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System offers a last chance

Revelations of misconduct in the Sacramento Fire Department have shaken the community: drinking on duty, cruising bars, giving joy rides to women and attending a Porn Star Costume Ball.

Numerous regulations were violated, including the city's zero-tolerance policy on drug and alcohol use in the workplace. Yet of the nine most egregious offenders identified by the city, five were allowed to keep their jobs in a controversial about-face.

The five firefighters were quietly issued suspensions and allowed to sign "last-chance contracts," which permit them to continue working with the caveat they will be fired for any further wrongdoing.

"It's a helpful alternative if you don't want to push an employee out the door, if it's somebody you want to rehabilitate," said Dee Contreras, the city's labor director. "It's not something we make available to everybody. We can refuse to do it."

The decision has angered some city politicians and focused the spotlight on how the city handles internal discipline. No written policy exists on the city's last-chance agreements, which sidestep the clear-cut - but often costly and lengthy - civil service process.

The recent disclosure that four firefighters have been accused of engaging in group sex while on duty at Sacramento's Station 12 prompted Mayor Heather Fargo and others to call for their termination, but raises questions about whether these workers also will be offered last-chance agreements.

The notion of a last-chance contract emerged in Sacramento more than 15 years ago, a byproduct of programs to help workers with substance abuse problems. The city recognized drug and alcohol addiction as an illness, and the contracts include requirements for counseling or treatment, Contreras said.

Over time, use of the contracts has broadened to include a variety of disciplinary issues including anger management, echoing a national trend.

While some legal experts warn the agreements can pose dangers to employees or employers, more often they are characterized as "win-win" agreements.

For instance, they allow flexibility in situations in which a worker with an otherwise squeaky-clean record commits a fireable offense. In the case of public safety workers, when the city has spent large sums of money on training, it helps protect a valuable investment, Con treras said.

The city's investigation into firefighter misconduct turned up multiple allegations against each of the five reinstated workers. But officials said each man had a clean discipline record and was "salvageable."

It's not clear how often the city has employed last-chance agreements in lieu of termination, or in which departments. Contreras was unable to provide that data last week.

Brian Rice, president of Sacramento Area Firefighters Local 522, did not return calls for comment.

Dave Topaz, president of the Sacramento Police Officers Association, said many officers have signed last-chance contracts in the past decade. Fewer than 10 of those were for something other than substance abuse, he said.

"Hundreds of thousands of dollars are spent training officers, and to just throw it all away, even if there is a major problem, well, I would hope citizens would think carefully about it," Topaz said. "These officers know if they cross the line one more time, it's bye-bye - it certainly makes them more attentive employees."

In the past, Topaz said, the city often failed when it tried to fire police officers under its civil service procedure, in which the burden of proof is on the employer. Under previous administrations, some investigations were not as thorough as necessary, and charges couldn't be proved, Topaz said.

Topaz said that is changing under police Chief Albert Nájera. In addition, he said, the union and police brass are working together to spot problems early and encourage troubled officers not considered salvageable to resign in lieu of termination.

Norman Brand, a San Francisco labor mediator and the author of several books on alternative discipline, said he sees an upswing in the use of last-chance agreements across the country.

"Unions are very effectively using this as a tool for employees who really need some help," Brand said. "The larger the investment in the employees, the more the employer wants to use the last-chance agreement. They save the employee without eviscerating their own disciplinary policy."

San Francisco Fire Chief Joanne Hayes-White said she brought back the use of last-chance contracts when she was tapped to head the department a year ago.

"I think a lot of fire departments use them because everyone deserves a second chance," Hayes-White said. "It also creates a healthier environment ... More of the work force is willing to come forward if they're concerned about a fellow firefighter now that they know they won't be responsible for that person's termination."

But some legal experts warn there are dangers in the use of such agreements.

Their use can be weighed in future disciplinary cases involving other employees, said Chris Knowlton, director of the Center for Negotiation & Dispute Resolution at the University of California's Hastings College of the Law.

"Arbitrators look at how employees in comparable situations have been treated, and if the proposed penalties are in keeping with what's happened in the past," Knowlton said.

Some employees may receive harsher punishment through a last-chance agreement than if they went the civil service route, said Carol Vendrillo, director of UC Berkeley's California Public Employee Relations program. In the civil service process, employers have the burden of proof that misconduct took place, something not required in last-chance contracts.

Topaz said some workers might want to take that risk.

"Sure, they might be able to beat (a charge) down, but in the process, every little detail comes out and sometimes comes out in the press," Topaz said. "Why would they subject themselves and their family to that? They're not going to want to see that happen."

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