Jan Goldsmith’s opinion piece, “Jerry Sanders Has a Right to Free Speech, Too,” misrepresents the California Supreme Court’s decision in the Prop. B case. Nothing in the California Supreme Court’s opinion establishing that the city acted unlawfully when putting the Prop. B pension initiative before voters in 2012 without bargaining has any impact on the exercise of free speech rights by any elected official. No attorney, elected or not, should disrespect the integrity of our judicial system by misrepresenting a court’s ruling to foster a political position or excuse prior bad legal advice.
No law degree is needed to understand what our high court concluded and why. The city’s elected mayor is not just an elected official nor is the mayor’s position a legislative one. The city’s mayor serves as the city’s chief executive officer – the person who runs the city as an employer. The City Charter entrusts to the mayor the duty to be the city’s chief labor negotiator and to assure the city’s compliance with the state’s collective bargaining laws. Under these circumstances, the high court held, the mayor can speak all day long about the need for pension reform or other matters affecting policy and budget. But what the mayor can’t do is make a decision to change terms and conditions of employment using a citizens’ initiative to avoid the obligation to bargain with the city’s unions.
The high court devoted pages of its decision to a detailed account of how the city’s former mayor violated state law by what he did, when and where he did it using city resources, and how his staff helped him do it for months before any notice of intent to circulate a citizen’s initiative had even been filed. The high court’s decision is a matter of common sense, and it has no effect whatsoever on the First Amendment rights of the city’s mayor or any other elected official.
The mayor cannot take an oath to do a particular job for the city – as Mayor Jerry Sanders did here – and then claim he has a First Amendment right to refuse to do that job. No rational person would conclude otherwise – and nothing in the settled law as of 2012 relating to the state’s collective bargaining law or to the First Amendment rights of elected legislative officials provided any support for the city’s unlawful conduct in this case. Nothing in the settled law supported the bad legal advice the mayor was given at the time. Nor does settled law provide any support for the city’s continued waste of resources – its own and the courts’ – chasing the lie that our high court has trampled the First Amendment rights of any elected officials.
Ann Smith has represented the San Diego Municipal Employees Association for 33 years. She served as lead counsel in all Proposition B-related proceedings before PERB and the court.