Riverside Sheriffs Assn. v. County of Riverside

Filed 4/10/07 Riverside Sheriffs Assn. v. County of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Erik Michael Kaiser, Judge. Affirmed.

Law Offices of Dennis J. Hayes and Dennis J. Hayes for Plaintiff and Appellant.

Kinkle, Rodiger and Spriggs and Bruce E. Disenhouse for Defendants and Respondents.

Introduction

The Riverside Sheriffs Association (RSA) appeals from the trial courts order denying its petition for writ of mandate. RSA requested that the court order the County of Riverside (County) to meet and confer with RSA, as authorized under the Meyers-Milias-Brown Act (MMBA) (Gov. Code, 3500 et seq.),^[1]to establish the appropriate procedures for a name-clearing hearing for a probationary officer. RSAs request to meet and confer arose out of this courts prior unpublished disposition in the case, Madrigal v. County of Riverside (E037113), which was filed on October 19, 2005. In that case, we held that, although Xavier Martin Madrigal, a former probationary officer with the Riverside Sheriffs Department, was not entitled to challenge his termination because of his probationary status, he should have been afforded an administrative appeal under the former section 3304, subdivision (b). The County maintained that it had no obligation to bargain with RSA under the MMBA. The trial court agreed and denied the writ of mandate. As discussed below, we also conclude that the County had no duty to meet and confer with RSA to determine the procedures for an administrative appeal for a probationary officer under section 3304, subdivision (b).

Facts and Procedural History

After the Perris Police Department disbanded, Officer Xavier Martin Madrigal began working for the Riverside County Sheriffs Department on a probationary basis. Before the probationary period ended, the County terminated Madrigals employment. Although the County was conducting an ongoing internal affairs investigation, which originated with allegations received by the Perris Police Department, Madrigals termination was for reasons unrelated to the investigation. After experiencing difficulty in obtaining new employment, Madrigal discovered that his personnel records included these unsubstantiated allegations of misconduct.

Madrigal filed a civil action against the County when it refused to grant Madrigal an administrative appeal of his termination. The trial court resolved the matter in Madrigals favor and held that Madrigal was entitled to a hearing under former section 3304, subdivision (b).^[2] As ordered by the trial court, the County set a liberty interest hearing on January 7, 2004. In a letter dated December 22, 2003, RSA, which represents law enforcement employees of the County, requested that the County meet and confer with RSA regarding the Countys procedures for this new hearing.

The County responded that it had not made any changes to the hearing procedure for probationary employees or any other changes to the terms or conditions of employment for law enforcement employees. The County stated that Madrigals hearing was scheduled solely to comply with the trial courts order.

In another letter dated January 7, 2004, RSA reiterated its request to meet and confer regarding the procedures that would apply to Madrigals hearing and any future hearing of a similar nature. RSA maintained that the County necessarily would be using some set of procedures for Madrigals hearing, but such procedures should not be implemented without first meeting and conferring with RSA. After Madrigals hearing was rescheduled on November 17, 2004, RSA renewed its request.

On June 3, 2005, RSA filed its petition for writ of mandate against the County, the Board of Supervisors, and Ron Comers, who was the Director of Human Resources and the Assistant Chief Administrative Officer.^[3] RSA claimed that (1) the County unilaterally adopted new procedures for a liberty interest hearing for probationary employees and (2) the Countys act triggered the meet and confer requirements of the MMBA because it concerned the wages, hours, or terms and conditions of law enforcement employees.

The trial court denied RSAs petition. The court found that the County did not change any rules or regulations relating to matters within the scope of RSAs representation. The court also found that RSA failed to establish the following: that the hearing involved an employment issue, as opposed to a post-employment issue; that the County had a binding past practice; and that the Countys act would have had a significant effect on employee wages, hours, or other terms and conditions of employment.

RSA now appeals.

Discussion

The issue in this case is whether the County had a duty to meet and confer with RSA under the MMBA.

In addressing this issue, the normal standards of review on appeal apply. We defer to the trial courts factual findings and uphold them if supported by substantial evidence. We independently review pure questions of law, including the selection of the appropriate rule. (20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.) We also independently review mixed questions of law and fact (i.e., the application of the appropriate rule to the particular facts) where, as here, the issues are predominately legal. (Ibid.)

Section 3505 of the MMBA provides: The governing body of a public agency, or such boards, commissions, administrative officers or other representatives as may be properly designed by law or by such governing body, shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations, as defined in subdivision (b) of Section 3501, and shall consider fully such presentations as are made by the employee organizations on behalf of its members prior to arriving at a determination of policy or course of action.

The Countys duty to meet and confer is limited to matters that are within the scope of representation. (Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630 (Claremont Police).) The scope of representation includes all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order. ( 3504.) Although section 3504 refers broadly to all employment matters, the mandatory duty to bargain arises only where the employers action or policy has a significant and adverse effect on the organization members wages, hours, and working conditions. (Building Material & Construction Teamsters Union v. Farrell (1986) 41 Cal.3d 651, 659 (Building Material).)

As provided in the statute, the employer has no duty to bargain over the merits, necessity, or organization of any service or activity provided by law or executive order. ( 3504.) After evaluating the corresponding federal legislation and case authority interpreting that legislation, the California Supreme Court explained that the state Legislature included this exception to exempt general managerial policy decisions from the employers mandatory bargaining duty. (Building Material, supra, 41 Cal.3d at p. 660; see also Claremont Police, supra, 39 Cal.4th at p. 631.) Nevertheless, such decisions are within the scope of representation if the employers interest in managing its operations is outweighed by the benefit of bargaining on employer-employee relations. (Building Material, supra, at p. 660.)

Based on this explication of the statutory language, the California Supreme Court has set forth the following three-part analysis: First, we ask whether the management action has a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees. [Citation.] If not, there is no duty to meet and confer. [Citations.] Second, we ask whether the significant and adverse effect arises from the implementation of a fundamental managerial or policy decision. If not, then, as in Building Material, the meet-and-confer requirement applies. [Citation.] Third, if both factors are present--if an action taken to implement a fundamental managerial or policy decision has a significant and adverse effect on the wages, hours, or working conditions of the employees--we apply a balancing test. The action is within the scope of representation only if the employers need for unencumbered decisionmaking in managing its operations is out-weighed by the benefit to employer-employee relations of bargaining about the action in question. [Citation.] In balancing the interests to determine whether parties must meet and confer over a certain matter ( 3505), a court may also consider whether the transactional cost of the bargaining process outweighs its value. [Citation.] (Claremont Police, supra, 39 Cal.4th at p. 638.)

The facts in this case do not take us beyond the first part. Although the parties discuss the other parts of the analysis, we will address these arguments briefly at the end of this opinion. We will focus, instead, on the decisive issue, namely, whether a court-ordered hearing for a probationary employee under the former section 3304, subdivision (b), had a significant adverse effect on the terms and conditions of employment.

RSA contends that the procedures adopted for Madrigals hearing under section 3304, subdivision (b), will significantly affect all future probationary employees involved in similar situations. This is not true for two reasons: (1) Madrigals case involved a unique set of circumstances that likely will not repeat in the future; and (2) Madrigals case required the application of a former version of section 3304, subdivision (b), which now excludes probationary employees.

Madrigals situation involved both unusual facts and unusual procedures. The Perris Police Department initiated the internal affairs investigation into allegations that Madrigal was involved with drugs and prostitution. The Perris Police Department disbanded and the County hired Madrigal as a deputy sheriff on a probationary basis. Although the County inherited Madrigals internal affairs investigation, the County did not have access to the evidence necessary to affirm or disaffirm the allegations. The County nevertheless retained the information concerning the allegations of misconduct in Madrigals personnel file. Meanwhile, Madrigal did not successfully complete the probationary period and was terminated for reasons unrelated to the internal affairs investigation. When the County refused to grant Madrigal an administrative appeal, Madrigal sought judicial review. The trial court found and this court upheld its finding that, while Madrigal was not entitled to contest his termination because of his probationary status, he should have been afforded an opportunity to respond to the allegations in his personnel file and attempt to clear his name.

The County, therefore, was mandated to provide Madrigal with a hearing under former section 3304, subdivision (b). The County attempted to comply with the court order by giving Madrigal an opportunity to respond to the allegations. Madrigal filed a petition for writ of mandate on the ground that the Countys hearing procedure failed to comport with the requirements of an administrative appeal under section 3304. Both the trial court and this court found that the procedure used by the County was inadequate. (Madrigal v. County of Riverside II (Oct. 11, 2006, E039803) [unpub. opn.].)

Based on these unusual circumstances, the Countys decision on the procedures for Madrigals administrative appeal would not have affected the terms and conditions of employment of other probationary employees. The order for Madrigals administrative appeal was based on the unusual facts involving an employee charged with misconduct impugning his moral character and reputation and an employer who retained information concerning the allegations of misconduct without substantiating them, in part, because it was not the agency that initially received the allegations. The hearing was mandated by the court to address Madrigals specific situation.

Moreover, as stated above, there was a change in the law and section 3304 no longer afforded administrative appeals for probationary employees. In December 2003, RSA first sought to meet and confer with the County on the proper procedures for an administrative appeal for probationary employees under section 3304, subdivision (b). Madrigals hearing concerned facts that occurred before 1998. In 1998, well before RSAs request, section 3304 was amended to exclude probationary employees. The pre-1998 version of the statute, therefore, applied only to Madrigals case.

In our unpublished opinion, Madrigal v. County of Riverside (E037113), we noted that, in 1998, the Legislature amended section 3304 by limiting its application to a public safety officer who has successfully completed the probationary period that may be required by his or her employing agency. (Stats. 1998, c. 786, 1.) The decision in Madrigals case, and other cases applying section 3304 to probationary employees, was based on an old version of the statute that no longer reflects the current law. (Compare, e.g., Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1360 with also Los Angeles Police Protective League v. City of Los Angeles (2002) 102 Cal.App.4th 85, 89.) In 2003, probationary employees were not entitled to an administrative appeal under section 3304. Therefore, it was unnecessary for the County to meet and confer with RSA to discuss the appropriate procedures for an administrative appeal under section 3304 for probationary employees in similar situations.

Although RSA may argue that the County had a duty to meet and confer on the proper procedures for Madrigals hearing alone, such broad application of section 3505 is inappropriate where Madrigal was part of a larger unit, namely, law enforcement employees or, more specifically, probationary law enforcement employees. The mandatory duty to meet and confer applies if the employees action or policy has an adverse effect on the bargaining unit employees. (See Building Material, supra, 41 Cal.3d at p. 659.) It would place an onerous burden on the County if it was required to engage in the collective bargaining process whenever an individual employee had a grievance concerning an isolated situation that did not affect any other employees. Because of the change in law, Madrigals case was an isolated situation. The adequacy of the procedures used for Madrigals administrative appeal, which is no longer available under the law, did not constitute a significant adverse affect on the terms and conditions of employment.

While RSA may want resolution on the general questions of whether probationary employees are entitled to liberty interest hearings and, if so, what procedural protections apply to those hearings, this is not the question involved here. The County was ordered to provide Madrigal with an administrative appeal under section 3304, subdivision (b). As noted in our opinion, although Madrigal alternatively claimed that he was entitled to a liberty interest hearing under the due process clause, this claim was untimely. (Madrigal v. County of Riverside (Oct. 19, 2005, E037113) [unpub. opn.].) The hearing mandated by the court, therefore, was based solely on section 3304, subdivision (b). This case presents the question of whether the County had a duty to meet and confer with RSA to determine the proper procedures for an administrative appeal for probationary employees under section 3304and the answer is no.

Although, as stated above, the facts in this case do not take us beyond the first part of the analysis set forth in the Claremont Police case, the parties arguments indicate some confusion concerning the application of section 3505. To clear up some of this confusion, we briefly will address the alternative arguments raised by the County. First, to avoid the meet-and-confer requirement, the County argues that Madrigals hearing involved a post-employment issue because it concerned whether the County should have retained the allegations of misconduct in Madrigals personnel file after his termination. Countys characterization of the issue is too narrow. Although Madrigal discovered that the unsubstantiated allegations were included in his personnel file after his termination, the County maintained them in his file since it received his records from the Perris Police Department. So it would be fairer to say that Madrigals situation involved both an employment and post-employment issue.

Moreover, although section 3504 refers to the terms and conditions of employment, the scope of representation is not limited to issues that arise only after an employee is hired and before the employee is fired. In fact, some issues arise outside the period of active employment, yet still concern employee-employer relations, such as an employers hiring procedures and an employees future benefits and retirement. (See, e.g., San Bernardino Public Employees Assn. v. City of Fontana (1998) 67 Cal.App.4th 1215, 1226; International Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 971.)

Second, in relying on our decision in Riverside Sheriffs Assn.v. County of Riverside (2003) 106 Cal.App.4th 1285 (hereafter Morelli), the County argues that the trial court correctly found that it had no duty to meet and confer because RSA failed to establish that the County had a binding past practice. Nothing in the statute, however, requires that the employee organization must show a binding past practice in order to trigger the meet-and-confer requirements. In Morelli, because the plaintiffs claimed that the County was required to meet and confer based on a change in its employment practices, the plaintiffs had to show that the agency in fact operated under a binding past practice. (See id. at p. 1290.) The Morelli case, however, did not suggest that section 3505 applies only to changes in employment practices, rather than other decisions, such as those involving the adoption of an entirely new practice or policy.

Finally, the County argues that Madrigals hearing fell within the exception to the meet-and-confer requirement because it involved the consideration of the merits, necessity, or organization of any service or activity provided by law or executive order. ( 3504.) As stated above, the purpose of this exception was to exclude fundamental managerial or policy decisions from the mandatory meet-and-confer requirement. (Claremont Police, supra, 39 Cal.4th at p. 632; Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 938.) The question of what procedures to afford employees or former employees during an administrative appeal differs qualitatively from the policy questions involved in other cases where this exception has been applied. (See, e.g., SanJose Peace Officers Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, 947 (department regulation on the use of deadly force); Berkeley Police Assn., supra, at p. 937 (rules to comply with a city ordinance to ensure public participation in proceedings to address public complaints); see also N.L.R.B. v. Royal Plating & Polishing Co. (3d Cir. 1965) 350 F.2d 191, 196 (companys decision to shut down for economic reasons). This case did not involve a managerial or policy decision. Although the County provided a hearing to comply with a court order, the questions in this case concerned the nature of the hearing and the procedural protections to be afforded to employees. The court mandated a hearing, but the County dictated the procedure for the hearing by denying Madrigals request for sworn testimony, cross-examination, an independent decision-maker, and a written statement of decision. As noted by RSA, such matters historically have been resolved through the collective bargaining process between RSA and the County. In particular, the County voluntarily met and conferred with RSA over the appropriate procedures for an administrative hearing for permanent employees. It would be arbitrary and inconsistent to find that these types of questions are now outside the scope of representation under the exception in section 3504. At least, at this point, the County has failed to provide adequate grounds for drawing such a conclusion. Although the trial court found these alternative arguments persuasive, our independent review of the law and facts involved in this case shows them to be largely without merit.

As discussed above, however, the County correctly notes that Madrigals specific situation was unusual and the remedy afforded by the courts applied only to him. RSA repeatedly asserts that the County had a duty to meet and confer concerning the proper procedures for this first-ever liberty-interest hearing under section 3304, subdivision (b). It may be safe to say that Madrigals situation warranted the first-ever and last-ever liberty-interest hearing under section 3304, subdivision (b). While we are not suggesting that other probationary employee would not be entitled to a liberty-interest hearing in the future, it would not be a hearing under section 3304, subdivision (b), and it would not be based on the facts in this case.

We conclude that the County had no duty to meet and confer with RSA to discuss the procedures for an administrative appeal for probationary employees under section 3304, subdivision (b).

Disposition

The judgment is affirmed. The County shall recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/Hollenhorst

J.

s/King

J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

^[1] All further statutory references will be to the Government Code unless otherwise stated.

^[2] The trial courts decision was upheld in our unpublished opinion, Madrigal v. County of Riverside(E037549), filed on October 19, 2005.

^[3] For the sake of convenience, we will continue to refer to all the respondents as the County.