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HomeMy WebLinkAbout02.A- City Attorney's Office 2.A RESOLUTION(ID#3429) DOC ID: 3429 CITY OF SAN BERNARDINO —REQUEST FOR COUNCIL ACTION In Support/Opposition From: Jolena E. Grider M/CC Meeting Date: 08/07/2014 Prepared by: Jolena E. Grider, (909) 384- 5355 Dept: City Attorney Ward(s): All Subject: Resolution of the Mayor and'Common Council of the City of San Bernardino Proposing an Amendment to the Charter of Said City Relating to Safety Personnel Salaries and Civil Service Discharge or Reduction of Compensation; And Resolution of the Mayor and Common Council of the City of San Bernardino Calling a Special Municipal Election on a Proposed Charter Amendment Relating to Safety Personnel Salaries and Civil Service Discharge or Reduction of Compensation and Requesting that Said City of San Bernardino's Special Municipal Election be Consolidated with the November 4, 2014 Statewide General Election Conducted by the County of San Bernardino. (#3429) Current Business Registration Certificate: Not Applicable Financial Impact: Account Budgeted Amount: <<Insert Amount» Account No. <<Insert Account No.>> Account Description: <<Insert Account Description Balance as of. <<Insert Date>> Balance after approval of this item: <<Insert Amount>> Please note this balance does not indicate available funding. It does not include non-encumbered reoccurring expenses or expenses incurred,but not yet processed. Motion: Adopt the Resolutions. Synoosis of Previous Council Action: Resolution 2014-59,passed unanimously and signed on March 17, 2014, authorized the formation of a Volunteer Citizen-Based Charter Review Committee,which was to review the Charter for the City of San Bernardino and present its recommendations to the Mayor and Common Council in a time frame that allowed the placement of proposed amendments on the November 2014 statewide ballot, should the council choose to. The Committee presented its findings and recommendations to the Council at its May 6, 2014 meeting. State law requires that any Charter amendment be discussed at two public hearings, set a month apart, after at least three weeks'notice to the public. The public hearings were held on June 17 2014 and July 17, 2014. The vote on whether to submit anything to the voters would have to occur no earlier than August 7, 2014 and the deadline to submit it to the County for inclusion on the November ballot is August 8, 2014. c Updated: 8/4/2014 by Linda Sutherland Packet Pg. 5 3429 Background: Pursuant to California Constitution Article 11, §3,the governing body may propose a charter or revision, amendment or repeal. Government Code §34458 provides that prior to approving the submission to the voters of a charter amendment, the governing body shall hold at least two public hearings on the matter of the amendment and the content of the proposed amendment. Notice of said public hearings is required to be given at least 21 calendar days prior to the date of each public hearing. The second public hearing is required to be held at least 30 days after the first public hearing. The governing body cannot conduct a vote on whether to approve the submission to the voters until 21 days after the second public hearing. The proposal would have to be submitted to the County Registrar of voters 88 days prior to the November election. Cost of Ballot Measures The cost for an argument-in-favor and a rebuttal of the argument for a council-submitted ballot measure is paid by the city. The rate is 3-cents-per-registered voter. At the current city-wide registration of about 77,300 (as of April 2014),the approximate cost for each ballot item is $4,640. The anticipated cost of an election was budgeted for and approved under the City Clerk's budget for 2014-15. The procedure for submitting an Argument or Rebuttal for a Charter Amendment is attached. City Attorney Review: Supporting Documents: Reso3429a (PDF) Reso3429b (PDF) SUBMITTING ARGUMENTS FOR OR AGAINST_DRAFT (PDF) Updated: 8/4/2014 by Linda Sutherland _ 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 3 BERNARDINO PROPOSING AN AMENDMENT TO THE CHARTER OF SAID CITY 4 RELATING TO SAFETY PERSONNEL SALARIES AND CIVIL SERVICE DISCHARGE OR REDUCTION OF COMPENSATION. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 6 CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. Recitals. ,d. 8 'n N 9 a) In accordance with the Constitution of the State of California, the City of San c� 10 Bernardino, a municipal corporation, has adopted a Charter. o N 11 b) The Mayor and Common Council of the City of San Bernardino desire to submit to v 12 'a the electors a Charter Amendment set forth below in bold type in this resolution. E 13 E 14 SECTION 2. Submittal to Electors. The following proposed amendment set forth in r- 0 1 s bold type tot the Charter of the City of San Bernardino is submitted to the qualified electors of o L 0- 16 the City of San Bernardino for their approval or rejection at the consolidated municipal election a, N e7' 17 to be held on Tuesday,November 4, 2014. rn 18 N PROPOSED CHARTER AMENDMENT NO. M 19 O Q It is proposed that Sections 186 and 254 of the Charter of the City of San Bernardino be 20 21 amended by replacing the current language to read in their entirety as follows: E ». 22 Section 186. Salaries. The Safety of the people in the City is a highest Q 23 priority of its government. Compensation of police, fire and emergency safety personnel 24 25 shall be set by resolution of the Mayor and Common Council after collective bargaining 26 as appropriate under applicable law, as it does for other City employees. 27 28 1 Packet Pg. 7 2.A.a 1 Section 254. Discharge or Reduction of Compensation. No employee in the 2 classified service shall be suspended, discharged or reduced in classification for 3 disciplinary reasons until the employee has been presented with the reasons for such 4 5 action specifically stated in writing. The reason for such discharge or reduction and any 6 reply thereto by the employee, shall be filed in writing with the Civil Service Board. 7 v N 9 00 10 O 11 d 12 /// -0 E 13 /// E 14 .N O 15 p a 16 N 17 tv 18 IT M 19 O 20 CD 21 v cv 22 23 24 25 /// 26 27 28 2 Packet Pg. 8 I �m 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO PROPOSING AN AMENDMENT TO THE CHARTER OF SAID CITY 2 RELATING TO SAFETY PERSONNEL SALARIES AND CIVIL SERVICE 3 DISCHARGE OR REDUCTION OF COMPENSATION. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting thereof, held on 7 the day of , 2014,by the following vote,to wit: 8 Ln N 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ 0 11 BARRIOS c 0 E 12 VALDIVIA E 0 13 E SHORETT Q 14 15 NICKEL Q 0- a 16 JOHNSON N a' 17 MULVIHILL ~� 18 N It M 0 19 Georgeann Hanna, City Clerk 20 The foregoing Resolution is hereby approved this day of 52014. CD 21 E 22 Q 23 R. Carey Davis, Mayor City of San Bernardino 24 Approved as to form: Gary D. Saenz, City Attorney 25 26 27 By 28 3 Packet Pg. 9 2.A.b RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 3 BERNARDINO CALLING A SPECIAL MUNICIPAL ELECTION ON A PROPOSED 4 CHARTER AMENDMENT RELATING TO SAFETY PERSONNEL SALARIES AND CIVIL SERVICE DISCHARGE OR REDUCTION OF COMPENSATION AND 5 REQUESTING THAT SAID CITY OF SAN BERNARDINO'S SPECIAL MUNICIPAL ELECTION BE CONSOLIDATED WITH THE NOVEMBER 4, 2014 STATEWIDE GENERAL ELECTION CONDUCTED BY THE COUNTY OF SAN BERNARDINO. 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE U) 8 CITY OF SAN BERNARDINO AS FOLLOWS: 04 9 M SECTION 1. Recitals. W 10 0 a) In accordance with the Constitution of the State of California, the City of San Bernardino, a municipal corporation,has adopted a Charter. E 12 'D E W 13 b) The Mayor and Common Council of the City of San Bernardino desire to submit to E 14 the electors a Charter Amendment concerning safety personnel salaries and civil 0 15 M 0 service discharge or reduction of compensation. 16 C4 SECTION 2. Special Municipal Election Called. A special municipal election is 17 18 hereby called and will be held in the City of San Bernardino on Tuesday, November 4, 2014, C4 0 19 for the purpose of submitting to the qualified electors of the City, for their approval or 20 disapproval, the proposed Charter Amendment as set forth in Exhibit"A"attached hereto. 21 E 'r SECTION 3. Request for Consolidation of Elections. Pursuant to Section 10400 of the 'M' 22 23 California Elections Code, the Mayor and Common Council of the City of San Bernardino 24 request that the Board of Supervisors of the County of San Bernardino consolidate the City's 25 special municipal election with the statewide general election to be held on November 4, 2014. 26 27 28 -Packet 2.A.b 1 The polls for said election shall be open at 7:00 a.m. of the day of said election and shall 2 remain open continuously from said time until 8:00 p.m. of the same day when said polls shall 3 be closed, except as provided in Section 14401 of the California Elections Code. 4 5 SECTION 4. Measure. The measure to be voted on at the consolidated special 6 municipal election as it is to appear on the ballot shall be as follows: 7 MEASURE Approve a Charter Amendment to replace the provisions of 8 N Section 186 with language providing for 9 compensation to be set by collective For the Amendment a bargaining as appropriate under applicable law o to and to replace the language in Section 254 0 11 with language providing that the suspension, Against the Amendment discharge or reduction in classification be 12 immediate upon written notice given to the E employee. d 13 The measure shall be designated on the ballot by a letter printed on the left margin of Q l a� 14 C the square containing the description of the measure as provided in the California Elections c 15 a O L Code. a 16 rn N 17 SECTION 5. Canvass of Returns. The Registrar of Voters of the County of San Bernardino is M 18 hereby authorized to canvas the returns of the special municipal election in all respects as if M 19 O there were only one election with only one form of ballot. Results of said special election shall 20 be certified by the Mayor and Common Council of the City of San Bernardino. 21 E v 22 SECTION 6. Notice of Election. The City clerk is hereby directed to publish a notice a 23 of the special municipal election which shall contain the following: 24 A. The date of the election; 25 B. The hours the polls will be open; 26 27 28 2 Packet Pg. 11 2.A.b 1 C. That the last day for receipt of primary arguments for or against the measure has 2 been established as 5:00 p.m. on August 21, 2014 in the City Clerk's Office, Second 3 Floor, City Hall, 300 North"D" Street, San Bernardino, California; 4 5 D. That the last day for receipt of rebuttal arguments is 5:00 p.m. on September 2, 2014 6 in the City Clerk's Office at the above location. 7 The City Clerk is directed to make arrangements to accept arguments and to arrange for v s sample ballots, which shall include the text of the proposed Charter Amendment, in accordance 9 M R with the California Elections Code. This notice may be combined with a notice of any other o 10 r O 11 municipal election to be held on the same date. v; c d 12 SECTION 7. Conduct of Election. The special municipal election so called shall be a a> 13 held in such precincts and at such polling places as shall be determined by the Registrar of q a) 14 Voters of the County of San Bernardino. The Board of Supervisors of the County of San o 15 p 16 Bernardino is hereby requested to issue instructions to the Registrar of Voters to take all steps 0- rn N 17 necessary for the holding of the consolidated election. The City Manager is hereby authorized la � to execute a contract for services necessary for conducting the special municipal election. The a M 19 C City of San Bernardino recognizes that additional costs will be incurred by the County by 20 F; 21 reasons of this consolidation and agrees to reimburse the County for any such costs. s 22 SECTION 8. Filing of Resolution. The City Clerk of the City of San Bernardino is r a 23 directed to file a certified copy of this Resolution with the Board of Supervisors of the County 24 of San Bernardino and to file a copy of this Resolution with the Registrar of Voters. 25 SECTION 9. _Transmission of Proposed Charter Amendment Pursuant to the 26 27 California Elections Code, the City Clerk is hereby directed to transmit a copy of the Charter 28 3 Packet Pg. 12 '2.A.b ® 1 Ballot Measure, and all other necessary documents, to the Office of the City Attorney for 2 purposes of preparation of an Impartial Analysis. 3 4 5 6 7 8 N 9 m 00 10 T- 0 11 cn c W 12 /// 0 E a) 13 E Q 14 i ` us 0 15 C 16 rn 17 18 M 19 20 21 E s 22 Q 23 24 25 26 27 fir 28 HI 4 Packet Pg. 13 2.A.b 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO CALLING A SPECIAL MUNICIPAL ELECTION ON A PROPOSED 2 CHARTER AMENDMENT RELATING TO SAFETY PERSONNEL SALARIES AND 3 CIVIL SERVICE DISCHARGE OR REDUCTION OF COMPENSATION AND REQUESTING THAT SAID CITY OF SAN BERNARDINO'S SPECIAL MUNICIPAL 4 ELECTION BE CONSOLIDATED WITH THE NOVEMBER 4, 2014 STATEWIDE 5 GENERAL ELECTION CONDUCTED BY THE COUNTY OF SAN BERNARDINO. 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a meeting thereof, held on v 8 the day of , 2014,by the following vote,to wit: LO 9 � Council Members: AYES NAYS ABSTAIN ABSENT o 10 r 0 11 MARQUEZ n c 12 BARRIOS E E 13 VALDIVIA E Q 14 SHORETT o 15 C- NICKEL a. 16 w 17 JOHNSON M 18 MULVIHILL N v M 19 0 N 20 Georgeann Hanna, City Clerk aD 21 The foregoing Resolution is hereby approved this day of , 2014. 0 22 w Q 23 R. Carey Davis, Mayor 24 City of San Bernardino 25 Approved as to form: Gary D. Saenz, City Attorney 26 27 28 By: 5 Packet Pg. 14 2.A.c City of San Bernardino SUBMITTING ARGUMENTS FOR OR AGAINST CITY BALLOT MEASURES 2014 LO N 00 WHO MAY SUBMIT AN ARGUMENT? Measures placed on the ballot by the City Council—The City Council, or any member or members of the Council so authorized, or any individual voter who is eligible to vote on the v measure, or any bona fide association of citizens, or any combination of voters and associations, -0 may file a written argument for or against any City measure. [EC 9282(b)] E w E FILING ARGUMENT --The deadlines for submitting arguments is generally 14 days from the calling of the election. (EC 9286). g a 0 Deadline for filing arguments is AT NOON August 21 a. 10-day public examination period is August 21-September 2 N Submitting the ARGUMENT U_ • TITLE OF ARGUMENT Q Primary arguments shall be titled either"Argument in Favor of Measure—" or "Argument Against Measure—" (EC 9282) z • TEXT OF ARGUMENT Q Primary arguments for or against a ballot measure can be up to 300 words in length. [EC p 9282(c)] Use the Word Count Standards available from the City Clerk's Office to 0 determine the number of words in the argument. Arguments/rebuttals must be typed or U_ p rinted. No handwritten arguments will be accepted. � Z w • ARGUMENT SIGNERS 2 D A ballot argument will not be accepted without the printed name and signature of the author. An argument may have up to 5 signatures. If there are more than 5 signatures, Q only the signatures of the first 5 will be printed. (EC 9283) Z • FILING ARGUMENTS File ballot arguments for or against City ballot measures with the City Clerk. Please call D the City Clerk's Office at(909) 384-5102 to make an appointment to file the argument. Ballot arguments must be accompanied by the completed Statement to be CD Filed by Author(s) of Arguments and Rebuttals on file at the City Clerk's office. w • ARGUMENTS CHANGEMWITHDRAWN a Packet Pg. 15 2.A.c Arguments may be changed or withdrawn by their proponents until the filing deadline, August 21, 2014. (EC9286) Arguments received prior to the deadline will be kept confidential until the filing deadline. N IF MORE THAN ONE ARGUMENT IS FILED cc to If more than one argument for, or more than one argument against, any City measure is filed before the deadline,the City Clerk will select one of the arguments using the criteria o in Elections Code §9287 c a� DEADLINE FOR FILING REBUTTAL ARGUMENTS '0 Deadline for filing rebuttals is August 25) E 0 10-day public examination period is August 21-September 2 E a The City Clerk will send a copy of the argument in favor of the measure to the authors of the o argument against the measure, and a copy of the argument against the measure to the authors of a 0 the argument in favor of the measure, immediately after the filing deadline.End of 10-day a.. Public examination Period for rebuttals is September S. a) N M • TITLE OF REBUTTAL ARGUMENT Rebuttal arguments shall be titled either"Rebuttal to Argument in Favor of Measure_" Q L) or"Rebuttal to Argument Against Measure_" (EC 9285) 0 i • TEXT OF REBUTTAL ARGUMENT z Rebuttal arguments can be up to 250 words. [EC 9285(a)(3)J a • REBUTTAL ARGUMENT SIGNERS 0 0 Signers of rebuttal arguments need not be the same as those on the primary arguments for o or against a measure. However, if signers of the rebuttal arguments are different from U- those of the primary argument, the signers of the primary argument must sign a Release z for Rebuttal Argument form, indicating the name of the person signing the rebuttal w argument in their place. 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He/she shall also have charge of the City` jail, if one is in existence, of all prisoners and of all those who are sentenced to labor upon the public streets, public works or other places of said City and shall execute and enforce all orders and sentences in reference thereto; and he/she g shall perform such other duties as may be prescribed by the Mayor and Common U Council or by the City Manager. (City Attorney opinion No. 91-2; City Attorney Opinion No. 90-25) c� `v cc Section 183. Fire Department-Membership. The Fire Department shall E consist of a Chief of the Fire Department and as many ranking officers,firefighters o E m and other employees as the Mayor and Council may determine. (City Attorney c a) Y Opinion No. 91-21) .$ a c U o A. Chief of the Fire Department-Duties. The Mayor shall appoint a Chief , of the Fire Department, subject to the approval of the Common Council. The Chief w .fl <111 v U of the Fire Department shall have the powers and duties that are now or that may hereafter be conferred upon chiefs of fire departments by the laws of the State, and such powers and duties shall in all respects be promptly executed by the Fire Chief and by authorized personnel in the Fire Department; and he/she shall perform such other duties as may be prescribed by the Mayor and Common Council or by the City Manager. Section 184. Supervision of City Manager Over Funds, Moneys, Etc. The City Manager shall supervise and possess power and authority over all the funds, moneys and appropriations for the use of the Police and Fire Department, also the organization, government and discipline, subject to the restrictions in Section 180 of this Charter, of said Departments, and shall have control of all the property and equipments belonging to the same. (City Attorney Opinion No. 91-2) Section 185. Power to Make Rules and Regulations. Said Mayor and Common Council shall have power to make all necessary rules and regulations, upon the recommendation of the City Manager, to carry into execution and effect the foregoing powers contained in this Article, and in general to enable the appropriate city officers to manage and control said departments. (City Attorney Opinion No. 90-25) Section 186. Salaries. There is hereby established for the City of San Bernardino a basic standard for fixing salaries, classifications, and working conditions of the employees of the Police and Fire Departments of the City of San Bernardino, and the Mayor and the Common Council in exercising the responsibility over these departments vested in them by this Charter shall hereafter be guided and limited by the following provisions: FIRST: Classification The following classes of positions are hereby created in the Fire Department and Police Department of the City of San Bernardino,and the code numbers,titles, and salaries as hereinafter set forth are hereby established and fixed for such classes of positions. The letter "P" represents "Position" and the five steps in C - 30 1 Positions 1, 2 and 3 being represented by the letters "a," "b," "c," "d" and "e" are: "a" designating the first six months of service in the respective departments, "b" designating the following eighteen months of service in the respective departments, "c" designating the third year of service in the respective departments, "d" designating the fourth year of service in the respective departments, and "e" designating the fifth and all subsequent years of service. Advancements in salary shall be made automatically step by step after each step of aggregate active service in the department in which the member is employed. Each person employed in the Fire Department and Police Department shall be entitled to receive for his/her services in his/her position the applicable respective rate or rates of compensation prescribed for the class in which his/her position is allocated.Additional titles may be established by the Mayor and Common Council, upon the recommendation of the City Manager, but only titles for Local Safety members of the Police and Fire Departments shall be placed in one of the following classifications having the most nearly equal duties and responsibilities. Local Safety members of the Police and Fire Departments shall mean any local police officer or local firefighter as defined under the provisions of the Public Employees Retirement System Law as specified in the California Government Code or amendments thereto. Class of Position Classification Title Title Number Fire Department Police Department P1 (Steps a,b,c,d,e) Firefighter, Battalion Chief Aide Police Officer P2 (Steps a,b,c,d,e) Fire Prevention Inspector Juvenile Officer, Detective, Senior Identification Inspector P3 (Steps a,b,c,d,e) Engineer Sergeant P4 Captain,Assistant Fire Lieutenant Prevention Engineer P5 Battalion Chief, Drill Captain, Superintendent Master, Fire Prevention of Records and Engineer Identification P6 Assistant Chief Assistant Chief P7 Chief Chief SECOND: Basic Salary Schedule (a) The monthly salaries of Local Safety members of the San Bernardino Police and Fire Departments included in classifications P1, P2, P3 steps "a" and "e" of P4, P5, P6 and P7 shall be fixed on August 1, 1976, for the balance of the current fiscal year and, thereafter, annually on August 1 of each succeeding year at the amount equal to the arithmetic average of the monthly salaries, paid or approved for payment to Local Safety members of like or most nearly comparable positions of the police and fire departments of ten cities of California with C - 31 F21 II populations of between 100,000 and 250,000 as shown in the latest Annual Report of Financial Transactions of California Cities published by the State Controller. (b) The ten cities used for fixing the monthly salaries shall be those ten cities remaining from an original and complete list of all California Cities in the 100,000 to 250,000 population range based on the latest Annual Report of Financial Transactions of California Cities, published by the State Controller after representatives of the City and the appropriate recognized employee organization have alternately struck the names of cities from the list one at a time until the names of ten cities remain. The representatives to strike the first name from the list shall be determined by lot. (c) In the event one or more of the ten cities does not have one or more of the comparable position classifications, the monthly salary for the particular classification, shall be computed as the arithmetic average of the next highest and next lowest comparable position classification of that City. (d)The salaries paid in step"a"shall be the same as the arithmetic average of the starting salaries of the comparable positions in the ten cities and the salaries paid in step "e" shall be the same as the average of the top salaries paid in the comparable positions in the ten cities. The salaries paid in steps "b," "c" and "d" shall be fixed at amounts which will cause the Local Safety members of the San Bernardino Police and Fire Departments to advance from the starting steps to the maximum pay steps in approximately equal salary advances. THIRD: Special Salary Provisions The following special provisions shall apply in addition to the compensation received in accordance with the above salary positions: (a) Police Department: Each police officer assigned to traffic enforcement duties on a motorcycle shall be paid when performing such duties during the period of assignment at the rate of not less than fifty dollars per month in addition to the pay step to which he/she is entitled as extra-hazard pay for motorcycle duty. The Police Chief shall certify monthly as to the assignment and the period of time worked to validate entitlement to the extra-hazard pay. (b) Police and Fire Departments: Any Local Safety member of the Fire and Police Departments temporarily acting in a position in a higher rank during periods of absence of the incumbent or during a vacancy in the position for more than ten (10) consecutive working days or five consecutive shifts, shall receive the same salary for the higher rank to which he/she would be entitled,were he/she promoted to that rank during the period in which the employee is acting in the higher rank. The Chief of the department in which the assignment to the higher rank occurs shall certify as to the assignment and the period of time worked in the higher rank to validate entitlement to the salary of the higher rank. (c) Fire Department- Paramedics. The Mayor and Common Council, upon C - 32 the recommendation of the City Manager, may authorize additional salary to be paid to local safety members of the Fire Department, assigned to duty as paramedics, during the period of such assignment. (d) Fire and Police Departments-Education/Longevity Incentive Pay. The Mayor and Common Council, upon the recommendation of the City Manager, may authorize additional salary to be paid to local safety members of the Police Department and the Fire Department who have completed educational or longevity requirements specified by the Mayor and Common Council. (e) Fire Fighters (1) All employees(below the rank of Battalion Chief)assigned to an average 56 hours per week assignment shall be compensated at an hourly rate of time and one-half(12)their regular hourly rate of base pay, such compensation to be computed for each one quarter(3) hour increment worked in excess of their average 56 hour weekly assignment. (2) All employees (below the rank of Battalion Chief) working a 40 hour per week assignment shall be compensated at an hourly rate of time and one- half(12)their regular hourly rate of base pay, such compensation to be computed for each 30 minute increment worked in excess of their regular eight (8) hour per day assignment of their 80 hours assignment during each pay period. SIXTH: Definitions The words and terms defined in this subsection shall have the following meanings in this section: (a) AShift" means a 24-hour duty for the Fire Department, except for the positions of Chief, Assistant Chief, and local safety members working in the Fire Prevention Bureau, and such other local safety positions as may hereafter be granted a forty(40) hour average work week by resolution of the Common Council upon the recommendation of the City Manager. (San Bernardino Fire&Protective League v. City(1962) 199 Cal.App.2d 401,404-419;City Attorney Opinion No. 97-1; City Attorney Opinion No. 95-2; City Attorney Opinion No. 93-16; City Attorney Opinion No. 93-13;City Attorney Opinion No. 93-4,City Attorney Opinion No. 92-16;City Attorney Opinion No. 92-2; City Attorney Opinion No. 91-32;City Attorney Opinion No. 91-23;City Attorney Opinion No. 91-3; City Attorney Opinion No. 91-2; City Attorney Opinion No. 90-17; City Attorney Opinion No. 90-11; City Attorney Opinion No. 89-21; City Attorney Opinion No. 88-11) Article XI School Districts Section 190. Definition. The San Bernardino City Unified School District, as such term is used by this Charter, shall mean and include all of the public schools of said District. (As amended by elections held March 21, 1961 and February 6, 1973.) 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ANALYSIS Charter Section 186 states in relevant part: "The letter 'P' represents 'Position' and the five steps in Positions 1, 2 and 3 being represented by the letters 'a, ' 'b, ' 'c, ' 'd' and 'e' are: 'a' designating the first six months of service in the respective departments, 'b' designating the fol- lowing eighteen months of service in the respective departments, 'c ' designating the third year of service in the respective departments, 'd' designat- ing the fourth year of service in the respective departments, and 'e ' designating the fifth and all subsequent years of service. Advancements in salary shall be made automatically step by step after each step of aggregate active service in the department in which the member is employed. " The language of the charter is unequivocal. Step increases are based on time in service, not on merit (or demerit) . �� . 15 Page Two Roger DeFratis Reduction in pay step as a disciplinary measure May 6,. 1988 CONCLUSION The sworn officer may not be reduced by a step in pay as a disciplinary measure. Pursuant to Charter Section 186 step increases are based exclusively on time in grade and no other factors. Respectfully submitted, f � � U�� APMES F F. PENMAN City Attorney JFP/CRG/dys cc: Mayor City Administrator City Clerk 16 O:RNA � SP Y CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attorney July 18, 1989 Opinion No: 89-21 10.39 TO: GORDON JOHNSON, Director of Personnel RE: Charter Section 186 - Procedure for Setting Safety Management Salaries QUESTION Does Charter Section 186 permit each classification of safety management personnel to select its own separate list of 10 guide cities for the purpose of setting salaries? CONCLUSION Charter Section 186 permits those classifications of safety personnel represented by the Management/Confidential bargaining unit to select a list of 10 guide cities separate from the lists selected by the SBPOA and SBFFA Local 891 ; however, all management classifications from within the same safety department must use the same list of 10 cities. This opinion supercedes and specifically overrides the section of City Attorney Opinion No. 10.27, dated September 27, 1977, which deals with this issue. ANALYSIS Charter Section 186 provides a basic structure for fixing salaries and classifications of safety employees of the Police and Fire Departments. The First provision creates the classes of positions and designate them as follows: DCR:mg 1 July 11, 1989 CITY HALL 300 NORTH `D'STREET- SAN BERNARDINO, CALIFORNIA 92418 17 (714)384-5355 .__ _ WIF`IWIII�7�YriiillYiillifilNFl NMYfMIIYIilY�1�1Mr1YYiilYYYbr a 1 GORDON JOHNSON July 18, 1989 Page Two CLASS OF POSITION Classification Title Number Fire Department Police Department PI (steps a,b,c Firemen, Battalion Patrolman, Policewoman d, e) Aide P2 (steps a,b,c, Fire Prevention Juvenile Officer, d, e) Inspectors Detective, Senior Identification Inspector P3 (steps a,b,c, Engineers Sergeants d, e) P4 Captains, Asst. Lieutenants Fire Prevention Engineer P5 Battalion Chiefs, Captains,Superintendent Drill Master, Fire of Records and Prevention Engineer Identification P6 Assistant Chief Assistant Chief P7 Chief Chief Those classifications are currently represented by the following bargaining units: Classification Number Department Bargaining Unit Pl, P2 & P3 Police SBPOA Pl, P2, P3 & P4 Fire SBFFA Local 891 P4, P5, P6 & P7 Police Management/ Confidential P5, P6 & P7 Fire Management/ Confidential The Second provision defines the salary setting procedure, and provides in pertinent part: "(a) The monthly salaries of Local Safety members of the San Bernardino Police and Fire Departments included in classifications Pl, P2, P3 steps "a" and "e" of P4, P5, P6 and P7 shall be fixed on August 1, 1976, for DCR:mg 2 July 11, 1989 E18 GORDON JOHNSON July 18, 1989 Page Three the balance of the current fiscal year and, thereafter, annually on August 1 of each succeeding year at the amount equal to the arithmetic average of the monthly salaries, paid or approved for payments to Local Safety members of like or most nearly comparable Positions of the police and fire departments of ten cities of California with populations of between 100,000 and 250,000 as shown in the latest Annual Report of Financial Transactions of California Cities published by the State Controller. (b) The ten cities used for fixing the monthly salaries shall be those ten cities remaining from an original and complete list of all California Cities in the 100,000 to 250,000 Population range based on the lastest Annual Report of Financial Transactions of California Cities, published by the State Controller after representatives of the City and the appropriate recognized employee or anization have alternately struck the names of cities from the list one at a time until the names of ten cities remain. The representatives to strike the first name from the list shall be determined by lot. " (emphasis added) It is clear from section (b) that the employees have a right to have a representative from their recognized employee organization participate in the selection of guide cities . Therefore, those employees in classifications represented by the management/confidential bargaining unit are entitled their representative participate in the selection system, to have establishing a separate thereby list of guide cities for safety management personnel of each department. However all safety management employees from each department must use the same list of guide cities. Section second provision of Section 186 goes on to say: (c) of the (c) In the event one or more of the ten cities does not have one or more of the comparable position classifications, the monthly salary for the particular classif- DCR:mg 3 July 11, 1989 i19 rrrrrrir- r GORDON JOHNSON July 18, 1989 Page Four ication shall be computed as the arithmetic average of the next highest and next lowest comparable position classification of that City. Clearly, section ( c ) points out that the section contemplated one list of 10 guide cities for all classes of employees reprsented by a single employee organization. Were each classification entitled to its own list, section (c) would be unnecessary. In conclusion, as in past practice , all position classifications represented by the SBPOA must use the same list of 10 guide cities and all classifications represented by the SBFFA Local 891 must use the same list of 10 cities, not necessarily the same list used by the SBPOA. Likewise , all Police Safety Management employee classifications must use the same list of 10 guide cities, with another list of 10 cities to be used by all Fire Safety Management employees. Presumably, the management employees from each department will have a representative from the Management/Confidential organization participate in the selection process on their behalf. Respect ully submit ed, IANE CATRAN ROTH Deputy City Attorney DCR:mg cc: Mayor, W. R. Holcomb Council Members City Clerk City Administrator Police Chief Fire Chief Concur: ?tyVttorney DCR:mg 4 July 11, 198 *01 f' 'i r NA l CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attorney August 17, 1990 Opinion No. 90-11 10.39 TO: William Wright, Fire Chief ATTN: Jim W. Knight, Deputy Chief RE: Shift Changes ISSUE You have inquired as to what is required to change a 24 hour shift employee to a 40 hour per week employee in the San Bernardino Fire Department. CONCLUSION The questioned work schedules may be changed by resolution of the Mayor and Council after meeting and conferring with the appropriate employee representatives. ANALYSIS The Charter of the City of San Bernardino, Section 186, Paragraph SIXTH, provides in relation to "shift" as follows: " ' Shift' means a 24-hour duty for the Fire Department, except for the positions of Chief, Assistant Chief, and local safety members working in the Fire Prevention Bureau, and such other local safety positions as may hereafter be granted a forty (40) hour average work week by resolution of the Common Council. " This section clearly provides that any safety position in the Fire Department may be changed from 24 hour duty to a 40-hour work week by resolution. It might be thought that this analysis DAB/ses/Shift.opn 1 CITY HALL 21 300 NORTH 'D'STREET• SAN BERNARDINO, CALIFORNIA 92418 (714) 384-5355 TO: William Wright, Fire Chief ATTN: Jim W. Knight, Deputy Chief RE: Shift Changes Page 2 " would conclude the matter, however the State has adopted the Meyers-Milias-Brown Act (Government Code Section 3500 et seq. ) which regulates employer-employee relations . This Act specifically applies to Charter Cities (Government Code Section 3501 (c); See also Los Angeles County Civil Service Com v Sup. Ct. (1978) 23 Cad 55). In pertinent part the Act provides: "The governing body of a public agency. . .shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations. . . and shall consider h fully such presentations as are made by the employee organizations on behalf of its members prior to arriving at a determination of policy or course of action. M " 'Meet and confer in good faith' means that a public agency, or such representatives as it may designate, and representatives of recognized employee organizations, shall have the mutual obligation personally to meet and confer promptly upon request by either party and continue for a reasonable period of time in order to exchange freely information, opinions, and proposals, and to endeavor to reach agreement on matters within the scope of representation prior to the adoption by the public agency of its final budget for the ensuing year. The process should include adequate time for the resolution of impasses when specific procedures for such resolution are contained in local rule, regulation or ordinance , or when such procedures are utilized by mutual consent. " (Government Code Section 3505) "Scope of representation" is defined by Government Code Section 3504 as including: all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order. " The cases have concluded that the Meyers-Milias-Brown Act should be broadly construed (American Federation of State etc Employees v City of Santa Clara ( 1984) 160 CA 3d 1006) . DAB/ses/Shift.opn 2 22 F � TO: William Wright, Fire Chief ATTN: Jim W. Knight, Deputy Chief RE: Shift Changes Page 3 In Dublin Professional Fire Fighters, etc . v Valley Community Services Dist ( 1975 ) 45 CA 3d 116, the District instituted a new policy of assigning overtime work to temporary employees. The District did not meet and confer with the union regarding the new policy and refused a request from the union for a conference to discuss the new rule after its adoption. The court stated: " . [T]he obligation, in proper cases, to 'meet ' and confer promptly upon request' is absolute. . " (at pg. 118) The Court concluded that the adoption of such a policy required the District to meet and confer with its employees. In Huntington Beach Police Officers ' Assn, v City of Huntington Beach (1976) 58 CA 3d 492, a Police Chief of a Ch tar er City unilaterly changed a 4 day, 10 hour per day schedule to a 5 day, 8 hour per day schedule for all employees except patrol officers. The Association claimed that the issue was subject to the Meet and Confer provisions of the Meyers-Milias-Brown Act. The City contended that the determination of working hours was excluded from the Act specifically by agreement between the parties and based on the right of the Police Chief to determine health and safety and department organizational issues as they affected the citizens of the City. The Court concluded, first, that an agreement between the parties could not be contrary to the Act (at pgs. 500-505). The Court also concluded that such an administrative decision was not excluded from the Act as pertaining to the organization of the department but under considerable authority was an appropriate matter for negotiation (at pgs. 503-504) . The case of Vernon Fire Fighters v City of Vernon (1980) 107 CA 3d 802 , although not relating to hours of work , is illustrative of the breadth of the provisions of the Act. The City of Vernon unilaterally adopted a resolution that eliminated the rights of fire fighters to use City facilities to wash and maintain private vehicles. The record disclosed that the firefighters in the City of Vernon had been afforded this right since 1923 . The issue arose when a firefighter submitted a Workers ' Compensation claim for an injury that occurred while washing his personal vehicle on City time with City equipment. The City contended that the adoption of the rule change was not within the scope of representation but fell within the exemptions DAB/ses/Shift.opn 3 23 TO: William Wright, Fire Chief ATTN: Jim W. Knight, Deputy Chief RE: Shift Changes Page 4 as a "general managerial decision. The Court concluded, after review of both State and Federal precedents, that the practice was sufficiently widespread and of sufficient duration" to constitute an implied condition of employment. " ( at pg. 817 ) Therefore the practice could not be terminated without meeting and conferring with the employees. It must be concluded that a change in work schedules may be imposed on designated fire department Safety employees by resolution of the Mayor and Council, but only after meeting and conferring with the appropriate employee organizations. Respectfully submitted, ENNIS A RLOWW,� Sr. Asst. City Attorney Concur: JAMES F. PENMAN ia� 7f < it --4r,.. 'ty Attorney CC: W.R. Holcomb, Mayor Council Members Rachel Krasney, City Clerk Craig Graves, City Treasurer Shauna Edwins, City Administrator Diana Ramirez, Acting Personnel Director DAB/ses/Shift.opn 4 24 M n } C I T Y O F S A N B E R N A R D I N O INTEROFFICE MEMORANDUM TO: DENNIS BARLOW, Assistant City Attorney FROM: DIANE CATRAN ROTH, Deputy City Attorney DATE: August 17, 1990 RE: Legal Opinion on Fire Department Shift Changes I agree with your analysis in the attached opinion, and had given the same information to Jim Knight, including the requirements under MMBA. However, his concern at the time was in changing the shifts of Battalion Chiefs only. Inasmuch as they are Management, and not represented by an employee organization, I advised him that the only requirement in that specific case would be a resolution by the Mayor and Council, ADIANE CATRAN ROTH Deputy City .Attorney DCR:mg cc: James F. Penman, City Attorney *51 ,i 't City of San Bernardino INTEROFFICE MEMORANDUM 9008-8001 TO: James F. Penman, City Attorney FROM: Jim W. Knight, Deputy Chief SUBJECT: Change in Employee Work Schedule DATE: August 1, 1990 In order to more effectively administer and manage the Fire Department, changes in Safety Employees work schedule, on a temporary basis, may be necessary. Under "Article X, Section 186, Sixth: Definitions" in the City Charter are definitions of exceptions to employees working the 24 hour shift schedule. Discussion with Diane Roth indicated that we could assign a 24 hour "shift" employee to a 40 hour schedule by Resolution of the Common Council. There is some question to whether or not a charter change may be required rather than a simple resolution. Would you please send us a written response to this question so that we may proceed with plans. Thank you very much. If you have any questions, please give me a call. Jim Knighe Deputy Fire Chief JK/sm 26 1• A O� i CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN CltyAttomey September 24, 1990 Opinion No. 90-17 10.39 TO: Roger DeFratis, Civil Service Chief Examiner Chief William Wright RE: Fire Department Promotion Process ISSUES The following questions have been posed to this office: 1. Must the candidates in the Fire Department who pass a promotional examination be placed on an eligible list in order of their total scores on the examination, or may they instead be placed on such a list in groups or in alphabetical order? 2. If a promotional list must be ranked, must the Fire Chief appoint the candidate with the highest score, or may the Chief appoint any candidate on the eligible list? 3. May the Fire Chief refuse to make appointments from an existing promotional eligible list when there are still available candidates on the existing list, and that list has been in effect for less than two years? 4. May the Fire Chief request that an examination be given to develop a new list when there are still available candidates on the existing list, and that list has been in effect for less than two years? 5. Must ten percent ( 100 ) of promotional examination scores consist of seniority points granted at the rate of one- half point per year up to a maximum of ten (10) points? 6. Must the Fire Chief, when making a temporary or acting higher rank appointment to a permanent position which can be DAB/ses/Promotio.opn 1 CITY HALL [2]7 300 NORTH 'D'STREET• SAN BERNARDINO, CALIFORNIA 92418 (714)384-5355 TO: Roger DeFratis, Civil Service Chief Examiner Chief William Wright RE: Fire Department Promotion Process Page 2 filled only on a temporary basis pending the return of a regularly appointed employee who is on authorized leave, select the highest candidate on the appropriate promotional eligible list, or may the Chief select any of the candidates on the eligible list? 7. Does a person who holds a temporary appointment for more than a year automatically become entitled to a permanent appointment? 8. Historically, the weights given to the various aspects of the promotional exam have been consistent for each exam. May they now be changed by the department? 9. Is the department bound by what is stated on the job announcement relative to the testing process? 10. Do the scores attained in Assessment Centers need to be posted? 11. What is meant by "meet and confer"? CONCLUSIONS The conclusions are contained in the responses to each of the 11 questions. ANALYSIS The above questions will be answered in order. 1. Must the candidates in the Fire Department who pass a promotional examination be placed on an eligible list in order of their total scores on the examination, or may they instead be placed on such a list in groups or in alphabetical order? Charter Section 252 of the City of San Bernardino provides as follows: "The Civil Service Board shall provide for promotion to all positions in the classified service, based on records of merit, efficiency, character, conduct and seniority. " Pursuant to this authority, Civil Service Rule 312 provides as follows: DAB/ses/Promotio.opn 2 28 T0: Roger DeFratis, Civil Service Chief Examiner Chief William Wright RE: Fire Department Promotion Process Page 3 "Promotional examinations shall be conducted by the same methods and standards as those for original entry into the service, except that they shall be restricted to qualified employees in lower classes in the city service, and the Board in announcing such examinations may establish standards of performance in present service and may grant credit based on the quality and length of such service. In announcing open examinations, the Board may also specify the terms under which permanent employees in appropriate classes may qualify promotionally, including the establishment, in the Board ' s discretion, of higher minimum scores for promotion candidates than required for candidates on an open basis. In such case, a permanent employee failing to meet the higher standard for the promotional examination but obtaining the passing mark for the open examination shall be placed on the open list. " In addition Rule 401.2 provides: "Promotional lists shall be created as a result of promotional examinations held by themselves or in conjunction with open examinations, and such lists shall take precedence for any class over the eligible list for that class. " Since Rule 312, quoted above, requires promotional exams to "be conducted by the same methods and standards" as entry level testing we must also look at the requirements for such initial testing. Civil Service Rule 315 provides that eligible lists shall be ranked according to the scores of the candidates with all preferences and credits factored in. I am informed that the practice of the City for nearly twenty years is to have two lists. The first is an "eligible list" which is ranked as provided above and which is used to determine which candidates have passed the testing process. The second list is a "certified list" which is sent to the subject department in alphabetical order. This list contains no numerical ranking. This practice is dictated by the City's Affirmative Action plan which provides at Section VII.G.2) . i) (pg. 20) as follows: " All certified applicants will be referred for selection/oral interview without numerical rating or ranking. " The result is that the eligible list as certified to the department may not be numerically ranked and has not been for many years. DAB/ses/Promotio.opn 3 29 T0: Roger DeFratis, Civil Service Chief Examiner Chief William Wright RE: Fire Department Promotion Process Page 4 2. If a promotional list must be ranked, must the Fire Chief appoint the candidate with the highest score, or may the Chief appoint any candidate on the eligible list? As noted above the list certified to the department may not be ranked. However, I am also informed that the department, through interviews, review of the employees' file and seniority has historically ranked the candidates internally. From this ranking past practice has been to appoint the highest-ranking candidate. The Meyers-Milias-Brown Act (Government Code Section 3500 et seq. ) requires that the City meet and confer in good faith with its employees over any issue which affects "wages, hours and terms and conditions of employment. " ( see Government Code Section 3504 and Section 3505 ) . This requirement includes changes to practices which have existed for some time (known as "past practices" ) . In Solano County Employees' Assn. v County of Solano ( 1982) 136 CA 3d 256, 265, the County decided to enforce a long-standing ( but previously unenforced) rule prohibiting employees from driving motorcycles on County business without the permission of the County Administrator. The Court concluded that the County was required to first meet and confer on the issue . In Vernon Fire Fighters v City of Vernon ( 1980) 107 Ca 3d 802, the City had had a long standing practice of allowing city fire fighters to wash their personal vehicles while on duty. The City sought to impose a management rule discontinuing the practice, but the Court found that the City must meet and confer with its employees before doing so. Promotional practices have been included in judicial determinations of meet and confer items (see Fire Fighters Union v City of Vallejo ( 1974) 12 C 3d 608, 618, and International Association of Fire Fighters Union Local 1974 v Pleasanton ( 1976) 56 Ca 3d 959, 971 ). - The result is that appointments must be made from the highest candidate determined pursuant to the internal ranking until the City meets and confers with its employees on the matter. 3. May the Fire Chief refuse to make appointments from an existing promotional eligible list when there are still available candidates on the existing list, and that list has been in effect for less than two years? Civil Service Rule 402 provides: DAB/ses/Promotio.opn 4 �30 TO: Roger DeFratis, Civil Service Chief Examiner Chief William Wright RE: Fire Department Promotion Process Page 5 "Whenever a vacancy exists the department head shall notify the Chief Examiner on forms provided by him, which shall be so designed as to provide all necessary information concerning the notice of the vacancy. " Civil Service Rule 409.B. provides that promotional lists remain in effect for a period of two years. Despite this two year term the rules clearly provide that the lists may be augmented periodically. "At any time during the life of an eligible list the Chief Examiner may add names to the list through giving another examination. The names shall be added and merged with the existing lists in order of final ratings of those added and those already on the list. " (Civil Service Rule 410) In addition there is nothing in the rules which requires the department head to make an appointment when a vacancy occurs. There could be many reasons for not making an appointment including a temporary hiring freeze to save funds, or a pending reorganization. However, if the department desires to make an appointment it must do so from the existing list. 4.. May the Fire Chief request that an examination be given to develop a new list when there are still available candidates on the existing list, and that list has been in effect for less than two years? As quoted above Civil Service Rule 410 gives the Chief Examiner the authority to augment a current list at any time. The rules are silent on whether the initiation of that process can or should come from a department head, but there is nothing which would prevent such a request. Certainly the Chief Examiner would have the discretion, subject to appeal to the Civil Service Board, to grant or deny that request. 5. Must ten percent ( 10; ) of promotional examination scores consist of seniority points granted at the rate of one- half point per year up to a maximum of ten ( 10) points? As discussed above, the list certified to the department must be listed in alphabetical order, but it has been department practice to take steps internally to rank these candidates. I am informed that this ranking has historically consisted of granting seniority points of ohe-half point per year up to a maximum of ten (10) points. Although as quoted above Section 252 of the DAB/ses/Promotio.opn 5 31 TO: Roger DeFratis, Civil Service Chief Examiner Chief William Wright RE: Fire Department Promotion Process Page 6 Charter provides for seniority to be considered in matters of promotion, the granting of seniority points as described appears to be in conflict with the spirit and intent of the Affirmative Action Plan (see Section VII, G.2) .c) and f) . ) Still, however, past practice requires that any change in this process first be the subject of meet and confer with the employees. 6. Must the Fire Chief, when making a temporary or acting higher rank appointment to a permanent position which can be filled only on a temporary basis pending the return of a regularly appointed employee who is on authorized leave, select the highest candidate on the appropriate promotional eligible list, or may the Chief select any of the candidates on the eligible list? I am informed that there are two classes of appointments to higher positions on an acting basis. First is what is known as "Permanent Acting. " This designation involves a situation of a long term vacancy where the employee is not expected to return, such as a disabling injury. When an employee is appointed to fill such a vacancy on a temporary basis, it has been past practice to appoint the highest candidate in rank on the internally ranked list. The second class is what is referred to as " Temporary Acting. " This involves vacancies of shorter duration where the employee is expected to return. It has been past practice in these situations to not appoint the highest candidate on the list, but to instead appoint a qualified individual from the same shift, whatever his or her ranking. Then upon the return of the employee he returns to his former position. Civil Service Rule 415 and Section 186 THIRD(b) of the Charter both refer to temporary appointments to higher positions. These provisions are silent as to whether the highest candidate on the current list must be appointed or if any candidate on the list may be utilized. In light of the past practice, if any change is desired the City must meet and confer with the employees on the issue. 7. Does a person who holds a temporary appointment for more than a year automatically become entitled to a permanent appointment? For the temporary appointments as described above there is no provision which would automatically convert the temporary appointments to permanent ones, because by their very nature the appointments are holding positions belonging to another employee. There is no authorization to add an additional employee beyond DAB/ses/Promotio.opn 6 3a TO: Roger DeFratis, Civil Service Chief Examiner Chief William Wright RE: Fire Department Promotion Process Page 7 those authorized by the Mayor and Council. Of course if the appointment is, due to past practice, from the highest position on the list, he or she will be entitled to the next actual opening. Of course if the absent employee returns the temporary employee will return to his prior position and his place on the certified list. 8. Historically, the weights given to the various aspects of the promotional exam have been consistent for each exam. May they now be changed by the department? The past practice of consistently assigning the same weights at each exam for the various aspects of the promotional test is an integral part of the promotional process and any change would therefore be subject to meet and confer. 9. Is the department bound by what is stated on the job announcement relative to the testing process? The terms of the job announcement must be adhered to. The job announcement outlines the terms and conditions upon which employment will be offered with the City. If the actual terms are different from those specified or if the terms are changed part way through the process, we not only may limit the qualified applicants who might have applied, but the City may face serious legal actions especially in the areas of discrimination. 10. Do the scores attained in Assessment Centers need to be posted? Assessment Centers are intensive, lengthy procedures by which applicants for a position are assessed as to their ability to perform the job sought. Although somewhat widely used Assessment Centers are still of rather recent vintage. We are assuming that their use in San Bernardino and any past posting of scores has not reached the level of a "past practice" requiring meet and confer to change. If the Assessment Center is used by Civil Service in the initial testing process the scores may not be posted since the eligible candidates are to be certified to the department without a numerical ranking. If the Assessment Center is conducted by the department with the approval of Civil Service as part of the department's evaluation process there is nothing that either requires or prohibits the posting of scores. 11. What is meant by "meet and confer"? DAB/ses/Promotio.opn 7 33 g e r t y 8 g t TO: Roger DeFratis, Civil Service Chief Examiner Chief William Wright RE: Fire Department Promotion Process Page 8 This issue is discussed above under Question No. 2. it is important to note that although the Meyers-Mil ias-Brown Act encourages the parties to reach agreement it does not require such agreement. If agreement cannot be reached and the proper procedures are followed, the City may still implement the change( s ) it proposed (see People ex rel . Seal Beach Police Officers Assn. v City of Seal Beach ( 1984) 36 C 3d 591, 601) . The Director of Personnel of the City , or his or her representative has been designated to represent the City in meeting and conferring with employee organizations (Resolution 10584, Section 3(C), as amended) . Respectfully submitted, DENNIS A BARLOW, Sr. Asst. City Attorney Concur: JAMES F. PENMAN ty Attorney CC: W.R. Holcomb, Mayor Council Members Rachel Krasney, City Clerk Craig Graves, City Treasurer Shauna Edwins, City Administrator DAB/ses/Promotio.opn 8 34 t ®4 N L CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attorney January 9, 1991 Opinion No. 91-2 TO: Mayor and Common Council RE: Contracting for Police Services ISSUE The question has arisen whether the City may abolish the City's Police Department and contract with the County Sheriff to provide police services within the City limits. CONCLUSION Before contracting with the County for the Sheriff to provide police services within the City, a Charter amendment must be presented and approved by the voters. ANALYSIS The Charter of the City of San Bernardino provides that the Mayor and "Council shall have power to establish and maintain a police force. " (Section 40(g) ). In addition the Charter grants to the Mayor and Council the "power to appoint and remove such policemen. . . " (Section 40( s) ). Charter Section 180 provides that the police department "shall be under the control and management of the Mayor and Common Council . . . " The Charter further grants the Mayor and Common Council the power: " To fix and prescribe the salaries , qualifications , duties, rank, badges of office and uniforms of the officers, members and employees of said departments ; to prescribe rules and regulations for the government and discipline of the same, and to DAB/ses/Contract.opn 1 CITY HALL [35] 300 NORTH 'D'STREET• SAN BERNARDINO, CALIFORNIA 82418 (714) 384-5355 TO: Mayor and Common Council RE: Contracting for Police Services Page 2 prescribe and enforce penalties for violations thereof; subject to the Civil Service provisions of this Charter. " The Charter provides for a Chief of Police ( Section 181 ) appointed by the Mayor subject to the approval of the Council (Section 182) . The Charter is very clear that the Mayor and Council "shall supervise and possess power and authority over all the funds. . . " of the Police Department (Section 184) and also entrusts in the Mayor and Council "The organization, government and discipline of" the Police Department, and gives them the "control of all the property and equipment belonging to the same. " (Section 184) It is clear that if the City were to contract with the County Sheriff to provide police services within the City, that the Sheriff would be responsible for the "organization, government and discipline" of the department and not the Mayor and Council. Very likely the County would also have control over the property and equipment of the department, all in violation of the above noted Charter provisions. The department would thereafter be under the control and management of the County Sheriff rather than the Charter required Mayor and Council. But in addition, the voters by initiative adopted Charter Section 186, which establishes a specific process for the setting of salaries in the Police Department. This process would not be obviated by a contract with the Sheriff. The salary provisions of Section 186 would still apply to Sheriff employees performing the City' s police functions. However, upon closer analysis it may prove impossible to incorporate the Charter Section 186 procedure with that used by the County. DAB/ses/Contract.opn 2 [3:6] SZ a 999} TO: Mayor and Common Council RE: Contracting for Police Services Page 3 i The result must be that a contract for police services with the County first requires a Charter amendment to remove the responsibility of the Mayor and Council to oversee the funds, property and equipment of the Police Department, and to either eliminate the salary provisions of Section 186 entirely or provide that they don't apply when Police services are contracted for. In addition such Charter amendment must eliminate the requirement that the Police Department must be under the control and Management of the Mayor and Common Council. Respectfully submitted, NNIS BARLOW, Sr. Asst. City Attorney Concur: JAMES F. PENMAN ty Attorney CC: Council Members Rachel Krasney, City Clerk Craig Graves, City Treasurer Shauna Edwins, City Administrator DAB/ses/Contract.opn 3 [37] AR CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attorney February 11, 1991 Opinion No. 91-3 TO: BARBARA DILLON, Director of Personnel RE: Firefighter Paramedic Classification ISSUE You have inquired whether a new classification of P1. 5 may be created for firefighter paramedics. CONCLUSION Charter Section 186 prevents the establishment of an additional classification. FACTS Currently, the City grants incentive pay to paramedics at a maximum rate of $300 per month. However, even with the incentive pay, the Fire Department experiences problems with enough firefighters achieving certification and or with paramedics allowing their certification to lapse. It has been suggested that establishing a new classification of P1 .5 would help to alleviate that problem and also give paramedics a career ladder. ANALYSIS Charter Section 186 specifically establishes classifications for positions in the fire department, designated P1 through P7 . Within each of these classifications are position titles. For example, within classification P1 are the titles Fireman and Battalion Chief Aide. The First Section of Charter Section 186, Classification, provides that the Mayor and Council may establish additional titles , but is silent on whether additional classifications may be similarly created. In view of the fact DCR/kb[Firefighter Para.opn] CITY HALL � 300 NORTH 'D'STREET• SAN BERNARDINO, CALIFORNIA 92418 (714) 384-5355 ,F R T0: Barbara Dillon, Director of Personnel RE: Firefighter Paramedic Classification Page 2 February 11, 1991 that the classifications are laid out very specifically, and no authority is conferred to add additional classifications, the City is limited to those classifications established by the Charter. The City may continue to pay incentive pay under Subsection (c) of the Third Section of Charter Section 186, Special Salary Provisions, which allows the Mayor and Council to authorize additional salary for members of the fire department assigned as paramedics. Respectfully submitted, ZR D NE CATRAN R TH Deputy City Attorney Concur: JAMES F. PENMAN f f ' Gity Attorney I cc: Mayor Council Members City Clerk City Treasurer City Administrator Director of Personnel Director of Civil Service Chief of Fire Department DCR/kb[Firefighter Para.opn] E39] o Y b ae. a CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attorney July 3, 1991 Opinion No. 91-23 TO: William Wright, Fire Chief RE: Fire Personnel -- Acting Pay ISSUE When an employee who is working in a higher-acting rank takes time off for sick, holiday or vacation leave, does that constitute a break in the higher-acting service, resulting in a loss of the higher-acting pay? CONCLUSION No. If an employee has been appointed to act temporarily in a higher ranking position, he/she may take sick or other leave without interrupting the higher-acting service. FACTS An employee is working in a higher rank in the absence of the incumbent or during a vacancy in the position, and has completed five shifts. He then takes off half of the sixth shift as sick, holiday or vacation leave, and then continues to work in the higher rank. Does he have to work more than five continuous additional shifts without a break to receive the higher-acting pay? ANALYSIS Article 6-F of the current Firefighter Memorandum of Understanding reiterates Charter Section 186, which states: Any Local Safety member of the Fire and Police Departments temporarily acting in a position in a higher rank during periods of absence of the incumbent or during a vacancy in the position for more than ten (10) consecutive working days or five consecutive shifts, shall receive the same salary for the higher rank to CITY HALL 401 300 NORTH 'D'STREET- SAN BERNARDINO, CALIFORNIA 92418 (714)384-5355 3 j,. f TO: William Wright, Fire Chief RE: Fire Personnel -- Acting Pay Page 2 which he would be entitled, were he promoted to that rank during the period in which the employee is acting in the higher rank. Ordinarily, an employee is appointed to act at a higher rank for a specified length of time (e.g. , while a Battalion Chief is out on a month's vacation, or until an unfilled position is filled) . The fact that he/she takes sick leave or other brief approved leave during that time should not be considered a break in higher-acting service. r Section 9 of Resolution 6433 defines "continuous service" as as a period of "compensated service. " Thus, the use of sick leave or vacation does not constitute a break in service for purposes of calculating seniority or other purposes. Likewise, the use of sick leave, holiday or vacation should not be considered a break in continuous service in a higher-acting position. Respectfull submitted, c E CATRAN ROTH, Deputy City Attorney Concur: JAMES F. PENMAN (efty Attorney ~ cc: Mayor Council Members City Clerk City Administrator DCR/dys\actngpay.opn July 2, 1991 41 CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN C/ty Attomey October 2, 1991 Opinion No. 91-32 TO: Barbara Dillon, Personnel Director RE: Charter Section 186 - Comparison with salary increases approved ISSUE You have inquired whether Charter Section 186 requires a comparison of salaries of other cities where such salaries have already been approved but where payment is to be in the future. CONCLUSION The Charter requires comparison not only with salaries actually paid but also with salary increases "approved payment, " but not yet paid. for ANALYSIS Section 186 of the Charter of the City of San Bernardino is the result of an initiative measure by the people of the City. Its purpose is to insure the police officers and fire fighters receive a competitive salary. As it relates to the present question the section provides: "The monthly salaries of Local Safety members of the San Bernardino Police and Fire Departments. . .shall be fixed. . .annually on August 1 of each. . .year at the amount equal to the arithmetic average of the monthly salaries, paid or approved for 2ayment to Local Safety members of like or most nearly DAB/ses/Salary.opn 1 CITY HALL [42] 300 NORTH 'D'STREET• SAN BERNARDINO, CALIFORNIA 92418 (714)384-5355 TO: Barbara Dillon, Personnel Director RE: Charter Section 186 - Comparison with salary increases Page 2 comparable positions of the police and fire departments of ten cities of California with Populations of between 100,000 and 250,000 as shown in the latest Annual Report of Financial Transactions of California Cities published by the State Controller. " (Charter Section 186, SECOND (a), emphasis added) Charter Section 186, SECOND (b) outlines how the comparable cities are selected. It is common practices for many public agencies when negotiating salary increases to their employees to give a small increase in July and another small increase in the following January, thereby giving the employee two raises and saving the public agency six months of the second increase. Similarly some agencies will not give an increase at all in July but begin any agreed-to raise in January. The question then becomes, if these raises are known and approved on August 1 when the Charter requires that the comparison be made, although not yet being paid to the employees, should those making the comparison compare only to the actual salary paid or take into consideration the raises already approved but not yet received. This issue was discussed in an informal opinion of the City Attorney's office issued on August 8, 1984. There it was stated: "There are at least two things clear under Section 186: only salary, and not other items of compensation, is to be averaged, and the salary must be formally authorized as of August 1. It may be paid after August 1, but the amount of the future payment must be fixed on August 1. Salary is formally authorized when a city is bound by ordinance or resolution to pay. A memorandum of understanding which has been approved by the governing body is also binding. " (page two) At the very least, this informal opinion is evidence of past practice which would require meet and confer to change ( see the Meyers-Milias-Brown Act Government Code §3500 et seq. ) but it is also reflective of the clear wording of the Charter language. The Section of the Charter quoted above notes that the salary must be either paid or approved for payment. The Charter then requires that in some pro rata fashion salary increases that have been DAB/ses/Salary.opn 2 TO: Barbara Dillon, Personnel Director RE: Charter Section 186 - Comparison with salary increases Page 3 "approved for payment" but not yet paid must be averaged into the determination of the salary to be paid to Local Safety employees of the City of San Bernardino. Respectfully submitted, D NIS A. BLOW, Sr. Asst. City Attorney Concur: JAMES F. PENMAN ity Attorney cc: W.R. Holcomb, Mayor Council Members Rachel Krasney, City Clerk David C. Kennedy, City Treasurer Shauna Clark, City Administrator All Department Heads DAB/ses/Salary.opn 3 44 City of San Bernardino INTEROFFICE MEMORANDUM 9109-1816 TO: James F. Penman, City Attorney FROM: Barbara Dillon, Personnel Director SUBJECT: Charter Section 186 Interpretation from Fire Fighters Local 891 DATE: September 23, 1991 COPIES: Shauna Clark, City Administrator; Diane Roth, Deputy City Attorney III; Fire Chief Will Wright Today I received the attached request for an interpretation of Charter Section 186 from Tom Parlett, President, Fire Fighters' Local 891. My position is to compare salaries that are effective as of August 1 of each year. Fire Fighters Local 891 is recommending prorating salary increases effective after August 1. I would appreciate a response to Fire Fighters Local 891's request as soon as possible. Thank you BD/dm attachment 4 45 sm NAL,4sso fla#OrERS Z 8 Z LOCAL 991 OFFICE; 932 NORTH "D" STREET F°• O. BOX 2703 SAN BERNARDINO, CALIFORNIA 92406 23 September 1991 Ms. Barbara Dillon City Personnel Director 300 N. D St. San Bernardino re: Charter Section 186 Interpretation Dear Ms. Dillon, A question of interpretation has arisen regarding salaries paid or approved for payment as utilized under Charter Section 186. Since you have informed us that future pay raises for cities used in Charter Section 186, will be excluded, we are requesting an opinion from the City Attorney based on the following: Our contention is that, if one of the survey cities has approved a salary increase for a latter part of the year, and that increase was approved as of August 1, said increase should be averaged and used (See attached S. B. City Opinion 84 10.85). In past practice, we have always used these raises based on a pro-rated average. To prove our point of contention, Please San Bernardino Fire Salary Survey. If the City l had not City of take into consideration these future raises, why does the form to specifically ask for them. The answer is, because they were used in the past. I have been informed by the San Bernardino Police Officer's Association President, Steve Filson, that they are also pursuing this Affiliated With: INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS AFL-CIO. FEDERATED FIRE FIGHTERS OF CALIFORNIA, CALIFORNIA STATE FEDERATION OF LABOR, SAN BERNARDINO CENTRAL LABOR COUNCIL 1 D46 iY matter. I feel that a reaffirmation of the previous Deputy City Attorney's opinion would be in order. I looked forward to your expedient response to this matter. If I can be of any assistance in this matter please call 888-3511. Respectfully Submitted, c , Tom Parlett President Local 891 cc/as: Fire Chief William Wright POA President Steve Filson 47 ' • , lol 1 T Ur 0A1 . L5Lh1NJAhU IVV IVICIVIVhHIVL To Mary Jane Perlick From Joanne Fento Director of Personnel Subject Charter Section 186, Date Augugt 81t19 Opinion Request Approved Date Opinion No. 6 10.85 We have received your request of July 24, 1984, for a legal opinion regarding two questions: (1) whether a substitute may be used for the Annual Report of Financial Transactions and (2) whether a sum of money which the employee may take as a salary increase or a fringe benefit is to be averaged as salary under Section 186. For the reasons set forth below, it does not appear that a formal legal opinion need be prepared to answer these questions. As to the first question, this office issued a formal legal opinion on September 22, 1983, as to the meaning of the reference to the Annual Report of Financial Transactions of California Cities" in Section 186 of the Charter. A copy of this opinion is attached for your information. There are no facts presented which would change the analysis and conclusion in this opinion. Briefly, the Charter requires that salaries for all police and fire safety personnel are to be fixed on 'August 1 each year. At that time, ten comparison cities are to be chosen from a specific publication, the latest Annual Report of Financial Transactions of California Cities. Charter language which is plain is to be strictly followed unless preempted by some other state law, -which is not the' case in this instance. Had it-been-Intended that- `the-:cities be selected from a list. certified by the- Con£rol1GtT6 $_ they population for the last fiscal yea r,'languatfewith''thut-4_ k specific meaning would have been _nser:;"_'It''was noeo- t The Charter does pnotI provide that. the:.hies are to beZf� selected from a • p py;'nor`a'veri€ied .z. statement, but from the latest Annual Report, regardless of the year. The supporting rationale for this conclusion is set forth in the cited opinion. Pursuant to that opinion, it would not be appropriate to use a verified printer's proof copy relative to city population, but only the latest published report. As noted, the procedure is not to be varied from year to year or from group to group. In determining whether or not a salary increase, as opposed to a fringe benefit, has been granted by another jurisdiction, it is necessary to scrutinize the facts in each individual case, based on copies of the resolution or ordinance adopted. It is the common practice of cities to adopt a salary ordinance which sets forth the salary schedule cirr 0111 THE-NOVI ; 4, L� 1 Mary Jane dick August 8, 1984 Page Two for the various positions in the city, such as the salary schedule .adopted for the City of San Bernardino in Resolution No. 6413. This establishes the amount of salar' to which all employees in a particular classification are enitled and which will be reported as earnings to the State and Federal government. This is the salary to which Section 186 refers. Whether. an employee takes his salary as a cash payment or authorizes the City to make some other distribution of the funds does not change the employee's right to receive a specific dollar amount as salary. There are at least two things clear under Section 186: only salary, and not other items of compensation, is to be averaged, and the salary must be formally authorized as of August 1. It may be paid after August It but the amount of the future payment must be fixed on August 1. Salary is formally authorized when a city is bound by ordinance or resolution to pay. A memorandum of understanding which has been approved by the governing body is also binding. As noted, a conclusion as to what is or is not salary cannot be reached absent additional facts as to each specific instance. The above remarks. are offered as a guide to your analysis. If you have any further questions, please forward a copy of the City's documents setting forth the specific factual circumstances of the compensation in question. JOANNE FENT014 Deputy City Attorney JFinb attach. t . ; cc�I I � I ICI I i • r . J'" SAN BERNARDINO POLICE OFFICERS' ASSOCIATION R 1299 NORTH"E" STREET,SAN BERNAFmmo,CA 92405 TEi.E.(714)889-0661 FAX(714)884-5182 N O,• �A�e�ra�Q?1 September 23, 1991 MI'. X71-IMeS Pcnnlan, City Attorney CA, of San Bernardino 300 Y. "D" Street San Bernardino, CA 92401 Dear Mr. Penman, DUI-hIA' z•ecent discussion with Pet.sonnel Director, Barbara Dillon, re,'ltilig to 1991- G2 sakiry negotiations per City Charter Section 186, the oues•tion of salary increases Urithi17 the tiDMI pezior..' being included in the calculation was 7xised. Ms. Dillon .stated that the only figures that would be considered t,•culd be those �ubnjitteci bzr the catupszablr cities, ith the stated salaries as of Au °ust 1, 1991, it was brou';llt to her attention that several of the cities involved in the survey included salarx increases that would occur after August 1, but were ratified, prior to that date. We were informed that the only figure that would be considered were those submitted as of August. 1st, and that a pro-rated average would not he used that would include those additional figures. We feel that this pro-rating of salaries has been a matter of past practice, and cite a City Attor'ney's Opinion 84-10,85, by Debut,: City Attorney doaiwe Fenton in support of this practice., and intez°pI'etation, During this meeting, our Association) did ratify the 91-LI jnc;•esses u-ith :ire understanding that {1a inte)-pretation by your office would be requested, I am further aware t.hi,,t the same request is being made by the Firefighter's President, 1'= Parlc:tt i•,�i<4ting tc:, this issue. We appreciate you prompt attention to this matter. If I ma.v be of assisl.en,~r, please do not hesitate to contact me. ,�t.�•rc:l L. Fliscr7, Pz•��;.i�1f:r�t 15:11 t. r •� L Np D 4 CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attome y January 13, 1992 Opinion No. 92-02 TO: Shauna Clark, City Administrator Barbara Dillon, Personnel Director RE: Negotiability of Charter Section 186 Protections ISSUE The question has arisen whether the City may meet and confer with the employee associations covering the police and fire departments to lessen in any way the protections afforded to those employees by Charter Section 186, and specifically to agree that such employees will take a 5% salary reduction separate from the process outlined in that Charter provision. CONCLUSION The City and the employees associations may not agree to lessen or depart from the protections found in Charter 186. ANALYSIS The voters of the City of San Bernardino have adopted Section 186 of the Charter of the City establishing "a basic standard for fixing salaries, classifications, and working conditions of the employees of the Police and Fire Departments of the City of San Bernardino. . . " The provision declares, " . . . the Mayor and the Common Council. . , shall hereafter be guided and limited by the following provisions [of Section 186] . " (emphasis added) The Section provides that salaries for the employees will be set on August 1 of each year "at the amount equal to the arithmetic average of the monthly salaries, paid or approved for payment to local safety members of like or most nearly comparable positions of the police and fire departments of ten cities of California with populations of between 100,000 and 250,000. . " The section goes DAB/js/186.opn 1 CITY HALL 521 300 NORTH `D'STREET• SAN BERNARDINO, CALIFORNIA 92418 (714)384-5355 `5 r To Shauna Clark, City Administrator Barbara Dillon, Personnel Director Re Negotiability of Charter Section 186 Protections Page : 2 on to prescribe how the 10 cities are chosen. The Meyers-Mi 1 ias-Brown Act (Government Code §3500 et seq. ) has been adopted "to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment. . . " (Government Code §3501(c) ) . As part of the Act Section 3504 of the Government Code outlines the scope of representation relating to which "meet and confer" sessions, or negotiations may be conducted: "The scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order" (emphasis added) In the case of San Francisco Fire Fighters v. City and County of San Francisco ( 1977) 68 CA 3d 896 the court considered whether the City and the employees' association could agree to an arbitration provision when the power to make such decisions was not delegated by the City' s Charter. The Court concluded that they could not (at pg. 901) . "The City has chosen, by the vote of a majority of its electors, to adopt a charter (Charter) under the provisions of the State' s constitution; the City' s ordinances and regulations are subject to the restrictions and limitations of the Charter, which shall supersede. all laws inconsistent therewith" (Cal Const. Art. XI §3( a) , formerly §§7 1/2, 8. ) "The Charter 'represents the supreme law of the City and County of San Francisco subject, of course, to conflicting provisions in the United States and California Constitutions, and to preemptive state law. ' (Harman v. City and County of San Francisco, 7 Ca1 .3d 150, 161. . } ` [Charter] cities may make and DAB/j s/186.opn 2 5 To Shauna Clark, City Administrator Barbara Dillon, Personnel Director Re Negotiability of Charter Section 186 Protections Page : 3 enforce all ordinances and regulations subject only to restrictions and limitations imposed in their several charters. . . Within its scope, such a charter is to a city what the State Constitution is to the State. ' (Campen v. Cereiner, 15 Cal.App.3d 836, 840. . . )" (San Francisco Fire Fighters v. City and County of San Francisco ( 1977) 68 CA 3d 896, 898-899) To allow the City and a willing employee association to agree to something less or different from that which is required by the Charter is virtually attempting to amend the Charter by agreement without resort to the voters as required by law. It seems clear that the Charter language emphasized above "limits" the City in what it can do in this area, the Meyers- Milias- Brown Act exempts an "activity provided by law" from the areas subject to negotiation and the right of the people to establish a Charter and amend it as they will cannot be thwarted. The result is that the City and the employee organizations may not negotiate a different or lesser rate of pay than is outlined in the Charter. The individual employees could, however agree to turn back to the City any resulting increase. Respectfully submitted, D NNIS A ARLOW, Sr. Asst. City Attorney Concur: JAMES F. PENMAN /" ,,amity Attorney 6 cc: W.R. Holcomb, Mayor Council Members Rachel Krasney, City Clerk David C. Kennedy, City Treasurer Shauna Clark, City Administrator All Department Heads DAB/js/186 .opn 3 [5:4] OEtaNARDati� o G. CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F.PENMAN City Attorney April 21, 1992 Opinion No. 92-16 TO: ANDREW GREEN, Director of Finance RE: SAFETY EMPLOYEES' PROMOTIONS & HIGHER ACTING PAY ISSUE You made the following inquiry: at what step should a safety officer be paid when promoted or temporarily placed in a higher classification? CONCLUSION A safety officer should be paid at the same step he/she occupied in the previous classification, based on the number of years of service in the department. FACTS A fire safety officer in the Firefighter classification for four years is paid at step "e. " He/she is promoted to engineer. The lowest step in the Engineer classification which would give the firefighter an increase in salary is step "c. " The question is, is he/she paid at the "c" step, which would result in an increase in salary, or at the "e" step, based on years of service within the department. The same question is asked regarding a Firefighter in a temporary acting capacity in a higher rank. ANALYSIS Ordinarily, throughout the City, employees are promoted to the lowest step in the higher classification which would result in an increase in pay (Resolution No. 6413) . However, resolutions are preempted by the Charter. For safety employees, salaries are determined pursuant to Charter S 186. Charter S 186, FIRST, in explaining the Classification of safety officers, states: CITY HALL 1551 300 NORTH 'D'STREET • SAN BERNARDINO, CALIFORNIA 92418 (714) 384-5355 TO: Andrew Green, Director of Finance Re: Safety Employees' Promotions & Higher Acting Pay April 21, 1992 Page 2 " . . .The letter "P" represents "Position" and the five steps in Positions 1,2 and 3 being represented by the letters "a, " "b, " "c, " "d" and "e" are: "a" designating the first six months of service in the respective departments, "b" designating the following eighteen months of service in the respective departments, "c" designating the third year of service in the respective departments, "d" designating the fourth year in the respective departments, and "e" designating the fifth and all subsequent years of service. Advancements in salary shall be made automatically step by step after each step of aggregate active service in the department in which the member is employed. . . . " Thus, it is clear that it is service within the department, not service within the classification within the department which determines an officer's step on promotion. Thus, if a Firefighter who is paid at step "e" is promoted to Engineer, he/she would be placed at step "e, " despite the fact that step "e" is actually two steps higher than the lowest step which would result in a pay increase ( "step to step" promotion) . Additional support for a literal interpretation of the language of Charter 9186, FIRST, is the fact that it has been the consistent past practice of the City to promote safety officers "step to step. " One may argue that this interpretation makes little administrative sense. Especially disturbing from an administrative perspective is the fact that it generally requires four years in the department before an officer qualifies for Engineer, making steps "a" through "d" unnecessary, except for the purpose of comparison with other cities for setting salaries. However, the language of the charter is clear that assignment to step is based on years of service within the department, and the Charter is the expression of the will of the voters. As for those officers temporarily acting in a higher classification, Charter § 186, THIRD, states: "Any local Safety member of the Fire and Police Departments temporarily acting in a position in a higher rank during periods of absence of the incumbent or during a vacancy [5]6 TO: Andrew Green, Director of Finance Re: Safety Employees' Promotions & Higher Acting Pay April 21, 1992 Page 3 in the position for more than ten ( 10) consecutive working days or five consecutive shifts, shall receive the same salary for the higher rank to which he would be entitled, were he promoted to that rank during the period in which the employee is acting in the higher rank. " Thus, the officer temporarily acting in a higher classification, shall be paid at the step at which he/she would be paid if promoted, based on years of service to the department. The effect of this is that the City is required to pay safety employees "step to step, " or at the same step in the higher position that the officer was paid at in the classification from which he/she is being promoted. Respectfully submitted, c DIANE A N ROTH Deputy City Attorney Concur: JAMES F. PENMAN 44 7y/ s '�`d9Er?-1 C �'�.•2,' 1.-deep ity Attorney cc: Mayor Council Members City Clerk City Administrator Director of Personnel Civil Service Chief Examiner Chief of Police Fire Chief DCR:js[186Promo.Opn] F571 DER AR � Sep s' i CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN C/ty Attorney March 2, 1993 Opinion No. 93-4 TO: H. Doug Chandler, Civil Service Chic-f Examiner RE: Probation Period ISSUE You have asked three questions relative to the probation period of civil service employees which we have stated as follows: 1. If a civil service probationary employee is granted a leave of absence, vacation, is off duty because of an injury, or is temporarily acting in a higher class, is or may the probation period be extended for an equal period of time? 2. Although the Fire Safety MOU states the probationary period to be twelve months from date of hire, is this interpreted to mean that the employee must be evaluated for the total number of shifts ( 120) that a fire safety employee would work in a year to deem the probationary period complete? 3. If a Fire Fighter is promoted to Fire Engineer and is also on the list for Fire Captain, can thi;:, employee be temporarily assigned as a Fire Captain while still on probation as a Fire Engineer? CONCLUSION 1. There is no provision to extend the probationary period due to any kind of absence. 2. The language used must be understood to mean what it says. There is no basis to believe that twelve months means anything other than twelve months. DAB:km[PR0BATI0N.0PN] CITY HALL 300 NORTH 'D'STREET• SAN BERNARDINO, CALIFORNIA 92418 (714)384-5355 L 22 To H. Doug Chandler, Civil Service Chief Examiner Re Probation Period 3. As long as he is on the appropriate list, a probationary employee may be temporarily assigned to a higher classification. ANALYSIS The questions will be responded to in order. 1. In relation to the probationar- = period, Section 253 of the Charter of the City provides as foliows: "An appointment or promotion shall not be deemed complete until an applicable period of probation of not more than one year has elapsed. The probationer may be discharged or reduced at any time within said period upon the recommendation of the head of the department in which said probationer is employed with the approval of a majority of the Civil Service Board. Periods of probation shall be fixed by resolution of the Mayor and Common Council and procedures for and effective dates of discharges and reductions shall be adopted by the Civil Service Board in its rules and regulations. " The Civil Service Board has adopted rules which apply to the probationary period. Rule 500 provides, "Any appointment from an eligible or promotional list shall not be deemed complete until an initial applicable period of probation for the position, as determined and set forth in a resolution of the Mayor and Common Council, has elapsed. Such period of probation shall not be longer than one year, provided that the probationary period shall be for six months in the event an applicable period of probation has not been fixed by resolution of the Mayor and Common Council. Probationary service shall be subject to the provisions of Rules 500.1 through 500.3. " DAB:km[PROBATION.OPN] -2- To H. Doug Chandler, Civil Service Chief Examiner Re Probation Period Rule 500.1 sets forth the objectives of the probationary period: "The probationary period shall be regarded as part of the testing process and shall be utilized for observing closely the employee's work, for securing the most effective adjustment of a new employee to his position and for releasing any probationer whose performance does not meet the department head' s required standards of the work. " Rule 500.2 outlines the procedure for the removal of an employee during probation and Rule 500.3 provides that an employee who is released during probation after a promotion is reinstated to his or her former position. For General Unit employees, the current Memorandum of Understanding (MOU) negotiated pursuant to the Mayers-Mi 1 i as-Brown Act (Government Code 53500 et seq. ) provides in Section 3 of Article V1 (pg. 65) as follows: "All new or newly promoted employees must serve a 6 month probationary period, except for new employees hired into the following departments: police, personnel, fire, engineering, finance and all divisions of the City Administrator's office, all of which employees shall serve a 1 year probationary period. " The MOU for the Police Safety employees provides for a 12 month probation (Section 3 of Article VI - pg. 62) as does the Fire Safety employees MOU (Article 21, pg. 17) and the Mid-management MOU (Section 3 of Article VI - pg. 41 ) . Resolution No. 89-129 relating to Management/Confidential employees is silent on the subject. None of these provisions allow for the extension of the probationary period in the event of a leave of absence, vacation or any other absence from the position. There may be specific statutory provisions that relate to the probationary period (e.g. the requirement to complete any remaining DAB:km[PROBATION.OPN] -3- 60] To H. Doug Chandler, Civil Service Chief Examiner Re Probation Period probationary period after a military leave of absence - see Military and Veterans Code §395) , but absent such a statute the probation period is only that specified above. 2. Reading the Fire Safety employees' MOU is a matter of standard contract construction. The general rule is that every word in a contract should be given its ;just and proper meaning (Brickell v. Batchelder, 62 C 623; Neale v. Morrow, 150 C 414) . In addition, words that are not synonymous should not be construed as having been so used (Cordes v. Harding 27 CA 474) . As noted in the question, Article 21 of the MOU provides that " [t]he probationary period for positions in this unit shall be twelve months from the date of hire. " This is clear language. If the drafters had meant to say 120 shifts they could have easily done so. In fact, such terminology was used elsewhere in the MOU. (See Article 9 relating to holidays, Article 10 relating to vacations, and Article 11 relating to sick leave) . In fact, the term "shift" is defined in the document ( see page 2) . The conclusion must be that when the MOU provides for 12 months, it means exactly that. 3. Section 186 THIRD (b) of the Charter of the City of San Bernardino provides as follows: "Any local safety member of the Fire and Police Departments temporarily acting in a position in a higher rank during periods of absence of the incumbent or during a vacancy in the position for more than ten (10) consecutive working days or five consecutive shifts, shall receive the same salary for the higher rank to which he would be entitled, were he promoted to that rank during the period in which the employee is acting in the higher rank. The Chief of the department in which the assignment to the higher rank occurs shall certify as to the assignment and the period of time worked in the higher rank to validate entitlement to the salary of higher rank. " DAB:km[PROBATION.OPN] -4- 61 To H. Doug Chandler, Civil Service Chief Examiner Re Probation Period Then in pertinent part, Civil Service Rule 415 provides: "The Chief of the Fire . . . Department may assign for a period not to exceed 90 days any employee in his department to a position in a higher classification or rank during the absence of the incumbent thereof or during a vacancy in the position and he shall forward notice and certification of the assignment and the periods of time worked in the higher position to the Administrative Officers and the Civil Service Board or its Secretary. He shall assign a person from the names of those persons certified or an appropriate promotional or eligible list. . . . Such assignment may be extended by the Civil Service Board for additional periods of 90 days. Any employee who is assigned to the higher position for more than 10 consecutive working days or 5 consecutive shifts shall receive the same salary for the higher position to which he would be entitled were he promoted to such position during the period in which he is assigned thereto. The purpose of this Rule is to implement, interpret and clarify Section 186 THIRD: (b) of the Charter. " The effect of these provisions is very clear. When an employee is temporarily designated to act in a higher classification, he should be compensated commensurate with the job he is performing. There is nothing in the Charter, the Civil Service Rules or MOU which would restrict the temporary assignment DAB:km[PROBATION.0PN3 _5 D62 To . H. Doug Chandler, Civil Service Chief Examiner Re Probation Period of an employee who is on probation in one classification to another higher classification as long as he is on the appropriate promotional list. Respectfully submitted, DENNIS A. ARLOW Senior Assistant City Attorney Concur: JAMES F. PENMAN i y A torney cc: W.R. Holcomb, Mayor Council Members Rachel Clark, City Clerk David C. Kennedy, City Treasurer Shauna Clark, City Administrator All Department Heads DAB:km[PROBATION.OPN1 - 63 C 5p _ �e U K� CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attorney June 23, 1993 Opinion No. 93-13 TO: H. Doug Chandler, Civil Service Chief Examiner RE: Temporary Assignment to Higher Classification in Fire Department ISSUE You have asked the following question: How are promotional lists used for the purpose of temporary assignment to a higher classification in the Fire Department and may employees be denied such temporary assignments because of disciplinary action or poor performance? CONCLUSION The Charter, Civil Service Rules and the applicable Memorandum of Understanding govern this process. Certification to a higher position may be made in the case of a vacancy from individuals on a promotional or other eligible list. Payment at the higher compensation occurs only after 10 consecutive days or 5 consecutive shifts. The requirement of being on such lists may be waived by the Civil Service Commission. In urgency situations, such certifications may be made without resort to the lists but only for a period less than 10 consecutive days or 5 consecutive shifts and at no increase in compensation. Past practice in the selection process may control how such selections are made, but absent a demonstrable past practice, the Chief may base his selection on a review of the personnel file of the employee being considered. DAB:km[TEMPASS1.0PN1 CITY HALL F64� 300 NORTH `D'STREET - SAN BERNARDINO, CALIFORNIA 92418 (714) 384-5355 5f TO: H. Doug Chandler, Civil Service Chief Examiner RE: Temporary Assignment to Higher Classification in Fire Department ANALYSIS Section 186 THIRD (b) of the Charter of the City of San Bernardino provides as follows: "Any Local Safety member of the Fire and Police Departments temporarily acting in a position in a higher rank during periods of absence of the incumbent or during a vacancy in the position for more than ten ( 10) consecutive working days or five consecutive shifts, shall receive the same salary for the higher rank to which he would be entitled, were he promoted to that rank during the period in which the employee is acting in the higher rank. The Chief of the department in which the assignment to the higher rank occurs shall certify as to the assignment and the period of time worked in the higher rank to validate entitlement to the salary of the higher rank. " In addition, the City has adopted Civil Service Rule 415: "The Chief of the Fire or Police Department may assign for a period not to exceed 90 days any employee in his department to a position in a higher classification or rank during the absence of the incumbent thereof or during a vacancy in the position and he shall forward notice and certification of the assignment and the periods of time worked in the higher position to the Administrative Officer and the Civil Service Board or its Secretary. He shall assign a person from the names of those persons certified on an appropriate promotional or eligible list; provided that at the time of the initial assignment such a list exists for the position to which the assignment is made; provided further that such requirement may be waived by the Civil Service Board for good cause when there is evidence that it would cause hardship or danger to, or inefficiency in departmental operations or DAB:km[TEMPASSI.0PNJ -2- F�5j i TO: H. Doug Chandler, Civil Service Chief Examiner RE: Temporary Assignment to Higher Classification in Fire Department performance of duties. Such assignment may be extended by the Civil Service Board for additional periods of 90 days. Any employee who is assigned to the higher position for more than 10 consecutive working days or 5 consecutive shifts shall receive the same salary for the higher position to which he would be entitled were he promoted to such position during the period in which he is assigned thereto. An urgency assignment without additional salary benefits of an employee in the department whose name has not been certified on the appropriate promotional or eligible list may be made by the Chief for 10 consecutive working days or 5 consecutive shifts. Each assignment shall terminate upon a promotion or appointment to the position. The person to (SIC) the higher position shall. not acquire any advantage or right by reason of the assignment, except as hereinbefore set forth. The purpose of this Rule is to implement, interpret and clarify Section 186 THIRD: (b) of the Charter." Following negotiations between the employees' organization and the City, the parties generally enter into a Memorandum of Understanding (MOU) pursuant to the Meyers-Milias-Brown Act (Government Code 93500 et seq. ) . Following the expiration of the last MOU on July 1, 1992, the parties were unable to reach an agreement and on May 24, 1993, following an impasse hearing, an agreement was imposed on the employees by the Mayor and Council. In pertinent, part this "agreement" provides as follows: "Any Local Safety member of the Fire Department temporarily acting in a position in a higher rank . . . during [a] period of absence of the incumbent or during a vacancy in the position for more than ten consecutive working days or five consecutive shifts, shall receive the same salary for the higher rank to which he would be entitled, were he promoted to that rank during the period in which the employee is acting in the higher rank. The Fire Chief shall certify as to the assignment and the DAB:km[TEMPASSI.OPN] -3- 166 z TO: H. Doug Chandler, Civil Service Chief Examiner RE: Temporary Assignment to Higher Classification in Fire Department period of time worked in the higher rank to validate entitlement to the higher salary. " ( 1991-1992 Fire Safety Employees' MOU, Article 6. F. as amended and adopted for 1992-93 fiscal year by Resolution No. 93-157) These three enactments when read together are consistent on this issue. In order to be temporarily certified to a higher rank or class an employee must be on a promotional or other eligible list. Other than that requirement, there is no limitation on how the Chief selects such individuals. You have informed us that you are unaware of any past practice which relates to the selection process. Absent such a past practice, the employment record of the subject employees may be used as a basis for making such a decision. The requirement of being on the list may be waived by the Civil Service Board. In urgency situations, a certification to a higher rank or classification may be made but it is without additional compensation and only for 10 consecutive days or 5 consecutive shifts. In any event, payment at the higher rank or class is only made in the normal certification process when 10 consecutive days or 5 consecutive shifts have passed. Respectfully submitted, DENNIS A. B Opt Senior Assistant City Attorney Concur: JAMES F. PENMAN F� fP�i y Attorney c: Tom Minor, Mayor �- Council Members Rachel Clark, City Clerk David C. Kennedy, City Treasurer Shauna Clark, City Administrator All Department Heads DAB:km[TE"ASSI.0PN] -4- 7 I� �eF,KNpRU 1, CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attorney August 2, 1993 Opinion No. 93-16 TO: Barbara Dillon, Director of Personnel RE: Charter Section 186: Definition of "Salary" for the Purpose of Setting Safety Officers' Salaries ISSUE You have inquired whether, when computing safety officers' salaries based upon the salaries paid in comparable agencies pursuant to Charter Section 186, do you consider the 99t PERS contribution included in the compensation in the cities of Orange and Glendale to be part of "salary" for purposes of comparison. CONCLUSION The 9% increase in wages given to the safety employees in the cities of Orange and Glendale to reimburse them for their required 9% PERS contributions are benefits, not salary for the purpose of comparison under Charter S 186. FACTS Each year the City surveys Police and Fire salaries in comparably sized cities in California as part of the required procedure under Charter Section 186 for setting the salaries of San Bernardino Safety Employees. The employees' contribution to PERS for safety employees is 9% of "compensation earnable. " in the City of San Bernardino, police safety employees pay 2% of their own PERS and the City picks-up 7% as a fringe benefit; fire safety employees pay 1% and the City picks-up 8% as a fringe benefit. The portion of the employees' PERS contribution which is paid by the City may not be reported to PERS as "compensation" for the purpose of calculating the amount of retirement, and is not reported to the I.R.S. or State Franchise Tax Board as wages for tax purposes. The portion of San Bernardino safety officers' salary which they pay to PERS is considered wages CITY HALL (� 309 NORTH `D'STREET - SAN BERNARDINO, CALIFORNIA 92418 168 (714) 384-5355 w"u,4 . v TO: Barbara Dillon RE: Charter § 186: Definition of "Salary" for the Purpose of Setting Safety Officers ' Salaries and reported PERS, the I.R. S. and the State Franchise Tax Board as such. It has also always been considered "salary" for purposes of comparison under §186. Last year the City of Orange agreed to increase the salaries of police safety and police management employees by 9t in exchange for the employees' agreement to pay their own 9% PERS contribution out of their salaries, which had previously been paid by the city as a benefit. The City of Glendale entered into the same agreement with their fire and police safety/ management. This enables the amount to be reported to PERS as "compensation" and thus boosts the retirement of safety members. Both the cities of Orange and Glendale agreed to report the additional 9$ as "compensation earnable" to PERS for the purpose of setting the amount of retirement (as allowed by Government Code SS 20022(a) (6) and 20023).. Both cities agreed that the additional 9$ would be treated as deferred income for federal and state taxation purposes (pursuant to Internal Revenue Code 9 414(h)(2) ), whereby "employee contributions shall be tax deferred (not subject to taxation until time of constructive receipt) . " [City of Glendale Resolution No. 22506. ] In the City of Orange' s police MOU the 9% increase is not considered salary for the purposes of calculating payoffs for sick leave, floating holiday or vacation accruals, but it is included for payoff of overtime and compensatory time off accruals. In the City of Glendale's Fire and Police MOUs the additional 9% is specifically included in salary and compensation comparisons. The question that has now arisen is whether the City should consider the additional 9% paid in Orange and/or Glendale "base salary" for purposes of comparison pursuant to Charter Section 186. ANALYSIS This issue was litigated in San Bernardino Police Benefit Association v. City of San Bernardino, San Bernardino Superior Court, Case No. 206315 and 4th District Court of Appeal II, Case No. 4 Civil 29197. In that case, the Association contended that monies expended by comparable jurisdictions "(a) to pay on behalf of their employees all or a portion of retirement contributions required to be paid by those employees or (b) to reimburse said employees for all or a portion of those required retirement contributions, " should be considered salary for S 186 purposes. [Petition for Writ of Mandate, at p.7, lines 11-18, emphasis DCR [Salary3.186] 2 69 j TO: Barbara Dillon RE: Charter S 186: Definition of "Salary" for the Purpose of Setting Safety Officers' Salaries added. ] The SBPOA and the City reached a settlement of the San Bernardino Police Benefit Association v. City of San Bernardino lawsuit. The Agreement was set out in its entirety in the 1984- 1988 Police Safety Employees' MOU, Article 45, which states in pertinent part: [The Association filed suit number 206315, San Bernardino Police Benefit Association v. City of San Bernardino, in the Superior Court of the State of California, for the County of San Bernardino, on October 26, 1981, contending that contributions to the employee's share of PERS in comparable jurisdictions are salary and not fringe benefits for the purposes of Charter S 186. . In consideration of the agreements reached in this memorandum and particularly Article 11, the Association agrees to dismiss with prejudice action number 206315, and agrees not to institute or prosecute any action against the City alleging that the monetary value of any benefit is to be added to the bii-sesalary schedule of any comparable jurisdiction for the purpose of se ing salary ,pursuant to Section 186 of the City Charter. "a [Emphasis added. ] [This Agreement was reiterated in the 1988-1990 Police Safety MOU at Article VII, Section 6. 1 It should be noted that at the time the lawsuit was filed, San Bernardino police safety employees paid their own PERS contributions out of their salaries; commencing with that MOU, the City began to pay a portion of the employees' PERS contribution for police and fire safety. Y. The settlement reached in the litigation did not dispose of the ultimate issue of what is salary and what is a benefit. it To analyze this issue, a distinction must be made between reportable compensation" and "salary, "Y. " and we must define PERS contributions are based upon "Compensation" as defined in Government Code S 20022. Included are such things as the monetary value of living quarters; employers' payments to purchase an annuity; any amount deducted from wages for a deferred compensation plan or a 401(k) plan; special compensation such as holiday pay, educational incentives, hazard pay, shift differential, out of class pay, POST certificate incentives; deductions for flexible benefits plans; and 4850 pay. [Govt. Code S 20022 (a) . ] Subsection DCR [5alary3.186] 3 LII7 O r y TO: Barbara Dillon RE: Charter S 186: Definition of "Salary" for the Purpose of Setting Safety Officers' Salaries (b) excludes certain payments from "compensation, " among which are "employers' payments which are to be credited as employee contributions for benefits provided by [PERS] , or employers' payments which are to be credited to employee accounts in deferred compensation plans. " Safety officers in San Bernardino receive compensation in the form of POST certification incentive pay, paramedic certification incentive pay and uniform allowances upon which PERS contributions and retirement calculations are based, but which are not considered part of "base salary. " Thus, the fact that certain compensation is reported to PERS does not make it "salary" for comparison under 186. Looking at the history of S 186, it is immediately apparent that "salary" was not intended to be as inclusive as "compensation. " Prior to 1973 the relevant portion of S 186 provided: It . . monthly salaries of said employees shall be fixed . at an amount of not less than the average of the monthly salaries, including increased cost of living bonuses, and all other financial remuneration by whatever other name known, paid or approved for payment to employees of like or the most nearly comparable position of the Police and Fire Departments of the Cities of Riverside, South Gate, Burbank, Long Beach and Los Angeles . " In 1962, the Court of Appeal had said that S 186, as it was worded at that time, "expressly requires the city council, in determining the amount of salaries paid by the guide cities, to consider so called ' fringe benefits. '" [San Bernardino Fire and Police Protective League v. City of San Bernardino (1962) 199 Ca1.App.2d 401, 415. 1 In 1976, section 186 was amended to its present state, which requires: "The monthly salaries of Local Safety members of the San Bernardino Police and Fire Departments . . . shall be fixed . . . annually . . . . at the amount equal to the arithmetic average of the monthly salaries, paid or approved for payment to Local Safety members of like or most nearly comparable positions of the police and fire departments of ten cities of California with populations of between 100,000 and 250,000 as shown in the latest DCR ISalary3.1861 4 71 z' `t ' S TO: Barbara Dillon RE: Charter § 186: Definition of "Salary" for the Purpose of Setting Safety Officers' Salaries Annual Report of Financial Transactions of California Cities published by the State Controller. " Under the amendment, the degree of discretion given the City has been reduced. Under the original section, the City had to pay "not less than the average, " but the amended section requires salaries to be set "at the amount equal to" the average. Further, the language "including increased cost of living bonuses, and all other financial remuneration by whatever other name known" was entirely omitted. In discussing the recent history of § 186 in the more recent San Bernardino Police Benefit Association v. City of San Bernardino case, the Court of Appeal in 1983 found that: . .the people of San Bernardino desired a tighter control on these salaries. More to the point, these amendments show that salary was to take on a narrower definition. No longer would fringe benefits 'by whatever other name known' be included. " The Court left open the question of whether reimbursement by the city for payment of PERS by the employee constituted a benefit or salary, however, stating that that is a factual question not a question of law, as there was no law defining "salary" as it is used in 9 186. In 1984, the Mayor and Council, responding to the problem pointed out by the Court of having to analyze the salaries of other jurisdictions on a case by case basis, adopted Municipal Code Chapter 1.28. Section 1.28.020 codified the definition "salary" for Charter S 186 purposes as it had evolved by past practice: "Charter Section 186 Second, Article X, since its amendment in 1976, by administrative and legislative practice has consistently been interpreted in the manner that the phrase ' . . . . the monthly salaries, paid or approved for payment to local safety members of like or most nearly comparable positions of the police and fire departments of ten cities of California. . . ' , as used to determine the monthly salaries of local safety members of the San Bernardino Police and Fire Departments by arithmetic averaging refers to those monthly salaries set by resolution or motion of the legislative bodies of such ten cities setting forth salary plans consisting of money to be paid at various ranges and steps within the ranges for each position and which amounts the cities report to the United States Internal Revenue Service and the California Franchise Tax Board as wages or income. Any DCR [Salary3.186] 5 I . t r TO: Barbara Dillon RE: Charter S 186: Definition of "Salary" for the Purpose of Setting Safety Officers' Salaries compensation or remuneration paid or approved for payment to local safety members in such cities, regardless of how calculated, when paid or in what form, or however denominated, have not been included within 'monthly salaries' as that phrase is used in Charter Section 186 and are not 'monthly salaries' within the meaning of Charter Section 186. All such other forms of compensation or remuneration are fringe benefits which have been negotiated in good faith meet and confer sessions. " [Emphasis added. ] [City of San Bernardino Municipal Code S 1.28.020. 1 The question still remains whether PERS contributions are benefits or salary. In both the cities of Orange and Glendale the additional 9$ is specifically treated as deferred income for federal and state purposes (pursuant to Internal Revenue Code 414(h)(2) ) . internal Revenue Code S 414(h)(2) states: " in the case of any plan established by the government of any State where the contributions of employing units are designated as employee contributions but where any employing unit picks up the contributions, the contributions so picked up shall be treated as employer contributions [and not treated as taxable compensation] . " In the cases of Orange and Glendale, the employer is not picking up the contributions, but they are reporting those contributions to the IRS as if they are picking them up. Neither jurisdiction reports the 9$ to the I.R.S. or Franchise Tax Board as wages or income. Therefore, under the definition of salary found in Municipal Code S 1.28.020, the 9-% is not "salary" for S 186 purposes in either jurisdiction. The police officers have pointed out that in the Glendale MOu the additional 9$ is specifically included in all salary and compensation comparisons. This refers to Glendale's use of the compensation for their own salary surveys, as they cannot bind another jurisdiction as to how it might use the figures. It is the obvious intent of S 186 to "compare apples to apples, " in that it requires using "members of like or most nearly comparable positions of the police and fire departments of ten cities of California with populations of between 100,000 and 250, 000. " The amendment to S 186 which replaced the names of specific cities to be used for comparison (e.g. , Los Angeles) with cities closer in size to the City of San Bernardino is further DCR [Salary3.186] 6 TO: Barbara Dillon RE: Charter S 186: Definition of "Salary" for the Purpose of Setting Safety Officers' Salaries evidence of this intent. However, inasmuch as benefits and salary are routinely negotiated and traded to reach a complete compensation package that both sides can live with, it is impossible to determine when the "salary" of another jurisdiction actually includes some benefits. It is easy to determine whether a city is picking up the employees' PERS contributions, but it may not be as easy to determine whether a salary increase in another jurisdiction has been given up in exchange for better medical insurance or another non-taxable benefit. It is therefore not possible to truly compare "apples to apples" when talking about "salary. " We must therefore rely on the definition provided for us in Municipal Code § 1.28.020 if at all possible. The fact that Orange's and Glendale's 'resolutions specify that the 9% raise is not reported to the I.R.S. or the Franchise Tax Board as wages or income is dispositive. The 9% increases in wages in those jurisdictions are "benefits, " not "salary, " for comparison purposes under § 186. Respectfu subm d, DI E TRAM ROTH Deputy City Attorney Concur: JAMES F. PENMAN i cc: Tom Minor, Mayor Council Members Rachel Clark, City Clerk Shauna Clark, City Administrator Daniel A. Robbins, Chief of Police Will Wright, Fire Chief All Department Heads San Bernardino City Employees' Association San Bernardino Fire Fighters' Local 891 San Bernardino Police Officers' Association San Bernardino Public Employees' Association San Bernardino City Management Association DCR [Salary3.186) 7 7 C Rol N CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY Opinion No. 95-02 May 12, 1995 JAMES F. PENMAN City Attorney TO: Councilman Jerry Devlin RE: Recommendations of Management Audit of Police Department ISSUES A recent management audit of the Police Department by Ralph Anderson & Associates recommends creation of a non-sworn Services Division Manager to oversee the records, budgeting/payroll, communications (i.e. dispatch) and personnel and training functions of the Department. The new Services Division Manager would report directly to the Chief of Police. In your memorandum dated April 6, 1995, you ask (1) whether this reclassification would be in conflict with Charter Section 186 or other applicable law. In follow-up conversations you asked us to consider two additional issues arising out of the management audit, which are: (2) whether the position of Assistant Chief may be abolished without a charter amendment, and (3) whether it is legally possible for the Mayor and Common Council to delegate responsibility for overseeing operations of the Department to a city official other than the Mayor, as recommended by the audit. CONCLUSIONS 1. The City may not vest management of the Services Division with responsibility for overseeing the records operations of the Department in a non-sworn civilian manager without a charter amendment. ' 2. The position of Assistant Chief may not be abolished without a charter amendment. Further, lacking the power to abolish the position directly, the Mayor and Council may not do this indirectly by permanently leaving it vacant. 3. The charter specifically vests the Mayor and Common Council with the duty to manage and control the Police Department, and the charter makes the Mayor supervisor of the Chief of Police. This authority and responsibility may not be delegated to another official without a charter amendment. RJM:ms[Audi.t.Opn] CITY HALL 300 NORTH 'D'STREET• SAN BERNARDINO, CALIFORNIA 92418 (714)384-535 [7SI To: Councilman Jerry Devlin Re: Recommendations of Management Audit of Police Department Page 2 DISCUSSION A. Reorganization Of Services Division The Police Department is organized into three divisions -- Patrol, Investigations, and Services. Each division is managed by a sworn officer holding the rank of Captain. The Captains work under the supervision of the Assistant Chief and the Chief of Police. Presently, the Services Division is responsible for such functions as records management, budgeting and payroll, crime analysis, community programs (i.e. crime prevention) , personnel and training, and mall security. The recently-completed management audit of the Department by Ralph Anderson & Associates would maintain the same three divisions presently existing. However, with some shifting of functions from one division to another, the audit recommends that management of the Services Division be taken over by a non-sworn civilian whose duties would be limited to supervising records, budgeting and payroll, communications and personnel and training. Although not clear, we assume that all sworn positions would be removed from the division. Coupled with proposed elimination of the Assistant Chief's position, the Services Division Manager would work under the direct supervision of the Chief of Police. Charter Section 186 does more than just mandate a salary formula for the Police and Fire Departments. It states expressly that its purpose is to establish "a basic standard for fixing salaries, classifications, and working conditions" of employees of the Police and Fire Departments. The classification scheme consists of seven levels in each department (P1 through P7), with designated titles assigned to each classification. The explanatory text regarding the seven classification levels provides in relevant part: "The following classifications are hereby created in the Fire Department and Police Department of the City of San Bernardino, and the code numbers, titles, and salaries as hereinafter set forth are hereby established and fixed for such classes of positions . . . " The way the classifications and the positions are established reflects an understanding of the paramilitary structure of the two departments. There is an orderly progression of rank, responsibility and salary as one moves from a lower to higher classification level, and it is significant that the classification RJM:ms[Audit.OPn] - —I To: Councilman Jerry Devlin Re: Recommendations of Management Audit of Police Department Page 3 levels include department managers up to and including the rank of Chief. Thus, it is evident that by enacting charter section 186, the people have endorsed a basic structure for the organization and management of the departments from which the Mayor and Council may not deviate. This is underscored by the fact that the charter permits establishment of additional positions, but does not permit deletions. The relevant language states: "Additional titles may be established by the mayor and common council, but only titles for Local Safety members of the Police and Fire Departments shall be placed in one of the following classifications having the most nearly equal duties and responsibilities. Local Safety members of the Police and Fire Departments shall mean any local policemen or local firemen as defined under the provisions of the Public Employees Retirement System Law as specified in the California Government Code or amendments thereto. " The limitation placed on the Mayor and Council by this language is that they are forbidden to put any employees into a charter classification unless the person employed to fill it is a "local policeman" as defined in the Public Employees Retirement Law. In effect, this means that only sworn peace officers can fill one of the Pl through P7 positions. Critical to the present issue is the fact that while certain designated positions were taken out of the charter as a result of a February, 1973 amendment, the position of "Superintendent of records and Identification" was not deleted. A civilian manager with responsibility for overseeing the records operations of the Department, working under the direct supervision of the Chief of Police, cannot supplant a charter-mandated sworn position. As with any office or position created in the charter, it is not the prerogative of the Mayor and Common Council to abolish such office or position. Fresno County Employees ' Association v Fresno County ( 1966) 242 Cal.App.2d 828, 830-831, 51 Cal .Rptr. 841. f -is important to keep in mind that a charter bears the same relationship to legislative acts of the Mayor and Council as the state constitution bears to state statutes. Citizens for Responsible Behavior v. Superior Court ( 1991 ) 1 Cal.App. 4th 1013, 1034, 2 Cal.Rptr. 684. As a general constitutional principle, where a legislative body lacks power to do a thing directly, it cannot accomplish the same end by indirection. Legislature v. Deukmejian (1983) 34 Cal.3d 658, 668, 194 Cal.Rptr. 781. See, RJM:ms[Audit.Dpn] 7 To: Councilman Jerry Devlin Re: Recommendations of Management Audit of Police Department Page 4 also, Myers v. City Council of Pismo Beach ( 1966) 241 Cal.App.2d 237, 243, 50 Ca1.Rptr. 402. Hence, it is apparent that the Mayor and Council cannot effectively "abolish" a charter-mandated position by leaving it unfilled while vesting some or all of its duties in a non-sworn civilian. Therefore, the position of Services Division Manager, with responsibility for overseeing records, cannot be created in the absence of a charter amendment deleting the "Superintendent of Records and Identification" from the P5 classification. B. Proposal to Abolish Assistant Chief's Position For the same reasons discussed above, we conclude that the position of Assistant Chief may only be abolished by charter amendment. It is reasonable to assume that by creation of the position of Assistant Chief, the voters expressed their desire for an orderly succession of authority in case of the Chief' s absence. An orderly succession would be more difficult if the Chief's authority were assumed by rotation of the captains. We add that even though Charter Section 181 gives the Mayor and Common Council wide discretion in determining the number of employees within the Police Department, such discretion is expressly limited by Charter Section i86, and thus we believe that leaving the position of Assistant Chief permanently "vacant" would be unlawful under the charter. C. Supervision of Department by Official Other Than the Mayor The management study, on page seven, adopts the following view of the organizational setting of the city: "The Police Department is a part of a larger organization of the City of San Bernardino. The City's organization has the City Council [sic] as its legislative and policy- making body and the Mayor as the Chief Executive. With the exception of the Police Department, the Mayor is assisted in the management of the city organization by the City Administrator. The chart on Exhibit II-A shows the City organization structure including the Police Department. "The organization chart on the exhibit reflects the unique reporting relationship of the Police Department (Police Chief) . It is the only department (other than those headed by elected department heads) that reports RJM:ms(Audit.Opn] F78 To: Councilman Jerry Devlin Re: Recommendations of Management Audit of Police Department Page 5 directly to the Mayor. The other city departments report to the Mayor through the City Administrator. "' There is no legal basis for the auditors' assumptions about the organizational reporting structure of the City. Formalizing a "reporting relationship" between the Police Chief and any City official other than the Mayor would be in derogation of the duties imposed upon the Mayor in the charter. Under charter section 50, the Mayor is the chief executive of the City, and under section 52 he has "general supervision of all City officers elected or appointed, except councilmen. " The Mayor and Council may not delegate the Mayor's charter-mandated supervisorial duties to any other City official without a charter amendment. The pre-eminent treatise on municipal law states, "In the discharge of their duties the officers [of a municipality] cannot go beyond the law, nor delegate powers involving the exercise of judgment and discretion. " See, 3 McQuillan, Municipal Corporations, 512.126, pg. 579 (3d Ed. Rev. 1990) . The new "reporting relationship" recommended in the audit would violate this rule. Respectfully submitted, RICHARD J. R LO Concur: Sr. Assistan ity Attorney JAMES F. PENMAN O _ ty Attorney t cc: Tom Minor, Mayor Council Members Rachel Clark, City Clerk David C. Kennedy, City Treasurer Shauna Clark, City Administrator All Department Heads iA copy of the chart referred to in the foregoing passage is attached hereto marked Exhibit A. RJM:ms[Audit.opn] i I 79 Y C Y V L G r 41 a O Y V _ y V O sy i ■ a F 2 ` C Y g � 3� O W r _ {: V y� O ■ � Y Y � Y L r 1J u Y Y wG L s r age tolv u C I T Y O F W.O O 5an bernardino D 1111 O F F I C E O F T H E C I T Y A T T O R N E Y J A M E S F P E N M A N C 1 T Y A T T O R N E Y Opinion No. 97-1 May 27, 1997 TO: BARBARA DILLON, DIRECTOR OF PERSONNEL RE: CLASSIFICATION OF BATTALION CHIEFS,TRAINING OFFICER AND FIRE MARSHAL, FIRE DEPARTMENT ISSUE You have asked whether the classification of Battalion Chief in the Fire Department is a classified or unclassified position. You have also asked whether the Fire Marshal and Training Officer positions are classified or unclassified. CONCLUSION Pursuant to Charter §248,the position of Battalion Chief is in the classified category. The positions of Fire Marshal and Training Officer are arguably unclassified; however, we don't need to decide that here. The individuals currently serving in those positions are Battalion Chiefs and they remain as Battalion Chiefs regardless of the category (classified/unclassified) of the Fire Marshall and Training Officer positions. All Battalion Chiefs, including those individuals serving in the positions in question are classified employees. ANALYSIS Section 248 of the City of San Bernardino Charter divides service into two categories, classified and unclassified. The distinction becomes important because no employee in the classified service may be discharged or reduced in rank or compensation without an opportunity to be heard before the Civil Service Board. See, Charter §254. rPpRIID�E 3 0 0 N 0 R T H D S T R E E T . S A N B E R N A R D I N O lei MOO s81 C A L I F O R N I A 4 2 4 1 6 - 0 0 0 1 ( 0 0 9) 3 8 4 - 5 3 5 5 it TO: Barbara Dillon, Director of Personnel Re: Classification of Battalion Chiefs,Training Officer and Fire Marshal Page 2 The Charter defines unclassified service as including the following: (a) All officers elected by the people; (b) All officers appointed for a definite term; (c) All deputies and assistants of elective officers who hold officer during the pleasure of such elective officers; (d) The heads of departments, and the heads of divisions of departments and members of all appointive boards; (e) One secretary for each department. Currently,the Battalion Chiefs for the Fire Department are treated, and have been treated, as classified service positions, including the Battalion Chiefs who are currently serving as Fire Marshal and Training Officer. The Fire Marshal and Training Officer are assignments made by the Fire Chief. Pursuant to Resolution No. 96-342, a resolution which amends the basic compensation plan for employees of the Fire Department, the Training Officer and Fire Marshal are Battalion Chiefs who receive additional incentive pay for their assignments. The Battalion Chief's job description,approved by the Civil Service Board on July 28, 1992, provides: "Under general supervision, plans, organizes, supervises, and directs the work of fire fighters, fire engineers and fire captains; coordinates fire company activities; receives and responds to fire alarms and emergency calls; supervises and conducts fire inspection, prevention, and suppression training programs; and performs other related duties as required." Under the "Organizational Structure" portion of the Battalion Chief's job description, it is noted that "[t]he Battalion Chief is a supervisory position above the level of Fire Captain in the Fire Department. Works under the supervision of the Deputy Fire Chief. supervises fire fighting personnel and equipment." Among a Battalion Chief's representative duties are the following: "coordinates the activities of fire companies in fire fighting and preventative maintenance activities"; prepares and submits various reports to the Deputy Chief, such as []training . . . "; and "supervises and conducts fire inspection,prevention and suppression training programs." The job description for Drillmaster(Training Officer), approved by the Civil Service Board on February 23, 1982,provides: "Under general supervision plans and conducts a standardized fire drill program; develops a fire fighting training curriculum; instructs and examines fire fighting personnel in all stages of training." 82 i S TO: Barbara Dillon, Director of Personnel Re: Classification of Battalion Chiefs,Training Officer and Fire Marshal Page 3 "The Drillmaster supervises and administers the training program in the Fire Department. Works under the supervision of the Deputy Chief. Supervises subordinate personnel assigned to the training activity." There is no requirement that the Drillmaster be a Battalion Chief. The minimum qualifications for a Drillmaster are that the candidate have an A.A. degree, with a major in Fire Science, and a minimum of 2 years of service as a fire captain. The candidate must have a fire science limited service teaching credential or obtain one within one year of appointment. The job description for Fire Prevention Engineer, apparently used for the position of Fire Marshal, provides: "Under general supervision, plans and directs a continuous fire prevention inspection program of all industrial, commercial and residential properties; develops educational programs, information and training in fire prevention and fire safety for public and private individuals and groups; formulates and supervises the maintenance of fire prevention codes and ordinances and inspection records." (Note: The practice of renaming a position title, i.e., Fire Marshal instead of Fire Prevention Engineer, different from a title expressly stated in the Charter, without going to the voters first is questionable at best and may not be lawful. We do not decide that issue in this opinion, however.) "The Fire Prevention Engineer supervises and administers the fire prevention program in the Fire Department. Works under the supervision of the Deputy Chief Engineer. Supervises subordinate fire prevention personnel." There is no requirement that the Fire Prevention Engineer be a Battalion Chief. The Fire Prevention Engineer must have an A.A. degree and a minimum of 4 years of administrative experience as a fire Captain or above and a minimum of 2 years as a Fire Prevention Inspector or Assistant Fire Prevention Engineer or Fire Marshal. For the purposes of a salary survey under Charter Section 186, Battalion Chiefs are treated as a separate category from the Training Officer(who is designated a Division Chief) and the Fire Marshal(who is designated a Division Chief). There is no support for the proposition that a Battalion Chief is an unclassified position. They are not elected or appointed for a definite term. See, Charter Section 248(1)(a)(b). The Fire Chief is not an elective position,rather it is an appointive position. Therefore, Charter Section 248(1)(c) does not apply. They are not secretaries. See, Charter Section 248(1)(e). Battalion chiefs are not "heads of departments", nor are they "heads of divisions of departments" as contemplated by Charter Section 248(1)(d). They are given general supervisory [8]3 l TO: Barbara Dillon, Director of Personnel Re: Classification of Battalion Chiefs, Training Officer and Fire Marshal Page 4 authority, but report to the Deputy Fire Chief. They direct the work of fire fighters,fire engineers and fire captains on a company level. They do not head divisions of the department. It has been the past practice of the City of San Bernardino to treat Battalion Chiefs as classified positions. Currently,the positions of Training Officer and Fire Marshal are filled by individuals who are Battalion Chiefs. The Battalion Chiefs serving in these positions are receiving "incentive pay" to fill the positions. Arguably, the positions of Training Officer and Fire Marshal could be considered "head[s] of[a]division of a department." However, this unclassified position is filled at this time with classified employees. These individual employees must be treated as classified employees pursuant to Charter § 248. The positions of Training Officer and Fire Marshal might arguably be considered unclassified positions,but there is no reason to decide that issue here since both positions are held by Battalion Chiefs. The fact that classified employees have been appointed to the positions, in return for incentive pay, does not change the status of those classified employees. Respectfully bmitted, STA2R. ALDSTADT Deputy City Attorney Concur: JAMES F. PENMAN i�'y Attorney r / cc: Tom Minor, Mayor Council Members Rachel Clark, City Clerk David Kennedy,Treasurer Fred Wilson, Acting City Administrator Larry Pitzer,Fire Chief All Department Heads 84