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HomeMy WebLinkAbout1976-02-17; City Council; 3588; Personnel Board action - N. Vermilyea- CITY OF CARLSBAD AGENDA BILL N0._4""'"""".S-,--=-g';..:~-------- DATE: February 17, 19tt DEPARTMENT: Personnel Subject: REPORT OF PERSONNEL BOARD ACTION NATAI,IE VERMILYEA -SICK LEAVE ACCUMULATION Statement of the·. Matter The City of Carlsbad Personnel Beard convened on January 28,·1976 to hear an appeal submitted by Natalie Vermilyea concerning her right to be paid for certain disputed sick leave accumulation upon retirement. The Board's ~ecision and recornmendatio~ to the City Council are attached. The City Council has two options for action: 1. Concur in the Personnel Board's recommendation and order the action implemented. 2. Not concur in the Personnel Board'3 xecommendation and order the original ad.~inistrative action implemented. ' ·. Exhibit •· 1. Letter to City Council from Chairman of Personnel Board 1 dated 2-11-76 • . 2. City statement of facts in appeal of Natalie H. Vermilyea. 3. Appellant statement of facts in the appeal of Natalie H. 'vermi1yea. 4. MiscelJaneous excerpts from the City's Personnel Ordinance and Personnel Rules. Recommendation Council action 2-17-76 The Council concurred in the Personnel Boa rd' s recornmendati on and ordered the action implemented. r 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 QCitp of QCadsbab February 11, 1976 Mayor Frazee and City Council Members City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 RE: Appeals Board meeting of January 28, 1976 -Appeal of Natalie H. Vermilyea TELEPHONE: (714) 729-1181 The Personnel Board met on January 28, 1976 to hear the appeal ot Natalie Vermilyea. In reference to the above hearing, it was unanimously decided by the Personnel Board to uphold the appeal of the appellant, Natalie Vermilyea. Some of the reasons for this decision were: i. Ordinance 1727 superseded Ordinance 1120 and is regarded by the Personnel Board as establishing, from the date of adoption, the rules and regulations for the personnel system of the City of Carlsbad (Supersede: tJ cease, to set aside or drop from use, inferior, and obso~ete). 2. Section 5 of Ordinance 1727 (pg. 23) states, "for the purposes of computing sick leave, employment shall be considered to have commenced on the first date of the first full calendar month of employment." 3. Section 8 of Ordinance 1727 clearly establishes the method of computation of accrued and unused sick leave and was, therefore, applicable. 4. We cannot find in Ordinance 1120 or Ordinance 1727 any provision to exclude City employees, with service prior to the enactment dates, from any rules and regulations within these ordinances. There being silence, it would be discriminatory and unfair to prior employees who had accumulated their maximum sick leave prior to 1970 (the enactment date of Ordinance 1727), to not let them accumu- late sick leave under the same conditions as employees j r--r I I I Mayor Frazee and City Council Members Page 2 s. hired after 1970. We, therefore, regard Ordinance 1727 as the applicable ordinance and it is our conclusion that to do otherwise would 1,e discriminatory and unfair to those employees who have served the City long and faithfully. Very truly y~_/ . & . ~ L~ 'Z' JEZ l,. RO>wOTfS . ~---:airman, Personnel Board JLR/mla cc: city M&nagerY City Attorney Members of Personnel Board . ' :CITY STATEMENT OF FACTS IN T,:E APPEAL OF NATT.LIE H. VERMILYEA Mrs. Natalie Vermilyea was employed by the City of Carlsbad in August, 1952 and has been continually so employed to the present time. Mrs.·verrnilyea has applied for retirement effective in ;1 March, 1976. The essence of this appeal is the amount of accurnu- l.ated sick leave for which she is entitled to be p~id upon retire- ment. The Personnel Ordinance .regarding sick leave in effect at the time of her employment, through May of 1~70, provided that an . l employee would be eligible for one day of sick~leave for each thirty days of employment, or twelve days per year. The ordinance· prov~ded further that unused· sick leave couid b~ acc~ulated not to exceed a total of 120 days. By the end of-1962 Mrs. V~rini:lyea ·had accumulated sick leave up to the 120 day limit, In accordance with the ordinance, twelve days of sick leave were avail:a1>1.e to Mrs. Vennilyea in any given year between 1962 and 1970 if any of the 120 days was used; however-, accumulations above the 120 day limit were not made. In May of 1970.the Council, by ordinance, adopted a Merit System for the City of Carlsbad. The ordinance provided tha~ all employees who had completed their probationary period would automatically become regular members .o~ th~ Merit Service. In addition, the ordinance provided for the adoption of personnel rules and regulations. A set of rules was adopted cGn- currently with the ordinance. The rules amended the provisions governing sick leave in two respects. First, the provision in the l I I r ! .... NATALIE H. VERMILYEJI. -2-February 5, 1976 original ordinance establishing a 120 day limit on the accumulation of sick leave was deleted and replaced with a rule that any sick j leave " ••• accrued, but unused, in any year shal1 be cumulative for succeeding years." Pursuant to the new·rule, beginning in May of 1970, the City began to allow accumulations of sick leave in excess of the previously imposed 120 day limit. Second, a rule was added l tl1~t provided that an employee leaving the City service in good standing after ten years would be paid one-fourth of his accumulated unused sick leave. An employee leaving after fifteen years of such service would be paid one-half of his accumulated unused sick leave. Payment for the leave would be computed c~ the basis of highest average monthly salary during th~ period of any three cons~cµ~!ve years. Mrs. Vermiiyea has applied for retirem~nt e~f~ctive in. March, 1976. Pursuant to her request the City Manager computed the amount.of accumulated sick leave for which she was entitled to be paid as of that date. The City Manager datermined: that between 1952 and 1962 Mrs. Vermilyea accumulated 120 days of sick leave; that between 1962 and 1970,. while.in any given year twelve days of sick leave were available to her for use in any one year if any of the 120 days was used, no additional sick leave could be ~ccumulated since the rule precluded accumulations in excess of i20 days; that effective in May of 1970 the adoption of the personnel rules elimi- nating the limit on the accumulations allowed: her to again accumulate . ' ..NATALIE iI. VERMILYEA February 5, 1976 sick leave; that she thereafter accumulated sick lea~e through .the date of.her retirement,· a total of approxima~ely 195 days • . Mrs. Vermilyea maintained that sick ~eave should be accumulated " from the day-of her ·initial employment to tha date of her retirement• and claimed a total of approximately 281 days. Her claim was denied.· As a result, Mrs. Vermilyea appealed the City ¥anager 1 s determination ·1 to the Personnel ~oard. At the hearing before the Board the appellate maintained that ~he change_of the rule in 1970 allowing the accumulation of sick leave was retroactive in effect and entitled Mrs. Vermilyea to be paid for the total of 281 days. The City agreed that ~rs. Vermilyea should be paid on retirement fer .all accumulated sick leave, maintaining that no i~crease in total accumulated sick leave beyond 120 days was permitted by the rules prior to 1970. Therefore, Mrs. Vermi·lyea should be paid for 120 days, plus sick leave accumulated after. 1970, or a total of 195 days. Pertinent sections from the ordinances and rules are attached. r··:? By\. <>,i}, }---, 1 PAUL D. BUSSEY city Manager I AFPELLATE'S STATEMENT OF FACTS IN ~HE APPEAL OF NATALIE H. VERHILYEA Mrs. Natalie H. Vermilyea was the first employee of the City of Carlsbad at its incorporation in 1952, and has been continually employed by the City to the present date. Mrs. Vermilyea will retire in March of 1976 after almost twenty-four years of continuous· service. The question presented by her appeal is the proper amount of accumulated sick leave for which she is entitled to be reimbursed in accordance with existing regulations. The personnel ordinance controllir,g sick leave effecti'le at the time of her employment through May of 1970 provided for the accu~ulation of 1 day of ~.ick leave for each 30 days of employment or a total of 1.2 days per year. That ordinance further provided that sick leave could not be accumulated in excess of 120 days. In that Mrs. Vermilyea has been absent but 4 days during her entire per~oe of employment, and that at one time in 1969, by l962, Mrs. Vermilyea had·accunulated sick leave up to the 120 day maximum. In May of 1970, the Council of the City of Carlsbad by ordinance adopted a Merit Syster.i, which provided, tnter alia, for the unlimited ~ccumulation of sick leave, and that employees might be reimbursed for that sick leave at the rate of l/4th of the accumulated sick leave for an employee who had served at least 10 years, and 1/2 of the accumulated unused sick leave for·an employee who had served at least 15 years. While.the ordinance adopted in May of 1970 provided for the retroactive application insofar as.determination of probationary or non-probatiul'tary employees, it was silent as to whether the accumulation I i '' . NATALIE H. VERMILYEA -2-February s, 1976 of sick.leave should be appliea retroactively. Assuming that the ordinance did not apply retroactively, Mrs. Vermilyea would have worked for a period of 8 years, 1962 to )1.ay of 1970, accumulating no sick days. As indicated, Mrs. Vermilyea has applied for retirement effective March, 1976, and in conjunction therewith has requs:-,.,ed the City Manager to compute the amount of accumulated sick leave for which she is entitled to be reimbursed as of the date of retirement. The City Manager has determined that in that the.ordinance of ?,lay 1970 and the regulations adopted pursuant ·~hereto were silent as to the retroactive application concerning sick leave, Mrs. Vermilyea should not be entitled to an accUI!\ulation of sick leave during the period 1962 through 1970. Mrs. Vermilyea on the other hand, con~ends that any confusion existing as a result of the adoption of the new ordinance must be resolved in her favor and accordingly, the computation of her sick leave should be retroactive to the date of initial employment to the date of retirement. There are approximately 86 days in issue as a result of this · controversy. As indicated, the claim of Natalie Vermilyea was denied by the City Manager and appealed by Mrs. Vermilyea to the City's Personnel Board. At the hearing before the Personnel Board, Mrs. Vermilyea maintained that the ordinance of May 1970 ~ust be retr.oactively applied from both a legal and moral standpoint. The City Manager contended that the ordinance· did not call for f ---........ -----"-'\______.- ... NATALIE H. VERMILYEA February s, 1976 retroactive application insofar as the accumulation of sick leave was concerned, and accordingly, Mrs. Vermilyea must be found to have worked during the period 1962 through 1970 without accumulating additional sick days. The Personnel Board found for the appellant, stating that the ordinance must be retroactively applied and that the accumnlation of sick leave be computed from the initial date of employment to the date of retirement. Pertinent sections from the ordinance and rules are attached. : ~ By: ~~~-e:-_i? ~ NIHOLAS C. BANCHE I l ! 'f .I - 1952 -1970 SICK LEAVE ACCUMULATION RULE "(i) Accumulation of Sick Leave. Unused sick or accident leave may he accumulated at the rate of one day for each calendar month of service to a total not to exceed one hunnred twenty (120) work days." 1970 PERSONNEL ORDINANCE "2.44.070 Status of present employees. Any person holding a position included in the city service who, on the effective date '1 of the ordinance codified in this chapter shall have served con- tinuously in such position, or in some other position in the city service, for a period equal to the probationary period prescribed in the rules for his class, shall assume regular status in the city service in the position held on such effective date without qualify- ing test, and shall thereafter be subject in all rP.spects to the provisions of this ordinance and t~e personnel rules. Any other persons holding positions in the city service shall be regarded as probationers who ure serving out the balance of their probationary periods as presc~-:-ibed in the rules before obtaining regular status. The probationary period shall be computed from the first day of the first full calendar month after date of appointment or employment." l 1970 -1976 SICK LEAV~ ACCUMULATION RULE Section 5. ~ick Leave: "Sick leave with ;Jay shall be granted to all pfob;ltionary and permanent emplo7,'::!S within the merit system at the rate of one work day for each calendar month of service except those who work less than 1040 hours a year. Any such leave accrued but unused in any year shall be cumulative for succeeding years." 1970 -1976 SICK LEAVE PAYMENT RULE Section 8. Resignations: "An employee, who terminates in good standing after ten (10) years of continuous City service ori by death, shall be paid one-fourth (1/4) of his accumulated unused· sick leave. An employee, after fifteen (15) years of continuous City service, upon termination or retirement in good standing or by death, shall be paid one-half (1/2) of his accumulated unused sick leave. Payment for unused sick leave shall be computed on the highest average monthly base salary during any period of three conl'lecutive years during employment with the c::.ty.11