The San Luis Obispo City Council voted unanimously in closed session Monday to appeal a recent ruling by an administrative law judge that the city must restore binding arbitration to the city’s charter.
The city was notified last week that the judge with the state Public Employment Relations Board found the city violated “meet and consult” regulations overseeing public employee unions before putting a measure on the ballot in 2011 to repeal binding arbitration.
The appeal, which must be filed by March 25, will be heard by the Public Employment Relations Board, a five-member committee appointed by the governor.
The administrative law judge’s order to restore binding arbitration will be suspended until the appeal proceedings are complete, which could take up to a year, said City Attorney Christine Dietrick.
The council also allocated $10,000 from the city’s general fund reserve to defend the appeal.
Legal experts say that the ability for a PERB ruling to invalidate a general election has never been fully litigated.
The City Council was urged Monday morning by more than a dozen community members to appeal the ruling — many of them calling the ruling an assault on their democratic rights.
The council was also flooded with dozens of emails and letters before the meeting, encouraging the same.
Former Councilman Andrew Carter, one of the leading proponents of putting a repeal of binding arbitration on the ballot, wrote a lengthy email to the current council, including his recollection of why the council proceeded to the election without conferring with the union.
“What the administrative law judge failed to note was that the ‘meet and confer’ process in San Luis Obispo at that time for public safety employees included the possibility of binding arbitration on all issues involving the employee/employer relationship,” Carter wrote.
Carter states that the public safety unions would have taken the city to binding arbitration over the issue of putting the repeal on the ballot, which would have taken years.
“I remember from council closed sessions at the time that there is a legal precedent which says getting rid of binding arbitration cannot be held hostage to binding arbitration,” Carter wrote. “That precedent is one of the reasons council chose to proceed.”
Dietrick stands by the city’s decision in 2011 to move forward with the ballot measures.
“I believe the city did comply with its legal obligations when putting the measures on the ballot and will argue that through the appeal process,” she said.
On Monday morning, no one spoke in favor of accepting the ruling, which is the other option the council faced.
About 30 people attended the meeting. Among those were members of the city’s fire union, who did not address the council during public comment before the closed session discussion.
“The PERB decision is both sound, and constitutional,” said Alison Berry Wilkinson, the union's attorney on Monday. “The City wasted taxpayer funds by prematurely placing the matter on the ballot without first meeting in good faith, and it is now further wasting taxpayer funds by filing a frivolous appeal.”
The claim alleged that San Luis Obispo used unfair labor practices by placing two measures on the ballot in August 2011.
During a special election that month, an overwhelming 70 percent of San Luis Obispo voters passed the two ballot measures. Measure B overturned binding arbitration, while Measure A allowed the city to remove a city charter section that required voter approval before retirement benefits for future employees could be reduced.
Prior to the election the San Luis Obispo Police Officers Association sought a court order to stop the election.
San Luis Obispo Superior Court Judge Charles Crandall denied the order, saying that the union's attorney, Alison Berry Wilkinson, was not able to show sufficient cause of "irreparable injury" that would warrant an order from the court preventing the council from putting the measures on the ballot.
Tim Yeung, an attorney with the Sacramento law firm Renne Sloan Holtzman Sakai LLP, represents public agencies throughout the state in labor and employment law. He reviewed the ruling at The Tribune’s request on Monday.
He said that the ability of PERB to undo the results of a general election has never been fully litigated.
“In my strong opinion, the answer is ‘no,’ ” Yeung said. “This is because PERB's statutory authority only extends to employers and employees. Once election results are certified, there is no way for the city to ‘undo’ them.”
The sole means of undoing an election would be through a writ of quo warranto, he said, which is a legal proceeding in which a government privilege is challenged.
Yeung said that San Luis Obispo’s decision to move forward with putting the ballot measure before voters was based on a court decision finding that binding arbitration procedures did not have to be bargained with unions.
Yeung is not representing San Luis Obispo. He is, however, representing the city of San Diego in a case involving a citizen’s ballot initiative to reform pensions.
“PERB’s holding that, regardless of the court decision, another section of the statute requires a city to bargain with unions over binding arbitration procedures appears to be a very aggressive reading of the statute.”