HomeMy WebLinkAbout21 - Civil Service System & Other Governing DocumentsCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 21
April 28, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Terri L. Cassidy, Human Resources Director
ext.3303, tcassidy @city.newport- beach.ca.us
David R. Hunt, City Attorney
ext. 3131, dhunt @city.newport- beach.ca.us
SUBJECT: Review of the Civil Service System and Other Governing Documents
ISSUE:
Should the City Council direct an outside consultant to work with the City to conduct a
review of the governing documents of the City's Civil Service System and other sources as
a result of the Civil Service Board's investigation into the Police Department's promotional
process?
RECOMMENDATION:
The Human Resources Director and the City Attorney requests City Council authorization
to conduct an independent review of the governing documents of the City's Civil Service
System and other sources in order to determine areas needing clarification, revision and
elimination of conflict and to clarify the primary authority pertaining to employment of its
civil service employees.
BACKGROUND:
The Civil Service Board is currently conducting an investigation at the request of the Police
Management Association (PMA) into promotional practices within the Police Department,
Exhibit A. In that context, the Office of the City Attorney issued a letter dated April 3,
2009, preliminarily concluding that the City's Civil Service Ordinance, Ordinance No. 866,
was not followed in all aspects with respect to the latest recruitment of the City's Chief of
Police, Exhibit B. Given that activity and in order to be certain that all areas of the City's
employment policies, rules and practices within its Civil Service System are in full
compliance with state and federal employment laws and standard personnel practices, a
thorough review of all of these governing documents is prudent at this time. The scope of
the requested review is detailed in Exhibit C.
Page 2
The following documents should be reviewed for their interrelationships, the order of
governance, confirmation of state and federal law compliance and proven employment
practices: City Charter, City Municipal Code, City Council Policies, City Ordinances,
Civil Service Rules, Employer - Employee Relations Resolution, Employee Policy
Manual, Police and Fire Departmental Policy Manuals and current Memoranda of
Understanding (MOU) with Police Employee Association, Police Management
Association, Fire Fighter Association, Fine Management Association and Lifeguard
Management Association. Documents attached as Exhibit C -1.
The reviewer would be retained in a special counsel relationship with and through the
Office of the City Attorney. The reviewer's findings will be presented to the Human
Resources Director, City Manager and City Attorney and any recommendations would be
made to the City Council, Civil Service Board or City Manager, as appropriate. Some
changes may need to be negotiated with our bargaining units.
We recommend commencing a review as described above utilizing the services of
Bruce Praet, Attorney with the firm of Ferguson, Praet and Sherman. Mr. Praet has
extensive experience with civil service employees, related employment issues and he
has assisted our police department in drafting their proposed revised departmental
manual through his standard Lexipol model that has been adopted by police
departments throughout the state of California. He experience in policy review for
public safety departments is extensive and his hourly rate is $185 dollars per hour. His
complete resume is attached as Exhibit D.
FUNDING AVAILABILITY
Funds which cover the recommended expenditure are in the City Attorney's Budget No.
0510 -8080 and the contract amount is not to exceed $25,000.
Prepared by:
Terri L. Cassidy David R. Hunt
Human Resource Director City Attorney
Attachments:
Exhibit "A" Civil Service Board Resolution
Exhibit "B" City Attorney Letter, April 3, 2009
Exhibit "C" Scope of Review
Exhibit "C -1" List of Documents
Exhibit "D" Resume, Bruce Praet
EXHIBIT A
RESOLUTION OF THE CIVIL SERVICE BOARD OF THE CITY
OF NEWPORT BEACH DIRECTING AN INVESTIGATION OF
POLICE PROMOTIONAL PROCESSES AS REQUESTED BY
THE NEWPORT BEACH POLICE MANAGEMENT
ASSOCIATION UNDER CIVIL SERVICE BOARD RULE 501.4
WHEREAS, the Newport Beach Police Management Association ( "PMA ") is an
organized and recognized City employees' association;
WHEREAS, Civil Service Rule 501.4 states, in pertinent part, "The Board shall make
any investigation concerning the administration of personnel in the Civil Service and
reports its findings to the City Council and City Manager when requested to do so by the
City Council, the City Manager or by an organized City employees' association;"
WHEREAS, the PMA made a request for an investigation of the police promotional
practices via correspondence from their counsel dated December 22, 2008;
WHEREAS, the Civil Service Board ( "CSB ") has considered the issues raised by the
PMA and its request at its January 5, 2009 meeting, briefly heard testimony at its
February 5, 2009, March 2, 2009 meeting, and at its March 16, 2009 special meeting;
NOW THEREFORE, the CSB hereby resolves as follows:
SECTION 1: An investigation of the issues raised by the PMA that are within the
jurisdiction of the CSB shall be conducted pursuant to the Scope of Investigation
attached hereto as Exhibit "A" and hereby incorporated by reference. This investigation
is being conducted by the CSB pursuant to the CSB's authority.
SECTION 2: The Office of the City Attorney ( "OCA ") is directed by the CSB to retain
James R. Blaylock to conduct an investigation as defined under Section 1. The
Investigator is appointed to conduct this investigation through the Office of the City
Attorney on behalf of the CSB and pursuant to the CSB's authority. The investigator is
appointed to conduct an inquiry of the issues and determine all facts that are relevant to
answering the questions set out in the scope of investigation. The investigator shall. be
retained by, and coordinate his efforts through, the OCA.
SECTION 3: The OCA and Secretary of the Board shall provide the investigator with all
necessary support and assistance. The Secretary of the Board shall be the primary
point of contact for the investigator to the CSB. The OCA shall perform the duties and
fulfill the role of legal advisor to the investigator and shall render all legal opinions that
arise out of the facts that are investigated. The CSB Secretary and OCA shall keep the
CSB fully apprised of the progress of the investigation and of all communications from
the investigator regarding all substantive issues to be addressed.
FRI
SECTION 4: If the investigator discovers facts during the course of this investigation
that he believes, in his professional judgment, may warrant further investigation but fall
outside of the express scope of this investigation, he shall bring them to the attention of
the OCA and Secretary of the Board. If the facts raise issues within the jurisdiction of
the Board, the OCA and the Secretary of the Board shall present them to the Board and
the Board shall decide whether or not to increase the scope of the investigation. If the
facts raise issues that are not within the jurisdiction of the Board, the OCA shall
determine the appropriate course of action.
Section 5: The investigator shall ultimately report all findings, conclusions, and
recommendations to the Board in writing. The written report shall be submitted to the
Board through the OCA and the Secretary of Board.
PASSED, APPROVED AND ADOPTED THIS 16th DAY OF MARCH, 2009
AYES, CIVIL SERVICE BOARD MEMBERS t-eye 51%7t.y i u -.f�fC
NOES, CIVIL SERVICE BOARD MEMBERS
ABSENT CIVIL SERVICE BOARD MEMBERS
CIVIL SERVICE BOARD:
Bert Carson, Chairman
ATTEST:
Secretary of the Civil Service Board
APPROVED AS TO FORM:
O FI OF T E CITY ATTORNEY
David R. Hunt, City Attomey
I
SCOPE OF INVESTIGATION
General &ooe oflxves& -adon:
Do the current Police promotional procedures, as used from mid -2005 through 2008, achieve the
purpose of the Civil Service System through providing °... an equitable and uniform procedure
for dealing with personnel matters; to attract to the City service the most competent persons
available; to assure that the appointment and promotion of employees will be based on merit and
fitness; and to provide reasonable security for employees,"' or has the system been managed
during this time so as to: (1) allow individuals to exert greater discretion then is warranted, thus
marginalizing the objectivity necessary for a process designed to foster fairness and merit, and
(2) evidence a disregard provisions of the Newport Beach Municipal Code, Civil Service Board
("CSB'J Rules and/or Council Policy? If any of the latter propositions are true, what, if
anything, should be done to address the issue(s) in the context of the Civil Service Systan?
Ukiwam Onestions Posed:
The following are specific issues raised that call into question the appropriateness ofthe process:
1. Was City Manager's authority exceeded and Council Policy F -20 violated by the entering
into ofthe Agreement Regarding Post- retiremedt Continued or Part-time Employment for
NBPMA Members C Continued Employment Agreement") in September of 2005, and, if
so, what are the consequences of that conclusion, and what, if anything, should be done
to address the issue in the context ofthe Civil Service Sysu m?
2. Has the application ofthe previsions of the Continued Employment Agreement affected
the promotional process of the Police Department in such a way as to make it inconsistent
with the purpose of the Civil Service System, and, ifs% what if anything, should be done
to address the issue in the context of the Civil Service System?
3. Are the promotional process changes instituted in March of 2006, maluding but not
limited to numerical rating changes, the "Rule of Eight" and "Whole Number Scoring,"
consistent with the purpose of the Civil Service System, and, if not, what, if anything,
should be done to address the issue in the context of the Civil Service System?
4. Were current promotional lists for Captain, Lieutenant, and Sergeant vacated in early
2006 in a manner consistent with Civil Service Rules, and, ifaot, what, if anything,
should be dote to address the issue in the context of the Civil Service System?
S. Is it appropriate for the appointing authority to sit on oral boards for interviewing
promotional candidates, and, if not, what, ii'anything, should be done to address the issue
in the context of the Civil. Service System?
6. Was the 2007 remuitmeat for the position of Chief of Police conducted consistent with
Newport Beach Municipal Code, the CSB Rules and purpose, and, if not, what, if
anything, should be done to address the Issue in the context of the Civil Service System?
7. Were the two three month extensions oftbe Police Capt Promotional BltgHnhty lists in
2008 inconsistent with the Newport Beach Municipal Code, the CSB Rules or the
purpose ofthe Civil Service System, amh, ifnot, what, if anything, should be done to
address the issue in the context of the Civil Service System?
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CITY OF NEWPORT BEACH
FpR
VIA FACSIMILE (909) 985 -3299 &
U.S. FIRST CLASS MAIL
Sanjay Bansal, Esq.
Lackie, Dammeier & McGill
367 North Second Avenue
Upland, CA 91786
Aaron C. Harp, Esq.
Office of the City Attomey
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
OFFICE OF THE CITY ATTORNEY
David R. Hunt, City Attorney
April 3, 2009
RE: NBPMA Request for Civil Service Board Investigation
A08-00224
Gentlemen:
As you know, the Newport Beach Police Management Association ( "PMA ") requested an
investigation of numerous issues arising out of the promotional process and employment
practices of the Police Department. We have recommended the investigation proceed
and the Civil Service Board ( "CSB ") has appointed an investigator, James Blaylock, to
conduct the investigation pursuant to the agreed upon Scope of Investigation. We have
met with Mr. Blaylock, provided him with all the information we have available in our office
and the investigation is proceeding.
There are two'specific legal issues posed as ultimate questions 1 and 6 of the Scope of.
Investigation. They address issues related to the City Manager's entering into a "Post -
Retirement Continued or Part-Time . Employment Agreement' with the PMA and the
appropriateness of the Chief of Police recruitment conducted in 2007.
These two questions raise specific legal issues that can, and need to be, addressed at the
outset of the investigation. We are prepared to opine on the legal issues related to these
two questions as noted below. At this time, however, we seek your input before finalizing
an opinion regarding them.
3300 Newport Boulevard • Post O_ fiice Box 1768 • Newport Beach, California 92658 -8915
Telephone: (949) 644-3131 -Fax:— (949) 644 -3139 • www.city.newport- beach.ca.us
Sanjay Barisal
Aaron Harp
April 3, 2009
Page 2
COUNCIUMANAGER FORM OF GOVERNMENT
Both legal issues revolve around procedures by which the City hires employees and
contracts for services. Each issue, to one extent or another, raises a question of whether
the broad powers granted to the position of City Manager were correctly exercised in this
area of its responsibility. As with all such questions, the analysis must begin with the City
Charter.
The Newport Beach City Charter ( "Charter') establishes a Council /Manager form of
government. (Charter, Article III, Section 300.) Full administrative authority and
responsibility is vested by the Charter in the City Manager as the chief administrative
officer" of the City. (Charter, Article V, Section 500.) As chief administrative officer, the
Charter gives the City Manager the authority to appoint all department heads (Charter
Section 504(a)) 1 and to exercise control over all administrative offices and departments of
the City (Charter Section 504(h)).2
The Charter's provisions also address the issue of contracting authority within the City.
Section 421 of the Charter specifically sets out the requirements for the City to enter into of
a binding contract. Section 421 states:
The City shall not be bound by any contract, except as
hereinafter provided, unless the same shall be made in writing,
approved by the City Council and signed on behalf of the City
by the Mayor and City Clerk or by such other officer or officers
as shall be designated by the City Council. Any of said
officers shall sign a contract on behalf of the City when
directed to do so by the City Council.
By ordinance or resolution the City Council may authorize the
City Manager to bind the City, with or without a written
contract, for the acquisition of equipment, materials, supplies,
labor, services, or other items included within the budget
approved by the City Council, and may impose a mandatory
limit upon such authority.
The provisions of this Section shall not apply to the services
rendered by any person in the employ of the City at a regular
salary.
Finally, the exercise of power by the City Manager related to public employment is
"subject to the Civil Service provisions of the City." (NBMC Section 2.08.060.) The City's
' The City Manager's duty and the power to appoint department heads expressly includes the Police and
Fire Chiefs pursuant to NBMC Section 2.24.100(c).
2 (See also, Newport Beach Municipal Code ( "NBMC ") Section 2.12.020)
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April 3, 2009
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Civil Service System covers the Police and Fire Departments of the City. Article VIII of
the Charter enables the Civil Service System. Section 802 of the Charter applies the Civil
Service System to "all full time, regular and permanent positions of employment on the
Police and Fire Department of the City." Subsection 2 of Section 802 goes on, however,
to expressly except all Department Heads from the system. Consistent with the Charter,
Section 2.24.020 of NBMC recognizes that "those positions excluded by Section 802 of
the City Charter" are excepted from the Civil Service System. Furthermore, NBMC
Section 2.24.100, subsection C, expressly directs that the selection of the Police Chief
and Fire Chief shall be made by the City Manager'3
It is in the context of the City Manager's authority to administer all aspects of the City's
business that we analyze the specific legal questions that were posed.
CONTINUED EMPLOYMENT AGREEMENT
The ultimate question as to the Continued Employment Agreement was articulated as
follows:
Was City Manager's authority exceeded and Council Policy F-
20 violated by the entering into of the Agreement Regarding
Post - Retirement Continued or Part-Time Employment for PMA
Members ('Continued Employment Agreement ") in September
of 2005, and, if so, what are the consequences of that
conclusion, and, what if anything, should be done to address
the issue in the context of the Civil Service system?
Before analyzing the law governing the authority to contract, one must ask what the
Continued Employment Agreement is. It is written in the language of a contract between
the City and the PMA; however, one could easily argue it creates no rights in anyone,
except rights on the part of PMA members to "request permission of the Chief of Police." It
is also written in the language of a "program" and refers to its provisions as "this section,"
implying it is part of a larger agreement. Regardless of this ambiguity, in the end, the
ultimate question is what, if any, binding effect the Continued Employment Agreement has
on the City. It will, therefore, be analyzed in terms of its ultimate effect, addressing what, if
any binding power it has on the City itself.
As with all such questions, the analysis begins with the City's Charter. Charter cities
derive their authority directly from California Constitution Article XI. Article XI grants
Charter cities supreme authority in the area of municipal affairs. (Hannan v. City and
County of San Francisco (1972) 7 Cal.3d 150, 161.) This plenary authority includes the
right to designate the mode for municipal contracting. (Loop Lumber Company vs. Van
Loben Sels (1916) 173 Cal. 228.) Charter cities may also exercise authority conferred
3 As discussed further below, the selection process is governed by the provisions of the ordinance.
Sanjay Bansal
Aaron Harp
April 3, 2009
Page 4
upon them by general laws, provided it is not inconsistent with the Charter. (Hubbard vs.
City of San Diego (1976) 55 Cal. App. 3d 380.) As such, the terms of the Charter of the
City of Newport Beach govern whether or not a contract may be entered into and sets forth
the requirements for entering into contracts.
Charters that authorize a City to contract also provide the measure of the power to
contract. (Dynamic Industries Company vs. City of Long Beach (1958) 159 Cal. App. 2d
294.) A contract executed in a manner not authorized by statute or charter is
unenforceable against the City. (Reams vs. Cooley (1915) 171 Cal. 150.) A City cannot
be held liable in quasi- contract or through estoppel when the Charter's provisions for
contracting have not been complied with. (City of Oakland vs. Bums (1956) 46 Cal. 2d
401; Lemoge Electric Company vs. San Mateo County (1956) 46 Cal. 2d 659; San
Francisco International Yacht & Group vs. City and County of San Francisco (1992) 9 Cal.
App, 4th 672.)
An analysis of the Continued Employment Agreement on its face demonstrates it was not
entered into consistent with the provisions of the Charter governing authority to contract.
Section 421 requires approval of the City Council and the signatures of the Mayor and the
City Clerk on all contracts. The Continued Employment Agreement was executed by
Robert McDonell as Chief of Police, Homer Bludau as City Manager, and John Desmond
as President of the PMA, not the Council or the City Clerk. Additionally, it was not
excepted from these requirements of the Charter under the last sentence of the section as
applying to the services of a person in the employ of the City at a regular salary. Thus, the
Charter's requirements for a binding contract were not met.
Additionally, when analyzed as an agreement between a labor organization and the City, it
has no binding effect on the City. The terms of the Continued Employment Agreement
essentially demonstrate that it was entered into as if it was a side letter to a labor
agreement. Only the Council, however, may approve a labor agreement. (City Council
Resolution 2001 -50; Government Code Section 3505.1; Bagley vs. City of Manhattan
Beach (1975) 18 Cal. 3d 22; Long Beach City Employees' Association vs. City of Long
Beach (1977) 73 Cal. App. 3d 273.) Furthermore, Council Policy F -14 governing authority
to contract for services does not authorize the City Manager to execute such an
agreement. As such, the Continued Employment Agreement has no binding power over
the City as a labor agreement.
In addition, the Continued Employment Agreement is inconsistent with the spirit of Council
Policy F -20, which governs the entering into of continuing employment agreements with
retired City employees. Council Policy F -20 states in pertinent part:
PURPOSE
To establish a city policy regarding contracting with former city
employees.
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Aaron Harp
April 3, 2009
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POLICY
When not more than five years have passed since a person
who is a former City employee has left service with the City:
1. All professional services contracts with former city
employees or temporary employment contracts with retiring or
former city employees shall require approval of the City
Council....
(Adopted November 10, 1997; amended March 9, 1998; amended March 22, 1999;
amended April 9, 2003; formerly J -1.) Thus, the provisions of Council Policy F -20 require
approval by the City Council before any continuing employment agreement can be entered
into with a former City employee.
The Continued Employment Agreement, however, did not provide for Council approval of
any agreements with former employees. Instead, it assumed the Council would not have
to approve future agreements by giving full discretion to the Chief of Police for entering
into the subsequent agreements. As such, the Continued Employment Agreement is
inconsistent with the letter and spirit of Council Policy F -20.
Since the Agreement was not entered into pursuant to the provisions of the Charter and it
violates the spirit of Council Policy F -20, it is not binding on the City and no valid contract
was formed. (San Francisco International Yacht & Group vs. City and County of San
Francisco (1992) 9 Cal. App. 672, 683 -684.) As a result, the Continued Employment
Agreement has no binding effect on the City, it not having been entered into in a manner
consistent with the Charter, ordinances, and regulations of the City of Newport Beach.
The question then becomes what are the consequences that result from this failure to form
a contract? The law is clear on this point. The agreement is completely without force or
effect and is unenforceable even in equity. "When a municipal charter contains an
express limitation on the manner in which a city may contract, the city is bound only by the
contracts executed in accord with the charter provision. When there has been no
compliance with the relevant charter provision, the city may not be liable in quasi - contract
and will not be estopped to deny the validity of the contract." (San Francisco International
Yacht & Group, supra, 9 Cal. App. 4th 683, 684.)
The Agreement is not "voidable." Where there is a violation of an underlying charter
provision establishing authority to contract, a contract in and of itself is "void" and has no
force or effect as opposed to "voidable." As stated by Black's Law Dictionary,
That also was the practice. Seven agreements were entered into between the Department and retiring
employees pursuant to the terms of the Continued Employment Agreement, though one was withdrawn.
None of these agreements sought approval of the Council.
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Aaron Harp
April 3, 2009
Page 6
There is [a] difference between the two words "void" and
,'voidable ": void in the strict sense means that an instrument
or transaction is nugatory and ineffectual so that nothing can
cure it; voidable exists when an imperfection or defect can be
cured by an act or confirmation of him who could take
advantage of it. ... But the distinction between the terms
"void" and "voidable," in their application to contracts, is often
one of great practicable importance; and whenever entire
technical accuracy is required, the term "void" can only be
properly applied to those contracts that are of no effect
whatsoever, such as a mere nullity, and incapable of
confirmation or ratification.
(Black's Law Dictionary (6th ed. 1990) p.1573, Col.2, original italics.) Thus, the Continued
Employment Agreement is void. It has no power and no force or effect whatsoever.5
These legal principles are clear and, in our opinion, incontrovertible. On the other hand,
they leave open the question of what, if anything, in fairness should be done to address
the nullity of the Continued Employment Agreement. We solicit your input on potential
approaches to address any adverse impact on your clients with respect to this conclusion.
2007 CHIEF RECRUITMENT
The following ultimate question was raised as to the 2007 recruitment of the Chief of
Police:
Was the 2007 recruitment for the position of Chief of Police
conducted consistent with Newport Beach Municipal Code, the
CSB Rules and purpose, and if not, what if anything, should
be done to address the issue in the context of the Civil Service
System?
Specifically, the legal question here is whether the City regulations require the recruitment
of the Chief of Police through an "open" recruitment process.
As with the question regarding the Continued Employment Agreement, the law applicable
to this issue is not in dispute. The Chief recruitment process is legally governed by the
provisions of the City Charter, the Newport Beach Municipal Code, the CSB Rules, and
the City's Employee Policy Manual, when not in conflict with either of the other three. As
5 This conclusion does not mean Police Department employees cannot, under specific circumstances,
return to work after retirement in a manner consistent with City Council Policy F -20 or the rules governing
the PERS retirement system. It simply means the Continued Employment Agreement has no binding
effect on the City.
Sanjay Barisal
Aaron Harp
April 3, 2009
Page 7
with the issue regarding the Continued Employment Agreement, the analysis starts with
the Charter. As discussed above, the City Manager is given the responsibility and
authority to appoint the Chief of Police. That authority is to be exercised in the context of
the City's Civil Service System.
The principle structure and regulations governing the City's Civil Service System were
established by Ordinance No. 866, which was adopted by a vote of the people in 1958.
Ordinance No. 866 is codified in Chapter 2.24 of the NBMC. In addition, the City has Civil
Service Board Rules that were approved by motion of the City Council effective February
11, 1974, and, in their reformatted /revised present form, approved by motion of the City
Council effective April 22, 2008. 6
The purpose of the Civil Service System is set forth in NBMC 2.24.030 as follows:
The purpose of the system is to establish an equitable and
uniform procedure for dealing with personnel matters; to
attract to the City service the most competent persons
available; to assure that the appointment and promotion of
employees will be based on merit and fitness; and to provide
reasonable security for employees.
(Ord. 866 Section 3; Civil Service Board Rules ( "CSB Rules ") Section 402.) The CSB
Rules identify two principle agents for carrying out this purpose: the CSB (CSB Rules,
Section V) and the City Manager (CSB Rules, section VI and VII).
Appointments under the Civil Service System shall be based on "merit and fitness" and
"shall be made from employment lists." (NBMC 2.24.070(A).) Specifically, the
appointment of Police and Fire Chiefs are governed by the provisions of NBMC Section
2.24.100 and CSB Rules Sections 700 and 701.' As a rule, the Civil Service System and
the employee policy of the City prefers filling a position via promotional recruitment as
opposed to open recruitment. (NBMC Section 2.24.080(A) and 2.24.090(A).) 8
In this context, the chief officer recruitment for both the Fire and Police Departments is
specifically covered by NBMC Section 2.24.100 9 and CSB Rules 700 and 701. The intent
of this section and these rules, and thus the process, is to fill the chief officer positions with
6 At the time of the Chief recruitment, the Civil Service ordinance and Civil Service Rules were not fully
and clearly integrated.
The appointment of the Police and Fire Chiefs are specifically subject to the sections related to those
appointments. (NBMC 2.24.070(B).)
It should be noted that the City's Personnel Policy which was adopted by the Council via Resolution
No. 2001 -100 on December 11, 2001 states: "With respect to non -civil service employees, recruitment
shall be promotional unless the Human Resources Director, after consultation with the relevant
Department Directors, determines that an open recruitment is necessary to insure an adequate number of
candidates with appropriate skills and ability."
e Ordinance No. 866 Section 10.
1d
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Aaron Harp
April 3, 2009
Page 8
"the best qualified persons available as determined by competitive examination." It also,
however, continues the preference for promotional recruitment by stating, "Qualifications
being substantially equal, preference shall be given to candidates in the Newport Beach
Fire and Police Departments who qualify under the selection process herein described."
(NBMC Section 2.24.100.) It further recognizes that the chief officer positions are not
included as part of the Civil Service System (NBMC Section 2.24.100(B)) and that the
appointments are to be made by the City Manager (NBMC Section 2.24.100(C).) That
having been said, these provisions set forth the method for selection of the chief officers.
It is not disputed that the Police Chief recruitment in 2007 complied with the procedural
provisions of NBMC Section 2.24.100, except for the requirement for use of an 'open
employment list." Specifically, subsection C of 2.24.100 states:
C. Selection Process. The selection of the Police Chief
and Fire Chief shall be made by the City Manager from among
the candidates whose names appear on an open employment
list for the class. Such list shall be created as a result of an
examination consisting of a written test weighted at fifty
percent and qualifications appraisal weighted at fifty percent.
The minimum qualifying score on each phase of the
examination shall be seventy percent.
This section further requires that the written test be prepared by a professional agency
with the approval of the CSB (NBMC 2.24.100(D);) a qualifications appraisal board be
established consistent with the ordinance (Section 2.24.100(E);) qualification factors for
the consideration by the appraisal board be jointly established by the City Manager and
the Board (NBMC 2.24.100(F)); and candidates for the position must possess the
minimum qualifications set forth in the class specifications as established by the City
Manager and approved by the Board (NBMC 2.24.100(G)). All of these requirements for
the process were met with the exception of the selection of the candidate from an "open
employment list."
The term `open employment list" is defined in NBMC 2.24.090. It is to be contrasted to a
"promotional employment list." The Section states, in pertinent part, as follows:
A. Priorities. Priority for consideration for
employment shall be given to employment lists in the following
order: reemployment lists, promotional employment lists, and
open employment lists.
WE
C. Promotional Employment Lists. Promotional
employment lists shall consist of the names of City employees
Sanjay Barisal
Aaron Harp
April 3, 2009
Page 9
who have been successful in a promotional recruitment and
examination.
D. Open Employment Lists. Open employment
lists shall consist of the names of all candidates who have
been successful in an open recruitment and examination. ...
Thus, consistent with NBMC Section 2.24.090(D), "open employment list" is one made up
of candidates who had competed in an open recruitment process. Section 2.24.010
defines "open recruitment" stating, "The term 'open recruitment' shall mean a recruitment
that is not restricted to City employees." Thus, pursuant to the terms of the ordinance, the
appointee to the position of Police Chief in 2007 should have been drawn from an
employment list that was compiled from candidates who were not restricted to City
employees.
The 2007 Police Chief recruitment, however, was conducted as a "promotional
recruitment" and not an "open recruitment." The intention to pursue a promotional
recruitment as opposed to an open recruitment was reported to the CSB at its March 5,
2007 meeting. This report was provided in an open and public session of the CSB at
which representatives of the Police Department and its two employee associations were
present. No objections to this approach were raised.
In spite of this lack of objection, however, the decision to proceed in a promotional
recruitment was not consistent with NBMC Section 2.24.100 in that it dictates that an
"open list" must be used for the selection of the Police Chief. While the NBMC, CSB Rules
and Employee Policy Manual clearly identify promotional recruitment as being the
preferred method for filling positions within the City, the Chief Officer recruitment process
as defined under NBMC Section 2.24.100 is an exception to that rule. It should, therefore,
have been conducted as an open recruitment. Thus, the requirements of Ordinance No.
866 and the municipal code were not followed in their totality when making the Police
Chief appointment in 2007.
Having reached that conclusion, however, the inquiry does not end there. The question
then must be posed as to what, if anything, should be done to address this situation. Here
the Chief Officer was chosen by the appropriate appointing authority, the City Manager,
using all the appropriate processes with the exception of an open recruitment, and a
contract was entered into between the appointing authority and the Chief consistent with
the City's contracting policies. These actions, however, do not in and of themselves cure
the failure to comply with the open recruitment requirement.
We now seek input from the interested parties as to what, if anything, should be done to
address this situation. We generally see this issue as being one of equity. The question is
whether the circumstances underlying this error in the appointment process justify
corrective action being taken. Do they justify conducting a new recruitment? Do they
N
Sanjay Bansal
Aaron Harp
April 3, 2009
Page 10
justify accepting the recruitment as not fully complying, but no action be taken? We ask
that you provide us your input on this issue so it can be considered. In addition, it is
believed that completion of the investigation that has been commissioned by the CSB at
the request of the PMA will need to be completed in order to fully determine the factual
circumstances surrounding the recruitment and defining the equities related to it.
CONCLUSION
Two legal issues can be defined and answered based upon the application of settled law.
First, the Continued Employment Agreement was entered into by the City Manager in
excess of his authority and without following the requirements of the City Charter,
ordinances, or the Council's resolutions. It is therefore void. Additionally, the Chief of
Police recruitment conducted in 2007 was not conducted as an open recruitment as
required by the NBMC and was therefore inconsistent with the dictates of the Code. The
question remains, however, what, if anything should be done to address these issues, and
we seek your input on that question. Additionally, if you have any questions, concerns,
comments or disagreements in any way with the legal analysis related to either of these
two issues, please provide us with that information.
In that, we are seeking to address these issues promptly so that policymakers can be
informed of these issues, we ask that you provide us your comments on or before close of
business Thursday, April 9, 2009.
Thank you for your attention in this matter. Please feel free to contact the undersigned if
you have any questions or concerns.
Sincerely,
OFFICE OF THE CITY ATTORNEY
David R. Hunt,
City Attorney
DRH /da
cc: Homer Bludau, City Manager
John Klein, Chief of Police
SB -AH NBPMA Req For CSB Investigation
15
EXHIBIT C
General Scope of Review
Do the current governing documents of the City's Civil Service System including, but not
limited, to City Charter, City Municipal Code, City Ordinances, Council Policy Manual, Civil
Service Board (CSB) Rules, Employer - Employee Relations Resolution No. 2001 -50, Employee
Policy Manual, Memoranda of Understanding with public safety associations (police and fire)
and departmental policy manuals, provide for fair, equitable and uniform management and
administration of the employment of public safety employees within the City's Civil Service
System?
Ouestions Posed:
The following are specific issues to determine the thoroughness and effectiveness of the civil
service governing documents
1. Does any conflict exist between the police and fire departmental manuals and the
provisions of the City's Civil Service System as found in Newport Beach Charter,
Newport Beach Municipal Code (NBMC) and City Ordinances? And, if so, what, if
anything, should be done to address the issue in the context of the Civil Service System?
2. Does any conflict exist between the police and fire departmental manuals and the
provisions of the City Council Policy Manual, Employer — Employee Relations
Resolution No. 2001 -50 and the Civil Service Board Rules in such a way as to make it
inconsistent with the purpose of the Civil Service System, and, if so, what if anything,
should be done to address the issue in the context of the Civil Service System?
3. Does any conflict exist between the police and fire departmental manuals and the
provisions of the city -wide Employee Policy Manual? And, if so, what if anything
should be done to address the issue in the context of the Civil Service System?
4. Does any conflict . exist between the police and fire departmental manuals and any
provision of the current memoranda of understanding (MOU) between the City and its
public safety associations? And, if so, what if anything should be done to address the
issue in the context of the Civil Service System?
5. Does any conflict exist between any of the aforementioned documents in such a way as to
make it inconsistent with the purpose of the Civil Service System, and if so, what if
anything should be done to address the issue in the context of the Civil Service System?
6. What review, if any, needs to be conducted to determine which of these documents
referenced in Exhibit B -1 is superior to the others and therefore takes precedent over the
others?
EXHIBIT C -1
CITY OF NEWPORT BEACH
CIVIL SERVICE SYSTEM
DOCUMENT LIST
1. City Charter
2. City Municipal Code
3. City Council Policy Manual
4. City Ordinances
5. Civil Service Board Rules
6. Employer— Employee Relations Resolution No. 2001 -50 Adopted June 2001
7. Employee Policy Manual Revised January 2001
8. Police Employee Association (PEA) Memorandum of Understanding (MOU),
January 2007 to December 2009
9. Police Management Association (PMA) Memorandum of Understanding (MOU)
January 2007 to December 2009
10. Police Department Policy Manual
11. Firefighter Association (FFA) Memorandum of Understanding (MOU)
January 2008 to December 2010
12. Fire Management Association (FMA) Memorandum of Understanding (MOU)
January 2008 to December 2010
13. Lifeguard Management Association (LMA) Memorandum of Understanding
(MOU) July 2006 to December 2008, Expired
14. Fire Department Policy Manual
April 2009
1]
EXHIBIT D
BRUCE D. PRAET
Attorney at Law
FERGUSON, PRAET & SHERMAN
1631 E. 18th Street
Santa Ana, CA 92705 -7101
(714) 953 -5300 telephone
(714) 953 -1143 facsimile
bpraet @law4cops.com
EDUCATIONAL BACKGROUND
JURIS DOCTOR DEGREE, 1985
Western State University, College of Law
(Dean's list; twice awarded American Jurisprudence
Award for academic excellence)
BACHELOR IN SCIENCE DEGREE, with scholastic merit 1983
Western State University
ASSOCIATE IN ARTS DEGREE 1974
Saddleback Community College
ORANGE COUNTY PEACE OFFICERS ACADEMY 1974
Top Recruit
GOLDEN WEST COLLEGE 1994
Inducted into President's Alumni Pillar of Achievement
PROFESSIONAL BACKGROUND
FERGUSON, PRAET & SHERMAN 1987- present
Attomey /Partner
ORANGE COUNTY CHIEFS' & SHERIFF'S ASSOC. 1993- present
General Counsel
CITY OF ORANGE 1986 -1987
Assistant City Attorney
MICHAEL P. STONE & ASSOCIATES 1984 -1986
Assistant General Counsel to Los Angeles Police
Protective League
COTKIN, COLLINS, KOLTS & FRANSCELL, 1983 -1984
Law Clerk
I[
BRUCE D. PRAET Pape 2
CITY OF ORANGE POLICE DEPARTMENT, 1974 -1983
Uniformed Patrol, S.W.A.T., Forensic Artist,
Detective in Vice/Narcotics, Sex Crimes,
K -9 Officer (Medal of Valor - 1979)
LAGUNA BEACH POLICE DEPARTMENT, 1972 -1974
Police Cadet/Police Officer
MARICOPA COUNTY SHERIFF'S OFFICE, 1971 -1972
Phoenix, Arizona (I.D. Tech)
TEACHING /LECTURING BACKGROUND
CALIFORNIA STATE UNIVERSITY LONG BEACH 1986 - present
Center for Criminal Justice, Internal Affairs
Course (P.O.S.T. Approved) Instructor
CALIFORNIA PEACE OFFICER'S ASSOCIATION 1990 - present
(P.O.S.T. APPROVED) INSTRUCTOR
Officer Involved Shooting Course
Use of Force Course
Canine Liability Course
CALIFORNIA DEPARTMENT OF JUSTICE 1992- present
Instructor - Officer Involved Shooting Course
CHAPMAN UNIVERSITY - Internal Affairs 1986 -1996
Investigator School (P.O.S.T. Approved)
Instructor
P.O.S.T. SUPERVISOR'S ACADEMY, 1986 -1999
Disciplinary Process and Vicarious Liability
Orange County Sheriffs Academy, Instructor
Golden West College
CALIFORNIA HIGHWAY PATROL 1996/1997/1998
Officer Involved Shooting Instructor
INTERNATIONAL HOMICIDE INVESTIGATOR'S CONF. 1998
Keynote Speaker (O1S), Scottsdale, Arizona
EL PASO POLICE DEPT, TEXAS 1998
Officer Involved Shooting Instructor
9
BRUCE D. PRAET Page 3
FBI NATIONAL ACADEMY ANNUAL CONF. 1999
Civil Rights Panel (Chair)
OREGON/WASHINGTON POLICE CHIEF'S CONF. 1998
Keynote Speaker, Seattle, WA
PRIMA CONFERENCE (5 Western States) 1996
Keynote Speaker - Reno, NV.
KANSAS /MISSOURI LAW ENFORCEMENT CONF. 1997
Keynote Speaker
OREGON LAW ENFORCEMENT ASSOC. 1996/1999
Keynote Speaker - (Cramer & Giles Ins.)
PARMA CONFERENCE 1990/1993/1995
Keynote Speaker
SAN MATEO COUNTY CHIEF'S ASSOCIATION CONFERENCE- 1992 -1993
Keynote Speaker
LOS ANGELES COUNTY CHIEF'S CONFERENCE 1989
Keynote Speaker
ORANGE COUNTY CHIEF'S CONFERENCE 1989 -1998
Keynote Speaker
RIVERSIDE COUNTY CHIEF'S CONFERENCE 1987/1996/1998
Keynote Speaker
SO. CALIFORNIA INTERNAL AFFAIRS INVESTIGATORS 1987 -1998
ASSOCIATION - Keynote Speaker
LOS ANGELES POLICE PROTECTIVE LEAGUE, 1986
Annual Defense Representative Conference, Instructor
LOS ANGELES POLICE PROTECTIVE LEAGUE, 1985
Annual Defense Representative Conference, Instructor
NATIONAL CONFERENCE OF FORENSIC PATHOLOGISTS, 1982
Keynote Speaker
r =.
BRUCE D. PRAET Page 4
AMERICAN MEDICAL -LEGAL DELEGATION 1981
in the People's Republic of China and Japan,
lecture tour with Dr. Thomas T. Noguchi
NATIONAL SOCIETY OF FORENSIC ARTISTS, 1977 -1979
Instructor and Vice- president
SADDLEBACK COMMUNITY COLLEGE, 1977 -1979
Administration of Justice, Part-time Instructor
ORANGE UNIFIED SCHOOL DISTRICT, 1975 -1977
High School law enforcement classes
Part-time instructor
PUBLICATIONS
Legal Update for Fire Services, Videotape 1987
Lecture, Statewide distribution
"Defending the Practice of Photographing 1987
Field Detainees ", Published in:
Police Chief Magazine, IACP
Journal of California Law Enforcement,
Vol.21, No.2
"Restricting Officer Access to Internal December 1987
Investigation Files" - California Peace Officer
Magazine
Responding to Citizen Complaints - California December 1988
Peace Officer Magazine
Officer Involved Shootings: A Procedural and 1989
Legal Analysis - Journal of California Law
Enforcement, Vol.23, No.2
Police Canine Liability - December 1991
California Peace Officer Magazine
Alternative Use of Force Policy - California Peace December 1994
Officer Magazine /Journal of California Law
Enforcement, Vol. 28, No.4
'y
BRUCE D. PRAET Page 5
POST Canine Standards for State of California April 1993
Committee Chair /Author
CPOA: Gang Photos & How to Avoid Litigation July, 1996
Complete Police Policy Manual 1998- present
Currently adopted by Agencies throughout State
ASSOCIATIONS /MEMBERSHIPS
California State Bar
American Bar Association
Federal Bar Association
Admitted to all Federal District Courts in California,
Ninth District Courts of Appeals and the United States Supreme Court
Orange County Police Chiefs & Sheriffs Association
California Peace Officers Association, 1985- present
Police Legal Advisors - Chairman (1991 -1992)
National Ski Patrol
United States Triathlon Association
PADI Certified SCUBA Instructor
d-