FULL TEXT: Mayor Reed Attacks Moore for Questioning Apparently Illegal Payments
(APN) ATLANTA — On August 27, 2014, the City Council of Atlanta Finance/Executive Committee, Chaired by Alex Wan (District 6), met to discuss, among other agenda items, an issue concerning nine City of Atlanta employees, who received monetary payouts not authorized by the code.
During the meeting, Moore said that she believed the payments were illegal and urged the Council to discipline Chief Financial Officer Jim Beard and Human Resources Commissioner Yvonne Cowser Yancey, the Reed appointees who approved the payments.
In response, Mayor Kasim Reed attacked Councilwoman Felicia Moore (District 9), saying that she is not an attorney, and challenging her to, in his view, commit defamation.
Nine employees received cash payments for accrued sick leave and vacation leave, after they approached the Administration saying that they were going through financial hardship. However, Section 114-415, Annual leave (vacation) states that any unused vacation time from each year is to accrue into an account for each employee, and is only to be paid when the employee is terminated or resigns.
“Employees shall not be permitted to exchange annual leave for cash payment except as provided in this subsection,” the section states (emphasis added).
In attendance were Chairman Alex Wan (District 6), C.T. Martin (District 10), Felicia Moore (District 9), Carla Smith (District 1), Howard Shook (District 7), Natalyn Archibong (District 5) and Yolanda Adrean (District 8).
First Interim Chief Executive Officer Jim Geisler made a short presentation, in which he said that under Mayor Shirley Franklin, the City had used a practice of firing and immediately rehiring employees, in contravention of the City’s competitive hiring policies.
“One of the interesting things that has come out of this work, 2002 to 2009 over 100, approaching 200 people were separated from the City, so they could obtain the payouts of their benefits, then rehired within one to ten days, which is a violation of city policy,” Geisler said.
“Nine people have come forward from [since] 2009 for additional benefits,” Geisler said.
“When you look at the nine employees that are involved, 2009 to 2014… transactions were meant to be transparent and open, the transactions from 2002 to 2009 were against city code. The process that was used to payout the funds 2009 to 2014 was fair and consistently applied,” he said.
“Every single case the city knew of during that time was dealt with,” he said.
Then Mayor Reed addressed the Committee.
“We were trying to help some folks who needed help. We are considering how to address additional need that we’ve heard from other employees. To remedy that for all employees for a year would be two million dollars. We hear loud and clear the fairness debate that has been raised,” Reed said.
Reed said the practice had been stopped, and that he was looking for the Council for further policy guidance going forward.
“I don’t think it’s as simple as the Mayor and Mr. Giesler has presented it today. We’re talking about fruits; apples, oranges… we’re trying to lump it together. I think in some ways I’m finding some the comments deflecting from the real issue here. Mr. Giesler spoke to this and the Mayor reiterated. That’s just my opinion. In 2002 to 2009 there was a violation… to obtain payouts, then the employee being rehired in ten days. I’ve read the code; that IS how you GET payouts, is to be separated from employment. If these people were separated in any way, whatever they received… that was done appropriately,” Moore said.
Reed: That’s not true. That’s not true.
Moore: Let me finish my statement and then you can say what you’d like.
Reed: Okay. That’s not true.
Moore: Mr. Chair, does he have the floor? Who has the floor? Mr. Chair, he’s out of order.
Reed: …because the rehiring provision, the rehiring provision…
Chair Wan: I would ask that you let her finish and then you can have your time.
Moore: We can do this all day.
Reed: Let’s go!
Moore: That was in line with the code. The question is whether or not they are in violation of the code, I don’t think they were in violation… we’ve turned around and rehire them under the 520 rule …. What we are dealing with here [with the nine] are people who have received the cash payouts that are not in the code… it expressive says they are not supposed to get them and they are still working… it wasn’t transparent at all as someone tipped off Mr. Belcher [Richard Belcher, WSBTV Channel 2 News] and he did a story and we found out about it, otherwise we wouldn’t be having this conversation now. Trying to compare 2002 to 2009 isn’t a comparison.
Reed: In your opinion.
Moore: Of course in my opinion, I only speak for myself. I do have something else to say but he definitely wants to respond to this.
Reed: So. Clearly we disagree. The fact of the matter is, this issue is about how employees are facing difficulties receiving a cash payout. We accept full responsibility for these 9 employees. We provided all the information that we been asked to provide for the 9 employees.
It does matter… the process in the City of Atlanta for a separated employee… was not to be allowed to be hired back immediately. To say the payout process [2002-2009] was appropriate is to not tell the whole story because you leave out the process for refilling that position. And so to have a situation where an employee is terminated or separated… collects their payout and then is rehired without a competitive process or the city bidding or the personnel process is a violation and inconsistent to the city’s policies. It shows how we went about trying to help people who were in a different situation. This entire hearing is about, how do we help people in hard times. We used to do it this way in the past. This Administration can verify it’s been done nine times. In the 100 times it was done, no one said anything. We changed that policy…..to say this is not apples… is inaccurate…
Moore: And that’s fine. It may be a McIntosh apple and another apple… It’s still different… I must point out its not nine people, it’s six people… that had vacation, comp time, or sick time…. Three people got a payroll advance. As I looked through the code there wasn’t anything there for payroll. I understand they are reimbursing the City for that advance. The sick and comp time… it’s very clear in the code… how those are supposed to be dealt with. It’s not silent in that… These six people had some hardship that got that going… who can provide me… Ms. Yancey… who can provide me… the policy procedure, criteria, et cetera… that was used to determine these six people, out of the over 8,000 city employees, met a hardship. I don’t know of any policy. I wanna see something in writing.
Reed: It’s not in writing.
Moore: So y’all just made it up as you went along.
Reed: No we didn’t make it up…
Reed: Hold on.
Moore: Where’d it come from?
Reed: We tried to address six employees and we explained in detail how we did it. It’s up to you all to decide to say you didn’t like that method. We cited the code sections where we got that authorization. That’s the opinion of this administration. You cited code sections… those codes are in conflict the code section we cited….that gives the CFO and the HR Commissioner authority to authorize that…
Atlanta Progressive News has reviewed the two code sections that Mayor Reed claims creates a conflict in the code, 2-228 (Additional duties of commissioner of department of human resources) and 2-342 (Expenditures for continuing operation of the city); however, neither of the sections give the CFO or the HR Commissioner any discretion to override the code.
2-228 simply outlines the duties of the Commissioner, but nowhere does it state that is carrying out his or her duties, that the Commission can override other sections of the code.
2-342 provides that the Commissioner may keep spending city funds for the city to operate if there is an emergency period where one budget has expired but a new budget hasn’t been passed.
Reed: I’m not going to have my Administration treated as if we were doing something untenured when 200 instance of conduct in similarly gray area, was done without complaint or review.
Moore: I’m not going to opine on that issue as this is the first time I’ve heard of it. If y’all have that information… present that.
Reed: We would be happy… yes ma’am.
Moore: Today we are talking about your nine. We’re not talking about the 200… because we don’t have that information.
Reed: Yes we are cause I’m part of the ‘we,’ so I’m talking about it.
Moore: That’s fine you can talk about it all you want. I’m not talking about it and that’s not what this hearing is about.
Reed: I instead of we.
Moore: This is not what this hearing is about; we are talking about the 9… The other thing is you were saying you all authorized this based on the code section y’all had. 2-228 additional duties of the commission, 2-342 expanded for continued operations of the city. Neither one of these in my opinion, fly. Cause if we’re gonna say that these two sections override what’s in the code, then we all just need to pack up and go home because the Mayor’s office, his admin, the HR Director, the CEO, and everybody can do whatever they want to do and the Council is not needed for any oversight… approval. I reject the fact that these two code sections give an authority for a policy that nobody has even told me… there’s not even anything in writing, it seems to be very arbitrary, these six people got it, other people didn’t know about it… there no policy to go to look at it. The code expressly says it different… we have other questions… but I will relinquish the floor for right now…
Reed: And so my response to that is, you’re entitled to your opinion. The request made to my administration… to recite the code sections, made us believe that we were trying to help these individuals. And so we have responded to Council’s request… and that a member disagrees with that is completely fine. The fact of the matter is, these are the code sections that we relied on and that were responsive to the Chair’s letter.
Following questions by Shook and Adrean, Moore continued.
Moore: The Mayor aptly pointed out every time I speak that it is my opinion so I want to be clear to everyone this is one council member, one fifteenth of this body, one person’s opinion… and the only reason this one council member has been able to say that when this issue was brought to my attention by Mr. Belcher when he interviewed me about it and he told me about the information, I went and looked at the code and spent two days of our recess… making sure that I understood what the code said and what it didn’t say, whether or not I felt this was in violation or not.
This one council member has said it before and I’m going to say it again that these weren’t authorized by the code pure and simple… and the fact that this came out in the media, we wouldn’t know, if you look at the list, you’ve got one in 2012, 2013. So this happened a while ago, even if this Administration thought that they could do our job and create policy and execute it all at the same time, we still were never notified. So I have said that I believe these payments were illegal. Illegal to me is defined as against the law. The code is the law. What a code was in violation of or against it. So that’s why I used that term…
And then my final comment on this… the issue about this is bigger than the payouts, to me, and it’s bigger than all of that and what it’s saying to me is, if the Administration feels that they can create their own policy and do things that are not in the code, and not even ask the Council, then what else do they feel that they can do without the code? So the issue becomes bigger and I would hope that Council would at least look at this in terms of what is our oversight responsibility. I mean, we come into this arena and there are some rules of engagement and as long as I’ve been a Council Member, it’s been policy, drafted, amended, voted up, voted down, Charter… state law… federal law, et cetera, et cetera, and you operate within that arena and that confine, but if we are going to sit by and say, not push back, on someone’s ability to violate the code, in my estimation, or to make up their own policy or basically do whatever they want to not report to you until it gets out in the media… we have a big problem. And it undermines the check and balance system of government. I think that’s the bigger issue here and that’s one council member, that’s Felicia A. Moore, District 9 saying that. Thank you Mr. Chair.
Reed: I have a comment. I think the word… the reason I came over today is because I was concerned that someone would raise the word of ‘legality’ with two of the finest people that I know. And I think that when you start accusing people of illegality… you ought to be prepared to take it all the way and back it up. And so the CFO Jim Beard and the Human Resource Commissioner were trying to help some folks that had some challenges in their lives.
Now, Councilwoman Moore, who is not trained as a lawyer, has no legal training, has offered her opinion on illegality. What is not in dispute is that you have a conflict in code sections. So if you go to the code section that she cites, I can then go to code section 2-341, which says the CFO has the authority to exercise discretion, in code section 2-228, which says that the Human Resources Commissioner had discretion. Which means that there is a conflict in the code. So to use the term illegality, when there is a clear conflict in the code, strikes me as really unfair, to two professionals that I think have served this city ably. And while it may grab headlines, and while it may sound good on a sound bite, it couldn’t be further from the truth.
She is wrong about using the term illegality, she doesn’t have the background, knowledge base, to back that up. Certainly when there is a clear conflict in the code… and if she really meant that, and try it in a defamation case, she would not prevail. Because what would be shown in a defamation case is that there was a clear conflict in the code. And that woman who is sitting right there, and that man that is sitting right there, are not criminals. Which is what follows illegality. And so oughta watch it. We oughta watch it. Because if it were me, and you called me a criminal, engaged in illegality, you’d have to prove it and you’d have to prove it in a defamation case. So if you really mean what you say, say it. Say Jim Beard engaged in illegal behavior, and say Yvonne Yancey engaged in illegal behavior. And take with it the personal liability attached to that statement cause you’re not right.
Moore: Again I am one council member and an individual, and I have my opinion and my opinion is those actions were illegal. And I said and I’ve said it many times and I’ll keep saying it.
Reed: Please do.
Moore: So sue me.