Message from Ann M. Smith: The long struggle for justice by removing Prop B from the City Charter has ended in VICTORY!!!
Dear MEA Members:
I’m finally writing the message we have fought to achieve for nearly ten years. The deadline for the Prop B ballot proponents to appeal the final invalidation judgment handed down by Superior Court Judge Richard Strauss after a bench trial HAS NOW PASSED. There will be no appeal and this invalidation judgment is FINAL and BINDING.
This outcome implements both the letter and the spirit of what the California Supreme Court concluded in August 2018 – that the state’s public sector bargaining law would be severely undermined if the City of San Diego’s purposeful evasion of that law were condoned in this case. As the high court agreed, the City itself was directly involved in making and then implementing a policy decision to eliminate defined benefit pensions for new City employees but sought to avoid the obligation to bargain with its Unions over this major change in employment terms by crafting and promoting a citizens’ initiative. The City’s “citizens initiative” went on the June 2012 ballot as Prop B and the voters approved it — having no idea, of course, about its unlawful origins.
I was empowered to lead this fight on behalf of MEA before PERB, the Court of Appeal (3 times), the California Supreme Court and then back to the Superior Court (2nd time) with the approval of the State Attorney General – with three other City employee unions and their counsel joining the battle (Firefighters Local 145, AFSCME Local 127 and Deputy City Attorneys Association) and fighting with us from start to finish. Your commitment as union members to what was at stake made this fight possible.
What Did We Achieve?
In truth, we achieved all of our goals. First, we protected effective collective bargaining in California’s public sector; second, we enforced the proper role of the Public Employment Relations Board (“PERB”) to ensure those bargaining rights are implemented uniformly throughout he state. In fact, former City Attorney Jan Goldsmith — whose legal advice led the City down this disastrous and expensive path — had publicly dismissed PERB as a “kangaroo court” and promised victory once a “real court” took charge of the matter. But one of those “real courts” – the California Supreme Court – rejected this disparaging notion, holding that PERB is the expert labor relations agency whose interpretation of the state’s collective bargaining laws deserves deference and whose findings of fact during administrative proceedings are conclusive when supported by substantial evidence.
And we achieved our final goal for City of San Diego employees: invalidation of these Prop B charter amendments in order to restore to thousands of current and future City employees the opportunity for greater financial security in retirement which comes with a defined benefit pension. This final goal will not only benefit employees, it will reinstate the City as a public sector employer offering a defined benefit pension plan. After all, one of the misguided theories of the City’s unlawful conduct was that the City would be the first of many public sector employers in California to eliminate defined benefit pensions. But this, of course, did NOT happen and the City has distinguished itself negatively by being the ONLY public entity which does not offer a defined benefit pension. The invalidation of Prop B will make the City a more competitive employer — if the City also improves employee compensation — and those with experience in the public sector will have a renewed interest in lateral transfers to the City because defined benefit pension reciprocity will once again be available.
Look no further than your own Union and this hard-fought, long-sought victory to answer the question: do working people have more power when they pool their resources to take collective action through their Union? You bet they do!
What’s Next:
- Legislative Action By City Council. The City must take legislative action by Ordinance to comply with the Court’s judgment in order to restore all terms and conditions of employment to what they were BEFORE July 20, 2012 when the Prop B charter amendments took effect. This legislative action will be needed to allow newly hired employees to be enrolled in the SDCERS defined benefit pension plan at the time of hire. This action will also allow the City and the Unions to determine how, when and under what terms to move current active employees into the SDCERS defined benefit plan. The text of this Ordinance must meet with MEA’s approval to assure compliance with the Judgment and PERB’s Court-approved Decision.
- “Make-Whole” Bargaining. The City and MEA (as well as the other affected Unions) must begin the meet and confer process to negotiate all aspects of PERB’s court-approved “make whole” remedy designed to restore the status quo ante – meaning to put all affected employees in the position they would have been in had the City not implemented the Prop B charter amendments in violation of the law – and add 7% interest to this amount. As is the case for every PERB matter where a “make-whole” remedy is ordered and approved by the courts, the City is entitled to off-set against what it owes the amount it has paid for the substitute 401(k)-style retirement plan (SPSP-H) which the City has provided affected employees. Needless to say, there are a number of complexities involved in this determination but MEA will persist in its efforts to gain full compliance at the earliest achievable date – and PERB itself will be overseeing these efforts to assure that there are no unreasonable delays on the City’s part.
So, there is much more remaining to do but TODAY, take a few minutes to pat each other on the back and acknowledge that most people never believed this day would come or that this INVALIDATION JUDGMENT would be achieved. In fact, I’m willing to say that there may have been hours, days, weeks or even months since we began this fight in 2011 when only two people believed it – me and MEA General Manager Mike Zucchet who read and critiqued every brief and brainstormed over every oral argument! Only he can say if, at times, he too had his doubts but kept them to himself!
I hereby proclaim April 12, 2021 to be the OFFICIAL CELEBRATION of THIS PROP B INVALIDATION VICTORY in the City of San Diego!
More updates will follow as events unfold.
My best to all, Ann Smith
Ann M. Smith, Esq.