Opponents of San Diego City Councilman Carl DeMaio’s ballot initiative that would dramatically change city contracting and outsourcing rules have seized on what they’ve called the initiative’s hidden repercussion: It would eliminate the city’s 5-year-old living wage rule.

“You have to read between the lines and you have to understand what certain words mean,” said City Councilwoman Donna Frye. “It doesn’t exactly come out and say it.”

At this point, DeMaio isn’t coming out and saying it. By not straightforwardly answering the living wage question, DeMaio might be keeping his opponents from winning a talking point. But one national pro-living wage attorney said any ambiguity as to the initiative’s intent could help his side win a court battle.

The city’s living wage ordinance, passed narrowly after years of debate in 2005, increased salaries and benefits for city contracted workers like janitors, gardeners and security guards above state and federal minimum wages. The city’s rate is up to $11 an hour plus an additional health care allowance, compared to the $8 an hour for the state and $7.25 an hour for the national minimum wages.

DeMaio’s initiative bans the city from requiring a contractor pay its employees more than it would “as an employer under state and federal laws and regulations.”

So that provision eliminates the living wage, right? DeMaio won’t say directly. Asked numerous times if his initiative would purge the living wage, DeMaio wouldn’t answer yes or no — though he indicated it would by comparing the city to the private sector.

“We want to benchmark against the federal and state government which is how the private sector contracts,” DeMaio said. “It’s how a small business contracts. It’s how a working family contracts.”

DeMaio added the lawyers who helped him draft the initiative didn’t discuss impacts on living wage rules.

No other media story on the initiative quotes DeMaio directly on if the initiative bans the living wage.

On KPBS Thursday morning, DeMaio was asked twice if the initiative banned the living wage and he didn’t say.

The normal source for an answer to this question, City Attorney Jan Goldsmith, isn’t talking, either. Goldsmith’s office is analyzing all city propositions and initiatives in advance of November’s election and needs to research the issue.

“Because we haven’t gone through that process, I’m not about to just throw out publicly an interpretation,” Goldsmith said.

But the answer, former City Attorney Mike Aguirre said, isn’t as simple as it might appear. Typically, he said, a city ordinance has the same legal effect as a state law. The living wage ordinance could then be considered equivalent to a state rule on wages.

“In other words, there’s not local law and county law, there’s just laws of the state of California,” Aguirre said. “Within the state there are certain bodies that have the authority within their respective jurisdictions to create law.”

Still, Aguirre said he would have interpreted the initiative as banning the ordinance. Employment attorneys who represent both management and workers in living wage issues agreed with him, saying DeMaio’s intent was transparent.

Adam Karr, an employment attorney with Los Angeles-based firm O’Melveny & Myers, said the initiative would “seem to significantly curtail the application of the living wage ordinance.”

Paul Sonn, a lawyer with New York-based pro-living wage advocacy group the National Employment Law Project, said reading the initiative was enough for him to understand its impacts on the city’s living wage rules.

“It’s clear that its intent is to bar enforcement of San Diego’s living wage ordinance,” Sonn said.

But he didn’t mind that there was some ambiguity. That might allow him an opening in a lawsuit against the city should the initiative pass. He said his organization would consider taking on a case.


Leave a comment

We expect all commenters to be constructive and civil. We reserve the right to delete comments without explanation. You are welcome to flag comments to us. You are welcome to submit an opinion piece for our editors to review.

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.