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08/02/1993 TRUSTEES OF THE EMPLOYEES' PENSION FUND MEETING August 2, 1993 The City Commission, meeting as the Board of Trustees of the Employees Pension Fund, met in regular session at City Hall, Monday, August 2, 1993 at 12:11 p.m. the following members present: Rita Garvey Chairperson Richard Fitzgerald Trustee Sue A. Berfield Trustee Arthur X. Deegan, II Trustee Fred A. Thomas Trustee Also Present were: Michael J. Wright City Manager Milton A. Galbraith, Jr. City Attorney Mary K. Diana Assistant City Clerk ITEM #2 - Minutes Trustee Berfield moved to approve the minutes of the July 12, 1993, meeting. 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 Lynn Smith be granted a non-job-connected disability pension under Section(s) 2.396 and/or 2.399 of the Employees' Pension Plan. Ms. Smith was employed on October 25, 1972 and began participating in the Employees' Pension Plan on that date. Ms. Smith is suffering from depression which is the basis for her request for a disability pension. She has submitted letters from two doctors and has received an independent medical evaluation (IME) at the request of the PAC. The letter from Dr. Levi Cohen, dated 4/12/93, states, "... Lynn Smith has been under my care since December 11, 1992, for Major Depression ... I cannot envision her returning to any gainful employment without the re-occurrence of the same symptoms that originally brought her to my office." The letter from Dr. Alan J. Waldman, dated 3/19/93, states, "The patient cites no previous psychiatric history and a good state of health until a drastic change in her job situation ... The onset of major depression can either be stimulus or non-stimulus related, though the patient relates some depressive features prior to her job demotion, it clearly seemed to be the stimulus for the onset of her depressive episode." The IME report from Dr. Ron Lozez, dated 6/6/93, states, "In my opinion, Mrs. Smith has a permanent impairment to function as a Communication Commander. Prognosis for recovery is guarded. Based on my opinion, after reviewing Mrs. Smith's job description as a Communication Commander, she is totally disabled to perform these duties." Ms. Smith submitted a request to the PAC for a job-connected disability pension. After reviewing the documentation received, the Committee determined that Ms. Smith is permanently disabled from her position as the Police Communications Manager but further review is necessary to determine whether this disability is job-connected. The Committee was advised that Ms. Smith is currently in a "no pay" status since her benefits have been exhausted. In light of her current situation, the Committee approved a non-job-connected disability pension with the provision that this can be changed to a job-connected disability pension if the new documentation requested indicates the disability was caused by her job. Based on an average salary of approximately $36,327 over the past five years and the formula for computing non-job-connected disability pensions, Ms. Smith's pension will approximate to $18,845 annually. Taking into consideration mortality rates and age the present value cost of financing this pension will be approximately $221,963. Human Resources Director, M. W. Laursen reviewed the request. He said Ms. Smith did request a job connected disability pension; however, the Pension Advisory Committee did not concur. Because she is now out of sick leave benefits and would be in a non-pay status, the PAC approved a non-job connected disability pension at this time with the understanding she might continue to submit medical evidence to sustain her original request. He said this has been done several times over the years to preclude an employee from being in a non-pay status either without pay or pension as these issues can take a long time to resolve. Chairperson Garvey said she had received additional information this morning which she has not had a chance to read. Trustee Thomas moved to deny the recommendation of the Pension Advisory Committee for a non-job connected disability pension. Trustee Thomas said he considered this request to be one of the most egregious violations of what a disability or pension program is about. He felt Ms. Smith is capable of finding work within the City based on broad job skills. He found this to be an internal issue within the City Manager structure and did not personally believe the City should pay someone for mental illness or depression because she is running out of money from her prior medical compensation program. He said he has read the shop steward's report and other information in depth. He said this is an example of the failure of a pension or disability board to see how an employee deems their job to be performed or not to be performed and then claimed depression because something does not happen to their liking. Chairperson Garvey questioned whether it would be preferable to remand this back to the Pension Advisory Committee to review again. Mr. Laursen said if this issue was before the board as a job connected disability pension approval from the PAC, the board did not have the authority to overturn it. A non-job connected disability can be rejected or remanded back to the PAC. He said the pension plan provides that if the PAC and/or the Trustees determine an employee cannot do their current job duties, they would be entitled under the ordinance to a disability pension even though they could perform some other job. Trustee Thomas asked if an employee's supervisor changes the employee's position status and the employee does not like the change, is the City responsible to maintain that employee's original status. Mr. Laursen said position changes occur frequently with reorganizations. Member Thomas asked if this employee was given an opportunity to work at like pay or unlike pay in any place within City government. Mr. Laursen said his understanding is this employee had the opportunity to remain without any loss of pay in that division as the assistant in a management position. Member Thomas asked if there is any other position in the City where Ms. Smith can work and use her skills; and if so, has this position been offered to Ms. Smith. Deputy City Manager Kathy Rice said she met with Ms. Smith personally offering her assistance from Human Resources to find such a job, and to her knowledge, Ms. Smith did not take advantage of this offer. Mr. Laursen said she could have opted to accept that help and move to an alternate position. In response to Trustee Thomas' question, Mr. Laursen said the Pension Advisory Committee is created by ordinance which provides there be a committee of three employees elected by employees participating in the plan. Any changes would need to go through bargaining and conform to state statutes before going to referendum. Chairperson Garvey again questioned whether this issue should be remanded back to the PAC for reconsideration. The motion was duly seconded. Trustee Deegan felt the PAC's recommendation should not be denied without a full explanation. He referred to the medical letter written by Dr. Cohen in April stating he could not envision Ms. Smith returning to any gainful employment and a subsequent letter from him dated June 3, 1993 in which he says ..."however, she cannot be considered disabled because she can function in any other situation, the only area she has difficulty with is in relating to her supervisor." He said he understood the latter letter to be a clarification of his position which is Ms. Smith is not permanently disabled and can work in another situation as long as it was not with the supervisor she was having problems with. Mr. Laursen agreed that is what the letter reflected. Trustee Deegan said there was a lot of reference to Ms. Smith being demoted. He questioned whether Ms. Smith had been demoted. Mr. Laursen said no action had been taken to officially demote her. Trustee Deegan questioned whether the department had been restructured and Mr. Laursen responded it had. A police captain was placed over that division and Ms. Smith was to report to him. Mr. Laursen said her pay and benefits or class title had not been changed to this point. Trustee Deegan asked if there was any reason for Ms. Smith to believe she had been demoted. Mr. Laursen said it could be viewed that way if one is in charge of an organization and someone else is placed over them; however, he said contractually and legally, she had not been demoted. Trustee Deegan questioned on what grounds the Police Chief made the restructuring and whether it had anything to do with the performance of Ms. Smith. Police Chief Klein said the decision to restructure was made subsequent to the fact that Ms. Smith had been absent from duty for an excessive period of time and the actual operation of the communications divisions was being run on a day to day basis between the Deputy Chief and the Police Chief. He said he felt a need to restructure and personally contacted Ms. Smith. He said he gave her every opportunity to report back to duty and informed her if she did not report back, the division would be restructured. Trustee Deegan asked how Ms. Smith's performance had been in the last couple years and the Police Chief said she had received excellent to satisfactory evaluations with the last one being satisfactory. Trustee Deegan had indicated Ms. Smith said the satisfactory evaluation had taken her by surprise; she had expected an excellent rating. Chief Klein said there had been ongoing discussion between the Deputy Chief and Ms. Smith which was documented in the last evaluation. Chairperson Deegan referred to an outside consultant who had made recommendations on how to improve the communications division and asked if this uncovered any dissatisfaction by the employees regarding Ms. Smith. The Police Chief said there were a number of issues where dissatisfaction was expressed but did not recall if any was directed specifically at Ms. Smith. There were numerous concerns in the overall management and operation of the division. In response to a question, Chief Klein indicated the ultimate responsibility for the division rests with the division manager. He said he did not want to take anything away from Commander Smith and indicated she did an excellent job in terms of operation and management of the division to a point. When she began to experience medical and/or psychological difficulties, the management of the division began to suffer. He said she was absent a good deal of the time and he had to deal effectively with the everyday operations of the division. He reiterated he gave her every opportunity to resume her duties. Trustee Deegan asked the Chief if Ms. Smith is capable today of managing the division the way it should be and he indicated "no" and said he has made other management decisions which he feels is in the best interest of the department. Chief Klein said he felt Commander Smith was capable of coming back to duty in the capacity of Assistant Division Commander and gave her that opportunity. Trustee Deegan expressed concern if a non-job connected disability pension was granted, it would appear that unsatisfactory performance is being rewarded with a sizeable financial gain. Trustee Berfield referred to a letter written by Nick Gossman, Chief Shop Steward CWA Local 3179, and asked if the letter was representative of the CWA. Mr. Gossman responded "no"; however, he said the executive board of the CWA is aware of the problems in the communications division. He indicated certain items Ms. Smith pointed out did not fit the chronology of the facts he was aware of. Trustee Berfield felt this pension should be denied and the PAC should be asked to review the request again. She indicated facts in Mr. Gossman's letter were not consistent with facts presented by Ms. Smith. She expressed concern in granting a disability pension on the basis of the job changing, as it does in most instances when there is a reorganization. She referred to statements made in the medical letters indicating Ms. Smith could function in other situations because she is not permanently disabled, the prognosis for recovery is guarded and not hopeless; etc. Chairperson Garvey recommended the PAC re-evaluate the issue reviewing the information presented by Mr. Gossman. Trustee Berfield asked what the process would be if the request is denied and Mr. Laursen said he felt the next step would be effected by the employee. He said if the request is remanded back to the PAC, they would re-evaluate it. Trustee Thomas asked what the employee's next step would be if the request is denied, and the City Attorney felt Ms. Smith had the option to appeal the decision through the court system. Ed Hooper, Chairman of the PAC, said Ms. Smith had been advised by the PAC to gather additional information from her physician. He said the PAC had difficulty in making a recommendation. He said concern had been expressed that if this request is approved, many similar requests would be coming before the PAC. Mr. Hooper said if nothing is done or if the pension is denied, the employee is still vested and can draw a pension in 30 years or at age 55, whichever comes first. He said the board cannot deny Ms. Smith a pension, just aim the request in another direction. He said the PAC has struggled with this request for some time and he indicated they are asking direction from the board. In response to Trustee Thomas' question, it was indicated Ms. Smith has worked for the City for 21 years and would qualify for a pension in approximately 8+ years. It was indicated after 10 years an employee is vested in the pension plan. There was discussion regarding how a pension is calculated. Trustee Thomas said Ms. Smith is not being denied the right to work for the City and Mr. Hooper responded, as the ordinance is currently written, he did not believe the City could make Ms. Smith take any other job other than the position she now holds. In response to a question, Deputy City Manager Kathy Rice indicated Ms. Smith had been offered a job in the City for which she is qualified; however, she was not aware if Ms. Smith took advantage of the offer. Mr. Hooper said he believed if this request is denied, Ms. Smith will pursue a job connected disability pension. The City Manager pointed out a retirement pension would became effective in 8 years; a non-job disability pension would be effective almost immediately. Mr. Hooper said mental stability is difficult to determine, the PAC relies on medical opinions. Upon the vote being taken on the motion on the floor, the motion carried unanimously. ITEM #4 - Other Business - none. ITEM #5 - Adjournment The meeting adjourned at 12:50 p.m.