HomeMy WebLinkAboutDecision on Preliminary Proposed Scope of Work Related to Outside Investigation of Various City Hiring Practices
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Greg Sullivan, City Attorney
SUBJECT: Decision on Preliminary Proposed Scope of Work Related to Outside
Investigation of Various City Hiring Practices and Preliminary Selection
of Investigator (Final Decision to be Made on July 20, 2009).
MEETING DATE: July 13, 2009
AGENDA ITEM TYPE: Regular Agenda
RECOMMENDATION: Adopt Preliminary Scope of Work and Preliminary Selection of
Investigator.
BACKGROUND: On June 29, 2009, you directed me to bring to you a final scope of work for
an evaluation/investigation pursuant to your authority under Sect. 2.09 of the City Charter into
the City’s hiring practices and to provide several options for potential candidates to serve as your
contractor. I provide the following as per your direction.
On June 29, 2009 you voted on four motions regarding an investigation/evaluation into the
City’s hiring practices and a complaint regarding the veracity of statements made by city staff in
before you on June 22, 2009. The specific text of these motions, as transcribed by the City Clerk,
is attached as Exhibit A.
As you recall, the first motion was to create a Commission-led evaluation/investigation. The
other three motions were to define the scope of work.
Discussion on Scope of Work:
The proposed preliminary scope of work is attached as Exhibit B.
The second motion on June 29, 2009, included the following:
1. Investigate the allegations made by the employees contained in the email received on
Thursday, June 25, 2009;
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2. Investigate the emails sent by an employee to a citizen outside of the City inquiring as to
the use by that citizen of public resources to comment on the City’s hiring practices;
3. Review of the City’s hiring policies as those policies relate to the practice of discussing
background information with current employees;
4. The voluntariness of specific background checks as it relates to final hiring decision;
5. The timing and use of waivers and consent requirements;
6. The specifics regarding the practice of reviewing a candidate’s social networking sites;
7. Review of employees hiring process that occurred over the course of the past three years
within the City of Bozeman across all departments all hires;
8. To include investigation of background related to the training of interviewees training
and the background checkers;
9. The specific details of log in information that was acquired;
10. A review as to whether or not this was a violation to our existing Ethics Policy and
Whistle blower policy and what may be needed to improve that policy so that things like
this do not occur in the future;
11. Create safe guards so that policies like this are addressed in a timely manner before
adopted by the organization (Made as a friendly amendment);
12. A review of whether an applicant had reservations of signing a waiver (Made as a
friendly amendment);
13. Conduct evaluations of what standards were developed for appropriateness of content on
a candidate’s personal page (Made as a friendly amendment).
The initial two components of the second motion are relatively straightforward and are included
in the proposed scope of work as items #1 and #2.
The third requirement above is rather broad and may be difficult for an investigator to determine
precisely how to conduct such an investigation. In addition, as I understand, much of this
information will be provided by city staff through a memorandum presented to you within the
next several weeks. Considering the above, I propose an alternative that would have the
investigator determine, for you, the practices and procedures for discussing with a prospective
employee the scope of a background check. Under this alternative, you may determine what was
said to prospective employees during the hiring process as to what types and levels of
investigations were to be done on them. As such, I have included this alternative approach under
the scope of work item #3.
The fourth component of the motion also has to do what the standard practices and procedures
regarding meetings with prospective employees on background checks. Here, it appears you are
interested in learning whether the hiring official informed the prospective employee whether all
or certain aspects of the background check were compulsory or voluntary. You are interested in
the general practice regarding how that information was communicated to the prospective
employee. As such, I have also included this under the scope of work item #3.
The fifth requirement is rather straightforward: you are interested in determining precisely how
waivers and consent forms were given to prospective employees and the communications with
the prospective employee regarding what was being waived and the types of investigations they
were consenting to have done on them. Please refer to scope of work item #4.
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The sixth requirement is directly applicable to the use of social networking sites in the
background check. You would like the investigator to inform you specifically how social
networking sites were viewed for selected candidates for fire, police, and other positions
including a detailed explanation of the precise practices employed. This requirement is related to
many of the above requirements. Please refer to scope of work item #5.
Number seven above is also broad in its scope and as such may be difficult and time consuming
for an investigator to conduct. Moreover, I understand city staff is bringing information to you in
a memorandum within a couple weeks, based on direction given by you on June 22, 2009, that
may include this information. While I have included a statement in the scope of work on this
item (see scope of work #6), I suggest you consider how this item works within the overall
investigation and the information being presented to you by city staff.
It appears from item eight you are interested in learning the level and type of training for all
employees conducting background checks. This is fairly straightforward and has been included
in the proposed scope of work as item #7.
I believe item nine above relates to item six, above. Here, you are interested in learning which
specific log-in information was required of selected candidates. The proposed scope of work (#5)
includes a statement as such.
You are interested in whether any actions of any employee or official violate the city’s ethic
policy and whistleblower policies. This is item 10 from motion #2 of last week. Please
understand that, pursuant to the City’s ethics ordinance, review of a complaint alleging violations
of the city’s ethics ordinance fall within the purview of the City Attorney. As such, upon your
direction, I will review the results of the investigation and, following Chpt. 2.01 of the Bozeman
Municipal Code, I will provide you an initial statement regarding whether there appears to be a
violation of either municipal code or state law. At this time, however, I am unaware of any
evidence that exists that would indicate a current violation of state or local ethics requirements.
The city does not have a specific whistleblower policy. I recommend you consider adding
elements to the employee code of conduct that makes it certain employees who take actions
regarding citizen comments can be, or is, considered a direct violation of the city’s employee
policies subject to specific discipline, including termination. At this time, however, no specific
policy exists. Section IX (Employee Conduct) of the Employee Handbook has very general
statements regarding employee behavior. Section 10 (Disciplinary Policy) also contains a list of
possible reasons for disciplinary action. These policies are available online at the City of
Bozeman website under Human Resources/Employment Policies/Employee Handbook. As such,
I suggest you consider the formal creation of a whistleblower policy in the near future.
Considering the above, I have not included a statement regarding such a policy in the proposed
scope of work for your investigator/evaluator.
I urge that you be mindful of the requirements in the City Charter regarding handling of matters
related to specific employees and discuss any current specific concerns with the City Manager.
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As for policy considerations, it is undeniably within your authority to establish general policies
for employee conduct.
I suggest item 11 be a discussion item with staff at some point in the near future, rather than
included in a scope of work for an outside investigator. It is certainly within your policy
authority to create policies to be used in the hiring of personnel. You may however, request the
investigator to provide suggestions on how to go about a process such as this. If you are
interested, please specifically call this out and I will draft language in the scope of work to
implement this direction.
I believe item 12 relates to any circumstances where a prospective employee was requested to
provide authorization for conducting a background check but hesitated in doing so and how that
situation was handled by the hiring official. It appears you are interested in determining what
was the standard practice if such a circumstance occurred and, if so, how specific discussions
were had. I believe this can be accomplished by the investigator and as such have included a
statement regarding this in the proposed scope of work. See scope of work #3.
Finally, item 13 seeks an inquiry into exactly what the reviewer of a social networking page was
looking for, the criteria the reviewer would use, and also how that information was
communicated to the hiring committee. As such, I have included this in the proposed scope of
work. See scope of work #5.
Other Considerations Regarding the Scope:
Apart from the requirement number one in motion two, above, I suggest the Commission limit
the scope of the investigator to that of a “fact-finder” and any factual conclusions or policy
changes that result from the investigation be within the purview of the Commission rather than
the investigator.
For scope of work items #3, 4, 5, 6 and 7, I inserted a requirement that the selected contractor
provide information to you regarding industry standards.
You may also wish to scale the scope of work. For example, under the proposed scope of work,
you may wish to contract for performance of items #1 and #2 and then, upon issuance of a report
regarding those matters you may wish to engage a contractor for the other items. You could also
consider contracting for the performance of scope of work #1 and #2 and, for the other items,
limit the volume of interviews. For example, you could contract for a set number of interviews,
such as 10, and, depending upon the results of the 10 interviews, move into another phase
wherein the contractor would interview a great number of employees.
Recommendation on Investigator:
Your third motion requested that I:
“engage a legal expert to investigate the situation, a person familiar with hiring and Civil
Rights of employees, (friendly amendment) a human resource professional, someone who
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knows employment-labor law, (friendly amendment) that the contract will be brought
back to the Commission [sic] will review that includes a scope of work, that this person
will report directly to the City Commission not the City Attorney, and that this is not a
survey but a series of interviews that will be face to face.”
I have not directly engaged a person with the qualifications you mention above but rather have
had preliminary discussions with several individuals who may meet the above criteria. As such, I
am including as Exhibit C, with the oral permission of each, information regarding each for your
consideration. These individuals include:
Michelle Puiggari, an attorney and human resources professional with a background
in employee investigations from Missoula, MT;
Cindy Walker and Don Robinson, two experienced employment law attorneys from
Poore, Roth and Robinson in Butte, MT;
Ann MacIntyre, an Administrative Law Judge/Hearing Officer for the Montana
Department of Labor and Industry; and
Jim Nys, President and Chief Human Resource Management Consultant for
Personnel PLUS! Consulting Services, Inc.
As you will see from the proposed scope of work, this individual is to report directly to you.
Retention/Destruction of Existing Records:
Your fourth motion on June 29, 2009 requested that, at the time a contract is signed, you “will
have a clear policy presented to [you] to make a decision regarding the destruction of all
obtained data and data obtained in the hiring and investigation process…” In addition,
Commissioner Becker clarified the motion by stating, “the Commission wants a specific
recommendation of how this [data destruction] will be conducted and how the data will be
destroyed, and how the data collected in the past (user names and passwords) how that will be
destroyed in an expeditious manner needs to be developed. [Commissioner Becker] wants staff
to come back to the Commission with a plan of how that will occur. This will be looked at, at the
time the Commission looks at the contract.”
At this time the City Attorney’s office has had preliminary internal discussions regarding
Montana and federal law on public document retention and maintenance but is not prepared to
issue a legal opinion at this time as to whether the City could destroy documents containing the
information you are concerned about. Upon issuance of a legal opinion to you, staff can begin to
develop, with your input, a clear policy on retention or destruction of these items.
Finally, you asked this to come back to you at the time the Commission looks at the contract. I
propose a legal opinion be developed within the next several weeks and will be delivered to you
via email.
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Who may/may not opt out of the investigation?
Your fourth motion also included a statement suggesting that it will be mandatory for some
employees to participate in the investigation while others may have the option of opting out of a
request for an interview. Again, I believe all employees will be willing to participate with the
guarantees that their privacy will be protected to the fullest extent possible under the law. If an
employee desires to not participate for whatever reason I ask you handle that request on a case-
by-case basis rather than creating a specific requirement.
Please note that Section 2.09 of the Charter allows you to “… subpoena witnesses, administer
oaths, take testimony, and require the production of evidence. Failure to obey a lawful order
issues in the exercise of these powers by the commission shall be a misdemeanor punishable
pursuant to state law.”
Note on Privacy and Confidentiality: I suggest the contract have a requirement that
investigator is required to keep all notes, discussions, and final results or recommendations
confidential between those who gave the interviews and you. I suggest the contract require that
that you are the only entity that may release any information gathered to the public. This ensures
the investigator is not hampered by undue political or personal influences while at the same time
protecting the privacy interests of all those who participated in interviews.
FISCAL EFFECTS: The fiscal effects of hiring an investigator are currently unknown and will
depend to a large extent upon the final scope of work and the hourly rate of the selected
contractor and thus will be determined at the time a final contract is entered into by the
Commission. This amount can be included in the approved budget for FY10.
ALTERNATIVES: As suggested by the City Commission.
Attachments: Exhibit A (Commission Motions from June 29, 2009);
Exhibit B (Proposed Scope of Work); and
Exhibit C (Information on Candidates).
Report compiled on: July 8, 2009
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