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Rehoboth looking at changes to personnel code

Employees stand to lose appeal power, gain quicker vacation accrual
January 25, 2019

Story Location:
229 Rehoboth Avenue
Rehoboth Beach  Delaware  19971
United States

Rehoboth commissioners are exploring an update to the city’s personnel policies that includes allowing employees to accrue paid vacation time more quickly. At the same time, the policy appears to strengthen the city’s right to terminate an employee, while weakening the termination appeals process.

The city’s labor attorney James McMackin of Wilmington-based law firm Morris James went over the proposed changes with the commissioners at a recent commissioners meeting Jan. 18.

The proposed changes bring the city’s policies in line with procedural due process law, while making the process more orderly and efficient, McMackin said.

For example, employees arrested and on leave pending termination shall be on leave without pay.

McMackin said if there’s a reasonable belief a person has committed a crime, this would allow the city to put them on unpaid leave. The alternative is to have an incarcerated individual on the payroll, he said.

Three new reasons for employee termination were added – absences without job-protected leave, improper conduct reflecting on the city, and performance.

McMackin said there’s also been a significant change in procedural due process. Currently, before an employee can be terminated, he said, they are entitled to a full-blown hearing before all the commissioners.

“That is not required by due process,” he said.

Now, McMackin said, the city manager will serve as hearing officer in a termination appeal, unless partiality or independence is questioned.

There was also new wording that says any employee who is a no-call, no-show for two consecutive shifts will be considered resigned, unless there were extraordinary circumstances.

McMackin said there have been situations where an employee just stopped showing up. He said an example of an extraordinary circumstance would be someone having a heart attack, and that person’s family forgetting to call the city.

One proposed change is related to worker’s compensation. The word accepted is added to the definition, which means, McMackin said, the city would be protected from someone receiving worker’s compensation who didn’t qualify. He said accepted work-related injury is defined in state code.

Not all the recommendations strengthen the city’s ability to fire an employee.

Full-time employees would receive two paid personal days a year, which do not carry over from year to year. They can be used at any time, with supervisor pre-approval.

Full-time employees would also accrue vacation time faster. Instead of having to wait until completing five years of employment to move from 80 hours of vacation time to 120 hours, an employee would have to complete four. There’s a corresponding decrease for the rest of the vacation schedule.

New wording says all department heads will receive up to four weeks of vacation time a year, up to 20 years, at which time the city manager will decide how much more the employee receives.

New employees would receive 3.33 hours of paid vacation per month in the first year. Currently, McMackin said, if an employee begins working for the city in January, that employee has to wait until the following January to get any paid vacation.

“That was viewed by many as being unfair,” McMackin said.

The city would also increase its contribution to employee retirement plans from a maximum of four percent of the employee’s base compensation to six percent.

There’s also the implementation of a social media policy, which McMackin said doesn’t infringe upon First Amendment rights. It is sufficiently narrow-tailored and linked to city interests, he said.

Committee resumes private meetings

It’s unclear how much city employees know about the proposed changes. After meeting in public for at least the last year, Mayor Paul Kuhns has decided the personnel committee will return to meeting in private even though it involves a quorum of the commissioners – Commissioner Toni Sharp is chair, with Commissioners Richard Byrne, Lisa Schlosser and Pat Coluzzi also on the committee also.

According to the city’s website the committee met at least six times in 2018 – once each in January, February, March, June, August and September – when the committee consisted of Schlosser, as chair, and former Commissioners Patrick Gossett and Jay Lagree.

Kuhns never publicly announced the change, and it was only discovered the committee had convened to discuss the personnel changes after City Manager Sharon Lynn said, during the Jan. 18 commissioner meeting, that a committee meeting had taken place Jan. 3. The meeting was not noticed on the town website.

Immediately following the commissioners meeting, Kuhns said he decided to have the committee meet in private because it often has to go into executive session to discuss individual employees. He also said the committee only had three members, which is not a quorum. The city’s website lists Sharp, Byrne, Schlosser and Coluzzi, which is a quorum of the commissioners that triggers an open meeting.

Kuhns did not respond to repeated attempts for comment after the Jan. 18 meeting.

In multiple emails since the Jan. 18 commissioner meeting, city solicitor Glenn Mandalas explained the change.

Mandalas said the committee does not have to meet in public because it does not formulate or execute public policy. It advises the city manager and functions as an internal administrative component of the city.

For years the committee did not conduct public meetings, and it was never an issue, Mandalas said.

“It was not anticipated that re-establishing a long-term past practice, that was only deviated from for a short period of time, would be something that needed to be addressed when the members were appointed,” said Mandalas.

At least one commissioner has questioned the committee meeting in private.

In an email Jan. 23, Commissioner Stan Mills said on the surface it would seem the committee needs to comply with FOIA especially as it is comprised of commissioners only. He said perhaps there are exceptions that allow this committee to meet out of the public eye.

“Regardless, I believe the optics of not meeting in public do not serve the public well,” said Mills. “I see no harm in making these committees meet in public. Rather I see a lot to be gained through public observation and public input.”