BOLING v. PUBLIC EMPLOYMENT RELATIONS BOARDRespondent’s Response to Amicus Curiae BriefCal.January 25, 2018IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CATHERINE A. BOLING; T.J. ZANE; AND STEPHENB. WILLIAMS, Petitioners, Vv PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, and 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 LOCAL 145 Real Parties in Interest. Case No.: 8242034 SUPREME COURT FILED JAN 25 2018 Jorge Navarrete Clerk Deputy After a Decision by the Court of Appeal, Fourth Appellate District, Division One . Case Nos. D069626 and D069630; 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) PUBLIC EMPLOYMENT RELATIONS BOARD’S COMBINED ANSWER TO AMICUS CURIAEBRIEFS J. FELIX DE LA TORRE,Bar No. 204282 General Counsel WENDIL. ROSS, Bar No. 141030 Deputy General Counsel JOSEPH W. ECKHART,Bar No. 284628 Board Counsel PUBLIC EMPLOYMENT RELATIONS BOARD 1031 18th Street Sacramento, California 95811-4124 Telephone: (916) 322-3198 Attorneys for Respondent Public Employment Relations Board IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CATHERINEA. BOLING;T.J. ZANE; AND STEPHENB. WILLIAMS, Case No.: 8242034 Petitioners, Vv PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, and CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEESASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; 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 by the Court of Appeal, Fourth Appellate District, Division One Case Nos. D069626 and D069630; 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) PUBLIC EMPLOYMENT RELATIONS BOARD’S COMBINED ANSWERTO AMICUS CURIAE BRIEFS J. FELIX DE LA TORRE,Bar No. 204282 General Counsel WENDI L. ROSS,Bar No. 141030 Deputy General Counsel JOSEPH W. ECKHART,Bar No. 284628 Board Counsel PUBLIC EMPLOYMENT RELATIONS BOARD 1031 18th Street Sacramento, California 95811-4124 Telephone: (916) 322-3198 Attorneys for Respondent Public EmploymentRelations Board TABLE OF CONTENTS INTRODUCTION o.oo. ccccccccceceeseeeeseseesneeseeeseeeeseeeeeeesseseessetsneseneeeses 14 ARGUMENTooocccecccccsececesseeeeecnseeseceseseescensessaeeeseceeseeeeseseessersaseesaees 17 I. Amici’s arguments regarding the applicable standard of Il. I. IV. review of PERB’s final decision add no valueorinsight into this case and can be disregarded..........cceeccccsssscccececeeeeseeesseeeeesnaes 17 A. Yamahadoesnot supply the standard of review for the legal interpretations of expert labor boards such as 1d5)00= cee17 The Board’s past decisions addressing local ballot measuresare irrelevant to whetherits interpretation of the MMBAinthis caseis entitled to deference.................. 21 LCC’s selective quotations from a purported transcript of oral argument in the Court of Appeal are improper and irrelevant. .0........cceeesesescceeesseseesseeeseesenseens 26 The Boardcorrectly interpreted MMBAsection 3505 to impose a duty to bargain on the City based on the Mayor’s CONGUCL.22.2... eeeeesececeeeseeeeseeeeesseeeeesessaceeceneeseeaueeeeseeeeensenseessrsssssieesees 27 The Board’s decision does not interfere with the local IMitlative TIQht. 22...eee ecceeeeeesesseeeecestecssceeeesssecnnnaeeeeesssessesecsens 32 A. The Board did not hold that the MMBAappliesto all citizens’ initiatives affecting terms and conditions of CMPlLOYMENE,. 0.0... cee esceesssssccceeseeeeceeeceesseeeeeeceseeessseesnseeeeeaes 32 The right of local initiative can be, and in this caseis, constrained bya statute of statewide concern such as the MMBA.0... ccccecccecesesseeceseeeeeeeseeeecnaaeeeeseeseeseaesssaeeeeas 34 Negotiating over an alternative ballot measure does not interfere with the initiative right............ cc eceeeeeeeees 39 Amici’s First Amendment arguments do not providea basis for affirming the Court of Appeal’s decision..............c::ceceeeeeenees 40 2 PERB’s Combined Answer to Amicus Curiae Briefs Case No. §8242034 The Court may properly decline to consider SDTEF’s argumentthat the Board’s decision violates the Mayor’s right to speak in his official capacity... 4] Even if this Court decides to consider them, SDTEF’s arguments fail on their Merits. .............eeeeeeeesseeesteeeseeeesenes 44 l. The Board did not punish the Mayororrestrain His SPC@Ch. 0... eee eeceesesseeseessneececeeesseeeeeeteseseesetensaees 45 2. The Mayordid not have a First Amendment right to use City staff and City resources to support a CitiZens’ INitiatiVE........ eee eeseeteeeteeereeees 52 a. The cases cited by SDTEF do not support a broad free speech right for executive officials acting in their official capacities. ................ 52 b. The fact that the Mayor’s actions were taken within the scope ofhis official dutiesis relevant even though the Board wasnotthe Mayor’s employer. ..........c::scccsceceesteeesteesssseeee 60 C. SDTEFfails to demonstrate that the Mayor had a First Amendmentright to use the City’s website or e-mail system, his State of the City address to the City Council, his City-paid staff, and other City resources to promote Proposition By oo... ee ceeeesseceeceseestetseseaeeeneeesens 62 3. Evenif the Board’s decision implicates the Mayor’s First Amendmentrights, it should be Upheld. oo... cecsccccccecseceseesseeeseeeseeeceseseeensesseeesaeeeees 66 a. Becauseit is aimed at the City’s economic conduct, not the Mayor’s speech, the Board’s decision is content- and viewpoint- neutral, and therefore does not trigger heightened SCIULINY. .....ccscccscccesceeseessessecesssseeessscesseesensaaes 66 Asan after-the-fact ruling on the applicability of the MMBA,the Board’s decisionis not a PYUOT TESHAIN. oo.eects eeeteetseeseeeeeesees 69 Even if it were required to satisfy strict scrutiny, the Board’s decision would be Upheld. 0... cece cccccceesssseeseesceeeeeesssesessseeeeeeees 71 3 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 CONCLUSION0.cccicecseeeeeeeneeeceeeneseassecesesaneeeeeceseesateteesnsaceseneeeeees 75 4 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 TABLE OF AUTHORITIES FEDERAL CASE LAW Bauer v. Shepard (7th Cir. 2010) 620 F.3d 704 ooo ceeseeeceeeceneretetseeeeeesenestesensesseenes 57 Bond v. Floyd (1966) 385 U.S. 116 weeecccccsseeeseceseceseccsseeseecsseesesesesseseeseeensesenes 55 Broadrick v. Oklahoma (1973) 413 U.S. 601eeccccccssseeecsssececssecevesseseecsessssssseeeserseeenens 64 Carson v. Vernon Twp. (D.N.J. July 21, 2010, No. 09-6126 (DRD)) 2010 WL 2985849 oo eecsecsetssesecneecesecseeceseesaeesesecesaeesstensessseseeseseeeseaseeseseresaee es 56 Catholic High School Assn. ofArchdiocese ofNew York v. Culvert (2d Cir. 1985) 753 F.2d L161 occeccceesecesseeeseseseseseeeeeees 72 City ofEl Cenizov. State (W.D. Tex. Aug. 30, 2017, No. SA-17-CV-404-OLG) 2017 WL 3763098 o.oo. ee eeceeeeeceseesseeececseteeeeeaeeseeesetsatenseeseeeenees 56, 58 City ofSan Diego v. Roe (2004) 543 U.S. 77cieeccecessccecsncecseeeeneesseessseesseeeseeesssnsseseeessssessseees 60 Connick v. Myers (1983) 461 U.S. 138ccccccecesscesseesesseeessseecessesesssceceeessseseteeees 61 Conservation Com. of Town of Westport v. Beaulieu (D. Mass., Sept. 18, 2008, No. CIV.A. 07-11087-RGS) 2008 WL 4372761 oo. ceeeccccsncceeseeesaeeeseeseneenseeseeeeesecsasessessseeesesensees 56 Ellis v. BrotherhoodofRy., Airline and S.S. Clerks, Freight Handlers, Exp. and Station Employees (1984) 466 U.S. IScccccsccccccseesesescesceecccccusususseessssucussusrssssesecccececscusacaeauaeeesserseaussaaesess 72 Ex parte Perry (Tex. App. 2015) 471 S.W.3d 63... ccccccceeeeesssecssccnseeeeeeeens 48, 61 Garcetti v. Ceballos (2006) 547 U.S. 410 oo. cececcccccesssseceeeccessssseeeseeesecessnssersens 55, 60, 61 5 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 HK. Porter Co. v. National Labor Relations Bd. (1970) 397 U.S. 99 occeececcsccccscccesssesscsssseeescceesesseetsesssecsessessaaaaees 68 Hartman v. Register (S.D. Ohio Mar. 26, 2007, No. 1:06-CV-33) 2007 WL QS 193 voceee eeseeeeeneteeetseeeeeecrsceseeserseeseesaeceseessaeseaeseaeeeeeeteneeeneeeeas 56 Hoffman v. Dewitt Cty. (C.D. Ill. Mar. 31, 2016, No. 15-3026) 2016 WL 1273163 ooeececceccscccnecencessnaeeseseeceaecasesaesensenaeeeseaeessaeesssesateceseseesseeenas 56 Hogan v. Twp. ofHaddon (D.N.J. Dec. 1, 2006, No. CIV. 04-2036 (JBS)) 2006 WL 3490353eceescceseeseesenseecsscecesessecesseescneescessecsseeeesseseeeessecesseeneas 56 Holloway v. Clackamas River Water (D. Or. Dec. 9, 2014, No. 3:13-CV-01787-AC) 2014 WL 6998084ooeccesceesseceeeneeceessecseesseessteeessaeesseesiesssseesseeesseeees 56 Illinois Dunesland Preservation Society v. Illinois Dept. of Natural Resources (7th Cir. 2009) 584 F.3d 719... cecceceseeseeeeees 63 Initiative and Referendum Institute v. Walker (10th Cir. 2006) 450 F.3d 1082 oooeeceseesseeesstecsseenseeeseeesseeenas 74 Jenevein v. Willing (Sth Cir. 2007) 493 F.3d S51 oo. cecescsseeececeeeeeseteeeeteesseeeaes 56, 57, 73 Keller v. State Bar ofCalifornia (1990) 496 U.S. Leeececeessneceteessesseceseceeeeeesseeesseesseessecsseeeesseeenes 59 Marijuana Policy Project v. U.S. (D.C. Cir. 2002) 304 F.3d 82.0... ccccccccsssesseceessseesesecseessseeseessssees 74 Miller v. Davis (6th Cir., Aug. 26, 2015, No. 15-5880) 2015 WL 10692640oeecccceccceneeesseseeecterecssseeseeesseeeesssseeessseesaesenseeeceasacens 55 National Labor Relations Bd. v. Katz (1962) 369 U.S. 736 oeeeccccccsseeesseesecseeesseeseseessseeesseessesesesecssesensess 68 National Labor Relations Bd. v. Virginia Electric & Power Co. (1941) 314 US. 469.eccccsscstecesteseseesseeeesseseesesssresesseseeees 47 6 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539 oeeeccccseeesceeeeeeesecenseceeceseceeeeessecssecessseeeeseees 70 Newton v. LePage (Ist Cir. 2012) 700 F.3d S95... ceccceeseeseeecessecsssesecesesseeensesseeseneees 63 Nordstrom v. TownofStettin (W.D. Wis. May 15, 2017, No. 16-CV-616-JDP) 2017 WL 2116718eee cccseeeessseecseeceseccesescsssecessscecesseesseessseccssessstseees 56 Parks v. City ofHorseshoe Bend (8th Cir. 2007) 480 F.3d 837 ooo. ceeccescssceeecssecssecessessssseesessssssssesees 55 Pickering v. Board ofEd. of Tp. High School Dist. 205, Will County, Illinois (1968) 391 U.S. 563... ceccccessccsseesccetsesseeceseceensseees 61 Pistoresi v. Madera Irr. Dist. (E.D. Cal. Feb. 3, 2009, No. CV-F-08-843-LJO-DLB) 2009 WL 256755oeeeceecccecssseceseeseessecsseecseseseeecessecssseesscesscessueessseessass 56 Pleasant Grove City, Utah v. Summum (2009) 555 U.S. 460 oo. eeccccscescssseesecessecsseseesssccsecessecssessessserscessnace 63 Rangra v. Brown (Sth Cir. 2009) 566 F.3d 515 ooo ecccccscssccsecessssesecseeeseesscsssevsscesesenss 56 Republican Party ofMinnesota v. White (2002) 536 U.S. 765 oc eeeeccescceseeseesseessecsecssseceessecesecessceseeeesseeensecesues 61 Rosenberger v. Rector and Visitors of Univ. of Va. (1995) S15 US. 819 oo ceccccsseeesseseccseeseseseccseseseessscescesessenserecseaenss 69 Siefert v. Alexander (7th Cir. 2010) 608 F.3d 974 oo. cccccccesscseccseecssesssesssesecensessess 57, 61 Sutliffe v. Epping SchoolDist. (Ist Cir, 2009) 584 F.3d 314.cccccesseecesssesseccnseeseesersevseseeesas 63 U.S. Civil Service Commission v. National Assn. ofLetter Carriers, AFL-CIO (1973) 413 U.S. 548... cccccccsccsssecssceesseereceenans 61 U.S. v. Playboy Entertainment Group, Inc. (2000) 529 ULS. 803 woe eeeesseeeteeseeeseecseeesssceceeseessesessesssesessssseresenas 73 7 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 Velez v. Levy (2d Cir. 2005) 401 F.3d 75 occeececeseeceeseneeeeeseeeseessesseeeseesesaeecens 56 Walker v. Texas Div., Sons ofConfederate Veterans, Inc. (2015) 135 S.Ct. 2239 oocceeceeneeseeceseeeeeeeeeeseeseseeesteeseeseessaeenns 63 Waters v. Churchill (1994) 511 U.S. 661 woooceccccccccecccecececcesseeeecesssesseeneceessneaeeseees 59 Werkheiser v. Pocono Twp. (3d Cir. 2015) 780 F.3d 172 occecescescessseeeessseseeseeseeeeeesesseeeesseeens 56 Willson v. Yerke (M.D.Pa. Dec. 23, 2013, No. 3:10-CV-1376) 2013 WL 6835405oeeeeseeeceeeeeneeeeseeseeeeeesaeessaneesersseeceaeeseeeeeeeesateseeensaeees 56 Wood v. Georgia (1962) 370 U.S. 375 Loe eeeecccceeessecsecessecsneeecesseeseeneeseeees 53, 54, 56, 57 CALIFORNIA CASE LAW American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258 oo... eee cecsessseeteseeeeeneeessteeeesseens 44 Banning Teachers Assn. v. Public Employment Relations Bd. (1988) 44 Cal.3d 799 ooo ccsceesssesseeseseeeeeseesseseaeeesesneeeecaneeessnsesees 17 California Assn. for Safety Education v. Brown (1994) 30 Cal-App.4th 1264.00eeepeeeaceeeaeteaceteaeeeeseneaeeeeeenees 42 California Cannabis Coalition v. City of Upland (2017) 3 Cal. Sth 924ooocceeeesseceseecsseeeeeeeeessesecsseeseeessaeeeseseeeses 37 City ofPalo Alto v. Public Employment Relations Bd. (2016) 5 Cal.AppSth 1271eeeeeeecesseeceseeteeeseetseeesneteeseas 19, 24 Committee ofSeven Thousand v. Super. Ct. (1988) 45 Cal.3d 491 ooo cccesseeeseccsneeeceseeecsesseeseeeseeessseeeeeneeees 35 Costa v. Workers’ Comp. Appeals Bd. (1998) 65 Cal.App.4th L177iceeeescceeeesseeceseneecsseseitesssneeesseeeeas 44 County ofLos Angeles v. Los Angeles County Employee - Relations Com. (2013) 56 Cal.Ath 905 ooo. cceccccsssecsesssseeeeeeeeesans 19 8 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 County ofRiverside v. Public Employment Relations Bd. (2016) 246 CalApp.4th 20eeeeccseceesesteesentecseeeeseeeesueeeseeseeees 68 County ofRiverside v. Super. Ct. (2003) 30 Cal.4th 278 oo. .ccccccsccccssececeesssseeensesseessscessseeeseeseessaseeeeseess 67 Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575 oooccsceseeeeceeesneeeenetsesesssecsieeeersaeeeseeeessaees 19 DiQuisto v. County ofSanta Clara (2010) 181 Cal.App.4th 236oeeeccseceseeseeseseeceseeeeseeeeseeessaees 30 Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services Dist. (1975) 45 Cal.App.3d 116...29, 50 DVD Copy Control Assn., Inc. v. Bunner | (2003) 31 Cal.4th 864.00. ceccccesessseeceetseesseeesesaeeeeseeessaees 69, 70 E. L. White, Inc. v. City ofHuntington Beach (1978) 21 Cal.3d 497 ooo cecceceseceessssseeceesseeesseeeesnaaeeesaeeestseessaees 44 Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850.0...ce ccccccesseceeeseseeesesseneesseeeeeseaeceseeessseeessees 72 Fisher v. City ofBerkeley (1984) 37 Cal.3d 644...eeeccsseeeceesssneeseseeseeerseeesssaeeeseeeenenes 43, 44 George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279... eccccccccccsssseceesssssnteeesssseeesstsees 18 Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal. Sth L118...ccccecccessseeeeeestseeeesaeessesseeesensessssseseese 18 Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848oooeenceeeceeesseneceesteeesneereestaeesseeessanensees 17 Howard Jarvis Taxpayers Assn. v. City ofRoseville (2003) 106 Cal.App.4th 1178 occcecee sees eteseeeteeeeenenes 40, 50 Howard Jarvis Taxpayers Assn. v. City ofSan Diego (2004) 120 CalApp.4th 374 ooiccccccessnrecserearersereeeceseeestaeessaeensees 35 Inglewood Teachers Assn. v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767.0... cecccccsceccsseseeeeseeesseneeeesaeeesseesseeens 20 9 PERB’s Combined Answer to Amicus CuriaeBriefs Case No. 8242034 J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d Lie ccecccscsssseeecessneccssessseseesseeesssseeeeseaee 17, 18, 28 Jeffrey v. Super. Ct. (2002) 102 Cal.App.4th 1cceccccssecsessecseesseecseeeessecsseecesesnesens 50 Lance Camper Mfg. Corp. v. Republic Indemnity Co. of America (2001) 90 Cal-App.4th 1151]ccccccesseecessersssensaes 42 Lavie v. Procter & Gamble Co. (2003) 105 Cal-App.4th 496 0... cceccscsesscesesssreeessssseseesseesseseeeens 42 Legislature v. Eu (1991) 54 Cal.3d 492oicccccseeceseeeseesecesesseceeseeensseesaseseeessseeags 39 Lockyerv. City and County ofSan Francisco (2004) 33 Cal-4th 1055 ooeecceseececsneseeseseesseeeesteeeeesessesteeeeesssenes 58 Los Angeles County Employees Assn., Local 660 v. County ofLos Angeles (1973) 33 Cal.App.3d 1...cccccccscccsssccesssressssseetsecens 29 Mervynnev. Acker (1961) 189 CalApp.2d 558 ooo eccccccccssectsesteeeseesssseesessesscensesseeseeens 34 People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591 o.....cccccccsssessccssseecesesseeeesseesenspassim People v. Battin (1978) 77 Cal.App.3d 635 wo. ceiceeccescccessscececeeessseeesesseeeeseeseneeeeseeeees 28 People v. Hannon (2016) 5 Cal.App.Sth 94.0... cccccccessssensesssessaeecesesseeeeesseessesenneeees 42 Placentia Fire Fighters v. City ofPlacentia (1976) 57 Cal.App.3d 9 ooccccccsssseseseetssesessesssescssaeecsesesseesseneesens 50 Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083.0... 48, 67, 69 Regents ofthe Univ. of Cal. v. Public Employment Relations Bd. (1986) 41 Cal.3d 601 oo. eccscccssseessssresseesseeesssecessseessecssesersesaes 20 Ruline Nursery Co. v. Agricultural Labor Relations Bd. (1985) 169 Cal.App.3d 247......... veceeeseeseeeeeeeessseeeeessaaeeeeaeeeetesstees 69 10 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 Sacramento County Employees’ Retirement System v. Super. Ct. (2011) 195 CalApp.4th 440 ooocecscsseeresseeeeesseeeeseseessseens 43 San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850 oo... eeccessseesseeeeeseesessresecseceseeesseecseeesseess 17 Stanson v. Mott (1976) 17 Cal.3d 206...ececeesneeeeceeeeseeeeseesesseeeeeeersesseeesseeaes 62 Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335 oo... eecscseceesseesseecesseeeesesseeesseenes 18 Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal. Sth L1G.eeeeesneceeeeeteeseeeeeseeeesaeeesesseeeeeeneenes 18 Voters for Responsible Retirement v. Bd. ofSupervisors (1994) 8 Cal4th 765 oooeee ccceseeesceeeeceeseesseeceeeserseeeeees 35, 36, 73, 75 Yamaha Corporation ofAmerica v. State Bd. ofEqualization (1998) 19 Cal.4th Looeeceeeeeseseeecesceeseecssetesteeeseeeesesseesees 14,17 CALIFORNIA STATUTES Elec. Code, § 1405.2... cecccccsccccssssccceecsessseececseeerseecesseeeseeeesesseensssserengas 51 Elec. Code, § 9214... ccc cccccsecccsssseecesessssensececseseesseeesssseeeeseceesssstsaresseneas 51 Elec. Code, § 9255 oo... cceccescssssccessssssceecsessenececesesesessessaeeeeeeesesseesessnsesenses 50 Elec. Code, § 9255, subd. (C) oo... ecccsessssteceeseserssteeesseeeeesecerssssssaseeseneas 51 Gov. Code, § 3207 .....eccccccccsssccccssssecccecsessnseececsesesscteeessseeessuccesussessseseenas 62 Gov. Code, § 3209ieecsceesscessseeessseceeseesseeeeeseesseessneeeeseatessesesenseenss 62 Gov. Code, § 3500 et seq...seueuauseecessentesauecessnsenseesesessneceeeesaeseueas 14 Gov. Code, § 3500, subd. (8) ooo... eccccessssecesseseesseeeesseeseenseesssseennes 67, 72 Gov. Code, § 3504.5 oooceiccccccssccccsseseseesceeeseaeceesseeseseeeessseeeeeeeeeensessaseeeeunas 27 Gov. Code, § 3505 oo. eecccccscssccccessseeeeecesssssseeeessesesseeeeessseasaeeneseeeeeaspassim Gov. Code, § 3506.5, subd. (C) ooo eeceeeeeeeseeseeeceeeeseeeseeseneeesseeaes 46, 49, 68 Gov. Code, § 3507 oeccceeeeceseeeeneeeccneeectirensesaeceaseeaseeeesseeesessseseeesssees 24 11 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 Gov. Code, § 3509, subd. (D) oo... eeeeseeeesecnceceeeeserseeceseeeeesaeeeaeeseeestensaee 23 Gov. Code, § 3509.5, subd. (b) oo... cece ccecccesseceessneeeeeeeeeeeeeesstsssesersenanes 20 Gov. Code, § 7522.30, Subd. (f)..........cccceescccessseceeeessessseeseseeeeeseestseeseseeens 31 CALIFORNIA ADMINISTRATIVE DECISIONS City & County ofSan Francisco (2007) PERB Decision No. 1890-M...........ccesesssccceceesssseeeesseeensneaees 25 City & County ofSan Francisco . (2009) PERB Decision No. 2041-M......ccecccsssseceeeessseeeeessessnneeees 25 City & County ofSan Francisco (2017) PERB Decision No. 2540-M......eeeeeecceeeeseeeeeesnneteneeeseess 22,23 City ofMontebello (2016) PERB Decision No. 2491-M....... ec ceccccceessesscsteeeeesteeeeseseeeeeees 68 City ofPalo Alto (2014) PERB Decision No. 2388-M....... cc eessccceessessrseseeeesseeeennees 22,24 City ofPalo Alto (2017) PERB Decision No. 2388a-M ........cccscccccssssesessteeeesteeesseeseeeees 32 City ofPasadena (2014) PERB Order No. Ad-406-M ooo... ceceeeseeceeesecteeeeeetssesseeeenses 68 County ofSanta Clara (2010) PERB Decision No. 2114-Meeeeescceeeeeeeeees 23, 24, 25, 30 County ofSanta Clara (2010) PERB Decision No. 2120-M.......ccceccesseeceeeseseeneeeeens 23, 25, 30 County ofSanta Clara (2013) PERB Decision No. 2321-M........ccccccsssssseeeeeceeeseteeeetecstaneeeas 68 Modesto City Schools . (1983) PERB Decision No. 291]... ceccccccsccessceeeececeeessseeessseeneeseenes 69 REGULATIONS Cal. Code Regs., tit. 8, § 32215 ooo. ecccccstcesteeeeseeeeeeeestaetsseetseeeseeenes 23 Cal. Code Regs., tit. 8, §§ 32602-32604 oo... eccceceetteeeeseeseeeeesesenens 46 - 12 PERB’s Combined Answerto Amicus Curiae Briefs Case No. S8242034 OTHER AUTHORITIES Stats. 2000, Ch. 55, § 17 occcesessscecesneesseseeeesseeeseeesneeeesseeesseeesseessseseeees 51 RULES OF COURT Cal. Rules of Court, rule 8.500(b)(1) _eceesseeetessseeeeceeeceeeceeseeeeeeseseesatens 43 Cal. Rules of Court, rule 8.520(2).........cccccecsccssseceesseeeeeeeesesessevessssscesseeess 26 CALIFORNIA SECONDARY SOURCES Asimow, The Scope ofJudicial Review ofDecisions of California Administrative Agencies (1995) 42 UCLA L.Rev. LIS7 ooo eceeeeeceeneeeeeseceesseeeeseeeeeeeaesseesaeeeseeessaeseeaeseasenses 19, 20 13 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 INTRODUCTION The Public Employment Relations Board (PERB or Board) hereby submits this combined answerto the three amicusbriefsfiled on behalf of the City of San Diego (City) and/or Catherine A. Boling, T.J. Zane, and Stephen B. Williams(collectively, the Ballot Proponents) by: (1) Pacific Legal Foundation, Howard Jarvis Taxpayers Association and National Tax Limitation Committee (collectively, PLF); (2) San Diego Taxpayers Educational Foundation (SDTEF); and (3) League of California Cities, California State Association of Counties and International Municipal Lawyers Association (collectively, LCC). As explained below,the arguments in those briefs offer no basis for affirming the Court of Appeal’s erroneousdecision in Boling v. Public Employment Relations Board (2017) 10 Cal.App.5th 853 (Boling). Mostof the arguments raised by PLF and LCC havepreviously been made. For instance, LCC follows the City and the Ballot Proponents by arguing that the court below wascorrect whenit held, sua sponte, that Yamaha Corporation ofAmerica v. State Board ofEqualization (1998) 19 Cal.4th 1 (Yamaha) required de novoreview of the Board’s interpretation of the Meyers-Milias-Brown Act (MMBA).' Like the City and the Ballot Proponents, LCC claimsthat given the presence of “other” legal issues, ' The MMBAis codified at Government Codesection 3500 et seq. All further statutory references are to the Government Code. 14 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 the expert Board’s interpretation of the MMBAis notentitled to any deference whatsoever. But, as PERB has explained previously, and briefly reiterates below, Yamaha has never been applied—bythis or any other court—to the legal interpretations of expert labor boards such as PERB. Rather, courts have uniformly applied the “clearly erroneous” standard of review to PERB’s final decisions. Further, Yamaha certainly does not support the proposition that PERB’s legal interpretations are not entitled to deference merely because a case involves otherissues. LCC and PLFalso echo the City and the Ballot Proponents by stressing the sanctity of the citizen’s initiative process—a proposition with which PERB has nodispute. Contrary to PLF’s and LCC’s arguments, the Board’s decision did not hold that the MMBAappliestoall citizens’ initiatives affecting terms and conditions of employment. Rather, based on the unique facts on this case, the Board held that the City violatedits duty to meet and confer in good faith under MMBAsection 3505. This determination was based on the actions of the City’s “Strong” Mayor and chief labor negotiator, Jerry Sanders, who helped develop, draft and promote a citizens’ initiative—drastically changing City employees’ pension benefits—as a mechanism to evade the City’s obligation under the MMBAto bargain in good faith. Nor did the Board’s decision impact 15 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 the citizens’ initiative referred to as Proposition B. The decision leaves the initiative intact in its entirety. Unlike LCC and PLF, SDTEFcovers new ground,but in the process of doingso, it seeks to considerably expandthe issues presented to this Court. So far in thislitigation, the City has argued that the Board’s decision interfered with the Mayor’s First Amendmentrights to speak as a private citizen, and PERB has explainedthat those rights do not extend to the Mayor’s speechin his official capacity, whether executing his duties as the City’s chief executive officer, acting as lead labor negotiator, or using the resourcesof his City office. Now, however, SDTEFarguesthat the Mayorin fact enjoys a virtually unfettered First Amendmentright whether speakingas a private citizen or as Mayor. Needlessto say, this Court need not decide this issue, raised only by an amicus. Even if it does, however, SDTEF’s argumentdoes not withstandscrutiny. It chiefly relies on cases involving legislators, not executive officials such as the Mayor, who cannot be excused from performing their legally mandated duties on the basis of their First Amendmentrights. In short, the arguments of PLF, LCC, and SDTEFoffer no basis for affirming the Court of Appeal’s erroneous decision below. For the reasons discussed below as well as in PERB’s Opening Brief (OB) and Reply Brief (RB), PERB urgesthis Court to overturn the Court of 16 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 Appeal’s decision and affirm the Board’s decision in City ofSan Diego (2015) PERB Decision No. 2464-M. ARGUMENT I. | Amici’s arguments regarding the applicable standard of review of PERB’s final decision add no valueorinsight into this case and can be disregarded. A. Yamaha does not supply the standardof review for the legal interpretations of expert labor boards such as PERB. LCC arguesthat this case presents the ideal “vehicle” for this Court to “re-confirm” a de novostandard of review based on Yamaha, supra, 19 Cal.4th 1. (LCC Br., p. 15.) Yamaha, however, has never previously been applied to an expert labor relations board such as PERB. Instead, this Court has determined that the “clearly erroneous” standard appliesto PERB’s decisions,just as it does to those of the Agricultural Labor Relations Board (ALRB). (See, e.g., Banning Teachers Assn. v. Public Employment Relations Bd. (1988) 44 Cal.3d 799, 804 (Banning), citing J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d1, 29 (J.R. Norton); San Mateo City SchoolDist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856, citing Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 859 and JR. Norton, supra.) Recently, this Court emphatically reaffirmed the deferenceit gives the ALRB. “[T]he Board, as the agency charged with the ALRA’s 17 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 administration, ‘is entitled to deference wheninterpreting policyin its - 999field of expertise.’” (Gerawan Farming, Inc. v. Agricultural Labor Relations Bd, (2017) 3 Cal.5th 1118, 1155, quoting J.R. Norton, supra. 26 Cal.3d 1, 29.) “The Legislature ‘intended that the ALRB serve as “one of those agencies presumably equipped or informed by experienceto deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and 999therefore must respect.” (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.Sth 1161, 1168, quoting Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346.) “Where the Boardrelies on its ‘specialized knowledge’ and ‘expertise,’ its decision ‘is vested with a presumption ofvalidity.’” (bid., quoting George Arakelian Farms, Inc. v. Agricultural Labor Relations Bad. (1989) 49 Cal.3d 1279, 1292.) Asa result, to now affirm the Court of Appeal’s reliance on Yamahain this case would be an abrupt and unwarranted departure from settled law. LCCargues that resort to Yamahais appropriate because the Board’s decision was a “foray into municipal, Constitutional and election laws, as well as common law [agency] principles,” ostensibly outside of PERB’s expertise. (LCC Br., p. 15.) While PERB acknowledges,asit has throughoutthis case, that it is not entitled to deference when 18 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 interpreting external laws, such as constitutional provisions (Cumerov. Public EmploymentRelations Bd. (1989) 49 Cal.3d 575, 583), the Legislature entrusted interpretation of the MMBAto the Board’s expertise. Thus, the presence of other legalissues in a case doesnotallow a court to simply disregard the expert Board’s interpretation of the MMBA.In PERB’s more than 40-year history, the courts have consistently deferred to the Board’s interpretation even ifother extraneous issues were implicated. (/d. at pp. 586-587; County ofLos Angeles y, Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 922; City ofPalo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1287-1288 (Palo Alto) [applying the “clearly erroneous” standard in a case that dealt with election law and constitutional issues, in addition to issues of MMBAinterpretation].) LCC also attempts to defend the Court of Appeal’s reliance on Yamahabyreferring to Professor Asimow’s article, The Scope ofJudicial Review ofDecisions ofCalifornia Administrative Agencies (1995) 42 UCLA L.Rev. 1157. (LCC Br., pp. 14-15.) However, nothingin that article even remotely suggests that a reviewing court may ignore an agency’s interpretation of its own statute when a case presents other legal issues. In fact, the article confirms that while California courts are not required to accept an agency’s reasonable interpretation of an ambiguous 19 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 statute, there are circumstances in which “courts are required to accord deference or ‘great weight’ to an agency’s interpretation.” (/d. at p. 1194.) Among these circumstances are whenthe “interpretation [is] contained in a written opinion renderedin the course of formal agency adjudication”(id. at p. 1196), and when “the legal text to be interpretedis technical, obscure, complex, or open ended,or ... entwined with issues of fact, policy and discretion”(id. at p. 1195). Notably, as the Board previously argued, both of these circumstancesare presentin this case, and the Board’s decisionis therefore entitled to greater deference. (PERB OB,pp.41, 61.) LCC also cites a portion of Asimow’sarticle in which he recounts confusion among Washingtonstate judges about the differences between a “clearly erroneous” and a “substantial evidence” standard of review. (LCC Br., p. 15.) This part of the article, however, concerns judicial review of an agency’s factualfindings, not its legal interpretations. (See Asimow,supra, 42 UCLA L.Rev. 1157, 1191-1 192.) It is therefore “Noneofthe amici dispute that PERB’s factual determinations are conclusive if supported by substantial evidence. (§ 3509.5, subd.(b).) Underthis standard, “[i]f there is a plausible basis for the Board’s factual decisions, [the court is] not concerned that contrary findings may seem ... equally reasonable, or even more so.... [A] reviewing court may not substitute its judgmentfor that of the Board.” (Regents ofthe Univ. of Cal. v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 617; Inglewood Teachers Assn. v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767, 776-779, 781.) 20 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 irrelevant to whether the Board’s legal interpretations are subject to review underthe clearly erroneous standard. In short, nothing in Asimow’s article supports LCC’s view that an agency’s interpretation of its own statute should receive no deference when case involves otherlegal issues. Thus, LCC’s arguments do notestablish that the Court of Appeal applied the correct standard of review in this case. This Court has repeatedly affirmed that deference must be afforded the Board’sfinal decisions under the clearly erroneous standard, and it should do so again here. B. The Board’s past decisions addressing local ballot measuresare irrelevant to whetherits interpretation of the MMBAinthis caseis entitled to deference. Citing four Board decisions concerning local ballot measures—and three non-precedential decisions by PERB administrative law judges— LCCclaims that the Board “has been consistently hostile to local ballot measures,” has “posted legal interpretations in areas outside its specialized sphere of expertise, and has argued that these interpretations are subject to deference underthe “clearly erroneous” standard of review. (LCC Br, p. 9.) LCC is, however, misrepresenting the Board’s arguments and the cited Board decisions. 21 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S$242034 Most importantly, it is not true that the Board has arguedthatitis entitled to deferencein its treatment of “external” legal issues, such as _ election law and constitutional law. The Board has repeatedly acknowledged thatit is not. (See § I.A., ante.)? As a result, whether such issues are tangentially involved in the Board decisions LCC cites, and whether the Board offered an interpretation of those legal issues in those decisions, are irrelevant to the question before this Court: whether the Board’s interpretation of the MMBAis subject to de novo or “clearly erroneous” review. Nevertheless, LCC’s argument is an unfounded attack on the Board’s neutrality and expertise. Each of the four cited decisions show the Board primarily deciding legal issues of pure MMBA interpretation, not issues outside its expertise. (City & County ofSan Francisco (2017) PERBDecision No. 2540-M [whether binding interest arbitration process was a “reasonable” dispute resolution process within the meaning of section 3507]; City ofPalo Alto (2014) PERB Decision No. 2388-M [whether section 3507 required a city council to consult in good faith with an employee organization before approving a ballot measure terminating ° As argued in its Opening Brief, PERB maintains that common law agencyprinciplesare so intrinsically entwined with questions of MMBAinterpretation and policy that the Board must receive deference on those issues as well. (See PERB OB,pp. 61-62.) 22 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 the city’s interest arbitration process]; County ofSanta Clara (2010) PERBDecision No. 2114-M (Santa Clara I) [whether section 3505 required a county to meet and confer with an employee organization before approving ballot measures concerning interest arbitration and prevailing wages]; County ofSanta Clara (2010) PERB Decision No. 2120-M (Santa Clara ID) [same].)* Moreover, the Board’s determinations in these cases followed existing judicial precedent, which the MMBAexpressly dictates. (§ 3509, subd. (b) [the Board must “apply and interpret unfair labor practices consistent with existing judicial interpretations of this chapter’].) For instance, the Board’s conclusion in Santa Clara I and Santa Clara II was a direct and straightforward application ofPeople ex rel. Seal Beach Police Officers Association v. City ofSeal Beach (1984) 36 Cal.3d 591 (Seal Beach), in which this Court held that MMBAsection 3505 requires local agencies to bargain in good faith with the employees’ exclusive representatives, before proposing to the electorate a charter amendmentthat * As noted, LCC cites three decisions by administrative law Judges. These are not decisions of the Board andare not precedential unless adopted by the Board. (Cal. Code Regs., tit. 8, § 32215.) Only one ofthe cited decisions was adopted by the Board, in City & County ofSan Francisco, supra, PERB Decision No. 2540-M. The other two have been appealed to the Board but are in abeyanceat the request of the parties. These cases therefore do not support LCC’s claim regarding the Board’s treatment of local ballot measures. 23 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 would impact the employees’ terms and conditions of employment. (Santa Clara I, supra, at p.9.) Likewise, the Board’s conclusionin City ofPalo Alto, supra, PERB Decision No. 2388-M,represented nothing more than an extension of Seal Beach’s rationale to section 3507’s requirementthat public agencies must consult in good faith before modifying their procedures forthe resolution of bargaining disputes.’ Significantly, the Courts of Appeal affirmed the Board’s decision in three of these cases,° ° On review, the Court of Appeal embracedthis conclusion: “Seal Beach dealt with the duty to meet and confer imposed by section 3505, not the duty to consult in good faith imposed by section 3507. Nonetheless, we see no reason whyits reasoning should not apply here.” (Palo Alto, supra, 5 Cal.App.5th 1271, 1298.) ° After full briefing, the Sixth Appellate District summarily denied petitions challenging Santa Clara I and Santa Clara II filed by both the employer and the employee organizations. (County ofSanta Clarav. Public Employment Relations Bd. (December 29, 2011, H035791); County ofSanta Clara v. Public EmploymentRelations Bd. (December29, 2011, H035846); Santa Clara County Correctional Peace Officers’ Assn.v. Public Employment Relations Bd. (Dec. 29, 2011 (H035786); Registered Nurses Professional Assn. v. Public EmploymentRelations Bd. (Dec. 29, 2011 (H035804).) On review of City ofPalo Alto, supra, PERB Decision No. 2388- M,the Court of Appeal recognized that PERB’s construction of the MMBA“fall{s] squarely within its expertise” (Palo Alto, supra, 5 Cal.App.5th 1271, 1288); that the Board’s interpretation wasnot “clearly erroneous”(id. at p. 1292); and that there was no conflict between the Board’s interpretation of section 3507 and the employer’s constitutional “power to propose charter amendments”(id. at p. 1298). Despite approving the Board’s finding that the employer violated the MMBA,the Court of Appeal determinedthat part of the Board’s remedial order was invalid. Specifically, the court concluded that the Board could not order the employerto rescind a resolution passed by its governing body, 24 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 with the fourth currently pending.’ LCC’s argument that the Board has posited legal interpretations outside its area of expertise is therefore meritless. Also meritless is LCC’s claim that the Board has been consistently hostile to local ballot measures. Contrary to LCC’s assertion, in neither Santa Clara I, supra, PERB Decision No. 2114-M nor Santa Clara IT, supra, PERB Decision No. 2120-M did the Board “strike down”a ballot measure. The Board found a violation of the MMBA only with respect to one of the two ballot measures involved in those cases, and its remedy did not affect the ballot measure, which had not been passedbythe voters. (See Santa Clara I, supra, at p. 18.) LCC’s claim ofhostility is further undermined by the fact that the Board has twice rejected the argument that the City and County of San Francisco’s binding interest arbitration process, which was enacted by ballot measure, violates the MMBA. (City & County ofSan Francisco (2009) PERB Decision No. 2041-M; City & County ofSan Francisco (2007) PERB Decision No. 1890-M) Far from evidencing hostility or legal interpretations outside the Board’s expertise, the Board’s cases although the Boarditself could declare the resolution void. (/d. at p. 1320.) ’ City & County ofSan Francisco v. Public Employment Relations Board (A152913). 25 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 involving ballot measures show the Boardcarefully interpreting the MMBAinlight of constitutional and election law issues—just asit did in this case. C. LCC’s selective quotations from a purported transcript of oral argument in the Court of Appeal are improper and irrelevant. LCC further attempts to bolster its argumentbyciting a portion of a purported transcript of the oral argument before the Court of Appeal in this matter. (LCC Br., pp. 13-14.) Reference to this transcriptis improper, and, in any event, does not support LCC’s argument. LCC’s quotations from oral argumentare inappropriate, given that no transcript of oral argument appears in the record ofthis case, and that LCCdid notfile a transcript with its brief or a request for judicial notice. (Cal. Rules of Court, rule 8.520(g).) As a result, the Court may properly disregard this extra-record evidence. LCC’s quotationsare also inaccurate, to the extent they represent that the Court of Appeal—as opposed to individual justices on the panel—posedquestions to counsel. Regardless, this questioning by one justice hardly sheds light on the issue in this case. Althoughthe justice’s questions indicate confusion about the meaningofthe “clearly erroneous” standard of review, the court’s ultimate decision to apply de novo review was not based on confusion. It was based on the court’s erroneous view that Yamaha 26 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 allowedit to ignore the deferential standard of review because the case ~ involved somelegal issues other than interpretation of the MMBA. (Boling, supra, 10 Cal.App.5th 853, 880.) Therefore, LCC’s reference to questioning in the court below doesnotassist its argument. I. The Board correctly interpreted MMBAsection 3505 to impose a duty to bargain on the City based on the Mayor’s conduct. LCC’s brief offers up various objections to the Board’s interpretation of the MMBAinthis case.* These objections are unavailing. For instance, LCC objects to the Board’s conclusion that the Mayor was an agent of the City, claiming that the Board improperly found the Mayorto have engagedin the legislative act of placing a proposed charter amendmenton the ballot. (LCC Br., p. 12.) As fully explained in PERB’s Reply Brief, however, the Board did not find that the Mayor’s actions werelegislative; the MMBAis not confined to legislative acts; and the doctrine prohibiting delegation of legislative authority is not applicable to this case. (PERB RB,pp.21-24.) LCCalso claims that the Mayor’s actions cannotbeattributed to the City, because “[w]hen a public official misuses public resources, the public official suffers the consequences as an individual,” citing People v. * Like the City and the Ballot Proponents, LCC makes no attempt to defend the Court of Appeal’s mistaken sua sponte reliance on section 3504.5. (See PERB OB,pp. 45-58.) 27 PERB’s Combined Answerto Amicus Curiae Briefs Case No. 8242034 Battin (1978) 77 Cal.App.3d 635 (Battin). (LCC Br. p. 13.) But Battin does not stand for such a categorical rule. It interprets Penal Code section 424’s prohibitions on a public official’s use of public funds for purposes not authorized by law. (Battin, supra, at p. 647.) It does not address whethera public official’s actions can be charged to the public agency as a violation of the MMBA(orany otherstatute, for that matter), and is therefore inapposite. LCCalso raises several objections to PERB’s argumentthat the Board’s decision may be affirmed based on the City’s refusal to bargain | over an alternative measure. None have merit. First, LCC claims that this theory is “not contained in [PERB’s] underlying decision.” (LCC Br., p. 19.) Notso. While this was not the primary theory of the Board’s decision, the City’s ability to negotiate over an alternative measure without impacting the rights of the Ballot Proponents wasin fact discussed by both the ALJ and the Board. (AR:X1:3034 & fn. 23; 3091, fn. 19.) Nevertheless, LCC does not dispute that the Court mayaffirm the Board’s decision even if the particular theory the Board relied on was incorrect. (See PERB OB,pp. 73-74.)” ” LCC also does not dispute that the Court may remandthecaseto the Board for further consideration of this theory, in the eventit is not foreclosed by the Court’s decision. (/. R. Norton, supra, 26 Cal.3d 1, 39.) 28 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 Second, LCC arguesthat there is no authority for PERB’s alternative theory. (LCC Br., p. 19.) Presumably LCC meansthere is no case law endorsing PERB’s specific theory, because there is ample authority for PERB’s argument—beginning with the plain language of the MMBA itself—and LCC does not cite any authority to the contrary. The primary authority supporting the Board’s interpretationis section 3505, which imposes on public agencies and employee organizations a “mutual obligation personally to meet and confer promptly upon request byeither party ....” This section has long been interpreted to allow an employee organization to initiate the meet-and- confer process by demanding to bargain over matters within the scope of representation. (Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services Dist. (1975) 45 Cal.App.3d 116, 118; Los Angeles County Employees Assn., Local 660 v. County ofLos Angeles (1973) 33 Cal.App.3d 1, 5.) An employee organization that does so is necessarily proposing that the public agency take some action concerning the employees’ terms and conditions of employment. There is no reason— and LCC doesnot identify one—whythe proposed action cannotbe the submission of a ballot measure to voters. Although an employee organization mayavail itself of theinitiative process to present an alternative measure (LCC Br., p. 20), this option 29 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 does not foreclose negotiations over a measure sponsoredbythe public agencyitself. “For one thing, as California Supreme Court precedent recognizes, the electoral process and the MMBAcan coexist.” (DiQuisto v. County ofSanta Clara (2010) 181 Cal.App.4th 236, 257, citing Seal Beach, supra, 36 Cal.3d 591, 602.) In fact, the Board has previously held that the MMBArequires negotiations when a public agency respondsto a union-sponsoredinitiative by proposing a ballot measure ofits own. (Santa Clara I, supra, PERB Decision No. 2114-M,pp. 2-3; Santa Clara IT, supra, PERB Decision No. 2120-M,p.3.) LCC next arguesthat “it would makelittle sense to expend public resources bargaining whenthere is no guaranteethe initiative ballot measure will actually pass.” (LCC Br., pp. 19-20.) This argument appears to assumethat the parties would be limited to bargaining over a measure whoseeffect is contingent on passageof the citizens’ initiative. But LCC does not explain why this would be so. Thus, nothing would preventthe parties from negotiating a measure that could succeed and take effect independently. Finally, LCC argues that the bargaining obligation should be limited solely to negotiations over the effects of an initiative after it | passes—at whichpointthe parties “can negotiate over timing, effects, potentially mitigating measures, and other issues.” (LCC Br., p. 20.) 30 PERB’s Combined Answerto Amicus Curiae Briefs Case No. $242034 LCC here attempts to analogize between proposedballot initiatives and proposed changesin state or federal law. This analogyfails. In general, the result of negotiations between a local agency and an employee organization cannot haveany effect on proposedstate or federal legislation.'° The sameis nottrue ofa proposedinitiative affecting the local agency’s employees. A competing measure could affect whether the initiative passes. For example, as the Board explained, a competing measure in this case may have “giv[en] the electorate a more moderate option for addressing pension costs.” (AR:XI:3091, fn. 19.) LCC’s effects bargaining argumentalso appears to assumethat the “effects” the parties could bargain overafter an initiative is approved by the electorate would include “tradeoffs.” (LCC Br., p. 21.) To the extent LCC suggests that an employer and employee organization could negotiate an increase in other forms of compensation to offset a reduction imposed by initiative, that suggestion is disingenuous. The union would havelittle leverage—and the employerlittle incentive—to make such an agreement. The reason an employeris required to bargain before reaching a firm decision to change negotiable subjects is that otherwise a union would be required to try to bargain back to the status quo. (City ofPalo Alto (2017) An exception would be if the proposedlegislation will not supersede existing labor agreements. (See, e.g., § 7522.30, subd. (f).) 3] PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 PERB Decision No. 2388a-M,p. 49.) It is improbable, at best, to believe that an employer that receives a windfall from an enacted citizens’ initiative would simply return that windfall to the employeesin effects bargaining. Thus,limiting the MMBA’s meet-and-confer obligation to effects bargaining after an initiative passes is not a viable solution to the serious problemsraised bycitizens’ initiatives changing terms and conditions of employment. Ill. The Board’s decision does not interfere with the local initiative right. A. The Board did not hold that the MMBAappliesto all citizens’ initiatives affecting terms and conditions of employment. To varying degrees, LCC and PLFbothassert that the Board’s decision is broaderthanit actually is. LCC argues that this case presents the question left open by Seal Beach, supra, 36 Cal.3d 591, 599, fn. 8, which was “whether the meet-and-confer requirement was intended to apply to charter amendments proposed byinitiative.” (See LCC Br., p. 16.) PLF, meanwhile, claims that the Board “introduce[ed] a bureaucratic checkpoint and review process .. . in the form of the MMBA’s‘meet and confer’ process,” which “would give governmentand laborofficials a pre- clearance poweroverthe proposedinitiative or its subject matter.” (PLF Br., p. 15.) Both contentions incorrectly characterize the Board’s decision as holding that the MMBAappliesto all citizens’ initiatives. 32 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 Asexplained in PERB’s Reply Brief (p. 32), the question left open in Seal Beach, supra, 36 Cal.3d 591, is not presented by this case. In fact, the Board squarely rejected the argumentthat this question was implicated: “By not seeking to bargain over Proposition B perse, the [U]nions avoid the question left open in Seal Beach, supra, 36 Cal.3d 591.” (AR:X1:3090-3091; see also AR:X1:3038 [“[T]he ALJ did not conclude that the MMBArequires a public agency to meet and confer regarding every citizen’s initiative’’].) Instead, the Board found that the City violated the MMBAas a result of the Mayor’s policy decision to modify the pension plan for City employees—a mandatorysubject of bargaining—by wayofa citizens’ initiative rather than through the meet-and-confer process. (AR:XI:3079.) The City’s liability for the Mayor’s conduct arose becauseofthe statutory and commonlaw agencyrelationship between the Mayor and the City. (Ibid.) It further explained that “even accepting the City’s characterization of Proposition B as a purely citizens’ initiative, the Unions’ demandsalso contemplated the possibility of bargaining over an alternative or competing measureonthe subject.” (AR:X1:3035.) Thus, the Board’s decision makesclear that its holding is based on and limited to the specific facts of this case: the Mayor’s and other City officials’ involvementin the creation and promotion of Proposition B, the 33 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 Mayor’s role as chief labor negotiator for the City, and his deliberate use of a citizens’ initiative to avoid the meet-and-confer process. Contrary to the arguments of LCC and PLF,the Boarddid not resolve the questionleft open by Seal Beach,andit did not hold that the MMBAappliestoall citizens’ initiatives. B. The right of local initiative can be, and in this caseis, constrained by a statute of statewide concern such as the MMBA. PLF objects to the Board’s use of agency theoriesto find that the City had a duty to bargain because “there is no provision in the Constitution that is concerned with who might have inspired, conceived of, campaigned for, or even underwritten a proposedinitiative.” (PLF Br., p. 11.) PLF’s argument, however,relies on the mistaken premisesthat the initiative right is absolute, and that any limitation on that right in the Constitution or the MMBA mustbe expressly stated. For over half a century, the courts have recognizedthat the Legislature can limit the local initiative power on matters of statewide, as opposedto purely local, concern. For instance, in Mervynne v. Acker (1961) 189 Cal.App.2d 558, 562 (Mervynne), the court stated: “When,in a matter of statewide concern, the state Legislature has specifically delegated a particular authority to the governing board, our courts have uniformly held that the initiative processes do not ordinarily apply.” 34 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 Similarly, in Committee ofSeven Thousand v. Superior Court (1988) 45 Cal.3d 491, 511 (Committee ofSeven Thousand), this Court explained: In matters of statewide concern, the state may if it chooses preemptthe entire field to the exclusion ofall local control. If the state chooses instead to grant some measureoflocal control and autonomy,it has authority to impose procedural restrictions on the exercise of the powergranted, including the authority to bar the exercise ofthe initiative and referendum. As relevantto this case, the process of setting public employees’ terms and conditions of employmentis “obviously a matter of statewide concern”and subject to regulation by the Legislature.. (City ofSeal Beach, supra, 36 Cal.3d at p. 600, fn. 11.) So, too, is the charter amendmentprocess. (Howard Jarvis Taxpayers Assn. v. City ofSan Diego (2004) 120 Cal.App.4th 374, 387.) Indeed, this Court has specifically held that there is no constitutional barrier to a state law prohibiting a local referendum on the adoption of a memorandum of understanding following negotiations pursuant to the MMBA. (Votersfor Responsible Retirementv. Bd. of Supervisors (1994) 8 Cal.4th 765, 783 (Voters for Responsible Retirement).) In doing so, this Court recognized “the problematic nature of the relationship between the MMBAandthe local referendum power,” owing to the “bifurcation of authority” that would occurif the entity 35 PERB’s Combined Answer to Amicus Curiae Briefs Case No. §242034 responsible for overseeing negotiation of the agreement did not have the ultimate authority to approve it. (/d. at p. 782.) As a result, it determined that the restriction on the referendum power was “constitutionally justified” because “the Legislature’s exercise of its preemptive powerto prescribe labor relations procedures in public employmentincludes the powerto exclusively delegate negotiating authority to the boards of supervisors, and therefore the powerto curtail the local right of referendum.” (/d. at p. 784.)'! Thus, it is not necessary that the Constitution expressly limit the right of local initiative, as such a limitation can be foundin statute of statewide importance. And although the MMBAdoesnotexpressly mention citizens’ initiatives, it broadly requires [t]he governing body ofa public agency, or such ... other representatives as may be properly designated by law or by such governing body, [to] meet and confer in good faith regarding wages, hours, and other terms and conditions of '' PLF argues that Votersfor Responsible Retirementis inapplicable here because the referendum poweris “more limited” than the initiative, suggesting that the Legislature has greater authority to restrict the referendum. (PLF Br., p. 19.) However, Votersfor Responsible Retirement refers consistently to the Legislature’s powerto restrict both the initiative and the referendum. (See, e.g., Voters for Responsible Retirement, supra, at p. 779 [“such a distinction does not capture the full extent of the state’s authority to restrict the local initiative and referendum power” (emphasis added)].) The only difference PLFcites is that the referendum maynotaddresstaxation, but this case has nothing to do with taxation. 36 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 employmentwith representatives of such recognized employee organizations ... prior to arriving at a determination of policy or course of action. (§ 3505, emphasis added.) These statutory terms are plainly broad enough to encompass “other representatives” such as the City’s Mayor and chief labor negotiator, and “determination[s] of policy” such as the Mayor’s decision to change the City’s pension system throughaninitiative. Indeed,it is difficult to understate how profoundly it would undermine the MMBAif local public agencies were permitted to pursue this course of action without meeting and conferring. As the Board explained, for the City’s elected officials, and particularly the Mayoras the chief laborrelations official, to use the dual authority of the City Council and the electorate to obtain additional concessions on top of those already surrendered by the Unions on these same subjects raises questions about what incentive the Unions haveto agree to anything. (AR:X1:3038-3039.) For these reasons, the Board’s decision does not, as PLF argues, violate the “clear statement” rule articulated in California Cannabis Coalition v. City of Upland (2017) 3 Cal.Sth 924 (Upland). (See PLF Br., p. 11.) In Upland, this Court announcedthat “[w]ithout an unambiguous indication that a provision’s purpose wasto constrain the initiative power > wewill not construe it to impose suchlimitations.” (/d. at p. 945-946.) 37 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 This rule does not apply here. The Board did not in any wayrestrict the initiative power; Proposition B remains on the books unaltered by the Board’s decision.'” Rather, the Board restricted only the City’s power, acting through the Mayorandothers, to achieve changesto its pension system throughthe initiative process while refusing to engage in the meet- and-confer process. PLFalso claims, as authority against the Board’s conclusion, that there is a “significant tradition” of elected officeholders supporting | initiatives. (PLF Br., p. 20.) As evidence ofthis tradition, PLF cites two instances ofelected officials supporting citizens’ initiatives: Los Angeles County Supervisor Pete Schabarum’s support for a statewide term limits initiative, and Governor Reagan’s support for a statewide tax limitation initiative. (PLF Br., pp. 20-21.) Thus, whatever “tradition” is established by these anecdotes extends only to statewide initiatives, not local ones. Moreover, PLF cites no case where an appellate court considered whether The Board did notorderthe City to rescind Proposition B. The Board concludedthat the authority to do so lies exclusively in the courts, and it therefore crafted a make whole remedythat did not include rescission of Proposition B. (AR:XI:3023-3025.) Specifically, the Board ordered the City to make affected employees whole by paying the difference in value between the defined benefit plan and the 401(k)-style plan enacted by Proposition B. (AR:X1I:3023-3024.) The Board also ordered the City to pay the Unions’ attorneys’ fees if they chose to pursue a court action to rescind Proposition B. (AR:X1:3024-3025.) 38 PERB’s Combined Answerto Amicus Curiae Briefs Case No. S242034 an electedofficial’s support for an initiative had anylegal significance.’ Therefore, the “tradition” evidenced by PLF’s examples does notassist PLF’s argument. C. Negotiating over an alternative ballot measure does not interfere with the initiative right. PLFclaims that requiring bargaining between the Mayorandthe Unionsoverthe subject of pension reform interferes with the rights of the initiative’s proponents by requiring “a process that could have derailed or subverted [the citizens’ initiative] by introducing a competing measure.” (PLF Br., p. 22.) But nothing in the Board’s decision suggests that bargaining mayderail or subvert a citizens’ initiative. The Board held that the policy decision triggering the City’s obligation to negotiate was the Mayor’s decision to pursue pension reform. That decision was reached in November 2010 (AR:XV:3911-3912)—-~well before the initiative even began circulating in April 2011 (AR:XIX:5009-5021). Andthe first of the Unions’ demands to bargain came months before the initiative qualified for the ballot.'* It is certainly possible that bargaining at these earlier stages could have resulted in an agreement that reduced the 'S PLEcites Legislature v. Eu (1991) 54 Cal.3d 492, which concerned the term limits initiative, but Schabarum’s support for that initiative is not even mentionedin that opinion. '* The first demandto bargain was madeon July 15, 2011. (AR:XIX:5109-5110.) The CPRI wasnot placed on the ballot until January 30, 2012. (AR:XX:5184-5185.) 39 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 necessity orpolitical impetus for an initiative.'” Yet the mere fact that an initiative might be unnecessary or less likely to pass after a successful MMBAmeet-and-confer process does not mean such negotiations deny citizens their constitutional rights to propose and sponsorinitiatives. Nor would the presence of an alternative measure on the ballot “subvert”the initiative process. The proponents of a citizens’ initiative have noright to prevent a competing measure from being placed on the sameballot. Conflicting ballot measures may bepresented at the same election, and if both pass, the measure with the mostaffirmative votes prevails. (Howard Jarvis Taxpayers Assn. v. City ofRoseville (2003) 106 Cal.App.4th 1178, 1188.) Therefore, contrary to PLF’s arguments, the Board’s decision does - not interfere with the constitutional right of initiative. IV. Amici’s First Amendment arguments do not provide a basis for affirming the Court of Appeal’s decision. SDTEFurgesthis Court to affirm the Court of Appeal’s decision on an alternate ground: that the Board’s decision violated the Mayor’s First Amendmentrights, regardless of whether he supported Proposition B as Mayororas a private citizen. (SDTEF Br., p. 19.) This is a far more '> For instance, in 2008, the Mayor developed a ballot proposal concerning pension reform, and through negotiations, the Unions and the Mayorreached an agreementthat rendered a ballot measure unnecessary. (AR:XU1:3206-3207, 3212-3213, 3217-3219.) 40 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 expansive argument than the City’s, and the Court should decline to considerit. But even if the Court chooses to address this argument, it fails on its merits. A. The Court may properly decline to consider SDTEF’s argument that the Board’s decision violates the Mayor’s right to speakin his official capacity. The City has argued that the Mayor was merely exercising his right as a citizen to support an initiative on a matter of public importance.’° SDTEP’s arguments go muchfurther: “[T]he First Amendmentequally protects the speech rights of elected officials and public citizens. It is therefore irrelevant whether Mayor Sanders wasspeaking as any other citizen or as the mayor; either way, the First Amendmentprotectedhis right to express his views....” (SDTEF Br., p. 19.)"” '® See, e.g., City Ans., p. 41 [“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 express their views on ‘matters of public concern’”]; id. at p. 42 [“The Mayorandindividual Councilmembers havea right to weigh in on this issue, just as any other citizen”; id. at p. 45 [“Accordingly, the Mayor, like any other public official, was andis “free to join a citizens’ group supporting thelegislative goals expressed in [a] purposed[sic] initiative; as individuals they [have] the right to advocate qualification and passage ofthe initiative’”]. '7 LCC makes a First Amendment argument in cursory fashion, without stating whether it agrees with the City that the Mayor was speaking as a private citizen. (LCC Br., pp. 11-12.) To the extent LCC adopts the City’s position, the Board has already respondedto that argument on pages 38 through 42 of its Reply Brief. To the extent LCC intends to make the same argument as SDTEF,the Board’s responseto SDTEFherein responds to LCC as well. 41 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 By going beyondthe limited First Amendmentissue raised by the City and briefed by the parties, SDTEFviolates the rule that amici “must take the case as they find it” and not “interject[] new issues.” (California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264, 1275.) This rule “promotes judicial efficiency and an orderly appellate process.” (People v. Hannon (2016) 5 Cal.App.5th 94, 105.) Withoutit, “amic[i] curiae, rather than the parties, themselves, would control the issues litigated.” (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of America (2001) 90 Cal.App.4th 1151, 1161, fn. 6.) SDTEFclaimsit is not really expanding the issues before the Court, but merely “elaborat[ing] on why” the Board’s decision “violates the First Amendment.” (SDTEFBr., p. 47, fn. 4.) SDTEF is being too modest. It is attempting to establish that local elected executive officials have a nearly unqualified First Amendmentright to use the resources of their public offices to evade the requirements ofstate law. SDTEFalso preemptively invokes Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 503 (Lavie) for the proposition that the Court may consider a pure “question of law based on undisputed facts, and [which] involves important questions of public policy,” even though raised only by an amicus. (SDTEFBr., p. 47, fn. 4.) This Court, 42 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 however, has never endorsed such a broad exception to the rule against amici expanding the issues beforeit. The Court of Appeal in Lavie relied on Fisher v. City of Berkeley (1984) 37 Cal.3d 644 (Fisher). In that case, this Court decided whatit called “extremely significant issues of public policy and public interest” that were initially raised by amici. (/d. at p. 655, fn. 3, emphasis added.) This is a higher standard than Lavie’s “important questions of public policy,” which makes sense. After this Court grants review, any potentially dispositive issue raised by an amicusis likely to present an important question of public policy. (Cf. Cal. Rules of Ct., rule 8.500(b)(1).) Lavie’s lower standard would place preciouslittle constraint on the types of issues amici could present. Significantly, Lavie stands alone in citing Fisher for the broad proposition SDTEFrelies on. Andonly a single case hasin turn cited Lavie for that proposition, although expressing doubt about its soundness. (Sacramento County Employees’ Retirement System v. Superior Court (2011) 195 Cal.App.4th 440, 473 [“It has also been suggestedthat, by extension of the rule that a party can raise a purely legal issue for the first time on appeal, an appellate court may exercise its discretion to permit amicus curiae to raise new issues where the issues touch on public policy and the facts are undisputed” (emphasisin original)].) More often, 43 PERB’s Combined Answer to Amicus Curiae Briefs Case No. §242034 it has been stated that there are only two, much narrower exceptions recognizedby this Court—neither of which apply here: “The amicus curiae may raise an issue that will support affirmance and the amicus curiae may assert jurisdictional questions that cannot be waived even if not raised by the parties.” (American Indian Model Schools v. Oakland Unified School District (2014) 227 Cal.App.4th 258, 275; see also Costa v. Workers’ Comp. Appeals Bd. (1998) 65 Cal.App.4th 1177, 1188, citing E. L. White, Inc. v. City ofHuntington Beach (1978) 21 Cal.3d 497, 510- 511.) SDTEFdoesnot argue that the First Amendment right of Mayor Sanders to speak as part of his official duties is the type of “extremely significant issue of public policy and public interest” warranting this Court’s consideration. (Fisher, supra, 37 Cal.3d 644, 655, fn. 3.) Ifit were of such extreme significance, one might have expected either the City or the Ballot Proponents to haveraisedit in their ownbriefing, using SDTEF’s amicus brief to the Court of Appeal as a roadmap. They did not. Therefore, the Court should decline to address the expansiveFirst Amendmentissue raised by SDTEF. B. Even if this Court decides to consider them, SDTEF’s arguments fail on their merits. SDTEF’s claim that the Board’s decision violates the First Amendmentregardless of whether the Mayor wasacting in hisofficial or 44 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 his private capacity fails for at least two reasons. First, the Board did not punish the Mayororrestrict his speech in any manner. Liability for violations of the MMBAlies with the City, not the Mayor. The Board’s decision thus decision regulates the Mayoronly indirectly, as an agent of the City. Second, even assuming the Board’s decision could be viewed as somehowrestricting the Mayor’s speech, that speech was not protected to the degree SDTEFclaims. The cases cited by SDTEF acknowledge that the speech of executive officials in their official capacities may be restricted, which is consistent with settled law on speech by government officials and entities. 1. The Board did not punish the Mayororrestrain his speech. Much of SDTEF’sbrief misses the point, becauseit fails to confront PERB’s primary argumentthat the Board’s decision regulates the City’s economic conduct as an employer and “neither punishes the Mayor for his activities nor requires him to meet and confer with the Unions over his activities as a private citizen.” (PERB RB,pp. 35-36.) SDTEF dismisses this entire argumentby asserting “the Board cannotfairly contend that its decision regulates only the City’ (SDTEFBr., p. 54), but this is precisely whatthe decision does and no more. The City was the respondent before PERB andthe City was ordered to remedy the unfair practices found by the Board. (AR:XI:3040-3041.) The Board’s decision 45 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S$242034 assigns no individualliability to the Mayor, either as a private citizen or in his official capacity, and the Board’s remedial order directs the Mayorto take no action. Thus, the Board’s decision in this case regulates the City directly, and the Mayoronly indirectly, if at all. This is insufficient to establish a violation of the Mayor’s First Amendmentrights. The reason the Board did not restrain or punish the Mayoris that the Mayoris not personally subject to the MMBA. The City is. Although an individual mayact as an agent of a public agency—and the Board here correctly found that the Mayor acted the City’s agent—only the public agency is responsible for complying with the MMBA. (§ 3506.5, subd. _ (c) [prohibiting “[a] public agency” from refusing or failing “to meet and negotiate in good faith with a recognized employee organization”]; Cal. Code Regs., tit. 8, §§ 32602-32604 [specifying unfair practices by public agencies and by employee organizations, but not by individuals].) In fact, the administrative record reflects the City’s awareness—well beforethis case arose—ofits responsibility for the actions of its agents. City Attorney Goldsmith advised the City Council in a memorandum: “In determining whetheror not the City has committed an unfair labor practice in violation of the MMBA, PERB will considerthe actions of all officials and representatives acting on behalf of the City.” (AR:XVIII:4730; emphasis added.) 46 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S§242034 In its arguments that the Board’s decision restricts the Mayor’s speech, SDTEF bemoansthe “significant time and energy” the Mayor must devote to the meet-and-confer process. (SDTEF Br., p. 49.) But the Board did not impose these requirements on the Mayor, and neither did the MMBA. Theyare imposed by the City Charter, which designates the Mayoras the City’s chief labor negotiator.'® As a result, SDTEFtries without successto distinguish National Labor Relations Board v. Virginia Electric & Power Co. (1941) 314 U.S. 469. As SDTEFnotes, that case held that “conduct, though evidenced in part by speech, may amount in connection with other circumstancesto coercion.” (/d. at p. 477.) The “speech” for which SDTEFclaimsFirst Amendmentprotection in this case was conduct that amountedto a refusal to bargain with the Unions. Althoughthis is not coercionin strict sense, it is certainly conduct, not speech. The Board’s decision does not prevent the Mayor from expressing his views on pension reform in general or on '® SDTEFalso falsely suggests that the Board imposed on the Mayora personalobligation to meet with the Unions. (SDTEFBr., p. 48.) This suggestion misconstrues the Board’s decision and the MMBA. As the Board explained in its Opening Brief, the Mayoras an “other representative” of the City, was permitted by the plain languageof section 3505 to designate a representative to meet personally with the representatives of the Unions. (PERB OB,pp. 50-51.) There is, in fact, no dispute that the Mayor did not physically sit at the bargaining table with the Unions,and there is no claim that he was required to do so. (See AR:XIII:3350.) 47 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 the CPRIin particular.’ It prevents the City from refusing to bargain with the Unions. SDTEFfurther claims that the Mayor“was barred from publicly sharing his views on pension reform until he went through the meet-and- confer process.” (SDTEFBr., p. 48.) This argumentis essentially speculative. Since the Mayor never negotiated with the Unions, but simply announceda course of action and pursuedit with the resources of his City office, SDTEF is assuming that the Mayor could not have shared his views on pension reform before meeting and conferring. Nothing in the Board’s decision supports that assumption. SDTEFalso implies that the Board imposed upon the Mayor 66esomething akin to “‘criminal penalties or other remedies. . . in its sovereign capacity.”” (SDTEFBr., p. 41, quoting Ex parte Perry (Tex. App. 2015) 471 S.W.3d 63, affd. in part, revd. in part (Tex. Ct. Crim. App. 2016) 483 S.W.3d 884.) This is plainly not true; again, the Mayor has not been subjected to anything remotely approachinga direct sanction '? Notably, SDTEF does not challenge PERB’s reliance onthis Court’s statement in Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083, 1103 (Ralphs) that “statutory law ... may single out labor-related speech for particular protection or regulation, in the context of a statutory system of economic regulation of labor relations, without violating the federal Constitution.” 48 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 of any kind. As noted, there is no question that the only party held responsible for violating the MMBAwastheCity. In short, SDTEF can point to nothing in the Board’s decision prohibiting the Mayor from speaking, or penalizing him for having done so. Instead, it confuses the issue by selectively quoting from the Board’s decision, arguing that “the Board held that the City violated that duty [to meet and confer]when Mayor Sanders ‘launch[ed] a pension reform initiative campaign, raised moneyin support of the campaign, helpedcraft the language and content of the initiative, and gave his weighty endorsementto it.” (SDTEFBr., p. 17, quoting AR:XI:3096.) This quotation omits, however,the critical detail that follows within the same sentence: “all while denying the [U]nions an opportunity to meet and confer over his policy determination in the form ofa ballot proposal.” (AR:X1:3096.) Thus, the Board’s finding did notrest solely on the Mayor’s speech in support of Proposition B, but on that support combined with other affirmative actions and the refusal to bargain with the Unions. In other words,the City’s liability in this case stems from conductthatis indisputably prohibited by the MMBA.(See § 3506.5, subd.(c) [“A public agency shall not ... [r]efuse or fail to meet and negotiate in good faith with a recognized employee organization”J.) 49 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 Put differently, even if the Mayor had the type of First Amendment right SDTEFclaims, there is no reason—and SDTEFdoesnot offer one— whythis would excuse the City from satisfying its obligations under the MMBA.Regardless of who sponsored or supported Proposition B, nothing prevented the City from negotiating over an alternative or competing measure. (AR:X1:3034 & fn. 23.) As noted, conflicting ballot measures may be presented at the same election. (Howard Jarvis Taxpayers Assn. v. City ofRoseville, supra, 106 Cal.App.4th 1178, 1188.) Nevertheless, the City was not required to agree to an alternative ballot measure, so long asit participated in the meet-and-confer process in good faith. (Seal Beach, supra, 36 Cal.3d 591, 601 [“Although [section 3505] encourages binding agreements resulting from the parties’ bargaining,the governing body of the agency—here the city council—retains the ultimate powerto refuse an agreement and to make its own decision”|; Placentia Fire Fighters v. City ofPlacentia (1976) 57 Cal.App.3d 9, 23.) The City wasnotfree, however, to refuse the Unions’ requests to bargain overthe subject. (Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services Dist., supra, 45 Cal.App.3d 116, 118.) Moreover, the City Council was not required to present Proposition B to the voters whenit did. (Jeffrey v. Super. Ct. (2002) 102 Cal.App.4th 1, 4 [Elections Code section 9255, which governs the placement of charter 50 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 initiatives on the ballot, “enumerates minimum timelimits, but no maximumtime limits”}.)"° SDTEF does not explain how either negotiations over an alternative measure or a delay in submitting Proposition B to the voters, pending those negotiations, would have restricted the Mayor’s First Amendmentrights, assuming he had them in this instance. Because what the Board found unlawful was the City’s refusal to bargain with the Unions, and not the Mayor’s speech, the Board’s decision regulates the City directly, and the Mayoronly indirectly as the City’s designated representative for the meet-and-confer process. Thus, SDTEF’s First Amendment argumentfails, regardless of whether the Mayorhad a First Amendmentright to speak in his official capacity. ”° Specifically, charter initiatives must be submitted “at an established statewide general, statewide primary, or regularly scheduled municipal election . . . occurring not less than 88 days after the date of the order of election.” (Elec. Code, § 9255, subd. (c).) Under former Elections Code section 9214, other local initiatives, if not adopted by governing body, had to be submitted at a special election “immediately.” (Stats. 2000, ch. 55, § 17.) Now, however, a qualifying initiative must be presented at the next regular election, unless the governing body decides to call a special election. (Elec. Code, § 1405.) 51 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 2. The Mayordid not have a First Amendmentright to use City staff and City resources to support a citizens’ initiative. Even if the Board’s decision could be viewedas regulating the Mayor’s speech, SDTEFfails to establish that the Mayorhad a nearly absolute right to speak in his official capacity. SDTEFclaimsthat“the First Amendmentprohibits the governmentfrom silencing elected officials on matters of public concern” (SDTEFBr., p. 26), whether or not those officials speak in their official or private capacities (id. at p. 19). But the cases relied on by SDTEF recognizethis broad right for elected legislative officials. These cases do not apply to the Mayor, whois, under the City’s strong mayor form of government, the City’s chief executive officer and lead labor negotiator. (AR:XVII:4492-4493; XIII:3349.) The _ speech ofelected executive officials like the Mayoris subject to greater restraint, because they cannot shirk their official duties by invoking the First Amendment. Moreover, none of the cases cited by SDTEFconflict with the settled proposition that an elected official has no First Amendmentright to engagein political activity using public resources. a. The cases cited by SDTEF do not support a broad free speech right for executive officials acting in their official capacities. SDTEFcites more than a dozen cases in support ofits claim that elected officials have broad First Amendmentrights regardless of whether they speak in their official or private capacities. But only one of these 52 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 cases—a federal district judge’s ruling on a preliminary injunction—holds that elected executive officials have a right of free speech in the course of their official duties. The remaining caseseither do not considerthe rights of executive officials at all, or they distinguish between speech in the individual’s private and official capacities. SDTEF’s faulty analysis begins with Wood v. Georgia (1962) 370 U.S. 375 (Wood), a case discussed in the City’s Answer Brief and PERB’s Reply. Wood considered whether an elected sheriff could be held in contemptfor his public statements regarding a matter pending before a grand jury, and addressed the argumentthat an elected sheriff's “freedom of expression must be moreseverely curtailed than that of the average citizen.” (Jd. at p. 393.) The Court stated: Underthe circumstancesofthis case, this argument mustbe rejected. First, although we do notrely on the point exclusively, we noted at the outset ofthis opinion that there was no finding bythetrial court that the petitioner issued the statements in his capacity as sheriff; in fact, the only evidencein the record on this pointis the petitioner’s allegation in his response... that the statements were distributed by petitioner as a private citizen. (Wood, supra, 370 U.S. 375, 393, emphasis added.) The court added that there was no indication that the state courts foundit significant that he 53 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 was a Sheriff. (/d. at p. 394.) Thus, Woodlogically distinguishes between an elected executive official’s private and official speech. SDTEFstrains credulity by arguing that the “Supreme Court put little weight—if any” on the lack of a finding that the sheriff spoke in his official capacity. (SDTEFBr., pp. 24-25, fn. 1.) In order to dismiss that finding, which wasthe principal groundfor the court’s conclusion, SDTEFdescribes the court’s following point as an “express[]” holding: “However, assuming that the Court of Appeals did consider to be significant the fact that petitioner was a sheriff, we do not believe this fact provides any basis for curtailing his right of free speech.” (Wood, supra, 370 U.S. 370, 374, emphasis added.) SDTEFalso does not explain how its view is consistent with the court’s next point—that “[t]here [was] no evidence that the publications interfered with the performanceofhis duties as sheriff or with his duties, if any he had, in connection with the grand jury’s investigation.” (/bid.) In sum, there is no way to read Wood as endorsing an elected executive official’s unfettered right to speak in his official capacity. Therefore, Wood does not defeat the Board’s argument that the Mayor’s conduct—asthe conduct of the City—was subject to regulation, becauseit was undertaken notas a private citizen, but in his official capacity as the City’s strong mayor and chieflabor relations representative. 54 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 After overstating the holding of Wood, SDTEFturnsto an inapposite case: Bond v. Floyd (1966) 385 U.S. 116. There, the court determinedthat “[t]he manifest function of the First Amendmentina representative government requires that /egislators be given the widest latitude to express their views on issues ofpolicy.” (/d. at pp. 135-136; emphasis added.) In response to the obvious objection that Bond concerns the speech of legislators, not executive officials like the Mayor, SDTEFarguesthat PERB “has not cited a single case suggesting that the First Amendment singles out legislators for such special treatment.” (SDTEFBr., p. 26, fn. 2.) But PERB hascited the only two federal appellate courts to consider whether executive officials have First Amendmentrights to speak in their official capacities. (PERB RB, p. 40.) Both courts answered that question “no,” relying on Garcetti v. Ceballos (2006) 547 U.S. 410, 421, which held that “when public employees make statements pursuantto their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” (Parks v. City ofHorseshoe Bend (8th Cir. 2007) 480 F.3d 837, 840, fn. 4 (Parks) [elected city treasurer]; Miller v. Davis (6th Cir., Aug. 26, 2015, No. 15-5880) 2015 WL10692640,at *1 [elected county clerk].) 55 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 To arguethat legislators are not “singled out,’ SDTEF cites three cases: (1) Wood, supra, 370 U.S. 375,(2) Jenevein v. Willing (Sth Cir. 2007) 493 F.3d 551 (Jenevein), and (3) City ofEl Cenizo v. State (W.D. Tex. Aug. 30, 2017, No. SA-17-CV-404-OLG) 2017 WL 3763098 (City ofEl Cenizo), stayed in relevant part pending appeal (Sth Cir., Sept. 25, 2017, No. 17-50762) 2017 WL 4250186, at *2.7! Thesecasesare not “I All of the remaining cases cited by SDTEF involveelected legislative officials and are therefore inapposite: Werkheiser v. Pocono Twp. (3d Cir. 2015) 780 F.3d 172, 179-180 (Werkheiser) [memberof township board of supervisors]; Rangra v. Brown (Sth Cir. 2009) 566 F.3d 515, 526, vacated (Sth Cir. 2009) 584 F.3d 206 (en banc) [city council members]; Velez v. Levy (2d Cir. 2005) 401 F.3d 75, 98 [school board member]; Nordstrom v. Town ofStettin (W.D. Wis. May 15, 2017, No. 16- CV-616-JDP) 2017 WL 2116718, at *3 [town supervisor]; Hoffman v. Dewitt Cty. (C.D.Ill. Mar. 31, 2016, No. 15-3026) 2016 WL 1273163, at *2 [county board member]; Holloway v. Clackamas River Water (D. Or. Dec. 9, 2014, No. 3:13-CV-01787-AC) 2014 WL 6998084,at *1 [board of commissioners member]; Willson v. Yerke (M.D. Pa. Dec. 23, 2013, No. 3:10-CV-1376) 2013 WL 6835405, at *1 [member of township board of supervisors]; Carson v. Vernon Twp. (D.N.J. July 21, 2010, No. 09-6126 (DRD)) 2010 WL 2985849, at *1 [township council member]; Pistoresiv. Madera Irr. Dist. (E.D. Cal. Feb. 3, 2009, No. CV-F-08-843-LJO-DLB) 2009 WL 256755, at *1 [memberofspecial district governing board]; Conservation Com. ofTown of Westport v. Beaulieu (D. Mass. Sept. 18, 2008, No. CIV.A. 07-11087-RGS) 2008 WL 4372761, at *1 [members of conservation commission]; Hartman v, Register (S.D. Ohio Mar. 26, 2007, No. 1:06-CV-33) 2007 WL 915193, at *1 [member of township board of trustees]; Hogan v. Twp. ofHaddon (D.N.J. Dec. 1, 2006, No. CIV. 04-2036 (JBS)) 2006 WL 3490353,at *1 (Hogan) [township commissioner]. As SDTEF admits, other district courts have reached the opposite conclusion (SDTEFBr., p. 38, fn. 3), but this split of authority on the rights of legislators is tangential to this case. 56 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 persuasive that non-legislators have unfettered rights to speak in their official capacity. Asexplained above, Wood, supra, 370 U.S. 375, does not support SDTEF’s argument. And while Jenevein, supra, 493 F.3d 551, decided that Garcetti was not the frameworkfor analyzing the speech rights of an elected judge, it ultimately concluded that a judge could be censured for his “use of the trappings ofjudicial office to boost his message, his decision to hold a press conferencein his courtroom, andparticularly stepping out from behind the bench, while wearing his judicial robe, to address the cameras.” (Jenevein, supra, 493 F.3d 551, 560.) Thus, this case hardly demonstrates the sweeping speech right SDTEFclaims.” Finally, City ofEl Cenizo involved a motion for preliminary injunction against a Texaslaw restricting the speech of local government | officials. The state defended the law by arguing that “the First Amendmentshould not apply to governmentofficials acting in their *° SDTEFalsofails to note that the Seventh Circuit has taken a morerestrictive view of the speech rights of elected judges. In Siefert v. Alexander(7th Cir. 2010) 608 F.3d 974, 984-985, the Seventh Circuit rejected Jenevein’s analogy betweenelected judges and elected legislators, noting the state’s strong interest in regulating the speech of elected judges to protect the integrity of the judicial system. Accordingly, it determined—trelying on Garcetti and its precursors—that the appropriate test was to weigh the state’s interest “‘against the [judge’s] interest in speaking.” (/d. at p. 985; see also Bauer v. Shepard (7th Cir. 2010) 620 F.3d 704, 711.) 57 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S$242034 official capacity,” citing Garcetti. The court rejected that argument, because it found Garcetti only applicable to discipline imposed by a public employer on its own employees. (City ofEl Cenizo, supra, 2017 © WL3763098, at *18.) But, as explained in section IV.B.2.b., post, Garcetti is not so limited. Asa result, the cases cited by SDTEF do not advance the argument that the Mayorin this case had an unfettered right to speak in his official capacity. SDTEFalso does not grapple with the startling implicationsofits argument. As PERB arguedin its Reply Brief, legislators and executive officials serve different governmental functions. While legislators represent their constituents in making law, executive officials must uphold and enforce the law; they are not allowed to disregard laws they disagree with or find inconvenient. (See Lockyer v. City and County ofSan Francisco (2004) 33 Cal.4th 1055, 1082.) Surely, for instance, the City could not avoid its bargaining obligations under the MMBAbyelecting as its Mayor and chief labor negotiator an individual who refuses to engage in the meet-and-confer process because of a philosophical objection to that process. The result should be no different in this case, where Mayor Sanders found the meet-and-confer process an impedimentto the goals of his administration. 58 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 Instead of addressing the fundamental! problems of empowering executive Officials to ignore the law based on the First Amendment, SDTEFattempts to buttress its argument with out-of-context quotations. For instance,its brief at page 26 omits the first clause of the following sentence from Keller v. State Bar ofCalifornia (1990) 496 U.S. 1, to make that case appear relevant here: If every citizen were to have a rightto insist that no one paid by public funds express a view with which hedisagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we knowit radically transformed. (Id. at pp. 12-13.) Needless to say, PERBis not a citizen objecting to the Mayor’s speechin this case;it is the expert administrative agency designated by the Legislature to interpret and administer the MMBA’s statutory provisions. SDTEFalso quotes Waters v. Churchill (1994) 511 U.S. 661, 674 for the proposition that “government employees ‘are often in the best position to know whatails the agencies for which they work,’ and thus ‘public debate may gain muchfrom their informed opinions.’” (SDTEF Br., p. 27.) SDTEFarguesthat the “same goes for elected officials.” ([bid.) This argument does not follow. Government employees, as SDTEFrecognizes, do not have a right to speak within the scope of their 59 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 official duties. (SDTEF Br., p. 29, citing Garcetti, supra, 547 U.S. 410.) Thus, knowledge of the workings of governmentalone doesnotjustify protecting the speech of elected executive officials in their official capacity.”° b. The fact that the Mayor’s actions were taken within the scope ofhis official duties is relevant even though the Board wasnot the Mayor’s employer. SDTEFalso argues that Garcetti’s rule that speech undertaken in the course of an employee’s official duties is not protected is inapplicable _ when the governmentacts as a “sovereign,” as the Board did here, rather than as an employer. (SDTEFBr., pp. 39-40.) But Garcetti is not so limited. Although SDTEFis correct that Garcetti discussed “employer discipline” and “managerial discipline,” this does not mean that Garcetti actually forecloses other forms of regulation where the governmentis not the direct employer. In Garcetti, the Supreme Court stated unequivocally: “We hold that when public employees make statements pursuantto their official duties, the employees are not speakingas citizens for First Amendment purposes, and the Constitution does not insulate their *3 For the same reasons, SDTEF’s reliance on City ofSan Diegov. Roe (2004) 543 U.S. 77 1s also unavailing. (SDTEF Br., p. 28.) That case did not involve the speech of an elected official. 60 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 communications from employerdiscipline.” (Garcetti, supra, 547 U.S. 410, 421, emphasis added.) Thus, Garcetti does not say that other forms of regulation aside from employerdiscipline are impermissible. Additionally, it has been suggested, for instance, that the “rationale” of Garcetti’s precursors “could be extended to allow a general speech restriction onsitting judges.” (Republican Party ofMinnesota v. White (2002) 536 U.S. 765, 796 (conc. opn. of Kennedy,J.), citing Pickering v. BoardofEd. of Tp. High School Dist. 205, Will County, Illinois (1968) | 391 U.S. 563 (Pickering) and Connick v. Myers (1983) 461 U.S. 138 (Connick).) Similarly, the Seventh Circuit has recognizedthat: while Garcetti, Connick, [U.S. Civil Service Commission v. National Assn. ofLetter Carriers, AFL-CIO (1973) 413 U.S. 548], and Pickering all concern public employees, the ability of the government to regulate the speech of the employeesin those casesis not solely dependent on its authority as an employer. ... The rationale behind government restriction identified in Pickering, therefore,is related both to the government’s poweras an employerandits duty to promotethe efficiency of the public services it performs. (Siefert v. Alexander, supra, 608 F.3d 974, 985.) It is true that Ex parte Perry, supra, 471 S.W.3d 63, 109, cited by SDTEF,declined to extend the Garcetti exception to a criminalstatute applied to a state governor. But the MMBAis not a criminal statute. Nor is it a direct regulation of the speech of any governmentofficials or 61 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 employees, none of whom are subject to the MMBAasindividuals. Thus, if the MMBAregulates their speechat all, it is only indirectly when those individuals act as agents of the public entity they serve. Therefore, Ex parte Perry does not assist SDTEF in demonstrating that the Board has less interest in regulating the Mayor’s conduct on behalf of the City in this case. c. SDTEFfails to demonstrate that the Mayor had a First Amendmentright to use the City’s website or e-mail system, his State of the City address to the City Council, his City-paid staff, and other City resources to promote Proposition B. In addition to overstating the general nature of the Mayor’sFirst Amendmentrights, SDTEF’s argumentalso overlooks that much of what it claims wasprotected “speech” by the Mayor involved the use of City resources. In so doing, SDTEFignoresthat its argumentis inconsistent with settled law on the speech of governmentofficials and entities. As PERBargued in its Respondent’s Brief, state law does not protect political activity by governmentofficials and employees during working hours and using public resources. (§§ 3207, 3209; Stansonv. Mott (1976) 17 Cal.3d 206, 213, 223-224, 227.) This propositionis consistent with the “government speech” doctrine, which recognizesthat individuals do not have a First Amendmentright to use government- controlled means of communication. Where the government“is speaking 62 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 on its own behalf” rather than “providing a forum for private speech,” free speech principles do not apply. (Pleasant Grove City, Utah v. Summum (2009) 555 U.S. 460, 470 (Summum).)* This is because “[t}he Free Speech Clauserestricts government regulation of private speech; it does not regulate governmentspeech.” (/d. at p. 467.) Limits on government speech are instead supplied by the First Amendment’s Establishment Clause; by “law, regulation, or practice”restricting “[t]he involvement of public officials in advocacy”; and by the political process. (/d. at p. 468.)”° SDTEF does not dispute that political activity by government officials and employees undertaken during working hours andusing public resources is unprotected by state law, and can be validly ** As Summum explains, there are three types of forumsfor private speech:(1) traditional public forums; (2) designated public forums; and (3) nonpublic forums. Speechrestrictions in traditional and designated public forumsare subjectto strict scrutiny, while in nonpublic forums they must only be reasonable and viewpoint-neutral. (/d. at p. 470.) °° Under the governmentspeech doctrine,for instance, individuals do not have a right to have the government promote their messages through: monuments in public parks (id. at p. 473); specialty license plates (Walker v. Texas Div., Sons ofConfederate Veterans, Inc. (2015) 135 S.Ct. 2239, 2246); murals in government buildings (Newton v. LePage (1st Cir. 2012) 700 F.3d 595, 602-603); government websites (Sutliffe v. Epping School Dist. (1st Cir. 2009) 584 F.3d 314, 334); or pamphlets displayed in public parks (//linois Dunesland Preservation Society v. Illinois Dept. ofNatural Resources (7th Cir. 2009) 584 F.3d 719, 725- 726). 63 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 restricted.”° Yet SDTEFclaims that the Mayorhasa nearly unrestrained First Amendmentright to engage in “speech”in his official capacity. It is important to consider this claim in the context of the factual record in this case. It means, according to SDTEF,that the Mayor had a First Amendmentright to do the following: e determine, along with his City-paid staff, a course of action to solve the City’s budget problems (AR:XIV:3653-3654, 3667-3668); e use City-paid staff to issue press releases, City website postings, and mass e-mail messages to promote the initiative (AR:XVIII: 4742-4743, 4745-4747, 4816; XXII:5747-5749); e conduct press conferences, supported by his City-paidstaff, to promote the initiative (AR:XIII:3312-3313; XV:3948- 3949; XIII:3419)°’; e discuss the initiative in his State of the City address before the City Council—a speechthat is reserved exclusively to °° Similar restrictions have been upheld by the U.S. Supreme Court. (Broadrick v. Oklahoma (1973) 413 U.S. 601.) *” The Board notedthat, at least with respect to one ofthese press conferences, there was no evidence that the Mayor communicatedto the press or the public that he was speakingin his private capacity. (AR:X1:3068.) 64 PERB’s Combined Answer to Amicus Curiae Briefs Case No. §242034 the Mayor under the City Charter (AR:XIX:4832; XVII:4494): e have City-paid staff negotiate the content oftheinitiative (AR:XIII:3401-3402; XIV:3570-3576, 3676-3679; XV:3812-3814), and review and approveits language (AR:XIV:3585-3588, 3680-3682). SDTEF does not attempt to argue that such a sweepingFirst Amendmentrightis consistent with state law prohibitions on using government time and resources to promote ballot initiatives. Nor does SDTEFexplain how those resources constitute a government-provided “forum”for private citizens to speak regarding matters of public concern. Instead, it claims that under the Board’s decision, “al/ residents of San Diego could freely advocate for or against the citizens’ initiative on pension reform, except for the Mayor.” (SDTEFBr., p. 33, emphasis in original.) But, as PERB explainedin its Reply Brief, “[t]here is no evidencein the record thatprivate citizens have access to City websites and e-mail accounts and City-paid staff to promotetheir efforts, or Charter-mandated speeches to the City Council.” (PERB RB,p. 42.) Therefore, SDTEF’s argumentthat the Mayor wasrestricted from exercising the samerights as other residents of San Diego must be rejected. 65 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 3. Even if the Board’s decision implicates the Mayor’s First Amendmentrights, it should be upheld. SDTEFclaimsthatstrict scrutiny should apply because the Board’s decision imposes a viewpoint-basedpriorrestraint. (SDTEFBr., p. 42.) But the Board’s decision,like the MMBAitself, is justified without reference to the content of the Mayor’s speech, and therefore qualifies as content-neutral under this Court’s cases. Andits after-the-fact determination that the Mayor’s conducttriggered a duty by the City to bargain with the Unionsis not a prior restraint. For these reasons,strict scrutiny does not apply. But evenif it did, the Board’s decision would satisfy this level of scrutiny due to the substantial interest in enforcing the MMBA’s meet-and-confer obligation uniformly acrossthe State. a. Becauseit is aimed at the City’s economic conduct, not the Mayor’s speech,the Board’s decision is content- and viewpoint- neutral, and therefore does not trigger heightened scrutiny. As SDTEFnotes, the MMBA concerns “wages, hours, and other terms and conditions of employment.” (SDTEFBr., p. 50,citing § 3505.) Butthe fact that the MMBAis directed at certain subjects does not meanit is a content-basedrestriction on speech. As discussed below,underthis Court’s own First Amendmentprecedents, the MMBAis content-neutral. For a statute or regulation to be considered content-neutral, “literal or absolute content neutrality” is not required. (Ralphs, supra, 55 Cal.4th 66 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 1083, 1102, internal quotation marks omitted.) The regulation must only “be justified by legitimate concernsthat are unrelated to any disagreement with the message conveyed by the speech.” (/bid., internal quotation marks omitted.) Applying this standard, this Court has concludedthat state laws giving employees and labor unionsspecial rights to engage in speech related to labor disputes are content neutral because theyare justified by, amongotherthings, “the state’s interest in promoting collective bargaining to resolve labor disputes,” rather than any disagreement with the message conveyed by speech on other subjects not protected by the statutes. (/bid.) Here, too, the MMBA’s prohibitions, as interpreted by the Board, are not justified by any disagreement with the Mayor’s speech in favor of Proposition B, or pension reform in general. The MMBAisjustified by the state’s interest in “promot[ing] full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations.” (§ 3500, subd. (a).) It is well settled that the MMBA’s meet-and-confer process is a procedural requirement; the MMBAdoesnot imposeor dictate substantive terms and conditions of employment. (County ofRiverside v. Super. Ct. (2003) 30 Cal.4th 278, 289,citing Seal Beach, supra, 36 Cal.3d 591, 600-601, fn. 11; see also County of 67 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 Riverside v. Public Employment Relations Bd. (2016) 246 Cal.App.4th 20, 29-30 [rejecting constitutional challenge to the MMBA’sadvisory factfinding process because “[t]he public agency retains the ultimate powerto refuse an agreement and makeits own decisions”].) In keeping with these principles, the Board has recognized that it may not judge or prescribe the substantive terms of the parties’ agreements or proposals. (City ofMontebello (2016) PERB Decision No. 2491-M,p. 9; City of Pasadena (2014) PERB OrderNo. Ad-406-M,pp. 13-14, citing H.K. Porter Co. v. National Labor Relations Bd. (1970) 397 U.S. 99, 106.) Thus, the MMBAneither favors nor opposes pension reform. What the MMBAdoes, among otherthings, is proscribe conduct that constitutes a failure or refusal to meet and confer in goodfaith. (§§ 3505, 3506.5, subd. (c).) The theory under which the Board found a violation in this case, a unilateral change to terms and conditions of employment, is a particularly harmful form ofrefusalto bargain dueto its destabilizing effect on laborrelations. (County ofSanta Clara (2013) PERB Decision No. 2321-M,pp. 23.) Such a changeis unlawful because it interferes with the bilateral process of collective bargaining, regardless of whether the new terms and conditions of employment are moreorless favorable to employees. (See, e.g., National Labor Relations Bad. v. Katz (1962) 369 U.S. 736, 743; Ruline Nursery Co. v. Agricultural Labor . 68 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S§242034 Relations Bd. (1985) 169 Cal.App.3d 247, 266; Modesto City Schools (1983) PERB Decision No. 291, pp. 47-48.) As a result, the Board’s decision did not interpret the MMBAto target “particular viewstaken by speakers on a subject,” as SDTEF argues (quoting Rosenberger v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819, 829), but conduct that underminesthe collective bargaining process. Because the Board’s decision applying the MMBAisjustified without reference to the content of the Mayor’s speech,it is content- neutral. (Ralphs, supra, 55 Cal.4th 1083, 1102.) b. As an after-the-fact ruling on the applicability of the MMBA,the Board’s decision is not a prior restraint. SDTEFarguesthat the Board imposeda prior restraint on the Mayor by determining that the City was undera duty to bargain with the Unionsin this case. (SDTEFBr., p. 51.) SDTEFclaims that the Board required the Mayorto obtain the City Council’s “approval” before speaking in support of pension reform. (/d. at p. 53.) This claim reflects a misunderstanding both of what a “prior restraint” is and of the Board’s decision. “The term priorrestraint is used to describe administrative and judicial orders forbidding certain communications whenissued in advance of the time that such communicationsare to occur.” (DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 886; internal quotation marks 69 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 omitted; emphasis in original.) Prior restraints are distinct from criminal or civil penalties imposed after the speech takes place, whichare “subject to the whole panoply of protections afforded by deferring the impact of the judgmentuntil all avenues of appellate review have been exhausted.” (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559.) “A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminalor civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” (Ibid. ) The very nature of this proceeding demonstrates that the Board’s decision is not a prior restraint.”*> The decision was issued morethan three years after the last “speech” by the Mayorin favor of Proposition B. It plainly holds the City liable for actions ofthe Mayorthat have already occurred. Plainly, the decision does not forbid any communications in advance of whenthey are to occur. (DVD Copy Control Assn., Inc. v. Bunner, supra, 31 Cal.4th 864, 886.) SDTEFappears to believe that the decision imposesa priorrestraint because the Board required the Mayorto obtain City Council approval “* It bears repeating that the Board’s decision is not any kind of “restraint”—prior or otherwise—onthe Mayor, as the Mayor himselfis not subject to the MMBAand the Board took noaction against him. (See section IV.B.1., ante.) 70 PERB’s Combined Answer to Amicus Curiae Briefs Case No. §242034 before publically supporting Proposition B. (SDTEFBr., pp. 52-53.) Nothing in the Board’s decision supports this notion. The Board held that the City violated the MMBAthroughactions taken by the Mayor within the scope of his duties as the City’s chief executive officer and lead labor negotiator—.e., as an agent of the City—combinedwith the actions of the City in refusing to bargain with the Unions. (AR:X1:3096.) That holding does not require the Mayorto have kept his personal views on a proposed citizens’ initiative to himself absent the approval of the City Council. Moreover, it was not simply the public nature of the Mayor’s support that the Board focused on, but his authority to act on behalf of the City with respect to collective bargaining andhis use of City resources—websites, e- mail, press releases, the State of the City address, and the Mayor’s City- paid staff—to promote the initiative. (See AR:X1:2989 [“[T]he Mayor, his staff, and otherofficials ... appeared at press conferences and other public events, used Citystaff, e-mail accounts, websites and other City resources, as well as the prestige of their offices, to publicize andsolicit support for an initiative aimedat altering the pension benefits of City employees”’].) . c. Evenif it were required to satisfy strict scrutiny, the Board’s decision would be upheld. “Strict scrutiny for purposes of the federal Constitution meansthat a content-based speechrestriction must be ‘necessary to serve a compelling 71 PERB’s Combined Answer to Amicus Curiae Briefs Case No. S242034 state interest, and ... narrowly drawn to achieve that end.’” (Fashion Valley Mall, LLC v. National Labor Relations Bad. (2007) 42 Cal.4th 850, 869.) Even if the MMBA or the Board’s decision could be construed to impose a content-based speechrestriction or a prior restraint, it satisfies this test. First, the MMBA’s purposeis, as noted, promoting labor peace through the collective bargaining process. (§ 3500, subd. (a).) This is, unquestionably, a compelling state interest. (See Ellis v. Brotherhood of Ry., Airline and S.S. Clerks, Freight Handlers, Exp. and Station Employees (1984) 466 U.S. 435, 455-456 [the “significant impingement on First Amendmentrights” resulting from the requirementto pay a service feefor the union’s collective bargaining costs is “justified by the governmental interest in industrial peace”]; Catholic High School Assn. ofArchdiocese of New York v. Culvert (2d Cir. 1985) 753 F.2d 1161, 1171 [“There is a compelling public interest in finding that all unions and employers have a duty to bargain collectively and in good faith’’].) Second, preventing a public agency’s chief executive officer from using the resources of his office to support a change to terms and conditions of employmentoutside the collective bargaining process is necessary to achieve that interest. As the Board explained, the Mayor’s conductin this case “undermine[s] the [MMBA’s] principle of bilateral negotiations by 72 PERB’s Combined Answerto Amicus Curiae Briefs _ Case No. §242034 exploiting the ‘problematic nature of the relationship between the MMBA and the local [initiative-referendum] power.” (AR:X1:2993-2994, quoting Voters for Responsible Retirement, supra, 8 Cal.4th 765, 782.) Further, “for the City’s elected officials, and particularly the Mayoras the chief labor relations official, to use the dual authority of the City Council and the electorate to obtain additional concessions on top of those already surrendered by the Unions on these same subjects raises questions about what incentive the Unions haveto agree to anything.” (AR:X1I:3038- 3039.) Asa result, the necessity of the Board’s “restriction” is beyond dispute. Third, the Board’s decision is narrowly tailored to advancethe compelling interest in promoting collective bargaining. In this regard,it must be shownthatthere is noless restrictive means of achieving the end sought. (U.S. v. Playboy Entertainment Group, Inc. (2000) 529 U.S. 803, 813.) It is important to note that the Board’s decision imposed minimal, if any, restrictions on the Mayor’s speech. The Board did not hold that the Mayorwasprohibited from speaking entirely; instead, it held that the Mayor’s support of Proposition B using the prestige of his office along with City resources andstaff is imputed to the City, such that the City was required to meet and confer with the Unions under the MMBA.(Cf. Jenevein, supra, 493 F.3d 551, 560-561 [upholding againststrict scrutiny 73 PERB’s Combined Answerto Amicus Curiae Briefs Case No. 8242034 challenge an order censuring elected judge for his “use ofthe trappings of judicial office to boost his message’’].) It must also be noted that the Board’s decision does not suggest that al/ speech by the Mayorwill necessarily be imputedto the City. Moreover, the available alternatives to protect the collective bargaining process maybelessrestrictive of speech, but they raise other constitutional concerns. The only other effective meansto preventa local agency from exploiting thecitizens’ initiative process to obtain additional concessions from employeesoutside of the MMBA’s meet-and-confer process would be a categorical prohibition on the useofcitizens’ initiatives for these subjects. Because this wouldrestrict the act of legislating, not speaking,it would not run afoul of the First Amendment. (See Initiative and Referendum Institute v. Walker (10th Cir. 2006) 450 F.3d 1082, 1099 (“Although the First Amendmentprotects political speech incident to an initiative campaign,it does not protect the right to make law,by initiative or otherwise”]; Marijuana Policy Project v. U.S. (D.C. Cir. 2002) 304 F.3d 82, 85 [“[A]lthough the First Amendmentprotects public debate about legislation, it confers no right to legislate on a particular subject”].) Nor would this restriction necessarily violate California’s Constitution, because the Legislature mayrestrict the use of local initiatives to legislate over matters of statewide concern. (See Votersfor Responsible Retirement, 74 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 supra, 8 Cal.4th 765, 779.) Nevertheless, it is unlikely that the City, the Ballot Proponents, or SDTEF would considerthis to be a palatable alternative to the rule laid out in the Board’s decision. Therefore, if it were required to, the Board’s decision would satisfy strict scrutiny. CONCLUSION For all of the foregoing reasons, the amici’s arguments in support of the City and the Ballot Proponents should be rejected, the judgmentof the Court of Appeal should be reversed, and the Board’s decision should be affirmed in full. Dated: January 24, 2018 Respectfully submitted, J. FELIX DE LA TORRE,General Counsel WENDIL.ROSS, Deputy General Counsel _By ULevrel. a KirjAl im — JOSEPH W. ECKHART,Board Counsel Attorneys for Respondent PUBLIC EMPLOYMENT RELATIONS BOARD 75 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 COUNSEL’S CERTIFICATE OF COMPLIANCE Counsel of Record herebycertifies that the enclosed brief of Respondent Public EmploymentRelations Board is produced using 13-point Roman-type font and contains, including footnotes, 14,498 words. Counselrelies on the word countof the computer program used to prepare this brief. Wenrole Kk AAD WENDI L. ROSS Declarant PUBLIC EMPLOYMENT RELATIONS BOARD Dated: January 24, 2018 716 PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 PROOF OF SERVICE BY MAIL C.C.P. 1013a COURT NAME: In the Supreme Court for the State of California CASE NUMBER: $242034 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) CASE NAME: City ofSan Diego v. Public Employment Relations Board; San Diego Municipal Employees Association; Deputy City Attorneys Association; American Federation ofState, County and Municipal Employees, AFL-CIO, Local 127; San Diego City Firefighters Local 14; and Catherine A. Boling, T.J. Zane, and Stephen B. Williams I, the undersigned, declare that I am, and wasat the time of service of the documentsreferred to herein, over the age of eighteen years and not a party to the action; and I am employedin the County of Sacramento, California, in which county the within-mentioned service occurred. My business address is 1031 18th Street, Sacramento, CA 95811-4124 On January 24, 2018 I served PERB’s Combined Answer to Amicus Curiae Briefs regarding the above-referenced case on the parties listed below: Mara W.Elliot, City Attorney Attorneysfor Real Party in M.Travis Phelps, Chief Deputy City Interest City ofSan Diego Attorney City of San Diego 1200 Third Avenue, Ste. 1100 San Diego, CA 92101 Ann M.Smith ' Attorneyfor Real Party in Smith, Steiner Vanderpool & Wax Interest San Diego Municipal 401 West A. Street, Ste. 320 Employees Association San Diego, CA 92101 77 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034 Fern M.Steiner Smith Steiner Vanderpool & Wax 401 West A Street, Ste. 320 San Diego, CA 92101 Kenneth H. Lounsbery James P. Lough Alena Shamos Lounsbery Ferguson Altona & Peak, LLP 960 Canterbury Place, Suite 300 Escondido, CA 92025-3836 James Cunningham Law Offices of James J. Cunningham 9455 Ridgehaven Court, #110 San Diego, CA 92123 Ellen Greenstone Rothner, Segal & Greenstone 510 S.Marengo Avenue Pasadena, CA 91101 Andrew J. Ziaja Arthur Liou Leonard Carder LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Meriem L. Hubbard Harold E. Johnson Pacific Legal Foundation 930 G Street Sacramento, CA 95814 Kerianne R. Steele Anthony Tucci Weinberg Roger & Rosenfeld 1001 Marina Village Parkway, Ste. 200 Alameda, CA 94501 78 Attorneyfor Real Party in Interest San Diego City Firefighters, Local 145 Attorneysfor Petitioners Catherine A. Boling, TJ. Zane, and Stephen B. Williams Attorneyfor Real Party in Interest Deputy City Attorneys Association ofSan Diego Attorneyfor Real Party in Interest American Federation ofState, County & Municipal Employees Attorneysfor Amici IBEW, Local 1245, IFPTE Local 21, Operating Engineers Local Union No. 3, and Marin Association ofPublic Employees Attorneysfor Amici Pacific Legal Foundation, Howard Jarvis Taxpayers Association, and National Tax Limitation Committee Attorneysfor Amicus Service Employees International Union, California State Counsel PERB’s Combined Answer to Amicus Curiae Briefs Case No. 8242034 [X] Thomas A. Woodley Woodley & McGillivary 1101 Vermont Avenue, N.W. Suite 1000 Washington, DC 20005 Marianne Reinhold Laurence S. Zakson William Y. Sheh Reich Adell & Cvitan, APC 3550 Wilshire Boulevard, Suite 2000 Los Angeles, CA 90010 Karen P. Hewitt Jones Day 4655 Executive Drive, Suite 1500 San Diego, CA 92121 Arthur A. Hartinger Renne Sloan Holtzman Sakai LLP - Public Law Group 350 SansomeStreet, Suite 300 San Francisco, CA 94104 Attorneyfor Amicus International Association of Fire Fighters Attorneysfor Amicus Orange County Attorneys Association Attorneyfor Amicus San Diego Taxpayers Educational Foundation Attorneyfor Amici League of | California Cities, California State Association of Counties, and International Municipal Lawyers Association (BY UNITED STATES MAIL) I enclosed the document(s) in a sealed envelope or package addressedto the person(s) at the address(es) above and placed the envelopefor collectionand mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondencefor mailing. On the same daythat correspondenceis laced for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully.prepaid. The envelope or package wasplacedin the mail at Sacramento, alifornia. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct andthat this declaration was executed on January 24, 2018, at Sacramento, California. AYOS. Taylor (Sighature)(Type or print name) 79 PERB’s Combined Answer to Amicus Curiae Briefs Case No. $242034
