concurring:
I concur in our holding that the city has failed to carry its burden of showing that these plaintiffs are compensated for then-services on a salary basis. That result is clearly compelled by our prior decisions. Moreover, I agree that the policy considerations underlying the public accountability doctrine do not have sufficient force when applied to the disciplinary regulations to require us to override the agency’s interpretation and invalidate the regulations. See Balgowan v. New Jersey DOT, 84 F.3d 656, 661 (3d Cir.1996) (upholding amended regulations); Mueller v. Reich, 54 F.3d 438, 443 (7th Cir.1995) (same).
I write separately, however, to express my concern with the development of the law of this circuit. Writing on a clean slate, I would accept the city’s position emanating from the uneontroverted facts that the city intended these plaintiffs to be salaried employees, that no one in plaintiffs’ classification has ever been disciplined, and that the city does not intend ever to impose discipline upon these individuals in a fashion that would jeopardize their salaried status and expose the city to overtime liability. Several other circuits have considered such arguments and have agreed with the public employers’ position that the mere theoretical possibility of disciplinary action is insufficient to cause a class of individuals to lose its salaried status. See Auer v. Robbins, 65 F.3d 702, 710 (8th Cir.1995) (“The mere possibility of an improper deduction in pay does not defeat an employee’s salaried status.”), cert. granted, — U.S. -, 116 S.Ct. 2545, 135 L.Ed.2d 1066 (1996); Atlanta Professional Firefighters Union v. City of Atlanta, 920 F.2d 800, 805 (11th Cir.1991). Our circuit law clearly conflicts with these decisions. See Abshire v. County of Kern, 908 F.2d 483, 487 (9th Cir.1990).
This conflict between circuits is likely due to the fact that the Department of Labor regulations are not easily applied to public employees. The DOL enacted the regulation that formulated the salary test some twenty years before Congress amended the FLSA to apply to any public employees. It was not written with public employees in mind, and in my opinion, it appears to be ill-suited to apply to public employees. In fact, the federal government, notwithstanding the FLSA, has elected not to apply the salary standards, including the disciplinary provisions, to federal employees. See Office of Personnel Management Regulations, 5 C.F.R. §§ 551.101-551. That same decision should probably have been made as to all public employees. We seem to be clearly past that determination, however, which will take place now, if at all, only in the legislative arena.
Finally, I write also to explain why the city here cannot simply alter its policy and thereby fall within the rule articulated by our decision in Hackett v. Lane County, 91 F.3d 1289 (9th Cir. 1996). The city’s disciplinary rules are the product of a collective bargaining process. When it became obvious to the city that it faced potential overtime liability upon the resurrection of the salary standard to public employees, the city attempted to alter its disciplinary procedures to comply with the federal provisions. That attempt was met with a legal challenge by these same plaintiffs, contending that any change in the rules violated the collective bargaining laws of Oregon. Thus, the city apparently cannot unilaterally amend its disciplinary rules, and *1297accordingly it will be forced to pay overtime to these plaintiffs and other similarly situated employees that have always before been considered salaried rather than hourly employees. In my opinion, this is a harsh but unavoidable outcome.