Thursday, June 25, 2009

Confused? Join the Club!

Today's long waited court hearing on DROP took place this morning. The judge rendered his decision and from the looks of it, was not very clear in his ruling. Case in point is the dueling press releases from the City Attorney and the SDPOA. During the hearing today, I received text messages from someone who was in the court. Who the person is does not matter; but what concerns me is the belief this person took away from court is similar to what the City Attorney reported in his press release. As the judge spoke during the hearing I received messages reporting the discussion. We all know how short text messages are and what type of information can be relayed in them. I would venture I received one hundred such messages and as they were coming in, I was becoming more and more concerned.

The last text I received was as follows; "judge acknowledges sdpd personnel are the best and have had their pay and benefits chopped away at for the last several years but he is not here today to rule on that. poa ordered to back to table to meet and confer about drop…the two parties are first to resolve the process first… poa has an obligation to meet on this issue. the court rules poa did not violate the mmb act. is drop an employment benefit… yes… the issues to be discussed is drop a betts issue. court declines to stop the change in entry age for now. to deal with the july 1st date sdcers and the city will respect the drop applications for july 1… for an unspecified time… to be determined later… as to interest rates… the court rules… rates… will stay place… 4 another 4 weeks." This is a person who sat through the hearing, listening to the sides argue and the judge presenting his ruling. To say there is confusion is an understatement. I shared the above text with several people at Headquarters after receiving it.

A few hours later I talked to Jeff Jordan, Vice President of the SDPOA. Jeff had a completely different opinion of what the judge had ruled. He explained; as the SDPOA press release stated; "Today, in Superior Court, the San Diego Police Officers Association prevailed in preserving the core benefit of the DROP program, which includes the ability to enter the program at age 50. San Diego Superior Court Judge David Oberholtzer ruled that while interest rate terms are negotiable, the DROP entry age is a vested benefit." Jeff said Mike Conger, the attorney who represented the SDPOA, believed the SDPOA prevailed on all issues critical to the DROP; with the exception of the interest paid to DROP accounts. Jeff said the judge ordered the SDPOA back to the table to discuss DROP, but also said any changes must be voted upon as prescribed by Charter Section 143.1.

Then I see the press release from the City Attorney that made me think I was in some dream world and confused. The press release said in part; "Superior Court Judge David Oberholtzer today refused to grant an injunction sought by the San Diego Police Officers Association (POA) against the City of San Diego to prevent changes in the DROP program. In addition, Judge Oberholtzer granted the City's petition for an order requiring the POA to "meet and confer" under state labor laws as to additional changes to DROP. The POA had resisted such negotiations, claiming the program was completely "vested". Judge Oberholtzer did not find that DROP benefits were "vested". Judge Oberholtzer found that DROP is a condition of employment. Judge Oberholtzer also held that there is no law requiring an actuarial study as a condition to meeting and conferring on changes and/or elimination of DROP. But rather, expected the City and POA to discuss this and other issues related to DROP when they meet and confer about DROP." So you can imagine the confusion? It is no wonder the general public cannot understand the issues related to DROP.

What do we know to be in agreement? The judge ordered the SDPOA to meet with the City to discuss DROP. That much in agreed upon by all parties. I think that is where the agreement ends. It will be several days and maybe weeks before we can get our hands on the actual ruling from the judge to understand the vast opinions of what the judge actually said. I think it is a sad state when intelligent people can sit in a court of law; educated in the rules and language; participate in the process and have such vast views of what occurred in a single hearing. It is one thing for a lay person sitting in the galley listening to the proceeding to misinterpret a ruling; but for professionals to have such issues is pathetic. Was the judge not speaking the king's language? Was he not clear in his decision and articulate enough to convey his message for all to understand?

If you are confused; you are not alone. The SDPOA will be working diligently to provide information to members in hopes of belaying the concerns the future holds. The mayor has made it clear his number one goal in life is eliminating DROP. He has worked tirelessly to reduce and eliminate the benefits of those who work for the City of San Diego. Rest assured he will seek a ballot initiative to ask the public to take DROP from workers. He is surly feeling his oats after today. He is popping the corks on his bubbly and toasting to a victory over the SDPOA. He cannot wait to get back to the table to wreak more pain and hardship on the SDPOA.

If ever there was a time for the membership of the SDPOA to come together to fight for a common cause; this is it. We cannot sit on the sidelines while our destiny is decided by others. We need to stand shoulder to shoulder and fight with our every breath for our rights and those benefits we have earned over the past 25 years.


Anonymous said...

I found two things very interesting the hearing that goes beyond what Sparky has blogged on tonight...

1. During the oral arguments discussion regarding fiduciary duties of SDCERS were broached. Everyone agreed SDCERS has two overarching duties. First and foremost the Board must protect the viability of the trust and secondly, the Board must protect the member's benefits. Then the discussion evolved to a new fiduciary duty... SDCERS has as duty to protect the City from itself. Huh? The parties agreed SDCERS does not set the benefits. They are set by the plan sponsor, and codified in the Muni Code by Ordinances. The judge believes SDCERS also has a fiduciary obligation to protect the trust from city officials who "grant benefits" beyond their ability to pay. The logic was if the city goes bankrupt because its granted benefit beyond its ability to fund them, then their first subsequent action to the bankruptcy will be an attempt to discharge the pension obligations. Thus putting the trust in jeopardy.

While I understand the reasoning, I know of no way the SDCERS Board could legally intervene in the City's meet and confer processes, i.e. contract negotiations. SDCERS has no authority whatsoever to adjust, modify, recommend, or alter in any way benefits. Additionally, this issue became moot in 2006 with the passage of Prop. B. It mandates any enhancement to pension benefits must now be approved by a "majority" of the electorate....whatever that means now..wink wink.

Anonymous said...

Second, during the hearing Counsel for the POA raised the issue of interest rates. He specifically sited what the POA calls the current 238 "DROP contacts". More specifically siting a deposition by David Wecoe and the DROP CONTRACT...

[DROP contracts are identical for all participants, changes are not allowed, and signed by City and SDCERS].)
Among the terms ofthose contracts, the member, the City, and SDCERS agree: "if benefits are improved or otherwise changed after I enter DROP, through meet and confer or any other process, I will not be eligible for any of these benefit improvements or changes." (NOL, Exhs. 14-23, p. 2.) DROP participants agreed to be "legally bound by th[e] Agreement."

The Judge, much to the the chagrin of Mr. Conger, who couldn't believe his ears, said, the DROP Agreements are employees agreeing to the terms set forth by SDCERS for participating in the DROP Program and NOT A CONTRACT.

Mr. Conger vehemently disagreed to no avail. This raises a very interesting question... So where does that leave 238 folks who believe that had a contact to work up to 60 months and then stop working for city. Can we renege on the "agreement" at the end of the period and demand continued employment???

Today's ruling is full of ambiguities. This goes back to one of the judges first comments from the bench regarding the unusual number of litigation brought against the City over labor agreements since 1930. Once again we find the leadership in the City of San Diego corrupt or incompetent, I'm not sure which is worse.

Anonymous said...

Hey! Last person out the door, turn off the lights! Oh, never mind - the City doesn't pay it's bills anyways....

POII Forever said...

WTF??? Did the City pay this judge??? I am so fed up with all of this I can't take much more. Where is the leadership in this City? Not one chief has spoken up for us; narry a captain speaks up to tell it like it is; Lieutenants? You have to be kidding right???

Hey Sparky have you put in for Chief? We could use someone up there who is not afraid to tell the truth and challenge a lie. Let's start a campaign to get Sparky appointed Deputy Chief. Oh, I forgot the mayor has some say in that and it would never happen.

Is it true Sparky is high up on the Lieutenant's list and has been passed over a couple of times already? I for one would work for you anytime, anywhere. You are a stand up guy who cares more about the cops than all the chiefs and captains put together.

Thanks Sparky!!

Anonymous said...

Carefully look at the words used by the POA. In part it said:

"Today, in Superior Court, the San Diego Police Officers Association prevailed in preserving the core benefit of the DROP program, which includes the ability to enter the program at age 50.

What exactly is meant by CORE benefits? Lets remember the POAs position...they said DROP is an indivdual right and they could not meet and confer with the city on it.
The Judge disagreed and ordered the POA back to the table to meet and confer on DROP with the City.

The city's, that is Jerry Sanders, goal is to eliminate the program from everyone who is not already enrolled in it. Why, because he has greater political aspiration and ending DROP will be another accomplishment he'll claim sole credit for.

But the DROP program as considerable value to employees. It exists today as part of teh overall compensation package. A program the city suggested when it didn't want to grant pay raises.

Even the hearing Judge recognizes the problem. When Brian Marvel had to leave the courtroom before the hearing ended, the Judge stopped Marvel and told him: SDPD personnel do an outstanding job, their compensation has been under attack for year, but his hands were tied as that was not the matter before him. The point of the statement as eluded to by the Judge was to let Marvel know, both he and the citzens do appreciate the work we do. The point was driven home earlier when the judge commented about the high number of litigations over the years caused by city. It was an indicator that City management rarely if ever gets it right, morally or legally.

But in yesterday's hearing the fact is the POA request for a permanent injuction WAS NOT granted no matter how the POA leadership wants to spin it.

Secondly, the CORE benefits the press release speaks about... yes they are protected for now. But it's only a matter of time, probably about a year, two at the most, before, if nothing else, the voters, who are angry about government pensions, will eliminate them for any employee who is not enrolled in the program. Anyone who doesn't believe the voters won't think about their wallets in these economic times is being foolish.

So now it's back to the table. The POA should remember this program has significant value, the City must remember enthusiasm will never replace experience no matter what Sander's sound bites hope for, the Citizens should realize, whether it is police of fire safety members, it's well trained and experienced people who provide the expected service, who can and will save their lives, solve the crime, rescue them from jeopardy.

It's time to find a fair and equitable solution, a compromise both sides can live with, remembering first, no one is completely happy with any compromised reached.

Don't Care Anymore said...

More spin by the City or did the judge really rule against the POA? Sparky we need answers sooner than later. You seem to be able to get to the bottom of reality much faster than the others.

I am looking to go to another agency to get out of San Diego. I am one of many that I know who are fed up with the City, the PD Administration and the POA. It has become clear none of them give a shit about US.

Thank you Steve for caring enough to put yourself out there to shed some light on what is happening.

Secretsalmon said...

This is post is looking to Anonymous’ 1 & 2 Posts for answers: Is it not true that in every instance where the City chose to under fund their contractual retirement obligations to SDCERS, that they did in fact have the funds available and the ability to fund the obligation, but instead chose to take that money and do something else? Isn’t also true that the way the City used these available funds were not necessarily required by contractual obligations as their obligations to SDCERS was? If both of the above statements/questions are in fact true than the Judge is in error in saying that it's SDCERS responsibility to monitor the City's ability to fulfill its contractual obligations. The City had the ability and funds to fulfill their obligations (and still do), but chose to fund other projects. The City could have funded the retirement obligations each year since 1996, but has chosen to use their money for other things. The fact that the City did this and decided to promote tourism, a baseball park for a private business, and other non-contractual obligations, with the money that could have been used to fund their retirement obligation, was their decision and theirs alone. SDCERS did, in a round about way, fulfill the Judge’s requirement that they have to know the City’s ability to pay, by the fact that the City has always had the money, and the ability to pay, but just decided to do other things with the money. Bottom line the City is responsible not retirees, not SDCERS, not Chicken Little, and not my dog Simon. I hope the Judge will finally put the responsibility where it belongs on the City, not the Police Officers Association and not the other city employees.

Anonymous said...

With all due respect Mr. Salmon, in a simplistic way this is what you said was done every year since 1996: Each year the City has $1000 budget and owed SDCERS $100; instead of paying SDCERS they promised to pay later; they then used the $100 to pay for other items, such as the ballpark, but each year they deferred paying SDCERS they used the money in the budget for something else. They always could pay, but chose not to. That's pretty simple,the Judge should know this. The City always had the money.

Anonymous said...

The point was the Judge believes SDCERS had, (yes in the past tense) a duty to weigh in on the benefit when it was granted. SDCERS did not becuase, it never saw this as a responsibility.
I believe this error by his honor is one of few items of logic that just did not make sense.

REMEMBER the parties had less than three weeks to prepare for this hearing after the initial TRO was issued. If Mr. Conger had more time to vett the circumstances since 1997, then prepare and test arguments the outcome may have been more favorable...

This is something the MEA may be able to analyze and exploit further. Ann Smith was in the courtroom for the entire hearing. She huddled with Conger on at least two instances, one extended during the midmoring recess, the other toward the end of closing for a very short exchange of information.

Remember DROP remains intact for now, but is vunerable under the ruling from this Judge. Sparkyt is ABSOLUTELY correct NOW IS THE TIME TO UNITE, to plan a counter offensive and to get OUR message on subject and IN FRONT OF THE MEDIA.

But this effort started off, well, to tell you the truth, like shit. Only one POA member appeared at the hearing for about an hour. One POA prez (99% of the hearing) and one POA director. (50% of the hearing) I believe I saw a message from MARVEL asking members on behalf of Mr. Conger, to pack the courtroom. No one did! I wonder what the judge was thinking about the total and absolute lack in interest in the process and the hearing. Especially since what was going on would or could affect public safety offices for the rest of their lives. I grant you it not "suppose" to affect his decision....but the judge is only human....

I hope, if nothing else, those of you remaining on the PD after this year's rape by the City will listen to Steve and put aside your petty differences.

Remember ths City has already managed to divide the POA labor group into two camps. Those with access to DROP and those hired after July 2005 who may or may not have access to DROP (Feb 2007 for sure). This alone will cause a rift to form in the membership. Different factions will want or need compensations. As the number of replacement officers grows replacing the ones who were forced into leaving before July 1st, needs will change. NOW IS THE TIME TO RESOLVE THIS ONCE AND FOR ALL.

sparky.sandiego said...

The above post from "Anonymous" is right on. The needs of those hired after DROP was eliminated from new hire benefits are different than those who have DROP. The SDPOA needs to balance the differing needs of what is now two classes of officer. This is going to be more and more difficult as the city pits one class against the other.

Creativity and selfless thinking will be required to meet the needs of ALL members. The core benefits are different and yet the pay is the same. Moving to a common ground is going to be difficult at best so other options will have to be considered and explored.

Things may never be the same; but that does not equate to a negative. There are many ways to improve benefits and yet change them from what we know them to be today. It will require sacrifice and trust. The hurdle with this mayor is there is not nor will there EVER be trust.

To make the changes necessary to reduce expenses and yet be able to provide acceptable benefits, will require a person with ethics, honor and trust in the mayor's office. Until that happens I see little if any hope of acceptable changes being worked out.

**** Posting comments using the "Anonymous" is boring and shows a lack of courage. Use the "Name/URL" above the anonymous and chose a nickname for your posts. Chose one and stick with it and that way people can reply to you and follow your thoughts and ideas. It's just a pet peeve of mine.... Thank you ALL for posting comments and reading my rants...

bill said...

You are so right Steve. NOTHING will change for the better as long as Sanders is Mayor. That is why I a. Leaving when I turn 50 next year & work somewhere else. I refuse to live like this anymore. Keep up the great work! People all over are starting to take notice.

Anonymous said...

An interesting question has been raised.

Can we renege on the "agreement" at the end of the period and demand continued employment???

Can I terminate my DROP contract, and just return to the regular SDCERS Safety system?

The mayor wants to eliminate DROP, so why not allow me to voluntarily terminate DROP and return to regular City employment status in the safety system??

Anonymous said...

Once the Judge's ruling and the transcripts from the hearing published, then we'll see if Pandora's Box has been opened.

But then again if you've reached the 90% cap what would be the point?