Public Sector Case Notes

• Citation: Vol. 38 No. 5
• Publication year: 2024
• Author: Scott Tiedemann

PUBLIC SECTOR CASE NOTES

AUTHORS^*

Scott Tiedemann

Nathaniel Price

VOTER-APPROVED INITIATIVE INVALIDATED AS ULP REMEDY

People ex rel. International Ass'n of Firefighters, Local 1319, AFL-CIO v. City of Palo Alto, 102 Cal. App. 5th 602 (2024)

This is yet another case in which courts have addressed a public employer's obligations under the Meyers-Milias-Brown Act (MMBA)¹ when certain changes impacting public employees are submitted for voter consideration.

In 2010, the Palo Alto City Council adopted Resolution 9189, which proposed that city voters amend City Charter article V to repeal binding interest arbitration and replace it with other dispute resolution procedures. The city believed that doing so did not trigger an obligation under the MMBA to consult in good faith with its public safety unions. It held a special election in November 2011, and the voters passed Measure D, repealing binding interest arbitration from the City Charter.

The firefighters' union filed an unfair practice charge with the Public Employment Relations Board (PERB). PERB concluded that the city violated section 3507 of the MMBA by enacting the resolution and submitting Measure D to the voters without first consulting the firefighters' union in good faith. The court of appeal affirmed this conclusion, but held that PERB lacked authority under separation of powers principles to order the city to rescind the resolution. The court remanded the case to PERB to determine the appropriate remedy.

On remand, PERB ruled that the city's action in referring Measure D to the voters was void, and directed it to consult in good faith with the firefighter's union upon request. The city did not reinstate the original charter provision as it existed before Measure D ws passed. Both the firefighters' union and the city disagreed about whether the city complied with PERB's orders.

In a quo warranto action under California Code of Civil Procedure section 803 authorized by the California Attorney General, the firefighters' union argued that the trial court should invalidate Measure D because the city failed to consult in good faith before placing it on the ballot. The city countered that the election was not an unlawful exercise of a franchise, and that the MMBA violation should not invalidate the will of the electorate.

The trial court did not invalidate Measure D. Instead, it retained jurisdiction for the limited purpose of issuing a final judgment invalidating Measure D if:

• The city and the firefighters' union agreed to use alternative procedures to binding interest arbitration;
• The city passed a resolution to pursue a charter amendment alternative to Measure D; or
• PERB determined that the city failed to consult in good faith with the affected public safety unions.

The firefighters' union appealed.

The court of appeal concluded that once the trial court determined that the city's submission of Measure D to the voters violated the MMBA, it abused its discretion by failing to invalidate Measure D. The court of appeal remanded the case to the trial court to:

• Order the city to restore the pre-amendment portion of article V to the City's Charter;
• Invalidate Measure D; and
• Provide any other appropriate relief.

NO FEHA MIXED-MOTIVE RELIEF FOR WHISTLEBLOWER RETALIATION

Ververka v. Department of Veterans Affairs, 102 Cal. App. 5th 162 (2024)

Donald Ververka worked for the California Department of Veterans Affairs (CalVet) as

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the administrator of the veterans' home in Yountville, California. Days after Ververka reported some concerns about safety and health, his supervisor recommended that he be removed due to poor management of the home. Ververka sued CalVet, claiming he was terminated in retaliation for reporting health and safety issues about the home to an independent state agency and to his supervisor.

At trial, the jury found that Ververka's disclosures were protected "contributing factors" to CalVet's decision to terminate him for purposes of his state whistleblower claim.² But the jury still found in favor of CalVet, finding it had proven by clear and convincing evidence that it would have made the same decision for "legitimate, independent reasons" as specified in the whistleblower statute.

On appeal, Ververka argued that because the jury found his protected...