# Petition — City of Glendale v. Glendale City Employees Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1516%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 424 U.S. 943 ## Text ~~ OF THE UNITED October Term, 1975 CITY OF GLENDALE, Petitioner, vs. GLENDALE CITY EMPLOYEES ASSOCIATION, INC., DAVID NORTH, ROSS D. MITCHELL, E. JIM KOTONIAS, BOB MEZAK, BOB ARCHAMBEAU, AND WILLIAM J. EVANS, JR., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA RICHARD W. MARSTON, City Attorney DENNIS H. SCHUCK, Deputy City Attorney Counsel for Petitioners 613 East Broadway Room 220 City Hall Glendale, California 91205 (213) 956-2080 IN ‘THE SUPREME COURT OF THE UNITED STATES October Term, 1975 CITY OF GLENDALE, Petitioner, vs. GLENDALE CITY EMPLOYEES ASSOCIATION, INC., DAVID NORTH, ROSS D. MITCHELL, &. JIM KOTONIAS, BOB MEZAK, BOB ARCHAMBEAU, AND WILLIAM J. EVANS, JR., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA RICHARD W. MARSTON, City Attorney DENNIS H. SCHUCK, Deputy City Attorney Counsel for Petitioners 613 East Broadway Room 220 City Hall Glendale, California 91205 (213) 956-2080 TOPICAL INDEX Table of Authorities INTRODUCTION OPINIONS BELOW JURISDICTION QUESTIONS PRESENTED CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED STATEMENT OF THE CASE TRIAL COURT ACTION COURT OF APPEAL CALIFORNIA SUPREME COURT REASONS FOR ALLOWANCE OF THE WRIT CONCLUSION APPENDICES 12 31 TABLE OF AUTHORITIES Cases Bell v. Hood (D.C, 1947) 71 F.Supp. 813 Calif. State Employees' Assn. v. State (1973) 32 Cal. App. 3d 103, 108 Cal. Rptr. 60 City Council of City of Santa Barbara v. Superior Court (1960) 179 Cal. App.2d 389, 3 Cal. Rptr. 796 In re Shear (D.C. Cal. 1956) 139 F.Supp. 217 Johanson v. City Council of City of Santa Cruz (1963) 222 Cal. App. 2d 68, 34 Cal. Rptr. 798 Kelley v. Aarons (D.C, Cal. 1917). 238 F. 996 Kelly v. Gill, 38 S.Ct. 38, 245 U.S. 116, 62 L.Ed. 185 ii. Page 13 22 21 29 13 29 29 Kobilkin v. Pillsbury (C.C.A. Cal. 1939) 103 F.2d 667, cert. granted 60 S.Ct. 97, 308 U.S. 530, 84 L.Ed. , affirmed 60S.Ct. 465, rehearing denied 60 S.Ct. 584 Martin v. County of Contra Costa (1970) 8 Cal. App. 3d 856, 87 Cal. Rptr. 886 Monarch Cablevision v. City Council, City of Pacific Grove (1966) 239 Cal. App. 2d 206, 48 Cal. Rptr. 550 Nev-Cal Elect. Securities Co. v. Imperial Irr. District (C.C.A. Cal. 1936) 85 F.2d 886, cert. den. 575S.Ct. 493, 300 U.S. 662, 81 L.Ed. 871 Redding v. City of Los Angeles (1947) 81 Cal. App. 2d 888, 185 p.2d 430, cert. denied 68 S.Ct. 1338, 334 U.S. 825, 92 L.Ed. 1754, rehearing denied 68 S.Ct. 1511, 334 U.S. 854, 92 L.Ed. 1776 Rupp v. Teets (1957) 48 Cal. 2d 647, 312 P.2d 5, cert. granted 78 S.Ct. 91, 355 U.S. 854, 2 L. Ed. 2d 62, affirmed 78 S.Ct. 1263, 357 U.S. 949, 2 L.Ed. 2d 1531, rehearing denied 79 S.Ct. 13, 358 U.S. 858, 3 L.Ed. 2d 92 iii. 29 13 21 29 12 13 San Francisco Shopping News Co. v. City of South San Francisco (C.C.A,. Cal. 1934) 69 F.2d 879, cert. den. 595 S.Ct. 122, 293 U.S. 606, 79 L.Ed. 697 Sladovich v. Fresno County (1958) 158 Cal. App. 2d 230, 322 P.2d 565 Tandy v. City of Oakland (1962) 208 Cai. App. 2d 609, 25 Cal. Rptr. 429 U. S. v. Mock (D,C, Cal. 1956) 143 F.Supp. 661 Western Union Tel. Co. v. Myatt (1899) 98 F. 335 Constitutions and Charters Californie Constitution, Article I, Section 1 Article I, Section 15 Article III, Section 3 Article XI, Section 3(a) Article XI, Section 5(a) iv. 29 21 13 29 29 Article XI, Section 5(b) Article XVI, Section 18 5, 18, U.S. Constitution, Amendment V 5, Amendment X Amendment XIV, Section 1 5, Article I, Section 1 Do, Article III, Section 1 o, Glendale City Charter, Article IV, Section 3 6, 13, 14, Article VI, Section 6 6, Article XI, Section 1 6, Article XI, Section 3 6, Article XI, Section 4 6, 14, Article XXIII, Section 13 6, Article XXIII, Section 27 6, 28 19 Ordinances and Statutes Glendale Ordinance No. 3921 6, 9, No. 3936 6, 9, 15, California Civil Code, Section 1644 3D, Section 1546 Do, Section 1647 Do, California Government Code, Section 3500 Meyers-Milias-Brown Act 5, 6, 28 USC Section 1257(3) vi. 15 21 24 24 25 23 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1975 CITY OF GLENDALE, Petitioner, vs. GLENDALE CITY EMPLOYEES ASSOCIATION, INC., DAVID NORTH, ROSS D. MITCHELL, E. JIM KOTONIAS, BOB MEZAK, BOB ARCHAMBEAU, and WILLIAM J. EVANS, JR., Respondents. PETITION FOR WRIT OF CERTIORARI INTRODUCTION Petitioner City of Glendale respectfully prays that a Writ of Certiorari issue to review the judgment and opinion of the California Supreme Court entered in this proceeding on October 3, 1975. OPINIONS BELOW On July 9, 1971, the Superior Court for the County of Los Angeles, State of California, filed its judgment (unreported) in Case No. 98894. That judgment granted the wric of man- date sought by the plaintiffs and ordered re- spondents "'. . . to proceed at once to provide salary and wage increases to petitioners [plain- tiffs] occupying classes of positions which shall hereinafter be set forth..." Defendants [petitioners here] then appealed to the Court of Appeal, Second Appel- late District. On November 28, 1973, the Court of Appeal filed its opinion in 2d Civ. No. 40012 reversing the judgment of the Superior Court. The opinion is unreported. Aftera rehearing, a second opinion was filed on May 21, 1974, in 2d Civ. No. 40012. The opinion is unreported. This second opinion reaffirmed its earlier reversal. The California Supreme Court granted a hearing, and on October 3, 1975, filed its opinion (reported at 15 Cal. 3d 328, Cal. Rptr. ; P.2d ) (set forth in Appendix B). That decision reversed the ruling of the Court of Appeal and directed that the judg- ment be remanded to the Superior Court 9 . to permit joinder of the appropriate city officials.'' This was presumably to enable the Court to order these officials to pay the judgment. A petition for rehearing in the California Supreme Court was timely filed on October 17, 1975. It was denied on October 30, 1975. JURISDICTION The judgment, printed in Appendix B hereto, which is sought to be reviewed is dated October 3, 1975, and was filed on that date. A rehearing by the California Supreme Court was denied on October 30, 1975. The jurisdiction of this Court is invoked under 28 USC §1257(3)(1970). QUESTIONS PRESENTED The judgment of the trial court gives rise to the following questions: A. Did the State Court deny to peti- tioner due process of law in granting a writ of mandate ordering the computation and payment of salaries to City employees, notwithstanding the present existence of a salary ordinance as required by the City Charter and which author- ized payment of a different amount for salaries ? B. Did the Court below deny due process of law to petitioner by construing the Memorandum of Understanding to be a binding contract which fixed the compensation for City employees? If found to be a contract, does the failure to comply with City Charter and State law provisions regulating such contracts preclude the granting of the relief sought ? C. Was it a violation of due process and the doctrine of separation of powers for the Court to compel the payment of employee sal- aries contrary to the provisions of an existing salary ordinance and notwithstanding the total absence of any other corresponding salary ordinance or appropriation authorizing such pay- ments? By substituting its own discretion and interpretation for that of the legislative body, did the Court encroach unconstitutionally upon the powers of a coexisting and coequal branch of the government ? D. Was it a violation of due process and separation of powers for the Court to inter- pret the Memorandum of Understanding to be a binding contract wherein the Council delegated its discretionary function to determine employee salaries, and that all subsequent acts were ministerial? Would there be a different result 4, than that of the Court below even under Califor- nia contract law ? E. Did the Court below deny Federal and State due process guarantees to the City of Glendale by failing to recognize applicable State and local laws which were in accord and which were not declared constitutionally invalid ? CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED The following constitutional provisions, statutes and ordinances are involved (set forth in Appendix A): U.S. Constitution: Article I, Section 1; Article Lil, Section 1; Amendment V; Amendment XIV, Section 1. California Constitution: Article I, Sections 1 and 15; Article III, Section 3; Article XI, Sections 3(a) and 5(a); Article XVI, Section 18. California Statutes: Civil Code: Sections 1644, 1646 and 1647, Government Code: Section 3500. Glendale City Charter: , a = ae TY. Section 3: Article VI this action is based deals with a salary survey. It states as follows: Section 6; Article XI, Sections 1, 3 and 4; Article XXIII, Sections 13 and 27, Glendale Ordinances: Ordinance No. 3936, amending Ordinance No. 3921; Ordinance No. 3921. STATEMENT OF THE CASE Pursuant to the Meyers-Milias- Brown Act (California Government Code, Sections 3500, et seq.) the City of Glendale enacted certain ordinances governing employer-em- ployee relations. The Glendale City Em- ployees' Association (hereinafter referred to as ''the Association") representing the City employees, and represented by its President, David North, and a negotiator from the Cali- fornia League of City Employee's Association, Phillip Bowers, met and conferred with Charles Briley, the Assistant City Manager, with regard to the salaries to be paid to the City employees for the fiscal year 1970-1971. The result of these meetings was a negotiated Memorandum of Understanding concerning salaries and other matters. The Memorandum of Understanding con- tained four provisions, but the one upon which "The parties hereto will conduct a joint salary survey and using as guidelines data secured from the following jurisdictions, Burbank, Pasadena, Santa Monica, Long Beach, Anaheim, Santa Ana, Los Angeles City and Los Angeles County. The intent of the survey will be to place Glendale salaries in an above average position with reference to the jurisdictions com- pared with proper consideration given to internal alignments and traditional relationships. The data used will be that data available to us and intended for use in fiscal year 1970-71. Adjustments which it is agreed shall be made will have an effective date of October 1, 1970. It is intended that comparisons will be made on a classification basis and not title only, and that the classi- fications shall be determined by pro- fessional judgment of the highest qualified personnel people with whom we would confer in the jurisdictions with whom which we will compare. " Pursuant to this agreement, a salary survey was conducted. Consistent with its practices since 1953, the City utilized the data by preparing "'bar charts. " These charts are Ve long strips of graph paper showing the job classification on the left side and the salary range for that classification as represented by a colored line on the chart. Each jurisdiction surveyed was represented by a different colored line. By comparing the lineup of the different colored lines it was possible to easily visualize the relationship of Glendale salaries to the other jurisdictions surveyed. It was agreed that in making these comparisons the City could be particularly concerned with the top step (fifth or E step) of the salary ranges, since the majority of the Glendale employees were at the top step of their salary range. Some classifications had no comparable position in their jurisdictions and no comparison was possible. In other cases comparable posi- tions were found in only one or a few of the jurisdictions. Data intended for use in 1970- 71 in Santa Monica and Anaheim were not avail- able at all. The charts were completed in mid- September of 1970 so that the City representa- tives could make recommendations for salary adjustments in time for them to be effective as of October 1, 1970. The proposed Glendale salaries were indicated by a brown line on the bar charts and were discussed by representa- tives of both parties. The Association then obtained a computer analysis of the arithmetical averages of the salaries surveyed, and took the position that the City had not complied with the memorandum of understanding. A salary 8. ordinance embodying the recommendations of the City Manager's office was enacted over objections from the Association. (Ordinance No. 3936, amending Ordinance No. 3921. ) The Association sought a writ of man- date from the trial court contending that the memorandum of understanding had contem- plated an arithmetical average and that the memorandum bound the City to pay each class of employees a salary at least ina salary range above the average of the surveyed juris- dictions for the comparable class of position. TRIAL COURT ACTION The City defended the action on numer- Ous grounds, among them that the memorandum of understanding was not binding upon the City Council and that mandate was inappropriate to compel action by the City Council, but also on the merits that, properly interpreted, the memorandum of understanding was fully com- plied with. The trial court received testimony concerning certain negotiations leading up to the memorandum of understanding and as to the meaning of the phrases "above-average position" and "with proper consideration given to internal alignments and traditional relation- ships, '' in the memorandum. After the trial, the Court concluded that the average for each of the classes of positions must be recomputed using the arithmetical average of the jurisdictions considered plus one cent, and the trial court entered its judgment directing that a peremptory writ of mandate issue. Judgment was filed on July 9, 1971. The defendants appealed. COURT OF APPEAL The Court of Appeal reversed the judg- ment of the trial court. The Court found that the City Council could not be compelled by writ of mandate to adopt an ordinance based on the terms contained in the Memorandum of Understanding as construed by the trial court. The decision was filed on November 28, 1973. Thereafter, the Association successfully sought a rehearing in the Court of Appeal. The Court of Appeal filed its second opinion on May 21, 1974. This opinion reaffirmed its reversal of the trial court's judgment. A second petition for rehearing was denied on June 19, 1974. Plaintiffs then filed a petition for hearing in the California Supreme Court, which was granted on August 28, 1974. 10. CALIFORNIA SUPREME COURT In its opinion, filed on October 3, 1975 (reported at 15 Cal.3d 328, Cal. Rptr. , P.2d ), the California Supreme Court _ discussed the same legal issues raised in the petition for hearing in the Court of Appeal. The Supreme Court's opinion reversed the judgment of the Court of Appeal. Among its findings, it concluded that the Memorandum became a binding contract upon approval by the City Council; that the City had failed to comply with the terms of the contract, as interpreted by the trial court; that even though the plain- tiffs filed suit on behalf of the class of City employees, it found those allegations to be superfluous; that the administrative remedy was inadequate, and so plaintiffs' failure to ex- haust its admininstrative remedies was excused; and that the approval of the Memorandum of Understanding itself constituted the legislative act that fixed employee salaries in accord with the understanding. In order to mend what it considered to be a "procedural defect, "' the Court remanded the judgment back to the trial court for joinder of the "appropriate city officials'' entrusted with the administrative duties of computing and paying salaries. Defendants filed a timely petition for rehearing in the California Supreme Court on October 17, 1975. The petition was denied on October 30, 1975. 11. REASONS FOR ALLOWANCE OF THE WRIT A. UNDER THE U.S. CON- STITUTION (AMENDMENT \V; AMENDMENT XIV, SECTION 1) AND THE CALIFORNIA CONSTI- TUTION (ARTICLE I, SECTIONS 1, 15) THE STATE COURT DE- NIED TO PETITIONER DUE PRO- CESS OF LAW IN GRANTING A WRIT OF MANDATE ORDERING THr COMPUTATION AND PAY- MENT OF SALARIES TO CITY EMPLOYEES, NOTWITHSTANDING THE EXISTENCE OF A SALARY ORDINANCE AS REQUIRED BY THE CITY CHARTER AND WHICH AUTHORIZED PAYMENT OF A DIFFERENT AMOUNT FOR SALARIES, It is no longer the subject of reasonable debate that mandamus may not be employed to effect a desired decision contrary to the opinion of an official or board vested with discretionary power. Redding v. City of Los Angeles (1947) 81 Cal. App. 2d 888, 185 P. 2d 430, certiorari denied 68 S.Ct. 1338, 334 U.S. 825, 92 L.Ed. 1754, rehearing denied 68 S.Ct. 1511, 334 U.S. 854, 92 L.Ed. 1776; Rupp v. Teets (1957) 48 12. Cal. 2d 647, 312 P.2d 5, certiorari granted 78 S.Ct. 91, 355 U.S. 854, 2 L. Ed. 2d 62, affirmed 78 S.Ct. 1263, 357 U.S. 549, 2 L.Ed. 2d 1531, rehearing denied 79 S.Ct. 13, 358 U.S. 858, 3 L. Ed. 2d 92; Bell v. Hood (D.C. 1947) 71 F.Supp. 813; Martin v. County of Contra Costa (1970) 8 Cal. App. 3d 856, 87 Cal. Rptr. 886; Johanson v. City Council of City of Santa Cruz (1963) 222 Cal. App. 2d 68 at 71-72, 34 Cal. Rptr. 798; Tandy v. City of Oakland (1962) 208 Cal. App. 2d 609, 611, 25 Cal. Rptr. 429, Ostensibly, the California Supreme Court ordered the "ministerial" act of paying employee salaries. Where City officials refuse to pay salaries as legally required by a salary ordinance then in existence, such an order would indeed be compelling a ministerial act. However, the Court simply ignored the existence already of a valid salary ordinance, proclaiming the approval by the City Council of the Memorandum of Understanding to be a sufficient "legislative act'’ that fixed employee salaries. But not just any legislative act is enough to fix employee salaries. Article IV, Section 3 of the City Charter of Glendale states: "All [other] officers, assistants, deputies clerks and employees shall receive such compensation as the council may from time to time determine by ordinance. " (Emphasis added. ) 13. Section 4 of Article XI states in part: Council as to how much compensation should be paid. Such discretion cannot be delegated, "All demands approved by the proper abrogated or ignored. board, commission or officer shall be presented to the city controller, who shall examine the same; and if the amount thereof is legally due and there remains on his books an unexhausted balance or an appro- priation against which the same may be charged, he shall approve such ! demand... (Emphasis added. ) We deal here not with the adequacy or inadequacy of the salary ordinance (No. 3936, amending Ord. No. 3921) passed by the City Council on September 29, 1970, but rather our concern is with the extent to which the State courts have undertaken to rewrite a new salary ordinance superimposing their own interpreta- tion of what constitutes the correct amount of compensation to City employees. Section 3 of Article XI states in part: "All demands against the city shall, before being paid, be presented to and approved by the proper commis- sion or officer, as herein provided. Demands for which no appropriation has been made shall be presented to the council. . ... (Emphasis added. ) The provisions of the Charter are the law of the State and have the force and effect of legislative enactments (California Constitu- tion, Article XI, Section 3(a)). It is therefore clear that State law, as well as the Charter, requires that employee salaries be fixed by ordinance accompanied by all the formalities and safeguards pertinent thereto. (See City Charter, Article VI, Section 6. ) Furthermore, Article IV, Section 3 (supra) vests absolute discretion in the City 14, 15. B UNDER THE U.S. AND mountain to overcome. CALIFORNIA CONSTITUTIONS . (CITED SUPRA) THE COURT The Charter prescribes certain pro- BELOW DENIED DUE PROCESS cedures which must be followed in order to OF LAW TO PETITIONER BY bind the City to any proposed contract by virtue CONSTRUING THE MEMORAN- of which any money shall or may become pay- DUM OF UNDERSTANDING TO able by the City (Article XI, Section 1): BE A BINDING CONTRACT WHICH FIXED THE COMPENSA- 1. The proposed contract must be TION KOR CITY EMPLOYEES: presented to the Controller; and EVEN IF FOUND TO BE A CON- inlet om FAILURE TO © 2. The Controller must certify that COMPLY WITH CITY CHARTER an applicable appropriation of fund exists; and AND STATE LAW PROVISIONS REGULATING SUCH CONTRACTS 3. The Controller must certify that PRECL UDES THE GRANTING OF there remains unexpended and unapplied in the THE RELIEF SOUGHT City treasury a sufficient balance to pay the ; estimated expense to be incurred; and . 4. A sufficient appropriation must The California Supreme Court, in con- be made by resolution of City Council (Article tradiction of its own opinion, at one point XI, Section 4), makes reference to the memorandum: It becomes clear that not only weren't tat antes meekd thease be in fe- these procedures followed, but the plaintiffs ducing ‘it to writing, if the terms were put on constructive notice that these pro- of the contract were of no legal cedures couldn't have been followed. At the significance?” (Emphasis added. ) time the memorandum was approved, the survey had not yet been taken, no data had been collected and no results could have ever been reasonably predicted. Certainly there was nothing that could have been presented to the Controller for certification. If indeed we are dealing with a contract, then we are met head on by Article IV, Section 3 of the Charter (supra) which permits employee compensation to be regulated by ordinance only. But even if we make believe that Article IV, Section 3 does not exist, there is still another 16. ° 17. The Court bypassed this problem by conveniently vascillating between ''contract”’ and "legislative act'’ as required to reach the end result. If the Memorandum of Understanding represented any kind of agreement at all, it simply bound the City to take the salary survey, which it did. To read any more than that into the memorandum violates common sense and the plain language of the memorandum. The above provisions of the Charter were enacted to protect and benefit the citizens of the City of Glendale. Its purpose is to achieve a balanced budget through controlled spending of tax levy funds. The circumventing of these Charter requirements in this respect raises serious and substantial constitutional questions respecting the rights of taxpayers for whose benefit these laws were passed. It is absolutely essential for the continued faith of citizens in a democratic form of government, and for the sound, fiscal management of muni- cipal governments, that legislative enactments, absent a declaration of unconstitutionality, be protected from unwarranted and unconstitutional judicial intrusion. Article XVI, Section 18 of the California Constitution states in part: "No... city... shall incur any indebtedness or liability in any manner or for any purpose exceeding 18, in any year the income and revenue provided for such year, without the assent of two-thirds of the qualified electors thereof, voting at an elec- tion to be held for that purpose. . ." (Emphasis added, ) The foregoi*® provision was enacted for the mutual benefit of all of the taxpayers of the City of Glendale. It would have been, and still is, constitutionally invalid for a city to by- pass such an election and bind themselves to any type of agreement whatsoever where the liability pursuant to such an agreement could potentially exceed the income and revenue of the city for that year. Clearly, then, the Council did not there- after lose its authority, but retained its discre- tion to determine employee compensation upon a review of the results from the salary survey. Only in this way could the purpose and spirit of Section 18 (supra) have been effectuated; Only in this way could the memorandum have remained constitutionally valid at all. 19, S. IT WAS A VIOLATION OF DUE PROCESS (U.S. AND CALI- FORNIA CONSTITUTIONS, SUPRA) AND THE DOCTRINE OF SEPARA- TION OF POWERS (U.S. CON- STITUTION, ARTICLE I, SECTION 1; ARTICLE III, SECTION 1; CALIFORNIA CONSTITUTION, ARTICLE Ill, SECTION 3) FOR THE COURT TO COMPEL THE PAYMENT OF EMPLOYEE SAL- ARIES CONTRARY TO THE PRO- VISIONS OF AN EXISTING SAL- ARY ORDINANCE AND NOTWITH- STANDING THE TOTAL ABSENCE OF ANY OTHER CORRESPONDING SALARY ORDINANCE OR APPRO- PRIATION AUTHORIZING SUCH PAYMENT: BY SUBSTITUTING ITS OWN DISCRETION AND IN- TERPRETATION FOR THAT OF THE LEGISLATIVE BODY, THE COURT ENCROACHED UNCON- STITUTIONALLY UPON THE POWERS OF A COEXISTING AND COEQUAL BRANCH OF THE GOVERNMENT. The act of the California Supreme Court, remanding the case for joinder of the 'appro- priate city officials'’ and the ''ministerial acts of computing and paying the salaries as fixed by the judgment, "' ignores the fundamental structure 20. of a corporation, municipal or otherwise. A municipal corporation is a creature of statute. It acts by statute. It functions by statute. It has no authority to do, or understanding of, any- thing other than what it is programmed to do by statute. The Court's decision also ignores the theory of separation of powers, a doctrine conceived at the time of our nation's birth, and one deeply imbedded in both our federal and state trifurcated systems of government. (U.S. and California Constitutions, supra. ) The doctrine precludes a court from commanding or prohobiting a legislative act at the local level (or state level). Monarch Cablevision v. City Council, City of Pacific Grove (1966) 239 Cal. App. 2d 206, 48 Cal. Rptr. 950; City Council of City of Santa Barbara v. Superior Court (1960) 179 Cal. App. 2d 389, 3 Cal. Rptr. 796. It also prohibits judicial interference with the legislative process. Sladovich v. Fresno County (1958) 158 Cal. App. 2d 230, 322 P.2d 565. The Court below attempted, by its deci- sion, to do more than invalidate the existing salary ordinance (No. 3936). It endeavored to redefine and judicially legislate an entirely brand new ordinance, one which was not in existence and which was not approved by the legislative body possessing that power. 21. Courts have no means, and no power, to avoid the effects of legislative nonaction. Therefore, when the legislature fails to make an appropriation, the courts cannot remedy that evil. California State Employees’ Assa. v. State (1973) 32 Cal. App. 3d 103, 108 Cal.R Rptr. 60. In the absence of an ordinance and authorizing appropriation, ministerial City officials have no authority to pay out any money. To the contrary, the official who acts in the absence of such ordinance and appropriation risks both civil andcriminal penalties. (City Charter, Article XXIII, Sections 13 and 27.) The California Supreme Court erred when it embarked upon "'the murky project of ordering legislative members to adopt an ordinance, '' no matter how desirable they believed the ordinance to be. (Dissenting opinion of Justice Stanley Mosk. ) 22. D, IT WAS A VIOLATION OF DUE PROCESS (CITED, SUPRA) AND SEPARATION OF POWERS (CITED, SUPRA) FOR THE COURT TO INTERPRET THE MEMORANDUM OF UNDER- STANDING TO BEA BINDING CONTRACT WHEREIN THE COUNCIL DELEGATED ITS DISCRETIONARY FUNCTION TO DETERMINE EMPLOYEE SALARIES, AND THAT ALL SUBSEQUENT ACTS WERE MINISTERIAL: EVEN AN IN- TERPRETATION UNDER CALIFORNIA CONTRACT LAW WOULD REQUIRE A DIFFERENT RESULT THAN THAT ARRIVED AT BY THE COURT. The purpose of the Meyers-Milias-Brown Act (hereinafter referred to as ''the Act") is to promote full communication between public employers and their employees. Nothing in the Act supersedes the provisions of existing State law and the charters, ordinances, and rules of local public agencies. California Government Code Section 3500. In other words, discretion which was vested in a legislative body prior to the Act still remained in that body subsequent to it. 23. It is incongruous to contend that, by virtue of any memorandum passed pursuant to the Act, ; the legislative body delegated or abdicated its discretion in setting salaries for City employees. It is equally incongruous to argue that the City Council would bind themselves and the City toa contract for employee salaries in an unspecified amount. The approval of the memorandum did not constitute an ordinance; the statutory pre- requisites to any binding contract were totally - lacking; and it was beyond the power and authority of the City Council to delegate such discretionary responsibility in any event. Section 1644 of the California Civil Code states: "The words of a contract are to be understood in their ordinary and popular sense... unless a special meaning is given to them by usage, in which case the latter must be followed. (Emphasis added. ) , Section 1646 of the same code says: "A contract is to be interpreted according to the law and usage of the place where it is to be per- formed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made. (Emphasis added. ) 24. Section 1647 states: "A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.” (Emphasis added. ) The evidence in the trial court was un- controverted that the City had never before used an arithmetical average in computing salary or wager ates for City employees. Notwith- standing this fact, the trial court determined that the City bound itself to pay salaries above the arithmetical average, a term never even used in the Memorandum of Understanding. The memorandum called for acts to be done in Glendale, and it was signed and approved in Glendale. The practice of the City with re- spect to prior salary computations was a matter of public record. No party to the memorandum could have contemplated any specific amount until the results of the survey had been received, analyzed and interpreted. The memorandum itself expressly re- serves the legislative discretion of the Council: "The items in this agreement are subject to the approval of the City Manager and the City Council of the City of Glendale, and will be placed into effect upon the taking of administrative action by the city manager's office and the 25. adoption of the necessary ordin- ances and resolutions by the City Council if acceptable to them. (Emphasis added. ) It is paradoxical indeed to contend that the approval of a memorandum, which express- ly retains legislative discretion, itself con- stitutes a relinquishment of that discretion. It is clear then that at all times, both prior and subsequent to the approval of the memorandum, the City Council did not and could not divest itself of its legal duty and legislative discretion to determine the compen- sation to be paid City employees. The Court below erred in concluding otherwise. 26. E. THE CITY OF GLENDALE WAS DENIED BOTH FEDERAL AND STATE CONSTITUTIONAL GUARANTEES OF DUE PROCESS BECAUSE THE COURT BELOW FAILED TO RECOGNIZE APPLIC- ABLE STATE AND LOCAL LAWS WHICH WERE IN ACCORD WITH EACH OTHER AND WHICH THE COURT BELOW DID NOT DE- CLARE CONSTITUTIONALLY IN- VALID. California has, with the enactment of Article XI, Sections 3 and 5, of its Constitution, elected to permit cities to have and adopt charters by which they may run municipal affairs: Section 3(a): "For its own government... a city may adopt acharter... Section 5(a): "It shall be competent in any city charter to provide that the city governed thereunder.may make and enforce all ordinances and regulations in respect to munici- pal affairs subject only to re- strictions and limitations provided 27. in their several charters... City charters adopted pursuant to this Consitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith. (Emphasis added. ) The City of Glendale has adopted such a charter and is thus subject to home rule in all municipal affairs. Section 5(b) of Article XI (California Constitution) clearly makes the determination of employee salaries a municipal affair. "It shall be competent in all city charters to provide... for... the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed . » - and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the com- pensation. . . of such deputies, clerks and other employees. "’ (Emphasis added. ) It is clear, then, that both State and local law are both consistent with each other: Both place the source of municipal administra- tion in the city charter. Both concede that providing for employee compensation is a 28. municipal affair and is well within the jurisdic- tion of the city charter. It is the province of the judiciary to de- clare the law as it is, and not as the Court deems it. Kelley v. Aarons (D.C.Cal. 1917) 238 F.996, affirmed Kelley v. Gill, 38 S.Ct. 38, 245 U.S. 116, 62 L.Ed. 185; Kobilkin v. Pillsbury (C.C.A. Cal. 1939) 103 F.2d 667, cert. granted 60 S.Ct. 97, 308 U.S. 530, 84 L.Ed. , affirmed 60S.Ct. 465, rehearing denied 60 S.Ct. 584; San Francisco Shopping News Co. v. City of South San Francisco (C.C. A. Cal. 1934) 69 F.2d 879, cert. den. 55S. Ct. 122, 293 U.S. 606, 79 L.Ed. 697. Legislative finds will not be disturbed by the courts in the absence of a palpable abuse of discretion. Nev-Cal Elect. Securities Co. v. Imperial Irr. District (C.C.A. Cal. 1936) 85 F.2d 886, cert. den. 57 S.Ct. 493, 300 U.S. 662, L.Ed. 871; In re Shear (D.C. Cal. 1956) 139 F.Supp. 217; U.S. v. Mock (D.C. Cal. 1956) 143 F.Supp. 661. As far back as 1899, due process of law was defined so as to preclude the exercise by the courts of those powers constitutionally vested in the other branches or departments of government. Western Union Tel. Co. v. Myatt (1899) 98 F. 335, 354. The Court below did not declare the present existing salary ordinance to be so palpably unreasonable and arbitrary as to 29. amount to a gross abuse of discretion. Neither did it conclude that the ordinance was constitu- tionally invalid on any other basis. The Court sidestepped this problem and then proceeded to legislate a new and different ordinance. Such action constitutes an unmistakable denial of due process to petitioner. This Petitioner has found no cases which deny the right of due process to a municipal corporation which attempts to abide by State and local law, applicable and controlling of such municipality, where such laws have not been voided by any court of competent jurisdic- tion. The instant case is not an attempt to invoke the provisions of the Fourteenth Amend- ment "in opposition to the will of its creator, " but rather to urge recognition by the Court below of State and local laws which are not in conflict with each other, and which require conduct in conflict with that ordered by the Court. The California Supreme Court's decision flies in the face of legal precedent and Federal and State law. The City of Glendale and its constituents will be deprived of substantial property rights by virtue of the judgment below, since any judgment will, of necessity, be paid by the taxpapers of the City of Glendale. The ministerial officers of the City, joined by order of the Court below, will be placed in the pre- carious position of being in contempt of court 30. should they not follow its order, or being in violation of the lawful provisions of the City's Charter (cited, supra) if they do. Under any reasonable interpretation of the Memorandum of Understanding expressed by the California Supreme Court, its decision must yield to State and local law, and the Federal and State Constitutions. CONCLUSION The United States Constitution, as well as the California State Constitution, defines the authority, power and limitations of the three respective branches of government. Each branch is forbidden to trespass on the constitu- tional domain of any other branch. The California Supreme Court had the judicial power to consider the existing salary ordinance and pass upon its ability to withstand constitutional scrutiny. In going beyond this, and ordering payment of a specific sum other than that provided for in the existing ordinance, the Court has migrated into a region entrusted to the legislative branch of government. Courts, like municipalities, must look to higher sources for authority for their actions. Once those boundaries are traversed, the 31. Court's actions become null and void. Whether one adopts the Court's charac- terization of the Memorandum of Understanding as acontract, or its later reference to it asa legislative act, the facts and evidence in this case overwhelmingly indicate unwarranted and excessive judicial infringement into the legis- lative branch of government and the constitu- tional protections guaranteed by the U.S. and California Constitutions. We respectfully request this Court to grant Petitioner's Petition for Writ of Certiorari. Respectfully submitted, RICHARD W. MARSTON, City Attorney DENNIS H. SCHUCK, Deputy City Attorney Attorneys for Petitioners 32. APPENDIX A U.S. CONSTITUTION ARTICLE I, Section 1 All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives. ARTICLE III, Section 1 The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. AMENDMENT V (Applicable portion) . . nor shall any person... be deprived of life, liberty or property without due process of law... "' AMENDMENT XIV, Section I (Applicable portion) . . nor shall any State deprive any person of life, liberty or property, without due process of Mees” CALIFORNIA CONSTITUTION ARTICLE I, Section 1 All people are by nature free and independ- ent and have inalienable rights. Among these are enjoying and defending life and liberty, ac- quiring, possessing and protecting property, and pursuing and obtaining safety, happiness and privacy. ARTICLE I, Section 15 Persons may not. . . be deprived of life, liberty, or property without due process of law. ARTICLE III, Section 3 The powers of State government are legis- lative, executive and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. ARTICLE XI, Section 3(a) (Applicable portions) For its own government. .. acity may adopt a charter by majority vote of its electors voting on the question. . . The provisions of a charter are the law of the State and have the force and effect of legislative enactments. ARTICLE XI, Section 5(a) It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regu- lations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitu- tion shall supersede all laws inconsistent therewith. ARTICLE XVI, Section 18 (Applicable portion) No... city... shall incur any indebted- @ss or liability in any manner or for any pur- pose exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose... CALIFORNIA CIVIL CODE Section 1644: The words of a contract are to be under- stood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. A-3 Section 1646: A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made. Section 1647: A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates. GOVERNMENT CODE Section 3500. Purpose and Intent It is the purpose of this chapter to pro- mote full communication between public em- pioyers and their employees by providing a reasonable method of resolving disputes re garding wages, hours, and other terms and conditions of employment between public em- ployers and public employee organizations. It is also the purpose of this chapter to pro- mote the improvement of personnel manage- ment and employer-employee relations within the various public agencies in the State of California by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by such organizations in their A-4 employment relationships with public agencies. Nothing contained herein shall be deemed to supersede the provisions of existing state law and the charters, ordinances, and rules of local public agencies which establish and regulate a merit or civil service system or which provide for other methods of administering employer - employee relations nor is it intended that this chapter be binding upon those public agencies which provide procedures for the administration of employer-employee relations in accordance with the provisions of this chapter. This chapter is intended, instead, to strengthen merit, civil service and other methods of ad- ministering employer-employee relations through the establishment of uniform and orderly methods of communication between employees and the public agencies by which they are employed. GLENDALE CITY CHARTER ARTICLE IV, Section 3 The members of the council shall each be paid twenty-five dollars for each meeting of the council attended, but not exceeding six meetings in each month. The board of education shall serve without compensation. All other officers, assistants, deputies, clerks and employees shall receive such compensation as the council may from time to time determine by ordinance, ARTICLE VI, Section 6 (Applicable portion) The enacting clause of every ordinance passed by the council shall be: ''Be it ordained by the council of the City of Glendale. . ."' At least five days must elapse between the introduction and the final passage of any ordinance. . A final vote on any ordinance or any vote on any appropriation must be taken only ata regular or adjourned regular meeting. Every ordinance must be signed by the mayor and attested by the clerk. Notice thereof shall be published once in a newspaper of general circu- lation... In the publication of every ordinance the advertisement shall contain a statement of the title, number and date of the ordinance, a brief statement of the nature of the ordinance, anda reference to a copy of the ordinance which shall be on file and available for public inspec- tion at all reasonable times in the office of the city clerk. ARTICLE XI, Section 1 (Applicable portion) . » The city clerk shall furnish the controller with copies of all ordinances, resolu- tions and orders of the council making appro- priations or authorizing expenditures of money for any purpose. All... orders or contracts proposed to be entered into by the city by virtue of which any money shall or may become payable by the city. . . the expense of which is to be paid by assessments upon properties benefited or affected thereby, shall before becoming effective, on behalf of the city, be presented to the controller and have endorsed thereon his certificate that there remains unexpended and unapplied in the city treasury as provided by this Charter, a balance of the appropriation or fund applicable thereto sufficient to pay the estimated expense to be incurred during the then current fiscal year under said order or contract A-7 as estimated by the board or officer making the same, or that adequate provision therefor has been made in the tax levy, or by other revenues to be received by the city as estimated in the budgets... ARTICLE XI, Section 3 (Applicable portion) All demands against the city shall, before being paid, be presented to and approved by the proper commission or officer, as herein pro- vided. Demands for which no appropriation has - been made shall be presented to the council... ARTICLE XI, Section 4 (Applicable portion) All demands approved by the proper board, commission or officer shall be presented to the city controller, who shall examine the same; and if the amount thereof is legally due and there remains on his books an unexhausted balance or an appropriation against which the same may be charged, he shall approve such demand and draw and sign his warrant on the treasurer therefor, payable out of the proper fund. . . Such warrants when presented to the treasurer shall be paid by him out of the fund therein designated, if there be sufficient money in such fund for that purpose. ARTICLE XXIII, Section 13 Every officer who shall willfully approve, allow or pay any demand on the treasury not authorized by law, shall be liable to the city individually and on his official bond for the A-8 amount of the demand so approved, allowed or paid, and shall forfeit such office and be forever disbarred and disqualified from holding any position in the service of the city. ARTICLE XXIII, Section 27 (Applicable portion) The violation of any provision of this Charter shall be deemed a misdemeanor. The council may make the violation of any ordinance a misdemeanor and fix punishments therefor, not exceeding a fine of five hundred dollars or imprisonment not exceeding six months, or both. ~~ mean “Elec- ic Data Processin SECTION 2. Section er of Ordi- nance No. 3921 is amended to read: SECTION 6.2. CLERICAL. FIS- CAL AND ADMINISTRATIVE (con tinued). Srestssess SF & SS seusseuies Salary Range Code Class Title No. 0%3 Accountant oede ae ous Administrative “analyst se Tn Assistant City Clerk ‘ 044 Assistant City Contselier 186 City Clerk ; 190 City Controller +. esemeoes 214 City Treasurer Commercial Representative Deputy City Clerk . Deputy City Treasurer I Deputy City Treasurer pe License Investigator I License Investigator I Meter Reader .. on Parking Attendant Parking Meter Collector. Parking Meter Serviceman Real Property Agent and Claims Investigator ed Senior Accountant ‘ Senior Meter Reader ; Senior Parking Attendant Special Collector — ffic and Parking Foreman SECTION 3. Section 6.3 of ce No, 3921 is amended to mGECTION 6.3. CLERICAL, é Sax SESB2E2 ao tle bm S3z¢ 35 = @ & gusag enumnaeuand a Code Class Title No. 009 Administrative Intern 250 0:8 Assistant Buyer . 030 Assistant Chief Examiner . 69 062 Assistant City Manager 650 076 Assistant to City Manager = 141 Buyer re a. « 162 Chief Examiner ........... 73 198 City Manager .- . «-«se- 800 220 Civil Defense Property Officer am & 2333 Commercial Operations» = mean A 62 315 Director of Purchases ..... 67 440 Executive Assistant ~o 594 Mechanical Stock Clerk 36 630 Personnel Analyst 2.68 633 Personnel Trainee 47 687 Principal Personnel Analyst 60 723 Research and Budget Gee .- # 4. saeeeses 66 760 Senior Administrative Analyst 56 804 Senior Personnel Analyst . 61 863 Storekeeper I .... .. «++. 40 866 Storekeeper JI .......+.++. 48 941 Warehouseman . «a SECTION 4. Section 6.4 of Ordi- nance No. 3921 is amended to read: SECTION 6.4 ENGINEERING AND RELATED TECHNICAL. Salary Range Sate Class Title No. Assistant Engineering Technician ice er ae 129 Building Inspector I. 50 130 Building Inspector I .... 383 223 Civil Engineer 7 226 Civil Engineering Assistant 55 2°29 Civil Engineering Associate 61 262 Construction Inspector 53 321 Draftsman a 403 Electrical Inspector s eo oa 429 Engineering Aide >» oo 432 Engineering Technician 49 480 Heating, Ventilating and Air Conditioning Inspector 50 486 Industrial Waste Inspector §1 498 Instrumentman 49 516 Lath and Plaster Inspector 50 639 Plan Checker 55 642 Planning Assistant ........ 4 645 Planning Associate ........ 52 648 Planner oenecoeeos 56 651 Planning Director .......- 76 654 Plumbing In or ovcon 679 Princi Engineering Technician —r er 691 Principal Planner SS 72% Right-of-Way Agent . 7 Rodman and Chainman 43 768 Senior Building Inspector . 54 776 Senior Construction Inspector peeeaoenes 59 780 Senior Draftsman .......-- 4 796 Senior Engineering Technician , ° 55 806 Senior Planner 6 890 Superintendent of Buildings 70 893 Supervising Civil Engineering Associate ..... 64 905 Survey Pa Chief — Zoning Administrator 64 SECTION 5. Section 6.5 of Ordi- nance No. 3921 is amended to read: SECTION 65. ENGINEERING AND RELATED TECHNICAL (con- tinued). Salary Range - PAGE 2 Cede Class Title Ne 603 Painter . & 048 Assistant City E 71 722 Refuse Collection Foreman 49 064 Assistant General Manager 736 Sanitation Crewman - and Principal Engineer 7? #7 Sanitation Superintendent .. 66 158 Chief Electric Works 818 Senior Refuse Foreman .. 51 Engineer © scoccceee DH 94 te cco 174 Chief Water Works 830 rintendent 57 er =——t—sést nw we sw ww 7 9845 lant Salasenanse 194 City Engineer scosce TE ee 56 210 City Traffic E . 68 848 Steam Plant Mechanic I 46 3i2 Director of Public Works 84 851 Steam Plant Mechanic I 50 391 Electrical Engineer 68 854 Steam Plant Operation Electrical Engineering Supervisor 62 Assistemt = =i tete 56 857 Steam Plant Operator a ee ae 399 Electrical Engineering 860 Steam Plant Coesater = - 61 Sesemeee =i ecetcce 62 935 Truck (pesetes 42 419 Electrical Sales $38 Utility elder. 50 Representative “ae 52 989 Yard Attendant. 36 468 General Manager and SECTION 7. Section 6.7 of Ordi- Chief Engineer = ..«s. 700 mance No. 3921 is amended to read: 573 Mechanical Engineer — SECTION 6.7. LABOR, LABOR 576 Mechanical Engineering SUPERVISION AND SKILLED Assistant -- 5 TRADES (continued). 579 Mechanical Engineering Salary Associate coe @ Range 683 Principal Mechanical Code Class Title No. Paes = —=——tsést nw www wc 72 111 Auxiliary Operator , 39 695 Principal Structural 582 Mechanical Maintenance Engineer oe and Warehouse 772 Senior Civil En neer 70 Superintendent nee 792 Senior Electri Engineer 71 698 .Pumping Plant Operator. . 4. 824 Senior Water Works 820 Senior Strect Foreman - S Engineer «e-see T1 827 Sewer Maintenance = — 878 Structural Engineer ..... 66 834 Sign Painter — * ae 881 Structural Engineering 869 Street Foreman. a 8 ee aa 55 872 Street Maintenance Man . 39 884 Structural Engineering 875 Street Superintendent .... 66 Associate sacon =O 924 Traffic Painter ....... 40 896 Supervising Electrical 947 Water Construction Engineering Associate ..... 68 Supervisor 58 899 Supervising Structural 950 Water Distribution Inspector 43 Engineering Associate ..... 67 %3 Water ForemanI . 47 920 Traffic Engineering 956 Water Foreman I 53 Assistant = = = —aeseses 55 959 Water Meter Repairman I 40 923 Traffic Engineering 962 Watcr Meter RepairmanlIl #4 Associate 61 965 Water Production and SECTION 6. Section 6.6 of ‘Ordi- Maintenance Supervisor 53 nance No. 3921 is amended to read: SECTION 6.6. LABOR, LABOR SUPERVISION AND SKILLED TRADES. Range Code Class Title No. 088 Automotive Body Repairman sees Automotive Equipment Painter men Automotive Serviceman .. Blacksmith and Welder Bookmobile rator ; Building R-pair Foreman Building Repairman Carpenter ‘a Cement Worker Finisher . Custodial Worker I__...... Custodial Worker = enna Electrician le newness Elevator Opera , Equipment Miechanic 1 Equipment Mechanic es tor 0 % Equipment yearend Equipment Heating and > Conditioning Sepetemen — Inspector Machinist Maintenance Man Maintenance Superintendent. Municipal Bulldings Mechanic Helper Mechanical Repair Helper Mechanical Repairman I Mechanical Repairman I Motor Sweeper Operator SSSSNSRLISSSSSSERS S883 334882 e288- ShFS ASRSHRSSSareeBs= 8 SKS8 SSSSSE 968 Water Production and Storage Foreman fiune & 971 Water Service and Meter Supervisor ° §1 974 Water Service Investigator . 45 977 Water Superintendent . 6 980 Water System Repairman. 45 983 Water Utilityman I —a 986 Water Utilityman I 43 SECTION 58. ction 6.8 of Ordi- nance No. 3921 is amended to read: SECTION 6.8. LABOR, LABOR SUPERVISION AND SKILLED TRADES (continued). Salary Range Code Class Title No. 018 Appliance Service Foreman 51 021 Appliance Serviceman 170 Chief Steam Plant Engineer 343 Electric Meters and Services Supervisor ... . 62 347 Electric Overhead Supervisor - Electric Station Foreman. Electric Station Operator Electric Test Assistant Electric Test Foreman Electric Test Repairman I Electric Test Repairman II Electric Unnderground and Station Supervisor +8 Electric Utilityman I Electric Utilityman IT Electric Utilityman III Electrical Mechanical ee 6 6—lt—eestie ws ORO Electrical Mechanical & Bs B S682 LhRB=82 a = = : PAGE 3 R S « & » seem 47 Code Class Title No. 415 Electrical Mechanical 015 Animal Control Officer 0 Repeirman I 53. 114 Battalion Chief . 6 423 Electrical Superintendent 68 298 Communications Operator . 36 492 Instrument and Labora 302 Deputy Fire Chief : 70 Technician I #4 $=. a 716 Recreation Supervisor 51 719 Recreation Superintendent 59 816 Senior Recreation Leader 45 911 Swimming Instructor mo 914 Swimming Pool manager 41 926 Tree Trimmer co & 929 Tree Trimmer Crew Foreman oe aan 932 Tree Trimmer Foreman 51 SECTION 10. Section 6.10 of Ordi- nance No. 3921 is amended to read: SECTION 6.10. PARKS, RECREA- TION AND LIBRARIES (continued). y Range Code Class Title No. 012 Adult Librarian........ 57 080 Athletic Official . 230 126 Branches and Circulation Librarian 127 Brand Art Center Librartan 57 147 Catalog Librarian ae 57 166 Chief Librarian Oe, 178 Children’s Librarian ..... 57 268 Cultural Arts Advisor se 309 Director of Parks -— Recreation 73 318 Display Artist . 2 441 Exhibits Ceoréinater ania 46 §2% Librarian I - « -«e-e- 47 628 Librarian ian " 51 631 $ensy | aa alee = 534 Library : 836 Special Activity Leader 37 887 Student Librarian 245 SECTION 11. Section 6.11 of Ordi- nance No. 3921 Is amended to read SECTION 6.11 COM MUNICA- TIONS. P'/BLIC SAFETY. LEGAL AND PUBLIC HEALTH Salary Range ‘ SECTION 12. Section 6.12 of Ordi- nance No. 3921 is amended to read: SECTION _ 6.12. COMMUNICA- TIONS, PUBLIC SAFETY, LEGAL AND PUBLIC HEALTH (continued). Salary Range Code Class Title No. 036 Assistant City Attorney. S 182 City Attorney . .......0+. 202 City Nurse , cies cae 206 City Physician . 400 217 Civil Defense Coordinator 61 282 Deputy City Attorney — 306 Deputy Police Chief . . 70 489 Instructor—Civil Cetense 270 501 Jailer I ' os 504 Jailer Il » secetauee es >} - eee 37 615 Parking Checker ......... 33 657 Police Captain ...... . 67 660 Police Chief ss cen neues — 663 Police Detective ee 54 666 Police Lieutenant 5 eenee 64 669 Policeman | ‘adendbertinies 51 672 Police Sergeant’ .......... 675 Policewoman eae 7 Rangemaster 40 731 Safety and Training Officer 59 732 Safety Inspector es 47 7 Senior Assistant City Attorney 74 SECTION 13. This ordinance shall take effect and be in force on the lst day of October. 1970. Passed by The Council of the City of Glendale on the 29th day of Sep tember, 1970. WARREN F. HAVERKAMP, Mayor pro tem. ATTEST: JOHN H. WALTERS, City Clerk. STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES =. CITY OF GLENDALE I, JOHN H. WALTERS, City ‘Clerk of the City of Glendale, certify that the foregoing ordinance was passed by The Council of the City of Glen- dale, California, at a regular meet- ing held on the 29th day of Septem- ber, 1970. and that the same was passed by the following vote: Ayes: Allen, Peters, Watson, Hav- erkamp. Noes: None Absent: Perkins. JOHN H. WALTERS. City Clerk. Oct. 2, 1970. af sHlyuth . stl; PAGE 1 OBDINANCE NO. 3921 AN ORDINANCE OF THE CITY OF GLENDALE PROVIDING FOR CERTAIN OFFICERS, SUBORDI- NATE OFFICERS, ASSISTANTS, PU CLERKS. TIES, . PLOYEES OF THE CITY OF GLENDALE AND FOR THEIR COMPENSATION. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF GLENDALE: SECTION 1. CLASSIFICATIONS AND POSITIONS—CREATED AND DEFINED. The offices and em- ployments hereinafter designated in this ordinance, except insofar as they are specifically provided for by The Charter of the City of Glen- dale, are hereby created. As used herein, a ‘“‘position’’ shall be deemed to mean an office or em- ployment calling for the rendition of service by one Derson. As used herein, a ‘‘classification’’ shall be deemed to mean a group of positions having sufiiciently s.:n- ilar duties, responsibilities and qual- ifications to be designated by the same descriptive title, and as to which the same salary range may be made to apply with equity. As used herein, a ‘‘safety mem- ber’’ shall be deemed to mean an employee who is classified as a “local safety member’ under the State Em we Retirement Law. SECTION 2. DESCRIPTIONS OF CLASSIFICATIONS. The description of classifications hercin mentioned, ey as may be otherwise provid- ed The Charter of the City of Glen ale, shall be those which are or may be hereafter determined by ‘The Classification Plan end Class Specifications for Glendale, California,” adopted by the Civil Service Commission of the City of Glendale on the 10th day of M ay. 1940, and any amendments thereof. SECTION 3. As to the persons in the various classifications herein mentioned subsequent to the effec tive date of this ordinance, the in- creases or decreases in rates of compensation set forth in this amending ordinance shal! be effec- tive July 1, 1970. SECTION 4 SCHEDULE OF COMPENSATION RATES. The [fol- lowing schedule of compensation rates shows standard salary range numbers, the salary steps desig- nated by letters, and unless other- wise specified, the full-time month- ly rates (in dollars) for all classifi- Standard Salary 1. A B Cc = 5 E 1 307 322 340 359 380 17 313 331 350 370 390 18 322 340 359 380 401 19 331 350 370 390 410 20 340 359 380 41 421 21 350 370 390 410 434 22 359 380 401 421 444 23 370 390 410 434 458 24 380 401 421 444 469 25 390 410 434 458 482 26 401 471 #4444 #+$49 495 77 410 434 458 482 509 23 421 444 469 495 6523 29 434 458 482 509 536 30 444 #469 «#$495 +523 553 31 48 482 SOS 636 567 32 469 49% 523 #553 580 33 482 509 536 567 597 34 49 523 653 580 612 35 509 536 567 597 629 36 523 553 580 612 644 37 536 567 597 629 663 38 553 580 612 644 682 39 567 597 629 663 699 40 580 612 644 682 718 41 597 629 663 699 736 42 612 644 682 718 757 43 629 663 699 736 779 44 644 682 718 757 799 45 663 699 736 779 821 46 682 718 757 799 843 47 699 736 779 821 864 48 718 757 799 843 888 49 736 «779 821 864 913 50 757 799 843 888 938 51 821 864 913 964 52 7 843 888 938 53 821 864 913 964 1016 54 843 888 990 1042 55 864 913 964 1016 1071 56 888 938 990 1042 1100 57 913 964 1016 1071 1130 58 990 1042 1100 1161 59 964 1016 1071 1130 1192 60 999 1042 1100 1161 1223 61 1016 1071 1130 1192 1257 62 1042 1100 1161 1291 63 1071 1130 1192 1257 1326 64 1100 1161 1223 1291 1361 65 1130 1192 1257 1399 66 1161 1223 1291 1361 1438 67 1192 1257 1326 1399 1476 68 1223 1291 1361 1438 1516 69 1257 1326 1399 1476 2085 2031 2142 2260 2384 2513 2085 2200 2321 2447 2583 700 24 2547 2687 2835 2991 SECTION 5. SCHEDULE OF COM- PENSATION RATES — SPECIAL RATES. The following schedule of compensation rates is for classifica- tions not within the standard salary ranges set forth in Section 4: Salary Range 200 . 2.00 eeeeecesceosoeseed ' per hour C—O #34 per hour i e¢eedeseueseoseos 2.63 per hour MP eccuseseseoecesees 2.74 per hour Me eeenceeseeeoesesed 2.81 per hour ccvccececececeoses per hour a? e9seesses -asennans er per hour aaa, $3.22 to 14 per hour* i? seaneseee $5.54 to $6.65 per game* Ty sevcoceseceseeseed per month GP eeccceecesecceses per month Dy eeceseoeceuseeees $1390 per month Te. eecsvcecoesesess $1608 per month Gy escetesesesoecsed $1875 per month GP eeccoceccescccecs $2437 per month Dt steekenusnecanial $3243 per month *Rate to be fixed b ye a "ianener. =e 6. TION coD AND COMPENSATION SCHEDULE. The Code number and the Salary Range number assigned PAGE 2 to each classification are set forth in Sections 6.1 to 6.12 inclusive of this ordinance SECTION 6.1. CLERICAL, FIS CAL AND ADMINISTRATIVE. Salary Range Code Class Title No. 120 Bookkeeping Machine QOMeTRtOF cccccccccecccces 34 154 Chief Clerk ....cseeeseeceee 48 232 Clerical Aide ....-..ses+-- 210 Se GEOR EB cocccccece covceonse 25 ; ee ee: ere — Se Gee Fe cc cccccessesoeeses 36 244 Clerk-Stenographer ........ 32 247 Clerk-Typist 1 ....sceeseees 27 250 Clerk-Typist Il ......eeeees 31 324 Duplicating Shop eee PPT Tee 39 327 EDP Assistant Programmer Analyst .. 51 330 EDP Equipment TTT 42 331 EDP Senior Equipment Operator Cs) 333 EDP Operations Supervisor ......-eeceees 54 336 EDP Programmer Analyst 59 337 EDP Principal Programmer Analyst .... 62 338 EDP Systems Analyst - 59 339 EDP Director ——...s.seee 65 507 Key Punch Operator sceeee 2 510 Key Punch Supervisor ..... 37 522 Legal Secretary : — 7 Secretary -Stenographer I 37 7 Secretary-Stenogra her II 40 749 Secretary to City Clerk = 752 Secretary to City Manager 47 The letters “EDP used herein shall be understood to mean “‘Elec- tronic Data Processing.”’ SECTION 6.2. CLERICAL, FIS- CAL AND ADMINISTRATIVE (con- tinued). Salary Range Code Class Title No. 003 Accountant .......-.secesee. 48 006 Administrative Analyst .... 51 040 Assistant City Clerk ..... 55 044 Assistant City Comener oo 186 City Clerk Repterin .600 190 City Controller .......... 625 214 City Treasurer : 500 256 Commercial Representative 38 290 Deputy City Clerk +. oo ae 294 Deputy City Treasurer I 38 298 Deputy City Treasurer II 42 537 License Investigator I 41 540 License Investigator II 45 597 Meter Reader ......+e.+. — 612 Parking Attendant ....... 20 621 Parking Meter Collector .. 35 624 Parking Meter Serviceman 39 707 Real Property Agent and Claims Investigator 50 756 «Senior Accountant....... 56 798 Senior Meter Reader 41 800 Senior Parking Attendant 28 839 Specia) Collector ——— 918 Traffic and Parking Foreman janese. wee SECTION 6.3 CLERICAL, FIS- CAL AND ADMINISTRATIVE (con- tinued). Salary Range Code Class Title No. 009 Administrative Intern 245 028 Assistant Buyer —— 030 Assistant Chief Examiner 68 052 Assistant City Manager 650 076 Assistant to City Manager = 141 Buyer 162 Chief Examiner ........ 4 3 198 866 941 - So eee 800 Civil Defense Property er ee 47 Commercial Operations ae —— Director of Purchases ..... 67 Executive Assistant . .. 8 Mechanical Stock Clerk — Personne! Analyst ......... 53 Personnel Trainee ..... -. 290 Principal Personnel De TTT Te - & Research and Budget PE sesheines .wcescuqoneoes 43 403 Electrical Inspector ...... 50 429 Engineering Aide ........ 37 432 Engineering Technician ... 47 480 Heating, Ventilating and Air Conditioning ~~ eae 50 486 Industrial Waste Inspector 50 498 Instrumentman _ .....eses. 48 516 Lath and Plaster ee, eee coeee > Pee Ceeeeee ss. cocccccces 55 642 Planning Assistant ........ 46 645 Planning Associate ........ 51 — eT —=—s—és—ee ee ce 55 651 Planning Director ........ 7 654 Plumbing Inspector ...... 50 679 Principal Engineering ll 61 691 Principal Planner ........ 66 725 Right-of-Way Agent ...... 56 728 Rodman and Chainman .. 42 768 Senior Building Inspector 54 776 Senior Construction Inspector i. .meunseeuese 59 780 Senior Draftsman ........ 48 796 Senior Engineering a 55 806 Senior Planner ....cseceee 61 890 pe of DEE «ac caaneseceseces 70 893 Supervising Civil Engineering Associate 64 905 Survey Party Chief ........ 55 992 Zoning Administrator .... 64 SECTION 65. ENGINEERING AND RELATED TECHNICAL (con- tinued). Salary Range Code Class Title No. 048 Assistant City Engineer .. 71 064 Assistant General Manager and Principal Engineer ...... 79 158 Chief Electric Works ON Ol 75 174 Chief Water Works pn TTT ee 75 194 City Engineer = wees. 77 210 City Traffic Engineer . 6&8 312 Director of Public Works 84 PAGE 3 $91 Electrical Engineering .... 68 39 Electrical Engineering Assistant eee eee ee © 56 Electrical Engineering Associate ecececcceceee & 419 Electrical Sales Representative .......... 52 #8 General Manager and Chief Engineer ...... «+700 673 Mechanical Engineer ..... 66 576 Mechanical Engineering Assistant -- 55 579 Mechanical Engineering | SE scntccnene cccoe @ 683 Principal Mechanical cade. seen ees 72 695 Prinal al Structural Engineer seeeece Ee 772 Senior Civil Engineer ..... 70 792 Senior Electricai Engineer 71 824 Senior Water Works Engineer seesee Un 878 Structural Engineer venmun 66 881 Structural Engineering Assistant ...... eee 884 Structural Engineering Associate 61 896 Supervising Electrical | mag Associate ... 68 899 Sypecvinas tructural ngineering Associate ... 67 920 Traffic Engineering DT et al *>, ) Plaintiffs and Appellants, L.A. 30357 Ve Super. Ct. No. 988 94k CITY OF GLENDALE et al., Defendants and Appellants. With the enactment of the George Brown Act (Stats. 196], ch. 1964) in 1961, California became one of the first states to recognize the right of govern- ment employees to organize collectively and to confer with management as to the terms and conditions of their ° employment. Proceeding beyond that act the Meyers- Milias-Brown Act (Stats. 1968, ch. 1390) authorized labor and management representatives not cnly to confer but to enter into written agreements for presentation to the governing body of a municipal government or l otner local apgpency. The present case raises among lf The Meyers-Milias-Brown Act (Gov. Code, es i ‘ad a). J anne? F hee eae "\—TescteT Te: PL te beh ‘eal al wh CUNT ARL Ye ei sade de ait's Us st ew at other issues which we shall discuss the fundamenta) question unanswered by the literal text of these stat- utes: whether an agreement entered into under the Meyerse“iliaseirown Act, once asproved by the Eoverne ing board of the local entities, binds the public employer and the public employee organization. We conclude that the Legislature intended that such an understanding, once ratified, is indeed binding upon long as wy rights did not cone flict with the public service. The George Brown Act, originally a pioneering piece of legislation, provided only that management representatives should listen to and discuss the demands of the unions. Apparently the failure of that act to resolve the continual cone troversy between the growing public employces' organ- izations and their employers led to further legislative inquiry. Moreover, subsequent enactments of otncr states, which granted public employees far more exten- sive bargaining rtanee. further exposed the lirita- tions of the George Brown Act, Cognizant of this turn of events the sates 7 lature in 1968 enacted the Meyers~-Milias-Brown Act, ' Expressly intending the new law to strengthen employer- Collective Bargaining in the Public Sector (1969) 22 Vand, L.nev. 033. 8/ Anderson, The Impact of Public Sector Bargaining (1973) Wis. L.Rev. YOO, 960. see authorities cited footnote 4, supra, a/ os / California Senate Select Committee 1 Local Public Safety Employment Practice, To Meet and Confer: A Study of Public Employee Labor Relations (1972) pages 2h ae agency, becomes a binding agreement." (Grodin, Public Employee Bargaining tn California: The Meyers-Milias- Brown Act in the Courts (1972) 23 Hastings L.J. 719, 756.) The leading decision, however, 1s one wilch although decided in 1970 arose under tne earlier George Brown Act, East Bay Mun. Employees Union v. County of Alameda, supra, 3 Cal.App.3d 578. Settling a strike by county hospital employees, Alameda County arreed to ll/ Professor Grodin's article, published in March 1972, cites only superior court decisions in support of his position, but subsequent to that publica- tion two Court of Appeal decisions have also enforced agreements reached under the Meyers-Milias-Brown Act, (San Joaquin County Employees' Assn., Inc. v. County of San Joaquin (1974) 39 Cal.App.3d 83, 88-89; Wilson v. San Francisco Mun. Ry. (1973) 29 Cal.App.3d 870,) These decisions, as well as the Court of Appeal opinion in the instant case, are analyzed in a second article by Professor Grodin, California Public Employees Bar- aining Revisited: The MMB Act In the Appellate Courts page 2. Professor Edwards of the University of Mich- igan Law School summarized the decisions of other states: "It is increasingly apparent in the developing case law that once a contract has been signed, the pub- lic employer must, in effect ‘adopt' the contract and do everything reasonably within its power to see that it is carried out.” (Edwards, The Emerging Duty to Bar- rain in the Public Sector (1073; -T RTO TOR RES -%.) ‘Ine phrase “everything, reasonably within its wer" refers to the problems, discussed by Edwards, ilch may arise when a public agency agrees to a con- ract but must depend on appropriations from another e + be ney to carry out that contract. Since tne Glendale y Council has authority to appropriate sums needed pay the salary increase it agreed to pay, those problems do not arise in the present case. 7 2) P cezD reinstate the strikers without loss of any benefits previously earned by those employees. Upon reinstate- ment, however, the county classified the strikers as new eauployees, with resultant loss of seniority, vaca- tion, sick leave, retirement and other benefits. Reversing a trial court ruling which declined to enforce the agreement, the Court of Appcal through Justice Wakefield Taylor stated that the George Brown Act “required the public agency to meet and confer and listen. ... [T]he modern view of statutory provis- ions similar to the Brown Act is that when a public employer engages in such meetings with the representa- tives of the public employee organization, any agree- ment that the public agency ig authorized to make and, in fact, does enter into, should be held valid and binding as to all parties." (3 Cal.App.3d 578, 584.) If, under the more limited provisions of the George Brown Act, which does not specifically refer to an “agreement reached by the representatives of the public agency and a recognized employer organization," never- theless the negotiation and agreement by such parties are “valid and binding," we conclude a fortiori that the memorandum of understanding reached under the broad- er Meyers-Milias-Brown Act is indubitably binding. 14 3. The city has failed to comply with the terms ot the memorandum of understanding. Defendants challenge the trial court's find- ing that the city did not comply with the terms of the agreement. We have pointed out that the trial judge found the agreement uncertain in meaning and admitted parol evidence to aid in its construction. Defendants do not contend that the evidence reccived was inadmis- sible under the parol evidence rule, nor that the evidence so admitted does not support the findings and conclusions of the trial court. Instead, the defend- ants argue first, that the city singularly enjoys a unilateral right to insist upon any reasonable inter- pretation of the agreement that it chooses, and second, that the agreement can properly be interpreted to re- quire only the taking of a salary survey, leaving the fixing of salary ranges to later administrative deter- mination. 12/ See Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co, (1968) 69 Cal.2d 33, 40; Tahoe Nation- al Bank v. Phillips (1971) 4 Cal.3d 11, 22-23; Jones, Evidentiary Concepts in Labor Arbitration: Some Modern parcl evidence rule on the interpretation of collective bargaining agreements. The city's claim to a unilateral right to in- terpret the memorandum rests upon numerous cases hold- ing that a city wage ordinance will not be held to con- flict with charter provisions requiring payzent of prevailing wages unless the city's action is "so pal- pably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law." (Sanders v. City of Los Angeles (1970) 3 Cal.3d 252, 261; Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 639; City & County of San Francisco v. Boyd (1943) 22 Cal. 2d 685, 690.)~ The city seeks to apply this doctrine to the present case; it argues that in enacting Salary Ordinance No. 3936 it attempted to comply with its duty under the memorandum, and that this ordinance can- not be set aside unless it is fraudulent or palpably unreasonable, This argument, however, misses the point; the issue here is not the validity of Ordinance No. 3936, but the sufficiency of that ordinance to fulfill pe v. City of Alameda (1973) 30 Cal.App.3d 518, 532; San- ders v. City of Los Angeles (1967) 252 Cal.App.2d 488, 190; Anderson v¥. Board of Supervisors (1964) 229 Cal. App.ed 796, 798-800; San Bernardino Fire & Police Pro- tective League v. City of San Bernardino (1962) 199 Cal.App.2d 401, 408, the city's duty under the memorandum. Although the cited cases recognize the broad discretion of a city in interpreting its respective charter's prevalling wage provisions, and although defendant city here would analogize the instant issue with such a preva.ling wage case, defendant's position founders on the rock of the bilateral nature of the instant memorandum of understanding. We do not probe the city's interpreta- tion and application of a prevailing wage ordinance or even an alleged abuse of discretion by the city in so applying it; we deal here with a mutually agreed cov- enant, @ labor management contract. We know of no case that holds that one party can impose his own inter- pretation upon @ two-party labor-management contract. In pre-Wagner Act days some courts considered collective bargaining agreements to be merely statle- ments of intention or unilateral memoranda. (See Cham- berlain, Collective Bargaining and the Concept of Con- tract (1948) 48 Colum.L.Rev. 829, 832; Annot. (1935) V5 A.L.R. 10, 34-37.) But all modern California de- cisions treat labor-management agreements whether in 17 L4/ 1 public employment or private as enforceable con- tracts (see Lab. Code, § 1126) which should be inter- preted to execute the mutual intent and purpose of the 16 parties. This principle applies as much to azreements between government employees and their employers as to if See East Bay Mun. Employees Un‘on v,. County of aneda, supra, 3 Cal.App.3d 578, 584; San Joaquin County Employees' Assn., Inc. v. County of San Joaquin, supra, 39 Cal.App.3d 83, 88-80, iv See Posner v. Grunwald-Marx, Ine. (1961) 56 Cal.2d T0v, 177; McCarroll v. L.A. County etc. Car- penters (1957) "9 Cal.2d 45, 66-67; Holayter v. smith (1972) 209 Cal.App.3d 326, 333-334; San Diego etc. Car- penters v. Wood, Wire, etc. Union (1969) 274 Cal.App. ed 683, 689; Div. Labor L. Enf. v. Ryan Aero Co, (1951) 106 Cal.App.2d Supp. 833. 16/ Civil Code section 1636 declares that "A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascer- tainable and lawful." This section was applied to the interpretation of private collective bargaining agree- ments in General Precision, Inc. v. International Asno- ciation of Machinists (1966) 241 Cal.App.2d 744, 746- 747 and McKay v. Coca-Cola Bottling Co, (1952) 110 Cal. App.2d 672, 676. In Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.ed 1609, 177, we observed that a collective bargain- ine agreement "is more than a contract; it ‘s a gener- allzed code to govern a myriad of cases which the draftsman cannot wholly anticipate. ... It calls into being, a new common law -- the common law of the particular industry.” (56 Cal.2d 169, 177, quoting United Steelworkers v. Warrior & Gulf Navigation Co, (1900) 363 U.S. 574, 578-579.) 18 bept. (1974) 1i Cal.3a 382, 341; San Joaquin Count ployees' Assn., Inc. v. Coun 17/ private collective bargaining agreements. Agree- ments reached under the Meyers-Milias-Brown Act, like their private counterparts, are the product of negoti- ation and concession; they can serve as effective ine struments for the promotion of good labor-manaxsement relations only if interpreted and performed ina man- ner consistent with ives expectations of the parties. The city raises many other objections to the trial court's interpretation of the agreement: it con- tends that the memorandum gave the council discretion to choose whether to implement the Survey findings; that the memorandum is but an agreement to agree in the future concerning new salary ranges; that the tera “average salaries” in the memorandum does not mean an arithmetic average but refers to the city's practice of using bar graphs to visualize an average salary lev- el; that the phrase “proper consideration [for] internal 17/ Courts have frequently drawn upon pre-e cesents involving private labor-manaysement relations to atc in determining the rights of public employee: , “and Yon loart.e a“ , \ «rr ty ee ss _ ey lo" © rranizations. (See, C.Pe, Firefirhters Union hha SOSy wt vallejo (1974) 12 Cal. da 606, O17; Social weOrTKOET:, vnion, Local 535 Vv. Alameda Counts We) fare y Em- ty of San Joaquin, su TP) Cal.App. 2a 83, 8. » i , upra, 19 alignments and traditional relationships” in the memo- randum authorizes the city to use such alignments and relationships to justify payment of below average sal- All the sbdove contentions violate the estad- lished rule tnat if the construction of a dgscument turns on the ressSlution of conrilicting extrinsic evi- dence, the trial court's interpretation will be fol- lowed if supported by substantial evidence. (See 6 Witkin, Cal. Procedure (2d ed. 1971) pp. 42-4244 and “ases there cited.) In light of this rulc, defendants, in order to overturn the trial court's interpretation, must demonstrate either that the extrinsic evidence on which the court relied conflicts with any interpreta- tion to which the instrument is reasonably susceptible (Pacitic Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, Ov Cai.2d 33, 40) or that such evidence does not provide substantial support for the court's interpreta- tion. Sut defendants present neither contention. Their argiwrents, based upon an interpretation of the indunm. on its face without reference to the extrin- lence or the trial court's findings, pose no issue coynizable within the scope of our appellate _- Plaintiff union may maintain tnis action on Denali ot tne Glendale city employees; Ailegations that this suit 1: a class action are superfluous anu do not aifect j the vVa@sidily of the judgment. Peer htisis”’ COmpPlasSt 21.Gy@S, wis tA. COdre SOunc, that vlaintists rileas suit on Seaair oF the Ciass of city empioyees. ve:cndants argue that plaine tiffs failed t2 provide adequate notice to the members of the class; | plaintiffs respond that defendants first raised this issue on appeal. Piaintilrfs' class aliegations, however, are superfluous; plaintitf asso- clation, as the recognized representative of city er- ployees, may sue in its own mame to enforce the memo- randum of understanding. (See Professional Fire Fignters, Inc. v. City of Los Angeles (143) £0 Cal.?d 276, 263-20.) Since the ciass action format adds Mothing to the rights or liabilities of the paties, 18/ The record indicates only that plaintiff union posted notice of the action on various bulletin boards. After the court found in favor of plaintiffs, the union posted a second notice advising employees that their counsel would request an award of attorn- eye’ fees, and the manner in which employees could ap- pear in order to be heard in opposition to that award. T - “* - P . , * }iay It is not necessary to rind thas suit a - . - . ~* ~ ‘ aya a . aArmatia ¢is nare ft ar PT overt iass action in orde ; iphold the portion : tne udgment awarding counse -or a,.@intiffs 2 pere ent of all retroactive salaries anid waves reccived. . award may be sustained under tne rule that a lite the issue of notice to the members of the class is im- tained, the instant complaint as one brought by the material. union as an entity." (59 Cal.2d at pp. 608-609, ) The instant case in this respect closely ree In accord with Daniels, we conclude that tho Squee - es Daniels v. Sanitarium assn., Inc. “25) 49 unnecessary Gilesacions anc Cliacings wher. ine suit is "Ql1.26 Oe, 1a which we first conrirmedc the ri;ht ' @ aclass action do not detract from ihe merits of! union to sue as a legal entity. In Daniei:, tne union plaintiff association's suit as the recopnized repre- vice-president sued as a “representative” of the union; sentative of the city employees. “Superfluidity does we held that the suit should have been filed by tne not vitiate." (Civ. Code, § 3537.) union directly. We stated, nowever, that “we do not De Plaintiffs’ action is not barred for tailure to exhaust administrative remedies. believe the form in which the action is fed “4 oO > 3 c a crucial. Here Daniels sued ‘in a representative Defendants contend that this suit is barred “apacity for and on behalf of' the union. ... but by plaintiffs' fatlure to exhaust administrative rem- the union, as we have pointed out, may sue as an entity edies. Defendants refer to the grievance procedure es- the wrong done to itself: such an action is not a tablished by Ordinance No. 3530, enacced in 1905, Sec- la: xction but a direct one by the union. Hence tne tion 9 of this ordinance provides that an aggrieved em- better and simplest form of procedure would be the suit ployee, whose dispute relates to "the interpretation or —_ in the name of the union as such. Since the matter | application of this Ordinance, an ordinance resulting, e procedural only, however, we have considered, and sus- from a@ memorandum of understanding, or of rules or rege slations governing personnel practices or working con- ‘ant wk reates a fund in which others enjoy benefi- iitions” should first consult informally with his sup- i “Quire th nenef'claries to pay mr f the ex»cnse , litigation. (See rVicser se ,i that consultation coes not resolve the PAu » a Snic Nat'l Ban« ‘ 307 U.S. lvu.; ESe } ca. o si, 132: Estate of licpule, Lhe erployee may tiie @ crievance form with a Q@.e:d Uv, - .in wv. narsid e Perrussa rp. (104 a » Pf; Parmwers the ipervisor, who wmuct enter nis cecision and reasons ‘ce, Nat. Ua V Lverson zie 601, 207 WON, \ Inve : tc: Attorneys Yee: and return the Yorn to tne n.oyee. If dissatisficd ee ——_- -—- — ~ - ‘ AarVves NOV. °) © > with the supervisor's response, the employee may for- ward the form to the division head; if dissatisfied with the division head's response, he may forward tne form to tno city méenager, Wiose Gecics.on ia sindl. Plaintiffs did not foliow tnis proceaure Serore insi.- tuting the present action. The requirement of exhaustion of administra- tive remedies does not apply if the remedy is inade- yuate. (Ogo Associates v. City of Torrance (1')/") 3% ———— Cal.App.3d 830, 834; Diaz v. Quitoriano (1969) 268 Cal. App.2d 807, 812; Comment, Exhaustion of Administrative Remedies in California (1968) 56 Cal.L.Rev. 1061, 1079- 80.) The city's grievance procedure is inadequate to ne resolution of the present controversy in two respects. First, the pertinent portion of Ordinance No, 3830 provides only for settlement of disputes relating to the “interpretation or application of . . . an ord- inance resulting from a memorandum of understanding." imphasis added.) The crucial threshold issue in the sen ontrovercy -=- whether tne ratified memorancum nderstandiny: itself is binding upon the parvies -- > ; se , "w r . ~ . ‘ es not invo.ve an “ordinance” ana nence does not tail within the sce of grievance resolucion. —_——_ Second, the city's procedure is tailored for “oer nat the settlement of minor individual grievances. A pro- = cedure which provides merely for the submission ofa grievance form, wiisout the taning of ccsvitiony, tne submission of legal briefs, or resolution vy an it.pare tial finder of fact is manifestiy inadequate to handle disputes of the crucial and complex nature of the in- ‘tant case, which turns on the effect of the underly- ing, memorandum of understanding itself. (Cf. Martino v. Concord Community Hosp. Dist. (1905) 233 Cal.App.ed 0. Mandamus lies to enforce the memorandum of uncerslanding. The usual remedy for failure in employer to pay wages Owing to an employee is an action for breach of contract; if that remedy is adequate, mandate will not lie. (See Elevator Operators etc. Union v. Newnan (1947) 30 Cal.2d 799, 808 and cases there cited. ) But often the payment of the wages of a public employee requires certain preliminary steps by public officials; uch instances, the action in contract is tnadeocuate ind tandate is the appropriate remecy. (See Tevis Vv. ity & County of San Francisco (iyo) %> Cal.2d 190 bl v. Board of Education (1912) 18 Cal.App. 222 (mandate and that mandamus will not issue to compel action lying to compel officials to approve payment), cf. Flora within the scope of agency or official discretion, or > Crane Service, Inc. v. Ross (1904) "1 Cal.2¢ 117) (ean to compel performance of a legisiative act — jate to cocnea C roller 3 Cestiiy vive “ » Duvendasts! contontion roosts upon the ise been appropriates).) The superior ccury in wc — taken impression that the trical court manuatca the en- case concluded that since “enrorcement 3: tne rignts of attment of & new salary ordinance. The trial court's plaintiffs] requires obtaining tne officias coopera= judgment, however, proceeded upon the theory that the tion necessary to implement the application of tile council's approval of the memorandum of understandinr, rormusa agreed upon in the Memorandum of Understanding. in itself constitut e act that fixed . « « [Plaintifss] do not have a speedy or adequare employee salaries in accord with that understanding. remedy at law to prevent tne —e of Sheer The writ, therefore, did not command the enactment of rights other than by mandamus." a new salary ordinance, but directed the non-legisla- Althourh defendants co not challenge the tive and ministerial acts of computing and paying, the court's conclusion that plaintiffs nave no other ade- salaries as fixed by the memorandum and judgment. tuate remedy, they nonetheless urce that. the remed, nf ata mandamus is not available, Defendants conven ae 21/ See % Witkin, California Procedure (20 adoption of a salary ordinance constitutes a lecisla- ed. L971) page 3651 and cases there cited. | o2/ Part ) of the trial court judgment pro- tive act within the discretion of the city councis, : vides “That a peremptory writ of mandate issues direct- ing the respondents . . . to proceed at once to provide salary and wage increases . . . in accordance with the following standard: . . ." The judgment then sets out / plaintiffs ajso sougnt declaratory Fer in detail the formula by which the wage increase for ‘ a@ Undoubtedly estadiished a controversy Skee *" each step of each job classification must be computed. just! - hat remecy. (See Walker v. ~~ Part ot the Judement then orovides that “When tne An ima) 5 Cal.cd 6°60, 03060354; en eee oreroine computacions have been made, respondents care Fire & Police Protective iva ce *. ty yp Bagg OO irther direetea to proceed at once to pay the difrer- : no, tty 169 Careanpecs “Ol, Face) cae evs ‘ntiai sum due each said employee sor the period 9c.o- w . "trae am action in cet.arevory < scipg) to Ta ber 1, 1970 through June 30, i971, together with incer- ses not oreve she use of mandate. ock V. Supe est as provided cy law... ." print court (195?) 109 Cal.App.cd Sii+, C03- The use of mandamus in the present case thus falls within the established principle that mandamus may y « issue to compel the performance of a mi terial duty 4! nis 2h/ or to correct an abuse of discretion. "The critical question in determining i- an act required by law is ministerial in character is whether it involves the exercise of judgment and dis- cretion.” (Jenkins v. Knight (1956) 4» Cal.@d °G, 223-224.) %In the present case, the city entered into an understanding which, we have held, became a valid and binding agreerent upon approval by resolution of ; tre council. That agreement, as interpreted by the ‘2/ See People ex rel. Younger v. County of FI Dorads TI9: 'l) 5 Cal.3d 480, 491; Jenkins v. Knight 1956) 46 Cal.2d 220; California Civil Writs (Cont.Ed. Bar 19% 0) sections 5.25-5.20. 24/ “While mandamus will not iie to control the discretion exercised by a public officer or board . « « it will lie to correct an abuse of discretion by such officer or board," (Baldwin-Lima-Hamilton Corp. vy. Superior Court (1962) 208 Cal.App.2d 803, 823; see Walker v. County of Los Angeles, supra, 55 Cal.2d 676, 2); Cal. Civil Writs (Cont.Ed.Bar 0) §§ 5.33- Witkin, Cal. Procedure (2d ed. 1971) pp. W53- . Contrary to the claim of the concurring and dis- renting. opinion (see infra at np. P »* appellate ! } thi state have on numerous oeeanions mandated erislative vodies to enact salary ordinances. (Sec, wey OANdErS ¥. City of Los Angeles (1970); 3 Cal.ja 62, Ono2; Walker v. County of Los Angeles (1961) 95 Cal. od 620, 039; Sanders v. City of Los Angeles (196/) Lu Cal.App.od GOB; accord Griffin v. Bourd of Supervisors l'#)93) 00 Cal.i'd 418 (mandate directing board of sup- ervisors to reapportion county).) ®Concurrine and dissenting opinion, pages °=-3. 2& trial court, is definitive, and admits of no discretion. The findings and judgirent establish precise mathematical standards which, applicd to the survey Gata, yield tne exact sums due, The triai court, in fact, awarded plaintiffs prejudgment interest on thc Ground that the action was one "to enforce an underly- ing, monetary obligation the amount of which was certain or could have been made certain by calculation." (im- phasis added.) Unquestionably the negotiation and approval of the understanding involved the cxereise of discretion by city officials. (San Joaquin County kn- ployees' Assn., Inc. v. County of San Joaquin, supra, 39 Cal.App.3d 83, 87-88.) But in approving; the under- standing, the city exhausted that discretion; the duty of its officials to carry out its obligations is of ministerial character, 7. The cause must be remanded for joinger oi e city oificers c arhe W ee uty of computing anc paying wares “ia GS2iarics oi city employees. AS we have noted, the trial court mandated perfornance of the ministerial acts of computing and paying; the oalaries as fixed by the judgment. The court's writ, however, was dlreetecu only to the cits and its councilmen; plaintiris falled to join as addi- tional defendants the city officials entrusted with the administrative duties of computing and paying salaries, The trial court judgment and randate thus suffer from @ procedural defect similar to that discussed by tac Court of Appeal in Martin v. County of Contra Costa (1970) 8 Cal.App.3d 856. In Martin, plaintiffs sued the county and its board of supervisors to mandate payment of uniform al- lowances. The trial court rendered judgment only against those named defendants, and not against the county officers responsible for payment of the allow- ances. In remanding the cause for further proceedings, the Court of Appeal stated that “The only defect in proceedings and judgment is the failure to join the proper ministerial officers of the county government. Plaintiffs should be permitted to join the proper par- ties. . .. Since the county is the real party in in- terest and has been represented throughout, those min- isterial officers should not be permitted to assert any laches or limitations upon being joined, but should be bound by the findings made against the county and its voard of supervisors which have been approved in this opinion.” (8 Cal.App.3c at p. bof.) rollowing tne reasoning of the Court of Ap- 30 peal, we hold that the present judgment in favor of plaintiffs must be reversed and remanded to permit joinder of the appropriate city officials. These mini- sterial officers should not be permitted to assert any defense of laches or limitations, and wili be bound dy the findings of the trial court made against the city. 8. Plaintiffs' cross-appeal is not meritorious. The City of Glendale bas traditionally deter- mined employee salaries by establishing a five-step salary range for each job classification. The trial court directed that whenever Glendale's salary for the fifth step of a salary range was less than the average salary from the surveyed jurisdictions, the city must raise the fifth step salary to an amount equal to that average plus one cent; it further directed that sal- aries for steps one through four be raised proportion- ately to the fifth step salary. Plaintiffs argue on their cross-appeal that the trial court, instead of directing payment of fifth step salaries equal to the survey average plus one cent, should have ordered the city to provide salary increases to the closest fifth step of a higher range above the average. We believe, however, that the court did exactly that which plaintiffs now request; in fixe 31 ing step five salaries at the average plus one cent, and increasing step one through four salaries proportionate- ly, the court in effect established a new salary range at a level sufficient to assure plaintiffs a salary above the averace from the Surveyed jurisdiction. Al- though plaintiffs would prefer a raise to a salary range which exceeded that average by more than the one cent differential established by the trial court, they point to nothing in the memorandum of understanding or the evidence which bars the creation of new salary ranges so long as they yield an above-average wage. 9. Conclusion For the foregoing reasons, the judgment is reversed, and the cause remanded for further procecd- ings in accord with the views expressed in this opinion, Fach side shall bear its own costs on appeal, TOBRINER, J, WE CONCUR: WRIGHT, C.J. McCOMB, J. SULLIVAN, J, CLARK, J. RICHAKDSON, J. N) i Se 19 19 he) I< GLENDALE CITY EMPLOYEES ASSN. v. CITY OF GLENDALE L.A. 30357 CONCURRING ANN DISSENTING OPINION RY FOSK, J. IT concur ir, the reversal of the jurirment, bdut I dissent from the directions riven upon remand. The majority make out a persuasive case for Clodiin that a memorandum of understandinr rerardine municipal emplovee Salaries was reached and that the city should in good con- Science honor its arreement. From that moral readinr, how- ever, the majority leap to a leral conclusion which results in Judicial invasion of the legislative process, and the matter is returned to the trial court for issuance of an order which cannot, or should not, be enforced. The posture in which tnis case comes to us is of Sipnificance. [first of all, the plaintiffs sued no minis- terial officers; they sued the City of Glendale and five indi- viduals identified as “the duly elected councilmen,” members of the "roverninr body” of the City of Glendale. tio other persons, particularly none with ministerial as distinguisned from lerislative duties, appeared in the action at any time. Secondly, the trial court issued a writ of mandate “directing the respondents and each of them [i.e., the city ele and the duly elected councilmen) to proceed at once to pro- vide salary and ware increases to petitioners... . . And finally, in their petition for hearinr the petitioners seek mandate to enforce a menoranduy “executed by the City of Glendale,” not mere performance of a duty by an identified ministerial public servant. I The majority have cited no authoritative cases in which a city and its legislative body have been mandated to adopt an ordinance, relating to salaries or to any other subject. The reason there are no such appellate cases is clementary: adoption or rejection of an ordinance has always been recornized as an act of lerislative discretion and courts may not interfere with that lepislative function. fach councilman has his electors:ly bestowed right to vote “aye” or "nay" on any proposal rendin= before the body. Perhaps, as here, the city and its rovern- ine lerislators should have honored an obliration, Dut they cannot be compelled to do so by mandate of a court. Let us review the cases cited by the majority to pur- portedly support their conclusion that a city and its council- men may be ordered to enact a specified ordinance. in Tevis v. City and County of San Francisco (1954) 43 Cal.2d 199, 194, members of a commission, the secretary of the civil service commission and the controller “were directed to certify and approve payrolic.” his was clearly a ministerial act, but, the court continued at pare °%), city officiais “may not be compelled to authorize the payment of compensation or issuer a warrant when funds are lacking [i.e., umappecrrtaved..” Thic court expressed the hope the city would mare funds available, but there war no order for it to do so. Ross v. Hoard of Education (1912) 18 Cal.App. 2227, involved an order directinr members of a board to pay £100 due on an emnloyment contract. Flora Crane Service, ‘nc. v. Toss (176%) €1 Cal.2d 199, concerned mandate arainst the city controller because he had failed to perform what the court found to be a minis- terial duty (id. at p. 204). To the same effect is San Francisco v. Boyd (1941) 17 Cal.2d 606: Involvinr an employ- ment contract, the mandate suit was not directed to the city or its legislative body, but arainst the controller, a minis- terial officer. Similarly in Ackerman v. ‘ioody (1918) 35 Cal.App. 461, the city auditor, not the City of San Diero or its council, was ordered by mandate to certify a recall election. The majority, in footnote 24, desperately attempt te find some authority for courts to mandate lerislative veodies. They miss the target. Sanders v. City of Los Anreles (1970) 3 Cal.3d 252, and Sanders v. City of Los Angeles (19f7) 252 Cal.App.2d 486, arose out of the same circumstances. ihe courts found that a ministerial officer had failed to perform his charter-required function. "As the adviser of the committees and the council and as the responsible official of the city, the City Administrative Officer falled utterly to perform his duties.” (Id. at p. 493 of 52 Cal.App.2d.) de, and several administrative departments--recreation and parks, library, retirement system, pensions--were then directed to perform their ministerial duties. o In Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 632, the court declared that the Board of Supervisors failed to perform its duty, but found only that the board has "a quasi-judicial, non-lerislative, fact-findinr function preceding the performance of the indicated lerislative act.” (Italics added.) It was that nonlerislative function the board was mandated to perform. It is true that we ordered the Board of Supervisors to redistrict supervisorial districts in riffin v. Board of Supervisors (1963) 60 Cal.2d 318. I point out, however, that this court obviously has had sccond thourhts about the propriety of such an order, for it was not repeated in sub- sequent reapportionment cases. We never arain mandated a legislative body to pass a reapportionment act; we indicated thet if 1% did not do so by a specified tire, the court woula undertake the task. And we did. (Olilver v. Brown (1965) G3 Cal.2d 279, 281; Lerislature v. “Yeinecke (1972) 6 Cal.% 595, 693; Legislature v. Reinecke (1972) 7 Cal.7%d 22, 7; Lemislature v. Reinecke (1°72) 10 Cal.i3ad 396.) Thus it is abundantly clear that appellate courts do not order a political subdivision as an entity, or its legislative body, to act or to refrain from acting in any specified manner. Tandy v. City of Oakland (1962) 206 Cal.App.2d 609, is a case in point. Plaintiffs sought to mandate the city council to rezone tneir preperty on a theory that the current zoning ordinances were unconstitutioral as applied. The ceust held tnat such ordinances “are entirely within the d!secret'or of the municipal lerislative hody”" and tnat "a court cannct Substitute its judrment for that of the municinality” (id. at 4 + p. 612). To the identical effect is Johanson v. City Counc!l (1963) 222 Cal.App.2d 68, 72 lI The majority seem to assume that a mere ministerial net, rerformed bv unidentified “appropriate city offictals” (ante, p. ___"), will provide the petitioners with the remedy they seek. The assumption is unjustified. As alleged in the complaint and as found hy the trial fudre, on Jentember 29, 1970, the city couned] adonted salary ordinance jo. 3921, which, said the trial court, “id net provice tnereases in salaries and wares” based unen tie rurportedc formula. The adoption of tnat ordinance was clearly Multilith opinion, pare 31. a lerislative act, 25, indeed, is the passare or rejection of can the ministerial officers secure enactment of a county ary ordinance. If there are to be any other or different ordinance as prayed? The lartin court rives us ne clue, nor salary provisions, ordinance Wo. 32971 rust be repealed by the do the majority advise us here how the unidentified ministerial] city council ar nother ordinance aconte in its stead. Cc officers, at this late date to be arenced inte the case, are ic action wi a] e strictly lerislative in character undertake the lerislative task of repealine ordinance fio. 3321 hat brinres us back to square one: there is no and adrting another measure in its place. authority for this court or any court, to direct how th ———$— OO nn O ——————— — TT is ity councilmer individually or collectively, ure to vote ‘ 1} : : at Pin nally, I am compelled to make an embarrassinr inquiry. on nv easure propo: 1 to repeal ordinance on, 39). Poamrseasent . ow do my learned collearues propose to enforer their order t 1 bar ined understandinre, the councilmen may be under a naturally it is to be hoped that ll rood eitizen: moral obliration to adopt a new salary ordinance. ‘iowever, will accept a final judicial determination of their rirhts the question before us is not the existence of a prior conmit- anc uties. But let us assume arruendo that the “Glendale ment, but whether a court may compel a lerislative result. ; - a se — City uneciimen aie intransirent, that thev steadfast) yv Pp. The procedure erploved by the Court of Appeal in = s Posey t¢ nen ry eal ordinance ‘Io. 299} ard to adon?t ane ther Martin v. County of Contra Costa (1979) ® Cal.App.i% °56, Salary ordtr -e in its stead. Are my collearurs prerared and adopted oy the mafority here, is untenable. The court to cite the entire lerislative tody for conterrt of their order? there conceded “the reneral princinie that the courts have a (See, e.7., City of Vernon v. Superior Court (1952) 38 Cal.2¢ no power to compel the performance of 2 lerislative act” and 909, 519-520.) I would hope not. Yet the potential need to that the netitioners asked for mandate to compel the city “to GO SO demonstrates one of the ritfalls when the tudiciary at- r . an ordinance which compensates and provices benefits termnts In manner te dictat how the acie itive Nerocece fe ‘erHar- ic. at p. 845). It then proceeded to 1d to function or r *“ sinistertal officers. Ow, It must he asked, 1 the final analysis, this is not a labor or Salary case nor is it litigation over a contract. This is ’ is ‘i ‘ separat On ———— upper _ uw Upon a 1 Y 1r ‘mone ’ Wa - | has ‘ a project o e, no matter how --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1516%3A1. Public record. Not legal advice.