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01/03/1989 - Special /~' ~.', : . ' '\ '. 't:" ...... : .~. . ",':,r ,~ ~ \' , \ , . ....,. "0..'.' ..; .~ ,,' , " :. " " -:/". .~. \ .,.:,'. J',' .. ,I t:' '.). . :' > c l, ~ I \f',. '. '.. ':1" l< ~ ", ...~ .' , .." c ..' . '",,: r:::, . " :. . . I ~ \ 't: ~"\:' , ":..,-'" "<':;. ,",' ,'.'it.; ')' , :....:'i,." ," '!, ",:'.:I~_...c " , " '''' Proceedings of the Special Civil Service Board Meeting of January 3, 1989. Page 1 Present Johnnie Williams, Acting Chairman David Keyser, Member Syd Snair, Member (Orland) aill Carroza, Mom ber David Healey, Special Appointed Member H. Michael Laursen, Personnel Director Mites A. Lance, Assistant City Attorney Deborah Lally, Personnel Department Jeff Harper, Assistant Personnel Director John G. Hubbard, Esq., Indepcndem Counsel for the "Bonh.-.._" William Sizemore, Esq., Attorney for the City Louis Kwall, Esq., J\llorney for Joseph DeSantis Joseph DeSantis Margot Pequignot, ALlomcy for Joseph DeSantis Sidney Klein, Police Chief ~ "'-"",-", Secretary Laursen asked David Keyser to act as temporary Chairman to call the meeting to order. The meeting was called to order at 3~OO P. M. Secretary Laursen introduced John Hubbard, Esq., who has been retained as independent legal , . counsel for the Civil Service Board consistent with the Board's request and City Commission approval. William Sizemore~ Esq., attorney for the City, and Louis KwaJI, Esq., attorney for Mr. DeSantis were also introduced to all parties. Margot Pequignot, Esq., co-counsel for Mr. DeSantis, was also present. J}~sll:nafion of a Chairmnn for the, DeSantis Henrine. The Board considered the selection of a Chairman for the hearing and this meeting. Syd Snair asked whether the chainnan is permitted to make or second motions. Mr. Hubbard informed him a chairman does not normally make motions without passing the gavel to another member beforehand. David Keyser moved that the Chairman for this meeting and the DeSantis hearing be Johnnie Williams, who, along with Mr. Keyser, has the most seniority on the Board. The motion was' duly seconded by Syd Snair and carr~,ed unanimously. Clarification of the Hoard's Rilles of T?rocedllre for Conductlnll the Hearinll. John Hubbard referred to a memorandum, dated June 18, 1987. from Miles Lance, Assistant City Attorney. to H. Michael Laursen, Personnel Director, regarding the Civil Service Board and relating to ,to procedures for hearings. Lg\tis KwaIl stated for the record he was handed a copy of these procedures al 3~07 P.M. on this dale. ,He sees no reason why the procedure for this hearing should differ from the one used in the original hearing. Mr. Hubbard felt everyone would be familiar with the procedure if these rules were outlined prior to the hearing. This would enable the hearing to run smoothly without any surprises. He suggested the rules be reviewed one a1 U lime and any comments or suggestions be considered at that time. :''' '", " , , . ~", .Jt,<L . i... ,", . \' ~/.'\:' ~":;'~~' 1 ~ I., '" , ' ',' ",::, I .. , " .. ,'" ,j<, ", ' ':;. "," !,.,. '. ';. ... - ";', ", "". ': " ,--,,~. I 'I '" . :.;,!:",. ',I~, .1>~,~..,: " ..' I',': "",' . ,~, \ ":'-" .',. .: '.!,:; ..,",',:.:,;'.;..'.,:..'.,,:.~.,.',,5,;. . 0;' ,"" '. ",:::'.\ ", ,f: . .,....:: " ...., . -, :>:. : :."" '" . '." ' ",.': .! . ..... ' . .', "'. ' "" ,. "," ," I' '. :",: ',:', ',',: .,,:..,.,....'~'I.'..,': ..:.:,/':,'...,'.," . ,.. .".,.'.,:..""1' ......, .." .:',.': ". '" ", ':', ',: :, ' :..," ";.,';' :.,':'",. :,',..,., i.:,::,', '\'.', ',; '..:,:,.,.',':'.".','..,.,...':',.,'.;',:,... ',': ';":'.,,,',,:',,!, ':",";,,:.,::,/,.'..:':,:::,.'f'. >:...',:'::}!::....:,.';,{."i:{:;~;;:,:":~,'!.:,.t,' ", ;':::,2:,'" ,<' '>' . ,..... .. '...,.. .. "::"'.;:. ! ." . ,...." ....i... ,. I,.::,:, ,".,'!",l!';",,: :';':/\', ':'. , "I' "";"""'l::"",..;\,';..;"(,~'.",,,:l.,,:.,, ~ ,....~ . ,e " ' "'.. .'>" ::"... '..' " !<2':;"c' I ., " ';. "':', .:: \.".. ~ -:' .:>:;...~,,'~l.,;:::'.,.:.' J., i " ),', ' " . ':' ':, " .: :> .'1 . ,~,: , '., ',':,,'. "';".> -: :\:' "" '. '. ,;' : (' ", " , .I:, , ' \"', " . P, " ': 1. ..! ~.,' ~ , . \~:, '/'." ",<.\, .':,',":" :".' :11.::::' I ' '. ~' .' . ~ ' "., '. . . ~'" , <.. '~<:~:(I. " c .. ~ .. " " . J '. ~/.. "1' . '" u " t,: . . i.', ~ . 1,,' "'\ :I ",:.'1:.:.", t:. ,,. '0" " .... .':-';, ;;:~}!; "., "', ., ,,' ,"c" . "I' , '>, , " :! . ~ \ .~. <c ",:'\ ",3 'f',' . . ""~ ,.", . I ,\ " ' ,';:11':'/ " C'l j." , f " " . t:' 1',.:' ::,::} "I," , ' !. ','.' .,'!'. ., " ,,'I ; J,o '~ 'r .' I :~'" .: ~. . .,.... "':' :',:~',":' '~J~: 'J- -"L. ~'. ,'l " , ~ ',' , "l, ~I.I',,: ~!.: \ c, 'I: "0 . , I ~... .' , " \. .\ ,. '0 ';0 ';. . ...... ~ " . " Proceedings of the Special Civil Service Board Meeting of January 3, 1989. Page 2 Mr. Kwall stated 1) he did not receive his agenda until this morning in the mail; 2) the rules have been prepared by Miles Lance who represents the City: 3) there were no rules at the first hearing; and 4) he finds fault with only one particular ,lrca. Mr. Hubbard stated the procedure is not being changed by providing some guidelines where none existed before. These will help all panics know how the hearing will be conducted. Johnnie Williams stated these guidelines I1re for the Board to use nOl only during the DeSantis hearing but also for any other mallers that come before it. Mr. Kwall objected again to being handcd the rules of procedure on short notice after waiting more than five months for the hearing date to be set. Mr. Hubbard informed the Board thcy had two options to follows: 1) the panics could review the rules and solicit comments as to whether or not they are sufficient: or 2) the hearing could be suspended at this time and rescheduled for another datc after everyone has had an opportunity to review these procedures. It was his feeling the hcaring should continue with review of lhe rules; and, if at the end Mr. Kwall is still dissatisfied, the Board could take appropriate action. . David Hei'ley moved to consider these rules and afterwards to deteffiline if more time is needed and what action to take. The motion was duly seconded by David Keyser. Johnnie Williams asked for clarification of the motion. Mr. Healey stated his motion was that the Board proceed 'to consider the rules one at a time and upon completion determine if more time is needed. The motion was carried unanimously. , Mr. Hubbard read Number One into the record. There were no comments. Mr. Hubbard read Number Two into the record. This item refers to the presentation to the Board' of . the Hearing Officerts Recommended Findings of Fact and Conclusions of Law. Mr. Hubbard felt an addition to this should be made to include the presentation of any exceptions filed relative to the Hcaring Officer's order. Mr. Snair stated the information is usually submittcd to the Board prior to thc hearing and it's his feeling the rules should reflect this. Mr. Hubbard Slated there are three things to be considcred when forwarding material to the Board: 1) both parties should know what the Board members are receiving; 2) the information to be furnished should be acceptable to both parties; and 3) none of the materials should be objectionable. Mr. Sizemore raised an objection to the word "Rccommended" Findings of Fact. Mr. Hubbard agreed that the procedures should refer to the "Recommended Order" rather than "Recommended Findings of FacL" Number Two will be modified to reflect this change and also the inclusion of a reference to the filed exceptions to this Recommended Order. Mr. Kwall stated for the record that his failure to make any comments docs not waive his objection to the procedure being followed today. Mr. ,Hubbard read Numbc.r Three into the record. This item referred to the transcripts of the Hearing Officer's proceedings and the exhibits presented at that time. ~ :>,..'1>.~ . i Proceedings of the Special Civil Service Dottrd McctLng of lununry 3. 1989. Page 3 ~ Mr. Heuley raised a question concerning whether or not all of the ex.hibits nre aunched to the transcripts. Discussion ensued regarding what exhibits were forwarded to the Board. Mr. Kwall objected to the Board having received the transcript of the entire proceeding before the Hearing Orficer because several charges against Mr. DeSantis were dismissed by the Hearing Officcr and. thercforc, arc no longer before the Board. Mr. Sizemore stated this issue was rnised by Mr. Kwall before the Circuit Court; and it and all other issues. except the one involving Dr. Carwise, were found to be "wilhout merit." Mr. Hubbard could see no reason why the Board could not review the whole record if it so desired. "0' ~ ., . " ;:,,:(~ " At this point, Mr. K wall vehemenlly objected to efforts to keep new evidence from being presented to the Board by Mr. DeSantis. He remarked on the fact it has taken five months to schedule this hearing and these current proceedings arc unnecessary. Mr. Kwall and Mr. DeSantis withdrew from the proceedings at this point (3:27 P.M.). Ms. Pequignot remained in the room as an observer. In view of this fact, the Board and other parties agreed to continue with the proceedings. Discussion continued regarding Number Three. II was determined that since the exhibits arc extenliive. lhey would be made "accessiblell to each Board member at his convenience and not provided to each member individually. Mr. Hubbard read Number Four into the record. This item addresses the question of what transpires when the employee raises an objection to the Recommended Order and wants to make a presentation to the Board. Mr. Hubbard stated the Board could independently object to the Recommended Order despite the absence of an objection by the employee. The Board has the right to modify the Order in any fashion it deems appropriate. It cannot arbitrnrily change the Findings of Fact, but the Board clln change the Conclusions of Law. " t Mr. Hubbard rend Number Five imo the record. This items deals with the amount of time each side would have to present its Cl\SC. A lengthy discussion ensued concerning the time limitation. Mr. Sizemore felt it was important that the parties know beforehand how much time they will be allowed so they mny properly prepare their cases. At the conclusion of the discussion. it was dctennined each side would be given a "reasonable" amount of time for its initial presentation, with additional time allowed for rebuttal and summation. David Healey moved that the Board ask the City Altorney to make the ne'~~sary changes and prepare copies for aU parties to review and the Board reconvene to formaLi' adopt the new procedures prior to the hearing. Mr. Laursen suggested the changes be made by Mr. Hubbllrd and not the City Attorney. Mr. Healey amended his motion to reflect this change. The motion ,was duly seconded by Dave Keyser. Mr. Henley stated lhe intent of his motion was that copies of the new draft be sent to Louis Kwall and WilHam Sizemore also. The motion was carried unanimously. )!olr Dire of Boord nnd Independent Levul Counsel. Mr. Hubbard allowed the parties un opportunity to raise objections to any Board member currently serving on the Board continuing to serve for the purpose of this \ hearing. Mr. Sizemore questioned whether Mr. Snnir should be allowed to serve since he is currently a party to a U.' S. District Court lawsuit filed by him ngainsl lhe City of Clearwater. This lawsuit involves - 'the City's pension plan and lhe question of age discrimination. Discussion ensued as Proceedings of the Special Civil Service Board Meeting of January 3. 1989. Page 4 .~ f..V to whether or not this would be deemed a conflict of interest on the part of Mr. Snair. AI the conclusion of the discussion. it was determined Mr. Hubbard would contact Mr, Snnir's attorney. review some case law. and make a recommendation on this issue. Mr, Hubbard asked how Mr. Snair's replacement would be appointed if necessnry. Mr. Laursen advised him that since Mr. Snair was elected by the employees. it would involve a special election. Mr. Sizemore asked whether any member had a fixed poshion on how the case should. be resolved. Mr. Snair stated any decision rcached would be based on information the Board has received. Mr. Hubbard stated a Board member's previous vote should have no bearing on his right to participate in the new hearing. Dlscus~lon Reau[cHnU Rule!'!: on Pre!'!:entntlun of Fn~ts or Document!'!:. Johnnie Williams asked what Mr. Kwall was referring to when he made comments concerning new evidence which was not presented to the Hearing Officer. The evidence referred to was presented to the City Commission at a public meeting and dealt whh the issue of "comparative treatment." Mr. Sizemore stated there was no evidence on the record concerning this issue. Mr. Hubbard felt the employee's character. his record. and the issue of comparative treatment could be, addressed at the new hearing. Mr. Sizemore strongly objected to allowing Mr. Kwal1 to present evidence concerning comparative treatment since it was not part of the original case before the Hearing Officer. ;J~ '~ '.() Discussion ensued regarding this maller. Mr. Carrozu staled the Board should consider only the disciplinary action against Mr. DeSantis; any subsequent disciplinary action for similar offenses brought against other employees that may differ should not be considered by the Board at this hearing. Mr. Hubbard stated the Board could hear this cvidence and should place whatever importance on it that each member feels it warrants. Mr. Sizemore once again made an objection. Ie" " I ".:.:- / <~l ",: ': j~' (,": ',.\," 1'.\ Other Issues Either Portv Wishes to Discuss, ,: Mr. Hubbard addressed the issue raised by Mr. Kwall dealing with the Board's review of all the issues. including those not sustained by the Hcaring Officer. It was his feeling the Board could review all issues that were before the Hearing Officer. Hc reviewed for the Bonrd the action they could take as outlined in Section 25.05 of the City Code. Basically, there arc three things the Board must be aware of: 1) it is bound by the Findings of Fact; 2) it may modify the Conclusions of Law; and 3) the penalty is theirs to determine and docs not have to be the same as the one imposed by the Hearing Officer. Discussion ensued regarding the type 'of penalty that could be imposed and how pcnallies for different infractions arc imposed. Mr. Laursen explained how the Civil Service Rules arc used hi' conjunction with the Guidelines for Disciplinary Action. It was noted tnat in the charging document. Mr. DeSantis was also cited with violations of the Police Department's rules. ; 'I' /, . ~\ :. :\ ,.' '... ",\ i , ~ '.. ", " , " ~ ,'\. Mr. Williams asked whether it was appropriate for the Board to review the Circuit Court's decision in this mailer. Mr. Hubbard saw no reason why this could not be made availablc to the Board. Mr. Sizemore again stated the only issue upheld by the Court was the one involving Dr. Carwisc; all the other issues were found to be without merit. r ,'. ~. : 0"""" I~ ~ . , Mr. Hubbard advised the Board members they were immune from liability. both individually and collectivelYt for whatever, decision they make in this malter. Discussion returned to the amount of time allowed for the presentation of the case. At the .' }'l' . . >,::~'~."" rJt~'l'c''i.'<:.1 rv,'l .,' 'i 'p ;,~;. ,'~;':<c j.., ';oJ':: ' ':'\ :"..,',. ";';;Ii ~'I;'~;' , ' j ,,:;.. ,!".':;.;;. :', ~f.'~~" .', .':...-:;';!.f: :<,,:..':', .' ": " ,.,. ""., J '" j " . .. ~ '< ::: ',' I,,:,,;~, ' " ",. ", ',,'" '," ' '," " ,,><:,,:::;::;,:~!::}~:.t,~ft~;rtl :',':;"';:;;:,,~;';..\,.,,!::,,\.,~,','.'i';';:",)'(:~\':..} ",>:. ,,: ''; , ! ,,:' . I... r '.'\>..' >.',.:.:~:...:.I,,:,..:.:.,.,. ',' . 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Page S , . ;:>, , ,IrA h: l~\l'~' I:;'.:" . i" conclusion. it was decided that one hour shoUld be sufficient, with an nddhlonal time allowed for, 'rebuttal (ten minutes) and summation (ten minutes). S~hedllllnv of Date of Henrlnll_' After some discussion, it was decided the reYised procedures would be forwarded to all parties , ,and' they would have until Friday. January 13. 1989. to respond with any comments. . Mr. : Laursen would then contact everyone to determine the date for a meeting that would be acceptable to, all. This meting would be for the purpose of adopting the new procedure and " 'selting a date tor the new hearing. All proceedings will begin at 3 :00 P.M. ~ t ~J .' .,Syd Snair moved that the meeting be adjourned. The motion was duly seconded by Bill Carroza and carried unanimously. The meeting adjourned at 4:48 P.M. Respectfully submitted, 'H. Michael' I:aurscn , ,'" PcrBcin~el, Di'recto'r and i'~;\,;,: " "S,ecrctary to '" the' Board !~ .,' ,"" 1!1,~(':, ' ~..,.,:'. , ~\l:d.-.; ','. fl~~MY 1i~~~::,/::'; ::" ,,<' "'" , :-" ~\Y/~I"',...:. . tl!&:;;;' " i~f:',' '" ~~\:~{y..,. .,...,. '.' '.; ~tl~l~ '.',. . ~"$;~~~~:I(.:.~:, ,; . :.'(,F)'~;"l, ~~ . ij~~t,~.;.:\.,::. :\:: ~:. I." ., . ~ii(" , ' '" ., r~~;~(~~(~(,::,:;> .,~A,,::,:::"~~>,::,;,:"'. ',;:.'': ".';, , , ~.~:~~,\ :rr'H:.~~."t\( .....1,J'.(.'liI,~~.~...1:.....".... ~. . li;"~j~,.';\; '.. '~~lY'.,",'~ny.....~.>..~ -J" ." ' "'c' .,J .,..., , . \\ C . I ~ '\ " ',' ...., 'i '1 r ,