The City of San Diego’s foundering financial ship has struck another shoal in the form of a lawsuit filed in 2005 by officers of the San Diego Police Department’s canine unit. The dog cops maintained that the extra pay they receive for handling dogs ought to be counted in their base compensation when it came to figuring their pension pay. Though a document used by the City’s own payroll department seemed to support the plaintiff officers, the city attorney’s office rebuffed efforts to settle the case, took it to court, lost, appealed with the help of an expensive outside law firm, and lost again. The decisions to fight and appeal might have cost the City hundreds of thousands of dollars it could ill afford to lose.
“I was contacted in 2005 by some San Diego police officers who asked me if I would look into this issue,” says Rancho Santa Fe attorney Mike Conger. “Their issue was the City was not including their canine-care pay in the retirement calculation, and the officers believed the City should be. Well, I did a little background and investigation, and I came to believe that the case had merit. So I offered to help them.”
What Conger found to support the officers’ contention was “the City’s Municipal Code, which in this particular case is section 24.0103.… That code section says, to figure out whether something is included or not [in figuring pension pay], you have to look at these earnings code documents that the city payroll systems uses. For all the different types of pay the City has, each one has a certain code. The code for canine-care pay is listed in the included column.”
Types of pay listed in what Conger calls “the included column” ought to be counted when city employees’ pensions are figured. But in the case of canine police officers, their canine-care pay wasn’t being counted, Conger explains. “So we filed a declaratory relief lawsuit, asking the court to take a look at this and determine who is right.”
Police dogs are not left at the police station at the end of their handlers’ shifts. They stay at the homes of their handlers, in four-by-ten-foot kennels. On May 21, 2006, officer Peter Mills, then a 31-year San Diego canine-unit cop and one of three officers who originally approached Conger, testified in court as to why the dogs go home with their handlers every night. “[It’s] not only the bonding,” Mills said, “but there’s always training going on. He’s not like a normal yard dog, where you open the kennel and go in the house and watch TV for an hour. You have to be with your dog [when he’s out of the kennel]. That is our canine-unit policy because of the danger or the liability if someone came into your yard while the dog is loose [or] the dog gets out and gets hurt.… Even while you’re watching them, you may be calling them to you — there is always some kind of training going on with this dog, because our biggest goal is to have the perfectly trained dog. If you think about it, you’re releasing this dog on a person to take this person down. You have to be able to call them up.… Once the dog is on the bite, you have to take off the bite. You do this by building the bond and always being with that dog. If there’s no bond, you’ll have a lot less control.”
Mills continued, “The whole time I had police dogs…none of my dogs ever interacted with my family members. I have another dog at home. They’re completely separate.”
Asked to explain what goes into canine care at home, another plaintiff, Detective Steven Sloan, a 21-year canine-unit veteran, testified, “My responsibility is basic 24-hour care for the dog. I feed him. I bathe him. I have to clean his kennel. I have to take him to and from the vet. I have to clean the vehicle that he rides in. It is somewhat like having a child, because 24 hours [a day] you have to pay attention to what the dog is doing.… I have to exercise the dog, throw the ball for him, especially on days off, when I’m not in a work environment. I have to ensure the dog stays healthy.”
Conger asked Sloan, “Approximately how much time do you spend on a weekly basis for your responsibilities in caring for the [dog]?”
“On a weekly basis,” Sloan answered, “I would say between five and seven hours.”
Officer Paul Hubka, the third plaintiff in the case against the City, estimated he spends six to seven hours a week. (Hubka, incidentally, is the officer whose police dog Forrest was found dead in the back of Hubka’s patrol car on June 20 of this year. The car was parked in the driveway of Hubka’s home in Alpine, where the temperature crested 100 degrees that day.) Mills placed his canine-care time at seven to ten hours a week. All of them get paid an extra half hour per day, or three and half hours per week. A lot was made in court over just how that pay is received and whether it differs from overtime pay, which, everyone agreed, is not included in the determination of retirement benefits. When Sloan testified, Conger, who wished to establish that canine-care pay is part of base compensation and not overtime, asked him, “When you work overtime…do you clock in and clock out or fill out a pay record?”
Sloan answered, “I have to fill out an overtime slip every time I work overtime.”
Conger: “Do you do that for the canine-care responsibilities?”
Sloan: “I do not.”
Conger: “Would it be correct to say that your canine-care responsibilities are paid by the job as opposed to by the hour?”
In his cross-examinations of the three plaintiffs, and in his closing argument, deputy city attorney Mark Stiffler — who no longer works for the city attorney’s office — stressed that regardless of the fact that it is paid automatically, canine-care pay is 3.5 hours a week at the overtime rate. “Are you aware that overtime isn’t included in retirement-based compensation to determine your retirement allowance?” he asked Sloan, who answered, “I’m aware of that.”
To settle the question of whether canine-care pay was overtime in the strictest, not-included-in-retirement sense, Conger called Kyle Elser, payroll manager for the City of San Diego’s auditor’s office, to the witness stand and had him explain the Earnings Codes Document referred to in the San Diego Municipal Code, section 24.0103. Conger looked at the document as he said, “There is in bold caps at the beginning the explanation: ‘The add-on earnings codes listed below are classified as “negotiated specialty add-ons” and are included in retirement based compensations because all employees performing that class of work during their ordinary work hours on a consistent basis earn them at the same rate of pay.’ Do you see that?”
Conger: “If you go two more pages down…there’s a list that says, ‘1K9A, canine-care pay,’ correct?”
Conger: “Canine-care pay is actually in the…Earnings Codes Document explicitly listed as included in base retirement earnings compensation, correct?”
Conger went on to point out that the document had been signed by the City’s personnel director, Rich Snapper, and the city manager, Lamont Ewell, and a handful of other city officials and ratified by the city council and that this had happened eight years running.
Stiffler, faced with this damning evidence, stuck to his argument that if it’s paid at the overtime rate, it’s overtime, and overtime is not included in retirement compensation. Therefore, it was an “error” that the code for canine care was on that list. He was backed in that conclusion by Elser, who said, “My plan is to remove [canine-care pay] altogether, because that code has never been used. So my plan is — I will note it in the memo that this code was entered in error, never been used.”
Reached by phone recently, Conger says he argued that it couldn’t be an error if “five different people over eight different years — so that is 40 different times — all made the same mistake [by signing the Earnings Codes Document]. That just doesn’t seem logical.”
Judge Judith Hayes found for the plaintiffs. “The court finds,” she wrote in her decision, “that canine care pay is not overtime and should be included in the determination of final compensation. Canine care pay is not overtime pay in the classic sense. Each K-9 officer receives the same fixed pay for canine care, regardless of how many off duty hours are spent attending to the animal in question. This pay doesn’t vary on the basis of whether or not the officer is called in to work overtime with the K-9. This compensation is more akin to a part of the regular periodic compensation received by the officers for their work as K-9 handlers.”
Instead of accepting defeat, the City appealed the ruling and hired international law firm Latham and Watkins to manage the appeal for them. “We didn’t think the ruling was correct,” City Attorney Mike Aguirre says. “And we’ve had a lot of success using Latham to handle appeals. We’ve also had a lot of success with them on the Police Officer’s Association cases. We felt strongly that the City should not have to pay any judgment, and we didn’t want to see this established as a precedent.”
But the appeal was to no avail. The appellate ruling, which was filed January 29 of this year, declared the City’s contention that canine-care pay never should have been included in retirement pay to be “based on a faulty reading of the ordinance. The second paragraph of section 24.0103 does not exclude all overtime payments from the definition of base compensation.”
The appellate opinion continued, “The City next contends this court should reverse the judgment because after the judgment a City auditor prepared a revised earnings codes document that now expressly excludes canine care pay from Base Compensation, and provides that the prior inclusion of canine care pay was a ‘mistake.’ The City requests that we take judicial notice of this Earnings Codes Document, which was created after the June 28, 2006 judgment, and expressly applies only to earnings after July 1, 2006. The City also requests that we take judicial notice of several documents entitled ‘Acknowledgement of Earnings Code’ signed by various City officials on January 25, 2007, four days before the City filed its opening appellate brief in this case. This evidence is not properly before us. It is a fundamental principle of appellate law that our review of the trial court’s decision must be based on the evidence before the court at the time it rendered its decision” (italics theirs).
The appellate court’s final word on the matter is that the City “will have to include canine care in base compensation for the purposes of calculating retirement benefits. This order applies only to canine care pay earned after July 1, 2000, and earned at a time when canine care pay was identified in an Earnings Codes Document within the definition of Base Compensation. As so modified, the judgment is affirmed. Appellant [the City] to bear respondents’ [Sloan’s, Mills’s, and Hubka’s] costs on appeal.”
Conger says the pension money involved in the case amounts to “about a couple thousand dollars per officer per year. So if it’s all completely added together, we are talking in the tens of thousands, or possibly $100,000 for everybody.”
The City could have settled, Conger believes, “for less money than they paid Latham and Watkins just to do the appeal.”
And how much did the City pay Latham and Watkins? Aguirre declined to say. Conger says, “I’ve done a public records request for Latham’s bills, and I can’t get them. I’ve been after them for four months. But it’s my belief that Latham has charged the City over $300,000.”
But the costs don’t stop there. The San Diego Police Department’s motorcycle officers, who receive extra pay for the at-home care of their bikes, filed suit to have their motorcycle-care pay included in their pension calculations. Mike Conger represented them. The case was settled.