To the surprise of……well, no one, really, Prop B was deemed illegal according to state law by an administrative law judge in a ruling released Tuesday evening, essentially invalidating Prop B.
The City, of course, intends to appeal the ruling.
The crux of the case is this: Proponents of Prop B insist that it was a “citizens initiative,” since it was put on the ballot after a petition drive that gathered over 115,000 signatures. Therefore it reflects the will of the people and should not be overturned. The opponents’ argument in the case of Prop B was twofold: That according to state law workers rights cannot be put to a vote via ballot initiative; and that Prop B wasn’t a citizens’ initiative at all in the first place……in a nutshell.
The case didn’t get as far as determining the legality of putting workers’ rights up for a vote because the judge found that the process was illegal to begin with.
In order for an initiative to be considered a citizens’ initiative it must be originated from non-governing entities; someone outside of government. Prop B was originated in Mayor Jerry Sanders’ office, with specific backing from City Council President Pro Tem Kevin Faulconer and would-be mayor Carl DeMaio. The initiative was written by the mayor’s people.
The mayor then took the initiative to the streets, with the help of the San Diego County Taxpayers Association and the Lincoln Club, both non-government entities. Still, the proposal itself came directly from the mayor’s office, which is the key point here.
State law requires that any changes to any labor agreement between a governing body and its represented public employees must go through a “meet and confer” process, meaning that any such proposals must be brought to employee representatives for negotiation. A governing body cannot unilaterally change the terms of its workers’ employment, and since the mayor is the head of the city and is the chief negotiator for the city, any proposals that come from his office are considered to have been originated by the city government.
That’s it. All stop.
But proponents of Prop B still insist that it was a citizen’s initiative. The mayor was acting as a private citizen, and the measure was promoted by private entities (SDCTA and the Lincoln Club). In a July op-ed in the SD-UT, City Attorney Jan Goldsmith lamented the challenge to the now law, saying that just because the mayor supported it doesn’t make it a “’sham’ citizens’ initiative” as the four different union groups assert.
“Governors (including Jerry Brown on his current tax initiative), mayors and other political leaders have regularly supported citizen initiatives and never has that support rendered those citizen initiatives ‘shams’” wrote Goldsmith.
He’s right. But there’s a major difference here: Governor Brown was not seeking to unilaterally change existing labor contracts as Prop B specifically did.
The 63 page ruling clearly and painstakingly lays out exactly where the measure originated: In the mayor’s office.
The mayor cannot separate himself from his office in an effort to circumvent the legislative process. In the context of putting forward a legislative initiative, he cannot claim to be a “private citizen” while he still serves as the Mayor of San Diego. Which is exactly what he did.
Had the measure originated from the SDCTA or the Lincoln Club, the mayor would have been free to express all the support he wanted and campaign on the measure’s behalf to his heart’s content. In that case there would have been no conflict.
State law requires that any changes to public employee contract that originate from a governing body are subject to “meet and confer in good faith” requirements. Mayor Sanders, according to the ruling by Administrative Law Judge Donn Ginoza, deliberately ignored the meet and confer requirements because in his judgment he would never be able to get the unions to agree to his plan. So he circumvented the process and took the measure directly to the voters. And that’s a big no-no.
It was on this basis that the judge set aside Prop B. Where it goes next is surely to the appellate courts, where the City, Carl DeMaio, and the SDCTA’s Lani Lutar will try to make their case that as a citizens’ initiative the meet and confer requirements don’t apply. They will lose that argument. Ginoza’s decision was crystal clear on the timeline and the origination of the measure. Simply because Sanders claims he handed the measure off to private community groups does not wipe away his role in creating it in the first place. Further, the judge also ruled that the individuals that took the measure and ran with it were acting as agents of the mayor, further tethering it to the city government.
From the decision:
The Mayor under the color of his elected office, supported by two City Councilmembers and the City Attorney, undertook to launch a pension reform initiative campaign, raised money in support of the campaign, helped craft the language and content of the initiative, and gave his weighty endorsement to it, all while denying the unions and opportunmity to meet and confer over his policy determination in the form of a ballot proposal. By this conduct the Mayor took concrete actions toward implementation of the reform initiative, the consequence of which was aunilateral change in terms and conditions of employment for represented employees to the City’s considerable financial benefit……..by virtue of the Mayor’s status as a statutorily defined agent of the public agency and common law principles of agency, the same obligation to meet and confer applies to the City because it has ratified the policy decision resulting in the unilateral change, and because the Mayor was not legally privileged to pursue implementation of that change as a private citizen. These conclusions make it unnecessary to address any other contentions urged by the unions.
The fact is that California, much to the chagrin of Republicans, is not a right-to-work state, which means that employees—public or otherwise—that are represented by a union have certain rights when it comes to their collectively bargained employment contracts. Just because you may not like unions and what unions represent does not mean in the State of California that you can simply pretend that they don’t exist and unilaterally change the terms of a contract. If you don’t like the law, then work to change the law.
This is the second time in the last two weeks that the city and the City Council has been smacked down for believing they could simply ignore the law. And as predicted last June, this whole Prop B mess has turned out to be a giant waste of time and money for San Diego taxpayers.
Andy Cohen
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First the Plaza de Panama Issue; now Prop B. Don’t these guys ever consult a lawyer before they attempt to do something? It’s amateur hour all over again.
Yeah, they did…..San Diego City Attorney Jan Goldsmith.
But regardless, they’ve shown particularly through these two initiatives that they really don’t care what the law says. They apparently think they’re above the law, which is really no surprise when it comes to Republicans. But I’m rather shocked about how the Dems on the City Council have behaved (mostly on PdP…..except for Sherri Lightner, they all opposed Prop B).
Hear the UT-San Diego going boo-hoo… Saying the voters were robbed; dude from the “Taxpayers Association” was saying the same thing on KPBS.
I guess the common sense notion that any gain or result coming from an illegal action shouldn’t stand doesn’t count anymore. So following this logic, they’ll come out next and say the government shouldn’t be seizing luxury cars and real estate from dope dealers. What ever happened to law and order? Or does the law only count when its convenient?
” Or does the law only count when its convenient?”
Only when. That’s exactly the way Goldsmith/Sanders played ball. The attention goes to the big smackdowns of their deeds (PdP, Prop B), but numerous smaller neighborhood issues evolved into lawsuits that the city lost over the past 8 years because the Muni Code and State laws were interpreted to mean whatever Goldsmith/Sanders wanted them to mean. And every department head and deputy city atty and most councilmembers under these two bad actors knew that the game was such.
Hoping that Filner will end all of this type of very bad government and waste of time and money.
This wasn’t some obscure technicality or loop hole, this was clear from the start for anyone to see. You must meet and confer.
The real question, the elephant in the room, is why would they go ahead with this even though they new they were on untenable legal ground?
They (TEApublicans) have been repeating the same lies over and over to create an emotional public backlash against middle class public employees. This seething hatred against your neighbor creates an atmosphere that allows for almost anything to happen.
I’m sure the powers that be thought we were on the precipice of a extreme right shift in our city and country and with this new radical leadership even the law would be subjected to their interpretation and in every case favor the corporate elite.
One of the most compelling arguments against the Prop B fraud was the use of city staff to draw it up. If the former mayor and now Chamber of Commerce lobbyist ordered it, he was misusing city funds, and he can’t deny that he was acting as mayor when he sent staff into action.
There’s been a tradition of arrogance in the mayor’s office — from O’Connor to Hedgecock to Golding to Murphy — and Sanders followed it. Let’s hope the disruption and defrauding of the city process can now settle into the more widely spread corruption of more democratic city governments throughout the country, the kind that’s easier to dig out because more people are involved in it.
What’s the latest on this? Has the PERB heard the City’s appeal yet? The City should drop this before more money is wasted.