Employee Organization Announces New Phase Of Lawsuit

JUDGE REJECTS AMENDED COMPLAINT...
The Orange County Employees Association (OCEA), which represents the Costa Mesa City Employees Association (CMCEA) in its lawsuit against the lawsuit filed against the City of Costa Mesa for what they contend were illegal layoff notices sent to more than half the CMCEA membership over two years ago, has announced a new phase in that lawsuit.

...LEAVES DOOR OPEN FOR AMENDMENT
According to a press release issued today, the full text of which is below,  the current judge handling the lawsuit, Judge Luis A. Rodriguez, issued a qualified rejection of an amended complaint filed by the CMCEA, but also allowed the employees to amend their complaint.  The ruling also vacated the January, 2014 trial date and established a Case Management Conference in December.

TEXT OF PRESS RELEASE

Costa Mesa enters new phase of outsourcing litigation

COSTA MESA As one of the first actions marking a new phase in the litigation between Costa Mesa employees and the City of Costa Mesa since the City withdrew layoff notices to more than 200 employees earlier this year, a Superior Court judge this afternoon issued a qualified rejection of an amended complaint filed by the Costa Mesa City Employees Association.

But Judge Luis A. Rodriguez also allowed the Employees leave to amend their complaint to allege additional facts about the City’s outsourcing plans that have occurred over the past several months.

Today’s action marks a new phase of the ongoing litigation, as the Court decides how to address the outsourcing issues in the wake of the City rescinding pink slips for more than half of its employees.

The Costa Mesa City Council majority in March 2011 first issued more than 200 pink slips to employees as part of their desire to privatize City services. In June 2012, Superior Court Judge Barbara Tam Nomoto Schumann issued a preliminary injunction blocking the City from outsourcing to the private sector.

The City appealed that decision, and in August 2012, the Fourth District Court of Appeals rejected the City’s request in a lengthy opinion, which the Court later published.

The City rescinded the pink slips earlier this year, so CMCEA agreed to dissolve the preliminary injunction. CMCEA filed and amended its complaint to reflect the changing circumstances and articulate the City Council’s ongoing efforts to outsource City services.

Attorneys for CMCEA will now prepare and file an amended complaint consistent with the Court’s order and comments from the bench. CMCEA will continue to protect the legal rights of its members and require the City through the Court to comply with the restraints on outsourcing municipal services confirmed in last year’s Court of Appeal decision.

The Court also vacated the January 2014 trial date and set a Case Management Conference for Dec. 11, 2014.

SOME HISTORY

Some will recall that the Jim Righeimer-led city council violated their own council policy when they issued invalid layoff notices to more than 200 employees two and a half years ago - a move that was punctuated by the unfortunate suicide of young Costa Mesa maintenance worker, Huy Pham, who leaped to his death from the roof of City Hall.

 RELATIONSHIP HAS FURTHER DETERIORATED

This event was to become the bellwether of things to come in Costa Mesa, where the relationship between the elected leaders and the city employees has - as unimaginable as it might seem - gone downhill since then.  Recently the mayor and mayor pro tem has sued the members of the Costa Mesa Police Officers Association, accusing them of placing them - the elected officials - in such a fragile mental condition that they have had to seek medical attention and have suffered loss of income.  And yet, they continue to show up and inflict further damage to the city in their fragile condition.

LOSS OF VALUABLE EXPERTISE

I have no idea how the lawsuit will turn out, but the employees continue to fight for their rights against an administration that has created a toxic workplace for most employees to the extent that we have seen many seeking jobs in other municipalities rather than remain in our city. 

UNABLE TO MEET SERVICE DEMANDS

This bogus plan is finally coming home to roost, though.  City CEO Tom Hatch announced a $7 million budget surplus at the last council meeting, then followed up by also announcing that the city is unable to provide the level of service expected by the residents and necessary to keep the business of the city running properly, so an increased recruitment effort to fill the 44 authorized, open vacancies will be undertaken immediately.  We presume that includes the many vacancies in the police ranks, although the hiring process for those positions can take a year or longer.

INCOMPETENT LEADERS

The current elected leadership of our city - specifically Mayor Jim Righeimer and Mayor Pro Tem Steve Mensinger - have demonstrated over and over again that they are incompetent to manage our city.  Their priorities are clearly out of line with wishes and needs of the residents.  They place filling potholes well ahead of providing a safe city for residents, visitors and businesses - and crow about it, too boot.

FAILURE AND BANKRUPTCY

They have created an environment where corruption can thrive and rules designed to protect our precious municipal assets are routinely ignored.  These men pontificated about running our city like a business, but apparently neglected to tell us they meant failed businesses.  They are responsible for racking up millions of dollars in legal fees to defend their actions - all straight from city coffers.  They seem on course to saddle our city with municipal bankruptcy - going so far as to have one of their hand-picked committees receive a municipal bankruptcy workshop -  to fulfill their goals of busting employee organizations.  They have demonstrated, by their actions, a cavalier disregard for the well-being and reputation of this city - placing it a distant second to their personal political goals.

WAKE UP, VOTERS!

One can only hope that a slumbering electorate will finally be shaken awake and begin paying attention to the damage these men are doing to our city and make the changes in the voting booth necessary to restore this city to it's position as a city to be admired for its accomplishments, not ridiculed by neighboring leaders.

Employee Association Pledges Cooperation With City

EMPLOYEE ASSOCIATION RESPONDS TO JAIL OUTSOURCING
In a press release issued late Friday afternoon responding to the decision last Tuesday by the Costa Mesa City Council to move forward with outsourcing city Jail services to civilian contractor G4S, Orange County Employee Association (OCEA) spokesperson Jennifer Muir pledged to "engage the City in what we hope will be positive and productive discussions, and we hope those discussions can remain out of the courtroom."  You can read the full text of the press release below. Click on the image for easier reading.

CMCEA PRESIDENT'S LETTER TO HATCH
It was accompanied by a letter from Helen Nenadal, President of the Costa Mesa City Employees association (CMCEA), to Costa Mesa Chief Executive Officer Tom Hatch expressing her gratitude to his role in attempting to find a workable solution to this issue.  Her letter is below.

ONLY TIME WILL TELL..
It's going to be very interesting to see how this plays out.  If, in fact, the City does as it has committed to doing - insure a smooth transition for the Jail employees, regardless which direction it take them - then it may turn out to be the best solution in a difficult situation for the individuals.  It is possible that some of the employees may remain working in the Jail, but as G4S employees.  It's also possible that other positions within the City government will be identified for them.  We'll know the answer to that question within the next few weeks.

Judge Denies Employee's Request

JUDGE RODRIGUEZ SAYS "NO"...
In a press release a few minutes ago the City of Costa Mesa, HERE, announced that Judge Luis Rodriguez denied a temporary restraining order request by the CMCEA to block the City Council from voting tonight to outsource its jail operations.

CMCEA JUMPED THE GUN
According to the press release, "Judge Rodriguez said the City Council would have to approve a contract with a private company to take over jail operations before he could weigh the merits of the employees' association request."

ITEM WILL REMAIN ON THE AGENDA
So, apparently the item will remain on the agenda tonight - LATE tonight - and this drama will have to play out after the vote is taken.

OCEA WILL WAIT AND SEE...

Jennifer Muir, representing the Orange County Employees Association (OCEA), which provides legal help to the CMCEA, confirmed the comment from the City press release and indicated that they will wait to see what happens at the City Council meeting tonight on this subject and that their goal will be to have the Preliminary Injunction reinstated.  There was no one from The City available for comment at press time.

Employees Take Costa Mesa To Court - Again

 CMCEA TRIES TO BLOCK JAIL OUTSOURCING
The City of Costa Mesa announced late this afternoon that the Costa Mesa City Employees Association (CMCEA) is scheduled to appear in California Superior Court tomorrow, Tuesday, June 4th, in an attempt to block the City's proposal to outsource the Jail Services operations.  You can read the text of the City's announcement HERE.

ON THE AGENDA TOMORROW NIGHT
You will recall that I posted the City Council meeting agenda summary that included the item in which the outsourcing of the Jail operations to G4S will be considered.  You can read the staff report on that issue HERE.  This was to be considered very late on what is already a very, very packed agenda.

ASKING FOR A TEMPORARY RESTRAINING ORDER
According to Jennifer Muir of the Orange County Employee's Association, which represents the CMCEA in these legal matters, the purpose of the court date tomorrow is to request a Temporary Restraining Order (TRO) to keep the City from moving forward with the the Jail Outsourcing and, ultimately, to reinstate the Preliminary Injunction that they agreed to vacate earlier this year.

AS IF WE NEEDED MORE DRAMA TOMORROW!
This will add even more tension to a meeting guaranteed to be full of it, so to speak.  As they say when they run they present the Costa Mesa Minute, "There's always something happening in Costa Mesa."

California Supreme Court Rules Against Costa Mesa

SUPREME COURT SAYS NO!  TWICE!

In a press release this afternoon the Orange County Employees Association (OCEA) announced that the California Supreme Court today "denied the City of Costa Mesa's attempt to overturn the injunction blocking the City from laying off more than 100 City employees and outsourcing their jobs to the private sector."

"DEPUBLISHING" REQUEST DENIED, TOO
The Court also denied the request to depublish the Appellate Court opinion upholding the preliminary injunction, which apparently means that many California cities now find themselves on the horns of a dilemma.  As we understand previous information on this issue, this may mean that many California cities are now in violation of the law regarding outsourcing city operations.

A BIG PROBLEM!
Both the League of California Cities and the Association of California Cities Orange County had joined the petition to the Supreme Court on the depublishing issue.

CITY RESPONSE NOT AVAILABLE
Calls to city officials had gone unanswered by the time I decided to publish this information.  As I get more information I'll update this entry.  Check back later.

PRESS RELEASE BELOW
The OCEA press release follows:  (click on image to enlarge)

More Complications For City With CMCEA Lawsuit (Updated)*

RULING TO BE PUBLISHED
In a press release today, Jennifer Muir, Assistant General Manager of the Orange County Employees Association (OCEA) announced that "the Fourth District Court of Appeals has granted a request by the Costa Mesa City Employees Association (CMCEA) to publish its recent decision upholding the trial court's preliminary injunction blocking the City from outsourcing to the private sector."  You can read the entire press release below.  (Click on the image to enlarge it.)

GET READY FOR THE RANTS
I suspect this ruling may be red meat for the Jim Righeimer Charter crowd, since is specifically mentions that Costa Mesa is a General Law city.  You can expect any number of rabid Charter supporters to leap forward and begin to rail about how terrible this is, and that it wouldn't happen if Costa Mesa was a Charter City.

NO COMMENT FROM THE CITY SO FAR
I tried to get a comment from the City on this issue.  I wanted to know how this ruling may affect their request/demand to the CMCEA to permit the outsourcing of the Jail operations to a private firm.  As of press time nobody has yet responded.  When they do I will amend this report to reflect their position.


  

*THE CITY RESPONDS...
Late this afternoon Bill Lobdell, Communication Director for the City of Costa Mesa released a short statement.  He attributes this statement to Richard Garbowski, special counsel for the City of Costa Mesa - he works for Jones Day:

“The City is pleased that the Court of Appeals published its decision re-affirming the City's right to outsource services. The Court of Appeal confirmed explicitly that Costa Mesa City Employees Assn. cannot 'veto' the outsourcing of City services pursuant to its agreement with the City. The City intends to move forward in full compliance with the Court’s decision and its contractual obligations when it outsources the City's jail operations, which will save taxpayers more than $3 million over the next five years.”

I don't know about you, but this statement seems contradictory to the statement from the OCEA and the ruling provided to us.  I guess we're going to find out if this will mean EVEN MORE $495 per hour lawyers trying to sort it out.

Hatch "Clarifies" His Memo

HATCH ATTEMPTS TO CLARIFY HIS MEMO
Shortly after lunch today Costa Mesa City Chief Executive Officer Tom Hatch sent out the following message to all employees:

From: HATCH, THOMAS
Sent: Friday, September 14, 2012 1:19 PM
To: CITY-ALL
Subject: Speaking at City Council Meetings

Recently, I sent a memo to employees concerning state legal guidelines for involvement in elections/campaigns by City staff.  An employee had a question about whether it is legal to speak at City Council Meetings.  The clear answer is yes but the employee must be off duty and not be in a City uniform.  The intent with not speaking at an “official City meeting” relative to elections/campaigns was intended to address personnel participation while on duty, on paid City time including breaks and/or in uniform.  This point was not intended to be while on one’s own personal time. 

I don’t apologize for sending the memo, however I apologize for any confusion it may have caused.  The upcoming election will likely be very difficult and our role, while on duty, is to professionally and fairly facilitate the process and not be engaged in the process.  Everyone will be watching what employees are doing but even if they weren’t, the right thing to do is to follow the law and not put our professional credibility at risk.  

NOW YOU HAVE KINDA FREE SPEECH
So, I guess that means that employees MAY stand before the council at meetings and ask political questions, but not in uniform and not while on duty.  That means Helen Nenadal, President of the Costa Mesa City Employees Association, will have to change her work shirt with city logo if she plans to address the council on "political issues".

NO ANSWER TO MY MEMO
Hatch has still not replied to my memo to him on the 11th in which I asked him several questions, including the one he just answered.  Remaining unanswered are:

1) What is the penalty if an employee refuses to sign the form?
2) What is the penalty if an employee is observed violating the guidelines?
3) As "guidelines", does he believe his memo has the power of "rules"?
4) Was answered above
5) Does the list of "guidelines" apply to council members, too, since they are city employees?
6) How does he plan to enforce the "guidelines".  For example, his prohibition on the use of the City's wireless network.  How will that work?  Will he have a cadre of roving monitors prowling the corridors of City Hall, peeking over partitions and through windows to observe employee activities?
7) How will he enforce his prohibition on employees speaking to each other during work hours?  Will he use that same cadre of monitors?
8) How does he square his prohibition on employees expressing views on, for example, Jim Righeimer's Charter - which he cites as a misuse of  public funds (the staff time) - when VERY significant resources have been spent, and are being spent, to promote it?

 DON'T REALLY EXPECT TO HEAR FROM HIM
I don't really expect to hear from him on these issues, which is pretty disappointing.  I'm a 39-year resident and taxpayer - one of the few who actually pays attention to what's going on in the city - so I kind of thought he might respond.  I guess not.  Perhaps, if he did so he would be actually violating his own rules.  He is, after all, an employee and my memo to him had a very definite "political element" to it.  If that's the case, I guess we can't expect him to discuss anything about Jim Righeimer's Charter or anything else political until after the election, right?

NO WORD FROM THE OCEA
Also unknown is the reaction to Hatch's "clarification" from the Orange County Employees Association.  We do know they were NOT happy with the original memo.  I guess we'll hear about that soon enough.

City Responds To Appeals Court Decision

CITY RESPONSE...
As discussed in the previous entry, the Fourth District Court of Appeals today affirmed the preliminary injunction imposed by Judge Barbara Tam Nomoto Schumann.  At the time of that post I had not heard from the City on this issue.  

$495 PER HOUR LAWYER OPINES
Shortly after 2:00 p.m. today Communication Director Bill Lobdell issued the following statement:

A statement by Richard Grabowski, special counsel for the City of Costa Mesa, on the Court of Appeals ruling today that upheld a preliminary injunction preventing the City from outsourcing services to private companies until a lawsuit filed by the Costa Mesa City Employees Assn. is heard in court.

"We are looking forward to proceeding to trial. There is nothing in the court's opinion today that precludes the city from ultimately outsourcing once the trial court has had an opportunity to review all of the facts."

Then, about 90 minutes later he followed up with this statement:

After reviewing the Court of Appeals ruling today, Richard Grabowski, special counsel for the City of Costa Mesa, had this statement:

"The Court of Appeal's decision today recognizes that Costa Mesa has the authority to contract out jails, payroll and special services, and has remanded the case to the trial court for a trial on the merits. As the contracting out of these services is the fiscally prudent thing to do, the City looks forward to having its day in court on those issues."


 

 CAN'T FIND HIS AUTHORITY...
Subsequently I spent a good amount of time reading through the actual opinion by the Court, trying to find the basis for Grabowski's final statement - and failed.  Nowhere in the document produced by the Appeals Court do I find authorization to contract out jails, payroll and special services with the injunction in place.

 THE METER KEEPS ON SPINNING
So far, in Fiscal Year 2011-2012 with additional charges still pending, Mr. Grabowski's firm - Jones Day - has billed the city for over $999,000 dollars.

COURT OF APPEAL DECISION
The actual document from the Fourth District Court of Appeals begins with the following statement:

THE BEGINNING
"Plaintiff Costa Mesa City Employees' Association (CMCEA) represents workers who are employed by the City of Costa Mesa (the City). In response to the City's plan to contract out for a variety of city services, CMCEA filed suit against the City and its Chief Executive Officer Thomas Hatch (collectively defendants) for injunctive and declaratory relief. CMCEA contends the City's proposed outsourcing plan violates state law as well as the parties' collective bargaining agreement. Trial on the matter has not been heard, but on July 15, 2011, the trial court granted a preliminary injunction enjoining defendants from contracting with a private entity for any of the services that are performed by CMCEA members or laying off CMCEA members as a result of such contracting. In this appeal, the sole issue is the propriety of the preliminary injunction. Defendants contend it was improvidently granted, but we disagree and affirm the trial court's ruling."

LOTS OF CITATIONS
In between there are 20 pages of information, case citations expansions of their views which, over and over again, support the need for the preliminary injunction.  At the end the judges conclude with this segment.

THE END
"At this point in the controversy, however, we are convinced CMCEA's members would suffer irreparable harm in the absence of a preliminary injunction, there is “some possibility” they will prevail on both their contract and statutory claims (which are independent grounds for relief), and the relative harm to the parties favors preliminary relief. Therefore, we will not disturb the trial court's decision to grant a preliminary injunction in CMCEA's favor."

Read the full Appeals Court Opinion HERE, thanks to the Daily Pilot.

DOOR SLAMMED ON MOST OUTSOURCING
So, now we wait until this case actually goes to trial.  And, as I read the court's document today, the City MAY NOT proceed with any outsourcing that is not with another government agency.  That means the Jail, for sure.  We may hear more from contract City Attorney Tom Duarte at the council meeting scheduled for next Tuesday, August 21st.

Injunction Blocking Layoffs And Outsourcing Upheld!

FOURTH DISTRICT APPEALS COURT RULES
According to a press release issued just after noon today by Jennifer Muir, Assistant General Manager of the Orange County Employees Association (OCEA), the "Fourth District Court of Appeal has upheld a preliminary injunction blocking the City of Costa Mesa from laying off more than 100 employees and outsourcing their jobs to the private sector"

"HUGE MORALE BOOST"
Muir's release quotes Helen Nenadal, president of the Costa Mesa City Employees Association (CMCEA) as saying, "This is a huge boost for employee morale during a dark period in Costa Mesa's history."

 JUDGE SCHUMANN'S INJUNCTION AFFIRMED
You will recall that Superior Court Judge Barbara Tam Nomoto Schumann issued a preliminary injunction blocking the City from outsourcing to the private sector.  It was not precluded from shifting jobs to other government agencies, however.  The City appealed that decision to the Fourth District Court of Appeals, which affirmed Judge Schumann's order in its entirety. 

BACK TO COURT - LEGAL BILLS PILING UP
This means we go back to court sometime in the near future.  In the meantime, the legal bills just keep on piling up - a result of the current council's stubborn refusal to deal with the employees in a forthright manner.  Those bills have totaled more than $2 million for the fiscal year that just ended and that figure is not yet complete.

NO CITY RESPONSE YET
I've inquired of the City for a response but its official reply to this situation is still pending.  If and when I hear more I will update this entry.

EMPLOYEES BREATHING EASIER
In the meantime, the employees who would have been affected by this situation - those who have received as many as a half-dozen layoff notices in recent months - can breath a little easier, for now.

 HOW WILL THIS AFFECT THE ELECTIONS?
It is unclear how this decision by the court will affect the municipal election.  We can almost be guaranteed that folks on both sides of this issue will try to find a way to use this decision to their advantage.  It's not going to be pretty.

Judge Rejects City's Attempt To Dismiss Lawsuit

REQUEST FOR SUMMARY JUDGMENT DENIED
In a press release by the Orange County Employee's Association, reproduced in it's entirety below, we learned today that Judge Barbara Tam Nomoto-Schumann has ruled that the lawsuit filed on behalf of the city employees can proceed to trial. That trial is scheduled to begin April 9th.

(click on image to make larger)

DUARTE - LOOKING FORWARD TO DAY IN COURT
Costa Mesa City Attorney Tom Duarte released a statement following Judge Schumann's decision which said, "This is consistent with the judge's previous rulings on the case. The City looks forward to its day in court."