The URL can be used to link to this page

Home My WebLink AboutAgenda Council Agenda 071112 (Special Meeting)' ~- {;;[l'iD : vj,(]J ,_..-' LJ. 7 .> . -, CITY OF PALM BEACH GARDENS SPECIAL MEETING COUNCIL AGENDA July 11, 2012 4:00P.M. MayorLevy .......- Vice Mayor Premuroso Council Member Tinsley ........- Council Member Russo ......- Council Member Jablin I. /PLEDGE OF ALLEGIANCE ill. /PUBLIC HEARING: a. POLICE BENEVOLENT ASSOCIATION (PBA) IMPASSE RESOLUTION. ~-0 IV. ADJOURNMENT PLEASE TAKE NOTICE AND BE ADVISED that if any interested party wishes to appeal any decision made by the City Council with respect to any matter considered at this public hearing, such interested persons will need a record of the proceedings and may need to ensure that a verbatim record is nuule, inclMding the testimony and evidence Mpon which the appeal is to be based In accordance with the Americans with Disabilities Act and Section 286.26, Florida StatMtes, persons with disabilities needing special accoiiiiiiOdotions in order to participate in this proceeding are entitled to the provision of certain assistance at no cost. Please call the City Qerk's Office at 561-799-4122 no later than 5 days prior to the hearing if this assistance is required For hearing impaired assistlulce, ~call the Florida Relay Service Numbers: 800-955-8771 (TDD) or 800-955-8770 (VOICE). NOTE: All presentation materials must be received by the City Clerk prior to the presentation to the Council. CITY OF PALM BEACH GARDENS SPECIAL MEETING COUNCIL AGENDA July 11, 2012 4:00P.M. Mayor Levy Vice Mayor Premuroso Council Member Tinsley Council Member Russo Council Member Jablin I. PLEDGE OF ALLEGIANCE II. ROLL CALL m. PUBLIC HEARING: a . POLICE BENEVOLENT ASSOCIATION (PBA) IMPASSE RESOLUTION. IV. ADJOURNMENT PLEASE TAKE NOTICE AND BE AD VISED that if a11y i~~terested party wishes to appeal any decision made by the City Council with 1Y!Sp«< to any matter considered at this public hearing, such interested persons will need a record of tire proceedings and may need to ensure that a verbatim record is made, inclllding tire testimony and evidence upon which the appeal is to be based In accordance with the Americans with Disabilities Act and Section 286.26, Florida Statutes, persons with disabilities needing special accommodotions in order to participate in this proceeding are entitled to the provision of certain assistance at no cost. Please call the City Qerk's Office at 561-7994122 no later tlran 5 days prior to the hearing if this assistance is required For hearing impaired assisttmce, p~ call the Florida Relay Service Numbers: 800-955-8771 (TDD) or 800-955-8770 (VOICE). NOTE: All presentation materials must be received by the City Clerk prior to the presentation to the Council. COMMENTS FROM THE PUBLIC Request to Address City Council Members of the public may address the City Council during the "Comments by the Public" portion of the agenda and during "Public Heari.ngs". This Request to Address the City Council must be delivered to the City Clerk prior to the commencement of the meeting. The time limit for each speaker is limited to three (3) minutes. Please Print COMMENTS FROM THE PUBLIC Request to Address City Council Name : D ~ \J~ b\o M.~ Address : y f z L J:\e~ Q ve-\e 5 City: ~(;1 Subject: eo,~,... ~~'{)4--JS'f Members of the public may address the City Council during the "Comments by the Public" portion of the agenda and during "Public Hearings". This Request to Address the C ity Council must be delivered to the City Clerk prior to the commencement of the meeti ng. The time limit for each speaker is limited to three (3) minutes. Please Print Name : ::r<X. Lv(l~&/1<-> COMMENTS FROM THE PUBLIC Request to Address City Council Address : C, () 0 l3o.o~ao B I" J u I City: WP« E L Subject: \rn(lesfrt ~so ) .... rbq{) Members of the public may address the City Council during the "Comments by the Public" portion of the agenda and during "Public Hearings". This Request to Address the City Council must be delivered to the City Clerk prior to the commencement of the meeti ng . The time limit for each speaker is limited to three (3) m inutes. Please Print Comments From The Public Request to Address City Council Name: -1"~ JZ.o~~~ Address: f k 'i J3 ~1N ~l'rll I SJ t'C jJ V city: e ~ <;.- Subject: Members of the public may address the City Council during the "Comments by the Public" Portion of the agenda and during "Public Hearings". This Request to Address the City Council must be delivered to the City Clerk prior to the commencement of the meeting. The time limit for each speaker is limited to three (3) minutes. COMMENTS FROM THE PUBLIC Request to Address City Council Please Print Name: f!A f{o/ esY~J_6 - Address: : 3 /) 'f Ri r/e.J'··~;y a~ t:¥ ' City: Subject: f,~-6/ ·----------- . &J,c:~ &&~L Members of the public may address the City Council during the "Comments by the Public" portion of the agenda and during "Public Hearings". This Request to Address the City Council must be delivered to the City Clerk prior to the commencement of the meeting. The time limit for each speaker is limited to three (3) minutes. ' . .. . ' Name: City: Subject: COMMENTS FROM THE PUBLIC Request to Address City Council Members of the public may address the City Council during the "Comments by the Public" portion of the agenda and during "Public Hearings". This Request to Address the City Council must be delivered to the City Clerk prior to the commencement of the meeting. The time limit for each speaker is limited to three (3) minutes. .------------------------------------------------------------------------------------------l I I I I I I I I I I I I I I I I I I I TO: FROM: CC: DATE: CITY OF PALM BEACH GARDENS MEMORANDUM Mayor and Council Members Ron Ferris, City Manager ~~ Palm Beach County PBA, Gary Lippman, General Counsel Robert L. Norton, Esq. July 2, 2012 SUBJECT: PBA Impasse Resolution Attached hereto are the Special Magistrate's Recommended Decision issued on June 5, 2012, and the City's Partial Rejection of the Special Magistrate's Recommended Decision. Additionally, I have received the attached Notice of Special Magistrate Recommendations Rejected by the PBA, which I have taken into consideration in my review of this matter. In ac.cordance with Florida Statutes Chapter 447.403 (4) (a), it is my obligation to submit to the City Council my recommendations for settling all the disputed issues. It is my recommendation that the City Council adopt in its entirety the position taken by the City in response to the Magistrate's decision (attached as the City of Palm Beach Gardens' Partial Rejection of Special Magistrate's Recommended Decision with Exhibits 1 -13). The referenced Exhibits 1 -13 are the Articles and Retirement Plan at issue with the language in legislative format that I am recommending City Council adopt. The following page is an executive summary of the financial impact of these recommendations. ! 1 ~------------------------~ I I I I I I I I I I I I I I I I I PBA Impasse Resolution 1 ~------------------------~ I I I I I I I I I I I I I I I I I I I Financial Impact of' City Recommendations PBfl Contract and Pension Opt Out of' Chapter 185 flnnual Savings Multiplier 2.75% $ 339,139 .00 Max Benefit 75 .00% $ 277,559.00 Base pay only $ 315,515.00 Eliminate 20 and out with hard freeze $ 294,193 .00 Age 59/ with 10 yrs and hard freeze $ 263,849.00 Total Recurring Pension Savings $ 1,490,255.00 Other Contract Savings Eliminate VEBA $ 205,794.00 Eliminate Comp Time pmts $ 145,000.00 Freeze Longevity $ 27,879.00 Eliminate Comp Time accruals for assignment pays $ 43,245.00 5% Pay Reduction $ 446,235.40 Total Other Contract Savings $ 868,153.40 Total PBA Co ntract Savings $ 2,358,408.40 Note : Totals per actuary analysis 9/21/11; when changes are aggregated together, the net savings will be slightly less than the sum above Cumulative Savings Over lhree Year Period $ 1,017,417.00 $ 832,677 .00 $ 946,545 .00 $ 882,579.00 $ 791,547.00 $ 4,470,765.00 $ 617,382.00 $ 435,000.00 $ 83,637.00 $ 129,735.00 $ 1,338, 706.20 $ 2,604,460.20 $ 7,075,225.20 I I I I I I I I I I I I I I I I I I I BEFORE THE STATE OF FLORIDA PUBLI C EMPLOYEES RELATIONS COMMISSION In the Matter of: THE CITY OF PALM BEACH GARDENS, FLORIDA, City/Public Employer, v. PALM BEACH COUNTY, POLICE BENEVOLENT ASSOCIATION, PBNUnion. ------------------------~' Special Magistrate Case No. 2012-017 SPECIAL MAGISTRATE'S RECOMMENDED DECISION Special Magistrate: Martin A. Soli, Esq. For the City: ForPBA: 3530 Mystic Pointe Drive, Suite 401 Miami, Florida 33180 Robert L. Norton, Esq. Allen, Norton & Blue, P.A. 121 Majorca Avenue, Suite 300 Coral Gables, FL 33134 Gary Lippman, Esq. General Counsel Palm Beach County Police Benevolent Association, Inc. 2100 North Florida Mango Road West Palm Beach, FL 33409 Witnesses called by the City: Mr. Allan Owens Witnesses called by PBA: Officer Robert Wilson, Officer Gregory Allen, Officer Gregory Mull, Sergeant Robert Odell I I I I I I I I I I I I I I I I I I I .JURISDI CTION This Special Magistrate proceeding was convened under the authority of Florida's Public Employees Relations Act ("PERA," Section 447 , Part ll, Chapter 447.201 -447.609, Florida Statutes) and the administrative rules of practice of the State of Florida Public Employees Relation Commission ("PERC"). As stated in PERA, its purpose is for the special magistrate to help resolve the bargaining impasse existing between the parties by issuing a recommended decision on all unresolved contract issues. PERA's language (Section 447.405, Florida Statutes) lists, the following "factors," among others, to be given weight by the special magistrate in arriving at a recommended decision: (1) Comparison of the annual income of employment of the pub lic employees in question with the annual income of employment maintained for the same or similar work of employees exh ibiting like or similar skills under the same or similar working conditions in the local operating area involved. (2) Comparison of the annual income of employment of the public employees in question with the annual income of employment of public employees in similar public employee governmental bodies of comparable size within the state. (3) The interest and welfare of the public. (4) Comparison of peculiarities of employment in regard to other trades or professions, specifically with respect to: (a) Ha zards of employment. (b) Physical qualifications. (c) Educational qualifications. (d) Intellectual qualifications. (e) Job training and skills. (f) Re t irement plans. (g) Sick le ave. (h) Job security. (5) Availability of funds. 2 I I I I I I I I I I I I I I I I I I I BACKGROUND Palm Beach County Police Benevolent Association, Inc. ("PBA"), represents the City of Palm Beach Gardens' ("City") police bargaining unit of approximately 150 City employees consisting of sworn police officers and police sergeants, and non-sworn police communications operators and communications supervisors. The parties are at impasse over the terms and conditions of a new/successor collective bargaining agreement (for brevity, "New CBA") to replace their prior (2010-2011) Agreement which became effective on October 1, 2010, and expired on September 30, 2011 (for brevity, the"Expired CBA"). The parties' bargaining history which led to this impasse proceeding is summarized as follows: 1. October 19. 2011 -Following unsuccessful bargaining for a New CBA, the City declared the negotiations at an impasse. 2. November 2011 -In the course of agreed renewed bargaining, both PBA and the City's bargaining teams jointly agreed upon comprehensive language changes to both nine contract articles (i.e., Article 3/0fficer in Charge and Field Training Officer; Article 18/Insurance Benefits; Article 21/Longevity Benefits; Article 3D/Promotions; Article 32/Salaries; Article 36/Substance Use and Testing; Article 42/Work Week and Overtime; Article 43/Supplemental Pay and Hazardous Duty Benefit; and Article 44/ Care and Maintenance of Canines), and a retirement/pension letter of agreement which, if both were ratified by the bargaining unit, would provide the City with wage, work rules, benefits and retirement/pension plan reductions, concessions and/or cost savmgs. 3. J anuacy 13. 2012 -The parties' bargaining teams reduced to writing what they called the tentative/subject to ratification "Package," which included the following two documents: 3 I I I I I I I I I I I I I I I I I I I 3. • • A comprehensive 76 page "final draft" of the bargaining teams' agreed tentative/subject to ratification three year collective bargaining agreement effective October 1, 2011 , through September 30, 2014 (for brevity, the "Proposed January 13-CBA"), which stated and highlighted both the prior language and the new language changes to the above referenced nine contract articles.' And, A separate three page tentative/subject to ratification retirement letter of agreement covering only sworn law enforcement bargaining unit members, entitled PBA Agreement with City of Palm Beach Gardens Regarding Bargaining Unit Members' Retirement. January 25, 2012-Both the Proposed January 13-CBA and Proposed Retirement Agreement failed bargaining unit ratification. And, 4. February 15. 2012-The parties ' bargaining teams reconvene, culminating with the City again declaring the negotiations at impasse, and requesting the appointment of a special magistrate. The undersigned was agreed upon by the parties to serve as special magistrate in this matter and, thereafter, appointed to his position on March 8, 2012, by Mr. Mike Hogan, Chair, State of Florida Public Employees Relations Commission. A transcribed evidentiary hearing was held at the City's corporate offices on April 23, 2012, during which the parties were accorded the full opportunity to call, examine and cross-examine witnesses and submit all evidence pertinent and material to their respective positions. Post hearing closing briefs were filed on May 19, 2012. The parties also agreed to extend the time for the undersigned to file his recommended decision. 1 The agreed language changes for each of the nine contract articles is stated in PBA Exhibit #3.C, entitled "City January 13, 2012 Draft." 4 I I I I I I I I I I I I I I I I I I I I SUMMARY OF PBA'S PROPOSALS AND ARGUMENTS PBA, to resolve the current impasse, proposes a one-year (October 1, 2011-September 30, 2012) New CBA, and that for the remainder of the current fiscal year (i.e., to September 30, 2012), the parties agree to status quo/no changes from the terms, conditions and language of their now Expired CBA and all bargaining unit retirement/pensions benefits. PBA stresses, among other things, that its status quo proposal will result in "a continuation of the current 'freezes' to all of its bargaining unit members' contractual pay and benefits incurring costs to the City." PBA also proposes the undersigned recommend the parties agree to the following language changes to Articles 15 and 45: ( 1) Regarding Article 15/ Grievance and Arbitration Procedure, PBA proposes to amend its Sections 6 and 7 to state: Section 6: The PBA and the City shall each bear its own expense in the arbitration proceedings, except that the Party against whom relief has been granted shall pay all of the fee and other expenses of the arbitrator. Section 7: A probationary employee may not grieve any matter concerning assignment, or discipline up to and including discharge for performance unrelated to a complaint or investigation. PBA further describes and explains its Article 15 proposal as: "extend[ing] to probationary bargaining unit members access to the collectively bargained Article 15, Grievance and Arbitration Procedure only for terminations that otherwise would be 'for cause' (and a modification in effect shifting to the PBA all of an arbitrator's fees and costs in the event that a Grievance is determined without merit)." 5 I I I I I I I I I I I I I I I I I I I (2) Regarding Article 45/ Police Officers' Bill of Rights and Administrative Investigations, PBA proposes to (i) change its title to "Rights of Bargaining Unit Members Under Investigation" (ii) delete all of its contract language, and (iii) replace the same with the applicable language as now stated in Sections 112.532, 112.533 and 112.534, Florida Statutes (a/k/a, collectively, as the Police Officers' Bill of Rights). PBA further deems and describes its Article 45 proposal as "only a name change ... ; albeit, it has removed statutory references and substituted the 'rights ' expressly [stated in Sections 112.532, 112.533 and 112.534, Florida Statutes]." SUMMARY OF THE CITY'S PROPOSALS AND ARGUMENTS The City requests that to resolve the instant impasse, the undersigned recommend the parties agree to its following four proposals. A summary and the City's grounds and reasons for each of it proposals follow. City Proposal 1 The City proposes to delete all of Article 45/Police Officers' Bill of Rights and Administrative Investigations language and its title and substitute the following: ARTICLE45 ADMINISTRATIVE INVESTIGATIONS Section 1: In any investigation pertaining to bargaining unit conduct, any member of the bargaining unit, including the officer(s) that are the subject of the investigation, shall answer any and all questions propounded to them provided. 1) 2) When the interview could involve criminal culpability, the officer will also be advised of his/her rights pursuant to Garrity; Questions will focus on the incident(s) being investigated. Section 2: Failure to answer a question or answering a material question untruthfully will result in termination. In support of its Proposal 1, the City argues and contends that: [Article 45's current] reference to [Sections 112.532, 112.533 and 6 I I I I I I I I I I I I I I I I I I I 112.534, Florida Statutes in the Expired CBA] ... is not only unnecessary, it can be used to place an Arbitrator in the difficult position of deciding whether a statute has been violated . . . Further, the City's proposal would apply to the [Bargaining Unit's non-sworn] Communications Operators as well as sworn personnel, which is something the PBA has requested. Finally, the PBA 's [Article 45] proposal ... is not only cumbersome and unnecessary, it would make the Law Enforcement Officers ' Bill of Rights applicable to non-sworn personnel. City Proposal 2 The City proposes the following retirement language be added to the New CBA. RETIREMENT Retirement benefits and employee contributions for employees covered by this Agreement shall be as provided in the City of Palm Beach Gardens Police Officers' Retirement Plan (the "Plan"), except as provided below. All changes to the existing Retirement System shall take effect September 30, 2011 or upon implementation of this Agreement , if earlier (the "effective date"). 1. The benefit multiplier shall be 2.75% for all service after the effective date. Employees who are employed on the effective date shall retain their accrued benefits based on service prior to the effective date. 2. The maximum benefit shall be 75% of average final compensation; prov ided, any employee who has accrued a benefit percentage in excess of 75% on the effective date shall retain that benefit percentage, but shall not accrue any additional benefit percentage after the effective date. 3. There shall be no cost of living adjustment applied to benefits earned based on service after the effective date. 4. Compensation for pension purposes shall be base pay, excluding all other compensation; provided, in no event shall compensation for pension purposes be less than an employee's compensation on the day before the effective date, determined in accordance with the Plan provisions in effect on that date. 5. The normal retirement date for all employees with less than 10 years of creditable service under the Plan on the effective date shall be age 59 with 1 0 or more years of creditable service. Employees with 1 0 or more years of creditable service on the effective date shall retain the current normal retirement date of age 52 with 1 0 or more years of creditable service or 20 years of creditable service regardless of age. 6. The City shall, at its discretion, discontinue participation in Chapter 185, Florida Statutes, following the effective date. At the time the 7 I I I I I I I I I I I I I I I I I I I City discontinues participation in Chapter 185 the employee pension contribution shall decrease to 8% of compensation. In support of its Proposal 2, the City emphasizes the above retirement language provides needed and ongoing bargaining unit cost reductions, and further: ... the evidence to support [bargaining unit] pension [/retirement] reform is overwhelming. In FY 2012 benefits costs for the PBA [bargaining unit] are 61 % of total payroll, most of which is the [City's] retirement contribution. Further, the City's contribution to the police pension has increased 471 % since 2002, going from $779,770 to $4,450,253. These are hard dollars, not projections. Worse yet, the total police pension debt increased from $4.3 million in 2000 to $29.4 million in 2010. That is an unfunded liability of $29.4 million which is $9.4 million more than the City's total reserves of $20 million. None of these numbers were contested in any way by the Union. Not only are the police pension costs unsustainable, the money spent to fund that pension is patently unfair when compared to the money spent for on the general employees ' pension. From 2008 to 2013, $22,561,945 was the City's contribution to the police pension for its 104 members, while the total for the 186 FRS employees was $6,293,657. There is something very wrong when 104 employees get $22 million in contributions for their pension, while 186 employees get only $6 million. The amount of pension contributed per employee over the 6-year period from 2008 -2013 shows the staggering inequity: 104 Police-$211,538 per employee 186 FRS -$33,837 per employee *** City Proposal 3 The City proposes to delete the entire language of the Expired Agreement's Article 32/Salaries and substitute the identical Article 32 language as was agreed by both the City's and PBA' s bargaining teams inN ovember 2011 , with one exception; that Section 1 of the "new" Article 8 ------------------------------------------------------ I I I I I I I I I I I I I I .I I I I I 32 would further be amended in its entirety to state: "There shall be a five (5 %) reduction in the base salary of all bargaining unit members effective upon ratification or imposition." 2 2 Thus, Article 32, as now proposed by the City, would state in its entirety as follows: Section 1: There shall be a five (5%) reduction in the base salary of all bargaining unit members effective upon ratificat ion or imposition. no salary increases for FY 2011-2012 . Section 2 : The m inimum salary for Police Officer effective October 1, 2011 is $46,149. The minimum salary for Communications Operator effective October 1, 2011 is $42,185. Section 3: Any Bargaining Unit member's work schedule that requires them to work the majority of their regular shift after midnight for the majority of the pay period shall receive a two and one -ha lf percent (2.5%) assignment pay calculated on base salary. Such assignment pay shall not be inc luded in the employees' base salary, but shall be paid as a separate line item each pay period. Section 4: The City will make distributions to bargaining unit members hired before October 1, 2011 as provided in subsections (a) -(f) below, in the form of one-time lump sum payments that shall not be added to base salary, contingent upon the Florida Divis ion of Retirement's approval of the separate "PBA Agreement with City of Palm Beach Gardens Regarding Bargaining Unit Members Retirement" and City of Palm Beach Gardens Ordinance implementing the separate Agreement. The one-t ime lump sum payments shall be made within 60 days after the C ity's required contribution to the Retirement Plan is reduced in accordance with the separate agreement on retirement. The total amount of the one -time lump sum payments and the VEBA contribution set forth in Article 18, Section 3 shall not exceed $505 ,662. a. 6 Sergeants with salaries of $100,000 or more will rece ive a one -time lump sum payment in the gross amount of $1 ,675 from which appropriate payroll deductions and withholdings will be made. b. 12 Sergeants with salaries less than $100 ,000 will receive a one-time lump sum payment in the gross amount of $3,275 from which appropriate payroll deductions and withholdings will be made. c. 24 Officers with salaries of $82 ,000 or more will receive a one -time lump sum payment in the gross amount of $1 ,675 from wh ich appropriate payroll deductions and with holdings will be made. d. 59 Officers with salaries less than $82 ,000 will receive a one-time lump sum payment in the gross amount of $3,275 from which appropriate payroll deductions and with holdings will be made. e. 2 Emergency Communications Operators with salaries of $65 ,000 or more will receive a one-time lump sum payment of $500 from which appropriate payroll deductions and withholdings will be made. f . 21 Emergency Communications Operators with salaries of less than $65,000 will receive a one -t ime lump sum 9 I I I I I I I I I I I I I I I I I I I The undersign's recommendation of its Article 32 proposal, argues the City: [l]s absolutely necessary as the facts demonstrate. In its opening, the City asserted as part of the justification for a 5% salary reduction, that the City anticipated resolving the contract in a timely manner, but it has now been expired for over seven (7) months and the City is losing $150,000 a month in anticipated contract concessions. [City witness] Allan Owens was asked on cross-examination about the $150,000 per month loss and he responded: "Yes, about 100,000 a month is due to the failure of the pension reforms that we had planned. And the other 50,000 would be due to, the main items would be due to the contributions to the VEBA that we are continuing to fund, and the continued pay outs for comp. time that we are under status quo paying out. The other smaller amounts have to do with longevity and assignment pays although not nearly as much as the other items." *** ... Once the City has recouped what it anticipated receiving in concessions, the parties could agree to restore the 5%. Recommending the 5% salary cut would not be at all unreasonable considering that the PBA has in the last 9 years received at least 15% greater increases than any other group in the City. City Proposal 4 The City similarly proposes the identical language of the following eight contract articles (i.e., Article 3/0fficer in Charge and Field Training Officer; Article 18/lnsurance Benefits; Article 21/Longevity Benefits; Article 30/Promotions; Article 36/Substance Use and Testing; Article 42/Work Week and Overtime; Article 43/Supplemental Pay and Hazardous Duty Benefit; and Article 44/ Care and Maintenance of Canines), as was agreed by both the City's and PBA' s bargaining teams in November 2011. payment of $1 ,000 from which appropriate payroll deductions and withholdings will be made. Section 5: There shall be reopeners on this Article for FY 2012-2013 and FY 2013-2014. 10 I I I I I I I I I I I I I I I I I I II In support of its Proposal4 (and all of its economic/cost reduction proposals), the City asserts and emphasizes: • That most of the Articles over which the City declared impasse in this matter had been tentatively agreed to by PBA' s negotiating team in November 2011. • That the actions of PBA's leadership in supporting the tentative agreement reached in November 2011, which had numerous economic concessions, overwhelmingly demonstrates that the Union believes the City needs to receive significant economic concessions. • The City needs some relief from the crushing obligations it faces with respect to its public safety salaries and benefits. For example, from FY 2008 to FY 2012, the City has eliminated 78 positions at a savings of $5,460,000 which barely covers the $5,265,730 increase in police and fire salaries and benefits for the same time period. Further, the PBA' s status quo proposal, if projected out over 5 years, would effectively bankrupt the City. • The City's 5 year forecast clearly shows expenditures exceeding revenues for the next 5 years and that the [PBA's proposed] status quo would result in a FY 2013 budget deficit of $1,765,972 for the police and require a 4% tax increase or the elimination of 14 police officers. • That PBA's Exhibit 7 [i.e., the City's FY 201112012-0perating and Capital Improvement Budget] even more dramatically highlights the City's financial difficulties. On page 24, the document states that since 2007 the City's General Fund revenues have declined by almost $9 million. The document goes on to state: "To date the City has dealt with this revenue loss with minor property tax increases and significant expenditure cuts. These cuts have come primarily 11 I I I I I I I I I I I I I I I I I I I from the loss of almost 15% of full-time staff, approximately $3 million in operating cost cuts, and elimination of pay increases for general employees and bargaining unit employees, when contracts allow." Thereafter, PBA Exhibit 7 sets forth in bullet points 39 separate actions the City has taken to "meet the reductions in revenues." Among those bullet points is the elimination of78 positions, elimination of over 25,000 hours of part-time staffing, and elimination of $1.4 million in the Capital Improvement Plan. Significantly, the analysis concludes with the following statement, "Despite all the above actions, the City would be faced with a deficit in the proposed FY 2012 budget of approximately $3.7 million dollars, without further cuts or increased revenues." And finally, argues and contends the City: • The conclusion is inescapable, there are no available funds to sustain the status quo, and accordingly, the special magistrate should recommend the reductions in benefits as proposed by the City. SUMMARY OF PBA'S OPPOSITION TO THE CITY'S PROPOSALS AND EVIDENCE PBA, in summary, requests the undersigned reject each of the City's proposals and supporting evidence, and, in tum, as discussed above, it requests the undersigned recommend (i) its overall status quo proposal (ii) a one-year, as opposed to a three-year CBA, and (iii) its Article 15 and 45 proposals. In opposition to the City's proposals and evidence, PBA further argues and contents, in relevant part and in summary as follows: (Regarding PBA 's opposition to the City's proposed changes to Article 45) • That if the City's proposed Article 45 language is adopted, it would strip all of the existing rights of any Contractual meaning or application to everybody in the bargaining unit, including the police officers and sergeants; and no due 12 II II I I I I I I I I I I I I I I I I I process rights would be extended to the Bargaining Unit's Communications Officers or their Supervisors. (Regarding PERA 's statutory "Five Factors " special magistrates are required to consider; and PBA 's opposition to (i) the City 's proposed (Article 32) 5% base salary reduction (ii) the City's Retirement proposal; and (iii) the City 's other economic/cost saving proposals) • • • By reducing all bargaining unit members ' compensation 5%, without reducing their hours of work and/or performance expectations, the City is seeking to uncouple job performance from its employees ' compensation; a significant, if not calamitous change to the Agreements that have long governed bargaining unit members ' employment. Apart from pages 6 and 7 in City Exhibit 1, the City relieved itself of any effort whatsoever to make comparisons or to produce some evidence to be considered by the special magistrate as required by law (i.e ., PERA 's five factors to be given weight by the special magistrate in arriving at a recommended decision). The purported "Preliminary 2012 Local Market Data" produced by the City with regard to police officers and police sergeants is a thinly veiled manipulation of numbers which, notwithstanding the manipulation, unequivocally shows the City police sergeants at the very bottom (i .e., last) among those within the Evergreen Solutions study the City commissioned and produced. In the absence of any step pay plan, and with compensation uncoupled from performance notwithstanding the "merit pay" nomenclature (and with "Longevity Benefits" frozen), the City study's use of "midpoint" and "maximum" wages for comparing police officers and police sergeants is misleading since there is no way for bargaining unit members to move up in pay or otherwise to approximate such arbitrary figures. 13 I I I I I I I I I I I I I I I I I I I • • • The City's production of its purported "Employee Salary Increases," etc. is misleading. Purporting to show a history of "10.00%" increases, among other things, the PBA produced the uncontroverted testimony of City Sergeant and PBA Representative Robert Odell with personal knowledge that no such things occurred. The special magistrate should accord no weight to the City's evidence regarding PERA's Factor 5 availability of funds since the City's own Comprehensive Annual Financial Report for the Fiscal Year Ended September 30, 2011 ("CAFR"), declares that "[o]ver the last nine years, the City has been able to increase its unassigned fund balance," currently at "$20.9 million"; very nearly double what sound economic management advises. During six (6) of the last nine years the City steadily reduced its millage. The City's CAFR also shows the current fiscal year "Total City Millage" rate remains lower than it was in 2002, and its "Debt Service Millage" is less than half what it was in 2002! And, notwithstanding the current City millage rate at a pre-2002 rate, that the record amount of "Total Collections to Date" of property taxes is just short of double what it was in 2002! While the City of Palm Beach Gardens is not yet back in "the black," it cannot be disputed that things rapidly are getting better uniquely for the City, precisely at the moment it is poised to make things rapidly worse for its police officers, sergeants, communications operators and their supervisors. (See the Palm Beach Post's March 16,2012, article entitled "Cities forecast real estate revival," which also reports Palm Beach Garden's Mayor David Levy stating that "he believes the recession is over in Palm Beach Gardens."). 14 I I I I I I I I I I I I I I I I I I I • Comparing the earning of City police officers and sergeants to those of the City of Boca Raton and the Palm Beach Sheriffs Office (i.e., PERA' s Factor 1) the record shows: (1) that City Police Officer Robert Wilson's 9 years of City service is earning him less than a 4th year Boca Raton police officer earns; and equal to what a Palm Beach County Sheriff's Office ("PBSO") deputy earns after completing 5 years with PBSO. (2) that City Police Officer Gregory Allen's 13 years of City service is earning him what a 61h year Boca Raton police officer earns; and is equal to what a PBSO deputy earns in the deputy's 9th year. (3) that with 16 total years of law enforcement and two years as a sergeant, City Sergeant Randy Button is being paid by the City less than what a 3ro year Boca Raton police officer earns; his annual income is approximately $25,000 below the first "Step" for a Boca Raton sergeant; he currently earns approximately $20,000/year less than a brand-new PBSO sergeant; and his City earnings are less than what a Sheriffs deputy earns after only 5 years of service with PBSO. And, ( 4) that City Police Officer Gregory Mull's 6Vl years of service is earning him just under what a Boca Raton police officer earns in his/her first year of service with Boca Raton. In conclusion, PBA asserts and insists it: ... [H]as accepted, and proposed a continuation of the current "freezes" to all of its bargaining unit members' Contractual pay and benefits 15 I I I I I I I I I I I I I I I I I I I incurring costs to the City. The PBA has proposed modifications to the subject Collective Bargaining Agreement that would extend to probationary bargaining unit members access to the collectively bargained Article 15, Grievance and Arbitration Procedure only for terminations that otherwise would be "for cause" (and a modification in effect shifting to the PBA all of an arbitrator's fees and costs in the event that a Grievance is determined without merit). The PBA also has proposed, for all practical purposes, only a name change to Article 45; albeit, it has removed statutory references and substituted the "rights" expressly. It is the City that is proposing changes to the terms and conditions of a Collective Bargaining Agreement that has governed its Police Department bargaining unit employees for the last, now, nearly four (4) years. Accordingly, as aforementioned , the burden of proof to sustain the changes proposed by the City properly is upon the City. The City produced no comparables, addressed none of the "factors to be considered by the special magistrate" apart from a purported "[un]availability of funds," and introduced no current calculations of costs. *** The records produced by the PBA show that the City's police officers, sergeants, communications operators and their supervisors suffer considerably by comparison in the local operating area. By the City's failure to show in a forthright way the purported "[un]availabilty of funds," it has conceded it is willing to accept its employees' further suffering. On this record, therefore, the PBA proposals subject of these proceedings are modest and reasonable; the City's demands in response cannot be considered a fair or 'just settlement." For all of the foregoing reasons, a 'just settlement" of this dispute would provide nothing less than the following: the status quo with regard to all "salaries" and each and every collectively bargained term and condition 16 I I I I I I I I I I I . I I I I I I I . I of bargaining unit members currently in effect, only through September 30, 2012, with the exception of Articles 15 and 45; a Collective Bargaining Agreement of one (1) years' "Duration" as proposed by the PBA; the modifications to non-monetary provisions subject of the PBA's proposals with regard to Articles 15 and 45; and, direction to the Parties to convene negotiations beginning June 1, 2012, toward a successor Collective Bargaining Agreement. FINDINGS AND RECOMMENDATIONS PERA, as discussed above, requires that in arriving at a recommended decision, the Special Magistrate give weight to, among others, each of five factors. The parties are advised that while all were considered, the undersigned finds the most compelling and overriding statutory factor in resolving the City's above described cost reductions proposals was Factor #5, availability of funds. Indeed, PBA's extensive evidence and arguments in opposition to the City's cost saving proposals, while persuasive, fail to overcome the City's Factor 5/unavailability of funds testimony, documents and arguments which collectively prove its immediate needs for the work rule, pay, benefits and retirement concessions and cost reductions it now proposes. The record, likewise, supports the following portions of the City's closing brief: That most of the Articles over which the City declared impasse in this matter had been tentatively agreed to by PBA's negotiating team in November 2011. *** The actions of the Union's leadership in supporting a tentative agreement reached in November 2011, that had numerous economic concessions, overwhelmingly demonstrates that the Union believes the City needs to receive significant economic concessions. 17 I I I I I I I I I I I I I I ' I .I I I On the other hand, regarding PERA's Factor 1 (which requires, in summary, that special magistrates consider annual income comparisons of similar public employees, here police officers, in the local operating area involved), there is no question, nor does the City dispute that its police offices are receiving substantially less pay than, among others, their Boca Raton and PBSO counterparts. The undersigned, however, finds that these facts fail to overcome the City's current needs for the bargaining unit cost reductions it seeks in this proceeding. That being the case, and based upon the record in this matter, and since almost all of the City's proposals had been agreed to by PBA's negotiating team in November 2011, and for the reasons further discussed below, the undersigned special magistrate recommends the following to resolve the parties' impasse. 1. 2. That the parties agree to the above described City Proposal 4. In other words, the undersigned recommends the parties agree to the language of the following eight contract articles (i.e., Article 3/0fficer in Charge and Field Training Officer; Article IS/Insurance Benefits; Article 21/Longevity Benefits; Article 3D/Promotions; Article 36/Substance Use and Testing; Article 42/Work Week and Overtime; Article 43/Supplemental Pay and Hazardous Duty Benefit; and Article 44/Care and Maintenance of Canines), as was agreed by both the City's and PBA's bargaining teams in November 2011.3 That the parties agree to the above described City Proposal2. In other words, the undersigned recommends the parties agree to add the above quoted retirement language (on pages 7-8 above) to their New Agreement. 3 As stated in Footnote #1, the language for said eight contract articles the City proposes and which the undersigned recommends, is stated in PBA Exhibit #3.C, entitled "City January 13, 2012 Draft." 18 I I I I I I I I I I I I I I I I I II I 3. 4. 5. 6. That the parties agree to the above described City Proposal3. In other words, the undersigned recommends the parties agree to the language of Article 32/Salaries as was agreed by both the City's and PBA's bargaining teams in November 2011, with the exception that Section 1 of Article 32 will be deleted in its entirety and replaced with the following language: "There shall be a five (5%) reduction in the base salary of all bargaining unit members effective upon ratification or imposition." 4 As noted above, in its post-hearing brief, the City states and advises that, "Once the City has recouped what it anticipated receiving in concessions, the parties could agree to restore the 5%." That being the case, the undersigned further recommends the parties agree to add appropriate language to their New CBA stating the same, i.e., that once the City has recouped what it anticipated receiving in concessions, the 5% reduction in the base salary of all bargaining unit members stated in Article 32, Section 1 will end. In light of the above recommendations, the undersigned, in tum, recommends the parties mutually reject PBA's status quo proposal. While PBA and the City (as its Proposal1) have both proposed changes to Article 45/Police Officers' Bill of Rights and Administrative Investigations, the undersigned finds no compelling evidence in the record to recommend the parties agree to either PBA' s or the City's proposals. The undersigned, accordingly, recommends that Article 45's title and language remain unchanged. Since the record shows no compelling City opposition to PBA's proposal of a one-year (October 1, 2011 to September 30, 2012) New CBA, the undersigned recommends the parties agree to the same. Thus, the undersigned recommends the parties agree that Article 13/Duration for their New CBA shall state in its entirety as follows: 4 The precise Article 32 language the undersigned recommends is reflected in Footnote #2 above. However, if a one-year New CBA is agreed to by the parties, the undersigned further recommends the partes agree to de lete as moot the reopener language stated in Section 5 of Article 32. 19 I I I I I I I I I I I I I I I I I I I 7. 8. ARTICLE 13 DURATION Section 1 : This agreement shall be effective October 1, 2011 subject to ratification by the PBA and approval and appropriation of the necessary funds by the City Council of Palm Beach Gardens, Florida. This agreement shall continue in full force and effect from October 1, 2011 to September 30, 2012. Section 2: The parties agree to reopen negotiations for a successor contract by June 11, 2012. Should a successor agreement not be ratified by the PBA and approved by the City Council for the year beginning October 1, 2012, this agreement shall remain in full force and effect until replaced by a new agreement. The undersigned also recommends: a. The parties agree to amend all applicable contract articles/letters of agreement to reflect the New CBA's duration as October 1, 2011 to September 30, 2012; and, b. The parties agree to delete as moot all contract articles/letters of agreement which provide reopeners in FY 2012-2013, or FY 2013-2014 (such as, by example, but not limited to, the last sentence of Section 3 of Article 18/Insurance, Section 5 of Article 21/Longevity Benefits, and Section 5 of Article 32/Salaries). PBA proposes to amend Sections 6 and 7 of Article 15/Grievance and Arbitration Procedure. Regarding Section 7 of Article 15, the undersigned finds no compelling evidence in the record to recommend the parties agree to amend its language. The undersigned, accordingly, recommends that Section 7 of Article 15 remain unchanged. Regarding Article 15's Section 6, PBA also proposes to amend its existing language to require the "loser" of an arbitrated grievance pays 100% of the arbitrator's fee and expenses, as opposed to the parties each paying half of the same, as Section 6 of Article 15 in the Expired CBA now requires. In the undersign's experience such "loser pays" contract 20 I I I I I I I I I I I I I I I I I I I language negotiated by Florida public employers and their employee unions has in many, but not all cases directly caused or encouraged the parties to settle grievances prior to arbitration in order to avoid paying all of the arbitrator's costly fee and expenses. That being the case, the undersigned also recommends the parties agree to amend the New CBA's Section 6 of Article 15 in its entirety as follows: Section 6: The PBA and the City shall each bear its own expense in the arbitration proceedings, except that 1 00% of the arbitrator's fee and expenses shall be paid by the losing party as determined by the arbitrator. Signed and e-mailed to the parties' representatives this 51h day of June 2012. ~JfliJl ~@lolL Special Magistrate 3530 Mystic Pointe Drive, Suite 401 Miami, Florida 33180 -305/932-0001, Fax 305/932-9933, Cell305/333-2036 LANMAR@ ATLANTICBB.NET cc: Mr. Jeffery B. McAdams, Esq., Counsel for PBA Mr. Robert L. Norton, Esq., Counsel for the City PERC, Tallahassee, Florida 21 I I I I I I I I I I I I I I I I I I I TAB LE OF EXHIBITS The following is a summary list of Exhibits and corresponding articles/issues referenced in the City of Palm Beach Gardens ' Partial Rejection of Special Magistrate 's Recommended Decision. Exhibit Article Title 1 3 Officer in Charge and Field Training Officers 2 21 Longevity Benefits 3 30 Promotions 4 36 Substance U se and Testing 5 42 Workweek and Overtime 6 43 Supplemental Pay and Hazardous D uty Benefit 7 44 Care and Maintenance of Canines 8 Retirement Plan 9 15 Grievance and Arbitration Procedure 10 18 Insurance Benefits 11 32 Salaries 12 45 P olice Officers' Bill of Rights and Administrative Investigations 13 13 D uration I I I I I I I I I I I I I I I I I I I STATE OF FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION CITY OF PALM BEACH GARDENS, City, and PALM BEACH COUNTY, PBA Union. --------------------------~' Case No. SM-2012-017 CITY OF PALM BEACH GARDENS' PARTIAL REJECTION OF SPECIAL MAGISTRATE'S RECOMMENDED DECISION Robert L. Norton, Esq. ALLEN, NORTON & BLUE, P.A. 121 Majorca Avenue, Suite 300 Coral Gables, FL 33134 Tel: (305) 445-7801 Fax: (305) 442-1578 Counsel for the City of Palm Beach Gardens I I I I I I I I I I I I I I I I I I I STATE OF FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION CITY OF PALM BEACH GARDENS, City, Case No. SM-2012-017 and PALM BEACH COUNTY, PBA Union. -------------------------------' CITY OF PALM BEACH GARDENS' PARTIAL REJECTION OF SPECIAL MAGISTRATE'S RECOMMENDED DECISION COMES NOW, the City of Palm Beach Gardens ("the City") by and through undersigned counsel and sets forth those Recommendations of the Special Magistrate ("SMR") which it rejects in whole or in part. All other Recommendations not rejected herein are accepted. The parties are at impasse over 10 articles and the Retirement Plan. The City specifically accepts the Magistrate's Recommendations as to Article 3 - Officer in Charge (Exh. 1); Article 21 -Longevity Benefits (Exh. 2); Article 30 - Promotions (Exh. 3); Article 36 -Substance Use and Testing (Exh. 4); Article 42 - Workweek and Overtime (Exh. 5); Article 43-Supplemental Pay and Hazardous Duty Benefit (Exh. 6); Article 44 -Care and Maintenance of Canines (Exh. 7), and the Retirement Plan as set forth on pages 7 and 8 of the Magistrate's Decision. (Exh. 8). The City rejects Magistrate's Recommendation that Article 15-Grievance and Arbitration Procedure, Section 6, be modified to include language that the losing party in an arbitration pay 100% of the arbitrator's fees and expenses. The City proposes that the status quo language which provides the parties split the arbitrator's fees and expenses is preferable. The City is of the opinion that an arbitrator could be hesitant to rule against a party knowing the party would not only suffer the loss, but be required to 1 343440 I I I I I I I I I I I I I I I I I I I pay the arbitrator's fees and expenses. This scenario consciously or subconsciously could influence the arbitrator to "split the baby" or rule partially for each party. For example, in a termination case the arbitrator could order the employee reinstated , but treat the entire time he or she was out of work without pay as a suspension. Further, issues could also arise as to which party is the "loser," as in the example above. The City recommends status quo on Article 15 (Exh . 9). With regard to Article 18 -Insurance, the City rejects the Magistrate's Recommendation that Article 18 be modified to reflect the language tentatively agreed to in January 2012 and instead proposes the language tentatively agreed to on November 17 , 2011 except deleting the handwritten Section 3 (Exh. 10). Thus , the City proposes to end its contribution to the Voluntary Employee Beneficiary Association ("VEBA") because of its cost to the City , because the IAFF has agreed to stop City contributions to its VEBA, and because it is questionable as to whether the language, as tentatively agreed to in January 201 2, could be appropriately imposed on the parties. The City accepts the Magistrate's Recommendation as to Article 32 -Salaries as set forth in paragraph 3 on page 19 of his Decision, but rejects footnote 4 on page 19 of his Decision , which cites to footnote 2, because the language quoted in footnote 2 is inconsistent with the Magistrate's Recommendation in paragraph 3, page 19. The City proposes the language tentatively agreed to on November 17, 2011 with Section 1 modified to reflect a 5% pay reduction until the City determines that it has recouped what it anticipated receiving in concessions.1 (Exh . 11 ). Although both parties proposed changes to Article 45 -Police Officers' Bill of Rights, and Administrative Investigations, the Magistrate Recommended status quo. 343440 This language was recommended by the Magistrate (SMR, p. 19). 2 II I I I I I I I I I I I I I I I I I I The City rejects this Recommendation and proposes the article be modified to delete any reference to the "Police Officer's Bill of Rights" because that language references a Florida Statute which mandates that the City comply with its provisions and has specific judicial remedies for failure to comply. Reference to this statute in the Collective Bargaining Agreement can, and has, resulted in the Union claiming violations of this statute to an arbitrator. Arbitrators are not judges and should not have this burden. Further, this article as proposed by the City would apply to all bargaining unit employees and not just sworn personnel, as it does now. (Exh. 12). The Magistrate Recommended, with respect to Article 13 -Duration, that the contract be for one year, which the Union proposed and the City agrees, however the language proposed by the Magistrate would require the parties to reopen negotiations for a successor contract "by June 11, 2012" which is, of course now impossible as this date has passed. The City recommends that Section 2 require the parties to reopen negotiations no later than August 15, 2012. (Exh. 13). 343440 Respectfully Submitted, Is/ Robert L. Norton Robert L. Norton Florida Bar No. 0128846 rnorton@anblaw.com ALLEN, NORTON & BLUE, P.A. 121 Majorca Avenue, Suite 300 Coral Gables, Florida 33134-4508 Tel: (305) 445-7801 Fax: (305)442-1578 3 I I I I I I I I I I I I I I I I I I I CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. mail, postage prepaid, this 25th day of June, 2012, to: 343440 Gary Lippman, Esq. Palm Beach County Police Benevolent Association 2100 N. Florida Mango Rd. West Palm Beach, FL 33409 /s/ Robert L. Norton Attorney 4 L__~---------- I I I I I I I I I I I I I I I I I I I ARTICLE 21 LONGEVITY BENEFITS Section 1: All bargaining unit members hired before October 1, 1991 , who shall have completed their required years of service, indicated below, shall be entitled to a percentage increase in salary as follows: Years of Continuous Service 4 Years 7 Years 11 Years 15 Years 20 Years Percentage Increase in Salary 2% 4% 6% 8% 10% Said percentage increases shall be added to base salary. Section 2: Longevity allowances for employees hired after September 30, 1991 , shall be as follows : Bargaining unit members shall be entitled to a percentage increase to their base wages when they have completed their required years of service as indicated below: (For example, an employee with more than 1 0 years of continuous service but less than 15 will receive 2.5% upon completion of 15 years of continuous service.) Years of Continuous Service 7 years 10 years 15 years 20 years Percentage Increase in Wages 2.5% 2.5% 2.5% 2.5% Section 3: Continuous service for purposes of this article shall be defined as employment in the City services without a break or interruption . Layoffs not exceeding one (1) year, authorized military leave, educational leave, vacation leave or lawful extension thereof, or reinstatement in accordance with this agreement, shall not affect continuity of service. Section 4: Effective midnight. September 30. 2011. longevity payments shall be frozen at their current levels for all employees and shall not be increased on any future anniversary dates. Employees hired after midnight. September 30. 2011 shall not receive any longevity benefits. 28 EXHIBIT I z__ I I I I I I I I I I I I I I I I I I I ARTICLE 30 PROMOTIONS Section 1: When a budgeted Sergeant's position exists and is declared vacant by the City, appropriate notice shall be given. However, the City is not obligated to fill a vacant Sergeant's position. Section 2: The City will announce promotional examinations at least forty-five (45) days prior to the testing date. The City will also list the areas which the examination will cover, provide the sources from which the examination is drawn and make all such reference material available. Employees will be reimbursed for the total amount incurred for the cost of the approved study materials provided they complete all portions of the promotional exam for which they qualify. If an employee does not complete all portions of the exam and the Police Chief determines he/she is excused. then he/she will be reimbursed the cost of the approved study materials. Once a promotional list is established as a result of the competitive test, that promotional list will exist for twelve (12) months from the date it is posted or until it is reduced to two or less candidates. Section 3: To be qualified for the appropriate eligibility list the candidate must possess one of the following: A. At least four (4) five (5) years continuous law enforcement service with the City prior to the date of the examination for Sergeant. B. At least three (3) years continuous Communications Operator service with the City of Palm Beach Gardens. Town of Jupiter. Town of Juno Beach or any future agency/department through the consolidated North County Regional Communications Center. prior to the date of the examination for Communications Supervisor. la'.v enforcement serviee 'Nith the City and a total of ten {1 0) years law enforcement experienee. Section 4: Names of eligibles for Police Sergeant shall be removed from the appropriate eligibility list by any of the following: A. B. Appointment through certification from such list to fill a position of Police Sergeant; Written statement by the eligible that he/she is not willing to accept appointment. C. Separation from the City service of an employee on a promotional list. Section 5: The City agrees to use only job related promotional examinations. 38 EXHIBIT 3 I I I I I I I I I I I I I I I I I I. I Section 6: The City agrees that promotions within the bargaining unit shall be made in accordance with Department policy, which shall not be changed without mutual consent of the City and the PBA, if such change affects/modifies this Agreement. Section 7: Selections for promotion will be made from the promotion register: based on the rule of fi¥e (5) composed of only those Officers who received at least a score of 80% on the written examination and received a "pass" on the assessment center component of the examination. The Chief may select any officer from the top five (5) sandidates on the register. If the soloetion is not made from the top five (6), eaah offiaer who is rated higher than the one selected will be provided a \'\'Fitten explanation as to why he.~she was not promoted. The City may delay a promotion with respect to any person who is the subject of an active criminal or internal investigation. Section 8: All promotions shall have a probationary period of six (6) months. Section 9: The Chief of Police, with the City Manager's approval, may extend the probationary period for up to six (6) months for any employee in order to further evaluate performance, or If mandatory educational requirements have not been met within the probationary period . Notification of extension of probation shall be provided to the employee in writing, with the reason for extension attached thereto. Section 10: The Police Chief may, at his/her discretion, demote any sergeant during the probationary period of the promotion to sergeant, and said demotion shall not be subject to the grievance procedure contained in this agreement. To attain regular status, the Chief of Police must notify the City Manager in writing that the Sergeant's performance is satisfactory, and he/she is to continue in the position. Section 11: A member who does not successfully complete the probationary period will be returned to the rank of officer in the pay range at which he/she would be had they not been promoted . Section 12: When an Officer is promoted to Sergeant his/her salary shall be increased by ~ 5% or to the minimum pay for the position of Sergeant. whichever is greater. When a Communications Operator is promoted to Communications Supervisor his/her salary shall be increased by receive an 8% 5% insrease In pay or to the minimum pay for the position of Communications Supervisor, whichever is greater. Section 13: The parties agree to meet in an effort to create a new promotions article, which will include Communications Supervisor. Should the parties reach a written agreement, the new article will replace the current Article 30. 39 I I I I I I I I I I I I I I I I I I I ARTICLE 36 SUBSTANCE USE AND TESTING See City polioy. The parties agree to meet in an effort to modify and improve said policy. Section I. Purpose and Intent As part of its commitment to safeguard the health of t he employees , to provide a safe place for its employees to work, and to promote a drug-free working community, the City of Palm Beach Gardens has established this policy on the use or abuse of alcohol and drugs by its employees. Substance abuse, while at work or otherwise, seriously endangers the safety of employees, as well as the general public, and creates a variety of workplace problems, including increased injuries on the job, increased absenteeism, increased health care and benefit costs, decreased morale, and a decline in the quality of services provided. Practical experiences have proven that limited quantities of various narcotics, abused prescriptions drugs, or alcohol can impair reflexes and judgment. For these reasons, we have adopted a policy that all employees must report to work completely free from the presence of drugs and the effects of alcohol. This policy is implemented pursuant to the Drug-Free Workplace program under the Florida Worker's Compensation Act (Section 440.102, Florida Statutes). This law provides that an employee who is injured in the course and scope of employment and who tests positive on a drug or alcohol test or who refuses to be tested forfeits his/her eligibility for Worker's Compensation medical and indemnity benefits. This policy represents the City's current position on dealing with t he serious problem of drug and alcohol abuse in the workplace and is subject to change at the City's sole discretion. Section 2. Scope All current employees and job applicants are covered by this policy and , as a cond ition of employment, are required to abide by the terms of this policy. Because of state or federal laws and regulations , certain employees may be subject to additional requirements. Section 3. Definitions For the purpose of this Policy, the following definitions apply: (a) "Chain of custody'' refers to the methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials or substances and providing for 47 EXHIBIT L1 I I I I I I I I I I I I I I I I I I I accountability at each state in handling, testing, and storing specimens and reporting test results. (b) "Confirmation test," "confirmed test," or "confirmed drug test" means a second analytical procedure used to identify the presence of a specific drug or metabolite in a specimen, which test. must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity, and quantitative accuracy. (c) "Drug" means alcohol, including a distilled spirit, wine, a malt beverage, or an intoxicating liquor; an amphetamine; a cannabinoid; cocaine; phencyclidine (PCP); a hallucinogen; methaqualone; an opiate; a barbiturate; a benzodiazepine; a synthetic narcotic; a designer drug; or a metabolite of any of the substances listed in this paragraph. (d) "Drug rehabilitation program" means a service provider, established pursuant to s.397.311(28), which provides confidential, timely, and expert identification, assessment, and resolution of employee drug abuse. (e) "Drug test". or "test" means any chemical, biological, or physical instrumental analysis administered, by a laboratory certified by the United States Department of Health and Human Services or licensed by the Agency for Health Care Administration, for the purpose of determining the presence or absence of a drug or its metabolites. (f) "Employee" means any person who works for salary, wages, or other remuneration for an employer. (g) "Employee assistance program" means an established program capable of providing expert assessment of employee personal concerns; confidential and timely identification services with regard to employee drug abuse; referrals of employees for appropriate diagnosis, treatment, and assistance; and follow up services for employees who participate in the program or require monitoring after returning to work. If, in addition to the above activities, an employee assistance program provides diagnostic and treatment services, these services shall in all cases be provided by service providers pursuant to s. 397.311 (28). (h) "Employer" means a person or entity that employs a person and that is covered by the Workers' Compensation Law. (i) "Initial drug test" means a sensitive, rapid, and reliable procedure to identify negative and presumptive positive specimens, using an immunoassay procedure or an equivalent, or a more accurate scientifically accepted method approved by the United States Food and Drug Administration or the Agency for Health Care 48 I I I I I I II I I I I I I I I I I I I Administration as such more accurate technology becomes available in a cost- effective form. Q) "Job applicant" means a person who has applied for a position with an employer and has been offered employment conditioned upon successfully passing a drug test, and may have begun work pending the results of the drug test. For a public employer, "job applicant" means only a person who has applied for a special-risk or safety-sensitive position. (k) "Medical review officer" or "MRO" means a licensed physician, employed with or contracted with an employer, who has knowledge of substance abuse disorders, laboratory testing procedures, and chain of custody collection procedures; who verifies positive, confirmed test results; and who has the necessary medical training to interpret and evaluate an employee's positive test result in relation to the employee's medical history or any other relevant biomedical information. (I) "Prescription or nonprescription medication" means a drug or medication obtained pursuant to a prescription as defined by s.893.02 or a medication that is authorized pursuant to federal or state law for general distribution and use without a prescription in the treatment of human diseases, ailments, or injuries. (m)"Public employer" means the City of Palm Beach Gardens who employs individuals for a salary, wages, or other remuneration. (n) "Reasonable-suspicion drug testing" means drug testing based on a belief that an employee is using or has used drugs in violation of the employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Among other things, such facts and inferences may be based upon: (1) Observable phenomena while at work, such as direct observation of drug use or of the physical symptoms or manifestations of being under the influence of a drug. (2) Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance. (3) A report of drug use, provided by a reliable and credible source. (4) Evidence that an individual has tampered with a drug test during his or her employment with the current employer. (5) Information that an employee has caused, contributed to, or been involved in an accident while at work. 49 I I I I I I I I I I I I I I I I I I I (6) Evidence that an employee has used, possessed, sold , solicited, or transferred drugs while working or while on the employer's premises or while operating the employer's vehicle, machinery, or equipment. (7) Excessive or unexcused absence or tardiness . (8) Violation or neglect of safety regulations. (9) Violation of other commonly accepted or published rules of conduct. (10) Reporting for work in a condition unfit for duty. (o) "Safety-sensitive position" means, any position in which a drug impairment constitutes an immediate and direct threat to public health or safety, such as a position that requires the employee to carry a firearm, perform life-threatening procedures, work with confidential information or documents pertaining to criminal investigations, or work with controlled substances; a position subject to s. 11 0.1127; or a position in which a momentary lapse in attention could result in injury or death to another person. (p) "Special-risk position" means, any position required as a condition of employment to be certified under Chapter 633 or Chapter 943 of the Florida Statutes. (q) "Specimen" means tissue, hair, or a product of the human body capable of revealing the presence of drugs or their metabolites, as approved by the United States Food and Drug Administration or the Agency for Health Care Administration. Section 4. Polley A. 1. 2. 3. ALCOHOL USE PROHIBITIONS All employees are prohibited from distributing, dispensing, possessing, using or being impaired, intoxicated, or under the influence of alcohol while at work, on duty, or while operating a City vehicle. Off-duty abuse of alcohol which adversely affects an employee's job performance, or which can be expected to cause harm to the City's image or relationship with other employees or the public, is prohibited . For the purposes of this policy, an employee is presumed to be impaired, intoxicated, or under the Influence of alcohol if a blood test or other scientifically acceptable testing procedure shows that the employee has a threshold level of at least 0.04g-or more percent by body weight (or as may be changed by State law) of alcohol in the blood sample taken from his/her system at the time of testing. An employee who has a confirmed alcohol concentration of greater than .02 but 50 I I I I I I I I I I I II I I I I I I I 4. 5. 6 . B. 1. 2. 3. Jess than .04 will be removed from duty for the remainder of his/her wo rk shift and shall not be returned to duty for at least twentyMfour (24) hours following administration of the test. An employee who is perceived to be under the influence of alcohol will be removed immediately from the workplace and may be evaluated by medical personnel, if reasonably available. The Department Head will take further action based on medical information, work history, and other relevant factors. The determination of what action is appropriate in each case rests solely with the City. Employees arrested for an alcohol-related incident must immediately notify their supervisor if the incident occurs: a. During scheduled work hours. b. While operating a City vehicle on City or Personal Business. c. While operating a personal vehicle on City business . Failure to notify an appropriate City Official as described above may result in disciplinary action, up to and including discharge. DRUG USE PROHIBITIONS All employees are prohibited from manufacturing, distri buting, dispensing , possessing, or using illegal drugs or other unauthorized or mindMaltering intoxicating substances while on City property (including parking areas and grounds) or while otherwise performing City duties away from the City. Included with this prohibition are lawfully controlled substances which have been Ill egally or improperly obtained. Employees are also prohibited from having any such illegal or unauthorized controlled substances in their systems while at work, and from having excessive amounts of otherwise lawful controlled substances in their systems. For the purposes of this policy, an employee is presumed to be impa ired by drugs if results of a urine test or other acceptable testing procedure are positive for the presence of one or more of the illegal substances for which the City will test. The proper use of medication as prescribed by an employee's physician is not prohibited; however, the City does prohibit the misuse of prescribed medications. Prescription medications may also affect the safety of the employee, fellow employees, or members of the public. Therefore, any employee who is taking any prescription medication which might impair safety, performance, or any 51 I I I I I I I I I I I I I I I I I I I I 4. c. 1. 2 . motor functions is obligated to notify his or her supervisor before reporting to work or during the course of work if under the use of such medication. Failure to do so may result in disciplinary action . It is the employee's responsibility to determine from his/her physician whether a prescribed medication may impair job performance. If the City determines that such use does not pose a safety risk, the employee will be permitted to work. If, in the opinion of the supervisor, such use impairs the employee's ability to safely or effectively perform his or her job, the City may, at its sole discretion, temporarily reassign the employee or grant a leave of absence during the period of treatment. Improper use of "prescription medications" is prohibited and may result in disciplinary action, up to and including discharge. Prescription medication must be kept in its original container if such medication is taken during working hours or on City property . It shall be the responsibility of each employee who observes or has knowledge of another employee in a condition which impairs the employee in the performance of his/her duties, or who presents a hazard to the safety and welfare of others, or is otherwise in violation of this policy, to promptly report that fact to his/her immediate supervisor. Failure to notify an appropriate City Official as described above may result in disciplinary action, up to and including discharge. REQUIRED TESTING AND REFUSAL TO TEST The City shall conduct drug testing in the following circumstances : APPLICATION FOR EMPLOYMENT a . All job applicants once offered a position will be tested for the presence of illegal drugs as a part of the hiring process. b. Any job applicant who refuses to submit to drug testing, refuses to sign a consent form, fails to appear for testing, tampers with the test, or fails to pass the pre-employment selection drug test will be ineligible for hire. Such an individual may not reapply for employment with the City for at least one (1) year from the date of the drug test. AFTER ACCIDENT TESTING The Supervisor/Department Head, shall request an employee submit to alcohol and drug testing after a motor vehicle accident or on the job injury if: 1) the accident involved the loss of human life, or 2) the driver receives a citation under state or local law for a moving traffic violation arising from the accident, or 3) the driver was performing safety sensitive functions with respect to the 'lehiole and was determined to be at fault. As an exception. employees may not be tested for minor crashes which are determined by the department as having been caused by slight negligence. or carelessness on the part of the employee and that does 52 II I I I I I I I I I I I II I I I I I I 3. 4. not have the potential for serious injury. e.g. backing slowly into a pole. The Supervisor/Department Head should ensure that the test is conducted on the day of the accident or as soon as possible. An employee who is injured at a work site and who is required to be tested will first be taken to a medical facility for immediate treatment of injury. If the employee is not at a designated specimen collection site, the employee will be transported to one as soon as it is medically feasible to conduct drug and/or alcohol testing. If it is not medically feasible to move the injured employee, specimens will be obtained at the treatment facility and transported to an approved testing laboratory. If an alcohol test is required, the employee shall submit to such test within two (2) hours following the accident, absent exigent circumstances. If a controlled substance test is required, it must be performed as soon as possible but no later than thirty-two (32) hours of the accident. An employee who is subject to post accident testing shall remain readily available for such testing or may be deemed by the City to have refused to submit to such testing. Any employee involved in an accident must refrain from alcohol use for eight (8) hours following the accident or until completion of a post accident alcohol test, or upon release by the supervisor. An employee who leaves the scene of the accident without good cause prior to submission to drug and alcohol testing or who fails to report to the collection facility within a reasonable time frame will be considered to have refused the test. REASONABLE SUSPICION a. Employees must submit to a drug test if the Department has reasonable suspicion that they have violated any of the rules set forth in this policy. Please refer to Section 3m (n) of this policy. b. A cause for reasonable suspicion of violation of the Rules of Conduct or the provisions of this policy is not the only reason for a referral under this policy. It is contemplated that a supervisor will refer an employee for an evaluation at any time when there is reasonable cause regarding an employee's ability to safely and properly initiate or continue normal work duties because of possible adverse influences of any drug, including prescribed drugs, or illness or other impairment. ROUTINE FITNESS FOR DUTY An employee will submit to a drug test if the test is conducted as part of a routine scheduled employee fitness-for-duty medical examination that is part of the City's established policy or that is scheduled routinely for all members of an employment classification or group. 53 I I I I I I I I I I I I I I I I I I I 5. FOLLOW-UP TEST If the employee in the course of employment enters an employee assistance program for drug related problems, or an alcohol and drug rehabilitation program, the employee must submit to an alcohol and/or drug test as a follow-up to such a program and test negative before returning to duty, and on a quarterly, semi- annual, or annual basis for two (2) years thereafter. 6. RANDOM TESTING Employees will be subject to drug testing on a purely random basis. Random selection of up to 50% of bargaining unit employees every year will be made by a contracted third party utilizing a Department of Transportation approved random selection computer program. Employees selected for random testing will be tested on the day the employee selected is on duty. If off duty, the employee will be tested on the employee's next shift worked.· or the next shift when the testing facility is open. If the employee is not tested on the next shift. the employee will not be tested. No more than 10% of those selected for random drug testing will be tested for alcohol. 9.7. REFUSAL TO TEST Refusal to submit to testing under this policy will result in forfeiture of eligibility for all medical and indemnity benefits under the Workers' Compensation Act. Employees will be subject to discipline, up to and including discharge for refusing to submit to testing. Section 5. Prior to Testing A. The City will test for the following drugs or controlled substances as defined in section 893.03, Florida Statutes, as amended from time to time, to include but not limited to: 1. Alcohol 2. Amphetamines (Desoxyn, Dexedrine) 3. Cannabinoids (marijuana, hashish, hash, hash oil) 4. Cocaine (crack) 5. Methaqualone 6. Opiates (opium, paregoric, .parepectolin) 7. Barbiturates (phenobarbital, tulnal, amytal) 8. Benaodiazepines (atlvan, azene, clonopin, dalmane, xanax, valium etc.) 9. Methadone (dolophine, methadose) 10. Propoxyphene (darvocet, darvon, dolene) 11 . Phencyclidine (pep) 54 I I I I I I I I I I I I I I . I I I I I 12. Lysergic acid diethylamide (lsd) 13. Heroin 14. Steroids without a lawful prescription by a Florida physician B. Job applicants required to submit to drug testing and employees required to submit to drug testing and alcohol testing must sign a consent agreement prior to testing. C. Because of the potential adverse consequences of positive test results on employees, the City will employ a very accurate testing program. All samples will be analyzed by a highly qualified independent laboratory which has been selected by the City and approved by the Florida Department of Health and Rehabilitative Services. D. Applicants for employment and employees will be given an opportunity prior to and after testing to provide any information they consider relevant to the test, including listing all drugs they have taken recently, including prescribed drugs, and to explain the circumstances of the use of those drugs. Applicants and employees will also be provided with a notice of the most common medications by brand name, as well as the chemical name, which may alter or affect a drug test. E. An employee who is injured at a worksite and is required to be tested will be taken to a medical facility for immediate treatment of injury. If the injured employee is not at a designated collection site, the employee will be transported to one as soon as it is medically feasible and specimens will be obtained . If it is not medically feasible to move the injured employee, specimens will be obtained at the treatment facility and transported to an approved testing laboratory. F . No specimens will be taken prior to the administration of emergency medical care. Once this condition has been satisfied , an injured employee must release to the employer the results of any tests conducted for the purposes of showing the presence of alcohol or drugs in his/her system. G. Urine tests shall be used for the initial and confirmation testing for all drugs. Blood or breath (for CDL covered positions) shall be used as the initial and confirmation test for alcohol. The "enzyme -immunoassay" (EMIT) and IIgas chromatography mass spectrophometry" (DC-MS) test methods shall be used in a laboratory used by the City. The City shall pay for the cost of all tests and medical examinations carried out under this procedure. The City shall maintain confidentiality of test results to the extent possible under law. 55 I I I I I I I I I I I I I I I I I I I H. The City will pay the cost of initial and confirmation drug test, which it requires of employees and job applicants. An employee or job applicant will pay the cost of any additional drug test not required by the City. Section 6. Coordination of Testing Procedure A. The City of Palm Beach Garden's Human Resources Department will coordinate all testing requests. Questions regarding this policy or request for testing should be directed to the Human Resources Administrator or the City Manager's Office. B. Drug testing shall be conducted in accordance with the following procedure: 1. Collection, transportation, and storage of samples shall be conducted with due regard to the privacy of the individual providing the sample and in a manner reasonably calculated to prevent substitution or contamination of the sample. The City shall ensure through its laboratory that the chain-of-custody procedures as established by the Department of Health and Rehabilitative Services are followed. 2. Each specimen container shall be labeled. 3. Employees and applicants shall be given a form on which they may provide any information relevant to the test, including identification of current or recently used prescription or non-prescription medications. 4. Tests shall be conducted by a licensed laboratory. 5. Specimens may be taken or collected by a physician, a physician assistant, a licensed practical nurse, or certified paramedic who is present, or a qualified person employed by a licensed laboratory. 6. Specimens yielding a positive confirmed result shall be preserved by the licensed laboratory as follows: a. for at least 210 days after the results are mailed or otherwise delivered to the City; or b. if the employee or job applicant undertakes an administrative or legal challenge to the test results, then until the case or administrative appeal is settled. 7 . During the 180 day period after written notification of a positive test result, the employee or job applicant may obtain a portion of the sample for retesting by another licensed laboratory. The laboratory which performed the original test and confirmation is responsible for the transfer of the sample and for the integrity of the chain-of-custody during the transfer. 56 I I I I I I I I I I I I I I I I I I I B. Within five (5) working days after receipt of a positive confirmation test result, the City shall notify the employee or job applicant in writing of the results, its consequences, and the employee's or job applicant's options. The employee or job applicant is responsible for notifying the laboratory and the Medical Review Officer of any administrative or civil court action brought by his/her challenging the drug test. 9. An employee or job applicant who has a formal job offer, and who has received a confirmation drug test may contest or explain the results to the City's Human Resources Department within five (5) working days after written notification of the positive drug test results. If an employee's or job applicant's explanation or challenge is unsatisfactory to the City, the employee or job applicant may contest the drug results pursuant to Rule 38F-9.009 Fla. Administrative Code. 10. The City shall provide a copy of the results in accordance with the Florida Public Records laws. C. EMPLOYEE PROTECTION 1. The drug testing laboratory will not disclose any information concerning the health or mental condition of the tested employee. 2. The City shall not discharge, discipline, or discriminate against an employee solely upon the employee's voluntarily seeking treatment for a drug~related problem, or entering an employee assistance program for drug~related problems. Voluntarily seeking treatment shall mean where an employee requests assistance prior to being notified of a test being administered , or prior to a violation of this policy by an employee. 3. The City shall promptly detail in writing the circumstances which formed the basis of a determination of reasonable suspicion and shall provide documentation as provided by the Florida Public Records Act. Section 7. Rehabilitation A. B. Employees who are not immediately terminated for testing positive or for some other violation of the policy must enter an alcohol/substance abuse program as prescribed by the City's EAP Program Administrator in conjunction with management. The employee must sign. a Release permitting the EAP Program Administrator to communicate confidentially with the Human Resources Administrator or his/her 57 I I I I I I I I I I I I I I I I I I I c. designee, and the EAP Program Administrator must agree to provide the following information on a weekly basis: (a) Attendance at sessions; (b) Adherence to treatment plans; (c) Completion at sessions; (d) In case of outpatient program, provide detailed information as to whether the employee can work, including the ability to work light duty. Upon request, the EAP Program Administrator will provide the Human Resources Administrator with a written response to items (a) through (d). If the employee, according to the EAP Program Administrator, has not successfully completed the program within 90 calendar days of entering the approved program, or less as specified by the EAP Program Administrator, the employee shall be subject to termination. Section 8. Investigation of Cause for Reasonable Suspicion Process A. In the event there is cause for reasonable suspicion to believe that an employee's job performance is impaired by drugs or alcohol, the employee's supervisor, in the company of another employee, shall directly observe and document the behavior.· The employee's supervisor shall question the employee with regard to the observed behavior. Indications of impaired behavior include but are not limited to the following: staggering or irregular gait, the odor of alcohol on the breath, slurred speech, dilated or constricted pupils, inattentiveness, listlessness, hyperactivity, illogical speech, poor job judgment, unusual or abnormal job behavior. B. When possible a second supervisory/managerial employee shall also observe the employee to verify that there is reasonable cause to believe that drug or alcohol consumption may be involved. A determination shall be made as to whether or not the employee's behavior is impaired to the point of being unable to perform his/her duties effectively and safely. Should the drug and/or alcohol test results be positive determination be affirmati•Je, the employee shall be relieved of his/her duties and placed on a s1:1spension Administrative Leave without pay status pending the res~:~ Its of the drug andtor alcohol test. C. If it is concluded that there is cause of reasonable suspicion to believe that drug and/or alcohol consumption is involved, the supervisor or departmental head shall have a drug and/or alcohol test admin istered through the Human Resource Department. The supervisor will conduct an investigation and will gather any physical evidence, interview the principal parties involved and any eye witnesses , and document the results. If illegal controlled substances are found on the premises, the Police Department will be called immediately. Failure of an employee to take the recommended test(s) may be cause for disciplinary action . The City may also have the employee undergo a physical examination at the City's expense, at the time that the drug or alcohol test is administered. The test 58 I I I I I I I I I I I I I I I I I I I must be conducted within a reasonable t ime period (same day) after the observation of the problem behavior. D. After normal business hours, the employee's supervisor, or designee must contact the City's designated after-hours facility or the direst belov.· listed agency to have a drug and/or alcohol test administered. Instructions must be given as to where and to whom the e~genoy representative should report and what type of test Is to be performed (i.e., drug and breathJ9 1ood alsohol). Mobile Drug Testing Experts of Florida, Ins. (MDT} (561) 371 .6026 The employee will be given the opportunity to contact a family member or friend to arrange transportation home after the drug and/or alcohol test is administered . If this alternative cannot be made, the employee's supervisor will take the employee home. If this alternative is not possible, a taxi will be called and the employee will be responsible for the cost of the taxi. Under no circumstances will the employee be allowed to drive. If the employee attempts to drive on his/her own, the Police Department will be called immediately at 799-4445. The supervisor will be responsible for notifying the Human Resources Administrator and the City's Risk Manager if a work-related accident or injury has occurred the next day during normal business hours regarding the facts and circumstances surrounding the employee's drug/alcohol testing, and to complete an incident report. E. If the test is negative, there shall be no loss of pay or benefits. Where appropriate a doctor's signed release may be requ ired by the City before the employee is returned to work. Time lost due to an actual illness will be charged to personal leave. If the behavior that led to the initial investigation is not due to substance abuse but continues to hinder job performance, the City may require the employee to undergo further medical evaluation. F. If the test is positive, discipline may be recommended by the department head , up to and including termination. Circumstances that would warrant an immediate termination would include, but not be limited to, incidents where the employee 's impairment resulted in loss of life, serious injury to self or others, the serious loss or damage of property, or an incident of parallel magnitude. G. In cases where immediate termination is not warranted, the employee will be placed on leave status. The employee shall be required to use any accumulated leave before being placed on leave without pay until it is determined, through evaluation by the City's EAP that the employee is able to return to full duty. The employee shall be evaluated by the EAP, and a recommended appropriate treatment shall then be arranged. Once the in-patient part of the program has 59 I I I I I I I I I I I I I I I I I I I been completed, the employee may be returned to work with a written release from the EAP and the Human Resources Administrator. An employee who is returned to work as provided for under this procedure, and who fails to comply with any of the terms of an agreement upon treatment and/or return to work agreement, may be subject to the full range of disciplinary action, including termination. · H. An employee who is the subject of an investigation related to substance abuse may have a Union representative or another employee present during the investigation procedure outlined above. Disciplinary action taken by the City under this procedure shall be subject to the Grievance Procedure of the Collective Bargaining Agreement. I. The City, the employee and the union, where applicable, shall work cooperatively to facilitate the resolution of problems that arise under the administration of this policy and procedure. When appropriate the City may enter into joint agreements that establish the form of treatment and the conditions that will be imposed for the return of an employee to the work place. J. Employees will be subject to discipline, up to and including discharge, for refusing to cooperate with searches or investigation. Section 9. Disciplinary Action A. In the case of a first-time violation of the City's policy, which also includes State law, including a positive drug or alcohol test result, the employee will be subject to discipline, up to and including discharge. B. An employee who is employed in a special-risk position may be discharged for the first positive confirmed test result if the drug confirmed is an illicit drug under s.893.03. A special-risk employee who is participating in an employee assistance program or drug rehabilitation program may not be allowed to continue to work in any special-risk or safety-sensitive position. The City shall attempt to place a safety- sensitive employee into a non-safety sensitive position while the employee participates in the employee assistance program or drug rehabilitation program. If such position is not available, or if in-patient treatment is used, the employee may be placed on leave status. An employee placed on leave shall be required to use any accumulated leave before being placed on leave without pay. C. The City may, at its sole discFetion, suspend employees witho1:1t pay under this polioy pending the res1:1lts of a drug test or investigation. 60 I I I I I I I I .I I I I I I I I I I I ~D. Employees who are not immediately terminated for testing positive or for some other violation of this policy may, at the City's sole discretion, be placed on probation and required to execute an agreement acknowledging: 1. That they tested positive or otherwise violated the policy; and, 2. That in exchange for the City not terminating their employment for this instance of testing positive or otherwise violating the policy, they agree to undergo designated rehabilitation or other activities designated by the City's Employee Assistance Program (EAP) in conjunction with management; to undergo periodic unannounced screening for a set period, and be subject to termination for any future violation of the policy. Employees who test positive, admit to drug or alcohol use or related misconduct, or voluntarily seek assistance, and are not terminated, will not be returned to work or continue working until they have been evaluated by the City's EAP in conjunction with management to determine if they can safely return to work. An employee, who on the basis of unannounced or mandatory testing is found to be under the influence of alcohol or an illegal or illicit drug after successfully completing a treatment program, shall be immediately terminated from employment with the City. GF.. It shall be the responsibility of the supervisor to follow and enforce the policy and procedures set forth herein. Failure of the supervisor to do so may result in disciplinary action, up to and including discharge. Section 10. Arrest or Conviction for Drug~Related Crimes A. If an employee is arrested for or convicted of a drug-related crime, the City will investigate the circumstances and take appropriate administrative action. In most cases, an arrest for a drug-related crime constitutes reasonable suspicion of drug use under this policy. The following will apply: 1. During the investigation, the employee will be placed on leave without pay. After the investigation Is complete, the leave may be converted to a suspension or the employee may be reinstated depending upon the facts and circumstances. 2. If convicted of a drug-related crime, an employee will be terminated . 3. As a condition of employment, an employee will notify the City of any criminal drug statute conviction for a violation which occurred on City premises. The employee must give notice to the City within five (5) days of such conviction. 61 I I I I I I I I I I I I I I I I I I I Section 11. Confidentiality A. All Information received by the City through drug testing is confidential to the extent of the law under Florida Statute 440.102. Section 12. Authority to Issue or Modify Polley or Procedure A. The City's Manager at his/her discretion may issue, modify, approve or rescind departmental directives, SOP's, special orders, policy statements or rules and regulations for business necessity. Section 13: The random testing will become effective when the City's Employee Health and Wellness Center can accommodate the testing. 62 I I I I I I I I I I I I I I I I I I I ARTICLE 42 WORKWEEK AND OVERTIME Section 1: It is hereby agreed that no bargaining unit member assigned to a specialized unit shall be required to remain ofKiuty for more than forty (40) hours in-ooy salendaf.week, nor shall any Road PatroJ.-bargaining unit 111ember be requiFed to remain on duty for mor:e than 11 hours per day, unless eMtra hours ef d~· are deeFAed necessary by the Chief of Police anel additional compensation shall be paid theFefoFe. Saiel additional GOmpensation shall be at the rate of one and one half (1 .6) times the employee's regular rate of pay. Compensation for overtime work in excess of forty (40) hours per week. for specialized units. and In excess of 11 hours per day for Road patrol officers. excluding unscheduled leave. shall be at the rate of one and one-half (1 .5) the employee's regular rate of pay. Bargaining unit members may elect compensatory time off in lieu of compensation at the rate of one and one-half (1.5) hours for each hour overtime worked, subject to a maximum accrual of one hundred twenty (120) hours compensatory time. Compensatory time cannot be cashed out except upon separation from the City. Employees are encouraged to use compensatorv time in order to keep their compensatorv time balances as low as possible. Section 2: Bargaining unit members assigned to specialized units will work an average of forty (40) hours per week. All Road Patrol bargaining unit members shall work an a¥erage of 11 hours per day. The City will establish the hours of •.vork best suited to meet the needs of the Department to provide superior service to the community. Section 3: Overtime pay when so granted will normally be contained in the bargaining unit member's next regular paycheck following the time worked. Compensatory time will be requested in advance and approved in the same manner as personal leave. Section 4: The City will establish the hours or work best suited to meet the needs of the Department to provide superior service to the community, but agrees that work schedules will not intentionally be changed or altered to avoid the payment of overtime. Section 5: Bargaining unit members will be given adequate notice of any change in their regular shift except where exigent circumstances exist. Bargaining unit members required to work beyond their regular duty hours during a riot, hurricane, or emergency condition will receive either compensatory time or overtime pursuant to this Agreement. SectieR &: The City agrees that baijjaining unit R=tembers ¥1ill be oompensateel for off duty training at the regular hourly rate 'Nhen requiFed by the Chief of Police to attend training. Actual hours spent on o# duty training assigned by the Department will be counted to¥t-ard the accumulation of hours worked for purposes of calculating overtime. 70 EXHIBIT J s I I I I I I I I I I I I I I I II I I I Section 7: All bargaining unit members are expected to report to work on time, prepared to begin their assigned duties. Failure to do so shall result in disciplinary action. Section 8: The City recognizes that unusual circumstances may require that a bargaining unit member may find it necessary to request a change of his scheduled shift. Without obligating the City to pay overtime, bargaining unit members may work for or change shifts with another bargaining unit member performing similar duties. Such determination of duty compatibility and approval shall rest with the Chief of Police or his designated representative. No reasonable request will be denied. Sestlen 8: Goffipensation for o¥ertime •Jo«ork in excess of forty (40) hours per week, for speoialized units, and in e>roess of 11 hours per day for Roae patrol officers, excluein!iJ unscheduled lea\(o, shall ~e at the rate of one and one half (1.6) the employee's regular r:ate of pay. 71 I It I I I I I I I I I I I I I I I I I ARTICLE 43 SUPPLEMENTAL PAY AND HAZARDOUS DUTY BENEFIT Section 1: The City agrees that any member assigned to ride a two wheel motorized vehicle shall while so assigned, receive $50 per week in addition to his/her regular salary . Officers actively assigned to the K-9 Unit will receive $60 per month in addition to their regular salary . Section 2: Any officer or supervisor assigned to the Detective, Traffic Division or TAG YM that is placed on-call shall receive $15 per day to insure their ability to respond in a proper and timely manner. This does not apply during any officially declared emergency such as hurricanes or civil unrest. Section 3: Effective on ratification. any bargaining unit member assigned te under the Detective Investigations Bureau or TJ\C Unit shall receive 5% assignment pay calculated on base salary. Such assignment pay shall not be included in the employees' base salary, but shall be paid as a separate line item each pay period. 72 EXHIBIT l.o I I I I I I I I I I I I ,I I I I I I I ARTICLE44 CARE AND MAINTENANCE OF CANINES Section 1: Effective October 1, 2007, for any canine that has reached the end of its career as determined by a veterinarian, who can no longer perform as a service canine and Is reclassified for retirement, the following benefits shall be provided: A) The handler may be authorized to purchase the retired canine for one dollar ($1.00), and shall continue to provide a secure home for the animal's remaining life. B) The handler shall receive $600 at the K-9's retirement, to cover incidental costs. C) K-9 handlers will work four 8-hour shifts. allowing eight 8 hours for the care and maintenance of the canine during each workweek. 73 EXHIBIT 1 I I I I' I I I I I I I I I I I I I I I PBG City Proposal to PBA RETIREMENT Retirement benefits and employee contributions for employees covered by this Agreement shall be as provided in the City of Palm Beach Gardens Police Officers' Retirement Plan (the "Plan"), except as provided below. All changes to the existing Retirement System shall take effect September 30, 2011 or upon implementation of this Agreement, if earlier (the "effective date"). 1. 2. 3. 4. 5. 6. The benefit multiplier shall be 2.75% for all service after the effective date. Employees who are employed on the effective date shall retain their accrued benefits based on service prior to the effective date. The maximum benefit shall be 75% of average final compensation; pl'Ovided, any employee who has accrued a benefit percentage in excess of 75% on the effective date shall retain that benefit percentage, but shall not accrue any additional benefit percentage after the effective date. There shall be no cost of living adjustment applied to benefits earned based on service after the effective date. Compensation for pension purposes shall be base pay, excluding all other compensation; provided, in no event shall compensation for pension purposes be less than an employee's compensation on the day before the effective date, determined in accordance with the Plan provisions in effect on that date. The normal retirement date for all employees with less than 1 0 years of creditable service under the Plan on the effective date shall be age 59 with 10 or more years of creditable service. Employees with 10 or more years of creditable service on the effective date shall retain the current normal retirement date of age 52 with 1 0 or more years of creditable service or 20 years of creditable service regardless of age. The City shall, at its discretion, discontinue participation in Chapter 185, Florida Statutes, following the effective date. At the time the City discontinues participation in Chapter 185 the employee pension contribution shall decrease to 8% of compensation. EXHIBIT 1_8_ I I I I I I I I I I I I I I I I I I I ARTICLE 15 GRIEVANCE AND ARBITRATION PROCEDURE Section 1: A grievance, as used in this agreement, is limited to a complaint or request of a bargaining unit member or the PBA which involves the interpretation or application of, or compliance with, the provisions of this agreement. Section 2: Grievances concerning working condition not specifically covered by the terms and provisions of this Agreement shall be subject to the grievance procedure up to, but not including, arbitration. Section 3: In the event a grievance should arise as to the interpretation or the application of the terms of the agreement or departmental regulations, the said dispute or grievance shall be dealt with in the following manner. Any grievance not answered by the City within the time limits provided below will automatically advance to the next higher step of the grievance procedure. STEP 1 The aggrieved employee or an Association representative shall present the grievance or dispute in writing, setting forth the facts with particulars and the remedy sought, within ten (1 0) working days (Monday through Friday) of its occurrence or knowledge thereof, to the Bureau Commander. The Bureau Commander shall reply In writing within ten (1 0) working days (Monday through Friday) of receipt of the grievance or dispute. If the Bureau Commander shall fail to respond in writing, the grievance is presumed to be denied and the employee or an Association representative may move to the next step. STEP2 If no written reply has been made or if a written response has been made, and the aggrieved employee is dissatisfied, the aggrieved employee or the PBA representative may, within ten (1 0) working days (Monday through Friday) of receipt of a reply or if none is submitted, present the grievance or dispute to the Chief of Police. The Chief of Police shall reply in writing within ten (1 0) working days (Monday through Friday) of receipt of the grievance. If the Chief of Police shall fail to reply in writing, the grievance is presumed to be denied and the employee or an Association representative may move to the next step. 20 EXHIBIT 1~9- I• I I I I I I I I I I I I I I I I I I STEP3 If the Chief of Police replies and the aggrieved party or the PBA is dissatisfied, then the grievance may be submitted to the City Manager within ten (10) working days (Monday through Friday) of receipt of the Chief's reply. The City Manager shall reply within ten (1 0) working days (Monday through Friday) of receipt of the grievance or dispute. If the City Manager shall fail to reply in writing , the grievance is presumed to be denied and the employee or an Association representative may move to the next step. STEP4 If the grievance has not been settled by Steps 1-3, the PBA or the City may refer it to arbitration within fifteen (15) working days (Monday through Friday) of receipt of the City Manager's reply . The PBA or the City will submit a request to the Federal Mediation & Conciliation Services (FMCS) for a panel of nine (9) arbitrators from which one (1) shall be selected by the Parties. The arbitrator's decision shall be supported by substantial evidence on the reco rd as a whole. The decision shall be in writing with a full statement of findings and reasons. The decision of the arbitrator shall be final and binding on the parties; provided that the arbitrator shall have no power to modify, amend, or alter this agreement. The expense of the arbitrator shall be borne by the parties. Section 4: By agreement of both parties, a meeting will be held at any step of the grievance procedure. Section 5: Expedited Arbitration All discharge grievances, and any other grievances mutually agreed upon for expedited processing, shall be arbitrated on an expedited basis. To accomplish this goal, the City and the PBA agree upon the following procedure for expedited cases. (1) The selection of an arbitrator must be completed within the time limits provided by the FMCS. Failure to do so will bar the untimely party from submitting its preference or choice of an arbitrator. (2) After an arbitrator has been selected, the arbitration hearing shall be held no later than thirty (30) days thereafter, unless the arbitrator is unavailable within this thirty (30) day period. (3) Briefs, if any, must be filed with the arbitrator no later than thirty (30) days after the close of the hearing or after receipt of the transcript, if a transcript is requested . (4) The arbitrator must render an opinion within thirty (30) days of receipt of the briefs. 21 I I I I I I I I I I I I I I I I I I I Section .6: The PBA and the City shall each bear its own expense In the arbitration proceedings, except that both parties shall share equally the fee and other expenses of the arbitrator. Section 7: A probationary employee may not grieve any matter concerning assignment, or discharge. Section 8: Settlement of grievances prior to the issuance of an arbitration shall not constitute a precedent nor shall it constitute an admission that the Agreement has been violated. 22 I I .I I I I I I I I I I I I I I I I I ARTICLE 18 INSURANCE BENEFITS Section 1: The City shall continue providing the current health insurance coverage at no cost to individual bargaining ~:~nit employees or the same contribution amounts as all other employees of the Citv. whether or not such employees are in a bargaining unit. from October 1, ~ 2011 through September 30, ~ 2012. Section 2: Employees who elect to maintain dependent coverage will contribute $449 per montl=l for HMO oo\~erage and $220 per month for PPO oo\'erage through FY 2010 20-14 a dollar amount equal to the amount contributed toward the cost of dependent coverage that any other employees of the City are required to pav. whether or not such other employees are in a bargaining unit. Section 3: The Parties to this AgreefJlent ha'Je established a Voluntary limployees Senefioiary l\ssooiation ("VEBN'). Any modmoations to the V~BA in the-f1:1t1:.1re -must-be agreed to 9y both Parties. Effective October 1 I 2011 I the City will discontinue making contributions into the Voluntary Employees Beneficiarv Association ("VEBA"l. 25 EXHIBIT I JO I I I I I I I I I I I I I I I I I I I ARTICLE 32 SALARIES Section 1: There shall be no salary increases fer FY 2010 . There shall be a fjve percent (5%) reduction in the base salary of all bargaining unit members effective upon ratification or imposition of the agreement until the City determines that it has recouped what it anticipated receiving in concessions. Section 2: The minimum salary for Police Officer effective October 1, 2-040 2011 is $46,149. The minimum salary for Communications Operator effective October 1, ~ 2011 is $42,185. Section 3: Any Bargaining Unit member's work schedule that requires them to work the majority of their regular shift after midnight for the majority of the pay period shall receive an additional ~No (2) hoi:Jrs oomf:iensatory time f:iOF f:iay f:iOFiod a two and one- half percent (2.5%) assignment pay calculated on base salary. Such assignment pay shall not be Included In the employees' base salary. but shall be paid as a separate line item each pay period. 41 EXHIBIT I I I I I I I I I I I I I I I I II II I I I I ARTICLE45 POLICE OFFICERS' Bibb OF RIGHTS ANO-ADMINISTRATIVE INVESTIGATIONS Section 1 i Ttlo City agrees ttlat in ttle invesiigation of bargaining Ynlt FRemboFS' .oondYct it shall ooFRply •;.~th Sections 112.532, 112.533, and 112.534, Florida Statl:ltos, as amended. Section 2 1: In any investigation pertaining to bargaining unit conduct, any member of the bargaining unit, including tho offioor(s) employee(s) that are the subject of the investigation, shall answer any and all questions propounded to them provided. 1) The person being intewiowed has been ad'Jised of his/her rights pl:IFSYant to The Law Enforoemont Officers Bill of Rights; ~11 When the interview could involve criminal culpability, the officer employee will also be advised of his/her rights pursuant to Garrity; ~~ Questions will focus on the incident(s) being investigated. Section 3: Failure to answer a question or answering a material question untruthfully will result in termination . 74 EXHIBIT I I~ I I I I I I I I I I I I I I I I I I I ARTICLE 13 DURATION Section 1: This agreement shall be effective October 1, 2010 2011 subject to ratification by the PBA and approval and appropriation of the necessary funds by the City Council of Palm Beach Gardens, Florida. This agreement shall continue in full force and effect from October 1, 20-W 2011 to September 30, ~ 2012. Section 2: The parties agree to reopen negotiations for a successor contract by J4:me 4, 2:G# August 15. 2012. Should a successor agreement not be ratified by the PBA and approved by the City Council for the year beginning October 1, 20-14 2012, this agreement shall remain in full force and effect until replaced by a new agreement. 18 EXHIBIT I l3 I I I I I I I I I I I I I I I I I I I NOTICE OF SPECIAL MAGISTRATE RECOMMENDATIONS REJECTED BY THE PBA IN THE MATTER OF IMPASSE BETWEEN CITY OF PALM BEACH GARDENS AND PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION CASE No. SM-2012-017 BEFORE: SPECIAL MAGISTRATE MARTIN A. SOLL, ESQ. By: Gary Lippman General Counsel Florida Bar No.: 79121 Palm Beach County Police Benevolent Association, Inc. 2100 North Florida Mango Road West Palm Beach, FL 33409 Phone: 561-689-3745 Email: garv@pbcpba.org I I I I I I I I I I I I I I I I I I I INTRODUCTION On June 6, 2012 the Palm Beach County Police Benevolent Association ("PBA") received the Recommended Decision of Special Magistrate Martin A. Soli, In the Matter of the Impasse between the City of Palm Beach Gardens, Florida ("City") and the PBA, State of Florida Public Employees Relations Commission ("PERC") Case Number SM- 2012-017 . Section 447.403(3), Florida Statutes, requires written notice of those Special Magistrate recommendations "rejected by either party" to be filed with PERC, among other things; albeit, other than its receipt of this document for filing, PERC no longer is involved in this matter. 1 Section 447.403(4)(a), Florida Statutes provides that after a written notice of rejected recommendations has been filed, the City Manager must provide the City Council with the Special Magistrate's Recommended Decision "together with [his] recommendations for settling the disputed impasse issues," and s.447.403(b), Florida Statutes extends to the subject employees that same opportunity. Thereafter, pursuant to ss.447.403(c) and (d), Florida Statutes et seq. the City's "legislative body" (i.e. City Council) is empowered to resolve with finality the disputed issues. Because this matter is for the Palm Beach Gardens City Council to resolve, and for economies of time, with this "Notice of Special Magistrate Recommendations Rejected by the PBA" the PBA simultaneously addresses the Council members with its recommendations for settling the dispute and requests each of you consider the position 1 Unless either of the Parties files an Unfair Labor Practice Charge ("ULP") pertaining to these proceedings . Page 2 of 14 I I I I I I I I I I I I I I I I I I I your police officers and communications personnel took before the PERC Special Magistrate; towards that end, pages 13 to 17 of the Recommended Decision attempts to summarize, in bullet-points, what the men and women in your Police Department proposed. For your convenience, the PBA's Post Impasse Brief is appended; should you choose to, you may acquaint yourself with what actually went on in Council's Chambers in your absence. It cannot be disputed that at this juncture, and with a final resolution unlikely to be had much before August, what your employees have proposed will incur a lesser cost to this fiscal year Budget than what your representatives had proposed many months ago. Rejecting lump sum "bonuses" for all and additional assignment pay for some, your Police Department employees proposed an extension of across-the-board freezes in pay in effect since 2009, and no bonuses or additional monies for anyone through the end of September, 2012. FINDINGS AND RECOMMENDATIONS SPECIFICALLY REJECTED At the outset, the PBA rejects the Special Magistrate's extra-statutory "finding" that "Factor #5" is the "overriding statutory factor" in this matter. While the "availability of funds" certainly may be the most significant consideration, as the last of five (5) "factors" he was required to consider and in the context of the first four (4), it is not "overriding" in your City. The Special Magistrate accurately attributed to the "PBA's negotiating team" a recognition that "significant economic concessions" were warranted at the time negotiations commenced and, in consequence, there had been an initial "tentatively agreed" Collective Bargaining Agreement. What your representatives in negotiations and Page 3 of 14 I I I I I I I I I I I I I I I I I I I the Special Magistrate failed to address, however, is the fact that a majority of your Police Department's employees rejected the "tentative" Agreement, notwithstanding the fact that each an every one of the them would have received more money (many would have received several thousands of dollars) than what was sought by them at Impasse. Your police officers, sergeants, emergency communications operators and their supervisors are neither akin to the marauders in Capital One credit card commercials , nor Bolsheviks; they are hard-working men and women struggling to provide for their families and thoroughly familiar with budgets by which more is done with less each day. Re: ARTICLE 3 OFFICER IN CHARGE AND FIELD TRAINING OFFICERS The PBA rejects the Special Magistrate's recommendation that you accept and impose, if necessary, the increased assignment pay in this provision, together with the remaining modifications therein. See Recommended Decision, p . 18. Your employees have proposed the status quo, and there can be no dispute: the City's first proposed 2.5% and now-proposed 3% assignment pay will cost your City more than maintaining the current provision. Re: ARTICLE 18 INSURANCE BENEFITS The PBA rejects the Special Magistrate 's recommendations that you accept and impose, if necessary, Sections 1 and 2 of this provision. These provisions demonstrate a uniquely gratuitous approach to your Police Department's personnel. While no sworn bargaining unit members received the 3% increase to wages that "all other employees of the City" received (including yourselves) to offset their FRS contributions, for purposes of Page 4 of 14 I I I I I I I I I I I I I I I I I I I their insurance benefits and out-of-pocket costs, sworn bargaining unit members are henceforth no different than "all other employees of the City?" The PBA accepts the Special Magistrate's recommendation as it pertains to Section 3 of this Article. Your Labor counsel's initials and "tentative agreement" on your behalf to Section 3 on November 17, 2011 very clearly "demonstrates" an understanding of your employees' needs for their VEBA, and the City's willingness back then to negotiate. It is no less clear your representatives and your City Manager now recommend that you "kill" it. Re: ARTICLE 21 LONGEVITY BENEFITS The PBA rejects the Special Magistrate's recommendation with regard to this provision. Unless the City intends to "claw back" earned years of continuous service since September 30, 2011, it is fundamentally unfair to deny such earned years of qualifying continuous service to a handful of employees, if not fewer, whose dates of hire are in the last two (2) months of this fiscal year. Re: ARTICLE 30 PROMOTIONS The PBA rejects the Special Magistrate's recommendation with regard to this provision; the "tentative agreement" made on "11-17-11 ,"as with the others, was part and parcel with a "package" proposal bargaining unit members refused to ratify. To the extent the City eliminated entirely a bargaining unit of its lieutenants, and longest experienced law enforcement officers, the only available career advancement now for any police officer is to "sergeant." At the Hearing in this proceeding, a two-year sergeant with more than 16 years law enforcement experience was shown to be paid less than a three-year police officer in Boca Raton, and less than a five-year deputy sheriff with Page 5 of 14 I I I I I I I I I I I I I I I I I I I PBSO; and that reality occurred with the 8% increase upon promotion your representatives want you to eliminate in Section 12. Reducing to 5% the increase upon promotion cannot compensate for the significant increase in responsibilities now being assumed by sergeants; functioning today as your lieutenants used to for considerably less pay, fewer benefits, and dimmer prospects for retirement. The PBA recommends a continuation of the status quo with regard to this Article for the few remaining days of this fiscal year. Re: ARTICLE 36 SUBSTANCE USE AND TESTING The PBA rejects the Special Magistrate's recommendation with regard to this Article's Section 6, Random Testing. There has not been one non-probationary officer who has tested positive for alcohol or drugs on duty in consequence of "reasonable suspicion" or otherwise. At a time the City is claiming the unavailability of funds even to maintain the status quo, undertaking the additional costs of random testing of up to "50% of bargaining unit employees every year" is unjustified. The policy and practices proposed for bargaining unit members in this regard expressly do not apply to command personnel; a curious message you may want to consider in any event. The PBA does not reject that portion of the Special Magistrate's recommendation which would include the additional language appearing under Section 4, C.2, "After Accident Testing" by which "minor crashes," etc. would not require testing. To the extent Page 6 of 14 I I I I I I I I I I I I I I I I I I I there remains some considerable confusion over the City's designated facility for testing, those provisions relating to any such facility are rejected. 2 Re: ARTICLE 42 WORKWEEK AND OVERTIME The PBA rejects the Special Magistrate's recommendations pertaining to this Article. It is unfair to eliminate bargaining unit members' ability to "cash out" earned compensatory time after certain command personnel notoriously made a run on their own "banks" of accrued "comp. time" at considerable costs to the City (occasioned by said personnel's considerably higher rates of pay). Closing such opportunities to bargaining unit members simultaneously as their pay is frozen or reduced adds injury to insult. The additional language proposed by which overtime hours/earnings would be forfeited by "unscheduled leave" similarly is unjustified ; the City produced no evidence whatsoever that "unscheduled leave" was subject of misuse or abuse warranting this particular change . Re: ARTICLE 42 SUPPLEMENTAL PAY AND HAZARDOUS DUTY BENEFIT The PBA rejects the Special Magistrate's recommendation pertaining to this Article. It cannot be disputed that what the City proposes, and what was subject of the"Tentative Agreement" in November, 2011 involved additional monies to some bargaining unit members and, in consequence, additional costs to the City. The bargaining unit voted this provision down and made clear its wishes in that process : no additional monies for anyone; and, continue the wage freeze and status quo to the end of this fiscal year. 2 It is unclear whether an Employee Health and Well ness Center will or "can accommodate the testing ." Page 7 of 14 I I I I I I I I I I I I I I I I I I I Re: ARTICLE 44 CARE AND MAINTENANCE OF CANINES The PBA rejects the Special Magistrate's recommendation pertaining to this Article. As was the case with other Articles at Impasse and subject herein, the changes appearing in this Article were part of a "package" bargaining unit members rejected . The PBA recommends a continuation of the status quo for the remaining days of this fiscal year. Re: "CITY PROPOSAL 2" (pertaining to Police Officers' "retirement language") 3 The PBA rejects the Special Magistrate's recommendation accepting and recommending the language subject of what he denominated "City Proposal 2; "which calamitously reduces your police officers' multiplier; which will require a substantial number of your officers to continue their daily rough and tumble to age 59; and, which in every respect constitutes a reneging by the City with regard to precisely those terms and conditions of employment that attracted the men and women to your employment. Portraying at the Hearing the promises made by this City to those men and women as a giant gorilla, as your Labor counsel did , was a caricature both offensive and misleading. In the weeks since the Hearing in this matter, law enforcement officers in Palm Beach County have been subject of unprovoked violent physical attacks. Three (3) police officers have been shot, and Palm Beach County now is at the epicenter of violence directed at law enforcement, nationally. Yet, your Labor counsel advanced the proposition that "[t]here is something very wrong" when police officers garner considerably more in pension contributions than other municipal employees. This organization knows of no 3 For ease of reference the PBA is following the order of the Special Magistrate 's recommendations ; here, at number "2" of his recommendations. See Recommended Decision, pp. 18-19. Page 8 of 14 I I I I I I I I I I I I I I I I I I I other public employment requiring ballistic vests, subjecting employees to physical batteries, and targeting them for gunshots part and parcel with employment. At the Hearing, your Finance Director testified that he chose not to attend a Pension Board meeting at which a study was presented and discussion had about ways your City might save millions of dollars and significantly increase the Pension's funding ratio. Are you comfortable with this? Re: ARTICLE 32 SALARIES The PBA rejects the Special Magistrate's acceptance of what he identified as "City Proposal3;" by which Section 1 of said Article would provide "a five (5%) reduction in the base salary of all bargaining unit members." Under the circumstances, demonstrably shown at the Hearing and acknowledged by the Special Magistrate that your police officers and sergeants are paid considerably less than their counterparts at those agencies subject of your own Labor counsel's comparative evidence (e.g., Boca Raton and PBSO), a 5% reduction in pay is malicious. As you consider this matter, Greenacres, Juno Beach, Jupiter, North Palm Beach, Palm Springs, and PBSO all are providing additional monies to their law enforcement and communications personnel. You can be assured a reduction in pay will not be ratified by your police; you will have to impose that additional indignity. Re : ARTICLE 45 [currently] POLICE OFFICERS' BILL OF RIGHTS AND ADMINISTRATIVE INVESTIGATIONS The PBA rejects the Special Magistrate's recommendation of the status quo . The PBA's proposed modification, including its re-titling the Article more appropriately "RIGHTS OF BARGAINING UNIT MEMBERS UNDER INVESTIGATION" expressly Page 9 of 14 I I I I I I I I I I I I I I I I I I I extends to your Emergency Communications Operators and their Supervisors the provisions which, in practice, the City must extend to them as bargaining unit members pursuant to our current Collective Bargaining Agreement. With the exceptions of PBA- proposed Sections 6 and 8, there are no provisions within PBA-proposed ARTICLE 45 that are not currently within the statutes governing law enforcement officers' administrative investigations and, in consequence of our Collective Bargaining Agreement, of application to your non-sworn Emergency Communications Operators and their Supervisors. Arbitrators are no less qualified to interpret and apply the subject provisions than they are to interpret and apply Contractual workweek and overtime provisions, also subject of statutes. Re: ARTICLE 13 DURATION The PBA accepts the Special Magistrate's ineluctable recommendation with regard to Section 1 of this provision. Even assuming your resolution of this unfortunate circumstance might be ratified by your Police Department employees, such a result would unlikely be effective until the end of July; leaving at most only two (2) months left of any such Agreement. The PBA has no choice but to reject the Special Magistrate's recommendation at Section 2 for obvious reasons; "June 11, 2012" already has passed as a deadline to convene negotiations towards a successor Agreement. The Special Magistrate's remaining recommendations within his number "6" (at pages 19-20) similarly are self-evidently necessary consistent with an Agreement, if any, set to expire imminently on September 30, 2012. Page 10 of 14 I I I I I I I I I I I I I I I I I I I Re: ARTICLE 15 GRIEVANCE AND ARBITRATION PROCEDURE The PBA rejects the Special Magistrate's recommendation regarding Section 7. Extending fundamental due process to probationary employees only when they may be subject to discipline will not hamper Management's unrestricted prerogative to terminate probationary employees for unsatisfactory performance, without any rights to appeal. This modification is the right thing to do, and it will incur no additional costs to the City. Pursuant to the PBA modification to Section 6, which the Special Magistrate recommends and with regard to which the PBA accepts his recommendation, there would be no arbitrator costs and fees to the City if the PBA were to lose in a probationary and/or non- probationary employee's disciplinary arbitration. CONCLUSION The statute governing public employee impasses affords your employees the opportunity to submit recommendations to you for settling the matter. The law does not and cannot require you to read what your employees submit. You may choose to read only what your Labor counsel has prepared for Mr. Ferris. There will not be a test; no one ever will know if you choose not to read this submission and the attached Post Impasse Brief submitted on behalf of your employees. You have other, full-time jobs; and time is short. Fully one year ago you had been advised of the collective bargaining with your Police Department employees occasioned by their Contract's expiration October 1. 2011. You very likely gave your imprimatur to your representatives' collective bargaining Page 11 of 14 I I I I I I I I I I I I I I I I I I I objectives for the October 1, 2011 -September 30, 2012 fiscal year at about this time last year. One year later, and the matter is back for your reconsideration. In this past year much has changed in Palm Beach Gardens. This past March your Mayor declared the recession was "over" in your City. New construction in your City is second only to Boca Raton in this County, and commercial leasing rates are back up to where they were before the housing "bubble" burst. Your City is expanding, development is booming, and for the first time in a few years property tax revenues are projected to go up modestly; even as you hold your millage rates lower than they were in 2002 and your unassigned fund balance has increased since then, to more than it was in 2008. Your citizens have continued not to pay for curbside garbage or trash collection, they do not pay utility services taxes, or storm water assessments or taxes, and they have not paid for a wage increase for their Police Department employees since October 1, 2009. Days before the PERC proceedings in this matter a "State of the City" Power Point and video heralded a new day in Palm Beach Gardens, and virtually every day since then, local newspapers have carried articles noting various metrics unique to Palm Beach Gardens and uniquely positioning this City more favorably for the future. Yet, the message being delivered on your behalf to the men and women in your Police Department is very different. While Palm Beach Gardens may be "a unique place to live, learn & play," it has become a demoralizing place to work as a police officer. Do you care? Annexation, commercial and residential expansion, and readily apparent prosperity (if not opulence) in Palm Beach Gardens mean more calls for assistance into your Page 12 of 14 I I I I I I I I I I I I expanded new Communications center, and more work for your police in an environment uniquely and measurably more dangerous for police than it was a year ago. While virtually every law enforcement agency in Palm Beach County has seen fit to provide wage increases or lump sum bonuses, you are being asked to reduce your Police Department employees' compensation, and renege on the promises of a pension that brought some of the finest law enforcement talent to your City. For purposes of the statute governing the Parties, and for the reasons advanced in the proceedings, discussed at length in the appended Post Impasse Brief and addressed above, the foregoing recommendations are rejected by and on behalf of your Police Department employees . As a matter of law, this matter now is squarely in your hands to fashion an Agreement that is fair; "in the public interest, including the interest of the public employees involved." See, s. 447.403(4)(d), Florida Statutes (emphasis added). Under these unique circumstances, the "interest of the public employees involved" should be the "overriding statutory factor ." What your Police Department employees recommend is you continue their expired Contract, their pay freeze and their pension provisions for the remaining days left in this fiscal year, and you direct your representatives to reconvene negotiations in good faith for a Contract to commence October 1, 2012. Gary LiJ?pm n, G n ral Counse l ~ rida Bar No. 79121 Palm Beach County PBA 2100 N. Florida Mango Road West Palm Beach, FL 33409 Phone: 561-689-3745 E-mail: garv@pbcpba.org Page 13 of 14 I I I I I I I II I I I I I I ~ I CERTIFICATE OF SERVICE I hereby certify the foregoing Notice of Special Magistrate Recommendations Rejected by the PBA has been provided June 26.2012 by facsimile (850) 488-9704 and regular U.S. mail to Patty Perry, Florida Public Employees Relations Commission, 4050 Esplanade Way, Room 150, Tallahassee, FL 32399-0950 and Robert L. Norton, Esquire, ALLEN, NORTON & BLUE, PA, 121 Majorca Avenue, Suite 300, Coral Gables, FL 33134. Page 14 of 14 I I I I I I I I I I I I I I I I I I I POST IMPASSE BRIEF OF THE PBA IN THE MATT ER OF IMPASSE BETWEEN CITY O F PALM BEACH GARDENS AND PALM BEACH GARDENS PO L ICE BENEVOLENT ASSOCIATION CASE No. SM-2012-017 BEFORE : SPECIAL MAGISTRATE MARTIN A . SOLL , ESQ . By: Gary Lippman General Counsel Florida Bar No.: 7912 1 Palm Beach County Police Benevolent Association , Inc. 2100 North Florida Mango Road West Palm Beach , FL 33409 Phone: 561-689-3745 Email : gary@pbcpba .org I I I I I I I I I I I I I I I I I I I SUMMARY OF THE OVERALL FACTS AND CIRCUMSTANCES OF THIS IMPASSE The Palm Beach County Police Benevolent Association ("PBA") represents sworn law enforcement pol ice officers and sergeants, together with emergency communications operators and their supervisors in a single bargaining unit working for the City of Palm Beach Gardens ("City"), in its Pol ice Department. The Collective Bargaining Agreement between the PBA and the City covering the subject City employees expired September 30, 2011 . See PBA Exhibit 20. 1 Pursuant to the expired Collective Bargaining Agreement ("CBA") and the current status quo, there have been no "salary" increases for bargaining unit members since those effective October 1, 2009 under the terms of the predecessor CBA. See id. at Article 32, Salaries, Section 1, p. 41 ("There shall be no salary increases for FY 2010 -2011."). The Impasse subject of this proceeding is the second declaration of Impasse by the City in these Parties ' negotiations towards a Collective Bargaining Agreement to succeed the Agreement which expired September 30, 2011 . The City first declared Impasse after the Agreement expired , on October 19, 2011 . See City April 20, 2012 "Position The PBA's Exhibits at the hearing were submitted within two (2) 3-ring binders , marked "PBA EXHIBITS " and "PBA COMPARATORS," respectively. Supplementing the "PBA EXHIBITS" binder, containing Exhibits tabbed at numbers 1 through 15, were PBA Exhibits submitted additionally, numbered 17 through 20 . Accordingly , references to the PBA's Exhibits shall be to the PBA Exhibit numbers and the page(s) within said Exhibit (e.g., PBA Exhibit 20, p. 18). Contained within the second of the 2 PBA binders, that which is marked "PBA COMPARATORS," are seven (7) collective bargaining agreements currently in effect elsewhere within Palm Beach County, tabbed at numbers 1 through 7 . References to the PBA's Comparators shall be to the PBA Com para tor tab number(s) and the page(s) within that collective bargaining agreement (e .g ., PBA Comparator 1 , p . 54). Page 2 of 27 I I I I I I I I I I I I I I I I I I I Statement" at Exhibit A thereto (October 19, 2011 letter from counsel for the City to PBA counsel); see PBA Exhibit 3.A. 2 Thereafter, and in advance of any further proceedings pursuant to §447.403, Florida Statutes, the Parties re-engaged collective bargaining negotiations culminating in a "package" proposed by the City; to which the Parties tentatively agreed, subject to ratification. The "package" produced by the City on or about January 13, 2012 had two (2) components: a "FINAL DRAFT" tentative Collective Bargaining Agreement to be effective October 1, 2011 through September 30, 2014; and, a tentative "PBA AGREEMENT WITH CITY OF PALM BEACH GARDENS REGARDING BARGAINING UNIT MEMBERS' RETIREMENT." See PBA Exhibits 3.C and 3.D, respectively. 3 Prior to the City's first declaration of Impasse October 19, 2011, the City of Palm Beach Gardens Police Officers' Retirement Plan had not been subject to collective bargaining. Neither a "Pension" nor "Retirement Plan" Article was negotiated prior to PBA Exhibit 3 is the "List of Issues at Impasse " submitted April 19, 2012 pursuant to the Special Magistrate's April 9, 2012 Notice of Special Magistrate hearing Dates. Because the PBA attached to said "List" exhibits marked "A" through "E ." only this particular PBA Exhibit additionally will reference letters. 3 The City's identification of its proposed modifications to "Bargaining Unit Members' Retirement" is misleading . Communication Operators and Communication Supervisors within the bargaining unit and subject to the Parties' Collective Bargaining Agreement are not covered by the City of Palm Beach Gardens Police Officers ' Retirement Plan. Accordingly, two (2) separate ballot boxes had to be employed for ratifications ; one box into which ballots were submitted by all bargaining unit members with regard to the tentative Collective Bargaining Agreement , and the other box into which ballots were submitted only by sworn law enforcement bargain ing unit members with regard to the proposed modifications to the Police Officers ' Retirement Plan . Sworn law enforcement personnel within the bargaining unit were provided 2 ballots each in order to separately cast their votes for the tentative Collective Bargaining Agreement and the proposed modifications to the Police Officers' Retirement Plan . Communication Operators and Communication Supervisors within the bargaining unit were provided only one (1) ballot each in order to cast their votes only with regard to the tentative Collective Bargaining Agreement. While it was of no consequence with regard to the ratification voting, complicating matters was, and still is, the fact that command level law enforcement employees not within the bargaining unit and not covered by the Parties' Collective Bargaining Agreement are covered by the subject Police Officers' Retirement Plan. Page 3 of 27 I I I I I I I I I I I I I I I I I I I October 19, 2011, and no such thing ever has appeared in the Parties ' Collective Bargaining Agreement. See PBA Exhibit 20. And the City is not now proposing any such Article be added to the Agreement. See PBA Exhibits 3.C and 3.0; see also City April20, 2012 "Position Statement" ("the City's proposal for revisions to the Retirement Plan."); id. at Exhibit D thereto. On January 25, 2012 the PBA conducted ratification voting with regard to the Collective Bargaining Agreement and "Retirement" Agreement"package ." The bargaining unit failed to ratify either of the tentative Agreements, and the City was so advised immediately. Shortly thereafter, various meetings were had by and between bargaining unit members and their PBA Representatives with regard to the failed negotiations. The meetings culminated in the bargaining unit members directing their PBA representatives and counsel to begin, anew, negotiations towards a successor Collective Bargaining Agreement of only one (1) year duration ; that is, to be effective through September 30, 2012. On February 15, 2012 the Parties reconvened. Counsel for the City announced that in consequence of the bargaining unit's failure to ratify , the City's proposals for a successor three (3) year Collective Bargaining Agreement would incorporate various City proposals from October 19 and November 17, 2011 and, further, that the City intended to reduce all bargaining unit members' pay by two percent (2%). The City then declared Impasse and its representatives walked out. No Articles of the Parties' Collective Bargaining Agreement were subject of tentative agreements between them in advance of the City's second declaration of Impasse on February 15, 2012. Page 4 of 27 I I I I I I I I I I I I I I I I I I I 4 After the City's second declaration of Impasse on February 15, 2012, the PBA notified PERC and requested a list of Special Magistrates. See PBA Exhibit 3.E. At the hearing the City proposed the identical collective Bargaining Agreement provisions the bargaining unit rejected on January 25, 2012, with three (3) notable exceptions; exceptions which constitute even further reductions in pay and benefits than those the City had warned of February 15, 2012, before its abrupt second declaration of Impasse. See Opening Statement of Counsel for the City, Robert L. Norton, Esq., Transcript of Proceedings April 23, 2012 In the Matter of Impasse between City of Palm Beach Gardens and Palm Beach Gardens (sic) Police Benevolent Association before Special Magistrate Martin A. Soli, Esq., page 85, line 13 through page 89, line 5 (in pertinent part): 4 MR. NORTON : [W]ages was going to be 0. When we met here in February, it was we wanted a 2% pay cut. Now we're looking at going downhill. ... * * * [W]e now propose a 5% reduction in base salary. * * * It was 0% in November, 2% in February, and it's now 5%. * * * SPECIAL MAGISTRATE SOLL: [B]ut are you still seeking , I'll just say, the benefit cuts or other contractual cuts today that was rejected? References to the Transcript of Proceedings April 23, 2012 "In The Matter of Impasse between City of Palm Beach Gardens And Palm Beach Gardens (sic) Police Benevolent Association , Case No . SM-2012- 017 , Before : Special Magistrate Martin A. Soli, Esq ." shall be to the Transcript ("T.), at the respective pages ("p·) and lines from which the references are taken. Page 5 of 27 I I I I I I I I I I I I I I I I I I I MR. NORTON: Yes. SPECIAL MAGISTRATE SOLL: The same ones? MR. NORTON: The same ones. Notwithstanding its attorney's representations that apart from the additional and deeper wage reductions it brought to this second Impasse, remaining City proposals to reduce bargaining unit members' benefits, and other Contractual cuts were "the same ones" rejected this past January, the City came to these proceedings with new proposals that conclusively will end a Voluntary Employees Beneficiary Association ("VEBA"), that will reduce its police officers' "Retirement" benefit multiplier further than what had failed ratification in January and, additionally, that will extend a majority of City police officers' work lives by four (4) years (to age 59) beyond what had failed ratification in January. The VEBA is composed entirely of bargaining unit members' deferred wages; which the City deposits, pre-payroll taxes into the fund. The VEBA first was established by the PBA and approved by the City in 2007 as a hedge against the anticipated medical and insurance costs for bargaining unit members in retirement. See PBA Exhibit 15. While counsel for the City declared that the City intended "not to do away with it, we'd freeze it," Article 18, Insurance Benefits as appearing in the City's April 20, 2012 "Position Statement" makes clear that the City "proposes to delete the entire section [3]" in Article 18 by which the VEBA was established and continues to exist. See Opening Statement of Counsel for the City, supra at T. p. 89, lines 5-12; compare City April 20, 2012 "Position Statement" at p. 2 (regarding Section 3 of Article 18, Insurance Benefits) (emphasis added) and id. at Exhibit A thereto, p. 25 (Article 18, Insurance Benefits, Section 3 as it appeared in "the City's final impasse position" when Impasse first was declared by the City October 19, 2011 ); see also id. at Exhibit C thereto, p. 25, Article 18, Page 6 of 27 I I I I I I I I I I I I I I I I I I I Insurance Benefits, (two differing proposed Sections 3 as hand-drafted by the Parties before one ultimately became subject of a tentative agreement "11-17-11"). The disjuncture between representations made by the City's counsel in his "Opening" and the City's formal "Position Statement" regarding bargaining unit members' and current retirees' VEBA is no small matter. The City counsel's facile explanation for Article 13's new appearance should not mislead the Special Magistrate as to what the City actually intends to impose,. See Opening Statement of Counsel for the City, supra (in pertinent part) (emphasis added): MR. NORTON: In the agreement on November we agreed to reopen and talk about that later, which is there's no point in doing now. We're stuck in a one- year deal obviously. So, that re-opener language isn't in there. But yeah, we're asking for the same thing. But see City April 20, 2012 "Position Statemenf' at p. 2 (regarding Article 13, Duration): "It is the City's position that the Magistrate should recommend Article 13 as TA'd on November 17, 2011 (Exhibit C)." The City's "Position" is that the Special Magistrate should recommend a 3-year CBA, effective "from October 1, 2011 to September 30, 2014." See City April 20, 2012 "Position Statement" at Exhibit C thereto, p. 18. 5 The Special Magistrate needs only to look at the City's "Position" with regard to Article 21, Longevity Benefits, Section 4, to determine the City's intentions with regard to 5-------------------- Contrary to the City's posture at the hearing, that it's "asking for the same thing" with regard to Article 18, Insurance Benefits, its "Position " is that the Special Magistrate should recommend an Article 18 from which it "simply proposes to delete the entire section" which established and refers to the VEBA. See id . at p . 2 (emphasis added). If the City genuinely intended to "freeze" the VEBA, and not "to do away with it" as its counsel claimed, the City could have expressed such a thing in its proposed Article 18, Section 3 . Page 7 of 27 I I I I I I I I I I I I I I I I I I I 6 its employees' VEBA. See City April20, 2012 "Position Statement," p. 2; compare id. at Exhibit A thereto, p. 28 and Exhibit C thereto, p. 28 (the City's "Position" at Impasse is to retain the Section 4 "freeze" pertaining to Longevity Benefits, but "is no longer agreeable to the Section 5 added to the Article" providing for a re-opener). Also very much not "the same thing" being advanced by the City for its Police Department employees in this proceeding , separate and apart from the deeper cut in their pay and the elimination of their VEBA, is an additional reduction to its police officers' "Retirement" benefit multiplier, a reduction of what is included in the calculation of "[c]ompensation for pension purposes," the extension of unvested City police officers' work life to "age 59," and the elimination of a "20 and out" option to those same, as yet, unvested officers. Compare City April20, 2012 "Position Statement" at Exhibit C thereto, "Retirement," last two unnumbered pages ("PBG City Proposal to PBA 11.17.11") and "Position Statement" at Exhibit 0 thereto, "Retirement," ("PBG City Proposal to PBA"). 6 As plainly evident from the Retirement proposal by the City 'TA'd" on "11-17-11 ," the retirement benefit multiplier for police officers was to be set at "3.00%" (an agreed reduction from 3.50% ), and in the calculation of police officers' pensions, "up to 300 hours of overtime" were agreed to be included. Additionally, the PBA had agree with the City to reduce officers' maximum retirement benefit to ''75% of average final compensation." See id. at Exhibit C (last two unnumbered pages). The PBA also agreed on "11-17-11" to the City expressly and inexplicably preserving a prerogative to "discontinue participation in Police officers emp l oyed by the City must complete 10 years of service in order to "vest" benefits pursuant to the City of Palm Beach Gardens Police Officers' Retirement Plan . See Testimony of [Sergeant] Robert Odell , T . p. 190, lines 3-6. Page 8 of 27 I I I I I I I I I I I I I I I I I I I Chapter 185, Florida Statutes," which sets standards for police officers additional benefits including, but not limited to the inclusion of up to a maximum of 300 hours of overtime within the definition of "compensation" for pension purposes. 7 ld. By its most recent April 20, 2012 "Position Statemenf' at Impasse, "[t]he benefit multiplier shall be 2. 75%" and "[c]ompensation for pension purposes shall be base pay, excluding all other compensation," along with the extended "normal retirement date ... [to] age 59 with 10 or more years of creditable service" for "all employees with less than 10 years of creditable service under the Plan on the effective date .... " See id. at Exhibit D. PBA Representative, Sgt. Robert Odell's uncontroverted testimony was that of the sworn police officers within the bargaining unit, at least 60% had fewer than 10 years of service with the City and , in consequence, were unvested with regard to the Retirement Plan at the time of the hearing. See Testimony of [Sgt.] Robert Odell, T. p. 190, lines 3- 17. Pointing to each and every PBA witness seated at the hearing table during the proceeding, counter clockwise from his right, Sgt. Odell noted that with only one exception (Police Officer Greg Allen), none had yet completed 10 years of service. See id. at lines 19-20 ("He 's not vested, he's not vested, he's not vested, he is vested."). Last but not least of the City's sudden "Position" changes from its February 15 second declaration of Impasse, to its April 20 "Position Statement," to its changed "Position" and proposal April23, is with regard to the current Article 45, Police Officers' Bill of Rights and Administrative Investigations. See City April20, 2012 "Position Statement," at p. 3 ("The City proposes to delete this Article in its entirety."); but see City Exhibit 3. If 7 Prior to recent legislative changes , 300 hours previously had been the "minimum " numbe r of overtime hours required to be included in the calculations of compensation . Page 9 of 27 I I I I I I I I I I I I I I I I I I I there remained any question within the PBA as to what might be animating the City's very quickly changed Contractual "Position[s]" from February 15 to April20, 2012, its proposals pertaining to Article 45 suggest an austerity unrelated to economics. The PBA has advanced only three (3) proposals in this proceeding; not one of which would occasion any additional costs to the City. And apart from the Artide 13, Duration proposal for a de jure 1-year Agreement extending the de facto status quo to September 30, 2012, none of the PBA proposals would effect any substantive departure from previous Collective Bargaining Agreements. See PBA Exhibits 12, 13, and 14. The PBA's proposal with regard to Article 45 simply renames it "Rights of Bargaining Unit Members Under Investigation" to be consistent with what the Article's Section 1 unambiguously states; that is, that "[t]he City agrees that in the investigation of bargaining unit members' conduct it shall comply with Sections 112.532, 112.533, and 112.534, Florida Statutes, as amended." See PBA Exhibit 20, p. 59 (emphasis added). At the hearing the City first performed a pirouette with City Exhibit 3, and then some sleight of hand. Instead of deleting Article 45 in its entirety, as its April20, 2012 "Position Statement" declared the City intended to do, it purported at the hearing to "make[ ] administrative investigations available to everybody in the bargaining unit including the 25 Communication Officers." See T. p. 98, lines 16 -20 (by Mr. Norton). Mr. Norton's statement is disingenuous and akin to what the mysterious alien book was all about in "The Twilight Zone" episode, "How to Serve Man." The City 's proposed Article 45 strips all of the existing "rights" of any Contractual meaning or application to everybody in the bargaining unit, including the police officers and sergeants. See City Exhibit 3; but see T. p. 98, line 16 through p. 99, line 24 (in pertinent part) (emphasis added): Page 10 of 27 I I I I I I I I I I I I I I I I I I I SPECIAL MAGISTRATE SOLL: [Y]ou're giving the sum and substance of the Bill of Rights the time limits in the contract. MR. NORTON: No. We're not doing anything there. * * * * * * We do not want arbitrators determining whether or not we complied with law. We want them to determine whether we complied with the Collective Bargaining Agreement. SPECIAL MAGISTRATE SOLL: So, the Police Officers bill of Rights, as you were proposing , will not be brought in or stay within the confines of the contract. I don't know which one it is. MR. NORTON: That is correct. What the City has proposed with regard to Article 45, is consistent with an observation Mr. Norton made about the progression of the City's various wage proposals: "Now we're looking at going downhill. ... " See Opening Statement of Counsel for the City, supra at T. p. 85, lines 16 -17. No due process rights would be extended to Communications Officers or their Supervisors by the City's proposed Article 45 . In other words more apt, the City is attempting to accomplish subtraction by addition; that is, its claimed enlargement of the subject provisions ' application to 25 bargaining unit members who are not police officers actually effects the elimination of Contractually incorporated rights to all of the police officers and the 25 Communications Officers. Ultimately, the circumstances these Parties are in fairly may be characterized as having been in consequence of an effort to resolve an initial Impasse in October, 2011 , with a tentative Collective Bargaining Agreement redistributing within a bargaining unit of police officers and non-police officers, Section 185, F .S. monies neither belonging to the Page 11 of 27 I I I I I I I I I I I I I I I I I I I City nor intended for non-police officers. 8 The cash to cover lump sum payments to bargaining unit members were premised upon the State of Florida's imprimatur on certain hasty modifications to the City retirement plan covering only police officers (within and outside of the bargaining unit), subject of a second and separate tentative Agreement. A second Impasse, declared by the City in February, 2012, was occasioned by failed ratification votes in consequence of approximately 60% of the bargaining unit voting "no" to the hastily cobbled together tentative Agreements. While there can be neither evidence nor testimony correlating the PBA's secret ballot votes with any particular circumstance, the fact that approximately 60% of the City's police officers and sergeants have not yet vested their pension benefits may not be a coincidence. When the tentative Agreements failed to be ratified , the City's posture changed: it refused to renegotiate; it declared Impasse; and, it has assumed a "Position" poised to impose provisions which are regressive, at best, and retaliatory at worst. In any event, based upon the foregoing circumstances, and facts and evidence as follows, the PBA submits that an appropriate Recommended Decision in this matter would entail maintenance of the status quo only through the remainder of this fiscal year, and direction to the Parties to reconvene collective bargaining for an Agreement effective Fiscal Year 2012; based upon, and as immediately as possible after, the Palm Beach County Property Appraiser's imminent June 1, 2012 "Estimates of Taxable Value," in 8 Neither Party produced in this proceeding the document by which lump sum payments were to be received by all bargaining unit members out of a portion of monies (in excess of $500,000.00) occasioned by an agreement to reduce police officers' retirement benefits below statutory levels in effect as of March 12, 1999. The reduction of the benefits, and in consequence, the City's required contributions to the Retirement Plan, would result in accumulated excess Chapter 185 revenues of $505,662.00 as of 0 ctober 1 , 2011 . See PBA Exhibit 11 , p. 2 at fourth and fifth bullet-points under "Sum mary of Findings ." Page 12 of 27 I I I I I I I I I I I I I I I I I I I consideration of the much vaunted blossoming (or not) new days for Palm Beach Gardens, and guided by the January 25, 2012 City of Palm Beach Gardens Police Officers ' Pension Fund study done by Gabriel Roeder Smith & Company. See e.g., PBA Exhibits 4, 5, 8, 9, and 11. 9 I. FACTORS TO BE CONSIDERED BY THE SPECIAL MAGISTRATE By the Florida Statute of application in this proceeding, the primary "objective" of the Special Magistrate is to "achiev[e] a prompt, peaceful, and just settlement" of this dispute between the City and its employees. See §447.405, Florida Statutes . In arriving at such recommended settlements, the law provides "Factors" for the Special Magistrate to consider, among other things numbered "(1 )"to "(5)," and with subsections within factor "(4)" alphabetically listed from "(a)" to "(h)." Unless the Florida Legislature's ordering of the subsections governing public employees' disputes such as this was entirely serendipitous, it is not unreasonable to infer from the order of "[t)he factors, among others to be given weight by the special magistrate" appearing in §447.405, F.S., some design. Assuming some design, the statute reflects a prioritized focus; an ordering of the various "factors" to be considered and "given weight by the special magistrate" in order to achieve the Legislature's "objective" which descend as follows (in pertinent part) (emphasis added): 9-------------------- While the PBA believes its proposed changes to Articles 15 and 45 will extend meaningful due process rights to all bargaining unit members, including probationary employees, we are not tone deaf. The City has made clear it will not expand relatively cost-free due process provisions in the Collective Bargaining Agreement even as it further reduces wages and other terms and conditions of employment more readily calculable as "costs." Page 13 of 27 I I I I I I I I I I I I I I I I I I I (1) Comparison of the annual income of . . . the public employees in question with the annual income of ... [similar employees] in the local operati ng area involved . (2) Comparison of the annual income of ... the public employees in question with the annual income of ... public employees in similar [cities] of comparable size within the state . (3) The interest and welfare of the public. (4) Comparison of peculiarities of employment in regard to other trades or professions , specifically with respect to: (a) Hazards of employment. (b) Physical qualifications . (c) Educational qualifications. (d) Intellectual qualifications . (e) Job training and skills. (f) Retirement plans. (g) Sick leave. (h) Job security. (5) Availability of funds. It was not until many years after the enactment of §447.405 , F.S . that the Florida Legislature enacted §447 .4095, F.S., "Financial urgency ;" which exalts that single availability of funds "factor" over all and any others to be considered only "[i ]n the event of a financial urgency." So, in t he absence of a declared "fi nancial urgency" i n the City of Palm Beach Gardens, the path of the statute governing this proceeding suggests the Legislature could not have intended some primacy of the last listed "factor" in §447.405(5), F .S ., "Availability offunds ." It could well be a final consideration . It certainly is notthe first consideration . In any event, and very clearly, fashioning a "just settlement" under §447.405 , F.S. i n this dispute requires a different perspective by the Special Magistrate, than one derived from a public employer simply turning its pockets out. Page 14 of 27 I I I I I I I I I I I I I I I I I I I II. THE BURDEN OF PROOF The City is seeking to reduce all bargaining unit members' compensation, among other things. Before the recent years of pay freezes, bargaining unit members' "salaries" had been based upon a "merit pay plan;" that is, increases in pay, if any, had been premised upon job performance evaluations completed by employees' supervisors. 10 See e.g., Testimony of [Sgt.] Robert Odell, T. p. 172, lines 2-11 (in pertinent part): [W]e were in a merit system where the least you could get if you had a passing evaluation was 3%. From there, if you did better than that, you could get [ ] 3 and a half percent, 4, 4 and a half, 5 or 6% back then. But based on what your supervisor or the Chief of Police and above, the people decided what your work or * * * documented effort could be. By reducing all bargaining unit members' compensation, without reducing their hours of work and/or performance expectations, the City is seeking to uncouple job performance from its employees' compensation; a significant, if not calamitous change to the Agreements that have long governed bargaining unit members' employment. In a proceeding such as this it is reasonable to require the party seeking to modify an existing term and condition of employment to meet the burden to establish that there is a reasonable basis for its proposed change(s). Accordingly, whatever "heavy lifting" is left for the Special Magistrate, the burden of proof squarely is on the City in this case. The City must convince the Special Magistrate that its "demand" to uncouple employees' performance from compensation, and to reduce other wages and terms and conditions of employment outweighs its Police Department's employees' "offer" to accept yet another full year of wage freezes through to the end of this fiscal year. 10 As previously shown , all bargaining unit members' wages have been frozen since September 30, 2010 . See City April23, 2012 "Position Statement," at Exhibit A thereto , p . 41 ; see also City Exhibit 1 , p . 3. Page 15 of 27 I I I I I I ' I I I I I I I I I I I II I According to the statute governing this proceeding, to convince the Special Magistrate that its "Position Statement" among other proposals it made on April 23rd would effect a "just settlement" of this dispute, the City is required to follow the path of the "[f]actors to be considered ," etc. Factors? We ain't got no factors. We don't need no factors. I don't have to show you any stinkin' factors. 11 The City's "Position" and its purported "proof" reflect a gymnastic vau lt over all of §447.405, F.S.'s "factors" in an attempt to stick a landing only on the final one: "Availability of funds." Apart from pages 6 and 7 in City Exhibit 1, the City relieved itself of any effort whatsoever to make "comparison[s]" or to produce some evidence "to be considered by the [S]pecial [M]agistrate" as required by law. The purported "Preliminary 2012 Local Market Data" produced by the City with regard to "Police Officers" and "Police Sergeants" is a thinly veiled manipulation of numbers which , notwithstanding the manipulation, unequivocally shows its police sergeants to be at the very bottom (i.e., last) among those within the Evergreen Solutions study the City commissioned and produced. See City Exhibit 1, p. 7 . The City's production of the Evergreen Solutions study, with its purported "comparators" is curious to the extent that at the hearing , counsel for the City derided the PBA's use of Boca Raton and the Palm Beach County Sheriffs Office as PBA comparators. Yet, the "City of Boca Raton" and the "Palm Beach County Sherriffs (sic) Office" were among the City study's comparators, along with PBA comparators "Town of Paraphrased from the classic cl ip from "Treasure of the Sierra Madre," the 1948 film directed by John Huston . Page 16 of 27 I I I I I I I I I I I I I I I I I II I Jupiter" and "Village of North Palm Beach." See City Exhibit 1, at pp. 6 and 7; see PBA Comparators; but see T. p. 79, line 24 through p. 80, line 2 (in pertinent part) (emphasis added): [MR. NORTON:] If you look at the wage increases, of course thev compare us to Boca and the Sheriff, which are the two highest paying Law Enforcement agencies that I know, and I represent them both. In the absence of any step pay plan, and with compensation uncoupled from performance notwithstanding the "merit pay" nomenclature (and with "Longevity Benefits" frozen), the City study's use of "Midpoint" and "Maximum" wages for police officers and police sergeants is misleading; there is no way to move up in pay or otherwise to approximate such arbitrary figures. 12 Similarly, the City's production of its purported "Employee Salary Increases," etc. is misleading. Purporting to show a history of "1 0.00%" increases, among other things, the PBA produced the uncontroverted testimony of a supervisor, and PBA Representative with personal knowledge that no such things occurred . See Testimony of [Sgt.] Robert Odell, supra at T. p. 172, lines 2-24 (in pertinent part): I don't know how they came up with 10% .... [l]n October you would get * * * a salary adjustment that was based off [the] ECI .... And that ECI, it came out every year. And that's something that we had agreed to do. It's never reached 4%. I don't know how they got 10%. The City's study "evidence " also ignored entirely its Communications Officers and their Supervisors, notwithstanding the fact that the Sheriff's Office and the Village of North Palm Beach employ dispatchers/communications personnel. See City Exhibit 1,.supra ; but see PBA Comparator 5 , Village of North Palm Beach ; see also PBA Comparator 2 , City of Greenacres (bargaining unit includes "public safety dispatchers "). Page 17 of 27 I I I I I I II I I I I I I I I I I I I Ultimately, the City did not produce any evidence material to 4 of the 5 factors (including the sub-factors listed under §447.405(4), F.S.). The City shrank from the statute's requisite "comparison[s]," failed to controvert the testimony of PBA witnesses, and otherwise all but thumbed its nose at the purpose of the proceedings before the Special Magistrate. Seated appropriately with the dais upon which the City's legislative body sits behind them, and confident in the strength the statute gives the Council persons who likely will occupy that dais and impose the City's "Position," clearly the City felt no need to address the "stinkin' factors." Ill. THE SPECIAL MAGISTRATE SHOULD ACCORD NO WEIGHT TO THE CITY'S "EVIDENCE" REGARDING THE AVAILABILITY OF FUNDS The City's "Position" in this proceeding is premised entirely upon the alleged burden of its police officers' retirement plan. See e.g., T . p. 94, line 11 through p. 95, line 12 (in pertinent part): "[l]f we ride the status quo pony for the end of the trail here for five years, the City will be bankrupt." See also City Exhibit 1, p. 10. Portraying the commitment the City has made to its police officers' pensions as a giant gorilla reduces the promises the City made to a cartoon. Yet, the evidence produced by the PBA in these proceedings suggests the City's elected officials and appointed managers are cartoons of themselves. While the City chose not to produce any 5-Year Plan and, oddly, did not produce its own Comprehensive Annual Financial Report For the Fiscal Year Ended September 30, 2011 ("CAFR"), the PBA produced portions of the CAFR. See PBA Exhibit 17. The City's CAFR proudly declares that "[o]ver the last nine years, the City has been able to increase its unassigned fund balance," currently at "$20.9 million;" very nearly double what sound economic management advises. See PBA Exhibit 17 , p. 19 (emphasis Page 18 of 27 I I I I I I I I I I I I I I I I I I I added). During six (6) of the last nine years the City steadily reduced its millage. I d. As the City's CAFR clearly shows, the current fiscal year "Total City Millage" rate remains lower than it was in 2002, and its "Debt Service Millage" is less than half what it was in 2002! See id. at p. 122. And, notwithstanding the current City millage rate at a pre-2002 rate, the record amount of "Total Collections to Date" of property taxes is just short of double what it was in 2002! ld. at p. 125. Clearly, the circumstances the City complains of are not entirely the fault of its Police Officers' Retirement Plan . While the City rolled out records reflecting "30 out of 106 Police Officers and Sergeants earned over $100,00," etc., that list included at least one officer who already had retired , and not less than nine (9) in the deferred retirement option program ("DROP") with regard to whom the City is relieved entirely from making pension contributions; albeit, the City's only witness claimed to be unfamiliar with those facts. See Testimony of Allan Owens, T . p. 128, line 10 through p. 129, line 5 (in pertinent part): Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Okay. Let's turn two pages beyond that to Page 5 of that exhibit [City Exhibit 1]? Um-hmm . Robert Odell , he's at the top of the list. He's in the drop, isn't he? Yes, he is. The City didn't put any money into his pension in consequence of being in the drop, does it? No, it does not. Steve Fee, he's in the drop too, isn't he? I don't know the names of everybody that's in the drop, sir. [D]o you know that there were only 9 on this entire list of Officers who are not in the drop? Are you aware of that? No, I did not know that. That would make a difference, wouldn't it, in contributions to the pension? It does make a difference .... Page 19 of 27 I I I I I I I I I I. I I I I I I I It I The future costs to the City and its citizens of their police officers' pension plan is not something about which the PBA is unconcerned. Many of the changes the PBA was willing to accept to the Police Officers' Retirement Plan on November 17, 2011 may be inevitable; and there can be no dispute that changes will effect significant savings for the City. See PBA Exhibit 11. What the PBA was prepared to accept would have decreased the City's required contribution to the fund "by 9.86%," would decrease the Plan's unfunded accrued liability "by $8.2 million" and, in consequence, would raise the Plan's funded ratio significantly ("to 66.8% from 58.8%"). ki. at p. 2. 13 Sometime after the actuarial report was produced, the City's Pension Board called a meeting to discuss the status of the pension and the effects of the proposed changes. The City's Chief Financial Officer, and its only witness in this proceeding did recall being invited to the meeting; and he recalled, also, that he chose not to go. See Testimony of Allan Owens, T . p. 151, line 24 through p. 152, line 17. It was during the testimony of the Finance Administrator for the City of Palm Beach Gardens, Mr. Owens, that some of the differences in records produced by the City in this proceeding, as opposed to those the City prepared for others' consumption, was brought into stark relief. For example, when the City's "5 Year Forecast of Revenues, Expenses, and Unassigned Reserves" encapsulated within one (1) page at the very end of City The City's Chief Financial Officer claimed to have been unaware of the actuarial study addressing the PBA's concessions regarding benefits under the City's Police Officer's Retirement Plan until only three (3) days before the hearing in this matter; albeit, his name appears as an addressee at the top of pages 2 and 3 of the subject report. See Testimony of Allan Owens, T . p. 151, lines 2-10; but see PBA Exhibit 11, pp. 2 -3. PBA witness Odell testified that at or about the time the study was generated (January 25, 2012) it was e-m ailed to Mr. Owens and it occasioned "a big discussion " with him. See Testimony of [Sgt.] Robert Odell, T . p. 178,1ine 18 through p . 179,1ine2, and p. 185 ,1ines 3-21 (in pertinent part) (emphasis added): "* * *I don't know why Mr. Owens doesn't recall. * * * We discussed almost everything within here because this is what came back from the actuary from the pension." Page 20 of 27 I I I I I I I I I I I I I I I I I I I Exhibit 1, herein, was compared to an April11, 2012 "State of the City City (sic) of Palm Beach Gardens" PowerPoint also prepared by the City, Mr. Owens conceded that much of what is currently making the City's economy more robust than other municipalities within Palm Beach County could not have appeared within the Budget for this fiscal year. See id. at T . p. 134, line 7 through p. line 23 (in pertinent part) (emphasis added): Q. A. Q. A. Q. A. Q. A. Q. A. Well, this April 11, 201 [2], PBA Exhibit 5, this power point that was prepared by the City, is it your testimony that each and every one of these projects * * * were otherwise in the projected budget for the City when the parties sat down last spring in anticipation of the October 1, 2011 contract; is that your testimony? * * * We sit down with the Planning Department every year around this time, which is what we just finished doing. * * * So, we sit down with them and whatever year they think that the property permit will be pulled , we put it out in another, the next year out. * * * [ ] If I understand your testimony, around the spring you begin a budget projection process, correct? Yes. Around this time of year you said? Yes. So, last year in 2011 sometime in April maybe going into May you projected a budget? Yes. [ ] And my question again is was each and every project that appears in this power point dated April 11, 2012, was each and every one of them in the projected budget? * * * When you say in the budget, not in this year's budget. Page 21 of 27 I I I I I I I I I I I I I I I I I I I That the "State of the City [ ] of Palm Beach Gardens" has been improving in the last year, and is projected to continue improving considerably in readily measurable ways, cannot be disputed. See e.g., PBA Exhibit 8 (Palm Beach County Property Appraiser's June 11, 2011 "2011 Estimates of Taxable Value," and October 12, 2011 "2011 Final Taxable Value" figures for every municipality in Palm Beach County). Based upon the testimony of the City's only witness, its "Chief Financial Officer," what in very large part informed the City's projected budget for the fiscal year subject of these proceedings were dour taxable value figures from October, 2010; which resonated into the June, 2011 "Estimates," etc. inarguably dour, also. Yet, the October, 2011 "Final" figures reflect that the City's actual "hit" was very nearly half as "bad" as estimated. See PBA Exhibit 8. Further, the "Net New Construction (07/01/10)" figures appearing in the "2011 Estimates," etc. were second only to Boca Raton back then; which, according to the City's witness, Mr. Owens, could not possibly have included any of the projects vaunted in the City's April11, 2012 PowerPoint (PBA Exhibit 5). While the City of Palm Beach Gardens is not yet back in "the black," it cannot be disputed that things rapidly are getting better uniquely for the City, precisely at the moment it is poised to rna ke things rapidly worse for its police officers, sergeants, communications operators and their supervisors. See PBA Exhibit 9 (The Palm Beach Post, Friday, March 16, 2012, page 6A) (in pertinent part) (emphasis added): "Mayor David Levy said he believes the recession is over in Palm Beach Gardens .... " Page 22 of 27 I I I I I I I .I . I I I I I I I I I I IV. THE RECESSION IS OVER. THE DEPRESSION HAS B EG UN Choosing to address those comparisons among the "factors" the relevant statute requires in these proceedings, the PBA presented four (4) current bargaining unit members to the Special Magistrate. Three (3) police officers and one (1) sergeant: Robert Wilson, a police officer in his 91h year of service to the City; Gregory Allen, a police officer with 13 years of service to the City; Randy Buntin, with 16 total years of law enforcement experience, a sergeant in his second year of service to the City; and, Gregory Mull, a police officer with 6% years of service to the City. See T. p. 52, line 21 through p. 75, line 17. 14 On the Boca Raton CBA's "Step and Grade Schedule FY 2011/2012" (PBA Comparator 1, at p. 76), Officer Wilson's 9 years of service is earning him less than a 41h year Boca Raton police officer earns. On the same pay schedule, Officer Gregory Allen's 13 years of service is earning him what a 61h year Boca Raton police officer earns. Sgt. Buntin is being paid by the City less than what a 3rd year Boca Raton police officer earns; his annual income is approximately $25,000 below the first "Step" for a Boca Raton sergeant. Officer Gregory Mull 's 6% years of service earns him from the City just under what a Boca Raton police officer earns in his or her first year on the job. On the Palm Beach County Sheriff's Office "Salary Plan" (PBA Comparator 7, at pp.41 -43), the PBA's witnesses did not fare much better. Officer Wilson's 9-year For purposes of economy, the PBA will not here reproduce portions of the Transcript from its witnesses' testimony. All of the testimony consumes only 23 pages and the PBA respectfully requests the Special Magistrate reacquaint him self with the witnesses' years of experience, their educational qualifications, their job training and skills, and their annual incomes; all of which was adduced without any cross examination by the City whatsoever. Page 23 of 27 I I I I I I I I . I I I I I I I I I . I II earnings from the City equal what a Sheriffs deputy earns after completing 5 years with PBSO. Officer Allen's 13-year earnings from the City equal what a Sheriffs deputy earns in his or her gth year. As he found himself entirely off the Boca Raton sergeants' pay step and grade schedule, Palm Beach Gardens Sergeant Buntin's earning from the City are off the PBSO sergeants' chart, also; he currently earns approximately $20,000/year less than a brand new PBSO sergeant. Palm Beach Gardens Sergeant Buntin's earnings from the City actually are less than what a Sheriff's deputy earns after only 5 years of service with PBSO. To the extent the City is proposing 5% reductions in all bargaining unit members' wages, each and every one of the PBA witnesses' earnings will move down not less than one full "step" in those agencies having "Step" pay plans; moving even further backwards among the PBA's Comparators. Yet, with the exception only of the Town of Jupiter, every law enforcement agency comprising the PBA's seven (7) comparators provided wage increases to their bargaining units members effective October 1, 2011 ; albeit, Jupiter provided up to 4% lump sum payments to its bargaining unit members effective October 1, 2010 (while the City of Palm Beach Gardens bargaining unit members' wages still were frozen). See PBA Comparators 1, 2, 3, 4, 5, and 7; see PBA Comparator 6, at p. 41, respectively. With the exceptions only of Boca Raton and Jupiter, every municipality used as a comparator by the PBA suffered greater property tax revenue declines than the City of Palm Beach Gardens. See PBA Exhibit 8, at "2011 Final Taxable Value, October 12, 2011 ". Based upon the evidence adduced in this proceeding, and perhaps only with the exception of Boca Raton, the City of Palm Beach Gardens can be expected to do better Page 24 of 27 I I I I I I I I I I I I I I I I I I I with regard to property tax revenues in 2012 than any other municipality in the local operating area. It is the state of the City, financially, that caused Palm Beach Gardens Councilman Joe Russo to observe: 'We have a higher bond rating than the federal government." See PBA Exhibit 4. As Palm Beach Gardens Mayor Levy declared: "The recession is over in Palm Beach Gardens." On the day after the Special Magistrate is expected to issue his "Recommended Decision" in this dispute, the Palm Beach County Property Appraiser will publish the "2012 Estimates of Taxable Value." See PBA Exhibit 8 ("June 1, 2011"). The imminent figures likely will show the Mayor's declaration is accurate. But for the Palm Beach Gardens employees subject of this proceeding, the depression will have just begun. V. CONCLUSION The PBA has accepted, and proposed a continuation of the current "freezes" to all of its bargaining unit members' Contractual pay and benefits incurring costs to the City. The PBA has proposed modifications to the subject Collective Bargaining Agreement that would extend to probationary bargaining unit members access to the collectively bargained Article 15, Grievance and Arbitration Procedure only for terminations that otherwise would be "for cause" (and a modification in effect shifting to the PBA all of an arbitrators' fees and costs in the event that a Grievance is determined without merit). See PBA Exhibit 13. The PBA also has proposed, for all practical purposes, only a name change to Article 45; albeit, it has removed statutory references and substituted the "rights" expressly. See PBA Exhibit 14. Page 25 of 27 I I I I I I I I I I I I I I I I I .I I It is the City that is proposing changes to the terms and conditions of a Collective BargainingAgreementthat has governed its Police Department bargaining unit employees for the last, now, nearly four (4) years. Accordingly, as aforementioned, the burden of proof to sustain the changes proposed by the City properly is upon the City. The City produced no comparables, addressed none of the ''factors to be considered by the special magistrate " apart from a purported "[un]availabilityoffunds ," and introduced no current calculations of costs. The City 's only witness, additionally, was shown to be less than credible, and by his own admission chose not to attend a meeting called by the City 's Retirement Board to review and discuss certain actuarial findings. Further, the City has been shown to be portraying its financial state of affa irs in very different terms in forums elsewhere, apart from these proceedings. The records produced by the PBA show that the City's police officers, sergeants, communications operators and their supervisors suffer considerably by comparison in the local operating area. By the City's failure to show in a forthright way the purported "[un]availabilty of funds," it has conceded it is willing to accept its employees ' further suffering. On this record , therefore, the PBA proposals subject of these proceedings are modest and reasonable; the City's demands in response cannot be considered a fair or "just settlement." For all of the foregoing reasons, a ·~ust settlemenf' of this dispute would provide nothing less than the following: the status quo with regard to all "salaries" and each and every collectively bargained term and condition of bargaining unit members currently in effect, only through September 30 , 2012, with the exception of Articles 15 and 45; a Collective Bargaining Agreement of one (1) year's "Duration" as proposed by the PBA (see Page 26 of 27 II I I I I I I I I I PBA Exhibit 12); the modifications to non-monetary provisions subject of the PBA's proposals with regard to Articles 15 and 45 (see PBA Exhibits 13 and 14); and, direction to the Parties to convene negotiations beginning June 1, 2012, towards a successor Collective Bargaining Agreement. Respectfully submitted, ' Gary Lippm n, Gen ral Counsel Florida Bar No. 79121 Palm Beach County PBA 2100 N. Florida Mango Road West Palm Beach, FL 33409 Phone: (561) 689-3745 E-mail: garv@pbcpba.org CERTIFICATE OF SERVICE I hereby certify the foregoing Post Impasse Brief of the PBA has been provided I this 16th day of May, 2012 by email transmission in WordPerfect™ format and regular U.S. I I I I I I I I Mail to the following: Special Magistrate Martin A. Soli, Esquire 3530 Mystic Pointe Drive, Suite 401 Miami, Florida 33180 Lanmar@Atlanticbb.net Robert L. Norton, Esquire ALLEN, NORTON & BLUE, PA 121 Majorca Avenue, Suite 300 Coral Gables, FL 33134 morton an Gary Li man, eneral Counsel Florida Bar No.: 0079121 Palm Beach County PBA 2100 North Florida Mango Road West Palm Beach, FL 33409 Phone:561 /689-3 7 45 Email: Gary@pbcpba.org Page 27 of27 CITY OF PALM BEACH GARDENS PALM BEACH COUNTY, FLORIDA PROCLAMATION WHEREAS, parks and recreation programs enhance our quality of life by contributing to a healthy lifestyle, increasing communication skills, building self esteem, teaching life skills and providing places for enjoyment; and WHEREAS, parks and recreation programs boost the economy, enhance property values, attract new business, increase tourism and reduce crime,· and WHEREAS, recreation builds family unity, strengthens neighborhood involvement, offers opportunity for social interaction, enhances education, develops creativity, and promotes cultural diversity; and WHEREAS, each year since 1985, Americans have celebrated national Park and Recreation Month during the month of July to recognize the importance of parks and recreation which provides affordable, family-friendly activities; and WHEREAS, Florida recognizes the benefits derived from quality public and private recreation and park resources at the local and state levels; and WHEREAS, the National Recreation and Park Association and the Florida Recreation and Park Association designated July as Parks and Recreation Month; NOW, THEREFORE, I, David Levy, Mayor of the City of Palm Beach Gardens, do hereby extend greetings and best wishes to all observing July 2012 as Parks and Recreation Month. ATTEST: Pat~ City Clerk IN WITNESS WHEREOF, I hove Mreunto _, "'7 hond ond CtuUUtd tlw s~ol of tM City of Palm &och Gorthn~~, Florida, to bt> ofrasnJ thill IZ"' Day of July, in t~ year TUIO ThoUlra.nd ond 7'1Hlve. tlc?~ ~ David Levy, Mayor