Sick leave bank ordinance in limbo after winding path


When Annapolis Alderman Sheila M. Tolliver introduced legislation in March to allow city employees to share sick leave in serious circumstances, she said she thought she was filling an oversight and did not expect much controversy.

But the measure to allow the creation of a sick leave bank - similar to ones in several municipalities and counties, including Howard - has turned into one of the strangest debates of the summer. It was amended, it failed, it was reconsidered, reamended close to its original form, passed and then declared "void" in a memo by the city attorney.

Though most involved - including Mayor Dean L. Johnson - say the city attorney, Paul Goetzke, has no power to void a law, Tolliver and other council members say they are unclear what the administration's plans are for the ordinance.

Johnson said he has no plans to publicize the law he opposed, and the heads of three of the city's four unions said they were unaware that such a law had passed.

In a memo distributed to the council last week and obtained by The Sun, Tolliver and Alderman Louise Hammond challenge Goetzke's assertion that the law conflicted with the city charter. The memo also aims to push the administration to work "expeditiously and in good faith" with employees to implement the law.

Tolliver said she felt the memo was needed so those who opposed the plan could not use Goetzke's memo "to stand in the way of the law." Tolliver contends that the mayor frequently does not promptly implement laws that he does not favor.

Johnson, who opposed the measure because he said it was never requested by employees, could cost the city too much money and is a benefit that should be negotiated with unions, said he has no plans for the legislation. He said he doesn't plan to challenge its legality, nor does he plan to instruct his staff to inform employees of their right or work with employees to establish the sick leave bank.

He said "no action is required" because the law contains no reference to a role of city staff.

But some council members, including Alderman Ellen O. Moyer, disagree.

"If there is a law that is passed that affects the employees, you have to let them know," she said.

The measure originally put responsibility for forming and designing the sick leave bank in the hands of city employees. Under the legislation, the employees would be able to donate some of their accumulated sick leave to a bank, which they could draw upon if they exhausted all other forms of paid leave because of a serious accident, illness or surgery.

At the July 10 city council meeting, amendments proposed by Alderman Herbert H. McMillan passed. They put the director of the city's Human Resources Department in charge of establishing the program rules.

That move caused Moyer to switch her vote from yes on the preliminary second-reader vote to no on the final vote, she said. The legislation failed. Moyer said she also wanted the chance to talk to employees to see whether they favored the measure.

Two weeks later, at the city's public hearing and special legislative session, Moyer asked to reconsider the legislation by switching her final vote. She proposed amendments that passed, bringing the legislation closer to its original form, with employees again responsible for designing the procedures.

With two aldermen absent - Samuel Gilmer and Michael W. Fox, who voted for and against the measure, respectively, July 10 - the measure passed July 24.

McMillan, who sharply criticized the legislation, noted for the record that he was voting in favor of the measure on the final voice vote. He then said he'd pull the same move Moyer had and bring up the legislation at the next meeting by switching his vote.

But at the next meeting, he did not move to reconsider the vote because his earlier amendment, which required the bank procedures to come before the council for approval, was still in place.

With the law on the books, Goetzke drafted a memorandum Aug. 3 in response to an unnamed request addressing the legislation's consistency with the city charter.

Citing a clause that provides that the Human Resources Department shall "administer certain other activities related to the payment, benefits, training, discipline and retirement of city officials and employees," he recommended that the city again amend the law to put the human resources director back in charge of establishing the sick leave bank, or amend the charter.

He then declared that the law is "void and unenforceable in its present form."

Goetzke has been out of the office since an accident Aug. 10 left him hospitalized.

Kimla Milburn, human resources director, said last week that she believed the law was "still in limbo, pretty much, until the legal issue is resolved."

"My position is to wait for instructions from the Office of Law and the administration" before informing employee groups or taking any other action toward a sick leave bank, she said.

But according to Johnson, those instructions will not be given.

"If [council members] wanted me to do that, why did they specifically take the staff out of the ordinance?" he asked. "The city conducts all of its business fully in the public realm."

The presidents of three of the city's four unions who could be reached for comment said they had either heard about the proposal only while it was still before the council or had not heard of it.

Although they were split over whether they support it or were concerned that the city had instituted a benefit that they had not negotiated, none was aware that the law was in effect. The head of the city's police union could not be reached for comment.

Tolliver said that although the law does not specifically require the administration's participation, "as a practical matter it needs the administration's support."

Ideally, she said, the Human Resources Department would convene an employee group or invite employees who are interested in setting up the sick leave bank to meet.

"Inaction in itself is an action to evade the law," Tolliver said.

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