BOLING v. PUBLIC EMPLOYMENT RELATIONS BOARD

Real Party in Interest, City of San Diego, Answer Brief on the Merits

Cal.October 11, 2017

S242034 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT FILED CATHERINEA. BOLING;T.J. ZANE; AND . STEPHEN B. WILLIAMS, OCT 4 4 2017 Petitioners, Jorge Navarrete Clerk Vv. Deputy PUBLIC EMPLOYMENT RELATIONSBOARD, Respondent, CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYSASSOCIATION, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127; AND SAN DIEGO CITY FIREFIGHTERS LOCAL 145 Real Parties in Interest After a Decision of the Court of Appeal, Fourth Appellate District, Division One, Consolidated Case Nos. D069629 and D069630 CITY OF SAN DIEGO’S COMBINED ANSWERBRIEF ON THE MERITS TO THE OPENING BRIEFS OF RESPONDENT PUBLIC EMPLOYMENT RELATIONS BOARD AND THE REAL PARTIES IN INTEREST UNIONS Mara W.Elliott, City Attorney George F. Schaefer, Assistant City Attorney *M.Travis Phelps, Chief Deputy City Attorney (Bar No. 258246) OFFICE OF THE CITY ATTORNEY 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Telephone: (619) 533-5800 Facsimile: (619) 533-5856 ATTORNEYSFOR PETITIONER AND REAL PARTY IN INTEREST CITY OF SAN DIEGO S$242034 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CATHERINE A. BOLING;T.J. ZANE; AND STEPHENB. WILLIAMS, Petitioners, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127; AND SAN DIEGO CITY FIREFIGHTERS LOCAL145 Real Parties in Interest After a Decision of the Court of Appeal, Fourth Appellate District, Division One, Consolidated Case Nos. D069629 and D069630 CITY OF SAN DIEGO’S COMBINED ANSWERBRIEF ON THE MERITS TO THE OPENING BRIEFS OF RESPONDENT PUBLIC EMPLOYMENT RELATIONS BOARD AND THE REAL PARTIES IN INTEREST UNIONS Mara W.Elliott, City Attorney George F. Schaefer, Assistant City Attorney *M. Travis Phelps, Chief Deputy City Attorney (Bar No. 258246) OFFICE OF THE CITY ATTORNEY 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Telephone: (619) 533-5800 Facsimile: (619) 533-5856 ATTORNEYSFOR PETITIONER AND REAL PARTYIN INTEREST CITY OF SAN DIEGO TABLE OF CONTENTS Page TABLE OF CONTENTS000. ecccccccsssesseeseseececeeceesessescsnscsessceessvasseesresesreananes 2 TABLE OF AUTHORITIES o.oo ccccccccseccessccesssssrscssssrecsaestevecsssnacstesseses 4 T. INTRODUCTIONoo.eccesescnecessesescsacesecsecsssssvecsecseescracsaenareatatanauss 8 I]. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND... 10 A. Competing Pension Reform Concepts .........cccssessessseesesserecsesecees 10 B. The Citizen Proponents Initiative — the CPRI....cucu ceecseeeeee. 11 C. The Unions Demandto the City to Meet-and-Confer Over the CPRI13 D. Unfair Labor Practice Charges andInitiation ofPERB Action....... 14 FE. PERB’S DeCiSion.......cccesssssssesceesescscsscsssssssescecscsecrasseeecaseeeaneavacas 15 F. Writ for Extraordinary Relief and the Court ofAppeal Opinion..... 17 G. Petitions for REVIOW 0... cccccccsssseesessssecsessssacscsssnesecescsesecsessesecseseeues 18 TIT. LEGAL ARGUMENToocecccecscsesssssseecsecsecessessvsssreseveecseasereseseecaseneens 18 A. The Court of Appeal Correctly Applied a De Novo Standard of Review Pursuant to Yamaha as the Material Facts Were Undisputed _ and PERB’s Determination the CPRI Was Not a “Pure” Citizens’ Initiative Turned Nearly Entirely on Application of Legal Principles Outside of PERB’s Expertise ........cccceccesecssssssscssssessssestececveseacassesee 18 B. The Court of Appeal Opinion Did Ultimately Determine PERB’s Decision Was Legally Erroneous.........c.cccccccsssesssssssessececserecsecserecseeee 22 C. PERB andthe Unions’ Interpretation ofGovernment Code Section 3505 to Attempt to Turn the CPRIinto a City Sponsored Initiative Ignores Fundamental Principles Governing the Charter Amendment Process and Limitations Established by the City’s Charter..............23 D. The Court of Appeal Correctly Determined PERB’s Attempt to Use a Common Law Agency Theory to Find Sanders’ Actions Transformed the CPRI Into a Government SponsoredInitiative Was EQTOMCOUS 0.0... cececseescesceecesseessssese coecsesessessesssssuscseseaceseesseessraauaresaesesns 26 1. Sanders Did Not Have Actual Authority to Unilaterally Speak on Behalf of and Bind the City...ccccececesssscsecsecseresecsecsesesees 27 2. Sanders Did Not Have Apparent (Ostensible) Authority to Speak on Behalf of and to Bind the City...cccesssesscsesesesesen es 28 3. The City Council Did Not Create an Agency Relationship by Ratification 2... ccecccssssscsesessestssessesessessessssessesacaatacssensanssseusen 30 4. The Unions Never Requested to Meet-and-Confer Over a Competing Ballot Measure, Rather, They Demanded to Meet- and-Confer Over the CPRI Because TheyInsisted It Was a “Sham”Citizens’ Initiative and Really the City’s Initiative...... 31 E. The Citizens’ Initiative Power Is Broad, andIt Is the Duty ofthe Courts to Jealously Guard and Protect Such Powef......ccccecccsessecessee 33 1. Citizens May Bring anInitiative and Directly Legislate On Any Matter Over Which a Municipal Governing Body MayLegislate35 2. The Legislature Has Never Indicated the MMBA in Any Way Limits the Citizens’ Initiative Powef....c.c.cccesseecsecesteescseecesesse, 35 3. No Case Has Declared That the MMBAPreempts or In Any Way Limits the Citizens’ Initiative Power...cccssessessscecsessssessesee 36 a. The Seal Beach Case..i.cceccccccssesssssssssessesesesssessesesasesseses 36 b. The Trinity County Case wo... iecccccccccssssessesessssssosssece cosseesecee. 39 4. The Meet-and-Confer Requirement ofthe MMBAis Procedural, and, Therefore, Inapplicable to Citizens’ Initiatives..................40 F. The First Amendment Protected the Mayor’s Actions .......0c0000.... 41 1. The City’s Mayor (or Councilmembers) May Draft anInitiative Ballot Measure and Seek Private Citizens to Carry It Forward . 46 2. The PERB Decision Imposes an Impermissible Prior Restraint on Sanders’ Speechnn... cecscscssscssessscsesseresssssssesssesseeasesaaressseeseecesee 49 G. State Law Protected Sanders’ Actions ......cccccesescssescseesseseeseee eee 50) TV.CONCLUSION o.oo cceseessssessstessscecuececssssessssessacsessseaescitsnsuvaresscsaversece 52 CERTIFICATE OF COMPLIANCE......cocceccceccescsessessssessesesesssscesecssevessece 54 TABLE OF AUTHORITIES Federal Cases Bond v. Floyd, 385 U.S. 116 (1966)oecece Boosv. Barry, 485 U.S. 312 (1988) oocetesseseetesssessstesssssseessesssreseavenne Connick y. Myers, 61 U.S. 138 (1983) oeec eseeesseestacectecsessstecesseeesseseeseuesne Garcetti v. Ceballos, S47 U.S. 410 (2006) oo... ceccscececcrseeeseesseeeens Meyerv. Grant, 486 U.S. 414 (1988) oncececeteesessesenesstesscesseecsssessaceseesrane Nebraska Press Ass’n v. Stuart, AQT U.S. 539 (1976) vecsccsssssessessesessesssssssesessessstestsstssesesssseaee Pickering v. Bd. ofEd. ofTp. High School Dist. 205, 391 U.S. 563 (1968) occcececsetsesseecesscsesestssserseeassass Woodv. Georgia, 370 US. 375 (1962) cecccssssssecsessssessssscsesessesrearsssassesssesesseesessen State Cases Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121 (1999)occccecsecsceeseesserssanaesens Associated Home Builders etc., Inc. v. City ofLivermore, 18 Cal. 3d 582 (1976) oo.ccccccccesscssscsscssscesscsessasesesseresretsaseesen Banning Teachers Ass'n v. PERB, 44 Cal. 3d 799 (1988) occcceceseceesseuecsesesseeseeseesscecseveesenees Bolger v. City ofSan Diego, 239 Cal. App. 2d 888 (1966) .eccccececcessesessssessessesessecsasssssssescssessessesessese Calaveras City v. Calaveras Cty. Water Distr., 184 Cal. App. 2d 276 (1960)... California Cannabis Coalitionv. Cityof Upland, 3 Cal. Sth 924 (2018)ooceeecseessesesneeesseesssessesecoesseesceeeees F& @ 44 se eeeeeseeeeee 45 4B setae neon ees 45 eceeseceeeeere 50 sie enaeeneennees 4] eosteeteenetnans 4] 25 27 veteseaees 34, 36 TABLE OF AUTHORITIES (con't) Contra Costa Co. v. Daly City, A8 Cal. App. 622 (1920) rccssssecssssssessssessessssessssesseesssesstseeseee Cotta v. City & County ofSan Francisco, 157 Cal. App. 4th 1550 (2007) oo. .ecccscecseccese cesses steteseeeen Cumero v. PERB, AD Cal. 3d 575 (1989) oo. cecccecessssecsececssssscsessssaceceesensaseevscneeeen DeVita v. County ofNapa, 9 Cal. 4th 763 (1955) o.ocesesccsccsssccsscsecscsesseussassesseseiessssesssaee DomarElectric, Inc. v. City ofLos Angeles, 9 Cal. 4th 161 (1994)oieccccceesessseeseesecestecsesasseeesseneeen Dynamic Ind. Co. v. City ofLong Beach, 159 Cal. App. 2d 294 (1958) ....sccesesssssssssssssssesssssseesecreseesee Exparte Stone, 48 Cal. App. 463 (1920) ...csscscssssessevesecssssessssessessasesesesesraseceee First Street Plaza Partners v. City ofLos Angeles, 65 Cal. App. 4th 650 (1998)... Friends ofSierra Madre v. City ofSierra Madre, 25 Cal. 4th 165 (2001).... Page estseenaneaee 29 esseeeneeeaee 30 bene 21,22 beeen 35, 38 ieeeeteeneee 27 eeseeeeeeees 27 set eneeseenene 25 Al Hill y. Citizens Nat'l Trust &Savings BankofLosAngeles, D Cal. 2d 172 (1937) vcrccscsssssssssessesssssessssssssssstssessessessssessesessevee Inglewood Teachers Ass’n v. PERB, 227 Cal. App. 3d 767 (1991) vecceseccsssscessssscssssesssssvoseeee Jahr v. Casebeer, 70 Cal. App. 4th 1250 (1999) ..vccccsesseccsssscscssssssesscsereesssseseece Jeffrey v. Superior Court, 102 Cal. App. 4th 1 (2002) ...cecccscsssscessesessesssssssssessisesesseseseeee Kaplan v. Caldwell Banker Residential Affiliates, Inc., 59 Cal. App. 4th 741 (1997) cccscsssscessssssssssvsssesessesseseeseseeee Kugler v. Yocum, 69 Cal. 2d 731 (1968)... Coordination Committee, 28, 29 21 wee 39 bese esete eens 33 .. 20 League of WomenVoters ofCalifornia v. Countywide Criminal Justice 203 Cal. App. 34 529 (1980) ..esccscsccssssssssessesssvessessssssseesesese 45, 46, 47 5 TABLE OF AUTHORITIES (con't) Page Legislature v. Eu, S4 Cal. 3d 492 (1991) ccc ccccsessescscssscsssssesnesrsvsesesesscsevesesssseesecees 21, 52 Lockyer v. City and County ofSan Francisco, 33 Cal. 4th 1055 (2004) oo ccccccccssscecsessssesscsessssessseseavsssarestsstenerestesess 23 Los Angeles Unified School Dist. v. PERB, 191 Cal. App. 3d 551 (1983) ocecccccccecscscecsasssatstscesssessvsceessessececesees, 21 Mannion v. Campbell Soup Co., 243 Cal. App. 2d 317 (1966) ..c.cccccccessssessesesesssssssstesesscsscsesssesessecece 28 Morrow y. Los Angeles Unified Sch. Dist., 149 Cal. App. 4th 1424 (2007) occccescscsesessssecstescecesseusevecesecees, 43 Native American Sacred Site and Envt’l Protection Ass’n v. City ofSan Juan Capistrano, 120 Cal. App. 4th 961 (2004) oo.cccsssscsestsecsesseseseceeesseteceseeeee, A] Perry v. Brown, 52 Cal. 4th 1116 (2011).ccecsescssecsesesearecstesaresessesessssreesees 31, 34 Rakestraw v. Rodrigues, 8 Cal. 3d 67 (1972) oo cccesessssesesesssssesecsssseseeseeessesssseseresessusssessssseseces 31 Raven v. Deukmejian, S2 Cal. 3d 336 (1990)oo. scessssessseesestscscsessessssasesecssesstasesessesssvesseveseeces 34 San Diego Municipal Employees Ass’n. v. Superior Court, 206 Cal. App. 4th 1447 (2012)occcccccssssscscsesesececsesssveseenseeses 14,15 Save Stanislaus Area Farm Economy v. Bd. ofSupervisors, 13 Cal. App. 4th 141 (1993) oo.ccesssssssssessesestesessssatsesessesstesseeseces 31 Seal Beach Police Officers Ass’n v. City ofSeal Beach, 36 Cal. 3d S91 (1984)onceccsessessssesecesssssesssststsssesessvavecsveateecess 36, 37 Stanson v. Mott, 17 Cal. 3d 206 (1976) oo. esessssscsesessessssesessasessesssusaratassesassssvsrssssesseceeees 51 Troost v. Estate ofDeBoer, 155 Cal. App. 3d 289 (1984) oo. ecccsccesssssssesssssesessscecessrseceneeese. 20 Tuolumne Jobs & Small Business Alliance v. Superior Court, SO Cal. 4th 1029 (2014) occcccscsssscsessevesseussuesustsssssseevesssssssseeeceeseces 34 Votersfor Responsible Retirement v, Bd. ofSupv. of Trinity County, 8 Cal. 4th 765 (1994) ooo ccccsscsessssseessssesssssssessessssssesseeverseeee 37, 39, 40 6 TABLE OF AUTHORITIES (con't) Page Yamaha Corp. ofAmerica v. State Bd. ofEqualization, 19 Cal. 4th 1 (1998) ooocece cecsessesssseseesssseescsscseeecseeccseeeesereenasens 8, 19, 20 Young v. Horizon West, Inc., 220 Cal. App. 4th 1122 (2013) occcc ccececseccessecseseesecerenessaeseseeeeeess 28 Statutes Cal. Civ. Code § 2316...cccccsccnsesecnacecseceeacsnessereeseeeseenaaecsassasansaeeeseees 28 Cal. Civ. Code § 2317 occcacscscssesecsacecsecesesensnseseesesseesseauscnesescansasereseas 28 Cal. Elec. Code § 9032 .....cccccccccsesssesessseceecsssssessecsececsereesereussssessvarsasceseness 31 Cal. Elec. Code § 9202(a) o..ccccccccccssecseressssesseeesseceaeecsaseeeseessucessseessesesseens 44 Cal. Elec. Code § 9203... cccceccscsscssssssesecesssssecsssecsacecsaseecesssaseesscecsereseaeass 44 Cal. Elec. Code § 9265.0... cccsessseesecssecsecesessscseseeecsaesseseeuseneesersarseeeneeans 44 Gov't Code § 3203... ciccccccsseccssecssescesesaeeesaesssesecsasesecreescneeseeessenessenes 48, 50 Gov't Code § 3209...eeesesecsecsssesscsesecsesssessecseeseecssessecsauseeesseeaneees 48, 50 Gov't Code § 3504.5oescseceseeseceeseceessaessteesevececssessecesuseneesscenaces 10, 22 Gov't Code § 3505.0... ceesseseceeceseeseceeseceessaesanseseeerecssssseseseeessessessveresseeeas 24 Other Authorities San Diego Charter § 11 occ.ceccseescsessseceesscsesssseesscecseeeensreessssassassases 23, 28 San Diego Charter § LL.D occcece csesecessecsecsecesecessscessscessnecsescnevseees 24, 28 San Diego Charter § 15 oo. ccesesssccsseceenecsssssssseescessseesaseensetesesesasseensenaey 23 San Diego Charter § 270...cccsesesccsssssecesseescecseseeseeessecseseseseseeesesessessseeness 23 San Diego Charter § 270(C)......cccccsssssssceesscseeecsecesseeeesesseeeseaserscrecseseesasasees 23 Constitutional Provisions Cal. Const, art. 11, § 8.0...cc ccccsesscssssesesecsssessecresecaeecseseeeceessecessaususeeseseenes 39 Cal. Const., art. XI, § 3(D)ccc eecceceseessseccsseseesesssesecsesscscessuesscsacseneeesracees 34 Administrative Decisions City ofSan Diego (Office ofthe City Attorney), PERB Decision No. 2103-M (2010), wo... cccccccssessssssceesscesseerssssvestsseesessnees 45 Rio Hondo Community College District, PERB Decision No. 128 (1980) oo... .ccccecsesecsesesseseceesscussscuesssvsescssaseeseenaees 45 State of California (Department ofTransportation), PERB Decision No. 1176-S (1996) oo... .ccccccseccsesseesssseessceseseesscsessaneesaveaees 4S 7 Petitioner and Real Party in Interest City of San Diego(City) submits this Combined AnswerBrief on the Merits in response to the Opening Brief filed by California Public Employment Relations Board (PERB)and the Opening Brieffiled by San Diego Municipal Employees Association, Deputy City Attorneys Association, American Federation of State, County and Municipal Employees, AFL-CIO, Local 127, and San DiegoCity Firefighters Local 145 (hereinafter referred to collectively as “Unions”) which seek to reverse the Decision of the Court ofAppeal, Fourth Appellate District, Division One, published in Case No. D069626 (consolidated with Case No. D069630), Boling v. Public Employment Relations Board, 10 Cal. App. 5th 853 (2017) (hereinafter referred to as “Opinion”or “Opn.”). I. INTRODUCTION PERB’s Decision,that a duly certified citizens’ initiative could be deemed “impure”becauseofa public official’s support was unprecedented. Neverbefore had a State agency determinedit had the powerto rule onthe validity of a citizens’ initiative. In makingits “purity” determination, PERB waspresented with unique questions oflaw in numerousareas outside of its expertise. Accordingly, in reviewing PERB’s Decision the Court of Appeal properly applied this Court’s holding in Yamaha Corp. of Americav. State Bd. ofEqualization, 19 Cal. 4th 1 (1998), that the deference given to an administrative agency’sstatutory interpretation is fundamentally situational, and becausethe issues to be decided were purely legal based on undisputed material facts, the appropriate standard ofreview was de novo as opposedto clearly erroneous. The Opinion correctly recognized thatit is thejudiciary — not PERB — that ultimately must decide the “purity”of a duly certified citizens’ initiative.P iy 8 The Opinionalso properly interpreted Government Codesections 3504.5 and 3505 in relation to the undisputed facts of the case. The Court of Appeal correctly determined PERB’s attempts to nullify the Citizens’ Pension Reform Initiative (CPRI) by finding Mayor Jerry Sanders (“Mayor”or “Sanders”’) was acting as an agent of the City when supporting a citizens’ initiative was misguided and ignored fundamentalprinciples governing the Charter amendmentprocess andlimitations set forth expressly in the City’s Charter. California’s Constitution provides only two waysto propose amendmentsto the City’s Charter. Either a proposal madethrough the citizens’ initiative process, or a proposalby vote of the City’s “governing body” — the City Council. There is no other method. It is undisputedthat the Citizen Proponents! were not agents of Sanders or the City Council. It wasfurther undisputed that the City Council did not propose the CPRI, and the City’s Mayordoesnot have the powerto unilaterally propose or decide to submit an initiative on behalf of the City, that authority rests solely with the City Council and is nondelegable. Furthermore,in the most public of settings, Sanders continuously stated he wasactingas a privatecitizen. PERB,in its appellate briefing, even admitted that Sanders had constitutional and statutory rights as a private citizen to take positions on matters of City employee compensation, including the CPRI. Yet, PERB and the Unions contend such rights were somehowlost due to alleged improper use of emails and public resources. However, no authority exists for nullifying Sanders’ constitutional rights, an election, and denying the Citizen Proponents and the hundreds of thousandsofpetition signers and ' “Citizen Proponents”refers to Petitioners and Real Parties in Interest, Catherine A. Boling, T.J. Zane, and Stephen B. Williams. 9 voters their reserved constitutional right to initiative due to any alleged violation. A long line ofcases clearly holdthat citizens’ initiatives are not subject to procedural requirements that might otherwise be imposed on government body action,like the meet-and-confer process of the Meyer- Milias-Brown Act (MMBA), regardless of the substantive law that might be involved. To hold otherwise would unconstitutionally limit the people’s reserved initiative powerand disenfranchise the very people who havethe greateststake in the City’s fiscal responsibility. PERB and the Unions’ attempt to expand the MMBA’s meet-and-confer obligationsto citizens’ initiatives would unconstitutionally infringe upon First Amendment and statutory rights and wouldlimit the people’s reserved initiative power. Accordingly, the City respectfully requests that this Court affirm the Court ofAppeal’s Opinion which correctly annulled PERB’s Administrative Decision. I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND A. Competing Pension Reform Concepts In early November 2010, Councilmember DeMaioreleasedhis “Roadmap to Recovery,” which included a proposal to replace defined benefit pensions with a 401(k) style plan for all new hires and a freeze on pensionable pay for five years. (XVI AR 193:004103-94.)? * Citations to the Administrative Record (AR) include volume number, tab number, and page number. For example, XVI AR 193:004103-94, refers to Volume XVI, Tab 193, pages 4103 through 4194. 10 On November 19, 2010, Sanders announced he wouldseek to place an initiative on the ballot to eliminate defined benefit pensions forall but safety (police,fire and lifeguard) new hires and offer a 401(k) style plan. (XVII AR 195:004745-49.) Sanders and Councilmember Faulconer met with business leaders of the Lincoln Club, San Diego County Taxpayers Association (SDCTA) and Chamber of Commerceto describe their pension reform concept. However, they were “lukewarm”to the Sanders’ concept and preferred DeMaio’s plan. (XV AR 192:003801:25-3802:2.) They told Sanders his concept wasnot “tough enough”and did not save enough money, and they only wanted one initiative to go forward. (XIII AR 190:003481:2-22; XIV AR 191:003575:2-9.) On December17, 2010, the SDCTAvoted to adoptpension reform principles including a 401 (k) plan for new hires. (XXIII AR 200:005769.) On January 12, 2011, Sanders announcedin his State ofthe City address that “acting as a private citizen” he would “soonbringto the voters an initiative to enact a 401(k) style plan thatis similar to the private sector’s and reflects the reality of our times.” (XVIII AR 195:004823.) In early March 2011, the SDCTA and Lincoln Club determined that DeMaio’s plan was more in line with their pension reform principles and they informed Sanders that they were going to move forward with or without his input or support. (XVI AR 191:003575:2-9.) A series of meetings ultimately took place between supporters of the competing proposals. B. The Citizen Proponents Initiative — the CPRI The CPRI wasdrafted notby attorneys paid for by the City, Sanders, or the campaign committee formed to support the Sanders’ pension reform concept, but by a private law firm — Lounsbery Ferguson Altona & Peak — which was hired by the SDCTA.(XIII AR 190:003482:13-19; XV AR 1] 192:003994:13-3995:11.) The CPRI (XIX AR 196:005013-21) differed in many key respects from Sanders’ concept and contained many components Sanders expressly opposed. (XIH AR 190:003482:22-24.) On April 4, 2011, the Citizen Proponents,the official proponents of the CPRI, whom PERB found were notagents of the City or Sanders (XI AR 186:003088-89), presented their notice of intention to circulate petitions to place the CPRI onthe ballot. (XIX AR 196:005009, 5012.) Sanders did not run the campaign for the CPRI,it was run by the head of the Lincoln Club, Citizen Proponent T.J. Zane. (XIII AR 190:003491:21- 3492:10; XI AR 186:003089.) Sanders did not attend any strategy sessions. (XII AR 190:003491:26.) While he did enthusiastically support the CPRI and mentioned it in some speeches, no evidence showedhe had any control over signature gatheringorits ultimate passage. On September30, 2011, Citizen Proponent Zane delivered the petition sections andsignatures to the City Clerk and attested they containedat least 94,346 valid signatures. (XVI AR 193 004065.) They were forwarded to the San Diego County Registrar ofVoters (SDROV) to officially verify the signatures, and on November8, 2011, the SDROV certified the CPRI petition had received a “SUFFICIENT” numberofvalid signatures requiring it to be presentedto the voters as a citizens’ initiative. (XX AR 197:005164.) On December5, 2011, the City Council passed a resolution of intention (R-307155) to place the CPRI on the June 5, 2012 Presidential primary electionballot, as required by law. (XVI AR 193:004067-69.) And on January 30, 2012, fulfilling its ministerial duty under then Election Code section 9255(b)(2), the City Council enacted Ordinance O-20127 which placed the CPRI on the June 5, 2012 Presidential primary election ballot as 12 Proposition B. (XVI AR 193:004071-89.) The CPRIcalled for certain aspects of the proposed amendmentto take effect beginning July 1, 2012. (XIX AR 196:005015 (proposed Charter section 70.2).) The CPRI was ultimately approved by 65.81% of the City’s voters. (XVI AR 193:004094- 96.) C. The Unions Demandto the City to Meet-and-Confer Over the CPRI On July 15, 2011, the San Diego Municipal Employees Association (SDMEA)wrote to Sanders demanding that the City had an obligation under the MMBAto meet-and-confer over the CPRI. (XIX AR 196:005109.) SDMEA’s letter informed Sanders that they would treat the CPRI as his “opening proposal.” Ud.) The City Attorney’s Office respondedthat the City had no meet-and-confer obligations because there wasno legal basis upon which the City Council could modify the CPRI if it qualified for the ballot, rather, the Council needed to comply with the Elections Code and place the CPRI onthe ballot if it met the signature and procedural requirements set forth therein. However, the City did assure the Unions that if the CPRI did qualify for the ballot and was approved by the voters, the City would engage in the meet-and-confer process over any impacts identified by the Unions. (XX AR 197:005155.) Accordingly, the City declined the Unions’ multiple requests to meet-and-confer over the CPRI. (See XX AR 197:0051 15-17, 5151-5155.) The Unionsnever requested that the City meet-and-confer over a competing ballot measure. Rather, the Unions’ multiple demandsclaimed the City was obligated to meet-and-confer over the CPRI because they alleged “the notionthat [the CPRI] is a citizens’ initiative is pure fiction,” and insisted the CPRI was the “City’s initiative.” (XX AR 197:005143.) 13 D. Unfair Labor Practice Charges and Initiation of PERB Action On January 19, 2012, SDMEAfiled an Unfair Practice Charge (UPC) with PERB overthe City’s refusal to bargain over the CPRI because the City claimed it was a “‘citizens’ initiative” and not the “City’s initiative.” SDMEA’s UPCstated the City rejected “each of MEA’s several demands for meet and conferover the CPR Ballot Initiative, . . .” (1 AR 1:000011.) It made no allegationthat the City refused any request to meet-and-confer over a potential competing ballot measure. Three other City employee unions, the DCAA,Firefighters Local 145, and AFSCME Local 127, also filed UPCs with PERB, and embracedtheallegations of the SDMEAUPC.Shortly after the UPCs were filed, PERB filed administrative complaints contending the City’s alleged MMBAviolation wasits denial of the Unions’ requests to meet-and-confer over the CPRI before placing it on the ballot. (III AR 13:000572-3; IIT AR 27:000836; V AR 48:001181; and V AR 62:001408.) On January 31,2012, SDMEAfiled a request for injunctive relief with PERB, which PERB granted. (II AR 4:000246-249.) PERB then filed a superior court action seeking to enjoin the City from placing the CPRI on the ballot, but was rejected. San Diego Municipal Employees Ass'n.v. Superior Court, 206 Cal. App. 4th 1447, 1452-53 (2012). After PERB administrative hearings were scheduled, the City soughta stay in superior court. After the trial court granted the City’s stay, SDMEA pursued writ relief. Jd. at 1454-55. The Court ofAppeal concludedthe stay was improper and it was vacated. The Court of Appeal returnedthecaseto PERB jurisdiction solely on the basis of SDMEA UPC’s claim that the CPRI wasnot true citizen-sponsoredinitiative but was instead a “sham” 14 device employed by the City using “strawmen’”to circumvent the MMBA. Id. at 1460, 1463; see also Opn.at p. 42, n. 33. E. PERB’s Decision A PERB Administrative Law Judge (ALJ) conducted four days of administrative hearings in July 2012. (VIII AR 147:002303-13; [IX AR 148:0023 15-423; 150:002428-74.) On February 11,2013, the ALJ issued his Proposed Decision finding the City violated the MMBAbyfailingto meet-and-confer with the Unions over the CPRI. (X AR 157:002613-75.) On December29, 2015, PERB issued its Decision affirming and adopting the ALJ’s Proposed Decision with minor modifications. (XI AR 186:002979-3103.) It abandoned the “sham”/“strawman”theory, finding the Citizen Proponents were not agents of Sanders or the City as the Unions alleged. Instead, it concluded the City violated the MMBA whenit refused to meet-and-confer over the CPRI, based on theoriesofstatutory agency and common law agencyprinciples. (XI AR 186:003005.) Specifically, PERB found that: (1) underthe City’s Strong Mayor form of governance and commonlaw principles of agency, Mayor Sanders wasa statutory agent of the City with actual authority to speak for and bind the City with respect to initial proposals in collective bargaining with the unions; (2) under commonlaw principles of agency, the Mayoracted with actual and apparent authority when publicly announcing and supporting Proposition B; and (3) the City Council had knowledge of the Mayor’s conduct, byits action and inaction, and, by accepting the benefits of Proposition B, thereby ratified his conduct. (XI AR 186:003005.) PERB Ordered the City to cease and desist from: (1) Refusingto meet and confer with the Unions before adopting ballot measures affecting 15 employee pension benefits and other negotiable subjects; (2) Interfering with bargaining unit members’ right to participate in the activities of an employee organization of their own choosing; and (3) Denying the Unions their right to represent employees in their employmentrelations with the City. (XI AR 188:003122.) PERB also ordered the City to take the following, among other, affirmative actions: (1) Upon request, meet-and-confer with the Unions before adopting ballot measures affecting employee pension benefits and/or other negotiable subjects; (2) Upon request by the Unions, join in and/or reimburse the Unions’ reasonable attorneys’ fees and costs for litigation undertaken to rescind the provisions of Proposition B adopted bythe City, and to restore the prior status quo as it existed before the adoption of Proposition B; and (3) Makecurrent and former bargaining-unit employees whole for the value of any andall lost compensation, including but not limited to pension benefits, offset by the value of new benefits required from the City under Proposition B,plusinterest at the rate of seven (7) percent per annum until Proposition B is no longerin effect or until the City and Unions agree otherwise. (XI AR 188:003122-23.) The PERB Decision admitted it did not purport to resolve the constitutional issues raised by the City, and acknowledged “the Cityraises somesignificant and difficult questions about the applicability of the MMBA/’s meet-and-confer requirement to a pure citizens’ initiative.” However,it concluded “thoseissues are not implicated by the facts ofthis case,” and therefore, chose not to address them.” (XI AR 186:003006.) 16 F. Writ for Extraordinary Relief and the Court of Appeal Opinion On January 26, 2016,the City filed a timely Petition for Writ of Extraordinary Relief seeking to annul PERB’s Decision. The Citizen Proponents also filed their own Petition. The Court of Appealissued the writ ofreview on August 17, 2016, and oral argument took place on March 17, 2017. The City’s and Citizen Proponents’ Petitions were consolidated for purposes of opinion and on April 11, 2017, the Court ofAppeal’s Opinion was issued. The Opinion grantedthe writ petitions and annulled PERB’s decision. The Opinionheldthat the meet-and-confer obligations underthe MMBAapplyonlyto a proposed charter amendmentplaced onthe ballot by the governing body ofa charter city, but has no application when such proposed charter amendmentis placed on the ballot by citizen proponents throughtheinitiative process. (Opn.at p. 6.) Despite several people occupying elected and non-elected positions in City government providing support for the CPRI, the Court ofAppeal concluded PERB erred whenit applied agencyprinciples to transform the CPRI into a governing-body- sponsored ballot proposal. Notwithstanding the support given to the CPRI by Sanders andothers, there was no evidence the CPRI was ever approved by the City Council (the City’s governing body), and, therefore, the Opinion held PERB erred whenit concluded the City was required to satisfy the concomitant “meet-and-confer’”obligations imposed upon governing-body-sponsored charter amendmentballot proposals.Id. 17 Both PERB andthe Unionsfiled rehearing petitions which were denied. G. Petitions for Review PERB and the Unionseach filed Petitions for Review, which were granted on July 26, 2017. The Court identified two main issues: (1) When a final decision of the Public Employment Relations Board under the Meyers-Milias-Brown Act (Gov’t Code §§ 3500 et seq.) is challenged in the Court of Appeal, what standard ofreview applies to the Board’s interpretation of the applicable statutes and its findings offact?; and (2) Is a public agency’s duty to “meet and confer” under the Act limited to situations in which the agency’s governing body proposesto take formal action affecting employee wages, hours, or other terms and conditions of employment? Ii. LEGAL ARGUMENT A. The Court of Appeal Correctly Applied a De Novo Standard of Review Pursuant to Yamaha as the Material Facts Were Undisputed and PERB’s Determination the CPRI WasNota “Pure” Citizens’ Initiative Turned Nearly Entirely on Application of Legal Principles Outside of PERB’s Expertise PERB and the Unionscontend the Court of Appeal’s Opinion created a conflict regarding the proper standard ofreview that should be applied when an appellate court considers PERB’s interpretation ofstatutes within its jurisdiction. They contend the “clearly erroneous”standard of Banning Teachers Ass’n v. PERB (Banning), 44 Cal. 3d 799 (1988) should have been applied, as opposedto the “de novo”standard ofreview the 18 Court of Appeal found was applicable pursuant to Yamaha Corp.of America v. State Bd. ofEqualization (Yamaha), 19 Cal. 4th 1 (1998). They argue the Opinion “overextends” Yamaha. Their argumentfor applicationof the clearly erroneous standard of review is overly simplistic and ignores the glaring differences between Banning and the caseat issue. The Banning Court was only addressing a pure laborrelationsissuethat clearly fell within the Education Employment Relations Act (EERA), an area unquestionably within PERB’s expertise. Banning, 44 Cal. 3d at 804-05. Banning determined the Court of Appeal’s application of a per se rule that parity agreements wereillegal, in part to spare the reviewing court the task ofhaving to examine claims on a case- by-case basis, deprived PERB “ofits statutory function to investigate, determine, and take action on unfair practice charges to effectuate the policy of the EERA”and therefore failed to provide PERB’s interpretation the deference to which it was entitled. Jd. at 805. The situation confronted by PERB in this case was nothinglike the situation in Banning. It was undeniably unique, and presented a confluence of numerousareas of law outside of PERB’s expertise. (Opn.at pp. 43-44.) Accordingly, the Court ofAppeal looked to Yamaha for guidance asto the appropriate standard of review to apply to an administrative agency’s statutory interpretation. The Opinion correctly construed Yamaha as recognizing that in ourtripartite system of government,“it is the judiciary — notthelegislative or executive branches — that is charged with thefinal responsibility to determine questions of law” and the weight to be accorded to an administrative agency’s interpretation is “fundamentallysituational.” (Opn. at p. 26.) “The standard for judicial review of agencyinterpretation of law is the independentjudgmentofthe court, giving deference to the 19 determination of the agency appropriate to the circumstancesofthe agency action.” (Opn.at p. 24 (quoting Yamaha, 19 Cal. 4th at 8 (italics in original)).) An agency’s expertise or comparativeinterpretative advantage over the reviewing court is a major factor to what level of deference and agency’s interpretation should be provided. Ina situation such as Banning, a pure laborrelations issue within PERB’s expertise, a deferential standard ofreview is appropriate. Here, however, PERB’s Decision nullified the effects of the CPR basedonits erroneous conclusion that the CPRI wasnot a citizen sponsored initiative, but rather a governing body sponsoredinitiative subject to the MMBA.Asthe Court ofAppéal Opinion noted, such a determination rested nearly entirely on PERB’s application ofthe interplay amongthe City’s charter (and Sanders’ powers andresponsibilities thereunder), commonlaw agencyprinciples, and California’s constitutional and Statutory provisions governing charter amendments. (Opn.at p. 43.) PERB’s Decision “did not turn uponthe resolution of materialfacts (to which the deferential ‘substantial evidence’ standard would apply) or upon PERB’s application of legal principles of which PERB’sspecial expertise with the legal and regulatory milieu surroundingthe disputed legal principles would warrant deference.’ Jd. at 43-44. PERB’s and the 3 The Opinion recognized that PERB ordered, among other remedies, “that the City in effect refuse to comply with the CPRI.” (Opn.at p. 5.) * The Opinioncorrectly concluded that when the material facts are undisputed, as they were in the present case, the question of the existence of a principal agent relationship is a matter of law to be decided bythe courts. (Opn.at p. 44 n.34 (citing Kaplan v. Caldwell Banker Residential Affiliates, Inc., 59 Cal. App. 4th 741, 745 (1997); see also Troost v. Estate ofDeBoer, 155 Cal. App. 3d 289, 299 (1984) (noting thatif the essential facts are not in conflict the question ofthe existence of an agency 20 Unions’ briefs are absent of any case law or authority evidencing it holds any expertise with regardsto constitutional law governing voterinitiatives or common law agencyto which the courts should defer. Therefore, following Yamaha’s circumstantial approach, the Court of Appealcorrectly applied a de novo standard ofreview as PERB lacks the requisite expertise and holds no comparative advantage over the Court of Appeal with regards to interpreting “the constitutional or statutory scheme governing initiatives” or “commonlawprinciples of agency.” (Opn.at p. 44.) In fact, giving PERB deference regarding its determination of whether a citizens’ initiative is “pure”or “impure” would conflict with this Court’s determination thatit is the solemn duty of the courts (not PERB)“to jealously guard the preciousinitiative power, andto resolve any reasonable doubts in favor of its existence.” Legislature v. Eu, 54 Cal. 3d 492, 501 (1991). The Opinion does notcreate any conflict with Banning because the cases are completely distinguishable. Likewise, Cumero v. PERB, 49 Cal. 3d 575 (1989), is distinguishable as it did not involve the convergence of numerous areas of law outside of PERB’s expertise, nor did it involve an underlying decision that eviscerated the constitutional rights of an elected official, initiative proponents, petition signers, and the City’s electorate. relationship is a question of law).) Accordingly, any claim that the Opinion created a conflict with Inglewood Teachers Ass’n v. PERB, 227 Cal. App. 3d 767 (1991) is incorrect, as Inglewood did notinvolvea situation where the material facts were undisputed. Nor did Inglewood involvea situation undeniably outside ofPERB’s expertise such as determining whatis, oris not, a “pure”citizens’ initiative. Also, as the Opinion pointed out, “courts in other contexts have declined to accord any deference when the PERB decision does not adequately evaluate and apply commonlawprinciples.” (Opn.at p. 26 n.21 (citing Los Angeles Unified SchoolDist. v. PERB,191 Cal. App. 3d 551, 556-57 (1983)).) 21 Furthermore, PERB’s Decision acknowledged “the City raised some significant and difficult questions about the applicability of the MMBA’s meet-and-confer requirementto a pure citizens’ initiative,” however,it concluded “those issues are not implicated by the facts ofthis case,” and therefore did not address them andinvitedtheparties to raise them with the court. (XI AR 186:003006.) Thus, PERB invited the Court of Appealto review its decision de novo. B. The Court of Appeal Opinion Did Ultimately Determine PERB’s Decision Was Legally Erroneous Regardless of the standard of review applied, the Opinion ultimately correctly concludedthat based on the undisputed facts the legal conclusions underlying PERB’s Decision were erroneous. When the material facts are undisputed and a Court is presented with a pure question of law, whether a legal conclusionis classified as “erroneous”or “clearly erroneous”is a distinction without a difference. There are no varying degrees of legally erroneous, a legal conclusion based on an undisputed set offacts is either - right or wrong. This Court hasstated,it is the duty of the courts when a question of law is properly presented, to state the true meaning ofa statute, even though such requires the overthrow ofan earlier erroneous administrative construction. Cumero, 49 Cal. 3d at 587. Here, the Opinion did just that, as it concluded “PERB’s fundamental premise — that under agency principles Sanders’ support for the CPRI convertedit from a citizen-sponsored initiative on which no meet-and-confer obligations were imposed into a City Council-sponsoredballot proposal to which section 3504.5’s meet- and-confer obligations became applicable — is legally erroneous.” (Opn.at pp. 65-66.) 22 C. PERB andthe Unions’ Interpretation of Government CodeSection 3505 to Attempt to Turn the CPRI into a City SponsoredInitiative Ignores Fundamental Principles Governing the Charter AmendmentProcess and Limitations Established by the City’s Charter PERB andthe Unionsattemptto holdthe City liable for an MMBA violation under a statutory agency theory ignores the fact that Sanders had absolutely no authority without City Council direction or authorization, to sponsor or pursue a Charter amendmenton behalf of the City. The City’s Mayorderives his authority solely from the City’s Charter. See, e.g., Lockyer v, City and County ofSan Francisco, 33 Cal. 4th 1055, 1086 (2004) (“When a public official’s authority to act in a particular area derives wholly fromstatute, the scope of that authority is measured by the terms of the governingstatute.”’) Pursuant to the San Diego City Charter, “[a]ll legislative powers of the City shall be vested, subject to the terms of this Charter andofthe Constitution of the State of California, in the Council, except such legislative powers as are reservedto the people by the Charter and the Constitution of the State.” San Diego Charter § 11. Accordingly, the City Council is the City’s “governing body.”/d.; see also San Diego Charter § 270. For the City Council to act, it may do so only as a body. San Diego Charter § 15 (“Except as otherwise providedherein the affirmative vote of a majority of the memberselected to the Council shall be necessary to adopt any ordinance, resolution, order or vote”); see also San Diego Charter § 270(c) (“Noresolution, ordinance, or other action of the Council shall be passed or becomeeffective without receiving the affirmative vote 23 of five membersofthe Council, unless a greater numberis otherwise required by the Charter or other superseding law.”) Furthermore, the City Council cannot delegateits legislative poweror responsibility to the City’s Mayor, individual Council members, or anyone else. San Diego Charter § 11.1. PERB’s Decision concluded that “when meeting and conferring with the employee representatives, the Mayor makesthe initial determination of policy with regard to whatposition the City will take... .” (XI AR 186:002983.) It further erroneously held that “Sanders wasa statutory agent of the City with actual authority to speak for and bind the City with initial proposals... .” Ud. at 186:003005.) Both conclusionsblatantly ignore the fact that the Mayor cannot unilaterally establish or choose to pursuelegislative policy on behalf of the City — only the City Council can and pursuant to the City Charter such powers are nondelegable. Accordingly, contrary to PERB’s findings, Sanders did not, and could not, havehad the statutory authority to bind the City with initial legislative proposals, let alone the mere announcementof his desire to pursue pension reform via voter initiative as a private citizen. However,that is the finding this Court is being askedto reinstate in an effort to nullify the CPRI, a duly certified citizens’ initiative. Under Government Codesection 3505,° the “governing body”or “other representatives as may be properly designated by law or such Government Codesection 3505states: The governing body ofa public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body, shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee 24 governing body,” must meet-and-confer on subject matters ofbargaining “prior to arriving at a determination of policy or course of action.” The “determination of policy or course of action” with regardsto legislative act referred to in Government Code section 3505 must be made by the “governing body” — the City Council. Otherwise it would constitute an improper delegationoflegislative authority. See Kugler v. Yocum, 69 Cal. 2d 731, 735 (1968); Bolger v. City ofSan Diego, 239 Cal. App. 2d 888, 893 (1966) (“An attempted delegation of powerto an officer of a municipality where no standardsare established by whichthe officer shall be governed in his actions, is in effect an attempted delegation of authority to legislate and therefore void”); Ex parte Stone, 48 Cal. App. 463 (1920) (noting when all legislative power is vested in city council by charter any intention to abridge that power must be made manifest by express provision and cannot be presumedor implied). Whileit is true the Mayor may conduct negotiations with the Unions, even his opening offer at the negotiation table must be approved by organizations, as defined in subdivision (b) of Section 3501, and shall consider fully such presentations as are made by the employee organization on behalf of its membersprior to arriving at a determination ofpolicy or course ofaction. “Meet and confer in good faith” meansthat a public agency, or such representatives as it may designate, and representatives of recognized employee organizations, shall have the mutual obligation personally to meet and confer promptly upon request by either party and continue for a reasonable period of time in order to exchange freely information, opinions, and proposals, and to endeavor to reach agreement on matters within the scope of representation prior to the adoption by the public agencyofits final budget for the ensuing year. The process should include adequate time for the resolution of impasses wherespecific procedures for such resolution are contained in local rule, regulation, or ordinance, or when such proceduresare utilized by mutual consent. 25 the City Council. (XII AR 189:003226:11-3227:6.) Here, that never occurred. Sanders has no statutory authority to makea legislative policy decision or determine a course of action concerninglegislative policy without City Council direction and approval. The cases pointed to by the Unions and PERB are distinguishable and therefore irrelevant, as they involve actions were there was no necessary predicate involvementby the government body,as is required in the present situation. (Unions’ Briefat pp. 44-45 n.16 & 17; PERB Brief at pp. 51-52 n.13.) Accordingly, Sanders’ support of the CPRI cannot legally have turned it into a “City-sponsored”initiative, let alone a “government body” sponsored initiative subject to MMBA meet-and-confer requirements.° See, e.g., First Street Plaza Partners v. City ofLos Angeles, 65 Cal. App. 4th 650 (1998) (holding the provisions of a city’s charter cannotbe satisfied by implication or procedures different than those specified in the charter). D. The Court of Appeal Correctly Determined PERB’s Attempt to Use a Common Law Agency Theory to Find Sanders’ Actions Transformed the CPRI Into a Government Sponsored Initiative Was Erroneous It is a municipal law maxim,that any act that violates the City’s Charter is void. Domar Electric, Inc. v. City ofLos Angeles, 9 Cal. 4th 161, 6 The City does not dispute that a recognized employee organization may itself trigger an employer’s duty to bargain by a demand to meet-and-confer over a negotiable subject absent a government body proposal to take formal action. However, that never occurredin this case. As noted infra in Section D.4 the Unionsare disingenuousin their claim they requested to meet-and-confer over a competing or alternative ballot measure concerning the subject matter covered by the CPRI. Instead, claiming the CPRI was a “sham”initiative and not true citizens’ initiative, their demands were to meet-and-confer over the CPRI. 26 171 (1994). And when a charter provision has not been complied with, the City cannotbe held liable or deny the validity of such act. See, e.g., First Street Plaza Partners, 65 Cal. App. 4th at 667; Dynamic Ind. Co. v. City of Long Beach, 159 Cal. App. 2d 294, 299 (1958) (holding when a charter provision has not been complied with, the city may not be held responsible in quasi contract, or estopped from denying validity of such contract); see also Calaveras City v. Calaveras Cty. Water Distr., 184 Cal. App. 2d 276, 280 (1960) (“No government, whetherstate or local, is bound to any extent by an officer acting in excess of his authority. ...”) As discussed above, PERB’s Decision completely disregarded the City’s nondelegation of legislative authority doctrine. The City is unaware of any case law applying common law agency principles related to the exercise of a City’s legislative powers,theyare simply not applicableto the City in such context. However, even using agencyprinciples a lone individual may not be an agentofthe City’s governing body for purposesofcreating legislation. Similar to the City’s nondelegation doctrine, Civil Code section 2304 makesit clear that an agent may not be authorizedto do acts which the principal is boundto gives his personalattention. Accordingly,it is clear under commonlaw agency principles that Sanders cannotact as an agent of the City when unilaterally creating or pursuinglegislative policy because the City Council is bound by — the Charter to give its personal attention to suchtasks. 1. Sanders Did Not Have Actual Authority to Unilaterally Speak on Behalf of and Bind the City The facts and applicable law do not support PERB’s conclusion that Sanders wasacting as an agent of the City under an actual authority analysis. As discussed, pursuant to the City Charter, only the City Council 27 can establish City legislation and such poweris nondelegable. San Diego Charter §§ 11, 11.1. “Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.” Cal. Civ. Code § 2316. “Actual authority” stems from conductofthe principal that causes the purported agent to reasonably believe that the principal has authorized or consented to the agent’s act. Mannion v. Campbell Soup Co., 243 Cal. App. 2d 317, 320 (1966). The Opinion correctly found that there was no evidence the City Council actually authorized Sandersto act on its behalf to support the CPRI. (Opn. at p. 54.) Additionally, there was no evidence that Sanders believed he was acting or had actual authority to act on behalf of the City Council. Jd. 2. Sanders Did Not Have Apparent (Ostensible) Authority to Speak on Behalf of and to Bind the City In an apparent agency analysis, the focus is on whetherthe principal, either intentionally or by want of ordinary care, caused or allowed a third party to believe the agent possessed authority to act on behalf of the principal. Cal. Civ. Code § 2317. Thus, apparent agency must be established through the conduct of the principal and cannotbe created merely by the purported agent’s conduct or representations. See Hill v. Citizens Nat’l Trust & Savings Bank ofLos Angeles, 9 Cal. 2d 172, 176 (1937); Young v. Horizon West, Inc., 220 Cal. App. 4th 1122, 1132 (2013). The Opinion correctly found that PERB’s apparent agencyfinding waserroneous for multiple reasons. Asit noted, neither the PERB Decision 28 nor PERB’sor the Unions’ appellate briefing set forth any evidencethat the City Council affirmatively said or did anything which could have caused reasonable employees to believe Sanders was authorized to act on behalf of the City Council when promoting the CPRI. Rather, they relied completely on hearsay statements of newsreporters and statements by the alleged agent himself. Additionally, the third party’s belief that an agent is acting on behalf of the principal must be reasonable and not based on negligence. Hill, 9 Cal. 2d at 176. It is unreasonable, and in fact disingenuous, for the Unions to claim that they do not pay attention to the State of the City address, and assert that they believed Sanders wasacting in his official City capacity with City Council approval when he expressly stated that he was acting asa private citizen. Furthermore, it is well established law that an agency relationship is not to be presumed, and “one dealing with a municipal corporation is chargeable with knowledge ofthe limitations of powerof its agents and officers.” Contra Costa Co. v. Daly City, 48 Cal. App. 622, 625 (1920). Accordingly, the Unions are charged with the knowledge of Sanders’ lack of authority to establish legislative policy or even present a proposal without first getting the approval of City Council.’ San Diego Charter § 11.1. 7 As the Opinion noted, “apparent” authority is a form of estoppel, and PERB’s Decision completely failed to explain how the third element — change ofposition from reliance upon representations by principal which resulted in injury — of estoppel wassatisfied. (Opn.at p. 56 n.44.) Additionally, “estoppel” will not be applied against the governmentifto do so would effectively nullify a “strong rule of public policy, adopted for the benefits of the public.” Cotta v. City & County ofSan Francisco, 157 Cal. 29 3. The City Council Did Not Create an Agency Relationship by Ratification The PERB Decision claimed that, under a commonlawratification theory, the City Council ratified Sanders’ actions by acquiescing to his | promotion ofthe initiative, by placing it on the ballot, and denying the Unions the opportunity to meet-and-confer, while accepting the financial benefits of the CPRI. (XI AR 186:003003.) PERB contends the knowledge componentrequired for ratification was met because the City Council was in attendance at Sanders’ State of the City speech. The speech during which Sanders unequivocally stated he was acting as private citizen. (XVIII AR 195:004823.) PERB,in its appellate briefing admitted “[t]here is no dispute that [Sanders] had constitutional and statutory rights as a private citizen to take positions on matters of City employee compensation, including supporting [the CPRI].” (PERB Appellate Reply Brief, p. 68; see also Opn. at p. 60 n.50.) The evidenceestablishes Sanders’ went out of his way to repeatedly state he wasacting as a private citizen. (XIII AR 190:003361:1-3362:9, 3362:18-20; XVIII AR 195:00593; XXII AR 200:005815, 5829, and 5834.) PERB’s contention the City’s failure to disavow something Sanders admittedly had a constitutional and statutory right to do creates an agency relationship that effectively eviscerates such right is misguided. App. 4th 1550, 1567 (2007). Here, two strong rules ofpublic policy, the City’s prohibition against delegation of legislative authority and the exercise of the citizens’ initiative power to enact the CPRI, would be nullified if apparent authority were applied. 30 PERB’s claim that the City Council’s placing the CPRI on the ballot, and the Council’s acceptance ofthe financial benefits accruing from the CPRI’s passage by the voters is also unavailing. Once the CPRI qualified as a duly certified citizens’ initiative, the City Council was required to place it on the ballot without change. Save Stanislaus Area Farm Economy v. Bd. ofSupervisors, 13 Cal. App. 4th 141, 149 (1993) (“A local governmentis not empoweredto refuse to place a duly certified initiative on the ballot.”) Pursuant to Election Code section 9255(b)(2), the City had a ministerial duty to place any qualified citizens’ tnitiative on the ballot as worded. The Citizen Proponents, whom PERB found were not agents of the City, had the exclusive control over the CPRI’s wording. See Cal. Elec. Code § 9032; Perry v. Brown, 52 Cal: 4th 1116, 1142 (2011). The City Council could not choose to ignore the law, and had no option but to accept any potential benefits from its enactment. The Opinioncorrectly concluded,ratification can have no application whenthe principalis unable to decline the benefits of an agent’s unauthorized actions. This Court has madeit clear that non-discretionary or ministerial actions cannot amount to ratification stating “i]t is essential . . . that the act of adoption betruly voluntary in character.” Rakestraw v. Rodrigues, 8 Cal. 3d 67, 73 (1972) (Emphasis added). 4, The Unions Never Requested to Meet-and-Confer Over a Competing Ballot Measure, Rather, They Demanded to Meet-and-Confer Over the CPRI Because They Insisted It Was a “Sham”Citizens’ Initiative and Really the City’s Initiative The Unions mischaracterize SDMEA’s July 15, 2011 letter and subsequent meet-and-confer demands. There was never a request to meet- 31 and-confer over a competing ballot measure regarding the “pension reform subject matter covered by [Sanders’] initiative effort,” as they contend in their Opening Brief. (Unions’ Brief at p. 60.) As the Court of Appeal noted, the Unionsinsisted and asserted that the “City had the obligation to meet-and-confer over the CPRI.” (Opn.at p. 14, emphasis added;see,e.g., XXII AR 200:005908 (“[t]he purpose ofthis letter is to request that the City meet and confer with Local 145 on the Comprehensive Pension Reform Initiative, as required under the [MMBA\];Jd. at 005913 (“the City is obligated to meet and confer over the proposed charter amendment[the CPRI], ...”).) SDMEA’s UPCfiled with PERB never claimsit requested to meet-and-confer over a competing ballot measure concerning pension reform,rather it admits its multiple requests sought to meet-and-confer over the CPRI. (I AR 1:000011 (stating the City rejected “each of MEA’s several demands for meet and confer over the CPR Ballot Initiative, . . .”’) This is because the Unions’ were pushing their “sham’’/“strawman’”theory (debunked by the PERB Decision), that the Citizen Proponents were simply “special agents” acting for the City. PERB’s Administrative Complaints also state the City’s alleged MMBAviolation wasits denial of the Unions’ requests to meet-and-confer over the CPRIbefore placing it on the ballot. (III AR 13:000572-3; III AR 27:000836; V AR 48:001181; and V AR 62:001408.) There was never a request for the City to meet-and-confer over a competing ballot measure. Neither PERB nor the Unionscite to any authority requiring the City to engage in the meet-and-confer process over 32 the subject matter covering a citizens’ initiative when no such request was made. That is because there is no such authority, and no suchobligation.® The contention the City should or could have delayed placing the CPRI onthe ballot until a competing measure could have been madeis also mistaken. (See Unions’ Brief at pp. 64-65 (pointing to the Opinionat footnote 25 stating the governing body “arguably” has some flexibility as to at which election an initiative is presented to the voters, citing Jeffrey v. Superior Court (Jeffrey), 102 Cal. App. 4th 1, 4-10 (2002).) Jeffrey, addressing the argumenta hostile city council could effectively de facto veto aninitiative by manipulating when an initiative appears on the ballot, noted that a legislative body must, if possible, respect the effective dates initiative supporters establish within their initiative. Jeffrey, 102 Cal. App. Ath at 9-10. The CPRI expressly called for limitations on base compensation for calculation of pension benefits to take effect beginning July 1, 2012. (AR XIX 196:005015 (CPRI/Prop. B, proposed San Diego Charter § 70.2).) Any delay in placing the CPRI onthe ballot would have been inconsistent with effective dates set forth in the citizens’ initiative. E. The Citizens’ Initiative Power Is Broad, andIt Is the Duty of the Courts to Jealously Guard and Protect Such Power The California Constitution provides for only two distinct methods to propose amendments to the City’s Charter — (1) a proposal madevia > iT citizens’ initiative, or (2) a proposal by vote ofthe City’s “governing 8 For the sake of arguendo, even if it the City did fail to comply with the MMBAbynot engaging in a meet-and-confer process over a competing or alternative pension reform initiative, it would notjustify PERB’s remedy whicheffectively nullifies the CPRI. Rather, a more appropriate remedy would be to order the City to meet-and-confer with the Unions over a potential alternative measure. 33 body.” Cal. Const., art. XI, § 3(b). The Constitution speaks ofthe citizens’ initiative, not as a right granted to the people, but as a power reserved by them. Associated Home Builders etc., Inc. v. City ofLivermore (Associated Home Builders), 18 Cal. 3d 582, 591 (1976). When faced with a challenge to the citizens’ initiative power, recognizing it to be one of the democratic processes most preciousrights, it has been declared to be the duty ofthe courts to ‘Sealously guard”and liberally construe the rightso that it is not “improperly annulled.” /d.; see also Raven v. Deukmejian, 52 Cal. 3d 336, 341 (1990). When weighing the tradeoffs associated with the initiative power, this Court recently reaffirmed the obligation that doubts must be resolved in favor of the exercise of the right wheneverpossible, and any provisions that would limit or burden the exercise of such power must be narrowly construed. California Cannabis Coalition v. City of Upland (Upland), 3 Cal. 5th 924, 938 (2018). The enactmentof the initiative power came about dueto “dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.” Perry v. Brown, 52 Cal. 4th 1116, 1140 (2011). Its primary purposeis to empowerthe people with the ability to propose and adoptstatutory provisions “that their elected public officials had refused or declined to adopt.” Jd. To that end, citizens’ initiatives have been comparedto a ‘legislative battering ram’ because they ‘may be usedto tear through the exasperating tangle of the traditional legislative process and strike directly 999 toward the desired end.’” Tuolumne Jobs & Small Business Alliancev. Superior Court (Tuolumne Jobs), 59 Cal. 4th 1029, 1035 (2014) (italics in original). 34 1. Citizens May Bring an Initiative and Directly Legislate On Any Matter Over Which a Municipal Governing Body MayLegislate DeVita v. County ofNapa, 9 Cal. 4th 763, 775 (1955)states the rule that “the local electorate’s right to initiative and referendum is guaranteed by the Constitution . . . and is generally co-extensive with the legislative powerofthe local governing body.” In other words, anything on which the City Council can legislate, the citizens may directly legislate byinitiative. The CPRI adopts a new 401(k) style pension plan for new employees and makesother changes to the City’s retirement system — it does not attempt to modify benefits for existing employees or affect vested rights. Since the subject of the CPRI falls within the “municipal affairs” powerofthe City Council, it must also fall within the legislative powers reserved to the people throughinitiative. DeVita cautioned that “[t]he presumption in favor of the right of initiative is rebuttable upona definite indication that the Legislature, as part of the exercise of its power to preemptall local legislation in matters of statewide concern, has intendedto restrict that right.” Id. at 776 (emphasis added). Nonetheless, it reaffirmed “the constitutionally based presumption that the local electorate could legislate on any subject on which thelocal governing body couldalso legislate.” Id. at 777. DeVita then foundthat the Legislature intended that general plans could be amendedbyinitiative. 2. The Legislature Has Never Indicated the MMBAin Any WayLimits the Citizens’ Initiative Power In enacting the MMBA,the Legislature never gave a “definitive indication”that it was attempting to preemptor in any way limit the 35 citizens’ initiative power on subject matters of bargaining (e.g., wages, hours, working conditions, etc., including pensions). In fact, the MMBA itself is totally silent on initiatives or the rights of citizens. As this Court recently opinioned, to infer a limitation on the initiative power from such an absence would “essentially embrace a presumption against the initiative power, rather than in favor of it. Such a conclusion would be profoundly ay odds [with this Court’s] obligation to ‘jealously guard’ the voters’ exercise of their initiative power.” Upland, 3 Cal. Sth at 938-39 (citing Associated Home Builders, 18 Cal. 3d at 591). 3. No Case Has Declared That the MMBA Preempts or In Any WayLimits the Citizens’ Initiative Power No court decision states that the MMBA preempts, or in any way limits, the initiative powerofcitizens to legislate directly on subjects of bargaining. The two main cases the Unions contend support their argument,that the constitutional rights of initiative should yield to the MMBAdue to Sanders support of the CPRI (Unions’ Brief at p. 66), are distinguishable and inapplicable to the present situation. a. The Seal Beach Case?’ First, the Unions’ erroneous claim that the Seal Beach case somehow limited or restricted the government body’s constitutional rights must be dispelled. The Supreme Court in Seal Beach confronted the city’s claim that a conflict existed between the city council’s constitutional powerto propose charter amendments and the statutory procedural requirement of the MMBAto meet-and-confer before legislating over employment » People ex. rel. Seal Beach Police Officers Ass'n v. City ofSealBeach (Seal Beach), 36 Cal. 3d 591 (1984). 36 matters. The Supreme Court found: “No such conflict exists,” because “the governing body of the agency — here the city council — retains the ultimate powerto refuse an agreement and to makeits own decision. [Citation omitted.] This power preserves the council’s rights underarticle XI, section 3, subdivision (b) — it maystill propose a charter amendmentifthe meet-and-confer process does not persuadeit otherwise.” Seal Beach, 36 Cal. 3dat 601. Accordingly, reading Seal Beachcorrectly, one finds it does not hold, as the Unions claim (Unions’ Briefat p. 67), that the MMBA limits or restricts a charter city’s constitutional right to propose ballot measures on matters within the scope of representation. Rather, this Court ruled that the MMBAapplied to governing body action specifically because the MMBAdidnot limit or abridge a local agency’s constitutional rights, and therefore was deemed compatible with such rights. Seal Beach, 36 Cal. 3d at 601. However, an irreconcilable conflict exists between the citizens’ constitutional right to legislate by initiative and the procedural requirement of the MMBA. Thesource ofthe conflict is the central role which the governing body plays in the bargaining process. As the Supreme Court stated in Votersfor Responsible Retirement v. Bd. ofSupv. ofTrinity County (Trinity County), 8 Cal. 4th 765, 782 (1994): [T]he effectiveness of the collective bargaining process under the MMBArests in large part uponthe fact that the public body that approves the MOU undersection 3501.1 —1.e., the governing body — is the sameentity that, under section 3505, is mandated to conduct or supervise the negotiations from which the MOU emerges. 37 Thevery nature of the initiative process is to allow citizens to bypass and act independently of the governing body — in this case, the City Council. If the citizens or their representatives have to wait for a Council-supervised bargaining process to unfold and reach conclusion or impasse before presenting aninitiative to the ballot, they become hostage to a process conducted by the very governing body which they seek to bypass and from which they seek independence. Hence, the obvious conflict. This Court has recognized that “the major impetus behind [the 1911 amendments granting the rights of initiative and referendum] was to enable the people of this state, on the local level and statewide, to reclaim the legislative power from the influence of what is contemporary parlanceis called “‘special interests.” DeVita, 9 Cal. 4th at 795. The Citizen Proponents and business group backers who carried the CPRI forward meantto “reclaim the legislative power” over pensions from the City Council and the Unions, so a requirementthat its passage should have awaited completion of a bargaining process involving only the Council and the Unions runs counter to the very nature and purposeofthe citizens’ initiative. IfPERB’s Decision and Orders were to be reinstated andcitizens’ initiative are held to have to comply with the MMBAmeet-and-confer requirements it would effectively eviscerate the citizens’ constitutional initiative rights. Accordingly, Seal Beach does not in any way support the position that the citizens’ precious constitutional rights to initiative should in any wayyield to the MMBA meet-and-confer requirements. 38 b. The Trinity County Case!® In Trinity County, this Court addressed whether a referendum!! was proper to review the County’s approval of a Memorandum of Understanding (MOU)related to retirement, which had been adopted after a meet-and-confer process had already concluded. The Trinity County case does not in any way support a conclusion that citizens’ initiatives must yield in any way to the MMBA.First, the ruling rested entirely on a specific statute, Government Code section 25123(e), which stated that any ordinance adopting an MOU became effective immediately. Because of the immediate effectiveness of the MOU under Section 25123(e), a referendum simply could not operate to affect the MOU.In approving the application of Section 25123(e), this Court reasoned, “lilf the bargaining process and ultimate ratification ofthe fruits of this dispute resolution procedure by the governing agencyis to have its purposefulfilled, then the decision of the governing body to approve the MOUmustbe binding and not subject to the uncertainty ofreferendum.” Trinity County, 8 Cal. 4th at 782. The MOU wasthe culmination of a meet-and-confer process. Allowing votersto, in effect, rescind the MOU '0 Votersfor Responsible Retirement v. Bd. ofSupv. ofTrinity County (Trinity County), 8 Cal. 4th 765, 782 (1994). 'l Although the powers ofinitiative and referendum both arise from reforms of the progressive era adopted over 100 years ago, the two powersare distinctly different. “Both reserved powers allow local as well as statewide voters to take legislative action without the aid or interference oftheir elected officials. [Citations omitted.) However, as the name suggests, the initiative allows voters to propose newlegislation. (Cal. Const., art. II, § 8.) In contrast, the referendum permits voters to reject legislation that has already been adopted.” Jahr v. Casebeer, 70 Cal. App. 4th 1250, 1259 (1999). 39 by referendum would clearly interfere with an MMBA-sanctioned bargaining process, which had already occurred andproceededto completion. That rationale has no application to initiatives or to this case, where the issue is whether the meet-and-confer procedures ofthe MMBA must beginat all before voters can legislate on the substance of public employee pensions for future new hires. Here, the CPRI affected pensions which are “municipalaffairs,” matters of local rather than statewide concern. The instant case, unlike Trinity County, does not affect a completed collective bargaining process — a matter of statewide concern. This Court also made a point to expressly note that its decision did not apply to cities, becausethe statute it enforced applied to county ordinances only. Trinity County, 8 Cal. 4th at 784 n.6. Therefore, Trinity County provides no basis whatsoeverfor the argument that the MMBA contains some implicit restriction of any kind on the electorate to govern directly on matters within the scope of representation, regardless of whether an initiative received support from public officials. 4. The Meet-and-Confer Requirement of the MMBA is Procedural, and, Therefore, Inapplicable to Citizens’ Initiatives The Opinion followed well settled law and correctly concluded that the MMBA’sprocedural meet-and-confer obligation applicable to a government body proposedinitiative cannot be superimposed on citizen sponsored initiative addressing matters within the MMBA“scope of representation.” See Friends ofSierra Madre v. City ofSierra Madre, 25 40 Cal. 4th 165, 189 (2001) (explaining that imposing certain procedural prerequisites applicable to legislative bodies, such as compliance with the California Environmental Quality Act, could impose impermissible burdens on the electors constitutional powerto legislate by initiative); Native American Sacred Site and Envt’l Protection Ass’n v. City ofSan Juan Capistrano, 120 Cal. App. 4th 961, 968 (2004) (“[I]t is plain that voter- sponsoredinitiatives and not subject to the procedural requirementsthat might be imposed onstatutes or ordinances proposed and adopted by a legislative body, regardless of the substantive law that might be involved.”). F. The First Amendment Protected the Mayor’s Actions The First Amendmentto the United States Constitution states, in pertinentpart, that “Congress shall make no law . . . abridging the freedom of speech... .” U.S. Const., amend. I. The sameprohibition is extended to the States by the Fourteenth Amendment. Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 133 (1999). PERB’s Decision focused on the actions of Sanders in support of the CPRI in an attempt to renderthe duly certified citizens’ initiative into a “City- sponsored” Charter amendment, and, therefore, claim the CPRI was somehownot“pure” and subject to the MMBA meet-and-confer process. However, PERB’s Decision ignored the fact that, apart from his official duties, Sanders, as well as any public official, may act privately and have fundamental First Amendmentrights to petition their governmentfor redress and to expresstheir views on “matters of public concern.” See Pickering v. Bd. ofEd. ofTp. High School Dist. 205, 391 U.S. 563, 574 (1968); Connick v. Myers, 61 U.S. 138, 145-46 (1983). Whetheror not Sanders was initially discussing his own conceptofpension reform, or was 4] later supporting the CPRI,his activities fell squarely within this category of “matters of public concern.” Whenthey assumedtheir duties as elected officials, neither the Mayornor City Councilmembersrelinquish their First Amendmentrights to address the merits of pending ballot measures or to even propose and draft them. Public officials do not leave their First Amendmentrights “at the door” whentheyenteroffice. The United States Supreme Court hasstated: The First Amendment“was fashioned to assure unfettered interchange of ideas for the bringing aboutofpolitical and social changes desired by the people.” “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” Accordingly, the Court has frequently reaffirmed that speech on public issues occupies “the highest rung of the hierarchy of First Amendmentvalues,”and is entitled to special protection. Connick, 461 U.S. 138 at 145 (citations omitted). Whetheror not to amend the City Charter to reform the City’s pension systems is unquestionably a “matter ofpublic concern.” The Mayorandindividual Councilmembers havea right to weigh in onthis issue, just as any other citizen. Indeed, they have a duty to inform the public of their views. Rather than limiting elected governmentofficials’ speech, Supreme Court decisions makeit clear that protection of their First 42 Amendment speechis robust and that they do not forfeit such protections as a upon assumingoffice.'* In Wood v. Georgia, 370 U.S. 375, 395 (1962), the Court held that “(t]he role that elected officials play in our society makesit all the more imperative that they be allowedfreely to express themselves on matters of current public importance.” And, there can be no question that the City’s 2 Citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), PERB and the Unionsargued in the Court of Appeal that even if viewed through the prism of First Amendmentand statutory speech, Sanders’ activities were not protected because “[t]he First Amendmentdoes notprotect activities undertaken in the course ofa government employee’s official duties.” Sanders repeatedly made it clear, however, that he was taking his actionsas a private citizen, not in the course of any official duties.XIX AR 196:004836; XIII AR 190:003341:11-24, 3361:21-3362:20.) Furthermore, Garcetti is inapplicable,as it applies to government employees, not elected public officials. The Garcetti Court justified the limits it placed onpublic employees’ speech by noting that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions; withoutit, there would belittle chance forthe efficient provision of public service.” Garcetti, 547 U.S. at 418. The samerationale does not apply to elected public officials. When dealing with elected public officials the “significant degree of control” neededis held by the electorate, not the government employer, as the elected public official is responsible to the electorate who voted him orherinto office. Additionally, the Court ofAppeal has noted that Garcetti does not deal with a governmentofficial’s public comments on official matters, but rather dealt with the narrow “question of the extent to which a public employer may discipline a public employee for making statements in the course of the employee’s official duties.” Morrow v. Los Angeles Unified Sch. Dist., 149 Cal. App. 4th 1424, 1437 n.6 (2007). 43 pension plan, funded by the taxpayers, was and is a matter of public importance." The Supreme Court in Bond v. Floyd, 385 U.S. 116, 135-36 (1966), dismissed any notion that elected public officials can have diminished First Amendment protection, noting that in a representative governmentthe First Amendment requires elected public officials to “be given the widest latitude to express their views on issues of policy,” and finding they have an “obligation to take positions on controversial political questions so their constituents can be fully informed by them, ....” In this case, Sanders was expressing his view to the constituents on how the City’s runaway pension costs could be stopped. !* 3° The Court of Appeal Opinion noted that Sanders’ advocacyfor the CPRI was not wrongful, and was in fact protected under the United States Constitution. (Opn.at p. 60-61 n.50 (citing Wood v. Georgia, 370 U.S. 375, 394 (1962) and Bondv. Floyd, 385 U.S. 116, 136-37 (1966)).) 4 The Unions, at footnote 20 of their Opening Brief, argue that “[t]here is no First Amendmentrightto place an initiative on the ballot because the act ofproposing aninitiative is the first step in an act of law-making... .” Even assuming thatto betrue,it is irrelevant. Sanders did not take any of the official steps necessary to “place an initiative on the ballot.” He did not sign the notice of intent, request the ballot summary,orfile the final petition. See Cal. Elec. Code §§ 9202(a), 9203, 9265. Rather, the Citizen Proponents, whom PERB concluded were not agents of Sanders or the City Council took those steps. (XI AR 186:003088-89.) Itis irrelevant whether those specific actions of the Citizen Proponents qualify as speech. Whatis relevant is that Sanders was engagedin protected speech whenhesaid he wanted to pursue a citizens’ initiative and when he openly supported the CPRI. 44 Given the importanceofpolitical speech in the history ofthis country, courts afford political speech — such as the actions allegedin this case — the highest level of protection. Meyer v. Grant, 486 US. 414, 422 (1988) (noting advocating for an initiative petition is “core political speech” and describing the First Amendmentprotection of “core political speech” to be “at its zenith’). Thus, the First Amendment imposestight constraints upon governmentefforts to restrict core political speech. Boos v. Barry, 485 U.S. 312, 321 (1988). Accordingly, the Mayor, like any other public official, was andis “free to join a citizens’ group supporting the legislative goals expressed in [a] purposedinitiative; as individuals they [have] the right to advocate qualification and passageofthe initiative.” League of Women Voters of California v. Countywide Criminal Justice Coordination Committee (League ofWomen Voters), 203 Cal. App. 3d 529, 555-56 (1980). The City acknowledgesthatits officials are not entirely immunized by the First Amendmentfrom potential violations of the MMBA. However, PERB casesthat limit free expression in the laborrelations context, such as City ofSan Diego (Office ofthe City Attorney), PERB Decision No. 2103-M (2010), Rio Hondo Community College District, PERB Decision No. 128 (1980), and State ofCalifornia (Department of Transportation), PERB Decision No. 1176-S (1996),all relate to expression directed at employees which constitute threats or otherwise impinge on their representational rights, such as discouraging them from organizing, or, in the City ofSan Diego decision, advocating to the employees a course of action in circumventionoftheir right to exclusive representation. 45 Sanders’ alleged actions are nothing like the direct communications to employees involved in such cases. There is no evidence that Sanders’ communications were other than to the public at large, and thus, clearly within the protected zone of commenting on public issues. No court or PERB decision renders such alleged activities unprotected by the First Amendment, and placing the burden of a meet-and-confer requirement on his Constitutional rights, when no law has ever done so before, impinges on those rights. PERB’s Decision and Order nullifying the effects of the CPRI is premised solely on the Constitutionally protected activity of Sanders, as well as other City elected officials and staff. Because PERB’s Decision necessarily invades the protection of an individual’s fundamental First Amendmentrights to reach the conclusion that a duly certified initiative that received the signatures of 115,991 individuals is somehow “City- sponsored,” and, therefore, an “impure”citizens’ initiative, the Decision is in error and must not bereinstated. 1. The City’s Mayor (or Councilmembers) May Draft an Initiative Ballot Measure and Seek Private Citizens to Carry It Forward Contrary to the Unions’false charges, the evidence showed Sanders did not draft the CPRI, nor hire the attorneys who did so. (XV AR 192:003994:13-3995:8.) Acting as a private citizen, he did propose an alternative initiative, but did not get private citizens to carry it forward. Nonetheless, any of these activities, even when done as a publicofficial, would beperfectly legal. The Court ofAppeal in League of Women Voters, 203 Cal. App. 3d 529, recognized the right ofpublic officials to draft and 46 propose a citizens’ initiative, and find private supporters, and evenheld the use of public funds to do so did not violate any law: _.if... the Legislature has proven disinterested, there appears to be no logical reason not to imply from the undisputable powerto draft proposedlegislation the powerto draft a proposedinitiative measure in the hope a sympathetic private supporter will forward the cause and the public will prove morereceptive. Id. at 548. Clearly, prior to and throughthe drafting stage of the proposed initiative, the action is not taken to attemptto influence voterseitherto qualify or to pass an initiative measure; there is as yet nothing to proceed to either of those stages. The audienceat whichtheseactivities are directed is not the electorate per se, but only potentially interested private citizens ... It follows those activities cannot reasonably be construed as partisan campaigning. Id. at 550 (italics added). The PERB Decisionstates, ““The City’s claim that the Mayorlacks authority to make a policy decision in terms of a ballot measure (only the City Council has that right) and any attempt to do so would amountto an unlawful delegation of legislative power, is misdirected. The policy decision relevant to the MMBAis one to change negotiable subjects, not whether to seek placementofa policy to that effect on the ballot.” (XI AR 186:003079.) According to PERB’s misguided view, the mere announcementat the State of the City speech that the Mayor was going to seek to place a pension reform initiative on the ballot as a privatecitizen, 47 amounted to a “determination of policy” that immediately triggered a meet and confer requirement. (XI AR 186:002985-86.) PERB’s Decisionalsostates, “In terms of his statutory duties, the Mayorhas gone outside the chain of command. The Mayorcannothaveit both ways; he cannot be lacking authority to make decisions on labor relations matters, yet also have the ability to take actions that have the effect of changing terms and conditions of employment.” (XI AR 186:003080.) The evidence, however, established that Sanders did not have the authority to make decisions on labor relations matters except uponfirst having approvalofthe City Council. (XII AR 189:003226:1 1-3027:6 (detailing that the Mayor must get Council approval before even making an opening proposal at meet-and-confer; XIII AR 190:003477:20-3478:21.) PERB contradictsitself in its decision as it acknowledges this: “[T]he City’s practice has been that the Mayorbriefs the City Council on his proposals andstrategy and obtains its agreement to proceed.” (XI AR 186:002983 & 3080 (noting “[t]he unions do not dispute that currently the Mayormust obtain prior approvalofall initial bargaining proposals including ballot proposals.”) Further, as indicated by the authorities cited above (as well as those discussed supra in Section E [the California Constitution] and infra in Section G [Gov’t Code §§ 3203, 3209]), Sanders had the right as a private citizen to take actions alone or to support others whose proposals may have an effect on negotiable subjects. PERB disparages these authorities and asserts that the City argues that they amountto a “privilege to violate the MMBA.” (XI AR 186:003095.) The City never arguedthat it has a 48 privilege to violate the MMBA,but rather contendsthese political activities have specific sanction in law, and do not violate the MMBA. Sanders had the legal right to bring aninitiative as a private citizen, and the right to announcethat, and did not have to meet-and-confer with the Unionsfirst. More importantly, Sanders waslegally permitted to support someoneelse’s private initiative, such as the CPRI, because that act is sanctioned expressly by the First Amendment, the California Constitution, and Government Code séctions 3203 and 3209, and therefore, cannot constitute a violation of the MMBA. Therefore, in one instance, the Mayorcan take a pension reform proposal to the City Council seeking authority to propose an opening bargaining position. In the other instance,if in his political judgment, which no evidence presented indicated was wrong, he perceived the Council to be unwilling to impose an alternative pension plan on new hires, he may, as any other private citizen, support a citizens’ initiative. The authorities cited above support such position, and no authority says otherwise. 2. The PERB Decision Imposes an Impermissible Prior Restraint on Sanders’ Speech PERB’s Decision holds Sanders lacks any First Amendmentright to engage in the citizens’ initiative process simply because of his position as the City’s Mayor. “By virtue ofthe Mayor’sstatus . .. the Mayor was not legally privileged to pursue implementationof [the CPRI] as a private citizen.” (XI AR 186:003096.) Such a blanketrestriction is without question an invalid prior restraint applied to the Mayor solely because of his elected position, a clear violation of the Mayor’s First Amendment rights. Prior restraints are “the most serious andthe least tolerable 49 infringement on First Amendmentrights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). G. State Law Protected Sanders’ Actions The Opinionalso correctly concluded that any advocacy expressed by Sanders in support of the CPRI was protected by Californiastatutory law. (Opn. at p. 60 n.50.) Government Code section 3209 expressly allows the City’s Mayor and other public officials and employeesto give substantial support to an initiative ballot measure which specifically “would affect the rate of pay, hours of work, retirement... or other working conditions. ...” In 1976, following court decisions which overturned, on constitutional grounds, local and State laws prohibiting political activities of governmentofficials and employees, the State Legislature added Chapter 9.5 to the Government Code, concerning “Public Activities of Public Employees.” Government Code section 3203states, “[e]xcept as otherwise provided in this chapter, or as necessary to meet requirements of federal law asit pertains to a particular employee or employees, no restriction Shall be placed on the political activities ofany officer or employee ofa state or local agency.” (Emphasis added.) On ballot measures specifically related to wages, hours, retirement and working conditions, Government Code section 3209states: Nothing in this chapterprevents an officer or employee ofa state or local agencyfromsoliciting or receivingpolitical funds or contributions to promote thepassage or defeat ofa ballot measure which would affect the rate ofpay, hours of work, retirement, civil service, or other working conditions 50 ofofficers or employees ofsuchstate or local agency, except that a state or local agency may prohibit or limit such activities by its employees during their working hours and may prohibit or limit entry into governmental offices for such purposes during working hours. Read together, Government Codesections 3203 and 3209 meanthat public officials can support activities for a ballot measure regarding retirement and working conditions — such as the CPRI. And public officials’ right to supportballot initiatives may not be impededin any way, except by local regulations on use of City time. PERB’s attemptto graft a meet-and-confer requirement on such activity would seriously impede the rights of public officials recognized and protected in Government Code sections 3203 and 3209. The City acknowledges that public funds may not be expended to campaign in support of or opposition to initiatives or candidates. Violating such laws can have serious consequencesfor public officials. See, e.g., Stanson v. Mott, 17 Cal. 3d 206, 223-26 (1976). Ifa City official used City facilities or personnel to support an initiative (as PERB’s Decision concluded), there may be potential criminal or, more likely, ethical violations. However, such conduct cannotnullify a duly certified citizens’ initiative and disenfranchise hundreds of thousandsofvoters.'> Allowing such a result would run counter to this Court’s edict “to jealously guard the 15 The recordis replete with the efforts Sanders and his staff attempted to take to adhere to local and state law policy on political activity. (XII AR 190:003361:1-3362:9; Id. at 3362:18-20; XIV AR 191:003687:16-23; Jd. at 3688 :22-3689:3; XVIII AR 195:004786, 4823; XXIII AR 200:005815, 5829, and 5834.) SI preciousinitiative power, and to resolve any reasonable doubts in favor of its existence.” Legislature v. Eu, 54 Cal. 3d 492, 501 (1991). IV. CONCLUSION The CPRI, an initiative which unquestionably obtained the required numberofverified signatures mandating it qualify for placement on the ballot as a citizens’ initiative, was an exercise of the constitutionally protected fundamentalright of direct democracy reserved by the people. It is a right that this Court has a duty to jealously guard and liberally construe so it is not improperly annulled. Any provision that could possibly limit its use must be narrowly construed. PERB’s Decision improperly concluded, whether viewed under a de novo orclearly erroneousstandard of review, that the support of the City’s Mayor somehow transformed the act of approximately 116,000 individuals signing a petition into a City-sponsored act subjecting it to the MMBA’s procedural meet-and-confer requirement, thereby disenfranchising the hundreds ofthousands of voters who overwhelmingly passed the initiative. Sanders’ actions, however, did not implicate the MMBAand were all fully within his First Amendment and California constitutionalrights, and expressly warranted bystate statutes. Accordingly, the Court of 52 Appeal’s Opinion granting the City’s writ petition and annulling PERB’s Decision should be affirmed. Dated: October 12,2017 MARA W.ELLIOTT, City Attorney M.Travis Phelps \) ChiefDeputy City Attorney Attorneys for Petitioner and Real Party in Interest CITY OF SAN DIEGO 53 CERTIFICATE OF COMPLIANCE [CRC 8.204(c)] Pursuant to Rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains 13970 words, including footnotes, but excludingthe table of contents, table of authorities, certificate of service, and this certificate ofword count), and is printed in a 13-point typeface. In makingthis certification, I have relied on the word count of the computer program used to preparethe brief. Dated: October 9, 2017 MARA W. ELLIOTT, City Attorney . Tray#s Phelps Chief Deputy City Attorney Attorneys for Petitioner and Real Party in Interest CITY OF SAN DIEGO 54 IN THE SUPREME COURT OF STATE OF CALIFORNIA PROOF OF SERVICE Boling v. Public Employment Relations Board Case No. 8242034 Appellate Case No. D069626 and D06930 PERB Decision No.: 2464-M, PERB Case Nos. LA-CE-746-M, LA-CE- 752-M, LA-CE-755-M and LA-CE-758-M I, the undersigned, declare that: I was at least 18 years of age and nota party to the case; I am employed in the County of San Diego, California. My business addressis 1200 Third Avenue, Suite 1100, San Diego, California, 92101. On October 10, 2017, I served true copies of the following document(s) describedas: e CITY OF SAN DIEGO’S COMBINED ANSWERBRIEF ON THE MERITS TO THE OPENING BRIEFS OF RESPONDENT PUBLIC EMPLOYMENT RELATIONS BOARD AND THE REAL PARTIESIN INTEREST UNIONS on the interested parties in this action as follows: Clerk of Court of Appeal _ Via TrueFiling Fourth District, Division One 750 B Street, Suite 300 San Diego, CA 92101 55 J. Felix De la Torre, General Counsel Wendi Ross, Deputy General Counsel Public Employment Relations Board 1031 18" Street Sacramento, CA 95811-4142 Tel: (916) 322-8231 Fax: (916) 327-7960 Ann M.Smith, Esq. Smith Steiner Vanderpool & Wax 401 West A Street, Ste. 320 San Diego, CA 92101 Tel: (619) 239-7200 Fax: (619) 239-6048 asmith@ssvwlaw.com Kenneth H. Lounsbery, Esq. Alena Shamos, Esq. LounsberyFerguson Altona & Peak, LLP 960 Canterbury Place, Ste. 300 Escondido, CA 92025 Tel: (760) 743-1226 Fax: (760) 743-9926 khl@lfap.com aso@lfap.com James J. Cunningham, Esq. Law Offices of James J. Cunningham 4141 Avenida De La Plata Oceanside, CA 92056 Tel: (858) 565-2281 jimcunninghamlaw@gmail.com Ellen Greenstone, Esq. Rothner Segall & Greenstone 510 South Marengo Avenue Pasadena, CA 91101 Tel: (626) 796-7555 Fax: (626) 577-0124 egreenstone@rsglabor.com 56 Attorneys for Respondent Public Employment Relations Board Via TrueFiling Attomeys for Real Party in Interest San Diego Municipal Employees Association Via TrueFiling Attomeys for Petitioners/ Real Parties in Interest Catherine A. Boling, T.J. Zane, & Stephen B. Wiliams Via TrueFiling Attomeys for Real Party in Interest Deputy City Attorneys Association Via TrueFiling Attorneys for Real Party in Interest AFSCME, AFL-CIO,Local 127 Via TrueFiling Fern M.Steiner, Esq. Attorneys for Real Party Smith Steiner Vanderpool & Wax in Interest San Diego City 401 West A Street, Ste. 320 Firefighters, Local 145 San Diego, CA 92101 Tel: (619) 239-7200 Via TrueFiling Fax: (619) 239-6048 FSteiner @ssvwlaw.com [xx] [ [ [ ] ] ] (BY ELECTRONIC SERVICE)Bytransmitting viaTrueFiling to the above parties at the email addresseslisted above. (BY PERSONAL SERVICE)I provided copies to Nationwide Legal for personal service on this date to be delivered to the office of the addressee(s) listed above. (BY OVERNIGHT DELIVERY) I enclosed said document(s) in a sealed envelope or package provided by Golden State Overnight (GSO) and addressed to the person(s) at the address(es) listed above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of GSO. (BY UNITED STATES MAIL) I enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the address(es) listed 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 correspondence for mailing with the United States Postal Service and that the correspondenceshall be deposited with the United States Postal Service with postage fully prepaid this same day in the ordinary course of business. I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct. Executed on this\OA day of October 2017, at San Diego, California. ‘ nnarerSnOo, Marci Bailey on 37