HomeMy WebLinkAbout2005-085-07/19/2005-DIRECTING THE CITY ATTORNEY TO FILE A DECLARATORY JUDGMENT ACTION IN THE DISTRICT COURT REGARDING TH RESOLUTION 2005-085
OF THE COUNCIL OF THE CITY OF FORT COLLINS
DIRECTING THE CITY ATTORNEY TO FILE A DECLARATORY JUDGMENT
ACTION IN THE DISTRICT COURT REGARDING THE VALIDITY
OF CHAPTER 2, ARTICLE VII, DIVISION 7 OF THE CITY CODE
PERTAINING TO COLLECTIVE BARGAINING
WHEREAS, the City of Fort Collins (the "City") is a home rule city established under the
provisions of Article XX of the Colorado Constitution; and
WHEREAS, as such, the City has the constitutional authority to govern its local affairs
pursuant to the provisions of its home rule charter (the "Charter") and the ordinances of the City;
and
WHEREAS, the Charter is the organic law of the City and all ordinances of the City must
be consistent with the provisions of the Charter; and
WHEREAS, Article XXI , Section 4 of the Colorado Constitution states that every person
having authority to exercise or exercising any public or governmental duty,power or function,shall
be an elective officer,or one appointed,drawn or designated in accordance with law by an elective
officer or officers,or by some board,commission,person or persons legally appointed by an elective
officer or officers, each of which said elective officers shall be subject to the recall provision of the
constitution; and
WHEREAS, in interpreting this constitutional provision, the Colorado Supreme Court(the
"Court")has held that the decision-making authority of the officers of a home-rule municipality may
be submitted to binding arbitration for collective bargaining purposes only under limited
circumstances,and such delegation of authority has been approved by the Court only in the context
of collective bargaining provisions that are contained in the municipal charter itself, and
WHEREAS, Article II, Section 5 of the Charter vests in the City Council all powers of the
City except as otherwise provided by the Charter; and
WHEREAS,Article III,Section 2 of the Charter vests in the City Manager the responsibility
for the proper administration of all affairs of the City and to appoint and, when necessary for the
good of the service, remove all employees of the City; and
WHEREAS, Article V, Section 4 of the Charter states that the City Council is responsible
for appropriating such revenues as are, in the Council's judgment, needed to defray the anticipated
expenses of the City; and
WHEREAS, the Charter is silent with regard to collective bargaining; and
WHEREAS,Article IV, Section 8 of the Charter states that it may be amended in the manner
provided by state statute; and
WHEREAS, at a special City election held on August 10, 2004, the voters of the City
approved Citizen-Initiated Ordinance No. 001, 2004, (the "Ordinance") which contains a
comprehensive scheme for collective bargaining between the City and certain employees of its
Police Services; and
WHEREAS, the Ordinance has been codified in Chapter II, Article VII, Division 7 of the
City Code; and
WHEREAS, the Ordinance does not, and cannot, amend the Charter; and
WHEREAS, Section 2-632 of the Ordinance states that"the compensation, fringe benefits
and other terms and conditions of employment granted to police employees by policy, ordinance or
Charter as of the date of adoption of the Ordinance shall not be reduced except by voluntary
agreement between the "Corporate Authorities" as defined by the Ordinance and the bargaining
agent; and
WHEREAS,the Ordinance calls for a period of collective bargaining between the"Corporate
Authorities," and the bargaining agent; and
WHEREAS, under the Ordinance, if the Corporate Authorities and the bargaining agent
cannot reach an agreement regarding the mandatory subjects of collective bargaining after a
specified period of time, the unresolved issues must be submitted to an arbitrator for a decision
which would be binding upon the City Council and the City Manager; and
WHEREAS, the issues that may be submitted to binding arbitration under the Ordinance
include, but are not limited to, procedures for disciplining and, if necessary, terminating members
of the bargaining unit; the amount of City revenue that must be committed to the compensation and
fringe benefits of such employees;the number of hours in the workweek;the definition and benefits
of seniority; provisions of personal safety and health equipment; procedures relating to
labor/management cooperation and communication; the notice and the time intervals regarding
changes of shifts and the emergency exceptions thereto;procedures and notice relating to the layoff
and recall of employees; a dues check-off and/or fair share clause;grievance and grievance binding
arbitration procedures for matters included in the agreement; the number of shifts and times the
shifts begin and end;procedures for internal investigations;procedures for promotions,assignments,
rotations and transfers; the number of hours in a work shift; and physical, mental, drug, and/or
alcohol testing; and
WHEREAS,the City Council cannot,by ordinance,be divested of the final authority granted
by the Charter to determine the amount of City revenue that will be appropriated each year for the
compensation and benefits of City employees, and the City Manager cannot be divested, by
ordinance, of his final authority under the Charter to establish the terms and conditions of
employment of the members of the bargaining unit,including decisions regarding the discipline and
termination of such employees and the administrative policies applicable to such employees; and
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WHEREAS, pursuant to the Ordinance, the City has attempted in good faith to reach an
agreement with the members of the bargaining unit, through the bargaining agent, regarding the
terms and conditions of their employment, and such negotiations have resulted in an impasse
between the parties; and
WHEREAS, the Ordinance requires that the Mayor must select an arbitrator who would
make final decisions regarding the issues that have not been resolved between the Corporate
Authorities and the bargaining agent; and
WHEREAS, the City Council believes that selecting an arbitrator and proceeding to
arbitration as required by the Ordinance would constitute an unlawful delegation of the powers and
responsibilities of the City Council and City Manager as contained in the Charter; and
WHEREAS, the City Council believes that it would not be in the best interests of the City
to proceed to binding arbitration as required by the Ordinance unless and until a court of competent
jurisdiction determines that the City Council and the City Manager can be required by Ordinance
to do so.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the Mayor shall not designate an arbitrator as required by the Ordinance
unless and until he is authorized and required to do so by the order of a court of competent
jurisdiction.
Section 2. That the City Attorney is hereby directed to forthwith file a declaratory
judgment action in the District Court for the Eighth Judicial District of Colorado, and such other
pleadings as he deems necessary, for the purpose of challenging the validity of the Ordinance under
the Charter and Colorado Constitution.
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Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 19th
day of July, A.D., 2005. ag
MayoKJ
ATTEST:
M'
V
City Clerk
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