John Tennant SFPOA Counsel
Auld Lang Syne
At this time of year, the words of the old Scots poem, written by Robert Burns in the late 18th Century, and sung aplenty at New Years events worldwide—or Hogmanay as it is known in the Old Country—often come to mind. They speak to the greeting and toasting of long-standing friendships and acquaintances. So here’s a raised glass to all the friends and acquaintances of this column. “Lang may yer lum reek.”
***
Moving Onward, Moving Forward
Of all the dispatches to the SFPOA membership I have written over the years, this is the single toughest. It’s because after much reflection and consideration, I have decided to leave my current vocation as a union labor lawyer and embark on a new course in what I hope to be the second half of my life and career.
One of the most important tasks any union may undertake is filing a grievance on behalf of a member. And if the union is fortunate enough to possess a clause in its labor contract guaranteeing binding arbitration as the final step of the grievance process, that task becomes all the more critical insofar as an arbitration decision will determine what for all intents and purposes is to become the “law of the workplace.”
The timing was nothing if not ironic: a broad coalition championed by labor achieves victory in lowering pension costs with the voters’ overwhelming passage of Proposition C and summary defeat of Public Defender Jeff Adachi’s draconian countermeasure, Proposition D, only to witness Governor Jerry Brown’s announcement that same week to advance his own, statewide pension reform measure which appears to work as much harm to current employees’ salaries as Adachi’s failed attempt would have done. Savoring the moment of the San Francisco public’s trouncing of Adachi proved to be an elusive plea
One of the more nettlesome questions in jurisprudence concerns the extent to which legal rights can be waived. And even if this question is answered in the affirmative with regard to a particular law, a second question instantly arises: waived by whom? While it has long been known that a police union does not have the power to waive individual officers’ rights under California’s Public Safety Officers’ Procedural Bill of Rights Act (POBRA) – say, for example, in exchange for a pay raise or benefit improvement – the law has been unclear as to whether an individual officer could ever elect
As the attacks on public employee retirement benefits continue in full force, we must be on our guard not to allow the opposition to divide rank-and-file workers from retirees. This tactic is a variation on the theme of stoking private-sector worker anger against civil servants on account of the latter’s retirement benefits (what some cynically label as “pension envy”) – anger which redoubles when cuts to public services are then threatened as a result of maintaining such benefits.
The last time I wrote about the ever-diminishing protections for public employee free speech was in the fall of 2009 – in the wake of three Ninth Circuit decisions that made a complete hash of First Amendment jurisprudence. Two recent federal cases now provide both a step forward and a step back. Given the confused state of the law on this subject, even partial progress might be considered something of an improvement.
The modern era has been described as the Age of Anxiety, fitting all too nicely with the present circumstances with which public sector workers are forced to contend. How else to describe the current situation – where it is nearly impossible to keep track of every new measure proposed at both the state and local level, either to slash retirement and other benefits or to end collective bargaining outright for public employees? In just the week since I began writing this month’s column, three new initiatives attacking public workers’ pay, benefits, and bargaining rights have been introduced
The contrast is remarkable: In San Francisco, Mayor Edwin Lee sits down and actually negotiates with his City’s labor unions over a ballot measure amending the City Charter to help get rising pension costs under control. In San Jose, Mayor Chuck Reed decides to “go nuclear,” as the NY Times put it, by vowing to declare a fiscal state of emergency and put a measure directly to the voters making sweeping changes to retirement benefits, even for current retirees and active employees, without any negotiation with the affected unions.
Because of the demands of negotiations in both San Francisco and San Jose -- aimed as they are, in part, at “pension reform,” a euphemism if ever there was one – I find myself unable this month to write a piece of the quality that I believe the reader deserves. Therefore, I offer in its place a re-print of a an article I wrote a couple of years back that should prove interesting given the current debate over what is known as the “vested rights doctrine,” i.e., the notion that certain retirement benefits are considered “vested” as such and cannot be altered by an employer. To read and com
Pages
