Top appointed Amherst officials, including Deputy Town Clerk Dolores Shearer, clearly are barred by a 16-year-old policy from receiving overtime pay or compensatory time off for working extra hours, according to the town's personnel director.
Patrick R. Pujolas, the personnel director, "suggested" that Mrs. Shearer give back to taxpayers 15 days of "comp" time she claimed for an extended Florida trip earlier this year.
Pujolas cited the long-standing ruling in a memo -- a copy of which was obtained by The Buffalo News -- to Town Clerk John R. Shearer, Mrs. Shearer's husband.
However, Shearer said he does not feel that the policy spelled out in the memo applies to an elected official, like himself, who has the authority to appoint his own deputies.
"I feel as though I have similar power to the Town Board because I'm elected," said Shearer, noting that many of the assistant and deputy department heads who are town employees are appointed by the Town Board.
Shearer said he "very definitely" intends to meet with Pujolas but made it clear that the memo from the personnel director has not changed his thinking on the issue.
Mrs. Shearer has been at the center of a controversy involving her use of compensatory time off and sick leave to spend part of seven weeks with him at their new Florida home in April and May.
Last week, Shearer said he would not let his wife use eight days of sick leave she claimed for part of the hiatus. He said the sick days would be charged against her five weeks of vacation this year.
But Shearer said he would let stand the 15 days of compensatory time and four personal-leave days his wife used, citing confusion about whether department heads and their deputies may take comp time for extra hours worked, and an apparent lack of written guidelines on the subject.
Pujolas claimed when the controversy surfaced earlier this month that long-standing town policy prohibits government officials -- department heads and their assistants -- from taking comp time. But he was unable to produce the policy in writing.
In the memo to Shearer, however, Pujolas said he had found a 16-year-old memorandum from then-Comptroller Donald Burkhard to all department heads "clearly setting forth the policy that department heads and assistants were not eligible for overtime."
The Burkhard memo was dated May 7, 1974, three months before the town Personnel Department was established.
After the department went into operation Aug. 4 that year, "several memoranda were sent to all department heads clearly indicating that department heads and assistants were excluded from overtime," Pujolas told Shearer.
A Nov. 8, 1974, memo to department heads listed employee titles eligible for overtime.
"You will note that department heads and assistants are NOT listed as eligible for overtime," Pujolas said.
Another memo Dec. 16, 1975, reiterated the eligibility rule, and a July 9, 1976, memo, in addition to repeating the guidelines yet again, "clearly states that compensatory time must be taken by the end of the calendar year and cannot be carried over to succeeding years," Pujolas said.
The Shearers should have checked out the rules before leaving from Florida, Pujolas asserted in his memo to the clerk.
Reached at his home, Shearer said he did not have the Pujolas memo with him but recalled that "the bulk of the 1974 memo addressed overtime."
He also noted that Pujolas has sent a memo to the Town Board suggesting that deputy and assistant department heads be allowed to take compensatory time.
Pujolas said Saturday that the memo was requested by the Town Board. It is a proposed resolution that would give assistant and deputy department heads compensatory time. The memo is intended to reflect the board's philosophy and does not mean he endorses the proposal, Pujolas said.
Mrs. Shearer, a 20-year employee of the town, gets five weeks of paid vacation each year. But she has insisted she did not take two extra weeks of vacation, claiming instead that the entire trip had legitimately been charged to accumulated comp time, sick days and personal days, and that the town still owed her five weeks.
Her husband, because he is an elected official, can take as much vacation or other time off as he wishes.
The Shearers tentatively plan to retire next fall to the new home in Punta Gorda, Fla., near Fort Myers.
"Had there been questions regarding the interpretation of the overtime/compensatory time policy, it would have facilitated matters had the questions been raised before the fact," Pujolas said in the memo to Shearer.
"Under the circumstances I do not consider the overtime/compensatory time policy a gray area; conversely, it is rather clear.
"Therefore it is suggested that the 15 days of compensatory time be charged to vacation time," Pujolas said.
"I hope the bottom line on this whole thing is that the Town Board puts something in writing so that everybody knows where they stand and what the rules are," said Shearer.