnel rules of the City of Carlsba and existing state law. Third, that Mr, Smigiel has sustained an industrial injury to his left knee on or about September 21st, 1979. Four, that the above mentioned industrial injury resulted in a finding of a permanent disability of 18% by a Workers Compensation Appeal Board decision. This was Case #80SD6132, 3 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 . 1E . 19 2c 21 22 22 24 25 26 27 Met calT 28 Page of 23 dated August 7, 1980. Having restated the stipulations made to the boardl the city would now like to provide information which would provide a transi- tion from the stipulated information to the testimony that we are about to hear on behalf the city. Following Mr. Smigiel's injury in 1979 he worked off and.on for the balance of 1979. he was back at work. Subsequently; following the injury he underwent surgery for the knee and he ended up being placed on industrial leave, which under the City of Carlsbad personnel rules permitted an employee with an industrial injury to be out for a period of ninety days. leave he had not recovered sufficiently to return to full duty and he was placed on a leave of absence without pay. purpose of this was to continue his status as a city employee, giving him all rights, benefits, and privileges that belong to a city employee, although he did not draw pay. He remained in that status, at his request and upon approval of the City Manager, until his doctor, Dr. Helgager reported to the city that his injury was sufficiently improved for him to return to work. And as he has just stated, he then returned to He had some sick days'and he had some days ,. Following the period of industrial The work on February 2, 1981. Right at that point the city took action of its own and based on the evaluations, the visual evaluations of his condition, and the tasks he was to perform, the city asked J. Faire Associates to do a task analysis of Main- tenance Worker I in the Streets Division and we sent a copy of that taSk analysis to a doctor selected by the city, along with Mr. Smigiel, for a reexamination of his knee. And it was based on these acts that we arrived at the conclusion that at that point Mr. Smigiel should be placed in modified assignment. NOW, I'll get to the place where we had J. Faire Associates do a task analysis. view of what the tasks of his classification were. Mr. Metcalf would you tell us what your title is and who your employer is? My title is Certified Rehabilitation Counselor and I work with a group of rehabilitation counselors called J. Faire Associates, based in the City of San Diego. This was done so that we had an outside objectivi Pieti Metcalf Pieti Metcalf Pieti Metcalf Pieti Net cal f Pieti Metcalf Pietr Metcalf Pieti Met c a 1 f Pieti Metcalf Pieti Metcalf Pieti Me tca 1 f 1 2 3 4 5 6 7 a 9 3.0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & Page of 23 Do you know Mr. Smigiel? Yes, I know Mr. Smigiel. Have you counseled Mr. Smigiel concerning rehabilitation? Yes, I have. Is Mr. Smigiel currently undergoing rehabilitation? Yes, he is attending Southwest Trade School in electronics technicians, *. Does he receive any compensation while he is undergoing this training? My understanding is that he receives $154 per week plus mileage. How long do you anticipate his rehabilitation training,will continue? The plan that I have drawn up calls for.him to start school on November 16, 1981, which he did. And to complete his training there Kay 21, 1982. And then he is to have 60 days of placement assistance, The plan would terminate about July 16, 1982. Based upon your experience, what would you estimate his employ- ment opportunities upon completion of this training? If he successfully completes the program, they have had 100% placement rating out of the school.' There is a strong demand for electronics technicians. So, I think that he will have an excellent chance of being employed. And following initial employment, do you think there is an exceller chance of Mr. Smigiel having continued employment in this category: Yes, I do. The board has a copy of the J. Faire Associates job analysis for the city position of Maintenance Worker I in the Streets Division. Did you do this job evaluation? Yes, I did. Do you consider this to be an adequate or a fair evaluation of the tasks involved for a Street Maintenance Worker I? Yes, I do. And how do you conclude that? I received a written job description from yourself in the personnel office and then I came over to the maintenance yard and talked to Dude Greagrey, who took me around the yard and drove me around and explained the various tasks involved in the street maintenance How did ybu reach that conclusion? t . . '. __ . .. , . . . . - .. --~ ... >. . .. __.____-__.._-. .. . .. "&. . . 1 2 3 Pieti 4 5 Metcalf 6 Pieti Richardson7 Smigiel e 9 Metcalf 11 12 1Z 14 15 Richardson Bates 1E lri 1€ 15 Metcalf 2c 21 22 Richardsa 24 Smigiel 2f Metcalf 2( 27 2E Pieti 4I - Page of 23 work. Dictionary of Occupational Titles and included that. I got a faik representation of what was involved in the job. And that, to the best of.your knowledge is the evaluation that was then returned to the city and subsequently forwarded to the city doctor? Yes. I have no further questions of Mr. Metcalf. Mr. Smigiel, do you have any questions of Mr. Metcalf? Then I looked up the definition of the position in the So I think e. Just one. You said I have six months from May 21st, the day my school ends. catch on to the new job, what happens to me then? Usually what I do. . . twice a month to see how you are doing. two or three months we find that you are not cutting it in electronic technology then we'll do a further evaluation to see why. Maybe its not your thing or maybe you don't have the aptitude for it. If we find that is the case then we will have to change objectives and come up with another plan. Do any members of the board have any questions for Mr. Metcalf? Yes, I do. Mr. Metcalf, in your experience as a rehabilitation counselor do you sometimes analyse a job as you'v6 done here, then analyze the individual's physical capabilities and try to match him to the job and form any conclusions as to what they can physically perform on the job you analyzed? Normal procedure is for me to develop the analysis and submit it to the doctor because that is a medical judgement and so I don't make those judgements. I have my opinions but I don't make them known. Yes, Mr. Smigiel? Can I have one more question? Mr. Metcalf, to the best of your knowledge, have I ever refused rehabilitation through you or anyone at any time? No, to my knowledge what occurred is that you informed us that you preferred to return to your modified work at the city, to try that and that you would like tb postpone your rehabilitation. If there are no further questions of Mr. Metcalf, I would request If it so happens that for some reason that I can't As you know I check in with you at least If Githin the first . . "._ ._ .. . . . . . _- , .. ", . *I..- 1 2 Pieti 3 4 5 Mitchell 6 Pieti 7 Mitchell Pieti 8 Richardsong . 10 11 12 Mi t che 11 Richardson Pieti 13 14 Mitchell 15 Pieti 16 17 18 19 20 21 Mitchell 22 23 Pieti Mitchell 24 25 26 27 28 Piett Page .I of 23 that he be excused, He has some illness in his house and he would like to leave. (The record will show that Mr. Metcalf was excused at 7:27 p.m.) I would like to call Chuck Mitchell. Mr. Mitchell could you state your full name, your classification, your title and the division and the department you work in.' Chuck Mitchell, Street Department, Supervisor, and I work in streets. Do you know Mr. Smigiel? Were you his supervisor? Yes, I do. I have supervised Mr. Smigiel. How many years experience have you had in the streets division? One question. What dates? Well, we have two supervisors and.we don't have one definite. . , Oh, I see. You cover all the times but notnecessarily with the same group of men. Go ahead, Mr. Pieti. How many years of experience do you have in the your division in the Maintenance Department. I have been in the streets division for a little over twelve- years. This is a classification description of the position of '(street)-Maintenance Worker and I show this to you in this form as a refresher. This is the classification Mr. Smigiel formerly held with the city. Having observed Mr. Smigiel after he returned to work in February of 1981, being familiar with the classificatio~ description and based on your experience, do you believe Mr. Smigiel could continue to work as a (street) Maintenance Worker I in the City of Carlsbad? No, I do not believe he had the physical capability to do it. Were there any specific instances that you can recall? Well, when he first came back he had a lot of trouble with his leg, bother him. that his leg hurt, that he couldn'kdo that, so we had to keep trying to find odd jobs for him to do. You made these modified assignments and you employed him pretty . '. - You were supervisor part of the time. What time? He would come back and work a day or two and his leg would We would give him several jobs and he would complain much in these modisied assignments up until the time he left the ci Mitchell 1 2 3 Pieti 4 5 Mitchell Pieti 6 7 Mitchell 8 Pieti 9 Mitchell 10 Pieti 11 12 Mitchell Pieti 13 Richards= Smigiel 15 16 Mitchell 17 18 Smigiel 19 20 21 22 Mitchell 23 24 25 26 Richards0 Mitkevich 87 28 Page .I of 23 He was working in the sign shop making signs, doing odd jobs for awhile and then'we put him on as an electrician helper on the truck helping the electrician. We don't have an actual classi- fication for electrician helper. Do you have any type of budgeted position for electrician helper or any other of the modified assignments he held when he returned? No, we donl-t. Are there any classification descriptions for any of the positions that you are aware of? h None that are without physical capabilities of doing the job. In your opinion is there a need in the division now for any special assignments such as the ones that were provided for Mr. Smigiel? Not in my opinion. So, what you are telling us is that there, essentially, was no work to be performed by Mr. Smigiel? Not classification type work, no. I have no further questions. Mr. Smigiel, do you have any questions? Yes. Mr. Mitchell, since I came back to work in the street division in 1979 approximately how many times were you my direct forman who Qave me any orders? I can't even recall. Off and on. There's no telling how many times. For the record, Dude Gregory C;Tas,for the better part of time, your direct supervisor. The other thing I would like to ask you is, as far as this electrician helper which the city has no call for, would you agree that it is customary for anyone that is injured in the department to be sent out as an electrician helper, anyone else beside myself? Well, at the time we felt it might be useful to have a helper on the truck in case something went wrong and the electrician was in a building for a long period of time. But, it was no city. classified job and since you have left, we haven't had a helper. Any questions by any member of the board to Mr. Mitchell. Yes, Mr. Mitchell, when was the last time that Mr. Smigiel was put in with the street crews to work that you found he was incap- able of doing the job? Mitchell 1 2 /. 3 Mitkevich 4 Mitchell Richardson 6 7 Hitchell 8 Richardson Pieti Browfl Pieti Brown Pieti Brown Pieti Brown 9 10 11 12 13 14 15 16 17 le 19 2c 21 22 2: 24 25 26 27 2e - Page 2 of 23 He was put in off and on for three or four months after he origi-- nally came back from his injury and was released from the doctor, at which times he complained that his knee was still bothering him. Can you give me a month? I couldn't give you a month. Mr. Mitchell is it your testimony that theri? are certain normal duties that are performed by a strGet maintenance worker that Mr. Smigiel says that he could not perform? Yes, there are. Any further questions from the board? Mr. Pieti? I would like to call Don Brown. Mr. Brown would you state your name, your title, your division and the department in the city in which you work. My name is Don E. Brown. My title is Street Maintenance Superintendent in the street division of the Maintenance Department with the city. How long have you served in the capacity of Street Maintenance Superintendent? Since about 1970. I'll show you a copy of the classification description which was used by J. Faire and Associates for reference if you need it. is a classification which was held by Mr. Smigiel when he was a city employee. Based'on your experience and your knowledge of the classification, are you of the opinion, having observed Mr. Smigiel as superintendent on his return to work, that he could perform the functions of the Maintenance Worker I. No,I don't think he could. This Why do you. . . What do you base that opinion on? Well, there were several instances that we would put him in a xew and his knee would bother him; he couldn't shovel, since it uould bother his knee. Basically, it was the knee. We put him to driving the truck now and then. Je came in with a doctor's release that specified that he was on nedication and couldn't drive. He just was physically unable to 30 the jobs assigned because of his knee or the medication. He was on medication at the time Pieti 1 2 3 Brown 4 Pieti 5 Richardson Smigiel 6 7 Brown a 9 Smigiel 10 Brown 11 Smigiel 12 Brown l3 14 15 Smigiel 16 Brown 17 Richardson 18 Smigiel 19 Richardsw 21 Brown Richards& Brown 23 Richardson 24 Brown RichardsA5 Bates 26 27 28 Brown A Page 3 of 23 So, he was employed in a modAfied assignment. Do you see as Street Maintenance Superintendent a need for a continuation of the modified assignment such as Mr. Smigiel was given in the streets division? Not on a continuing basis, no. I have no further questions. - Mr. Smigiel, do you have any questions for Mr. Brown? Mr. Brown, at any time that I was assigned under you, did 1 refuse to work? You told me several times that you could not perform shoveling. You told me you couldn't shovel. I asked you, did I ever refuse work. If you assigned me to some-' thing did I ever say that I did not want to do it? I just don't think that I could say that you said that, no. In the statement here it says that. I have a statement here that you wrote that says I refused to work. To work, . . You couldn't work. You told me you couldn't work and I asked you at times to go out on the boom truck, did I not with the electrician? You said that you couldn't climb up in the back. I did not say that I couldn't climb up in the back, did I? Certainly did. We won't get into various arguments. If, Mr. Smigiel you wish to disagree with the witness you can certainly present your case. Thank you. Mr. Brown, there were times that Mr. Smigiel told you that he was unable to perform certain tasks that you wished to assign to him Yes. Were there any tasks outside of shoveling? Driving. Couldn't drive.' Anything else? Those are two of the most common ones, 'Do any members of the board have any questions. I just have one, Mr. Brown. At any time prior to Mr, Smigiel's knee injury did he ever indicate that he was unable to perform any of the duties? At that time, no. .. Watkins Brown Watkins Brown Wa t k in s Brown 1 2 3 4 5 6 7 E 9 Watkins 11 12 12 Brown 14 Richardson 15 I€ lr; , 21 Watkins 2; 2: 2f 2: Smigiel 2e Watkins Bates 2'; 2f *- Page 2 of 23 Mr. Brown, it's your opinion that Mr. Smigiel, if he were to return to work tomorrow morning, would not be able to, in your --- judgement as a Superintendent of streets, be able to carry out his duties. Is that Correct? Unless there is some medical evidence to show different than I have had since he left I would have to say that he would not be Are you in your position aware of the budget in your department? Yes. Do you have an opportunity or responsibility to formulate that portion of the budget that deals Gith your division? Yes, I do. Was the work that Mr. Smigiel doing budgeted at the time that he was put on modified duty? capable. ?. (No. answer. ) If Mr. Smigiel were to return to work in a modified duty position, what would the effect be on the budget in your department? Probably at this time we would be overspent. Mr. Smigiel, you heard your former supervisor or former boss indicate that you have been unable in his opinion to shovel, to drive--at least these are the two itemswhave. aa you have evidence that would'indicate for this panel that you are, indeed, able to do those things, plus the other tasks that are listed in the J. Faire report outlining your job description? I have a letter from the doctor saying I have stopped medication and I could have driven. of approximately two'or three months. It had nothing to do with my leg. What we're looking for to help us is whether or not you have evidence. . . Apparently you didn't because I understand from the chair there was nothing submitted that would show this board that, in fact, that position which the city alleges is not true. Do you have evidence to show us that? No I don't at this time. I have no further questions. Mr. Smigiel, were there at any times duties normally assigned to a maintenance worker refused--maybe not necessarily refused by you--that you were unable to perform and that you told your I was only on the medication for a perioc .. only have 18% disability. Let me ask you this. here, but do you think it's fair for the City of Carlsbad to continue to keep he position open for you to wait for an operatio for this knee? And maybe I'm getting a little far a5ield Smigiel Bates Smigiel Bates Smigiel Bates Smigiel Bates Smigiel 1 2 3 4 5 6 7 e 9 Richards& Watkins 13 1: 14 1: lt Smigiel Watkins 1: l! 2( Smigiel 2; Watkins 2: 20 21 Smigiel 21 2' Watkins 21 supervisors that you were unable to perform? Yes, there was times I told my supervisor that. I would like to know the last time that you were unable to perform one of those duties. That would probably be my driving. And when was that? Like I said. . ,. approximately. . . well, probably four months ago five months ago. How long prior to your dismissal? Two to three months before my dismissal. And, you couldn't drive because of your knee? No, not because of my knee. Anything else? I have one. Mr. Smigiel, I'm calling your attention to a report issued by Dr. Richard Greenfeld. You have that, dated March 10, 1981, right? of the report. the record? Go right ahead. The patient's disability precludes very heavy work. He has lost approximately one quarter of his pre-injured capacity performing such activities as bending, stooping, lifting, pushing, pulling, or other activities involving comparable physical labor. reviewing the patient's job description I doubt that he is going to be able to perform these activities and I feel that either a modified job within the City of Carlsbad or rehabilitation would be required." Mr. Smigiel? Would I like to dispute it? Did you dispute it to him when you received this? him and say that this report is incorrect? No, because I'm still waiting for another operation on my knee. And I don't know if one quarter is equal to 25% disability. I was on medication. Your attention is directed to the last two paragraph Do you have any objection to my reading this into After Did you ever dispute that statement from the doctor Did you call I - ~ .. .. .. . .. .. . . I ..* ., . Any questions from members of the board? 'No questions, Mr. Baldwil I, Smigiel 1 2 Watkins ' Richardson 3 Smigiel 4 5 Watkins Smig-iel 6 Richardson 7 8 9 10 11 12 Pieti 13 14 Baldwin Pieti 15 16 17 Pieti Baldwin 19 20 21 22 23 24 Baldwin Pieti 25 Richards Smigiel Richards&? % I ~ - - Page 5 of 23 They've done it for many other people. That-*s all I have to say. Mr. Smigiel, do you have medical opinions contrary to Dr. Green- feldLs relative to the two paragraphs just read? Yes, I do, Do you have them here? I don' t know. , Does anyone have further questions"of Mr. Brown? Mr. Brown, you are excused. I think possibly that if Mr. Smigiel can find his evidence that it can be presented at a later time. Mr. Pieti? I would like to call Mr. Baldwin. PI. Baldwin,would you state your full name and your position and the department of the city in which you work? William C. Baldwin, I am the Assistant City Manager/Maintenance and Operations. Maintenance for the city. Do you know Mr. Smigiel? Yes. I show you a copy of the classification description of Maintenance Worker I, streets, for your perusal and at the time Mr. Smigiel was working in modified assignments in the Street Division you were acting in a capacity as Assistant City Manager, but I know yo1 were familiar with Mr. Snigiel's case. You are currently with the 1 operations and maintenance section and have responsibility for the I manage the Street, Equipment and Building maintenance for the city's streets in conjunction with personnel such as Mr. Brown and Mr. Mitchell. Based on your knowledge of the classification, your work within the department, the infor- I mation you have concerning the department's budget, do you see the necessity for creating any type of modified position within the department similar to the one that has been filled by Mr. Smigiel over the last several months prior to his separation. Not at this time. I have no further questions. Mr. Smigiel, do you have any questions for Mr. Baldwin? No, I don't. Mr. Chairman, those are all the witnesses that the city desires 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Richardso $0 21 . Pieti 22 Richardso $3 Smigiel 24 25 .. 26 27 28 Richardson Page 17 of 23 to present. We have attempted to show that upon receiving an opinion from Mr. Smigiel's personal doctor, Dr. Helgagar, that he could return to work. The city based upon the observation of its supervisors and its managers sought to examine the question further rather than aggravate an existing injury and provide a deepened disability for a city emp3oyee. Consequently, we requested 3. Fai're and Associates to do the task analysis which has been presented to the board and to Mr. Smigiel. We forwarded that to Dr. Greenfeld and that was followed up by an examination of Mr. Smigiel by the doctor and we asked the doctor for a medical opinion concerning Mr. Smigiel's ability to function as a Main- tenance Worker I in streets. On the basis of those two opinions he was provided modified assignments to sustain him as a city employee until such time as the city could arrange for rehabili- tation. At that time the city felt there was no economical nor human need to be served in continuing this modified employment and the offer for rehabilitation was made to Mr. Smigiel, ultimately accepted. He was discharged. He is currently under- going his rehabilitation training, receiving temporary disability paymer-ts and mileage to and from the site of his training. You have heard the estimates of his employment future from the rehabilitation couselor, Mr. Metcalf. The city contends that the city acted properly and appropriately and we would request that the board sustain the dismissal by the City Manager, making such a recommendation to the City Council. Mr. Pieti, you have documents that you have presented in timely fashion to the board. I take it that you wish these to be formally offered as evidence. Yes. Mr. Smigiel, you saw the documents offered by the city. Do you have objection to them being offered as evidence? Well, I do in one sense. I don't know if this is out of order, or what. But as far as Dr. Greenfeld's report. . . As I recall the first job evaluation (description) the city sent Dr. Greenfeld was for Park Maintenance Worker. As far as Dr. Helgegar's report, my doctor, he also got a different type of report. We aren't arguing the validity of the documents. The case 1 2 3 Smig i e 1 Hentschke 4 5 6 7 a 9 Richardson 10 Hent schkql 12 Richardsok3 14 15 Smigiel 1E ’ 17 ’ 1s RichardsoE 21 Smi g ie 1 Richards&: 2: 24 Smigiel Richards& Smigiel 2~ 25 2E -- Pagt .8 of 23 is within the documents we are talking about, Do you have any objections of their being offered in evidence as they were submitted in a timely fashion? Yes, I do have an objection. . . I think his objection is to the why and not form of the document itself. What he is arguing 5s evidently within the document. If he has any objections to the form of ,. the document, that the docu- ment was not accurate in terms of the document itself, that is all we need here. statement, you can accept the document into evidence and then give evidence as to whether it is true or false. These documents will be accepted into evidence unless there are any objections from the floor. Now, I think we ought to hear%r. Smigie1”s objections to the evidence as contained in the report, which is what he was doing before. Yes, right, Mr. Smigiel, would you like to argue about the evidence. Well, number one, I would say. . . . Let me start with J. Faire and Associates. That as far as Mr. Pieti states, that they offered me rehabilitation through J. FAire and Associates, which makes it sould like they came to me and said,”Hey, we’d like to give you this rehabilitation.” a lawyer for that. It took me from March. . . from February until the time I got it to finally get rehabilitation. Do you find anything in the report from J. Faire and Associates that you do not agree is true? No, I don’t think so. Do you have any objections to any of the other documents or do you have any argument with any of the other evidence that has been given here. Yes, the doctor’s reports. All right. Please proceed. As I started to say before, I. . As far as the doctor’s reports went, Dr. Helgager received an inquiry as to what my job classification was and if I could perform.the job. Pieti’s office sent Dr. Helgager a questionnaire on park maintenanceman, which I am not. If you have objectibn to what is Mr. Greenfeldh I fought for that. I had to get Mr. I wasn’t at the time, so his 1 2 3 4 Bates 5 Richardson Bates 6 7 Pieti 9 10 11 12 13 14 RichardsoLE Smigiel 1~ 11 I€ 1s 2c 21 2: Watkins 22 2'; 2E - Page -9 of 23 report bo me was false reporting. Dr. -Greenfeld, I had brought this to Mr. Pieti's attention a couple of times. report anything about a street maintenanceman. I had found something about a park maintenanceman, Mr. Chairman, may I interject right here? Certainly. I'd like to ask Mr. Pieti a questidn.. Is there any particular difference in the job description of a park maintenanceman and the street maintenanceitizn insofar as the physical requirements of the two positions? I don't have a copy of the park maintenance worker class. Maintenance Worker I is essentially the entry level for all manual labor type classifications. Worker I which is the basis for the J. Faire and Associates evaluation to the point of including photographs of the equipment, photographs of people working on streets. minor differences, but off the top of my head, I can't recall what they are. Any further questions. Mr. Smigiel, do you have anything further? I would like to state that as far as the job classifications of park maintenanceman and street maintenanceman are concerned there is approximately 80% difference in their job classifications The classification of park maintenanceman said I could not remove trees, I could not cut hedges, I could not cut wood, miscellaneous things which have nothing to do with the street department, street maintenance. Mr. Smigiel. Mr. Chairman, May I? (Nod) Do you have any evidence that, . . or some extenuating circunstance that you were unable to subnit to this board to refute Mr. Greenfeld's letter? I don't believe I do right at this moment. Mr. Smigiel it is very difficult for. . . at least for me, to attempt to determine whether or not you had been properly dismissed or terminated when you are unable to provide evidence to this panel. The city has provided sworn testimony from some four witnesses who have alleged that in a certain position And the same thing with I didn't find attached to either doctor's May I ask a question? I have a description for Maintenance There may be some I I don't. .. . . . . . . . . .. 1 2 3 4 5 6 7 Mitkevieh 8 9 Smigiel 10 11 Mitkevich 12 Smigiel Mi tkevicd3 Smigiel 14 15 Mi tkevi ch Smigiel 16 Mitkevichl? 18 Smigiel Mi tkevi~d-~ Richardsm 21 Smigiel Richards& Smigiel 23 24 S, Spouse 25 26 Richardson 27 28 - Page. 10 of 23 . . . It is my opinion that from your position you have indicated feelings and thoughts on your part indicating some objections on your part to certain statements made by your former supervisors or Dr. Greenfeld's letter. But we have no evidence that has been submitted by you that indicates that you can refute the city's testimony and it makes it difficult for someone in my position to say to you, ''I can evaluate -. the evidence you submitted.", because you haven't, by :your own statement, you have, no evidence to submit. That is all I have to say, Mr. Chairman. I'd like to elaborate a little bit. Mr. Smigiel, you mentioned I that you anticipate another operation on your.knee. Are you presently under the care of a doctor? No, I'm not. I'm waiting for. . . I'm trying for the last six months to. . . Let me ask you, has an operation been recommended by a doctor? No, it was in the beginning. By what doctor? I didn't want it at the time. Both doctors said that I most probably would need another operation, You've already had one operation, is that correct? I've had two operations. One was major, one was minor. In other words, this operation that you are anticipating is just merely something that you think you might need? Yes, That's all. Does the board wish to question any of the witnesses? Mr. Smigiel do you have anything further to offer? Just my statement. Fine. We'll be happy to hear it. I don't know if it's appropriate that my wife make a statement about this. I would like to speak for my husband at this time. I want to be put in as a witness and I want it on the record that I want to be put in as a witness since I have something. to offer. All right. Do you solemnly swear to. . . Raise your right hand, please. give in this case will be the truth, the whole truth and nothing but the truth, so help you God? Do you solemnly swear that the evidence that you will ., S. Spouse - - _- --.-__I ~ - Page A of 23 I do. There seems to be some question about whether my husband can drive a motor vehicle or not. That's one of the conditions that the city says that they did terminate my husband for from the City of Carlsbad. In front of .me I have a note from Dr. Albertson--that is the doctor that had him on the medication-- I l( 1: 1: 1: 11 It Richards& 1: 1z S.. Spouse 2€ Richards s. SpousP 22 Richards 23 Smigiel Richard&# Pieti 25 Richard Bates Yl 27 28 I which says that he was unable to drive a motor vehicle. .Due to a nervous breakdown, caused by the city,'which was provexi because of everything that happened to my husband in the past two years. He had to go into Mesa Vista Hospital. He spent almost two months in the hospital under a doctor's care. He had to be put on tranquilizers which prevented him from driving a motor vehicle. Okay. Dr. Albertson gave me a note and I submitted it to the City of Carlsbad: Okay. This is a note stating that my husband is quite capable of operating a motor vehicle. Okay. This is from the same doctor, Dr. Albertson. NOW, I presented this to Mr. Pieti when my husband was up for an in-house promotion for Sweeper Operator, which he was denied' because of his disability. This is what Mr. . . Is your name Mr. Bates? Is that what you asked him for, proof of anything that he could. . .- Mr. Bates was asking for proof that would refute anything in Dr. Greenfeld's report. Okay. Well, I want this into the record that my husband is quite capable of doing some of the work that the city is saying that he cannot do. He's quite capable of quite a few things. We would be happy to accept that Mrs. Smigiel. Do you have anything further to offer. Well, I would like to stay here because I don't want my husband to be over upset. The city has caused quite a bit of grief. Mr. Smigiel, do you have anything further to offer. No. Mr. Pieti, do you have anything further to offer? No, sir, I don't. Any members of the board have anything further? I have one question to Mrs. Smigiel. You indicated that there is proof that the city has caused you% husband a nervous breakdown. Is that proof that has been submitted at some other time, or is it available for us now? Okay. And' I gave them this paper. 28 - Page ,,2 of 23 The doctor's reports. . .Do you mean, do I have the doctor's reports stating that it is work related? between the City of Carlsbad and a couple of doctors, Dr. Lyon who is a psychiatrist and Dr. Albertson, another psychiatrist. Both state that it is work related, that my husband did have a breakdown. This is being disputed (The record will show sotto voce discussion among board members.) The board will now be closed so that we can convene in private . and reach our conclusions. Mr. Chairman, are there to be closing statements? Yes, thank you, Mr. Hentschke. a closing statement? (The record will show Mr. Smigiel asking Mrs. Smigiel to read from his prepared statement.) I do not feel it was a fair decision for the City of Carlsbad to fire me. it only fair'to my family and myself to try and make it brief. In the city memorandum of 11/24/81, the subject of this hearing, I will agree with one, three and four. As for number two, I do not believe that my dismissal complied with state laws. have filed charges with the California State Department of Fair Employment and Housing. matter I will not make any comments at this time. Now, we can go to the following documents such as the city has presented. I come here tonight feeling-that I am accused of wrongdoing. As to number one, the report of Dr. Greenfeld-- that is the opinion df one doctor. 1 the basis of an opinion of one doctor can support the action 1 justified. : Thank you Mrs. Smigiel. Mr. Pieti. Mr. Smigiel, do you wish to make I was going to make a big issue of this, but I feel I Until there is a hearing on that I do not know where or how that the city has taken. The cause for my dismissal is not You have heard the city's evidence and its witnesses and we respectfully request that the board uphold the decision of the City Manager. Thank you. deliberate . (The record will show adjournment at 8:lO p.m. of five board members and Attorney Hentschke to the Councilmatic Conference Room Anything else from the board? We will adjourn to Richardsod 2 3 4 5 ‘6 7 8 9 10 11 12 13 14 15 16 11 - 1E 1s 2c 21 22 2: 24 25 2E 27 2E - Page 3 of 23 This- board will come to order. (The record will show reconvene at 8:30 p,m.) The Personnel Board after consideration of all the evidence and argument finds that (a) Mr. Smigiel’ is unable to perform the work required for classification of Maintenance Worker I and (b) Mr. Smigiel presented no evidence indicating his ability to perform the work required of a Maintenance r. Worker I and (c) that the decision’ of City Manager to terminate the employ- . ment of Mr. Smigiel be upheld. The board is adjourned. (The record will show adjournment at 8:35 p.m.’ . /QAdJ/ Virginia Schuldt, Recording Secretary . MEMORANDUM DATE : November 24, 1981 TO : Chairman and Members of the Personnel Board FROM : Personnel Director SUBJECT: Board Hearing Scheduled for December 3, 1981 c. In accordance with the provisions of Personnel Board Resolution No. 1, the following information in the appeal of WILLIAM SMIGIEL to the Personnel Board is forwarded. To preclude the introduction of irrelevant documents, the city is prepared to stipulate to several points. 1. That William Smigiel was discharged as an employee of the City of Carlsbad on October 22, 1981, by the City Manager. That the dismissal complied with Personnel Rules of the City of Carlsbad and existing state law. 2. 3. That Mr. Smigiel had sustained an industrial injury to his left knee on or about September 21, 1979. 4. That the above mentioned industrial injury resulted in a finding of a permanent disability of 18% by the Workers' Compensation Appeals Board, decision Case No. 80SD6132, dated August 7, 1981. The city hereby submits to the Personnel Board in support of arguments that will be made, the following documents. 1. Report of Richard Greenfield, M.D., dated March 10, 1981. 2. A report of J. Fair and Associates, employment and rehabili- tation consultants, dated February 23, 1981. 3. Statement of Roger W. Greer, Director of Utilities, dated 4. Statement of Don Brown, Street Maintenance Superintendent, October 2, 1981. dated October 2, 1981. 5. Statement of Chuck Mitchell, Street Maintenance Supervisor, dated October 1, 1981. The city intends to call as witnesses the following persons. 1. Roger W. Greer, Director of Utilities, City of Carlsbad. 2. William C. Baldwin, Director of Maintenance, City of Carlsbad. c 2 3, Don Brown, Street Maintenance Superintendent, City of Carlsbad. 4. Chuck Mitchell, Street Maintenance Supervisor, City of Carlsbad. 5. Robert D. Metcalf, a certified rehabilitation counselor with J. Fair and Associates. . P. It is anticipated that all the aforemen'tioned witnesses will be present at the time the board convenes and will be prepared to be sworn as witnesses for the city in the Case of William Smigiel vs City of Carlsbad. If the chairman and members of the board have any questions regarding the attached documents or the witnesses the city intends to call, please call the Personnel Director at 438-5583.