LONG BEACH POLICE OFFICERS ASSOCIATION v. CITY OF LONG BEACH

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Court of Appeal, Second District, Division 4, California.

The LONG BEACH POLICE OFFICERS ASSOCIATION and Russell Peterson, Petitioners and Appellants, v. CITY OF LONG BEACH and Charles B. Ussery, Chief of Police, Respondents.

B024791.

Decided: July 08, 1987

Hannon, Park & Lennon and Michael Hannon, Los Angeles, for petitioners and appellants. John R. Calhoun, City Atty., and Bradford L. Andrews, Deputy City Atty., for respondents.

This is an appeal from an order and Statement of Decision denying petitioners and appellants' petition for writ of mandate.

Petitioners are Russell Peterson, and the Long Beach Police Officers Association.

Petitioner Peterson had been granted a permit to engage in outside employment (serving civil process for Memorial Hospital) by his local agency employer, the Long Beach Police Department.   Deputy Chief W.F. Stovall, acting as designee for the Chief of Police, revoked Officer Peterson's outside collateral employment permit on the grounds that service of civil process, within the Long Beach City limits, was incompatible with and in conflict with the officer's duties as a Long Beach Police Officer.

Petitioner filed a grievance which was rejected at each step of the grievance process.

I

On writ of mandate (Code of Civ.Proc., § 1094.5) petitioners contended that Government Code section 1126 grants to cities the power to limit their employees' right to engage in legitimate off-duty employment, but that that power is confined to a narrowly defined list of situations spelled out in Government Code section 1126, and that the case at bar is not within that list of situations.   Petitioners also argue that the right to engage in employment is constitutionally protected, and therefore it may only be limited in a “most narrow, necessary, and clearly defined fashion.”

The court found that section 1126 was not intended to limit charter cities from imposing additional and different limitations on off-duty employment and to the extent that it does limit the cities' power to make additional limitations, section 1126 is in conflict with article XI, section 5 of the California Constitution, and the home rule provision of the California Constitution (article XI, § 5) prevails.

II

 Petitioners first argue that the court below erred in finding that the Long Beach Police Officers Association (petitioners' union) lacked standing to sue, and that the association did not state a cause of action.   Petitioners allege that the union has standing to sue and the union has stated a cause of action, because it has alleged that the association had a beneficial interest in representing its members and a duty to represent its members (Gov.Code, §§ 3503, 3504) in all matters relating to employment conditions and employer-employee relations.   That issue has been settled favorably to petitioners in Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 109 Cal.Rptr. 724 (hrng. den. 10/31/73.)

III

The next issue before us is whether the court erred in finding that Government Code section 1126 does not limit charter cities from imposing additional and different regulations concerning outside collateral employment.

Section 1126 reads in its entirety as follows:

“(a) Except as provided in Section 1128, a local agency officer or employee shall not engage in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties as a local agency officer or employee or with the duties, functions, or responsibilities of his or her appointing power or the agency by which he or she is employed.   Such officer or employee shall not perform any work, service, or counsel for compensation outside of his or her local agency employment where any part of his or her efforts will be subject to approval by any other officer, employee, board, or commission of his or her employing body, unless otherwise approved in the manner prescribed by subdivision (b).

“(b) Each appointing power may determine, subject to approval of the local agency, and consistent with the provisions of Section 1128 where applicable, those outside activities which, for employees under its jurisdiction, are inconsistent with, incompatible to, or in conflict with their duties as local agency officers or employees.   An employee's outside employment, activity, or enterprise may be prohibited if it:  (1) involves the use for private gain or advantage of his or her local agency time, facilities, equipment and supplies;  or the badge, uniform, prestige, or influence of his or her local agency office or employment or, (2) involves receipt or acceptance by the officer or employee of any money or other consideration from anyone other than his or her local agency for the performance of an act which the officer or employee, if not performing such act, would be required or expected to render in the regular course or hours of his or her local agency employment or as a part of his or her duties as a local agency officer or employee or, (3) involves the performance of an act in other than his or her capacity as a local agency officer or employee which act may later be subject directly or indirectly to the control, inspection, review, audit, or enforcement of any other officer or employee or the agency by which he or she is employed, or (4) involves such time demands as would render performance of his or her duties as a local agency officer or employee less efficient.

“The local agency may adopt rules governing the application of this section.   Such rules shall include provision for notice to employees of the determination of prohibited activities, of disciplinary action to be taken against employees for engaging in prohibited activities, and for appeal by employees from which a determination and from its application to an employee.”

 In analyzing Government Code section 1126, in order to determine whether it limits cities from imposing different or additional regulations, we shall apply the rules of statutory construction.   It has been held that courts are bound to give effect to statutes according to the usual ordinary import of the language employed in framing them.  (Rich v. State Bd. of Optometry (1965) 235 Cal.App.2d 591, 604, 45 Cal.Rptr. 512.)   Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of the Legislature.  (Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764, 150 Cal.Rptr. 785, 587 P.2d 227.)   If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.  (Rich v. State Bd. of Optometry, supra, 235 Cal.App.2d at 604, 45 Cal.Rptr. 512.)

 Therefore, we shall first examine the language of section 1126 and attempt to give effect to the ordinary import of those words.   Examining the first sentence of section 1126(b), supra, it would appear that the appointing power may determine what is or is not conflicting employment, and the appointing power, subject to the approval of the local agency, appears to have very broad power to decide which kinds of employment are considered to be incompatible with public employment.   However, the remainder of section 1126(b) lists in items one through four the four types of activities that may be prohibited.   Since the ordinary meaning of the words in items one through four would lead us to believe that there are four situations in which the appointing authority, may, if it chooses, limit outside employment, it follows that the appointing authority may not limit outside employment in additional or in different circumstances.   Affirmative words may, and often do, imply a negative, and affirmative enactment of a new rule implies a negative of whatever is not included or is different.  (Martello v. Superior Court (1927) 202 Cal. 400, 261 P. 476.)   In the instant case, the affirmative listing of four situations in which after hours employment may be prohibited, implies that additional or different situations are not to be included.

Secondly, section 1127 1 of the Government Code makes clear the Legislature's intent was not to prevent public employees from seeking private employment in certain cases, provided employees have the approval of the agency supervisor and are certified qualified by the appropriate agency.   This section (1127) would appear to be an expression of the Legislature's purpose to limit the kinds and number of situations in which approving authorities may prohibit public employees from engaging in outside employment.   When we examine section 1126 in context with section 1127, it is our view that the purpose of the Legislature was to list four situations, and no more than four, in which public employees may not seek private employment, if the employing 2 agency chooses to prohibit the private employment in those areas.

Petitioners rely on the Legislative Counsel's Digest of Senate Bill 220 to support their argument that the list of four activities sets the outer parameter of those situations where outside employment may be prohibited.

The digest states:

“Prohibits incompatible employment for compensation by officers and employees of local agencies and prohibits work, service or counsel for compensation outside of local agency employment where it will be subject to approval by any other officer, employee, board, or commission of the employing body unless otherwise approved as specified.   Authorizes local agencies to determine outside activities of officers and employees that are incompatible to their duties as officers and employees and provides that local agency shall adopt rules governing application of the provision.   Specifies prohibited activities.”

Petitioners argue that, since the prohibited activities are “specified,” no other can be included, and we think that is one reasonable inference that may be drawn from that language.

Respondents argue that the above citation is misleading, because it fails to cite subsequent revisions.   Respondents argue that the Legislative Counsel Digest changed wording from “specifies prohibited activities” to “specifies activities which may be prohibited.”   This language upon which respondents rely merely means that the agency does not have to prohibit private employment even if it falls within the four listed situations.   It means that the agency may prohibit private employment in those four situations, but only if it chooses to do so.   Therefore, the language on which respondents rely does not support respondents' theory that the local body may expand upon the list of situations in which private employment may be prohibited.   On the contrary, that language suggests that the local body does not have to prohibit outside employment in situations where it has the power to do so, if it chooses to permit such employment.

Respondents also rely on Senate Local Government Staff Analysis of Senate Bill 220.   That analysis suggests that the proposed legislation would:  “Provide that the employing agency may determine those activities which are inconsistent or incompatible and shall set forth rules governing the application of this section, including notice to employees and disciplinary action.   Set forth characteristics of outside employment (e.g., use of agency equipment, receipt of money for official acts, review of work by employing agency, extensive demands on time, causing inefficiency), which shall be prohibited.”   This staff analysis does not assist respondents in their contention that the list of four may be expanded by the local governing body.   On the contrary, the analysts state the law will set forth the “characteristics of outside employments” which “shall be prohibited,” which supports petitioners' argument that other employment with different or additional characteristics may not be prohibited.

 Applying the rules of statutory construction, and examining the legislative history, we find that Government Code section 1126 limits the number and kinds of situations in which an appointing power or agency may prohibit an employee from seeking outside employment, and the court erred in its view that section 1126 does not limit the cities' power to impose added restrictions.

IV

Since section 1126 was intended to limit charter cities from imposing additional and different limitations on public employees seeking off-duty private employment, we must determine whether section 1126 is in conflict with article XI, section 5 of the California Constitution, and, if so, whether section 1126 is invalid.3

The California Constitution provides:  “City charters adopted pursuant to this Constitution ․, and with respect to municipal affairs shall supersede all laws inconsistent therewith.”  (Cal. Const., art. XI, sec. 5, subd. (a).)  The constitution also provides in subdivision (b) of article XI, section 5:  “It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for:  (1) the constitution, regulation, and government of the city police force;  ․”

Clearly, under the California Constitution, cities may regulate the police force, and in the case at bench, the City of Long Beach has enacted rules regulating its police.   Furthermore, respondents have enacted rules and regulations specifically dealing with restricting outside collateral employment of its employees.  (See Article 6, section 6.01 Long Beach Personnel Ordinance sections 3/1123112, 3/11201311201, 3/2103210.07 Long Beach Police Manual, C.T. pp. 12–14, 30 respectively.)

Therefore, since rules within the City of Long Beach's Personnel Ordinance expand beyond those four situations permitting prohibitions on outside employment in section 1126, the issue is whether section 1126 falls as in conflict with article XI, section 5.

In Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 291, 32 Cal.Rptr. 830, 384 P.2d 158, the Supreme Court said that if general laws of the state deal with matters which are solely of municipal concern, then under the California Constitution, the city charter, ordinances and regulations are paramount.   However, the Professional Fire Fighters case rejected the notion that any intrusion upon matters connected with public employment necessarily is an intrusion on municipal affairs, and held that a general law seeking to accomplish as its objective that which is a matter of statewide concern, may prevail over conflicting local regulations, even if a general law impinges to a limited extent on some phase of local control.   (60 Cal.2d at 292, 295, 32 Cal.Rptr. 830, 384 P.2d 158.)

 It has also been said that local legislation of the charter city prevails over general law only when the subject matter is “exclusively” or “solely” or “strictly” a matter of municipal concern.  (Dissent in Weekes v. City of Oakland (1978) 21 Cal.3d 386, 442, 146 Cal.Rptr. 558, 579 P.2d 449.)   What is strictly a matter of municipal concern is for the courts to determine, and the fact that the Legislature has chosen to deal with the problem on a statewide basis is not determinative of whether the statute relates to a matter of statewide concern.  (Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 152 Cal.Rptr. 903, 591 P.2d 1.)

Thus, the question before us then is whether or not limiting outside employment of the city police is a matter of statewide concern or strictly a matter of municipal concern.

In Professional Fire Fighters, supra, the Supreme Court held that state statutes which gave firemen a right to join a labor union were applicable to charter cities where the total effect of the legislation was not to deprive local government of the right to manage the fire department, but to create uniform fair labor practices throughout the state.  (60 Cal.2d at 294, 295, 32 Cal.Rptr. 830, 384 P.2d 158.)

Similarly, in Baggett v. Gates (1982) 32 Cal.3d 128, 139, 185 Cal.Rptr. 232, 649 P.2d 874, the Supreme Court held that general laws of a state seeking to assure fair labor practices may be applied to the police departments, even if they impinge on local control to a limited extent, because the maintenance of stable relations between police officers and their employer are a matter of statewide concern.   The court in Baggett said labor unrest and strikes produce consequences which extend beyond local borders, and a breakdown in labor relations would threaten the safety and welfare, not only of residents, but of nonresidents who visit the city or own property or businesses in the city.4

 In the case at bench, the right of public employees to work in private business, as well as the situations in which such employees ought not to work in private businesses, are a matter of statewide concern.   Just as in the Baggett case where the court noted that nonresidents visited the city, in the case at bench many nonresidents visit the City of Long Beach or have businesses or property within the City of Long Beach.   Therefore, it is a matter of concern to those nonresidents whether or not public employees in the city are working after hours in private businesses, under circumstances not considered appropriate by the Legislature.   By enacting Government Code section 1126, the Legislature secured basic employment rights for public employees, but it also secured certain basic protection for nonresident citizens who may have businesses or property within a city or who visit a city.   These basic protections for both public employees, and for nonresident citizens, are clearly a matter of statewide concern, since resident and nonresident visitors alike frequently rely on the services of city public employees.   Clearly, limiting off-duty work by city police is a matter of statewide concern since off-duty work can affect the general public's safety, and not merely local public safety;  therefore, section 1126 prevails even if it impinges to a limited extent on local control.5

Reversed and remanded with directions to the trial court to grant the writ of mandate.   Under rule 26(a) of the California Rules of Court, respondents are to bear costs.

FOOTNOTES

FN1. Section 1127 reads:  “It is not the intent of this article to prevent the employment by private business of a public employee, such as a peace officer, fireman, forestry service employee, among other public employees, who is off duty to do work related to and compatible with his regular employment, or past employment, provided the person or persons to be employed has the approval of their agency supervisor and are certified as qualified by the appropriate agency.”.  FN1. Section 1127 reads:  “It is not the intent of this article to prevent the employment by private business of a public employee, such as a peace officer, fireman, forestry service employee, among other public employees, who is off duty to do work related to and compatible with his regular employment, or past employment, provided the person or persons to be employed has the approval of their agency supervisor and are certified as qualified by the appropriate agency.”

2.   Further, if the appointing authority does not choose to prohibit employment in any of the four areas, and if a public employee seeks to work in that field, they may do so providing they have their supervisor's approval and are certified.   Thus, section 1127 appears to mean that a supervisor, as well as an appointing agency, may deny employment, but read with section 1126, the denial must occur only in the four listed situations.

3.   The court below found that if Government Code section 1126 does limit a charter city from regulating outside collateral employment of its employees, section 1126 would be invalid as conflicting with article XI, section 5 of the California Constitution.

4.   In Baggett, the Bill of Rights act was found not to interfere with setting police officers' compensation.  (32 Cal.3d at p. 137, 185 Cal.Rptr. 232, 649 P.2d 874, but see footnote 12.)

5.   Respondents did not allege that the business of serving civil process falls within one of the four kinds of activities which may be prohibited by section 1126.

KINGSLEY, Acting Presiding Justice.

McCLOSKY and COLE *, JJ., concur.