County of Orange (PERB 2657M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATION OF ORANGE COUNTY
DEPUTY SHERIFFS,
Charging Party,
v.
COUNTY OF ORANGE,
Respondent.
Case No. LA-CE-1101-M
PERB Decision No. 2657-M
July 15, 2019
Appearances: Olins & Chaikin, by Adam Chaikin, Attorney, for Association of Orange
County Deputy Sheriffs; Teri L. Maksoudian, Supervising Deputy, for County of Orange.
Before Banks, Krantz, and Paulson, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on cross exceptions by the County of Orange (County) and the Association of
Orange County Deputy Sheriffs (Association) to a proposed decision by an administrative law
judge (ALJ). In its exceptions, the County argues PERB lacks jurisdiction over the
Association’s claims because the Association’s members are peace officers pursuant to Penal
Code section 830.1. For its part, the Association excepts to the ALJ’s conclusion that the
County did not did violate the Meyers-Milias-Brown Act (MMBA)1 when it unilaterally
changed an ordinance concerning the involvement of the County’s legal counsel with regard to
critical incidents and allegations of employee misconduct. The proposed decision found that
the specific changes at issue were outside the scope of representation.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

The Board has reviewed the parties’ exceptions and supporting briefs and the entire
record in this matter in light of applicable law. Based on that review, we affirm the proposed
decision for the reasons set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
The parties do not dispute the relevant facts. The Association is the exclusive
employee organization representing the County’s Peace Officer Unit and Supervising Peace
Officer Unit. At the time of the evidentiary hearing in this matter, the two units in aggregate
contained approximately 1,808 employees, 1,693 of whom were peace officers pursuant to
Penal Code section 830.1. The remaining 115 bargaining unit employees were not peace
officers.
In 2008, the County passed an ordinance to create the Office of Independent Review
(OIR). The ordinance requires that OIR have an executive director, who must be an attorney,
staff attorneys, and administrative support staff. It provides that OIR will have an attorney-
client relationship with the County and the Sheriff-Coroner. The ordinance directs OIR to
advise the Sheriff-Coroner regarding in-custody incidents involving death or serious injury and
complaints against law enforcement personnel concerning specified topics. It provides specific
direction about how OIR will access confidential information and how it will advise County
personnel. The ordinance prohibits OIR from using subpoenas, incurring expenses without the
authorization of the Board of Supervisors, or releasing any confidential or privileged
information unless specifically required by the ordinance or a court order.
On October 16, 2015, the County notified the Association that it was contemplating
changes to the OIR, including extending its authority to include the District Attorney’s Office.
On October 23, the Association sent the County a letter asserting that the decision and effects
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of having OIR cover the District Attorney’s Office, as well as changes to oversight of the
Sheriff’s Department, were matters within the scope of representation.
On December 8, 2015, the County recommended the Board of Supervisors adopt
specific changes to the OIR ordinance. Those changes included expanding its authority to
include the District Attorney’s Office and other County departments, requiring OIR staff to be
County employees instead of contractors, giving OIR the same access to confidential records
as County Counsel, changing how the County selects OIR’s executive director, and changing
how OIR staff advise County personnel. The changes to the ordinance also provided that “no
review or critique by the OIR of a completed internal affairs investigation or the conclusions of
an internal investigation may be used as the basis for taking punitive action against an
employee,” and that “OIR is not authorized to affect the wages, hours, or working conditions
of any County employee represented by a recognized employee organization.” The County
adopted the proposed changes on December 15, 2015. The County adopted and implemented
the changes without meeting and conferring with the Association over the decision or its
effects.
The Association filed an unfair practice charge on June 2, 2016, and the Office of the
General Counsel issued a complaint against the County on July 19. The complaint alleged the
County changed the ordinance without giving the Association an opportunity to meet and
confer over the decision or its effects. On November 17, the ALJ issued a subpoena duces
tecum for documents reflecting OIR recommendations or critiques made to the Sheriff’s
department or District Attorney’s office regarding investigations of employee misconduct. On
November 21, the County filed a petition to revoke the subpoena on the grounds of attorney-
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client privilege and work product. On December 6, the County filed a motion to dismiss on the
grounds PERB lacked jurisdiction pursuant to MMBA section 3511.
On December 12, the ALJ held a hearing at which the parties entered a joint stipulation
and exhibits into evidence. The ALJ conducted an in camera review of the documents
responsive to the disputed subpoena and concluded they were subject to attorney-client
privilege. Accordingly, he granted the petition to revoke the subpoena. The ALJ deferred
ruling on the motion to dismiss until after briefing.
The proposed decision found that PERB has jurisdiction over this dispute, relying on
County of Santa Clara (2015) PERB Decision No. 2431-M (Santa Clara), in which the Board
found it has authority to resolve charges brought by employee organizations representing or
seeking to represent bargaining units that include, in whole or in part, persons who are peace
officers. (Id., p. 15.) On the merits, the ALJ relied in part on City of Pittsburg (2003) PERB
Decision No. 1563-M, to find the County had no legal obligation to meet and confer with the
Association about the disputed changes to the OIR ordinance.2
DISCUSSION
Jurisdiction
The Legislature expanded PERB’s jurisdiction in 2000 by passing Senate Bill 739
(SB 739), which enacted Government Code section 3509. (Stats. 2000, ch. 901, § 8; Paulsen
v. Local No. 856 of Internat. Bhd. of Teamsters (2011) 193 Cal.App.4th 823, 829 (Paulsen).)
2 On November 29, 2017, the Association filed a motion to augment the record to
include a December 3, 2015 memorandum and the County filed opposition on December 15,
2017. We deny the motion because the supporting declarations do not establish that the
evidence was not previously available, that it could not have been discovered prior to the
hearing with the exercise of due diligence, or that the memorandum was submitted within a
reasonable time of discovery; and also because we find the memorandum would not impact or
alter the decision. (See County of Riverside (2010) PERB Decision No. 2132-M, p. 6.)
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Section 3509 provides in part, “A complaint alleging any violation of [the MMBA] . . . shall be
processed as an unfair practice charge by [PERB]. The initial determination as to whether the
charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate
the purposes of this chapter, shall be a matter within the exclusive jurisdiction of [B]oard.”
“This enactment removed ‘from the courts their initial jurisdiction over MMBA unfair practice
charges’ [] and vested such jurisdiction in PERB.” (City of San Jose v. Operating Engineers
Local Union No. 3 (2010) 49 Cal.4th 597, 605 quoting in part Coachella Valley Mosquito &
Vector Control Dist. v. California PERB (2005) 35 Cal.4th 1072, 1089 (Coachella).)
SB 739 also made exceptions to this expansion of PERB’s authority, including enacting
section 3511, which reads, “[t]he changes made to Sections 3501, 3507.1, and 3509 of the
Government Code by legislation enacted during the 1999-2000 Regular Session of the
Legislature shall not apply to persons who are peace officers as defined in Section 830.1 of the
Penal Code.” In Coachella, the Supreme Court acknowledged that “[e]xempt from the PERB’s
jurisdiction under the MMBA are peace officers, management employees, the City of Los
Angeles, and the County of Los Angeles.” (Coachella, supra, 35 Cal.4th at p. 1077, fn. 1,
citing Gov. Code, §§ 3509, subds. (d)-(e), 3511.) The Court did not mention employee
organizations representing peace officers as exempt. Likewise, in Paulsen, the court treated
section 3511 as exempting from PERB jurisdiction peace officers themselves, not their
employee organizations. The Court of Appeal explained: “Plaintiffs are not exempt from
PERB jurisdiction pursuant to Government Code [section] 3511, because they are defined as
‘peace officers’ in Penal Code [section] 830.5[, subdivision] (a), not Penal Code [section]
830.1.” (Paulsen, supra, 193 Cal.App.4th at p. 828.)
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In Santa Clara, we held that PERB has authority to hear charges brought by employee
organizations, “including employee organizations representing or seeking to represent units
including persons who are peace officers.” (Santa Clara, supra, PERB Decision No. 2431-M,
p. 15.) We explained that “MMBA section 3511 precludes jurisdiction only with respect to
charges brought by peace officers, not employee organizations.” (Ibid.)
The County argues that PERB lacks jurisdiction because, in the County’s view,
Government Code section 3511 deprives PERB of jurisdiction over claims “impacting” Penal
Code section 830.1 peace officers. The County attempts to buttress its position by parsing the
relative impacts of the change at issue to the Association’s peace officer and non-peace officer
members. But this inquiry into relative impact is not supported by the plain language of the
statute, the context of the statutory framework as a whole, or the circumstances, history, and
background surrounding the enactment of section 3511. Instead, for the reasons set forth
below, we reaffirm and further explain the statutory interpretation the Board adopted in Santa
Clara: While Government Code section 3511 excludes from PERB’s jurisdiction claims
brought by Penal Code section 830.1 peace officers, PERB has jurisdiction over claims
brought by employee organizations covered by the MMBA, including those that represent or
seek to represent bargaining units composed partially or entirely of Penal Code 830.1 peace
officers.
In interpreting the statute, we apply our expertise in the field of labor relations and the
established rules of statutory interpretation. (Cumero v. PERB (1989) 49 Cal.3d 575, 586-87;
San Mateo City Sch. Dist. v. PERB (1983) 33 Cal.3d 850, 856.) The fundamental task is to
ascertain the Legislature’s intent to effectuate the statute’s purpose. (Smith v. Superior Court
(2006) 39 Cal.4th 77, 83.) We must first consider the language of the statute itself, giving the
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words used their ordinary meaning and construing the text in the context of the statute as a
whole and the overall statutory scheme, giving significance to every word, phrase, sentence,
and part of the statute. (Ibid.) We must give effect and meaning to all parts of the law if
possible and avoid an interpretation that renders statutory language superfluous. (Agnew v.
State Bd. of Equalization (1999) 21 Cal.4th 310, 330; Sampson v. Parking Serv. 2000 Com,
Inc. (2004) 117 Cal.App.4th 212, 226.)
If statutory language is ambiguous, “we consider a variety of extrinsic aids, including
the statutory context and the circumstances of the statute’s enactment” and “other evidence of
the Legislature’s intent, such as the history and background of the [provision].” (Weiss v.
People ex rel. Dep't of Transportation (2018) 20 Cal.App.5th 1156, 1168; Huntington
Continental Townhouse Assn., Inc., supra, 230 Cal.App.4th at pp. 598-99.) But we do not
“countenance efforts to create an ambiguity by reference to extrinsic evidence; outside sources
simply do not come into play when the language of a statute is clear and unambiguous.”
(People v. Dunbar (2012) 209 Cal.App.4th 114, 117.)
The plain language of section 3511 exempts from PERB’s jurisdiction only natural
persons who are peace officers. “[P]ersons who are peace officers as defined in Section 830.1
of the Penal Code” refers only to natural persons, not employee organizations, because only
natural persons are capable of being peace officers. Penal Code section 830.1 lists peace
officers by classification or title, such as “deputy sheriff” and “police officer.” Since section
3511 refers to section 830.1, it follows that section 3511 applies to the natural persons listed in
that section, not employee organizations.
The overall statutory scheme of the MMBA supports this interpretation of section 3511.
The MMBA’s distinction between public employees, who are natural persons, and other parties
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is central to how the statute governs labor relations. The MMBA provides for different roles,
rights, and relationships by and between public employees,3 employee organizations,4 and
public agencies.5 Some sections govern relationships between public employees and public
agencies even absent an employee organization. For example, section 3502 provides that
public employees may “represent themselves individually in their employment relations with
the public agency.” (Gov. Code, § 3502 [unchanged since added by Stats. 1961, ch. 1964,
p. 4,142, § 1]; Relyea v. Ventura Cty. Fire Protection Dist. (1992) 2 Cal.App.4th 875, 883
[finding section 3502 confers on public employees a right to raise personal concerns with their
employer through an existing procedure].) Other sections apply to the relationship between
employee organizations and public agencies, or between public employees and employee
organizations. (See, e.g., section 3505 (“. . . a public agency. . . shall meet and confer in good
faith . . . with representatives of” “employee organizations”); section 3506 (“. . . employee
3 “‘Public employee’ means any person employed by any public agency, including
employees of the fire departments and fire services of counties, cities, cities and counties,
districts, and other political subdivisions of the state, excepting those persons elected by
popular vote or appointed to office by the Governor of this state.” (Gov. Code, § 3501,
subd. (d).)
4 (a) “‘Employee organization’ means either of the following: (1) Any organization that
includes employees of a public agency and that has as one of its primary purposes representing
those employees in their relations with that public agency. (2) Any organization that seeks to
represent employees of a public agency in their relations with that public agency.” (Gov.
Code, § 3501, subd. (a).)
5 “Except as otherwise provided in this subdivision, ‘public agency’ means every
governmental subdivision, every district, every public and quasi-public corporation, every
public agency and public service corporation and every town, city, county, city and county and
municipal corporation, whether incorporated or not and whether chartered or not. As used in
this chapter, ‘public agency’ does not mean a school district or a county board of education or
a county superintendent of schools or a personnel commission in a school district having a
merit system as provided in Chapter 5 (commencing with Section 45100) of Part 25 and
Chapter 4 (commencing with Section 88000) of Part 51 of the Education Code or the State of
California.” (Gov. Code, § 3501, subd. (c).)
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organizations shall not . . . discriminate against public employees because of their exercise of
their rights under Section 3502.”).)
The Legislature acknowledged these differences in the drafting history of section 3511.
In an early draft of section 3511, the bill proposed excluding from PERB’s jurisdiction, “any
recognized employee organization representing persons who are peace officers[.]” (Assem.
Amend. to Sen. Bill No. 739 (1999-2000 Reg. Sess.) August 30, 1999, § 3511.) But in the
version ultimately enacted, the Legislature struck the reference to “any recognized employee
organization representing persons who are peace officers” and replaced it with “persons who
are peace officers. . . .” (Compare Assem. Amend. to Sen. Bill No. 739 (1999-2000 Reg.
Sess.) August 30, 1999, § 3511 with Stats. (2000) ch. 901, § 3511.) This change demonstrates
the Legislature was aware of the difference between employee organizations that represent
peace officers and the peace officers themselves and chose to limit the language in section
3511 to the latter in the final version of the statute.
It was well-established before the advent of section 3511 that persons who are peace
officers employed by local agencies were “public employees” within the meaning of the
MMBA and could bring individual claims against employee organizations and public agencies
in superior courts. (See. e.g., Cranston v. City of Richmond (1985) 40 Cal.3d 755, 760
(Cranston); Anderson v. Los Angeles County Employee Relations Com. (1991) 229 Cal.App.3d
817, 819.) Thus, it was meaningful for the Legislature to select the word “persons” in section
3511: “Persons” corresponds to the MMBA’s definition of public employee, but not the
definitions of public agency or employee organization. (Compare Gov. Code, § 3501,
subd. (d) (“‘Public employee’ means any person. . .”) with Gov. Code, § 3501, subd. (a)
(“‘Employee organization’ means. . . any organization. . .”) and Gov. Code, § 3501, subd. (c)
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(“‘public agency’ means every governmental subdivision. . .) (emphasis added).) Had the
Legislature intended to exclude both persons who are peace officers and employee
organizations representing peace officers, it could have done so. (Santa Clara, supra, PERB
Decision No. 2431-M, p. 16.)
It was also well established that whether a party was a public employee, employee
organization, or public agency determined that party’s standing to bring different claims at
PERB. In Oxnard School District (Gorcey and Tripp) (1988) PERB Decision No. 667, the
Board held employees lack standing to bring a claim alleging an employer did not bargain in
good faith with an employee organization. (Id. at pp. 11-12.) Likewise, in State of California
(Department of Corrections) (1993) PERB Decision No. 972-S, the Board held individual state
employees lack standing to pursue violations of sections of the Dills Act6 that protect the
collective bargaining rights of employee organizations. (Id. at pp. 3-4.) But public employees
themselves can bring claims against public employers for retaliation or discrimination on
account of their exercise of protected rights, as well as against employee organizations for
violating the duty of fair representation. (Hacienda La Puente Unified School District (1988)
PERB Decision No. 685, pp. 13-14; Service Employees International Union, Local 99
(Vercher) (1997) PERB Decision No. 1196, adopted warning letter, p. 2.) Thus, the
Legislature’s decision to exclude from PERB’s jurisdiction the claims of natural persons who
are peace officers is congruent with the statutory scheme.
Having peace officers file their individual MMBA claims in court, while their labor
organizations and employers file MMBA claims with PERB, aligns with the Legislature’s
specialized treatment of peace officers’ individually-held employment rights and obligations.
6 The Dills Act is codified at Government Code section 3512 et seq.
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For instance, at the time of the 1999–2000 legislative session, the Public Safety Procedural Bill
of Rights Act (POBR) provided individual employment rights for peace officers. Peace
officers themselves have standing to enforce their rights under POBR and superior courts have
initial jurisdiction over such claims. (Gov. Code, § 3309.5 subd. (c).) Employees’ claims
deriving from POBR and the MMBA, while distinct, often concern closely related topics. (See
Cranston, supra, 40 Cal.3d at p. 774 [discussing peace officer employees’ right to a
representative under POBR and the MMBA]; Henneberque v. City of Culver City (1983) 147
Cal.App.3d 250, 253–54 [discussing concurrent violations of POBR and the MMBA with
regard to employee discipline].) Within this context, section 3511 rationally aligned the forum
for alleged violations of peace officers’ rights under the MMBA with those for their claims
arising under POBR.
Subsequent amendments to the MMBA also support our interpretation of section 3511.
In 2011, the Legislature enacted a procedure for the use of factfinding panels to aid in the
resolution of bargaining disputes between employee organizations and public agencies not
subject to binding arbitration. (Stats. 2011, ch. 680, § 3505.4.) Newly added section 3505.4
requires PERB to select a chairperson for these factfinding panels without regard to whether
the employee organization represents peace officers. By the County’s interpretation of
section 3511, the Legislature curiously requires PERB’s involvement in factfinding panels for
employee organizations representing peace officers, but otherwise excludes them from PERB’s
jurisdiction. Rather, section 3505.4 is consistent with both the Legislature’s understanding of
the distinction between persons who are peace officers and employee organizations whose
members are peace officers; and PERB’s jurisdiction over the latter.
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The County is misplaced in its emphasis on a portion of the Legislative Counsel’s
Digest accompanying SB 739. During its movement through the Legislature, SB 739 and its
accompanying Digest went through 10 series of amendments. The last edited version of the
Digest provides in part, “The provisions of this bill would not apply to any recognized
employee organization representing peace officers. . .” (Legis. Counsel’s Dig., Sen. Bill
No. 739 (1999-2000 Reg. Sess.).) The County argues this language shows a legislative intent
for section 3511 to exclude claims by peace officers as well their employee organizations. We
note, however, that this language first appeared in the Digest accompanying the August 30,
1999 amendments to SB 739, the sixth series of amendments. (Legis. Counsel’s Dig., Assem.
Amends. to Sen. Bill No. 739 (1999-2000 Reg. Sess.) August 30, 1999, p. 4.) Those
amendments proposed a very different section 3511 that would have read,
The changes made to Sections 3501, 3502.5, 3505.2, 3505.4,
3507.1, 3508.5 and 3509 of the Government Code by legislation
enacted during the 1999 portion of the 1999-2000 Regular
Session of the Legislature shall not apply to any recognized
employee organization representing persons who are peace
officers as defined in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2 of the Penal Code.
(Assem. Amend. to Sen. Bill No. 739 (1999-2000 Reg. Sess.) August 30, 1999, § 3511.)
The same Digest description and proposed statutory language appeared in the
September 10, 1999 amended version of the bill. (Assem. Amend. to Sen. Bill No. 739 (1999-
2000 Reg. Sess.) September 10, 1999, § 3511; Legis. Counsel’s Dig., Assem. Amend. to Sen.
Bill No. 739 (1999-2000 Reg. Sess.) September 10, 1999, p. 4.) The next activity on the bill
took place several months later on June 6, 2000. (Assem. Amend. to Sen. Bill No. 739 (1999-
2000 Reg. Sess.) June 6, 2000, § 3511.) That amendment introduced the version of section
3511 the Legislature ultimately adopted, striking the reference to “any recognized employee
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organization representing persons who are peace officers” and replacing it with “persons who
are peace officers. . .” (Id.) But the Legislative Counsel’s Digest that accompanied this
amendment did not actually reflect the amendment and still used the language “recognized
employee organization representing peace officers.” (Legis. Counsel’s Dig., Assem. Amend.
to Sen. Bill No. 739 (1999-2000 Reg. Sess.) June 6, 2000, pp. 4-5.) The Legislature did not
revisit section 3511 again before adopting SB 739. (Stats. (2000), ch. 901, § 3511.)
In light of this legislative history, we view the holdover Legislative Counsel’s Digest
language as being of dubious value. Legislative Counsel’s Digests do not have the force of
law. (City of Sacramento v. Public Employees’ Retirement System (1994) 22 Cal.App.4th 786,
795.) In California Teachers’ Assn v. Governing Board (1983) 141 Cal.App.3d 606, the Court
of Appeal was “confronted with a statute which was enacted with an inaccurate Legislative
Counsel’s Digest.” (Id. at p. 613.) The court explained that where the language of the statute
cannot be reconciled with the Digest’s interpretation, the statutory language prevails. Thus,
where Digests are inaccurate, we are not bound by the misinformation delivered to the
Legislature. (People v. Cruz (1996) 13 Cal.4th 764, 780.) We note the language in the
original Digest directly mirrored the language in proposed statutory text as it existed at that
time. Thus, the failure of the Digest to account for the June 30, 2000, change in the proposed
statutory text appears more likely an oversight than instructive for legislative analysis.
Moreover, the Digest’s description of section 3511 cannot be reconciled with the use of the
term “persons who are peace officers,” which, as discussed above, can only refer to natural
7
persons.
7 In the years that followed the enactment of section 3511, this holdover language from
the Digest confused certain parties. For example, El Dorado County Deputy Sheriff's
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The Court of Appeal’s footnote in El Dorado does not change our analysis. There, the
Court of Appeal noted, “The Public Employment Relations Board (PERB) is an independent
state administrative agency created by the Educational Employment Relations Act. (Gov.
Code, §§ 3540–3548.) But labor disputes relating to peace officers, such as this dispute, are
not subject to PERB jurisdiction. (Gov. Code, § 3511.) Nevertheless, we may look to PERB
authority for guidance in addressing the issues in this case.” (El Dorado, supra, 244
Cal.App.4th at p. 953, fn. 1 (emphasis added.) The County takes this footnote to mean
jurisdiction under this section turns on whether a dispute relates to or impacts peace officers.
The County reads too much into the court’s passing comment. The single sentence in
the court’s footnote mentioning section 3511 is dicta because it was an unnecessary
explanatory comment. “Only statements necessary to the decision are binding precedents. . . .”
(Western Landscape Construction v. Bank of America (1997) 58 Cal.App.4th 57, 61.) “The
doctrine of precedent, or stare decisis, extends only to the ratio decidendi of a decision, not to
supplementary or explanatory comments which might be included in an opinion. To determine
the precedential value of a statement in an opinion, the language of that statement must be
compared with the facts of the case and the issues raised.” (Ibid.) Thus, “[a] decision is
Association v. County of El Dorado (2016) 244 Cal.App.4th 950 (El Dorado) reached the
appellate court after a union brought its claim in court, and the employer-defendant apparently
did not contest jurisdiction. Various attempts have been made to resolve the confusion. (See
Sen. Bill No. 656, vetoed by Governor, Oct. 11, 2009, Sen. Final Hist. (2009-2010 Reg. Sess.),
p. 470; Assem. Bill No. 2305, vetoed by Governor, Sep. 28, 2018, Assem. Weekly Hist. (2017-
2018 Reg. Sess.), p. 762.) In City of Lompoc, we heard oral arguments related to peace
officers and section 3511, but the parties reached a settlement before we issued a decision on
the merits. (City of Lompoc (2013) PERB Decision No. 2328-M, pp. 2-3.) However, at least
since PERB clarified the matter in Santa Clara, both unions and employers have filed cases
with PERB, even though parties have occasionally engaged in forum shopping. (See, e.g.
County of Riverside (2018) PERB Decision No. 2596-M, pp. 4-5, fn. 5 [referencing one
employer that filed an affirmative charge with PERB, while still contesting jurisdiction in one
filed against it].)
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authority only for the point actually passed on by the court and directly involved in the case.”
(Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985.) The court’s footnote
appears at the end of the second paragraph of the decision, where the court begins to lay out
the procedural background. Its purpose was to acknowledge it is appropriate for courts to look
to PERB decisions for guidance, not to change the law regarding PERB’s jurisdiction, which
was not at issue in El Dorado. It is quite doubtful the court would have broken with the
Supreme Court’s characterization of section 3511 in Coachella as exempting “peace officers,”
and not their employee organizations, from PERB jurisdiction without mentioning that case.
Thus, the Court’s brief mention of section 3511 is not informative in interpreting section
3511.8
We put little weight on the fact that courts have heard disputes brought by employee
organizations that represent peace officers, where no party briefed jurisdictional issues and the
courts did not address jurisdiction. It is axiomatic that cases are not authority for propositions
not considered. (Riverside Cty. Sheriff’s Dep’t v. Stiglitz (2014) 60 Cal.4th 624, 641.) The
County draws attention in particular to Claremont Police Officers Association. v. City of
Claremont (2006) 39 Cal.4th 623 (Claremont), where the Supreme Court considered whether
actions by the City violated the MMBA. The County emphasizes the decision observes that
the plaintiff—an employee organization—initiated the case by way of writ of mandate in a
superior court. (Claremont, supra, 39 Cal.4th at p. 629.) But the decision does not discuss this
procedural detail any further, nor would it have had much reason to do so, as there is no
8 We likewise give little weight to the similar footnote in the Attorney General’s
Opinion granting leave to challenge a local initiative in quo warranto, because it is brief dicta
and also because the relationship between PERB and quo warranto proceedings had yet to be
clarified by the Court of Appeal. (96 Cal. Op. Att’y Gen. 1 (2013); see City of Palo Alto v.
Pub. Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1318-20.)
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indication it was raised by either party and it does not concern the jurisdiction of the Supreme
Court or Court of Appeal, which are unaffected by section 3511. (See Gov. Code, § 3509.5.)
Instead, we find that the plain language of section 3511, the context of the statutory framework
as a whole, and the circumstances, history, and background surrounding the enactment of
SB 739, compel our conclusion that section 3511 exempts from our jurisdiction only charges
brought by natural persons who are peace officers.
Changes to OIR Ordinance9
The Complaint alleges the County made three unilateral changes to the OIR statute in
violation of the MMBA. Specifically, the amended ordinance adopted recommendations to:
(a) 	Amend the jurisdiction of the OIR to additionally include
oversight and review of the . . . Office of the District Attorney.
(b) 	Authorize the OIR to . . . work with County Counsel,
County Risk Management and relevant Department heads to
review specific incidents implicating significant risk and/or
liability to the County and participate in corrective actions.”
(c) 	Authorize the OIR to . . . in connection with the relevant
County Department heads, provide ongoing legal counsel and
advise [sic] for internal inquiries and investigations into alleged
performance issues and/or misconduct of employees.
To establish a prima facie case for an unlawful unilateral change, a charging party must
show that: (1) the employer took action to change existing policy; (2) the policy change
concerned a matter within the scope of representation; (3) the action was taken without giving
the exclusive representative notice or opportunity to bargain over the change; and (4) the
9 The Association also excepts to the ALJ’s decision to revoke the subpoena duces
tecum based on his in camera review and determination the documents sought were protected
by the attorney-client privilege. We affirm the ALJ’s determination because no party has
caused the disputed documents to be lodged with the Board and we rely on the ALJ’s
description of the documents as advisory communications from an attorney to his client.
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change has a generalized effect or continuing impact on terms and conditions of employment.
(County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13.)
This dispute centers on the second element, i.e., whether the change concerned a matter
within the scope of representation. Under the MMBA, the scope of representation includes all
matters relating to employment conditions and employer-employee relations, including wages,
hours, and other terms and conditions of employment. (MMBA, § 3504.) Fundamental
managerial decisions regarding the merits, necessity, or organization of public services,
however, are outside the scope of representation and therefore not subject to the MMBA’s
meet-and-confer requirement. (Ibid.)
In its exceptions, the Association argues the changes to the OIR ordinance affect the
discipline process because OIR attorneys can “shape” discipline by giving County leaders legal
advice, thus changing the disciplinary procedure. We disagree. Rather, we find the disputed
changes to the ordinance concern only management’s direction to its legal counsel for the
performance of legal services and are thus outside the scope of representation.
In City of Pittsburg, a union alleged the City committed an unlawful unilateral change
when it hired a professional consultant to advise it about how to respond to grievances filed by
the union. (City of Pittsburg, supra, PERB Decision No. 1563-M adopting warning letter,
pp. 1-2.) The union argued the City’s action changed the parties’ grievance processing
procedure. (Id. at p. 1.) We found the City’s decision to “employ[] a consultant is a matter of
managerial prerogative that is not negotiable. Therefore, no unilateral change has taken
place.” (Id. at p. 2, adopting warning letter at p. 3.)
The citizen review board cases cited by the Association are inapposite because legal
advice is of a different character than the recommendations or findings of a quasi-judicial
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body. (Cf. Brown v. City of Berkeley (1976) 57 Cal.App.3d 223 [holding that initiative
ordinance purporting to empower a review board to recommend disciplinary action conflicted
with the charter’s requirement that the city manager perform that function]; Caloca v. County
of San Diego (1999) 72 Cal.App.4th 1209 [holding that under POBR, sheriff’s deputies were
entitled to an administrative appeal of decision of citizen review board that could itself sustain
misconduct and prepare a written report summarizing its investigation and findings].)
We conclude that the directions an employer gives its legal counsel about how to
provide it with legal advice is so attenuated from the employment relationship that it is outside
the scope of representation. It is immaterial that the County chose to memorialize its direction
to counsel in an ordinance or to create a legal office separate from its county counsel.
Ultimately, the OIR ordinance functions much like a contract for legal services and concerns
only how OIR attorneys and staff will provide the County with legal advice; it does not change
or have effects on the disciplinary procedure.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-1101-M are
DISMISSED.
Members Krantz and Paulson joined in this Decision.
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