PEOPLE SEAL BEACH POLICE OFFICERS ASSOCIATION v. CITY OF SEAL BEACH

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Court of Appeal, Fourth District, Division 3, California.

PEOPLE of the State of California ex rel. SEAL BEACH POLICE OFFICERS ASSOCIATION, Plaintiffs and Appellants, v. CITY OF SEAL BEACH, etc., et al., Defendants and Respondents.

Civ. 30316.

Decided: September 13, 1983

George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen., and Henry G. Ullerich, Deputy Atty. Gen., and Silver & Kreisler by George W. Shaeffer, Jr., Los Angeles, for plaintiffs and appellants. Richards, Watson, Dreyfuss & Gershon by Mitchell E. Abbott, Los Angeles, for defendants and respondents.

OPINION

FACTS

In this case the Seal Beach Police Officers Association (Police) seeks to invalidate three city charter amendments adopted by the voters in 1977.   These amendments, proposed by the Seal Beach City Council (City) under article XI, section 3 of the California Constitution, require the immediate firing of any city employee participating in a strike.  (Seal Beach Municipal Charter, § 912.1).   The amendments also modify existing employee disciplinary procedures.  (Id., §§ 912, 913.)

The complaint, brought in the name of the People of the State of California, on the relation of the Police, sought a writ of quo warranto declaring the charter amendments invalid for failure to comply with the Meyers-Milias-Brown Act (MMBA).  (Gov.Code, §§ 3500, et seq.)   The City's general demurrer was sustained and the police declined to amend their complaint.   The police then consented to entry of a judgment of dismissal.

DISCUSSION

 The issue presented is whether the Seal Beach City Council must comply with the MMBA before proposing charter amendments affecting police employment.1  The Police contend the City Council is required by the MMBA to “meet and confer” before proposing any amendment concerning the terms and conditions of employment.   The City Council argues its power is absolute and unaffected by the MMBA when it regulates by charter amendment as opposed to rules, regulations or negotiated contracts.   We agree with the Police and hold the City Council must meet and confer before proposing charter amendments which affect employment.

I

Section 3505 of the MMBA requires governing bodies to “meet and confer [with employee representatives] in good faith regarding wages, hours, and other terms and conditions of employment” and to “consider fully” presentations made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action.   Section 3505.1 provides if the representatives successfully reach an agreement they shall jointly prepare a nonbinding memorandum of understanding.

The meet and confer requirement means “a public agency ․ and representatives of recognized employee organizations, ․ have the mutual obligation personally to meet and confer promptly upon request by either party and continue for a reasonable period of time in order to exchange freely information, opinions, and proposals, and to endeavor to reach agreement on matters within the scope of representation ․”  (Gov.Code, § 3505).   Though the process is not binding, it requires the parties seriously “attempt to resolve differences and reach a common ground.”  (Placentia Fire Fighters Local 2147 v. City of Placentia (1976) 57 Cal.App.3d 9, 25, 129 Cal.Rptr. 126.)

II

According to its preamble the MMBA has two purposes:  (1) to promote full communication between public employers and employees;  and (2) to improve personnel management and employer-employee relations within the various public agencies.   Those purposes are achieved by establishing methods for resolving disputes concerning matters within the scope of representation.  Government Code section 3504 defines the scope of representation to include:  “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 provided by law or executive order.”  (Emphasis added.)   Seal Beach asserts the underlined qualifying language exempts it from the meet and confer requirement.

The qualifying language was adopted as part of the 1968 amendments as a protection against the expanded concept of bargaining which those amendments embraced.  (See Grodin, Public Employee Bargaining in California:  The Meyers-Milias-Brown Act in the Courts (1972) 23 Hastings L.J. 719, 750, fn. 145.)   The language was discussed in Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 615–16, 116 Cal.Rptr. 507, 526 P.2d 971, where the Supreme Court concluded it merely indicates the Legislature's intent to forestall expansion of the phrase “wages, hours and other terms and conditions of employment” to include more general managerial policy decisions.  (Accord, Huntington Beach Police Officers Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 503, 129 Cal.Rptr. 893.)

The City relies upon San Francisco Fire Fighters v. Board of Supervisors (1979) 96 Cal.App.3d 538, 158 Cal.Rptr. 145, in arguing the language provides an express exemption.  San Francisco Fire Fighters concluded since proposal of charter amendments is an activity authorized by the highest law of this state (Const., art. XI, § 3), the procedure is an “activity provided by law” which is expressly exempt under section 3504.  (Id., at p. 545, 158 Cal.Rptr. 145.)   But all employment proposals whether by rule, regulation, negotiated contract or charter amendment are “activit[ies] provided by law.”   Taken to its logical extreme, this argument would lead to the conclusion that all employment proposals are exempt under the qualifying language of section 3504.   This result is obviously untenable.

We adopt the view expressed by the Supreme Court in Fire Fighters Union that the qualifying language of section 3504 merely limits the scope of the phrase “wages, hours and other terms and conditions of employment” to exclude general managerial policy decisions.   A broader reading would allow the City to undercut the minimum rights the MMBA guarantees.  (See Grodin, supra, 23 Hastings L.J. at p. 724.)

Furthermore, though the City argues to the contrary, we believe it is not only reasonable but likely the Legislature intended the meet and confer requirement to apply to council proposed amendments but not initiatives.   The Legislature expressly stated the MMBA is intended to improve employer-employee relations.   This has nothing to do with initiatives proposed by the electorate.   The cases cited by the City concerning initiatives do not apply.  “Procedural requirements which govern council action ․ generally do not apply to initiatives․”  [Emphasis in original.]  (Associated Home Builders v. City of Livermore (1976) 18 Cal.3d 582, 594, 135 Cal.Rptr. 41, 557 P.2d 473.)   We conclude the City is required to meet and confer with the police before proposing charter amendments which affect matters within the scope of representation.

III

 Seal Beach argues the meet and confer requirement irreconcilably conflicts with the charter amendment provisions contained in article XI, section 3 of the California Constitution.2  They rely on the San Francisco Fire Fighters holding that section three gives cities the unabridged right to propose charter amendments.   We believe the meet and confer requirement can coexist with the constitutional right to propose charter amendments.  (See, Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 65–66, 151 Cal.Rptr. 547, 588 P.2d 249.) 3  The City's right to propose charter amendments is not jeopardized by first having to participate in bargaining sessions with union and management representatives.   There is no inherent conflict between the City's obligation to meet and confer prior to making a proposal and the City's right to make that proposal.

The observations in San Francisco Fire Fighters as to what will occur should the MMBA apply to proposed amendments appear to be exaggerated.   Litigation may ensue if the City refuses to meet and confer at all.   However, in the more typical case, negotiations will result in an agreement or an impasse.   In the event of an impasse the City has the unilateral right to propose the charter amendment.  (See, Placentia Fire Fighters Local 2147, supra, 57 Cal.App.3d at p. 21, 129 Cal.Rptr. 126.)   Therefore, we hold the meet and confer requirement does not conflict with the City's constitutional right to propose charter amendments.

Because we hold the meet and confer requirement and the City's right to propose charter amendments do not conflict, we need not decide whether the Legislature could require a chartered city to comply with an MMBA provision which conflicts with local control under article XI.   We note however Bagget v. Gates (1982) 32 Cal.3d 128, 139, 185 Cal.Rptr. 232, 649 P.2d 874, expressly holds general laws seeking to accomplish an objective of statewide concern may prevail over local control to a limited extent.  (Citing, Professional Fire Fighters v. City of Los Angeles (1963) 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 158;  accord, Huntington Beach Police Officers Association v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 500–502, 129 Cal.Rptr. 893;  see also, Los Angeles County Civil Service Comm., supra, 23 Cal.3d at 65–66, fn. 12, 151 Cal.Rptr. 547, 588 P.2d 249.)  “And it can hardly be disputed that the maintenance of stable employment relations between police officers and their employers is a matter of statewide concern.”   (Bagget, supra, 32 Cal.3d at 139–140, 185 Cal.Rptr. 232, 649 P.2d 874.)

IV

The MMBA's stated purpose to guarantee full communication between public employers and employees can hardly be met if the City is not required to address employee concerns directly.   To carve out an exemption when the City chooses to proceed by charter amendment places an unjustifiable restraint on public employees' right to be heard.  “The right of employees to representation has little meaning if an employer may circumvent the process through a fait accompli.”  (Grodin, supra, at p. 754.)   On the other hand, guaranteeing public employees an opportunity to have their views seriously considered serves the employees' interests without destroying the City's right to propose charter amendments.

 Finally, we are satisfied plaintiffs' action meets the requirements of section 1021.5 of the Code of Civil Procedure.  (Bagget v. Gates, supra, 32 Cal.3d at p. 143, 185 Cal.Rptr. 232, 649 P.2d 874.)   Therefore, plaintiffs are entitled to recover their attorney fees.

 The judgment is reversed.4  The trial court is directed to enter an order overruling the demurrer and to award an appropriate amount for attorney fees.

FOOTNOTES

1.   The Police do not call upon the court to consider whether public employees have a right to strike.   Therefore we express no opinion on this issue.   However, we do note contrary to the City's assertion, it is not “well settled” that public employees have no right to strike.  (See, International Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 193 Cal.Rptr. 518, 666 P.2d 960.)

2.   Sec. 3(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.(d) If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.  (Added June 2, 1970.   Amended Nov. 5, 1974.)

3.   San Francisco Fire Fighters was retransferred to the court of appeal by the California Supreme Court for reconsideration in light of Los Angeles County Civil Service.

4.   The City's contention the Police cannot appeal from a dismissal which they consented to is simply without merit.  (Code Civ.Proc., § 581(3);  Patricia J. v. Rio Linda Union School Dist. (1976) 61 Cal.App.3d 278, 282, 132 Cal.Rptr. 211.)

WALLIN, Associate Justice.

TROTTER, P.J., and SONENSHINE, J., concur.