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HomeMy WebLinkAbout2011-07-18_cityofsanrafael_75be224bd9a37b67f6523951137fbe47CITY OF Agenda Item No: 3H Meeting Date: July 18, 2011 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: Management Services Prepared by: Leslie Loomis, Human Resources Director (SG) City Manager Approval: SUBJECT: MEMORANDUM OF UNDERSTANDING (MOU) PERTAINING TO COMPENSATION AND WORKING CONDITIONS FOR EMPLOYEES REPRESENTED BY THE SAN RAFAEL FIRE CHIEF OFFICERS' ASSOCIATION (JULY 1, 2011 THROUGH JUNE 30, 2013) RECOMMENDATION: Adopt resolution BACKGROUND: Since 2007, the City of San Rafael has had to make significant budget balancing decisions to deal with the impacts of the national recession. Some of the personnel -related steps taken to help address the City's deficit include work furloughs, an early retirement program, a hiring freeze, layoffs and other actions. At the July 5, 2011 meeting, the City Council adopted the budget for FY 2011-2012 which included a 4% total compensation reduction across all bargaining units for the term of the upcoming labor contracts. The key issues of current negotiations have centered around pension reform and other more immediate cost -reducing measures and revenue generating programs. The current MOU between the City and SRFCOA covers a three year period from July 1, 2008 to June 30, 2011. Negotiation meetings were held with representatives from both the Association and the City over a period extending from April to June 2011. Representatives from both the City and SRFCOA recognize the burden of the rising cost of employer pension contributions and other employee compensation costs and have worked diligently throughout this negotiation process to address this issue. The draft contract terms summarized below outline concessions made by SRFCOA to participate in the 4% total compensation reduction requested by the Council and meet the City's goals for pension cost reduction. ANALYSIS / SUMMARY: The following reflects highlights of the tentative agreement of the City and San Rafael Fire Chief Officers' Association on a two-year contract that is consistent with the guidelines authorized by the City Council 1. Term of the Agreement: July 1, 2011 through June 30, 2013 (2 -year contract) 2. Total Compensation Reduction: 4% 3. Pension Reform: Establish a new -hire pension tier as follows: Safety employees hired on or after July 1, 2011 will receive an MCERA retirement benefit at the formula 3%@55, calculated based on the average of their three highest years of compensation, with a 2% COLA benefit cap. FOR CITY CLERK ONLY File No.: Council Meeting: Disposition: SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 Any savings realized in year two of the Agreement from reduced employer pension contributions will be credited back on a dollar -for -dollar basis to the bargaining unit in the form of restored holiday payments on the December holiday pay check. 4. Compensation Reduction (Holiday Pay): During the first year of this Agreement, employees will not be paid for 9 holidays. Employees will not receive a June holiday check and will receive a December holiday check compensating them for 4 holidays. During the second year of this Agreement,'employees will not be paid for 7 holidays. All holiday pay owed in the second year will be paid in a December holiday pay check. 5. Vacation Conversion: Employees will no longer be eligible to request a conversion of vacation time to a cash payment. A four percent across-the-board compensation reduction represents a significant understanding of the City's financial condition by its employees. Considerably more staffing reductions would need to have been made without the agreement of our City's employees to reduce their compensation. By doing so, the employees played a very significant role in reducing the impact to City services. FISCAL IMPACT: As stated above, the City Council approved the Fiscal Year 2011-12 budget including a 4% total compensation reduction for all bargaining units. This reduction was projected to save approximately $1.4 million in overall costs. This bargaining unit agreement reflects a 4% total compensation reduction and is therefore a part of the overall $1.4 million in personnel cost savings. ATTACHMENTS: MOU between City of San Rafael and SRFCOA for July 1, 2011 to June 30, 2013 OPTIONS: • Accept staff's recommendation and adopt the resolution • Seek additional information from staff and postpone a decision on this Memorandum of Understanding • Reject recommendation and direct the City's negotiations team back to the table with this bargaining group with a change in authority. ACTION REQUIRED: Adopt the resolution approving the Memorandum of Understanding with the SRFCOA for a period of two years (July 1, 2011 through June 30, 2013). RESOLUTION A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING A MEMORANDUM OF UNDERSTANDING (MOU) PERTAINING TO COMPENSATION AND WORKING CONDITIONS FOR EMPLOYEES REPRESENTED BY THE SAN RAFAEL FIRE CHIEF OFFICERS' ASSOCIATION (JULY 1, 2011 THROUGH JUNE 30, 2013) WHEREAS, the CITY has had to make significant budget balancing decisions to deal with the impacts of the ongoing national recession; and WHEREAS, on July 5, 2011, the City Council adopted the budget for FY 2011-2012 which included a 4% total compensation reduction across all bargaining units; and WHEREAS, the City of San Rafael and representatives of SRFCOA have met and conferred in good faith with regard to wages, hours and working conditions in accordance with the provisions of the Meyers-Milias-Brown Act; and WHEREAS, a Memorandum of Understanding pertaining to the two year period from July 1, 2011 through June 30, 2013 has been executed by duly authorized representatives for both parties. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1: From and after the date of adoption of this Resolution, the City of San Rafael and San Rafael Fire Chief Officers' Association shall utilize the Memorandum of Understanding for the period beginning, July 1, 2011, attached hereto, as the official document of reference respecting compensation and working conditions for employees represented by SRFCOA. Section 2: The schedules describing classes of positions and salary ranges are attached to said Memorandum of Understanding and, together with the Memorandum of Understanding itself, are herby adopted and shall'be attached hereto and incorporated in full. I, Esther C. Beirne, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of the City of San Rafael, held on Monday, the 18th of July, 2011, by the following vote, to wit: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: Esther C. Beirne, City Clerk MEMORANDUM OF UNDERSTANDING between CITY OF SAN RAFAEL and SAN RAFAEL FIRE CHIEF OFFICERS'ASSOCIATION JULY 1, 2011 - JUNE 305 2013 TABLE OF CONTENTS 1 GENERAL PROVISIONS.............................................................................................................................4 1.1 INTRODUCTION...................................................................................................................................................4 1.1.1 SCOPE OF AGREEMENT.................................................................................................................................. 4 1.1.2 TERM OF MOU............................................................................................................................................... 4 1.2 RECOGNITION.....................................................................................................................................................4 1.2.1 BARGAINING UNIT...........................................................................................................................................4 1.2.2 AVAILABLE COPIES.........................................................................................................................................5 1.2.3 CITY RECOGNITION......................................................................................................................................... 5 1.2.4 EMPLOYEE REPRESENTATIVES......................................................................................................................5 1.3 DISCRIMINATION.................................................................................................................................................5 1.3.1 IN GENERAL.................................................................................................................................................... 5 1.3.2 ASSOCIATION DISCRIMINATION...................................................................................................................... 5 1.4 INSPECTION OF MEMORANDUM OF UNDERSTANDING.......................................................................................5 1.5 EXISTING LAWS, REGULATIONS & POLICIES....................................................................................................5 1.6 STRIKES & LOCKOUTS.......................................................................................................................................5 1.7 SEVERABILITY....................................................................................................................................................5 1.8 PREVAILING RIGHTS..........................................................................................................................................6 1.9 MANAGEMENT RIGHTS.......................................................................................................................................6 1.10 FULL UNDERSTANDING, MODIFICATION, WAIVER..........................................................................................7 1.10.1 MODIFICATION/WAIVER................................................................................................................................7 1.10.2 EFFECTIVE DATES........................................................................................................................................7 1.10.3 JOINT REPRESENTATION..............................................................................................................................7 2 MMBA.................................................................................................................................................................7 2.1 DUES DEDUCTION..............................................................................................................................................7 2.2 RELEASE TIME................................................................................................................................................... 8 3 COMPENSATION...........................................................................................................................................8 3.1 GENERAL WAGES & COMPENSATION...............................................................................................................8 3.1.1 COMPENSATION GOAL & DEFINITIONS.......................................................................................................... 8 3.1.2 COMPENSATION SURVEYS............................................................................................................................. 9 3.2 SALARY STEP INCREASE...................................................................................................................................9 3.3 PAY CHECK DATES.............................................................................................................................................9 3.4 ADDITIONAL PAY................................................................................................................................................9 3.4.1 EDUCATION INCENTIVE PROGRAM.................................................................................................................9 3.4.2 UNIFORM ALLOWANCE................................................................................................................................. 10 3.4.3 BOOT ALLOWANCE....................................................................................................................................... 10 4 BENEFITS ....... :....................................................................................................................................... 4.1 JOINT BENEFITS COMMITTEE..........................................................................................................................10 4.2 HEALTH & WELFARE....................................................................................................................................... 10 4.2.1 HEALTH & DISABILITY INSURANCE......................................................... ERROR! BOOKIIIARK NOT DEFINED. 4.2.2 FULL FLEX CAFETERIA PLAN........................................................................................................................ 10 4.2.3 RETIREE'S HEALTH INSURANCE................................................................................................................... 10 4.2.4 CONTRIBUTIONS INTO A RETIREE HRA....................................................................................................... 11 4.2.5 DEFERRED COMPENSATION PLAN............................................................................................................... 11 4.2.6 FLEXIBLE SPENDING ACCOUNT FOR HEALTH AND DEPENDENT CARE REIMBURSEMENT (125) ................ 11 4.3 LIFE INSURANCE.............................................................................................................................................. 11 4.4 DENTAL PLAN.................................................................................................................................................. 12 4.5 RETIREMENT.....................................................................................................................................................12 4.5.1 CITY PAID EMPLOYEE RETIREMENT............................................................................................................. 12 4.5.2 RETIREMENT PLANS..................................................................................................................................... 12 4.5.3 PENSION COSTS..................................................................................... ERROR! BOOKMARK NOT DEFINED. 4.5.4 MEMBER COST OF LIVING RATES................................................................................................................ 12 5 LEAVES.............................................................................................................................................................13 5.1 SICK LEAVE...................................................................................................................................................... 13 1 SRFCO MOU 2011-2013 5.1.1 POLICY STATEMENT..................................................................................................................................... 13 5.1.2 ADMINISTRATION OF SICK LEAVE................................................................................................................. 13 5.1.3 SICK LEAVE ACCRUAL.................................................................................................................................. 13 5.1.4 SICK LEAVE SERVICE CREDIT OPTION........................................................................................................ 13 5.1.5 SICK LEAVE PAYOFF.....................................................................................................................................13 5.2 VACATION LEAVE............................................................................................................................................. 14 5.2.1 POLICY STATEMENT.....................................................................................................................................14 5.2.2 RATE OF ACCRUAL....................................................................................................................................... 14 5.2.3 ADMINISTRATION OF VACATION LEAVE........................................................................................................ 15 5.2.4 VACATION ACCRUAL CAP.............................................................................................................................15 5.2.5 ONE-TIME VACATION BUY-DOWN................................................................................................................15 5.2.6 VACATION PAYOFF....................................................................................................................................... 16 5.2.7 VACATION CONVERSION......................................................................... ERROR! BOOKMARK NOT DEFINED. 5.3 HOLIDAYS.........................................................................................................................................................16 5.3.1 DAYS OBSERVED.......................................................................................................................................... 16 7.5 HOURS FOR THESE FLOATING HOLIDAYS ARE AUTOMATICALLY ADDED TO AN EMPLOYEES FLOATING HOLIDAY ACCRUALON A SEMI-ANNUAL BASIS............................................................................................................................ 16 5.3.2 HOLIDAY PAY................................................................................................................................................ 16 5.4 OTHER LEAVE.................................................................................................................................................. 17 5.4.1 ADMINISTRATIVE LEAVE............................................................................................................................... 17 5.4.2 BEREAVEMENT LEAVE...........................................................................................................I....................... 17 5.4.3 JURY DUTY...................................................................................................................................................17 5.4.4 WORKERS COMPENSATION LEAVE..............................................................................................................17 5.4.5 MILITARY LEAVE........................................................................................................................................... 17 5.4.6 LEAVE OF ABSENCES WITHOUT PAY........................................................................................................... 17 5.4.7 FAMILY MEDICAL LEAVE............................................................................................................................... 18 5.4.8 CATASTROPHICLEAVE.................................................................................................................................18 5.4.9 ABSENCE WITHOUT AUTHORIZED LEAVE.................................................................................................... 18 6 TERMS & CONDITIONS OF EMPLOYMENT...................................................................................18 6.1 WORK WEEK.................................................................................................................................................... 18 6.2 HOURLY RATE.................................................................................................................................................. 18 6.3 OVERTIME...........................................:.............................................................................................................19 6.4 SPECIALTY ASSIGNMENT.................................................................................................................................19 6.5 SELECTION....................................................................................................................................................... 19 6.5.1 SELECTION PROCESS................................................................................................................................... 19 6.5.2 REFERRAL PROCESS.................................................................................................................................... 19 6.5.3 BATTALION CHIEF QUALIFICATIONS............................................................................................................. 19 6.6 PROBATIONARY PERIOD.................................................................................................................................. 19 6.6.1 PURPOSE OF PROBATION............................................................................................................................. 19 6.6.2 LENGTH OF PROBATIONARY PERIOD........................................................................................................... 19 6.6.3 REJECTION DURING PROBATION.................................................................................................................. 20 6.6.4 EXTENSION OF PROBATIONARY PERIOD...................................................................................................... 20 6.6.5 NOTIFICATION OF EXTENSION OR REJECTION.............................................................................................20 6.6.6 REGULAR STATUS........................................................................................................................................ 20 6.6.7 PROMOTION OF PROBATIONARY EMPLOYEE............................................................................................... 20 6.6.8 UNSUCCESSFUL PASSAGE OF PROMOTIONAL PROBATION.........................................................................20 6.7 PERSONNEL RULES & REGULATIONS.............................................................................................................20 6.7.1 DRUG & ALCOHOL POLICY........................................................................................................................... 20 6.7.2 OUTSIDE EMPLOYMENT POLICY...................................................................................................................20 ASSOCIATION MEMBERS SHALL ABIDE BY CITY'S POLICY DATED ,LUNE 27, 2007 .....................................................21 6.7.3 TEMPORARY LIGHT (MODIFIED) DUTY POLICY STATEMENT....................................................................... 21 6.7.4 NO SMOKING/TOBACCO USE POLICY..........................................................................................................21 6.7.5 MEDICAL STANDARDS.................................................................................................................................. 21 6.8 MISCELLANEOUS..............................................................................................................................................21 6.8.1 RETURN OF CITY EQUIPMENT......................................................................................................................21 6.8.2 POLITICAL ACTIVITY......................................................................................................................................21 6.8.3 STAFFING LEVELS.........................................................................................................................................21 2 SRFCO MOU 2011-2013 6.8.4 CAREER DEVELOPMENT PROGRAM ............................................................................................................. 2l 7 PROCEDURES ............................................................................................................................................... 2l 7.1 DEMOTION & SUSPENSION .............................................................................................................................. 2| 71.1 DEMOTION ..................................................................................................................................................... 22 7.1.2 SUSPENSION ................................................................................................................................................. 22 7.3 TERMINATION OFEMPLOYMENT ...................................................................................................................... 22 72.1 RESIGNATION ................................................................................................................................................ 22 7.2.2 TERmw TlOWDEM0TI0N-LACK OfWORK ORFUNDS ............................................................................... 22 72.3 7lE7m0NATION - DISCIPLINARY REASONS ..................................................................................................... 22 7.24 TERMINATION ' PROBATION .......................................................................................................................... 22 7.2.5 RETIREMENT ................................................................................................................................................. 22 7.3 DISCIPLINARY ACTION ..................................................................................................................................... 23 73.1 AUTHORITY ................................................................................................................................................... 23 73.2 DEFINITION .................................................................................................................................................... 23 7.3.3 CAUSES FOR DISCIPLINARY ACTION ............................................................................................................ 23 7.3.4 APPEALS ....................................................................................................................................................... 23 73.4(1 PROCEEDING HEARD 8YCITY MANAGER ................................................................................................. 24 73.5 CITY MANAGER AND ARBITRATION ............................ ....................................................................... ....... .24 7~4 GRIEVANCE PROCEDURE ..................................................... ...................................................... .................... 24 7.4.1 DEFINITION .................................................................................................................................................... 24 7.4.2 INITIAL DISCUSSION ...................................................................................................................................... 24 7.4.3 REFERRAL TOCITY MANAGER ..................................................................................................................... 24 7.4.4 CITY MANAGER AND ARBITRATION .............................................................................................................. 25 7.5 FURLOUGH PROGRAM ..................................................................................................................................... 25 7.6 REDUCTION |NFORCE ...................................................................................................................................... 25 7.6.1 AUTHORITY ................................................................................................................................................... 25 7.6.2 kk}TICE---------------------------------------------------25 70.3 ORDER 0FLAYOFF ....................................................................................................................................... 25 784 SENIORITY -------------------------------------------------25 76.5 BUMPING RIGHTS ......................................................................................................................................... 6 7.6.0 TRANSFER RIGHTS ....................................................................................................................................... 26 7.7 -------------_--------------------------------.26 7.7.1 GENERAL GUIDELINES ............................................................................................................... .................. 26 7.7.2 RIGHT To ----------------------------------------26 7.7.3 TIME LIMITS ................................................................................................................................................... 26 T74AK4ILAaIL/T(-----------------------------------------------..26 7,7.5 PROBATIONARY STATUS ............................................................................................................................... 27 LisT OF EXHIBITS Exhibit Exhibit B Exhibit ouFcoMnozon-2m|y Salary Schedules for July 1, 2011 — June 30, 2013 Furlough Plan Firefighters' Bill ofRights Memorandum MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF SAN RAFAEL AND SAN RAFAEL FIRE CHIEF OFFICERS' ASSOCIATION This Memorandum of Understanding is entered into pursuant to the Meyers-Milias-Brown Act (Section 3500, et seq. the Government Code of the State of California). The San Rafael Fire Chief Officers' Association and representatives of the City of San Rafael have met and conferred in good faith regarding wages, hours and other terms and conditions of employment of employees in said representative unit, and have freely exchanged information, opinions and proposals, and have reached an agreement on all matters relating to the employment conditions and the employer-employee relations of such employees. This Memorandum of Understanding shall be presented to the City Council of the City of San Rafael as the joint recommendation of the undersigned for salary and employee benefit adjustments for the period commencing July 1, 2011 and ending June 30, 2013. When ratified by the City Council, this Memorandum of Understanding shall be binding upon the San Rafael Fire Chief Officers' Association, the employees it represents, and the City of San Rafael. I GENERAL PROVISIONS 1.1 INTRODUCTION 1.1.1 Scope of Agreement The salaries, hours, fringe benefits and working conditions set forth have been mutually agreed upon by the designated bargaining representatives of the City of San Rafael (herein -after called "CITY") and the San Rafael Fire Chief Officers' Association (herein -after called 'ASSOCIATION") and shall apply to all employees of the City working in the classifications and bargaining unit set forth as follows: a. Battalion Chief In accepting employment with the City of San Rafael, each employee agrees to be governed by and to comply with the City's Personnel Ordinance, City's Personnel Rules and Regulations, City's Employer -Employee Resolution, City's Administrative Procedures, and Fire Department Rules and Regulations, General Orders and Procedures. 1.1.2 Term of MOU This agreement shall be in effect from July 1, 2011 through June 30, 2013. 1.2 RECOGNITION 1.2.1 Bargaining Unit City hereby recognizes Association as the bargaining representative for purpose of establishing salaries, hours, fringe benefits and working conditions for all employees within the San Rafael Fire Chief Officers' Association Bargaining Unit which includes the following: a. Battalion Chief 4 SRFCO MOU 2011-2013 1.2.2 Available Copies Both the City and the Association agree to keep duplicate originals of this agreement on file in a readily accessible location available for inspection by any City employee, or member of the public, upon request. 1.2.3 City Recognition The Municipal Employee Relations Officer of the City of San Rafael, or any person or organization duly authorized by the Municipal Relations Officer, is the representative of the City of San Rafael, hereinafter referred to as the "City" in employer-employee relations, as provided in Resolution No. 12189 adopted by the City Council on February 5, 2007. 1.2.4 Employee Representatives The Association shall, by written notice to the City Manager, designate certain of its members as Employee Representatives. 1.3 DISCRIMINATION 1.3.1 In General The parties to this contract agree that they shall not, in any manner, discriminate against any person whatsoever because of race, color, age, religion, ancestry, national origin, sex, sexual preference, marital status, medical condition or disability. Any employee who believes they are being discriminated against should refer to the City of San Rafael's Harassment Policy for the process of receiving an internal administrative review of their complaint. This administrative procedure shall be used as the internal complaint procedure in lieu of the grievance procedure outlined in this MOU. 1.3.2 Association Discrimination No member, official, or representative of the Association shall, in any way suffer any type of discrimination in connection with continued employment, promotion, or otherwise by virtue of membership in or representation of Association. 1.4 INSPECTION OF MEMORANDUM OF UNDERSTANDING Both the City and the Association agree to keep duplicate originals of this Memorandum on file in a readily accessible location available for inspection by any employee or member of the public upon request. 1.5 EXISTING LAWS, REGULATIONS & POLICIES This Memorandum is subject to all applicable laws. 1.6 STRIKES & LOCKOUTS During the term of this Memorandum of Understanding, the City agrees that it will not lock out employees and the Association agrees that it will not agree to encourage, or approve any strike or slow down growing out of any dispute relating to the terms of this Agreement. The Association will take whatever lawful steps are necessary to prevent any interruption of work in violation of this Agreement. 1.7 SEVERABILITY SRFCO MOU 2011-2013 If any article, paragraph or section of this Memorandum shall be held to be invalid by operation of law, or by any tribunal or competent jurisdiction, or if compliance with or any enforcement of any provision hereof be restrained by such tribunal, the remainder of this Memorandum shall not be affected thereby, and the parties shall, if possible, enter into meet and confer sessions for the sole purpose of arriving at a mutually satisfactory replacement for such article, paragraph or section. 1.8 PREVAILING RIGHTS All matters within the scope of meeting and conferring which have previously been adopted through rules, regulations, ordinances or resolutions, which are not specifically superseded by the M.O.U., shall remain in full force and effect throughout the term of this Agreement. 1.9 MANAGEMENT RIGHTS The City reserves, retains, and is vested with, solely and exclusively, all rights of management which have not been expressly abridged by specific provision of this Memorandum of Understanding or by law to manage the City, as such rights existed prior to the execution of this Memorandum of Understanding. The sole and exclusive rights of management, as they are not abridged by this Agreement or by law, shall include, but not be limited to, the following rights: 1. To manage the City generally and to determine the issues of policy. 2. To determine the existence of facts which are the basis of the management decision. 3. To determine the necessity of any organization or any service or activity conducted by the City and expand or diminish services. 4. To determine the nature, manner, means, technology and extent of services to be provided to the public. 5. Methods of financing. 6. Types of equipment or technology to be used. 7. To determine and/or change the facilities, methods, technology, means and size of the work force by which the City operations are to be conducted. 8. To determine and change the number of locations, re -locations and types of operations, processes and materials to be used in carrying out all City functions including, but not limited to, the right to contract for or subcontract any work or operation of the City. 9. To assign work to and schedule employees in accordance with requirements as determined by the City, and to establish and change work schedules and assignments. 10. To relieve employees from duties for lack of work or similar non -disciplinary reasons. 11. To establish and modify organizational productivity and performance programs and standards. 12. To discharge, suspend, demote or otherwise discipline employees for proper cause in accordance with the provisions and procedures set forth in City Personnel Rules and Regulations, the Firefighters Procedural Bill of Rights, and this Memorandum of Understanding. 13. To determine job classifications and to reclassify employees. 14. To hire, transfer, promote and demote employees for non -disciplinary reasons in accordance with this Memorandum of Understanding and the City's Rules and Regulations. 15. To determine policies, procedure and standards for selection, training and promotion of employees. 6 SRFCO MOU 2011-2013 16. To establish employee performance standards including but not limited to, quality and quantity standards; and to require compliance therewith. 17. To maintain order and efficiency in its facilities and operations. 18. To establish and promulgate and/or modify rules and regulations to maintain order and safety in the City which are not in contravention with this Agreement. 19. To take any and all necessary action to carry out the mission of the City in emergencies. The City and Association agree and understand that if, in the exercise of any of the rights set forth above, the effect of said exercise of rights by the City impacts an area within the scope of representation as set forth in the Meyers/Milias/Brown Act, case law interpreting said acts, and/or Federal law, the City shall have the duty, to meet and confer with the Association regarding the impact of its decision/exercise of rights. 1.10 FULL UNDERSTANDING, MODIFICATION, WAIVER 1.10.1 ModificationlWaiver Except as specifically otherwise provided herein, it is agreed and understood that each party hereto voluntarily and unqualifiedly waives its right, and agrees that the other shall not be required to meet and confer with respect to any subject or matter covered herein, nor as to wages or fringe benefits during the period of the term of this Memorandum. The foregoing shall not preclude the parties hereto from meeting and conferring at any time during the term of this Agreement with respect to any subject matter within the scope of meeting and conferring for a proposed Memorandum of Understanding between the parties to be effective on or after July 1, 2013. 1.10.2 Effective Dates This Agreement will be in effect from July 1, 2011 through June 30, 2013. It shall be automatically renewed from year to year thereafter unless either party shall have notified the other, in writing, at least sixty (60) days prior to the annual anniversary of the above date that it desires to modify the Memorandum. In the event that such notice is given, negotiations shall begin no later than thirty (30) days prior to the anniversary date. 1.10.3 Joint Representation The parties jointly represent to the City Council that this Memorandum of Understanding sets forth the full and entire understanding of the parties regarding the matters set forth herein. 2 MMBA 2.1 DUES DEDUCTION Payroll deduction for membership dues shall be granted by the City to the Association. The following procedures shall be observed in the withholding of employee earnings: A. Payroll deductions shall be for a specified amount in uniform as between employee members of the Association and shall not include fines, fees and/or assessments. Dues deductions shall be made only upon the employees' written authorization. B. Authorization, cancellation or modifications of payroll deduction shall be made upon forms provided or approved by the City Manager or his/her designee. The voluntary payroll deduction authorization shall remain in effect until employment with the City is 7 SRFCO MOU 2011-2013 terminated or until canceled or modified by the employee by written notice to the City Manager or his/her designee. Employees may authorize dues deductions only for the organization certified as the recognized employee organization of the classification to which such employees are assigned. C. Amounts deducted and withheld by the City shall be transmitted to the officer designated in writing by the Association as the person authorized to receive such funds, at the address specified. D. The employees earnings must be sufficient, after all other required deductions are made, to cover the amount of the deductions herein authorized. When an employee is in a non -pay status for an entire pay period, no withholdings will be made to cover that pay period from future earnings, nor will the employee deposit the amount with the City which would have been withheld if the employee had been in a pay status during that period. In the case of an employee who is in a non -pay status during a part of the pay period and the salary is not sufficient to cover the full withholding, no deductions shall be made. In this connection, all other required deductions have priority over the employee organization deduction. E. The Association shall file with the City an indemnity statement wherein the Association shall indemnify, defend, and hold the City harmless against any claim made and against any suit initiated against the City on account of check -off of Association dues, assessments and other payments to the Association. In addition, the Association shall refund to the City any amounts paid to it in error upon presentation of supporting evidence. 2.2 RELEASE TIME The City shall allow a reasonable number of Association members time off without loss of compensation or other benefits when formally meeting and conferring with representatives of this City on matters within the scope of representation. Reasonable time off without loss of compensation or other benefits shall also be granted to members of the Association to participate in and prepare for grievances. 3 COMPENSATION 3.1 GENERAL WAGES & COMPENSATION Salary increases for all bargaining unit positions are established in the salary table attached as Exhibit A and included as part of this MOU. For the term of this agreement, the following base salary increases shall be applied on the identified effective date: July 1, 2011 0.0% July 1, 2012 0.0% 3.1.1 Compensation Goal & Definitions It is the goal of the City Council to try to achieve a total compensation package for all employees represented by the Association in an amount equal to the following: The average, plus one dollar, of the total compensation paid to the same or similar classifications in the.following ten (10) cities/districts: Alameda, Alameda County, 8 SRFCO MOU 2011-2013 Fairfield, Hayward, Napa, Novato Fire District, Santa Rosa, Southern Marin Fire District, and South San Francisco, Vallejo; and, 2. The highest total compensation paid to the same or similar classifications in agencies in Marin County. Total Compensation for survey purposes shall be defined as: Top step salary (excluding longevity pay steps), educational incentive pay, holiday pay, uniform allowance, employer paid deferred compensation (except for such portion that may be part of employee cafeteria plan), employer's contribution towards. employees' share of retirement, employer's retirement contribution, employer paid contributions toward insurance premiums for health, life, long term disability, dental and vision plans, and employer paid cafeteria/flexible spending accounts. 3.1.2 Compensation Surveys To measure progress towards the above -stated goal, the City and the Association will jointly survey the benchmark position of Battalion Chief three (3) months before the expiration of this contract. Identified benchmark positions from other agencies include positions that are filled as well as those that may be unfilled, so long as the benchmark position is identified by the survey agency as being on the salary schedule and having a job class description. Other city/agency positions are established as benchmark positions in San Rafael's compensation survey based 'upon similar work and similar job requirements. Survey data will include all salary and benefit increases, as defined in 'total compensation' for the purpose of measuring progress towards the goal. The City and the Association shall review the benchmark and related survey data for accuracy and completeness. 3.2 SALARY STEP INCREASE An employee shall be considered for a step increase annually until the top step has been, reached. Advancement to a higher salary within a salary step schedule may be granted for continued satisfactory service by the employee in the performance of his/her duties. Salary step advancement shall be made only upon the recommendation of the Fire Chief, with the approval of the City Manager or his/her designee, and are not automatic, but based on documented, acceptable work performance. Accelerated salary step increases may be granted an employee based upon the recommendation of the Fire Chief and approval of the City Manager for exceptional job performance. Employees shall be evaluated annually based on the evaluation program adopted by the City Council in October of 1996 and incorporated by reference herein. 3.3 PAY CHECK DATES City employees are paid twice per month on the 15th and the last working day of the month. When a pay day falls on a holiday, the pay day will be transferred to the following day of regular business unless the Finance Office is able to complete the payroll by the previous work day. The method of distributing the payroll shall be established by the Finance Director. 3.4 ADDITIONAL PAY 3.4.1 Education Incentive Program The Educational Incentive for all employees represented by this Association is included in the base salary. 0 [.lawelmcfl8 111&0193 3.4.2 Uniform Allowance Uniform members of the Fire Department, represented by this Association, shall receive a uniform allowance in the amount of $450.00 at the completion of each six months of service ending June 1St and December 1St. A pro -ration at the rate of $75.00 per month may be given for a portion of the first and last six months of service upon recommendation of the Department Head and approval of the City Manager. 3.4.3 Boot Allowance Uniform members of the Fire Department, represented by this Association, shall be entitled to a maximum of $160 every two fiscal years for a boot allowance. The employee is responsible for purchasing safety boots and submitting a receipt for reimbursement. The boots must be purchased for City use only and must adhere to safety requirements. 4 BENEFITS 4.1 JOINT BENEFITS COMMITTEE Both parties agree to continue to utilize the Joint Benefits Committee for on-going review of benefit programs, cost containment, and cost savings options. The committee shall include representatives from all bargaining groups. 4.2 HEALTH & WELFARE 4.2.1 Full Flex Cafeteria Plan Effective January 1, 2010 the City implemented a full flex cafeteria plan for active employees in accordance with IRS Code Section 125. Active employees shall receive a monthly flex dollar allowance to purchase benefits under the full flex cafeteria plan. The monthly flex dollar allowance effective January 1, 2010 shall be $765.50 which includes the California Public Employees' Medical and Hospital Care Act (PEMHCA) contribution hereby referred to as the PEMHCA minimum contribution for an Employee, an Employee & One Dependent or an Employee & Two or More Dependents. The monthly flex dollar allowance may be used in accordance with the terms of the cafeteria plan to purchase benefits such as medical, vision, supplemental life and disability insurance coverage, taking flex dollars in the form of cash to contribute to a deferred compensation (457) plan, or any other benefits the City may offer from time to time, or may be converted to taxable income. If an employee has health insurance coverage through a spouse/dependent or a former employer and provides proof of this coverage to the Human Resources Department, the employee may elect to waive the City's health insurance coverage and elect to use flex dollars in accordance with the terms of the cafeteria plan. Effective Januar _ 1_,_201 0, the City shall be responsible for paying premiums for a life insurance and Accidental Death and Dismemberment (AD&D) policy for each employee. The life and AD&D policy shall provide a $5,000 life insurance and a $5,000 AD&D benefit. 4.2.2 Retiree's Health Insurance Employees represented by the Association who retire from the Marin County Retirement System, subject to Marin County Employee Retirement Association procedures and regulations and applicable 1937 Act laws that govern such plans, are eligible to continue in the City's retiree 10 SRFCO MOU 2011-2013 group health insurance program offered through PEMHCA. The City's contribution towards retiree coverage shall be the PEMHCA minimum contribution as determined by CalPERS on an annual basis. A. Longevity Payment for Employees hired on or before January 1, 2010 The City shall make a monthly longevity payment into a Retiree Healthcare Reimbursement Trust (Retiree HRA Trust) on behalf of employees hired before January 1, 2010 and who retire from the City of San Rafael as described in this Section. The City's monthly contribution to the Retiree HRA trust shall be the difference between the premium cost of coverage for any two party rate minus the PEMHCA minimum contribution. The City's total payment (PEMHCA minimum contribution plus cost,of retiree premiums) shall not exceed $557 per month. The City's contribution towards a retiree's Retiree HRA Trust account shall continue for the lifetime of the retiree and retiree's spouse, in accordance with PEMHCA eligibility provisions for coverage. B. Employees hired by the City on or after January 1, 2010 and who meet the eligibility requirements for retiree health insurance are eligible to continue in the City's group health insurance program. The City's maximum contribution towards retiree coverage under this subsection shall be the PEMHCA minimum contribution as determined by CalPERS on an annual basis. The City shall not be responsible for making any contributions towards the cost of coverage of the retiree's spouse, registered domestic partner, or dependents upon the employee's retirement from the City. 4.2.3 Contributions into a Retiree HRA For employees hired after January 1, 2010, the City shall contribute 2% of top step Firefighter salary into a Retiree HRA and the employee shall also contribute 2% of top step Firefighter salary into the same account. In the event an employee's salary is not sufficient to contribute the 2%, no City or employee contribution will be made until such time as the salary is able to make the contribution. This contribution will occur each pay period beginning the month after the employee has been hired and will be open for negotiations at the end of the term of this contract. 4.2.4 Deferred Compensation Plan Over the course of this Agreement, the City will provide up to two deferred compensation plan providers, as allowed under the Internal Revenue Code Section 457. Participation in a plan is voluntary and the administrative fees to participate in the plan are the responsibility of employees. 4.2.5 Flexible Spending Account for Health and Dependent Care Reimbursement (125) The City will continue to offer a Section 125 Plan pursuant to the IRS Code. City shall establish annual enrollment period for the Section 125 Plan and each employee must re -enroll if he/she wishes to participate in the Section 125 Plan for the following calendar year. City shall have the authority to implement changes to the 125 Programs to comply with changes in applicable IRS laws without having to go through the meet and confer process but agrees to coordinate all changes through the Employee Benefits Committee. 4.3 LIFE INSURANCE 11 SRFCO MOU 2011-2013 The City will pay the full premium cost for enrollment in the group term insurance plans for employees represented by this bargaining unit. The basic plan provides $5,000 worth of group term life insurance; the supplemental plan provides a group term life insurance policy equal to one times the employees' base annual salary. 4.4 DENTAL PLAN A. The City will provide a dental insurance program providing 100% coverage for diagnostic and preventative care; $25.00 deductible on corrective care (80/20 cost sharing after deductible) per calendar year per person, with a $75 deductible limit per family; and orthodontic care (50/50 cost sharing). B. The dental plan shall provide for an 80/20 cost sharing for basic services such as casts, crowns and restorations. Major services such as bridgework and dentures are covered using a 50/50 cost sharing formula. C. The City will pay the entire premium cost for such a dental plan and shall pay the entire cost for any premium rate increases occurring during the term of this agreement. The City will add the full cost of the dental premium as a paid benefit by the City to the Full Flex Cafeteria Plan enrollment form. D. The calendar year benefit for each eligible, enrolled member is $1,500 per calendar year. Orthodontic benefits remain unchanged, and are limited to those dependents up to the age of 19 and subject to a $1,000 per person, per lifetime benefit. 4.5 RETIREMENT 4.5.1 City Paid Employee Retirement Bargaining unit members shall pay the full share of the employee's contribution to the Marin County Retirement System. Employees represented by this bargaining group who retire from the City of San Rafael within 120 days of leaving City employment (excludes deferred retirements), shall receive employment service credit for retirement purposes only, for all hours of accrued, unused sick leave (exclusive of any sick leave hours they are eligible to receive and they elect to receive in compensation for at the time of retirement, pursuant to Article 5.1.2. of this M.O.U.). 4.5.2 Retirement Plans The City shall provide the Marin County Employee Retirement Association 3% at 55 retirement program to all safety members, as defined under the 1937 Act Government Code Section 31664, subject to Marin County Employee Retirement Association procedures and regulations and applicable 1937 Act laws that govern such plans. This is based on an employees' single highest year of compensation with a 3% COLA. Safety members hired on or after July 1, 2011 will receive an MCERA retirement benefit at the formula 3%@55, calculated based on the average of their highest consecutive three years of compensation, with a 2% COLA benefit cap. 4.5.3 Member Cost of Living Rates Bargaining unit members who are eligible to participate in the Marin County Employee Retirement Association will pay their full share of members' cost of living rates as allowed under 12 SRFCO MOU 2011-2013 Articles 6 and 6.8 of the 1937 Retirement Act. Safety member contribution rates include both the basic and COLA portions (50% of COLA is charged to members as defined in the 1937 Act). 5 LEAVES 5.1 SICK LEAVE 5.1.1 Policy Statement Each employee represented by this Association shall be eligible to accrue sick leave benefits. Employees may use accrued sick leave, if necessary, during their probationary period. Sick leave shall not be considered as a privilege, which an employee may use at his/her discretion, but shall be allowed only in ,case of necessity and actual sickness or disability.. 5.1.2 Administration of Sick Leave An employee eligible for sick leave with pay will be granted such leave with the approval of the Fire Chief for the following purposes: Personal illness or illness within the immediate family (immediate family is defined as employee's spouse, dependent children and/or employee's parents, not in-laws) or physical incapacity resulting from causes beyond the employee's control; or Enforced quarantine of the employee in accordance with community health regulations. Except that an employee may not use sick leave for a work related injury and/or illness once said employee has been determined permanent and stationary. The employee is required to notify the Fire Chief according to department rules and regulations at the beginning of his/her workday if said employee will be absent under the provisions of sick leave. Every employee who is absent from his/her duties for two (2) consecutive days, under the provisions of sick leave, shall file with the Human Resources Director, if so requested, a verification in the form of a physician's certificate or the employee's personal affidavit, verifying the employee's eligibility for sick leave. The inability or refusal by said employee to furnish the requested information, as herein required, shall constitute good and sufficient cause for disciplinary action, up to and including dismissal. In recognition of exempt status from FLSA, time off for Sick leave purposes shall not be deducted from employee's accrual unless the employee is absent for the full workday. 5.1.3 Sick Leave Accrual Represented employees working a 56 hour work week shall earn sick leave credits at the rate of twelve (12) hours per month. Represented employees working a 37.5 hour work week shall earn sick leave credits at the rate of 7.5 hours per month. Accrual of sick leave for usage purposes is unlimited. The maximum accrual limits for sick leave payoff purposes are 1,200 hours for employees working a 37.5 hour work week and 1,680 hours for employees working a 56 hour work week. 5.1.4 Sick Leave Service Credit Option Employees who are eligible to accrue sick leave and who retire from the City of San Rafael on or after February 1, 2007 and within 120 days of leaving City employment (excludes deferred retirement) shall receive employment service credit, for retirement purposes only, for all hours of accrued, unused sick leave (exclusive of any sick leave hours said employee is eligible to receive and elects to receive in compensation at the time of retirement, pursuant to Section 5.1.5 — Sick Leave Payoff). 5.1.5 Sick Leave Payoff 13 SRFCO MOU 2011-2013 Employees who leave City service in good standing shall receive compensation (cash in) of all accumulated, unused sick leave based upon the rate of three percent (3%) for each year of service up to a maximum of fifty percent (50%) of their sick leave balance. Sick leave payoff would be subject to a maximum of 600 hours for 37.5 hour per week employees and 840 hours for 56 hour per week employees, subject to the 3% per year formula noted above. In the event of the death of an employee, payment for unused sick leave based upon the previously stated formula shall be paid to the employee's designated beneficiary. 5.2 VACATION LEAVE 5.2.1 Policy Statement Each employee represented by this Association shall be eligible to accrue vacation leave benefits. Employees shall be eligible to use accrued vacation leave after six (6) months of employment, subject to the approval of the Fire Chief. 5.2.2 Rate of Accrual Vacation benefits shall accrue during the probationary period. Each regular full time employee (part time regular are prorated) shall accrue vacation at the following rate for continuous service: For 37.5 hour per week employees YEARS OF SERVICE ACCRUAL PER YEAR ACCRUAL PER PAY PERIOD 1 - 5 Years 15 days or 112.5 hours 4.69 hours 6 Years 16 days or 120 hours 5.00 hours 7 Years 17 days or 127.5 hours 5.31 hours 8 Years 18 days or 135 hours 5.63 hours 9 Years 19 days or 142.5 hours 5.94 hours 10 Years 20 days or 150 hours 6.25 hours 11 Years 21 days or 157.5 hours 6.56 hours 12 Years 22 days or 165 hours 6.88 hours 13 Years 23 days or 172.5 hours 7.19 hours 14 Years 24 days or 180 hours 7.5 hours 15+ Years 25 days or 187.5 hours 7.81 hours For 56 hour per week employees YEARS OF SERVICE ACCRUAL PER YEAR ACCRUAL PER PAY PERIOD 1 - 5 Years 7.5 shifts or 180 hours 7.5 hours 6 Years 8 shifts or 192 hours 8 hours 7 Years 8.5 shifts or 204 hours 8.5 hours 8 Years 9 shifts or 216 hours 9 hours 9 Years 9.5 shifts or 228 hours 9.5 hours 10 Years 10.0 shifts or 240 hours 10 hours 11 Years 10.5 shifts or 252 hours 10.5 hours 12 Years 11 shifts or 264 hours 11 hours 13 Years 11.5 shifts or 276 hours 11.5 hours 14 SRFCO MOU 2011-2013 14 Years 12 shifts or 288 hours 12 hours 15+ Years 12.5 shifts or 300 hours 12.5 hours 5.2.3 Administration of Vacation Leave The City Manager, upon the recommendation of the Fire Chief, may advance vacation credits to any eligible employee, except that if the employee leaves City employment before accruing the used vacation leave said employee will reimburse the City for the advanced vacation leave. In recognition of exempt status from FLSA, time off for vacation leave purposes shall not be deducted from the employee's accrual unless the employee is absent for the full work day. The time at which an employee may use his/her accrued vacation leave and the amount to be taken at any one time, shall be determined by the Fire Chief with particular regard for the needs of the City, but also, insofar as possible, considering the wishes of the employee. In the event that one or more City holidays falls within an annual vacation leave, such holidays shall not be charged as vacation leave, unless the employee is on a schedule to be paid for designated holidays in lieu of days off. 5.2.4 Vacation Accrual Cap At any time during each calendar year employees will be limited (capped) in the number of vacation hours they can accrue. No employee may accrue more than 250 hours for 37.5 hour per week employees and 396 hours for 56 hour per week employees. Vacation accruals will resume once the employee's accumulated vacation balance falls below the allowable cap limit. Employees may, for special situations (i.e., extended medical leave) request an increase in their cap. Each request would need to be in writing, submitted through the department, and receive the approval of the Fire Chief and the City Manager. Such requests would be reviewed on a case-by-case basis and would be evaluated based on the reason for the request and be consistent with the provisions of the MOU. This additional vacation accrual could not exceed one-half of the employee's regular annual vacation accrual. In no case would the addition of vacation accrual over the cap be extended beyond one additional year. If an employee exceeds the accrued vacation balance (cap) as a result of being on extended leave pursuant to Labor Code Section 4850, those accrued hours would be carried forward and the employee would be allowed to use the additional accrued hours without penalty. In no event will an employee have their vacation hours reduced as a result of exceeding the cap due to having been off on Labor Code 4850 time as a result of an industrial injury, if the time off due to an industrial injury prevented them from taking scheduled vacation. 5.2.5 One -Time Vacation Buy -Down As of December 31, 2006, the City will require a one time vacation buy -down for those employees whose vacation accrual is above 225 hours for 37.5 hour a week employees and 357 hours for 56 hour a week employees. This one time buy -down will bring employees under the vacation cap as defined in Section 5.2.4 allowing for additional accrual time. This one time payment was made with the second pay check in February 2007, unless the value of the cash - in was greater than $10,000. If the value of the cash -in was greater than $10,000, the City shall pay the vacation cash -in over a five year period, on the second paycheck in February each year. The value of the payment each year will be calculated as one-fifth of the vacation hours 15 SRFCO MOU 2011-2013 over 357 (for 56 hour week employees) or over 225 (for 37.5 hour employees) multiplied by the employee's current rate of pay in the year of the payout. Employees who have a balance remaining for cash -in and who retire or terminate employment with the City of San Rafael, or upon the employee's death, will receive payment for the balance of the cash -in value as part of the employee's final compensation. Cash -in payments will not affect the employee's ability to participate in the Vacation Conversion per Section 5.2.7. 5.2.6 Vacation Payoff Upon termination of employment by resignation, retirement, or death, employees who leave the municipal service in good standing shall receive compensation of all accrued unused vacation leave earned prior to the effective date of leaving their City position. In the event of the death of an employee, payment for unused vacation leave shall be paid to the employee's designated beneficiary. 5.3 HOLIDAYS 5.3.1 Days Observed Employees covered under this Memorandum of Understanding shall be entitled to the following holidays: New Year's Day Labor Day Martin Luther King Day Admission Day** Washington's Birthday* Veteran's Day Lincoln's Birthday* Thanksgiving Day Cesar Chavez Day Day after Thanksgiving Memorial Day Christmas Independence Day Notes: *For employees working a 37.5 hour work week, Washington's and Lincoln's birthdays are combined as President's Day; with that said, employees shall receive one floating holiday. **A floating holiday is provided in lieu of Admission's Day off. 7.5 hours for these floating holidays are automatically added to an employee's Floating Holiday accrual on a semi-annual basis. 5.3.2 Holiday Pay All 56 hour a week shift employees represented by this Association are entitled to additional straight time compensation for every holiday given above. Said compensation shall be paid twice each year on the first pay period of December and the first pay period of June. Holiday pay formula will be based on a 56 hour work week (2,912 hour year for calculating the hourly rate for a twelve hour day). During the first year of this agreement, employees will not be paid for 9 holidays. Employees will not receive a June holiday check and will receive a December holiday check compensating them for 4 holidays. During the second year of this agreement, employees will not be paid for 7 holidays. However, some of the value of the 7 forfeited holidays may be restored on a dollar - for -dollar basis on savings realized by the new pension tier during the second year of the agreement. All holiday pay owed in the second year will be paid in a December holiday pay check. This forfeiture of Holiday Pay sunsets upon expiration of this agreement. 16 SRFCO MOU 2011-2013 5.4 OTHER LEAVE 5.4.1 Administrative Leave Represented employees working a 37.5 hour work week shall receive seven (7) Administrative Leave days (52.5 hours) each calendar year (56 hour work week represented employees shall receive 3.5 shifts [84 hours]) subject to the approval of the department head. An additional three (3) days (22.5 hours) for 37.5 hour employees and 1.5 shifts (36 hours) for 56 hour employees may be granted at the discretion and with the approval of the department head and the City Manager. Unused Administrative Leave does not carry over from one calendar year to the next, nor are unused balances paid off upon an employee's resignation. In recognition of exempt status from FLSA time off for Administrative leave purposes shall not be deducted from employee accrual, unless the employee is absent for the full workday. 5.4.2 Bereavement Leave In the event of the death of an employee's spouse, child, parent, brother, sister, in-law(s), relative who lives or has lived in the home of the employee to such an extent that the relative was considered a member of the immediate family and/or another individual who has a legal familial relationship to the employee and resided in the employee's household, up to three (3) days for 37.5 hour per week represented employees (2 shifts for 56 hour per week employees) of bereavement leave within the state and up to five (5) days for 37.5 hour per week represented employees (2 shifts for 56 hour per week employees) of out of state bereavement leave may be granted to attend the funeral. In those cases where the death involves an individual who had such a relationship with the employees, as defined above, the employee shall sign a simple affidavit describing the relationship and submit this to the Fire Chief as part of the request for bereavement leave. 5.4.3 Jury Duty Employees required to report to jury duty shall be granted a leave of absence with pay from their assigned duty until released by the court. The employee shall notify his/her employer in advance when summoned for jury duty. If the employee is a shift employee and is selected to serve on a jury, said employee shall not be required to perform duty during non -court hours until released by the court. 5.4.4 Workers Compensation Leave Safety employees shall be governed by the provisions of Section 4850, et seq. of the Labor Code. Non safety employees shall be governed by applicable state law and City Rules and Regulations. Refer to Section 5.1.2 for qualifications regarding use of accrued sick leave. 5.4.5 Military Leave Military leave as defined in State law shall be granted to any regular employee. All employees entitled to Military Leave shall give the Fire Chief a reasonable opportunity, within the limits of military regulations, to determine when such leave shall be taken. 5.4.6 Leave of Absences Without Pay Leave of absences without pay (for non-medical reasons which are covered by Section 5.4.7.) may be granted in cases of emergency or where such absence would not be contrary to the best interest of the City. Such leave so granted is not a right but an authorized privilege. 17 SRFCO MOU 2011-2013 Employees on authorized leave of absence without pay may not extend such leave without the expressed approval of the Appointing Authority. All other applicable leaves must be exhausted and no vacation, sick leave, or any other paid benefit shall be accrued or used during such leave. The Fire Chief, as Appointing Authority, may grant up to 30 days of leave without pay depending upon the merit of the case. Any leave without pay in excess of 30 days may only be granted upon the recommendation of the Fire Chief and approval of the City Manager and may not exceed a total of six months. 5.4.7 Family Medical Leave Such leave shall be in accordance with applicable State and Federal law. 5.4.8 Catastrophic Leave Association members shall abide by City Policy. 5.4.9 Absence Without Authorized Leave An unauthorized absence of an employee for three consecutive work days may result in an investigation as to the circumstances of the situation and disciplinary action up to and including termination, if warranted. 6 TERMS & CONDITIONS OF EMPLOYMENT 6.1 WORK WEEK The established work week for suppression employees covered by this Memorandum of Understanding shall consist of a fifty-six (56) hour workweek with a three (3) platoon system. A work shift shall be defined as twenty-four. (24) consecutive hours, commencing at 0800 and continuing through 0800 the following day. A set shall be defined as two twenty-four hour shifts worked consecutively. Suppression employees work a fifty-six (56) hour work week in twenty-four (24) hour shifts within a twenty-four (24) day cycle as listed below (commonly referred to as the "2 X 4" schedule): X = 24 hour on -duty period 0 = 24 hour off-duty period Example: XX0000 X0000iXX0000iXX0000 Should a set fall on December 24th and 25th in any one calendar year, the shifts will revert to the Christmas Holiday schedule. (For example, December 22-C, December 23-C, December 24-A, December 25-A would be converted to December 22-C. December 23-A, December 24-C, December 25-A). The 2 X 4 schedule shall not change the rules regarding use of sick leave. Employees should notify the Fire Department administration that sick leave use is needed according to current policy and before each 24-hour shift. The established workweek for 37.5 hour employees shall be negotiable between the Employee and the Fire Chief, with the final schedule determined by the Fire Chief's approval. 6.2 HOURLY RATE 18 SRFCO MOU 2011-2013 The hourly rate for personnel covered by this MOU shall be based on 1950 annual work hours for represented job classes working a 37.5 hour work week and 2912 annual work hours for represented job classes working a 56 hour work week. 6.3 OVERTIME Employees in the FLSA exempt classifications of Administrative Chief/Fire Division Chief or Battalion Chief will be paid overtime for additional days authorized and worked in excess of their regular work week schedule provided that: 1. The employee is assigned to overtime relief duty as shift commander, Strike Team Leader, or other authorized emergency overhead assignment; and 2. The Fire Chief has authorized the overtime work in writing and in advance of the performance of the work. The overtime authorized in this section will be paid at time and one half of the 56 -hour rate, regardless of whether the employee normally works a 37.5 hour or 56 hour schedule. 6.4 SPECIALTY ASSIGNMENT If through mutual agreement with the Fire Chief operations personnel are assigned to the 37'/2 - hour work schedule, as opposed to the 56 -hour schedule, for assignments such as training, fire prevention, or other administrative functions, such employee shall receive five percent (5%) premium pay. The length of the assignment shall be based on mutual agreement between the employee and the Fire Chief. 6.5 SELECTION 6.5.1 Selection Process The City's Human Resources Department shall be responsible for the.administration of all recruitments. 6.5.2 Referral Process All qualified candidates, based upon competitive examination, shall be placed on the Eligibility List for the appropriate job classification. The Fire Chief shall have the authority of "the Rule of the List" and all candidates on a current Eligibility List shall be eligible for referral to the Fire Chief for final selection. 6.5.3 Battalion Chief Qualifications In addition to other qualifications described in the Fire Department's Career Development Guide, qualifications for candidates for Chief Officers positions represented by this Association in the Fire Department will include three (3) years of line captain experience or two (2) years of line captain experience if appointed to an acting assignment. 6.6 PROBATIONARY PERIOD 6.6.1 Purpose of Probation Each employee shall serve a period of probation beginning on the date of initial appointment to their position. The purpose of probation shall be to determine the employee's ability to perform satisfactorily the duties prescribed for the position, prior to the employee entering regular status. 6.6.2 Length of Probationary Period 19 SRFCO MOU 2011-2013 The probationary period on original and promotional appointments shall be for twelve (12) months. 6.6.3 Rejection During Probation During the probationary period an employee may be rejected at any time by the Fire Chief without the right of appeal. 6.6.4 Extension of Probationary Period The probationary period shall not be extended except in the case of extended illness or injury or compelling personal situation during which time the employee was unable to work. In such cases, the probationary period may be extended for the length of time the ill or injured employee was unable to work. 6.6.5 Notification of Extension or Rejection On determining that a probationary employee's work is not satisfactory, the Fire Chief shall notify the Human Resources Director in writing of his/her intention to extend the employee's probationary period or reject the employee. After discussion with the Human Resources Director, the Fire Chief shall notify the employee in writing of his/her extension or rejection. 6.6.6 Regular Status For the purpose of this agreement, regular status shall mean; full time, non -probationary status. Regular status shall commence with the day following the expiration date of a probationary period. 6.6.7 Promotion of Probationary Employee An employee serving a probationary period may be promoted to a position in a higher position classification provided he/she is certified from the appropriate Eligible List. The employee promoted in this manner shall serve a new probationary period for the position to which the employee is promoted and the new probationary period and promotional appointment shall be effective the same date. 6.6.8 Unsuccessful Passage of Promotional Probation An employee who does not successfully pass his/her promotional probationary period shall be reinstated to the position in which the employee held regular status prior to his/her promotion and all previous rights and privileges restored. Provided, however, that if the cause for not passing the promotional probationary period is sufficient grounds for dismissal, the employee shall be subject to dismissal without reinstated to the lower position. If the employee has completed the probationary period in the prior classification and the employee is subject to dismissal without reinstatement, the employee has the opportunity to appeal pursuant to the provisions of the Firefighters Procedural Bill of Rights Act and this Memorandum of Understanding. - 6.7 PERSONNEL RULES & REGULATIONS 6.7.1 Drug & Alcohol Policy SRFCOA agree to adhere to the Drug and Alcohol Policy as outlined in the San Rafael Firefighters' Association contract. 6.7.2 Outside Employment Policy 20 SRFCO MOU 2011-2013 Association members shall abide by City's policy dated June 27, 2007. 6.7.3 Temporary Light (Modified) Duty Policy Statement SRFCOA agrees to follow the City of San Rafael's Modified Light Duty Work Policy dated June 6, 2008. 6.7.4 No Smoking/Tobacco Use Policy Employees hired by the City of San Rafael after 7/1/08 are required to sign a condition of employment statement that they agree not to smoke or use tobacco products of any kind while employed by the City of San Rafael. This signature must be obtained prior to the date of hire. Employees hired before 7/1/08 will not be allowed to smoke or use tobacco products as follows: 1. While inside any City of San Rafael structure or space 2. While inside any City/Fire Department vehicle 3. While in public when on -duty or in uniform 4. In compliance with State and local ordinance The City will provide tobacco cessation assistance to employees who desire to stop using tobacco products. Employees will be referred to the City's employee assistance program for initial assistance and, if needed, will be eligible to receive up to $2500 in additional funds to complete a certified tobacco cessation program. Written approval from the Fire Chief is required for the additional funding. 6.7.5 Medical Standards The City will establish pre-employment medical standards for all classifications represented by the San Rafael Fire Chief Officers' Association. 6.8 MISCELLANEOUS 6.8.1 Return of City Equipment Upon termination,of employment, all tools, equipment, and other city property assigned to any employee shall be returned to the Fire Department. 6.8.2 Political Activity The political activity of employees shall comply with pertinent provisions of State and Federal law. 6.8.3 Staffing Levels Any changes in the current staffing levels of positions represented by this Association will be subject to meet and confer. 6.8.4 Career Development Program The San Rafael Fire Chief Officers' Association agrees to the Career Development Guidelines as written. 7 PROCEDURES 7.1 DEMOTION & SUSPENSION 21 SRFCO MOU 2011-2013 7.1.1 Demotion The Fire Chief may demote an employee when the following occurs: a. The employee fails to perform his/her required duties. b. An employee requests such a demotion. No employee shall be demoted to a classification for which he/she does not possess the minimum qualifications. When the action is initiated by the Fire Chief, written notice of demotion shall be provided to an employee at least ten (10) calendar days before the effective date of the demotion, and a copy filed with the Human Resources Department. Demotion pursuant to Section 7.1.1 (a) shall be deemed disciplinary action and as such shall be handled according to the provisions of the Section titled "Disciplinary Action" of this Memorandum of Understanding. 7.1.2 Suspension On the recommendation of the Fire Chief, the City Manager may suspend an employee from a position at any time for a disciplinary purpose. Intended suspension action shall be reported immediately to the Human Resources Director, and shall be taken in accordance with the Section titled Disciplinary Action of this Memorandum of Understanding and provisions for exempt status employees. 7.2 TERMINATION OF EMPLOYMENT 7.2.1 Resignation An employee wishing to leave City service in good standing shall file with his/her immediate supervisor, at least fourteen (14) calendar days before leaving the service, a written resignation stating the effective date and reason for leaving. A copy of the resignation shall be forwarded to the Fire Chief and the Human Resources Department. 7.2.2 Termination/ Demotion - Lack of work or. funds The Fire Chief may terminate an employee because of reorganization, abolition of position, and shortage of funds. Said termination shall be considered a Reduction In Force and shall be processed in accordance with Article 7.6, Reduction in Force, of this Memorandum of Understanding. 7.2.3 Termination - Disciplinary Reasons An employee may be terminated for disciplinary reasons, as provided in Article 7.3, Disciplinary Action, of this Memorandum of Understanding. 7.2.4 Termination - Probation The rejection of an employee during his/her initial probationary period is covered in Article 7.3, Probationary Period, of this Memorandum of Understanding. 7.2.5 Retirement Retirement from City service shall, except as otherwise provided, be subject to the terms and conditions of the City's contract, as amended from time to time, with the Marin County Retirement System. 22 SRFCO MOU 2011-2013 7.3 DISCIPLINARY ACTION 7.3.1 Authority The City shall have the right to discharge or discipline any employee for dishonesty, insubordination, drunkenness, incompetence, negligence, failure to perform work as required or to observe the Department's safety rules and regulations or for engaging in strikes, individual or group slowdowns or work stoppages, or for violating or ordering the violation of the Memorandum of Understanding. 7.3.2 Definition Disciplinary action shall mean discharge/dismissal, demotion, reduction in salary, and/or suspension resulting in loss of pay. Any disciplinary action taken shall be consistent with the provisions of the Fair Labor Standards Act as it relates to exempt employees. 7.3.3 Causes for Disciplinary Action The City may discipline or discharge an employee for the following: a. Fraud in securing appointment. b. Negligence of duty. c. Violation of safety rules. d. Unacceptable attendance record including tardiness, overstaying lunch or break periods. e. Possession, distribution or under the influence of alcoholic beverages, non-prescription or unauthorized narcotics or dangerous drugs during working hours. f. Inability, unwillingness, refusal or failure to perform work as assigned, required or directed. g. Unauthorized soliciting on City property or time. h. Conviction of a felony or conviction of a misdemeanor involving moral turpitude. i. Unacceptable behavior towards (mistreatment or discourteousness to) the general public or fellow employees or officers of the City. j. Falsifying employment application materials, time reports, records, or payroll documents or other City records. k. Disobedience to proper authority. I. Misuse of City property. m. Violation of any of the provisions of these working rules and regulations or departmental rules and regulations. n. Disorderly conduct, participation in fights, horseplay or brawls. o. Dishonesty or theft. p. Establishment of a pattern of violations of any City policy or rules and regulations over an extended period of time in which a specific incident in and of itself would not warrant disciplinary action, however, the cumulative effect would warrant such action. q. Failure to perform to an acceptable level of work quality and quantity. r. Insubordination. s. Other acts inimical to the public service. t. Inability or refusal to provide medical statement on cause of illness or disability. 7.3.4 Appeals 23 SRFCO MOU 2011-2013 Whenever punitive action is undertaken, the offending employee shall have the opportunity for an administrative appeal which will be conducted in conformance with the Administrative Procedures Act and this Memorandum of Understanding. If an employee feels he or she has been unjustly disciplined/discharged, he or she shall have the right to appeal his or her case through the appropriate procedure established in this Memorandum of Understanding. Such appeal must be filed with the City Manager by the employee in writing within ten (10) working days from the date of the discipline/discharge and unless so filed the right of appeal is lost. 7.3.4.1 Proceeding Heard by City Manager The appellant may submit the appeal directly to the City Manager or may request arbitration. If an employee elects to have an appeal heard by the City Manager, the employee must state in writing that he or she waives his/her right to an appeal that conforms to the procedures of the Administrative Procedure Act. 7.3.5 City Manager and Arbitration If arbitration is requested, the arbitration will be held in conformance with the Administrative Procedure Act, California Code of Regulations, and other applicable statutes. Representatives of the City and the appellant shall meet within fourteen (14) calendar days to select a mutually acceptable arbitrator. The fees and expenses of the arbitrator and of a court reporter shall be shared equally by the appellant and the City. A hearing before the arbitrator shall be held within 60 calendar days of selection of the arbitrator unless the mutually accepted Arbitrator's schedule does not so permit, in which case the hearing shall be held not more than 120 days after the selection of the arbitrator. In addition to arbitrators proposed by the State Mediation and Conciliation Service, the parties shall be free to select from a pool of arbitrators mutually agreed to by the City and the Association. The arbitrator shall rule on the merits of each party's case as presented during the hearing. Decisions of the Arbitrator on matters properly before him/her shall be final and binding on the parties hereto, to the extent permitted by the Charter of the City. 7.4 GRIEVANCE PROCEDURE 7.4.1 Definition A grievance is any dispute which involves the interpretation or application of any provision of this Memorandum of Understanding (excluding Article 1.3 and Article 1.5 of this M.O.U.), or any Fire Department policy specifically referenced herein, except issues concerning appeals of punitive action, which is governed by Article 7.3. Policy 1 -VI -3 is specifically incorporated by reference. Proposals to add to or change this Memorandum of Understanding or written agreement or addenda supplementary hereto shall not be grievable. 7.4.2 Initial Discussion Any employee who believes that he or she has a grievance may discuss his or her complaint with the Fire Chief. If the issue is not resolved within ten (10) working days, or if the employee elects to submit his or her grievance directly to an official of the association, the procedures hereafter specified shall be invoked. 7.4.3 Referral to City Manager Any employee or any official of the Association may notify the City Manager and Fire Chief in writing that a grievance exists, and in such notification state the particulars of the grievance, and, if possible, what remedy or resolution is desired. 24 SRFCO MOU 2011-2013 No grievance may be processed under Section 7.4.4 below which has not been first heard and investigated in pursuance of Section 7.4.2. A grievance which remains unresolved ten (10) working days after it has been submitted to the City Manager in writing may be referred to the next step. Any time limit may be extended to a definite date by mutual agreement of the Association and the appropriate management representative. 7.4.4 City Manager and Arbitration If the grievance is not resolved in the previous Section 7.4.3 of this Memorandum of Understanding, the grievant, the Association, or the City, after completion of the previous step in the grievance procedure, may submit the grievance directly to the City Manager or may request arbitration. If arbitration is requested, representatives of the City and the Grievant shall meet within ten (10) working days to select a mutually acceptable arbitrator. The selection process will include a review of the arbitrator's availability for the hearing. The fees and expenses of the arbitrator and of a court reporter shall be shared equally by the Grievant and the City. Each party, however, shall bear the cost of its own presentations, including preparation and post hearing briefs, if any. A hearing before the arbitrator shall be held within 60 calendar days of selection of the arbitrator unless the mutually accepted Arbitrator's schedule does not so permit, and the arbitrator shall render a decision which is binding on the parties hereto, to the extent permitted by the Charter of the City. No Arbitrator shall have the power to amend or modify this Memorandum of Understanding or written agreements or addenda supplementary hereto or to establish any new terms or conditions of employment. 7.5 FURLOUGH PROGRAM The employees of this Association endorse the Furlough Program described in Exhibit "B" attached to this Memorandum of Understanding. 7.6 REDUCTION IN FORCE 7.6.1 Authority The Fire Chief may lay off, without prejudice, any regular employee because of lack of work or funds, or organizational alterations, or for reasons of economy or organizational efficiency. 7.6.2 Notice Employees designated for layoff or demotion in lieu of lay off shall be notified in writing at least thirty (30) calendar days prior to the anticipated date of lay off or demotion. The Association shall also be so notified. 7.6.3 Order of Layoff Layoffs and/or reductions in force shall be made by classification. A classification is defined as a position or number of positions having the same title, job description and salary. Extra -hire employees shall be laid off before permanent employees in the affected classification. In effecting the preceding order, a part-time permanent employee with more seniority can displace a full-time permanent employee. 7.6.4 Seniority If two or more. employees within a classification have achieved permanent status, such employees will be laid off or reduced .on the following basis: 25 SRFCO MOU 2011-2013 a. Seniority within the affected classifications will be determinative. Such seniority shall include time served in higher classification(s). The computation of seniority for part-time employees will be credited on a pro -rata basis to full-time service. Time spent on a City Manager approved leave of absence without pay does not count toward seniority. b. If the seniority of two or more employees in the affected classification or higher classification(s) is equal, departmental seniority shall be determinative. c. If all of the above factors are equal, the date of regular status in City service shall be determinative. d. If all of the above are equal, date of certification for appointment shall be determinative. 7.6.5 Bumping Rights An employee designated to be laid off may bump into a class at the same salary level, or into the next lower classification in which such employee has previously held regular status. An employee who is bumped shall be laid off in the same manner as an employee whose position is abolished. 7.6.6 Transfer Rights The Human Resources Director will make every effort to transfer an employee who is to be affected by a reduction in force to another vacant position for which such employee may qualify. The length of eligibility for such transfer will be the period of notification as provided in Section 7.6.2, but no longer than the effective date of such layoff or reduction. 7.7 RE-EMPLOYMENT 7.7.1 General Guidelines Individuals who have been laid off or demoted shall be offered re -appointment to the same classification In which they held status in the order of seniority in the classification. Individuals demoted in lieu of reduction in force shall be offered restoration to the highest class in which they held status and in which there is a vacancy prior to the appointment of individuals who have been laid off. 7.7.2 Right to Re -Employment Each person who has been laid off or demoted in lieu of a layoff from a position the person held, shall, in writing, be offered re -appointment in the same classification should a vacancy occur in the classification within two years after the layoff or demotion. Prior to being re-employed, the employee must pass a physical exam administered by a City appointed physician and must pass the background check administered by the City. 7.7.3 Time Limits Should the person not accept the re -appointment within seven (7) calendar days after the date of the offer, or should the person decline or be unable to begin work within two weeks after the date of acceptance of the offer, the person shall be considered unavailable for employment, shall forfeit the right to re-employment and shall be removed from the re-employment list. 7.7.4 Availability Whenever a person is unavailable for re-employment, the next senior person who is eligible on the re-employment list shall be offered re-employment. 26 SRFCO MOU 2011-2013 7.7.5 Probationary Status Employees re -appointed under the provisions above will not be required to complete a new probationary period if they had previously held permanent status in the classification. Employees who had not completed their probationary period shall serve the remainder of the probationary period upon re -appointment. 7.7.6 Restoration of Benefits Employees restored to previously held positions shall be deemed to have returned from a leave of absence for the purpose of all rights and benefits legally permissible. Time not on the payroll will not count as time worked for the purposes of seniority accrual. 27 SRFCO MOU 2011-2013 SAN RAFAEL FIRE CHIEF OFFICERS' CITY OF SAN RAFAEL: ASSOCIATION: Jeff Rowan, Battalion Chief Jeff Buscher, Battalion Chief Date SRFCO MOU 2011-2013 Jack Hughes, Lead Negotiator Attorney, Liebert Cassidy Whitmore Leslie Loomis, Human Resources Director Sylvia Gonzalez, Administrative Assistant III Date 28 29 SRFCO MOU 2011-2013 ME 00 LO N 00 d' V r- r co rn m 0 6a v Q o d i- 4- a� .c U c O M co m y m U) U) N U a� m 'S r— San Rafael Fire Chief Officers Association Exhibit B FURLOUGH PROGRAM Both the City of San Rafael and the Fire Chief Officer's Association employees recognize the current economic condition -of =the =State of California and the City -of -San Rafael.- Through this- recognition and -- in a cooperative spirit, the City of San Rafael and the Fire Chief Officer's Association have worked expeditiously on the development of a Furlough Program. This Agreement does not mean the City will necessarily implement furloughs; but in the event it is necessary to implement due to continued economic problems in the City of San Rafael, the procedures for this Furlough Program shall provide for both Voluntary Time Off (herein described as VTO) and Mandatory Time Off (herein described as MTO). Voluntary Time Off (VTO). The City will develop and distribute to all employees a survey to determine who might be interested in VTO and the extent to which that interest translates into hours (cost savings) during the coming fiscal year. The needs of the City and the respective departments (as determined by the Department Head and City Manager) will need to be considered in the actual granting of VTO. Any VTO time granted and the resulting savings will have a corresponding impact on the time needed through MTO. 1. An employee's VTO time would count in determining how many hours of MTO an employee needed to take during the fiscal year. 2. An employee selecting VTO would receive one half hour of furlough induced Personal Leave time off for every hour of VTO taken not to exceed the number of furlough induced Personal Leave time off an employee scheduled for MTO would receive (establishes a maximum cap of 5%). This furlough induced Personal Leave time is to be taken as described in 4.b. 3. Employees who take VTO at a time other than when MTO is taken by other employees will have to take vacation leave, compensatory time off or leave without pay if the MTO results in the closure of the department. Mandatory Time Off (MTO). MTO will be taken by the employee during the MTO period when feasible in their respective department (as determined by the Department Head and City Manager). The City will attempt to schedule MTO time in blocks of days (between Christmas and New Years) or individual days next to scheduled holidays and/or weekends. 1. Employees may not take paid vacation time in lieu of designated MTO time. 2. MTO time shall be considered time in pay status for the accrual of leave and eligibility for holidays. MTO time will not impact health, dental and life insurance benefits. At this time MTO time will impact Marin County retirement contributions; but if the Marin County Retirement System changes it policy on this the City will, effective the first of the month following notice from the Marin County Retirement System, make the necessary change in the program's administration to correspond with the change in the policy. Any employee who notifies the City no later than the first day of the fiscal year of the contract term of their retirement date and retires from the Marin County Retirement System during the term of this contract shall be Page 1 of 2 San Rafael Fire Chief Officers Association Exhibit B exempted from the MTO requirements. If said employee did not retire during the fiscal year as stated, said employee would be docked in pay an amount equivalent to the number of MTO hours taken by other represented employees. 3. MTO time shall apply toward time in service for step increases, completion of probation, and related service credit. 4. Other Terms and Conditions: a. The MTO program shall be limited to a maximum five percent (5%) reduction in work hours/pay for the fiscal year. For each MTO hour deducted the involved employee shall be credited with an one half hour,added to a furlough induced Personal Leave balance. b. Personal Leave accrued through the MTO Program may be taken beginning the first day of the following fiscal year with supervisory approval. Furlough induced Personal Leave has no cash value upon termination of employment. If an employee is laid off before having the opportunity to take unused furlough induced Personal Leave said employee would be eligible to take the unused furlough induced Personal leave during the thirty day layoff notice period. C. The employees represented by this Association may elect to give up pay for holidays worked in lieu of mandatory time off, as long as the dollar value of the holiday pay equates to the dollar value of the designated mandatory time off. d. Should the City of San Rafael. experience a financial windfall during the fiscal year that furloughs are implemented, the City agrees to re -open discussions on this Furlough Program. e. The City agrees that it will attempt to distribute the dollar value of any MTO time implemented equally over the remaining number of pay periods in the fiscal year. Page 2 of 2 LIEBERT CASSIDY WHITMORE A PROFESSIONAL LAV. CORPORATION LOS ANGLERS f FRESNO I SAN FRANCISCO Exhibit s 1r APR 0 12008 yo -D 153 TOWNSsm STREETS SUITE 520 SAN FRANCISCO, CwvowiA 94107 T; (415) 512.3000 Ff (415) 8560306 __- GCH--AN@LCWLLGAL=M March 26-200$ — (415) 512-3014 ATTORNEY-CLIENT PRIVILEGED VIA FIRST CLASS U.S. MAIL Leslie Loomis Human Resources Manager City of San Rafael P.O. Box 151560 San Rafael, CA 94915 A-5 A -,^C 01 e 1 M 0 U �' Re; Firefighters' Memorandum of Understanding & Firefighters Bill of Rights Client Matter; SA026-00.1 Dear Ms. Loomis: This is in follow-up to your email exchange of March 12, 2008 with Cynthia O'Neill, You requested that we review the Memorandum of Understanding between the City of San Rafael and San Rafael Firefighters' Association, I.A.F,F., Local 1775 (hereinafter "MOU") and to provide proposed changes to the language contained in the MOU in order to comply with the Firefighters Procedural Bill of Rights (hereinafter "FBOR"). Pursuant to your request, we have reviewed the MOU to determine what language should be revised in light of the FBOR and we are available to discuss the proposed changes with you at your convenience. The FBOR mainly governs two areas; 1) permissible interrogation and investigation processes; and 2) administrative appeals of "denials of promotion on grounds other than merit" or "punitive action", which is defined in the FBOR as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment."1 This has been interpreted to mean that an employee is entitled to an administrative appeal of any action that results in loss of pay,2 except in the case of a transfer, An employee is not entitled to an administrative appeal of a transfer unless it is considered punitive, meaning it is imposed for disciplinary purposes.3 As such, all provisions of the MOU that touch upon disciplinary action, investigation of allegations of misconduct, interrogation procedures, grievance procedures, transfers for purposes of ptmishment, and appeals of disciplinary actions may be affected by the FBOR. We have reproduced those affected provisions below and have underlined our suggested revisions. ' Cal. Gov, Code § 3251(c) z White v. County ofSacranlento (1982) 31 Cal.3d 676, 682-684 ' s Benach v. County of Los Angeles (2007) 149 Cal.App.4'h 836, 844-846 56738,2 SA026-001 www.lcwlegal.coln Leslie Loomis March 26, 2008 Page 2 Please note that since it is generally in the City's best interest to keep the MOU as short as possible, there are portions of the MOU which are affected by the FBOR, but have been left unchanged. We have also reproduced those MOU provisions in this letter for your reference. You --will note -that -we have included -comments and and recommendations with --regard to these unchanged portions to ensure the City is aware of how to comply with the FB OR's provisions, CHAPTER 1.0 GENERAL PROVISIONS . 1.4. Management Rights 12. To discharge, suspend, demote or otherwise discipline employees for proper cause in accordance with the provisions and procedures set forth in City Personnel Rules and Regulations, the Firefighters Procedural Bill of Rights, and this Memorandum of Understanding. Comments. This acknowledges the requirement that all firefighters be afforded the rights and protections delineated in the FBOR'. 14. To hire, transfer, promote and demote employees for non -disciplinary reasons in accordance with this Memorandum of Understanding and the City's Rules and Regulations. Comments: We do not recommend any changes to this provision. However, please be advised that a demotion or a transfer that results in loss of pay may entitle the firefighter to the opportunity for an administrative appeal under the FBOR. CHAPTER 2.0 COMPENSATION 2.2.3. EMT I Employees who have completed their first year of full-time service with the San Rafael Fire Department and who have successfully completed and who maintain an EMT I certification, accredited. by.the State of California or State Fire Marshal's, Office, shall - receive an additional compensation amounting to 2.5% of their basic monthly salary. EMT I re -certification training shall be conducted on duty at times determined by the Fire Chief. If an employee fails to maintain a valid EMT I, said employee shall lose their 2,5% incentive pay. All non -paramedic line employees hired on or after March 7, 1994 shall be required to possess and maintain a valid EMT I certification as a condition of employment. Comments: We do not recommend any changes to this provision. However, please be advised that the loss of an employee's 2.5% incentive pay may entitle the firefighter to the Ara. § 3260 56738.2 SA026-001 Leslie Loomis March 26, 2008 Page 3 opportunity for an administrative appeal under the F130 R. CHAPTER 3.0 PROBATIONARY PERIOD 3.9 Unsuccessful Passage of Promotional Probation An employee who does not successfully pass his/her promotional probationary period shall be reinstated to the position in which the employee held regular status prior to his/her promotion. If the employee was serving a probationary period at the time of promotion, the suspension of the prior probationary period shall be lifted, the employee shall be reinstated to probationary status in the prior classification and thee -remainder. -of that period. shall .be served.. Provided, however, that if the cause for not passing the promotional probationary period is sufficient grounds for dismissal, the employee shall be subject to dismissal without reinstated to the lower position. If the employee has completed the probationary period in the prior classification and the employee is subject to dismissal without reinstatement, the employee has the opportunity to appeal pursuant to the provisions of the Firefighters Procedural Bill of Rights Act and this Memorandum of Understanding. Comments: The administrative appeal provisions of the FBOR only apply to firefighters who have successfully completed the probationary period. It states that "punitive action or denial of promotion on grounds other than merit shall not be undertaken by any employing department or licensing or certifying agency against any firefighter who has successfully completed the probationary period without providing the firefighter with an opportunity for administrative appeals." Although there is no case law to help interpret this provision of the FBOR, it does seem clear that there is no right to an administrative appeal after rejection from the initial probation that one serves with an employer, or even a promotional probation if merit -based reasons are the reason for rejection from probation. Until there is case law that interprets this provision, a cautious approach would be to provide an opportunity for an administrative appeal to any employee who has been dismissed from promotional probation "for reasons other than merit" and not returned to his or her original position. CHAPTER 5,0 HEALTH AND WELFARE 5.7 Sick Leave 5.7.2 Sick Leave Usage An employee eligible for sick leave with pay will be granted such leave with approval of the department head for the following purposes— Except Except that in a, and b. above an employee may not use sick leave for a work related injury and/or illness once said employee has been determined .,..' s Id. § 3254(b) 56738.2 SA026-001 Leslie Loomis March 26, 2008 Page 4 permanent and stationary. The Association acknowledges the Fire Chiefs right to investigate sick leave abuse. Comments. Although we do not recommend any changes in the language of this provision, we would like to bring to your attention that any and all investigation and/or interrogation of an employee is subject to the rights and provisions contained in the FBOR. As a result, those who investigate sick leave usage must be briefed on proper interrogation and investigation procedures to ensure compliance with the FBOR. CHAPTER 7.0 TERMS & CONDITIONS OF EMPLOYMENT The Fire Chief m.ay.demote,aii,employee when the following oceurs: A. The employee fails to perform his/her required duties. Continents: We do not recommend any changes in the language of this provision. We would, however, like to bring to your attention that any demotion, including the one described above, would likely be subject to the FBOR, and most significantly, its appeals processes which are discussed at length below. 7.8.3. Termination — Disciplinary Reasons An employee may be terminated for disciplinary reasons, as provided in Chapter Eight (8) Disciplinary Action of the Memorandum of Understanding. Continents: We do not recommend any changes in the language of this provision. However, please note that termination, as it results in a loss of pay, would be considered "punitive action." This stands even if the termination was not carried out for disciplinary reasons. As such, the FBOR would likely be applicable and the terminated employee must be, afforded the opportunity for an administrative appeal. CHAPTER 8.0 DISCIPLINARY ACTION 8.1 Authority The City shall have the right to discharge or discipline any employee for dishonesty, insubordination, drunkenness, incompetence, negligence, failure to perform work as required or to observe the Department's safety rules and regulations or for engaging in strikes, individual or group slowdowns or work stoppages, or for violating or ordering the violation of the Memorandum of Understanding. Comments: We do not recommend any changes in the language of this provision, However, please note that the FBOR provides that, subject to several exeeptions6, punitive action 6Id. § 3254(d) 56738.2 SA026.001 Leslie Loomis March 26, 2008 Page 5 or denial of promotion on grounds other than merit may be imposed for misconduct only if the investigation of the alleged misconduct is completed within one year of discovery by the "Fire Department." It is critically important to act on misconduct as soon as any member of the fire department becomes aware_ - >t -the on year time clock is arguably-tr ggered_when any member of the Department learns of the misconduct. In addition, if it is determined that disciplinary action will be taken, the offending firefighter must also be served with Notice of the proposed discipline within that same one year as well. Please note that this one year statute of limitations applies only to alleged misconduct that occurred after January 1, 20087. We recommend that all management be aware of this one year statute of limitations and its exceptions, so that the City does not lose the opportunity to discipline because of the time taken to investigate. Another notice requirement, contained in theYFBOR' is that the offending employee must, be notified of the imposition of discipline within the following time constraints. The Notice of Discipline must occur no later than 30 days after the decision to discipline, but not less than 48 hours prior to the effective date of the discipline. Since the earliest that the decision to discipline occurs is at the Skelly conference, it is a good idea to issue the Notice of Discipline no later than 30 days after the Skelly conference. The 48-hour notice provision serves to delay the effective date of a discipline by at least two days. 8,4 Appeals Whenever punitive action is undertaken, the offending employee shall have the opportunity for an administrative appeal which will be conducted in conformance with the Administrative Procedure Act and this Memorandum of Understanding. Such appeal must be filed with the City Manager or his/her designee by the employee in writing within fourteen (14) calendar days from the date of the discipline/discharge and unless so filed the right of appeal is lost. Comments: One of the Ivey protections of the FBOR is that all firefighters must be afforded the right to an administrative appeal of any punitive action.8 This language clearly states that the MOU is in conformance with the APA and does afford the right to an administrative appeal,9 8.5 City Manager and Arbitration The appellant may have the appeal heard by the City Manager or may request arbitration, 7 Id. 'Id. § 3254(b) 9 Id. § 3254.5 56738.2 SA026-001 Leslie Loomis March 26, 2008 Page 6 8.5.1 Proceeding Heard by City Manager N it an empioyee elects to nave an appeal heard by the must state in writing that he or she waives his/her rim to the procedures of the Administrative Procedure Act. 8.5.2 Arbitration If arbitration is requested, the arbitration will be held in conformance with the Administrative Procedure Act California Code of Regulations, and other applicable statutes. Representatives of the City and the appellant shall meet within fourteen (14) days to select a mutually acceptable arbitrator. The fees and expenses of the arbitrator and of a court reporter shall be shared equally by the appellant and the city. A hearing before the arbitrator shall be held within sixty days of the selection of the arbitrator witless the mutually accepted arbitrator's schedule does not so permit, in which case the hearing shall be held not more than 120 days after the selection of the arbitrator.10 The arbitrator shall not have the power to amend or modify either party's position;" but shall rule on the merits of each party's case as presented during the hearing. Decisions of the Arbitrator on matters properly before him/her shall be final and binding on the parties hereto, to the extent permitted by the Charter of the City. In addition to arbitrators proposed by the State Mediation and Conciliation Service, the parties shall be free to select from a pool of arbitrators mutually agreed to by the City and the Association. The parties shall continue to meet and confer, after the adoption of this MOU on a mutually agreeable panel of arbitrators. Once agreed to the panel shall be identified by a side letter to the MOU. Comments: Please note that the Administrative Procedure Act (hereinafter "APA") allows for alternative dispute .resolution, namely' binding: arbitration, as well- as hon -binding arbitration and mediation. By affording the covered employees with the option to enter into binding arbitration, and following the APA procedures regarding binding arbitration, the requirement that an employee may make an administrative appeal under the APA is satisfied. However, should binding arbitration be negotiated out of the MOU, an alternative hearing inethod as prescribed by the APA must be included. Please do not hesitate to contact us should this be the case so we can discuss alternative administrative appeal procedures. In addition, all arbitration procedures must be in conformance with the APA 12 and the 10 1 Cal, Code Regs. § 1240 We do not understand how an arbitrator could ever modify a party's "position." 12 Cal. Gov. Code §§ 11420.10-11420.30 56738.2 SA026.001 Leslie Loomis March 26, 2008 Page 7 California Code of Regulations. 13 Please note that the current arbitration procedures, as amended in this letter, are consistent with both the APA and the California Code of Regulations. CHAPTER 9.0 _ GRIEVANCE PROCEDURE 91 Definition A grievance is any dispute, which involves the interpretation or application of any provision of this Memorandum of Understanding, or any Fire Department policy specifically referenced herein, except issues concerning appeals of punitive action which is governed by Chapter 8.0, Policy I NI -3 is specifically incorporated by reference. 14 Comments: So as to avoid any confusion in determining when the appeals processes contained in the APA and FBOR must be followed, this clarifies that all appeals of punitive action must be undertaken in accordance with Chapter 8.0 of this MOU, and that all other grievances will be resolved in accordance with Chapter 9.0, This concludes our comments and suggested revisions of the MOU as it pertains to the FBOR. Thank you for your attention to the above. Should you have any questions or would like to discuss this further, please do not hesitate to contact us. Sincerely, LIEBERT CASSIDY WHITMORE Grace Y. Chan CJ O/GYC/ab i3 I Cal, Code Regs, §§ 1200-1258 14 We have not reviewed Policy 1 -VI -3 so we do not know its relevance to FY30R issues. 56738,2 SA026-001