I was able to do a little more research this morning and came up with DCAA’s explanation of my rather “disjointed” post of what happened leading up to the ill-fated Prop B election. This explains the history better than I ever could (since they were THERE) and also in a layperson’s terms:
City should be worried about a “McCarthy-era trial” before PERB, lol. They put themselves in that position. I don’t understand how Sanders, acting as Mayor of SD and “private citizen” simultaneously during the gathering of support for Prop B and also in the “back room” (with City’s shills, of course, and no doubt using his staff for the supervising and verifications of the gathering of signatures), was able to “stick to his story” with a straight face in the PERB v. City case and claim he was a acting ONLY as a “private citizen,” lol.
Sanders would be just one of several witnesses called in the event of a trial in this case. I can name off a few more at the top of my head, but I’ll just leave it to the Piggs to figure out who :=]
Although it could become quite ugly, it would be a trial worth watching, that is, IF it happens and you could get a seat in there!
Unfortunately, for City, all their “sheet-rolling-partner” witnesses waiting in the hallway to be called to testify would likely be supervised by a deputy out there. And they won’t be able to listen the testimony of their brethren inside in order to preplan how to testify. It will be every man/woman for themselves, as it was in the criminal prosecutions of the SDCERS pension board a decade-plus back.
Here are some more recent links of commentary on the recent PERB decision:
This one is an excellent local Op-Ed piece by longtime attorney for the MEA, Ann Smith, who hails from THE top labor law firm in SD, IMO. I couldn’t have said it any better myself:
….If the PERB board upholds the [administrative law judge’s] decision, the same appellate court will decide whether to grant any petition for review because the city has no automatic right of appeal. If review takes place, the court will defer to the findings of fact the administrative law judge already made based on the overwhelming evidence about the city’s role in Prop. B as employer…
Here is a very informative analysis of the recent Proposed PERB Decision, written by a CA firm representing public entities, aptly describing how the ALJ came to his conclusion.
. . . Analysis
As discussed above, the ALJ was asked to determine if the City, through its agents including Mayor Sanders, violated the MMBA by failing to meet and confer with the unions about the pension reform ballot initiative. The ALJ noted that the third scenario outlined by City Attorney Aguirre, as discussed above, was directly applicable in this case. The unions argued that Mayor Sanders developed and promoted a campaign that was designed to avoid the City’s obligation to meet and confer. Further, the unions contended that the City could not avoid its duty to meet and confer on the basis that the Mayor acted as a private citizen, because the City is liable for the acts of the Mayor through the law of agency. In response, the City argued that the Mayor was acting as a private citizen and he was lawfully entitled to pursue the citizen’s initiative strategy. Therefore, according to the City, it was not required to meet and confer.
The ALJ first analyzed whether a unilateral change in the terms of employment had occurred. He concluded that a unilateral change occurred because the Mayor acted on his intention to pursue pension reform, satisfying the requirement for taking concrete steps towards implementation of a new policy.
Next, the ALJ analyzed whether the City had a duty to meet and confer because of the Mayor’s sponsorship of the ballot initiative. First, the ALJ determined that by virtue of the MMBA the City and its representatives are required to meet and confer with unions. The ALJ concluded that the Mayor is unquestionably such a representative because he acts as the City’s chief negotiator. Moreover, based on the legal principle of agency liability, the Mayor was acting with actual and apparent authority on behalf of the City. In reaching this conclusion, the ALJ determined that the Mayor was acting within the scope of his employment with the goal of improving the City’s financial health and the City Council ratified the Mayor’s actions by consenting to the initiative and placing it on the ballot. In addition, the ALJ made a finding of apparent authority based on the Mayor’s numerous public pronouncements in support of the ballot initiative, and also found ratification because of the City’s failure to repudiate the Mayor’s actions.
Significance
. . . “As the case is litigated, it will present fascinating and novel issues arising out of the tension between the duty to bargain and the constitutional initiative process.”
