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BUR R ••• FOR MAN lLF'
Michael K K Choy mchoYI@burr.com
Direct Dial (20S) 458-5364 Direct Fax (205) 244-5616
·1:Z11 North 20th Street
F.irnllng"ham, AL :l'i20?,
July 23, 2010
OffiCi (20'; I ~'i) ·3()OO i'lL> (20.'1) 4'iN-5JOO
n u a i, COM
VIA HAND DELIVERY
Honorable William A. Bell, Sr. Mayor
City of Birmingham - City Hall 710 North 20th Street Birmingham, Alabama 35203
Re: The 2008 Firefighters Salary Schedule and Its Adverse. Impact on The I-I Interface
Project Court Imposed February 2011 Deadline I
This letter is written to report my findings and conclusions with respect to the hourly pay rates presently being paid to certain Birmingham Firefighters and the payment of these pay rates' adverse impact on the I-I Interface February 2011 deadline imposed by the Honorable Lynwood Smith, United States District Judge in the 36 year-old lawsuits styled:
United States of America v. Jefferson County, Alabama, et al. John W Martin, et al. v City of Birmingham, Alabama, et al. Ensley Branch of the N.A.A CP., et al. v. George Seibels, et al.
CV -75-S-666-S CV-74-S-17-S CV-74-S-12-S
My investigation and research reveal that the hourly rate of $17,12 presently being paid to certain Birmingham Firefighters was not approved by the City Council of Birmingham, Alabama (the "Council") and the Personnel Board of Jefferson County (the "Personnel Board") as required by Section 12 of the Enabling Act and Rule 8.4 of the Rules and Regulations of the Personnel Board. This conclusion was independently confirmed by Counsel for, and representatives of. the Personnel Board in a meeting held on Wednesday, July 21,2010.
Research reveals that the actual rate of pay approved by the Council and Personnel Board for certain Firefighters, was $13,1692 per hour. The City, however, for the past two fiscal years has been paying certain Firefighters an unauthorized hourly rate of $17.12. As a result of these unauthorized and unapproved payments, the City has overpaid certain Firefighters approximately $1 1 million dollars in each fiscal year for the last two years.
Honorable William A. Bell, Sr. July 23, 2010
As you know, Judge Smith granted the City an extension to complete the I-I Interface project until February 2011 even though the original deadline was January 31, 2010. Judge Smith entered the January 31, 2010, deadline to clear 2,958 backlogged personnel actions by his order dated November 25,2008. Judge Smith recognized that the backlogged personnel actions had to be resolved prior to the implementation of the 2008 salary schedule.
Because the hourly rate of $17.12 for certain Firefighters has never been approved by the Council and Personnel Board, as required by state law, and because it is anticipated that the City's IMS team working on completing the I-I Interface project will begin uploading the approved 2008 salary schedules in mid-August 2010, it is our recommendation that the administrative error be corrected as soon as is practicable since the IMS and Personnel Board technical teams have determined that this correction will add at least an additional four to eight weeks to the completion of the I-I Interface project.
Given these facts and given Judge Smith's order dated November 25, 2008, and given that the City's IMS team, which is presently working on Wave IV (the final Wave) of over 2,900 backlogged personnel actions, is anticipated to begin entering the 2008 salary schedule for the City of Birmingham by mid-August 2010, it is our recommendation that the Firefighter 2008 salary schedule error be fixed as soon as possible for several other reasons.
First, even assuming that the 2008 salary schedule error is corrected by the end of August 2010, the IMS team and representatives of the Personnel Board estimate that this correction will add at least four to eight weeks to the I-I Interface completion date of February 2001. As you recall from the contempt hearing held in Judge Smith's Court on February 11 and March 31, 2010, the City faced contempt charges, fines and other penalties, including the appointment of a receiver, for having failed to meet the Court's November 2008 order, which originally required that the I-I Interface Project be completed by January 31,2010.
As you recall, we were successful in avoiding having the City, its officials, employees or agents being held in contempt and no fines, penalties or any other sanctions were imposed. After hearing testimony from various witnesses, the Court strongly urged the City to complete the I-I Interface Project by this coming December 2010. After much deliberation, input and persuasion from the technical teams of the City and Personnel Board, as well as the court appointed Project Manager, Steve Goldsby, Judge Smith allowed the City until February 2011 to complete the I-I Interface proj ect.
In addition, as you know, we recently held a meeting with the specially appointed Project Coordinator, Steve Goldsby, to inform him of a potential delay in the completion of the 1-1 Interface project because of the recent heart attack and heart problems of Jim Richardson, a key member of the City'S 1MS team. Mr. Goldsby stressed that Judge Smith, while sympathetic to Mr. Richardson's medical problems, continues to expect the City to complete the I-I project by
I X48402 v I
Honorable William A. Bell, Sr. July 23,2010
the February 2011 deadline. Thus, even if your Administration corrects this error by the end of August 2010, the IMS and Personnel Board teams estimate that four to eight weeks will be added to the 1-1 project. As a matter of law, we have no authority to unilaterally extend the February 2011 deadline for completion of the I-I project. We will be required to file a motion with Judge Smith to obtain his permission to go beyond the present deadline of February 2011. As stated above, this February 2011 deadline was originally a January 31, 2010, deadline and Judge Smith was gracious in granting a February 2011 deadline since he wanted to extend the deadline only to December 31, 2010. You should be advised that pursuant to federal law, Judge Smith is not required to extend the deadline any further to allovv the completion of the 1-1 Interface project.
Under Title 28 of the United States Code, a federal judge has wide discretion to enforce court orders for a party found in contempt of a court order. A federal judge can impose fines, other penalties, and/or jail time, on an unlimited basis until the court's order is complied with. As you have personally heard Judge Smith say in open court, he wants this 36 year-old case to end and he wants to release the City from his supervision as soon as possible.
Second, the Mayor's office faces potential legal action from the Council if you fail to correct the salary overpayment since the Council never approved the hourly rates presently being paid to Firefighters. In 2006, the Council approved Resolutions 2013-06 and 2851-06. Combined, these two resolutions authorized a salary increase for certain employees to become effective in FY 2008. The Personnel Board approved these salary increases. As of today, however, the City is not paying according to the salary schedules approved by the Council and Personnel Board. Failure to apply the correct salary schedules approved by the Council and Personnel Board subjects the Office of the Mayor to a legal action by the Council to force your Administration to apply the correct salary schedules to Firefighters.
Third, failure to apply the approved hourly rates to Firefighters also subjects your Administration and/or the City to potential legal action by the Personnel Board to force the City to comply with the Enabling Act since the City is presently paying Firefighters hourly rates not approved by the Personnel Board. As you know, pursuant to Section 12 of the Enabling Act and the Personnel Board's Regulations, any salary schedule approved by the governing body (the Council) of any jurisdiction served by the Personnel Board must also be approved by the Personnel Board. Here, the hourly rates being paid to certain Birmingham Firefighters were never approved by the Personnel Board.
Fourth, there are also other potential legal actions that could be filed against your Administration and/or the City if you continue to allow certain Firefighters to be paid the hourly rates that were not approved by the Council and Personnel Board.
In sum, the more time that elapses during which time certain Firefighters are paid hourly rates that were not approved by the Council and Personnel Board, the more risk there is that the IMS
Honorable William A. Bell, Sr. July 23, 2010
and Personnel Board technical teams will be delayed in completing the I-I Interface project. This failure can expose you, the City, its officials, employees, agents and attorneys to contempt citations and the imposition of fines, and penalties, including the possibility of jail time, or the appointment of a receiver. Given the February 2011 I-I Interface deadline and the project teams' estimation of an additional four to eight weeks necessary to correct the 2008 salary schedule error, it is our recommendation to correct this error immediately given the potential significant legal exposure described herein. It should be repeated here that you, other City officials, employees, agents and the City'S attorneys, face contempt citations, fines and penalties on a personal basis for failure to comply with Judge Smith's orders. See Court Order date April 5, 2010, Paragraph 6.
Very truly yours,
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Attorneys and Counselcn
1901 Sbtth Avenue North, Suite 1500 P.O. Box 306 (35201-0306) Binningbam, Alabama 35203-4642 (205) 251·8100
(205) 226-8799 Fax
BALCH & BINGHAM LLP
Leslie Allen Coyne (205) 226-3484
(205) 488-5821 (direct fax) email@example.com
July 26, 2010
BY FACSIMILE 205-324-1133
Mr. Michael Choy
Burr & Forman, LLP
3400 Wachovia Tower
320 20th Street North Birmingham, Alabama 35203 Email: firstname.lastname@example.org
Re: City of Birmingham Salary Schedules
Dear Mr. Choy:
As a follow-up to the July 21, 2010 meeting of the City of Birmingham and the Personnel Board of Jefferson County, I wanted to summarize the Board's understanding of the salary schedules discussed during that meeting. Please let me know immediately if the information contained in this letter is not correct.
Attached to this letter is a copy of the "City of Birmingham Public Safety Salary Schedule, Effective May 10, 2008," The Personnel Board approved this salary schedule and the various resolutions underlying the schedule. 1
In July 2008, without the knowledge of or approval by the Personnel Board, the City began paying certain firefighter job classes at an hourly rate of $17,12, not the $13.17 hourly rate provided for in the salary schedule approved by the Personnel Board. 2 In September 2008, without the knowledge of or approval by the Personnel Board, the hours worked by certain firefighter classes were decreased from 2704 to 2600 per annum. Although the hours worked were decreased the hourly rate was not decreased. Consequently, it appears that since July 2008, certain firefighter classes have been paid in excess of the hourly rate approved by the Personnel Board.
The salary schedule for City of Birmingham Firefighters must be corrected, For example, if the correct annual salary for a Grade 17F, Step 1 employee is $35,609.60 and that
1 I have not included any discussion regarding the development or implementation of the May 10, 2008 public safety salary schedule. I believe that we are all in agreement on those issues and they need not be revisited here.
-The salary schedule contemplated that firefighters worked 2704 hours per year.
BALCH & BINGHAM LLP
Mr. Michael Choy July 26,2010 Page 2
employee works 2600 hours per year, the correct hourly rate of pay for that employee would be $13.70 per hour.
I believe that you are familiar with the process by which the salary schedule may be adjusted. Section 12 of the Enabling Act and Rule 8.4 of the Rules and Regulations of the Personnel Board govern modifications to the salary schedule. We can discuss these provisions in more detail if we need to.
As Lorren mentioned during the meeting, the next regular meeting of the Personnel Board is scheduled for August 10, 2010.
Please call me if we need to discuss further.
cc: Mr. Lorren O. Oliver Mr. Roger McCullough