COUNCIL OF THE CITY OF PHILADELPHIA JOINT COMMITTEES ON LABOR & CIVIL SERVICE AND PUBLIC SAFETY - - - Thursday, June 16, 2005 9:45 a.m. - - - Room 400, City Hall Philadelphia, Pennsylvania - - - RES. NO. 050537 - A Resolution authorizing City Council's Committee on Labor and Civil service and The Committee on Public Safety to hold public hearings to make inquiries and investigations relating to the reemployment rights of City employees who return from active duty. - - - PRESENT: COUNCILMAN JUAN F. RAMOS, Chair COUNCILMAN DONNA REED MILLER, Chair COUNCILMAN W. WILSON GOODE, JR. COUNCILMAN JAMES F. KENNEY COUNCILMAN FRANK RIZZO COUNCILMAN MICHAEL A. NUTTER COUNCILMAN RICHARD T. MARIANO COUNCILMAN BRIAN J. O'NEILL - - - V A R A L L O Incorporated Litigation Support Services 1835 Market Street, Suite 600 Philadelphia, PA 19103 (215) 561-2220 2 RESOLUTION 050537 - 6/16/05
Good morning, everyone. This is a hearing of the Joint Committees on Labor and Civil Service and Public Safety. I will ask the clerk to please state the number of the resolution.
Resolution 050537, resolution authorizing City Council's Committee on Labor and Civil Service and the Committee on Public Safety to hold public hearings to make inquiries and investigations relating to the redeployment rights of city employees who return from active duty in the National Guard and Reserve components of the Armed Forces of the United States.
For the record, I will note that present at this hearing is the Chair of the Committee on Public Safety, Donna Reed Miller. Also with us Councilman Goode; to my left, Councilman Rizzo and Councilman Kenney. Will the clerk please call the names of the first panel.
Chris McCormick, Rich 3 RESOLUTION 050537 - 6/16/05 Brown, and Jim Bonner.
Good morning, officers. Please proceed with your testimony, please state your name and your department. And I see you are not wearing -- are those Fire Department uniforms? It doesn't seem that way.
Richard Brown, with the Philadelphia Fire Department, also with the Air National Guard. To my right is Christopher McCormick; to my left is James Bonner, the same situation as me. We wanted to thank City Council for your concern and for your interest in this situation. We were deployed twice now for a total of two years, two different times, sent to the desert, returned, and were given the opportunity to take the promotional exam. At which time we -- the city drug their feet on giving us the second part. 4 RESOLUTION 050537 - 6/16/05 When we finally did receive it, our scores were high enough that we should have been promoted in the first batch of lieutenants. That became a struggle, also. We were just recently promoted, and we want to thank you for that. However, we haven't been made whole as the USERA law states. We should have been entitled to our seniority, our back pay, and that's about it. But we wanted to thank you for taking the time to hear us.
Thank you. Any of your colleagues care to testify for the record?
My name is James Bonner. I would just like to say thank you very much. Rick Brown pretty much summed it up and speaks for everyone. MR. CHRISTOPHER McCORMICK: Christopher McCormick. Again, thank you very much. The situation that we are concerned with isn't really involving ourselves. We are 5 RESOLUTION 050537 - 6/16/05 concerned for all the servicemen and women that work in the city, those that have been deployed before, those that will be deployed in the future. When they come back, we are concerned that their rights get observed the way it should be, the way that the laws are written out. And we have had this difficulty with our situation. We're very interested in trying to make sure that the appropriate patches get in place so that this kind of situation doesn't happen to all our returning vets.
Thank you for your testimony. For those of you joining us, this is a Public Hearing to make inquiries and investigate the redeployment rights of city employees who return from active duty in the National Guard and the Reserve components of the Armed Forces of the United States. Please correct me if I have this wrong. You three gentlemen are firemen, you were slated for or on a list for promotion. 6 RESOLUTION 050537 - 6/16/05 Am I doing good thus far?
And after you were put on the list for promotion, you were called into service by the armed forces; is that correct?
No, sir. We were already deployed when the list -- or, when the test was given. We had to take it at a later date.
And then what subsequently happened? You came back home, and what did you find out?
The current Commissioner, Commissioner Ayers, at the time was Deputy Commissioner, put a memo in letting the city know that we would be deployed and eligible for the test when we came back. It was through his actions that we were able to take the written portion of the exam. That was in April of 2004. Normally the oral exam follows about two months later. In this case it didn't 7 RESOLUTION 050537 - 6/16/05 happen until February of 2005, at which time we were given our scores and should have been placed on the list of the 70 that were already promoted. Instead, the city's decision was to put us on the next list, or make us No. 72, 73, 74, 75, when in fact I finished No. 6, the gentlemen on either side of me finished No. 12.
Since then, you have been, in fact all three of you, correct me if I am wrong, have gotten your promotion; right?
So it took a little longer than it probably should have. But, nevertheless, today you have gotten your promotion. Can you tell us to what rank you were promoted to?
Fire lieutenants. 8 RESOLUTION 050537 - 6/16/05 Congratulations.
We are proud of you for all that you do for us a firefighters but also for serving our country in such difficult times. I would ask if any members of this committee would have any inquiries on these three gentlemen. Councilman Kenney.
Thank you, Mr. Chairman. First, again, I would like to echo Councilman Ramos' comments relative to your service both to the country and the city, and I am happy to see you have been promoted. I think the record needs to be very clear, and I am confident that Local will 20 follow through with making sure that the 21 seniority, benefits, and back pay. 22 I mean, it is important that they were promoted; but they did miss out and are missing out on economic issues relative to their promotion. 9 RESOLUTION 050537 - 6/16/05 And I am glad Councilman O'Neill is here, because I know he was at the forefront of trying to make sure this happened. And I want to thank him for all his involvement and the efforts on behalf of the four of you, but the three of you that are here today. Councilman O'Neill, you and Local 9 I am confident will make you guys whole. And 10 thanks, again, for your service. 11
I think we have a 14 couple of questions here for this panel. 15 I recognize Councilwoman Donna Reed 16 Miller. 17
My good 18 morning and congratulations. 19 Can you explain the retroactive pay? 20 Does it work sort of like jury duty, you make 21 what you make and then the city still is 22 obligated to pay you the balance? MR. McCORMICK: I am not qualified to answer that. I really don't know. I would let my counsel clarify this a little further. 10 RESOLUTION 050537 - 6/16/05 But I think, in a nutshell, the USERA law basically says that a military member who is deployed, when he returns, has certain rights and he should be included as if he were not sent for service. He should not be penalized for his service. So when he comes back, those rights are observed. And that is part of the problem with our situation. Is that in every step of the way, we have had to make active and insistent inquiries to make sure that this process has been continuing. Nothing has been automatic, and everything has been on our efforts. We have had to push this cart the whole way.
Thank you. I am really sorry that you have had to struggle just to get treated equal and fairly. So we just need to have a better understanding. MR. McCORMICK: That's half the fun.
I recognize Councilman Mariano and Councilman Brian O'Neill has joined us. Councilman O'Neill. 11 RESOLUTION 050537 - 6/16/05
I just want to first thank the Chairmen of the joint committee, Councilwoman Miller and Councilman Ramos. They scheduled this hearing very quickly in a very tight schedule near the end of our session, not knowing that this was mostly going to be resolved, the main part of it would be resolved, by the time we had the hearing. So I want to thank them. And I just wanted to ask you a question. I know a lot of people are confused on this, and I think there is a clear answer. When you go overseas, when you go into active duty, you take a great personal sacrifice financially. MR. McCORMICK: Yes.
Could you just comment on that. I think a lot of people think the city just pays the difference. I think Councilwoman Miller was mentioning jury duty. Some employers make up the difference between the jury duty pay and their salary. 12 RESOLUTION 050537 - 6/16/05 And in terms of the military, even in war, I don't believe we do that; is that correct?
You are right, Councilman. I know, serving with other people who are civil servants around the country, they are much more gracious. One thing we have proposed, I believe through your office, before was, our pensions suffer when we are away. When we return -- we are given a stipend fund while we are away, our families are given that. It pretty much helps pay for our pension when we return to the city service. That's one thing I would ask, if you could look at anything, could you carry our pension during the time we are on active duty. That's one thing I would ask City Council, if that's possible. We did lose two years on either side. I lost two and a half years in my deployment.
And that may be 13 RESOLUTION 050537 - 6/16/05 something we can work with the local, firefighters local and their attorneys, to rectify. Councilman.
Thank you, Councilmen. Gentlemen, I am not going to count the stripes, but I guess most of you are senior airmen, so that makes you about E5, E6.
When you are on active duty, how much does an E6 make?
So, basically, one of my staffers is an E6, he got deployed, he is in the Army. And I think he will get deployed again. He is an attorney in civilian life. He makes decent money. If he wants to as an attorney, he probably makes $50,000, City Council we will say. He was in Iraq for 14 RESOLUTION 050537 - 6/16/05 out months, he is probably going back. And I know City Council, it was easy for me to talk to Council President and say, "Look, Pat doesn't miss anything when he is gone." His family got a stipend of some money, his insurance was carried, and he was okay. But I think what I am getting here is, the difference between your E6 pay and your fireman pay is $25,000.
Roughly. I know Councilman O'Neill's secretary, her husband is a chief inspector for the police department, that's -- he is an E5 in the service. Yes, sir.
So in some jurisdictions in this country, bigger city, smaller cities, maybe with different budget deficits they have or don't have as compared to this city, they would make up that difference of, say, $25,000.
Now, if I understand what you guys are saying, and it 15 RESOLUTION 050537 - 6/16/05 should be done, my opinion, if you go anywhere, if you are in combat or not, or you are in a combat zone, next time you take a test, you should probably get some points for that, too. Combat veterans get points, people who are deployed get points, maybe not as much as a combat veteran. I don't know if we can get to the point where we can make $25,000 up for every one of you. In a perfect world, it would be. They should at least cover the two years you are deployed for your pension, so you don't miss the gap in your pension. That's your main concern; correct?
Yes. I believe I can speak for the gentlemen on either side of me. We volunteered to go both times. We are not crying poor or anything like that, but it would be nice to have our pensions made whole. I would do it again, and I know they would too, knowing it does bring hardship on your family.
But you are a real American, and we appreciate that. But 16 RESOLUTION 050537 - 6/16/05 the hardship on your family should be supplemented by those of us that can't go some how, some way. So come September I promise you, and I am sure everyone up here understands -- we are finding out slowly. It looks like the Commissioner, when he found out what happened, he jumped right onto it because of the Councilpeople on this committee that asked about you. But there needs to be other things. There are policemen that are going away that might have the same problem. There are other City Council -- Councilman Cohen has a guy that worked for him that's deployed and hasn't been back for a year. It is my understanding from the people I know that are still active in the military and in the Reserves, the pool of people are so small, if you got deployed once, you are probably going to get deployed again within the next two years. I'm not sure how the Air Force works. But I know in the Army, you don't have 17 RESOLUTION 050537 - 6/16/05 a choice. If you are in the Reserves, you are going again. Maybe twice in three years.
It is the price you pay for being a qualified individual. We wouldn't have it any other way.
We thank you. And I promise you if there is anything I can do -- and I am sure everyone up here feels the same way -- that we can try to somehow get that gap where you don't lose $25,000, that would be great. But if we could at least get you pension credits, that should be something we should be able to do. Thank you for everyone. Thank you for myself. Thank you for my family and everyone in the City of Philadelphia. Keep up the good work.
This was a unanimous resolution. I will make sure I work over the summer on the benefit issue. And I thank Councilman Mariano for really going into it in detail. Thank you. 18 RESOLUTION 050537 - 6/16/05
Are there any other questions from this committee for this panel? Seeing none, thank you so much and keep up the good work that you do.
Would the clerk please call the names of the next panel.
Good morning. Please state your name for the record, please, and proceed with your testimony. MR. BRIAN McBRIDE: I am Brian McBride, President-Elect of Local 17 International Association of Firefighters. 18 Honorable members of Council, 19 brothers and sisters of Local 22 members, and 20 fellow citizens, we come before you today in 21 this great city, this the cradle of liberty, 22 where our courageous forefathers fought for our country and our rights. Over the years, laws have been developed to protect the rights of men and 19 RESOLUTION 050537 - 6/16/05 women who place their lives on the line in service to this United States of America. We stand here with three and four courageous men who not only served this great nation in the military, but also in this city honorably as firefighters. We all recognize that the Fire Department has given these men their just promotions to lieutenant, and we thank the Fire Commissioner for seeing to this. But this battle is not just about these four patriots; it is for all the brave men and women who selflessly give of themselves in every work to both country and city. Their promotions were the first step in the process. They are entitled to seniority as lieutenants, back pay, proper pay grade, and pension, that would be if they had not left to serve this country. Local 22 will stand with these brave men and with all veterans who serve this city and this country, as it is our duty to protect their rights. 20 RESOLUTION 050537 - 6/16/05 I am urging this Council and our Mayor to respect the USERA laws without further delay and honor these men who have served with us with honor just as our courageous forefathers would have expected us to do. Thank you.
Does the person that's accompanying you care to testify, as well? Please proceed and state your name.
My name is Nan Lassen. I am General Counsel to Local 22, and I also am a member of the firm Willig, Williams & Davidson. Willig, Williams & Davidson doesn't just represent the Philadelphia firefighters. For those of you who know our firm, we represent city employees from sanitation workers to firefighters, mechanics to social workers. And all across the City of Philadelphia, the employees of the city are part of the United States military. They serve honorably, they some back to their employment in the City of Philadelphia. 21 RESOLUTION 050537 - 6/16/05 The real story here from Local 22's perspective and on behalf of all the rest of those employees is that this isn't let's make a deal. This isn't a situation where the noble volunteer and serve honorably and are treated justly and appropriately by their country, and then come back to employment in the City of Philadelphia. And, like these three men and the other fire lieutenant who couldn't be here today, Joe Farrell, they have to beg for a year to get what federal law undisputable, indisputable entitles them to. The Uniformed Services Employment and Reemployment Act operates under something called the escalator provision. And that means that wherever you would have been when you went away, as if you had been in active service for the entire duration, active service with the city for the entire duration of your military service, you are entitled to those benefits. What happened in this case is that, 22 RESOLUTION 050537 - 6/16/05 when our four firefighters came back, they had to literally advocate for themselves to anybody who would give them an ear for a year just to get promoted to lieutenant. Did they get promoted to lieutenant? Yes. As Councilman O'Neill has pointed out, they did get promoted two weeks ago. But have they been promoted effective the date that their promotions would have and should have been made had they been in service, which was last August, August of 2004? No, they don't have that seniority, they don't have that back pay, they don't have those pension credits. Our concern on behalf of Local 18 and on behalf of our members, bargaining unit 19 members, who are city employees, is that the 20 City of Philadelphia as a policy matter -- and 21 this is why we have brought this to City 22 Council -- as a policy matter, other cities around the country have an Office of Military Liaison, they have a military personnel office that doesn't require returning heroes to beg 23 RESOLUTION 050537 - 6/16/05 for their rights. They have an office that goes to returning military personnel, knows when military personnel are returning to city service or municipal and government service, meets with the departments, identifies what rights they are entitled to, and confers those rights upon them. I didn't come here today and I know Brian McBride didn't come here today to talk to you about the law or litigation or the demands that we have made on the city to address the specific rights of these four individuals. We came here today to plead with you as a policy matter to look more systematically at the needs of military service people in the City of Philadelphia whether they pick up the trash, whether they put out the fires, whether they are police officers or social workers, to look more systematically at the needs of our military personnel and to create a policy in the City of Philadelphia where our city -- and I am a city taxpayer proudly -- where our city 24 RESOLUTION 050537 - 6/16/05 reaches out to them and doesn't force them to come back and beg for a year and be treated less honorably than our government treats them. Thank you very much.
Thank you, Council. We hear you loud and clear, and we will definitely look into this situation. And since we are talking about promotions, I want to take this time to congratulate Mr. McBride's elevation to President of Local 22. And it looks like you got started on the right track defending your members. And congratulations and look forward to working with you. Any questions for this panel? Councilman Kenney.
Thank you, Mr. Chairman. Mr. McBride or Ms. Lassen, could you tell me what, if any, legal fees have been accumulated as a result of this particular case? And, Nan, could you give me some idea as to what maybe some of the other locals have 25 RESOLUTION 050537 - 6/16/05 spent, if anything, on not full litigation, but on having to do this with lawyers, as opposed to doing it with the Administration?
Well, on this individual matter, frankly, Councilman Kenney, I'm not certain what the fees are. But I think you have wisely pointed out that the alternative to the City of Philadelphia addressing this issue as a policy matter and in a more systematic way is that the USERA Act does provide for private rights of actions for ant affected military members. And for willful violations, there are multiple damages. The entity that violated the act is also liable for full attorneys' fees and costs of the parties that commence that litigation.
Would it not make sense, then, for your firm to file suit against the city on behalf of all of the active returning and active city employees? And I guess that would be a federal action? That would be an action in Federal Court? RESOLUTION 050537 - 6/16/05
That may seem to be the quickest way to get this Administration's attention on an issue like this. Certainly what we are doing here is important. And I know it will be promulgated in the media and people will agree that it is the right thing to do to treat them appropriately, as opposed to making them beg and plead. But I think if you march down to 6th and Market and file a federal lawsuit, perhaps that might get their attention a little quicker than normal.
As litigious as this Council has been with this Administration, I would suggest you leave here this morning and go down to 6th and Market and file it, because that may get it resolved.
The honest answer is that we will do what we have to do. As we 27 RESOLUTION 050537 - 6/16/05 represent numerous city unions and employees throughout the city, we have tried, as we always try, to amicably resolve this dispute with the city. Yesterday I hand-delivered to Mr. Diaz, Acting City Solicitor, a very comprehensive legal position statement and demand letter on behalf of these four firefighters. We certainly will give the city an opportunity to step up to the plate with them and resolve this particular dispute without resorting to litigation. If that doesn't work, then we will do what we have to do, honestly, for them and for any other city employee.
Good luck. But I think Market Street may be the way to go.
Thank you, Councilman Kenney. Any other questions from this committee for this panel? Thank you very much. Is there anyone here that cares to 28 RESOLUTION 050537 - 6/16/05 testify on this resolution at this time? And if so, please come forward. Seeing none, thank you all for coming and being part of this very important hearing on this resolution concerning our employees that go off to war and their rights when they return when it comes to compensation, promotions, and so forth. And I will recess this to the call of the Chair. Thank you so much. (Public Hearing adjourned at 10:09 a.m.) - - - 29 C E R T I F I C A T I O N I HEREBY CERTIFY that the foregoing proceedings of the Council of the City of Philadelphia of Thursday, June 16, 2005, were reported fully and accurately by me, and that this is a correct transcript of same. RE: JOINT COMMITTEES ON LABOR & CIVIL SERVICE AND PUBLIC SAFETY _________________________ DEBRA A. WHITEHEAD