Suffolk doesn't follow panel's decisions
on fired employees
By DAVE FORSTER, The Virginian-Pilot
© October 6, 2007
Rick Joyner was elated by the news.
After three days of testimony, a grievance panel decided the police had wrongly fired him for an off-duty incident. The panel ordered the city to reinstate him, with back pay.
Joyner, a retired Air Force veteran who saw police work as another way to serve, was about to be an officer again.
"I went about my business, waiting to be re hired," Joyner said. "But it never happened."
Joyner, 46, is among a growing number of former Suffolk city employees who have won grievance cases, only to have the city challenge and refuse to follow the orders.
In researching five recent cases - including four in which employees were fired - The Virginian-Pilot found that their punishments have stood despite favorable rulings from the city-approved grievance panel.
Last month, the city reiterated its position in the most recent case, in which former police O fficer David Jenkins was accused of taking a city check for $4,687. A grievance panel voted 2-1 that Jenkins was negligent in handling the check but did not make an unauthorized use of city funds. It ordered that Jenkins be suspended without pay for six months, but not fired.
The city challenged the panel's order and has not re hired Jenkins.
Critics say Suffolk is unique in this practice, that no other municipality in the state repeatedly rejects decisions by grievance panels.
"In the city of Suffolk, the grievance procedure is worthless," said Michael Imprevento, a Norfolk attorney who represents area police unions.
Imprevento said he has handled grievances in most Hampton Roads cities, and Suffolk is the only one that has not honored a grievance decision that favored one of his clients.
The city officials behind the challenges - City Attorney Ed Roettger Jr. and Human Resources Director Yvonne Manning - would not discuss their handling of employee matters. Their challenges, outlined in court documents in four of the cases, rest in part on the contention that the panel decisions violate city policy and therefore need not be followed.
The city of Suffolk does not track grievance cases and could not quickly research the number of cases it has had in recent years, said Dennis Craff, a city spokesman.
In response to a Freedom of Information Act request by The Pilot, the city estimated it would require about 60 hours of research - at a fee of $840 - to determine the number of grievance cases filed in the city since 2002 and the number of times the city has challenged a panel decision. The Pilot did not agree to pay the fee.
The grievance process is required by law. State code requires localities with more than 15 workers to provide a procedure that offers "an immediate and fair method for the resolution of disputes" between employer and employee. If the dispute is not resolved, it heads to a hearing panel, which reviews evidence from both sides and hears testimony. It can rule that city acted appropriately.
The panel is composed of one member chosen by the city and one by the employee. The third member, the hearing officer, is a licensed attorney approved by the Supreme Court of Virginia to lead the panel's work and make sure it follows the law.
The state law, as well as Suffolk's municipal code, says the decision of the grievance panel is final and binding if consistent with law or policy.
The challenges in Suffolk follow a similar pattern. The city argues that the employee's supervisors have already determined that the worker violated a policy. To rehire the employee as the panel requests would be inconsistent with the policy that forbids the behavior punished in the first place. The grievance panel, the city argues, has overstepped its authority.
Charles Smith, an attorney who represents government workers for a union in Northern Virginia, said Suffolk is applying the "consistency with policy" language incorrectly.
Smith handles cases for Council 30 of the American Federation of State, County and Municipal Employees. In his experience, he said, it is "very, very rare" for a municipality to challenge a panel hearing.
It's rare across Hampton Roads too, according to local attorneys, human resource officials and others familiar with the process.
Officials in Chesapeake and Virginia Beach couldn't recall the last time they refused to follow a panel decision.
In Portsmouth, "it is absolutely very rare for them not to follow it to a T," said Lt. D.K. Butler, president of the city's Fraternal Order of Police. Butler noted one recent case that Portsmouth challenged on the argument that the complaint - over a promotion - did not qualify for the grievance process.
In Norfolk, attorney Andrew Sacks estimated he has represented city employees in more than 75 grievance cases in the past 13 years. He recalled one instance in which the city refused to follow a panel decision. Norfolk relented when a circuit judge ordered the city to reinstate the police officer.
"The city of Norfolk has, by and large, respected the panel decisions even if they don't agree with them," Sacks said.
Frederic Firestone, a former administrative law judge who serves as a grievance hearing officer, has sat on about 20 panels in Newport News, Portsmouth and Virginia Beach. Never has he had a city refuse to follow a panel's order, he said.
Last month the grievance panel in Jenkins' case reviewed its ruling at Manning's request. It came to the same conclusion: a 2-1 vote that the police officer of 11 years should have been suspended, not fired.
The city attorney's office responded to Jenkins' attorney with a letter on Sept. 17. It said the panel had failed to address the city's concerns.
"It is beyond shameful," said Sonny Stallings, Jenkins' lawyer. "They should be ashamed and embarrassed to treat any city employee this way."
Earlier this year, the city challenged a panel decision that carried no financial burden for the city: Remove a written reprimand from an employee's file.
The employee, who has since been fired and asked not to be named, worked in the city attorney's office. One of her former co-workers, Lisa Williams, said Manning ruled that the panel's decision violated city policy, and they would not remove the reprimand from the worker's file.
The city paid a private attorney at least $7,000 to handle the challenge, according to financial records obtained under the Freedom of Information Act.
"If it's not a decision favorable to the city, they will not implement it," said Williams, who testified in support of the co-worker at the grievance hearing.
Williams has since been fired. She has filed a complaint with the U.S. Equal Employment Opportunity Commission, alleging that her termination was in retaliation for her support of the co-worker.
In 2004, Manning wrote to the hearing panel chairman in the case of Darlene Wilkerson, a 25-year employee who had been fired after an investigation into the cash-handling practices of several public utilities workers. The panel, led by Alfred Bernard III, a private attorney who has since died, had voted unanimously to reinstate Wilkerson with back pay for seven of the eight months she had missed.
Manning called the decision "irreconcilably inconsistent" with at least one city policy: the prohibition of unauthorized use of city property. She directed the panel to revise its decision to conform to city policy.
The request prompted a scathing response from Bernard, who said he could not in good conscience comply.
"In effect, the City of Suffolk is trying, through your office, to overturn the Panel's unanimous decision on the basis of incorrect legal conclusions," Bernard wrote to Manning.
He called the city's assertion - that the panel's finding was contrary to city policy - "nonsensical as it would make the grievance process meaningless."
"Moreover," he continued, "to comply with your request would gut the grievance process in the City of Suffolk of any semblance of the fairness and equitable treatment it promises employees."
Wilkerson's attorney, Jack Eure, tried to force the city to follow the panel decision by taking the matter to circuit court. Judge Rodham T. Delk Jr. ruled he had no jurisdiction to review Manning's determination that the panel decision was inconsistent with city policy.
Eure appealed to the Supreme Court of Virginia, but a panel there found no basis for overturning Delk's decision. Other attorneys have made similar attempts to force Suffolk to follow panel decisions; each has failed.
With no help from the courts, Eure and Imprevento said their only other hope lies with General Assembly. Imprevento said he plans to push legislators to introduce an amendment this year that would give judges a clear right to review such decisions by cities.
Meanwhile, Joyner and Jenkins are still trying to get their jobs back. Each has a case pending in circuit court. Joyner's termination centered on an altercation at a Virginia Beach carnival when a man grabbed a $20 bill dropped by Joyner's 6-year-old son.
Wilkerson has moved on. Her husband died in a car wreck while she was challenging the city's refusal to rehire her, leaving her to support two children alone. She has since found a job with the City of Franklin but still feels wronged by her treatment in Suffolk.
"What's the reason of having a grievance procedure policy if you're not going to follow it?" she asked.
Dave Forster, (757) 222-5563, firstname.lastname@example.org.