Sac. Police Officers Assn. v. City of Sac.

-1-
Filed 3/30/04 Sacramento Police Officers Assn. v. City of Sacramento CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
SACRAMENTO POLICE OFFICERS
ASSOCIATION,
Plaintiff and Appellant,
v.
CITY OF SACRAMENTO et al.,
Defendants and Appellants.
C042493
C043377
(Super. Ct. No. 02CS01054)
At the behest of the plaintiff, Sacramento Police Officers
Association (SPOA), the superior court issued a writ of mandate
directing the defendants, City of Sacramento and Sacramento
Police Department (collectively City), to “meet and confer”1
1 This is the statutory term of art in the Meyers-Milias-Brown
Act, or “MMB Act” (Gov. Code, § 3500 et seq. [undesignated
section references will be to this code]), which obligates local
agencies to negotiate in good faith with employee organizations
before changing the status quo regarding terms and conditions of
employment properly within the scope of representation.

-- 1 of 16 --

-2-
about the implementation of a policy to hire retirees as
temporary noncareer employees to remedy a short-term staffing
shortage in its police department. The superior court denied
the request of the plaintiff for reimbursement of its legal
fees.
The parties cross-appealed. We consolidated the appeals
for the purpose of consideration and argument.
We conclude that the proposal to hire annuitants in
response to an abrupt shortage in the staffing of the police
force, which could not be remedied through the ordinary
processes of recruitment and hiring, is a fundamental managerial
policy decision designed to maintain the existing level of
public safety in the community. It thus was not itself subject
to the City’s duty to meet and confer even if it represented a
change in the status quo with respect to the terms and
conditions of employment. As the proposal included the
principle that nothing in its implementation was to affect the
terms and conditions of employment of unit members, the details
of implementation were not subject to the duty to meet and
confer. If individual unit members nonetheless experienced
detriment as a result of the proposal’s implementation, these
would have been properly subject to the existing grievance
process. We thus shall reverse in case No. C042493, and dismiss
the appeal as moot in case No. C043377.
(§§ 3504, 3505.)

-- 2 of 16 --

-3-
BACKGROUND
SPOA is the recognized employee representative2 for assorted
classifications in the City police force. The negotiations over
the terms of the June 2001-June 2005 memorandum of understanding
(MOU)3 resulted in binding arbitration pursuant to Article XVIII
of the City Charter (a SPOA-sponsored and voter-enacted 1996
provision). Among the benefits that the arbitrator awarded was
significantly enhanced retirement pay, effective July 2002,
which would allow retirement at age 50 with a pension calculated
as the multiple of an employee’s years of service and 3 percent
(up to a maximum of 90 percent).
The parties expected that this jump in pension payments
would generate a spike in retirements (which was the reason for
the delayed effective date). The police department had already
been operating with fewer than its full complement of authorized
positions; effective July 2002, 44 more members of the force
retired. By September 2002, there was a shortage of nearly
16 percent (or 92 positions) in the authorized staffing for
rank-and-file police officers.
The Sacramento region has a tight “labor” market for law
enforcement officers, with the various agencies competing to
recruit laterals and new hires, or to retain existing personnel.
Immediately after the award of increased retirement benefits,
the City authorized an additional $500,000 for recruitment
2 Section 3501, subdivision (a).
3 Section 3505.1.

-- 3 of 16 --

-4-
efforts. However, unlike normal job markets, there is a lag
time between identifying the need for further personnel and the
availability of new hires, because a successful applicant must
then attend a 23-week training academy (which the Sacramento
Police Department can normally conduct twice per year with
25 cadets each). The first 2002 academy graduated 20 cadets in
June; the second anticipated 30 graduates in December. The City
also scheduled three academies that would conclude in 2003. By
virtue of these five academies, the City expected authorized
staffing to exceed 100 percent by December 2003.
In anticipation of the retirement spike, the City had
spoken with SPOA about using retirees as part-time, noncareer,
limited-term employees (as authorized under sections 5.4(a) and
6.9(b)(2) of the rules of its civil service system) to fill the
vacancies until the police department could replenish with new
recruits. The City forestalled SPOA’s inquiries about this
proposal pending the development of a citywide classification of
retiree hires. The City initiated meet-and-confer sessions
regarding the proposal for a new citywide classification in
April-May 2002; in the face of unanimous opposition from its
employee organizations, the City withdrew the proposal and left
in place the procedures for its various departments individually
to appoint part-time, noncareer employees for terms of no more
than 960 hours. In the memorandum to departmental management,
the City expressly noted that the use of retirees “shall not be
used to circumvent the civil service system or labor agreements.
Retirees shall not normally be included in minimum staffing

-- 4 of 16 --

-5-
where required, except for the purpose of backfilling regularly
scheduled staffing.” SPOA demanded that the City submit the
issue to binding arbitration.
In July 2002, the City’s personnel director prepared a
memorandum for the City Council (Council) in support of a
resolution on the issue of police staffing. By this time, five
police retirees had applied for the noncareer limited-term
appointments. She asked the Council to amend the budget
authority of the city manager to allow for the appointment of
retirees to the police force until the completion of the
scheduled academies in 18 months. She also asked the Council to
adopt “administrative principles” that “use of retirees at this
time is not to save money, block promotional opportunities[,] or
eliminate acting assignments,” consistent with the City’s
commitment “to insure that such rehires do not create
significant adverse impacts on career employees.” The Council
enacted the requested resolution at its July 30 meeting, citing
the need to provide a level of staffing necessary for the public
safety until December 2003. SPOA filed the present petition (in
apparent anticipation of this official action) on July 24.
SPOA submitted a declaration with its reply in September
2002 that recounted several anecdotal examples of the City’s use
of retirees. SPOA claimed that in each instance retirees had
displaced unit members from acting assignments in specialty and
supervisory positions, or had interfered with seniority rights.
The City did not contradict the substance of these allegations;
after attempting unsuccessfully to exclude the declaration on

-- 5 of 16 --

-6-
various evidentiary grounds, the City suggested that if there
were such instances, they could be addressed appropriately
through filing grievances.
In its ruling, the trial court asserted the City had a duty
to meet and confer before putting the retiree resolution into
effect. The policy represented a change in the status quo, as
the City admitted it had never before used retirees to fill a
vacancy in a sworn position in the unit. The policy affected
the working conditions of unit members, because it limited
overtime and the opportunity to work in an acting capacity in
specialty and supervisory positions (which in turn could limit
promotional opportunities). The court declined to give any
weight to the City’s claim of an exigent need to respond to
staffing shortages; it unaccountably found that the decision to
appoint retirees to positions for which lateral or cadets were
otherwise unavailable did not constitute a review of the level
of public protection, and the independent arbitrator’s award of
heightened inducements to retire in June 2001 provided enough
time for the City to have prepared for the shortage.
DISCUSSION
I. C042493
A
Public agencies, as noted above, have the obligation under
section 3505 to meet and confer (in place of which we will use
the more succinct term “bargain”) about any proposed change in
the status quo regarding the terms and conditions of employment
if the change is within the scope of representation as defined

-- 6 of 16 --

-7-
in section 3504. Determining the ambit of this obligation is
not as simple as it might seem.
As an initial matter, the change in the status quo
must have a significant impact on the terms and conditions
of employment, either through adverse effects on specific
employees or through a departure from established past practice.
(Building Material & Construction Teamsters’ Union v. Farrell
(1986) 41 Cal.3d 651, 659 (Farrell); Riverside Sheriff’s
Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285, 1290
(Riverside Sheriff’s Assn.).) The party claiming a departure
from past practice has the burden of proving the existence of an
unequivocal and clearly enunciated policy, which both parties
accepted as binding over a reasonable period of time.
(Riverside Sheriff’s Assn., supra, 106 Cal.App.4th at p. 1291.)
In the trial court, the parties disputed whether any members of
the SPOA unit in fact experienced detrimental impacts from the
nascent retiree program. SPOA also asserted that the
appointment of retirees to positions in its unit departs from
past practice, while the City argued that its present proposal
is consistent with a practice of appointing retirees to civilian
positions in the unit. Rather than resolve these disputes on
the anecdotal evidence adduced in the trial court (especially as
the parties do not focus on these issues on appeal), we will
assume that the retiree proposal represents a change in the

-- 7 of 16 --

-8-
status quo and simply proceed to their primary argument
regarding the limits of the scope of representation.4
Section 3504 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” within the scope of representation. However,
section 3504 expressly excludes “consideration of the merits,
necessity, or organization of any service or activity provided
by law or executive order.” These principles are arguably
“vague” and “overlapping”; we thus must not read either too
broadly, because each could swallow the entirety of the other.
(Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608,
615 (Fire Fighters Union).)
As section 3504 tracks the National Labor Relations Act
(NLRA) and court decisions limiting the scope thereunder of a
private employer’s obligation to bargain, it is generally proper
to cite federal precedent (Farrell, supra, 41 Cal.3d at p. 658 &
fn. 2 [which also suggests in dictum that duty to bargain might
be broader under MMB Act than under NLRA]), and consequently
many if not all of the cases decided under the MMB Act have
federal foundations. It is not always easy, however, to
translate from the private to the public sector. (San Jose
4 We thus need not address the argument of amicus curiae League
of California Cities that there cannot be a departure from past
practice because the City had general authority under its civil
service rules to appoint retirees to any position, which the MOU
did not derogate. (Eggert v. Pacific States S. & L. Co. (1943)
57 Cal.App.2d 239, 251.)

-- 8 of 16 --

-9-
Peace Officer’s Assn. v. City of San Jose (1978) 78 Cal.App.3d
935, 946 (San Jose Peace Officer’s Assn.).)
Farrell describes the exception in section 3504 to the
scope of representation as carving out space for fundamental
managerial policy decisions that involve matters at the core of
management control of the basic direction of an enterprise.
(41 Cal.3d at pp. 660, 663.) Although there can be a duty to
bargain about the details of implementing a fundamental
managerial decision, the decision itself is not subject to
the bargaining process unless the need for unfettered
decisionmaking is less important than the benefit of improved
personnel relations from the bargaining process. (Ibid.; Fire
Fighters Union, supra, 12 Cal.3d at p. 621; State Assn. of Real
Property Agents v. State Personnel Bd. (1978) 83 Cal.App.3d 206,
213 (Real Property Agents); San Jose Peace Officer’s Assn.,
supra, 78 Cal.App.3d at p. 944.)5
B
The City contends that SPOA and the trial court intruded
into one of the most fundamental management prerogatives in the
public sector--the manner of responding expeditiously to a labor
5 This parallels the NLRA. A managerial policy decision that
involves the economic viability or the scope and direction of an
entity is not subject to bargaining even if it directly affects
the terms and conditions of employment unless factors underlying
it are within the control of the employee organization, in which
case the benefit of subjecting the decision to the bargaining
process outweighs the interest in managerial autonomy. (Dorsey
Trailers, Inc. v. N.L.R.B. (3d Cir. 1998) 134 F.3d 125, 131.)

-- 9 of 16 --

-10-
market shortage in a department affecting the public safety. We
agree.
The analysis of whether changes in the status quo represent
fundamental managerial policy decisions generally tends not to
articulate the specific criteria guiding its conclusion, and
instead represents axiomatic declarations. As a result, we must
extract what principles we can from the following digest of
authority derived from the parties’ briefing.
Several cases involve the reduction of work available to
unit personnel. Fire Fighters Union--a largely advisory opinion
for the guidance of subsequent arbitration pursuant to city
charter provisions paralleling the MMB Act (12 Cal.3d at p. 614
& fn. 5)--suggested that the issue of selecting a particular
standard for fire prevention in a community (including the
number of fire stations or amount of equipment) involves
fundamental management policy decisions, unless staffing is
decreased to a point that the individual workloads are increased
or safety is threatened. (Id. at pp. 619-622.) It also pointed
out that under the NLRA, a reduction in workforce involving the
transfer of existing work to personnel outside the unit is
subject to bargaining. (Id. at p. 621.) Citing Fire Fighters
Union and NLRA precedent, Real Property Agents readily found
that a decision to reduce a workforce in the face of budgetary
restrictions implicated fundamental management policy (the
effects of which the agency had adequately addressed in
bargaining). (83 Cal.App.3d at pp. 212-213.) On the other
hand, Dublin Professional Fire Fighters, Local 1885 v. Valley

-- 10 of 16 --

-11-
Community Services Dist. (1975) 45 Cal.App.3d 116 (Dublin Fire
Fighters) had no trouble concluding that reassignment of
overtime to temporary personnel outside the work unit was not a
fundamental management policy decision and was therefore subject
to bargaining. (Id. at pp. 118-119.) Farrell returned to the
context posited in Fire Fighters Union and akin to that in
Dublin Fire Fighters, in which a public agency made the decision
to transfer work to personnel outside the work unit and reduce
staff in the work unit as a result. (41 Cal.3d at p. 655.)
Farrell held this choice could not be considered a fundamental
management policy decision because it did not relate to any
choice about the level of service provided to the public: it
merely reallocated the work required to staff an existing level
of service. (Id. at p. 664.) These cases are instructive
primarily to the extent they define a context that is opposite
to the present: removing work from a bargaining unit with
available personnel.
There are also several MMB Act cases that find noneconomic
policy changes to be fundamental managerial policy decisions.
(San Jose Peace Officer’s Assn., supra, 78 Cal.App.3d at p. 946
[no duty to bargain over policy prescribing police use of
firearms]; Berkeley Police Assn. v. City of Berkeley (1977)
76 Cal.App.3d 931, 937 [no duty to bargain over decision to
improve community relations through allowing members of citizen
and police inquiry boards to attend each other’s meetings].)6
6 The recent case of Claremont Police Officers Assn. v. City of

-- 11 of 16 --

-12-
Although the parties bat these cases back and forth, there is
little guidance that we can derive from them for the present
dispute, because they resolve the abstract MMB principles in a
context other than unit workload.
At the risk of being an additional example of “ruling from
the gut” in this area of jurisprudence, it is readily apparent
to us that the trial court erred. It both overstepped its
bounds in its disregard of the findings of the local legislative
body, and mechanically applied the concept of subcontracting
unit work without considering the nuances of the specific
factual context.
First, it ill-behooved the trial court to reject the City’s
claim that urgency underlay its plan to make use of retirees.
The evidence in this case demonstrated that the greatly enhanced
retirement benefits which triggered the surge in retirements
were the product of binding arbitration beyond the City’s
control (an inherently flawed process in the context of the
public fisc that would be unconstitutional if the Legislature
had imposed it on the City (County of Riverside v. Superior
Claremont (2003) 112 Cal.App.4th 639 (rev. granted Jan. 14,
2004, S120546) found that a noneconomic concern--a decision to
stop the practice or public perception of racial profiling in
traffic detentions--was within the scope of fundamental
managerial policy decisions, although the manner of executing
the decision was subject to bargaining because accusations of
racial profiling could have severe effects on an officer’s
working conditions. It is possible the Supreme Court may use
the case to fashion a brighter line delineating the boundary for
noneconomic policy changes, but we do not anticipate that any
ultimate decision will be of assistance in resolving the present
question of unit workloads.

-- 12 of 16 --

-13-
Court (2003) 30 Cal.4th 278) rather than being the local voters’
self-inflicted wound). The exact magnitude of the surge could
not be foretold a year in advance, and the City responded as
expeditiously as it could with extra recruitments and training
academies.
Second, the superior court incorrectly concluded that the
retiree plan was not the product of any review of the level of
community police services. The authorized staffing for the
police force represents the legislative determination of the
proper feasible degree of protection for the City’s residents.
The retiree plan was the means by which the City sought to reach
that goal under the circumstances in effect from July 2002 to
December 2003, rather than allow the level of protection to
erode during that period.
Finally, the conditions in the present case are not
apposite to Farrell or Dublin Fire Fighters, because it did
not involve a decision to reallocate work from unit members to
other personnel outside the unit. Rather, there was a shortage
that could not otherwise be filled with unit members. In
focusing on SPOA’s anecdotal claims of displaced unit members
in order to bring the City within Farrell’s pigeonhole, the
superior court overlooked the express administrative principles
included in the memorandum from the City’s personnel director
to the Council in support of the resolution endorsing the
retiree policy. Unless the superior court was making an
implicit finding of mendacity on the personnel director’s part,
the policy included administrative protections against the

-- 13 of 16 --

-14-
blocking of promotional opportunities or elimination of acting
assignments, and the commitment to prevent significant adverse
impacts on career employees from the use of the noncareer
retirees. Thus, nothing about the decision to appoint retirees
or its planned consequences resulted in the reallocation of work
opportunities away from unit members. If indeed SPOA is correct
that the execution of this policy in fact resulted in detriment
to individual unit members, then the proper procedure would have
been to file grievances pursuant to the existing MOU (as
augmented with the City’s retiree policy and its administrative
principles), not to compel the City to engage in the bargaining
process over effects contrary to the City’s stated policy. We
conclude that the City’s decision to use retirees to respond to
a short-term staffing shortage in a work force concerned with
public protection involves a question of fundamental managerial
policy that neither SPOA nor the trial court were entitled to
second-guess. As this shortage was beyond the power of SPOA to
remedy (other than through overtime to the limits of human
endurance, a remedy itself fraught with danger to public safety
(City of Santa Ana v. Santa Ana Police Benevolent Assn. (1989)
207 Cal.App.3d 1568, 1573)), there is no benefit in subjecting
the decision to the bargaining process that outweighs the City’s
interest in unfettered decisionmaking.
The City asserts that even if technically moot due to the
passage of time, a resolution of this matter is important in the
event of a future short-term shortage of police (or other
personnel who protect the public safety) as the result of

-- 14 of 16 --

-15-
unforeseen circumstances, which may again be too brief in
duration to allow for effective appellate review. (Chantiles v.
Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th
914, 921.) Consequently, we will reverse the judgment of the
trial court with directions to enter a new judgment denying
SPOA’s petition in its entirety.
II. C043377
The trial court denied SPOA’s motion to recover its legal
fees under the “private attorney general” statute (Code Civ.
Proc., § 1021.5) as the successful litigant. It concluded that
the litigation neither conferred a significant benefit beyond
the immediate context of the SPOA membership during a singular
staffing shortage, nor imposed a financial burden on the part of
SPOA out of proportion to its stake in the matter. (See
Families Unafraid to Uphold Rural El Dorado County v. Board of
Supervisors (2000) 79 Cal.App.4th 505, 511.)
SPOA appeals from this postjudgment order. However, as
SPOA is no longer the successful litigant, it is not entitled to
recovery of its legal fees under the statute. (Schmier v.
Supreme Court (2002) 96 Cal.App.4th 873, 877.) We thus dismiss
this appeal as moot.

-- 15 of 16 --

-16-
DISPOSITION
The judgment in case No. C042493 is reversed and remanded;
the trial court is directed to enter judgment for the City. The
appeal in case No. C043377 is dismissed as moot. The City shall
recover its costs in both appeals.
DAVIS , J.
We concur:
SCOTLAND , P.J.
SIMS , J.

-- 16 of 16 --