Truth is supposed to be the first casualty of war, but in Costa Mesa’s pension fight the truth is like a zombie that just won’t die and, so, feckless union leaders and their allies keep trying to kill it.
If this were a movie, you’d root for the zombie.
The union leadership’s latest target for truth suppression is Helen Nenadal, a woman whose deposition last month provides a devastating critique of the union’s legal campaign to kill the city’s attempt to outsource public work.
The irony is that Nenadal is not only a member of Costa Mesa City Employees Association (CMCEA), the union that represents those employees. She’s that union’s president.
Here’s the backstory: A year ago, the Costa Mesa City Council majority announced it would explore privatizing some city functions in order to roll back the costs associated with public-employee pay and benefits, especially rising pension expenses. Supported by the Orange County Employees Association (OCEA), the CMCEA filed suit to stop it.
Nenadal is a city of Costa Mesa facilities maintenance technician (that’s a handyman, to you and me). In her capacity as CMCEA president, she led the union’s legal charge against the city, asserting in a May complaint that the council’s outsourcing effort violates state law and the city’s contract—aka a memorandum of understanding, or MOU—with the union.
Then Nenadal raised the stakes. On August 1, she wrote to city CEO Tom Hatch that she had further evidence of the city’s perfidious intentions vis-à-vis its union employees: the city had violated an obscure council guideline—city policy 100-6—that requires the city to consult with union reps when considering the viability of any outsourcing project.
Raising the city’s putative violation of 100-6 is a double-edged sword for the union: you can’t really claim that outsourcing violates your contract with the city if that contract includes (as this one does) 100-6—a council policy that shows outsourcing’s not only perfectly legal, but that there’s a consultative mechanism in place to make it happen.
Why doesn’t the union’s May filing mention the violation? Why did it take Nenadal three more months to notify Hatch of the ostensible breach? Her deposition doesn’t provide an answer.
“Do you know why the CMCEA did not allege that the city violated policy 100-6 with regard to the preparation of the first set of RFPs?” the city attorney asks Nenadal. And she answers:
Q: When did you first become aware of policy 100-6?
A: It’s always in our—it’s always part—it’s a council policy.
Q: No, I understand that. When did you personally become aware of that council policy?
A: In 1993.
Q: At the time you verified the [May] complaint in this case, were you personally aware of council policy number 100-6?
A: Yes, I was.
Q: Now, you say you wanted to wait until the RFP [request for proposal] process was actually done and issued . . . before informing the city that they had done it wrong, right?
At least two possibilities present themselves: if Nenadal is telling the truth here, it seems possible she was hoping to catch city officials in a violation, to entrap them, you might say—to dig a hole, cover it with leaves, and let Tom Hatch & Co. blunder into it. But Nenadal’s (by all accounts) a supremely gracious person, so that hardly seems likely. Nor (for the same reason) does the alternative seem plausible: that Nenadal is lying—that, like everyone else in America, she’d been doing something more important on the day we passed city policy 100-6, and when she discovered it months after her union filed suit, she could hardly pretend that she’d forgotten (or never knew); that would make 100-6 seem invertebrate/lame/innocuous. Better, then, to say that you knew it all along.
Whatever the truth, when Nenadal’s letter hit Tom Hatch’s desk in August, Hatch hit the reset button—this time with full union participation. In a key exchange with the city’s attorneys, Nenadal admits that the city has satisfied its obligations under the MOU and council policy 100-6:
“Do you have any basis in fact to say that for any of the second set of RFPs that have been issued, that the city did not comply with council policy 100-6 for any of those RFPs?” the city’s attorney asks her.
“Not to my knowledge,” she answers.
Q. All right. So as far as you know the city did what you asked them to do, follow council policy 100-6, for the issuance of all the second set of RFPs?
A. To my knowledge.
Q. Okay. To your knowledge that’s correct?
Q. Okay. Do you believe that the city’s compliance with 100-6 fulfilled the city’s obligations under Section 14.1 of the MOU to make the association part of the discussions regarding contracting services?
A. Yes. CMCEA was part of the discussions of contracting out for the RFPs, yes.
The deposition suggests that Nenadal felt the room-temp rising as city attorneys focused the magnifying glass on her claim that the city attempted to keep the outsourcing process under wraps. In her August 1 letter to Hatch, Nenadal contended that the process of soliciting bids to outsource public work was done in secret. And in her deposition, she seems to stand by that claim—for a minute: “It was accurate,” she tells the city’s attorney. But when pressed, she acknowledges that, well, sure, everybody—the public, the union, and, oh, yes, the city employees actually participating on the outsourcing committees, and Nenadal herself—was following what was, by then, a very public process.
Q: It’s true, is it not, ma’am, that the public knew about this RFP process before you sent your letter to Mr. Hatch in August 2011?
A: I don’t know. I would assume. I don’t know.
Q: My question is, in August—on August 1, 2011, when you write to Mr. Hatch and accuse him that the proposed evaluation process is deliberately exclusionary because any process that’s occurred to date has taken place entirely out of view of both the public and the city-represented employees—it’s not true? It’s not—it’s not true, correct?
A: Yeah, I—no, I disagree on that.
Q: All right. And tell me why, ma’am? Why do you disagree that it was entirely out of view of both the public and the city-represented employees? How is that possible given the allegations in your complaint?
A: Because of the fact that they did not inform CMCEA. They informed—they gave the employee . . . .
Q: All right. Okay. All right. So that’s the distinction you were trying to make: there was not a formal written notification to CMCEA?
Q: Okay. It wasn’t that the CMCEA didn’t know about it, it was that there was not something done formally in writing?
So, Nenadal’s insistence that the process has been secret rests on a slender filament—paper-thin, you might say: never mind the almost-daily news stories and blogs reporting every micro-drama at City Hall; the union planning meetings that (insiders say) tracked councilmembers’ every eyebrow twitch, tie change, and overheard phone conversation; twice-monthly city council meetings in which choreographed public comment against the outsourcing extruded each meeting into something like Melville’s Moby Dick; high-profile stories in the Los Angeles Times, New York Times, Washington Post and New Yorker. Never mind all this: the city never sent the union an official letter requiring its participation in the outsourcing process.
That’s Nenadal’s story.
But what if the union was, in fact, formally invited—“formally in writing”—to participate in the outsourcing process far earlier than Nenadal’s August 1 letter to Hatch? Nenadal’s deposition suggests that’s precisely what happened.
During the deposition, city attorneys presented Nenadal with a March 25 letter from Costa Mesa CEO Tom Hatch to the union—his request for union participation in the outsourcing process, a request consistent with 100-6.
“Let’s look at the last page of Mr. Hatch’s letter,” the city attorney tells Nenadal. “He writes, ‘I appreciate your letter and look forward to working as cooperatively as possible with you and the CMCEA.’”
Q: Did you or any—any—member of your organization respond to Mr. Hatch’s letter and say, yes, we would like to participate and work with you in the process of contracting out?
A: Again—I don’t—there’s been so many letters going through and forth. I’m not sure if there has been or not. I don’t know.
Some of Nenadal’s answers in the deposition are like that: anemic. Others in the January 20 deposition flatly contradict claims she made in filing suit against the city. In her suit, Nenadal said the city’s bid to outsource public work violated its MOU with the union; in the deposition, the city’s attorney asks if there’s anything in the MOU that limits the city’s freedom to outsource public work “with both public and private entities?” Nenadal responds, “Far as I know, no.”
The transcript of her deposition is to ink and paper what Mel Gibson’s Apocalypto is to film—brutal, one-sided, funny in all the wrong ways. It’s so completely destructive of the union’s case that city attorneys rushed it to Tam Nomoto Shumann, the Superior Court judge hearing the CMCEA suit, and asked her to dismiss the case immediately.
The OCEA apparently understands all this—really gets that Nenadal put her pedal appendage in the union’s oral cavity, and pretty much killed its claim. That’s why union attorneys are now begging Judge Nomoto Shumann to ignore the facilities maintenance technician behind the curtain, and are working assiduously to bury her damning transcript through a series of legal challenges. They’ve told the judge that Nenadal’s deposition ought to be thrown out because, well, it doesn’t fit the facts as the union’s attorneys would like to present them. It is, as the union characterizes it, “as categorical a contradiction of [her earlier testimony] as could be imagined” and should, therefore, be disappeared like bunnies in a top hat in a bad magic show.
The judge hasn’t made a decision on the city’s request for a summary judgment and the union’s counter effort to bury the Nenadal deposition. But what’s clear is terrifying if you’re a facilities maintenance technician: the union that attempted to transform a city worker’s March 17 suicide into a political execution has now turned its formidable powers on one of its own, poor Helen Nenadal.
Just in case we were left with the illusion that the union leadership has any interest in helping city residents—that union leaders understand the depth of the pension crisis inundating cities, counties and states across the nation—there was this grim coda: “In fact,” the city attorney asked Nenadal, “the only interest of the CMCEA is to promote the interest of its members, correct?”
“Absolutely,” she answered.
“Do you have any understanding as to whose responsibility it is to look out for the people of Costa Mesa to represent their interest?” the attorney asked.
Nenadal’s monosyllabic response speaks volumes: “No.”