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.
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