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Former Road Supervisor exhausts grievance procedure

By Michael Howell

At a meeting on Monday, April 23, the Ravalli County Commissioners denied a Stage 3 grievance request from former County Road and Bridge Department Supervisor David Ohnstad, who was asking to be reinstated. Ohnstad was fired last January. The Commission voted unanimously to discipline Ohnstad for making false statements concerning culverts and engineering services and failing to obtain adequate drainage engineering for road work done on Upper Woodchuck Road. The decision to fire him for those policy violations was approved on a vote of 3 to 2 with Commissioners J.R. Iman and

Greg Chilcott dissenting.

The commissioners previously heard Ohnstad’s Stage 2 grievance on Tuesday, March 13 and denied his grievance request at that time. This is because the county’s grievance policy calls for a Stage 2 hearing before the employee’s supervisor. In this case, since Ohnstad was the head of the department, the Board of Commissioners was considered to be his Supervisor. That grievance request was denied unanimously. Stage 3 allows for appealing the supervisor’s decision to the board. This is the meeting that was held last Monday where a second denial was handed down.

At the beginning of Monday’s meeting, Deputy County Attorney Howard Recht pointed out that Ohnstad’s appeal of the Stage 2 decision did not meet the deadline for filing such an appeal. He said the regulations require filing the appeal within five working days of being informed in writing of the decision. He said the letter from the county informing Ohnstad was dated March 13. He noted that Ohnstad’s letter of appeal was dated March 28 and did not meet the deadline.

Ohnstad’s attorney, John Kutzman, noted that the timeline begins when the employee receives notification in writing, not when the letter was written. He said his office did not receive the county’s notification until March 21 and produced a copy of the document with the date received at his office stamped as March 21. He said his client’s appeal was filed within five working days of that date.

Recht advised the commissioners to go ahead and consider the weight and substance of Ohnstad’s letter of appeal, but not to waive the procedural requirements related to the timeline.

The County’s letter to Ohnstad, denying his Stage 2 request, reiterated the motions approved by the commissioners last January 20 when they fired him, that Ohnstad had made false statements concerning culverts and engineering services and his failure to have drainage engineering done on the upper part of Upper Woodchuck Road. In the letter, the commissioners reject the notion that no engineering was required because the road was only being paved, not redesigned or relocated, “given the fact that the existing drainage system was altered and removed, and the road surface was changed by paving.” They also reject the idea that Ohnstad was justified in proceeding without a drainage plan because he was following engineering designs done by two local companies because neither of those companies addressed the upper most section of road.

The letter also addresses the issue of Ohnstad’s unblemished work record and his value to the county in securing large amounts of federal funding for road projects over the years.

“Making false statements and failing to perform job duties is not excused by the level of funds an employee may help secure,” wrote the commissioners.

At the hearing Monday and in his letter of appeal filed on March 28, Kutzman notes that the county’s grievance response letter “does not reflect any of the proceedings that occurred in public that day.” He states that at the meeting very little was discussed. He said the conversation and rationale was limited to the question of whether any “new evidence” was presented or a procedural error occurred that would lead the commission to change its decision, and found none.

Kutzman notes that the commissioners’ letter of denial does not mention this rationale nor does it refer to any of the public comment. Instead, he claims, they make detailed arguments about the alleged factual basis of the firing. He states that none of this analysis occurred at the March 13 meeting or in any meeting that he can find in the public record. He raises the question of when the arguments in the letter were discussed by the commissioners, noting that any off-record discussion of these topics would be a violation of the Constitution and state law.

Kutzman said that the factual basis for the firing of Ohnstad was not presented to his client in a timely fashion for him to properly prepare a response. He said that proper notice of dishonesty would have included a precise specification of each alleged statement as to when and to whom the statement was made and why it is false.

He reiterated his argument that Ohnstad was simply following the directives of the previous commission.

“The election of new commissioners did not retroactively negate those instructions,” he wrote. “In fact, it now appears that Mr. Ohnstad was fired in large part for obeying the previous commissioners.”

Kutzman also argues that no drainage analysis was required because the drainage system was not changed in the upper part of the road. It was only paved. He states that the county implies that Ohnstad removed culverts from that section of the road, and denies this. He claims that the County’s allegation that Ohnstad was claiming that the engineering designs by WGM “directed the removal of culverts,” in the lower part of the road was not true. But, the letter states, “the fact is the designs called for drainage on the west side of the road and did not include culverts under the road.”

“We understand that your own engineer has confirmed it was reasonable not to reinstall the culverts given these plans,” writes Kutzman. “It is therefore disturbing that the commission has conflated these two simple and true statements into an alleged false assertion by Mr. Ohnstad that the plans directed the removal of the culverts.”

Kutzman concludes that “misunderstandings” like this do not constitute good cause to end Ohnstad’s employment.

Commissioner Chilcott stated at Monday’s meeting that the issue was still one of making some determination as to whether there was “new evidence” being presented or a procedural error in their process being pointed out that would lead them to change their decision.

Kutzman said no new evidence was being presented but a procedural error was being claimed in that his client was never given proper notice of the charges against him in time to prepare a response when he was fired in January.

Chilcott responded that they had considered that claim previously and dismissed it. He said the county followed due process.

The commissioners voted unanimously to deny the Stage 3 grievance request.

Asked if they planned to appeal this decision to District Court both Ohnstad and his attorney declined to comment.

One Response to Former Road Supervisor exhausts grievance procedure
  1. Murdoc
    May 7, 2012 | 6:57 pm

    And now the lawsuit…

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