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Court of Appeal, First District, Division 1, California.


Civ. 36882.

Decided: April 09, 1976

Thomas M. O'Connor, City Atty., Milton H. Mares, Deputy City Atty., San Francisco, for defendants and appellants. Davis, Cowell & Bowe, Philip Paul Bowe and Richard G. McCracken, San Francisco, for plaintiff and respondent.

The City and County of San Francisco and certain of its agencies and officials (‘City’) have appealed from a judgment of the superior court confirming an arbitrator's award. The award gave effect to a memorandum of understanding (‘Memorandum’) signed by San Francisco Fire Fighters Local 798, International Association of Fire Fighters, AFL–CIO (‘Union’), the City's mayor, its board of supervisors, and its fire commission. The Memorandum provided for arbitration of grievances concerning ‘terms and conditions of employment,’ as established by the rules and regulations of the fire commission.

The City has chosen, by the vote of a majority of its electors, to adopt a charter (‘Charter’) under the provisions of the state's Constitution; the City's ordinances and regulations are subject to the restrictions and limitations of the Charter, which ‘shall supersede . . . all laws inconsistent therewith.’ (Cal.Const., art. XI, § 3a, formerly §§ 7 1/2, 8.)

The Charter ‘represents the supreme law of the City and County of San Francisco, subject, of course, to conflicting provisions in the United States and California Constitutions, and to preemptive state law.’ (Harman v. City and County of San Francisco, 7 Cal.3d 150, 161, 101 Cal.Rptr. 880, 887, 496 P.2d 1248, 1255.) ‘[Charter] cities may make and enforce all ordinances and regulations subject only to restrictions and limitations imposed in their several charters. . . . Within its scope, such a charter is to a city what the state Constitution is to the state.’ (Campen v. Greiner, 15 Cal.App.3d 836, 840, 93 Cal.Rptr. 525, 527.)

The Charter provides that the City's chief executive shall be a mayor, who is chosen by vote of the electorate. It also provides that the mayor shall appoint a fire commission.

Section 3.540 of the Charter states:

‘The fire department shall be under the management of [the] fire commission, . . .’

The powers and duties of boards and commissions are set forth in section 3.500 of the Charter as follows:

‘Each board and commission appointed by the mayor, or otherwise provided by this charter, shall have powers and duties as follows: (a) To prescribe reasonable rules and regulations not inconsistent with this charter for the conduct of its affairs, for the distribution and performance of its business, for the conduct and government of its officers and employees, . . .’ (Emphasis added.)

The ‘terms and conditions of employment’ which were the subject of arbitration in this case were established by the ‘rules and regulations' prescribed by the fire commission, as commanded by the Charter's section 3.500.

California's Legislature has enacted the ‘Meyers-Milias-Brown Act’ (hereafter sometimes the ‘Act’) which is codified as Government Code sections 3500–3510, inclusive. The Act's purpose is threefold, as follows:

‘[1. To] promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations'; ‘[2. To] promote the improvement of personnel management and employer-employee relations within the various public agencies in the State of California by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by such organizations in their employment relationships with public agencies'; ‘[3. To] strengthen merit, civil service and other methods of administering employer-employee relations through the establishment of uniform and orderly methods of communication between employees and the public agencies by which they are employed.’ (Gov.Code, § 3500.)

The Act provides, among other things, for meetings between public employee organizations and representatives of the public employer, in order to ‘confer in good faith regarding wages, hours, and other terms and conditions of employment . . ..’ (Gov.Code, § 3505.)

It is then provided:

‘If agreement is reached by the representatives of the public agency and a 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.’ (Gov.Code, § 3505.1; emphasis added.)

The Act further provides:

‘Nothing contained herein shall be deemed to supersede the provisions of existing state law and the charters, ordinances, and rules of local public agencies which establish and regulate a merit or civil service system . . ..’ (Gov.Code, § 3500; emphasis added.)

The City's Charter establishes and regulates such a merit or civil service system as is contemplated by Government Code section 3500, for its employees, including its fire fighters.

The City's fire fighters, exercising the right recognized by section 3500 of the Act had elected to be represented by the Union.

In 1973 the Union and representatives of the City, pursuant to the Act, met and conferred concerning the fire fighter's employment relationship with the City. In consideration, among other things, of the Union foregoing ‘the right to strike,’ there was prepared the above-noted Memorandum, according to Government Code section 3505.1.

The Memorandum, among other things, provided:

‘Grievance Procedure: The grievance procedure presently in effect, and utilized by the Employer and the Union, shall continue in operation for the purpose of settling disputes relating to the terms and conditions of employment in the Department; provided, however, that in the event no settlement is reached concerning any dispute, said dispute shall be subject to the impasse procedure hereinafter provided.’

‘[Impasse Procedure:] a) Pursuant to the grant of authority set forth in paragraph (d) of Section 3507 of the Government Code of the State of California, the parties agree that all unresolved issues between the parties relating to employment conditions, including grievances but excluding disciplinary proceedings, shall upon the request of either party hereto, be submitted to an impartial arbitrator for final and binding determination. Provided that before proceeding to arbitration both parties agree to meet mutually with the Mayor in order to attempt to resolve the impasse. [¶]b) The parties shall attempt to agree upon the impartial arbitrator provided for herein, but in the event they are unable to do so within five (5) days, then the American Arbitration Association shall be requested to nominate five (5) persons, all of whom shall be residents of San Francisco, qualified and experienced as labor arbitrators. If the parties cannot agree upon one (1) of the five (5) persons named to act as arbitrator, they shall strike names from the list alternately until one name remains, and said person shall then become the arbitrator. [¶]c) The decision of the arbitrator on any issue submitted as provided herein shall be final and binding on all parties. Any joint costs of arbitration shall be borne equally by the parties.’

The Memorandum, as previously noted, was thereafter approved by the City's mayor, its board of supervisors, and its fire commission. If they had the required authority the Memorandum thus became a binding agreement between the Union and the City. (See Glendale City Employees' Assn. v. City of Glendale, 15 Cal.3d 328, 124 Cal.Rptr. 513, 540 P.2d 609.)

Thereafter the Union and its fire fighter members considered themselves aggrieved by 44 of the fire commission's rules and regulations relating to terms and conditions of employment. The parties again met and conferred and were able to resolve 10 of the disputed matters. But an ‘impasse’ was reached on the remainder. These 34 rules and regulations were then submitted, under the Memorandum, to an arbitrator for his determination whether they should be continued as written, or be modified or rescinded.1

Among the fire commission's rules and regulations, or ‘terms and conditions of employment’ sought to be annulled or changed by the Union were such as related to the scope of the authority of ‘company commanders' over fire fighters, discipline for ‘incompetence’ and ‘unlawful violence,’ requirements of physical fitness and that fire fighters have no other gainful occupation, ‘prohibition against strikes' and ‘participation in sympathetic strikes,’ and the conditions under which fire fighters might be assigned and transferred.

During the ensuing arbitration proceedings the parties reached further agreement on some of the controverted matters. As to the remainder the arbitrator made his rulings; some favoring the Union, and some the City. The rulings themselves are irrelevant to our discussion for, as noted, the sole issue before us relates to the authority of the City's agencies and officials to approve the Memorandum insofar as it provided for arbitration of the fire commission's rules and regulations.

The City, for the reasons pointed out in footnote 1, ante, declined to honor the arbitrator's award, and the Union thereupon commenced the instant judicial proceedings in the superior court. As noted, the court thereafter entered a judgment confirming the arbitrator's award, from which judgment the appeal now before us was taken.

The basic issue in the superior court was whether the City through its mayor, board of supervisors, and fire commission, or any of them, was legally permitted to delegate to an arbitrator, the ‘rules and regulation’ making power entrusted to the fire commission by the Charter.

The City contends that the authority of the fire commission to prescribe its own reasonable rules and regulations is made exclusive by the Charter, and that such power may not be assigned or delegated to another, such as the arbitrator of the case before us.

The Union first insists that the City's contention was ‘flatly rejected’ by the state's Supreme Court in Fire Fighters Union v. City of Vallejo, 12 Cal.3d 608, 116 Cal.Rptr. 507, 526 P.2d 971 (decided October 2, 1974). But in that case the charter of the City of Vallejo expressly provided for arbitration when the city and its employees were otherwise unable to resolve certain disputes. The court simply gave effect to that charter provision. In the case at bench the City's Charter did not provide for arbitration of the rules and regulations in dispute, but instead placed the exclusive power and duty to formulate them in the fire commission. Fire Fighters Union v. City of Vallejo, supra, is wholly inapplicable to the issue before us.

We proceed with our consideration of the issue as presented by the City.

There is little disagreement over the basic principle with which we are concerned.

The rule is broadly stated in 2 McQuillin, The Law of Municipal Corporations (3d ed. 1966) section 10.39, as follows:

‘[T]he principle is fundamental and of universal application that public powers conferred upon a municipal corporation and its officers and agents cannot be delegated to others, unless so authorized by the legislature or charter. In every case where the law imposes a personal duty upon an officer in relation to a matter of public interest, he cannot delegate it to others, as by submitting it to arbitration.’ (Fns. omitted; emphasis added.)

Relying in part on the above-quoted authority of McQuillin the high court of the state in California, Sch. Employees Assn. v. Personnel Commission, 3 Cal.3d 139, 144, 89 Cal.Rptr. 620, 623, 474 P.2d 436, 439, asserted the same principle in this manner:

‘As a general rule, powers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates in the absence of statutory authorization.’ (Emphasis added.)

Under this rule there can be no doubt that the fire commission, in the absence of some higher authority, was without power to surrender its ‘powers and duties' to prescribe rules and regulations to an arbitrator. Its approval of the Memorandum's arbitration provisions, insofar as they dealt with its rules and regulations governing terms and conditions of employment, was obviously without legal effect.

Another statement of the rule presently under consideration is found in Kugler v. Yocum, 69 Cal.2d 371, 375, 71 Cal.Rptr. 687, 689, 445 P.2d 303, 305. The court there stated:

“The power . . . to change a law of the state is necessarily legislative in character, and is vested exclusively in the legislature, and cannot be delegated by it. . . .' [Citations.] Moreover, the same doctrine precludes delegation of the legislative power of a city [citations].' (Emphasis added.)

Earlier the same principle was stated by Chamber of Commerce v. Stephens, 212 Cal. 607, 610, 299 P. 728, 730, as follows:

‘[L]egislative or discretionary powers or trusts devolved by charter or law on a council or governing body, or a specified board or officer, cannot be delegated to others, . . .’ (Emphasis added.)

Adverting to the principle tersely expressed in California Sch. Employees Assn. v. Personnel Commission, supra, 3 Cal.3d 139, 144, 89 Cal.Rptr. 620, 623, 474 P.2d 436, 439, we inquire whether there was ‘statutory [or other legal] authorization’ for the delegation of power here at issue. If such an authorizations existed it necessarily arose out of the mayor's and board of supervisors' approval of the Memorandum.

But as we have pointed out the Charter ‘represents the supreme law’ of the City subject only to conflicting constitutional provisions ‘and to preemptive state law.’ (Harman v. City and County of San Francisco, supra, 7 Cal.3d 150, 161, 101 Cal.Rptr. 880, 887, 496 P.2d 1248, 1255.) The acts and rulings, and contracts, of lesser municipal authority are subject to the ‘restrictions and limitations' imposed by the charter. (Campen v. Greiner, supra, 15 Cal.App.3d 836, 840, 93 Cal.Rptr. 525.)

Here the Charter expressly confides the formulation of the fire department's rules and regulations covering terms and conditions of employment to the fire commission. And patently, the City's mayor and board of supervisors whose authority is derived from the Charter may not reasonably, or as a matter of law, have authority to do an act, or make an agreement, in derogation of the Charter.

From what we have said, it follows that neither the City's mayor, nor its board of supervisors, nor its fire commission, had authority to approve the Memorandum's provisions for arbitration of grievances concerning the fire commission's rules and regulations.

The Union has relied, in part, on such authority as Irwin v. City of Manhattan Beach, 65 Cal.2d 13, 51 Cal.Rptr. 881, 415 P.2d 769, and Kugler v. Yocum, supra, 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303, where delegation of certain of a city council's power has been held proper.

Irwin concerned a general law (as distinguished from ‘charter’) city which had ‘such powers as are ‘necessarily incident to those expressly granted or essential to the declared object and purposes of the municipal corporation.’' (P. 20, 51 Cal.Rptr. p. 885, 415 P.2d p. 773.) Among those powers was the right of control over the city's streets. The city council permitted property owners, subject to strict city supervision and detailed conditions (see pp. 17–18, 51 Cal.Rptr. 881, 415 P.2d 769), to build a private pedestrian overpass spanning a city street between two buildings owned by them. In a taxpayer's action to cancel the permit, an issue was raised whether the city had improperly delegated its jurisdiction over the public street.

It will be noted that the city (unlike the City and its agencies of the case at bench) was in no way restricted, by charter or otherwise, in its action; it had plenary power over its streets. For that reason alone, Irwin is inapplicable to the issue at hand. (See California Sch. Employees Assn. v. Personnel Commission, supra, 3 Cal.3d 139, 144, 89 Cal.Rptr. 620, 474 P.2d 436.) But we observe further that the court there found the delegated construction work to be proper because “ultimate control over matters involving the exercise of judgment and discretion has been retained by the public entity.” (Pp. 23–24, 51 Cal.Rptr. p. 887, 415 P.2d p. 775.) It was stated (p. 24, 51 Cal.Rptr. p. 887, 415 P.2d p. 775.): ‘It is difficult to imagine how the city herein could have more completely retained ultimate control over those matters involving the exercise of judgment and discretion relative to the pedestrian overpass.’

In the case before us the fire commission surrendered all ‘control,’ and all exercise of ‘judgment and discretion,’ over such of its rules and regulations as were not acceptable to the Union. Irwin is found inapposite to the issues presented here.

We have also considered Kugler v. Yocum, supra, 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303, which concerned the City of Alhambra. Voters of that city had secured sufficient signatures to an initiative petition which would fix the pay of certain city employees at the average paid for like services by an adjoining county and city. Since the City of Alhambra's charter empowered its council to establish the employee's salaries, such a matter was properly ‘within the electorate's initiative power.’ (P. 374, 71 Cal.Rptr. 687, 445 P.2d 303.) The council refused to recognize the initiative petition, because its passage ‘would constitute an unlawful delegation of legislative power’ (p. 375, 71 Cal.Rptr. p. 689, 445 P.2d p. 305) to the abutting public entities whose salary standards were followed. The Kugler court mandated the acceptance of the petition and the holding of an election thereon.

Parenthetically, here again we note that the Kugler city council, and hence the electorate in initiative proceedings, had plenary power over the matters in question without charter or other limitation or restriction, thus suggesting the inapplicability of that case also.

In its discussion the Kugler court articulated other exceptions to the strict rule against delegation of a city's legislative power. They may perhaps best be stated in this fashion. (1) Before there may be such a delegation there must be sufficient standards, or ‘safeguards' to prevent its abuse (pp. 375–376, 380–382, 71 Cal.Rptr. 687, 445 P.2d 303). (2) Discussing a related doctrine the court stated (p. 376, 71 Cal.Rptr. p. 690, 445 P.2d p. 306.): “The essentials of the legislative function are the determination and formulation of the legislative policy. Generally speaking, attainment of the ends, including how and by what means they are to be achieved, may constitutionally be left in the hands of others. The Legislature may, after declaring a policy and fixing a primary standard, confer upon executive or administrative officers the ‘power to fill up the details' by prescribing administrative rules and regulations to promote the purposes of the legislation and to carry it into effect. . . .’ [Citation.] Similarly, the cases establish that ‘[w]hile the legislative body cannot delegate its power to make a law, it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.” (3) Finally the court said (pp. 376–377, 71 Cal.Rptr. p. 690, 445 P.2d p. 306): ‘[T]he purpose of the doctrine that legislative power cannot be delegated is to assure that ‘truly fundamental issues [will] be resolved by the Legislature’ and that a ‘grant of authority [is] . . . accompanied by safeguards adequate to prevent its abuse.’ [Citations.] This doctrine rests upon the premise that the legislative body must itself effectively resolve the truly fundamental issues. It cannot escape responsibility by explicitly delegating that function to others or by failing to establish an effective mechanism to assure the proper implementation of its policy decisions.'

Applying these several principles the Kugler court found that the city's counsel could itself have made the ‘fundamental decision,’ i. e., that the city's employees' wages should be attuned to those of adjoining public entities, leaving to others the mere ‘implementation’ of that decision. And it concluded that proper ‘standards' and ‘safeguards' had been fixed, for: ‘The proposed Alhambra ordinance contains built-in and automatic protections that serve as safeguards against exploitive consequences from the operation of the proposed ordinance. Los Angeles is no more anxious to pay its firemen exorbitant compensation than is Alhambra. Los Angeles as an employer will be motivated to avoid the incurrence of an excessive wage scale; the interplay of competitive economic forces and bargaining power will tend to settle the wages at a realistic level.’ (P. 382, 71 Cal.Rptr. p. 694, 445 P.2d p. 310.)

Adverting to the 34 items submitted to the arbitrator according to the Memorandum, we observe that under that document the delegation of authority over each of those matters was absolute. The City retained neither ‘ultimate control,’ nor any control, over the arbitrator's ‘exercise of judgment and discretion’ as to any of the submitted items, contrary to the insistence of Irwin v. City of Manhattan Beach, supra, 65 Cal.2d 13, 51 Cal.Rptr. 881, 415 P.2d 769. ‘Safeguards' against abuse of the arbitrator's ‘exercise of judgment and discretion’ were lacking. The arbitrator would not be ‘implementing any policy’ declared by the City or its fire commission. Instead, to him would be given the ‘determination of policy’ applicable to each of the disputed rules and regulations of the fire commission. These policy determinations would, as we have pointed out, cover such matters as the authority of ‘company commanders,’ the ‘right’ of fire fighters to strike, disciplinary matters, the degree of ‘physical fitness' required, and the ‘conditions' of assignment and transfer of fire fighters. And finally, neither the City nor its fire commission would resolve the ‘truly fundamental’ issues of the matters submitted to arbitration. Such a delegation of municipal authority is squarely contrary to the principles expounded by Kugler v. Yocum, supra, 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303.

The Union relies heavily on certain ‘standards' of the Memorandum, as follows:

‘The arbitrator shall base his findings, opinion and order upon the following standards: 1. The lawful authority of the Employer; 2. The interests and welfare of the public; 3. A comparison of conditions of employment of the uniformed force of the Department with the conditions of employment of other employees performing similar services and with other employees generally in public and/or private employment in comparable communities; 4. Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of employment conditions through voluntary collective bargaining, mediation, fact finding, and arbitration between the parties, in the public service or in private employment.’

These recitals may not reasonably be said to continue ‘ultimate control’ over the exercise of judgment and discretion delegated to the arbitrator. Nor do the ‘truly fundamental issues' remain undelegated. They provide for no ‘implementation’ of the City's policies, and the ‘safeguards' and other criteria of Irwin v. City of Manhattan Beach, supra, and Kugler v. Yocum, supra, are lacking. The so-called ‘standards' gave no validity to the Memorandum.

The Union's final contention seems to be that somehow the Meyers-Milias-Brown Act legitimizes the Memorandum's arbitration procedure, even though it be contrary to the City's Charter. We find nothing to support the contention. As pointed out, the Act specifically provides that its Memorandum of understanding ‘shall not be binding.’ (Gov.Code, § 3505.1.) It becomes a binding agreement only when approved by the public entity in accordance with law, which in the case at bench would require an appropriate modification of the Charter. And, as has been pointed out, the Act (Gov.Code, § 3500) provides: ‘Nothing contained herein shall be deemed to supersede the provisions of existing state law and the charters, ordinances, and rules of local public agencies which establish and regulate a merit or civil service system . . ..’

It is noted that the ‘impasse’ and arbitration procedure of the Memorandum purport to be pursuant to ‘the grant of authority set forth in paragraph (d) of Section 3507 of the Government Code . . ..’ (See pp. 41–42, ante.) We observe no grant of authority for the delegation of power here at issue in paragragh (d) or elsewhere in that section of the Act. And the Union makes no contrary contention. While there seems to be no doubt that the City might have agreed, by appropriate Charter enactment, to the Memorandum's arbitration procedure (see Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d 608, 116 Cal.Rptr. 507, 526 P.2d 917), the Act nowhere permits that result by any lesser, or different, method.

For the several reasons stated the ‘Judgment on Award’ (described as an ‘order’ in the City's notice of appeal) entered January 15, 1975, is reversed.


1.  The City appears at all times to have denied any power in its officials or agencies to delegate the fire commission's Charter-imposed duties to an arbitrator. It contends that the Memorandum, at least in this respect, was approved in order that a judicial determination of the issue might be obtained. No contention of bad faith, or estoppel, or the like, is made by the Union in relation to the City's stated position.

ELKINGTON, Associate Justice.

SIMS, Acting P. J., and WEINBERGER, J.*, concur.