1 2 3 4 5 6 7 8 KERR COUNTY COMMISSIONERS COURT 9 Special Session 10 Monday, August 16, 2010 11 10:00 a.m. 12 Commissioners' Courtroom 13 Kerr County Courthouse 14 Kerrville, Texas 15 16 17 18 19 20 21 22 23 PRESENT: PAT TINLEY, Kerr County Judge H. A. "BUSTER" BALDWIN, Commissioner Pct. 1 24 WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2 BRUCE OEHLER, Commissioner Pct. 4 25 ABSENT: JONATHAN LETZ, Commissioner Pct. 3 2 1 I N D E X August 16, 2010 2 PAGE 3 1.1 Consider/discuss, authorize Kerr County Sheriff's Office to apply with AACOG for 4 Homeland Security grant for radio inter- operability equipment and laptop computers 5 to be used in regional communications trailer in the amount of $10,557 3 6 1.2 Consider/discuss, take appropriate action 7 on consideration of an order authorizing creation of the Section 9 Castle Lake Ranch 8 Subdivision Road District 4 9 1.3 Consider/discuss, take appropriate action to dispose of approximately 22 used Sheriff's 10 Office vehicles 5 11 1.4 Consider/discuss, take appropriate action on Change Proposal #14 to contract with Kendnel 12 Kasper Construction Inc. on Kerr County Sheriff's Annex/Adult Probation Building project 6 13 1.5 Consider/discuss, take appropriate action to 14 reconsider Court Order #38141 allocating a portion of the unused space at the new Kerr 15 County Sheriff's Annex as a fitness center for Kerr County employees 7 16 1.6 Consider/discuss, take appropriate action on 17 Kerr County employee hiring freeze 29 18 1.7 Consider/discuss, take appropriate action on Change Proposal #15 and #16 to contract with 19 Kendnal Kasper Construction, Inc., on Kerr County Sheriff's Annex/Adult Probation Building 20 project 32 21 --- Adjourned 34 22 23 24 25 3 1 On Monday, August 16, 2010, at 10:00 a.m., a special 2 meeting of the Kerr County Commissioners Court was held in 3 the Commissioners' Courtroom, Kerr County Courthouse, 4 Kerrville, Texas, and the following proceedings were had in 5 open court: 6 P R O C E E D I N G S 7 JUDGE TINLEY: Good morning, ladies and gentlemen. 8 Let me call to order this special meeting of the Kerr County 9 Commissioners Court posted and scheduled for this date and 10 time, Monday, August 16, 2010, at 10 a.m. It is that time 11 now. We have just a few items on the agenda that we need to 12 attend to this morning, so the first item is to consider, 13 discuss, and authorize Kerr County Sheriff's Office to apply 14 with AACOG for a Homeland Security Grant for radio 15 interoperability equipment and laptop computers to be used in 16 the regional communications trailer in the amount of $10,557. 17 Chief Deputy Barton? 18 MR. BARTON: Judge, you just read exactly what the 19 project is, to finish up the interoperability and purchase 20 some equipment so that we can upgrade the radios in that 21 communications trailer. 22 COMMISSIONER BALDWIN: Move for approval. 23 COMMISSIONER WILLIAMS: Second. 24 JUDGE TINLEY: Motion made and seconded for 25 approval of the agenda item. Question or discussion on the 8-16-10 4 1 motion? All in favor of the motion, signify by raising your 2 right hand. 3 (The motion carried by unanimous vote.) 4 JUDGE TINLEY: All opposed, same sign. 5 (No response.) 6 JUDGE TINLEY: The motion does carry. Thank you, 7 sir. 8 MR. BARTON: Thank you. 9 JUDGE TINLEY: Next item is to consider, discuss, 10 take appropriate action on consideration of an order 11 authorizing the creation of the Section 9 Castle Lake Ranch 12 Subdivision Road District. This was a carry-over from a 13 prior agenda in which there were -- apparently, that was not 14 a stand-alone item that it needed to be in order to start the 15 process by which that road district is created. I'm given to 16 understand that this Court must pass an order authorizing the 17 creation of the Section 9 Castle Lake Ranch Subdivision Road 18 District. 19 COMMISSIONER OEHLER: Move approval. 20 COMMISSIONER WILLIAMS: Second. 21 JUDGE TINLEY: Motion made and seconded for the 22 order as indicated. Question or discussion? All in favor of 23 the motion, signify by raising your right hand. 24 (The motion carried by unanimous vote.) 25 JUDGE TINLEY: All opposed, same sign. 8-16-10 5 1 (No response.) 2 JUDGE TINLEY: That motion does carry. Item 3, to 3 consider, discuss, take appropriate action to dispose of 4 approximately 22 used Sheriff's Office vehicles. Sheriff 5 Hierholzer. 6 SHERIFF HIERHOLZER: It's the same -- 7 JUDGE TINLEY: Do you have a number -- 8 SHERIFF HIERHOLZER: Corrected number was 22. It's 9 the same exact thing. We did have another one, and the 10 dealership did come over and look at it, and the best one 11 that gave us what we want is Ken Stoepel Ford. We'd like to 12 trade those to them for two used ones. 13 COMMISSIONER WILLIAMS: Move approval. 14 COMMISSIONER OEHLER: Second. 15 JUDGE TINLEY: Motion made and seconded to 16 authorize the Sheriff to dispose of approximately 22 used 17 Sheriff's Office vehicles by trading the same. 18 SHERIFF HIERHOLZER: That's correct. 19 JUDGE TINLEY: To Ken Stoepel Ford, correct? 20 SHERIFF HIERHOLZER: That's correct. 21 JUDGE TINLEY: For other vehicles for the 22 department. 23 SHERIFF HIERHOLZER: That's correct. 24 JUDGE TINLEY: Okay. 25 COMMISSIONER BALDWIN: So it's trading instead of 8-16-10 6 1 disposing? 2 JUDGE TINLEY: Well, if they were going to be 3 disposed of, we may have to declare them surplus first. 4 That's the reason I wanted to make sure that -- that the 5 trade was -- 6 COMMISSIONER BALDWIN: Mm-hmm. 7 JUDGE TINLEY: -- part and parcel of that, 8 Commissioner. 9 COMMISSIONER BALDWIN: Good. 10 JUDGE TINLEY: Any other question or comment? All 11 in favor of the motion, signify by raising your right hand. 12 (The motion carried by unanimous vote.) 13 JUDGE TINLEY: All opposed, same sign. 14 (No response.) 15 JUDGE TINLEY: Motion does carry. Next item is to 16 consider, discuss, take appropriate action on Change Proposal 17 Number 14 to contract with Kendnel Kasper Construction on 18 Kerr County Sheriff's Annex/Adult Probation building project. 19 This is on the agenda. The change deals with securing six 20 exit doors, and they're delineated. Those deal with the 21 secure doors in both the Sheriff's Office -- Sheriff's annex 22 portion of the building and the probation portion of the 23 building. Total amount of the change is $1,335.18. 24 COMMISSIONER WILLIAMS: Move approval. 25 COMMISSIONER OEHLER: Second. 8-16-10 7 1 JUDGE TINLEY: Motion made and seconded for 2 approval of the change order as indicated. Question or 3 discussion on the motion? All in favor of the motion, 4 signify by raising your right hand. 5 (The motion carried by unanimous vote.) 6 JUDGE TINLEY: All opposed, same sign. 7 (No response.) 8 JUDGE TINLEY: The motion does carry. Now we'll go 9 to Item 5, to consider, discuss, take appropriate action to 10 reconsider Court Order Number 38141 allocating a portion of 11 the unused space at the new Kerr County Sheriff's Annex as a 12 fitness center for Kerr County employees. Commissioner 13 Oehler? 14 COMMISSIONER OEHLER: Well, I just thought that, 15 since I'd gotten some phone calls on this deal, and it -- you 16 know, I'm not sure we asked enough questions about that 17 before we approved it. And I'm not sure that it's not the 18 right thing to do, but I think the Sheriff maybe ought to 19 have a little more time to try to explain his position on -- 20 on what the need is and make sure the liability is covered, 21 because I don't think we need people, you know, giving 22 instruction out there that could put us in a libelous 23 position. There are other -- other fitness places around 24 town that, you know, if something were to happen to you while 25 you were working out or whatever, I think they'd be liable, 8-16-10 8 1 or -- and I'm just -- you know, I'm not real sure it's a bad 2 thing; I'm not sure it's a good thing, because the -- mainly 3 because of the liability situation that I think we're getting 4 into by having one of those on Kerr County property. So, 5 Sheriff, convince me otherwise. 6 SHERIFF HIERHOLZER: Okay. First off, I'd like to 7 pass these around. There's five of them; one for Jonathan, 8 too. 9 COMMISSIONER WILLIAMS: Thank you. 10 SHERIFF HIERHOLZER: As far as the training of the 11 employees that I have that will be doing the -- the 12 instructing, at least for the Sheriff's Office employees and 13 jail employees, I think you -- you're all aware that two -- 14 that two of my people that will be doing it have both 15 completed Cooper's Institute on physical fitness. They're 16 both certified as law enforcement specialists, as well as 17 myself, and they are also -- both of them are certified as 18 personal fitness trainers, which is the same certification 19 that most of your local fitness centers have their employees 20 do, so they are certified. But when you go through this for 21 law enforcement, I think you'll see it's -- it's a different 22 deal than most employees. What I am concerned about is law 23 enforcement in this. It's not that I want to exclude any of 24 the other county employees from coming out there enjoying the 25 facilities, but I am working more towards law enforcement. 8-16-10 9 1 In that booklet I gave you, if you'll turn to the 2 first deal, which is TAC articles, you'll see where I 3 highlighted some areas, and this covers the need for it all. 4 It states in that second paragraph, in the first page of 5 that -- this article was written in the March and April issue 6 of the Texas Association of Counties magazine this year. It 7 says, "In fact, the review which looked at workers 8 compensation claims filed from August 1st, 2008, through 9 September 30th, 2009, found that physical condition is the 10 most common contributing factor behind law enforcement 11 officer injuries." There's a lot more to these articles, but 12 I think if you can just glance, I did try and highlight some 13 of these. On the next page, you'll see that they -- but they 14 also found one cause of injury that doesn't naturally get 15 better over time, poor physical condition, and it was the 16 underlying cause in just a few injuries, but in 60 percent of 17 the workers compensation claims filed during a 14-month 18 period, officers were getting injured because their partners 19 and fellow jailers were too out of shape to help in an 20 escalating emergency. 21 All these just kind of go on and on, and I won't 22 get into them too much, but one that I think you should pay 23 attention to is on the very next page, on Page 3 of that same 24 article, in which James MacMillan, who is the former sheriff 25 over in Bandera County and now works for AACOG, said he hopes 8-16-10 10 1 the county departments and their officers will voluntarily 2 follow suit and create several programs, or that the state 3 will mandate sheriffs and constables to do it based on the 4 success of their programs. And then it says that it's 5 recommended that the agency conduct a validation study to 6 document the physical fitness level needed in each 7 job-related duty. Now, what we're doing, if you go back to 8 the transportability study, that is a validation study. 9 That's the proposal that I have plugged into the budget for 10 next year, to come in and actually do a validation study for 11 the jail and for the deputies, the Sheriff's Office portion 12 of this. I think we have to have that to also cover our 13 liabilities. 14 The very next tab is what was passed by the State 15 Legislature in 2007. This is out of the Government Code, 16 Chapter 614. Now, the definition of law enforcement agency 17 under this means the Department of Public Safety, Texas 18 Alcohol & Beverage Commission, Texas Department of Criminal 19 Justice, being your prison system, and Parks and Wildlife. 20 And this is what they're saying is coming down the pike, and 21 probably will. But if you look under 614.172, physical 22 fitness programs and standards, "Each law enforcement agency 23 shall adopt physical fitness programs that a law enforcement 24 officer must participate in and physical fitness standards 25 that a law enforcement officer must meet. The standards as 8-16-10 11 1 applied to an officer must directly relate to the officer's 2 job duties, and shall include individual fitness goals 3 specific to the officer's age and gender. A law enforcement 4 agency shall use the services of a consultant to aid the 5 agency developing the standards." That's why the validation 6 study. That is the consultants that do this nationwide. 7 Okay. Normally, a full-blown validation study 8 costs you about $100,000. I don't have that. The second 9 best, if you read through these articles, is what's called a 10 transportability study, and that's where they do come down; 11 they individually assess -- all my officers and employees 12 will have to fill out a deal on what their job duties are and 13 how much physical fitness they need and that they feel. Then 14 this agency takes a validation study that was done for 15 another agency similar to ours and they adapt that to our 16 agency, so it is an individual one that fits our agency. But 17 a lot of the behind-the-scenes stuff is already done by doing 18 it to another one. Other than that, I have an 8-minute video 19 that I would -- clips that I would like for the Court to 20 watch to see why it's important here. 21 Now, these six incidents -- actually, there's five 22 incidents you're going to -- on this video are five, and I 23 have 160 more on tape at the office any time anybody wants to 24 see what happens inside that jail. And these are only -- 25 most of these are just jail incidents; this does not even 8-16-10 12 1 include the officer incidents. I didn't have time, with this 2 being put on the agenda on short notice, to get that done. 3 But to give you an idea, July 3rd, we pulled some stats 4 for -- for some crime prevention talks we have to do. July 5 3rd this year, the deputies responded in one day, one 8-hour 6 period during the day, to six disturbance calls where they're 7 very likely to have to get physical and get involved. But if 8 you don't mind, I'd like the play this right now, Judge. 9 COMMISSIONER BALDWIN: What if we do mind? What 10 would you do? 11 SHERIFF HIERHOLZER: I'm going to ignore you, 12 Buster. 13 COMMISSIONER BALDWIN: Okay. I figured as much. 14 SHERIFF HIERHOLZER: Just a minute. I need to get 15 the very first of it. It should be further back. Thought I 16 had it set at the beginning. 17 JUDGE TINLEY: We may need some help up here, John. 18 SHERIFF HIERHOLZER: No, just -- I may have to just 19 start it totally over. It's starting at the second one 20 instead of the first one. 21 MR. BARTON: Just exit out. 22 COMMISSIONER BALDWIN: If this sheriff thing 23 doesn't work for you, maybe you can get a job with John. 24 SHERIFF HIERHOLZER: John would not have me, I 25 promise you. I don't know what to do, John. I don't want to 8-16-10 13 1 start the whole thing over. 2 COMMISSIONER OEHLER: You said something about 3 popcorn earlier? 4 SHERIFF HIERHOLZER: It should come up in Windows 5 Media. It's a little slow; my computer's a little full. 6 This first incident you're seeing -- you will see is what a 7 whole lot of our inmates do every day. This is a current 8 inmate. He's a Latin King gang. He is in jail for 9 aggravated assault with a deadly weapon, and this is pretty 10 well what he does from sunup to sundown. 11 (Video playing on courtroom monitor.) 12 SHERIFF HIERHOLZER: This doesn't last long, but 13 this is just the first part of his regimen. When he gets up, 14 you'll see what else he does. Mattresses weigh about 50 to 15 60 pounds. Then he goes back and he does jumping jacks. 16 Then he goes back and he does the push-ups again. Then he 17 comes back and he does the -- the weightlifting with the 18 mattress again. I don't show all that. This clip's just 19 about over, and we go to Incident 2. These are distorted, 20 the way it comes. That's Sylvia Foraker, Jail Administrator, 21 walking down the hallway out of her office. They're 22 escorting an inmate around, and there he goes after her, and 23 the fight's with the jailer. 24 Incident 3, this is out of visitation. Pow, that 25 inmate pops the other one during our regular visitation. You 8-16-10 14 1 got one jailer with three there. These things happen 2 instantly. You don't know when they're going to happen. 3 There's no preparing for it. Jailers and people have to be 4 in shape to be able to control these situations. This one is 5 one of the trustees that are feeding. Got another inmate 6 being escorted down the hallway; hits the trustee. Then you 7 got one jailer fighting him. There's another jailer there, 8 but to be honest, that jailer isn't in physical shape to be 9 able to help the first one. All they can do is stand there. 10 COMMISSIONER BALDWIN: I think it's some bad food. 11 SHERIFF HIERHOLZER: This is a normal occurrence, 12 unfortunately. And this one we all know. Listen to the 13 sound. That inmate has already tore a steel chair out of a 14 wall in the cell, broke off the angle iron holding it, and is 15 literally chopping a hole through the wall in that cell. 16 This went on for almost an hour while we had to get a SWAT 17 team and certain people in there, and gas. And you'll see 18 what happens. This is really a continuation. This is the 19 last incident, but I think you need to watch this one. He's 20 talking about a gas gun and a taser. (Video continues.) 21 COMMISSIONER OEHLER: I don't think he's getting 22 it. 23 SHERIFF HIERHOLZER: We all know he's charged with 24 capital murder for killing two people. 25 COMMISSIONER BALDWIN: This dude here? 8-16-10 15 1 SHERIFF HIERHOLZER: Mm-hmm. 2 JUDGE TINLEY: He's up at Vernon right now. 3 SHERIFF HIERHOLZER: He's at Vernon. That's him 4 hissing. 5 COMMISSIONER BALDWIN: Leviathan. Leviathan. 6 SHERIFF HIERHOLZER: You got it. Now, this first 7 thing is me shooting him with the taser. That's 50,000 8 watts, and you watch what he does. Right now we're going to 9 try to tase him. Don't you like my new outfit? It's a gas 10 mask. We've already had to evacuate that whole half of the 11 jail and move all the inmates to other areas. 12 COMMISSIONER BALDWIN: I bet that scared him. 13 SHERIFF HIERHOLZER: He's telling me to shoot him 14 with it. There he's getting tased, and it doesn't even phase 15 him. He tore them out of his leg and thigh where I hit him, 16 and that's what he's doing. It's a 40 millimeter round. 17 This one's O.C., which is pepper spray type gas. He was shot 18 in the stomach with that 40 millimeter round. It doesn't 19 even phase him. The second round is C.S. gas, same thing in 20 the military and that. It's not even phased him. That cell 21 is filling totally full of it. Still doesn't put him down. 22 MR. BOLLIER: He's still standing after all that? 23 SHERIFF HIERHOLZER: Shot him in the back where he 24 couldn't pull it out, and there, he went down. Then we had 25 to go in. I don't know what else I can say. I've got to 8-16-10 16 1 have a physical fitness program for the employees out there. 2 These are just a few incidents, and I've got the disk on my 3 desk of 160 more. This is something we do every day that 4 most of the public doesn't see that the jail has to deal 5 with, and that's just inside our jail. That's nothing to do 6 with all the confrontations and that the deputies have out on 7 the street. I don't think our liability is going to be any 8 higher of putting our employees through a physical fitness 9 program than the liabilities of what they deal with day to 10 day. I don't think they're any higher than the liability of 11 having outside trustees going around picking up trash. Maybe 12 they'll slip and sprain an ankle, okay? You know, or 13 anything else we do. I think this is a desperately needed 14 program. I think it's been needed in Kerr County for a 15 number of years, and we've got an opportunity to do it. The 16 city of Kerrville has a fitness room for their officers. 17 Kerr County has never had one in the 30 years I've been here, 18 and it's time we change and make sure our officers are in 19 good shape. 20 JUDGE TINLEY: Sheriff, I think not directly 21 related to the Sheriff's Office, this -- this fitness area 22 has been indicated as being available to all Kerr County 23 employees, and the question may arise, what -- what about the 24 liability issues dealing with Kerr County employees other 25 than the sheriff's or jail officers that -- that are in your 8-16-10 17 1 jail or sheriff's employ? 2 SHERIFF HIERHOLZER: Well, I was -- as you know, 3 Judge, my primary purpose for this was for law enforcement 4 for the jail and the deputies. That's what I intended for 5 this to be starting out. I was asked by some of y'all on the 6 Court, could it be available to other employees of the 7 county? And yes, it can be. The Sheriff's Office is going 8 to purchase the equipment, maintain the equipment for this 9 facility. I do that out of seizure funds. It's -- I got to 10 primarily go to -- for law enforcement purposes. The only 11 thing that I would recommend, if you'll turn under the last 12 tab in that little book under medical screening, the first 13 several pages that you see in there is what actually goes -- 14 we go through for medical screening for our employees, okay? 15 And then there is -- what it technically read at the top of 16 that Page 7, it has a sample of an informed consent form, and 17 then you got what's called the PAR-Q questionnaire. That 18 goes also into what their health status is, and the biggest 19 thing's going to be educating people that they really need to 20 get a physical from their doctors and an okay to participate. 21 To give you a good example, I had to get it when I 22 wanted to start participating in this thing, for two reasons. 23 I have high cholesterol, and I've had back surgery, and so I 24 had to get a release to be able to do that type of stuff. 25 And it has helped me drastically to do it, okay? We would 8-16-10 18 1 have a sign on that door, is the only thing I can do inside 2 to try and... Now, the courthouse, through even Human 3 Relations or whatever, if they want to set up a different 4 deal, I'll give the employees access to be able to use it. 5 It may be that they want to just use the treadmill. This 6 isn't going to be a weight room. There's not going to be a 7 bunch of free weights in there. That's not what I'm after. 8 I'm after physical fitness for the employees. 9 JUDGE TINLEY: Mr. Henneke, what are the -- what 10 are the liability issues related to use of a facility of this 11 type by other county employees, and what -- what steps can be 12 taken to minimize the County's liability with regard to that 13 use? 14 MR. HENNEKE: My main concern, Judge, as far as 15 liability from the injury, I mean, this facility would be 16 covered under the blanket liability policy that we have, just 17 as the Ag Barn, the courthouse, the rest of the Sheriff's 18 facility, Road and Bridge, you know, any kind of accident 19 that would happen there. I think more of my concern comes 20 into any kind of potential workers comp injuries. If you 21 have employees -- I know that the Sheriff has talked about 22 the trained personal trainers that he has that would be 23 leading the classes. I don't know if that would be done as 24 -- during the course and scope and during the time of their 25 employment, but if we have someone on the -- you know, that's 8-16-10 19 1 working, that's working for Kerr County and is, you know, on 2 the clock while they're working out and they get hurt, then I 3 don't know what that would -- I don't know whether that would 4 lead to -- I'd be concerned that that could be something that 5 we could be potentially liable for. 6 JUDGE TINLEY: What about the use of a -- number 7 one, a policy requiring that the facility only be used at 8 times that they are not on the clock, as it were, not in a 9 duty status? And you can always use a release form. The 10 effectiveness of that may be questionable, but if -- if it 11 were required that the facility only be used when they're not 12 in a duty status, would that resolve the workers comp aspect 13 of it? 14 MR. HENNEKE: You know, to have a better answer 15 with that -- I think that would be a positive step. I'd 16 really like to have a conversation with our carrier. I mean, 17 that's where the determination's going to be coming in, is 18 with TAC, with how they would consider it to be covered and 19 what steps they would -- they would want us to do to mitigate 20 or avoid any kind of risk that -- that could come from it. 21 And I'd be happy to check on that and report back to the 22 Court, because, you know, at the end, that's where it comes 23 in. 24 JUDGE TINLEY: With regard to the medical treatment 25 aspect, you know, if we have an employee that receives some 8-16-10 20 1 sort of injury or -- or condition as a result of utilizing 2 that facility, obviously it'd be covered under our health 3 benefits plan, the same as if they were at a local fitness 4 facility or something of that nature. So, with regard to our 5 health benefits plan, that's six of one, half a dozen of the 6 other, isn't it? 7 MR. HENNEKE: And that's the point. I guess, to be 8 fair, to make that point that you've made, is that we do have 9 a wellness program, and I think the fitness requirements -- 10 you know, this would not be anything that would be required 11 of -- of the Sheriff's employees. They would not have to 12 work out in the Kerr County facility. They have to, as I 13 understand it, meet the physical fitness benchmarks that he 14 would set, however they do it. Some might be in better shape 15 than others. Some might choose to work out at other 16 facilities. I think this is being offered as an option to 17 make it more readily available. But, you know, to have it -- 18 I think, you know, the comparison between the wellness 19 program that we have, where we provide some -- some subsidy 20 for those who do partake in fitness programs and work out, 21 versus having an on-site facility where the County is 22 responsible for two different -- two different scenarios, but 23 certainly, you're right. If somebody, you know, is mowing 24 their yard and gets hurt and goes to the doctor, then we 25 cover them under our health benefits plan. So, it would only 8-16-10 21 1 be within the context of their employment where that could 2 give rise to a workers comp claim that -- that would be 3 differing, and certainly, there's no question if somebody's 4 working out at -- at the sports center and lifts too much or 5 falls down or does something, and that's -- that's not us. 6 SHERIFF HIERHOLZER: This study -- this first TAC 7 article that was reviewed -- done by TAC, okay, the Texas 8 Association of Counties, in this one paragraph I read you, 9 I'll read this part of it. "...60 percent of the workers 10 compensation claims filed during a 14-month period, officers 11 were getting injured because their partners and fellow 12 jailers were too out of shape to give them help." Okay? If 13 you go other to the police chief's article, Cost of the Least 14 Fit, "National accident, injury, and illness data have shown 15 that 20 percent of the average law enforcement agency's 16 workforce is responsible for 80 percent of the cost of the 17 accidents. The small percentage of the least-fit officers is 18 responsible for the majority of the compensable injuries. 19 Various law enforcement agencies calculate the average cost 20 of an in-service heart attack to be between $400,000 and 21 $700,000." 22 Mr. Looney may be able to attest to that, too. And 23 that's what a lot of this is. It's -- it's the -- the stress 24 levels and the physical fitness level from an officer or a 25 jailer, you know, being in the patrol car, just driving 8-16-10 22 1 around, and within a matter of seconds, having to give total, 2 full exertion of everything he's got. Because, as a lot of 3 the sayings go, you know, losing a fight in an encounter is 4 not an option for law enforcement or for that jail. They 5 can't lose one. And so I think what you see, and what I've 6 seen -- and if you read through all these articles, we're -- 7 we have more workers compensation claims because we don't 8 have a fitness program than what we will with a fitness 9 program. I've had two employees, one in the jail and one in 10 the -- the deputy side, that have both expended their full 11 FMLA stuff this year, 12 weeks of it. One we let go, and one 12 I still have employed, 'cause he was able to come back, but 13 his physical fitness isn't there. 14 If you look at the lawsuit, Parker vs. D.C., 15 District of Columbia, you had an officer that was injured -- 16 shoulder injury. Came back on light duty, was let off light 17 duty okay, went back on patrol. Within a few days, got in a 18 fight with a person out on the street. His shoulder was 19 still injured. He could not fight appropriately, and he 20 ended up pulling his gun and shooting and killing the 21 suspect. Suspect's family sued that agency, because they 22 said they were negligent and that they had negligent 23 retention; they had an officer that was not physically fit, 24 which caused the death of their relative. They won that 25 lawsuit, because the officer was not in shape to fulfill the 8-16-10 23 1 duties that he's required to fulfill on a daily basis. 2 JUDGE TINLEY: Mr. Looney, are there any stats that 3 you're aware of that shore up reduced workers comp claims for 4 law enforcement officers where there are good physical 5 fitness requirements in place? 6 MR. LOONEY: We did have some stats with some of 7 the Bexar County Sheriff's officers that did go through some 8 physical training and did make -- they had a physical 9 requirement that they had to pass, and ended up losing a 10 number of their officers because they were not able to pass 11 the physical training. So, the statistics -- it's been a 12 while since I've looked at those, but I might be able to 13 rustle them up. The difference, if I may, on the liability 14 issue, if you've got the public using the facility, then 15 you've got a liability issue, obviously, because you're on 16 county property using your process. If it's a work comp 17 claim -- it's determined to be a workers comp claim, the 18 difference between that and the health care plan is that the 19 work comp claim is a never-ending claim. It exists for as 20 long as the individual has whatever injury or illness -- or 21 whatever injury was incurred at that facility, whereas the 22 health care plan has certain limits within the benefit plan 23 as to the extent of the care over a period of time. 24 So, the liability that's generated by a work comp 25 claim is greater than it would be under the health care plan, 8-16-10 24 1 because as you know, Judge, there's a lot of caveats, a lot 2 of signs that you can put up and everything else, but it 3 still may not... My question from a liability standpoint 4 would be the accessibility of the facility itself as to 5 whether or not, as a county employee, to get on that 6 facility, you had to go through some process to get into the 7 facility itself, which would give indication that as an 8 employee, you had to access it, other than just being an open 9 space. 10 SHERIFF HIERHOLZER: And that is covered with 11 the -- the keyless-type entry where it's either going be a 12 fob or punch pad or the card that they're going to have to 13 have. 14 COMMISSIONER WILLIAMS: Sheriff, do you have a 15 physical fitness policy in place now? 16 SHERIFF HIERHOLZER: No, I've got to wait for the 17 -- I say no. You know, all our policy says is you must be 18 physically fit, all right? That's it. 19 COMMISSIONER WILLIAMS: That could take -- 20 SHERIFF HIERHOLZER: Only policy that the county 21 has had for, you know, 50 years, 100 years in the Sheriff's 22 Office. That's it. 23 COMMISSIONER WILLIAMS: Let met give you a little 24 hypothetical, going back to the liability issue here just a 25 second. Supposing you got one of your jailers or deputies 8-16-10 25 1 who was really in need of this program, and also knows that 2 he has a physical problem, a little heart problem, a little 3 murmur or something, so he doesn't go to his physician to get 4 clearance to do this, okay? 'Cause he knows what the answer 5 is going to be, and he doesn't want that. So, he wants to 6 engage himself in this and ignore the problem, so he works 7 himself into a sweat over there and drops over with a heart 8 attack. Where are we in a situation like that? 9 SHERIFF HIERHOLZER: Number one, they're going to 10 have to already have filled out all the medical screening 11 forms before we let them in, so they're going to falsely fill 12 out those forms, okay? Because we're going to have that. 13 The other thing is -- and what I'm trying to get across, and 14 the main thing is, that could happen right now with an 15 officer stepping out of his car to go up to a shoplifting 16 suspect, or getting in a high-speed pursuit and then having 17 to get out after the adrenaline's going, or during the middle 18 of the pursuit. I could already have that. This is a way of 19 combating that. I want to try and offer and get our -- our 20 officers in the best shape they can be to serve the public, 21 and I think we've got to have that. I think that's where we 22 have a greater liability, is not having something for our 23 officers and trying to insure that they're in good physical 24 shape, than having something. 25 JUDGE TINLEY: Of course, that's all comp. 8-16-10 26 1 SHERIFF HIERHOLZER: Yes. Now, my -- my back 2 injury I had, you now, it's been, I guess, what, 15, 20 3 years. And the back surgery that I had to go through was a 4 workers comp claim on this county. And it's unfortunate, 5 because looking back at it now, I could have been in a lot 6 better physical shape at that time and I wouldn't have gotten 7 injured. And I just -- I don't -- you know, to me, if the 8 County looks at different things and liabilities -- and, 9 true, workers comp is one, but Kerr County owns Ingram Dam. 10 We got kids sliding down that dam every day of the week. 11 Where's our liability? You know, I have outside trustees 12 going, cleaning up stuff all around this county all the time, 13 moving limbs and all that. Do I need to cut that program 14 because of liability? It's under it. I think we have to -- 15 to address it, and I think the best way to address it is 16 solve it by having a long-term physical fitness program. You 17 can see what the Government Code's even saying. That law, 18 614, was passed in 2007 by the Legislature. They're seeing 19 that there's too many officers getting injured unnecessarily. 20 COMMISSIONER OEHLER: I can see where it's very 21 worthwhile. I believe you can justify it for your officers. 22 I'm just not sure on the rest of the county employees yet. I 23 think it's a good thing if we can figure out the safest way 24 to do it and really get, you know, instruction by -- by 25 certified instructors, and I think it's a great thing for 8-16-10 27 1 people to get in shape. You know, we all need to get in a 2 little better shape. 3 COMMISSIONER WILLIAMS: I think I'm coming off the 4 same bias here. I think the Sheriff makes a compelling case 5 to do it for his people, and it probably should be done. And 6 we're planning to put it in close proximity, and serves his 7 people well. I'm not so sure that it's a program that we 8 want to administer for the rest of the employee group. 9 SHERIFF HIERHOLZER: Once you see the equipment we 10 put in it and we get through all that to where people can 11 actually see what it is, then I would invite the Court to 12 come out there, look at it, get other people to come out 13 there and look at it. And if you want it opened up, and you 14 can have the right to consent forms for the general employees 15 of the county, I have no -- you know, I have no problem with 16 that. It's not owned by the Sheriff's office. It's a Kerr 17 County, you know, fitness center, but it's geared towards 18 this, and towards preventing this. And that's what I'd like 19 to have, and then we can open it up to the rest of the 20 employees. 21 COMMISSIONER OEHLER: I think we need to take one 22 step at a time here. 23 JUDGE TINLEY: Yeah, it's going to take a fairly 24 comprehensive, tightly-drawn policy as to non-law enforcement 25 types, I think, and we're going need some guidance on comp 8-16-10 28 1 issues. Going to need some guidance on the control of access 2 to the premises. 3 SHERIFF HIERHOLZER: I think that's -- 4 JUDGE TINLEY: A risk assessment and so forth. 5 COMMISSIONER WILLIAMS: We need the physical 6 fitness policy that you would promulgate for your people, and 7 who's going to be the oversight of that? Who's going to 8 administer that? 9 SHERIFF HIERHOLZER: On that, that's going to all 10 be incorporated into my regular policy and procedures manual, 11 so I have three of them within the department. And it will 12 be instructed by the two certified personal trainers and 13 enforced by them. I have no problem, and I -- I think you're 14 probably right in doing it with the other employees, because, 15 as you know, even by starting the Sheriff's Office and jail 16 employees on it, I'm going through that transportability 17 study. We're going through individual assessments with the 18 officers and what type of physical fitness program we have 19 for our own agency to cover them on liabilities and 20 procedures. 21 JUDGE TINLEY: Anything more on that agenda item, 22 Commissioner? 23 COMMISSIONER OEHLER: No. I'm -- I just thought it 24 important to bring it back up and discuss it a little 25 further. 8-16-10 29 1 JUDGE TINLEY: Okay. Let's move on to -- 2 SHERIFF HIERHOLZER: Thank you. 3 JUDGE TINLEY: -- the next agenda item; consider, 4 discuss, take appropriate action on Kerr County employee 5 hiring freeze. Commissioner Oehler? 6 COMMISSIONER OEHLER: Well, I've gone -- I spent 7 some time last week with the Auditor and with the H.R. in 8 trying to look at all the areas that we could maybe cut some 9 expenses and do some things, because we're in kind of a 10 critical time, in my opinion, economically. And I thought a 11 hiring freeze would be something we could consider, and then 12 if we want to consider that and do it, then -- then also 13 state what the process would be for somebody who lost an 14 employee, and we said there was a hiring freeze and they 15 couldn't replace them. I do believe that there are times, 16 whenever a position would be lost or a person would be lost 17 in an office, where it could be justified if they came back 18 and asked to be reinstated -- reinstated by the Court. But I 19 think it's one of the things we can do, and I think that we 20 can cut some staff this way without letting people go. There 21 will be some of that, I think, in the near future. There may 22 -- we don't know how many it might be in the course of a 23 year, but I think it's one way to cut some of our cost in 24 employees in this upcoming budget year. And it's just a 25 thought. It's an idea that I had that I think will work. 8-16-10 30 1 We're looking for quite a bit of money in order to balance 2 this budget without going up on taxes. That's where I'm 3 coming from. And I just thought this might be a way to help 4 find some money that we're going need throughout this budget 5 year. 6 COMMISSIONER WILLIAMS: If we enact an employee 7 hiring freeze, we need some guidelines as to how -- there may 8 be situations, and how you deal with those situations where 9 you have to add somebody, in deference to the hiring freeze. 10 So, are you suggesting that maybe we have the H.R. department 11 put together some rules -- suggestions on that? 12 COMMISSIONER OEHLER: Well, I would suggest that, 13 or also just -- just say simply that during the hiring 14 freeze, that if any -- any department head or elected 15 official lost an employee, that they could always come to the 16 Court for approval to have that position reinstated. I mean, 17 it's that simple, I think. You know, and we'd be the -- of 18 course, it's our call anyway, really, as to whether we 19 approve or disapprove a position. And I think that will be 20 the simplest option. 21 JUDGE TINLEY: Well, I think generally, without a 22 hiring freeze, if there's -- if they lose someone in a 23 position and it's budgeted within that department budget, 24 they've got a qualified applicant, they're willing to bring a 25 new person on at whatever the established pay grade is, 8-16-10 31 1 beginning step, I think under normal circumstances, they got 2 the option to fill it. 3 COMMISSIONER OEHLER: Mm-hmm. 4 JUDGE TINLEY: Under a hiring freeze, they would 5 not, unless they obtain specific authorization from 6 Commissioners Court. Is that your suggestion? 7 COMMISSIONER OEHLER: That's my suggestion. 8 JUDGE TINLEY: Okay. 9 COMMISSIONER WILLIAMS: Okay. 10 COMMISSIONER OEHLER: And if you like, I'll put it 11 in the form of a motion to do just that. 12 JUDGE TINLEY: Okay. We have a motion. 13 COMMISSIONER WILLIAMS: I'll second it. 14 JUDGE TINLEY: We have a motion and a second. 15 Question or discussion on the motion? 16 COMMISSIONER BALDWIN: What is the motion? 17 COMMISSIONER OEHLER: The motion is to -- to 18 initiate a hiring freeze, and that any positions that are 19 lost to the hiring freeze, they could come to the Court for 20 authorization to be reinstated. 21 COMMISSIONER BALDWIN: Okay. All right. Sounds 22 like you're building in there automatic defeat, to me, but -- 23 COMMISSIONER OEHLER: No, because we always have 24 the option to say no. We have the option to say yes to 25 somebody that would come and -- and ask that very thing. 8-16-10 32 1 COMMISSIONER BALDWIN: I agree. 2 COMMISSIONER OEHLER: Without a hiring freeze, we 3 don't have that ability. 4 COMMISSIONER BALDWIN: No, you sure don't. 5 COMMISSIONER OEHLER: Because if there's a position 6 that's been approved, they can fill it. 7 COMMISSIONER WILLIAMS: We're talking about 8 positions that are budgetarily provided for. 9 COMMISSIONER OEHLER: That's correct. 10 COMMISSIONER WILLIAMS: Not somebody's idea about 11 how to add staff that's not there. 12 COMMISSIONER OEHLER: No. 13 COMMISSIONER WILLIAMS: That's an automatic no. 14 COMMISSIONER OEHLER: That's an automatic no. But 15 it's already approved positions -- 16 COMMISSIONER WILLIAMS: Okay. 17 COMMISSIONER OEHLER: -- that would be under the 18 hiring freeze. 19 JUDGE TINLEY: Any other question or comments? All 20 in favor of the motion, signify by raising your right hand. 21 (The motion carried by unanimous vote.) 22 JUDGE TINLEY: All opposed, same sign. 23 (No response.) 24 JUDGE TINLEY: The motion does carry. Let's go to 25 the last item; to consider, discuss, take appropriate action 8-16-10 33 1 on Change Proposal Numbers 15 and 16 to the contract with 2 Kendnel Kasper Construction on the Sheriff's Annex/Adult 3 Probation building project. These arose out of the bringing 4 in of the fiberoptic, which came to the party kind of late, 5 from Hill Country Telephone. Initial thoughts were that it 6 was going to come in from another source where the existing 7 line was. That line, for various reasons, is not suitable to 8 be used, so the final conclusion reached, just within the 9 last couple weeks or so, was to bring it in through the new 10 building from the street, where Hill Country Telephone has 11 their -- they're bringing their fiberoptic, bring it through 12 the new building through two fire walls -- three fire walls, 13 actually, the outside and two interior, to the -- to the 14 server and in the equipment room there, and then go ahead 15 from there and hook it up. 16 One of them I was a little concerned about, because 17 it's -- the total reaches something over $3,000. I thought 18 that a little excessive, and when I asked the contractor -- 19 asked that the contractor be questioned about it, it's 20 because they are having to pull a bunch of ceiling off -- 21 ceiling grid and so forth, and they're having to penetrate 22 the building from the outside. There's quite a bit of labor 23 cost involved in that, and it's just one of those things when 24 you come in after the fact and do that kind of thing. But 25 I'm told that's really the only feasible way now to get that 8-16-10 34 1 fiberoptic there with the Sheriff's Office operation. Hence, 2 we have those two change orders. 3 COMMISSIONER WILLIAMS: Total of which is, Judge? 4 JUDGE TINLEY: A little over $3,000. One of them's 5 $2,914.14. Second one is $134.64, so it's something over 6 $3,000. 7 COMMISSIONER WILLIAMS: Move approval. 8 COMMISSIONER OEHLER: Second. 9 JUDGE TINLEY: Motion and second for approval. 10 Question or discussion? All in favor of the motion, signify 11 by raising your right hand. 12 (The motion carried by unanimous vote.) 13 JUDGE TINLEY: All opposed, same sign. 14 (No response.) 15 JUDGE TINLEY: The motion does carry. I believe 16 that's it for our Commissioners Court agenda. Any member of 17 the Court have anything further to offer on that meeting? 18 We'll be adjourned. 19 (Commissioners Court adjourned at 10:48 a.m.) 20 - - - - - - - - - - 21 22 23 24 25 8-16-10 35 1 STATE OF TEXAS | 2 COUNTY OF KERR | 3 The above and foregoing is a true and complete 4 transcription of my stenotype notes taken in my capacity as 5 official reporter for the Commissioners Court of Kerr County, 6 Texas, at the time and place heretofore set forth. 7 DATED at Kerrville, Texas, this 17th day of August, 8 2010. 9 10 JANNETT PIEPER, Kerr County Clerk 11 BY: _________________________________ Kathy Banik, Deputy County Clerk 12 Certified Shorthand Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 8-16-10