REGULAR MEETING
July 9, 1984
The Regular Meeting of Council was held on July 9, 1984 at 7:30 p.m. with Mayor Carroll presiding. Members present were Messrs. Richter, Tudor, Bulley, Christiansen, Witt, Weyandt and Shevock. Mr. Boaman was absent.
The invocation was given by the Reverend J.H. Williams, Council Chaplain.
AGENDA ADDITIONS/DELETIONS
Mr. Witt requested an additional agenda item to discuss traffic lights on U.S. Route #13.
ADOPTION OF MINUTES - REGULAR COUNCIL MEETING OF JUNE 25, 1984
The Minutes of the Regular Council Meeting of June 25, 1984 were unanimously approved by motion of Mr. Witt, seconded by Mr. Bulley and bore the written approval of Mayor Carroll.
APPOINTMENT - LIBRARY COMMISSION - GARY PATTERSON - FIVE YEAR TERM
Mayor Carroll submitted the name of Gary Patterson as a reappointment for a five year term on the Library Commission.
By motion of Mr. Witt, seconded by Mr. Christiansen, Council by unanimous roll call vote (Mr. Boaman absent) approved the appointment.
APPOINTMENT - LIBRARY COMMISSION - GOLDIE LEGATES
Mayor Carroll submitted the name of Mrs. Goldie Legates to fill out the remaining five year term of Colonel Richard Scrafford who resigned. Mrs. Legates will serve the two years remaining in the five year term appointment.
Mr. Witt moved for approval of the appointment, seconded by Mr. Christiansen and carried by a unanimous roll call vote (Mr. Boaman absent).
COUNCIL HEARING - MICHAEL MCCUSKER - APPEAL OF DECISION OF POLICE PENSION BOARD
A hearing was set by Council for this date to accommodate an appeal by former police officer Michael McCusker concerning a decision of the Police Pension Board to offset Michael McCusker’s total disability payments by payments received from Workmen’s Compensation.
Mayor Carroll declared the hearing open.
Attorney Richard Zappa of Wilmington, was present to present McCusker’s appeal to members of Council. Former police officer Michael McCusker and Mrs. McCusker were also present.
By way of background, Mr. Zappa stated that the matter is before Council as a result of action taken by the Retirement Committee, also known as the Police Pension Board.
In August 1982, the Board ruled that Mr. McCusker be disabled on a duty connected total disability pension. He collected his pension up until approximately October 1983. The issue before the Retirement Committee that is before Council today on appeal is a decision by the Retirement Committee to offset Mr. McCusker’s disability pension by amounts of Worker’s Compensation benefits received during the period of his total disability and partial disabilities within the meaning of those terms under the Workmen’s Compensation Laws.
Mr. Zappa stated that existing medical evidence indicates that Mr. McCusker is totally disabled for police work. In February 1981, Mr. Zappa pointed out that Mr. McCusker was struck down by a motorist while conducting an investigation on Route #13. As a result of the accident, Mr. McCusker has undergone several spinal operations, none of which were able to correct the problem in the spine, allowing him to return to police work.
Two issues concerning Mr. McCusker came before the Retirement Committee; one dealt with whether Mr. McCusker should be reclassified from a totally disabled police officer under the pension plan; and secondly, whether the pension he received should be offset by Workmen’s Compensation payments made to him.
Attorney Zappa continued to explain that the Retirement Committee, after conducting a hearing and after hearing arguments that Mr. Rodriguez and he made in writing, ruled that Mr. McCusker should not be declassified from a total disability pension to a partial disability pension. However, the Retirement Committee did find that his pension benefits should be offset by Workmen’s Compensation paid to him.
Mr. Zappa stated his position on the matter as being that the law of the Dover Charter does not provide for an offset regardless of the ruling by the Retirement Committee, feeling that there has to be some basis in the law for action that was taken by the Committee. Mr. Zappa questioned the fact that if there is no ordinance authorizing the action taken by the Retirement Committee where is, in fact, the authority for doing so. He pointed out that the general employee pension plan does provide for an offset on Workmen’s Compensation payments. The Police Pension Plan is silent on this point. He stated that Mr. Rodriguez’s argument relative to the fact that the general employee plan provides for an offset and the Police Pension Plan is silent on that point is an inference of intent that offsets for Workmen’s Compensation is applicable to both plans. He felt that this is legislation by silence.
Questioned by members of Council, City Solicitor Rodriguez stated that his argument is based upon the legislative history and the consistent policy of the Retirement Committee. He stated that the Workmen’s Compensation deduction is properly made and that action of the Retirement Committee should be affirmed in Mr. McCusker’s appeal.
He advised Council that authority to create the Civilian Employees Pension Plan was granted by the General Assembly by amendment of the Charter, effective April 10, 1947, which gave Council that authority to establish a system of pensions or benefits for regular employees of the City. However, in granting this authority, the General Assembly specifically provided as follows:
“All payments and benefits paid and allowed under any plan authorized by this Act shall be an addition to and in no manner in lieu of the provisions of the Delaware Workmen’s Compensation Act.”
The General Assembly prohibited Council from creating a Pension Plan which would allow Worker’s Compensation benefits to be subtracted from payments and benefits under any pension plan for regular or civilian employees.
Since policemen were not considered regular or civilian employees, they had no pension plan because Council lacked the authority of the General Assembly to create such a plan. However, on July 28, 1955, Section 3 of the Charter was again amended by the General Assembly to permit Council to enact ordinances for a pension or retirement system for the police of the City of Dover. An important fact regarding this amendment by the General Assembly is that no prohibition was made regarding the deduction of Workmen’s Compensation benefits from payments due under the Pension Plan for a police as had been the prohibition for Civilian Employees. On January 20, 1983, the General Assembly again amended Section 3 of the Charter by striking the above quoted clause which prohibited Council from deducting Workmen’s Compensation benefits from benefits paid under the Civilian Pension Plan. The Civilian Employees Plan specifically provides that Worker’s Compensation benefits shall be subtracted from the amount of benefits payable for disability under the Civilian Plan. The Police Pension Plan has no such provision, however, the Retirement Committee has consistently followed the procedure in the past in deducting Workmen’s Compensation benefits from disability payments due under the Plan. Mr. Rodriguez stated that the legislative history clearly indicates the authority for Council and the Retirement Committee to make the Workmen’s Compensation deduction in the Police Pension Plan and that procedure has been consistently and properly followed in the past.
Mr. Rodriguez stated Mr. Zappa’s argument as being that the authority to deduct Workmen’s Compensation payments from pension benefits is provided for in the Charter but Council has never acted by ordinance to specifically provide for it in the Police Pension Plan.
Mr. Christiansen asked if it would be possible that the Court could issue a writ of mandamus action and also filed action in the Superior Court by way of appeal. At this point it is impossible to predict what the Court findings would be.
Mr. Witt pointed out that total disability amounts to 75% of the normal pay received by a police officer and Workmen’s Compensation is 66 2/3% of total normal pay up to certain limitations. Therefore, the total of the two payments amounts to 141 2/3% of total normal pay.
Mayor Carroll declared the hearing closed.
Mr. Richter moved for denial of Mr. McCusker’s appeal, seconded by Mr. Shevock.
It was Mr. Christiansen’s opinion that the appeal is based on what is actually written in the City of Dover Charter and Code and not what the intent of Council was at the time of enactment. He felt that if Mr. McCusker’s appeal was denied that Council would be acting out of order.
Solicitor Rodriguez questioned the intent of Mr. Richter’s motion in that a motion to deny the appeal provides for continuing the policy of deducting workmen’s compensation payments from Mr. McCusker’s total disability pension benefits and the motion also upholds the decision of the Retirement Committee that Mr. McCusker remain on permanent disability.
Mr. Richter stated that the aforementioned is the intent of his motion.
Mr. Richter’s motion was carried by a roll call vote of six (6) yes, one (1) no (Mr. Christiansen) with Mr. Boaman absent.
PUBLIC HEARING - ADMINISTRATIVE REZONING - REQUESTED BY CITY OF DOVER PLANNING COMMISSION - ENLARGE IO ZONE IN THE HISTORIC ZONE FOR PROPERTY ON THE EAST SIDE OF SOUTH NEW STREET, CONTIGUOUS TO STATE OF DELAWARE PROPERTY
A public hearing was duly advertised for this time and place to consider an administrative rezoning request by the City of Dover Planning Commission that would enlarge the IO zone in the Historic Zone for property located on the east side of S. New Street, contiguous to the State of Delaware Museum property.
Mayor Carroll declared the hearing open.
There was no one present to speak for or against the rezoning request.
A letter from the General Services Administration, Philadelphia, Office, stated their affirmative feelings towards the rezoning.
Mayor Carroll declared the hearing closed.
By motion of Mr. Christiansen, seconded by Mr. Bulley, Council by a unanimous roll call vote (Mr. Boaman absent) adopted the following ordinance:
AN ORDINANCE AMENDING THE ZONING ORDINANCE AND ZONING MAP OF THE CITY OF DOVER BY CHANGING THE ZONING DESIGNATION OF PROPERTY LOCATED ON THE EAST SIDE OF S. NEW STREET, CONTIGUOUS TO THE STATE OF DELAWARE MUSEUM PROPERTY.
WHEREAS, the City of Dover has enacted a zoning ordinance regulating the use of property within the limits of the City of Dover, and
WHEREAS, it is deemed in the best interest of zoning and planning to change the permitted use of property described below by enlarging the IO zone in the Historic Zone.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF DOVER, IN COUNCIL MET:
1. That from and after the passage and approval of this ordinance the Zoning Map and Zoning Ordinance of the City of Dover has been amended by enlarging the IO zone in the Historic Zone of property located on the east side of S. New Street, contiguous to the State of Delaware Museum property.
ADOPTED: JULY 9, 1984
LEGISLATIVE AND FINANCE COMMITTEE REPORT
The Legislative and Finance Committee met on July 6, 1984 at 12:00 noon with Chairman Boaman presiding.
County and Municipal Police Pension Laws
Mr. Shevock stated that the meeting was held specifically to discuss legislation by the General Assembly concerning the County and Municipal Police Pension Laws, and as a follow-up to the recommendation of the City of Dover Police Pension Committee that Council approve an ordinance to incorporate the provisions of the new law. The new pension law will cover City of Dover police officers who were hired during and after September 1982.
All funds pertaining to pensions for these police officers have been set aside and a separate account maintained.
Mr. Shevock stated that his committee has been working with Mr. Dannemann and Mr. McArdle for the past two years to open up discussions on the possibility of a unified state law to cover county and municipal police officers. The new law has been approved by both the House and Senate of the State of Delaware and will become effective on July 1985, but Mr. Shevock advised Council that it will be necessary for the adoption of an ordinance to implement the new law.
Mr. Shevock moved to authorize the City Solicitor to compile an ordinance that would implement the County and Municipal Police Pension for presentation at the next Regular Council Meeting. The motion was seconded by Mr. Weyandt and unanimously carried.
CHIEF OF POLICE PROPOSAL - PARAMEDIC SERVICE
A memorandum from Mayor Carroll, with an attached proposal from Chief Klenoski, suggested a new branch of the City of Dover Police Department which would include police officers trained as paramedics. Chief Klenoski pointed out that full-time police officers on patrol would be available 24 hours per day for 365 days per year and would eliminate some of the problems now being experienced with the present paramedic service.
Mayor Carroll suggested that the proposal be referred to committee for an ultimate recommendation to the full Council.
Mr. Weyandt moved that the proposal be referred to the Legislative and Finance Committee, seconded by Mr. Christiansen.
Mayor Carroll suggested that the proposal be submitted to the chairman of the four standing committees.
Mr. Weyandt withdrew his original motion as did Mr. Christiansen his second.
Mr. Witt moved that Chief Klenoski’s proposal be referred to the chairmen of the four standing committees, seconded by Mr. Christiansen and unanimously carried.
TRAFFIC LIGHTS - ENTRANCE TO DOVER MALL - PROPOSAL TO CYCLE FOR CAUTION AFTER MALL CLOSING
Mr. Witt advised Council that he observed the traffic lights on Route #13 at the entrance to the Dover Mall still operating normally versus blinking caution after the Mall hours. He noted that the traffic lights cause backups on Route #13 unnecessarily after the Mall has closed and suggested that the signals be set to blink caution to expedite vehicular traffic.
It was noted that the traffic control devices are under the jurisdiction of the State of Delaware.
Mr. Witt moved to authorize the City Manager to correspond with the proper authorities of the State of Delaware, investigating the possibility that the traffic lights at the entrance of the Dover Mall be put on flash 30 minutes after closing of the Mall until 30 minutes prior to opening of the Mall. The motion was seconded by Mr. Christiansen.
Mr. Christiansen inquired concerning the effect that the change would make on a recently installed pedestrian light at the intersection.
It was Chief Klenoski’s opinion that the proposal should be studied fully before any change is initiated.
Mr. Witt’s motion was unanimously carried.
CORRESPONDENCE
Notice of Historic Preservation Workshop for Kent and Sussex Counties
A notice was received that a Historic Preservation Workshop, conducted under the offices of Delaware’s Community Development Block Grant Program will be held at the Kent County Levy Court Building on Thursday, July 12, 1984 between the hours of 9:30 a.m. and 3:30 p.m. The workshop is designed to examine historic preservation as a tool for economic development and to acquaint communities with the Historic Preservation Regulations of the Community Development Block Grant Program.
Delaware Community Development Block Grant Fund - Manter, Lafferty & Mitten
A letter from Manter, Lafferty & Mitten advised Council of their examination of the statement of source and status of funds and statement of program costs applicable to the Delaware Community Development Block Grant #21-82.
Based on the examination by the firm, nothing came to their attention to indicate that the City of Dover had not compiled with provisions of the grant program.
Attached to the statement presented by Manter, Lafferty & Mitten was a detailed report on appropriations on expenditures for the period of July 1, 1983 through June 20, 1984.
Mr. Shevock moved to acknowledge receipt of the audit, seconded by Mr. Christiansen and unanimously carried.
Meeting Adjourned at 8:20 P.M.
WILLIAM H. WILLIS
CITY CLERK
All orders, ordinances and resolutions adopted by City Council during their meeting of July 9, 1984, are hereby approved.
CRAWFORD J. CARROLL
MAYOR
July 16, 1984
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