Boling v. Pub. Emp't Relations Bd.

Citation216 Cal.Rptr.3d 757,10 Cal.App.5th 853
Decision Date11 April 2017
Docket NumberD069626,D069630
CourtCalifornia Court of Appeals
Parties Catherine A. BOLING et al., Petitioners, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; City of San Diego et al., Real Parties in Interest. City of San Diego, Petitioner, v. Public Employment Relations Board, Respondent; San Diego Municipal Employees Association et al., Real Parties in Interest.

Lounsbery Ferguson Altona & Peak, Kenneth H. Lounsbery, Escondido, James P. Lough and Alena Shamos Escondido, for Petitioners and Real Parties in Interest Catherine A. Boling, T. J. Zane and Stephen B. Williams in No. D069626 and No. D069630.

Jan I. Goldsmith and Mara Elliott, City Attorneys, Daniel F. Bamberg, Assistant City Attorney, Walter C. Chung and M. Travis Phelps, Deputy City Attorneys, for Petitioner and Real Party in Interest City of San Diego in No. D069630 and No. D069626.

JONES DAY, Gregory G. Katsas, Washington, G. Ryan Snyder, Karen P. Hewittand Brian L. Hazen, San Diego, for San Diego Taxpayers Education Foundation as Amicus Curiae on behalf of Petitioner in No. D069630.

Renne Sloan Holtzman Sakai and Arthur A. Hartinger for League of California Cities as Amicus Curiae on behalf of Petitioner in No. D069630.

Meriem L. Hubbardand Harold E. Johnson, Sacramento, for Pacific Legal Foundation, Howard Jarvis Taxpayers Association and National Tax Limitation Committee as Amici Curiae on behalf of Petitioner in No. D069630.

J. Felix de la Torre, Wendi L. Ross, Sacramento, Mary Weiss, Santa Barbara and Joseph W. Eckhart, for Respondent.

Smith, Steiner, Vanderpool & Wax and Ann M. Smith, for Real Party in Interest San Diego Municipal Employees Association in No. D069626.

Smith, Steiner, Vanderpool & Wax and Fern M. Steiner, San Diego, for Real Party in Interest San Diego City Firefighters Local 145 in No. D069626.

Rothner, Segall and Greenstone, Ellen Greenstone, Pasadena and Connie Hsiao, for Real Party in Interest AFCSME Local 127 in No. D069626.

Law Offices of James J. Cunningham and James J. Cunningham, for Real Party in Interest Deputy City Attorneys Association of San Diego in No. D069626.

McCONNELL, P.J.

In June 2012 the voters of City of San Diego (City) approved a citizen-sponsored initiative, the "Citizens Pension Reform Initiative" (hereafter, CPRI), which adopted a charter amendment mandating changes in the pension plan for certain employees of City of San Diego (City). In the proceedings below, the Public Employment Relations Board (PERB) determined City was obliged to "meet and confer" pursuant to the provisions of the Meyers-Milias-Brown Act (MMBA) (Gov. Code,1 § 3500 et seq. ) over the CPRI before placing it on the ballot and further determined that, because City violated this purported obligation, PERB could order "make whole" remedies that de facto compelled City to disregard the CPRI.

We conclude, for the reasons stated below, that under relevant California law the meet-and-confer obligations under the MMBA have no application when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process, but instead apply only to proposed charter amendments placed on the ballot by the governing body of a charter city. We also conclude that, although it is undisputed that Jerry Sanders (City's Mayor during the relevant period) and others in City's government provided support to the proponents to develop and campaign for the CPRI, PERB erred when it applied agency principles to transform the CPRI from a citizen-sponsored initiative, for which no meet-and-confer obligations exist, into a governing-body-sponsored ballot proposal within the ambit of People ex rel. Seal Beach Police Officers Assn. v . City of Seal Beach (1984) 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145 (Seal Beach ). Accordingly, we hold PERB erred when it concluded City was required to satisfy the concomitant "meet-and-confer" obligations imposed by Seal Beach for governing-body-sponsored charter amendment ballot proposals, and therefore PERB erred when it found Sanders and the San Diego City Council (City Council) committed an unfair labor practice by declining to meet and confer over the CPRI before placing it on the ballot.

IOVERVIEW

The San Diego Municipal Employees Association and other unions representing the prospectively affected employees (Unions) made repeated demands on Sanders and the City Council for City to meet and confer pursuant to the MMBA over the CPRI before placing it on the ballot. (San Diego Municipal Employees Assn. v. Superior Court (2012) 206 Cal.App.4th 1447, 1451-1452, 143 Cal.Rptr.3d 49 (San Diego Municipal Employees ).) However, there was no dispute the proponents of the CPRI had gathered sufficient signatures to qualify the CPRI for the ballot, and the City Council declined Unions' meet-and-confer demands and placed it on the ballot. (Id . at pp. 1452-1453, 143 Cal.Rptr.3d 49.) The citizens of San Diego ultimately voted to approve the CPRI.

Unions filed unfair practice claims with the Public Employment Relations Board (PERB), asserting the rejection by Sanders and the City Council of their meet-and-confer demands constituted an unfair practice under the MMBA. PERB commenced proceedings against City and ultimately ruled City violated the MMBA by refusing to meet and confer over the CPRI before placing it on the June 2012 ballot. PERB ordered, among other remedies, that City in effect refuse to comply with the CPRI. City filed this petition for extraordinary review challenging PERB's conclusion that, because high level officials and other individuals within City's government publicly and privately supported the campaign to adopt the citizen-sponsored charter amendment embodied in the CPRI, City committed an unfair labor practice under the MMBA by placing the CPRI on the ballot without complying with the MMBA's meet-and-confer requirements.

In Seal Beach, supra, 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145, our high court was required to harmonize the provisions of the meet-and-confer requirements of the MMBA with the constitutional grant of power to a "governing body" to place a charter amendment on the ballot that would impact the terms and conditions of employment for employees of that city. The Seal Beach court concluded that, before a governing body may place such a charter amendment on the ballot, it must first comply with the meet-and-confer obligations under the MMBA. (Seal Beach, at pp. 597-601, 205 Cal.Rptr. 794, 685 P.2d 1145.) The Seal Beach court cautioned, however, that the case before it "[did] not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposed by initiative." (Id . at p. 599, fn. 8, 205 Cal.Rptr. 794, 685 P.2d 1145.)

The present proceeding requires that we first determine the issue left open in Seal Beach : does the meet-and-confer requirement apply when the charter amendment is proposed by a citizen-sponsored initiative rather than a governing-body-sponsored ballot proposal? We conclude the meet-and-confer obligations under the MMBA apply only to a proposed charter amendment placed on the ballot by the governing body of a charter city, but has no application when such proposed charter amendment is placed on the ballot by citizen proponents through the initiative process. With that predicate determination, we must then decide whether PERB properly concluded City nevertheless violated its meet-and-confer obligations because the CPRI was not a citizen-sponsored initiative outside of Seal Beach's holding, but was instead a "City"-sponsored ballot proposal within the ambit of Seal Beach . Although several people occupying elected and nonelected positions in City's government did provide support for the CPRI, we conclude PERB erred when it applied agency principles to transform the CPRI into a governing-body-sponsored ballot proposal. Because we conclude that, notwithstanding the support given to the CPRI by Sanders and others, there is no evidence the CPRI was ever approved by City's governing body (the City Council), we hold PERB erred when it concluded City was required to satisfy the concomitant "meet-and-confer" obligations imposed by Seal Beach for governing-body-sponsored charter amendment ballot proposals.

IIFACTUAL AND PROCEDURAL BACKGROUND
A. DeMaio's Pension Reform Proposal

In early November 2010, City Councilmember Carl DeMaio announced his comprehensive plan to reform the City's finances. His wide-ranging plan to reform the City's finances included, among its many proposals, a proposal to replace defined benefit pensions with 401(k)-style plans for newly hired employees.

B. Sanders's Pension Reform Proposal

In late November 2010, Sanders also announced that he would attempt to develop and place a citizen's initiative on the ballot to eliminate traditional pensions for new hires at City and to replace them with a 401(k)-style plan for nonsafety new hires. Sanders believed replacing the old system with the new 401(k)-style plan was necessary to solve what he viewed to be the unsustainable cost to City of the defined benefit pension for City employees.

Sanders, after discussions with various members of his staff, decided to pursue his pension reform proposal as a citizens' initiative, rather than to pursue it by a City Council-sponsored ballot measure. Sanders chose to pursue his pension reform proposal as a citizen-sponsored initiative, rather than a City Council-sponsored ballot proposal, because he did not believe the City Council would put his proposal on the ballot "under any circumstances," and he also believed pursuing a City Council-sponsored ballot proposal (which would also require negotiating with the unions) could require unacceptable compromises to his proposal.2

Sanders held a "kick-off" press conference to announce his intent to pursue his pension reform plans through a private initiative. This event, which was held at City Hall and at which Sanders was...

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