January 9, 2007 - lawconger.com lette… · Mayor Jerry Sanders . Jan Goldsmith, City Attorney ....

LAW OFFICE OF MICHAEL A. CONGER Post Office Box 9374

16236 San Dieguito Road, Suite 4-14 Rancho Santa Fe, CA 92067

(858) 759-0200 (858) 759-1906

web site: www.lawconger.com email: [email protected]

Michael A. Conger Civil Litigation Employment Law

Business Law Wrongfnl Death

Serious Injury

December 8, 2008

Via Fax and U.S. Mail

Mayor Jerry Sanders Jan Goldsmith, City Attorney City of San Diego Office of the City Attorney City Administration Building City of San Diego 202 C Street, 11 th Floor 1200 Third Avenue, Suite 1620 San Diego, CA 92101 San Diego, CA 92101 (Fax No. (619) 236-7228) (Fax No. (619) 236-7215)

Re: 2007 Earnings Code Document Changes

Dear Mayor Sanders and Mr. Goldsmith:

I represent several active San Diego Police Officers assigned to the Canine and Motorcycle units. The purpose of this letter is to request that the City of San Diego immediately repeal two of the changes it made to the Earnings Code Document ("ECD") on January 9, 2007.

As you are aware, the ECD is referred to in San Diego Municipal Code section 24.0103. It lists pay classes included in "Base Compensation," which is one factor used to determine employees' retirement allowances and contributions to fund them. For your reference, I have enclosed a copy of this document as Exhibit 1.

The two ECD changes which should be repealed are for "Canine Care Pay" and "Motorcycle Care Pay." The discussion of the City's reason for these changes is set forth on pages 8 and 18 of Exhibit 1. In its explanation, the City states that "Canine Care Pay and Motorcycle Care Pay mistakenly were listed in prior Earnings Codes Documents as earnings codes included in Base Compensation." (Exh. 1, pp. 8, 18.)

As a matter of historical fact, the changes to the ECD occurred a few days before the

Mayor Jerry Sanders Jan Goldsmith, City Attorney December 8, 2008 Page 2

City filed its opening appellate brief in Sloan, et al. v. City ofSan Diego, Case No. D049158. Notably, in Sloan the Court of Appeal, like the trial court, soundly rejected the City's contention that inclusion of Canine Care Pay and Motorcycle Care Pay was a "mistake." The Court stated: "the [City's] statement that the prior designation of canine care pay was a 'mistake' is inconsistent with the evidence, and appears to be solely an attempt to overturn the trial court's factual finding to achieve a favorable result for the City." (Exhibit 2, Opinion dated January 29, 2008, p. 17.)

There are numerous additional reasons why the 2007 ECD changes to Canine Care Pay and Motorcycle Care Pay will not survive a legal challenge. First, the legal doctrine of collateral estoppel precludes the City from relitigating the issue of "mistake."

Second, the inclusion of Canine Care Pay and Motorcycle Care Pay in retirement base compensation was a benefit expressly negotiated in labor negotiations with the City. It is therefore a vested contractual right that cannot constitutionally be impaired.

"[B]oth the federal and state contract clauses protect the vested pension rights of public officers and employees from umeasonable impairment." (California Ass 'n of Professional Scientists v. Schwarzenegger (2006) 137 Cal.App.4th 371, 383.) "While some jurisdictions view public employees' retirement rights as a gratuity, California is firmly committed to the proposition that these rights are contractual; that they are 'vested' in the sense that the lawmakers' power to alter them after they have been earned is quite limited." (Ibid.) "By entering public service an employee obtains a vested contractual right to earn a pension on terms substantially equivalent to those then offered by the employer." (Ibid.)

"A long line of California decisions has settled the principles applicable to [this situation]. A public employee's pension constitutes an element of compensation, and a vested contractual right to pension benefits accrues upon acceptance of employment. Such pension right may not be destroyed, once vested, without impairing a contractual obligation of the employing public entity." (Betts v. Board ofAdministration (1978) 21 Ca1.3d 859, 863, italics added. ')

In Maffei v. Sacramento County Employees Retirement System (2002) 103 Cal.App.4th 993, 999-1000, the court stated:

"An employee's vested contractual pension rights may be modified prior to retirement for the purpose of keeping a pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the


At trial in the Sloan case, abundant evidence was introduced showing that Canine Care Pay was expressly negotiated to be included in retirement base compensation. For example, inclusion of Canine Care Pay and Motorcycle Care Pay in retirement base earnings is listed in numerous pre-2007 earnings code documents as "negotiated specialty add-ons." And, as explained in several pre-2007 ECDs, "[e]arnings codes with effective dates reflect the date the meet and confer negotiated items were effective or to comply with Council Salary Ordinance and resolutions." Because Canine Care Pay and Motorcycle Care Pay were expressly negotiated part of the police officers' retirement base compensation, it cannot be unilaterally taken from them by the City. As the City's payroll director, Kyle Elser, correctly conceded during the Sloan trial, City staff "do[es] not have the power to take away vested benefits."

Third, any change to the terms and conditions of Canine Care Pay and Motorcycle Care Pay required the City to "meet and confer" pursuant to the Meyer-Milias- Brown Act (Gov. Code, § 3505), and there is no evidence this occurred before the City attempted to unilaterally remove Canine Care Pay and Motorcycle Care Pay from retirement base compensation effective January 9, 2007. (Building Material & Construction Teamsters J

Union v. Farrell (1986) 41 Ca1.3d 651, 659; San Francisco Fire Fighters Local 798 v. Board of Supervisors (1992) 3 Cal.AppAth 1482, 1490.) '''The duty to bargain requires the public agency to refrain from making unilateral changes in employees' wages and working conditions until the employer and employee association have bargained to impasse .... ,,, (City ofFresno v. People ex reI. Fresno Firefighters, IAFF Local 753 (1999) 71 Cal.AppAth 82, 99, quoting Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Ca1.4th 525, 537.) Because inclusion of Canine Care Pay and Motorcycle Care Pay in retirement base earnings were "negotiated specialty add-ons," the City is precluded from taking them away without negotiation.

system . . .. Such modifications must be reasonable . . . [and to] be sustained as reasonable, alterations of employees' pension rights must [1] bear some material relation to the theory of a pension system and its successful operation, and [2] changes in a pension plan which will result in disadvantage to employees should be accompanied with comparable new advantages."

However, here there is no evidence that the reduction of the police officer pensions by the City by excluding Canine Care Pay and Motorcycle Care Pay has anything to do with the successful operation of its pension system, or that the disadvantage to plaintiffs by excluding these pay items will be accompanied by a comparable new advantage.


Fourth, City Charter section 143.1 states "[n]o ordinance amending the retirement system which affects the benefits of any employee under such retirement system shall be adopted without the approval of a majority vote of the members of said system." If, as the City apparently contends, Ordinance 0-19384, adopted on May 31, 2005, or Ordinance 019491, adopted May 8, 2006 somehow retroactively deleted Canine Care Pay and Motorcycle Care Pay from retirement base compensation in the January 9, 20072 earnings code document, it violates the City Charter because there was no vote by the members of the retirement system.

Fifth, the January 9, 2007 ECD had nothing to do with the City's budget adoption process and therefore is not authorized. San Diego Municipal Code section 24.0103 states: "The Earnings Codes Document shall be amended annually, as necessary to reflect any changes or additions made during the City's budget adoption process." (Italics added.) Mr. Tomanek's January 9, 2007 memorandum (Exh. 1, p. 1) states: "Based on the results of the meet and confer process with the employee labor unions the last time they met to the present[,] the attached earnings new codes have become effective and are included in the new Memorandum of Understandings." Because there were no "changes or additions," regarding Canine Care Payor Motorcycle Care Pay in the relevant MOUs or salary ordinances, there was no authority under San Diego Municipal Code section 24.0103 to amend the earnings code document.

We are aware that informal discussion with the San Diego Police Officers Association and the City (Scott Chadwick, Judy von Kalinowski, Bill Gersten) have been ongoing for several weeks, and therefore the City has had ample time to correct its error. Thus, we will allow the City 30 days to confirm it will repeal the changes to Canine Care Pay and Motorcycle Care Pay as set forth in the January 9, 2007 ECD, at pages 8 and 18. If the City does not confirm its intent to do so within this deadline, litigation will be commenced. If litigation becomes necessary, the plaintiffs will seek attorney fees under numerous statutory provisions.

2 Neither Canine Care Pay nor Motorcycle Care Pay are mentioned in Ordinance 019384 or Ordinance 0-19491.


Please let me know if you would like to meet to discuss this issue or if we could supply any additional information.

MAC/pbm Enclosures cc: Clients (with enclosures)

Richard H. Benes, Esq. (with enclosures)

EXHIBIT 1

THE CITY OF SAN DIEGO

In accordance with the San Diego Municipal Code, Section 24.0103, we have compiled a listing of the CAPPS earnings codes included in Retirement Base Compensation (Exhibit A). Based on the results of the meet and confer process with the employee labor unions from the last time they met to the present the attached new earnings codes have become effective and are included in the new Memorandum of Understandings. Some earnings codes were also added to streamline the payroll administrative process, or reclassified based upon our review. The new earnings codes are reflected with an effective date. In addition, attached is a listing of the earnings codes not included in Retirement Base Compensation (Exhibit B).

Please review the attached exhibits to ensure you are in agreement with the determinations of whether the earnings codes should be included (Exhibit A) or not incfuded (Exhibit B) in Retirement Base Compensation. Sign and return the attached acknowledgement to me by Wednesday, January 31,2007.

If you have any questions, please contact me at Ext. 65566, or Kyle Elser, Payroll Manager, at Ext. 55805.

Lawrence Tomanek Assistant City Auditor and Comptroller

Office of the Auditor and Comptroller 202 CStreet· San Diego, CA 92101

Tel (619) 236·6310 Fax (6J9) 533·3998

DATE:

TO:

FROM:

SUBJECT:

OFFiCE OF THE CITY AUDITOR AND COMPTROLLER

MEMORANDUM

January 9, 2007

Ronne Froman, Chief Operating Officer John Torell, City Auditor & Comptroller Rich Snapper, Personnel Director David Weseoe, Retirement Administrator

Lawrence Tomanek, Assistant City Auditor and Comptroller

Annual Listing of Earnings Codes Included In and Excluded From Retirement Base Compensation to be filed with FY07 Salary Ordinance.

CITY OF SAN DIEGO ANNUAL LISTING OF EARNINGS CODES INCLUDED IN AND EXCLUDED FROM

RETIREMENT BASE COMPENSATION

ACKNOWLEDGEMENT OF EARNING CODES

I have reviewed the Annual Listing of Earnings Codes Included in Retirement Base Compensation, as of July 1. 2006, and:

Agree with the earnings codes included in (Exhibit A) and excluded from (Exhibit B) the retirement base compensation.

o Disagree with the earnings codes included in (Exhibit A) and excluded from (Exhibit B) the retirement base compensation. I have indicated on the Exhibits, which r am returning to you, which earnings codes J do not agree with.

/-/O-O{ Name Date

Please return to Lawrence Tomanek, Assrstant City Auditor and ComptroHer, at MS 6A. Thank you.

J~~tb.h1J;:J;J~rrJff!. ~~~~ ~. ~ti:»~1 ~~~~;t;; ~ ~~ ~~ ~} ~ Si)<:eM" .

~~f},-. }- jJ -n




I have reviewed the Annual Listing of Earnings Codes Included in Retirement Base Compensation, as of July 1, 2006, and:

)( Agree with the earnings codes included in (Exhibit A) and excluded from (Exhibit B) the retirement base compensation.

Disagree with the earnings codes included in (Exhibit A) and excluded from (Exhibit B) the retirement base compensation. I have indicated on the Exhibits, which I am returning to you, which earnings codes I do not agree with.

/-/1-01

Pleas eturn to Lawrence Tomanek, Assistant City Auditor and Comptroller, at MS 6A. Thank you.

CITY OF SAN DIEGO

MEMORANDUM

DATE: January 25, 2007

TO: Ronne Froman, Chief Operating Officer

FROM: Rich Snapper, Personnel Director

SUBJECT: Add on Codes

The Personnel Department staffhas reviewed the Earning Code report dated January 9, 2007 issued by the City Auditor and Comptroller.

Our review indicates that the codes are properly categorized as included or excluded from Retirement Base Compensation.

Based upon the existing approval of the City Auditor and our review, I would advise you that the report is appropriate for your concurrent signature.

gt!k~P~ Personnel Director

4




I have reviewed the Annual Listing of Earnings Codes Included in Retirement Base Compensation, as of July 1,2006, and:

~ Agree with the earnings codes included in (Exhibit A) and excluded from (Exhibit ~ B) the retirement base compensation.

Q Disagree with the earnings codes included in (Exhibit A) and excluded from (Exhibit B) the retirement base compensation. I have indicated on the Exhibits, which I am returning to you, which earnings codes I do not agree with.

Please return to Lawrence Tomanek, Assistant City Auditor and Comptroller, at MS 6A. Thank you.

CITY OF SAN DIEGO ANNUAL LISTING OF EARNINGS CODes INCL.UDED IN AND EXCI.UDED FROM


ACKNOWLEDGEMENT OF EARNING COOES

I have reviewed the Annual Listing of Earnings Codes Included in Retirement Base Compensation, as of JUly 1, 2006, and:

~Agree with the earnings codes included in (Exhibit A) and excluded from (Exhibit B) the retirement base compensation. .

Oi Disagree with the earnings codes included in (Exhibit A) and excluded from (Exhibit B) the retirement base compensation. I have indicated on the Exhibits, which I am returning to you, which earnings codes I do not agree with.

1!tM441 FM~ .)-r~v~ Name Date

Please return to Lawrence Tomanek, Assistant City Auditor and Comptroller, at MS 6A. Thank you.

CITY OF SAN DIEGO ANNUAL LISTING OF EARNiNGS CODES INCLUDED IN AND EXCLUDED FROM


SUMMARY OF EARNING CODE CHANGES

Summary of new earnings codes that were added to Exhibit A <'ncluded) are:

CODE EARNING CODE TITLE EFFECTIVE DATE

1MC5 Multiple Certification Pay - Factor of Base Pay 03/07/2006

Summary of new earning codes that were added to Exhibit B (Excluded) are:

CODE EARNING CODE TITLE EFFECTIVE DATE

ABGW Bid to Goal Pay Water 06/01/2006 ABOT Boating Uniform MEA - Lifeguards· 07/01/2006

,

ADCA DCAA DROP 3.2% Pay Reduction 07/01/2006

~ AFEM Female Uniform Allowance MEA lifeQuard 07/01/2006 AHEl Helicopter Uniform Allowance MEA LifeQuard 07/01/2006 AHVY Heavy Rescue Uniform Local 145 07/01/2006 AMST MAST Uniform Local 145 07/01/2006 APCR Paramedic Certification Cost Reimbursement 03/11/2006 APFW Pay for Performance Water 06/0112006 ASTR STAR Uniform Allowance Local 145 07/01/2006 AUSR US&R Uniform Allowance Local 145 07/01/2006 1AA4 Automobile Allowance - $400 02/25/2006

II 1AOl Air Operations Pay - Temporary 07J01/2006 1MSY MAST Pay - Temporary local 145 07101/2006


. RETIREMENT BASE COMPENSATION

SUMMARY OF EARNING CODE CHANGES (CONTINUED)

The following Earning Codes have been Reclassified from Included (Exhibit A) to Excluded (Exhibit B) based upon our review:

CODE EARNING CODE TITLE EFFECTIVE II DATE

AILF Industrial Leave - FIT Adfustment AILS AVLT 1K9A 1 1MCC 1 9EML 2 9EMM 2

Industrial Leave - SIT Adjustment Voluntarv Time Off Spread Gross Adjust Canine Care Pay Motorcycle Care Pay Leave Without Pay - Extended Militarv Leave Leave Without Pay - Extended Militarv Leave 2001

Footnotes:

[1J Canine Care Pay (1 K9A} and Motorcycle Care Pay (1 MCC) are listed in Exhibit 8 as earnings codes excluded from Retirement Base Compensation. Both Canine Care Pay and Motorcycle Care Pay are classified as overtime pay, and as such are excluded from Base Compensation pursuant to San Diego Municipal Code Section 24.0103. Although excluded from Base Compensation by law, Canine Care Pay and Motorcycle Care Pay mistakenly were listed in prior Earnings Codes Documents as earnings codes included within Base Compensation. This revised annual listing of earnings codes reflects the correct classification of the Canine Care Pay and Motorcycle Care Pay earnings codes, which classification shall apply retroactively to the origination of these earnings codes.

[2] Leave Without Pay-Extended Military Leave (9EML) and Leave Without Pay-Extended Military Leave 2001 (9EMM} were reclassified to EXhibit B because there are no earning associated with these codes. However. employees are allowed to purchase service credit for the time they are on Extended Military Leave Without Pay

EXHIBIT A EARNINGS CODES INCLUDED IN RETIREMENT BASE EARNINGS

As of 710112006 or Later

EARNING EARNING CODE TITLE EFFECTlVE CODE DATE

: (New Codes) 1ACH Fire Accelerant Canine Handler 1ACT Asbestos Containment Team - Local 127 1AC1 Asbestos Containment Team - MEA 1ADM Administrative AssiQnment Pay 1AFS Airport Fire Station Transfer Desk 1AOP Air Operations Pay - local 145 1APP Advanced Post Certificate 1APT Annual Pump Testina Station 28 1AP1 Advance Post Cert. Pay - POi 1ARP Traffic Accident Reconstruction Certification Pay iASC Master ASE Auto I Light Truck Certification 1AST Air Support Trainer Pay 1AS1 ASE1 Technician Auto { Lioht Truck lever I 1AS2 ASE2 Technician Auto I light Truck Levell! 1AS3 ASE3 Technician Auto I Light Truck Level III 1ATP Academv Training Pay • POA '1 BAR Breathino Apparatus Repair Station 36 1BFC Backflow Certification

I iBID Bilingual - Dispatcher 1BIF Bilingual Pay - Local 145 1SIP Bilingual Pav - POA 1BIR BilinQual Pay - Regular

1BMO Battalion Medical Officer 1CAD CADD Certification Pav iCBO Intemational Conference of Buildina Official Pay

i 1CB2 Class B License - Ongoing 1CCP Corrosion Control Painter 1CIP Core Instructor Pay

1CRC Cross Connection Certificate 1CRI Cliff Rescue Instructor

1CRM Collision Reoair & Refinishing Cert. - Masters 1CRO Community Relations Officers 1CRP Chemical Enqineering Registration 1CR1 Collision Repair &Refinishing Cert. - 1 1CR2 Collision Repair & Refinishing Cert. - 2 1CR3 Collision Reoair & Refinishinq Cert - 3 1CS1 Confined Space· Local 127 , 1CS2 Confined Space - MEA \

10AE Damaoe Analysis & Estimating Certificate mcp Police Post Dispatch Certification Pay 1DDP D Division Pay - Fire 1DEC ABFDE Document Exam Certification Pay 10ET Detective Pay 1DIV Dive Team Pay

EXHIBIT A EARNINGS CODES INCLUDED IN RETIREMENT BASE EAR:-rINGS

As of 7i01/2006 or Later

I

EARNING CODE

EARNING CODE TITLE I EFFECTIVE!

DATEI I I

(New Codesl 1003 California Dept. of Health Services Certified Distribution

Operator Certificate - Grade 3

r 1004

1005

California Dept. of Health Services Certified Distribution Operator Certificate - Grade 4 California Dept. of Health Services Certified Distribution Operator Certificate - Grade 5

I

1DTP Dispatcher TraininQ Pay 1EGR i Engineering Geologist Pay 1EMD EMD Certification Pay Dispatchers 1EMS EMS Specialty Pay (Stations 26, 44 or 41} 1EMT Emergency Medical Technician

I 1EM2 Emergency Medical Lifequard 1ENP Emergency Negotiator lEOD Explosive Ordnance Squad (Fire) ,

1ERP Registration Pay for Engineers 1ESR Structural Registration Pay 1FAA Fire Administration Assignment Pay 1FLP Flight Pay (POA) 1FMA California Fire Mechanic Academy Master Certificate

! Level 3 1FTA FTO Administrative Training Pay - POA 1FTC Field Training Pay - Community Service Officer I

I 1FTO Field Training Pay 1GGS Grounds I Greenskeeper Equipment Operation

Supervision 1GIS GeoQraphic Information System Certification Pay 1GRp· GeoroQist ReQistration Pay 1G3C Voluntary Grade III Certification Pay Local 127 1G4C Voluntary Grade IV Certification Pay - Local 127 1G5C Voluntary Grade V Certification Pay -local 127

I 1HBU Harbor Unity Pay 1HR1 Heavy Rescue Specialty Pay - Level 1 1HR2 Heavv Rescue Specialty Pay - Level 2 1HR3 Heavv Rescue Specialty Pay - Level 3 1HR4 Heavy Rescue Specialty Pay - Level 4 1HSR Hose Repair - Station 20 1HT1 ASE Medium I Heavy TrUCk Technician Certification Pay

Levell 1HT2 ASE Medium I Heavy Truck Technician Certification Pay

Level II 1HT3 ASE Medium I Heavy Truck Technician Certification Pay

Level III . 1HZM Hazardous Materials Squad (Fire) 1HZS Hazardous Materials Squad - Special 1lPP Intermediate Post Certificate

2

EXHIBIT A EAR;\fINGS CODES INCLUDED IN RETIREMENT BASE EARNINGS

As of 7J01l2006 or Later

EARNING EARNING CODE TITLE I EFFECTIVE

I.

1 CODe I DATE (New Codes)

11P1 Intermediate Post Certification Pav· P01 11RW International Riaht of Way Certification Pay , 1lST In-Service Trainina Pay - POA

1K9C Canine Unit Pay 1K9T Canine Traininq Pay 1LAL Landscape Architect License 1LDR Ladder Repair Station 40 1LPE Latent Print Exam Certification Pay 1MC1 Multiple Certification Pay - $.30 /hr 1MC2 Multiple Certification Pay - $.55/ hr I

1MC3 Multiple Certification Pay - $.80 I hr 1MC4 Multiple Certification Pay - Factor of Base PaY 1MC5 Multiple Certification Pay - Factor of Base Pay 03/07/2006 1MHT ASE Master Medium J Heavy Truck Certification 1MLS Master Library Science Deqree 1MMC ASE Master Mechanic Certification - MEA 1MPP Mounted Patrol

I 1MPT Mounted Patrol Trainer 1MST Metro Arson Strike Team 1M1C Multiple Certification Pay - MEA $.25 I

1M2C Multiple Certification Pay - MEA $.50 1M3C Multiple Certification Pay - MEA $.75 1NSP Night Shift Pay 1PAL Pesticide Applicators License 1PAR Paramedic Pay . 1PMS Paramedic 12 Hr Shift Pay 1PSP Paramedic Soecialty Pay (must be reaffirmed annuallv) 1PTO Paramedic Trainina Officer 1RIP Reserve Instructor Pay 1RRJ River Rescue Team - 11/15-04/15 1RTP Ranoe Trainino Pay - POA 1SEQ Small EQuioment Reoair Station 23 1SRT Special Response Team Pay 1SSP Split Shift Pay 1STR STAR Team 1SWR SWAT Trainer Pay 1SWS SWAT Sniper Pay 1SWT SWAT Team Pay HC1 Plant &Tank Vol. Cer!. Pay - Local 127 - Grade lJ HC2 Plant & Tank Vol. Cer!. Pay - Local 127 - Grade III HC3 Plant & Tank Vol. Cert. Pay· Local 127 - Grade IV H1C Plant &Tank Vol. Cert. Pay - MEA - Grade II H2C Plant &Tank Vol. Cert. Pay - MEA - Grade III I H3C Plant &Tank Vol. Cert. Pay· MEA - Grade IV l

3

EXHIBIT A EARNINGS CODES INCLUDED IN RETlREMEl\T BASE EAR.l~INGS

As of 7/0112006 or Later

EARNING CODE TITLE EFFECTIVE I DATE I {New Codes}

1WC1 I American Weldinq Society Certificate - level 1 1WC2 American Weldina Society Certificate - level 2 1WC3 American Welding Society Certificate - Level 3 1WT5 Water Operations Grade 5 Pay 12SP 2nd Watch Shift 12WM Two-wheel Motorcvcle (POAl 12WP 2nd Watch Shift Differential Pay 13SP 3rd Watch Shift 13WM Three-wheel Motorcycle (MEA) 13WP 3rd Watch Shift Pay - P01

Police Phone Dispatch Assionment Pay OCA 1911

DCA Pay REG Reqular Pay 5ALB AIL Bereavement 5ALS AIL School Volunteer 5ALV AlL Vacation 5ANS All Sick 5ASO Sick Leave (old) 5CLJ Court Leave JUry Dutv 5CLW Court Leave - Witness Dutv 5CTF Fire 8 Hour Como Taken SCTP Como Time Taken - School Volunteer 5CTS Como Time Hours Taken Sick

Como Time Taken 5CYT scn

Cycle Time Taken 5DlF Discretionary Leave - Furlouqh 5DLN Disaster leave - Non Reimbursable 5DLR Discretionary Leave· Disaster 5DlS Discretionary Leave - Standby 5DlT Discretionary Leave - Dept Award 5EMM Extended Mifitarv Leave for Pay 5FlH FloatinQ Holiday 5FTT Shift Trade Taken 5HLF Fire Holidav 5HLS Holiday Pay - Scheduled 5HlU Holiday Pay - Unscheduled SIDl Industrial Leave 5MAL Manaqement Administrative Leave 5MLV Military Leave Less Than 31 Davs 5PlU Presidential Leave - Union 5VOL Voluntarv Leave - Paid 6CBU Cash Bonus - Unclassified lTLR Terminal Leave - Retiree lTLS Terminal Leave· Sick

4

I

EXHIBIT A EARNINGS CODES INCLUDED IN RETIREMENT BASE EARNINGS


EARNING EARNING CODE TITLE I i

CODe

7TLV Terminal Leave - Vacation MBP Back Pay Adiustment ,';ADD Retro ADDON Pay Adjustments AADJ Salary Ordinance Adjustments (affects only Legislative

I members in order to comply with an exact Salary amount) AAPP Retro Promotion Pay Adjustments ACOR Paycheck Correction Adjustments AMRT Retro Merit Increase Adjustments AOCA Retro OCA Pay Adjustments AOPP Overpaid Paramedic Add-on Payments APAR Underpaid Paramedic Add-on Payments APRC Pay Reduction Correction APRO Retro Promotion Pay Adjustment A127 UAAL 1.9% Reduction (Gross Adjustment)

EFFECTIVE DATE

{New Codes} I

5

13

EXHtBITB EARNINGS CODES EXCLL'"DED IN RETIREMENT BASE EAR~INGS

As of 7/01/2006 or Later

i EARNING CODE

f EARNING CODE TlTLE I

EFFECTIVE DATE

(New Codes)

I MDT ACSR

Retro AdCrime Sc

don Time Dependent Adjustment ene Response Pay

r

ADIG Disinterment Pay 1AOl 07/01/2006 1AOT

Air Operations Pay - Temporary Air Operations Pay - Temporary local 145

1BIT Bilingual Pay - Temporary (POA) 1BTM Bilingual Pay - Temporary (MEA) 1CLB Class NB Driver's License - MEA· Loca/127

I Dispatcher Traininq Pay (Temporary} 1ESSmIT

Special Shift Differential for Enoineers 1LPA Lead Paint Abatement 1MSY 07/0112006MAST Pay - Temporary Local 145 1PDB Police Dispatch Bilingual Pay (Temporary) 1PMT Paramedic Premium Pay - (Temporary) 1PTT Paramedic TraininQ Officer-Temp 1RRT River Rescue Team - 4/16-11/14 1SBP Standby Pay 1SDE Senior Data Entry Operator Duties 1SDT Sanitation Driver -1 Person -TO 1SMA Sewer Maintenance Assionment Pay 1VCT Vector Control Technical Certification Pay ABEA Beach Enforcement Uniform Allowance ABIK Bike Patrol Uniform Allowance ABOT 07/01/2006Boating Uniform MEA - lifequards ACAN Canine Uniform Allowance ACAR City Business Vehicle ACMN Mileage Adjustment - Non Taxable ACMT Mileage Adjustment - Taxable ACSH FBP Cash Ootion ADCA OeM DROP 3.2% Pay Reduction 07/01/2006 ADEP FBP Dependent! Child Care Reimbursement ADE1 FBP Dependent 1 Child Care Reimbursement (Auditor's

Fiscal Year Use Only) ADMV FBP Dental 1 Medical! Vision Reimbursement ADM1 FBP Dental 1 Medical 1Vision Reimbursement (Auditor's

Fiscal Year Use Only) i AEIC Advance Earned Income Credit AFBN Flexible Benefit Adjustment - Non Taxable AFBT Flexible Benefit Adjustment - Taxable ,AFEM Female Uniform Allowance MEA lifeQuard 07/01/2006 AHAR : Harbor Patrol Uniform Allowance AHEL HeIJcopter Uniform Allowance MEA lifeQuard 07/01/2006 AH/R Health Insurance Refund

AHOR IHorse Patrol Uniform Allowance AHW Heavy Rescue Uniform Local 145 07/01/2006

I

I

I

EXHIBITB EARNI~GS CODES EXCLUDED IN RETIREMENT BASE EARJ.'iINGS

As of7/01lZ006 or Later

,-------,------------------------,------

EARNING EARNING CODE TITLE CODE

AJUN AMED AMOT AMOV AMOX AMST ANTE APCS APCR APOA APRK ARUN ASTR ASWA ATOO ATUN ATUT AUNI AUSR AUTO MOOT MOTT MOiN M01P Mon M02N M02P M02T M03N M03P M03T M04N M04P M04T M05N M05P M05T M06N M06P M06T M07N MO?P M07T M08N M08P

I

Initial Uniform Allowance Medicare Refund Adjustment Motorcycle Sauad Uniform Allowance Movina Allowance Accountable Plan Moving Allowance Non-accountable Plan MAST Uniform local 145 Nontaxable EarninCl Adjustment Paramedic Certification Bonus Paramedic Certification Cost Reimbursement POA DROP 3.2% Pay Reduction ParkinQ Adiustment Retro Uniform Allowance STAR Uniform Allowance Local 145 SWAT Unifonm Allowance Tool Allowance Tuition Reimbursement Non-Taxable Tuition Reimbursement Taxable Uniform Allowance US&R Unifonm Allowance Local 145 Auto Allowance Out of Town Mileaqe Reimbursement Out Of Town Mileage Reimbursement January Non-taxable Mileage Reimbursement January ParkinQ Reimbursement January Taxable Mileage Reimbursement February Non-taxable Mileage Reimbursement February Parkina Reimbursement February Taxable Mileage Reimbursement March Non-taxable Mileage Reimbursement March ParkinQ Reimbursement March Taxable Mileage Reimbursement April Non-taxable Mileage Reimbursement April Parkina Reimbursement April Taxable Mileaoe Reimbursement May Non-taxable Mileage Reimbursement May Parking Reimbursement May Taxable Mileage Reimbursement June Non-taxable Mileage Reimbursement June Parking Reimbursement

. June Taxable MileaCle Reimbursement July Non-taxable Mileage Reimbursement July Parking Reimbursement July Taxable MileaQe Reimbursement Auqust Non-taxable Mileage Reimbursement August Parkioq Reimbursement I

EFFECTIVE DATE

(New Codes)

07101/2006

03111/2006

07/01/2006

07/01/2006

I

I

J

I

2

EXHIBITB EARNINGS CODES EXCLUDED IN RETIREMENT BASE EARNJNGS


I EARNING EARNING CODE TITLE ·1~~;:~~IVE I CODE DATE

I (New Codes) M08T AUQust Taxable Mileage Reimbursement M09N September Non-taxable Mileage Reimbursement

i M09P September Parking Reimbursement M09T September Taxable Mileaqe Reimbursement M10N . October Non-taxable Mileage Reimbursement M10P October Parking Reimbursement M10T October Taxable Mileage Reimbursement M11N November Non-taxable Mileage Reimbursement M11P November Parking Reimbursement

i M11T November Taxable Mileage Reimbursement M12N December Non-taxable Mileage Reimbursement M12P December ParkinQ Reimbursement M12T December Taxable Mileage Reimbursement 1M1 Automobile Allowance - $800 1M2 Automobile Allowance - $475 1M3 Automobile Allowance - $300 1M4 Automobile Allowance - $400 02125/2006 6EHI Executive Health Insurance 6ELI Executive Life Insurance 6PU Portable Life Insurance Imputed

MDO Retro Addon Overtime Pay ABTG Bid to Goal Pay ABGW Bid to Goal Pay Water 06/01/2006 AILF Industrial Leave - FIT Adiustment AILS Industrial leave - SIT Adiustment AINT Interest on Retro Pay Adjustment

AMRO Retro Merit Increase Overtime Pay ANEG POA Neootiated Leave Pavment ANLG NeQotiated Leave Payment AOTP Retro Overtime Pay APAY Retro Pay Adrustment APFP Pay for Performance APFW Pay for Performance Water 06/01/20G6 APPA Pay for Performance - Administration

i APPC Pay for Performance Collections APPE Pay for Performance - EngineerinQ APPO Pay for Performance - Operations APPP Pay for Performance - Program Management APPS Pay for Performance - Services / Contract APPT Pay for Performance - Technical Services

I AROC . Retro OCA Overtime Pay I AVLT Voluntary Time Off Spread Gross Adjust

FlSA FLSA OT Pay FLSM FLSA Manual Adjustment OFHP i Fire Holidav Premium Rate Pav

3

I

EXHIBIT B EARNINGS CODES EXCLUDED IN RETIREMENT BASE EARNINGS


!

EARNING I EARNING CODE TITLE EFFECTIVE I CODE I DATE

!

(New Codes) Overtime Pay at Premium OTP Overtime Pay at StraiClhtOTS Termination Voluntary Leave Payback TLVT Termination NeQotiated Leave Payoff TNLG Termination Voluntary Leave Pay Back TVLT

1K9A [1} Canine Care Pay Motorcycle Care Pay 1MCC [1J

6AlP Annual Leave I Pav-In-lieu COMP Time Conversion to Pav 6CCP

6CTP Cycle Time Conversion to Pav Fire 8HR Comp Conversion to Pay6FCC

6HlC Holidav Conversion to Pav Exceptional Performance Pav - Classified6PPP

6PPU Exceptional Performance Pay - Unclassified ?TAL ! Termination Pay - Annual leave

Termination Pay - COMP TIME HCT 7TFC Termination Pay - Fire 8 hour COMP 7TFF Termination Pav - Fire Holiday 7TFH Termination Pay - Floating Holiday 7TFS Termination Pay - Fire Shift Trade

Termination Pay - Cycle Time 7TLC 7TLE Termination Leave - Retiree - Extended OROP 7TlO Termination Pay - Sick Leave

Pay Period Advance Collection 7TPA 8CET COMP TIME Earned aCTE Cycle Time Earned 8CTR Red 'A' Cycle Time Earned 8CUP COMP TIME Premium Earned 8FLC FLSA COMP TIME Earned 8FST Fire Shift Trade Earned 5CYR Red 'A' Cycle Time Taken I 5FFT Failed Shift Trade 5lTO Lona Term Disabilitv Benefit 5LT1 LTD Social Securitv Adjustment 5lT2 LTO Retirement Income Adjustment i 5lT3 LTO Workers Com pensation Adjustment 5LT4 l TO Other Income Adjustment

I5LT5 l TO Retro Payment Adjustment I

9FML Family leave Without Pay 9EML [2] leave Without Pay - Extended Military leave I 9EMM r21 Leave Without Pav - Extended Military Leave 2001 I

Authorized Leave Without Pay - School Volunteer 9LAS 9LAU Authorized Leave Without Pav 9lCS leave WIG Pav esc Approved 9lSK Authorized Leave W/O Pay - Sick

4

EXHffiIT B EAH.NINGS CODES EXCLUDED IN RETIREMENT BASE EARNINGS

As of71Oli2006 or Later

EARNING EARN1NG CODE TITLE i EFFECTIVE j CODE DATEI

I I (New Codes) 9LUA Unauthorized Leave W/O Pay 9PDA i Preqnancy Disability Act (Unpaid) 9RED Unauthorized Leave W/O Pay - System qenerated 9REH Rehabilitation 9RWC Worker's Compensation 9SPI Suspension PendinQ Investiqation 9SPR Suspension Reqular 9VOL Voluntary Leave Without Pay

Footnotes:

[1J Canine Care Pay (1K9A) and Motorcycle Care Pay (1MCC) are listed in Exhibit B as earnings codes excluded from Retirement Base Compensation. 80th Canine Care Pay and Motorcycle Care Pay are classified as overtime pay. and as such are excluded from Base Compensation pursuant to San Diego Municipal Code Section 24.0103. Although excluded from Base Compensation by law, Canine Care Pay and Motorcycle Care Pay mistakenly were listed in prior Earnings Codes Documents as earnings codes included within Base Compensation. This revised annual listing of earnings codes reflects the correct classification of the Canine Care Pay and Motorcycle Care Pay earnings codes, which classification shall apply retroactively to the origination of these earnings codes.

[2] Leave Without Pay-Extended Military Leave (9EML) and Leave Without Pay-Extended Military Leave 2001 (9EMM) were reclassified to Exhibit B because there are no earnings associated With these codes. However, employees are aI/owed to purchase service credit for the time they are on Extended Military Leave Without Pay.

5

16

EXHIBIT 2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court. rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for pUblication or ordered pUblished, except as specified by rule 8.1115{b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STEVEN A. SLOAN et aI., D049158

Plaintiffs and Respondents,

v. (Super. Ct. No. GIC84864l)

CITY OF SAN DIEGO,

Defendant and A pellant.

APPEAL from ajudgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed as modified.

Three City of San Diego police officers (Officers) brought a declaratory relief

action seeking an order requiring the City of San Diego (City) to include canine care pay

in "Base Compensation" for purposes of determining their retirement benefits. After a

bench trial, the court found in the Officers' favor and entered a judgment stating that San

Diego Municipal Code section 24.0103 1 requires the City to include canine care pay in

"Base Compensation."

All undesignated section references are to the San Diego Municipal Code. 1

The City appeals. We hold the trial court: (1) properly determined section

24.0103 incorporates a document known as the "Earnings Codes Document" to serve as

the source for identifying the specific pay items included in retirement base

compensation; and (2) properly found that canine care pay was included in retirement

base compensation in the Earnings Codes Documents from 2000 through 2005.

However, we determine the judgment must be modified to clarify the scope of the

declaratory relief. As so modified, we affirm the judgment.

FACTUALANDPROCEDURALS~Y

The San Diego Police Department uses dogs for a variety oflaw enforcement

purposes. The Department assigns each dog to a canine unit officer, and requires the

officer to take the dog home and care for the dog during off-duty hours. This home care

enhances the effectiveness of the dogs because "once the dog is properly bonded he will

respond properly to commands and work more efficiently." The officers must care for

the dog 24 hours per day, and cannot permit the dog to substantially interact with family

members. In exchange for these duties, each officer receives 3.5 additional hours of

weekly compensation paid at the premium overtime rate. The officers are paid this

amount for the off-duty care regardless of the number of hours worked. Officers

assigned to the canine unit generally spend much more than 3.5 hours each week caring

for the police dog.

The plaintiffs in this case are three police officers who have been assigned to the

canine care unit for more than 10 years. They are safety members of the City's retirement

system. (§ 24.0103.) The amount ofbenefits paid to these officers at retirement depends

2

on several factors, including the officer's "Final Compensation." (§§ 24.0403, 24.0103.)

"Final Compensation" is defined as "the Base Compensation for the highest one year

period during membership in the Retirement System." (§ 24.0103.)

After the City refused to include canine care pay in Base Compensation for

purposes of calculating police officer retirement benefits, the Officers filed this action in

June 2005, seeking an order requiring the City to include canine care pay in Base

Compensation.

A one-day bench trial was held in May 2006. At trial, the legal issue concerned

whether canine care pay fell within the definition of "Base Compensation" under the

Municipal Code. As will be discussed more fully in the Discussion section below, the

Municipal Code defines "Base Compensation" as "base salary or wages paid," but also

refers to a document entitled the "Earnings Codes Document" as the source for a

"complete listing" of pay classes included in Base Compensation. (§ 24.0103.)

Based on this Municipal Code definition, a primary focus ofthe Officers' case at

trial was the nature and contents of the Earnings Codes Documents. The evidence

showed that the City auditor's office annually prepares the Earnings Codes Document,

which is a multi-page comprehensive listing of hundreds of pay classes for City

employees. The Earnings Codes Document divides these pay classes into two

categories: (1) those pay classes "INCLUDED IN RETIREl\1ENT BASE EARNINGS";

and (2) those pay classes "EXCLUDED IN RETIREMENT BASE EARNINGS."· After

the City auditor's office prepares the annual Earnings Codes Document, it is approved by

3L_~--------_-.:!.---------------~

various City officials and then ratified by the city council through its adoption of the

annual budget.

At trial, the Officers produced evidence that "canine care pay" was placed in the

category of items "INCLlJDED IN RETIREMENT BASE EARNINGS" on the Earnings

Codes Documents for 2000,2001,2002,2003,2004, and 2005. During each of these

years, several City officials reviewed the Earnings Codes Document and signed an

acknowledgement that the pay items included in retirement base pay were correct. At

various times, these City officials included the City personnel director, the City auditor,

and the City manager.

Other than the Officers, the only City employee to testify at trial was Kyle Elser,

the City's payroll and accounts payable manager, who acknowledged that as far back as

he could recall canine care pay was identified in the Earnings Codes Document as

included in retirement base compensation, and it was never excluded. However, Elser

said he now believes this was a mistake. He based this opinion on the fact that canine

care pay is considered "overtime pay.n He also stated that the Earnings Codes Document

is used for payroll purposes, and canine care pay never had an amount entered into the

automated payroll system (CAPPS) to correspond with the base pay code.

At trial, the Officers also submitted the deposition testimony of Jerry Fort, who

had been previously responsible for identifying the earning codes included as base

4

compensation upon which retirement contributions are detennined.2 Fort stated that "the

standard that's been applied [to determine which pay classes were .included in retirement

base compensation] ... has been those add-ons which occur as a result of regular

recurring duties that a person would perform on a ... normal basis as part of their regular

assignment would be included as part of their base compensation for retirement

contribution purposes." When given a hypothetical at the deposition about canine care

pay, Fort stated that this would be a type of add-on he would have to examine to decide

whether to include it in base compensation.

The City did not call any of its own witnesses at trial, but introduced a copy of the

parties' 2003 Memorandum ofUnderstanding (MOD), a collective bargaining agreement.

Although this MOD had expired, the evidence showed the parties continued to act under

most of its provisions. Article 32 of the MOU is entitled "OVERTIME," and provides

that "Employees assigned to the Canine Unit will be paid 3.5 additional hours of

compensation each 40-hour work week at premium rate overtime .... The parties agree

that this is a reasonable amount oftime for such activities."

After taking the matter under submission, the trial court ruled in the Officers' favor

based on its finding that the "City's Earnings Code Document currently in effect (as well

as those in effect in years past) expressly includes Canine Care Pay in retirement base

earnings or 'Base Pay' for purposes of determining peace officer retirement. 11 The court

2 Fort was deceased at the time of the trial. The testimony has been elicited as part of another lawsuit against the City. The court overruled the City's hearsay objections to the deposition testimony.

5

rejected the City's argument that this listing was a "mistake," stating: "The Earnings

Code Document for the City ... is ratified on a yearly basis by the City Council. Each

Document is signed by the Retirement Administrator, the City's Personnel Director, the

City's Auditor and Comptroller, and the City Manager. . .. ['1] ... [tj[] Inclusion in the

list of earnings included in the determination ofretirement pay is no mistake. There is no

credible evidence before this court to support the conclusion that no one read or

considered the Earnings Code Document before signing it. To the contrary, the evidence

supports the conclusion that every City Auditor and Controller who signed the document

since 1998 read and understood the classifications included and excluded prior to affixing .

hislher signature." The court also rejected the City's argument that the "overtime"

character of canine care pay precluded the court from determining the pay constituted

Base Compensation for retirement benefits purposes.

On June 28, 2006, the court entered a judgment stating: "The City of San Diego is

required pursuant to San Diego Municipal Code section 24.0 I03 to include Canine Care

Pay in Base Compensation."

Thereafter the City's assistant auditor prepared a new Earnings Codes Document,

effective July 1, 2006, which expressly excluded canine care pay from Base

Compensation. This document contained a footnote stating that the previous

characterization during the past five years had been a "mistake[]." On January 25,2007,

four days before the City filed their appellate briefs in this case, several City officials

signed acknowledgements of the new Earnings Codes Document. The City then

6

requested that this court take judicial notice of the new Earnings Codes Document and

the acknowledgements. For the reasons explained below, we deny this request.

DISCUSSION

The City contends the court erred in determining canine care pay is included in

"Base Compensation" for purposes of retirement pay.

1. Governing Legal Principles

We begin with the express definition of "Base Compensation" contained in the

Municipal Code:

11 'Base Compensation' means and includes the base salary or wages paid (standard hours multiplied by the hourly rate) on a regular biweekly basis to an employee for his or her services in any given pay period, including (by way of example) but not limited to such items of compensation as: time during which the employee is excused from work for holidays, annual leave taken, sick leave taken, compensatory time off taken, industrial leave taken, discretionary leave taken, and pay for out-of-class assignments. Base Compensation means salary before pre-tax deductions for such items as participation in a deferred compensation plan, SDCERS, or for authorized dependent health care premiums. A complete listing of included and excluded items ofcompensation or remuneration is memorialized in a document entitled 'Earnings Codes Included in Retirement Base Compensation [the Earnings Codes Document], which is prepared annually and which shall be kept onfile in the Office ofthe City Clerk, and also maintained by the City Manager, the City Auditor, the Retirement Administrator and the Personnel Director. The Earnings Codes Document shall be amended annually, as necessary to reflect any changes or additions made during the City's budget adoption process.

L "For purposes ofcalculating retirement benefits, 'Base Compensation' shall not include any item ofcompensation or remuneration which is identified in the Earnings Codes Document as excludedfrom Base Compensation, including (by way ofexample) but not limited to: the Flexible Benefits Plan dollar value available

_to an employee each fiscal year; ~e amount of an employee's

retirement system contribution which the City pays on behalf of the employee [the Retirement Offset]; payments made for overtime work (whether at straight or premium pay, and whether paid directly or by conversion to compensatory time off); payments made by the City to the Supplemental Pension Savings Plan on behalf of an employee; payments made by the City to an employee in lieu of the employee's taking of accrued annual leave; payments made by the City to an employee as a Uniform Allowance or Uniform Reimbursement, or the monetary value of employer-provided uniforms; payments made by the City to an employee as a Tool Allowance; payments made by the City to an employee as an Automobile Allowance or for

. reimbursement of miles driven while using a personal vehicle for work-related duties; payments made by the City to an employee as a Moving Allowance; payments made by the City to an employee for exceptional performance or pursuant to a 'pay for performance' plan, unless such payments are expressly designated in the annual Salary Ordinance for inclusion in Base Compensation; payments made to an employee pursuant to the City's Long Term Disability Plan or pursuant to the Worker's Compensation Statute; and cash conversions of accrued, unused annual leave or 'old' sick leave, in connection with or in anticipation of separation from employment. " (§ 24.0103, italics added.)

The city council adopted this ordinance in August 2000, and made it effective beginning

July 1,2000.

In determining the meaning of section 24.0103, we are guided by settled appellate

principles. "The construction of an ordinance is a pure question of law for the court, and

the rules applying to construction of sta~tes apply equally to ordinances." (HN &

Frances C. Berger Foundation v. City ofEscondido (2005) 127 Cal.AppAth 1, 12.)

"Well-established rules of statutory construction require us to ascertain the intent of the

enacting legislative body so that we may adopt the construction that best effectuates the

purpose of the law. [Citation.] We first examine the words themselves because the

statutory language is generally the most reliable indicator oflegislative intent. [Citation.]

8

The words of the statute should be given their ordinary and usual meaning and should be

construed in their statutory context. [Citations.] These canons generally preclude

judicial construction that renders part of the statute 'meaningless or inoperative.'

[Citation.]" (Hassan v. Mercy American River Hospital (2003) 31 Ca1.4th 709, 715-716.)

II. Earnings Codes Document is Source for Pay Items Included in Base Compensation

Viewing section 24.0103 under these statutory interpretation principles, we agree

with the trial court that the annual Earnings Codes Document is the source for

determining whether a pay item was Base Compensation for purposes of retirement

benefits. Section 24.0103 states that Base Compensation means "base salary or wages

paid," but then unambiguously states that a "complete listing ofincluded and excluded

items ofcompensation or remuneration is memorialized in the . .. Earnings Codes

Document" that is to be prepared annually and maintained in the files ofvarious public

officials. (§ 24.0103, italics added.) Section 24.0103 also specifically refers to the

Earnings Codes Document in identifying the items that are excluded from Base

Compensation: "For purposes of calculating retirement benefits, 'Base Compensation'

shall not include any item of compensation or remuneration which is identified in the

Earnings Codes Document as excludedfrom Base Compensation." (§ 24.0103, italics

added.) These provisions reflect that the city council intended to incorporate by reference

the Earnings Codes Document to precisely define the scope and meaning of "Base

Compensation. It

This construction is strongly supported by the language of the annual Earnings

Codes Document, each of which contained two parts. The first part (labeled "Exhibit A")

9

is entitled "EARNINGS CODES INCLUDED IN RETIRE11ENT BASE EARNINGS."

The second part of the Earnings Codes Document (labeled "Exhibit B If) is entitled

"EARNINGS CODES EXCLUDED IN RETIREMENT BASE EARNINGS." From

2000 through 2005, canine care pay was listed in the first part (Exhibit A), under the

following subtitle: "The add-on Earnings Codes listed below are classified as 'negotiated

specialty add-ons' and are included in retirement base earnings because all employees

perfonning that class of work during their ordinary work hours on a consistent basis earn

them at the same rate of pay." (Capitalization omitted.) During these years, canine care

pay was never listed under Exhibit B.

In light of the language of section 24.0103 and the annual Earnings Codes

Documents, we find unavailing the City's argument that the Earnings Codes Document

merely "implements" base compensation "for internal practical and administrative

purposes." There is no reason to have repeatedly referred to the Earnings Codes

Document in the Municipal Code section defining Base Compensation for retirement

benefits purposes if the Earnings Codes Document was merely to serve an accounting

function. Moreover, the City's argument is inconsistent with the actions of city officials.

As found by the trial court, the categorization of the pay classes on each Earnings Codes

Document was expressly approved by various city officials, including the City manager

at a time when the City operated under the city manager form of government. These

approvals were reflected on a form that specifically asked whether each city official

"Agree[d]" or Disagree[d]" with the earnings codes included as "RETIREMENT BASE

COMPENSATION' listed in Exhibit A and those excluded from "RETIREMENT BASE

10

COMPENSATION' listed in Exhibit B. (Italics added.) With respect to each Earnings

Codes Document, a responsible city official returned the document with a check mark

next to the "Agree" box. The city council ratified the correctness of the classifications

during the annual budget adoption process.

The City contends that even if canine pay care was included in Base

Compensation for purposes of retirement benefits, the city officials had no authority to

make this designation because the designation violated the ordinance and was thus void

and of no effect. In support of this argument, the City relies on the second paragraph of

section 24.0103, which states: "For purposes of calculating retirement benefits, 'Base

Compensation' shall not include any item of compensation or remuneration which is

identified in the Earnings Codes Document as excluded from Base Compensation,

including (by way of example) but not limited to: ... payments made for overtime

work . ..." (§ 24.0103, italics added.) The City contends this provision removes "canine

care pay" from Base Compensation because canine care pay is "overtime pay."

This contention is based on a faulty reading of the ordinance. The second

paragraph of section 24.0103 does not exclude all overtime payments from the definition

of Base Compensation. Instead, it states that" 'Base Compensation' shall not include any

item of compensation or remuneration which is identified in the Earnings Codes

Document as excludedfrom Base Compensation . ... " (§ 24.0103, italics added.)

Because canine care pay is not "identified in the Earnings Codes Document as excluded

from Base Compensation," this sentence does not have the effect of excluding canine

care pay, and does not remove the City's authority to include such pay in the definition of

11

Base Compensation. The City's proposed interpretation reads out the phrase "which is

identified in the Earnings Codes Document as excluded from Base Compensation" from

section 24.0103. If the drafters of the Municipal Code had intended to restrict the City's

authority to include one of the listed items within the definition of retirement base

compensation, it could have said so directly without including the qualifying phrase

"which is identified in the Earnings Codes Document as excluded." A city ordinance will

not be construed as restricting a city's power unless the restriction is stated expressly.

(See Taylor v. Crane (1979) 24 Ca1.3d 442,450-451 ["Restrictions on a charter city's

powers may not be implied").)

Contrary to the City's contention, this interpretation does not render section

24.0103's listing of "example[s]" of excluded items as mere "surplusage." The drafters of

the code section could reasonably decide that it was appropriate to illustrate the types of

compensation items that would typically be excluded from retirement base pay, without

contradicting the other provisions that the Earnings Codes Document is the relevant

source for a "complete listing" of the pay items included in Base Compensation. Ifwe

were to adopt the City's view, we would have ,to conclude that the various references to

the Earnings Codes Document are surplusage. This construction is not reasonable. (See

Los Angeles County Safety Police Assn. v. County ofLos Angeles (1987) 192 CaLApp.3d

1378, 1390-1391 ["[A] statute should not be given a construction that results in rendering

one of its provisions nugatory"].)

In this regard, the City's emphasis in its appellate briefs on the fact that canine care

pay is overtime pay is unhelpful. For support of its position, the City points to: (1) the

12

fact that the City compensates officers for canine care at overtime rates; (2) the MOD

specifically identifies canine care pay as overtime pay; (3) the Officers' own testimony

that canine care pay is overtime; and (4) federai·law and regulations that treat time spent

caring for police dogs as overtime.

At trial, the Officers did not dispute that canine care pay was overtime pay in the

sense that it was paid at a premium rate for services beyond the regular 40-hour work

week. However, under section 24.0103, the critical test is not whether certain pay can be

construed as overtime pay, but it is whether the pay classification was identified in the

Earnings Codes Document (incorporated into the Municipal Code) as included within the

definition ofBase Compensation for purposes of retirement benefits. Because section

24.0103 does not exclude all overtime pay from retirement base compensation (it

expressly excludes only those categories of overtime pay that are listed as excluded on

the Earnings Codes Document), this section cannot be the basis for a conclusion that

canine care pay is excluded. Likewise, the MOD does not provide that overtime pay

cannot be included in Base Compensation for purposes of retirement. Instead, it merely

designates canine care pay as overtime Ifpremiumtf pay, and establishes a negotiated set

amount ofhours for the overtime for administrative convenience.3

3 We recognize the trial court concluded canine care pay was not "overtime" because it shares many characteristics with "regular periodic compensation." However, we need not reach this issue because we [md the overtime character of canine care pay is not dispositive here.

13

The City's reliance on Ventura County Deputy Sheriffs Assn. v. Board of

Retirement (1997) 16 Ca1.4th 483 is also misplaced. In that case, the court construed the

phrase "compensation earnable" as used in Government Code section 31461, which

governs retirement benefits for county employees. (Ventura County, supra, atp. 487.)

Because this phrase is not included in the current section 24.0103, the high court's

interpretation is not applicable here. We reject the City's argument that because the prior

version of section 24.0103 included the phrase "compensation earnable," this phrase

should control in this case. The city council minutes reflecting the adoption of the

current section 24.0103 state that the purpose of the amendment was "to clarify the items

of compensation that are included in the calculation of City employee retirement

pay ...." There is no suggestion in the minutes that the City intended to remove all

overtime pay from the definition of retirement base compensation.4

The City additionally argues that even assuming the Earnings Codes Document is

the relevant source for defining Base Compensation, the Earnings Codes Document

designation was not controlling here because the designation was the result of an

"inadvertent" or "ministerial" error. However, the trial court found that the evidence did

not support this argument. The court stated that "[t]here is no credible evidence before

4 In a footnote, the City appears to suggest the city council's delegation of the Base Pay classification to city administrators was improper. However, the City does not directly make this argument or cite relevant supporting authority. In any event, Lhe trial court specifically found, and the evidence supports, that the City ratified the administrators' actions by approving the annual budget. Thus, there was no improper delegation.

14

this court to support the conclusion that no one read or considered the Earnings Codes

Document before signing it. To the contrary the evidence supports the conclusion that

every City auditor and controller who signed the document since 1998 read and

understood the classifications included and excluded prior to affixing hislher signature."

Substantial evidence supports the court's fmding. Canine care pay was included in

this designation six different times. Several high-ranking city officials-including the

city manager-signed an acknowledgement expressly agreeing that the earnings codes

included as retirement base pay were correct. When the city council amended the

Municipal Code to incorporate the Earnings· Codes Document, canine care pay was

specifically identified as an item ofBase Compensation in the applicable Earnings Codes

Document. Even after the lawsuit was filed, an Earnings Codes Document was approved

that again listed canine care pay as included within the definition of retirement base

compensation.

To show that the inclusion of canine ca,re pay in retirement base compensation was

a clerical error, the City relied solely on the testimony of the City's payroll and accounts

payable manager, who testified that he believed this inclusion was a mistake because

there was never a computer code attached to the pay for purposes of the payroll system.

The court had an ample basis to find that this testimony did not establish that each of the

city officials-and the city council when it approved the budget-had not reviewed the

list of included items when the official signedthe acknowledgement form agreeing with

the accuracy of the categories listed on the Earnings Codes Document.

15

III. The City's Request for Judicial Notice

The City next contends this court should reverse the judgment because after the

judgment a City auditor prepared a revised Earnings Codes Document that now expressly

excludes canine care pay from Base Compensation, and provides that the prior inclusion

of canine care pay was a "mistake[]." The City requests that we take judicial notice of

this Earnings Codes Document, which was created after the June 28, 2006judgment, and

expressly applies only to earnings after July 1, 2006. The City also requests that we take

judicial notice of several documents entitled "ACKNOWLEDGEMENT OF EARNINGS

CODE" signed by various City officials on January 25, 2007, four days before the City

filed its opening appellate brief in this case...

This evidence is not properly before us. It is a fundamental principle of appellate

law that our review of the trial court's decision must be based on the evidence before the

court at the time it rendered its decision. (See Vans Companies, Inc. v. Seabest Foods,

Inc. (1996) 14 Cal.4th 434,444, fn. 3; Kumar v. National Medical Enterprises, Inc.

(1990) 218 Cal.App.3d 1050, 1057, fn. 1; People's Home Sav. Bank v. Sadler (1905) 1

Cal.App. 189, 193.) Thus, ordinarily, a reviewing court will not take judicial notice of

matters not before the trial court. (Vans Companies, supra, 14 Ca1.4th at p. 444;

Brosterhous v. State Bar (1995) 12 Ca1.4th 315, 325; Poway Royal Mobilehome OYvners

Assn. v. City ofPoway (2007) 149 Cal.AppAth 1460, 1482, fn. 6.)

The City has not cited any exceptional circumstances that would justifY a

deviation from this rule. The City instead argues that we may consider the new Earnings

Codes Document because it was a "curative" legislative act. (See City a/Compton v.

16

Boland (1945) 26 Cal.2d 310, 313.) However, there is no evidence before us that the

preparation of these new documents was a legislative act, Le., that the city council

approved these documents or knew that these documents characterized the prior canine

care pay designation as a "mistake. I! Unlike the prior Earnings Codes Documents, there

was no showing the city council ratified the new Earnings Codes Document through

approval of the annual budget. Further, unlike the prior Earnings Codes Documents, the

new documents were not presented as exhibits at trial, and therefore there were no

opportunity for the Officers to review these documents or to cross-examine those

involved in preparing these documents.

Additionally, even assuming we could construe the City's postjudgment actions as

a legislative act that constitutes an attempt to interpret the City's prior acts, the

interpretation of a statute or an ordinance is generally an exercise ofjudicial power.

(Carter v. California Dept. ofVeterans Affairs (2006) 38 Ca1.4th 914, 922; see Anderson

v. San Francisco Rent Stabilization & Arbitration Bd (1987) 192 Cal.App.3d 1336,

1349.) Although a legislative body's subsequent declaration ofits prior intent may be a

factor in the analysis, the declaration is not binding on a court, and a court should not

accept the declaration if the clarification is inconsistent with the plain meaning of the

prior act or its legislative history. (See Carter, supra, 38 Ca1.4th at pp. 922-923.) In this

case, the statement that the prior designation of canine care pay was a "mistake" is

inconsistent with the evidence, and appears to be solely an attempt to overturn the trial

court's factual finding to achieve a favorable result for the City.

17

Moreover, even if we were to review the newest Earnings Codes Document and

the January 2007 approvals ofthis document, it would not change our decision in this

case. As explained below, we shall modify the judgment to clarify that it applies only to

canine care pay earned after July 1,2000, and earned during a time that canine care pay

was designated as Base Compensation on an Earnings Codes Document. Although it is

within the scope of the City's authority to prospectively change the types of pay classes

that constitute retirement base compensation. the changed definition would not affect the

rights of the plaintiffs before us on the claims asserted in this lawsuit. The extent to

which a changed definition may be retroactively applied was not an issue in the lower

court proceedings, and we decline to reach it here.

IV. The Judgment Must Be Modified to Clarify its Limited Scope

The City's final argument is that the declaratory judgment is too broad and should

be limited to a particular time period. Although the City did not assert this contention

below, we reach the argument in the interests ofjustice. The judgment as entered states:

"The City of San Diego is required pursuant to San Diego Municipal Code section

24.0103 to include Canine Care Pay in Base C.ompensation." We agree with the City that

this sentence is potentially misleading because it could be construed to mean that the City

is required to include canine care pay in Base Compensation under any circumstances.

Because this broad construction is not supported by section 24.0103 or the evidence

submitted at trial, the judgment must be narrowed.

First, section 24.0103's definition ofBase Compensation as incorporating the

annual Earnings Codes Document was effective on July 1,2000. Before this time, the

18

ordinance did not refer to the Earnings Codes Document, and instead defined Base

Compensation by reference to the phrase "Compensation Earnable." The Officers do not

claim that canine care pay came within the prior defmition of "Compensation Earnable."

Thus, the declaratory judgment should apply only to canine care pay earned after July 1,

2000.

Second, the court's ruling was based on its finding that canine care pay was

identified as Base Compensation in the 2000 through 2005 Earnings Codes Documents.

Thus, the declaratory judgment ordering that the City include canine care pay in Base

Compensation should apply only to canine care pay earned at a time when the Earnings

Codes Documents included canine care pay in the category of retirement base

compensation.

The judgment should thus be modified to read as follows: "The City of San Diego

is required pursuant to San Diego Municipal Code section 24.0103 to include canine care

pay in Base Compensation for purposes of calculating retirement benefits. This order

applies only to canine care pay earned after July 1, 2000 and earned at a time when

canine care pay was identified in an Earnings Codes Document as within the definition of

Base Compensation."

DISPOSITION

The judgment is modified to read: "The City of San Diego is required pursuant to

San Diego Municipal Code section 24.0103 to include canine care pay in Base

Compensation for purposes ofcalculating retirement benefits. This order applies only to

canine care pay earned after July 1, 2000 and earned at a time when canine care pay was

19

identified in an Earnings Codes Document ~s within the definition of Base

Compensation." As so modified, the judgment is affirmed. Appellant to bear

respondents' costs on appeal.

HALLER, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

20

12/08/2008 15:57 FAX 8587591906 Law Off. Michael Conger 141001

TRANSMISSION OK

TXlRX NO CONNECTION TEL SUBADDRESS CONNECTION In ST. TIME USAGE T PGS. SENT RESULT

********************* *** TX REPORT *** *********************

0558 16192367228

12108 01'27

6 OK

15:56

EXHIBIT A EARNINGS CODES INCLUDED IN RETIREMENT BASE EARi'J1NGS

As of 7!Ol/Z006 or Later

-

EARNING EARN ING CODE TITLE EFFECTIVE CODE DATE

1WC1 American Weldinq Society Certificate ~ Level 1 ,

(New Codes)

iWC2 American Welding Society Certificate Level 2 1WC3 American Weldina Society Certificate - Level 3 1WT5 Water Operations Grade 5 Pay 12SP 2nd Watch Shift 12WM Two·wheel Motorcycle (POA) 12WP 2nd Watch Shift Differential Pay 13SP 3rd Watch Shift 13WM Three~wheel Motorcycle (MEA) 13WP 3rd Watch Shift Pay P01 1911 Police Phone Dispatch AssiQnment Pay OCA OCA Pay REG Reaular Pav 5ALB NL Bereavement 5ALS' AIL School Volunteer 5ALV NL Vacation 5ANS NL Sick SASO Sick Leave (old) 5CL.J Court Leave Jurv Dutv 5ClW Court LeaVE! ~ Witness Duty 5CTF Fire 6 Hour Como Taken 6CTP Comp Time Taken School Volunteer 5CTS Como Time Hours Taken Sick

, 5CTT Comp Time iaken 5CYT Cycle Time Taken 5DLF Discrerionarv leave - FLlrlouQh 5DLN Disaster Leave Non Reimbursable SDL.R SOLS

Discretionarv Leave· Oisasler Discretionary leaVE! - Standby

...... ..

5DLT Discretionary Leave - Dept Award 5EMM Extended Military Leave for Pay 5FLH Floatina Holidav 5F1T Shift Trade Taken 5HLF Fire Holiday

12/08/2008 15:32 FAX 8587591906 Law Off. Michael Conger ~001

********************* *** TX REPORT *** *********************

TRANSMISSION OK

TX/RX> NO 0555 CONNECTION TEL 16192367228 SUBADDRESS CONNECTION ID ST. TIME 12108 15:29 USAGE T 02'47 PGS. SENT 15 RESULT OK

CITY OF SAN DIEGO

MEMORANDUM

DATE: January 25,2007

TO; Ronne Froman, ChiefOperating Officer

FROM; Rich Snapper, Personnel Director

SUBJECT: Add on Codes

The Personnel Department staffhas reviewed the Earning Code report dated January 9, 2007 issued by the City Audjto( and Comptroller.

Our review indicates that the codes ate properly categorized as included Ol' excluded from Retirement Base Compensation.

Based upon the existing approval of the City Auditor and our review, I would advise you that the report is appropriate for your conCUlTent signature.

f1~WAP~ Personnel Director

12/08/2008 15:26 FAX 8587591906 Law Off. Michael Conger ~001

TRANSMISSION OK

TXlRX NO CONNECTION TEL SUBADDRESS CONNECTI ON ID ST. TIME USAGE T PGS. SENT RESULT

********************* *** TX REPORT *** *********************

0554 16192367228

12/08 15:22 04'10

22 OK

LAW OFFICE OF MICHAEL A. CONGER

16236 SAN DIEGUITO ROAJ) STE.4-14

RANCHO SANTA FE, CA 92067 MAILINC ADDRESS

P.O. BOX 9374 Michael A. Conger RANCHO SANTA FE, CALIFORNIA 92067

(858) 7S9~0200

FAX (858) 759-1906

CIVIL LITIGATION ..;MPI"OYMENT LAW

BUSIN.;SS LAW WIWNGFUL DEATH

Sl!:RIOlJ$ IN,JURY

Fax Coversheet To: Mayor Jerry Sanders

City of San Diego

Fax No. (619) 236-7228)

From: Michael A. Conger, Esquire

Re: Lentz v. City of San Diego

Date: December 8, 2008

Comments/Instructions:

LAW OFFICE OF MICHAEL A. CONGER 16236 SAN DIEGUITO ROAD

STE. 4-14 RANCHO SANTA FE, CA 92067

MAILING ADDRESS P.O. BOX 9374

Michael A. Conger RANCHO SANTA FE, CALIFORNIA 92067

(858) 759-0200 FAX (858) 759-1906

CIVIL LITIGATION EMPLOYMENT LAW

BUSINESS LAW WRONGFUL DEATH

SERIOUS INJURY


City of San Diego

Fax No. (619) 236-7228)





You should receive 45 pages total (not including the cover sheets). Due to the length, document is being faxed in two transmissions.

Second transmission is 21 pages (Exhibit 2 to Dec. 8th letter), not including the cover sheet.

This message is intended only for the use ofthe individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader ofthis message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notifY us immediately by telephone and return the originalmessageto us at the above address via the United States Postal Service. Thank you.

If there are any problems with this transmission, please call (858) 759-0200

12/08/2008 15:19 FAX 8587591906 Law Off. Michael Conger [gj 001

********************* *** TX REPORT *** *********************

TRANSMISSION OK

TXlRX NO 0553 CONNECTION TEL 16192367228 SUBADDRESS CONNECTION ID ST. TIME 12108 15: 14 USAGE T 04'27 PGS. SENT 25 RESULT OK


Michael A. Conger

16236 SAN OIEGUITO ROAD STE.4-14

RANCHO SANTA l~E, CA 92067 MAILING ADDRESS

P.O. ,BOX 9374 RANCHO SAN1'A FE, CALIFORNIA 92067

(858) 759-0200 FAX (858) 759-1906

CIVIL LITIGATION EMPLOYMI<:NT I.AW


SItRIOlJS IN,JlJl~Y


City of San Diego

Fax No. (619) 236-7228)




Comments/lnstructions=

You should receive 45 oag:es total (not including: the cover sheets). Due to


STE.4-14 RANCHO SANTA FE, CA 92067



(858) 759-0200 FAX (858) 759-1906



SERIOUS INJURY


City of San Diego

Fax No. (619) 236-7228)






First transmission is 24 pages (5 page letter and Exhibit 1 thereto), not including the cover sheet.

This messageis intended only for the use ofthe individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. Ifthe reader ofthis message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediatelyby telephone and return the original messageto us atthe above address via the United States Postal Service. Thank you.


12/08/2008 15:39 FAX 8587591906 Law Off. Michael Conger I4J 001

********************* *** TX REPORT *** *********************

TRANSMISSION OK

TX/RX NO 0556 CONNECTION TEL 16192367215 SUBADDRESS CONNECTION ID ST. TIME 12/08 15:35 USAGE T 03'55 PGS. SENT 25 RESULT OK


16236 SAN DTEGUITO ROAD STE. 4.14

RANCI-lO SANTA FE, CA 92067 MAILING ADDRESS

P.O. BOX 9374 Michael A. Conger RANCHO SANTA FE, CALIFORNIA 92067

(858) 759-0200 FAX (858) 759-1906

CIVIL LITIGATlo.N EMPLOVM"~NTLAW

BllSINESS LAW WIWNGFllL DEATH

SERIOl.JS IN,JURY

Fax Coversheet To: Jan Goldsmith, City Attomey

Office of the City Attorney City of San Diego

Fax No. (619) 236-7215









(858) 759-0200 FAX (858) 759-1906



SERIOUS INJURY

Fax Coversheet To: Jan Goldsmith, City Attorney


Fax No. (619) 236-7215






First transmission is 24 pages (5 page letter and Exhibit 1 thereto), not including the cover sheet.

This message is intended only for the use ofthe individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader ofthis message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communicationin error, please notifY us immediately by telephone and return the original messageto us atthe above address via the United States Postal Service. Thank you.

12/08/2008 15:53 FAX 8587591906 Law Off. Michael Conger I4J 001

********************* *** TX REPORT *** *********************

TRANSMISSION OK

TXlRX NO 0557 CONNECTION TEL 16192367215 SUBADDRESS CONNECTION ID ST. TIME 12/08 15:49 USAGE T 03'28 PGS. SENT 22 RESULT OK


Michael A. Conger

16236 SAN DIEGUITO ROAD STE.4-14

RANCHO SAN1'A FE, CA 92067 MATLlNG ADDRESS

P.O. BOX 9374 RANCHO SANTA FE, CALIFORNIA 92067

(858) 759-0200 FAX (858) 759-1906

CIVIL LiTIGATION EMI>LOYMENT LAW

BUSINESS LAW WRONGF(!L I}EATU

SERJOUS IN.JURY



Fax No. (619) 236-7215




CommentslInstructions:





(858) 759-0200 FAX (858) 759-1906



SERIOUS INJURY



Fax No. (619) 236-7215






Second transmission is 21 pages (Exhibit 2 to Dec. 8th letter), not including the cover sheet.

This message is intended only for the use ofthe individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. Ifthe reader ofthis message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notifY us immediatelyby telephone and return the original messageto us atthe above address via the United States Postal Service. Thank you.


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