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The City of San Diego’s foundering financial ship has struck another shoal in the form of a lawsuit filed in 2005 by officers of the San Diego Police Department’s canine unit. The dog cops maintained that the extra pay they receive for handling dogs ought to be counted in their base compensation when it came to figuring their pension pay. Though a document used by the City’s own payroll department seemed to support the plaintiff officers, the city attorney’s office rebuffed efforts to settle the case, took it to court, lost, appealed with the help of an expensive outside law firm, and lost again. The decisions to fight and appeal might have cost the City hundreds of thousands of dollars it could ill afford to lose.

“I was contacted in 2005 by some San Diego police officers who asked me if I would look into this issue,” says Rancho Santa Fe attorney Mike Conger. “Their issue was the City was not including their canine-care pay in the retirement calculation, and the officers believed the City should be. Well, I did a little background and investigation, and I came to believe that the case had merit. So I offered to help them.”

What Conger found to support the officers’ contention was “the City’s Municipal Code, which in this particular case is section 24.0103.… That code section says, to figure out whether something is included or not [in figuring pension pay], you have to look at these earnings code documents that the city payroll systems uses. For all the different types of pay the City has, each one has a certain code. The code for canine-care pay is listed in the included column.”

Types of pay listed in what Conger calls “the included column” ought to be counted when city employees’ pensions are figured. But in the case of canine police officers, their canine-care pay wasn’t being counted, Conger explains. “So we filed a declaratory relief lawsuit, asking the court to take a look at this and determine who is right.”

Police dogs are not left at the police station at the end of their handlers’ shifts. They stay at the homes of their handlers, in four-by-ten-foot kennels. On May 21, 2006, officer Peter Mills, then a 31-year San Diego canine-unit cop and one of three officers who originally approached Conger, testified in court as to why the dogs go home with their handlers every night. “[It’s] not only the bonding,” Mills said, “but there’s always training going on. He’s not like a normal yard dog, where you open the kennel and go in the house and watch TV for an hour. You have to be with your dog [when he’s out of the kennel]. That is our canine-unit policy because of the danger or the liability if someone came into your yard while the dog is loose [or] the dog gets out and gets hurt.… Even while you’re watching them, you may be calling them to you — there is always some kind of training going on with this dog, because our biggest goal is to have the perfectly trained dog. If you think about it, you’re releasing this dog on a person to take this person down. You have to be able to call them up.… Once the dog is on the bite, you have to take off the bite. You do this by building the bond and always being with that dog. If there’s no bond, you’ll have a lot less control.”

Mills continued, “The whole time I had police dogs…none of my dogs ever interacted with my family members. I have another dog at home. They’re completely separate.”

Asked to explain what goes into canine care at home, another plaintiff, Detective Steven Sloan, a 21-year canine-unit veteran, testified, “My responsibility is basic 24-hour care for the dog. I feed him. I bathe him. I have to clean his kennel. I have to take him to and from the vet. I have to clean the vehicle that he rides in. It is somewhat like having a child, because 24 hours [a day] you have to pay attention to what the dog is doing.… I have to exercise the dog, throw the ball for him, especially on days off, when I’m not in a work environment. I have to ensure the dog stays healthy.”

Conger asked Sloan, “Approximately how much time do you spend on a weekly basis for your responsibilities in caring for the [dog]?”

“On a weekly basis,” Sloan answered, “I would say between five and seven hours.”

Officer Paul Hubka, the third plaintiff in the case against the City, estimated he spends six to seven hours a week. (Hubka, incidentally, is the officer whose police dog Forrest was found dead in the back of Hubka’s patrol car on June 20 of this year. The car was parked in the driveway of Hubka’s home in Alpine, where the temperature crested 100 degrees that day.) Mills placed his canine-care time at seven to ten hours a week. All of them get paid an extra half hour per day, or three and half hours per week. A lot was made in court over just how that pay is received and whether it differs from overtime pay, which, everyone agreed, is not included in the determination of retirement benefits. When Sloan testified, Conger, who wished to establish that canine-care pay is part of base compensation and not overtime, asked him, “When you work overtime…do you clock in and clock out or fill out a pay record?”

Sloan answered, “I have to fill out an overtime slip every time I work overtime.”

Conger: “Do you do that for the canine-care responsibilities?”

Sloan: “I do not.”

Conger: “Would it be correct to say that your canine-care responsibilities are paid by the job as opposed to by the hour?”

Sloan: “Correct.”

In his cross-examinations of the three plaintiffs, and in his closing argument, deputy city attorney Mark Stiffler — who no longer works for the city attorney’s office — stressed that regardless of the fact that it is paid automatically, canine-care pay is 3.5 hours a week at the overtime rate. “Are you aware that overtime isn’t included in retirement-based compensation to determine your retirement allowance?” he asked Sloan, who answered, “I’m aware of that.”

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Comments

JohnnyVegas July 16, 2008 @ 6:09 p.m.

The welfare queen cops just keep fleecing the San Diego taxpayer.

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anony_mous July 16, 2008 @ 7:08 p.m.

1.

The welfare queen cops just keep fleecing the San Diego taxpayer.

By JohnnyVegas 6:09 p.m., Jul 16, 2008

" Though a document used by the City’s own payroll department seemed to support the plaintiff officers, the city attorney’s office rebuffed efforts to settle the case, took it to court, lost, appealed with the help of an expensive outside law firm, and lost again. The decisions to fight and appeal might have cost the City hundreds of thousands of dollars it could ill afford to lose."

How about mikey tilting at windmills again???!!!???

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JustWondering July 18, 2008 @ 7:24 a.m.

After reading this story, once again I wonder which inmates are running this asylum. From the testimony its clear these employees worked the hours. The court reasoning is sound; this was NOT overtime and thus qualifies for their retirement calculation. Heck, the plaintiff’s case is made by the City’s own documents no matter what theoretical fabrications are advanced by defendant’s attorneys.

With these facts CLEARLY in evidence, our beloved City Attorney, not getting his way, decides to waste more taxpayer dollar on an appeal. But, not an appeal handled by his office, no, that could be damaging should he loose, so why not let the taxpayers take on the risk. End result another loss, this time costing the taxpayer another $300K or more from their meager treasury.

I’ll give Mr. Aguirre credit though, we learned, after getting his rear end kicked once again, the City decided to settle with another group over similar litigation.

I don’t see the same scam here as our prolific poster, Johnny V, always likes to claim. No, I see a skilled attorney, Mr. Conger, doing some due diligence and bringing forth a claim on behalf of his clients. Even JohnnyV recognizes skilled lawyering.

If there is a scam being perpetrated on the taxpayer this time, it’s the competency of our City Attorney, more specifically his TOTAL inability to carefully analyze a case before going off willie-nillie and emptying the taxpayer’s treasury. It’s not the first time, and it won’t be the last time before he leaves office in December.

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JohnnyVegas July 22, 2008 @ 9:29 p.m.

Even JohnnyV recognizes skilled lawyering.

I only see properly compensated OT-not pension $$$.

The problem was the City mis-classified those hours in their computer system.

Glad they fixed it though.

BTW-I have to admit $300K for an appeal is a bit on the high side-I could have done it for $5K-and done just as good. I am dead serious. Should have kept that in house.

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JustWondering July 23, 2008 @ 8:31 a.m.

Seems the court disagrees with you. It's analysis was it wasn't overtime, and worse, it gave little, if any weight to the integrity of the testimony or the theory presented by the defense. Simply, it couldn’t be an error if “five different people over eight different years — so that is 40 different times — all made the same mistake [by signing the Earnings Codes Document]. That just doesn’t seem logical.”

Now come on Johnny, a bit on the high side! That's the understatement of the year. Heck, you claim this appeal was worth $5K, yet the City paid $300K!! I thought there was $250K limit in place? Did the City Council approve these costs? We all know those "big name" firms have a lot of rent to pay keeping those posh offices and inflated salaries.

So I'm JustWondering where all those billable hours came from to justify these invoices? If there's something that needs a thorough looking at it's our City Attorney's practice of hiring outside firms, and then their billing practices.

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Baldycent July 24, 2008 @ 8:25 p.m.

Did the city pay for Officer Hubka to leave his dog in his car so the dog could die a slow, painful death?

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Fred Williams July 24, 2008 @ 8:40 p.m.

Official Police Department Policy is clear...

Roasting dogs is NOT considered a legitimate overtime activity.

Not if it happens at a ball game, a police event, or the driveway of your own home.

In addition, eating the hot dogs is also not an official reason for claiming overtime pay and benefits.

I hope official policy is now clear to you.

Be on your way now, there's nothing more to see here...

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