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HomeMy WebLinkAboutMINUTES-06/13/2006-AdjournedJune 13, 2006 COUNCIL OF THE CITY OF FORT COLLINS, COLORADO Council -Manager Form of Government Adjourned Meeting - 6:00 p.m. An adjourned meeting of the Council of the City ofFort Collins was held on Tuesday, June 13, 2006, at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll Call was answered by the following Councilmembers: Brown, Hutchinson, Kastein, Ohlson, Roy, and Weitkunat. Councilmembers Absent: Manvel Staff Members Present: Atteberry, Krajicek, Roy. Resolution No. 2006-067 Submitting a Citizen -initiated Charter Amendment to a Vote of the Registered Electors of the City at a Special Municipal Election of September 12 2006 Adopted Following is staff s memorandum on this item: "EXECUTIVE SUMMARY On May 19, 2006, the City Clerk's Ofice received an initiative petition to amend the City Charter relating to collective bargaining. The petition was determined to contain a sufficient number of signatures to place the initiated measure on a special election ballot. Pursuant to C.R.S. 31-2- 210(4), if the petition is certified as sufficient by the City Clerk the election must be held as near as possible to the approximate date stated in the petition (September 12, 2006). On June 6, 2006, Council adopted on First Reading Ordinance No. 103, 2006 calling a special election on September 12, 2006. This Resolution submits the measure to the voters at that election and sets the ballot language for the measure. " City Manager Atteberry stated there would be a brief staff presentation. City Clerk Krajicek presented background information regarding the agenda item and stated this Resolution submits the citizen -initiated Charter amendment regarding collective bargaining to the September 12 ballot. Mayor Hutchinson asked if this Resolution is the obligation of Council to place this issue on the ballot because of the citizen petition. Krajicek answered in the affirmative. 1W. June 13, 2006 Councilmember Roy made a motion, seconded by Councilmember Ohlson, to adopt Resolution 2006-067. Yeas: Councilmembers Brown, Hutchinson, Kastein, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Resolution 2006-068 Expressing the City Council's Opposition to a Citizen -initiated Charter Amendment Pertaining to Collective Bargaining Adopted Following is staff s memorandum on this item: "EXECUTIVE SUMMARY A special election has been called for September 12, 2006, for the purpose of submitting to the electors of the City a proposed amendment to the City Charter which would establish a system of collective bargaining to replace the system that is contained in the City Code. City staff recommends that Council express its opposition to the proposed Charter amendment and urge the electors not to vote for the amendment, primarily because the system, unlike the one contained in the City Code, would entail binding arbitration, it would allow for renegotiation of the collective bargaining agreement already in place between the Fraternal Order of Police and the City, and it would preclude any reduction in compensation or benefits ofpolice employees unless the members of the bargaining unit consented to such reduction. Staff believes that the system of collective bargaining contained in the City Code offers adequate opportunity for good faith bargaining between the City and its police employees. BACKGROUND An initiative petition proposing an amendment to the City Charter pertaining to collective bargaining has been submitted to the City Clerkand has been determined to be sufficient forplacing the proposed measure on the ballot at a special election to be held September 12, 2006 The collective bargaining provisions which would be added to the City Charter under the proposed Charter amendment would replace an existing system of collective bargaining established in Chapter 2, Article VII, Division 7 of the City Code. That system, which had been approved by the electors of the City in August of 2004, was subsequently modified by order of Court, primarily to eliminate the binding arbitration provisions of the system since those provisions were inconsistent with the City Charter. The new collective bargaining system that would be established pursuant to theproposed Charter amendment would be similar inmost respects to the existing system in the City Code except that it would re-establish binding arbitration if an impasse was reached between the City and the bargaining unit with regard to the terms and conditions of a collective bargaining agreement. It would also allow the existing collective bargaining agreement that was reached last year to be re -opened and renegotiated, with that agreement being the `.floor" for any future 109 June 13, 2006 negotiations, so that the compensation and benefits of members of the bargaining unit could only be increased in thefuure and not decreased unless the bargaining agent agreed to such a reduction. These concerns are discussed at greater length below. 1. The Fraternal Order of Police ("FOP') has claimed that the City has ignored the will of the voters and failed to negotiate in good faith, and that binding arbitration is necessary to bring the City to the table. Why this statement is aproblem: From May through September, 2005, the City and the FOP negotiated the terms of the current contract with give and take on both sides. The City voluntarily gave five FOP negotiators paid time off to negotiate with the City. When the FOP declared an impasse in the negotiations, the City exercised its right to challenge portions of the collective bargaining ordinance in court. The FOP and the Court agreed that portions of the ordinance were inconsistent with the City Charter and those provisions were invalidated. The provisions of the ordinance that were left in place permit collective bargaining and mandate good faith negotiations, and those provisions resulted in a collective bargaining agreement that was signed by both the City and the FOP. The City remains willing to follow the valid provisions of that ordinance, including those provisions which allow the police employees to organize and bargain collectively, engage in bargaining in good faith, and enter into a contract that both the City and the FOP consider fair. City employees, whether in Police Services or other service areas of the City, are valued and appreciated. They are competitively compensated, with due consideration given to the financial condition and needs of the City. The Charter amendment, with its binding arbitration and prohibition on any reduction in pay or benefits, will skew the job market concept of employment, drive up the cost of government, and severely limit local control of City finances, all to the taxpayers' detriment. 2. The adoption of the Charter amendment would allow the FOP to reject the two year collective bargaining agreement it signed with the City on September 21, 2005, and require the City to re -negotiate a new agreement for 2007. Why this provision is a problem: Under the existing collective bargaining system, the City and the FOP bargained in good faith to come up with a two-year agreement that runs through 2007. The FOP is asking the voters to allow them to repudiate the agreement. Negotiations are costly and time consuming, requiring both sides to dedicate upper -level staff time to the process and to hire attorneys, consultants, and experts. Staff believes that it makes no sense to go through this process again when the City and the FOP reached an agreement acceptable to both at the time. Not only would the FOP have a right to reopen all of the terms in the current agreement dealing with mandatory subjects of bargaining and renegotiate them for 2007, it would have the right to introduce any other mandatory subjects that are not covered in the existing agreement and allow them to take all of those to binding arbitration. Significantly, that agreement and all of its terms were conditioned on a two year agreement; the FOP now wants the right to get the benefits of the 110 June 13, 2006 first year of the agreement (many of which would not have been in place if it had simply been a one year agreement) and not be bound by any of the provisions in the second year. 3. Under theproposed Charter amendment, the current contract benefits and any additional benefits offered to police employees outside the contract could never be reduced, no matter what the financial condition of the City or the citizens' willingness to pay, unless the FOP agreed to the reduction. Not even an arbitrator could rule that lower benefits were appropriate. This `floor" means that benefits could only be increased but never decreased. Why this provision is a problem: If the FOP were allowed to renegotiate its agreement, that agreement and all the other employee policies in place at the present time would become the ' floor" for such future negotiations under this Charter amendment, because the Charter amendment would prohibit pay range reductions, reductions in leave accruals, reductions in insurance coverage, and increases in insurance premiums, deductibles and co pays, unless the FOP agreed to the change. This one-sided provision would drive the cost to the taxpayer in only one direction for this group of employees. The taxpayer foots the bill when salaries and benefits go up. In the tough financial times that Fort Collins is currently experiencing, salaries and benefits cannot always go up. Sometimes, insurance co pays and deductibles must be raised and insurance coverage reduced to avoid huge cost increases and to stay in line with other cities and private employers. 4. Under the proposed Charter amendment, if the City and FOP were unable to agree on an issue such as rate of pay or days of vacation, the City would have to go through binding arbitration. A professional arbitrator would be brought in to conduct a hearing and decide what the pay and benefits will be for up to two years. Why this provision is a problem: Binding arbitration means that an unelected third party not accountable to the taxpayers would make the final decision as to how City tax revenues should be spent. And, arbitration is costly. While the City would pick the pool of arbitrators, for all practical purposes, the minimum qualif cations for the arbitrators set forth by the Charter amendment would limit the pool to attorneys who specialize in labor issues. The daily rates for preparing for the hearing, conducting the hearing, and writing a decision range from $750 to $2,100 per day plus costs and expenses and from $100 to $300 per hour for partial days. The taxpayers would pay half of these costs. Depending on the number of issues reaching impasse, the arbitrator hearings could be lengthy. The staff time dedicated to arbitration hearings would be substantial and with the financial stakes associated with a two year contract being so high, it's likely that both the City and the FOP would incur the costs of expert witnesses. Not only is binding arbitration expensive and time consuming but, more importantly, it removes the taxpayers' elected representatives and the City Manager from theprocess ofdeciding where limited Cityfinancial resources are to be spent. Absent fraud, corruption, or arbitrariness on the part of the arbitrator, it is almost impossible to have an arbitrator's decision reversed by a court. Staff believes that it is not in the best interests of the taxpayers to have critical financial issues decided by an attorneyfrom a different city or state who probably has no idea about the local issues that are facing Fort Collins and who is not in touch with community values. ill June 13, 2006 5 The Charter amendment would use national salary and benefit data to establish to local compensation and benefits. Why this statement is a problem: Section 17.10(E) of the Charter amendment would direct an arbitrator to consider, in resolving an impasse as to compensation and benefits, the compensation, benefits, hours, and other terms and conditions ofemployment ofother law enforcement employees performing comparable services in public employment in comparable national and local communities. Requiring comparison with comparable "national" communities could be problematic, since the market and cost of living in other areas of the country may differ very substantially from Fort Collins, the cost of sampling on a national basis will likely be substantial. 6. The FOP has claimed that the Charter amendment is needed because police employees have been under -compensated by the City. Why this statement is a problem: This claim is simply not true. While the majority of City employees had to adhere to a pay freeze for merit and skill increases in 2004 and 2005, only the Police Sworn positions continued to receive skill increases to the maximum of their pay range. The 2004 and 2005 skill increases for Police Sworn positions ranged from 6.94% to 13.74%. All of this occurred prior to the implementation of the collective bargaining agreement between the City of Fort Collins and the FOP. In 2006, the City implemented a new pay plan and granted pay increases to all employees including members of the bargaining unit. The 2006 skill increases for the bargaining unit members ranged from 7.93% to 14.83%. Those that are not at the 2006 pay range maximum are eligible to continue to receive additional skill increases in 2006. The 2006 COLA, merit, and skill increases for the remainder of the City employees ranged from 5.9% to 10%. Other City employees are not eligible to receive additional merit or skill increases in 2006. Pay range maximums for all City employees, including members of the bargaining unit, are based upon market data gathered from a variety of organizations along the Front Range of Colorado. While the benchmark organizations used in this process (and recommended by a consultant in 2004) may not be totally agreed upon by the FOP, the City's benchmark organizations are those that are similar in size and services to Fort Collins. The benchmark organizations include twelve cities, five counties, and the State of Colorado. The City has been acknowledged as a "safer community "and an"idealplace to work" where other organizations along the Front Range have not. Basedonsize, services, safer community, etc., organizations such as the City/County of Denver are not included as a benchmark. In addition, an average actual pay analysis was recently conducted by the City's HR department. The average actual pay of the members of the bargaining unit average actual pay falls anywhere from 2.19% to 13.99% above the benchmark organizations'average actualpay. Thesepercentages include the five counties and the State of Colorado. Some might say that county sheriffs perform different duties than patrol/detective officers, so if you take out the counties and State of Colorado 112 June 13, 2006 from this analysis, average the actual pay of the members of the bargaining unit falls from 1.13% to 13.36% above the 12 benchmark City's average actual pay depending on the job being considered. In summary, not only are the pay range maximums set at the 70th percentile ofthe labor market but the bargaining unit members' average actual pay falls well above those of their peers along the Front Range of Colorado. Lastly, members of the bargaining unit continue to contribute to their retirement plans (401 a and 457) at a higher percentage than other City employees. In addition, the employer contribution (match) into the retirement plans for these employees is greater than the contribution made by the Cityfor the remainder ofthe organization with the exception ofthe Council Employees and Service Area Directors (a total of 11 employees). 7. The Charter amendment states that the provisions of a collective bargaining agreement would override any conflicting ordinance of the City. Why this statement is a problem: The City Council has elected to make important policy decisions for the City and its members are accountable to the citizens for those decisions. The Charter amendment states in Section 17.14(B) that whenever there is a conflict between the terms of a collective bargaining agreement and any rule, executive order, procedure, policy or even any ordinance of the City which is applicable only to employees of the City, the provisions of the collective bargaining agreement, would prevail. This means that the decision of an unelected, arbitrator could override ordinances adopted by the Council or even any ordinance adopted by the electors of the City. 8. The FOP has claimed that the City has plenty of money in the form of reserves which could easily be used to fund increased salary and benefits for police employees. Why this statement is aproblem: Many of the reserves referred to by the FOP are restricted for specific uses that cannot be legally diverted to other uses. For example, Art. X, Sec. 20 ofthe state constitution requires that the City maintain an emergency reserve to respond to natural disasters such as the 1997 food or the 2003 blizzard. As of year end 2005, this reserve balance was $3.6 million. In addition, reserves resulting from specific program revenues are set aside to be spent exclusivelyonthoseprograms. Two significant examples are the PoliceDepartment'scamera radar program and its participation in the Larimer County Drug Task Force. Reserves for these two programs totaled $1.1 million at year-end 2005. Additionally, expenditure of resources does not always occur uniformly within a 12 month period as presented in the budget. As a result, the related program or project encumbers the funds that are committed to third party vendors for its completion. As ofyear-end 2005, approximately $8.2 million ofthe reserves were committed to third party vendors. So while the City General Fund Balance actually increased by $3.2 million during 2005, a significant portion of that increase was used to fund the restricted reserves described above. It should be noted that, aside from the restricted reserves, the City continues to maintain a fnancial uncertainty designation set at a minimum of 3.5% ofthe General Fund expenditures. Prior to the 113 June 13, 2006 2002 recession, this reserve stood at approximately $5.9 million, well above the minimum. As of year-end 2005, this balance (funded at the minimum level) totaled $3.2 million. While this amount is still significant, it is only intended for unforeseen budget shortfalls. It is not intended to be spent on enhancing the salary and benefits of City personnel. Even if the reserves could be used to fund increases in police pay and benefits, the reserves are one- time moneys. The flow of fords into these reserve accounts is insufficient to pay the ongoing year - after -year amounts that would be necessary for salary and benefit increases. Remember that the Charter Amendment provides that the salary and benefits can only be increased, not decreased, so the need for additional funding will go up each year. The reserved funds won't be used for their intended purposes and the cash flow necessary to fund salary and benefit increases will not be available. It is not responsible to use reserved funds to satisfy ongoing salary and benefit increases, especially in light of the anticipated $6.8 million 2007 budget shortfall. 9. The FOP has claimed that the Charter amendment is needed to improve police staffing, services, and public safety. Why this statement is a problem: The Charter amendment specifically states that "standards of service" of the police department and the City and training of officers are prohibited subjects of bargaining, and "staffing of the police department" is only a permissive subject for bargaining. Thus, collective bargaining will do nothing to ensure public safety, higher staffing levels or higher service levels of Police Services. If anything, the Charter amendment will lead to fewer dollars being available for increased staffing and services because the dollars will instead go towards negotiation and arbitration expenses and increased salaries and benefits for current police employees. The constant "negotiating"for salary and benefits required by the Charter Amendment is far more likely to distract police personnel from law enforcement duties. Paying FOP negotiators to negotiate instead of performing their law enforcement duties will do nothing to promote public safety or add officers to the streets. The petition circulators and the FOP officials have not accurately stated the substance and intent ofthe CharterAmendment. The CharterAmendment does not help police officers fight crime, but rather will lead to a system of preferential treatment, divisiveness, and mistrust that will harm the relationship amongpolice employees, other employees of the City, City management, and citizens. Sta ff Recommen dation: For the foregoing reasons, staffrecommends that Council adopt theproposedResolution expressing Council's opposition to the proposed Charter amendment and urging the electors ofthe City to vote against the Charter amendment." City Manager Atteberry stated there was no staff presentation but staff was available to answer questions. 114 June 13, 2006 Al Baccili, 520 Galaxy Court, stated the City should accept binding arbitration with the FOP. Mayor Hutchinson asked City Attomey Roy to clarifywhether collective bargaining, now part of the City Code, would be altered with this proposed Charter amendment. Roy stated there was an earlier initiative that resulted in the adoption of an ordinance that established the system of collective bargaining in the City Code. The system has since been modified by stipulation of the parties and by order of the Court to eliminate binding arbitration and one or two other provisions but the obligation to bargain "in good faith" already exists under City Code. The proposed Charter amendment would establish a different system, including binding arbitration, in place of the one that already exists. City Manager Atteberry stated police officers do not serve at the pleasure of the Police Chief or the City Manager and can only be terminated for "cause". Police officers are classified employees, not unclassified management. If the Chief determines there is cause, then an extensive process is followed to terminate a police officer. Councilmember Weitkunat made a motion, seconded by Councilmember Brown, to adopt Resolution 2006-068. Mayor Hutchinson noted Council had passed a Resolution urging citizens not to sign the petition but since the petition did contain sufficient signatures, then Council had exercised its responsibility to place the issue on the ballot. This Resolution answered the question that had been raised as to why Council opposed the amendment. Councilmember Roy stated the FOP had given misinformation in claiming the City had ignored the will of the voters by failing to negotiate "in good faith" so that binding arbitration was necessary to bring the City to the table. However, following voter approval of collective bargaining in August of 2004, the City successfully negotiated the terms of the current contract with the FOP, which is a contract agreed upon by all sides. Council and management appreciates the hard work and dedication the police officers give to the City and the current contract reflects competitive compensation. Five negotiators in the FOP were given time off by the City to conduct the contract negotiations. The FOP and the City agreed that a portion of the voter -approved ordinance dealing with having a third party make final compensation decisions was invalid as it conflicted with the City Charter. A binding arbitration system will pass final decisions on pay and benefits to a third party. Having a third party make those final decisions, instead of Council, takes control of scarce city resources from Council. Councilmember Ohlson stated he had a problem with binding arbitration, especially in the public sector but not with collective bargaining, in general. Thorough job protection is in place for police officers so that it is difficult to terminate an employee in the public sector. Also, to have an outside arbitrator decide issues of compensation and benefits is expensive and to have an outsider make these decisions at the expense of other employees could create a two-tier system for the City, as the resources of the City are limited. Council, which is accountable to the citizens through the ballot box, would not be the final decision makers. 115 June 13, 2006 Councilmember Brown stated one of the claims made by the FOP is that police employees are under compensated by the City. The reality is police employees receive pay from a range of 2.1% to 13.99% above the benchmark average for police positions. The benchmark figures area comparison of a variety of organizations along the Front Range, including 12 cities, 5 counties, and the State of Colorado. Fort Collins paid a very competitive rate of salary and skills increases for 2006 ranging from 8% to 14%. Police officers received a higher increase of pay than other city employees. Councilmember Weitkunat addressed the claim by the FOP that the City has "plenty of money in the form of reserves that could easily be used to fund increased salaries and benefits for public employees". The claim is wrong and, even if it were correct, it would be reckless. The City maintains its reserves for emergencies and unanticipated expenses. Tabor requirements limit what the City can do with the reserves. Specific reserves are dedicated to the Police Department from such sources as Camera Radar, but those funds are earmarked for specific programs and cannot be used for general operating expenses. It is not responsible for the City to use reserve funds to satisfy ongoing expenses such as salaries. Councilmember Kastein noted having an arbitrator outside the City organization, itself is difficult and sets the FOP apart from other City employees and would give the FOP members preferential treatment. The proposed Charter amendment contains language that states what is actually negotiated has to be better deal than the deal made the previous year. Only the FOP can agree to something less than they are receiving today. When negotiations go to an arbitrator, not even the arbitrator has the ability to put any reduction of benefits on the table, unless the FOP agrees. If employees are asked to pay more in health benefit coverage and the FOP doesn't agree to that, then the FOP doesn't have to pay the extra amount. The FOP has claimed the Charter amendment will improve police staffing and public safety. However, the Charter amendment specifically states that "standards of service" of the Police Department and the City and training of officers are prohibited subjects of the bargaining agreement. The claims of the FOP that the amendment will guarantee increased staffing levels in Police Services are specifically contrary to the proposed Charter Amendment. The constant negotiating for contracts will detract from levels of service. The amendment does not help police officers fight crime, but instead creates a system that will lead to preferential treatment, divisiveness, mistrust and creates an adverse environment. Mayor Hutchinson stated these comments do not reflect Council's opinion of the police, as the quality of police officers in the City is exceptional. Due to major shifts in the economy in Northern Colorado and Fort Collins, the City is making adjustments to keep the cost of government low. One of the cost adjustments to all City employees concerns health benefits. If no changes in health benefits are made, a large percentage of the City budget will go to pay health costs in the next decade. City employees will be asked to increase their cost contributions for health benefits to "not break the City bank" in the future. The City needs the flexibility to adjust benefits such as health benefits and the "floor" set by the proposed Charter amendment would cause great difficulty for the City as changes could not be made to insurance deductibles and co -pays. Also, it is quite probable the arbitrator, an unelected decision maker, would be quite familiar with the problems of the Police Department but would be very unlikely to have any knowledge of the other problems throughout the city organization. The Council does have that knowledge and brings that knowledge to the table. 116 June 13, 2006 Councilmember Ohlson echoed the praises of the Police Department and stated this issue is separate from Council's opinion of Fort Collins police officers. It is a difference of policy and what Council thinks is best for the community but is not reflective of the police force. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Executive Session Authorized Councilmember Weitkunat made a motion, seconded by Councilmember Brown, to adjourn into Executive Session under Subsection 2-3 1 (a)(1)(a) of the City Code for the purpose of conducting the mid -year performance reviews of the City Manager, Municipal Judge, and City Attorney. Yeas: Councilmembers Brown, Hutchinson, Kastein, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. ("Secretary's Note: The Council adjourned into Executive Session at 6:30 p.m. and reconvened following the Executive Session at 8:45 p.m.) Adjournment Councilmember Weitkunat made a motion, seconded by Councilmember Roy, to adjourn the meeting to 6:00 p.m. on June 27, 2006 to consider a Resolution authorizing the City Manager to execute a capital funding grant agreement with the Federal Aviation Administration for improvements at the Fort Collins -Loveland Airport. Yeas: Councilmembers Brown, Hutchinson, Kastein, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. The meeting adjourned at 8:45 p.m. ATTEST: 117 Mayor