TUESDAY MAY 1, 2001 7:00 P.M. COMMUNITY CENTER
*********************************************************************************************************************** CALL TO ORDER: MAYOR WILLE PLEDGE OF ALLEGIANCE: MAYOR WILLE I. DISCUSSION AND POSSIBLE ACTION REGARDING AMENDMENTS TO TOWN'S POLICIES AND ADMINISTRATIVE PROCEDURES MANUAL: 1. CHAPTER 3 "STANDARDS OF CONDUCT" 2. CHAPTER 4 "GENERAL RULES AND REGULATIONS" 3. CHAPTER 20 "GRIEVANCE/COMPLAINT PROCEDURE" II. DISCUSSION AND POSSIBLE ACTION REGARDING ADVANCEMENT OF PAY DATE III. DISCUSSION OF AN AMENDMENT TO THE TOWN?S POLICIES AND ADMINISTRATIVE PROCEDURES MANUAL 1. CHAPTER 9 "WAGE AND SALARY PLAN" VII. ADJOURNMENT PURSUANT TO SECTION 286.0105, FLORIDA STATUTES, THE TOWN HEREBY ADVISES THE PUBLIC THAT: If a person decides to appeal any decision made by the Town Commission with respect to any matter considered at its meeting, he will need a record of the proceedings and that for such purpose, affected persons may need to insure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the Town for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. |
MINUTES TOWN COMMISSION - REGULAR MEETING , 2001 A special meeting of the Town Commission of the Town of Melbourne Beach, Florida was called to order by Mayor Wille at 5:35 p.m. on Tuesday, May 1, 2001 in the Community Center. Mayor Wille also led the Pledge of Allegiance to the Flag. Present: Mayor Wille Vice Mayor Remark Commissioner Smith Commissioner Stacey Commissioner Stark Others Present: Town Attorney Gougelman Town Labor Law Attorney Fawsett Town Manager Ciummo Police Chie Walters Town Clerk Masny Mayor Wille requested that Agenda Item II. be discussed first. There were no objections from the Town Commission. II. DISCUSSION AND POSSIBLE ACTION REGARDING ADVANCEMENT OF PAY DATE Town Manager Ciummo stated that this item was discussed at the last meeting and the potential for payroll errors exist because of all of the variables involved in preparing payroll and because the turnaround time for the payroll is very short. Town Manager Ciummo stated that she did a survey of other cities and found that all of them withhold a week's pay. Town Manager Ciummo requested that the Town Commission review her recommendation of withholding four (4) hour's pay over the next ten (10) pay periods until forty (40) hours are accumulated and move the pay day from Thursday to Friday. Labor Law Attorney Fawsett explained that if the Town defers the pay date and starts paying in arrears, all it is doing is deferring payment for a few days, which would not be acceptable to all employees. Attorney Fawsett advised that it is not illegal to move the pay date so as to change from your present system to a type envisioned. Attorney Fawsett advised that it would not be unheard of for an employer to pay a one-time bonus to make up these days. Mayor Wille stated that there will be an impact on the employees in the delay of the next paycheck, as the check due on Thursday would not be available until the next Friday, is this correct? Town Manager Ciummo stated that this would occur with her proposal. Mayor Wille stated that he feels strongly that payment in advance is a poor policy and it was not created by the employees and this process should not be punitive. Mayor Wille stated that he would not see it inappropriate to institute this policy by providing a bonus to the staff, not the department heads, of one (1) week's time to allow a shift of this transfer into the new policy. Mayor Wille stated that he believes staff is deserving of this because they work hard for the Town. Mayor Wille stated that the department heads could utilize the proposal that the Town Manager has and use compensatory time so that they do not see an impact in pay. Commissioner Smith asked why not include paying the department heads too because they did not create the problem either? Commissioner Smith stated that the Town should institute the policy for new employees and advise them when they are hired that the Town will be withholding a week's pay. Mayor Wille advised that the only impact he can see is the delay of the payment of the check and the department heads have been employed for a while and they have accumulated plenty of compensatory time. Commissioner Stark asked if there is a price tag attached to this suggestion? Town Manager Ciummo advised that one day's pay for employees, minus the department heads is $2,265. Commissioner Stark stated that this will cost the Town about $11,000 and advised that she thinks this is a finance problem and the employees should not be penalized for this problem, but, it should not cost the Town $11,000 to correct this type of error. Commissioner Stacey stated that the cost for nonexempt employees will be $11,367 and if all department heads are included, it will cost $14,283. Commissioner Stacey stated that he is in favor of the nonexempt employees being paid the $11,367 to resolve the problem. Mayor Wille asked Town Manager Ciummo about the idea of having the pay date on Wednesday instead of Friday? Town Manager Ciummo stated that this was the original request for the least impact, but, that is a tall order to do payroll in three (3) days, but we can try to do it if we have to. Town Manager Ciummo stated that it would be ideal to have the five (5) days. Mayor Wille advised that the Town Commission is trying to find a middle ground here and Town Manager stated minimally Wednesday or Thursday. Town Attorney Gougelman clarified with the Town Commission and Town Manager that this one-time bonus will be just an extra week of wages, not to include sick leave, retirement or vacation, etc. Labor Law Attorney Fawsett advised that it will be base compensation at each person?s hourly rate. Mayor Wille asked if the pay date could be on Wednesday? Labor Law Attorney Fawsett advised that he discussed Wednesday, and if it will work, it will cost the Town less in the makeup bonus Commissioner Stacey discussed that with the work week ending on Friday, the time sheets can be given to Finance Clerk as soon as possible on Monday morning, the Finance Clerk reviews the time sheets and makes the adjustments, they are given to the service on Tuesday morning and checks are cut and returned on Wednesday and signatures are obtained within two (2) days and this should not be a problem. Town Manager Ciummo stated that she would like the payroll to show that the time worked will be the actual time reflected in the payroll records. Town Manager Ciummo reviewed the different types of deductions that can be changed in the payroll system and potential problems. Commissioner Remark stated that the Town has apparently been doing payroll like this for a long time and that she believes it is not good business sense to pay employees prior to the work being done. COMMISSIONER STACEY MOVED, SECOND VICE MAYOR REMARK THAT THE TOWN PAY NONEXEMPT EMPLOYEES ONE (1) WEEK?S SALARY, EXCLUDING BENEFITS, NOT TO EXCEED $11,367 AND THAT EXEMPT EMPLOYEES USE COMPENSATORY TIME TO MAKE UP THE HOURS AND THAT THE PAY DATE BE CHANGED FROM THURSDAY TO FRIDAY. VOTE: COMMISSIONER STACEY, AYE. VICE MAYOR REMARK, AYE. MAYOR WILLE, AYE. COMMISSIONER STARK, NAY. COMMISSIONER SMITH, NAY. MOTION CARRIED. Commissioner Smith asked Town Manager Ciummo if she will be bringing back a policy for new employees and that all new employees will be advised when they are hired that a week?s pay will be withheld? Commissioner Stark asked if the Town Commission will be able to review, at a near date, the procedures that are put in place to properly input the variables? Town Manager Ciummo stated, yes. Mayor Wille stated that these Town employees work hard and stated that he does not have a problem rewarding them when it is due and that he is pretty comfortable with providing this bonus. I. DISCUSSION AND POSSIBLE ACTION REGARDING AMENDMENTS TO TOWN'S POLICIES AND ADMINISTRATIVE PROCEDURES MANUAL: 1. CHAPTER 3 "STANDARDS OF CONDUCT" Attorney Fawsett stated that any employer with 15 employees is under the discrimination laws, Federal and State. Attorney Fawsett advised that he has updated the Town?s policy and advised that the Policy Against Sexual Harassment and Other Harassment should immediately follow the Equal Employment Opportunity Policy in the manual. Attorney Fawsett explained that with the case law, employers need a very clear policy preventing any type of harassment based on sex, race, etc. and the employer needs to define what it is. Attorney Fawsett stated that this policy section 3.03 has been taken right out of EEOC guidelines on sexual harassment. Attorney Fawsett advised that the Town post this policy next to the Department of Labor postings and advised that this policy is intended to prevent unwelcome conduct in the workplace regarding race, sex, age, etc. and that the policy be discussed with employees at least once per year. Commissioner Stark requested that number 5., 'Sexual and other harassment may also be committed by non- employees in the workplace' be reworded for clarity. Commissioner Stark asked who it would be reported to if the harassment was committed by the Town Manager? Attorney Fawsett stated that they would report it to their immediate supervisor or department head. Commissioner Stark discussed the Brevard County School Board's policy regarding harassment and Attorney Fawsett stated that he does not believe there needs to be something in the policy regarding who the employee contacts regarding harassment from the Town Manager and stated that this gets in to too much excessive detail. After a discussion, Attorney Fawsett stated that he believes that this policy adequately requires someone harassed by the Town Manager to immediately go to someone else, it is up to the Town to investigate the complaint. Town Attorney Gougelman suggested that there be an independent person, i.e., the Town Clerk or Town Attorney. Attorney Fawsett advised that he would reword number 5 as follows: ?Sexual and other harassment committed by non-employees in the workplace is also prohibited.? COMMISSIONER STACEY MOVED, SECOND VICE MAYOR REMARK THAT THE TOWN ADOPT AMENDMENTS TO THE TOWN?S POLICIES AND ADMINISTRATIVE PROCEDURES MANUAL CHAPTER 3 AS FOLLOWS: INSERT THE WORD 'POLICY' IN FRONT OF 'AGAINST SEXUAL HARASSMENT AND OTHER HARASSMENT' IN THIS SECTION; MOVE THE POLICY AGAINST SEXUAL HARASSMENT AND OTHER HARASSMENT TO IMMEDIATELY FOLLOW SECTION 3.02 AND RENUMBER SECTIONS ACCORDINGLY; AND REWORD NUMBER 5 IN THIS SECTION (3.03) TO READ, ?SEXUAL AND OTHER HARASSMENT COMMITTED BY NON-EMPLOYEES IN THE WORKPLACE IS ALSO PROHIBITED.? VOTE: COMMISSIONER STACEY, AYE. VICE MAYOR REMARK, AYE. COMMISSIONER STARK, AYE. MAYOR WILLE, AYE. COMMISSIONER SMITH, NAY. MOTION CARRIED. 2. CHAPTER 4 "GENERAL RULES AND REGULATIONS" Attorney Fawsett stated that the solicitation section would become a major matter only when there is an attempt by a labor organization to organize employees. Attorney Fawsett advised that if the Town has a policy against solicitation, it has to be against solicitation of any kind. Commissioner Smith advised that the Girl Scouts and other organizations have always been allowed to come into Town Hall to sell the cookies, etc. and asked Attorney Fawsett if they would no longer be able to do this? Attorney Fawsett stated that over that last 30 years, there has been so much litigation on this subject and things like bake sales, Girl Scout cookies, school activities and advised that this is not a life or death issue and it is up to the Town Commission and advised that his experience with the labor organizations in small municipalities is either something the work force wants or doesn't want. After a discussion, Mayor Wille stated that we can take this out of the policy if the Town Commission believes someone will take this point literally, but, doesn't see leaving this section in here will eliminate the solicitation of Girl Scout cookies. Commissioner Stark asked if there was a problem leaving the sentence in the current policy under solicitation which states, 'Employee contributions to recognized charitable organizations are purely voluntary?' Attorney Fawsett advised that there is no problem with this, it seems to be out of place and stated that it does not come under the solicitation policy and advised that it should be under a miscellaneous item section. Attorney Fawsett advised adding a sentence to the third section under 4.04, Employee Solicitation of Other Employees as follows: 'This rule does not apply to the distribution which is part of assigned job duties or to distribution of materials for Town programs or functions.' VICE MAYOR REMARK MOVED, SECOND COMMISSIONER STACEY TO ADOPT AMENDMENTS TO THE TOWN?S POLICIES AND ADMINISTRATIVE PROCEDURES MANUAL CHAPTER 4 AS AMENDED AS FOLLOWS: 'CREATE A SECTION 4.10 TO BE MISCELLANEOUS AND INSERT THE FOLLOWING: 'EMPLOYEE CONTRIBUTIONS TO RECOGNIZED CHARITABLE ORGANIZATIONS IS PURELY VOLUNTARY. NO COERCION OF AN EMPLOYEE TO MAKE CONTRIBUTIONS SHALL BE PERMITTED.' AND, IN SECTION 4.04 UNDER 'EMPLOYEE LITERATURE DISTRIBUTION,' ADD A SENTENCE AS FOLLOWS: 'THIS RULE DOES NOT APPLY TO THE DISTRIBUTION WHICH IS PART OF ASSIGNED JOB DUTIES OR TO DISTRIBUTION OF MATERIALS FOR TOWN PROGRAMS OR FUNCTIONS.' VOTE: ALL AYES. MOTION CARRIED. Mayor Wille called for a recess at 7:25 p.m. and called the meeting back to order at 7:34 p.m. 3. CHAPTER 20 "GRIEVANCE/COMPLAINT PROCEDURE" Attorney Fawsett stated that the only changes made to this policy were made for the purpose of clarification and that it is a good procedure. Attorney Fawsett stated that he will put together a discharge procedure to dovetail with the grievance procedure and this procedure will basically set forth that anybody who is recommended or proposed to be discharged involuntarily or demoted or suspended without pay for more than one day, will be given a written notice of the charge and an opportunity to meet with the Town Manager before any decision is made for the purpose of explaining, rebutting, etc. Attorney Fawsett explained that then the Town Manager is obligated to give that full consideration before deciding, and, if they are discharged, etc. they will receive a letter notifying them of their right to have a hearing before an independent hearing officer. Attorney Fawsett stated that this procedure is required by law for any non-probationary public employee. Attorney Fawsett stated that this would be a separate procedure. Mayor Wille stated that in Step I of the Grievance Procedure it states, ?The employee shall, within five working days of the incident, present the grievance to his or her immediate supervisor.? Mayor Wille clarified that if this were a police officer, he would report to a Sergeant and then it would go to the Police Chief then to the Town Manager. Vice Mayor Remark asked Attorney Fawsett if the Town Manager has a grievance, who does she report it to? Attorney Fawsett advised that the Town Manager would present it to the Town Commission in a public meeting. Commissioner Smith asked Attorney Fawsett if the grievance is against the Town Manager, who is it reported to? Attorney Fawsett advised that there is no provision for this because in a sense, all grievances will be against the Town Manager because the Manager makes the final decision. Attorney Fawsett stated that the Town Manager is the Chief Executive Officer and, if the Town Manager is not doing an acceptable job, your remedy is something other than hearing a grievance every week about some employee that is unhappy with the Town Manager. Attorney Fawsett advised against using the Civil Service Board to hear employee grievances because the Town should not have a body of appointed part-time citizens hearing Town employment matters other than discharges. Commissioner Stark stated that according to the grievance steps, it will take about one (1) month to go through this grievance process. After a discussion, the Town Commission revised the days for the grievance process as follows: Step I, The employee shall, within five (5) working days of the incident, present the grievance to his or her immediate supervisor. The supervisor will notify the employee of his or her decision in writing, within three (3) working days after the meeting with the employee; Step II, If the aggrieved employee feels that the matter has not been adjusted to his or her satisfaction in Step I, he or she may submit the matter in writing to the Department Head within three (3) working days after receipt of the supervisor?s decision. The Department Head will schedule a meeting with the employee within three (3) working days after receipt of the grievance. The Department Head shall give his or her written answer within four (4) working days after the scheduled meeting; Step III, If the grievance is not resolved to the employee?s satisfaction in Step II, he or she may appeal in writing to the Town Manager within three (3) working days after receipt of the Department Head?s answer in Step II. The Town Manager shall schedule a meeting with the employee within five (5) working days after the appeal and shall render a decision in writing within five (5) working days thereafter. The decision of the Town Manager shall be final and binding. VICE MAYOR REMARK MOVED, SECOND COMMISSIONER STACEY TO ADOPT AMENDMENTS TO THE TOWN'S POLICIES AND ADMINISTRATIVE PROCEDURES MANUAL CHAPTER 20 GRIEVANCE, ATTORNEY FAWSETT TO CREATE A DISCHARGE (DUE PROCESS) PROCEDURE FOR SECTION 20.02, ITEM #3 WHICH IS TO COME BACK TO THE TOWN COMMISSION FOR REVIEW AT THE NEXT MEETING; AND THAT SECTION 20.03 STEPS I THOUGH III, THE NUMBER OF DAYS FOR THE GRIEVANCE PROCESS BE AS FOLLOWS: STEP I, THE EMPLOYEE SHALL, WITHIN FIVE (5) WORKING DAYS OF THE INCIDENT, PRESENT THE GRIEVANCE TO HIS OR HER IMMEDIATE SUPERVISOR. THE SUPERVISOR WILL NOTIFY THE EMPLOYEE OF HIS OR HER DECISION IN WRITING, WITHIN THREE (3) WORKING DAYS AFTER THE MEETING WITH THE EMPLOYEE; STEP II, IF THE AGGRIEVED EMPLOYEE FEELS THAT THE MATTER HAS NOT BEEN ADJUSTED TO HIS OR HER SATISFACTION IN STEP I, HE OR SHE MAY SUBMIT THE MATTER IN WRITING TO THE DEPARTMENT HEAD WITHIN THREE (3) WORKING DAYS AFTER RECEIPT OF THE SUPERVISOR?S DECISION. THE DEPARTMENT HEAD WILL SCHEDULE A MEETING WITH THE EMPLOYEE WITHIN THREE (3) WORKING DAYS AFTER RECEIPT OF THE GRIEVANCE. THE DEPARTMENT HEAD SHALL GIVE HIS OR HER WRITTEN ANSWER WITHIN FOUR (4) WORKING DAYS AFTER THE SCHEDULED MEETING; STEP III, IF THE GRIEVANCE IS NOT RESOLVED TO THE EMPLOYEE?S SATISFACTION IN STEP II, HE OR SHE MAY APPEAL IN WRITING TO THE TOWN MANAGER WITHIN THREE (3) WORKING DAYS AFTER RECEIPT OF THE DEPARTMENT HEAD?S ANSWER IN STEP II. THE TOWN MANAGER SHALL SCHEDULE A MEETING WITH THE EMPLOYEE WITHIN FIVE (5) WORKING DAYS AFTER THE APPEAL AND SHALL RENDER A DECISION IN WRITING WITHIN FIVE (5) WORKING DAYS THEREAFTER. THE DECISION OF THE TOWN MANAGER SHALL BE FINAL AND BINDING. VOTE: ALL AYES. MOTION CARRIED. III. DISCUSSION OF AN AMENDMENT TO THE TOWN?S POLICIES AND ADMINISTRATIVE PROCEDURES MANUAL 1. CHAPTER 9 "WAGE AND SALARY PLAN" Town Manager Ciummo stated that in Attorney Fawsett?s recommendations to employment issues, he talked about payroll issues dealing with overtime, compensatory time and this item is for discussion purposes. Attorney Fawsett stated that in his letter of April 10, 2001, he discussed payroll practices, time keeping practices, overtime practices in the Police Department, etc. and reviewed these items with the Town Commission. Attorney Fawsett stated that the Town Commission has to decide some things before he can draft up amendments to the wage and salary plan policy. Attorney Fawsett stated that according to the Town Manager and others, there is a difference between the departments as to how overtime compensation is calculated. Attorney Fawsett advised that the administrative manual says that in calculating statutory overtime, you don?t count paid time that is not worked such as vacation, sick, etc. Attorney Fawsett stated that the Fair Labor Standards Act does not require you to count anything as hours worked except the hours worked and the administrative manual states in so many words that such things as vacation, sick leave, other paid hours not worked do not count for the purposes of calculating overtime and stated that this raises an issue of unfairness when you have some employees having overtime calculated for them in a way more favorable than others. Attorney Fawsett advised that the Town Commission needs to decide how it wants to handle the shift overtime. Attorney Fawsett stated that the police officers are getting paid overtime at time and one-half for hours worked over 12 per shift, which is fine, but not required. Attorney Fawsett advised that there is a conflict with this practice, the administrative manual and the 1994 Police Officer?s benefits document. Attorney Fawsett stated that the documents need to be consistent. Attorney Fawsett stated that there needs to be a policy as to who approves overtime and under what circumstances because there seems to be a dispute about that. The Town Commission advised that they would like the policy manuals to be consistent. Mayor Wille advised that the Town Commission has a copy of the letter from Attorney Fawsett, but, would like some recommendations from the Town Manager, along with some substantiation for policy changes and advised that he would be in favor of a discussion to give guidance to the Manager and Attorney to come forward with a policy proposal. Attorney Fawsett stated that he feels the Town would like to continue with the shift overtime for the police officers and that the discrepancies in the manuals need to be cleared up regarding this. Attorney Fawsett stated that he needs advice on how the Town would like to handle the difference in how the overtime issue is calculated for the police officers and regular Town employees. Attorney Fawsett gave an example of how overtime is calculated in the Police Department as, if a person works Monday through Thursday, eight (8) hours per day, gets either sick or vacation time on Friday, comes in and works on Saturday as well, they have worked 40 hours and have been paid for 48 hours, under the Melbourne Beach Police Department method of calculation, they have occurred eight (8) hours at time and one-half and under the Melbourne Beach non-Police Department calculation they would not have. Attorney Fawsett asked for direction on how to write a recommended policy regarding overtime. The Town Commission agreed that overtime is to compensate for what is above and beyond what is contracted for standard hours to be performed. After a discussion regarding how overtime is calculated, Attorney Fawsett suggested that he and the Town Manager make a recommendation to the Town Commission for consideration regarding this policy. The Town Commission suggested that if a policy change is made, it could be considered taking away a benefit, even though the Town is not doing this correctly. The Town Commission asked that Attorney Fawsett and the Town Manager get together and bring back a policy for consideration. Mayor Wille stated that he is concerned with a policy regarding personnel files because the personnel files are not all held in one (1) location and in all organizations he is familiar with, personnel files are handled by the Human Resources Department. Commissioner Smith advised that the Police Department files are kept with the Chief because we had a Town Clerk years ago who was giving out information from the police files. Commissioner Smith stated that she does not agree with changing the policy because whoever is to keep the files, which will most likely be the Clerk, and I don?t know if she will want that responsibility. Mayor Wille stated that he feels it appropriate for all personnel files be in one location and suggested that either the Manager or Clerk be responsible for the files. Town Manager Ciummo stated that unusually the Department Head and civilian employees' personnel files are kept in the Human Resources Department or Town Clerk?s office. Mayor Wille asked for a policy regarding this. Attorney Fawsett advised that under the office of the Town Manager, the Town Charter says the Manager shall be the Chief Administrative Officer and directly responsible to the Town Commission for all Town affairs placed in his or her charge by this Charter or by ordinance or resolution and the Manager shall direct and supervise the administration of all departments of the Town except the Town Clerk and Town Attorney. Attorney Fawsett advised that he thinks the Town can, by resolution, place the Town Clerk under the supervision of the Manager to the extent of having all personnel files in the hands of the Clerk under the direction of the Manager, which may solve the problem. Attorney Fawsett advised that the statutes regarding police personnel files are the public record's law, with exemptions as provided for Police Officers, there are also ADA laws and record retention laws. It is the consensus of the Town Commission that Attorney Fawsett bring back a policy regarding personnel records. VII. ADJOURNMENT COMMISSIONER SMITH MOVED, SECOND COMMISSIONER STACY TO ADJOURN. VOTE: ALL AYES. MOTION CARRIED. ________________________________________ ROBERT D. WILLE, MAYOR ________________________________________ CYNTHIA E. MASNY, CMC TOWN CLERK NOTE: A mechanical recording has been made of the foregoing procedures of which these minutes are a part and is on file in the office of the Town Clerk. |