Council Chambers
Municipal Building
February 13, 2007
The McAlester City Council met in regular session on Tuesday, February 13, 2007, at 6:00 P.M. after proper notice and agenda was posted February 9, 2007, at 5:00 P.M.
Present: Buddy Garvin, Haven Wilkinson, Sam Mason, Donnie Condit, Greg Rock, Travis Read, Don Lewis & Robert Ivester
Absent: None
Presiding: Don Lewis, Mayor
INVOCATION
Pastor John Fream, First Baptist Church
PLEDGE OF ALLEGIANCE
Mayor Don Lewis led the pledge of Allegiance.
CONSIDERATION OF MINUTES—PRECEDING MEETINGS
Minutes of the Emergency Meeting held on January 16, 2007, Special Meetings held on January 22, and February 1, 2007, and Regular Meeting held on January 23, 2007, were approved, as distributed.
Citizens’ Comments
Steve Fairfield addressed the Council stating that he was the plant manager for the Simonton Window plant and that during the ice storm they did not have electricity but he had one employee on duty, the guard. He then stated that the evening that the Diversified Foods plant burnt he had told the guard to leave the area. The guard was unable to leave because the only road out of the industrial park was blocked by the emergency vehicles. Mr. Fairfield stated that he thought it was very important to have a second exit out of the industrial park. He further stated that he would appreciate anything that could be done for the industrial park.
SCHEDULED BUSINESS
Consider Possible Action to Approve Wesley Brown Settlement that was Tabled from the January 23rd Council Meeting
Councilman Wilkinson moved to approve the Wesley Brown settlement, seconded by Councilman Garvin.
Before the vote, Councilman Read stated that he would like to ask the City Attorney a question. Councilman Read asked if as Trustees of the City of McAlester’s Defined Benefit Plan Trust, the Council had the collective authority to deviate from the plan to accommodate an individual.
Mr. Ivester stated that in his opinion the Council could deviate from the plan as long as they did not attempt to take away contract rights that participants in the plan already had.
There was further discussion concerning other employees that might be in this same situation, how to prevent this situation from occurring in the future and any precedent this decision could make.
Councilman Read stated that he would like the City Attorney’s opinion on this matter made part of the minutes.
The opinions was as follows:
“TO MAYOR AND CITY COUNCIL: This information is furnished in regard to the Brown matter:
1. Sometime in February, 2006, the question was presented of whether Brown would be entitled to draw City retirement. I checked the City's retirement document, talked with City Treasurer, Steve Harrison, who furnished me a memo dated February 9, 2006. I also checked accounting records of the City.
2. Mr. Brown was contacted and advised that it did not appear that he was entitled to receive retirement from the City of McAlester. Mr. Brown asked for time to check this matter. He later came to see me and brought the contract he had with the City and advised me he believed he was entitled to receive retirement benefits and to maintain his health insurance. He indicated that the health insurance was the most important thing because of the health of himself and his wife. Brown asked me to see if there was any way to keep the medical insurance. I contacted the City and was advised that Brown could continue his insurance so long as he received at least $1.00 per month retirement.
3. Brown contacted me in May, 2006, and asked that the City submit a proposal which was presented on May 25, 2006.
4. On June 5, 2006, a tentative proposal was made Mr. Brown responded sometime in September-October, 2006, would agree to the following:
To Brown, that he
A. Re-pay all retirement received to date.
B. Brown would receive $1.00 per month retirement for his lifetime.
C. Brown would be allowed to continue to receive health insurance through the City and Brown would pay the premium with any increases.
D. The settlement would be by friendly suit.
5. This proposal was reviewed with the City Council at executive meeting and all councilmen were present and indicated their approval. I contacted Brown and told him that we had reached an agreement and asked him to prepare the court papers. On November 30, 2006, I had not received any papers from Brown so I prepared the petition and judgment and mailed it to Brown for approval. Brown made some minor changes and the judgment was filed and entered by the District Court of Pittsburg County, Oklahoma, on December 29, 2006. On December 29, 2006, I received payment to the City from Brown in the amount of $10,418.56.
6. It is my opinion that this settlement is in the best interest of the City of McAlester. The reason is that the only payment the City will be obligated to pay is the $1.00 per month retirement. Based on life expectancy of 20 years, this would be $240.00 exposure to the City. All insurance premiums will be paid by Mr. Brown and there will be no cost to the City for health insurance premiums. Mr. Brown has given up any claim he has against the City for his retirement and/or health insurance claims.
7. The reason for the above is as follows:
A. Mr. Brown was employed for over 19 years by the City of McAlester. Mr. Brown received health insurance through the City and paid the dependent part of the health insurance for over 19 years. Mr. Brown was designated as an employee and received an employee number. Mr. Brown was promised health insurance for himself and dependents as part of his original agreement with the City of McAlester. Some feel Mr. Brown would not qualify for health insurance because he did not work 30 hours per week. However, the City sends a list of the employees who are covered by health insurance to the health insurance company and Mr. Brown's name was included as an employee for over 19 years. I am of the opinion that the conduct of the City in allowing Mr. Brown to receive health insurance acts as an EQUITABLE ESTOPPEL against the City to deny health insurance coverage to Mr. Brown.
"Under Oklahoma law, Doctrine of Estoppel is applied to promote justice and fair dealing when by words or conduct of one party, another has been induced to rely upon the same to his injury."
I believe that if Mr. Brown is forced to file legal action against the City of McAlester he would probably be successful and these monies would be paid from the general account plus attorney's fees and costs.
B. Mr. Brown indicates that he was promised retirement benefits at the time that he was hired by the City of McAlester. The retirement plan was changed in 1995 and the City records are not good in regard to the plan prior to 1995. Mr. Brown filed application for retirement in May, 2005, and the City paid retirement beginning in July, 2005, until June, 2006, when we stopped payment pending settlement of this matter. Mr. Brown's contract indicates that he will receive retirement benefits. It is my opinion that the City of McAlester would be EQUITABLY ESTOPPED from now denying retirement benefits to Mr. Brown based upon its previous contract. In my opinion, if Mr. Brown is forced to sue the City on his retirement, he will have a reasonable chance to win based on the past actions of the City of McAlester. If Mr. Brown recovers, any damages would be paid from the general fund plus Attorney's fees and costs. In my opinion, there are persons who either work or worked for the City of McAlester that would back Mr. Brown up on the idea that he was to receive retirement and health insurance.
C. Some have raised the issue of whether the health insurance could come back against the City if we allow Brown to continue his health insurance. In my opinion, the answer is no. The reason is because the City determines who is eligible to receive health insurance benefits and as long as health insurance premiums are paid to the health insurance company, the employee will be covered. Also the health insurance company has received almost 21 years of insurance premiums from Mr. Brown for himself and his wife. In my opinion if they raised any issue in this regard, which I do not anticipate, they would be EQUITABLY ESTOPPED from denying coverage.
D. Can the City of McAlester pay Mr. Brown $1.00 per month as retirement? The answer is yes. The City Council of McAlester controls the City's retirement and has the authority to allow this.
I will repeat, I believe that this settlement is in the best interest of the City of McAlester and should be approved by the City Council.”
Steve Harrison addressed the Council and stated that he thought that Mr. Brown did not qualify at all and the City was making an exception. He further stated that if the City was making an exception for the health insurance why pay Mr. Brown $1.00 per month for retirement. He suggested that the Council drop the $1.00 per month and just give him health insurance. Mr. Harrison also stated that the Council had the right to change the rules of the plan but to change the rules they would need to amend the plan.
Mr. Ivester stated that from a legal standpoint the $1.00 helped to protect the City of McAlester, which was why it was in the decision.
There was no further discussion, and the vote was taken as follows:
AYE: Councilman Mason, Condit, Wilkinson, Garvin & Mayor Lewis
NAY: Councilman Read & Rock
Mayor Lewis declared the motion carried.
Consider Action to Approve Ordinance Amending Landfill Fee to Comply with Federal Mandated Subtitle “D” Regulations and Declaring an Emergency
ORDINANCE NO. 2250
Councilman Mason moved to approve ORINANCE NO. 2250, seconded by Councilman Read.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Wilkinson, Mason, Condit, Garvin, Rock, Read & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Councilman Mason moved to approve the EMERGENCY CLAUSE, seconded by Councilman
Wilkinson.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Read, Condit, Wilkinson, Mason, Rock, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Consider Action to Authorizing Mayor to Execute Documents Establishing Primary and Secondary Agents to Prepare and Submit any Required Documents/Forms for Disaster Recovery for Presidential Declared Disaster No. 1678 due to the January 12, 2007, Ice Storm
Councilman Mason moved to authorize the Mayor to execute documents establishing Primary and Secondary agents to prepare and submit any required documents/forms for disaster recovery for Presidential declared Disaster No. 1678 due to the January 12, 2007, ice storm. The motion was seconded by Councilman Read.
Before the vote, Mayor Lewis stated that the Primary contact person was Cliff Pitner and the Secondary contact person was Dave Medley.
There was no further discussion, and the vote was taken as follows:
AYE: Councilman Condit, Rock, Mason, Garvin, Wilk9nson, Read & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Consider Action to Approve Ordinance Amending Commercial Garbage Rates and Declaring an Emergency
ORDINANCE NO. 2251
AN ORDINANCE AMENDING SECTIONS 106-327(b), 106-327(c), 106-327(d) and 106-327(e) OF THE McALESTER CITY CODES REGARDING CHARGES FOR REMOVAL OF NON-RESIDENTIAL REFUSE; AND DECLARING AN EMERGENCY.
Councilman Mason moved to approve ORDINANCE NO. 2251, seconded by Councilman Condit.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Read, Condit, Wilkinson, Mason, Rock, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Councilman Read moved to approve the EMERGENCY CLAUSE, seconded by Councilman Condit.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Garvin, Rock, Read, Wilkinson, Condit, Mason & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Consider Action Authorizing Mayor to Sign Waiver Allowing The Bank, N.A. Access to Building on Chaney Park Property that the City Council Leased to the Girl Scouts Tiak Council, Inc. by Resolution No. 05-24 on December 13, 2005
Councilman Mason moved to withdraw this item, seconded by Councilman Read.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Mason, Read, Rock, Condit, Wilkinson, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
Consider Action on Agreement Between the City of McAlester and Quality Finishing, Inc. to Facilitate the Hiring of 30 Employees
Councilman Rock moved to withdraw this item, seconded by Councilman Mason.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Mason, Read, Rock, Condit, Wilkinson, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
CITY MANAGER’S REPORT
Bart Van Nieuwenhuise stated that he had three items to report on. The first was the January summary of Revenue and Expense report. He stated that for all funds the revenue was over projection $1,128,063.00 and the expense for all funds was under projection $238,590.00. Mr. Van Nieuwenhuise stated that if the Council had questions he would go over them.
Councilman Condit stated that in November or December they had met with the school and he had requested that these monthly reports be sent to the school. Mr. Van Nieuwenhuise stated that he did not know if that was being done and he would get with the Assistant City Treasurer to see if it was being done.
The second item was the January sales tax report. Mr. Van Nieuwenhuise stated that the sales tax receipts were approximately 17% higher than last Februarys’ report. This report included the ice storm and it still set an all time high for one month. He further stated that the monthly average to date was $1,118,929.34 and the estimate had been $1,062,500.00 per month, which made a total excess over projection of $451,434.74.
Mr. Van Nieuwenhuise stated that the City had met with FEMA about the debris removal and they had reviewed the contracts. The City was in the process of making the required changes to the specifications and hoped to have them completed in the next couple of days. He also stated that they hoped to get those packets out next week. He further stated that they would give the contractors about five days to return the quotes. He added that hopefully the cleanup would begin within two weeks and the contract allowed ninety days to complete.
Mr. Van Nieuwenhuise added that this would be his last meeting before the new City Manager came to work, he was looking forward to being in the audience and he wanted to thank the Council for the opportunity they had given him.
Mayor Lewis thanked Mr. Van Nieuwenhuise for stepping up during all of the challenges the City had gone through.
MAYOR, COUNCIL, COMMITTEE REPORTS
Councilman Mason stated that he wanted to add to what Mr. Van Nieuwenhuise had said about the time for the cleanup to begin. He wanted the citizens to understand that two weeks was an estimate and many things could influence when the cleanup actually was able to start.
Councilman Garvin asked if there would be any way to waive the burn permit for residents within the City that have five acres or more.
Mayor Lewis stated that if the permit was waived for one person then the City would have to start waiving it for everyone. He also stated that the Fire Chief would not allow burning within the city limits.
Councilman Wilkinson stated that he had also received calls concerning the West Kiowa Center closing after Councilman Read spoke about it.
Councilman Read stated that he had received an email from Mel Priddy saying the center would remain open.
Councilman Condit recognized two Boy Scouts that were attending the meeting. They were Colin O’Brien, a 7th grade student from Puterbaugh and Addison Brown, a 6th grade student from Parker.
Mayor Lewis stated that he wanted to compliment the citizens on getting the debris to the curbside and he asked all of the citizens to help clean the City. He further stated that the new City Manager, Mark B. Roath, would be reporting for work in two weeks on February 26, 2007.
Councilman Condit asked if there was any help available for the citizens that did not have the means to trim or move the debris to the curb.
Bart Van Nieuwenhuise stated that the Southern Baptist Men had been in the area helping widows and low income families.
Councilman Mason stated that citizens could call 211.
Mayor Lewis stated that the volunteers from out of town had left but there were some local volunteers that would at least be completing the list of names.
Concurrence in the Mayoral Appointments of Dr. Ray Dixon and Ms. Cara Bland to the McAlester Regional Health Center Authority Replacing Dr. James Golla and Ron Testa, Sr. Respectively
Councilman Mason moved for concurrence in the Mayoral appointment of Dr. Ray Dixon and Ms. Cara Bland to the McAlester Regional Health Center Authority replacing Dr. James Golla and Ron Testa, Sr. respectively. The motion was seconded by Councilman Condit.
Before the vote, there was discussion as to why Dr. Golla did not want to continue on the Authority, why there was no 5th Ward representative on the Authority and who, was the Healthcare person on the board.
Mayor Lewis stated that Dr. Golla had said he wanted to be able to spend more time with his family. He stated that he would consider any individual that was recommended from any of the wards and the Healthcare people were Drs. Dixon, Doyle and Schuller.
There was no further discussion, and the vote was taken as follows:
AYE: Councilman Wilkinson, Mason, Condit, Rock, Read & Mayor Lewis
NAY: Councilman Garvin
Mayor Lewis declared the motion carried.
(APPROVAL OF CLAIMS TO BE PAID AS FUNDS ARE AVAILABLE) – FISCAL TRANSACTIONS
Councilman Condit moved for approval of claims as follows: General - $118,725.74; Parking Authority - $158.38; Capital Outlay Lease/Loan - $14,499.68; Nutrition - $9,970.55; Airport Hangars - $5,020.00 and SE Expo Center Fund - $4,633.02. The motion was seconded by Councilman Wilkinson.
There was no discussion, and the vote was taken as follows:
AYE: Councilman Read, Condit, Wilkinson, Mason, Rock, Garvin & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried.
ADJOURNMENT
There being no further business to come before the Council, Councilman Wilkinson moved for the meeting to be adjourned, seconded by Councilman Read. The vote was taken as follows:
AYE: Councilman Condit, Rock, Mason, Garvin, Wilkinson, Read & Mayor Lewis
NAY: None
Mayor Lewis declared the motion carried, and the meeting was adjourned at 6:50 P.M.
ATTEST:
__________________________
Don R. Lewis, Mayor
____________________________
Cora Middleton, City Clerk