CAL FIRE LOCAL 2881 v. CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEMIntervener and Respondent, State of California, Supplemental BriefCal.October 26, 2018SUPREME COUNT COPY In the Supreme Court ofthe State ofCalifornia Cal Fire Local 2881,et al., Petitioners and Appellants, Case No. S239958 Vv. California Public Employees’ Retirement System (CalPERS), Defendant and Respondent, and The State of California, SUPREME COURT FILED OCT 26 2018 Jorge Navarrete Clerk Intervener and Respondent. Deputy First Appellate District Division Three, Case No. A142793 Alameda County Superior Court, Case No. RG12661622 The Honorable Evelio Martin Grillo, Presiding Judge INTERVENER AND RESPONDENT STATE OF CALIFORNIA’S SUPPLEMENTALBRIEF PURSUANTTO RULE8.520(d) PETER A. KRAUSE Legal Affairs Secretary *REI R. ONISHI Deputy Legal Affairs Secretary State Bar No. 283946 Office of Governor EdmundG. BrownJr. State Capitol, Suite 1173 Sacramento, CA 95814 (916) 445-0873 Rei.Onishi@gov.ca.gov Attorneysfor Intervener and RespondentState ofCalifornia Pursuantto rule 8.520, subdivision (d), of the California Rules of Court, Intervenor and RespondentState of California respectfully submits this brief in response to the supplementalbrieffiled by Petitioners Cal Fire Local 2881 and several of its members (together, the Union) on October5, 2018 regarding recently enactedlegislation. Senate Bill No. 1085 (Stats. 2018, ch. 893, § 1) requires a public employer to grant a public employee’s request for a reasonable leave of absenceso that the employee may “serve as [a] steward[] or officer[]” of the employee’s union. During the leave of absence, which maybe granted on “a full-time, part-time, periodic, or intermittent basis,” the employeeis entitled to full compensation and benefits, including “full service credit.”! The Union arguesthat this service credit provision is analogousto the airtime purchase offer, and showsthat the Governor and Legislature do not object to awarding service credit for time spent outside ofstate service. According to the Union, the State’s argumentthat endingthe sale ofairtime wasnecessary to restore the link between public service and pension benefits is nothing more than a “purely opportunistic”“litigating position.” (Union’s Suppl. Br. 3.) The Union’s analogyis false, and its attacks on the State specious. The distinguishing characteristic of airtimeis that it was credited to an employee in exchange for a cash payment. Thatis precisely why it was called air-time—theservice credit purchased by an employee did not reflect or correspond to any actual service. (Answer Br. 15.) To restore the link between public service and pension benefits, the Legislature needed to ' The employee continues to pay his or her memberretirement contributions during the leave of absence, while the employee’s union reimburses the employerfor all employerretirement contributions, unless otherwise provided by a collective bargaining agreement. end this scheme, and did so in a limited mannerthat protected the rights of those whoalready had paid for it. (See id. at pp. 45-47, 53.) There is no inconsistency between ending the sale of airtime and authorizing service credit under SB 1085. Unlike airtime, the service credit authorized under SB 1085 directly correspondsto time actually served representing one’s fellow employees and attempting to facilitate peaceful and fruitful employer-employee relations—“endeavors” that the Union itself asserts “are quintessentially public service,” significantly benefitting employers andsociety at large alike. (Union’s Suppl. Br. 3.) Airtime, in contrast, correspondsto no public service. It is simply purchased through a financial transaction—time for money. The Union’s false analogy thus misconstruesthe distinction between airtime and legitimate, earned service credit like that permitted by the Legislature under SB 1085.’ The Union’s argumentalso mischaracterizes the State’s position. In its Supplemental Brief, the Union suggests that the State has arguedthat “the theory of a pension system . . . require[s] that pension service credit be exclusively linked to time spent working for the State.” (Union’s Suppl. Br. 3.) This is incorrect. As stated in its Answer Brief, the State’s position is that the theory of a pension system requires pension service credit be earnedthroughpublic service, not throughservice to the State of California exclusively. (Answer Br. 45-47.) Because it correspondsto no public service and is simply purchased in exchangeforcash, airtime severs the 2 The Unioninsists that airtime—despite not correspondingto actual service—still reflects government service because employees only become eligible to purchaseit after five years of service. However, the Union confusesan eligibility requirement for consideration. (AnswerBr. 27.) Employees receive service credit for their first five years, regardless of whetherthey purchase airtime. The additional service credit that an employee is purchasing is forfictional years, separate from any years of public service. link between work performed and pension benefits. Recognizing this, the Governor and Legislature endedthe sale of airtime, and the Court of Appeal properly upheldthe legislative decision to protect the integrity of public pension systems. Dated: October 25, 2018 PETER A. KRAUSE Legal Affairs Secretary (2 __ Qui. REI R. ONISHI Deputy Legal Affairs Secretary Attorneysfor Intervener and RespondentState ofCalifornia CERTIFICATE OF COMPLIANCE I certify that the attached Intervener and Respondent State of California’s Supplemental Brief uses a 13-point Times New Romanfont and contains 661 words. Dated: October 25, 2018 PETER A. KRAUSE Legal Affairs Secretary Cex OQuv REI R. ONISHI Deputy Legal Affairs Secretary Attorneysfor Intervener and RespondentState ofCalifornia DECLARATION OF SERVICE BY U.S. MAIL Case Name: Cal Fire Local 2881 v. California Public Employees’ Retirement System No.: $239958 I declare: I am employedin the Office of Governor EdmundG. BrownJr. I am 18 years of age or older andnota party to this matter. I am familiar with the business practice at the Office of Governor Brownfor collecting and processing electronic and physical correspondence. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of Governor Brownis deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 25, 2018, I served the attached INTERVENER AND RESPONDENT STATE OF CALIFORNIA’S SUPPLEMENTALBRIEFbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of Governor Brownat State Capitol, CA 95814, addressed as follows: Gary M.Messing Clerk Gregg McLean Adam California Court of Appeal Messing Adam & Jasmine LLP First Appellate District, Division 3 235 Montgomery Street, Suite 828 350 McAllister Street San Francisco, CA 94104 San Francisco, CA 94102 Preet Kaur County of Alameda CalPERSLegal Office Administration Building P.O. Box 942707 Superior Court of California Sacramento, CA 94229-2707 County Administration Building 1221 OakStreet Nelson R. Richards Oakland, CA 94612 California Attorney General’s Office 2550 Mariposa Mall, Room 5090 Fresno, CA 93721 I declare under penalty of perjury under the lawsof the State of California the foregoing is true and correct and that this declaration was executed on October 25, 2018, in Sacramento California. Alexander Ritchie At henwl Declarant Signature
