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Firefighters sue to bring back binding arbitration

Union alleges city acted unlawfully in placing issue on 2011 ballot

Nearly eight years after Palo Alto voters struck down a long-standing law that required contract disputes between the city and its public-safety unions to be settled via binding arbitration, the city's largest firefighters union is waging a legal battle to bring the requirement back.

The petition by International Association of Fire Fighters, Local 1319 calls for the state attorney general to effectively invalidate the results of the 2011 election on Measure D. The measure amended the city charter to take out the 1978 provision on binding arbitration.

The union has applied for leave to sue in "quo warranto," a type of legal action that challenges the authority of lawmakers to impose a particular law and that requires attorney general approval. If the union succeeds, the state could potentially invalidate the 2011 measure, which was approved by more than two-thirds of the voters.

The union's request is the latest volley in a long legal skirmish that began shortly after the 2011 election. The battle has already involved the state Public Employment Relations Board (PERB) and state court of appeals and has offered limited victories to each side. The firefighters have consistently alleged that the city engaged in an unfair labor practice by failing to meet and consult with the union before placing the measure on the ballot — in violation of the Meyers-Milias-Brown-Act, which governs employee negotiations.

The argument swayed PERB, which ruled in the union's favor in 2014 and ordered the city to rescind the resolution that placed Measure D on the ballot. The city then appealed the decision to the Sixth District Court of Appeal, which concurred with PERB's findings but determined that the labor relations board doesn't have the authority to order that the resolution be rescinded. (PERB subsequently revised its order to comply with the appellate court's decision, though it still maintained that the measure should be repealed.)

While recent court rulings supported the union's claims that the city failed to negotiate in good faith, they did not achieve the firefighters' prime objective: restoring binding arbitration, a policy that the union sees as a useful tool for reaching a compromise, particularly given that state law bars public-safety unions from striking.

Battalion Chief Ryan Stoddard, president of IAFF, Local 1319, told the Weekly that binding arbitration "provides for a fair mechanism to settle disputes, a transparent process that we strongly believe should be a basic right for all labor groups."

Proponents of the appeal, including the majority the 2011 council, argued that the clause has handcuffed the city in its negotiations with the unions and prevented the city from having control over its finances. Since the repeal, the council has scrapped the "minimum staffing" requirement that formerly required at least 29 firefighters to be on duty at one time. And in 2017, the Fire Department adopted a "cross-staffing" model that leans on a three-person crew to operate multiple vehicles. The switch allowed the city to cut 11 positions from the department last year, leaving 104 positions. The IAFF currently represents 88 of those.

At the same time, the council approved last October a new three-year contract with the firefighters union that boosts the firefighters' salaries by 9% over the course of the contract, with a 3% salary increase in each year. The city also granted the union an immediate 2.5% salary increase to bring it in line with what the broader market is paying.

Stoddard pointed to the recent contract negotiations as evidence that the union has been "working hard to build positive relationships with the city." Binding arbitration, he noted in an email, "is a process that both sides hope to never use because not using it would mean that both parties are working together in a collaborative and effective way, which is always our goal."

Even so, the union was dismayed to learn earlier this year that the city does not intend to repeal Measure D. The union had hoped the city would comply with the determinations of PERB and the appellate court, he said.

"When we last approached the city to confirm they would indeed comply, they denied. That left us no choice but to move forward with the process," Stoddard wrote.

The union's most recent legal action isn't entirely surprising. The union's attorney informed the city in 2017 about the union's intention to pursue the quo warranto suit. And in January of this year, the union's attorneys once again demanded that the city comply with the PERB decision and invalidate Measure D. The city responded that it believes it had complied with the labor board's ruling (it had posted notices, for example, notifying employees of the PERB decisions) and that it would not rescind the measure unless the union were to move ahead with the quo warranto action.

In its July 12 filing, the union's attorney, Kathleen Mastagni Storm, argued that the city has "violated the core values" of the Meyers-Milias-Brown-Act, which are to "promote full communication between public employers and employees" and "to improve personnel management and employer-employee relations within the various public agencies." The application requests that the attorney general allow the union to sue "to challenge the city's unlawful charter amendment repealing binding interest arbitration."

The city's attorneys, while conceding the prior courts' determination that the city had ran afoul of the labor law, are urging the attorney general to reject the firefighters' application. In their July 29 filing on behalf of the city, attorneys Charles Sakai and Eric Della Santa argued the firefighters union has failed to take action over the past two years, rendering its claims "stale."

Measure D, the city's attorneys note, passed almost eight years ago. And it's been two years since the last PERB decision, which concluded the litigation.

"Despite IAFF declaring its intention to file the present application for leave to sue in quo warranto as early as June 28, 2017, it has unreasonably and without cause failed to do so until the present time," the city's attorneys wrote.

They also argued that granting the union's request would "run contrary to the public interest." The union, they wrote, refrained from requesting consultation with the city over binding arbitration until the very last meeting, when the council was scheduled to vote on placing Measure D on the ballot. Such a late request, they wrote, is little more than "an attempt to throw a wrench in the democratic process and threatens the integrity of a city's constitutional right to self-determination of matters within its plenary authority."

"Allowing IAFF to intentionally wait until the conclusion of two-and-a-half months of public discussion before demanding that the process move into a private negotiation is exactly the type of gamesmanship that has the potential to subvert the entire public process and therefore cannot be allowed," Sakai and Della Santa wrote.

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Comments

43 people like this
Posted by Citizen
a resident of Crescent Park
on Sep 20, 2019 at 7:46 am

I'd say the firefighters are doing just fine without binding arbitration, and rewarding them for their attempted end run of the clear will of the voters would be a terrible precedent. The average fire pension for an age 55 retiree career firefighter is already in six figures, we're already hundreds of millions behind (thanks in part to a CALPERS sponsored retroactive pension increase during the first tech bubble) and our children will be on the hook for much of it if CALPERS continues to miss its outsized return expectations.

There is also virtually no voluntary turnover, and hundreds of quality applicants for each open position (unlike police, for example, who's turnover/staffing situation demonstrates that compensation is somewhere close to market equilibrium).

If the fire union manages to reverse a 3/4 vote by the citizens of Palo Alto on a dubious legal interference maneuver, we should have an initiative to outsource future fire service and put this baby to bed. It'd be worth it just to be rid of the CALPERS pensions. Firefighters, you are on the gravy train already. Stop pushing it because the public is out of patience.


Like this comment
Posted by He must go
a resident of Old Palo Alto
on Sep 21, 2019 at 10:14 am

Well Citizen,

Are you an American? Do you use the services of any city? That’s right your rich enough to buy the entire city. So your moral authority is to determine that any firefighter already gets enough pay and retirement through CALPERS. As you mention @55 to be able to retire with a six figure salary. Hopefully they are able to buck the trend and live a long live because the average age that a firefighter is only 62. SO GET OVER IT. And pick on some other group that actually deserves it.


5 people like this
Posted by Citizen Too
a resident of Another Palo Alto neighborhood
on Sep 21, 2019 at 10:36 am

@Citizen,
The average citizen, like me, has very little experience to appreciate who is "right" in this dispute with the City. I remember that election, and I remember how difficult it was to make a decision or feel that I understood the issues well enough to even appreciate why it was on the ballot.

Since that election, I have come to understand that our City has an unfair advantage in elections, and can even engage in illegal electioneering in ballots without any checks or balances. When the City places an issue on the ballot, their own employees write the ballot questions and the "impartial" ballot analyses. If you look back at the land use referenda of the past 30 years, City Council even seems aware of how they named potentially contentious ordinances in order to get an advantage in the ballot title if there is a referendum such as at High Street. In the Maybell referendum, some citizens asked for a review of the ballot question and analysis by an elections law firm, which found the City was engaging in illegal electioneering in their own ballot question and analysis. There was an article about that in the paper, but citizens had no funds to file a lawsuit to change the language. They shouldn't have to. The rules around -- significant limits on -- who can submit arguments in the election materials also favor the City.

Decades ago, San Francisco, a charter city like Palo Alto, changed their elections to be more impartial. Now, the City Attorney is only there in an advisory role and cannot write the "impartial" analysis for ballots anymore. Every year, a voluntary panel comes together and takes input from all sides to hash out the language of ballot questions and analyses. The makeup of the panel, and who decides where the volunteers come from, is described in the code -- there now tend to be more people from the communications industry (talk to the SF elections commission about how this helps). The code eliminated the extreme restrictions on who could submit a ballot argument (although I personally would be in favor of some limitation over how SF does things, the current restrictions are so limiting and so favor existing elected officials, they probably only pass muster Constitutionally because it's expensive and difficult to challenge things like that locally).

SF's city charter language would be easy to adapt to Palo Alto's charter. Citizens would have to put forward a charter amendment to be voted on, City Council would never voluntarily put forward a check and balance on their power like this.

Knowing how the City Council can stack elections because of our current code and their ability to control the election materials along with City staff who typically advocate for CC's wishes (not impartial either), I look back at that election with the firefighters and arbitration, and do not feel comfortable drawing any conclusion about the will of the people.

Until we eliminate the unfair and undue ability City Council has to manipulate the elections material, including the "impartial" ballot analyses, ballot titles, arguments, and ballot questions, I think we have to take any election result in which City Hall was one side of the fight with a hefty grain of salt.

Making that change to the City charter would be a wonderful project for some engaged high school students in a government class somewhere ---


27 people like this
Posted by Santiago
a resident of Charleston Meadows
on Sep 21, 2019 at 7:57 pm

"Hopefully they are able to buck the trend and live a long live because the average age that a firefighter is only 62. SO GET OVER IT. And pick on some other group that actually deserves it."

Wow. I assume from context you mean the average firefighter *dies* at age 62, which is absolutely asinine. Many a fire Union has attempted to play that card when their generous pensions are under fiscal scrutiny. So much so, in fact, is that an actuarial study was performed:

Web Link

The actuaries say the result is a far cry from the 62 years you claim:

The average life expectancy at age 60 for police and firefighters was 24 years for men and 26 years for women. For non-police and fire, the comparable figures were 25 years for men and 27 years for women – just one year longer!


26 people like this
Posted by Taxpayer
a resident of Downtown North
on Sep 22, 2019 at 9:38 am

The firefighters union needs to grow up and be grateful for the well-paid jobs they have.

Reminds me of the former Deputy Fire Chief Capriles who insisted she had a case to sue the city for being reprimanded for taking a fire engine out on unofficial business. Outrages by being suspended, she took the city to court and lost. I guess the firefighters think mediation over court would increase their chances of such frivolous arguments as well as keep them out of the public's eye given most mediation tends to be confidential.


28 people like this
Posted by Citizen
a resident of Charleston Meadows
on Sep 22, 2019 at 9:57 pm

Get over yourself firefighters and get your snout out of the public trough - for once!

You are bankrupting all of us and our children w your greedy demands.


5 people like this
Posted by Citizen Too
a resident of Another Palo Alto neighborhood
on Sep 23, 2019 at 12:51 am

I have always been grateful for our firefighters and have never had cause to think of them as greedy. I believe they should have more say in safety where planning is concerned and should not be subordinate to greedy developers, but that's a different issue.

Calling our professional firefighters names does not help your arguments. 45's tax changes caused our taxes to go up five figures and threaten to bankrupt us and our children. Medical costs threaten to bankrupt us. Our school district keeps pushing for huge tax increases that they don't have any assurances will be spent well (and have, in recent history, NOT been spent as promised), even as they treat families very unequally. I really cannot see any way that the firefighters who protect us are even coming close to any of that.


1 person likes this
Posted by different taxpayer
a resident of Midtown
on Sep 23, 2019 at 1:35 am

45's tax changes closed the loophole that subsidized us in high-tax California.


18 people like this
Posted by Philip
a resident of Palo Alto Hills
on Sep 23, 2019 at 8:38 am

Please publish the firefighters 2018 yearly salaries along with the overtime and benefits paid. Let’s see how “bad” they have it.


2 people like this
Posted by Citizen too
a resident of Another Palo Alto neighborhood
on Sep 23, 2019 at 8:53 am

@different
California has a higher cost of living because of supply and demand. Everything is more expensive. That includes wages i.e. taxes that we sent to the federal government. We were and are a net contributor to the federal treasury. No one was subsidizing California.

The limit on property taxes deduction is unequal treatment under the law,Because of the cost of living differences across the country. A salary of $25,000 in many parts of the middle, is like a salary of $110,000 here, although those numbers have to be adjusted since the tax changes increased costs more and was aimed at hitting those who could least afford it hardest.

Cost of living should have been factored in to the limit. Someone with significant real estate experience including major real estate investments in California would know that creating these unique conditions, this unique pressure on homeowners at the low end, would disadvantage sellers on the struggling end of the socioeconomic ladder and create relative bargains for rich investors.

Especially sinceNow only investors get to deduct their property tax payments. Why should only rich investors get to deduct their property tax payments for real estate investments? If they buy a piece of art as an investment, It makes no difference to gain whether they hung it on their wall and enjoyed it or kept it in the closet. I.e. used it personally. Why should homeowners be unable to deduct the property taxes when it’s often their only major investment but investors can still deduct those expenses?

I can’t believe you’re talking about loopholes when people at the top saw their taxes drop while homeowners at the bottom In blue states like California saw their taxes skyrocket. It did cool the housing market in California almost instantly. And it heated up the housing market in the middle (red states), Mainly people from the coasts.Well this may have an interesting effect if it redistributes liberal voters across the country.

These tax changes brutally and suddenly with very little time for people who can’t ordinarily afford accountants to figure out how their lives were completely upended and their and their children’s futures dramatically altered.

If any loopholes need to be closed, it is the way that major corporations and the wealthiest individuals get to take advantage disproportionately of public investments, like the airports and the ports and the transportation systems, the justice system,the monetary system, the stability because of our military and our history, our educated workforce, are public health system, our infrastructure, public works, etc. etc. without ever paying back — there is a reason they made their money here not in war torn Sudan. When Eisenhower, Republican, was president, fiscal conservatives were also actually fiscally responsible. They believed in paying our way and for those who benefited the most from public investments to pay back when they profited because of those investments.

45 promised a tax break and simplification of taxes. But that’s not what millions of people in the highest cost states got. The ordinary person isn’t going to understand the implications . But a person well-versed in real estate in these expensive areas would know exactly what that meant. If liberals were smart, they would start figuring out how to explain cost of living differences, and find easy examples of families who had to leave their homes, small businesses, their children had to leave their schools, had to live ailing parents in nursing homes, because they suddenly and without warning had to move away or were put in sudden debt or their child’s college savings gone because of the tax changes.

I leave little hope that Dems will start learning how to explain anything, especially since they’ve bought into the developer narrative to destroy homeowners(despite how the overdevelopment that results only ever just makes the richest richer and accelerates displacement of ordinary and low income people so they are just as complicit as the Cons). But we will see what all the blue state voter moves to red states now does to change things…

Those changes also had the effect of taking money from local governments like ours, where they pay for things like firefighter salaries, and funnel them to the federalgovernment when we were already a net contributor to the treasury.

(Do you ever wonder why the right wing don’t get that a wall built to keep others out could equally be used to keep them in even if they have guns...)


23 people like this
Posted by Citizen
a resident of Community Center
on Sep 24, 2019 at 10:58 am

Here are the City of Palo Alto fire fighters salaries - you can google firefighters city of palo alto salary schedule and find it: Web Link
There are a variety of classifications, from Firefighter Apparatus Op to Paramedic to Captain and so forth.
The lowest paid $128,215/year - not including benefits or overtime.
The highest paid $ 183, 310/year - not including benefits or overtime.

The average tech worker's pay in the Bay Area, which includes Facebook and Google, is $122,242, as of 11/5/18. (Web Link)

The City of Palo Alto's firefighter's pay exceeds the pay of the average tech worker in the Bay Area.

The City of Palo Alto has $900 million in unfunded pension liabilities, which would include firefighter pension liabilities.


12 people like this
Posted by City Employee
a resident of Another Palo Alto neighborhood
on Sep 24, 2019 at 12:05 pm

Union member Stoddard sue the city to get promoted even though the fire management consider him a weak candidate for the position of Battalion Chief. Sue when you don’t get your way is now standard for this fire union.


7 people like this
Posted by Anon
a resident of Another Palo Alto neighborhood
on Sep 26, 2019 at 11:00 am

To some extent, supply and demand have to be at work, even for very dangerous jobs. Back when I was a kid, Tex Thornton was a legend and Red Adair was famous fighting oil well fires. Whatever they paid their workers, it was dangerous. I can't help noticing that the police are always looking for a few good citizens to hire, while the firefighters-- never an opening. Then, if you look at the CPA published salaries and benefits, firefighters dominate the top. Supply-and-demand tells me that police are generally a little underpaid, and, IOW, firefighters must be getting paid "enough".

In the meantime, driving down ECR yesterday, I noticed a fire truck convention on Curtner Ave. I expected to read about something in the news today, but, haven't seen anything. Was there a fire, or, was there some kind of emergency exercise? I've got nothing against PAFD, but, I don't appreciate turning a small kitchen fire into a five alarm fire. For one thing, if every truck in town is in one place, it has to compromise response time in the rest of the city. What was going on over there? I guess every incident is a training opportunity, but, from an outside perspective, it looks like a make-work/busywork activity.


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