Monday night’s Talladega City Council meeting devolved from routine business to mutual accusations among the council members and between them and City Manager Patrick Bryant. Much of the discussion leading to the near breakdown Monday night took place behind closed doors, however, leading to some confusion about what had been driving the controversy. The Daily Home interviewed Bryant and Councilman Dr. Horace Patterson separately in an attempt to bring some of the behind the scenes issues into the light of day.
An Investigation in the Water Department
Patterson said that he believed “about 90 percent” of the controversy stemmed from an investigation conducted into mispayments of employees in the Water and Sewer Department about a month ago. Although Bryant and Patterson are largely in agreement regarding the facts, they have drawn very different conclusions, however.
According to Bryant, “In late 2017, our Human Resources Department discovered what appeared to be a pattern of under-compensation of employees holding the position of water operator for overtime hours accrued. Upon discovery, this was immediately brought to my attention. I held a discussion about the matter with the city attorney, who referred us to a firm in Birmingham that specializes in employment and labor law. The employment law firm agreed with our own internal determination that several employees had, in fact, been undercompensated and discussed with us our options moving forward. Based on that discussion, we decided to self-report to the (U.S.) Department of Labor. Following negotiations with the Department of Labor, the city offered back wage compensation to a total of seven affected employees covering a two-year period of time and costing the city roughly $68,000.”
Legal fees due to the Birmingham law firm came to about $30,000, Bryant said.
Bryant added that the pattern of undercompensating the water operators dated back to the spring of 2010; however, the Labor Department and the employees agreed to accept back payments going back only two years without further legal recourse.
“It affected other employees as well, but their legal claims to back wages extended beyond the federal statute of limitations,” Bryant said.
Essentially, the water operators were working 84 hours per week, then taking the following week off altogether. According to the Fair Labor Standards Act, these employees would have to be paid for their hours worked in the period when they worked them, meaning that each employee would be paid for 40 hours regular time and 44 hours overtime for the first half of the two-week pay period, then would be paid nothing for the second week, when they did not work. Instead, Bryant explained, the employees were being paid straight time for 40 hours per week during a two-week pay period, and earning only four hours of overtime. Apparently time sheets were manipulated to show the time per pay period divided up over two weeks, with only four hours of overtime.
Had the city not self-reported, he continued, “it is my understanding that, if a suit had been filed by an affected employee, the statute of limitations would have extended back to three years and liquidated damages doubling the amount of restitution we owed could be assessed. If that had happened, the financial burden to the city could have totaled $240,000, excluding legal fees.”
Concurrent to that, in early April of this year, “an investigation was conducted to determine how the under-compensation pattern occurred in the first place,” Bryant said. “Based on that investigation, it was determined by a neutral third party that an employee of the Water Department had intentionally manipulated the time sheets to continue the under-compensation pattern.” The neutral third party was a forensic accounting specialist recommended by the Birmingham specialists and hired through the city’s law firm.
“I took disciplinary action against the employee that, I believed, based on the investigation, to be responsible for the pattern of under payment.” The employee was terminated.
The employee told the labor lawyers, the forensic accounting specialist and Bryant that the employee had manipulated the spread sheets and was aware of the Fair Labor Standards Act, which had been violated.
As the civil service appeal process moved along, however, Bryant said he decided to “rescind the disciplinary action for the good of the community, for multiple reasons. First, the evidence did not suggest any nefarious motive, illicit reason or personal benefit to the employee.”
The employee had also been honest about what had happened when confronted, he added.
“Second, I feared my own job was in jeopardy because of the disciplinary action I took, based on conversations I had with the city council during executive session,” Bryant continued. “At the time, I made the decision to rescind the action because I felt it was in the best interest of the organization and community for me to avoid any potential litigation resulting from this matter. I did not want the community to be potentially subjected to a lengthy legal battle and another black eye. We have a lot of great things happening in our community, and I didn’t want to take any further action that could potentially derail the progress we have made.”
The council was briefed on the under-compensation issue during two executive sessions called to discuss potential litigation with the city’s attorney, on the written advice of their attorney. At this point, the settlements had not been made, and it was still entirely possible for the water operators to sue the city for back wages.
Bryant said he made the decision to terminate the employee April 9, a Monday. The council met that night, and called for an unscheduled executive session to discuss the good name and character of an employee who was recently the subject of a disciplinary action.
“I was called in to the executive session, and immediately the council wanted me to recount the events leading up to the disciplinary action, then informed me that they did not believe disciplinary action was warranted. They also insinuated that perhaps the city attorney and I had colluded on this matter to ruin a long-term employee and suggested that the council should seek additional legal representation to assist them. It was my understanding that this new counsel would be investigating the disciplinary action as distinct from the events leading up to the disciplinary action.”
All five councilmen were present, but Councilmen David Street and Ricky Simpson did not speak during the executive session. On returning to the public portion of the meeting, the council resolved to hire outside counsel before adjourning the meeting.
Bryant said he rescinded the employee’s termination before the council met again April 23, and again called for an executive session to discuss the good name and character of an employee. He was once again asked about the investigation into the under-compensation and as well as other matters, including unrelated litigation, compensation packages of certain employees and total legal fees incurred by the city during the last four years.
Bryant pointed out that, although the employee’s termination had been rescinded, the facts leading up to the termination had not changed, and the employee had not in any way been exonerated.
Patterson said he did not see it that way.
First, he defended the executive session Monday night that Bryant had characterized as illegal because it touched on job performance of an employee who had to file a disclosure form with the Ethics Commission. Job performance of such people must always be discussed openly, under Alabama law.
“There were two words unleashed by the manager that firmly planted the good name and character issue before the council: ‘falsified’ and ‘cheated.’ The manager himself opened Pandora’s box with those two untrue, ugly, slanderous charges against a water department employee that he wrongly terminated and, because of that wrongful termination, had to bring back to full employment status. When he made his initial charges in executive session, I and a couple of others told him the charges were false because the person in charge of the water department was not in charge when these practices began, and that these practices had been ongoing for years. Later, the manager brought the employee back to work, but did not clear the false charges against (this employee’s) good name and character.”
Patterson said an arrangement had been made some years ago involving these employees and management at the time regarding overtime.
Patterson also said the council was “shocked that, after returning this person to work, the employee’s computer was being withheld. Since nothing was done to clear the employee’s name, the discussion in the executive session was still all about this employee’s good name and character. If this person is brought back to work, but the computer is not returned, does this mean that the employee is still under a cloud of false charges? And if the individual was back at work and enjoying the status of good name and character, why was the computer being withheld except to further promote the attack on that good name and character. If the employee’s good name and character is restored, and if this person is viewed as they always have been, why are they being penalized by being put into a situation that appears to lend validity to false charges.”
Bryant responded that the employee had been given another computer with all relevant software and data loaded onto it, and pointed out that both computers were city property that did not belong to the employee.
“It is so important to remember each executive session was about the good name and character issue of this employee. In an executive meeting, the manager informed us and the city attorney informed us that the forensic accounts had been hired to investigate the matter, and these person agreed with the manager’s assessment. The council did give permission to bring the labor attorney on board, but at no point were we ever asked about or agreed to hire a forensic accounting firm. And that firm said the same thing about falsified documents and cheating employees out of their pay. I strongly disagree. And I question why the accounts were brought in in the first place. At this point, the manager looked at me and with a raised voice, with a violent, hard-voiced tone, said ‘If you’re going to fire me, fire me.’”
Bryant said he was told by members of the council in closed session that he would be defending his own good name and character rather than that of the employee.
During his comments, Bryant said that the forensics accountants had been recommended by the Birmingham firm and hired by the city’s attorneys. The city’s attorneys paid them and passed the expense along to the city as part of their regular bill. Patterson said he is not aware of any action taken by the council or language in any contract that would authorize this.
The council’s resolution to hire legal representation of its own was never acted on because the water employee was reinstated before council members could do so, Patterson said.
“The employee is owed respect, and (the manager) needs to say to the council he was wrong, that this person is in good standing and with an excellent reputation. He has a responsibility to clear this up. With these false allegations still hanging out there, and the absence of the computer, what if somebody else does something improper. What is to keep the city from saying there was truth to the earlier accusations because it was found in the computer? (The employee) deserves a clean bill of health, it is only right and fair. I think that all is all that most of us want.”
He added that the official termination was not rescinded in a day, but rather hung over the employee’s head for about three weeks.
“(The employee had to live through this for days and weeks, and not one apology has been offered or statement made to council (reflecting an apology). This could have been cleared up very easily and that’s all I’m after. (In the executive session Monday night) he could have answered the questions we asked rather than leave the meeting. I vehemently disagree that his job duties give him the right or authorization to reflect negatively on a person’s good name and character generally.”
Although nothing regarding the investigation or its findings was made public at the time, and even now both Bryant and Patterson were careful to avoid naming the employee, Patterson said, “I can’t tell you how many people have asked me about this, have wanted to know if it’s true. We’re a small community and word gets out. It is plain wrong to cast aspersions out there, then not provide a remedy to compete with erroneous information.”
“The Other 10 Percent”
The other most divisive issue between Patterson and Bryant is the allegation made Patterson Monday night that Bryant had verbally abused employees.
“This issue has been lingering for a couple of months as far as complaints against the manager,” Patterson said. “On one occasion I was informed of a complaint of his using foul language in a public facility, at City Hall. I did not hear or see this myself, but I was informed of the rumor. When I spoke with him, he admitted to it and said it would not happen again. I took him at his word. Then, on another occasion, I went to him and asked him why he speaks to people the way he does, talks down to people. I did not accuse him of anything, but I encouraged him to get out of his office, go out into the city and communicate with the employees, show that you care about what they do for the city. The older employees and department heads do not feel respected the way some of the newer ones are. I asked him to meet with the various departments, get to know them and let them know our vision for the city. I talked to him personally about this this around two weeks ago, and implored him to do so.”
Bryant said allegations of verbal abuse were news to him. “To my knowledge, there are no complaints against myself or any other employee by any employee or resident of this city. If any complaint is filed it is taken seriously, and we will conduct a thorough investigation before responding to such a complaint. I do want to say, though, that I think it is inappropriate to levy a complaint of that nature based only on anecdotal evidence.”
The other major issue Patterson raised had to do with the pay matrix previously approved by the council, which he said does not adequately reward employee longevity, based on closer inspection. He also said that he is amenable to a solution that Bryant proposed Monday night, and was confident this issue could be resolved.
Both men chose to conclude their interviews on relatively positive notes.
“I don’t commit to good government on Monday and then go play in the circus on Tuesday,” Bryant said. “I am committed to good government every day and I am committed to a standard of integrity and ethics that this community can trust and can be proud of. That’s why I brought this forward to the council, because we all owe that to the community. I didn’t spend my life studying this profession and dedicating my career to it to just turn my back and walk away.”
For his part, Patterson said “I would like to say to this community that, on the road to progress, there are bumps. Wise and courageous people continue the journey in spite of the bumps. Our best days are still before us in Talladega, and I am convinced that we will resolve these issues and continue on with the best of intentions toward this community. I believe we can continue to create the kind of environment that we all treasure.”