Updated May 28: Stating COVID-19 safety protocols now in place, city discontinuing staff standby pay June 1

Jessica Neill Hoyson

This story has been clarified May 28 to distinguish between hazard pay and standby pay, and that the hazard pay is reimbursable through the federal CARES Act.

The City of Edmonds now has enough protocols in place for employee safety so that it can discontinue an emergency standby compensation program approved by the city council two months ago, at the beginning of the COVID-19 outbreak.

A total of 106 employees received the standby pay.

The status of a related hazard pay policy is up in the air and depends on  whether the stay-at-home orders issued by the state and county continue beyond June 1, the city said.

Human Resources Director Jessica Neill Hoyson updated the council Tuesday night on both the standby and hazard pay policies, part of an emergency staffing response the council okayed at its March 24 meeting.

Under the plan, employees were placed into three separate categories, each with a different level of pay depending on their situation.

Category A was for employees who had to physically report to work for at least 20% of their regular workweek. Those employees earned a 6% pay differential, with compensation recognizing the potential hazards the employee may be exposed to (for example wastewater treatment plant workers).

Category B covered employees who could perform at least 40% of their essential job functions via telecommuting. These workers received a 3% pay differential since they had less potential hazard exposure.

Category C was for employees placed on standby leave. These workers stayed home but had to be available to the city if needed. These employees were paid at their regular wage, even while at home and not working, although they may have been asked to complete online training courses.

The hazard payments totaled $57,000 in additional costs to the city during the past two months, but are reimbursable through the federal CARES Act, the city said. Edmonds will be receiving $1.2 million through that federal legislation, aimed at providing relief to cities for COVID-19 expenses.

Neill Hoyson reminded councilmembers of the reason for the Category C standby status, which was used predominately by parks and police to work split shifts. The program allowed the city to isolate a group of employees at any one time “so we always had a shift of employees available in case we had any sort of contamination of the virus in any one of our work groups,” Neill Hoyson explained.

Speaking to the decision to discontinue the standby pay, she explained that “at this point we do have enough protocols for employee safety — putting in staggered shifts, and enough PPE (personal protective equipment) to ensure that employees who are working less than 6 feet from each other do have the equipment to be able to protect themselves.”

Councilmember Diane Buckshnis asked how the city will adjust its staffing based on the governor’s phased reopening plan.

Neill Hoyson replied that under the governor’s order, external-facing services — such as reopening of city buildings — won’t happen until Phase 3 (Edmonds and Snohomish County are currently in Phase 1). At that point, the city would have to adjust how it does business by providing face-to-face services that could require more staff, she said.

Neill Hoyson also said the city will continue to promote telecommuting among its employees as much as it can, “where appropriate,” to encourage social distancing.

Councilmember Kristiana Johnson, who was the only councilmember to vote no on the March 23 hazard and standby pay proposal, had several questions for Neill Hoyson, including whether the hazard pay covered when the employee was actually exposed to a hazardous situation or for the full 40-hour week. Neill-Hoyson replied that the employee received pay for the full week, including when he or she was working from home.

“I have a problem with that,” replied Johnson. She then went on to ask Neill Hoyson for the weekly costs for all employees’ salaries and benefits, adding:”I’m trying to determine if we’re paying people for not working.”

Neill Hoyson said she didn’t have that information but would provide it.

Johnson then made a motion to suspend the pay policy until more information was provided. Buckshnis, who had seconded the motion for the purpose of discussion, said she wouldn’t support it since the standby pay would be discontinued in less than a week anyway. The motion failed on a 1-6 vote, with Johnson the only one voting for it.

Responding to Johnson’s line of questioning, Mayor Mike Nelson said that the council’s approval of the plan in March protected “the health and safety of our employees.” In particular, Nelson said that because of the split shift quarantine measures, the city could maintain essential services. “I cannot say the same for other cities,” Nelson said, adding that one city in particular had to “shut down their entire city government” when numerous workers were exposed to the virus.

“I’m very proud of the fact that our employees were overall safe because of policies that you approved,” the mayor said.

While the standby pay will go away June 1 because the city now has safety protocols in place, the status of the hazard pay is up in the air, the city said in a statement provided to My Edmonds News. If the stay-at-home order is not lifted in Snohomish County as of June 1, the city will have to abide by the rules of hazard pay until the order is lifted, the city said.

The standby pay “is regular pay. Not hazard pay,” the city said, “similar to firefighters or others who should be prepared to come in at a moment’s notice. These people are home, but can’t leave. If someone from the “on” shift tests positive, as happened to us the first weeks of the pandemic, we had to send 16 people home to quarantine for 14 days. If we did not a have a stand by shift waiting to come in, that would mean that essential service would not get done.”

In other matters, the council removed from its agenda two items because they were unlikely to qualify as necessary under current Open Public Meeting Act rules: A review of a second option for replacing the city’s aging wastewater treatment plant incinerator and discussion of the Snohomish County Public Defender Association contract renewal.

The council also held two lengthy executive sessions — closed to the public — on matters related to current or pending litigation.

And councilmembers also approved an employee separation agreement involving City Finance Director Scott James, who is leaving the city according to a source requesting anonymity. The agreement itself was not included as part of the council agenda but it was discussed during one of the  executive sessions. Following that closed session, two proposals were made in open session to change — in vague terms — aspects of the agreement language, but they were both defeated, with Councilmembers Buckshnis, Vivian Olson and Kristiana Johnson on the losing end.

— By Teresa Wippel

17 Replies to “Updated May 28: Stating COVID-19 safety protocols now in place, city discontinuing staff standby pay June 1”

  1. City Council approved 3 amendments to the Regular Agenda after last night’s roll call but failed to vote on the remainder. One of the 3 amendments added a 2nd Executive Session, this one near the beginning of the Council Meeting. Council forgot to make a 4th amendment to the Regular Agenda to add an item to Reconvene in Open Session after the newly added Executive Session. The agenda item to Reconvene usually discloses whether there will be Potential Action as a result of meeting in Executive Session.

    The added Executive Session was for the discussion of potential litigation. Why did Council not just say that the added Executive Session was for the discussion of an Employee Separation Agreement? Why did Council not indicate whether or not there would be Potential Action after discussing the Employee Separation Agreement in Executive Session?

    When Council actually did reconvene after the first Executive Session, the Mayor did not ask whether any action was required as a result of the Executive Session discussions. There was also no indication of whether City Council had reached consensus to release information regarding the Executive Session under Resolution No. 1150.

    Upon reconvening, Council’s first act was to approve the Regular Agenda as amended. They had not done this after the 3 amendments were approved. Then a motion to amend the Consent Agenda was made, a motion to “pull” the Employee Separation Agreement from the Consent Agenda and approve the remainder of the Consent Agenda. That motion passed.

    Next, Council started discussing and voting on an Employee Separation Agreement, a document that the public was not allowed to see. Council failed to start this process with a Main Motion. Instead, motions were made to amend the document. The first vote, to remove #24, passed 4-3. The second vote, to improve the wording of Section 4, failed 3-4.

    Then, City Attorney Jeff Taraday intervened in the Legislative Process to clarify the City Clerk’s vote on the first item. Why did the City Attorney intervene when the vote was clearly 4-3? Then a very confusing process followed that resulted in a change to the first vote.

    Why the 4-3 votes and such a sharply divided Council last night?

    Another question – Are Councilmembers privately emailing or texting others during what is supposed to be an Open Public Meeting?

    I was glad to see Councilmember Kristiana Johnson voice concern over how the City is handling Public comments.

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    1. Thank you, Ken, for describing the gory details of last night’s council meeting; put simply, it was a mess! The executive session, which wasn’t even scheduled, was suppose to run for 15 minutes and actually lasted more than one hour. Let’s hope that there’s some improvement in the future.

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    2. Sounds like Adrienne Fraley-Monillas may be learning from her participation on the Snohomish County Board of Health for which Lynnwood Times reports some question regarding the May 21 meeting agenda. In that meeting she and other Board members voted in favor of the County Health officer’s authority to pursue legal action against businesses that do not follow his COVID-19 directives. That position is currently held by Dr. Spitters, who was named the active Health Officer after the Board approved the involuntary resignation in lieu of termination of the previous Health Officer less than a year ago.

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  2. Thank you Ken your play by play of this meeting. It is very helpful in understanding, what took place at this meeting. Did you notice it appeared that after the 4 to 3 vote to amend the Separation Agreement and remove paragraph #24 that Council President Adrienne Fraley-Monillas was either texting or some how electronically communicating with Councilmember Susan Paine. Probably requesting that she change her vote which did happened.

    The Open Public Meetings Act (OMPA) requires that the Councilmembers and Mayor be heard by all attending the meeting. The other Councilmembers, Mayor and public couldn’t hear Ms. Fraley-Monillas electronic messages. In my opinion, this action would be another violation of RCW 42.30 and subject to legal judgement for violation of the OPMA.

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    1. I listened to the Special Meeting of the Edmonds BID this morning.
      The meeting was called for no other reason other than the following:
      1) The BID which garners it’s money from forcing Edmonds business owners by threat and intimidation to pay, or else it sends the owners out for collections, to pay their hard earned money to a failed group.
      2) The meeting was for Ed! to propose that they should be entitled to $ 30,000.00 of the CARE ACT funds, rather than those funds going to business owners or to be used by the City directly in more advertising.
      3) Time for the City of Edmonds to wake up, and shut down Ed!
      4) So funny that one board director for Ed!, complained here business was down, and she was scared of the future. Yet, she has no problem sending other Edmonds business owners out for collections so that Ed! can get their hands on others money, and wanted those with unpaid Ed! taxes to have their business licences revoked.
      And this is a business leader, don’t make me laugh.
      Keep an eye on Ed! ….. what the future holds…..we shall see.

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  3. Thanks Ron. Thanks Finis. I watched the first 18 minutes of Tuesday night’s meeting again.

    One thing that really stands out is City Attorney Jeff Taraday’s intervention into the legislative process. Councilmembers Buckshnis and Olson had just raised their hands and stated that City Council had forgotten to make a Main Motion. Prior to providing legal advice about Council’s votes on two amendments before anyone had even made a Main Motion, Mr. Taraday stated: “Before we vote on the Main Motion, Mr. Mayor, I just wanted to clarify the Clerk’s count on the motion to remove section 24 was four votes in favor and three against.”
    Why would the City Attorney do this? If the City Attorney felt there was a question about the City Clerk’s count of a roll call vote, why did he only ask about one of the two counts that had been subject to a roll call? I do not recall ever seeing a City Attorney intervene to clarify a City Clerk’s count on a roll call vote in all the years I have closely followed City Government. The vote was obviously 4-3 yes. A roll call had been conducted. What possibly needed to be clarified?

    Would he have asked for clarification if the City Clerk’s count on the motion to remove section 24 had been three votes in favor and four against?

    Hopefully the City will make public disclosure of the Separation Agreement promptly. Why all the 4-3 votes? What is in Section 24 that so sharply divided our City Council?

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    1. Ken, The separation agreement is now available on the City’s records request web site. It doesn’t shed much light on what divided the City Council.

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      1. Thanks Mike. City of Edmonds government regularly expresses support for open and transparent government. Despite this, the public was not told during the May 19, 2020 City Council Meeting that Mr. James had signed a Separation Agreement and Release the day before, on May 18, 2020. Now we know that Mayor Mike Nelson signed that same agreement on May 27, 2020, an agreement that contains a “Non-Disparagement” clause. How is a Non-Disparagement clause consistent with commitment to Open and Transparent government?

        The 2018 City Council approved another Separation Agreement during the February 6, 2018 City Council Meeting. This one was approved as part of the Consent Agenda. The Consent Agenda called it an “Employee Agreement” instead of labeling it as an Employment Separation Agreement. Amazingly, the actual Employment Separation Agreement document was not attached to the February 6, 2018 City Council Agenda Packet. Because of this, I have made a public record request for a copy of the 2018 Separation Agreement. It will be interesting to review this document and compare it to the one signed by Mr. James.

        As stated when the Freedom of Information Act (FOIA) was adopted in 1966 – No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest. I think the public interest would be served by full disclosure of why Scott James is no longer our Finance Director. I imagine it is more complicated than “James and the City agree it is in their respective bests interests to separate employment”.

        One good thing is that the Non-Disparagement clause only applies to Mr. James. The agreement does not prevent Mayor Nelson from making open and transparent disclosure to the public of the reason or reasons for this decision. Why separate employment with an experienced Finance Director during the middle of trying to manage the challenges related to Covid – 19?

        The following is taken from the May 5th City Council Meeting Minutes:
        “Councilmember K. Johnson suggested now that the City has an emergency management coordinator, it would be nice to have him be part of the presentation so the Council can meet him, understand his role and get his input on the policy, because once the policy is established, he will be implementing it. Mayor Nelson said the disaster coordinator is busy coordinating a disaster and will be coordinating it until there is no longer a disaster. At that point, he would be happy to make the disaster coordinator available to talk about policies like this.”

        If the Disaster Coordinator is too busy to participate in a City Council Meeting, I imagine the knowledge of an experienced Finance Director would have benefited the public during this challenging time.

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        1. Thank you for your continued work on this, Ken. So far what we have learned from the agreement is that our finance director was not terminated for cause or he would not be receiving a settlement of 6 months salary. And, as you have stated, the timing of this is very inappropriate. Mayor Nelson owes us an explanation.

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        2. Thanks Ron. I have forwarded some emails to the Everett Herald Reporter and I hope he will contact me.

          Another thing about this that I find puzzling is the reference to Chapter 2.35 of the Edmonds Municipal Code in the Separation Agreement and Release. Does Chapter 2.35 apply to employees working under a long-term Employment Agreement signed in 2014? Chapter 2.35 clearly says that a “Contract employee” is an employee whose terms and conditions of employment are determined by an annual contract with the city.

          I would expect the February 26, 2014 Employment Agreement to address payment for any unused leave at termination. I would check, but this is another document that was not included in the related Agenda Packet.

          The reference to Chapter 2.35 in the document signed by Mayor Nelson on May 27, 2020 may be incorrect. I do know that ECC 2.35.090(A) states that “In no event shall any employee be entitled to claim greater benefits under this chapter than those provided for by a collective bargaining agreement or employee contract covering said individual’s employment.”

          Hopefully the City will provide the February 26, 2014 Employment Agreement so all can see whether it discusses unused leave or whether it is silent on the matter.

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  4. It does contain a non-disclosure clause, which is standard, but restrains Mr Scott from talking about what happened.
    “25. Non-Disparagement. James agrees not to discuss the existence of or provisions of this Agreement with the media or to make disparaging statements about the City relating to this Agreement or its provisions. This paragraph shall not in any way prohibit James from making truthful statements in a legal or administrative proceeding, or as otherwise required by law or legal process.”
    I am not a fan of such agreements, since they make a public action by the Mayor opaque to the press. The reasons for including such a clause has only to do with stifling Mr James ability to speak freely about what happened.

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      1. Thanks for looking into the issue Teresa. It looks like a reporter from the Herald may also be investigating it. They requested “any emails sent by Mayor Mike Nelson, from Jan. 31, 2020 to May 27, 2020 that mention Scott James or his employment with the city. – The employee file for Scott James. – Any HR investigations launched since Jan. 1, 2020 surrounding Scott James.”

        I’m sure this request will be reviewed by a lawyer and heavily redacted when it is released. I wonder what happened to those promises of transparency during the campaign?

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  5. Candidates get elected by saying things and then actually acting on some of what they say.

    Things said and acted upon include, save the trees, save the whales, save the marsh, save the environment, embrace diversity, and many more. Actions often is by resolution or creating and sustaining a board or commission to work on the issues.

    Things often said on the campaign trail but not acted upon include: fix the roads, add more sidewalks, make it safer to walk on our sidewalks, and my personal favorite is anything to do with a more open government.

    Fix the roads, we know it would take a $2m permanent plan to fix and keep all our roads fixed. Read the report if you can find it on the study showing the plan.

    Add more sidewalks. In their current design with ADA and all they are very expensive per foot to add. Hard to find the data on costs and equally hard to find the plan on what we are going to do to add sidewalks.

    Make existing sidewalks safer. I notices in my neighborhood orange paint on uneven areas started showing up right after CV19 showed up. Probably some plan to grind the edges for added safety in the works. I reported a very dangerous situation to the city on the west side of the 5th near Walnut where a tree root has an uneven area that is extremely hazardous to wheel chair users. All the orange paint in the world will not make it any safer for the lady I saw have to make several attempts to “navigate” that hazard area. Why do we not fix it?

    More open government. Much of the discussion here has been having the city follow the existing laws. Ken has done a detailed job of pointing that out. If we have an “open government” as candidate say they support why do so many things need to be “open” by a public records request?

    Hopes were raised when the city decided to add a Public Information person. Will they drive the effort to make govt more open? Can’t find a job description to help figure it out, probably have to do a public records request to learn more.

    Bottom line is we have commissions for a lot of things in Edmonds, it may well be time to create a “Citizens Advisory Team for what should be included in Government that is Open. (CAT..GO for short). Seriously folks, it is time for some rational input to the city to help the candidate full fill their campaign promises. What should be on the web and available to all for free and an adequate method of finding it with out a public records request? What added information would help the citizens see how well the city is being managed? After elected, the candidates sometimes catch the “hide it virus”. Let’s provide them the “cure”.

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  6. Did City Attorney Jeff Taraday have “information” the night of May 26, 2020 that the Edmonds City Council was supposed to vote differently than Council actually voted in the Open Public Meeting? Is it reasonable for the public to wonder if he did have information about how Council was going to vote? Mr. Taraday did, after all, intervene in the Legislative Process and ask the City Clerk to clarify a roll call vote count that had clearly been a 4-3 yes vote. After his intervention, steps were taken that resulted in the 4-3 vote not staying in place.

    Also, HR Director Jessica Neill Hoyson can be seen on the May 26th video shaking her head no after the 4-3 yes vote – a vote subject to a very clear roll call. Did she also have information about how Council was going to vote?

    If Mr. Taraday had “information” about how Council was going to vote, did his client provide him informed consent to intervene into the legislative process and question a roll call vote that was very clearly 4-3?

    If privileged information was released, what is the impact of such on the attorney client privilege, including the discussions that took place in the first of two Executive Sessions held on May 26, 2020?

    Should City Council now add a future agenda item to place information relating to first May 26th Executive Session in the public record?

    The only party subject to the non-disparagement agreement is Scott James. As such, and due to the fact the public wants to know what happened, I encourage City Council to release information discussed in Executive Session as Council is allowed to do under City of Edmonds Resolution 1150.

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  7. Back in 2011, the City experienced another Employee Separation Agreement situation. City Attorney Jeff Taraday made the following comments on My Edmonds News on October 5, 2011:

    1. Jeff Taraday
    October 5, 2011 at 6:21 pm
    The Rules of Professional Conduct (RPCs), particularly RPC 1.6(a), require the following of me as the City Attorney:
    “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent….”
    The official comments to RPC 1.6 state:
    The phrase “information relating to the representation” should be interpreted broadly. The “information” protected by this Rule includes, but is not necessarily limited to, confidences and secrets. “Confidence” refers to information protected by the attorney client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
    This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.
    The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.
    A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
    I provide these excerpts from the RPCs in hopes that you can appreciate why I cannot comment on this matter. Thank you for your understanding.

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