county board

Voters in the Northern California city of Vallejo passed a ballot measure adopting binding arbitration with its public employee unions more than 50 years ago, following a bitter police strike.

The goal was labor peace. Under binding arbitration, an independent referee is brought in when negotiators hit an impasse. The final decision on wages, benefits and working conditions is taken out of the hands of the local elected officials and placed squarely with the arbitrator.

With Measure A on the Nov. 3 ballot, Los Angeles County voters have a chance to do much the same thing here.

The measure is being pushed by unions representing county firefighters, sheriff’s deputies and other public safety employees who by law cannot go out on strike, and who say binding arbitration adds balance to the negotiation process by taking away the unilateral authority held by the county Board of Supervisors.

No formal opposition to Measure A has been submitted. But in his summary of the potential impact this year, county chief executive Joe Nicchita shared news stories showing how binding arbitration has played out in other jurisdictions, including Vallejo.

In 2007, a mediator determined that despite fiscal travails, Vallejo couldn’t reduce the size of its fire department. Eight months later, with little budgetary wiggle room, the city declared bankruptcy.

Vallejo had been the first California municipality to adopt binding arbitration. In 2010, the voters decided to ditch it.

Supervisor Holly Mitchell voiced concerns about Measure A when the board discussed placing it on the ballot this year.

“Arbitrators aren’t elected,” she said. “They’re not required to weigh countywide trade-offs like homeless services, like healthcare, capital improvements, all those things.”

The board voted 4-0 to place binding arbitration on the Nov. 3 ballot, with Mitchell abstaining. Supporters say there are sufficient protections to prevent the county from experiencing the financial tribulations that Vallejo and other cities suffered in part because of binding arbitration.

“This process opens up the books, allows the parties to come together and base decisions on facts rather than political preferences, and it also shows whether there are actually resources to meet the demands that are coming,” Supervisor Lindsey Horvath, an architect of the measure, said in an interview.

Horvath previously noted that just six of the 21 jurisdictions in California that have instituted binding arbitration, including two counties, have had to resort to it.

If a majority of county voters approves Charter Amendment A, it will cover 14 bargaining units representing some 16,500 county workers, among them lifeguards and deputy medical examiners. It would not apply to bargaining units whose workers can strike.

In the current system, if the sides are unable to reach an agreement, the supervisors can impose a final offer that the unions must accept. While contract negotiations are frequently contentious, historically the supervisors mandating final terms is rare; The Times previously reported that it has happened only twice since 2001.

Under the proposed measure, contract negotiations would begin as they do now, with the presumption that both sides bargain in good faith. However, if agreement proves impossible and an impasse is declared, a three-member arbitration panel would take over.

In that case, the county and the union each would select one member, with the sides together choosing the third person, who would serve as the panel’s chair. The arbitrators would hold hearings and weigh evidence related to employment elements such as wages and hours. In the end, the binding ruling would be made public.

Derek Hsieh, executive director of the Assn. for Los Angeles Deputy Sheriffs, said the current process began with a group of labor unions launching a signature-gathering drive to put binding arbitration before voters. That led to working with the supervisors and the county chief executive, who, Hsieh said, wanted to ensure there were certain safeguards.

Hsieh said binding arbitration would represent an important and balanced change.

“Currently, the employer has near unilateral control over what the contract provisions are,” he said.

He added that the threat of going before arbitrators would spur both county and union negotiators to reach an agreement before someone else takes over, and that it would prevent either side from pushing a “wild proposal” that arbitrators would quickly reject.

Dave Gillotte, president of the International Assn. of Firefighters Local 1014, which represents more than 3,000 L.A. County Fire Department employees, agrees that the very threat of winding up in binding arbitration would encourage negotiating teams to cut a deal.

“Binding arbitration really brings about leverage to move both parties to work hard to get a contract done, where we don’t have that now,” Gillotte said.

The practice of using binding arbitration to resolve union and government disputes has been around for decades.

“These are routine laws that are part of the labor relations framework,” said Justin McBride of the UCLA Institute for Research on Labor and Employment.

The strong union support for binding arbitration would seem to suggest that the process favors organized labor over elected local governments. McBride said academic studies don’t support that premise, and that neither side overwhelmingly comes out on top.

He pointed to a 2010 study from Cornell University that examined decades of negotiation outcomes in New York. One finding was that after a few years, the number of cases that wound up in arbitration declined, indicating that the sides learned to work together.

“Everyone gets a deal, and just like in a lot of contracts maybe both parties aren’t 100% with it, but that’s kind of the nature of collective bargaining,” McBride said.

Still, there have been instances in which decisions by independent arbitrators contributed to a municipality’s economic challenges, and elected officials were unable to unwind the rulings.

In her interview with The Times, Horvath said arbitrators would be expected to make decisions that consider the county’s fiscal situation.

“That’s what this is designed to do,” she said.

While no formal opponents to Measure A are listed on the ballot, some progressive groups aren’t on board. The voter guides for community organization L.A. Forward and prison abolition proponents La Defensa both urge a “no” vote. The inclusion of the Sheriff’s Department influenced that decision.

“We believe law enforcement special interest groups should not be treated as labor or given more leverage in negotiations,” La Defensa wrote in its guide. “More money and more power for the Sheriff’s Department is the crux of our opposition. By bundling deputies with firefighters and lifeguards, Measure A weaponizes a process we would otherwise support.”

Labor unions and other supporters are digging deep. The unions representing sheriff’s deputies, firefighters and other employee groups reported raising $7.7 million through mid-October to campaign in favor of Measure A, according to financial disclosure reports.

No campaign funds have been reported in opposition to Measure A.

When a county judge put the brakes on what would be the largest data center in California, ruling the whole project needed extensive environmental review, Kristian Salgado was relieved.

The community organizer lives in Imperial County, where the nearly one-million-square-foot facility was proposed. The rural county near the Mexico border struggles with bad air pollution and has one the state’s highest rates of asthma hospitalization for kids, according to the National Institute of Environmental Health Sciences. One of Salgado’s nephews lives right next to the site and struggles with the respiratory disease.

“It just seemed very unusual that a project of this scale, with that many backup generators could be permitted without requiring any further [analysis] of what that would mean for residents,” she said.

Now, Salgado and others who share her concern believe Proposition 45 on the November ballot could roll back their wins. The initiative changes the California Environmental Quality Act, or CEQA, a law intended to inform decision makers and the public about a project’s possible environmental impacts — and mitigate them to the extent possible.

Supporters say Prop 45 will speed up environmental review for essential housing, transportation, water, health, education and other projects, cutting costly delays and passing the savings on to consumers. Opponents say it not only weakens environmental protections for many developments, but will cover potentially polluting ones — including data centers. The Yes on 45 campaign forcefully rejects the data center claim, but independent legal experts are divided.

At the heart of the debate is the definition of one of the categories covered by Prop 45: “broadband internet access projects” or “mass-market retail service … that provides the capability to transmit data to, and receive data from, all or substantially all internet endpoints.”

Dan Dunmoyer, president and chief executive of the California Building Industry Assn., which supports the proposition, was adamant: “We specifically excluded data centers” when crafting the measure.

Yet the proposition expressly names certain excluded projects: nuclear energy, high-speed rail, jails and Delta conveyance facilities. Data centers aren’t among them.

Dunmoyer maintains that even if they’re not explicitly listed, data centers just don’t fit the measure’s definition.

In a Daily Journal op-ed, Rachelle Chong, a former Federal Communications Commission member, similarly argues that the definition refers to internet access bought from a provider like AT&T or Comcast. “A conventional data center ordinarily performs an entirely different function,” she wrote, arguing data centers aren’t in play.

But land use attorneys Matthew McKerley and Richard Frank, in another op-ed, say many modern data centers fit the bill because they house equipment used to transmit consumer data to and from the internet.

They also highlight conspicuous campaign finance contributions, including $250,000 from Prologis, which developed two data centers in San Jose.

Ethan Elkind, director of the climate program at UC Berkeley Law, said data centers will argue they fit the definition — and then it will be up to the courts to decide.

“Anyone telling you that it’s definitely not going to be data centers, they cannot read the future,” he said. “The way they’ve written the language, they can’t provide 100% assurance.”

Eric Biber, a UC Berkeley law school professor with expertise in environmental law, pointed to language in the measure requiring it to be interpreted broadly “to afford the fullest possible weight to the interest of, and the approval and realization of, essential projects.” In a blog post, he called it “a thumb on the scale” that could lead courts to conclude that projects should be covered when their eligibility is in doubt.

But Ryan Thomason and J. Scott Miller, partners at the law firm Mitchell Chadwick with CEQA expertise, think it’s likely courts would rule otherwise. In an article, they note that the definition used in the measure hews closely to another section of California law, which distinguishes providing internet services from offering content, services and applications online. “Courts generally interpret identical language in related statutes to have the same meaning,” they write.

Dunmoyer, of the California Building Industry Ass., stressed that the measure doesn’t overthrow local zoning rules.

Opponents are “making it sound like in your backyard will be a data center,” he said. “Well, that doesn’t happen at all by this initiative. That has to happen by a county board of supervisors voting to put a data center in your backyard. And if they decide to do that, this initiative does nothing to expedite that CEQA review.”

But what if local officials run afoul of their constituents? In the case of the Imperial Valley Data Center Campus, the roughly 75 acres of unincorporated land where it would go had already been zoned for data centers. As a result, county officials said they had the power to move forward with the facility for artificial intelligence computing infrastructure without city approval.

They granted the project an exemption from the state environmental review.

Then came the backlash. Residents spoke out at public meetings, rallied on the streets, circulated a petition and formed a community organization. The city of Imperial and the Sierra Club sued. In the wake of the outrage, the county walked back its decision, declaring a moratorium on data centers. (The developer sued the county over the ban, and the county recently rescinded it following a court order.)

If Prop 45 passes — and data centers are covered by it — Eric Biber, of UC Berkeley Law, told The Times that such a moratorium wouldn’t be possible. That’s because the measure prevents state and local officials from changing the rules for a project once its application is submitted, he said. So if a community didn’t have a moratorium in place and its zoning laws allow a data center, “They’re done,” said. Existing bans aren’t expected to be affected.

Attorneys for the No on Prop 45 campaign argue that it could have real-world impacts for the Imperial Valley facility, saying the developer could claim the new rules apply. For instance, the measure would prevent courts from overturning approvals of qualifying projects because of CEQA violations. Courts would only be able to halt the affected portion of the project while the issue is fixed.

Sebastian Rucci, principal developer of the Imperial Valley data center, said he will fight for his project to move forward and that there’s an environmentally sound way to do it. He said he’s willing to negotiate and mitigate where necessary — but will not go through the CEQA process. If push comes to shove, he said he’ll move the project elsewhere. California could “get in the game” or be left in the dust, he said.

Imperial Valley Computer Manufacturing, the company behind the project, says it will create at least 100 permanent jobs and generate $28.7 million in annual property tax revenue.

CEQA requirements “are not about the environment,” Rucci said. “They may be for some, but they’re not for many. For many, they are about killing things.”