November 15, 2010
Anderson currently works with Risk Management but was an assistant attorney general who worked in employment law.
Armstrong asked whether Anderson was familiar with risk management incident report forms. He said he was. He showed Anderson the risk management form bearing James Long's name and a reference to a complaint under the whistleblower act. That form was not signed. Anderson said that the form was submitted electronically and therefore would not be signed.
Armstrong brought up the 4 + 4 pay increase and Anderson explained that WSI had given raises pursuant to their own internal mechanism. Therefore, there was an issue of how to fairly implement the 4% pay raise. He said employees had just gotten an 8% pay raise and they were trying to prevent a windfall for employees by getting an additional 4%. He said by the fall of 2007, the 4% raise was implemented. When asked whether Long claimed WSI was doing anything illegal regarding that 4% raise, he said no.
Anderson said he also worked on the issue of nepotism regarding Halvorson's appointment. He said that there was a statute which would allow for nepotism under an emergency and also when the employees had been working there long term. Therefore, it was his understanding that Halvorson's appointment did not violate the nepotism statute.
Anderson said he had a meeting with Halvorson, Bjornson, Wahlin, and Forward to discuss whether to terminate Long's employment. Anderson did not make the final decision but gave legal advice. He said Halvorson wanted to dismiss Long for deficient attitude and an issue with the HR Director. He said he told Halvorson to put his concerns in writing and that could form a basis for a pre-action letter of dismissal. Armstrong produced a copy of a billing record from October 11, 2007. Anderson said that bill was for the Long termination meeting.
Halvorson did provide a written list of concerns to Anderson. There was a handwritten notation in the upper right corner which said 10-11 meeting, delivered 10-17-07.
After that date, Long filed his request for whistleblower protection.
Anderson said WSI did consult with him about investigating Long's allegations. He was unsure whether they were under the purview of the Attorney General, but said if they had concerns they needed to do the investigation themselves.
As to WSI's approach while Long was on leave, he advised they go through a pre-action review practice. So WSI issued a letter asking Long for more information regarding his allegations and to determine whether he could come back to WSI. He said he had a conversation with WSI legal saying there needed to be a real process where WSI allows for the possibility of his coming back. Anderson said from Long's responses, it appeared he did not want his job back and left WSI with no choice.
Plaintiff attorney Tom Tuntland then began questioning. He noted a remark in the letter that put Long on paid administrative leave "as cited an AG opinion July 1, 1994." He asked whether that opinion came from Anderson. He said it did not.
Tuntland then turned to a copy of the state performance audit report of 2006. One problem area noted was regarding WSI employees conducting their own investigations of themselves. He noted that was directly related to the investigation of the CEO and interim CEO in Long's notice to the Attorney General. He asked Anderson about his statement that employers should be able to investigate themselves. If an employee's allegations were of wrongdoing on the part of a CEO or interim CEO, should that CEO appoint the investigator? Anderson said the head of the agency has to be involved, there's no other way to do it. He did say if you're questioning whether an investigation involving the head of the agency, should someone from the outside be brought in, he had no quarrel with that and that you could ask Human Resource Management Services or if they were tied up you could hire The Village.
Tuntland turned to the Risk Management Incident Report. Anderson testified that reports are not submitted by email but are made from a web-based system and the sender would get an email confirmation to them for their submission. Tuntland said that Long testified he went downstairs at WSI to report to Risk Management. Anderson was not sure if there was a Risk Management department at WSI. He said that an individual can access the Risk Management website, but to file an incident report you would need a state email account. If it were submitted electronically, the confirmation would have been sent to the email listed on the form. When asked if Jim had talked with a person at Risk Management, could they have sent the form. Anderson said they could have but then their name would be on the form. When asked if they would send the form under their name or under the reporting person's name, Anderson had no answer.
Tuntland noted it was strange that Halvorson came to Anderson regarding firing an at will employee. Anderson said that was not at all strange. Tuntland noted Anderson was there when the former director of WSI was fired for no reason at all. He asked whether Edison was ever given reason for his layoff. Anderson did not recall. Tuntland asked whether Anderson ever looked at Jim's signed acknowledgment that he was an employee at will. Anderson was not aware WSI had employees sign such documents.
With regard to the issue of nepotism, he asked Anderson how long an emergency lasts. Anderson said it would depend on the circumstances and needs of the agency.
Tuntland asked, when Halvorson came to you did he say Long refused to write letters to the editor about the agency that others would sign? Anderson did not recall such a conversation.
He asked whether Halvorson told Anderson that Halvorson gave computer data to Spencer after Spencer left WSI. Anderson replied that their conversation centered on Jim Long and no one else.
Tuntland questioned Anderson's comment that essentially WSI did not want to give a 4% raise on top of an 8% raise. He asked whether at the meeting with Attorney General Stenehjem, did Stenehjem give WSI clear direction on that issue. Anderson said he didn't think so, that how to implement the AG's opinion was left to WSI.
Regarding hiring practices, was Anderson ever asked about what positions were exempt from veteran's preferences. Anderson said no. Tuntland said the CEO was the only position exempt from veteran's preferences. Anderson said he'd have to check that, it's a pretty broad statute.
Armstrong began his redirect of Anderson.
He produced a document from WSI titled Critical Incidents, Jim Long. It listed: inappropriate behavior eroded staff confidence, credible allegations of inappropriate touching, perceptions of favoritism, inability to accept directions from interim CEO.
Anderson said those are valid reasons for termination, that WSI had just cause but needed to separate out issues Long could use for claiming whistleblower. Anderson testified that WSI provided those reasons before Long made his request for whistleblower protection to the AG. Armstrong asked whether when someone is put on paid administrative leave was it typical to not give reasons. Anderson said in Long's case there were due process concerns. Even though he was an at will employee, if you defame him, he could have a name clearing hearing. That's why you don't provide reasons in detail. You say as little as possible so the employee doesn't get the right to have a name clearing hearing.
Anderson said WSI did try to have HRMS and an external vendor do an investigation, but they were not available.
Tuntland then did his re-cross of Anderson.
He noted Anderson said that if there were a report an employee engaged in an improper relationship, he'd be entitled to a name clearing hearing. Anderson said it wasn't that simple. The extent to which a public employee would be so entitled was defined by case law.
Tuntland asked about the attempt to arrange an external investigation. He asked whether Anderson meant that WSI went externally to have an investigation of Long's allegations. Anderson said no, that was in reference to WSI's investigation of Long. When asked which allegations Jim made were going to be investigated, Anderson said that was up to WSI. Whether Long's list of allegations went to the Attorney General's office, Anderson didn't know.