A retraction and an apology to Councilman Sepulveda.
In reading the Municipal Code today while conducting research on the recall elections, the part about filling vacancies really leaped out at me with regard to Councilman Sepulveda's situation last year.
Reading Section 2.06, paragraph d, again:
Hence, by law and by the Council's own agreement, Councilman Sepulveda was perfectly within his rights to continue to serve the council while recalled to active duty and to continue to receive his paycheck for doing so. It was a clear mistake by City Manager Pentz (and City Attorney Michael House who ostensibly advised him) to discontinue Sepulveda's council salary.
Now, I had suggested in an earlier comment that I thought it was inappropriate for a Councilman called to active duty for several months to expect to be allowed to remain on the Council and suggested that his "phoning it in" was unacceptable. However, after my research, I realize that my earlier comments were flat wrong and I hereby retract them.
Furthermore, Councilman Sepulveda, I apologize to you for those comments. I'd like to thank you sincerely for your continued efforts to serve our City, as endorsed by the law and by our City Council, even while on active duty in Iraq.
Reading Section 2.06, paragraph d, again:
(d) Temporary Vacancies; Active Duty Military. In the event a councilmember, including the office of mayor, receives military orders for active duty and the period of active duty is projected to last at least four (4) months but less than the remainder of the councilmember's term, the councilmember's office may be temporarily vacated as set forth below. If a councilmember is unable to attend meetings either personally or telephonically, the council by a majority vote of its remaining members may appoint a qualified person to serve until the councilmember returns from active duty or until the councilmember's term expires, whichever occurs first.Key points here: Sepulveda was recalled to active duty for more than four months, but he maintained telephonic attendance of the Council meetings. And the Council never, by majority vote of its remaining members, chose to appoint a temporary replacement pending his return.
(Added 9-12-00)
Hence, by law and by the Council's own agreement, Councilman Sepulveda was perfectly within his rights to continue to serve the council while recalled to active duty and to continue to receive his paycheck for doing so. It was a clear mistake by City Manager Pentz (and City Attorney Michael House who ostensibly advised him) to discontinue Sepulveda's council salary.
Now, I had suggested in an earlier comment that I thought it was inappropriate for a Councilman called to active duty for several months to expect to be allowed to remain on the Council and suggested that his "phoning it in" was unacceptable. However, after my research, I realize that my earlier comments were flat wrong and I hereby retract them.
Furthermore, Councilman Sepulveda, I apologize to you for those comments. I'd like to thank you sincerely for your continued efforts to serve our City, as endorsed by the law and by our City Council, even while on active duty in Iraq.
posted by Geo at 4:24 AM
11 Comments:
I think you should reconsider your analysis. The controversy is not whether Mr. Sepulveda was entitled to remain a member of the council, but whether or not he should be paid for doing so while on active duty. According to city policy, Chandler will pay 30 days of full salary, and after 30 days will make up the difference between an individual's city salary and the individual's military salary IF THE CITY SALARY IS HIGHER.
Although we do not know exactly Mr. Sepulveda's military salary, he has the rank of Commander, and it is almost certain to be higher than his council pay ($1,125 per month). Thus there is no need for Chandler to make up the difference, because there is no difference.
After he complained, the council on August 25, 2005, passed a resolution (#3893) to authorize Mr. Sepulveda's full council pay. Note that this resolution applied ONLY TO MR. SEPULVEDA. Other Chandler employees who are called to serve WILL NOT GET THIS SPECIAL TREATMENT and be able to "double-dip" the full amount of their city and military pay.
If we want to support our citizens who serve, then we need to apply this policy to all Chandler city employees.
It is interesting to note that, having perused the council minutes, I have not seen any effort by Mr. Sepulveda to make his special exception apply to all city employees.
That's very interesting, cw.
I'd be happy to peruse the policy and resolution you mentioned. Could you point me to the city policy you referenced in your first paragraph?
Thanks for your comment!
Yours,
Geo
One quick thought, though, that comes to mind.
Most Chandler employees can't continue to actually DO their job while called to active duty overseas. So it makes sense for them NOT to be still paid a salary while they are NOT able to keep doing their Chandler job.
But the Municipal Code specifically permits City Council members on active duty to do their Council job via telephonic attendance at the meetings. Hence, if the Council member is permitted by law to maintain full participation in this way, there seems to me to be no reason to cap, or otherwise limit, their ability to be paid for doing that job based on their income as an active duty soldier.
Indeed, it seems to be the equivalent of any Council member who has a full time job but still maintains attendance at the Council meetings. There is no precedent to prorate their Council salary based on their income from their other full-time job. If there were, then surely Mayor Dunn wouldn't be getting a city paycheck, either.
Of course, I'm very interested in taking a look at the specific policy you mentioned, though.
Yours,
Geo
Arizona State Law (ARS 26-168 part C) notes that employees of the state (or any political subdivision, i.e., cities) are entitled to 30 days of full pay when called to military duty. See http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/26/00168.htm&Title=26&DocType=ARS
After that, the state mandates no pay benefit. The City of Chandler, in 2001, proposed that city employees called to active duty receive benefits to MAKE UP THE DIFFERENCE between military pay and city pay. I cannot find the actual, word-for-word city policy online, however, an accurate description of these policies and changes are in the council minutes:
October 4, 2001, Item 29:
A policy amendment is proposed to make up the difference between city and military pay for 60 days following the 30 days of pay mandated by Arizona statute. "Since many reservists have already used all or a portion of the 30 days, Staff recommended that military pay be extended for an additional 60 days. This pay will make up the difference between what the employee is receiving in military pay and their regular gross pay. Employee’s election of vacation leave and eligibility for vacation donations as outlined in the Personnel Rules and Policy would remain in effect."
Thursday November 25, 2001, Item 21:
The policy amendment is approved. In this final approved version, the differential pay benefit is 24 months instead of 60 days. In any case, it is again clear that "This pay to make up the difference in military pay and regular gross pay."
Minutes to Chandler City council meetings can be found at http://www.chandleraz.gov/default.aspx?pageID=30
The question as to whether Mr. Sepulveda fully executed his complete council duties while away is a separate question. You raise a good point--if he can complete his councilmember duties telephonically, then he should receive his full pay. But did he complete his full councilmember duties? I do not know when Mr. Sepulveda left on military leave, but on June 9 Mr. Sepulveda was listed in the minutes as attending telephonically, as he was on June 23 and July 25. He is absent, however, for all subsequent meetings until February 23, 2006. In other words, he missed 14 regular council meetings and 4 special meetings, for a total of 18. So if we assume he went on military leave on June 9, he was able to telephonically attend only 3 of 21 meetings, or 14% of them. Given this, I do not think it can be argued that he was able to fulfill his councilmember responsibilities while on military duty. Thus he should have been treated according to the State's and the city's military leave policies. Instead, he felt he deserved special exception to the city's policy, which is what he got.
CW is right--the issue is his pay. I'm posting something my military spouse emailed the Mayor, Council & City Attorney when the issue of Mr. Sepulveda's salary came up (also posted on Chandler Independent's forum). As you can see, it is is well documented--everything can be verified in meeting minutes and government/military websites. Apparently, they weren't worried about the potential legal ramifications he outlines (nothing came of it), but at the *very* least, it's just plain tacky on Sepulveda's part to expect to get more than regular city employees. My spouse and I think he's an embarrassment.
Here's the snippet:
Prior to November 11, 2001, City of Chandler employees that were called to active military duty were treated in accordance with Arizona State Statutes and http://www.osc.gov/userra.htm). The Arizona State Statutes provide for employees to receive a leave of absence for up to 30 days in a consecutive two-year period without loss of time, pay or efficiency rating on these days.
In response to the events of September 11, 2001, the City Council on November 15, 2001 authorized the City to extend military leave pay for a period of 24 months after the employee's 30 days of full pay has expired. The pay is equal to the difference between the employee's military pay and their regular City pay. This is a good measure to support our citizen-warriors who hold civilian and reserve military jobs, especially when their military job pays less than their City job. This policy, Active Military Reservists' Benefits, was extended for two years at the Council meeting on March 24, 2005 (Item 11: http://www.chandleraz.gov/PDF_Upload/2005total.pdf ) with Council Member Sepulveda in attendance.
Based on this post 9-11 standard for City employees, Council Member Sepulveda should be paid his full City wages for the first 30 days of duty, and then paid the difference, if his military wages are less than his City wages. It appears they are not: based on the Defense Finance and Accounting Service's Complete Active Duty Pay Tables ( http://www.dod.mil/dfas/militarypay/2006militarypaytables/militarypaypriorrates/paytable2005-rev1.pdf ), Council Member Sepulveda will earn approximately $8945 per month, which includes his base pay (estimate based on 18 years of service at the rank of O-5, Commander ($6631), Hostile Fire/Imminent Danger pay ($225), Basic Allowance for Housing ($1405), Family Separation Allowance ($250), Basic Allowance for Subsistence ($183.99), and Combat Zone pay (approximately $250). Also, the federal government allows much of a service member's pay to be exempt from federal taxes during their time in a war zone http://www.irs.gov/newsroom/article/0,,id=101262,00.html ). Council Member Sepulveda is paid approximately $1125 per month by the City of Chandler for his service on the Council (according to the Arizona Republic), far less than his military salary.
The policy of paying the difference is to help military reserve members who will take a 'hit' when called to serve. Now that the City Council plans to change the policy for Council Member Sepulveda so that he receives his regular salary, this benefit also must be extended to all of the military reserve members employed by the City. Regardless of the cost or principle, it's the law, as USERRA requires an employer to treat all employees equally. Not doing so could open the City to legal action.
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I think the Commander pay is really supposed to be $6613, but that's based on a conservative estimate of 18 years--I think he has over 20, so the pay would be much more.
P.S. He WAS in Iraq, not doing his Council duties. There is no issue of whether he was working or not. He was not.
I very much appreciate these comments. From what you're saying, there are two issues that this seems to turn on, to be able to move forward in thinking about this:
1. Does the Chandler employee policy specifically apply to Sepulveda, given that there is specifically controlling text in the Minucipal Code which governs City Council members?
2. Was Sepulveda actually carrying out the requirements of his Council job while in Iraq?
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Addressing the first, I'm not sure I can make the leap. I know, it seems simple enough: aq City Council member is an "employee" of Chandler, so a cursory look at the polcy would seem to apply.
But I'm not sure that it does. The Charty sets forth specific parameters under which a City Council member, even while on active duty, can remain actively, fully involved of the City Council. There is no similar provision for any other "employee" of the City.
Furthermore, I cannot imagine of any other employee, from secretary to garbage collector, who could practically continue to do their city job while on active duty overseas. Yet, this is quite possible for a Council member, assuming they meet the provisions set forth in the Charter.
So I'm not sure that the policy being quoted either legally or practically applies to City Council members.
And though many have decried the "special privilege" implied here, I'd simply note that the City Charter STIPULATES a special privileged status for Council members in the way that it carves out specific, controlling legislation for them. This is hardly something that Depulveda introduced either into our municipal reality or into the law.
The simple fact is, City Council members are not treated, by law, the same as other city employees, nor practically should they be.
So, if Sepulveda was able to continue to act as a regular member of the Council, per the parameters set forth in the Charter, then he's entitled to be considered a fully active member (following paragraph "D" which specifically controls for Council Members recalled to active duty).
Thus, I can interpret Resolution (#3893) in light of being the Council's attempt to clarify this for the record and set to rest any lingering questions on how they viewed the merits of Mr. Sepulveda continuing to receive his Council pay. If they believed as I have posited here, then this resolution simply clarified that question.
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2. The other question raised is rather more troubling, to me. Namely, while Mr. Sepulveda was on active duty, was he indeed engaged in his Council responsibilities per the parameters of the Charter?
From the Minutes chandlerwonk quotes, it sounds as if Sepulveda was NOT regularly participating telephonically in the Council meetings, then he definitely triggers the provision in paragraph "D" in my post:
If a councilmember is unable to attend meetings either personally or telephonically, the council by a majority vote of its remaining members may appoint a qualified person to serve until the councilmember returns from active duty or until the councilmember's term expires, whichever occurs first.
However, this raises two more thoughts.
a. Are the minutes accurate in reflecting Sepulveda not present telephonically? It's conceivable that they are not, but unlikely. I'd tend to take the omission of reference to Sepulveda as indicative that he was absent.
b. The controlling text actually says that "the council by a majority vote of its remaining members may appoint..." (emphasis added). This "may" means a lot. It means that the replacement of a Council member who is regularly absent due to being called to active service is not automatic. It still lies at the discretion of the Council to choose to appoint a replacement.
Sepulveda himself recommended a replacement (see this article, brought to my attention by A.M.), someone he knew and trusted and who has served as a former Mayor. So it's clear that Martin wasn't trying to retain his position on the Council or line his pockets.
Yet the Council rejected Sepulveda's recommendation as well as every other possible applicant who might have served to fill the temporary vacancy.
This brings me to the following:
It seems that Sepulveda was not maintaining regular telephonic participation in the meetings. This triggers the Council's prerogative to find a replacement if a majority chose. Sepulveda himself recommended one, but the Council rejected that recommendation and chose no one else, either. Hence, by law, Sepulveda remained on the Council while he's overseas.
And based on my interpretation of the Charter as carving out specific parameters for Council members on active duty, Idon't think the more general policy related to "employees" and their salary subsidies could be said to directly apply.
I recognize that this is a gray area, but I think it's a gray area in which well-intentioned, reasoning minds might legitimately disagree. So, until I hear an argument that settles this firmly or have a better understanding of all of this, I will stand by my retraction of earlier criticisms.
However, I will be inclined to follow up with Councilman Orlando when we speak on whether he feels the city was appropriate in retaining Mr. Sepulveda on the Council even when he was unable to participate even telephonically in the meetings. That definitely raises a question in my mind, as all other things being equal, I probably would have been inclined to appoint a temporary stand-in who COULD be more actively involved.
Wow, I really ought to have previewed that comment.
Sorry for the typos.
-Geo
I agree that there is a gray area since there was no replacement appointed, however, the spirit of the law seems to be what CW and AM are pointing to, and what I frankly agree with. If the argument for continuing his military pay is due to technical compliance with applicable law rather than the spirit of the law, AT THE LEAST this was a badly communicated and badly justified policy. I'm not going to stand by my retraction and give cover based on a technicality. I'll be very interested to hear Orlando's take on this when you talk to him.
Article about the meeting where the Council restored his pay, FYI: http://www.azcentral.com/community/chandler/articles/0827cr-sepulveda27Z6.html
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