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08/28/2003PENSION ADVISORY COMMITTEE MEETING CITY OF CLEARWATER August 28, 2003 Present: Whitney Gray Chair/Commissioner John Lee Vice-Chair Hoyt P. Hamilton Committee Member/Commissioner Frank Hibbard Committee Member/Commissioner Nathan Hightower Committee Member – departed 11:18 to 11:31 a.m. Tom Jensen Committee Member John Schmalzbauer Committee Member Also Present: Robert D. Klausner Pension Advisory Committee Attorney Joe Roseto Human Resources Director Leslie Dougall-Sides Assistant City Attorney – departed 11:24 a.m. Brenda Moses 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 of July 10, 2003 Member Hightower moved to approve the minutes of the regular Pension Advisory Committee meeting of July 10, 2003, 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 Review and Action on Employee Requests for Years of Service Pensions Raymond Taylor, Police Donald Flynn, Fire Fred Maier, Fire James M. Smith, Public Services Thomas Mulder, Police Member Jensen moved to approve Years of Service Pension for Raymond Taylor, Donald Flynn, Fred Maier, James M. Smith, and Thomas Mulder. The motion was duly seconded and carried unanimously. b. Review and Action on Employee Requests To Vest Pensions Cynthia Bender, Human Resources Larry M. Shefts, Engineering Member Lee moved to approve a request to vest pensions for Cynthia Bender and Larry M. Shefts. The motion was duly seconded and carried unanimously. c. Approval of New Hires as Plan Members As of August 14, 2003, the City had 1770.96 of 1844.9 budgeted positions. Member Hibbard moved to accept the following employees into membership in the Pension Plan: Pension Elig. Name, Job Class, & Dept./Div. Hire Date Date Robert McKnight, Solid Waste Worker/Solid Waste/Gen Svcs 6/16/03 6/16/03 Richard McGinley, Gas Tech I/Gas 6/23/03 6/23/03 Russell Becker, Water Plant Operator C/Public Utilities 6/30/03 6/30/03 Rachel DeBella, Staff Assistant/Fire 6/30/03 6/30/03 Ian Prior, TV Production Specialist/Public Communications 6/30/03 6/30/03 Gabriel Parra, Code Enforcement Inspector/Dev Svcs 7/14/03 7/14/03 John Giordano, Parking Tech/Engineering 7/14/03 7/14/03 James Armstrong, Parks Service Tech I/Parks & Recreation 6/30/03 6/30/03 Louis Beem, Solid Waste Worker/Solid Waste 7/14/03 7/14/03 Bonnie Bagry, Police Communications Operator/Police 7/28/03 7/28/03 Ryan Robinson, Dev Review Tech I/Dev Svcs 7/28/03 7/28/03 Roy Dacke, Survey Assistant/Engineering 7/28/03 7/28/03 Philip Harris, Neighborhood Services Specialist/Dev Svcs 7/28/03 7/28/03 Elizabeth McCluskey, Police Communications Operator/Police 7/28/03 7/28/03 Anthony Martin, Police Recruit/Police 5/19/03 5/19/03 Willie Watts, Parks Service Tech I/Parks & Recreation 8/11/03 8/11/03 Jemarall Richards, Solid Waste Worker/Solid Waste 8/11/03 8/11/03 David Blow, Solid Waste Worker/Solid Waste 8/11/03 8/11/03 Robert Kalch, Engineer I/Engineering 8/11/03 8/11/03 The motion was duly seconded and carried unanimously. 5. Pending/New Business a. Gwen Legters—Hearing for Non-job-connected Disability PAC (Pension Advisory Committee) Attorney Robert Klausner said Gwen Legters has applied for a non-job-connected disability with the City. The burden of proof regarding all the applicable elements is on the employee. He reviewed the criteria for a disability application and the process for hearing the case. Member Hightower moved to accept the medical evidence entered into the record. The motion was duly seconded and carried unanimously. Assistant City Attorney Leslie Dougall-Sides said the City feels the medical evidence is compelling in this case and is not contesting the non-job-connected disability request by Ms. Legters. Member Schmalzbauer moved to grant the disability request based on the medical evidence before the PAC, that the applicant is disabled due to sickness or injury, that the disability is likely to be continuous and permanent, and that Ms. Legters is unable to perform any useful, meaningful, and necessary work for the City of Clearwater. The motion was duly seconded and carried unanimously. b. Elizabeth Alvarez—Hearing for Job-connected Disability Mr. Klausner said a supplemental report from the IME (Independent Medical Examination) physician Eric Michael Kaplan indicated that he had changed his opinion on the question of causation regarding Police Officer Elizabeth Alvarez’s condition. Mr. Klausner reviewed the criteria for a disability application and the process for hearing the case. Ms. Alvarez has applied for a job-connected disability. In response to a question, Ms. Dougall-Sides said the City is contesting Ms. Alvarez’s job-connected disability claim. Mr. Klausner said the PAC’s decision would be made after considering the medical evidence in the record including differing medical opinions in this case and applying the criteria for a job-connected disability claim. The PAC has the ability to choose which of the medical opinions are most applicable and believable in this case. Mr. Klausner said the applicant must prove all three of the elements required for a disability claim. Elizabeth Alvarez, applicant, said she is proud to have been a Police Officer for the City of Clearwater for 14 years. She described some incidents she witnessed over the past four years. She said she has utilized the EAP (Employee Assistance Program) offered by the City. She described her symptoms and associated medical problems. She has had numerous visits with medical professionals and currently is on various medications. She reviewed the disorders with which she has been diagnosed. She said four individuals have stated that she is permanently disabled and her condition is work-related. Ms. Dougall-Sides said Dr. Kaplan, the IME physician who also is a Board Certified psychiatrist, found Ms. Alvarez currently to be disabled but opined that the disability was not permanent and that she could return to work within six to twelve months with various types of therapy. The City’s position is that the permanency requirement of the disability application has not been met. Ms. Dougall-Sides said that Dr. Kaplan also stated the earlier exposure to trauma was not described as having led to the current problems. Dr. Kaplan stated the major depression, PTSD (Post-Traumatic Stress Disorder), and panic disorder appear to have started when Ms. Alvarez saw news coverage of a Tampa police officer, who was killed in the line of duty. Dr. Patel, Ms. Alvarez’s treating physician, also found that the symptoms arose after the news coverage regarding the Tampa police officer. Dr. Kaplan opined that the permanency and job-connected aspects of the disability request have not been met. Ms. Dougall-Sides said the City has the ability to reassign police officers to light duty positions until such time the employee’s disability is determined permanent or resolved. Human Resources Director Joe Roseto said police officers are expected to have the ability to perform the full range of duties of a police officer. While a police officer may be assigned to desk duties or other light duties, it is with the expectation that it is temporary until such time the officer can return to the job full time. Member Schmalzbauer moved to accept the report of Dr. Kaplan June 25, 2003, and his supplemental letter dated August 13, 2003, into the record. The motion was duly seconded and carried unanimously. Bill Laubach, applicant’s representative, requested that the entire record be accepted by the PAC. Member Jensen moved to accept the entire record received by the PAC into the record. The motion was duly seconded and carried unanimously. Mr. Laubach said in order for evidence to be presented outside of the existing record, that the applicant and/or applicant’s representative must be given a 10-day advance notice of the witnesses to give testimony, which he did not receive. He requested the opportunity to talk to any witnesses prior to their testimony. Mr. Klausner said the PAC’s rules provide that a copy of all documents be provided, and that a list of the witnesses to be called by the applicant be provided to the PAC at least 10 days prior to the hearing. There is no requirement on the City’s part to reciprocate. Mr. Klausner said the rules applicable in these proceedings are intended to provide for exposition of the truth and provide due process for the applicant. Ms. Dougall-Sides said the only testimony anticipated on behalf of the City is to ask the Human Resources Director whether there are any positions for Ms. Alvarez that would involve useful and meaningful work, and possible testimony from Deputy Police Chief Williams in response to questions by the PAC. Mr. Laubach withdrew his objection with the assurance from Ms. Dougall-Sides that was the extent of the testimony anticipated. In response to a question, Mr. Klausner said even if this case were continued, the fact remains that the rules do not require the City to inform the applicant of persons who might testify. He said the rules that apply to civil proceedings do not apply to administrative proceedings. It was questioned if the PAC needed time to review Dr. Kaplan’s supplemental report. Mr. Laubach said he did not believe he would depose Dr. Kaplan. He said he would present evidence that would contradict Dr. Kaplan’s opinion. He requested the PAC hear Ms. Alvarez’s case today. Ms. Dougall-Sides said there have been no requests to take depositions from any of the physicians, including from Dr. Kaplan. In response to a question from Mr. Klausner, Mr. Laubach said he is relying on the City regarding their statement that no other witnesses would be called, and he is satisfied with the procedure that is in place and that the record that has been admitted offers his client the due process required; therefore he had no objection to proceeding with the hearing. Mr. Laubach said Ms. Alvarez originally was referred to Mr. William Law on October 26, 2002, through the City’s EAP. Mr. Law has seen her on a weekly basis or more frequently. Mr. Laubach reviewed Mr. Law’s statements regarding Ms. Alvarez’s condition. Mr. Laubach said that Ms. Alvarez has told Mr. Law of many job-related incidents she experienced before and after the Tampa police officer’s demise. Mr. Law stated that the incident involving the Tampa police officer was a precipitating event, which required Ms. Alvarez to seek treatment. Mr. Laubach said that Mr. Law’s opinion contradicts Dr. Kaplan’s second opinion. Mr. Laubach reviewed Dr. Eric Rosen’s statements regarding Ms. Alvarez’s condition. He said it would be impossible for Ms. Alvarez to return to her job as a police officer as re-traumatization could occur. He also opined that the death of the Tampa police officer was a secondary traumatization. Mr. Laubach said Dr. Shodhan Patel examined Ms. Alvarez on May 5, 2003. He reviewed statements made by Dr. Patel regarding Ms. Alvarez’s condition. Mr. Laubach said that Dr. Patel has stated that Ms. Alvarez is likely disabled from returning to any kind of work in her current career in view of her current condition and potential outcomes. Mr. Laubach reviewed the medications being taken by Ms. Alvarez. Mr. Laubach said Dr. Eric Michael Kaplan saw Ms. Alvarez on June 5, 2003. He reviewed Dr. Kaplan’s statements regarding Ms. Alvarez’s condition. Mr. Laubach said according to Dr. Kaplan’s first report, his findings are the same as the other medical professionals who diagnosed Ms. Alvarez’s condition and have stated that her condition is job-related. Dr. Kaplan also found no evidence that Ms. Alvarez’s condition was influenced by non-occupational activities. He also stated that all the findings were within a reasonable degree of medical certainty. In a subsequent letter dated August 13, 2003, Dr. Kaplan stated that after re-examining his report, he changed his diagnosis. Mr. Laubach said Ms. Alvarez answered questions presented to her and was not questioned about the two most recent traumatic events she had experienced. The record reflects that highly trained professionals detected her symptoms after she sought psychiatric care. There are no statements in the record that the trauma experienced by Ms. Alvarez did not exist prior to the Tampa police officer’s death. Mr. Laubach said based on the evidence presented, Ms. Alvarez has satisfied the criteria required for the job-connected disability request. Mr. Laubach said all the doctors that Ms. Alvarez has seen have stated that she cannot perform the full range of duties required of a Clearwater Police Officer. In response to a question, Mr. Klausner said a telephone call was made to Dr. Kaplan’s office after reading the doctors’ reports, as his firm had questions regarding how PTSD occurs. He said he felt it appropriate to make the call in the event he was asked to comment on PTSD at a later time. Ms. Dougall-Sides said it is unusual for the City to request a third opinion beyond the treating and IME physicians’ opinions. Ms. Dougall-Sides said Dr. Kaplan found that currently, Ms. Alvarez is totally disabled from performing the duties of a police officer as described in her job description as a result of her psychological/psychiatric condition, however he found her condition is not permanent. He further stated that if motivated to return to work as a police officer and with appropriate treatment, Ms. Alvarez should be able to return to work within six to 12 months. He suggested she serve on light duty positions until she could return to full time work. In Dr. Kaplan’s second report, he states his diagnosis in his first report was incorrect. Ms. Dougall-Sides said a doctor has the ability to change his opinion if he re-examines the report and feels a new opinions is necessary. Dr. Kaplan further stated Ms. Alvarez’s symptoms began with the Tampa police officer’s death and increased over time. Ms. Dougall-Sides suggested that physicians generally do not feed information to the patient, but use techniques relying on what he/she is told by the patient. In response to questions from Ms. Dougall-Sides, Mr. Roseto said as of today, there is no meaningful and useful work available for Ms. Alvarez as a police officer for the City. Light duty positions for police officers generally are offered on a temporary basis with the expectation that a police officer could return to a permanent position and perform their full range of duties. Mr. Roseto said a leave of absence could be extended by the City Manager beyond the normal six-month period. In response to questions from Mr. Laubach, Mr. Roseto said based on the medical evidence, it appears today that Ms. Alvarez cannot perform the full range of duties of a police officer. Mr. Roseto said this case involves a “return to work” situation of a current employee and the criteria for hiring a new employee does not apply in this case. He said the PAC’s rules provide for disability recipients to be re-examined annually. There is no timeframe or limitation for applying for a disability pension. It was questioned if the PAC’s attorney should question the medical results presented by a physician. Mr. Klausner said his firm made a telephone call to Dr. Kaplan’s office to ask how the doctor reached his opinion regarding PTSD, but did not ask him to generate another opinion regarding the case. It was remarked that the PAC attorney’s role is to ensure the PAC is following the correct legal process. The City’s Legal Department normally would handle any concerns regarding physicians’ reports. Mr. Roseto said the issue is not the diagnosis, but the precipitating event and if it was caused by a job-related or non-job-related incident or incidents. There is a significant difference in the benefits provided for job-connected and non-job-connected benefits. Mr. Roseto said staff felt the problem that precipitated Ms. Alvarez’s condition was not a direct result of her duty as a Clearwater police officer. Ms. Dougall-Sides said for future reference, the previous PAC attorney firm had scheduled depositions from physicians in order to clarify their reports. It was remarked that police officers carry a firearm both on and off duty. Mr. Laubach said Ms. Alvarez was ordered to surrender her firearm. In response to questions, Mr. Laubach said Dr. Kaplan’s second opinion changed on the causation aspect but did not change as it related to the permanency aspect of Ms. Alvarez’s condition. Mr. Klausner said if the PAC finds Ms. Alvarez is not eligible for a job-connected disability, it could approve a non-job-connected disability. The applicant would have the ability to appeal the PAC’s decision regarding the job-connected disability request. In response to a question, Ms. Dougall-Sides said Dr. Kaplan felt that Ms. Alvarez could be placed on light duty positions. Assuming her condition improves and if her behavior and performance is appropriate, she could be moved back to police work without restrictions, including the full range of duties for a police officer. Discussion ensued regarding Ms. Alvarez’s ability to perform the full range of duties for a police officer, the issue of permanency, and if her condition is job-related. In response to a question, Mr. Roseto said a police officer with a sprained ankle would not be required to surrender his/her firearm. He said Ms. Alvarez currently is in an unpaid leave status. In response to a question, Ms. Alvarez said the last time she was inside the police station was approximately two months ago. She has not been in the MSB (Municipal Services Building) recently. Ms. Alvarez said Mr. Law’s statement attached to the disability claim states that after she returned to the police station, she was found to have extreme anxiety bordering on a panic attack. Ms. Alvarez said the two trauma incidents she experienced occurred after the incident involving the Tampa police officer. It was remarked that in 1996, Ms. Alvarez experienced mild depression and worked as a police officer while obtaining treatment. In response to a question, Mr. Klausner said that previous condition does not fall under the exclusionary factors for pre-existing conditions. In response to a question, Ms. Alvarez said she agrees with Dr. Kaplan that she has not reached MMI (maximum medical improvement). She said it was explained to her in therapy sessions that the Tampa police officer’s incident triggered her condition. Ms. Alvarez said she witnessed a lot of tragedy but handled each situation professionally. She said the stress and pressure that police officers experience are cumulative. Ms. Dougall-Sides urged the PAC to carefully consider Dr. Kaplan’s opinion that Ms. Alvarez has not met the permanency or the job-connected criteria of the disability request, as well as the other treating physicians’ opinions. Ms. Dougall-Sides said the record reflects that the two traumatic incidents that Ms. Alvarez referred to occurred over a time period prior to the incident involving the Tampa police officer. The City would like the opportunity to treat Ms. Alvarez for her current condition. If it is determined that Ms. Alvarez cannot return to work permanently, she could come back before the PAC. Ms. Dougall-Sides said that as the City has no short-term disability policy, police officers could experience an unpaid leave of absence status. It was remarked that discussion regarding short-term disability options and a wellness program in the City is needed. It was remarked that although it is not customary for the PAC attorney to phone a physician to clarify a report, that Mr. Klausner’s action was appropriate. It was requested that all requests regarding disability claims be put in writing in the future. Concern was expressed about Dr. Kaplan’s report regarding the definitiveness of the permanency aspect in this case. It was remarked that Ms. Alvarez had ample opportunity to discuss any and all traumas she experienced with Dr. Kaplan including the two traumatic experiences she referenced in this case. Concern was expressed whether the cause of Ms. Alvarez’s condition is job or non-job-related. It was remarked that individuals in police-related fields have various support systems and react differently over a period of time to their experiences. Member Hibbard moved to grant a non-job-connected disability for Elizabeth Alvarez. The motion was duly seconded and upon the vote being taken, Members Hibbard, Hamilton, Hightower, and Jensen, and Chair Gray voted “aye”; Members Schmalzbauer and Lee voted “nay”. Motion carried. It was requested that information provided to the PAC include a table of contents, page numbers on all documents, and that divided sections include tabs rather than colored pages in order to more readily locate individual reports, etc. Mr. Klausner said he would provide the PAC with a booklet explaining the ordinances and procedures that govern the PAC. He said he would develop a form or cover sheet be developed for the IME with a specific set of questions to be answered, as well as a form or list of the criteria to be considered for job-connected and non-job-connected disability applications. Mr. Roseto suggested as there are no disability cases scheduled at this time, that the September 11, 2003, meeting be cancelled. Consensus was to cancel the September 11, 2003, meeting. The next regularly scheduled meeting is at 9:00 a.m. on October 9, 2003. It was requested that due to the confidentiality of the information provided in packets to the PAC, that members return all packets to staff at the end of each meeting so they can be destroyed. c. Approve Charles Hyman & Co. Contract As directed by Trustees at the June 16, 2003, Trustees meeting, staff has negotiated a contract with Charles D. Hyman and Company for pension plan-consulting services. The contract provides for pension plan consulting services (i.e. strategic and tactical asset mix, diversification guidance, economic and market analysis) to the Pension Plan at an annual cost of $15,000, paid quarterly. Member Lee moved to recommend approval of the contract with the firm of Charles D. Hyman & Company for consulting services with an annual cost of $15,000. The motion was duly seconded and carried unanimously. d. Approve Expenditures for FY 2003-04 The Employees’ Pension plan does not have a legal requirement to have a budget. The Trustees must approve all expenditures. The following are routine expenditures that staff is requesting approval for the sake of efficiency. These expenditures involve routine and small dollar amounts. Medical Bills is the medical services that the Pension Advisory Committee authorizes. Travel is for two trips. The first is for attendance for two people at a training seminar and a due diligence visit. Second is for training for two people with our new custodian, Northern Trust. Printing and Binding is for the statutorily required annual information distribution to the members of the pension plan. Training is for mandatory training required by state statute. Money Manager, Safekeeping Service, and Pension Administrator fees are all set by contracts approved by the Trustees and are not included in this administrative budget. Reimbursement to the General Fund and Self Insurance Fund is for the cost of oversight of the plan and is recognized as revenue to the General Fund and Self Insurance Fund. Medical Bills $6,000 Physicals $35,000 Travel Expenses $4,500 Training $2,500 Printing $750 Misc. $500 Reimbursement to General Fund $79,000 Reimbursement to the Self Insurance Fund $23,000 In response to a question, Cash & Investments Manager Steve Moskun said there are costs associated with printing and mailing pension checks. Finance Director Margie Simmons said there also are costs associated with staff’s time. The difference between the Reimbursement to General Fund and Reimbursement to the Self Insurance Fund also includes time spent by staff on the Pension Plan. Member Hibbard moved to recommend approval of the recommended administrative expenditures for fiscal year 2003/04 totaling $151,250 for the City of Clearwater Employee’s Pension Plan. The motion was duly seconded and carried unanimously. 6. Director’s Reports Mr. Roseto said the City has been discussing short-term disability options for employees in the Pension Plan during union negotiations with all bargaining units. Mr. Klausner introduced one of his colleagues, Douglas McKiege of Bernstein, Litowitz, Berger & Grossmann LLP in New York, who provides services on behalf of retirement systems to recover funds that were lost due to investment fraud issues. In response to a question, Mr. McKiege said his firm is only paid if it brings forth a litigation. He receives a percentage of recovery of between 5% - 20%, depending upon the work involved in the litigation. Mr. Klausner said the firm charges approximately half the costs of those charged by personal injury attorneys. 7. Committee Members to be Heard Member Jensen reminded everyone to file their financial disclosure forms. In response to a question from Member Lee, Mr. Roseto said he would update Member Lee after the meeting regarding the status of a wellness program and the recommendations from the Benefits Committee. 8. Adjournment The meeting adjourned at 11:39 a.m.