04/02/1990 (2)
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Mr. Kohout has applied for a job-connected disability pension due to knee
injury suffered while trying to arrest someone in his duty as a police officer.
He has had surgery to the knee and has had therapy but has not recovered full
strength of the leg. Due to trying to cope with the injury to the left knee has
caused some damage to the right leg as well. Mr. Kohout was employed by the City
on January 7, 1985 and has been participating in the pension plan since that
time.
Trustee Regulski moved to accept the recommendation of the Pension Advisory
Committee. The motion was duly seconded and carried unanimously.
ITEM #5 - Request for Pension:
The City Manager Presented the recommendation of the Pension Advisory
Committee that the employee(s) listed below be granted a non-job-connected
disability pension under Section(s) 26.34 and/or 26.37 of the Employees' Pension
Plan.
Edward W. Voiland
Mr. Voiland made an application for a job-connected disability pension from
the City of Clearwater. He claims that stress, due to his job, are the reasons
for his disability and has provided some letters from doctors stating that they
feel his job aggravated his hyper-tension, ulcer conditions, etc. The Pension
Advisory Committee has determined that Mr. Voiland meets the requirements for a
non-jab-connected disability pension. Mr. Voiland was employed by the City on
January 23, 1967 and began participation in the pension plan on that date.
Charles Castagna, attorney representing Mr. Voiland, stated that Doctors
Kedan and Smitherman have offered opinions that Mr. Voiland's disability is job
related. He stated an independent medical examination required by the Pension
Advisory Committee was never completed. He stated that although the Pension
Advisory Committee has recommended a non-job-connected disability, he feels the
Trustees have the authority to grant a job-connected disability. He further
stated that the Pension Advisory Committee does have the authority to have a
hearing for findings of fact and requested that if the Trustees would not grant
the job-connected disability pension that the request be remanded to the Pension
Advisory Committee for an independent medical examination or hearing.
John Nicholson, representing the Pension Advisory Committee, stated they
are not questioning Mr. Voiland's ~isability but whether or not it is job-
connected. He stated Mr. Voiland has an extensive medical history even prior to
the City employment.
Mr. Voiland stated his ulcer condition is not job related and that he has
20% disability from the armed services for that condition. He stated however it
is the hypertension and other ai,lments that have been caused by his 23 years of
employment with tne City.
Trustee Fitzgerald moved to remand the request to the Pension Advisory
Committee for additional consideration. The motion was duly seconded.
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Discussion ensued regarding stress and whether or not it could be
considered a job-connected disability in the same manner as a knee injury is
considered. Upon the vote being taken, the motion carried unanimously.
Attorney Castagna requested clarification regarding whether or not this was
remanded to the Pension Advisory Committee for a hearing or just to reconsider.
It was stated it would be up to the Pension Advisory Committee to determine what
was needed.
ITEM #6 -Request by Unclassified Emplovee to be desianated as permanent:
Linda Mielke
On November 13, 1989, Library Director Linda Mielke, an unclassified
employee submitted a memorandum to the Personnel Director requesting that a
determination be made to whether her exclusion from the pension plan was proper.
The Pension Advisory Committee considered this and it was their consensus that
this was an issue to be addressed by the Trustees and they made no
recommendation. Section 2.44 of the pension plan provides that the pension plan
is hereby created for employees of the City of Clearwater. Section 2.45 provides
that "All permanent employees of the City of Clearwater shall be required to pay
the assessments provided in this pension plan and are required to participate in
the fund hereby created. The Trustees of this pension plan and fund shall have
the right to determine, from time to time, which employees are permanent
employees of the City of Clearwater provided however, that all employees covered
by the Civil Service Ordinance shall be considered to be permanent employees for
the purpose of the pension plan."
Historically, unclassified employees have not been considered permanent
employees for the purpose of participating in the plan except for those who were
initially plan participants, as a result of previous classified civil service
status, have continued to participate in the plan. Unclassified employees of the
City, who are not in the pension plan, receive a 6% contribution to the ICMA
deferred compensation program. Staff recommends the request be denied.
At the Trustees meeting of January 29, 1990, this item was continued to
allow staff to compile additional information regarding the financial and legal
impacts. An opinion was sought from Harrison C. Thompson, the City.s outside
labor attorney, regarding Mrs. Mielke's request. His opinion states that 1)
designation of Mrs. Mielke as a permanent employee would so designate the
position itself thus mandating pension participation of any person occupying the
Library Director position.
2) The issue of disparate impact is real and the designation of one
position from a previously ineligible group of positions as being able to
participate in the pension program might lead to the requirement of including in
the pension plan all persons and positions in the unclassified service.
3) Unclassified employees of the City are at will employees, appointed by
the City Manager and designation as a permanent employee for pension
participation purposes might infer the existence of a property interest in the
job therefore by eroding the City's at will rights.
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Staff is concerned that if these impacts were to take place, it would
substantially affect recruitment of individuals for these positions and also
would erode the at will appointment by the City Manager of people in the
unclassified section.
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Mr. Deignan, Finance Director, has indicated an inclusion of the Library
Director as an individual would have no more nor less impact to the plan than
adding another employee provided there is no retroactive credit except that the
potential of the inclusion of an additional employee who might experience a job-
connected disability might place a greater impact on the plan.
Therefore, it is still staff's recommendation that unclassified employees
not be designated as permanent for the purpose of pension plan participation.
Mrs. Mielke said she had carefully read the opinions of Mr. Thompson and
Mr. Deignan but did not see that there was a good reason not to admit her to the
plan.
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Discussion ensued regarding the impact on the plan of setting this
precedent and whether or not it is appropriate for individuals, at this level, to
be in the plan. Mr. Laursen, Personnel Director, also indicated that we are
currently in a lawsuit with the AARP regarding the previous age 45 limitation in
the plan and he was concerned that any changes to the plan at this time would
impact that suit. It was state~ that until definite changes are made in the
pension plan, it is the Commission's desire not to cloud the plan further.
Trustee Regulski moved to deny the consideration of classifying Linda
Mielke as a permanent employee for the purpose of pension plan participation.
The motion was duly seconded and carried unanimously.
ITEM #7 - Other Business:
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John Nicholson, representing the Pension Advisory Committee, requested the
Trustees grant a non-job-connected disability pension for Mr. Voiland until such
time the Pension Advisory Committee can come back with a recommendation regarding
the job-connected disability request. It was emphasized that this would not
jeopardize Mr. Voiland's request for a job-connected disability.
Trustee Nunamaker moved to grant a non-job-connected disability for Mr.
Voiland. The motion was duly seconded and carried unanimously.
Attorney Castagna, now representing William Harvey, stated he was seeking
guidance regarding Mr. Harvey's ability to seek employment as a dispatcher for an
EMS company. He stated Mr. Harvey had been with the fire department for 17 years
and had served as a paramedic. Section 2.56 of the pension ordinance prohibits
employment in an occupation or line of work which caused the disability. He
stated that dispatching is not the same as fire fighting and that Mr. Harvey
would like to pursue being an emergency manager dispatcher or instructor in the
emergency area and he is seeking permission to accept a position and also
requesting clarification of the policy.
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Discussion ensued regarding what was meant by similar job. Mr. Nicholson,
representing the Pension Advisory Committee, indicated that being a dispatcher is
pa~t of the EMS system and that the duties of a dispatcher is to advise regarding
procedures over the phone. He stated being a dispatcher or instructor in
emergency techniques is similar to the job Mr. Harvey held as a fire fighter.
Discussion also ensued regarding reports that police officers are accepting
jobs as security guards and whether or not this should be prohibited. It was
indicated that it is the Pension Advisory Committee's position that they should
be.
Mr. Harvey stated the job in question is with Medic One as a dispatcher.
The job does require physical agility similar to a fire fighter and requires
dispatchers to ride and work in the streets once a week. He stated, however, in
his case, a waiver has been drawn up stating that he would not be required to do
phys ica 1 work.
Mr. Harvey received a job-connected disability from the fire department due
to a knee injury.
It was stated staff was unaware that this request would be coming forward
and it needed more study before staff could make a recommendation to the
Trustees. It was indicated this is on the Pension Advisory Committee's agenda
for discussion. Clarification is needed regarding what the definition of similar
is and who is to make the decision regarding this type of request.
Attorney Castagna indicated that he is requesting direction for Mr. Harvey
and that he felt the Trustees were penalizing individuals for being disabled. It
was indicated that at a job-connected disability provides for 75% of the salary
to be paid to the individual and that allowing him to work in a similar job would
be a hardship on the system.
It was requested that some flexibility be allowed as now people are being
affected by this policy and it was indicated that staff is not ready to agree to
that as they did not have all the information needed. No general direction was
provided by the Trustees in regard to this issue.
In response to a question, it was indicated that if a City employee does go
out on pension, they can not collect that pension and have another job with the
City.
ITEM #8 Adjournment:
The meeting adjourned at 9:50 A.M.
ATTEST: ft,_,~[ ~~.
PFM 04/02~ City,Clerk
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