VERNON FIRE FIGHTERS et al., Petitioners and Cross Appellants, v. CITY OF VERNON et al., Respondents and Appellants.
For Opinion on Rehearing, see 165 Cal.Rptr. 908.
The City of Vernon appeals from a judgment granting a peremptory writ of mandate in favor of Vernon Fire Fighters, Local 2312, Affiliate of the International Association of Fire Fighters, and Donald Podlas, a fire captain with the City of Vernon Fire Department. The peremptory writ ordered that the City rescind disciplinary action taken against Podlas and reinstate him to his employment with restoration of all right and benefits, expunging the disciplinary action from his employment record. More broadly, the writ also required that the City set aside and rescind action taken by it on August 9 and 17, 1976,1 at least to the extent that the action prohibits firemen from washing personal automobiles while not on duty. In addition, the City was ordered to reinstate the right of all firemen on 24–hour shifts to wash their private automobiles on City premises during off-duty time. The remainder of the orders issued to the City dealt with requiring the City to engage in collective bargaining in the future regarding similar actions to be taken by the City and a requirement that the City provide various procedural steps prior to any discipline of the members of Local 2312. The City appeals from each of the above provisions; Respondent Union cross-appeals from the trial court's finding that the resolutions passed by the City were not void in their entirety due to alleged violation by the City of the Meyers–Milias–Brown Act, Government Code section 3500, et seq. (hereinafter MMBA).
The instant dispute is centered around the above-quoted resolution adopted by the City Council of the City of Vernon. The genesis of this resolution, which originated as a recommendation by the finance committee of the City Council, was a worker's compensation claim filed by a city employee who had injured himself while washing his car on city premises. Subsequent to its passage, the Union raised objections to the rule, and the City modified the rule in regards to firemen on 24–hour duty so that when such firemen were leaving duty they could rinse the dew that accumulates in the early morning hours off their car windows before driving home.
On February 4, 1977, Podlas violated the rule by washing his car on city property with city equipment. A notice of the violation was sent to Podlas on February 16, 1977, which also advised him of his maximum discipline, demotion, and of his opportunity to appear at a hearing before the disciplinary action would be effective. Such a hearing was held on March 1, 1977. However, neither Podlas nor the Union produced any evidence or called any witnesses. Podlas did not testify. The only response to the charge was a reading of a statement of position of the Union and Podlas by their attorney. Basically, their position was that the City had failed to grant Podlas procedural due process, that the City had violated the requirements of the MMBA and the Employer–Employee Resolution 4027 previously enacted by the City, by failing to “meet and confer” over the rule, and that Captain Podlas' acts did not violate the October 19 modification of the rule against car washing, as he merely “washed his car off with a garden hose about 7:30–8:00 A.M. (after duty hours) and wiped off the water and soap with a rag.” The matter was taken under submission by the Council.
At the March 15, 1977, meeting of the City Council it was decided that Podlas would be suspended for three shifts with no overtime for a six-month period, effective April 1, 1977. Thereafter, on April 12, 1977, a petition for writ of mandate was filed on behalf of the Union and Podlas. The matter was argued before Judge Charles H. Phillips in superior court on May 10.
At the outset, a dispute arose as to whether the petition was properly one under section 1085 or section 1094.5 of the Code of Civil Procedure, the first section being traditional mandamus, the latter being the section covering administrative mandamus. The difference in the two procedures is that a traditional writ of mandate under section 1085 is a method of compelling the performance of a legal, usually ministerial duty, whereas the purpose of an administrative mandamus proceeding under section 1094.5 is to review the final adjudicative action of an administrative body. (California Civil Writs, CEB 1978, § 5.8.) The further distinction between the two procedures is that under section 1094.5, the only evidence allowed to be presented, absent special circumstances not here applicable, is the administrative hearing transcript.2 As stated in California Administrative Mandamus, CEB (1966) section 13.5, page 218, “A peculiarity of administrative mandamus proceedings that many attorneys find difficult to comprehend is that it usually is inappropriate to present witnesses at the trial or to offer other evidence such as affidavits ․ the only item of evidence that is usually received is the administrative record.” In this case, the judge determined, despite the fact that the petition purported to seek a writ of mandamus under section 1085, that the action fell under section 1094.5, but allowed, nonetheless, admission of declarations into evidence that were not part of the administrative hearing record. Appellant City claims that the trial court exceeded the proper scope of review in so doing.
Section 1094.5 reads in pertinent part:
“(a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board or officer may be filed with the petition, may be filed with respondent's points and authorities or may be ordered to be filed by the court. If the expense of preparing all or any part of the record has been borne by the prevailing party, such expense shall be taxable as costs.
“(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.
“(c) Where it claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence; and in all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (Emphasis added.)
Section 1085 reads:
“It may be issued by any court, except a municipal or justice court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.”
Appellant contends that the trial court was correct in arriving at the conclusion that the writ of mandate fell under the provisions of section 1094.5, rather than section 1085 as indicated on the face of the writ, but that the trial judge erred in allowing respondents to enter two declarations by Podlas and two by the president of the Union into evidence. As appellant points out, the findings of fact and conclusions of law written by respondent and adopted almost verbatim by the trial judge contain conclusions that could only be based upon the declarations that were offered into evidence. Therefore, we must first determine whether the proceeding below was one to be held properly under section 1085 or section 1094.5. We address the issue separately as to the Union and Podlas.
I. The Union.
As stated above, section 1085 covers traditional mandamus proceedings. The relief sought by the Union in this case falls within this category, as the Union was not seeking review of the administrative hearing before the City Council per se, but broader relief aimed at the avoidance of the anti-car-washing rule in its entirety. The basis for the request to have the rule set aside was an alleged abuse of discretion on the part of the City in enacting the rule contrary to the provisions of the MMBA. “While mandamus will not lie to control the discretion exercised by a public officer or board ․ it will lie to correct an abuse of discretion by such officer or board.” (Baldwin–Lima–Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 823, 25 Cal.Rptr. 798, 811, quoted in Glendale City Employees' Assn. v. City of Glendale (1975) 15 Cal.3d 328, 344, fn. 24, 124 Cal.Rptr. 513, 540 P.2d 609.) Therefore, the Union properly sought relief by writ of mandate under section 1085.
Although the Union properly proceeded under section 1085 and the trial judge was therefore correct in admitting the declarations into evidence in regard to the relief sought by the Union, the writ was erroneously granted. In order to be entitled to the relief sought, the Union had to have established that the anti-car-washing rule was enacted in violation of the MMBA.
The findings of facts and conclusions of law demonstrate that the trial judge found that the Union had succeeded in this task. We disagree.
The MMBA codifies California's recognition of the right of public employees to collectively bargain with their government employers. Sections 3504.5 and 3505 3 provide that a body such as the City Council herein must give notice to groups such as the Union of the intention to adopt a rule such as the anti-car-washing rule and further, that they must “meet and confer in good faith regarding wages, hours and other terms and conditions of employment.” The Union contends that washing personal automobiles during off-duty time was a “condition of employment” within the meaning of section 3505, and that the City was required by “meet and confer” regarding its passage.
Regarding the requirement in section 3504.5 of notice of the proposed rule, it is clear that minutes of the City Council meeting at which the council voted to adopt the recommendations of the finance committee to restrict the use of city facilities and equipment and to issue an order to that effect were posted in the fire stations. Further, the president of the Union, Michael Farrier, subsequently contacted one of the councilmen and discussed the rule with him. As a result of this discussion, the councilman successfully moved for a modification of the rule before the City Council so that firemen would be allowed to rinse the early morning dew off of their automobiles' windows before driving home. The Assistant Fire Chief had previously addressed both the Fire Commission and the entire City Council on the same subject. The modification was also posted at the fire stations. The notice requirement of section 3504.5 was met.
“It has been established that the city's duty to ‘meet and confer in good faith’ is confined to matters within the ‘scope of representation.’ (International Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 966, 129 Cal.Rptr. 68, 73.) The scope of representation is defined in Government Code section 3504 as ‘all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity by law or executive order.’ ” (Italics in original) (Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 936, 143 Cal.Rptr. 255, 259.) This latter, italicized language was added to the original statute in 1968. As explained by the California Supreme Court, ․ “the Legislature included the limiting language not to restrict bargaining on matters directly affecting employees' legitimate interests in wages, hours and working conditions but rather to forestall any expansion of the language of ‘wages, hours and working conditions' to include more general managerial policy decisions.” (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 616, 116 Cal.Rptr. 507, 512, 526 P.2d 971, 976.)
Following the above reasoning, the court in Berkeley Police Assn. concluded that certain policies enacted by the City of Berke-ley 4 fell “within the exception delineated in section 3504,” and further, that “[t]hese policies clearly constitute management level decisions which are not properly within the scope of union representation and collective bargaining.” (Berkeley Police Assn. v. City of Berkeley, supra, 76 Cal.App.3d at p. 937, 143 Cal.Rptr. at p. 260.) Therefore, the court held that “allegations that the city failed to meet and confer with appellants before instituting Chief Pomeroy's new policies, could not as a matter of law have established a violation of the ‘meet and confer’ provisions of the Meyers–Milias–Brown Act.” (Id.)
Likewise, in San Jose Peace Officer's Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, 144 Cal.Rptr. 638, the court held that a policy adopted by the City of San Jose governing when a police officer may discharge his firearm was not subject to the meet and confer requirement, the policy being “primarily a matter of public safety” and within the city's power to enact and enforce regulations relating to the use of firearms under article XI, section 7 of the California Constitution. The court held further that “[w]hile the policy may impinge on a condition of employment [the safety of the police officer], it impinges only indirectly,” (San Jose Peace Officer's Assn. v. City of San Jose, supra, p. 947, 144 Cal.Rptr. p. 646.)
Finally, in Social Services Union v. Board of Supervisors (1978) 82 Cal.App.3d 498, 506, 147 Cal.Rptr. 126, 130, a change in the parking fees for county employees was held not to be a “meet and confer” item. The court said “Government Code section 3505's requirement that the public agency and union representing its employees meet and confer with respect to ‘wages, hours, and other terms and conditions of employment’ does not extend to items of an insubstantial nature only indirectly affecting the employment relationship.”
Applying the foregoing to the instant case, it is clear that the anti-car-washing rule enacted by the City Council is not a ‘condition of employment’ within the meaning of section 3505, but rather a ‘general managerial policy decision.’ This fact is further strengthened by section 5 of Resolution 4027, “A Resolution Of The City Council Of The City of Vernon, Relating to Employer–Employee Relations In The City of Vernon.” Section 5, titled “City Responsibilities and Rights” states in its introduction, “In order to insure that the City is able to carry out its statutory functions and responsibilities, the City of Vernon has and will retain the exclusive right to manage and direct the performance of City services and the work and force performing such services and therefore the following matters will not be subject to the meet and confer process but shall be within the exclusive discretion of the City.” Subsection P then provides that such discretion shall extend “To establish reasonable work and safety rules and regulations in order to maintain the efficiency and economy desirable in the performance of City services.” This provision is entirely consistent with the limiting language of section 3504 and the explanation of its meaning by the California Supreme Court in Fire Fighters Union v. City of Vallejo. Not only does the rule embody an entirely managerial decision, it is of “an insubstantial nature only indirectly affecting the employment relationship.” (Social Services Union v. Board of Supervisors, supra, p. 506, 147 Cal.Rptr. p. 130.) Therefore, its passage cannot as a matter of law constitute a violation of section 3505 or an abuse of discretion on the part of the City Council. The use of public property for private purpose or benefit certainly has nothing to do with employment. There is a safety factor involved in any employee leaving work from the employer's driveway with dew on his car's windshield from the previous 24 hours of employment. Therefore, the prohibition against washing cars is non-employment oriented while cleaning of windshields is: A prohibition against the latter would violate MMBA but not so the personal benefit prohibition attendant in total car washing. It follows that the part of the judgment that sets aside the rule adopted by the City Council on August 9 and 17, 1976, and reinstates the right of the right of firemen to wash their personal automobiles on City premises and with City facilities must be reversed.
II. Fire Captain Podlas
Having concluded that the anti-car-washing rule is valid, we must now determine whether the trial court properly reviewed the disciplinary action taken against Podlas under that rule. The first question to be answered is whether the petition, as it pertained to the relief sought by Podlas, was one for traditional mandate or administrative mandamus.
Having in mind the differences in the two procedures spelled out above, it is clear that the trial court's review of the disciplinary action taken against Podlas would properly fall under section 1094.5. The requirements in that section are: “․ a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer.” Respondents contend that Podlas was entitled to such a hearing before being disciplined, as the City limited its right to discipline its employees except for “proper cause.” 5 Although it is well established that public employees who serve at the pleasure of the appointing authority may be terminated without cause, notice or hearing (Healdsburg Police Officer's Association v. City of Healdsburg (1976) 57 Cal.App.3d 444, 450, 129 Cal.Rptr. 216), it is equally well settled that a public employee may not be disciplined arbitrarily and without due process of law if the public employer has limited its right to impose discipline except for ‘good cause.’ (Arnett v. Kennedy (1974) 416 U.S. 134, 163, 94 S.Ct. 1633, 40 L.Ed.2d 15; Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215, 124 Cal.Rptr. 14, 28–29, 539 P.2d 774, 788–89.) Therefore, the City was required by law to give Podlas a hearing before taking disciplinary action against him. Further, the procedural safeguards outlined in Skelly—“notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline”—were met. (Skelly v. State Personnel Board, supra.) The letter of February 16, 1977, notified Podlas of the charges against him, the actions upon which such charges were based, and the anticipated disciplinary action proposed. At the hearing of March 1, 1977, he was given an opportunity to respond. Since a hearing was required by law and was in fact held, review thereof by petition for writ of administrative mandamus was necessarily the appropriate procedure. The trial court was in error, therefore, in considering the declarations of Podlas and Farrier in determining if the City had abused its discretion in disciplining Podlas.
In Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44, 112 Cal.Rptr. 805, 520 P.2d 29, the California Supreme Court held that decisions by local agencies, such as the City herein, which affect a fundamental vested right are subject to the independent judgment of the court when it is called upon to determine whether there has been an abuse of discretion under section 1094.5. Our re-view of the trial court's decision, however, is limited to whether it is supported by substantial evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10, 93 Cal.Rptr. 234, 481 P.2d 242; LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432; Pipkin v. Board of Supervisors (1978) 82 Cal.App.3d 652, 663, 147 Cal.Rptr. 502.) Here there is no substantial evidence to support the conclusion that the disciplinary rule was invalid (as discussed above in reference to the Union) nor to support the conclusion that Podlas was not afforded the procedural due process required to be given him at the hearing. Since the declarations of Podlas and Farrier should not have been considered by the trial court in reviewing the disciplinary hearing and its outcome, the trial court was bound only to consider the hearing transcript and exhibits. Based upon this evidence, it is clear that, as to the points raised in the petition, Podlas was properly disciplined for washing his car. No evidence was offered at the hearing to establish that the facts were other than stated in the letter of February 16th advising Podlas of his infraction.
However, our inquiry does not stop here. It is also clear from the administrative hearing transcript that the order which was to be issued pursuant to the motions that were passed by the City Council on August 9 and 17, 1976, contained language as to the proper implementation of the rule—a procedure that was not followed by the body responsible both for the promulgation and implementation of that rule. The order was introduced into the record as Exhibit B and read by the City Attorney. It stated that:
“(1) No City employee shall use any facility for his or her personal benefit including the washing of an automobile, boat, trailer, camper or other such personal equipment.
“(2) No City equipment shall be used by an employee for his or her personal benefit.
“The foregoing rules apply to both the using of City facilities or the using of City equipment as outlined above when said employee is working on City time or at any time said employee is present on City facilities for work or other purposes.
“Any violation of this order may result in a disciplinary proceeding. An employee will be warned prior to the taking of such action which may result in a reprimand, suspension, or (in an aggravated case) discharged from the employment of the City of Vernon.” (Emphasis added.)
This court recently had occasion to say in a similar context that, “A school board must adhere to its own rules and method of procedures. Frates v. Burnett, supra (1970) 9 Cal.App.3d 63, 71, 87 Cal.Rptr. 731; Hamilton v. Stockton Unified School District, supra (1966) 245 Cal.App.2d 944, 950, 54 Cal.Rptr. 463.” (Goddard v. South Bay Union High School Dist. (1978) 79 Cal.App.3d 98, 110–111, fn. 9, 144 Cal.Rptr. 701, 709.) Such a requirement would apply with equal force to a City Council when it is disciplining city employees. As the California Supreme Court said in Frates v. Burnett, supra, “Failure to comply with civil service procedures will result in an invalid discharge. (Baumgardner v. City of Hawthorne (1951) 104 Cal.App.2d 512, 517, 231 P.2d 864.)” Here the City Council set forth a procedure by which employees were to be disciplined for violation of a particular rule. Despite the fact that the order as introduced at the administrative hearing was not posted prior to Podlas' violation of the rule, it is abhorrent for an administrative body, serving not only as promulgator of a rule, but also a prosecutor and judge of those alleged to be in violation thereof, to set out a procedure to be followed and then, the first time a violator is brought forth, to entirely ignore its own procedure. Therefore, because the City Council failed to adhere to its own procedure by not first issuing a warning to Podlas, the discipline imposed is void.6
To recapitulate our holding: the anti-car-washing rule enacted by the City of Vernon is valid in its entirety, not being within the “scope of representation” of the Union, and, therefore, not subject to the “meet and confer” requirement of the MMBA; the discipline of Fire Captain Podlas is a void action, as being imposed in contravention of the City's own procedures for imposing discipline for violation of the rule.
The judgment granting the peremptory writ of mandate is reversed, except insofar as it orders the City to rescind the disciplinary action taken against Podlas and to reinstate him to his employment with restoration of all rights and benefits, to that extent it is affirmed. Further, rather than expunge the disciplinary action from his employment record as ordered by the trial court, the City should note that Podlas committed the acts contained in the letter of February 16, 1977, and that he was duly warned that such acts constituted a violation of an order of the City Council. In all other respects, the judgment is reversed.
This record—hundreds of pages long—is the result of a possibly unauthorized car wash by a fire captain of the City of Vernon on February 4, 1977. It illustrates much of what is wrong with our system of administrating justice.
Very briefly: as far as Captain Podlas is concerned, the discipline must be set aside for the reasons set forth on page 486 of the majority opinion—the order which he is supposed to have violated was stipulated never to have been posted or seen. That disposes of the writ of administrative mandamus.
As far as the Union's attempt to set aside the anti-car wash rule is concerned, I do believe that it relates to a condition of employment subject to the “meet and confer” provisions. (Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 63, 151 Cal.Rptr. 547, 588 P.2d 249.)
With respect to the Union's cross-appeal, I believe it has no merit. The trial court decided what it had to decide and no more.
To summarize: I concur in the judgment ordering the city to rescind the disciplinary action against Podlas. I dissent from the denial of a writ of mandate to the Union. I agree with the trial court on the Union's cross-appeal.
1. On August 9, 1976, the City Council met and passed a motion which required that “the Finance Committee make the following recommendations to the City Council: (1) That there be an order issued prohibiting any City employee from using City facilities to wash his or her personal automobile, boat, trailer, camper or other personal equipment, and if the order is violated, that the employee be subject to disciplinary action; and (2) That an order be issued prohibiting any City employee from using any tools, equipment and/or City facilities for his or her personal benefit, and if the order is violated, that the employee be subject to disciplinary action.” At the August 17th meeting, the City Council received such a recommendation from the Finance Committee and passed a motion approving the recommendation.
2. The exceptions to this rule are: (1) evidence that, in the exercise of reasonable diligence could not have been presented at the administrative hearing; (2) evidence improperly excluded at the administrative hearing. (Code of Civ.Proc., § 1094.5(e).)
3. Section 3504.5 reads in pertinent part:“Except in cases of emergency as provided in this section, the governing body of a public agency, and boards and commissions designated by law or by such governing body, shall give reasonable written notice to each recognized employee organization affected of any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body or such boards or commissions and shall give such recognized employee organization the opportunity to meet with the governing body or such boards and commissions.” Section 3505 reads in pertinent part:“The governing body of a public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body, shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations, as defined in subdivision (b) of Section 3501․”
4. The policies in dispute were that of (1) allowing a member of the citizens' police review commission to sit in on police department board of review hearings on citizen complaints against police officers and (2) sending a representative of the police department to citizens' commission trial board meetings to answer questions of commission members concerning the department's position on individual complaints. (Berkeley Police Assn. v. City of Berkeley, supra, p. 937, 143 Cal.Rptr. 255.) This procedure was developed by the Chief of Police to compliment the citizens' police review commission which had been established by initiative ordinance. (Id., pp. 934, 935, 143 Cal.Rptr. 255.)
5. This requirement is contained in Resolution 4027, the City Council resolution previously mentioned regarding employer-employee relations. Section 5, subsection H, declares that it “shall be within the exclusive discretion of the City: H. To discharge, suspend, or otherwise discipline employees for proper cause.”
6. Because of our holding in regard to the invalidity of the discipline of Podlas, we need not address fully the contention of respondents that Podlas was in compliance with the rule as modified in October. Suffice it to say that the characterization by respondents of that modification as reinstating car washing privileges for 24–hour duty firemen during their off-duty hours is tenuous. If such a construction were to be placed on the modification, it would entirely negate the anti-car-washing rule. This is not a reasonable interpretation of the intent of the City Council in permitting 24–hour duty firemen to rinse the early morning dew off their car windows before departing for home. The modification was contained in a memo from the Fire Chief, which read: “At the Vernon City Council meeting this date, Councilman Kaiser asked the Council (present were Mayor Malberg, Councilman Ybarra and Councilman Gonzales) if Firemen could be permitted to wash off their cars with a garden hose because of the heavy dew on the windows in the morning. The Councilagreed to his suggestion. ¶ Cars may be washed off with a garden hose in the early A.M. only and upon departure from duty. Please adhere to this suggestion.” Although somewhat ambiguous, the first paragraph clearly sets the tone for the entire memo and restricts its scope to the removal of dew from the windows of the cars.