10/29/1985
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Proceedings of Civil Ser-vice Board Meeting held October 29, 1985
Present: Nugent Walsh, Chairman
Tom Chenoweth, Member
Mary D. Kane, Member
At Vellucci, Member
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H. M. Laursen, Personnel Director
Al Galbraith, City Attorney
Miles Lance. Asst. City Attorney
Stuart Rosenblum, Attorney for Christopher Kingsley
Larry Browett, Firefighter
Absent:
Dr. Joseph Carwise
Chairman Walsh called the meeting to order. He introduced the Board Members to the
audience and introduced and welcomed the new City Attorney, Mr. Galbraith.
Tom Chenoweth moved for approval of the Minutes of the meeting of September 24, 1985.
Motion was seconded by,Mary Kane and passed unanimously.
Chairman asked Mr. Rosenblum, Attorney for employee Christopher Kingsley to present his
request to the Board concerning the Grievance of Mr. Kingsley. Attorney Rosenblum
requested that either the Board or a Hearing Officer appointed by the Board from a list
of five hear the Kingsley Grievance. After relating histori,ca1 perspective as to the
development of Civil Service in the United States, referencing a Supreme Court case
(Laudermill) which established due process and property rights for employees, he contended
Section 2S"04c of the City Code provided the Board the right to conduct employee
Grievance Hearings or that they had an inhe'I'ent right to do so. He illustrated his
position with on analogy relating to appeals before the District Court. He further
i related that Mr. Kingsley should have all the protection of. the Administrative Procedure
. Act.
Chairman Walsh inquired as to Mr. Rosenblum's preference for a Hearing Officer (either
the Board conducting the Hearing or a Hearing Officer appointed from a list of five)~
Attprney Rosenblum stated either would be acceptable, including the use of five namcs
from which the Board would appoint a Hearing Officer,with one of those being an open-end
item of a State appointed Hearing Officer.
City Attorney Galbraith indicated his review of Chapter 25 of the City Code reflects
that the Board has authority to hold hearings on proposed deletions, modifications or
additions to personnel policy, but did not provide the Board the right to conduct
Grievance Hearings. The Board, in his opinion, may provide advice and counsel to the
City on any aspect of public personnel administration. He related that Section 25.04d
provides that all cases of employee Grievances relating to discipline or, job discrimina-
tion shall be heard by a Hearing Officer. He related that Section 25.05 p~ovides
two options for the City Commission in obtaining a Rearing Officer; one being to provide
a'list of five names to the Board from which they select a Hearing Officer; the other
being to contract with the State of Florida to provide a Hearing Officer. City Attorney
Galbraith also related that the only method used by the City for the appointment of a
Hearing Officer was by contract with the State. He related that he had indicated to
Mr. Rosenblum and would promise to the Board. that the City would not use the specific
Hearing Officer who in the past had conducted most of Clearwater's Hearings; further
that the City would use a blind rotational system with the State appointed Hearing
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- 2 -
Civ.il Scrv.ice Board Meeting
October 29, 1985
Officers. He related that for the City Commission to provide a list of five names to
the Board', qualification standards would have to be determined, then utilized, and then
a list submitted. He indicated this could be a slow process whereas use of a State
appointed Hearing Officer provides speed, an important part of due process. He con-
cluded by noting that the Board has no inherent, power to conduct hearings; the
Ordinance does not provide the Board with power to conduct a de novo hearing on
Grievance matters; and' the City, Commission has two options to utilize relative to
obtaining Hearing Officers.
In response to a question from Member Chenoweth it was indicated that the City has a
current contract with the State for the provision of Hearing Officers.
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Attorney Rosenblum provided Board Members with a packet of information while he
expressed disagreement with the City Attorney. He related the Ordinance does not have
an "or" in it where it specifies' methods of appointment of a Hearing Officer. He cited
a 1897 Florid'a Supreme Court case "Hall vs. S ta te," 23 Southern Reporter, P. 119, which
relates that where the last clause of a section of a statute is plainly inconsistent
with the first portion of the Bame section and the first portion conforms to the obvious
intent of the legislation, the last clause, if operative at all, must be construed so as
to give effect consistent with the first portion. He indicated this applies to
Section 25.05 of the City Code. He related that failure of the City to provide the
Board with a list of five names from which' to choose a Hearing Officer robs them of their
jurisdiction.
City Attorney Galbraith rebutted that it can be misleading to be guided by the head-
note of a case and' he related' that Attorney Rosenblum had reached erroneus conclusions.
Chairman,Walsh summarized the positions of the two Attorneys and asked for a motion.
Tom Chenoweth moved that the City CO~Dission, through its contract with the State, ask
for the appointment of a Hearing Officer and he hold a hearing and make his report to
th.e }bard' as provided' by law. Motion died for lack of a second.
. Mary. Kane moved' that the Civil Service Board hear the case of Christopher Kingsley, due
to the fa~t that we have not had submitted to us a list of five, it's in litigation,
a~d'!the Boar4 Membe~s can make a fair and honest 'decision. Motion seconded for
dis~u~sion purposes by A~ Vellucci. Al Vellucci asked if the Board could get a list of
fiv.e na~es and' the City Attorney indicated that there is not 'a current list and it might
take se~eral months to develop such a list. Chairman Walsh and' Mary Kane discussed the
impact of a delay in holding a hearing and' it was indicated' that the Suspension, while
already served' by Mr. Kingsley, could' impact his merit increase. Attorney Rosenblum
stated that , unresolved', the Suspension being on Mr. Kingsley I s record could impac t
his ability to seek other employment. He urged' the Board to act quickly. Chairman
Walsh and Tom Chenoweth'd'iscussed the use of State Hearing Officers with Mr. Chenoweth
stating his view that since the City d~es not appoint the Hearing Officer under the
. contract' with the Sea.te, it merely requests that a Hearing Officer be assigned when
neede4, it is an impartial process.
Chairma~ Walsh re-~tated' the motion made by Mrs. Kane upon request, as follows: The
'ChTistopher Kingsley matter be heard before this Civil Service Board. Al Vellucci
se'conded' the motion and' mo~ion carried 3 - 1 (Ayes:. l<ane, Vellucci, Walsh; Nay: Chenoweth).
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- J -
\
CiVil Service Board Meeting
October 29, 1985
Al Vellucci proposed, to the Chair, and Chairman Walsh instructed the Personnel Director
to follow through with the proposal, to contact tllC City Commission as quickly as
possible requesting they submit a list of five names to be used for a Hearing Officer
to be appointed by the Board~ pursuant to and including any qualifications that are
necessary per the Civil Service Law approved and ratified by the voters. This list is
for the purpose of future hearings that may occur.
Chairman Walsh advised the Board that Agenda Item #3 related to the Board holding a
hearing or appointing a Hearing Officer relative to Ray Parke's Grievance. Director
a.dvised: that there was a contenti'on by the City that the employee had no right to bring
this particular matter to the Board in that Mr. Parke had initiated his Grievance on
the matter through the Collective Bargaining Grjevance Process. He reminded Board
Members that Assistant City Attorney Miles Lance had provided the Board with a case
relating to this matter at the last meeting.
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Mary Kane ~elated that the employee had carried' his Grievance through the third step,
it was denied ai that step and' denied arbitration; thus the employee had not had a
justified hearing. Chairman Walsh ind'icated that this matter related to a Suspension
of Mr. Parke [or an incid'ent that occurred off-duty; that Mr. Parke initiated a Grievance
tnrough the U~ion. however, at some point the Union decided not to go forward with his
Grievance; and"~nat the City had furnished a recent Supreme Court decision relating to
a School Board emp1oY~,e~ but it is not known if the School Board has Civil Service.
He further related that the St~tute (FS 447 re: collective bargaining) makes a clear
distinction as to an alternative Civil Service route of disposing of Grievances. Upon
learning from Mr. Parke that he had' no Attorney to represent him and in that the City
Attorney had' offered an opinion on behalf of the City Manager and could not provide
advice to the Board and because there exists a question as to whether the Board can
hear this matter, Chairman Walsh expressed that this is an instance where the Board
needs independent legal counsel to advise the Board whether it can proceed with this
matter.
Tom Chenoweth asked about having the right ~nd money to hire an Attorney. Chairman
proposed that a request be made to the City Commission to authorize independent legal
counsel of, the Board's choice, to advise it of the application of the Supreme Court
case the City is relying on in this matter.
Tom Chenoweth indicated the Board had previously hired an Attorney for another case,
although the City Commission had suggested borrowing an Attorney from the City of
St. Petersburg. He questioned whether the Board could pay the Attorney hired without
'approval of the City. Chairman Walsh indicated that since the City had sued the Board,
the Court would make that decision.
Chairman'Walsh stated the Board would entertain a motion for the City to authorize
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independent counsel of this Board's choice to advise the },oard on the Parke case and
the application of the Supreme Court decision the City is citing as its authority ,
for the Board to make a decision on whether to hear the Parke case. Mary Kane so moved,
." seconded by Al Vellucci and motion carried 3 - 1 (Ayes:, Kane, Vellucci, ~<1alsh; Nay:
, Chenoweth) .
Chairman Walsh asked Director if there was any input from the City on Agenda Item #4,
Status o~ City lawsuits against Civil Service. Director advised that he had previously
provided all available information to the Board by mail concerning Teresa Murphy and
William Hebert. Both cases have been settled between the employees and the City.
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Civil Service Board Meeting
October 29. 1985
Chairman Walsh expressed concern with an appeal being settled. when the Board is a
primary defendant, and the Board had never been approached or agreed to any ,settlen~nt.
Chairman Walsh related that the Board's Attorney, Mr. Moss. did disclose to him that
the brief prepared by the City did not address the issues of the Rebert case and the
Murphy case and it was his opinion that since it did not address those in the appeal.
those will not be argued and the Board's decision would remain as rendered. Chairman
Walsh said the employees may have settled on the side. but the Board's decision inas-
much as the City has not followed through with the appeal. would stand as proper.
Miles Lance summarized the status of the cases settled. He related that Teresa Murphy
executed' releases to the City relating to an EEOC claim and her termination from the
City. He stated that in the Hebert case the City re-evaluated its position and deter-
mined that there wes merit to Sergeant Hebert's defense. He related that these two
cases were originally part of an action as a Notice of Appeal and an action for an
injunction, filed' as a civil action. Thereafter, the Parke case was refiled as an
appeal and' he filed a brief. He stated Mr. Moss had requested an extension to file
a brief in that case and has until November 10th. He summarized that two-thirds of the
items in the original suit had been settled~ He related that in the Parke case the
issue still remains as to whether the Hearing Officer's report was proper. In the case
of Sergeant DeSantis. that case will be argued on December 13th and October 30th is
the last day for Louis Kwall~ Attorney for DeSantis. to file his brief. He summarized
the status of the suits by relating that the issue of the Board's jurisdiction and
power are currently before the Court and will be decided after argument on December 13
and the City 'is ready to argue the Parke appeal as soon as Mr. Moss files his brief.
Chairman Walsh read the Mayor's October 7th letter to Board Members concerning a joint
meeting of the Board' and' the City Commission. Mary Kane asked that it be conveyed to
Mayor Kelly that she would appreciate the meeting be at night.
Mary Kane read' a letter addressed to the Mayor and City Commission from Jean Cesta
former employee in the Engineering Division. in which Mrs. Cesta criticized City actions
relating to the flexible fringe benefits program, the 1983 granting of 6% to some
employees and' 8% to others. the change of classified positions to u~classified positions,
and other items.. Chai'rman indicated that it appeared to be Hrs. Kane's feeling that
these items should be brought to the attention of the City Commission.
Mary Kane expressed concern with respect to the Eligible List and Certification for
Admi~ist~ati~e Secretary. and' questioned why a Secretary II was b~ought in on a temporary
basis to replace an Administrative Secretary. Director'summarized the rule of five
scores to the Board', explained the composition of the Eligible List for Administrative
Secretary, and referred to the right of the Appoiating Authority to request a certifi-
cation of five whole scores. He noted' that while the Eligibie List has six names on it
for Administrative Secretary, only four score groups are represented. During the time
required' to update the Eligible List to at least five score groups, the Department
Director has designated a Secretary II within his department to serve in an acting
,capacity as Administrative Secretary.
'Next discu'Rged by the Board ~as the subject of classified and unclassifie4 positions.
Director indicated that a report had been previously provided to the Board Members when
this was discussed' at an earlier meeting. Mary Kane expressed concern as to an
Administrative Assistant being taken out of the classified service and put in the
,unclassified service and stated' that this individual is not a department head. Director
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Civil Service Board Meeting
October 29. 1985
in~icated t~at the Ordinance does not specify specific job titles. It identifies
a~ exempt positiQns sUc~ positions as Attorneys, Board Members and also Department,
Oi~ision, and' A.ge{lcf Hea,ds. Thus, irrespective of job title. if the position is a
nep~~tment, Di~ision or Agency Head. the Ordinance provides it may be exempt.
M~tY Kane indicateQ' another position of concern was Police Capt~ins. These were
cnanged to unclassified and it was never brought to the Board for approval. Director
~elated' that preVious Boards had' not expected or requested such information. He related
that the change of Police Captains was caused by reorganization within the Police
Department which. had' the effect of eliminating the pOSitions of Police Major and moving
th,e Police Captains to the Division Head leveL Mary Kane stated that Chief Klein also
"{anted: to change Police Lieutenants to unclassified status. Director related that he
had discussed' Police Lieutenants with the Chief and indicated to him in correspondence
wh.at the categories were for exemption under the Ordinance. Chairman Walsh asked
that c.opies of such ~orrespond'ence be provided' to him. Mary Kane related that she
would continue to bring this subject up for discussion and when the Board meets with
th~ Commission it should be one of the topics. Director concurred that Mrs. Kane should
in~lude that item in her response to the Mayor.
Chairman Walsh indicated that the Director had provided copies to the Board of a
proposal made for an Employee Assistance Referral Program (EARP)~ Director indicated
th,e City had solicited proposals from potential providers for an EARP, and that this
prog~am.was similar to one suggested a year earlier on behalf of the Police Department.
,This proposal would: be intended to cover all full-time City employees and represents
a{l initial step by t~e City in th.e employee assistance program area. He reported receipt
of 16 prQPosa~s. In a response to a question, Director reported the proposal had not
bee~ p~o~~de~ to the, Unions since this is a developmental program to see what the market
will bear. ,Harr KaI:1e stated this should have been sent to employee organizations.
Di~ec tor adv.ised' the Board' the proposals received ranged from $ 6600 to $42,000. Direc tor
~elateq he na4 been designated' as Chairman by two other staff members (Don Peterson,
BQb Ellis) to hold. the bids so that others could come to Personnel and review them.
The direction of the proposal is from the City Manager's Office.
Cha1rm~ Wa~sh refe~red' to a letter received by the Board from the IAFF which included
the statement thAt p~oblems of Firefighters we~e not adequately addressed. Mary Kane
mq~ed, Al. Vellucci seconded and' motion carried 3 - 1 that the Board depart'. f~om
the ~genda an~ allow an rAFF representative to speak to the issue of Employee Assistance
Referral Program. (Ayes:: Kane, Vellucci, Walsh; Naye: Chenoweth).
Lax~ BrQwett, member of t~e Executive Board of tbe Clearwater IAFF and Chairman of the
IAFF' Health &.' Safet;r Welfare Committee, spoke for the Firefighters. He stated the
pl;'QPosed' EARP program originated' the ~irst part of the year because the Firefighters
recognized sQme problems; two Firefighters ended up in Alcohol Re-Hab and one Firefighter
became a quadl;'iplegic because of a gunshot wound while drinking and one Paramedic had
to get off the rescue truck and' seek psychological counseling. This prompted the IAFF
to put together a seminar in May to educate Firefighters. Mr. Browett said the City
Manager came' to the Seminar and related' he would get some type of program going. The
Mapager asked Mr. Browett to meet with the Chief and the City Safety Director, Bob Ellis,
and try to assist them in putting together a program. Mr. Brow~tt related his knowledge
w~s never solicited. at all; his calls were returned with messages that it was being
worked on. He stated' he received a copy of the proposed EARP from ijary Kane and that
he w~s not happy with the program. In September the IAFF sent Mr. Browett to a Seminar
which included programs on stress nnd employee assistance prog~ams. He related that
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- 6 -
Civil Service Board Meeting
October 29, 1985
one of the speakers, a nationally recognized specialist on employee assistance
programs, stated that etnployee nssistance programs set up entirely by management
fail 100% of the time. Mr. Browett came from the Seminar with that and other infor-
mation and was ignored by Mr. Ellis who would not meet or talk with the IAFF.
Mr. Browett related that the range of bids reflects a poorly written proponal. He said
the program apparently was copied from the Police proposal yet is intended to apply
to all City employees. He stated Police, Fire. and other departments have different
problems. He cited the program as falling way short. He noted that the City's
insurance only pays a small portion of the cost of counseling. He recommended to the
Board that they go to the City and tell them to stop what they are doing; that they
recommend a Board be set up with Union representation of City employees and some
management, and get a program that will do something for the employees. He related
that 84% of alcoholics in the United States work in the health-care professions and
a Baltimore study showed that after 30 days on the job, 86% of Firefighters had some type
of emotional problem. He related that the program should contain mandatory training
provision, and noted that based on his familiarity with providers, some of them aren't
qualified to conduct the programs in EARP. He said the magnitude of the problem is
evidenced by such examples as in Denver where eleven Firefighters were arrested on
cocaine possession and selling. after which the City recognized it had a problem. He
stated the City relates to this as a step in the right direction. However, he
categorized it as a step backward reflecting it won't be used -- you either have to have
a comprehensive program lIr none at all. He related that Paramedics are constantly facing
the pro,blem of "burn-out II due to the pressures. He asked the Boa.rd to go to the City
recommending they reject this program.
Chairman Walsh said the Board was concerned for all City employees and agreed with the
IAFF representative that the City get input from all segments of City employment. He
also suggested meeting with Pinellas County which has a righly successful program.
Chairman asked the Director to make the Doard's position known to the City Commission,
through proper channels.
Mary Kane stated she found out about the program and called the Police, CWA and Firemen.
and nobody had been notified. They should be notified.
Board discussed the subject of open and competitive examinationst an item requested on
the Agenda by Mary Kane. She stated the Board had previously recommended that
promotional examinations be given more often, rather than open examina.tions. She
recommended a memo be sent out regarding promotional exams and'that departments use
t~ese lists. If the employees don't make it, they can be let go in the six months
probationary period. Tom Chenoweth stated the City should get the most qualified
person for. its jobs taxpayers deserve that. Chairman asked the Director to pass
the Board's concern on through proper channels.
" Director reported on the suit filed by Eunice Wlasiuk against the City of Clearwater.
He read into the record the Order Granting Motion To Dismiss which was signed by Circuit
Judge Harry Fogle on October 15, 1985. The Order provided that the Petitioner shall
have twenty days in which to amend the suit. Asst. City Attorney }files Lance further
advised the Board, upon questioning from Chairman ~valsh, that the Petitioner"s Writ of
Certiarari was not a proper proceeding to bring in this instance; he allowed Mr. Finch
the opportunity to file the proper pleading in a proper form. The Judge suggested that
he might better consider a contractual or quasi-contractual action.
Director reported to the Board, as follow-up to discussion at the last meeting, that
an appointment had been made of an employee on October lOt 1985 to the position of
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Civil Service Board Meeting
October 29, 1985
Assistant Purchasing Officer.
Director advised Board Members that Cherie King, who had previously addressed the Board
in regard to an appeal of an Outside Employment Request restriction, had nsked that
conBide~ation of her appeal be delayed until a subsequent meeting. Director provided
Board Members with a copy of the new Pay Plan, effective as of October I, 1985.
Director indicated to the Board that two proposals had been submitted to the City
}lanager. Copies of the proposal relating to the elimination of the age requirement
currently utilized for original employment of Police Officers and Firefighters. It
was indicated that copies had been mailed to the Unions. The second proposal related
to recommendations to establish a No Smoking requirement and to establish a residency
requirement. These requirements would apply only to newly hired Firefighters. In
response to the proposed residency restrictionJ Chairman Walsh indicated it would be
more appropriate to use a mileage limit rather than a County restriction. Director
indicated use of a County boundary line would simply be a more practical restriction
to apply; it would be better understood. In response to an inquiry from the Chairman.
Director indicated a similar residency requirement might follow for the employment of
Police Officers. It was also indicated that the change for Fire was based on forthcoming
hires. Chairman Walsh requested a comparison of the current numbers of Firefighters
and Police Officers to 10 years ago and 20 years ago.
Tom Chenoweth moved that the December meeting of the Board be postponed and the next
meeting be held in January, however, that if a Special Meeting is needed for any purpose.
one be called. Seconded by Mary Kane and motion passed 4-0.
Mary Kane inquired about Library Assistant III and asked Director if longevity and
seniority played a part in consideration of promotion. Director advised that City
employees receive ooe-half point for each full year of service up to a maximum of ten
years. service; this is credited to their earned grade and does effect their standing.
Mary Kane questioned why an outside candidate would be employed over an employee; one
employee in top score group on Eligible List was passed over and an outside candidate
~mployed. Director explained Rule Five Whole Scores which provides flexibility for
management, based on their interviews, review of applicants, etc. who is the best
candidate for their position. Director advised that if a promotional list has less
than five score groups, it can.be merged with an open list. Mary Kane asked that the
Director notify the Board of everything that is going on and also the bargaining units.
She stated that input is to be received from the employee organizations on everything
thst is going on. Director noted that he does not initiate all the items that relate
in some manner to personnel and it is not always within his authority to involve other
parties. Chairman Walsh repeated his desire for open communication.
Mary Kane stated the Board Members are doing their best to help City employees and
questioned why the Board Members, had to pay to have copies made from personnel files.
It was indicated the Personnel staff required her to pay for copies made earlier.
Director advised' that staff members. were only following City policy which does call for
charging for copies. However, he indicated exceptions were made for employees involved
in Grievances, etc., and there was no intent to charge Board Members doing research.
He apologized and indicated he would see that reimbursement was made. ." ,
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- 8 -
October 29.1985
Chairman Walsh expressed concern that recent Agenda pockets to the Board were mailed
third class and this could cause delay of a day or two. thus ~r:esentiJlg Members from'
having the opportunity to review materials and be fully informed.
Mary Kane indicated she had contacted the local newspapers and they had not received
copies of the Agenda. She also stated the Uotices of meetings are not getting copied
to the six or seven Fire Stations. Director stated he would ask the City Manager
to remind D~partment Directors to post the meeting notices.
Van norton, Secretary-Treasurer of the Firefighters UnionlBsked
lawsuit between the City and Civil Service Board would be held.
M~. Horton that it would held on December 13th. A three Judge
the DeSantis case and that will determine whether the Board has
hearing' and reinstate an employee.
Mr. Lance when the
Mr. Lance advised
panel will decide
the right to hold a
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Van Horton indicated to the Director that the IAFF would oppose the proposal on new
requirements. He also asked the Board to bring up the subject of Flexible Benefits
when the Board meets with the City Commission. It was' indicated that the joint meeting
>'would be a public meeting with appropriate notice.
Mary Kane moved. to adjourn, se~onded by Al Vellucci and motion carried.
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