HomeMy WebLinkAbout04/19/2011, B 1 - CONSIDERATION OF EMPLOYEE INPUT REGARDING POTENTIAL BALLOT MEASURES council. mmA l ll
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CITY O F SAN LUIS O B I S P O
FROM: J. Christine Dietrick, City Atto e
Katie Lichtig, City Manager
SUBJECT: CONSIDERATION OF E P OYEE INPUT REGARDING POTENTIAL
BALLOT MEASURES
RECOMMENDATION
Consider input provided by City employees on potential ballot measures to repeal Charter
Sections 1105 and 1107 and provide staff with direction as to:
1) Whether any changes should be made regarding draft language to be brought back to
Council for consideration for placement on an August 30, 2011 mailed ballot;
2) Whether Council wishes to consider any modifications to the proposed August 30, 2011
election date.
REPORT-IN-BRIEF
On February, 22, 2011 Council directed staff to prepare two potential ballot measures to be
placed before the voters on August 30, 2011. The proposed ballot measures would repeal City
Charter Sections 1105 (Retirement) and 1107 (Binding Arbitration). Consistent with Council
direction to seek input on these proposals from City employees, letters were written to the City's
employee group representatives inviting them to discuss their concerns and provide feedback to
the Council on these matters. The unrepresented group of management and confidential
employees, along with members of the Police Staff Officers' Association, the Battalion Chiefs
Association, and the International Association of Firefighters Local (IAFF) 3523 have met to
discuss the proposed changes to the City Charter and provided input. In addition to meetings,
employee input has been and will continue to be received via direct conversations and e-mail
communications. The City uses a question and answer format with the answers posted on the
employee intranet so that everyone has access to the information, and this report includes many
of the questions asked to date. This report also includes an analysis of alternative ballot measure
language for the Council to consider. An additional meeting and input from the City's general
employees (SLOCEA) is expected to occur before April 19th. Information and results from that
meeting will be provided to the City Council prior to the Council meeting. The City Council is
being asked to consider this input and provide direction to staff if any changes should be made.
DISCUSSION
On February 22, 2011, Council directed staff to prepare language for its consideration for
potential ballot measures to repeal City Charter Sections 1105 (Retirement) and 1107 (Binding
Arbitration) to be placed before the voters on an August 30, 2011, all mailed ballot. Charter
Section 1105 (Retirement) currently reads as follows:
B1-1
Employee Feedback on Proposed Ballot Measures Page 2
SECTION 1105. Retirement.
The City Council shall be authorized to enter into a contract with the Board of
Administration of the Public Employees' Retirement System of California that shall
include all employees of the City of San Luis Obispo. Should the contract at any time be
broadened, the City Council may have the contract amended to provide the improved
coverage.
The Council may terminate the contract or negotiate another contract with reduced
employee coverage with the Board of Administration of the Public Employees'
Retirement System only upon authority approved by a majority vote of the electorate.
Charter section 1107 outlines a dispute resolution process to be followed when labor negotiations
with the Firefighters and Police Officers associations reach impasse following good faith
negotiations. Specifically, Charter Section I I07(D)(1) states in part:
All disputes, controversies and grievances pertaining to wages, hours or terms and conditions of
City employment which remain unresolved after good faith negotiations between the City and
said employee organization shall be submitted to a three member Board of Arbitrators upon the
declaration of an impasse by the City or by said employee organization....
On March 15, 2011, Council adopted an ordinance that will allow the City to call a mailed ballot
election by Council resolution if the Council ultimately decides to do so. Council has not yet
taken action to call an election. Currently, it staff's intention to bring forward ballot language
for Council consideration at Council's May 17, 2011, meeting. June 3, 2011, is the last day by
which Council must adopt a resolution to call an election if it wishes to proceed with an August
30, 2011, mailed ballot election to consider the repeal of the two Charter sections.
In addition to directing staff to prepare ballot language for its consideration, Council also
directed staff to seek input from employee groups regarding concerns and suggestions relating to
the proposed ballot measures. On March 2, 2011, staff sent letters to the presidents of each of
the City's employee organizations and its unrepresented employees (Attachment 1) inviting labor
representatives and other interested employees to meet with the City Attorney and Human
Resources Director to exchange information, provide input, and discuss concerns about the
potential placement of these two ballot measures before the voters. To date, staff has met with
unrepresented management and confidential employees, at a meeting that was attended by
representatives of the Police Management association (SLOPSOA) and the Fire Battalion Chiefs.
Pursuant to agreement to put aside differences regarding formal negotiations obligations, staff
also met and engaged in informal discussion with representatives of IAFF Local 3523 and their
legal counsel. Staff has one additional meeting scheduled to occur between the date this report
will go to print and April 19, 2011 with the General Employees Association (SLOCEA). If staff
receives additional input from that meeting prior to April 19, staff will supplement this report to
convey that information for Council's consideration prior to the meeting date.
Finally, staff also has received a response to its offer to discuss the potential measures from the
Police Officers' Association (POA) (Attachment 2), but has not been able to resolve
disagreements regarding legal negotiations obligations in a manner that has resulted in the
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Employee Feedback on Proposed Ballot Measures Page 3
scheduling of an informational meeting between POA representatives and staff to date. If any
further progress is made in that regard, information will also be provided to Council via a
supplement to this report.
Feedback Regarding Repeal of Charter Section 1105 (Retirement Attachment 3)
During employee meetings, via direct questions from employees, and during the course of budget
briefings, staff has received numerous questions and expressions of concern regarding the
practical effects of and Council's intent regarding the potential repeal of 1105. While there are
specific variations on the concerns expressed to staff, the major themes of questions and
concerns can be summarized as follows. In an effort to make information as broadly publicly
available as possible, the answers to the questions that staff has provided are also summarized
below.
Questions:
Q 1. If Section 1105 is repealed, can the City Council decide to terminate its contract with
Ca1PERS and reduce or eliminate retirement benefits for existing employees?
Al. Council could seek to terminate the City's contract with PERS at any time, whether or
not Section 1105 is repealed. However, it would be extremely impractical, if not completely cost
prohibitive to so, because the City would be required to pay off its current liability to fund the
benefits vested and accrued by existing employees within the next ten years and provide an
"equivalent benefit." The payoff requirement currently amounts to approximately $139 million
the City would have to pay to PERS within ten years of contract termination. Additionally, state
law and PERS rules prevent the City from terminating its PERS benefits unless the City provides
an "equivalent benefit" to its employees. The requirement to provide an "equivalent benefit"
doesn't equate to cost savings. For these reasons, it would not be fiscally feasible for the City to
terminate its contract with PERS. Moreover, even if the decision were made to do so, no action
could be taken by any City Council without fully negotiating any proposed change in benefits
with the City's labor groups.
Q2. If Council isn't seeking to get out of PERS, why does Section 1105 need to be
repealed?
A2. In response to this question, staff has simply related Council's stated desire to keep
ultimate decision making authority about the City's fiscal future in the hands of the City Council
members who have been elected by the City's voters to make those decisions. Additionally, staff
has explained that the current Charter Section creates an additional step of voter approval even in
circumstances where the City Council and the City's employee groups have come to agreement
about how to address retirement costs issues.
Q3. If employee groups and the City agreed to move forward with a two tier pension
system, would voter approval be required under Section 1105 before that could be implemented?
B1-3
Employee Feedback on Proposed Ballot Measures Page 4
A3. Most likely. The language of the Charter provision is awkwardly worded and could be
susceptible to more than one interpretation. Whether a second tier must be placed before the
voters after it is agreed to by the City Council and employees via good faith bargaining is
centered on whether "employee coverage" applies to future employees. This debate arises from
the portion of Section 1105 that indicates that "The Council may terminate the contract or
negotiate another contract with reduced employee coverage with the Board of Administration of the
Public Employees' Retirement System only upon authority approved by a majority vote of the
electorate." The safest interpretation is that a two tier system agreed upon between the City and
its employee groups could not be implemented unless placed on a ballot and approved by a
majority of the City's voters. There is an argument to be made that a two tier system could be
implemented without voter approval because it wouldn't affect current employees. However,
because the second paragraph of the Section 1105 speaks to the requirements for terminating or
amending the City's PERS contract and the implementation of the a two tier system would
require a PERS contract amendment to implement "reduced employee coverage" going forward,
the voter approval requirement would appear to apply even to a fully negotiated two tier
agreement between the City and its employees.
Q4. If Council isn't interested in getting out of PERS, why don't they consider just amending
Section 1105 to give themselves final approval authority over pension benefit reductions, rather
than completely repealing it?
A4. Staff has not answered this question, but has assured the employee groups and individual
employees posing this question that it would be conveyed to Council, as staff is not in a position
to answer this question on behalf of the Council. This question was posed in a variety of different
ways, some of which included suggestions as to how the existing language might be modified to
eliminate the voter approval requirement, as opposed to an outright repeal of the entire provision.
Alternatives that have been suggested by employees are set forth below, in legislative draft
format, for Council's information and consideration. Language proposed to be eliminated is
reflected with a strip and language proposed to be added is reflected by an underline.
Employee Suggestions for Proposed Alternatives to Repeal of Charter Section 1105
Alternative #1: Just eliminate the second paragraph and leave the first alone.
1105 Retirement.
The City Council shall be authorized to enter into a contract with the Board of
Administration of the Public Employees'Retirement System of California that shall
include all employees of the City of San Luis Obispo. Should the contract at any time be
broadened, the City Council may have the contract amended to provide the improved
coverage.
B1-4
Employee Feedback on Proposed Ballot Measures Page 5
Staff analysis: Existing state law and PERS rules set forth the procedures that must be followed
by a PERS agency seeking to enter into a contract with PERS, terminate its contract, or enter into
a new contract or a contract amendment with reduced employee coverage. While the Charter
provision is somewhat awkwardly worded, most of the provision appears simply to restate these
provisions of state law to which the City is already subject as a PERS agency. Thus, the
elimination of the second paragraph of the Charter provision would simply leave the City subject
to otherwise applicable law, without adding the additional voter approval requirement in every
instance. While it is staff's assessment that the first paragraph of the Charter provision, like most
of the second, is also a restatement of existing state law, employees have suggested that leaving
the first paragraph in tact could alleviate concerns that Council's ultimate goal is to eliminate
PERS benefits entirely.
Alternative #2: Modify the second paragraph to remove only the voter approval requirement
and add a clarifying clause.
1105 Retirement.
The City Council shall be authorized to enter into a contract with the Board of
Administration of the Public Employees' Retirement System of California that shall
include all employees of the City of San Luis Obispo. Should the contract at any time be
broadened, the City Council may have the contract amended to provide the improved
coverage.
The Council may terminate the contract or negotiate another contract with reduced
employee coverage with the Board of Administration of the Public Employees'
Retirement System only in accordance with state law. ey
majer-ity.vete of the eleeteFMe.
Staff analysis: This alternative would leave in tact all of those portions of the Charter provision
that appear to be merely a restatement of existing state law (again, although somewhat
awkwardly worded), while eliminating only the language that requires the additional step of voter
approval for any contract termination or negotiated retirement benefit reduction. Leaving in
statements of existing law from both paragraphs is somewhat more consistent than eliminating
one and leaving the other, which would seem to encourage speculation as to the purpose to be
achieved with the deletion of the second paragraph. In other words, leaving the complete
statement of existing law may avoid unintended consequences of creating ambiguity in later
interpretation of the provision. If Council wishes to consider this alternative, staff would also
suggest adding the underlined language for clarity. The added language simply states explicitly
what is implicit as it relates to PERS retirement benefits, i.e. that the City is bound by applicable
provisions of the Public Employees Retirement Law (PERL) and can terminate its contract with
PERS or reduce employee benefits only as permitted by applicable state retirement law,
collective bargaining law, and PERS rules.
B1-5
Employee Feedback on Proposed Ballot Measures Page 6
Alternative 43: Eliminate all reference to improvements or reductions to benefits; leaving only
the.statement of authority to contract with PERS.
1105 Retirement.
The City Council shall be authorized to enter into a contract with the Board of
Administration of the Public Employees' Retirement System of California that shall
include all employees of the City of San Luis Obispo.
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Staff analysis: This alternative could address stated employee concerns regarding the complete
elimination of PERS benefits, while eliminating the additional step of voter approval for
negotiated retirement benefit reductions that would require a PERS contract amendment.
Eliminating the additional language as reflected would, as in the alternatives above, leave the
City subject to otherwise applicable state law as it relates to PERS contract termination or
benefits reduction. This change would also eliminate references to either increases or decreases
to the contract with PERS, creating unity of purpose in this section (only authorize participation
in PERS).
Alternative #4: Eliminate the portion of the second paragraph that requires voter approval for
reduced benefits but leave the section that requires voter approval of terminating the City's
contract with PERS.
1105 Retirement.
The City Council shall be authorized to enter into a contract with the Board of
Administration of the Public Employees'Retirement System of California that shall
include all employees of the City of San Luis Obispo. Should the contract at any time be
broadened, the City Council may have the contract amended to provide the improved
coverage.
The Council may terminate the contract
-ple.yee ee• -eF•with the Board ofAdministration of the Public Employees'Retirement
System only upon authority approved by a majority vote of the electorate.
Staff analysis: Similar to Alternative #3, this alternative could address stated employee
concerns regarding the complete elimination of PERS benefits by providing an additional level of
process by requiring voter approval for terminating the city's contract with PERS. However any
reduction in benefits would be within the authority of the City Council to approve.
B1-6
Employee Feedback on Proposed Ballot Measures Page 7
Alternative 95: Amend Section]105 to require voter approval of benefits reductions requiring a
PERS contract amendment only where agreement cannot be reached between the City and its
employee groups.
The City Council shall be authorized to enter into a contract with the Board of
Administration of the Public Employees'Retirement System of California that shall
include all employees of the City of San Luis Obispo. Should the contract at any time be
broadened, the City Council may have the contract amended to provide the improved
coverage.
The Council may terminate the contract or negotiate another contract with reduced
employee coverage with the Board ofAdministration of the Public Employees'Retirement
System, except that voter approval shall be required for the City to implement a reduction
in retirement benefits negotiated and agreed upon between the City and its employee
associations.
Staff analysis: This alternative leaves the basic structure of the Charter provision in tact, but
creates an exception to the voter approval requirements for retirement benefit reductions that are
the product of good faith negotiations and agreements reached between the City and its employee
groups. Voter approval would remain a prerequisite to PERS contract termination.
Alternative #6[StaffAlternative]: Repeal and replace Section 1105 to achieve greater
consistency and clarity regarding compliance with state law, while eliminating the voter
approval requirement.
1105 Retirement. [Repeal]
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A.].. inis4at:e.. of the Publ:e L'mpleyees' pet:..efne«t System of C 1:F«,:e tha4 shall
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1105 Retirement. [Replace]
The Citv Council shall be authorized to enter into a contract with the Board of
Administration of the Public Employees' Retirement System of California that shall
include all employees of the City of San Luis Obispo. The City Council may terminate
amend or neeotiate another contract to provide improved or reduced employee benefits
only in accordance with state law and as permitted by the Board of Administration of the
Public Employees' Retirement System.
B1-7
Employee Feedback on Proposed Ballot Measures Page 8
Staff analysis: This alternative attempts to achieve the Council goal of eliminating the
additional voter approval requirement and placing decision-making authority with the elected
Council, while incorporating employee feedback, and refining some of the inconsistent and/or
unclear language that exists in the current Charter provision.
As previously discussed, staff has not.been able to locate any legislative history on this provision.
Additionally, without looking into the evolution of PERS law, it is unclear to staff whether
Charter authority was required at some point to enter into a PERS contract. Thus, the staff
alternative retains the statement of authority to enter into the City's PERS contract in order to
avoid any unintended consequences of the elimination of that provision. The revised language
also incorporates the remaining language regarding authority to terminate the contract, or
increase or reduce benefits, into a single statement using consistent language. Staff believes that
the language above represents a more coherent statement of existing law and the procedure by
which retirement benefits may be enhanced or reduced by a PERS agency.
Feedback Regarding Section 1107 (Attachment 4)
As previously noted, staff met informally on April 11, 2011 with IAFF Local 3523 members and
their legal counsel. The Firefighters Association requested that Council consider an alternative
to outright repeal of the binding arbitration provision. As currently written, Section 1107 does
not permit a compromise, but requires the arbitration panel to choose between the final proposals
of each party on an issue by issue basis in crafting an award. The possible modification
suggested by Local 3523 would include a provision that would permit a three person arbitration
panel to craft a "middle ground" compromise between the final proposals of each party on
unresolved issues submitted by Local 3523 and the City. No specific language was proposed and
Local 3523 acknowledged potential challenges of this approach presented because the current
provision applies both to Local 3523 members and to the Police Officers' Association (POA).
They reiterated their willingness to have further discussion regarding a compromise.
To date, the POA has not agreed to have any substantive discussions with the City on this topic
and no discussions have been scheduled with this group. Rather, discussion has been limited to
correspondence between legal counsel for the POA and the City Attorney regarding disputed
legal requirements surrounding the City's obligation to enter into formal negotiations with the
POA prior to Council taking action to place either ballot measure before the voters. If any
discussions are scheduled after the print deadline for this report a supplement will be issued to
convey any input received.
Additional Feedback Regarding Both Measures
The most prevalent general question from employees relative to both ballot measures is why the
measures need to be brought forward at a special election in August. Employees have expressed
concerns both about the costs of an August special election and potentially adverse
organizational impacts on morale and labor relations. Employees are concerned that Council is
willing to authorize a special election that may cost $81,660 at a time when they are also
expecting employees to reduce operating budget and staffing costs. Staff has explained that there
are efficiencies to be gained by bringing the two measures forward concurrently and by
81-8
i
Employee Feedback on Proposed Ballot Measures Page 9
conducting a special election by mailed ballot, and that it was the Council's judgment that the
measures should be brought forward in the same timeframe the City is evaluating its overall
budget and structural changes necessary to sustain the organization into the future. Employees
expressed concerns that at a time when cooperation is needed to negotiate new labor agreements
involving concessions by employees it appears that the Council is being aggressive in their
treatment of employees. Staff received input that the Council should consider delaying any
measures until a regularly scheduled election. If Council wishes to do so, Council should
provide alternate direction to staff. Absent contrary direction, staff will bring forward resolutions
for Council's consideration crafted to call an August mailed ballot election and place measures
on that ballot repealing Charter Sections 1105 and 1107.
CONCURRENCES
The Human Resources Director has reviewed this report and concurs that it reflects the employee
input received to date.
FISCAL IMPACT
There is no fiscal impact, beyond the staff resources devoted to discussions with employees,
associated with any of the alternatives presented here. There is no difference in election costs
between a measure to repeal Charter Section 1105 and a measure to amend or replace the
provision. The cost for the County Registrar of Voters office to conduct a special all mailed
ballot election on August 30, 2011, or any other date established by the Council, would be
approximately $81,660. Should the Governor call a special election to be held in September or
November 2011, the cost for the City to consolidate with the County would be approximately
$67,000. If the City consolidates with the County for the June 2012 Primary Election, the cost
would be approximately $92,000. Consolidated elections with the County would not be an all
mailed ballot election unless the State specifically calls for an all mailed ballot election.
ALTERNATIVES
Direct staff to analyze alternatives to Charter provision repeal other than those discussed in this
report and to return to Council for consideration.
ATTACHMENTS
1. Sample Letter sent to representatives of employee groups on March 2, 2011
2. POA response letter, dated March 21, 2011
3. Charter Section 1105
4. Charter Section 1107
\\chstore4\Team\Attomey\Human Resources\2011 Meet&Discuss\CAR.Employeelnput.InclFire.2011.4.19.doc
B1-9
�J ACHMENTag11 of l
Prows, Claudia
From: Sutter; Nickole
Sent: Thursday, March 03, 2011 3:09 PM
To: Bradley, Mary; Codron, Michael; Dietrick, Christine; Hines, Charlie; Irons, Monica; Lichtig, Katie;
Linden, Deborah; Malicoat, Debbie; Mandeville, John; Mattingly, Carrie; Stanwyck; Shelly; Walter,
Jay; Bates, Shannon; Beights, Todd; Bishop, Katherine;Bochum, Tim; Bohlken, Sheridan;
Bremer, James; Bunte, Todd; Cano, Elaina; Carscaden, Doug; Chacon, Ken; Clark, Claire;
Collins, Andrew; Cox, Julie; Davidson, Doug; Dietrick, Christine; Dunsmore, Phil; Elke, Brigitte;
Ellsworth, Melissa; Evans, Noah; Fairchild, Anne; Floyd, Aaron; Fraser, Bridget; Furukawa, Dean;
Girvin, Tim; Guardado, Miguel; Hamilton, Bob; Hannula, Hal; Havlik, Neil; Henderson, Gary;
Hendricks, Rachael; Hix, Dave; Holstine, Ron; Horch, Robert; Horn, Matt; Horton, Wade; Hudson,
Jake;Keavney, Gary; Lynch, Barbara; Macon, John; Maggio, Rodger; Malicoat, Debbie;
Mandeville, Peggy; McAndrew, Sallie; Messner, Rachel; Metz, Jennifer; Mudgett, Melissa;
Munds, Ron; Murry, Kim; Nance, Bud; Ogden, Rich; Pellemeier, Keith; Perrin, Robin; Ricci, Pam;
Schmidt, Steve; Thompson, Jennifer;Tregenza, Ardith; VanBeveren, Dan; Visveshwara, Andrea;
Wallace, Christine; Webster, John; Yuri, David; Zocher, Greg; Prows, Claudia; Richardson, April;
Hamilton, Kathy
Subject: Ballot Measure Meeting 3/10/2011
Attachments: Ballot Measure Letter.pdf
Below is a message from Monica. Following this email I will be sending out a
meeting request.
Please join Katie, Christine, and I along with your fellow management and confidential
employees to discuss the direction provided by Council recently regarding the potential repeal of
binding arbitration and the removal of Section 1105 of the City Charter that pertains to
retirement. We know these actions have caused much concern and confusion among our
employees. Therefore, we want to take the opportunity to meet and discuss those concerns. We
will plan on a short presentation to bring everyone up to speed, but will plan for an interactive
meeting, as your input is most important. I have attached a generic version of a letter that was
provided to all association presidents this week. It should provide you some further context for
the meeting. Please feel free to contact me if you have questions.
Thanks,
Nickole Sutter
Wellness Coordinator &
HR Administrative Assistant
City of San Luis Obispo
nsutternaslocitL.org
Phone: 805.781.7250
Fax: 805-542-9867
4/11/2011 B1-10
7ACHMENT Z
March 3, 2011
Dear
As I know you are aware, the City Council provided direction to staff at last Tuesday's (February
22, 2011) City Council meeting to prepare ballot measure language for their consideration
regarding the possible repeal of City Charter Section 1105. I know that this action has generated
questions among many employees and we would like to extend the invitation to meet and discuss
the action and answer your questions. We also want to understand concerns your members may
have regarding this direction and ask you provide us with information or alternatives that you
feel the Council should consider before taking final action to place a ballot measure before the
voters.
I want to provide you with the City's perspective on the effect of the potential measure and, in
that context, our perspective on our legal "meet and confer" obligations. I ask that you consider
our perspective and let us know if there are areas where we may disagree as to the scope or
nature of the effect of the proposed measure and/or of our obligations under the Meyers-Milias-
Brown Act.
In general, we do not believe that there would be any effects or potentially adverse impacts to
any employee or group that could result from the placement of a measure to repeal Section 1105
before the voters. The City believes that the first paragraph of the section is merely a re-
statement of existing state law("The City Council shall be authorized to enter into a contract
with the Board of Administration of the Public Employees'Retirement System of California that
shall include all employees of the City of San Luis Obispo. Should the contract at any time be
broadened, the City Council may have the contract amended to provide the improved
coverage. ") Under the California Public Employees'Retirement Law ("PERL'), a local agency
does have the authority to enter into a contract with CaIPERS. The process for entering into such
contracts and for broadening the coverage under those contracts is established by that Law. In
other words, existing state law establishes the process to extend the improved coverage that is
reflected in the retirement formulas applicable to all current City employees. So, eliminating the
Charter provision would not change the City's authority to continue or improve benefits for
current employees.
It is the second paragraph of the Charter provision ("The Council may terminate the contract or
negotiate another contract with reduced employee coverage with the Board ofAdministration of
the Public Employees'Retirement System only upon authority approved by a majority vote of the
electorate") that may differ from the PERL. The PERL requires an employer to negotiate with
its employees prior to terminating its contract with CaIPERS or amending its contract in a
manner that would reduce employee coverage. The City's Charter adds the additional
requirement that, even if the City and its employees have negotiated such an issue and agreed to
request a contract amendment from Ca1PERS,that proposed agreement would need to be
approved by the voters, instead of the City Council, as would typically be the case..
B1-11
ATTACHMENT -1
March 3, 2011
Page 2
So, in short, we do not believe the repeal of Charter Section 1105 would change any existing
employees' retirement benefit and it would leave the City subject to all rules and procedures
under the PERL for changes that could affect existing, as well as future,employees. The
proposed repeal would simply allow the City Council to be the final approval authority for
subsequent changes, unless additional approval is required under the PERL. The repeal of the
provision would not affect any wages, hours, working conditions or other terms or conditions of
employment and the continued existence of the provision does not confer any benefit upon any
employee or group. Thus, it is the City's position that the placement of this measure on the
ballot does not fall within the scope of bargaining and is not subject to legal meet and confer
requirements.
Nonetheless, in the spirit of open communication we would like to meet with you to get your
input and understand your concerns.
After considering this information, I ask that you let me know by March 8,2011 whether you
and/or any other representatives would like to meet to discuss this issue. Although there are time
constraints associated with the need to call a potential August 30, 2011 election in a timely
manner, we are confident this will allow ample opportunity to discuss these issues before any
final action is taken.
Very truly yours,
Monica Irons
Human Resources Director
B1-12
i:Berry Wilkinson Law Group To:Christine Deitrick(1 805781 71 09) 14:55 03/21/11 GMT-05 Pg 02-03
l
Berry Wilkinson Law Group ATTACHMENT 9
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March 21, 2011
J. Christine Deitrick,City Attorney
City of San Luis Obispo
990 Palm Street
San Luis Obispo,CA 93401
Re: City Council Proposed Ballot Measures
Dear Ms. Deitrick:
As a follow-up to my email of March 7,2011, I write in response to your letter dated
March 1, 2011 regarding the City Council Proposed Ballot Measures. As T understand it, the City
Council voted to direct staff to prepare ballot measure language for its consideration,and prepare
an ordinance that would permit an election entirely by mail. I thank you for forwarding the
correspondence to/from the City and the Firefighters Association, and for the opportunity to
weigh in on the issues.
Before I get into a discussion about the legal obligations imposed by the Council's action,
on behalf of the San Luis Obispo Police Officers Association I wish to convey our sincere desire
to have productive dialogue so that we can provide input during the process of developing ballot
measure language. Open conununication and collaboration are critically important to the labor
relations process, and the Association believes that the parties should come together to share
perspectives on the issues as well as discuss alternatives to the action proposed. At your earliest
convenience, please contact either me or Matt Blackstone so we can establish dates to begin that
dialogue.
From your correspondence with the.Firefighters, it appears that the City has taken the
position that it has no legal obligation to complete the meet and confer process prior to
submitting language for placement on the ballot. I respectfully disagree. As you know,
retirement benefits are a mandatory subject of bargaining (see,Service Emplgyees International
Union Local 790 v. County of San Joaquin (2003) PERB Decision No. 148-M citing Temple City
Unified School District (1989) PERB Decision No. 782, and Jefferson School Disirict (L980)
PERB Decision No. 133). Consequently, the City is obligated to meet and confer through
completion of the impasse procedures before unilaterally presenting a charter amendment in its
final form for submission to the voters.
4040 Civic Center Drive,Suite<00 • San Rafael,CA 94903 • ph:A,15.2 9.6638 • i::: 866.578.1333 • hetr,ailkinson.com
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i:Berry Wilkinson taw Group To:Christine Deitrick(18057817109) 14:55 0312111.1 GMT-05 Pg 03-03
I
J. tine Deitrick, City Attorney ATAC���N� �—
March arch 21, 2011
Re: City Council Proposed Ballot Measures
Page 2 of 2
The decision in People ex rel, Seal Beach Police Officers Association V. City of Seal
Beach (1984) 36 Cal.3d 591, is directly on point. There, the.court held that a city is required to
meet and confer prior to proposing charter amendments that impact the terms and conditions of
employment. In reaching that decision,the court found that the obligation to meet and confer did
not interfere with the agency's right to propose a charter amendment. Rather, the meet and
confer obligation was considered a procedural prerequisite that balanced the labor organization's
rights under the Meyers-Milias-Drown Act with the city cotuicil's right to present charter
amendments.
The decision in Santa Clara County Correctional Peace Officers'Association V. County
ofsanta Clara, PERB Decision 2114-M(June 8, 2010) is also directly on point. There the labor
association alleged that the county violated the Meyers-Milias-Brown Act by placing two charter
amendments on the November 2004 ballot without fulfilling its duty to meet and confer in good
faith. The Public Employment Relations Board (PERB) agreed, and held: "[T]he County
breached its duty to meet and confer in good faith when it failed to bargain the Prevailing Wage
Measure to agreement or impasse prior to placing it on the ballot...." (1d. at p. 14.) PERB
further stated: "The mere fact that the county thought inclusion of the measure on the November
2004 ballot was desirable does not constitute a compelling operational necessity sufficient to set
aside its bargaining obligation."
As you know, the City is required to maintain the status quo on mandatory subjects of
bargaining until the parties reach agreement or impasse. San Joaquin County Employees Ass.
Inc. i. City of Stockton (1984) 161 Cal. App.3d 813, 818-819. It.appeared from your
correspondence that the City's position was that it could place the matter on the ballot before
even beginning its talks with the.Association. However, a critical component of the duty to meet
and confer is to provide written notice of a proposed change to the Association prior to beginning
to bargain. Thus, when the proposed language is drafted, it should be promptly provided to the
Association so that it can initiate the meet and confer process.
The Association is ready, willing, and able to begin the required meet and confer process
promptly, but is gravely concerned that because the City has set an overly ambitious timeline for
inclusion of charter amendment on the ballot, and therefore has not left adequate time to meet
and confer through impasse prior to the deadline for ballot submittals.
Very truly yours,
Berry I Wilkinson I Law Group
oil/
Alison Berry Wilkinson
cc: Matt Blackstone, President
San Luis Obispo Police Officers Association
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Charter - Page 1 oft
ATTAC
HMt,i T 3
i
Section 1105. Retirement.
The City Council shall be authorized to enter into a contract with the Board of
Administration of the Public Employees' Retirement System of California that shall
include all employees of the City of San Luis Obispo. Should the contract at any time
be broadened, the City Council may have the contract amended to provide the
improved coverage.
i
The Council may terminate the contract or negotiate another contract with reduced
employee coverage with the Board of Administration of the Public Employees'
Retirement System only upon authority approved by a majority vote of the electorate.
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Charter Page 1 of 3
ATTACHMENT �f
i
Section 1107. Impartial and Binding Arbitration for San Luis Obispo Police
Officers Association and San Luis Obispo Firefighters Association, IAFF Local
3523, Employee Disputes.
(A) Declaration of Policy. It is hereby declared to be the policy of the City of San Luis
Obispo that strikes by firefighters and police officers are not in the public interest and
should be prohibited, and that a method should be adopted for peacefully and
equitably resolving disputes that might otherwise lead to such strikes.
(B) Prohibition Against Strikes. No City of San Luis Obispo firefighter or police officers
shall willfully engage in a strike against the City. Any such employee against whom the
City brings charges of failing to report for work as part of a strike shall be subject to
dismissal from his or her employment in the event the charges are sustained upon
conclusion of the proceedings that are required by law for the imposition of disciplinary
action upon said employee.
(C) Obligation to Negotiate in Good Faith. The City, through its duly authorized
representatives, shall negotiate in good faith with the San Luis Obispo Police Officers
Association and/or the San Luis Obispo Firefighters Association, IAFF Local 3523, as
the exclusive representatives of representation units comprised solely of employees of
the police department and/or the fire department, as such units are currently
constituted.or as they may be amended through negotiation or arbitration as provided
in this section, on all matters relating to the wages, hours, and other terms and
conditions of City employment. Unless and until agreement is reached through
negotiations between authorized representatives of the City and said employee
organization or organizations or a determination is made through the impartial
arbitration procedure hereinafter provided, no existing benefit, term or condition of
employment for employees represented by the San Luis Obispo Police Officers
Association and/or the San Luis Obispo Firefighters Association, IAFF Local 3523,
shall be altered, eliminated or changed.
I
(D) Impasse Resolution Procedures.
(1)All disputes, controversies and grievances pertaining to wages, hours or terms
and conditions of City employment which remain unresolved after good faith
negotiations between the City and said employee organization shall be submitted
to a three-member Board of Arbitrators upon the declaration of an impasse by the
City or by said employee organization. Upon declaration of impasse by either
party, the City and employee organization shall each exchange a written last offer
of settlement on each of the issues remaining-in dispute. Written last offer of
settlement shall be exchanged between parties within two days of the declaration
of impasse.
(2) Representatives designated by the City and representatives of the employee
organization shall each select and appoint one arbitrator to the Board of
Arbitrators within three (3) business days after either party has notified the other,
in writing, of the declaration of impasse and the desire to proceed to arbitration.
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Charter ATTAUT
The third member of the Board of Arbitrators shall be selected by agreement
between the City's and the employee's organization representative within ten (10)
business days of the declaration of impasse. This third member shall serve as the
neutral arbitrator and Chairperson of the Board. In the event that the City and the
employee organization cannot agree upon the selection of the neutral arbitrator
within ten (10) business days from the date that either party has notified the other
that it has declared an impasse, either party may then request the State
Mediation and Conciliation Service of the State of California Department of
Industrial Relations to provide a list of seven (7) persons who are qualified and
experienced as labor arbitrators. If the arbitrators selected by the City and the
employee organization cannot agree within three (3) days after receipt of such list
on one of the seven (7) to act as the third arbitrator, they shall have five (5)
business days to alternately strike names, with the City's arbitrator striking first,
from the list of nominees until one name remains and that person shall then
become the neutral arbitrator and Chairperson of the Board of Arbitrators.
(3) Any arbitration proceeding convened pursuant to this Article shall be
conducted in conformance with, subject to, and governed by Title 9 of Part 3 of
the California Code of Civil Procedure. The Board of Arbitrators shall hold public
hearings, receive evidence from the parties and cause a transcript of the
proceedings to be prepared. The Board of Arbitrators may adopt by unanimous
consent such other procedures that are designed to encourage an agreement
between the parties, expedite the arbitration hearing process, or reduce the costs
of the arbitration process.
(4) In the event no agreement is reached prior to the conclusion of the arbitration
hearings, the Board of Arbitrators shall direct each of the parties to submit, within
such time limit as the Board of Arbitrators may establish, but not to exceed thirty
(30) business days, a last offer of settlement on each of the remaining issues in
f dispute. The Board of Arbitrators shall decide each issue by majority vote by
j selecting whichever last offer of settlement on that issue it finds most nearly
conforms to those factors traditionally taken into consideration in the
determination of wages, hours, benefits and terms and conditions of public and
private employment, including, but not limited to the following: changes in the
average consumer price index for goods and services using the San Francisco-
Oakland-San Jose index, as reported at the time impasse is declared for the
preceding twelve (12) months, the wages, hours, benefits and terms and
conditions of employment of employees performing similar services in
comparable cities; and the financial condition of the City of San Luis Obispo and
its ability to meet the costs of the decision of the Board of Arbitrators.
(5) After reaching a decision, the Board of Arbitrators shall mail or otherwise
deliver a true copy of its decision to the parties. The decision of the Board of
Arbitrators shall not be publicly disclosed and shall not be binding until ten (10)
days after it delivered to the parties. During that ten (10) day period the parties
shall meet privately, attempt to resolve their differences, and by mutual
agreement amend or modify the decision of the Board of Arbitrators. At the
conclusion of the ten (10) day period, which may be extended by mutual
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CharterOf WENT
YageP3 of 3
agreement between the parties, the decision of Board of Arbitrators, as it may be
modified or amended by the parties, shall be publicly disclosed and shall be
binding on the parties. The City and the employee organization shall take
whatever action is necessary to carry out and effectuate the arbitration award. No
other actions by the City Council or by the electorate to conform or approve the
decision of the Board of Arbitrators shall be permitted or required.
(6) The expenses of any arbitration proceeding convened pursuant to this Article,
including the fee for the services of the chairperson of the Board of Arbitrators
i
and the costs of preparation of the transcript of the proceedings shall be borne
equally by the parties. The expenses of the arbitration, which the parties may
incur individually, are to be borne by the party incurring such expenses. Such
expenses include, but are not limited to, the expense of calling a party's
witnesses, the costs incurred in gathering data and compiling reports, and any
expenses incurred by the party's arbitrator. The parties may mutually agree to
divide the costs in another manner.
(7) The proceedings described herein shall supersede the dispute resolution
process for the San Luis Obispo Police Officers Association and the San Luis
Obispo Firefighters Association which is set forth in Sections 13.2 and 14.1 of
City of San Luis Obispo Resolution No. 6620, to the extent that such language is
in conflict with this amendment. Furthermore, the proceedings described herein
shall supersede any language within the Employer-Employee Resolution, the
Personnel Rules and Regulations, any Memorandum of Agreement with the
employee associations or any written policy or procedure relating to wages, hours
or other terms and conditions of City employment, to the extent that such
language is in conflict with this amendment. However, nothing in this section shall
preclude the parties from mutually agreeing to use dispute resolution processes
other than the binding arbitration process herein set forth. Nor, does it preclude
the parties from negotiating, and submitting to the arbitration process set forth
herein, a grievance process, which includes a form of binding arbitration that
differs from the one, set forth herein.
I
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