Deputy police chief's attorney says city's actions will not stand in court

Facing potential litigation in regard to its decision to cut the deputy police chief from the 2007 budget without providing another job for John Banick, who has held that position since 2002, Maplewood city officials have secured legal representation from the League of Minnesota Cities.

Maplewood, along with other member cities in the League, has access to legal services through the League, which reviews potential claims and will appoint defense counsel if deemed necessary, said lead counsel Tom Grundhoefer.

In this case, the claim was sent after the city received a letter from Robert Fowler, Banick's attorney, earlier this month, said City Manager Greg Copeland.

Eliminating the deputy chief's job was approved Dec. 11 as part of the final 2007 budget, which passed 3-2 with Council Members Will Rossbach and Kathy Juenemann dissenting.

According to Maplewood's overall liability insurance premium, the city will be responsible for the first $50,000 on each claim the League has to defend, up to $200,000.

Currently, the city is also being represented in a lawsuit which former Human Resources Director Sherrie Le brought against Maplewood after she was fired by Copeland in August. The number of claims a city has pending could eventually affect the cost of the insurance premiums paid to the League, Grundhoefer said.

Legal process

Fowler, who is the general counsel for the Minnesota Fraternal Order of Police, said Dec. 18 that he has been in contact with the city's representation from the League and will know shortly if any changes will occur that might mean the parties could avoid litigation.

Prior to his current work representing police officers, Fowler said he was an assistant Ramsey County prosecutor and worked for five years at the former Maplewood city attorney's office of Kelly and Fawcett.

The Kelly and Fawcett firm resigned from service to the city in July, saying the City Council was ignoring its legal advice and putting the city at risk for lawsuits.

Fowler wrote a letter to the city Dec. 7 outlining reasons he believes the city manager and council do not have the authority to eliminate the deputy police chief position.

Citing the Maplewood Police Civil Service Commission rules, Fowler's letter reads, "No regular sworn employees, after satisfactory completion of a probationary period of one year continuous employment, shall be removed or discharged except for cause upon written charges and after an opportunity to be heard in their own defense, as provided by Minnesota law."

The commission's rules are outlined by Minnesota statute 419.05, "Duties of Commission."

According to the rules, Fowler says, the police chief would have to give approval for the elimination of Banick's position. Fowler said he has not seen any documentation of that approval. And, in fact, last week Chief David Thomalla indicated during an interview that he was trying to save the deputy chief job.

According to Fowler, if the council is intent on cutting the deputy chief position, then Banick should be demoted to another job within the department, although with his current salary. Any demotion in rank can be recommended by the city manager, but the action requires the civil service commission's approval. The commission in itself can only remove an officer after written misconduct charges are filed and a hearing is held, Fowler said.

In an interview last week, Copeland contended the Police Civil Service Commission does not have authority in the decision made by the city.

"The City Council has a statutory right to organize the workplace. We're certainly within our rights and it's very specific that the Police Civil Service Commission does not have any budgetary authority," Copeland said.

'A major inconvenience'

The city's proposal to eliminate the deputy police chief was part of several other administrative job cuts, including the parks and recreation director, human resources director, deputy fire chief and assistant city manager/community development director, which amounted to saving the city over $700,000 in expenditures.

Some of the positions that were eliminated were vacant at the time the budget was approved; however, only one was due to the employee leaving the city for another job. Assistant City Manager Melinda Coleman resigned in June to take a job with the Target Corporation.

Parks and Recreation Director Bruce Anderson announced his resignation in November, though he would not say if his decision was related to the proposed elimination of his position.

Deputy Fire Chief Rusty Svendsen resigned in October pending his job removal and a hostile work environment complaint currently under investigation by Bethel and Associates.

Former Human Resources Director Sherrie Le had filed a hostile work environment complaint, which was investigated shortly before her dismissal from the city in August.

Prior to being fired, Le had discovered that Copeland, who was interim manager at the time, had not completed the required official background check, which subsequently was conducted by John Banick.

Banick was also one of the responding officers who arrested Kevin Berglund, who is now married to Mayor Diana Longrie, from a city banquet to honor outgoing City Council members held Dec. 28, 1999, according to police reports and a Review article about the incident.

Berglund, at the time, was a producer of a local cable television show called "Inside Insight," with Bob Zick. Berglund and Zick went to the event, at the Maplewood Community Center, while it was in progress and would not pay the $15 entrance fee because they were not participating in the banquet.

According to the reports, the two were escorted out by police and Berglund was arrested on suspicion of disorderly conduct, trespassing and fifth-degree assault. He took the charges to a jury trial and was declared not guilty. A lawsuit he and Zick filed against the city saying their civil rights had been violated was dismissed in federal court.

While some have quietly wondered if the elimination of the deputy chief's position was retaliation for the background check and the earlier arrest of the mayor's future husband, for his part, Banick has had no comment. Other police at various levels of the department said they had been instructed not to comment.

The deputy police chief cut will save the city $154,926 in expenditures, Copeland said. As far as Banick's last day with the city, Copeland said he hasn't notified staff when that will be.

Other than being a budget cut, Copeland said Banick's job elimination is a result of 10 employees managed by the deputy police chief leaving the city's dispatch center to work at the new Ramsey County facility scheduled to open in March.

The three lieutenants who answered to Banick will now report to Police Chief Thomalla.

News of the budget cut was heard by the Minnesota Chiefs of Police Association Executive Director Harlan Johnson the morning of Dec. 14, he said.

Johnson, a former police chief in Deephaven, said his initial reaction was "bewilderment."

From his previous experience, Johnson said, if the position is cut, the duties of the deputy police chief will probably fall into the hands of the police chief. "The citizens of Maplewood will see no changes in the services they receive; it's just a major inconvenience in the internal operations of the Police Department," Johnson predicted.

While remaining in contact with the city's legal representation, Fowler said he also will be sending a letter to the Police Civil Service Commission requesting it meet before Jan. 1, 2007, and will seek a temporary restraining order to prohibit the city from ending John Banick's employment pending any litigation.

Before being silenced by Mayor Diana Longrie, who said he couldn't speak about specific employees during the Dec. 11 City Council meeting's visitor presentations, Fowler began to address John Banick's work as an officer.

In a follow-up statement made to the Review Dec. 18, Fowler said he would have said during the meeting that "John Banick is by far one of the most professional and dedicated law enforcement leaders I know. I had the privilege of working with him directly when I was lead prosecutor and can say from personal experience that I believe it will be difficult, if not impossible, for the city to find a more qualified and community-oriented leader for the Police Department."

Katy Zillmer can be reached at kzillmer@lillienews.com or at 651-748-7822.

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