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HomeMy WebLinkAbout1995 01 16 City Commission Special Minutes SfECIAL MEETING CITY COMMISSION CITY OF WINTER SPRIN( . S JANUARY 16, 1995 The special meeting of the City Commission of the City of Winter Springs was called to order by Mayor John F. Bush at 8:04 p.m. Roll Call: Mayor John F. Bush, present Deputy Mayor John Langellotti, present City Manager John Govoruhk, present City Attorney Frank Kruppenbacher, present Commissioners: Larry Conniff, present John Ferring, present Cindy Gennell, present David McLeod, present Discussion on Wage and Hour Report: Attorney Kruppenbacher stated that at the last meeting you heard the wage and hour investigator report to you and information was handed out to you as to proposed liability. The figures that are on those sheets come from calculations made as to hours by Mr. Martin that you verified for what are estimated hours that were worked allegedly by employees from the period of April 2, 1992, forward to approximately April 94, at which time these issues were corrected. So, we are dealing with what has alleged to have been work by employees for which they did not receive pay. This is not an issue of people getting paid for doing nothing, these employees have alleged that they have worked. In the Police Department, relates to time involving their appearance in court in Seminole County, their guard mount time of when they reported 15 minutes early and there was an issue as to training time, which I negotiated out of the consideration in this matter, so that is not an issue as to further calculations. In the Parks and Recreation Department, it was reported to us that employees were actually directed not to report hours worked, promised that there would be future comp time etc. There is an allegation that somebody or persons were engaged in destroying computer records of hours worked and there were record keeping violations. The total due is $184,358.03, that would be paid to the employees that are listed on the sheet, in addition to that you would obviously have to pay the employers contribution towards social security etc. Approximately $134,000.00, of that is allocated to the Police Dept. Commissioner Ferring asked about the additional monies. Attorney Kruppenbacher said the City would have to pay what would be routinely paid as the employers contribution for paying these wages. Commissioner Ferring asked about pension and everything else. Attorney Kruppenbacher said from aDept. of Labor standpoint all you have to do is pay these wages and pay whatever the Federal Government gets, we will have to check with your pension people as to whether or not it plays any role in the pension. Special Meeting City Commission January 16, 1995 94-95-08 Page 2 Attorney Kruppenbacher asked Mr. Martin, the Finance Director, what is roughly the percentage employer contribution. Mr. Martin said the FICA tax would be 7.65%, plus the pension is another 6% and then worker's comp, which varies because the Police Dept. is different than Parks and Recreation. Commissioner Ferring said then you are talking anywhere between 15 and 20 percent additional to $184,000.00. Mr. Martin said correct. Attorney Kruppenbacher said at this time you have heard the Dept. of Labor's position regarding this issue. The records of the US Dept. of Labor as to statements furnished to them by employees are confidential by law, and remain confidential subsequent to closure to this case. Ifwe litigate and those employees are used as witnesses who gave statements than there are arguments to be made at that stage in the litigation that we have a right to those statements, to analyze them for impeachment purposes etc. But they are not, by law, open to review even when the case is closed. The Dept. of Labor has the right to pursue an employer for liquidated damages should we not resolve the issues with them. That means you go to court and if you are found to be in violation of the law and to not have a good faith defense, and a good faith defense is not "we didn't know our managers were doing it". Then the court by law automatically doubles your damages; the $184,000 is a negotiated figure, we cut out training time, we reduced the hours, the Dept. would have the right to say that they believe these violations are willful, if they determine that they are willful violations and want to pursue willful, they can go beyond the two year period and go back three years. Attorney Kruppenbacher said in addition to that, they would have the right to pursue us for their attorney's fees and costs included as well as fines which are approximately $1,000 for each record keeping violation and $1,000 for each violation regarding a failure to pay correctly. We have negotiated out the issue offines as part of their proposed settlement with us. Attorney Kruppenbacher said defenses to these issues are: 1. It is untrue, beyond that particular defense, we're not dealing with an exemption issue, we are dealing with a fundamental pay issue, that is really the issue in this case, whether it is true or not. In the Parks and Recreation Dept. the City Manager and Finance Director have concluded that there is accuracy that people were working and not reporting it. The Police Dept., is a different issue, you have some officers who are on the list, I've been advised, that worked 8-5 or 9-5 at desk jobs and wouldn't have had the report time and would have had limited if any court time. You then have the issue of officers certifying that their time records were accurate and it that a defense? If all of their time records showed 8-5, and they all testified that they came in at 7:45, I would tell you a court would rule against us. I'm advised that time records do show times when they are staying late, working overtime etc. and they are not 8-5 type time sheets. The argument can be that we don't think it is true, we think these officers were sworn to tell the truth, we think those sheets certify them to be accurate and not somebody is not telling an accurate story or what I will speculate, could have occurred based upon my experience, is that virtually dept. I've been around has always had practices of people reporting in 15 min. early and frequently relieving their other officers 15 min. Special Meeting City Commission January 16, 1995 94-95-08 Page 3 early. What happens in most depts. and may have occurred here, if you assume these officers are telling the truth, is that what you have to do today is "throw" people out of the work place, you don't get to sit around in the squad room and talk to your fellow officers, because we are paying for that when they are doing it. Attorney Kruppenbacher said if this did happen, it happened because until just recently until 1. Govoruhk took over, we have never done an annual review of our personnel policies and practices or our compensation plan. I think if this has happened, these are the kind of things that happen in that you don't keep watching them. Attorney Kruppenbacher said finally I'll tell you how do we avoid it in the future, I've reviewed with the Dept. of Labor and the City Manager will be issuing a memo when we finish this, to all employees that tells them: they are to report every minute they work, if they don't report every minute they work, they are subject to termination and if anybody ever gives them direction not to report what they work, they are to immediately report it to the Manager and they are only to work the hours that they are scheduled; so we can prevent the problem from happening again, more importantly by constantly having an annual review with our Managers of how these practices are working. At this point we have some decisions to make on what we do with the Dept. of Labor because of what they've found in these issues. Commissioner McLeod asked the City Attorney if he has represented the SherifPs Depts. on the same matter, why did he not inform the City Manager or Police Chief of the problems that they perhaps were facing by allowing people to be on the premises. Attorney Kruppenbacher stated that he advised the former City Manager of the need to do a comprehensive analysis of the personnel practices that were going on, the personnel policies that were written and the compensation plan, I probably advised that more than once a year to the former City Manager. I brought out the person who did it all for Disney and FLA Hospital who was prepared to do it for next to nothing to help educate on the issue and it was basically that the former Manager didn't want to hear about it. Commissioner McLeod said in the Fair Labor Standard Act, what is exactly the violation of what portion of the Act by it's chapter; it sounds to me that there is basically one area throughout the whole labor act standards. Also, how many people on the list knowingly do not put in over time, that due to the engagement of their profession, explain where there is four and five thousand dollars being paid to these people, and how many of the people on the list did not put in the overtime, can we reduce the list? Discussion. City Manager Govoruhk said that was brought up, why include all personnel, and the comment I got back was they have to go somewhere in the middle and include all personnel. Attorney Kruppenbacher said it was raised early in the discussions and negotiations. We have raised these issues, and we have not met with Mr. Hankins boss yet regarding any particular differences where we want to draw the line. This issue seemed to move as we went through this, so rather than Special Meeting City Commission January 16, 1995 94-95-08 Page 4 draw the line and fighting on issues, we let him show us everything. It was raised, it can continue to be raised and we are not locked into these figures. We need to talk to you before we go back to Mr. Hankins. Discussion. Commissioner McLeod asked the City Manager for a dollar figure on the list that may be relative to the amount of people that may really not be entitled to it due to the nature of their business. City Manager Govoruhk said giving you a rough estimate off the top rougWy give or take $40-45 thousand dollars. Commissioner Ferring said there is no way I could make a decision by the 21st. on this situation, there are too many questions that are raised and asked the City Attorney what is the case law as far as litigation is concerned when it comes to this type of case. Attorney Kruppenbacher said it is bad for the employer. Discussion. Attorney Kruppenbacher said that Mr. Martin, he believes, has the back up data from the Department that he could provide each Commissioner for each employee covered by this document, that would show what each employee reportedly worked within that two years. Mr. Martin said as far as the Police Dept. is concerned, each employee was paid 4 hours per week from April 92 to April 94. Ifit exceeded the 86 hours worked in the two week pay period, it then got into over time. We excluded holiday and vacation pay and sick time to get down to hours worked. Commissioner Ferring asked Mr. Martin how did he come up with formula, there seems to be various different figures for different officers. Mr. Martin said they didn't all start at the same time and different hourly rates. Commissioner Ferring asked the Police Chief if there was a policy requiring Police Officers to come in early and work. Chief Sexton stated even at the present time, we require them to come in at 15 minutes to the hour; the go to work immediately and after they have worked their 8 hours if all their assigned calls and reports are complete, at 15 minutes to the hour they can leave. Discussion. Commissioner Gennell asked Mr. Martin for the list which separates the Police and Parks and Recreation Depts. Mr. Martin said he didn't have the list and would get it to the Commission. Commissioner Gennell said why can't we use a time clock in the Police Dept. Attorney Kruppenbacher said the issue isn't time clock or the sheets. If they punched the time clock and went back in and sat in the dept., you buy this liability, it is a management, you manage them and you get them out. Manager Govoruhk said we have put time clocks in all depts. right now except City Hall and the Police Dept. Attorney Kruppenbacher explained where the 4 hours came from, 2 1/2 hours per week for the Special Meeting City Commission January 16, 1995 94-95-08 Page 5 five shifts, 15 minutes each shift, the guard mount time. Then another hour and a half average per week for court time per employee. Those four hours were then taken by Mr. Martin for that two year cycle and each work period he figured where those four hours fell, whether they were minimum wage hours or over time hours and then calculated the final figures from that. Commissioner Langellotti asked if these employees had sworn testimony, there was no sworn testimony, so that all these people (64) whatever they said to this gentleman was all the truth. Attorney Kruppenbacher said he has signed statements from employees that are taken that say I hereby verify that they are true etc. Commissioner Langellotti asked if the City has a defense against that. Attorney Kruppenbacher said with the Parks and Recreation it is suffice to say there is no defense in that Dept.; in the Police Dept. we can't show you a pattern and practice during this two year cycle of our employees were expected and did in fact leave; those officers will say that they stayed and they worked. Discussion. Commissioner Conniff said we have heard our current Police Chief, we know we have our former Police Chief here, we have heard the words from our City Attorney, we are not going to be able to beat this thing. It is non defendable, all they have to do is ask our current City Attorney did you ever bring to our past City Manager's attention the fact that we have these practices, he has to say yes, we go down the tubes. As far as some officers the 40-45 thousand dollars, we are looking at a window frame of April 1992 to April 1994 during this time some officers may have worked on a special detail or maybe this is before they went into the detective bureau or something like that, we are not going to win that one either. Let's get realistic we are looking at a 200 and 250 thousand dollar thing, and it could go to 500 thousand dollars, you heard the Attorney tell you that that's what's happening, what are we waiting for, if we go to court and they bring up the fact that we have obvious defects within the Parks and Recreation, we don't deny that, we have probable problems with the Police Dept. because it was past practice, not pointing any fingers, we are not going to beat that. I don't know why we just don't take a vote, pay this bill and let's move on with some City business. Commissioner McLeod said one thing you want to remember being an employer is a lot like being a babysitter, employees on their way to work stop and drop their children off and pay the babysitter to do that, they come on to work and we as employers pay them to be here and then you have to watch every move they make. He also asked Mr. Martin, if all the employees on the list get 4 hours a week in the Police Dept. Mr. Martin stated yes that is what it was based on. Commissioner McLeod said that brings up the problems because I think our defense here, Frank, from my standpoint I have to somewhat agree with Commissioner Conniff, except for the fact of those employees that we absolutely know and they probably admittedly attest to this and have been told that they need to do other but, we know that they do not work overtime, their job does not entail where they need to work overtime, then I think that you and the City Manager need to try to get with those people and see that that can't be reduced off this list, because I think that is a real injustice to the individual and to the taxpayers '.If the City. If this is able to be reduced down by 30-40 thousand dollars then I think that's the only avenue we have at this time and I think it's the names of those individuals that do not put in the overtime that needs to be addressed. Other than that I have to agree with Frank, unless you can hand them a document and you can bring a body along with that document that says this man did not work I will testify to April X, at 5:01 was out of this building, and April X, 4:49 was not here, he was not hear at 5:15, you will lose, so I think the only thing we have here that we can deal with as issues is to go ahead and remove off the list and negotiate, really negotiate off this list those people that are not entitled to it and if the other people are entitled then that should be dispersed that way. Attorney Kruppenbacher asked the Commission for the authority to tell them that we will make payment on the Parks and Recreation Dept., and then authority for John and I this week to go back and further negotiate on the Police issue and report back to you Monday night on that issue. Commissioner Ferring said we just got through with the salary study and went through a great deal of trouble to try and reward the employees of this City, there has to be caveats put in to whatever we do, there has to be a recoup of this money at some given point and when the appropriations for budgets come in, general raises. Attorney Kruppenbacher said we can't retaliate; the issues that you are raising are issues that we are telling we want to continue to raise and negotiate with, all I'm asking for and your City Manager wants, is the authority to negotiate this week settle out the Parks and Recreation Dept. issue, deal with negotiations on the Police issues, bring that back to you at your next Commission Mtg. then I think you have to deal with the issue the allegation that somebody destroyed records. Commissioner Ferring said the Parks and Recreation is not escaping this particular chart either, I'm sure they got employees on there that weren't involved in any of that stuff that are getting remunerated. Attorney Kruppenbacher said we will have everyone of them that say they worked and we have absolutely no one to say they didn't work, other than I don't believe they worked. I can't stand in the Federal Court and prevail, because they are going to look and say you are asking us to presume they are all lying, unless you give them something tangible, they are not going to presume it. Discussion. Commissioner Conniff said he thinks that our City Attorney and City Manager are asking for some direction, and moved to give them the power to go ahead and settle the Parks and Recreation Dept. because in that time frame we did what they say we did, settle that and we can negotiate the Police Dept., for whatever we can get out of that; we have a time frame of being in there by the 21 st in order to show good faith bargaining otherwise we are going to put ourselves in jeopardy of getting into penalties and make a motion that we go ahead and empower our City Manager and City Attorney to go ahead and settle parks and rec. and move on with the Police. Seconded by Commissioner McLeod. Discussion. Commissioner McLeod said again the Senior Center Director's tap is $5,600, that seems to be an awful lot of overtime calculated into that, is that another one that was thrown in. Mr. Martin said we were instructed to compute her at 5 hours per week, that is what Mr. Hankins said and was agreed to. Manager Govoruhk said on Thursday's she use to come back at night and was not paid for that time every week, the other hour was when she worked through lunches. Special Meeting City Commission January 16, 1995 94-95-08 Page 7 Commissioner McLeod said he would like to see us settle the Parks and Recreation, I think that is where the big issue is and I would only turn to you and say let's resolve the Parks and Recreation and let the City Manager and City Attorney get that out of the loop not to be able to come back and readdress it. But then I think we need to then go at resolving the Police Dept. by taking a look at the issues of the people, and the fact that they were under Union contract and they never brought any problems to their own union to bring back here as part of their negations which I think would give you a little stronger grounds to negotiate on. Commissioner Gennell said that she thinks that the time issue is not really and issue, Frank said he can get a waiver on it and I don't see that it would add that much to it, there has been some serious allegations out there as a result of when this stuff was found. Somebody erasing records and everything and if we do like Mr. McLeod wants and just say we settle it and never come back to it again, that's exactly what happens here, it goes under the rug. Attorney Kruppenbacher said he doesn't believe that is what Commissioner McLeod said, I said there is two issues here, first deal with the liability that we know is out there and it is going to go a lot further in our negations when I say we are paying off this and it's out of the way, we need to negotiate; I also then said I did it was imperative that you as a group come back and deal with the serious allegation that was made that somebody destroyed a public record and that the Manager had a recommendation regarding that issue. Commissioner Gennell said not only that, there is allegations that this individual, who is now gone, was instructed to do, who had the over site for that department, another words are we just going to sweep this thing under the rug and move on and somebody will handle it some day, I would just rather keep everything on the table and deal with it. Discussion. Attorney Kruppenbacher said you are mixing in the mix, the liability of the City with who can we blame within the City, that is not the way to approach it, your issues are valid issues and need to be addressed, but don't tie up the department of labor because they will say they don't care who you blame, we want these employees to be made whole. Discussion. Commissioner McLeod said he does not have any intentions to drop the fact that an employee of this City, especially if that employee is still here, I do want to have an investigation done by and a report from the City Manager as to who dropped these records, the City Manager owes that to this Commission, but I do not want us to cross lines on issues, that is one issue that stands by itself, the issue of what I think we need to do is reduce our exposure and liability by getting rid of the dollars to spend toward Parks and Recreation so that can not be thrown back in by the Labor Dept. Commissioner Conniff said he agrees with Commissioner McLeod, we are looking at the time frame between April 92 and April 94 we did it, let's get rid of it, I definitely want to find out how this happened if records are missing, how come, who did it whatever; the thing is we have to move on we are mandated for the 21 st to do some good faith efforts, let's do that. Commissioner Gennell asked if we settle the Parks and Recreation at this point, they cannot bring Special Meeting City Commission January 16, 1995 94-95-08 Page 8 it into court at any time? Attorney Kruppenbacher said that is what he is asking, he is asking for the authority to go back to them and propose that they agree to accept payment in the Parks and Recreation and put it out of the way and that is gone and focus and deal with the Police, they may say no, but I'd rather go back and approach them that way because I think we'll facilitate getting further in negotiations with the Police Dept. and I think the issues of responsibility due need to be address but they don't really have any thing to do with the Dept. of Labor. Discussion. Attorney Kruppenbacher said what he understands the motion would do if you passed it, is that the City Manager and I have the authority to tell the Dept. of Labor we are authorized to settle out with Parks and Recreation if they agree to do that and we want to negotiate with them this week to bring back at your Commission meeting Monday night resolution of the police dept. issues. If they don't agree to what I just outlined then we don't settle anything until we come back to you Monday night. Vote on the motion: Commissioner Conniff: aye; Commissioner Ferring: nay; Commissioner Gennelt: aye; Commissioner McLeod: aye; Commissioner Langellotti: nay. Motion passes. City Manager Govoruhk said it has been my policy as police chief and it still is, and that is to go out to another department that has nothing to do with the City and/or the State Attorney to do an investigation, I believe this will be the best route to go, because we did our investigation, we need an outsider to come in and find out what happened to that issue. Discussion. Commissioner McLeod said he thinks a lot of people have an understanding who might have pushed that button and where it went, are you (Manager) telling me that you have no recollection of that, you your self do not know, and you are going to go outside the City and bring someone in to tell us what we already know. Attorney Kruppenbacher said the Dept. of Labor has alluded at the last meeting, that somebody told them that an employee of our City knowingly destroyed these records, I've asked who, and they said they would not tell me, for the record I do not know who did it. Commissioner McLeod said he just wants to make sure we are not spending money for something we already know and we just may not want to say who it is. I would say if the City Manager knows it is his duty to tell this Commission if he knows. Manager Govoruhk said he does not know as of now if during the investigation if it was ever brought up, and Mr. Hankins has not brought this up. Discussion. Attorney Kruppenbacher said when I call Mr. Hankins tomorrow the first thing I'll ask is again will he tell me the name and who reported it, and I can tell you right now if there is evidence if somebody did it and evidence it was done on purpose then I will tell you right now legally it is incumbent on the City to unload on that person. Commissioner McLeod said whom ever that may be, I think that person no longer needs to be employed by the City. Manager Govoruhk said during the investigation at the Park I asked different people at the Parks, I remember when two individuals said some of it may be in official records and files and they told me there was official records and files but when we looked at their . . Special Meeting City Commission January 16, 1995 94-95-08 Page 9 records and files, it was what I already had prior to it being signed off. I even asked about the computer, to my knowledge I can't say right now. Commissioner McLeod asked how many people has access to the computer that would possibly able to delete the information. Mr. Martin said about six employees. Mayor Bush said he thinks the City Manager is taking the appropriate step to try to determine the concerns that you are raising and going out to an outside investigator is a wise move. Manager Govoruhk said whenever we use another Dept. they don't charge, and State Attorney doesn't charge either. Mayor Bush mentioned to the Commission a date needs to be set for the meeting regarding the review of the Charter and Sunshine Law. Discussion. It was determined to have the meeting on January 30, 1995 at 7:00 p.m. The meeting adjourned at 9:25 p.m. Respectfully Submitted, ~~~~ Margo M,Hopkins, City Clerk :;?~