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02-29-80SpMtg FEBRUARY 29, 1980 A special meeting of the City Council of the City of Delray Beach, Florida, was held in the Council Chambers at 12:10 P.M., Friday, February 29, 1980, with Vice-Mayor James H. Scheifley, presiding and City Manager J. Eldon Mariott, City Attorney Roger Saberson, and Council members Malcolm T. Bird, Charlotte G. Durante, and Willard V. Young, present. Mayor Weekes was absent. Vice-Mayor Scheifley announced that this meeting has been called for the purpose of considering amendments to the Civil Service Act. (~) The City Attorney reported that he and Mr. Shandy met with the Civil Service Board to go through all of the proposed changes in the bill that was submitted to the local Legislative Delegation. They had a four hour meeting and he felt that it was a good meeting and that they had cooperation on both sides. Since then they have prepared an amend- ment incorporating all the items that were agreed to. There was one reservation that the Civil Service Board had, which they requested that he bring before Council; it is the question of the Civil Service Board hearing demotions. The current Act provides that the Civil Service Board will hear demotions only if they are further than the next lowest job category. The Board had requested permission to hear appeals of all demotions. He was inclined to recommend to Council to go ahead on this basis; however, just before the meeting he spoke to Dr. Mitchell, Chair- man of the Civil Service Board, and he understands now that there may be a problem on one part that pertains to the hearing officer. The Board, at the meeting, was against the hearing officer being able to enter a final order in place of the Board and they were willing to have a hear- ing officer for discharge cases, providing that the Board would have the authority to accept, reject or modify the findings of the hearing offi- cer. The City Attorney pointed out the change that was made to this effect on page 14, lines 20-30 and stated that these provisions are as provided in the State Statute dealing with administrative hearings. Dr. Mitchell stated that having gone over the proposed changes to the Civil Service Act, he still has a problem. If they have to justify their findings opposed to the findings of the hearing offi- cer, he thinks that this puts an extra burden on the employee and he would have to oppose this item; the concept of a hearing officer. He doesn't know how the other Board members feel about this, but he be- lieves that they have the same concerns. In responSe to a question from Mrs. Durante, he stated that there are too many factors in justifica- tion. It is too much to be left to one person, in his opinion. The City Attorney stated that if the Board wanted to reject what the hearing officer had done, it wouldn't be necessary for them to take additional testimony. What they would do is the hearing officer would give them the record, which would be typed testimony, and then it would be up to the Board tb review that. If upon reviewing it they didn't agree with the hearing officer, then they would have the author- ity to accept, reject or modify his recommended order. He had thought that this concept would be acceptable. Upon question by Mr. Bird, Dr. Mitchell stated that this is his personal position. If the Board met and if the majority of the Board felt differently, that consensus would prevail. The City Manager suggested polling the Board members that are here. Dr. Mitchell stated that Lt. Maginley and Mr. Dennis are here and that would be a quorum. Mr. Dennis, member of the Civil Service Board, stated that at their meeting the other night they discussed the hearing officer and it was his understanding that they would have the hearing officer to conduct the hearing itself; however, he does not recall where the hear- ing officer would render any kind of opinion but that the hearing offi- cer would be the legal guide throughout the complete hearing serving as counsel. The City Attorney gave him the feeling that this is what they would have. He is in favor of the hearing officer to conduct the meet- ing; he thinks that the concept is great. Lt. Maginley, member of the Civil Service Board, stated that he is opposed to the hearing officer on several grounds. If they are going to have a hearing officer, he sees no need for having elections for the elected members of the Board; the City could go ahead and just appoint all the members of the Board. He has seen from past experience that they do need a legal counsel and he would be in agreement to having a legal counsel when the Board is hearing employee's appeals. This con- cept of having a hearing officer is taking away all the authority of the Board and he agrees with Dr. Mitchell. Mr. Bird asked if there were a counsel to the Board as opposed to a hearing officer, would the Board be willing to be bound by his findings of law with regard to admissability of evidence, qualifica- tions to sit, etc., or would the Board retain the right to reject legal advice as well. Lt. Maginley replied that if the Board had a choice jointly with the City Council to select legal counsel for their hear- ings, then it stands to reason that they would have to follow the legal advice that the counsel gives them. The Board should be able to hear these appeals with legal counsel. He cannot agree with selecting an attorney to hear all the cases and then submit to the Board his recom- mendations. They are taking away the 13th amendment. If they take away the 13th amendment, then they don't need a Civil Service Board; what they need is a couple of employees to give examinations and keep a running list of eligibilities; that's all the authority that the Board would have. Upon question by Mr. Bird, Lt. Maginley replied that the 13th amendment gave the Board the authority to investigate, or to hear appeals. If Council deletes this, they are actually taking away the fundamental authority of the Board. Upon question from Council, Lt. Maginley replied that he is referring to the 13th amendment of the Civil Service Act. Mr. Bird stated that he doesn't see how the Civil Service Board will be giving up its authority by agreeing to a hearing officer; they should have a complete record to review and the authority to change anything which they see as being incorrect. The City Attorney stated for clarification that the Board's existing power to hear discharges does not come from Section 13 of the Civil Service Act. Section 13 is the provision that deals with the Board's initiative to conduct investigations which is being deleted under this Act but it does not take away the authority to review dis- charges. If they delete the hearing officer concept in total, and if they still delete Section 13, the Board will still retain the authority to hear discharges. Mrs. Durante stated that as Council understood the concept of a hearing officer, it was not taking away any power or authority from the Board; it was relieving the Board of a tedious duty by having a hearing officer gather all of that information and rendering his opinion to the Board. She doesn't see what the problem is. The Board can still reject the hearing officer's opinion. Lt. Maginley stated that if they have to go over the find- ings and reports of the hearing officer and study them and then come up with findings as to whether they accept or reject the recommendations, to him that seems like doing the same work twice. He feels that the Board should have the right to hear appeals with counsel and not have just one person listen to all the evidence, decide the way he feels it should go and then hand that decision over to the Board. In response to a question from Lt. Maginley as to what would happen if the Board voted to overrule the recommendations of the hearing officer, the City Attorney stated that the Board could reject or modify his recommendations if they went through the record and concluded that he was wrong; that there was a justifiable reason to reject what the man had done. Upon question from Mr. Scheifley, Mr. Rowe stated that he agreed with the concept of a hearing office~. Mr. Scheifley stated that when this meeting was called, it was his understanding that the purpose of the meeting was to consider this document which he has in his hand. It was also his understanding that this document was a result of the - 2 - 2/29/80~ meeting between the Civil Service Board and the City Attorney's office. It's obvious at this point that that is not the case. Dr. Mitchell and Lt. Maginley object to the concept of a hearing officer and Mr. Dennis is sort of in-between. So they've gotten to the point where they are not discussing the document in front of them. He would entertain a motion to adjourn the meeting. The City Attorney stated that there is a lot more that he would like to discuss with Council before they adjourn the meeting. He would like to go through the document and point out to Council what else has been modified from the revision that they previously got, and he would like to go ahead and have that submitted to the Delegation. In regard to the reduction in terms from 4 years to 2 years, the Civil Service Board was in agreement with that providing that it did not apply to existing appointed members. The provision of the third alternate to the Civil Service Board and also the additional stipulation that an em- ployee sitting on the Board could not hear an appeal from an employee of the same department was not agreed to by the Civil Service Board. The power of the Board to make investigations has been deleted; that was deleted in the original draft and is deleted in the most recent revision which the Board has ageed to. There has been an amendment to the lang- uage concerning the Board's ability to make reviews to see that the Act is being enforced and to make reports to the City Manager. There is also a section that was inserted in the original draft that required an employee who had been discharged to seek other employment whether or not it was of the type from which he was discharged and that his failure to seek employment and/or the amount of money he earned in that employment would be taken into account in determining the extent of any back pay award; that is not in the most recent revision; it was not agreed to by the Board. The provision concerning suspension of an employee charged with criminal conduct was agreed to by the Board. Other that that, all the other provisions that were inserted were approved by the Civil Service Board with the exception of the hearing officer and the Board also had a request to the City Council concerning demotions; that the jurisdiction of the Board be expanded to hear all demotions instead of only demotions that are farther than the next lowest job category. Coming into the meeting, he had been inclined to recommend expanding the jurisdiction to make it apply to all demotions; now, since it appears the hearing officer is not acceptable, he would not recommend that. Mr. Eubanks, member of the Civil Service Board, stated that he does not agree to the concept of having a hearing officer. Mr. Scheifley suggested that Council make a motion rejecting what was presented to them because there has been some change of opinion by the Civil Service Board. If that passes, he suggests they consider a motion that they go back to their original position as presented by Mr. Shandy to the Civil Service Board and which was unanimously agreed upon by Council. Dr. Mitchell stated that it is inaccurate to say that they cannot reach agreement because there are items upon which they have reached agreement. They have made every attempt to meet with the City Attorney prior to the presentation of this Act to the City Council. He is in favor of fair and equitable treatment to the City employees and supports the City Manager in his efforts to run the City efficiently. He hopes that they can reach an amenable conclusion to the proposals that are being made. He suggested that Council consider some sort of a compromise on the demotions or the ability to hear demotions in any form. The Board can hear suspensions but cannot hear demotions which are more grave than suspensions. Mr. Bird stated that with regard to demotions, the Board had no authority until an amendment to the Civil Service .Act a year ago. He recognizes the argument which Dr. Mitchell is putting forth as one which he used himself when he served on the Civil Service Board as to why they should hear demotions. At the same time, he wanted to point out that the Board had no authority to hear demotions at all until about a year ago. - 3 - 2/29/80 Dr. Mitchell stated that if a person is suspended for more than seven days, he has the right to a hearing, yet he has to be demoted more than one grade in order to get a hearing; that is not logical in his opinion. The City Attorney stated that he agrees that there are a lot of things that have been agreed to and the Civil Service Board had a long meeting the other day at his request and did go through each one of these. He would like City Council to authorize his office to redraft this; if the hearing officer concept is not acceptable, he would like to narrow it down as much as possible to those in which there is a consen- sus between the Board and the City Council. He would redraft it elimi- nating the hearing officer concept and he thinks everything else is agreeable as far as the Civil Service Board is concerned. The City Attorney asked if he deleted the hearing officer concept, would Dr. Mitchell feel comfortable indicating to the Delegation tonight that they are in agreement on the rest of the changes that have been made with the reservation that the Board has requested a change in the existing Act which is not in there. Dr. Mitchell replied that he would. Mrs. Durante stated that she is in favor of revising the Civil Service Act so that it's going to accomplish what it is supposed to accomplish, to be fair and equitable to the employee, but she keeps hearing the word "compromise" and she doesn't like it. She doesn't like to compromise on something that is right. When they discussed a hearing officer, they agreed that it was a very good concept.. The Civil Service Board needs legal counsel anyway and this would be a means of providing that. She hasn't really heard very good reasons why the members of the Board have changed their minds overnight about their stand on it. Mr. Scheifley stated that they discussed all this thoroughly and they came to a definite conclusion that they wanted a hearing offi- cer. Now they're talking about making changes. Council is the policy making body. They should face up to it and they should make the deci- sion. He suggested, again, that they vote on the proposal that's before them and reject it and then they should go back to the original position that they all agreed on. Mrs. Durante stated that if the City Attorney is going to present something to the Delegation, as adopted by Council, and if the Legislative Delegation is going to sit there and poll the Board about its position, she thinks that the Legislative Delegation is acting out of order. It is the Council who is supposed to present this to the Delegation. Dr. Mitchell apologized to Mrs. Durante if he used the term "compromise" as meaning something less than honorable. They are con- cerned as citizens of this City that the City's emPloyees are treated fairly. The changes that they have suggested are, in their opinion, reasonable and would not affect the Administration's ability to carry out its responsibilities, demotions in particular. If a person is promoted to a position higher than one that he's currently occupying on the basis of merit, then if you're going to demote that individual, there should be justification for such. The City Attorney stated that he would not like to see City Council take the posture of rejecting the entire bill. Even with the deletion of the hearing officer, there are a lot of changes in there that are good changes that are needed and are important to the City that have been agreed to between the City Council and the Civil Service Board. He thinks that those changes should be submitted to the Legis- lative Delegation and he thinks that if they are submitted, they would be approved. Just because one of the items would be left out, he doesn't think that it would be beneficial to the City to take the posi- tion of rejecting them all. He urged City Council to allow his office to revise this Bill to include those areas which are agreed to by the Civil Service Board and the City Council and delete the hearing officer concept and go ahead and submit the Bill for approval by the Legislative Delegation. The only question that would have to be resolved at this point is whether or not there is to be an amendment on demotions. If there is, that could be incorporated. If not, it could be left as is. - 4 - 2/29/80' Upon question by Mrs. Durante, the City A~torney stated further that when he proposed the hearing officer concept to City Coun- cil, he felt that it was an excellent idea for inclusion in the Act. He still feels that it is excellent to have that included in the Act but he also feels that even if that is not included in the Act that there are other amendments to it which have been agreed to by both the Council and the Civil Service Board that are beneficial to the City. If the City Council takes the position that they will not approve the submittal of this Bill without the hearing officer concept in it, they have removed all the beneficial amendments that are included in this Act. He would hate to lose everything because they lost one thing, even though the one thing was beneficial. Mr. Scheifley asked if they could extend the period of sus- pensions for which the Civil Service Board would review and change it from seven back to thirty days. The City Attorney stated that the price that will be paid in terms of the elimination of all those amendments because of this one item not being included in the Act is not the price that the City should pay in view of the amendments that have been agreed to, to this point. He would rather have the amendments that have been agreed to than lose them all for the virtue of insisting upon the hearing officer. Lt. Maginley stated that he cannot recall where anyone was promoted two grades at one time. If employees are promoted just one grade at a time, why is it that they have to be demoted two grades before they can have a grievance hearing. The City Manager stated that as he understands it the City Attorney is saying that if the recommendation of this Council goes to the Legislative Delegation without the support of the members of the Civil Service Board, the Legislative Delegation is not going to approve it and they're not going to get anything. If that is what he is saying, then it is certainly a miscarriage of justice for people elected to represent this district in the State Legislature to sit there and follow the advice of others rather than the advice of the elected representa- tives of the City of Delray Beach. There are only five people that are elected to represent the City of Delray Beach and those are the members of the City Council; that means the entire City and the entire City employee organization. Members of any State Legislative Delegation would have to stoop pretty low to bypass the unanimous recommendation of the City's elected representatives in favor of some recommendation of members of a Board appointed by the City Council. The City Manager further stated that prior to the meeting today, he was opposed to passage of the document as it then existed. He did say that he would keep his mind open during the meeting. He thinks that it would be intolerable to further consider favorable passage of it with the removal of the hearing officer concept. He was against the passage of this document even before that came up for three basic reasons; (1) Council's recommendation should be accepted by the Legis- lative body and Council should not compromise its posture by arriving at a negotiated settlement with one of its appointed Boards; (2) there has been entirely insufficient time elapsed between the time the final document was drafted until the time that action is expected to be taken on it; (3) the City Manager has prime responsibility for the City's employees and getting the work done and the City Attorney's office is responsible for the legal aspects of this. There are two aspects to the Civil Service Act involving the City directly; one is to the legality and the second has to do with Administration. The Chief Administrator of the City has not had an opportunity to evaluate this since it was put together. The Assistant City Attorney came to his office ten minutes before meeting time this morning and spent three minutes briefing him on it. This is not any criticism of the Assistant City Attorney but the time was just insufficient. That was the only briefing he had on it and he is the Chief Administrator who has to live with this thing. This Council should stand on its recommendations and see if the Legislative Delegation is going to listen to the elected, representatives of Delray Beach or if they're going to listen to politics. - 5 - 2/29/80 Mrs. Durante moved to stay with the original submittal of the City Council to the Legislative Delegation with the amendment that the reduction in term shall not apply to current office holders on the Civil Service Board and that this motion applies to the first proposed amendment that was submitted to the Delegation, not the second one, seconded by Mr. Bird. Mr. Bird withdrew his second because of confusion as to which document Mrs. Durante is referring to in her motion. The City Attorney stated that there are three documents. The first document is the one containing the lengthy amendments which was originally presented at a regular meeting of City Council at which time they discussed all of the amendments which included the hearing officer concept. That is the document that Mrs. Durante refers to Mr. Bird reinstated his second. Said motion passed unani- mously. Before roll call, the City Attorney stated that the second document includes none of the amendments in the first document except reducing the terms from four years to two years and stating that when formal criminal charges have been instituted against an employee for criminal conduct, he may be suspended by the City Manager for a period in excess of 30 days. Those are the only two things in the second docu- ment. At this point the roll was called to the motion. The City Attorney suggested that if Council is going to leave the hearing officer concept in, that they do it in accordance with the revised draft that has been submitted to them today which would make it parallel the provision that applies to administrative hearing offi- cers under State law. Mr. Bird moved that they leave the hearing officer concept in in accordance with the revised draft that has been submitted to them today which would make it parallel to the provision that applies to administrative hearing officers under State law, seconded by Mr. Young. Said motion passed unanimously. Vice-Mayor Scheifley declared the meeting adjourned at 1:35 P.M. The undersigned is the City Clerk of the City of Delray Beach and that the information provided herein is the minutes of the meeting of said City Council of February 29, 1980, which minutes were formally approved and adopted by the City Council on Clerk NOTE TO READER: If the minutes that you have received are not completed as indicated above, then this means that these are not the official minutes of City Council. They will become the official minutes only after they have been reviewed and approved which may involve some amendments, additions, or deletions to the minutes as set forth abo.ve. - 6 - 2/29/80.