The Non-Campaign Against Measure B

What if someone held an election and one side didn’t show up?

Well, that is happening in the ill-advised pension reform campaign called Measure B. While proponents are raising money to pay for the Mayor’s under-employed—yet now overpaid—political consultant, organized opposition to the measure has evaporated.

The reason is simple and economical. It doesn’t matter whether the measure passes or not, it is illegal and unconstitutional and nearly everyone knows it. The measure itself acknowledges the thin legal argument prepared by outside lawyers and the City Attorney has advised the City Council it is illegal.

So the opposition, including labor, police, and municipal employees, has decided not to waste precious campaign resources on this political contest. It is the fiscally responsible decision for them. Yet, it is unfortunate that San Jose residents will vote without critical information regarding the measure, as they will ultimately pick up the tab for this political folly.

Everyone recognizes pension reform must be addressed in the long term, though the immediacy of the problem has been clearly overstated for political reasons. The Mayor and many advocates of pension reform, while sincere, have simply proposed an untenable solution, and their insistence on moving the measure forward defies logic.

Both Chuck Reed and Sam Liccardo are good lawyers. They did not check their BAR credentials at the door when they took office. Neither can truly believe, from a legal standpoint, this is a good idea. The Meyers-Nave legal memo that notes the city has an “argument” is self-serving and nuanced solely to permit the ballot language to go forward, as the law firm has also been retained to make the legal “argument” upon passage of the measure. I don’t know a single attorney, myself included, who believes that argument can prevail based on precedent and merit. But the Meyers-Nave lawyers get paid either way.

Thus, the voters and taxpayers will be on the hook for all legal costs moving forward. If voters had this information, they might well avoid the inevitable waste of taxpayer dollars by defeating the measure. However, the current mantra of “pension reform” without context is an alluring message for an electorate that understands the problem needs a solution.

A defeat of Measure B would avoid a waste of taxpayer dollars and allow a real solution to be forged through collective bargaining. What’s more—the irony is that the leaders who are proposing the fix are many of the same people who helped cause the problem.

Reed has acknowledged he made a mistake in supporting exorbitant pensions in the past. Of course, when he was supporting the increases he was considered a champion of law enforcement.

In addition, Councilmember Pete Constant, a former cop who is leading the charge for pension reform, receives a disability pension along with his City Council salary. Double dipping?

And political consultant Vic Ajlouny, who has to date, siphoned over $40,000 from the “Yes on B” coffers was a lobbyist for the Deputy Sheriff’s Association and other law enforcement unions in his previous service. He championed the alleged outrageous benefit packages he now seeks to annul.

All good information for the San Jose voter. But alas, unless they all read this blog—highly improbably–Measure B will pass, the voters will be disappointed and ultimately fleeced by the ensuing legal bills.

Rich Robinson is a political consultant in Silicon Valley.

Rich Robinson is an attorney and political consultant in Silicon Valley. Opinions are the author’s own and do not necessarily reflect those of San Jose Inside.

43 Comments

  1. Rich,
    I received a NO on Measure B flier yesterday. I have received a ton of YES on Measure B fliers, and saw Mayor Reed’s YES on Measure B commercial on TV last night.

    I’m voting NO because I have read the measure and educated myself on the facts. Unfortunately, those who have not will vote yes.

    • I FIND THIS AMAZING THAT CHUCK + 5 KEEP ATTACKING PUBLIC SAFETY, WHEN IN FACT THIS MEASURE AFFECTS ALL CITY EMPLOYEES.  VOTES NEED TO CONSIDER THOSE THAT DO NOT COME CLOSE TO CHUCKS LIES THAT IMPLY ALL CITY WORKERS WALK AWAY WITH 100K AND FREE MEDICAL.

      DO THE FACTS, RESEARCH, MOST CAN BE FOUND HERE OR ON THE INTERENT BUT DON’T BE BLINDED BY ALL THE LIES.

  2. This is a great post that a lot of people will not see.  I am not a city employee, in fact I am trying to leave this city as soon as I can.  No one is arguing that pension reform is NOT needed, but the heavy handed tactics being taken by the Mayor, City Manager, and City Council is the wrong way to invite change.  Per the Mercury News, the unions have attempted at least twice to negotiate changes to the pension system, each time being met with a flat out refusal by the Mayor/council. Since the mayor has been trying to get this reform on the ballot since last year, why haven’t they taken the time to work with the unions instead of publicly demonizing them.  Also the hypocrisy that Pete Constant demonstrates in campaigning for this reform is laughable.  Under this reform that he is championing, he wouldn’t have even been able to retire on disability.  And I’m sure you won’t be hearing him complain too loudly when he starts receiving his pension from the PD……..and his Cal Pers retirement from being on the council. When this measure passes and it goes into the legal battle portion of it, I think we are going to suffer much more and lose more resources as residents.  Will city management then blame the unions again?  As a side note, I would be interested to see a freedom of information act request for all current legal and consulting fees being paid for by the city just to pass this illegal measure

  3. Dead on, thats the problem votes donoot reseach the facts.  Instead just listen to Chucks lies about gloom and doom instead of letting both sides get back to working this out.  But Chuck is hell bent on saying let the voters decide.  Hard to do when they don’t have the truth.

  4. Well said, Sir. 

    What I’m having trouble getting my mind around are these two things:
    1. Why do other media outlets refuse to publish/broadcast the truth about Measure B?  If one truly cares about the financial future of San Jose, it seems as though he/she would be furiously spreading the word.
    2. What do Reed, Constant, and the others stand to gain politically by barreling down this path?  I can’t see it ending well for them.

    Thank you for your thoughtful commentary on the pension reform issue over the last several months.  It is always refreshing to hear a voice of reason.

  5. I just got a flyer from the No side.  It encouraged me to go to http://www.sanjoseca.gov/salary/ to see how much our high-paid city administrators make.  Do they expect that folks won’t actually go to that site?

    Anyway, if you go to that site you will see that 2 police captains, a police lieutenant, 2 police sergeants, a fire captain and a battalion chief make more money than Ms. Figone, our city manager.

    I counted 46 people with total cash compensation higher than $200K.  80% of those people were police or fire.

    • What you don’t know is that the 2 captians, LT, and 2 Sgts retired and were paid all they were owed under the contract that they were employed under.
      In addition to their annual salary ans overtime, they had their unused sick leave, unused vacation and unused comp time bought out.

      Now yow know why they made more than the City Manager in 2011.

      • I understand “spiking”.  Are these folks going to make more than their regular salaries during their retirement?

        Talk all you want about Social Security, but most people will be lucky to get a 2K a month on Social Security and will have to wait until they are 67 years old to get it.  They don’t get to retire at 55 at more than their regular salary, and then go work for some other city and draw another salary.

        • According to:

          http://www.sanjoseca.gov/employeeRelations/retirementbenefits/reports/PoliceAndFirePensionYearsAnalysis.pdf

          The average base police pension (before COLA) for the years 2007-2012 was about $95.3k for an average 25.72 years of service.

          So let us say the average total compensation for a police officer is $100K.  If we input 26 years of service and $100k as final compensation this pension calculator:

          http://www.sanjoseca.gov/mayor/goals/budget/swf/SJPension_calculator.swf

          We get a pension amount of $74k.  To get a pension amount of $95.3k, the “final compensation” needs to be almost $129k.  This suggests to me that there is more than base pay in the “final compensation” amount used to calculate pensions.

          Can you provide back up your assertion?

        • I think you understand “spiking” the way that the merc/metro/SJI/Reed/Constant have explained it and that is not true – at least for San Jose Employees.

          To see fro yourself what “final compensation” is and whatis included in one’s “pensionable salary” for police and firefighters I will refer to the FAQ page for the SJ Police and Fire Retirement system.

          http://www.sjretirement.com/PF/FAQ/FAQ.asp#2011A

          It is pretty hard to “artificially” inflate ones salary at retirement age – there are NO 20-30 year cops in MERGE or on the horses (does HMU even exist? Reed cut that one too…its a collateral duty ) Maybe see on old timer on a motorcycle or in the bomb squad but those are very rare now and no, K9 handlers dont get “premium pay-” they get a stipend that only helps to pay for dogfood.

          One other thing… with the MAJOR VOLUNTARY paycuts police and fire have given the City in recent years and since “final Compensation” is base on ones “highest 12 consectutive months” – recent and near future retirements will be calculated on single years that occurrred more than 3 years ago.

        • The simple truth is nobody can convince you that what is being done to city employees is nothing more that union busting. I’ll bet that before the economy took a dump you didn’t give a dam or even a thought about police retirements, you just didn’t want to see a patrol car in your rear view mirror. Now that we have become scape goats for this mayor you figure you’ll take your shot. Just remember we’re not the only ones involved in this lie it’s all city employees.

    • S Randall, Mayor FIGONE’ gets HER UNUSED Vacation pay and sick pay paid TO HER EVERY YEAR at year end!! That’s why!!! Her PAYOUT is not accumulated over 25 years!!

  6. Eloquent prose.  Do you get paid by the word or the hour?  I’m wondering why someone would want to carry the flag for this obviously lost cause when it’s all just about paying folks too much money and lifetime pensions when it’s clear that folks are living way longer these days and it’s just a dumb idea to let them retire early and draw a pension for 40-50 years.

    • “it’s just a dumb idea to let them retire early and draw a pension for 40-50 years”.-Blair Whitney

        There is the root of the problem.  Its people like you, who think they control EVERY ASPECT of a City Employees life. That you can command what they do, when they do it and how to manage it without knowing what you are talking about.  This is the danger of letting uninformed, biased and hateful people vote on another persons ability to provide for their own families. You ignore the fact that these people are fathers, mothers, husbands and wives making a living for their families.  They are not just numbers in your political games.  They have the right to retire whenever they feel like it…..just like you do.

      • Watchdog,
        One important fact not being addressed here is that public servants like Police and Fire get injured very early on in their careers. Most of them don’t live 30-40 years to collect full pensions after retiring. (I’d love to see you and the Metro do a story just on this topic alone!)

        I know many young Police Officers and Fire Fighters with serious back, neck, and knee injuries. I find it appalling that Pete Constant gets disability and moves on to a higher paying position on the Council, and owns a business, yet wants to deprive his once fellow Officers the right to get the same type of financial relief he receives to support their families.

        Also, I have seen how much money is deducted from the pay checks of City employees. It is an outright lie that these public servants are getting more money than people in the private sector after they pay taxes, medical, and retirement. I can’t even understand how they are making it pay check to pay check! 

        This whole thing is screwed up if you ask me.

      • Actually back in the day when I was a city employee I volunteered to serve on the negotiations for a new MEF contract and I suggested that p/t workers like school crossing guards and such could benefit from a city provided medical plan that would help them supplement their access to exisiting medical care using the collective purchashing power of the city.  My co-workers though I was a nut for advocating for health care for uninsured or under-insured workers…but doesn’t everyone have a right to decent care at decent prices?

        • I think you are a nut too, but it is irrelevant to the point.
            So why on earth would you deny City Workers their right to a decent retirement, and decent health care?

    • Let them retire??? Didnt they serve The Community? Didnt they come when called? didnt they help keep you safe and/or alive . They did their time , they earned their benefit.Pension reform is absolutely needed ,but it must be done legally. the only winners here will be the Lawyers NOT the City workers and definetly NOT the residents of San Jose

      • Fair enough, a gradual 10 year shift to a new pension plan might work, but younger workers are still gonna get screwed in the process and be left footing the bill for others.  I think we can handle it though…

        • Blair,
          Younger workers are already getting screwed. I challenge you to go up to a young Police Officer, and/or Fire Fighter in ANY City, and ask them how many injuries they have suffered due to their career in the public safety field. Ask them how many co-workers died long before they collected their full retirement. Then ask them to tell you how much they earn AFTER deductions. I think you’ll change your view of things FAST, QUICK, and in a HURRY!

      • Disgusted in SJ: You are responding to a person who wants the overpass on Coleman torn down and new roads constructed because it is too difficult for him to pedal his bicycle from downtown to the shopping center at Coleman/Taylor and back home again.

    • You do know that Rich Robinson is a political constulant who is heavily aligned with the unions.  This is not unbiased information.

      • Did you know that the mercury news publisher is Chuck Reed’s brother-in-law? Or that the Merc has a rent free office in city hall staffed with writers who publish opinion pieces and not news (for example Scott Herhold?)

  7. Rich,

    One other fact the should be known is even if the next City council wanted the undo this measure, they won’t be able to. They will be handcuffed, literally! Because Measure B won’t let them make any changes without voter approval. They won’t be able to make changes to compete with other agency’s to attract qualified public safety officers, engineers and all the others that make up a City work force.

    Thanks to Chuck and his gang of 5.

  8. Mayor Reed goes to great lengths to claim that Measure B is reasonable “reform.” If that is the case, then why are  many San Jose police officers ready to head for the hills if Reed’s scheme is approved by voters this June? The simple answer is that Measure B will slash the take home pay of officers so badly that it will force many of them to leave the SJPD and take jobs with other agencies to earn a living wage. San Jose’s officers are already the lowest paid police in the bay area, and they pay more into their retirement than any other police agency in the region. Some people may think that officers leaving is to be expected and it won’t be that big of a problem, but when you lose 200+ officers in the next two years or less it will be impossible to replace them fast enough. The City is planning on having two police academies of 35 officers each completed by the end of 2013. With a recruit wash out rate of about 20%, this doesn’t come close to making up for that huge loss of man power. Since the SJPD is already below the minimum number of officers needed to police the city effectively, this will be a recipe for disaster. You may be thinking that there can’t possibly be 200+ police jobs out there. Just as an example, San Francisco PD alone is planning on hiring well over 200 officers in the next 2-3 years in order to replace an aging group of officers that will be retiring. They are heavily recruiting San Jose officers as we speak and have already hired five. They pay much more and have a good retirement plan. Other cities in the bay area also know that they don’t need to pay to hire and train new recruits because they will be able to draw on the highly trained San Jose officers that are ready to jump ship. Why hire San Jose officers and not train recruits? This is because San Jose officers are experienced and well trained. Fresh recruits in contrast cost approximately $150,000 per officer to hire and train. As of this writing, 53 officers have already resigned from the SJPD and moved on to some of these other police agencies. Of the 66 officers that were laid off last year, 30 of them declined when offered their jobs back. Add that to the 53 and you have 83 officers lost; 83 officers that the city of San Jose paid roughly $12,450,000 to hire and train.
    So what is the driving force that is causing this to happen? What is it about Measure B that is so horrible? In a nutshell, Measure B does not change a current officers’ pension; instead it makes the officers pay more of their salary into their retirement. In addition, San Jose police officers agreed to a 10% pay cut that began in July of 2011 and will be in effect at least until June of 2013. That puts the current take home pay reduction at 27.39%,  and it will bump up to 29.39% when the new fiscal year starts this July. That is almost a 30% pay reduction that officers are already going to be struggling with. Measure B will take even more. Specifically I want to point out sections 6(c) and 15(c) of the initiative. What those sections say is that current employees will be required to contribute either an additional 16% of their salary into their retirement, Measure B also calls for employees to pay for half the cost of retiree medical. For police, half of the cost is 16% of base pay. That would basically double the percentage that officers pay for retiree medical from 8.26% to 16%. The percentage that an officers’ pay would be reduced as of July of 2016 (This is before taxes     53%    As mentioned above, San Jose officers voluntarily gave up 10% of their pay at the beginning of the 2011-12 fiscal year. The City has stated that they want this pay cut to be on-going. Because of this, I am assuming this 10% cut will still be in effect come July of 2016. San Jose Police Officers would go from having their pay reduced by 12.96% in 2009 to 53% in 2016! Now Mayor Reed and his supporters on the city council like to say that city employees can avoid having all this extra money taken out of their checks by opting in to the “VEP” (Voluntary Election Program). But they always forget to mention that the VEP does not exist yet, and probably won’t exist for a long long time. Section 7 of Measure B talks about this VEP that employees could theoretically opt into. It is a retirement plan that reduces the benefits employees accrue going forward. The city says if employees opt into this VEP plan they can avoid having all that additional money taken out of their checks. BUT………it states in the second sentence of that section, “The implementation of the VEP is contingent upon receipt of IRS approval.” Well, San Jose has not received that approval. In fact, Orange County (among others) has been trying to get IRS approval for their similar plan for four years without success. Most legal experts say that getting such approval is unlikely since it would involve changing the federal tax code. Changing the tax code means the U.S. Congress must get involved. In other words, the city will be attempting to force its employees into a VEP that does not and will not exist. Since there is no VEP, all city employees will have to choose between having their take home pay drastically cut, or resigning. Mayor Reed constantly says these reforms are “reasonable”. But he will not break it down and show the public these numbers and facts because he knows the majority of people would not support it. How could anyone think that taking 53% from an employee’s paycheck is reasonable?  He knows that because Measure B is long and complicated, most people will not take the time to read it. So the public remains uninformed. They appear to be about to vote yes on something that will drive San Jose police officers to other agencies much faster than the City will be able to hire and train replacements. The intent of Measure B is to restore city services including public safety. But it will do just the opposite.Damain Bortolotti is a San Jose Police Sergeant

  9. Did Victor Ajlouny get 40,000 for calling up Milpitas workers and threatening them, as well as directing the Milpitas recall?

  10. I am sure that the Mayor will blame the cops for the wasted millions of taxpayer dollars in legal fees when the measure is overturned instead of taking responsibility.  What a waste of money!

  11. @Marie—Perhaps because you are not a city employee you are unaware that Pete Constant started receiving his “disability” pension immediately upon his separation from city service. Despite his being healthy enough to continue working as a photographer, a business he started while still a police officer, Pete was granted a pension equal to 50% of his final year’s salary (a year in which he most likely was too disabled to come to work, but not so disabled that he had to close his photography business). Now understand this, though Pete earned a 2.5% credit towards retirement per year, he was awarded 50% not because he’d accumulated that number of credits (20 years x 2.5% = 50%), but because of the disability system was designed to be fair and compassionate to officers legitimately disabled. Pete, like a good many others before and after him, took advantage of the respect (for the job’s hazards) built into the system and faked his way to a tax-free paycheck (plus generous retraining benefits), thus gaining membership into a group that is reviled by every cop who truly respects himself and the job. Pete respects nothing except what’s good for Pete.

    @S Randall—If you’ve decided to vote yes on a measure that is unlawful (as decided in an Orange County case), wasteful of taxpayer dollars (legal fees), and grossly unfair to the people who put their lives on the line for this city, simply because of what you (and many others) see as the excess compensation of a few at the top, then feel free to use your vote to ventilate your frustration. But if you do, then you should understand the true price of that refreshing vote: the measure will not stand up in court, the police department will be further damaged, line officers and supervisors (who are not overpaid) will be put in debilitating financial limbo, and the problems with the pension, which can be repaired through negotiation, won’t be.

    @Blair Whitney—There may be a few retirees who lived forty years after putting in a full career, but no more than a few, raising the question: why the need to exaggerate? The pension worked flawlessly for 50 years, so obviously the number of service years can’t be the problem. Besides, the thirty year cap on a career is based on the limitations of what can be expected from the human body, limitations of two types: physical and psychological. For line personnel, the nagging injuries and normal wear and tear on the bodies of those lucky enough not to have been seriously injured will leave the majority of them physically unsuitable for the job after three decades, while the experience of spending a career with the worst of the public will likely leave them drained of their once considerable compassion, concern, and commitment. Take note: very few of the baseball players so coveted by our mayor can make their bodies last fifteen years playing a game in safe conditions and under the care of a top-notch medical and fitness staff, yet you and Mr. Reed apparently equate sound fiscal management with sending 65 year old cops out to battle gang-bangers. If our mayor cared as much about the safety of this city as he does about boosting his political career as a union buster who bagged a big league baseball team, the pension problem would be solved tomorrow—through negotiations.

    • Frustrated FinFan, I may not be a city employee but I am well aware of Mr. Constant’s “abuses” of the system as I pointed out, I just may not have worded it to your liking.  Sorry about that, but save your venting for someone who does not support your arguement. Speaking of Mr. Do As I Say Not As I Do Constant, I got his Measure B flyer today with his and Reed’s smug mugs on it.  I used it to pick up after my dog since I’m running low on plastic bags. Another irony about this whole Measure B that has to deal with cuts to city services….the president of the Chamber of Commerce (one of the PACs supporting this measure) doesn’t even live in the city of San Jose.  Must be nice to support a change that doesn’t affect you or your family.

      • “Speaking of Mr. Do As I Say Not As I Do Constant, I got his Measure B flyer today with his and Reed’s smug mugs on it.  I used it to pick up after my dog since I’m running low on plastic bags.”

        Marie, I nominate the above for “Best of SJI, 2012.”  Thanks for the belly laugh and smile!

    • Speaking just for myself, I think voting on this measure is a way to register what you want.  The Mercury News isn’t endorsing council candidates purely because of their stand on this issue.  A vote for or against Rose Herrera may be based on other things or other issues.

      As for the courts, I think they are there to be used.

    • @frustrated finflam:  Medical tech has extended the life expectancy for folks these days so that instead of passing away in your 60’s or 70’s you live into the 80’s or longer.  Agree, there’s no reason a man or women in uniform should have to put in more than 30 years on the hard job of protecting the public.

      Real problem is that health care costs for retirees and a fixed pension require more investment than the city and employees have been making and there’s kind of a balloon in costs as we catch up with the liabilities while trying to fund the costs for current and future retirees

    • As usual, very articulate and well written. Your facts are painfully correct. For the life of me I do not understand why citizens and the media give a free pass to Pete Constant, who is the ultimate hypocrite.

  12. S Randall:“As for the courts, I think they are there to be used.”
    Used as anyone sees fit? Regardless of legal ground? Is this why we have frivolous lawsuit protections?

    What is the citizens remedy when the court finds Reeds plan unenforceable and illegal?
    Answer: pay the lawyers at Meyers Nave law firm.
    Your taxes just went up. Why? Because the courts were “USED”
    Vote your frustrations away but you’ll have no voice when it comes to righting this wrong.

    • The outcome is not certain.  If it were, you wouldn’t be so hot and bothered.  You’d be chilling by the pool with a cold one.

      Let the process play out.  I’m not sure this is necessarily a monolithic issue.  You may win some, you may lose some.

      • If I did not truly care about San Jose and it’s resident tax-payers, I would be chilling by the pool.  I invite any attorney (not from City Council or Meyers-Nave) to post an argument for the legality of Measure B.  I have personally asked more than a dozen, not one of whom believes it has a snowball’s chance.  The case law is overwhelming.