Cass County fires top administrator; his attorney threatens to file suit
FARGO -- County Administrator Keith Berndt's attorney asked Cass County commissioners to think about whether they would fire any employee who uttered a four-letter vulgarity in public.
FARGO - County Administrator Keith Berndt's attorney asked Cass County commissioners to think about whether they would fire any employee who uttered a four-letter vulgarity in public.
Suppose one of the county's snowplow drivers goes into a gas station and uses the curse word while telling a clerk about getting cut off in traffic, employment attorney Leo Wilking said. Suppose another customer overhears and complains to the county, he said.
"Are you going to fire that plow driver? I don't think so. I'm sure you wouldn't. Why is Mr. Berndt being held to different standard?" he said at a hearing Thursday, Dec. 1, to determine if Berndt would keep his job as the county's top administrator.
Berndt directed a four-letter vulgarity at a flight attendant at the end of an Aug. 18 business trip to Chicago, causing the flight crew to kick him off the plane.
The commission voted 4-1 Thursday to fire Berndt, saying his behavior was "not reflective of the Cass County administrator or a Cass County employee."
Wilking said his client is considering suing the county.
"I would say more likely 'yes' than 'no.' "
Berndt, who earns $136,621 a year, had asked to either keep his job or be let go with severance pay worth one to two weeks of pay for each of his 24 years of service. The commission gave him the standard two-week severance.
Earlier, there was a question about whether Berndt was drunk when he confronted the flight attendant, who he told a Cass County investigator had annoyed him by dancing and gyrating down the aisle.
The flight attendant told the investigator he thought Berndt was drunk and he felt intimidated by the county administrator repeatedly approaching him. Berndt denied he was drunk.
Berndt explained to commissioners Thursday that it was the second consecutive all-day business trip he had to fly to and "I was probably not on my best game."
Berndt did receive a ticket for driving under the influence in 2011 and a bar patron in Bismarck alleged to a county commissioner in 2014 that a drunk Berndt was behaving badly.
To prove that Berndt was not drunk in Chicago, Wilking cited the investigator's interview with Mary Phillippi, director of the Red River Regional Dispatch Center, who was coincidentally on the same flight. She said she and Berndt had a few beers while the plane was delayed in Chicago. While she said she isn't good at detecting how drunk someone is, she said Berndt behaved normally with her.
Wilking said the law considers alcoholism a disability and, while Berndt doesn't have a disability, if the commission believes he does and fires him because of it, that's illegal.
State's Attorney Birch Burdick told the commission that, in his professional opinion, it would be illegal to fire someone for taking time off to get treatment for alcoholism, but not for behaving badly.
Wilking argued that that behavior had to be contrasted with Berndt's 24 years of service, including five years as the top administrator during which he was deemed to have met or exceeded standards in every category.
"Mr. Berndt knows how to do his job and he does it well," Wilking said. "Cass County residents and taxpayers are going to ask you why are you letting this man go."
Berndt began working for Cass County in 1992 as county engineer and was involved in every major flood fight in that time. Commissioners hired him to be county administrator in 2011, and, in that role, he has been deeply involved in the $2.2 billion Fargo-Moorhead flood diversion project.
Commissioner Chad Peterson said Berndt's job review could have been different if Peterson did not suffer from "North Dakota nice." Peterson said he didn't write Berndt up on what he knew of the 2014 Bismarck incident because he didn't want anything to undermine the diversion.
The only commissioner who voted against firing Berndt was Ken Pawluk, who said at an earlier hearing that he didn't want to fire someone who had made an effort to fix the problem, referencing treatment Berndt received after the August incident at Pawluk's and Commission Chairwoman Mary Scherling's suggestion.
Scherling said the commission has done a thorough investigation and she's convinced it's the right decision to fire Berndt.
"Mr. Berndt is an intelligent and talented man and I wish we hadn't come to this point but here we are," she said.
Berndt said it's been a privilege to serve Cass County. "While I may not like or agree with what you've decided, I'm not going to harbor resentment. I'd like to wish you the best in the future."
He declined to speak to reporters as he left the county courthouse.