7. Resolution 4582 - Personnel Policies Handbook AmendmentCity of Kalispell
Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406)758-7700 Fax(406)758-7758
August 30, 2000
TO: Mayor, Council and City Manage
FROM: Glen Neier, City Attorne
RE: Exempt Status of Personnel Specialist and Surveyor
On April 19, 1999, the City Council amended Section 20-5 of the
Personnel Policies Handbook by expanding the list of employees
considered to be "exempt" from overtime provisions of the Fair
Labor Standards Act. Although expansion of positions termed
"exempt" was probably in order, in at least two instances the
employees, job duties and responsibilities do not merit "exempt"
status.
In order to be classified as an "Exempt Administrative Employee"
under the FLSA, an employee must meet all of the following
requirements:
1) Duties: Primarily consist of either -
a) non -manual or office work directly related to
policies or general business operations; . . .
2) Discretion: Customarily and regularly exercises
discretion and independent judgment.
3) Supervision:
a) regularly and directly assists a person employed in
an executive or administrative capacity; or
b) performs only general supervision work requiring
special training, experience or knowledge; or
c) executes special assignments and tasks only under
general supervision.
4 ) Work Responsibility: Does not devote more than 20 percent
of work time to activities not directly or closely
related to performance of administrative work.
5) Compensation: Is paid not less than $155 per week . . .
personnelspecilistmemo.wpd
In the current administrative configuration, the position of
Personnel Specialist does not meet the "exempt" status test under
the FLSA.
The primary duty of the Personnel Specialist, which takes
precedence over all other duties, consists of calculating and
managing payroll for the City employees. Although critical to City
operations, the skills required for performance of the duty are
manual and clerical, and have nothing to do with policy or general
operations. The Personnel Specialist has the duty to prepare job
announcements, arrange and conduct interviews and assist with
hiring decisions. However, as presently designed, most duties
associated with hiring are secretarial and not managerial. Finally,
the Personnel Specialist manages disciplinary actions for
violations of the City personnel policy. The number of hours spent
on legitimate administrative duties by the Personnel Specialist
certainly do not rise to the level of being her primary function.
Because the primary duty of the Personnel Specialist in our
organization is payroll related, the position in its present form
does not exercise sufficient discretion or independent judgment
needed to qualify for exempt status.
The Personnel Specialist does not regularly assist a person
employed in an executive or administrative position. Although
payroll preparation requires only general supervision, payroll
skills are not those generally associated with special training,
knowledge or experience.
Payroll preparation comprises the bulk of the work engaged in by
the Personnel Specialist. Probably over 50% of the Personnel
Specialist's time is devoted to payroll issues and calculations.
obviously, the Personnel Specialist spends more than 20% of work
time on activities not "related to the performance of
administrative work".
The above discussion establishes that classifying the Personnel
Specialist position as exempt was an error. If the current
Personnel Specialist filed a Wage Claim with the Montana Department
of Labor, this office would have no defense and the City would
simply be ordered to pay the claim and a substantial penalty. I
have prepared a Resolution eliminating the Personnel Specialist
from the list of individuals classified as "exempt" for Council
consideration. It is imperative that the Resolution be adopted by
the Council.
personnelspecilistmemo.wpd
I have further received, at my request, a memo from Marti Hensley,
Personnel Specialist, setting forth the number of hours worked from
August, 1999 through July, 2000. The memo breaks down overtime and
straight time in accordance with City policy. The total amounts to
$3,634.85. In the opinion of this office, the City owes Ms. Hensley
at least the amount set forth in the memo and probably more,
because of the date of this memo.
As an alternative to reclassifying the Personnel Specialist as non-
exempt, the position duties should be changed to take payroll away
from the Personnel Specialist. Such a change would allow the
Personnel Specialist to perform legitimate professional duties.
However, unless and until payroll duties are taken away from the
Personnel Specialist, the liability of the City continues to
accrue.
The City also erred in designating the position of City Surveyor
as exempt. In the case Goebel, et al -vs- State of Colorado, the
U.S. District Court Magistrate determined:
1. The position of surveyor "does not require the advanced
type of knowledge' gained through a prolonged course of
study in specialized intellectual instruction and study'
necessary to place him in the exempt professional
category".
2. Although some of the surveyor's duties "related to
management policies or general business practices". . .
no determination as a matter of law could be made as to
whether said duties were "primary".
In Goebel the surveyor held an advanced position with the State of
Colorado. The City Surveyor authority and duties do not approach
the authority and duties of the State surveyor under the Goebel
decision.
As with the case of the Personnel Specialist, the City Surveyor
should be reclassified as non-exempt as indicated in the Resolution
prepared by this office.
personnelspecilistmemo.wpd
• CO)• '
A RESOLUTION AMENDING SECTION 20-5, PERSONNEL POLICIES HANDBOOK, BY
ELIMINATING THE PERSONNEL SPECIALIST AND SURVEYOR FROM THE CLASS OF
EMPLOYEES DESIGNATED AS EXEMPT UNDER THE FAIR LABOR STANDARDS ACT.
WHEREAS, the City Council of the City of Kalispell, by
Resolution No. 4468, adopted the Personnel Policies
Handbook containing a list of employees deemed
exempt pursuant to the Fair Labor Standards Act,
and
WHEREAS, the City has a review of the job descriptions and
duties of the Personnel Specialist and Surveyor and
determined that classifying said positions as
exempt was in error.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL, AS FOLLOWS:
SECTION I. That Section 20-5, Personnel Policies Handbook
is hereby amended by classifying the following
positions as exempt from the overtime
provisions of the Fair Labor Standards Act:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
3-a—.
14.
15.
16.
17.
18.
res\personnelspecialistexempt
Elected Officers of the City
City Manager
City Attorney
Fire Chief
Assistant Fire Chief
Police Chief
Assistant Police Chief
Director of Public Works
Assistant City Engineer
Assistant City Attorney
Design Technician/Project Manager
Public Works Superintendent
Surveyerr
Wastewater Treatment Plant Manager
Director of Planning, Economic
Community Development
Building Official
Housing Division Manager
and
Planning and Redevelopment Division
Manager
19. Zoning Administrator
20. Director of Parks and Recreation
21. Finance Director
22. Assistant Finance Director
z 3—
Personnie-11 --p-e-c-talist
SECTION II. This Resolution shall take effect immediately
upon passage by the City Council.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, THIS STH DAY OF SEPTEMBER, 2000.
Wm. E. Boharski
Mayor
Attest:
Theresa White
City Clerk
res\personnelspecialistexempt