Erie County Executive Mark Poloncarz's budget proposal for next year will reclassify 93 department heads and deputies as "salaried," making them ineligible for overtime.
The policy change comes in response to public scrutiny and criticism surrounding the millions of dollars in overtime paid to political appointees and top administrators in Erie County government. But it already is drawing criticism from at least one department head, Sheriff John Garcia.
County leaders acknowledged Thursday that no other county in New York offers overtime or cash-payable compensatory time to its top executives the way Erie County has since 2020.
Both former Comptroller Stefan Mychajliw and Kevin Hardwick, the current comptroller, agree the Legislature should reconsider policy changes that resulted in commissioners and other political appointees being categorized as hourly wage earners.
"The bottom line is, we're just trying to get in line with every other county in New York State," said Benjamin Swanekamp, chief of staff to Poloncarz.
This new policy would mean executive level, non-union supervisors would receive a set annual salary and be denied any future compensatory time or overtime. Currently, only elected officials in Erie County are considered salaried. All others are considered hourly wage workers.
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The administration's new proposal comes in response to what has been previously reported by Comptroller Kevin Hardwick, former Comptroller Stefan Mychajliw, The Buffalo News and other local news organizations over the last two years: Erie County's overtime practices are at odds with all other major counties.Â
Mychajliw had reported that in 2020, 1,226 staffers received $5.9 million in overtime related to the Covid-19 health crisis, paid for with federal stimulus money. But of the nearly $6 million in Covid-related overtime paid out in federal funds, 54 political appointees received $1.3 million of it. In other words, that 4.4% of workers got 22.1% of the money.
So far this year, $688,837 in overtime pay has been given to 38 appointed administrators, according to Hardwick's office.
Under the new proposal, employees classified as "salaried" would no longer swipe in or out of the office to track time and would no longer record or accumulate comp time or overtime.
Affected administrators who would be reclassified as "salaried" must meet the following criteria:
• Earn base pay of $684 per week or greater.
• Manage a department or departmental unit.
• Supervise at least two other employees.
• Have hiring and firing authority or significant influence over hiring and firing.
Personnel Commissioner Brian Bray discussed the new policy Thursday at a meeting before the County Legislature. The Legislature would have to approve or change the policy the administration has put forth as part of the budget process.Â
Bray said the plan would move all qualifying administrators from the managerial-confidential pay scale to the Civil Service Employees Association salary scale. As a result of the change, the affected administrators would receive roughly a 2% or 3% raise.
Any changes would go into effect in January. The county still would be on the hook to pay out all comp time accrued by top supervisors through the end of this year. That is expected to amount to another half a million dollars, Bray said.
The proposed policy change would not affect all appointed administrators who are considered "managerial confidential." It would affect 93 of roughly 300 such employees. Some managerial confidential appointees have lower level jobs, including clerks and assistant district attorneys.
"During the pandemic, it might not have been the time to have this discussion," Erie County Comptroller Kevin Hardwick said. "But now that we’ve got a breather, I think this is the time to sit down and ask some of these questions."
The two departments most affected by the change would be the Sheriff's Office, with 13 affected administrators, and the Department of Social Services, with 12 affected administrators. The District Attorney's Office, County Clerk's Office, Health Department and Comptroller's Office would see the next highest number of administrators converted from hourly wage workers to salaried, at five each, according to the Personnel Department.Â
Garcia expressed multiple concerns about the proposed change. While Health Commissioner Gale Burstein was the highest recipient of cash overtime in 2020, at the height of the Covid-19 health crisis, top administrators in the Sheriff's Office have consistently represented the majority of highest paid overtime recipients.
Garcia pointed out that if overtime is denied to his top command staff, then they would earn less than many of the rank-and-file union employees who work under them and may ask to be demoted to their union titles. In addition, he said, his top administrators work long and unpredictable hours to answer public safety emergencies.
Questions regarding Burstein's overtime are simple: How much overtime did she get paid? And is there anything wrong with her receiving that money? But getting true answers is tricky because of the political haze hanging over the conversation.
"My office can't be fairly compared with other county entities," he said. "The issues include, but are not limited to, the fact that the Erie County Sheriff's Office is a 24/7, 365-day-a-year operation, tasked with responding to emergencies. Furthermore, we have more numerous and varied responsibilities than any other law enforcement agency in this county."
He suggested a more "measured approach" toward how his top administrators and chiefs are paid. Compromises may include capping overtime for chiefs and other top administrators or creating an overtime pool of money that Garcia could authorize at his discretion.
Legislator John Mills, R-Orchard Park, said the new policy shouldn't apply to the Sheriff's Office.
"Your department, sheriff, we've got to leave it alone because it's not broken," Mills said.Â
Prior to millions of dollars in federal stimulus aid being made available to county governments, non-union appointees classified as "managerial confidential" were generally ineligible for overtime.
But in 2020, these non-union employees – particularly top department leaders and Sheriff's Office administrators – were allowed to collect unlimited amounts of overtime pay for Covid-related response work.Â
In 2021, to limit cash overtime, the administration adopted a new policy that required managerial confidential employees to exceed 200 hours of comp time before they could begin collecting cash overtime. But that same policy, which raised the comp time cap from 80 hours to 200, also allowed appointees to cash out all comp time above 80 hours at the end of each year. The county contended that this was to comply with the Fair Labor Standards Act.
Hardwick's year-end report for 2021 indicated that administrative appointees cashed out $700,000 in comp time at the end of last year.Â
He called the administration's policy change a step in the right direction, given the public outcry.
"In the end, this is decision, of course, by the Legislature and the executive," Hardwick said. "It's certainly something I would be supportive of. The devil is in the details."Â