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05/09/1996 PENSION ADVISORY COMMITTEE CITY OF CLEARWATER May 9, 1996 Present: Rita Garvey Chair/Mayor Richard Breest Committee Member - arrived 9:03 a.m. J. B. Johnson Committee Member/Commissioner Robert Clark Committee Member/Commissioner Pat Greer Committee Member - departed 10:48 a.m. Pat Shepler Committee Member Dick Fitzgerald Committee Member Leslie Dougall-Sides Assistant City Attorney Michael Laursen 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. ' ITEM #2 - Approval of Minutes Member Clark moved to approve the minutes of the regular meeting of April 16, 1996, as recorded and submitted in written summation to each member. The motion was duly seconded and carried unanimously. ITEM #3 - Action Items It was noted the PAC (Pension Advisory Committee) needs to appoint a Vice-Chair. Commissioner Clark moved to appoint Member Johnson as Vice-Chair. The motion was duly seconded and carried unanimously. a) Review and action on Employee Requests for Years of Service Pension 1) George Odishoo - Firefighter, Fire Department - 20 years of service designation - hazardous duty provision Member Johnson moved to approve a Years of Service Pension for George Odishoo. The motion was duly seconded and carried unanimously. The effective date of Mr. Odishoo's retirement was discussed. Human Resources Director Mike Laursen said Mr. Odishoo selected Separation Pay Preference #2, allowing him to extend his termination date by time due for vacation, floating holiday pay, etc. b) Review and Action on Employee Requests for Non-Job-Connected Disability Pension 1) Walter J. Blanks - Equipment Operator III, Public Works - Non job-connected Disability Pension Mr. Laursen said new disability review procedures have not been adopted. Walter Blanks applied under the old procedures and provided letters from two doctors with his application. Mr. Laursen reviewed the previous disability procedures and recommended the PAC develop new rules. In answer to a question, he said the former requirement of at least two meetings to reach a decision on disability requests assured reasoned thought and allowed the application to be contested. Mr. Laursen said Mr. Blanks is waiting for a kidney transplant. After using up his sick leave during a long absence, his condition improved and he returned to work. Subsequently, his difficulties returned. It was questioned if Mr. Blanks could perform another City job. Mr. Laursen noted the new ordinance requires addressing that issue. Public Works Director Gardner Smith said Mr. Blanks is weak as a result of ongoing dialysis treatments. The physician letters indicate Mr. Blanks' condition is permanent and severe. It was felt Mr. Blanks may be unable to work at another job. During further discussion regarding the need for two meetings to address disability cases, Mr. Laursen suggested not requiring two meetings once new procedures are in place, as cases will not be considered until IMEs (Independent Medical Examinations) are completed and interrogatories answered. Consensus was that two meetings should not be mandatory but any member can request additional information and postpone a decision. Member Johnson moved that Walter J. Blanks be granted a non-job-connected disability pension effective June 1, 1996, based on Mr. Blank's disability that resulted from off-the-job circumstances which are described as end stage renal disease and the need for a kidney transplant which has made him permanently unable to perform his job and documented by the medical statements of Jerry M. Littlefield, D.O., James E. Lett, M.D., and Steven Schwartz, M.D. The motion was duly seconded. Mr. Laursen reviewed the criteria for finding an employee "disabled." With respect to Mr. Blanks, he recommended including a condition in the motion to allow the City to review whether available positions exist in the City in which Mr. Blanks can work or be trained to perform. Staff will advise the PAC by memorandum if no position is available. He said call back provisions permit the City to call back a disabled employee in the future. In answer to a question, Mr. Laursen said according to the new ordinance, a disabled worker must accept a position if one is available and the worker is qualified or can be trained to perform the work. It was suggested the intent of alternative work is a laudable goal for workers disabled by isolated injuries but this disability is a devastating, metabolic event. Concern was expressed regarding forcing a seriously ill employee to accept a new position. Mr. Laursen expressed his concern the PAC must follow the language of the ordinance. Assistant City Attorney Leslie Dougall-Sides said the PAC can issue a finding based on the committee's opinion that Mr. Blanks is not currently able to work even if an alternate position is located. It was noted Mr. Blanks may be able to return to the City following a successful kidney transplant. It was suggested forcing an employee to return to work while in poor health would be a liability to the City. In answer to a question, Mr. Laursen said the Pension Trustees do not have to approve PAC disability actions. He said he was comfortable with the PAC conclusion in this case that the employee is unable to perform any type of work. Upon the vote being taken, the motion carried unanimously. c) Approval of New Hires as Pension Plan Members In response to an inquiry, Mr. Laursen reported staff checked with the Police Department and determined two new hires in question were not previously processed or rejected by the Clearwater Police Department. Concern was expressed one new hire's file indicates he had previously tested positive for tuberculosis but his chest x-ray's results were negative. It was noted another file referred to a previous chest x-ray. Some new hires have had back problems. The files document previously existing conditions. Mr. Laursen said a pension ordinance provision states an employee cannot obtain a disability pension if the disability is predicated on a preexisting illness or medical condition. In answer to a question, he said the City cannot discriminate against applicants who are able to perform and are not communicable or a risk to anyone. The City is obligated to follow ADA (Americans with Disabilities Act) provisions. All new hires accepted into the Pension Plan qualify for basic retirement benefits even if they are precluded from disability pension because of a preexisting condition. Human Resources Director Michael Laursen said he had reviewed all physician recommendations and reported all listed new hires meet Pension Plan criteria. Member Clark moved to accept the following employees into membership in the Pension Plan: Date of Pension Employment Elig. Date. Leman Adams, Police Service Tech. Police Department 06/27/94 04/15/96 Thomas Carrick, Bldg. Const. Insp. I Central Permitting Dept 04/15/96 04/15/96 Christopher Carino, Police Recruit Police Department 07/13/92 04/29/96 Joseph Egger, Police Recruit Police Department 04/29/96 04/29/96 John Griffiths, Police Recruit Police Department 04/29/96 04/29/96 Christopher Housholder, Police Recruit Police Department 04/29/96 04/29/96 Tim Hulbert, Tree Trimmer Parks & Rec. Dept. 04/29/96 04/29/96 Adrienne Kendrick, Staff Assistant I City Clerk Department 04/15/96 04/15/96 Kenneth MacMartin, Police Recruit Police Department 04/29/96 04/29/96 Theodore Miller, Police Recruit Police Department 04/29/96 04/29/96 Dawn Musick, Staff Assistant II General Services Dept. 04/10/96 04/10/96 Robert Orton, Mechanic I General Services Dept. 04/29/96 04/29/96 Lori Pratt, Custodial Worker Police Department 04/01/96 04/01/96 Kurt Rodriguez, Police Recruit Police Department 04/29/96 04/29/96 Tereasa Roose, Library Assistant Library Department 04/29/96 04/29/96 Tanya Smith, Police Service Tech. Police Department 04/15/96 04/15/96 Shawn Stafford, TV Production Spec. Information Mgt. Dept. 05/06/96 05/06/96 Charles Wilson, Police Service Tech. Police Department 04/15/96 04/15/96 The motion was duly seconded and carried unanimously. ITEM #4 - Pending/New Business a) Discussion of procedures for processing employee disability pension requests Mr. Laursen reported working with Deputy City Manager Kathy Rice and Ms. Dougall-Sides to refine pension procedures. Mr. Laursen distributed a revision of the draft procedures provided at the last PAC meeting and reviewed added language. In answer to a question, he said the employee elected committee members did not appoint a nominating group before the last election due to unexpected resignations. He recommended the PAC selection of a Chair and Vice-Chair for the year occur each April, to coincide with the City election process. It was recommended the term "Chairman" be changed to "Chair." A list of members with term expirations was requested. Mr. Laursen noted the City Commission needs to designate the two Commission PAC members with two year terms and the one with an initial one-year term. All future terms will be two-years. Mr. Laursen noted proposed language defining PAC staff as being Human Resource employees. He also noted clarifications regarding the PAC's legal adviser, conflict of interest provisions, the use of legal counsel representing the City before the PAC, and reviews of the scope of medical exams. It was noted new employees receive a great deal of information during orientation. It was suggested new employees sign an acknowledgment indicating they are waiving their rights to disability benefits for pre-existing conditions disclosed during their medical examinations. This form could be a contract. It was agreed the City should clarify the preexisting exclusion. Ms. Dougall-Sides felt the ordinance had contemplated some type of acknowledgment. Consensus was for the Legal Department to put together a statement for new employees to acknowledge the preexisting condition exclusion. Mr. Laursen referred to the disability definition. It was questioned if the condition of disabled employees is checked. Mr. Laursen said under the previous ordinance, an annual pension entitlement form was sent to pensioners, survivors, etc., to update addresses, report on employment, and for them to indicate if their disability still exists. The City has relied on the honesty of pensioners to provide accurate information. The new Pension Plan allows the City to call pensioners back to work although no process has been developed. In answer to a question, Mr. Laursen stated few cities have call backs. It was recommended the City contact Social Security to determine if pensioners have worked elsewhere. It was suggested staff advertise in the National League of Cities' Magazine regarding callback provisions other cities use. In answer to a question, Mr. Laursen said when a pensioner returns to work under the new Plan, the pensioner becomes a City employee again. Mr. Laursen said no procedure addresses an employee pensioner becoming disabled again after returning to work. Resignation language to be incorporated into the application for disability and retirement forms will distinguish between active and inactive employees. Those who use vacation and sick leave benefits to cover a period from stopping actual work to a final retirement date will be deemed inactive. Mr. Laursen referred to medical opinion letters which should reference the applicant's ability to perform typical work tasks to permit judgments to be made regarding alternative City jobs. A separate form may be developed for doctors to identify specific limitations such as the ability to lift, stand, bend, etc. It was noted job descriptions may need to be clarified. Mr. Laursen said many job classifications are being broadened. Professionals other than doctors may perform occupational assessments. He said information available by the signed release form is identified. Language in the proposed disability procedure recommends not repeating invasive tests if physicians judge tests are current. Ms. Dougall-Sides referred to the proposed hearing procedures. A deposition component was added for the testimony of witnesses unable to attend the meeting. She indicated the proposal dose not include procedures related to PAC issuance of subpoenas as authority for issuance of subpoenas is not clear. Staff is responsible for providing copies of all relevant documents to the PAC and scheduling hearings in a timely manner. The participant is responsible for costs of discovery requested by the PAC or City, the appearance of witnesses, and making a verbatim record of the proceedings. The burden of proof shall be on the participant. Legal counsel needs to file a Notice of Appearance and the participant must supply documents and a witness list 10 days before the hearing. Tardy documents will be considered at PAC discretion. It was noted physician reports are not always produced promptly. Ms. Dougall-Sides noted the PAC has the option to continue a hearing. The staff file will be made part of the record. The introduction of hearsay evidence is restricted and objections are permitted. Statements of counsel will be considered argument, not testimony, unless based on personal knowledge. Participants who later appeal must assure a verbatim record of the proceedings is made. Participants may need to hire a court reporter at their expense. Witnesses will be required to testify under oath. Ms. Dougall-Sides recommended time limits: 1) opening statements - 5 minutes; 2) presentation - 30 minutes; 3) rebuttal - 10 minutes; and 4) closing argument - 5 minutes. Allotted times can be divided up and used by more than one person. Parties can cross-examine witnesses, conduct redirect examinations of witnesses, impeach witnesses, and respond to presented evidence. Following the hearing, the PAC will make their determination. If the application is for a job-connected disability, the PAC shall indicate if job performance caused the disability. The City shall have the opportunity to assign the applicant to an available alternative position in appropriate cases per the ordinance. The Chair signs the final determination. PAC decisions regarding disability pension applications shall be final and binding. In answer to a question, Ms. Dougall-Sides said either the City or applicant can hire a court reporter. The need for a court reporter to attend all hearings may depend on the complexity of issues. She did not think one would be required for all hearings. To assure information is available to the Participant and City, it was suggested a court reporter attend all hearings and the cost be split between the Participant and PAC. Ms. Dougall-Sides noted the cost for appearance is not high but transcriptions can cost hundreds of dollars. It was noted some participants may not wish a reporter. Ms. Dougall-Sides said attorneys generally order a court reporter for difficult cases. Mr. Laursen referred to the proposed disability application and recommended adding a paragraph referencing exclusions related to the existing injury provision and forfeiture of benefits due to certain offenses. It was noted the proposed process is tentative and can be refined later. Member Johnson moved to approve the draft as presented with the understanding refinements may occur and that the Legal Department will add a statement referencing exclusions. The motion was duly seconded and carried unanimously. A final copy will be forwarded to the PAC and copies will be available to staff, unions, etc. The PAC recessed from 10:22 to 10:31 a.m. b) Discussion of distribution of PAC agendas and minutes to all employees It was noted employees have expressed concern they are not provided information regarding PAC actions. It was suggested all Agendas and Action Agendas be distributed for posting on all department and division bulletin boards. Minutes contain medical information and concern was expressed regarding privacy issues. Ms. Dougall-Sides noted medical records become public record as soon as they are part of the agenda packet or are presented to the PAC for action. It was agreed medical details should not be distributed City wide. It was recommended notification on the Action Agenda regarding availability of minutes not be included. Consensus was to distribute Agendas and Action Agendas for posting without noting minutes' availability. c) Request from Gardner Smith to buy back time Public Works Director Gardner Smith was employed by the City in January 1962. He resigned his position when he was drafted into the military in 1964 and received his pension money less 20% when he was drafted. He returned to the City in 1966. He requested buying back pension service credit for the two years he worked for the City. He would accept a credit for the two years of military service also. He said this option never had been available to him previously. The PAC will consider the request once actuarial numbers are computed. d) Request of Lois Maroon for pension service credit Ms. Dougall-Sides distributed an opinion letter regarding Library Branch Manager Lois Maroon's previous request. The attorney opinion reviewed the history of the case and indicated Ms. Maroon had equitable and legal arguments in her favor. It stated good grounds exist for granting her request. Ms. Maroon reviewed the background of her case. After a six month absence, she was not permitted to rejoin the plan in July 1985 because she had just turned 45. She has requested reinstatement several times since then. After the pension laws were changed, she bought back her pension service credit from September 1978 to January 1985. She requested being credited for the four years, four months between the time of her return to work and her re-entry into the plan. Mr. Laursen said Ms. Maroon is not asking to buy back the time but for the Pension Plan to credit her with the four years four months because of the circumstances. In 1992, the PAC's position was to allow Ms. Maroon to buy back the time without interest. Legal counsel recommended against addressing the issue then because of the AARP lawsuit that was happening. In answer to a question, Ms. Maroon said the AARP lawsuit had not applied to her and she did not benefit from the settlement. PAC members will review Ms. Dougall-Sides memorandum before making a decision. Ms. Dougall-Sides noted the City contributed Social Security payments during this time. It was suggested the actuarial computation consider these contributions. Ms. Dougall-Sides said if the City also makes Pension payments, it would be doubling contributions for this employee. Social Security contributions cannot be recouped and the employee has been credited with those quarters. Mr. Laursen will contact Mr. Metz to make a standard calculation for the four years four months and ask him for recommendations regarding the Social Security payments. Staff will review the information and make a recommendation, if possible. Camille Motley request Central Records Specialist Camille Motley indicated her spouse has the opportunity to participate in a buy back in Dunedin for the State municipal retirement plan. She has requested her case be reviewed so she and her spouse can coordinate their retirement plans. She had resigned in 1977 and returned to the Pension Plan in 1982. Mr. Laursen will request an actuarial computation. Buy back Time Limits According to the ordinance, employees returning after January 1, 1996, must payback appropriate funds to the Pension Plan within 2 years of their reemployment. Mr. Laursen said the PAC had not established a time limit for employees who had returned to work before December 31, 1995, to submit requests for buying back Pension time. He reminded the PAC the Legal Department's opinion determined the buy back provision was prospective and not retroactive. Mr. Laursen estimated 12 employees may seek buy backs for previous time periods. He suggested computing actuarial values, before employees submit letters of intent would be beneficial. Consensus was to limit buy backs to 60 days. Mr. Laursen will distribute a window of opportunity notice to employees indicating the PAC will consider buy backs on a case-by-case basis. Discussion ensued regarding comparisons between the current and previous Pension Plans' buy back provisions. The previous plan had a limited buy back policy even though the plan did not include that specific language. It was suggested notice of buy back opportunities be published in Reflections. It was felt a time limit for buy backs of previous service should be established based on the date staff is notified of this opportunity for consideration. Mr. Laursen suggested allowing buy backs for returns before the current Pension Plan's effective date is not appropriate considering the Legal Department's opinion regarding this issue. It was noted the PAC already indicated they will consider buy backs for five employees. It was felt fewer requests will reach the PAC if actuarial numbers are computed first. It was suggested a 30 day window of opportunity to request buy back is adequate. A deadline of July 31, 1996, or 60 days also was recommended to allow time for distributing the memorandum and slippage. It was suggested department directors be responsible for disseminating this information to their staffs. Concern was expressed employees may be on vacation and unable to respond within 30 days. Member Johnson moved to allow consideration of pension buy backs for employees who returned to City employment before January 1, 1996, and submit requests by July 3, 1996, for consideration at the July 11, 1996, meeting. The motion was duly seconded and carried unanimously. ITEM #5 - Director's Reports a) Review of medical forms and scope of exam for Plan admittance Mr. Laursen recommended reviewing the pre-employment medical examination process as the results are used for pension determination. He suggested forming a committee to review the forms and process. Ms. Dougall-Sides said Sunshine laws could possibly complied with if only one PAC member served on the committee. Mr. Laursen suggested committee members include himself, a PAC member, Legal Department staff member, Ms. Rice, a representative from the current medical provider, and other staff. He estimated several meetings would be needed to review and redesign the forms. He would prefer recommending approval of new hires into the Pension Plan based on improved forms and an updated scope of examination approved by the PAC. It was suggested one PAC member review physical forms before they are presented to the PAC. In answer to a question, Mr. Laursen said the scope of the examination is not related to age. Differences are based on the nature of the job. Examinations for Police and Fire employees and those who use respirators are more comprehensive. Member Shepler volunteered to serve on the committee to establish the process and redesign the forms, and to review new hire physicals. In answer to a question, Mr. Laursen said Police and Fire employees have physicals every one to three years. He did not know if spray technicians were required to have physicals after employment. Ms. Dougall-Sides said a fitness for duty examination can be requested of anyone in classified service. Mr. Laursen said the committee will involve Member Shepler in discussion of forms and the scope of examination. Actuarial Costs Mr. Laursen reported Coopers and Lybrand had forwarded actuarial costs for two previous buy back requests. Buy backs are more than $247,000 for Kenneth Donagan and more than $76,000 for David Krieger. He had no information on the determination process. Employee attendance at PAC meetings The status of employees who attend PAC meetings was questioned. Mr. Laursen said typically, the City Manager allows employees with pending requests to attend PAC meetings without loss of pay. It was recommended to address employee concerns at the beginning of a meeting to use less employee time. Consensus was to have employees appear at the beginning of the agenda. Next meeting Mr. Laursen reported the next meeting is scheduled for June 13, 1996. ITEM #6 - Adjournment The meeting adjourned at 11:35 a.m.