San Jose Mayor Chuck Reed tweaks public pension ballot proposal

Sacramento Bee
Published Wednesday, Nov. 13, 2013

San Jose Mayor Chuck Reed has revised the public employee pension ballot measure, tweaking its language to fend off opponents’ criticisms that the proposed constitutional amendment circumvents collective bargaining and guarantees proponents a payday in state-subsidized legal fees to defend the measure if the state attorney general declined to fight lawsuits that would certainly follow the its approval.

“In the last two or three weeks we’ve talked to a lot of people,” Reed said this morning in a telephone interview, including the legislative analyst staff and the attorney general’s office. “Some parts of our measure weren’t clear. So we’re trying to make it clear what our intentions are.”

Union opponents seized on the revision -- and a switch in the lineup of the measure’s proponents -- as a sign that the proposal is in trouble. Among other things, Reed’s proposal would change California’s constitution to allow public employee pensions to be lowered prospectively for current workers. A body of case law appears to make that illegal without another form of compensation to offset that loss.

"It is clear that the wheels are coming off the wagon of Mayor Reed's pension scheme," said Dave Low, chairman of labor coalition Californians for Retirement Security, in a press statement released this morning.

Here are two key before-and-after passages of the measure and Reed’s comments about theme:

BEFORE:

(2) If a government employer takes any of the actions described in this subsection, such actions shall apply only to work performed by employees after the date on which the government employer takes such actions.

(3) If such actions are within the mandatory scope of collective bargaining, they shall be submitted to collective bargaining. If the government employer and represented employees do not reach an agreement within 180 days, the government employer shall have the authority to implement such actions.

Retirement plan administrators shall be required to implement changes as directed by the government employer unless ordered otherwise by a court.

(4) The government employer shall make factual findings establishing that such actions are reasonable and necessary to serve an important public purpose and are consistent with the United States Constitution and the California Constitution, as modified by this Act.

AFTER:

(2) The government employer shall make factual findings establishing that such actions are reasonable and necessary to serve an important public purpose and are consistent with the United States Constitution and the California Constitution, as modified by this Act.

(3) If a government employer takes any of the actions described in this subsection, such actions shall apply only to work performed by employees after the date on which the government employer takes such actions.

(4) If such actions are within the mandatory scope of collective bargaining, they shall be submitted to collective bargaining.

REED: “We’re not trying to change the collective bargaining system here. (Lowering pensions prospectively for current employees) is subject to collective bargaining and we say that in a couple of places (in the measure).”

BEFORE:

(b) In the event that the proponents are defending this Act in a legal proceeding because the State has declined to defend it or to appeal an adverse judgment against it, the proponents shall:

(1) act as agents of the people and the State;

(2) be subject to all ethical, legal, and fiduciary duties applicable to such parties in such legal proceeding;

(3) take and be subject to the Oath of Office prescribed by Article XX, section 3 of the California Constitution for the limited purpose of acting on behalf of the people and the State in such legal proceeding; and (4) be entitled to recover reasonable legal fees and related costs from the State.

AFTER:

(b) In the event that the proponents are defending this Act in a legal proceeding because the State has declined to defend it or to appeal an adverse judgment against it, the proponents shall:

(1) act as agents of the people and the State;

(2) be subject to all ethical, legal, and fiduciary duties applicable to such

(3) take and be subject to the Oath of Office prescribed by Article XX, section 3 of the California Constitution for the limited purpose of acting on behalf of the people and the State in such legal proceeding.

REED: “People were saying you put that in there to make attorneys’ fees. ... So we took it out.”

In another change, Democratic Santa Ana Mayor Miguel Pulido is no longer listed as supporting the measure. Instead, Vallejo Vice Mayor Stephanie Gomes’ signature is on the revised ballot measure as a proponent.

A message left with a Pulido spokesman inquiring about the mayor’s support of the measure wasn’t immediately returned this morning.

Reed said Pulido still supports the pension initiative, but that his work on another ballot measure and the daily concerns of running Santa Ana meant “he just felt he couldn’t spend the time, energy and effort on this.”