Breaking Down Boling v. Public Employment Relations Board
By: Jon Holtzman & Arthur Hartinger1
On August 2, 2018, the California Supreme Court issued its decision in Boling v. Public Employment Relations Board (S242034). The Court deferred to the Public Employment Relations Board’s (“PERB”) finding that the City of San Diego violated the Meyers-Milias-Brown Act (“MMBA”) when its mayor promoted a citizens’ initiative that would affect public pension plans without first meeting and conferring with public unions. Although the decision is framed as a straightforward application of the MMBA, its consequences could be far reaching because it largely insulates PERB’s legal interpretations from judicial review while curbing elected officials’ free speech rights and citizens’ initiative rights.
II. The Decision
In Boling, the mayor of the City of San Diego sponsored a citizens’ initiative to eliminate pensions for new municipal employees and refused union demands to meet and confer over the measure.2 Although the initiative was ultimately put forth by private citizens, the mayor “conceived the idea of a citizens’ initiative pension reform measure, developed its terms, and negotiated with other interested parties before any citizen proponents stepped forward.”3 The mayor also “relied on his position of authority and employed his staff throughout the process,” and “continued using his powers of office to promote the Initiative after the proponents emerged.”4
The labor unions filed unfair practice claims against the City, arguing that the mayor’s refusal to meet and confer over the measure violated the MMBA. PERB found that the failure to meet and confer constituted an unfair labor practice. The Court of Appeal reversed after reviewing PERB’s legal determinations de novo, holding that the MMBA does not require a public employer to meet and confer over an initiative measure unless it is proposed by the governing body.
The California Supreme Court granted review and reversed. The Court first held that courts must defer to PERB’s legal interpretations and the Court of Appeal erred in “reviewing PERB’s interpretation of the governing statutes de novo.”5 Although the Court acknowledged that “the application of law to undisputed facts ordinarily presents a legal question that is reviewed de novo,” the Court explained that “when the matter falls within PERB’s area of expertise, the deferential standard . . . applies to its legal determinations even if based on undisputed facts.”6 Moreover, the Court reasoned, “when conflicting inferences may be drawn from undisputed facts, the reviewing court must accept the inference drawn by the trier of fact so long as it is reasonable.”7
The Court then considered “whether the mayor’s pursuit of pension reform by drafting and promoting a citizens’ initiative required him to meet and confer with the unions.”8 Applying deferential review, the Court agreed with PERB that the mayor “had an obligation to meet and confer with the unions.”9 The Court relied heavily on its decision in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, where it held that the meet and confer provisions of the MMBA applied when a city exercised its own constitutional power to propose charter amendments to its voters.10 Pointing to the importance of the “meet-and-confer requirement of section 3505” and the MMBA’s aims—to “foster full communication between public employers and employees and to improve employer-employee relations”—the Court held that “[t]hese purposes require compliance with section 3505, even when an agency decides to take a proposal directly to the voters.”11
The Court further explained that the MMBA “expressly imposes the duty to meet and confer on ‘[t]he governing body of a public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body.’”12 Thus, the duty to meet and confer “attaches to actions taken by agency representatives without a governing body’s participation.”13 By fixating on a separate provision of the MMBA regarding how governing bodies must give notice about the duty to meet and confer, the Court of Appeal overlooked the fact that the duty to meet and confer also applies to “administrative officers or other representatives as may be properly designated by law.”14
Accordingly, it did not matter that the city council had not adopted the initiative. Because the mayor “was the city’s chief executive, empowered by the city charter to make policy recommendations with regard to city employees and to negotiate with the city’s unions,” and “pursued pension reform as a matter of policy while acting as the city’s chief executive officer,” “he was required to meet and confer with employee representatives in this process.”15
The Court rejected any argument that the mayor had acted beyond the scope of his mayoral authority and only in a personal capacity, explaining that “[t]he relevant question is whether the executive is using the powers and resources of his office to alter the terms and conditions of employment” and that the mayor had “consistently invoked his position as mayor and used city resources and employees to draft, promote, and support the Initiative.”16
The Court recognized that the “line between official action and private activities undertaken by public officials may be less clear in other circumstances,” but explained that “when a local official with responsibility over labor relations uses the powers and resources of his office to play a major role in the promotion of a ballot initiative affecting terms and conditions of employment, the duty to meet and confer arises.”17 Importantly, the Court indicated that PERB will have substantial deference in making this determination, explaining that “[w]hether an official played such a major role will generally be a question of fact, on which PERB’s conclusion is entitled to deference.”18
The Court remanded to the Court of Appeal to “address the appropriate judicial remedy for the violation” of the MMBA it identified in its opinion.19
Boling should not be read as a statement on pension reform. Indeed, the Court expressly noted at the outset of the decision that “[w]e are not called upon to decide, and express no opinion on, the merits of pension reform or any particular pension reform policy.”20
Boling does, however, carry significant—and detrimental—consequences for public employers.
First, the decision requires courts to give significant deference to PERB’s legal interpretation of the MMBA. This may effectively give PERB the last word over cases involving the MMBA and related public employment statutes, even if they also implicate municipal, constitutional, and election laws. Given that PERB has been consistently hostile to local ballot measures, methodically striking them down on both substantive and procedural grounds,21 it stands to reason that PERB will be even more emboldened to invalidate the will of the voters in future cases knowing that its legal interpretations will be entitled to substantial deference from the Court of Appeal. Indeed, as Boling itself illustrates, the Court deferred to PERB’s interpretation of the MMBA without even considering how such blind deference might encroach upon constitutional principles involving free speech and the initiative right.
Second, Boling raises a major red flag for public officials with policymaking authority over the terms or conditions of public employment. Although the degree to which the San Diego mayor’s actions, as depicted in Boling, were intertwined with his private advocacy seems especially high, the decision will certainly discourage public officials from openly lending any support to citizen initiatives that promote their agenda, effectively chilling the right of elected officials to communicate and offer their opinions about legislation and other issues affecting their communities.22 Moving forward, public officials will need to be very careful how to express their political views regarding public employment. Under the Court’s decision, any expressions of support or opposition on a labor-related initiative could be viewed as somehow attributable to the formal position of the agency and could be used to invalidate otherwise lawful citizens’ initiatives. In this respect, the Court’s decision completely overlooks the First Amendment implications of its ruling.23 The City of San Diego tried to draw the Court’s attention to these implications, arguing that invalidating the initiative would abridge the mayor’s free speech rights under the First Amendment.24 Yet the Court ignored these arguments, failing to address them entirely. In addition, the Court apparently does not care that the mayor had no authority to set labor relations policy without a majority of his Council.
Third, Boling threatens to hinder future citizen initiative efforts that seek to alter the terms or conditions of public employment by requiring “bargaining” over a process that is constitutionally reserved to citizens. In holding that the mayor had a duty to meet and confer over the private citizens’ ballot measure, Boling not only infringes on public officials’ free speech; it also abridges the fundamental right to petition of the citizen sponsors who have no collective bargaining responsibilities and have no legal obligation other than to gather the requisite number of signatures and submit the measure, as drafted, in a timely fashion. In fact, the decision does not even cite the constitutional initiative right, let alone courts’ duty “to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled.”25 To be sure, the exact contours of the remedy for the MMBA violation in Boling will not be apparent until the Court of Appeal crafts one on remand. But the Court’s failure to even acknowledge the constitutional principles at stake speaks volumes, striking a blow to the initiative right.
In sum, the Supreme Court’s decision in Boling has little to say about the merits of pension reform, but will undoubtedly encourage PERB’s hostility to local ballot measures while encroaching on constitutional rights to initiative and free speech. Public officials with policymaking authority over the terms and conditions of public employment should be very cautious about speaking out on any labor-related initiative measures, lest their speech be used to invalidate otherwise lawful initiative measures under the MMBA. Similarly, citizens who wish to propose reforms through the initiative process that affect the terms and conditions of public employment should avoid coordination with public officials in anything approaching their official capacity.
For further information, please contact:
(1) Disclosure: The authors filed an amicus curiae brief on behalf of the League of California Cities in support of the City of San Diego in this case.
(2) (Boling v. Public Employment Relations Board (Aug. 2, 2018) Case No. S242034 (Slip opn.) at p. 2.)
(3) (Id. at p. 19.)
(4) (Ibid.; see also id. at pp. 23-24.)
(5) (Id. at p. 3.)
(6) (Id. at pp. 14-15.)
(7) (Id. at p. 15.)
(8) (Id. at p. 17.)
(9) (Id. at p. 15; see also id. at p. 2 [“the MMBA applies to the mayor’s official pursuit of pension reform as a matter of policy”].)
(10) (Id. at pp. 17-19.)
(11) (Id. at p. 19.)
(12) (Id. at p. 22, quoting and emphasizing Gov. Code, § 3505.)
(13) (Ibid. [citing cases where the duty to meet and confer applied to a police chief’s reorganization of the department or alteration of practice relating to shooting incidents, a fire chief’s issuance of a drug test directive, and a county administrator’s alteration of a vehicle use policy].)
(14) (See ibid.)
(15) (Id. at pp. 22, 24.)
(16) (Id. at p. 24.)
(17) (Id. at p. 25.)
(18) (Ibid., citing Gov. Code, § 3509.5, subd. (b).)
(19) (Id. at p. 30.)
(20) (Id. at p. 3, fn. 2.)
(21) (E.g., City & County of San Francisco (2017) PERB Decision No. 2540-M [striking down interest arbitration reform initiative measure passed by voters]; City of Palo Alto (2014) PERB Decision No. 2388-M [striking down ballot measure repealing interest arbitration passed by voters]; County of Santa Clara (2010) PERB Decision No. 2114-M [striking down prevailing wage measure].)
(22) (See Boling, supra, at p. 24 [“As a ‘strong mayor’ and the city’s designated bargaining agent, he was required to meet and confer with employee representatives in this process”].)
(23) (See Wood v. Georgia (1962) 370 U.S. 375, 395 [“the role that elected officials play in our society makes it all the more important that they be allowed freely to express themselves on matters of current public importance”].)
(24) (See Boling, supra, Answering Br. of the City of San Diego, at pp. 46-49.)
(25) (Fair Political Practices Com. v. Superior Court (1979) 25 Cal. 3d 33, 41.)