Loading...
06/11/2009 PENSION ADVISORY COMMITTEE MEETING MINUTES CITY OF CLEARWATER June 11, 2009 Present: Nathan Hightower Chair Tom Jensen Vice-Chair John Schmalzbauer Committee Member Carlen Petersen Committee Member/Councilmember John Doran Committee Member/Councilmember Paul Gibson Committee Member/Councilmember Brian De Witt Committee Member Also Present: Stuart Kaufman Pension Advisory Committee Attorney Leslie Dougall-Sides Assistant City Attorney Joe Roseto Human Resources Director Patricia O. Sullivan Board Reporter The Chair called the meeting to order at 9:00 a.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. 2 - Approval of Minutes – April 9 and May 14, 2009 Member Petersen moved to approve the minutes of the regular PAC (Pension Advisory Committee) meeting of April 9, 2009, as submitted in written summation to each board member. The motion was duly seconded and carried unanimously. Member Doran moved to approve the minutes of the regular PAC meeting of May 14, 2009, as submitted in written summation to each board member. The motion was duly seconded and carried unanimously. 3 – Employees to be Heard – None. 4 – Action Items : 5 – Pending/New Business 5.1. Thomas Stubblefield - Hearing regarding Disability Pension Status Pension Advisory Committee Attorney Stuart Kaufman said the City has the burden of proof that Thomas Stubblefield is not eligible for a disability benefit. He reviewed the hearing procedures and read into the record Code Section 2.397(c)(4)(b)(1). “Any former participant receiving disability benefits under provisions of this plan . . . if an employee accepts employment with another employer in an occupation or line of work similar to the occupation or line of work that resulted in the employee being eligible for a disability benefit hereunder, he shall forfeit the right to his disability benefit.” In response to a question from Attorney Richard Sicking, representing Mr. Stubblefield, Attorney Kaufman said there is a supplemental plan for police officers and firefighters. Pension Advisory 2009-06-11 1 Assistant City Attorney Leslie Dougall-Sides introduced exhibits and requested that they be accepted into evidence. Attorney Sicking requested that one exhibit be accepted into evidence. Member Gibson moved to accept into evidence exhibits: 1) Disability application file for Thomas A. Stubblefield, including PAC order approving Mr. Stubblefield’s disability pension; 2) Job description for City of Clearwater Firefighter and job description for Pasco County Law Enforcement Deputy; 3) Independent Medical Examination by Michael A. Wasylik, M.D., dated February 23, 2009; 4) Pasco Sheriff’s Office personnel file, Thomas Stubblefield; 5) Letter from Human Resources Manager Nancy Berkley, Pasco Sheriff’s Office, to City dated May 27, 2009, re Employment Status; 6) Deposition, Daniel A. Terrone, D.O. with exhibits 7) Deposition, Michael A. Wasylik, M.D., with exhibits; 8) Spreadsheet comparing firefighter and law enforcement deputy job descriptions; and 9) May 7, 2009 letter from retired Major R. W. Stone, formerly with Pasco Sheriff’s Office. The motion was duly seconded and carried unanimously. Attorney Dougall-Sides said the Code does not define the word “similar” and reviewed the dictionary definition, which indicates it means alike in substance but not identical. The PAC approved Mr. Stubblefield’s disability from the Fire Department in August 2005. He now is employed as a Pasco County Law Enforcement Deputy. She said the job descriptions for City of Clearwater Firefighter and Pasco County Law Enforcement Deputy are similar. Attorney Dougall-Sides said at the IME (Independent Medical Exam), Dr. Wasylik determined that Mr. Stubblefield remains totally and permanently disabled and unable to do any heavy lifting or perform the duties of a firefighter. In his deposition, Dr. Terrone said Mr. Stubblefield had reported his neck problems and surgeries at a 2005 examination but, at his July 2007 pre employment physical for Pasco County, did not mention his disability or neck issues. Dr. Terrone said at that time he determined Mr. Stubblefield was stable, marking in the record that the spine area was normal. Attorney Dougall-Sides said in his Pasco Sheriff’s Office personnel file, Mr. Stubblefield’s job application states that he retired from the City and does not mention his disability. In her May 27, 2009 letter to the City, Pasco Sheriff’s Office Human Resources Manager Nancy Berkley stated that Mr. Stubblefield’s file does not indicate that he has a light duty position. Attorney Dougall-Sides said the Pasco County Law Enforcement Deputy job description does not list a light duty position. Pasco County requires Law Enforcement Deputies to meet all criteria in the job description including minimum physical requirements to use force. She reviewed physical requirements in the Law Enforcement Deputy job description. Half of the Law Enforcement Deputy job involves patrol duty. Kathleen Becket’s spreadsheet comparison of Firefighter and Law Enforcement Deputy positions reported that the job descriptions do not detail the frequency of specific tasks, which made comparison difficult. Both positions are classified as “very heavy work” and require lifting, dragging, carrying, climbing, crawling, grasping, and manual dexterity. Attorney Sicking referenced Code Sections 2.397(c)(2)(a) and 2.397(c)(2)(b), and stated that the Code carves out an exception for police officers and firefighters who become disabled. He said the definition of total disability for police officers and firefighters differs from the definition for general employees. He said that carve out relates to Section 2.397(c)(4)(b)(1). He said that section only covers general employees, not firefighters. He said the ordinance and State Statute 175 indicate that firefighters, who cannot work as firefighters, are disabled and are not required to work in similar positions. Pension Advisory 2009-06-11 2 Attorney Sicking reviewed Mr. Stubblefield’s neck injuries and Dr. Wasylik’s report. He said the Law Enforcement Deputy job description is not equivalent nor comparable to the firefighter job description which requires working overhead, climbing ladders while wearing 50 pounds of equipment, rescuing victims, and controlling hoses that exert 150 pounds of force. He said the legal test of disability is Mr. Stubblefield’s ability to be a firefighter. He said the PAC cannot disregard medical opinion that Mr. Stubblefield cannot perform firefighter duties. In response to a question, Attorney Sicking said Code language related to accepting similar work refers to general employees, not firefighters or police officers. He said if the City does not think Mr. Stubblefield remains disabled, they should offer him a firefighter position. He said State Statute 175 defines a disability as the inability to perform the duties of a firefighter. Attorney Kaufman said Code Section 2.397(c)(4)(b)(1) does not differentiate between general and public safety employees. In response to questions from Attorney Dougall-Sides, Human Resources Director Joe Roseto said firefighter job descriptions in the Tampa Bay area are essentially the same. He said while they may be portrayed differently, police officer job descriptions are the same throughout the country. The City only provides light duty for firefighters and police officers when injuries are temporary. The City does not dispute that Mr. Stubblefield is disabled and has no expectation that he would be able to work in public safety. Mr. Stubblefield had reported his position as a Law Enforcement Deputy on his annual certification form. In response to questions from Attorney Sicking, Mr. Roseto said all City police officers have the same physical requirements. He said the City has not offered Mr. Stubblefield a position as a firefighter In response to questions from the PAC, Mr. Roseto said while job descriptions for firefighter and police officer are not the same, both positions are public safety officers. He said if a police officer gets into a violent confrontation, physical requirements are much greater than carrying hose. He said according to the City’s perspective, firefighter and police officer positions are similar; both require physicality. Attorney Sicking said City firefighters and police officers are considered disabled if they cannot perform their full duties. He said the City would not offer Mr. Stubblefield a firefighter position because he is disabled. He said only general employees are considered disabled if they cannot perform other meaningful work. He said firefighters must be able to climb down a ladder while carrying someone. He said Ms. Becket had indicated that similarities between police officer and firefighter positions could not be determined. He said unlike firefighters, police officers are not required to carry anything while climbing. The PAC recessed from 10:07 to 10:17 a.m. Attorney Dougall-Sides said the City had proven that Firefighter and Law Enforcement Deputy positions are similar. She said Mr. Roseto has had significant experience in Human Resources and testified that the positions are similar. She said the vocational rehabilitation letter classified both jobs as very heavy work with similar strength requirements to lift, drag, carry, climb, and crawl. The Pasco Sheriff’s office had opined that Mr. Stubblefield was not assigned to light duty. She said had it been their intent, framers would have separated employment limitations for general and public safety positions in Code Section 2.397(c)(4)(b)(1). She said the Code does Pension Advisory 2009-06-11 3 not require job descriptions to be identical, just similar. She said no court has opined that the City’s ordinance violates State Statute. Attorney Sicking said State Statutes 175 and 185 separate firefighter and police officer duties and the inability to perform useful services if disabled. He said while it is logical to compel general employees to accept similar work, that requirement makes no sense for firefighters or police officers. He said if that were the case, the City would offer Mr. Stubblefield a position. He said the PAC must follow medical opinion and the IME doctor had reported that Mr. Stubblefield cannot work as a firefighter. He said retired Major R. W. Stone had written that he knew about Mr. Stubblefield’s neck injury when he recommended him for hire. He said in her job description comparison, Ms. Becket had indicated that she could not conclude that the jobs were similar as they could not be compared. He said the City had not met its burden of proof. Attorney Kaufman said the PAC is charged with making the final determination. If the PAC finds that Mr. Stubblefield is not eligible for a disability pension, he could vest his pension and draw a normal retirement benefit beginning in July 2011, but that issue is not relevant to these proceedings. He said Code language goes beyond State Statutes 175 and 185. According to those Statutes, the City must meet minimum benefit standards to receive State money for the supplemental plans. He said “participant” encompasses all employees who were employed full time; Code Section 2.397(c)(4)(b)(1) does not exclude firefighters or police officers. He said to be “similar” many aspects of the job descriptions must resemble each other. He said substantial evidence is necessary to prove that Mr. Stubblefield is engaged in a similar occupation. Discussion ensued with comments that police officers also must be able to run into burning buildings and drag people out and some police officer positions have enhanced physical requirements. It was noted that Code Section 2.397(c)(4) does not provide separate requirements for firefighters and police officers related to physical exams. It was stated that State Statute 175 language was satisfied during the initial hearing that granted Mr. Stubblefield a disability pension. The PAC’s fiduciary responsibility to the Pension Plan was noted. It was stated that the PAC is tasked with determining if the positions are similar, not if Mr. Stubblefield is disabled. Similarities regarding job duties were noted; both positions are classified as very heavy work and require the ability to drag significant weight. It was indicated that fire and police positions are public safety occupations with commonalities; broad consensus lumps public safety jobs together. It was noted that Mr. Stubblefield had chosen a similar job when an unlimited number of other occupations exist. It was stated the Code is clear regarding the forfeiture of a disability pension. It was indicated that light duty is not an issue and that evidence does not show that firefighter and law enforcement deputy positions are significantly different. It was remarked that the positions are more different than similar. Discussion ensued regarding the motion. The Chair passed the gavel to the Vice-Chair. Member Hightower moved that the City had met its burden of proof established in Code Section 2.397(c)(4)(b)(1) and the Pension Advisory Committee finds that Thomas Stubblefield is not eligible for a disability benefit as he accepted employment in an occupation or line of work similar to the occupation or line of work that resulted in the employee being eligible for a disability benefit. The motion was duly seconded. Members Schmalzbauer, Petersen, Doran, Gibson, Hightower, and Acting Chair Jensen voted “Aye”; Member De Witt voted “Nay.” Motion carried. Pension Advisory 2009-06-11 4 The Acting Chair passed the gavel back to the Chair. 6 - Director's Report - None 7 - Committee Members to be Heard: Discussion ensued regarding Thomas Stubblefield's ability to reapply for a disability pension should he quit his law enforcement position. Mr. Kaufman said the Code is silent on that issue. It was recommended that the Code define the word "similar" and suggested that it provide separate rules for public service and general employees. It was agreed that this decision was difficult. Attorney Kaufman reviewed recent legislation that increased the pension plan cap for foreign investments and requires plans to divest investments in Sudan and Iran by September 2010. PAC and Trustee terms of office were extended to four years. 8 - Adjourn The meeting adjourned at 11: 10 a.m. ~ Jf;vl kM I tl! V(~ hair! / Pension dvisory Committee Pension Advisory 2009-06-11 5