HomeMy WebLinkAbout12-13-2016 Item 15, Carter
From: Andrew Carter [
Sent: Tuesday, December 13, 2016 1:24 AM
To: E-mail Council Website < mailcouncil _ slocity.org>
Subject: POA Settlement Agreement
Dear Council,
COUNCIL MEETING:_)
T.FM NO.:
RE: EIVE❑
DEC 13 2016
SLO CITY CLERIC
I apologize that this is being sent to you late on a Monday evening. Therefore some of you may not have the opportunity
to read it before making a decision tomorrow night and others may not have adequate time to digest it. The lateness is a
function of the time I have available in the midst of other responsibilities plus the rushed timetable in which this matter is
being considered and the City's lateness in posting materials on the City website, along with the fact the materials were
posted in a place not readily apparent.
Unfortunately, I'm not in the position to give you a recommendation on how to proceed. That's a function of not having the
benefit of the information being shared with you in closed session by the attorneys representing the City. All I can do is
give you advice on how to proceed in making your decision and what questions I would ask staff in open session or
closed session as appropriate.
First, make sure you are satisfied that a decision truly needs to be made tomorrow night. This is a decision which has a
potential half-life of forever. That's often the case when it comes to labor negotiations. It's also the rare instance when
you are dealing with an issue the community has clearly and emphatically made a prior decision upon. Even worse,
you're being asked to undo that decision, at least in part. There are times when serving on Council that the smartest
decision is to take a time-out so that individually you can collect your thoughts, collectively you can do the same, and the
community has time to provide additional input. That's particularly true when the process is being rushed, and the
process is being rushed here.
Second, this is not an easy decision. That would be the case even if all of you were experienced and had had the
opportunity to work together for some period of time. Instead, three of you are brand new and this is the first time all five
of you are sitting down together.
This is not an easy decision because you are being asked to predict the future. Staff is having to do that as well. Factor
through the what -ifs. What if you pursue this litigation further and win? What if you pursue this litigation further and
lose? The answer is unknowable, but which do you think is more likely to happen? How confident are you in that
belief? In each scenario, what would be the end -state impasse procedures the City would have to follow and how do the
middle -ground impasse procedures in this proposed settlement compare favorably and unfavorably?
Here is where you will need to ask the most questions. How did binding arbitration work? How does the current impasse
process work? How will this proposed future process work? Under each, what is Council's true scope of authority? What
does "writ review" mean? What does a "preponderance of the evidence" mean? How does "preponderance of the
evidence" compare with other standards? In the proposed impasse process, what can a judge do or not do? What
happens if the judge's view of "the interests and welfare of the public and the financial ability of the public agency" is
different than Council's view? What happens if the judge's view of where the City's wages and benefits should fall in the
range of "comparable agencies" is different than Council's? What happens if the judge's view of which "comparable
agencies" to use is different?
I can tell you that under any scenario a judge as final authority is better than an arbiter. That's because the arbiter always
needs to rule in part for management and in part for the union in order to win future arbitration gigs. That's not the case
for a judge, although a judge might nonetheless want to find an overall middle ground. Also, on each issue, the arbiter
must choose either the management position or the union's position and cannot choose something in
between. Presumably the judge can pick a middle ground on any issue. (This should be confirmed with staff.)
I'd also make sure you are clear about what the "Process Modification" section of the proposed settlement means. To
what extent does it tie the hands of a future Council, making it impossible or extremely difficult for them to put a future
Measure A or B on the ballot?
In addition, staff needs to lay out for you why they feel the process detailed in the proposed settlement provides "more
clarity" than the existing process.
Third, I believe it is your responsibility to do the best job possible accomplishing the will of the voters as expressed by
them in 2011. As much as I hate to say it, that could mean this compromise position. Based on what you learn in closed
session, this may be a situation where a half a loaf is better than none. Why do I hate to say it? Because I can't agree
with a court deciding the vagaries of labor law should defeat direct democracy and the clear will of the people, and that
may be what the Court of Appeals has done in the Palo Alto case.
In passing, I will say there are certain things I don't think you should do. The key one is to not make this decision based
on current favorable labor relations with the POA. I'm glad that relations are good, but if they were poor, I would say the
exact same thing. The decision you make has to stand the City in good stead during times of good labor relations and
poor labor relations.
I would also not let the continuing cost of litigation deter you if you believe the City has a reasonable chance of
winning. On some issues it is worth the cost of fighting, and this is a "forever" issue.
Finally, don't engage in "PR" speech. I'm sure you could tell I was frustrated with the communication Katie sent to me
early Monday evening. I felt it was "PR" speech, not accurate, and could have been written by a marketer or campaign
consultant. I say this as someone who spent 20 years of his life in consumer marketing and 10 years of his life as a
politician. Sincerity is more compelling than spin almost all the time.
Andrew Carter
Hanford, CA