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San Diego Case Asks:
 Can Unions Boot Pension Reform from the Ballot?

Harold Johnson
Attorney, Pacific Legal Foundation

If taxpayers want to curb pension costs with a ballot measure, do they need an OK from unions before they start collecting signatures?

San Diego’s Municipal Employees Association seems to think so.  The MEA, which represents 6,000 workers on the city payroll, wants government unions to have a gatekeeper role in the initiative process — a right to advance review of certain ballot proposals that would affect employee benefits.

Disturbingly, the courts have declined, so far, to set the union straight.
 


Triggering the controversy is Proposition B, the pension-reform plan that San Diego voters overwhelmingly approved on June 5.

Prop. B would shrink the city’s pension-fund shortfall by switching to 401-k-style retirement plans for new hires, and capping how benefits are calculated for current employees.
 
                     

Taking the initiative – against the initiative process


A challenge was expected, but MEA’s unprecedented ploy caught a lot of people by surprise.  The union raised an eccentric procedural argument, proposing something like a panel of inquisition for certain initiatives that tinker with public-sector compensation, even if mountains of petitions from members of the public have been submitted in their support.

In an action filed with the state Public Employment Retirement Board (PERB), the union says that Prop. B should have gone through “meet and confer” discussions – i.e., the negotiation process that government conducts with labor leaders when it wants to change employee rules and regs.

Say what?   San Diegans shouldn’t have been allowed to vote on Prop. B without unions first vetting – and maybe vetoing – it?

If you aren’t scratching your head in puzzlement, you should be.    Prop. B wasn’t a piece of government legislation or an agency regulation.   The City Council didn’t put it on the ballot —  the people did.

Yes, Mayor Jerry Sanders helped lead the campaign.   The union seized on that fact to claim that he and other city officials were the real force behind the measure, so it should be treated as an official government enactment.

Wrong.  It doesn’t matter how many officeholders climb aboard a ballot-proposal bandwagon, or even if elected officials are at the wheel.  The state Constitution defines the “initiative” as the right of “the electors” – the voters – to propose new laws.  That right doesn’t depend on who drafts, sponsors, endorses, or even funds the measure.  What classifies it as a citizen initiative – a work of the public, not the public sector – is that the required number of registered voters sign petitions to qualify it for the ballot.
 
                                            

145,000 hands raised for reform


Were the 145,000 petition-signers for Prop. B all supposed to “meet and confer” with union representatives?   Qualcomm Stadium accommodates 71,500 fans for Chargers games, while 42,000 seats are available at Petco Park, where the Padres do business.   Maybe the two arenas could have been rented out for a series of mass meetings, with the union springing for complimentary beer and hot dogs, and overtime for the Padres organist?

Seriously, the notion that a citizen initiative must run a pre-election gauntlet of labor leaders or government negotiators, should have been gaveled out of court.

Unfortunately, it wasn’t.

Although a Superior Court ordered a halt to PERB’s review of the union’s complaint, that decision was reversed by the Fourth District Court of Appeal.   Because PERB has jurisdiction over claims of unfair labor practices such as “meet and confer” violations, the appellate court reasoned that the union’s case should be heard.   Besides, PERB’s final ruling can be appealed to the judiciary.

This approach would make sense for a complaint about government policy actions.   But not when it is the public that is doing the lawmaking.  In that context — the context of the initiative process — the “meet and confer” concept doesn’t compute, so PERB had no business even taking up the union’s complaint.

When voters are acting in their lawmaking role, no intermediaries can stand between them and the ballot box – not bureaucracies, not elected officials, not outside interest groups.

Consider the state Supreme Court’s strong words in Legislature v. Eu, the 1991 decision that upheld Proposition 140, limiting terms for state lawmakers.

Giving politicians prior review over ballot measures, the court said, would invert the process and subvert its purpose:

“To hold that reform measures such as Proposition 140, which are directed at reforming the Legislature itself, can be initiated only with the Legislature’s own consent and approval, could eliminate the only practical means the people possess to achieve reform of that branch.  Such a result seems inconsistent with the fundamental provision of our Constitution placing ‘[a]ll political power’ in the people.”


By the way, Prop. 140 was sponsored by an elected official (Los Angeles County Supervisor Pete Schabaram). The Eu court still recognized it as a citizen initiative, and nixed any third-party meddling with the people’s exercise of their rights.

Unfortunately, in the Prop. B case, the state Supreme Court recently declined to review the Fourth District’s ruling — passing up a chance to apply the Eu precedent to good effect.   So, PERB’s meddling continues.  PERB is still being allowed to hear the union’s complaint and second-guess the 66 percent of San Diego voters who said “yes” to pension reform.
 
                             

The courts will have another chance to do their duty


But take heart.  PERB’s power to butt in – and MEA’s startling suggestion that a union can blackball a citizen initiative, when it happens to be supported by a public official – will get another judicial hearing if, as is likely, PERB’s eventual ruling is appealed.

One of the few paths to real pension reform in this state – in fact, maybe the only path — is via the ballot box.   But can reformers be roadblocked by union “ballot measure inspectors” before the first signature-gatherer can head out to the mall?

Not if the courts do their constitutional duty by rejecting MEA’s power grab and making it clear: The initiative process is about the people’s sovereignty, not union supremacy.

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