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04/02/1990 TRUSTEES OF THE EMPLOYEES' PENSION FUND MEETING April 2, 1990 The City Commission, meeting as the Board of Trustees of the Employees Pension Fund, met in regular session at City Hall, Monday, April 2, 1990 at 9:08 A.M., with the following members present: Rita Garvey Chairperson Lee Regulski Trustee William Nunamaker Trustee Richard Fitzgerald Trustee Members Absent: Don Winner Trustee Also Present were: Sue Berfield Commissioner-elect Ron H. Rabun City Manager Milton A. Galbraith, Jr. City Attorney Cynthia E. Goudeau City Clerk ITEM #2 - Minutes: Trustee Regulski moved to approve the minutes of the February 26, 1990, and March 12, 1990, meetings. The motion was duly seconded and carried unanimously. ITEM #3 - Request for Pension: The City Manager presented the recommendation of the Pension Advisory Committee that the employee(s) listed below be granted a regular pension under Section 26.34 and/or 26.37 of the Employees' Pension Plan. Robert E. Kennedy Mr. Kennedy was employed by the City on December 8, 1964, and has been a participant of the pension plan since that time. Mr. Kennedy has applied for a regular pension from the City of Clearwater. Trustee Regulski moved to accept the recommendation of the Pension Advisory Committee. The motion was duly seconded and carried unanimously. ITEM #4 - Request for Pension: The City Manager presented the recommendation of the Pension Advisory Committee that the employee(s) listed below be granted a job-connected disability pension under Section(s) 26.35 and/or 26.27 of the Employees' Pension Plan. Henry Kohout Mr. Kohout has applied for a job-connected disability pension due to knee injury suffered while trying to arrest someone in his duty as a police officer. He has had surgery to the knee and has had therapy but has not recovered full strength of the leg. Due to trying to cope with the injury to the left knee has caused some damage to the right leg as well. Mr. Kohout was employed by the City on January 7, 1985 and has been participating in the pension plan since that time. Trustee Regulski moved to accept the recommendation of the Pension Advisory Committee. The motion was duly seconded and carried unanimously. ITEM #5 - Request for Pension: The City Manager Presented the recommendation of the Pension Advisory Committee that the employee(s) listed below be granted a non-job-connected disability pension under Section(s) 26.34 and/or 26.37 of the Employees' Pension Plan. Edward W. Voiland Mr. Voiland made an application for a job-connected disability pension from the City of Clearwater. He claims that stress, due to his job, are the reasons for his disability and has provided some letters from doctors stating that they feel his job aggravated his hyper-tension, ulcer conditions, etc. The Pension Advisory Committee has determined that Mr. Voiland meets the requirements for a non-job-connected disability pension. Mr. Voiland was employed by the City on January 23, 1967 and began participation in the pension plan on that date. Charles Castagna, attorney representing Mr. Voiland, stated that Doctors Kedan and Smitherman have offered opinions that Mr. Voiland's disability is job related. He stated an independent medical examination required by the Pension Advisory Committee was never completed. He stated that although the Pension Advisory Committee has recommended a non-job-connected disability, he feels the Trustees have the authority to grant a job-connected disability. He further stated that the Pension Advisory Committee does have the authority to have a hearing for findings of fact and requested that if the Trustees would not grant the job-connected disability pension that the request be remanded to the Pension Advisory Committee for an independent medical examination or hearing. John Nicholson, representing the Pension Advisory Committee, stated they are not questioning Mr. Voiland's disability but whether or not it is job-connected. He stated Mr. Voiland has an extensive medical history even prior to the City employment. Mr. Voiland stated his ulcer condition is not job related and that he has 20% disability from the armed services for that condition. He stated however it is the hypertension and other ailments that have been caused by his 23 years of employment with the City. Trustee Fitzgerald moved to remand the request to the Pension Advisory Committee for additional consideration. The motion was duly seconded. Discussion ensued regarding stress and whether or not it could be considered a job-connected disability in the same manner as a knee injury is considered. Upon the vote being taken, the motion carried unanimously. Attorney Castagna requested clarification regarding whether or not this was remanded to the Pension Advisory Committee for a hearing or just to reconsider. It was stated it would be up to the Pension Advisory Committee to determine what was needed. ITEM #6 -Request by Unclassified Employee to be designated as permanent: Linda Mielke On November 13, 1989, Library Director Linda Mielke, an unclassified employee submitted a memorandum to the Personnel Director requesting that a determination be made to whether her exclusion from the pension plan was proper. The Pension Advisory Committee considered this and it was their consensus that this was an issue to be addressed by the Trustees and they made no recommendation. Section 2.44 of the pension plan provides that the pension plan is hereby created for employees of the City of Clearwater. Section 2.45 provides that "All permanent employees of the City of Clearwater shall be required to pay the assessments provided in this pension plan and are required to participate in the fund hereby created. The Trustees of this pension plan and fund shall have the right to determine, from time to time, which employees are permanent employees of the City of Clearwater provided however, that all employees covered by the Civil Service Ordinance shall be considered to be permanent employees for the purpose of the pension plan." Historically, unclassified employees have not been considered permanent employees for the purpose of participating in the plan except for those who were initially plan participants, as a result of previous classified civil service status, have continued to participate in the plan. Unclassified employees of the City, who are not in the pension plan, receive a 6% contribution to the ICMA deferred compensation program. Staff recommends the request be denied. At the Trustees meeting of January 29, 1990, this item was continued to allow staff to compile additional information regarding the financial and legal impacts. An opinion was sought from Harrison C. Thompson, the City's outside labor attorney, regarding Mrs. Mielke's request. His opinion states that 1) designation of Mrs. Mielke as a permanent employee would so designate the position itself thus mandating pension participation of any person occupying the Library Director position. 2) The issue of disparate impact is real and the designation of one position from a previously ineligible group of positions as being able to participate in the pension program might lead to the requirement of including in the pension plan all persons and positions in the unclassified service. 3) Unclassified employees of the City are at will employees, appointed by the City Manager and designation as a permanent employee for pension participation purposes might infer the existence of a property interest in the job therefore by eroding the City's at will rights. Staff is concerned that if these impacts were to take place, it would substantially affect recruitment of individuals for these positions and also would erode the at will appointment by the City Manager of people in the unclassified section. Mr. Deignan, Finance Director, has indicated an inclusion of the Library Director as an individual would have no more nor less impact to the plan than adding another employee provided there is no retroactive credit except that the potential of the inclusion of an additional employee who might experience a job-connected disability might place a greater impact on the plan. Therefore, it is still staff's recommendation that unclassified employees not be designated as permanent for the purpose of pension plan participation. Mrs. Mielke said she had carefully read the opinions of Mr. Thompson and Mr. Deignan but did not see that there was a good reason not to admit her to the plan. Discussion ensued regarding the impact on the plan of setting this precedent and whether or not it is appropriate for individuals, at this level, to be in the plan. Mr. Laursen, Personnel Director, also indicated that we are currently in a lawsuit with the AARP regarding the previous age 45 limitation in the plan and he was concerned that any changes to the plan at this time would impact that suit. It was stated that until definite changes are made in the pension plan, it is the Commission's desire not to cloud the plan further. Trustee Regulski moved to deny the consideration of classifying Linda Mielke as a permanent employee for the purpose of pension plan participation. The motion was duly seconded and carried unanimously. ITEM #7 - Other Business: John Nicholson, representing the Pension Advisory Committee, requested the Trustees grant a non-job-connected disability pension for Mr. Voiland until such time the Pension Advisory Committee can come back with a recommendation regarding the job-connected disability request. It was emphasized that this would not jeopardize Mr. Voiland's request for a job-connected disability. Trustee Nunamaker moved to grant a non-job-connected disability for Mr. Voiland. The motion was duly seconded and carried unanimously. Attorney Castagna, now representing William Harvey, stated he was seeking guidance regarding Mr. Harvey's ability to seek employment as a dispatcher for an EMS company. He stated Mr. Harvey had been with the fire department for 17 years and had served as a paramedic. Section 2.56 of the pension ordinance prohibits employment in an occupation or line of work which caused the disability. He stated that dispatching is not the same as fire fighting and that Mr. Harvey would like to pursue being an emergency manager dispatcher or instructor in the emergency area and he is seeking permission to accept a position and also requesting clarification of the policy. Discussion ensued regarding what was meant by similar job. Mr. Nicholson, representing the Pension Advisory Committee, indicated that being a dispatcher is part of the EMS system and that the duties of a dispatcher is to advise regarding procedures over the phone. He stated being a dispatcher or instructor in emergency techniques is similar to the job Mr. Harvey held as a fire fighter. Discussion also ensued regarding reports that police officers are accepting jobs as security guards and whether or not this should be prohibited. It was indicated that it is the Pension Advisory Committee's position that they should be. Mr. Harvey stated the job in question is with Medic One as a dispatcher. The job does require physical agility similar to a fire fighter and requires dispatchers to ride and work in the streets once a week. He stated, however, in his case, a waiver has been drawn up stating that he would not be required to do physical work. Mr. Harvey received a job-connected disability from the fire department due to a knee injury. It was stated staff was unaware that this request would be coming forward and it needed more study before staff could make a recommendation to the Trustees. It was indicated this is on the Pension Advisory Committee's agenda for discussion. Clarification is needed regarding what the definition of similar is and who is to make the decision regarding this type of request. Attorney Castagna indicated that he is requesting direction for Mr. Harvey and that he felt the Trustees were penalizing individuals for being disabled. It was indicated that at a job-connected disability provides for 75% of the salary to be paid to the individual and that allowing him to work in a similar job would be a hardship on the system. It was requested that some flexibility be allowed as now people are being affected by this policy and it was indicated that staff is not ready to agree to that as they did not have all the information needed. No general direction was provided by the Trustees in regard to this issue. In response to a question, it was indicated that if a City employee does go out on pension, they can not collect that pension and have another job with the City. ITEM #8 - Adjournment: The meeting adjourned at 9:50 A.M.