SAN FRANCISCO FIRE FIGHTERS LOCAL 798 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS AFLCIO v. BOARD OF SUPERVISORS OF CITY AND COUNTY OF SAN FRANCISCO

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

SAN FRANCISCO FIRE FIGHTERS, LOCAL 798, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFLCIO, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

The PEOPLE ex rel. George EVANKOVICH et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

Civ. 38823, Civ. 40705.

Decided: August 25, 1977

Davis, Cowell & Bowe, Philip Paul Bowe, Duane W. Reno, San Francisco, for plaintiff and appellant San Francisco Fire Fighters, Local 798. Evelle J. Younger, Atty. Gen., Clayton P. Roche, Deputy Atty. Gen., Neyhart & Anderson, John L. Anderson, Jerome M. Garchik, San Francisco, Brundage, Beeson & Pappy, Stephen H. Naiman, Los Angeles, for plaintiffs and appellants People ex rel. Evankovich et al. Thomas M. O'Connor, City Atty., George E. Baglin, Burk E. Delventhal, Deputy City Attys., San Francisco, for defendants and respondents.

These two actions were separately commenced in the superior court for the purpose of obtaining a judicial declaration that an election, by which the voters of the City and County of San Francisco (hereafter ‘City’) purported to amend the City's charter, was void and without legal effect. In proceedings of the nature of general demurrers to the complaints, the superior court in each action concluded that no cause of action had been, or could be, stated, and accordingly entered judgments of dismissal.

The plaintiffs of the respective actions have appealed from the judgments. Since the issues are substantially the same we have consolidated the two appeals for hearing, and for our consideration and determination.

From the complaints, and from such public records as the superior court was asked to judicially notice, the following factual context appears.

In August 1975, plaintiff San Francisco Fire Fighters, Local 798, International Association of Fire Fighters, AFL-CIO (hereafter sometimes ‘the Union’), called an illegal strike1 of its fire fighter members employed by the City. The strike was joined by the uniformed members, generally, of the City's police department.

Pursuant to Government Code section 34459, the City's board of supervisors, on its own motion, thereafter submitted proposals for amendment of the City's charter to its electors, at an election held November 4, 1975. The proposals were designated ballot propositions O, P and Q.

Proposition O would add section 8.345 to the City's charter. It provided for the dismissal of fire fighters and policemen who strike.

Proposition P would amend section 8.405 of the charter to provide that the City's fire fighters' and policemen's wages shall equal the average paid for similar services by other California cities with populations of 350,000 or more.

Proposition Q would amend the City's charter section 8.452 by limiting a fire fighter's continuous tour of duty to 14 hours.

The three proposed charter amendments were adopted by San Francisco's electors at the November 4, 1975, election by margins of the approximate order of two to one. It is that election which plaintiffs sought to invalidate by their actions.

At the threshold of our inquiry certain long-existent legal principles are apposite. We briefly delineate them.

‘It is a primary principle of law as applied to election contests that it is the duty of the court to validate the election if possible. That is to say, the election must be held valid unless plainly illegal.’ (Rideout v. City of Los Angeles, 185 Cal. 426, 430, 197 P. 74, 75; see also In re East Bay, etc., Water Bonds of 1925, 196 Cal. 725, 744, 239 P. 38; People v. Prewett, 124 Cal. 7, 10, 56 P. 619; Willburn v. Wixson, 37 Cal.App.3d 730, 736, 112 Cal.Rptr. 620; Menlo Park City School Dist. v. Tormey, 218 Cal.App.2d 76, 80, 32 Cal.Rptr. 82.)

‘The courts are reluctant to defeat a fair expression of popular will in an election and will not do so unless so required by the plain mandate of the law.’ (Veterans' Finance Com. of 1943 v. Betts, 55 Cal.2d 397, 401, 11 Cal.Rptr. 103, 105, 359 P.2d 471, 473; City of Coronado v. San Diego Unified Port Dist., 227 Cal.App.2d 455, 468, 38 Cal.Rptr. 834.)

‘[N]o construction of an election law should be indulged that would disfranchise any voter if the law is reasonably susceptible of any other meaning.’ (McMillan v. Siemon, 36 Cal.App.2d 721, 726, 98 P.2d 790, 793.)

‘It is the general rule that any errors or defects claimed to exist in a notice of election will not invalidate the election unless there is some showing that the electors were in fact misled by such defects.’ (Veterans' Finance Com. of 1943 v. Betts, supra, 55 Cal.2d 397, 401, 11 Cal.Rptr. 103, 105, 359 P.2d 471, 473.)

It is firmly held that an election will not be set aside because the officials in control of it ‘have failed to strictly comply with the law, where it appears that no harm was done thereby, . . .’ (Hayes v. Kirkwood, 136 Cal. 396, 402, 69 P. 30, 32; see also In re East Bay, etc., Water Bonds of 1925, supra, 196 Cal. 725, 744, 239 P. 38; Kenworthy v. Mast, 141 Cal. 268, 271, 74 P. 841; Willburn v. Wixson, supra, 37 Cal.App.3d 730, 736–737, 112 Cal.Rptr. 620; Dennen v. Jastro, 23 Cal.App. 264, 267, 137 P. 1069.)

And ‘every reasonable presumption and interpretation is to be indulged in favor of the right of the people to exercise the elective process.’ (Hedlund v. Davis, 47 Cal.2d 75, 81, 301 P.2d 843, 847.)

The first issue presented for our consideration is stated by plaintiffs in this manner: ‘Whether a cause of action was stated by the allegations of the complaint that the Board of Supervisors failed to comply with the procedural requirements of Sections 3504.5 and 3505 of the Government Code prior to submitting to the electorate proposed amendments to the San Francisco Charter which change wages, hours, and other terms and conditions of municipal employment.’

Sections 3504.5 and 3505 are part of the Meyers-Milias-Brown Act (hereafter sometimes the ‘Act’) which is codified as part 7, division 4, chapter 10 (entitled ‘Local Public Employee Organizations') and as sections 3500–3510, of the Government Code. It provides, inter alia, that ‘public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.’ (Gov. Code, § 3502.) It also requires that the public employer ‘shall give reasonable written notice to [the] employee organization affected of any ordinance, rule, resolution, or regulation directly relating to matters' within the employee organization's scope of representation, and give the ‘employee organization the opportunity to meet with’ representatives of the public employer. (Gov. Code, § 3504.5.) It then provides that such public employer representatives and the employee organization ‘shall meet and confer in good faith’ in respect of such matters. (Gov. Code, § 3505.) (The emphasis of this paragraph has been supplied by us.)

Plaintiffs contend that the City's charter amendment election was void by reason of the board of supervisors' failure to ‘give reasonable written notice’ to, and ‘meet and confer in good faith’ with, the Union and police representatives as required by the Meyers-Milias-Brown Act, in relation to the proposed charter amendments. We find the contention invalid, and for the following reasons.2

As noted, the proposed charter amendments here under consideration were submitted to the City's electors under the authority of Government Code section 34459. That statute provides:

‘The charter of a city and county may be amended or repealed by proposals submitted by the governing body or by a petition signed by 10 percent of the qualified electors of the city and county, computed upon the total number of votes cast in the city and county for all candidates for Governor at the last general election at which a Governor was elected, 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.’ (Emphasis added.)

By its terms the Meyers-Milias-Brown Act is inapplicable to charter amendments proposed by the City's governing body, its board of supervisors, as here, under existing state law. The Act states:

‘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.) The City is a public agency which establishes and regulates a merit or civil service system.

The Act also provides:

‘The scope of representation shall include all matters relating to employment conditions and employer-employee relations . . . except, however, that the scope of representation shall not include consideration of the merits [or] necessity . . . of any . . . activity provided by law . . ..’ (Gov. Code, § 3504; emphasis added.)

The power and duty cast, by Government Code section 34459, upon the City's board of supervisors to propose such charter amendments as it shall deem advisable is such an ‘activity provided by law.’

But an even weightier reason is found in California's Constitution, article XI, section 3, of which Government Code section 34459 is implemental. It states:

‘(a) For its own government, a county or city may adopt a charter by majority vote of its electors voting on the question. The charter is effective when filed with the Secretary of State. A charter may be amended, revised, or repealed in the same manner. A charter, amendment, revision, or repeal thereof shall be published in the official state statutes. County charters adopted pursuant to this section shall supersede any existing charter and all laws inconsistent therewith. The provisions of a charter are the law of the State and have the force and effect of legislative enactments.

‘(b) The governing body or charter commission of a county or city may propose a charter or revision. Amendment or repeal may be proposed by initiative or by the governing body.

‘(c) An election to determine whether to draft or revise a charter and elect a charter commission may be required by initiative or by the governing body. . . .’ (Emphasis added.)

The Legislature may, of course, by statute, facilitate the operation of such a constitutional provision as has been done by section 34459, and provide “‘convenient remedies for the protection of the right secured, . . .”’ (Chesney v. Byram, 15 Cal.2d 460, 463, 101 P.2d 1106, 1108.) ‘[R]easonable legislative regulation which is in furtherance of and not a limitation upon the power reserved in the Constitution to the people is valid and enforceable.’ (Warner v. Kenny, 27 Cal.2d 627, 629, 165 P.2d 889, 890.)

But it is a strict rule that “‘all such legislation must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it.”’ (Chesney v. Byram, supra, 15 Cal.2d 460, 464, 101 P.2d 1106, 1108; Chester v. Hall, 55 Cal.App. 611, 616, 204 P. 237.) “It is not and will not be questioned but that if the constitution has vested such power, it is not within the legislative power, either by its silence or by direct enactment, to modify, curtail, or abridge this constitutional grant.” (People v. Western Air Lines, Inc., 42 Cal.2d 621, 637, 268 P.2d 723, 732; Western Assn., etc., R.R. v. Railroad Comm., 173 Cal. 802, 804, 162 P. 391.) And it has been held ‘self-evident that the legislature itself could not abridge not even hamper the exercise of those powers' reserved by the Constitution to the electors of a city or county. (Brown v. Boyd, 33 Cal.App.2d 416, 421, 91 P.2d 926, 930.)

Where the state's Constitution, as here, reserves legislative power to the people, statutes will be liberally construed so as to give effect to that power. (Warner v. Kenny, supra, 27 Cal.2d 627, 629, 165 P.2d 889; Gage v. Jordan, 23 Cal.2d 794, 799, 147 P.2d 387; Ley v. Dominguez, 212 Cal. 587, 593, 299 P. 713.)

It will be seen that article XI, section 3, of the state's Constitution gives to the City's board of supervisors the unabridged right to propose charter amendments to the City's electors.

Were we to accept plaintiffs' argument of the applicability of the Meyers-Milias-Brown Act, then the City's board of supervisors before proposing any charter amendment affecting the conditions of employment of its fire fighters or policemen must give written notice thereof the Union or police representatives. Representatives of the board of supervisors or the City must then meet and confer in good faith with the Union or police representatives on whether there shall be such a charter amendment proposal, and if so, then on its terms. The parties must display ‘a genuine desire to reach agreement’, and ‘must make a serious attempt to resolve differences and reach a common ground . . ..’ (Placentia Fire Fighters v. City of Placentia, 57 Cal.App.3d 9, 25, 129 Cal.Rptr. 126, 138.) The Union or police representatives would be entitled to ‘a voice’ in respect of the proposed charter amendment and its contents. (See California Federation of Teachers v. Oxnard Elementary Sch., 272 Cal.App.2d 514, 524, 77 Cal.Rptr. 497.) And if the City's representatives should fail to meet the Union's or police representatives' concept of conferring in ‘good faith,’ then the proposed charter amendment election, at the latters' option, will ordinarily await the outcome of appropriate mandate proceedings. (Huntington Beach Police Officers' Assn. v. City of Huntington Beach, 58 Cal.App.3d 492, 129 Cal.Rptr. 893.)

It becomes patent that giving the Meyers-Milias-Brown Act the interpretation, and effect, argued for by plaintiffs, would constitute an invalid abridgment of the power vested in the City's board of supervisors by the state's Constitution to propose amendments to the charter by the City's electors.

The second issue presented by the appeals is stated as follows: ‘Whether a cause of action was stated by the allegations of the complaint that the submission to the electorate and subsequent adoption of the proposed amendments to the San Francisco Charter set forth in ballot propositions ‘O’, ‘P’ and ‘Q’ contravened a written agreement executed by Mayor Joseph L. Alioto in the exercise of emergency powers granted him by the Charter.'

The issue is based upon section 3.100 of the City's charter which provides:

‘In case of public emergency involving or threatening the lives, property or welfare of the citizens, or the property of the city and county, the mayor shall have the power, and it shall be his duty, to summon, organize and direct the forces of any department in the city and county in any needed service; to summon, marshal, deputize or otherwise employ other persons, or to do whatever else he may deem necessary for the purpose of meeting the emergency. The mayor may make such studies and surveys as he may deem advisable in anticipation of any such emergency.’

Under the Claimed authority of this provision the City's mayor declared an emergency on account of the fire fighters' and policemen's strike, and then himself reached and signed, on behalf of the City, an agreement acceptable to the Union and the striking policemen. The agreement declared in part: ‘4. Amnesty. The City agrees that as an essential condition of this Agreement it shall provide ‘Total Amnesty’ as to all occurrences arising out of or related to the recent labor dispute. ‘Total Amnesty’ shall include, but not be limited to, action of any kind which in any way adversely affects or discriminates in regard to hire or tenure of employment, or any wages, terms or conditions of employment.' The proposed charter amendments were contrary to the amnesty agreement.

Plaintiffs argue that since section 3.100 of the City's charter gave the mayor power to do whatever ‘he may deem necessary for the purpose of meeting the emergency,’ the City's electors were powerless to amend the charter in any manner contrary to the ‘Amnesty’ provision of the agreement signed by the mayor.

This argument also lacks validity. Such power as the mayor may have had to declare an emergency and agree to conditions of the strike's settlement was derived from the City's charter. The charter was subject 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.) Among such conflicting provisions were Government Code section 34459, and the state's Constitution, article XI, section 3, empowering the City's board of supervisors to propose charter amendments for consideration by the City's electors. We accordingly find plaintiffs' second contention to be invalid.

The remaining argument of plaintiffs is that the City's charter amendment election was void because it was ‘submitted in violation of mandatory and prohibitory provisions [of § 2.23] of the San Francisco Administrative Code.’

Section 2.23, and the administrative code in which it was to be found, were enacted by ordinance of the City's board of supervisors. The section's preamble stated: ‘Any proposal for amendment of the charter ordered submitted to the electors by the board of supervisors on its own motion shall be so ordered pursuant to the provisions of applicable state law, with the further limitations imposed as follows: . . .’ (The remainder of the section will be found in the margin.)3

Plaintiffs' complaints and judicial notice properly taken by the trial court established, and it appears conceded, that the requirements of section 2.23 were not substantially followed by the City's board of supervisors in relation to the charter amendment election.

The City contends that the section constituted an invalid self-imposed abridgment (it will be noted that it is expressly described as ‘limitations' by its preamble) of the constitutional power conferred upon its board of supervisors to propose charter amendments. Plaintiffs, on the other hand, insist that it was implemental (as found proper in Chesney v. Byram, supra, 15 Cal.2d 460, 464, 107 P.2d 1106, and Warner v. Kenny, supra, 27 Cal.2d 627, 629, 165 P.2d 889) of the constitutional authority to propose such charter amendments.

We need not resolve this argument for, assuming arguendo the validity of plaintiffs' instant position, we are of the opinion that other legal principles mandate the conclusion that plaintiffs' final contention is likewise without merit.

In Rideout v. City of Los Angeles, supra, 185 Cal. 426, 430–431, 197 P. 74, 75–76, it is stated: ‘It is a primary principle of law as applied to election contests that it is the duty of the court to validate the election if possible. That is to say, the election must be held valid unless plainly illegal. . . . Accordingly, a distinction has been developed between mandatory and directory provisions in election laws; a violation of a mandatory provision vitiates the election, whereas a departure from a directory provision does not render the election void if there is a substantial observance of the law and no showing that the result of the election has been changed or the rights of the voters injuriously affected by the deviation. . . . Whether or not a provision, the observance of which is not expressly declared by law to be essential to the validity of the election, is mandatory or merely directory, depends upon the character of the act prescribed. If the act enjoined goes to the substance or necessarily affects the merits or results of the election, it is mandatory; otherwise directory.’

Menlo Park City School Dist. v. Tormey, supra, 218 Cal.App.2d 76, 80–81, 32 Cal.Rptr. 82, 84, quotes with approval the rules: “[W]e are of the opinion that the correct rule, and the one supported by the great weight of authority, may be stated as follows: Statutory directions as to the time and manner of giving notice of elections are mandatory upon the officers charged with the duty of calling the election, and will be upheld strictly in a direct action instituted before an election; but after an election has been held, such statutory requirements are directory, unless it appears that the failure to give notice for the full time specified by the statute has prevented electors from giving a full and free expression of their will at the election, or unless the statute contains a further provision, the necessary effect of which is that failure to give notice for the statutory time will render the election void. . . .' . . . ‘Upon considerations like these the courts have held that the voice of the people is not to be rejected for a defect, or even a want of notice, if they have, in truth, been called upon and have spoken.”

Dennen v. Jastro, supra, 23 Cal.App. 264, 267, 137 P. 1069, 1070–1071 says: ‘A failure to comply with some technical direction of the statute, where due alone to mistake or inadvertence on the part of those whose duty it is to prepare and furnish the ballot, should not disfranchise the entire vote of the district and vitiate the election, unless it be made to appear that by reason of the irregularity the result was different from what it would otherwise have been, or that it prevented the voter from freely, fairly, and honestly expressing his choice . . .’

The rule has often been iterated; see Canales v. City of Alviso, 3 Cal.3d 118, 127, 89 Cal.Rptr. 601, 474 P.2d 417; Scott v. Kenyon, 16 Cal.2d 197, 202, 105 P.2d 291; Davis v. County of Los Angeles, 12 Cal.2d 412, 426–427, 84 P.2d 1034; Kenworthy v. Mast, supra, 141 Cal. 268, 271, 74 P. 841; Hayes v. Kirkwood, supra, 136 Cal. 396, 401–402, 69 P. 30; Murphy v. City of San Luis Obispo, 119 Cal. 624, 632, 51 P. 1085; Atkinson v. Lorbeer, 111 Cal. 419, 421, 44 P. 162; Tebbe v. Smith, 108 Cal. 101, 111–112, 41 P. 454; Russell v. McDowell, 83 Cal. 70, 77–78, 23 P. 183; Alden v. Superior Court, 212 Cal.App.2d 764, 771–772, 28 Cal.Rptr. 387.

It does not appear from plaintiffs' complaints or otherwise, nor do they contend, that the City's board of supervisors' failure to follow section 2.23 ‘injuriously affected the rights of the voters,’ or ‘affected the results of the election,’ or ‘prevented electors from giving a full and free expression of their will at the election,’ or ‘from freely, fairly, and honestly expressing [their] choice . . ..’

It follows that the requirements of section 2.23 in the case before us must be deemed directory, and that the City's board of supervisors' failure to observe them did not affect the validity of the charter amendment election.

For these several reasons plaintiffs' complaints, and relevant judicial notice taken in aid of them, established no cause of action against the City, or its board of supervisors, or anyone, and the respective judgments of dismissal were properly entered.

It is found unnecessary to consider other contentions and points raised by the parties, including the City's board of supervisors' contention that an official act of a state or municipal legislative body will never be declared void for noncompliance with rules of procedure made by itself (see City of Pasadena v. Paine, 126 Cal.App.2d 93, 96, 271 P.2d 577; McDonald v. State, 80 Wis. 407, 50 N.W. 185, 186; South Georgia Power Co. v. Baumann, 169 Ga. 649, 151 S.E. 513, 516), and the argument that the Union may not rely upon an agreement whose validity depends upon an emergency created by itself in violation of law (see Lab. Code, § 1962).

The judgments are affirme.

FOOTNOTES

1.  Labor Code section 1962, dealing with publicly employed fire fighters, provides:‘Employees shall have the right to self-organization, to form, join, or assist labor organizations, to present grievances and recommendations regarding wages, salaries, hours, and working conditions to the governing body, and to discuss the same with such governing body, through such an organization, but shall not have the right to strike, or to recognize a picket line of a labor organization while in the course of the performance of their official duties.’ (Emphasis added.)

2.  No contention is made that the Meyers-Milias-Brown Act was not fully complied with in the fruitless negotiations leading to the fire fighters' and policemen's strike.

3.  ‘(a) Introduction; referral to committee; committee report. A proposed charter amendment must be introduced by a board member at a regular board meeting held not less than 154 days prior to the election at which it is to be acted upon by the electors. Upon introduction, it must be referred to an appropriate board committee for public hearing.‘(b) Referral to city attorney. Immediately after its reference to committee, any proposed charter amendment which has not been prepared or approved as to form by the city attorney shall be transmitted by the clerk to the city attorney for preparation or approval as to form. The city attorney shall return it to the board prepared or approved as to form, or a negative report in lieu thereof, within 10 days after receipt from the clerk.‘(c) Controller's statement. Immediately after reference to committee and preparation or approval as to form by the city attorney, such proposed charter amendment shall be referred by the clerk to the controller, and the committee shall not report it to the board, nor shall the board order it submitted to the electors, prior to receipt of the controller's written statement pursuant to charter section 9.112, analyzing the proposal as to its cost and effect upon the tax rate. The controller's statement shall be submitted to the board within twenty-one days after his receipt of the proposed charter amendment.‘(d) Referral to civil service commission and retirement system. Immediately after its reference to committee and preparation or approval as to form by the city attorney, any proposed charter amendment which affects personal services shall be referred by the clerk to the civil service commission and the retirement system for report as to the effect thereof, if any, upon matters within their respective jurisdictions. Such reports shall be submitted to the board within twenty-one days after their receipt of the proposed charter amendment.‘(e) Amendments to proposed charter amendments. An amendment of substance to a proposed charter amendment, submitted to the board or a board committee, shall be referred by the clerk to the city attorney for preparation or approval as to form and shall be returned to the clerk by the city attorney within seven days after receipt. Thereupon, the clerk shall transmit it to the controller, and to the civil service commission and retirement system when appropriate; and they shall report to the board thereon within ten days after receipt.‘(f) The committee before which a proposed charter amendment, or an amendment thereto, is pending, shall not report it to the board, and the board shall not order it submitted to the electors, prior to receipt of said reports, but in the event that all or any of such reports are not received within said time limitations, such committee and board action shall be permissible.‘(g) At least seven days must intervene between the first appearance of a proposed charter amendment before the board as a referral from committee, and any board order of submission to the electorate. Said order, if any, must be made not less than 85 days prior to the election mentioned herein.’ (Emphasis in original.)

ELKINGTON, Associate Justice.

SIMS, Acting P. J., and LAZARUS, J. (Retired Judge of the Superior Court sitting under assignment by the Chairperson of the Judicial Council), concur.