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A state appeals court on Wednesday appeared to be leaning toward overturning a lower court ruling that ordered fired San Francisco Elections Director Tammy Haygood back to work. First District Court of Appeal Justice Ignazio Ruvolo said he had a “fundamental problem” with Haygood’s argument that she was not subject to civil service rules, since she had the right to appeal her termination and had signed a probationary agreement. “We have a situation that strongly suggests the appointment is meant to be civil service,” Ruvolo said during oral arguments. In a spirited discussion that went into overtime, the court dove into the unresolved issue of who has the power to fire and hire the city’s elections director. Attorney Jerome Falk Jr., who represented the city Elections Commission that pink-slipped Haygood April 22, told the three-judge panel that Haygood was a civil service employee and subject to its rules. Falk, a name partner at Howard, Rice, Nemerovski, Canady, Falk & Rabkin, said Haygood had signed a probationary agreement, which permitted the commission to fire her without cause or a public hearing. But Haygood’s attorney, Vernon Grigg III, argued that Haygood should be viewed as a department head and therefore exempt from the usual civil service procedures. He said that according to the city’s charter, his client could only be removed for cause with an appeal to the Civil Service Commission. Grigg, of DeMory & Grigg, said that Haygood had been appointed to a five-year term and was fulfilling her duties when she was fired after a closed-door Elections Commission meeting. Commissioners never gave their reason. If the appellate court upholds Judge McBride’s reinstatement of Haygood, the Department of Elections could be thrown into turmoil once again. The commission that oversees the operations of the department would be saddled with an employee it discarded and fought to keep out of office. Since her departure, Jon Arntz, the department’s operations manager under Haygood, has been the acting elections director. McBride also ordered the city to continue to pay Haygood her $120,000-a-year salary and provide her with benefits during the appeals process. Acting Presiding Justice Paul Haerle questioned Falk on whether voters knew when they passed Proposition E in the 2000 election, creating the new commission, that it would have the power to terminate the current director. “If they have the power to appoint [a director,] then they have the power to terminate, too,” Falk replied. “You can’t have two elections directors.” But it was Ruvolo who zeroed in on the probation question and whether Haygood was still subject to temporary status. “The probationary period is part of the hiring process,” Ruvolo said. “The selection or hiring [process] doesn’t end until the probation ends.” Justice James Lambden also questioned how Haygood could not know she was a probationary employee when she signed the one-year agreement. Haygood was hired Aug. 7, 2001, and served nine months before her termination. Grigg disagreed that his client was subject to terms of probation, since Mayor Willie Brown appointed her to a five-year term under procedures that predated Prop E. The attorney said the set term was to ensure that there would not be a revolving door of directors fired for undisclosed or political reasons. After Haygood was fired, she appealed to the Civil Service Commission, which gave Haygood her job back. The Elections Commission appealed the case to the San Francisco Superior Court. McBride agreed with the Civil Service Commission when he reinstated her. Attorney William Terheyden, who represented the Civil Service Commission before the appellate panel, argued that the city charter made no provision for the elections director to be subject to civil service rules. The Election Commission’s “whole case is based on implication,” the Littler Mendelson partner said. “The wording is just not there.” Normally the appellate court gives each counsel a half hour for argument. Haerle opened the hearing by announcing each would be given 40 minutes. Both sides went into overtime with the blessing of the justices.

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