The ruling awarding a former OS fire chief $750,000 didn’t just “ding” the mayor, it was “ding-ding-ding-ding.” (Merriam-Webster: “Ding … informal : to penalize or criticize” ) In “Bathke v. City of Ocean Shores et al,” Judge Benjamin H. Settle made it clear his decision was directly related to Mayor Crystal Dingler’s actions in firing David Bathke. “It is not important that Dingler may have intended to provide a fair process, the record as a whole demonstrates that it was not,” Settle writes. Ding. “Bathke was blind-sided…” Ding–ding. “Although Dingler may have attempted to be objective in her findings and ultimate conclusions, her deliberative process was infected by an unfair process leading up to the pre-termination hearing.” Ding-ding-ding. And, the judge describes a Kafkaesque process in which Dingler was prosectutor, judge and executioner: “It was contrary to best practices for her to be both the investigator and the decision maker.” Ding-ding-ding-ding… Previous posts here outlined how “mutineer” Ocean Shores firefighters marched into Dingler’s office, dumped a pile of complaints against Bathke on her desk and demanded she dump him. Her speed in responding as the firefighters demanded stunned the judge.
Dingler hired Bathke in June of 2017, then gave him a glowing review six months later, when his probationary period ended. She failed, however, to do an annual review. As such, she likely was surprised when, as Settle writes, “It was not until December 13, 2018 when Dingler met with members of the firefighters’ union that any firefighter communicated a complaint about Bathke’s performance as fire chief to Dingler, Bathke’s supervisor. The firefighters’ union had taken a no confidence vote as to Bathke’s leadership on December 10, 2018, and all who were in attendance voted in favor of no confidence. On December 13, 2018, the union members presented Dingler and Human Resource Specialist Dani Smith (“Smith”) a list of complaints that had first surfaced at a firefighters’ union meeting three days earlier; the complaints were summarized in meeting notes taken by Smith.
“On the day following her meeting with the firefighters, December 14, 2018, Dingler apparently accepted these complaints at face value—without seeking any response or information from Bathke or conducting an independent inquiry—and placed him on administrative leave with pay. On February 8, 2019, Bathke’s status was changed to unpaid administrative leave.”
Dingler then launched what in hindsight looks like a very shoddy, rushed, one-sided “investigation.” Settle outlines the process: “It is significant that the fire department leadership, consisting of the chief, captains, and lieutenants, met monthly to discuss current issues and problems within the department. Minutes were taken of these meetings, and none of the complaints that were later detailed by certain firefighters at the no confidence vote were documented at the monthly meetings; the reason for which is that they were not likely raised, as Bathke contends. Though there are provisions in City policies for the making and processing of complaints or grievances, not one of the complaints communicated to Dingler by the firefighters were ever made or pursued in accordance with these policies. Additionally, though a provision in the PM, ¶ 5.410(c), provided that every employee was to be evaluated at least once a year, Dingler, as Bathke’s supervisor, never performed such an evaluation. Bathke had no reason to suspect that his job performance was in any way viewed by members of the department or Dingler as deficient. At Dingler’s request, Firefighter and Local 2109 President Corey Kuhl sent Dingler an email on January 7, 2019 laying out the list of complaints the union had identified in connection with Bathke’s performance as fire chief. The list overlaps with some of the complaints stated in Dingler’s pre-termination letter but also contains allegations not in that letter or in Notice of Disciplinary Decision.”
The ‘investigation’: Settle writes that Dingler “then engaged Robin Nielsen, an outside investigator. She visited the City on January 9, 2019 to determine whether Bathke had committed any discriminatory acts or created a hostile work environment. She interviewed only six firefighters. She did not interview Bathke. On January 11, 2019 Nielsen orally communicated her initial findings to the City—that she found no evidence of any unlawful discrimination, harassment, or a hostile work environment. She did indicate there may be some performance issues with Bathke, and she inquired as to whether the City wanted her to further her investigation into those issues. On January 15, 2019, the City informed Nielsen that no further investigation by her was desired and that no formal report to the City on her findings was necessary. On the very next day, January 16, 2019, Dingler, without conducting any interview of Bathke or undertaking any investigation to explore the firefighters’ allegations, sent a letter to Bathke informing him that he had “lost the trust and respect of the members of your department” and that she could “see no path forward” for him to continue as chief of the fire department.” In the letter, Dingler offered Bathke four months of severance pay in exchange for his resignation. Remarkably, there were scant details in that letter setting out specific complaints. Dingler did indicate that she would like to ‘sit down and talk’ with Bathke after January 28, 2019.”
Bathke’s attorney quickly requested a mediation process. “This proposal was in turn rejected,” Settle writes, “there was no further consideration of having a meeting between Dingler and Bathke, and instead the City provided notice of a Loudermill pre-disciplinary hearing along with a Summary of Charges on February 13, 2019.The pre-disciplinary hearing was conducted on March 12, 2019. Other than a brief opening statement by attorney Wellman on Bathke’s behalf, the 3.5-hour long hearing consisted mostly of Bathke addressing in narrative fashion each of the complaints stated in the summary of charges letter to Bathke.”
Dingler’s response again raised Settle’s eybrows; she wrote him a letter, suggesting he resign with a four-month payoff. “When she wrote the letter proposing his resignation, she appeared to have made up her mind that Bathke’s employment was going to end. It was contrary to best practices for her to be both the investigator and the decision maker,” Settle writes.
“Dingler made no attempt to delve into the individual complaints but accepted them at face value as reported to her by the firefighters; she could have sought out other witnesses and City documents that were relevant to issues. She did not do anything more before the pre-termination hearing than rely on what turned out to be, in many cases, the firefighters’ inaccurate, misleading, or incomplete reports and allegations. Even more astonishing is that her investigation did not include an interview with Bathke or an opportunity for him to provide evidence until the pre-disciplinary hearing itself. This course of action also was a violation of standards for pre-disciplinary investigations in the employment arena according to the expert testimony of Deborah Diamond. Dingler’s actions and omissions, if viewed separately, might not constitute sufficient evidence of an unfair process. But, taken as a whole, the cumulative effect of these rendered the decision to terminate as the product of an unfair process and, thus, as a legal matter made in bad faith.”