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05/21/1985 . i.:..:. ~.. . . .. . > . ,. I' ,. . ,. ,,:;. , 'ri;~. . . , .t\'. ' d ( ,l~ . :,,': . .~ ~. "', ' ",:, , '" ,~. {'f'11.~ ....~, ' n' '~~ ~ I . . ,'.">, .'j. .~:'... , "~. ' ). :. ", ~~. ~~; ,~.,. . :l' ~". .- ,..<'3.'.< .f ~: '..: ., ", .. ~ ~ ,I ;, ' 1"'.' , ," ;"'" 'J" If, :.',' ...;, .'. ' :::..', " 1;1\ : ~<.., f;:,..;.::' ~~:;;,;' ',<7)r0:: :.. '.\:J5/ ~;,l?;?j::..' ,;' :,j!:\t,'~,..' ~t;;</ . Jl\/", : ";' : ~ 'l' , l, ~~f{;;'i ~~~~>~,,, .. " ,~;<-:" ~' ~~.r;.' 'c. ". , T ~::,~,,:,~" ~~~~'J . !,ri ~. ,., .," t<",a,.1 ~.,.. ': ,l>,".' . ~Y":i' 1," ~ . , . ~ Proceedings of Civil Service Boord ~lectinB held May 21, 1985 Members Present: Nugent Walsh Mary D. Kane Tom Chenoweth Albert Vellucci APpnOVED C. oS. D. MINUTES i~ It. ;85 Visitors: Cary Singletary, Attorney Teresa Murphy William Hebert Alice BUBh Jean Cesta Ray Parl~e .; /'/ L,/ Miles Lance, Legal Department Mike Laursen, Personnel Department Jane Craig, II II Chairman Walsh opened meeting by introducing the Board Members to the audience. He related that on May 14 the Board met, in Special Session to elect the fifth member and Al Vellucci was duly elected. I ,Chairman suggested that the original Minutes submitted, as augmented by the handWTitten transcript provided by the Chairman to members, be made the official Minutes for the Board Meeting of January 15, 1985, with a notation that the tapes will be the official ,minutes should there be any discrepancies. Mrs. Kane moved that this be effected. , Seconded by Al Vellucci. Motion carried 3 to 2 with Members Walsh, Kane, and Vellucci in favor and Members Chenoweth and Carwise opposed. Mrs. Kane moved that the Minutes of March 19, 1985 be approved. Seconded by Mr. Chenoweth and motion carried unanimously. Chairman related the next matter was the review of the record on the hearing in the case of'City of C~earwater versus Raymond W. Parke, and Board action, which was continued from March 19, 1985 meeting. He asked the Director if anything had been filed that has not been ,provided to the Board. Director advised nothing had ueen received from the City or employee. Chairman related background information on the Parke case, indicating that ,the City's; suspension of Mr. Parke charged him with the wrong violation and that this was carried through the entire appeal process including the Hearir.g before a State Hearing Officer. The Hearing Officer found Mr. Parke guilty of violation of Rule 14, ',1 (b), quoting "wantonly, carelessly negligent," whereas Rule 14, Section 1 (b) has , nothing to do with being careless or negligent. He indicated that under the circumstances, , the Hearing Officer cited, quoted, relied upon, and applied the wrong rule, that this error did not comply with essential requirements of the law and indicated that the Order should be rejected. Mrs. Kane moved the Board reject the recommended Order of lhe Hearing Officer in ,its entirety on Raymond W. Parke, and after the proceedings upon which the findings were · based, did not comply with the essential requirements of the law, in that Mr. Raymond W~ Parke was charged with and found guilty of the wrong rule and that over five months , have transpired with the City not at any time attempting to correct this fatal, known 'defect --' that this motion is ~lth prejudice since the 'City has failed during this over \ ' i; .:8 \, ' ,; " , ' r," " .,'. ;:'-'", ~, " ,~ . . '., , .'.<' :, ~;'~":'O ~:/>' ,,', r, ~ '. . '1~> "", ;1'.' ~. ~ . i[.l, ' ., ", /,.: ~ W,I: ~',;" ,', ". " :r"; '''no E',>,.:: '~.::', :.:. .. "/i'-":, ,..., ;~~;",:; " ,.J, t' :'1:':' ',' - ':} i ,'}', ' , ' , ~ . ... ~{":~~',',' \. ), t;~~",-,',., ," :;,. . .:.' /" \: '. ' ,\}.:'" ~~;':'.-",~:'-~ ';', , i\',:, ~ 'ij;~ / ' ~~.,': I, ' ~4~.~ .:. . , 7..'. , {l'~:.;: :~. " . ~~(:.,P ~~ ,'" :1~'} ..:' ':~~:1:.:~:, ' ' ' '1 ',:.., - 2 - Civil Service Board Meeting May 21 t 1985 five month period to correct the City4a errort and for Mr. Raymond W. Parke to have restor.ed to him all the benefits that he is entitled tOt as if this incident never occurred and thllt hia Peraonnel records so reflect this exoneration. In response to questions from the Boardt Director advised he did not believe anyone noted the error until it was noticed by Mr. Walsh; and that h~ had copies of the exhibits of the Parke HeaTing ~hich should be provided to the Board. Motion was then seconded (for dis- cussion) by Mr. Vellucci. Mrs. Kane indicated she had found another error in the Notice of Hearing where the wrong section of Rule 14 was used (Rule 14t Section 6t Civil Service Rules). Director advised the Board that he had provided Mr. Vellucci with a copy of the Parke Hearing transcript prior to the meeting. Mrs. Kane called for the vote on the motion. Members Walsht Kanet and Vellucci voted aye; Members Chenoweth and Carwise voted nay; motion passed 3 - 2. Chairman asked Director toenlightp.u the Board on Agenda Item #3 relative to the issue of appointing the Hearing Officer under Ordinance Number 1831. Director advised Board Members that the City Commission discussed this matter at its meeting on May l6t 1985. ,He indicated that their determination by majority votet wns that they desired to utilize'St~te Hearing Officers; howevert they requested the City Manager to write to the State and request that they consider the rotation of Hearing Officers. They further indicated that at some future point, that the particular section of the Ordinance concerning appointment of Hearing Officers be rewritten and submitted to the voters for clarification of the appointment method. Mr. Chenoweth asked to be provided with a copy of the Commission's official action. Director will provide copy of the City Commission Minutes relative to this issue when they are available from the City Clerk. Chairman Walsh advised Board Members he had attended the ~~y 16th Commission meeting and had submittedt prior to the meeting, a letter for the Comrnissi0n's information. His letter related the Civil Service Law provides in part for the Board to conduct public hearings on employee grievances; for the Board to appoint a Hearing Officer from a list ?f five names submitted by the Commission; and for the Commission to contract with the ,: State for a Hearing Officer. It noted 'the last provision was silent as to whether the , ," State Hearing Officer should be included in the list of five names submitted to the Board and that this provision is subject to interpretation and may ultimately be decided in Court. There was further comment in the letter as to employees and the Board questioning the City's disciplining of employees and then circumventing the independent and neutral Civil Service Board 'by hand~picking the City's sole choice of a Hearing Officer to hear the employee grie~nces. Mr. Walsh indicated his letter suggested the solution was to establish a list of not less than five names and include on the liatt the State Hearing Officer as one alternative for the Hearing Officer ultimately to be appointed by the Board. His letter concluded with noting this would be consistent with past practices, of utilizing State Hearing Officers and would be in compliance with the law which established an independent and neutral Board to insure employees are treated fairly on the basis of merit. Chairman noted that there were several Agenda Items (Items 3t a and ht and 4t a and b) regarding Hearing Officers and also an item on a pending motion to dismiss the charges and order back pay on behalf of Sergeant Hehert. He suggested resolution of Item 4c on Sergeant Hebert might make Agenda Items 3 (a) and 3 (h) of no consequence; accord- , 'ingly, he suggested the Board go to Item 4 (c). Motion was made by Mary Kane and seconded by Mr. Vellucci that the Board take Item 4c out of stated Agenda order. Motion passed on a 3-2 vote; members Walsht Kanet and Vellucci voting aye and members Carwise and Chenoweth voting nay. . ',.' , , :'~:: ~ " t, ,\, ~ T 0:1' , o ,\ '.I, ","':"'0: J ~t ..' :' .:;; , ~ - " ~'.. ','" r f" ~ ~ " ~ c , , :~;;:';~. ~.~':::. ~' " . At ~ :c" ' , " :I~;;',,: " ~N'}>,", , ::.i:::', ':, ' ~r';':',,' ,,' , ' ~';.' '. " ~1-\T,:. , Jh\:;.... ~i':':.,:,',':,;" /~;~;, :I..... ~~iX~' ; ;<:, ' , q'/-".< '.'. f~~;;l,,~:,i. - 3 - Civil Service Board Meeting Mny 21, 1985 Chairman asked Director if ony new moterial had been provided relative to motion on Sergcont Hebert. No new information had been filed. Chairman Walsh related he had reviewed the "Motion to Dismiss Chorge and Order Buck Pay, II filed by Cory Singletary on behalf of Sergcont Hebert, and believed it to be a procedural matter and not a hearing. lie indicated that pursuant to"Section 25.10(c) of thp. Civil Service Law which provides that all present Civil Service Rules continue in force until changed, and" Rule 14, Section 7, Wllich requires the City to respond within ten days of the receipt of the employee's cKplanation or answer tocharge~, the City failed to respond within the ten day period, and the issue is one of a procedural matter and properly before the Board.. He summarized the time frames and indicated certain employee property rights were effected in this instance. Chairman then asked Mr. Singletary to proceed with his motion. Mr. Singletary advised the Board that Sergeant Rebert had already served the penalty (two day suspension) before receiving a response on his appeal from the City Manager. He urged the Board to dismiss the charges because of the failure of the City Manager to comply with the City's statute (response within ten days). Following additional discussion, Miles Lance advised the Board that the City~s position is that motion made by Mr. Singletary is returnable before the Hearing Officer and not the Civil Service Board. He indicated this same position existed relative to another motion filed witll the Board by Mr. Singletary on behalf of another police officer. The City offered no other argument since it believed the motion to be out of order and that such motion should be filed with the Hearing Officer. Mr. Lance further related that Chapter 120. (Florida Statutes). regulates the kind of hearing being discussed and that it contemplate that the Hearing Officer entertain such matters (as the motions filed with the Board). Chairman Walsh noted that the Board was here on a procedural matter that has been properly noticed and that the City has had time to respond and their only response was that it was improperly before the Board. Mr. Lance noted the Minutes reflect that Mr. Kowalski made the same argument to the Board on March 19th that Mr. Singletary's motions should be filed with the Rearing Officer not the Board. Mrs. Kane moved that~ after listening to all sides of the issue and very carefully studying it in all angles, including the City's, I move that Sergeant Hebert's Motion to Dismiss Charges is properly before the Board as a procedural item; that the City failed to meet the minimum requirements of Rule 14, Section 7 (b) by not responding within ten days to Sergeant Hebert's explanation and answer; and therefore, to dismiss the charges before and against, preferred against Sergeant Hebert, by the City; that all benefits, attorney's fees, including his lost wages, be restored to him and that he and his records are hereby exonerated'as to the alleged charges. Motion was seconded by Al Vellucci. Motion passed 3 to 2 with Members Kane, Walsh, and Vellucci voting aye and Members Chenoweth and Carwise voting nay. Chairman reflected that the vote on the preceding motion makes moot Agenda Items 4 (c) and 4 (b) He asked Mr. Singletary to proceed with his presentation on his motion on Item 4 (a) to stay the Hearing scheduled before the Hearing Officer in regard to T~resa Murphy. " " Mr. Singletary advised the Board he concurred with the earlier description of the '~ , , ..' . " ~ ~ " ' . i', " , " ~ ('. " .' . :~>,'.: E<O: :~\ '\ ~1;.: " .!;' <. . (,;,", It:", ~; f., \', :. .;: .' .. : ~ 1,,::; :., "-T..;;--. ., ~ . ~~,~.." ..' !~'.I ~'.. . ~" . ~;~~/~,,:;: " ,:'.. ~ ' , " " , tori .' ;Ct, ~ . ,- ~~.~ ' . ' , .:~,\:" >,j .., If:"l,:,~":' ' ~, .. ." ~t' r.,'c..j," '/, ' " -~..': ' " ' ...j. ~, ~:{::;t~ ' ~\~ ~."".., " L7~,:;~~:,":' ~ .' ,~..,," , ' ~f'":"''' , ~Jf::).:,::,': .~t~.':,:.., ~ - 4 - Civil Service Board Meeting May 21, 1985 City Commissionts action (as described by the Director) relative to whether or not Mr. Ayers or the Division of Administrative Hearings were going to continue to hear appeals. He advised the Board that Mr. Kowa~ski had advised him that Mr. Ayers had only recommended in favor of an employee'd:none instance, and Mr.Singlel:ary believed this created a perception by employees as to this being less than an ideal situation. Mr. Singletary advised the Board that since the earlier continuance granted by the Hearing Officer in the Teresa Murphy case, the Hearing Officer had subsequently re-set the case for hearing on June 25th without contacting him relative to this matter. He related that this was a case of a dismissal; that the individual's livelihood was at stake, that the case involves such matters as harrassment allegations as well as job performance. He noted that it was important to proceed with this case one way or anotner. However, he did not wish to have to appear before Mr. Ayers. He related the question before the Board is whether or not the Board is going to take further issue with the Commission on this matter or whether it is going to be left to the appealing employee to challenge the manner of selection of the Hearing Officer. He asked the Board for their feelings. Mrs. Kane related that she did not wish to see any employee have to appear before Mr. Ayers because of the two errors he made in the Parke case. '~he felt the Board should make an appointment of a Hearing Officer from a list,of five names submitted by the Commission. Mr. Singletary discussed his view that the (Civil Service) Ordinance is internally inconsistent and there is no way to reconcile it as to the methods of appointment of a Hearing Officer. He related that no tests have ever been given and this may be a further defect in the appointment process. Mr. Vellucci asked how the City handled the need for a Hearing Officer for a subject case. Director advised that the City advised the State of the need and the State then assigned a Hearing Officer. He also related that the Commission's action at their recent meeting was to ask the City to request the State to rotate Hearing Officers for Clearwater. Chairman Walsh, following disussion as to the possible rotation of Hearing Officers, asked Mr. Singletary if, subject to preserving his rights to make objections to the appointment of the Hearing Officer, he had any objections to goi~~orward with the scheduled hearing (June 25th) so long as there is a DOAH Office~l\than than Mr, Ayers assign~d to the case. Mr. Singletary indicated he preferred not to have to utilize the DOAH process. However, if necessary he would go forth on the 25th and file any motions relative to his objections. Following additional discussion, Chairman Walsh summarized that Mr. Singletary has suggested the Board may possibly hear Miss Murphy's appeal. Mrs. Kane moved that the Civil Service, Board hear the Hearing of Teresa Murphy. Motion seconded for discussion by Al Vellucci. Miles Lance related that the City's position is that the Hearing should be held on June 25th'before Mr. Ayers. Chairman Walsh related that Civil Service Ordinance providef:i that the Board shall h~ve the responsibility of conducting public hearings on employee grievances. Following discussion by members, motion was re-stated by Mrs. Kane that the Civil Service Board would hear the Hearing before this Board on June 25th. Motion was seconded by Mr. Vellucci. Motion passed with Members Kane, Walsh, and Vellucci voting aye; Members Chenoweth and Carwise voting nay. Chairman directed Mr. Laursen to take any and all action that is required on behalf of the Board to advertise, publicize, schedule, and take care of details for the grievance to be heard in regard to Teresa Murphy by the Board on June 25th. ". I c' " Jo,.' - 5 - ~ ". Civil Service Board Meeting . , " . . ., , ' . ,. : , ',.T . '.: :.. ~ .' . , ,'.' :";.A, . . l,", . :~.' ':" ',:. .' I,' , :t~:;.O: ~\~.~.:.s,J .>...' . I].':".;" '.,'" ..... :'} , J:'.~' ,': . F)> ~".' . ;:::~ .:::. I' I C/>'.' ;r/':/:~ <, . )~g.~ :::: ~.., '. c ::;):..'; . ~~:;~. :~:'.' ;~:!:-.>.'. . ?:" :::' ,~~. ,: ~i:?:; 1.(~.; :,i',,: .c f';.C' : ~ . .....'1' ", .. :-{ " I . ~~~I::L..'.': . ~\""'c' .' !~~~F:: .~tj",;" i'I . tf; ;t.l:.... '1' . '.'~ May 21~ 1985 Director advised Board Memb ers that the proposal for alternative discipline for law ,enforcement officers discussed at a previous meeting, had been withdrawn by the City Manager. Director advised Board that he had received a letter from the City Manager (copy was distributed to Board Members) relative to the request for independent legal counsel in the case of Bill Hebert. The matter was discussed by the City Commission and their response was to suggest that the Board utilize the inter-local agreement between Clearwater and St. Petersbrg (to share attorneys). Director provided copies of letters from Mr. Singletary to the City Clerk and to City of St. Petersburg in which Mr. Singletary requested information regarding the inter-local agreement. Mrs. Kane related that a change in status from classified to unclassified had occurred relative to Police Captains without being brought to the attention of the Board. She related that she had been given information that one Police Captain was asked to resign. She related that the Captain was previously given a merit increase to be taken out of Civil Service. She related that Civil Service was established to protect the employee and asked the Director to provide the Board with information aoout changes of classifi- cations from Civil Service to exempt status. She asked that this be discussed at the next meeting. Chairman asked the Director to find out what the status was when the Civil Service Ordinance went into effect and to determine which positions were tenured and report back to the Board any changes made and an explanation of who did it~ how it occurred, and under what authority. Director reminded Board Members that on February 27th he did provide information to the Board relative to the exemption of Police Captains. Chairman Walsh related that the changes of status appeared to be an erosion of Civil Service and it is the duty of the Board to see that any changes have been done pursuant to the law. Mrs. Kane related that the guidelines on Affirmative Action (Disciplinary Action Guidelines) had been put into effect in 1975 but were never approved by the City Commission. She -related concern with the assignment of lIpointsll when an employee is 'suspended; and indicated that the points system anu Affirmative Action be brought before ~. the Board..... Mrs. Kane expressed concern that many suspensions were being effected months after an occurrence (infraction).. She stated she had contacted Mr. Robinson in Affirmative Action who indicated his office was about six months behind. She asked that this matter be placed on the Agenda. Director. asked the Board to provide direction as to whether consensus of the Board should be given to him relative to placement of items on the Agenda requested by an individual member. or at the request of the Chairman, or in what manner. Mr. Vellucci stated the Chairman should be one Co put an iteDl on the Agenda. Chairman W~J.sh expressed concurrence that the question of Guidelines for Disciplinary Action be .reviewed to determine if theTe was any official action taken by ,the Board relative to Guidelines~ and if not, they have no fOTce and effect and should not be utilized except for use as a guide. In response to comments from Mr. Vellucci and Mr. Chenoweth, Chairman indicated that the Board should consider how items for Agenda consideration should be handled. ,~. ',:; l. I . .f .,~.~ , ",I, "iV- :1......~~\+". I'I'......p.,.'..i,.:.. ~ .-l.~.......,......."J Pi. ;.r-:"~V"~I"I!t-'~. ~.....,...', . . .,. .. . t" ~ ',". :-.-~; . I " ' . ~ ... ; /}{~'\,~.~::,~':';:,:':: ;. '::'/.~ij',.::{&[:~f;){~~~i1,:;~fJ~:*;~r~~:;?i?:]ffJ%:,;t~~'i';'" ;:S;T~;~ji;;.}i;S;'it;'~1.r?'; ~(,:r,~;:\i'''~,'i~(?~t\. .I.t.., C . ','.' ." .'. ' .. - '., . ')" " ...... '.I' ~. -', "''''\'''''10...'' ""',' .., {"". ., y . \. ".' ,..".,., 'j "'''1' < ,,'. .../ ...,. <>',.,::"f;:"~:'~',',.<:.:r'; ....:..;:'. ..... .. ..... ! . ,. . ~ . ~. ..... ... I~ ;;; . . "f't;,.! /; < ..; ;'S:;;.';,.': d' o . '.,. ~ ,.~; :. ",~. I . : '.~ :..:,::,:...., ~ . ~ ... , . 1 '. ... '" ..." 'I. ,.,... " ,", ..l.,t.. ff... '..,' '.. .. .'\, "'r" ...... {.... r' .', . ..(,...." '".,.,'. ," J, .' : ': ,',' , '.' ..' .~. >,;:\;:\'. :;:~~~~:.\~~~.;::.:;~;;~.:.~:J?;:~;;;:'~:L.>;.::;.'~./.'/::::.'t>< ". ....:, :".;~~::::':~ ,'~,\'::":.' : (-"(,::', ': :;"';,:':'."-';,;.: "~;'.<i~~ ~''''': '.' .J....- . ;':r i. " .'. "\. " , , , . ';'~ ~ . .", '\,' , . ." J ; ~ ~:', : .J:, I ,1,.' ,. .;,: ~. (:: . >"> ~I~.. .- 1.1".,. .;~.. ,; <' '. X:';'o.': .~ ,'~1 e: ., ", ~ ,. . ~ . - ,~, " " ~~~;~~ : . .';', , ';~~":~', .~. ~ " 1}:;,:.,..:,.':~.: ~/': '.: .' ...., ,', tW:'~:::,.:,. 'iL,~:";'~:!. ~..;: :'.: . ...~~o:. ~\::": ,. : i~;:;;~ ,". . J' ,"i" ,., . ... ~ ,.~,.' . ~;;3 :~.. .:. , '. ft~K ;-:: .~, ~.' ~ '?;(,.' ." ..' '. ~. . ~ - 6 - Civil Service Board Meeting Mny 21. 1985 Chairman Bsked for employees or citizens who wished to speak to do so at this time. Mr. Raymond Parke indicated that after his five day suspension 11e was denied l1 merit increase and he asked for clarification as to the, denial of the increase (given the Board's determination to overturn the suspension). Chairman indicated that the Board's motion resolved that matter -- all benefits would be restored. ,1 Mrs. Doris Jean Cesta indicated that there was discussion among employees that managerial and executive personnel, upon retiremcnt~ would be getting 15%of their sick leave. She asked if this was correct. Director explained that the City Manager was contemplating an alternative fringe benefits program for executive and managerial-professional employees and that this program would allow such personnel to select among various benefits those which they most desired. One of the benefits to be availabe would be the sick leave at 75%. Mrs. Cesta asked if this program had been approved by the Commission and Director indicated it had not, that to the best of his knowledge. such approval was not required. Director further indicated that this type of flexible benefit program was fairly common in industry and was becoming more prevelant. in the government sector. It was also noted that the availability of this program was not restricted to ~xempt Civil Service employees~ that about half of the people eligible for the flexible benefit program were Civil Service employees. Discussion moved to the number of positions which were in the exempt service and whether the Civil Service Rules provide for employees to receive 50% of their sick leave upon upon retirement. Chairman Walsh expressed his concern as to the flexible benefits program and the possibility of discrimination in employment and violation of Fair Labors Standards Act by this program. He indicated that Section 25.10 of the Ordinance states that all present wage rates~ Civil Service Rules and Regulations, procedures for employment and personnel policies shall continue in force until changed or revised in the manner provided in the Ordinance. He asked that the Director report back to the Board about this matter. Mrs. Alice Bush inquired as to the status of the list of confidential employees (under PERC). Mr. Walsh related some background on the granting of 6% wage increases to Union employees and 8% increases to certain exempt employees and that the question that had been raised as to the designation of those exempt employees. He asked the Director to clarify whether the list of those employees given the 8% increase were on the list approved by PERC at the time it went before the Board. Director related that PERC did not accept the list submitted to PERC following the 8% increase; that they returned the list and requested additional information. Up to this time~ that information has not been provided to PERC: however, the City's position is as it was initially~ that the original certification provides latitude for the positions defined by the City to be appropriately defined as exempt under the PERC certification. Mrs. Bush related that she felt the City was operating under a list that is not approved and the City Commission is just hoping employee objections will go away after awhile. Chairman Walsh stated the Board needed clarification from the City on what authority and what occurred relative to the raises so the Director could report back to the Board so that answers can be pro- vided and this matter concluded. Motion was made by Al Vellucci to adjourn the meeting. Seconded by Mary Kane and motion carried.