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Counsel's Corner - July 2012

July 1, 2012
SFPOA Counsel

This first column begins with a tribute to my friend John Tennant.  San Francisco Police Officers’ Association has been served, for the past five+ years, by a giant in the field of California public sector labor law.  John, a classmate of our current president at law school, could have worked in any field of law, and for any law firm he wished.  Yet he chose to dedicate his legal career to representing working men and women in public safety.  And he has done so with courage and integrity ever since.  As we on the union-side of the profession do our small part to protect “the protectors” against the ongoing legal and political onslaught public sector unions face, we miss him directly by our side, but will be fortified by the example he set us.  As John now pursues his dreams in academia, we wish him the very best.

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It is an extraordinarily challenging time in public sector labor relations.  The right wing of the nation’s political spectrum has firmly targeted public sector employees, their pensions and their collective bargaining rights as the ills most afflicting our economy.  Unfortunately their assaults are being echoed increasingly by mainstream commentators. 

 

I learned my craft from some of the best public sector lawyers our state has produced.  They, and the hard working folks they represented, had unparalleled success—overcoming failures along the way—moving forward, over the course of four decades, the wages, benefits and working conditions of public sector employees.  In discussions with retirees, I am reminded of the days when many cops and firefighters worked two jobs to make ends meet; when 1¼ % at 60 was the going retirement benefit.  Now, it seems, many want to take public employees backwards to something more approximating those times.

 

San Francisco sometimes seems a world apart from the turmoil elsewhere.  The Charter, for the most part, protects decent, collaborative labor relations.  The City’s citizens remain respectful and supportive of the role labor unions play in creating a more just society.  And within these parameters, the POA, through strong leadership and the hard work of its members, and good relations with City government, has brought enviable increases in wages and benefits and better working conditions. 

 

But it is certainly no time to be resting on our laurels.  As Wisconsin, San Diego and San Jose showed, public sector unions face near existential threats.  Voters in San Diego were persuaded, notwithstanding the financial collapse of 2008 and its destructive effect on the retirement savings of private sector employees, to permit new city employees—except police officers, for now—to receive only 401k retirement benefits—a race to the bottom of sorts.

 

Traveling from San Francisco to represent the men and women of the San Jose POA—perhaps a modern day version of the worst of times and the best of times in Dickens’ Tale of Two Cities—one finds a Mayoral junta hell-bent on taking on 65 years of California legal precedent that says:

 

there [are] strict limitation[s] on the conditions which may modify the pension system in effect during employment. Such modifications must be reasonable and any changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.

 

Unlike San Francisco’s Proposition “C” example, where labor and city government came together and produced meaningful, sustainable—and legal—pension changes, San Jose’s Measure “B” finds itself condemned to the court house for years to come, while its police officer ranks atrophy to unsustainable numbers.       

 

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Only last week, we were reminded of how all-encompassing is this attack on public employees.  In Knox et al., v. SEIU, Local 1000, 567 U.S. ___ (2012), a narrow United States Supreme Court majority signaled its intentions to overturn decades of settled law on the rights of public sector unions to recover so-called fair share fees from employees who enjoy collectively bargained wages and benefits but do not want to support the unions who obtained such remuneration for them. 

 

The basic majority ruling (supported by 7 of the 9 justices) was that whenever a public sector union imposes an unexpected dues assessment to meet expenses not previously disclosed (in this case it was dues raised by SEIU to fight against Governor Schwarzenegger’s 2005 Special Election initiatives) it may not exact any funds from nonmembers without their affirmative consent, in order to comply with the First Amendment. 

On a practical level, the decision is troubling enough.  But of perhaps as much concern to labor-side union lawyers was the fact that the five-justice conservative block on the Court used the narrow case as an opportunity to opine on far broader issues pertaining to fair share fees.  Primary amongst this was the basic concept, which has stood for decades, that non-members must opt-out of paying union dues.  The majority criticized this alleged “remarkable boon” to unions, and suggested it was a “constitutional anomaly,” signaling their willingness to rewrite agency fee law if given another opportunity to do so.   

The majority also challenged the almost universal practice by unions of using the prior year’s chargeable expenses to calculate the agency fees for the next year (unions typically refund any overcharge).  The majority suggested this, too, was problematic on First Amendment grounds.  Justice Sotomayor, who supported the Court’s ruling (but not necessarily the majority’s rationale), was so troubled by the majority opining on issues not before it that she authored a strongly-worded concurrence, criticizing the majority as violating the basic tenants of Supreme Court procedural law in weighing in on issues that were not actually before them.  The next installment will surely be written soon.

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Finally, it is a tremendous professional privilege for my firm and me to have the opportunity to work on behalf of the fine men and women of the San Francisco POA.  I look forward to our journey ahead.