The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 91-102
of :
: MAY 8, 1991
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. DA VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
The DEPUTY SHERIFF'S ASSOCIATION OF SAN DIEGO COUNTY, a
recognized employee organization as defined in the Meyers-Milias-Brown Act, has requested this
office to grant leave to sue the COUNTY OF SAN DIEGO in quo warranto pursuant to section 803
of the California Code of Civil Procedure. Relator contends that section 606 of the San Diego
County Charter is invalid and void, and that defendant, acting under color thereof, has usurped,
intruded into, and unlawfully held and exercised powers not belonging to it.
CONCLUSION
It is concluded that leave to sue should be DENIED.
CRITERIA FOR QUO WARRANTO
Quo warranto is an appropriate remedy by which to challenge the validity of a city
or county charter. (The People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984)
36 Cal.3d 591, 595; County of Santa Clara v. Hayes Co. (1954) 43 Cal.2d 615, 618; International
Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 694; Oakland Mun. Imp.
League v. City of Oakland (1972) 23 Cal.App.3d 165, 169.)
In deciding whether to grant leave to sue in the name of the People of this state, we
consider the following fundamental precepts which provide the basis for this analysis: leave will be
granted where there is a substantial question of law or fact which requires judicial resolution, and
where the action in quo warranto would serve the overall public interest of the People of this state.
(72 Ops.Cal.Atty.Gen. 15, 19 (1989).)
MATERIAL FACTS
On August 1, 1990, defendant Board of Supervisors approved for submission to the
voters a proposed charter amendment ("proposition A") providing for the creation, by ordinance, of
a Citizens Law Enforcement Review Board ("CLERB"). Essentially, CLERB would be authorized
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to investigate, report, and recommend action to be taken in connection with complaints of official
misconduct in the Sheriff's Department.
On December 6, 1990, proposition A was adopted by the voters, and on December
15, 1990, was filed with the Secretary of State.
Relator Deputy Sheriff's Association alleges and defendant denies that relator was
not granted an opportunity to meet and confer with defendant respecting the creation of CLERB
prior to the submission of proposition A to the electorate for approval.
ISSUES OF FACT OR LAW
Relator contends that the decision to submit proposition A to the voters was subject
to the right to meet and confer pursuant to the Meyers-Milias-Brown Act ("Act") (Government Code
sections 3500-3510).1
The Act provides that both the public employer and the recognized employee
organization have a mutual obligation to meet and confer on request by either party and to endeavor
to reach agreement on matters within the scope of representation. Specifically, section 3505
provides:
"The governing body of a public agency, or such boards, commissions,
administrative officers or other representatives as may be properly designated by law
or by such governing body, shall meet and confer in good faith regarding wages,
hours, and other terms and conditions of employment with representatives of such
recognized employee organizations, as defined in subdivision (b) of Section 3501,
and shall consider fully such presentations as are made by the employee organization
on behalf of its members prior to arriving at a determination of policy or course of
action.
"`Meet and confer in good faith' means that a public agency, or such
representatives as it may designate, and representatives of recognized employee
organizations, shall have the mutual obligation personally to meet and confer
promptly upon request by either party and continue for a reasonable period of time
in order to exchange freely information, opinions, and proposals, and to endeavor to
reach agreement on matters with the scope of representation prior to the adoption by
the public agency of its final budget for the ensuing year. . ." (Emphasis added.)
Section 3504 defines the scope of representation:
"The scope of representation shall 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."
(Emphasis added.)
The duty to meet and confer in good faith is confined to matters within the scope of
representation. (Internat. Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d
1
All section references are to the Government Code unless otherwise specified.
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959, 966; § 3405, supra.) In the latter section, the exclusion from the scope of representation of
considerations respecting the "merits, necessity, or organization of any service or activity provided
by law" is similar to the "fundamental management decisions" exclusion recognized in federal cases
construing federal labor statutes. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 616;
Bldg. Material & Const. Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 658.)
Unlike its federal counterpart, the exclusion under the state Act was expressly
incorporated by amendatory legislation. (Stats. 1968, ch. 1390, § 4.) Its purpose was not to restrict
bargaining on matters directly affecting employees' legitimate interests in "wages, hours and
working conditions", but rather to forestall any expansion of that phrase to include more general
managerial policy decisions. (People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach,
supra, 36 Cal.3d at 602; Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d at 616.)
Even assuming, therefore, that the decision to create CLERB "primarily involves"
(Fire Fighters Union v. City of Vallejo, supra, 616-617) or has a "significant or material
relationship" (Westinghouse Electric Corp. v. NLRB (4th Cir. 1967) 387 F.2d 542, 548; San Jose
Police Officer's Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, 945) to wages, hours, or
conditions of employment, the issue remains whether the decision involves the "merits, necessity,
or organization of any service or activity provided by law" within the meaning of section 3504 as
to be excluded from the scope of representation.
It is noted initially that the board of supervisors of a county is responsible for the
supervision of official conduct of county officers, including the sheriff. (§ 25303.) CLERB may
be viewed as a mode or organization by which this duty or activity provided by law may be executed
or assisted. It is apparent, in any event, that the establishment of the organization concerns a matter
of police community relations.
In Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, the court held
that certain policies adopted by the city fell within the management exception. These policies
permitted a member of the citizen's review commission to attend police department board of review
hearings concerning citizen complaints against police, and required attendance by a member of the
police department at commission trial board meetings to respond to inquiries by the commission
concerning the department's position on individual complaints. The court considered these policies
as "concerning a matter of police community relations" which "clearly constitute management level
decisions which are not properly within the scope of union representation and collective bargaining."
(Id., 937.) In Bldg. Material & Const. Teamsters' Union v. Farrell, supra, 664, the court observed
that decisions involving the betterment of police community relations so affect the quality and nature
of public services that the "burden of requiring an employer to confer about such fundamental
decisions clearly outweighs the benefits to employer-employee relations that bargaining would
provide."
It is our view that the determination to submit to the voters whether to adopt a
citizen's review commission is a more fundamental management prerogative than is the selection
of procedures for hearings before such a board. Since the adoption of the latter has been held to be
exempted from the Act, a fortiori the former would be held to be exempt from the obligation to meet
and confer under the Act.
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Having determined that there is no substantial question of law or fact which requires
judicial resolution, we need not inquire whether granting leave to sue would serve the public
interest.2 Leave to sue is denied.
*****
2
We note that litigation is proceeding between relator and defendant regarding whether the impact
and effect of the ordinance is subject to the right to meet and confer pursuant to the Act. That is,
of course, a distinct and different issue from the one before us. (Fire Fighters Union v. City of
Vallejo, supra, 12 Cal.3d at pp. 621-622; NLRB v. Transmarine Navigation Corp. (9th Cir. 1967)
380 F.2d 933, 939.)
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