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City Attorney: State Agency Bringing Challenge Over Pension Reform Is 'Our Adversary'

City Attorney Jan Goldsmith on Pension Initiative

Letter About Meeting Cancelation
A letter from the Public Employment Relations Board declaring a meeting about the legality of the pension reform initiative is canceled because the city of San Diego refuses to attend.
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City Attorney Jan Goldsmith told KPBS Television’s “Evening Edition” that no city officials will attend a meeting Thursday about legal challenges over the pension reform ballot initiative.

Because the city refuses to attend the meeting, which would schedule a date for a hearing over the legality of the initiative, it was canceled.


The state Public Employment Relations Board, which is suing the city of San Diego on behalf of its largest labor union, said in a letter that because the city will not attend the meeting, it will instead hold a telephone conference to set a date for the hearing.

A judge refused on Tuesday to issue a temporary restraining order that could have removed the pension reform initiative from the June ballot, but PERB plans to continue its legal challenge.

Goldsmith also told KPBS that no members of the union, the San Diego Municipal Employees Association, would be at the hearing. But Michael Zucchet, the general manager of SDMEA, said that was not true. He said the union had always planned to attend the meeting on Thursday.

City officials cannot attend the meeting, Goldsmith said, because it would be tantamount to making negotiations about the pension reform ballot initiative, which he said goes against the California Constitution.

“We cannot negotiate a change in a citizens initiative,” he said. “We can’t just sit down there and have our City Council negotiate with the labor unions, say let’s keep this in, let’s take this out. That would violate the Constitution and we’d get sued by the proponents.”


Goldsmith called PERB “our adversary” because he said they have teamed up with the labor unions. He added PERB is not serving a judicial role in this case.

“They are actually claiming that the city has an obligation to negotiate a citizens initiative,” he said.

Goldsmith said PERB’s actions in this case are unprecedented.

“PERB may be a state agency, but we’re also a local government, and PERB has sued the city and has taken sides in this case and they’re trying to create new law,” he said. “Never in the history of this state has a city, county, anybody, been required to negotiate a citizens initiative with anybody, including a legislature or a labor union. It’s the peoples’ right. I can’t interfere with that.”

Goldsmith said while he cannot negotiate the terms of the initiative, which would replace most new city hires’ pensions with 401(k)-style plans and freeze the base pay of current employees for five years, he would be happy to negotiate with the unions about their pensions.

He said the city offered to hold negotiations a year ago, but the unions weren’t interested.

“I’m not throwing barbs at them, they just weren’t ready,” he said.

The pension reform initiative was put on the ballot by a record number of signatures, about 116,000.

SDMEA first filed a complaint with PERB last month, contending the pension reform ballot initiative should be disqualified because city leaders engaged in unfair labor practices.

SDMEA’s complaint stated Mayor Jerry Sanders should not have actively supported the measure because he is a public official.

If an initiative is placed on the ballot using collected signatures, not legislation, the city can avoid the requirement that it meet with unions over changes to the pension system. Sanders has said he acted as a private citizen in his work to support the measure, but SDMEA disagreed.

“As the city’s CEO and chief labor negotiator, this mayor has used his city-paid time, resources, power, prestige, visibility and ‘good offices’ to inspire, write, negotiate, endorse and sponsor the proposed citizens initiative which he has described as his legacy as mayor,” its complaint stated.

During an “Evening Edition” interview last week, Councilman and mayoral candidate Carl DeMaio said that complaint is not valid because the measure currently headed to the June ballot is a separate entity from the one originally proposed by Sanders.

“What they’re referencing in their complaint is the wrong ballot measure,” DeMaio told KPBS. “The mayor, yes, announced he wanted to do a ballot measure in December and January of 2010 and 2011. But that ballot measure went by the wayside in favor of the citizens initiative that the broad coalition worked on.”

Zucchet called DeMaio's argument "fascinating" during an “Evening Edition” interview.

"Of all the things that’s come out of his mouth,” Zucchet said. “In January 2011, Mayor Sanders, standing behind a city lectern with a city seal at the 'State of the City' address, announced, quote, the city attorney and I, Mayor Sanders, are going to put on the ballot an initiative to eliminate pensions, go to 401(k)s, etc., etc., which is what we have today."

Goldsmith said political leaders often support ballot initiatives, and noted Governor Jerry Brown is currently supporting a ballot initiative that would raise taxes.

“This is not Jerry Sanders’ initiative, it’s the 116,000 people who filed a petition,” Goldsmith said. “They have the constitutional right, as does the mayor.”

Goldsmith acknowledged the pension reform initiative, if passed, would likely lead to continued legal battles, which could cost taxpayers money. He said he did not know if citizens, when asked to sign a petition to put the measure on the ballot, were informed of this possibility.

“I don’t know what they were told, I’m not going to speak for the proponents,” he said.

On Wednesday, a second legal challenge against the pension reform measure was also dismissed. San Diego Superior Court Judge Steve Denton rejected a lawsuit over the measure's legality, which was brought by mayoral candidate Hud Collins.

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