Remember back in 2010 when the local Municipal Employees Association went crying to its state level big brother, Public Employment Relations Board (PERB), about Mayor Jerry Sanders using the power and prestige of his office to inspire and endorse Prop D, the sales tax increase?
No I don’t remember that either, because it did not happen. However, I do recall more recently the Municipal Employees Association asking PERB to bully over 120,000 San Diegans, including Mayor Sanders, by blocking the Comprehensive Pension Reform initiative from getting on the ballot. Last Tuesday, Judge William Dato told Goliath, labor groups and their heavy-handed bureaucrat friends, to back off of little taxpayer David… until after the election.
“It is plainly not a situation where the challenge is going to become moot after the election if the initiative is adopted,” Dato said. “…There is a clear preference toward postelection review.”
See, Judge Dato wants to watch democracy play out like a fun little mini-series on TV, featuring those crazy reforming rascals in San Diego. No doubt the voters will overwhelmingly support Comprehensive Pension Reform. After that entertainment ends, with the June 5 election, he will green light a new season featuring labor lawyers suing to overturn the will of the people.
Revisiting Mayor Sanders’ campaign for Prop D in 2010 is crucial to understanding just how contrived the Municipal Employees outrage is, over Sanders’ involvement with CPR. First, let us consider Craig Gustafson’s report of the current labor contrived controversy in the San Diego Union Tribune:
The labor complaint alleges Sanders created the so-called citizens initiative as a “sham device” to avoid the city’s obligations under the law to negotiate with labor over significant changes to the pension system. The union accused Sanders of using the power and prestige of his office to inspire, write and endorse the initiative.
Huh. I don’t recall labor groups complaining about Sanders using his office in the same way to campaign vigorously for a sales tax increase which would have provided a $500 million Band-Aid for the hemorrhaging public employees’ union pensions.
However, I do recall the most ludicrous “townhall” I have ever attended, on October 18, 2010, at University City High School. It was led by none other than Mayor Sanders. To sell the sales tax increase, he trotted out public officials including the Police Chief, Fire Chief and Chief Operating Officer. Pat Flannery’s observations (as reposted in the San Diego Reader) on the purported budget crisis meeting really capture the horrifyingly embarrassing melodrama that Sanders staged to sell the sales tax increase:
In short, Sanders and his minions are warning San Diegans of the huge slashes in services that are coming to get them to vote for Prop. D, but their real intention is to protect their own pensions.
Police Chief Lansdowne said he would cut 160 sworn police positions, close 2 of 10 divisions, eliminate 36 civilian positions and close the DNA lab. Fire Chief Mainar would add 5 more fire engines to the brownout so that 22% of the fire protection forces would be under the brownout. Five communities will be deprived of 100% of their fire protection — a “blackout,” chortled Mainar, who also talked of lifeguard cuts “that will leave San Diego beaches little better than the coast of Baja.” Mainar declared, “Folks, it’s eventually going to catch up to you; it’s not a matter of IF somebody dies as a result of public safety. It’s a matter of WHEN.”
And on went the scare session as Sanders lackeys warned of cuts in recreation centers, visitor centers, gymnasiums, 24% of library services. There will be 10,000 fewer pothole repairs and 1,400 fewer street light repairs.
Chief Operating Officer Jay Goldstone revealed the purpose of the horripilating evening: “The City Council has placed on the ballot a temporary half-cent sales tax that could generate $102 million. If that passes it could help eliminate the need for some of these potential cuts.”
Basically, without a tax increase, we’re all gonna die!
Was this taxpayer sponsored meeting an egregious abuse of public money and public offices to promote something hyper-political and self-serving? Sure. An amusing charade? Absolutely. Even more amusing that labor unions had no problem with that propaganda session in 2010, but now object to Sanders simply voicing support for CPR in 2012? Why, yes it is.
I wonder how much we the taxpayers had to pay cops for overtime that night in 2010 while they were claiming they had no money left to pay cops overtime.
So Mayor Sanders had his come to Jesus, or at least come to taxpayers moment — after the taxpayers crushed Prop D 62%-38%. Now he is legacy-building. I don’t begrudge him that. He has shown leadership on CPR. His push for a shiny, new City Hall got shot down. However his shiny, new City Library is moving forward. Last week he claimed the San Diego’s structural deficit is gone. After losing 94 lbs, he was featured in January 2012’s Men’s Fitness magazine. Apparently shedding the albatross known as public employee labor unions shrinks not only deficits, but also shrinks mayors too! His campy and retrospective State of the City speech in January drew mixed reviews. However, he killed it just a couple a couple weeks later with his performance at the San Diego Downtown Partnership Installation Ceremony — receiving universal rave reviews.
Now if he completes his mission of getting a new Chargers Stadium built, or sports/entertainment mega-complex (as we are supposed to call it) erected in downtown, then he can leave office with all the glow of a San Diego sunset. This time around, for the sake of his legacy, I just hope someone consults City Attorney Jan Goldsmith before the naming of the Qualcomm or Snapdragon or (fill in the blank) sports entertainment center.
Apples and Oranges:
Any change in the employees’ benefit structure requires a change in the current collectively bargained agreement. As the lead representative for management, the Mayor is not supposed to bypass the negotiation process when attempting to make such a change. On the other hand, he is certainly free to lead the charge on anything that doesn’t affect current labor agreements: A new Charger Stadium, Convention Center, same-sex marriage and yes, even taxes.
If the Mayor was acting as an individual in his support for CPR, not in his official capacity (and especially if he was joined by citizens groups such as Lincoln Club and San Diego County Taxpayers Association) then he has every right to support a ballot initiative the affects employees’ benefits. Per PERB’s very own website, their complaint hinges on a questionable reading of: People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 597 (Seal Beach)
If you get a kick out of such discussions, you can read more here on PERB’s own website:
Ryan, I think Alger was referring to your comparison of Prop. D and CPR. As I’m sure you’re aware, nothing about Prop. D violated the state’s collective bargaining rules.
Ryan Purdy: You make an excellent point.
Here is a working link to my report on that October 2010 “town hall” http://bit.ly/AsoV4m. The Reader’s link has “comma” com instead of “dot” com, which is why it does not work.
I have that entire obscenity, billed as a “town hall” meeting, on video. It was a remarkable never-to-be-forgotten display of raw self-interest by senior city staff, including long-term city employee/retiree Jerry Sanders.
And sitting front and center, the architect of this “special project” PR coup d’état, was Gerry Braun, former U-T “journalist”.
Ryan and Pat,
There is nothing illegal about the Mayor supporting, even in his official capacity, a tax increase or any other issue that does not involve collective bargaining. What he and the two Council Members involved cannot do is to bypass the collective bargaining process by running a ballot measure instead.
Kelly Davis: Two judges have found no evidence of CPR having violated the state’s collective bargaining rules that would bar it from getting on the ballot. Why not let the voters decide?
I am grateful that when I went to write this column, such a detailed and dead-on recap of the “townhall” was available. It is even better that you have it recorded. When it comes to history, there is nothing left of center folks enjoy more than re-writing it.
I updated the link for your post. Thank you.
Kelly Davis and Alger:
Per the link I posted above, there is just one primary difference between what the Mayor is allowed to do with regards to a proposition that involves employees benefits versus a proposition that does not. In the case of Prop D, he could design it in his official capacity as Mayor. In the case of CPR, it has to be done as an individual in conjunction with citizens groups (Lincoln Club and San Diego County Taxpayers Association).
The breach of ethics displayed (by using taxpayer resources for a propaganda session is outside of the purview of Seal Beach Police Officers Assn. v. City of Seal Beach (1984). No, I don’t recall unions being upset by it.
Agreed that using taxpayer resources to promote Prop D crossed the line.
As for the Mayor acting as a private citizen in promoting CPR, I guess the question is how many (if any) e-mails and other communications of support were put out using the name Jerry Sanders and how many were put out using the name Mayor Jerry Sanders. I would opine that even one of the latter is too many.
As for the claim that the neither the Mayor nor Council Members DeMaio and Faulconer had a hand in CRAFTING the measure, I don’t think that passes the smell test.
From last night’s Mayoral debate as reported in the UT:
“DeMaio said he didn’t wait for a mayoral campaign to push for change at City Hall and helped craft a pension reform initiative headed for the June ballot.”
On its face, that sounds like a violation of labor law.
The purpose of the initiative process is to bypass the legislature. It is a constitutional right in California. When it was added to the Constitution in1911, it was called the “first power reserved to the people.”
There has never been a requirement to negotiate the terms of a citizens’ initiative with labor unions. If this was a measure proposed by the city council, yes. But, not a citizens’ initiative. Labor laws don’t trump the Constitution.
I know some folks don’t like this initiative. Make your case against it. But, don’t try to infringe on the constitutional rights of 116,000 citizens who petitioned for this initiative.
Yes, I was at the debate last night and it’s not new information that DeMaio helped craft the pension reform initiative.
Per Seal Beach Police Officers Assn. v. City of Seal Beach the legal questions are:
*Were Sanders, DeMaio and Faulconer acting as individuals or as city officials in helping craft CPR? If they were acting as individuals, there is no problem.
*Even if they were acting in their official city capacity, would it matter as they in no way constituted a majority on the Council.
It is hard to argue that DeMaio was doing this in his official capacity as he has been investing 10s of thousands of his own money to the problem from 2003 to the present, now with CPR.
*Is all this quibbling-over who was acting in what capacity-rendered moot by the fact that citizens groups (Lincoln Club and San Diego County Taxpayers Association) helped lead and in the case of the Lincoln Club, fund the charge?
*Also does it matter that private individuals such as April Boling and Bill Lynch were key in crafting the measure?
*Once a person becomes a public official, is there (by law) no distinction between the individual and his official capacity?
Great article Ryan. My favorite is revisiting some of the old Prop-D scare tactics. Was Fire Chief Mainar accurate declaring that without a sales tax increase, five communities will be deprived of 100% of their fire protection? What about increased brown-outs? All false.
There are so many problems with your assertions. Let’s just take one for example. Are you claiming that while “acting only as individuals” that no City resources or City staff time were used to craft or promote the CPR? If you are, your claim again fails the smell test.
But most importantly, your last * is the key one. A public official cannot get around his/her legal obligation as an elected official just by claiming that he/she is not acting in that capacity. Think of the implications if they could:
1. The Brown Act would be rendered moot. Any elected body could meet in private as long as a majority of them claimed they were only there as “private citizens.”
2. Lobbyists wouldn’t have to report contacts with elected officials if they were only meeting with “private citizens.”
3. Elected officials could take gifts from developers and Union leaders if they accepted them as “private citizens.”
The bottom line is that Sanders, DeMaio and Faulconer made a serious mistake in getting this involved with CPR. I don’t know if a court will consider the mistake serious enough to overturn a vote of the people, but there would have been no doubt if they had just left it up to the Lincoln Club, SDCTA, Boling and Lynch to craft and promote the initiative.
I believe this “Citizen’s Initiative” was really an initiative proposed by two City Council Members and the Mayor (among others). In fact, numerous articles were written about the negotiation between Council Member DeMaio, who had one proposal, and the Mayor and Council Member Faulconer who had another proposal.
The question is “Can elected officials bypass the requirements of their official duties simply by putting, or helping to put, an initiative up for a public vote?” And in this case will that city-wide vote absolve them of their responsibilities under state and federal labor law?
Did you see what City Attorney Jan Goldsmith wrote above, by chance?
I saw the City Attorney’s response and I responded. I even asked a follow-up question. Did you see my question to you about the use of City resources and/or the Mayor using his title to garner support?
A recent post by Barry Jantz…
Pat: Your understanding of the judges’ rulings is wrong. Judge Dato found no legal precedent to issue a temporary restraining order that would remove CPR from the ballot. Legal precedent is that TROs are issued after a measure’s passed. Dato said that both parties should return to court after the election to get a ruling on that matter.
Hud Collins’ lawsuit had nothing to do with collective bargaining. It had to do with CPR and whether it was a rewrite (versus an amendment) of the city charter.
Ryan: The mayor violated no ethics rules in supporting Prop. D. As for CPR, PERB makes a pretty compelling argument in its court filing about official city resources being used to craft and promote CPR. But, ultimately, it’ll be up to a judge to decide.
Thanks for the kind words… and yes I think that is what Chief Mainar was saying.
It was not meant as a taunt of any sort when I asked if you read the City Attorney’s remarks. Both your and my comments were pending in the spam filter, I assume. In any event, I think you and I both have gotten into the weeds here a bit. I recommend reading Barry Jantz’s post. He is a former multi-term elected who knows a thing or two about the topic.
The purpose of an initiative is to bypass the legislative body. The 116,000 citizens who petitioned for this initiative have the constitutional right to have it placed on the ballot. Their right is not conditional once the signatures are certified and the initiative qualifies.
The mayor and a few councilmen who support an initiative have no obligation to meet and confer. The city proposes a measure for the ballot only through a vote of the city council. Had the city council proposed this measure and wanted to place it on the ballot as a proposition, the city would have been required to first meet and confer.
If anyone misused city resources, that would be an issue for the Ethics Commission, but it does not change the fact that 116,000 citizens petitioned for this initiative and have a constitutional right to have it placed on the ballot.
Mr. City Attorney,
As a former and future supporter of yours, I have too much respect for your legal knowledge to get into a debate with you. I do believe, however, that much of your response is a political rather than legal opinion. In any event, I am sure we can agree that, if passed by the voters, the issue will end up in court and a judge will decide whether the people of San Diego have the Constitutional right to overturn state and federal laws.
I am well aware of Barry’s qualification and have the utmost respect for him. However, I do not think that anything he wrote contradicted what I have written.
Thanks for the kind words. No, it was not a political response. Direct Democracy is a subject that I have taught and written about for many years. It is far more important than this initiative.
The issue you cite in your last post is a different issue. It is whether the initiative, if passed, violates state law. I don’t have an opinion on that. And, yes, that will be determined by a court should the initiative pass.
The issue I am addressing is whether the initiative is properly before the voters. Whatever the mayor did or did not do does not affect the constitutional rights of 116,000 petitioners.
Thanks for the discussion. Gotta go.
The point is as Jan Goldsmith has explained it:
“The purpose of an initiative is to bypass the legislative body. The 116,000 citizens who petitioned for this initiative have the constitutional right to have it placed on the ballot. Their right is not conditional once the signatures are certified and the initiative qualifies.”
I think I understand it alright. The unions (using PERB and Hud Collins who is a public union supporter) tried to frustrate the constitutional rights of citizens. That is not good politics. Voters remember threats on polling day.
If the unions have credible arguments against the initiative they should make them directly to the voters before polling day. Perhaps CityBeat can help articulate them.
Right now the message from the unions is “go ahead and vote but we will frustrate your vote after you have cast it “. Threatening the voting public does not work. The best recent example is Prop D.
You said “Two judges have found no evidence of CPR having violated the state’s collective bargaining rules that would bar it from getting on the ballot.” All I’m saying is that Judge Dato’s ruling wasn’t based on the merit of PERB’s complaint, only on the precedent of removing an initiative—any initiative—from the ballot.
Just because voters support an issue doesn’t mean that it’s legal. Or wise. CityBeat’s pointed out problems with CPR and will continue to do so.
That’s exactly the point. And Jan Goldsmith said it best: “Their right is not conditional once the signatures are certified and the initiative qualifies.” No judge has authority to stop a qualified initiative on any grounds.
There could be no precedent for “removing an initiative—any initiative—from the ballot” as you correctly say. No judge has ever gone against the constitution and it was foolish to ask for a TRO.
It was inevitable therefore that the denials of both these judges would be based on the impossibility of granting such a TRO and not on the merit of the complaints.
I probably could have worded it better: “Two judges have found no evidence of CPR having violated the state’s collective bargaining rules that would bar it from getting on the ballot.”
I might have said that two judges could find no evidence of CPR having violated collective bargaining OR ANYTHING ELSE that would bar it from getting on the ballot. That is NOTHING could have done so, for constitutional reasons, which is what I meant.
I suspect you already knew that but wanted to be supportive of the unions. Fair enough.
My comments weren’t intended to be supportive of unions. I was at the hearing and Judge Dato’s ruling had nothing to do with whether or not CPR violates collective bargaining rules. That issue will be taken up after the election. I have a sense that you’re still not going to get it. So, this will be my last attempt to explain it.