Apparatus Operator Premium Litigation

In the 2007 through 2010 collective bargaining agreement, the Portland Fire Fighters and the City of Portland agreed for the first time to include apparatus operator pay, which is paid essentially to all members of the bargaining unit. Joe Gray, retired Portland fire fighter, petitioned the FPDR Board to include apparatus operator pay in the calculation of retirement benefits for FPDR One members. The Board declined to include that in the calculation of retirement pay.

Our office filed a class action circuit court lawsuit in Multnomah County, claiming that the City had improperly failed to pay these pension benefits, which both violated the FPDR One retired fire fighters’ pension contracts, and Oregon wage claim statutes. The City responded by arguing that it was improper to file such a lawsuit without first exhausting the administrative procedure that the FPDR had somewhat belatedly provided for Mr. Gray and others in similar circumstances. Judge Henry Breithaupt ruled in favor of the City, holding that it was improper to commence circuit court litigation before concluding the administrative process. Our office appealed that decision and the matter has been fully briefed before the Oregon Court of Appeals, but no argument has, as yet, been set.

Although we believed it was appropriate to go directly to circuit court, nonetheless we filed an administrative appeal on behalf of Mr. Gray and a number of other fire fighters, and in an April 27, 2011 opinion, Administrative Law Judge Rick Barber ruled in favor of those fire fighters, holding that the amount of apparatus operator pay should be included in the calculation of Tier One FPDR retiree benefits. We have posted a copy of Judge Barber’s opinion below.

The City appealed Judge Barber’s opinion, and the appeal was denied in the Circuit Court. While the appeal was pending in the Court of Appeals, we filed a second class action lawsuit, and filed an action known as a Writ of Mandamus on behalf of several retirees who were entitled to the additional pay.  The Writ of Mandamus was granted, and the City subsequently agreed to settle the case.  The terms of the settlement required payment of approximately $2.25 Million in retroactive payments, and an agreement to include Apparatus Operator pay in the pension calculations moving forward.  The revised pension rates take effect August 1, 2014.

Click here for a PDF download of Judge Barber’s written opinion

Click here for a PDF download of the City’s appeal from the ruling by Judge Barber

Click here for a PDF download of Judge Barber’s ruling on Longevity pay