HomeMy WebLinkAboutS05-City Attorney CITY OF SAN BERI~lRDINO -REQUEST CSR COUNCIL ACTION
From: James F. Penman, City Attorney Subject: Resolution Amending Resolution 6413,
Sections 12 and 14.
Dept: City Attorney
Date: _ December 14 , 1994
Synopsis of Previous Council action:
November 7, 1994: Mayor and Council approved implementation of
salary survey for Management and Confidential employees to be
effective January 1, 1995.
Recommended motion: Adopt Resolution
i
Signature.
Diane C. Roth Ext. 5162
Contact person: Phone:
Supporting data attached: Ward:
FUNDING REQUIREMENTS: Amount:
Source: (Acct No 1
(Acct. Description)
Finance:
Council Notes:
75-02fi2 Agenda Item No
CITY OF SAN BERI~QRDINO -REQUEST C.bR COUNCIL ACTION
STAFF REPORT
On November 7, 1994, the Mayor and Council is closed session
approved the implementation of the salary survey for Management and
Confidential employees as indicated on the attached Minutes of
Closed Session, and directed that Resolution No. 6413 be amended to
reflect that action.
The City Administrator presented to the City Attorney a resolution
which contained provisions which were not reflected in the Council
Minutes, as well as provisions which this office believes are not
legal.
Therefore, the City Attorney's Office presents this alternative
resolution which conforms to the legal prior action of the Mayor
and Council, implementing the salary range adjustments.
75.0264
,``
C
CLOSED SESSION ACTION 1C
Council Member Negrete made a motion, seconded by Council
Member Pope-Ludlam, that the comparisons to the County of San
Bernardino classification titles contained within the salary survey
for management and confidential employees dated July 7, 1994, be
- deleted; that the survey be implemented based on Option Two, as set
forth on page 18: "nearest dollar, minimum placement, step two";
that implementation shall be effective January 1, 1995; and that
all subsequent step increases for management and confidential
employees be based on a merit evaluation and not given before
January 1996, nor shall any exceed five (5~) percent.
The motion carried by the following vote: Ayes: Council
Members Negrete, Curlin, Hernandez, Pope-Ludlam, Miller. Nays:
Council Member Oberhelman. Absent: Council Member Devlin.
END OF CLOSED SESSION
2 11/7/94
. ~ .~i
1 RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AMENDING RESOLUTION
N0. 6413, SECTIONS TWELVE AND FOURTEEN (CONFIDENTIAL AND
3 MANAGEMENT EMPLOYEES), TO CONFORM TO PRIOR COUNCIL ACTION.
- 4 WHEREAS, on November 7, 1994, the Mayor and Council voted to
b place all management and confidential positions into the salary
g ranges recommended by the salary survey prepared by Personnel
7 Concepts, Inc.; and,
g WHEREAS, they voted further to place all management and
9 confidential employees into the salary step in the above-
10 referenced range which is closest to, but not less than, their
11 current salary, and not lower than Step 2;
12 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
13 OF SAN BERNARDINO AS FOLLOWS:
14 SECTION 1. Resolution 6413, Section Twelve, Confidential
15 Employees, is hereby amended as follows:
16 SECTION TWELVE: Confidential Employees:
17
Mary Rangg and Stevs Slassification Title
18
19 (3321) 2201 2311 2427 2548 2675 Secretary (LT) (Council, City
Administrator)
20
(3323) 2223 2334 2451 2573 2702 Legal Secretary I (U)
21
~ (3334) 2348 2466 2589 2719 2854 Computer Operator
23 (3341) 2432 2553 2681 2815 2956 Senior Secretary (i)1
(Administrative Office,
24 Council, Finance,
Mayor, Personnel,
25 Planning & Building
Services)
26
27 (3343) 2456 2579 2708 2843 2986 Legal Secretary II (LI)
28 (3346) 2493 2618 2749 2886 3030 Deputy City Clerk I (IT)
1
' `"~
1 RESOLUTION AMENDING RESOLUTION NO. 6413, SECTIONS TWELVE AND
FOURTEEN (CONFIDENTIAL AND MANAGEMENT EMPLOYEES)
2
(3348) 2518 2644 2776 2915 3061 Account Clerk III (Payroll)
- 3 Personnel Assistant
4 (3363) 2714 2849 2992 3142 3299 Paralegal I (iJ)
5 (3369) 2796 2936 3083 3237 3399 Executive Secretary (1J)
6
(3370) 2810 2951 3098 3253 3416 Administrative Operations
7 Supervisor M (City Attorney,
City Treasurer)
8 Programmer
9 (3376) 2896 3040 3192 3352 3520 Deputy City Clerk II (L>)
10
11 (3421) 3624 3805 3996 4195 4405 Senior Accountant
12 (3422} 3642 3824 4016 4216 4427 Personnel Analyst
13 (3428) 3753 3941 4138 4344 4562 Programmer Analyst
14 (3434) 3867 4060 4263 4476 4700 City Attorney Investigator (U)
15 (3484) 4962 5210 5471 5744 6031 Deputy City Attorney I (U)
16 (3494) 5216 5477 5750 6038 6340 Deputy City Attorney II (LT)
17
(3504) 5483 5757 6045 6347 6664 Deputy City Attorney III (U)
18
19 (3514) 5763 6051 6354 6671 7005 Deputy City Attorney IV (TJ)
20 (3524) 6058 6361 6679 7013 7363 Senior Deputy City Attorney (iJ)
21
22
23
24
25 _
26
27
28
z
~ -
1 RESOLUTION AMENDING RESOLUTION NO. 6413, SECTIONS TWELVE AND
FOURTEEN (CONFIDENTIAL AND MANAGEMENT EMPLOYEES)
2
3 SECTION 2. Resolution 6413, Section Fourteen, Management
4 Employees, is hereby amended as follows:
5
6 SECTION FOURTEEN: Management Employees
7 Shy RanEe and Steos Classification Title
8 (FLAT) 1000 City Treasurer (U)
9 (4380) 2954 3102 3257 3420 3591 Cultural Affairs Coordinator (U)
10 Administrative Analyst
11 (4400) 3264 3427 3598 3778 3967 Administrative Operations
12 Supervisor II
13 3414 3584 3763 3952 4149 Division Chief - SBETA (U)
_ Assistant Director/Division
14 Chief (JTPA)(U)
15 (4410) 3431 3602 3782 3971 4170 Project Coordinator (in
16 Administrative Assistant to the
City Administrator (U)
17
(4417) 3553 3730 3917 4113 4318 Cemetery Superintendent (IJ)
18
19 (4418) 3570 3749 3936 4133 4340 Supervising Librarian
20 (4420) 3606 3786 3976 4175 4383 Business Registration
Supervisor (U)
2l
(4422) 3642 3824 4016 4216 4427 Affirmative Action Officer (U)
22
~ (4440) 3984 4184 4393 4612 4843 Assistant to the Mayor (U)
Disaster Preparedness
24 Coordinator (U)
25 (4441) 4004 4204 4415 4635 4867 Plan Check Engineer
26 (4444) 4065 4268 4481 4705 4941 Purchasing Manager (U)
27
28 (4448) 4147 4354 4572 4800 5040 Assistant City Librarian (in
3
1 RESOLUTION AMENDING RESOLUTION NO. 6413, SECTIONS TWELVE AND
FOURTEEN (CONFIDENTIAL AND MANAGEMENT EMPLOYEES)
2
3 (4459) 4380 4599 4829 5071 5324 Fleet Manager (U)
4 (4460) 4402 4622 4854 5096 5351 Cable Television Manager (U)
5 Director of Animal Control (U)
Executive Assistant to the
g Council (U)
Executive Assistant to the
7 Mayor (U)
8 (4466) 4536 4763 SOOT 5251 5514 Principal Planner
9
(4467) 4559 4787 5026 5277 5541 Superintendent of Parks (U)
10 Superintendent of
Recreation (1J)
11 Director of Risk Management
12
13 (4472) 4674 4907 5153 5411 5681 Facilities Manager (U)
Superintendent of
14 Sanitation (U)
15 (4473) 4697 4932 5179 5438 5704 Assistant to the City
16 Administrator (U)
17 (4479) 4840 5082 5336 5603 5883 Senior Civil Engineer
18 (4488) 5058 5311 5577 5856 6149 City Clerk (U)
19 (4489) 5087 5342 5609 5889 6184 Executive Director (Federal
20 Programs) (U)
Traffic Engineer (tJ)
21
22 (4494) 5216 5477 5750 6038 6340 Civil Service Board Chief
Examiner (ln
23 Assistant Director of
Public Services (U)
24
25 (4509) 5621 5902 6197 6507 6832 Director of Management
Information Services (U)
26
27
28
4
C ~
1 RESOLUTION AMENDING RESOLUTION NO. 6413, SECTIONS TWELVE AND
FOURTEEN (CONFIDENTIAL AND MANAGEMENT EMPLOYEES)
2
3 (4511)_ 5677 5961 6259 6572 6901 Assistant Director of
_ Planning and Building
4 Services (i))
5 (4517) 5850 6142 6449 6772 7111 Assistant City Engineer
6
(4523) 6028 6329 6645 6978 7327 City Librarian (U)
7
8 (4524) 6058 6361 6679 7013 7363 Director of Personnel (U)
Director of Pazks,
9 Recreation & Community
Services (U)
10 Director of Public Services (U)
11 (4532) 6300 6615 6946 7293 7658 City Attorney (iT)
12 (4541) 6594 6923 7270 7633 8015 Director of Planning &
13 Building Services ([n
14 (4543) 6660 6993 7342 7710 8095 Director of Finance ([J)
15 (4544) 6693 7028 7379 7748 8136 Assistant City Attorney (LJ)
16
(4556) 7106 7461 7834 8226 8637 Director of Public Works/City
17 Engineer (iJ)
18 (4558) 7173 7532 7909 8304 8719 City Administrator (iJ)
19 (4560) 7249 7612 7992 8392 8811 Assistant City Administrator
20 ~
21 (4564) 7395 7765 8153 8561 8989 Senior Assistant City Attorney
~
23
24
25
26
27
28
5
1 RESOLUTION AMENDING RESOLUTION NO. 6413, SECTIONS TWELVE AND
FOURTEEN (CONFIDENTIAL AND MANAGEMENT EMPLOYEES)
2
$ SECTION 3. The amendments to Resolution 6413 contained
4 herein shall be effective on January 1, 1995.
5 I HEREBY CERTIFY that the foregoing resolution was duly
g adopted by the Mayor and Common Council of the City of
7 San Bernardino at a meeting thereof, held on the
$ day of 1994, by the following vote, to wit:
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 NEGRETE
11 CURLIN
12 HERNANDEZ
13 OBERHELMAN
14 DEVLIN
15 POPE-LUDLAM
16 MILLER
17
1$ City Clerk
19 The foregoing resolution is hereby approved this day
of 1994.
20
21
Tom Minor, Mayor
22 City of San Bernardino
23 Approved as to
form and legal content:
24
JAMES F. PENMAN,
25 City Attorney
26 ~
$y: ~ w
27
28 1
6
r
C I T Y O F S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM
TO: J~4MES F. PENMAN, City Attorney
FROM: DIANE CATRAN ROTH, Deputy City Attorney
DATE: December 14, 1994
RE: Resolution Implementing Management and Confidential
Salary Adjustments
Attached is a copy of the proposed resolution "implementing" the
management and confidential employees' salary adjustments, and a
copy of the minutes of the closed session action. The way it is
being implemented, the salary ranges for each position recommended
by the survey are being adopted, but the individuals occupying the
positions are being downgraded to the lowest step (above Step 1)
which does not result in a decrease in salary. The proposed
resolution amends the salary resolution (NO. 6413), not only to
amend the salary ranges, but also to amend the rules by which
salaries are advanced from step to step for management and
confidential employees. There are several legal problems with this
resolution, as well as many inequities.
1. The resolution does not accurately reflect the Council's
action as reported in the minutes of the closed session. (Our
office was excluded from closed session when this was discussed so
we do not know whether all of these issues were addressed or voted
upon, but the minutes certainly do not reflect that all of these
actions were taken.)
2. The City has a system of five 5$ salary steps. This
resolution allows for salary increases of from 18 to 58, depending
upon the employee's evaluation. (Several managers have told me
that Shauna told them that employees would have to "walk on water"
to receive a full step advancement.) This completely disposes of
the step system for management and confidential employees. This
was not part of the original proposal that was presented to SBCMA,
and it does not appear in the minutes of Council action.
3. This changes everyone's anniversary date to January 1.
That means that people who are not now at the top step of their
range whose anniversary dates are in February or March, for
example, will now have to wait almost an extra year for the raise
they were scheduled for. Rather than receiving the 5~ they expect
in February, they m~ get 18 eleven months later. These people
would effectively get no raises. (The City Administrator is
proposing that the people with anniversary dates in January get
their step increase in January, 1995, and then be placed in their
new step on this new schedule. Peggy Ducey has told me that there
S-5 ,
izly~9~
James F. Penman, City Attorney
Re: Resolution Implementing Management and Confidential
Salarp Adjustments
December 14, 1944
Page 2
are three people in that situation.) This was not part of the
proposal presented to the members of SBCMA.
4. It prohibits any other merit increases prior to January,
1996. (This is stated in the minutes of Council action.) There
are many employees effectively getting no raises. (There are
several employees who have been topped out for years getting $2 to
$5 per month increases. Although they may have been topped out for
some time and are now being moved to a lower step which will allow
for advancement, their department heads will not be permitted to
give them any merit increases for a year.)
The SBCMA members did not have the figures when this
proposal was presented, and did not realize how inequitable it was.
(This is partly because when the Council voted on this, they
removed the County from the survey as a comparable agency, which
completely changed the results.) Unfortunately -- and purely by
chance -- many of the employees who are getting the smallest raises
are the lower paid employees, such as secretaries, clerks, and
personnel analysts. I wonder if the Council would have approved
this scheme had they been fully aware of how inequitably it would
affect employees. For example:
Position ~ Below ~ Increase $ Increase
Market eff. 1/95 eff. 1/95
Exec.Asst. to Council 9.9$ 4.28 $ 205
Exec. Sec'y to Council 5.18 0,18 3
Director of Finance 11.08 5.7$ 380
Sr. Accountant 4.1$ 0.18 5
Director of Personnel 8.88 2.68 181
Personnel Analyst 4.18 0.18 4
Sup t. of Sanitation 12.1 1.7$ 87
Assistant to Mayor 12.8 1.8$ 76
5. Several legal issues are raised by the resolution's
requirement that salary step advances for all employees be
contingent upon written evaluations:
a. The Council does not have jurisdiction to require
other elected officials to do written evaluations of their staff.
b. The Council does not have jurisdiction to require the
elected officials to submit their evaluations of their staff to the
Mayor for review. (This resolution even requires the Council
itself to submit their staff's evaluations for review by the Mayor.
See, p.2, lines 10-11.)
James F. Penman, City Attorney
Re: Resolution Implementing Managemeat and Confidential
Salary Adjustments
December 14, 1994
Page 3
c. The Council cannot require the Chief Examiner to be
evaluated by the City Administrator, or make his step increases
contingent upon City Administrator approval, as he is employed by
the Civil Service Board.
d. Under the Charter department heads function under the
general supervision of the Mayor. The requirement that department
heads be evaluated by the City Administrator is an illegal
delegation of the Mayor's authority by the Council.
e. Doing written evaluations may destroy the at-will
status of those employees who currently serve at-will. (At the
least, it is inadvisable to do written evaluations, of at-will
employees because they can only work to the City's detriment in the
event of a termination.)
6. This resolution requires recommendations for salary
increases to be submitted by the City Administrator for all
department heads except elected officials. This also presents some
legal problems:
a. Making salary increases for the Civil Service Chief
Examiner contingent upon recommendation of the City Administrator
is contrary to the Charter.
b. This Resolution would continue the practice of
department heads recommending step advancements for their
employees, except for elected officials, and those must be
recommended by the Mayor. However, making step increases for the
City Clerk's staff, for example, contingent upon the Mayor's
recommendation conflicts with the Charter.
c. Making salary increases for department heads
contingent upon the recommendation of the City Administrator is an
unlawful delegation of the Mayor's general supervisory authority
under the Charter.
7. Subsection (f) may violate the California Family and
Medical Care Act [Government Code § 12945.2(g)) in cases where the
leave of absence was for reasons covered by the Act. (On its face
the Act appears to prohibit extending the time for salary
advancement if leave is taken pursuant to that section.)
8. we have not explored whether SBCMA is an employee
organization under the Meyers-Milias-Brown Act, but I believe that
the City's past dealings with SBCMA may make it so de facto. If it
is covered, very little of those rule changes were bargained for,
~o
~/ '~''
James F. Penman, City Attorney
Re: Resolution Implementing Management and Confidential
Salary Adjustments
December 14, 1994
Page 4
or even told to the employees prior to the Council's action, and
they would all be within the scope of representation.
Our office has again been put in a very difficult situation with
this resolution. Legal advice is often not sought when the ideas
are being proposed, and we do not see them until the Council is
about to vote upon them. In this case a resolution was sent to us
for signature to memorialize an action the Council has already
allegedly taken. We were not consulted about these proposals. In
fact, we were specifically excluded from the formulation of this
plan and the closed session where it was discussed, allegedly
because we have a conflict of interest. (However, all confidential
employees have the same conflict of interest -- that is the
definition of a "confidential employee" and the reason we are
forbidden by law from negotiating on behalf of other bargaining
units. We have no more conflict of interest than Peggy Ducey,
Barbara Dillon or Barbara Pachon, who helped to formulate and also
benefit by this resolution.)
If our office were consulted from the beginning we could work
together to find legal means of achieving the desired results. As
it stands, there is now on the agenda a resolution with legal
problems that could substantially adversely affect the City.
IANE CATRAN ROTH
Deputy City Attorney
G O
C I T Y O F S A N B E R~C~~RDD~~~l~ ~IS~F~`
INTEROFFICE MEMORA~UPQ,EC 1S P2.47
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: December 15, 1994
RE: Resolution Implementing Management
and Confidential Salary Adjustments
COPY TO: Rachel Clark, City Clerk; David C. Kennedy,
City Treasurer; SBCMA members
We have submitted a resolution that will be on the agenda for
Monday, December 19, 1994, authorizing the implementation of the
salary survey exactly as Administration prepared it but without the
extra rules about merit increases, etc. The resolution submitted
by this office will permit the raises to be given as planned while
allowing the legal problems to be resolved.
The problems-we have identified are serious legal concerns and
must be resolved before the proposed additional rules are approved.
Please review the attached memorandum from Diane Roth
detailing the problems.
Respectfully submitted,
ES F. PENMAN
City Attorney
Attachment
JFP/js [Sa18rq.Mem]
S-~
C ~
C I T Y O F S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM
TO: JAMES F. PENMAN, City Attorney
FROM: DIANE CATRAN ROTH, Deputy City Attorney
DATE: December 14, 1994
RE: Resolution Implementing Management and Confidential
Salary Adjustments
Attached is a copy of the proposed resolution "implementing" the
management and confidential employees' salary adjustments, and a
copy of the minutes of the closed session action. The way it is
being implemented, the salary ranges for each position recommended
by the survey are being adopted, but the individuals occupying the
positions are being downgraded to the lowest step (above Step 1)
which does not result in a decrease in salary. The proposed
resolution amends the salary resolution (No. 6413), not only to
amend the salary ranges, but also to amend the rules by which
salaries are advanced from step to step for management and
confidential employees. There are several legal problems with this
resolution, as well as many inequities.
1. The resolution does not accurately reflect the Council's
action as reported in the minutes of the closed session. (Our
office was excluded from closed session when this was discussed so
we do not know whether all of these issues were addressed or voted
upon, but the minutes certainly do not reflect that all of these
actions were taken.)
2. The City has a system of five 58 salary steps. This
resolution allows for salary increases of from 1$ to 58, depending
upon the employee's evaluation. (Several managers have told me
that Shauna told them that employees would have to "walk on water"
to receive a full step advancement.) This completely disposes of
the step system for management and confidential employees. This
was not part of the original proposal that was presented to SBCMA,
and it does not appear in the minutes of Council action.
3. This changes everyone's anniversary date to January 1.
That means that people who are not now at the top step of their
range whose anniversary dates are in February or March, for
example, will now have to wait almost an extra year for the raise
they were scheduled for. Rather than receiving the 5$ they expect
in February, they may get 1$ eleven months later. These people
would effectively get no raises. (The City Administrator is
proposing that the people with anniversary dates in January get
their step increase in January, 1995, and then be placed in their
new step on this new schedule. Peggy Ducey has told me that there
James F. Penman, City Attorney
Re: Resolution Implementing Management and Confidential
Salary Adjustments
December 14, 1994
Page 2
are three people in that situation.) This was not part of the
proposal presented to the members of SBCMA.
4. It prohibits any other merit increases prior to January,
1996. (This is stated in the minutes of Council action.) There
are many employees effectively getting no raises. (There are
several employees who have been topped out for years getting $2 to
$5 per month increases. Although they may have been topped out for
some time and are now being moved to a lower step which will allow
for advancement, their department heads will not be permitted to
give them any merit increases for a year.)
The SBCMA members did not have the figures when this
proposal was presented, and did not realize how inequitable it was.
(This is partly because when the Council voted on this, they
removed the County from the survey as a comparable agency, which
completely changed the results.) Unfortunately -- and purely by
chance -- many of the employees who are getting the smallest raises
are the lower paid employees, such as secretaries, clerks, and
personnel analysts. I wonder if the Council would have approved
this scheme had they been fully aware of how inequitably it would
affect employees. For example:
Position $ Below $ Increase $ Increase
Market eff. 1/95 eff. 1/95
Exec.Asst. to Council 9.98 4.2$ $ 205
Exec. Sec'y to Council 5.1~ 0.1$ 3
Director of Finance 11.0$ 5.78 380
Sr. Accountant 4.1~ 0.18 5
Director of Personnel 8.8$ 2.6$ 181
Personnel Analyst 4.1$ 0.18 4
Supt. of Sanitation 12.1 1.78 87
Assistant to Mayor 12.8$ 1.8$ 76
5. Several legal issues are raised by the resolution's
requirement that salary step advances for all employees be
contingent upon written evaluations:
a. The Council does not have jurisdiction to require
other elected officials to do written evaluations of their staff.
b. The Council does not have jurisdiction to require the
elected officials to submit their evaluations of their staff to the
Mayor for review. (This resolution even requires the Council
itself to submit their staff's evaluations for review by the Mayor.
See, p.2, lines 10-11.)
v
James F. Penman, City Attorney
Re: Resolution implementing Management and Confidential
Salary Adjustments
December 14, 1994
Page 3
c. The Council cannot require the Chief Examiner to be
_ evaluated by the City Administrator, or make his step increases
contingent upon City Administrator approval, as he is employed by
the Civil Service Board.
d. Under the Charter department heads function under the
general supervision of the Mayor. The requirement that department
heads be evaluated by the City Administrator is an illegal
delegation of the Mayor's authority by the Council.
e. Doing written evaluations may destroy the at-will
status of those employees who currently serve at-will. (At the
least, it is inadvisable to do written evaluations of at-will
employees because they can only work to the City's detriment in the
event of a termination.)
6. This resolution requires recommendations for salary
increases to be submitted by the City Administrator for all
department heads except elected officials. This also presents some
legal problems:
a. Making salary increases for the Civil Service Chief
Examiner contingent upon recommendation of the City Administrator
is contrary to the Charter.
b. This Resolution would continue the practice of
department heads recommending step advancements for their
employees, except for elected officials, and those must be
recommended by the Mayor. However, making step increases for the
City Clerk's staff, for example, contingent upon the Mayor's
recommendation conflicts with the Charter.
c. Making salary increases for department heads
contingent upon the recommendation of the City Administrator is an
unlawful delegation of the Mayor's general supervisory authority
under the Charter.
7. Subsection (f) may violate the California Family and
Medical Care Act [Government Code ~ 12945.2(g)] in cases where the
leave of absence was for reasons covered by the Act. (on its face
the Act appears to prohibit extending the time for salary
advancement if leave is taken pursuant to that section.)
8. We have not explored whether SBCMA is an employee
organization under the Meyers-Milias-Brown Act, but I believe that
the City's past dealings with SBCMA may make it so de facto. if it
is covered, very little of those rule changes were bargained for,
James F. Penman, City Attorney
Re: Resolution Implementing Management and Confidential
Salary Adjustments
December 14, 1994
Page 4
or even told to the employees prior to the Council's action, and
they would all be within the scope of representation.
Our office has again been put in a very difficult situation with
this resolution. Legal advice is often not sought when the ideas
are being proposed, and we do not see them until the Council is
about to vote upon them. In this case a resolution was sent to us
for signature to memorialize an action the Council has already
allegedly taken. We were not consulted about these proposals. In
fact, we were specifically excluded from the formulation of this
plan and the closed session where it was discussed, allegedly
because we have a conflict of interest. (However, all confidential
employees have the same conflict of interest -- that is the
definition of a "confidential employee" and the reason we are
forbidden by law from negotiating on behalf of other bargaining
units. We have no more conflict of interest than Peggy Ducey,
Barbara Dillon or Barbara Pachon, who helped to formulate and also
benefit by this resolution.)
If our office were consulted from the beginning we could work
together to find legal means of achieving the desired results. As
it stands, there is now on the agenda a resolution with legal
problems that could substantially adversely affect the City.
IANE CATRAN ROTH
Deputy City Attorney
F
C I T Y O F S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: December 15, 1994
RE: Resolution implementing Management
and Confidential Salary Adjustments
COPY TO: Rachel Clark, City Clerk; David C. Kennedy,
City Treasurer; SBCMA members
We have submitted a resolution that will be on the agenda for
Monday, December 19, 1994, authorizing the implementation of the
salary survey exactly as Administration prepared it but without the
extra rules about merit increases, etc. The resolution submitted
by this office will permit the raises to be given as planned while
allowing the legal problems to be resolved.
The problems we have identified are serious legal concerns and
must be resolved before the proposed additional rules are approved.
Please review the attached memorandum from Diane Roth
detailing the problems.
Respectfully submitted,
I ~
ES F. PENMAN
City Attorney
Attachment
,TFP/js [Salary•Mem1
7- S-5
j
C I T Y O F S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM
TO: JAMES F. PENMAN, City Attorney
FROM: DIANE CATRAN ROTH, Deputy City Attorney
DATE: December 14, 1994
RE: Resolution implementing Management and Confidential
Salary Adjustments
Attached is a copy of the proposed resolution "implementing" the
management and confidential employees' salary adjustments, and a
copy of the minutes of the closed session action. The way it is
being implemented, the salary ranges for each position recommended
by the survey are being adopted, but the individuals occupying the
positions are being downgraded to the lowest step (above Step 1)
which does not result in a decrease in salary. The proposed
resolution amends the salary resolution (NO. 6413), not only to
amend the salary ranges, but also to amend the rules by which
salaries are advanced from step to step for management and
confidential employees. There are several legal problems with this
resolution, as well as many inequities.
1. The resolution does not accurately reflect the Council's
action as reported in the minutes of the closed session. (Our
office was excluded from closed session when this was discussed so
we do not know whether all of these issues were addressed or voted
upon, but the minutes certainly do not reflect that all of these
actions were taken.)
2. The City has a system of five 58 salary steps. This
resolution allows for salary increases of from 18 to 58, depending
upon the employee's evaluation. (Several managers have told me
that Shauna told them that employees would have to "walk on water°
to receive a full step advancement.) This completely disposes of
the step system for management and confidential employees. This
was not part of the original proposal that was presented to SBCMA,
and it does not appear in the minutes of Council action.
3. This changes everyone's anniversary date to January 1.
That means that people who are not now at the top step of their
range whose anniversary dates are in February or March, for
example, will now have to wait almost an extra year for the raise
they were scheduled for. Rather than receiving the 5$ they expect
in February, they m~ get 1~ eleven months later. These people
would effectively get no raises. (The City Administrator is
proposing that the people with anniversary dates in January get
their step increase in January, 1995, and then be placed in their
new step on this new schedule. Peggy Ducey has told me that there
James F. Penman, City Attorney
Re: Resolution Implementing Management and Confidential
Salary Adjustments
December 14, 1994
Page 2
are three people in that situation.) This was not part of the
proposal presented to the members of SBCMA.
4. It prohibits any other merit increases prior to January,
1996. (This is stated in the minutes of Council action.) There
are many employees effectively getting no raises. (There are
several employees who have been topped out for years getting $2 to
$5 per month increases. Although they may have been topped out for
some time and are now being moved to a lower step which will allow
for advancement, their department heads will not be permitted to
give them any merit increases for a year.)
The SBCMA members did not have the figures when this
proposal was presented, and did not realize how inequitable it was.
(This is partly because when the Council voted on this, they
removed the County from the survey as a comparable agency, which
completely changed the results.) Unfortunately -- and purely by
chance -- many of the emgloyees who are getting the smallest raises
are the lower paid employees, such as secretaries, clerks, and
personnel analysts. I wonder if the Council would have approved
this scheme had they been fully aware of how inequitably it would
affect employees. For example:
Position 8 Below 8 Increase $ Increase
Market eff. 1/95 eff. 1/95
Exec.Asst. to Council 9.98 4.28 $ 205
Exec. Sec'y to Council 5.18 0.18 3
Director of Finance 11.08 5.78 380 •
Sr. Accountant 4.18 0.18 5
Director of Personnel 8.88 2.68 181
Personnel Analyst 4.18 0.18 4
Supt. of Sanitation 12.18 1.78 87
Assistant to Mayor 12.88 1.88 76
5. Several legal issues are raised by the resolution's
requirement that salary step advances for all employees be
contingent upon written evaluations:
a. The Council does not have jurisdiction to require
other elected officials to do written evaluations of their staff.
b. The Council does not have jurisdiction to require the
elected officials to submit their evaluations of their staff to the
Mayor for review. (This resolution even requires the Council
itself to submit their staff's evaluations for review by the Mayor.
See, p.2, lines 10-11.)
' -,~ ^,~
L,.
James F. Penman, City Attorney
Re: Resolution Implementing Management and Confidential
Salary Adjustments
December 14, 1994
Page 3
c. The Council cannot require the Chief Examiner to be
evaluated by the City Administrator, or make his step increases
contingent upon City Administrator approval, as he is employed by
the Civil Service Board.
d. Under the Charter department heads function under the
general supervision of the Mayor. The requirement that department
heads be evaluated by the City Administrator is an illegal
delegation of the Mayor's authority by the Council.
e. Doing written evaluations may destroy the at-will
status of those employees who currently serve at-will. (At the
least, it is inadvisable to do written evaluations of at-will
employees because they can only work to the City's detriment in the
event of a termination.)
6. This resolution requires recommendations for salary
increases to be submitted by the City Administrator for all
department heads except elected officials. This also presents some
legal problems:
a. Making salary increases for the Civil Service Chief
Examiner contingent upon recommendation of the City Administrator
is contrary to the Charter.
b. This Resolution would continue the practice of
department heads recommending step advancements for their
employees, except for elected officials, and those must be
recommended by the Mayor. However, making step increases for the
City Clerk's staff, for example, contingent upon the Mayor's
recommendation conflicts with the Charter.
c. Making salary increases for department heads
contingent upon the recommendation of the City Administrator is an
unlawful delegation of the Mayor's general supervisory authority
under the Charter.
7. Subsection (f) may violate the California Family and
Medical Care Act [Government Code S 12945.2(g)] in cases where the
leave of absence was for reasons covered by the Act. (On its face
the Act appears to prohibit extending the time for salary
advancement if leave is taken pursuant to that section.)
8. We have not explored whether SBCMA is an employee
organization under the Meyers-Milias-Brown Act, but I believe that
the City's past dealings with SBCMA may make it so de facto. If it
is covered, very little of those rule changes were bargained for,
James F. Penma~ City Attorney
Re: Resolution Implementing Management sad Confidential
Salary Adjustments
December 14, 1994
Page 4
or even told to the employees prior to the Council's action, and
they would all be within the scope of representation.
Our office has again been put in a very difficult situation with
this resolution. Legal advice is often not sought when the ideas
are being proposed, and we do not see them until the Council is
about to vote upon them. In this case a resolution was sent to us
for signature to memorialize an action the Council has already
allegedly taken. We were not consulted about these proposals. in
fact, we were specifically excluded from the formulation of this
plan and the closed session where it was discussed, allegedly
because we have a conflict of interest. (however, all confidential
employees have the same conflict of interest -- that is the
definition of a "confidential employee" and the reason we are
forbidden by law from negotiating on behalf of other bargaining
units. we have no more conflict of interest than Peggy Ducey,
Barbara Dillon or Barbara Pachon, who helped to formulate and also
benefit by this resolution.)
If our office were consulted from the beginning we could work
together to find legal means of achieving the desired results. As
it stands, there is now on the agenda a resolution with legal
problems that could substantially adversely affect the City.
IANE CATRAN ROT
Deputy City Attorney