Earlier this month, Elkhart Mayor Rod Roberson signed an executive order giving two additional paid days off to city employees who get a COVID-19 vaccine by August 15, or who have already been vaccinated. Now, members of the city’s common council are questioning whether that incentive is legal.
At the council’s most recent meeting on Monday, Councilman David Henke said the mayor’s incentive would amount to over 10,000 hours in “lost time and services” – a cost that would be borne by the city’s taxpayers.
“If we feel as though we can cover that 10,400 hours without overtime, the suggestion is – how do we have that much extra labor, that we can take out 10,400 hours and not have a service failure?” Henke said. “I don’t see the possibility of that.”
He said overtime associated with the additional days off would be essentially “untrackable,” creating contract issues with the city’s four unions.
Additionally, he said an executive order can’t legally incur a cost, meaning the incentive needs to pass through the common council instead.
“There was a right way to do this, and that was to bring it to council, let the council vote, and then if it has a cost, it has a cost – it’s legal,” Henke said.
Councilman Kevin Bullard agreed, saying it would be difficult to make an incentive that’s “consistent and fair to all the employees.”
But corporation counsel John Espar said there are situations where an executive order can have an associated cost, as long as it “stays within a certain budgetary framework.”
“The mayor is not creating a new benefit for the employees of the city of Elkhart,” Espar said. “The mayor is creating a mechanism through which he can create a more safe, healthy workspace for his staff and employees, as well as the members of the public that come within the buildings and structures of the city.”
Roberson said he’s confident there are no legal issues with the incentive. He said he could have brought it to the council as an ordinance, but he chose to use an executive order to get city staff vaccinated as quickly as possible.
“It’s important that we get those rates up, and it’s important that we get those rates up as quickly as possible,” Roberson said. “The variants are coming. Matter of fact, they are here.”
Henke said he understands the need for expediency, and called Monday night one of the "rare times" he's disagreed with the mayor. But, he said he still thinks the incentive should be put to a council vote to avoid future legal questions.
“I find that you went really close and, in my opinion, over that line and we didn’t have to go there,” Henke said. “We’ll put more time in tracking than the cost of providing the service. That makes no sense at all.”
Contact Gemma atgdicarlo@wvpe.orgor follow her on Twitter at@gemma_dicarlo.
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