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Tuesday, Feb. 17, 2009 | City Attorney Jan Goldsmith has issued a memo that could change how labor disputes are handled and diminish the mayor’s power in labor negotiations, giving the City Council more say in finalizing agreements between the city and labor unions.

The Jan. 26 memo — which city officials said could still be altered — states that when the mayor and a labor union reach a stalemate, the City Council can send the two sides back to the table to consider another proposal. That would mark a change to the previous process, in which council members couldn’t tweak the details, and give them more control over the terms of employee contracts.

There has been much debate about how the impasse proceedings are handled since the city switched to a strong mayor form of government in 2006. Ex-City Attorney Mike Aguirre eventually said the City Council couldn’t alter the mayor’s final offer, but simply had to vote on whether or not to approve the whole thing.

Goldsmith’s memo, if heeded, could change that by giving the City Council the power to change the agreement. It states that instead of approving or rejecting the mayor’s proposed agreement, the council can present “an alternative proposal to resolve the dispute.”

The memo, addressed to the mayor and city council members, says that that the council can’t unilaterally implement an alternative proposal “not presented at the bargaining table.” But it says a majority of council members can vote to return the parties to the bargaining table to discuss the alternate plan. It’s unclear in the memo what would happen after negotiation process is revived, and Goldsmith refused to comment.

The mayor can veto the alternative proposal before returning to negotiations, but the council can override the veto. The memo says the mayor and council members must “use care” in exercising these powers to make sure they “bargain in good faith,” as state law requires.

Such a change in the impasse procedure would likely diminish the mayor’s power during the bargaining process because labor unions could ultimately argue their case for individual changes to the council. Some City Council members and labor leaders have thought the City Council should have the right to make changes to the contracts, so that council members can accept the parts they agree with out of both the mayor’s and unions’ proposals.

On Friday, Goldsmith said he wouldn’t discuss his opinion regarding the council’s role in labor proceedings until after he had talked about the issue in closed session because it was tied to labor negotiations.

“We need to discuss that among the labor negotiators, the City Council and the mayor, before we discuss it (publicly),” said Goldsmith, who said the issue would likely be discussed next week.

He refused to release the memo. “When a lawyer gives advice, it is not public until the client and the lawyer decide to release it,” he said. “We do have a policy of releasing our memorandums of law, so we will eventually release it. There’s nothing secretive about it. But we do need to go through and discuss it first and that’s what we’re going to do.”

Goldsmith was in a City Council meeting Tuesday once voiceofsandiego.org received the memo and couldn’t be reached for comment.

The Jan. 26 memo is not marked as confidential or subject to attorney-client privilege, nor is it marked as a draft. The Mayor’s Office declined to comment on it, saying Goldsmith had indicated it was a draft.

“It’s my understanding that he’s still thinking about a couple of the issues,” said Jay Goldstone, the city’s chief operating officer, who added that he didn’t know which issues were being considered.

The process of labor negotiations is especially high stakes this year because all five city unions are sitting down at the table this year. In addition, the City Council has four new members — three of whom were backed by labor in the election — and the city is facing a stark budget gap for the upcoming fiscal year.

Goldsmith’s memo states that “previous memoranda” from the City Attorney’s Office have indicated that the determination of the city’s “last, best, and final offer” rests with the mayor. However, the memo indicates that the “plain language of the Charter” gives the City Council “ultimate authority” to set employee salaries and approve contracts with employee organizations.

Please contact Rani Gupta directly at rani.gupta@voiceofsandiego.org with your thoughts, ideas, personal stories or tips. Or set the tone of the debate with a letter to the editor.

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