This post has been updated.

Let me just say, I think it would be lame for the courts to throw out the pension reform initiative voters passed in 2012 just based on the argument that the mayor took a lead role in framing it and he should have met with employees first.

It does not seem like the kind of offense that should overturn a voter initiative that passed after supporters worked to secure hundreds of thousands of signatures and votes.

But the case does have legs. And we should try to understand why.

One reason I’m skeptical of the legal case against pension reform is Michael Zucchet himself. When the idea to move most new city employees to a defined contribution, 401(k)-style issue was first beginning to take hold, the general manager of the largest city employees union, the Municipal Employees Association, articulated very well to me why he didn’t think it was a big deal: Negotiations had already left new employees with a much-reduced pension.

A 401(k) would not be any worse and might be better.

Now, a year later, “We decided to fight it with everything we had,” he says. That the mayor should have met with his employees before pursuing this initiative was something worth investing everything they could into proving.

Why? He said he knew it was kind of emotional:

As no reasonable person could dispute, employees have been at the table through this entire crisis. We’ve agreed to salary freezes, compensation give-backs, retiree health care savings and we did all that at the bargaining table.

Sanders was never our buddy but we were able to work with him to address real financial challenges. And so, when he went out and said, ‘I’m going to go around you and now I’m going to engage in the politics of the day and I’m going to find some red meat to throw at the electorate,’ we were genuinely offended.

OK, then.

As I mentioned in my piece about some of the city’s legal setbacks, I asked Zucchet to respond to the city attorney’s take on their case.

Here it is:

As you are aware, there are usually several skirmishes in the course of litigation before the overall case is actually tried and ultimately decided. Jan’s characterization that PERB’s failed Prop. B injunctive relief efforts constitutes a big “win” for the city (or as he tries to argue by painstakingly parsing the same essential injunction requests, multiple wins!) smacks of desperation. That’s a little like claiming that the fact that a pitcher didn’t blow a five-run lead in the 9th inning is a major accomplishment. As you might imagine, the bar for injunctive relief pre-election is VERY high and very rarely granted. PERB pursued it because they felt very strongly about the illegality of the initiative and that injunctive relief would have been a righteous outcome, but no one involved inside or outside of the litigation ever thought that the chances were anything but slim that a judge would grant the motions.

After attempting to squeeze out every drop of “victory” from the defeat of PERB’s injunctive relief requests, the city attorney goes on to gloss over the much more significant pre-trial action in this case, which was Jan’s repeated efforts to get the Superior Court, 4th District Court of Appeal and California Supreme Court to stop the PERB hearing from ever happening. The city attorney’s anti-PERB rhetoric was (and still is) almost hysterical, and that hysteria was soundly rejected by the courts. No fair reading of that decision could lead to any conclusion other than a complete and total loss for the city on the city attorney’s main legal and rhetorical points. The courts concluded that PERB was not biased against the city as the city attorney alleged, and ordered the hearing to move forward over the city attorney’s breathless objections because they wanted “the benefit of PERB’s administrative expertise.” The city attorney tried to get the California Supreme Court to stop the PERB proceedings on the same grounds and got shot down once again.

If the PERB Board upholds the ALJ’s decision, the same appellate court will defer to the findings of fact the administrative law judge already made based on the overwhelming evidence of the city’s role in Proposition B. The city attorney had every opportunity to present evidence at that multi-day hearing, and he presented none. Literally … none. We called four days’ worth of witnesses. The city called one witness — a private lawyer who, on direct examination by the deputy city attorney representing the city, claimed that he was the real author of Proposition B. On cross-examination, he acknowledged that actually it was his law partner who did the drafting and if we had any more questions about that we should call him. He was off the stand within 10 minutes and the city rested its case. That was the city’s entire evidentiary case, and the city’s arrogance about the importance of the PERB proceedings ended with a 58-page ruling that painstakingly recounts an overwhelming factual and legal record that the appellate court will defer to as well as, as they have already ruled, “PERB’s administrative expertise.”

Finally, the city attorney’s constant attacks on PERB as a venue where “the rule of law” does not apply is simply the rhetoric of a desperate lawyer that now knows he gave bad advice in this matter. The 4th District Court of Appeal certainly and unequivocally disagreed with the city attorney on that point and the other arguments he put before the court. It is that same court that will likely one day review what happened at PERB and it has already ruled that PERB deserves deference — not contempt — in the interpretation and enforcement of the state’s bargaining laws.

So the bottom line is that if we are trying to count “wins and losses” in the Proposition B proceedings, only a brazen political spin-master could argue that the city has “won” so far. Obviously, the final ruling is likely going to take some time as the case works its way through the courts, but the city has lost — and lost big — on the guts of the challenge so far. There is no spinning that away.

Update: I got a response from Zucchet that I failed to include the second part of his two-part explanation of why his organization had pursued a lawsuit against the city.

He’s right. Since this post is all about his take on the issue, I might as well include more.

Zucchet also made the point that there was a serious issue at stake. If the mayor was allowed to skirt his requirement to meet with employees before imposing terms on them, it would set a very bad precedent, in his perspective.

Here’s what he said to me:

As a matter of law we believe that California collective bargaining law is actually very simple. At the end of the day, the City Council can impose what they’d like but, at first, they have to talk about it. That’s all it requires. This is what happened with managed competition. The city was putting managed comp on the ballot. The unions and city met about it and then they imposed it. We didn’t agree and we opposed it but they followed the law.

And Zucchet elaborates in the comments:

… the entire premise of the MMBA (state law related to bargaining in California) is meet and confer — i.e., under the law management is not forced to do what employees want, but they are forced to at least talk about it in good faith before making a final decision to, for instance, place a measure on the ballot that impacts employees; that we needed to challenge the city’s conduct because, if not, then the entire premise of the MMBA would be weakened; and that we needed to challenge the city’s conduct because otherwise it would become a roadmap for future administrations not only here but across the state to “legally” violate the law.

Finally, I wanted to respond to another comment, this from Shawn Fox, who said:

Mr. Zucchet, it seems awfully hard to believe that no negotiations ever took place. Of course I can understand why you would sue. I wouldn’t expect anything less. The suggestion that no negotiations had been attempted seems totally preposterous!

I don’t believe anyone is arguing that negotiations took place. The city admits the mayor did not meet with the union. The question is whether he had to.

I’m Scott Lewis, the CEO of Voice of San Diego. Please contact me if you’d like at or 619.325.0527 and follow me on Twitter (it’s a blast!):

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Scott Lewis

Scott Lewis oversees Voice of San Diego’s operations, website and daily functions as Editor in Chief. He also writes about local politics, where he frequently...

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