CITY OF LOS ANGELES v. SUPERIOR COURT OF LOS ANGELES COUNTY









Filed 3/25/11




CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

CITY OF LOS ANGELES and DOES 1 through 50, inclusive, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondents, ENGINEERS & ARCHITECTS ASSOCIATION, Petitioner and Real Party in Interest.

B228732 (Los Angeles County Super. Ct. No. BS126192)

ORIGINAL PROCEEDINGS in mandate. Gregory W. Alarcon, Judge. Petition for writ of mandate is granted and remanded to the trial court for further proceedings.
Carmen A. Trutanich, City Attorney, Zna Portlock Houston, Assistant City Attorney, Janis Levart Barquist and Jennifer Maria Handzlik, Deputy City Attorney, for Petitioner, City of Los Angeles.
Kronick, Moskovitz, Tiedemann & Girard, David W. Tyra and Meredith H. Packer for League of California Cities as Amicus Curiae on behalf of City of Los Angeles.
Levy, Stern, Ford & Wallach, Adam N. Stern and Lewis N. Levy for Real Party in Interest, Engineers & Architects Association.
Rothner, Segall & Greenstone, Ellen Greenstone and Jonathan Cohen for American Federation of State, County and Municipal Employees, District Council 36, as Amicus Curiae on behalf of Real Party in Interest, Engineers & Architects Association.

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Faced with a deficit exceeding $500 million and an impending cash flow crisis, the Mayor and City Council of Los Angeles (City) approved an ordinance directing the Mayor to adopt a plan to furlough City civilian employees for up to 26 days per fiscal year. The Mayor adopted such a plan, and many employees filed grievances challenging the furloughs to which they were subjected. The grievances were denied and the employees, supported by their union, the Engineers and Architects Association (Union), requested arbitration of the grievances. When the City refused to arbitrate, the Union filed a petition to compel arbitration of over 400 such grievances. Concluding that the grievances were arbitrable, the trial court granted the petition to compel. The City challenged the order compelling arbitration by petition for writ of mandate. We issued an order to show cause and now grant the petition. While there are questions as to whether the issue of furloughs is grievable under the terms of the controlling Memoranda of Understanding (MOUs),^[1] we conclude that any agreement to arbitrate the issue of furloughs would constitute an improper delegation of discretionary policymaking power vested in the City Council.
FACTUAL AND PROCEDURAL BACKGROUND
On May 12, 2009, Mayor Villaraigosa sent a letter to the City Council requesting the City Council to declare a fiscal emergency and adopt an urgency ordinance permitting reduced workweeks of less than 40 hours. The Mayor indicated his intent to propose and implement a plan of mandatory work furloughs for virtually all civilian employees of the City. In response to the Mayor's request, the City Council passed a resolution declaring an emergency and directing the Mayor to adopt a furlough plan. The resolution was approved by the Mayor on May 22, 2009, and thus became an ordinance.^[2]
The resolution set forth the fiscal circumstances which justified the declaration of emergency. These included: (1) a $529 million general fund deficit for the 2009-2010 fiscal year; (2) ongoing revenue sources had plunged nearly $300 million; (3) continued declines in property tax revenues were expected; (4) taxes could not be raised; (5) the deficit was expected to grow to over $1 billion by the end of the 2010‑2011 fiscal year if no changes were made; (6) 80% of the City's expenses were linked to salaries and benefits; (7) if no changes were made, the City would face a cash flow crisis; and (8) if the City could not borrow funds, it would be out of cash by the end of August 2009. As a result of these and other circumstances, the City declared a fiscal emergency.
The fiscal emergency was declared pursuant to Government Code section 3504.5 and Los Angeles Administrative Code section 4.850. These sections relate to the City's obligation to consult with employee unions prior to the adoption of ordinances relating to matters within the scope of the unions' representation, with an exception allowing for consultation after the adoption of such an ordinance, in cases of â€