Loading...
HomeMy Public PortalAbout02- February 13, 2012 Special Meeting Minutes CITY OF OPA-LOCKA "The Great City" CLERK'S ACTION SUMMARY MINUTES SPECIAL COMMISSION MEETING February 13,2012 5:00 P.M. Opa-locka Municipal Complex 780 Fisherman Street, 2ND Floor Opa-locka, FL 33054 1. CALL TO ORDER: Mayor Myra L. Taylor called the meeting to order at 5:05 p.m. on the 2ND Floor of the Opa-locka Municipal Complex, 780 Fisherman Street, 2ND Floor, Opa-locka, Florida. 2. ROLL CALL: The following members of the City Commission were present: Vice Mayor Dorothy Johnson, Commissioner Rose Tydus, Commissioner Gail E. Miller, Commissioner Timothy Holmes, and Mayor Myra L. Taylor. Also in attendance were: City Manager Bryan K. Finnie, City Attorney Joseph S. Geller and Interim City Clerk Joanna Flores. 3. INVOCATION: The Invocation was delivered by Mayor Myra L. Taylor. 4. PLEDGE OF ALLEGIANCE: The Pledge of Allegiance was recited in unison. 5. DISCUSSION: DETAILS OF FORMER CITY CLERK DEBORAH S. IRBY'S FINAL PAYMENT/SEVERANCE PAYOUT PACKAGE, AND POSSIBLE COMMISSION ACTION. Manager Finnie said the City Commission has been provided with a staff reviewed payout package for the former City Clerk. The package looks at Salary Compensation, Accrued Sick Leave, Accrued Vacation Time, Compensatory Time, and net Payout. The net payout is based on a pre tax basis in the amount of One Hundred Seventy Four Thousand Three Hundred Twenty Six Dollars and Fifty Three Cents ($174,326.53). After taxes the payout is One Hundred Thirty Nine Thousand Three Hundred Fifty Three Dollars and Fifty Seven Cents ($139,353.57). He further mentioned there are a series of on going payouts that will be made for Deferred Compensation in the amount of Fourteen Thousand Two Hundred Ninety One Special Commission Meeting—02/13/2012 1 Dollars and Twenty Eight Cents ($14,291.28), Insurance Coverage for nine months in the amount of Five Thousand Seven Hundred Twenty Seven Dollars and Eighty Seven Cents ($5,727.87), Social Security in the amount of Seven Thousand Three Hundred Forty Four Dollars and One Cent ($7,344.01, Medicare in the amount of Two Thousand Five Hundred Thirty Five Dollars and Forty Two Cents ($2,535.42), FRS in the amount of One Thousand One Hundred Fourteen Dollars and Fifty Seven Cents ($1,114.57), Car Allowance in the amount of Five Thousand Four Hundred Dollars ($5,400.00). Staff looked at the areas of compensation, nine months of salary, accrued vacation/sick time, and compensatory time and staff memorandum has recommended the payout based on Mrs. Irby tenure with the city and her contract. Attorney Geller said the memorandum that is being discussed provides for the payment of withholding taxes and it is his understanding that it has to be deducted because its wages. The federal withholding, social security, medicare and car allowance are not in dispute. It is to his understanding that the city will continue to pay insurance coverage and deferred compensation directly to those parties providing that they are willing to keep her on the plan and someone other than him self has verified that with FRS and the Health Insurance Provider. The only legal question is the amount of compensatory time and as previously indicated there are some questions about compensatory time; the contract says she is entitled to compensatory time. The contract was entered into in 2006 and he is not aware of something that will provide compensatory time prior of the entry into the contract. She is entitled to compensatory time from the time the contract was entered into. Attorney Geller said there are some questions as to what items constitute compensatory time and the amount. He doesn't agree with the calculation because as previously stated the contract started in 2006. His recommendation would be to pay the former City Clerk immediately on the other items because there is no dispute as to her salary, car allowance, sick/vacation time with the exception of the minor qualification that has to be verified regarding deferred comp and insurance payments. He further mentioned that he spoke to Mrs. Gilliam, the attorney for Mrs. Irby and they will like to continue trying to work out the compensatory time issue to see if they can reach an agreement and bring it back to the City Commission. Vice Mayor Johnson asked, what account will the former City Clerk be paid from? Manager Finnie said staff is currently looking at 8 or 9 different accounts to collect the dollars. Vice Mayor Johnson asked Attorney Geller to give her clarification on page 6 section 16 (employment agreement). Special Commission Meeting—02/13/2012 2 Attorney Geller said it basically says the city will indemnify the clerk if there is a claim against the clerk relating to her duties as City Clerk, whether it is a court claim, professional liability claim, or some other kind of action brought against her. Vice Mayor Johnson said in her line of duty as the City Clerk, if that correct? Attorney Geller replied, yes. Vice Mayor Johnson asked, what documentation is being used to substantiate the amount of hours that is mentioned in the memorandum? Dr. Ezekiel Orji, Finance Director appeared before the City Commission and said the information was provided to staff by the former City Clerk that showed the hours she worked and staff used information from Human Resources that showed the number of hours that she accrued for vacation and sick leave. Vice Mayor Johnson asked, where are the copies of the Human Resources information and the name of the report that was utilized? Dr. Orji said he will provide the commission with a copy. Vice Mayor Johnson said that information should have been given to the City Commission because staff built an argument case on statistics and/or data which has to be supported. Dr. Orji said in regards to the compensatory time he made reference to information that was provided by the former City Clerk and he has it available. Vice Mayor Johnson asked, how did staff get the percentage of 20% for federal tax withholdings? Dr. Orji said he received the percentage from the Internal Revenue Service and 20 percent is a factor that is used when the tax withholding is not done on a bi-weekly or bi- monthly basis, 20 percent is standard. Vice Mayor Johnson asked, is she to understand that staff notified the Internal Revenue Service and staff was told when there is a payout of such, instead of having the bi-weekly which the employee would have paid that you are now obligated by law to withdraw 20 percent? Dr. Orji said he called Internal Revenue Service and gave them the scenario and he was told for a lump sum payout 20 percent is standard. He also mentioned that he can not recall the agents' name that he spoke to at the IRS. Vice Mayor Johnson said she is not saying the percentage is right or wrong, she would like to know what is in it to support what is being told to the City Commission. Special Commission Meeting—02/13/2012 3 Commissioner Holmes asked, how did the former City Clerk accumulate compensatory time? Dr. Orji said the former City Clerk provided staff with a schedule listing 3 Y2 hours per Commission Meeting. Commissioner Holmes asked, is her reason for receiving compensatory hours because she attended the Commission Meeting? Dr. Orji replied, yes. He said the former City Clerk calculated her compensatory time from Commission Meetings and Special Events held by the city. Commissioner Holmes said section 16 of the charter reads: The City Clerk shall be appointed or removed by the City Commission, and shall be the official keeper of the city seal and shall in addition thereof, but not limited thereof, perform and be responsible for the following: 1. The City Clerk shall be the Supervisor of Elections, shall be responsible for the preparation of the ballots and the conduct of all elections of the city. 2. The City Clerk shall appoint such deputy clerks as may from time to time be necessary to carry out the duties of the office. 3. The City Clerk shall attend all meetings of the city commission and shall keep the minutes of all such meetings. 4. The City Clerk shall certify and maintain all permanent official records and archives of the city. 5. The City Clerk shall perform such other duties as required by ordinance or resolution of the city commission or as otherwise provided by this charter. He further said he does not understand how the former City Clerk is requesting to be paid compensatory time for performing her duties under the charter and she is a salary employee. Since he been a Commissioner, the city has not had enough of special events to give her almost Thirty Five Thousand Dollars. He continued by saying he does not have a problem with the salary, sick and vacation payment. He said he previously asked Dr. Orji if her time cards were pulled to see if she had any comp, sick, and annual time documented. She has been collecting compensatory time all these years knowing she is not supposed to be compensated for it. Who ever prepared the agreement, the City Commission did not approve for compensatory time to be in the agreement, and the compensatory time should have come before the commission. Special Commission Meeting—02/13/2012 4 Commissioner Holmes asked, why is she being paying for a car allowance and she will not be driving her car for any city business? Commissioner Holmes mentioned that there are other employees that attend meetings and he would like to know if they are being compensated for compensatory time. Attorney Geller said he does not have any records that he was able to review. The contract for Mrs. Irby was entered into on March 8, 2006 and it indicates that benefits does not include compensatory time. It does say that accrued sick/vacation and compensatory time are due and payable upon termination. That will indicate that there is some entitlement to compensatory time. In this contract he will not agree that there was entitlement to compensatory time prior to the entry of the contract. The contract is a departure from the usual law which is that salary employees does not receive compensatory time. From the time the contract was entered into it can be recovered, his position is it should not be prior to that, but the contract does not specifically defines what constitute compensatory time, typically it refers to something an employee does that above and beyond their regular duties. Commissioner Holmes said there may be an ordinance or resolution,but the contract does not have a vote by the commission stating that they know exactly what was in the agreement. At the last Commission Meeting staff had a list of figures almost $240,000.00 before the commission decided to fire or keep Mrs. Irby. If the commission would have voted on that amount then she would have received the money not knowing that there was a big difference in figures before the commission today. He will not support the compensatory time knowing he did not vote for it in the agreement. Vice Mayor Johnson asked, why is the time calculated back to 1994? Attorney Geller said he does not know why, but he does not feel that is justified. He further mentioned that he expressed the city's position to Mrs. Irby's attorney and they talked about continuing to have dialogue to see if they can reach any resolution to recommend to the commission. Vice Mayor Johnson said everything is spelled out in the employment agreement. Attorney Geller said subject to various qualifications he previously mentioned, yes everything else is spelled out. Vice Mayor Johnson asked, what is not in agreement? Attorney Geller said he wouldn't say its not in agreement, he has spoken to administration and they indicated they checked with FRS and the insurance companies and if it's okay with them the city continue to make the payments for deferred compensation and to the insurance companies, if that information has been verified then Special Commission Meeting—02/13/2012 5 he has no objection to that, the only question is the percentage for withholding taxes. The only thing he has a disagreement with is the amount of compensatory time, the entitlement to the particular compensatory time, and the amount. That's not to say that there shouldn't be any but he is in disagreement with the amount, how far back the time goes, what it's for, and there needs to be verification for the amount of compensatory time that is being claimed. Vice Mayor Johnson asked, is everything in the agreement being agreed upon today with both parties except compensatory time? Attorney Geller replied, yes. Vice Mayor Johnson asked, what have the City Attorney seen documented on behalf of the city for what is being stated. Attorney Geller said he spoke to the City Manager and some of his staff, particularly Dr. Orji and some conversation at one point with the Human Resources Director. They verified that the amount of hours for sick/vacation is what the record show and that is fine with him. Vice Mayor Johnson said if she understands correctly the sick leave has been verified by Human Resources. Is that correct? Attorney Geller said that is his understanding. Vice Mayor Johnson asked Manager Finnie is that correct. He replied, yes. Vice Mayor Johnson asked, who verified the vacation leave? Manager Finnie said Human Resources. Vice Mayor Johnson asked, who verified the Florida Retirement System? Manager Finnie said Human Resources. Vice Mayor Johnson said is it correct that the withholding taxes were verified by Internal Revenue? Manager Finnie said Human Resources. Vice Mayor Johnson asked, who verified the Deferred Comp? Manager Finnie said Human Resources. Vice Mayor Johnson asked, who verified the insurance coverage for nine months? Special Commission Meeting—02/13/2012 6 Manager Finnie said Human Resources. Vice Mayor Johnson asked, who verified Social Security, Medicare, the City's contribution to the Florida Retirement System? Manager Finnie said Human Resources. Vice Mayor Johnson said the car allowance that is stated in the employment agreement says Six Hundred Dollars per month for nine months should be Five Thousand Four Hundred Dollars ($5,400.00). Manager Finnie said that is correct. Vice Mayor Johnson asked, what is in place to assure that the previous City Clerk will have insurance for nine months? Attorney Geller said that will come from the Human Resources Department because they work directly with the health insurance company. Vice Mayor Johnson said she feels it is the City Attorney responsible to make sure the city is covered and whatever is spelled out in the agreement is carried out. She further said she is concerned because she does not want to fall on institutional knowledge. All the information that has been verified with the difference company's should be in writing. Attorney Geller said he assume the information will be forth coming in writing. If the health insurance has not been verified then the employer will have to be given the COBRA information to be able to put that in place for March. Vice Mayor Johnson said because of the turn over and experience in the Human Resources Department she is concerned because these options should be to the table now, the employer and agency's should be making decisions and the commission does not have that information. She does not think staff did a good job in presenting a business case as to what the options are and who verified the information, all of that should be substantiated with supporting documentation. She further stated if there is a delay then the city can go into paying out additional money. Attorney Geller said interest rates at this time are very low and any possible interest charge is almost negligible on the amount of money being discussed. Vice Mayor Johnson asked, is there a timeline mentioned for payout in the agreement? Attorney Geller said the agreement reads upon termination and that does not mean when you feel like it, it means basically at the time of consistent with meeting your responsibility to verify amounts and numbers. Special Commission Meeting—02/13/2012 7 Vice Mayor Johnson asked the City Attorney to spell out a particular paragraph in section 12 of the employment agreement. Attorney Geller said this is the retirement contribution and it calls for ICMA and he was told at some point that became a contribution instead to FRS, but it is basically referred to as deferred compensation. Vice Mayor Johnson said there are some amounts that staff feels comfortable with and it is spelled out in the agreement. She is requesting that staff spell out the section and give the Commission a definition and answer as to who did what on what day. Manager Finnie said staff will prepare the information and provide the City Commission with a copy in the morning. Commissioner Miller said the former City Clerk was given this contract in 2006 and each year it rolled over is that correct? Attorney Geller replied, yes. Commissioner Miller said that contract reads if she gets fired for no cause she is suppose to be compensated. Wednesday night four the majority of the commissioners voted for her to receive her payout and she still has not received her money and that's sad. She asked did Attorney Geller speak to the Former City Clerk attorney? Attorney Geller replied, yes. Commissioner Miller asked, are you saying both attorney's have spoken and can not come to an agreement? Attorney Geller said there is not any disagreement except the compensatory time and they are going to try and continue to work the issue out. Commissioner Miller said Mrs. Irby has been to every function the city had and there's a problem with the compensatory time. Attorney Geller said it is in her contract it's just a question of what it's for and the amount that has to be verified. Commissioner Miller said one of her colleagues called the Finance Department and demanded that the Interim City Clerk receive the same salary as the former City Clerk. Commissioner Holmes said he is tired of being accused of things he is not aware of and for things he has not did. He asked, is there anything he can do to stop these accusations on the dais? Special Commission Meeting—02/13/2012 8 Attorney Geller said the chair is the person that runs the meetings and controls the dais. You can always bring the issue to the chair,but it's up to the chair. Commissioner Holmes said this is the worse this city has been. He said he is in agreement with the former City Clerk to receive payment for her salary and accrued sick and vacation payout, but his main concern is the compensatory time. As previously mentioned if she has been paid for services under her job description then they need to check her pay stub to see how much she received so it can be subtracted from her sick and vacation time. Commissioner Holmes asked does Attorney Geller have a copy of the law suit? Attorney Geller replied, yes. Commissioner Holmes asked Attorney Geller to read section 26 of page 5. Attorney Geller said section 26, page 5 of the law suit reads: If Ordinance 12- passes Irby's employment contract will be rescinded and there will be no clause to be compensated there under should she be terminated from her position. Commissioner Holmes said that ordinance will be coming before the City Commission at the next Commission Meeting for a vote. Attorney Geller said as he previously advised the commission, the city has a valid employment agreement with the former City Clerk and it is his opinion that whether the ordinance is rescinded or not there is a valid employment agreement. Commissioner Holmes said he is willing to go along with everything except the compensatory time and he will not support the compensatory time. If she fight this he hope the investigation will show she got paid from 2006-current for compensatory time and it will be a larger investigation. Commissioner Tydus said she applauds the administration for the due diligence they have done concerning this matter and presenting the document they have because Wednesday the city was about to pay out nearly a quarter of a million dollars with no justification. She further said she is concerned because the agreement is very unclear as it relates to compensatory time, whether or not compensatory time is considered a benefit or not. There is a section in the agreement that outlines the two types of terminations. In both subsections A and B it says the term benefit does not include compensatory time. Following that it reads: accrued unpaid but earned salary, benefits and deferred compensation as well as accrued sick, vacation, and compensatory time also shall be due and payable upon termination. She further said that is very unclear to her. She will base her vote on the definition of compensatory time. The charter is very clear as to the definition of compensatory time as it relates to the duties and responsibilities of the City Clerk, attending meetings is a part Special Commission Meeting—02/13/2012 9 of the responsibility and duty of that position. It has been her experience that compensatory time where it is warranted is always approved by the department head upon request of that compensatory time. There has never been any request since her tenure for any compensatory time or request of compensatory time because of approved compensatory time. If compensatory time is warranted, where is the documentation requesting to take that compensatory time, because it has never come before the City Commission. She said the Commission needs to determine what is compensatory time and if they are going to abide by the charter that the responsibility and duty of that position is to attend commission meetings. If its determined that compensatory time is warranted then she is willing to consider payment of the compensatory time with a written justification. She said she agrees with everything except the compensatory time. Commissioner Holmes said if the compensatory time item is passed by the City Commission then they will be opening the door for other employees to receive compensatory time and this is wrong. Who ever prepared the agreement knew it was not in the city's charter for her to be paid for attending commission meetings and it is against the law and that's the reason he want the police department to do their investigation to find out how many laws have been violated. Vice Mayor Johnson said in 2006 legislation was passed to address compensatory time which did not include the three employees that report to the commission. She would like staff to get a copy of the legislation that was previously passed regarding compensatory time. She said the majority of the commission is not comfortable with the compensatory time, what will be the pay out amount minus the compensatory time? Manager Finnie said the pay out amount with out compensatory time will be approximately One Hundred Forty Five Thousand Dollars ($145,000.00). Eighty Three Thousand Seven Hundred Ninety Four Dollars and Sixty Two Cents ($83,794.62), Forty One Thousand Nine Hundred Forty Eight Dollars and Thirty Four Cents ($41,948.34), Fourteen Thousand Four Hundred Ninety Four Dollars and Eighty Six Cents ($14,494.86), Five Thousand Four Hundred Dollars ($5,400.00). Vice Mayor Johnson asked, is the Thirty Four Thousand Six Hundred Twenty Six Dollars and Ninety Eight Cents ($34,626.98) still in question? Manager Finnie replied, yes. Attorney Geller said the figure the City Manager provided excludes compensatory time and direct pay items. Mayor Taylor asked, what is the base figure? Dr. Orji said the pay out amount is One Hundred Forty Five Thousand Six Hundred Thirty Seven Dollars and Eighty Two Cents ($145,637.82) and they will have to take tax withholding from this amount. Special Commission Meeting—02/13/2012 10 Vice Mayor Johnson said the tax withholding is on a different line and it is Thirty Four Thousand Nine Hundred Seventy Dollars and Ninety Six Cents ($34,972.96) and it was not calculated on these numbers. Dr. Orji said with out the compensatory time the tax will be Twenty Eight Thousand Forty Seven Dollars and Fifty Six Cents ($28,047.56). Mayor Taylor asked, what is the process when a person wants to be paid compensatory time? Dr. Orji said the employee would have to make a request to their supervisor. Manager Finnie said the city does not have compensatory time. Mayor Taylor said the city has it now. Manager Finnie said because compensatory time was in her contract. Mayor Taylor asked, what is the calculation based on? Manager Finnie said they are calculating the compensatory time based on the hours that were submitted by the former City Clerk and based on the fact that the contract was not clear as to what will be the process to access compensatory time. Mayor Taylor asked, was there a process when compensatory time was allowed? Commissioner Tydus said compensatory time is time off when you work over your regular hours and you don't get paid. Attorney Geller said the city could be called upon in court depending on the commission vote. Commissioner Holmes said Dr. Orji previously stated there is nothing in the Human Resources Department regarding compensatory time. It was moved by Vice Mayor Johnson, seconded by Commissioner Holmes to pay Deborah S. Irby One Hundred Forty Five Thousand Six Hundred Thirty Seven Dollars and Eighty Two Cents ($145,637.82), excluding compensatory time and federal tax with holdings and allow the City Attorney time to explore the options of the compensatory time. Supporting documentation needs to be provided to the former employee to support the other items that will be paid such as Deferred Compensation Plan, Insurance Coverage, Social Security, Medicare and Florida Retirement System. There being no discussion, the motion passed by a 5-0 vote. Vice Mayor Johnson Yes Commissioner Holmes Yes Commissioner Tydus Yes Special Commission Meeting—02/13/2012 11 Commissioner Miller Yes Mayor Taylor Yes Faye Douglas, Budget Administrator informed the City Commission that the payment will be paid from the City Clerk's budget line item for salaries, account number 16- 512110, there is not enough dollars in that account for the payment so they will be deducting the money from attrition savings, employees that has left, vacant positions that has not been filled and other line items in order to make the payment. Vice Mayor Johnson said the salary and car allowance should have already been budgeted. Ms. Douglas said that is correct, but the salary in the City Clerk's budget is for the City Clerk salary which the City Commission will be selecting a new City Clerk. The payment of nine months will be in addition to the salary of the City Clerk that will be selected. Vice Mayor Johnson said staff is not to take any money from the reserved account. Ms. Douglas said staff is looking at the sick and vacation liability reserve and that is a reserve for this type of situation. Vice Mayor Johnson asked, when will the check be executed? Manager Finnie said he is prepared to make the payment today. Commissioner Holmes said he will have a letter for the next commission meeting because he will not tolerate any more abuse on the dais. 6. ADJOURNMENT: There being no further business to come before the City Commission, it was m4ve4 by Vice Mayor Johnson, seconded by Commissioner Holmes to adj urn the meeting at 6:35 p.m. / AYO► ATTEST: INTERIM CITY CLERK Special Commission Meeting—02/13/2012 12