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State court punches union-backed ‘judge’ in the head

If you’re wondering how far unions and the California officials will go to kill any reform of the state’s overburdened public pension system, wonder no more: consider instead the final chapter, last week, in a state agency’s long-running effort to invalidate San Diego’s 2012 citywide vote to reform pensions.

The good news: a California appeals court rejected the agency’s efforts last week. But it’s still shocking the agency’s officials would have even argued that a union’s right to negotiate pay and benefits trumps is the public’s right to hold an election.

The story began in 2012, when San Diego reformers collected 116,000 signatures to place Proposition B before the voters. The measure moved newly hired city workers (excluding police) from a guaranteed pension to a 401(k) retirement program. It also put a five-year freeze on payroll spending as a way to cap “pensionable pay” and reduce unfunded liabilities.

A large majority of the city’s voters, 66 percent, approved the measure. Unlike a measure that passed in San Jose on the same day and was subsequently gutted by the courts, San Diego’s did not reduce benefits for current employees and has therefore not run afoul of something known as the “California Rule.” That rule forbids officials from reducing vested benefits for government employees, even for future work.

Even though San Diego’s Proposition B has passed court muster, state officials and unions continued to fight it. The agency is California’s little-known Public Employment Relations Board (PERB), and it’s responsible for implementing various union-related statutes and remedying “unfair labor practices.” A majority of its members have worked for public-sector unions, which gives you a sense of its political tilt.

PERB entered the fight early, suing to keep Proposition B off of the ballot. That suit failed, the ballot measure succeeded wildly, and for the last five years PERB has been trying to invalidate the results of that election, based on a dubious premise. California law requires cities to “meet and confer” with public-sector unions over any proposed changes to their benefits. Because the initiative tinkers with such benefits, the agency claims that city officials were required to first negotiate with the unions over the proposed pension changes.

Their argument would have some merit had the city government placed the initiative on the ballot, but this was a citizen initiative. To get around that problem, PERB came up with a novel theory. “They argue that Proposition B is not really a citizen initiative, but is a ‘sham’ initiative placed on the ballot by ‘straw men’ acting for San Diego’s mayor who supported and campaigned for the measure,” explained then-city attorney Jan Goldsmith, in a San Diego Union-Tribune op-ed in 2012. He depicted the PERB effort as an assault on San Diegans’ constitutional rights.

The agency’s argument was built on the fact that San Diego’s mayor and two council members backed the initiative, and worked on its behalf as private citizens. Therefore, PERB argued, Proposition B needed to be treated like a city-sponsored initiative.

PERB is an administrative agency that acts as its own police force, judge and jury. Its administrative law “judge” issued a 58-page ruling determining that “the city breached its duty to meet and confer in good faith” with various unions.

The agency could have saved 57 pages of verbiage; the outcome was never really in doubt. Former San Diego councilman Carl DeMaio, a pension-reform backer, termed it a “kangaroo court,” which is an apt description of PERB and other similar administrative agencies. The “judge” is actually an agency employee. The agency is no fair and balanced arbiter of the facts, but is a union-controlled agency that advances union prerogatives.

PERB insisted that new hires in San Diego be retroactively granted those big defined-benefit pensions – plus interest. But the city appealed the agency’s decision to a real court, thus resulting in last week’s decision. “(A) city has no obligation … to meet and confer before placing a duly qualified citizen-sponsored initiative on the ballot, and only owes such obligations before placing a governing-body-sponsored ballot proposal on the ballot,” the appeals court ruled.

What about PERB’s assertion that city officials cannot ever act as private citizens? “We further conclude PERB’s fundamental premise … is legally erroneous,” the court concluded.

A PERB victory in the case would have cost the city of San Diego $20 million.

PERB’s gambit almost worked, however. As a Union-Tribune editorial pointed out, had San Diego’s city attorneys not challenged the ruling, and had its mayor and city council not voted to appeal the decision, PERB’s assault on voting rights would have stood. “Luckily, an appeals court delivered taxpayers and voters a major victory, safeguarding San Diegans’ right to limit city worker pensions – while also protecting Californians’ constitutional right to direct democracy …,” the newspaper rightly opined. So the city – and voters statewide – dodged a bullet.

The victory was sweet, but there’s something wrong with the way the system is rigged in favor of union prerogatives. We have the state using its official powers to squelch a local reform initiative. Last week for California Policy Center, I detailed how state attorneys general often give biased titles and summaries to pension reform initiatives as a way to strangle them in the cradle. It’s hard to overcome all of these official obstacles.

PERB is an annoyance, but the biggest statewide reform obstacle remains that California Rule. On that above-mentioned state Supreme Court matter, the court has agreed without comment to accept an appeal from a firefighters’ union. The union is challenging a unanimous San Francisco appeals court ruling that upheld the California Public Employees Pension Reform Act of 2013. The law mostly alters pensions for new hires, but also limits some pension-spiking gimmicks by current employees.

The firefighters claim that restrictions on “airtime” – i.e., their ability to purchase additional requirement credits – is a violation of their constitutional rights. A Marin County case also making its way to the high court involves five unions who likewise claim that other limits on pension spiking violate the California Rule. In the Marin case, a court ruled that “while a public employee has a ‘vested right’ to a pension, that right is only to a ‘reasonable’ pension – not an immutable entitlement to the most optimal formula of calculating the pension.”

If the Supreme Court agrees, that could finally whittle away at the rule. Between that and the court’s willingness to put the brakes on PERB, reformers have  reason for optimism. The good news is the result of the overreach of public-employee unions, who are so used to getting their way that they were willing to challenge the constitutional right to an election and defend the most indefensible pension-spiking gimmicks. Perhaps they’ve gone too far.

Steven Greenhut is contributing editor for the California Policy Center. He is Western region director for the R Street Institute and a columnist for the Orange County Register. Write to him at sgreenhut@rstreet.org.

California's Official Antipathy to Educational Innovation and Accountability

“With a hearing now scheduled for Aug. 21, LA Unified’s teachers union, UTLA, will have the chance to argue before a neutral party that Alliance College-Ready Public Charter Schools, violated state education law by blocking the union’s efforts to bring Alliance teachers into its membership.”
– Mike Szymanski, “UTLA outlines accusations against Alliance for anti-union efforts,” LA School Report, August 6, 2015

The “neutral party” to which Szymanski refers is California’s Public Employee Relations Board (PERB), “a quasi-judicial administrative agency charged with administering the eight collective bargaining statutes covering employees of California’s public schools, colleges, and universities, employees of the State of California, employees of California local public agencies,” etc.

“Neutral.” Really?

A quick look at the directors of PERB provides yet another example of just how stacked the deck has gotten in favor of public employee unions. Following their names are excerpts from their official biographies:

  • Anita I. Martinez, Chair, “has been employed with PERB since 1976 and was recently appointed Member and Chair. Prior to that she has served as the PERB San Francisco Regional Director since 1982.”
  • A. Eugene Huguenin, “Before relocating to Sacramento in 2000, Huguenin practiced labor and education law in Los Angeles and Burlingame for more than 20 years, advising and representing the California Teachers Association and it’s locals throughout the state.”
  • Priscilla Winslow‘s “career in public sector labor law spans over 30 years, during which time she served for 15 years as Assistant Chief Counsel for the California Teachers Association where she litigated and advised on a variety of labor, education, and constitutional law issues.”
  • Eric Banks, “served in multiple positions at the Service Employees International Union, Local 221 from 2001 to 2013, including Advisor to the President, President, and Director of Government and Community Relations.”
  • Mark C. Gregersen‘s. career in public sector labor relations spans over 35 years. Prior to his appointment to the California Public Employment Relations Board, he has served as director of labor and work force strategy for the City of Sacramento and director of human resources for a number of California cities and counties.

Just a quick scan of these biographical excerpts suggests that government unions have at least three advocates – Huguenin and Winslow, who were long-time CTA professionals, and Banks, who worked for over a decade for the SEIU. What about the chairperson, Martinez? Here’s an excerpt from Gov. Brown’s announcement of her appointment – Martinez is a long-time Democrat public employee who has spent her entire career in labor bureaucracies:

“She has worked for the Board since 1976, where she currently serves as a regional director. Previously, Martinez was a board agent for the Agricultural Labor Relations Board from 1975 to 1976. She was an intern at the National Labor Relations Board from 1973 to 1976. Martinez is a Democrat.”

What about Gregersen? Do reformers have one voice out of five on PERB? Maybe, maybe not. Here’s are excerpts from Gov. Brown’s 2015 announcement of Gregerson’s appointment to PERB – Gregersen is a long-time Democrat public employee who, among other things, presided as city manager for Vallejo throughout the 1990’s:

“He served as director of labor and workforce strategy for the City of Sacramento from 2011 to 2012 and was director of human resources for Napa County from 2005 to 2009, for El Dorado County from 2004 to 2005 and for the City of Sunnyvale from 2001 to 2004. Gregersen was  director of human resources for the City of Vallejo from 1990 to 1999. Gregersen is a Democrat.”

Not convinced yet? On another hot-button topic for government unions, pension reform, read the ultra-liberal San Jose Mercury’s take on PERB, in an article entitled “State employee panel seems stacked against San Jose pension reformers.” The title says it all.

“Neutral.” Really?

The stakes couldn’t be higher.

The fight to unionize the Alliance charter school network, the largest charter school operator within Los Angeles Unified School District and one of the largest in California, comes at a time when the growth of charter schools is reaching critical mass and constitutes a material threat to union power. As reported today in the Los Angeles Times “Major charter school expansion in the works for L.A. Unified students,” billionaire Democrat and education reformer Eli Broad is behind an effort to greatly increase the charter school enrollment in LAUSD, currently at 16% of all students.” As reported in the Times, “there was discussion of an option that involved enrolling 50% of students currently at schools with low test scores. A source said the cost was estimated to be $450 million; another said hundreds of millions of dollars are needed.”

Most charter schools are not unionized. In non union schools, the process of innovation is unhindered by union work rules, and principals and teachers alike are held accountable for the academic performance of their students. A recent “Urban Charter School Study” published by Stanford University’s nonpartisan Center for Research on Education Outcomes (CREDO) “shows that many urban charter schools are providing superior academic learning for their students, in many cases quite dramatically better.”

These findings are corroborated by a recent California Policy Center study on charter school performance, far more limited in scope, that focused on the non-union Alliance charter schools within LAUSD, comparing the performance of their students to those in traditional LAUSD high-schools in the same neighborhoods. Here is a summary of the findings:

“Comparing LAUSD Alliance charter high schools to LAUSD traditional high schools located in the same communities, we found the Alliance schools to have decisively higher API scores, 762 vs. 701, and measurably higher graduation rates, 91.5% vs. 84.1%. With respect to SAT scores, when we normalized the comparison between the LAUSD Alliance and LAUSD traditional schools under consideration to equalize the rate of participation, we found that the LAUSD Alliance students outperformed the LAUSD traditional students with average scores of 1417 vs. 1299.”

Both CREDO and the CPC found unambiguous evidence that urban charter schools academically outperform traditional public schools. The CPC study also estimated per pupil costs for Alliance charter high school students to be $10,649 per year, compared to $15,372 per year for students at traditional public high schools within LAUSD.

Facing a growing bipartisan consensus that charter schools are working and should be expanded, California’s teachers unions are fighting to unionize them. Alliance management is in for a hard fight. They face not only the might of California’s teachers unions, who collect and spend dues totaling well over $300 million every year, but the power of the state itself, in the form of a Public Employee Relations Board whose management is “stacked” overwhelmingly with pro-union directors.

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Ed Ring is the executive director of the California Policy Center.