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02-28-1990 ~ (J o CITY OF EDGEWATER MERIT BOARD MINUTES REGULAR MEETING WEDNESDAY, FEBRUARY 28, 1990 CONFERENCE ROOM, CITY HALL Chairman Harry Jones called to order Merit Board at 7:30 P.M., Wednesday, Conference Room of City Hall. a regular meeting of the February 28, 1990 in the ROLL CALL: CECE STEVENS KAREN GRASBERGER SONDRA MEAGER-PENGOV HARRY JONES, CHAIRMAN PRESENT PRESENT PRESENT PRESENT Also present was Lisa Miller, Secretary. APPROVAL OF MINUTES: Cece Stevens made a motion to approve the minutes for the Special Meeting of the Merit Board on Tuesday, January 16, 1990 with the following corrections submitted by Mr. Jones: In the first line of the first paragraph the words "grievance hearing" l-lere to be added so that the sentence was to read- Mr. Jones requested the witnesses for Mr. Chamberlin's qrievance hearinq to be swon, in. In paragraph four (4), it should be changed to ....the evaluation had been changed from a score of 89 points in October to 84 points in November and felt that it could have been unfair. Sondra Meager-Pengov seconded the motion. Motion passed 4-0. Kal-en Gl-asbel-gel- made a mo t ion to accep t the t1 i nu tes of the Regular Meeting of the Merit Board on Wednesday, January 24, 1990. Seconded by Cece Stevens. Motion passed 4-0. UNFINISHED BUSINESS Letter from City Attorney Re: The Swearino In At Grievance Hearinos. Mr. Jones read through several attention to. items that he wanted to call Whichever avenue is selected, a hearing involving a grievance is a fact-finding hearing in the nature of a quasi judicial proceeding. Mr. Jones stated that this is one of the points that was brought up by Mr. Johnson - that the board was not a judicial hearing. This says that \-Ie're a "quasi judicial hearing." He stated that quasi means "similar to" or"like." Guasi judicial decisions are reviewable by the Courts to insure that the board below afforded the essential requirements of law and the decision was based upon competent substantial evidence. (..) o Page 2 Mr. Jones stated that in a grievance hearing, if the employee is not satisfied with the Board's decicsion he can take it to the Council for review. If he is not satisfied with that he can take it to court. He stated that as the Attorney told him, that if it goes to court and the witnesses were not sworn in, it would be thrown out of court. It would then bounce back to the City and probably back to the Board or just die out there. He felt that what he was doing was not only legal, but it was a requirement. Ms. Grasberger stated that in this case even though we were in the right, they still would have refused and there was nothing that the Board could have done. He is the manager of this City. Ms. Stevens stated that the City Manager could not dictate to the others that they could not be sworn in. Ms. Grasberger stated that The City Manager continued to insist that the others were not witnesses. Mr. Jones stated that they were presenting data, and evidence therefore they were witnesses. When Mr. Johnson appeared before the board he was not appearing as the City Manager. Ms. Grasberger stated that he was speaking as the City Manager. Mr. Jones state that Manager. Mr. Jones pal- t. he had no stated that ,-ight to that was speak as the City a mistake on his own Ms. Grasberger stated that she was not saying Mr. Jones was wrong, she was saying the board was right, but there'd be "heck" to pay to prove it. It may be the law, its only the law if you get caught. For instance, a witness who testifies as to are related to the issue before the Board, oath and his testimony must be based knowledge and observations, not on rumor. matters of fact which should testify under on his own personal Whether a witness testifies under oath the credibility of the individual and his/her testimony by the Board. or not, directly affects the weight to be give to In your memo, you used the word "participants" at a hearing. Mr. Jones stated that Mr. Alvarez goes on to state that if they are giving information, they are witnesses. Ms. Grasberger stated that in that same paragraph it stated that in every hearing there are participants who are not witnesses. Mr. Jones stated that witnesses. He stated Union Attorney. there that are participants who are not Mr. Alvarez gives an example of a Ms. Grasberger stated that she thinks that Mr. excusing himself from being included as a witness. Johnson J-laS Ms. Stevens stated that Mr. Johnson had no right to excuse the other people. Mr. Jones stated that when Mr. Johnson signed the rating, he signed it as Personel Officer. His position agreement says that he may be the head of one or more departments as he sees fit. At this point he is the Personnel Officer and he was appearing as the Personnel Officer. The grievance procedure goes from his immediate Supervisor, to his Department Head, to the Personnel Officer. So in fact he was Personnel Officer at that time. ~ Q Page 3 Ms. Pengov questioned whether Mr. Johnson was requested to come to the meeting by anyone or did he come of his own accord. Mr. Jones stated that he requested Mr. Johnson to come. Mr. Jones questioned if any of the members of the were influenced by the unsworn statements made by Mr. Overstreet, or Mr. Tenney. Merit Board Mr. Johnson, The members stated that they were not. same. The vote would have been 2-2. They would have voted the Ms. Pengov stated that this was where they needed their fifth member. Mr. Jones stated that this brings up another problem. He admitted that he was in error by having a four panel board hear Mr. Chamberlain. There was no real decision made. He should have advised Mr. Chamberlain that there were only four board members present and asked Mr. Chamberlain if he wanted to wait for a full panel. It was Mr. Chamberlain's right to say yes or no. The Board should have given Mr. Chamberlain the option to postpone. Mr. Jones stated that Mr. Chamberlain had told him verbally that he felt he did not get a fair trial. There were only four people present. The other people were heard even though they were not sworn. The delay of his rating for a full month. Ms. Pengov stated that the delay of his rating was explained. Mr. Jones stated that it was explained, but it to the extent that the regulations say. regulations. was He not explained had read the Ms. Grasberger stated that at the time it was explained. She feels that if they were going to object to the length of time it should have been done then. You can't go back now and say I've read the regulations. Mr. Jones stated that it was there as far as he could see and it was not taken into consideration. If the rating had been made at the time it was supposed to have been, instead of a month later, there would have been a completely different set of regulations involved in it. Ms. Stevens agreed and stated that way rather than the new way. it would have gone the old Mr. Jones stated that the evaluation was to have been done October first and it was done in November. Ms. Stevens questioned if anyone else's done during that time in the same department. Mr. Jones stated that he did not know, hadn't gone into with that department. it was something they Ms. Grasberger stated that Chamberlain's evaluation was anniversary date was October month of his anniversary. according to the minutes, Mr. done on November 8th, his 1, and its usually done during the Ms. Stevens stated that even if it wasn't done on his anniversary date the evaluation, it should have been done up to October 1st. o o Page 4 Ms. Grasberger stated that it said in the minutes that Mr. Overstreet stated that the reason the evaluation for Mr. Chamberlain was done late was because he was waiting for the Cody and Assoc. Inc. report but was then told to go ahead and do the evaluation. Mr. Jones stated that it was not done at the proper time, it would have been under a different set of regulations completely. Ms. Pengov asked what he went by the old standards or the new standards. Mr. Jones stated that they went by the Cody and Associates. Ms. Stevens stated that that was what her question was, was anybody else's evaluation done during that time period. ]f he had done anybody's evaluation either Mr. Overstreet or Mr. Tenney. Mr. Jones pointed out board feel rehearing? stated that the question has come up, the man has two errors that were made in the board. Does the that based on these errors he has the right to a Ms. Pengov asked that in a rehearing what would they do, make a recommendation to Council to do what? Have him reevaluated? Mr. Jones stated at this time no. He's looking at rather th~n turning it to Council and have them bump it back to us for us, since we made the errors we make the correction. Ms. Pengov state that say we rehear it, that Mr. Chamberlain was shafted. and then we determine Ms. Stevens stated that he deserved his 3% raise. Ms. Pengov stated that no, we can't do that. Ms. Grasberger stated that Mr. Tenney stated that Mr. Chamberlain is capable of doing a better job than he has done. As a supervisor she has to say if she as a supervisor felt that was the situation, that she had an employee that has proven historically that they can do a better job and for whatever reason now at the point in time that she's evaluating them, they are not she would fault them. Mr. Jones stated that he would agree with her there. Ms. Grasberger stated that or not is telling the Chamberlain is capable evaluation was fair. if we're saying that Mr. Tenney sworn truth by saying he feels that Mr. of doing a better job. Then the Ms. Pengov stated that in the same respect Mr. Chamberlain stated that he was never reprimanded or anything during this time. Ms. Grasberger stated that she does not reprimand people for not working up to their full potential. Ms. Pengov stated that it should be mentioned to find out what was going on. None of that was ever brought up if she was not mistaken. Ms. Grasberger stated that if you had told them in the past on an doing them a disservice if she attention. She told them that they have a quality evaluation that didn't bring were capable of employee, she she would be this to their doing much Q o Page 5 better work, you have proven that working up to snuff now. to her before but you're not Ms. Pengov asked employee during going on? if Ms. Grasberger if a six month probation, she wouldn't tell an wouldn't you ask what's Ms. Stevens stated they would get punished for the whole year, by not getting a raise. That's not fair. Ms. Pengov stated it's like doing something bad in June and getting your hand slapped in December. Ms. Grasberger stated that she was concerned with the message that the board would be sending employees and Elly Johnson if the Board attempts to backpedal at this time. If in fact this employee believes that the Board made an error, and if in fact Mr. Jones stated that the Board did. She feels that it is unfortunate but she is not sure that the Board have the authority to attempt to do it again. Ms. Pengov stated that she aggreed. Ms. Grasberger stated that she felt that they would be giving ammunition to the powers that feel the Board is" bucking whatever" to eliminate the Board. She feels that the Board can do more for the employees by staying a Board that is there for them and does the very best we can in the capacity that they're here for. She stated that we are all painfully human. Humans do make errors. Mr. Jones stated that he's admitting that he made a couple of errors on this one. Ms. Grasberger stated that she didn't know if the Board had the authority to go back and rehear. Ms. Pengov stated that if the Board did rehear it decided that it was injust, what can they do? recommendation? and they all What is their Ms. Stevens asked what are their options? Mr. Jones stated that the recommendation would be the same way it was before. It would be based on the information that is given and they will each vote according to their own conciense. In the interest of having a democratic board, he started to stop when Ms. Grasberger started to ask questions. But he thought no, she wants the information, he was going to let you have the information. However, the information was unsworn. He doesn't know if Mr. Chamberlain can go back to Councilor not. Ms. Pengov stated that they can either go to Merit Board or they can go to the Union. Mr. Jones stated that he didn't .~now if Mr. Chamberlain could go to Council now or not. Ms. Pengov asked if they decided that Mr. Chamberlain was treated injustly and he should be awarded another evaluation, what happens? The Board can't make that determination, don't they make a recommedation to Council? Mr. Jones stated that she needed to read the regulations. He stated that #1 Merit Board hear greivances. They will make a decision. If the employee is not satisfied with the decision, the employee may then take it to the Council. NOT the employee and the management - The Employee. o o Page 6 City Council shall establish by ordinance the duties and the functions of the Merit Board which shall include but not necessarily be limited to classificatio, qualification, employee relation, grievance procedures, and rights of appeal for disiplinary action. The decision and recommenations of the Merit Board shall be final unless appealed to the City Council, which may reverse it's decision or recommendation only by a 4/5 vote of the Council. Ms. Pengov questioned if the Employee goes directly himself to Council. Ms.Stevens and Mr. Jones concurred that one employee did. He even took a petition signed by everybody at Public Works. Mr. Jones stated that they needed to make up their minds tonight if they should offer Mr. Chamberlain a rehearing. He wanted to go one step further. He wants the Board to look at the Bylaws at that time due to the fact that they had a legal description or decision from the attorney to include in the Bylaws that witnesses in grievance hearings will be sworn. Ms. Grasberger stated that it was after the fact. Mr. Jones agreed that it was after the fact, but that they were still looking at it right now and the attorney has suggested that we send it to him and let him put the proper wording in the Merit Board Bylaws. Ms. Grasberger stated that the attorney couldn't do that. Ms. Pengov stated that the Board can make an amendment and send it to Council. Mr. Jones stated that Mr. Alvarez had as much right to do that as he had to give the Board a legal decision. It is a decision that the attorney has made based on laws and cases. Ms. Grasberger stated that she is not saying your're wrong. She's saying that another attorney could make a different decision. She stated that what she is saying is that they were going to open a can of worms. The Board would loose it's credibility, and the employees of this City may lose a board that is at least is helping them part of the time. She feels they need to weigh it out. Do they want to eliminate the Board that is maybe going to help someone along the way. She stated that she is not saying Mr. Jones is wrong, part of her agrees. She has to weigh it out both sides. She would really have to think long and hard before she would make a decision that would eliminate the Board, not this Board. The Board's longterm existence to help present and future employees. But she is only one. Mr. Jones stated that in addition that the attorney has also suggested that in the revision of the Bylaws that there be a procedure for a rehearing in case of errors. Ms. Pengov stated that it was like the jury finding you guilty, giving you the death sentence and two months later calling you back. You don't get a second chance. Mr. Jones stated that there is such a thing as a mistrial. Ms. Graberger stated that the wording was "quasi judicial." They don't need to go setting themselves up as judge and jury here because they are not. o o Page 7 Ms. Pengov stated that would be like the Code Enforcement Board fining somebody $250.00 a day for a violation. You can't call them back and say we made a mistake we really wanted to fine you $500.00 per day. You can't do it. The evidence put before us is what you have to go by. She feels that they would be in tl-oub Ie. Ms. Grasberger state that she felt Mr. Jones intentions were good, but good intentions can get you burnt at the stake. Mr. Jones stated that he is going by the recommendations fo the tCity Attorney. Ms. Pengov stated that as far as putting in the Bylaws the swearing in procedures as long as its a grievance hearing they can and should be sworn in. She thinks its in the Code Book. Mr. Jones didn't remember reading it in there. He stated that that was why they asked the City Attorney for a decision. Ms. Grasberger questioned if there had been any response from the City Manager to the letter. Mr. Jones stated that there had been no response or contact. Ms. Pengov stated that she thought that all he wanted to see was the decision in l~riting. That l~as all he was asking for. She didn't feel that there would be any backlash from it. Ms. Stevens stated that Mr. that. Johnson was too professional for Ms. Pengov stated that Mr. Johnson asked for it and he got it. Next time he comes as a witness, swear him in. If he comes as a l~i tness. Mr. Jones stated that if he signs as the Personnel Officer and he can't sign as anything else. If he signs as the Personnel Officer, Mr. Jones will ask him to be there. He will be there as a l~i tness. Ms. Grasberger stated or he will not be here. Mr. Jones asked if they could see the ramifications of this. The man comes up with a grievance, Personnel Officer, Department Head and Supervisor refuse to be sworn. Mr. Jones state that he would not hear them. He would tell them that they could be excused. Ms. Grasberger stated that they would have the same ultimated decision. The issue would be closed. You couldn't only hear one side. Mr. Jones stated that the one side had its opportunity and the other side refused to be sworn. Ms. Grasberger stated that you couldn't hear the second side. You cannot make a decision that way. The issue would be closed. Mr. Jones stated that he would like to table it and look at it at the next meeting. Ms. Pengov moved that the discussion on Jose's letter as far as swearing in be tabled until the next meeting. Ms. Stevens seconded. Motion Passed 3-1. Ms. Grasberger voted NO. o o Page 8 NEW BUSINESS: Ms. Stevens made a motion that they discuss the Sunshine Law. Ms. Pengov seconded. Motion passed 4-0. Mr. Jones stated that they all got a copy of the excerpts of the the Sunshine Manual. He stated that he attended a seminar in Deland three weeks ago on the Sunshine Law. He discussed some of the do's and don'ts that were talked about at the seminar. Mr. Jones stated that it was to regulate communications so that no two members of the board could get together to make a decision before the meeting. All of the discussion has to be out in the open. That is the prime reason. It was discussed that it is not the meeting of the Board Members that causes a problem, it is what they discuss. They can talk about what has happened, but not about anything that is pending or may happen in the future. Mr. Jones stated that the only way that he could send a Memo to someone was to send it through the secretary and everybody get a copy of it. Ms. Grasberger stated that the best way was "When in doubt, keep your mouth shut." Ms. Pengov stated that as soon as she became the employee representative she people come up to her and she didn't know how far she could go without violating the Sunshine Law. She stated that she talked to her boss and he straighted her out. Mr. Jones stated that everything they writing becomes a matter of public record. the records manual. do in meetings or in He will get a copy of Mr. Jones stated that one of the things that he was going to look up was a new Attorney General's decision stating that the cost of duplicating material to a person can be the cost of the paper and ink only. Not the postage, not the employees time, nothing else other than the paper and the ink. One of the ways that the other cities were getting around this were getting around this with large items, multi paged stuff. They have it printed. Mr. Jones stated that a rough draft of a document is not considered public record until that rough draft is passed on to another board member of the same board. Mr. Jones stated that there were a few exemptions to the Sunshine Law for example: The City Manager was exempt. Mr. Jones stated that the Sunshine Law and/or all of the for the prosectution. fine is 5500.00 for violating the attorney fees that are necessary Ms. Pengov asked if Mr. Jones knew when the revised edition was coming out? Mr. Jones stated that they did not give an exact date, but it should be shortly. Ms. Grasberger stated that basically the only correspondence they should be receiving would be through the secretary. Mr. Jones agreed. Everything that comes to you has to be sent to the newspapers in the area. o o Page 9 DISCUSSION ITEMS/CORRESPONDENCE: Mr. Jones stated that Owens. they do have a resignation from Marvin Ms. Stevens made a motion that Marvin Owen's resignation be accepted with thanks. Ms. Grasberger seconded. Motion passed 4-0. Ms. Stevens asked if there were applications on file. Mr. Jones stated that we needed to prepare a memo to the Mayor and Council sending a copy of the letter and requesting that a replacement be appointed as soon as possible. Ms. Stevens asked if there were applicants on file who goes through and checks the applicants. Mr. Jones stated that it would be Mr. Johnson, or his designee. Ms. Pengov stated that be Susan Wadsworth~ she thought~ the City Clerk. Ms. Steven questioned how the City Employees liked the Cody and Associates study. Ms. Pengov stated that for those who understand it~ from what she gathers. There were many who didn't understand the purpose of it. Once they were enlightened to its purpose and shown in black and white what was there the ones that she talked to were fine. There are still some that feel that their particular job description wasn't treated with enough credit~ because they didn't get a step up. She told them to go to their Department Head~ he will go to the City Manager~ and then you can decide on whether you want to go to the Merit Board or the Union. You can do one or the other, not both. Ms. Pengov sited an example with an employee that did not understand how the Cody Study affects him now as well as the way it would affect him in the future considering the maximum he would be able to make in his position. Ms. Grasberger questioned why Supervisory level? Explained upset. that to wasn't explained at the an employee before he gets Ms. Pengov stated that because employees heard all without seeing the actual report. this hearsay Ms. Grasberger stated that she thought any communication that eliminates that kind of upsetment smoothing the waters. Keeping it from getting to be a grievance is good. It also needs to get back to that Department Head~ that they need to have their Supervisors explaining to their people so they can understand it. Ms. Pengov questioned whether go back to the Supervisor. it would be her responsibility to Ms. Grasberger stated that they should do it as a general observation. Ms. Pengov questioned does she do it or does the Board do it? Ms. Stevens stated that she didn't thin~( that Ms. Pengov should do it. Ms. Pengov stated that she didn't think she should either that's why she let it go. Q o Page 10 Ms. Pengov stated that the employee suggested that a general memo to all Supervisors saying that they should explain it. Mr. Jones stated that since he had done this many years he had offered to set up a training program to start with Department Heads and give them the run down on the program and then go from them down to the Supervisors and then to the Employees. He's offered to do that. Ms. Pengov stated that the Department Heads didn't get the paperwork until it was passed so they didn't even know. Ms. Grasberger asked if the Department Heads are now more educated. Ms. Pengov stated that she did not know. Ms. Grasberger stated that Ms. Pengov in her position as representative for the employees was in a position to hear whether or not their feeling more comfortable or whether that still tends to be a black hole. They still don't understand they still aren't being given enougj input information from their superiors. She feels that as the Representative Ms. Pengov could bring that back to the Board and then if in a period of time there is still being kept in the dark, then the Board needs to take some type of action. Ms. Pengov stated that she thinks a lot of it is when you take away the old and put in the new, a lot of people have troubl;e adjusting to it. Ms. Grasberger stated that even the Department Heads may not feel totally comfortable with explainging something they don't fully understand. Mr. Jones stated that there is so much information City that is kept under cover. It is not put out aren't aware of it. It is not concealed, but you have out and then ask somebody if this is right. around the and people to dig it Ms. Stevens stated that an employee came to her stating that she had been with the City for 2 1/2 years someone else was hired in a month and was hired at the same rate. Ms. Grasberger questioned if the entry level changed? Ms. Pengov state yes. Ms. Grasberger stated that this happened all the time. She questioned if you have the right to be upset if you were hired at X and accepted that and the new person was hired at Y and she accepts that. Does she have the right today to say .. But you hired me yesterday at X?" No she doen't. Ms. Pengov stated that she's been in many places where they say if you don't like it there's the door. Ms. Stevens stated that the employee stated that the City invested 2 1/2 years in her in training her. Ms. Pengov stated that the employee probably had to train the new person that came aboard. Mr. Jones asked if there was any other discussion. Ms. Pengov moved that the meeting be adjourned. Ms. Grasberger seconded. Minutes respectically submitted by Lisa R. Miller, Secretary. o o CITY OF EDGEWATER MERIT BOARD MINUTES REGULAR MEETING WEDNESDAY, FEBRUARY 28, 1990 CONFERENCE ROOM, CITY HALL Chairman Harry Jones called to order Merit Board at 7:30 P.M., Wednesday, Conference Room of City Hall. a regular meeting of the February 28, 1990 in the ROLL CALL: CECE STEVENS KAREN GRASBERGER SONDRA MEAGER-PENGOV J1ARV IN Ol-lENS HARRY JONES~ CHAIRMAN PRESENT PRESENT PRESENT ABSENT (RESIGNED) PRESENT Also present was Lisa Miller~ Secretary. APPROVAL OF MINUTES: Ms. Stevens made a motion to approve the minutes for the Special Meeting of the Merit Board Tuesday~ January 16~ 1990~ with the following corrections submitted by Mr. Jones. In the first line of the first paragraph the lo.Jords "griev.ance hear i ng" lo.Jere to be added so that the sentence was to read - Mr. Jones requested the witnesses for Mr. Chamberlin's arievance hearina be swan, in. In paragraph four (4)~ should be changed to...the evaluation had been changed from a score of 89 points in October to 84 points in November and felt that it could have been unfair. Ms. Pengov seconded the motion. Motion passed 4-0. Ms. Grasberger made a motion to accept the minutes of the Regular Meeting of the Met-it Boat-d Wednesday, Januat-y 24, 1990. Seconded by Ms. Stevens. Motion passed 4-0. UNFINISHED BUSINESS: Letter from City Attorney Re: HearinQs. The SwearinQ ]n At Grievance The Board discussed the letter to Mr. Jones from the City Attorney concerning the swearing in of witnesses at grievance hearings. This was the decision that was requested by Mr. Johnson at a previous grievance hearing. The letter stated that a witness who testified as to matters of fact which are related to the issue before the Board~ should testify under oath and his testimony must be based on his o~ln personal J>:nol-Iledge and observations~ not on rumor. The letter also stated that whether a witness testifies under oath or not~ directly affects the credibility of the individual and the weight to be given to his/her testimony by the Board. (See attached copy of the letter.) The Board discussed the difference between participants and witnesses. . ' o o Mr. Jones noted that in his letter Mr. Alvarez stated that if a person is giving information they are a witness. The Board discussed the decision and how it pertained to Mr. Chamberlin's grievance hearing. Mr. Jones discussed with the Boal-d the poss ib i 1 i ty of a l-eheal- i ng of the Cha.mbet-l in gl- iev.ance. The genel-al consensus of the Boal-d was tha.t a l-ehearing ,.,.3.'5 unnecessal-y as theil- decision would l-emain the same. t1t-. Jones questioned whether any of the Merit Board Members were influenced by the unsworn statements made by Mr. Johnson, Mr. Overstreet, or Mr. Tenney. The members stated that they were not. They would have voted the same. Mr. Jones stated that he wants the Board to consider changing the Bylaws to reflect the decision of the City Attorney that witnesses in grievance hearings be sworn in. After some discussion of the addition to the Bylaws concerning the letter from the City Attorney, Mr. Jones stated that he would like to table it and look at it at the next meeting. Ms. Pengov moved th~t the letter as far as swearing in until the next meeting. Ms. 1. Ms. Grasberger voted NO. discuss ion 011 the C i t',~ At tonle'f · ':0 at gl-ievance heal-ing':o be tabled Stevens seconded. Motion passed 3- NEW BUSINESS: Ms. Stevens made a Ms. Pengov seconded. motion that they discuss Motion passed 4-0. the Sunshine Law. Each of the Board members had received a copy of the excerpts of the Sunshine Manual in the mail. They discussed how the Sunshine Law affects them as a Board. DISCUSSION ITEMS/CORRESPONDENCE: Mr. Jones stated they have a resignation from Marvin Owens. Ms. Stevens made a accepted with thanks. o. motion that Marvin Owen's resignation be Ms. Grasberger seconded. Motion passed 4- Mr. Jones stated that we needed to prepare a memo to the Mayor and Council sending a copy of the letter and requesting that a replacement be appointed as soon as possible. The Board Discussed the feedback from the City Employees to the Cody and Associates Study. Ms. Grasberger stated that Ms. Pengov~ in her position as representative for the employees~ was in a position to hear whether or not the employees were feeling more comfortable with the Cody Study and she could bring that information bacJ~ to the Board. Mr. Jones asked if there was any other discussion. Ms. Pengov moved that the meeting be adjourned. seconded. Motion carried. Ms. Gr .3sber ger Meeting adjourned at 8:38 P.M. Minutes respectfully submitted by Lisa R. Miller Secretary. Page 2 <J o ~ /\ . .~^ 'J~ ~. CITY OF EDGEWATER MERIT BOARD MINUTES REGULAR MEETING WEDNESDAY, FEBRUARY 28, 1990 CONFERENCE ROOM, CITY HALL Chairman Harry Jones called to order Merit Board at 7:30 P.M., Wednesday, Conference Room of City Hall. a regular meeting of the February 28, 1990 in the ROLL CALL: CECE STEVENS KAREN GRASBERGER SONDRA MEAGER-PENGOV MARVIN OWENS HARRY JONES, CHAIRMAN PRESENT PRESENT PRESENT ABSENT (RESIGNED) PRESENT Also present was Lisa Miller, Secretary. APPROVAL OF MINUTES: Ms. Stevens made a motion to approve the minutes for the Special Meeting of the Merit Board Tuesday, January 16, 1990, with the following corrections submitted by Mr. Jones. In the first line of the first paragraph the words "grievance hearing" I",ere to be added so that the sentence was to read - Mr. Jones requested the witnesses for Mr. Chamberlin's Qrievance hearing be swonl in. In paragr h four ( , should be ~ O.~ changed to. .the evaluation had ~~ been changed f m a score of 89 -~ points in Oct ~o 84 points in November an fel that it could have been u fai,-. Ms. Pengov seconded the motion. Motion passed 4-0. Ms. Grasberger made a motion to accept the minutes of the Regular Meeting of the Merit Board Wednesday, January 24, 1990. Seconded by Ms. Stevens. Motion passed 4-0. UNFINISHED BUSINESS: Letter from City Attorney Re: The Swearinq In At Grievance Hearinqs. The Board discussed the letter to Mr. Jones from the City Attorney concerning the swearing in of witnesses at grievance hearings. This was the decision that was requested by Mr. Johnson at a previous grievance hearing. The letter stated that a witness who testified as to matters of fact which are related to the issue before the Board, should testify under oath and his testimony must be based on his own personal knowledge and observations, not on rumor. The letter also stated that whether a witness testifies under oath or not, directly affects the credibility of the individual and the weight to be given to his/her testimony by the Board. (See attached. copy of the letter.) The Board discussed the difference between participants and I",i tnesses. '\ (J Q Mr. Jones noted that in his letter Mr. Alvarez stated that if a person is giving information they are a witness. The Board discussed the decision and how it pertained to Mr. Chamberlin's grievance hearing. Mr. Jones discussed with the Board the possibility of a rehearing of the Chamberlin grievance. The general consensus of the Board was that a rehearing was unnecessary as their decision would remain the same. Mr. Jones questioned whether any of the Merit Board Members were influenced by the unsworn statements made by Mr. Johnson, Mr. Overstreet, or Mr. Tenney. The members stated that they were not. They would have voted the same. Mr. Jones stated that he wants the Board to consider changing the Bylaws to reflect the decision of the City Attorney that witnesses in grievance hearings be sworn in. After some discussion of the addition to the Bylaws concerning the letter from the City Attorney, Mr. Jones stated that he would like to table it and look at it at the next meeting. Ms. Pengov moved that the letter as far as swearing in until the next meeting. Ms. 1. Ms. Grasberger voted NO. discussion on the City Attorney's at grievance hearings be tabled Stevens seconded. Motion passed 3- NEW BUSINESS: Ms. Stevens made a Ms. Pengov seconded. motion that they discuss Motion passed 4-0. the Sunshine Law. Each of the Board members had received a copy of the excerpts of the Sunshine Manual in the mail. They discussed how the Sunshine Law affects them as a Board. DISCUSSION ITEMS/CORRESPONDENCE: Mr. Jones stated they have a resignation from Marvin Owens. Ms. Stevens made a accepted with thanks. O. motion that Marvin Owen's resignation be Ms. Grasberger seconded. Motion passed 4- Mr. Jones stated that we needed to prepare a memo to the Mayor and Council sending a copy of the letter and requesting that a replacement be appointed as soon as possible. The Board Discussed the feedback from the City Employees to the Cody and Associates Study. Ms. Grasberger stated that Ms. Pengov, In her position as representative for the employees, was in a position to hear whether or not the employees were feeling more comfortable with the Cody Study and she could bring that information back to the Board. Mr. Jones asked if there was any other discussion. Ms. Pengov moved that the meeting be adjourned. seconded. Motion carried. ""s. Gr asberger Meeting adjourned at 8:38 P.M. Minutes respectfully submitted by Lisa R. Miller Secretary. Page 2 . 1 u (.) CITY OF EDGEWATER 104 N. RIVERSIDE DRIVE PO. Box 100 - Edgewater, Florida 32132-0100 (904) 428-3245 SunCom 371-7005 MEMO TO: HARRY JONES, CHAIRMAN MERIT BOARD /:'7/7} / ATTORNEY J~ FROM: JOSE B. ALVAREZ, CITY DATE: FEBRUARY 19, 1990 RE: SWEARING IN AT GRIEVANCE HEARINGS Section 39A of the City Charter provides inter alia the authority of the Merit Board to hear grievance procedures. If an aggrieved employee does not choose the grievance procedure in the labor agreement, he/she may request the Merit Board to hear the griev- ance. However, he must select one of the two remedies. See Sec- tion 447.401, Florida Statutes, attached hereto. In Bass v. Department of Transportation, 516 So. 2d 972 the Court held: "Employee, who had previously sought relief from discipline using grievance procedure established by collective bargaining agreement, could not also prosecute civil service appeal." Whichever avenue is selected, a hearing involving a grievance is a fact-finding hearing in the nature of a quasi judicial proceed- ing. "When notice and a hearing are required and the judgment of board is contingent on the showing made at the hearing, then its judgment becomes judicial or quasi judicial." DeGroot v. Sheffield, 95 So. 2s 912. Quasi judicial decisions are reviewable by the Courts to insure that the board below afforded the essential requirements of law and the decision was based upon competent substantial evidence. The Court will look to see if the parties to the hearing were given reasonable notice of the hearing, an opportunity to present their respective cases through witnesses and other evidence and the opportunity to ask questions and that the evidence presented was commpetent and substantial. . . u ~ The proceedings, of course, do not have the formalities of a Court nor are they as strict. However, certain basic due process proceedings must be afforded and the evidence presented to the Board must be competent and substantial. For instance, a witness who testifies as to matters of fact which are related to the issue before the Board, should testify under oath and his testimony must be based on his own personal knowledge and observations, not on rumor. If these minimum standards are not adhered to, a review in Court very probably will find that the Board's decision was not based on competent, substantial evidence. Whether a witness testifies under oath or not, directly affects the credibility of the individual and the weight to be given to his/her testimony by the Board. Therefore, the better practice is that all those individuals who are going to be witnesses should all be placed under oath before testifying. In your memo, you used the word "participants" at a hearing. In every hearing there are participants who are not witnesses. The best example are attorneys or other representatives who would participate in the proceedings, but do not give testimony as to the facts. That is why if an attorney wishes to testify, he must step down and become a witness. The same could apply to a Union representative who might be at the hearing, assisting the employee and might make a statement on the procedures or may ask a question of a witness, but will not be testifying. So you must first define the role of all participants and those who are going to be witnesses shall testify under oath or affirmation. In summary, when a Board of Adjustments hears a grievance, it is acting in a quasi judicial capacity. The significance is that if an Appeal is taken to the Circuit Court, the Court is going to look at the proceedings and make sure that the decision of the Board followed basic procedures of due process; the essential requirements of law and that the findings are based on competent substantial evidence. Otherwise the decision is voidable. Finally, the testimony of a witness should be under oath and based on his own personal knowledge, and not hearsay. cc: Elly Johnson, City Manager ~.~f'::"~ e' __J"S. 19~~1 ;ti~~s within the orga. ';ti lcerrllng organization ,.~~,~t! 1 the employees and ;';,,~'t~;: )f a traditional, wcrk.;:':~:' I:ntlonshir~ " _~ Ie pubii( ')r;;pioyer to .' pIcHi tCli'S ,JS t~l': C(Hnr.lls. :hed or approved for' whlt::h inciuClCs hoth empIOVI~(';S ;,;n;ess a ::~~::~'::~::~::::;:: ~ I , .;t,'i ~' f employees which no' :.;'';-: '. by the certlfl~~ bar:-:{~, nmisslon a petition to ;;t~:;, hall be accompanie<f:;:~1.r~'~ 2ast 30 percent of the<;$: that such employees,;~:'" j for purposes of cO~,~~TI )argaining agent. Th~ /;:(. 'Qvernea by the proVl~ :,;:" 'petitions for certifica: "}', Janization having su'~..,f~r Jemployee signatures,:,;" Cion, intimidation, or~{( : invalid shall be given' ::~---: md challenge the 5:g:.;/-;,::, I. The commission or.::.~,;; . I investigate the ~e:i?'f.r', the commission flncs:,,:2::': v dismiss the petilion;:-,;;I ;etition is sufficient, i,~~::-/~, {;;";'(l~" and determine whic~~;;~'; d and entitled to votc::<-,. f SSlon, ,;:~,{,,::' I ~r or employers, ":"",' el' ballot. Ihe co,1 o~:::<, 'y I h e p"I;", ""llt" ';, · "'I Wi,=!. The commls;/t.,', 1 election may be en.';'.:;-. , of this part.,....: ; es voting in such elec"',,: 1 of representation .~:. f Ie certlfiea:iun 0.1 "': ~ b rg"lC1'~~ ~ )xclusive a a. ":,;; ~ ,. unit shall L i Irgammg. " 'f ::s voting in such ei:~:"'f 1uation of represen,.:: , ~nt, the certificatl~!1~';-' t exc!usive bar~a: ,,', 1 j! shall be retained ::.. i ~'., . ,;,:-::'" ': :,,:.,",.;-,.>" . 'f '., ", ~. ...~.. ,". ,".. '...~ _'-.';'~-.:t'....'":'::..'''' ",", . _ '....'--'...........~~ ~~.~llil...".b..'...." __ F.S. 1987 (.) LABOR ORGANIZATiONS . i . 447.309 Col/ective bargaining; approval or rejec- lion.- (1) After an employee organization has been certi. tied pursuant to the provisions of this part, the bargain- ;ng agent for the orgClnization and the c'w~t executive of. ficer ;)j the appropriate public employer or employers, ;olnrly, shall bargain collectively in the (1eterminntion of ,he wdges, hours, and terms and conditions oj ernploy. me!1l ,Jf the public employees wittlln the bi1rgnmmg unll. The cn/af executive officer or hiS representative and the oarg;;lIning agent or ;ts representative shall meet at rea. sonable times and bargain in good faith, :n conducting necotiatlons with the bargaining agent, the chief execu. il\'E officer or hiS representative shall consult with, and attemot 10 represent the views of, the iegisiative body a: the puolic employer, Any collective bargaining agree, ment reached by the negotiators shall be reduced to writing, and such agreement shall be signed by the chief executive officer and the bargaining agent, Any agree- ment Signed by the chief executive officer and the bar. gaining agent shall not be binding on the public employ- er until such agreement has been raMed by the public employer and by public employees who are members of the bargaining unit, subject to the provisions of subsec. tlons (2) and (3), However, with respect to statewide bar- gaining units, any agreement signed by the Governor and the bargaining agent for such a unit shall not be binding until approved by the public employees who are members of the bargaining unit, subject to the provi. sions of subsections (2) and (3). (2) Upon execution of the collective bargaining agreement, the chief executive shall. in his annual bUdg- .:1 request or by other appropriate means, request the regislative body to appropriate such amounts as shall be sufficier.t to fund the provIsions of the collective bargain' Ing agreement. If less than the requested amount is ap- propriated, the colleCllve bargaining agreement shall be administered by the chief executive officer on the basis of the amounts appropriated by the legislative body, The :ai/ure of the legislative body to appropriate funds suffi- Cient to fund the collective bargaining agreement shall ~Ol constitute, or be evidence of, any unfair labor prac- lice, (3) . If any provision of a collective bargaining agree- 'nent IS In conflict with any law, ordinance, rule, or regu. :dt/on Over which the chief executive officer has no .irner.datory power, the chief executive officer shali sub. 'nIt to the appropriate governmental body haVing "mendatory power a proposed amendment to such law, :rClnance, rule, or regulation, Unless and until such :rnendment is enacted or adopted and becomes effec- ",.e the conflicting provision of the collective bargaining .';reement shall not become effective, ,~~) It the agreement is not ratified by the pUblic em. ""ler Or IS not approved by a majority vote of employ- ~s Vctlng in !he unit, in aCcordance with orocedures ~)COled by the commission, the agreement '0hall be re- ..::~t:d to the chief executive officer and the Amployee :~n/2atlon for further negotiations, <'0"' Any collective bargaining agreement shall not -"I)" f " el!'''::: ora term of existence of more than 3 fears and -~ ' -ontain all of the terms and conditions at employ. '~r a' , . 't,le employees in the bargaining ':niT dunng 1351 o ._-."-~ "_.___ _....A_~....~___ ,,;,,--.:- 'YI.wwa:~"l.E,:~;: Ch. 447 SllCh term except those terms and conditions provided fo: ir. applicable merit and clvli servil;e rules and regula- tions, Hi.torv-~:.:.Ch -~-iV~ ~ ;-l..~~~ :7.,:,..~:::. ':.1...1- fl'".,.'"i 447.401 Grievance procedures.-Each ,)u/)!/r; em. ;.J!oyer and tJargaininn agef"i :in,,!! negeiiale a grievance Qrocedure 10 be USed :01 lilt; :;ctllt~ment ,11 ,j/:;plltes t:e. ;\~'Gt~r: 'Hnployer i1nd ernpioy'?e Of group ,)t employees, In\nivlng lhe Interpret~tion Of dppiicalion of 3 t::ollectJve barqalrllng agleement. Sucr: gnt~V2nce procedure shall have as Its terrnlrlal slep a f,nill and binding ClspOSition by an Impartial neutral. muiuaily selected by rtle parties: howevor, when the issue ilncj[.; appeal :s an a/l'Jgation of al)use or neglect by an l!'TIDii)'yee under s. 415,103 or S 415,504, the grievance mCl\ f1Gl be decided until the confirmed report of abuse Of neglect has been upheld pursuant to the procec!ures for appe:il in so:., 4 ~ 5. i OJ ;:;nd 415,504, However, an arbiter or ether neutral shall not have the power to add to, subtract from, mOdify, or alter the terms of a collective bargaining agreemen: If an em- ployee organization is certified 3S the bargainIng agent of a unit, the grievance procedure then 111 existence may be the subject of collective bargaining, ana any agree- ment whiCh IS reaChed shall supersude the previously existing procedure ,.~II pubhc employees_shall ha"'e'lhe~ right to a lair and equitable grievance procedure; admin'. i Istered without regard to.membership"or'nonmember:'_; ship in any. organization. except !hat certlfiea employee- organizations snaJJ o:!9t_ be. required. to::Dfocess.:gnev_ ances tor empjoyee~...vll0 are.notmembersol'lheorga,.. nizattpn. f\' career-sarlilce: emP10yee..,sh!ll!,.h'}.ve""tj1~_..e" ' tlon of UllllZlng, the c/llli;servIC8^8PpeafnrOCAdure"ona_ grievance procedure establlshedundel-this sectiofl. but. SUch employee cannm use hoth<a'civii ser\lic~aopeal and a grievance procedure ..,. Hlltory.-s 3. en 7-1-:00; ~ 1 en i':-J7~ <; 'o! en fl-~~4:.' ~ 38 :n );1:'-238_ 447.403 Resolution of impasses.- (1) If, after a reasonable periOd of negollation con- cerning the terms and cond:IIO!lS of employment to be incorporated in a collective bilr\;a:nIilQ agrpement. a dis- pute exists between A puhlic employer ana a bargaining agent, an impasse shall be aeemcd te have occurred when one of the parties so declare~ in writing to the oth. er party and to the COil mission When 'Jr1 :m;:'asse oc. curs, the public eOlplofer ,), tne 03rgolnl119 "'gent. or both parties acting jointly, ma~/ appoint. or secure the appointment of, a mediator 'e 2~SISt in the resIJlution of the impasse, (2) If no mediator :s appe::ltc':.: 0: l1iJOr. the request of either pari", the CcmmisSlol, :or-i)'; nppOJnt ane submit all unresolvea issues to ii specie:! ''';aster acceptable to both parties !f the partIes are :,nilr.i(~ :0 aorce on the ao- pointment of a speCial master in.:: ::o'nrn~sslon shaH ap. point, in lIs diSCretion, a qu:.!liI,eo special master How, ever, if the parties agree !n wr:~ln:J TO ',vdlve lhr: appoint. ment of a speclat maSier the DarllC-s may procecc di" rectly to resolution of i;-,e ir:~P2SI':C I))' Ihe ;o:~9Isiallve bOdy pursuant to paracrClp/l :':\((;1 "<othlnc:n ihls see, tion precludes The p3/ :;es fr:Jn~ '.,:"n'J the ;;r:r'"r'~p:; ;)1 a mediator at i1n)' timfl rjur';;g ;"1r; c:>'ri,:t::: 0: l."oll(:Cll\;e bargalnlnq .. :.; ~. ." ;~l~h ":' ;;~;:~'~~,::~f~7~' . ~~".;~'::"'" '4 '<:...,:. .