SUBJECT: SEE BELOW DATE: August 25, 2016

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1 COUNCIL AGENDA: 8/30/16 ITEM: 3.6 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: Norberto L. Dueñas SUBJECT: SEE BELOW DATE: SUBJECT: DECLARATION OF EMERGENCY UNDER THE MEYERS-MILIAS- BROWN ACT RELATED TO SAN JOSE POLICE DEPARTMENT STAFFING IN THE PATROL DIVISION REASON FOR ADDENDUM To address the ongoing unprecedented low staffing levels in the Patrol Division of the San Jose Police Department, the Department is redeploying forty-seven (47) Police Officers from other assignments in order to ensure minimum staffing levels in the Patrol Division. As a result of this redeployment, an immediate Shift Rebid is necessary prior to the September 11, 2016, shift change. Under the Meyers-Milias-Brown Act, a rebid would be subject to meet and confer. Because there is insufficient time to meet and confer in good faith prior to the Shift Rebid, and the lack of Police Officers in Patrol has created a critical public and Officer safety issue, staff recommends the City Council declare an emergency. Under the Meyers Milias Brown Act, where an emergency exists, the City may make changes within the scope of bargaining prior to completing the meet and confer process, provided that the City provides an opportunity to meet and confer at the earliest practicable time. The San Jose Police Officers Association ( POA ) has acknowledged that the current staffing levels create an emergency sufficient to justify delaying the meet and confer process in this case. This memorandum is to place this matter for City Council approval, on the August 30, 2016, City Council agenda. RECOMMENDATION (a) (b) Accept this Memorandum describing the unprecedented low staffing levels in the Patrol Division of the San Jose Police Department and the public safety reasons for the declaration of emergency. Council discussion and consideration of a Resolution declaring an emergency under the Meyers-Milias-Brown Act (MMBA) based on the findings in the resolution to address the threat to public safety created by the unprecedented low staffing levels in the Patrol Division, including the redeployment of Police Officers from other assignments into Patrol and the resulting rebidding of the shift assignments for the upcoming September 2016 shift change.

2 Page 2 of 7 (c) Direct City Administration to take the necessary steps to address the staffing levels of the Patrol Division via the redeployment of Police Officers into Patrol and the resulting rebidding of the shift assignments for the upcoming September 2016 shift change. OUTCOME Adoption of this resolution and memorandum would result in the declaration of an emergency under the Meyers-Milias-Brown Act ( MMBA ) based on the unprecedented low staffing levels in the Patrol Division of the San Jose Police Department, and the immediate redeployment of Police Officers from other assignments to Patrol and a shift rebid to occur as result of the redeployment. BACKGROUND The City has previously acknowledged that there have been significant concerns regarding the recruitment and retention of Police Officers in the San Jose Police Department. The City has made efforts to address these concerns, including reaching an agreement on Alternative Pension Reform Settlement Frameworks ( Frameworks ) with all eleven (11) of the City s bargaining units, including the POA, to settle litigation arising out of the 2012 pension modification measure known as Measure B. The City and its employees believe that settling the retirement litigation will provide certainty to our employees and future employees on retirement benefits, and help stabilize the work force. However, settlement of the retirement litigation and implementation of other items agreed upon in the Frameworks are only part of the solution. Accordingly, the City and the POA have also continued negotiations on multiple items that may assist in addressing the retention issues in the Department; however, staffing levels have continued to decline and immediate steps are needed to ensure the safety of our Police Officers and of our community. The Department currently has approximately 1,109 full-time budgeted positions, including two (2) positions in the City Attorney s Office. These positions include employees in the classifications of Deputy Chief of Police, Police Captain, Police Lieutenant, Police Sergeant, Police Officer and Police Recruit. There are currently 919 filled positions as of August 17 th. However, due to the number of sworn personnel who are in the San Jose Police Academy, in the Field Training Officer program, on disability leave, on modified duty, or on other leaves, there are only approximately 812 actual full-duty sworn personnel who are considered street ready. In order to ensure the City s ability to provide public safety services, including staffing the Patrol Division, the Department has relied on Police Officers volunteering, or being mandatorily assigned, for overtime Patrol shifts. This is in addition to Police Officers being routinely held over, or mandated to work additional hours, at the end of their regularly assigned shift to provide the necessary coverage. Unfortunately, these steps have been insufficient to cover the gaps in Patrol coverage.

3 Page 3 of 7 For the upcoming shift change in September 2016: The Department has determined that a minimum of 500 Police Officers are needed to staff beats in the Patrol Division. During the last Shift Bid for the September 2016 shift change, only 413 full-duty Police Officers were available to bid for shifts. This resulted in a gap of 87 positions that must be filled to bring the staffing levels in the Patrol Division to the necessary 500. These 87 unfilled positions equate to approximately 348 ten (10) hour shifts that have to be filled per week. Even with Police Officers volunteering or being mandated to work overtime shifts under the Mandatory Overtime Staffing Plan, there remains a gap that must be filled. In an effort to provide the coverage needed in the Patrol Division to better secure the safety of our Police Officers and the community we serve, the Department has determined that it is necessary to redeploy 47 Police Officers from other assignments back to the Patrol Division. The redeployment will be spread out across almost all bureaus to lessen the impacts on those units and the services provided to the public. As this will affect the shift bid preference for a significant number of our personnel, another shift bid is necessary to account for the redeployments. As the September 2016 shift change will become effective September 11, 2016, there is an immediate need to address the staffing challenges in the Patrol Division by redeploying the 47 Police Officers and instituting a shift rebid in time for the September 2016 shift change. Because the rebid will affect the work shifts and time off requests of Police Officers, the City believes the rebid is subject to meet and confer. Because the shift change will occur on September 11 th, there is insufficient time to meet and confer over the rebid and an emergency must be declared under the MMBA in order to timely proceed with the rebid process and subsequently engage in the meet and confer process. The San Jose Police Officers Association ( POA ) has acknowledged that the current staffing levels create an emergency sufficient to justify delaying the meet and confer process in this case.

4 Page 4 of 7 ANALYSIS Staffing Levels As reflected in the chart below, the Department has been experiencing a steady decline in overall staffing levels over the last several years; these figures do not reflect the number of actual street ready personnel. This is attributable to a whole range of issues, including recruitment, retirements, and resignations. Since 2012, there have been approximately 292 resignations and 198 retirements. As of August 5, 2016, there have been approximately 20 retirements and 14 separations during the 2016 calendar year alone. This includes the number of sworn personnel who are on modified duty, on other leaves or are otherwise not fullduty. This data was pulled from the City s PeopleSoft records as of August 14, 2016, and does not include the classifications of Police Recruits or Deputy Chief. Overtime The low staffing levels have created serious impacts on the Department s ability to provide public safety services. Police Officers are working an extraordinary amount of overtime shifts both on a volunteer and mandatory basis, and in addition to those times when they are held over at the end of their shift to work additional hours. The table below reflects the staggering number of overtime hours that are required due to the vacant positions in the Department.

5 Page 5 of 7 Staffing Officers Bidding Vacant Full Time Positions Overtime Shifts per Week Required due to Vacant Positions (OT Shifts Are 10 Hours Each) Annual Number of 10 Hour Overtime Shifts March 2016 September ,352 September 2016 March 2017 (Projected) ,096 Holdovers Additionally, and as mentioned above, Police Officers are frequently held over at the conclusion of their regularly scheduled shifts to cover the shortage in staffing in the next shift. An average of 4 to 5 Police Officers regularly assigned to day shift are held over each Friday, and an average of 12 Police Officers regularly assigned to day shift are held over each Saturday. This has resulted in Police Officers working a total of approximately 7,506 holdover hours from March 2016 to August 2016 alone, as reflected in the table below. Shift Change Total Holdovers Total Holdover Hours Average Number of Hours per Holdover September March ,446 6, March August ,447 7, Redeployment and Shift Rebid Redeployment of 47 Police Officers is a necessary stop gap measure at this time and will allow the Department to staff the minimum number of positions in the Patrol Division. As mentioned previously, there are 87 total unfilled positions in Patrol after the most recent shift bid, but the City believes that it can fill 40 of those positions through other means, such as Police Officers volunteering or being mandated to work additional shifts. To lessen the impact on the Department and to the services provided to the public, the redeployment of these Police Officers will be spread out across almost all bureaus, including but not limited to administration, canine, gaming, family violence, robbery, and financial crimes. The City believes it has the ability to deploy its staff as it deems necessary; however, redeploying 47 Police Officers into Patrol from other assignments necessitates a shift rebid which is subject to the meet and confer process. Due to the length of time required to complete the meet and confer process in good faith, the fast approaching effective date of the September 2016 shift change (September 11, 2016) and the potential ramifications to public safety services if the Patrol Division is not staffed at its minimum levels, it has, unfortunately, become necessary to take immediate action.

6 Page 6 of 7 Declaring an Emergency under the Meyers-Milias-Brown Act (MMBA) Declaring an emergency under the Meyers-Milias-Brown Act (MMBA) will allow the City to proceed immediately with the shift rebid prior to completing the meet and confer process provided that the City will be required to meet and confer at the earliest possible opportunity. As shown above, the insufficient staffing in Patrol has reached a point where we need to take immediate steps to address the staffing problems. The ability for the City Council to declare an emergency is provided for in the MMBA, which governs labor-management relations in California local government, including cities, counties, and most special districts. Specifically, California Government Code Section provides that: (a) (b) Except in cases of emergency as provided in this section, the governing body of a public agency, and boards and commissions designated by law or by the governing body of a public agency, shall give reasonable written notice to each recognized employee organization affected of any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body or the designated boards and commissions and shall give the recognized employee organization the opportunity to meet with the governing body or the boards and commissions. 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. Following the declaration of the emergency, the City and Department would immediately implement the redeployment of the 47 Police Officers and conduct the necessary shift rebid due to this redeployment. Subsequent to the immediate redeployment of the Police Officers and the resulting shift rebid, the City will meet and confer with the POA over the shift rebid as well as other issues to address the staffing difficulties in the Department, such as changes that may be needed to the Mandatory Overtime Staffing Plan. In addition, because the rebid will potentially affect vacation time off requests that Police Officers believed were approved, the Department will do its best to accommodate any vacation plans that had already been scheduled and paid for prior to the notification to the POA of the potential rebid.

7 Page 7 of 7 It is worth noting that the City and the POA are currently in negotiations over a successor Memorandum of Agreement (MO A). As part of those negotiations, the City will discuss changes that may be needed to the Mandatory Overtime Staffing Plan and other items that may assist in addressing the recruitment and retention of Police Officers in the long term. As previously indicated, the declaration of emergency is limited to meet the immediate staffing needs of Patrol. Specifically, the redeployment of Police Officers from other assignments into Patrol for the upcoming September 2016 Shift Change, and the shift rebid that must occur as a result of this redeployment and prior to the September 11, 2016, start of the new shift. EVALUATION AND FOLLOW-UP None. PUBLIC OUTREACH This memorandum will be posted on the City's website for the August 30, 2016, City Council Agenda. COORDINATION This memo has been coordinated with the City Attorney's Office and the Police Department. CEOA Not a Project, File No. PP General Procedure & Policy Making. 1 City Manager For questions, please contact Jennifer Schembri, Director of Employee Relations, at (408) , or Edgardo Garcia, Chief of Police, at (408)