Berkeley City Council
April 12, 2022

Berkeley Police: Improvements Needed to Manage Overtime 25 BPD does not effectively track officer hours to enforce overtime limits.

Limits on overtime rely on effective monitoring and enforcement from supervisors. BPD’s overtime policy without enforcement does not control for excessive overtime. The monitoring and enforcement for these limits lies with supervisors, as Policy 1015 states, “Supervisors should give consideration to reasonable rest periods and are authorized to deny overtime or relieve to off- duty status any member who has exceeded the above guidelines.” BPD relies on manually prepared paper records for scheduling and tracking hours worked. Regular shifts and overtime hours are tracked on separate forms, with each overtime shift requiring a new form (Appendix III).

When tracing a sample of instances where officers exceeded overtime limits to paper overtime forms, there was no indication that supervisors were aware that these officers exceeded the overtime limits or why they were allowed to do so. There are legitimate reasons why supervisors might approve officers to exceed these limits, and the policy states that limitation of hours worked should be enforced absent emergency operations. We were unable to verify that any of these instances of exceeding the overtime limits were to staff for emergency operations.

Additionally, signing up for voluntary patrol overtime shifts are manual and first come, first serve. Supervisors post open overtime shifts on a corkboard in a central location in the public safety building. Officers manually write their badge number on an open shift to claim the overtime. This system does not necessarily block or limit officers from signing up for multiple spots.

According to BPD, officers are not required to seek approval from their supervisor, unless officers think it may impact or overlap their regular job duties.

Berkeley Police: Improvements Needed to Manage Overtime 26 Figure 11. Sign-ups for Patrol Overtime Shifts Are Manual and First Come, First Serve
Source: Berkeley Police Department
As a result of BPD’s manual processes, supervisors likely do not know how many hours an officer has worked leading up to a shift. This means that supervisors may select an officer for a new overtime shift who has already worked more than the supervisor thinks is safe.

Tracking all hours of work in one place is important because it can help supervisors ensure that officers are working safe amounts of hours, within the department’s limits, and that extra-duty overtime does not affect their regular duty assignments. One study by the Department of Justice states that overtime can be successfully managed through a combination of analysis, recordkeeping, management, and supervision.9 Without staffing software and digitized timekeeping, BPD policies and management may not be sufficient to manage the burnout and fatigue associated with overtime.

9 National Institute of Justice, Police Overtime: An Examination of Key Issues: https:// www.ojp.gov/pdffiles/167572.pdf

Berkeley Police: Improvements Needed to Manage Overtime 27 Recommendations
To mitigate the risks associated with excessive overtime and officer fatigue, we recommend Berkeley Police Department:

To ensure efficient and effective management of staffing and overtime, we recommend Berkeley Police Department:

3.2 Work to implement a staffing software solution that integrates overtime management and scheduling software. Develop
management reports that provide timely, accurate, and complete information on overtime usage. Develop a process for filling overtime shifts on a voluntary and mandatory basis, including supervisor approval. Build in warnings for when an individual is approaching overtime limits and an approval process for allowing individuals to exceed limits when deemed necessary according to the policy.

3.1 Update the department overtime policy to address the fact that there currently is no limit to the number of consecutive days worked and determine the appropriate limit for overtime that is enforceable with the goal of avoiding officer fatigue. The department may examine other jurisdictions’ overtime limits as possible criteria.

Berkeley Police: Improvements Needed to Manage Overtime 28 BPD has no contracts for overtime
security with outside entities.

The hours BPD officers spent conducting extra-duty, overtime security work for both public and private entities (work for outside entities) more than tripled in FY 2020. Personnel costs for providing security to outside entities also tripled from $160,000 in FY 2019 to almost $500,000 in FY 2020, amounting to 10 percent of all of BPD’s overtime personnel costs. BPD does not have written policies that define and govern this work. In addition, BPD does not have contracts with outside entities, which unnecessarily increases the City’s risks and liabilities. BPD’s process for tracking costs associated with work for outside entities is insufficient and we are unable to determine if the City is being reimbursed appropriately. Without documented policies and processes for establishing work for outside entity agreements, BPD cannot ensure their services are equitable and transparent.

Officers’ overtime work for outside entities more than
tripled in FY 2020.

The overtime hours BPD officers spent working for outside entities more than tripled in FY 2020, representing nine percent of all sworn overtime hours previously shown in Figure 8. The hours BPD officers work for outside entities contribute to the total strain overtime places on the department and individual officers. Outside entities are public and private organizations such as local businesses, schools, or private event organizers that request police services ranging from security, crowd and traffic management, to neighborhood patrol. Officers provide security in their capacity as BPD sworn officers and BPD pays them at the overtime rate, while outside entities submit reimbursements to the City. Officers worked with six major employers in FY 2020, and more than half (53 percent) of the overtime hours worked were for the Apple store (Figure 12). During this period, the 2,952 hours associated with the Apple store encompassed the equivalent of one full-time staff hours for an entire year.

A range of outside
entities have
requested BPD’s
services, including
but not limited to:

Retailers. BPD has provided
dedicated security services to
retail stores including the Apple
Store, Lululemon, and North
Face. BPD also provides patrol
and security for a merchant’s
association representing
businesses on Fourth Street.

Schools and universities.

BPD provides services to local
educational institutions
including UC Berkeley and
Berkeley High School (BHS).

According to BPD, services to
UC Berkeley are often for
football games. BPD’s
agreement with BHS supports
the cost for overtime incurred by
the full time School Resource
Officer or any other officer that
works in an overtime capacity
for BHS.

One-time events for private
companies. BPD also provides
services to companies for one-
time events. For instance, BPD
has provided security during
movie filming, security for
moves between commercial or
private residences, and crowd
management for
demonstrations against
installations of AT&T private
equipment.

Berkeley Police: Improvements Needed to Manage Overtime 29 Figure 12. BPD More than Tripled the Hours Spent Working Overtime for Outside Entities in FY 2020
Note: Fourth Street businesses includes holiday patrol.

Source: BPD Payroll Data
The employment of public officers for private security work, whether at an individual or department level, is not unique to BPD. Both the Davis Police Department10 and San Jose Police Department11 have procedures that enable sworn officers to provide private security overtime.

10 Davis Police Department, Extra -Duty and Off -Duty Employment Policy: https:// www.cityofdavis.org/home/showpublisheddocument/13243/636951554881270000 11 San Jose Police Department, Instructions for Secondary Employment: https:// www.sjpd.org/home/showpublisheddocument/350/637469312631370000

Berkeley Police: Improvements Needed to Manage Overtime 30 According to an Illinois Law Review study, outside entities are sometimes willing to pay the costs of hiring officers due to their capacity as sworn officers, including the ability to detain, search, arrest, and use force on suspects.12 In August 2019, the San Francisco Chronicle surveyed security businesses, retailers, and police officers to explore the growth in San Francisco police as private paid security, known as the 10-B program.13 They found that outside entities rely on the visibility of a uniformed officer in a patrol vehicle to deter unwanted theft. Additionally, outside entities benefit from officers’ broader connection and communications to local law enforcement agencies. Our audit did not investigate the complex reasons for the growth in requests.

The BPD has no procedures or written agreements for
working overtime with outside entities.

BPD does not have policies nor criteria that govern the approval and administration of department agreements for work for outside entities. We also did not find evidence of contracts or written agreements between BPD and outside entities on these overtime arrangements. Without written contracts or agreements regarding the role or authority of a private company, BPD and the City of Berkeley may bear the cost of potential hazards that surface from work for outside entities. Updated policies and procedures are essential for the proper transparency and accountability of government resources and for achieving efficient and effective program results.

12 Stoughton, Seth W., Moonlighting: The Private Employment of Off -Duty Officers (August 26, 2016). 2017 U. Ill. L. Rev. 1848 (2017), Available at SSRN: https:// ssrn.com/abstract=2830652 or http://dx.doi.org/10.2139/ssrn.2830652 13 San Francisco Chronicle, Businesses hiring real SF cops on OT to keep crime down, employees safe; https://www.sfchronicle.com/bayarea/philmatier/article/Businesses - hiring-real-SF-cops-on-OT-to-keep-14365181.php

Berkeley Police: Improvements Needed to Manage Overtime 31 In 2020, sworn officers in every BPD division provided security for outside entities, amounting to 50 percent of all sworn staff eligible for overtime on BPD’s payroll. Unlike self-employment or employment by others, work for outside entities is executed by the department and paid for by reimbursements to the City from outside entities. Nevertheless, the City and BPD’s policies on outside employment (A.R. 2.10 and Policy 1020, respectively) do not define nor address reimbursed work for outside entities pursuant to an agreement between the department and those entities. Unlike BPD, Davis Police Department has policies guiding their contracted security work for outside entities. Davis’ policies in their arrangements with outside entities include liability and worker’s compensation, application protocols, account management, time of payment, and selection of officers.

Figure 13. Apple Accounted for the Majority of BPD’s Work for Outside Entities
Source: Berkeley City Auditor
It is City practice in other areas to enter into contracts and/or execute agreements when providing or obtaining services from outside entities. For example, the City has an administrative regulation that establishes a framework for approvals, contract execution, financial recording, and billing of grants and any other agreements such as reimbursement contracts, cooperative agreements, Memorandums of Understanding, or other participation agreements that provide an award of financial assistance to support a City program or project. Adopting similar processes for work for outside entities would improve transparency and decrease risk and liability to the City.

Berkeley Police: Improvements Needed to Manage Overtime 32 A lack of written agreements and policies, together with the increase in BPD’s work for outside entities, introduce unnecessary risks and liabilities across a variety of areas. We identified the following potential risks, among others:

Liabilities. Without an indemnity agreement to clarify the role and authority of outside entities, BPD and the City of Berkeley may open itself up to additional liability. A lack of agreements also creates ambiguity as to the responsibility of an officer working on behalf of an outside entity.

While working for outside entities, officers are assigned to provide security for that entity. They do not respond to calls or perform other general police functions, yet they maintain police powers and can exercise those powers while working on behalf of the outside entity. There may also be misperception on the part of the public, the officer, or the private entity as to the scope of duties and role of the outside entity and relationship with the officer.

Conflict of interest. A lack of priorities or criteria informing BPD’s approval of contracts introduces the risk of working arrangements with a conflict of interest or divergence from City values. Without criteria, there are no formal measures against working for businesses with a history of criminal activity, or businesses involved in legal proceedings against the City.

Administrative Gaps. Without formalized procedures, BPD risks executing important administrative steps partially and inconsistently, or missing some steps altogether. A formal application provides opportunities to collect information about services needed, review and approve contracts in a uniform manner, ensure alignment with the municipal code and BPD’s stated values, and establish expectations with prospective outside entities.

No limits to hours working for outside entities. It is difficult for officers and supervisors to monitor hours spent working for outside entities without overarching guidelines or limits regarding officer’s assignments. According to BPD, the Patrol Unit prioritizes other forms of overtime above work for outside entities.

Berkeley Police: Improvements Needed to Manage Overtime 33 Fewer data to manage the workload. Without methods to track the number of requests, approvals, and contracts for working with outside entities, BPD is unable to understand trends over time and proactively manage their workload accordingly. Tracking data on outside entity requests, along with project codes in BPD’s payroll data, would provide opportunities to inform beats and staff assignments in the future.

BPD does not effectively track costs of overtime security and it is unclear if the City is charging outside entities appropriately.

BPD’s personnel costs of working for outside entities tripled from $160,000 in FY 2019 to almost $500,000 in FY 2020, amounting to 10 percent of all of BPD’s overtime personnel costs. Under BPD’s current process for tracking costs associated with work for outside entities, we cannot determine if the City is recovering the full cost for their services to outside entities.

According to BPD, they charge outside entities only for the payroll costs incurred by the officer’s work for outside entities, including benefits that are paid for overtime. The City does not recover costs associated with the use of City vehicles nor the administration of these agreements including planning, staffing, and invoicing. We also found BPD charges the businesses on Fourth street a flat fee of $5,000 during the winter holidays, even if the cost of services exceeds this amount. This arrangement pre-dates the current Fiscal Management staff, and it is unclear when or why it was established. We cannot know the full excess costs of flat fee arrangements as BPD does not identify them in their billing documents.

Without clearly understanding invoices and revenue, BPD cannot reconcile costs with their reimbursements. As a result, BPD may continually underbill for their services and not recover the full costs of officer overtime. On the other hand, BPD may overbill outside entities, which can influence perceptions about working with the City. It is difficult to track the appropriateness of reimbursements for several reasons:

BPD cannot separate out revenue. Checks are deposited into a general revenue account along with other revenues. As such the City cannot separate out specific revenues tied to work for outside entities.

Berkeley Police: Improvements Needed to Manage Overtime 34 Manual process subject to error. Data entry errors may surface as the payroll clerk manually calculates the hours worked by each individual plus the benefitted amount, as well as invoice amounts in the system. It is possible that hours do not get added to payroll, or that they get added to the wrong project code.

BPD’s billing can have errors. BPD follows a billing procedure that exists outside of the City’s accounts receivable system using spreadsheets. The department does not have quality controls to review the spreadsheets for accuracy, and the growth in requests for outside entities is outgrowing BPD’s capacity to closely monitor a growing number of the invoices to outside entities.

Additionally, revenues from outside party reimbursements are not fully credited back to BPD. Reimbursements from outside entities are deposited into the City’s General Fund, and BPD’s expenditures for overtime work with outside entities can exceed the City’s budgeted amount. According to BPD’s Fiscal Services Manager, the budgeted expenditures for work with outside entities have remained fixed at $150,000 for over a decade, despite the growth of personnel expenditures to $498,685 in FY 2020. Reimbursements for overtime work with outside entities do not replenish the overtime fund from which BPD officers were paid, and are not guaranteed to be allocated to BPD.

Without policies and documentation, BPD cannot ensure
transparent and equitable services.

BPD leadership should know how to best deploy its officer resources, but work for outside entities as it is currently operating may undermine that judgment.

The breadth and prevalence of work for outside entities in FY 2020 has essentially privatized a portion of officer overtime, and without policies to manage this growth, BPD may encounter unforeseen impacts related to equity and transparency of their services for businesses and residents alike.

Occasionally, multiple officers will provide services simultaneously for companies located in the same beat alongside the regular beat officer; this is especially true for security for various companies on Fourth street (Figure 13).

BPD does not have agreements or written procedures to prevent policing from skewing toward one specific contract or type of entity at the expense of other businesses or neighborhoods with higher service and crime response.

Berkeley Police: Improvements Needed to Manage Overtime 35 Figure 14. Work for Outside Entities in FY 2020 by Police Beats Source: BPD Beats Map on the Open Data Portal and Berkeley Police Department The lack of documentation surrounding outside entities also raises concerns around transparency and equity. As discussed previously, BPD historically provided a flat fee of $5,000 to the businesses on Fourth Street, and expenditures were higher than this fee. Without procedures, BPD may continue to use inconsistent flat fee arrangements leading the City to inadvertently charge one company less than another without criteria as to why. In addition, certain companies have dedicated contractors that coordinate their security. For instance, the firm Security Industry Specialists Inc. (SIS) handles Apple’s agreements with BPD, while smaller businesses may benefit from BPD security but lack these resources to acquire BPD’s services. Larger-income businesses can afford the additional protection afforded by sworn officers, while smaller businesses may be unable to benefit from City-sponsored security. Further, there is potential for bias or perception of bias if police working as private security encounter a dispute between an member of the public and the private entity. An officer that is providing security for a private entity may not be viewed as objective in resolving a conflict between that private entity and a member of the public. This risk is heightened by lack of regulation, documentation, and public communication.

Berkeley Police: Improvements Needed to Manage Overtime 36 While any community that wants security has a right to pay for it, it raises questions of equity of access when that extra security is provided by City- employed officers. BPD can improve equity if every business is able to access information about these services, and they provided a transparent application process for community members interested in obtaining these services. This brings up questions and considerations around BPD’s overall scope of work for outside entities given BPD’s staffing gaps, high levels of overtime, potential perceptions of bias, and the risks detailed above.

Transparency is especially important in the case of police work. Unlike most public officials—who may also be employed by outside entities—police officers retain their public authority in their capacity as sworn officers on behalf of outside entities. Since work as BPD officers is an extension of work for the City, relevant information about their work with private entities should be available internally to the City and/or the public. This practice is worthy of public discussion and evaluation.

Recommendations
To ensure work with outside entities is in full compliance with relevant laws and policies, and to increase transparency and reduce liabilities, we recommend Berkeley Police Department (BPD):

4.1 Update A.R. 2.10 and other department policies to explicitly include guidance around department agreements for work for outside entities, which is paid for by reimbursements to the City from the outside entities. Internal procedures should include appropriate criteria to identify and document the benefit to the City gained by work for outside entity agreements, and to allocate resources in a way that does not negatively impact City operations.

Additionally, BPD should document their criteria for when officers are not available or eligible for work for outside entities.

4.2 In consultation with the City Attorney, create contracts with outside entities in compliance with City policies and applicable laws.

Berkeley Police: Improvements Needed to Manage Overtime 37 To ensure the City is being appropriately reimbursed for policing services contracted out to outside entities or any other agreements (i.e., special events), we recommend Berkeley Police Department:

4.3 Develop an application for BPD’s services that is publicly available and accessible online to any interested party. Set pay uniformly according to rank and hourly rate and include a reasonable fee that covers the expenses of administering work for outside entities including workers compensation, fuel, use of equipment, and any other actual or potential costs to the City.

4.4 Reconcile invoices with the amounts received for work with outside entities at regular intervals. BPD should also implement procedures to check invoices for errors prior to billing outside entities.

4.5 Explore ways to clearly account for different funds to track revenues and expenses.

Berkeley Police: Improvements Needed to Manage Overtime 38 Recommendations and Management Response

1.1 Collect and monitor data on how often compensatory time leads to additional backfill overtime and develop a plan to monitor it.

Management Response: Agree.

Proposed Implementation Plan: BPD is currently working to implement an electronic staffing solution. The Department will assess the ability to monitor and track this information in electronic staffing in order to understand the expense and impacts of compensatory time. BPD will explore the possibility of developing a report through existing payroll and finance programs to understand the impact of compensatory time usage and practices.

Proposed Implementation Date: Estimated completion within 18 months from date of audit response.

1.2 Fill vacancies deemed necessary and/or reallocate staff pending the reimagining process and a determination of appropriate staffing levels.

Management Response: Agree.

Proposed Implementation Plan: BPD understands the impact that reduced staffing has on overtime costs and always strives to fill vacancies and operate within our budget.

Challenges in retention of existing officers, difficulty hiring new officers and many imminent retirements make it difficult to apply a timeline on implementation of this recommendation.

Recruitment efforts, prioritization of hiring and related processes and budget authority to hire will be instrumental to the department’s success.

Proposed Implementation Date: Ongoing.

We provided a draft of this report to City Management and BPD for review and comment. City Management agreed to our findings, conclusions, and recommendations. Below is the BPD’s initial corrective action plan and proposed implementation date. We find their plan to address our audit recommendations reasonable. As part of the follow-up process, the Berkeley City Auditor will be actively engaged with the Police Department every six months to assess the progress they are making towards complete implementation. The department will submit a council item every 6 months with an update on the progress of their recommendations.

Berkeley Police: Improvements Needed to Manage Overtime 39 2.1
Establish a procedure to regularly assess minimum staffing and overall staffing needs of the department. This process should document and incorporate criteria to assess staffing levels, such as calls for service, other workload, community input, and other relevant factors. As BPD prepares for the rollout of a new software system, BPD should consider how to best align the program’s capabilities with this assessment process.

Management Response: BPD agrees with this recommendation in that regular assessments assist the department with the best allocation and deployment of resources. Our staffing needs may fluctuate as priorities change, but our responsibility to meet public safety demands is always paramount.

Proposed Implementation Plan: Internal evaluations will be completed annually to address constantly changing conditions, call volume, crime data and other external factors.

The reimagining public safety efforts may also necessitate changing focus and deployment strategies. BPD will explore engaging outside consultants every ten years to evaluate patrol staffing levels so as to have a useful body of data for evaluation (for example; tying staffing evaluations to census reports).

Proposed Implementation Date: Estimated completion within 18-24 months from date of audit response.

2.2 Document and define the Patrol Unit’s minimum staffing levels in a publicly assessible format.

Management Response: Agree.

Proposed Implementation Plan: BPD will update the department webpage to include information on beat structure, teams, and deployment. This will also include current beat officer assignment.

Proposed Implementation Date: Estimated completion within 6 months from date of audit response.

2.3 Document the results of staffing assessments along with the assessment criteria. Incorporate results into staffing projections for budgetary decision making, including establishing a sufficient and appropriate overtime budget.

Management Response: Agree. Our staffing needs may fluctuate as priorities change, but our responsibility to meet public safety demands is always paramount.

Proposed Implementation Plan: Internal evaluations will be completed annually to address constantly changing conditions, call volume, crime data and other external factors.

BPD will explore engaging outside consultants every ten years to also evaluate this item.

Proposed Implementation Date: Estimated completion within 18-24 months from date of audit response though this is subject to change as it is part of the overall budget process.

Berkeley Police: Improvements Needed to Manage Overtime 40 3.1
Update the department overtime policy to address the fact that there currently is no limit to the number of consecutive days worked and determine the appropriate limit for overtime that is enforceable with the goal of avoiding officer fatigue. The department may examine other jurisdictions’ overtime limits as possible criteria.

Management Response: Agree.

Proposed Implementation Plan: BPD will review existing policy and ensure that any policy updates or clarification are completed. BPD will conduct research to review fatigue mitigation programs and contact other agencies to learn what they are using successfully. A byproduct of reduced staffing can be increased or excessive overtime where minimum staffing levels or public safety needs necessitate police response. The Department will explore options to develop data collection and monitoring within the electronic staffing solution to be able to regularly assess if there is an issue.

Proposed Implementation Date: Estimated completion within 24 months from date of audit response.

3.2 Work to implement a staffing software solution that integrates overtime management and scheduling software. Develop management reports that provide timely, accurate, and complete information on overtime usage. Develop a process for filling overtime shifts on a voluntary and mandatory basis, including supervisor approval. Build in warnings for when an individual is approaching overtime limits and an approval process for allowing individuals to exceed limits when deemed necessary according to the policy.

Management Response: BPD agrees that a staffing software solution could assist with overtime management and scheduling needs.

Proposed Implementation Plan: BPD is already heavily engaged in seeking a software solution. The RFP process is completed, and the vetting process is nearing completion to select the vendor. Following completion of a contract, the steps towards implementation will begin. The Department will have to rely on Information Technology for implementation, consequently timing will depend how this project fits the PD/IT workplan.

Proposed Implementation Date: Estimated completion within 24 months from date of audit response.

Berkeley Police: Improvements Needed to Manage Overtime 41 4.1
Update A.R. 2.10 and other department policies to explicitly include guidance around department agreements for work for outside entities, which is paid for by reimbursements to the City from the outside entities. Internal procedures should include appropriate criteria to identify and document the benefit to the City gained by work for outside entity agreements, and to allocate resources in a way that does not negatively impact City operations. Additionally, BPD should document their criteria for when officers are not available or eligible for work for outside entities.

Management Response: Agree.

Proposed Implementation Plan: BPD will work with the City Manager’s Office to identify necessary adjustments to the CoB A.R.2.10, current BPD practices engaging in reimbursable service contract, and the overall administration of departmental agreements for work with outside entities.

The Department will create a webpage on the Department’s website with information explaining the process for requesting services. This would include a point of contact to discuss criteria and evaluation of service requests, including staffing impacts. Also included will be clear language explaining that public safety response will be the highest priority.

Proposed Implementation Date: Estimated completion within 12 months from date of audit response.

4.2 In consultation with the City Attorney, create contracts with outside entities in compliance with City policies and applicable laws.

Management Response: Agree.

Proposed Implementation Plan: BPD will work with the City Manager’s Office, and in consultation with the City Attorney, to determine appropriate contract(s) for reimbursable service contracts.

Proposed Implementation Date: Estimated completion within 24 months from date of audit response.

Berkeley Police: Improvements Needed to Manage Overtime 42 4.3
Develop an application for BPD’s services that is publicly available and accessible online to any interested party. Set pay uniformly according to rank and hourly rate and include a reasonable fee that covers the expenses of administering work for outside entities including workers compensation, fuel, use of equipment, and any other actual or potential costs to the City.

Management Response: Agree.

Proposed Implementation Plan: We intend to create a webpage on the Department’s website with information explaining the process for requesting services. This would include a point of contact to discuss criteria and evaluation of service requests, including staffing impacts. Also included will be clear language explaining that public safety response will be the highest priority.

Proposed Implementation Date: Estimated completion within 12-18 months from date of audit response.

4.4 BPD should reconcile invoices with the amounts received for work with outside entities at regular intervals. BPD should also implement procedures to check invoices for errors prior to billing outside entities.

Management Response: Agree.

Proposed Implementation Plan: BPD will discuss possible solutions with other city stakeholders, including the Finance Department.

Proposed Implementation Date: Estimated 12 months from date of audit completion.

4.5 Explore ways to clearly account for different funds to track revenues and expenses.

Management Response: Agree.

Proposed Implementation Plan: BPD will discuss possible solutions with other city stakeholders, including other city departments.

Proposed Implementation Date: Estimated 12 months from date of audit completion.

Berkeley Police: Improvements Needed to Manage Overtime 43 Methodology
We audited the Berkeley Police Department’s (BPD) budget and operations for fiscal years (FY) 2015 through 2020. We assessed historic funding levels going as far back as FY 1970 when data was available. We performed a risk assessment of BPD’s practices and procedures to identify potential internal control weaknesses, including fraud risks, within the context of our audit objectives. This included a review of selected policies and procedures, as well as interviews with subject matter experts and BPD staff.

To gain an understanding of BPD’s operations and internal controls and to achieve our audit objectives, we reviewed the following:
• Biennial budget reports, financial reports, and census data summarizing historic trends in BPD’s budget and staffing.
• State and federal laws governing police overtime, staffing, and work with outside entities. • Previous audit recommendations, staffing assessments, and BPD’s organization chart informing BPD’s departmental structure and practices.
• General orders and protocols detailing BPD’s limits on overtime and minimum staffing. • Existing agreements for BPD’s police services including grants, mutual aid, special events, and outside entities.
• Written procedures and common forms used by BPD supervisors to monitor and approve overtime.
• National media on police budgeting and reimagining policing. • Professional literature on effective management of overtime and staffing in police operations. • Other audits and police practices in comparison cities related to police budgeting, staffing and overtime.

We also conducted interviews with:
• BPD police officers in the Operations and Support Services departments spanning the ranks of police officer, sergeant, lieutenant, captain, and chief. • Berkeley Police Association President and Vice President. • BPD administrative staff including the Administrative and Fiscal Services Manager and the Department’s payroll clerks.
• City leadership including the Manager of the Budget Office, the Berkeley City Attorney, and City Councilmembers.
• Peer auditors in the City of San Jose that conducted an audit on police staffing.

Methodology and Statement of Compliance

Berkeley Police: Improvements Needed to Manage Overtime 44 We analyzed:
• The City’s financial system payroll data for BPD from FY 2019 to FY 2020. • BPD budget and expenditures for each year from FY 2015 to FY 2021; BPD budgets for FY 1960, 1970, 1980, 1990, 2000, and 2010.
• BPD’s record of invoices for work with outside entities.

Data Reliability
We assessed the reliability of payroll data by reviewing it for completeness, appropriateness, and consistency.

We determined it is sufficient and reliable for the purposes of our work. The data captures that date of the hours, the staff member, authorized and actual position title, and hour code. We noted a limitation in the data in that the position title associated with individuals is their current title and does not necessarily reflect the title at the time the hours were earned. Additionally, the data does not capture adjustments made to correct labor distributions and project charges. These limitations do not significantly impact our use of the data.

Independence
Payroll Audit is a Division of the City Auditor’s Office. Payroll Audit Division performs citywide payroll functions and is a module leader for the payroll/personnel module used to record payroll costs. BPD is solely responsible for identifying the payroll codes applicable to their staff’s time reported on timesheets and overtime forms and for providing sufficient documentation to support those hours for payroll processing.

Payroll Audit is not responsible for verifying the employee’s time or the use of budget codes by the department. Payroll limits its review to ensuring that BPD payroll clerks provide the appropriate and sufficient documentation for the reported time.

To reduce the threat to our independence, we limited our work to exclude areas overseen by our office. We also selected data from closed payroll periods that was in read only status and we traced select data back to source documents to verify that the data is reliable.

We consulted with representatives from the Government Accountability Office to discuss the engagement and the safeguards we put in place. They determined that with the safeguards mentioned above we had reduced the identified threats to our independence to an acceptable level to proceed with the audit.

Statement of Compliance
We conducted this performance audit in accordance with Generally Accepted Government Auditing Standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Berkeley Police: Improvements Needed to Manage Overtime 45 City Funding
General Fund. The General Fund is the chief operating fund in the City. It accounts for all financial resources of the general government, except those required to be accounted for in another fund.

Parking Meter Fund. The Parking Meter Fund is one of the City’s major enterprise funds. It accounts for the collection of coins from the City’s parking meters and for the purchasing, leasing, installing, repairing, maintaining, operating, removing, and policing of the meters.

State Funding
State funding to BPD derives from a combination of grant funding and revenue from state ballot measures.

Alcohol and Beverage Control (ABC) Grant. This program focuses on reducing the number of alcohol related calls for service to BFD and reducing the availability of alcohol to underage persons. It includes a partnership with UC Berkeley to work with student groups in organized events involving alcohol, including “operation trapdoor” to identify students using fake IDs, and conducting patrol on house parties.

State Public Safety Sales Tax Proposition 172. Ballot measure approved in 1993, imposed a state sales tax to be used for local public safety activities. As of FY20-21, it formed 0.25 percent of the total sales tax rate in Alameda County. The state distributes Proposition 172 revenues to each county based on its proportionate share of statewide taxable sales.

Citizens’ Option for Public Safety (COPS). The State Controller’s Office allocates the Citizens' Option for Public Safety funds to law enforcement agencies according to the relative population for each county and city.

In FY 2021, Berkeley was projected to be allocated $186,209 COPS funding. The allocations may be slightly different from the projections made by the State Controller's Office due to rounding.

Asset Forfeiture Fund. Asset forfeiture is the process by which legal ownership of an asset is transferred to BPD. According to the Health and Safety Code Section 11495, the funds received by the law enforcement agencies are deposited into an account maintained by the controller, county auditor, or city treasurer. From there, they are distributed to law enforcement agencies at their request. Sixty-five percent of State asset forfeiture proceeds are distributed to state and/or local law enforcement agencies that participated in the seizure of the assets. Fifteen percent of those funds must be deposited in a special fund maintained by a council made up of local government entities. These funds are restricted to be used for the sole purpose of funding programs designed to combat drug abuse and divert gang activity (Health and Safety Code 11489). In FY 2019, Berkeley PD received $127,629.88 in state asset forfeiture funds from Alameda, Contra Costa, and Solano County. There were no reported state asset forfeiture funds received by Berkeley PD in FY 2020.

Appendix I. BPD Funding Streams

Berkeley Police: Improvements Needed to Manage Overtime 46 Mutual Aid from State Agencies. Mutual aid costs are paid for by the state for instances when the state becomes involved. Otherwise, the cost of mutual aid is the responsibility of each agency participating. Five state agencies have specific responsibilities to support local law enforcement during emergency situations:

California Highway Patrol, State Military Department, Department of Justice, Department of Corrections, and the Officer of the California State Police.

Federal Funding
Federal funding for BPD derives exclusively from grants. BPD has received funding from the following grants:

Alameda County Justice Assistance Grant (JAG) Grant. JAG-funded projects address crime by improving the effectiveness and efficiency of criminal justice systems, processes, and procedures. BPD receives funding from the JAG as a member of a consortium with the Alameda County Sheriff’s office and other cities of Alameda County. As part of the JAG Consortium, BPD used funds to supplement overtime and benefits for sworn and non-sworn personnel engaged in targeted crime suppression activities.

Office of Traffic Safety (OTS) Selective Traffic Enforcement Program (STEP). The goal of the STEP program is to reduce the number of persons killed and injured in traffic crashes using “best practice” strategies. The grant funds strategies related to traffic enforcement including but not limited to: DUI checkpoints, DUI saturation patrols, warrant service operations, stakeout operations, educational presentations, court stings. There is also a media element to enhance deterrence.

Office of Traffic Safety (OTS) Avoid the 21 Campaign. The grant activities target those who drink too much and get behind the wheel. DUI/Driver’s License Checkpoints are a key component of the grant, being highly visible, highly publicized events. Officers staff DUI/Driver License Checkpoints, multi-agency DUI Task Force deployments, and local DUI saturation patrols for each partnering agency.

Berkeley Police: Improvements Needed to Manage Overtime 47 Appendix II. Reasons for Overtime: Hours and Expenditures

Source: BPD Payroll Data

Berkeley Police: Improvements Needed to Manage Overtime 48 Source: BPD Payroll Data

Berkeley Police: Improvements Needed to Manage Overtime 49 Appendix III. Extraordinary Duty Form

Berkeley Police: Improvements Needed to Manage Overtime 50 Source: Berkeley Police Department

Berkeley Police: Improvements Needed to Manage Overtime 51 Source: Berkeley Police Department
Appendix IV . Sample BPD Patrol Timesheet

Mission Statement
Promoting transparency and accountability in Berkeley government.

Audit Team
Erin Mullin, Senior Auditor
Alejandra Barrio Gorski, Auditor I

City Auditor
Jenny Wong

Office of the City Auditor
Phone: (510) 981-6750
Email: [email protected]
Website: www.cityofberkeley.info/auditor

Copies of our audit reports are available at
www.cityofberkeley.info/Auditor/Home/Audit_Reports.aspx

Commission on Labor
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

ACTION CALENDAR
April 12, 2022
To: Honorable Mayor and Members of the City Council
From: Commission on Labor
Submitted by: Michael Berne, Chairperson, Commission on Labor Subject: Fair Workweek Ordinance; Adding Berkeley Municipal Code Chapter 13.110

RECOMMENDATION
Adopt first reading of the proposed Fair Workweek Ordinance, adding Berkeley Municipal Code Chapter 13.110.

FISCAL IMPACTS OF RECOMMENDATION
This ordinance provides for both private enforcement and enforcement by the City. Comparable jurisdictions report a small number of complaints annually, but additional staffing may be required to investigate complaints and hold enforcement hearings. Temporary staffing and one-time mailing costs will be required to conduct outreach to covered employers. The Commission anticipates that these cost projections will be quantified in a companion staff report.

SUMMARY
Key features of the proposed ordinance include:

Scheduling Notification and Requests
● Schedules must be given 14 days in advance
● Employees must be provided with an initial estimate of hours ● Employees have the right to decline hours they are given with less than 14 days notice
● Employees shall have the right to request flexible and predictable schedules to accommodate childcare, education, second jobs etc.
● Employees have the right to decline any shift that either occurs less than 11 hours after the end of their previous shift; if accepting such a shift, will be compensated at 1½ times their regular rate of pay.

Predictability Pay
● Employees will receive predictability pay equal to a specified number of hours at their hourly rate of pay as compensation for schedule changes, ranging from 1 hour of pay for a shift scheduled less than 14 days in advance but at least 24

40a

Fair Workweek Ordinance

hours up to 4 hours of pay or hours equal to the amount of hours lost when a shift is canceled or reduced
Offer of Work to Existing Employees
● Before hiring new employees, employers must offer additional hours to existing part-time employees for any new hours available
● Employees shall have 24 hours to accept additional hours Applicability
● In general, employers in Berkeley with 50 or more employees globally engaged in the following industry sectors: building services, healthcare, hotel, manufacturing, retail, or warehouse services;
● Restaurant employers with at least 100 employees globally and 10 or more in Berkeley;
● Franchisees associated with a network of franchises employing 100 or more employees globally and 10 or more; and
● The City of Berkeley as an employer.
● Specifically excluded are nonprofit organizations with fewer than 100 employees globally (which includes most arts organizations).

BACKGROUND
The City Council referred to the Commission on Labor in 2018 to draft an Ordinance to establish regulations governing the scheduling and hiring practices of qualifying businesses in Berkeley.

The City Council’s referral observed that:

Even with sick pay and strong minimum wage laws, workers in Berkeley, particularly shift workers, still face unfair and exploitative work practices. Since the passage of the Affordable Care Act, a frequent issue that has arisen is the practice of businesses keeping their employees below 30 hours a week to avoid having to provide them health care. Workers may be forced to take “clopening” shifts, where an employee covers the closing shift one day and the opening shift the next day, giving them little time for rest.

Shift workers frequently have shifts added or removed hours before they are set to begin, making scheduling impossible and creating financial difficulties for those with children who need child care.

At the time of the City Council’s referral, multiple jurisdictions had introduced or enacted measures to address these inequitable conditions, including the Cities of Emeryville, San Jose, San Francisco, and New York, and the State of Oregon, with the strongest at the time being the City of Emeryville. The referral directed the ordinance to be based on the City of Emeryville, strengthened with the following principles:

Fair Workweek Ordinance

● The right to refuse “clopening” shifts, the right to request a flexible work arrangement, and a prohibition on refusing hours to prevent the application of benefits should apply to all employers and employees
● The right to at least two weeks notice of work schedule, to decline additional hours, and to “predictability pay” if changes are made to the schedule after the 2 two week deadline should apply to all businesses of at least 25 employees ● The requirement that new shifts first be offered to all qualified existing employees until they have at least 35 hours of work per week on average should apply to all Retail, Hotel, and Restaurant firms with at least 25 employees ● All requirements of the ordinance apply to the City of Berkeley and the Berkeley Rent Stabilization Board.

Since the referral, several of the above-mentioned jurisdictions passed the introduced ordinances, in addition to the City of Chicago. Sectoral coverage in the proposed ordinance is generally modeled after Chicago, while firm size is generally modeled after Emeryville.

After many deliberative meetings before the full Commission and a dedicated subcommittee, and considering input from stakeholders including affected employers and workers, the Commission developed a proposed ordinance taking into account the Council’s direction. At its November 17, 2021 meeting, the Commission on Labor voted to appoint Commissioners Katz and Botello to draft the Fair Workweek Council report recommending adoption of the draft ordinance and to send to Council without further action from the commission. (M/S/C: Katz/Osborne. Yes: Scantlebury, Harlow, Botello, Jones, Berne. Noes: None. Absent: Medak, Schriner.) By passing this ordinance, Berkeley has the opportunity to be at the forefront of worker protections and to support the essential workers that have gotten us through this pandemic.

The Commission found many of the workers employed in the retail, restaurant, and hospitality industries suffer from low wages and unpredictable schedules, while needing to work multiple jobs just to get by. Volatile scheduling leads to difficulty in managing multiple jobs, school work, and childcare. Following the model adopted by the City of Chicago, the proposed ordinance would cover building services (including janitorial and security), healthcare, manufacturing, and warehouse services.

In response to input received by stakeholders, the proposed ordinance applies only to employers employing fifty or more employees globally (similar to Emeryville), but for restaurants or franchises would apply if the employer employed at least ten employees in the City of Berkeley and at least one hundred globally. This attempts to balance an interest in achieving the broadest coverage of any ordinance or law in the United States, while avoiding coverage of locally owned businesses that do not have the human resources support of a franchisor.

Fair Workweek Ordinance

The strengthening elements requested by the City Council are mostly incorporated, except for the applicability thresholds based on our deliberative process, compliance with federal laws as applicable, the requirement for new shift offers reflects a fourty-hour workweek, and the Rent Stabilization Board employees are presumed incorporated within City of Berkeley employees.

The City Council may wish to consider a delayed effectiveness date, such as until the beginning of the following calendar year, for private sector employers to allow for the time necessary for staff to provide outreach and education to affected businesses.

While private sector employers should be provided a reasonable amount of time to set up systems to ensure compliance with the ordinance, the subcommittee recommends that the City of Berkeley as an employer can and should implement the new procedures promptly.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
None.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
This action is not expected to have any impact on the environment and is exempt from CEQA.

RATIONALE FOR RECOMMENDATION

Enactment of workplace protections. See background discussion.

ALTERNATIVE ACTIONS CONSIDERED
The Commission recognizes the labor standards benefits of applying the right to refuse “clopening” shifts, and refusal of hours to prevent employees from attaining thirty hours per week to all employers, and applying the two week notice and predictability pay to all sectors of the economy. The right to request a flexible working arrangement remains applicable to all employers that employ ten or more employees under the Berkeley Family Friendly and Environment Friendly Workplace Ordinance, adopted in 2017. The proposed ordinance’s focus on uniform application to the seven sectors covered in Chicago’s model reflects (a) the expected education and outreach required for compliance, (b) the sectors where working conditions require intervention the most, and (c) that the employers covered by the proposed ordinance are in the best position to comply with its provisions in the near term, and does not preclude broadening coverage in the future.

CITY MANAGER
See companion report.

CONTACT PERSON
Margot Ernst, Commission Secretary, 510-981-5427

Fair Workweek Ordinance

Attachments:
1: Ordinance
Exhibit A: Fair Workweek Ordinance

ORDINANCE NO. -N.S.

FAIR WORKWEEK EMPLOYMENT STANDARDS; ADDING BERKELEY MUNICIPAL CODE CHAPTER 13.110
BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. That Berkeley Municipal Code Chapter 13.110 is added to read as follows:

CHAPTER 13.110

FAIR WORKWEEK EMPLOYMENT STANDARDS
Sections:

13.110.010 Purpose and Intent

13.110.020 Definitions.

13.110.030 Applicability.

13.110.040 Waiver through Collective Bargaining

13.110.050 Advance Notice of Work Schedules.

13.110.060 Notice, Right to Decline, and Compensation for Schedule Changes.

13.110.070 Offer of Work to Existing Employees.

13.110.080 Right to Rest.

13.110.090 Right to Request a Flexible Working Arrangement.

13.110.100 Notice and Posting.

13.110.110 Implementation.

13.110.120 Enforcement.

13.110.130 Retaliation Prohibited

13.110.140 Retention of Records.

13.110.150 City Access.

13.110.160 No Preemption of Higher Standards.

13.110.170 Severability.

13.110.010 Purpose and Intent
This chapter shall be known and may be cited as the “Berkeley Fair Workweek Ordinance”. It is the purpose of this chapter and the policy of the City: (i) to enact and enforce fair and equitable employment scheduling practices in the City of Berkeley; (ii) to provide the working people of Berkeley with protections that ensure employer scheduling practices do not unreasonably prevent workers from attending to their families, health, education, and other obligations; and (iii) to require Employers needing additional hours, whether temporary or permanent, to first offer those hours to current part-time Employees.

13.110.020 Definitions
As used in this chapter, the following terms shall have the following meanings:
(a) “Calendar week” shall mean a period of seven (7) consecutive days starting on Sunday.
(b) “City” shall mean the City of Berkeley.
(c) “Covered employer” shall mean an employer subject to the provisions of this chapter, as specified in Section 13.110.030.
(d) "Department" shall mean the Department of Finance or other City department or agency as the City shall by resolution designate.
(e) “Employee” shall mean any person who:
(1) In a calendar week performs at least two (2) hours of work within the geographic boundaries of the City of Berkeley for an employer; (2) Qualifies as an employee entitled to payment of a minimum wage from any employer under the California minimum wage law, as provided under Labor Code Section 1197 and wage orders published by the California Industrial Welfare Commission. Employees shall include learners, as defined by the California Industrial Welfare Commission; and
(3) Is (i) not exempt from payment of an overtime rate of compensation pursuant to Labor Code Section 510; and (ii) is not paid a monthly salary equivalent to at least forty hours per week at a rate of pay of twice the minimum wage required by Berkeley Municipal Code Section 13.99.040.
(f) “Employer” shall mean any person, including corporate officers or executives, as defined in Section
18 of the California Labor Code, who directly or indirectly through any other person, including through the services of a temporary employment agency, staffing agency, subcontractor or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee, or any person receiving or holding a business license through Title 9 of the Berkeley Municipal Code. (g) “Firm” shall mean a business organization or entity consisting of one (1) or more establishments under common ownership or control. In the case of a franchise, the franchisor shall be considered the firm.
(h) “Franchise” shall have the meaning in California Business and Professions Code Section 20001.
(i) “Franchisee” shall have the meaning in California Business and Professions Code Section 20002.
(j) “Franchisor” shall have the meaning in California Business and Professions Code Section 20003.
(k) “Good faith” shall mean a sincere intention to deal fairly with others.

(l) “Predictability pay” shall mean wages paid to an employee, calculated on an hourly basis at the employee’s regular rate of pay as that term is used in 29 U.S.C. Section 207(e), as compensation for schedule changes made by a covered employer to an employee’s schedule pursuant to Section 13.110.060, in addition to any wages earned for work performed by that employee.
(m) “Shift” shall mean the consecutive hours an employer requires an employee to work including employer-approved meal periods and rest periods. (n) “Work schedule” shall mean all of an employee’s shifts, including specific start and end times for each shift, during a calendar week.
(o) “Building services” means the care and maintenance of property, including, but not limited to, janitorial services, building maintenance services, and security services. (p) “Healthcare” shall mean either a Hospital, Medical Practitioner Office, Nursing Home, or Supportive Housing as defined in BMC Section 23F.04.10, or a facility that provides outpatient maintenance dialysis.
(q) “Hotel” shall mean Tourist Hotel as defined in BMC Section 23F.04.10. (r) “Manufacturing” shall mean a Manufacturing Use as defined in BMC Section 23F.04.10.
(s) “Restaurant” shall mean a Food Service Establishment as defined in BMC Section 23F.04.10.
(t) “Retail” shall mean a Retail Products Store as defined in BMC Section 23F.04.10. (u) “Warehouse services” shall mean Warehouse Based Non-Store Retail as defined in BMC Section 23F.04.10.

13.110.030 Applicability
(a) All sections of this chapter shall apply to: the City of Berkeley as an employer, and all employers in the City of Berkeley who are primarily engaged in any of the following industries:
(1) building services;
(2) healthcare;
(3) hotel;
(4) manufacturing;
(5) restaurant;
(6) retail; or
(7) warehouse services.
(b) Notwithstanding subdivision (a), this chapter shall apply only to an employer that (1) is not a restaurant and employs fifty (50) or more employees globally;

(2) is a restaurant operator employing ten (10) or more employees in the city of Berkeley and employs one hundred (100) or more globally; or (3) is a franchisee employing ten (10) or more employees in the city of Berkeley and is associated with a network of franchises employing one hundred (100) or more employees globally.
(c) This chapter does not apply to a not-for-profit corporation organized under Section 501 of the United States Internal Revenue Code unless it employs one hundred (100) or more employees globally.
(d) In determining the number of employees performing work for a covered employer during a given week, all employees performing work for the covered employer for compensation on a full-time, part-time, or temporary basis, at any location, shall be counted, including employees made available to work through the services of a temporary services or staffing agency or similar entity. (e) For the purposes of determining whether a nonfranchisee entity is a covered employer as defined by this chapter, separate entities that form an integrated enterprise shall be considered a single employer under this chapter. Separate entities will be considered an integrated enterprise and a single employer under this chapter where a separate entity controls the operation of another entity. The factors to consider in making this assessment include, but are not limited to:
(1) Degree of interrelation between the operations of multiple entities; (2) Degree to which the entities share common management; (3) Centralized control of labor relations; and
(4) Degree of common ownership or financial control over the entities.

There shall be a presumption that separate legal entities, which may share some degree of interrelated operations and common management with one another, shall be considered separate employers for purposes of this chapter as long as (i) the separate legal entities operate substantially in separate physical locations from one another, and (ii) each separate legal entity has partially different ultimate ownership.

13.110.040 Waiver through Collective Bargaining
To the extent permitted by law, all or any portion of the applicable requirements of this chapter may be waived in a bona fide collective bargaining agreement; provided, that such waiver is explicitly set forth in such agreement in clear and unambiguous terms that the parties thereto intend to and do thereby waive all of or a specific portion(s) of this chapter.

13.110.050 Advance Notice of Work Schedules.
(a) Initial Estimate of Minimum Hours.
(1) Prior to or on commencement of employment, a covered employer shall provide each employee with a good faith estimate in writing of the employee’s work schedule.
(2) Prior to or on commencement of employment, the employee may request that the covered employer modify the estimated work schedule provided under subsection (a)(1) of this section. The covered employer shall consider any such request, and in its sole discretion may accept or reject the request; provided, that the covered employer shall notify the employee of covered employer’s determination in writing prior to or on commencement of employment. (b) Two (2) Weeks’ Advance Notice of Work Schedule. A covered employer shall provide its employees with at least two (2) weeks’ notice of their work schedules by doing one (1) of the following: (1) posting the work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees; or (2) transmitting the work schedule by electronic means, so long as all employees are given access to the electronic schedule at the workplace. For new employees, a covered employer shall provide the new employee prior to or on their first day of employment with an initial work schedule. Thereafter, the covered employer shall include the new employee in an existing schedule with other employees. If the covered employer changes an employee’s work schedule after it is posted and/or transmitted, such changes shall be subject to the notice and compensation requirements set forth in this chapter. (c) An Employee who is a victim of domestic violence or sexual violence may request that the Employee's Work Schedule not be posted or transmitted to other employees.

An oral or written request shall be sufficient and implemented immediately and is sufficient until the Employee gives written permission to post the Employee's schedule.

An Employer may request a written statement from the Employee that states that the Employee is a victim of domestic violence or sexual violence. The written statement shall constitute the documentation needed for the Employer to implement the request.

The Employer may not require a written statement more than once in a calendar year from any Covered Employee for this purpose.

13.110.060 Notice, Right to Decline, and Compensation for Schedule Changes. (a) A covered employer shall provide an employee notice of any change to the employee’s posted or transmitted work schedule. The covered employer shall provide such notice by in-person conversation, telephone call, email, text message, or other electronic communication. If the Employee accepts the additional shift via a verbal conversation, the Employer shall immediately follow up with written confirmation to document the agreement and when it was accepted. This notice requirement shall not

apply to any schedule changes the employee initiates, such as employee requested sick leave, time off, shift trades, or additional shifts. (b) Subject to the exceptions in subsection (d) of this section, an employee has the right to decline any previously unscheduled hours that the covered employer adds to the employee’s schedule, and for which the employee has been provided advance notice of less than fourteen (14) days.
(c) Subject to the exceptions in subsection (d) of this section, a covered employer shall provide an employee with the following compensation per shift for each previously scheduled shift that the covered employer adds or subtracts hours, moves to another date or time, cancels, or each previously unscheduled shift that the covered employer adds to the employee’s schedule: (1) with less than fourteen (14) days’ notice, but twenty-four (24) hours or more notice to the employee: one (1) hour of predictability pay; (2) with less than twenty-four (24) hours to the employee, (i) four (4) hours or the number of hours in the employee’s scheduled shift, whichever is less, when hours are canceled or reduced; (ii) one (1) hour of predictability pay for all other changes. The compensation required by this subsection shall be in addition to the employee’s regular pay for working that shift.
(d) Exceptions. The requirements of this section shall not apply under any of the following circumstances:
(1) Operations cannot begin or continue due to threats to covered employers, employees or property, or when civil authorities recommend that work not begin or continue;
(2) Operations cannot begin or continue because public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities or sewer system;
(3) Operations cannot begin or continue due to: acts of nature (including but not limited to flood, fire, explosion, earthquake, tidal wave, drought), war, civil unrest, strikes, or other cause not within the covered employer’s control; (4) Mutually agreed-upon work shift swaps or coverage arrangements among employees.
(5) Employee initiated voluntary shift modifications, such as voluntary requests to leave a scheduled shift prior to the end of the shift or to use sick leave, vacation leave, or other policies offered by the Employer. This paragraph shall apply only to the employee initiating the voluntary shift modification. (6) To accommodate the following transitions in shifts:
(i) If an employee works past the end of a scheduled shift to complete service to a customer, which service would entitle the employee to receive a commission, tip, or other incentive pay based on the completion of that service, provided the employee is compensated at their regular rate of pay for the additional work performed by the employee.

(ii) An employee begins or ends their scheduled shift no more than ten minutes prior to or after the scheduled shift, provided the employee is compensated at their regular rate of pay for the additional work performed by the employee.
(7) When, in manufacturing, events outside of the control of the manufacturer result in a reduction in the need for Covered Employees, including, but not limited to, when a customer requests the manufacturer to delay production or there is a delay in the receipt of raw materials or component parts needed for production. (8) With regard to healthcare employers, in (i) any declared national, State, or municipal disaster or other catastrophic event, or any implementation of an Employer's disaster plan, or incident causing a hospital to activate its Emergency Operations Plan, that will substantially affect or increase the need for healthcare services; (ii) any circumstance in which patient care needs require specialized skills through the completion of a procedure; or (iii) any unexpected substantial increase in demand for healthcare due to large public events, severe weather, violence, or other circumstances beyond the Employer's control. (e) Nothing in this section shall be construed to prohibit a covered employer from providing greater advance notice of employee’s work schedules and/or changes in schedules than that required by this section.

13.110.070 Offer of Work to Existing Employees.
(a) Subject to the limitations herein, before hiring new employees or contract employees, including hiring through the use of temporary services or staffing agencies, a covered employer shall first offer additional hours of work to existing part-time employee(s) who have worked on behalf of the employer for more than two weeks, and if the part-time employee(s) are qualified to do the additional work, as reasonably and in good faith determined by the covered employer. This section requires covered employers to offer to part-time employees only up to the number of hours required to schedule a part-time employee forty (40) hours of work in a calendar week. In order to facilitate communication with current employees who may be interested in additional work, an Employer may specify how employees may in advance communicate their interest of additional work and which positions and hours of work employees would be interested in covering.
(b) A covered employer has discretion to divide the additional work hours among part- time employees consistent with this section; provided, that: (1) the employer’s system for distribution of hours must not discriminate on the basis of race, color, creed, religion, ancestry, national origin, sex, sexual orientation, gender identity or expression, disability, age, marital or familial status, nor on the basis of family caregiving responsibilities or status as a student; and (2) the employer may not distribute hours in a manner intended to avoid an increase in the number of employees working 30 or

more hours per week, or with regard to the City of Berkeley, to avoid a the granting of any benefits that an employee earns based on hours worked. (c) A part-time employee may, but is not required to, accept the covered employer’s offer of additional work under this section.
(1) A part-time employee shall have twenty-four (24) hours to accept an offer of additional hours of work under this section, after which time the covered employer may hire new employees to work the additional hours. (2) The twenty-four (24) hour period referred to in this subsection begins either when the employee receives the written offer of additional hours, or when the covered employer posts the offer of additional hours as described in subsection (d) of this section, whichever is sooner. A part-time employee who wishes to accept the additional hours must do so in writing.
(d) When this section requires a covered employer to offer additional hours to existing part-time employees, the covered employer shall make the offer either in writing or by posting the offer in a conspicuous location in the workplace where notices to employees are customarily posted. Covered employers may post the notice electronically on an internal website in a conspicuous location and which website is readily accessible to all employees. The notice shall include the total hours of work being offered, the schedule of available shifts, whether those shifts will occur at the same time each week, and the length of time the covered employer anticipates requiring coverage of the additional hours, and the process by which part-time employees may notify the covered employer of their desire to work the offered hours.
(e) The covered employer shall retain each written offer no less than three (3) years as required under Section 13.110.140.
(f) This section shall not be construed to require any covered employer to offer employees work hours paid at a premium rate under California Labor Code Section 510 nor to prohibit any covered employer from offering such work hours.

13.110.080 Right to Rest.
(a) An employee has the right to decline work hours that occur:
(1) Less than eleven (11) hours after the end of the previous day’s shift; or (2) During the eleven (11) hours following the end of a shift that spanned two (2) days.
(b) An employee who agrees in writing to work hours described in this section shall be compensated at one and one-half (1-1/2) times the employee’s regular rate of pay for any hours worked less than eleven (11) hours following the end of a previous shift.

13.110.090 Right to Request a Flexible Working Arrangement.

An employee has the right to request a modified work schedule, including but not limited to additional shifts or hours; changes in days of work or start and/or end times for the

shift; permission to exchange shifts with other employees; limitations on availability; part-time employment; job sharing arrangements; reduction or change in work duties; or part-year employment. A covered employer shall not retaliate against an employee for exercising their rights under this section or the rights outlined in the Berkeley Family Friendly and Environment Friendly Workplace Ordinance, Berkeley Municipal Code Chapter 13.101.

13.110.100 Notice and Posting.
(a) The Department shall publish and make available to covered employers, in English and other languages as provided in any implementing regulations, a notice suitable for posting by covered employers in the workplace informing employees of their rights under this chapter.
(b) Each covered employer shall give written notification to each current employee and to each new employee at time of hire of their rights under this chapter. The notification shall be in English and other languages as provided in any implementing regulations, and shall also be posted prominently in areas at the work site where it will be seen by all employees. Every covered employer shall also provide each employee at the time of hire with the covered employer’s name, address, and telephone number in writing. Failure to post such notice shall render the covered employer subject to administrative citation, pursuant to the provisions of this chapter. The Department is authorized to prepare sample notices and covered employer use of such notices shall constitute compliance with this subsection.

13.110.110 Implementation.
(a) The Department shall be authorized to coordinate implementation and enforcement of this chapter and may promulgate appropriate guidelines or rules for such purposes. Any guidelines or rules promulgated by the City shall have the force and effect of law and may be relied on by covered employers, employees and other parties to determine their rights and responsibilities under this chapter. Any guidelines or rules may establish procedures for ensuring fair, efficient and cost-effective implementation of this chapter, including supplementary procedures for helping to inform employees of their rights under this chapter, for monitoring covered employer compliance with this chapter, and for providing administrative hearings to determine whether a covered employer has violated the requirements of this chapter. (b) Reporting Violations. An aggrieved employee may report to the Department in writing any suspected violation of this chapter. The Department shall keep confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee reporting the violation; provided, however, that with the authorization of such employee, the Department may disclose their name and identifying information as necessary to enforce this chapter or other employee protection laws.

(c) Investigation. The Department may investigate any possible violations of this chapter by a covered employer. The Department shall have the authority to inspect workplaces, interview persons and subpoena records or other items relevant to the enforcement of this chapter.
(d) Informal Resolution. If the Department elects to investigate a complaint, the City shall make every effort to resolve complaints informally and in a timely manner. The City’s investigation and pursuit of informal resolution does not limit or act as a prerequisite for an employee’s right to bring a private action against a covered employer as provided in this chapter.

13.110.120 Enforcement.
(a) Enforcement by City. Where prompt compliance with the provisions of this chapter is not forthcoming, the Department may take any appropriate enforcement action to ensure compliance, including but not limited to the following:

The Department may issue an administrative citation pursuant to Chapter 1.28 of the Berkeley Municipal Code. The amount of this fine shall vary based on the provision of this chapter violated, as specified below:
(1) A fine may be assessed for retaliation by a covered employer against an employee for exercising rights protected under this chapter. The fine shall be one thousand dollars ($1,000.00) for each employee retaliated against. (2) A fine of five hundred dollars ($500.00) may be assessed for any of the following violations of this chapter:
(i) Failure to provide notice of employees’ rights under this chapter. (ii) Failure to timely provide an initial work schedule or to timely update work schedules following changes.
(iii) Failure to provide predictability pay for schedule changes with less than twenty-four (24) hours’ advance notice.
(iv) Failure to offer work to existing employees before hiring new employees or temporary staff or to award work to a qualified employee. (v) Failure to maintain payroll records for the minimum period of time as provided in this chapter.
(vi) Failure to allow the Department access to payroll records. (3) A fine equal to the total amount of appropriate remedies, pursuant to subsection (c) of this section. Any and all money collected in this way that is the rightful property of an employee, such as back wages, interest, and civil penalty payments, shall be disbursed by the Department in a prompt manner. (f) City Access. Each covered employer shall permit access to work sites and relevant records for authorized City representatives for the purpose of monitoring compliance with this chapter and investigating employee complaints of noncompliance,

including production for inspection and copying of its employment records, but without allowing Social Security numbers to become a matter of public record. (g) Any person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of the public as provided for under applicable state law, may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Chapter and, upon prevailing, shall be awarded reasonable attorneys’ fees and costs and shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any back wages unlawfully withheld, the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day that the violation occurred or continued, reinstatement in employment and/or injunctive relief. Provided, however, that any person or entity enforcing this Chapter on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief to Employees, and reasonable attorneys’ fees and costs.
(i) This Section shall not be construed to limit an Employee’s right to bring legal action for a violation of any other laws concerning wages, hours, or other standards or rights nor shall exhaustion of remedies under this Chapter be a prerequisite to the assertion of any right.
(j) The remedies for violation of this chapter include but are not limited to:

1. Reinstatement, the payment of predictability pay unlawfully withheld, and the payment of an additional sum as a civil penalty in the amount of fifty dollars ($50.00) to each employee whose rights under this chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this chapter or State law.

2. Interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date the wages are paid in full.

3. Reimbursement of the City’s administrative costs of enforcement and reasonable attorney’s fees.

4. If a repeated violation of this chapter has been finally determined in a period from July 1 to June 30 of the following year, the Department may require the employer to pay an additional sum as a civil penalty in the amount of fifty dollars ($50.00) to the City for each employee or person whose rights under this chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this Code or State law.

(k) The remedies, penalties and procedures provided under this chapter are cumulative and are not intended to be exclusive of any other available remedies, penalties and procedures established by law which may be pursued to address violations of this chapter. Actions taken pursuant to this chapter shall not prejudice or adversely affect any other action, administrative or judicial, that may be brought to abate a violation or to seek compensation for damages suffered.
(l) No criminal penalties shall attach for any violation of this chapter, nor shall this chapter give rise to any cause of action for damages against the City.

13.110.130 Retaliation Prohibited.

An employer shall not discharge, reduce the compensation of, discriminate against, or take any adverse employment action against an employee, including discipline, suspension, transfer or assignment to a lesser position in terms of job classification, job security, or other condition of employment, reduction of hours or denial of additional hours, informing another employer that the person has engaged in activities protected by this chapter, or reporting or threatening to report the actual or suspected citizenship or immigration status of an employee, former employee or family member of an employee to a Federal, State or local agency, for making a complaint to the Department, participating in any of the Department’s proceedings, using any civil remedies to enforce their rights, or otherwise asserting their rights under this chapter.

Within one hundred twenty (120) days of an employer being notified of such activity, it shall be unlawful for the employer to discharge any employee who engaged in such activity unless the employer has clear and convincing evidence of just cause for such discharge.

13.110.140 Retention of Records.

Each employer shall maintain for at least three (3) years for each employee a record of their name, hours worked, pay rate, initial posted schedule and all subsequent changes to that schedule, consent to work hours where such consent is required by this chapter, and documentation of the time and method of offering additional hours of work to existing staff. Each employer shall provide each employee a copy of the records relating to such employee upon the employee’s reasonable request.

13.110.150 City Access.

Each employer shall permit access to work sites and relevant records for authorized Department representatives for the purpose of monitoring compliance with this chapter and investigating employee complaints of noncompliance, including production for inspection and copying of its employment records, but without allowing Social Security numbers to become a matter of public record.

13.110.160 No Preemption of Higher Standards.

The purpose of this chapter is to ensure minimum labor standards. This chapter does not preempt or prevent the establishment of superior employment standards (including higher wages) or the expansion of coverage by ordinance, resolution, contract, or any other action of the City. This chapter shall not be construed to limit a discharged employee’s right to bring a common law cause of action for wrongful termination.

13.110.170 Severability.

If any part or provision of this Chapter, or the application of this Chapter to any person or circumstance, is held invalid, the remainder of this Chapter, including the application of such part or provision to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this Chapter are severable.

Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

ACTION CALENDAR
April 12, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Lisa Warhuus, Director, Health, Housing, and Community Services Subject: Companion Report: Fair Workweek Ordinance; Adding Berkeley Municipal Code Chapter 13.110

RECOMMENDATION
Direct this item to the Health, Life Enrichment, Equity, and Community Policy Committee for the following:
 Review and evaluate the proposed policy; and
 Evaluate resources needed to conduct the necessary analysis of impacts and costs associated with implementing the proposed policy.

FISCAL IMPACTS OF RECOMMENDATION
The costs of implementing the proposed Fair Workweek policy are currently unknown but are expected to be significant. If implemented correctly, and with an equitable approach, this important policy is expected to positively impact many low-income workers in Berkeley. The City currently does not have a full understanding of the impacted businesses, employees, and how to implement this policy for the unique needs of the Berkeley community.

A comprehensive impact analysis of this proposed policy is required to fully determine the upfront and future costs and ongoing staffing needs associated with effectively administering and enforcing the ordinance. Impacted City departments will include Health, Housing, and Community Services, Finance, Neighborhood Services, the City Attorney’s Office, and the Office of Economic Development. Resources are also needed to conduct a comprehensive impact analysis.

The cost of ongoing implementation and administration of a Fair Workweek policy depends on many factors including, but not limited to:
 The final determination and consideration for which industry sectors shall be covered;
 The size of employers (based on the number of global and local employees);

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Fair Workweek ACTION CALENDAR
April 12, 2022
 The total number of employers covered by the policy;
 The success of proactive efforts to educate affected employers; and  A clear expectation of the level of technical assistance provided by City staff to employers and employees covered under the policy.

These factors will inform the breadth of the policy’s impact on City employers (how many total employers will be covered) and are necessary to determine how much staff time will be needed to effectively setup and administer the program.

Neighboring jurisdictions that have passed similar policies, including San Francisco and Emeryville, have dedicated additional funds for outreach and education to impacted employers. For the policy to be successful, these proactive efforts are essential in that they aim to reduce the number of enforcement complaints by proactively working with affected employers to build business practices that conform to the noticing and documentation standards required by the ordinance.

Further, significant staff time will be required to accurately identify which employers would be covered by this policy. This is anticipated to be a time-intensive process due to the complexity of screening local employers against the applicable criteria used to determine employer eligibility. It is also expected that the Finance Department would need to make substantial changes to the business license application to help properly identify businesses subject to the regulations; including information about an employer’s status as a franchise, their total employee counts worldwide, and employee counts within Berkeley.

CURRENT SITUATION AND ITS EFFECTS
Adding a Fair Workweek policy to Berkeley’s labor standards is an important consideration for the community. This policy has been contemplated for many years by Council, the Commission on Labor, and the City’s labor standards staff. Many thoughtful hours of work have already gone into drafting the proposed ordinance. Experts on the commission took public comment multiple times and discussed at length the potential impacts to local employers, given the ongoing financial, staffing, and operational struggles some businesses have faced throughout the pandemic. With that in mind, the commission moved this policy forward in consideration of the urgent need for equitable and fair treatment of Berkeley workers, and in support of the essential service workers who have gotten us through the pandemic, many of whom are lower-income and persons of color.

City staff have a similar approach. If adopted, the City first needs to better understand the probable impacts to the business community, employees, and City staff. This includes understanding what is really needed in order to effectively and equitably implement an important and wide-reaching policy such as this. The current economic circumstances also warrant especially careful analysis of the impacts to local employers

Fair Workweek ACTION CALENDAR
April 12, 2022
as they continue to face ongoing challenges related to the pandemic, including compounding supply chain and inflation issues.

Additionally, adding this policy to the current labor standards and enforcement portfolio will require additional staff resources for initial outreach and education as well as ongoing administration and enforcement. However, even prior that, in order to fully understand the staffing needs and cost associated with administering and enforcing this policy, a comprehensive impact analysis of this proposed policy is required to fully determine the upfront and future costs and ongoing staffing needs associated with effectively administering and enforcing the ordinance. This approach aims to ensure the policy is implemented in the best way for Berkeley, its businesses, and local low-income workers.

The current portfolio of local labor standards and enforcement policies in Berkeley includes: 1) The Minimum Wage Ordinance, 2) The Living Wage Ordinance, 3) The Berkeley Paid Sick Leave Ordinance, and 4) The Berkeley Family Friendly and Environment Friendly Workplace Ordinance. The work to administer these policies, including providing general information as well as conducting formal investigations and enforcement of the policies is considerable. Adding the Fair Workweek Policy to this portfolio significantly expands this body of work and should be considered alongside a cost analysis.

It should be noted that Berkeley Municipal Code Chapter 13.110 is currently dedicated to the COVID-19 Emergency Response Ordinance. If the Fair Workweek Ordinance is to proceed to a first reading, it would need a different Chapter number in Title 13. If adopted as-is, the Fair Workweek Ordinance would supersede the existing Chapter

13.110 and replace the existing language regarding COVID-19 Response.

BACKGROUND
In 2018, the City Council referred this item to the Commission on Labor and directed them to “draft an Ordinance to establish regulations governing the scheduling and hiring practices of qualifying businesses in Berkeley…” The referral included a copy of the Emeryville Fair Workweek Ordinance as a template for consideration.

The Commission appointed a subcommittee to work on the draft ordinance and held several public meetings which were attended by dozens of participants from the public, representing both workers and employers with interest in the policy. The Subcommittee ultimately presented a draft policy that took elements from both the City of Emeryville Fair Workweek Ordinance and the Fair Workweek Ordinance from the City of Chicago that covered more business industries than the Emeryville Ordinance does.

At the November 17, 2021 Commission on Labor Meeting, The Commission approved a motion to recommend the draft policy to the City Council with the motion and vote below:

Fair Workweek ACTION CALENDAR
April 12, 2022
Recommend approval of draft Fair Workweek Ordinance to the Berkeley City Council.
(M/S/C: Scantlebury/Katz. Yes: Botello, Harlow, Osborne, Jones. Noes: Schriner, Berne. Abstentions: None. Absent: Medak).

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
None.

RATIONALE FOR RECOMMENDATION
Staff is recommending that the Council direct the draft Fair Workweek Ordinance to the Health, Life Enrichment, Equity, and Community Policy Committee to evaluate the Commission’s recommendations and also evaluate the availability of existing resources to conduct a more thorough analysis of the policy’s impacts.

ALTERNATIVE ACTIONS CONSIDERED
The Council could adopt the ordinance now as written, but without an evaluation of the resources needed to enforce the ordinance and commitment of those resources, the ordinance is unlikely to achieve the desired impact. Outreach, education and consistent responses will be key to achieving the goal of a fair workweek for Berkeley workers.

CONTACT PERSON
Margot Ernst, Manager of Housing and Community Services, HHCS, (510) 981-7410

Disaster and Fire Safety Commission
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

ACTION CALENDAR
April 12, 2022
To: Honorable Mayor and Members of the City Council
From: Disaster and Fire Safety Commission
Submitted by: Jose Bedolla, Chairperson, Disaster and Fire Safety Commission Subject: UC Berkeley Agreement

RECOMMENDATION
The University of California recently agreed to pay the City of Berkeley $4.3 million1 a year to cover cost expended by the City due to the University’s expansion and cost on the City. The funding is intended to ‘support fire and city services.’ The DSFC recommends that the City administer the funds separately from the general funds and with public review under the DSFC similar to FF and GG for the duration of the agreement.

FISCAL IMPACTS OF RECOMMENDATION
There are no fiscal impacts to the recommendation since this is new money above and beyond the current budget allocation.

CURRENT SITUATION AND ITS EFFECTS
The University of California at Berkeley (Cal) is expected to increase its enrollment by as much as 33%. Even without the increase, the number of calls are driven in part by the college population without a defined revenue source for recovery. Any increase in student population will pull resources away from efforts funded by GG and FF such as inspections, vegetation management, and fire preparedness. To compensate the City for the increased impact, the University agreed to a $4.3 million annually in compensation for 10 years. Under that agreement, the Fire Department is expected to get a boost of $2.8 M. These funds are needed to increase personnel to service the expanding population. The spending should come under specific public review via the DSFC.

At the September 22, 2021 regular meeting, the Disaster and Fire Safety Commission voted on a motion to recommend that the City administer the funds separately from the general funds and with public review under the DSFC similar to FF and GG for the duration of the agreement.
1 https://www.berkeleyside.org/2021/07/14/uc-berkeley-payment-settlement-agreement

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UC Berkeley Agreement ACTION CALENDER April 12, 2022
M/S: Dean/Bradstreet
Votes: 7 Ayes: Rader, Dean, Degenkolb, Cutler, Simmons, Bedolla, Bradstreet; 0 Noes; 1 Absent: Stein; 0 Abstain.

BACKGROUND
The DFSC oversees GG and FF in collaboration with the Fire Department and City Administration. The DSFC has requested the Fire Department provide budget statements that are publically reviewed on the following basis:

1. Quarterly: official document

2. Monthly: unofficial document status report

3. Annual: Formal annual report
In addition, each of these documents will track performance measures against targets and budget. The public is able to comment at a more minute level rather than a citywide level where some of the detail maybe lost.

ENVIRONMENTAL SUSTAINABILITY
There is no environmental impact to this recommendation.

RATIONALE FOR RECOMMENDATION
The DFSC would like to ensure that the new funding does in fact go to the intended activity instead of general use.

ALTERNATIVE ACTIONS CONSIDERED
An alternative could be a line item in the general fund. This could serve a similar function. However, the public would not be able to comment as much or as freely given the size of the general budget and the volume of City business before it.

CITY MANAGER
See companion report.

CONTACT PERSON
Keith May, Secretary, Disaster and Fire Safety Commission, 510-981-5508

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

ACTION CALENDAR
April 12, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Abe Roman, Fire Chief
Subject: Companion Report: UC Berkeley Agreement

RECOMMENDATION
Use the General Fund and existing budget process to administer payments received through the University of California settlement.

FISCAL IMPACTS OF RECOMMENDATION
From 2021 through 2036, allocate $4.1 million, with 3% annual increases, to the General Fund.

CURRENT SITUATION AND ITS EFFECTS
The Regents of the University of California have agreed to make an annual payment to the City of $4.1 million, with 3% annual increases, from 2021 through 2036. The Agreement provides a funding mechanism only and the City has discretion over how to apply the funds to meet the City’s needs. The City is not required to spend the entire Annual Payment every year, and may accumulate funds from year to year.

Under the Agreement, the Fire Department is expected to receive $2.8 million annually.

These funds will be used for Fire Department staffing and equipment in order to maintain and augment services provided to the Berkeley community, which includes the UC Berkeley campus.

Budget authority for these funds rests with the City Manager, under the direction of the City Council. Funds from this agreement will be administered through the existing budget process. Fire Department expenditures are addressed in public forums, which encourages public review and comment, at:
 The Budget and Finance Committee, Fire Department Budget Presentation  City Council Meeting, Public Hearings regarding the Annual Budget

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
None.

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Companion Report: UC Berkeley Agreement ACTION CALENDAR April 12, 2022

RATIONALE FOR RECOMMENDATION
The Disaster and Fire Safety Commission provides oversight over funding allocated to the Fire Department through voter-approved tax measures (GG, FF). The Agreement between the Regents of the University of California and the City of Berkeley is not a tax measure voted on by the community, and can be effectively and transparently managed through the existing budget process.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSON
Keith May, Assistant Fire Chief, Disaster and Fire Safety Commission Secretary, Fire Department, 510-981-5508

Communications

All communications submitted to the City Council are
public record. Communications are not published directly to the City’s website. Copies of individual communications are available for viewing at the City Clerk Department and through Records Online.

City Clerk Department
2180 Milvia Street
Berkeley, CA 94704
(510) 981-6900

Records Online
http://www.cityofberkeley.info/recordsonline

To search for communications associated with a particular City Council meeting using Records Online:

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