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To settle the question of whether canine-care pay was overtime in the strictest, not-included-in-retirement sense, Conger called Kyle Elser, payroll manager for the City of San Diego’s auditor’s office, to the witness stand and had him explain the Earnings Codes Document referred to in the San Diego Municipal Code, section 24.0103. Conger looked at the document as he said, “There is in bold caps at the beginning the explanation: ‘The add-on earnings codes listed below are classified as “negotiated specialty add-ons” and are included in retirement based compensations because all employees performing that class of work during their ordinary work hours on a consistent basis earn them at the same rate of pay.’ Do you see that?”

Elser: “Yes.”

Conger: “If you go two more pages down…there’s a list that says, ‘1K9A, canine-care pay,’ correct?”

Elser: “Yes.”

Conger: “Canine-care pay is actually in the…Earnings Codes Document explicitly listed as included in base retirement earnings compensation, correct?”

Elser: “Correct.”

Conger went on to point out that the document had been signed by the City’s personnel director, Rich Snapper, and the city manager, Lamont Ewell, and a handful of other city officials and ratified by the city council and that this had happened eight years running.

Stiffler, faced with this damning evidence, stuck to his argument that if it’s paid at the overtime rate, it’s overtime, and overtime is not included in retirement compensation. Therefore, it was an “error” that the code for canine care was on that list. He was backed in that conclusion by Elser, who said, “My plan is to remove [canine-care pay] altogether, because that code has never been used. So my plan is — I will note it in the memo that this code was entered in error, never been used.”

Reached by phone recently, Conger says he argued that 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.”

Judge Judith Hayes found for the plaintiffs. “The court finds,” she wrote in her decision, “that canine care pay is not overtime and should be included in the determination of final compensation. Canine care pay is not overtime pay in the classic sense. Each K-9 officer receives the same fixed pay for canine care, regardless of how many off duty hours are spent attending to the animal in question. This pay doesn’t vary on the basis of whether or not the officer is called in to work overtime with the K-9. This compensation is more akin to a part of the regular periodic compensation received by the officers for their work as K-9 handlers.”

Instead of accepting defeat, the City appealed the ruling and hired international law firm Latham and Watkins to manage the appeal for them. “We didn’t think the ruling was correct,” City Attorney Mike Aguirre says. “And we’ve had a lot of success using Latham to handle appeals. We’ve also had a lot of success with them on the Police Officer’s Association cases. We felt strongly that the City should not have to pay any judgment, and we didn’t want to see this established as a precedent.”

But the appeal was to no avail. The appellate ruling, which was filed January 29 of this year, declared the City’s contention that canine-care pay never should have been included in retirement pay to be “based on a faulty reading of the ordinance. The second paragraph of section 24.0103 does not exclude all overtime payments from the definition of base compensation.”

The appellate opinion continued, “The City next contends this court should reverse the judgment because after the judgment a City auditor prepared a revised earnings codes document that now expressly excludes canine care pay from Base Compensation, and provides that the prior inclusion of canine care pay was a ‘mistake.’ The City requests that we take judicial notice of this Earnings Codes Document, which was created after the June 28, 2006 judgment, and expressly applies only to earnings after July 1, 2006. The City also requests that we take judicial notice of several documents entitled ‘Acknowledgement of Earnings Code’ signed by various City officials on January 25, 2007, four days before the City filed its opening appellate brief in this case. This evidence is not properly before us. It is a fundamental principle of appellate law that our review of the trial court’s decision must be based on the evidence before the court at the time it rendered its decision” (italics theirs).

The appellate court’s final word on the matter is that the City “will have to include canine care in base compensation for the purposes of calculating retirement benefits. This order applies only to canine care pay earned after July 1, 2000, and earned at a time when canine care pay was identified in an Earnings Codes Document within the definition of Base Compensation. As so modified, the judgment is affirmed. Appellant [the City] to bear respondents’ [Sloan’s, Mills’s, and Hubka’s] costs on appeal.”

Conger says the pension money involved in the case amounts to “about a couple thousand dollars per officer per year. So if it’s all completely added together, we are talking in the tens of thousands, or possibly $100,000 for everybody.”

The City could have settled, Conger believes, “for less money than they paid Latham and Watkins just to do the appeal.”

And how much did the City pay Latham and Watkins? Aguirre declined to say. Conger says, “I’ve done a public records request for Latham’s bills, and I can’t get them. I’ve been after them for four months. But it’s my belief that Latham has charged the City over $300,000.”

But the costs don’t stop there. The San Diego Police Department’s motorcycle officers, who receive extra pay for the at-home care of their bikes, filed suit to have their motorcycle-care pay included in their pension calculations. Mike Conger represented them. The case was settled.

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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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