Message from Ann M. Smith re MEA’s Victory Before PERB Board in Continuing Legal Battle Over Prop B
Just as 2015 was taking its last gasps on December 29th, the Public Employment Relations Board (PERB) issued a 63-page, comprehensive decision in favor of MEA (and three other City unions) on their unfair practice case against the City over the so-called 2012 “pension reform” measure which became Proposition B. Upholding the key findings and legal conclusions of the Administrative Law Judge who presided over the trial in July 2012, the PERB Board agreed that the City had violated its duty to meet and confer under the state’s public sector bargaining law (Meyers-Milias-Brown Act or “MMBA”) by refusing to bargain over a key policy determination that defined benefit pensions should be eliminated for all new employees, except sworn police officers, and replaced with a 401(k) defined contribution plan. The City’s refusal to meet and confer on such a significant issue affecting terms and conditions of employment – and implicating the City’s ability to recruit and retain qualified employees to serve the public – occurred in a context where the City and MEA had successfully reached agreement through the meet and confer process on a number of other difficult issues.
[Note: MEA had to seek a court order from the Fourth District Court of Appeal just to force the City to attend this trial in July 2012. And, even after the 4th DCA issued its decision in MEA’s favor and against the City, Mr. Goldsmith’s office pressed unsuccessfully for the California Supreme Court to intervene to stay the PERB proceedings and hear the City’s arguments which the 4th DCA had rejected. San Diego Municipal Employees Assn. v. Superior Court (City of San Diego)(2012, 4th Dist) 206 Cal.App.4th 1447, review denied, 2012 Cal. LEXIS 8375.]
The PERB Board’s decision rejects the City’s argument that Mayor Sanders legitimately acted as a “private citizen” when using the power and prestige of his office as Mayor to launch the measure, raise money, negotiate with certain City officials and special interest groups outside the City regarding the measure’s terms, and endorse the efforts to gather signatures qualifying it for the ballot. Mayor Sanders testified under oath that he believed he had a right to do as he did – and to refuse MEA’s repeated demands to meet and confer – based on the advice of City Attorney Goldsmith and his office. Indeed, City Attorney Goldsmith stood at Mayor Sanders’ side during more than one press conference in and after November 2010 to announce the Mayor’s intention to promote their “reform” Charter amendment. And Mayor Sanders candidly admitted during his testimony that the whole point of his effort in leading this “citizens’ initiative” was to avoid the obligation to meet and confer with the City’s unions and to avoid the need to seek City Council’s approval for his far-reaching and impactful proposal to eliminate defined benefit pensions for all new hires (except sworn police officers) and replace them with a 401(k) defined contribution plan. Moreover, because City Councilmembers were similarly dependent upon City Attorney Goldsmith’s advice in the matter, they never repudiated the Mayor’s actions and took no action as a Council to rectify Mayor Sanders’ refusal to bargain in response to MEA’s repeated demands – though copies of the demand letters and “refusal” responses were sent to them. The Mayor and Council accepted the benefits of Proposition B on the City’s behalf.
City Council Votes to Appeal
The PERB Board’s decision is a huge leap forward on a legal journey that began with MEA’s repeated “meet and confer” demands in 2011 and, as yet, has no immediate end in sight. On January 12, 2016, the City Council voted to authorize City Attorney Goldsmith to file a petition for extraordinary relief with the Fourth District Court of Appeal (4th DCA) to challenge the PERB Board’s decision. There was no surprise in this decision to appeal given the politics which have surrounded this issue since City Attorney Goldsmith first stood with Mayor Sanders under the “City seal” at a press conference inside City Hall in November 2010 to announce Mayor Sanders’ plan to change employee pension benefits – and then later stood with him in April 2011 on the City Concourse in yet another press conference following the “compromise” reached over the language of “their” proposed ballot initiative.
Apart from the fact that the decision to appeal was expected for largely political reasons, there is also good reason for MEA to welcome this opportunity to have the 4th DCA re-visit this important case now that PERB’s acknowledged expertise in enforcing the state’s public sector bargaining law has been applied to a full factual record developed during trial. While the City Attorney continues to re-cast this battle as one allegedly between “union leaders” and the “public’s constitutional right to govern by initiative,” the real issue before the Court is whether the City, acting through its Mayor and other high-ranking officials — who have duties and responsibilities to act on behalf of the City in compliance with the state’s public sector bargaining laws — can purposefully use the visibility, prestige, power and resources of their public offices to develop, lead, and promote a so-called “citizen’s initiative” for the express purpose of avoiding the City’s meet and confer obligations over admittedly mandatory subjects of bargaining.
While the 4th DCA has jurisdiction to make and enter a decree enforcing, modifying, and enforcing as modified, or setting aside in whole or in part the decision of the PERB Board, the findings of the Board with respect to questions of fact, including ultimate facts, if supported by substantial evidence on the record considered as a whole, shall be conclusive.
The Legal Battle Continues With the City’s “Make-Whole” Liability Accruing
The City’s Petition for Writ of Extraordinary Relief must be filed with the 4th DCA on or before January 28, 2016. Once the City’s Petition is filed, briefing will begin with the City’s Opening Brief in support of its Writ Petition; PERB’s Brief as Respondent; MEA’s and the other three unions’ Briefs as “real parties in interest;” and the City’s Reply Brief. Once the briefing is complete, the case will await oral argument before a 3-judge panel. Any party dissatisfied with the decision of the 4th DCA may seek review by the California Supreme Court – which is entirely within the court’s discretion to grant or not.
Watch for MEA’s next Viewpoint Magazine where I will write more about this important case in my Legal Report.
Let’s celebrate yet another victory in our pursuit of a remedy for the City’s flagrant violation of state law . . . even as we prepare for the next battle!
Ann Smith, Esq.