County questions 'comp' time for a worker
File photo by Steve Myrick
The Dukes County Commission has asked its attorney to determine whether T.J. Hegarty, who runs the one-man integrated pest management (IPM) department, is legally entitled to the extensive compensatory time he has claimed.
"What I have requested is that we get a legal ruling from our lawyers, and that the personnel board be made aware of that, and let the county manager know," commissioner Thomas Hallahan of Oak Bluffs said. "They need to find out if his position is exempt for overtime and comp time."
Earlier this year, commissioners directed county manager Russell Smith to eliminate what's called comp time that is approved for Mr. Hegarty.
"We had so much to pay out in salary for this department," commission chairman Tristan Israel of Tisbury said at a November 16 meeting. "We took into account, maybe he's not doing so much in February. That should be accounted for in the 40-hour work week, based on the job description."
At a November meeting of the county advisory board, members questioned Mr. Smith and county commissioners about the amount of accrued comp time in the IPM department. The county advisory board (CAB), includes one selectman from each Island town, and acts as a financial watchdog for county spending.
Several county commissioners said they were surprised by the comp time owed Mr. Hegarty.
"This is where there need to be very careful records," commissioner Carlene Gatting of Edgartown said at the November 16 meeting. "We were very express and direct in saying there can't be any more comp time."
"T.J. accumulates comp time because he has too much to do in his job description in his work week," Mr. Hallahan said at that meeting. "That's not a CAB issue, that's not even a commissioner's issue, that's a managerial issue."
Mr. Smith defended his management of the department at the November meeting.
"There's a time of the year when it's really busy," Mr. Smith told commissioners. "There's a time of year when there's not much to do, February and March, as far as rodent control. If we put in more time when it's needed, that's okay with me, as long as it's reasonable, as long as it's not abused. I've asked Mr. Hegarty to ask me in writing for comp time."
Plus or minus
The accounting and budgeting for the IPM department was further complicated this year, when Oak Bluffs voters opted out of the pest control program and the county took on a mosquito testing program.
Four years ago, the county began to shift the cost of its integrated pest control management, commonly known as rat control, to the six Island towns. Each year, the county manager submits a warrant article to voters at annual spring town meetings. Four years ago the towns assumed half of the cost of the programs, and each year the town share has increased by 10 percent. The cost is divided, according to an equalized valuation formula.
At next spring's annual town meeting, voters in each of the six Island towns will be asked to pay 90 percent of the cost. In 2013, they will be asked to assume the entire cost of the county program. That cost is in addition to the assessment each town pays for the county's operating budget.
Last year, for the first time, one of the towns rejected the funding request. Oak Bluffs selectmen did not include the county's request for $5,795 in the town's operating budget, which was approved by voters at the annual town meeting. At a special town meeting in June, voters rejected a warrant article asking again to fund the program.
Also in the current fiscal year, the county resumed a mosquito testing program, funded by a $700 payment from each of the town's boards of health. Mr. Hegarty administers the program, which involves trapping mosquitoes and shipping them to a state lab to determine if the insects carry West Nile Virus or Eastern Equine Encephalitis. According to Mr. Smith, there was less work to do in Oak Bluffs after the town opted out of the program, but new pest control contracts with private businesses and the addition of the mosquito testing program roughly equaled the amount of funding the county lost when Oak Bluffs opted out. He said no reduction in hours for the IPM department was necessary.
"I would say that the amount of work that's being done in the busy season has gone up," Mr. Smith said in a phone interview with The Times. "I would say the comp time has probably gone down some, but it hasn't disappeared, and I don't think it will."
In fact, according figures cited by Mr. Smith in a phone interview, the amount of accrued comp time increased from last year to this.
Mr. Smith said in late November that Mr. Hegarty had accumulated 50 hours of comp time. He said at the same point in the previous year, Mr. Hegarty had accumulated 35 hours of comp time. Mr. Smith said some variation should be expected because of the fluid nature of the IPM department's seasonal duties.
"I don't think it denotes accurately what's happening," Mr. Smith said. "I think some of the bigger contracts were closed out earlier this year."
Mr. Smith said he ended Mr. Hegarty's practice of claiming comp time at a time-and-a-half overtime rate for hours worked beyond the 40-hour work week. He said all comp time is now accrued at regular rates. County treasurer Noreen Mavro-Flanders asked whether that is legal under federal and state wage laws and said a labor expert advised Mr. Hegarty that he was entitled to comp time at an overtime rate.
At the November meeting, several commissioners questioned whether Mr. Hegarty is keeping detailed records of his work. Mr. Hallahan said a strict allocation of time would give the commissioners a better picture of the program, including whether comp time is necessary.
"It should go down, because Oak Bluffs is not part of the service," Mr. Hallahan said. "I think there needs to be really clear documentation. For the integrated pest management program, I think it's really important for all six towns. What are the hours you're doing in each town? I know it varies during the season, but I think towns will want to know if they're getting their bang for the buck."
Ms. Gatting questioned the value of new revenue to the program from private businesses, if the county has to issue comp time in order for Mr. Hegarty to do the additional work.
"If you have private individuals that are making up this shortfall that's fine, but if it involves comp time," Ms. Gatting said, "where is the benefit of the additional private contracts? You're losing the benefit if you're going to have to pay comp time. It really has to be very carefully monitored, the time and the record keeping."
Mr. Hallahan said careful record keeping could give the commissioners more options.
"If anything, we might end up having a part-time seasonal employee," Mr. Hallahan said. "There are some creative things that we could do that are cost-effective. You could get an intern for $15 an hour."
In a phone interview with Mr. Smith on Nov. 29, and in a follow up email that day, The Times asked to see the written requests for comp time.
On Dec. 16, in another written request, the Times asked for public records showing written requests for comp time from the IPM department, and records of comp time awarded and comp time taken, dating back one year. On Dec. 20, The Times asked for the records once again. Mr. Smith has not made any of those public documents available.
The only official response to the public records request came 19 days after the original request. In a one-line letter, dated Dec. 21, Mr. Smith wrote, "We have received your formal request under the public information act and will respond within the alloted time."
According to Commonwealth of Massachusetts Regulations (CMR), issued pursuant to the public records law, records must be released in a timely manner.
According to CMR 32.05(2), "Every governmental entity shall maintain procedures that will allow at reasonable times and without unreasonable delay access to public records in its custody to all persons requesting public records. Each custodian shall comply with a request as soon as practicable and within 10 days."
Contacted on Dec. 21, Mr. Israel, chairman of the county commission, had no comment on the county manager's failure to make the records available. Mr. Israel said, in his opinion, Mr. Smith did not need to release the public records until Wednesday, Dec. 28.
"Russell has the hours, but he wants to check with counsel on what aspect he can release," Mr. Israel said. "What I did is tell him he needs to respond to you by next Wednesday. If he does not respond to you in any fashion by next Wednesday, call me. You are entitled to the information, as long as we are able to release it."