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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 2 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. 3 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 4