Fellow OCAA members,
The OCAA Board would like to provide an update on the various litigation we are conducting against the County as a result of it imposing terms and conditions of employment on us in March 2013.
As you know, in April of this year we won our trial in front of a PERB Administrative Law Judge when the Judge found the County negotiated in bad faith. As a result of that finding, the Judge ordered the imposition rescinded, that all of us be made financially whole by the County for the losses we incurred as a result of the imposition, and that we receive 7% interest on those losses. Unfortunately the County decided to appeal that decision to the PERB Board. Because the County appealed, the Judge’s decision is essentially stayed pending the outcome of the appeal. The County has filed its opening brief and we have filed our reply brief. We told you a few months ago that our lawyer estimates it will take about one year for the PERB board to issue its decision. Thus at this time we expect the PERB Board decision will be issued some time towards the middle of next year. Please note there is nothing OCAA can do to expedite this process. But in the meantime, the money the County owes us from the decision continues to grow, and we continue to earn 7% interest on that money. We are very confident the County is not going to win on appeal.
As you also know, separate from our PERB litigation, we filed a petition for writ of mandate in the OC Superior Court that challenged the pension contributions from the imposition. Unlike the PERB action, which challenged the entire imposition, the PEPRA action was based exclusively on the pension contributions and was based on PEPRA, which went into effect on January 1, 2013. In a previous update we indicated that OCAA was considering continuing or dismissing this action based on our PERB win. However, because the PERB Judge’s decision was expressly not based on PEPRA, we decided to go forward on this action because it would not effect our PERB decision. As will be explained below, that was a good decision.
In a nutshell, we had two arguments in this action: (1) Imposing increased employee contributions is illegal under PEPRA until 2018; and (2) Imposing employer contributions (the reverse pickup) is illegal under PEPRA ever.
The case was decided by Judge Colaw, and his opinion in the matter is attached. Judge Colaw ruled against us in our first argument, finding that PEPRA did not prohibit the County from imposing increased employee contributions. While we are disappointed we lost this argument, in reality it has no financial effect on us now because we already won this money back in our PERB case.
As to the second argument, we partially won. It gets a bit complicated, but the reverse pick up we currently pay has two components: (A) past service liability, which is the retroactive cost of the 2.7 at 55 we agreed to pay when we got 2.7 at 55; and (B) the County’s prospective cost for 2.7 at 55, which is the difference in cost to the County between our old pension and 2.7 at 55, something we also agreed to pay when we got the pension. Judge Colaw found that we agreed to pay (A) for 30 years when we got 2.7 at 55, so it was ok for the County to require us to continue to pay the past service liability portion of the reverse pickup. However, Judge Colaw found that we won (B), meaning that it was illegal for the County to force us to pay the County’s prospective cost portion of the reverse pick up.
To try to simplify this, we believe the current total cost of our reverse pick up (meaning what the County is taking out of our paychecks every two weeks), is 5.71%. We believe the past service liability portion of the reverse pick up is 2.22%, and the County’s prospective cost is 3.49%. Thus, based on Judge Colaw’s ruling, the County has been illegally taking 3.49% of our paychecks since March 2013 (the date of the imposition).
Judge Colaw’s ruling is not yet final. The proposed judgment by the County is attached, and Judge Colaw has to determine the wording of his judgment. While we agree with the portion of the County’s judgment that indicates it will make our members financially whole on this issue going back to the imposition, the County’s proposed judgment does not indicate the County has to pay us interest on that money. We will be filing an objection to the judgment that specifically asks for 7% interest on that money. As soon as Judge Colaw issues the final judgment, we will let you know. We also do not know right now if the County is going to appeal this decision.
Earlier this year we filed another unfair labor practice charge against the County in PERB related to the health care changes that were part of the County’s imposition. Even though the health care changes are part of the imposition and thus contemplated in our PERB win, we filed this action because with respect to health care changes the County was not even following its own imposed terms. The imposed terms state that we would receive the health care changes after more than 50% of all County employees agreed to the health care changes. However, the County gave us the health care changes well before 50% of all County employees agreed to them. PERB issued a complaint against the County (meaning that PERB found we made a prima facie case for relief), and the matter is set for trial in November.
We also recently filed another unfair labor practice charge against the County based on the County adopting “COIN” which stands for Civic Openness in Negotiations. You can read about this ordinance and the effect it will have on our negotiating with the County online. We filed the complaint because we believe the County was not permitted to enact this ordinance without meeting and conferring with us about if first, something it refused to do. PERB has not yet acted on this charge and we will update you when it does.
Between the PERB win and the PEPRA win, right now the County owes each of us more than 10% of our salaries plus 7% interest going back to March 2013. For those of us who also suffered financial loss due to the step raise changes and health care changes, the County owes us even more. OCAA sincerely hopes the County will agree to bargain in good faith and compensate us fairly. But unless and until that happens, OCAA will continue to vigorously fight for our rights.