Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL RECORDS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 89-1203
of :
: APRIL 11, 1991
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. DA VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE BARRY KEENE, MEMBER OF THE CALIFORNIA
SENATE, has requested an opinion on the following question:
May the city council of a charter city require that all discussions between elected city
officials and city employees or representatives of city employee organizations concerning matters
within the scope of representation during the meet and confer process be held at a public meeting
of the city council except for those held between the duly designated representatives?
CONCLUSION
The city council of a charter city may not require that all discussions between elected
city officials and city employees or representatives of city employee organizations concerning
matters within the scope of representation during the meet and confer process be held at a public
meeting of the city council except for those held between the duly designated representatives.
ANALYSIS
The present inquiry concerns the extent to which a city may regulate its employment
relations. Specifically, it must be determined whether a charter city may prohibit all pertinent
communication between an employee or employee organization representative and an elected city
officer during the meet and confer process, except for (1) the negotiating sessions of the duly
designated representatives and (2) discussions held at a public meeting of the city council. We
conclude that a charter city may not restrict these "meet and confer" subject matter discussions to
those between the designated representatives or held at a public meeting.
Besides the city in question, we note that another city has the following two
ordinance provisions:
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"During the Meet and Confer process for the adoption of a Memorandum of
Understanding, it shall be an unfair practice for an elected City Official, or a
classified employee, or any employee, or any person who might reasonably be
inferred to be a representative thereof, other than the City's duly designated and
appointed employee relations representative, to discuss, attempt to discuss, consult,
advocate or meet and confer with an employee organization representative, or a
person who might reasonably be inferred to be a representative thereof, on any
matter within the scope of representation regarding wages, hours, and other terms
and conditions of employment at other than a public meeting of the City Council.
"During the Meet and Confer process for the adoption of a Memorandum of
Understanding, it shall be an unfair labor practice for an employee organization
representative or a member of such employee organization, or a person who might
reasonably be inferred to be a representative thereof, to discuss, attempt to discuss,
consult, advocate or meet and confer with an elected city official, or a classified
employee, or any person who might reasonably be inferred to be a representative
thereof, other than the City's duly appointed and designated employee relations
representative, on any matter within the scope of representation regarding wages,
hours and other terms and conditions of employment at other than a public meeting
of the City Council or by written correspondence directed to the City Manager for
transmittal to the City Council."
A third city has the following two ordinance provisions:
"It shall be an unfair labor practice for any officer of the City and County or
any aide or administrative assistant of any officer of the City and County to meet and
confer, or to attempt to meet and confer with an employee, an employee
organization, or an employee representative, or any agent thereof, other than at a
scheduled public meeting of the Board of Supervisors or a committee meeting of the
Board of Supervisors, on matters which the Employee Relations Director has been
duly authorized to meet and confer on by an appropriate officer, board or
commission of the City and County.
"It shall be an unfair labor practice for any employee, an employee
organization, an employee representative, or any agent thereof, to meet and confer
or attempt to meet and confer with any officer, aide or administrative assistant to an
officer of the City and County other than at a scheduled public meeting of the Board
of Supervisors or a committee meeting of the Board of Supervisors, on matters which
the Employee Relations Director has been duly authorized to meet and confer on by
an appropriate officer, board or commission of the City and County."
A. THE MEYERS-MILIAS-BROWN ACT
Preliminarily, we examine the general provisions of the Meyers-Milias-Brown Act
(Gov. Code, §§ 3500-3510; "MMB Act")1 governing negotiations with respect to employment
relations by local public agencies. Under the MMB Act, public employees are assured the right to
form, join, and participate in the activities of employee organizations of their own choosing for the
purpose of representation on all matters of employment relations. (§ 3502.) Recognized employee
organizations have the right to represent their members. (§ 3503.) The governing body of a public
1
All section references are to the Government Code unless otherwise specified.
2. 89-1203
agency, or its designated officers or representatives, must meet and confer in good faith regarding
wages, hours, and other terms and conditions of employment with representatives of a recognized
employee organization, and must consider fully such presentations as are made by the organization
on behalf of its members prior to arriving at a determination of policy or course of action. (§ 3505.)
To "meet and confer in good faith" is defined in section 3505 as follows:
"`Meet and confer in good faith' means that a public agency, or such
representatives as it may designate, and representatives of recognized employee
organizations, shall 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 prior to the adoption
by the public agency of its final budget for the ensuing year. The process should
include adequate time for the resolution of impasses where specific procedures for
such resolution are contained in local rule, regulation, or ordinance, or when such
procedures are utilized by mutual consent."
In Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal. 3d 55, 61-62, the
Supreme Court stated with respect to the requirements of section 3505:
"Thus a public agency must meet with employee representatives (1) promptly
on request; (2) personally; (3) for a reasonable period of time; (4) to exchange
information freely; and (5) to try to agree on matters within the scope of
representation. Though the process is not binding, it requires that the parties
seriously `attempt to resolve differences and reach a common ground.' (Placentia
Fire Fighters v. City of Placentia (1976) 57 Cal. App. 3d 9, 25.) The public agency
must fully consider union presentations; it is not at liberty to grant only a perfunctory
review of written suggestions submitted by a union."
As for a city's or county's authority to adopt rules and regulations in administering
the MMB Act, section 3507 provides in part:
"A public agency may adopt reasonable rules and regulations after
consultation in good faith with representatives of an employee organization or
organizations for the administration of employer-employee relations under this
chapter (commencing with Section 3500)."
Pursuant to section 3507, "local government agencies [have] the power to establish and enforce rules
governing relations with their own employees." (International Brotherhood of Electrical Workers
v. City of Gridley (1983) 34 Cal. 3d 191, 197; see Vernon Fire Fighters v. City of Vernon (1980) 107
Cal. App. 3d 802, 814.)
The rule-making authority of a local agency may not, however, be used to "frustrate
the declared policies and purposes of the MMB Act." (Huntington Beach Police Officers' Assn. v.
City of Huntington Beach (1976) 58 Cal. App. 3d 492, 502; accord, People ex rel. Seal Beach Police
Officers Assn. v. City of Seal Beach (1984) 36 Cal. 3d 591, 597; International Brotherhood of
Electrical Workers v. City of Gridley, supra, 34 Cal.3d at 198; Vernon Fire Fighters v. City of
Vernon, supra, 107 Cal.App.3d at 814-815.) In Huntington Beach Police Off. Assn. v. City of
Huntington Beach, supra, 58 Cal. App. 3d 492, 503, the court concluded that a city acted improperly
in adopting a resolution in direct conflict with the MMB Act by cutting off communication between
it and its employees concerning a matter within the scope of representation.
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The overall purposes of the MMB Act are set forth in section 3500 as follows:
"It is the purpose of this chapter to promote full communication between
public employers and their employees by providing a reasonable method of resolving
disputes regarding wages, hours, and other terms and conditions of employment
between public employers and public employee organizations. . . . This chapter is
intended . . . to strengthen merit, civil service and other methods of administering
employer-employee relations through the establishment of uniform and orderly
methods of communication between employees and the public agencies by which
they are employed."
B. CONSTITUTIONAL CONSIDERATIONS
With this statutory background in mind, we turn to the issue of whether the proposed
restriction upon discussions held in private would be constitutional or whether specifically it would
violate constitutional freedoms of speech and petition. The First Amendment of the United States
Constitution provides:
"Congress shall make no law . . . abridging the freedom of speech, or of the
press, or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances."
Subdivision (a) of section 2 of Article I of the California Constitution states:
"Every person may freely speak, write and publish his or her sentiments on
all subjects, being responsible for the abuse of this right. A law may not restrain or
abridge liberty of speech or press."
Section 3 of Article I of the California Constitution provides:
"The people have the right to instruct their representatives, petition
government for redress of grievances, and assemble freely to consult for the common
good."
While the First Amendment is applicable to state and local governments through the
due process clause of the Fourteenth Amendment (see, e.g., Edwards v. South Carolina (1963) 372
U.S. 229, 235), the California Constitution is "more definitive and inclusive" in protecting the right
of speech and other guarantees of the First Amendment. (Robins v. Primeyard Shopping Center
(1979) 23 Cal. 3d 899, 908; Wilson v. Superior Court (1975) 13 Cal. 3d 652, 658.) Accordingly, we
will look first to California case law to determine whether the proposed council restrictions placed
upon the rights of speech and petition would violate the California Constitution.
In Fair Political Practices Com. v. Superior Court (1979) 25 Cal. 3d 33, the Supreme
Court considered various restrictions placed upon lobbyists under provisions of the Political Reform
Act of 1974. The court upheld certain of the requirements but found others unconstitutional. With
respect to requiring lobbyists to register, to report payments received for lobbying activities, to
describe the objectives of their lobbying activities, and to limit their political gifts to $10 in any
month for any candidate or officer, the court stated:
"Among the fundamental rights guaranteed by the First Amendment to the
United States Constitution is the right to "petition the Government for a redress of
grievances." The lobbyist's function obviously is to exercise such right on behalf of
4. 89-1203
his employer. The challenged statutes do not directly limit or restrict the right to
petition. Rather, the registration and reporting requirements impose burdens on the
right to petition, and the gift limitation affects the form of the petition. All may
petition provided they bear the burden of registration and reporting and do not offer
excessive gifts.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Although a fundamental interest may be involved, both the United States
Supreme Court and this court have recognized that not every limitation or incidental
burden on a fundamental right is subject to the strict scrutiny standard. When the
regulation merely has an incidental effect on the exercise of protected rights, strict
scrutiny is not applied. It is only when there exists a real and appreciable impact on,
or a significant interference with the exercise of the fundamental right that the strict
scrutiny doctrine will be applied. [Citations.]
"In United States v. Harriss (1954) 347 U.S. 612, 625-626, the court upheld
the Federal Regulation of Lobbying Act which required lobbyists to report lobbying
receipts and expenditures against challenges that it violated the guarantees of
freedom to speak, publish, and petition. Pointing out that Congress had not sought
to prohibit lobbying, the court concluded that Congress has a valid interest in
determining the source of voices seeking to influence legislation and could
reasonably require the professional lobbyist to identify himself and disclose his
lobbying activities. This court has also upheld reasonable statutes requiring
disclosure of financial activities of persons engaged in political processes.
[Citations.]
"As pointed out above, the registration, reporting, and gift provisions are not
direct limitations on the right to petition for redress of grievances. Application of the
burdens of registration and disclosure of receipts and expenditures to lobbyists does
not substantially interfere with the ability of the lobbyist to raise his voice. While
the burden of disclosure might be substantial for those engaging in extensive
lobbying activities, the burden is not great when viewed in the context of the total
activities engaged in. Requiring a person engaged in a business to describe it and to
report its receipts and expenses may not be viewed in our commercial society as a
substantial impediment to engaging in that business.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"The limitation on lobbyist gifts, affecting only the form of the petition, also
does not have a real and appreciable impact on the legitimate exercise of the rights
of petition and speech, and the strict scrutiny test is inapplicable." (Id., at pp. 46-48.)
Applying the principles set forth in the Fair Political Practices case, we believe that
the proposed local regulation would be subject to the "strict scrutiny doctrine," since its application
would "have a real and appreciable impact on the legitimate exercise of the rights of petition and
speech."
It is true that the employees and officials would be able to discuss their concerns in
a public meeting of the city council. This alternative, however, is not sufficient to avoid the strict
scrutiny test. In California Newspaper Publishers Assn., Inc. v. City of Burbank (1975) 51
Cal. App. 3d 50, 54, for example, the court stated the applicable principles as follows:
5. 89-1203
"Equally without merit are the city's contentions that the ordinance is not
unconstitutional on its face because, first, newsracks are not prohibited on private
property, and, second, newsracks are permitted on the public Golden Mall. `[O]ne
is not to have the exercise of his liberty of expression in appropriate places abridged
on the plea that it may be exercised in some other place.' (Schneider v. State (1939)
308 U.S. 147, 163.) The appropriate focus is on the blanket prohibition and not on
those areas left untouched. Thus, in Wollum v. City of Palm Springs, supra, 59
Cal. 2d 276, the court, in holding invalid an absolute prohibition on the use of
stationary sound trucks (id., at pp. 287-288), did not consider the ordinance was
redeemed by the fact that moving sound vehicles were to some extent permitted. (Id.,
at pp. 278-279. See also, Van Nuys Pub. Co. v. City of Thousand Oaks, supra, 5
Cal. 3d 817, 822; Young v. Municipal Court, 16 Cal. App. 3d 766, 770-771.)
"The suggestion that access to private facilities would be constitutionally
adequate was rejected in Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S.
546, in which Chattanooga officials refused to permit the play `Hair' to be shown in
the municipal theatre. (420 U.S. at p. 548.) The Supreme Court was not impressed
with the fact that there might be other theatres in town. `Even if a privately owned
forum has been available, that fact alone would not justify an otherwise
impermissible prior restraint. . . .[¶] Thus, it does not matter for purposes of this case
that the board's decision might not have had the effect of total suppression of the
musical in the community. Denying use of the municipal facility under the
circumstances present here constituted the prior restraint. That restraint was final.'
(420 U.S. at pp. 556-557.)"
The strict scrutiny test is applicable even though the proposed prohibition would only
apply to a limited number of persons. In Henrico Professional Firefighters v. Bd. of Sup'rs (4th Cir.
1981) 649 F.2d 237, the court considered whether a local board could allow comment by individuals
and representatives of associations but "deny the opportunity to be heard to a representative of an
employee association." (Id., at p. 241.) The court ruled:
"When governmental action deprives a person or organization of the right to
communicate its views, but at the same time allows other persons or organizations
to speak, the Supreme Court sometimes analyzes the case under the First
Amendment, and sometimes under the Equal Protection Clause of the Fourteenth
Amendment. [Citation.] Governmental action permitting some to speak, but
denying the opportunity to others, raises an `equal protection claim ... [that] is
closely intertwined with First Amendment interests.' [Citation.]
"In any event, under either the First or the Fourteenth Amendment, the
determination that a fundamental interest in speech has been abridged requires the
government in cases such as the one at hand to advance a compelling justification for
denying a particular person or entity the opportunity to speak....
"The Supreme Court has long held that public employees may not `be
compelled to relinquish the First Amendment rights they would otherwise enjoy as
citizens to comment on matters of public interest in connection with the operation
of the public [institutions] in which they work.' [Citation.]"
The strict scrutiny test is applicable even though the proposed prohibition is directed
at "lobbying" activities concerning economic and labor relations issues. In Moffett v. Killian (D.
Conn. 1973) 360 F. Supp. 228, 231, the court stated:
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"The mere fact, however, that one earns a living by exercising First
Amendment rights does not vitiate the ability to assert those rights....
"Furthermore, one does not forfeit First Amendment rights because he pays
someone to exercise them for him."
In Fritz v. Gorton (1974) 83 Wash.2d 175 [517 P.2d 911, 929], the Washington Supreme Court
concluded:
"That right to petition, of course, is not limited to mass demonstrations,
highly publicized in newspaper headlines and in television news reports.... We take
special and emphatic notice of the fact that lobbyists perform important and
constructive functions in communicating the wishes of the interests they represent
to the appropriate organs of government. In our opinion, the role of the lobbyist ...
is clearly assured and protected by the first amendment right to petition government."
In Henrico Professional Firefighters v. Bd. of Sup'rs, supra, 649 F.2d at 246, the court said with
respect to the "economic" content of the speech in question:
"Finally, that the proposed communication happens to involve a local
problem rather than a `public issue,' and advances `economic' rather than `political'
interests, does not remove the shield of the First Amendment. As has been stated by
Chief Judge Haynsworth, it is no answer to `equate the petition here involved with
internal bickering between an employer and his employee. The First Amendment is
not limited in its protection to issues of great social and political impact, ... and [the
Association's] petition should not be denied such protection simply because it deal[s]
with matters of a local nature.' [Citation.] `The grievances for redress of which the
right of petition was insured' are not confined to religious or political causes, but
include other fields of human interest, including business, labor, or economic
activity. [Citation.]" (Fn. omitted.)
Applying the strict scrutiny test, then, we find that it requires the governmental
interest sought to be advanced to be a compelling one, and the restriction must be narrowly focused
so as to "operate without unnecessarily circumscribing protected expression." (Brown v. Hartlage
(1982) 456 U.S. 45, 54; see Police Dept. of Chicago v. Mosley (1972) 408 U.S. 92, 101; Shelton v.
Tucker (1960) 364 U.S. 479, 488; Thornhill v. Alabama (1940) 310 U.S. 88, 96.)
What is the "compelling justification" for the proposed ban in question? Would, for
example, the confidential discussions adversely affect the negotiations taking place at the meet and
confer sessions? As previously noted, the primary goal of the MMB Act is "to promote full
communication between public employers and their employees." (§ 3500, emphasis added.) It has
not been demonstrated here that too much discussion would be harmful to the collective bargaining
process.
Moreover, the "discussions" in question would not necessarily be "negotiations" at
all. In Madison Sch. Dist. v. Wisconsin Emp. Rel. Comm's (1976) 429 U.S. 167, the Supreme Court
distinguished between a school teacher presenting his views at a school board meeting and
"negotiations" held in a collective bargaining session. The court stated:
"Holmquist did not seek to bargain or offer to enter into any bargain with the
board, nor does it appear that he was authorized by any other teachers to enter into
any agreement on their behalf. Although his views were not consistent with those
7. 89-1203
of MTI [the teachers' union], communicating such views to the employer could not
change the fact that MTI alone was authorized to negotiate and to enter into a
contract with the board.
"Moreover the school board meeting at which Holmquist was permitted to
speak was open to the public. He addressed the school board not merely as one of
its employees but also as a concerned citizen, seeking to express his views on an
important decision of his government." (Id., at pp. 174-175, fn. omitted.)
Similarly, in Henrico Professional Firefighters v. Bd. of Sup'rs, supra, 649 F.2d at 244, the court
concluded:
"Consequently, the Board's position in the instant case is defective because
it equates advocacy with negotiation. The present case involves the right of the
Association to speak on behalf of its members, not to force the Board to arbitrate or
negotiate with it concerning labor grievances. [Citation.]
"Similarly, although here the subject of the Association's contemplated
speech apparently concerns complaints of firefighters about the County's handling
of `heart-lung' disabilities, the mere presentation of the Association's position on that
issue does not constitute `negotiation' or `grieving.' No direct back-and-forth dealing
is contemplated here. Nor has the Association demanded that a special grievance
meeting be set up for it. The Association claims no right to be the employees'
exclusive representative, or to be designated the employees' agent for resolving
particular employer-employee disputes. `Representation' in the labor context means,
of course, something more extensive, more exclusive and more enduring than the
simple `representation' involved in standing up to speak on another's behalf." (Fn.
omitted.)
Even assuming the charter city in question may have a compelling interest in
regulating labor discussions with its employees, the proposed prohibition on speech must still meet
the "narrowly drawn" requirement of the strict scrutiny test. In the lobbyist cases, for example,
disclosure requirements were upheld only where they "indirectly" and "not substantially" affected
the rights of speech and petition. (See Fair Political Practices Com. v. Superior Court, supra, 25
Cal.3d at 47.)
We do not find here, however, such justifiable precision and narrow focus.
Alternatives less obtrusive may well suffice to meet the needs of the city. A "zealous solicitude for
rights falling within the protection of the First Amendment" (Burton v. Municipal Court (1968) 68
Ca.2d 684, 691) has not been demonstrated. Rather, there appears to be a lack of "perception that
free discussion concerning the issues involved in a labor dispute is ... `indispensable to the effective
and intelligent use of the processes of popular government to shape the destiny of modern industrial
society.'" (Pittsburgh United School Dist. v. California School Employees Assn. (1985) 166
Cal. App. 3d 875, 888-889, quoting Thornhill v. Alabama, supra, 310 U.S. at 103; see also, Brown
v. Hartlage, supra, 456 U.S. at 52; Abood v. Detroit Board of Education (1977) 431 U.S. 209, 230­
231; Mills v. Alabama (1966) 384 U.S. 214, 218-219; Eastern R.R. Conference v. Noerr Motor
Freight (1961) 365 U.S. 127, 137-138.) While collective bargaining laws must be administered in
a manner to accomplish their salutary purposes, "it is even more imperative that the labor relations
laws, particularly when promulgated by the self-interested public employer, cannot substitute for
the First Amendment." (Henrico Professional Firefighters v. Bd. of Sup'rs, supra, 649 F.2d at 244.)
8. 89-1203
It has not been established that the proposed ban on discussions between city
employees and officials meets the compelling interest or narrowly tailored requirements of the strict
scrutiny test. We thus conclude that the city council of a charter city may not require that all
discussions between elected city officials and city employees or representatives of city employee
organizations concerning matters within the scope of representation during the meet and confer
process be held at a public meeting of the city council except for those held between the duly
designated representatives.
*****
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