With Historic Multimillion-Dollar
DAVID E. MASTAGNI
ISAAC S. STEVENS
Mastagni Holstedt, APC
An agreement was reached after the SPOA prevailed in an arbitration that disproved the City’s purported “first in, first out” (FIFO) accounting methods. CalPERS had relied upon the City’s FIFO misrepresentations in determining that holiday pay was not being paid as it accrued and therefore should be excluded.After eight years of litigation, the Sacramento Police Officers Association obtained over $20 million in retroactive and prospective increases in members’ pension benefits for holiday pay cashouts. SPOA President Dustin Smith secured this historic achievement through a settlement only after SPOA obtained an arbitration award repudiating the City’s accounting gimmicks as fiction used to avoid reporting holiday pay.
Holiday pay cashouts were established in a July 1990 tentative agreement, which provided that “all accrued time in excess of 112 hours in any biweekly pay period shall be paid to the employee.” This language was incorporated into every successive MOU, including the current contract. SPOA members would accrue 112 hours in a year, and after banking 112 hours would begin receiving holiday pay in lieu of compensation.
Under PERS Regulation 2 CCR 571, holiday pay must be included in pension benefits if the cashout is paid periodically, at least annually, and is reported in the period earned. To avoid reporting holiday cashouts as pensionable compensation, the City told PERS in August 1994 that “applying the recognized accounting principle of first in, first out (FIFO), the City is paying holiday credit hours earned in a previous calendar year first.” Based on this representation, PERS agreed that holiday pay was not pensionable compensation. SPOA was never provided notice of the City’s representations or given an opportunity to object.
In February 2007, PERS reversed its position in response to a member inquiry. PERS held that the plain language of the MOU indicated fresh accruals were being paid, and ordered the City to correct reports for SPOA members over the past three years. In September 2007, then-SPOA President Brent Meyer and SPOA Chief Counsel David E. Mastagni met with City and CalPERS representatives to enforce the letter ruling. For the first time in SPOA’s presence, the City asserted that holiday pay is on a FIFO basis and therefore should be excluded from pension benefits. SPOA disputed this assertion. However, in a November 2007 letter ruling, CalPERS again reversed itself based on the City’s claim. SPOA timely appealed.
SPOA filed a grievance alleging that the City did not pay holidays on a FIFO basis, asserting that MOU Section 13.1 prohibited such a practice. MOU Section 13.1 provides: “Holiday accumulations shall be limited to a total of 112 hours. All accrued holiday time in excess of 112 hours in any biweekly pay period shall be paid to the employee at his/her straight-time hourly rate.”
The City and SPOA arbitrated their dispute before Thomas Angelo. At arbitration, the parties asked the arbitrator to decide whether the City’s holiday payout practices, including the City’s claimed use of FIFO accounting, violated MOU Section 13.1.
SPOA presented fact-finding transcripts from the early 1990s showing that the parties intended new holiday pay accruals to be automatically paid to each SPOA member as soon as they banked 112 holiday hours. These transcripts showed that the City never claimed it had used FIFO accounting to pay out holiday hours banked a year earlier. During that fact-finding, the City’s then-lead negotiator testified, “If an officer is at 112 hours presently, they don’t accrue any additional hours. They’re just being paid off biweekly in a dollar amount that is equivalent to the biweekly gain.” She further stated, “After 112 hours, it automatically cashes out.”
SPOA also presented a 1996 grievance over a new payroll system that provided further confirmation that holidays were not paid on a FIFO basis. SPOA filed a grievance because, although SPOA members had reached the 112-hour holiday accumulation maximum, they did not receive the holiday payout. Their pay stubs reflected only the 112 hours already banked, and did not reflect the newly accrued hours in pay or leave. In response, the City explained that the new payroll system did not allow the excess accruals to be included on checks for the period in which they accrued. Instead, they would pend for two weeks and be paid out in the following check. The City’s resolution explained as follows: “For example, SPOA members accrue 4.18 hours per pay period. If their holiday bank of hours is 109, the pay stub will show the accrual of three hours and the total holiday bank hours will be 112. The other 1.18 hour is put in pending pay to be paid out on the next paycheck. The system is not set up to show the remaining 1.18 hours anywhere on the check.”
SPOA also presented payroll records issued immediately following a raise that confirmed new holiday accruals were paid out at the rate of pay two weeks in arrears, while the salary was paid at the new higher rate. The holiday pay on the following check was paid at the new higher rate from the raise.
Arbitrator Angelo issued his award on March 21, 2013, ruling that the MOU required the City to cash out holiday leave in the pay period when it was accrued. Angelo held, “The City’s FIFO argument is largely based on a fictional construct of what takes place with respect to [the] holiday leave pay period,” and found, “The alleged use of FIFO was theoretical at best. The City had no method by which it could identify what time the holiday credit it was paying out was actually placed in the bank. It simply told PERS that the holiday credit being paid was the ‘oldest’ one. In fact, in all the correspondence between the City and the union submitted at hearing, FIFO was never referenced when the City explained its method of paying out the holiday credit, even when the information is being given by a City accountant. The City has done no more than select an accounting methodology to receive a desired result. In other words, it does not describe the reality of how payments are made” (Award, pp. 13-14).
Angelo also found the so-called FIFO method that the City told CalPERS it was using was “inconsistent with the parties’ understanding of how Section 13.1 was intended to operate” (Award, p. 14). Angelo noted, “As a result, the fact finder concluded that the accrual was being paid ‘directly’ to the employees. It was not put in a bank for some later dispersal; it did not follow some circuitous route whereby it was not released until a year later” (Award, p. 13).
As a remedy for the City’s MOU violation, Angelo ordered that the award be forwarded to PERS for its use in determining SPOA’s appeal of PERS’s ruling that the City was not required to report holiday pay. At first, PERS maintained its position that holiday pay was not pensionable and continued accepting the City’s FIFO representations. SPOA’s appeal of PERS’s decision was eventually set for hearing in the fall of 2015.
Representatives of SPOA, PERS and the City participated in a settlement conference in February 2015. After a long day of negotiations, the parties emerged with a tentative settlement agreement. The settlement was finalized on May 27, 2015.
Under the parties’ agreement, every SPOA member who retired since 2004 will receive up to five years back pay and, more importantly, a 5.4% increase in future pension benefits. The settlement provides immediate enhancements to over 230 retirees and higher pensions for all current and future SPOA members. As a result, SPOA’s retirees and current members will receive approximately $5,000 in increased pension benefits each year into the future. Combined, the lump sum retro-payments and ongoing increase in pension benefits will surpass $20 million. This recovery represents the largest back-pay award in the history of the SPOA.
About the Authors
David E. Mastagni, partner in the Labor Department of Mastagni Holstedt, APC, focuses his practice on labor and employment law representation, including trial and appellate litigation in California and federal courts.
Isaac S. Stevens, senior associate in the Labor Department of Mastagni Holstedt, APC, represents labor associations and their members in complex litigation, collective bargaining, arbitration and mandamus proceedings.