Minutes Civil Service 12 19 07CIVIL SERVICE COMMISSION
MINUTES
Date: Wednesday, December 19, 2007
Time: 9:00 a.m.
Place of Meeting: City Hall -Conference Room A
Present: Chairperson Merle Duehr, Commissioners Loras Kluesner and Paula
Gieseman
Also Present: Police Officer Kurt Rosenthal, Police Officer Jamie Bowers. Attorney
Andrea Hoeschen, City Attorney Barry Lindahl, City Manager Michael Van Milligen,
Police Chief .Kim Wadding, Assistant Police Chief Terry Tobin, Personnel Manager
Randy Peck, retired Police Captain Tom Raschke, Police Officer Tom Pregler. Gallery
of unnamed Police Officers.
Chairperson Duehr called the meeting to order at 9:06 a.m. and the Commission heard
testimony related to the following:
1. Grievance of Kurt W. Rosenthal Appealing his Termination from the City of
Dubuque Police Department.
Upon agreement by both attorneys, all witnesses were sworn in.
Opening Statements
City
City Attorney Barry Lindahl opened with preliminary issues and a review of the
allegations before Police Officer Kurt Rosenthal. Lindahl stated that Rosenthal violated
Dubuque Police Department General Order 03-05A and 03-29 during an incident in the
early morning hours of October 26, 2007, involving multiple phone calls to Officer Jamie
Bowers while intoxicated. Lindahl reviewed the timeline of Officer Jamie Bowers' actions
and her response as well as the investigation undertaken by Assistant Police Chief
Terry Tobin. Lindahl said that the behavior demonstrated by Mr. Rosenthal was so
egregious that it warranted termination without consideration of work history or
progressive discipline. It is a case of a lack of judgment, and he asked the Commission
to uphold the recommendation of Police Chief Wadding and City Manager Van Milligen
to terminate Kurt Rosenthal.
Rosenthal
Attorney Andrea Hoeschen opened by questioning if the career of a young officer
should be terminated for one, off-color incident. They are not disputing the facts but the
termination. They will talk about the definition of sexual harassment as well as the
number of other officers that were present and intoxicated during the incident and who
are not being disciplined. There is no other evidence in Mr. Rosenthal's work record of
previous misconduct or that he ever engaged in any off-color incident before. She said
that there should be repercussions, and Mr. Rosenthal has regrets. He first made the
call to Officer Bowers to apologize. He drank too much and the termination was
inappropriate and unjust.
Examination of Assistant Police Chief Terry Tobin by Barry Lindahl.
Upon questioning, Terry Tobin identified himself and provided a brief work history
including other positions he has held within the Police Department. He confirmed the
details of the incident as he knew them. He became involved when Office Lemke e-
mailed him about Lemke's meeting with Officer Bowers where she played recordings of
the voicemails she received on her cell phone from Officer Rosenthal. Lemke was able
to determine that the phone number the calls were place from was Kurt Rosenthal's.
Tobin then spoke with Chief Wadding, and a meeting with Officer Bowers was
scheduled. Tobin reviewed the voicemails and text and discussed Ms. Bowers' feelings
over the incident as well as possible options and procedures for her to consider. Tobin
interviewed Officer Dalsing and the other officers that were in attendance at Perkins'
Restaurant the night of the incident, those named in the voicemail messages, and Mr.
Rosenthal's roommate. Tobin's preliminary decision was that Rosenthal had made the
calls, was highly intoxicated, and was driving while in an intoxicated state. Tobin stated
that the investigation is on-going and that is why no other officers have been disciplined
to date. Two other officers are being investigated under violation of General Order
regarding off-duty behavior and public intoxication.
Without objection, Plaintiff's Exhibits #1 and #2 were offered into evidence.
#1: Dubuque Police Department General Order 03-05 Personal Conduct
#2: Dubuque Police Department General Order 03-29 Sexual Harassment
Terry Tobin read highlighted sections from the Exhibits for the record. He stated that
witnesses' statements were consistent. He then reviewed the incident as was told to
him by witnesses: Two bowling teams of police officers went bowling together on the
evening of October 25, 2007. After bowling the group proceeded to Hammerhead's for
about an hour of drinking at 9:30 p.m. Some of the group then proceeded to Fat
Tuesday's from about 11:30 p.m. to 1 a.m. when they continued to Perkins' Restaurant.
There were four off-duty officers at Perkins' with 2 civilians where the discussion
revolved around work, girlfriends, and living arrangements. There was some idea of
calling Officer Bowers, which Kurt Rosenthal did. Tobin said that Rosenthal was
cooperative during the interviews. Rosenthal told Tobin that he was there from the
beginning arriving about 6:30 p.m. and that he was drinking during bowling. Tobin said
that Rosenthal admitted to drinking a six pack, drinking at Hammerhead's and at Fat
Tuesday's where he drank heavier and did Southern Comfort and lime shots. Rosenthal
had admitted that he was intoxicated at Fat Tuesday's and drunk at Perkins. Rosenthal
was witnessed driving to Perkins. Tobin said that the calls from Perkins were made by
Kurt Rosenthal. Tobin said that he listened to the calls when he spoke with Officer
Bowers. He had a transcript and copies made with the help of the Cable TV Division.
The voice was recognized as that of Kurt Rosenthal. Tobin said that Rosenthal did not
recall making the calls.
Without objection, Plaintiff's Exhibit #3 was offered into evidence.
#3. Written transcript of phone messages from Officer Bowers' cell phone
Lindahl requested the audio recordings of the phone calls be played for the purpose of
supplementing the written transcript.
Hoeschen stated that the facts had been agreed to as cumulative and playing the
recordings was irrelevant.
The Commission approved playing the recordings.
The recordings of two phone calls were played for the record.
Hoeschen objected on the basis of completion and that the entire Exhibit be played,
which includes a third calf, or nothing at all.
Tobin explained that there was an additional call to Bowers later in the afternoon on the
day of the incident that was included in Exhibit 3.
Lindahl played the third phone call.
Tobin further stated that Rosenthal identified himself on the voicemail as someone else
and as another officer (Dane Cox). Tobin said that Rosenthal explained he was in a
high state of intoxication, wanted to be the life of the party, and didn't understand the
ramifications of his actions. Tobin believed that Rosenthal and Bowers knew each other
as co-workers only and that there was no previous social interaction. Tobin also
believed that after the group left Perkins, they all went to their respective homes.
Witnesses saw Rosenthal drive. Rosenthal admitted to Tobin that he did not directly
remember driving home. Tobin interviewed Officer Jamie Bowers about 5 p.m. on
October 29, 2007. She played the messages for him, and he made a cassette
recording. He asked Bowers how she wanted to proceed. She stated to Tobin that she
didn't know why this happened to her. She said she consulted within the department
and with friends on how to proceed before deciding to file a formal complaint. Bowers
told Tobin that she was concerned as to how she would be perceived within the
department and feared having a bull's eye on her back. However, she wanted to bring
attention to it. Tobin conducted a detailed interview with Bowers regarding the incident
including the timeline of calls and Bowers' actions afterward. Bower's told Tobin that it
was Officer Danielle Basten who confirmed that it was Rosenthal's cell phone number
used to make the calls to Bowers. Bowers recalled for Tobin the details surrounding the
third "apology" phone call from Rosenthal after which she spoke to her parents. She had
told Tobin that she was not surprised by the call and assumed Rosenthal made it to
protect himself as he was on the promotional Certified List for corporal. She shared with
Tobin who she had spoken with and how she felt. Tobin then made a recommendation
to Chief Wadding that Rosenthal's conduct was improper and a violation of General
Order. Tobin did not make a recommendation of penalty to Chief Wadding, but it was
discussed at the time.
Cross Examination of Terry Tobin by Andrea Hoeschen
Upon questioning Tobin concurred that:
To the best of his knowledge Bowers and Rosenthal never discussed the phone calls
with each other.
It was only assumed Rosenthal had aself-interest in making the calls.
Rosenthal would not be expected to make inappropriate calls if sober.
Rosenthal's behavior was attributed to being out late and drinking.
This type of behavior was not expected from Rosenthal while on duty.
It was uncharacteristic and an insolated incident between Bowers and Rosenthal.
It is not claimed that Dane Cox did not make the calls.
It is not disputed that Rosenthal identified himself and admitted to the content of the
calls.
The incident happened on October 26 with a
within days of the final investigative report.
The investigative report showed other officers
also driving.
final report November 15 and termination
present at the time were intoxicated and
Another officer obtained Bowers' cell phone number.
Despite the ongoing investigation, none of the other officers present at the time have
been disciplined to date.
Without objection, Rosenthal Exhibit #1 was offered into evidence.
#1 Excerpts from Kurt Rosenthal's personnel file with the stipulation that all
information having been provided by Personnel Manager Randy Peck.
Tobin confirmed the transcript of his questioning of Rosenthal, the Final Findings memo,
and evaluations for calendar year 2006 contained in the Exhibit.
Re-Cross Examination of Terry Tobin by Barry Lindahl
Upon questioning Tobin stated that the reason for not disciplining the other offices
present during the incident was due to the interruptions and schedule conflicts, which
have delayed interviews. There is also the pending review by the Dubuque Police
Protective Association and its attorney. Additional facts came to light during the Bowers
and Rosenthal interviews, which led to further investigation.
Examination of Jamie Bowers by Barry Lindahl
Upon questioning Officer Jamie Bowers identified herself and provided a brief work
history, career-related education, and an explanation of her work duties. She said her
father was a 30-year veteran of the Davenport, Iowa, Police Department, and Terry
Tobin had correctly described the details of the incident as told to him by her. She went
on to say that she had had no other relationship with Kurt Rosenthal other than as co-
workers, working service calls together, and having some mutual friends. Bowers then
reviewed the circumstances of the incident in the early hours of October 26, 2007. She
thought the cell phone calls were from someone she knew, but she didn't recognize the
phone number or have any idea of who it might be. After the calls, she said she felt
offended, violated, and attacked. She contacted fellow officer Danielle Basten, who
confirmed the phone number was Kurt Rosenthal's. Bowers said that she couldn't
believe that someone made the call or would have a reason to make a call like that. She
did consider the impact of Rosenthal being placed on a promotional list and the
potential of his becoming her supervisor. After learning it was Rosenthal who made the
calls, she contacted her father.
10:20 Break
Bowers then spoke with Officer Lemke on the morning of October 26, 2007, and
reviewed the incident who then spoke with Terry Tobin. Bowers spoke of continued
impact at work and the feeling of being hated. She deals with it everyday at work and
felt uncomfortable and nervous testifying. She is concerned about working with Kurt
Rosenthal and feels things are divided at work. She has no second thoughts about
continuing in law enforcement, but often thinks about how to go about her job now. She
first thought Rosenthal was covering it up then remembered the promotional list
Rosenthal was on.
Cross Examination of Jamie Bowers by Andrea Hoeschen
Upon questioning, Officer Bowers said that there has been no retaliation from fellow
officers to date or fail to back up. She hasn't received any direct derogatory comments
on or off the job. No one told her not to report it. She has heard things second hand but
is still treated professionally. She said no one is saying Kurt Rosenthal speaking about
her behind her back. She has had no other contact with Kurt Rosenthal. She admitted
listening to the call from Rosenthal apologizing before Officer Lemke interviewed her
and played it for Lemke. She agreed that Rosenthal was drunk when he placed the first
two phone calls and he never said anything derogatory to her before this incident.
Examination of Police Chief Kim Wadding by Barry Lindahl
Upon questioning Chief Wadding identified himself and provided a work history. He
became involved in the incident when Assistant Police Chief Terry Tobin relayed the e-
mail from Officer Lemke. Wadding then assigned Tobin to the investigation. Tobin
reported back with a formal summary on November 15, 2007. He then reviewed the
report with Tobin. He concluded that there were three violations of two General Orders.
Wadding then scheduled apre-determination hearing with Rosenthal on November 21,
2007. Wadding reviewed the details of his meeting with Kurt Rosenthal during which
Rosenthal told Wadding that the report was an accurate account of the incident but that
he didn't recall making the two first phone calls. Wadding made his recommendation
after looking through Rosenthal's files and reports. Wadding reviewed Rosenthal's file
which included exhibits provided. Wadding said that he made his conclusion even after
reviewing Rosenthal's file because of the most severe and exploitive nature of the
allegations, that Rosenthal was not in control of his faculties, as well as considering the
impact on Officer Bowers. Wadding said that he did consider other forms of discipline
including days off but felt it wouldn't resolve anything. He still recommends termination
with the City Manager's recommendation.
Cross Examination of Police Chief Kim Wadding by Andrea Hoeschen
Upon questioning Chief Wadding said that an officer's file is always reviewed with any
disciplinary matter and that Rosenthal is a good officer. Ms. Hoeschen questioned what
Wadding expected to find in Rosenthal's file noting the absence of information that
would justify or support termination. The file was then reviewed. Wadding
acknowledged the presence of evaluations showing constructive performance,
professionalism and commendations. Rosenthal's work history was reviewed including
recent promotions before the October 26, 2007, incident. Wadding said that although
Rosenthal was on the certified list for promotions, none were being considered at this
time. Wadding said that he was aware of Rosenthal's phone call to Bowers to apologize
and of Rosenthal's promotional status. Wadding said that there may have been multiple
reasons for Rosenthal's call to apologize but believed the primary one was that
Rosenthal knew the incident was a stupid idea and that Rosenthal understood the
severity of the incident.
The City rested at 10:45 and a break was taken.
Examination of Tom Raschke by Andrea Hoeschen
Upon questioning Mr. Raschke identified himself and stated that he works as a
probation officer for the State of Iowa in the Dubuque facility. He provided a brief work
history as a Dubuque police officer and that he retired as a captain in June 2006. He
had direct supervision of Kurt Rosenthal and worked the same hours he did. Ms.
Hoeschen made reference to a January 27, 2006, evaluation of Kurt Rosenthal in which
Raschke, while as Rosenthal's supervisor, wrote a commendation. Raschke reviewed
the circumstances surrounding the commendation. It was the opinion of Raschke that
Rosenthal got along with his co-workers and citizens and was able to de-escalate
situations, do his reports well, and that Raschke did not receive any complaints on
Rosenthal. Raschke believed that Rosenthal made no distinction between male or
female officers or the general public, and he was never derogatory or disrespectful.
Raschke said that Rosenthal showed leadership attributes. Raschke said that he was
no longer with the department at the time of the incident.
Barry Lindahl had no questions for Tom Raschke.
Examination of Tom Pregler by Andrea Hoeschen
Upon questioning Officer Pregler identified himself and provided a work history stating
that he is a patrol officer as well as a member of the Dubuque Drug Task Force. He is a
past board member of the Dubuque Police Protective Association but has no current
administrative involvement with the DPPA. Pregler reviewed a previous incident of
sexual harassment involving a male officer working at the dog track who had made
comments to a female citizen regarding what parts of her body she had pierced. The
citizen filed a complaint and the officer was disciplined and suspended. Pregler
concurred that other officers have received citations or were suspended for driving while
intoxicated. These officers are still working with the department. Pregler said that he
was a witness for the department's interviews regarding Rosenthal along with Nate
Schmitt. Pregler did not dispute the facts of the incident and had no explanation for why
termination is being recommended.
Barry Lindahl had no questions for Tom Pregler.
Examination of Kurt Rosenthal by Andrea Hoeschen
Upon questioning, Officer Rosenthal identified himself and provided a review of his
educational and professional background. He stated that he graduated Top 10 from the
Police Academy and started with the Dubuque Police Department in October 2002. He
was working as a third-shift patrol officer at the time of his termination. Job assignments
included State-certified DARE officer, off-time work at Washington Middle School; one
and a half years with the department's defensive tactics school, patrol duties; field
training officer, domestic crime unit as assigned by Tom Raschke including meetings
with the County Attorney and domestic crime advocates; second term as Vice President
of the Dubuque Police Protection Association; and lead negotiator for contract
committee. Rosenthal said he has not denied making the phone calls to Jamie Bowers,
and he did call to apologize to her. He also stated that no one contacted him or talked to
him before he made the call to apologize. He wanted to apologize and realized his
disrespect. He said he has had no further contact with Jamie Bowers.
Cross Examination of Kurt Rosenthal by Barry Lindahl
Upon questioning, Rosenthal agreed that he has had little contact with Jamie Bowers,
he was drunk while at Perkins Restaurant and while driving home from there. He didn't
recall making the first two phone calls.
Commissioner Gieseman asked if Rosenthal has addressed the drinking problem.
Rosenthal said he admitted himself to Mercy's Turning Point and is on the list as an out
patient. He has received counseling and attended classes, but because of his
termination, he is now without health insurance. He said his admittance into the
program was self-initiated. He has done some drinking but no hard liquor and has cut
back on drinking.
Closing Statement by Barry Lindahl
Lindahl stated that everyone present in the room regrets the incident. No one was
impacted more than Jamie Bowers for whom this incident could be career ending. He
stated that this is a sexual harassment issue and a violation of Dubuque General Order.
Lindahl then read the definition of sexual harassment for the record saying that there
was no question that the phone calls were sexual harassment that created an offensive
work environment. He said that in addition to the sexual harassment, it has impacted
everyone present, their time, and a need for a hearing. If Rosenthal had had no
previous relationship with Jamie Bowers and this was supposedly a random incident,
will it be someone else next time. Rosenthal admitted being drunk and doesn't recall the
incident. This incident was more than a matter of too much to drink. Rosenthal also
misrepresented himself in the first two phone calls. This incident creates a hostile work
environment, a City liability, and impacts others officers and the public. The ongoing
investigation of the other officers involved is not relevant and should not be considered.
This incident was a total lack of judgment, and termination is the only conclusion.
Closing Statement by Andrea Hoeschen
Hoeschen stated that there are no surprises in the evidence and questioned if a single
incident warranted terminating an officer's career. Kurt Rosenthal was the first to realize
the impact of his actions. They were here to protest the termination and not discipline.
The incident was bad judgment but not sexual harassment. There was no intent and
there was an immediate apology. There is no hostile work environment, and no reason
to expect repetition. The incident is recognized as a group of drunken friends out for the
night. It is assumed that Kurt Rosenthal's actions put his potential for promotion at risk.
Rosenthal communicated his apology before Jamie Bowers filed her complaint. The
emotional impact upon Bowers is conceded. There has been no retaliation toward
Bowers. What people think cannot be controlled. They are not debating whether the
incident was right or wrong, just whether or not it should be career ending. Rosenthal is
a respected officer who wants to serve. The City is sending a message of intolerance
that doesn't serve the public or the workforce. We are not the morality police.
There were no questions from the Commission.
Commission Comments
Commissioner Paula Gieseman said that she has a unique take on this case due to her
years on the Dubuque Police Department. She questioned the lack of progressive
discipline before approaching termination, which was clarified by Chief Wadding. She
felt termination would be warranted had Rosenthal been dishonest during the process,
and she believes he has been honest. She noted that Rosenthal apologized before the
investigation began. He sought help and has resumed some therapy activities.
Gieseman said that Jamie Bowers is right to feel attacked, she was brave to take a
stand, and respected her fortitude. Gieseman was glad to hear that there had been no
retaliation against Bowers and hoped it would continue that way. The allegations are
founded. It was an off-duty call that was stupid, mean, and ugly. It is an isolated incident
but allows for healing and working issues out. There is no pattern of behavior or
disrespect to Jamie Bowers or women in general. She recommended discipline but did
not support termination. This is a serious incident that needs serious progressive
discipline. She felt saddened that this behavior still occurs on the force, but it is not a
hostile work environment in the full definition. There is no hope if we can't work
together. Gieseman stated that she would strict toward an officer who retaliates against
Jamie Bowers should that officer come before the Commission. She questioned if a 30-
day suspension is the maximum discipline before suspension. Randy Peck said there
were no guidelines. She said that there is a police culture of alcohol and sex and the
department should gain control of it. Being drunk is not a defense, and police are held to
a higher standard.
Commissioner Loras Kluesner said that a conscientious society does not tolerate sexual
harassment and violence in the workplace. He sees the performance and evaluations of
a skilled officer and is concerned about the message being given to the police force if
this is not addressed adequately, but could not think of an appropriate form of discipline
aside from termination.
Commissioner Merle Duehr said that he first believed in termination without question.
But there is potential to make a positive situation from a negative one or to make
another negative situation out of a negative one. He questioned as to whether the other
officers in attendance felt horrible for Jamie Bowers. Duehr credited Rosenthal for
apologizing so fast. Duehr had difficulty making acareer-ending decision after looking at
Rosenthal's record. Rosenthal will have to work on his issues. Duehr could not support
termination but would support lesser discipline. Since Rosenthal had already been off
for three weeks, Duehr felt more time off was required. He stated that Rosenthal must
continue to attend Mercy's Turning Point program and needs to think about his actions.
Duehr would support a suspension. He said that Jamie Bowers has done nothing wrong
and credited her for staying with her career. Duehr confirmed that Rosenthal was placed
on administrative leave for two weeks and had been off work for seven weeks to date
with his insurance being terminated at the end of the month. Duehr said that Rosenthal
must be required to finish his assessment with Mercy's Turning Point program.
Duehr suggested a motion fora 30-day suspension.
Hoeschen requested that Rosenthal's health insurance be reinstated even if his pay is
not.
The City Manager Van Milligen, Barry Lindahl, and Randy Peck agreed to the request
after deliberating.
Motion by Gieseman to reverse the termination and suspend Kurt Rosenthal for
30 days. Seconded by Duehr. Kluesner believed the suspension was not severe
enough. He questioned removing Rosenthal from the promotions list or from potentially
being promoted. Kluesner was also concerned with the message being sent to the
remainder of the police force that it is alright to get drunk and verbally assault or
violently threaten someone. Motion carried 2-1 with Kluesner voting Nay.
There being no further business, upon motion the hearing adjourned at 11:44 a.m.
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Merle Duehr, Chairperson
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L"oras esner, Commissioner
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Paula Gieseman, Commissioner
Approved at ~ ~a/U~ meeting.
Submitted by evin S. Firnstahl, Assistant City Clerk