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Court of Appeal, First District, Division 2, California.

John L. TAYLOR, City Manager, and City of Berkeley, Plaintiffs and Respondents, v. Charles CRANE and Berkeley Police Association, Defendants and Appellants.

BERKELEY POLICE ASSOCIATION and Charles Crane, Plaintiffs and Appellants, v. CITY OF BERKELEY and John L. Taylor, City Manager of the City of Berkeley, Defendants and Respondents.

Civ. 38698 and Civ. 38699.

Decided: August 24, 1977

Carroll, Burdick & McDonough, Christopher D. Burdick, San Francisco, for defendants and appellants. Michael Lawson, City Atty., Berkeley, Charles O. Triebel, Jr., Oakland, for plaintiffs and respondents.

These consolidated appeals were filed by the Berkeley Police Association (Association) and Charles Crane (Crane) from adverse judgments entered after a court trial in two consolidated matters involving the City of Berkeley (City) and its city manager, John L. Taylor (City Manager). The only question presented is whether the trial court properly concluded that section 28 of the Berkeley City charter, which gives the City Manager the power and duty to appoint, discipline and remove all City employees, could not be modified by the supplemental memorandum of the parties submitting the question of Crane's termination to binding arbitration.1

The facts are not in dispute. On Jqnuary 29, 1974, the City and the Association entered into a supplemental memorandum of understanding pursuant to the Meyers-Milias-Brown Act (MMB) (Gov.Code,,§ 3500, et seq.). This supplemental memorandum was added to a previous memorandum between the parties of December 11, 1973, and provided for a grievance procedure regarding disputes. Like its predecessor, this memorandum was ratified by the City council. The City had also, pursuant to the MMB, entered into identical memoranda of understanding providing for grievance procedures culminating in arbitration with other recognized City employee organizations, including Firefighters, Local 1227 (representing Berkeley firemen), Service Employees, Locals 390 and 535 (representing non-uniform employees of the City), and Electrical Workers, Local 1245 (representing employees of the skilled trades and crafts). The supplemental memorandum contained the pertinent paragraphs, set forth below.2

About 10:30 p. m. on April 16, 1974, Crane, a police inspector and a permanent civil service career employee of the City, was off duty and had just finished dinner at a Berkeley restaurant in the company of Ms. Judith Brant. He noticed three persons who appeared to be burglarizing Ms. Brant's automobile and pursued the suspected wrongdoers on foot. During the pursuit, he fired two shots from his police service revolver; one shot hit Byron Nelson, age 13 years, in the back of the shoulder.

On April 20, 1974, the City Manager, pursuant to the City's police regulation No. 106, set forth below,3 terminated Crane's employment on the ground that Crane had violated the City police regulation No. 323, also set forth below.4

At that time, Crane was a member of the Association, organized pursuant to Government Code sections 3501 and 3508 (a part of the MMB). The Association is the recognized employee organization representing the employees and officers of the Berkeley Police Department (Department) in their employer-employee relations with the City. The Association and Crane contested his discharge and invoked the grievance procedure of the supplemental memorandum of understanding, quoted above, and an arbitration pursuant to those provisions ensued.

Paragraph 4 of the ‘arbitration agreement’ provided. ‘4. The issue to be determined by the Arbitrator in this appeal is as follows: ‘Was Inspector Crane properly discharged by City Manager John L. Taylor as provided in the Charter of the City of Berkeley, applicable Ordinances, Resolutions, Personnel Rules, Regulations, and Departmental Orders, Rules and Regulations?’ If not, what should the remedy be?' (Emphasis added.)

After hearing and argument on several issues, including preemption of City policy by state law, the issue of Crane's off-duty status, Crane's mental state at the time of the incident, and City instructions on the meaning of its regulations, the arbitrator found that Crane had violated the City regulation regarding the discharge of firearms, and decided Crane should be suspended as a disciplinary measure ‘for the violation proved [at the hearing].’ The arbitrator also held that ‘the Supplemental Memorandum of Understanding which governs this arbitration, requires the Arbitrator to make the determination whether the Grievant was discharged for adequate, just, or sufficient cause.’ (Emphasis added.)

The arbitrator then concluded that discharge was too severe a penalty for the violation of City regulations and ordered Crane restored to duty with back pay in the amount of $16,564.50. The City Manager chose not to accept the arbitrator's award of reinstatement and back pay, under the powers conferred upon him by Berkeley City charter section 28,5 and the instant actions ensued.

Aside from the home rule provision,6 the pertinent provisions of the City charter are as follows:

Article VII, section 27: ‘The City Manager

‘The Council shall appoint an officer who shall be known as the City Manager, who shall be the administrative head of the Municipal Government and who shall be responsible for the efficient administration of all departments.’

Article VII, section 28: ‘Powers and Duties of the City Manager

‘The City Manager shall be responsible to the Council for the efficient administration of all the affairs of the City. He shall have the power, and it shall be his duty: . . .

‘(b) Except as otherwise provided in this Charter, to appoint, disciplin or remove all heads or directors of departments, chief officials, and all subordinate officers and employees of the City, subject to the Civil Service provisions of this Charter. Neither the Council nor any of its committees or members shall dictate, either directly or indirectly, the appointment of any person to office or employment by the City Manager or in any manner interfere with the City Manager or prevent him from exercising his own judgment in the appointment of officers and employees in the administrative service. Except for the purpose of inquiry, the Council and its members shall deal with the administrative service solely through the City Manager, and neither the Council nor any member thereof shall give orders to any subordinates of the City Manager, either publicly or privately.

‘(c) To exercise control over all departments, divisions and bureaus of the City Government and overall appointive officers and employees thereof.’ (Emphasis added.)

Article IX, section 56: ‘[The City of Berkeley shall have the right and power] to establish a personnel board and to appoint the members thereof to serve without compensation, to administer a personnel system under rules and regulations to be made by the council.'7

The trial court found the facts substantially as stated above. The court further found that: 1) section 28(b) of the City charter, quoted above, gave the City Manager the exclusive power to discipline and remove all subordinate officers and employees of the City; 2) Government Code section 34459 (set forth below)8 provided that the City charter could only be amended or altered by a majority of the City's voters at an election proposing charter amendments, in accordance with article XI, section 3 of the state Constitution; 3) section e of the supplemental memorandum provided that arbitrator decisions were properly final and binding on both parties to the extent permitted by the charter.

On this basis, the trial court concluded that the supplemental memorandum was not intended to or was legally capable of modifying the City charter and that, therefore, the arbitrator's award was not binding on the City Manager.

The identical legal question here presented was recently before this court, Division One, in San Francisco Fire Fighters v. City and County of San Francisco, 68 Cal.App.3d 896, 137 Cal.Rptr. 607 (decided April 5, 1977; hg. den. June 2, 1977). The issue was the validity of a memorandum of agreement entered into pursuant to MMB between the San Francisco firefighters' union and the City and County of San Francisco, its mayor, board of supervisors and fire commission, providing for arbitration of grievances. The charter of the City and County of San Francisco expressly conferred formulation of the regulations in question to the San Francisco fire commission and did not provide for arbitration. This court concluded that although, like the supplemental memorandum in the instant case, the San Francisco memorandum had been prepared and presented pursuant to the MMB but, pursuant to Government Code section 3500, nothing in MMB was deemed to supersede the provisions of municipal charters, and held the firefighters' memorandum invalid. Justice Elkington, in reasoning equally applicable here, stated, so far as pertinent, at pages 898 and 899, 137 Cal.Rptr. at page 608: ‘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, § 3(a), 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.)

‘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 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 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.’ (Gov.Code, § 3505.1; italics 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; italics 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 . . ..’

In the San Francisco case, as in this one, the memorandum was approved by the city's legislative and executive officials. As Justice Elkington noted at page 900, 137 Cal.Rptr. 607, citing Glendale City Employees' Assn., Inc. v. City of Glendale, 15 Cal.3d 328, 124 Cal.Rptr. 513, 540 P.2d 609, the memorandum could become a binding agreement only if any of the city officials involved had the required authority to execute such an agreement. In concluding that the city and its officials were not legally permitted to delegate to an arbitrator powers specifically delegated to the fire commission by the charter, Justice Elkington continued at page 901, 137 Cal.Rptr. at page 609: ‘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; italics 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.’ (Italics added.)'

Likewise, here, there can be no doubt that the City Manager, in the absence of higher authority, was without power to surrender his charter-imposed duties to discipline and remove Crane. The approval of the supplemental memorandum by him and the other City officials was withot legal effect in view of City charter section 28(b), quoted above, at page 471. The supplemental memorandum itself recognized this limitation by its section 2e, quoted above at pages 469–470, footnote 2.

As further held by Justice Elkington in San Francisco Firefighters, supra, at page 902, 137 Cal.Rptr. at page 610: ‘Earlier the same principle was stated by Chamber of Commerce v. Stephens, 212 Cal. 630, 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, . . .’ (Italics 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, 474 P.2d 436, we inquire whether there was ‘statutory [or other legal] authorization’ for the delegation of power here at issue. If such an authorization 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, 496 P.2d 1248.) 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.)’

Likewise in the instant case, the City charter expressly confines the duty of disciplining and removing Crane to the City Manager. Patently, the City council, whose authority is derived from the charter, does not, as a matter of law, have authority to do an act, or make an agreement, in derogation of the charter. It follows that neither the City Manager nor the City council had authority to approve the provisions of the supplemental memorandum for the final and binding arbitration of Crane's grievances concerning his termination.9

We have read, with interest, all of the cases cited by Crane and the Association, but find none of them pertinent here. We note that the Connecticut cases are based on a particular Connecticut statute which expressly provides that collective bargaining agreements prevail over city charter provisions. As indicated above the pertinent section of the MMB, Government Code section 3500, states that municipal charters are not superseded by MMB agreements.

Finally, Crane and the Association, pursuant to our decision in Healdsburg Police Officers Assn. v. City of Healdsburg, 57 Cal.App.3d 444, 452, 129 Cal.Rptr. 216, urge that we apply the doctrine of equitable estoppel. The instant situation is not comparable to Healdsburg, supra. In Healdsburg, as in Layton v. Merit System Commission, 60 Cal.App.3d 58, 62–63, 131 Cal. Rptr. 318, the employees were deprived of procedural due process. Here, Crane chose to have the arbitration hearing instead of appealing to the City personnel board. The record indicates that he had a full and fair due process hearing before the arbitrator. Neither denial of any of Crane's due process rights nor an unknowing waiver of his constitutional due process rights to a hearing is involved. We conclude that the instant case is not a proper one for the application of the doctrine of equitable estoppel.

The judgments in favor of the City and City Manager are affirmed.


1.  In No. 38699, superior court action No. 461692–2 was brought by the Association and Crane to confirm an award of arbitrator, pursuant to Code of Civil Procedure section 1285, and for a writ of mandate to compel the City Manager and the City to comply with that award. In No. 38698, superior court action No. 462184–7, an action was brought by the City and the City Manager against the Association and Crane, seeking a declaratory relief as to whether, under the applicable City charter provision, the award of the arbitrator was binding on the City and the City Manager. Both matters were consolidated for trial. The parties stipulated that the entire record in both files could be utilized by the court in arriving at its decision, provided that separate findings of fact and conclusions of law and judgments would be prepared for each action.

2.  ‘GRIEVANCE PROCEDURE‘1. A grievance is any dispute which involves the interpretation, application, claimed violation or claimed non-compliance with the provisions of the Memorandum of Understanding between the City and the Association, or of any City Ordinance, Rule or Regulation which may have been or may hereafter be adopted by the City to govern personnel practices or working conditions of the Berkeley Employees covered by such Memorandum of Understanding. . . .‘2. Grievances shall be processed in the following manner: . . ..‘d. In the event the parties hereto are unable to reach a mutually satisfactory accord on any grievance . . . which arises and is presented during the term of this Memorandum of Understanding, such grievance shall be submitted to an Adjustment Board comprised of three (3) Association Representatives and three (3) representatives of the City.‘e. If an Adjustment Board is unable to arrive at a majority decision or if for any other reason forty-five (45) days have elapsed from the date upon which the grievance was received by the Director of Personnel, either the Association or the City may require that the grievance be referred to an impartial arbitrator, who shall be designated by mutual agreement between the Association and the City Manager.‘Adjustment Board and Arbitrator decisions on matters properly before them which pertain to the suspension or discharge of an employee shall be final and binding on both parties hereto, to the extent permitted by the Charter of the City.‘Adjustment Board and Arbitrator decisions on matters properly before them which do not pertain to suspension or discharge shall be in the form of recommendations to the City Manager, who may, within five (5) working days of receipt of said decision, reject said decision.‘In the event of said rejection, then as to that particular grievance, the fees and expenses of the arbitrator and of the Court Reporter shall not be shared by the Association, and full payment thereof shall be the sole responsibility of the City. . . .‘3. No grievance involving the suspension or discharge of an employee will be entertained unless it is filed in writing with the Director of Personnel within five (5) working days of the time at which the affected employee was notified of such action in writing. If the Director of Personnel in pursuance of the procedures outlined in Item 2–b, above, or the City Manager in pursuance of the provisions of Item 2–c, above, resolve a grievance which involves suspension or discharge, they may agree to payment for lost time or to reinstatement with or without payment for lost time.’ (Emphasis added.)

3.  ‘Failure of an employee either willfully, or through negligence or incompetence, to perform the duties of his rank or assignment, or violation by an employee of any Police Regulation or Order, or instruction having the effect of a Regulation or Order, may be considered sufficient cause for discharge. . . .’ (Emphasis added.)

4.  ‘Firearms—Discharge of—When Permitted. Officers shall not discharge firearms in connection with police duty except under the following circumstances . . .‘3. In the necessary defense of the officer's life.‘4. In the necessary defense of the life of another person.‘5. To apprehend a known felon, when the officer has reasonable cause to believe he may be armed and may be an immediate threat to life.’

5.  The City Manager's letter dated March 11, 1975, setting forth the basis for his rejection is as follows: ‘It is my understanding that Mr. Crane may appeal my decision. He may argue that the Memorandum of understanding provides that the arbitrator's decision is binding on the City Manager. I am informed that when the memorandum was being discussed by representatives of the city and police officers, it was clear that the phrase ‘to the extent permitted by the Charter’ was in fact a real limitation which should be recognized.‘In any event, I believe that the City Council does not have the right to bargain away the powers of the City Manager, conferred upon him by Charter, by a vote of the people of this city, and give it to a third party arbitrator. Likewise, the City Manager does not have the right to surrender that power and that duty.’ (Emphasis added.)

6.  Section 115: ‘The City of Berkeley shall have the right and power to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this charter, provided, that nothing herein shall be construed to prevent or restrict the City from exercising or consenting to, and the City is hereby authorized to, exercise any or all rights, powers, privileges heretofore or hereafter granted or prescribed by the general laws of the State.’ (Emphasis added.)In addition, the City has reserved for itself the following powers under Article IX, Section 49, of the charter:‘(62) Additional Powers: To enact appropriate legislation and do and perform any and all other acts and things which may be necessary and proper to carry out the general powers of the City, or in any of the provisions of this Charter, and exercise all powers not in conflict with the constitution of the State, this Charter or ordinances adopted by the people of the City.’

7.  Pursuant to the power vested in it by section 56 of Article IX, the City council adopted a personnel ordinance for the City (Ordinance No. 2342–NS), that provides in pertinent part as follows:‘Section 4. Powers of the City Manager.‘Pursuant to the provisions of Section 28 of Article VII of the Charter of the City of Berkeley and in accordance with the provisions of this ordinance and the rules established hereunder, the City Manager shall retain the power to make transfers, promotions, demotions, reinstatements, and lay-offs, and to suspend or dismiss employees, subject to the provisions of this Ordinance and the Rules established hereunder, it being the intent and spirit of this Ordinance to provide a fair and just approach to municipal employment in order that City employees may be selected and promoted on a merit basis.’ (Emphasis added.)‘Section 6. Adoption of Rules.‘In addition to such other matters as may be necessary and proper to carry out the intent and purposes of this Ordinance, rules shall be adopted by the City Council, upon recommendation by the City Manager, and Personnel Board, establishing specific procedures to govern the following phases of the personnel program. . . ..‘(h) The separation from the service of employees through law-off, suspension, dismissal and for incapacity to perform the required duties.’ (Emphasis added.)‘Section 12. Filing of Charges.‘(a) The tenure of every employee holding a position . . . shall be during good behavior, and proved fitness for the position on the basis of duties and responsibilities, but any officer or employee may be removed or otherwise disciplined as provided by this ordinance and the rules established hereunder.‘(b) Any employee in the competitive service who has been demoted, suspended, dismissed or reduced in pay shall be entitled to receive a written statement for the reasons of such action within three days, and he shall have three days time thereafter within which to answer in writing thereto.’ (Emphasis added.)Pursuant to section 6 of Ordinance 2342–NS, the City council adopted City Resolution No. 34480–NS (usually referred to as the City's personnel rules and regulations). These provide, in pertinent part as follows:‘Rule XV. Section 1. Discharge: Any employee in the competitive service may be discharged at any time by the City Manager, but if the probationary period has been completed, then said discharge must be for a cause. An employee who has been discharged shall be entitled to receive a written statement of the reasons for such action as provided in the Personnel Ordinance and these Rules.’ (Emphasis added.)‘Rule XVI. Section 1. Complaints: Any employee in the competitive service shall have the right to appeal to the Personnel Board relative to any situation affecting his employment status or conditions of employment, except in instances where the right of appeal is prohibited by the Personnel Ordinance or these Rules.’ (Emphasis added.)‘Section 2. Investigations and Hearings: Upon receipt of any complaint, the Personnel Board shall make such an investigation as it may deem necessary. In cases where the employee is entitled to hearing as a matter of right, such as in instances of demotion, reduction or discharge, and in other cases whenever the Board shall deem it advisable to hold a hearing, such hearing shall be held within twenty (20) days after the request for the hearing was made.’ (Emphasis added.)

8.  ‘The charter of any city or city and county may be amended or repealed by proposals submitted by the governing body on its own motion or by petition signed by 15 percent of the registered electors, or both. Such proposals shall be submitted to the electors at either a special election called for that purpose or at any general or special election.’

9.  In San Francisco Fire Fighters, supra, at pages 902 and 903, 137 Cal.Rptr. 607, Justice Elkington explained how the conclusion was aided by Bagley v. City of Manhattan Beach, 18 Cal.3d 22, 132 Cal.Rptr. 668, 553 P.2d 1140 (Manhattan Beach, unlike the charter City here involved or San Francisco, is a general law city (see Gov.Code, § 34102)) and distinguished Fire Fighters Union v. City of Vallejo, 12 Cal.3d 608, 116 Cal.Rptr. 507, 526 P.2d 971 (decided Oct. 2, 1974), in which the charter of the City of Vallejo (adopted by vote of its electors) expressly provided for arbitration when the city and its employees were otherwise unable to resolve certain disputes.

TAYLOR, Presiding Justice.

ROUSE and COHN (Assigned by the Chairperson of the Judicial Council), JJ., concur.

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