PERB Grants Injunctive Relief To Remove San Diego Pension Reform Measure

San Diego Municipal Employee Association v. City of San Diego (PERB
Injunctive Relief Request No. 615; Unfair Practice Charge No. LA-CE-746-M).

In a historic move, PERB has granted a request for injunctive relief against the City of San Diego (City) to remove a pension reform measure from the June ballot. The ballot measure would switch most new employees to 401(k) plans instead of traditional defined-benefit plans. Under the California Supreme Court’s decision in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 597 (Seal Beach), the City would be required to bargain the ballot measure with affected unions if the City was behind the measure. But no Seal Beach-bargaining occurred because the measure was not drafted by the City, but by a citizen’s group.

However, both San Diego Mayor Jerry Sanders and Councilman Carl DeMaio were two of the measures leading advocates. They characterized their involvement as being in their individual capacities. But their involvement prompted one of the unions to file an unfair practice charge with PERB alleging that since the Mayor and another councilmember were actively involved in advocating for the measure, Seal Beach-bargaining should be required. In essence, the union asserts that when city officials become involved in supporting a citizen’s ballot measure, they necessarily give the effort the imprimatur of government action, and thus Seal Beach-bargaining is required.

On February 10, 2012, PERB issued a complaint against the City alleging that Mayor Jerry Sanders was acting as an “agent” of the City when he helped develop and promote the ballot measure. In addition, the Board GRANTED the union’s request for injunctive relief and directed the Office of the General Counsel to:

“[I]mmediately initiate an action for appropriate injunctive and writ relief in San Diego Superior Court; and expedite administrative proceedings on Unfair Practice Charge No. LA-CE-746-M.”

Comments:

Many of the news reports out of San Diego made it seem like PERB had already issued its decision on this case. To the contrary, PERB has only issued a “complaint.” For those of you not familiar with PERB’s processes, a complaint must be issued whenever a charging party has stated a prima facie case. In making this determination, PERB resolves disputed facts in favor of charging party. So in essence, all PERB is doing when deciding to issue a complaint is asking itself, “If everything in the charge is true, does that state a violation?” Here, PERB obviously answered that question in the affirmative.
The one major difference here is that PERB also GRANTED a request for injunctive relief. Unlike the standard for issuing a complaint, PERB has much more discretion to weigh factual issues in deciding a request for injunctive relief. The standard for injunctive relief requires that there be: 1) reasonable cause to believe an unfair practice occurred; and 2) irreparable harm. Here, PERB obviously found some reason to believe that Mayor Sanders was acting as an agent of the City in his support of the measure.
From reading the various news reports, one concern I have is that PERB has taken the position that individual governing board members are never really acting in their “individual” capacities when they support citizen-driven ballot measures. I presume the argument from PERB will be that everyone knows who Mayor Sanders is and that voters will interpret his support as being sanctioned by the City.
My problem with such a view is that Mayor Sanders is just one person. Even with the other Councilmember that only makes two. In my opinion PERB has a tough sell in arguing that the actions of a minority of a governing body can be imputed to the majority as “official” action. It doesn’t make sense. Now, if a majority of a governing body was actively engaged in a ballot drive that might be a different story. But I don’t see how you can impute the actions of the Mayor to the rest of the City when he specifically says he is speaking only for himself. Either way, this is going to be a fascinating set of events…