CITY OF FRESNO v. FRESNO FIREFIGHTERS LOCAL 753 (1994)

OPINION

Fresno Firefighters Local 753 and Fresno Police Officers' Association (the unions) appeal from the judgment entered for City of Fresno (City) on City's complaint for declaratory relief.   The trial court held the “finality” or “zipper” clauses in two Memoranda of Understanding (MOUs) between the parties violated City's right under the California Constitution to propose charter amendments.   Because they were unconstitutional, the zipper clauses did not preclude City from submitting to the electorate a proposal to repeal Fresno Charter section 809 (section 809).

Our opinion does not address the validity of the subsequent repeal by the voters of charter section 809.   We are not called upon here to address whether the voters could properly set aside that section.   Rather, our opinion focuses on a specific pre-election ruling by the trial court regarding the constitutionality of the zipper clauses.

The novel issue presented by this case is whether a charter city may contractually agree, under a labor agreement negotiated between the city and its labor unions pursuant to the Meyers–Milias–Brown Act (MMBA),¹ to refrain, for the duration of the agreement, from exercising its right to propose charter amendments to the voters, a right normally reserved to the city by the California Constitution.   We conclude such agreements are constitutional and the trial court erred in concluding to the contrary.   However, we find the trial court correctly found City failed to establish all the facts necessary to justify a judgment in its favor.   Therefore, because the trial court granted summary judgment based on its conclusion such agreements were unconstitutional, the order appealed from is reversed.

Background

Since the mid–1950s, section 809 has prescribed an eight-city formula under which the city council is required to set the salaries for police officers and firefighters based upon the average salaries paid to their counterparts in eight designated cities in California.²  The formula has been incorporated into the MOUs entered into between City and the unions pursuant to the MMBA.

The MOUs contain provisions referred to by the parties as “zipper” clauses which provide:

“During the life of this [MOU], shall either party desire to modify its terms or to meet and confer as to matters within the scope of representation not addressed in the [MOU], such party shall request in writing to meet and confer․  During the life of this Memorandum, either party may refuse such request without explanation if the item is directly related to or is an item directly considered herein, or if the item was included in a written proposal of either party during the meet and confer process which led to this agreement, and no unilateral action may be taken thereon after such refusal.”

In 1988, the Fresno City Council moved to place on the ballot amendments to section 809 which would have repealed the eight-city formula.   The unions sought a writ of mandate and preliminary injunction directing City to honor the terms of the MOUs by not taking the unilateral action of placing a measure to modify section 809 on the ballot.   In an oral ruling from the bench, the Fresno County Superior Court denied the motion for preliminary injunction, holding that City's action did not violate the intent of the MOUs.   After a lengthy and expensive election campaign, the voters rejected the proposed repeal, but a number of influential entities remained opposed to the eight-city formula.

Facts

In 1990, City and the unions entered into new MOUs for July 1, 1989, through June 30, 1992 (firefighters), and July 1, 1990, through June 30, 1993 (police officers).   According to the unions, during the negotiations, Douglas Furman, City's Labor Relations Manager, stated the city council did not intend to propose a repeal of section 809 during the term of the MOUs because the council did not want to repeat the divisive election fight of 1988.   However, the unions were concerned that a citizens' group might attempt to put the repeal on the ballot.   As a result, the 1990 MOUs contained language providing for an alternative salary setting method “[i]n the event Fresno Charter Section 809 is eliminated by a vote of the electorate․”

In February 1992, the city council directed Michael Bierman, City's Chief Administrative Officer, to meet and confer with the unions on a possible repeal, amendment or modification of section 809 so the issue could be submitted to the voters at the November 1992 general election.   Bierman wrote the unions requesting they meet and confer on alternatives to section 809.   The unions agreed to the request.

The parties met during April 1992 to discuss ground rules but could not agree on an impasse procedure.   City contended it retained the right to take unilateral action, including placing the repeal or modification of section 809 on the ballot, in the event the parties were unable to reach an agreement.   The unions countered the zipper clauses precluded such unilateral action during their terms.   While they were willing to waive their right under the zipper clause not to meet and confer on section 809, they were unwilling to waive their right to prevent City from taking unilateral action if the talks proved unproductive.

Procedural History

In May 1992, City abandoned attempts to negotiate and filed a complaint seeking (1) an injunction directing the firefighters and police officers to meet and confer in good faith, and (2) a declaration that nothing in the existing MOUs precluded it from proposing and having the electorate approve an amendment, modification or repeal of section 809 subject only to City's obligation to provide the unions the opportunity to meet and confer.   Concurrently, City sought a preliminary injunction directing the unions to meet and confer in good faith with City regarding an amendment or modification of section 809.   The unions opposed the motion for preliminary injunction on a number of grounds.   In August 1992, the trial court (Judge Keyes) denied the motion for preliminary injunction, concluding the zipper clauses unambiguously precluded City from proposing or passing a resolution regarding section 809.

City then sought summary judgment/adjudication of its second cause of action for declaratory relief.   City argued that nothing in the existing MOUs precluded it from taking action to amend, modify or repeal section 809;  alternatively, if the zipper clauses prevented City from so acting, they were unconstitutional and void.   The unions filed a cross motion for judgment on the pleadings.   They contended City failed to exhaust its administrative remedies and the zipper clauses unambiguously prevented City from proposing charter amendments to the voters on issues addressed in the MOUs.

After a hearing, the court (Judge Kane) denied the unions' motion for judgment on the pleadings and granted City's motion for summary adjudication.   In granting the motion, the court stated triable issues of fact existed as to the meaning of the zipper clauses.   But, if the unions prevailed on their interpretation that the zipper clauses precluded City from proposing a charter amendment, such an interpretation would be unconstitutional.

“The MOUs, as interpreted by [the unions], are in violation of Article XI, section 3, subdivision (b) of the California Constitution in that they permit [the unions] to decide if and when [City] may propose a ballot measure to the voters concerning the repeal or amendment of charter section 809 during the life of the MOUs.   This is an impermissible restriction on the constitutional prerogatives of the City under the California Constitution.”

After City dismissed its first cause of action, the court entered judgment for City on its claim for declaratory relief on October 29, 1992.   The unions appealed from the judgment.

Post–Judgment Proceedings 3

On October 27, 1992, the city council adopted a resolution submitting a charter amendment to repeal the eight-city salary formula to the voters at the primary election on March 2, 1993.

On November 24, 1992, the unions filed a complaint for injunctive relief and a petition for writ of mandate requiring City to meet and confer on section 809 and prohibiting City from holding the election.   The court refused to restrain the holding of the election, and 62.4 percent of the voters approved the repeal.

The Attorney General granted the unions leave to sue in quo warranto and, on August 18, 1993, the People of the state of California, together with the unions, filed a complaint challenging the validity of the election on the ground City failed to meet and confer with the unions prior to submitting the proposed repeal to the voters.   The superior court consolidated the unions' two actions and they are pending in the superior court.

DISCUSSION

1. Do the unions have standing to prosecute the appeal?***

2. May a charter city contractually agree, under a labor agreement negotiated between the city and its labor unions pursuant to the MMBA, to refrain, for the duration of the agreement, from exercising its right to propose charter amendments to the voters, a right normally reserved to the city by the California Constitution?

 The trial court determined the zipper clauses, as interpreted by the unions, were unconstitutional.   The clauses imposed an impermissible restriction on City's powers under article XI, section 3, subdivision (b) of the California Constitution (hereafter article XI, section 3(b)) by permitting the unions to decide if and when City could propose a ballot measure to the voters concerning the repeal or amendment of section 809 during the life of the MOUs.   The unions contend the court erred in so ruling because a city's power to propose charter amendments is not absolute.   They argue a charter city may constitutionally agree, by labor contract under the MMBA, to refrain from taking action to amend its charter for the life of the labor agreement.   City responds, the zipper clauses are void because the city council's constitutional power to propose charter amendments actually belongs to the electorate and the council cannot bargain away that right.

The trial court attempted to cut the Gordian knot before it by an interpretation that impacts the entire analysis of the case.   In concluding the zipper clauses were unconstitutional, the trial court assumed the interpretation urged by the unions that the clauses precluded City from proposing a ballot measure concerning the repeal of section 809 during the life of the MOUs.   Therefore, the first question presented is:  If the zipper clauses restrict City's ability to propose a ballot measure concerning the repeal of section 809 during the contractual period, do they violate article XI, section 3(b) of the California Constitution?   We conclude they do not.

A. Article XI, section 3(b) must be harmonized with the MMBA.

i. Article XI, section 3(b)

 Article XI, section 3(b) provides:  “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.”   The section is one of the “home rule” provisions of the Constitution.   Home rule provisions provide for a measure of independent authority for charter cities.   (Cal. Const., article XI, §§ 3, 5.)   When a charter city legislates with regard to municipal affairs, its charter prevails over general state law.   However, as to matters of statewide concern, charter cities remain subject to state law.  (County of Sacramento v. Fair Political Practices Com. (1990) 222 Cal.App.3d 687, 690–691, 271 Cal.Rptr. 802.)

 Generally, a charter city council functions by enacting legislation under its constitutional and statutory grants of authority.   For example, article XI, section 5, subdivision (b)(1) grants charter cities the power to constitute, regulate and govern a police force.  Article XI, section 5, subdivision (b)(4) empowers charter cities with “plenary authority” to provide for methods of appointment and compensation for city employees.   Consistent with this grant, various sections of the Government Code authorize a city to adopt a civil service system (§ 45000), fix compensation (§ 36506), provide medical insurance and pension benefits (§§ 45301, 53200) and even set firefighters' vacations (§ 53250).   The constitutional grants of authority, however, are not absolute.   The Supreme Court has held on several occasions that these provisions must be harmonized with laws addressing matters of statewide concern.   General laws seeking to accomplish a statewide objective may prevail over conflicting local regulations even if they impinge upon some phase of local control.  (Baggett v. Gates (1982) 32 Cal.3d 128, 139, 185 Cal.Rptr. 232, 649 P.2d 874.)

In Baggett, the court ruled that the Public Safety Officers' Procedural Bill of Rights Act (POBRA, §§ 3300–3311), legislation which sets forth procedural due process rights for police officers throughout the state, applied to charter cities.   The legislative purpose in enacting POBRA addressed an area of statewide concern:  promoting stable employment relations between police officers and their employers throughout the state.   Thus, the home rule provisions of article XI, section 5 did not preclude application of POBRA to charter cities.  (Baggett, supra, 32 Cal.3d at pp. 139–140, 185 Cal.Rptr. 232, 649 P.2d 874;  accord, Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 65, 151 Cal.Rptr. 547, 588 P.2d 249, MMBA's meet and confer provisions apply to charter cities;  District Election etc. Committee v. O'Connor (1978) 78 Cal.App.3d 261, 267, 144 Cal.Rptr. 442, Government Code section which required signatures equal to 10 percent of votes cast in last election to qualify initiative for ballot superseded city charter provision requiring signatures of 5 percent.)

ii. The MMBA Statutory Scheme

 The purpose of the MMBA is to strengthen employer-employee communication by providing a reasonable method of resolving disputes regarding wages, hours and conditions of employment between public employers and public employee organizations.  (§ 3500.)   The employer and employee organization must “meet and confer in good faith” with the objective of reaching agreement on matters within the scope of representation prior to the adoption by the public agency of its final budget for the next year.  (§ 3505.)   If agreement is reached, it is embodied in a memorandum of understanding which is presented to the governing body for determination.  (§ 3505.1.)   Once adopted by the governing body, the agreement is “indubitably binding.”  (Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 337–338, 124 Cal.Rptr. 513, 540 P.2d 609.)

iii. The Seal Beach Decision

In People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145, (“Seal Beach ”) the Supreme Court analyzed the relationship between a city's constitutional right to propose charter amendments and its obligations under the MMBA.   The Seal Beach City Council proposed, and the voters approved, charter amendments requiring the termination of any employee who participated in a strike and prohibiting the council from granting amnesty or rehiring any employee terminated for that reason.  (Id. at p. 595, 205 Cal.Rptr. 794, 685 P.2d 1145.)   Several city unions challenged the validity of the amendments on the ground the city had failed to meet and confer as required by the MMBA before submitting the proposals to the voters.   The city countered that its constitutional authority to propose amendments under article XI, section 3 was absolute and superseded the MMBA, a position supported at the time by San Francisco Fire Fighters v. Board of Supervisors (1979) 96 Cal.App.3d 538, 158 Cal.Rptr. 145.   The court rejected this argument.

The court reasoned a city's power to propose charter amendments to the electorate, article XI, section 3(b), can be subject to legislative regulation in matters of statewide concern.  (Seal Beach, supra, 36 Cal.3d at p. 598, 205 Cal.Rptr. 794, 685 P.2d 1145.)   After quoting article XI, section 5, subdivision (b)'s grant of “plenary authority” to charter cities, the court stated:

“What grant of power could sound more absolute?   Yet in an unbroken series of public employee cases, starting with Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 289–295 [32 Cal.Rptr. 830, 384 P.2d 158] [ ․ ] and ending for the time being with Baggett v. Gates (1982) 32 Cal.3d 128, 135, 140 [185 Cal.Rptr. 232, 649 P.2d 874] ․, it has been held that a ‘general law prevails over local enactments of a chartered city, even in regard to matters which would otherwise be deemed to be strictly municipal affairs, where the subject matter of the general law is of statewide concern.’  [Citation.]  Fair labor practices, uniform throughout the state, are a matter ‘of the same statewide concern as workmen's compensation, liability of municipalities for tort, perfecting and filing of claims, and the requirement to subscribe to loyalty oaths.’  [Citation.]  With these precepts in mind, in Professional Fire Fighters we resolved a conflict between the statutory right of firemen to organize and the city's ‘charter provisions, ordinances and regulations' [citation] in favor of the statute.   In Baggett v. Gates, supra, 32 Cal.3d 128 [185 Cal.Rptr. 232, 649 P.2d 874], we held it to be of no consequence that the Public Safety Officers' Procedural Bill of Rights Act ․ conflicted with and impinged on a charter city's power to determine the manner in which its employees could be removed and, generally, impinged ‘to a limited extent on the city's general regulatory power over the [police] department.’   [Citation.]  In the same vein, in Huntington Beach Police Officers' Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492 [129 Cal.Rptr. 893] ․, a charter city resolution purporting to exclude work hour schedules from the meet-and-confer process was held invalid.

“All these cases involved actual conflicts between the statutes and the city ‘law.’   No such conflict exists between the city council's power to propose charter amendments and section 3505.   Although that section encourages binding agreements resulting from the parties' bargaining, the governing body of the agency—here the city council—retains the ultimate power to refuse an agreement and to make its own decision.  [Citation.]  This power preserves the council's rights under article XI, section 3, subdivision (b)—it may still propose a charter amendment if the meet-and-confer process does not persuade it otherwise.

“We therefore conclude that the meet-and-confer requirement of section 3505 is compatible with the city council's constitutional power to propose charter amendments.”  (Seal Beach, supra, 36 Cal.3d at pp. 600–601, 205 Cal.Rptr. 794, 685 P.2d 1145, fns. omitted.)

iv. Application of Seal Beach

 Read together, Glendale City Employees' Assn., Inc. v. City of Glendale, supra, 15 Cal.3d at p. 336, 124 Cal.Rptr. 513, 540 P.2d 609 and Seal Beach hold that a city's power to propose changes to its charter is not absolute.   To promote harmonious and stable labor relations, a matter of statewide concern (Baggett v. Gates, supra, 32 Cal.3d at pp. 139–140, 185 Cal.Rptr. 232, 649 P.2d 874), the city must meet and confer on charter amendments which involve a mandatory subject of bargaining.   Once a city has bargained and agreed in an MOU to forego its power to propose amendments for the term of the agreement, the agreement is binding.

 If a city must meet and confer on proposed amendments affecting areas subject to the MMBA, it follows that a city can agree to forgo a charter amendment, propose a different amendment or concur with a proposal that inhibits its ability to change a charter term.   Every time one party to an agreement consents to a term they necessarily forgo their right to refuse to honor the term or to do anything inconsistent with good faith compliance with the term.   To conclude otherwise would endorse an illusory contract.

 A zipper clause that affects charter amendments must be viewed in the context of the goals of the MMBA.   The MMBA encourages labor agreements rather than impasse.   When the bargaining parties agree and their memorialized agreement (MOU) is ratified by the governing body, the agreement must be binding on the parties, during the terms of the agreement, to promote harmonious and stable labor relations.   If a charter city cannot agree to refrain from exercising its constitutional powers to legislate regarding a contract provision during the life of a MOU, then the goal of the MMBA—stable harmonious labor relations—is unattainable.   On the other hand, if a charter city can waive its right to legislate for the term of the MOU to achieve peaceful labor relations, the MOU zipper clauses are compatible with its constitutional power to propose charter amendments.

 In granting summary adjudication for City, the trial court found:

“The Seal Beach case stands for the proposition that the Legislature may regulate the City's exercise of its constitutional powers where it does not actually conflict with the power.   Here the City's power not only conflicts with the [unions'] exercise of [their] purported rights under the MOU but gives [the unions] a complete veto power on the City's right to exercise its constitutional powers.”

“The MOUs, as interpreted by [the unions], are in violation of Article XI, section 3, subdivision (b) of the California Constitution in that they permit [the unions] to decide if and when [City] may propose a ballot measure to the voters concerning the repeal or amendment of charter section 809 during the life of the MOUs.   This is an impermissible restriction on the constitutional prerogatives of the City under the California Constitution.”

The court erred in so concluding.  Seal Beach approved and relied on a line of cases holding general law prevails over local legislation enacted under a constitutional grant of authority if the subject matter is of statewide concern, even where the general law conflicts with the local enactment.   (Seal Beach, supra, 36 Cal.3d at p. 601, 205 Cal.Rptr. 794, 685 P.2d 1145.)  Seal Beach did not hold that in cases of actual conflict, the constitutional right would prevail.

B. City May Waive its Constitutional Power to Propose Charter Amendments in a Zipper Clause.

 A zipper clause is frequently found in labor agreements and is intended to “close out bargaining during the contract term and to make the written contract the exclusive statement of the parties' rights and obligations.   It is nothing but a diluted form of waiver ․ recognized by the Supreme Court.”  (N.L.R.B. v. Tomco Communications, Inc. (9th Cir.1978) 567 F.2d 871, 879.)   The zipper clauses at issue state, if a party wants to change a condition addressed in the MOU or meet and confer on a matter not addressed in the MOU, it shall request the other to meet and confer.   But, during the life of the MOU, either party may refuse the request without explanation, and no unilateral action may be taken by the other after a refusal.   If the zipper clauses contractually limit when City may propose charter amendments under its constitutional grant of authority, they do so only because City agreed to the limits during the negotiating process.

City claims any such waiver is void because neither party can waive the fundamental constitutional rights of another in a labor agreement.   (Phillips v. State Personnel Bd. (1986) 184 Cal.App.3d. 651, 659–660, 229 Cal.Rptr. 502;  Social Services Union v. Board of Supervisors (1990) 222 Cal.App.3d 279, 287, 271 Cal.Rptr. 494.)   City argues, while these cases involved attempted waivers of the constitutional rights of union members by their union, by parity of reasoning, that same principle applies to the city council's purported waiver of the electorate's right to approve charter amendments proposed by the council.

City's argument is based on the premise the council's power to propose ballot measures addressing a charter amendment is inseparable from the electorate's right to vote on the proposed amendment.   That premise is refuted by the plain language of article XI, section 3(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.”  (Emphasis added.)

The Constitution grants to the electorate the power to amend or repeal a charter section by initiative, but it reserves to the governing body the power to propose charter revisions or a new charter.

City's position is based on a footnote in International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 220 Cal.Rptr. 256.   The fire fighters' union sought to enjoin the city from conducting an election, contending the city had failed to meet and confer before proposing charter amendments relating to salaries and work benefits.   The trial court denied relief, believing it improper for a court to interfere with the electoral process.  (Id. at p. 690, 220 Cal.Rptr. 256.)   After the proposed amendments were approved by the electorate, the union filed supplemental complaints to enjoin the city clerk from filing the charter amendment with the Secretary of State.  (Id. at pp. 690–691, 220 Cal.Rptr. 256.)   The trial court denied relief on the ground it should not interfere with the legislative process.   Neither of those rulings was appealed.  (Id. at pp. 690–692, 220 Cal.Rptr. 256.)

After the charter amendments were filed, the city moved to dismiss the action claiming the amendments could now be challenged only by an action in quo warranto.   Seeking to avoid dismissal, the union argued there was a material difference between the city council's resolution proposing the charter amendments and the actual adoption of the amendments by the voters.   The court disagreed, stating:

“Appellants attempt to separate the resolution proposing the amendments being placed on the ballot from the enactment of the amendments themselves.   Since the resolution was indisputably the first step in the ‘purported enactment of ․ the amendment[s],’ i.e., inextricably part and parcel of the procedural regularity of the process of enactment, we view any attempted distinction along those lines as bootless.”  (International Assn. of Fire Fighters v. City of Oakland, supra, 174 Cal.App.3d at p. 692, fn. 7, 220 Cal.Rptr. 256.)

The issue addressed in International Assn. of Fire Fighters v. City of Oakland, supra, is materially different from the issue before this court.   There, plaintiff union contended quo warranto was not appropriate because they were challenging the decision of the city council to place the issue before the voters, not the ultimate approval of the amendments by the voters.   The court rejected that differentiation because the only remedy requested by plaintiffs was a declaration the approved amendments were void due to of a procedural irregularity early in the process of enactment.   Given the relief requested, there was no logical basis for distinguishing between the power of the city council to propose the amendments and the power of the electorate to approve those ballot proposals.

To the contrary in this case, the court must decide whether the city council may waive its right to propose the repeal of section 809 during the life of the MOU.   The subject MOU does not restrict the power of the electorate to repeal the same section via the initiative process.   Thus, in this case, there is a logical basis for distinguishing between the power of the city council to propose revisions and the power of the electorate to amend or repeal via the initiative process.   The footnote 7 language is not applicable.

City's reliance on San Francisco Fire Fighters v. Board of Supervisors, supra, 96 Cal.App.3d 538, 158 Cal.Rptr. 145 is also misplaced.   In San Francisco Fire Fighters, the court held that article XI, section 3, grants a board of supervisors the “unabridged right to propose charter amendments to the city's electors.”  (Id. at p. 543, 158 Cal.Rptr. 145.)   Five years later, in Seal Beach, supra, 36 Cal.3d at p. 594, 205 Cal.Rptr. 794, 685 P.2d 1145, the Supreme Court, while not expressly overruling San Francisco Fire Fighters, specifically disapproved of that court's interpretation of article XI, section 3, rejecting the notion of an absolute right of a governing body to propose charter amendments.  (Seal Beach, supra, 36 Cal.3d at p. 601, 205 Cal.Rptr. 794, 685 P.2d 1145.)

City contends, despite the Seal Beach holding, that courts continue to “emphasize” “[t]he California Constitution confers upon cities the unabridged right to propose charter amendments to the electorate,” citing United Public Employees v. City and County of San Francisco (1987) 190 Cal.App.3d 419, 422, 235 Cal.Rptr. 477.   However, the language quoted is just the starting point of the court's analysis regarding the rights guaranteed by article XI, section 3, which recognizes the need to harmonize the constitutional right with the MMBA mandates.  (United Public Employees, supra, 190 Cal.App.3d at pp. 422–423, 235 Cal.Rptr. 477.)   The reasoning in United Public Employees is completely consistent with the Seal Beach holding.

In the same vein, City submits that San Francisco Fire Fighters confers on the electorate “the absolute right to amend such a public entity's charter.”   (San Francisco Fire Fighters v. Board of Supervisors, supra, 96 Cal.App.3d at p. 542, 158 Cal.Rptr. 145.)   City claims the broad right of the electorate to approve charter amendments must encompass the right of the governing body to propose legislation because the constitutional powers to amend a charter encompass “a seamless web of constitutional protections.”   That argument fails to acknowledge the separate powers reserved to the governing body and to the electors in article XI, section 3(b).

The separateness of those powers is recognized in the Government Code.   Sections 34450 through 34457 set forth the procedure for the proposal, amendment or repeal of a city charter through an initiative process by the electorate.   The process begins with the submission of a petition containing the signatures of at least 15 percent of the voting population requesting an election for choosing a charter commission.   The charter commissioners, once elected, may then propose a new charter or charter amendments, which in turn are voted on by the electorate.

Alternatively, section 34458 allows a city's governing body to propose, amend or repeal the city charter through a separate procedure.   The governing body may, on its own motion, propose the new charter, or repeal or amendment of the charter directly to the electorate for vote.   No petition or commission is required.   The procedure is a much simpler method of placing a proposed charter amendment before the voting public.

Clark v. Patterson (1977) 68 Cal.App.3d 329, 137 Cal.Rptr. 275, also undermines City's “seamless web” contention.   There, the board of supervisors proposed a charter amendment limiting the rights of striking city employees.   Just before the election, a majority of the supervisors, after negotiations with city employees, voted to withdraw the proposed amendment.   A group of taxpayers sued the county clerk, requesting the proposed amendment be returned to the ballot.

The court denied their request.   It held that the board's right to withdraw the proposal was implicit in their right to propose the measure.   Further, the board's action did not interfere with the electoral process because the electorate's right to vote on the measures did not vest until the date absentee voters were permitted to cast their vote, two days after the amendment was withdrawn.  (Clark v. Patterson, supra, 68 Cal.App.3d at pp. 334, 336–338, 137 Cal.Rptr. 275.)   Finally, there was no merit to the taxpayers' contentions they had detrimentally relied on the board's initial action by refraining from exercising their own initiative powers to place the propositions on the ballot.   The electorate retained the power to propose a charter amendment through the initiative process, and the fact that it had not submitted a petition did not limit the board's separate power to propose and then withdraw a charter amendment.  (Id. at p. 339, 137 Cal.Rptr. 275.)

Under article XI, section 3(b) and section 34458, the Fresno City Council holds the power to propose charter amendments for voter approval.   Even assuming this is the power the council waived in the zipper clauses, the Fresno electorate retained its power to propose and approve charter amendments under the Constitution and sections 34450 through 34457 through the initiative process.   Accordingly, any waiver of the right to propose charter amendments contrary to the terms of the MOUs during the life of the agreements did not waive the electorates' separate right to propose and approve charter amendments through the initiative process.

 Finally, City contends that finding the unions' interpretation of the zipper clauses enforceable unjustifiably expands the Seal Beach holding.   In Seal Beach, the city council's “ultimate power to refuse an agreement and to make its own decision” (id. 36 Cal.3d at p. 601, 205 Cal.Rptr. 794, 685 P.2d 1145) was tempered only by the obligation to meet and confer.   Whereas, applying the holding to this case results in a “comprehensive surrender” of the city council's right to propose and the power of the electorate to approve charter provisions during the life of the MOUs.   Not so;  this court is merely recognizing the city council's right to waive temporarily its power to legislate on certain subjects covered by the MOU in exchange for stable and harmonious labor relations with its unions.

 A city has authority to enter into contracts which enable it to carry out its necessary functions.   However, broadly speaking, a city cannot by contract deprive itself of its legislative or governmental powers.   (Morrison Homes Corp. v. City of Pleasanton (1976) 58 Cal.App.3d 724, 734, 130 Cal.Rptr. 196;  Stephens v. City of Vista (9th Cir.1993) 994 F.2d 650, 655;  10 McQuillin, Municipal Corporations (3d ed. 1990 rev. volume) § 29.07, p. 285.)   But the rule voids only those contracts which amount to a complete “surrender” of a city's control of its municipal functions.  (Morrison Homes Corp. v. City of Pleasanton, supra, 58 Cal.App.3d at p. 734, 130 Cal.Rptr. 196.)

The MOUs embody the terms and conditions of employment for City's union employees on which the parties agreed.   The zipper clauses bind the parties to the terms of the agreements and prevent either party from demanding renegotiation from the other or unilaterally changing MOU terms during the life of the agreements.   Even assuming the zipper clause interpretation urged by the unions, there is no reason to read into the temporary agreements a complete abrogation of City's exercise of sovereign power to propose charter amendments.  (Cf. Professional Engineers v. Department of Transportation (1993) 13 Cal.App.4th 585, 591, 16 Cal.Rptr.2d 599.)

i. Destabilizing Effect of Invalidating Zipper Clauses

 The unions and amicus curiae, the Peace Officers Research Association of California (PORAC), claim if zipper clauses are unconstitutional, then public employer-employee labor agreements negotiated pursuant to the MMBA are meaningless.   The governing body of a charter city could avoid the terms of ratified MOUs by proposing charter amendments to the contrary.   In response, City argues that United Public Employees v. City and County of San Francisco, supra, 190 Cal.App.3d 419, 235 Cal.Rptr. 477, addressed and resolved this issue in City's favor.   City is mistaken.

In United Public Employees, San Francisco unions challenged a charter provision requiring voter approval of any increase in benefits to City and County employees.   The unions argued the need for voter approval conflicted with the provisions of the MMBA in that the board of supervisors could not ratify a labor contract granting enhanced employee benefits as envisioned by section 3505.1 and Glendale City Employees' Association, Inc. v. City of Glendale, supra, 15 Cal.3d 328, 124 Cal.Rptr. 513, 540 P.2d 609.   The court upheld the charter provision, ruling the voter approval requirement did not so encumber the bargaining process as to render the charter provision violative of the MMBA.  (United Public Employees v. City and County of San Francisco, supra, 190 Cal.App.3d at pp. 425–426, 235 Cal.Rptr. 477.)

City equates the unions' argument regarding the effect of the trial court's ruling on public sector labor relations with an argument made by the unions in United Public Employees:

“The San Francisco unions argued that ‘the charter provision in question is in direct conflict with the MMBA because “it undermines the very purpose for which the MMBA was passed by the Legislature,” “emasculates the negotiation process,” and “makes such negotiations meaningless and wholly unproductive” ’ because of ‘the inability of the Board of Supervisors to enter into a final binding and enforceable ․’ collective bargaining agreement.  [Citation.]  This is precisely the same argument that the Unions make here.”

Not so;  United Public Employees addressed obstacles to contract ratification, as opposed to the validity of contractual provisions by which a city agrees to temporarily forgo its right to propose charter amendments on certain subjects.

City finds three “critical determinations” in United Public Employees which it claims are relevant to this case.   None of the determinations is applicable to this case.  United Public Employees dealt with the requirement of voter approval in the ratification process;  it did not consider whether voters could undo contracts previously ratified by the governing body or its electorate.   It cannot be cited for the proposition urged by City that the unions' interpretation of the zipper clauses is unconstitutional because it contravenes the power of the electorate to amend their charter.

In summary, under the reasoning of Seal Beach, the unions' interpretation of the zipper clauses is not unconstitutional.  Seal Beach holds that a city's power to propose charter amendments is not absolute and must be harmonized with the MMBA.   As part of its labor contracts negotiated pursuant to MMBA, City promised in the zipper clauses it would not take unilateral action with respect to terms and conditions agreed upon in the MOUs during the life of the MOUs.   If article XI, section 3(b), bars City from agreeing not to exercise its power to legislate regarding the terms of the MOUs, such agreements are meaningless.

City cites no authority which bars a charter city's governing body from waiving its right to legislate during the life of the MOU.   Because the power of the governing body to propose charter amendments is separate from the power of the electorate to propose and approve such amendments, the city council's waiver of its right does not violate the electorate's rights under article XI, section 3.   Accordingly, the unions' interpretation of the zipper clauses is not unconstitutional and City was not entitled to summary adjudication on that ground.   The judgment of the trial court based on that ruling was incorrect.

3., 4. & 5.****

For the reasons stated herein, the judgment is reversed and remanded to the trial court for proceedings consistent with this opinion.   Costs to the Unions.

FOOTNOTES

1.   Government Code, sections 3500 et seq.   Further statutory references are to the Government Code unless otherwise indicated.

2.   Section 809 provides:  “Compensation of officers and employees of the city ․ shall be fixed by the Council as it may from time to time determine ․ provided that the monthly salaries of the members of the police and fire departments of the city shall be fixed annually at an amount not less than the average monthly salaries, including increased cost of living bonuses, or whatsoever other name known, paid or approved for payment to members of like or comparable grade or rank of the police and fire departments of the cities of Pasadena, Glendale, San Jose, Stockton, Sacramento, Berkeley, Richmond and Alameda as of July 1 of the new budget year․”  (Emphasis added.)

3.   Both parties request judicial notice of certain post-judgment proceedings.   The court will grant both requests pursuant to Evidence Code sections 451 and 452, subdivision (b).  (See e.g., Canaan v. Abdelnour (1985) 40 Cal.3d 703, 707–708, 221 Cal.Rptr. 468, 710 P.2d 268.)   The evidence is relevant to the issue of standing, and provides material information on the procedural posture of the underlying dispute and the relief available to the parties pursuant to this appeal.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

ARDAIZ, Acting Presiding Justice.

BUCKLEY and FRANSON,† JJ., concur.