The opinion
Filed 5/15/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
DEPARTMENT OF HUMAN RESOURCES et al., C100353
Plaintiffs and Respondents,
(Super. Ct. No.
v. 34202200327434CUPAGDS)
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County,
Christopher E. Krueger, Judge. Reversed with directions.
Janice R. Shaw, Karly K. McCrory, Suzanne L. Jiminez, Anthony P. Donoghue
and Jennifer Ragan; Benedon & Serlin, Gerald M. Serlin and Judith E. Posner for
Defendant and Appellant.
Frolan R. Aguiling, Sandra L. Lusich, Christopher E. Thomas, David M. Villalba
and Ronald Pearson for Plaintiffs and Respondents.
J. Felix De La Torre, Joseph W. Eckhart, James E. Coffey and Christina M.
Nielsen for Public Employment Relations Board as Amicus Curiae.
Tracylyn Lopez (Lopez), a correctional officer and union representative at Salinas
Valley State Prison (the prison), received a notice of adverse action for directing
1
profanity at two other officers. 1 She later posted materials from the disciplinary action
on a union bulletin board near the main entrance to the prison. The posted materials
revealed the nature of the discipline against Lopez, and the unique surnames of the other
officers.
Department of Corrections and Rehabilitation and Department of Human
Resources (collectively, CDCR) suspended Lopez for 60 workdays for the posting.
Lopez appealed the discipline to the State Personnel Board (SPB), arguing the posting
served as commentary on CDCR’s disciplinary practices, and was thus protected by the
First Amendment. She also filed a contractual grievance alleging the discipline violated
the memorandum of understanding (MOU) between respondent California Correctional
Peace Officers Association (CCPOA) and the State of California, which incorporates the
Ralph C. Dills Act (Gov. Code, § 3512 et seq.; Dills Act) and prohibits retaliation for
engaging in protected activities. 2 CCPOA, which represents correctional officers, sought
arbitration of the grievance on Lopez’s behalf. This appeal arises at the intersection
between these proceedings.
The SPB ruled for CDCR in October 2020. The SPB acknowledged Lopez’s right
to express opinions about disciplinary matters, but found the posting fostered a “code of
silence,” and thus constituted an inexcusable neglect of duty and failure of good behavior
(§ 19572, subds. (d) & (t)), which justified the 60-workday suspension. 3 Whether the
1 Lopez is not a party to this appeal.
2 Undesignated statutory references are to the Government Code.
3 The code of silence is an unwritten rule that correctional officers do not report on
misconduct by other officers. (See generally Madrid v. Gomez (E.D.Cal. 1995) 889
F.Supp. 1146, 1156 [describing the “unwritten but widely understood code” designed to
“encourage prison employees to remain silent regarding the improper behavior of their
fellow employees, particularly where excessive force has been alleged”].)
2
discipline constituted retaliation for engaging in protected activity under the MOU and
Dills Act was not an issue before the SPB. That issue was reserved for the arbitration
proceedings, which took place some 18 months later.
An arbitrator entered an award in favor of Lopez and CCPOA in June 2022. The
arbitrator sustained the grievance, finding CDCR violated the MOU by discriminating
and interfering with protected speech and representational activity. She rejected CDCR’s
argument that Lopez lost any potential protection by promoting an unlawful objective
(i.e., fostering the code of silence). She also found CDCR punished Lopez for the
protected activity, and failed to show it would have imposed the same penalty regardless
of that protected activity. Accordingly, the arbitrator ordered CDCR to rescind the notice
of adverse action for the posting, make Lopez whole by issuing backpay and restoring
any other benefits and rights lost as a result of the 60-workday suspension, and post a
notice at the prison stating CDCR discriminated and interfered with Lopez’s and
CCPOA’s protected union activities under the MOU. In so doing, the arbitrator
effectively offset the 60-workday suspension reviewed and approved by the SPB.
CDCR filed a petition to vacate or correct the arbitration award. (Code Civ. Proc.,
§§ 1285, 1286.2, & 1286.6.) CCPOA responded with a counter petition to confirm the
award. (Code Civ. Proc., § 1285.) The trial court denied CDCR’s petition to vacate the
arbitration award and CCPOA’s counter petition to confirm the award. However, the
trial court granted CDCR’s petition to correct the award and struck the portion ordering
CDCR to rescind the notice of adverse action for the posting and make Lopez whole by
issuing backpay and restoring any other benefits and rights lost as a result of the
suspension.
CCPOA appeals, arguing the trial court erred in granting CDCR’s alternative
petition to correct the award. Specifically, CCPOA argues the trial court erred in
concluding the arbitrator exceeded her powers in entering the award, and thus lacked
statutory authority to correct it. We agree. Accordingly, we will reverse the judgment
3
denying the petition to confirm the arbitrator’s award and granting the petition to correct
the award, and remand with instructions to enter a new judgment confirming the award as
issued by the arbitrator.
I. BACKGROUND
A. The Underlying Disciplinary Disputes
Lopez has worked as a correctional officer at the prison since 2002. She also
serves as a job steward and union representative for CCPOA. As a correctional officer,
Lopez receives regular training on ethics and professionalism, which includes
admonitions against the code of silence.
Lopez had a conversation with two officers in June 2017, in which she described
them as “ ‘assholes’ ” and said “they were on her ‘shit list.’ ” Correctional officers are
expected to refrain from using profanity at the prison. Nevertheless, rough language is
commonly used in conversation between them.
Lopez received a notice of adverse action for discourteous treatment of the other
officers in October 2017. It was unusual for correctional officers to be disciplined for
using profanity, and Lopez believed she was singled out for being an active and
outspoken union job steward. She appealed the notice of adverse action to the SPB, and
the matter was eventually settled with the issuance of a letter of reprimand in January
2018. But that was not the last word on the subject.
On July 13, 2018, Lopez posted excerpts of materials from the disciplinary action
on a CCPOA bulletin board near the main entrance to the prison. The bulletin board was
accessible to inmate workers and Lopez knew the posted materials would be visible to
them. She redacted her first name and highlighted several paragraphs, which included
the unique surnames of the other officers involved in the profanity incident. The
materials remained on the bulletin board for several days.
On July 18, 2018, then-Warden Shawn Hatton asked Lopez to remove the posting
from the bulletin board. Hatton believed the posting was inappropriate because the
4
highlighted materials could be understood to suggest the named officers played some role
in causing Lopez to be disciplined. Lopez removed the posting and Hatton declined to
initiate disciplinary proceedings against her. Hatton retired soon thereafter.
Former Warden Hatton was succeeded by Warden Tammy Foss. Foss learned that
Lopez had not been disciplined for the posting incident and sought permission to file a
direct action without investigation.
Lopez received a notice of adverse action for the posting incident in July 2019.
The notice of adverse action charged Lopez with inexcusable neglect of duty, willful
disobedience, other failure of good behavior, and unlawful retaliation against any other
state officer or employee. 4 (§ 19572, subds. (d), (o), (t), & (x).) CDCR also suspended
Lopez for 60 workdays, effective September 3, 2019. Lopez appealed the notice of
adverse action to the SPB in September 2019.
B. The Grievance
Lopez is a member of State Bargaining Unit 6, which covers state correctional
employees. (Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718, 730.)
Members of State Bargaining Unit 6 are represented by the CCPOA. (Ibid.) The terms
and conditions of their employment are governed by memoranda of understanding
between CCPOA and the State, such as the MOU. 5
Lopez filed a grievance on her own behalf in December 2019. Lopez alleged the
notice of adverse action violated section 5.03 of the MOU, which provides, in part: “(A)
4 CDCR served Lopez with an amended notice of adverse action on August 7, 2019. The
changes are not relevant to any issue before us.
5 There are several such memoranda of understanding; we are concerned with the MOU
effective from July 3, 2019, through July 2, 2020. (Stoetzl v. Department of Human
Resources, supra, 7 Cal.5th at p. 730.)
5
The State and the Union shall not impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or otherwise to interfere with,
restrain or coerce employees because of their exercise of rights guaranteed by the Ralph
C. Dills Act. [¶] (B) The State shall not impose or threaten to impose reprisals on the
Union, to discriminate against the Union, or otherwise to interfere with, restrain, or
coerce the Union because of the exercise of rights guaranteed to it by the Ralph C. Dills
Act. [¶] (C) The requested remedy for alleged violations of this section shall be through
the grievance and arbitration procedure contained in this MOU.”
Section 5.03 of the MOU further provides: “Should the grievance eventuate in
arbitration, the Arbitrator’s decision and award shall be final and binding on all the
parties. The Arbitrator shall have full authority to grant any appropriate remedy,
including, but not limited to, a remedy or award which a [Public Employment Relations
Board (PERB)] Administrative Law Judge could grant.”
CCPOA requested arbitration of the grievance.
C. The Unfair Labor Charge and PERB Complaint
CCPOA filed an unfair practice charge with PERB in January 2020. The unfair
practice charge alleged CDCR retaliated against Lopez for engaging in protected activity
under the Dills Act. PERB thereafter issued an administrative complaint against CDCR,
also alleging violations of the Dills Act. The complaint was placed in abeyance pending
the outcome of the arbitration proceedings.
D. The SPB Proceedings
An evidentiary hearing was held before an administrative law judge (ALJ) for the
SPB in February 2020. CDCR argued Lopez made the posting to retaliate against the
other officers for reporting her use of profanity, thereby promoting the code of silence.
CCPOA, on Lopez’s behalf, argued the posting was intended to alert correctional officers
they could be disciplined for using profanity at work, which was commentary protected
by the First Amendment.
6
The ALJ issued a proposed decision and order in April 2020. The ALJ found
Lopez lacked any retaliatory intent in posting the disciplinary materials, and only meant
to share that she had been disciplined for using profanity. Nevertheless, the ALJ
recognized that CDCR has “a significant interest in eliminating employee speech that
may discourage reporting potential misconduct.” Accordingly, the ALJ rejected CCPOA
and Lopez’s First Amendment defense, and recommended sustaining the charge for
failure of good behavior and reducing the suspension from 60 to 20 workdays.
The SPB rejected the ALJ’s proposed decision in October 2020. The SPB adopted
the ALJ’s factual findings and legal conclusions but reasoned Lopez knew she had a duty
to refrain from conduct that promotes the code of silence, and “certainly knew” that
failing to redact the surnames of the other officers “would reasonably cause others to
view them negatively.” “After all,” the SPB said, “use of profanity whether in jest or
with heated intent is somewhat conventional within the prison setting. Officers who
report on such commonplace transgressions would not necessarily be viewed in the most
positive light. To the contrary, others may reasonably be hesitant to work with these
officers, and some may even harass or ridicule them for being ‘snitches’ or ‘rats.’ ”
According to the SPB, the “likely, if not intended consequence” of revealing the
other officers’ surnames “was to identify them as the officers who were responsible for
reporting [Lopez’s] discourteous comments.” That conduct placed them “in the
unenviable position of losing trust and support from others,” which threatened their
safety “and the overall security of the institution.” Under the circumstances, the SPB
concluded Lopez’s conduct constituted an inexcusable neglect of duty and failure of good
behavior, which justified CDCR’s original penalty of a 60-workday suspension.
7
(§ 19572, subds. (d) & (t).) Accordingly, the SPB reinstated the 60-workday
suspension. 6
E. The Arbitration Proceedings
Arbitration proceedings were held over the course of two days in March 2022.
The arbitrator framed the question presented as whether CDCR violated section 5.03 of
the MOU in actions relating to Lopez. The arbitrator answered that question in the
affirmative, and entered an award in favor of Lopez and CCPOA in June 2022.
The arbitrator reviewed transcripts of the SPB proceedings and determined that
Lopez made the posting to “show other unit members that management was charging
employees with conduct that is common, making unwarranted assumptions, and imposing
excessive penalties that it later agreed to substantially reduce or withdraw.” “Speaking
with other employees about disciplinary actions is protected,” the arbitrator observed.
While acknowledging the SPB’s determination that the posting had “ ‘the likely, if
not intended, consequence’ ” of identifying the other officers, the arbitrator noted the
SPB “did not view the conduct under the analysis of the Dills Act’s protected rights. Its
lens was focused on cause for discipline in a legal framework that excluded consideration
of protected union or concerted activit[ies].” Analyzing the conduct under the Dills Act
framework, the arbitrator concluded the posting was protected activity that was neither
false nor so opprobrious as to lose its protected status.
The arbitrator next considered CDCR’s motive for disciplining Lopez. As before,
CDCR argued it had a legitimate business reason for disciplining Lopez; namely,
6 According to CCPOA’s request for judicial notice, which we hereby grant, Lopez
challenged the SPB’s decision by filing a petition for writ of mandate in Sacramento
Superior Court. (Lopez v. State Personnel Board (Super. Ct., Sacramento County, 2024,
No. 34202180003625CUWMGDS.) The petition was denied and Lopez has appealed the
denial to this court. (Lopez v. State Personnel Board, C101414.)
8
combatting the code of silence. The arbitrator acknowledged CDCR’s duty to combat the
code of silence, but found evidence of retaliatory motive and antiunion animus in emails
from Warden Foss. 7 She also found the charge and penalty “suspiciously high, given the
lack of investigation.” 8
The arbitrator concluded CDCR failed to show the 60-day suspension was issued
in the good faith belief that Lopez made the posting in retaliation against the other
officers, and CDCR would have issued the same suspension regardless of protected
activity. Having so concluded, the arbitrator sustained the grievance and ordered CDCR
to vacate and rescind the notice of adverse action and make Lopez whole by issuing
backpay and restoring any other benefits and rights lost as a result of the suspension. 9
7 In one such email, Foss wrote: “ ‘When [Lopez] received her adverse action she
highlighted the officers’ names and hung it on the CCPOA board . . . . [The prison]
already has the reputation of “green wall” and this is exactly the type of behavior that
adds to that fire and one I am trying very hard to get rid of[.] [¶] She is a union rep,
people listen to her and she harmed her own people.’ ” In another, Foss said: “ ‘[I]f
things are ever going to change at [the prison] the[n] people like Lopez needs [sic] to be
held accountable, she is very powerful here and runs B yard. . . . My pending action is 60
day [sic] suspension. [¶] She is one is [sic] the bad culture of this institution and is a
Union Rep.’ ” In the arbitrator’s view, these emails showed “the animus of Warden Foss
to a powerful Union representative who had criticized and successfully challenged
disciplinary actions.”
8 The arbitrator pointed to the fact that former Warden Hatton chose not to initiate
discipline against Lopez, while Warden Foss, “who was particularly concerned that
[Lopez] was a powerful Union representative, not only assumed without interviewing or
investigating [Lopez] that she was acting in retaliation, but increased the penalty to the
maximum suspension.” In the arbitrator’s view: “The huge discrepancy between the
reactions of the two wardens weighs heavily against the assertion that Foss would have
suspended [Lopez] for 60 days if not motivated in part by [Lopez’s] Union activity.”
9 The arbitrator also ordered CDCR to post a notice at the prison stating it discriminated
and interfered with Lopez and CCPOA’s protected speech and representational activity,
in violation of the MOU, and would cease and desist from disciplining employees in
retaliation for protected activities and interfering with CCPOA’s right to represent its
members. CDCR does not challenge this aspect of the award.
9
F. The Petition and Counter Petition
CDCR filed its petition to vacate or correct the arbitration award in September
2022. The petition alleged the arbitrator exceeded her authority and violated public
policy by issuing an award that interfered with SPB’s constitutional duty to review
disciplinary action. The petition also alleged the award interfered with CDCR’s duty to
combat the code of silence. CCPOA filed its counter petition to confirm the arbitration
award in January 2023.
G. The Trial Court Proceedings
The trial court heard argument on the petition and counter petition in November
2023. During the hearing, the trial court accepted that the SPB and arbitration
proceedings considered different legal issues, and could thus reach different conclusions
as to whether Lopez and CCPOA were entitled to relief. Thus, the SPB could conclude
the posting was cause for discipline under the Civil Service Act, and the arbitrator could
conclude the same discipline interfered with protected activity, in violation of the MOU
and the Dills Act. But the trial court was less certain whether the arbitrator could enter an
award that purported to “vacate,” “veto,” or “rescind” discipline that had been reviewed
and upheld by the SPB.
The trial court determined the arbitrator lacked authority to enter such an award in
an order entered after argument. The trial court reasoned: “Allowing an arbitrator to
reverse disciplinary actions approved by SPB based on collective bargaining laws and/or
MOU provisions would prioritize those labor laws governing state employee conduct
generally when there is nothing in those statutory schemes that indicates such an
intention by the Legislature. It would also undermine the core authority of the SPB.
There is simply no statutory authority in the Dills Act giving an arbitrator such review
authority over SPB decisions.” Accordingly, the trial court denied CDCR’s petition to
10
vacate the arbitration award, denied CCPOA’s counter petition to confirm the award, and
granted CDCR’s petition to correct the award by striking that portion directing CDCR to
vacate or rescind the notice of adverse action against Lopez and make her whole by
issuing backpay and restoring any other benefits and rights lost as a result of the
suspension.
The trial court entered judgment for CDCR in January 2024. This appeal timely
followed.
II. DISCUSSION
A. Applicable Law and Standard of Review
“The scope of judicial review of arbitration awards is extremely narrow.”
(Department of Personnel Administration v. California Correctional Peace Officers
Assn. (2007) 152 Cal.App.4th 1193, 1200.) This is especially true in the context of labor
arbitration. “California has a strong public policy favoring collective bargaining
agreements in the public employment sector [citation], and in reviewing arbitration
awards in the labor-management field, courts are more restricted in their power to vacate
than in other types of arbitration.” (Paramount Unified School Dist. v. Teachers Assn. of
Paramount (1994) 26 Cal.App.4th 1371, 1385; see also Southwest Regional Council of
Carpenters v. Drywall Dynamics, Inc. (9th Cir. 2016) 823 F.3d 524, 530 [“Because of the
centrality of the arbitration process to stable collective bargaining relationships, courts
reviewing labor arbitration awards afford a ‘nearly unparalleled degree of deference’ to
the arbitrator’s decision”].)
Courts are authorized to vacate an arbitration award if it was: “(1) procured by
corruption, fraud, or undue means; (2) issued by a corrupt arbitrator; (3) affected by
prejudicial misconduct on the part of the arbitrator; or (4) in excess of the arbitrator’s
powers.” (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916 (Richey); see Code Civ.
Proc., § 1286.2.) The court may correct (as opposed to vacate) an award where “[t]here
was an evident miscalculation of figures or an evident mistake,” “[t]he arbitrators
11
exceeded their powers but the award may be corrected without affecting the merits of the
decision,” or “[t]he award is imperfect in a matter of form, not affecting the merits of the
controversy.” (Code Civ. Proc., § 1286.6, subds. (a)-(c); see also Richey, supra, at p.
916.)
“Arbitrators may exceed their powers by issuing an award that violates a party’s
unwaivable statutory rights or that contravenes an explicit legislative expression of public
policy.” (Richey, supra, 60 Cal.4th at p. 916; see also Cotchett, Pitre & McCarthy v.
Universal Paragon Corp. (2010) 187 Cal.App.4th 1405, 1416 (Cotchett, Pitre &
McCarthy) [“An arbitrator may exceed her powers within the meaning of [Code Civ.
Proc., § 1286.2] by issuing an award that violates an explicit legislative expression of
public policy”].) “But this is the exception, not the rule: ‘Absent a clear expression of
illegality or public policy undermining this strong presumption in favor of private
arbitration, an arbitral award should ordinarily stand immune from judicial scrutiny.’ ”
(Cotchett, Pitre & McCarthy, supra, at p. 1417, quoting Moncharsh v. Heily & Blasé
(1992) 3 Cal.4th 1, 32; see also City of Palo Alto v. Service Employees Internat. Union
(1999) 77 Cal.App.4th 327, 334 (City of Palo Alto) [“The normal rule of limited judicial
review cannot be avoided except in those rare cases where ‘according finality to the
arbitrator’s decision would be incompatible with the protection of a statutory right’ or
where the award contravenes ‘an explicit legislative expression of public policy’ ”].)
“ ‘Arbitrators do not ordinarily exceed their contractually created powers simply
by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral
awards may not ordinarily be vacated because of such error, for “ ‘[t]he arbitrator’s
resolution of these issues is what the parties bargained for in the arbitration
agreement.’ ” ’ ” (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334,
1360-1361.) So long as an issue is “ ‘within the scope of the controversy submitted to the
arbitrators,’ ” the arbitrator’s resolution to that issue is “ ‘ “what the parties bargained for
in the arbitration agreement.” ’ ” (Alexander v. Blue Cross of California (2001) 88
12
Cal.App.4th 1082, 1089, italics omitted.) Thus, arbitrators do not exceed their powers
when they decide “an issue [they were] clearly authorized to decide.” (Kahn v. Chetcuti
(2002) 101 Cal.App.4th 61, 66.)
“On appeal, we review de novo a trial court’s decision on undisputed facts to
confirm, correct or vacate an arbitration award.” (Taska v. The RealReal, Inc. (2022) 85
Cal.App.5th 1, 9.) We likewise review de novo the question whether an arbitrator’s
award contravenes an unwaivable statutory right or public policy. (Department of
Human Resources v. International Union of Operating Engineers (2020) 58 Cal.App.5th
861, 873 (International Union of Operating Engineers) [“In determining whether an
arbitration award contravenes public policy, we review the trial court’s decision de
novo”]; see also W.R. Grace & Co. v. Rubber Workers (1983) 461 U.S. 757, 766 [“the
question of public policy is ultimately one for resolution by the courts”].) However, we
“pay substantial deference to an arbitrator’s determination of his own authority” (Delaney
v. Dahl (2002) 99 Cal.App.4th 647, 655) and resolve any doubts about the arbitrator’s
power to decide an issue in the arbitrator’s favor (Advanced Micro Devices, Inc. v. Intel
Corp. (1994) 9 Cal.4th 362, 372-373).
B. The Public Policy Exception
CDCR argues the award violates public policy by: (1) interfering with the SPB’s
constitutional authority to review disciplinary actions; and (2) undermining efforts to
combat the code of silence. Do either of the asserted policies require correction of the
award? To answer that question, it helps to take a closer look at the public policy
exception.
As previously discussed, an arbitrator may exceed their powers by issuing an
award that violates a party’s unwaivable statutory rights or that contravenes an explicit
legislative expression of public policy. (Richey, supra, 60 Cal.4th at p. 916.) “Vacating
an arbitration award based on public policy or a statutory right requires an explicit
legislative expression of a public policy violated by the award or a conflict with a
13
statutory scheme. Otherwise, courts are reluctant to invalidate an arbitrator’s award
because ‘the Legislature has already expressed its strong support for private arbitration
and the finality of arbitral awards in title 9 of the Code of Civil Procedure.’ ” (SunLine
Transit Agency v. Amalgamated Transit Union, Local 1277 (2010) 189 Cal.App.4th 292,
303.) “The public policy so contravened must be a ‘well defined and dominant’ public
policy as ‘ascertained “by reference to the laws and legal precedents and not from general
considerations of supposed public interests.” ’ ” (Hochariw v. FJM Private Mortgage
Fund, LLC (2022) 83 Cal.App.5th 893, 899 (Hochariw), quoting W.R. Grace & Co. v.
Rubber Workers, supra, 461 U.S. at p. 766; see also Cotchett, Pitre & McCarthy, supra,
187 Cal.App.4th at p. 1417 [the public policy exception applies where “ ‘a clear
expression of illegality or public policy’ ” undermines the presumption in favor of
arbitration].) A public policy is violated, for example, when arbitration is prohibited by a
statutory public policy (see, e.g., Board of Education v. Round Valley Teachers Assn.
(1996) 13 Cal.4th 269, 287-288 [affirming order granting petition to vacate arbitration
award that conflicted with school district’s statutory rights under the Education Code]),
when an arbitration award would enforce an illegal contract (see, e.g., Jordan v.
Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 453 (Jordan) [affirming
order granting petition to vacate arbitration award that would constitute an
unconstitutional gift of public funds]), or when an arbitration award contravenes an
existing judicial injunction (City of Palo Alto, supra, 77 Cal.App.4th at pp. 339-340
[reversing order confirming arbitrator’s award of unconditional reinstatement where
returning to work would require employee to violate injunction]).
Importantly, the public policy exception requires that the award itself conflict with
an expression of public policy. (See, e.g., City of Palo Alto, supra, 77 Cal.App.4th at pp.
339-340; City of Richmond v. Service Employees Internat. Union, Local 1021 (2010) 189
Cal.App.4th 663, 671 (City of Richmond); SingerLewak LLP v. Gantman (2015) 241
Cal.App.4th 610, 625 (SingerLewak).) City of Palo Alto illustrates this idea. There, an
14
employee of the City of Palo Alto (City) and member of the Service Employees
International Union (Union) was terminated for threatening to shoot one of his
coworkers. (City of Palo Alto, supra, at pp. 331-332.) The City also obtained an
injunction prohibiting the employee from having any contact with his coworker. (Ibid.)
The employee appealed the termination, and the matter was referred to arbitration.
(City of Palo Alto, supra, 77 Cal.App.4th at p. 332.) The arbitrator determined the
termination failed to comply with procedures required by the collective bargaining
agreement between the Union and the City. (Id. at p. 333.) The arbitrator also opined
that the employee’s threats were “ ‘taken out of context,’ ” and questioned the coworker’s
motivations in reporting them. (Id. at p. 332.) The arbitrator ordered the employee
reinstated with backpay, and the City petitioned to vacate the award as violative of public
policy. (Id. at p. 333.) The trial court denied the petition and the Court of Appeal
reversed. (Id. at p. 340.)
On appeal, the City argued the arbitrator’s award violated two public policies.
(City of Palo Alto, supra, 77 Cal.App.4th at pp. 334 & 338.) First, the City argued the
award violated the public policy requiring employers to provide employees with a safe
workplace. (Id. at p. 334.) The Court of Appeal agreed that selected provisions of the
Labor Code and Code of Regulations collectively express “an explicit public policy
requiring employers to take reasonable steps to provide a safe and secure workplace.”
(Id. at pp. 336-337.) However, the City failed to show the public policy entailed “the
obligation to automatically fire any employee who makes a threat of violence regardless
of the employee’s intent in uttering it and the actual risk to workplace safety and
regardless of the procedural guarantees secured by collective bargaining and set forth in a
memorandum of understanding between a union and a city.” (Id. at p. 337.) Put another
way, the City failed to show reinstatement was “necessarily incompatible with the public
policy requiring employers to provide a safe workplace.” (Id. at p. 338.) The court
15
therefore rejected the City’s argument that the arbitrator’s award violated the public
policy requiring employers to provide a safe workplace. (Ibid.)
The City had more success with its second argument: that the arbitrator’s award
would result in a violation of the injunction, which would in turn violate the public policy
requiring obedience to judicial orders. (City of Palo Alto, supra, 77 Cal.App.4th at pp.
338-340.) The Court of Appeal agreed, stating: “We see no way that the arbitrator’s
award reinstating [the employee] could have been put into operation without [the
employee] disobeying the . . . injunction. Thus, the arbitration award of unconditional
reinstatement was irreconcilable with the public policy requiring obedience to court
orders, especially an injunction issued pursuant to Code of Civil Procedure section
527.8.” (Id. at pp. 339-340.)
Other courts have similarly concluded that the award itself must be incompatible
with public policy. (See, e.g., City of Richmond, supra, 189 Cal.App.4th at p. 671 [“The
relevant question, however, is not whether there is a public policy against sexual
harassment generally but whether according finality to the arbitrator’s decision would be
incompatible with that public policy”]; SingerLewak, supra, 241 Cal.App.4th at p. 625
[“even if legally insupportable, the award itself—enforcing a non-compete agreement
among partners—was not against public policy or unauthorized”]; cf. Stead Motors of
Walnut Creek v. Automotive Machinists Lodge No. 1173 (9th Cir. 1989) 886 F.2d 1200,
1215 [“the critical inquiry is not whether the underlying act for which the employee was
disciplined violates public policy, but whether there is a public policy barring
reinstatement of an individual who has committed a wrongful act”].)
From these authorities, we conclude that the public policy exception entails a two-
part analysis. First, we must identify an “explicit,” “clear,” or “well defined and
dominant” expression of public policy. (Richey, supra, 60 Cal.4th at p. 916; Jordan,
supra, 100 Cal.App.4th at p. 452; Hochariw, supra, 83 Cal.App.5th at p. 899.) Second,
we must determine whether the award itself, rather than the underlying acts or conduct,
16
contravenes that policy. (Richey, supra, at p. 916; City of Palo Alto, supra, 77
Cal.App.4th at p. 338; City of Richmond, supra, 189 Cal.App.4th at p. 671.) We tackle
these questions next.
1. The Public Policy Expressed in Article VII, Section 3, Subdivision (a) of the
California Constitution 10
CDCR argues the award violates public policy by interfering with SPB’s
constitutional authority to review disciplinary actions. CCPOA and PERB as amicus
curiae respond that SPB has constitutional authority to review disciplinary actions under
the State Civil Service Act (§ 18570 et seq.) (the Civil Service Act), but PERB has
jurisdiction to determine whether discipline was imposed as retaliation for activities
protected by the Dills Act. As such, they argue PERB could remedy violations of the
Dills Act by ordering the offending party to cease and desist without undermining the
SPB’s authority. (§ 3514.5, subd. (c).) Taking the argument a step further, CCPOA
asserts an arbitrator, authorized by agreement to exercise a PERB ALJ’s remedial
powers, could also remedy violations of the Dills Act by issuing a cease and desist order,
as happened here. 11 (§ 3514.5.)
Neither party squarely addresses the questions, which we deem dispositive,
whether article VII, section 3, subdivision (a)’s instruction to “review disciplinary
actions” constitutes an “explicit,” “clear,” or “well defined and dominant” expression of
public policy, and if so, whether the arbitrator’s award contravenes that policy. (Richey,
supra, 60 Cal.4th at p. 916; City of Palo Alto, supra, 77 Cal.App.4th at p. 338; Jordan,
supra, 100 Cal.App.4th at p. 452; City of Richmond, supra, 189 Cal.App.4th at p. 671;
Hochariw, supra, 83 Cal.App.5th at p. 899.) We conclude the award does not contravene
10 Undesignated article references are to the California Constitution.
11 PERB, for its part, describes the issue as “unsettled.”
17
any explicit, clear or well-defined expression of public policy set forth in article VII,
section 3, subdivision (a). To explain why, we pause again to describe the differing roles
and responsibilities of the SPB and PERB.
a. The SPB and the Merit Principle
The SPB is “a statewide administrative agency which is created by, and derives its
adjudicatory power from, the state Constitution.” (Department of Parks & Recreation v.
State Personnel Bd. (1991) 233 Cal.App.3d 813, 823.) “Article VII of the California
Constitution provides that, generally, the civil service includes ‘every officer and
employee of the State’ (id., art. VII, § 1, subd. (a)) and that permanent appointment and
promotion in the civil service ‘shall be made under a general system based on merit
ascertained by competitive examination’ (id., art. VII, § 1, subd. (b)). This constitutional
mandate, known as the ‘merit principle,’ was adopted by California voters in 1934 in an
effort to eliminate the ‘spoils system’ of political patronage from state employment and
to ensure that ‘appointments and promotions in state service be made solely on the basis
of merit.’ [Citations.] Another constitutional provision, also adopted in 1934, calls for a
nonpartisan personnel board (the SPB) to enforce the civil service statutes (Cal. Const.,
art. VII, §§ 2, 3, subd. (a)) and for an executive officer to administer the statutes under
the SPB’s rules (id., §§ 2, subd. (c), 3, subd. (b)).” (California State Personnel Bd. v.
California State Employees Assn., Local 1000, SEIU, AFL-CIO (2005) 36 Cal.4th 758,
764-765, fn. omitted.)
We are concerned here with article VII, section 3, subdivision (a), which provides:
“The board shall enforce the civil service statutes and, by majority vote of all its
members, shall prescribe probationary periods and classifications, adopt other rules
authorized by statute, and review disciplinary actions.” (Italics added.) Our Supreme
Court has explained that the SPB’s authority to review disciplinary actions is a
“ ‘necessary counterpart’ ” to its power to administer the merit principle. (State
Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512, 526 (State
18
Personnel Bd. v. Department of Personnel Admin.); see also International Union of
Operating Engineers, supra, 58 Cal.App.5th at p. 875 [“the merit principle is implicated
not only in decisions to hire or promote state employees, but also in decisions to impose
discipline”].) Again, CDCR argues the award interferes with the SPB’s constitutional
authority to review disciplinary actions. CDCR does not argue the award offends the
merit principle.
b. PERB and the Dills Act
PERB serves a different purpose. (Pacific Legal Foundation v. Brown (1981) 29
Cal.3d 168, 196-198 (Pacific Legal Foundation). Founded as the Educational
Employment Relations Board in 1975, and renamed two years later, PERB administers
and enforces California’s public sector collective bargaining statutes, including the Dills
Act. (See City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th
597, 603-604; see also Visalia Unified School Dist. v. Public Employment Relations Bd.
(2024) 98 Cal.App.5th 844, 863, fn. 25 (Visalia).) The Dills Act guarantees the
collective bargaining rights of civil service employees by making it unlawful for state
employers to impose reprisals or discriminate against them for exercising rights under the
Act. (§ 3519, subd. (a).) 12
The Dills Act “ ‘vests broad jurisdiction in [PERB] to investigate and act upon
unfair labor charges and alleged violations of the Act.’ ” (California Assn. of
Professional Scientists v. Schwarzenegger (2006) 137 Cal.App.4th 371, 380 (California
Assn. of Professional Scientists).) To this end, section 3514.5, subdivision (c) authorizes
PERB to “issue a decision and order directing an offending party to cease and desist from
12 Section 3519, subdivision (a) provides, in pertinent part: “It shall be unlawful for the
state to do any of the following: [¶] (a) Impose or threaten to impose reprisals on
employees, to discriminate or threaten to discriminate against employees, or otherwise to
interfere with, restrain, or coerce employees because of their exercise of rights guaranteed
by this chapter.”
19
the unfair practice and to take such affirmative action, including, but not limited to, the
reinstatement of employees with or without back pay, as will effectuate the policies of
this chapter.”
The arbitrator appears to have relied on section 3514.5, subdivision (c) in making
the award. CDCR questions the arbitrator’s ability to stand in the shoes of a PERB ALJ
but does not challenge the legality of the MOU. (Cf. California State Personnel Bd. v.
California State Employees Assn., Local 1000, SEIU, AFL-CIO, supra, 36 Cal.4th at pp.
763-764, 772, 775-776 [the Department of Personnel Administration and California State
Employees Association were properly enjoined from implementing collective bargaining
agreements that relied on “post and bid” programs for hiring and promotion, in violation
of the merit principle]; State Personnel Bd. v. Department of Personnel Admin., supra, 37
Cal.4th at pp. 516, 519 [affirming grant of writ petitions prohibiting enforcement of
MOUs that allowed civil service employees to bypass the SPB by pursuing an alternative
grievance/arbitration procedure].) 13
c. The Relationship Between the SPB and PERB
Our Supreme Court considered the relationship between the SPB and PERB in
Pacific Legal Foundation, supra. There, the petitioners, a public law organization and
employee organization, brought mandamus proceedings against the SPB and PERB
(among others), challenging the constitutionality of the State Employer-Employee
Relations Act (SEERA) (Stats. 1977, ch. 1159, § 4), the predecessor to the Dills Act.
(Pacific Legal Foundation, supra, 29 Cal.3d at p. 174.) As relevant here, the petitioners
argued SEERA was unconstitutional on its face because PERB’s jurisdiction to remedy
unfair practices under SEERA conflicted with the SPB’s jurisdiction to “ ‘review
disciplinary actions’ ” under article VII. (Pacific Legal Foundation, supra, at p. 175.)
13 We discuss State Personnel Bd. v. Department of Personnel Admin. at length later in
this opinion.
20
The Pacific Legal Foundation court rejected the petitioners’ facial challenge,
stating, “PERB and the [SPB] are not in competition with each other; rather, each agency
was established to serve a different, but not inconsistent purpose.” (Pacific Legal
Foundation, supra, 29 Cal.3d at p. 197.) The court elaborated: “The [SPB] was granted
jurisdiction to review disciplinary actions of civil service employees in order to protect
civil service employees from politically partisan mistreatment or other arbitrary action
inconsistent with the merit principle embodied in article VII.” (Id. at pp. 197-198.)
“PERB, on the other hand, has been given a somewhat more specialized and more
focused task: to protect both employees and the state employer from violations of the
organizational and collective bargaining rights guaranteed by SEERA. Although
disciplinary actions taken in violation of SEERA would transgress the merit principle as
well, the Legislature evidently thought it important to assign the task of investigating
potential violations of SEERA to an agency which possesses and can further develop
specialized expertise in the labor relations field.” (Id. at p. 198.)
The Pacific Legal Foundation court recognized that PERB’s jurisdiction to
investigate and remedy unfair labor practices might occasionally overlap with the SPB’s
jurisdiction to “review disciplinary actions.” (Pacific Legal Foundation, supra, 29
Cal.3d at p. 197.) In that circumstance, the court said, “familiar rules of construction
counsel our court to attempt to harmonize the disparate procedures, rather than simply to
invalidate one or the other on broad constitutional grounds.” (Ibid.) The court referred to
out-of-state and federal authorities articulating principles for resolving conflicts between
civil service agencies and public employment relations boards, stating “any conflicts
which may arise in this area can be resolved either by administrative accommodation
between the two agencies themselves or, failing that, by sensitive application of evolving
judicial principles.” (Id. at p. 200, fn. omitted, citing Town of Dedham v. Labor Relations
(1974) 365 Mass. 392, 312 N.E.2d 548 (Dedham), City of Hackensack v. Winner (1980)
82 N.J. 1, 410 A.2d 1146 (Hackensack), and City of Albany v. Public Employment
21
Relations Board (1977) 57 A.D.2d 374, 395 N.Y.S.2d 502 (Albany). The court had no
occasion to apply these principles, however, as “no actual jurisdictional conflict” had
been presented. (Pacific Legal Foundation, supra, at p. 200.)
Similar issues arose in State Personnel Bd. v. Fair Employment & Housing Com.
(1985) 39 Cal.3d 422 (Fair Employment & Housing Com.) in which disappointed
applicants for civil service employment filed complaints with the Department of Fair
Employment and Housing (DFEH) and Fair Employment and Housing Commission
(FEHC) claiming they were denied positions with the California Highway Patrol due to
physical disability discrimination. (Id. at p. 426.) The SPB sought an injunction to
prevent the DFEH and FEHC from exercising jurisdiction over the applicants’ claims.
(Ibid.) The trial court enjoined DFEH and FEHC from adjudicating the claims based on
“article VII of our Constitution, which it interpreted as granting to the [SPB] ‘exclusive
jurisdiction’ over all matters involving state civil service employees.” (Id. at p. 427.)
The Fair Employment & Housing Com. court disagreed. (Ibid.)
Reaffirming the reasoning of Pacific Legal Foundation, the court explained: “Just
as the ‘merit principle’ is not infringed upon by the institution of collective bargaining, so
it is unharmed by the watchdog functions of the fair employment agencies. Indeed, the
principle of nondiscrimination reinforces the merit principle. The [Fair Employment and
Housing Act] guarantees that nonmerit factors such as race, sex, physical handicap, and
the like, play no part in the appointment of civil service employees.” (Fair Employment
& Housing Com., supra, 39 Cal.3d at pp. 438-439.) The court thus concluded that the
Legislature could constitutionally establish other agencies, such as those established by
the Fair Employment and Housing Act (§ 12900 et seq.; FEHA), “whose specialized
watchdog functions might involve consideration of matters also within the purview of the
[SPB].” (Id. at p. 439.) Reprising Pacific Legal Foundation, the court said, “ ‘[w]e
should be reluctant to construe article VII, section 3, subdivision (a) in a manner that
would deprive all state civil service employees of the important safeguards afforded by
22
these specialized agencies.’ ” (Ibid., quoting Pacific Legal Foundation, supra, 29 Cal.3d
at p. 199.)
As before, the court recognized that the SPB’s jurisdiction to review disciplinary
actions could potentially lead to conflicts with other agencies. (Fair Employment &
Housing Com., supra, 39 Cal.3d at pp. 437-438 [summarizing Pacific Legal
Foundation’s discussion of PERB and the SPB and noting “the two jurisdictions overlap
in certain areas, such as where a disciplinary action is alleged to have been motivated by
antiunion animus”].) The court clarified that Pacific Legal Foundation considered two
types of potential conflicts: (1) where “an action by another agency actually encroaches
on the merit principle, as where hiring or promotion is determined on the basis of
political partisanship,” and (2) “where two agencies arrive at conflicting adjudications
concerning the same set of facts.” (Id. at p. 442, citing Pacific Legal Foundation, supra,
29 Cal.3d at pp. 185 & 200.) Having determined that administrative enforcement of
FEHA was not inconsistent with the merit principle, the court turned to the second type
of conflict, “where two agencies arrive at conflicting adjudications concerning the same
set of facts.” (Fair Employment & Housing Com., supra, at p. 442.)
Here again, the court suggested that conflicting adjudications could be resolved
through administrative accommodation or judicial determination. (Fair Employment &
Housing Com., supra, 39 Cal.3d at p. 442.) The court explained: “Should the parties be
unable to reach an administrative accommodation, and should the FEHC sustain the
DFEH’s accusation of discrimination, the conflict would have to be resolved ‘by
sensitive application of evolving judicial principles,’ as noted by this court in Pacific
Legal Foundation.” (Ibid.) The court again referred to Dedham, Hackensack, and
Albany as guidance for resolving the problem of conflicting adjudications, but again had
“no occasion to resolve that problem here since no conflicting adjudications are
23
presented.” (Id. at pp. 442-443; see id. at p. 442, fn. 20, citing Dedham, Hackensack, and
Albany.) 14
Pacific Legal Foundation and Fair Employment & Housing Com. support
CCPOA’s position that the SPB has jurisdiction to review disciplinary actions under the
Civil Service Act, while PERB has jurisdiction to determine whether the discipline was
imposed for activities protected by the Dills Act. (Pacific Legal Foundation, supra, 29
Cal.3d at pp. 197-198; Fair Employment & Housing Com., supra, 39 Cal.3d at pp. 438-
439.) That scenario could well result in conflicting adjudications, which may be resolved
through “administrative accommodation” or “sensitive application of evolving judicial
principles.” (Pacific Legal Foundation, supra, at p. 200; Fair Employment & Housing
Com., supra, at p. 442.) Of course, we are faced with a different problem. Unlike Pacific
Legal Foundation and Fair Employment & Housing Com., we are concerned here with
overlapping adjudications between the SPB, on the one hand, and an arbitrator, on the
other. Our Supreme Court has not confronted that exact scenario. However, the court
addressed related issues in State Personnel Bd v. Department of Personnel Admin.
d. State Personnel Bd. v. Department of Personnel Admin.
State Personnel Bd. v. Department of Personnel Admin. concerned MOUs
that allowed civil service employees to challenge disciplinary actions either by seeking
review before the SPB or by filing grievances before an MOU-created agency, which
could then be appealed to an arbitrator. (State Personnel Bd. v. Department of Personnel
Admin., supra, 37 Cal.4th at p. 522.) The question presented was whether the MOUs
“altered review of state civil service disciplinary actions in such a way as to violate
section 3, subdivision (a) of article VII . . . providing that the [SPB] ‘shall . . . review
14 No conflicting adjudications were presented because the FEHC, though prepared to
adjudicate the claims of the disappointed applicants, had not actually done so. (Fair
Employment & Housing Com., supra, 39 Cal.3d at p. 442.)
24
disciplinary actions’?” (Id. at pp. 522-523.) The court concluded they did. (Id. at p.
523.)
The State Personnel Bd. v. Department of Personnel Admin. court began by
distinguishing Pacific Legal Foundation and Fair Employment and Housing Com. (State
Personnel Bd. v. Department of Personnel Admin., supra, 37 Cal.4th at pp. 525-526.) In
those cases, the court said, “the Legislature’s grant of certain functions to an
administrative agency was consistent with advancing the merit principle embodied in
article VII of our state Constitution, and in neither case did the statutory scheme
undermine or compromise the [SPB]’s jurisdiction to ‘review disciplinary actions’
[citation] against state civil service employees.” (Id. at p. 525.) Here, by contrast, the
MOUs allowed state employees to bypass the SPB in favor of another
grievance/arbitration procedure, thereby supplanting the SPB. (Id. at p. 526.) The court
explained: “[W]hen a state civil service employee is removed from employment, the
interest of the [SPB] in ensuring that the disciplinary action does not violate the merit
principle is just as great as when an employee is selected for state civil service
employment. And discipline other than removal from civil service also implicates the
merit principle because disciplinary actions in general can have a profound effect on an
employee’s chance of future advancement within the merit-based civil service.” (Ibid.)
The court continued: “It would be inimical to California’s constitutionally
mandated merit-based system of civil service, which is administered by the [SPB], to
wholly divest that board of authority to review employee disciplinary actions in favor of
an MOU-created review board. This is so because a state civil service based on the merit
principle can be achieved only by developing and consistently applying uniform
standards for employee hiring, promotion, and discipline. By vesting in the nonpartisan
[SPB] the sole authority to administer the state civil service system (. . . art. VII, § 3), our
state Constitution recognizes that this task must be entrusted to a single agency, the
constitutionally created [SPB]. Because employee discipline is an integral part of the
25
civil service system, the [SPB]’s exclusive authority to review disciplinary decisions is a
critical component of the civil service system.” (State Personnel Bd. v. Department of
Personnel Admin., supra, 37 Cal.4th at pp. 526-527.)
The Department of Personnel Administration argued the MOUs did not implicate
the merit principle, because an employee who opts for review by an MOU-created agency
would merely waive the right to seek review before the SPB. (State Personnel Bd. v.
Department of Personnel Admin., supra, 37 Cal.4th at p. 527.) The court rejected this
argument, noting the merit principle serves the general public, and “the public in general
has a strong interest in ensuring that partisanship plays no role in selection and
advancement within the state civil service.” (Ibid.) The court elaborated: “That public
interest would be subverted if various ad hoc arbitral boards, operating beyond the
control of the [SPB] and not bound to apply its merit-based standards, could review and
reverse disciplinary actions taken against state civil service employees. As we have
explained, the public interest in a merit-based civil service is best served by recognizing
that the [SPB]’s authority to review employee discipline is exclusive.” (Ibid.) The court
therefore concluded that MOU provisions allowing disciplined employees to bypass
review by the SPB in favor of an MOU-created agency would offend the merit principle.
(Ibid.)
CDCR places heavy reliance on State Personnel Bd. v. Department of Personnel
Admin. Specifically, CDCR argues the award allowed CCPOA and Lopez to “bypass”
the SPB’s decision, and emphasizes the high court’s admonition that the merit principle
“would be subverted if various ad hoc arbitral boards . . . could review and reverse
disciplinary actions taken against state civil service employees.” (State Personnel Bd. v.
Department of Personnel Admin., supra, 37 Cal.4th at p. 527.) We acknowledge that
State Personnel Bd. v. Department of Personnel Admin. presents parallels with our case,
and the court’s admonition appears at first blush to support judicial review of the
26
arbitrator’s award. Looking more closely, however, we find State Personnel Bd. v.
Department of Personnel Admin. distinguishable.
For one thing, the MOUs in State Personnel Bd. v. Department of Personnel
Admin. were challenged by way of petitions for writ of mandate and peremptory writ.
(State Personnel Bd. v. Department of Personnel Admin., supra, 37 Cal.4th at p. 519.)
Those petitions placed directly at issue “whether the MOU[]s and their implementing
legislation violate the state Constitution.” (Id. at p. 523.) Here, of course, we are only
charged with deciding whether the arbitrator exceeded their powers by entering an award
that contravenes an explicit expression of public policy. These are very different
inquiries.
State Personnel Bd. v. Department of Personnel Admin. is also distinguishable on
the facts. Unlike the MOUs at issue in State Personnel Bd. v. Department of Personnel
Admin., the MOU here does not give civil service employees the option to “bypass” the
SPB in favor of an MOU-created agency or procedure. (State Personnel Bd. v.
Department of Personnel Admin., supra, 37 Cal.4th at pp. 516-520.) CCPOA and Lopez
were not free to choose either arbitration or the SPB. To the contrary, they were obliged
to challenge the cause for the discipline under the Civil Service Act in the SPB
proceedings, and the retaliatory or discriminatory nature of the discipline under the MOU
and the Dills Act in arbitration. (Compare State Personnel Bd. v. Department of
Personnel Admin., supra, at p. 527 [“Because employee discipline is an integral part of
the civil service system, the [SPB’s] exclusive authority to review disciplinary decisions
is a critical component of the civil service system”] and Skelly v. State Personnel Board
(1975) 15 Cal.3d 194, 201 [“The [SPB] is the administrative body charged with the
enforcement of the Civil Service Act, including the review of punitive action taken
against employees”]; with § 3514.5 [“The initial determination as to whether the charges
of unfair practices are justified, and, if so, what remedy is necessary to effectuate the
purposes of this chapter, shall be a matter within the exclusive jurisdiction of [PERB]”];
27
California Assn. of Professional Scientists, supra, 137 Cal.App.4th at p. 381 [“ ‘The
assignment of exclusive initial jurisdiction in section 3514.5 to [PERB] means that the
only forum to pursue a cause of action for violation of the statutory rights conferred in the
Dills Act is before [PERB]’ ”]; see also § 3514.5, subd. (a) [grievances may be submitted
to binding arbitration].) And that is precisely what happened.
Lopez appeared before the SPB, and the SPB reviewed the disciplinary action
against her, consistent with its constitutional duty. CCPOA then presented claims for
violations of the MOU and the Dills Act to the arbitrator, consistent with the MOU. This
simply is not a case in which the SPB was “bypassed,” at least, not in the sense the State
Personnel Bd. v. Department of Personnel Admin. court used that word. Neither is it a
case in which an arbitrator “review[ed] and reverse[d] disciplinary action[]” against a
state civil service employee, as the State Personnel Bd. v. Department of Personnel
Admin. court forewarned. (State Personnel Bd. v. Department of Personnel Admin.,
supra, 37 Cal.4th at p. 527.) Because the SPB reviewed the disciplinary action for cause
under the Civil Service Act, and the arbitrator considered the discipline for violations of
the MOU and the Dills Act, it is more accurate to say the award offset the suspension.
The problem, as we understand it, is not that the MOU allows civil service
employees to bypass or reverse the SPB. The problem instead appears to be that the SPB
exercised constitutional authority to review the 60-workday suspension under the Civil
Service Act, and the arbitrator exercised remedial power under the MOU to enter an
award offsetting that same suspension. These results are not necessarily inconsistent with
California law. After all, there could be just cause for discipline under the Civil Service
Act, and retaliatory motive for that same discipline under the Dills Act. (See, e.g.,
Visalia, supra, 98 Cal.App.5th at p. 863, fn. 24 [“The fact sufficient cause existed for
discipline does not mean there was no unlawful retaliation. Other circumstances may
prove a retaliatory motive notwithstanding sufficient cause for discipline”].) No one
denies these things can legally coexist. Nevertheless, they stand in some tension with one
28
another. That tension specifically arises from the overlapping adjudications of the SPB
and the arbitrator. Who should have the last word as to whether Lopez serves the 60-
workday suspension? The SPB, by virtue of its constitutional authority? The arbitrator,
by virtue of the MOU? PERB, by virtue of its jurisdiction to adjudicate violations of the
Dills Act? The parties and amicus propose various answers, but we do not need to
resolve these questions, at least not today.
Today’s questions, again, are whether the SPB’s constitutional duty to “review
disciplinary actions” constitutes an “explicit,” “clear,” or “well defined and dominant”
expression of public policy, and whether the award contravenes that policy. (Richey,
supra, 60 Cal.4th at p. 916; City of Palo Alto, supra, 77 Cal.App.4th at p. 338; Jordan,
supra, 100 Cal.App.4th at p. 452; City of Richmond, supra, 189 Cal.App.4th at p. 671;
Hochariw, supra, 83 Cal.App.5th at p. 899.) Answering these questions is easier said
than done, because CDCR is cagey about how, exactly, the award allegedly violated
article VII, section 3, subdivision (a). Even allowing for various possibilities, however,
we find ourselves unable to say “yes” to both questions, as we next explain.
e. Whether the Award Contravenes an Expression of Public Policy
Embodied in Article IV, Section 3, Subdivision (a)
CDCR primarily argues the award offends article VII, section 3, subdivision (a)’s
imperative that the SPB “review disciplinary actions.” We have no trouble accepting that
the constitutional mandate to “review disciplinary actions” constitutes an “explicit,”
“clear,” or “well defined and dominant” expression of public policy. (Richey, supra, 60
Cal.4th at p. 916; Jordan, supra, 100 Cal.App.4th at p. 452; Hochariw, supra, 83
Cal.App.5th at p. 899.) But CDCR does not argue the award violates that policy as
expressed. Nor does CDCR seem able to do so. Again, the SPB reviewed the
disciplinary action under the Civil Service Act, consistent with article VII, section 3,
subdivision (a). That the arbitrator also reviewed the discipline for violations of the
MOU and the Dills Act does not mean the SPB was prevented from reviewing the
29
disciplinary action under the Civil Service Act. The arbitrator’s award may have
overlapped with the SPB’s exercise of authority, but overlapping adjudications are not
uncommon in our system of administrative law (see e.g., Pacific Lumber Co. v. State
Water Resources Control Bd. (2006) 37 Cal.4th 921, 937) and we perceive no inherent
conflict between the SPB’s determination that the 60-workday suspension was “just and
proper” under the Civil Service Act, and the arbitrator’s determination that CDCR
interfered with protected speech and representational activity in violation of the MOU
and the Dills Act, such that the suspension should be set aside. These results are not
“necessarily incompatible,” in the sense that enforcing one would require violating the
other. (Cf. City of Palo Alto, supra, 77 Cal.App.4th at pp. 338, 339-340.)
CDCR also refers to the merit principle. The merit principle has been described as
“inviolate” (Pacific Legal Foundation, supra, 29 Cal.3d at p. 194), and could reasonably
be characterized as an “explicit,” “clear,” or “well defined and dominant” expression of
public policy. (Richey, supra, 60 Cal.4th at p. 916; Jordan, supra, 100 Cal.App.4th at p.
452; Hochariw, supra, 83 Cal.App.5th at p. 899; see also International Union of
Operating Engineers, supra, 58 Cal.App.5th at p. 873 [suggesting the merit principle
amounts to a well-defined public policy].) 15 But CDCR does not argue the award
15 International Union of Operating Engineers though procedurally analogous to the
present case, is distinguishable on the facts. There, the subject MOU gave civil service
employees the right to request that “ ‘materials of a negative nature’ ” be purged from
their personnel files after one year. (International Union of Operating Engineers, supra,
58 Cal.App.5th at p. 865.) An arbitrator determined the Department of Water Resources
violated the MOU by using purged documents to support disciplinary action against an
employee and directed the Department of Human Resources to cease and desist from
further violations. (Ibid.) The Department of Human Resources and the Department of
Water Resources filed a petition to vacate or correct the award under Code of Civil
Procedure section 1285. (International Union of Operating Engineers, supra, at p. 865.)
The trial court denied the petition and the Court of Appeal reversed. (Id. at p. 866.)
30
violates the merit principle either, presumably for good reason. (See generally California
Correctional Peace Officers Assn. v. Department of Corrections & Rehabilitation (2017)
15 Cal.App.5th 97, 106-107 (California Correctional Peace Officers) [“Not every grant
of certain functions relating to employment of civil service employees to an
administrative agency other than the SPB violates the merit principle”]; see also Fair
Housing & Employment Com., supra, 39 Cal.3d at pp. 438-439 [“Just as the ‘merit
principle’ is not infringed upon by the institution of collective bargaining, so it is
unharmed by the watchdog functions of the fair employment agencies”].)
Last but not least, CDCR argues the award violates public policy by failing to
“harmonize” or “accommodate” the SPB’s findings, as supposedly required by Pacific
Legal Foundation. As previously discussed, Pacific Legal Foundation and Fair
Employment & Housing Com. each anticipated the problem of conflicting adjudications
between agencies, and counseled that they be resolved “either by administrative
accommodation between the two agencies themselves or, failing that, by sensitive
application of evolving judicial principles.” (Pacific Legal Foundation, supra, 29 Cal.3d
at p. 200, fn. omitted; Fair Employment & Housing Com., supra, 39 Cal.3d at p. 442, fn.
20.) But that guidance, though instructive, does not constitute an “explicit,” “clear,” or
“well defined and dominant” expression of public policy. (Richey, supra, 60 Cal.4th at p.
916; Jordan, supra, 100 Cal.App.4th at p. 452; Hochariw, supra, 83 Cal.App.5th at p.
On appeal, the Department of Human Resources and the Department of Water
Resources argued the award undermined the merit principle by requiring civil service
employers to purge negative material from employee’s personnel files, interfering with
their ability to make “reasonable and sound employment decisions based on merit.”
(International Union of Operating Engineers, supra, 58 Cal.App.5th at p. 877.) The
Court of Appeal agreed. (Id. at pp. 877-878.)
Here, as we have said, CDCR does not argue the award violates the merit principle.
Consequently, we have no need to consider International Union of Operating Engineers
further.
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899.) Even assuming an arbitrator could achieve an administrative accommodation with
an agency, we are not directed to any established standard for resolving their interests,
and we are hard-pressed to say that the high court’s support for comity constitutes an
explicit expression of public policy. The same can be said for the “sensitive application
of evolving judicial principles.” (Pacific Legal Foundation, supra, at p. 200; Fair
Employment & Housing Com., supra, at p. 442.) Here again, our high court’s guidance,
though helpful, is hardly an “explicit,” “clear,” or “well defined and dominant”
expression of public policy. (Richey, supra, at p. 916; Jordan, supra, at p. 452;
Hochariw, supra, at p. 899.)
When all is said and done, we conclude article VII, section 3, subdivision (a)
constitutes an explicit expression of public policy that the SPB must be allowed to review
disciplinary actions for violations of the Civil Service Act, but the award itself does not
violate that policy. We further conclude that, though the award might run counter to the
goals of administrative accommodation and sensitive application of evolving judicial
principles, neither of these are explicit expressions of public policy. Accordingly, we
conclude the public policy exception is inapplicable, at least so far as article VII, section
3, subdivision (a) is concerned. That leaves CDCR’s arguments concerning the need to
combat the code of silence.
2. Public Policy Geared Towards Combatting the Code of Silence
CDCR argues the judgment should be affirmed on the alternative ground that the
arbitrator’s award violates public policy by undermining efforts to combat the code of
silence. 16 CDCR finds support for the existence of an “explicit, well defined public
policy aimed at combatting the [c]ode of [s]ilence” in various legislative history materials
16 CDCR expends considerable energy decrying the code of silence and expounding on
the need to eradicate it. We have no quarrel with any of these arguments, but they are not
relevant to whether the public policy exception applies.
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and CDCR’s “Department Operations Manual.” We question whether any of these things
constitute “an explicit legislative expression of public policy,” as required by the public
policy exception. (Richey, supra, 60 Cal.4th at p. 916.) But even assuming they do, the
award itself does not violate any such policy.
As previously discussed, the public policy exception requires that the award itself
conflict with an expression of public policy. (See, e.g., City of Palo Alto, supra, 77
Cal.App.4th at pp. 339-340; City of Richmond, supra, 189 Cal.App.4th at p. 671;
SingerLewak, supra, 241 Cal.App.4th at p. 625.) Thus, the question presented is not
whether Lopez violated public policy by fostering the code of silence, but whether public
policy requires that correctional officers found to have engaged in such conduct be
suspended, such that the award violates that policy. (City of Palo Alto, supra, at p. 337
[rejecting argument that arbitrator’s award violated public policy against workplace
violence, where there was no indication “the public policy entails the obligation to
automatically fire any employee” who engages in such misconduct]; City of Richmond,
supra, at p. 671 [“The relevant question . . . is not whether there is a public policy against
sexual harassment generally but whether according finality to the arbitrator’s decision
would be incompatible with that public policy”].)
CDCR has not established that the asserted public policy against the code of
silence requires any particular term of suspension, such that the arbitrator’s offsetting
award violated that policy. Consequently, we conclude the judgment cannot be affirmed
on the alternative ground that the arbitrator’s award violates an expression of public
policy geared towards combatting the code of silence.
III. DISPOSITION
The judgment denying the petition to confirm the arbitrator’s award and granting
the petition to correct the award is reversed, and the matter remanded with instructions to
enter a new judgment confirming the award in its entirety, without correction. Appellant
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California Correctional Peace Officers Association shall recover its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/
RENNER, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
WISEMAN, J. *
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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