Last week, a three-judge panel of the fourth state appellate court district unanimously rejected a 2015 PERB ruling that if upheld would have invalidated a successful 2012 San Diego ballot measure that gave newly hired city employees – except for police officers – 401(k)-style retirement benefits instead of defined-benefit pensions. The measure was meant to dig California’s second-biggest city out of a hole created by two City Council decisions to intentionally underfund the San Diego pension system, leading to a city fiscal crisis so severe that San Diego was dubbed “Enron-by-the-Sea” in 2004 by the New York Times.

PERB’s ruling was based on the view that any pension ballot measure that was promoted by elected city officials – in San Diego’s case, by then-Mayor Jerry Sanders and several City Council members – ran afoul of state requirements that local governments had to negotiate in the standard collective bargaining “meet and confer” process before they could change terms of employment.

This legal argument was tough to square with California’s history. Elected officials frequently have taken the lead in employing direct democracy to adopt new laws or modify existing ones – including those that affect terms of employment for public employees. In 2005, for example, Gov. Arnold Schwarzenegger sought to change teacher tenure rules in a special election. Schwarzenegger couldn’t sell the change to voters, but his attempt to do so was not seen as unlawful or unusual.

The appellate panel agreed with the city of San Diego’s argument that while elected officials helped lobby for the 2012 pension reform measure, it was crafted and placed on the ballot in keeping with standard practices for citizens’ initiatives, with petition committees, signature-gathering campaigns and other normal trappings of direct democracy. The ruling also noted that PERB had tried to use its official powers to block the ballot measure in early 2012 even before it reached the ballot, with the hint that appellate judges saw this decision as a sign of PERB abusing its authority.

PERB wanted collective bargaining to apply retroactively to older laws

PERB’s previous setback in asserting the sweeping powers of collective bargaining laws came in its response to a lawsuit filed in 2011. Parent activists sued the Los Angeles Unified School District for not considering student performance when formally evaluating teachers, as is required by the Stull Act, a far-reaching state education blueprint enacted in 1971.

PERB contended that before teachers were subject to such evaluations, the matter should be collectively bargained – even though the primary law establishing collective bargaining for teachers was approved in 1975, four years after the Stull Act took effect. The agency also held that it should have initial jurisdiction over the case – not state courts.

But Los Angeles Superior Court Judge James C. Chalfant’s 2012 decision categorically rejected PERB’s arguments, saying that LAUSD could not ignore the Stull Act’s requirements, that collective bargaining did not apply retroactively to older state laws and that parent activists were free to use the courts to challenge whether public schools were complying with state laws.

The Stull Act remains an area of contention for California public schools despite Chalfant’s ruling. In September, Contra County Superior Court Judge Barry P. Good rejected a lawsuit that said 13 Northern California school districts were breaking state law by refusing to consider student performance in evaluating teachers.

Good’s 40-page ruling held that the Stull Act’s requirements were not as “clear and unambiguous” as those who filed the lawsuit contended.

Because districting is based on population, not number of citizens, Democrats do better in Sacramento from the get-go then one would expected based on voting on high-profile state props. Our Legislature should be strongly Democratic and thus generally pro-union — not overwhelmingly Democratic and reflexively pro-union.

And on those state props, the Attorney General’s Office works to thwart anti-union ballot measures with dishonest ballot summaries, and the state Public Employment Relations Board targets them with extreme tactics, too. At the local level, unions try to sandbag ballot measures with skulduggery, and the authorities usually look the other way. Direct democracy is the biggest threat to union hegemony, and the California power structure reacts accordingly.

2011 law enables more legal looting

But there’s still more. Leave it to Dan Borenstein of the Contra Costa Times to point out a new way the public is brutalized by the union-favoring California status quo:

“A bill Gov. Jerry Brown signed in 2011 gives labor the right, when negotiations break down, to demand a nonbinding fact-finding inquiry before most local governments can impose terms.

“In theory, a neutral party approved by both sides evaluates competing positions. In practice, the fact-finders, professional mediators and arbitrators, lack objectivity because they cannot alienate unions if they want to receive business elsewhere.

“Consequently, the costly, time-consuming process produces biased findings devoid of common sense that place additional political pressure on elected officials to make concessions they cannot afford.”

Shock: Lawyer does favor for Dem status quo

I don’t assume this is just a failure of a split-the-difference process. It may well be yet another example of the fact that lawyers are a key part of the Democratic Party’s coalition, and that lawyers who do favors for the most powerful part of the Dem coaltion can expect their favors to be “paid forward.”

Dan’s fact-finding doesn’t make one think the “fact finder” he writes about is fair or competent, that’s for sure:

“In Concord last year, attorney Carol Vendrillo concluded that the city, already facing a $5.5 million structural deficit, should raid revenues from a temporary sales tax increase to fund permanent salary and benefit increases of 12.3 percent. 

“Vendrillo ignored that voters had been told the tax money would be used only to protect core services, cover the city’s structural deficit and rebuild badly depleted city reserves.

“She revealed her bias as she warned that ’employees’ expectations, labor peace, and a positive labor/management relationship, while difficult to measure in monetary terms, must weigh heavily in the (City) Council’s response’ to her recommendation.”

Great, just great.

What was that again about Jerry Brown being some sort of genius? He signed this law. It’s on him.

By Katy Grimes

Government employees’ salaries and benefits, and in particular, pensions, are financially unsustainable in California. It is clear that collective bargaining reform is needed. But in a state run by politicians elected largely with the financial support of labor and public employee unions, reform is a dirty word.

SEIU wish list

SEIU negotiations are apparently going swimmingly.  I follow the Service Employees International Union 1000 demands and negotiations closely. The memo below is from the April 15 update:

I want, I need, I want, I want

Salary increases, no furloughs, extra pay for being called bak to work, better vacation benefits… and they’ll probably get it too.

Read all of the negotiating updates HERE

By Chris Reed

California’s dual, incompatible narratives keep rolling along.

On the one hand, we’re supposed to believe the passage of Proposition 30 and Gov. Jerry Brown’s able stewardship have lifted the Golden State out of the doldrums.

On the other hand, there are the actual hard facts.

California’s longest sustained stretch of high unemployment since the Depression continues. We’ve been over than 8 percent for four years in a row. The most recent figures have California at 9.4 percent, among the nation’s worst.

And the state’s finances that Jerry supposedly repaired remain a vast, intractable mess, as two headlines this morning remind us.

Oh, yeah, that budget crisis is no more

First there was this from the L.A. Times:

“SACRAMENTO — Arnold Schwarzenegger persuaded voters nine years ago that if they let him borrow money to cover the budget deficit, California’s financial woes would end for good. A key part of his plan was a new rainy-day fund to insulate the state from further crisis.

“‘It will be a whole new ball game,’ Schwarzenegger said. ‘Trust me.’

“But California was roiled by financial turmoil for years afterward, and today the reserve is empty. With more than $5 billion in bonds left to repay, Gov. Jerry Brown apparently plans to leave it that way.

“The reserve was created without a firm requirement to fill it, and Brown’s proposed budget contains no allocation for the fund. Without a financial cushion, some experts say, California is more vulnerable than many other states to drops in revenue that can lead to social-services cuts or pink slips for teachers.”

Oh, yeah, that state pension fix ended the benefits crisis

Then there was this reminder from Ed Mendel that the state government has a retirement benefits crisis, not just a pension problem, and on a key front the state can’t do anything about it because unions won’t let them — meaning the problem will keep getting worse and worse:

“With pensions presumably shored up by Gov. Brown’s reform and a CalPERS rate hike, will the problem-solving trend spread to what is, by some measures, an even bigger retirement debt: health care promised state workers?

“It was no surprise last week when a Democratic-controlled Senate committee rejected a Republican’s proposal to begin setting aside money to pay for retiree health care promised new state workers, putting a small dent in a $64 billion 30-year debt.

“Labor lobbyists told the committee they do not oppose ‘prefunding’ retiree health care that is now ‘pay as you go.’ This year $1.8 billion is budgeted for annual costs with no money added to invest and yield earnings to reduce long-term costs.

“The labor unions said the funding of retiree health care is a pay issue, possibly affecting the total amount available for salaries, and therefore should be addressed through collective bargaining.”

You follow? The unions won’t let the state act responsibly in dealing with a huge long-term problem involving benefits going to union workers, because anything involving money affects salaries, which must be collectively bargained. This is consistent with the insane view of Jerry Brown’s appointees to the Public Employment Relations Board, which has argued that collective bargaining requirements mean that Los Angeles Unified can’t enforce a 1971 state law mandating that student performance be part of teacher evaluations. Collective bargaining: It’s California’s new Constitution!

Governor’s greatest triumph: Selling a fake narrative

Jerry Brown hasn’t fixed anything. He’s been better than Arnold at getting Dems in the Legislature to acknowledge reality, which is a triumph. But the state government remains a poorly run mess. And the fundamental arc of the California economy remains rotten for poor people and much of the middle class.

The governor’s greatest triumph? It’s somehow persuading much of the media that this factually driven narrative of incompetence and despair is no longer true.

By Chris Reed

In 1999, California Democrats celebrated Gray Davis’ election as governor the previous fall by sending him a slew of legislation they knew that his Republican predecessor, Pete Wilson, would never have approved. Most notoriously, they won Davis’ signature on SB 400, the giveaway of a retroactive 50 percent increase in the pension formula for state employees, triggering copycat “pension spiking” measures at the local government level that are now yielding chaos up and down the Golden State.

In 2011, California Democrats acted in similar fashion after Gov. Jerry Brown replaced Republican Gov. Arnold Schwarzenegger. But their most audacious power play of the year was barely noticed for many months. It involved the state Public Employment Relations Board, a quasi-judicial government agency that acts — or is supposed to act — as a de facto referee in disputes between governing bodies and unions over collective bargaining.

Now PERB has emerged as the leader of a union coalition that wants to throttle direct democracy, to ignore plainly written state laws on teacher performance and to argue that PERB — not the state court system — should interpret state laws when it comes to anything that involves public employees.

How did we get to this extreme state of affairs? Conspiracy devotees will be disappointed. The radicalization of PERB appears to be more a byproduct of the intense feud between the Schwarzenegger administration and the California Nurses Association than a calculated scheme to use an obscure state agency to advance the union agenda so broadly.

Nurses vs. UC, round one

After Schwarzenegger took over as governor in 2003, there is no evidence that PERB suddenly became a hotbed of anti-union fervor. He retained as PERB’s general counsel, and its most powerful official, a Gray Davis appointee named Robert Thompson. But when Thompson and PERB stood up to the California Nurses Association in 2005 and disputed the union’s claim that the Schwarzenegger administration had shown bad faith in contract negotiations,
Thompson and PERB set in motion a chain of events that transformed PERB.

In 2005, administration officials and the University of California balked at CNA demands that UC provide 9,000 union nurses at its five UC medical centers and 10 student health clinics with better benefits than other UC employees. Howard Pripas, then UC’s executive director of labor relations, said nurses also wanted raises of between 10 percent and 19 percent for 2006 after receiving a 13.5 percent average increase in 2005. UC rejected the demands, noting that UC nurses had “low vacancy and turnover rates, a higher than market number of paid holidays and exceptional retirement benefits as compared to key competitors.”

This display of prudent management enraged Rose Ann DeMoro, then as now the executive director of the CNA. She pursued an extreme tactic: organizing a one-day walkout of nurses at all UC health facilities that would put at direct risk the health of thousands of very sick patients.

But after PERB agreed with UC officials that the walkout may be illegal, was contrary to the public interest and short-circuited the collective bargaining process, a Sacramento Superior Court judge issued a temporary restraining order blocking the planned July 21, 2005 job action.

DeMoro said nurses were “outraged that [UC] would go to court to block their democratic right to strike.”

Nurses vs. UC, round two

In 2010, it was back to hardball time. Once again, to gain leverage in a contract fight, the CNA planned a one-day strike by its now-12,000 union nurses at UC medical centers and clinics. Once again, UC stood up to DeMoro, issuing a statement saying that “patient safety should not be leveraged by CNA leadership as a negotiation tactic.” Once again, PERB and state courts sided with UC and blocked the walkout on the grounds that it was an unlawful pressure tactic. PERB also held that the UC system could sue CNA for damages for threatening an unlawful strike.

But when union-allied Jerry Brown took over for Schwarzenegger in January 2011, the nurses’ union said, “Never again.”

On May 2, 2011, the governor appointed M. Suzanne Murphy as PERB’s general counsel. Murphy had served as the CNA’s general counsel in 2006 and 2007 after years working for a law firm and employee advocacy groups affiliated with labor interests. Brown also that day named Anita I. Martinez, a longtime PERB staffer who came to the agency after working for the Agricultural Labor Relations Board in Sacramento and the National Labor Relations Board in San Francisco, as chair of PERB’s governing board.

Attorney A. Eugene Huguenin was also named to PERB’s governing board. Huguenin had a 27-year history with the state’s most powerful union, serving as a consultant to the California Teachers Association from 1973 to 1979 and as CTA staff counsel from 1979 to 2000.

Soon after, when there were two vacancies on the five-member PERB governing board, Huguenin and Martinez formed a governing faction that worked with Murphy in changing PERB from being union-neutral to de facto union partner.

Meanwhile, Brown signed into law in October 2011 a bill that banned PERB from imposing penalties on public employee unions that pursued illegal strikes, immunizing unions from financial consequences for extreme tactics.

From union referee to union enforcer

In Feb. 2012, PERB’s radical change in course first became apparent when the agency for the first time in California history sought to pre-emptively keep a pending ballot measure — a June 2012 San Diego pension reform initiative — from going before voters. Murphy’s argument held that, because elected officials in San Diego were involved in drafting the measure, it amounted to an attempt to circumvent and thus violate union collective bargaining rights — even though the San Diego City Council declined to support the measure and it had been organized by private groups.

This argument, if upheld, arguably would set a precedent under which elected officials could never join in ballot petition campaigns to try to force changes in government policies, because such changes would have affected employees, and thus needed to be collectively bargained.

The unusual argument was eventually rejected, and San Diego voters approved the reform measure in June in a landslide. PERB nonetheless continues its all-out attempt to block the reform from taking effect.

In June 2012, the extent of PERB’s new radicalism was further confirmed when the legal arguments it had made as an intervening party in the case of Jane Doe, et al., vs. John Deasy, et al., finally came into focus. In the case, a group of parents of students in the Los Angeles Unified School District sued Superintendent John Deasy and others over the district’s failure to follow the Stull Act, a 1971 state law that among its many provisions required that teacher evaluations be based at least in part on student performance.

As I noted here last month, PERB argued that collective bargaining rights granted to teachers in 1975 by Brown during his first term as governor trumped the pre-existing state law, and that L.A. Unified had no authority to honor the 1971 state law without first having the issue be subject to collective bargaining.

Parents, butt out of PERB business

But PERB’s unusual arguments did not end there. PERB also asserted that it should have jurisdiction over the issue of Los Angeles’ schools’ compliance with the Stull Act, not the courts, because of its role as arbiter of collective bargaining.

In June, however, Los Angeles Superior Court Judge James C. Chalfant ruled that L.A. Unified had no choice but to honor state law for the simple reason that a collectively bargained agreement that violated state law was not a valid agreement.

But Chalfant also took subtle aim at PERB’s pretzel logic on the jurisdiction question. He noted that PERB had “acknowledged that petitioners” — the parents who sued L.A. Unified — “have no standing to appear at a PERB proceeding.”

In other words, PERB contended that parents who believed state laws involving teachers were being ignored couldn’t go to the courts to complain, because PERB had jurisdiction; but the parents couldn’t go to PERB either, because they weren’t among those eligible to bring a complaint.

So what could aggrieved parents do to force compliance with state law? Practically speaking, nothing but whine and hope someone listened and changed their mind.

Emasculating union obstacles

The parallels with the San Diego ballot measure argument are obvious. If elected officials can’t win policy changes because of union influence over governing bodies, can they use their influence and fundraising acumen to help ballot initiative campaigns to force such changes? Not if PERB gets its way.

So what could aggrieved lawmakers do to force change? Practically speaking, nothing but whine and hope someone listened and changed their mind.

This is the California that the radicals in charge of the state Public Employment Relations Board intend to create.

Thankfully, so far at least, their crusade is not going well.

“Up until the San Diego case, PERB had never lost an injunction case in court,” San Diego City Attorney Jan Goldsmith told me in an email. “Courts defer to quasi-judicial agencies and tend to grant their requests. In this case, PERB lost two injunction motions — one before and one after the election. They then lost their motion for reconsideration. That really is unheard of coming out of a supposed quasi-judicial agency.”

Goldsmith doesn’t believe Murphy, Huguenin or Martinez are likely to change their course. His hope is that Brown fills the two PERB governing board vacancies with responsible people not wedded to the daft idea that collective bargaining rights amount to the dominant principle in the California Constitution.

But would Brown do so, knowing it would cross Murphy’s and Huguenin’s former employers, the powerful unions he counts on in his push for higher taxes?

Maybe the Jerry Brown of myth would do it — the iconoclast with unconventional views and values. But not the Jerry Brown of 2012, who acts as the tax collector for the public employee state.

The courts are protecting us — so far

Yet as long as Superior Court judges keep properly interpreting clearly written state laws and long-established judicial precedents, perhaps Brown’s complicity with the union takeover of PERB won’t matter much.

No man is above the law. So long as state courts continue to hold that collective bargaining is not above state law, ultimately we could be safe from PERB’s perverse crusade.

In one final twist, as it turned out, the California Nurses Association didn’t need new leadership at PERB to allow lethal strikes at UC medical facilities to get its way in contract negotiations. In May 2011, the same month as the PERB shake-up, Brown’s administration and the University of California agreed to give union nurses at UC medical centers and student clinics a minimum 11 percent raise over 26 months. The deal also limited future increases in what nurses pay for their own health coverage and dropped various concessions that UC had initially sought.

CNA boss DeMoro’s triumph was finally realized, thanks to a man she declared in 2009 to be “the most sophisticated politician in the state.”

“Sophisticated” isn’t the word most taxpayers would use to describe Jerry Brown’s CNA giveaway and his stacking of PERB. Instead, a long list of harsh adjectives comes to mind — the mildest of which is heinous.

Reed is an editorial writer for the U-T San Diego newspaper. He can be reached at: chrisreed99@yahoo.com.