Arbitrator orders fired Clallam County Public Utility District foreman back to work
By Paul Gottlieb
Peninsula Daily News
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“I was surprised,” he said Tuesday after the PUD was informed Monday.
“I disagree with what the [arbitrator] came up with, but then, that's what he came up with, and that's the process, so we'll live with it.”
The arbitrator said Kelly should be returned to work after he was fired last April 6 for getting paid $24,726 in PUD residency stipends for living in Forks when he allegedly was not residing there — which he admitted, according to a state Auditor's Office report.
“The district shall make him whole for pay and benefits lost as a direct result of that improper termination,” ruled arbitrator Howell Lankford of Milwaukie, Ore.
Kelly lived in “dual residences” in Port Angeles and Forks but did not know the consequences of doing so, Lankford said.
“There is no just cause for discipline when an employee could not reasonably have known in advance the possible disciplinary consequences of his or her actions.”
Simpson said Tuesday he had not read the decision and that the PUD commission still must discuss the ruling.
But Simpson indicated that the PUD will not challenge the arbitrator's decision, citing the potential legal costs.
“I guess there's room for discussion, which we haven't had, but typically in binding arbitration, if you disagree, it gets to be real messy and expensive,” Simpson said.
Kelly is president and business manager of the International Brotherhood of Electrical Workers Local 997 and is the husband of Cindy Kelly, who ran unsuccessfully last November against Simpson, the owner of Angeles Electric in Port Angeles.
The residency requirement is in the contract so that linemen are not inconveniently far from the site of after-hours emergency work, Lankford said.
“The district cannot show by a preponderance of the evidence that Mr. Kelly should have known that reducing his off-duty presence in Forks might result in his summary termination,” Lankford said.
Cindy Kelly said she would not comment on the arbitrator's decision based on advice from her lawyer.
Timm Kelly did not return calls for comment.
But the issue is far from dead.
Timm Kelly filed an unfair labor practice complaint with the state Public Employment Relations Commission in October that has yet to be scheduled for a hearing, commission Executive Director Mike Sellars said Tuesday.
“They have been trying to schedule it this spring,” said Sellars, adding that the commission hearing might be held in Clallam County.
The complaint alleges Kelly was discriminated against and terminated because of his union activities, Sellars said.
The county Prosecuting Attorney's Office also could pursue action against him based on a state Auditor's Office fraud investigation that was completed late last year, Prosecuting Attorney Deb Kelly, who is no relation to Timm Kelly, said Tuesday.
The Auditor's Office concluded in a report issued in October that Kelly was paid the stipend although he did not live in Forks for 50 percent to 100 percent of the time between Jan. 1, 2007, through April 6, 2012, the date of his termination.
Timm Kelly provided the residency information to a PUD investigator but would not be interviewed by the Auditor's Office.
The report said that the PUD should seek recovery of the $24,726 in stipends and an additional $1,588 for the Auditor's Office investigation.
Deb Kelly said Tuesday she will decide “within the next few months” on whether to pursue a charge or charges against Timm Kelly.
The PUD agreed to binding arbitration under the terms of its contract with the IBEW after the matter could not be settled, PUD spokesman Mike Howe said in a prepared statement.
“While there are issues to be worked out in implementing the arbitrator's decision, the district will do so,” he said in the statement.
Howe would not comment on the decision beyond what was in the prepared statement.
The report said Kelly received about $550 a month for living in the Forks service area during that period.
The district pays $48,000 a year in residency stipends to seven employees, according to the report.
The Auditor's Office also said the PUD “allowed” the loss of public money.
“Internal controls at the district were not adequate to safeguard public resources,” it said.
“We found the district did not verify the residency of the line foreman receiving an area-pay stipend, which allowed the loss of public funds to occur.”
Simpson said that policy changes since the Auditor's Office report was issued include asking questions of employees annually about where they live and if they still qualify for the stipend.
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at firstname.lastname@example.org.
Last modified: March 13. 2013 12:25AM