Newly elected Billings City Council member Joy Stevens is catching a lot of heat here for her Outpost column suggesting that Tussing's employment contract go before a judge. Some of the criticism is misplaced.
One thing some critics overlook is that the police chief's severance agreement was designed in part to protect Kristoff Bauer and Tina Volek from retaliation. Bauer's a dead issue now, but Volek isn't, and if the contract does in fact provide her some legal protection, then the council is obliged to demand that the contract be honored. That's true, I think, no matter what the public wants. You can't sign off on a deal to protect an employee's interests, then ignore it because you decide you don't want to be bothered.
The larger issue of whether Tussing is an employee I will leave to the lawyers. But as I understand it, Tussing has said that he agreed to the deal only because he understood that he could still run for office. If he's telling the truth -- and I have no reason to suspect that he isn't -- then why didn't the city understand that? It's not like Tussing was going to come back and apply to be landfill supervisor. Why wouldn't it have occurred to the city's lawyers to include the one provision most likely to blunt any threat to Bauer's and Volek's future employment?
On the other hand, I don't think much of a deal that would pay an employee a clearly merited severance only if he promised to sacrifice his right to seek public office. That has a definite odor. Could that be why the contract didn't specifically address that issue? Maybe the city hoped to dodge a bullet. Hello, bullet.
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20 comments:
I would rather see someone paid to not seek office then the other way around. Would eliminate the quid pro quo possibility, wouldn't it?
Please, please, please take it to court!
Tina and Tussing say they can work with one another and are willing to do so. Why manufacture a fight where there is none? Aren't there enough fights for blood sucking provocateurs??
What sort of retaliation could one member of an 11-member voting block take without it being glaringly obvious?
I think Ms. Stevens' skewed analogies, warped analysis and phony objectivity offended people more than the part about taking it to a judge, Dave.
I was naive to think we would get a new council that would make decisions and stick by them, eschewing litigation and consultants, and instead operate in the open and be accountable for its decisions. We truly need "the buck stops here" philosophy.
I did not vote for Joy, but I guess I will have to get over it that she won. I am waiting now to see if she can get over herself.
It's Mike Meloy.
I dont have an axe to grind with Joy and would have voted for her if I lived in Ward 2. That being said, that column has sone of the poorest legal analysis and reasoning I have ever read. A Legal Secretary could have done better.
If this is her best work product we are in for a long four years.
That's total B.S., Mark, and you should know it. Volek's report came after-the-settlement, not before and it's outrageous to even suggest anyone should take it seriously. It was a classic end run around the report our taxpayers paid a private investigator and our own Cal Stacey. I note you chose to overlook Cal Stacy's conclusion (the one Bauer bought and paid for with our $$) based on the Reiter report where he told the city there were no grounds for termination. Not accepting Stacey's findings, Volek (at the behest of Mr. Bauer) held her own kangaroo court to come up with her own findings. No one takes her trumped up report seriously. You can try to rewrite history but the Gazette archives are available for anyone to follow the chronology.
If I was Tina, I'd start looking for another job.
The Reiter report wasn't kind to Chief Tussing either - it showed that about half the charges made by Bauer were justified.
I'm not sure if the City Administrator had the authority to fire a Dept Head though, since he was hired by the council.
If Kristoff did not have the authority, then the chief should have stuck to his guns, since the council wasn't willing to make any kind of a decision.
The Reiter report wasn't kind, but it was consistently based on hearsay, not substantiated testimony. (ie., no evidence, only interviews, sometimes third hand) If challenged in court it would have been blown to bits for the flimsy piece of work it was. Didn't we pay that guy (unlicensed in the state of Montana, too) more than $20,000 for a report that took him less than a week to gather and produce? What a collosal waste of time and money.
I wish Tussing had stuck to his guns, but I tried putting myself in his shoes. If I were to spend $30,000 of my own money on legal fees to protect my job and defend myself against a city administrator who appears willing to spend every last tax dollar to hound me out of office, I might decide enough is enough, too. What would you do if you were in those shoes?
Some people may be willing to go to exorbitant expense trying to win an argument, but some of us have our own resources/family needs to consider, and sometimes it just isn't worth the fight when one weighs the cost of everything else potentially lost by the fighting.
I would suggest you quit trying to rewrite history. Volek's report was dated May 19 following the May 13 hearing. Tussing was then told on the same day to accept the settlement offer or be fired. So Mr. Anonymous (10:16 a.m.) please go back and do your research again in the Billings Gazette's archives before you spout off. I don't even think Tussing would want to use Cal's report for a job recommendation either. But the voters have spoken, the council balked on Tussing's agreement several times probably hoping he wouldn't get elected. If it was a problem they should have dealt with it right away as some wanted. If I was the council and Tussing offered to be mayor with no pay and benefits, let's see how good Tussing's word is and take him up on his offer. That would go a long way with me as to his true intentions and the city would recover in excess of $10,000 a year.
Gazette opinion: Chief denied forum to face his accuser
Providing another head-scratcher in a string of City Hall head-scratchers, Friday's disciplinary hearing for Billings Police Chief Ron Tussing was missing a key player - the boss who wants him disciplined.
For more than a year, Tussing and his supervisor, City Administrator Kristoff Bauer, have been embroiled in a dispute over Tussing's job performance. Allegations of insubordination, misconduct and poor decision-making were leveled at the top cop in the state's largest city.
Bauer suspended Tussing on Feb. 22 and proceeded with an investigation of the police chief's administrative activities. At that time, Bauer said he took the action in an effort "clear the air and allow the investigation to proceed as quickly and as fairly as possible."
On April 20, Tussing received a letter notifying him that the city was proceeding with disciplinary action that could end in his termination. A due process hearing date was set to allow Tussing an opportunity to answer the allegations made by Bauer in a 47-page document. After two delays, the hearing originally set for April 29 was held Friday in a small conference room at Billings Logan Airport.
Assistant presides
Bauer was not there. In his stead was Assistant City Administrator Tina Volek. Volek may be a capable public official, but she's not the chief's chief accuser. Assisting her were an assistant city attorney and an assistant human resources manager for the city.
Tussing's attorney, Mike Rapkoch, protested the hearing and asked where Bauer was. Volek responded that she was conducting the hearing and it would proceed. She said she supervises city department heads in the absence of the city manager, so it was not inappropriate for her to represent Bauer at the hearing. When Rapkoch asked who would make the final decision regarding Tussing's employment, Volek said Bauer would make that decision after she provided him a report on the hearing.
This instance of Volek standing in for Bauer reminds us of an earlier chapter in the Tussing-Bauer saga in which her boss evidently didn't deem her a suitable substitute. The report from law enforcement consultant Lou Reiter suggests that a May 2004 grievance filed by Tussing was ruled invalid because it was filed with Volek, rather than Bauer or Human Resources Director Rick Harden, who were out of town.
Meaningful absence
According to city policy, the purpose of a due process hearing is a "meaningful opportunity to be heard at a meaningful time, in all cases, where a suspension or termination may result."
How meaningful is the hearing if the chief accuser isn't there to hear from the accused?
Tussing deserved a hearing in which the person who will determine his discipline was present.
Billings Gazette 7/9/2005
"Bauer and City Attorney Brent Brooks met with Tussing and his attorney on the evening of May 19. Tussing later said that Bauer and Brooks gave him a choice of signing the $160,000 settlement agreement written by the city or being fired.
Mayor Chuck Tooley said Friday that he was out of town during the time of the settlement talks and was unaware of the content of Volek's report until questioned about it on Friday. He referred questions to Deputy Mayor Larry Brewster, who also has recently announced his candidacy for mayor. Tooley's tenure ends this year because of term limits.
Brewster said it "made more sense" to settle with Tussing for $160,000 rather than risk expensive litigation had Tussing filed a lawsuit for wrongful termination or other claims. He said the council was told it would cost the city $250,000 to defend itself against such a lawsuit.
Tussing disputes Volek's conclusions, but described as "wishy-washy" the city's offer to settle the employment dispute with a large cash settlement when it purportedly had grounds to fire him.
"If the right thing is to fire somebody, then that's what you should do," he said.
Volek's report is written as a memorandum addressed solely to Bauer "for your immediate use." Volek notes that it is a summary of her findings, not a complete report. Presumably, Volek did not finish the more complete report after the settlement agreement was signed."
If Bauer has cause to fire Tusssing, he would have. A wrongful discharge suit would have cost a lot more than 160K
File a lawsuit, Ray, or is it Kristoff? Joy? Whoever? Please file a lawsuit. Mayor-elect Tussing has said he'd forego his mayor salary during any litigation until it is settled. If you've got the courage of your convictions and the money to put where your mouth is, go for it.
Guess what? the voters read the Stacey report the Volek memo and they elected Tussing mayor because of/in spite of them. Guess they know a good man when they see one. They should. He was their police chief for 7 years and this is a town still small enough for people to figure out a person pretty fast and the word gets around. Maybe that's why Kristoff is still unemployed and shooting from the weeds? Tussing, on the other hand, has grown from the experience and has been lifted up by the people who know him and respect him. They know he's a straight shooter and won't hide anything from public view. Hail to the chief. Hail to the new mayor!
September 28, 2005 - Billings Gazette - Tussing said that if he's elected he would even be willing to give up the mayor's compensation, which is $800 a month plus benefits.
Now what does Tussing say? "Mayor-elect Tussing has said he'd forego his mayor salary during any litigation until it is settled."
I suppose their is nothing "wishy-washy" or inconsistent in those statements. Wonder what RT will be saying in January 2006.
Hey, maybe you can sue him for what he voluntarily offers, too! Yeah, that's the ticket. Tell it to the judge. I'll make popcorn.
CITY LIGHTS: Council sets stage for new Tussing tussle
Ed Kemmick
CITY LIGHTS 9/25/05
Here's what Ron Tussing did before announcing his candidacy for mayor of Billings: He went to the Yellowstone County Election Office, completed a one-page form and paid a $96 filing fee.
He did not fill out an employment application with the city of Billings. He did not have a job interview with any city employee. And if Tussing is elected mayor, no one with the city will be giving him an annual performance review.
Yet the City Council, perhaps feeling that the residents of Billings haven't had enough of the Three-Ring Municipal Circus over the past 18 months, is thinking of warning Tussing that if he is elected he may have to return $160,000 to the city treasury.
You will recall that Tussing used to be the police chief in our fair city. After butting heads for more than a year with Kristoff Bauer, who used to be our city administrator, Tussing agreed in May to voluntarily resign from his position, in consideration of which, according to the agreement, "Billings shall pay him the sum of $160,000."
The agreement was eight pages long, but the operative clause in the current dispute is short. It says, in full:
"Ron Tussing hereby promises and covenants not to apply for employment or renew his application for employment with the City or the Billings Police Department, and any other entity at which Kristoff Bauer or Tina Volek are employed." Tina Volek was then the assistant city administrator and is now the interim administrator.
Who's the boss?
The operative phrase - I'm no lawyer, but what else could it be? - is "covenants not to apply for employment." How could running for an elective office possibly be construed as applying for employment? The mayor is officially an employee of the city, getting $800 a month plus some benefits, but who is his boss? To whom in the city does he answer?
The answer, of course, is that he has no boss, and he answers only to the residents. By filing for office, he asked those residents to elect him. He did not ask anyone to hire him.
Shirley McDermott, the city councilwoman who has suggested that the city send the warning to Tussing, admits the agreement is problematic. She said a couple of "attorney friends" looked at the document and told her, "Maybe you guys used the wrong words."
Nevertheless, McDermott, and apparently some of her colleagues, are convinced that the city could make a good case for asking Tussing for a refund. Even some of those who didn't want to send the letter made rumblings about seeking a return of the money if Tussing is elected.
"I don't want to threaten Mr. Tussing because he is a legitimate candidate, but I want to caution him that we might ask for our money back if he wins," McDermott said.
Tussing said that could be a problem: "I don't even have most of it anymore because I paid Uncle Sam and my lawyer." But if he's elected and the new council seated in January wants to make an issue of it, Tussing told me, he'd be willing to forgo his mayoral pay and benefits so that he would not be an employee of the city.
Why should it come to that? Given the wording of the agreement, and given how much money the city has spent on legal fees in the past 18 months, why involve the lawyers at all? Tussing was paid with tax money, money collected from the same people who will be voting on Nov. 8.
This issue has been well publicized. The people who vote for Tussing presumably won't object to his keeping the severance check.
A few more zeros
Meanwhile, Tussing's opponent in the general election, Al Garver, is managing to stay in the news as well. Garver is the one who forced the issue of the public safety mill levy back into the public eye, and thanks mainly to him the county attorney will be asking the attorney general to rule on what the mill levy ballot actually meant.
The city's interpretation is that the levy approved by voters last fall is cumulative and permanent - 20 mills in the first year, growing by 10 mills annually for four years to 60 mills, which would become the permanent tax increase. Garver thinks the wording means the levy asks for 20 mills in the first year and then only 10 mills a year for the next four years, sunsetting after the fifth year.
If Garver is right, the city would see its operating revenue cut by many millions of dollars in future years. Against that impact, Tussing's $160,000 would hardly qualify as chump change. But so far the council's course of action in regard to the mill levy has been to do basically nothing, though the county attorney gave it a month - more than a month ago - to justify the ballot wording for the benefit of the attorney general.
Maybe someone should send a letter of warning to the council.
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