This week, the California Supreme Court heard oral arguments in the case about San Diego’s Proposition B, the 2012 citizens’ initiative that ended pensions for the city of San Diego’s new employees, except for police officers. The Municipal Employees Association is arguing that former Mayor Jerry Sanders, who was one of the leaders of the proposition, should have had to meet with city unions before plowing forward with the initiative.
The mayor is the city’s chief labor negotiator and, by law, he has to talk to unions before making a change to employees’ benefits. If he can’t come to a deal, he has ways to impose conditions on them. But Sanders and supporters of the initiative argue Sanders was acting as a private citizen, not the mayor.
The Supreme Court justices didn’t seem too open to that argument. But they did grapple with his First Amendment rights. Also, if they’re planning on invalidating the law, they didn’t ask about how it would be remedied.
Maybe that’s because it’s unimaginable? If the law were thrown out, it would trigger an almost incomprehensible series of consequences.
Facts: There are somewhere around 4,000 employees in the city who were hired after Proposition B passed in 2012. The initiative capped the city’s contribution to their retirements at a 9.2 percent match. But they don’t get Social Security, so the 6.2 percent the city would send to Social Security goes to them. It has been collecting along with the employee pensions in 401(k)-style accounts.
What could happen: The Supreme Court could go so far as to invalidate the law and strip it from the City Charter. Or the justices could say it was illegal and send it back to another court to figure out. They could say the city was wrong but prescribe another remedy, short of invalidating the law.
If they invalidate the law, it is very hard to work through the next steps.
“What happens next is an extremely complicated set of challenges and interests that need to be balanced. The simplest, for instance, is what about employees who are separated from the city and those who do not want a defined benefit pension?” said Michael Zucchet, the general manager of MEA, who is leading the lawsuit.
Would it mean that, somehow, the city would have to enroll these thousands of people into the guaranteed pension system — perhaps clawing from their 401(k) accounts the city’s contributions over the years and what they’ve earned in investments?
Political solutions: Zucchet said one option may be for the city and its unions to sit down and hammer it all out in negotiations. Even that’s hard. If the court does anything short of completely invalidating the law, its components will still be in the City Charter, meaning the city will be prohibited from giving any new employee a pension.
Proponents of the initiative have already started talking about a new initiative, this time leaving out the mayor as the leader of it and avoiding the legal hassle again.
The city had already negotiated pensions to a comparably very low level for MEA employees. Ending the pension system for new ones was not that significant of a change. The initiative, of course, also froze pensionable pay for city employees. And that had an effect on city finances. It had a more profound effect on the city’s political narrative, though. It served as a final chapter of the pension scandal that dogged the city for a decade.
No complex negotiation may be able to have that kind of impact, no matter how much it achieves for policy and finances.
“The voters were expecting something big and understandable to the average taxpayer in San Diego and that is what is Prop. B provided,” said April Boling, a political treasurer who led the city’s own Pension Reform Committee and helped shape Proposition B.
The June 2018 Primary Election Contest
Every election, we play a little game with readers. We set some highly unscientific odds and over-unders and ask for predictions on a handful of races on the ballot.
Whoever scores best wins lunch with the two of us and Sara Libby.
Send your responses to scott@voiceofsandiego.org to each of these questions and we’ll report who won in next week’s Politics Report.
We’re well aware we are unqualified to handicap these races. The numbers we have set don’t mean anything other than as a marker for you to choose over or under.
- District Attorney: Pick over or under: Summer Stephan, 53 percent.
- 49th Congressional District: Pick over or under: Doug Applegate, 13.5 percent.
- 49th Congressional District: Pick both candidates to make the runoff.
- County Supervisor District 4: Pick over or under: Bonnie Dumanis, 37.5 percent.
- County Supervisor District 4: If there is a runoff, which Democrat (or Democrats) will make it? Ken Malbrough, Lori Saldaña, Nathan Fletcher or Omar Passons?
- Sheriff: Pick over or under: Bill Gore, 55 percent.
- County Assessor-Recorder-County Clerk: Pick over or under: Ernest Dronenburg, 53.5 percent.
- San Diego City Council District 2: Pick over or under: Lorie Zapf, 46.5 percent.
- San Diego City Council District 2: Who will make the runoff?
- San Diego City Council District 8: Rank how these three candidates will end up: Antonio Martinez, Vivian Moreno, Christian Ramirez.
- National City Term Limits: Will only Measure B pass? Only Measure C? Or neither measure? (Should both pass, the one with the most votes will prevail.)
- Chula Vista Sales Tax: Pick over or under: Yes, 47.5 percent.
- Tie Breaker: What percent of the vote will Rocky Chavez get in the 49th Congressional District?
Again, send your to scott@voiceofsandiego.org. Good luck!
Our School District Email Tussle: Good News, Bad News
We were in court Friday on our plea to stop the San Diego Unified School District from destroying several years of employee emails. Judge Ronald Styn did not grant the temporary restraining order we were asking for but he did continue the matter, and the district agreed not to delete any of the emails for three weeks.
Quick review: The district last year decided it would begin deleting email after retaining it for one year from when it was sent. Many emails of public officials are considered public records we can have access to.
The district is now arguing it is not deleting anything. It’s just not saving them on a central server or cloud. It will be up to each individual district employee to decide which of their emails is a public record and to set it to archive on their individual machine. If they delete them, they’re gone for good.
Styn asked the district’s lawyer, Mike Sullivan, how the district knows that employees will properly vet their emails and save the ones that should be saved.
“How do we know that under any circumstances?” Sullivan replied. Our lawyer, Felix Tinkov, pointed out how vague and complex some of the guidance was that the district provided employees. Sullivan told the judge they’d be willing to better clarify some of it.
It’s kind of a wild argument: That the district over the last year has prepared every individual employee to vet thousands of emails each for their public records value and set them aside and it was prepared, this week, to delete all the rest and claim that it had preserved all public records.
What’s next: Styn got what was about to happen. He said he would be inclined to deny the temporary restraining order but “the potential harm is huge and the inconvenience to the district is minor” to wait and process the issue. There will be a hearing June 22.
Sullivan and the school district told the judge they did not want us to characterize this as a win — they even suggested to the judge he could consider some kind of gag order. So, to be clear, this was not a win. We did not win.
Lilac Hills Is Back
Lilac Hills Ranch, a proposed development of 1,700 homes in the hills of Valley Center, is preparing for another crack at getting approved by San Diego County.
Next Friday, the project will go before the county’s Planning Commission, a body that can make official recommendations to the Board of Supervisors to greenlight, reject or change a project, but can’t authorize anything on its own.
But this hearing would actually be a precursor to that advisory decision. Lilac Hills already went before the Planning Commission, in 2015.
Memory lane: The Planning Commission recommended its approval, with a handful of proposed changes. The developer eventually abandoned its bid for approval by the Board of Supervisors after Supervisor Bill Horn was forced to recuse himself for conflicts of interest based on property he owns nearby, as revealed in a Voice of San Diego investigation. The developers opted for a ballot measure in 2016 – without incorporating changes recommended by the Planning Commission – which failed pretty convincingly.
Now, the Planning Commission will decide whether the Lilac Hills that’s moving forward is different enough that it needs to get approved by the commission again, or if the old approval still suffices. The project now includes the commission’s recommended changes from 2015.
Ironically, that might put the developers in a position of hoping the commission determines they need another hearing. They’ve re-branded the project “The New Lilac Hills Ranch,” emphasizing the alterations they’ve made since voters rejected it in 2016. If the commission says it can move forward without another hearing, it could make it easy for opponents to argue it hasn’t really changed so much.
But Lilac Hills isn’t the only thing that’s changed since 2015. The Board of Supervisors has undergone changes since then too. At the time, the project couldn’t figure out how to get to three yes votes, once Horn was forced to recuse. Democrat Dave Roberts was seen as a likely no vote, and many thought Supervisor Dianne Jacob was opposed as well, though she has never said so publicly.
Now, though, Roberts has been replaced by Supervisor Kristin Gaspar. She’s also never said where she stands, but is seen as more gettable than Roberts.
And if the process drags beyond November, there will be two other new representatives on the board, too.
One of those could be San Marcos Mayor Jim Desmond, who is running to replace Horn. He told the Union-Tribune editorial board that he supported Lilac Hills Ranch at the time, but only because he didn’t realize the developers had cut corners pushing it forward. The editorial board said that was “baffling.”
Don’t forget to send us your answers to the Elections Contest. Do you have any other tips or feedback? Send them to scott.lewis@voiceofsandiego.org or andrew.keatts@voiceofsandiego.org.