33 Cal. App. 5th 376
Cal. Ct. App. 5th2019Background
- PERB found the City of San Diego violated the Meyers-Milias-Brown Act (MMBA) when the mayor advanced a citizens’ pension-reform initiative without meeting and conferring with employee unions; the California Supreme Court affirmed that violation in Boling and remanded to this court to decide remedies.
- PERB ordered (1) a compensatory remedy requiring the City to make affected current and former bargaining-unit employees whole for lost compensation (including pension benefits), offset by new benefits under the Initiative, plus 7% interest, and (2) a cease-and-desist/affirmative remedy requiring the City to meet and confer before adopting ballot measures affecting employee pension benefits and other negotiable subjects.
- The Unions sought affirmation of remedies and asked this court to invalidate the Initiative as a judicial remedy; the City and Initiative proponents argued Initiative validity can only be challenged in a quo warranto proceeding and that PERB’s remedies impermissibly assume or effectuate invalidation.
- The court held the Initiative’s validity is a novel, complex question implicating initiative power and preemption and is more appropriately resolved in a separate quo warranto action; therefore the Initiative remains presumptively valid for now.
- The court modified PERB’s remedies to avoid encroaching on matters outside PERB’s statutory competence: (a) compensatory remedy limited to bargaining over effects and payment to make employees whole for losses (difference in compensation plus 7% interest) until bargaining/impasse procedures conclude; (b) cease-and-desist narrowed to require meeting and conferring only upon union request before placing a City-advanced charter amendment on the ballot that affects pensions or other negotiable subjects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court should invalidate the Initiative now | Unions: this proceeding is appropriate to invalidate the Initiative; no other tribunal needed | City/Proponents: Initiative validity can only be determined via quo warranto; other interested parties may need to be heard | Denied—quo warranto is the appropriate forum; Initiative validity reserved for separate proceeding |
| Whether PERB may adopt remedies that effectively invalidate or assume invalidity of the Initiative | Unions/PERB: remedies necessary to make employees whole and restore status quo | City/Proponents: remedies improperly negate electorate’s action and exceed PERB authority | Modified—PERB may not indirectly nullify the Initiative; compensatory remedy limited to bargaining over effects and backpay until bargaining concludes |
| Scope of PERB’s cease-and-desist order (must City meet and confer before any initiative is placed on ballot?) | Unions: should require meeting and conferring before placing initiatives affecting negotiable subjects on the ballot | City/Proponents: remedy is vague/overbroad and intrudes on initiative power; City lacks discretion to alter citizen initiatives | Modified—order limited to City-advocated charter amendments placed on ballot by the City that affect pensions/negotiable subjects, and only upon union request |
| Whether initiative proponents were denied participation and entitled to relief (Perry v. Brown issue) | Proponents: exclusion from administrative proceedings violated their right to defend the Initiative | PERB: proponents had opportunities to be heard; issue moot here | Moot—proponents had chance to be heard; any participation/fee claims can be raised in quo warranto proceeding |
Key Cases Cited
- Boling v. Public Employment Relations Bd., 5 Cal.5th 898 (California Supreme Court) (affirming PERB’s finding that the City violated the MMBA by failing to meet and confer)
- Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (U.S. Supreme Court) (administrative remedies may not encroach on statutes or policies outside the agency’s enabling act)
- Voters for Responsible Retirement v. Board of Supervisors, 8 Cal.4th 765 (California Supreme Court) (discussing when state law may preempt local initiative/referendum power on matters of statewide concern)
- Perry v. Brown, 52 Cal.4th 1116 (California Supreme Court) (initiative proponents may defend validity when officials decline to do so; limited to judicial proceedings)
- Highland Ranch v. Agricultural Labor Relations Bd., 29 Cal.3d 848 (California Supreme Court) (remedy paradigm: order bargaining over effects and make employees whole when board cannot directly undo action)
- Professional Engineers in California Government v. Kempton, 40 Cal.4th 1016 (California Supreme Court) (presumption of validity for enacted initiatives and limits on judicial invalidation)