Thursday, April 13, 2017
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C.A. Upholds San Diego’s Voter-Approved Pension Overhaul
By KENNETH OFGANG, Staff Writer
City officials have no obligation to meet and confer with union representatives regarding a change in pension benefits if the change is initiated and approved by voters, the Fourth District Court of Appeal has ruled.
Div. One Tuesday annulled a decision by the Public Employment Relations Board, which ordered San Diego officials to rescind 2012’s Proposition B, also known as the Citizens Pension Reform Initiative or CPRI, and to pay lost benefits, plus interest, to affected employees.
Stymied in their efforts by a City Council majority backed by city employee unions and their supporters, advocates of changes in what they termed an unsustainable retirement system collected more than 145,000 signatures to put the measure on the ballot. Among the measure’s high-profile supporters were then-Mayor Jerry Sanders; current Mayor Kevin Faulconer, then president pro tem of the council; and City Attorney Jan Goldsmith.
Measure Challenged
The measure—whose provisions require that all employees hired since its approval be placed in a defined contribution retirement plan, rather than the defined benefit plan traditionally offered by the city—was challenged before PERB by the city’s unions. They said the city violated the Meyers-Milias-Brown Act by failing to meet and confer with them regarding the initiative.
The MMBA governs local government labor relations in California. Its meet-and-confer requirements were held applicable to measures approved by local governing bodies and then by the voters, in People ex re. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591.
No prior published opinion had determined whether Seal Beach applies to citizen initiatives, a question the panel in that case expressly left open. But an administrative law judge hearing the complaints against San Diego concluded that even if it does not apply to such measures generally, Seal Beach should apply in the present case based on the mayor’s statutory role in labor relations and common law agency rules supporting a conclusion that his support for the proposition was rendered in his official capacity.
PERB concurred.
“We agree with the ALJ that, given the Mayor’s authority as the City’s bargaining representative, the City cannot evade its meet-and-confer obligations under the circumstances by claiming he acted as a private citizen,” PERB said in the 2015 opinion by member Eric Banks, a former San Diego union official.
Justice’s Opinion
But Presiding Justice Judith McConnell, writing for the Court of Appeal, said that Seal Beach’s requirement that local entities bargain over ballot measures does not apply to a citizen’s initiative. The court also held that the mayor’s public support and endorsement of Proposition B did not transform the citizen’s initiative into a city-sponsored one.
McConnell noted that the MMBA imposes the meet-and-confer obligations on the “governing body” of the locality. Because the role of the governing body in certifying an initiative measure is purely ministerial, whereas when the governing body itself is placing the measure on the ballot its role is discretionary, the proper interpretation of the statute is that the meet-and-confer requirements apply only in the latter instance, not the former, the presiding justice reasoned.
“[A] city has no obligation under the MMBA to meet and confer before placing a duly qualified citizen-sponsored initiative on the ballot,” McConnell wrote, “because such an initiative does not involve a proposal by the ‘governing body’ nor could produce an agreement regarding such an initiative that the public agency is authorized to make.”
She went on to say that PERB’s determination to treat Proposition B as if it had been initiated by the council, rather than the citizenry, was erroneous. The mayor, she said, had the right to support an initiative in his private capacity; his actions in support of it required no act on the part of the governing body and thus are not attributable to it, McConnell said.
The case is Boling v. Public Employment Relations Board (City of San Diego), 17 S.O.S. 1949.
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