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HomeMy WebLinkAbout2000-11-13 City Council (24)TO: C ty HONORABLE CITY COUNCIL City of Palo Alto Manager’s Report 6 FROM:CITY MANAGER DEPARTMENT: HUMAN RESOURCES DATE: SUBJECT: NOVEMBER 13, 2000 CMR: 406:00 APPROVAL OF A RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING CHAPTERS 3 (EMPLOYMENT) AND 4 (TERMINATION OF EMPLOYMENT) OF THE MERIT SYSTEM RULES AND REGULATIONS TO REVISE THE NEPOTISM POLICY, ELIMINATING CERTAIN FAMILY MEMBER EMPLOYMENT RESTRICTIONS RECOMMENDATION This report recommends Council approval of a resolution amending Chapters 3 and 4 of the Merit System Rules and Regulations to revise the Nepotism Policy, eliminating certain family member employment restrictions. BACKGROUND The City’s Nepotism Policy is set forth in Chapters 3 and 4 of the Merit System Rules and Regulations. This policy precludes the employment of relatives within the same City department or division. In 1999, the Nepotism Policy was the subject of a bargaining impasse during negotiations between the City of Palo Alto and the Palo Alto Professional Fire Fighters, Local 1319.. DISCUSSION An arbitration award was made in October1999 (complete text is attached). As a result of this award, immediate family members who are otherwise qualified and are hired, may under certain conditions become employees within the same department. The conditions include that an employee shall not: 1) participate in any part of the hiring process when a member of the employee’s immediate family is an applicant for a position with the City; 2) participate in any part of the promotional process when a member of the employee’s immediate family is an applicant for promotion within the City; or 3) be assigned as a direct supervisor of a member of the employee’s immediate family. CMR: 406:00 Page 1 of 2 The action proposed in this report amends sections 302 (b) and 402 of the Merit System Rules and Regulations to provide that this change in policy become effective for all City departments. RESOURCE IMPACT There will be no cost impact associated with this change. POLICY IMPLICATIONS This recommendation establishes a new policy for employing family members within the same department. ENVIRONMENTAL REVIEW This is not a project under the California Environmental Quality Act. ATTACHMENTS A: Resolution Amending City of Palo Alto Merit System Rules and Regulations, Chapters 3 (Employment) and 4 (Termination of Employment) B: Board of Arbitration Decision and Award, dated October 11, 1999 PREPARED BY: Susan B. Ryersog DEPARTMENT HEAD: CITY MANAGER APPROVAL: qlanager of Employee Relations and Compensation c. ROUNDS Dir~e~tor of Human Resources AUD~ Assistant to the City Manager -, CMR: 406:00 Page 2 of 2 RESOLUTION NO. RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING SECTIONS 302 and 403 OF THE MERIT SYSTEM RULES AND REGULATIONS REGARDING NEPOTISM NOW, THEREFORE, the Council of the City of Palo Alto does RESOLVE as follows: SECTION i. Sections 302 and 403 of the Merit System Rules and Regulations is hereby amended to read as set forth on Exhibit "A" attached hereto and incorporated herein by reference: SECTION 2. The changes provided for in this resolution shall not affect any right established or accrued, or any offense or act committed, or any penalty of forfeiture incurred, or any prosecution, suit, or proceeding pending or any judgment rendered prior to the effective date of this resolution. SECTION 3. The Council finds that this is not a project under the California Environmental Quality Act and, therefore, no environmental impact assessment is necessary. INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST:APPROVED: City Clerk APPROVED AS TO FORM: Senior Asst. City Attorney Mayor City Manager Director of Human Resources Director of Administrative Services 001010 el 0032372 EXHIBIT "A" a)Notwithstanding Section 301, no member of the immediate family of an active Council Member, or a designated employe~, may become an employee during the term of that Council Member or the period of employment of the designated employee. This section does not apply to two members of an immediate family who are authorized to share a single position. b)Notwithstanding Section 301, if a member of the immediate family of a City employee, other than a designated employee, becomes an employee within the same department, as that City employee, the following conditions to such employment arrangement shall apply: No employee shall participate in any part of the hiring process when a member of the employee’s immediate family is an applicant for a position with the City. (2)No employee shall participate -in any part of the promotional process when a member of the employee’s immediate family is an applicant for promotion within the City. (3)No employee shall be assigned as a direct supervisor of a member of the employee’s immediate family. No employee or designated employee shall employ, appoint, recommend for appointment or in any other manner participate or attempt to participate in the hiring, promotion, demotion, termination or discipline of any member of his or her immediate family. (d)For purposes of this section, the following definitions are in effect: (i)"Immediate family" means the spouse, parent, sibling or child of the employee. (2)"Employee" means an individual hired for hourly, regular full-time, regular part-time or contract employment, a director of a department or an individual serving as a member of a City board or commission. (3) 001012 cl 0032394a "Designated employee" means an employee who is a Council- Appointed Officer or Assistant City Manager. It is hereby determined that, for business reasons of supervision, safety, security and morale,, a member of the immediate family of such a designated employee may not be employed within the City. 1 (4)"Department" means a department specified in Chapter 2.08 of the Palo Ai.to Municipal Code. 40--3. Termination; non-disciplinary action. (a)An employee may be terminated by the appointing authority at any time, for inability to perform the duties of the position. Regular employees shall be given a written statement of the reasons for such termination and may appeal such action in the manner provided in Section 1004. (b)If any employee and a Council Member or a designated employee become members of the same immediate family (through marriage or adoption), or if a member of an employee’s immediate family is elected to the City Council or becomes a designated employee, one of the persons must leave City employment or elective office. If the two persons have not made a choice within 30 days of the establishment of the family relationship, or the election to office, or the assumption of the new position, the City Manager shall have sole discretion to choose which family member shall be terminated and shall terminate that person. If the relationship is between a Council Member and a City employee, the employee shall be terminated. (c)If twoemployees, other than designated employees, within the same department become members of the same immediate family (through marriage or adoption), the employees shall notify their department head and the Director of Human Resources. The department head and the Human Resources Department shall enforce the conditions of continued employment of the employees, which are set ’forth in Section 302(b of these Merit System Rules and Regulations. (d)Regular and part-time employees shall be given a written statement of the reasons for termination under this section and may appeal such action in the manner provided in Chapter Ii. (e)For purposes of subsections (b) and (c) of this section, the definitions contained in Section 302(d) of these Merit System Rules and Regulations are in effect. 001012 cl 0032394a 2 EXHIBIT "A" (a Notwithstanding Section 301, no member of the immediate family of an active Council’Member, or a designated employee, may become an employee during the term of that Council Member or the period of employment of the designated employee. This section does not apply to two members of an immediate family who are authorized to share a single position. (b ~ ........if a member of theNotwithstanding Section 301, .....~ .... immediate family of a City employee, other than a designated employee, may not becomes an employee within the same ~~ ~"~-~.]City~ml...................as that em oyee, if the Dircctor of the following conditions to such emplo~ent arrangement shall apply: (1 No employee shall participate in any part of the hirin~ process when a member of the employee’s immediate family is an applicant for a position with the City. (2 No employee shall participate in any part of the promotional process when a member of the employee’s immediate family is an applicant for promotion within the (3 No employee shall be assigned as a direct supervisor of a member of the employee’s immediate family. 001012 c10032394 1 (d) (e) No employee or designated employee shall employ, appoint, recommend for appointment or in any other manner participate or attempt to participate in the hiring, promotion, demotion, termination or discipline of any member of his or her immediate family. For purposes of this section, the following definitions are in effect: (1)"Immediate family" means the spouse, parent, sibling or child of the employee. (2) (3) "Employee" means an individual hired for hourly, regular full-time, regular part-time or contract employment, a director of a department or an individual serving as a member of a City board or commission. "Designated employee" means an employee who is a Council- Appointed Officer or Assistant City Manager. It is hereby determined that, for business reasons of supervision, safety, security and morale, a member of the immediate family of such a designated employee may not be employed within the City. ~--5-~(4) ]’Department" means a department specified in Chapter 2.08 of the Palo Alto Municipal Code. 403. Termination; non-disciplinary action. (a)An employee may be terminated by the appointing authority at any time, for inability to perform the duties of the position. Regular employees shall be given a written statement of the reasons for such termination and may appeal such action in the manner provided in Section 1004. (b)If any employee and a Council Member or a~designated employee become members of the same immediate family (through marriage or adoption), or if a member of an employee’s immediate family is elected to the City Council or becomes a designated employee, one of the persons must leave City employment or elective office. If the two persons have not made a choice within 30 days of the establishment of the family relationship, or the election to office, or the assumption of the new position, the City Manager shall have sole discretion to choose which family member shall be terminated and shall terminate that person. If the relationship is between a Council Member and a City employee, the employee shall be terminated. 001012 c10032394 2 (d (e If two employees, other than designated employees, within the same , become members of the same i~ediate family (through marriage or adoption), the employees shall notify their department head and the Director of Human Resources. The department head and the Human Resources Department shall enforce the conditions of continued employment of the employees, which are set forth in Section 302(b) of these Merit System Rules and Regulations. mak~ a ......~.oo ..........person shall Icavcthe two ~ ...... s invslvcd shall -~ .... ~.........Dcpartment shall not ~---~ ~ ~ ....; ...... haz~ -~ .....~pler for married sou es than for ; or leave City -~-" ~om~}~on~ ~or the reason of Regular and part-time employees shall be given a written statement of the reasons for ~ termination under this section and may appeal such action in the manner provided in Chapter Ii. For purposes of subsections (b) and (c) of this section, the definitions contained in Section 302(d) of these Merit System Rules and Regulations are in effect. 001012 c10032394 3 BOARD OF ARBITRATION DECISION AND AWARD IMPASSE ARBITRATION PROCEEDINGS CITY OF PALO ALTO Employer, and PALO ALTO PROFESSIONAL FIREFIGHTERSASSN. LOCAL 1319, Union Nepotism Policy For the Employer: For the Union: Arbitration Board: Richard Whitmore, Esq. Whitmore, Johnson & Bolanos Mountain View, California Alan Davis, Esq. Davis & Reno San Francisco, California Tony Spitilari Union Member Jay Rounds, City Member Thomas Angelo, Neutral Chair October 11, 1999 Paqe 2 City of Palo Alto and Palo Alto Prof. Firefighters Nepotism Policy SUMMARY This dispute arises out of a bargaining relationship between the City of Palo Alto (hereinafter "Employer" or "City’) and the Palo Alto Professional Firefighters, Local 1319 (hereinafter "Union"), and concerns a bargaining impasse reached during negotiations conducted pursuant to terms of a Memorandum of Agreement (M.O.A.) and the Charter of the City of Palo Alto. The sole matter in controversy involves the Union’s effort to change the City’s Nepotism Policy. These proceedings were conducted pursuant to Article V of the City Charter. (Union Exh. i). STATEMENT OF ISSUES Under the Charter provisions the Board is required to select "whichever last offer of settlement" most closely conforms with "those factors traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of public and private employment." The City’s final offer reads as follows: o.. To maintain the status quo with no change in the current MOA between Local 1319 and the City, and no change in City Merit Rule 302.!/ ~he City’s Merit Rule addresses "Nepotism’ and precludes hhe "spouse, parent, sibling or child" of an employee from employment in the same division or department as the employee. The Rule permits two siblings to be employed in the same division or department only if they are "hourly’ employees, work in different locations and have no supervisory relationship. Page 3 City of Palo Alto and Palo Alto Prof. Firefighters Nepotism Policy The Union’s final offer would create a new contract provision regarding "Employment of Relatives:" Section 4. Employment of Relatives. The City and the Fire Department shall not discriminate against any employee or applicant for employment on the basis of that employee’s or applicant’s relation by blood, marriage or adoption to any other employee or applicant, except as provided in the following procedures for employment, promotion and supervisory relationships of relatives in the Fire Department. The Fire Department may employ relatives of current employees in all positions represented by the Union. For the purposes of this Section 4, "relative" shall be defined as any person who is related by blood, marriage or adoption. By mutual agreement of the parties to the Memorandum of Agreement, the definition of "relative" may include other relatives and/or domestic partners. The following procedures shall govern the employment, promotion and supervisory relationships of relatives in the Fire Department: o No employee of the Fire Department shall participate in any part of the hiring process when a relative is an applicant for a position in the Fire Department. No employee of the Fire Department shall participate in any part of the promotional process when a relative is an applicant for promotion in the Fire Department. No employee of the Fire Department who is a supervisor shall be assigned as a direct supervisor of a relative. The parties stipulated the matter is properly before’the Arbitration Board for resolution. 3 Page 4 City of Palo Alto and Palo Alto Prof. Firefighters Nepotism Policy STATEMENT OF FACTS The facts surrounding this impasse are not in serious dispute, and the controversy rests completely on whether the City’s long-standing nepotism policy should be changed with respect to Fire Department employees. The Union argues that all ~benchmark agencies" (those traditionally compared with the City as to terms and conditions of employment) permit the employment of relatives. In negotiations and at hearing~the Union also asserted the existing policy was discriminatory, damaged the Department’s efforts to build diversity, and was contrary to merit rules supporting equal opportunity for qualified employees and applicants. These claims were addressed in the evidence and arguments provided by the Union at hearing and in its post-hearing brief. The City contends the Union has failed to carry its burden of showing a change in existing policy is justified. It denies its nepotism policies are discriminatory under either Federal or State law, and argues that similar policies have been upheld in a variety of forums. It argues that adoption of the Union’s proposal would hinder the City’s ability to prevent illegal discrimination and cronyism in the public service, and would exacerbate Page 5 City of Palo Alto and Palo Alto Prof. Firefighters Nepotism Policy existing employee concerns regarding favoritism and safety issues .~/ In this latter regard the Union conducted a "Work Climate Surve!’ within the unit and some 85% of the firefighters who responded believed "favoritism" affected Department efficiency and 75% believed it affected "safet!’ issues. The Union disputes both the import and weight to be afforded the survey. In any event, the City argues it would be "foolish to open the floodgates of nepotism" in light of existing unit employee concerns. (City Brf. pg. 8). As to the "benchmark" agencies cited by the Union, the City argues the data is not appropriate in resolving the type of policy question at issue here. It distinguishes the evidence on the basis there is no evidence to show other departments have the type of ~work climate" present in Palo Alto, and argues that comparability evidence is of little assistance outside of financial issues. (City Brf. pgs. 9,10, citing Indianapolis Power & Light and Electrical Utility Workers Union, 73 L.A. 512 (Anderson, 1979), where Arbitrator Anderson suggested this type of policy decision Among other things the City points out that the Union’s proposal would not preclude employees from interanl lobbying for relatives being considered for hire or promotion. 5 Paqe 6 City of Palo Alto and Palo Alto Prof. Firefighters Nepotism Policy was a "management decision" that should not be "interfered with" by arbitrators.) Further, the City contends that exempting the Fire Department from what is otherwise a citywide policy would create an unnecessary and disruptive difference in working conditions. A hearing on the impasse was conducted on March 12, 1999, at which time the parties were afforded a full opportunity to present evidence and argument regarding their respective positions. Helpful post,hearing briefs were submitted on or about May 3, 1999 and the matter was submitted.~/ DISCUSSION In agreement with the City, the "burden" in this case rests with the Union. This is so because it seeks to change a twenty-year policy that has not spawned any concrete personnel problems. What this means, in practical terms, is that the union must provide sufficient evidence to demonstrate its proposed change is warranted in light of the standards by which the Board is to be governed. In order words, the Board must find "those factors traditionally taken into consideration in the determination This opinion was delayed due ~o my health problems and I apologize to the parties for any inconvenience caused as a result. 6 Page 7 City of Palo Alto and Palo A~to Prof. Firefiqhters Nepotism Policy of wages, hours, and other terms and conditions of public. and private employment~ support the Union’s position. Initially, the City has raised a number of valid points regarding the necessity of continuing its nepotism policy. For one thing, the policy does provide insulation against employees or applicants seeking to challenge non- advancement or hiring on the basis that a "relative" was hired. For another, to the extent the policy cuts off an area of perceived favoritism it serves to enhance belief in the merit system. And, of course, every employer prefers to maintain a consistent, wall-to-wall, personnel policy so as to avoid a proliferation of personnel policies within its workforce. Also, I agree with the City’s argument that the policy is not discriminatory within the meaning of applicable law. While the Union’s objectives regarding diversity are laudable, a fairly applied nepotism policy is not illegal. These and other arguments raised by the City, present strong, cogent arguments in favor of retaining current City nepotism rules. The Board’s mandate is to consider "traditional factors" in resolving an impasse. One such factor is the practice and experience of other, similar jurisdictions. In this regard the Union has presented compelling evidence .~a@e 8 City of Palo Alto_and Palo Alto Prof. Firefighters Nepotism Polic? that "benchmark" agencies in other municipalities operate without strict nepotism rules and have no discernable problems in doing so.~/ The City argues comparability evidence is not as persuasive in "polic!’ disputes as it would be with respect to financial matters. The problem is the standards that govern the Board’s deliberations do not limit comparability evidence to financial issues nor direct they should be afforded lesser weight outside that area. Thus, the Board can’t ignore the practice and experience of other jurisdictions in dealing with the issue of nepotism.~/ The Board has also considered the results of the Union’s survey. As the City points out, the survey suggests thereis a concern among unit employees that favoritism exists within the Department. The question for the Board, however, is whether those complaints have substantive merit. There is a dearth of information to suggest there is merit to the bargaining unit’s concern~ while considerable Eight other departments have no nepotism policies, while three have limited rules. (Union Exh. I0).5/ Nor does the fact that some arbitrators have characterized such policies as ~management rights" warrant a limited consideration by the Board. The fact is the policy is a condition of employment and has been stipulated aS properly before the Board for resolution. It follows that we are obligated to consider the proposals regardless of its "policy’ nature. Page 9 City of Palo Alto and Palo Alto Prof. Firefiqhters Nepotism Policy affirmative evidence exists to indicate it is lacking in substance. There have been no grievances filed over the alleged favoritism, let alone any that have been sustained. Hiring and promotional procedures are designed to avoid subjective influences and include third par~y participation and testing to determine qualifications. And both parties believe the Union’.s nepotism proposal can be fairly implemented. This does not mean the reality of the workplace must be ignored, and the fact is employees believe there are favoritism factors at work in Palo Alto. But it is equally clear that many employee groups, especially those with an opportunity to kibitz, tend to create complaints where none really exist. Here the survey was prompted by an unfounded claim that the City Manager used firefighters for personal assistance at her home, hardly an attack on unfair personnel policies. Moreover, none of the complaints received provided details to suggest how favoritism adversely affected working conditions.Z/ In the Board’s view the parties need to address the perception of the bargaining unit, even if it does not In fact, it remains unclear how "safety’ has been compromised by the alleged favoritism since no details were provided in the survey or at hearing. 9 Page I0 City of Palo A~to and Palo Alto Prof. Firefighters Nepotism Policy reflect the reality of the situation. The solution, however, does not require that otherwise meritorious proposals be rejected. Instead employees with concerns should be encouraged to grieve or otherwise complain about perceived violations so as to permit the parties to the M.O.A. to investigate and confirm the propriety of a hiring or promotional action. Further, employees and managers should report perceived merit violations, including the type of "subtle pressuresH that might arise from employees lobbying on behalf of relatives. The City has also expressed concerns over the potential for litigation under the nepotism policy. While it is true that the potential will be increased, there is no reason to believe such actions will have success. So long as the applicable procedures are followed, and merit principles govern the decisional process, the City need not fear liability from such litigation. Finally, the City’s objections appear to be based on speculation as to what might happen under the proposal. Since the City for some 20 years has operated under the current work rule there is no intra-City experience to guide the Board. However, it is’evident that comparable jurisdictions have worked under modified nepotism policies i0 Paqe Ii City of Palo Alto and Palo Alto Prof. Firefighters Nepotism Policy without problem, and there is no reason for the Board to believe the City will encounter a different experience. In considering the Union’s final offer the Board notes that it contains protections against the obvious conflicts that might arise where relatives are employed in the same department. It is equally clear from the record that the Union’s proposal does not present any insurmountable administrative problems. Therefore, the proposal itself is not objectionable.~ Finally, the Board appreciates that adoption of the Union proposal would carve out the Department from what would otherwise be a citywide rule regarding nepotism. It is not unusual for different bargaining units to develop different conditions of employment as a consequence of negotiations, so the loss of consistency is not an inherently problematic event. Moreover, this is not a case where employees who work together.are subject to different rules, since the claus~ is limited to one Department. The Board therefore finds the Union’s proposal should be adopted on the basis that it satisfies traditional factors used in the private and public sectors for the resolution of bargaining disputes. Moreover, if the parties discover the proposa! needs "fine tuning~ to obviate unanticipated operational problems, that can be ii Paqe 12 City of Palo Alto and Palo Alto Prof. Firefighters Nepotism Policy accomplished in two ways. First, the Chief will have considerable operational discretion in the implementation of the proposal, a°fact both he and the Union acknowledge. Thus, by practice the parties can insure the Union’s proposal is fairly applied. Second, nothing precludes the parties from revisiting the rule in future negotiations, where they will have the benefit of experience to guide -their proposals. For the above reasons the Union’s offer is accepted and shall become part of the parties M.O.A. 12 page 13 city of Palo Alto and Palo Alto Prof. Firefighters Nepotism Policy AWARD The Union’s final offer is adopted. October ii, 1999 Thomas Chair Union Member ( ~ oncur ( ) dissent Jay City Member ( ) concur (~dissent 13