Breaking News from Ann Smith Regarding Pension Ballot Initiative — Setback for City at Court of Appeal
Dear All:
As you know, in January, MEA filed an unfair practice charge (UPC) against the City with the Public Employment Relations Board (PERB) challenging the City’s failure to meet and confer with MEA over the Comprehensive Pension Reform (CPR) ballot initiative (Proposition B). Based on Mayor Sanders’ entire course of conduct with regard Proposition B, the thrust of MEA’s UPC is that it is the City’s initiative (not a bona fide “citizens’ initiative”).
MEA’s UPC explains that the Mayor (with help from Councilmembers Faulconer and DeMaio) merely used the three citizen proponents (April Boling, T. J. Zane and Stephen Williams) as surrogates to get Proposition B on the ballot in order to avoid his obligation as the City’s CEO and Chief Labor Negotiator to meet and confer with MEA. When MEA filed its UPC, MEA also requested that PERB seek injunctive relief on its behalf in an effort to keep Proposition B off the June ballot or any future ballot until and unless the City has fulfilled its duty under California’s statewide bargaining law to meet and confer.
In response to MEA’s UPC filing, PERB issued a Complaint, directed that a hearing on the UPC be expedited, and agreed that it was appropriate to seek injunctive relief in the San Diego County Superior Court.
As you may know, City Attorney Jan Goldsmith reacted to PERB’s decisions by making repeated vitriolic attacks on PERB and its General Counsel; he went on the radio and called PERB a “Mickey Mouse Star Chamber.” He said that, as far as he could tell, PERB’s main job was “to sit around and drink coffee with the labor unions.” The Union-Tribune published Goldsmith’s opinion piece decrying PERB’s actions as an unwarranted assault on this constitutionally-protected “citizens’ initiative.” Later, the Union Tribune published its own editorial entitled “State Agency Still Persecuting City.”
On February 21, 2012, San Diego County Superior Court Judge William Dato denied PERB’s request for a temporary restraining order but agreed that the issue of a preliminary injunction against implementation would be heard immediately after the election. Also on February 21, 2012, the “official” ballot proponents (Boling et al.) themselves, through counsel, tried to intervene in the case (and announced their intent to file a challenge to Judge Dato) but Judge Dato set their motion to intervene for April 20th. Frustrated by this “delay,” they filed a new action for damages against PERB, the individual PERB Board Members and PERB’s General Counsel. This “new” case was assigned to Judge Timothy Taylor. The City and the Boling plaintiffs then appeared ex parte before Judge Taylor to ask that he restrain PERB from going forward with its 4-day administrative hearing on MEA’s UPC which Administrative Law Judge Donn Ginoza had noticed for April 2nd through 5th. In connection with this PERB hearing, MEA requested, and ALJ Ginoza issued, a number of subpoenas to compel certain witnesses to testify at the hearing and to produce documents – including Mayor Sanders, Council President Pro Tem Faulconer, and various members of the Mayor’s staff who (like Mayor Sanders) worked on the CPR initiative using City resources and while on City-paid time. Judge Taylor smelled impermissible “judge shopping” and transferred this new case to Judge Dato because it was related to the PERB v. City case already before him. With the transfer of their “related” new case to Judge Dato, the ballot proponents had the opportunity to file their challenge to Judge Dato and they pounced. As a result, both cases (PERB’s injunctive relief case and the Boling Plaintiffs’ damage case) were transferred from Judge Dato to Judge Luis Vargas.
With the PERB hearing set to begin on April 2nd…the subpoenas having been issued and served…and various motions pending before PERB ALJ Ginoza…the City struck again with a new ex parte application before Judge Vargas asking him to order a stay of the PERB hearing and to quash the subpoenas. Ignoring the statutory scheme and PERB’s duty under it, the City argued that PERB had an “obvious bias” against it since PERB had sought injunctive relief pursuant to its statutory authority and that PERB allegedly could not provide the City with a fair hearing on MEA’s UPC. The City also argued that, by having sought injunctive relief in the Superior Court in the first place, PERB and MEA had “waived” PERB’s initial jurisdiction to hear the evidence and decide MEA’s UPC and had instead “consented” to having the Superior Court decide whether or not a violation of the state’s bargaining law had occurred when the City refused to meet and confer over Proposition B.
Having been given only 24 hours’ notice of this ex parte application, both PERB and MEA filed preliminary oppositions and appeared before Judge Vargas on March 23rd to oppose the City’s requested relief. Because the City’s position was so wrong on the facts and law and because the ex parte notice provided PERB and MEA with virtually no opportunity to brief the issues on their merits, it seemed inconceivable that Judge Vargas would grant the City’s ex parte application…BUT HE DID by order issued on March 27th. Judge Vargas gave NO REASONS and NO EXPLANATION of any kind; he simply ordered that the PERB hearing be stayed and the subpoenas be quashed. He set a Status Conference for June 22md when (according to his Order), the stay would be addressed.
On MEA’s behalf, we filed a Petition for Writ of Mandamus with the 4th District Court of Appeal on April 11th to seek the higher court’s extraordinary intervention to undo the harm being done to MEA’s legitimate rights by Judge Vargas’ unlawful order interfering with PERB’s exclusive initial jurisdiction over MEA’s UPC and preventing MEA from having its UPC heard on an expedited basis as PERB had ordered back in February. Although this type of extraordinary Writ is rarely granted (and is typically denied with a single sentence order), MEA agreed with our recommendation to take our best shot because the injustice was so serious and the long term negative implications of such an unlawful order so grave. We also included in the Writ Petition the facts related to Jan Goldsmith’s having gone on the radio to call PERB a “Mickey Mouse Star Chamber,” and to make personal attacks on PERB’s General Counsel in violation of the local rules of court related to professional/ethical conduct. His conduct was foolish, unbecoming to his office, and detrimental to the City.
On April 12th, the 4th DCA directed the City to file an informal response by April 23rd.
On April 23rd, the City filed its informal response. On the same date, the Boling Plaintiffs (ballot proponents) butted in by filing a letter asking the 4th DCA to be treated as “real parties in interest” so they could be heard and they simultaneously filed a full-blown Opposition to MEA’s Writ Petition.
On April 24th, we filed a Reply to the City’s Informal Response – and we filed an opposition to the Boling Plaintiffs’ request (while also addressing their Opposition on the merits just in case the Court was inclined to allow them to be heard).
On April 26th, the City filed a “Sur-Reply” to MEA’s Reply.
On Friday, May 4th, the 4th DCA issued a very favorable order in response to MEA’s Writ Petition. The 4th DCA has ordered the Superior Court to show cause why the relief requested should not be granted. [This really means that the City must show cause why the relief should not be granted.] The 4th DCA is expediting resolution of the Writ on its merits by directing that oral argument be specially calendared by the Clerk as soon as briefing is complete and the Court also wants to treat the matter as already fully briefed based on MEA’s Writ Petition filed on 4/11, City’s informal response filed on April 23rd, and MEA’s Reply filed on April 24th. [The City has until May 11th to object to the 4th DCA’s proposal to treat the briefing as closed based on the filings already before it.]
In addition, the attempt by the ballot initiative proponents (Boling, Zang and Williams), through their counsel, to be treated as real parties in interest and have their opposition to the writ heard and considered was denied. Thus, the 4th DCA has also shut down their attempted meddling in MEA’s Writ proceedings despite their protestations about their Constitutional rights and various provocative assertions about “PERB’s and MEA’s ‘real motives,’” blah, blah, blah.
So…it would appear that the 4th DCA tends to agree with the arguments we made as to why MEA is entitled to proceed to an expedited hearing before PERB on its unfair practice charge and why the City is wrong in asserting that PERB is biased or has lost jurisdiction to decide the unfair practice charge, etc.
The 4th DCA’s Order on MEA’s Writ is a major positive development. It bodes very well for what the 4th DCA is likely thinking with regard to MEA’s rights to proceed to a hearing before PERB – and with regard to PERB’s proper jurisdiction to hear and decide in the first instance whether the City violated the state’s bargaining law when it failed and refused to meet and confer with MEA (despite MEA’s repeated demands) over this CPR Initiative. In fact, each of those refusals to meet and confer came from the City Attorney acting on behalf of the City – and Mayor Sanders contends that he did what he did with regard to this initiative because he was “told it was legal.”
The 4th DCA’s Order represents a major setback for the City and for the Boling ballot proponents.
Remember, this is only one of many legal battles to be fought over this CPR ballot initiative. We will keep fighting…meanwhile, do your part to keep your union strong and keep the faith. Best regards, Ann Smith
[P. S. If you have an appetite for reading legal filings, the actual order from the 4th DCA, MEA’s Writ, the City’s and PERB’s Informal Responses, MEA’s Reply to the City and the City’s Sur-Reply are all attached – as are the filings by the Boling Plaintiffs and MEA’s Response to them!]
MEA Petition for Writ
City Informal Response to Writ
MEA’s Response to Boling et al
Order re Writ
Interested Party (Boling) Opposition
Interested Party (Boling) Request to Join
MEA Reply to City Ltr re Writ
MEA v City – Sur-reply to MEA Reply
PERB Informal Response to MEA Writ