Fresno City Hall recently tweaked its rules for moonlighting employees.
Some now wonder if the rules need a wholesale overhaul.
At issue is Section 3-102 of the Municipal Code: Full-Time Employment Defined; Employment Outside City Service.
In a nutshell, the law says a full-time city employee who wants to take a second job must get a work permit from City Hall.
In the old days that meant getting an OK from the city manager.
That changed when Council Member Esmeralda Soria on March 17 introduced an amendment to 3-102. The key change: An employee would apply for a work permit to the proper authority as outlined in the City Charter.
You see, 3-102 dates back more than 20 years to when Fresno had a council-city manager government. The mayor was elected citywide, but was merely one of seven votes on the City Council. The city manager (hired and fired by the council) ran all of the municipal government’s day-to-day operations.
That changed dramatically in January 1997 when Fresno began its experiment with the strong mayor form of government. The mayor became the city’s chief executive and a separate branch of government. The seven-member council retained its legislative powers and became a co-equal branch with the chief executive.
Under the revamped City Charter, the council kept control of the City Clerk’s Office and the City Attorney’s Office. Council members also hire/fire their own staffers (chief of staff and assistants). Everyone else in a workforce of more than 3,000 ultimately reports to the city manager, who, in turn, is hired/fired by the mayor.
Soria’s thinking: Per the City Charter, employees from the City Clerk’s Office, the City Attorney’s Office and individual council staffs should seek approval for work permits from the correct chain of command. Ultimately, that’s the City Council.
Soria’s amendment – on the surface – was a house-cleaning chore that should have been done two decades ago.
And the proposal was treated in such a ho-hum way. The council on March 17 concluded a five-hour meeting by approving the amendment’s introduction in all of 80 seconds. The only council members other than Soria to speak were Steve Brandau to second Soria’s motion and President Paul Caprioglio’s call for the vote. The amendment passed 7-0.
The amendment was adopted on March 31 as part of the consent calendar. No council member bothered to pull the amendment for further discussion.
Then I got involved.
I’ve been watching City Hall for a long time. I had no idea a full-time employee had to get a work permit to hold a second job on her own time. As Soria’s amendment worked its way through the process I decided I would at some point see if City Hall kept an official list of work permits.
That point came a couple of weeks ago. I made a state Public Records Act request for the list.
At first I got a bit of pushback from city officials. They said the list isn’t for public consumption – personnel matters are exempt under the Public Records Act. I said a city worker’s second job is no more a City of Fresno personnel matter than what the employee watches on TV at home.
Pretty soon I had the list, courtesy of the City Attorney’s Office.
There are 236 names on the list. Some of the work permits expired in 2015. Several city workers have more than one permit. Most of the moonlighting employees appear to work 10 to 20 hours a week at their second gig. One employee works 40 hours a week at his second job – consulting.
The second jobs are a varied bunch. One worker has a barbecue catering business. Another is a waiter at Chili’s restaurant. A Fire Department employee also works as a juvenile corrections officer for the Kings County Probation Department. There’s a fitness trainer, a swimming-pool builder, a boys basketball coach, a beekeeper, an interpreter, a farmer, a notary public and several landlords.
The original work permit law – 3-102 – authorized the City Council to create rules governing second jobs. This the council did with a resolution passed in 1993. (Much of this resolution appears to have been included in Soria’s amendment.)
The resolution makes clear that the idea behind the work permit is public protection. City Hall doesn’t want a city employee in a conflict of interest – for example, a code inspector by day and an apartment complex manager by night. And City Hall doesn’t want an employee falling asleep at his city job because he’s working all night at a convenience store.
The more I thought about the list in my hands, the more I thought of two questions.
First, has the work-permit requirement outlived its usefulness?
I’m not convinced city officials have a legitimate reason to insist city workers get permission to do something legal – hold a second job – on their own time.
True, no one wants a city worker acting like a zombie on the day job because he’s working a full shift at another job five nights a week. But no one wants that same city worker acting like a zombie on the day job because he’s watching a full shift of ESPN’s SportsCenter five nights a week. If City Hall requires a permit to do the former, why not the latter? The answer is simple – City Hall in the name of efficiency doesn’t have the authority or assets to stick its nose into every aspect of a city worker’s private life.
As to the conflict of interest argument, I get no sense that city officials constantly monitor the off-duty actions of city workers. Conflicts of interest either pop up during the course of life (at which time they’re dealt with) or they remain unseen forever. I suspect the work-permit process has nothing to do with preventing or eliminating conflicts of interest.
“I don’t think they should be able to do that,” Marina Magdaleno, business representative for the city’s blue-collar union, said of City Hall’s ability to nix a city worker’s desire for a second job.
Based on her experience, Magdaleno said, the work-permit issue has never come up during contract negotiations.
“Maybe it should,” Magdaleno said.
Dee Barnes, president of the city’s white-collar union, kindly emailed me a copy of the 1993 resolution. She said she has thought for years that work-permit rules need a public vetting and, perhaps, major reform.
For instance, Barnes said, her observation of City Hall power struggles over the years suggests that volunteer work can sometimes cause more serious conflicts of interest than a second job that leads to a paycheck.
“I can see having rules about not using your city uniform, city tools, or city authority and/or power,” Barnes told me in an email. “But having a permit for every outside employment has always seemed silly to me. I have always wondered why no one challenged the rule.”
Barnes also guessed that a number of city workers have second jobs but no work permits. She said that’s probably because they don’t know of the requirement.
Which raises the second question eating at me: Should I make available my list of moonlighting city workers to you, the reader?
After all, I’m the one who says it’s nobody’s business if city worker John Doe digs ditches on the side. Why would I then turn around and “out” Mr. Doe by publishing my list.
Well, it’s not my list. It’s your list. It’s the public’s list.
City leaders 25 or 30 years ago decided the city manager, in order to effectively do the people’s business, needed to keep tabs on city workers holding down second jobs. That list of moonlighting employees was a factor in the city manager’s performance. I don’t know how the people can keep tab on the city manager unless they have prudent access to the same information coming across the city manager’s desk.
For that reason, I think the work permit list is fit for public consumption.
But there’s another reason. I’m unemployed. I have time to file Public Records Act requests and wait for a response. I have time to bug (tactfully) city officials about my requests. What right do I have as a freelance journalist to get the list, give it a thorough reading, then decide that I can handle the contents but my fellow Fresnans can’t?
Besides, let’s say Barnes is right. Let’s say some city workers have second jobs but haven’t bothered to get permits. A public vetting of the current list (as kept by the Human Resources Department) might lead to some names being added in the coming weeks.
If City Hall says the current list is a good thing for conducting the people’s business, then a complete and accurate list of moonlighting city workers would be the best thing.
Finally, I asked Council Member Soria last week about this issue. I asked why she didn’t require in her amendment that a complete list of moonlighting city workers be kept at the City Clerk’s Office and posted on the City Clerk’s website. I asked why her amendment didn’t also require that the Form 700 (statement of economic interests) completed annually by each elected official also be posted on the City Clerk’s website.
After all, I said, transparency is every bit as important to sound democratic government as the separation of powers that her amendment sought to affirm.
“I’ll think about it,” Soria said.