Filner Under Fire for Saying He Would Follow the Law

by on July 26, 2012 · 6 comments

in Editor's Picks, Government, Politics

Mayoral candidate says he would negotiate with unions on pay freeze.

San Diego mayoral candidate Bob Filner came under fire last night for comments he made in an interview with the UT San Diego, saying that “he would push for the freeze even if the courts ruled Prop B illegal because two-thirds of city voters favored the plan.”  The UT San Diego headline reads “New backer of SD pension overhaul:  Bob Filner.”  The Voice of San Diego’s Scott Lewis took to Twitter, more or less accusing Filner of flip-flopping on Prop B:

 

 

Filner was among the plan’s most vehement opponents during the primary election, and he still is.  However, Filner also said during the final mayoral debate before the primary election that should Prop B be passed by the voters, it would become the law of the city, and therefore he would be obligated to implement it as mayor.  He said he would follow the law and the will of the voters.  And the voters have spoken.

Filner told the UT that he’s better suited to negotiate the freeze with the public employee unions because of his Republican opponent’s outright hostility to unions and public workers.  The pay freeze, after all, is what the voters wanted.

And now Filner’s being criticized for saying he’d implement the law—as would be his duty as mayor—just like he said he would.  The UT and Lewis are mocking him because he says that as mayor he thinks he would be able to avoid the oncoming lawsuit by being able to negotiate with the unions where DeMaio could not.

There are a couple of things to keep in mind here.  Prop B essentially consists of two basic parts:  The switch from defined benefit pensions for public employees to a defined contribution 401k plan.  Studies by the city’s independent budget analyst determined that switching to a 401k plan would save the city almost nothing as opposed to the pension system, and could end up costing the city $56 million.  The second part of the plan is the mandate of a pensionable pay freeze for city employees for five years.  The pay freeze is where the entirety of the $963 million that proponents of Prop B claim the city would save would come from.

I’m not a lawyer, but I’m pretty certain that a voter mandate of a switch to a 401k plan for city employees is not illegal.  It may be ill advised cheap theatrics in order to take a swipe at public workers, but it’s perfectly legal.  I am just as certain, however, that a voter mandated pay freeze on public employee salaries is perfectly illegal, as state law requires that all public employee pay agreements be collectively bargained.  Prop B is deliberately and directly in defiance of state law.

Carl DeMaio—one of the main authors of Prop B–and his friends despise unions and don’t like public workers very much, and Prop B is their way of sticking it to them.

There is a way around the pensionable pay freeze, though, that might stop an all out mutiny among the public employee unions, and Bob Filner knows this.  “Pensionable salaries” refers to the amount of pay that is used to calculate how much is put toward a worker’s pension.  Freezing the pensionable pay “freezes” the amount of money the city has to put into the pension system (the switch to 401k’s will start with new hires only).

What “pensionable pay” does not include are cash bonuses that may be awarded to city workers.  This is merely supposition on my part, but my guess is that Filner’s negotiating plan with the unions includes freezing pensionable pay for five years as called for by Prop B, but he would also likely write in certain bonuses into the labor contract, effectively giving city workers the raises that they’ve been denied for the last five years and that Prop B would deny them for another five years.  Those “raises” would simply not be reflected in the pension payments they would receive upon retirement.

Hell would freeze over before a Mayor DeMaio would agree to any such deal, and off to court we’d go.

This is really not all that much different from what Filner proposed during the primary.  In his own alternative plan, Filner said that he would negotiate a five year deal with the public employee unions that would ideally include a two year pensionable pay freeze and cap pay increases at 2% for the three subsequent years.  Replace the 2% raises with equivalent cash bonuses and you’ve got pretty much the same deal.

In essence it breaks down this way:  Follow Filner’s approach and negotiate in good faith with the unions, and the city has a good chance of realizing significant savings from pension reform.  Certainly not the full $963 million promised (wink-wink-nudge-nudge) by the backers of Prop B, but there will be real savings.  Follow DeMaio’s approach and try to strong-arm and bully the unions and the public workers, and the city will be forced to spend millions on litigation costs, will lose in court, and there will be no pensionable pay freeze.  Without the pay freeze, according to the Independent Budget Analyst, there are no savings from pension reform, and in fact the city will lose money (the switch to 401k’s is estimated to cost $56 million, in addition to the lawsuit).

Filner’s way actually has a chance at salvaging something positive from this whole mess.

So here’s my final question to the UT’s Craig Gustafson and the Voice’s Scott Lewis:  What would you have Filner say?  Should he openly defy the will of the voters who passed Prop B with 65% of the vote–the very same voters he is asking to elect him Mayor of San Diego—and vow to fight the law in court to the bitter end?  Or should he do what he said he would do and work to implement the law in as reasonable and responsible a way as possible, following the will of the voters?

Only one of those options would appear to be at all politically expedient.  And Bob Filner is, after all, a master politician.

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Andy Cohen

Andy spent 15 years working in the highest levels of the San Diego professional sports world, including both the Padres and the Chargers. He began his foray into writing while a volunteer for Francine Busby's 2010 Congressional campaign, eventually becoming a contributor to the now defunct SDNN. He has reported on local and national politics for both the OB Rag and the San Diego Free Press. When not reporting news and events, he offers political and policy commentary from a liberal perspective, occasionally turning back to his sports roots. While he does not hide his more liberal political bent, Andy always strives for fairness in the telling of a story.
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avatar Scott Lewis July 26, 2012 at 11:48 am

Wow. You doth take umbrage on Mr. Filner’s behalf a bit too easily. I have no idea how you can say that what I wrote is “mocking” him. And nowhere did I say he flip flopped.

But aside from that, my point was simply that Filner could have been working toward this solution before.

In fact, this “way around” you describe about the pay freeze is exactly why DeMaio and company want and like Proposition B: It provides a way to reward meritorious employees without incurring more pension liabilities. He’ll be most pleased that you and Filner have seen the beauty in this.

My point was only that what Mr. Filner said to the U-T is a big deal. As he points out, it would nullify the unions’ legal case and it actually implement Prop. B’s pay freeze for five years. As it stands, it’s merely a strong recommendation that the Council implement it each year for five years.

My reference to Alvarez was merely a reminder that had politicians like Filner backed Alvarez’ alternative earlier, this all could have been implemented in a strong bipartisan fashion. Not sure how this is the vicious attack you’re describing.

Filner’s been “under fire” in a lot tougher ways than this. You greatly overreacted to, and didn’t understand, the point I was making. Not saying that’s your fault. I could have kept tweeting.

Scott

avatar Andy Cohen July 26, 2012 at 4:27 pm

Here are the implications that I saw:

The title of the UT story says it all: “New backer of SD pension overhaul: Bob Filner.” He opposed the law, and now supposedly he’s a big supporter of it = he flip flopped

In your tweets, you ask where he was when David Alvarez proposed the same thing he’s talking about now? “And @AlvarezSD shakes his head….” = “well why didn’t he just say that in the first place and support Prop B? Why didn’t he jump on the Alvarez bandwagon in the first place?” Because he opposed Prop B, and he had his own pension plan he was touting that he thought would be better. He lost that battle. Prop B won. Now he’s spelling out how he would honor the wishes of the voters.

That’s mocking, by the way.

You said, “In fact, this “way around” you describe about the pay freeze is exactly why DeMaio and company want and like Proposition B: It provides a way to reward meritorious employees without incurring more pension liabilities. He’ll be most pleased that you and Filner have seen the beauty in this. ” Well, I would argue that DeMaio has no intention of “rewarding meritorious employees,” because that’s the ONLY way he gets to that magical $963 million figure; by implementing the full pay freeze. But that’s what the voters said they wanted. Filner is merely saying “this is how I’ll give it to them.”

avatar Scott Lewis July 27, 2012 at 2:13 pm

Pretty low bar for “mocking.”

You write in your post: “The UT and Lewis are mocking him because he says that as mayor he thinks he would be able to avoid the oncoming lawsuit by being able to negotiate with the unions where DeMaio could not.”

This has no relationship to anything I’ve said and I have no idea what you’re talking about. It’s precisely that this would render a legal fight moot that I think it’s a big deal.

It’s also a stretch to read the U-T headline as “mocking” him for “flip flopping.” But regardless, I can’t be held responsible for their headline and, again, seems pretty meh to be getting all worked up about. It was correct for them to take notice of this stance from Filner because, again, it’s a significant decision.

Filner could have done any number of things. He could have followed the law with Prop. B. but lobbied the City Council to avoid imposing a pay freeze each year, as the initiative requests. They can do that with a 2/3 vote. He could have demanded that it not be implemented until a court decides on the legal issues.

He chose this path. And I found it interesting. To say what I tweeted is mockery, is to say that even a slightly critical response is mockery.

avatar JEC July 27, 2012 at 7:10 am

Filner seems to acknowledge it as the law while not endorsing it as policy. Management via the ballot box weakens public management by removing authority and hence responsibility from those in charge, providing avenues for excuses turning managers into administrators at a time we need managers. I did enjoy Scott’s comment “He’ll be most pleased that you…” finding the words of an close friend very revealing. Cash bonuses may be DeMaio’s intended work-around but cash bonuses are harded to control and invite corruption by the selectively subjective choices the Department heads usually exercise; Department heads who serve at the pleasure of the Mayor. In my book and experience cash bonuses are questionable public policy.

avatar La Playa Heritage July 26, 2012 at 3:25 pm

The approved Proposition B, is made of 8 different parts or Amendments to Article IX in our San Diego City Charter. Including getting rid of the Union’s automatic Veto power over the City Council for non-vested pension benefits by Amending Section 143.1.

Section 140: Establishment of Separate Retirement Pension Systems; Definitions.
Section 141.1 Reform of Sworn Police Officer Defined Benefit Pension Plan
Section 141.2: Full and Fair Employee Contributions for the Defined Benefit Pension Plan.
Section 141.3 Elimination of Pension Benefit for Felony Convictions
Section 141.4 Transparency and Public Disclosure of City Pension Payouts
Section: 150: Creation of a Defined Contribution Plan.
Section 151: Disability and Death Benefits For Defined Contribution Plan Members.
Section 5. Article IX (Retirement) Section 143.1 of the San Diego City Charter is hereby amended as follows: “To the extent allowed by law, the requirement for a majority vote of employees and the requirement for a majority vote of retirees for adoption of an ordinance as described in this section shall sunset and be deemed unenforceable as of the effective date of this section. Unless required under a preexisting Memorandum of Understanding as of the effective date of this article, any city employee hired after September 1, 2012 shall not have a right to vote in any vote required under this Section.”

In addition, the public also approved Section 7. SEVERABILITY. “It is the intent of the People that the provisions of this Charter amendment are severable and that if any section or provision of this act or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect any other provision or application of this Charter amendment which can be given effect without the invalid provision or application.”

avatar La Playa Heritage July 26, 2012 at 3:43 pm

It looks like there are 10 changes to our City Charter including:

Section 3. Article VII (Finance) of the San Diego City Charter is hereby amended to add the following sections:
Section 70.1: Reforming Base Compensation Used to Establish Pension Benefits
Section 70.2: Emergency Limitations on Base Compensation for Calculation of Pension Benefits (July 1, 2012 to June 30, 2018) .

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