A MESSAGE FROM THE PRESIDENT
Winter is approaching and we are now nine months into the continuing pandemic. Fresno County remains in Governor Gavin Newsom’s ‘red tier,” which means the county can partially open businesses. Right now, places like restaurants, gyms, hair salons, movie theaters and a host of other businesses can open at various capacities. Most are under 50 percent. However, we remain watchful of Fresno County COVID-19 numbers and the formula used by state officials- since our county seems to be at risk of dipping into the purple tier. At this point- testing needs to be improved. In short, not enough people are getting tested locally.
I hope all of you have been able to start signing up for your 2021 vacation weeks. Please take advantage of the time off to decompress from the daily grind and the stress of police work. Maintaining a good balance means enjoying moments of relaxation and rejuvenation.
Keep in mind when you are selecting your vacation weeks, they can be canceled by going through your chain of command, but they are not guaranteed to transfer to another week. Meaning, you can cancel, but nothing is guaranteed to capture a different week. This will depend on staffing in the area you work.
November 2020 Primary
The big presidential election is now behind us! Hopefully each of you were able to either make it to the polls or return your ballots to be counted!
One of the bigger initiatives on the ballot was Prop 20 – essentially reversing some of the Prop 47 and Prop 57 decriminalization measures in California. PORAC was a huge supporter of this proposition and sent our various notices out to law enforcement officers and families about its importance.
By now, you all should have received your open enrollment packets from the Insurance Trust. These have the information you and your family will need for our Anthem Blue Cross Plan, Delta Dental and MES Vision.
****IF YOU HAVE NOT RECEIVED AN INSURANCE PACKET PLEASE CALL THE FDSA OFFICE TO ENSURE WE GET ONE OUT TO YOU.****
Included in the insurance packets is information for you to sign up for the FDSA website. I can’t stress how important this information is moving forward. All of your insurance information will now be listed in the members only section of the website. This means you must register and create a user name and password in order to gain access.
Also in the packets- you will find the rate information from Anthem Blue Cross, which includes dental, vision and life rates for all active members. These rates include the negotiated county contribution rates that will be reflected in your paycheck starting December 14, 2020.
A majority of you will not see any difference in your benefits.
Those who do not wish to change their current coverage- will not need to do anything during open enrollment. The system is built to transition you from where you are now to where you will be on January 1.
I have attached my message from last month for those of you who did not see it, explaining how we changed carriers.
Since 1997, the FDSA/FSSA Insurance and Benefits Trust has used Blue Shield of California as its insurance carrier. The relationship has been longstanding with some ups and downs. There were years we had no rate increase, some where we had rate decreases, and others where we experienced rate increases. Due to the Affordable Healthcare Act, initiated by former President Obama- all private insurance plans had increases. This act used private insurance participants, and gave us all a tax hike for three years to get the program started. This increased the rates without any discretion for a several year period.
Our insurance plan is under and ERISA Trust. Meaning, we are not self-funded, but we operate under what the ERISA Trust document states.
Our health insurance rates come primarily from usage by its members. We negotiate rates with the carriers and also contributions from Fresno County for active employees.
The middle of 2019 and most of 2020 has turned out to be challenging for usage under our plan. Normally- we see percentages of usage no higher than 85%. This means carriers are still making 15% from us. Anything lower is more money for the carriers. However- it also provides us with a less risk rating, which makes our group more desirable for a better renewal year.
The high claims- during part of 2019 and 2020 were well over 100%. Two months were actually over 200%, meaning Blue Shield is not making any money. In fact, they are having to pay over and above to make sure bills are paid on their end. Based on our recent trend, it was apparent the renewal of our benefits would be a challenge.
Our current situation is figuring out how much we can offset the less than ideal rating.
Blue Shield offered a renewal of 24% to the total plan. No matter the benefit level you receive-it would be substantial out-of-pocket money. There’s no way to get around that cost at this time.
Therefore, the Insurance Trust directed our insurance broker, DiBuduo and DeFendis to shop other carriers. This essentially means moving our insurance away from Blue Shield.
The Trust asked for quotes providing the same benefit level, changing nothing. In addition- we asked for a fixed plan for retirees, to give them a more cost-effective option.
During the entire month of September- each insurance carrier bid on our contract. Blue Shield would not budget until the last minute, dropping down the renewal to 21.4%. This a non-starter for us.
After several meetings with two other carriers, your Insurance Trust has chosen to move our plan to Anthem Blue Cross for all of its members and their families. I have attached an abbreviated benefit level for all of you to see.
I will be putting out more information on rates in the next newsletter, along with how they will impact each of you. The information will also be posted to our website in the Members Only, benefits section.
Overall, the plan has risen 7 percent overall with the increase based on rates from Anthem Blue Cross. Please remember, our rates are directly based on experience and risk. This formulation dictates which direction either a rate increase or rate decrease has to the plan. In deciding what will work best for you and your family- please consider the annual cost and what is more suitable for you in terms of a PPO or HMO.
It’s been a very hectic few months with the Creek Fire, pandemic, election, shift signups and so much more. Despite this season of stress and change, we are finding countless reasons to be grateful. We were still able to host the 14th Annual FDSA Memorial Golf Tournament on October 23rd, and although different and socially distanced - it was a big success. Most other local organizations were forced to cancel fundraisers. However, since our tournament was held in late October- we were able to move forward with it. ALL of our corporate sponsors came through once again. As in years past- the tournament was sold out. In addition, we shared with all 216 golfers the purpose of the meaningful event. ALL proceeds go to our FDSA Peace Officer Memorial Fund. This tournament, we honored and paid tribute to our most recent fallen deputy, Jose Mora. His death was a harsh reminder that sometimes, invisible threats can also pose a painful reminder of what we must confront in the quest for justice. We miss Deputy Mora and will never forget him. This year, Margot Kim of ABC30 sang the National Anthem- which was a fitting and meaningful tribute to begin the day. As we plan next year’s event, we are already thinking about ways to expand and improve the tournament. Thank you to those of you who volunteered and helped make the event a memorable one.
Wishing you a wonderful Thanksgiving season and hoping it also has you counting many blessings!
My best to you and yours, Eric
Greetings everyone! Hope this message finds you well. October is here and we are looking forward to fall bringing cooler temperatures and hopefully fires put out.
The Labor Day holiday is customarily the last official weekend of summer and traditionally the final weekend for our boating unit. However, this year- the weekend began with a raging wildfire that's now the largest in California history.
The Creek Fire was sparked in Fresno County and to date the cause remains under investigation. The blaze instantly sent many of our patrol deputies and detectives into lifesaving mode. Our teams were mobilized to help with everything from evacuations, to road and campground closures, residential patrols in order to prevent looting.
The weekend was especially frightening for more than 200 adults and children visiting Mammoth Pools in Madera County. A fun weekend nearly turned deadly- and a request for mutual aid deployed the National Guard to airlift mass crowds out of a circle of flames.
Thank you to all of you who rushed up to the Shaver Lake area to immediately work 12 plus hour shifts. Your work has been commended by mountain residents, other agencies and local political leaders. The duration has been exhausting and I am grateful for the wonderful compassionate service you have provided to the community. It's during disasters like that where Fresno County residents really rely on us to help them navigate what's a very difficult time for them. It's been hard seeing the tears, heartbreaking loss of homes and then having to tell residents they must still remain evacuated until it's safe and the infrastructure is in place for them to safely survey and digest the damage.Continue reading
August has been a hot and smoky one in Fresno County. Perhaps- one of the only highlights this month has been the incredible sunrises and sunsets that were provided compliments of the unhealthy air quality. I hope those of you who work graveyards and swings had the opportunity to enjoy some of the fiery red beginnings and endings to each day. Unfortunately, criminals have taken no break and crime is continuing to rise. Calls for service are steady and the levels of crime no longer seem impacted by the ongoing pandemic.
MEMORANDUM OF UNDERSTANDING (MOU)
TCovid-19 continues to linger in Fresno County and statewide. Although there isn’t a complete quarantine/shutdown like we experienced in the spring – there is still enough to cause concern about what this will amount to in 6-12 months when the numbers are revealed in municipal and state budgets. Since this is a presidential election year, we aren’t really hearing too much in the way of complete doom. The markets are moving up in a direction of pre-pandemic numbers. Although travel is still curbed with international borders being off-limits- much of the air industry has been grounded which has had a ripple effect on the oil and energy industries as well. The term ripple effect is key when looking at actually what this shutdown is going to mean for us in the upcoming months and year.
This pandemic and lingering after effects raises concern for us, when engaging in contract negotiations with the County of Fresno. We resumed talks in July, as if we never skipped a beat for a new contract starting July 13 through November 1. During these discussions, many different scenarios were discussed by both sides. After three meetings, the County of Fresno offered no changes to our current contract, but agreed to add additional money for our health insurance starting December 14 through the entire calendar year. This offer followed talks of potential furloughs and taking a hard look at contract takeaways that would not have benefitted our members. After discussion with FDSA Board of Directors- it was unanimous that FDSA move forward with securing this offer for our members. Our legal counsel has also agreed based on the current climate and unusual circumstances- this is a fair extension for members since we are not giving up any pay or benefits. There is no loss of pay/benefits/working conditions, and in addition, we will be receiving additional funds to help off-set health insurance or any increases that may be coming with renewal. FDSA Board of Directors authorized the further extension of our contract taking effect from November 1, 2020 through October 31, 2021.
The benefits and securities that come with this contract provide stability for the time being. FDSA will now go through two budget hearings, with a secure contract intact. This means, we are off the table, as other groups are continuing to be out of contract or still at the negotiating table. Everything in our contract remains the same, nothing is frozen, nothing gets removed and health benefits contributions actually increase for all of us. If you go to the FDSA website, at www.fresnodsa.org you will find the Labor link that will take you to our MOU.
We will be sending out another survey after the first of the year to test what the members are looking for with a new labor contract moving forward in 2021.
Deputy John Robinson was elected to his second term on the Fresno County Retirement Employees Association (FCERA). This was made possible by all of you who placed your ballot in the mail or turned it in at the election’s office. This election was John’s re-election term for the next three years.
John has been a great addition to the FCERA board since his arrival in late 2017. Below are some of John’s accomplishments and decisions made since he has been there.
Based on the above table, you are seeing a reduction in your rate, or a very minimal increase.
One reason, is based on the movement of our investment accounts. These accounts have been stagnant for many years. I, along with your FCERA Trustees, have made decisions that will allow returns on our money to flourish. One example during the last six months of 2019, after moving investments around, FCERA made over $370 million dollars ending the year with an over $5 billion dollar pension fund. This equates to the pension being over 82% funded.
I have proudly served all of you in 2018, 2019 and during these unprecedented times in 2020. I look forward to continuing as your safety trustee on the Fresno County Employees Retirement Association.
PRAYERS NEEDED fFOR DEPUTY PATRICK GEE
We have a deputy sheriff, Patrick Gee, who is in a fierce fight for his life right now- currently in the hospital. We’ve been told Patrick needs plasma for a chance to recover and survive. Anyone can donate who has either recovered from COVID-19 or has a blood type of O positive or negative. Also, universal blood donors with AB positive or negative can also donate. If you fall into any of these categories, please consider helping him to get well. If you do not meet the criteria, prayers are another way to help this family during this very difficult time. Patrick is a fighter – and we are thinking of him daily.
Happy summer to you all! What a busy season it has been! Between the opening up of businesses to a softer shutdown, and everything in between. Right now, everything from professional to school sports is up in the air- and the fall semester of school is starting in a distance learning setting. Among all the changes of the pandemic- we are patrolling the streets, investigating crime, keeping the Superior and Civil Courts safe, processing evidence, dispatching calls, and ensuring the day-to-day operations of the Sheriff’s Office continue to run like a fine-tuned machine. This time of year, staffing means balancing summer vacations and ensuring we all get the time off we need to decompress and unwind. Downtime is important in the stressful world of police work, and I hope you are all enjoying some great memory making-despite the evolving world and constant changes.
The labor front has been no different. The past month has been filled with various court rulings on a number of issues that impact the workplace. Supreme Court decisions have been handed down on pension, which I will address later in my article. We are still waiting for dismissal on an ongoing lawsuit against the FDSA. In addition, we are also waiting on the State Supreme Court to grant a review on the right of movement grievance we filed and were successful on back in 2015. With a difference of opinion between county counsel, FDSA and Sheriff’s Office – the varying decisions have taken the issue to the highest court in California to now make a final ruling.
VOTE NOW FOR THE RETIREMENT BOARD SEAT
Deputy John Robinson is running for re-election for his board position as your Safety Trustee for FCERA. John is in his third year and end of his current term. In 2017, John defeated the three-term sitting Trustee by just three votes. The landslide is proof every vote counts. This position is the direct link for members with safety retirement to the retirement board. John’s principles are simple. No unnecessary spending of your retirement dollars- including trips to foreign countries and across the United States. John stands for transparency for the members. During his term and current campaign, he has mailed out three postcards, outlining some of his accomplishments, along with his personal information for any and all of you to get in contact with him. John is an outstanding voice for safety as our Trustee.
PLEASE REMEMBER TO MARK YOUR BALLOT FOR JOHN ROBINSON AND MAIL IT BACK INTO THE ELECTIONS OFFICE. IF YOU ARE DOWNTOWN AND WANT TO DROP IT BY THEIR OFFICE- THAT IS PERMITTED AS WELL.
IMPROVING POLICE AND COMMUNITY RELATIONS COMMITTEE
During the last PORAC board meeting on June 15, 2020 – PORAC elected to enact its Committee on Public Relations to deal with the anti-enforcement sentiment throughout California communities. Each region in PORAC needed a representative. FDSA is in Region 2, and it was decided that I would be representing the region on this committee. Since June 29, we have been meeting once a week via Zoom for two hours at a time putting in the work to get the message out. The committee has been named:
United for Positive Reform
This group has many stakeholders coming on board to carry the message. The mission statement is as follows:
“United for Positive Reform is a coalition of organizations and community members committed to establishing constructive relationships, finding common ground, and generating commonsense solutions for effective systemic change. Through education, communication, and collaboration, our mission is to promote a more transparent and accessible vision of law enforcement that supports public safety while including diverse voices and addressing the need for meaningful and sustainable reform.”
I encourage all of you to check out the website; www.united4positivereform.com
This is the time in our career, where we can organize and make our voices known to the public. This is going to be a long-winded process and something that each of us knows will not happen overnight. There are still demonstrations throughout our communities showing the anti-law enforcement sentiment. However, we are better than stooping to the level of some who are asking local lawmakers to defund our police. As crazy as it sounds, some jurisdictions are entertaining cuts and movement of money from law enforcement to other local services.
When I speak to our elected officials, I remind them the verb “Defund,” means exactly how it sounds – get rid of, stop, no more money, abolish, not necessary, do away with. The term has been at the forefront of discussions from activist groups and some national media outlets. In addition, some politicians around the country are also throwing around the idea of slashing funding for police services. The problem is with the word, defund is that it’s all rhetoric. It’s meaningless scare tactics by groups who want to put fear into the public, the silent majority and elected officials.
Our Fresno County Board of Supervisors have been clear on this issue. Defunding police is a non-starter for Fresno County. Due to this stance and bold statement, social justice groups have been and will be continuing to try and seek seats within the county to occupy.
Under the United for Positive Reform, we will bridge the gap, that some citizens feel is there. We want people to understand the job we provide to the public, at the same time understanding the cause and effects of this job as well. Nothing is easy, clear and cut, or absolute as we know. But with education, partnership and a willingness to learn, we in law enforcement, can encourage the public trust that they may have lost.
I will be updating this group as more is released throughout the upcoming months.
I also want to let you all know, some of the topics I discussed in my opening paragraph will be discussed in the upcoming months of my newsletters.
Briefly on the Alameda Retirement decision. In summary, the courts ruled that, in fact, the California Rule is what it is. A promised benefit at the time of hire date is still guaranteed. One of the many
questions that remains is, did the high court rule that the benefits can be changed without anything going to the bargaining table, or by legislative pen swipes? Our lawyers at Messing, Adam and Jasmine are continuing to go through the decision to sift through the fine print. I have received various inquiries on the decision from both active and retired members of the DSA. The decision was extremely lengthy. The analysis given initially was very quick and off the cuff. Now the deep dive from many different firms will begin. As the analysis comes out, I will be sending updates to all of you outlining what this all means for ALL of us in the pension system.
In closing – please continue doing the jobs you all do, make sure you do take time away to recharge and reenergize yourselves. Do not ever hesitate to get in touch with me. I am here for all of you. I appreciate those of you who call and ask those questions or just call to catch up.
Stay safe and healthy everyone! Eric
Despite all the twists and turns of 2020- along with new workplace hazards-we are halfway through the year! The pandemic has redefined how quickly things can change and how instantaneously we must adapt to a health crisis that is evolving daily. It’s been difficult and challenging at times- but hopefully the adaptation and new reality will make us even stronger and more resilient. Opening businesses back up to the public was an encouraging sign. Being able to enjoy a meal at a restaurant, return to the gym and restart the economy was definitely a positive. However, the shutdowns may not be over and we may be continuing to cope with COVID-19 for a while. Although wearing masks is not ideal- especially on patrol, while collecting evidence, dispatching calls, etc.- we can and will work through it. The inconvenience is worth being healthy so we can continue to serve the public. The positive cases in the Fresno County Jail’s North Annex should be a reminder of the reality of the situation locally. The numbers are rising in institutions like jails and rest homes, but also throughout the community at large.Unit 1 MOU
I would like to report some positive news regarding our Unit 1 Memorandum of Understanding (MOU). Although we had been negotiating for a successor MOU prior to March – once the pandemic began, all talks ended. In order to keep our working conditions in contract and all the terms and conditions of our MOU, the county and FDSA agreed to push out the expiration (July 12, 2020) to November 1, 2020. By doing this, County Labor and the FDSA Bargaining Team can have time to analyze the economy and how its recovering, while also navigating budget hearings to see where things fall into place financially. I do not like to be out of a labor contract at all. Although when you are out of a contract you are still guaranteed certain work protections, the fact that we had to stop bargaining can present a challenge for those conditions. We intend to start the bargaining process very soon, and see how economics plays into the county budget. I am happy to proudly say that our workforce showed up every day and did not try to police the community from their homes. Your effort and additional risk during the pandemic is appreciated by county leaders. During all of the civil unrest throughout the state, we sent 20 deputy sheriffs under the mutual aid system to the Bay Area. They were there for four days, serving in the San Francisco and Oakland area. We are proud of the representation to help our fellow law enforcement officers and enforce the laws to protect the first amendment right. However, during this process property was destroyed and crimes were happening. There will be more protesting in the future, until people feel their voice is heard. In Fresno, we have seen the professionalism from those wanting to share their feelings publicly- through signs, marches and peaceful gatherings. I cannot emphasize enough, that freedom of speech is not only the first amendment- but one that allows the US to be the home of the free. However, by giving us the right to free speech, does not give the right to break the law(s) at the same time. As law enforcement officers, our job is to maintain civility at all times. COVID-19 in the Workplace Avoiding COVID-19 when we work with the public can sometimes be difficult. The nature of our jobs is to respond to calls for service and assistance from our community. Sometimes we can stay away from crowds- but that is not always theCOVID-19 in the Workplace
Avoiding COVID-19 when we work with the public can sometimes be difficult. The nature of our jobs is to respond to calls for service and assistance from our community. Sometimes we can stay away from crowds- but that is not always the case. For deputies who work in the various courthouses it is a daily challenge. This week more than 500 inmates tested positive at the Fresno County Jail – a deputy who works in the courts was also positive. All of you in the court services unit (CSU), received an email regarding testing, exposure procedure, and filing a worker’s comp claim. FDSA agrees with the overall procedure the department has set up regarding the COVID exposure. The health guidance we are receiving is from the Fresno County Health Department and Dr. Rais Vohra, the health director. Although masks are not mandated for this agency, procedurally, we should be taking the necessary steps to ensure our health. I recommend continuing to follow the guidelines when it comes to mask wearing, using personal protective equipment (PPE)- when applicable, washing your hands, and social distancing. The more isolation, the better your chances are of not being exposed and ultimately not contracting the virus. Use that methodology on and off the job.Masks
The FDSA is working with a vendor who is sending 25 masks next week for our personnel to try out. Please let me know if you would like to try one. If these get good reviews from those who sample them- we will look at supplying each of you with one. This is our way of helping you avoid exposure while on the job. These are adjustable and more durable than a hospital mask, and a lot less bulky and cumbersome than an N95. This virus is likely going to linger for the remainder of the year. Until there is a vaccine approved, we all have to continue working together to stay as healthy as possible. I appreciate all the work you all are doing at your various work sites. Continue pressing forward as this will pass.
- EricJune 2020 President's Message
As we reopen parts of our economy, one can’t help but wonder what this two-month gap of such a standstill and devastating time for so many will look like fiscally as we move forward-as a county, state and nation. Right now- it’s too hard to predict as final budgets are not yet finalized. Our local leaders aren’t really sure, and our Fresno County CAO continues to say the sky is falling and the financial future is bleak. Although this isn’t the first time he has made such a prediction. One positive note- the stock market is back on the rise. Trading is happening, people are reinvesting and moving their current portfolio around. As far as financially- there seems to have been a spark, rather than a fear driven panic for Americans to resume planning for their future. The one common theme in all of this – hard working Americans really want to get back to work and somewhat of a normal life.
This agency and the people who work here- are truly front lines workers. We battled a positive case of Covid19 in our dispatch center. We recovered and pressed forward. We scrambled for PPE, as many people- both private and government agencies ran short and were not prepared for a pandemic. This agency showed that even through all of that, we come to work and serve the public. Many of you never stopped- arresting criminals, handling your cases, processing your crime scenes and evidence, dispatching calls and interacting with the public. Our profession has not stopped – a 24/7 operation cannot be put on hold. This fact has been reiterated once again through this pandemic.
In the coming months, you will start to see many people try to justify their existence as essential workers. “Essential workers,” is a term – commonly used by those trying to justify their existence in the workforce.
Every day- for as long as you have served in law enforcement- you have been a front line, boots on the ground, essential worker(s). It means being exposed each shift without PPE and performing a job because that’s what you signed up to do. There is a difference.
Those who work in the supply chain, are absolutely important to the economy. However, they don’t serve actual people, mostly face to face- each time they report to work. It’s a very long logistical chain that is used. The “fair,” way is to call it essential. You will never hear me say things like our county family, and we are all in this together. While we share the same employer and work together for the common good of our community- there is a stark difference in what we do as deputies, dispatchers, etc.
When this crisis called for everyone to shelter at home and-if possible, work from home- we still served in the streets, responded to emergencies- around the clock. Our jobs, by nature- are inherently dangerous. The coronavirus crisis added an additional airborne threat in dealing with the public.
As I stated earlier, the government was caught with little to no inventory on proper PPE for its essential workers. The reason why is laid out in this article. In short, government policy makers who denied the extra dollars over the years- to go towards other priorities, is where the chain links broke. This insightful article I read recently in The Wall Street Journal explains the issue more clearly. It’s titled, “Miscalculation at Every Level Left U.S. Unequipped to Fight Coronavirus,” A shortfall in masks lays bare the blunders by hospitals, manufacturers and the federal government.
The article is one of the best written and most honest I have read during this entire pandemic. The article described a hospital official trying to put on a mask and the elastic straps break. This was due to the breakdown of the mask straps- since it was from the 2009 H1N1 outbreak, also referred to as the swine flu. Although the outbreak was not declared a pandemic- government officials did not learn a valuable lesson from the crisis. Instead- as we started to bottom out of the recession, the approach was looking towards building up, and socking more profits away. Specifically, in the hospital industry – a bid to increase profit, resulted in slashing inventory of all supplies. Rather than bulk up after the swine flu, hospitals turned to inventory-tracking software to monitor stocks of protective gear and other supplies, replenishing only as needed.
Manufactures of these PPE supplies were also impacted during this time. Bulking up production, meant only to be left holding millions of extra items. None of the supplies were of interest to the American people. So, to create a profit they were sold overseas at a fraction of the cost.
The US government focused more on preparing for terrorism than for a pandemic. Despite the severe 2009 H1N1 Swine Flu, the government lacked a permanent budget to buy protective medical gear for its Strategic National Stockpile of supplies for health emergencies.
Hindsight is always twenty-twenty. Those who prepare are always ready. Those who are ready have prepared. Many of us in this profession have always been ready because we prepare. We don’t let complacently dictate our lives. We live each day as a privileged day to be on this earth.
Public Employers Have Additional Labor Relations Powers in an Emergency—Expect To See Positive and Negative Uses of Them
We live in extraordinary times. None more so than our first responders, who bravely battle on the front lines of this global pandemic. Dramatic changes are likely to pervade all of our lives even when, to whatever degree, state and local emergency orders are lifted.
One change likely to impact everything from bargaining rights to pensions will be public entities exercising emergency powers in their employment relationship with employees. Public entities’ emergency powers are reflected in collective bargaining laws, which permit them to act first and bargain later during an emergency. They are also recognized in constitutional law, which suggests there are limited circumstances that permit public entities to violate contractual obligations in an emergency. Fortunately, both sets of laws significantly restrict public agencies’ ability to act unilaterally to affect long-term change. But that will not stop some from aggressively pursuing unilateral action as this public emergency deepens and lengthens.
Collective Bargaining During Emergencies
Most California-based peace officers’ collective bargaining rights arise under the Meyers-Milias- Brown Act, which can be found in Government Code section 3500 and subsequent provisions. Section 3504.5 provides that generally public agencies must provide advance notice to employee organizations of changes to matters within the scope of representation—typically changes to wages, hours or other working conditions. Subsection 3504.5(b), however, provides: “In cases of emergency when the governing body or the designated boards and commissions determine that an ordinance, rule, resolution, or regulation must be adopted immediately without prior notice or meeting with a recognized employee organization, the governing body or the boards and commissions shall provide notice and opportunity to meet at the earliest practicable time following the adoption of the ordinance, rule, resolution, or regulation.” In other words, in an emergency, a local public employer may act first and bargain later. This right is restricted. The agency must establish that the need for unilateral action is tied directly to the emergency at hand and cannot await normal bargaining processes. And even if it satisfies this standard, and acts unilaterally, the agency must then bargain “at the earliest practicable time.” Not some far off time in the future, but as soon as it is capable of bargaining. Typically, that should be a matter of days, not weeks.
Five weeks into California’s statewide Shelter in Place Order (at the time of writing), the reaction of public entities to this crisis and their use of section 3504.5(b) rights has been interesting. Many are acting unilaterally to help and support employees. For example, agencies have awarded first responders and other employees performing disaster relief work additional paid leave, or have suspended vacation accrual caps to prevent employees from losing vacation accruals. Some are engaging with employee unions—remotely, of course, by telephone or video-conference, our new way of bargaining—on safety issues, like quarantining or notice if positive COVID-19 cases occur, or benefits issues, like worker’s compensation presumptions or paid leave for employees sent home or ordered quarantined. Notably, however, employers’ actions carry an air of noblesse oblige about them since few have reduced these additional benefits to written agreements, even though they are negotiable items.
One suspects that public entities worry that entering into written agreements on such matters now will undermine their right to act unilaterally in the future. Presumably, such reservations are motivated by genuine fear that public employers may, if the economic consequences of the emergency become as severe as many are projecting, have to consider layoffs, furloughs and takeaways. The latest unemployment figures show more than 22 million Americans unemployed. Public employers seem to prefer to leave their option to take unilateral action as open as possible.
Unilateral Impairment of Contract Rights
Aside from collective bargaining, perhaps the bigger threat is presented by those who will encourage public entities to overreach and try to impair existing contractual obligations. That could mean attempts to change benefits under an existing MOU; more likely, it will produce another round of pension attacks.
Attacks on public employee pensions come, predictably, with every economic downturn. In 2018, your author argued Cal Fire Local 2881 v. Public Employees Retirement System (known as the “air time” case), which involved Jerry Brown’s Public Employee Pension Reform Act. Those “reforms” were premised on the “fiscal emergency” created by the 2008 Great Recession. Governor Brown argued that the legislature could act unilaterally to reduce certain existing pension benefits (in addition to creating new lower tiers of benefits) because of how severely the economic downturn, and the concurrent increase in pension contributions, impacted public finances. But because a booming economy had returned by the time the case was argued, those arguments seemed dated. The Supreme Court ultimately avoided the question of the State’s exercise of its emergency powers by ruling that the right to purchase pension credits at issue in the case was not a pension benefit and therefore was not protected by vested pension protections.
The economic impacts of the COVID-19 emergency appear more severe than even the 2008 Great Recession. Much will depend on how quickly the economy bounces back and whether the pandemic causes wholesale societal changes, as some predict. So expect anti-pension advocates to dust off what is called the “necessity” defense to justify impairing public employee pension rights. Fortunately, constitutional law sets a high bar on these efforts. All previous attempts to impair public employee pensions as a necessity in an emergency have failed.
The primary sources of the necessity defense are two United States Supreme Court cases some 40 years apart: the depression-era decision in Home Building & Loan Assn. v. Blaisdell in 1934 and U.S. Trust Co. of New York v. New York in 1977. Those cases recognized that in an emergency the federal Contract Clause was not an absolute bar to subsequent modification of a public entity’s own financial obligations.
This body of law was applied in California in 1979 in Sonoma County Org. of Public Employees v. County of Sonoma. There, after Proposition 13 was passed and dramatically reduced property tax revenues for public entities, the Legislature passed a law which nullified any local agency agreement to pay employees cost-of-living adjustments greater than those received by state employees. Drawing from both Blaisdell and U.S. Trust Co., the California Supreme Court crafted a four-part test which provides that a legislative enactment that impairs a private contract right is permissible only if it: (1) protects basic interests of society; (2) is justified by an emergency; (3) is appropriate for the emergency; and (4) is temporary and defers, but does not destroy, the vested contract rights. The California Supreme Court ruled that the legislation before it caused substantial impairment because a contractual salary increase would be “irretrievably lost.” Despite legislative analysis of a projected $7 billion loss in local property tax revenues at that time (about $25 billion in today’s money), the Court rejected the government’s claims of a fiscal emergency and that the legislation was necessary to “maintain essential services.” Impairment of contract is permitted due to fiscal exigencies only when “legislation was temporary and limited to the exigency which provoked the legislative response.”
Thus, while a public entity may in a bona fide emergency have a right to impair contract rights, courts use strict scrutiny to guard against it—the highest constitutional bar to clear. As Justice Harry Blackmun warned in U.S. Trust Co., even during an emergency, “[a] State is not completely free to consider impairing the obligations of its own contracts on a par with other policy alternatives.”
Thus, while Governors and others have frequently attempted to use “emergency” justifications to impair pension rights in the past. None have succeeded. Stay tuned for the next round of battles.
Finally – with all the civil unrest happening around the United States, we must rely on one another more than ever. This applies not only in this department- but in our profession. Law Enforcement is under attack. I am proud to say- this agency is full of good human beings who do not take their job lightly. Many of you are very skilled at de-escalating tense situations. Throughout my career, people who have demonstrated use of force (outside of our lawful scope) have been terminated. I am reminded recently of the message during the Easter Weekend from Sheriff Mims regarding the closure of Fresno County Parks due to Covid19. The message was simple, but clear- and I will paraphrase – nobody allowed in county parks. Also- removing people should not result in any use of force whatsoever. This is how we operate at this department. I commend all of you for the job you do and acting lawfully and within policy, especially when dealing with situations that can result in use of force or possibly death to the people we serve.
Stay safe and please keep watch over your partner.
The month of April was busy with a lot of activity going on related to COVID19. There was a positive case in our dispatch center which caused some different planning when it came to FSO Dispatch. The strain has been with the exposures, dispatchers who were sent home due to that one positive test. Employees have been, and are still quarantined for 14 days. Some people may have symptoms, while some may not. But the precaution, following the recommendation of the County Health Doctor, is to 14-day quarantine in order to stop a complete outbreak. All employees and other agencies should have been told this is putting a strain on the radio and call takers. Any help is appreciated, just until we can get out of this and back to full operations.
This positive test came on the heels of Dispatcher Appreciation Week, so trying to backtrack the exposure was challenging. Nonetheless, we were able to get through this positive test with very little collateral damage. I applaud all the dispatchers who continued to serve the public during this time, and those who took the precautions not to infect their peers facing a possible exposure. Those who could really stepped up to the plate.
Working with Sheriff’s Management to deal with the positive test was seamless. Things seem to be back on track now. Lt Gilbert will be continuing to monitor the situation in dispatch until we are back to normal. Weekly deep cleaning and daily disinfecting will be ongoing in the center.
The FDSA Board of Directors, voted unanimously on a bylaw change regarding the number of board members serving on the FDSA Board of Directors. Currently, the bylaws state there are 13 board of director positions and four executive board positions. We have been holding some vacant positions since our last election due to promotions and retirement. The board has discussed reducing this number down to a more manageable level.
After much discussion, the board took a position to lower the number down to the recommendation of 9 board of directors and 4 executive board members. The official vote was made on Wednesday May 6th during the regularly scheduled FDSA Board Meeting.
By reducing the numbers, our board of directors will be in groups of three (3) when they are elected to their board seats. During this currently election, the only offices that will go out to the members will be for the two executive board seats, 1st Vice President (Currently held by Isaac Torres) and Secretary/Treasurer (Currently held by Jeff Shipman). This will be voted on soon by the membership.
FCERA Earning Statements
During the month of April is when Fresno County Employees Retirement Association puts out your yearly retirement benefit statement. Many of you called me due to some information that was pretty confusing put on your retirement statement. At first glance, it’s quite confusing, and is putting numbers that just don’t seem factual.
Some examples I saw were 44 year of service at age 70 pays you about $3,000 a month. Others were at 25 years of service you would have $7,000 a month. Obviously, these numbers are all over the board. I contacted our retirement association representative and FDSA Board member John Robinson to advise him of the issue. John looking into the reason why this is continuing to happen.
I have attached the graphs for all of you to be able to cross reference your age (at time of retirement), years of service (at time of retirement) which will give you the percentage on where you will be with those two numbers. Take the salary you make today and use it as a reference of what a scenario would look like (today) if you were to retire based age, years of service and salary. The pay will only get better from here depending where you are at in your career.
I want to clarify some mis information that is being talked about and is simply false. A couple members asked me specifically about PEPRA and why the FDSA voted on that. I was also asked why we got rid of a cost of living adjustment for PEPRA employees. Finally, is there a way to get rid of PEPRA altogether.
PEPRA – Public Employees’ Penson Reform Act took effect January 1, 2013. This was a reform act crafted by then California Governor Jerry Brown. This act changed the way retirement benefits are applied to public employees within the State of California. This act was worked on by Gov. Brown in all of 2012 and approved by California Legislators and became law 1/1/2013. The purpose of it was to get in front of a pension overhaul conversation that were intense during this time. Pension reform has always been funded by private billionaires. They persuade the ultra-conservative Republican lawmaker(s) throughout the state. Side-note: We actually saw these go through in San Diego and San Jose, however, after being litigated they were reversed back to a traditional defined benefit pension system.
Here are the employees who would fall under PEPRA:
• Any new hire who joined a public service retirement system in California after January 1, 2013, with no prior membership in another California public retirement system.
• Any employee who joined a public service retirement system in California prior to Jan 1, 2013, who, on or after Jan 1, 2013 is hired by another public service retirement employer following a break in service more than six-months.
• A new hire who joins a public retirement system for the first time on or after Jan 1, 2013, and who was a member of another California public retirement system prior to that date but who is not subject to reciprocity by that public retirement system.
All members who don’t fall into the above definitions above are considered classic members. Classic members will retain the existing benefit enrollment levels for future service with the same employer. That is PEPRA in a nutshell.
There were questions asked why the FDSA voted to allow this. The answer to that is NO PUBLIC AGENCY had a choice on this. This was passed through an ExecutiveType Order from the Governor’s Office and enacted by the California Legislator.
There is one component the FDSA opposed with the FCERA board regarding PEPRA - which was cost of living adjustments. There is a big misunderstanding that COLA increases were banished with PEPRA – that is completely false. CALPERS has Cost of Living adjustments built into their PEPRA plans. The 20 counties in the state who fall under 1937 Act Retirement Systems, had to decide independently if they would keep the COLA.
When this was being voted on by YOUR FCERA Board – FDSA asked our safety board representative and Chairman of FCERA at the time, Eulalio Gomez, to vote in favor of continuing the COLA’s for Fresno County Retirees who fall under PEPRA. This vote did not pass and the COLA was discontinued. This was disappointing that our own FCERA Board would not vote in favor of continuing the COLA. Will it ever come back or be reversed? That is never off the table, but accomplishing something like that and reversing it would be very difficult. The current makeup of the retirement board would not be in favor of doing something like this. I am currently discussing the idea with John Robinson and FCERA to see how to go about accomplishing this.
I have attached the table for PERPA pension, taken from the FCERA employee handbook. You can see based on the age, years of service, what the percentage will look like when it is your time to retire.
Again, we as the FDSA are here to represent the needs of our members. This doesn’t mean we can move mountains. However, take ideas, suggestions, and input from the members and as a board, we move forward with one clear message.
We look forward to some of the restrictions being lifted to allow us to gather back together as a department.
Current Ave Rates %
July 1, 2020
General Tier 1 (0)
General Tier 2 (-0.21)
General Tier 3 (-0.01)
General Tier 4 (+0.15)
General Tier 5 (+0.13)
Safety Tier 1 (-0.78)
Safety Tier 2 (-0.24)
Safety Tier 4 (+0.14)
Safety Tier 5 (+0.04)
Happy New Year 2020 to all of you. Things have started off on the right foot at the FDSA. Our website is up and running, along with the app that is compatible with both Apple and Android phones. This is the best and easiest way to stay connected with your hours, wages and working conditions. Those of you who are using it, if you see improvements that can be made please let us know so those improvements can be made. We will consult with the creator of the website and make this a user-friendly system that has little to no glitches moving forward. I have also opened up the availability to sign up for the website up the chain of command so communication is seamless. This is important for member communication along with staying connected to the many community support events and partnerships we have throughout the Fresno community.
We have finally launched the flooring project at the FDSA. This project has been a few years in the planning process. We wanted to ensure the best product for years to come and limit member’s dues paying for the project. I am happy to say, this project will not be using any membership money to fund. Proceeds from Uptown Bar and Grill and some community donations will help fund this project! This flooring will transform the FDSA building and complete the final phase of the remodel phase that was started in 2010. I know this sounds like a long process (10 years) – but the FDSA Board of Directors direction was not to use any member dues to do this. From building rentals and other fundraising sources, we have built up our reserves to make the improvement.
I will be taking a by-law proposal to the FDSA Board of Directors to lower the Member Rate when renting the FDSA building for an event. Currently the rate is $350 to rent the building. I will be asking it to be lowered to $250 for a member event. Different factors play into the reduction, but I think it is warranted. My hope is this will get more member involvement and the ability to rent a building that is owned by your association. Many of you already do utilize it and have had several events here over the years.
Aflac for PORAC
Fresno Deputy Sheriff’s Association
Welcoming in the new year of 2020, our PORAC AFLAC agent, Jamie Amstutz will be available for all Fresno Deputy Sheriff’s Association Members:
Wednesday, February 19th from 7:00 am and throughout the day between and for all briefings.
Location: Area 2 Substation – 5717 E. Shields, Fresno, CA
Jaime was at the FDSA during shift signups, but wanted to come back and make this available to all members. Lt. Curtice has opened up Area Two all day to host the AFLAC signups. No need to RSVP – just show up!
Accident Advantage – Covers you and family for accidents, on or off the job!
AfLac Cancer Protection Assurance – Level 2 – Pays cash benefits at a time when needed most
Critical Care Protection – Option 3 - Pays first occurrence, hospital & continuing care;
Hospital Choice – Option 1 - Help close the gap on high deductibles, co-pays, and other unexpected costs:
Download my app to easily connect with me on the go! Text Jamie Amstutz to 36260
Morgan Stanley will be at Area Two as well during the same time as Aflac. Heath Seltzer has attached a brief description of what he does and how he can help FDSA members with their future planning. Heath offers a variety of financial options for members who are ready to start investing into their future. If you haven’t thought about wealth management and planning for the future – it may be worth five minutes to discuss some options with Heath than can benefit you and your family.
Wealth planning. It all starts with one meeting.
Heath Seltzer & Kevin Wright are Financial Advisors at Morgan Stanley Wealth Management and provide Retirement Planning Services to 170+ police and fire families. They provide complimentary retirement planning consultations and written Financial Plans to help each family map out their retirement spending including pension, deferred comp, IRA, and other investment accounts.