County Can Bargain Over Union's Support For Binding Arbitration Initiative

In DiQuisto v. County of Santa Clara (here), the Court of Appeal held that Santa Clara County did not violate Stanson v. Mott, 17 Cal. 3d 206 (1976), and its progeny, when it negotiated with a couple of employee unions over their potential support for an initiative that would have imposed binding arbitration on the county. The court held that the arbitration initiative was a permissible subject of bargaining under the Meyers-Milias-Brown Act, and that the county's discussion of the measure in collective bargaining was not impermissible electioneering.

One interesting fact about the case is that the parties spent a lot of time at trial trying to prove, or disprove, whether the county offered higher wages as a quid pro quo for the unions' "political silence" vis-a-vis the initiative (which failed at the ballot box). The trial court held that there was no quid pro quo, a finding which the court of appeal held was supported by substantial evidence. But why would it matter? If the initiative was a permissible subject of bargaining, as the court (correctly) held, the county can bargain about it, and quid pro quos, perceived or real, are part and parcel of the bargaining process. Focussing on the quid pro quo issue, while superficially appealing, seems to be a distraction from the real, and much more interesting, issues at stake.

No Right Of Access To School Teacher Mailboxes

In San Leandro Teachers' Ass'n v. Governing Board (here), the California Supreme Court unanimously held that a school district may constitutionally exclude from the district's internal mailbox system communications from a teachers union supporting specific candidates in a school board election. The union acknowledged that it had no right of access to the mailboxes under the First Amendment, in light of Perry Education Association v. Perry Local Educators Association, 460 U.S. 37 (1983), one of the United States Supreme Court's earliest "nonpublic forum" cases. However. it urged that a different result should follow under the California Constitution's free speech clause, Article I, Section 2.

The Court disagreed. The Court did not make clear whether the three-tiered approach to public forum cases adopted by the United States Supreme Court is part of California law. Nor did it expressly disavow the "basic incompatibility" test adopted in U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory, 154 Cal.App.3d 1157 (1984). Instead, it simply held that "this prohibition on the use of government resources for political campaigning is a means of promoting an important government interest, i.e., maintaining the integrity of the electoral process by neutralizing any advantage that those with special access to government resources might possess."

As this quotation illustrates, the Court was obviously influenced by its prior decisions in Stanson v. Mott, 17 Cal.3d 206 (1976), and Vargas v. City of Salinas, 46 Cal.4th 1 (2009), which at least in part preclude the use of public resources to influence political campaigns. Yet the court also held that the school district's regulation was not statutorily compelled. It will be interesting to see what happens if a school district permits such communications and the union's disfavored candidate goes to court. The Vargas decision is discussed here.)

Supreme Court Clarifies Limits On Government Speech

In Vargas v. City of Salinas (here), the Supreme Court has clarified the permissible limits on government speech regarding a proposed local initiative. After voters put an initiative repealing a local utility users tax on the ballot, the City Council adopted an alternative budget showing the service cuts that would be made if the initiative passed. It also made a one-page summary of the alternative budget available in places such as public libraries and described the budget in a quarterly newsletter sent to the voters approximately a month before the election. The Supreme Court unanimously held that all these activities were permissible.

Several aspects of the decision are noteworthy. First, the court held that public agencies can file an anti-SLAPP motion. Second, the Court rejected the Court of Appeal's holding that election-related speech by a government is only impermissible if it expressly urges the adoption or defeat of a specific measure. Third, the Court made clear that its earlier decision in Stanson v. Mott, 17 Cal. 3d 206 (1976), "does not preclude a governmental entity from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure." Fourth, and finally, the Court held that the "potential danger to the democratic electoral process to which our court adverted in Stanson is not presented when a public entity simply informs the public of its opinion on the merits of a pending ballot measure or of the impact on the entity that passage or defeat of the measure is likely to have. Rather, the threat to the fairness of the electoral process to which Stanson referred arises when a public entity or public official is able to devote funds from the public treasury, or the publicly financed services of public employees, to campaign activities favoring or opposing such a measure." Accordingly, governments may not fund campaign activities such as radio spots and bumper stickers; however, disseminating the government's view of a measure may be permissible if it is done in a factual, and not advocative, way.