Feb. 20 2013 09:13 AM

There's no doubt that Jerry Sanders and Co. aimed to get around the law

Jerry Sanders (right), with Carl DeMaio
Photo by David Rolland

If you live in San Diego and voted last June, odds are you said yes to Proposition B, a controversial overhaul of the city's employee-pension system that passed easily despite CityBeat's passionate opposition. You may know that it's been challenged, and on Feb. 11, a judge working for the state Public Employment Relations Board (PERB) issued a major condemnation of the measure, ruling that it violated state labor law.

As expected, U-T San Diego, in an editorial, quickly dismissed PERB as a "union front" and anticipated a different result when the matter goes to a "real judge." The editorial didn't even manage to break the seal on the PERB judge's reasoning; doing so would have required the writer to think past his blind contempt for unions.

We don't know what an appellate judge will do. What we do know is that the PERB judge confirmed our assertion that Prop. B was, at least, a brazen attempt to get around the spirit of the Meyers-Milias-Brown Act (MMBA), which requires local governments to first negotiate with employees before asking voters to make substantial changes to retirement benefits. Former Mayor Jerry Sanders has admitted as much, in a December 2011 interview with CityBeat and in court.

He and City Attorney Jan Goldsmith simply believe that the law allowing private citizens to launch initiatives without triggering negotiations lets them get around the MMBA. All they had to do was say that Sanders was acting as a private citizen and get three of his friends to put their names on the initiative. But there's no way they can keep a straight face and make the argument that Prop. B wasn't an official city policy proposal thinly disguised as a grassroots citizen campaign. How Prop. B came to be is laid out plainly in the narrative section of the PERB ruling.

Sanders won major concessions from the unions on retirement benefits in 2008 by threatening a ballot measure, forcing the unions to the table to bang out a compromise. Amid that effort, then-City Attorney Mike Aguirre issued a legal opinion stating that such negotiations were required by law before a measure could be put on the ballot. It all played out the way it was supposed to. With the unions' help, the city lowered taxpayer costs.

In 2010, with the city still in financial trouble because of the recession, voters overwhelmingly rejected Prop. D, Sanders' proposal to raise the sales tax. In response, he and City Councilmember Kevin Faulconer devised a plan to ask voters to change the retirement system from a guaranteed-benefit plan to more of a 401(k) system, because they assumed the unions wouldn't play ball this time.

Along came noisy Councilmember Carl DeMaio, who'd been dreaming up his own pension overhaul that went further than Sanders and Faulconer's. The powerful, conservative Lincoln Club and the San Diego County Taxpayers Association sided with DeMaio, forcing Sanders to cut a deal with DeMaio on a single initiative that carried some provisions Sanders didn't want. Ironically, Sanders thought one of DeMaio's provisions wouldn't pass legal muster.

Sanders said in court that he never read Aguirre's opinion, but Goldsmith obviously told him that he couldn't legally go straight to the voters, because at some point in the process, Sanders started saying he was exercising his right to pursue direct democracy as a private citizen. Yet, he campaigned for the measure using the full force of his stature as mayor of San Diego, not to mention the paid time of his communications staff, who helped sell the measure to the public through the press.

The bottom line is that Prop. B wasn't hatched by citizens who were outraged by San Diego's pension system. The heavy lifting on pension-cost savings was done in 2008, but no one noticed. Prop. D's failure told Sanders that he needed to do something splashy to convince the public that he was reining in spending. The whole thing was concocted and engineered as official city business by the Mayor's office.

Again, we don't know how a "real judge" will rule. But if that judge concludes that Prop. B was legal, it'll provide a clear roadmap around state law for any city that doesn't want to bother with messy negotiations with its employees.

What do you think? Write to editor@sdcitybeat.com.


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