APPROVED AS TO FORM AND LEGALITY
________________________
CITY ATTORNEY’S OFFICE
OAKLAND CITY COUNCIL
RESOLUTION NO. ______________ C.M.S.
RESOLUTION AUTHORIZING THE CITY ADMINISTRATOR TO
EXECUTE AGREEMENTS EXTENDING THE TWO EXISTING
SETTLEMENT AGREEMENTS BETWEEN THE CITY, THE OAKLAND
POLICE AND FIRE RETIREMENT SYSTEM AND THE RETIRED
OAKLAND POLICE OFFICERS ’ ASSOCIATION THAT (1)
INCORPORATE THE CALCULATION OF HOURS FOR THE
JUNETEENTH HOLIDAY AND (2 ) EXTEND THE TERM OF THE
SETTLEMENT AGREEMENTS TO JUNE 30, 2026 TO ALIGN WITH THE
TERMS OF THE CURRENT MEMORANDA OF UNDERSTANDING
BETWEEN THE CITY AND THE OAKLAND POLICE OFFICERS
ASSOCIATION (OPOA) AND OAKLAND POLICE MANAGEMENT
ASSOCIATION (OPMA)
WHEREAS, pursuant to Article XXVI of the Oakl and City Charter, retirees of the Oakland Police Department who are members of the Oakland Police and Fire Retirement System (PFRS) are entitled to receive a retirement allowance that is ba sed on “compensation attached to the average rank held” during the three years immediately preceding retirement; and
WHEREAS, “compensation attached to […] rank” includes, among other compensation, holiday pay; and
WHEREAS, on November 8, 2016, the Retired Oa kland Police Officers’ Association (ROPOA) filed a lawsuit entitled Retired Oakland Police Officers Association, et al. v.
Oakland Police and Fire Reti rement System, et al. , Alameda County Superior Court Case No. RG16838274, against PFRS, the PFRS Board and the City of Oakland alleging that PFRS had been miscalculating the holiday pay retire ment benefit received by PFRS retirees and beneficiaries of retirees who held the rank of police officer, sergeant, inspector or lieutenant; and
WHEREAS, on or about May 7, 2019, the Council authorized settlement of the lawsuit, which resulted in a settlement agre ement with the ROPOA with respect to PFRS retirees who held the rank of pol ice officer, sergeant, inspector or lieutenant during the 36- month period preceding retirement (Resolution No. 87666 C.M.S.); and
WHEREAS, on May 21, 2019, counsel fo r the ROPOA issued a letter to the PFRS Board challenging the new calculation method and reduction in holiday pay being credited to 2 police retirees and beneficiaries of police retirees who held ranks of captain or deputy chief and invited PFRS and the City to attempt to resolve the dispute in lieu of litigation; and
WHEREAS, on or about December 10, 2019, the Council author ized settlement under threat of litigation with the ROPOA on behalf of PFRS retirees who he ld rank of captain or deputy chief during the 36-month period preceding retirement. (Reso. 87972 C.M.S.); and
WHEREAS, both settlement agreements are currently set to expire June 30, 2024; and
WHEREAS, in July 2022, the City agreed to extend the term of the Memoranda of Understanding (MOUs) for the Oakland Police Officers’ Association and the Oakland Police Management Association by two years to June 30, 2026 and, among other things, add Juneteenth as a paid holiday; and
WHEREAS, the ROPOA seeks to extend the existing settlement agreements by two years to June 30, 2026, to align with the expiration of the MOUs for the OPOA and OPMA and to incorporate the Juneteenth holiday pay hours into their holiday pay calculations for police retirees and beneficiaries of police retirees who held the rank of 1) police officer, sergeant, inspector or lieutenant a n d 2 ) captain or deputy chief pursuant to the terms set forth in the Extension to Settlement Agreements attached hereto as Attachment A; and
WHEREAS, on April 18, 2024, the Council authoriz ed extension of the settlement agreements on these terms in Closed Session; and
WHEREAS, on April 24, 2024, the PFRS Board authorized extension of the settlement agreements on these terms in Closed Session; now, therefore, be it
RESOLVED: That the City Attorney is authorized and directed to draft settlement agreements between the City and the ROPOA and PFRS that extend those agreements by two years to June 30, 2026 and to incorporate the Juneteenth holiday in the holiday pay calculations for police retirees and beneficiaries of police retirees who held the rank of 1) police officer, sergeant, inspector or lieutenant a n d 2 ) captai n or deputy chief, during the 36-month period preceding retirement, pursuant to the terms set fo rth in the Extension to Settlement Agreements attached hereto as Attachment A; and be it
FURTHER RESOLVED: That the City Administrator is authorized to execute the aforesaid settlement agreements once the City Attorney approves them as to form and legality; and be it
3 FURTHER RESOLVED: That the City Attorney and City Administrator are authorized and directed to take whatever steps as may be necessary to effect said settlement.
IN COUNCIL, OAKLAND, CALIFORNIA,
PASSED BY THE FOLLOWING VOTE:
AYES - FIFE, GALLO, JENKINS, KALB, KAPLAN, RAMACHANDRAN, REID, AND
PRESIDENT FORTUNATO BAS
NOES –
ABSENT –
ABSTENTION –
ATTEST:
ASHA REED
City Clerk and Clerk of the Council of the
City of Oakland, California
3356310v2/SW
ATTACHMENT A
EXTENSION TO SETTLEMENT AGREEMENTS
This Agreement is entered into by and between the Oakland Police & Fire Retirement System and Oakland Police & Fire Retirement System Board (collectively, “PFRS”), the City of Oakland (“City”) and the Retired Oakland Police Officers Association (“ROPOA”) as of the latest date indicated on the signature blocks below, effective through June 30, 2026.
WHEREAS, the City, PFRS, and ROPOA entered into a Settlement Agreement regarding the calculation of Holiday Pay for PFRS Retirees Holding the Rank of Captain & Deputy Chief on or about January 29, 2020 (“Captain & DC Settlement Agreement”) (Exhibit 1 hereto), and entered into a Settlement Agreement regarding the calculation of Holiday Pay for PFRS Retirees Holding the Rank of Police Officer, Sergeant, Inspector, and Lieutenant on or about May 22, 2019 (“Rank & File Settlement Agreement”) (Exhibit 2 hereto) (Exhibit 1 and 2 are the “Settlement Agreements”); WHEREAS, the Captain & DC Settlement Agreement provided for 104 hours of holiday pay per year through June 30, 2024;
WHEREAS, the Rank & File Settlement Agreement provided for 144 hours of holiday pay per year through June 30, 2024 (the equivalent of 12 holidays at 12 hours per day);
WHEREAS, the Memorandum of Understanding between the City of Oakland and the Oakland Police Officers Association and Oakland Police Management Association was extended through June 30, 2026 (“MOU”), effective July 1, 2022 (Exhibit 3 hereto), and the new MOU confirmed the existing holidays for police officers, reinstating Admission’s Day and removing Lincoln’s Day, and adding Juneteenth as an additional paid holiday;
WHEREAS, the Parties wish to extend the Settlement Agreements in light of the MOU extension effective July 1, 2022, through June 30, 2026 and to expressly incorporate the Juneteenth holiday and exclude the floating holiday in holiday pay calculations, for the benefit of all Parties providing certainty and resolution of the issues set forth in the Settlement Agreements without litigation;
THEREFORE, the Parties agree as follows:
The Rank & File Settlement Agreement is incorporated by reference as if set forth at length herein, except that the following changes shall apply:
For the purpose of calculating retirement allowances and benefits for PFRS members who are retirees and beneficiaries of retirees who held the rank of Police Officer, Sergeant, Inspector, and Lieutenant, PFRS shall credit Covered Retirees and Beneficiaries with 156 hours of holiday pay per year (13 hours per month with Juneteenth included) beginning July 1, 2022, through June 30, 2026.
The Captain & DC Settlement Agreement is incorporated by reference as if set forth at length herein, except that the following changes shall apply:
For the purpose of calculating retirement allowances and benefits for PFRS members who are retirees and beneficiaries of retirees who held the rank of Captain and Deputy Chief, PFRS shall credit Covered Retirees and Beneficiaries with 104 hours of holiday pay per year (8.67 hours per month, with Juneteenth included and the floating holiday excluded) beginning July 1, 2022, through June 30, 2026.
All other terms remain the same.
IT IS SO AGREED.
FOR THE RETIRED OAKLAND POLICE OFFICERS ASSOCIATION:
Dated:_____________________ By:_______________________________ Kevin Traylor
FOR THE OAKLAND POLICE AND FIRE RETIREMENT SYSTEM AND
PFR OAKLAND POLICE AND FIRE RETIREMENT SYSTEM BOARD:
Dated:_____________________ By:_______________________________ Walter Johnson, Board President
FOR THE CITY OF OAKLAND:
Dated:_____________________ By:_______________________________ Jestin Johnson, City Administrator
APPROVED AS TO FORM:
_____________________
Sarah Grossman-Swenson
McCracken, Stemerman & Holsberry LLP
Counsel for the Retired Oakland Police Officers’ Association
____________________
Angela Cabral
Sloan Sakai Yeung & Wong LLP
Counsel for the Police & Fire Retirement System
____________________
Barbara J. Parker
City Attorney
Office of the City Attorney for the City of Oakland
EXHIBIT 1
EXHIBIT 2
FiffibOFF,Ct°OAT”u<Nl>' CU
CITY OF OAKLAND
JUS APR 25 PH »it I
ONE FRANK H. OGAWA PLAZA • 6th FLOOR • OAKLAND, CALIFORNIA 946 1 2 Office of the City Attorney
Barbara Parker
City Attorney
(510) 238-3601
(510) 238-6500
(510) 839-6451FAXt
TDD:
May 7, 2019
HONORABLE CITY COUNCIL
Oakland, California
Subject: Retired Oakland Police Officers Association et. al. v. Oakland Police and Fire Retirement System, et. al.
Case No. RG16838274
City Attorney File No. X04324
President Kaplan and Members of the City Council:
Pursuant to Section 401 of the Charter, the City Attorney has prepared and requests your approval of a resolution authorizing compromise and settlement of the above-entitled action pursuant to the terms set forth in the Settlement Agreement attached hereto as Exhibit A.
This action arises out of a claim that Police and Fire Retirement System has been miscalculating holiday pay retirement benefits for its members who held the rank of police officer, sergeant, inspector or lieutenant for some or all of the 36-month period immediately preceding their retirement.
The Council authorized settlement of this case pursuant to the terms set forth in the Settlement Agreement attached hereto as Exhibit A in Closed Session on Tuesday January 22, 2019 (moved by Vice Mayor Larry Reid and seconded by Councilmember Noel Gallo - 8 Ayes, 0 Noes).
Respectfully submitted
PARKER
City Attorney
Assigned Attorney:
Maria Bee, Assistant City Attorney
Jennifer Logue, Supervising City Attorney
Adam Hoffman, Outside Counsel
2741075
EXHIBIT A
Settlement Agreement
In consideration of the mutual agreements and promises set forth below, the Parties to this Settlement Agreement (“Agreement”) hereby agree as follows:
Purpose and Scope of Agreement
This Agreement is entered into as of March_, 2019, by and among the following I.
Parties:
Plaintiffs and Petitioners: Retired Oakland Police Officers Association; Robert Aven; Nita Balousek; Ronald Gunar; Raymond Miller; Ned Ubben (“Plaintiffs”); Defendants and Respondents: City of Oakland; Oakland Police and Fire Retirement System (“PFRS”); Oakland Police and Fire Retirement System Board (“Defendants”).
The Parties are entering into this Agreement to compromise, resolve and settle Plaintiffs’ claims in the action entitled Retired Oakland Police Officers Association et al. v. Oakland Police and Fire Retirement System et al., Alameda Superior Court Case No. RG16838274 (“Lawsuit”).
For purposes of calculating compensation attached to the average rank held under Article XXVI of the Oakland City Charter, PFRS currently credits members who are retirees and beneficiaries of retirees who held the rank of police officer, sergeant, inspector or lieutenant for some or all of the 36-month period immediately preceding their retirement (“Covered Retirees and Beneficiaries”) with 144 hours per annum for holiday pay in calculating their retirement allowance or benefit. Plaintiffs claim that Covered Retirees and Beneficiaries are entitled to be credited with a higher number of hours for holiday pay, including “floating holiday” pay.
Defendants dispute Plaintiffs’ claims. The purpose of this Agreement is to settle this dispute for the period covered by the Lawsuit through June 30, 2024, when the 2019-2024 Memorandum of Understanding between the City of Oakland and the Oakland Police Officers Association (“the new MOU”) is scheduled to expire. This is a resolution of disputed claims and is not an admission of liability by any Party or the absence of liability on the part of any other Party, nor does it constitute an admission that averages may be used to determine compensation attached to the rank.
This Agreement does not settle or resolve any claims of members who are retirees or beneficiaries of retirees who held the ranks of captain and deputy chief of police at retirement, provided however, this Agreement does apply to the portion, if any, of the 36-month period immediately preceding retirement that such retirees held the rank of police officer, sergeant, inspector or lieutenant. The Parties specifically reserve for separate resolution the calculation of holiday pay benefits for retirees and beneficiaries of retirees who held the rank of captain or deputy chief.
This Agreement does not bar claims by any individual retiree or beneficiary not named herein. Pursuant to the terms of this Agreement, for purposes of calculating retirement allowances and benefits PFRS will credit Covered Retirees and Beneficiaries with 144 hours per annum for holiday pay, provided however, Defendants expressly reserve all rights, claims and 1 EXHIBIT A
defenses with respect to any non-party retiree or beneficiary who hereafter asserts a claim demanding to be credited with a different number of holiday pay hours for any of the period covered by this Agreement.
II. Settlement
A. Credit for Holiday Pay for Covered Retirees and Beneficiaries.
For the purpose of calculating retirement allowances and benefits for PFRS members who are retirees and beneficiaries of retirees who held the ranks of police officer, sergeant, inspector, and lieutenant, and subject to the terms and conditions stated in Section 1 above, PFRS shall credit Covered Retirees and Beneficiaries with 144 hours for holiday pay per annum during the term of this Agreement.
This holiday pay benefits methodology shall continue from the date hereof until the earlier of: (a) July 1, 2024; or (b) the effective date of any MOU amendment adopted hereafter that results in a material change in the average number of hours of holiday pay received by active sworn police below the rank of captain. (The use of the phrase “average number of hours of holiday pay received by active sworn police below the rank of captain” in this Agreement is used solely for purposes of determining whether an MOU amendment terminates this Agreement.
The Parties agree that by using this terminology, Petitioners in no way concede that use of averages is proper in the calculation of holiday pay; Respondents agree that Petitioners have made no such concession.) The Party seeking to terminate the Agreement is responsible for providing evidence of a material change.
Term of Agreement. The term of this Agreement (“Term”) is from the date hereof until the earlier of: (a) July 1, 2024; or (b) the effective date of any MOU amendment adopted hereafter that results in a material change in the average number of hours of holiday pay received by active sworn police below the rank of captain.
B.
C. Terms and Conditions for Active Sworn Officers. This settlement does not prevent the City of Oakland and the Oakland Police Officers Association from re-negotiating the way holiday pay is calculated for active sworn police, or from negotiating any other term or condition of employment for said active sworn officers.
D. Waiver and Release. Plaintiffs hereby waive and release any and all claims against Defendants that, at any time during the period commencing three years before the filing of the Lawsuit through the Term of this Agreement (the “Settlement Period”), Plaintiffs are entitled to be credited with more than 144 hours per annum for holiday pay (including, without limitation, “floating holiday” pay). Defendants hereby waive and release any and all claims that during the Settlement Period Plaintiffs should be credited with fewer than 144 hours per annum for holiday pay. Defendants ftirther agree that in the event an MOU amendment is adopted hereafter that results in a material change in the average number of hours of holiday pay received by active sworn police below the rank of captain, PFRS will only adjust retirement allowances and benefits from the effective date of such changes and will not assert any claim for overpayments on account of payments made pursuant to this Agreement before such date. 2 EXHIBIT A
Dismissal and Covenant Not to Sue. Promptly after execution of this Agreement by all Parties, Plaintiffs will dismiss the Lawsuit without prejudice. Plaintiffs hereby agree that during the Term of this Agreement they will not re-file the same or similar claims on behalf of themselves or Covered Retirees and Beneficiaries, or provide financial or other support for litigating such a claim. Plaintiffs further agree that they will not, after the Term of this Agreement, file the same or similar claims on behalf of themselves or Covered Retirees and E.
Beneficiaries seeking relief for any portion of the Settlement Period except to enforce the terms of this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall prevent Plaintiffs from filing claims pertaining to the same or similar claims on behalf of, and based upon a member’s status as, a retiree or beneficiary of a retiree who held the rank of captain or deputy chief.
Costs and Fees. Each side will bear their own costs and fees, including expertF. fees and attorneys’ fees.
Admissibility of Settlement Agreement. This Settlement Agreement shall not be admissible in a court of law or other proceeding except to secure its enforcement.
Warranty of Authority; Successors and Assigns. Each Party who executes this Agreement warrants that he or she has the authority to bind the person or entity on whose behalf he or she signs and that he or she is authorized to sign on behalf of the principal. This Agreement shall inure to the benefit of, and is binding upon, each Party’s heirs, successors and assigns.
G.
H.
I. Right to Consult Attorney. Each Party acknowledges that each of them has read this Agreement and has had the opportunity to consult with attorneys as to the meaning and legal effect of the Agreement.
J. Voluntary Execution of Agreement. The Parties acknowledge, agree and understand that each of them executes this Agreement voluntarily and without any duress or undue influence on the part of, or on behalf of, any person or entity; and that no promise, inducement or agreement not expressed herein has been made by any Party to any other Party.
Acts in Furtherance of this Agreement. The Parties agree to execute, deliver and, where appropriate, file any and all documents required to carry out this Agreement.
K.
Mutual Drafting. This Agreement is the product of negotiations and preparation by and among the Parties and their respective counsel. The Parties agree that this Agreement shall not be deemed prepared or drafted by one Party or another, or by one Party’s or another’s attorneys. The language of this Agreement shall be construed according to its fair meaning, and not strictly for or against any of the Parties. The Parties expressly waive the provisions of Cal.
Civ. Code § 1654. The Parties agree that prior drafts of this Agreement were made pursuant to settlement privilege and shall not be admissible to show the meaning of the Agreement.
L.
3 M. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
N. Execution in Counterparts; Facsimile Signatures. This Agreement may be executed in one or more duplicate counterparts, all of which taken together shall constitute the complete Agreement. A faxed signature shall have the same force and effect as an original signature.
FOR PLAINTIFFS:
Dated: March 2S" ,2019 Retired Oakland Police Officers Association By:
Peter Peterson, President
Dated: March Robert Aven, 2019
By:
Robert Aven
Nita BalousekDated: March , 2019
By:
Nita Balousek
Ronald GunarDated: March , 2019
By:
Ronald Gunar
4 M. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
Execution in Counterparts; Facsimile Signatures. This Agreement may be executed in one or more duplicate counterparts, all of which taken together shall constitute the complete Agreement. A faxed signature shall have the same force and effect as an original signature.
N.
FOR PLAINTIFFS:
Retired Oakland Police Officers AssociationDated: March , 2019 By:
Peter Peterson, President
Dated: March 2,3 , 2019 Robert Aven
Robert Aven
Nita BalousekDated: March , 2019
By:
Nita Balousek
ti-i'
Ronald GunarDated: March , 2019
By:
Ronald Gunar
4 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
M.
Execution in Counterparts; Facsimile Signatures. This Agreement may be executed in one or more duplicate counterparts, all of which taken together shall constitute the complete Agreement. A faxed signature shall have the same force and effect as an original signature.
N.
FOR PLAINTIFFS:
Retired Oakland Police Officers AssociationDated: March , 2019 By:
Peter Peterson, President
Dated: March Robert Aven, 2019
By:
Robert Aven
Nita BalousekDated: March , 2019
v.By: ua
Nita Balousek
Ronald GunarDated: March , 2019
By:
Ronald Gunar
4 M. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
N. Execution in Counterparts; Facsimile Signatures. This Agreement may be executed in one or more duplicate counterparts, all of which taken together shall constitute the complete Agreement. A faxed signature shall have the same force mid effect as an original signature.
FOR PLAINTIFFS:
Dated: March Retired Oakland PoHce Officers Association, 2019 By:
Peter Peterson, President
Robert AvenDated: March 2019
By:
Robot Aven
Nita BalmisekDated: March j 2019
By:
Nita Balousek
Ronald GunarDated: March „ 2019
/') 4 $
By:
Ronald Gunar
4 Dated: March H_5 ,2019 Raymond Miller
By:
Rayrttbnd Miller
Ned UbbenDated: March , 2019
By:
Ned Ubben
FOR DEFENDANTS AND RESPONDENTS:
City of OaklandDated: March , 2019
By:
Oakland Police and Fire Retirement SystemDated: March , 2019 By:
5 Dated: March 2019 Raymond Miller
By:
Raymond Miller
Dated: March /, 2019 Ned Ubben
7?y/ r,By:
Ned Ubben
FOR DEFENDANTS AND RESPONDENTS:
Dated: March City of Oakland, 2019
By:
Dated: March Oakland Police and Fire Retirement System, 2019 By:
5 Dated: March Oakland Police and Fire Retirement System Board
2019
By:
APPROVED AS TO FORM:
Dated: March , 2019 McCracken, Stemerman & Flolsberry, LLP By:
■Sarah Grossmam-Swenson
Counsel forElaintiff/ana Petitioners
Dated: March , 2019 Hanson Bridget, LLP
By:
Adam Hofmann
Counsel for Defendant and
Respondent City of Oakland
Dated: March ,2019 Gordon & Pol land, LLP
By:
Paul Gordon
Counsel for Defendants and
Respondents Oakland Police and
Fire Retirement System and PFRS
Board
6 EXHIBIT 3