Minutes Civil Service 10 2 01CIVIL SERVICE COMMISSION
Date: Tuesday, October 2, 2001
Time: 2:00 p.m.
Place of Meeting: City Hall - Conference Room A
Present: Chairperson Merle Duehr, Commissioner Lores Kluesner; Commissioner Dick
Wertzberger
Also Present: Personnel Manager Randy Peck, Corporation Counsel Barry Lindahl,
Park Division Manager John Hail, Fire Chief Dan Brown, Fire Fighter Dan Waddick,
Dave Baker, Attomey Andrea Hoeschen, William Kelly, George Walz
Approve Minutes of September 7, 2001
Commissioner Wertzberger moved to approve the minutes of September 7,
2001. Seconded by Kluesner, passed unanimously.
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Foreman's Test- Add Kevin Grace and Mike Horsfall to Certified List
Commissioner Kluesner moved to add Kevin Grace and Mike Horsfall to the
certified list for the position of Foreman. Seconded by Wertzberger, passed
unanimously.
Certify List for Park Ranger
Commissioner Kluesner moved to certify the list of 21 individuals who had
passed both the written test and physical agility test for the position of Park
Ranger. Seconded by Wer[zberger, passed unanimously.
Communication of Dan Waddick, Firefighter - Complaint of Unfair Labor
Practices
Mr. Waddick read a prepared statement as to why he thought the City was
discriminating against him by denying sick leave he was entitled to for an off-the-
job injury. The Commission determined that they did not have jurisdiction in this
matter and advised Mr. Waddick to contact the Public Employment Relations
Board for assistance.
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Hearing on Appeal of William Kelly's Termination from the City of Dubuque
The hearing was called to order at 2:15 p.m. Chairperson Duehr swore in
witnesses William Kelly, Mary Maas, Jacque Schenke and Lois Schueller.
Attorney Andrea Hoeschen was present to defend Mr. Kelly. In her opening
statement, she stated that Mr. Kelly signed an agreement with the City following
the revocation of his commemial driver's license on October 10, 2000. One
condition of the agreement was "During the leave of absence without pay, you
(Mr. Kelly) would be subject to random alcohol and drug testing. If a test is
positive, your employment will be terminated." At issue, she stated, is that the
word "positive" was not defined. Mr. Kelly's reading of .02 on the saliva test and
.015 on the breathalyzer test were not positive according to federal regulations
or Iowa Department of Transportation standards.
Corporation Counsel Barry Lindahl responded in his opening statement that
federal regulations and IDOT standards ware not the issue. Mr. Kelly agreed to
the terms and conditions of the November 20, 2000 letter, which he signed of his
own free will on December 4, 2000. Mr. Kelly was given two different tests and
had a positive result on both.
Mr. Kelly testified that on July 18, 2001 he was contacted by Randy Peck and
told to report to the Tri-State Occupational Health facility for a random drug and
alcohol test. He stated that he has been tested approximately six to eight times
between the time he signed the agreement and the time of the July 18~ test and
had never had a problematic one. He said he had not had any alcoholic drinks
in the previous twenty-four hours, but was feeling sick and he then displayed the
various over-the-counter medications he had been taking. He was contacted by
Randy Peck approximately four days later and was told that he had failed the
random drug and alcohol test. In response to questioning, he stated he had
been arrested for OWl in early July and had been under house arrest for seven
days. He further answered that he was not aware of what the federal regulations
or IDOT standards were and did not know what these limits were when he
signed the agreement on December 4, 2001. He testified that when Mr. Peck
called him on July 18th, he did not tell him about the medications and, that in
addition to the medications he had written down on the release he had signed at
Tri-State, he called the next day to report additional medications he had taken.
Attorney Hoeschen called Mary Maas to testify. Ms. Maas stated she had
administered the saliva test and when the result was .02 she then administered
the confirmatory breathalyzer test. The result of that test was .015 and at that
time she contacted Randy Peck, which was the policy Tri-State followad. When
questioned whether over-the-counter medications would produce a positive
reading, she responded that after ten minutes any residual mouth alcohol would
have dissipated and would not register on either the saliva test or the
breathalyzer test.
A short break was taken at 2:50. At 3:08 the hearing continued and Corporation
Counsel called upon Mary Maas. Ms. Maas gave her education and background
upon questioning and also gave an overview of how the two tests are performed.
The process begins with about ten minutes of paperwork; the saliva test is given
and after two minutes the readings are displayed. If the reading is .02 or above,
a confirmatory breathalyzer test is given following a fifteen minute waiting period.
She explained that they wait the fifteen minutes to assure the most accurate test
results. On July 18th , Mr. Kelly did sign a release form and he was aware of the
test results. On July 19th, he called Ms. Maas and gave her a list of additional
medications, which he had taken. When he questioned whether these
medications would have caused the tests to be positive, he was referred to
Jacque Schenke. She told him that chloraseptic and Listerine should not affect
the test results and over-the-counter medications such as Nyquil would not show
on tests if taken in the prescribed doses. In response to a question, Ms.
Schenke testified that beer and alcohol go directly to the blood stream and
medications do not.
Mr. Lindahl then questioned Ms. Lois Schueller, Manager of Tri-State
Occupational Health, who responded that Mr. Kelly's tests had been
administered correctly and according to policy. She further stated that these
tests monitor alcohol concentration and that residual alcohol in the mouth would
not cause a positive result. She testified that according to their policy, if the test
is not an IDOT test, they still follow the same procedure for administering the
tests, however it is up to the individual company to determine if the results were
positive or not.
Closing Statements - Ms. Hoeschen stated that it comes down to standards and
that standards for the tests were not given to Mr. Kelly, the Union or to the
testing facility. The City had authored the agreement and Mr. Kelly had
complied with it. Further, the test results were not positive by any standards
other than the City's.
In closing, Mr. Lindahl stated that on July 18, 2001, Mr. Kelly had alcohol in his
blood and that this was confirmed by two different tests~ Mr. Kelly signed the
agreement voluntarily and knew that if he tested positive he would be terminated
from employment with the City. The City may have authored the agreement, but
the Union was given the opportunity to review it.
After discussion by the Commission, Wertzberger moved to uphold the decision
of the City in the matter of William Kelly's termination from employment with the
City of Dubuque. Seconded by Kluesner. Upon further discussion, the motion
was passed
There being no further business, Kluesner moved to adjourn. Seconded by
Wertzberger. Unanimously approved and meeting adjourned at 3:58 p.m.
Chairperson
Civil Servic~,'l~°~'~n ~//
Approved at meeting of 11/14/01
/s/ Merle J. Duehr, Jr.
Chairperson
/s/ Loras J. Kluesner
/s/ Richard Wertzberger
Civil Service Commission