BAIRD v. CITY OF LOS ANGELES (1975)

We here hold that a Los Angeles police officer designated as a ‘Policeman III’¹ holds a ‘position’ within the meaning of the Los Angeles City Charter and may not be deprived of its emoluments except in the manner set forth in that Charter. Section 202, subdivision (1) of the Los Angeles City Charter states that ‘The right of an officer or employee of the Police Department to hold his office or position and to the compensation attached to such office or position is hereby declared to be a substantial property right of which he shall not be deprived arbitarily or summarily, nor otherwise than as herein in this section provided.’

The police department held hearings which resulted in the redesignation of each of the appellants as a Policeman II. For this purpose an ‘Evaluation Review Board’ was convened. The procedure in this connection conformed to the requirements of a section of the Los Angeles City Administrative Code² (§ 4.140, subd. (n)) but did not give to appellants the various rights guaranteed by Charter section 202, including a hearing with notice of charges, the right to assistance of counsel and many other procedural protections.

The controversy in this case centers around the contention of appellants that Police Officer III is a position within the meaning of the Charter and the contention of the city and its chief of police (respondents) that Police Officer III is merely a pay grade within a general class of policeman. Our review of the respective provisions convinces us that Policeman III is a position within the meaning of the Charter and that accordingly the trial court erred in denying to appellants a writ of mandate and other relief.

There is no dispute that if the Charter provisions conflict with the ordinances reflected in the Administrative Code of if the procedures actually followed did not comply with the Charter and the latter is applicable, then the Charter must prevail. (Currieri v. City of Roseville (1970) 4 Cal.App.3d 997, 1001, 84 Cal.Rptr. 651.)

Other Charter and Administrative Code sections are of importance in resolving the dispute. Charter section 100 requires the Board of Civil Service Commissioners to establish ‘classes' for all employees (so far as is relevant here). The Charter section requires that each class include all positions, which are similar in specified particulars. Thus it is clear that the Charter intends a class to embrace more than one position, if the criteria of similarity are met.

The conflict with the Charter provisions arises out of the Jacobs Plan. ‘The Jacobs plan was the outgrowth of a contract entered into by the city and The Jacobs Company, Inc., by which the latter developed a job evaluation and pay plan and conducted a classification review covering the sworn [police and fire] personnel employed by the city.’ Melendres v. City of Los Angeles (1974), 40 Cal.App.3d 718, 724, 115 Cal.Rptr. 409, 413.)

Effective January 1, 1971, the Los Angeles City Council enacted an ordinance amending various sections of the Administrative Code in order to implement the Jacobs plan. Section (7) of the ordinance (hereafter ‘the Jacobs plan ordinance’) amended section 4.158 to read in pertinent part as follows:

(a) The following classes of positions and pay grades thereof are hereby created in the Fire and Police Departments, and the code numbers, titles and schedules as grades thereof. The schedules refer to the ranges of salaries set forth in Table I of this Article. Each member of the Fire and Police Departments shall be entitled to receive for his services in his position the rate of compensation prescribed for the class in which his position is allocated and the pay grade to which he is assigned.

(b) POLICE DEPARTMENT

(c) FIRE DEPARTMENT

The salary schedules referred to in this section were likewise contained in the Jacobs plan ordinance. Each schedule has within it a range of from three to five salary steps.

The parties' argument is focused on the intent of the council in enacting the Jacobs plan ordinance. That is a proper approach to determine the meaning of a statute or ordinance, but it leads to ambivalent results here. Even if it could be conclusively established that the council intended the appellation Policeman III be considered to be only a ‘pay grade’ and not a ‘position’, the supremacy of the Charter could not be avoided by the mere labels which the council attached to various positions. If Policeman III meets the attributes of a position as defined in the Charter, the holder of that position is entitled to the protection of Charter section 202 no matter how the council attempted to describe it. (Const., Art. XI, § 5, subd. (a).)

‘Respondents read the city's code as being compatible with its charter. If it is not, then the former is void. ‘The proposition is self-evident . . . that an ordinance must conform to, be subordinate to, not conflict with, and not exceed the [city's] charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state.’ (5 McQuillin Mun.Corp. (3d ed. 1969 rev.) § 15.19, pp. 79–80, § 15.15, p. 74; 1 Antieau, Municipal Corporation Law, § 3.09, pp. 122, 123 § 5.39, p. 292.28; Marculescu v. City Planning Com. (1935) 7 Cal.App.2d 371, 373–374 46 P.2d 308, hear. den.) . . .

‘Rules of statutory interpretation are to be applied to charters. The language of a charter must be given its plain meaning. (5 McQuillin Mun.Corp. (3d ed. 1966 rev.) § 9.22, pp. 682–684, 688.)’

(Currieri v. City of Roseville, supra, 4 Cal.App.3d 997 at p. 1001, 84 Cal.Rptr. 615 at p. 617.)

The Charter, section 100, in effect defines both ‘class' and ‘position’. After calling for the Board of Civil Service Commissioners to establish classes for all offices and places of employment, it states:

‘. . . Each class shall include all positions sufficiently similar in respect to the duties and responsibilities therefor in which: (a) The same requirements as to education, experience, knowledge and ability are demanded of incumbents; (b) the same tests of fitness may be used in choosing qualified appointees; (c) the same schedule of compensation may be made to apply with equity . . .’

The Jacobs plan ordinance recognizes this. It added subdivision (m) to section 4.140 of the Administrative Code. That section states “Class' or ‘Class of Positions' means a definitely recognized kind of employment in the City service designed to embrace all positions sufficiently similar in respect to the duties and responsibilities therefor . . .’ with respect to the identical characteristics just quoted from Charter section 100.

The same section 4.140 further defines classification plan as ‘an orderly arrangement of positions under separate and distinct classes so that each class will contain all those positions which are sufficiently similar in respect to the duties and responsibilities to meet the requirements of section 100 of the Charter, . . .’ (§ 4.140, subd. (e); emphasis supplied). This definition predates the Jacobs plan ordinance.

Subdivision (i) of the same section, likewise not amended by the Jacobs plan ordinance, defines position as ‘any office or place of employment in the . . . Police Department . . . the duties of which require services to be rendered by a member of . . . the Police Department.’

The Jacobs plan ordinance purports to define ‘pay grade’ as a salary level which the council establishes for pay setting purposes only. Section 4.140, subdivision (n) states that ‘the pay grades within the civil service class of Policeman are Policeman I, Policeman II and Policeman III.’ It also states that persons appointed to a ‘class having more than one pay grade may be assigned and reassigned to any pay grade within that class by the [Chief of Police] subject only to such administrative rules and procedures as may have been adopted by the . . . department.’ (§ 4.410, subd. (n).)

It was in accordance with procedural rules adopted pursuant to subdivision (n) that the Evaluation Review Board was convened here. Review Board was convened here. Subdivision (n) is the strongest indication of legislative intent in support of the respondents' agrument that Policeman III is not a position.

The Charter does not define the term ‘position’ in so many words, but it recognizes that persons employed by the city occupy positions. As noted, Charter section 100 requires the Board of Civil Service Commissioners to establish classes, and provides that a class is a group of positions similar to each other in defined characteristics. The Charter leaves it to the city council to create the positions. Section 33 of the Charter states that, except as to departments which control their own revenues and funds, the council ‘shall create the necessary positions in addition to those created by this charter . . .’ In light of this provision we reject the respondents' argument, unsupported by authority, that the council does not have power to create positions within the meaning of Charter section 202.

The definition of ‘position’ in the code, a definition predating the Jacobs plan ordinance and left unchanged by it (§ 4.140, subd. (i)) is simply ‘any office or place of employment . . . the duties of which require services to be rendered by a [police department] member. . . .’ That definition fits Policeman III. An administrative order promulgated by the department in 1970, in anticipation of the effective date of the Jacobs plan, itself refers to Policeman III, as well as other ranks, as ‘positions'. The order prescribes requirements to be met by officers in the Policeman III class which are much more stringent than the requirements for the position of Policeman II, to which appellants have been reassigned. (See fn. 3, infra.) Each of these circumstances leads us to conclude that Policeman III is a position within Charter section 202.

We are fortified in this result when we consider that the term ‘Class of Positions' is defined in the code in words identical to the description used in Charter section 100 when it discusses ‘positions'. Further, the language of the Jacobs plan ordinance (amending § 4.158, subd. (a) of the Code) literally describes Policeman III (and as well all of the other designations given to employees by § 4.158) as a position. The section says ‘[t]he following classes of positions and pay grades thereof are hereby created . . .’ (Emphasis supplied.)

We thus see that the council has given a dual characterization to the designation of the section: (1) A Policeman III holds a position within a class which contains other positions of the similarity required by Charter section 100. (2) Policeman III is also a pay grade. On this basis, we can agree with respondents when they state that the council intended to create pay grades when it enacted the ordinance. But, the council also created various positions when it enacted the Jacobs plan. In so doing it purported to define them, in portions of the ordinance, as ‘Classes of Positions'. However, the council cannot create classes. Only the Board of Civil Service Commissioners can do this (Charter § 100).³ The council can, however, create positions and fix salaries (Charter § 33) and it did both here.

This conclusion leaves the respondents free, within the confines of the code and the requirements of the Charter, to regulate the pay of department personnel. Administrative flexibility, of course, is desirable (e. g., Stohl v. Horstmann (1944) 64 Cal.App.2d 316, 323, 148 P.2d 697; Madden v. City of Stockton (1959) 175 Cal.App.2d 893, 896, 1 Cal.Rptr. 70) but not to the extent it violates rights otherwise adhering to employees (Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 587–588, 100 Cal.Rptr. 16, 493 P.2d 480, disapproving in part Monahan v. Dept. of Water & Power (1941) 48 Cal.App.2d 746, 120 P.2d 730, relied upon by respondents). Each of the salary schedules under the Jacobs plan ordinance is in steps. For instance, Schedule 3, designated as applicable to Policeman III, has four steps. As of the last revision of which we are aware, that schedule provided for salaries ranging from $14,135.76 in the lowest applicable step to $16,641.36 in the highest. Further, the code provides expressly that the highest of these steps ‘is a privilege to be earned and retained on the basis of merit, and not a right.’ (§ 4.159, subd. (e); emphasis supplied.) This subdivision spells out in detail the procedures for establishing when an officer's standard of service is satisfactory so as to award him the merit pay, and when it is not so as to deprive him of it. A board of review is provided for, to make these determinations. Thus, a policeman whose service is unsatisfactory can be deprived of his merit pay. This leaves him within his classification, whatever it may be.

The cases relied upon by respondents do not compel a different result than that reached by us. Stohl v. Horstmann, supra, 64 Cal.App.2d 316, 148 P.2d 697, and Madden v. City of Stockton, supra, 175 Cal.App.2d 893, 1 Cal.Rptr. 70, each involved an assignment of an officer to additional duties [jailer in Stohl; ‘police sergeant (special assignment)’ in Madden] at additional pay. In each the court assumed the question in issue here, i, e., the revocable nature of the assignment.⁴

Monahan v. Dept. of Water & Power, supra, 48 Cal.App.2d 746, 120 P.2d 730, to the extent it remains viable, involved claims by plaintiffs which are antithetical to those asserted here. There, the complaint was that persons whose duties and responsibilities ‘are for all purposes identical and similar’ (48 Cal.App.2d at p. 752, 120 P.2d at p. 733) with those of plaintiffs, had been employed at higher wages than plaintiffs by reason of being placed in a ‘false’ classification, and as a result of whim, caprice and favoritism. The case has been cited as holding that nothing in the Charter restricts the city's power to establish pay rates (Asher v. City of Los Angeles (1963) 223 Cal.App.2d 836, 841, 36 Cal.Rptr. 271). To the extent the language of Monahan suggested that because flexibility in administration is desired the court may not inquire into the motives that affected the commissioners in their selection, the commissioners in their selection, the decision has been disapproved in Bekiaris v. Board of Education, supra, 6 Cal.3d 575, 587–588, 100 Cal.Rptr. 16, 493 P.2d 480.

Sojka v. City of Pasadena (1971), 15 Cal.App.3d 965, 93 Cal.Rptr. 548 held that civil service rules concerning appointments did not apply to helicopter pilots for the Pasedena police department because that duty was a revocable assignment and not a promotion involving a change in rank. (15 Cal.App.3d at p. 972, 93 Cal.Rptr. at p. 553.) Aside from factual testimony supporting this result in the particular case, the court noted that while helicopter pilots would receive additional skill pay,⁵ ‘they would not receive a new salary based on a higher compensation range as set forth in the salary ordinance of respondent City . . .’ Precisely the contrary fact exists here; Policeman III do receive a new salary based on a higher compensation range than do Policeman II.

In its ruling, the trial court commented that Charter section 202, referred to disciplinary matters involving misconduct, while section 4.140 procedures (presumably the provisions of subdivision (n) of that section, calling for the establishment of rules and procedures for the administrative assignment and reassignment of officers from one pay grade to another) refer to non-disciplinary cases. In amplification of this comment the respondents argue that Charter section 202 limits a board of rights convened thereunder to only three possible actions; suspension for a period up to six months, with or without reprimand; reprimand alone; ‘or removal from office or position’. It is asserted, supported only by reference to the respondents' own pleading, that the latter alternative ‘has never been interpreted to mean that the board could prescribe a reduction in civil service classification.’ At the same time, respondents argued to the trial court that section 202 protected an officer's right to his class or his office, such as police officer, sergeant, or lieutenant. Since we hold that Police Officer III is itself a position, subject to the protection of Charter section 202, the respondents' own ‘third alternative’, as well as their trial court argument indicate that the alleged lack of remedy under the charter section is illusory.

In sum, we hold that Policeman III is a position within the meaning of Charter section 202, subdivision (1). It has been additionally described as a ‘pay grade’ by the council. That indication of legislative intent, however, cannot override the contrary commands of the Charter nor override the fact that the Jacobs plan ordinance also created Policeman III as a position.

As an additional point, the respondents urge that appellants did not exhaust appropriate administrative remedies, thereby creating a jurisdictional defect in this litigation. The remedy allegedly not exhausted is the provision of subdivision (n) of section 4.140 stating that grievances relating to the application of administrative rules and procedures shall be resolved in accordance with the police department's grievance procedure. It is conceded by appellants that they did not follow the grievance procedure. In our view, however, they were not required to do this. Appellants' entire argument is, and has been, that the administrative procedures and regulations used to reduce them from the position of Policeman III are void as in conflict with the Charter. We have so held here. In State of California v. Superior Court (1974), 12 Cal.3d 237, 250–251, 115 Cal.Rptr. 497, 524 P.2d 1281, the Supreme Court held that one challenging the very validity of the existence of an agency need not first make the challenge before the agency itself. That is the situation here.

The judgment is reversed.

FOOTNOTES

FOOTNOTE.  

1.  The police department also had officers designated as ‘Policewoman’. Sexual connotations have now been deleted in the City's ordinances and the appellation used is Police Officer. We use the terms Policeman III and Police Officer III interchangeably.

2.  Unless otherwise indicated section references in this opinion are to that code.

3.  We have already noted that administratively the police department has promulgated an order prescribing more stringent requirements for Police Officers III than for Police Officers II, and the council has determined that a higher salary schedule should apply to the former in comparison to the latter. These considerations could support an argument that rather than being a mere ‘pay grade’ as the respondents argue, or even a ‘position’, Policeman III must be defined as a ‘class'. We do not reach the point, but do note that the ‘class codes' now assigned to each of the titles or ranks listed in the current version of section 4.158(b) have been changed. For instance, where the section as amended by the Jacobs plan ordinance originally listed Policeman I, Policeman II, and Policeman III all in class code 2212, the class code numbers 2214–1, 2214–2 and 2214–3 are now assigned, respectively, to the titles Police Officer I, Police Officer II and Police Officer III.

4.  The payment of extra money for extra duties is separately recognized by the Administrative Code. Section 4.159, subdivision (g)(2) allows the chief to assign Police Officers III to specific duties of Assistant squad leader, crime task force; Court complaint officer. Lawsuits and claims investigator; Senior lend officer, basic car plan; Traffic follow-up inverstigator; Vice coordinator; Labor relations officer; and Senior lead officer, basic foot beat. While so assigned, a Policeman III is paid at the corresponding step of schedule 4, rather than schedule 3. The special and a pay provisions of the Administrative Code expressly distinguish between assignments of Police Officers II to certain duties and Police Officers III to others. This distinction, to sustains our conclusion that Policeman III is a separate position from that of Policeman I, or II.

5.  As we have noted above, section 4.159, subdivision (g)(2), expressly provides for special and hazard pay. Under paragraph B(b) of this subdivision a Police Officer II when assigned as a helicopter pilot shall be compensated at the corresponding step of Schedule 8 and a Police Officer III when assigned as the Chief Helicopter Pilot shall be compensated at the corresponding step of Schedule 9. These special provisions and the fact that they provide for different salary schedules for Police Officers II and III emphasize to us that each of these designations is a position and not a mere revocable assignment.

COLE,* Associate Justice (Assigned). FN* John L. Cole, Judge of the Superior Court of Los Angeles County, assigned by the Chairman of the Judicial Council.

COBEY, Acting P. J., and POTTER, J., concur.