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County spends big money on labor attorneys

LOCKPORT – Relations between Niagara County and its six unions aren’t what they used to be.

“We used to settle more. Now it seems like we argue a lot more,” said James Briggs, chief negotiator for the unions that represent sheriff’s road patrol deputies and probation officers.

Some in county government are wondering if the recent problems stem from the denial of automatic annual pay raises, although union leaders don’t think so.

But coincidentally – or perhaps not – the county’s costs for its outside labor attorneys are immense.

A compilation of two years’ worth of invoices, obtained by The Buffalo News, shows that the county paid a total of $352,753 during 2011 and 2012 to the Buffalo firm of Jaeckle Fleischmann & Muegel, which handles most of the county’s labor issues, from grievances and disciplinary actions to contract bargaining.

Since County Manager Jeffrey M. Glatz took annual pay raises, called “step increases,” out of the 2012 county budget, the number of grievances, and the county’s legal costs, have been increasing.

Glatz announced the end of steps in October 2011. From November 2011 through the end of 2012, the Jaeckle Fleischmann bills showed 16 grievances which have no apparent connection with any particular employee’s personal issues. From January through October 2011, there were only eight such cases mentioned in the bills.

The county spent $219,173 with Jaeckle Fleischmann in 2012 alone, which was nearly $80,000 more than it spent in 2011. It was the county’s largest expenditure for outside counsel since 2008.

William Rutland, president of the county’s blue-collar union, the American Federation of State, County and Municipal Employees, said he had a recent conversation with a county department head recently who accused him of taking out the union’s ire over the steps in the form of increased grievances.

“I told him I don’t believe that’s true. We’re going to defend the contract all the time,” Rutland said.

“Nobody’s brought up a correlation to me. It doesn’t mean it doesn’t exist,” County Attorney Claude A. Joerg said.

“I don’t think there’s a connection with the step increases,” Briggs said. But he said the current practice of hiring outside lawyers isn’t helping labor relations.

The county has been using outside labor counsel since 2004, when then-County Manager Gregory D. Lewis recommended the move. Before then, the unions usually dealt with county attorneys and human resources staffers, such as former Human Resources Director Bruce R. Fenwick, who was fired in 2003, and Labor Relations Manager Robert L. Schuman, who died in 2006.

“You can say what you want about Bruce Fenwick and Bob Schuman, but they handled arbitration and they handled negotiation,” Briggs said. “Years ago it wasn’t uncommon for a bunch of legislators to sit down with the unions. … Now the GOP [majority of the Legislature] says, ‘We’ve got to hire lawyers.’”

The Jaeckle firm billed the county $30,717 for bargaining sessions between May 2011 and December 2012, but those negotiations have proven fruitless.

All six union contracts expired at the end of 2011, and so far none of them are close to settling.

Rutland said as far as he knows, he’s the only union head actually negotiating at the moment.

“We’re still meeting. I don’t think any of the other unions are,” Rutland said.

The big issue is health insurance. “The county’s asking for contributions,” Rutland said.

“It takes two,” Glatz said when asked if the county has poor labor relations. “In fact, we had a good exchange with AFSCME [Monday]. It’s the flavor of what’s happening out there with labor relations in general. You’ve got increasing pension costs, health insurance and nice benefit packages. Somewhere, those have to be addressed.”

Briggs said he hasn’t had a bargaining session for his unions since October 2011, because he demands that the county supply him with data about the impact of the health insurance changes it seeks, and that hasn’t been forthcoming.

“This union will not bargain in the dark until we know the value or pain that’s going to come from agreeing to or denying the county’s proposals,” Briggs said.

Glatz said the county has declared an impasse with the correction officers’ union. Talks with the Civil Service Employees Association, the white-collar union, have been on hold because of an illness suffered by the CSEA’s regional negotiator.

The old contracts continue in force until they are replaced, thanks to a state law known as the Triborough Amendment. The county’s lawyers found language in the local contracts that they regarded as making the step pay increases neither mandatory nor automatic, as they had been deemed in the past.

Some county officials have said privately that they believe the unions aren’t serious about signing new contracts because the county will insist on givebacks. By not making a new deal, the current benefit levels remain in force.

The longest-running labor impasse in the county is between Niagara County Community College and its Faculty Association – seven years and counting.

NCCC doesn’t use the county government’s labor law firm, instead using the Buffalo firm of Hodgson Russ.

When Lewis started the practice of contracting out labor-related legal work, he and the Legislature chose the Buffalo firm of Damon & Morey.

Joerg said the county switched to Jaeckle Fleischmann in 2011, after three Damon & Morey attorneys who had handled the county’s work – James N. Schmit, Melinda G. Desare and Sharon A. Swift – moved from the Damon firm to the Jaeckle firm.

Joerg said the old system of assigning one of his part-time assistants to labor matters proved impractical.

He said, “I don’t think one person could have possibly handled all the work. [With Jaeckle Fleischmann] you’re not just getting one person. Just look at the expertise you get.”

The most expensive cases in the firm’s $175-an-hour bills are situations involving individual employees that blew up into major court cases.

The biggest bill of all during the 2011-12 period was $66,957 for the case of Mary Webb, head of the county’s former Rape Crisis Services unit in the Mental Health Department.

In 2009, the county outsourced that service and Webb was given new duties that required her to work three days a week in Lockport and two days a week in Niagara Falls. Webb, who had previously worked only in the Falls office, objected.

She also was denied a promotion at about the same time, and asserted that she was a victim of age and racial discrimination.

The state Division of Human Rights denied her claim, so she sued the county in U.S. District Court. In November 2012, Judge William M. Skretny threw out her case, declaring, “This court cannot act as a super personnel department that second-guesses Niagara County’s business judgments.”

The second-highest tab was $48,673 for the still-unsettled case of Cassandra Leverette, a dishwasher in the county Office for the Aging food preparation program.

Leverette, an African-American, claimed she was the victim of racial harassment by a white supervisor. She said she was treated unfairly when she was ordered to lift 75-pound food containers when she had a doctor’s note saying she was allowed to lift no more than 25 pounds. Leverette also said while she was being ordered to lift heavy objects, a pregnant white woman in the department was being allowed to avoid the work of cutting vegetables.

The county’s lawyers have been trying to get the case dismissed from federal court on various legal grounds; the merits of Leverette’s claim have so far not been litigated.

The county spent $24,562 in legal fees on an unsuccessful attempt to fire Patricia Payne, a Social Services supervisor.

Payne was the boss of Michael J. Albrecht, a caseworker who pleaded guilty in 2009 to a felony for taking bribes for seven years from a collection agency that wanted confidential Medicaid case information. The agency owner was convicted of two felonies and pleaded guilty to four others. Both were sentenced to probation.

Albrecht also cost the Medicaid program more than $900,000 by improperly approving Medicaid reimbursements to hospitals for services even though the legal criteria for approving them hadn’t been met, the state Attorney General’s Office said.

Joerg said the Payne arbitration resulted in her demotion and an order that she wasn’t entitled to back pay, but the county wasn’t allowed to fire her.

Other well-publicized cases also ran up substantial legal bills.

The county spent $34,920 on a disciplinary process against Sheriff’s Deputy Kevin J. Rohde, who pleaded guilty to child endangerment in connection with a sexual encounter with a 13-year-old in 1999, when Rohde was 18, years before he joined the Sheriff’s Office. Rohde resigned in January.

Through the end of 2012, the county had spent $21,898 on disciplinary measures against Corrections Officer David B. Elliott, charged with sexually abusing a female jail inmate. Elliott’s criminal case is still unresolved and he is suspended with pay.

The investigation of Refuse Disposal District Director Richard P. Pope, who was accused of violating county policies on residency and personal use of county vehicles, cost $14.765 in legal fees. Pope, who had been suspended for two months, resigned Jan. 2.