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HomeMy WebLinkAboutAgenda - 02-08-2005-2bORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: February 8, 2005 Action Agenda Item No. Q-6 SUBJECT: Resident Caretaker for Little River Regional Park DEPARTMENT: Personnel and Recreation and PUBLIC HEARING: (Y/N) No Parks ATTACHMENT(S): Memorandum regarding use of Resident Caretakers in County Parks INFORMATION CONTACT: Elaine Holmes, Personnel Director, Extension 2550 Lori Taft, Recreation and Parks Management Director, Extension 2673 TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: To receive information on possible use of a Resident Caretaker in Little Regional Park and provide direction to staff. BACKGROUND: Attached is a memorandum from Personnel Director Elaine Holmes regarding "Use of Resident Caretakers in County Parks." This outlines the possible functions for a resident caretaker at Little River Regional Park, the applicable legal requirements and available options. FINANCIAL IMPACT: Costs of a Resident Caretaker would be contingent on the direction the Board wishes to pursue. RECOMMENDATION(S): The Manager recommends that the Board discuss the possible use of a Resident Caretaker at Little River Regional Park and provide direction to staff. ?>?nte a! oa Attachment .iy,?b t>ts0>> Orange County Personnel Department 208 South Cameron Street Post Office Box 8181 Hillsborough, NC 27278 MEMORANDUM Elaine Holmes Tel (919) 245-2550 Director Fax (919) 644.3009 www.co.orange.nc.us February 8, 2005 TO: Orange County Board of Commissioners John Link, County Manager FROM: Elaine Holmes, Personnel Director SUBJECT: Use of Resident Caretakers in County Parks The Manager asked that I review and report on the possible options as to the use of Resident Caretakers in County Parks. The question arises in relation to Little River Park which has a residence available. 1. Possible Functions of a Resident Caretaker Attachment 1 is a list of possible duties for a Resident Caretaker for Little River Park as these were proposed by the Recreation and Parks Management Director. To facilitate consideration of the options, I have sorted the list into duties that pertain to the residence itself and duties that pertain to the park. As you will note, the duties are a combination of security, cleaning, maintenance, operational and customer service duties. These range from relatively unskilled duties to duties requiring significantly more training and experience. Many of the duties relate to evening, night and early morning activities. 2. Applicable Legal Requirements The available options and how these may be configured are impacted by Federal law and regulations, including Internal Revenue Service regulations, the Federal Fair Labor Standards Act, and Landlord/Tenant law.. Internal Revenue Service regulations prescribe who must be treated as an employee and who may be treated as a contractor. As a general rule, anyone who performs services over which the County controls what will be done and how it will be done is an employee. If the County directs only the results to be accomplished and not the means or methods of accomplishing the result, the person may be treated as a contractor if they otherwise qualify. An Equal Opportunity/Affirmative Action Employer -2- Attachment 2 lists some of the IRS guidelines for determining an employee versus an independent contractor relationship. Please note this is fairly complex area of law, regulation and court decisions. Among other things, there is no one factor that is controlling. The IRS regulations require that the employer withhold income taxes, withhold and pay social security and Medicare taxes and provide unemployment compensation for an employee. This is not required for an independent contractor. • The Federal Fair Labor Standards Act (FLSA) and regulations also prescribe when an employment relationship exists. It uses similar criteria as those of the IRS. The County is covered by FLSA. • Beyond the above law and regulations, there a number of landlord/tenant laws that prescribe the relationship between a landlord and a tenant. Please note that a tenant is not a contractor. Of importance in considering options for a resident caretaker are laws related to eviction that generally favor the tenant. 3. Examples of Caretaker Arrangements We have identified two examples of current resident caretaker arrangements in the area: • OWASA - Employs a Lake Warden and two Senior Assistant Lake Wardens as resident caretakers. All three are permanent employees who are paid for hours worked and receive benefits. They are required to live in residences at University Lake and Cane Creek as part of their employment and they pay rent at a reduced rate. Wake County - Employs a Parks Manager located at Falls Lake. The Parks Manager is a regular permanent employee who receives benefits. The employee works a 40-hour schedule including one rotating weekend and serves on call. The employee lives in the house rent-free but is required to pay utility costs. 4. Available Options After consideration of all of the above, I see the following possible options for providing a resident caretaker. Option A - Resident Caretaker As County Employee With this option, the caretaker would be a County employee under an arrangement similar to that provided by OWASA. During the recruitment process, the County would specify that the employee live in the residence as a condition of employment and also specify that residency ends when employment ends. Since the employee would be non-exempt under FLSA, the employment agreement would include what is called a "Reasonable Agreement" for FLSA purposes that would spell out the work duties and work schedule. Through this the County would protect -3- itself from the possible situation where all the hours in the day (24) are claimed as work time. Such an employee could be permanent full time or permanent part time (regularly scheduled at least 20 hours each workweek) or the employee could be temporary part time regularly scheduled 15 hours a week or less. If the employee were permanent full time, he or she could be assigned all of the duties on the Attachment 1 list as well as possible additional duties. If the employee were permanent part time, the duties list could be tailored to this. If the employee were temporary part time 15 hours or less, then the duties could be limited to such functions as those shown in Items 5 - 14 on the Attachment 1 list. I have not included a temporary full time or temporary part time with hours greater than 15 hours per week employee as an option because the caretaker functions are on- going in nature and are not seasonal or short term. (County policy provides that a temporary employee may continue on an indefinite basis if regularly scheduled for 15 hours or week a less each week since such an appointment is not eligible for employee benefits.) Option B - Tenant Only This option would provide for a landlord/tenant relationship only. With this the tenant would occupy the residence, pay rent and perform those functions specified on Attachment 1 as "For the Residence." It would provide for a physical presence in the residence but not for the other caretaker duties. If the Board desired, it could authorize another Recreation and Parks position to address the other needs and duties. I have not included "independent contractor" as an option. I do not believe this is an option based on the: Applicable law and regulations, Duties to be performed, The control the County needs and desires over these functions and On-going nature of the relationship. 5. Impacts Option A- Resident Caretaker as County employee o As a permanent full time position, achieves the coverage objectives and accomplishes the duties, if it can be filled satisfactorily. o As a temporary part time 15 hours or less each workweek position, provides for needed evening and early morning coverage, even though -4- does not address all the duties, o May be a difficult position to fill because of the residency requirement.. (Potential candidates already may have housing they do not wish to leave or may be reluctant to relocate for other reasons.) o Requires funding for a temporary or permanent position. This may be offset to some extent by the rental amount, o If a permanent employee, requires that any termination be based on just cause. If a temporary employee, termination may be at will as the County decides. o If the employment ends, will require that the employee vacate the residence. If the employee is not willing to do so, requires that the County pursue an eviction process. Option B - Tenant Only o Accomplishes the objective of a physical presence in the residence. o Does not accomplish the other caretaker objectives. o If the tenant is unsatisfactory and not willing to vacate the premises, requires that the County pursue an eviction process. 6. Staff Recommendation I convened a staff work group to discuss and consider the options. This work group included Finance Director Ken Chavious, County Attorney Geof Gledhill, Purchasing and Central Services Director Pam Jones, Environment and Resource Conservation Director Dave Stancil, Recreation and Parks Management Director Lori Taft and myself. As a result of this discussion, the staff work group recommends the County pursue Option A with the caretaker as a temporary part time 15 hour or less employee with year-to-year lease for the residence. The reasons the staff work group recommends this approach are: This option offers an opportunity to test the caretaker arrangement on a trial or pilot basis. In this way, we may gain experience with what would be a new arrangement for the County. With the employee as temporary part time and a year-to-year lease, the County may terminate the arrangement on short notice if it is not satisfactory or does not meet the objectives. It would offer a possibly attractive opportunity for someone with a primary position elsewhere (not a current County employee) who is interested in secondary -5- employment (after hours) in an attractive setting. Please let me know if you have any questions or if I can provide any additional information. cc: Ken Chavious Donna Dean Geoffrey Gledhill Gwen Harvey Pam Jones Dave Stancil Lori Taft Rod Visser Attachment 1 Possible Duties for Resident Caretaker As Proposed by Recreation and Parks Management Director For Little River Regional Park For the Residence Maintain a presence in the residence to provide security against vandalism and trespassing. 2. Provide for the regular care of the residence such as to assure heating is adequate to prevent pipes from freezing, adequate propane is on hand and the like. 3. Maintain the exterior and interior of the residential structure in a proper manner/appearance. 4. Perform minor maintenance, repair and upkeep of the interior and adjacent residence grounds to include painting, mowing, trimming, carpet cleaning, appliance repair, general cleaning and the like. (Prior approval for all painting and repair must be obtained from Parks Services Director.) For the Park 5. Provide evening and night availability as determined by park management to help eliminate after-hours vandalism, theft, trespassing, night spotting/hunting, illegal camping, etc. 6. Provide emergency repairs and support, if needed, due to accidents, equipment failure, weather damage, etc., to park facilities and/or in relationship to park patrons and adjacent neighbors. 7. Complete training for certification in CPR and First Aid. Retrain to maintain certification annually or bi-annually as required. 8. React as the first-responder, within the limitations of required training, to any required emergency conditions that may arise during evening or night hours while park staff is not present. 9. Open and/or close the park when park staff is not assigned or available, with its support facilities (i.e. restrooms, trails, etc.) 10. When instructed by park staff, close/open trails due to poor conditions/improved conditions. 11.In the absence of park staff, inspect the facilities before and after each day of operation. Check/secure Park Office Check Maintenance Facility Check Restrooms Check Picnic Shelters 12. Observe and enforce hours of the park's operation. 13. Report immediately non-public hour(s) violations to 911 and the Parks Services Director or designee. 14. Performs on-call duties including: Responds to Orange/Durham Sheriff, Emergency Management and Fire Department requests for emergency assistance in the park. • Directs Orange/Durham dispatchers to the appropriate gate, staff person, and otherwise assists them. 15.Assist as assigned, with evening or night park activity as scheduled, such as camping, special programs and events. 16. Provide assistance/recommendations to support both full time and temporary park personnel. 17. Check Picnic Area/ADA Loop 18. Change or update Park information line as necessary. 19.Adhere to the facility security/maintenance and other checklist(s). 20. Complete task list as assigned by the Parks Services Director as determined quarterly with the exception of authorized holidays of closing and approved Leave. 21. As determined, perform project tasks such as: • Construction of two well houses Construction of benches, windows, doors and steps in the pack house • Construction of a shed roof on the maintenance barn • Improvements to the maintenance shed such as replace rotten logs, chink logs, roof repair, fill holes, and the like. Construction of a mulch bin using materials on site Construction of benches as needed along trails 8 22. Possess the mental and physical abilities to successfully perform the responsibilities assigned within the Park. 23. Wear assigned/issued departmental uniform (staff shirt or cap etc.) when performing opening/closing duties or any other department related duties. 24. Answer directly to the Parks Services Director or his/her designee. 10 Attachment 2 Determining Employment vs. Independent Contractor Relationship (From the Internal Revenue Service Website and "Independent Contractor or Employee..." Brochure dated 12-99) In general, someone who performs services for you is your employee if you can control what will be done and how it will be done. The courts have considered many facts in deciding whether a worker is an independent contractor or an employee. These facts fall into three main categories. In each case, it is very important to consider al the facts - no single fact provides the answer: Behavioral Control - Facts that show whether the business has a right to direct or control the worker. The business does not have to actually direct or control the way the work is done - as long as the employer has the right to direct and control the work. For example: Instructions - if the person receives extensive instructions on how the work is to be done, that suggests an employee. Instructions can cover a wide range of topics: 1. How, when or where to do the work 2. What tools or equipment to use 3. What assistance to hire to help with the work 4. Where to purchase supplies and services If the person receives less extensive instructions about what should be done, but not about how it should be done, this may suggest an independent contractor. For instance, instructions about time and place may be less important than directions on how the work is performed. o Training - If the business provides the person with training on the required procedures about required procedures and methods, this indicates the business wants the work done in a certain way and that suggests an employee. Financial Control - Facts that show whether the business has a right to direct or control the business aspects of the worker. These include: o The extent to which the worker has unreimbursed expenses. o The extent of the worker's investment in the work. o The extent to which the worker makes services available to the relevant market, o How the business pays the worker. o The extent to which the worker has the opportunity to realize a profit or incur a loss. Type of Relationship - Facts that illustrate how the business and the worker perceive their relationship. For example: o Written contracts describing the relationship the parties intended to create o Whether the worker is provided with employee-type benefits o The permanency of the relationship. o How integral the services are to the principal activity of the business.