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1998.06.09_TC_Minutes_Specialw ~ . l J TOWN OF HIGHLAND BEACH MINUTES OF TOWN COMMISSION MEETING PUBLIC HEARING/SPECIAL HEARING Tuesday, June 09, 1998 1:30 P.M. Mayor Arlin Voress called the Public Hearing/Special Meeting to order in Commission Chambers at 1:30 P.M., advising its purpose was a follows: [PUBLIC HEARING/SPECIAL MEETING] RE TOWN MANAGER MARY ANN MARIANO'S ABSENCE FROM TOWN HALL AND LEGAL ALTERNATIVES AVAILABLE TO THE TOWN IN THIS REGARD. Town Clerk Doris Trinley called the roll. The Mayor, Vice Mayor Thomas J. Reid, and Commissioners David Augenstein, Michael W. Hill and John J. Sorrelli were present. Also present were Town Attorney Thomas E. Sliney, Attorney Larry Gorman and members of the general public. Before commencing the Public Hearing portion of the meeting, Mayor Voress announced Police Chief Tony Cervasio had advised a Memorial • Service for Officer Dan Murphy, who passed away on June 1, was scheduled for Monday, June 15, 10•:00 A.M., at St. Lucy's Church. The Mayor then called for Public Comments and, hearing none, read his prepared statement into the record. (Attached to and made part of these Minutes.) Mayor Voress next called for the following Motion, which was contained in his statement: THE TOWN COMMISSION HEREBY MOVES TO GRANT THE TOWN MANAGER ANOTHER TWO (2) WEEKS FROM THIS DATE TO SUBMIT THE REQUIRED CERTIFICATE SHE AND HER LAWYERS SAY IS FORTHCOMING TO THE TOWN COMMISSION. Commissioner Augenstein so moved and, for discussion purposes, Commissioner Hill seconded. Commissioner Hill then read his prepared statement into the record. (Attached to and made part of these Minutes.) Concluding substantial discussion between the Commission and the attorneys, roll call was taken on the Motion, resulting in a majority favorable vote as follows: Commissioner Sorrelli........Yes Commissioner Augenstein......Yes Commissioner Hi11............No Vice Mayor Reid ..............Yes Mayor Voress .................Yes • Minutes of Town Commission Meeting June 09, 1998 Public Hearing/Special Meeting Paae 2 of 3 Town Attorney Sliney next advised of the legal alternatives available to the Town, which he had outlined in his June 9, 1998 letter to the Commission. (Attached to and made part of these Minutes.) Substantial discussion again took place regarding the legal alternatives, and concluded with the following Motion by Commissioner Sorrelli/Vice Mayor Reid: THE TOWN COMMISSION HEREBY MOVES THAT DUE TO THE TOWN MANAGER'S ABSENCE, AND PURSUANT TO SECTION 2-50 OF THE TOWN CODE, THAT THE TOWN CLERK BE APPOINTED THE ACTING TOWN MANAGER IMMEDIATELY, TO PERFORM ALL DUTIES OF THE TOWN MANAGER UNTIL FURTHER NOTICE BY THE TOWN COMMISSION, AND THAT THE CURRENT TOWN MANAGER BE RELIEVED OF ALL DUTIES. Roll call met with unanimous favorable vote. Note: Copy of Section 2-50 of Town Code attached hereto and made part of these Minutes. Mayor Voress then noted for the record the steps newly appointed • Acting Town Manager Doris Trinley should be prepared to take, i.e, meet with department heads to inform of the Commission's decision; formulate a plan as to how she intends to cover the various job levels of the Town; and be ready to report to the Commission. The Mayor also noted that the Acting Town Manager and others who may be affected by this Commission decision should be paid consistent with the job they are doing; the Commission had no objection. Finally, Mayor Voress requested the Commission's approval that he would work with Ms. Trinley to provide for a smooth transition, and that anything which might need Commission action is brought before the Commission. Upon Motion by Vice Mayor Reid/Commissioner Sorrelli, followed by unanimous vote, the Mayor's position in dealing with the Acting Town Manager was formally ratified. Mayor Voress adjourned the Public Hearing/Special Meeting at 2.20 P.M., but on advice of Attorney Sliney immediately re-opened it, stating for the record those present, in order for Attorney Sliney to administer the Oath of Office to Ms. Trinley. This being done, the meeting teas adjourned, upon Motion by Vice Mayor Reid/ Commissioner-Hill, at 2:25 P.M. • dmt e ' . Minutes of Town Commission Public Hearing/Special Meeting •Tune 09, 1998 Paae 3 of 3 APPROVE: Arl~ G. Voress, Mayor ~r?2 LQ.c~ ~~ Thomas J. Reid, Vice Mayor pp ~,~ <_~-~ c~ ~~-~.~-S Q~ David ~, Michael W. Hill, Commissioner n Jo J. Sorre Commissioner r 1 U ATTEST: TE L-C~-~% ~~~ i SUN 1}9 '98 11:18 TO-TOWN OF HIGHLAND FROH-HODGSON ~ RUSS T-867 P. 02%03 F-817 2006 Gladoa Road Albany _ Suite 400 Bora Raton GSON RUSS ~ Boca Ramn. Ft. 33431-8594 8~alo 56t-3fl4.4500aacaRw't+o~r Ntti,+Yb>•k HOD s6l•736-?177 PAW Hurls Rochester ANDREWS 954-764-2440 BHnwwaD WOODS & PAX: 561-394-3862 zbro~ artt~r: www.hodgsorttuss.com Wesr Pabn Bearh GOODYEAR B"°°-' bocalaw®hodgsoornac_com ATTOtiNHY1 A7 CAW Susan K BaumeL P.w. latnea A. Posner. P.A Lawsezaoe P. Beyer OP Councal I.atty Conran. P.w. 1998 June 9 0~ r. °eC~`~ , Anthony L. Dutton. P.A. Richard A. f3oerc, P.w. t~earr na Hew Yogic BY TELEFAX Sbl/265-3582 Mfchael x. cots, P.a James M. Haaldns. P.A- Par1 R. Cosrusu Paul 8. Rcm+m Mark S. Y.lain The Hon. Arlin G. Voress, Mayor Thomas a slimy, pw. SteQhen M. Naormatt Town of Highland Beach JeSray s. oallcc 3614 South Ocean Boulevazd ~' K' $C0~`r Highland Beach, FL 33487 Aeaz Arlin: RE: TOWN OF HIGHLAND BEACH -MARY ANN MARIANO SPECIAL MEETING 619198 Per your request I stn responding to the Town Commission's request regarding ' the legal alternatives available to the Town with regard to s Town Manager Mary Ann Marian~o he i ng t absences from Town Hall. i am setting forth below the relevant documents and delineat alternatives. The relevant provisions regazding the Town Manager's position are as follows: employment contract of 7IS/94, Section 4.01 of the Charter and Section 2-47b of the Town Code. The Town's Personnel Rules and Regulations are also relevant. Her contract uses the language on termination of "for just cause and after a hearing by an affirmative vote of not less than four members of the Town Commission" Section 2~7b uses similar language. 4.01 provides that the Mayor can suspend the Town Manager subject to approval by the Town Commission at the next meeting of the Town Commission. Note that per Article b, Section 2, of the Personnel Rules and Regulations entitled "Compulsory Resignation" there is provision for compulsory resignation where an employee who without valid reason fails to report to work for three (3) consecutive days without authorized leave shall be separated from the payroll and reported as a compulsory resignation. Such an employee is not eligible for re-employment. I view the Town Commission as having the following choices: 1. Leave the situation ar is -the Town Manager runs the town more or less in senti . Note that Section 2-SO provides that in the ~n ~eo ~ ity~an~/or~tpoa the Town Manager, the Town Clerk shall be cmpo responsibilities of the Town Manager. The problems here aze (i) that under the present situation there is no clear division of responsibility between the Town Manager and Towa Clerk; (2) lack of medical documentation to substantiate Town Manager's absence establishes bad precedent and ignores plain language of Town's Personnel Rules and Regulations; (3) allowing the Town ~.• ~UN'09 '98 11;19 TO-TOWN Of HIGHLAND FROH-HODGSON &RUSS 1t HODGSON RUSS ANDREWS WOODS 8r GOODYEAR • The Hon. Arlin G. Voress, Mayor Town oY Highland Bcach June 9, 1998 Page 2 T-867 P,03i03 F-817 Manager to keep working is inconsistent with the uurse' $ statement provided to the Town, that she needs an indefinite work leave; and (4) certain important aspects of Town Manager's responsibilities are not being fulfilled. 2. The Town Commission under 2-50 of the Town Code appoints the Town Clerk as Acting Town Manager due to the Town Manager's absence and the Town's operational and business needs, with either approved sick leave or unexcused absence while either accepting the information submitted to date or requiring additional medical itformation. 3. The Mayor suspends the Town Manager under 4.01 of the Charter for neglect of duty because of the unauthorized absences from Town Hall. The Commission ratifies the action. The Town Commission appoints an Acting Town Manager. • 4. The Commission terminates the Town Manager per her contract and 2-47b. Essentially, this would need to be "for just cause and after a hearing" or pursuant to Article 6, Section 2, of the Personnel Rules and Regulations set forth above. The Town Commission appoints an Acting Town Manager. Very trul urs, L/~~ Thomas E. Sliney TES:sIs Attachment cc w/att: The Hon. Thomas J. Reid, Vice Mayor The Hon. David Augenstein, Commissioner The Han. Michael W . Hill, Commissioner The Hon. John 7. Sorrelli, Commissioner Larry Gorman, Esquire 12577.0028 ~i • § 2-48 HIGHLAND BEACH CODE (?) Perform such other duties as may be prescribed by the charter and as may be required by the town commission. (Code 1972, § 2-20) State law reference-Financial matters pertaining to political subdivisions, F.S. Ch. 218. Sec. 2-49. 'lbws registrar. The town clerk shall be the town registrar or supervisor of registration and shall perform the duties of that office. (Code 1972, § 2-21) Sec. 2-50. Town clerk-Duties generally. (a) It shall be the duty of the town clerk to attend all meetings of the town commission and to keep the regular minutes thereof; to keep a separate book or books in which there shall be entered in full all ordinances, bylaws and orders adopted by the commis- sion; to keep a separate book in which shall be copies of all ordinances relating to assessments or liens on real or personal property in the town; to carefully file and preserve in his office the books and papers which maybe delivered to him or come into his C possession by virtue of his office, and to carefully and legibly mark such papers; to keep at all times the office free and accessible to any person having the right or claim of business therein. The town clerk shall prepare and be responsible for the agenda for the meetings of the town commission. (b) When so designated by the town commission and/or at the request of the town manager, the town clerk shall, in addition to the foregoing duties and/or functions, also serve in the capacity of assistant to the town manager. In the absence, inability and/or incapacity of the town manager, the town clerk shall be empow- ered to carry out the functions and responsibilities of the town manager. (Code 1972, § 2-22) Sec. 2-51. Same-Preservation of commission minutes. The town clerk shall maintain a permanent record of the minutes of all town commission meetings. Such minutes shall make appropriate references to all adopted and approved resolu- tions ; Supp. No. 6 130 ~- :7 a ' `i COMMENTS TO THE TOWN COMMISSION MEETING 6/9/98 ~J As we all know, at our last Commission meeting of June 2, the members of this Commission ratified the suspension of payment of Mary Ann Mariano's salary because she had failed, despite two written requests, to submit a certificate from a medical doctor justifying her more than a month's absence from Town Hall. We have now received several documents that need to be considered. (1) A Memorandum from Mary Ann, dated June 1, 1998. In that memo she states that she believes the Nurse's statement is sufficient documentation of her sick leave. However, she goes on to state: "~ since the Town's Personnel Rules and Regulations require a medical doctor's statement, I _ __will try to comply with your request for documentation of my illness." Thus, you ~. - `will `note that,` iri effect; -she acknowledges that thin- Commission is `'simply-=~ s'-= enforcing the Town Rules and Regulations by requesting a doctors certificate. She goes on to state: "xxx I am faxing and mailing to you today a letter from my cardiologist xxx" She states further: "Since your request seems to demand a medical doctor's statement xxx I am attempting to rectify the situation shortly. I anticipate that a relevant report will be forwarded to you shortly" In the memo she also sets forth the reason she cannot come to Town Hall during normal working hours. (2) A letter from Mary Ann's lawyers in which we are advised that Mary Ann had a scheduled appointment with a named psychistrist on Tuesday June 2,1998 at 2:30PM. The letter goes on to state that: "After the appointment we will ask xxx( the doctor) xxx to forward to the Town a letter opinion regarding Mary Ann ". (3) A one page note from her Cardiologist. ~ - -- In the Nurse's Memorandum, the nurse stated that she had spoken to the Cardiologist and he "has concurred with her recommendation of a work place ~~ leave of indeterminate length. xxx .The Cardiologist s note does not contain any language to the effect that Mary Ann requires a work place leave of indeterminate length. Nor does it state that she is unable, for health reasons, to come to Town Hall during working hours. His note is extremely vague in nature and does not constitute evidence of a need for a work place leave of indeterminate length. I had hoped that we would have received adequate documentation from Mary Ann by the time of this meeting so that we could classify her absence as sick ~. t , ' ~ leave, authorize resumption of Mary Ann's pay, and charge her absences from ' Town Hall to her accumulated sick leave. We have not received such documentation. However, as I previously stated, this Commission does not want to injure or hurt her. At the same time, we should not lose sight of the fact that we have been elected by the residents to protect their interests. Among other things, that obligation on our part, requires that we enforce the Town's Rules and Regulations to the effect that an employee be permitted to remain away from the workplace for an extended period of time only if the employee submits adequate evidence of a health need for such leave. We are not being " hypertechnical " or being harassers when we call for Rule compliance and any such claim rings hollow. It is particularly important that we insist on such a certificate in this instance because the employee is the Town's principal employee, the leave being requested is for indeterminate length of time, and the employee appears to be claiming that the illness is the result of wrongful conduct on the part of Town officials. I believe that we can be fair both to Mary Ann and to our residents if we give her one final opportunity to fulfill the promises she and her lawyers have - given us to comply with our request for the required certificate. Therefore~~ I -" ~~- =_-- recommend that we grant her another 2 weeks to obtain the information that she and her lawyer's say is forthcoming before we revisit this issue. In order to get this on the floor for action, I would like for someone to make the • following motion: The Town Commission hereby moves to grant the Town Manager another 2 weeks from this date, to submit the required certificate she and her lawyers say is forthcoming to the Town Commission. We now must take up the critical issue of how to make certain that the Town Government will continue, to function efficiently and effectively in her absence. She is the Town's principal employee, the one charged, under Sec. 3.01 of the Town charter, with administering the affairs of the Town of Highland Beach and who shall be the chief administrative officer appointed by and responsible to the Town Commission. In a memorandum to me dated June 1 1998, covering several issues, she asserts that she can adequately perform her duties as Town Manager from home by telephone without coming to Town Hall. She would like the Commission to approve such an arrangement. That suggested arrangement seems to me to be a totally unrealistic approach, one, which is not designed to serve the best interests of the Town residents. Among other things, the Town Manager should be available on working days for face-to-face discussions with the Members of the Town Commission, the Town employees, and members of the public, various • business and other people who visit Town Hall to discuss some aspect of an interface with the Town. The job description of Town Manager, a job that pays a substantial salary, contemplates an on site, full time Manager, not one who will transact Town business by telephone from her home. I think it is unreasonable to ask the Town to accede to that kind of a unique arrangement, particularly when it flies in the face of the Town Manager's job description and when we have no idea as to how long such an arrangement would be expected to continue. She has already been away from Town Hall for more than a month and her absence has, in my opinion, had a negative impact on the day-to-day operations of our government. The Town Department Heads and employees do not have their supervisor present to assist them, answer questions relative to policy, give interpretations of rules and practices, etc. In addition, she is not available to talk with and discuss issues with Town Commissioners when they stop in at Town Hall at various times during the week, and she does not show up at Town commission meetings where a dialog can be held among all commissioners. Mary Ann also periodically attends meetings with the Town Boards to provide insight, background, and answers to questions as needed and needs to be available to allow the Boards all necessary resources, at the Town's command, for making decisions. You have been provided a list of alternatives and their implications, by our attorneys, relative to actions that the Town Commission might wish to consider to deal with the Town Manager's absence. I would like to say that, in my judgment, it is necessary for us to take an action today, which will insure the professional operation of the Town. This will assure our residents that their interests are protected and respected while Mary Ann is absent and unable to perform all aspects of her job. I will turn now to the Town Attorney to carry on a discussion of the alternatives available to the Town Commission DISCUSSION In order to get this on the floor for action, I would like to ask for someone to make a motion. AGV 6/9/98 • VERBATIM COMMISSIONER MICHAEL W. HILL'S STATEMENT JUNE 09, 1998 PUBLIC HEARING/SPECIAL MEETING AS COMMISSIONERS WE HAVE AN OBLIGATION TO THE TOWN TO MINIMIZE POTENTIAL CLAIMS. THIS IS PURELY BUSINESS AND, WHEN WE MAKE THESE DECISIONS, WE HAVE TO PUT OUR PERSONAL FEELINGS ASIDE. BUSINESS IS BUSINESS. WHAT WE HAVE TO DO IS WE HAVE TO BALANCE THE COST TO THE TOWN OF HE MANAGER COLLECT SICK LEAVE BENEFITS AGAINST THE POSSIBILITY THAT OUR REFUSAL TO PAY HER SICK LEAVE COULD BE DETERMINED AT SOME TIME IN THE FUTURE TO CONSTITUTE RETALIATION. I THINK IT'S ENTIRELY POSSIBLE THAT - I'M NOT SAYING PROBABLE AND I'M NOT RENDERING A LEGAL JUDGMENT - JUST SAYING THAT A JURY MAY DETERMINE THAT 2 YEARS AGO WE WOULD NOT HAVE HAD OUR ATTORNEYS EXAMINING THE TOWN MANAGER'S SICK NOTES. I'M CONCERNED THAT IT COULD BE DETERMINED THAT THE DIFFERENCE - BY JURY - IN OUR TREATMENT OF THE TOWN MANAGER TODAY COULD A RESULT OF HER FILING A COMPLAINT AGAINST THE TOWN. LETTING THE TOWN MANAGER BURN UP HER ACCUMULATED SICK LEAVE DOESN' T COST THE TOWN ANYTHING BECAUSE SHE'LL GET PAID OUT EVENTUALLY WHEN SHE LEAVES. HER ABSENCE IS CLEARLY INCONVENIENT. WE DO NEED SOMEONE IN CHARGE., AND I SUGGEST THAT TODAY WHAT WE SHOULD FOCUS ON APPOINTING AN INTERIM OR TEMPORARY MANAGER TO ASSUME HER RESPONSIBILITIES. THE TOWN MANAGER HAS CLAIMED THAT THIS COMMISSION HAD RETALIATED AGAINST HER, BUT PRIOR TO THE ACTION TAKEN LAST WEEK, THE TOWN MANAGER HAD SUFFERED NO FINANCIAL LOSS. I DON'T THINK WE WANT TO ADD FUEL TO THIS FIRE. THIS CASE IS GOING TO MEDIATION WITH THE EEOC TOWARD THE END OF THE MONTH. IT IS MY JUDGMENT THAT BALANCING NO COST ON ONE SIDE - NO COST TO THE TOWN - AGAINST INCREASING OUR POSSIBLE LIABILITY ON THE OTHER HAND, IS THAT WE SHOULD LET MARY ANN BURN UP HER SICK LEAVE. dmt U r ,' I~ ~ ~JUN•a9 '9a 11;17 To-TOWN OF HIGHLAND FRDH-HDDGSON & RlJSs File Number: HODGSON, RUSS, ANDREWS,1N04DS & GOODYEAR up {A PARTNI:RSIiIP iNCLUDlNG PROFESSIONAL ASSOCIATIONS) A'iTORNEYS A7 LAW 1800 One M As T Plea 2000 Glades Road Th~oa ~tY square Buffalo, NY 14203-2391 SUItA 400 Albany, New York 12207 c71 sl a6s-aooo Boca Raton, Florida 3343'[ t61 sl asb-x333 (56'1) 394-0500 2608 Chase Square Rochester, New York 146041929 (716) 464-s950 Sun Llfe Contra 150 King Street west Toronto, Ontario M6H 1J9 (416} 696-5100 Please Deliver this Taansmisslon ts: NAME eve Hon, Arlin G. Voress, Mays *All Meiid~ers, Tc~,m Conmissieln Fax: (5611 394-3862 ORGANIZATION TQn1N OF HIC~3LAND RE'.ACF3 ~ ~aiY3s E. Sliney, Esquire From June 9, 1998 Q te• T-867 P.01~03 F-817 1876 Broadway, 24th Floor New York. NY 10019 i21 Zi 603-6880 222 Lake View Avenue 6uito 930 West palm Beach, FL 33401 (567) 802-3576 FAX NUMS>~R TIME A~ 12577 3 Total No. of Pages Including Covet Page: a . *Upan receipt, please duplicate and c3eiiver a copy of the atta,chcc. letter to Message: Vice Mayor Reid and Ccnmissiotlers Augenstein, Hill ~d Sorrelli. 'Thank vou. Z'ES:sls Attactunent {Note: Check Sox No. 1 or Box No. Z) CONFIDEN.[iAL1TY NOTICE Work-Product privilege or other legal ® 1. This is a CONFlDENTIAI. transmission based upon a claim of Attorney-Client privilege. confidentiality tights. We are a law firm reprasarlti~g our client. This transm{ssion is intended for the designated addressee only. If you are not the intended reciplent, please contact us immediately and REFRAIN FROM DISCLOSING OR USING THE ENCLOSED INFORMATION IN ANY WAY. ><ailure io comply with this direction ensy result in a claim that you have violated the law and are liable for money damages. 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