Posted on 31 August 2012.
Personnel Appeals Board hearing lasts one day
In Mono County, it seems, actions do not speak louder than words.
In the latest outcome of a Personnel Appeals Board hearing regarding a physical altercation in the workplace on Oct. 3, 2011, the PAB determined that Brett McCurry, one of the men involved in the altercation, should be reinstated as a County employee.
McCurry’s hearing was held in private on Aug. 24. His Board was comprised of Mono County Finance Director Brian Muir, Solid Waste Supervisor Tom Music, and Road District 2 Supervisor Harry Bryan.
Music and Bryan worked with McCurry in the Public Works Department and there has been some criticism regarding their placement on the PAB. Some people felt they were too good of friends with McCurry to fairly determine his fate.
The proceedings took several hours to about a day, depending on whom you talk to. McCurry went back to work on Aug. 27. He will receive back pay for the time he was away, minus a 30-day suspension period.
The other man involved in the altercation last year was Dick Luman, the former employee who chose to have his PAB hearing held publicly. His hearing went on for several months and it was ultimately decided that his termination should be upheld. His PAB panel, comprised of Mono County Undersheriff Ralph Obenberger, Mono County Supervisor Tim Hansen and Ken Goode, was also criticized for friendships and connections.
It is left up to the employee to determine whether or not his PAB hearing is held publicly or privately.
Since Luman’s hearing was public, the final report of how the Board came to its decision was also made public. The report stated that the Board had hinged its 2-1 decision to uphold Luman’s termination on something Luman said prior to the physical altercation.
Luman made a statement that if McCurry ever called him a motherf**ker to his face, he’d find himself falling down his stairs again. While he repeatedly professed during his hearing that the statement had been meant as a joke, two members of the PAB felt that the statement was a threat.
“Mr. Luman’s explanation of this statement’s meaning, or his intent in making it, is not found to be credible,” the final report stated. “The statement was made in the midst of an extremely heated and volatile discussion in a very small physical space, where voices were raised, and tempers were extremely hot. In light of the intense and heated nature of the scene in which the statement was made, as indicated by all testimony, it is not logical to believe that such a comment was intended (or could be interpreted) as a wisecrack as claimed by Mr. Luman. Mr. Luman’s statement provoked and further inflamed Mr. McCurry, who was already outraged at the time. It added fuel to the fire and contributed to the chain of events resulting in the physical altercation between Mr. McCurry and Mr. Luman.”
The Board, however, did not feel it had been proven that Luman had engaged in mutual combat. Its decision, however, that what Luman said was a threat, was enough to uphold Luman’s termination in light of the zero workplace violence policy, which includes direct and indirect threats of violence.
Mono County CAO Jim Arkens has stated previously that in his determination to fire both men, he concluded that it was this “threat” that sparked the whole thing.
Since McCurry’s hearing was held in private, a public report of how the Board came to its decision to reinstate him in his former position as County Road Operations Supervisor will not be available, according to Assistant County Counsel Stacey Simon, who served as counsel to both the PAB for Luman and the PAB for McCurry.
“There will be no way [for the public] to determine how the Board came to its decision,” Simon explained. “The employee has a right to confidentiality.”
Luman’s lawyer, Katie Bellomo, called McCurry’s hearing a sham.
“Brett was fired for the same reasons as Dick [workplace violence/mutual combat], so they would have to have found Brett was either the victim, or, if he was the aggressor, he only deserved to be punished with a 30 day suspension,” Bellomo said. “Dick wasn’t found to have engaged in mutual combat, so Brett had to be the aggressor. Something did happen; Dick didn’t hurt himself.”
Both Luman and McCurry were reportedly injured in during the altercation.
Bellomo believes that the county did not want McCurry to be fired.
“He was doing what they wanted … kicking a** and taking names,” she said, referring to McCurry’s sometimes harsh efforts to get employees in the roads department on task.
“They didn’t bring in any eyewitnesses except Jerry Vande Brake [to McCurry’s hearing], who changed his testimony,” she added. “If they didn’t think they needed the witnesses because they could listen to the recordings from Luman’s hearing it would have taken them days to get through the recordings. If they listened to anything it would have been selected excerpts.
“The only other explanation [other than the County not wanting McCurry fired] is complete incompetence of the county attorney,” Bellomo said. “If you wanted to win, you would bring in witnesses.”
Bellomo, however, does not think it was incompetence on counsel’s part, but direction from Arkens to not bring in any witnesses.
“The inequity is obvious,” she added.
Arkens, however, pointed out that he had made the original decision to fire both Luman and McCurry.
“The Personnel Appeals Board overturned my decision,” he said of the choice to reinstate McCurry. He claimed there was nothing he could do about it. The only course of action the County could take would be to appeal the PAB’s decision. Arkens said the County was looking into this.
Bellomo believed that if it wanted to, the Board of Supervisors could choose to rehire Luman for purposes of equity.
“They wouldn’t be saying that the PAB [for Luman] was wrong, just that it had been decided that the appropriate penalty for what happened is a 30 day suspension,” she said.
On Tuesday, Dick Luman told The Sheet he was “irate” at the decision to reinstate McCurry.
“I told you this was going to happen,” he said, referring to his statements in a previous report from The Sheet.
“Luman expected that Brett McCurry’s hearing (which is currently being scheduled) would only last a few days and that McCurry would be put back to work.” –The Sheet, Luman Loses, June 30, 2012.
“The deck was stacked against me,” he added on Tuesday.
A call to McCurry had not been returned at press time.
Amid all of this back and forth lie the remaining employees in the County Roads Department.
Throughout the Luman PAB hearing, several employees testified that McCurry was a bully in the workplace whose foul language was offensive. There was talk throughout the hearing of meetings that had been held with Jerry Vande Brake to discuss McCurry’s behavior. Employees were allegedly told to follow the chain of command and report issues to Vande Brake who was then supposed to take the complaints up the line.
On Monday, however, Arkens said there were never any formal complaints made against McCurry. No one said much except Luman and Kerby during the trial, Arkens said.
Bellomo begged to differ, “What does that mean? That they didn’t fill out a form?”
Even Luman’s PAB said the County should have acted sooner to address McCurry’s inappropriate conduct in the workplace which may have stopped the altercation from happening.
The Sheet was unable to find any employees to go on the record because many fear reprisal for speaking out. Sources, however, told us that there were some employees that did not show up on Monday when McCurry returned to work. Others told their superiors that they would no longer be comfortable remaining at their desks if they were left alone with McCurry.
Individual and group anger management sessions, just for the Road Department, were allegedly held on Wednesday and the feeling among employees was that the County was spending a bunch of money on the sessions for the benefit of one person: McCurry.
Employees, however, are opposed to speaking out for fear of retribution. One employee said they didn’t want to complain and end up like Jim Kerby, who was also present during the physical altercation in 2011 and was accused of lying in his testimony and put on suspension. Kerby is expected to have a PAB hearing as well, but the dates have not yet been scheduled.
Fit to work?
Is McCurry fit to come back to work in his role as Road Operations Supervisor? Some say no because of his recent arrest on suspicion of DUI in Elko, Nev. McCurry was working in Nevada while away from his County employment.
Captain William Lehmann of the Elko Police Department confirmed that McCurry had been arrested on suspicion of DUI on March 29. While Lehmann wasn’t sure if the case had been adjudicated, he did say that McCurry had requested a blood test at the time of the incident.
“Requesting a blood test stops the immediate revocation of the suspicious party’s license,” Lehmann said. Since McCurry was not a Nevada state driver, this also put a stop to an immediate revocation of his license.
However, Lehmann said that the blood test results had come back on April 20.
“I can tell you, he was more than twice over the legal limit,” he said.
If the case had been adjudicated by the City Attorney and McCurry was found guilty of a DUI, his driving privileges would be revoked in Nevada. For a first offense, licenses are revoked for 90 days, according to Lehmann.
“Notification is sent to the DMV in Nevada and they send a notice of revocation to the person,” Lehmann explained. “The Nevada DMV would also send notice to the California DMV, which should also revoke the person’s license. However, I’ve been told that the California DMV is about a year behind on things.”
Revocation of a license can also apply to a Commercial Drivers License required to drive equipment such as snowplows. According to the County’s job description for Road Operations Supervisor, “Possession of, or ability to obtain, an appropriate valid California Driver’s license, including the appropriate class required to perform the majority of regular job assignments,” is a special requirement for the position.
According to Assistant Public Works Director Jeff Walters, McCurry holds a CDL. However, as a supervisor, not having that license would not greatly affect his job responsibilities.
“As a supervisors, he’s not really driving much,” Walters explained. “He’s just overseeing and managing. The supervisors have them for ‘all hands on deck’ situations. They might just need to do it in significant storms.”
Walters did acknowledge that the job description for Road Operations Supervisor did require the employee to have the ability to get a CDL.
“If a CDL is revoked for DUI, you may never see one again,” Captain Lehmann said. “Getting a commercial license is like receiving a brick of gold.”