PAB member expresses concern at outcome of Luman hearing
Recently, the Mono County Personnel Appeals Board (PAB) voted 2-1 to uphold a determination by Mono County CAO Jim Arkens to terminate long-time County mechanic Dick Luman due to a workplace violence incident in October 2011.
In the final report that came out in the weeks following the decision, the PAB expressed that it had come to its conclusion based on one item: that Luman had threatened Brett McCurry, the fellow employee with whom he fought.
On Tuesday, Aug. 7 the County Board of Supervisors unanimously voted to also deny claims for damages submitted by Luman.
Recently, The Sheet chatted with PAB member and Mono County Supervisor Tim Hansen about the hearing. Hansen was the lone dissenting vote in the decision to uphold Luman’s termination.
Bottom line: Hansen does not believe that Luman needed to be terminated. He pointed to a change in personnel rules as the major culprit of the unfairness of the County’s actions.
“This [Luman hearing] was the first hearing under the new personnel rules,” Hansen explained. “There are a lot of inequities in the new rules.”
Hansen is of the opinion that the employees’ union for the Mono County Public Employees [MCPE] group, sold out the employee’s rights at the bargaining table last year.
“Under the old rules, an employee would have been accused, gone through the Skelly hearing, received a verdict and given the right to appealm, all while still being employed,” Hansen said.
Under the new rules, it’s fire first and ask questions later, according to Hansen. At the time the PAB hearing began, Luman had already been terminated for several months.
Hansen stated that at the time of Luman’s Skelly hearing, the question was raised regarding what set of rules the County should be using in the case, but it was never answered. The incident itself, took place prior to the new rules going into effect.
Mono County CAO Jim Arkens, however, stated that the union insisted that the new rules be used.
“The [new] personnel rules give the County more of a chance to prevail,” Hansen continued.
Another change in the new rules, according to Hansen is the way in which the third member of the personnel appeals board is chosen. In the past, the union chose a representative, the County chose one, and the third person was a qualified arbitrator, according to Hansen.
“This was dropped under the new personnel rules and the third member [Ken Goode] was chosen through a coin toss,” Hansen explained. The union won the coin toss and got to choose another PAB member.
“That might be okay to kick off a football game, but it’s not the way to determine someone’s future,” Hansen said.
The result was a PAB with little to no legal background, creating what some have dubbed a kangaroo court.
Hansen couldn’t agree more, but he does think that he was fair in his decision-making, even though he and his fellow PAB members were all questioned about conflicts of interest and impartiality at one point or another. The fact that County counsel was used to advise the Board has also been called into question.
“I felt I was fair,” Hansen said of his own personal actions. “I got just as pissed off at Katie [Bellomo, Luman’s attorney] as I did Johnny Vallejo [counsel representative for the County].” Hansen was criticized by some regarding his impartiality because he has been friends with Bellomo for many years. He is also friends with Luman, but claims that comes from living in a small town.
“I’m friends with everyone,” he said.
“Plus, I stood up for the County regarding the change of ruling,” he said, referring to the decision that was made halfway through the hearing to allow new evidence to be introduced, even though the Board had adamantly determine at the hearing’s outset that it would not be fair to allow any new information that was not provided at the Skelly hearing.
“This is going to go to a real judge and real court,” Hansen said. “And that judge is going to shake his head at the rule change.”
In Hansen’s opinion, the County’s upper management has the wrong idea of justice.
“County counsel, Jim Arkens and Rita Sherman are trying to protect the County from all liability,” Hansen said. “Why doesn’t the County defend the employees and treat them fairly? Luman had a bad name as an employee because he had filed several workers’ compensation claims in the past. The County wanted to get rid of the problem employee.
“Whether what Dick said on the day of the incident was a threat or not doesn’t provide the burden of proof that the County needed to show,” Hansen continued in reference to the one item that the PAB based its final decision upon.
Arkens, however, believed that the “threat sparked the whole thing.” He reminded The Sheet on Wednesday that he had testified during the hearing “the threat was enough for termination.” It was what Arkens had based his original decision upon.
“It was proved that Brett McCurry was a bully,” Hansen said. “Employees complained and nothing was done. I am concerned about the inequities in the personnel rules. It will put the County in trouble when this goes to court.”
In Hansen’s opinion, McCurry was doing what the County wanted him to do, which was to “kick a** and take names.”
“His promotion went to his head and he took it upon himself to try to bring the performance level up in that [mechanic] district,” Hansen said. “Before the promotion he was friends with a lot of these guys.”
After, however, Hansen stated that complaints about McCurry were ignored and employees were told not to go over their supervisor’s head.
Since the close of Luman’s hearing, Hansen claimed that County employee morale continues to go down.
“There’s a fear of impending doom,” he said. “Employees sit at their desks with their heads down.”
Arkens, however, was pleased with the outcome of the hearing, even though he too agreed that the proceedings were quite a “circus.”
“The panel did an excellent job and made the best decision based on facts,” Arkens said.
When asked whether or not he would be concerned if Luman takes his case to the next legal level, Arkens said no.
“Everything was ethical,” he said. “The County hasn’t done anything wrong. There was no perjury on my part or [that of] anyone I supervise. There are no conspiracies.”
Arkens stated that the McCurry hearing, which will be held in private, is still being scheduled, as is the hearing for Jim Kerby, who was also present at the time of the October incident.
The Sheet: Is it true that the County is considering giving McCurry a settlement?
Arkens: No, that’s not true. Neither the union nor the County has approached the other regarding a settlement. Besides, I don’t have the authority to work out a settlement over $25,000, and I don’t think the union or Mr. McCurry would settle for that type of number. It would have to go to an open Board session.