March 21, 2013 | Volume 43, No. 11

Union: Complaint mishandled

The union representative of Haines Borough workers this week said manager Mark Earnest has been “out of line” and not compliant with procedure in dealing with an employee complaint against police chief Gary Lowe.

Though he received a formal complaint against Lowe  on Feb. 19, Earnest did not contact the complainant until Tuesday to provide an explanation of how the matter is being addressed.

Earnest emailed the complainant after a CVN reporter asked him Tuesday why he had not yet responded.

“I am writing to let you know that I am following up on your complaint. I have not taken any action as of yet, but I will let you know if and when that happens. I expect to have that work completed very soon,” Earnest’s email read in its entirety.

Tom Brice of Local 71 said: “I would have thought if an employee had a concern such as this individual has that when they brought that to the folks at the borough, that it would have started the code process. It has not.”

“When there have been complaints of this nature, it is incumbent upon the employer – the borough assembly and/or the manager – to investigate and address those issues,” he added.

Brice said the complainant followed procedure by bringing the complaint to Earnest. “(The employee) brought it to the appropriate authority, at least in my mind, to have it reviewed and addressed.”

The borough’s elected officials, however, have differing opinions on whether proper procedure has been followed.

In an interview Monday, Mayor Stephanie Scott said the complainant shouldn’t have gone to Earnest first. “I don’t want to make this somebody’s fault. But I do want to acknowledge that the employee has to use the correct procedures in order to achieve their goal. I don’t want to make the borough into the bad guys here,” she said.

Brice maintains the employee took the proper steps.

Scott said the complainant made a misstep by not pursuing the grievance procedure outlined in the union contract. “Apparently (the employee) is choosing to arbitrate this outside of the process and that puts everybody in a difficult position,” she said.

Brice said that isn’t true. “In this circumstance, who has the authority to investigate and make a disciplinary finding? It’s not the union. It’s borough management and the assembly,” Brice said.

Earnest said Wednesday he has spoken with Brice, and Brice explained to him that due to the nature of the complaint, the grievance procedure in the union contract does not apply, and that is when the grievance procedure outlined in borough code kicks in. Earnest said he needed to look into the validity of Brice’s assessment.

Instead of moving the process along, Earnest and the assembly are shirking responsibility for dealing with the complaint, Brice said. “I think everybody is kind of sitting around pointing fingers at each other and nobody is doing anything,” he said.

  Earnest conducted an investigation into the complaint in February that included interviews with four police officers and two dispatchers, but has not shared the details of those interviews with the assembly. The police chief works at the pleasure of the assembly but is supervised by the manager.

Because the complaint wasn’t only about a specific incident but also cited ongoing problems and past incidents in the department involving multiple staff members, Brice also interviewed several officers and dispatchers.

According to Brice, all of the alleged incidents and behaviors were corroborated by the other employees during his investigation. “The things that (the employee) has alleged did occur,” Brice said.

In an effort to move the grievance procedure forward, the complainant submitted a copy of the complaint to clerk Julie Cozzi early Tuesday. According to code, Cozzi is required to provide receipt of the complaint, in writing, within three days.

Cozzi said Tuesday she forwarded the complaint to Earnest, who forwarded it to borough attorney Brooks Chandler. “(The complainant) will get a response from me, but I’m getting advice first,” Cozzi said.

According to code, the clerk is required to set a date for the grievance hearing no more than 10 days after the grievance is reported to the manager.

Cozzi said she doesn’t know if she can even follow code at this point, since the process has been so bungled. “This is a different situation because it has already gone in different directions… This has clearly gone every which way.”

In recent weeks, several assembly members have expressed doubt that the assembly is supposed to, or is even allowed to, be involved in a personnel complaint. But borough code says: “The assembly, the Mayor, manager or any person or committee authorized by any of them shall have power to inquire into the conduct of any office, department, agency or officer of the borough and to make investigations as to borough affairs and for that purpose may order the appearance of witnesses, administer oaths, and compel the production of books, papers and other evidence.”

Scott acknowledged that section of code could allow for assembly involvement. “Ordinarily I would say the assembly cannot get involved in personnel matters, but there is that section of the code,” she said.

During a personnel committee Wednesday, Scott read the section of code aloud to assembly members Joanne Waterman, Debra Schnabel, Norm Smith and Steve Vick. Waterman agreed the assembly can get involved, but said the code does not identify how to go about doing so. “I agree we have the right to, but how do we?” she said.

“I agree wholeheartedly that it would be nice to have some guidelines on what to do. I felt there was a lot of stumbling around; people wanted something, but they didn’t know quite how to get there. I would like it to be easier for us to do that,” Waterman said.

Schnabel said the fundamental flaw of the system is that Lowe is supervised by Earnest, but the authority to hire and fire lies with the assembly. “We don’t know what nature that supervision takes, unless the manager wants to tell us,” Schnabel said.

Smith said he doesn’t think the power structure is the problem. “I think it would work if we had all the information, but we don’t have all the information,” he said.