Judge Orders SB To Meet And Confer With Firefighters’ Union Prior To Outsourcing

The failure of the city of San Bernardino’s top officials to forthrightly disclose to negotiators with the bargaining unit for the city’s firefighters that they intended to close out the fire department and have an outside agency or entity provide fire safety service to the city presents a wrinkle in the city’s outsourcing plan approved by the city council last month, a federal judge has ruled.
After a decade of acutely deteriorating circumstances, San Bernardino filed for Chapter 9 bankruptcy protection in August 2012. The city’s filing was overseen by Federal Judge Meredith Jury. From the outset of the bankruptcy proceedings, Jury has proven highly indulgent of the city, which has been working to overcome and fight its way back from $180 million in ongoing unfunded liabilities and a $49 million annual operating deficit. Even as CalPERS, the California Public Employees Retirement System, opposed the bankruptcy and the unions for the police officers and firefighters protested many of the measures city officials latched onto in an effort to right the city’s listing financial ship, Jury allowed the city to proceed, consistently ruling with minor exceptions that the city could change the terms of its existing contracts and defer or reduce payments to its creditors and vendors until the city could get back on its financial feet.
One stratagem the city embraced was outsourcing the fire department by creating a fire assessment district that would overlay and be coterminous with the city limits and have the county fire division take on responsibility for providing fire protection service in the 59.6 square mile, 213,708-population county seat. The city council resolved to do just that on August 24, more than two-and-a-half months after the city had presented its bankruptcy exit plan to Jury on May 30. According to San Bernardino City Manager Allen Parker, the outsourcing/fire assessment district formation would provide the city with a $12 million inroad against its deficit spending problem.
But Jury, who last year tossed out the existing contract between firefighters’ union and the city, giving the city authority to impose a new contract not agreed to by the firefighting rank and file and also allowed the city to mandate that firefighters pay the retirement contributions that the city until January 2013 paid toward the firefighters’ pensions, last week entered a rare ruling in favor of the firefighters’ union, which had gone to court to protest the outsourcing.
Jury made a determination on September 17 that the city had not negotiated with the fire union before outsourcing the fire department. Now San Bernardino has to engage in a meet-and-confer process with the firefighters’ union before it can implement the fire service outsourcing.
Using its authority, the city council in August voted to dispense with the fire department as a city division, contract with the county fire department to have its personnel man the city’s fire stations and annex the entirety of the city into a county fire district that will impose on home and business owners a parcel tax. The city stands to see savings garnered from the lower costs associated with having the county deliver fire protection service rather than in-house through the existing municipal fire department. Further, the revenue to the county to be generated as a consequence of the fire district assessments will then be used to cover the cost of delivering fire service, and alleviate the city and its general fund of that burden. Through those two factors, San Bernardino officials anticipate a per year savings in the neighborhood of $12 million, a major stride toward eliminating the city’s deficit.
But the firefighters’ union, represented by attorney Corey Glave, has asserted that the city was obliged to disclose in full detail what it intended to do with regard to the future provision of fire protection service and that it had not done so. Moreover, Glave suggested, the city had actively misrepresented what it was intending to do and misled the firefighters’ union.
Last year, prior to the imposition of new employment contract terms on the firefighters, Parker and the city’s labor attorney, Linda Daube, repeatedly stated that contracting out for fire service was not an option the city was pursuing.
Jury said that with the imposition of new terms foisted on the firefighters and their union by the city last year and which she had allowed because of the city’s need to structure itself out of bankruptcy, the city had committed to those terms. Moving beyond those terms – which involves a city owned and operated fire department – obviates the “free pass” Jury said she had given the city to change contract. At this point, in altering the situation once more by dissolving the fire department, Jury said, the city must now engage in the meet and confer process with the firefighters’ union.
“Once they have changed the terms and conditions of employment,” Jury said, “they have created then a new status quo, and if they want to modify it further, then they have to modify it under state law, which would require bargaining with the union.”
Jury expressed skepticism about the city’s claim that it had made disclosure of its outsourcing plans, noting that the city council authorized Parker to seek fire service proposals from outside agencies and entities during a closed session and that California’s open public meeting statute – the Brown Act – outlines a protocol by which such decisions are made in open rather than closed sessions. She said the city had kept the action secret and did not disclose it until it was brought up by the fire union several months later.
“The timing of this… is disturbing,” Jury said.
What is unclear to outsiders is what, precisely, of substance can now be discussed during the meet and confer process, now that the city council has voted to go forward with the outsourcing.
San Bernardino City Attorney Gary Saenz this week told the Sentinel, “Primarily, those discussions will be with respect to the impact on individual members of the union as relates to outsourcing and the annexation to a county fire assessment district. The focus is to be how this will impact the firefighters. We are scheduled to have a telephone conference on Monday with Judge Jury to let her know what dates have been set for that conferring between the fire union and the city. I believe we will have five or six sessions over the next several weeks and the meet and confer process will have concluded by the end of October.”
Issues he anticipated to be brought up during the meet and confer sessions, Saenz said, will likely pertain to “ensuring each of the firefighters will have an opportunity to transition into the county fire service at as close of rank as is possible to their rank with the city and at a compensation that is as close to what they are receiving at the city, to the extent the county has the ability to do that.”
Saenz said it is likely the city’s current firefighting personnel below the rank of battalion chief will be accepted into positions with the county, based upon each individual firefighter’s “ability to meet the county’s physical, health, medical and drug testing qualifications. Those will have to be met as a minimum requirement for them to be hired. Those conditions will be consistent with the requirements the county has of all of its firefighters.”
Saenz said the meet and confer process between the city and the union will take place simultaneously with the city’s ongoing negotiations with the county over the fire service takeover.
“Judge Jury allowed the city to keep negotiating for the transition while the meet and confer process is taking place,” Saenz said.
Saenz clarified that the creation of the fire service assessment district will take place under the supervision of the Local Agency Formation Commission, known by its acronym LAFCO, and will most likely not involve a voting process at precinct voting stations but rather will entail a protest vote opportunity in which the city’s landowners will be afforded a temporal window within which they can protest the formation of the district by means of a mail-in ballot. If fifty percent plus one of those landowners mail in objections to the district’s formation before the elapsing of the deadline to submit those objections, Saenz said, the district formation will not take place. In the history of California, no denial of an assessment district by mail-in protest ballot has ever occurred. If between 25 percent and fifty percent of the city’s landowners register a protest, then a vote at precinct voting stations will be held.
“The LAFCO process involves a protest vote,” said Saenz. “If enough voters protest, that would mean the whole issue would either fail or go to another vote. If over fifty percent protest, the fire district annexation will not take place. If anywhere from 25 percent to fifty percent protest, it will go to the voters.” Saenz said the overwhelming odds were that the city’s residents would “accept the annexation. Chances are very small that it will fail. We have very low voter turnout in San Bernardino and I think that is an indication that rejection is not going to happen. The board of supervisors has agreed unanimously to apply to LAFCO for the annexation and the LAFCO board has agreed, I think also unanimously, to accept the application. Things at this point are looking good.”
Saenz said he did not believe that the firefighters union would mount an effort to block the fire assessment district creation, either. “We are going into our meet and confer process with them with an open mind,” he said. “The rank and file has been in opposition to some other things the city has attempted, where not only the union members but their wives and children showed up at council meetings to make a show of disapproval. They are not doing that with this, because this can be beneficial to all, including the firefighters. I don’t think there will be many standing in opposition to this.”

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