Riverside Sheriffs' Assn. v. County of Riverside CA4/2

Filed 6/29/16 Riverside Sheriffs’ Assn. v. County of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RIVERSIDE SHERIFFS’ ASSOCIATION,
Plaintiff and Appellant, E062836
v. (Super.Ct.No. RIC1312375)
COUNTY OF RIVERSIDE et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.
Affirmed.
Stone Busailah, Michael P. Stone, Muna Busailah and Robert Rabe for Plaintiff
and Appellant.
The Zappia Law Firm, Edward P. Zappia, Brett M. Ehman and Gail E. Wise for
Defendants and Respondents.
1
The Riverside County Sheriff’s Department (the Department) had a policy
regulating its employees’ outside employment activities (the policy), i.e., additional
employment outside of the Department. In November 2010, the Department revised the
policy. Those revisions caused the policy to be “changed significantly.”
In November 2013, the Riverside Sheriffs’ Association (the Association)
petitioned the trial court for a writ of mandate (Code Civ. Proc., § 1085) ordering the
Department to revert to the pre-2010 version of the policy, until the Department
engaged in collective bargaining with the Association regarding the policy revisions,
and the parties reached an agreement concerning the policy revisions. The trial court
denied the Association’s writ petition.
On appeal, the Association contends collective bargaining is required because
(a) the policy revisions significantly and adversely affected the Association’s members’
terms and conditions of employment, and (b) the policy revisions are not a fundamental
managerial decision. Alternatively, if the policy revisions are a fundamental
managerial decision, then the impact and effects of the policy revisions are subject to
bargaining. The Association also asserts collective bargaining is required pursuant to
Government Code section 1126.1 We affirm the judgment.
1 All subsequent statutory references will be to the Government Code unless
otherwise indicated.
2
FACTUAL AND PROCEDURAL HISTORY
A. PRIOR POLICIES
The Department had an outside employment policy that was issued in June 1994.
In January 2001, the outside employment policy was amended. In 2001, the policy
provided, in relevant part, full-time employees must have Department approval for
outside employment. It also reflected approval may be denied or withdrawn if (a) the
employee’s performance evaluation reflects they are less than competent, or if the
outside job might impair the employee’s efficiency when working at the Department;
(b) the outside employment would cause the employee to work in excess of six hours
when the employee is already scheduled for an eight-hour shift at the Department; or
(c) the outside employment requires the employee to make use of Department
equipment, uniform, or identification.
The 2001 policy also provided the procedure by which employees were to seek
approval of their outside employment. Employees needed to submit a completed
application form “through their chain of command to their Division Chief Deputy” “for
approval or disapproval.” The employee could not commence outside employment
until receiving approval. The employee was required to reapply for approval “any time
the conditions of the outside employment activities change from that described in the
initial request.” An employee would be subject to discipline for engaging in outside
employment without prior Department approval.
3
B. 2010 POLICY
In November 2010, the Department revised the outside employment policy. A
memo concerning the revision was sent to all personnel and reflected the policy had
“changed significantly.” The 2010 policy set forth a definition of outside employment.
It required an employee to obtain approval from the Department prior to commencing
outside employment. The failure to obtain preapproval could lead to discipline. In
order to obtain approval, an employee needed to complete an application, give the
application to the employee’s supervisor, which would “then be forwarded through the
chain of command to the division chief for consideration.” Employees still needed to
resubmit an application “any time the conditions of the outside employment activities
change from that described in the initial request.” Additionally, (1) employees were
now required to obtain “annual approval for continuing outside employment,” and
(2) employees approved for outside employment were considered to have agreed “that
their personal financial records may be requested and reviewed/audited for [a] potential
conflict of interest pursuant to Government Code Section 3308.”
The 2010 policy revisions set forth an appeal process should an application for
outside employment be denied. The policy also explained that permission for outside
employment “may be revoked or suspended” (1) when the employee’s work at the
Department is evaluated by a supervisor as being “unsatisfactory” or “below standard,”
(2) as a “condition of sustained discipline,” (3) when the employee’s conduct or outside
employment conflicts with the Department’s policies, or (4) when the employee “is
unable to perform at a ‘full duty’ capacity due to an injury or other condition.”
4
The 2010 policy revisions explained activities that would be forbidden as outside
employment, such as those requiring the use of Department facilities, equipment,
uniform, or badge. The policy prohibited employees from working as “a private security
guard, private investigator or other similar private security position.” However, the
policy set forth procedures for private entities seeking outside security services from
Department employees. In such a situation, the private entity would need to apply to the
Department for the outside services. If the request were to be approved, then (1) the
employees would have to wear their Department uniforms, (2) compensation for such
outside security services would be “pursuant to normal overtime procedures,” and
(3) such services would not be subject to collective bargaining. Further, any arrest made
by an employee during the employee’s outside overtime assignment would still need to
comply with the Department’s timelines regarding completing reports, and that time
spent on such reports “shall be considered incidental to the outside overtime
assignment.”
The policy also provided that an employee must notify the Department if the
employee terminates his or her outside employment. Also, the policy indicated
employees cannot engage in outside employment while using routine sick leave. If an
employee is on disability leave or modified/light duty, then that employee must notify
his supervisor in writing of whether or not he plans to continue his outside employment
while on leave or light duty status. The immediate supervisor will then make a
recommendation to the Sheriff as to whether such outside employment should continue.
If the Sheriff determines the outside employment should be discontinued, or if the
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employee fails to notify his supervisor of his intent regarding outside employment, then
a “notice of revocation of the member’s permit” will be sent to the employee.
C. LETTER
In January 2011, the Association sent a letter to the Riverside County Director of
Employee Relations. In the letter, the Association demanded Riverside County (the
County) “comply with the meet-and-confer requirements of the Meyers-Milias-Brown
Act (‘MMBA’), Government Code §§ 3500-3511.”2 The Association noted the
MMBA requires the County to meet and confer with the Association on issues of
wages, hours, and other terms and conditions of employment. The Association asserted
the Department violated the MMBA by unilaterally revising the policy in 2010 without
first meeting and conferring with the Association. The Association demanded the
County (1) rescind the 2010 revisions to the policy and (2) meet and confer with the
Association regarding the 2010 revisions to the policy prior to implementing any
revisions. The Association notified the County that a failure to comply with the
MMBA would result in the initiation of litigation, possibly including a petition for writ
of mandate.
D. PETITION FOR WRIT OF MANDATE
On November 1, 2013, the Association petitioned the trial court for a writ of
mandate. In the petition, the Association asserted the Department, in implementing the
2 The Meyers-Milias-Brown Act (MMBA) “governs labor-management
relations at the local government level.” (Claremont Police Officers Assn. v. City of
Claremont (2006) 39 Cal.4th 623, 628 (Claremont).)
6
2010 revisions, unilaterally created “a change in working conditions, to wit: no longer
following the long standing policy and practice of allowing [Association] members to
acquire and maintain secondary employment, [the Department has] acted to interfere
with, intimidate, restrain, and coerce its members for the exercise of their right under
Government Code [section] 3502, in that people viewing this situation will believe that
[the Association] is not able to exercise its right to represent its members in their
employment relations with [the Department].”
The Association requested a writ of mandate ordering the Department “not to
change its policy and practice of allowing [the Association’s] members to acquire and
maintain secondary employment, absent agreement to do so as part of the collective
bargaining process.”
In the Association’s Points and Authorities in Support of the petition, the
Association explained that an April 2008 Memorandum of Understanding (MOU)
between the Association and the Department contains a “zipper clause.” The zipper
clause provides that, during the term of the agreement (April 2008 through January
2011), “the parties may meet and confer on issues within the scope of representation
only if they mutually agree to do so.” The zipper clause is meant to “bring[] closure to
the bargaining process,” such that neither party changes the terms of the agreement
during the agreement’s effective period.
The Association asserted that allowing employees to maintain outside
employment was such a longstanding Department policy that it constitutes “an implied
condition of employment.” The Association argued that the Department’s decision to
7
“depart from this policy and practice” without “indicat[ing] a willingness to meet and
confer” constitutes a deprivation of the Association’s “right to collective bargaining
guaranteed in the MMBA and . . . a breach of the current MOU.”
E. DEMURRER
The Department demurred to the writ petition. First, the Department asserted the
Association had six months to file an unfair labor practices charge under the MMBA,
and because the Association waited three years to file its petition, the petition was
untimely. Second, the Department asserted section 1126 mandated the policy (1) be
adopted, and (2) excluded from collective bargaining.3 Third, the Department
3 Section 1126 provides: “(a) Except as provided in Sections 1128 and 1129, 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. The 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
[footnote continued on next page]
8
contended “[o]utside employment policies are not within the scope of representation as
defined by the MMBA,” and, therefore, the Department is not obligated to meet and
confer about the policy revisions.
F. OPPOSITION TO THE DEMURRER
The Association opposed the demurrer. The Association asserted there is a
three-year statute of limitations for filing an unfair labor practices petition under the
MMBA. In response to the Department’s reliance on section 1126, the Association
asserted there is a parallel statute, section 19990, which also concerns conflicts of
interest.4 The Association asserted case law and administrative law concerning section
[footnote continued from previous page]
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
the time demands as would render performance of his or her duties as a local agency
officer or employee less efficient.
“(c) The local agency shall adopt rules governing the application of this section.
The 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 such a determination and
from its application to an employee. Nothing in this section is intended to abridge or
otherwise restrict the rights of public employees under Chapter 9.5 (commencing with
Section 3201) of Title 1.
“(d) The application of this section to determine what outside activities of
employees are inconsistent with, incompatible with, or in conflict with their duties as
local agency officers or employees may not be used as part of the determination of
compensation in a collective bargaining agreement with public employees.”
4 Section 19990 provides: “A state officer or employee shall not engage in any
employment, activity, or enterprise which is clearly inconsistent, incompatible, in
conflict with, or inimical to his or her duties as a state officer or employee.
“Each appointing power shall determine, subject to approval of the department,
those activities which, for employees under its jurisdiction, are inconsistent,
[footnote continued on next page]
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19990 reflect that policies concerning employees’ conflicts of interest or incompatible
[footnote continued from previous page]
incompatible or in conflict with their duties as state officers or employees. Activities
and enterprises deemed to fall in these categories shall include, but not be limited to, all
of the following:
“(a) Using the prestige or influence of the state or the appointing authority for
the officer’s or employee’s private gain or advantage or the private gain of another.
“(b) Using state time, facilities, equipment, or supplies for private gain or
advantage.
“(c) Using, or having access to, confidential information available by virtue of
state employment for private gain or advantage or providing confidential information to
persons to whom issuance of this information has not been authorized.
“(d) Receiving or accepting money or any other consideration from anyone other
than the state for the performance of his or her duties as a state officer or employee.
“(e) Performance of an act in other than his or her capacity as a state officer or
employee knowing that the act may later be subject, directly or indirectly to the control,
inspection, review, audit, or enforcement by the officer or employee.
“(f) Receiving or accepting, directly or indirectly, any gift, including money, or
any service, gratuity, favor, entertainment, hospitality, loan, or any other thing of value
from anyone who is doing or is seeking to do business of any kind with the officer’s or
employee’s appointing authority or whose activities are regulated or controlled by the
appointing authority under circumstances from which it reasonably could be
substantiated that the gift was intended to influence the officer or employee in his or her
official duties or was intended as a reward for any official actions performed by the
officer or employee.
“(g) Subject to any other laws, rules, or regulations as pertain thereto, not
devoting his or her full time, attention, and efforts to his or her state office or
employment during his or her hours of duty as a state officer or employee.
“The department shall adopt rules governing the application of this section. The
rules shall include provision for notice to employees prior to the determination of
proscribed activities and for appeal by employees from such a determination and from
its application to an employee. Until the department adopts rules governing the
application of this section, as amended in the 1985-86 Regular Session of the
Legislature, existing procedures shall remain in full force and effect.
“If the provisions of this section are in conflict with the provisions of a
memorandum of understanding reached pursuant to Section 3517.5, the memorandum
of understanding shall be controlling without further legislative action, except that if
such provisions of a memorandum of understanding require the expenditure of funds,
the provisions shall not become effective unless approved by the Legislature in the
annual Budget Act.”
10
activities are within the scope of representation, i.e., within the scope of collective
bargaining. The Association argued that section 1126 should be interpreted
consistently with section 19990 and, therefore, the subject matter of section 1126, i.e.,
conflicts of interest, is within the scope of collective bargaining.
The Association argued section 1126 does not prohibit collective bargaining.
Section 1126, subdivision (d), provides: “The application of this section to determine
what outside activities of employees are inconsistent with, incompatible with, or in
conflict with their duties as local agency officers or employees may not be used as part
of the determination of compensation in a collective bargaining agreement with public
employees.”
The Association asserted the plain meaning of section 1126, subdivision (d), is
that “it prohibits using outside activities, i.e., ‘off duty employment,’ as part of the
process to determine compensation during collective bargaining.” In particular, it
restricts agencies “from ‘using off-duty employment as a bargaining tool’ as part of the
‘determination of compensation.’” The Association asserted subdivision (d) did not
prevent collective bargaining over the determination of what outside activities would be
in conflict with the employees’ duties.
G. REPLY TO OPPOSITION
The Department filed a reply to the Association’s opposition. The Department
asserted section 1126 applies to local agencies, while section 19990 applies to state
agencies and, therefore, section 19990 is inapplicable in this case. The Department
11
contended the Association ignored differences between the two statutes that would
cause section 1126 conflict of interest issues not to fall within collective bargaining.
H. DEMURRER RULING
The trial court, in particular Judge Molloy, overruled the Department’s demurrer.
At the hearing on the demurrer, the trial court concluded (1) a three-year statute of
limitations applies, and (2) the Legislature included the language about barring
collective bargaining in section 1126 because it wanted to prevent outside employment
“from being used as a bargaining chip. . . [¶] [t]o bargain a better deal for the County in
terms of, okay, we’re not going to let you engage in these outside practices unless you
accept our deal on just compensation.”
I. ANSWER
The Department filed an answer to the Association’s writ petition. In the
answer, the Department alleged the Association (1) failed to state facts sufficient to
constitute a cause of action and (2) failed to comply with filing requirements.
J. PREEMPTORY WRIT
The Association petitioned the trial court for a preemptory writ of mandate
ordering the Department to rescind the 2010 policy revisions and to cease and desist
from changing the outside employment policy unless the Department complied with the
MMBA. The Association raised essentially the same arguments that were raised in
opposition to the demurrer: (1) section 19990, which concerns conflicts of interest on a
state level and policies related to those issues have been determined to be subject to
collective bargaining; (2) section 1126, which concerns local agency conflicts of
12
interest, is modeled on section 19990; and (3) section 1126 should be interpreted in
accordance with section 19990.
The Department opposed the petition for a preemptory writ of mandate relying
on the same arguments it raised in its demurrer: (1) section 1126 is distinguishable
from section 19990; (2) the express language and legislative history of section 1126
reflects collective bargaining is prohibited; and (3) the MOU excludes the outside
employment policy from collective bargaining.
The trial court denied the petition for a preemptory writ of mandate.
K. TENTATIVE RULING
The trial court issued a seven-page tentative ruling. In the tentative ruling, the
trial court, in particular Judge Waters, concluded (1) although the Association failed to
explain how the policy affects “wages, hours, and other terms and conditions of
employment” such that it would fall within the scope of collective bargaining, it was
“apparent” that some of the 2010 revisions to the policy affect conditions of
employment; (2) section 1126, subdivision (d), precludes collective bargaining over
outside employment in connection with determining compensation, but it may still be
part of the collective bargaining process in terms of negotiating hours and conditions of
employment; and (3) the “zipper clause” in the MOU does not give the Department the
authority to make unilateral changes to the status quo.
The trial court also considered whether the policy amendments were a
managerial function and, therefore, subject to the meet-and-confer process. The trial
court found the Association failed to address the issue, and the Department
13
“oversimplif[ied]” the issue. The trial court explained that neither party’s argument
took into account that there is a distinction to be made “between deciding on the policy,
and the implementation and effects of that decision. Even if the policy decision itself is
not subject to a duty to meet and confer, the implementation of the policy may well be.”
The trial court observed that the parties “have made this into an all or nothing
position—either the entire policy is subject to meet and confer, or none of it is.” The
court tentatively decided that it would require further briefing from the parties.
L. SEPTEMBER HEARING
On September 26, 2014, the trial court held a hearing on the writ petition. The
trial court explained, “I’m not seeing this necessarily as an all or nothing. Either every
aspect related to the outside employment is exempt from bargaining, or all of it has to
be bargained.”
The Association argued that supplemental briefing was not necessary because
the administrative cases interpreting section 19990 reflect the issue of outside
employment is subject to collective bargaining; because section 1126 is very similar to
section 19990, the 2010 policy revision, which is based on section 1126, is subject to
collective bargaining.
The Department also argued that supplemental briefing was not necessary. First,
the Department asserted the outside employment policy had never been a topic at past
collective bargaining negotiations and, therefore, “[i]t’s a [D]epartment policy,” which
means it is “a management policy, not a negotiated term.” The Department argued that
the Association’s failure to argue the managerial function issue in its petition was a
14
failure of the Association to meet its burden of proof and, therefore, the writ should be
denied. The Department argued that the Association failed to ask for partial relief or
that only the effects of the policy should be bargained for. The Department asserted
that the Association’s failure to ask for partial relief precluded the trial court from
granting such relief.
Second, the Department asserted the Association was “relying on an irrefutably
inapplicable statute.” The Department further argued that the Association was relying
on administrative law decisions issued by the Public Employment Relations Board
(PERB), but law enforcement is exempt from PERB, which is why the instant case was
in court rather than at PERB. Additionally, the Department asserted section 1126,
subdivision (d), expressly exempted the 2010 policy revisions from being part of the
collective bargaining negotiations.
The trial court stated supplemental briefing would not be granted and took the
matter under submission.
M. OCTOBER HEARING
On October 27, 2014, the trial court held another hearing in the matter because
the Department had changed its proposed judgment. The trial court explained that the
original proposed judgment was a simple denial, while the second proposed judgment
“has a lot more in there than certainly [the trial court] even contemplated.”
The court continued, “I’ll tell you both, after you rejected my very generous
offer to allow both of you to do more briefing and you both insisted that from your
perspective the briefing was adequate, I looked at the petitioner’s argument which was
15
based solely and exclusively on Government Code, section 19990 and a PERB case and
concluded that the statute and case [are] inapplicable because of the suppression issue.
[¶] I didn’t go to any of the issues raised in the County’s response. You know, you
wanted a ruling based on the briefing, petitioner had the burden. Petitioner presented
only one argument, and I rejected that argument.”
The Department explained it did not understand the trial court’s rationale when it
drafted the second proposed judgment. The trial court instructed the Department to
submit a proposed judgment that was a simple denial. The trial court explained, “It’s a
legal issue and almost doesn’t matter why I ruled. If you’re going to go up to the Court
of Appeal, they are going to come to their own understanding.” The trial court denied
the Association’s petition for writ of mandate.
DISCUSSION
A. WRIT OF MANDATE
As a threshold issue, the Department contends its decision to revise the outside
employment policy was discretionary, rather than ministerial and, therefore, the policy
revisions are not the proper subject for a writ of mandate.
A court may issue a writ of mandate to an agency to compel the performance of
an act that the law requires to be performed. (Code Civ. Proc., § 1085, subd. (a);
Gomez v. Superior Court (2012) 54 Cal.4th 293, 300-301.) “‘To obtain writ relief
under Code of Civil Procedure section 1085, the petitioner must show there is no other
plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial
duty to act in a particular way; and the petitioner has a clear, present and beneficial
16
right to performance of that duty.’” (Zubarau v. City of Palmdale (2011) 192
Cal.App.4th 289, 305.)
“‘“A ministerial act is an act that a public officer is required to perform in a
prescribed manner in obedience to the mandate of legal authority and without regard to
his own judgment or opinion concerning such act’s propriety or impropriety, when a
given state of facts exists. Discretion, on the other hand, is the power conferred on
public functionaries to act officially according to the dictates of their own judgment.”’”
(US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 138.)
In the Association’s petition, it seeks a writ ordering the Department “not to
change its policy and practice of allowing [Association] members to acquire and
maintain secondary employment, absent agreement to do so as part of the collective
bargaining process.” The Association’s request reflects options. The Department can
choose to (1) change the policy, if it engages in collective bargaining; or (2) not change
the policy. Options do not correlate with a writ of mandate because mandate applies
when the petition seeks to compel a ministerial, not discretionary, act. (US Ecology,
Inc. v. State of California, supra, 92 Cal.App.4th at p. 138; Levingston v. Retirement
Board (1995) 38 Cal.App.4th 996, 1001.)
In order to remedy this problem, we will construe the Association’s petition as
seeking only to have the 2010 policy revision rescinded, because the revision violates
the law. In other words, we will focus on what has happened in the past, as opposed to
what may occur in the future. With this understanding, the Association is only seeking
17
to have the revisions to the policy rescinded, which would be a ministerial action and,
therefore, the proper subject of a writ of mandate.
B. STANDARD OF REVIEW
“In reviewing a judgment on a petition for writ of mandate under Code of Civil
Procedure section 1085, we apply the substantial evidence test in assessing the court’s
factual findings but exercise independent judgment on purely legal issues such as the
interpretation of statutes.” (Rivero v. Lake County Bd. of Supervisors (2014) 232
Cal.App.4th 1187, 1193-1194.)
C. WAGE, HOURS, AND WORKING CONDITIONS
1. CONTENTION
In the Association’s writ petition, it asserts the 2010 policy revisions must be
rescinded because the Department imposed the revisions unilaterally.
2. COLLECTIVE BARGAINING LAW
“‘The MMBA applies to local government employees in California. [Citation.]
“The MMBA has two stated purposes: (1) to promote full communication between
public employers and employees, and (2) to improve personnel management and
employer-employee relations. (§ 3500.) To effect these goals the act gives local
government employees the right to organize collectively and to be represented by
employee organizations (§ 3502), and obligates employers to bargain with employee
representatives about matters that fall within the ‘scope of representation’ (§§ 3504.5,
3505).”’
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“Under the MMBA, a public employer and a recognized employee organization
have a mutual obligation to meet in person and confer promptly upon either party’s
request in an endeavor to reach [an] agreement on matters within the scope of
representation before the public agency’s adoption of its final budget for the coming
year. [Citations.] The obligation to bargain in good faith requires that the parties ‘must
genuinely seek to reach agreement.’ [Citation.] The MMBA does not require that the
parties actually reach an agreement. [Citation.] ‘[A] public employer has the ultimate
power to reject employee proposals on any particular issue.’
“Section 3504 defines the term ‘scope of representation’ to include ‘all matters
relating to employment conditions and employer-employee relations, including, but not
limited to, wages, hours, and other terms and conditions of employment, except,
however, that the scope of representation shall not include consideration of the merits,
necessity, or organization of any service or activity provided by law or executive order.’
The California Supreme Court has stated: ‘The definition of “scope of representation”
and its exceptions are “arguably vague” and “overlapping.” [Citations.] “‘[W]ages,
hours and working conditions,’ which, broadly read could encompass practically any
conceivable bargaining proposal; and ‘merits, necessity or organization of any service’
which, expansively interpreted, could swallow the whole provision for collective
negotiation and relegate determination of all labor issues to the city’s discretion.”’”
(Association of Orange County Deputy Sheriffs v. County of Orange (2013) 217
Cal.App.4th 29, 38-39 (Orange County).)
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The California Supreme Court crafted a three-part test “to determine whether an
employer’s action is subject to the meet-and-confer requirements of section 3505:
‘First, we ask whether the management action has “a significant and adverse effect on
the wages, hours, or working conditions of the bargaining-unit employees.” [Citation.]
If not, there is no duty to meet and confer. [Citations.] Second, we ask whether the
significant and adverse effect arises from the implementation of a fundamental
managerial or policy decision. If not, then . . . the meet-and-confer requirement applies.
[Citation.] Third, if both factors are present—if an action taken to implement a
fundamental managerial or policy decision has a significant and adverse effect on the
wages, hours, or working conditions of the employees—we apply a balancing test. The
action “is within the scope of representation only if the employer’s need for
unencumbered decisionmaking in managing its operations is outweighed by the benefit
to employer-employee relations of bargaining about the action in question.” [Citation.]
In balancing the interests to determine whether parties must meet and confer over a
certain matter [citation], a court may also consider whether the “transactional cost of
the bargaining process outweighs its value.”’” (Orange County, supra, 217
Cal.App.4th at p. 40.)
3. ADVERSE EFFECT
We begin with the first step—whether the Department’s 2010 revisions to the
outside employment policy had a significant and adverse effect on the wages, hours, or
working conditions of the Association’s members. If it did not have a significant and
20
adverse effect, then there is no duty to meet and confer. (Orange County, supra, 217
Cal.App.4th at p. 40.)
“The MMBA does not define the phrase ‘other terms and conditions of
employment.’ (§ 3504.) Courts have construed the phrase ‘wages, hours, and other
terms and conditions of employment’ to include the transfer of bargaining-unit work to
nonunit employees, mandatory drug testing of employees, work shift changes, and the
adoption of a disciplinary rule prohibiting use of public facilities for personal use.”
(Orange County, supra, 217 Cal.App.4th at pp. 40-41.)
The last category, regarding disciplinary rules prohibiting personal use of public
facilities, refers to a case in which firefighters were prohibited from using city facilities
to wash their personal vehicles while not on duty. (Vernon Fire Fighters v. City of
Vernon (1980) 107 Cal.App.3d 802, 806 (Vernon).) The maximum penalty for
violating the rule was demotion. (Id. at p. 807.)
a) Analogy to Overtime
The Association asserts the 2010 revisions to the policy have adversely affected
its members because members’ “outside employment opportunities are restricted.” The
Association implies this restriction is similar to the removal of the opportunity to
perform overtime work.
The loss of the opportunity to perform overtime work affects employees’
workload and compensation and, therefore, that loss has been viewed as an adverse
effect on “wages, hours and other terms and conditions of employment.” (Dublin
21
Professional Fire Fighters, Local 1885 v. Valley Community Services Dist. (1975) 45
Cal.App.3d 116, 119.)
In the instant case, the Association provides no explanation of how the 2010
policy revision has created greater restrictions on outside employment opportunities,
when compared to the prior (2001) version of the outside employment policy, such that
employees have been significantly and adversely affected by the revision in a manner
that would be similar to a loss of overtime opportunities. The Association does not
quote language from the revised policy or cite to the record in any way so as to
demonstrate in what way its members may be significantly and adversely affected. Due
to the lack of record citations and legal analysis, we deem this issue to be abandoned.
(Cal. Rules of Court, rule 8.204(a)(1)(B), (C) [provide argument and record citations];
Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1.)
On our own, we have reviewed the 2001 version of the outside employment
policy and the 2010 revision to that policy. In the 2001 version of the policy, approval
of outside employment could be denied or withdrawn if “[t]he outside employment
requires the employee to work in excess of six (6) hours on a day on which they are
scheduled to work eight (8) hours for the Sheriff’s Department. Employees working
twelve (12) hour shifts are not permitted outside employment on those days they are
scheduled to work for the Sheriff’s Department. A maximum of twenty-four (24) hours
of outside employment per week is allowed.”
In the 2010 version of the policy, the Department reserved the right to deny an
outside employment application if “[t]he outside employment requires the employee to
22
work in excess of six (6) hours on a day on which they are scheduled to work
eight (8) hours or four (4) hours on a day on which they are scheduled to work
ten (10) hours for the Sheriff’s Department. Employees working twelve (12) hour
shifts are not permitted outside employment on those days they are scheduled to work
for the Sheriff’s Department. A maximum of twenty-four (24) hours of outside
employment per week is allowed.”
In the 2001 and 2010 versions of the statute, 24 hours per week of outside
employment was permitted. Thus, there was no change in the total amount of hours an
employee could work outside the Department. As a result, without (1) legal analysis as
to (a) why the Association believes the policy revision significantly and adversely
affected its members, and/or (b) how the policy amendments are analogous to a loss of
overtime opportunities, and/or (2) record citations to provide some direction, we cannot
decipher the Association’s reasoning on this issue. Accordingly, as explained ante, we
must regard the issue as having been abandoned. (Grant-Burton v. Covenant Care, Inc.
(2002) 99 Cal.App.4th 1361, 1379 [“‘[t]here is no duty on this court to search the
record for evidence’”]; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th
691, 699-700 (Landry) [“When an issue is unsupported by pertinent or cognizable legal
argument it may be deemed abandoned”]; In re S.C. (2006) 138 Cal.App.4th 396, 410
[“This is no legal analysis at all. It is simply a conclusion, unsupported by any
explanation”].)
b) Discipline
23
The Association contends the 2010 policy revision had a significant and adverse
effect on the wages, hours, or working conditions of the Association’s members
because the 2010 revision imposed new disciplinary rules in that “the Department can,
for the first time, also take away an employee’s opportunity to earn additional income
through outside employment.”
The Association does not quote language from the 2010 and 2001 versions of the
policies, but does provide a record citation to the 2010 version of the policy. We infer
the Association is referring to the following portion of the 2010 version of the policy:
“Suspension or revocation of a previously approved outside employment permit may be
included as a term or condition of sustained discipline . . . .” The 2001 version of the
policy provided, “Outside employment without Departmental approval subjects the
employee to Departmental discipline.”
The 2010 discipline provision is fundamentally different than the discipline
discussed in the 2001 version of the policy. The 2010 provision allows for approval of
outside employment to be revoked in connection with any disciplinary matter. The
2001 version of the policy provided there may be an unidentified form of discipline for
not following the outside employment policy.
As explained ante, the adoption of a disciplinary rule imposing a maximum
penalty of demotion for personal use of public facilities has been held to constitute a
condition of employment. (Orange County, supra, 217 Cal.App.4th at pp. 40-41;
Vernon, supra, 107 Cal.App.3d at p. 817.) Accordingly, we will assume the
disciplinary rule in the 2010 policy revision is a new condition of employment because
24
it is a disciplinary rule. It must now be determined whether the Association’s members
have been affected in a significant and adverse manner by this new condition.
(Claremont, supra, 39 Cal.4th at p. 631.)
The Association fails to explain (1) how there is an effect on its members, and
(2) if there is an effect, how the effect is significant and adverse. The Association
implies that, per se, a change to a disciplinary rule causes a significant and adverse
effect on employees. Contrary to the Association’s position, the determination of
whether an agency’s action is subject to the meet-and-confer requirements of section
3505 is largely a factual question. (Fire Fighters Union v. City of Vallejo (1974) 12
Cal.3d 608, 620-621.)
Accordingly, it is incumbent on the Association to explain how its members are
affected, and why the effect is both significant and adverse. In the Association’s
appellant’s reply brief it cites to the 2008-2011 MOU. The page cited by the
Association concerns the procedure for arbitration hearings. It then asserts discipline
can include “‘dismissal, demotion, reduction in compensation, [and] suspension.’” The
Association writes, “Also, under the new Policy, the Department can now take away,
through disciplinary action, an employee’s opportunity to earn additional income
through outside employment.”
There is no explanation provided with these facts. It appears the Association is
again arguing that the policy revision constitutes a working condition. However, to the
extent the Association is trying to show there would be a significant and adverse effect
on its members, such a showing has not been made or explained. For example, one
25
could reasonably look at the addition of the provision concerning loss of outside
employment as a benefit to the employees. Instead of the harsher disciplinary actions
of dismissal, demotion, suspension, and reduced pay at the employee’s primary job,
they can now have a lesser form of discipline—loss of a job where they can, at most,
work 24 hours per week. The point being, without analysis, we cannot understand why
or how the Association’s members have been significantly and adversely affected by
the 2010 policy revision.
Due to the lack of argument presented on the point, we deem the issue to be
abandoned. (Landry, supra, 39 Cal.App.4th at pp. 699-700 [“When an issue is
unsupported by pertinent or cognizable legal argument it may be deemed abandoned”].)
c) Miscellaneous
The Association asserts other aspects of the 2010 revisions concerning working
conditions, such as (1) an employee on sick leave not being permitted to work at the
employee’s outside job, and (2) employees have to be rated at “satisfactory” or “meets
standard” levels in order to obtain and retain outside employment.
Again, the Association takes a per se approach and fails to explain the issue.
The Association writes in bold lettering, “‘no discussion is required,’” and concludes
these various items cause the 2010 revisions to be “a ‘term or condition of
employment.’” As the trial court aptly observed in its tentative ruling, the parties “have
made this into an all or nothing position.” The Association’s per se approach to its
argument has caused it not to analyze the issues as required by Claremont. (Claremont,
26
supra, 39 Cal.4th at p. 638 [setting forth the three-part test for determining a particular
matter is subject to a duty to meet and confer].)
Contrary to the Association’s position, a discussion of the facts is required. The
Association needed to prove in the trial court, and explain in this court, why the 2010
revisions constitute terms and conditions of employment, and how the Association’s
members have been significantly and adversely affected by the change. Due to the lack
of analysis and evidentiary support, we deem the issue to be abandoned. (Landry,
supra, 39 Cal.App.4th at pp. 699-700 [“When an issue is unsupported by pertinent or
cognizable legal argument it may be deemed abandoned”].)
d) Conclusion
As explained ante, there is only a duty to meet and confer if the agency’s action
has a significant and adverse effect on the wages, hours, or working conditions of the
employees. (Orange County, supra, 217 Cal.App.4th at p. 40.) We cannot conclude,
based upon the briefing, that the 2010 policy revision had a significant and adverse
effect on the wages, hours, or working conditions of the Association’s members.
Accordingly, there was not a duty to meet and confer.
4. IMPACT AND EFFECTS
As explained ante, “[e]ven if an employer’s action or policy has a significant and
adverse effect on the bargaining unit’s wages, hours, and working conditions, the
employer may be excepted from bargaining requirements under the ‘merits, necessity,
or organization’ language of section 3504.” (Claremont, supra, 39 Cal.4th at p. 631.)
This allows “‘employers to make unconstrained decisions when fundamental
27
management or policy choices are involved.’” (Id. at p. 632.) However, while the
employer/agency is not required to bargain over fundamental management decisions, it
may be required to bargain over the effects of the decision. (Id. at p. 633.) For
example, “‘an employer has the right unilaterally to decide that a layoff is necessary,
[but it] must bargain about such matters as the timing of the layoffs and the number and
identity of employees affected.’” (Id. at p. 634.)
The Association contends that if this court determines the revisions to the policy
were management decisions, then the Department should be required to bargain over
the impact or effects of the revisions. We do not address the merits of this issue
because the first step of the analysis has not been met—a showing that the revisions
affected the Association’s members in a significant and adverse manner. (Claremont,
supra, 39 Cal.4th at p. 631.)
D. SECTION 1126
The Association contends section 1126 (which concerns conflicts of interest
activities by employees of local agencies) is based on section 19990 (which concerns
conflicts of interest activities by state employees), and policies concerning section
19990 activities were determined, in an administrative law case, to be within the “scope
of representation” and, thus, subject to collective bargaining. (Professional Engineers
in California Government v. State of California (Water Resources Control Board)
(1999) PERB Dec. No. 1337-S [1999 Cal. PERB Lexis 39].) Therefore, a policy
concerning section 1126 activities must also fall within the “scope of representation”
28
and be subject to collective bargaining because the parallel laws should be interpreted
in a compatible manner.
Statutory interpretation begins with an examination of the statute’s plain
language. If the plain language is clear—providing an obvious indication of the
Legislature’s intent—then our analysis stops at that point. If the plain language is not
clear, for example, it is susceptible to more than one meaning, then we look to extrinsic
aids to determine the Legislature’s intent, such as legislative history, public policy, the
purpose of the statute, contemporaneous administrative construction, and the overall
statutory scheme of which the statute is a part. (Hoechst Celanese Corp. v. Franchise
Tax Bd. (2001) 25 Cal.4th 508, 519.)
Section 1126, subdivision (c), provides: “The local agency shall adopt rules
governing the application of this section. The 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 such a determination and from its application to an employee. Nothing
in this section is intended to abridge or otherwise restrict the rights of public employees
under Chapter 9.5 (commencing with Section 3201) of Title 1.” The plain language of
subdivision (c) requires that the local agency adopt rules concerning conflicts of
interest, but does not suggest a procedure for how the rules are to be adopted. It does
not include or exclude the adoption of the rules from the collective bargaining process.
Section 1126, subdivision (d), provides: “The application of this section to
determine what outside activities of employees are inconsistent with, incompatible
29
with, or in conflict with their duties as local agency officers or employees may not be
used as part of the determination of compensation in a collective bargaining agreement
with public employees.” The plain language of subdivision (d) reflects conflicts of
interest cannot be determined while simultaneously bargaining over compensation.
The term “compensation” is not given a statutory definition within the laws pertaining
to collective bargaining. (§ 3501.) Our Supreme Court has concluded, “The words
‘salary’ and ‘compensation’ are, in general usage, interchangeable and are synonymous
in most definitions. ‘Compensation’ is ‘[t]he remuneration or wages given to an
employee or, especially, to an officer. Salary, pay, or emolument.” (Treu v. Kirkwood
(1954) 42 Cal.2d 602, 609.)
Given the foregoing rules, the plain meaning of section 1126, subdivision (d), is
that, during collective bargaining, determining what outside activities present a conflict
of interest may not occur simultaneously with determining how much money
employees are paid. For example, an agency could not offer to let employees work as
private security guards (a conflict of interest) in exchange for lesser pay from the
agency. In other words, if an activity has been determined to compromise a conflict of
interest, then that conflict of interest is not open to negotiation in connection with
compensation—conflicts of interest are not for sale.
Given this language in the statute, it appears the Legislature contemplated unions
and agencies possibly bargaining over conflict of interest policies and wanted to limit
the extent of those negotiations. A long held principle of statutory construction is
expressio unius est exclusio alterius, which means “the expression of one thing in a
30
statute ordinarily implies the exclusion of other things.” (In re J.W. (2002) 29 Cal.4th
200, 209.) In other words, if “a statute enumerates things upon which it is to operate it
is to be construed as excluding from its effect all those [things] not expressly
mentioned.” (Shelby v. Southern Pacific Co. (1945) 68 Cal.App.2d 594, 599.)
The Legislature expressly limited collective bargaining from determining
compensation while simultaneously determining what outside activities constitute a
conflict of interest. (§ 1126, subd. (d).) By including this limitation, the Legislature
necessarily left open the opportunity to collectively bargain over other issues related to
outside employment. For example, unions and agencies could negotiate over issues
such as the disciplinary action to be taken against employees who violate the conflict of
interest rules. (See § 1126, subd. (c) [disciplinary rules].)
Based upon the plain language of section 1126, we conclude the Legislature
anticipated that aspects of agencies’ conflict of interest rules could possibly be part of
the collective bargaining process. The statute does not state that conflict of interest
rules necessarily fall within the scope of representation such that there is an affirmative
or mandatory duty to bargain about conflict of interest policies. Rather, the plain
language reflects that, if an agency’s policy should fall within the scope of
representation, such that collective bargaining occurs over the policy, then the
determination of what constitutes a conflict of interest cannot be negotiated in
connection with compensation.
The Association contends that outside employment policies adopted under
section 1126 “are mandatory subjects of bargaining”—this appears to be a per se
31
argument. Contrary to the Association’s position, there is nothing in the plain language
of section 1126 mandating bargaining over any and all outside employment policies.
For example, in the instant case, there is no showing that the policy has created a
significant and adverse effect on employees, so collective bargaining is not required.
The only mention of bargaining in section 1126 is the exclusion of determining
conflicts at the same time as determining pay. That exclusion in no way creates an
affirmative duty to bargain in all situations. Given that there is no language in the
statute indicating an intent to create an affirmative duty to bargain, we reject the
Association’s assertion that policies created under section 1126 per se fall within the
scope of representation and, therefore, are always mandatory subjects of collective
bargaining.
The Association supports its position regarding section 1126 and mandatory
bargaining by arguing section 19990 is a parallel statute, and administrative law cases
have interpreted policies created under section 19990 as falling within the scope of
representation. The Association’s argument is not persuasive because when
interpreting a statute, one need only resort to construction with other statutes and
interpretation by administrative law courts if the plain language of the statute is unclear.
(Hoechst Celanese Corp. v. Franchise Tax Bd., supra, 25 Cal.4th at p. 519.)
The Association fails to address the first step of the analysis—the plain
language. As a result, we do not understand why the Association believes the plain
language of the statute is unclear such that we must move on to the second step and
look at section 19990 and administrative law cases. As explained ante, in our view, the
32
plain language of the statute is clear; therefore, there is no need to consider section
19990 and administrative law cases. The plain language being that there is not an
affirmative or mandatory duty to bargain about conflict of interest policies, but should
such bargaining occur, then the determination of what constitutes a conflict of interest
cannot be negotiated in connection with compensation.
The Department contends section 1126, subdivision (d), exempts outside
employment policies from the collective bargaining process. The Department contends
that parsing out conflicts of interest in connection with compensation during the
collective bargaining process would be absurd. (See Upland Police Officers Assn. v.
City of Upland (2003) 111 Cal.App.4th 1294, 1304 [plain meaning of a statute does not
need to be followed if doing so will lead to absurd results].) The Department asserts
collective bargaining negotiations are complex, and it would be difficult to determine
whether the parties’ negotiations are touching on conflicts of interest related to
compensation.
The Department explains: “For example, in exchange for shorter hours for
[Association] members, the County might seek concessions on the rate of pay, uniforms
and certain terms of the outside employment policy. In this scenario, negotiations
would be diverted into consideration of whether such an exchange was even
permissible.”
The Department’s argument fails because it is misunderstanding section 1126,
subdivision (d). The Department appears to mistakenly believe compensation cannot
be discussed at all in connection with outside employment activities, which we agree
33
would lead to complicated negotiations. However, the plain language of section 1126,
subdivision (d), is not so broad. Section 1126, subdivision (d), indicates compensation
shall not be determined when also determining what activities constitute a conflict of
interest. For example, an agency may not offer to allow employees to serve as private
security guards (a conflict of interest) in exchange for lesser pay from the agency, i.e.,
conflicts of interest are not for sale. There need only be a determination of what
activities constitute conflicts of interest prior to determining compensation. Given the
limited nature of the exclusion, we are confident that skilled negotiators will be able to
perform their collective bargaining duties without much added difficulty.
E. MOU
In the Association’s appellant’s reply brief, it asserts the zipper clause of the
MOU does not permit the Department to make unilateral changes. We infer this is a
response to the Department’s argument, in its respondent’s brief, reflecting the
Association waived—in the MOU—its right to negotiate the policy revisions. To the
extent our inference is incorrect, and the Association is trying to raise a new issue
concerning the MOU in its appellant’s reply brief, we cannot consider that issue. (City
of Corona v. Naulls (2008) 166 Cal.App.4th 418, 425-426.)
DISPOSITION
The judgment is affirmed. Respondents (County of Riverside, Stanley Sniff, the
Board of Supervisors for the County of Riverside, and the Riverside County Sheriff’s
Department) are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
34
MILLER
J.
We concur:
McKINSTER
Acting P. J.
SLOUGH
J.
35