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HomeMy WebLinkAbout2007-01-30 Min - Board SPECIAL MEETING January 30, 2007 In accordance with District Code Section 2.08.010, the TDPUD minutes are action only minutes All Board meetings are recorded on audio tapes which are preserved perpetually and made available for listening to any interested party upon their request. The special meeting of three members of the Board of Directors of the Truckee Donner Public Utility District convening as a Skelly hearing panel was called to order at 2:32 PM in the TDPUD Board room by Chairperson Sutton. ROLL CALL: Directors Joe Aguera, Patricia Sutton, and Bill Thomason were present. EMPLOYEES PRESENT: Peter Holzmeister, Nancy Waters, Scott Terrell, Ed Taylor, Kim Szczurek and Barbara Cahill CONSULTANTS PRESENT: Steve Gross, District Counsel and Richard Brown, Special Counsel to the Skelly hearing panel. OTHERS PRESENT: Frank and Juanita Schneider, Christine Stanley, Neal Mock, Robert Johnston, Tim Taylor, Ron Hemig, Pat Waite, Brian Woody, and 3 other members of the public. PUBLIC INPUT There was no public input. DISCUSSION AND POSSIBLE ACTION RELATED TO PRE-DISCIPLINARY (SKELLY) HEARING (TERRELL) Board Panel Counsel Richard Brown of McDonough Holland & Allen PC explained that according to District policy the employee has chosen to have a pre-disciplinary hearing before a three board mem- ber panel. This gives the employee an opportunity to tell the panel reasons why the discipline should not be carried out. First the employee gives an oral statement and calls on witnesses; the District staff presents their side; the chair and panel ask questions of either side; and then each side can give a closing argument. Scott Terrell's legal counsel Brett Collinson said this case is about the incidents relating to the coal contact. He asked if the board had seen the letter from PEER (Public Employees for Environmental Responsibility) regarding Mr. Terrell's first amendment rights. Mr. Collinson then entered the plea to the three charges against Scott Terrell: 1. Participated in legal action against the District—deny 2. Undermined the effectiveness of the power supply engineer- deny 3. Insubordination remark- deny. All Mr. Terrell was doing was carrying out his job description to promote conservation and communication with the public. Scott Terrell was surprised to be here at a hearing considering all he did was to disagree with the coal proposal due to effects on the climate, global warming, environmental and California laws now and upcoming. He felt he needed to speak up and has the qualifications to support his position. He thought he would lose his job. He did not know it was ok to have a difference of opinion, but felt strong to oppose the coal contract. Mr. Terrell thought this was in the best interest of the community and the contract was too risky and too long. Mr. Terrell wanted to clarify that he was not even in Truckee at the time of the November 15 meeting, but became involved afterward and spoke to the board respect- 1 Minutes: Jan. 30, 2007-Skelly Hearing - - fully at later board meetings. Mr. Terrell went on to explain his side about the causes for disciplinary action: 1. The email to Tom Wagner of Sierra Club did not suggest a lawsuit or any legal action 2. He had no intention to undermine the effectiveness of the power engineer. He is aware of power supply issues and only wanted a report of different power options that would work 3. He is sensitive to Peter Holzmeister being upset- maybe his demeanor suggested the comment "I know how to get my way". Mr. Terrell said he sent an email to Peter regarding community feelings and listed ways to reduce power requirements. Scott Terrell thought he would be fired after the November 22 meeting with Mr. Holzmeister. So he thought it would be better for him to work from home. Counsel Steve Gross, representing the District staff, restated that Scott Terrell may not have been an instigator in the lawsuit, only a joiner; Mr. Terrell felt he had a first amendment right to speak out; Mr. Terrell hurt the power supply engineer and Mr. Terrell does not remember making a statement about "get his way". Mr. Gross questions Mr. Terrell's credibility. Mr. Terrell challenged the way the Board can conduct business. The PEER letter says the General Manager acted improperly by this discipline- yet the discipline is in response to Scott Terrell's activities: use of PUD equipment, emails, partici- pated in action regarding legal. The primary issue was Mr. Terrell's (acting in the capacity of a PUD employee) active effort to kill the District participation in the coal contract. In essence, Mr. Terrell was saying he knew best- not the board. It is the right of the Board to set policy. He was working from home and being paid as a District employee. Mr. Gross read Scott Terrell's email to Tom Wagner/ Sierra Club regarding legal action. He distributed a copy of the Garcetti case regarding free speech and discipline. The case states that when an employee makes a statement to official duty- this is not protected under the first amendment. Director Sutton said the Board did not request Peter Holzmeister to bring suspension to Scott Terrell. They only received the letter stating the suspension. Counsel Gross responded that the General Manager is to enforce District Code which includes the procedure for discipline. The Board did not need to give direction. Peter Holzmeister made the following statements: • Mr. Terrell's job duties at the District involve conservation. • At their first meeting in November, Mr. Holzmeister told Mr. Terrell that he could comment, but not in a way that causes problems. • Mr. Terrell was working behind the scene to undermine Steve Hollabaugh's presentation to the Board. • A second meeting with Mr. Terrell regarded the lawsuit and the statement was made "I know how to get my way and how to get fired". • Mr. Holzmeister emphasized that Board decisions are the General Managers marching orders and the employees are his representatives. He cannot let insubordination prevail. • Mr. Holzmeister said he worked with Steve Hollabaugh for weeks to keep him from being depressed. Mr. Hollabaugh tried to work out a change in position to include green power and accommodate public statements. But Scott's involvement caused a problem in the district. There should not have been meetings before the scene- a more upfront attitude would have been better. • The District code for discipline does not say the steps must be followed exactly. Director Thomason asked about the Mr. Terrell's emails and coordinating meetings. Mr. Terrell said he tried to communicate with Peter and got no response. He finally had a meeting with Peter on November 22, 2006. 2 Minutes: Jan. 30, 2007-Skelly Hearing Director Thomason asked why there was office uproar. Mr. Holzmeister said employees were asking why Mr. Terrell was still working at the PUD-they were in disbelief what was going on. Director Sutton asked who approached Peter with criticism of Scott. Mr. Holzmeister said remarks were from management and consultants. Staff attention became very diverted from all the news articles and news media. Director Sutton remarked about the treatment of the power supply engineer and how the public uproar would not even listen to a compromise. Director Aguera said he went to a group meeting where people wanted to talk about the contract. It was evident to him they knew that if the District passed the contract and legal action was taken, UAMPS may pull out. The group told Director Aguera that if he had any questions, he should call Scott Terrell, which made him think that Scott was feeding the crowd. Director Aguera referred to emails Mr. Terrell said about being "let go" or fired. Director Aguera asked Scott Terrell why he had not come before the board previously about conservation and energy issues. Mr. Terrell said it was Mr. Holzmeister's decision. Brett Collinson's remarks: • There is no proof that Scott Terrell started the problem. • There is no allegation of violation. Mr. Terrell was only following Mr. Holzmeister's orders. Public Comment: • Robert Johnston said the "Green Team" got MAPF to investigate a lawsuit. He said Scott Terrell never consulted MAPF about a lawsuit. • Neal Mock said he was the one who communicated with Tim Wagner of Sierra Club as the IPP plants are in Utah and affect Tim Wagner who lives there. Sierra Club filed against the air resources board- not IPP. Scott Terrell said it is his constitutional right to oppose. He should have known better that his job was at stake. He met with Peter in mid January 2007 and would like to move on with a new approach. He admits Peter has a right to discipline. Director Sutton questioned Counsel Brown. Now that everything is fully aired, would it be in the proper realm to request the General Manager and Mr. Terrell meet and come up with a proposal and agree on a solution that is fair and equitable to management and employee? Counsel Brown said the op- tions are to sustain (uphold), amend (reduce) or throw out. Director Sutton suggested having the parties work things out- a compromise so they may get a better working relationship in the future. Counsel Brown said that meeting to come up with a compromise is not prohibited. Counsel Brown went on to say that for a vote, two of three in the panel must agree. Normally discussion is done in closed session, but the panel can certainly deliberate in public. Mr. Holzmeister responded that Scott Terrell stated he has a great interest in and believes firmly in his position at the PUD. Mr. Holzmeister went on to say the General Manager works for the Board of Directors and gets orders from them. He feels he can have open discussions among staff and get business done. But he comes to the Board for decisions. Scott Terrell feels the two week suspension is too aggressive. He feels maybe there is no compro- mise. Mr. Terrell felt he had knowledge for the community — he even tried to set up a meeting with ... Steve Hollabaugh and Peter Holzmeister. As a discipline, he would take a letter in his file. Mr. Terrell added that he is not a member of MAPF. 3 Minutes: Jan. 30, 2007-Skelly Hearing Brett Collinson said he understands that the Board sets policy or marching orders. But a policy had not been set or gone into the coal contract. He disagrees that Mr. Terrell should have a disciplinary action. There is a freedom of speech and freedom of association. Counsel Gross said there is common ground for some discipline even though Mr. Terrell was passionate regarding his position. He participated in a group to cause a mutiny against the Board. Director Sutton said there was no unequivocal evidence that Scott Terrell participated in or thwarted District action. There has been a lot of verbal commenting and interpretation. The panel decided to have their discussion in open session and take a poll as to how each director felt about each charge: No. 1 and 3 regarding insubordination and No. 2 treatment of a fellow employee. 1. While acting in the capacity of your employment duties you participated in an effort to bring legal action against the District's Board of Directors with the goal of negating a decision that they might make that was contrary to your preferred decision. Attached is a copy of an e-mail you sent using the District computer during work hours to Tim Wagner on November 22, 2006 asking for his assistance is taking legal action against the District. This action was irresponsi- ble and is grossly insubordinate. As stated above, your role at the District is not to set policy regarding conservation and renewable power sources. You certainly should comment on these issues but not attempt to thwart the Board's legitimate role in setting policy regarding power supply. Board comments: ., • Director Aguera: Mr. Terrell had some say to the group. They were going on his exper- tise and job-they relied on him. He helped to set up litigation. Director Thomason: Two points suggest insubordinate. It is hard to connect the dots as to his part in the lawsuit if the Board approved the contract. I never felt threatened by the lawsuit. • Director Sutton: It was not established that Scott Terrell acted in this manner- not in- subordination. 2. While acting in the capacity of your employment duties you commented in a manner that served to undermine the effectiveness and efficiency of the District's Power Supply Engineer. Your comments impeded the Power Supply Engineer's efforts to present and reach an efficient compromise over power supply contracts. The Power Supply Engineer and you are members of the District's professional staff and as such you should have been more open and extended more courtesy to a fellow professional colleague. Your comments distracted co-workers from the issue at hand and created severe office uproar. This behavior was irresponsible and reflects inappropriate treatment of the District's Power Supply Engineer Board comments: • Director Aguera: Mr. Terrell out-stepped his duties- -he is not a power engineer • Director Thomason: Mr. Terrell said he is willing to take disciplinary action with a writ- ten report • Director Sutton: District Code states inappropriate treatment of public or other employ- ees. There was no inappropriate treatment- the code is too broadly written. Disagree- ment with fact and content- Mr. Terrell was not inappropriate 3. When I met with you and discussed my concerns with you over these matters you said to me, and I quote "I know how to get my way". This statement violates the fundamental employment 4 Minutes: Jan. 30, 2007-Skelly Hearing arrangement that you have with the District that requires you to carry out the policies and decisions of the Board of Directors under the supervision of the General Manager. Your state- ment that you know how to get your way is grossly insubordinate. Board comments: • Director Aguera: Believes Mr. Terrell made the statement to Peter Holzmeister • Director Thomason: Someone is lying- there is no oath or lie detector. Can't support in- subordination. • Director Sutton: Have known Mr. Terrell for years. The comment is out of character. There is no reason to doubt Peter Holzmeister heard something. Scott was defending himself-even that statement could be insubordinate. Director Thomason moved and Director Sutton seconded, a motion to discharge the discipline and dismiss the charges. ROLL CALL: Director Aguera, no; Director Sutton, yes; Director Thomason, yes. SO MOVED. Director Sutton asked Counsel Richard Brown to prepare the proper hearing record to place with the minutes and in Mr. Terrell's file. CLOSED SESSION CLOSED SESSION UNDER GOVT. CODE 54957 PUBLIC EMPLOYEE DISCIPLINE TO FOLLOW PRESENTATION OF EVIDENCE IN OPEN SESSION. The panel elected to have their discussion in open session. ADJOURNMENT There being no further business before the Board, the meeting was adjourned at 5:07 PM. TRUCKEE DONNER PUBLIC UTILITY DISTRICT GGf-- Patricia Sutton, airperson Prepared by Barbara Cahill, Deputy District Clerk bhc 5 Minutes: Jan. 30, 2007-Skelly Hearing