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HomeMy WebLinkAbout03-10-2014 cs-b various (2)Kremke, Kate From: Dave Cox <dcox @barnettcox.com> Sent: Monday, March 10, 2014 7:37 AM To: Marx, Jan Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Administrative Law Judge Decision Thank you, Dave Cox Executive Vice President /COO •0r BARNETT COX & ASSOCIATES 711 Tank Farm Road, Suite 210 San Luis Obispo, CA 93401 805.545.8887 805.788.4424 direct 805.545.0860 fax 805.704.1644 Mobile www.barnettcox.com From: Marx, Jan [mailto Jmarx(d)slocity.org] Sent: Monday, March 10, 2014 7:27 AM To: Dave Cox Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Administrative Law Judge Decision Thank you for your message, Dave. I am including our city clerk staff so that your email is posted on the website and becomes part of the public record. All the Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Dave Cox [dcox @barnettcox.com] Sent: Monday, March 10, 2014 7:22 AM To: Council ALL Subject: Administrative Law Judge Decision To Mayor Marx and Council Members: It was indeed stunning to read that an administrative law judge has overturned Measure B and that Binding Arbitration must be restored. Should this happen, the effects would be broad and devastating. I urge you to direct staff to appeal this decision during your Monday morning closed session. Thank you. Dave Cox Executive Vice President /COO •0r BARNETT COX & ASSOCIATES 711 Tank Farm Road, Suite 210 San Luis Obispo, CA 93401 805.545.8887 805.788.4424 direct 805.545.0860 fax 805.704.1644 Mobile www.barnettcox.com Kremke, Kate From: Marx, Jan Sent: Monday, March 10, 2014 7:28 AM To: Dodie Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Decision re Measure B Thank you for your message, Dodie. I am including our city clerk staff so that your email is posted on the website and becomes part of the public record. All the Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Dodie [bndwms @sbcglobal.net] Sent: Sunday, March 09, 2014 10:43 PM To: Council ALL Subject: Decision re Measure B Honorable Council Members, I, along with many residents, urge the Council to appeal the recent decision made by an administrative judge regarding Measure B, which overturned binding arbitration in our city. Keep in mind that Measure B was passed by nearly 8,000 residents of San Luis Obispo in the August 2011 vote. It was a hotly contested campaign, but it's passage was overwhelming. You voted to place Measures A and B on the 2011 ballot for a reason. That rationale has not changed over the past three years. Please consider your positions as leaders of this community, as well as the oath of office each of you took when you became Council members, i.e., to work for the greater good of the people of San Luis Obispo. You owe it to your constituents to appeal such an ill- conceived decision. Sincerely, Dodie Williams 438 Woodbridge Street San Luis Obispo, CA 544 -5629 Kremke, Kate From: Marx, Jan Sent: Monday, March 10, 2014 7:27 AM To: Mejia, Anthony Cc: Kremke, Kate Subject: FW: Binding Arbitration Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 =2716 From: Bill Thoma [BThoma @thomaelec.com] Sent: Sunday, March 09, 2014 11:01 PM To: Council ALL Subject: Binding Arbitration Dear Mayor and City Council Members, I truly hope you will see clearly the need to appeal this recent decision brought down by the Court regarding overturning of the Voter approved Binding Arbitration Repeal. Please realize how important it is to take this, and fight it, all the way to the mat if need be. You cannot let our City be held hostage to the uncontrolled City Employee unions. Please act to appeal this decision. I will not be able to attend the hearing, but wish for you to know that there is NO WAY that Measure Y can be extended under the circumstances without controls on wages and benefits. If you don't see the link between this and measure Y, you are mistaken. I for one, will for sure not support measure Y, if Binding Arbitration is reinstituted and I don't think I am alone in feeling that way. Best of luck with your deliberations tomorrow. Sincerely, Bill Thoma Kremke, Kate From: Marx, Jan Sent: Monday, March 10, 2014 7:27 AM To: Dave Cox Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Administrative Law Judge Decision Thank you for your message, Dave. I am including our city clerk staff so that your email is posted on the website and becomes part of the public record. All the Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Dave Cox [dcox @barnettcox.com] Sent: Monday, March 10, 2014 7:22 AM To: Council ALL Subject: Administrative Law Judge Decision To Mayor Marx and Council Members: It was indeed stunning to read that an administrative law judge has overturned Measure B and that Binding Arbitration must be restored. Should this happen, the effects would be broad and devastating. I urge you to direct staff to appeal this decision during your Monday morning closed session. Thank you. Dave Cox Executive Vice President /COO •0• BARNETT COX & ASSOCIATES 711 Tank Farm Road, Suite 210 San Luis Obispo, CA 93401 805.545.8887 805.788.4424 direct 805.545.0860 fax 805.704.1644 Mobile www.barnettcox.com Kremke, Kate From: Manx, Jan Sent: Sunday, March 09, 2014 6:54 PM To: Mejia, Anthony; Kremke, Kate Subject: FW: COUNCIL CORRESPONDENCE - PERB DECISION (3/10 closed session) Attachments: 20140308 - RICE - comments - PERB- decision.pdf Agenda correspondence Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Kevin P. Rice [kriceslo @gmail.com] Sent: Sunday, March 09, 2014 5:34 PM To: Council ALL Cc: Dietrick, Christine; Mejia, Anthony Subject: COUNCIL CORRESPONDENCE - PERB DECISION (3/10 closed session) [PUBLIC COUNCIL CORRESPONDENCE] Dear Mayor, Council Members and Staff: My comments on this important matter tomorrow morning are attached as a PDF file. Please contact me if you have any questions or trouble with the attachment. Best regards, Kevin P. Rice (805) 602 -2616 Kevin P. Rice PO Box 14107 San Luis Obispo CA 93406 -4107 (805) 602 -2616 kriceslo�d�mai l.com PUBLIC COUNCIL CORRESPONDENCE [via a -mail] Sunday, 2014 March 9 City Council San Luis Obispo City Hall 990 Palm St San Luis Obispo CA 93401 -3236 council allO),slocit •.or 7 (805) 781 -7114 SUBJECT: PERB DECISION (BINDING ARBITRATION) MARCH 10, 2014 CITY COUNCIL CLOSED SESSION Dear Mayor, Council Members and staff: Will you defend democracy today? THE CITY COUNCIL MUST APPEAL' THE PERB PROPOSED DECISION' Does an administrative board in Sacramento trump the vote of San Luis Obispo's citizens? The PERB Proposed Decision must be overturned. No administrative body has ever overturned a ballot initiative. Our elected representatives have a responsibility to represent the People's interest above all other interests. The voters amended our city's constitution -our charter. An administrative law judge does not have the authority to order amendments to our charter, whether or not Measure B3 was placed on the ballot inappropriately. The PERB Decision amounts to administrative nullification of the will of the electorate (73% "Yes" vote for Measure B) and would turn more than one hundred years of constitutional initiative law on its head. Reasons for appeal follow: ' File a "statement of exceptions" to the Proposed Decision, pursuant to 8 CCR § 32300. 2 San Luis Obispo Police Officers Assoc. v. City of Son Luis Obispo (2011) PERB Case No. LA -CE- 729 -M, Proposed Decision 02/28/2014 (hereinafter, "PERB Decision" or "PERB Opinion "). 3 Measure B, repealing City Charter § 1107, Special Municipal Election, Tuesday, August 30, 2011. - 1 - PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE — COUNCIL CORRESPONDENCE ONLY QUO WARRANTO (NOT PERB) CAN REVERSE MEASURE B The Court of Appeal has held "quo warranto is the only legal mechanism for attacking the legitimacy of a charter-amending initiative alleged to have been placed on the ballot in violation of the Meyers - Milias -Brown Act (MMBA)." (95 Ops.Cal.Atty.Gen. 31, at p. 4 [citing Assn. of Fire Fighters v. City of Oakland, 174 Cal. App. 3d at 693 -698; also City of Fresno v. People ex rel. Fresno Firefighters, 71 Cal. App. 4th at 89].) A quo warranto action is brought in the name of the People of the State of California (e.g., People v. City of San Luis Obispo). It is a public action. Because a quo warranto action is brought in the name of the People, leave to sue in quo warranto must be sought and obtained from the State Attorney General. The parting obtaining leave to sue is termed the "relator ". Neither PERB, nor the San Luis Obispo Police Officers Association (POA), can order the city council to initiate litigation (i.e., quo warranto) against itselfl If a relator such as PERB wishes to challenge the validity of Measure B, that relator must itself obtain leave to sue in quo warranto from the attorney general. CITY COUNCIL HAS NO ABILITY TO COMPLY WITH PERB ORDER A vote of the electorate is required to amend our city charter.4 The city council has no independent authority to make amendments.5 Therefore, PERB's order to rescind Measure B is absurd on its face! It is simply impossible for the city council to comply. PERB's order exceeds its own authority as well as the authority of the council. The remedy is obviously untenable and outright capricious. PERB is ordering the city council to violate law. PERB LACKS AUTHORITY /JURISDICTION TO ENFORCE ITS OWN ORDER Because quo warranto is the only mechanism (aside from a public election) that can attack Measure B, PERB has no authority to enforce its own order. The Attorney General controls quo warranto actions. No matter how significant an interest an individual or entity may have, there is no independent right to sue.b While PERB is entitled to make a determination of a violation, it has no authority to order a remedy that overturns an election. 4 California Constitution, Article XI, Section 3. 5 Ibid. 6 Oakland Municipal Improvement League v. City of Oakland, 23 Cal. App. 3d 165, 170 (1972). -2- PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE — COUNCIL CORRESPONDENCE Moreover, Attorney General consent controls jurisdiction in quo warranto actions. PERB has none. A court may not hear a quo warranto action unless it is brought or authorized by the Attorney General. Because PERB has no authority or jurisdiction to mandate repeal or reversal of Measure B the PERB Decision is fatally flawed. POA COMPLAINT IN OCTOBER 2011 WAS TOO LATE (AFTER ELECTION) The POA filed its unfair practice charge with PERB too late —after the election. The POA admits to becoming aware of renewed city council concerns regarding binding arbitration in January 2011. City Resolution No. 10265 ordering Measure B to be submitted to the voters was adopted on May 17, 2011. The special municipal election was held on Tuesday, August 30, 2011. Yet, the POA neglected to file any charge with PERB until October 17, 2011. Because the POA "sat on its laurels ", any remedy that includes overturning our election should be excluded under the legal doctrines of acquiescence (i.e., "silence is complicity ") and estoppel by laches (i.e., "unreasonable delay in pursuing a claim "). In general, these legal doctrines may be asserted when a defendant is in a worse position now than at the time the claim should have been brought. Delay by the POA in asserting its claim has caused a great increase in the potential damages - overturning a vote of the People versus merely delaying or enjoining the Measure B election before it took place. The PERB Decision fails to consider the POA's failure to appeal its SLO Superior Court case (e.g., acquiescence) and delay in filing its PERB complaint (e.g., laches) when formulating the proposed remedy. THE COURTS HAVE ALREADY SPOKEN: THE ELECTION STANDS The POA's opportunity to stop Measure B has already been denied by the Courts.8 On May 16, 2011, SLO Superior Court Judge Charles Crandall denied the POA's request for a temporary restraining order to stop the Measure B election. The Courts are loathe to overturn a vote of the People —I am not aware of a single case where this has occurred. PERB has no authority to overturn the Measure B election. The Cooper v. Leslie Solt Co., 70 Cal. 2d 627, 633 (1969). e http: / /www.sanluisobispo.com/ 2011 /05/16/ 1603115 /judge- denies -slo- police - union.html -3- PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE — COUNCIL CORRESPONDENCE POA's time to intervene was before the election. The POA attempted to intervene and was denied. Following the denial, the POA dismissed their case instead of appealing. Any remedy should not amend our city charter because the POA did not aggressively pursue their claims prior to the election. The time to stop Measure B has passed. WEIGHING THE RIGHTS & INTERESTS OF THE PARTIES When faced with intractable situations, decision - makers must carefully weigh the harm to each party caused by any proposed remedy. The decision -maker must give consideration to whether either party has "unclean hands" (i.e., participation in some "wrong" that contributed to the outcome). On one hand, the "harm" to the Police Officers Association (POA) is the alleged abridgement of their right to meet and confer. The proposed remedy would repair that harm, but at what cost to the people of San Luis Obispo? Indeed, the proposed remedy would harm fundamental stalwart Constitutional rights that all Americans hold dear, to wit: the right to vote. The remedy proposed in the PERB decision fails to weigh the overwhelming Constitutional rights and interests of the People of San Luis Obispo. PERB appears to believe the council has unclean hands with respect to placing Measure B on the ballot. Yet, the POA likewise has unclean hands in dismissing their own superior court suit before the Measure B election, and in delaying the filing of their PERB complaint until after the election. Again, the proposed remedy fails to weigh these facts. PERB JUDGE ERRED IN HER OPINION Administrative Law Judge Racho erred in her opinion on several issues: 1. Judge Racho grossly torments MMBA section 3509 and other case authorities to educe unprecedented and expansive PERB authority. Government Code, section 3509(b) of the MMBA reads, in pertinent part: [T]he appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of [PERB] ... i! PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE — COUNCIL CORRESPONDENCE Judge Racho grossly misinterprets this statute,9 converting "exclusive jurisdiction" into unlimited authority. Judge Racho seems to believe unlimited authority is granted to PERB by section 350910, even including legislative power to enact regulation and—unbelievably- authority equal to the plenary authority of voters to amend San Luis Obispo's city charter. I 1 Racho goes on, 12 relying upon an opinion of the Fourth District Court of Appeal (DCA): We agree with the trial court that the issues presented in this case —especially the extent to which local regulation of employment matters as prescribed by the charter might be superseded by matters of statewide concern as set out in the EERA —is a matter properly decided in the first instance, by PERB. (Local 21, International Fed. of Prof. and Tech. Engineers, AFL -CIO v. Thornton C. Bunch, Jr. (1995) 40 Cal.App.41h 670, 676.) Several things are wrong with Racho's use of this authority. First, the Fourth DCA is only speaking to the jurisdiction of PERB to decide the extent of a conflict between local regulation and state law. Second, Racho omits the citation to the case the Fourth DCA was relying upon. 13 In that separate case, the Fourth DCA was called to decide whether PERB could enforce administrative subpoenas to compel production of writings of the California Governor. Racho's grossly inflates case authorities recognizing the administrative jurisdiction of PERB. Racho cites no authority that confers upon PERB the authority to rewrite city charter, or even city ordinance. Racho's reasoning continues by citing United Public Employees v. Public Employment Relations Bd. (1989) 213 Cal.App.3d 1119. Again, in this case pertaining to school employees, there was no legislative or charter amendment in dispute, and the Court actually annulled PERB's decision in the same case. 9 PERB Decision, at p. 36 -37. 10 ibid. 11 Cal. Const., Art. XI § 5. 12 Id., at p. 37. 13 PERB v. Superior Court (1993) 13 Cal. App. 4`h 1816. Me PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE — COUNCIL CORRESPONDENCE Finally, Racho sums up her untenable view of PERB authority by revisiting the Fourth DCA opinion, in which Racho claims as follows: [T]he court recognized PERB's "broad remedial powers" under the statutes it administers in answer to the union's question in that case of whether PERB could fashion an effective remedy. (PERB Decision, at p. 37 [citing Professional and Technical Engineers, supra, 40 Cal.App.4`h at p. 679].) Racho's torture of the Fourth DCA opinion in Professional and Technical Engineers (supra) is noxious on a number of grounds. Most importantly, the truncated context Racho supplies in her opinion — "broad remedial powers" —must be compared to what the Fourth DCA actually wrote: PERB possesses "broad" remedial powers enabling it "to take action and make determinations as are necessary to effectuate the policies of' the statutes it administers. (Mt. San Antonio Comm. College Dist. v. PERB (1989) 210 Cal. App. 3d 178, 189 -190.) This case presents no distinct or unusual remedial issues. [Emphasis added.] The Fourth DCA does indeed recognize broad power enabling PERB to take actions and make determinations necessary to "effectuate the policies of the statutes [PERB] administers ", but then follows immediately with, "This case presents no distinct or unusual remedial issues." Certainly, invalidation of a public election qualifies as a distinct and unusual issue! Especially since no administrative body has ever accomplished such an act. Equally informative, is the case cited by the Fourth DCA: Mt. San Antonio Community College District v. PERB (1989) 210 Cal, App, 3d 178, 189 -190. Again, the matters in this college district case challenging a PERB decision relate to administrative issues (i.e. backpay), not profound legislative and precedent setting concerns comparable with overturning an election. Judge Racho's reasoning cannot possibly be harmonized with any rational interpretation of the law and Constitutional rights of the voters. -6- PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE — COUNCIL CORRESPONDENCE 2. Judue Racho cannot order an "affirmative injunction" (reauirina voters to perform a legislative act). It is one thing when a judge 14 finds an ordinance or regulation unconstitutional or otherwise invalid and throws it out (a "negative injunction "). However, Racho has made an order to "Rescind the provisions of Measure B adopted by the City and return to the status quo ... including restoring the provisions of former City Charter section 1107, subdivision (D)." Restoring a former portion of charter section 1107 is a de facto "affirmative injunction " —an order to perform a specific act. But the only party that can enact a city charter amendment are the electors. Hence, Judge Racho has issued an order to the voters of San Luis Obispo demanding they vote in a particular manner! Clearly ludicrous. PERB DECISION ENTICES CITIZEN LAWSUIT I fear acceptance of the proposed remedy will entice Constitutional litigation against the City of San Luis Obispo from citizens whose Constitutional rights are infringed by the PERB Order. CONCLUSION For all of the above reasons and more, the San Luis Obispo City Council should oppose the PERB Proposed Decision and should appeal by filing a "statement of exceptions" to the Proposed Decision, and should take any other action necessary to defend the will and interest of the electors of the City of San Luis Obispo. Respectfully, Kevin P. Rice cc: Christine Dietrick, City Attorney <cdietrick @slocity.org> Anthony Mejia, City Clerk <amejia @slocity.org> 14 Not an administrative judge, however. Nullifying statute requires adjudication in a court of law. -7- Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 6:53 PM To: J. Joseph Grady Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Please Stand by the Voters of San Luis Obispo. Fight Binding Arbitration. Thank you for your message regarding this important issue. I am including our city clerk staff, so that your email is posted on our website as agenda correspondence. All the Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: J. Joseph Grady Dohn.j.grady @gmail.com] Sent: Sunday, March 09, 2014 6:09 PM To: Council ALL Subject: Please Stand by the Voters of San Luis Obispo. Fight Binding Arbitration. Dear San Luis Obispo City Council Members, I am a concerned 23 year old lifelong resident of San Luis Obispo writing to express my disappointment with the recent Public Employment Relations Board decision that San Luis Obispo City unlawfully repealed binding arbitration in the 2011 elections. As you are doubtlessly aware, 73% of voters in 2011 agreed that binding arbitration was not in the best interest of the city. As taxpayers in a democratic society we have the right to control how our tax money is spent, and should city council acquiesce to the demands from PERB, you will be blatantly ignoring the will of the people who elected you. I speak for myself and the thousands of other voters when I say that binding arbitration is bad policy for the city of San Luis Obispo. It drains funding from city development, maintenance, and safety projects and has resulted in inflated salaries and benefits for a portion of city employees. Binding arbitration is an obtuse method of decision - making that disregards city financing, budgets, and fiscal responsibility. The citizens of San Luis Obispo have spoken clearly on this issue. Perhaps what is most upsetting, however, is the apparent disregard for the democratic process. The 2011 ballot measures A and B were approved by a San Luis Obispo judge as lawful before the election took place. What authority does the Public Employment Relations Board have to nullify the subsequent results? Only the people of San Luis Obispo City have the authority to change the city charter — not PERS, not the unions, not even the City Council. San Luis Obispo voters added binding arbitration to the charter years ago, and we have the right to remove it. As residents who care deeply about San Luis Obispo's future, we want what is best for the city and all of its citizens. Please stand by the people who elected you to the City Council and do not give in to demands that attempt to nullify your constituents' voices. It is of vital importance that you appeal this ruling and help solidify a brighter future for our city. Sincerely, J. Joseph Grady 1829 Morro St. San Luis Obispo, CA 93401 Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 4:18 PM To: Strongapril Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Please appeal binding arbitration Thank you for your message regarding this important issue, April. I am including our city clerk staff, so that your email is posted on our website as agenda correspondence. All the Best, Jan PS The knee is great! Thank you again. Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Strongapril [strongapril @aol.com] Sent: Saturday, March 08, 2014 5:11 PM To: Council ALL Subject: Please appeal binding arbitration Dear City Council - I was appalled to hear of the recent decision to reverse the vote on binding arbitration. The overwhelming voice of the San Luis Obispo voters should speak louder than an unjust and unbalanced procedural issue. I urge the Council to appeal this decision,. Take it all the way to the State Supreme Court if necessary. Thank you for your time and energy that you are devoting toward this issue and the many others in our beloved City. Sincerely, April M. Strong 1405 Johnson Ave San Luis Obispo, CA Krell Kate From: Marx, Jan Sent: Sunday, March 09, 2014 4:17 PM To: Donna Lewis Cc: Mejia, Anthony; Kremke, Kate Subject: RE: PLEASE appeal the administrative lawjudge decision which would require Council to restore binding arbitration to the City charter Thank you for your message regarding this important issue, Donna. I am including our city clerk staff, so that your email is posted on our website as agenda correspondence. All the Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Donna Lewis [donna @ccmcslo.com] Sent: Sunday, March 09, 2014 2:00 PM To: Council ALL Cc: donna @ccmcslo.com Subject: PLEASE appeal the administrative law judge decision which would require Council to restore binding arbitration to the City charter Dear Council, PLEASE vote to appeal the administrative judge decision which would require you to restore binding arbitration to the City charter. Even without the binding arbitration headwind and even with the continuation of Measure Y, I am personally VERY concerned about the financial health of our City given looming pension liability issues to be faced in the very near future. If binding arbitration is thrown back into the mix, and with the current sentiment that exists in the voters mind with regard to binding arbitration and the way it ate up Measure Y dollars when Measure Y was first passed, I am VERY concerned that Measure Y will fail if binding arbitration is back on the table... and I believe this would be devastating to the City's financial health and ability to maintain vital city services. Just last night, at the Cal Poly Men's Basketball game, this was an unsolicited topic of conversation had with at least 3 -4 local business leaders... and in each case I heard them say loud and clear that they will not support nor will they vote for the passage of Measure Y if binding arbitration is back in play. PLEASE, PLEASE, PLEASE do the right thing and proceed post haste in voting to appeal this ruling. The financial consequence of the reinstatement of binding arbitration with and especially without Measure Y dollars would be devastating to the City and its residents. Donna Lewis I Principal & Mortgage Consultant (NMLS 41245945) Central Coast Mortgage Consultants 755 Santa Rosa Street, Suite 310 1 San Luis Obispo CA 93401 C 805.235.0463 1 O 805.783.4000 1 F 805.783.4005 Apply now at www.ccmcslo.com, click "Apply Online ", then choose "Long Loan Application" Tracy Sandiego Processor 513 13th Street Paso Robles CA 93446 O 805.226.5599 F 805.238.6194 Drocessor@ccmcslo.com u mortg age r.., :l n t-o;�;:� This electronic message contains information from Sierra Pacific Mortgage Company, Inc, dba Central Coast Mortgage Consultants, which may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited. If you have received this transmission in error, please notify me immediately. Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 11:19 AM To: Mejia, Anthony; Kremke, Kate Subject: FW: Arbitration Attachments: Arbitration.docx Agenda correspondence Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: KENNETH PALMER [kencarolpalmer @sbcglobal.net] Sent: Sunday, March 09, 2014 10:53 AM To: Marx, Jan; Smith, Kathy; Christianson, Carlyn; Carpenter, Dan; Ashbaugh, John Subject: Arbitration Council Members, Please consider the points made in the attached memo as you discuss PERBS recent ruling. Respectfully, Ken Palmer March 9, 2014 To: Council Members From: Kenneth Palmer Subject: Binding Arbitration I will make this brief and to the point: I urge you to appeal the Public Employees Relations Board ruling regarding binding arbitration, for two reasons. One: I am confident that our attorneys can make persuasive arguments that PERB has had no authority to overrule an initiative by the voters of SLO. Two: No creditable labor relations scholar would support Binding interest (wages, hours and other conditions of employment) arbitration. It undermines the very concept of Collective bargain compromise and holds the public sector governing bodies captive to an Arbitrator with no stake in the process. While there are options such as "Final most reasonable offer" "last Best" arbitration for settling interest issues, I am unpersuaded that even these options are necessary for SILO. As a footnote —I do know where of I speak on this issue. For 25 years I was a member of a public employee union and served as a board member and officer taught education public sector collective bargaining. As County Superintendent I bargained our contracts for management. In my doctoral work, I earned a cognate in economics and collective bargaining, and I did my dissertation on public sector collective bargaining. I appreciate your consideration of these points. Respectfully, Ken Palmer Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 11:17 AM To: Mejia, Anthony; Kremke, Kate Subject: FW: binding arbitration Agenda correspondence Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Christine Mulholland [cdev @thegrid.net] Sent: Sunday, March 09, 2014 10:32 AM To: Council ALL Subject: binding arbitration Dear Mayor and Council Members, I add my name to those who encourage you to challenge the ruling by the administrative law judge that would over -rule the vote of the people SLO and require the reinstatement of binding arbitration. Christine Mulholland 805 - 544 -6618 Mejia, Anthony To: Marx, Jan Subject: RE: Your Decision on Monday Anthony J. Mejia I City Clerk Cil,y of san WIS osispo 990 Palm Street San Luis Obispo, CA 93401 tel 1805-781-7102 From: Marx, Jan Sent: Sunday, March 09, 2014 8:11 AM To: Mejia, Anthony; Kremke, Kate Subject: FW: Your Decision on Monday Agenda correspondence. Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Andrew Carter [ancarter @aol.com) Sent: Sunday, March 09, 2014 1:25 AM To: Council ALL Subject: Your Decision on Monday Dear Council, What follows is lengthy. I realize that. It covers every nuance I can think of about the decision you face on Monday. As you are aware, I have been sounding the alarm about this matter since I first heard of it on Tuesday. I make no apologies for that. In fact, AnnMarie Cornejo at The Tribune knew nothing about the issue until I told her Wednesday evening. I was afraid your decision would come and go without anyone having the chance to voice their views. My thoughts ... The Ruling As you know, an administrative law judge from the Public Employee Relations Board in Sacramento has invalidated the B- portion (binding arbitration) of the Measure A & B election of August 2011. She let the A- portion stand (pension reform). "Meet and Confer" The administrative law judge made her ruling because she believes City Council violated the "meet and confer" process when it put Measure B on the ballot. Oddly, she did not reach that conclusion on Measure A. What the administrative law judge failed to note was that the "meet and confer" process in San Luis Obispo at that time for Public Safety employees included the possibility of binding arbitration on ALL issues involving the employee /employer relationship. We can reasonably assume that Public Safety would have taken the City to binding arbitration over the issue of putting its repeal on the ballot, so Council would have needed an outside arbiter to allow it to put A & B on the ballot. � Also, given the City's previous experience with binding arbitration, it would have taken two years for the binding arbitration process on the ballot initiatives to unfold. Impact on the City Charter The administrative law judge has directed City Council to restore binding arbitration to the City Charter. What is interesting is that she is telling Council to do something Council normally does not have the right to do. Council cannot change the City Charter, only the people can. Invalidating the "Will of the People" Through her decision, the administrative law judge is invalidating the will of the 7,723 San Luis Obispo citizens who voted in August 2011 to repeal binding arbitration (73% of the ballots casts). We all know that courts do occasionally invalidate elections, but that's usually when the people make a decision the courts do not believe the people have a right to make under the U.S. constitution or a state constitution. Think of a vote that unconstitutionally limits the right to free speech, the right to vote, the right to equal protection under the law. There are other times when an election is invalidated due to a massive flaw in the electoral process. A flaw so massive the court wonders whether a different result would have occurred if the election had been conducted correctly. In those cases, the remedy is to hold the election again. I'm not aware of a court deciding to throw out the results of an election on a matter that voters do have a right to decide because of supposed flaws in the way that matter got to the ballot, with no flaws in the election itself, with the court deciding not to call for a re -vote, and the court pretending the first vote never took place. Remedy Out of Proportion to Harm Done There is also legal precedent which says a court has to weigh whether a potential remedy is out of proportion to the supposed harm caused by the defendant. I would hope even those who think that Council didn't adhere to the "meet and confer" process would agree that invalidating an election is out of proportion to the supposed harm caused. The only way to believe otherwise is to believe that strict adherence to "meet and confer" trumps the ballot box and the basic tenets of democracy. The Public Employee Relations Board (PERB) The administrative law judge in this case is an employee of a "quasi-judicial administrative agency." That's how PERB describes itself on its website. She is not a "real" judge. She does not preside in a "real" court. I hate to say this, but PERB exists solely for the benefit of public employees, not public employers, and definitely not for the benefit of all citizens. In fact, PERB is dominated by public employee unions. For instance, of the four current members of the PERB board, two served previously as union lawyers and one served previously as a paid union staff member. (This information comes from the PERB website.) How We Got Here? The SLO Police Officers Association (POA) brought this matter to PERB. In case you don't remember, in May 2011, the POA went to San Luis County Superior Court to try to stop the A & B election before the election took place. The POA used the same arguments in Superior Court they have since used at PERB. Superior Court Judge Charles Crandell ruled against them. The election took place. The POA lost. Then they took their case to PERB, the friendliest venue they could find and potentially the only place they might win. The Decision Before You On Monday at 9:00 am, you will meet to decide what to do about the administrative law judge decision. You have two alternatives. 1) Accept the decision, restore binding arbitration to the City Charter, and ignore the will of the people. 2) Appeal the decision. Friday's Tribune article gave the impression that there is a third alternative, "negotiate a settlement" with the POA. There is no third alternative, no middle ground, not unless you can somehow buy off the POA and the POA is willing to be bought. By "buy" and "bought," I mean with wage increases, benefit increases, or some other monetary inducement. The POA knows the value of binding arbitration, so does the Firefighters' union. They once had binding arbitration. They used it to their advantage. They lost it. They've seemingly won it back. It's extremely unlikely they would voluntarily let it go again. Economic Impact of Binding Arbitration For those who don't remember, I've attached a chart which shows the historical impact of binding arbitration on cost -of- living adjustments (COLA) for City employees. In 2000, the Firefighters' union (IAFF) and POA won the votes to put binding arbitration into the City Charter. Prior to 2000, COLA increases for Public Safety as well as all other City employees generally tracked inflation as measured by the Consumer Price Index (CPI). Once binding arbitration was in the City Charter, Public Safety used the mere existence of binding arbitration to achieve COLA increases much higher than CPI. Looking back on that time when binding arbitration existed but hadn't yet been used, IAFF president Eric Baskin once described binding arbitration to me as "the baseball bat in the corner" during labor negotiations. Even in the corner, it was a very effective bat. During the time after binding arbitration was passed but before it was used, because of out -sized pay increases for Public Safety, the City was facing a have vs. have -not situation with respect to its other employee groups. So the City began to give those groups COLA increases higher than CPI. In 2006, the POA decided to actually use binding arbitration. They rejected the City's offer of 20% in COLA increases over four years. (The IAFF accepted this offer.) The POA went to binding arbitration. Two - and -a -half years later, they won a four -year contract granting 30% in COLA increases for sworn officers over time and 35% for dispatch. The CPI during those four years totaled 11 %. In addition, during those four years, many Public Safety employees also received step -in -grade increases of up to 22 %. The binding arbitration ruling came down in August 2008. Since it was retroactive to January 1, 2006, the impact on the FY 2008/09 budget was significant -- $4.0 million. Council had to immediately make budget cuts. Among other things, those cuts included $1.6 million in street and sidewalk improvements, $600,000 in flood protection projects, $300,000 in open space projects, and $500,000 in Public Safety projects. This last cut included the elimination of two neighborhood police positions (not yet filled) which had been promised to the voters during the 2006 Measure Y campaign. The go- forward cost of the binding arbitration award was $2.5 million per year. During that time, Measure Y revenue totaled about $5.5 million per year. The August 2011 A & B election repealed binding arbitration and initiated pension reform. With 3 -to -1 voter support of both measures and binding arbitration gone, City Council was able to negotiate new labor contracts with no COLA increases and with all employees starting to pay their 8% or 9% CalPERS pension contribution. That's why you see the adjusted COLA's in my chart suddenly fall. The value of those savings is currently $2.6 million per year. What I Believe I'm sure you can tell I strongly believe City Council needs to appeal the PERB administrative law judge decision. You need to stand up for the will of the people, the power of the ballot box, and the fundamental tenets of democracy. I believe it is every Council member's obligation to do that whether you originally supported Measure B or not. I believe that obligation flows out of the oath each of you took "to preserve, protect, and defend" the Constitution of the United States, the Constitution of the State of California, and the Charter of the City of San Luis Obispo. With respect to the City Charter, I think that means the specific language the voters have decided they want the Charter to contain. I also believe it's incumbent on each of you to challenge the administrative law judge decision if you also expect to ask our citizens this fall to support the renewal of Measure Y. History shows the return of binding arbitration means Council will once again lose control of the City budget. I was elected to City Council in 2006, the same year that Measure Y was passed. I supported Measure Y then. I continue to support it now. One of the reasons I fought to put Measure A and B on the ballot, fought to get A and B passed, and fought to negotiate the new labor contracts was because of Measure Y. The question I faced then was how could I continue to support Measure Y if I couldn't guarantee to the voters that Measure Y funds would be used in the manner the voters intended. With the administrative law judge decision, you are facing that same question today. You have to fight. And let's be clear, the cost of fighting will be far less than the cost of the return of binding arbitration. One Final Word I have attached the ballot argument Mayor Jan Marx and I submitted in 2011 in support of Measure B. I have also attached the ballot argument former Mayor Dave Romero, former Mayor Ken Schwartz, former Council Member John Ewan, former Council Member Paul Brown and former Council Member Christine Mulholland submitted as a rebuttal to the arguments the Measure B opponents submitted in 2011. Best wishes. Andrew Carter 2916 Augusta Street, Apt. 26 San Luis Obispo, CA 93401 805 -471 -8103 ic I � Q m w., C 0 .o Q e v c m `r.e v An .ep2 U) O Q C,� 190, °C� m C 0 .o Q e v c m t 6 R lip 2 190, � II j c °leoe a U N % N U sus cz f CL 00 °c' a G 0 o� U o �p p cJn Q O °e co g C 01 ,O Os S L 0 U m : c 3 c mQQN \ °Oca C) in { Irp �°°c� °O C 0 .o Q e v c m d > S6'� cq O C) 00 I- (G Lf) R* M N r O N T r T r T T r r r r U xapul idD /VIOO t 6 190, t On N sus CL U d > S6'� cq O C) 00 I- (G Lf) R* M N r O N T r T r T T r r r r U xapul idD /VIOO Ballot Argument in Support of Measure B - 11 Mandatory binding arbitration is unfair to local residents. It lets an out -of -town arbitrator dictate pay and benefits for San Luis Obispo police and firefighters. The arbitrator doesn't live here, doesn't know our community, and doesn't need to consider what must be cut from the budget to finance the award. The arbitrator's decision is final and can't be overturned. When residents voted in binding arbitration, they couldn't have imagined the consequences. Now they know, all too well. In 2008, an out -of -town arbitrator gave San Luis Obispo police an unbudgeted $4 million increase over four years — that's a 30% pay raise when inflation was only 11 %. Many officers got an additional 22% raise for years of service. The on -going annual cost of that award is $2.5 million, which represents more than half the City's current structural budget gap. Due to the award, City Council had to eliminate $1.6 million in street and sidewalk improvements, $600,000 in flood protection projects, $300,000 in parks and open space projects, and $500,000 in public safety projects, including two hoped for neighborhood police officers. Higher per officer pay meant fewer officers on the street. Before the award, San Luis Obispo police were the highest paid in the county. Now, they're paid more than Los Angeles police. California courts have ruled binding arbitration unconstitutional for general law cities. Only Charter cities, like ours, can adopt it. Only 21 of 482 California cities have adopted binding arbitration. It has recently been repealed by the voters in two cities. You can make that three, if you vote YES on Measure B. Binding arbitration takes decisions about the City's budget out of the hands of local elected officials responsible to you, the citizens of San Luis Obispo. Restore local decision making and local fiscal responsibility. Vote YES on Measure B. To learn more, visit www.CitizensForSLO.org s/ Jan Marx, Mayor Andrew Carter, Council Member Rebuttal to Argument Against Measure B -11 Do you make more than you would if you worked in Los Angeles? San Luis Obispo police officers do. Did you receive a 30% cost of living increase between 2006 and 2009? SLO police officers did. In fact, many received increases of 57% when years of service were included. This, in the midst of the worst recession since the Great Depression. Why? Because of mandatory binding arbitration. An out -of -town arbitrator gave police these enormous increases even though inflation was only 11 %, our police were already the highest paid in the county, and unemployment was skyrocketing as the economy crashed. You'd think binding arbitration was "fair" if you received these huge raises. If you had to pay for them, you wouldn't. All city residents had to pay, and we're still paying — an extra $2.5 million yearly. Did the out -of -town arbitrator consider the City's ability to pay? No, not short of bankruptcy. He didn't care what had to be cut to cover these increases — $1.6 million in streets and sidewalks, $600,000 in flood protection, $300,000 in parks and open space, and $500,000 in public safety. Did binding arbitration make our community safer? No. It meant fewer police officers on the street because the City had to cancel a planned nighttime neighborhood police patrol. Binding arbitration is unfair to local residents. We urge you to repeal it. That's the only way to restore local decision making and insure long -term financial stability for San Luis Obispo. Vote YES on Measure B. s/ Dave Romero, former mayor Ken Schwartz, former mayor John Ewan, former council member Paul Brown, former council member Christine Mulholland, former council member Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 8:09 AM To: Mejia, Anthony; Kremke, Kate Subject: FW: Arbitration Ruling Attachments: Editor 3 8 14.doc Agenda correspondence Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Jack McDonough Umcdee @att.net] Sent: Saturday, March 08, 2014 3:48 PM To: Marx, Jan Subject: Arbitration Ruling Dear Mayor Marx -- Perhaps you will remember meeting me briefly at the train station dedication on that wonderful sunny Saturday a few months back when you captured the spirit of the day so nicely in your remarks. Attached is a letter I posted earlier to the Tribune, which I wanted you to have directly in case they don't print it, since you have the special meeting upcoming Monday morning. I am posting it to the other council members as well so it can be part of your official record. Best Regards - -Jack McDonough 547 -1716 Dear Tribune Editor: Your March 7 report on the SLO police arbitration ruling tells us that Administrative Law Judge Valerie Pike Racho made her decision because city officials "refused to meet" with the police union, thereby violating state labor law. This is an incendiary charge, implying as it does a shocking level of incompetence and hubris on the part of city personnel. Since the first law of all bureaucracies is to cover one's rear end, it seems highly unlikely that such personnel would have dared to leave themselves so flagrantly exposed legally as to refuse to meet with their negotiating partners. Your reporter, rather than quoting an "outraged" citizen on the matter (no surprise there), would have done far better to talk to the city's lead negotiators to find out what in the record suggests that they "refused to meet" with their POA counterparts, and whether they understood that such refusal was a violation of state law. Since the ruling is dated February 28, and you did not report it until March 7, you had a week to make the necessary inquiries. Which raises a separate question: why did you wait a week to bring us this extremely important bit of news? It would also have been very helpful to answer other essential questions. What exactly is an "administrative law judge "? By whom was this particular judge hired or appointed? What are her qualifications to, in one fell swoop, negate a voter referendum? Why are such constitutionally fraught decisions not made through the traditional courtroom process, rather than by an "administrative" judge? Why did this judge wait two years and four months to render such a decision, while this wound was openly festering? What records led her to conclude that the city had "refused to meet "? A perhaps more important question: Is Ms. Racho not part of the same vast labor - regulation bureaucracy as the arbitrators, and does she not therefore have a conflict of interest in upholding their decisions and protecting their jobs? After all, if every municipality did what we so wisely did here, Poof! No more arbitrators! Who, indeed, appoints or hires the arbitrators? Is it, perchance, the same people who appoint the "administrative judges "? What are an arbitrator's qualifications to, in one fell swoop, grant salary increases of 30 and 37 percent, figures so wildly out of touch with reality that they led to the revolt known as Measure B. Final thought. It is perpetually unsettling to reflect that we have reached the pass where, even in a small, manageable and enlightened burg such as ours, the terms "city" (i.e., the "polis," the community of citizens) and "police" (from the same Greek word, suggesting the regulation of order, safety and well -being within that community) now suggest opposing forces, when in fact, as per the Constitutionally accepted theory of police powers, the police are a creature of the state /city, and, ideally, there should be no conceptual separation of the two. I know, I'm being naive, but still.... Jack McDonough San Luis Obispo Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 8:09 AM To: George Petty Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Binding Arbitration Thank you for your email. I am including city clerk staff in this response, so your message is posted on our website as agenda correspondence. Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: George Petty [gklpetty @sbcglobal.net] Sent: Saturday, March 08, 2014 4:08 PM To: Council ALL Subject: Binding Arbitration Please appeal the recent court decision restoring binding arbitration. It was overwhelmingly passed by a vote of your constituents, and it is your duty to do your best to implement their wishes. George Petty Kremke, Kate From: Manx, Jan Sent: Sunday, March 09, 2014 8:08 AM To: Tres Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Binding Arbitration Council Meeting Thank you for your email. I am including city clerk staff in this response, so your message is posted on our website as agenda correspondence. Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Tres [trestile @charter.net] Sent: Saturday, March 08, 2014 4:08 PM To: Council—ALL Subject: Binding Arbitration Council Meeting Dear Council Members, My wife and I have resided in the city of San Luis Obispo for 25 years. We have continuously owned and operated a retail business in downtown SLO for 22 years. We both urge you to please vote to appeal the decision to restore binding arbitration. We love this city and we believe it is important for our elected city council to have control over how it spends the city's revenue. Binding arbitration was overwhelmingly voted down by this cities voters and we expect our city council to respect the voters voice. Thank you for your service, Tres and Debra Feltman Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 8:08 AM To: Tom Swem Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Measure A and B issues Thank you for your email. I am including city clerk staff in this response, so your message is posted on our website as agenda correspondence. Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Tom Swem [tswemccim @gmail.com] Sent: Saturday, March 08, 2014 4:13 PM To: Council ALL Subject: Measure A and B issues Mayor and Council Members, As a long time business person in resident of San Luis Obispo, I strongly request that you go for an appeal of the latest administrative law judge's findings. For all the reasons that we pushed forward for Measure A & B, problems will be 10 fold now if it goes forward with binding arbitration. It seems that this administrative law judge was dramatically biased and it must go to court to push for that type of finding. I appreciate all of the hard work that you all put in for the City and hope for good times in the future. Thank you again Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 8:07 AM To: Betty Buchanan Cc: Mejia, Anthony; Kremke, Kate Subject: RE: binding arbitration Thank you for your email. I am including city clerk staff in this response, so your message is posted on our website as agenda correspondence. Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Betty Buchanan [bettyslo @charter.net] Sent: Saturday, March 08, 2014 5:09 PM To: Council ALL Subject: binding arbitration Please, please fight this terrible turn over of what the public voted for. We do not want or can we afford to have this overturned. Be strong and make a stand. Fight it with all that you have. Betty Buchanan This email is free from viruses and malware because avast! Antivirus protection is active. http: / /www.avast.com I Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 8:07 AM To: Allen K. Settle Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Binding arbitration Thank you, Allen. I am including city clerk staff in this response, so your message is posted on our website as agenda correspondence. Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Allen K. Settle [asettle @calpoly.eduj Sent: Saturday, March 08, 2014 6:50 PM To: Council ALL Subject: Binding arbitration You must appeal the ruling from the administrative law judge. Voters want you to appeal and meet and confer should not limit elected official decision. I agree with the city attorney opinion Allen Settle Sent from my Whone Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 8:06 AM To: Dan Bertozzi Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Appeal the Binding Arbitration Decision Thank you, Sandra. I am including city clerk staff in this response, so your message is posted on our website as agenda correspondence. Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Dan Bertozzi [dbertozz @calpoly.edu] Sent: Saturday, March 08, 2014 7:41 PM To: Council ALL Cc: dbertozz @calpoly.edu Subject: Appeal the Binding Arbitration Decision I urge a unanimous vote by members of the City Council to appeal the recent administrative law judge decision upholding binding arbitration. The citizens of San Luis Obispo voted in overwhelming numbers to do away with binding arbitration for public safety employees. To back away from this policy decision will seriously damage the city's financial well- being. Dan Bertozzi 1634 El Cerrito Court San Luis Obispo, CA 93401 Sent from my Wad Kremke, Kate From: Marx, Jan Sent: Sunday, March 09, 2014 8:05 AM To: Sandra Rowley Cc: Mejia, Anthony; Kremke, Kate Subject: RE: Appeal of Administration Law Judge Decision Thank you, Sandra. I am including city clerk staff in this response, so your message is posted on our website as agenda correspondence. Best, Jan Jan Howell Marx Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Sandra Rowley [macsar99 @yahoo.com] Sent: Saturday, March 08, 2014 9:28 PM To: Marx, Jan; Ashbaugh, John; Smith, Kathy; Carpenter, Dan; Christianson, Carlyn Subject: Appeal of Administration Law Judge Decision SUBJECT: Appeal of Administration Law Judge Decision Dear Mayor Marx and Members of the Council, I sincerely hope that each of you, regardless of your personal opinion, will support the decision of the significant majority of voters who determined that binding arbitration should be removed from the City Charter. I believe it is important that you vigorously support the voters' decision — however far you must go to do so. The council members who voted to place repeal of binding arbitration on the ballot understood this was what city residents wanted them to do. Although some residents were concerned that gathering signatures or signing a petition could subject them to repercussions (remember the beefy, out -of -town men lined along the Council Chamber wall so that everyone had to pass them on the way to the podium back when Dave Romero was the mayor and this topic was being considered), they made their wishes known at the ballot box. You must appeal the decision of the administrative law judge. Support of your constituents is the right thing to do. Sincerely, Sandra Rowley SLO Resident Mejia, Anthony From: Kevin P. Rice <kriceslo @gmail.com> Sent: Sunday, March 09, 201410:15 PM To: Dietrick, Christine; Mejia, Anthony Cc: Council ALL Subject: Report out of closed session (Monday 3/10) Dear Mr. Mejia & Ms. Dietrick: Because I am unable to attend tomorrow, I am expecting a public report out of any action taken in closed session and the vote or abstention of every member present. (Brown Act section 54957.1.) Since CONFERENCE WITH LABOR NEGOTIATORS does not appear on tomorrow's agenda, I expect that no discussions will occur directing any contact with an ern to ee organization. If the council wishes to contact an employee organization, I expect to see CONFERENCE WITH LABOR NEGOTIATORS on a future closed session agenda. (54954.5(f).) I will be calling/contacting your office for a report out tomorrow afternoon - - -so, again, a written report would be wonderful. Kevin P. Rice (805) 602 -2616 P.S. - - -- One additional case authority on the limits of labor board authority (note the added emphasis---"allowable area of the Board's discretion" implies area outside discretion exists): "Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion [ ... ] On the other hand, the power with which Congress invested the Board implies responsibility -- the responsibility of exercising its judgment in employing the statutory powers." (Phelps Dodge Corp. v. Labor Board (1941) 313 U.S. 177, 194 [in adjudicating an employment discrimination case against the National Labor Relations Board (NLRB)].) [Emphasis added.] 1 miia, Anthony From: Kevin P. Rice <kriceslo @gmail.com> Sent: Sunday, March 09, 2014 5:35 PM To: Council-ALL Cc: Dietrick, Christine; Mejia, Anthony Subject: COUNCIL CORRESPONDENCE - PERB DECISION (3/10 closed session) Attachments: 20140308 -RICE- comments - PERB- decision.pdf [PUBLIC COUNCIL CORRESPONDENCE] Dear Mayor, Council Members and Staff: My comments on this important matter tomorrow morning are attached as a PDF file. Please contact me if you have any questions or trouble with the attachment. Best regards, Kevin P. Rice (805) 602 -2616 Kevin P. Rice PO Box 14107 San Luis Obispo CA 93406 -4107 (805) 602 -2616 kricesloggmail.com PUBLIC COUNCIL CORRESPONDENCE [via a -mail) Sunday, 2014 March 9 City Council San Luis Obispo City Hall 990 Palm St San Luis Obispo CA 93401 -3236 council allna,slocity.org (805) 781 -7114 SUBJECT: PERB DECISION (BINDING ARBITRATION) MARCH 10, 2014 CITY COUNCIL CLOSED SESSION Dear Mayor, Council Members and staff: Will you defend democracy today? THE CITY COUNCIL MUST APPEAL' THE PERB PROPOSED DECISION Does an administrative board in Sacramento trump the vote of San Luis Obispo's citizens? The PERB Proposed Decision must be overturned. No administrative body has ever overturned a ballot initiative. Our elected representatives have a responsibility to represent the People's interest above all other interests. The voters amended our city's constitution —our charter. An administrative law judge does not have the authority to order amendments to our charter, whether or not Measure B3 was placed on the ballot inappropriately. The PERB Decision amounts to administrative nullification of the will of the electorate (73% "Yes" vote for Measure B) and would turn more than one hundred years of constitutional initiative law on its head. Reasons for appeal follow: 1 File a "statement of exceptions" to the Proposed Decision, pursuant to 8 CCR § 32300. z San Luis Obispo Police Officers Assoc. v. City of San Luis Obispo (2011) PERB Case No. LA -CE- 729 -M, Proposed Decision 02/28/2014 (hereinafter, "PERB Decision" or "PERB Opinion "). 3 Measure B, repealing City Charter § 1107, Special Municipal Election, Tuesday, August 30, 2011. ME PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE— COUNCIL CORRESPONDENCE ONLY QUO WARRANTO (NOT PERB) CAN REVERSE MEASURE B The Court of Appeal has held "auo warranto is the onlLlegal mechanism for attacking the legitimacy of a charter - amending initiative alleged to have been placed on the ballot in violation of the Meyers- Milias -Brown Act (MMBA)." (95 Ops.Cal.Atty.Gen. 31, at p. 4 [citing Assn. of Fire Fighters v. City of Oakland, 174 Cal. App. 3d at 693 -698; also City of Fresno v. People ex rel. Fresno Firefighters, 71 Cal. App. 4th at 89].) A quo warranto action is brought in the name of the People of the State of California (e.g., People v. City of Son Luis Obispo). It is a public action. Because a quo warranto action is brought in the name of the People, leave to sue in quo warranto must be sought and obtained from the State Attorney General. The parting obtaining leave to sue is termed the "relator ". Neither PERB, nor the San Luis Obispo Police Officers Association (POA), can order the city council to initiate litigation (i.e., quo warranto) against itself! If a relator such as PERB wishes to challenge the validity of Measure B, that relator must itself obtain leave to sue in quo warranto from the attorney general. CITY COUNCIL HAS NO ABILITY TO COMPLY WITH PERB ORDER A vote of the electorate is required to amend our city charter 4 The city council has no independent authority to make amendments.5 Therefore, PERB's order to rescind Measure B is absurd on its face! It is simply impossible for the city council to comply. PERB's order exceeds its own authority as well as the authority of the council. The remedy is obviously untenable and outright capricious. PERB is ordering the city council to violate law. PERB LACKS AUTHORITY /JURISDICTION TO ENFORCE ITS OWN ORDER Because quo warranto is the only mechanism (aside from a public election) that can attack Measure B, PERB has no authority to enforce its own order. The Attorney General controls quo warranto actions. No matter how significant an interest an individual or entity may have, there is no independent right to sue.6 While PERB is entitled to make a determination of a violation, it has no authority to order a remedy that overturns an election. 4 California Constitution, Article XI, Section 3. 51bid. 6 Oakland Municipal Improvement League v. City of Oakland, 23 Cal. App. 3d 165, 170 (1972). -2- PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE— COUNCIL CORRESPONDENCE Moreover, Attorney General consent controls jurisdiction in quo warranto actions. PERB has none. A court may not hear a quo warranto action unless it is brought or authorized by the Attorney General .7 Because PERB has no authority or jurisdiction to mandate repeal or reversal of Measure B the PERB Decision is fatally flawed. POA COMPLAINT IN OCTOBER 2011 WAS TOO LATE (AFTER ELECTION) The POA filed its unfair practice charge with PERB too late —after the election. The POA admits to becoming aware of renewed city council concerns regarding binding arbitration in January 2011. City Resolution No. 10265 ordering Measure B to be submitted to the voters was adopted on May 17, 2011. The special municipal election was held on Tuesday, August 30, 2011. Yet, the POA neglected to file any charge with PERB until October 17, 2011. Because the POA "sat on its laurels ", any remedy that includes overturning our election should be excluded under the legal doctrines of acquiescence (i.e., "silence is complicity ") and estoppel by laches (i.e., "unreasonable delay in pursuing a claim "). In general, these legal doctrines may be asserted when a defendant is in a worse position now than at the time the claim should have been brought. Delay by the POA in asserting its claim has caused a great increase in the potential damages — overturning a vote of the People versus merely delaying or enjoining the Measure B election before it took place. The PERB Decision fails to consider the POA's failure to appeal its SLO Superior Court case (e.g., acquiescence) and delay in filing its PERB complaint (e.g., laches) when formulating the proposed remedy. THE COURTS HAVE ALREADY SPOKEN: THE ELECTION STANDS The POA's opportunity to stop Measure B has already been denied by the Courts.8 On May 16, 2011, SLO Superior Court Judge Charles Crandall denied the POA's request for a temporary restraining order to stop the Measure B election. The Courts are loathe to overturn a vote of the People -1 am not aware of a single case where this has occurred. PERB has no authority to overturn the Measure B election. The 7 Cooper v. Leslie Salt Co., 70 Cal. 2d 627, 633 (1969). s http: / /www.sanluisobispo.com/ 2011 /05/16/1603115/judge- denies -slo- police- union.htmi -3- PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE— COUNCIL CORRESPONDENCE POA's time to intervene was before the election. The POA attempted to intervene and was denied. Following the denial, the POA dismissed their case instead of appealing. Any remedy should not amend our city charter because the POA did not aggressively pursue their claims prior to the election. The time to stop Measure B has passed. WEIGHING THE RIGHTS & INTERESTS OF THE PARTIES When faced with intractable situations, decision - makers must carefully weigh the harm to each party caused by any proposed remedy. The decision -maker must give consideration to whether either party has "unclean hands" (i.e., participation in some "wrong" that contributed to the outcome). On one hand, the "harm" to the Police Officers Association (POA) is the alleged abridgement of their right to meet and confer. The proposed remedy would repair that harm, but at what cost to the people of San Luis Obispo? Indeed, the proposed remedy would harm fundamental stalwart Constitutional rights that all Americans hold dear, to wit: the right to vote. The remedy proposed in the PERB decision fails to weigh the overwhelming Constitutional rights and interests of the People of San Luis Obispo. PERB appears to believe the council has unclean hands with respect to placing Measure B on the ballot. Yet, the POA likewise has unclean hands in dismissing their own superior court suit before the Measure B election, and in delaying the filing of their PERB complaint until after the election. Again, the proposed remedy fails to weigh these facts. PERB JUDGE ERRED IN HER OPINION Administrative Law Judge Racho erred in her opinion on several issues: 1. Judee Racho crossly torments NEVIBA section 3509 and other case authorities to educe unprecedented acid expansive PERB auth rii Government Code, section 3509(b) of the MMBA reads, in pertinent part: [T]he appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of [PERB]... -4- PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE— COUNCIL CORRESPONDENCE Judge Racho grossly misinterprets this statute,9 converting "exclusive jurisdiction" into unlimited authority. Judge Racho seems to believe unlimited authority is granted to PERB by section 350910, even including legislative power to enact regulation and—unbelievably - authority equal to the plenary authority of voters to amend San Luis Obispo's city charter.I I Racho goes on,12 relying upon an opinion of the Fourth District Court of Appeal (DCA): We agree with the trial court that the issues presented in this case—especially the extent to which local regulation of employment matters as prescribed by the charter might be superseded by matters of statewide concern as set out in the EERA —is a matter properly decided in the first instance, by PERB. (Local 21, International Fed. of Prof. and Tech. Engineers, AFL -CIO v. Thornton C. Bunch, Jr. (1995) 40 Cal.App.40i 670, 676.) Several things are wrong with Racho's use of this authority. First, the Fourth DCA is only speaking to the jurisdiction of PERB to decide the extent of a conflict between local regulation and state law. Second, Racho omits the citation to the case the Fourth DCA was relying upon.13 In that separate case, the Fourth DCA was called to decide whether PERB could enforce administrative subpoenas to compel production of writings of the California Governor. Racho's grossly inflates case authorities recognizing the administrative jurisdiction of PERB. Racho cites no authority that confers upon PERB the authority to rewrite city charter, or even city ordinance. Racho's reasoning continues by citing United Public Employees v. Public Employment Relations Bd. (1989) 213 Cal.App.3d 1119. Again, in this case pertaining to school employees, there was no legislative or charter amendment in dispute, and the Court actually annulled PERB's decision in the same case. 9 PERB Decision, at p. 36-37. 10 ibid. 11 Cal. Const., Art. XI § 5. 12 Id., at p. 37. 13 PERB v. Superior Court (1993) 13 Cal. App. 4th 1816. -5- PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE— COUNCIL CORRESPONDENCE Finally, Racho sums up her untenable view of PERB authority by revisiting the Fourth DCA opinion, in which Racho claims as follows: [T]he court recognized PERB's "broad remedial powers" under the statutes it administers in answer to the union's question in that case of whether PERB could fashion an effective remedy. (PERB Decision, at p. 37 [citing Professional and Technical Engineers, supra, 40 Cal.App.4a' at p. 679].) Racho's torture of the Fourth DCA opinion in Professional and Technical Engineers (supra) is noxious on a number of grounds. Most importantly, the truncated context Racho supplies in her opinion — "broad remedial powers" —must be compared to what the Fourth DCA actually wrote: PERB possesses "broad" remedial powers enabling it "to take action and make determinations as are necessary to effectuate the policies of the statutes it administers. (Mt. San Antonio Comm. College Dist. v. PERK (1989) 210 Cal. App. 3d 178, 189 -190.) This case presents no distinct or unusual remedial issues. [Emphasis added.] The Fourth DCA does indeed recognize broad power enabling PERB to take actions and make determinations necessary to "effectuate the policies of the statutes [PERB] administers ", but then follows immediately with, "This case presents no distinct or unusual remedial issues." Certainly, invalidation of a public election qualifies as a distinct and unusual issue! Especially since no administrative body has ever accomplished such an act. Equally informative, is the case cited by the Fourth DCA: Mt. San Antonio Community College District v. PERK (1989) 210 Cal. App. 3d 178,189-190. Again, the matters in this college district case challenging a PERB decision relate to administrative issues (i.e. backpay), not profound legislative and precedent setting concerns comparable with overturning an election. Judge Racho's reasoning cannot possibly be harmonized with any rational interpretation of the law and Constitutional rights of the voters. -6- PERB DECISION (BINDING ARBITRATION) KEVIN P. RICE— COUNCIL CORRESPONDENCE 2. Jude Racho cannot order an "affirmative injunction" (rgguiring voters to perform a legislative act). It is one thing when a judge 14 finds an ordinance or regulation unconstitutional or otherwise invalid and throws it out (a "negative injunction "). However, Racho has made an order to "Rescind the provisions of Measure B adopted by the City and return to the status quo ... including restoring the provisions of former City Charter section 1107, subdivision (D)." Restoring a former portion of charter section 1107 is a de facto "affirmative injunction " —an order to perform a specific act. But the only party that can enact a city charter amendment are the electors. Hence, Judge Racho has issued an order to the voters of San Luis Obispo demanding they vote in a particular manner! Clearly ludicrous. PERB DECISION ENTICES CITIZEN LAWSUIT I fear acceptance of the proposed remedy will entice Constitutional litigation against the City of San Luis Obispo from citizens whose Constitutional rights are infringed by the PERB Order. CONCLUSION For all of the above reasons and more, the San Luis Obispo City Council should oppose the PERB Proposed Decision and should appeal by filing a "statement of exceptions" to the Proposed Decision, and should take any other action necessary to defend the will and interest of the electors of the City of San Luis Obispo. Respectfully, Kevin P. Rice cc: Christine Dietrick, City Attorney <cdietrick @slocity.org> Anthony Mejia, City Clerk <amejia @slocity.org> 14 Not an administrative judge, however. Nullifying statute requires adjudication in a court of law. -7- Mejia. Anthony From: Christianson, Carlyn Sent: Sunday, March 09, 2014 2:47 PM To: Mejia, Anthony Cc: Marx, Jan Subject: FW: Arbitration Ruling Attachments: Editor 3 8 14.doc Hi Anthony and Jan, This email was sent to me personally instead of "council ALL" so I didn't know if it made it to you, thought I'd better forward it. Thank you, Carlyn Carlyn Christianson Vice Mayor, San Luis City Council 990 Palm St., San Luis Obispo 93408 cchristi @slocity.ora 805 - 550 -9320 cell 805 - 752 -1021 home (for city calls) From: Jack McDonough Umcdee @att.net] Sent: Saturday, March 08, 2014 4:01 PM To: Christianson, Carlyn Subject: Arbitration Ruling Dear Councilmember Christianson -- Attached is a letter I posted to the Tribune earlier today. In case they don't print it I wanted you to have it directly since you have the special meeting Monday morning and I wanted to be on the record. Feedback welcome. Best regards - -Jack McDonough 547 -1716 Dear Tribune Editor: Your March 7 report on the SLO police arbitration ruling tells us that Administrative Law Judge Valerie Pike Racho made her decision because city officials "refused to meet" with the police union, thereby violating state labor law. This is an incendiary charge, implying as it does a shocking level of incompetence and hubris on the part of city personnel. Since the first law of all bureaucracies is to cover one's rear end, it seems highly unlikely that such personnel would have dared to leave themselves so flagrantly exposed legally as to refuse to meet with their negotiating partners. Your reporter, rather than quoting an "outraged" citizen on the matter (no surprise there), would have done far better to talk to the city's lead negotiators to find out what in the record suggests that they "refused to meet" with their POA counterparts, and whether they understood that such refusal was a violation of state law. Since the ruling is dated February 28, and you did not report it until March 7, you had a week to make the necessary inquiries. Which raises a separate question: why did you wait a week to bring us this extremely important bit of news? It would also have been very helpful to answer other essential questions. What exactly is an "administrative law judge "? By whom was this particular judge hired or appointed? What are her qualifications to, in one fell swoop, negate a voter referendum? Why are such constitutionally fraught decisions not made through the traditional courtroom process, rather than by an "administrative" judge? Why did this judge wait two years and four months to render such a decision, while this wound was openly festering? What records led her to conclude that the city had "refused to meet "? A perhaps more important question: Is Ms. Racho not part of the same vast labor - regulation bureaucracy as the arbitrators, and does she not therefore have a conflict of interest in upholding their decisions and protecting their jobs? After all, if every municipality did what we so wisely did here, Poofl No more arbitrators! Who, indeed, appoints or hires the arbitrators? Is it, perchance, the same people who appoint the "administrative judges "? What are an arbitrator's qualifications to, in one fell swoop, grant salary increases of 30 and 37 percent, figures so wildly out of touch with reality that they led to the revolt known as Measure B. Final thought. It is perpetually unsettling to reflect that we have reached the pass where, even in a small, manageable and enlightened burg such as ours, the terms "city" (i.e., the "polis," the community of citizens) and "police" (from the same Greek word, suggesting the regulation of order, safety and well -being within that community) now suggest opposing forces, when in fact, as per the Constitutionally accepted theory of police powers, the police are a creature of the state /city, and, ideally, there should be no conceptual separation of the two. I know, I'm being naive, but still.... Jack McDonough San Luis Obispo Mejia, Anthony From: Michael Boudreau < mikeb @mtbarchitecture.com> Sent: Sunday, March 09, 2014 9 :41 AM To: Ashbaugh, John; Carpenter, Dan; Christianson, Carlyn; Codron, Michael; Dietrick, Christine; Lichtig, Katie; Manx, Jan; Smith, Kathy; Mejia, Anthony; mikeb @mtbarchitecture.com Subject: Binding arbitration Dear City Council Members, Thank you for all of your service. As to the matter of a single person deciding what we can and cannot do as a city, it is simply absurd. Canceling our majority vote to remove binding arbitration is not right. If a free people cannot choose their own destiny, in America, we all need to be concerned. Please fight this outside intrusion with all of your might. Please let me know if I can help. Sincerely, Michael Boudreau San Luis Obispo 805 549 -0400