VOTERS FOR RESPONSIBLE RETIREMENT v. BOARD OF SUPERVISORS OF TRINITY COUNTY

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Court of Appeal, Third District, California.

VOTERS FOR RESPONSIBLE RETIREMENT, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF TRINITY COUNTY, et al., Defendants and Respondents.

No. C013486.

Decided: June 28, 1993

Alfred S. Wilkins, Weaverville, for plaintiff and appellant. John W. Anderson, County Counsel, for defendants and respondents.

Appellant Voters for Responsible Retirement, an unincorporated association, filed a petition for writ of mandamus (Code Civ.Proc., § 1085) against the Board of Supervisors of Trinity County (Board) and Barbara M. Rhodes, County Clerk, seeking to compel respondents to repeal or submit to voter referendum an ordinance authorizing the Board to add certain categories of miscellaneous county employees to the Public Employees Retirement System (PERS).   The trial court denied the petition on the ground the ordinance was not subject to referendum.

In unpublished portions of this opinion, we conclude the appeal is not moot and need not be dismissed.   We also consider and reject various procedural issues tendered by respondents.

In this published portion of the opinion, we explain why we agree with appellant that the ordinance was subject to referendum.   We shall therefore reverse the judgment (order).

FACTUAL AND PROCEDURAL BACKGROUND

On November 5, 1991, the Board entered into memoranda of understanding (MOU's) with certain county employee groups—the Trinity County Employees' Association (General Unit and Management & Confidential Unit) and the Trinity County Road Employees' Association, Skilled Trades Unit—to change the retirement plan of those employees from a private insurance company to PERS.   The memoranda provided that the “County shall implement the PERS 2% at 60 retirement program including prior service for current County employees.   Concurrently, employees participating in the John Hancock retirement plan shall have their contributions to the plan returned with interest credit thereon in accordance with the terms of the John Hancock Contract.   County contributions to the John Hancock plan shall be transferred to PERS.  [¶] [ ]  Concurrent with implementation of the PERS retirement plan, the County shall pay the employees PERS contribution.   This contribution shall be treated as an employee contribution and so reported to PERS.  [¶] [ ]  Implementation of the PERS program as outlined above is contingent upon the agreement of all County bargaining groups and ratification of the Board of Supervisors as well as, the approval of the majority of County employees through the required PERS election.   Should the retirement plan not be implemented, due to any of these reasons, the County and Association shall immediately reopen negotiations.”

On November 19, 1991, the Board adopted Resolution No. 153–91, declaring its intent to approve an amendment to its PERS contract to add the local miscellaneous employees to the category of included employees.

On December 17, 1991, the Board adopted Ordinance Number 1161, authorizing an amendment to its PERS contract to include the local miscellaneous employees in the retirement system.   A copy of the ordinance is attached as appendix A.

On January 15, 1992, a voter petition (Elec.Code, § 3753) seeking the repeal of Ordinance No. 1161, or in the alternative a referendum election on its adoption, was filed with and later certified by the county clerk.

The Board apparently took no action on the petition.

On February 25, 1992, appellant filed a petition for writ of mandamus in the trial court.   The trial court issued an alternative writ.   At the hearing on the peremptory writ, respondents' counsel urged the court, with appellant's agreement, to decide the substantive question first rather than the procedural issues raised in respondents' pleading.   The trial court did so and concluded that “by the contents of Article XI, Section 1(b) of the California Constitution, the people have chosen not to reserve the referendum power relative to [the] subject matter of the nature involved in the present petition.”   The court thus found it unnecessary to address other questions raised by respondents, discharged the alternative writ, and denied the petition for a peremptory writ.

The order denying the petition was filed April 13, 1992.   The notice of appeal was filed May 14, 1992.1

DISCUSSION

I.–II.**

III. The Ordinance Was Subject To Referendum

Appellant contends, and we agree, the trial court erred in concluding Ordinance Number 1161 was not subject to referendum.

The state constitution provides for the power of referendum.   Thus, article IV, section 1 provides in part, “․ the people reserve to themselves the powers of initiative and referendum.”   Article II, section 9, subdivision (a), states:  “The referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.”   Article II, section 11, states, “Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide.   This section does not affect a city having a charter.”

 Referendum is not a right granted to the people but a power reserved by them;  it is jealously guarded and liberally construed.   (Pacific Rock etc. Co. v. Upland (1967) 67 Cal.2d 666, 668, 63 Cal.Rptr. 572, 433 P.2d 476;  Ortiz v. Board of Supervisors (1980) 107 Cal.App.3d 866, 870, 166 Cal.Rptr. 100.)   The referendary power reserved to the electorate of a county is coextensive with the referendary power reserved to the people of the state.  (Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 777, 269 Cal.Rptr. 796;  Ortiz v. Board of Supervisors, supra, 107 Cal.App.3d at p. 871, 166 Cal.Rptr. 100.)

A. The Subject Ordinance Was a Legislative Act

 “The power of referendum applies only to acts that are legislative in character;  executive or administrative acts are not within the scope of that remedy.  [Citations.]”  (Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 557, 219 P.2d 457;  see Yost v. Thomas (1984) 36 Cal.3d 561, 569, 205 Cal.Rptr. 801, 685 P.2d 1152;  note, The Scope of the Initiative and Referendum in California (1966) 54 Cal.L.Rev. 1717, 1734–1742.)  “This legislative-administrative dichotomy reflects a determination to balance the ideal of direct legislation by the people against the practical necessity of freeing municipal governments from time consuming and costly referenda on merely administrative matters.”  (Fishman v. City of Palo Alto (1978) 86 Cal.App.3d 506, 509, 150 Cal.Rptr. 326, fns. omitted.)   Although the test is not precise and the published decisions reflect some inconsistency in approach, “[l]egislative acts generally are those which declare a public purpose and make provisions for the ways and means of its accomplishment.   Administrative acts, on the other hand, are those which are necessary to carry out the legislative policies and purposes already declared by the legislative body.”  (Ibid.)

 Appellant contends Ordinance Number 1161 is a legislative act because it has long been recognized that the fixing of public employees' compensation is a legislative act.  (E.g., Collins v. City & Co. of S.F. (1952) 112 Cal.App.2d 719, 730, 247 P.2d 362;  Spencer v. City of Alhambra (1941) 44 Cal.App.2d 75, 77, 111 P.2d 910 and authorities cited therein.)   Respondents implicitly concede (indeed contend that) the subject ordinance fixes employees' compensation.   We agree with this view.   Pension rights of public employees are deferred compensation earned immediately upon the performance of services for a public employer.  (Miller v. State of California (1977) 18 Cal.3d 808, 814, 135 Cal.Rptr. 386, 557 P.2d 970, followed in Legislature v. Eu (1991) 54 Cal.3d 492, 533, 286 Cal.Rptr. 283, 816 P.2d 1309, see also International Assn. of Firefighters v. City of San Diego (1983) 34 Cal.3d 292, 300, 193 Cal.Rptr. 871, 667 P.2d 675;  Betts v. Board of Administration (1978) 21 Cal.3d 859, 863, 148 Cal.Rptr. 158, 582 P.2d 614.)   Because the subject ordinance fixes the compensation of public employees, it is a legislative act subject to referendum.  (Collins, supra, 112 Cal.App.2d at p. 730, 247 P.2d 362.)

Respondents assert on appeal that the question whether the ordinance was a legislative or administrative act is irrelevant because the trial court found the subject matter was not subject to referendum.   However, because we conclude the trial court's decision was incorrect, the question is relevant.   We note respondents argued in the trial court that if the fixing of compensation was the legislative act at issue, that act occurred when the Board approved the MOUs on November 5, 1991.   Thus, although we conclude the subject matter of adding these employees to PERS was a legislative act, the question remains as to which of the various steps in the process constituted the dispositive legislative act for purposes of triggering invocation of the referendum power.

We requested and received supplemental briefing on the following issues:

1. Whether the MOU's were formally adopted by ordinance or resolution of the Board.

2. Whether adoption of Ordinance No. 1161 was required by the MOU's.

3. What “ratification” was contemplated by language contained in the MOUs that “implementation of the PERS program as outlined above is contingent upon ․ ratification of the Board of Supervisors․”

We allowed the parties to submit certified copies of the agenda and minutes of a regular Board meeting on November 5, 1991, showing that the Board voted on that date to approve and authorize the Board's chairman to sign the MOU's.   The MOU's were signed the same day.   Respondents note the absence of any requirement that approval of MOU's be accomplished by ordinance or resolution.  (United Public Employees v. City and County of San Francisco (1987) 190 Cal.App.3d 419, 423, 235 Cal.Rptr. 477.)

In their supplemental brief, respondents suggest that the legislative act in this case occurred either when the Board voted on November 5, 1991, or when the Legislature enacted the statutes that allow inclusion of county employees in PERS (Gov.Code, §§ 20450–20461).4

 The latter argument is specious.   Respondents cite no authority for the proposition that the only legislative act in this case occurred when the Legislature enacted the statutes.   They do refer to the statement quoted in Fishman v. City of Palo Alto, supra, 86 Cal.App.3d 506, 150 Cal.Rptr. 326, that “the power to be exercised is legislative in its nature if it prescribes a new policy or plan;  whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.”  (Id. at p. 509, 150 Cal.Rptr. 326, emphasis added.)   Thus, for example, when a city acts to implement a comprehensive system of state regulations affecting a matter of statewide concern, it is acting in an administrative capacity not subject to referendum.  (W.W. Dean & Associates v. City of South San Francisco (1987) 190 Cal.App.3d 1368, 1375–1376, 236 Cal.Rptr. 11.)   However, as we discuss further post, the fixing of county employee compensation is a matter of local, not statewide, concern.  (See also United Public Employees v. City and County of San Francisco, supra, 190 Cal.App.3d at p. 423, 235 Cal.Rptr. 477.)   The Legislature's enactment of statutes addressing inclusion of local employees in PERS does not mean that a county board acts as an administrative agent of the state when it takes action to include county employees in PERS.   Thus, the W.W. Dean example is inapplicable here.   Respondents propose no reason or authoritative basis for concluding that the only legislative action in this case was that taken by the Legislature in enacting the statutes.

 According to respondents, when the Board voted to approve the MOUs on November 5, 1991, it “established the policy” of extending PERS coverage to its miscellaneous employees, and all further acts required by law were merely administrative acts to implement this previously declared policy.   We disagree.

Inclusion of employees under PERS can be accomplished only by ordinance and only after compliance with certain steps designed to give notice to the public of the intended action.   Thus, Government Code section 20461, which is part of the Public Employees' Retirement Law, provides that “Excluded employees may be included by groups through amendments approved in the manner prescribed for the approval of contracts, ․”  Approval of contracts requires adoption of a resolution giving notice of such intention, followed by adoption of an ordinance.   Thus, Government Code section 20457 provides in part:  “If ․ the governing body intends to approve the proposed contract, it shall adopt a resolution giving notice of such intention.   The resolution shall contain a summary of the major provisions of the proposed retirement plan.   The contract shall not be approved unless an election has been held to permit the employees proposed to be included in this system to express by secret ballot their approval or disapproval of the retirement proposal․”  Government Code section 20460 provides:  “Approval of the contract shall be by ordinance adopted by the affirmative vote of a majority of the members of the governing body, not less than 20 days after the adoption of the resolution of intention, or by ordinance adopted by a majority vote of the electorate of the public agency voting thereon.”   Additionally, Government Code section 7507 requires that the local legislative body secure the services of an enrolled actuary to assess actuarial impact, and the “future annual costs as determined by the actuary shall be made public at a public meeting at least two weeks prior to the adoption of any increases in public retirement plan benefits.”

Thus, the legislative scheme governing this matter is clearly designed for the purpose of providing the public with notice of proposed action in advance, so that the citizenry can comment on the process.   Here, respondents complied with the statutory prerequisites, culminating in the December 17, 1991, adoption of Ordinance Number 1161.

That leaves the question:  what do we do with the MOUs?   Once approved by the legislative body, MOUs become binding agreements.  (Gov.Code, § 3505.1; 5  Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 124 Cal.Rptr. 513, 540 P.2d 609.)   The MOU's provided that the “County shall implement the PERS 2% at 60 retirement program including prior service for current County employees.”   However, the MOU's also contained express language that the PERS coverage was subject to various conditions subsequent, i.e. election by the affected employees and “ratification” by the Board.   Thus, the MOU's stated:  “Implementation of the PERS program as outlined above is contingent upon the agreement of all County bargaining groups and ratification of the Board of Supervisors as well as, the approval of the majority of County employees through the required PERS election.   Should the retirement plan not be implemented, due to any of these reasons, the County and Association shall immediately reopen negotiations.”

In response to our inquiry, respondents contend in their supplemental brief that the “ratification” contemplated by the MOUs was the Board's vote on November 5, 1991, approving and authorizing the chairman to sign the MOU's.   Thus, according to respondents, despite the express contingency stated in the documents that were approved by the Board, the Board entered into a binding agreement obligating the county to amend the PERS contract, even though by law the governing body cannot approve such an amendment to a PERS contract until it complies with the statutory prerequisites and until an employee election is held.  (Gov.Code, §§ 7507, 20457, 20460, 20461.)

We find respondent's proposed construction of the MOU's illogical.   The statutorily mandated process, designed to allow public participation, would be rendered nugatory if, as respondents contend, the result was preordained by the signing of the MOU's.   It is our obligation to construe the contract to preserve its legality.  (Redke v. Silvertrust (1971) 6 Cal.3d 94, 102, 98 Cal.Rptr. 293, 490 P.2d 805.)   We therefore will not construe the MOU's in a way that would preclude public participation.   Rather, we construe them to be lawful, such that the ratification contemplated by the MOU's was the ultimate approval of the PERS contract amendment by the Board, having gone through the statutorily mandated process.   Thus, the “ratification” contemplated by the MOU's was Ordinance No. 1161.

We conclude Ordinance No. 1161 was a legislative act subject to referendum.

 B. Article XI, Section 1, Subdivision (b) of the Constitution Does Not Immunize the Ordinance From Referendum.

The constitutional provision at issue in this case is California Constitution, article XI, section 1, subdivision (b) (hereafter “article XI, section 1(b)”), which provides as follows:

“The Legislature shall provide for county powers, an elected county sheriff, an elected district attorney, an elected assessor, and an elected governing body in each county.   Except as provided in subdivision (b) of Section 4 of this article, each governing body shall prescribe by ordinance the compensation of its members, but the ordinance prescribing such compensation shall be subject to referendum.   The Legislature or the governing body may provide for other officers whose compensation shall be prescribed by the governing body.   The governing body shall provide for the number, compensation, tenure, and appointment of employees.”  (Emphasis added.)

Respondents argue that since this provision expressly confers power relating to employee compensation on the “governing body”—i.e., the Board—rather than “the County” or “the voters,” the people thereby did not reserve to themselves the power of referendum.   In support of this argument, they cite Meldrim v. Board of Supervisors (1976) 57 Cal.App.3d 341, 127 Cal.Rptr. 52, which held that the clear wording of a November 1970 amendment to article XI, section 1(b)—providing that the “governing body,” not “the county” or “the voters,” shall prescribe compensation of board members “subject to referendum”—meant that such action was not subject to the initiative process.   As stated by the court, “If the initiative were held to be applicable, the voters could prescribe the compensation, in contradiction to the provision that the governing body shall do so.” 6  (Id. at p. 344, 127 Cal.Rptr. 52, original emphasis.)

However, Meldrim does not support a conclusion that a provision granting power to a governing body means the matter is not subject to referendum as a control on that power.   Indeed, the provision discussed in Meldrim illustrates this possibility, because it expressly confers power on the governing body, subject to referendum.

Moreover, Meldrim has no bearing on this case, because it addresses only the November 1970 amendment to article XI, section 1(b), and the only change made by that amendment was to make board member compensation, which previously had been set by the state Legislature, a matter of local rather than statewide concern.   The amendment did not affect employee compensation, which had been and remained a matter of local concern.7

Respondents also argue that the express inclusion in article XI, section 1(b), of the referendum power in reference to board members' salaries must mean that the omission of an express reservation of referendum power as to employee compensation removes this matter from the referendary power.   The trial court in this case based its decision on that rule of construction.   However, assuming the existence of an ambiguity in the constitutional provision, the paramount concern in constitutional construction is to ascertain the voters' intent.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   As we explain, the history of article XI, section 1(b), establishes that the people have reserved the referendum power as to employee compensation.

Thus, local power over county employee compensation dates back to June 1933, when the electorate added a provision to former article XI, section 5, which was a predecessor provision to current article XI, section 1.   The provision added in 1933 stated in part:  “The board of supervisors in the respective counties shall regulate the compensation of all officers in said counties other than boards of supervisors, district attorneys, auditors, and judges of municipal courts, and shall regulate the number, method of appointment, terms of office or employment, and compensation of all deputies, assistants, and employees of the counties.  [¶] ․ That certain act entitled ‘An act to add a new section to the Political Code to be numbered 4056d ․ is hereby validated and made fully and completely effective.’ ”  (Ballot Pamp., Proposed Amends. to Cal.Const. with arguments to voters, Special Statewide Elec. (Jun. 27, 1933) p. 13, emphasis added.)

Former Political Code section 4056d, as enacted in 1933, provided in part as follows:

“The board of supervisors of each county shall have the power and it shall be the duty of such board to regulate the compensation of all county or township officers, including justices of inferior courts, other than the board of supervisors, the district attorney, the auditor, and the judges of municipal courts, and to regulate the number, method of appointment, terms of office or employment, and compensation of all deputies, assistants and employees of the county.

“Except so far as they apply to boards of supervisors, district attorneys, grand and trial jurors, and auditors, all laws or parts of laws now in force establishing, regulating or otherwise affecting the salaries or compensation of county officers, and all laws or parts of laws now in force establishing, regulating or otherwise affecting the number, method of appointment, except as hereinafter provided terms of office or employment, and salaries or compensation of deputies, assistants and employees of the counties, are hereby continued in force and effect solely as ordinances of the respective counties to which they relate, and may be superseded, modified or otherwise affected by ordinances hereafter adopted in the respective counties and subject to the rights of initiative, referendum and recall as reserved to the electors of such counties.” 8  (Stats.1933, ch. 643, § 1, pp. 1674–1675, emphasis added.)

The 1933 ballot pamphlet, which may be considered to ascertain voter intent (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 740, fn. 14, 248 Cal.Rptr. 115, 755 P.2d 299), explained to the voters:  “The act which is validated by this constitutional amendment carries out its purposes, and provides that present State laws fixing salaries shall be effective solely as local ordinances, and may be superseded by ordinance hereafter adopted, subject to the regular initiative and referendum powers of the people.” 9  (Ballot Pamp., Proposed Amends. to Cal.Const. with arguments to voters, Special Statewide Elec. (Jun. 27, 1933) p. 10, emphasis added.)

 When the ballot argument referred to the “regular ․ referendum powers of the people,” the reference must have been to the referendum power reserved in the Constitution.   The same is true of the “rights of ․ referendum ․ reserved to the electors of such counties” by former Political Code section 4056d.  (Stats.1933, ch. 643, § 1, p. 1675.)   Thus, when former article XI, section 5 “validated” former section 4056d, the constitutional provision implicitly recognized that the power of counties to set employees' compensation was subject to the constitutional right of referendum.

In June 1970, article XI was reorganized, and the provision for employee compensation was placed in article XI, section 1(b).10  Respondents point out that, whereas the former provision said the board shall “regulate” employee compensation, the replacement provision said the board shall “provide” for employee compensation.   However, the voters in the June 1970 election also added article XI, section 13, which provides in part:  “The provisions of Section[ ] 1(b) (except for the second sentence [compensation of members of governing body] ) ․ of this Article relating to matters affecting the distribution of powers between the Legislature and the cities and counties, including matters affecting supersession, shall be construed as a restatement of all related provisions of the Constitution in effect immediately prior to the effective date of this amendment, and as making no substantive change․”  Thus, the change in language is without consequence.

As we have noted, the November 1970 amendment (changing board member compensation from statewide to local control) made no change regarding compensation of employees.   Nor has there since been any amendment affecting the employee compensation provision of article XI, section 1(b).

We conclude the people's reservation of referendum power as to the subject matter of this action was established by enactment of former article XI, section 5.   We find no indication of subsequent relinquishment of that reservation.   Thus, the ordinance in this case was subject to referendum.

However, we must address respondents' contention that the Legislature has indicated its “opinion” that the fixing of compensation for county employees is not subject to referendum, because by statute this type of ordinance takes effect immediately, with no time for the filing of a voter petition challenging the ordinance.11

As respondents note, a voter petition challenging an ordinance must be filed before the ordinance takes effect.  (Elec.Code, § 3753;  see also Cal.Const., art. II, § 11 [authorizing Legislature to set procedures for exercise of referendum power].)   The Legislature has provided that certain ordinances take effect immediately, such as the ordinances exempt from referendum (tax, election, and urgency statutes) and “[t]hose [ordinances] specifically required by law to take immediate effect.”  (Elec.Code, § 3751, subd. (a)(2).)  Government Code section 25123 provides in part:  “All ordinances shall become effective 30 days from the date of final passage, except the following ordinances, which shall take effect immediately: ․ [¶] (e) Those specifically relating to the adoption or implementation of a memorandum of understanding with an employee organization.  [¶] (f) Those relating to salaries and other compensation of officers, other than elected officers, and employees.” 12  (Emphasis added.)

 However, it is not within the Legislature's power “either by silence or direct enactment, to modify, curtail, or abridge a self-executing grant of constitutional power,” such as the referendum power.  (Midway Orchards v. County of Butte, supra, 220 Cal.App.3d at p. 778, 269 Cal.Rptr. 796.)   Thus, the “power of referendum reserved to the people in our Constitution does not countenance that a legislative act subject to referendum can be effective before the power of referendum can be exercised.”   (Id. at pp. 781–782, 269 Cal.Rptr. 796.)   The Legislature cannot reduce referendary power reserved to the people by enlarging or increasing the type of legislation which becomes effective immediately.  (Ortiz v. Board of Supervisors, supra, 107 Cal.App.3d at p. 873, 166 Cal.Rptr. 100.)

We therefore conclude Government Code section 25123, subdivisions (e) and (f), cannot be constitutionally applied to deprive the people of the referendum power as to the ordinance at issue in this case.   Thus, those provisions do not nullify the 30–day period set forth in Ordinance Number 1161 as the waiting period before the ordinance would take effect.

The trial court erred in concluding the ordinance was immune from referendum.

In reaching this conclusion, we have in mind that, “The 1911 amendment to the California Constitution, which provides for the initiative and referendum, ‘[d]rafted in light of the theory that all power of government ultimately resides in the people, ․ speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them.   Declaring it “the duty of the courts to jealously guard this right of the people” (Martin v. Smith (1959) 176 Cal.App.2d 115, 117 [1 Cal.Rptr. 307] ), the courts have described the initiative and referendum as articulating “one of the most precious rights of our democratic process” (Mervynne v. Acker [1961] 189 Cal.App.2d 558, 563 [11 Cal.Rptr. 340] ).  “[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled.   If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.”  (Mervynne v. Acker, supra, 189 Cal.App.2d 558, 563–564 [11 Cal.Rptr. 340];  Gayle v. Hamm [1972] 25 Cal.App.3d 250, 258 [101 Cal.Rptr. 628].)'  (Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d [582] at p. 591, [135 Cal.Rptr. 41, 557 P.2d 473 (1976) ] fn. omitted.)”  (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 821, 226 Cal.Rptr. 81, 718 P.2d 68.)

IV. Miscellaneous Matters ***

DISPOSITION

The judgment (order) is reversed.   Appellant will recover its costs on appeal.

APPENDIX A

ORDINANCE NO. 1161ORDINANCE AMENDING THE TRINITY COUNTY CODEAPPROVING AN AMENDMENT TO THE CONTRACTWITH THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM

THE BOARD OF SUPERVISORS OF THE COUNTY OF TRINITY, STATE OF CALIFORNIA, DOES ORDAIN AS FOLLOWS:

Ordinance amending Trinity County Code, Section 2.60.840 authorizing amendment to the contract between the County of Trinity and the Board of Administration of the California Public Employees' Retirement System—Local Miscellaneous employees:

A.  That an amendment to the contract between the Trinity County Board of Supervisors of the County of Trinity and the Board of Administration, California Public Employees' Retirement System, providing for the inclusion of local miscellaneous employees in said retirement system, is hereby authorized, a copy of said amendment being attached hereto, marked Exhibit, and by such reference made a part hereof as though herein set out in full.

B. The Chairman of the Trinity County Board of Supervisors is hereby authorized, empowered, and directed to execute said amendment for and on behalf of said Agency.

This Ordinance shall take effect 30 days after the date of its adoption, and prior to the expiration of 15 days from the passage thereof shall be published at least once in the Trinity Journal, a newspaper of general circulation, published and circulated in the County of Trinity, and thenceforth and thereafter the same shall be in full force and effect.

PASSED AND ADOPTED by the Board of Supervisors of the County of Trinity, State of California, at a regular meeting of said Board, held on the 17th day of December, 1991, by the following vote:

AYES:  Supervisors Mortensen, Plowman, Whitridge and Potter

NOES:  Supervisor Leffler

ABSTAIN:  None

ABSENT:  None

ATTEST:

BARBARA M. RHODES

County Clerk & Ex–Officio Clerk

of the Board of Supervisors of

the County of Trinity, State

of California

/s/ A. Dee Potter

CHAIRMAN–Board of Supervisors

By /s/ Carol Rourke

By Deputy

Approved as to form:

/s/ John W. Anderson

John Anderson–County Counsel

FOOTNOTES

1.   Respondents ask us to consider subsequent events that do not appear in the record, i.e., that on July 1, 1992, the Board implemented Ordinance Number 1161 by terminating the retirement plan with John Hancock Life Insurance Company, returning some employee contributions, transferring more than $2 million from John Hancock to PERS, and amending its PERS contract to include the local miscellaneous employees.   Respondents also assert at least one employee has already retired under the new PERS plan.We reject respondents' request for a hearing in this court to augment the record to reflect these subsequent events, which assertedly render the appeal moot.   These subsequent events, if they are to be considered at all, are more appropriately addressed to the trial court in the first instance.

FOOTNOTE.   See footnote *, ante.

4.   Respondents do not contend that the legislative-administrative distinction presents any unresolved factual issues in this case.  (See Southwest Diversified, Inc. v. City of Brisbane (1991) 229 Cal.App.3d 1548, 1556, 280 Cal.Rptr. 869 (distinction between legislative and administrative action may present factual issues bearing on the municipality's intent).)

5.   Government Code section 3505.1 is part of the Meyers–Milias–Brown Act, governing issues of county employee wages, hours, and other conditions of employment.  Government Code section 3505.1 provides:  “If agreement is reached by the representatives of the public agency and a recognized employee organization or recognized employee organizations, they shall jointly prepare a written memorandum of such understanding, which shall not be binding, and present it to the governing body or its statutory representative for determination.”

6.   Respondents also cite Geiger v. Board of Supervisors (1957) 48 Cal.2d 832, 838, 313 P.2d 545, for the supposed proposition that “even in the case of statutory language,” where authority is expressly granted to a board of supervisors as opposed to the county generally, the exercise of that authority is not subject to the referendum process.   However, the issue in Geiger was whether the Legislature could expand the referendum power to matters (such as taxes) that are expressly exempt from referendum under the constitution.   The Supreme Court said it could not.   Thus, a statute that gave taxing power to local governing bodies was construed as limited to the local governing bodies, not to the voters.  Geiger has no bearing on this case.

7.   Thus the Ballot Pamphlet with proposed amendments to the California Constitution and arguments to the electors for the General Election, November 3, 1970, at page 20, contains the following legislative counsel analysis explaining the amendment:“Article XI of the State Constitution now requires the Legislature to prescribe the compensation of the governing body of each county not having adopted a charter for its own government.   In addition, Article XI now further provides that any county having a charter shall provide in the charter for the compensation of the governing body of the county.“This measure would require that the governing body of each county not having a charter prescribe the compensation of its members and that such compensation be established by ordinance which is subject to referendum.   The revision would also require, with respect to any county having a charter which provides for the Legislature to prescribe the compensation of the governing body, that the governing body prescribe its own compensation by ordinance.”  (Emphasis added.)

8.   Former Political Code section 4056d was later reenacted as Government Code section 25301 (Stats.1947, ch. 424, § 1, p. 1114), which was repealed by the Legislature in 1973 (Stats.1973, ch. 140, § 9, p. 376.)   Of course, the Legislature's subsequent repeal of the statute does not operate to abridge the constitutional referendum power.  (Midway Orchards v. County of Butte, supra, 220 Cal.App.3d at p. 778, 269 Cal.Rptr. 796.)

9.   The ballot pamphlet further stated the amendment was a “county home rule” measure, the purpose of which was to take certain powers from the state Legislature and “bring the matter closer home.”   Nothing in this stated purpose supports relinquishment of referendum power.

10.   The June 1970 version of article XI, section 1(b), read as follows:  “The Legislature shall provide for county powers and an elected governing body in each county and prescribe compensation of its members.   The Legislature or the governing body may provide for other officers whose compensation shall be prescribed by the governing body.   The governing body shall provide for the number, compensation, tenure, and appointment of employees.”  (Emphasis added.)

11.   By its own terms, Ordinance Number 1161 said it would take effect in 30 days.   The citizen petition here was timely filed before the effective date set forth in the ordinance itself.   However, respondents now contend that the 30–day period set forth in the ordinance was a nullity because it was inconsistent with the Government Code.   As will appear, the Government Code cannot be applied to curtail the referendary power.

12.   Subdivision (e) was added to Government Code section 25123 in 1981 as an “urgency statute” on the ground that “[i]n order that agreements between counties and employee organizations presently being negotiated or to be negotiated may be given effect this year, it is necessary that this act take effect immediately.”  (Stats.1981, ch. 141, § 2, p. 924.)Subdivision (f) was added to Government Code section 25123 in 1983 as an “urgency statute” on the ground that “[i]n order that local ordinances affecting the salaries and wages of non-represented employees of a local agency, as well as those resulting from collective bargaining, may be given effect this year, it is necessary that this act take effect immediately.”   (Stats.1983, ch. 91, § 2, p. 185.)

FOOTNOTE.   See footnote *, ante.

SIMS, Associate Justice.

SPARKS, Acting P.J., and DAVIS, J., concur.