Nearly six months after the California Supreme Court put the kibosh on South Pasadena’s five-year battle to defend its illegal termination of the president of its firefighters’ union, the city is still haggling over the amount of compensation owed to fire engineer Owen Cliff Snider. In addition, the city took over two months to effectuate the final order from the state Personnel Employment Relations Board (PERB) for Snider’s “immediate” reinstatement.
“It’s taking longer than usual” said Diana Nobile, the International Association of Firefighters-hired labor attorney who represents Snider. She said the parties are currently working “in good faith” to resolve the amount of the backpay and hopes a check will be cut in January.
But it took considerable pressure to get the city to comply after the Supreme Court denied the city’s petition for review of an appellate ruling upholding PERB’s reinstatement order.
In correspondence released by PERB, Nobile said the city offered “a variety of excuses seeking to further delay” Snider’s reinstatement–an effort she called “unacceptable.” “The city must not use these administrative obstacles to further delay the remedy the Board awarded more than three years ago” she said, referring to the PERB’s April 2018 proposed decision.
The city confirmed that Snider was formally reinstated to his position as a fire engineer Sept. 8, two days before Labor Day. He is earning regular monthly pay of $8,528.
He is “thrilled to be back,” Nobile said.
But the city has yet to comply with Board’s order to make Snider whole for the financial losses he suffered after being fired in December 2016 in retaliation for protected union activity. At the time, Snider’s annual pay and benefits, including regular pay of $5,980 per month, totaled $117,418, making the nominal amount owed with 7 percent interest at least $600,000 before adjustments for factors such as workers compensation payments he received.
“The city’s been hunkering down every step of the way,” said Frank Lima, General Secretary Treasurer of the IAFF.
The wrangling’s gone so long that PERB pressured the city to consider making a “good faith” partial payment while negotiations continue. It suggested at least $100,000. The city promised that by Nov. 19, it would report to PERB whether it would make a “down payment,” how much, and when.
But it didn’t. The City Council discussed the matter during its closed session Nov. 17. Afterward, city attorney Andrew Jared reported only that “direction was provided” and that “no final action was taken.” Nonetheless, PERB general counsel J. Felix De La Torre told the South Pasadenan Tuesday he “is hoping to see something filed this week.”
Arguing that it is protected by attorney-client privilege, the city has declined to say how much of the final backpay amount may be covered by its litigation insurance policy with the California Joint Powers Insurance Authority. The city maintains a legal reserve of $500,000.
Complying with Reinstatement
In early July, shortly after the Supreme Court denial, PERB ordered the city to document its plans to rescind Snider’s termination, reinstate him, make him financially whole and take a half dozen other steps PERB mandated.
Anni Safarloo of Liebert Cassidy Whitmore, the law firm that lost the case, wrote a reply saying the city’s ability to rescind the termination was “complicated” by a 2017 physician’s finding that rendered Snider unable to perform his old duties; that it needed more information about a subsequent knee surgery; wanted Snider to undertake a “fitness of duty examination”; and needed to confirm he still had the EMT and CPR certifications required for the job. It said it also needed the health information to calculate the backpay amount.
Nobile took exception in a lengthy response Aug. 2, arguing the city could not invoke challenges to the PERB reinstatement order that it failed to raise during the appeal. The city’s “assertions should not stand in the way of Mr. Snider’s immediate reinstatement.” His injuries were “known to the City for years, and were the subject of lengthy testimony at the January 2018 hearing.”
It must reinstate him before seeking to revisit his training or qualifications, she added, since they would not be an issue but for the city’s illegal act. Nor could the city cite questions about his interim employment to stall reinstatement.
A month later, the city relented.
But the compensation remains unpaid. After another enforcement letter from PERB, city attorneys prepared two more submittals in October and November raising questions and warning calculation of the backpay would “require significant effort.” That’s because only two city staff members are qualified to do the work, and both are preoccupied with the “heavy burden” of overseeing the city’s transition from a third-party payroll system to a new inhouse version.
Safarloo also raised objections to figures Snider submitted with respect to overtime, vacation, payroll deductions and CalPERS contributions, and sought five years of his tax returns, W-2s and other IRS data to verify claims about how much he earned during his separation from the city–a period during which he worked as a real estate agent, earned a child development degree and began studying for a law degree.
Doing the calculations “can get complicated and require time,” PERB’s De La Torre, allowed.
Liebert Cassidy Whitmore’s billings to the city for the two most recent compliance reports and its Nov. 17 briefing to the Council do not yet appear to have been presented on the city’s public warrant list. To date this calendar year, the firm has billed the city at least $63,900, mostly for unspecified “personnel matters.”
The city has spent hundreds of thousands of dollars on the Snider case, IAFF’s Lima estimates. “One of the biggest disappoints is that we tried to settle this from the first inning. And it was always ‘no.’ [The city] got played by an outside management law firm that laughed all they way to the bank. Their advice was: keep fighting.”
Meantime, the city has agreed to “biweekly check-ins” with PERB during November and December “to address remaining issues.”