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State judge tosses SLO ballot measure, restores binding arbitration

March 7, 2014
Christine Dietrick

Christine Dietrick

A California administrative law judge has overturned the results of a 2011 city of San Luis Obipso election that eliminated binding arbitration for police officers and firefighters.

Last week, California Public Employment Relations Board (PERB) Judge Valerie Pike Racho voided the results of Measure B, which passed with 73 percent of the vote in Augusts 2011. Measure B eliminated binding arbitration from San Luis Obispo’s charter. Racho’s decision restored binding arbitration to the city charter.

After the passage of Measure B and Measure A, a pension reform initiative, the San Luis Obispo Police Officers Association (SLOPOA) filed an unfair practice charge with PERB. The POA asserted that the city did not uphold its duty to bargain prior to sending the binding arbitration issue to the voters.

The POA promoted binding arbitration after its representatives and the city failed to agree on negotiations regarding multiple issues. For example, union representatives argued to require the city to provide one year of health benefits for family members of police officers or firefighters killed on the job. The request was denied.

On Feb. 28, Racho upheld the results of Measure A but overturned Measure B, ruling that the city violated the California Meyer-Milias-Brown Act by failing to make a good faith effort to negotiate with the POA prior to placing Measure B on the ballot.

“The city had an affirmative duty to consult in good faith with the POA before it introduced Measure B to the voters,” Racho wrote in the ruling.

City Attorney Christine Dietrick argued that previous court rulings exempted the city from needing to negotiate prior to the election. The POA also waived its right to bargain by repeatedly delaying discussions, Dietrick argued in the PERB case.

The city attorney likewise claimed that San Luis Obispo can amend its charter with voter approval. Racho ruled, though, that California general law trumps local measures.

Racho’s ruling found Measure A exempt from the pre-election negotiation requirement because the initiative in itself did not change employee benefits.

Measure A amended the charter to eliminate the city council’s need for voter approval to alter or terminate its contract with CalPERS, the state’s retirement system. Measure A passed with 74 percent of the vote, and the council later negotiated pension cuts for city employees.

The city has 20 days to appeal Racho’s ruling. The council will meet in a special closed session hearing Monday to discuss the matter.

 


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I’m going to venture into what will likely be an “unpopular” opinion in this forum—defending city attorney Christine Dietrick—but please entertain me thoughtfully:


I have been no fan of management salaries (I have spoken in opposition to Lichtig’s salary, Deitrick’s raise, and management raises in general). Furthermore, I outspokenly opposed the council decisions that led us to lose the Homeless Alliance case. Make no mistake that the city council ultimately makes all choices to pursue or not to pursue litigation.


In this case, I am unable to agree that Dietrick posited bad advice (much less “cracker jack” advice) for the following reasons:


(1) The City of SLO successfully defended the Police Officers Association (POA) suit to obtain a TRO (Temporary Restraining Order) to prevent the Measure B election. SLO Superior Court Judge Charles Crandall DENIED the POA’s petition in May 2011 with Ms. Dietrick representing the city.


(2) I have read the PERB administrative law judge’s opinion (proposed decision) in its entirety and am studying its underlying legal authorities in detail. The PERB proposed decision has a number of very significant flaws, in my opinion.


(3) PERB does not have authority or jurisdiction to order an amendment to our city charter. Administrative Law Judge Valerie Pike Racho greatly overstates and misconstrues PERB’s authority in my view. Racho believe PERB’s authority expands even into legislative acts (amending law). I am convinced it does not, which I explain in detail in my forthcoming letter to the city council—which will be on the public record and available for all to read (and agree/disagree with).


(4) NUMEROUS cases are heard by PERB each year, and it is not at all uncommon for PERB to disagree with a city’s position. This is no indication that the city attorney gave “bad” advice, for three reasons: (a) Legal opinions are simply opinions based on best understanding of current statutes and case law. Many times, new statutes or theories are untested in a court of law and can be interpreted in many different ways; (b) Judge Racho’s “proposed decision” is just another legal opinion like any other. I find her theories on the authority of PERB very lacking; (c) PERB is not a court of law. PERB is an administrative agency employing administrative judges who often have a very pro-labor biased background. PERB is about the most union-friendly venue one could have a case heard.


(5) Judge Racho’s decision could easily be overturned by higher authority. Racho is attempting to set an unheard of precedent (no administrative body has ever overturned a ballot initiative).


(6) Many of city attorney Dietrick’s defenses were upheld by Judge Racho, who dismissed numerous allegations in the POA complaint.


Simply stated, Judge Racho’s opinion almost certainly cannot survive the judicial scrutiny of an appeal.


The question remaining is, will the city council appeal? You can write the council to weigh in: http://www.slocity.org/citycouncilmembers.asp


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If there is any wonder why legal advice at the City of SLO is like advice from a cracker jack box here is a quote from Dietrick on here linked page


“Christine Dietrick I share Ms. Slaughter’s perspective that work-life imbalance and sacrificing all on the altar of one’s career is neither admirable nor sustainable.”


Like so many in SLO Government Dietrick is there to get the biggest pay for the least amount of work. At $180k in pay a year alone, one should commit to a 70 hour work week. Codron, David are two more examples, they spend their weekends playing in their band. So the question is, do they want to be City administrators or performers or are they simply performing to get the check and nothing else?


We get what we pay for, people who chose public service to work as little as possible and get all the perks.


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The public safety employees are probably very excited about this. Don’t be. Binding arbitration is gone and will not be coming back. You may think you have a way to get it back by playing the process, but the people have spoken. You are simply not listening, still. No matter which way you attempt to turn in this game, you will find a much stronger opposition standing in your way. You *cannot* win, so how about you save us all a lot of time and walk away before you upset the little support you have that was able to keep salary cuts from being part of package.


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Mkaney……ohhhh, you are soooo scary! I’m sure they are shaking in their boots. Lololololol!


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And it’s exactly the attitude you have that is causing the public to realize what a bunch of *holes we have in public safety. I’m not trying to be scary, I’m trying to be matter of fact. They should be GRATEFUL for what they’re getting, and the people who’s tax money they are spending do not appreciate the fact that they aren’t.


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what ABOUT the HOLES that run the city ?


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Don’t be confused. The public is pretty well aware of that too and they are not exempt from the house cleaning… one thing at a time.


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Mkaney……ohhhh, you are soooo scary! I’m sure they are shaking in their boots. Lololololol!


You proud MF AS with your secure salary and benefits and prestige for own family, You think, you assume, you believe that your promoting justice and doing right but when you are taking away family’s abilities to provide themselves and when they cannot the resultant justify more of your grandeur enforcement and justice. Not so much your arrogance but your refusal to see the unconstitutional over taxation on the middle class, I say and wish your family suffer hell. The poor will never have to pay anything, they serve the time or do community service.


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Sir before you try to come at people with personal information that you do not even have correct, you should consider posting with your real name, last name included. I have no “secure salary and benefits.” I am a consultant and I pay for my own insurance. I am not AT ALL saying that we should take away any family’s ability to provide for themselves. This rhetoric of nonsense is being thrown around again, Expecting a public safety officer to live within their salary range and not collect overtime that blows their yearly pay up to over $120k is not at all unreasonable.


Furthermore, I DO see the unconstitutional over taxation on the middle class of which I am one. Clearly you seem to think I make a great deal more money than I do. You are a rude, hateful character to directly say and wish hell on any family. But it’s ok, I will not take your ignorance personally.


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I’m sorry Willie I thought your comment was to me. I realize now it was to slo jo.


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Mkaney……ohhhh, you are soooo scary! I’m sure they are shaking in their boots. Lololololol!


At this point in time, I can assure your the public, young and old are not naive, they know its all about illegal money but made legal in the name of justice and safety.


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With all the heightened taxes about us, the heightened high fines and citations, and heightened vehicle fees, the government budget deficit resolve is to gradually put people more debt and or bankruptcy.


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So why are you hating on me when we do not seem to disagree about public servants stealing money from us?


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whether heightened costs all about us are proper or improper, justified or not, the high cost amounts to over taxation!


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I am against this decision but how many times is the City Attorney going to give bad legal advice to City Council before they fire her. Last time it cost the City $500k, how much in attorney’s fees are we going to pay for this one. The City Attorney in Morro Bay was there for 20 years and never lost a case but they him. Our City Attorney keeps losing and nothing happens.


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This is delicious, well-deserved blowback for the city of SLO. Some history: binding arbitration was placed on the ballot as an initiative by petition of the people after the city refused to negotiate in good faith with police and firefighters, and those safety employees asked the citizenry at large for their support. It was passed by vote of the people, over city council opposition. Touche. So the city honchos were against it from the beginning. After several years of peaceful labor negotiations, along comes a really obnoxious police negotiator who used binding arbitration to screw the city and ruin everything, which created a huge backlash. So the brilliant ones on the city council said “Why not put it back on the ballot?” They were advised by many that this wasn’t a good idea, that the matter should get back on the ballot only by the same means it got on the ballot in the first place — by citizen initiative petition. (There was surely enough support to do it that way.) Oh, no, said the brilliant ones; we’ll do it ourselves. Of course, doing that violated state labor law by the city — being the employer of those covered by binding arbitration — then being justifiably accused of refusing to bargain in good faith, the same issue that had led to binding arbitration in the first place. Now we have this labor judge doing what the civil judges wouldn’t do — invalidate the ballot measure the city council put on the ballot.


Serves the city right.


As for the politics, the city claimed binding arbitration was costing it too much, so it appealed to citizens to let them cut fire and police pay and benefits. When the people voted to do that, do you suppose they thought it a good idea so the city could then boost salaries and benefits for the top honchos, and to give developers millions of dollars in subsidies, which is what they’ve done with city funds since Measure B passed? I doubt it.


A well-deserved slap for this city attorney and city administration and city council.


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I won’t challenge your opinions, however you are incorrect on the most important fact: The administrative judge DID NOT invalidate the ballot measure, NOR is it within the authority of this administrative judge OR EVEN the city council to do so.


I’m no fan of current city management, but I fail to see where the “slap” exists.


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The Slap is we have to pay the union their attorneys fees for bad advice given by Dietrick. It just keeps happening.


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Human Reason,


You are so right, however, for administration to take action they risk being exposed for all their incompetent decisions. Dietrick didn’t make this decision on her own, she just gave incompetent advice, but it was the advice Litchig, Codron and Council wanted. If you look back over the past few years the utter incompetent decisions keep piling up. They all need to go and it needs to be a public event.


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You are so utterly wrong on how this story goes it’s ridiculous. The devil is always in the details. The police and firefighters unfairly manipulated the public perception into thinking that the take home pay of these individuals was much lower than it was when overtime and other add-ons were counted in. When the numbers came out and the state controller published actual payments, the people became incredibly ticked off and rightly so. The city council members who put it back on the ballot did so at the bidding of the people, who wanted the issue addressed IMMEDIATELY.


That is the truth. Truth is something that our so called public servants seem unable to grasp anymore. But the people are on to the lies and don’t think there is any victory here for public safety employees. We will make sure that binding arbitration remains a thing of the past. You clearly have no idea what kind of power and support stands behind that.


Our city attorney is COMPLETELY incompetent and needs to be fired for losing this case. Her performance does not justify her salary, but we already knew that.


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Someone should check into the political contributions that this Judge has received? Like most politicians the elected will usually roll over for support from fire and police associations in order to get their support at election time.


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Are you serious? That’s all you got?


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Yes I’m very serious. Why do you think most cities in California are having financial difficulties? Fire and Police retirement and benefit packages are at the top of the list. And then ask yourself who has the final approval vote on these issues?


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Well MR HOLLY why don’t you try out either job fire or PD and see what you think , its easy for all you folks that have no idea of what these guys go thru every day to keep you comfy and cozy , like the old saying goes , DONT CRITICIZE TILL YOU WALK A MILE IN THEIR SHOES , NUF SAID crawl back in your hole


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By all means lets keep police and fire personal salaries and benefits where they are, or even increase them at the continued expense of the budgets, and ruin the financial health of cities, county and the state and all the while cutting all other services, and stop all infrastured improvements because there is no money since it has gone to salaries and benefits


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Did it for many years, that”s why I know how it functions.


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Then you of ALL people should be able to recognize the crooked politic of the city manager and the rest of the bunch that are running the city , im so glad I have retired and don’t have to put \up with the B.S.,AND KEVIN can,t you READ


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i do!


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I hope you are not LEO, as your spelling (reports) and temper (guns) is unsettling.


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Well excuse me Mr. Brillance. I guess we all can’t be perfect as you self proclaim yourself to be.


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Holly: Reply was to jarhead, and I never made any such proclamation.


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Apology accepted. Thought you met me.


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Surprising that Holly gets about 50% thumbs down when he says public employee retirement benefits are at the top of the list of taxpayer/city expenses?


Must be a lot of retired people with fat pensions thumbing him down.


You can read about these $ 100,000-plus on line on several web sites: one is

http://www.fixpensionsfirst.com/calpers-database


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Well here is another victory for the welfare state. The overpaid will be highly overpaid until the reach 50 and can get 90% of their salary and free medical (unless they go out on permanent disability at 35)


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