The bonds use money paid to lease the facilities they build to pay off construction and financing costs. The Chargers would presumably be expected to be the main payer of lease fees to the city-county consortium that Mayor Kevin Faulconer and county Supervisor Ron Roberts hope will build the new stadium and keep the team from heading to a stadium proposed for Carson in southwest Los Angeles County.

But the Fourth District Court of Appeal has ruled that using such bonds for a stadium is legal under state law — a ruling the city quickly relayed to the NFL and to other team owners who have been skeptical San Diego has the wherewithal to build a modern football stadium. The ruling upheld the state trial-court’s decision from a year ago.

The Union-Tribune noted that the ruling …

… may alleviate one of several concerns league officials raised in a Nov. 10 letter to the city’s lead stadium negotiator.

 

City negotiators have been working directly with the NFL since June, when the Chargers terminated stadium talks as the NFL considers whether the Chargers, St. Louis Rams or Oakland Raiders can move to Los Angeles next year. ….

 

City officials say they are drafting a response letter to the NFL that will include an explanation of last week’s appellate ruling, which City Attorney Jan Goldsmith called a significant victory.

 

“Whether you like them or not, lease-revenue bonds are a legal way to pay for public infrastructure projects,” Goldsmith said.

 

Critics say lease-revenue bonds, where city buildings and other assets are used as collateral to borrow money, violate the spirit of state law by skirting the two-thirds voter approval that would typically be required to raise such money.

Mayor has repeatedly promised stadium vote

But just because San Diego can issue the bonds with a public vote doesn’t mean city officials are likely to do so.

The Chargers’ popularity in San Diego is at low ebb as another disappointing season plays out. It has become common for fans of visiting teams from across the nation to out-cheer Charger loyalists at Qualcomm Stadium. Meanwhile, Fabiani, a former Clinton White House aide, has emerged as a lightning rod for fan anger over his repeated caustic attacks on Faulconer and other officials who have lobbied the NFL against allowing a money-making team with a loyal fan base to leave for more riches elsewhere.

When Faulconer seeks re-election next year, his handling of stadium negotiations — and his support for using public funds — will be a big issue. The Republican is likely to face a Democrat who is strongly opposed to public funding. He’s also repeatedly said San Diegans “deserve a vote” on a new stadium.

A possible scenario being discussed on sports talk radio was for Faulconer to seek voter blessing of the lease-revenue bonds in a special election with lower turnout. The theory is that using lease-revenue bonds to fund the city’s share of a $1 billion-plus stadium project would be much easier to sell to voters than raising sales taxes, rental-car taxes or hotel taxes, such as other communities have done to help pay for new arenas and stadiums.

Peters is still considered hugely vulnerable. While he was on the San Diego City Council from 2000-2008, the city plunged into a financial crisis over decisions to intentionally underfund pension payments for retirees. This led to national ridicule and the 2005 resignation of Mayor Dick Murphy. Peters’ defensive framing of his behavior during the scandal — blaming his staffers and a media allegedly devoted to inventing scandal — flabbergasted even some of his supporters.

After their huge success in the past three House elections, national GOP operatives have been hunting for a San Diego Republican to take on Peters in 2016 in the belief that the centrist Democrat was one of the relatively few incumbents vulnerable in a national election — one in which Barack Obama would no longer help spike voter turnout among minorities and young whites.

Monday afternoon, it appeared they thought they had their man: a San Diego Republican who stomped Peters in the 2008 primary to be San Diego’s city attorney:

National Republicans are in talks with a potential challenger to California Rep. Scott Peters, whose tossup district makes him a perennial target.

San Diego City Attorney Jan Goldsmith is slated to have a phone conversation soon with Rep. Richard Hudson, R-N.C., recruitment chairman at the National Republican Congressional Committee, according to a source with knowledge of the discussion.

The NRCC doesn’t overtly play in primaries, but an aide there said Goldmith is “a candidate of interest” to run against Peters in the 52nd District. The Democrat was one who got away last cycle, as Republicans picked up seats in the House and Senate across the country.

“He definitely is a candidate whose bio is appealing to us, and somebody we are interested in talking to,” the NRCC aide said when reached by CQ Roll Call.

Within an hour, Goldsmith’s spokesman ridiculed Congressional Quarterly’s report as simply wrong. His language seemed categorical:

He has, “No plans to run. No plans to make plans. If nominated, he will not accept. If elected, he will seek a recount,” said Gerry Braun, communications director for the San Diego City Attorney’s office.

Borrowing from William F. Buckley’s jokes in his 1965 run for mayor for New York City may make some smile, but the national GOP won’t be happy. So their hunt will resume for a good 52nd district candidate.

Unless Goldsmith changes his mind. In 2008, when the state judge, former Poway mayor and former state assemblyman ran for San Diego city attorney, he defeated incumbent Mike Aguirre and Peters in the primary and then trounced Aguirre in the runoff.

After his 32 percent to 20 percent defeat of Peters in a head-to-head election in 2008, Goldsmith may not see Peters as particularly formidable.

Proposition 26 requires politicians to meet the same vote requirements to pass these Hidden Taxes as they must to raise other taxes, protecting California taxpayers and consumers by requiring these Hidden Taxes to be passed by a two-thirds vote of the Legislature and, at the local level, by public vote.

But this hasn’t stopped California politicians from attempting to get around its restrictions. In San Diego, authorities seeking to fund a costly expansion of the convention center so it could continue to attract Comic Con came up with a novel approach raising hotel room taxes in tiers based on how close they were to the convention center. It won approval from a trial court judge.

San Diego leaders were warned plan was risky

Then it ran into an appellate court that understood that Prop 26 was intended to thwart maneuvers just such as this. Here is the KPBS account:

The Fourth District Court of Appeals overturned a 2013 ruling by Superior Court Judge Ronald Prager that approved a hotel room tax to be used to finance the $520-million expansion. That tax was voted on by hoteliers, not by voters.

A state law [actually, the California Constitution] says increasing taxes requires approval by two thirds of voters.

San Diego city officials tried to get around that requirement by forming a district of hotel owners who voted instead, saying the vote was only required by the people who own the land on which the hotels sit. 

They did so despite an explicit warning from San Diego City Attorney Jan Goldsmith that the strategy was legally risky.

Today, city leaders will try to figure out what to do next. They missed the deadline to put the matter before voters in November, which is what Goldsmith recommended in the first place. Voters aren’t nearly as hostile to taxes on visitors as they are to taxes they pay directly, so that’s still the logical approach.

Goldsmith is now warning city leaders that an appeal to the state Supreme Court is a long shot.

I think he’ll be heeded this time around.

Prop 26 has teeth!

On April 30, the court chose not to hear an appeal of an appellate court ruling upholding the city of San Diego’s 2011 deal rolling back retirement health benefits for city workers. San Diego City Attorney Jan Goldsmith had argued that while pension benefits for public employees are constitutionally protected, retirement health benefits could be reduced or rescinded because they amounted to a bequest from an employer to an employee.

As Goldsmith noted, the state Supreme Court’s action locks in the appellate court’s decision as a precedent for California. The decision found that retirement health care amounted to “additional benefits that are provided at the option of the City.” It held that existing law “does not mandate that these benefits be included in the City’s retirement system.”

Retirement health care benefits can be provided to workers using language that makes them a vested (guaranteed) right. Last September, a Los Angeles Superior Court judge rejected a freeze on retirement health benefits for Los Angeles city attorneys. Doug Rose, president of the California State Association of County Retirement Systems, told Governing.com that the benefit was found to be vested “because of the way it was written. It stated the premium subsidy [OPEB benefit] ‘will’ be provided. So it was unequivocal.”

Most retiree health benefits can be reduced or rescinded

But in general, the retiree health benefits provided by local governments are of the sort adopted by San Diego, provided by the employer after collective bargaining without any explicit or implied promise of permanence.

San Diego’s 2011 deal is forecast to save the city $714 million over 25 years; it reduces but doesn’t end health care benefits for current city employees when they retire. Since virtually every local government doesn’t prefund retiree health benefits, all that have the typical contracts with their unions could reduce their unfunded liabilities with a San Diego-type deal or by dropping health care as a retirement benefit entirely.

Gov. Jerry Brown’s 2011 statement of his goals for what would become his 2012 pension reform legislation included a provision on retiree health benefits that appears to encourage the more drastic approach — including for the state government.

“Contrary to current practice, rules requiring all [state] retirees to look to Medicare to the fullest extent possible when they become eligible will be fully enforced,” Brown wrote. “Local governments should make similar changes.”

It’s unclear if the rules for state retirees are enforced more now than in 2011. The website for the California State Retirees organization gives no indication of significant change.

Still, it’s noteworthy that the Democratic governor doesn’t give any credence to the argument from public employee unions that ending or reducing their retiree health benefits is part of a greater scheme to harm government employees.

A source close to Filner tells me rumors that he will resign today are untrue.

— Craig Gustafson (@gustafsoncraig) August 12, 2013

Late morning on Monday, a rumor swept San Diego political and journalistic circles that Mayor Bob Filner was on the verge of resignation. Weekend reports that Filner’s security detail had been deposed at length about what they witnessed while at the accused sexual harasser’s side seemed to be one more nail in his coffin. The rumor was later shot down.

It got me to thinking about the other career-threatening scandal that Filner now faces: a federal probe of whether he traded approval of a San Diego project for a developer’s giving $100,000 to two of his pet causes. It’s not bribery, and it may not be extortion, but it’s plainly against settled law that a government permit cannot be dependent on circumstances unrelated to the permit.

In an interview, incredibly enough, Filner laid out his view of the permitting process as this: “You don’t get free things.”

Why give away your only bargaining chip?

It seems awfully likely that this is also his exact view of the calls for him to resign from all nine San Diego City Council members, Sens. Feinstein and Boxer, and many San Diegans: “You don’t get free things.”

Like Anthony Weiner, who lectures reporters for focusing on his perversions, Filner is plainly kind of delusional. But he has always been absolutely brazen and contemptuous of behavorial norms. So what if a “normal” politician would quit rather than take a city through an ugly, not-sure-to-succeed recall process. So what if a “normal” politician would have been embarrassed into instant retirement when a 10th sexual-harassment accuser came forward.

That’s not what Filner will do. He will extract every last concession he can from the San Diego County Sheriff’s Department, state Attorney General Kamala Harris (handling the investigation for recused DA Bonnie Dumanis, who ran against Filner for mayor), City Attorney Jan Goldsmith and the Justice Department/FBI. And maybe then he will quit.

But Filner won’t leave quietly. “You don’t get free things.”

Another theory is plausible, as I wrote over the weekend.

“Filner is so off the chart weird and different that no one should assume he will think conventionally. … He doesn’t see anything wrong with hitting on rape victims. Why would anyone assume his motivations are conventional when he displays industrial-strength depravity and thinks it’s just another day at the office?”

But the more I think about Filner’s options and his personality, the more I’m confident we’ll see the “you don’t get free things” attitude from the mayor.

Ant that’s no matter what his lawyers say — he’s 70, and I see no evidence he’s deferred to anyone his entire political career.

By Chris Reed

The bullying behavior that has characterized Bob Filner his entire political career has taken on a new and uglier tone since the 20-year Democratic congressman was elected mayor of San Diego in November. He’s ostracized City Attorney Jan Goldsmith for Goldsmith’s attempts to get him to follow the law, including the spectacle of him trying to get Goldsmith’s top deputy fired for daring to disagree with him on a legal question. (Filner is not a lawyer.) Now according to a TV report, the mayor is using his official powers to bully a developer:

“SAN DIEGO – San Diego Mayor Bob Filner says money the city received from a developer was a ‘donation,’ but it was not the reason why he flip-flopped on his veto of the project.

“‘We asked them, and they volunteered to contribute to certain projects that mean something to the city, and so we think that they understood that they have to give back and not just take and that was the whole purpose of the veto to begin with,'” Filner told 10News reporter Allison Ash.

“Filner was opposed to city council’s decision to grant the apartment complex in Kearny Mesa an extra 9-foot easement. Last week, his chief of staff told council there was no compensation for the easement.

“‘Money exchanges hands and then he goes away from his veto,’ said Councilman Scott Sherman, who takes issue with the tactics being used by the mayor. ‘If it was really a shake-down of a developer, then I don’t really care where the shake-down money goes for or what the purpose is. It seems to me that things could be worked between the city and the developer in a much more business-like fashion than threats.'”

Mayor on city permits: ‘You don’t get free things’

Sherman makes a key point. A government’s role should be ministerial. But Filner doesn’t agree, according to 10 News San Diego:

“When Filner was asked whether he was extorting money from developers, this is what he said: ‘That’s a ridiculous word. What we’re trying to do is make sure that people that get things from the city understand that they also have to give things back. You don’t get free things.’

“City Hall insiders say the two checks totaling $100,000 will go to Filner’s pet projects, including bike paths and veterans’ issues.  When asked about whether the donations passed the ‘smell test,’ Filner mentioned one such project.

“‘I think the veterans who are going to look at a new monument to their sacrifices smell it a little differently,’ Filner responded.”

It may not be extortion, but it sure isn’t kosher

But is this OK? Jan Goldsmith has his doubts.

“The City Attorney issued a memo on the issue in part it reads, ‘If the $100,000 was consideration for interests in real property—the easements, both the San Diego Charter and the San Diego Municipal Code set forth various requirements regarding the sale of City property, which have not been met at this time. If the $100,000 was a donation, the funds may be deposited into the General Fund.’

No one should expect Filner to stop doing things like this. He is so wrapped up in the idea that he is a good guy crusading for justice that he doesn’t think laws or ethical standards matter. That he thinks he’s noble while being such a relentless bully should be a cover story someday in the American Journal of Aberrant Behavior.

By Chris Reed

It doesn’t take long before the L.A. Times’ profile of new San Diego Mayor Bob Filner in Sunday’s paper makes it clear that we’re in for a piece that poses as a warts-and-all portrait but is more akin to hagiography. I know and like the reporter who wrote the piece, Tony Perry, who is an outstanding war correspondent when he’s not covering San Diego. But I’m surprised that Perry largely buys Filner’s narrative that he’s a well-meaning liberal trying to shake up a backwards city, and that if he’s brusque and a bully, it’s always for the greater good.

This is a good angle with a powerful hook. But the narrative is fundamentally wrong. Under Republican Mayor Jerry Sanders and with an increasingly pragmatic Democratic-majority City Council, San Diego has made great strides since 2005. It’s in much better shape than most big cities in California. Perry doesn’t mention this until late in the story after first giving Filner room to insinuate the city is in the hands of a corrupt elite.

San Diego also has been an innovator in public-employee benefits reform and making government more efficient, with both efforts endorsed by voters. Perry doesn’t mention that Filner has made clear he will sandbag the push for efficiency — i.e., smaller government. Is this what a heroic populist does? Defy the electorate?

Cherry-picking to serve the Noble Filner narrative

But the problems with the profile don’t end with its failure to challenge the false premise of Filner’s narrative. There is lots of cherry-picking of facts to serve the narrative.

Starting with the lede:

“SAN DIEGO — Under a pro-business Republican mayor, it was a no-brainer: allocating millions of dollars each year to buy national advertising for the tourism industry — a major economic driver in this vacation mecca.

“Then Bob Filner got elected, and he had questions: Why couldn’t Sheraton and Hilton buy their own advertising? And why should the cash-strapped city lavish funds on an industry that pays low wages to bottom-rung employees like maids and bellhops?”

The problem with this is the policy wasn’t driven by the “pro-business Republican mayor.” It’s been a bipartisan policy embraced by the San Diego City Council, which has a Democratic majority. The story goes on …

“The new Democratic mayor also thought the city attorney should provide him with legal guidance on the matter in private, not in front of reporters.

“So he crashed Jan Goldsmith’s news conference.

“‘You not only have been unprofessional but unethical,’ Filner scolded the city attorney, ‘and I resent it greatly that you’re giving your advice to the press.'”

Just who was ‘unprofessional’?

The problem with this is that Goldsmith is elected, not a mayoral appointee, and unless the issue is a sensitive legal negotiation over personnel, contracts or real estate, he has an obligation to talk to the media about pressing city issues. He is the attorney for the city of San Diego — not the attorney for the mayor of San Diego. If the article had brought up that point, Goldsmith becomes the good guy — and it’s obvious who’s being “unprofessional.” But no — we’re following Filner’s narrative.

However, here is where the profile goes most off the tracks:

“Confrontation has long been a Filner political trademark. At congressional hearings he regularly derided Veterans Affairs officials over poor care, making him a favorite of veterans groups.”

So we are reading a long piece about the abrasive liberal who is trying to force constructive (allegedly) change down the throat of a resistent city, and we look back at his actions on behalf of a key constituency during his 20 years in Congress. So isn’t the most important takeaway here that Filner’s badgering of the VA accomplished nothing? That the VA he so challenged and derided is the most criticized federal agency of all? That his management style did nothing to stop a disliked agency from becoming a pariah agency?

If you’re writing a piece about a mayor struggling to get his way with the leadership style he used as a congressman, of course.

And if you’re writing about Filner’s political history, isn’t it worth at least mentioning in passing that perhaps the most memorable fact about Filner’s 20 years in Congress was his channeling of hundreds of thousands of dollars in campaign finances to his family bank account by using his then-wife as his paid campaign treasurer? Well, no — not if you’re treating Filner’s narrative about his nobility as an accurate framework.

A civil rights hero on another crusade? Or an ineffective bully?

I think the reason Filner gets such favorable treatment is obvious in the final third of the article, which repeatedly notes Filner’s work as a courageous civil-rights activist a half-century ago. The implication is that he’s still a courageous champion of the powerless, no matter what he does.

“Filner honed his approach in the 1960s as a Freedom Rider in the segregated South. He spent two months in a Mississippi jail, refusing to pay bail. He knew the Rev. Martin Luther King Jr. and Cesar Chavez and says they taught him that conflict and confrontation are often necessary to accomplish change.

“On one of his congressional websites, Filner posted the mug shot from his arrest in Jackson, Miss.”

But sometimes a bully is just a bully. And sometimes righteousness spoils into obnoxiousness.

“Filner and Goldsmith have sparred over medical marijuana, city pensions, Port Commission appointments, even over whether to allow seals on the beach in La Jolla. Filner unveiled a budget that would cut 13 jobs at the city attorney’s office — more than in any other department — including that of Goldsmith’s top assistant. After several acrimonious meetings, Goldsmith refuses to let any of his staffers meet with the mayor without a witness.”

That’s amazing. And if you heard the stories about Filner’s abusive behavior toward those he considers the “little people” around him, you’d say it’s wise.

There’s also this detail about Filner that is omitted that undercuts the profile’s main narrative: The top assistant of Goldsmith whom Filner targeted is Deputy City Attorney Andrew Jones, an African-American who had the temerity to disagree with the non-lawyer mayor’s legal analysis in a meeting. How does Jones, a soldier turned lawyer, feel about it, according to a published report?

Filner to black city attorney: Go sit in the back of the room

“’He’s (verbally) attacked me in closed session to the extent that at one point he asked if I would sit in the back of the room,’ said Jones, who is black. ‘I, of course, considered it something similar to asking Rosa Parks to sit in the back of the bus. I was extremely offended by it but in deference to my boss I decided not to make a big deal out of it. But clearly he has a problem with me. I’m not sure why.'”

But as the profile wraps up, it seeks to leave no doubt that that’s not the real Filner. The real Filner? He plays civil rights anthems! Oh, the humanity.

“One recent night, radio station KPRI-FM invited Filner in as a guest disc jockey.

“Among his selections was ‘We Shall Overcome,’ by Mahalia Jackson. Filner recalled being arrested in Jackson, Miss., and summoned to meet the police chief; he thought he might be in for a beating, or worse.

“‘As I was walking to his office, I heard in the back all my fellow Freedom Riders singing “We Shall Overcome,” and it gave me courage to face that police chief,’ he said. ‘It was the music, it was the music, that gave me the courage to keep going.'”

All you can do is groan. How long is Bob Filner going to get away with current behavior because of past performance? Maybe forever.

Or maybe just until someone with a smartphone catches him savaging an underling who gets in his line of fire. Then we’ll finally have our overdue “have you no decency, sir?” minute in San Diego.

By Chris Reed

San Diegans had an extremely unusual choice for mayor Tuesday, picking between a gay libertarian who’d already turned the city into a hotbed of government experimentation and a 20-year congressman who is a ’60s-ethos liberal with serious anger-management issues. The contrast between City Councilman Carl DeMaio and Rep. Bob Filner was so unusual that it even got prominent play in The New York Times.

Fueled by hundreds of thousands of dollars in union-paid attack ads and a hypocritical strategy that sought to remind voters DeMaio was gay, Filner pulled off a 51.5 percent to 48.5 percent win.

With less than four weeks until he takes office, the question for Filner is whether he will try to fight implementation of aggressive reforms approved by San Diego’s voters or whether he will betray voters by working with unions and the union-controlled state Public Employment Relations Board in trying to sandbag those reforms.

The first of those reforms is Proposition C, approved in a landslide by San Diego voters in 2006. It was intended to cut the cost of providing city services through a “managed competition” process in which private companies bid against groups of city employees for city contracts.

After four years of stalling by public employee unions in negotiations with the city as well as stall tactics by a City Council whose Democratic majority had strong union ties, “managed competition” was finally implemented.  The four “competitions” to date have all been won by city employees, to the surprise of some. But the savings have been substantial, and are expected to reach tens of millions of dollars annually in coming years.

Under Mayor Jerry Sanders, the city has been moving steadily toward the biggest “managed comp” implementation of all, in trash collection.

Defined-benefit pensions no more?

The second reform is Proposition B, approved this June by San Diego voters in another landslide.

It seeks to impose a six-year freeze on “pensionable pay” — the types of compensation that are added up to calculate pensions. It will end defined-benefit pensions for new city employees, except for police, and give them a 401(k)-style defined-investment retirement benefit.

This is the measure that PERB, in an extraordinary move, tried to kill before it even reached the ballot. The agency makes the bizarre argument that, because DeMaio, Sanders and other city leaders led the push for the ballot petitions for Measure B, it amounted to an illegal attempt to circumvent mandatory collective bargaining on job conditions. (San Diego City Attorney Jan Goldsmith, who is fighting PERB, so far successfully, captures the absurdity of the PERB stand well here.)

Filner has said he will honor voters’ wishes on these measures. But he has long criticized both, and it would be easy to see him saying he had changed his mind.

So is the DeMaio-driven libertarian dream of increasingly privatized city services and private sector-level government compensation still alive in San Diego?

To a considerable degree, it appears to be up to Filner. If he follows through with managed competition on trash — which has potential savings of hundreds of millions of dollars in coming years — Filner may learn to appreciate the process. The extra money could pave a lot of roads in a city where even busy boulevards in rich areas like Camino del Norte in Rancho Bernardo are pothole-strewn.

The stark choice for a true-left pol

But to the extent that the left sees privatization as a bogeyman akin to outsourcing, it’s hard to imagine Filner accepting a trash-service bidding process that led to hundreds of city workers getting axed. Sooner or later, an outside bidder is going to win, and trash is likely to draw several serious bids. That would leave Filner with a stark choice.

There is a transactional quality to the enthusiasm that many of California’s elected Democrats show for public employee unions. They know where their bread is buttered. But Filner’s passions, for better and worse, seem real. He sees the world in binary fashion, with little gray. For him to decide to accept, rather than fight, a mass firing of public employees is difficult to imagine. The same may hold for accepting a profound change in public-employee retirement benefits as well.

So much for heeding the voters in America’s eighth-largest city. Libertarians may be left to wonder what might have been. DeMaio would be the next mayor if only one in 66 San Diego voters preferred him to Filner.

One in 66.

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.

By STEVEN GREENHUT

I recently documented how the state’s pro-union attorney general, Kamala Harris, crafted an unfair and dishonest title and summary for a pair of pension reform ballot initiatives submitted to her office, effectively killing the measures.

Then, last week, the government employee unions tried — and almost succeeded — with an even nastier stunt designed to undermine democracy.

In San Diego, unions are fearful of a new pension reform measure supporters call Comprehensive Pension Reform, or CPR, which has qualified for the June ballot. Instead of simply gearing up to fight this political battle, the unions petitioned one of those ridiculous commissions that most Californians have never even heard of, the Public Employment Relations Board, which is unfriendly turf for taxpayers. The union contended that placing the initiative on the ballot amounted to an unfair labor practice, and PERB called for a court injunction to stop the election until it could complete its sham proceedings.

In essence, the unions and this unelected board insist that the people of San Diego have no right to vote on pension reform. This is just the latest reminder of the totalitarian tactics of a public-sector union movement that doesn’t care about anything other than protecting its benefits.

“Never in the history of this state … has there ever been a requirement to meet and confer over a citizens’ initiative placed on the ballot by voter signatures,” San Diego City Attorney Jan Goldsmith said in a toughly worded letter to PERB. Pension reform advocate Carl DeMaio, a San Diego councilman and mayoral candidate, criticized PERB’s assault on Californians’ constitutional rights.

Fortunately, a judge agreed with the city, but expect the unions to head back to court if their campaign against CPR fails.

No Serious Reform

The unions that dominate Sacramento are not about to permit any serious reform, given that real reform — especially in light of frightening new estimates about the scope of unfunded pension liabilities — means that the days of millionaires’ pensions (meaning you would need millions in the bank to receive the lifetime payouts commonly received by recent California government retirees) eventually have to end. Unions don’t mind undermining the public’s right to vote. They don’t care if our taxes go through the roof, and businesses flee the state. They don’t care if services are slashed. They want their money.

Even Gov. Jerry Brown’s modest pension reform proposals are going nowhere in a Democratic-controlled Legislature that continues to promote expanded benefits for public employees, including a recently introduced Public Employees Bill of Rights. That leaves few other choices than a continuing gallop toward the fiscal brink.

While other liberal states, such as Rhode Island, are addressing their pension problems, and some Midwestern states — Wisconsin, Ohio and Indiana — are fighting battles over union power, California does basically nothing. I appreciate the governor’s pension proposals, but he continues to view hefty tax increases as the only real solution to the state’s budget problems. The deficit has shrunk a bit, and Standard & Poor’s pushed up the state’s credit rating a tad, but the fundamentals here have not improved very much.

Where does that leave us?

Economist Allan Meltzer once quipped that “capitalism without failure is like religion without sin. It doesn’t work.” Americans have been witnessing this axiom on a broad scale, as government efforts to prop up industries, bail out the financial sector and protect politically favored private businesses from failure have only prolonged the financial crisis. Without failure, there is no day of reckoning and no effort by the failed party to make the fundamental changes needed to avert future crisis.

No Government Failure

The problem in the public sector is that government never is allowed to fail. There never is a day of reckoning no matter how poorly a government agency may provide its so-called services. Often, the worst agencies are rewarded for their failure with more public dollars. California governments have continually ramped up pension promises, and governments can’t go out of business, so they just keep piling up the debt.

When there’s no money left, officials play games with the numbers or — as Gov. Brown continues to do — make it their main objective to raise taxes.

Since reforms are blocked because of union control, some have proposed wider use of the bankruptcy option so municipalities can reorganize their debt. The main critics of the bankruptcy option are the unions. They know that bankruptcy would enable governments to abrogate unaffordable labor contracts. The public-employee unions championed a bill, signed into law by Brown in October, that makes municipal bankruptcy more cumbersome by forcing localities to seek approval for such actions by additional committees.

Some even see the bankruptcy option as something that should be allowed for states. In January 2011, GOP stalwarts Jeb Bush and Newt Gingrich ignited this debate with a Los Angeles Times op-ed titled, “Better Off Bankrupt.” They argued that an organized bankruptcy process might help states overcome staggering budget deficits. But other conservatives, concerned about the impact of bankruptcy on bond markets, have been campaigning against this idea. They note that the highly publicized bankruptcy of the city of Vallejo ultimately did little to reform its supersized pensions for public employees.

I’m not advocating for bankruptcy per se, but what happens when all other reform options are taken off the table? What happens when the politics of a state won’t allow the reforms necessary to save that state? In other words, what happens when failure is not an option? If the likes of Harris and PERB and the unions continue to get their way, we in California very well may get to see the answer.