Update Message From MEA Attorney Ann Smith Regarding Unions’ Efforts to Invalidate Prop B
Dear MEA Members:
Over the last few months, much has happened in MEA’s legal fight against the City’s 2012 Proposition B ballot measure. I wanted to explain in greater detail what has already happened and what is likely to happen next. On many complicated legal issues – especially anything related to the Prop B litigation – when MEA sends out an e-blast communication, we get feedback from some members who say “oh my gosh just give me the short version” while other members express a desire for the opposite and want “more detailed information.” This e-blast is intended for those of you who are looking for more detail and a better understanding of the step-by-step intricacies of what is happening in the late stages of this now almost eight-year legal process.
Some employees – especially those without a defined benefit pension because you were hired after July 19, 2012 when Prop B took effect – may also be looking for a “bottom line” answer on when and exactly how this will all be resolved. Unfortunately there are too many factors out of MEA’s control that make those questions impossible for anybody to answer right now, but hopefully this detailed update about the state of the Prop B legal proceedings will shed some light on where things are headed.
In August last year, the California Supreme Court upheld PERB’s Decision in December 2015 in favor of MEA and three other City employee unions and definitively ruled that the City placed Prop B on the ballot in violation of State law. (Boling v. Public Employment Relations Board or “Boling I” for short.) Following procedural protocols, the Supreme Court remanded the case back to the Court of Appeal to review the administrative remedies PERB had imposed and directed the court to determine the “appropriate judicial remedy for the violation” it had identified.
On March 25, 2019, the Fourth District Court of Appeal decided the remedy issues. (This case is “Boling II” for short). Boling II upheld PERB’s remedy directing the City to take affirmative action designed to effectuate the policies of the State’s Meyers-Milias-Brown Act (“MMBA”): “Upon request by the Unions, join in and/or reimburse the Unions’ reasonable attorneys’ fees and costs for litigation undertaken to rescind the provisions of Proposition B, and to restore the status quo as it existed before the adoption of Proposition B.” In other words, the Court-approved PERB remedy guarantees a path for Unions to seek invalidation of Prop B and restoration of the status quo in effect before it unlawfully amended the City charter. For this purpose, Boling II expressly directed the parties to the quo warranto process as the available legal remedy for deciding the validity of these Proposition B charter amendments.
Boling II also upheld but modified PERB’s “make whole” remedy by ordering the City to meet and confer over the effects of the Proposition B Initiative and to pay the affected current and former employees represented by the Unions the difference, plus 7 percent annual interest, between the compensation, including retirement benefits, the employees would have received before Proposition B became effective and the compensation the employees received after Prop B became effective. According to the Court of Appeal, the City’s obligation to comply with the compensatory remedy extends until completion of the bargaining process, including the exhaustion of impasse procedures, if an impasse occurs.
Following this decision, the Ballot Proponents filed a petition for rehearing which was denied within 24 hours of its filing.
On May 7, 2019, MEA and the three other affected Unions, submitted a detailed letter to the Mayor and City Council explaining why and how the City had lost all arguments in defense of Prop B after seven years of litigation and three published appellate court decisions – two from the Fourth District Court of Appeal and one from the California Supreme Court. Unions asked the Mayor and City Council to take a rational path forward on this record by joining Unions in an application to the Attorney General for leave to sue in quo warranto for the purpose of securing a Court-ordered invalidation of the 2012 Proposition B charter amendments. Unions explained why this course of action was in the City’s best interest and why any good faith meet and confer process over the required “make-whole” remedy would necessarily require the parties to know whether Prop B will be declared invalid and stricken from the City Charter or will be declared valid and remain in effect.
A special closed session was set for June 10, 2019, for the City Council to get advice from and give direction to the City Attorney’s Office regarding how to proceed on Prop B in light of Unions’ May 7th demand letter.
In the run-up to this closed session, Mike Zucchet and I met with each of the nine Councilmembers to review our May 7th letter and answer questions regarding it. On June 10th, Ann Smith addressed the Council in open session prior to Council’s adjournment to closed session. As reported previously on MEA’s website, the Council voted 6-3 to direct the City Attorney’s Office (CAO) to file a request with the Office of the Attorney General to allow a quo warranto action by the Unions as “Proposed Relators” and directing the CAO to express City’s agreement with it. The Council also authorized the City Attorney’s Office and City staff to take appropriate action and affirmative action to invalidate Proposition B.
Needless to say, MEA welcomed the City Council’s determination that, having defended Prop B for 7+ years without success, the needs of the City’s 1.47 million residents are best served by ending this disruptive, protracted litigation and thereby improving the City’s capacity to recruit and retain qualified employees. However, the Council does not have the authority to strike Proposition B from the City Charter without an order from a court of proper jurisdiction declaring Prop B to be invalid and directing the City Council to do so. The process for getting such a court order is called a quo warranto action and a private party’s right to file such an action must come with permission of the Attorney General.
The Attorney General’s approval is needed because this type of action is based on the theory that a city charter has been amended in violation of State law and, as a result, the “sovereign state interest” is offended. Leave to sue, if granted, means that the complaint to be filed in the Superior Court will be in the name of the People of the State of California “on the relation of Unions” versus the City of San Diego. The AG ultimately controls the action but leaves it to the Unions as private parties to conduct the litigation.
On June 25, 2019, MEA and the three other Unions submitted their complete application package to the Office of the Attorney General in support of their request for leave to sue in quo warranto. This package included: Application, [Proposed] Verified Complaint in Quo Warranto, Verified Statement of Facts, Exhibits ##1-9 In Support of Application, Memorandum of Points and Authorities, Notice to City, Cover Letter to PERB, and Cover Letter to Ballot Proponents c/o Lounsbery Firm. No complaint seeking invalidation of Prop B can be filed in the Superior Court until and unless the Attorney General gives us the “green light.”
On July 12th, the City also filed a response in support of Union Relators’ Application for leave to sue in quo warranto.
Nevertheless, on June 28, 2019, the Lounsbery firm filed a rambling objection of sorts to the Application on behalf of the three Ballot Proponents (who are April Boling, T. J. Zane and Stephen B. Williams) — and promised a “forthcoming opposition,” which was filed on July 10, 2019. This Opposition argues that leave to sue should not be granted. Unions will reply to this Opposition to show the AG why the arguments being made are frivolous; contradict what the Fourth District Court of Appeal decided when directing the parties to the quo warranto process for a determination regarding the validity of Prop B; are contrary to the final and binding legal and factual determinations already made by PERB and upheld by the Courts which may not now be re-litigated.
However, it must be noted that these three Ballot Proponents appear ready to continue this wasteful litigation — despite the adverse economic impact on the City — based on a selfish and erroneous assessment of their own alleged “rights” in complete disregard of the rights of thousands of City employees and the demonstrated needs of the City’s residents. Based on what MEA knows, the Lounsbery firm’s legal fees for this frivolous fight to defeat Statewide rights guaranteed to City employees are being paid by various “pension reform” groups who support this agenda and are funding this wasteful battle in the Ballot Proponents’ names and with their consent.
There is no concrete timeline which controls the AG’s decision-making on whether to grant leave to sue. The process involves internal procedures within the AG’s office. It is hoped that leave to sue will be granted based on the irrefutable record in this case which includes a decision in Unions’ favor by the State’s highest court – and that the AG’s order granting leave to sue will issue promptly. When it does, the Quo Warranto Complaint will be filed in the San Diego County Superior Court and the next round of litigation will begin.
Tighten your seatbelts. We will keep you posted . . . meanwhile, keep the faith.
Ann M. Smith, Esq.