OAH
2-6034-20725-2
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE CITY OF
|
Rachelle
Rudowski, Petitioner, vs. City
of Respondent. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above entitled matter came on for hearing before
Administrative Law Judge Raymond R. Krause on August 19, 2009 at
Rachelle Rudowski appeared on her own behalf (Petitioner). Lisa C. Netzer, Associate City Attorney, appeared
on behalf of the City of
STATEMENT OF ISSUES
Whether the City has shown
cause for termination of Ms. Rudowski as a City of
Based upon all of the proceedings herein, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Ms. Rudowski is an honorably discharged veteran.[2]
2.
The City is a political subdivision of the State of
3.
On June 2, 2009, Ms. Rudowski was given the option of
resigning from the Bloomington Police Department, which hired her as a
dispatcher on January 12, 2009, or termination of her employment would be recommended
to the Chief of Police.[3]
4.
On June 10, 2009, the City notified Ms. Rudowski in writing
of the right to request a hearing within sixty (60) days pursuant to the
Veterans Preference Act[4] and Bloomington Employment
Rules Section 18.4(a).[5]
5.
On July 24, 2009, Ms. Rudowski notified the City in writing
that she was requesting a Veteran’s Preference Hearing and stated that she “did
not voluntarily resign.”[6]
6.
On August 7, 2009, the City served a Notice and Order for
Hearing on Ms. Rudowski in this matter and this contested case proceeding
ensued.[7]
7.
Ms. Rudowski was hired on January 12, 2009, as a dispatcher
with the Bloomington Police Department. Prior
to her employment with the City, Ms. Rudowski had nine years of previous
work experience as a police dispatcher with the Cities of Hopkins and
8.
The Cities of Hopkins and
9.
The typical course of training for a Bloomington Police
Department dispatch trainee begins with training on the Computerized Aided
Dispatch (CAD) system for approximately a week to ten days, working one on one
with the CAD trainer.[10]
10.
The CAD system is used by dispatchers to enter 911 call data
into a computer that sends the information directly to the responding squad
computer so officers can see the call information while responding to the call.[11]
11.
After initial CAD training, the trainee will sit at a
dispatch console with an experienced dispatch trainer and begin actual call
management during a typical shift. Initially,
the trainer assumes most of the call responsibility which is gradually shifted
to the trainee. During this period, a
trainee will work with several different dispatch trainers.[12]
12.
During dispatch training, the Certified Training Officer
(CTO) assigned to a dispatch trainee will fill out a Daily Observation Report
(DOR) that evaluates sixteen competency areas required for successful
performance of dispatch duties. Each
competency has a rating scale with specific performance standards keyed to each
topic area with a comment section for each area. The rating scale is: 1 = Not Acceptable, 3 =
Acceptable, 5 = Exceptional. The DOR is
reviewed and signed by the trainee, the CTO and the Dispatch Supervisor.[13]
13.
The sixteen areas evaluated on the DOR are as follows:
Acceptance of Feedback; Attitudes Towards Communication Work; CAD Skills –
Normal Conditions; CAD Skills – Moderate and High Stress Conditions; Computer
Data Systems; Telephone Skills – Normal Conditions; Telephone Skills – Moderate
and High Stress Conditions; Problem Solving/Decision Making; Radio – Use of
Procedures; Radio – Comprehension; Clarity of Communication; Multitasking and
Room Awareness; Knowledge of Department Policies and Procedures; Knowledge of
Call Prioritization Procedures; Geography/Map Interpretation; and General
Appearance. [14]
14.
The training protocol requires that the trainee complete a
certain set of tasks with increasing degree of complexity as part of their
console training. Trainees progress
through the training period according to their ability to assimilate the
training content and their ability to manage the dispatch consul operations.[15]
15.
Early in Ms. Rudowski’s training, CTOs approached Kevin Hinrichs,
Commander of Bloomington Police Department Support Services Division which
includes the
16.
During training, Ms. Rudowski began to exhibit consistent
deficiencies in specific competency areas in using the CAD system, learning the
local geography, remaining focused when the call volume went up in the call
center, issuing clear radio communications, mixing up information on medical
calls, and prioritization of calls.[17]
17.
Proper and effective use of the CAD system is critical to dispatching.
Ms. Rudowski had trouble entering the correct codes into the CAD system and
would go back and re-enter prior CAD entries causing confusion for officers in
the field. Ms. Rudowski had trouble
locating and assigning squad cars using the CAD system. This resulted in the wrong squad cars
responding to calls, being on break, or being on duty.[18]
18.
Ms. Rudowski had continuing trouble learning the geography
of the City of
19.
Ms. Rudowski had trouble maintaining composure when the call
volume increased. Ms. Rudowski became
flustered and her skills deteriorated under pressure.[20]
20.
Ms. Rudowski consistently had trouble with her radio
skills. She was soft spoken and difficult
to understand over the radio. She
consistently had trouble understanding the officers’ radio transmissions. Ms. Rudowski lacked confidence in what she
was saying and what information she was giving out and would broadcast wrong or
incomplete information. When Ms.
Rudowski became busy her tension was reflected in her voice creating an air of
uncertainty for the callers and officers in the field. Police officers raised concern about Ms.
Rudowski’s call information and voice.[21]
21.
Managing medical calls was a continuing problem for Ms.
Rudowski. Ms. Rudowski gave
misinformation to responding ambulance services by assigning the wrong priority
to medical calls or sending Emergency Medical Technicians (EMTs) misinformation
on how to respond to a call.[22]
22.
Ms. Rudowski had trouble prioritizing calls appropriately
and would spend more time working on calls that were administrative in nature
leaving more urgent, possibly life-threatening calls on hold.[23]
23.
Based on evaluations from training officers over time, a typical
training period for Bloomington City police dispatch is generally between ten
and twelve weeks. After which time, a
dispatch trainee is ready to be put out on final evaluation. Final evaluation consists of a shift alone at
the dispatch console with the dispatch trainee completely responsible for
intake, management and response.[24]
24.
A dispatch trainee is not put out on final evaluation unless
there is a consensus among training officers and dispatch supervisors that the
trainee is ready for that responsibility. An employee hired in mid-January as a
dispatcher would typically be ready for their final evaluation at the end of
March. There was consensus among
dispatch supervisors and training officers that Ms. Rudowski was not ready for
her final evaluation at the end of March.[25]
25.
In April, Ms. Rudowski was provided remedial CAD training,
again one on one with the CAD trainer. Ms.
Rudowski was also provided a dispatch manual with call codes, descriptions of
types of calls, suggested questions to ask and information to give and the
number of squads to send.[26]
26.
Ms. Rudowski was given time to study on the job. Trainers developed quizzes on local geography
for Ms. Rudowski which she repeatedly failed.
Ms. Rudowski went on ride alongs with field officers to familiarize
herself with the local landmarks and geography and to get a feel for what the
officers hear and see.[27]
27.
During her tenure with Bloomington Police Department, Commander
Hinrichs assigned five different dispatch trainers to Ms. Rudowski and met several
times with the training officers to devise different training techniques to
focus on Ms. Rudowski’s deficiencies.[28]
28.
CTOs, supervisors and field officers continued to complain
about Ms. Rudowski’s dispatching capabilities. The extended training was beginning to strain
the dispatch center. Staffing two
dispatchers: Ms. Rudowski and a trainer, was costly and caused shift assignment
issues.[29]
29.
Two weeks before Ms. Rudowski’s employment with the City
ended, trainers were still identifying serious concerns regarding her ability
to function in the dispatch center effectively with less than two dispatchers
in the room. Ms. Rudowski failed to show
progress in many of the areas identified on the DORs during her twenty weeks of
employment with the City.[30]
30.
On June 1, 2009, Commander Hinrichs met with Sergeant Schwiesow
and all the training officers that had worked with Ms. Rudowski to discuss her
lack of progress, and to consider whether there were any other ideas to remedy
Ms. Rudowski’s deficiencies. At this
meeting, trainers were out of ideas and frustrated that Ms. Rudowski’s training
had gone on for twenty weeks without significant improvement.[31]
31.
Commander Hinrichs met with Ms. Rudowski on June 2, 2009,
and advised her that he would be sending Chief Potts a written recommendation
to terminate her employment as a Bloomington City Police Dispatcher and that
until Chief Potts signs off on his recommendation, Commander Hinrichs would
accept a letter of resignation. Ms.
Rudowski was advised to go home and think about it, but she made a telephone
call in Commander Hinrichs’ office and used his computer to type her
resignation letter.[32]
CONCLUSIONS
1.
Ms. Rudowski is
an honorably discharged “veteran” within the meaning of the Veterans Preference
Act[33] and is entitled to all of the Act’s protections and
benefits.
2.
The City is a
political subdivision of the state within the meaning of the Veterans
Preference Act,[34] and its personnel practices are therefore subject to
the Act’s provisions.
3.
Pursuant to Minn. Stat. §§ 14.55 and 197.481, the
Administrative Law Judge and the City of Bloomington Merit Board have the
authority to determine if Ms. Rudowski’s
employment termination was consistent with mandates of the Veterans Preference
Act.
4.
The City of
5.
The City gave Ms. Rudowski proper and timely notice of the
hearing in this matter.
6.
The Veterans Preference Act[35] requires that a veteran be
given notice of his or her right to a hearing to establish incompetency or
misconduct prior to any action by a public employer that removes the veteran
from his or her position.
7.
The City gave Ms. Rudowski proper notification of her right
under the Veteran’s Preference Act to a hearing to establish incompetency or
misconduct as grounds for removing her from her position prior to the hearing
in this matter.
8.
Ms. Rudowski requested the hearing to which she was entitled
within the time prescribed by law and therefore did not waive her right to a
hearing.
9.
In an administrative proceeding, such as this,
[t]he party
proposing that certain action be taken must prove the facts at issue by a
preponderance of the evidence, unless the substantive law provides a different
burden or standard. A party asserting an
affirmative defense shall have the burden of proving the existence of the
defense shall have the burden of proving the existence of the defense by a
preponderance of the evidence.[36]
10. The Veterans Preference Act [37] provides in part:
No person
holding a position by appointment or employment in the several counties,
cities, towns, school districts and all other political subdivisions in the
state, who is a veteran separated from the military service under honorable
conditions, shall be removed from such position or employment except for
incompetency or misconduct shown after a hearing, upon due notice, upon stated
charges, in writing.
10.
The City has the burden of proving by a preponderance of the
evidence that removal of Ms. Rudowski from her City employment is based on her
incompetency or misconduct.
11.
Ms. Rudowski asserts as an affirmative defense to the charge
of incompetence that the Bloomington Police dispatch training was unorganized
and could have been more helpful to her success.
12.
The Administrative Law Judge adopts as Conclusions any
Findings that are more appropriately described as Conclusions.
13.
The Memorandum that follows explains the reasons for these
Conclusions, and the Administrative Law Judge therefore incorporates that
Memorandum into these Conclusions.
Based
upon the foregoing Conclusions, the Administrative Law Judge makes the
following:
RECOMMENDATION
IT IS
RECOMMENDED THAT:
The decision
of the City of
Dated: September 17, 2009
s/Raymond R. Krause
|
RAYMOND
R. KRAUSE Administrative
Law Judge |
Reported: Digitally Recorded
NOTICES
This Report is a recommendation, not a final
decision. The Bloomington Merit Board
will make a final decision after a review of the record. The Merit Board may adopt, reject, or modify
these Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision
of the Merit Board shall not be made until this Report has been made available
to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party
adversely affected by this Report to file exceptions and present argument to
the City. Parties should contact Kent T. Michaelson,
City of
Under
Minn. Stat. § 14.62, subd. 1, the City is required to serve its final decision on
each party and the Administrative Law Judge by first class mail or as otherwise
provided by law.
MEMORANDUM
The Minnesota Veterans Preference Act[38] provides that:
[n]o person holding a position by appointment or
employment in the several counties, cities, towns, school districts and all
other political subdivisions in the state, who is a veteran separated from the
military service under honorable conditions, shall be removed from such
position or employment except for
incompetency or misconduct shown after a hearing, upon due notice, upon
stated charges, in writing.
[Emphasis added.]
In Ekstedt
v. Village of New Hope,[39] the Minnesota Supreme Court further defined
incompetency or misconduct in the following way:
The
cause must be one which specially relates to and affects the administration of
the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the
public. The cause must be on touching the qualifications of the officer
or his performance of its duties, showing that he is not a fit or proper person
to hold the office. . . . In the absence of any statutory specification
the sufficiency of the cause should be determined with reference to the
character of the office, and the qualifications necessary to fill it.
(Emphasis
added.)
The City’s proposed discharge of Ms.
Rudowski for cause is based on its assertions that during Ms. Rudowski’s five
month employment as a police dispatcher, she was consistently deficient in six
critical dispatch competency areas. Namely, using the Computer Aided Dispatch
(CAD) system; understanding the city geography; performing under pressure;
radio communications; dispatching medical calls, and prioritization of calls.[40] Despite
remedial training efforts that extended well beyond a typical period for
dispatch training Ms. Rudowski did not improve.
Over 100 Daily Observation Reports (DORs) were
completed on Ms. Rudowski during the course of her employment with the
City of
The court in Ekstedt[43] determined that “cause” for discharge under the
Veterans’ Preference Act[44] must be substantial in nature and have a direct
affect on public rights or interests.
The ability to master the six dispatch
skill areas identified by the City goes to the core of police dispatch
work.
Throughout Ms. Rudowski’s training,
and up until June 2, 2009, she was still struggling to enter correct
information for responding officers into the CAD system. Commander Hinrichs testified that two squad
cars respond to each call. For example,
cars 1 and 2 would respond to a medical call and cars 3 and 4 would respond to
a domestic. Often, Ms. Rudowski would
enter the domestic information in the medical field and the medical information
in the domestic field causing confusion for the responding officers. When Ms. Rudowski would go back and correct
her entries, precious response time would be lost with officers waiting for the
information.
Ms. Rudowski had continuing trouble
learning the geography of the City of
As the call volume increased in the
dispatch center, Ms. Rudowski had trouble keeping her composure which resulted
in more mistakes and consequently, confusion in the field. Commander Hinrichs testified that if a
dispatcher cannot keep their composure under pressure, they start making
mistakes that have consequences. If a
dispatcher is unable to think and make timely decisions directing the right
people to the right places with the right resources, the reputation and service
of the unit suffers. Commander Hinrichs
testified that all of the training officers commented on Ms. Rudowski’s
inability to work under pressure. [45]
Radio communication skills were also a problem for Ms.
Rudowski. Many training and field
officers commented that she was difficult to understand over the radio and she
had trouble understanding the radio transmissions from the field officers. Ms. Rudowski lacked confidence in what
she was saying and when the call volume went up, others could hear the tension
in her voice creating an air of uncertainty for the callers and officers in the
field.
The work of a police dispatcher has a
direct affect on the public. Commander Hinrichs
testified that the
Prior to her employment with the
Bloomington City Police, Ms. Rudowski had nine years previous police dispatch
experience with the Cities of Minnetonka and Hopkins.[48] The
Further the City asserts that at the
end of what would be a normal training period of between ten to twelve weeks
for police dispatchers, Ms. Rudowski was not competent to perform dispatch
duties without the assistance of a trainer and that Ms. Rudowski’s
dispatch capabilities did not improve during her employment despite numerous
remedial training efforts.[50]
Conclusion
For the reasons set forth above, the ALJ recommends that
the City of
R. R. K.
[1]
[2]Testimony of Rachelle Rudowski.
[3] Test. of Commander Kevin Hinrichs.
[4]
[5] Test. of R. Rudowski; Exhibit 23.
[6] Ex. 23.
[7] Test. of R. Rudowski.
[8]
[9] Test. of K. Hinrichs.
[10]
[11]
[12] Test. of K. Hinrichs.
[13] Exs. 2, 4, 7, 8, 9, and 11-22.
[14]
[15]
[16]
[17] Test. of K. Hinrichs; see generally Exs. 1-22.
[18] Test. of K. Hinrichs; Ex. 10.
[19] Exs. 3 and 6.
[20] Exs. 5, 15, and 18
[21] Test. of K. Hinrichs.
[22]
[23] Ex. 21.
[24] Test. of K. Hinrichs.
[25]
[26]
[27] Exs. 3, 6, and 11.
[28] Test. of K. Hinrichs.
[29]
[30] Exhibits 20, 21,22
[31] Test. of K. Hinrichs.
[32]
[33]
[34]
[35]
[36]
[37]
[38]
[39] 193 N.W.2d 821, 823 (
[40] Exs. 1-22.
[41] Test. of K. Hinrichs.
[42] Exs. 2, 4, 7-9, and 12-22.
[43] 193 N.W.2d 821 (
[44]
[45] Test. of K. Hinrichs.
[46]
[47]
[48] Test. of R. Rudowski.
[49] Test. of K. Hinrichs.
[50]