By Thomas Prohaska
The Buffalo News, N.Y.
LOCKPORT — With a U.S. Justice Department lawsuit over the treatment of a pregnant corrections officer accounting for the biggest share, Niagara County spent a record $277,855 for legal fees on labor-related matters in 2014.
After filing a Freedom of Information Law request, The Buffalo News recently examined a full year of bills from the Buffalo law firm Jaeckle Fleischmann & Mugel. The firm raised its rates in April, another contributing factor in the cost increase from the $207,787 the firm charged for work in 2013. In 2012, Jaeckle Fleischmann billed the county $219,173.
The top attorneys at the firm now charge $225 an hour, a $50 increase.
About 30 percent of the legal bills came on one case: “United States of America v. Niagara County, New York.”
That lawsuit was filed by the Justice Department in May 2013 on behalf of Carisa L. Boddecker, a corrections officer who was required to take an unpaid leave of absence under the Family and Medical Leave Act during her pregnancy in 2007, after the Sheriff’s Office switched her from light duty to shifts guarding cellblocks because of a shortage of female officers. She was sent on leave after she and her doctor complained about the assignment.
Through the end of 2014, that case has cost county taxpayers $129,206 in legal fees, including $84,239 in 2014 alone. And the end is not in sight, County Attorney Claude A. Joerg said last week.
He said the county tried to settle the case last spring. “We spent a whole day in mediation,” Joerg said. “I think we came into mediation with a pretty fair offer.”
But it was rejected, and the case goes on. A recent scheduling order says the discovery process – the exchange of evidence between the sides – is to continue until August. No trial date has been set.
Boddecker contended that she was not treated the same as other jail workers with temporary medical conditions had been.
That contention is driving the demand from the Justice Department for records about the four other female jail officers who were pregnant while on the payroll since 2005, as well as 25 other jail workers who had some sort of temporary medical condition that affected work at the jail and every officer who requested sick leave in the last 10 years.
The county gave the Justice Department 12,000 pages of records in February 2014, but the Justice Department demanded more. The county resisted, but on Oct. 30, U.S. Magistrate Judge H. Kenneth Schroeder Jr. ruled against the county on the disclosure issues.
Another federal case involving the jail will place increasing strain on the county’s outside counsel budget. In April, Jeffrey J. Newman and Richard H. Werth Jr. – president and vice president, respectively, of the Deputy Sheriffs Association, which represents corrections officers and dispatchers – sued the county in U.S. District Court over its compensatory time policy. Four other workers later joined the suit as plaintiffs.
The officers say the county’s rules violate the Fair Labor Standards Act. Werth said, “There’s a federal comp time law. We earn comp time in lieu of overtime, and then when you try to claim it, you can’t.” That’s because, according to the lawsuit, the county limits the number of guards or dispatchers taking comp time to three per day.
‘A big record nightmare’
Werth said, “You’ve got to schedule it in January after everybody’s got their vacation in, or you’ve got to come to work and see if there’s extra personnel, which doesn’t happen too much.”
Jaeckle Fleischmann billed the county $38,477 on that case from April through December. Joerg called the case “a big record nightmare” because the county has to dig up all the affected workers’ comp time records. “I think we’ll be successful in defending that,” Joerg said, “but we’ve got to go through all that paper.”
Other expensive cases included a $13,018 bill for a complaint filed with the U.S. Equal Employment Opportunity Commission by Social Services worker Kathleen E. Hamilton. Human Resources Director Peter P. Lopes said the case was settled with a confidentiality agreement, so he couldn’t talk about it.
Jaeckle Fleischmann was paid $9,567 for the case of Shaun H. Aiken, a building maintenance worker at the jail, whom the county accused of abusing sick time. Lopes’ version was that the county was concerned about Aiken’s “too frequent absences,” and one day when he didn’t come in, jail supervisors went to his home and found him present and well.
“We want it proven that they’re not allowed to do that,” said William C. Rutland, president of Aiken’s union, Local 182, American Federation of State, County and Municipal Employees.
The union filed two charges of improper labor practices, contending that Aiken was being harassed. Rutland said Aiken resigned last month because of the uncomfortable work environment, but the union continues to pursue a hearing before the state Public Employment Relations Board.
“We have a very generous sick time policy, no question about it,” Rutland said. “If the county doesn’t like the sick time policy, they should sit down and negotiate new terms instead of harassing members.”
There was a general complaint of sick leave abuse at the Sheriff’s Office that cost the county $10,958 in legal bills to settle, according to the Jaeckle invoices.
Rutland himself was the subject of disciplinary action that has so far rolled up $8,215 in legal bills. Lopes said it started when Rutland, during the workday, left his post as an auto mechanic in the Public Works Department and headed for the county landfill, where he took photos of leaking liquid that were later published in a local newspaper as a means of questioning the maintenance of the landfill in the wake of its shutdown, which cost some AFSCME members their jobs.
Lopes said Rutland went on the union errand without telling his supervisor where he was going or how long he’d be gone. “He also has a responsibility to the county and the taxpayers who pay his salary,” Lopes said.
“When an employee misbehaves, I’m going to hold them accountable,” County Manager Jeffrey M. Glatz said. “He doesn’t help the situation by going around and bad-mouthing people.”
Rutland said he wouldn’t comment on his own case, but he was willing to talk about the contract negotiation process, for which Jaeckle Fleischmann billed $25,132 for work with the six unions. The county’s labor contracts ran out at the end of 2011, and talks haven’t gone all that well, but Glatz and some union voices saw grounds for optimism about a deal.
‘One more piece’ of data awaited
Impasses were declared by AFSCME, the Civil Service Employees Association and the Deputy Sheriffs Association. Glatz was most optimistic about a deal with CSEA. “I think we’re close,” he said. “We’ve found more common ground with CSEA.”
CSEA spokeswoman Lynn Miller said, “Our goal at CSEA is always to negotiate in good faith and work toward an agreement that considers the needs of all involved.”
As for AFSCME, Rutland said a meeting with a state mediator is on tap Wednesday, but the sides remain “miles apart.”
Werth, of the deputies association, said, “We were supposed to meet before Christmas. We haven’t met since then. We have no new date.”
Glatz said the main issue is the county’s demand that the union members begin to pay a share of the county’s health insurance premiums. Workers don’t do so unless they choose the “premium plan,” the most expensive of the county’s three health coverage options. That includes a 10 percent contribution by the worker. The other plans, dubbed “core” and “value,” are fully paid by the county.
“In today’s world, some kind of contribution is a reasonable expectation,” Glatz said.
“We’re farther along than we’ve ever been. I’m waiting for one more piece of health insurance information,” said James L. Briggs, chief negotiator for the Probation Officers Association and the Police Benevolent Association, which represents the Sheriff’s Office patrol and detective divisions.?However, that one more piece is the claim history for all county employees, something that Glatz is reluctant to give up. “Quite frankly, if he was my shop steward, I don’t know if I would like my personal information going to him,” the county manager said.
“If you want somebody to pay into something, they’ve got to understand what they’re paying into,” Briggs said. He contended the county is including the costs of retirees’ health claims in the price tag that it wants current employees to help cover. Briggs said the unions won’t do that. “I don’t bargain for retirees,” he said. “It’s against the law.”
But he said the county has finally relaxed its reluctance to surrender any health coverage data to the unions. “For the first time, they’re giving us what we’re asking for,” he said.
Glatz said the county still wants all unions to have the same health packages and the same length of contract. “Our hope,” he said, “is that when one signs on, the others will follow and be consistent.”