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HomeMy WebLinkAboutWHITMORE, JOHNSON & BOLANOS - Agreement for Legal Services - Labor Relations Consultant for MEA & MEO Negotiations 7/6/99 - 1999-07-06 /Pin/- RSA ash�ss- ��S4Y1!?t.G �99 Doha- R�lr�a✓. v Council/Agency Meeting Held: �0D•/D Deferred/Continued to: �ApLoved onditionally Approved J Denied it Clerk's Signature Council Meeting Date: 716199 Department 1D Number: AS 99-016 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: RAY SILVER, City AdministratoroW PREPARED BY: John Reekstin, Director of Administrative Service SUBJECT: Labor Relations Consultant i[Statement of Issue, Funding Source,Recommended Action,Alternative Actlon(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Should consultant assistance be retained to prepare for and conduct negotiations with MEO and MEA? Funding Source: Funding exists in the 1998-99 budget, account AA-ND-101-359. Recommended Action: 1. Approve the contract with the firm of Whitmore, Johnson and Bolanos for labor negotiations with MEA and MEO. 2. Waive the City's insurance requirements in the following areas: A. Commercial General Liabilitv -- to include a mandatory 30 day notice of cancellation and striking the words "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives". B. Workers Compensation — to include a mandatory 30 day notice of cancellation and striking the words ""endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives'. And: 3. Amend requirements under Professional Liability to allow a deductible not to exceed $25,000. 4. Contract will not be executed until current insurance certificates are provided. REQUEST FOR COUNCIL ACTION MEETING DATE: 716199 DEPARTMENT ID NUMBER: AS 99-016 Alternative Action(s): 1. Request additional proposals. 2. Do not retain a consulting firm for negotiations with MEA and MEO. Analysis: The current labor agreements with the City's two major miscellaneous employee organizations will expire on December 31, 1999. The City has always used a consultant from an outside firm that represents public employment to serve in the capacity of "Chief Negotiator" for the City. This consultant, in conjunction with the City Administrator, obtains policy direction from the City Council and works with staff in developing proposals from which labor agreements (Memorandums of Understanding) may be reached with City employee organizations. Numerous outside consulting firms have been utilized by the City in the past. The firm of Liebert, Cassidy and Frierson has been retained by the City to serve in this capacity since 1993. The upcoming expiration of labor agreements with the Municipal Employee Association (MEA) and the Management Employees Organization (MEO) offers the City the opportunity to gain expertise from another consulting firm regarding the City's labor relations issues. Requests for proposals were received from five consultants. After interviews were completed, the firm of Whitmore, Johnson and Bolanos was selected. The primary partner in the firm, Richard Whitmore, will perform as "Chief Negotiator" for the City in its discussions with MEO and MEA. Mr. Whitmore has represented management in public sector employment matters for thirty years. In addition to representing cities, counties and special districts in labor consultations, he has conducted training programs in labor relations for the League of California Cities, County Supervisors Association of California, South California Labor Relations Council, National Public Employee Labor Relations Association, and California Public Employee Labor Relations Association. Mr. Whitmore has agreed to handle negotiations at an hourly rate of $220, without any travel time, except within Orange County, and no charge for travel expenses. The hourly rate applies to time spent in preparing for and conducting negotiations, necessary meetings with staff, and meetings with the City Council and City Administrator. Environmental Status: Not applicable. Attachment(s1: NumberCity Clerk's Page . Description 1. Agreement with Whitmore, Johnson and Bolanos 2. Certificate of Insurance I Response to Request for Proposal from Whitmore, Johnson and Bolanos RCA ROUTING SHEET-Whitmore -2- 07/01/99 11:48 AM A CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK LETTER OF TRANSMITTAL OF ITEM APPROVED BY THE CITY COUNCIL/ REDEVELOPMENT AGENCY OF THE CITY OF.11U-NTP GTON BEACH DATE: r TO; j y Sv '� yi�c ATTENTION: i a ,�-e Name o3ori 7D � Ab?ihl �4(�dJ /�Cr�� DEPARTMENT: REGARDING: 1-4120e/ /t• 14C,•D/hS City,5t�t:,Zip DY�47i�A 7' — See Attached Action Agenda Item Date of Approval Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: Connie Brockway City Clerk Attachments: Action Agenda Page Agreement Bonds Insurance RCA Deed Other CC: 1 -Scx �aC / Name Dep men t / RCA Agreerre.^.r Insurance Other Narn3N De&pagment RCA Agreeaen, Insurance Other Name Department RCA AReer^ear Insurance Other Name Department RCA Agree nen, Insurance Other Risk Management Dept. Insurance Received by Name -Company Name- Date &F011owup'coverkr 1 Telephone:774636-5227) ATTACHMENT #1 AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND WHITMORE, JOHNSON & BOLANOS, A LAW CORPORATION, FOR LEGAL SERVICES Table of Contents Section Page 1 Employment 1 2 Duties 1 3 Fees 1 4 Reporting 2 5 Termination 2 6 Hold Harmless 2 7 Independent Contractor 2 8 Workers' Compensation 2 9 Insurance 3 10 Certificates of Insurance; Additional Insured 4 11 Delegation 5 12 Modification 5 13 City Employees and Officials 5 14 Immigration 5 15 Nondiscrimination . 5 16 Notices 5 17 Entire Agreement . 6 agree/1ega1A%'hitmr99-6130 99 AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND WHITMORE, JOHNSON & BOLANOS, A GENERAL PARTNERSHIP, FOR LEGAL SERVICES 4011 THIS AGREEMENT is made and entered into this � day of 'To/t 1999, by and between the CITY OF HUNTINGTON BEACH ("City") and WHITMORE, JOHNSON & BOLANOS, attorneys at law ("Legal Counsel"). WHEREAS, City desires representation in administrative hearings, arbitrations, court proceedings and negotiations, as designated by City; NOW, THEREFORE, the parties hereto mutually agree as follows: SECTION 1. Employment Law Representation. City hereby retains Legal Counsel and Legal Counsel hereby accepts such retainer to advise City. SECTION 2. Duties. Legal services shall include, but not be limited to, representation in administrative hearings, arbitrations, court proceedings and negotiations, as designated by City. SECTION 3. Fees and Responsible Attorney. Legal Counsel's hereby designates Richard S. Whitmore as the attorney primarily responsible for the services rendered hereunder. Primary responsibility for the work shall rest with Richard Whitmore. The billing rates for services under this Agreement shall be paid as set forth in Exhibit"A" attached hereto and made a part hereof. Payments shall be made upon approval by City of itemized invoices indicating the number of hours of services provided to the City during the period for which a claim for payment is being made. City shall pay and reimburse Legal Counsel reasonable and necessary expenses included in the course of performing such services, including document duplication and facsimiles. The City will not be charged for travel expenses or travel time. Unless specified on t agreellegallwhit=99-6130199 the Cost Schedule, all expenses will be billed at cost to the City. Where appropriate, Legal Counsel shall apportion such expenses with other clients that Legal Counsel represents. SECTION 4. Reporting. In performing legal services under this Agreement, Legal Counsel shall work under the direction and control of the City Attorney and shall not render any legal services without the advance concurrence of the City Attorney. No payment shall be authorized for legal services without the approval of the City Attorney. SECTION 5. Termination. This Agreement may be terminated by the City at any time by giving written notice to Legal Counsel with or without cause. In the event of termination, all finished and unfinished documents, pleadings, exhibits, reports, and evidence shall, at the option of the City, become its property and shall be delivered to it by Legal Counsel. SECTION 6. Hold Harmless. Legal Counsel shall defend, indemnify and hold harmless City, its officers, agents and employees, from and against any and all liability, judgments, damages, costs, losses, claims, including Workers' Compensation claims, and expenses resulting from Legal Counsel's negligence or other tortious conduct in the performance of this Agreement. SECTION 7. Independent Legal Counsel. Legal Counsel is, and shall be, acting at all times in the performance of this Agreement as an independent Legal Counsel herein and not as an employee of City. Legal Counsel shall secure at its expense and be responsible for any and all payment of income tax, social security, state disability insurance compensation, unemployment compensation, Workers' Compensation, and payroll deductions for Legal Counsel and its officers, agents and employees, and all business licenses, if any, in connection with the services to be performed hereunder. SECTION & Workers'_Compensation. Legal Counsel shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Labor Code and all amendments thereto; and all similar state or federal acts or laws applicable; and shall indemnify, defend and 2 agreeilegal/Whitmr99-6130199 hold harmless City from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including attorneys' fees and costs presented, brought or recovered against City, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by Legal Counsel under this Agreement. Legal Counsel shall obtain and furnish evidence to City of maintenance of statutory workers' compensation insurance and employers' liability in an amount of not less than $100,000 bodily injury by accident, each occurrence, $100,000 bodily injury by disease, each employee, and $250,000 bodily injury by disease, policy limit. SECTION 9. Insurance. In addition to the workers' compensation insurance and Legal Counsel's covenant to indemnify City, Legal Counsel shall obtain and furnish to City the following insurance policies covering their legal services unless waived by the City Council and/or City Administrator: A. General Liability Insurance. A policy of general public liability insurance, including motor vehicle coverage covering the legal services. Said policy shall indemnify Legal Counsel, its officers, agents and employees, while acting within the scope of their duties, against any and all claims arising out of or in connection with the legal services, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of$1,000,000 per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than $1,000,000. Said policy shall name City, its officers, and employees as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the legal services shall be deemed excess coverage and that Legal Counsel's insurance shall be primary. 3 agree/legal,'Whi=99-6130/99 B. Professional Liability insurance. Legal Counsel shall furnish a professional liability insurance policy covering the work performed by it hereunder. Said policy shall provide coverage for Legal Counsel's professional liability in an amount not less than $1,000,000 per claim. A claims made policy shall be acceptable. Under no circumstances shall said above-mentioned insurance contain a self-insured retention, or a "deductible" or any other similar form of limitation on the required coverage in an amount not more than $25,000.00. SECTION 10. Certificates of Insurance; Additional„Insured. Unless waived by the City Administrator prior to commencing performance of the work hereunder, Legal Counsel shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; said certificates shall 1. provide the name and policy number of each carrier and policy; 2. shall state that the policy is currently in force; and 3. shall promise to provide that such policies will not be canceled or modified without thirty (30) days' prior written notice to City. Legal Counsel shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by City. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of City by Legal Counsel under the Agreement. City or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. Legal Counsel shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement of Legal Counsel's insurance policies, naming the City, its officers and employees as Additional Insureds shall be provided to the City Attorney for approval prior to any payment hereunder. 4 agree.'1ega1AVh itmr99-7i 1 99 SECTION 11. Delegation. This Agreement is a personal services agreement, and the services provided hereunder shall not be performed by or delegated to any person or entity other than Legal Counsel without the express prior written approval of the City Attorney and City Administrator. SECTION 12. Modification. No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. SECTION 13. City Employees and Officials. Legal Counsel shall not employ any City official or any regular City employee in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement in violation of California Government Code Sections 1090, et seq. SECTION 14. Immigration. Legal Counsel shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of 8 U.S.C. § 1324a regarding employment verification. SECTION 15. Nondiscrimination. Legal Counsel agrees not to discriminate against any person or class of persons by reason of sex, age, race, color, creed, physical handicap, of national origin in employment practices and in the activities conducted pursuant to this Agreement, in accordance with Government Code § 19702. SECTION 16. Notices. Any notices or special instructions required to be given in writing under this Agreement shall be given either by personal delivery to Legal Counsel or to the City Attorney as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Services, addressed as follows: 5 agreclegal" him-99-6130199 TO CITY: TO LEGAL COUNSEL Ray Silver, City Administrator Richard S. Whitmore, Esq. City of Huntington Beach Whitmore, Johnson & Bolanos 2000 Main Street 2570 W. El Camino Real, Suite 600 Post Office Box 190 Mountain View, CA 94040 Huntington Beach, CA 92648 Telephone: (714) 536-5575 (415) 941-9333 Facsimile: (714) 536-5233 (415) 941-9476 SECTION 17. Entire Agreement. This Agreement contains the entire agreement between the parties respecting the subject matter of this Agreement and supersedes all prior understandings and agreements, whether oral or in writing. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first above written. WHITMORE, JOHNSON & BOLANOS CITY OF HUNTINGTON BEACH, a general.corporation a municipal corporation of the �',$9 State of ornia By: Richard S. VAitmore Mayor Its: (circle one)Chairman/Preside Partner ATTEST: City Clerk Gam- l7 �i ter-95' INITIATED, REVIEWED AND APPROVED: APPROVED AS TO FORM: YL�.LN City Adwhistrator City Attorney 5'_n�� 6 agreellegal?Whilmr99-6'30/99 1. PUBLIC AGENCY FEE SCHEDULE (Hourly Rates) Partners $175.00 - $260.00 Associates $135.00 - $175.00 Graduate Legal Assistants $110.00 Law Clerks $ 95.00 Paralegals S 70.00 IL COST SCHEDULE 1. Photocopies $ 0.15 per copy 2. Facsimile Transmittal $ 1.50 per page EXHIBIT A ATTACHMENT #2 cfid� 469), DATE MMIDIDNY) ACORM ..CERTIFICATE OF LIABIUTY:INSURANCrmff z4 . p7/,4/99 PRODUCER n e%x THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Thoits Insurance Service, Inc. 4 � ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 57-555930-AP 6�D./u uJ/� HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR P.O. Box 33015 n - 1 FALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. San Antonio TX 78265.3015 /*pp�d� 7/(A/4? I COMPANIES AFFORDING COVERAGE 7 4^o-/ 6"wFt 40 COMPANY Hartford Casualty Ins Co Phone No. 800.457.2379 Fax No.210.732-3593�Senr INSURED COMPANY B COMPANY Whitmore, Johnson & Bolanos C 2570 West E1 Camino Real COMPANY Mountain View CA 94040 I D COVERAGES .. :=... .... . . . . . .. ._. ..... . .. .. .. . : THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED,NOTWI'rHSTANDING ANY REQUIREMENT.TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. POLICY EFFECTIVE POLICY EXPIRATION LTOR TYPE OF INSURANCE I POLICY NUMBER DATE(MMIDDIYY) DATE(MM/DOIYY) LIMITS GENERAL LIABILITY GENERALAGGREGATE I S 4000000 A X COMMERCIALGENERALLIABILITY 57SBALK1383 05/07/99 05/07/00 PRODUCTS-COMPiOPAGO s 4000000 CLAIMS MADE LXI OCCUR PERSONAL&ADV INJURY S 2000000 j !OWNER'S&CONTRACTOR'S PROT EACH OCCURRENCE S 2000000 ! FIRE DAMAGE(Any one fire) Is 300000 ^I MED EXP{Any one person) I S 10000 AUTOMOBILE LIABILITY j A _ ANY AUTO 57SBALK1383 05/07/99 05/07/00 COMBINED SINGLE LIMIT S 2000000 A_L OWNED AUTOS BODILY INJURY SCHEDULED AUTOS I (Per person) c X i HIRED AUTOS BODILY INJURY X NON-OWNED AUTOS {Per acc-Rend $ PROPERTY DAMAGE S GARAGE LIABILITY AUTO ONLY-EA ACCIDENT IS ANY AUTO I ;OTHER THAN AUTO ONLY- EACH ACCIDENT S AGGREGATE S EXCESS LIABILITY EACH OCCURRENCE S 1000000 A X UMBRELLA FORM 57SBALK1383 05/07/99 05/07/00 AGGREGATE S OTHER THAN UMBRELLA FORM S WORKERS COMPENSATION AND T' TA " ORY LIMITS ERR EMPLOYERS'LIABILITY EL EACH ACCIDENT 3 THE PROPRIETOR! INCL EL DISEASE-POLICY LIMIT I S PARTNERS..EXECUTIVE OFFICERS ARE: R EXCL ti ! EL DISEASE-EA EMPLOYEE 15 OTHER DESCRIPTION OFOPERATIONSILOCATIONSIYEHICLESISPECIAL ITEMS r... + , f T' orney Certifi tto Ho d r i named ad%iona insured at. t r appear. Excep or 0 day Non-�aymen Any questi ns 1� H - P-2379. CERTIFICATE-HOLDER ::< ::.: :.::CANCELLATION . .. . .... ...... . ... CITY-1 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City of Huntington Beach EXPIRATION DATE THEREOF,THE ISSUING COMPANY WILL ENDEAVOR TO MAIL Attn: Gail Hutton 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. City Attorney 2000 Main Street BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY Huntington Beach CA 92648 OF ANY KIND UPON THE COMPANY,ITS AGENTS OR REPRESENTATIVES. AUTH RE` NTATIVE .P I[-� ACORD 25-S(1195) A RD CORPORATION 1988 �i� { 07/02 D99 PRODUCER Art Hollingsworth Ins AgeACy THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION r 101 Golf Caurse Drive, #211 ONLY AND CONFIrRS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Rohnert Park, CA 94928 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. License 0352964 L74; e/Glt COMPANIES AFFORDING COVERAGE F 1 e (.�T7 600• D COMPANY /- A Villanova Insurance C an ENSURED Whitmore, Jo on & Bolanos ./r my Attorneys at Law B 2570 W. El Camino Real, #600 COMPANY Mountain View, CA 94040 c + COMPANY - — --- I D TH;S IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED~BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT To ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO {— TYPE OF INSURANCE POLICYNUMBER POLICY EFFECTIVE IPOLCYEXPIRATION LIMITS LTR I DATE(MMIDDAN) I DATE(MMMONY) 13ENERA-UABIUTY - GENERALAGGREGATE I f I COMMERCIAL GENERAL LLAMU- I PRODUC'S-COMPIOP AGG j CLAIMS MAZE E.00CJR I PERSONAL&ADVINJURY I$ (3IWNER'S S CONTRACTOR'S PROP f EACH OCCURRENCE S 1l FIRE DAMAGE(Any am Fn) _ MED EXP my ore porwn) j AUUTTCMOOiLE LIABILITY T ' i I ANv AUTD I i COMBINED SINGLE LIMIT I S ~��ALL OWNE3AlfTp5 , BODILY Y1URY I S S,^,HkDULED A..TOS I II (Per Perkin) ItIREO AUTOS I] BODILY INJURYs I,NO%HYMNED AUTOS I IPeretc�lenQ i I I � IPROPERTY DAMAGE S �'G�AAAQE IJA&ILiTM' I AUTO ONLY-5A AMDEN T S I I ANY AUTO OTHER THAN AUTO ONLY. .: EACH ACCIQEHT j AGQREOA E $ EXCESSLJABILTY EACH OCCJRRENCE i UMBRE-iLA FORM AOpRE4ATE j OTHER TRAY UMBREL-A=ORM I I S n wQRP_es_CMrr-:fv8ATI0N AND -WC2-12 0 5 4 5 6 ; 0 7;01/9 9 0 7 01/O nEA . EMPLOYERS LABILITY ....- ELEACnACCIDENT Is 1000000 r1E PROPRIETM X INCL EL DISEASE-POLICY LIMIT $ 1000000 PARTNER&EXECLITIV'e OFFICERS ARE: EXCL FL AISEASE•EA EMPLOYEE S 1000000 OTHER {LI1 n,it;' .ice, AS OFORK3 TQN C];TY ATTORN Y 1 DESCRIPTION OF OPERATIONSILOCATIONSIVENICLES,'SPECIAL ITEMS y D yu City t Orney �ERTIFICRT�130LEiEi� } SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City of Huntington Beach WIRATION DATE THEREOF, THE 18SUINO COMPANY WILL-9*15� MAIL Attention: Gall Hut ton 10 DAYS wRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, City Attorney If 2000 Main Street or MY IOND 1114 -REPRO OR REPRESEIRAZ ES. Post Office Box 190 AUTHORIZEDREv Huntington Beach, CA 92648 Art Hollin a :'�t>RPa�riai�-tsBs, Clie t : 6957 WHITMJOHN -" AcOR& CERTIFICAr= OF LIABILITY INSUF��`ACE 07/`14'/i 9 PRODUCER g;' ,Oleo�• THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Dealey, Renton & Associates . `�" ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE P. O. Box 12675 f- AEG HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Oakland, CA 9 4 6 0 4-2 6 7 5 /yv' 60D.10 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 510 4 6 5-3 0 9 Q /7PPYv✓�� 9 INSURERS AFFORDING COVERAGE INSURED — — sr9RL1Fr1 o INSURER A:North land Insurance Co. Whitmore, Johnson & Bolanos A3senr INSURER B: 2570 West El Camino Real, Suite 600 INSURERC: Mountain View, CA 94040 INSURER D: I rNSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSRLTR. TYPE OF INSURANCE POLICY NUMBER POLICY ATE EFFECTIVE POLICYEXPIRATIONI LIMITS GENERAL LIABILITY I l EACH OCCURRENCE I$ COMMERCIAL GENERAL LIABILITY ; I FIRE DAMAGE(Any one fire'S CLAIMSMADEF] OCCURI i ME 0 EXP(Any ona person) 13 I I PERSONAL 3 ADV IN.,URY S _ iGENERALA0 ORE 0ATE S 'GENL AGGREGATE Li MIT APPL!ESPER: I PRODUCTS-CO MPIOPAGG S F� _ POLICY- JEC I LOC AUTOMOBILE LIABILITY COMBINED5INGLEL:MIT S ANY AUTO (Ea accioant) ALL OWNED AUTOS BODILY IN.;URY I SCHEDULED AUTOS (Per parson) $ HIRED AUTOS -- BODILY INJURY $ _ %ON-CWNE•0AUTOS (Par accicent) H PROPERTY DAMAGE IS T, (Paracclaent) GARAGE LIABILITY �AUTOONLY-EA ACCIDENT S ANY AUTO EA ACC !I __ OTHER THAN! AUTO ONLY: AGG S EXCESS LIABILITY EACH OCCURRENCE S j� OCCUR CLAIMS MADE �.Y' city AGGREGATE Is i Y S HDEDUCTIBLE S I RETEA4T1CN S S WORKERS COMPENSATION AND TORY WC STATU- - OTH- EMPLOYERS'LIABILITY i IE.L.'cACHACCIDENT I S .E.L.DISEASE-EAEMPLOYEE S IE.L.0ISEASE-POLICY,.M1T S A iOTHERLawyers Prot EF000352 07/01/99 07/01/001 $2, 000, 000/$2, 000, 000 I DESCRIPTION OF OPERATIONSILOCATIONSIVEHICLESIEXCLUSIONS ADDED BY EN DORSEMENTISPECIAL PROVISIONS CERTIFICATE HOLDER AODmONALINSURED•INSURER LETTER: CANCELLATION SHIDU LD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCE LIED BEFORE THE EXPIRATION City of Huntington Beach DATETHEREOF,THE ISSUING INSURER WILL&EIRRMYNOMAIL3_Q—DAYSWRITTEN Mall Hutton City Attorney, 2000 NOTICETO THE CERTIFICATE HOLDER NAMED TOTHE LEFT,B)MDDMj X Main Street Huntington Beach, CA 92648 AUTHORIZED REPRESENTATIV ACORD25-S(7/97)1 Of 1 #S13857/M13856 DLE 0 ACORD CORPORATION 1988 Uf y P 'GTDH BEACH. CA i�;i� ti''+ � 9 .,fir•# ��� 32 -'� 19q9 RL 20 COY AT ORNE'Y HUN s IPGTON GEA CH 5 l- v ATTACHMENT #3 ' ' WHIT,AORE, JOHNSON & BOLANOS WJ&B Richard S. VVII truore Jack W HL:,-,Ihec, Janice E. ioorsion Ernest m. %u.',is ra C. r R:c-ia rc 1 .3 o',-,r os F:lc-e:i S. !D-Z:w cyn".11a ;. 0 Nei:l Dehora-i G. Leon April 28, 1999 imichael N. V%Iestheinier Katimr. i. lrixke The City of Huntington Beach Administration Services Department Attention: Personnel Director 2000 Main Street - Huntington Beach, California 92648 Re: Request for Proposal Dear Sir or Madam: Thank you very much for contacting WJ&B. about the possibility of serving as "Chief Negotiator" for upcoming labor negotiations. We are very interested in providing the services you describe and submit this proposal in response to your request. 1 A. The name and address of the firm is Whitmore, Johnson & Bolanos, 2570 W. El Camino Real, Suite 600, Mountain View, California 94040. The contact person handling this proposal is Judy Jensen and her telephone number is (650) 941-9333. B. The history of WJ&B, including date of formation, background of the partners, and our experience in labor relations/negotiations on behalf of public agencies is described in Tab A. C. The individual who we propose act as Chief Negotiator is Richard S. Whitmore. His background and experience is reflected in Tab B. Mr. Whitmore is available during the months preceding the expiration of the contracts in question (December 31, 1999) and presently has no other negotiations scheduled during that time period. Mr. Whitmore has provided representation to the City of Huntington Beach in the past (as has another partner of the firm, Cynthia J. O'Neill). Our firm is organized'to allow for support of the person who acts as Chief Negotiator in the form of research backup, language drafting, compiling of survey data and word processing. Our experience with the cities we have represented in negotiations in the past that much of this "support" work can more efficiently be done by City staff and we are very willing to discuss the allocation of such work that best suits the needs of the City. 2570 lV. El Camino Real. SL;ite 600 * Mountain View, CA 9-1()-;0 e 650-9-11-9333 a 800-585-4529 * FAX 630-9-1-9-4.6 1 ' Personnel Director, City of Huntington Beach Re: $ee,esi t for Proposal April 28, 1999 Page 2 1 D. No one other than Mr. Whitmore would be directly involved in the actual negotiations. Others who could work with Mr. Whitmore might include his partner Cynthia O'Neill, associate attorney Jack W. Hughes, paralegals Sonja Eriksson and Basil Robledo, and/or legal secretary Lori O'Dell. E. A list of our firm's public sector and other clients is attached at Tab C. Specific references are listed in Tab D. Mr. Whitmore has represented cities in labor negotiations since 1970 and has negotiated over 100 memoranda ' of understanding. In the last two years, he has been Chief Negotiator for the following agencies: San Diego Unified Port District ' Contact: Bruce Hollingsworth Dicedar of Admintistsative Serqices Phone: 619-686-6212 City of Mountain View Contact: Kevin Duggan City Manager Phone: 650-903-6301 ' San Diego Superior Court Contact: Karol Plaskon Director of Personnel Services Phone: 619-531-3351 City of Escondido Contact: Jack Anderson Deputy City Manager ' Phone: 760-741-4631 1 ' Personnel Director, City of Huntington Beach Re: April 26, 1999 Page 3 1 ' F. We typically charge by the hour when handling negotiations. Mr. Whitmore's hourly rate is $220. Other rates are reflected in our standard form of fee agreement (see attachment to Tab E). We propose that there be no charge for travel time, except within Orange County, and no charge for travel expenses. The hourly rate would apply to time spent in preparing for and conducting negotiations, necessary meetings with staff, meetings with City ' Council and such other work as may be directed by the City. Although we do not normally do so, we would be willing to discuss a maximum amount for negotiations, but we would need more information about the history of ' negotiations with the two employee groups, what is anticipated in the upcoming negotiations and other pertinent information. ' We have forwarded to our insurance carriers for their review the information provided by the City. As of this writing, we have not received a response. ' I hope this letter and the attachments are responsive to your request. Please feel free to contact the undersigned if there are any questions or if we can provide any further ' information in support of our proposal. Thank you again for contacting Whitmore, Johnson & Bolanos. Very truly yours, ' WHITMORE, JOHNSON & BOLANOS By: Janice E. Johnson ' Managing Partner JEJIjj ' Attachments Huntington Beach Proposal 1 1 WHITMORE, JOHNSON & BOLANOS WI&BN T T 0 R N E v S A r L A Richarc S. � hitmo:e I�ck W. I iu�he< la6ce E. Iriw;0-i Ernest M. 11a'aS:rF,7 R'chara C. 36'aro< Eileen S. Dizon ' Cvnthia J. O Nei!i Dei)orah G. Leon Michael N. Westheimer OF COU`5EL Kathryn 1. 3L.rke FIRM BACKGROUND ' The law firm of Whitmore, Johnson & Bolanos was founded in July 1991. With a primary focus on providing legal representation to public agencies in the areas of personnel, ' employment, labor relations, school and municipal law, the attorneys of Whitmore, Johnson & Bolanos are dedicated to assisting public sector employers in the development of successful and cooperative employer-employee relations. Our clients benefit from over 70 years of collective ' experience in this specialized area. The firm consists of four partners (Richard S. Whitmore, Janice E. Johnson, Richard C. Bolanos, and Cynthia J. O'Neill), five associates (Eileen S. Dizon, Jack W. Hughes, Deborah G. Leon, Ernest M. Malaspina, and Michael N. Westheimer), and a regular full-time support staff ' of nine. Our principal offices are located in Mountain View, California, but attorneys from our staff regularly travel throughout the State of California to provide services to clients as distant as San Diego County and Crescent City. The firm represents cities, counties, school districts, ' community college districts, special districts (including fire protection, sanitation, transportation, mosquito and vector control, power & water), private and public non-profit organizations and private companies. The firm offers a wide variety of legal services, including at-the-table representation or off- site advice on collective bargaining, mediation, fact-finding and interest arbitration, representation in disciplinary proceedings, grievance arbitrations, personnel commission hearings and administrative proceedings (EEOC, DFEH, PERB, and the Labor Commissioner), litigation defense, written legal opinions and general legal consultation. ' In addition to providing legal services, members of our firm develop and present client- specific workshops and training on various issues including: Sexual Harassment, Discrimination in the Workplace, Fair Labor Standards Act (FLSA), Collective Bargaining, Documenting and Disciplining of Employee Performance, Current Developments in Personnel Management and Concurrence with the Americans with Disabilities Act (ADA). These labor-management workshops are designed to assist our clients in individual and collective responsibilities in the workplace. As well as providing in-service training for individual client and management groups, ' our attorneys have also spoken on these topics before the following organizations: The League of California Cities, Institute of Industrial Relations, Association of County Counsels, County Supervisors Association of California, California Public Employers Labor Relations Association ' (CALPELRA), National Public Employers Labor Relations Association (NPELRA), International Personnel Management Association (IPMA), the Northern California Human Resources Council (NCHRC), and San Diego City/County Personnel Association (CCPA): WJ&B Bio 1 ' 2570 W. El Camino Real, Suite 600 • .101;untain View, CA 94040 • 630-941-9333 0 800-585-4529 9 FAX 650-9.41-9476 1 The firm has contributed to many publications intended to educate public agency managers regarding the interpretation of, and compliance with, employment laws and regulations. Examples of some of these efforts include California_P__ublic Sector Labor Relations, a publication sponsored by the Labor and Employment Law Section of the California State Bar; ' California•PublIQ Employee Relations, a journal published by the Institute of Industrial Relations; Mstarn ,City, a magazine published by the League of Cities; and Review of Employment Law Decisions, the League's Personnel and Employment Relations Department Newsletter. In ' addition, we publish and circulate our own newsletter alerting clients to changes in relevant legal requirements. ' Actual reported cases in which our firm has been involved include the following: Sunnyvale Public Safety Officers Assoc. v. City of Sunnyvale (1976) 55 Cal.App.3d 732; Vemon Firefighters v. City of Vemon (1980) 107 Cal.App.3d 802; LULAC v. City of Salinas (1981) 654 ' F.2d 557; Relyea v. Ventura County Fire Protection District(1992) 2 Cal.AppAth 875, Gauthier v. City of Red Bluff(1995) 34 Cal.App.4th 1441; Bamer v. City of Novato (9th Cir. 1994) 17 F.3d 1256; Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416; Zazueta v. San Benito County(1995) 38 Cal.AppAth 106; Stewart/Chan v. City and County of San Francisco (1993) 834 F.Supp. 1233, affirmed by unpublished opinion (9th Cir. 1995); ' Warren v. Carlsbad(9th Cir. 1995) 58 F.3d 439, c&d:dm.; Stanley v. City of Tracy(9th Cir. 1997) 120 F.3d 179; and Imada v. City of Hercules (9th Cir. 1998) 138 F.3d 1294. Finally, attorneys from the firm have been active in preparing amicus briefs on behalf of public agencies on matters of statewide importance. Published opinions include: Fine Fighters Union, Local 1186 V. City of Vallejo (1974) 12 Cal.3d 608; Glendale City Employees'Assn. v. ' City of Glendale(1975) 15 Cal.3d 320; Burden v. Snowden(1992) 2 Cal.4th 556; Binkley v. Long Beach (1993) 16 Cal.AppAth 1795; Farmers Insurance Group v. County of Santa Clara (1995) 11 CalAth 992. 1 wJBB Bio 2 "IjWHITMORE, JOHNSON & BOLANOS s,B L '--A Richard S. %Vhitniore Jack W. Hu-hes Janice E. Johnson Ernest ,fit Maliasp"["'l Richard C. Solanos Eileen S. Dizon cvW[lia I. 0 Neil; D6)o,ah G. bu()-. Nliclh�iO N. W`esli-e mer 0;=COUNN.1- Ka1hrvn J. BLI-ku BACKGROUND SUMMARY OF RICHARD-S-WHITMORE Served as Legislative Assistant to Honorable Paul.N. McCloskey, Jr., Washington, D.C. (1967). Practiced general civil law as an Associate Attorney with Wilson, Mosher & Martin (now Wilson, Sonsini, Goodrich & Rosati), Palo Alto, California (1968-1970). Began in 1970 representing management in public sector employment matters. Founding Partner of Whitmore, Kay & Stevens (1976-1991) and Whitmore, Johnson & Bolanos. Exclusive practice representing cities, counties, and special districts in California and Nevada in labor relations, collective bargaining, employee discipline, personnel, contract administration and grievance arbitration, mediation, and defense of employment discrimination claims in state and federal court or before administrative agencies. Specialized representation of California cities with charter interest arbitration. Conducted training programs and lectured at: Stanford University School of Law (Advanced Labor Law), University of California (Continuing Education of the Bar), University of Santa Clara School of Law (Advanced Negotiations Seminar), University of California (Institute of Industrial Relations), Northern California Criminal Justice Training Center(Practicing Law Institute), International Personnel Management Association (IPMA), League of California Cities, County Supervisors Association of California (CSAC), Association of County Counsels, Southern California Labor Relations Council, National Public Employer Labor Relations Association (NPELRA), California Public Employer Labor Relations Association (CALPELRA), Southern California Personnel Management Association, Southern California Public Labor Relations Council, San Diego City/County Personnel Association (CCPA), and Labor Relations Information System (LRIS), Portland, Oregon. Testified before United States House of Representatives Committees and California Senate Committees on legislation dealing with employee rights, comparable worth and related employment issues. Served as legal advisor to National League of Cities on police employment issues. Advised staff of House Judiciary Committee on National Police Officer Bill of Rights. 2570 W. El Ca-r.i,!o Real, Suite 600 s -',Iou^tain View, CA 94040 * 650-941-9333 @ 800-585-4529 FAX 650-941-94-6 I Publications include: California Public Sector Labor Relations, Labor and Employment Law Section, State Bar of California (1989) [contributing author]; Administrative Mandamus, Continuing Education of the Bar, University of California (1989) [contributing author]; Ske11v v. State Personnel Board:A Ten-Year Perspective, California Public Employer Relations (CPER), Number 66, September 1985; Public Employees Do Not Have "Right" to Strike, League of California Cities Employee Relations Service, November 1987 [co-author]; Model Law Enforcement Contract: A Management ' Perspective (Second Edition), Labor Relations Information Systems (1999); A Model F'refi-ghter's Contract* A Management , Labor Relations Information Systems (1994). Published opinions include: Fire Fighters Union, Local 1186 v. City of Vallejo (1974) 12 Cal.3d 608 (amicus); Glendale City Employees'Assn. v. City of Glendale (1975) 15 Cal.3d 328 (amicus); Sunnyvale Public Safety Officers Assn v. City of Sunnyvale (1976) 55 Cal.App.3d 732; Vemon Fire Fighters v. City of Vemon (1980) 107 Cal.App.3d 802; LULAC v. City of Salinas Fire Department (9th Cir. 1981) 654 F.2d 557; Campbell Municipal Employees Association v. City of Campbell(1982) 131 Cal.App.3d 416; Relyea v. Ventura County Fire Protection Dist (1992) 2 Cal.App.4th 875; Burden v. Snowden (1992) 2 Cal.4th 556 (amicus); Binkley v. Long Beach (1993) 16 Cal.App.4th 1795 (amicus); Gauthier v. City of Red Bluff(1995) 34 Cal.App.4th 1441; and Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal.4th 992 (amicus). ' Graduate of Stanford University (1964) and Stanford University School of Law (1967). 1 1 1 1 1 z 1 1 ' WHITMORE, JOHNSON & BOLANOS REPRESENTATIVE CLIENT LIST ' Cities and Counties ' Albany Half Moon Bay Patterson Atascadero Hercules Port of Oakland Atherton Gonzalez Ripon Berkeley Hercules Rohnert Park ' Campbell Hollister Salinas Carlsbad Huntington Beach San Benito County Chico King City San Carlos ' Colma Lafayette San Jose Concord Los Altos San Luis Obispo Coronado Los Gatos San Mateo ' Corte Madera Manteca San Pablo Crescent City Mariposa Santa Clara Cypress Menlo Park Santa Clara County ' Daly City Millbrae Shasta Del Mar Modesto Stanislaus Emeryville Monterey Park Stockton Encinitas Morgan Hill Sunnyvale Escondido Mountain View Tracy Fairfield Novato Visalia t Fort Bragg Oakland Watsonville Fortuna Pacific Grove Willits Foster City Pacifica Special Districts and Other Agencies AC Transit District ' Alameda County Mosquito Abatement District Alameda Housing Authority Aptos Fire Protection District Central San Joaquin Risk Management Authority Contra Costa Mosquito & Vector Control District East Bay Municipal Utility District ' League of California Cities Mid-Peninsula Regional Open Space District Napa Sanitation District ' North County Fire Protection District Northern California Power Agency San Diego County Superior Court t San Diego County Water Authority San Mateo Harbor District State Bar of California St. John Kronstadt Convalescent Center School Districts and GQgmunity College Districts St. Francis High School ' Yosemite Community College District 1 CLIENT REFERENCE LIST ' RICHARD S. WHITMORE ' Nona Tobin Homer Bludau Director of Human Resources City Manager City of San Jose City of Coronado ' 801 North First Street, Room 207 1825 Strand Way San Jose, CA 95110 Coronado, CA 92118 Telephone: 408-277-4380 Telephone: 619-522-7300 ' Jay C. Rounds Dan Kelly Director of Human Resources Labor Relations Manager City of Palo Alto City of San Diego ' 250 Hamilton Avenue 202 "C" Street Palo Alto, CA 94301- San Diego, CA 92101 Telephone: 650-329-2124 Telephone: 619-236-6313 ' L. E. Burcham Daryl Chandler Chief Executive Officer Personnel Director ' North County Fire Protection District City of San Rafael 315 East Ivy Street 1400 5th Avenue Fallbrook, CA 92028 San Rafael, CA 94915 Telephone: 760-723-2005 Telephone 415-485-3062 1 Deborah Acosta LeeAnn Kazerski City Manager Assistant City Manager ' City of Pleasanton City of Morgan Hill 123 Main Street 17555 Peak Avenue Pleasanton, CA 94566 Morgan Hill, CA 95037 ' Telephone: 510-484-8008 Telephone: 408-779-7271 Ann Cheverton Donald Horsley Director of Human Resources Sheriff City of Carlsbad San Mateo County 1200 Carlsbad Village Drive 401 Marshall Street Carlsbad, CA 92008 Redwood City, CA 94063 Telephone: 760-434-2852 Telephone: 650-364-1811 JoAnne Speers Steve Keil General Counsel Legislative Coordinator League of California Cities California State Association of Counties 1400 K Street, Suite 400 1100 K Street Sacramento, California 95814 Sacramento, CA 95814 ' Telephone: 916-658-8233 Telephone: 916-327-7500 Layne Long Assistant City Manager City of Los Altos One N. San Antonio Road Los Altos, CA 94022 Telephone: 650-941-7419 ' WHITMOSE- J -HNSOU& BOLANOS FEE SCHEDUL PUBLIC AGENCY FEE SCHEDULE (Hourly Rates) rPartners $175.00 - $260.00 ' Associates $135.00 - $175.00 Graduate Legal Assistants $110.00 ' Law Clerics $. 95.00 ' Paralegals $ 70.00 1 li. 1. Photocopies $0.15 per copy 2. Facsimile Transmittal $1.50 per.page r r 1 ' March/April 1999 New POBR Amendments Allow Public Agencies to Adjust Administrative Appeal ' Procedures for At-Will Public Safety Employees By Michael iv Westheimer ' Public agencies are now well aware that the PROBATIONARY OFFICERS NO employee because of alleged misconduct Public Safety Officers Procedural Bill of LONGER HAVE A POBR which stigmatizes his/her reputation or Rights Act("POBR")' affords a public safety ADMINISTRATIVE APPEAL RIGHT seriously impairs his/her opportunity to officer the"opportunity for an administrative earn a living;2)the employee denies the appeal" whenever the officer is subjected to The Commission on Peace Officer Standards misconduct; and 3) the public agency ' °punitive action" or "denial of promotion on and Training ("POST") has issued publicly discloses the misconduct.' grounds other than merit."2 The POBR regulations that provide: "Every peace defines punitive action as "any action that officer employed by a department shall be If a public agency impairs a probationary ' may lead to dismissal,demotion,suspension, required to serve in a probationary status for officer's liberty interest,then the agency reduction in salary, written reprimand, or not less than 12 months."" During this must provide the officer a liberty interest transfer for purposes of punishment."' probationary period, officers are generally meeting. In this streamlined process,the considered to be at-will employees who can agency need not prove the alleged ' Public agency employers readily appreciate be released from employment without cause misconduct through evidence or the logic of providing an administrative so long as the reason for the release does not testimony. Instead,the agency must give disciplinary appeal to a for-cause officer who violate the officer's constitutional or other the officer notice of the reasons for ' has a constitutionally-protected property basic rights.' Prior to the recent POBR removal,and an opportunity to meet with interest in continued employment. They often amendments, agencies routinely provided the decision-maker before the decision to experience conceptual and operational probationary officers with POBR dismiss becomes final. During the ' difficulties,however,when they are required administrative appeals to avoid potential meeting, the officer must be allowed to to apply the POBR administrative appeal liability in the face of contradictory case clear his/her name by refuting the reasons requirement to an at will officer, such as a law.' for the dismissal.10 probationer or a police chief,who has no such ' property interest. Effective January 1, 1999, The POBR now indicates that the Practice Tip: Although public agencies new POBR amendments help clarify how and administrative appeal requirement applies need not offer a probationary officer an when public agencies must administer the only to officers who have successfully administrative appeal,they may still have ' administrative appeal requirement. completed probation: "No punitive action, rules, general orders or collective nor denial of promotion on grounds other bargaining agreements that provide The new legislation modifies the POEIR than merit,shall be undertaken by any public appeal rights for probationers. If an ' administrative appeal right in three ways. agency against any public safety officer who agency's internal rules or agreements First, according to the amended law, there is has successfully completed the probationary require that a probationary peace officer no administrative appeal requirement for period that may be required by his or her receive a POBR appeal, the agency can probationary officers.Second,new provisions employing agency without providing the condmAxim PW 2 tmake clear that the POBR administrative public safety officer with an opportunity for appeal right does not transform an at-will administrative appeal."' police chief into a for-cause employee. Third, What's Inside ' a statute has been added that confirms that Although probationers have no right to a 'Answers on public agencies must create their own POEIR administrative appeal, probationary Persnrtne!a�uh b r Relations administrative appeal procedures. This article and other at-will employees still have a Iasafres discusses the new provisions and illustrates separate, constitutionally-protected liberty ' how public agencies can update their own interest in pursuing an occupation of their • Buck to BasFcs__ ular Rate POBR administrative appeal procedures choosing.' That liberty interest is impaired Ri ew of Recen't Publie Sector, accordingly. during the course of a dismissal when: 1) a Corot Dea1°si<, ' public agency proceeds to dismiss an at-will ' WHITMORE, JOHNSON & BOLANOS • Attorneys at Law 2570 W. El Camino Real, Suite 600 • Nlounlain View, CA 94040 • 6-0-941-9333 • 800-383-1529 FAX 650-911-9176 � 1 meet and confer as appropriate to provides its at-will police chief a greater supports the charges,and an opportunity ' prospectively eliminate that requirement. In administrative appeal right,it can take steps to respond before the discipline is order to avoid impairing an officer's liberty to prospectively update the sources of that actually imposed," interest as a result of rejection from probation, appeal right — municipal code provisions, ' public agencies should not publicize the personnel rules, general orders, or A for-cause officer also has a post- reasons for releasing an officer from employment contracts — to be consistent decision procedural right to an probation, nor formally charge the officer with the new POBR amendment. evidentiary appeal hearing that includes: with wrongdoing." If a review of the "the right to appear personally before an I circumstances indicates that the liberty THE NATURE OF THE POBR impartial official,"to confront and cross- interest has been impaired under the three-part ADMINISTRATIVE APPEAL examine adverse witnesses, to present test described above, however, the public favorable evidence and to be represented ' agency must provide the basic liberty interest Although the POBR has always contained by counsel."" This high-level procedural meeting before separating the officer. the administrative appeal requirement, the right also requires the agency to prove statute has never defined the nature of the the charges against the officer 11 Most ' ADMINISTRATIVE APPEAL RIGHTS appeal. .bne of the new amendments states agencies already have evidentiary appeal FOR AT-WILL POLICE CHIEFS only that "[a]n administrative appeal hearing procedures in their personnel instituted by a public safety officer under rules, general orders or collective ' The new amendments clarify that the POBR this chapter shall be conducted in bargaining agreements that are sufficient administrative appeal requirement does not conformance with the rules and procedures to satisfy the POBR administrative appeal transform an at-will police chief into a for- adopted by the local public agency."" This requirement for a for-cause officer who is cause employee. The prior law complicated section describes the minimum procedural disciplined in any manner that deprives ' this issue because it had been interpreted to requirements necessary to provide a the officer of his/her property rights in give an at-will police chief a statutorily- sufficient POBR appeal. salary/employment. protected right to an administrative appeal." ' An appeal is a procedure a person can use to Provide A Post-Written Reprimand The amended POBR adds the following new challenge a decision. The POBR Conference for Both For-Cause and subdivision: "No chief of police may be administrative appeal gives a public safety At-WWI Offleers ' removed by a public agency, or appointing officer an opportunity to challenge an authority, without providing the chief of agency's decision to impose punitive Issuing a written reprimand, even to a police with written notice and the reason or action." Constitutional due process for-cause officer,does not impinge upon reasons therefor and an opportunity for principles indicate that both an officer's a constitutionally-protected property ' administrative appeal. For purposes of this employment status and the severity of the interest. While demotion,suspension and subdivision, the removal of a chief of police punitive action dictate the nature of the dismissal all involve a deprivation of pay by a public agency or appointing authority, requisite POBR administrative appeal." or benefit,a written reprimand results in ' for the purpose of implementing the goals or no such loss to the employee." policies, or both, of the public agency or Provide An Evidentlary Hearing for Accordingly, the same high procedural appointing authority, for reasons including, Punitive Actions that Deprive For-Cause protections that apply to disciplinary ' but not limited to, incompatibility of Of)`3cers of.Salary deprivations of salary are not required for management styles or as a result of a change lesser discipline that does not deprive an in administration, shall be sufficient to For-cause officers have a constitutionally- officer of his/her property.' constitute`reason or reasons.' Nothing in this protected property interest to continued ' subdivision shall be construed to create a employment that entitles them to both pre- Instead,the POBR administrative appeal property interest,where one does not exist by disciplinary due process and a post- requirement is met when either a for- rule or law,in the job of Chief of Police."" disciplinary appeal." Separate and apart cause or non-probationary at-will officer ' from the POBP, this constitutionally- receives a written reprimand, if the Practice Tip: The amended POBR clarifies protected property interest requires a public officer and his/her representative,if any, that at-will police chiefs do not gain a for- agency to provide a for-cause officer the are given an opportunity,after the written ' cause status by virtue of their right to a POBR highest procedural protections whenever a reprimand is issued,to meet with a police administrative appeal. Although they remain punitive action diminishes salary such as department manager who is more senior entitled to an opportunity for a POBR suspension, pay reduction, demotion or than the one who issued the reprimand.0 administrative appeal, the new law clarifies termination.The pre-disciplinary right is also If the chief of police issued the ' that even intangible management-style or known as the Skelly process,and requires a reprimand,then the reprimanded officer political reasons provide sufficient grounds public agency to give the officer written must be able to appeal to a higher- for dismissal. If a public agency now notice of the charges,the documentation that ranking official." Caumpq.J ' 2 March/April 1999 WHITMORE, JOHNSON & BOLANOS • Attorneys at Law i r . Provide An Informal,Pre-Dismissal Practice Tip: The POBR does not require a 15 Cal.Gov'I Code§3304(b). 16 gyan (1995)40 C npp ath 91, 6-67,47 Conferencefor At-Will O�eers public agency to provide every officer a full Cal.4tr_2d 356,360-61. evidentiary appeal as to every punitive 17 See,e.g,Skelly v.State Personnel Board(1975)15 I At-will officers do not have a constitutionally- action. While an evidentiary appeal must be Cal.3d 194,124 Cal.Rptr.14. 18 Id.,15 Ca1.3d at 208,124 Cal.Rptr.at 24. protected property interest in their positions.26 provided to a for-cause officer whose 19 An impartial official is one who is not-embroiled in A process less formal than an evidentiary discipline involves a salary reduction or the controversy" (Gray 224 Cal.App.3d at 631,273 I Cal.Rptr. at 736) as a material witness to the facts hearing provides an appeal sufficient to meet dismissal, that costly and time-intensive underlying the proceeding,has no financial interest in the the POBR requirement for at-will officers. procedure is not necessary when proceeding,and has no fiduciary or familial relationship The POBR appeal procedure for at-will constitutional roe interests are not at with a party to the proceeding.(Cal.Code of Relations Prot.1 PP P property rtY 170.1(a); v. Agricultural Labor Relations Bd. I officers need only "give the peace officer stake. For example, any non-probationary (1981)28 Cal.3d 781,171 Cal.Rptr.590. Courts generally subjected to a punitive action an opportunity officer who receives a written reprimand find a hearing officer to be impartial when there are no concrete facts demonstrating any personal or financial stake 'to establish a formal record of the need only have the opportunity to meet with in the matter or any personal animosity toward the circumstances surrounding his [Inter] an official of higher rank than the one who employee. (Sealljagia 16 Cal AppAth■r 1s10,20 Cal Rptr 2d at 912;Mu,Qcp,160 Cal.App 3d at 312,206 C=l.Rptr at 706). termination' and 'to attempt to convince the issued the reprimand. An at-will officer who 20 Ske{Ir•.15 Cn1.3d at 208,l24 Cal.Rptr.at 24. employing agency to reverse its decision, the agency intends to dismiss need only 21 Parker v. City, of Fountain valley (1981) 127 359. either b demonstrating the falsity of charges receive a non-evidentiary, 22 Stp.3d 99,113,es 179 nuneniCal.Rptr.351,)22 y g tyary, informal 2z Stanton v.Wes1 Sacramento(1991)226 Ca1.App.3d I which led to punitive action,or through proof conference prior to the effective date of the 1438,1442,277 Cal.Rptr. 478,480. „2� 23 In issuing written reprimands,public agencies should of mitigating circumstances.' dismissal. also be aware of the followingPOBR requirement:"No public safety officer shall have any comment adverse to his A POBR administrative appeal for an at-will Agencies can prospectively update their interest entered in his personnel file,or any other file used for any personnel purposes by his employer,without the officer who the agency intends to dismiss, rules,general orders or collective bargaining public safety officer having first read and signed the need only provide the officer a "meaningful agreements,after meeting and conferring as instrument containing the adverse comment indicating he s aware of such comment,except that such entry may be i and adequate opportunity to refute the charges appropriate, to include a less formal POBR made if after reading such instrument the public safety I and clear his[/her]name."2e The agency need appeal process for reprimands and for officer refuses to siren it. Should a public safety officer not produce live witnesses to testify under dismissals of at-will officers. With foresight refuse to sign,that fact shall noted" that document, and signed or initialed by suchh officer." that Gov't Code 4 oath and to be subject to cross-examination; and planning, agencies will be able to 3305 instead, the officer need only have "the comply with the POBR, afford officers the 25 Stanton,226 Cal.App.3d t 1442-43,277 Call R�.++ao 811 opportunity to present his [/tier] side of the requisite administrative appeal process, and 26 Bo¢acki v.Board of Supervisors(1971)5 Cal.3d 77 I, story at the hearing and present written lawfully implement disciplinary decisions. 778,97 Cal.Rptr. 657,662. 27 Binklev,16 Cal.App.4th at 1806,20 Cal.Rptr.2d at I evidence.n29 The agency need not put on a 909(quoting DA=v.Personnel Dent,of the City of Ei case, much less prove its reasons for I Cal.Gov't Code§I 3300-3311. Caion(1978)87 Cal.App_3d 502,506, 151 Cal.Rptr_94. 2 Cal.Gov't Code 13304(b). 96;Browning. 175 Cal.App.3d at 430, 220 Cal.Rptr.at dismissal.}° 3 Cal.Gov't Code§3303. 766-67) 4 Cal.Code Regs.title 11,§1004. 28 Minn,160 Cal.App.3d at 312,206 Cal.Rptr.at 705. In many instances, the following procedure 5 SM v.County of Placer(1984)153 Cal.App.3d 209,215, 29 Holes v.District Attorney for the City&County of 200 Cal.Rptr.181,185;Llibq v.Cm&County of San Francisco San Francisco (1999) 68 Cal.App.41h 1523. 1533. 81 will meet the POBR administrative appeal (1979)98 Cal.App.3d 340,345,159 Cal.Rptr.440,443 Cal.Rptr.2d 174,180. requirement for the dismissal of an at-will 6 LwwM v.County of Placer(1994)153 Cal_App 3d 209,200 30 Hinkley.16 Cal.App.4th 1809,20 Cal.Rptr.2d at 911. I Cal.Rptr.19 1(holding that probationary peace officers had no 31 Although a public agency generally need nut give any officer: 1) advance written notice that states POBR administrative appeal right for bare rejection);Riveros v. reason for the dismissal of an at-will employee,it must the reasons for a dismissal31 that will not City of Los An¢eles(1996)41 Cal.App.4th 1342.49 Cal_Rptr.2d provide some indication why it is dismissing an at-will 238 (holding that probationary officers have POBR officer so that the officer will have a meaningful become effective until the officer has had an administrative appeal rights);see also Browning v.Hlock(1985) opportunity to refute the reasons during a POBR opportunity to respond; 2) the officer and 175 Cal.App.3d 423,220 Cal.Rptr.763(same). administrative appeal. In addition, in Order 10 prntecl his/her representative, if any, have an 7 Cal.Gov't Code 1 3304(b)(amendment in italics). against allegations that the dismissal was pretexmal, a 8 l&,y v. City_& County of San Francisco (1979) 98 public agency must he able to support the legitimacy Of its opportunity to present the officer's case to the Cal.App.3d 340,159 Cal.Rptr.440;see also Mttrdca v.County decision. See Cotran v.Rollins Hudia Hall Intern..Inc. decision-maker; 3)the officer is responsible of Sacramento(1984)160 Cal.App.3d 302,206 Cal.Rptr.699. (1999) 17 Cal.4th 93, 108, 69 Cal.Rptr.2d 900, 910 9 Lubev v. City & County of San Francisco (1979) 98 (holding that, for an employee who was dismissed for for convincing the decision-maker to abandon Cal.App.3d 340,346-47,159 Cal.Rptr.440,443-44;Bishoo v. misconduct,the reasons for the dismissal needed 6o be or reduce the discipline; and 4)the decision- F22d(1976)426 US-341,348.96 S.Ct.2074. 'supported by substantial evidence gathered through an maker thereafter makes a final decision to 10 Murden v_County of Sacramento(1984) 160 Cal.App.3d adequate investigation that includes notice ofthe claimed 302,31 I-12,206 Cal.Rptr.699,705_ misconduct and a chance for the employee to respond");see sustain, reverse or modify the dismissal. If I I See Fleisher v.City of Sirmal Hill W Cir,1987)929 F.2d also WJ&B A'ewslerter article,March/April 1998 edition, the decision-maker is embroiled in the 1491,1495. entitled "The California Supreme Court's New Cntrun 12 BiltWev v.C tv oflapy Beach(1993)16 Cal.App.4th 1795, Opinion Also Provides Public Employers Insights for controversy that led up to the dismissal," 20 Cal.Rptr.2d 903(at-will police chief is entitled to a POBR Sound Disciplinary Decisions' however,a more extensive procedure may be administrative appeal regarding removal that includes advance 32 See endnote 19 for a discussion of what cons(itulcs a I notice of charges and an opportunity to respond);Q=v.Cio; non-involved or impartial decision-maker. required. In one such case,the public agency of Gustine(1990)224 Cal.App.3d 621.273 Cal.Rptr.730(at- 33 See Binkicy, 16 Cal.AppAth at I810-11, 20 used a third party to find facts during an will police chief was entitled to a POBR administrative appeal Cal.Rptr.2d at 912-13. informal hearing and to make a regarding his demotion to lieutenant). 1;Cal Gov't Code 1 3304(c). recommendation to the decision-maker.33 14 Cal.Gov't Code 13304.5. March/April 1999 3 IWHITMORE, JOHNSON & BOLANOS • Attorneys at Law � II Public Employer Forum I Questions & Answers on Personnel and Labor Relations Issues These answers are provided for general information only and are not intended as legal advice in any particular factual situation. Variations in any factual situation can produce different results. Moreover,Personnel Rules and Regulations vary among agencies. Therefore,readers of this column should rely on these answers solely for their instructive or educational value and not for solving particular problems. Q The attorney for our employees'association insists that all notices to the association be copied to her. Our city has never I conceded that this is appropriate. We want to adopt a new Employee Assistance Program (EAP). We notified the association and understood that it had no objection. When the city tried to adopt the EAP, however, the association's attorney said our failure to give proper notice thwarted its right to meet and confer. Is she right? A Probably not. Written notice to the association should suffice to shift the burden to the association to decide whether to request meeting and conferring. The association's failure to request bargaining should constitute a waiver of the right to meet and confer and I allow adoption of the EAP. If however,an association officer(as distinguished from its attorney)has explicitly and in writing advised the city to send notices to the attorney,the association has an argument that there was inadequate notice,no waiver of meeting and conferring,and improper adoption of the EAP. Q We have created a new "records supervisor"classification in the police department. There is a dispute as to whether the new I classification should be in the miscellaneous unit or the general supervisory unit. The two employee organizations have suggested we have three-way bargaining to negotiate a solution. Is our agency required to engage in such negotiations? A No,not unless your local rules expressly require your agency to negotiate. It is probably not a good idea to negotiate over the make-up of a bargaining unit. Typically,an agency's employee-employer relations resolution gives the agency the management right to apply objective criteria (e.g., history of representation, community of interest) to determine the appropriate composition of bargaining units. Negotiating compromises and tradeoffs contradicts both this management right and the basic rationality of the unit determination process. Providing notice to affected employee organizations and consideration of their input before deciding on the appropriate unit,however, is not only desirable,but may be required by your local rules. Q Our personnel director assigned an analyst to investigate a harassment complaint in the parks department. Even if sustained I the complaint would not have resulted in discipline beyond a reprimand. After the analyst finished her interviews, we learned that she did not tape record them. Do we have to go back and re-interview each employee on tape? I A No. There is no requirement that investigation interviews be tape-recorded, although it is a common practice to do so. If the complaint allegations are not serious,or if facts are not hotly contested,then tape recording may not be necessary. In this case,it might make sense for the analyst to review her interview notes,and then draft a statement for each witness for his/her review,revision,and I signature. Those statements can then be attached to the investigative report. If an attorney is directing the investigation,however,be aware that verbatim witness statements are not shielded by the work product protection under either state or federal law. Q We were not successful in reaching agreement in negotiations with our freighters'association. We have a mediation coming up with the State Conciliation and Mediation Service. We understand that the association intends to put back on the table in mediation several proposals that it had dropped during negotiations. Is that legal? A Probably not,but there maybe very little consequence to the association. Resurrecting previously abandoned bargaining proposals is usually deemed to be "regressive"bargaining and provides evidence of bad faith. Mediation is a confidential process,however,so it would be difficult—if not impossible—to use the"evidence"against the association in court. The agency's best response is to tell I the mediator exactly what the association is doing and to utilize the mediator to get the discussions back on track. I I q March/April 1999 WHITMORE, JOHNSON & BOLANOS a Attorneys at Law I f Review of Recent Public Sector Court Decisions BROWN ACT: Broad Interpretation of Personnel Exception By: Jack W. Hughes The Sierra Community College hired Debra Ann Furtado as purpose of the personnel exception is to permit free and Assistant Dean of the library, and terminated her candid discussions of personnel matters and to protect the Iemployment after she received a poor evaluation during her employee from public embarrassment. It is only when the second year. Although the College initially retained her as agency brings charges against an employee that the a contract employee, an evaluation committee later employee has an opportunity to hear the allegations and to recommended discontinuing her contract. The College's address them in open session. Superintendent-President informed Furtado that he agreed with the evaluation committee's report and would As an alternative argument, Furtado proposed that the recommend in a closed session that the Board of Trustees negative comments in her evaluations constituted Inot renew her contract. Furtado wanted to address the Board complaints or charges against her that entitled her to an in both open and closed sessions. The Superintendent- open session. The court noted that a performance President notified her that while she could attend the open evaluation is not an accusation against the employee and is session,her evaluation would occur in a closed session. The therefore not equivalent to a charge or complaint. Board subsequently voted in closed session not to extend Furtado's contract. Furtado also suggested that the Board had mischaracterized her agenda item by listing it as "Public Employee IFurtado sued, claiming that the Board had violated the Performance Evaluation (Non-Tenured) Librarian" rather Brown Act by deciding to terminate her employment in than"Public Employee Discipline/Dismissal/Release." The closed session. Although the Brown Act generally requires court found that the agenda listing substantially complied that all meetings of the legislative body of a local agency be with the law and did not mislead Furtado. The court noted Iopen and public, the personnel exception allows the that it would be impractical for the Board to either: Iist legislative body to discuss performance evaluations, "dismissal" in an agenda item to discuss an evaluation discipline, or dismissals in closed session. Furtado because the Board may decide to retain the employee; or disagreed with the College's interpretation of the personnel hold two separate meetings-- one to review the evaluation exception. Furtado contended that she was entitled to an and another to decide on dismissal or discipline. open session because she had requested one. The Board contended that the personnel exception only requires an Furtado v.Sierra Communily College(December 18, 1998)68 Cal.App.4th 876, open session when the agency brings complaints or charges 80 Cal.Rptr.2d 589(3rd Dist.) against the employee. The court agreed with the Board. The BACK TO BASICS This feature of the W.l&B NeWr 16tter respoiids to readers requests to define basic employment law terms F.ach`tssue will explore a separate term; providing a basic definition and brief summary ofthe issues associated with the term. REGULAR RATE: The Fair Labor Standards Act(FLSA}generally requires that overtone cotnpensat>lon be ad at a rate that;: is not less than one and one-half times the "regula.......ate" of:pay. (29... S.0 § 207(a).) ..... he-"regular rate"of pay includes note only base pay,but also several other forms of compensation. During collective bargaining, public employers oft agree to pay: compensation_in addition to base pay without assessing whether those payments.will increase total ovettt a costs: The.allowing: :payments must.be included in the regular rate In order to properly compute FLSA overture compensation standby pay`(29 CFR ...... § 778.223);night shift differentials'(29 CFR§ 778.207(b));mandatory bonuses(29 CFR§778.211(c));of bfftdidfid :1nCentiVes (29 CFR§778.207(b).) Included among the seven categories of payments that need not be factored into the regular rateof_pay_ Iare sick leave pay, and.certatn contract overtime premiums (29 U S C §207(e)) I March/April 1999 5 IWHITMORE, JOHNSON & BOLANOS • Atlornevs at Law Review of Recent Public Sector Court Decisions ... Continued DISABILITY: Medical Leave Can Be A Reasonable Accommodation By: Deborah G. Leon I Vera Nunes, who became a sales associate for Wal-Mart in One of Wal-Mart's defenses centered on Nunes' early 1994, was a good employee with "above average" application and receipt of disability benefits. The court, performance ratings. She suffered from a disorder that however,found that these factors did not automatically bar caused her to faint. She fainted on the job in March, and her from establishing that she was a "qualified individual again in April, and then went on medical leave until July with a disability" under the ADA. Wal-Mart also 1994. On her return to work, she was faint-free through maintained that Nunes was not able to perform the essential February 1995. In March 1995, she fainted, broke her functions of her job with or without reasonable glasses, and cut her eyebrow. Nunes then started an accommodation. The court noted that unpaid medical leave extended medical leave for diagnosis and treatment. may be a reasonable accommodation under the ADA, if the Throughout her leave period, Nunes submitted doctors' absence does not present an undue hardship to the certificates indicating that she would be unable to return to employer. No such hardship was present here, however, work until November or December I995. In October,Nunes because Wal-Mart had a practice of hiring temporary help learned stress-reduction techniques while being hospitalized during the holiday season,and also had a policy to provide I for her stress-related disorder. up to a year of unpaid medical leave. The personnel manager terminated Nunes after he learned Finally, the court dismissed Wal-Mart's suggestion that I that her telephone had been disconnected. The manager's Nunes posed a direct threat to the health or safety of others action violated Wal-Mart's policy, which required him to in the workplace. While it was possible, for example,that first send Nunes a certified letter inquiring about her status Nunes, who worked as a cashier, could harm someone if and then give her three days to respond. Wal-Mart later she were to drop a heavy object while fainting, Wal-Mart informed Nunes that she had been discharged for failing to could have accommodated her so that she would not have submit leave of absence forms and because Wal-Mart to lift and carry heavy objects. I needed someone to fill her position during the holidays. Nunes sued Wal-Mart for terminating her in violation of the Nunes v. Wal-Mart Stores. Inc. (January 28, 1999) 1999 Daily Journal Americans with Disabilities Act(ADA). D.A.R.953(9th On) I Percentage Chan a for Area Consumer Wage Earner I g g B CONSUMER PRICE INDEX San Francisco 3.0 2.7 Los Angeles 1.4 1.2 Year Ending December I998 National 1.6 1.6 I I I 6 MerchlAprll 1999 WHITMORE, JOHNSON & BOLANOS • Attornevs at Law I WL��J �1 Review of Recent Public Sector Court Decisions ... Continued 1 DISABILITY: Supervisor is Not Individually Liable DISCRIMINATION: Supreme Court ' for Disability Discrimination Broadly Construes FEHA Religious Entity Exemption By: Ernest M. A9alaspina ' By: Eileen S. Dizon Larry Le Bourgeois,a credit manager for Fireplace Manufacturers, Inc. (FMI),took an extended medical leave in March I992 in order to care for The California Supreme Court recently addressed whether an industrial injury. He was still not doing well by November,and did not an entity must organize itself as a nonprofit religious know when he would be able to return to work. FMI then hired someone corporation in order to be exempt from the California Fair else for the credit manager's job, because it was a key position. Le Employment and Housing Act (FEHA). In this case, an Bourgeois made no contact with FMI for the next six months,but in May African-American woman, June McKeon, sued her ' 1993 he informed his supervisor that he had a doctor's release and was employer, Mercy Healthcare Sacramento (MHS) for ready to come back to work. A human resource's administrator told Le discrimination on the basis of race and gender. She Bourgeois that the company currently had no openings but would try to contended that MHS had hired two white male nurses to find work for him. Shortly thereafter, FMI created a new marketing supervisory positions while allegedly stalling her own ' coordinator position for Le Bourgeois. promotion. MHS asked the trial court to dismiss the action, arguing that it was a nonprofit religious association and FMI tried to contact Le Bourgeois throughout that July, but he did not corporation that was excluded from FEHA's anti- return the calls. In the meantime,he filed discrimination complaints with discrimination provisions. MHS contended that the California's Department of Fair Employment and Housing and with the Catholic Church founded and continued to sponsor it, and federal Equal Employment Opportunity Commission, and advised his that it had a Catholic-oriented mission,directives,bylaws, ' supervisor that he did not want to return. Le Bourgeois then sued FMI and articles of incorporation. and his supervisor for discriminating against him in violation of the Americans with Disabilities Act(ADA). McKeon countered that MHS could not invoke the religious ' entity exemption because it was organized under the While Le Bourgeois' appeal was pending,the California Supreme Court Nonprofit Public Benefit Corporation Law and not the ruled in Reno v. Baird (see September/October 1998 iVJ&B Newsletter) Nonprofit Religious Corporation Law. The trial court that an employee may not pursue a claim of discrimination under agreed with MHS, but the Court of Appeal ruled in ' California's Fair Employment and Housing Act(FEHA)against his/her McKeon's favor. supervisor in the supervisor's individual capacity. The court quoted extensively from Reno v. Baird, because the rationale for that decision In reviewing the appellate decision, the Supreme Court ' also applied to Le Bourgeois' claim. The court explained that if examined the language and history of FEHA. The court supervisors could be held individually liable, effective management found the language of the religious entity exemption to be would be compromised because a supervisor would be motivated by the quite broad. The only requirements necessary to claim the desire to avoid personal liability rather than to act in his/her employer's exemption, the court declared, are that the entity be ' best interests. religious and not organized for private profit. The court concluded that the Court of Appeal had erred in narrowly The court also rejected Le Bourgeois' claim against his supervisor for construing the exemption to apply only to entities organized ' wrongful discharge in violation of the public policy expressed in FEHA, under the Nonprofit Religious Corporation Law. again referring to Reno v. Baird,because individual supervisors cannot be Furthermore,the court added,the Legislature did not intend held liable for public policy claims that are based upon FEHA violations. to exempt entities solely on the basis of how they chose to The suit against FMI was unsuccessful as well, because the evidence organize. The court concluded that a religious entity is not showed that the company's reasons for its employment decisions with required to incorporate as a nonprofit religious corporation respect to Le Bourgeois were legitimate and nondiscriminatory. in order to be exempt from FEHA. ' Le Bourgeois v.Fireplace'Manufacturers,Inc.,et al.(December 22, 1998)68 Cal.App.4th McKeon v.Mercy Healthcare Sacramento(November 9,1998)19 1049,80 CA.Rptr.2d 660 CalAth 321,79 Cal.Rptr.2d 319(Cal.Supreme) March/April 1999 7 ' WHITMORE, JOHNSON & ROLANOS • Attornevs at Law Review of Recent Public Sector Court Decisions ... Continued ' DISABILITY: Seniority System Trumps Duty to Accommodate By:Deborah G. Leon ' The Ninth Circuit Court of Appeals recently decided that the workers were not requesting an accommodation that would ' Americans with Disabilities Act (ADA) did not require an allow them to continue their present duties. Instead,they sought employer to violate a bona fide seniority system pursuant to a transfers to permanent light duty work. The ADA defines collective bargaining agreement in order to accommodate reasonable accommodation as including reassignment to a ' disabled workers. vacant position,but the light duty positions they requested were not vacant. The court recognized that under a seniority system, David Willis and Paul Gomez,two lung shore workers,sued the few positions are ever truly vacant. Other workers with more Pacific Maritime Association(PMA)and their unions for failing seniority had preference, and the employer did not have a duty ' to accommodate their disabilities. The most senior workers have to create new positions. priority for jobs in general,for low-exertion jobs, and for light duty work if they are over age 55 or disabled. Although some circuit courts consider a seniority system as only ' one of many factors to be weighed in assessing whether an Willis had worked for PMA since 1969. Although he was accommodation is reasonable, the Ninth Circuit rejected that injured in 1986 and reinjured in 1992,he never received the light approach because it would make employers too vulnerable to duty work, but remained on the waiting list until he retired in unfair labor practice charges or to ADA litigation. The court 1996. Gomez had worked for the PMA since 1988. He injured made it clear,however,that its decision applies only if there is his leg and was also diagnosed with cancer. His requests for a a direct conflict between the proposed accommodation and the transfer to another union that represented marine clerks,or to be seniority rights of other employees pursuant to a collective ' placed on light duty,Were denied due to his lack of seniority. bargaining agreement.The court found that the seniority system here was bona fide because that it had been created for The Ninth Circuit determined that the accommodations that legitimate,and not for discriminatory, purposes. Willis and Gomez had proposed were unreasonable because they conflicted with a bona fide seniority system established under a Willis V. Pacific Maritime Association, et at.; Gomez v. Pacific bfaritime collective bargaining agreement. The court explained that the Association,et al.(December 11,1998)162 F.3d 561 (9th Cir.) .. I OPEN ENROLLMENT FOR EMPLOYMENT RISK MANAGEMENT AUTHORITY :: COVERAGE ENDS:SOON. :. Beginning op,;-: Ul , 1999, Employment Rlsk Management Authority {ElZ1VIA) will begin :insuring public entrttes. thivt3�ghout California far errlploynent practices Itabiltt}+ ERMA vvti!provide broad coverage forboth attorneys' fees and: liability milting; claims such as di§cnminatiori,harassmbat,riWiatibr;.wrongful termination,and c#lter employment related inxutyes Whitmore,Johnson 8t Bolanos is onebftllree law firms thi{t will provide covered agencies legal defense;: ' training,and telephone cet}sultations The open enrallment period ends Apnl 3Q 1999 ::Interested agencies can contact Rob Kra ner,:Bickhi&e'&Associates at:(80 541-4391;ekt. 217:for more ihiforittation 1 8 March/April 1999 WHITMORE, JOHNSON & BOLANOS • Attorneys at Law , i iReview of Recent Public Sector Court Decisions ... Continued iDISCIPLINE: Personnel Commission Member DUE PROCESS: County's Unilateral Selection and Was Sufficiently Impartial Control of Hearing Officer Unlawful By: Eileen S. Dizon By:Jack W, Hughes Dennis Gai appealed, to a five-member Personnel Commission,the Theodore Haas appealed the revocation of his massage clinic City of Selma Police Department's decision to terminate his operator's license. The County Code allowed the Board of employment as a peace officer. Gai asked to disqualify Supervisors to either hear the appeal directly, or to appoint a Commission member David Helm, on the grounds that Helm's hearing officer to make a recommendation. Although Haas asked ibusiness contacts with the City and large donations to the to choose and compensate a hearing officer,the County attorney Department would bias Helm against Gai. The Commission denied who was handling the appeal unilaterally selected and paid private Gai's request and eventually voted to recommend Gai's discharge. attorney Abby Hyman. Hyman later refused to recuse herself, iThe Citv Council received the Commission's written despite Haas' contention at the hearing that the manner of her recommendation and then voted to uphold the termination. Gai selection did not assure impartiality. On Hyman's claimed his due process right to a fair hearing by an impartial and recommendation, the County approved the revocation of Haas' unbiased decision-maker was violated by Helm's presence on the license,and prohibited Haas from operating a massage clinic for ten iCommission and sued to set aside the decision. years. Haas appealed on the ground that the County's unilateral selection and payment of the hearing officer violated his due The California Court of Appeal dismissed Gai's lawsuit after process right to a fair hearing. ireviewing the standard of impartiality that applies to administrative hearing officers. That standard is not as strict as that required of a The court found Haas had a due process right to a fair and impartial superior or municipal court judge. A party's subjective perception decision maker because the County's revocation of his license ithat there is an appearance of bias is not sufficient to disqualify. deprived him of a constitutionally protected property interest. A Instead,a party must have concrete facts that the hearing officer is judicial officer generally does not meet the fair and impartial actually biased,or that there is a likelihood of actual bias. standard if he/she has a direct, personal and substantial financial interest in the proceeding. In this case,the court found the hearing iThe court rejected Gai's contention that Helm had a disqualifying officer did not have a significant monetary interest in the outcome financial interest. It was not obvious that Helm would derive any for the following reasons: 1) she received a fixed, hourly fee, benefit from the outcome of Gai's appeal,so the alleged financial regardless of her recommendation;2)there was no guarantee the interest was merely speculative. Helm's pecuniary interest was County would retain her in the future;and 3)the County had hired remote,indirect and uncertain. other hearing officers in the past. The County's payment of Hyman was not in itself a violation of due process, because her The court also rejected Gai's contention that administrative hearing financial interest was only speculative or remote and insubstantial. officers must meet the standard of impartiality that applies to a judge. That stricter standard requires disqualification if there is A hearing officer will generally not meet the fair and impartial reasonable doubt that the judge would not be impartial. The court standard if: 1)there is proof of the officer's actual bias;or 2)there Ideclined to apply this standard,because it did not appear to apply is no such proof but the likelihood of actual bias is great. The to administrative hearing otiicers. In addition,the court noted that likelihood of bias is great,the court said,when the interested party administrative decision-makers generally come from the unilaterally controls the hearing officer's selection and payment. icommunity and are likely to have contacts or dealings with parties, Although the court would not express a preference for a mutual especially in a small town like Selma. To hold these citizens to the selection process, it did decide the following three factors were same standard as judges would discourage them from serving as sufficient to cast a reasonable doubt on the Hyman's impartiality: 1) judicial officers and deprive the administrative process of capable she was unilaterally selected and paid for by the party that threatened idecision-makers. Also influencing the court's decision was the fact the deprivation of a constitutionally protected property right;2)the that the Commission was only an advisory body to the Council, County attorney who chose her participated in the hearing;and 3) which was the final decision-maker. there was a complete absence of any restrictions on her selection that i would have ensured a reasonable degree of impartiality. ity Gai v.C of Selma(December 3,1998)68 Cal.App.4th 213,79 Cal.Rptr.2d 910 (5th Dist.) Haas v.County of San Bernardino(February 4, 1999)69 Cal.App.4th 1019,81 Cal.Rptr.2d 900(4th Dist.) Iblarch/April1999 9 IWHITMORE, JOHNSON & BOLANOS - Attorneys at Law r r Review of Recent Public Sector Court Decisions ... Continued DISCRIMINATION: Shorter Pregnancy Leave Is FLSA: Ninth Circuit Denies "Informal" Retaliation I Lawful Claim By: Deborah G. Leon By: Ernest M. Malaspina A collective bargaining agreement with Lucky Stores, Inc.(Lucky) The Seattle SuperSonics, Inc. (Sonics) employed account I made any employee who had been with the store for one year or more executives(AEs)to sell tickets and to staff a ticket information eligible for a leave of absence of up to six months for a non-work booth at the SuperSonics basketball games. In 1991,the Sonics related illness or injury, such as pregnancy, childbirth, or related started to pay the AEs a fixed amount of$2,000 for working medical conditions. An employee who suffered an occupational overtime. Because the tickets for the 1993-94 season were largely ' injury or illness,however,was eligible for a longer leave of absence sold out, Sonics cut back the AEs' workweek and stopped their not to exceed one year. automatic overtime pay. Danielle Dee Spaziario, who had worked for Lucky several years, AE Laura Lambert realized that she had not been paid the full became pregnant in September 1994. She started a pregnancy leave $2,000 for the 1993-94 season and complained to Bob Boustead, in October because of extreme nausea. When she did not return to the ticket sales director. She also called the U.S. Department of i work after her six-month leave expired, Lucky terminated her Labor (DOL) and asked for information. The other AEs i employment. Spaziano then sued Lucky for pregnancy discrimination subsequently complained about the lack of overtime pay. Lambert in violation of California's Fair Employment and Housing Act called the DOL again and then presented her information about (FEHA). overtime requirements to the controller and the payroll manager. The controller indicated that he knew that the Sonics-were FEHA prohibits employment discrimination based on sex,including breaking the law but said the director did not care. He threatened pregnancy, and generally requires employers to grant a leave of to fire Lambert if she insisted on pursuing the overtime issue. absence on account of pregnancy for a reasonable period, not to Lambert's attorney then sent a letter requesting overtime payments. exceed four months. Spaziano argued that she was discriminated Sonics eventually settled Lambert's claim and also compensated against,even though Lucky provided her six months' leave,because other employees for their overtime. workers who had occupational injuries or illnesses were entitled to up I to a year's leave. She relied on an FEHA provision that makes it During the 1994-95 season,the SuperSonics played in Tacoma while unlawful to refuse a pregnant employee the same benefits as other another arena was being built in Seattle. Because the ticket demand employees who arc similarly affected in their ability to work. That was much smaller in Tacoma,the Sonics decided to let the Tacoma I provision,however,did not apply to employers like Lucky who are sales staff handle group sales and discharged nine of the ten Seattle. subject to Title VII of the Civil Rights Act. area staff. The discharged employees were offered severance Although Lucky was not permitted to treat pregnant employees packages if they signed a release of all claims and agreed not to differently than other temporarily disabled employees, the store reapply. All of the AEs declined the package,and Lambert and five other AEs sued,claiming that they were discharged in retaliation for complied with the law by offering the same benefits to all employees complaining about the Sonics' failure to pay overtime in violation who were temporarily disabled by non-industrial causes, including of the Fair Labor Standards Act(FLSA). pregnancy. The fact that Lucky granted a longer leave to any worker !!!! who had an occupational illness or injury did not constitute sex The FLSA makes it unlawful to discriminate against an discrimination. Instead,Lucky's policy was a lawful rule that treated employee" employees differently based only upon whether their injuries or who has filed" a complaint or who has instituted or testified in a illnesses were industrial. proceeding. The AEs had complained informally to a supervisor and had requested information from the DOL, but had not "filed' a formal complaint. Because the plain language of the FLSA prohibits Spaziano also argued that Lucky's policy was discriminatory because retaliation on the grounds that the employee has"filed'a complaint, pregnancy can never be awork-related disability. While it is true that retaliation for voicing an informal complaint did not constitute any pregnancy alone is unlikely to be covered by workers'compensation, violation. The Ninth Circuit recognized that some other circuits had the court pointed out that medical complications of a pregnancy can interpreted FLSA's language to include informal complaints, but be work-related and compensable. nevertheless refused to extend the FLSA beyond its plain meaning. Spaziano v. Lucky Stores, Inc. (January 12, 1999) 59 Cal.AppAth 106, 81 Lambert,et al.Y.Ackerty,et al.(1998)136 F.3d 1018(9th Or.) CalAptr.2d 378(2nd Dist.) 10 MarcWApri11"9 WHITMORE, JOHNSON & BOLANOS a Attorneys at Law Li/Li3r�J 1 Review of Recent Public Sector Court Decisions ... Continued ' PEACE OFFICERS: Dismissed Officer Whose Probationary WORKERS' COMPENSATION: Period Was Extended Did Not Achieve Tenure Courtroom Bailiff Entitled to 4850 Pay By: Eileen S. Dizon By: Jack W. Hughes Jan Cilderman was a Los Angeles Police Officer who was serving a mandatory 18- The Labor Code section 4850 generally gives peace ' month probationary period. According to the Los Angeles City Charter, a officers who incur industrial injuries the right to a one- probationary officer can be terminated based upon written reasons at any time before year paid leave of absence. Excluded from this benefit the end of the probationary period. A Civil Service Commission rule also provides are law enforcement employees who provide mainly that a probationary officer who is absent from duty for more than seven calendar clerical and mechanical support, such as' telephone days,except for vacation time or regular days off,will have the probationary period operators or machinists,and those whose duties do not extended by the number of days the officer has missed. The period is also extended clearly come within the scope of active law by the number of days a probationary officer is on restricted duty because of illness enforcement. ' or pregnancy. When Cilderman entered the Police Academy, he signed a form acknowledging that he had read these provisions and that he understood that the Joezita Biggers worked as a courtroom bailiff for the probationary period could be automatically extended without notice and without an Sutter County Sheriff's office. Although she was not appeal process. a deputy sheriff,she wore the uniform of the sheriff's ' office and carried a weapon,a baton, and handcuffs. Cilderman's probation was extended by 19 days because of sick leave and restricted In order to keep the courtroom secure, she searched duty. Nine days before his extended probation ended,the Chief of Police made a the courtroom,confiscated weapons,and made arrests. tentative decision to terminate based on reports that Cilderman's performance was She also transported prisoners between the courtrooms unsatisfactory. The Chief allowed Cilderman a hearing before the Captain of the and the jail.After she incurred an industrial injury,she Personnel Division,notwithstanding that the City Charter did not require it,so that applied for 4850 leave.The County denied her request Cilderman could respond to his tentative decision. because she was not engaged in active law ' enforcement. Biggers appealed. During the hearing, Cilderman contended that the extension of his probation was invalid because statistics showed that the majority of the officers hired during a six- The court disagreed with the County's contention that ' month period had not had their probation periods extended due to sickness or bailiffs perform more routine, nonhazardous tasks. restricted duty. He claimed that because the Department had not consistently The court noted that a bailiff is armed and uniformed applied the rule that allows for extensions of probationary periods,he had reached and responsible for maintaining courtroom security. tenured status and was entitled to a full evidentiary hearing. The purpose of the workers' compensation law is to provide special benefits to those who perform The Captain/Hearing Officer found that there was substantial evidence that hazardous work on behalf of the public. Biggers came Cilderman's performance was inadequate. He rejected Cilderman's argument that within that category because of her responsibilities to ' the Department had been selective in enforcing probation extensions. Instead, he protect the public against potentially dangerous found that the inconsistent enforcement was due to administrative oversight. An inmates. Although the hazards she faced might not be audit revealed problems with the Department's procedures and methods of record- as great as those faced by sheriffs deputies on patrol, keeping. There was no instance when the Department had intentionally neglected to they were of the same kind. extend a probationary period. The Chief of Police accepted the Captain/Hearing Officer's recommendation that Cilderman be terminated,and Cilderman appealed. The County also relied on the PERS definition of "local safety member" to support its denial of 4850 ' The court agreed with the Captain/Hearing Officer's conclusion that the benefits. The court was not persuaded. Whether Department's uneven application of the rule regarding probation extensions was not bailiffs were PERS"local safety members"depended an abuse of discretion. The unequal treatment resulted from a laxity of enforcement on whether the County had elected to treat them as only,and was not due to unlawful selective enforcement. The court found that the such.The County had no such election under section ' Department had not discriminated against Cilderman. Instead,the court found that 4850. the City had in fact afforded him the due process appropriate to his status as a probationary employee. Biggers v, Workers'Compensation.4ppeals Board(January 21, 1999) 69 Cal.AppAth 431,81 Cal.Rptr.2d 628(3rd Dist.) ' Cilderman Y.City of Las Angeles(November 24, 1998)67 Cal.App.4th 1466,80 Cal.Rptr.2d 20 (2nd Dist.) ' MarchlApril1999 ' WHITMORE, JOHNSON & BOLANOS Attorneys al Law I RYAN Upcoming Events March 19, 1999 Richard Whitmore will speak at the Employee Relations Institute meeting in Sacramento. ' April 29, 1999 Richard Whitmore,Cynthia O'Neill and Michael Westheimer will present a legal update to the San Diego City and County Personnel Officers in Oceanside. May 18 1999 Richard Whitmore will present a legal update to the IPMA in Universal City. ' � tY. May 21, 1999 Richard Whitmore will speak at the League of California Cities City Attorney's Spring Conference ' in Squaw Valley. :.. ...........- J&B and LCF J©inty Present hear 1999 Public erector Employment Law Conference The attorncrys of Whttnliare,3ohnson&Bolanos and:Lileliert, Cassidy &4-Frierson will name together fi_on Thfirsday a Friday.Tub 14 l 1 to present t~lteu 1994.Pu61ic Sector Emplo rrtient Law Coiiferensre at the I�liltoii Hotel in San�randsoo The goal oftlte cci>tference is to_provtde publtc agency officials,managers and professionals practical information and: ttautig#lstwtll enable tle>at to.resolve a wide variety of cutting edge personnel and eiriploymeiit issues Attendees will. receive direct access tom:the Specialized expenence of these tvcro ptibl►c sector:law fizxris through both large and small graup I aes910n!!6:20d a Town l s l style:question and answer.penod' For.detailed:�nferencejnformation.watch for upcoming tnatliags ar telephan8 us at f 5E3-941-9333 .. I This newsletter is published by wliiimore.Johnson & Bolanos for its clientele and other individuals and entities interested in developments in public sector labor relations. To be added to our mailing list.please call(650)941-9333 or fax us ai(650)941-9476. The;' iormarion cr:^ta+ned in.h.s p hl;ca-'ion nfor„!ariona.onh; =not i wnrled io constitute proress.on,?!roursei or al Iega?opinion.Aithough t+e consider This communication rn he.r.�^c. ..�'arc:aye ri,,-- s .�_:.t .e;ir:Ccr.r,^..?rr,u ,e.�ss:,...;?;:?:i••slra^.-..Pros ded a i„rhr-+peGf:E 1,?CIS t our alrumdt Ea:+?as,^ion a,ciutin r+-.it:re m,our needs- WHITti40RE,JOHN50N & 130LANOS .A I T O R ` E i s A ' t ' W BULK RATE 2570 W."d Camino Real,Suite 6010•,,ioUrla n Wien•.CA 94040 U.S. POSTAGE PAID Mtn View, CA Permil No. 228 I I I I Copwri h.l. l9�pi,1i'h;r.._,:rr..Lrir!Es+n!&B,Av r. Hfyn['J?.1!'+r!?ern!iis rirr ra rel,rodnre ah or parr!a'ibis puhGrrrrirn shun&i he addressed!n rhr .Edi:or. SEP-09-1999 10:51 WHITMORE,JOHNSON&BOLANOS 6509419476 P.02i02 TO CITY, TO LEGAL COUNSEL Ray Silver, City Administrator Richard S. Whitmore, Esq. City of Huntington Beach Whitmore, Johnson & Bolanos 2000 Main Street 2570 W. Et Camino Real, Suite 600 Post Office Box 190 Mountain View, CA 94040 Huntington Beach, CA 92648 Telephone: (714)536-5575 (050)941-9333 Facsimile_ (714)536-5233 (650) 90-9476 SECTION 17. Entire Agent, This Agreement contains the entire agreement between the parties respecting the subject matter of this Agreement and supersedes all prior understandings and agreements, whether oral or in writing. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first above written, WHITMORE, JOHNSON & SOLANOS CITY OF HUNTINGTON BEACH, a general partnership a municipal corporation of the State at California By: - Richard S.Whitmore Mayor General Partner ATTEST: City Cleric INITIATED, REVIEWED AND APPROVED: APPROVED AS TO FORM: City Administrator City Attorney 6 apedls�WL1►t+in:x99.9/8199 TOTAL P-02 JUL-01-1999 12:03 WHITMDRE,JOHNSON&BOLANOS 6509419476 P.02i02 TO CITY: TO LEGAL COUNSEL Ray Silver, City Administrator Richard S. Whitmore, Esq. City of Huntington Beach Whitmore, Johnson & Bolanos 2000 Main Street 2570 W. El Camino Real, Suite 600 Post Office Box 190 Mountain View, CA 94040 Huntington Beach, CA 92648 Telephone: (714) 536-5575 (415) 941-9333 Facsimile: (714) 536-5233 (415) 941-9476 SECTION 17. Enti[e Agreement. This Agreement contains the entire agreement between the parties respecting the subject matter of this Agreement and supersedes all prior understandings and agreements, whether oral or in writing. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first above written. WHITMORE, JOHNSON & BOLANOS CITY OF HUNTINGTON BEACH, a general corporation a municipal corporation of the State of California � By: Richard $, itmore Mayor ItS: (circle one)Chairman/President/Partner ATTEST: City Clerk INITIATED, REVIEWED AND APPROVED: APPROVED AS TO FORM: tea,.., ! City Adml istrator City Attorney V-.- (4 1 6 $greencgauwhiwv"-W30199 TOTAL P.02