SUPREME COURT FILED AUG 2 4 2017 IN THE SUPREME COURT OF CALIFORNIA Jorge Navarre.e Clerk Case No.: 8242034 Deputy Court of Appeal Consolidated Case No.: D069626 a CATHERINEA. BOLING,ET AL. and CITY OF SAN DIEGO, Petitioners, Vv. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, SAN DIEGO MUNICIPAL EMPLOYEESASSOCIATION, DEPUTY CITY ATTORNEYSASSOCIATION, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127, SAN DIEGO CITY FIREFIGHTERS, LOCAL 145, IAFF, AFL-CIO Real Parties in Interest. AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE Consolidated Case Nos. D069626 and D069630 OPENING BRIEF ON THE MERITS BY ALL UNION REAL PARTIESIN INTEREST Ann M. Smith, Esq, SBN 120733 Smith, Steiner, Vanderpool & Wax, APC 401 West A Street, Suite 320 San Diego, CA 92101 Telephone: (619) 239-7200 Email: firstname.lastname@example.org Attorneys for Real Party inInterest San Diego Municipal Employees Association IN THE SUPREME COURT OF CALIFORNIA Case No.: S$242034 Court of Appeal Consolidated Case No.: D069626 e CATHERINEA. BOLING, ET AL. and CITY OF SAN DIEGO, Petitioners, Vv. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION, DEPUTY CITY ATTORNEYS ASSOCIATION, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127, SAN DIEGO CITY FIREFIGHTERS, LOCAL145, IAFF, AFL-CIO Real Parties in Interest. AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATEDISTRICT, DIVISION ONE Consolidated Case Nos. D069626 and D069630 OPENING BRIEF ON THE MERITS BY ALL UNION REAL PARTIES IN INTEREST Ann M. Smith, Esq, SBN 120733 Smith, Steiner, Vanderpool & Wax, APC 401 West A Street, Suite 320 San Diego, CA 92101 Telephone: (619) 239-7200 Email: email@example.com Attorneys for Real Party in Interest San Diego Municipal Employees Association Fern M.Steiner, Esq, SBN 118588 Smith, Steiner, Vanderpool & Wax, APC 401 West A Street, Suite 320 San Diego, CA 92101 Telephone: (619) 239-7200 Email: firstname.lastname@example.org Attorneys for Real Party in Interest San Diego City Firefighters Local 145, IAFF, AFL-CIO Ellen Greenstone, Esq., SBN 66022 Rothner, Segall and Greenstone 510 South Marengo Avenue Pasadena, CA. 91101-3115 Telephone: (626) 796-7555 Fax: 626-577-0124 Email: email@example.com Attorneys for Real Party in Interest AFCSME, AFL-CIO,Local 127 James J. Cunningham, Esq., SBN 128974 Law Offices of James J. Cunningham 4141 Avenida De La Plata Oceanside, CA 92056 Telephone: (858) 565-2281 Email: firstname.lastname@example.org Attorneys for Real Party in Interest Deputy City Attorneys Association of San Diego TABLE OF CONTENTS Page ISSUES PRESENTED .... 0.200.002 cece etn teenies 14 FACTUAL AND PROCEDURAL SUMMARY................44. 14 I. The Parties 0... 0... cece ceee cen eens 14 Il. The Underlying Facts... 20.0.0... 0. ccc ee eee 16 A. By Charter Mandate, the City of San Diego’s “Strong Mayor” Serves As City’s Chief Executive Officer and Chief Labor Negotiator .... 16 B. The Mayor’s “Temtative Agreements” With Recognized Employee Organizations Are Submitted to the City Council ................. 18 C. City’s Course of Meet-and-Confer Confirms the Mayor’s and City Council’s Respective Roles Under the MMBA.......... 0.00... 19 1. Charter Armendments For the November 2006 Ballot ........... 0.0.0. ce eee 19 2. A New Defined Benefit Pension Plan For New Hires ............ 000 cee ee eee eee 19 3. “Tentative Agreements” on Compensation Reductions,Firefighters’ Pension Formula, and Retiree Health Benefits .............. 20 D. Meanwhile, the Mayor Unilaterally Made and Implemented A P olicy Decision to Seek 401(k) Pension Reform By Use ofA Citizens’ Initiative To Avoid Bargaining ................ 0. eee ee 21 l. Joined By City’s Chief Operating Officer and the City Attorney During A City Hall Press Conference, The Mayor Announced His Decision ........... 000.002 eee eee 21 2. The Mayor Announced His Policy Decision Directly to the City Council When Delavering His Charter-Mandated “State of tlhe City” Address .............. 25 E. Having Failed to Initiate Any Good Faith Meet-and-Confer Process Over the Mayor’s 401(k) Policy Decision, the City Refused All Demandsto Bargain .......Sette teeter tees 29 Il. Procedural History .... 18.104.22.168... 02.000 e eee eee eee 32 A. PERB ProceedingsBefore “Stay” Ordered ....... 32 B. Court Proceedings............ 0.2.0.0... 0-0 32 C. Administrative Hearing and ALJ’s Proposed Decision ...... .. eee ee eect eee 33 D. Board Decision . ............ 0.0 c eee eee eee eee 34 E. Pre-Opinion Proceedings in the Court of Appeal .. . 34 F, Court of Appeal Opinion ..................... 35 G. Petitions for Rehearing Denied ................ 36 ARGUMENT................O 36 I. In Furtherance of Statewide Objectives, The MMBA Is Intended to Foster Communication, Dispute Resolution and Agreement Between Public Agencies and Recognized Employee Organizations ............. 36 Il. A. PERB’s Role As An Expert, Quasi-Judicial Administrative Agency Is To Enforce the MMBAOnA Uniform, Statewide Basis Consistent With Its Legislative Objectives ....... 37 B. The Centerpiece of the MMBAIs A Public Agency’s Duty To Bargain In Good Faith Established By Section 3505 .................. 38 By An Unprecedented Rejection ofPERB’s Role Asthe State’s Expert Labor Relations Agency, Boling Applied De Novo Review to Annul PERB’s Decision Based On A New Construction of the MMBA Unmoored From Five Decades of Judicial and Administrative Precedent ..................0005. 40 A. Deference to PERB’s Agency Determinations Is Fundamental to the MMBA ................. 40 B. Boling’s Sua Sponte New Construction of the MMBAIs Contrary to Its Text, This Court’s Precedent Interpreting It, and the MMBA’s Legislative Goals ......... cece ee eee 42 C. Boling Imperils the MMBA and PERB’sRole In Enforcing It 2 2...eeeeee 47 D. Statutory Agency: Boling Erred In Rejecting PERB’s Determination That City’s MayorIsIts Statutory Agent Under MMBASection 3505 ..... 50 1. PERB Applied Section 3505’s Express Termsto Find That City’s MayorIs A Statutory Agent With A Duty to Meet-and-Confer ..............2.000005 50 2. Boling Rejected the Provisions of Section 3505 Establishing That Public Agencies Bargain Through Statutorily-Designated Agents 2...ccceee eee 51 Common Law Agency: Boling Erred In Rejecting PERB’s Common Law Agency Findings Within the Scope of Its Expertise ....... 53 1. PERB Applied Common Law Agency Principles Consistent With Precedent and the Statutory Scheme ................... 54 Invoking the General Expertise of Courts In Applying the CommonLaw,Boling Erroneous]Ly Re-construed the MMBA to Reject PERB’s Common Law Agency Findings . 20... .. 2... cee ee ee eee ee 57 Ratification: Having Exempted the Mayor From Any Meet-and-Confer Duty, Boling Erred In Concluding the City Council Had No Duty to Act .. 0. 2... cee ee eee 59 1, City Violated the MMBABythe City Council’s Unfair Practice Conduct As A Statutory Agent Under Section 3505 ..... 59 Based On Its Conclusion That City’s Mayor Had No Duty to Meet-and-Confer Under Section 3505, Boling Concluded That Its City Council Likewise Had No Duty .... eeeeeeens 62 City’s Duty to Meet-and-Confer Over Mandatory Subjects Did Not Implicate Local Initiative Rights ........ 2... .. 0.0 eee eee 63 1, City Had A Duty To Engage In Good Faith Meet-and-Confer Which May Have Led To A City Council-Sponsored Alternative to CPRI or A Competing Ballot Measure .......... 0... c eee eee 63 2. Boling Again Relied On A New Construction of Section 3504.5 to Reframe the Unfair Practice Conduct At Issue, Reject PERB’s Determinations Regarding the City Council’s Role, and Further Eviscerate the MMBA.................. 64 III. By Rejecting PERB’s Decision Harmonizing the Tainted Exercise of LocalInitiative Rights With Rights Guaranteed by the MMBA,Boling Has Sanctioned Government’s Use of Citizens’ Initiative To Avoid Meet-and-Confer ..... 20...ceceee 66 CONCLUSION ... 0...eececeene aes 71 CERTIFICATE OF COMPLIANCE PURSUANTTO CALIFORNIA RULES OF COURT, RULE8.520(c )(1) and (3) .....--.eeceeeceeee 73 TABLE OF AUTHORITIES State Cases Page(s) Banning Teachers Assn. v. Public Employment Relations Board (1988) 44 Cal.3d 799 2... eeceee ee 38, 42, 49 Boling v. Public Employment Relations Bd. (2017) 10 Cal.App.Sth 853 2...eeeeee passim Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651 0...cecee eee eee 43 Butte View Farmsv. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961... eeceeee tenes 41 Claremont POA v. City ofClaremont (2006) 39 Cal.4th 623 ..... 39, 43 Coachella Valley Mosquito and Vector Control Dist. v. PERB (2005) 35 Cal.4th 1072 2...eeeens 15, 54 Cole v. City ofOakland Residential Rent Arbitration Bd. (1992) 3 Cal.App.4th 693 2...ceeee es 43 County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905 2... cece ee eee ee 38, 39 Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575 ... 40 Dublin Prof’l Fire Fighters, Local 1885 v. Valley Comm. Svs. Dist. (1975) 45 Cal.App.3d 116 2... ieceene eens 61 Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 ........ 37 Glendale City Employees Ass'n v. City ofGlendale (1975)15 Cal. 3d328 2... eeee eee ee 36, 37, 39, 43 Howard Jarvis Taxpayers Assn. v. City ofRoseville (2003) 106 Cal.App.4th 1178 2... eece teen ee 64 Howard Jarvis Taxpayers Assn. v. City ofSan Diego (2004) 120 Cal.App.4th 374 2...c ee eee 64 Huntington Beach Police Officers’ Assn. v. City ofHuntington Beach (1976) 58 Cal.App.3d 492 2...cctees 44 Independent Union ofPub. Service Employees v. County of Sacramento (1983) 147 Cal.App.3d 482 2.0... . cece ees 44 Inglewood Teachers Assn. v. PERB (1991) 227 Cal.App.3d 767 2... 2... eee ee ee eee 41, 53, 54 Internat’! Assn. ofFire Fighters Union v. City ofPleasanton (1976) 56 Cal.App.3d 959 2.0...eeee ees 48 Int’l Ass’n ofFire Fighters, Local 188, AFL-CIO v. PERB (2011) 51 Cal.4th 259 2...eeeen 38, 39 Int’l. Fed. ofProf. and Technical Engineers v. Bunch (1995) 40 Cal.App.4th 670 20... eees 66 Jeffrey v. Super. Ct. (2002) 1002 Cal.App.4th 1] ..............0... 64 Johnson v. Monson (1920) 183 Cal.149 2.2...ce 55 Lantz v. Workers’ Compensation Appeals Bd. (2014) 226 Cal.App.4th 298 2...ceces 40 Long Beach Police Officer Assn. v. City ofLong Beach (1984) 156 Cal.App.3d 996 2.0... eeeeee 44 Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55 2... e 37, 39 Los Angeles County Employees Assn., Local 660 v. County of Los Angeles (1973) 33 CalApp.3d 1.2... 0... cece ees 61 Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191 2.0... 0.2.0.0... ce eee ee 41 Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178 ........... 0. 0.00.000. 41 People ex. rel Seal Beach Police Officers Ass'n v. City of Seal Beach (1984) 36 Cal. 3d 591 2... eee ee eee 39, 66-71 PERB v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881 ..... 44 Regents ofthe University ofCalifornia v. PERB (1986) 41 Cal.3d 601 . 41 Sammis v. Stafford (1996) 48 Cal.App.4th 1935 ..............00. 59 San Diego Housing Commission v. PERB (2016) 246 Cal.App.4th 1 oo...eecee 40, 46 San Diego Municipal Employees Assn. v. Super. Ct. (2012) 206 Cal-App.4th 1447 2.0...ceeee 33 San Diego Teachers Assn. v. Super. Ct. (1979) 24 Cal.3d 1 ......... 37 San Francisco Firefighters v. Bd. ofSupervisors (1979) 96 Cal.App.3d 538 2... ceceee eee 66 San Mateo City School Dist. v. Public Employment Relations Board (1983) 33 Cal.3d 850 2...ceeeen ee eee 37 Santa Clara County Counsel Attorneys Ass'n v. Woodside (1994) 7 Cal. 4th 5525 eeenee 38, 39 Solano County Employees’ Assn. v. County ofSolano (1982) 136 Cal-App.3d 256 2...ceeee eee 44 Superior Farming Co. v. ALRB (1984) 151 Cal.App.3d 110 ......... 55 Telish v. California State Personnel Bd. (2015) 234 Cal.App.4th 1479 . 41 Van’t Rood v. County ofSanta Clara (2003) 113 Cal.App.4th 549 .... 55 Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802 ... 48 10 County ofSan Bernardino (Office ofthe Public Defender) (2015) PERB Decision No. 2423-M ......... 0... cece eee 45 Regents ofthe University ofCalifornia (2005) PERB Decision No. 1771-H.. 2.2...eee 54 Statutes Civ. Code § 2317 2...cceeeeens 55 Civ. Code § 2330 2.0... ccctenet nee ees 54 Gov. Code § 3203 2.00...ccctent eens 34 Gov. Code § 3209 1.0... .cccttt ene aes 34 Gov. Code § 3500 .... 0.0... ee eee eee 14, 17, 18, 36, 43, 47, 57 Gov. Code § 3501 oo.eccce ene 15, 36, 39 Gov. Code §§ 3502-3503 2.0.0... 2.ceeee 38, 43 Gov. Code § 3504 00...eccccnes 39 Gov. Code § 3504.5 oo... cecceee eens passim Gov. Code § 3505 ..... cece ene een eens passim Gov. Code § 3505.1 10... 6.cenceeee 18 Gov. Code § 3509 1.0... icecceee eens 15, 32 Gov. Code § 3509.5... . cececcc eae 14, 34, 40-42 Gov. Code § 3540 ..... ceeccceee eee 54 12 Regulations PERB Regulation, CCR,tit. 8, § 32016 ........... 0.0.0.0... 0000008 15 PERB Regulation, CCR,tit. 8, § 32603(c) ........ 00.0... eee eee 32 PERB Regulations, CCR,tit. 8, §§ 32450-32455 ..................0. 32 Constitutions California Constitution Article XI, § 3(b) ...............0.0000. 66, 67 City Charter $1 octeten ene 39 City Charter § 265 2.00.0...ccc ce ens 16, 18, 19, 25 City Charter § 280 2.0...cecenets 18, 19 City Charter § 290 2.0...cccene 18, 19 City Charter, Art. KVoo.ceceeen ee 16 13 ISSUES PRESENTED' (1) Whena final decision of the Public Employment Relations Board (PERB)is challenged in the Court ofAppeal pursuantto section 3509.5, subdivision (b), of the Meyers-Milias-Brown Act (MMBA), are PERB’s interpretations of the statutes it administers andits findings of fact subject to deference underthe “clearly erroneous”standardorare they subject to de novo review? (2) Dothe MMBA’sgoodfaith meet-and-confer obligations apply to public agencies under section 3505or do these obligations apply only to the public agencies’ governing bodies when they proposeto take formal action affecting employee wages, hours,or other terms and conditions ofemployment under section 3504.5? FACTUAL AND PROCEDURAL SUMMARY I. The Parties PERB wasestablished by the Legislature in 1976 as the state’s expert administrative agency to administer collective bargaining for covered governmental employees. Since 2001, PERB has been vested with exclusive initial jurisdiction to interpret and enforce the Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et seq., which applies to cities, ' This Court’s Order states that the petitions for review are granted and that briefing on the issuesraised in the petition for review filed by petitioners Catherine Boling, T. J. Zane and Stephen Williams is deferred pending further order of this court. (Cal. Rules Ct., rule 8.520(b)(2).) 14 counties and special districts. PERB determines whether charges of unfair practices are justified and, if so, what remedy is necessary to effectuate the purposesofthe Act. (§3509, subd. (b); Coachella Valley Mosquito and Vector Control Dist. v. PERB (2005) 35 Cal.4th 1072, 1077 [Coachella].) The City of San Diego (City) is a charter city and a “public agency” subject to the MMBA.(§ 3501, subd. (c); AR:IJI:842.) The San Diego Municipal Employees Association (MEA), the Deputy City Attorneys Association of San Diego (DCAA), the American Federation ofState, County and Municipal Employees, AFL-CIO, Local 127 (AFSCME), and the San Diego City Firefighters, Local 145, IAFF, AFL-CIO (Firefighters)(collectively, Unions) is each a “recognized employee organization” (§ 3501, subdivision (b)) and an “exclusive representative” (PERB Regulation, CCR,tit. 8, §32016, subd. (B)), for an appropriate unit of City employees. Unions were the charging parties in the consolidated proceedings before PERB andreal parties in interest in the Court of Appeal. Catherine A. Boling, T. J. Zane, and Stephen B. Williams(collectively, Ballot Proponents) were the official proponents ofa localinitiative, referred to as the Comprehensive Pension Reform Initiative (CPRI) or Proposition B, which amended the City Charter to change certain terms and conditions of employment, including the elimination ofdefined benefit pensionsfor all new * Citations to the 24-volume Administrative Record are abbreviated as “[volume number]:[page number].” 15 hires except sworn police officers. Although Ballot Proponents did not participate as parties in PERB’s administrative proceedings, they filed a petition for writ of extraordinary relief (D069626), and were also namedas real parties in interest in the City’s petition (D069630). Il. The Underlying Facts’ A. By Charter Mandate, the City of San Diego’s “Strong Mayor”Serves As City’s Chief Executive Officer and Chief Labor Negotiator City Charter article XV establishes a “Strong Mayor Form of Government,” defining roles and veto powerfor a “Strong Mayor”elected on a City-wide basis and a 9-member City Council elected by Districts. (XT11:3337-3338; XIV:3512; XVIL:4492-4502; XVIII:4707-40; XXI1:5532-47.) When sworn into office, the City’s Mayoragrees to serve as the City's ChiefExecutive Officer, responsible for the day-to-day operations of the City functioning as a business, government, and employer. (XIII:3348-3349; City Charter § 265.) The Mayor is an elected official serving in a City-paid position as City’s CEO. The City Attorney’s Office (under Jan Goldsmith) published a Memorandum ofLaw (MOL)inJanuary2009 (XVIII:4719-4739)* > All citations are either to the Administrative Record or, where applicable, the opinion in Boling v. Public Employment Relations Bd. (2017) 10 Cal.App.5th 853 [Boling], on which review was granted. “This MOLwaspublishedto clarify the duties of Mayor and City Council in response to PERB’s determination in a prior case (Case No. LA- CE-352-M)that City had violated the MMBA.(/d. 4719-4720.) 16 entitled “Impasse Procedures Under Strong MayorTrial Form ofGovernance,” which addressesthe respective roles of the Mayor and City Council on behalf of the City as a “municipal corporation” and “single employer” under the MMBA.(X1I:3191-3193; XVIII:4626-38, 4727-8.) As the City’s elected chief executive officer, the Mayor gives controlling direction to the administrative service; recommendsto the Council such measures and ordinances the Mayor deems necessary or expedient for the City and its residents; makes other recommendations to the Council concerning the affairs of the City as the Mayor finds desirable; has inherent authority and responsibility for labor negotiations becauseit is an administrative function oflocal government; and retains veto power over certain Council legislative actions. It is the Mayor who must “ensure that the City’s responsibilities under section 3500, subdivision (a) ofthe MMBAastheyrelate to communication with employees are met.” (XVII:4493; XVIII:4721, 4727-4728.) The Mayoralso serves as City’s Chief Labor Negotiator in collective bargaining with City’s recognized employeeorganizations, including Unions. It is the Mayor’s duty (1) to conduct a good faith meet and confer process under the MMBA“whenever,underthe law,the obligation to meet and confer is triggered”(XIII:3349); (2) to communicate with City’s employees andtheir Unions in a manner consistent with the MMBA;and(3)to give direction to City’s Negotiating Team and determine City's bargaining objectives - what 17 concessions, reforms, changes in terms and conditions of employmentare important to achieve. (XIII:3349-3352; XII-3191-3193; XIV:3705; XVIIT:4721, 4727-4728.) The Mayor’s role is not an advisory function but rather “it is the Mayor who must ensure that City’s responsibilities under section 3500, subdivision (a) ofthe MMBA[...] are met,” (XVIII:4721, 4727- 4728), andit is the Mayor’s “duty to negotiate with Unions in an attempt to reach agreement for the Council’s consideration and possible adoption.” (XVIII:4728) B. The Mayor’s “Tentative Agreements” With Recognized Employee Organizations Are Submitted to the City Council Subject to the terms ofthe City Charter andthe State’s Constitution,all legislative powers of the City are vested in the City Council, except those legislative powers reserved to the people by the Charter and the State Constitution. The Council adopts an annualsalary ordinance establishing salaries for all City employees, subject to the Mayor’s veto power. (XVII:4493 [Charter § 265], 4498-4501 [Charter §§ 280, 290]; XVIII:4636-4637, 4714.) Any tentative agreement the Mayor reaches with a recognized employee organization is submitted to the Council for determination under MMBA, Government Code section 3505.1. Because the Council has “ultimate authority to set salaries and to approve Memoranda of Understanding,” (XVIII:4738- 4739), the City Attorney recommends, and the Mayorfollows,a bargaining protocol to foster “the core principle of the decisional law related to the 18 MMBA(which) is the duty to bargain in good faith.” (XIII:3349-3352; XVIUI:4726-4730, 4733, 4736-9.) Though not required by the Charter, the Mayorobtains Council’s pre-approval for any proposed increase in wages or benefits before offered to Unions. This practice avoids an end-of-bargaining disconnect between any tentative agreement the Mayor brokers and what the Council is willing to approve. The Council is empowered to reject the Mayor’s “last, best and final” offer during any impasse proceeding but the Mayorremains in control of the bargaining process. (XVII:4493 [Charter §265], 4498-4501 [§§280, 290]; XVII1:4636-4637, 4714.) C. City’s Course of Meet-and-Confer Confirms the Mayor’s and City Council’s Respective Roles Under the MMBA 1. Charter Amendments For the November 2006 Ballot In 2006, Mayor Sanders met and conferred with Unions regarding two ballot proposals designed to amendthe City’s Charter on negotiable subjects: (1) requiring a vote of the electorate to approve future increases in pension benefits; and (2) authorizing bargaining unit work to be contracted out under a managed competition system. Meet-and-confer concludedbythe deadline for the Council to put these two measuresontheballot. (XIII:3345.) 2. A New Defined Benefit Pension Plan For New Hires In 2008, Mayor Sanders led negotiations with Unions for a new “hybrid” defined benefit/defined contribution pension plan to de-incentivize early retirements and reduce the City’s pension costs. (XIV:3628-3630; 19 XX:5354-56.) The Mayor opened a press conference outside City Hall to announcehis tentative agreement: Weare all assembled here today to announce that the unions and J as the City’s lead negotiator have arrivedat a tentative agreement regarding pension reform.[...] I think it’s in the bestinterest ofall parties that we arrivedat this arrangement and would urge the City Council to pass it unanimously onceit’s before them. (XXI:5519 [video clip].) The Council approved the new plan which became a term of a Council- approved Memorandum of Understanding (MOU)effective July 1, 2009, through June 30, 2011 - an MOU which also included negotiated compensation reductions, and City’s agreement to meet and confer if City proposed to introduce ballot measures related to wages, hours, working conditions or employee-employerrelations.” (XII:3 183-3185; XIV:3518-3519; X1X:4917.) 3. “Tentative Agreements” on Compensation Reductions, Firefighters’ Pension Formula, and Retiree Health Benefits In spring 2011, Council approved the Mayor’s tentative agreement with MEAto extendits existing MOU through June 30, 2012, while continuing in effect the six percent (6%) compensation reduction begun on July 1, 2009, as well as other economicconcessions. (XII:3185-3188; XIX:5023-26, 5045-46.) The Mayoralso reacheda tentative agreementwith Firefighters for a one-year extension of its MOU through June 30, 2012, which included the concession the Mayor sought to reduce the pension formula applicable to future 20 firefighters from the existing “3%-at-age-50”to a less favorable “3%-at-age- 55.” (XI1:3473; XX1:5525-30.) In May,the Mayorled press conference to announcethat an “historic” tentative agreement with Unions on retiree healthcare benefits would be submitted to the Council for action. (XIJII:3425-3426; XIV:3522-3523; XIX:5049-52, 5054-55.) This agreement, which Council approved, achieved “record savings” - $714 million over 25 years [revised upwardto a savings of $802.2 million, (XX:5275-76)], accompanied by a reduction in City’s unfunded liability from $1.1 billion to $568 million. (XIX:5049-5052; 5054- 55, 5063-64, 5066-5072, 5074-5104; XIV:3523.) D. Meanwhile, the Mayor Unilaterally Made and Implemented A Policy Decision to Seek 401(k) Pension Reform By Useof A Citizens’ Initiative To Avoid Bargaining 1. Joined By City’s Chief Operating Officer and the City Attorney During A City Hall Press Conference, The Mayor Announced His Decision With a new pension plan having been negotiated and adopted for those hired after July 1, 2009 - and with further concession bargaining in progress on compensation and retiree health benefits - the Mayor decided, after discussions with his staff, that he “would promote and pursue a 401(k)-style pension conceptas his focus during his last two years in office,” and use a citizens’ initiative rather than a Council-sponsoredballot proposal.’ (Boling at > There wasnocitizens’ initiative pendingorcirculating. 21 858-859; XIII:3306-3307; XIV:3527, 3531-3532; XV:3835-3836.) The Mayor did not believe the Council would put his 401(k) proposal on the ballot, and, in any event, going to the Council to achieve this “reform” would require negotiating with Unionsand perhaps “unacceptable compromises.”® (Ibid.) In a tape-recorded interview, the Mayor explainedhis rationale: “[W]hen you go out and signature gather and it costs a tremendous amount of money,it takes a tremendous amountof time and effort . . . . But you do that so that you get the ballot initiative on that you actually want. [A]nd that’s what wedid. Otherwise, we’d have gone through the meet and confer and you don’t know what’s going to go on at that point... .” (10 Cal.App.5Sth at 859, fn. 2.) In furtheranceofhis decision, the Mayor’s Office issued a press release in early November 2010 declaring the Mayor’s intentto “place an initiative on the ballot” to implementa “radical idea”ofeliminatingtraditional pensionsfor newhires at the City “as part of his aggressive agenda[...] for eliminating the city’s $73 million structural deficit by the time he leaves office in 2012.” (XVIII:4742-4743.)’ This “Mayor Jerry Sanders Fact Sheet” bore City’s seal; ° The Mayorneverasked the Council to consider the subject matter covered by his initiative. (XII:3465-3466.) “Having decided that the citizens’ initiative wasthe right way to go” to achieve 401(k)-style pension reform,” he also never directed his Negotiating Team to presenthis proposal to Unionsfor bargaining. (XIII:3354, 3465; KV:3853-3854.) ’ By February 2012 (months before Prop B wasontheballot) this $73 million structural deficit had been eliminated (in part due to concession bargaining), and, by April 2012 (before Prop B wentto the voters), City projected a balanced budgetfor the following fiscal year, and a budget surplusfor the successive five years. (XIV:3524-3525; XX:5269-5270, 5272-5273, 5278-79.) 22 explained that the Mayor’s “administration was re-think(ing) how City provides services to the public;” and confirmedthat “items requiring meet- and-confer, such as reducing the city’s retiree health care liability (were) in negotiations and on track to have a deal by April.” (/bid.) However, the “headline” was the Mayor’s plan to “push a ballot measure to eliminate traditional pensions for new hires ” and to do so in furtherance of City’s interests.2 (XVIII:4742.) The Mayor’s staff posted this “Mayor Jerry Sanders Fact Sheet” on City’s website. Standing before the City seal on the 11" floor of City Hall - joined by City’s Chief Operating Officer, Councilmember Kevin Faulconer and the City Attorney - the Mayor held a “kick-off” press conference to announcehisinitiative. (Boling at 859 and fn. 3 & 4; XVIII:4742-43, 4747; XJJI:3307-3309, 3312-3313, 3319-3320; XV:3914-3915, 3917; XIV:3533- 3534.) Media coverage informed the publicthat “San. Diego voters will soon be seeing signature-gatherers for a ballot measure that would end guaranteed pensions for new [C]ity employees.” (Boling at 859.) _ The Mayor’s Office also issued a newsrelease to announce the Mayor’s decision. Councilmember Faulconer disseminated this newsrelease by e-mail *It is undisputed that Mayor Sanders wasacting for the City’s benefit after deciding that 401(k)-style pension reform was a “necessary and expedient” measureto eliminate City’s structural budget deficit and “permanently fix” City’s financial situation. (XIII:3312-3313; XV:3918- 3923; XXIII:5764, 5766.) 23 stating that the Mayorand he “would craft a groundbreaking [pension] reform ballot measure and lead the signature-gathering effort to place the measure before voters.”(bid. ) Using JerrySanders@sandiego.gov, the Mayor’s Office sent a mass e-mail to several thousand community leaders and others with the Mayor’s messagethat he would “craft language and gather signatures for a ballot initiative to eliminate public pensions as we know them.” (J/bid; XXIIT:5747-49; XV:3907-3908, 3910-3911, 3912-3913.) In early December 2010, Mayor Sanders’ City-paid staff began promoting his pension reform initiative to the media and others. (XIII:3320- 3322; XV:3922-3925, 3989-3990; XVIII:4772; XXIII:5810-12, 5923-24, 5926.) The Mayor built support with key business groups and individuals, including Ballot Proponents who becametheinitiative’s “official proponents.” (XV:3918-3921; XXIII:5806-08.) The Mayorpersonallypromoted his pension reform initiative plan before the Chamber of Commerce’s public policy committee and its full Board of Directors. (XV:3797-3800, 3925-3927; XVIII:4474, 4786; XXIII:5764, 5766.) He formed a campaign committee “San Diegans for Pension Reform” (SDPR) under FPPC rules, to “push forward with financing and fund-raising.” (XIII:3378-3379, 3409-3411, 3432- 3435, 3437-3440; XVIII:4782-84; XTX:4980-81, 4990-5002.) The committee’s treasurer gave updates to the Mayor’s Deputy Chief of Staff who kept “tabs” on the committee’s activities. (XV:3816-3817.) 24 On January 7, 2011, the Mayor’s Director of Communications sent an e-mail to Fox News: “We’re eliminating employee pensions as we know them and putting in place a 401(k) plan like the private sector. My boss, San Diego MayorJerry Sanders,is available any time to come on TheFactorto talk about what he’s doing here in San Diego and the greater national problem.” (XTI1:3329-3331; XVII:4788.) 2. The Mayor Announced His Policy Decision Directly to the City Council When Delivering His Charter-Mandated “State of the City” Address In January 2011, the Mayor delivered his annual, Charter-mandated “State of the City” Address directly to the City Council to report on “the conditions and affairs ofCity” and to make “recommendationson such matters as he or she may deem expedient and proper.” (Boling at 859; City Charter, Art. XV § 265(c); XVII:4494.) Vowing to “complete our financial reforms and eliminate our structural budget deficit,” the Mayor described the “bold step”of creating a 401(k)-style plan for future employeesto “contain pension costs and restore sanity to a situation confronting every big city:” “Councilman Kevin Faulconer, the city attorney and I will soon bring to votersaninitiative to enact a 401(k)-style plan [...]. We are acting in the public interest, but as private citizens.” (Boling at 859; XIX:4832, 4836.) Anotherpress release confirmed the Mayor’s promisethat“the ballot initiative next year will build on [his] earlier pension reforms which are projected to save $400 million over the next 30 years.” (Boling at 859; XVIII:4816.) 25 In the months following his “State of the City” Address - with no citizens’ initiative filed or pending - the Mayor, aided byhisstaff, continued to develop, evaluate, promote and publicize his pension reform initiative while fine-tuning its terms based on the legal and financial analyses he commissioned. (Boling at 859-860 and fn. 6; XIII:3380-3385; XIV:3545- 3549; XV:3809-3811, 3827-3828, 3937-3942, 3948-3951, 3990-3991; XIX:4983-84, 4986-88; XXIII:5782-83, 5814-30, 5928-30.) There was an expectation that the Mayor’s staff would regard his pension reform initiative as City business and within the scopeoftheir official duties. (XIII:3321, 3330-32; XV:3807, 3957.) The Mayor’s Chief of Staff viewedall the initiative-related work she and other City-paid Mayoral staff members did before April 2011 as “official City business.” (XIII:3401-02, 3480-81; XIV:3570-76; 3653-54; 3667-68; 3676-79; XV:3812-14.) Between January |* and March 31* 2011, the Mayorandhis key policy staff, including City’s ChiefOperating Officer, exploredthe fiscal viability of the Mayor’s pension reform proposal;’ while the Mayor’s SDPR committee paid a law firm to provide legal research and advice related to it. (Boling at 860, fn. 7; XIH:3378-3381, 3439-3441; XIX:4980-81, 4990-5002.) /// ’ City’s COOtestified that his fiscal analysis on the Mayor’s pension reform initiative was facilitated because of his access to actuarial data from the City’s defined benefit plan which wasnot available to “someoneoffthe street.” (XIV:3509, 3547-3554, 3565-3566.) 26 The Mayorandhisstaffnegotiated with supporters outside the City (but never with recognized employee organizations) to achieve the Mayor’s policy goals for 401(k)-style pension reform througha single initiative, the CPRI. The final version melded design elements from the Mayor’s plan and a plan being promoted by Councilmember DeMaioin his “Roadmapto Recovery.” Newly hired police would continue in the defined benefit plan but all other newly hired employees, including firefighters, would be placed in a 401(k)- style plan; transition costs associated with closing the defined benefit plan to most new hires would be “paid for” by imposing a 5-year pensionable pay freeze (through 2018) on existing employees. (Boling at 860-861 andfn. 7-8; XIIL:3376-3377, 3396-3405, 3408, 3414-3415, 3421-3424, 3479-3481, 3485- 3487; XIV:3568-3576, 3676-3680; XV:3729-3730, 3811-3814, 3821.) The Mayor “got the pieces (he) really needed, which were a 401(k) and having police remain competitive so that we(i.e., the City) can hire and retain.” (XI1:3423-3424.) The Mayor’s Chief of Staff, City’s COO, and the City Attorney, all reviewed drafts of the initiative to assure the text achieved the agreed-upon objectives. (Boling at 861 and fn. 9; XIV:3576-3579, 3582-3585, 3587-3591, 3680-3682, 3684-3687, 3693-3694; XV:3821-3824.) Before announcing that his initiative was ready to circulate, the Mayor madesure the text of the initiative was right. (XIII[:3430-3431, 3482, 3491; XEX:5013-21.) 27 On April 4, 2011 -a full five months after the Mayor had announced his policy decision to change pensionsbyinitiative to avoid the MMBA,the City Clerk received a notice ofintentto circulate a petition seeking to place the CPRIonthe ballot. The three “official proponents”are Ballot Proponents here. (Boling at 861.) The notice wasfiled to coincide with a widely-coveredpress conference which the Mayorled outside City Halli the next day. Among others, the City Attorney, Councilmembers Faulconer and DeMaio, and two Ballot Proponents surrounded the Mayor during his press conference, (Boling at 862), and the Mayor’s Director of Communications and another communications staff member also attended. (XIII:3395-3399, 3415-3417, 3419, 3428-3432; XIX:5004, 5006-07, 5013-21.) Introduced as “Mayor Jerry Sanders,” the Mayor spoke under a “Pension Reform Now” banner. Referring to the contents of the CPRI, he said: ““We’ve madeprogressoverthe last few years in reforming our (pension) system. Today we’re taking the next step and let metell you it’s a big one.” (XIII:3339-3340, 3376-3377, 3421, 3431; XIX:5006-07, 5013-21, 5028-29 [Fox News: “Pension Reformers Unite Behind Compromise Plan”]; XXI- Ex:5515 [KUSI videoclip].) Councilmember Carl DeMaio stepped to the podium to say: “Mr. Mayor, it was your leadership that allowedusto reach the deal we havetoday.” (/bid.) /// 28 Following this press conference, the Mayor agreed that Ballot Proponent Zane, who was a leader in the Lincoln Club (as was Ballot Proponent Williams), should run the initiative campaign from the Lincoln Club. (Boling at 861, fn. 11.) The Mayor’s SDPR committee contributed $89,000 to the new CPRI committee.'? The Mayorprovided interviews and quotes to the media (whichhis staff facilitated) to emphasize the importance of CPRI andhediscussedit at his speaking appearances. (Boling at 862 and fn. 13.) He approved a “Message from MayorJerry Sanders”for circulation to members of the Regional Chamber of Commercesoliciting financial and other support for the signature-gathering effort. (/bid.) E. Having Failed to Initiate Any Good Faith Meet-and-Confer Process Over the Mayor’s 401(k) Policy Decision, the City Refused All Demandsto Bargain MEA,the largest of the City’s recognized employee organizations, made a series of written requests seeking to meet-and-confer with City regarding the subject matter of the initiative, including 401(k)-style pension reform. (Boling at 862-863.) On July 15, 2011, MEA wrote to the Mayor: The contents of your Ballot Initiative clearly fall within the scope of MEA’s representation [...]. Indeed, some of the subject matter[...] directly relates to matters on which MEA and the City have recently bargained and [...] reached agreements memorialized in MEA’s MOU,Council Resolutions and Ordinances. [...] Please advise how you propose to proceed with this mandatory meet and confer process and when. In '° The Lincoln Club contributed $56,225; and “Reforming City Hall With Carl DeMaio”contributed $15,000. (XXI:5442-44.) 29 preparation, and unless advised to the contrary, MEA will treat the Ballot Initiative, as presently written, as your opening proposal on the covered subject matter. (XIX:5109-10, emphasis added.) MEA’s four subsequent written requests urged either the Mayor or City Council or both to act on City’s behalf to cure the failure to bargain by meeting-and-conferring over the CPRI subject matter. (XIX:5112; XX:5123- 5126, 5142-5149, 5157-62.) The City Attorney’s Office asserted in response that the Council was not making a “determinationofpolicy or course ofaction within the meaning of the MMBA,”because the Council would be requiredto put the CPRI onthe ballot without modification if the requisite number of signatures were submitted. (Boling at 863; XX:5115-5117.) Citing the City Attorney’s own legal advice in the 2009 MOL acknowledging the Mayor’s duty to comply with the MMBAbased onhis position as the City’s CEO, MEArebutted City’s refusal: Mayor Sanders has clearly made a determination of policyfor this City related to mandatory subjects of bargaining - and then promoted this determination using the powerofhis office as Mayor as well as its resources. [...] The conclusion is inescapable that Mayor Sanders madea deliberate decision to attempt to dodge the City’s obligations under the MMBA by using the pretense that this is a “citizens” initiative” whenitis, in fact, this City’s initiative acting by and throughits chief executive officer and lead labor negotiator, Mayor Sanders. (XX:5123-5126, emphasis added; Boling at 863.) Noting the City Attorney’s public support for the Mayor’s initiative, MEA urged City Council “to seek independent legal advice related to City’s 30 obligations under the MMBAinthe matter of the Mayor’s pension reform initiative andrelatedto the duties[...] ofthe entire City Councilin this policy- setting matter from which the Mayorhad excluded them.” (XX:5126,original emphasis.) In a fifth and final written demandto gain City’s compliance with the MMBA,MEAwrote: A properlegal analysis cannot begin and end with the fact that the City Council is not proposingthis ballot initiative. This fact has never been in dispute. But the City Council is not empoweredto actas the City’s ChiefLaborNegotiator underthe Charter’s Strong Mayor Form ofGovernance - the Mayoris; the City Council does not initiate the MMBA-mandated meet and confer process with this City’s recognized employee organizations-the Mayordoes; the City Council does notdirect the activities ofthis City’s HumanResourcesorLabor Relations Office-the Mayordoes;[...]. The City Council’s ability to fulfill its proper role [...] depends upon the Mayor’s good faith fulfillment of his Charter-mandated role as Chief Negotiator. [...][T]his letter will serve as MEA’s final, heartfelt demandthat the City comply with the MMBA[...] (XX:5157-62, original emphasis.) Through the City Attorney, City refused all demands by MEA(as well as the other Unions) on the groundthat“there is no legal basis upon whichthe City Council can modify the [CPRI], if it qualifies for the ballot.” (Boling at 863 and fn. 14; X*X:5115-5117, 5128-5133, 5151-5155; XV:4016-4017; XV:3856; XXII:5907-5918.) Nearly a year after Mayor Sanders first announced his decision to change negotiable subject by initiative without bargaining, City Council adopted a CPRI-related resolution on December5, 2011, (XVI:4067-69), and 31 thereafter enacted an ordinance on January 30, 2012 (XVI:4071-89), placing the CPRI on the June 5, 2012 ballot as “Proposition B.” (Boling at 863.) 154,216 San Diego electors voted in favor and 80,126 voted againstit. Ill. Procedural History A. PERB Proceedings Before “Stay” Ordered In early 2012, before the June election, Unions filed unfair practice chargesalleging City had violated the MMBAbyrefusing to bargain before placing the CPRIon the ballot. (Boling at 863; I:3-327; III:579-589, 609-613; IV:935-939.) PERB’s Office of the General Counsel issued administrative complaints alleging City “failed and refused to meet and confer in goodfaith in violation of Government Code section 3505 and committed an unfair practice under Government Code section 3509(b) and PERB Regulation 32603(c).” (II1:572-573, 835-836; V:1180-1182, 1407-1408.) B. Court Proceedings Pursuant to PERB Regulations 32450-32455, MEA requested and the Board directed PERB’s General Counsel to seek temporary injunctive relief enjoining City from placing CPRI/Proposition B on the ballot until City met and conferred with MEA.(I1:246-249.) The Superior Court denied PERB’s request. (Boling at 863.) City filed a cross-complaint against PERB and obtained a stay ofPERB’s administrative proceedings.'' The Court ofAppeal "In response, Ballot Proponents sued PERB andfive individually- named Board Members (SDSC Case No. 37-2012-00093347), seeking to . 32 lifted the stay in San Diego Municipal Employees Assn. v. Super. Ct. (2012) 206 Cal.App.4th 1447, 1453-1455, finding that PERB, as the expert administrative agency, has exclusive initial jurisdiction over conduct that arguably violates the MMBA.(dd. at 1458-1460, 1465-1466; see also Boling at 864.) City’s petition for rehearing was denied,as wereits petitions to this Court for extraordinary relief and stay (S203952) and for review (S204306). C. Administrative Hearing and ALJ’s Proposed Decision PERB assigned the administrative complaints to an administrative law Judge (ALJ) who ordered the cases consolidated and presided over a four-day administrative hearing in July 2012. (VII:1911-1913; XII-XV.) City answered Unions’ unfair practice complaints by asserting that no failure or refusal to bargain had occurredin violation of section 3505 because City had not made a determination of policy or course of action related to CPRI within the meaning of section 3505. (III:842-845.) The ALJ’s 58-page Proposed Decision found that City violated the MMBA.(X:2613-2675; Boling at 865.) City filed exceptions. (X:2685-2724.) Ballot Proponents filed an informational brief as interested non-parties. (X:2730-2775, 2894-97; XI:2898-2927.) Unions responded. (X:2776-2782, 2817-2881; X1:2928-2957.) halt PERB’s administrative actions related to CPRI, as well as actual damages and attorneys’ fees. (PERB’s RJN in D069626 filed 9/11/16.) Ballot Proponents’ sought review in the same matter. (S203478) 33 D. Board Decision PERB’s 61-page Decision adopted the ALJ’s findings of fact (with two exceptions) because they were supported bythe record. (XI:2978-3 126; Boling at 865-867.) PERB affirmed the ALJ’s conclusion that City had violated the MMBAbyfailing and refusing to meet and confer. (Boling at 866, fn. 17 and 20.) However, PERB acknowledged that only courts have the power to invalidate voter-approvedinitiatives and thus modified the proposed remedy. (Id. at 866-867; X1:3023-3025; cf. X:2670-2671.) Leaving the CPRI/Prop B charter amendmentin effect (until and unless a court invalidates it), PERB imposedtraditional restorative and compensatory remedies against City forits violation of the MMBA, with a “make-whole” remedy limited to those employees represented by Unions. (XI:3018-3020.) E. Pre-Opinion Proceedings in the Court of Appeal City and Ballot Proponents filed separate Petitions for Writ of Extraordinary Relief (Gov. C. § 3509.5), seeking nullification of PERB’s Decision. City argued that PERB’s order was illegal and unenforceable because the MMBA’s meet-and-confer process was preempted:first, by the Mayor’s First Amendmentright, like any other citizen, to engage in direct democracy by initiative; second, by the citizens’ constitutional right to initiative whichis absolute; and, third, by the provisions of Government Code sections 3203 and 3209 which authorized the Mayor’s conduct. City also 34 argued that PERB erred whenusing inapplicable agency theories to impose a meet-and-confer obligation on City. PERB and Unions answeredthree amicus briefs filed in support of City’s Petition which focused exclusively on the Mayor’s right to exercise his First Amendment rights unburdened by any obligation for City to comply with the MMBA. Ballot Proponents argued that a citizens’ initiative is protected by the Constitution as political speech, cannot be modified by a governing body before being placed on the ballot, and cannotberestricted in any manner by the MMBA. They argued that PERB has nojurisdiction over a citizens’ initiative and thus PERB’s hearing processviolated their rights ofassociation. Daysbefore oral argument, Boling issued a “focus”letter for argument which raised new issues not argued by either Petitioner and never briefed during more than 5 yearsoflitigation: does MMBAsection 3504.5 define (and limit) a public agency’s duty to bargain rather than section 3505, and should a de novo standard of review apply to PERB’sconstruction of the MMBA? F. Court of Appeal Opinion Boling issued an order consolidating City’s and Ballot Proponents’ Petitions for decision andthen filed its Opinion annulling PERB’s decision and remanding the matter to PERB with directions to dismiss Unions’ unfair practice complaints. (Boling, supra, 10 Cal.App.5th at 895.) Boling also denied PERB’s motion to dismiss Ballot Proponents asreal parties in interest 35 on City’s petition. (/d. at 867.) In light of its conclusion that PERB’s decision must be annulled, Boling found PERB’s motion to dismiss Ballot Proponents’ separate petition mootanddid not addressit or the additional arguments raised therein. (/bid.) G. Petitions for Rehearing Denied Unions and PERB filed timely petitions for rehearing on the ground, inter alia, that they were denied the opportunity to brief dispositive issues. Boling summarily denied both petitions. ARGUMENT I. In Furtherance of Statewide Objectives, The MMBAIs Intended to Foster Communication, Dispute Resolution and Agreement Between Public Agencies and Recognized Employee Organizations In 1961, California became “one ofthefirst states to recognize the right of government employees to organize collectively and to confer with managementas to the terms and conditions of their employment.” (Glendale City Employees Ass'n v. City of Glendale (1975)15 Cal.3d 328, 332 [Glendale].) In 1968, the Legislature enacted the MMBAasa statute ofbroad application governing the labor relations of nearly all cities, counties, and special districts. (Gov. C. §3501.) Its purpose is to promote full communication between public employers and employees, improve personnel management and employer-employeerelations, and therebyfoster “the strong policy favoring peaceful resolution ofemploymentdisputes.” (Gov. C. § 3500, 36 subd. (a); Glendale, supra, at 335-336; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 22.) The goal of the MMBAisto foster agreement. (Glendale at 336.) “Though the (meet-and-confer) processis not binding,it requires that the parties seriously ‘attempt to resolve differences and reach a 299 common ground.’” (Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 61-62.) A. PERB’s Role As An Expert, Quasi-Judicial Administrative Agency Is To Enforce the MMBAOnA Uniform, Statewide Basis Consistent With Its Legislative Objectives Before 2001, no administrative agency was entrusted with the role of interpreting and enforcing the MMBAona uniform statewide basis. Instead, state courts interpreted and applied it on a case-by-case basis. By amendment to the MMBAin 2000, PERB’s jurisdiction was expanded to include the authority to resolve MMBAdisputes (except those involving peaceofficers). Enforcement actions filed in a multitude of state courts and reviewed by various Appellate Districts, came to an end. PERB’srole is to bring “expertise and uniformity to the delicate task of stabilizing laborrelations.” (San Diego Teachers Assn. v. Super. Ct. (1979) 24 Cal.3d 1, 12.) This Court has long held that PERB’s expertise as a quasi- judicial agency, and the need for uniformity in labor relations, entitle PERB’s final decisions to great deference. (San Mateo City School Dist. v. Public Employment Relations Board (1983) 33 Cal.3d 850, 856.) 37 “PERB is ‘one of those agencies presumably equippedor informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possessandtherefore must respect.” (Banning TeachersAssn. v. PERB (1988) 44 Cal.3d 799, 804 [Banning]; Int'l Ass’n ofFire Fighters, Local 188, AFL- CIO v. PERB (2011) 51 Cal.4th 259 [applying clearly erroneous standard of review].) This Court reaffirmedthe vitality ofthe Banning “clearly erroneous” standard ofreview in County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 922 [County ofLos Angeles][courts defer to PERB’s construction of labor law provisions within its jurisdiction unless clearly erroneous]. B. The Centerpiece of the MMBAIs A Public Agency’s Duty To Bargain In Good Faith Established By Section 3505 Courts have “consistently held that the Legislature intended theMMBA to imposesubstantive duties, and confer substantive, enforceable rights, on public employees and employers.” (Santa Clara County Counsel Attorneys Ass’n v. Woodside (1994) 7 Cal. 4th 525, 539 [Woodside].) It establishes the right of public employees to “form, join, and participate in the activities of employee organizations. . . for the purpose of representation in all matters of employer-employee relations,” as well as the right of their recognized employee organizations “to represent their members in their employment relations with public agencies.” (Gov. C. §§ 3502-3503.) The scope ofthat 38 representation includes “all matters relating to employment conditions and employer-employeerelations, including, but not limited to, wages, hours, and other terms and conditions of employment.” (§ 3504.) It establishes a duty to meet-and-confer in good faith regarding those matters (§ 3505) - a duty expressly applicable topublic agencies. (§§ 3501 and 3505).’° In cases spanning nearly four decades, this Court has recognized section 3505 as the centerpiece of the MMBA.(Glendale, supra, at 336; Los Angeles County Civil Service Comm., supra, 23 Cal.3d at 61-61; People ex rel. Seal Beach POA v. City ofSeal Beach (1984) 36 Cal.3d 591, 596-597 [Seal Beach]; Woodside, supra, 7 Cal.Ath at 536-537; Voters for Responsible Retirementv. Bd. ofSupervisors ofTrinity County (1994) 8 Cal.4th 765, 780 [ Trinity County]; Claremont POAv. City ofClaremont (2006) 39 Cal.4th 623, 630 [Claremont]; County ofLos Angeles, supra, 56 Cal.4th at 922.) Before Boling, the Fourth District itself recently described this section 3505 duty: The (MMB)Act imposesa duty on a public agency to “meet and confer in goodfaith” with recognized unions,“regarding wages, hours, and other terms and conditions of employment. . . prior to arriving at a determination of policy or course ofaction.” (§ 3505.) The duty to bargain applies to a decision “directly defining the employmentrelationship, such as wages, workplace rules, and the order of succession of layoffs and recalls.” (international Assn. ofFire Fighters, Local 188, AFL-CIOv. The City Attorney’s 2009 MOL confirmed that “the City is considered a single employer under the MMBA. Employeesofthe City are employees of the municipal corporation. See Charter § 1. The City is the public agency covered by the MMBA.” (XVIII:4730.) 39 I. PERB (2011) 51 Cal.4th 259, 272.) [...] Thus, the duty to bargain extends to matters beyond what might typically be incorporated into a comprehensive MOU[...]. (San Diego Housing Commission v. PERB (2016) 246 Cal.App.4th 1, 8-9.) By An Unprecedented Rejection of PERB’s Role As the State’s Expert LaborRelations Agency, Boling Applied De Novo Review to Annul PERB’s Decision Based On A New Construction of the MMBA Unmoored From Five Decades of Judicial and Administrative Precedent A. Deference to PERB’s Agency Determinations Is Fundamental to the MMBA While Boling acknowledgedthat the agencyissuesin this case present potential questions of fact on which it would typically owe PERB deference, Boling concluded that PERB has “no specialized expertise,” and “no comparative expertise in the common law that would warrant deference” because the material facts related to the existence of a principal-agent relationship are undisputed."* (Boling at 881, fn. 34; 887, fn. 41.) However, MMBAsection 3509.5, subdivision (b), expressly states: “(T]he findings of the board with respect to questions of fact, including ultimate facts, if supported by substantial evidencein the record considered as a whole, shall be conclusive.” A question of fact is presented even where the facts are undisputed but give rise to conflicting inferences. (Lantz v. Workers’ “ Boling’s view also conflicts with this Court’s long-established principle that PERB mayconstrueits statutes in light of “external law” when necessary to resolve unfair practice allegations and to avoid conflicts with those other laws, and, having done so, the samelevel of deference applies. (Cumero v. PERB (1989) 49 Cal.3d 575 at 583, 586-7.) 40 Compensation Appeals Bd. (2014) 226 Cal.App.4th 298, 316-317), and a reviewing court is not permitted to draw its own inferences from the evidence submitted to PERB. (Regents ofthe University ofCalifornia v. PERB (1986) 41 Cal.3d 601, 617.) Courts may not re-weigh evidence presented to PERB. (Inglewood, supra, at 781.) This standard applies to PERB’s factual findings related to agency,andit applies when PERB’sdecisionis based on undisputed facts. Unglewood, supra, 227 Cal.App.3d at 781; Moreno Valley Unified School Dist. v. PERB (1983) 142 Cal.App.3d 191, 196.) Boling’s contrary conclusion has important implications for appellate review. Underthe substantial evidencetest established by section 3509.5, the complaining party bears the burden of presentingall the material evidence on a particular disputed point, notjust the evidence that supports its own view of the facts. (Mt. San Antonio Community College Dist. v. PERB (1989) 210 Cal.App.3d 178, 187, fn. 4; Telish v. California State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1497.) This is consistent with a petitioner’s overall burdenin a petition for writ of extraordinary relief. (See Butte View Farmsv. ALRB (1979) 95 Cal.App.3d 961, 966,fn. 1.) By holding that the substantial evidence test may be discarded and a petitionerrelieved of its burden under section 3509.5 whenever a reviewing court prefers to draw contrary inferences from undisputed evidence, Boling fundamentally changed the judicial review process established by the 41 Legislature in section 3509.5 - a process intended to be deferential to PERB to achieve uniform statewide interpretation and application ofthe state’s labor relations statutes. (Banning, supra, 44 Cal.3d 799, 804.) B. Boling’s Sua Sponte New Construction of the MMBAIs Contraryto Its Text, This Court’s Precedent InterpretingIt, and the MMBA’sLegislative Goals Insisting on de novo review ofPERB’sinterpretation of the MMBAin defiance ofthis Court’s Banning “clearly erroneous”review standard, Boling’s sua sponte new interpretation ofthe MMBAradically limits (and confuses) the circumstancesin which a public agency owesa duty to meet and confer. Boling argued that legal principles involving PERB’s “special expertise” were only tangential to a resolution of this unfair practice case. According to Boling, the duty to meet-and-confer in good faith is not owed by the public agency or employer undersection 3505; the duty is owed only bythe entity’s governing body and, even then, only in the very limited circumstances described in section 3504.5, subdivision (a). Boling asserted: Section 3504.5, subdivision (a) describes when meet-and-confer obligationsare triggered (i.e., when there is an “ordinance,rule, resolution, or regulation directly relating to matters within the scope ofrepresentation proposedto be adopted by the governing body”), and section 3505 describes how that process should be accomplished, including who(i.e. the “governing body. . . or other representatives as maybe properly designated by law or by such governing body”) shall participate on behalf of the governing body. The designation in section 3505 of whoshall conduct the meet-and-confer process does not expand who owes the meet-and-confer obligations imposed by section 3504.5. (Boling at 882, fn. 37, emphasis in original.) 42 Boling is the first court in 49 yearsto find that section 3504.5 restricts the duty to meet and confer undersection 3505.'° There is no prior published court or PERB decision in which a public agency has even suggested that section 3504.5 limits the duty to meet and confer in any way. (Cf. Cole v. City ofOakland Resid’l Rent Arbitration Bd. (1992) 3 Cal.App.4th 693, 697-698 [administrative agency’s contemporaneousconstruction ofa statute, combined with reliance and acquiescence bythoseaffected, is entitled to great weight]. For decades, this Court has read sections 3504.5 and 3505 together - and with section 3500 - to describe the purposes of the MMBA. The MMBA has two stated purposes: (1) to promote full communication between public employers and employees, and (2) to improve personnel management and employer-employee relations. (§ 3500.) To effect these goals the act gives local government employeesthe right to organize collectively and to be represented by employee organizations (§ 3502), and obligates employers to bargain with employee representatives about matters that fall within the “scope of representation.” (§§ 3504.5, 3505, emphasis added.) Claremont, supra, 39 Cal.4th at 630, quoting Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 657. Asthis Court held in Glendale, supra, 15 Cal.3d at 336, and Trinity County, supra, 8 Cal.4th at 782, the effectiveness of collective bargaining under the MMBA depends on a statutory scheme whereby the governing body that approves labor agreements is the same entity required to conduct or supervise the ’’ The relevant text of section 3504.5 has been part of the MMBA sinceits original enactment in 1968. (Stats. 1968, ch. 1390, p. 2728.) 43 bargaining. When readingthe statutory provisions together and as part of a whole, “[aJn employer cannot change matters within the scope of representation withoutfirst providing the exclusive representative notice and opportunity to negotiate.” (PERB v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 899; see also City ofSacramento (2013) PERB Dec. No. 2351-M,sl.op. at 28 [reasonable advancenotice and an opportunity to bargain mustbe given before a change is made].) Boling’s new constructionflouts this established principle by absolving a public agency’s governing bodyofits statutory responsibility to conduct or supervise bargaining byits designated representative, here the Mayor. Contrary to Boling’s reading of sections 3504.5 and 3505, it is commonplace in cases before PERB whichinvolve public employer’s failure or refusal to bargain, for the actor whose conductis at issue to be an individual manager, supervisor, administrator, or director-not the governing bodyitself. This is borne out by a multitude ofcases decided bythe courts,’° and by PERB '® See, e.g., Long Beach Police Officer Assn. v. City ofLong Beach (1984) 156 Cal.App.3d 996, 1011 [police chief; unilateral change]; Independent Union ofPub. Service Employees v. County ofSacramento (1983) 147 Cal.App.3d 482, 489 [management; unilateral change]; Solano County Employees’ Assn. v. County ofSolano (1982) 136 Cal.App.3d 256, 265 [county administrator; rule issued]; Huntington Beach Police Officers’ Assn. v. City ofHuntington Beach (1976) 58 Cal.App.3d 492, 504 [police chief; unilateral change]. 44 since it assumed exclusiveinitial jurisdiction over the MMBAin 2001,” in which public agencies have been foundin violation of section 3505’s duty to meet-and-confer without any formal action by the governing body. Moreover, a plain reading of the text of sections 3504.5 and 3505 contradicts Boling’s constructionthat only section 3504.5 identifies “who” has a duty to meet-and-confer and “when.” Section 3505 mandates, in detail, the “who, what, when and how”related to the agency’s meet-and-confer duty. Section 3505’s express terms makeno limiting reference back to those governing board actions itemized in section 3504.5, subdivision (a), when establishing a public agency’s duty to meet and confer.'® Section 3505 assigns the duty to the agency’s “governing body or such administrative officers or "’ See, e.g., City ofDavis (2016) PERB Decision No. 2494-M,p. 46 [assistant police chief and administrative fire chief; unilateral change]; County ofSan Bernardino (Office ofthe Public Defender) (2015) PERB Decision No. 2423-M, p. 56 [county public defender; unilateral change]; City ofLivermore (2014) PERB Decision No, 2396-M,p. 20 [city police department; unilateral change]; City ofSan Diego (Office ofthe City Attorney) (2010) PERB Decision No. 2103-M,p. 7-8 [city attorney; direct dealing in violation of section 3505]; City ofRiverside (2009) PERB Decision No. 2027-M,p. 14 [city division; unilateral change]. '8 This erroneousconstruction also belies Boling’s fundamental misunderstanding of how City government works. City Council does not initiate any “ordinance,rule, resolution, or regulation directly relating to matters within the scope of representation.” The Mayor brings proposed legislative actions to the Council for adoption after a section 3505 good faith meet-and-confer process has already occurred. “Tentative agreements” related to Memoranda of Understanding,(II, C, 1-3, supra, pp. 19-21), if approved, are adopted by resolution and/or by ordinance depending on the subject matter. 45 other representatives as may be properly designated by law or by such governing body,”and, in its second paragraph,to the “public agency, or such representatives as it may designate.” The duty must be fulfilled “prior to arriving at a determination ofpolicy or course of action,”related to “wages, hours, and other terms and conditions of employment,” or “matters within the scope ofrepresentation,” and also mustbe fulfilled “promptly upon request by either party” - with “adequate time” allowed for the “resolution of impasses wherespecific procedures”exist. The duty requires that a “public agency”or its designated representatives (1) meet “personally;” (2) “continue for a reasonable period of time” to “exchange freely information, opinions, and proposals;”(3) “considerfully such presentations as are made by the employee organization on behalfofits members;”(4) endeavor to reach agreement; and, (5) where applicable, do so prior to the public agency’s adoptionofits final budget for the ensuing year. Notably, Boling’s sua sponte rejection of “(PERB’s) reading of the statutory scheme” was done without any analysis explaining why PERB’s statutory construction is wrong - whetherby referenceto the actual text ofthe relevant provisions, the statutory schemeas a whole, any pertinentlegislative history, or any prior court or administrative decisions. (Cf: San Diego Housing Com. v. PERB (2016) 246 Cal.App. 4" 1, 8, review denied[settled canons of statutory construction explained].) Boling fails to explain how its new 46 construction rather than PERB’sis faithful to the actual text of both sections 3504.5 and 3505, or howthis drastic restriction in a public agency’s meet-and- confer duty will advance rather than defeat the legislative intentions and objectives set forth in MMBAsection 3500. Nevertheless, Boling’s ad hoc announcementthat section 3504.5, not section 3505, defines who hasa duty to meet and confer and when,represents a seismic shift in MMBAjurisprudence disrupting decades of established bargaining practices - defined by section 3505 -in every public agency across California. By exempting the actions ofa public agency’s properly designated administrative officers or other representatives from the meet-and-confer duties established by section 3505, Boling makes an MMBAopt-out scheme available to every city, county and specialdistrict.'? This un-circumscribed new freedom to act outside the MMBAwill impact the quality of public employees’ daily work lives - for example, schedules, shift times, and work rules - as well as mattersat the very core ofthe compensation and employment bargain as occurredin this case. C. Boling Imperils the MMBA and PERB’s Role In Enforcing It It is undisputed that City’s Mayor, whoserves as its Chief Executive Officer and Chief Labor Negotiator, made a decision for City to circumvent ” Published court decisions are binding precedentforall parties covered by the MMBA. (PERB Reg. 32320 and 32215.) 47 the MMBA’s mandatory goodfaith meet-and-confer process and accomplish 401(k)-style pension reform by going to the voters instead. Rather than bring a proposed ballot measure to the City Council as he had donepreviously on matters within the scope of representation, (II, C-1, supra, at p. 19), he used his Office, his staff, and City resources to by-pass Unions andtake legislative action by meansofa citizens’ initiative.”° PERB applied theplain text of the MMBA,aided by a consistent body of MMBAjurisprudenceestablished overthe past five decades, to reject the City’s approach as destructive of the fundamental statewide goals embodied in the MMBA.”’ Thereis no morecritical determination forthis state’s expert laborrelations agency than to decide whether a public agency hasviolated the MMBAbyits failure and refusal to meet and confer in goodfaith over subject matter within the scope of representation. /// * The initiative process is a methodofenacting legislation. (Widders v. Furchtenicht (2008) 167 Cal.App.4th 769; Chula Vista Citizens for Jobs & Fair Competition v. Norris (2015) 782 F.3d 520, 530) Thereis no First Amendmentrightto place an initiative on the ballot because the act of proposing an initiative is the first step in an act of law-makingandit is notcore political speech. (Angle v. Miller (9" Cir. 2012) 673 F.3d 1122, 1132, citing Meyer v. Grant (1988) 486 U. S. 414, 424-25). *! Following NLRB v. Katz (1962) 369 U.S. 736, California courts have adoptedthe private-sector view that unilateral action affecting mandatory subjects of bargaining constitutes aper se violation of the MMBA.(Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 824; Internat’l Assn. ofFire Fighters Union v. City ofPleasanton (1976) 56 Cal.App.3d 959, 967-968.) 48 Boling is the first appellate district to reject and replace the deferential “clearly erroneous”standard of review established by this Court in Banning, with the de novo standard of review announced in Yamaha Corp. ofAmerica v. State Bd. ofEqualization (1998) 19 Cal.4th 1 [Yamaha]. (10 Cal.App.5th at 868-870.) Boling defended de novo review on the unsupported theory that PERB’slegal determination that City violated the MMBAbyits failure and refusal to bargain over 401(k)-style pension reform “did not turn upon [PERB’s] application of legal principles based on any special expertise with the legal and regulatory milieu surrounding the disputed legal principles.” (/d. at 880-886.) Notso. Insisting on de novo review, Boling rejected PERB’s determination at the very heart of the MMBA.Striking out on its own to re-interpret the Act, Boling announced radically different interpretation of the MMBA - one directed at preserving the City’s scofflaw misuseofthe localinitiative power. Boling’s rejection of PERB’s role, together with its rogue statutory construction narrowing the scope of every covered public agency’s duty to engageingood faith meet-and-confer - a duty central to the MMBA’s purpose - sanctions an MMBAopt-out which imperils the MMBAitself. Confronted by the stark choice presented, this Court must determine whether the MMBA - and PERB - will have a future worthy of the state’s purpose to foster labor peace through goodfaith collective bargaining. 49 D. Statutory Agency: Boling Erred In Rejecting PERB’s Determination That City’s Mayor Is Its Statutory Agent Under MMBASection 3505 1. PERB Applied Section 3505’s Express Terms to Find That City’s MayorIs A Statutory Agent With A Duty to Meet- and-Confer The MMBAgovernsapublic agency based on the conductofits agents. Section 3505 defines those agents to include the agency’s governing body and those “administrative officers or other representatives” properly designated “by law” or “by the governing body.” PERB concluded that City’s Mayoris its statutory agent within the meaning of MMBAsection 3505 because the Mayor is an “administrative officer” or “other representative” properly designated as City’s agent “by law” (based on the Mayor’s Charter-mandated duties and responsibilities) and “by the governing body” (based on the Council’s agreement during all past bargaining that the Mayorservesas the City’s ChiefLabor Negotiator). (X:2649-2650; XI:2982-2986, 2988-3001.) Thus, in his capacity as a statutory agent, the Mayor’s unfair practice conduct becamethe City’s unfair practice conduct when he made, announced and implemented a policy decision on City’s behalf to alter terms and conditions of employment for represented employees using the legislative meansofinitiative to bypass their Unions and avoidthe obligation to meet and confer in good faith. (X:2650-2652; XI:2982-2986, 2988-3001.) As PERB noted, City has never disputed the factual finding that the Mayor acted on 50 behalfofCity when pursuing an initiative to reduce pension costs. (X1I:2989- 2990, 2994.) Onthis factual and legal foundation, PERB rejected City’s defense that CPRIwas a purely “private” endeavor exempt from the MMBA’s meet-and- confer requirements. (X:2661-2667; XI:2982-2986, 2988-3001.) “The MMBA’s meet-and-confer provisions must be construed to require City to provide notice and opportunity to bargain over the Mayor’s pension reform initiative before accepting the benefits of a unilaterally-imposed newpolicy.” (XI:2993-4.) PERB’s agency determinationsin this case were exactly as City Attorney Goldsmith explained them in his published 2009 MOLbeforethis controversy erupted:“[N]otwithstanding anydistinctionsin the Charter’s roles for the Council, the Mayor, the Civil Service Commission, and other City officials or representatives,[...] PERB will consider the actionsofall officials and representatives acting on behalfofthe City in determining whetheror not the City has committed an unfair labor practice in violation of the MMBA.” (XVI1:4721, 4727-28, 4730, emphasis added.) 2. Boling Rejected the Provisions of Section 3505 Establishing That Public Agencies Bargain Through Statutorily- Designated Agents On the basis of its new construction of sections 3504.5 and 3505, Boling rejected PERB’s determination that the Mayor’s conduct is relevant when ascertaining whether City complied with its section 3505 duty in 51 connection with the Mayor’s unilateral policy determination announced and implemented byinitiative. Boling concludedthat, notwithstanding the Mayor’s acknowledged Charter-imposed duties and responsibilities as City’s Chief Executive Officer and his role as the City’s ChiefLabor Negotiator (Boling at 882, fn. 36), City’s Mayoris not a statutory agent for City under the MMBA becausebeing an “administrative officer or other representative designated by law orby the governing body” under section 3505 is legally irrelevantto the question ofwho hasa duty to bargain. In fact, Boling wrote the Mayorentirely outofthe unfair practice narrative as having no “legal relevance onthe central issue raised in this proceeding.” (Boling at 865, fn. 16) Accordingly, Boling declared that PERB erred in concluding that City violated the Act when the Mayor implemented a policy decision to eliminate defined benefit pensions for City’s budget benefit and to do so by initiative to bypass Unionsand avoid meet-and-confer because nopolicy determination the Mayor madeas City’s CEO and ChiefLabor Negotiator to change employment terms and conditions within the scope of representation triggered City’s duty to meet-and-confer. (XI:3078-3079; Boling at 881, fn. 34, 882-883, 886.) ” Boling initially dismissed the course of conduct atissue in this unfair practice case as the “participation by a few governmentofficials and employeesin drafting and campaigningfora citizen-sponsoredinitiative,” (id. at 880), and later characterized this conductas “the Mayor’s advocacy for a citizen-sponsoredinitiative affecting employee benefits” - which was neither “inherently wrongful,” nor proscribed by the MMBA merely because the Mayor “occupies public office.” (Ud. at 891& fn. 50.) (Cf II- D, supra, at pp. 21-29.) 52 However, consistent with the text and purpose of the MMBAandall prior judicial and administrative interpretations of it, PERB properly concludedthat section 3505’s commandisnot limited to the governing body. Although the governing bodyis legally responsible for enacting legislation on terms and conditions of employment (e.g., most often by adopting a tentative agreement), the duty defined by section 3505 is also imposed on “other representatives as may be properly designated by law or by such governing body.” City’s Mayoris unquestionably such an “other representative.” Section 3505 cannotbe read as confining itself to policy determinations or intended courses ofaction only of the governing body. PERB hasconstruedall of the statutes under its jurisdiction  as requiring negotiations on proposals to change negotiable subjects whether accomplished through legislative action by the governing body. (XI:3078-3079.) E. Common Law Agency: Boling Erred In Rejecting PERB’s Common Law Agency Findings Within the Scope of Its Expertise Morethan 25 years ago, Inglewood Teachers Assn. v.PERB(1991) 227 Cal.App.3d 767, 781 [Inglewood], held that commonlaw agencyprinciples are within the Board’s expertise, that the substantial evidence test applies to PERB’s factual determinations regarding the existence of an agency relationship, and that the Board’s findings concerning an agencyrelationship are owed deference. The Jnglewoodcourt described PERB’s determination of 53 agencyissuesas centralto its role in interpreting a collective bargaining statute - in that case, the Educational EmploymentRelations Act (Gov. C. § 3540 et seq. [EERA].)”* The Inglewood court held that PERB’sapplication of agency principles - including those that might be considered “commonlaw”theories ~- is a matter squarely within the Board’s purview, and subject to the clearly erroneousstandard of review. (/d. at 776, 778.) 1. PERB Applied CommonLaw AgencyPrinciples Consistent With Precedent and the Statutory Scheme In addition to its determination that City violated the MMBAbased on the conduct of its Mayor as a statutory agent under section 3505, PERB applied commonlaw agencyprinciples while noting that labor boards routinely apply such principles in unfair practices cases and do so with referenceto the broad, remedial purposes of the statutes they administer. (Regents of the University ofCalifornia, (2005) PERB Decision No. 1771-Hatp. 3, n. 2.) Here, PERB concluded that the Mayor had actual and apparent authority to pursue this pension reform measure as City’s agent. An agentis deemedto represent the principal for all purposes within the scope of his actual authority, and those liabilities which accrue to the agent from his transactions similarly accrueto the principal. (Civil C. § 2330; Workman v. 3 Although Inglewood arose under EERA rather than the MMBA, this Court has noted that the purpose of the Legislature’s decision to entrust PERB with administration of the MMBA wasto create a “coherent and harmonious system ofpublic employmentrelations laws.” (Coachella, supra, 35 Cal.4™ 1072, 1090.) 54 City ofSan Diego (1968) 267 Cal.App.2d 36, 38.) Where an agent’s discretion is broad(as is City’s Strong Mayor’s), so, too, is the principal’s liability for the wrongful conduct of its agent unless these wrongful acts are unrelated to the purposeofthe agency.(SuperiorFarming Co. v. ALRB (1984) 151 Cal.App.3d 110, 117; Johnson v. Monson (1920) 183 Cal.149, 150-151; Vista Verde Farms v. ALRB (1981) 29 Cal.3d 307, 312.)(X1:2991.) PERB concluded that City’s Mayor acted with actual authority with regard to CPRI since he acted within the scope of his authority as lead labor negotiator and that application ofcommonlaw agencyprinciplesis consistent with the text of section 3505 making City accountable as principal for the unfair practice conductofits Mayoras astatutory agent. (X1:2993, 2996-2997) Moreover, apparent authority is such as “a principal, intentionally or by wantof ordinary care, causesor allowsa third personto believe the agent to possess. (Civil C. § 2317; Van’t Rood v. County ofSanta Clara (2003) 113 Cal.App.4th 549, 573 [“proofofauthority, either actualor ostensible,[...] may be established by circumstantial evidence”’].) The recordis filled with media reports and public appearances by the Mayor, Councilmembersand City staff discussing CPRI as the Mayor’s initiative. An employer’s high-ranking officials, particularly those whose duties include laborrelations or collective bargaining, are presumed to speak and act on behalfofthe employer such that H/ 55 their words and conduct may be imputed to the employer in unfair practice cases. (X1:2997-3001; see also Vista Verde Farms, supra, 29 Cal.3d at 312.) PERB’s application of agency principles to find that City violated the MMBAbased on the Mayor’s unilateral policy determination and action when using his Office to change pensionsby “private”initiative, is consistent with the published legal advice the Mayor and City Council received from the City Attorney in a 2008 MOL on the subject of “Pension Ballot Measure Questions.” (XVIIE:4708-4717.) In relevant part, this MOL explains that City’s meet-and-confer obligation would betriggeredifthe Mayorinvokeshis constitutional right as a citizen to “initiate or sponsora voterpetition drive to place a ballot measure to amend City Charter provisionsrelated to retirement pensions:” [S]uch sponsorship would legally be considered as acting with apparent governmental authority because of his position as Mayor, andhis right and responsibility under the Strong Mayor Charter provisions[...] City would have the same meet and confer obligations with its unions as [if he were proposing a ballot measure on behalf of City].(Id. at 4710, 4716 & fn.9.) PERB concludedthat this 2008 MOL accurately describes City’s duty to bargain in this case based on the Mayor’s conduct. (X1:3037.) PERB rejected the notionthat City could only be liable for its Mayor’s conduct under 4 In response to this 2008 MOL, Mayor Sanders abandonedthe citizens’ initiative approach and returnedto the bargaining table where he negotiated a new “hybrid” defined benefit/defined contribution pension plan with Unions to achieve his policy objectives. (II, C-2, supra, p. 19.) 56 the MMBAif the City Council had expressly authorized him to pursue a pension reform ballot measure. Allowing City to escapeliability based on this “defense” would frustrate the MMBA’s purpose of promoting harmonious labor relations (§ 3500, subd. (a)) through meet-and-confer. (§ 3505). In fact, as the state’s expert in enforcing the MMBA on a uniform, statewide basis, PERBrelied on this Court’s precedent to explain that such a prerequisite for “express authorization” would underminetheprinciple ofbilateral negotiations by exploiting the “problematic nature ofthe relationship between the MMBA and the local [initiative-referendum] power,”citing Trinity County, supra, 8 Cal.4th at 782. 2. Invoking the General Expertise of Courts In Applying the Common Law, Boling Erroneously Re-construed the MMBAto Reject PERB’s Common Law Agency Findings Boling acknowledgedthe substantial evidence related to the Mayor’s Charter-mandatedrole, (Boling at 886, 889), but rejected PERB’s application of common law agency principles in reliance on Boling’s own new construction of the MMBA. Boling concluded that common law “actual or apparent” agency principles have no applicability here because:first, the “principal”for purposes ofany duty to meet-and-conferis the City Council not City (id. at 881, fn. 34); second, the City Council cannot “be charged with the unapproved conductof its agents” because compliance with section 3504.5 is not triggered by “someaction proposed by a putative agent of the governing 57 body,”i.e., the City’s Mayor(id. at 890, fn. 49); and, third, City Council’s silence and inaction in response to the Mayor’s publicly-announcedintention to change City employee pensionsbyinitiative did not support a finding of apparent agency because the Mayorsaid he was taking action as a “private citizen” and not “as representative for the City Council.” (/d. at 889, fn. 47.) Onthis basis, Boling concluded the Mayoris also not City’s common law agentin labor-related matters.” Boling noted that, even ifthe City Council were chargedas “principal”for the Mayor’s conduct, the Council’s (and thus City’s) liability would depend on that conduct being wrongful ab initio - which Boling had already determined it was not - because the Mayor’s “individual advocacy for a citizen-sponsoredinitiative effecting employee benefits” was neither inherently wrongful nor proscribed by the MMBA merely he “occupies publicoffice.” (/d. at 891 and fn. 50.) Distinguishing the result in Vista Verde Farms v. ALRB (1981) 29 Cal.3d 307, Boling contrasted the Mayor’s “permissible”activities with those ofan agent whose“inherently wrongful and injurious acts [...] would unquestionably constitute an unfair labor practice if engaged in directly by the employer.” (Boling at 891.) M1 * Boling agreed that the Mayor believed his actions promoted City’s best financial interests but found this fact irrelevant whenit is section 3504.5 which defines who has a duty to meet-and-confer. Boling notes there is no evidence the Mayorbelieved he was promoting CPRI on behalf ofthe City Council and no evidence the Council induced him to believe his actions in promoting CPRI were onits behalf. (Boling at 887, fn. 42.) 58 Thus, Boling’s erroneous construction of sections 3504.5 and 3505 to exclude the Mayor from the unfair practice narrative taints every feature of Boling’s analysis and blinds it to this Court’s key point in Vista Verde emphasizing that an employer’s liability does not turn on strict or technical agency doctrines but rather must be determined from the viewpoint of the | affected employees - with the touchstone being whether the employees “would have just cause to believe that [the actor was] acting for and on behalf of management,” or “whether the employer has gained an improperbenefit from the misconduct.” (29 Cal.3d at 319-320.) F. Ratification: Having Exempted the Mayor From Any Meet- and-Confer Duty, Boling Erred In Concluding the City Council Had No Duty to Act 1. City Violated the MMBABythe City Council’s Unfair Practice Conduct As A Statutory Agent UnderSection 3505 City’s governing body,its City Council, is also a statutory agent under section 3505 with a duty to comply with the MMBA’s good faith meet-and- confer mandate before “arriving at a determination of policy or course of action”related to subject matter within the scope of representation. Acts that are not expressly authorized but are within the scope of an agent’s authority are subject to subsequentratification. (X1:3002, citing Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942.) The Council’s independent duty to comply with the MMBAon behalf of City arose when the Mayor deliveredhis “State ofthe City” Address during 59 a formal meeting ofthe City Council in January 2011, announcinghis decision to change subject matter within the MMBA’s scope ofrepresentation by initiative. As PERB noted: The unions’ interest in bargaining with the Mayor without implicating the rights ofthe citizen proponentsis notdifficult to ascertain. [Unions] could have hoped for a compromise proposal with the Mayor, possibly through intervention of the City Council. Even assuming [CPRI] would have succeededonits own, a compromise solution of any derivation would have resulted in the presentation of a competing initiative measure possibly giving the electorate a more moderate option for addressing pension costs. (X1:3034-3035, 3091, fn. 19.) In addition, MEA’s letter to the Mayor dated July 15, 2011, sought bargaining over the pension reform subject matter covered by the Mayor’s initiative effort - subject matter which was clearly within the scope of representation and also covered by existing MOUs. (XIX:5109-10.) Yet, with knowledge of the Mayor’s conduct, the City Council failed to disavow or cure it. Despite Unions’ persistent requests for bargaining, neither the Mayornor the City Council - as statutory agents for the City - took any action to cure the City’s failure and refusal to bargain over this subject matter even though the obligations set forth in section 3505 are expressly /H/ /// //f 60 bilateral and may be invoked “upon requestby either party.’”® (XX:5123-26, 5142-49, 5157-62.) Thus, having had a duty to act to comply with section 3505, the Council’s failure to engage in a good faith meet-and-confer process with Unions onthe subject of401(k) pension reform - either on the Council’s own initiative or in response to Unions’ written requests - at any time during the period after the Mayor’s public announcementin early January 2011 and before any notice of intent to circulate an initiative petition had been filed in early April - or, for that matter, during the many months before the Mayoral- led citizens’ initiative had qualified for the ballot in November 2011 - constituted the City Council’s unfair practice in violation of section 3505. (X:2648-2661; X1I:2982-2986, 2988-3001.) On this basis, PERB concluded that the City Council was prohibited from putting CPRI on the ballot before negotiating with Unions over the mandatory subject matter of 401(k) pension reform. (XI:3042.) /// /// M1 °° A recognized employee organization mayitself trigger an employer’s duty to bargain by a demand to meet-and-confer over a negotiable subject. (Dublin Prof’! Fire Fighters, Local 1885 v. Valley Comm. Svs. Dist. (1975) 45 Cal.App.3d 116, 118 [assignment of overtime work]; Los Angeles County Employees Assn., Local 660 v. County ofLos Angeles (1973) 33 Cal.App.3d 1, 5 [caseloads ofeligibility workers].) 61 2. Based OnIts Conclusion That City’s Mayor Had No Duty to Meet-and-Confer Under Section 3505, Boling Concluded That Its City Council Likewise Had No Duty Boling acknowledgedthat“it is well established as a principle of labor law that wherea party ratifies the conductof another, the party adopting such conductalso accepts responsibility for any unfair practices implicated by that conduct,” such that “ratification may imposeliability for the acts ofemployees or representatives, even whenthe principalis not at fault and takes no active part in those acts,” and, further, that ratification may be express or implied from an employer’s failure to “investigate or respond to allegations of wrongdoing.” (Boling at 892.) However, Boling concluded that the City Council had no independentduty to act as a statutory agent because CPRI was not its proposal within the meaning of section 3504.5 and also had no duty to “disavow or repudiate” the Mayor’s conduct because there was nothing wrongful about it. In fact, Boling is “convinced that (Mayor) Sanders was entitled to support CPRI(either as an individual or through capitalizing on his office’s bully pulpit) because he was not supporting the proposal as the “governing body,” whichis the only entity constrained by the meet-and-confer obligations under the MMBA.” (dd. at 893.) Finally, Boling rejected the notion that commonlawratification could be premised on the City Council’s placing the CPRI on theballotor, thereafter, accepting for City the financial benefits accruing from its passage becausethe 62 City Council could not have declined to do either. According to Boling, “ratification has no application whenthe principal is unable to decline the benefits of an agent’s unauthorized acts,”(id. at 894), such that the Mayor’s opt-out scheme worked exactly as intended and PERB is powerless to provide represented employees and their Unions with any remedy. Boling’s result-oriented reasoning led illogically to its exempting the Mayor from his clear statutory duties and to its restricting the Council’s participation in laborrelations to the point ofimpracticality. Even Boling’de novo rationale does not support this twisted result. G. City’s Duty to Meet-and-Confer Over Mandatory Subjects Did Not Implicate Local Initiative Rights 1. City Had A Duty To Engage In Good Faith Meet-and- Confer Which May Have Led To A City Council-Sponsored Alternative to CPRI or A Competing Ballot Measure As PERB concluded, as soon as the Mayor announcedhis intentions in November 2010 and, thereafter, even when notice to circulate wasfiled in April andthe petition circulating - and even after CPRI had qualified for the ballot - nothing prevented City and Unions from negotiating over a ballot measure on the same subject matter, whetheras an alternative to any citizens’ initiative or as a competing measure. (X1:3034 & fn. 23.) Such a process would not have required altering the CPRI itself. The City Attorney’s 2008 MOL,in fact, explained exactly how such a Council-initiated ballot measure would be bargained in compliance with the MMBA.(XVHI:4709, 4712-15.) 63 Moreover,it is well-settled, and City never disputed, that conflicting ballot measures may be presented at the same election, with the measure receiving the highest vote total prevailing. (Howard Jarvis Taxpayers Assn. v. City of Roseville (2003) 106 Cal.App.4th 1178, 1188.) In fact, the San Diego City Council put a competing ballot measure before voters in response to a duly-qualified citizen’s initiative when deemedappropriate in defense of the City’s budget. (Howard Jarvis Taxpayers Assn. v. City of San Diego (2004) 120 Cal.App.4th 374 [both measures approved but invalidated on cross- motions for declaratory relief].) PERB expressly rejected the contention that City had no authority to meet and confer with Unions simply because it was obligated to place CPRIon the ballot withoutalteration. (X1:3034andfn. 23.) 2. Boling Again Relied On A New Construction of Section 3504.5 to Reframe the Unfair Practice Conduct At Issue, Reject PERB’s Determinations Regarding the City Council’s Role, and Further Eviscerate the MMBA Boling ignored PERB’s conclusion that the City Council had both a duty to meet and confer over the CPRI subject matter and the time and opportunity to do so before putting CPRI on the ballot. While Boling agreed that, when a CPRI-related resolution came before the City Council on December 5, 2011 (XX:5178-5180) - months before the June 2012 primary election and nearly a year before the November 2012 general election -- the Council “arguably” had someflexibility and discretion to delay the initiative vote (citing Jeffrey v. Super. Ct. (2002) 1002 Cal.App.4th 1, 4), Boling found 64 this point legally insignificant to accommodate bargaining under the MMBA on the basis that the City Council had no right to modify the CPRI. (Boling at 872-873 and fn. 25.) Thus, by re-framing the unfair practice conductat issue as a demandto bargain over CPRIin orderto changeits terms, Boling declared that any imposition of a meet-and-confer obligation on the governing body would require an “idle” or “meaningless” act. (Boling at 872-873, fn. 25; 875, fn. 27.) Boling concludes that, even when a citizen-sponsored initiative addresses matters within the “scope ofrepresentation,” the governing body of a public agency has no duty to meet-and-confer because: the meet-and-confer requirements of the MMBAbyits express terms constrain only proposals by the “governing body”(§§ 3504.5, subd.(a) [...]; 3505 [...]. Because a citizen-sponsored initiative does not involve a proposal by the “governing body,” we are convinced there are no analogous meet-and-confer requirements for citizen-sponsoredinitiatives. (Boling at 875, original emphasis.) Accordingto Boling, the agency’s governing bodyis legally entitled to fail and refuse to bargain over subject matter within the scope of representation under section 3504. Rather than harmonize the rights at issue as PERB did, in keeping with this Court’s precedents, Boling erroneously concludedthat the mere existence of a citizens’ initiative seeking to legislate changes in terms and conditions serves to displace the MMBA. /II /// 65 III. By Rejecting PERB’s Decision Harmonizing the Tainted Exercise of Local Initiative Rights With Rights Guaranteed by the MMBA, Boling Has Sanctioned Government’s Use of Citizens’Initiative To Avoid Meet-and-Confer The determination of “the extent to which local regulation of employment matters as prescribed by [a City’s] charter might be superseded by matters of statewide concern is a matter properly decided, in the first instance, by PERB.” Unt’l. Fed. ofProf. and Tech. Engin. v. Bunch (1995) 40 Cal.App.4th 670, 676, review denied.) This Court has twice looked at the intersection between local ballot measures and the MMBAandin both cases found that constitutionalrights of initiative (exercised by a governing body) and ofreferendum (exercised by the electorate) must necessarily yield to the MMBA. (Seal Beach, supra 36 Cal. 3d 591, and Trinity County, supra, 8 Cal. 4th 765.) Before this Court decided Seal Beach in 1984, San Francisco Firefighters v. Bd. ofSupervisors (1979) 96 Cal.App.3d 538, wasthe “state of the law”related to Article XI, § 3(b) rights - holding that a charter city's constitutional right to propose charter amendments in the public interest is “absolute” and “untrammeled”and“shall not be the product ofbargaining and compromise between the public entity's representatives and others.” (/d. at 548.) This court overruled San Francisco Firefighters because the constitutional right to propose charter amendments is not absolute. “[I]t is a truism that few legal rights are so absolute and untrammeled that they can 66 never be subjected to peaceful coexistence with other rules.” (Seal Beach at 598 [internal quotations omitted].) “Fair labor practices, uniform throughout the state” are a matter of statewide concern. (/d. at 600.) The “meet-and- confer requirement [of the MMBA]is an essential componentfor regulating the city's employmentpractices.” (/d. at 601.) Concluding that a governing body’s article XI, § 3(b) constitutional rights must yield to the important statewide objectives of the MMBA,the Seal Beach court ordered the vote on three charter amendmentsset aside and the status quo ante restored until the good faith meet-and-confer requirements of the MMBAcouldbesatisfied. (Id. at 594-95.) A decade after Seal Beach, this Court held in Trinity County that“the Legislature's exercise of its preemptive powerto prescribe labor relations procedures in public employmentincludes the powerto curtail the local right of referendum.” (8 Cal. 4th at 784.) Here, confronted with an avalanche of evidence establishing unfair practice conduct by City when using citizens’ initiative as the meansto by- pass Unions and avoid the MMBA’scentral good faith meet-and-confer mandate, PERB held City to account with a remedy to effectuate the purposes of the Act in this unilateral change case in a mannerfully consistent with this Court’s Seal Beach and Trinity County precedents. The law is clear that initiative rights are important but not absolute. (Widders v. Furchtenicht 67 (2008) 167 Cal.App.4th 769, 786 [courts must guard the initiative power with “both sword andshield”to protect against interference with its proper exercise and to strike down efforts to exploit the power for an improper purpose].) PERBrejected City’s defense that this Court’s Seal Beach precedentis not implicated based on thetactics it used -1.e., a flagrant course of unfair practice conduct by its Mayorclaimingto be a “private citizen” while serving in the capacity of statutory agent, combined with the blameworthy inaction of its City Council. PERB concludedthat, where local control implicates matters of statewide concern, it must be harmonized with the general lawsofthe state (Seal Beach) and, where a genuine conflict exists, local rights are preempted by the general laws affecting statewide concerns (Trinity County). (X1:3008- 17.) A charter city cannot expandits powerto affect statewide matters simply by acting through its electorate rather than through traditional legislative means.(XI:3012.) | There is simply no authority for the proposition urged by City, and adopted by Boling, that the MMBAis superseded by City’s use ofthe local initiative process in a way whichallowsit, as a covered public agency, to circumvent the MMBA’s meet-and-conferobligationasit did here. (XI:3008.) Moreover, PERB concludedthat it need not answerthe questionleft open by this Court in Seal Beach, supra, 36 Cal. 3d 591, 599, fn. 8 - whether the meet-and-confer requirement was intendedto apply to charter amendments 68 proposedbyinitiative - because this case does not ultimately involve a face- offbetween the MMBA’smeet-and-confer requirements and the constitutional right of local initiative. PERB found that City’s use of the local initiative power - by both the actions and inaction of its Mayor and City Council as a meansto by-pass the obligations of the MMBA wasboth an abuse ofthat initiative power and inimical to the MMBA’sgoaloffostering communication, dispute resolution and agreements between public employers and their employees. On these specific findings, PERB determinedthat the exercise of local initiative rights in ¢his case must yield because proper enforcementofthe MMBArequiresit. Otherwise, City, as the offending public employer, would be allowed to benefit from its unfair practice conduct without consequences. (X1:3023-3025, 3034-3035; Boling at 866-867.) PERB explained that: for the City’s elected officials, and particularly the Mayoras the chieflaborrelationsofficial, to use the dual authority ofthe City Council and the electorate to obtain additional concessions on top of those already surrendered by Unions on these same subjects raises questions about what incentive Unions haveto agree to anything. (/d. at 3038-3039.) Boling acknowledged that the core tenets of this Court’s decision in Seal Beach were that (1) the MMBAwasclearly intended to apply to regulate actions by the governing bodiesofcharter cities and (2) the MMBA mandates that those governing bodiessatisfy the procedural requirements (the meet-and- confer process) before unilaterally imposing any changes on matters within the scope ofrepresentation. (Boling at 874.) However, again, by applicationofits 69 erroneous new construction of the MMBA,Boling concludedthat “a city has no obligation under the MMBAto meet and confer” because a duly-qualified citizen-sponsoredinitiative does not involve a proposalby a ‘governing body’ nor could meet-and-confer produce an agreementthat the public agencyis authorized to make.” (/d. at 879.) On the same misguided basis, Boling declared that the questionthis Court left unanswered in footnote 8 of Seal Beach must be answered before any analysis of the unfair practice conduct at issue in this case. Boling’s framing of that question underscores the mischief throughoutits analysis and the reason for its erroneous conclusionsin this case: [Regardless of whether persons associated with city governmentare involvedin drafting and/or campaigning for a citizen-sponsoredinitiative,” do the MMBA’s meet-and-confer requirements apply “with equal force before the governing body of a charter city may comply with its statutory obligation to place onthe ballot a duly qualified citizens’ initiative proposing the same type of charter amendment?”(Boling at 872,fn. 24.) Boling’s “regardless” premiseled it to sidestep the very heart of this dispute -and the reason for PERB’s Decision - whichis the conduct ofCity’s Mayor. Boling approachedthis case as one whereinitiative rights are absolute and whenexercised, regardless of government’s bold, direct and undisputed involvement to avoid the MMBA and by-pass recognized employee organizations, must wholly displace the MMBA. Boling has thus offered a full-throated endorsementfor a public agency’s use of“citizens” initiatives” 70 to eviscerate the statewide rights guaranteed by the MMBAwhilelegislating unilateral changes in terms and conditions of public employment. CONCLUSION Only a reversal of Boling and dismissal of City’s petition for writ of extraordinary reliefwill ensure the continuedvitality ofthe MMBAconsistent with its legislative objectives, and preventa spate of newlitigation to test the uncertainties created when making de novo review of every PERB Decision available around the state. Without a reversal, rights long-ago guaranteed to all public employees and their recognized employee organizations will be defeated by the exercise oflocal initiative rights in one city, and the State’s interest in fostering labor peace will be undermined. By enforcement of PERB’s Decision and the remedy it prescribes within the scope ofits authority to effectuate the purposes ofthe MMBA,this Court will further the principles it carefully crafted in Seal Beach and in Trinity County to assure that constitutional rights of local initiative and referendum are harmonizedwith the statewide goals embodied in the MMBA. IH Hl Hi Hf 71 Dated: &- ha-/ / SMITH, STEINER, VANDERPOOL & WAX (has pAcol. ANN‘M. SMITH Attorneys for Re@l Party in Interest San Diego Municipal Employees Association Dated: f > | 1 ROTHNER, SEGALL AND GREENSTONE SeaWurtirre) ELLEN GREENSTONE Attorneys for Real Party in Interest AFCSME, AFL-CIO, Local 127 72 CERTIFICATE OF COMPLIANCE PURSUANT TO CALIFORNIA RULES OF COURT, RULE 8.520(c )(1) and (3) In accordance with Rule 8.520(c)(1), I certify that the text ofthis brief, after excluding the words permitted by Rule 8.520(c)(3), but including all footnotes, has a typeface of 13 points and, based upon the word count feature contained in the word processing program used to produce this brief (WordPerfect 11), contains 13,812 words. Dated: 5-24 -/7 Cp,K/,Ath “~ ANN M. SMITH 73 PROOF OF SERVICE COURT NAME:In the Supreme Court for the State of California CASE NUMBER: Supreme Court: $242034 Appellate Court: _D069626 and D069630 CASE NAME: Boling,et al.; City of San Diego v. Public Employment Relations Board I, the undersigned, hereby declare andstate: I am overthe age ofeighteen years, employedin the city of San Diego, California, and not a party to the within action. My business addressis 401 West A Street, Suite 320, San Diego, California. On August 23, 2017, I served the within document described as: OPENING BRIEF ON THE MERITS BY ALL UNION REAL PARTIES IN INTEREST on the parties listed below via the method indicated: Party Kenneth H. Lounsbery, Esq. First Class Mail James P. Lough, Esq. & Email Yana L. Ridge, Esq. Alena Shamos,Esq. Lounsbery Ferguson Altona & Peak 960 Canterbury Place, Suite 300 Escondido, California 92025 Telephone: 760-743-1201; Fax: 760-743-9926 Email: email@example.com; firstname.lastname@example.org; aso@I|fap.com (Attorneys for Petitioner Catherine A. Boling, T.J. Zane, and Stephen B. Williams) Hf Mf Mara W.Elliott, City Attorney First Class Mail George Schaefer, Assistant City Attorney & Email M.Travis Phelps, Deputy City Attorney Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Telephone: 619-533-5800; Fax: 619-533-5856 Email: email@example.com; firstname.lastname@example.org (Attorneys for Petitioner City of San Diego) Jose Felix De La Torre, Esq. First Class Mail Wendi Lynn Ross, Esq. & Email Joseph W. Eckhart, Esq. Public Employment Relations Board 1031 18" Street Sacramento, CA 95811 Telephone: 916-322-8231; Fax: 916-327-7960 Email: PERBLitigation@perb.ca.gov; email@example.com (Attorneys for Respondent Public EmploymentRelations Board) BY UNITED STATES FIRST CLASS MAIL. I enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the address(es) above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondencefor mailing. On the sameday that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. The envelope or package wasplacedin the mail at San Diego, California. Ml I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed on August 23, 2017, Pegaif . at San Diego, California.