The city of San Luis Obispo is facing a grievance from the fire union after the City Council approved a cut to their overtime in favor of hiring three full-time firefighters — a trade-off the fire chief says will provide full staffing on each shift at no extra cost to the city.
The union argues that the city violated its contract by not meeting with them prior to the change.
The dispute comes as the city also faces a federal lawsuit — filed by two dozen union members in November — related to overtime and evaluates the results of an investigation into whether a promotional video shot by the fire chief violated city sexual harassment policies. The investigation followed an internal complaint by a union member.
These challenges have created tensions between the city and union, though both parties told The Tribune that they are committed to working it out without reducing service.
“While it is certainly not ideal to have a pending grievance, lawsuit and complaint, I remain committed to healthy, productive and respectful dialogue so we can focus on our areas of agreement in providing service to our community,” fire Chief Garret Olson said.
In a joint statement to The Tribune, union President Matthew Polkow and Vice President James Witt said department emergency personnel are dedicated firefighters and that everything else, including union membership, “comes a far distant second.”
In the past five years, overtime pay made up about a quarter of the Fire Department’s total staffing costs. Looking at it another way, total overtime for emergency fire personnel averaged $1.9 million per year in a city with a total annual budget of about $71.3 million.
International Association of Firefighters Local 3523 leadership and city officials say they have agreed to discuss a possible resolution to the grievance before scheduling a hearing with an arbiter.
The council approved the three new positions in June when the department already had three vacancies. Those vacancies have since been filled, but the three new positions remain empty as the city considers how recent changes in pension costs will affect the cost-effectiveness of the original plan.
The formal complaint was filed in July by a person whose name is redacted in records provided to The Tribune through a public records request.
The author contends the city violated the contract with the union, which requires city officials to “meet and confer” with the union “if it becomes necessary for the city to exercise its management right” to change staffing levels specified in the contract — 12 firefighters.
A new 2016-17 contract adopted in November maintains that number, but it says nothing that precludes the chief from hiring additional full-time staff to meet minimum daily staffing needs.
City Attorney Christine Dietrick said it’s the city’s position that staffing levels are part of management rights and outside the scope of bargaining requirements.
Hiring three more firefighters would increase emergency response staffing by one firefighter per shift to cover daily absences due to leave time, training or injury time off, Olson said. The department typically fills these by paying another firefighter overtime to cover the shift.
Olson said that regular pay for the new hires would not cost the city more than the current overtime practice does, but it would almost guarantee a daily staff roster of 14, which both parties agree is optimal for logistical and financial purposes.
In his report to the council, Olson wrote that “excessive overtime” by existing staff was “creating safety issues.” He cited calendar year 2014, when one firefighter worked a total of 5,300 hours, or the equivalent of 1.8 firefighter positions.
“This is an excessive number of hours and has the potential to impact employee safety due to fatigue, exacerbates the number of employees who volunteer to work extra hours, and could be relieved by this program,” the report states.
Olson concluded that the new hires would be cost-neutral based on 2015 staffing levels. If the three new hires were in place then, the department would have been shy a firefighter per shift just a few days of the year instead of nearly every shift, he said.
“I don’t begrudge my firefighters the overtime they earn,” Olson said. “They earn it because they’re doing their job. This is not intended to be a means to reduce excessive earnings in the Fire Department. It’s about efficiency in operations.”
He said similar programs in his two previous fire departments were successful in filling daily vacancies without increasing staffing budgets.
The union said it only learned of the proposal two months before Olson brought it before the City Council.
“At no time was Local 3523 included in any discussions or consulted regarding the many assumptions which are contained in the (program),” Polkow, the union president, wrote in a letter to the council in June.
Polkow wrote that since at least 2005, firefighters have stuck to mutually agreed upon mandated staffing levels and cooperatively staffed vacant positions. The practice has “contributed to significant savings to the city in employee roll-up costs such as worker compensation and the CalPERS unfunded (pension) liability,” he wrote.
No evidence exists to support Olson’s claim that overtime has increased injuries or illness to firefighters, according to the union.
Polkow noted in his letter that Olson, in calculating the cost-neutrality of the three new positions, relied on staffing numbers that included the three vacancies that are now filled. The union wants a “fresh” analysis when staffing is at 100 percent.
An anticipated reduction in investment return, based on a CalPERS decision in December, increases the city’s share of pension payments for its public safety union members. That change will affect the cost-neutrality of the program, Olson said, so city officials are conducting another analysis before filling the three new firefighter positions.
In most cities, firefighters and police officers rank alongside department heads as the highest-earning employees, largely because of overtime pay.
Since 2012, overtime has been awarded to firefighters, engineers and captains for hours worked in excess of their 24-hour shifts and/or in excess of 182 hours during their 24-day pay cycle.
In total, Fire Department staff earned more than $7.6 million in the fiscal year that ended June 30, 2016. Of that, more than $2.1 million — or 28.2 percent — was overtime pay.
The year before, fire staff earned about $1.9 million in overtime, or 26.8 percent of their total payroll, up from $1.7 million in fiscal year 2013-14, when overtime accounted for 24.1 percent of total payroll.
The city doesn’t pay all of the overtime costs. Some overtime occurs when firefighters assist other agencies in “mutual aid” situations, often in other counties. When that occurs, San Luis Obispo is reimbursed for the overtime they earn, as well as overtime paid to those in San Luis Obispo who backfill for them when they’re gone. Those costs are reimbursed by the jurisdictions the San Luis Obispo department aids.
Of the $1.7 million paid in overtime in fiscal year 2013-14, for example, $456,288 was reimbursed to the city for mutual and automatic aid calls, city records show.
The overtime compensation places fire employees among the best-paid in the city.
In fiscal year 2015-16, 24 of the city’s 50 highest-paid employees were Fire Department staff, including Olson, former Assistant Chief Jeff Gater, all three battalion chiefs, 10 fire captains, two firefighters and seven engineers, according to city records. The 26 other top earners included 16 police officers and 10 department heads.
The 10 highest earners of overtime in the city last fiscal year were all Fire Department employees, with a combined $768,901 in overtime pay. The department’s highest-paid employee earned the most in overtime pay. The fire captain, who has been with the department for 16 years, made a total of $217,822, including $95,854 in overtime.
The Fair Labor Standards Act states that an employee’s regular rate of pay includes cash payments given in lieu of health coverage. The lawsuit alleges that between 2013 and 2016, the city excluded those payments when calculating the employees’ overtime rates.
The lawsuit cites a federal appellate ruling from June that found in-lieu payments are to be factored into an employee’s pay rate.
The firefighters are seeking to recover three years’ worth of unpaid overtime — an amount not listed in the lawsuit — as well as damages and attorney fees. They are seeking an injunction barring the city from continuing the practice. A hearing date had not been scheduled as of Tuesday.
The firefighters, engineers and fire captains named in the lawsuit earned about $3.3 million in overtime between fiscal year 2013-14 and fiscal year 2015-16, according to city records.
Despite the grievance, lawsuit and labor negotiations that lasted more than 10 months, tensions between fire personnel and management had been held mostly under wraps.
The event, which Olson emceed, included the screening of a video that attempted to riff on the stereotype of the “sexy firefighter.” Firefighter Erik Baskin filed a complaint, calling the video shot by Olson using a body camera, offensive and a violation of city sexual harassment policies.
Both Olson and City Manager Katie Lichtig, who also appears in the video, have apologized.
The city hired a Santa Ana-based law firm to investigate the complaints at a cost ranging between $15,000 and $50,000. The investigator’s confidential report was given to the city this week and is now under review, said Dietrick, the city attorney.
If the city determines any laws or policies were violated, the City Council will review any actions related to Lichtig, and an “uninvolved department head” will decide whether any action should be taken regarding Olson, Dietrick said.