Letters from OCAA Treasurer and President.
We want to update you on the status of our litigation against the county in our bad faith bargaining case challenging the illegal imposition of terms and conditions of employment. The details of the trial we just completed in the Public Employment Relations Board (PERB – you can read about PERB here http://www.perb.ca.gov/ ) are below. We have a separate legal action against the county in the Orange County Superior Court that is set for a hearing on February 14, 2014. But before we update you on the status of those two cases, we want to remind everyone how and why we got here.
Our last contract with the county expired in June 2011. We began negotiating our next contract with the county on May 13, 2011. At that time, we were negotiating with the head of the County’s HR Department. It is important to note that every contract we had negotiated with the county up until now was negotiated with county HR. Between May and September 2011 we met with county HR numerous times. We exchanged proposals with the county and the parties were making steady progress towards an agreement.
Then on September 7, 2011, the county notified us it was placing negotiations “on hold.” We told the county we did not want to stop negotiating and remained committed to working with the county to reach a deal. During subsequent conversations the county confirmed it was still desirous of placing the negotiations on hold and declined to meet with us.
In early 2012 we were contacted by the county because it finally wanted to resume negotiations. But now there was a new negotiator — Bruce Barsook, a partner in the law firm of Liebert, Cassidy & Whitmore. This was the first time in history that the county hired a private law firm to negotiate a contract with us. We first met with Barsook on April 27, 2012. The first thing he did was present us with a handout titled “Initial Proposal.” We pointed out that we had been negotiating with the county for months and as such this was not an initial proposal. He ignored our objection and literally made us sit there while he read out loud the entire three page “initial proposal.” The initial proposal completely ignored all the progress we made while negotiating with county HR and contained a number of proposals that were not ever a part of the earlier negotiations.
Nonetheless we negotiated with Barsook between April and August 2012 and tried to reach an agreement with the county. During those negotiations, we presented a number of proposals. Each of these proposals included an offer for us to pay the entire employee share of pension contributions if an agreement could be reached on other issues and the pension contribution obligation was phased in over time. Each offer was rejected. But every time Barsook rejected an offer, we said we could and would come up with new ways to try and meet both parties’ objectives.
It became increasingly clear that Barsook and the county were not exhibiting any real interest in considering any of our proposals. On August 24, 2012, Barsook gave us what he labeled the county’s last, best, and final offer. It was virtually identical to the “initial proposal” he gave us the first time we met. In September 2012 our members voted to reject the offer.
As we have discussed previously, the OCAA board has serious concerns about the county hiring this private law firm to conduct the negotiations. Our primary concern is that the law firm has little incentive to resolve our contract. In fact the firm has the opposite incentive — the longer it takes to reach a deal, and the more litigation we engage in over the county’s bad faith, the more money the firm makes. Public contracts reveal that Barsook is paid $300 an hour by the county to negotiate our contract. That is more than double any attorney in our association makes, even including all of our benefits. So as you can see there are incentives that make reaching an agreement less likely.
After we rejected the last, best, and final offer, in October 2012 we went through mediation to try to reach a deal. The county refused to change its offer, and thus the mediation was unsuccessful. At the end of 2012, we went through a fact-finding hearing required by the Meyers-Milias-Brown Act. In January 2013 the fact finder made a recommendation to attempt to resolve our contract. Barsook told us that if our members voted to accept the fact finding recommendation, the county would agree to it. In February 2013, our members voted to reject the county’s latest offer.
On March 5, 2013, the county Board of Supervisors (BOS) voted to impose the current terms and conditions of our employment. Larry Yellin and Scott Van Camp spoke at that Board meeting prior to the vote. Both explained that the county had acted in bad faith (OCAA had already filed an unfair labor practice charge at that point), that imposing increased pension contributions was illegal under the 2013 Public Employees’ Pension Reform Act, and the OCAA would take further legal action against the county if the county voted to impose. Without any discussion, the BOS unanimously voted to impose. You can watch video of the vote here (the discussion is agenda number S24C and starts at 1:53 of the video)
We believe that what the county did represents bad faith bargaining, was illegal, unnecessary, and wrong. Even though there was no discussion among the BOS when they voted, here are some of the comments Supervisor Todd Spitzer made at the end of the meeting. You can watch the video of his comments here (it is under the Board comments section at the end of the meeting and starts at 2:22 of the video)
Spitzer (even though he said nothing prior to the vote), began his comments by saying that many people know he “served in the trenches” with the attorneys in the county for many years. He knows how hard we work, but he also knows we are some of the “highest compensated employees in the county,” with “an average compensation of $190,762.00.” He said we have received an “increase in total compensation of 17.5%” between 2007-2008 and 2011-2012. Spitzer made no mention of the fact that offers we made to the county included us paying the full employee share of pension contributions, and no mention of the fact that we had previously agreed to postponing raises and to furloughs.
These figures are simply false. We are among the highest paid employees, but that is because we are attorneys. What is even more disturbing about Spitzer’s comments is that before the vote, he shared with Yellin and Ebrahim Baytieh privately that he believed we were being reasonable. Then he turned around and publicly voted to impose and tried to justify that vote by saying how much money we make.
And recently BOS Chairman Shawn Nelson said in his weekly newsletter that imposing the terms and conditions on us is one of the “major accomplishments” of his term in office. You can read that newsletter here:
The Chairman of the BOS believes that taking action that resulted in a significant decrease in take home pay for all of us and caused us to file two legal actions against the county is one of the major accomplishments of his terms in office.
This is the environment we are in. Our contract negotiations have never been about finances. Instead they are about politics. The sad fact is that the BOS does not care about us or our families, or the work we do for the county, but instead only care about scoring political points. But rest assured that we will continue to fight for what is right.
Scott Van Camp
Dear OCAA members,
Above you have been given a recitation of the facts of our current contractual situation authored quite nicely by Scott Van Camp. Scott explains that we told the BOS in March that we will take whatever legal action we can to fight their illegal imposition of terms and conditions. We have followed through. We have filed and are pursuing two actions: The first can be summarized as an “unfair labor practice.” This is a hearing in front of an administrative law judge to determine whether the parties have bargained fairly. The second is a Writ of Mandate in Superior Court here in Orange County for the county’s violation of PEPRA (Public Employee Pension Reform Act). This cause of action is specific to the imposition of the increase in pension contributions that we have all had heaped upon us last March.
From October 28th through the 31st, I had the “pleasure” of sitting through the PERB (Public Employees Relation Board) hearing. It was four days of testimony – two by me. Each side put on evidence of the negotiations and there was a lot of detail provided. In this case, the nuance of the negotiations are very important and much effort was made to demonstrate the county did not bargain in good faith. Because of nature of this case, it is impossible to summarize the evidence here. Suffice it to say, we are as confident after the testimony as we were before. The areas we tried to expose were regressive bargaining, changing spokespersons after an extended delay in bargaining that was caused by the county, failure to provide requested information, punitive terms, manipulation of the terms of the final offer, and other things as well. In fact, the insistence to impasse on the terms we contend were in violation of PEPRA can also be a charge of “unfair,” so that area was covered as well.
The remedy we are seeking from the PERB litigation is for the administrative law judge to find that the county engaged in bad faith bargaining. If he makes that finding, the imposed terms will likely be thrown out and we will be right back where we were prior to the imposition. One of the remedies we are seeking includes a refund, with interest, of the money that has been taken for the increase in retirement contributions. Also, anyone who has been given a review with steps attached will have to be redone. The process going forward is that both sides brief their final arguments. Simultaneous briefs will be filed with the administrative law judge on February 5, 2014. There is no set date for a ruling by the judge, but we are hopeful it will be in early spring.
On February 14th, we are set to have our “trial” in Superior Court. As stated earlier, this is limited to the PEPRA issue and is really an interpretation of the statute. There will likely not be any testimony taken in this case, as the facts on this issue are not in dispute.
Thank you for taking the time to read these two reports from your OCAA board. We are well aware of the financial burdens our members face as a result of the county’s actions, and we will continue to fight to protect all of us from those who seek political advancement at our economic expense.