03/19/1985
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Proceedings of Civil Service Board Meeting held March 19. 1985
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PreBen t:
Nugent Walsh. Chairman
Mary D. Kane, Member
Dr. Joseph Carwise, Membe~
Torn Chenoweth, Member
H. M. Laursen, Personnel Department
Jeffrey E. Harper," "
Jane Craig, II
APPf!()\lED
Gerald Weimer. City Managers Department
Frank Kowalski. Legal Department
"
Visitors: Gregory Smith
Muhanunad Rahim
Cary Singletary
Ray Parke
Martha Lopez
Jim Moore
Michael Stuart
Sid Klein
Gayne1l Brumback
R. M. Brumback
Teresa Murphy
Doug Wlasiuk
c. S. c. r.~:,JUTES
5" \.:n \85
Alice Bush
Jecm Cesta
Van Horton
Skip Kroeger
Bud Meyer
Sgt. William Hebert
Chairman Walsh called meeting to order.
Board discussed, .Minutes of the meeting of January 15, 1985. Mrs. Kane noted there was
an omission of the Rule Number in the third paragraph (it should reference Rule 14).
Additionally, Mrs. Kane noted that when there is a Hearing Officer's Report, the
entire proceedings of the meeting should be included in the Minutes. Chairman Walsh
indicated his concern that due to the absence of two Board Members at tile last meeting,
.' they needed to be fully informed of the proceedings. He had, therefore, prepared and
mailed to each member, prior to this meeting, a written copy of the tape (of that
portion of the previous meetinm relating to Mr. Parke's administrative hearing. He
provided the Personnel Director with the original of that handwrltten transcript for
filing. Chairman stated his concern was that the Suspension Notice to Mr. Parke cited
that Mr. Parke had violated Rule 14. Section 1 (b). being wantonly careless and
'. negligent; that the Hearing Officer appointed to this case stated the City had char.ged
Mr. Parke with violating' Rule 14, Section 1 (b) and that the City had to prove this
charge; that Rule 14, Section 1 (b) does not make any reference to the charge (of
being wantonly careless or negligent); and no one had taken the time to check the Rules
and no one saw that the wrong provision of the Rule had been cited. He suggested the
Minutes should be updated to include the full transcript that he had submitted to the
Board Members. Mrs., Kane moved that the Minutes be appIoved vith the corrections noted.
Motion died for lack of a second.
Dr. Carwise moved
by Mr. Chenoweth.
Mrs. Kane and Mr.
meetir~g .
that the Minutes as sent out by the City staff be approved. Seconded
Motion failed with Dr. Carwise and Mr. Chenoweth in favor, and
Walsh opposed (2-2). Minutes were deferred until the next regular
Board discussed Agenda Item Number 2 - "Review of the Record in the Hearing in case
of City of Clearwater vs. Raymond W. Parke and Board action." In response to questions
from the Chairman, Personnel Director advised that nothing had been filed by the City
or the employee relative to this matter. However, he did have copies of the Exhibits
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3.;'~.,' In response to a question from Mr. Chenoweth, Frank Kowalski advised that the City
,"", Commission contracts with the State Department of Administrative Hearings and the (DOAH)
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. assigns a Rearing Officer when needed -- the City has no input into whom the DOAR assigns
~:::,O' to, the cases. Mrs. Kane stated the Ordinance says the Commission will submit a list of
:~L:'" ' five names to the Board who will select a Hearing Officer. She indicated she attended
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- 2.-
Civil Service Board Meeting
March 19. 1985
of the case far the Boardls review. Chairman Walsh stated he was concerned that over
two months had passed since il: had been indicated that there was a defect in the charge
cited in the Parke Suspension (i.e., quoting the wrong offense) and the City hod taken
no action to cure (amend, modify or clarify) this defect. Under the circumstances, he
indicated the Board could consider rejecting the Hearing Offfcer's Recommended Order on
the basis that the proceedings upon which the Findings were based did not comply with
the essential requirements of the law. He indicated that because of the error in quoting
the wrong offense, the City had not proven the offense that the employee was charged with.
Mrs. Kane moved that, since the Hearing Officer has quoted wrong the Civil Service Rule
aud the wrong violation, that we cannot accept the Suspension as so stated by
the Hearing Officer. Chairman Walsh asked Dr. Candee to accept the Chuir so he could
second the motion; Dr. carwise declined. Chairman asked Mr. Chenoweth to accept the
Chair; Mr. Chenoweth declined. Motion died for lack of a second.
Dr. Carwise moved to uphold the Findings of the Hearing Officer. Seconded by Mr. Chenoweth.
During discussion, Chairman advised that it would be inappropriate for Chief Assistant City
Attorney Frank Kowalski to comment in that he indicated that having represented the City
Manager in the disciplinary action before the Hearing Officer he would be speaking from
an advocacy position for the Manager rather than as a neutral advisor to the Board. Chair-
man read from a section of the Ordinance that "....the language of this sub-section shall
not be construed to grant or othp.rwise permit the Civil Service Board to re-open any
hearing or to COl1Dl1ence taking, or re-taking of any testimony or evidence." Therefore,
Chairman deemed it would be inappropriate for Mr. Kowalski to speak from an advocacy
position. Members voted on motion as follows: Aye: Dr. Carwise, Mr. Chenoweth; Nay:
Mary Drew Kane. Nugent Walsh. Motion failed 2 - 2.
Members discussed Agenda Itemi1(;l - "Issue of Appointment of Hearing Officer.1I
Personnel Director provided Board Members with a copy of n memorandum received from the
City Manager relative to this issue. He sun~arized the response as reflecting that the
City Mnnager felt the use of State Hearing Officers was effective and that the ~Ianager did
not feel it necessary to ask the City Commission to change their long-standing policy in
this regard. Copy of the City Manager's memorandum was provided to Mr. Singletary,
attorney for Sergeant William Hebert.
Chairman related that the issue of appointment of a Hearing Officer was a continuing
conflict, which had caused the Board to lose its previous Chairman~ Mrs. Herman. He
related that the provision of the Ordinance listed first providing for the appointment
of a Hearing Officer through the submission of five namns to the Board by the
City Commission from which the Board would appoint a Hearing Officer, should prevail.
Chairman.related that if the City Commission gave five names to the Board from which
they could select a Hearing Officer that no one could say that the City -- which takes
the action on suspension or dismissal of the employee - influences who is appointed as
the Hearing Officer. This would provide a truly independent Hearing Officer.
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Morch 19. 1985
Mrs. Kane moved that our Personnel Director subm.tt to 'the City Manager that the City
Commission submit to the Civil Service Board. It lint of not leBs thon five names
for the purpose of selecting a Hearing Officer 1n accordance with Ordinance 1831.
Motion died for lack of second.
Tom Chenoweth moved that we continue the present pr.ucticc of contracting with the State.
Seconded by Dr. Carwise. Chuirman recognized Cary Singletary. attorney for two
employee clients. relative to the issue of the appointment of n Hearing Officer.
Mr. Singletary identified himself as the attorney for William Hebert and Teresa Murphy
and requested on their behalf that the Board change its present system of appointing
Hearing Officers and follow the recommendations of Mr. Walsh and Mrs. Kane to select a
Hearing Officer from a Ust of five names submitted by the Commission. He related in
support of his request three arguments: (1) the statute (Ordinance 1831 referred to
by Mrs. Kane; (2) that Hearing Officer Ayres' repo~t (on Ray Parke) was terribly incorrect
and he did not have confidence in Hearing Officer Ayers or anyone else working under that
system who did not take the time to review the merits of the case; and (3) a system where-
by the City Manager charges the employee and the Assistant City Attorney signs the charge
and then prosecutes the case before the Hearing Officer is not right. Question was called
and the Motion to continue the current practice of contracting with the State failed on a
2 - 2 vote (Favor: Chenoweth, Carwise; Opposed: Kane, Walsh).
Mr. Kowalski advised the Board that the Legal Office has previously requested a Hearing
Officer to heaT the cases of Patrolman Murphy and Sergeant Hebert. and that unless
he heard from couns"!l he would not withdraw that request for a HeaTing Officer. Mr. Walsh
noted it was a matter of public record that Mr. Singletary has expressed his concern
over this matter, there has been concern by this Board over this; and if there is any
Hearing Officer appointed in the interim period of time, that counselor other aggrieved
persons will then be able to say the hearing was not properly conducted. Chairman noted
that the contractual agreement with the State had been signed in the 1970's and suggested
the matter should be brought before the new City Commission.
Personnel Director advised the Board that Mrs. Iacono had contacted him recently and
indicated she wished to pursue a grievance before tbe Board. However. her physical
condition precluded her doing so at this time. Mr. Weimer advised the Board that the City
would waive any time factors on this case so the employee could present her grievance in
the future. Chai1iman asked Director to continue this item.
Mr. Walsh indicated the next item was status report on the ramifications of the seniority
issue in the Fire Department. As a status report, no action could be taken but dis-.
cussion would be permitted. Skip Kroeger, IAFF President, stated he had read the report
but had difficulty in obtaining a copy of it. Assistant Chief Bud Meyer indicated he
was available to answer questions about the report and that it reflected the position
held by the Fire Department in earlier grievance presentations.
Mr. Kroeger stated he wished to make three comments: (1) Page 5 of the report contains
an obvious typographical error in example #1; (2) the Fire Department has never had a
surplus of paramedics and never used a bumping proced~re and (3) regarding vacation
selection, when an employee transfers to the Fire Department from another City depart-
ment. selection of vacation by that individual is based on the Contract which specifies
selection is based on departmental seniority, not City seniority. Mr. Van Horton, Vice
President of the IAFF stated he failed to see the correlat:ton between the reference to
assignment pay (for motorcycle officers in 1959) and lead pay approved by the Board in
1969 and any special assignments of Firefighters as Biomedics. He related the Board
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Civil Service Board
March 19, 1985
has never addressed assignment of Firefighters lIS 8iomcdics. He further noted that
on Page 4 of the status report reference is mnde to Civil Service Rule 10, Section 4
snd that rending that Rule he believes that Hcniority haa been determined to be the
controlling factor.
Chairman asked Director to provide copies of materials that pertain to employees to
their respective bargaining unit. Mrs. Kane expressed that it was previously determined
that copies of such materials should be provided to all three employee groups. Chairman
asked Director to continue the Status Report to the next meeting. Chairman Walsh
congratulated the Police Chief for his innovative proposal for alternative discipline.
Jim Moore, Second Vice-President of FOP Lodge 10, stated that the FOP felt this was a
good proposal when it was first brought up; however, some things have been added to it
that they were not aware of and now the FOP is no longer in agreement with it. Chairman
asked Director if anything had been added to this item since it was provided to the
Board. Director advised that no changes had been made in the interim; this was what the
City Manager had detennined he wanted implemented and no changes have since been made.
Mr. Chenoweth noted that the materials noted that anyone could request a public hearing.
Mrs. Kane related that the City is now covered by Wage & Hour laws of the federal
government, and that a check should be made to determine the legality of the proposal.
Mr. Weimer indicated that when the proposal was first made, the legality had been
checked and it was determined to be acceptable. Mr. Kowalski noted that the recent
Supreme Court ruling needed to be reviewed to see if changes would be required;
ordinarily the FLSA would require paynlent for hours worked but there may be some
exemptions where elections are permitted by employees as to disciplinary action. He
recommended that the FOP opposition and the Supreme Court ruling should be reviewed by
tbe City. Mike Stuart FOP President said the FOP supported the proposal originally,
and still does except for the requirement to work a day and a half for each day of
suspension.
Chief Sid Klein assured the Board that the legality of this issue had been researched
thoroughly, although he was not aware of the recent Supreme Court ruling. He noted
the only point of contention between the Police Department and the FOP was the issue
of a day and a half for a day (suspension). His original proposal was a day for a day
and he deferred to the Personnel Director as to how the change was made. Director
related'that several changes from the original concept submitted were proposed during
various staff review meetings of the proposal. He identified staff as being represen-
tatives from the Chief's office, as well as Mr. Weimer, Mr. Kowalski, Mr. Harper, and
himself. Mike Stuart stated the day and a half proposal came from the Director who sent
a memo to the Chief on that subject. Chairman indicated his concern was that the Chief
proposed something with the full concurrence of the bargaining unit and then suddenly
it was changed without their knowledge. Director indicated he did not advise the FOP
of any of the changes proposed during staff review, however, the proposals were returned
to the Police Department for their input and they concurred with it. Chief Kline
indic~ted that he h.~d been advised of the change, and that while he did not agree with
it, he accepted' it to get the basic concept approved. Chief Klein related the value
of the proposed' disciplinary action process, i.e., preserves the full pay of the employee
and preserves productivity for the department. An explanation of the process was made.
Chairman indicated this item would be taken under consideration by the Board and it
would be appropriate for the City Attorney to determine the legality of this proposal
in light of the recent Supreme Court decision. If the City and the FOP are unable to
resolve the problem of I to 1 or 1 to l~ days, it would be appropriate to hold a public
hearing. Mr. Weimer, Chief Klein, and Michael Stuart expressed no disagreement to
this statement.
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Civil Service Board ~tcatim~
March 19, 1985
Director related to the Board that the only report on the Suit of tlope W1asiuk was
that the parties would be presenting their arguments before the Court in the next
couple of weeks.
Mrs. Kane expressed her sorrow that the Board Hembers would not agree on items and
that it was unfortunate that employees come to each meeting and no action is taken
and they have to come bacl!;' again. She asked the Director to contact Mr. Hosch to see
if he would be able to carryon his duties.
Mrs. Kane also related that she had attended the Parke Hearing. She expressed that the
Hearing Officer was very ~ude and she was disturbed that the Superintendent of the
Gas Division was in the Hearing and also the Asst. Utilities Director, while Mr. Parke
had no counsel. She stated a witness later expressed concern to her about his job
security when he saw the Superintendent in the Hearing. This is the reason she felt
concern about the appointment of a Hearing Officer.
Chairman asked if any citizens or employees would like to be heard. Cary Singletary,
attorney for William Hebertt submltted a Motion to the Board (Motion to Dismiss Charge
and Order Back Pay) relative to the suspension of Sergeant Hebert. He related
on 12-19-84 Frank Kowalski prepared and directed to Chief Sid Klein a memorandum
indicating a Notice of Suspension to William Hebert and how the Notice should be
served. On 12-21-84 Sergeant Hebert provided to the City Manager, a responae to the
Suspension. However, the City Manager or his designee did not respond to Sgt. Hebert
within the ten day period required under Civil Service Rules; the Assistant City
Manager (City Manager's designee) responded under date of 1-2-85 that Hebert's
explanation and answer were not acceptable -- this was received by Sgt. Hebert on
1-6-85. (He served the two day suspension on the 4th and 5th.) Mr. Singletary stated
Hebert actually served the suspension prior to getting a response from the City Manager.
Mr. Singletary related that the employee had appealed to this Board for an evidentiary
hearing and that he had requested there be a Hearing Officer -- not Mr. Ayres, but
from a list of five names submitted by the City Commission -- and while this is
pending he received a notice from Mr. Ayers that a Hearing on Sgt. Hebert's case would
be held on April l7t 1985. He said no contact had been made with him relative to the
hearing and that there were serious due process concerns with this entire matter. He
asked that the charges and suspension be dismissed as the City did not respond to the
employee in the ten day period required and that Sgt. Hebert be given his back pay,
and that any reference to the item be removed irom his file to the eRtent permitted
und~r public records law. He further noted that Sgt. Hebert had received an over-all
evaluation of exceptional, however, this was reduced to Very Good by the Police Chief
pending resolution of this matter. This represents a further penalty to Sgt. Hebert
and the charges should be dropped and his exceptional evaluation reinstated. If the
Board did not take the actions he requestedt then he asked that the Notice of Hearing
before Mr. Ayres be cancelled until it was determined if another procedure for the
hearing would be effected.
Chairman asked Chief Assistant City Attorney why Mr. Singletary had not been contacted
relative to the scheduled hearing? Frank Kowalski advised that standard operating
procedure is when an appeal is received a request to the State is initiated.
Mr. Singletary summarized his position by indicating that he was seeking a motion from
the Board that the charges be dropped as the City failed to comply with the mandatory
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- 6 -
Civil Service Board Meeting
March 19. 1985
time requirements of the Rules. Chairman asked the City for input; Frank Kowalski.
as representative of the City in this matter. stated this was neither the appropriate
place or time for Mr. Singletary's motion to be considered. He had not been served
with a copy of the motion; the matter was not on the Agenda before the Board; and the
motion sbould be directed to the Hearing Officer who can not only hear the caBe. but
also can rule on procedural matters. He noted that with respect to the sequence of
dates noted by Mr. Singletary that one of the days in question was January 1st. and
this may have some impact on the matter. Mr. Singletary related his serious obj~ction
to Mr. Kowalski switching roles from advisor to the Board to an advocate for the City
Manager; he stated the Board should have its own attorney. lIe indicated he did not
serve a copy of his motion on Mr~ Kowalski because he did not know what Mr. Kowalski's
role was in this matter; and that it was unfair to cause an employee to go to the
expense of going through a full evidentiary hearing in a case which was quite
complicated -- involving racial issues, civil rights issues -- when it is clear from
the record that the City exceeded the time limits. Further. as a result of what
Mr. Ayres wrote in the Parke case, he has lost confidence in anything Mr. Ayers might
say in the examination of a case.
Mrs. Kane moved to dismiss the Suspension, based on the fact that the City Manager
did not follow the time limits of our Civil Service Rules and that he be given his
back pay instead of having to go through a Hearing Officer. Motion died for lack
of second. Mrs. Kane moved that we ask. and the City Commission provide us. with
outside legal counsel :f.n this case. Motion died for lack of second. Mr. Walsh. as
Chairman. asked that the Personnel Director take the necessary steps for this item to
be put before the City Commission for an attorney to be appointed pursuant to Section
25.04 (c) for representing the Civil Service Board in the matter of the suspension of
Sergeant. William Hebert.
Mrs. Kane requested that the Personnel Director not make any requests for a Hearing
Officer without notice to the Civil Service Board. Chairman asked that the record
reflect Mr. Singletary's Motion to Dismiss Charges and to Order Back in regard to the
suspension of Se~geant Hebert was accepted by the Board and the Personnel Director
is requested to make copies for the City and for Mr. Hosch.
Mr. Singletary expressed a reluctance to recognize the Hearing Officer in the Hebert
case by filing any kind of motion with him. In response to, questions from the
Chairman. Mr. Weimer indicated that the City would ask the"Hearing Officer for the
continuance.
Mr. Singletary asked to speak relative to his representation of Police Officer
Teresa Murphy. He requested that a State Department of Administrative Hearings
Hearing Officer not be utilized for this case indicating he is opposed to this
process and requests that a Hearing Officer be provided from a list of five names
from the City Commissig.n. Personnel Director indicated that in response to a request
from Mr. Singletary on behalf of Teresa Murphy that a hearing be scheduled. He had
already requested the City Attorney's .'office to contact DOAR for a Hearing Officer.
consistent with procedures followed since 1978.
Mrs. Kane asked if there was anything in the City Commission Minutes where the City
Commission had given the authority to the City,Attorney or Assistant City Attorney
to provide the Hearing Officer without the Civil Service Board appointing from a list
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- 7
Civil Service Board Meeting
Mal'ch 19, 1985
of five? She related, the law says the City Commission will submit a list to the Board.
Chairman ,asked Mr. Kowalski to address Mrs. Kane's request and that the City Attorney
give the Board the details, i.e., copies of the Minutes of the City Commission relative
to (a) authorized contracting with DOAH; and (b) if not included in that 'action, where
the City Conmission has designated a. certain City authority to act in their stead' to
make.s request for an Administrative Hearing Officer. He noted it appeared that the
'contracting with the State, and requesting from the State for a Hearing Officer has to
be done by the City Commission.
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rf:a 'designate makes the
Commission.
request, this would have had to have been authorized by the
adjournment, seconded by Dr. earwise and motion carried.
Director
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