Buffalo, N.Y. (WBEN) - During the COVID-19 pandemic, much was made about top department heads and their deputies in Erie County government receiving overtime pay, and the amount of overtime pay some were receiving.
With that in mind, Erie County Comptroller Kevin Hardwick went to work coming up with a policy change on overtime in the county for department heads and top appointees. This included a series of reports last year, where Hardwick's office learned some people were not true salaried employees, and they were eligible for overtime under the Fair Labor Standards Act.
By the end of last year, people came around, and it was agreed to make certain people true salaried people, making them exempt from provisions of the Fair Labor Standards Act. In return, those people were given significant pay increases.
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However, a report from The Buffalo News indicated that more than a dozen administrators in the Erie County Sheriff's Office still received holiday overtime pay in 2023.
Hardwick says so far this year, through the Thanksgiving holiday, those employees in the Sheriff's Department have collected around $74,000, and he's unsure how many are going to be working this Christmas and New Year's.
"This past summer, some folks in my office discovered that the Sheriff was still claiming for his employees, so called, holiday worked pay. Everybody, of course, gets paid for working on a holiday, but if you actually come in and work on a holiday, it used to be you would also get holiday work pay - basically overtime - at time-and-a-half. We thought this was gone, it turns out it wasn't. Employees in the Sheriff's Office have been getting significant amounts of holiday worked pay," said Hardwick in an interview with WBEN. "My position has always been, 'Overtime is overtime'. When the Legislature said last year, 'No more overtime, no more compensatory time, because you're getting these huge raises,' I thought the issue was done. And apparently it is it."
According to Hardwick, the Sheriff's Department was given greater job group upgrades, because the county acknowledged they are 24/7 people, and they're out there in times of emergency.
"If they're going to give up their overtime, if they're going to give up their compensatory pay, then they should be compensated even more than, perhaps, other employees. So there are a number of Sheriff employees who this year, in their base salary, are making $30,000 or more than they were last year," Hardwick explained. "The reason for giving them such a big increase is, again, they were agreeing to give up their comp time and their overtime. That's where we thought we had it, and the Legislature passed that when they adopted the budget last year, and we thought Jan. 1, we were free and clear. Nobody's getting comp time, nobody's getting overtime."
In a recent conversation with Erie County Sheriff John Garcia, he told Hardwick that in January, his office had a series of conversations with the administration and with the personnel office. It was the personnel office that told him the Sheriff's Office was eligible for the holiday overtime pay.
This was unbeknownst to Hardwick, as he and his office are trying to solve the mystery of where that miscommunication on the matter came from.
"My feeling all along, and the legislative resolution is written in English: 'They would be ineligible to collect compensatory time or overtime going forward.' Again, overtime is overtime. I don't think overtime on a holiday is any less overtime. It's still paid at time-and-a-half, and it's still overtime," he said. "I guess it comes down to the meaning of overtime, and that's the confusion. I can understand the confusion on the Sheriff's part, especially since someone in the personnel department apparently went along with them. And there may be confusion there within the department, I don't know."
In his recent findings, Hardwick says the only county department as part of last year's agreement that has received holiday overtime pay is the Sheriff's Office. While he adds there are a couple of stray cases where some people may have received overtime that shouldn't have, Hardwick believes it probably was for stadium pay and someone put in the wrong code.
A couple of weeks ago, Hardwick says the personnel commissioner put out a clarification of the policy, saying no one would be eligible for holiday work pay anymore going forward. When Hardwick met with Garcia last week on the matter, the County Comptroller says the Sheriff felt this wasn't good enough.
"He was looking for the Legislature to clarify this. He wasn't going to take the word of the personnel commissioner that this change could be made," Hardwick explained. "He thought his people should still get holiday work pay. I said to him, 'Well, let's ask the Legislature to decide it. I'm going to be on the opposite side of this issue, but at least we'll get clarification.'"
That's why Hardwick put in a resolution last week with the Legislature to discuss the issue of holiday overtime pay this coming Thursday to get that clarification along with the Sheriff. Hardwick has asked county lawmakers to give it immediate consideration and not send it to committee, as this is their last scheduled meeting of the year.
"If they don't decide this on Thursday, then we're going to miss Christmas and New Year's, when I assume some people will still get this holiday overtime pay," Hardwick said. "I'm on one side, obviously the Sheriff is another, and that's fine. We agreed to disagree on this, but I think we were both looking for legislative clarification, and hopefully that's what we'll get on Thursday."
When this matter was voted on in the Erie County Legislature last year, all 11 members voted in favor of county department heads and top appointees being ineligible for overtime. 10 of the 11 lawmakers who voted last year are still in the Legislature, with Joe Lorigo (R) being the only one who has since left office.
In terms of what kind of clarity Hardwick will be looking for Thursday, it will come down to the Legislature's exact meaning of overtime, and whether it covers all overtime or overtime except any that fall on holidays.
"My fear is if we don't get it from the Legislature, if they say that holiday work pay is not the same as overtime, then what does that mean for the other people in the group outside the Sheriff's Department? Does that mean that people in DPW or people in the Health Department or other departments can get the holiday pay? Will we see that start happening? I don't know the answer to that one, and I don't think we want to regress there," Hardwick said. "I don't think we want to go back to where we were a couple years ago when I entered this office, where everybody was complaining about all these high paid people getting tens of thousands, and even more, in overtime. The agreement last year was supposed to take care of that, and this has been a little hiccup. I think we need to clarify that, and hopefully, hopefully, this will be done on Thursday."
WBEN did reach out to the Erie County Sheriff's Office on the matter and received this statement from Sheriff Garcia:
"We clarified this matter back in December of 2022 with the county. 'Holiday worked' is not overtime. The two are coded differently. For historical reference, 'Holiday worked' was something that predates management confidential employees becoming eligible for overtime compensation which occurred somewhere around 2014. Remember, unlike other exempt employees, where they work for county entities that simply close down their operations on holidays and weekends, the Erie County Sheriff’s Office exempt employees are ordered into work on holidays by the Sheriff when needed.
"The Erie County Sheriff’s Office is a 24/7, 365 day per-year operation. We are not doing anything differently than past practice which has been in place for decades. Irrespective of the hours our exempt employees work beyond their 40-hour work week, they are not compensated for these additional hours. Incidentally, these extra hours come about at all hours of the day or night as public safety is a very unpredictable profession."