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03-30-1992 - Special .... ...., CITY COUNCIL OF EDGEWATER SPECIAL MEETING MARCH 30, 1992 MINUTES CALL TO ORDER Mayor Tanya Wessler called the meeting to order at 3:00 p.m. in the Community Center for the purpose of addressing the Bill Finch appeal of the decision of the Merit Board regarding his termination from the Fire Department. ROLL CALL Mayor Tanya Wessler Councilman Kirk Jones Councilperson Louise Martin Councilperson NoraJane Gillespie Councilman Michael Hays City Attorney Krista Storey City Manager George McMahon City Clerk Susan Wadsworth Police Chief Lawrence Schumaker Present Present Present Present Present Present Present Excused Present Mayor Wessler stated Attorney Bill Hathaway would present his side and the City would present their side and then they will have questions and answers. Councilperson Gillespie stated she should make mention that Mr. Finch and his wife came to her house. When he advised her of the problem, she contacted the City Attorney and sent him right down to City Hall. At this time, Attorney Bill Hathaway gave his presentation. When Attorney Bill Hathaway finished his presentation, Chief Vola gave his presentation. Mayor Wessler asked if anyone had questions for Mr. Hathaway or Mr. Vola. Councilperson Gillespie asked Mr. Hathaway if he requested live witnesses at the Merit Board hearing. Mr. Hathaway stated no, they did not, they requested Bill Finch attend. Councilman Hays asked for Ms. Storey's account of the situation. City Attorney Storey stated she did not agree with his contention regarding the process that was utilized at the hearing. The situation at the Merit Board hearing was an appeal. She does not believe that it is legally appropriate to challenge the fact that simply because the City did not hear first hand testimony of the witnesses that therefore Mr. Finch was deprived of any due process rights. From a legal perspective the Merit Board process is informal. The rules of evidence do not apply. The lack of first hand testimony could be weighed by the Merit Board and Council if you have written documentation in front of you that can be utilized. Councilman Jones stated it was mentioned that Mr. Finch's due process was not in jeopardy because of the way that we handled it. His opinion is any time the city enacts any type of firing the burden of truth is on our hands to prove our case. He expressed his dissatisfaction with the way this case was handled and stated it is of the utmost importance that the City present the best case we can. Now, we as the Council, have to look at the merits of the case. If it was handled in a different fashion, maybe the Merit Board could have cleaned it up once and for all and Council would not be in this position. -.-. ...... Councilperson Martin stated,in her opinion, we have to determine the ability of a person to work within a team. It is very important that all members concerned work as a team. One person not doing their share can put a whole team off its mark. If one person can not work in harmony, then he or she is not working as a team member. Not carrying your own load becomes a source of aggravation for other members. It becomes a dangerous element when in the midst of performing their duties. Councilperson Gillespie stated she did not have Mr. Finch's 1991 evaluation. In Mr. Finch's first evaluation he received a five for things he was later reprimanded for. Lieutenant Carson was the training officer to correct the problem, the investigating officer and the first paid officer on the scene following the incident. He was also at this time teaching crisis counseling for the death of the two firefighters who died in New Smyrna. This put a lot of work on him. Councilman Hays stated he thought he had a page missing and questioned Chief Vola if he did. Chief Vola stated yes there was a missing page. Councilman Hays stated he would like to get into it somewhat page by page because questions came up as he went through the package. Councilman Hays presented questions to Chief Vola which he answered. Councilman Jones questioned Chief Vola at this time. He asked if Mr. McMahon questioned every witness. He stated he would way of knowing that. Councilman Hays stated he asked Mr. McMahon that question assured him he did. have no . i .~~If "PIu.; ~. and he Councilman Jones asked Mr. McMahon if he interviewed everyone involved. Mr. McMahon stated no, he did not. He stated he interviewed the critical people involved. Mayor Wessler then questioned Chief Vola. She stated, in her opinion, he was antagonized by the dirty dishes in his boots. Councilperson Martin then questioned Chief Vola. Councilman Jones questioned Chief Vola again. Mayor Wessler questioned Chief Vola again. Councilperson Gillespie then questioned Chief Vola. City Manager McMahon stated he interviewed Chief Vola, Lieutenant Carson, and Mrs. Cousins. Attorney Hathaway asked to have a rebuttal which he was granted by the Council. Councilman Hays then presented more questions. City Attorney Storey stated, if you are serving in an appellant capacity and you have a record before you that isn't clear, there may be people you have to question. Those who are here and who participated in the Merit Board hearing, who you can question, are Chief Vola and Mr. Finch. Mayor Wessler called for a recess at 4:17 p.m. The meeting resumed at 4:25 p.m. -2- Council/Merit Board Meeting March 30, 1992 -- ~ councilman Hays asked Mr. McMahon who he interviewed personally that was involved in or witnessed this? Mr. McMahon answered he interviewed Chief Vola, Peggy Cousins, George Barlow, Mr. Finch and Lt. Carson. At this time Attorney Hathaway was allowed to give his rebuttal. His first point was to take exception to the ruling made by City Attorney storey's assessment of due process. He thinks if someone is terminated, they are entitled to a due process termination hearing; evidence must be submitted to uphold the termination. His second point referred to the team work which was brought up by Councilperson Martin. He does not feel there has been sufficient evidence given to support insubordination in this case, which is the only offense that warrants termination. Progressive discipline was raised by Councilperson Gillespie; the documentation does not prove progressive discipline because he has never been suspended on an independent action. Mr. Finch was given the ultimatum of either resigning or being fired. Mr. McMahon stated he did offer Mr. Finch either of the openings the City had at the time; Animal Control Officer or the opening at the Wastewater Plant. Attorney Hathaway closed in saying that when the City takes someone's livelihood away from them, it should be done in the appropriate fashion. It is the contention that this was not done appropriately. The remedy available is to reinstate Mr. Finch with the understanding that he is not entitled to the benefits lost during the intervening period, which was the period of suspension. Mr. Finch has a petition signed by approximately 150 residents supporting his position. The request is that he be reinstated, considering the intervening six months as a suspension. City Attorney storey advised the Council about the relevancy of the petition regarding the outcome of this matter. It was determined that the petition was not submitted to the Merit Board and therefore should not be submitted here. Councilman Jones spoke of his concern regarding the mismanagement of this case, the conditions the department will be working under if he is reinstated, and the problem the Council has by not being able to solicit testimony from certain people involved. City Attorney storey explained if Council does not feel the case presented was sufficient to make a decision, they should take that into consideration. Everyone has had the opportunity to make their case and the proceedings have been handled fairly up to this point. Bill Finch, 1703 Lime Tree Drive, answered questions from Councilman Hays referring to the position he will now be in, if his job is restored to him. Whether he will, for example, be able to work as a team with these people? He stated he will do everything he can to make this a smooth transition, he will work hard to have a good working relationship. Chief Vola answered questions also from Councilman Hays regarding what he can do to make sure these people will have a good working relationship and provide the fire and medical safety to the com- munity. He stated, in his professional opinion, the problem is going to be with the co-workers and the probabilities are not in his favor. -3- Council/Merit Board Meeting March 30, 1992 ,..., ...., Mayor Wessler stated she does not feel what Mr. Finch did was right, however, she does not feel what the other men did was right either. This is very childish, the firefighters should act in a professional manner. She pointed out that Chief Vola will be in charge of seeing to it they all act professionally, should Mr. Finch get his job back. Councilman Hays moved to reinstate Mr. Finch, with loss of benefits to date, and to begin another six month period of probation. Councilperson Gillespie seconded the motion. Councilman Hays stated in the future, it is management's responsibility to document, Mr. McMahon needs to put something in process administratively regarding this. Neither side is being condoned here. Councilman Jones stated Mr. Finch needs to walk a tight line and know he is being watched during this probationary period. He went on to explain his understanding of this situation and stressed that these men's lives depend on each other and they have to constantly work on their relationships. City Attorney Storey reminded Council that, pursuant to the Charter, it takes a unanimous decision by the Council to over- ride the decision of the Merit Board, which was to uphold the termination. Upon roll call on the motion, the motion DIED 4-1. Council- person Martin voting NO. Attorney Hathaway asked Councilperson Martin to reconsider her vote. Councilperson Martin asked if this is legal? City Attorney Storey stated it is legal to have another motion made to reconsider by the prevailing side. Councilperson Gillespie moved to reconsider. Councilman Hays seconded the motion. Upon roll call vote the motion CARRIED 5-0. Councilperson Martin stated she is still concerned about the team spirit that obviously does not exist here. Firefighting has to be a team effort. Mayor Wessler restated the probationary period at which time he will not be able to sway; any deviation and he will be fired. This process will not be necessary again at that point. Councilman Hays explained the reason he made the motion the way he did with the probationary period, is he feels although Mr. Finch's actions were not proper, he was provoked and that the other people involved were not dealt with as strictly as they should have been dealt with. They were not acting professionally. Councilperson Gillespie stated she felt the City should have put together a more professional presentation. Councilman Hays restated the same motion he previously made. Councilperson Gillespie seconded the motion. Upon roll call the motion CARRIED 5-0. councilperson Martin stated she does not want to put the Fire Department down, there has been a lot or work done on this but she is in the minority, so she votes Yes. -4- Council/Merit Board Meeting March 30, 1992 --- ...." ADJOURNMENT Councilman Hays moved to adjourn. Councilman Jones seconded the motion. Meeting adjourned, 4:55 p.m. Minutes submitted by: Lisa Kruckmeyer -5- Council/Merit Board Meeting March 30, 1992