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Arbitrator sides with ex-fire marshal in row with Zephyrhills

ZEPHYRHILLS — A grievance filed against the city by former Zephyrhills Fire Marshal Kerry Barnett was decided in his favor in arbitration Sept. 13.

Barnett was initially fired on Feb. 13, 2012, for violating the city’s policy by working another job while on sick leave. Barnett broke his toe in an off-duty incident and was placed on sick leave. He continued to work for the town of St. Leo performing fire safety inspections.

Barnett was reinstated to the position of lieutenant and his pay was cut 20 percent. He later filed a grievance against the city.

The arbitrator’s ruling presents a challenge for the city because it says that “the discipline imposed upon [Barnett] must be eliminated,” but the city no longer has a fire marshal position.

Barnett said he will ask that he be rehired as a captain since the fire marshal position has been eliminated. Barnett also will be paid for the 20 percent pay cut since his demotion.

“They should make me whole with compounded interest [on his salary] and seniority,” he said.

City Finance Director Stacie Poppel said she has not had time to determine the costs of the decision and the issue likely will be part of the Oct. 14 city council agenda. Poppel spoke on behalf of City Manager Jim Drumm who is at a city manager’s conference.

Barnett was happy with the outcome.

“We tried to settle with the city before this went to arbitration and the city didn’t want to settle,” he said. “I knew I didn’t do anything wrong.”

Former Zephyrhills Fire Chief Keith Williams notified Barnett on Dec. 27, 2011, that he was placing Barnett on administrative leave with pay pending an investigation that he violated the city’s policy.

The policy said: “Employees on sick leave, whether paid or unpaid, or leave due to a job-related illness or injury shall not engage in any work, including work at second or other jobs at home or elsewhere, without permission of the City Manager or his designee. Violation of this subsection shall be cause for immediate termination.”

Barnett said he did not know that he could not work while on sick leave. He said he never tried to hide that he was working and that Williams was aware of his working two months before he began an investigation.

“I sat on one of the Employee Policy Review committees and the sick leave was discussed. The intention of the policy was for those individuals calling out sick but then going to work their second job or those that worked when (they) shouldn’t because they were on workers’ comp,” Barnett has said.

“I never thought twice about violating the policy because I believed I knew what the policy meant and I had authorization to work my consulting company from the chief by completing a city of Zephyrhills Outside Employment Form,” Barnett added.

According to the firefighters union contract, Barnett had to make an appeal to Williams within five days of his termination. Williams rejected his appeal. Barnett then brought his grievance to Drumm, who upheld Barnett’s removal as fire marshal, but reinstated him with a demotion to lieutenant and a 20 percent pay cut.

In an email to the city council on Monday, Drumm said: “I reviewed the termination, and even though the policy says specifically if you violate this policy you shall be “terminated”, I reversed the termination and exchanged it with a demotion, leaving him still a supervisor in the rank of lieutenant. I did this because I agreed with Kerry that his years of service and relatively good performance should be considered.”

Barnett has been with the city since 1988 and was voted State Fire Marshal of the Year in 2010.

Drumm has said that labor attorney Brian Koji and City Attorney Joseph Poblick were involved from the beginning on all decisions involving Barnett. He said he believed that the decisions and the legal advice from both attorneys were valid and correct.

The arbitrator said that the ruling of no violation of policies was based on the definition of the word “work” used as an employee or an independent contractor. Barnett was an independent contractor for St. Leo.

Drumm said in his email to the mayor and city council: “The ruling was very unusual as it clearly showed that Mr. Barnett violated the rule, and then the arbitrator dismissed or minimized potential other arguments of the union, but it based its finding on the meaning of what is the definition of “work”. He highly criticized the written personnel policy for not defining the word. This reminds me of the President Clinton’s defense of in his impeachment process when his defense claimed it depends on what the definition of ‘is’ is … It appears, that if the definition were more clear, the ruling might have been upheld.”

“I believe now we need to begin a thorough review of our personnel policies manual. It is outdated and could be a better tool for managing our departments and staff,” Drumm said.

Barnett said that the 20 percent pay cut and questions about his character for the past year-and-a-half have had major impacts on his family.

“My family was impacted by a decision that should not have been. Justice is served. I didn’t do anything wrong and now the city has to make it right as the arbitrator said.”

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