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i. Ordinance 1727 superseded Ordinance 1120 and is regarded by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