Approve Revisions to the Human Resources Guide Relative to District-Directed Restrictions on the Use of Accrued Vacation

In a memorandum to the Committee, Human Resources Director Harvey Pye and General Manager Celia Kupersmith provided staff’s recommendation to approve an amendment to the District’s Vacation policy in the Human Resources Guide to allow the General Manager, at his/her discretion, to approve the sell back of 80 hours of vacation time when an employee has reached the maximum accrual cap for vacation hours, but has not been allowed to use vacation time due to specific, unusual operational needs of the District. The report stated that the Board of Directors, by Resolution No. 2004-083 at its meeting of August 27, 2004, approved a voluntary program for reducing vacation bank balances, and increased vacation accrual cap from 30 days to 40 days. This increase in the accrual cap was part of the Union Coalition bargaining process in 2004.

The report also stated that under the current policy, employees are notified on their pay stub that they are approaching the vacation cap. In the event the employee reaches the cap, all future accruals are forfeited until the employee’s accrual balance falls below the cap. The General Manager may authorize additional accrual if there is a bona fide business reason that the employee has not been allowed to take vacation. In such circumstances, the employee must have a pre-determined plan to use their vacation and reduce the accrual. This policy has been used in situations where a particular work unit is critically understaffed due to employee(s) absence and when a work unit has a special task/event, i.e., the necessity for additional staffing for special event. Under the proposed policy change, the General Manager would be authorized to pay an employee for 80 hours of accrued vacation instead of lifting the accrual cap.

The report noted that this policy change would apply only to non-represented employees, since the represented bargaining units have specific language in their Memoranda of Understanding regarding vacation accruals. However, during the last bargaining cycle, one unit, the Customer Service Representatives in the International Brotherhood of Teamsters, Local 856, negotiated a provision that the District would examine a pilot program for vacation accrual pay. Staff has met with this unit to discuss what is being proposed for non-represented employees, and they have indicated they would like to try the same on a pilot basis. Other bargaining units would also be advised of this change in District policy to see if they would like this same policy to be implemented prior to the next bargaining cycle. Any provision other than what is being proposed would have to be part of the 2009 bargaining process.

The report further stated that staff recommends that the Vacation policy in the Human Resources Guide be amended to approve the sell back of 80 hours of vacation time when an employee has reached the maximum accrual cap of 40 days, but has not been able to take vacation due to extraordinary circumstances. A copy of the report is available in the Office of the District Secretary and on the District’s web site.

At the meeting, Harvey Pye summarized the staff report, noting that in the past, the District has tried to manage its liability for accrued vacation by allowing employees who have reached to cap to accrue additional vacation hours under special circumstances. He further stated that the proposed action would firmly enforce the accrual cap of 40 days, but would allow one-time payouts of 80 hours of accrued vacation time to certain employees who have not been able to take vacation due to unusual circumstances.

Discussion ensued, including the following:

• Director Grosboll made the following inquiries:

  • He inquired if the determination would be made by the General Manager as to who would be eligible to sell back vacation time. In response, Mr. Pye confirmed that the General Manager would make that determination.
  • He inquired as to whether eligibility would be limited to employees who have reached the vacation accrual cap, and are in situations in which District necessity required them to work extra hours and prevented them from taking vacation, and Mr. Pye answered in the affirmative. Acting General Manager Kary Witt added that such circumstances are quite rare, and that the District views vacation as a necessity so that employees can appropriately balance work and free time.
  • He asked for examples of such circumstances in the past. In response, Mr. Witt stated that after 9/11, the District cancelled vacation for its security personnel for three months. This resulted in significant “over-accrual” of vacation time for some employees. Mr. Pye noted that there have been rare circumstances that due to some unforeseen change in the District’s business conditions or operations, the only person qualified to do certain work had reached his or her vacation accrual cap but could not take vacation.
  • He inquired as to how many District employees would be eligible for vacation payouts. In response, Mr. Witt stated that there are currently only three such employees and fewer than 10 in any given year.

• Director Sanders made the following comments and inquiries:

  • She inquired as to whether the new policy would apply to compensatory time, and Mr. Witt clarified that it would only apply to vacation time.
  • She expressed her dissatisfaction that the District allows its employees to accrue so much vacation. She noted that in the private sector, it is unusual to provide so much vacation time to employees, and that eight weeks of vacation is extraordinarily generous. She stated that in her opinion, authorizing payment for 80 hours of vacation would exacerbate the District’s financial deficit and would not be prudent at a time when the District is proposing a toll increase. In response, Mr. Witt stated that increasing the vacation accrual cap to 40 days came about as a result of the 2003 Union Coalition bargaining cycle, and that the unions conceded on several things in order to gain this additional vacation benefit.

• Director Newhouse Segal inquired as to what financial impact this proposed action would have on the District. In response, Joseph Wire stated that that it is actually financially advantageous to the District to allow vacation payouts at current salary rates, rather than allow the vacation time to remain on the books and be paid out in the future at higher salary rates. He also noted that all managers diligently work with their employees who are at the vacation accrual cap to devise a plan to draw down vacation time.

Staff recommended, and the Committee concurred by motion made and seconded by Directors MOYLAN/NEWHOUSE SEGAL to forward the following recommendation to the Board of Directors for its consideration:

RECOMMENDATION

The Rules, Policy and Industrial Relations Committee recommends that the Board of Directors approve an amendment to the District’s Vacation Policy in the Human Resources Guide, under the section entitled, “General Rules Governing the Use of Vacation,” subsection, “Accrual,”

by deleting the following verbiage:

“Written approval from the appropriate Department Head, Deputy General Manager, or District Officer, and the General Manager must be obtained before any vacation may accrue over 40 days. The General Manager may authorize additional vacation accrual of five days, up to 45-day accrual cap. The request must detail a bona fide business reason for the request and the time period the employee commits to using the excess accrual;”

and, replacing it with the following verbiage:

“The General Manager may authorize payment for 80 hours of accrued vacation in lieu of vacation taken when the following occurs:
a.  The employee is at the maximum accrual balance or is nearing the maximum; and,
b.  The employee cannot be permitted to be away from work for a bona fide business reason; and,
c.  The payment is made solely at the discretion of the General Manager.”

Action by the Board at its meeting of June 13, 2008 – Resolution
NON-CONSENT CALENDAR

AYES (6): Chair Pahre; Vice Chair Hernández; Directors Grosboll, Newhouse Segal and Sandoval; President Moylan (Ex Officio)
NOES (1): Director Sanders
ABSENT (2): Directors McGlashan and McGoldrick

Approve FY 08/09 Annual Disadvantaged Business Enterprise Goal

In a memorandum to Committee, DBE Program Administrator Gail Jackson and General Manager Celia Kupersmith provided staff’s recommendation relative to the proposed FY 08/09 annual overall Disadvantaged Business Enterprise (DBE) goal.

The report outlined the two-step process used in determining the District’s overall DBE goal for Federal Transit Administration-assisted (FTA-assisted) contracts, in accordance with 49 Code of Federal Regulations Part 26 issued by the U.S. Department of Transportation (U.S. DOT). In Step 1, base figures are calculated to determine the relative availability of DBEs in the areas of expertise involved in the District’s expected contracting activities. The District used the California Unified Certification Program DBE database and the Census Bureau’s 2005 County Business Pattern database to determine the base figures. In Step 2, an assessment of known relevant evidence is analyzed to determine what adjustments are needed to tailor the base figures to the District’s marketplace. Staff has analyzed data on actual DBE participation in comparable District race/gender-neutral contracts awarded in recent years to adjust the base figures.

The report stated that the District has identified thirteen FTA-assisted contracts to be considered for FY 08/09. Staff determined an overall base figure of 5.78 percent for these contracts, which figure was adjusted downward to a 4.5 percent goal, based on past participation statistics for similar contracts and because several of the contracts are highly specialized. The report included a summary of the base figure and adjustments determined for the contracts.

The report also stated that the U.S. DOT regulations require that the maximum feasible portion of the annual overall DBE goal be met by using race/gender-neutral methods. Also, the District does not propose to set a contract-specific DBE goal on new contracts to be awarded in FY 08/09. The report noted that to date, the District has met or exceeded its annual DBE goals using race neutral means.

The report further stated that staff recommends publication of the proposed annual DBE goal of 4.5 percent, which reflects staff’s determination of the level of DBEs ready, willing and able to participate in the District’s U.S. DOT-assisted contracting activity for FY 08/09. The report noted that the regulations require the proposed goal to be published for public inspection and comment to ensure public participation in the goal-setting process. The regulations also require that the goals be submitted to the FTA by August 1, 2008. The FTA may review and suggest adjustments to the goals upon consultation with the District; however, prior concurrence with the goals is not required. A copy of the report, including the methodology used to arrive at the goal, is available in the Office of the District Secretary and on the District’s web site.

At the meeting, DBE Program Administrator Gail Jackson summarized the staff report.

Discussion ensued, including the following:

• Director Sanders inquired as to whether the annual overall DBE goal of 4.5 percent would apply to contracts such as window washing. In response, Ms. Jackson stated that the 4.5 percent goal only applies to contracts that are partially FTA funded. She stated that in the case of the window washing contract, that particular vendor happens to be a DBE, and this type of DBE participation is counted towards the District-wide DBE participation.

• Director Grosboll made the following inquiries:

  • He inquired as to the District’s overall DBE goal. In response, Ms. Jackson stated that the District currently does not set a District-wide DBE goal.
  • He inquired as to whether having a relatively low DBE goal of 4.5 percent affected the District’s eligibility for federal funding. In response, Ms. Jackson stated that it does not affect the District’s eligibility for such funding, because it is simply an evaluation of the availability of DBEs. She noted that if DBEs are not available for the District’s specific contracts, the goal cannot be any higher. Attorney Miller explained that the methodology for determining the annual overall DBE goal is one that is prescribed by federal regulation, and that every grantee of FTA funds must follow the same objectively measured process and then submit the goal to the FTA. He stated that any risk associated with the size of a particular goal is minimal, because the goal is tailored to the agency’s specific procurement needs for the coming fiscal year, with those needs applied to the marketplace in terms of DBE availability.

Staff recommended, and the Committee concurred by motion made and seconded by Directors STROEH/KERNS to forward the following recommendation to the Board of Directors for its consideration:

RECOMMENDATION

The Rules, Policy and Industrial Relations Committee recommends that the Board of Directors approve the following actions relative to the FY 08/09 annual overall Disadvantaged Business Enterprise (DBE) goal, as follows:

Authorize staff to submit the District's annual overall DBE goal for federally-assisted contracting opportunities to FTA by August 1, 2008.

Action by the Board at its meeting of June 13, 2008 – Resolution
NON-CONSENT CALENDAR

Public Comment

There was no public comment.

Adjournment

All business having been concluded, the meeting was declared adjourned at 9:55 a.m.