HomeMy WebLinkAbout01-05-2009 Minutes
CITY OF SAN BERNARDINO
300 N. "D" Street
San Bernardino, CA 92418
Website: www.sbcity.org
Mayor Patrick J. Morris
Council Members:
Esther Estrada
Dennis J. Baxter
Tobin Brinker
4h Ward - Vacant
Chas Kelley
Rikke Van Johnson
Wendy McCammack
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MINUTES
MAYOR AND COMMON COUNCIL AND
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
JANUARY 5, 2009
COUNCIL CHAMBERS
The joint regular meeting of the Mayor and Common Council and Community
Development Commission of the City of San Bernardino was called to order by
Mayor/Chairman Morris at 1:34 p.m., Monday, January 5, 2009, in the Council
Chambers of City Hall, 300 North "D" Street, San Bernardino, California.
Roll Call
Present:
Mayor/Chairman Morris; Council Members/Commissioners Baxter,
Brinker, Kelley, Johnson, McCammack; City Attorney Penman, Interim
City Manager Weinberg, City Clerk Clark.
Absent:
Council Member/Commissioner Estrada.
Vacant:
Fourth Ward.
Council Member/Commissioner Estrada arrived at 1:53 p.m.
1. Closed Session
Pursuant to Government Code Section(s):
A. Conference with legal counsel - eXlstmg litigation - pursuant to
Government Code Section 54956.9(a):
RDA v. Alvarez - San Bernardino County Superior Court Case No.
SCVS 086091;
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Janet Allen v. City of San Bernardino - San Bernardino County Superior
Court Case No. CIVSS 804451;
City of San Bernardino Municipal Water Department v. The United
States Department of the Army - U.S. District Court Case Nos. CV 96-
8867 & CV 96-5205;
Abdullah, Ghassan N. v. City, et al. - San Bernardino County Superior
Court Case No. SCVSS 126706;
Adams, Deanna Helena Petrovna v. City, et al. - San Bernardino County
Superior Court Case No. SCVSS 126708;
Allen, Jamora, et al. v. City, et al. - San Bernardino County Superior
Court Case No. CIVSS 805915;
Alvarez, Jaime, et aI. v. City, et al. - United States District Court Case
No. CV-OO-03048 PA (Rcx);
Alvarez, Jaime, et al. (RDA v.) - San Bernardino County Superior
Court Case No. SCVSS 086091;
Batey, Jane, et al. v. City, et al. - San Bernardino County Superior
Court Case No. SCVSS 141503;
County of San Bernardino (City v.) - Los Angeles Superior Court Case
No. KC49711 "J";
Desrochers, Michael, Lowes, Steve v. City, et al. - United States
District Court Case No. EV06-l408 V AP (JCRx);
Desrochers, Michael, Lowes, Steve v. City, et al. - San Bernardino
County Superior Court Case No. CIVSS 708367;
Flores, Emelio S., et al. v. City of Highland, et al. - San Bernardino
County Superior Court Case No. CIVSS 700464;
Glander, Maria v. City, et al. - Los Angeles Superior Court Case No.
BC324026;
Golding, Justin Ryan v. City, et al. - San Bernardino County Superior
Court Case No. CIVSS 700791;
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Hearns, Kimberlyn v. City. et al. - United States District Court Case
No. EDCV03-01434 RT (SGLx);
Hearns, Kimberlyn v. City, et al. - United States District Court Case
No. CV05-04524 GHK (RZX);
Jackson, Dennis, et al. v. City, et al. - San Bernardino County Superior
Court Case No. CIVSS 800797;
Lopez, Jose Luis, Jr., et al. dba The Club (Poo. v.) - San Bernardino
County Superior Court Case No. SCVSS 134051;
Manta Management Corp. (Poo. v.) #1 - San Bernardino County
Superior Court Case No. SCV 18157;
Manta Management Corp. (Poo. v.) #2 - San Bernardino County
Superior Court Case No. SCVSS 117285;
Maravilla, Luisa v. Deanna Marie Crosby, et al. - San Bernardino
County Superior Court Case No. CIVSS 707097;
Montez, Rodolfo v. City of San Bernardino Municipal Water Dept., et
al. - San Bernardino County Superior Court Case No. CIVSS 701871;
Moore, Adrian Eugene v. City, et al. - United States Court Case No.
CVOI-03064 DDP (RZ);
Osias, Daniel, an ind., et al. (City v.) - San Bernardino County Superior
Court Case No. SCVSS 140090;
Pilcher, Est. Of Roy A., et al. (City v.) - San Bernardino County
Superior Court Case No. SCVSS 144328;
Redden, Deryl v. City, et al. - San Bernardino County Superior Court
Case No. SCVSS 144245;
Romero, Miguel, et al. v. City, et al. - San Bernardino County Superior
Court Case No. CIVSS 703673;
San Bernardino City Professional Firefighters, Local 891 v. City, et al. -
San Bernardino County Superior Court Case No. CIVSS 807685;
Soderbloom, Don v. City, et al. - DLSE State Case No. 4962;
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State of California ex reI. Nora Armenta v. James Jones, Co. - Los
Angeles Superior Court Case No. BC173487;
Wang, H. Roger, et al. v. Wal-Mart Real Estate Business Trust, et al. -
San Bernardino County Superior Court Case No. SCVSS 129158;
Watson, Zakyia, et al. v. City, et al. - San Bernardino County Superior
Court Case No. CIVSS 807970;
Weisenberger, Timothy, et al. v. State of California, et al. - San
Bernardino County Superior Court Case No. SCVSS 134901;
Zimmon, Garrett-Ind. Disability ReI. Application - OAH#2007080890.
B. Conference with legal counsel - anticipated litigation - significant
exposure to litigation - pursuant to subdivision (b) (I), (2), (3) (A-F) of
Government Code Section 54956.9:
Inland Communities Corp. v. City of San Bernardino (Paradise Hills)
California Aviation Services, Inc. v. City of San Bernardino
C. Conference with legal counsel - anticipated litigation - initiation of
litigation - pursuant to subdivision (c) of Government Code Section
54956.9:
City of San Bernardino v. California State University
D. Closed Session - personnel - pursuant to Government Code Section
54957.
E. Closed session with Chief of Police on matters posing a threat to the
security of public buildings or threat to the public's right of access to
public services or public facilities - pursuant to Government Code
Section 54957.
F. Conference with labor negotiator - pursuant to Government Code
Section 54957.6:
General Unit
Mid-Management Unit
Management/Confidential
G. Conference with real property negotiator - pursuant to Government Code
Section 54956.8.
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City Attorney Penman announced that the following additional cases would be
discussed in closed session:
Under Agenda Item lA, Existing Litigation:
Richard "Scott" Moss, et al. v. City of San Bernardino, et al. - United
States District Court Case No. EDCV 07-01027 SGL (OPx);
In Re Civil Service Appeal of Steve Lowes.
Under Agenda Item IB, Significant Exposure to Litigation:
2158 McKinley/Martin Luther King Middle School;
Agenda Item No. 11.
Following closed session, City Attorney Penman announced that Fire and Police
labor units were included in the discussion under Agenda Item IF, Conference
with Labor Negotiator.
Reading of Resolutions & Ordinances
Deputy City Clerk Hartzel read into the record the titles of all the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and Community
Development Commission.
Moment of Silence
Mayor Morris extended condolences to the family and requested a moment of silence in
memory of Monsignor Adolfo Chavez.
Invocation/Pledge of Allegiance
The invocation was given by Councilwoman Wendy McCarnmack. The pledge of
allegiance was led by Madison Tibke, a student at Anderson School.
2. Appointment - Wayne Hendrix - Board of Water Commissioners - Mayor
Morris
Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Baxter, that the appointment of Wayne Hendrix
to the Board of Water Commissioners, as requested by Mayor Morris, be
approved. The motion carried unanimously with the Fourth Ward vacant.
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3. Proclamations & Presentations
Mayor Morris presented a resolution of commendation to Aurora Mendoza, who
recently retired after devoting 40 years of dedicated service to the City Library.
Council Member/Commissioner Johnson presented certificates of recognition to
each member of the Hawks Football Team, who recently completed a season
where they were the San Bernardino City Champs, the Division Champs, the
Conference Champs, and the Mega-Bowl Champs, finishing the season with a
12-0 record and 8 shutouts.
4. Announcements
Announcements were made by the Mayor, members of the Common Council,
elected officials, and a representative from the Chamber of Commerce regarding
various civic, community, and chamber events and activities.
5. Waive Full Reading of Resolutions & Ordinances
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that full reading of the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and
Community Development Commission, be waived. The motion carried
unanimously with the Fourth Ward vacant.
6. Council Minutes
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that the minutes of the following meeting(s) of
the Mayor and Common Council/Community Development Commission of the
City of San Bernardino be approved as submitted in typewritten form:
November 17, 2008, and November 25, 2008. The motion carried
unanimously with the Fourth Ward vacant.
7. Claims & Payroll
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that the claims and payroll and the
authorization to issue warrants as listed in the memorandum dated December 18,
2008, from Barbara Pachon, Director of Finance, be approved. The motion
carried unanimously with the Fourth Ward vacant.
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8. Personnel Actions
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that the personnel actions, as submitted by the
Chief Examiner, dated December 19, 2008, in accordance with Civil Service
rules and Personnel policies adopted by the Mayor and Common Council of the
City of San Bernardino, be approved and ratified. The motion carried
unanimously with the Fourth Ward vacant.
9. Determination of Public Convenience or Necessity for a Type 20 Alcoholic
Beverage Control (ABC) license (Off-sale Beer & Wine) for the Union 76
service station located at 1950 South Waterman Avenue
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that the Mayor and Common Council
determine that the public convenience or necessity is served by the proposed
license; and direct the Development Services Department to send a letter to the
Department of Alcoholic Beverage Control to support issuance of a Type 20
ABC license for the Union 76 service station located at 1950 South Waterman
Avenue. The motion carried unanimously with the Fourth Ward vacant.
10. Item deleted
11. Ratification of the City Manager's Freeze on Hiring, Travel and Training
for Manager-Directed Departments
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the matter be tabled.
Council Member/Commissioner Baxter and Council Member/Commissioner
Brinker withdrew their motion to facilitate discussion.
A prolonged discussion ensued regarding interpretation of the language in the
City Charter relative to the duties and powers attributed to the City Manager
versus the duties and powers attributed to the Common Council; and more
specifically, whether the City Manager had the authority to place a freeze on
hiring, travel, and training for manager-directed departments, or whether this
decision was important enough to require a vote of the Council.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, stated that
insofar as safety personnel are concerned, no one has the right to issue a hiring
freeze order.
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Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the matter be tabled. The motion
carried. Ayes: Baxter, Brinker, Kelley, Johnson. Nays: Estrada,
McCammack. Vacant: Fourth Ward.
Council Members/Commissioners Estrada and McCarnmack requested that the
City Manager let the Council know exactly what this hiring freeze means and
requested a memorandum explicitly explaining the positions affected by the
freeze, the departments, and the total amount of dollar savings.
12. Council Committee Assignments
The following committee assignments were recommended by Mayor Pro Tem
Johnson:
Council Committees - Regnlar Meetings
Legislative Review Committee
Personnel Committee
Redevelopment Committee
Ways & Means Committee
Brinker, Ch., Johnson, McCammack
Estrada, Ch., Kelley, McCammack
Johnson, Ch., Baxter, Brinker
Kelley, Ch., Baxter, Brinker
Council Committees - At Call of Chairman
California Theatre Ad Hoc Committee Mayor, Estrada
CDBG Funding Review Ad Hoc Committee Estrada. Ch., Baxter
Grants Ad Hoc Committee Baxter, Ch., Estrada, Johnson
Fire Equipment Ad Hoc Committee McCammack, Ch., Kelley
Police Ad Hoc Committee Johnson, Ch., Kelley, McCammack
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that the Council Committee Assignments
recommended by Mayor Pro Tem Johnson, be approved. The motion carried.
Ayes: Baxter, Brinker, Kelley, Johnson. Nays: Estrada, McCammack.
Vacant: Fourth Ward.
13. Transfer $200,000 from the Reserved General Fund to the City Attorney's
budget as follows: $164,000 to Account No. 001-051-5503 and $36,000 to
Account No. 001-051-5177 (Continued from December 15, 2008)
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the Director of Finance be authorized and
directed to amend the FY 2008/2009 budget and appropriate $200,000 from the
Reserved General Fund to the City Attorney's budget as follows: $164,000 to
Account No. 001-051-5503 (Litigation - Outside Attorneys) and $36,000 to
Account No. 001-051-5177 (Litigation - Expense). The motion carried
unanimously with the Fourth Ward vacant.n
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14. National League of Cities Congress of Cities and Exposition Update -
Council Member Kelley (Continued from December 15, 2(08)
Council Member/Commissioner Kelley provided an overview of some of the
programs he attended and the three mobile tours he participated in, which were
provided by the city of Orlando, Florida.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that the Mayor and Common Council receive
and file the National League of Cities Congress of Cities and Exposition
Update. The motion carried unanimously with the Fourth Ward vacant.
COMMUNITY DEVELOPMENT COMMISSION
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada,
Baxter, Brinker, Kelley, Johnson, McCarnmack; Assistant City Attorney
Wilson, Economic Development Agency Interim Executive Director
Marzullo and Agency Counsel Sabo, City Clerk Clark.
Absent:
None.
Vacant:
Fourth Ward
R15. EDAW, Inc. - Presentation on the Open House Update on the San
Bernardino Downtown Core Vision/Action Plan (Central City North
Redevelopment Project Area)
Vaughn Davies of EDA W made a PowerPoint presentation regarding the San
Bernardino Downtown Vision Plan and distributed hard copies of the
Power Point materials to the Council and City officials.
John Fransen, a retail strategist who has joined with EDA W on this project,
made a brief oral presentation, stating that the role of his company is to be
supportive. He talked about the importance of retail to the project, but also
cautioned that the retail has to be paced appropriately.
Warner Hodgdon, 405 Arrowhead Road, San Bernardino, CA, stated that
Vaughn and his team have done a lot of work, and up to this point he thinks it
has all been worthwhile.
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Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the Community Development Commission
of the City of San Bernardino receive and file the PowerPoint Presentation!
Report by EDAW, Inc. The motion carried nnanimously with the Fourth
Ward vacant.
R16. Bryan A. Stirrat & Associates - Professional Services Agreement
RES. CDC/2009-1 - Resolution of the Community Development Commission
of the City of San Bernardino approving and authorizing the Interim
Executive Director of the Redevelopment Agency of the City of San
Bernardino ("Agency") to execute a Professional Services Agreement by
and between the Agency and Bryan A. Stirrat & Associates for Brownfields
inventory and prioritization/selection criteria for sites to receive future
environmental evaluation (the area bounded by Ninth Street to Mill Street
and Pepper Street to Tippecanoe Avenue).
Council Member/Commissioner Estrada expressed concern that the scope of
work was not definitive. She also asked to see the grant application that was
used to obtain the grant.
Council Member/Commissioner McCamrnack stated that from her
understanding of EPA, once the City/Agency identifies for them something that
needs remediation, the City/Agency is then mandated to enforce the remedial
work. She expressed concern that at some time in the past the City may have
approved some projects that at the time did not require the environmental studies
that they would today, and that the City will be on the hook for some of these
remediation efforts. She stated that although there are federal funds available
for this work, in some cases there aren't enough funds.
Council Member/Commissioner Estrada stated that she would be abstaining on
the basis that at this time she did not have enough information.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
CDC/2009-1 was adopted. Ayes: Baxter, Brinker, Kelley, Johnson. Nays:
McCammack. Abstentions: Estrada. Vacant: Fourth Ward.
R17. Assistance League of San Bernardino - Amendment No. 3 to the
Maintenance and Operation Contract (Central City North Redevelopment
Project Area)
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RES. CDC/2009-2 - Resolution of the Community Development Commission
of the City of San Bernardino approving and authorizing the Interim
Executive Director of the Redevelopment Agency of the City of San
Bernardino ("Agency") to execute Amendment No. 3 to the Maintenance
and Operation Contract by and between the Agency and the Assistance
League of San Bernardino (580 West 6th Street, San Bernardino - (Central
City North Redevelopment Project Area).
Council Member/Commissioner McCarnmack abstained because she serves on
the Board of the Assistance League.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
CDC/2009-2 was adopted. Ayes: Estrada, Baxter, Brinker, Kelley,
Johnson. Nays: None. Abstentions: McCammack. Vacant: Fourth
Ward.
RI8. Holiday Inn Project at Orange Show Road and South "E" Street -
Redevelopment Cooperation Agreement with the Inland Valley Development
Agency (IVDA Redevelopment Project Area)
RES. CDC/2009-3 - Resolution of the Community Development Commission
of the City of San Bernardino approving and authorizing the Interim
Executive Director of the Redevelopment Agency of the City of San
Bernardino ("Agency") to execute an agreement by and between the Agency
and the Inland Valley Development Agency ("IVDA") to transfer authority
to the Agency as to certain property proposed for development by BLBT
Enterprises, LLC ("Developer"), at Orange Show Road and South "E"
Street.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
CDC/2009-3 was adopted unanimously with the Fourth Ward vacant.
RI9. Cooperative Agreement among the Redevelopment Agency, the Inland
Valley Development Agency, the County of San Bernardino and the City of
San Bernardino for the acqnisition, development and rehabilitation of
properties located in the 3'd Street Corridor between Waterman Avenue and
Tippecanoe in the unincorporated portion of San Bernardino (IVDA
Redevelopment Project Area)
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Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the Mayor and Common Council of the
City of San Bernardino approve in concept a Cooperative Agreement by and
among the Redevelopment Agency of the City of San Bernardino ("Agency"),
the Inland Valley Development Agency ("IVDA"), the County of San
Bernardino and the City of San Bernardino for the acquisition, development and
rehabilitation of properties in the 3'd Street Corridor between Waterman Avenue
and Tippecanoe A venue in the unincorporated portion of the County of San
Bernardino. The motion carried unanimously with the Fourth Ward vacant.
City Attorney Penman advised that the recommended Motion B on the agenda
needed the word "concept" added in order to read, ". . . approve in concept a
Cooperative Agreement . . ."
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the Community Development Commission
of the City of San Bernardino approve in concept a Cooperative Agreement by
and among the Redevelopment Agency of the City of San Bernardino
("Agency"), the Inland Valley Development Agency ("IVDA"), the County of
San Bernardino and the City of San Bernardino for the acquisition, development
and rehabilitation of properties in the 3m Street Corridor between Waterman
A venue and Tippecanoe A venue in the unincorporated portion of the County of
San Bernardino. The motion carried unanimously with the Fourth Ward
vacant.
20. Public hearing - Impasse on San Bernardino Fire Department use of a 24-
day work period under the Fair Labor Standards Act pursuant to
Resolution No. 10584, Section 13
Note: Special Counsel James Odium replaced City Attorney Penman at the
dais.
Mayor/Chairman Morris opened the hearing.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to
Attorney Corey Glave that he would provide true and honest testimony.
Attorney Corey Glave, attending the hearing on behalf of the San Bernardino
City Professional Firefighters Union, stated that as the City was aware, they had
been litigating FLSA violations; and the City had now come and admitted to a
number of violations and the court had issued a summary judgment against the
City.
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Mr. Glave stated that Mr. Odium and the Fire Department would like to change
the work period from either what the Union contends is a 7-day work period, or
what the City contends is a 28-day work period (the City contends they have a
28-day work period, that it has been that way for 20 years, and now they would
like to change it to a 24-day work period).
He stated that contained in the Council backup materials there is a remark by
Linn Livingston, Director of Human Resources, that this is a meet and confer
item under Government Code Section 30500 et seq. He advised that the Union
has a binding MOU in place, and that no changes to an MOU can be made, or
should be made, without the consent of the Union. They also have a prevailing
benefits clause, and no prevailing benefits can be changed without consent of the
Union.
Attorney Glave stated that in this action Mr. Odium has indicated that the City
wants to meet with the Union, and they have offered to meet with the City with
the condition that the City signs an agreement that says these discussions are
informal and do not constitute meet and confer under the Meyers Milias Brown
Act. He stated this agreement is the same agreement that the City has entered
into on two previous occasions at least, including one in June that Mr. Penman
signed on behalf of the City when they met with the then City Manager and
representatives of the City.
Additionally, the Union had filed a lawsuit to seek an injunction to prevent the
City from re-opening the contract (the MOU) to force or impose changes.
Based on the legal opinion provided to the City Council from Mr. Penman,
along with his statements to the Union and his signing the agreement, that
portion of the lawsuit was dismissed.
Mr. Glave stated that the City now has a recommendation before the City
Council to impose changes, and they have tried to do it through what is called
impasse procedures. However, the impasse procedures through the
employee/employer relationship resolution do not govern this behavior. That
resolution only goes to formal meet and confer contract negotiations. It's after
the contract expires that the parties meet and confer in good faith, and they try
to come to a resolution. When they cannot, one party can declare impasse and
they usually go to mediation and then those changes can be imposed.
Mr. Glave advised that because they have a binding MOU, those changes cannot
be imposed at this time. The City would be violating the MOU and the
provisions contained therein to impose changes. Additionally, the impasse
procedure hasn't been properly followed, even if they were to do it. The
impasse procedure has specific requirements, and those requirements have not
been met, including an impasse letter setting forth positions. He stated that the
City sent a letter saying they did not have to set forth their positions anymore-
that they have already done that in other letters.
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Mr. Glave stated that additionally, the City unilaterally scheduled an impasse
meeting for December 18, and they indicate in the agenda package that the
Union did not show up; and in fact, the Union did not. In a document that has
not been presented as part of the packet, the Union informed the City, based on
his schedule during the holiday season, that he was not available until December
30. The City went ahead and had their meeting without them. They now come
to the Council saying, we've tried to meet with them, we're at impasse, they
didn't show for the impasse meeting, impose.
Mr. Glave asked that staffs recommendation be rejected, that the City's
negotiator be directed to meet with the Union informally, and that Mr. Penman
sign the same agreement that he agreed to before.
Special Counsel James Odium stated he would like to respond to a couple of
points Mr. Glave made. Mr. Giave indicated that with the existence of the
current binding MOU, the City cannot make any changes to the existing 28-day
work period and cannot go to a 24-day work period. However, the rule is that
if you have an MOU which sets forth a specific term; for example, how much a
person is going to be paid, then yes, the Union is not required to negotiate about
that because the contract governs it. The MOU that is in existence currently
says nothing about the 28-day work period and it says nothing about a 24-day
work period. So, in that sense, the terms of the existing MOU are not being
changed.
Mr. Odium advised that the system the City has been using to pay overtime to
its firemen, although it does use a 28-day work period, it doesn't do it
correctly-it doesn't calculate the overtime within that 28-day work period
correctly. It is the City's position that other sections of the MOU, which the
Union is relying on, which is called a prevailing benefits clause, does not cover
this situation either. The incorrect method that the City has been using to pay
the firemen cannot reasonably be considered a benefit, a privilege, or a working
condition that we are duty bound to maintain. We have to bring our system into
compliance with the Fair Labor Standards Act (FLSA), and nothing in the MOU
prevents us from doing that. He stated that he believed the staff report
explained why it is incumbent and necessary to go to a 24-day work period.
He stated that he thought that the materials that have been submitted to the
Council do layout the City's attempts to bring the Union to the bargaining table
to talk about it. He stated that the Union refused to do that unless we signed
what he believes is an unreasonable agreement. They want us to agree that 1)
these are not meet and confer, when we believe they have a duty to meet and
confer; and 2) the Union wants us to sign something saying that we will not
change anything unless they agree to it; and we can't go into negotiations giving
them basically the unilateral veto power over what we do after we meet and
confer. For those reasons what they have submitted to the City as a
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precondition of meeting, in his view, is unreasonable. He asked the Common
Council to adopt the motion directing implementation of the 24-day work period
forthwith.
Council Member/Commissioner Kelley asked Mr. Odium if the Union sent a
letter saying that they weren't available on the 18th of December-did the City of
San Bernardino, or his office receive a letter saying they were unavailable to
meet in any capacity, whether it was a meet and confer or whatever the case
was-did anyone receive a letter from the attorney representing 891.
Mr. Odium answered "yes," but stated that it was done after the December 18
meeting. It was noted that this particular piece of correspondence had not been
included in the backup materials.
Council Member/Commissioner Estrada asked Mr. Odium what, in his legal
opinion, supersedes here-the agreement, the meet and confer issue, or the
FLSA.
Mr. Odium replied that ultimately the FLSA is a federal statute to preempt state
law to the extent state law is inconsistent, so we start off by saying we have to
bring our procedures into compliance with the FLSA. The FLSA does not
speak to the issue of the relationship and the meet and confer duty we have with
the Union-that's an issue of state law. So, the FLSA says you need to fix this;
State law says, in doing so you probably have an obligation to at least offer to
meet and confer with the Union before you make this particular change; and the
Union has taken the position of the lawsuit that Mr. Glave alluded to.
Council Member/Commissioner Estrada stated that the key seemed to be in
interpretation-that we probably have a responsibility to meet and confer.
Mr. Odium stated that was his view and he has erred on the side of caution in
advising the City, since we probably have a duty to meet and confer on the 24-
day work period issue; and also to try to promote, to the extent we can, better
relations with the Union.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Johnson, that the hearing be closed; and that the 24-day
work period for City firefighters be implemented forthwith. The motion
resulted in a tie by the following vote: Ayes: Baxter, Brinker, Johnson.
Nays: Estrada, Kelley, McCammack.
Mayor/Chairman Morris broke the tie with a "yes" vote, and the motion
carried.
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Subsequently, later in the meeting, Mr. Odium addressed the Council, stating
that he had misspoken during the hearing, that in fact, Mr. Glave's letter stating
he was not available until December 30 was sent to him prior to the meeting on
December 18. He entered into the record the e-mail correspondence between
himself and Mr. Glave dated December 15. He stated that notwithstanding the
error he made before, he still believes there is an impasse, and that the impasse
procedure has been followed because the Union would not meet without the City
agreeing to conditions that he believes are unreasonable. Also, his
interpretation of what Mr. Glave had said to him in the e-mail was that the City
should talk about scheduling the mediation on a date different than December
18, and he wrote back to him the same day saying that they were not talking
about the mediation-they were talking about the impasse meeting, which is
something different than the mediation. He stated he never heard back from
Mr. Glave in response to this e-mail before December 18. So, he believed Mr.
Glave was talking about the mediation, not the impasse meeting.
21. Public Comments
Rafig Bey, deputized spokesman for Reverend Y ong Boom Lee, pastor of the
Well Mission Church at 1298 North "D" Street, submitted into the record and
orally summarized a letter from Reverend Lee to the City Council, notifying
them ". . . of this Motion for Consideration of the Applicant's Request for
Waiver of Fees as it relates to Developmental Permit-Type 1 & 2 required by
the City's Planning Department." Attached to the letter was a Memorandum of
Facts. Following a short discussion between Mr. Bey, the Mayor, members of
the Common Council, and the City Attorney, Mayor/Chairman Morris asked
Mark Weinberg, Interim City Manager, to review the matter and advise
Reverend Lee of what he needs to do. Council Member/Commissioner Baxter
asked to be kept in the loop since the church is in his ward.
Betty Jean Long, 854 N. Lugo Avenue, San Bernardino, CA, spoke regarding
where she lives, stating that people in the neighborhood owe her money.
Joseph Lujan, 1153 17th Street, San Bernardino, CA, thanked the City for
working with Los Padrinos, but questioned the decision of some of the Council
members not to use the services of Los Padrinos any longer.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, accused
Council Member Kelley of wrongdoing and conspiring against Los Padrinos.
Mr. Kelley refuted the comments made by Ms. Summers.
John Barbush, Sr. Vice President of Marketing & Development, American
Sports University, spoke regarding plans the university has to solve a plethora
of problems in the downtown area by creating a Sports A venue of the Stars and
turning the area into a tourist attraction.
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Hannah Hwang, Executive Director of Special Projects, American Sports
University, described the university's endeavor in more detail, stating that the
proposed project will be the first of its kind and will celebrate athletes
internationally. She advised that they do not need City funding, but they do
need the Council's support.
22. Adjournment
At 8:31 p.m. the meeting adjourned. The next joint regular meeting IS
scheduled for 1:30 p.m., Tuesday, January 20,2009.
RACHEL G. CLARK
City Clerk
By:
uc?~
Linda E. Hartzel
Deputy City Clerk
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