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02/17/1989 - Special .~ 0, .. Proceedings of the Special Civil Service Board Meeting of February 17. 1989. Page t Present Johnnie Williams, Acting Chairman David Keyser, Member Syd Snair, Member (Orland) Bill Carroza. Member David Healey. Special Appointed Member j H. Michael Laursen. Personnel Director Deborah Lally, Personnel Department Jeff Harper. Assistant Personnel Director John G. Hubbard, Esq., Independent Counsel for the Board William Sizemore. Esq.. Attorney for the City Louis Kwall, Esq.. Attorney for Joseph DeSantis Joseph DeSantis Ed Desmarais. Deputy Police Chief Jim Moore. Police Officer The meeting was called to order at 3:04 P. M. An amendment was made to the agenda to include the approval of the minutes of the meeting of January 3, 1989. Approval of Minute!';. Louis Kwall, attorney for Joseph DeSantis. stated that he understood he had no right to comment on the minutes. Nevertheless, his silence did nOl indicate agreement with the minutes. Syd Snair moved to upprove the minutes of the meeting of January 3, 1989. The motion was duly seconded by Bill Carroza and carried unanimously. Adoption of Rules of Procedure for ConductinV the Henrin!:. AU members had received copies of the comments from Dave Healey and Louis Kwall concerning the rules as proposed. At this point. Mr. Kwall asked whether Hem 3 (Other Issues) on the agenda could be laken first. There were no objections so the agenda was amended to accommodate the request. Other Issues Either Party Wishes to Discuss. Mr. Kwall addressed his Motion to Strike which was given to the Board members at the start of the meeting. He argued that in accordance with the ordinance. the Hearing Officer's sole I responsibility was to submit proposed Findings of Fact and Conclusions of Law. It is not within, the Hearing Officer's authority to make a rccommend~tion as to what penalty should be incurred. The Board has the sole responsibility for making this determination. He feels that 1) the Recommended Order should be senl back to the Hearing Officer for an amendment as to the penalty contained therein or reformed by the Board itself and 2) he should be permitted to argue before the Board the issue of penalty. He stated that at the hearing. he did not argue this issue because there were too many possible penahies that could be imposed. He reminded the Board he had requested subpoenas so he could present witnesses before the Board during the penalty phase of the upcoming hearing. Discussion ensued concerning the power of the Board to issue subpoenas. John Hubbard. independent counsel for the Board. stated he could find nothing in the ordinance empowering the Board to issue subpoenas. Secretary Laursen advised the panics that under the old ordinance. which was changed by referendum in 1978. the Board did have the power to issue .', \,:':'. Proceedings of the Special Civil Service Board Meeting of February 17, 1989. Page 2 .~ subpoenas. However, under the new ordinance. the Board cannot do so. William Sizemore, attorney for the City, stated the City has the ultimate authorhy to decide the penally. It is not bound by the Hearing Officer's decision as to penalty but is bound by the Findings of Fact and Conclusions of Law as long as there is support in the record. He stated it is ridiculous to have a new trial on what other people did. He also stated he did not know how the Board could strike something that someone else said or reform the order; however, the Board can choose to ignore it. Mr. Hubbard advised the Board it should not consider the Hearing Officer's recommendation of penalty contained on page 14 of her order because Section 25.05 of the City Code docs not empower her to make this determination. Mr. Hubbard addressed the question of issuance of subpoenas. He reaffirmed his opInion of January 27, 1989. that the Board should not take tcstimony or receive new evidence on .a.n.x. aspect of the case in accordance with the ordinance that outlines the actions of the Board in the hearing process. It is also Mr. Hubbard's opinion the Board should allow the parties the opportunity to be heard although this is a matter of grace rather than a right and allowing them to speak will avoid a question of tramping on constitutional rights. Mr. Hubbard advised the Board to adopt by motion its position that 1) it will not consider the recommended penalty of the Hearing Officer and 2) there will be no written evidence or testimony of witnesses during the penalty phase of the hearing. ., , I i I I '~ .' Bill Carroza moved the Hearing Ofncer. unanimously. Dave Healey moved that on to new testimony or facts offered the widest latitude respect to the penalty. The that. the Board not. consider the The motion was duly seconded penalty recommendation of by Dave Healey and carried ....0 . . the advice of counsel the Board not open the hearing and no subpoenas be issued and the attorneys be In terms of being heard and arguing issues with motion was duly seconded by Dave Keyser. Mr. Kwall wanted it made clear to the Board that he was not requesting he be allowed to present evidence on the incident leading to the termination but only facts pertaining. to the penalty phase. Mr. Hubbard again advised the Board not to take .il.DJ!. new testimony. The motion was carried unanimously. For thr. record, Mr. KwaIl objected to the Board's position. Mr. Kwall raised the issue of the City's failure to file exceptions to the Hcaring Officer's order as to the two incidents that were dismissed. Mr. Kwall filed his exceptions in accordance with F.S. 120.57(1)(b)8 as instructed in Hearing Officer Diane Tremor's letter of April 20, 1987. , ,~~ . .~~~... . ''''''' ,. Mr. Kwall stated the City Code directs the Civil Service Board to issue an order in accordance with F.S. 120.57(8) and there is no such statute. Mr. Kwall moved the proceedings be dismissed due to the fact they arc based on a statute that does not exist. Discussion ensued. Mr. Kwa1l's objection to the City's failure to file exceptions to the Hearing Officer's order was raised during the hearing before the 'Circuit Court. The Court found all issues except that dealing with Dr. Carwise to be "without merit." Mr. Hubbard's stated the City's failure to file exceptions did not necessarily preclude the City from raising questions. Mr. Sizemore objected to Mr. KwaIJ's making a motion to strike at this time when he did not do so at the time the order was issued. The City should be allowed to raise issues also. Discussion l'~ ' .' ',I' I It.'.. .~;~, '. -;. \ . c'.....,.' . '.: ,. '.'.;.. "...;" I' .:' ", ,:','::;:.:<r:.:i:~. 1_. "" . : ,,'..':., : " ':':::,; ,r;: ('i ,,: .: :,:<.:..':,'~.. . I, I .. { ,>'r.;,.,><:<:.'~,:.::;."<I::, :. . . >,: .' I ,'.' . ~ . c , ":J.c ..::,,: . ;\' ~l. ,> . < , :,;1, . ,. IC, . . ~ I , 1, ,I " .. .j ., " ., , . '. r , : .,' ,'. I <,'" .. .~I. ,..., I ,'I; I' .: "l '~/ ~~~ .,~:. , '):~.' ,!;i;;.y, ~>: ': :;';, :.., ..r ,i . '.' "~"l " . > ';:~! ~ I:, ..... ~ , . ; ,.,'~ :- , ~ . j < : I ? ... .~ ,d . rl i . . . c.' :.f. .1' >. . " "" ',/;>';:';;[l\,;:j,;~:,:,~:;: ..' :,",,;,:,.,q' ':" ';", ' . " . .\,'.,. . t \ I. .". \' . :':.>~. i:~:~<'.!t: 1.:..../~.,.i;I',.',';:.:;'..~'~<.:.":':::I:.'~."".:.,.,::' ~.. ."", '::;'. " I~ '.-","",:".IiL'.,~.:.t. . , I~ ,<!<;~:; i-;,;,::.~.'\.", >::(.;'.~::.: <, '.:. .:.:(.~} :;:'. >,',.', · 'i :,: .; /. .oj:!,., .. r,=:~! ~ . L !' " ~ (c,l' ...,;, '. .' j'.... ' " . n ,"' :; r' ,. : \~ :! -'!l. , .'" , .: ~~" ., I . .. , .' . ~ : . ", ;. 10' ; I .:>., i. ).\~,i.,.:;~...,!.;:(:,:.'/..:/ .' .. . ... ..:." :-:-::' :~ > \" ;<:; :'>. ;~:>;':l~.' .;.'....: ....,\;::'.;/!r::'I,:..d;:'.::::::: ., .:u~'" ?,/'.:'::Y~I) }. . i,","> II' ',I.> .'.:. .' r.~ ~. . . ~" ..' , ,.. ., . \" ..'"[ . ;~(.I '.. , ....,. ....\. 18. . ;:" ,':: ':;\"'~" , ,,', . .::-~::L:. ~:: :/'\'~:'~ ",F'. "> ,'.\. , .'\:' I lj" . f<..\' : '-.I.... I,.,;. :':. , , l. r ~ /,;'. ~ ~'~' '. \.1' . . ~ ~ .;" '.:) . \ , \';";" .' ' .' ",. '. :.;''' :.(~.':.. : ..''. : :';' : . ,. \ '\ I' .;:! .::. ,>~ '; : "" \ ...f . , . J,:.:'~; ':' : ",: '", ,: , ': ~. . I' '.,.' .J' :' :-;\' I. ~ "::'; .j:' ,.. . . Proceedings of the Special Civil Service Board Meeting of February 17. 1989. Page 3 ensued. Mr. Carroza questioned why none of these issues had been raised before and 8re only coming out now. Mr. Healey asked If any action had been taken on the exceptions. Mr. Hubbard stated it was difficult to rule on issues that have not been raised yet. Mr. Hubbard will research this point Bnd report to the Board in writing as soon as possible. Syd Snair asked what issul:s the Board would be addressing since things were being discussed that were never brought up before in the other proceedings. Mr. Hubbard advised him the Board would bear the penalty issue again as though it had never been heard before. Mr. Hubbard clarified the two points raised by Mr. Kwnll. The first was his concern with the City's failure to file exceptions to the Hearing Officer's Recommended Order. Dave Healey moved that John Hubbard research and give his advice as to Mr. Kwall's position regarding the failure of the City to file exceptions. The motion was duly seconded by Bill Cnrroza and carried unanimously. The second point was Mr. KwalPs contention that the ordinance refers to n non-existing statute and, therefor, there is no basis for these proceedings since it cannot be determined if they are procedural correct if there is no statute to violate. Mr. Kwall moved that Mr. DeSantis be reinstated with back pay with a hearing to be set to dctcnnine costs and fees. - Mr. Hubbard stated he hadn't researched the question of the incorrect citation. However, he feels if, this was a typographical error, it would not necessarily destroy the constitutionality of ~.:, 0 the proceedings. He suggested Mr. Kwall's request be denied and the meeting continued. ;, Mr. Sizemore made no comment. Mr. KwaJJ asked that he be allowed to question Dave Healey as to his qualifications to serve on the Civil Service Board. Although this issue had been addressed at the meeting of January 3, 1989. from which Mr. Kwall withdrew, Mr. Hubbard saw no reason why the Board should not allow the questioning. There wcre no objections from the Board members. Mr. KwaIl asked Mr. Healey, who is the head of Healey Consulting Group, Inc., whether he had any contracts with the City of Clearwater over the past year. Mr. Healey responded he did havc a contract with the City and received final payment on the contract in October. 1988. Mr. Kwall then asked him how the City of Clearwater was involved with his candidacy for the executive director position with the Phi'clIas County Planning Council. Mr. Healey stated Commissioner Don Winner was one of the members of the council, which is comprised of representatives from all cities in PinelIas County. Mr. Kwall asked when Mr. Healey was appointed by the City Manager to the Civil Service Board. Per a letter from the City Manager, his appointment was made on November 21, 1988. Mr. Kwall said the order from the Circuit Coun was received in August. 1988, at which time Mr. Healey would not have been eligible to serve on the Board. Mr. KwaIl had requested from the City copies of contracts, invoices. and correspondence between the City and Mr. Healey and stated he had not received any invoices. :. OMr. Sizemore asked whether Mr. Kwall w~s ~aking a formal objection to Mr. Healey .continuinp :;. to serve on the Board. Mr. Kwall stated m VIew of the fact Mr. Healey was not appOInted untt! after his contract had been paid, he would have to say that he did object to Mr. Hcatey being on the Board. .I. I'. " I. "1" "c(c \ ':'-1 ./,; . }I, '., r.. ~.. ,. . 'I," ..... ".~,:, '," +" 'f :., '"-:;.,;, . ",. ;,;;,' , .. . . .. ,'~ ,1..'" I.. - . ': ~ '. I~.) "'" I . j . '.'.' .:. ,', "(..:':;:".>";.. 'f "', ;<',' ii'", ':i.' .(;':.,," . ',I , .'. .'.' .' .. ::.:.:',(. ~, . ..1. . .": ;!;/, "~'..,,'.;:".. I.'I.;"~.;,\ '.. , (., ..'.:.~.:!/:::.'> , ' :, ' '.: ' '~."""" ,,'.,:, ,',. \~'J , "':J",/::"",.:~,, :;':}:,;;::','j':';::,::;:;,j::: .', :;.i'.C . 'I I.) ( . I" ... ..'....:;',......,'.' ',>,". :.,': :,J. ..,;.::,:;.',..'.::;~:,'~.).;'. ... .." .:.'....,.::. ...,....,...;. '.'. ..'\' I'.C. 1....:,;..,:.;..j.(:.;:'::;:\:J:>~ , . . . >1; C',",' J>" .cl".>./:'~>l,::'c::'~;'.:""I~<-:'1 /"1:-, ' ....',.. Syd Snair moved that unconstitutional be denied. curried unanimously. Mr. The Kwall's motion the Dave procecdin gs Healey and request to declare was duly seconded by ,'.' " :, I ~.. 'n . > I ':.. ' ~' :. .:, ': , ,'l" ")"'" ..., '\,r,~~., ' c;, \ I,' '. . . .'. II.....; C" ~ ~:;; " . ., . ,.11 , ""I, . I' , ~'.I' ,u , ~ ~:.. ,:c~,::~:;:~'.~./;' j :....' "'::.'.>\~):'~.;:::>' . I. .,.. :,; i .;, (f ,. ,". . ',"',l'. I '.. ". .''L. ...., I, , ,j t I': ~ '.' :'" ".i" , r :: : .. ~": ' . " '~/ . ) I { ..: :::)i~:.::\ ~;I I; '::.. .:, . ,',,, .~ .'. '. , : . , ... .,. I" '1..1 .: !.,..., ~ .', ,,' h,' ;r: 1, "... '. 'f~:,:".I. '~ ; '/", /:_: ; ~ j c, '"'," ';i I.;'?,l:{,:~,'~.:~' ./:' (,~,:, " , .:1, ,~.'.~ ":.(.,\. 'c',! .. ,. .~'. ':'" . ii./ '1 '. .' I ~ ';! ~':?':.'l:("'.:':' ..'. .,~ .' .! .:':: " " :; ~ >., 'c' "."', ~ , >~'... \' ,: , " ,J ,I , ,,' /.. .; '~ 1, . j. " ':, ,1 I ,.1~' l",": < I ,r" L:,,;" I l" <,( . , . , h .1'. ,.. ~, 1.< .qr.c':.'.: ".1:{I:,<:.-. " ., . ',' :., ~~ I . \. , ./':' ,;; .' ., : ',',::.; ':~ >. . , , ." .1,'; , I" ~ ", . \ .' .,. 'j J. .j ", "i~:".:\' r I 1 , l I. I ~ 'f , 1 , , ,11 ... ~ ''': l I, .>, (';.-i.:'; if .~ r. ~,'~. .~, ""I.. . \. .1 ,'". ...,8.... ;' I. .... '.' . .. ,. ,.. Proceedings of the Special Civil Service Board Meeting of February 17, 1989. Page 4 Mr. Hubbard stated he had reviewed Mr. Sizcmore to disqualify himself. interest cxists in either instance and Board. this siluntion and thnt of Mr. Snair who was asked by It was Mr. Hubbard's opinion that no legal conflict of neither member should have to remove himself from the Discussion ensued concerning the availability of the exhibits presented to the Hearing Officer which arc part of the record. Mr. Kwall fclt the exhibits should be copied to the Board membcrs since they were presented in the first hearing before the Board. All Board members felt the exhibits were readily available to them in the City Attorney's office. Adoption of Rules of Procedure for Condllctlnc the HearinL!. Mr. Hubbard addressed the comments made by Mr. Kwall in a letter dated January 12, 1989: 1. Mr. Kwall objected to the order of the presentation. All Board members were satisfied with the current procedure (employee's position-Chy's position-employee's rebuttal-City's rebuttal-employee's summation-City's summation) as outlined. 2. Mr. Kwall questioned under what authority the rules arc adopted. advised that the Board could establish its rules. Mr. Hubbard 3. Mr. Kwall asked whether written material could be submitted. The Board will have no problem with wriucn material ns long as it is appropriate and within the scope of what the Board will allow. Mr. Hubbard addressed the comments made by Mr. Healey in a memorandum dated January 11. 1989: 1. Mr. Healey suggested there be headings and titles. All agreed. 2. Mr. Healey suggested the order be changed to reflect that the transcripts and exhibits of the Hearing Officer be presented before the Hearing's Officer's Order and exceptions thereto. This change was made. 3. Mr. Healey suggested IV (d.) be changed to V and titled "Board Action." This was done. :. .. ,. 4.. Mr. Healey suggested V be the Boardts rules. ::-'0 ' . t.. ~ . , , . : . ~'~,: . ~ .' :,,'l'<:";' c" ":\' r ' "" l ':j'.';. ....';' ':.<. , .. . '. .~ ' '. ':. \,,\: '.' :. 'J:\~,~:,.: .\'. I .' I .:. ",'\ .</:;:!: .'::':.;.:'/.1./ . ~,:?l." ,,:~.' ~<", j I '.":' . .' . 1 \' I ~ .,1: ,.. :;... ":..l'/ .' -.'!. ..:/{' Mr. Hubbard will meet with Secretary Laursen to make the changes. and they will be mailed to all panies. Mr. Sizemore questioned exactly what the Board will consider by way of argument. Mr. Hubbard's letter of January 27, 1989, referred to those facts that arc "of record." Mr. Sizemore had a problem with Mr. Kwall raising the issue of comparative treatment since this was not pan of the original case before the Hearing Officer. A clarification wns made that "of record" referred to anything in the transcripts of the proceedings before the Hearing Officer. Mr. Keyser informed Mr. Hubbard that, he has information concerning Mr. DeSantis' performance in the material he received for the last hearing. It was decided that all information presented to the Board members when they held the first hearing will be provided to the two new members (Mr. Healey and Mr. Carrazn) so the same information is available to all parties. Discussion ensued concerning the issue of "comparative treatment." It was the consensus of the' Board members that they would not entertain argument about this subject. Mr. Kwall .: \ .1 ' . , . :' ," .. ..... .t '. ::,.;. .:' ' , :' . . it.; " .' . , .~ ..~.' . '," .' , ., ; ,.:: . ':::~'.<:S:~.;>t"... . ,. . . ..... '. ... ., '.. ,.I.. , ",!;', ... c.,.. ',',:' ",f .;.,: ~, . . ::. < .,,~... 1',\ ..'., . , . ~ . _ '. "" l..,' 'i.;",~ i . "~'t"'.)">~':;.:I.:. ":~<:.:I . ::,1.: '.:: .'.. ""', I..,:" . It... ,'." :' " .. .: "I:.,://;:.?, ,. ";;:~..;.' ;';::/ ; ; . . ,:' /.... . I ~. ,. . ~J I.. '. '. .. {, ..". c, ~. ~. 'f., ',:, , , ,\' l' ~'I' .~' ; ~c(' '/ ::" .,. . .,'..... : t~,~.? . . ' . ~ It' ,~ . ,{ J I d.',i: ", I' ':~\:'.~:"< ': '\. I~. ::::";,l ~.", . :'.'::,~:':~::~::: '::.;,~,;. : . j :'.::c?:.:.r. {,' ,I:,. " "' ~ ':--.'1"\)' >c~"'..-;"":)' ~', " '., . .,.'.. (,:1. .. ~ ,.'. .. i ~:'.. ":: :::.;~>:;':~' /:.: .:/ .. ,. .. . ",I .. ,1., '., 'J ' . \ . "',:. . ~:\ '. ",01 . , ...., , ' ~." ! , ' , , ~'':o \ I. '.'>~:, :.',...., .': :; : ~ c ,:. ~I ,~. ! , 'c' . '. "'\"/ , , ,',.' ',,\I~ ,: > . 'f n.... ,'j . )...-"; ~ . l .. I I' , ,>'~. 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Proceedings of the Special Civil Service Board Meeting of February 17, 1989. Page S /:(Y'.'.:":"::( 1"....:'.. .: ,.;' .;. '/,- ,: .. 1" ~. c < .~.:j{:.. .' f~:. :, r ~lV ,} ~ . objected to the Board's position. Mr. KwaU will prescnt to the Board In writing what he would be arguing if' he were penniucd to raise the issue of comparative treatment. This submission 1s solely to protect his position in the event an appeal is needed. Syd .Snair moved to amend the rules as discussed and adopt them as amended. The motion was duly seconded by Dave Keyser and carried unanimously. There was one other issue raised by Mr. Kwall dealing with the appointment of Mr. WilJiams. It was Mr. Kwalrs feeling the Board is not properly constituted since all current members did not appoint Mr. Williams. Mr. Hubba.rd stated it was not the intent of the ordinance that each time the Board membership changes the new members must reselect the fifth member. The Board is properly constituted. SeheduHne or Dnte Qr fleorlne. Discussion ensued as to the scheduling of a date for the hearing. Mr. Carroza advised all present he had a Summons to appear in federal court on March I, 1989, and did not know how long. it . would take. After more discussion, the hearing was scheduled for Thursday. March 9. 1989, at 1:00 ~.M. subject to the availability of Mr. Carreza. . The meeting adjourned at 4:47 P.M. . Respectfully submitted, 1) 'I. .1 L' ~:;;'.O'. . .. , ~. l . . f." . .. ' II ,,\ ~~~.. < . ~.. ~...~;\ < " }:.:, . .\::'. ':.: ~ ~ . ~~;.: l~:'.(. " " ".