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Union Tribune Opinion Piece by Ann Smith: Attack on PERB over Prop. B is Misdirected

The following opinion piece by MEA attorney Ann Smith was published in the Union-Tribune on Thursday, February 28th:

In Response: Attack on PERB over Prop. B is Misdirected

The writer is responding to the editorials “An assault on the rights of San Diegans” (Feb. 14) and “Jerry Brown and his rogue state agency” (Feb. 25):

While repeated attacks on PERB over Prop. B may make good politics for some, they leave readers misinformed about the real legal landscape.

When an administrative law judge for PERB recently issued a 58-page decision against the city on Prop. B, the U-T [Editorial Board] longed for the day when a “real judge” would hear the case. They called PERB “a rogue agency” targeting San Diego by “using unprecedented tactics.”

It undermines the strength of our democracy when disagreement with a judicial outcome prompts an attack on the judge while the evidence he heard and the state law precedent he applied go entirely unmentioned. Not only do administrative law judges fulfill a critical role in this state’s administration of justice, but “real judges” at the Fourth District Court of Appeal already rejected this anti-PERB hysteria last year. (See San Diego Municipal Employees Association v. Superior Court of San Diego County (2012) 206 Cal.App.4th 1447.) When the city tried to prevent PERB from hearing the case against Prop. B at all, these “real judges” concluded that PERB was not biased against the city as the city attorney alleged – but rather that PERB and its general counsel were doing what the “statutory scheme expressly contemplates.” These “real judges” ordered the case to go forward before PERB because they want “the benefit of PERB’s administrative expertise.” When the city took the same fight to the California Supreme Court, the high court also shot the city down and refused to stop the PERB hearing.

If the PERB board upholds the [administrative law judge’s] decision, the same appellate court will decide whether to grant any petition for review because the city has no automatic right of appeal. If review takes place, the court will defer to the findings of fact the administrative law judge already made based on the overwhelming evidence about the city’s role in Prop. B as employer.

Speaking of “real judges” – nearly 30 years ago, the California Supreme Court rejected the notion that voters must always have the last say. The high court overturned a voter-approved charter amendment because the Seal Beach City Council put it on the ballot without first bargaining with its unions as state law required. The fact that the voters approved the charter amendment did not carry the day; it still mattered how it got to them.

The U-T [Editorial Board is] right about one thing – this is a fight that shouldn’t be happening at all. But if voters have anyone to blame for the Prop. B fiasco, it is certainly not Governor Brown or those entrusted with the duty to enforce state law, it is the city for breaking the law despite repeated and urgent appeals from its unions to bargain which, if heeded, would have prevented this fight. The city’s arrogant pursuit of a bargaining-avoidance strategy was all-the-more wasteful considering that a series of pension “reforms” had already been achieved by bargaining, including the historic deal reached between the city and its labor unions on retiree health benefits.

– Ann M. Smith, Smith, Steiner, Vanderpool & Wax, San Diego

Smith has represented the city’s largest labor union, the San Diego Municipal Employees Association, for 28 years. She served as lead counsel in the Prop. B-related unfair labor practice proceedings before PERB.