The Spring Lake Park City Council Oct. 21 voted 3-2 against terminating its building official, fire marshal and code enforcement director’s employment.
Building Official Barry Brainard was accused of neglecting his duties as fire marshal and falsifying his monthly code enforcement reports in an investigation report on employee misconduct by City Administrator Dan Buchholtz at a special hearing prior to the council meeting.
Brainard had an opportunity to defend himself and bring forward witnesses during the open hearing.
Investigation report on employee misconduct
Buchholtz spoke first, relaying his findings on Brainard’s misconduct.
On Sept. 26, Buchholtz and Spring Lake Park-Blaine-Mounds View Fire Department Chief Nyle Zikmund had lunch. The two of them had not planned to discuss Brainard’s work as fire marshal specifically, but it came up in conversation.
According to Buchholtz, Zikmund shared the following concerns at lunch: Brainard didn’t follow through on fire code violations, didn’t communicate regularly with the fire department and didn’t attend fire marshal meetings.
“Fire Chief Zikmund stated that he wanted the city to consider contracting fire marshal duties to the SBM Fire Department due to Building Official Brainard’s failure to effectively perform those duties,” Buchholtz said.
In an interview after the Oct. 21 hearing, Zikmund, who was not present at the hearing, said that he did bring forward concerns at lunch, but many of them were not unique to Brainard.
“We’re looking to improve the fire inspections and have a more robust program, and he’s a one-man shop down there,” Zikmund said, calling Brainard’s job “pretty overwhelming.”
In response to questions about Brainard not following up on fire code violations, Zikmund said, “That’s not unique to Mr. Brainard. That’s an issue in all three cities ….”
Zikmund went on to say that Brainard does follow up, but not as fast as he would like, similar to other fire marshals with the department.
Attendance records show that in the past two years, Brainard was absent at 16 meetings that he reported attending to the council.
Blaine Fire Marshal Bob Fiske began incorporating fire inspection items in his regular staff meetings instead of hosting special fire inspection division meetings because “no one from Mounds View or SLP were showing up,” he wrote in correspondence with Brainard shared at the hearing.
On Oct. 2, Buchholtz met with Brainard to discuss matters.
“Building Official Brainard admitted that he did not attend the SBM fire marshal meetings. … He stated that he included the meetings in his report to give the appearance that he was working in the fire code area,” Buchholtz said at the hearing.
Councilmember Larry Raymond asked whether there was anything in Brainard’s personnel file that indicated previous “incompetence.”
“Other than some training certificates and a performance evaluation from many years ago, there’s very little in the personnel file documenting performance at all,” Buchholtz said
Apologetic, looking for fair consequences
Brainard spoke at length about “friction” between himself and the fire department, which exists because he is not a firefighter and his first priority is the city, he said.
More than once when he attempted to attend fire marshal meetings, on arriving, he would discover that they were canceled with no advance notice, Brainard said.
He continued to include the meeting dates on code enforcement reports because he “did not want to burden the council with the friction that exists between the SBM chiefs and myself, the fire marshal here in Spring Lake Park,” according to Brainard.
“Whether the meetings were held … is really irrelevant,” Buchholtz said. “The fact is that you placed them in your code enforcement report and shared them with the city council and read them on television and made them part of the public record – that’s the issue.”
Brainard apologized multiple times and continued to emphasize that he did not waste taxpayers’ money; when meetings were canceled he returned to city hall and resumed work. “I was not out golfing or at home,” he said.
Drawing attention to his work, Brainard asked the council to consider all that he has done for the city. “I incorporate my fire marshal duties with my building inspections every day,” he said. “I have served the people of Spring lake Park for over 13 years now and know that I have served them diligently.”
Terminating him would negatively affect the city, Brainard said.
Employees used to be given “three strikes,” he said, highlighting one employee who was without a license after a DWI charge. This individual had to be driven by others to job sites. “I believe I deserve the same kind of compassion,” Brainard said.
Five men, Spring Lake Park residents and business owners, testified on Brainard’s behalf: Al Samson, Vince Smith, Thomas Elm, Robert White and Bruce Carlson.
All heralded Brainard’s performance as a building official.
Smith, chairperson of the planning and zoning commission, said that although he and Brainard had disagreements, he does the right thing for the city. “Think of the battles he’s fought for us …,” Smith urged the council.
Brainard confronted Elm about an ordinance violation the day he lost his job, which led to a rocky start for the two of them. Brainard went above and beyond to help him with a roofing problem that turned out to be a siding issue, Elm said. “I think what we’ve got is a diamond in the rough,” he said. “People make mistakes and people are better for the mistakes they make.”
Elm cited a lack of annual performance reviews as a larger issue. “I think we have a major gap here in terms of how we manage this office and Barry is paying the price,” Elm said.
Councilmembers Larry Raymond and Jeanne Mason felt strongly that Brainard deserved a second chance, while Mayor Cindy Hansen and Councilmember Bob Nelson were in the opposite camp, voting to terminate his employment. Council Member Bill Nash was more torn.
Raymond found that the fire code infractions were all very minor and didn’t pose a public safety threat to the city.
“One thing is wrong; many things are right,” Mason said.
But Hansen could not overlook Brainard’s behavior. “To me, a lie is a lie,” she said in an interview after the hearing.
“I feel with Cindy, I feel betrayed,” Nelson said. “I don’t think apologies cut it here.”
Hansen was concerned that not terminating Brainard sends the message to other city employees that they can “do whatever they want,” she said in an interview.
Hansen made a motion to terminate. She and Nelson voted for termination. Raymond and Mason voted against termination and after a long pause, Nash did the same.
“I’m actually very torn about this, Barry,” Nash said before the vote. After the preliminary accusations were heard in closed session Oct. 7, “I was up the entire night thinking about this,” he said.
Now, Brainard’s punishment is in Buchholtz’s hands. It could be anything from probation to suspension, but not termination.
At press time, the discipline had not been finalized, Buchholtz said.
Both he and Brainard do not think the hearing will impact work at city hall.
“We’re professionals and we’ll learn from the outcome of the hearing and move forward,” Buchholtz said.
Hansen is hopeful that the hearing will not affect the council’s future interactions, but for now, the council’s dynamics have changed, she said.
Zikmund planned to meet with Brainard the week after the hearing to discuss future expectations. He had no comment on the hearing’s outcome. “He’s not my employee and it’s not our business,” he said.
There has not been an open disciplinary hearing in the 38 years Jeff Carson has served Spring Lake Park as city attorney, he said.
Olivia Koester is at [email protected]