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County attorney says Metro pay and benefit arbitration didn’t follow law

The Metropolitan Police Department’s arbitration with a police union that will cost taxpayers $6.9 million more for pay and benefits for officers strayed from Nevada law throughout the process, according to a review completed by Clark County’s legal counsel, Mary-Anne Miller.

The scathing 2 ½-page memorandum, completed Tuesday, was the result of a review requested by County Commission Chairman Steve Sisolak. Sisolak, a member of the joint city-county Fiscal Affairs Committee that oversees the independent department’s budget, has publicly questioned the legality and circumstances of the arbitration involving the Las Vegas Police Protective Association, which represents rank-and-file officers.

Sheriff Doug Gillespie has pushed back against Sisolak’s suggestion that the two sides used the arbitration as cover to avoid a backlash over increased pay for current cops as county commissioners are considering a sales tax increase to pay for more police officers.

Miller didn’t speculate about what transpired behind the scenes, but questioned the legality of the outcome.

“In conclusion, it is clear that the arbitrator’s conduct of this arbitration was not in compliance with Nevada law,” Miller wrote in the memorandum obtained by the Review-Journal. “I cannot determine from the information available to me at this time whether that was the sole responsibility of the arbitrator or whether statutory requirements were improperly waived by the participating parties.”

The officers were granted two consecutive 0.75-percent cost-of-living increases and a 13.46-percent increase in the department’s contributions to employee health insurance premiums. That’s an annual increase from $8,572.73 to $9,726.62.

Among the findings of Miller’s review:

– The Chicago-based arbitrator, Robert Perkovich, was not selected from a panel of seven names submitted by either of two national arbitrator organizations. The usual process is for each side to strike a candidate from the list until one arbitrator remains.

Robert Smith, the department’s Chicago-area attorney, recommended Perkovich and both sides supported the pick after rejecting a panel of candidates instead of narrowing it down to one. In an email, Perkovich declined comment, saying the parties stipulated the matter would “not be open to the press.”

– The award lacked the “statutorily required paper trail,” which Miller calls a “glaring deficiency.” The arbitrator is required by law to keep a full record of hearings and a court reporter was on hand for the three-day hearing in September. However, both parties, in violation of the law, waived the reporting of their final arguments in support of “last, best offers.”

“As a result, there is no record of this important phase,upon which, presumably, the arbitrator based his decision,” Miller wrote.

– There is no written record of the final offers that both parties made, despite the presence of a court reporter at the hearings. Sisolak has said the offers were only made verbally.

“This violates the express statutory requirement of written final offers,” Miller wrote.

– The arbitrator’s initial order didn’t meet legal requirements because it included no rationale for his decision, failed to identify the final positions of the parties, didn’t indicate what party’s proposal was selected, and did not state the financial cost of the award.

– After Sisolak’s questioning, the arbitrator last week authored a one-page “supplemental opinion and award” in an effort to meet the requirements of the state law. That didn’t pass muster with Miller, either.

“… It does not appear that he took this opportunity to update himself on Nevada law, as that supplement also fails to meet the requirements,” Miller wrote of the follow-up document.

By law, an arbitrator must make an initial determination that the employer has the financial ability to pay the claim sought by the union. That determination must cover all available revenue while keeping in mind funding for the current year being negotiated, Miller wrote.

“No such preliminary finding was made by the arbitrator,” Miller wrote. Miller also found that the arbitrator’s reasoning for granting the $6.9 million award, provided in his followup award, didn’t give reasons that the law recognizes. If an arbitrator finds that the employer can pay for the demands of an employee union, the only remaining statutory criteria for making an award is looking at the compensation of other government employees, within Nevada and out-of-state.

The first two reasons the arbitrator gave, which tie the award to an increase in the cost of living and the interest and welfare of the public, aren’t recognized under the law, Miller wrote. The third reason the arbitrator gave — that the Department can financially support the award — infers that the arbitrator determined the department’s ability to pay the costs, Miller wrote.

“However, the basis of that determination was not provided, as required by (state law),” Miller wrote.

The arbitrator’s original opinion incorporated tentative agreements on merit and longevity, but “He failed to specify the significant costs of that part of his award in either his original or supplemental order,” Miller wrote.

“It validates what I’ve been saying,” Sisolak said. “It talks about issues that didn’t comply with Nevada Revised Statutes. I just want to have this be as transparent as possible and have the rules followed.”

Sisolak said he’s still waiting for a promised transcript of the arbitration hearing.

Gillespie declined comment Wednesday, saying he wanted time to review Miller’s assessment. At a press conference last week called in response to Sisolak’s comments, Gillespie strongly defended his reputation, his staff’s work, and the arbitration.

“The arbitration process is set in stone,” he said. “There are rules, there are processes, and they were followed.”

Contact reporter Ben Botkin at bbotkin@ reviewjournal.com or 702-405-9781. Follow him on Twitter @BenBotkin1.

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