Welcome to the First Annual vB&R Public Officials · PDF file• Determine strategy for employment references ... – Suspension Demotion or Termination requires charges filed

Milwaukee | Madison | Oshkosh

2905 Universal Street | Suite 2 | Oshkosh, WI 54904 | vonbriesen.com

Welcome to the First Annual vB&R Public Officials Conference

6:00 Welcome

6:05 Public Records/Open Meetings Kyle Gulya

6:15 Conflicts of InterestAndy Phillips

6:25 Transgender IssuesChrissy Hamiel

6:35 Break

6:40 Performance ContractingSteve Nelson

6:50 Fair Labor Standards ActJim Macy

7:00 Public FinanceAndy Phillips

7:10 Effective DisciplineJim Korom and Bill Bracken

7:20 Medical Clinics/Wellness ClinicsChrissy Hamiel

7:30 Open Discussion

Program:



Wisconsin’s Public Records and Open Meetings Law

presented by:

Kyle Gulya

• Investigation records

• Driver’s Privacy Protection Act

• Text messages, social media and websites

• Ad hoc employee committees and Administration committees alleged to be governmental bodies

Developments in Wisconsin

• Text messages

• Inspection of work cell phones and personal cell phones

• Inspection of personal computers

Developments Around the Country

• Be confident in your work, your authority, and your responsibility; If each official has good habits, then the body will have good habits

• Create any record as if you are comfortable with it being on the front page of the newspaper

• Remember the number 1 rule of email

• Use Administration leadership effectively and be mindful of unintended consequences of feel good approaches

Smart Approaches



Conflicts of Interest

presented by:

Andy Phillips

“It takes 20 years to build a reputation and

five minutes to ruin it.” — Warren Buffett

Ethics and Conflicts of Interest Considerations

• Display effective leadership

• Law is the “minimum standard” of ethical conduct.

• Government Ethics:

– “That force which binds power to responsibility.”

– The Dartmouth Ethics Institute

The Smell Test1. Am I, my immediate family or an organization with which

I am associated, receiving anything of value for private benefit because of the position I hold?

2. Am I using the influence of my position to solicit something for the private benefit of myself, my family or an organization with which I am associated?

3. Am I, my immediate family or an organization with which I am associated, receiving, from a non-relative, anything of value for which we have not paid?

The Smell Test (continued)

4. Will an official action on my part possibly result in private benefit to me, my immediate family or an organization with which I am associated?

5. Will the use of my staff or the public facilities benefit me in my private capacity?

6. Am I using public time, resources or facilities for my personal gain?



Transgender Issues

presented by:

Chrissy Hamiel

State of the Law – Recently• March 23, 2016 – North Carolina passes nation’s first wide-ranging bill barring

transgender people from bathrooms and locker rooms that do not match the gender on their birth certificates

• April 19, 2016 – 4th Circuit Court of Appeals found that Title IX extends to protect the rights of transgender students to use the bathroom that corresponds with the student’s gender identity

• May 3, 2016 – EEOC Released Fact Sheet to Employers providing guidance under Title VII regarding bathroom access rights for transgender employees

• May 9, 2016 – Dueling Lawsuits by North Carolina and US DOJ over NC’s state law restricting access to restrooms, locker rooms and changing rooms

• May 13, 2016 – Significant Guidance from DOJ and DOE to School Districts Across the Nation

As to Employees……• Stems from a 1989 Supreme Court case, Price-Waterhouse v. Hopkins

– Court said “sex stereotyping” may be a form of discrimination that falls within the category of sex discrimination under Title VII

• Two significant EEOC rulings – Mia Macy (2012) and Lusardi (2014)– EEOC has said discrimination based on transgender status is sex discrimination in

violation of Title VII

– Denying equal access to common restrooms corresponding to employee’s gender identity is sex discrimination

• 2014 DOJ Memorandum – DOJ espouses that the best reading of Title VII’s prohibition on sex discrimination

is that it encompasses discrimination based on gender identity, including transgender status

• The Seventh Circuit Court of Appeals has declined to adopt an expansive reading of the term “sex” in Title VII cases

As to Students……

• DOE’s Office for Civil Rights has taken a clear position that discrimination against students because of their gender identity or transgender status violates Title IX

• November 2015 – DOE-OCR in Chicago issued scathing letter to school district finding district discriminated against a transgender student by failing to provide unfettered access to girls’ facilities

• In April, 4th Circuit in G.G. v. Gloucester County Sch. Bd., became first federal appeals court in the nation to find that Title IX extends to protect the rights of transgender students to use the bathroom that corresponds with the student’s gender identity

Practical Advice and Considerations• Develop and/or revise policies?

– Create a new, transgender specific policy?

– Revise current discrimination policy?

– Develop internal processes?

• Considerations– Records

– Confidentiality

– Etiquette and proper manner to address employees or students

– Restrooms/Locker rooms

– Sports and athletic activities, classes, other school activities

– Dress codes

– Bullying and harassment



Performance Contracting

presented by:

Steve Nelson

• Energy Savings Performance Contracting Wis. Stat. § 66.0133

• Engineer/contractor evaluates facilities = energy audit

• Traditionally popular with school districts

What Is It?

• Allows a municipality/school district to perform improvements including:

1. deferred maintenance (if energy related)

2. reduce energy consumption/costs

3. reduce operational costs

4. savings to be achieved are guaranteed by the contractor

Why Do It?

• Address deferred maintenance

• Guarantees

• Save money or be fiscally neutral

• Requirements of public bidding don’t apply; you can select a “Qualified Provider” who best meets your needs

Reasons to Enter into a Performance Contract

1. RFQ v. RFP

– Qualified providers prefer RFQ

– Best practice is RFP

– Need independent engineer to prepare energy audit report if using RFP approach

2. Municipality/school district must make determination that the costs of improvement won’t exceed savings over the useful life of the facility

What You Need to do to Comply with Wis. Stat. § 66.0133

1. Independent engineer prepares energy audit distributed to all bidders

2. Bidders provide design details of project, estimated savings, and proof of bonding

3. If don’t use competitive bidding approach, negotiate energy audit done for free (if possible)

4. Goal is to achieve transparency in pricing and costs. Require open book accounting

5. Attach your own contract to your RFP

6. Selection of Qualified Provider should be subject to negotiating a satisfactory agreement

Best Practices



Key Points Regarding the Fair Labor Standards Act

presented by:

Jim Macy

New Salary Thresholds for the Executive, Administrative and

Professional Exemptions

Effective December 1, 2106

• Salary of $913/week or $47,476 annually – Standard Duties Test

• Highly Compensated Employees, $134,004 annually –Minimal Duties Test

• Automatic updates every 3 years

• Inclusion of nondiscretionary bonuses and incentive pay, up to 10% of the standard salary level

Major Changes

• Method of tracking time for new hourly employees

• Consideration of no OT Rule

• Evaluate current policies for exempt employees now provided to offset extra hours – time off policies, extra vacation, etc.

• Evaluate off regular hours duties – night meetings, phone call, etc.

Things to Consider Now

• Receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and

• Such services are not the same type of services which the individual is employed to perform for such public agency

Volunteers – Section 29 CFR 553.100-106

• 240 hours regular employees / 480 hours public safety

– Earned at time and one half

• Usable if leave does not “unduly disrupt”

The Use of Compensatory Time

• Work that is occasional and sporadic; and

• Worked solely at employee’s option; and

• On a part time basis; and

• Done in a different capacity of regular work

Occasional and Sporadic Work –Hours that Do Not Create Overtime

• 13(b)(20) – Overtime Exemption Police & Fire Departments – less than 5 employees

• 7K Exemption – Work Schedule range from 7 to 28 days

Certain Fire Protection, Emergency Personnel and Law Enforcement Rules



Public Finance

presented by:

Andy Phillips

PACE

• Property Assessed Clean Energy

– Provides a business owner with the ability to upgrade, retrofit or even construct an energy-efficient facility without obtaining a mortgage

– PACE loans are placed on property tax rolls

– NO government money is involved

A Unified Approach

• von Briesen & Roper, Wisconsin Energy Conservation Corporation, Wisconsin Counties Association, League of Wisconsin Municipalities and Green Tier Legacy Communities Initiative

– Allowing for PACE administration through a multi-agency commission

– Increased efficiency, reduced administration at the local government level

PACE – What’s Next?

• Charter Members:

– Eau Claire County

– Chippewa County?

– La Crosse County?

– Dunn County?

– Washington County?

• Contact us to learn more about PACE and how it can help your community

Public Finance and Performance Contracting

• Does it matter what your resolutions and contracts look like from a finance perspective?

• Does it matter what your resolutions and contracts look like from a statutory performance contract perspective?

• So does it make sense to ensure that both bases are covered?



Effective Discipline

presented by:

Jim Korom and Bill Bracken

• “At Will” can be modified by employment discrimination laws; employment contracts; collective bargaining agreements; wrongful discharge laws; constitutional protections; and, employment policies and handbooks

• “Just Cause” is the ultimate form of protection but requires several components

• Public employers must ensure that disciplinary decisions are fair and rationally based

“At Will” to “Just Cause”

1. Review all rules, regulations and policies

2. Conduct a thorough investigation

3. Determine the level of discipline

4. Document all discipline

Steps to Take When Considering Disciplinary Action

• Do not act in haste or anger

• Work with HR and/or Legal Counsel

• Make sure documentation is in order

• Consider “just cause” factors

• “Due process” provided

General Termination Guidelines

• Consistency with prior actions

• Plan the meeting carefully and conduct it efficiently

• Identify security issues and concerns

• Be prepared to provide a reason

• Determine strategy for employment references

General Termination Guidelines (continued)

• General Municipal Employees– Procedure must be written; provide a hearing before an impartial

hearing officer; include the right to appeal to the governing body

• Public Safety Employees– Suspension Demotion or Termination requires charges filed

before a police and fire commission; appeal to court is also possible

– Lower level discipline typically covered by labor contract with an arbitrator

– County employees can choose between arbitration or committee

Grievance Procedure Appeals



Medical Clinics /Wellness Clinics

presented by:

Chrissy Hamiel

Benefits of On-Site Clinics• ROI – Control rising health care costs

• Provide services to both employees and families to reduce costs

• Provide primary and preventive care, and encourage exercise

• Keep workers healthier, reduce absenteeism, and cut benefit costs

• Help employers identify occupational health and safety risks, such as poorly designed workstations that result in back and neck problems

Note: Beware of ACA Uncertainties

– Starting in 2018, the cost of on-site clinics will likely be included in calculating the ACA’s Cadillac tax on high-value health plans

– In 2015, IRS indicated that spending on on-site clinics would be considered in tax calculation unless clinics offered only de minimis care

Practical Considerations

• Provider/staffing

• Services offered

• Equipment, location, materials, supplies

• Who may participate

• Return on investment

• Employee buy-in

Legal Considerations

• Danger of Forms

• Liability/Indemnity

• Term of contract

• HIPAA

• Public Records Law

• Collaboration/Consolidation

Documents

Welcome to the First Annual vB&R Public Officials · PDF file• Determine strategy for employment references ... – Suspension Demotion or Termination requires charges filed