Ouray County’s public health director and emergency manager were disciplined and put on a performance improvement plan for working too many hours during the pandemic, according to records they provided to the Plaindealer after the county asked a judge to keep them private.

The records show County Administrator Connie Hunt instructed Tanner Kingery and Glenn Boyd to “adhere to a 40-hour work week from this point forward for risk management purposes and for County liability purposes.” This was documented in an improvement plan, which was signed by Hunt, Kingery, Boyd and Human Resources Director Sherry Peck on Dec. 28. Such improvement plans are commonly used by managers to address and document deficiencies in work performance for employees who do not meet expectations.

The disciplinary action came just over a week before Hunt said at a Joint Policy Group meeting that she had curtailed Kingery’s and Boyd’s hours and instructed them to not work overtime without prior approval. At that meeting and in a subsequent interview, she repeatedly described the situation as a “personnel issue,” declining to provide further details.

Hunt and County Attorney Carol Viner denied an open records request from Plaindealer co-publisher Erin McIntyre for Kingery and Boyd’s disciplinary records, claiming they were private under an exemption that protects employees’ personal information. They later provided redacted versions of work performance evaluations, but refused to release the disciplinary records. After the Plaindealer retained Denver attorney Steve Zansberg and provided the county with a draft complaint challenging the denial, the county petitioned the court for a decision on whether they must be released, naming McIntyre as the defendant, and asked the court to determine if the employees’ privacy outweighed the public interest of disclosure.

CLICK HERE TO READ THE PREVIOUS STORY ABOUT THAT FILING

Kingery and Boyd decided to release the records to the Plaindealer late last week.

“I think it’s better for all parties that it’s just released instead of a constant battle over it,” Boyd said. Asked whether he and Kingery were consulted about the county’s decision to withhold the documents, Boyd said they were informed that the records had been requested and informed that the county “didn’t want to set a precedent to release any personnel records.”

While he felt the conversation about their work hours was “coming from a place to protect us and to reduce the amount of time we were having to put into the response,” the disciplinary action was a surprise, Boyd said.

“I was shocked that we were put on a performance improvement plan, but I understand why they didn’t want us to work as many hours,” he said.

Hunt said she was unable to comment on the disciplinary action because it was released by employees, not by the county. She said she was “not at liberty” to comment on why she decided to discipline Kingery and Boyd in that manner.

In the improvement plan, Hunt said she was unaware that Kingery and Boyd were consistently working such large amounts of overtime to respond to the COVID-19 pandemic until Dec. 6, when she received emergency incident timesheets from the Public Health office. Both are salaried employees and aren’t paid based on hourly timesheets, but county policy calls for exempt employees to be paid overtime during a declared emergency. The timesheets would also be necessary if the county chose to seek federal reimbursement for emergency overtime costs.

Boyd said he and Kingery did not anticipate being paid for the overtime and worked without expectation of compensation for it until the Public Health Agency received a grant from the state health department. The Epidemiology and Laboratory Capacity grant, which totaled more than $280,000, could be used to cover overtime hours, he said, and after learning that they would receive that funding, they provided the timesheets to Hunt so they could be reimbursed for the work they had assumed they had done for free.

Hunt said Tuesday she didn’t know why the timesheets were submitted in December, or if it was related to any grant funding. “That’s just when they were turned into me,” she said.

The timesheets showed both employees had submitted “extraordinary” amounts of overtime, the improvement plan said.

“The dedication and commitment put forth by the Public Health Director and Emergency Manager in the course of the COVID-19 pandemic is acknowledged. However, knowledge of the extraordinary hours and approval/authorization to work and incur these extraordinary hours was unknown and unauthorized,” the plan said.

County administration determined that “compensating them is favorable for risk management purposes,” despite the overtime being unauthorized. The compensation was split between pay at one and half times their hourly rates, based on their salaries, and compensatory time to be taken off before June 30, 2022.

Before taxes, Kingery was paid $26,540 in overtime and given 13.97 weeks of time off for working 745.1 hours of overtime, according to compensation records. Boyd reported 819.05 hours of overtime, and received $22,047.05 in gross overtime pay and 15.36 weeks of time off.

The payments came from the public health fund and general fund of the county’s budget, Hunt said.

The action plan for Kingery and Boyd instructs them to develop a schedule “to ensure overtime is not incurred” by themselves or any subordinate employee, including completing all testing and vaccinations within a normal work week. Requests to work more than 40 hours in a week “must be approved and authorized in advance by the County Administrator.”

The plan also calls for Hunt to review and approve all “public information officer messaging.” The county commissioners approved funding for a public information officer in December, but Hunt has not filled the position yet.

Hunt declined to comment Tuesday on what prompted that stipulation about communications.

It’s not clear from the plan how prior review of all public messaging is related to the overtime issue detailed in the document, but the explanation indicates concern about misperception.

“Exercising oversight for messaging is a trained skillset and requires political savvy and understanding of public perception including the cause and effect of actions,” the plan said. Hunt said she has been reviewing information before it is made public, and the public information officer, once hired, will report to her. She previously said in public meetings she wanted a public information officer to communicate positive information about the county and help with logistics involving the pandemic.

In interviews this week, Hunt and former Commission Chairman Don Batchelder, who led the board until Jan. 12, reiterated the decision to restrict Kingery’s and Boyd’s hours was made to prevent them from working too much and burning out. During the Jan. 7 meeting, attended by county, Ridgway and Ouray elected officials, they said the issue was about needing to preserve employees.

That issue is addressed once in the two-page improvement plan, in the last paragraph. “The COVID-19 emergency is a long-term disaster and must be managed and treated as such for the perseverance of County Staff. It is time to modify command structure to a manageable structure for the solidarity of all involved,” the plan said.

The command structure was briefly discussed during the Joint Policy Group meeting, but has not been altered. Kingery and Boyd are the incident commanders at the top of the structure. Kingery is also listed as the Public Health lead, and Boyd is listed as the safety officer and logistics section chief. “Unified Command” is listed as the operations sections chief; that group previously included others but is now made up of just Kingery and Boyd.

During numerous public meetings over the last year, both have told elected officials about their workload, their consecutive days worked without a break and tasks they haven’t had time or resources to complete.

“I don’t think anyone’s surprised by the hours we’ve been putting in, since we’ve been talking about it for the last 10 months,” Boyd said during the January meeting.

In an interview Monday, Batchelder acknowledged it was well-known that Kingery and Boyd were working extensive hours before Hunt spoke to commissioners about the overtime issue, but cited the unprecedented nature of the pandemic.

In any emergency, workloads are expected to change over the course of the situation, but unlike in a fire or flood, a clear turning point hasn’t arrived in the pandemic and there’s no anticipated end date, he said. There wasn’t a mechanism in place to reassess the workload and priorities over time, a lesson that has been learned from this experience.

“In hindsight, it’s always easy to judge,” he said.

When asked if the decision to discipline them for their work was done with the board’s knowledge and approval, he said that kind of personnel issue is the county administrator’s responsibility, to avoid having muddled lines of communication between employees and commissioners.

“The board was not involved directly in the communication between the administration and the employees, so, you know, there is no way I can specifically tell you what happened at those meetings,” he said.

Commission Chairman Ben Tisdel, the only current member of the board in office at the time of the December disciplinary meeting, declined to comment on the action, citing both personnel issues and pending litigation.

“The county administrator has my complete confidence, is the only thing I’ll say,” he said.

Former Commissioner John Peters, who left office last month, did not respond to a request for comment. Current Commissioner Lynn Padgett, who took office in January, deferred all questions to Viner, who declined to comment.

Commissioner Jake Niece, who was sworn in last month with Padgett, said he believes the previous board did not recognize that Boyd and Kingery needed more help before the end of the year, and didn’t direct the county administration to find and reallocate resources to help them, despite their repeated requests. Niece was present at many of those meetings before he was elected. After seeing the hours for the year tallied up, as Hunt did in December, an adjustment was clearly necessary, he said.

Niece said his understanding of the meeting between Hunt, Peck, Kingery and Boyd was that it was “a difficult conversation, but one that happened and one that’s ultimately productive” in addressing communication issues. “The way I see the personal improvement plan is just a readjustment of that and people getting on the same page,” he said. “I wouldn’t really call it a disciplinary issue.”

He pointed to the board’s decision to have regularly scheduled updates from Kingery, so that the Board of Health can take immediate actions and respond quickly to needs, as a sign of a “culture shift that I hope will encourage more open and honest communication.” He said he also plans to propose dissolving the incident command structure at an upcoming meeting, to operate inside a more normal governance structure. Having multiple positions in the command structure assigned to one person violates a basic principle of that system, which is designed to respond to a much shorter emergency.

“Connie’s not the big, bad wolf,” Niece said. “She’s not saying, work 40 hours, period, and we’re going to reduce the services, that’s not what happened.”

Since they were written up, Boyd and Kingery said they’ve slowed their responses to emails and phone calls, and pushed aside some daily tasks. They no longer respond to messages on weekends, which they had previously done, though that can create a pileup to deal with on Mondays. Their workload hasn’t changed.

The county has also reassigned some employees to temporarily help out, including answering phone calls about vaccinations, and solicited volunteers to assist as well as the pandemic nears its first anniversary.

Hunt said the goal is for employees to work “reasonable” hours, she said, which might involve some overtime “but not 80 hours.”

Hunt herself has previously been admonished for working too much, though it came in the form of a glowing performance review, not a disciplinary action.

In her annual evaluation last July, commissioners praised her for being “too good” at her job, and told her she needed to delegate more, pull herself away from micromanaging and take a vacation. In their last work session before the new commissioners were sworn in, the board again graded Hunt’s work as “truly distinguished.” The previous board evaluated her twice in seven months, which Hunt said in a public meeting was an effort to get her evaluations back on schedule after a delay last year and to have the commissioners she had already served judge her performance.

She told the previous board she had not yet taken the vacation time they’d discussed in July, but that she would once she received her COVID-19 vaccine. Balancing work and personal time was one of the goals set for her in 2021.

Boyd said the decision to release the disciplinary record, which both he and Kingery agreed to, came from a desire to shift focus back to the more pressing issues of the COVID-19 response.

“In conversations with the county, releasing the records was the best route for everyone to get this over with,” he said, noting he doesn’t feel there’s anything damning in the documents.

It’s not clear when Kingery and Boyd were consulted about whether they wanted to keep the records private.

The county asked a judge to strike the names, titles and genders of the employees from court records, claiming it violated their privacy. It also asked a judge to prohibit the Plaindealer from releasing that information to the public.

The county has cited a desire to protect the employees’ privacy in its effort to withhold the documents. It’s also argued that the Plaindealer’s use of Boyd and Kingery’s names in court “may cause a scandal which would be injurious” to them.

Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, said questions about personnel files are among the most common he receives on the nonprofit organization’s hotline.

While there is an exception in CORA for personnel files, appellate courts have twice ruled “the information being withheld has to be of the same nature as the public employee’s home address, telephone number, personal financial information, that kind of thing,” Roberts said. “It doesn’t relate to what they do on the job.”

“The county has claimed the personnel files exception to withhold records that would help explain what’s going on with these managers and why their work hours have been cut back during the pandemic, which has kept them so busy,” he said.

Those records aren’t the same kind of narrowly defined personal or financial information that can be withheld, he said.

After Boyd and Kingery provided the records to the Plaindealer, Viner said the county would move to dismiss its case, calling it moot.

Zansberg argued in a court filing Monday neither employee was asked if they objected to the disclosure of the records until after the county filed its suit against McIntyre, a key issue in a previous court ruling in Paonia in a similar fight for personnel records. He also noted the records were not released by the county’s records custodian, Hunt. The Plaindealer has incurred an estimated $7,000 in court costs while seeking the records, and Zansberg is seeking to have those covered by the county.

County commissioners held a special executive session Wednesday morning to discuss the court case, and met privately for an hour and 40 minutes. No action was taken. A court hearing is scheduled next month.