Todd Bensman

FIRED INSPECTORS GETTING THEIR JOBS BACK, DISCIPLINES REDUCED ON APPEAL

Mar 16, 2005 10:00 pm US/Central
By Todd Bensman, CBS-11 News, The Investigators

In her State of the City address last summer, Dallas Mayor Laura Miller cited the firing of 32 Code Compliance Department inspectors, and the disciplining of 40 others, as proof that she had not strayed from the populist message that originally won her high office: improving basic city services. She and other top city officials had, just weeks earlier, proudly announced what was perhaps Dallas' largest mass discipline, which came amid gathering debate over whether City Hall was capable of fixing its problems.

But a CBS-11 News examination of records shows that this oft-heralded move to discipline or fire half of an entire department for alleged malingering has quietly come undone over the ensuing nine months. At least ten of the 22 terminated code compliance officers who appealed the decision have been reinstated to their city jobs, albeit without back pay and with suspensions and findings of fault in their permanent personnel files.

An 11th was allowed to replace termination with retirement, and the reversals show no sign of letting up. As many as eleven more termination cases are working their way toward civil service employment hearings in which judges have consistently issued favorable rulings and opinions critical of the city's mass disciplinary action. Among the 40 who received other forms of discipline, many have succeeded in having their demotions and suspensions reduced or overturned, also on appeal, city officials confirmed.

The city undertook the discipline actions after an audit showed that code enforcement personnel had misreported the amount of work performed and announced the move at a crowded press conference. The summer 2003 audit found that most claimed writing far more code violation citations than they could account for, while some underreported their work in apparent error, according to internal investigative files. The city manager's office, one stop along the appeals route, has reinstated five of the employees. As of this week, all five of the fired employees whose cases went beyond the city manager's office to be heard by a visiting administrative law judges have won back their jobs.

According to a rare interview with one judge and the rulings of others obtained by CBS-11 through the Texas Public Information Act, the administrative law judges believe the city incorrectly implemented the firings and discipline. According to the judges, in their haste to correct a clearly troubled department, top city leaders who orchestrated the discipline, all of which was approved by then City Manager Ted Benavides:

-- Violated personnel rules that require supervisors to issue ample warnings of a correctable problem and an opportunity to improve before discipline is meted out.
-- Handed down the discipline without the required regard for the totality of an employee's job performance over time and instead based punishment on an arbitrarily created matrix. That matrix based the level of discipline on the number of misreported citations; the more errors, the harsher the discipline.
-- Unfairly distributed punishment, with low-level employees receiving harsher treatment than supervisors who were equally responsible for reporting problems.

"I think they were probably a little quick," said Fred Ahrens, an administrative judge who agreed to talk with CBS-11. He spoke Tuesday after reinstating former code inspector Terry Sonnier to the job he lost eight months earlier. Sonnier was fired last June for reporting only 26 of the 28 citations he wrote in one month. In a different month, he over reported his work by 14 citations.

"I think the condition of the department dictated that something needed to be done," Ahrens said. "They didn't follow procedure. I think had they sat down and said, 'hey, this reporting is a mess. Here's what the rules are; 'from now on you have to report accurately and honestly or you're going to be discharged. But they didn't do that."

Ahrens had reinstated other employees before hearing Sonnier's case, on grounds that the city did not follow its own procedures. Other rulings also cited a failure of city supervisors to follow procedures and labor relations norms.

In December, a civil service trial board reinstated Ernesto Patlan to his job. The board concluded, in part: "The termination decision was made by the department head without consultation with others, and in spite of Paylan's past record of good performance. I felt that the termination was too harsh a punishment, given all the circumstances."

City officials defended the firings and disciplinary actions, saying administrative law judge rulings are merely opinions that routinely differ from those of supervisors. City Attorney Madeleine Johnson noted that the judges did uphold some of the city's findings of wrongdoing but merely disagreed with the degree of punishments the city handed down.

"The finding was that there were violations," she said. "The disagreement has been as to the nature of the discipline. I think the disciplines were properly done."

Johnson seemed resigned to the prospect that most, if not all, of those who have appealed their terminations could win reinstatements.

"You can kind of get a critical mass going toward the fact that you know someone is losing their job," she said. "A decision is made in favor of one employee, perhaps that individual's case is sympathetic. Perhaps the next person's case is sympathetic, and then it kind of gets the ball rolling on things, and it's difficult to kind of stop that process from happening."

The City Manager's office overturned five of the terminations, reducing them to suspensions instead. Assistant City Manager Ramon Miguez, who was responsible for the decisions, offered an explanation not dissimilar to those offered by the administrative law judges. He stopped short, however, of saying he agreed with the judges that the firings were carried out in violation of established city procedures.

"There is a distinction between an employee who outright lies versus one who makes an error," Miguez said. "You have to take a whole lot of other things into consideration, the record of that employee, how long he or she has been with the city and, most important, how has he or she performed while they've been employed?"

Miguez also noted that in reinstating the five fired employees he left them with stiff punishments on their records, including unpaid suspensions.

CBS-11 News examined the personnel files of six code inspectors who got their jobs back. In each of those cases, the city audit found that the employees significantly padded their work reports with citations that could not be found. Some of the employees offered explanations that their supervisors rejected. Some admitted mistakes but said they were unintentional.

Most are now back on the job, albeit under tight supervision and clearly defined performance expectations that if not met could lead to the discipline they narrowly escaped via the appeals process.

After winning back his job Tuesday, Sonnier said he considered his successful appeal to be vindication. He stood next to his attorney, Phil Burleson, Jr., who has represented several other code employees who won back their jobs.

"I'm just very pleased that it's over, and I'm just glad I've been vindicated, and I'm happy to get my job back."?

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