Boling v. Pub. Emp't Relations Bd.

• Decision Date: 25 March 2019
• Docket Number: D069630,D069626
• Citation: 33 Cal.App.5th 376,245 Cal.Rptr.3d 78
• Parties: Catherine A. BOLING et al., Petitioners, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; City of San Diego et al., Real Parties in Interest. City of San Diego, Petitioner, v. Public Employment Relations Board, Respondent; San Diego Municipal Employees Association et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

33 Cal.App.5th 376

245 Cal.Rptr.3d 78

Catherine A. BOLING et al., Petitioners,

v.PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent;

City of San Diego et al., Real Parties in Interest.

City of San Diego, Petitioner,

v.Public Employment Relations Board, Respondent;

San Diego Municipal Employees Association et al., Real Parties in Interest.

D069626

D069630

Court of Appeal, Fourth District, Division 1, California.

Filed March 25, 2019

Lounsbery Ferguson Altona & Peak, Kenneth H. Lounsbery, James P. Lough and Alena Shamos, Escondido, for Petitioners Catherine A. Boling, T.J. Zane, and Stephen B. Williams in No. D069626 and No. D069630.

Mara W. Elliot, City Attorney, and Michael Travis Phelps, Chief Deputy City Attorney, for Petitioner and Real Party in Interest City of San Diego in No. D069630 and No. D069626.

J. Felix de la Torre, Wendi L. Ross, Sacramento, and Joseph W. Eckhart for Respondent Public Employment Relations Board in No. D069626 and No. D069630.

Smith, Steiner, Vanderpool and Ann M. Smith for Real Party in Interest San Diego Municipal Employees Association in No. D069626 and No. D069630.

Smith, Steiner, Vanderpool and Fern M. Steiner, San Diego, for Real Party in Interest San Diego City Firefighters Local 145 in No. D069626 and No. D069630.

Rothner, Segall and Greenstone, Ellen Greenstone and Hannah Weinstein, Pasadena, for Real Party in Interest AFCSME Local 127 in No. D069626 and No. D069630.

Law Offices of James J. Cunningham and James J. Cunningham for Real Party in Interest Deputy City Attorneys Association of San Diego in No. D069626 and No. D069630.

McCONNELL, P. J.

IINTRODUCTION

This case arises from a decision by the Public Employment Relations Board (PERB) finding that the City of San Diego (City) violated the Meyers-Milias-Brown Act ( Gov. Code, § 3500 et seq. ; Act)¹ when the City's mayor made a policy decision to advance a citizens' pension reform initiative (Initiative) without meeting and conferring with the affected employees' unions (Unions). The California Supreme Court upheld PERB's finding that the mayor's actions violated the City's meet and confer obligations. ( Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 913, 919, 236 Cal.Rptr.3d 109, 422 P.3d 552 ( Boling ).) The Supreme Court then remanded the matter to this court to "address the appropriate judicial remedy for the violation." ( Id . at p. 920, 236 Cal.Rptr.3d 109, 422 P.3d 552.) We also consider previously unaddressed challenges to PERB's administrative remedies.

As we shall explain, we decline the Unions' request to invalidate the Initiative as a judicial remedy because we conclude the Initiative's validity is more appropriately addressed in a separate quo warranto proceeding. We further conclude we must modify PERB's compensatory and cease-and-desist remedies to prevent the remedies from impermissibly encroaching upon constitutional law, statutory law, and policy matters involving initiatives, elections, and the doctrine of preemption that are unrelated to the Act. (See Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 144, 147, [122 S.Ct. 1275, 152 L.Ed.2d 271] ( Hoffman Plastic ) [a labor relations board's administrative remedies may not encroach upon statutes and policies unrelated to the board's enabling act].)²

Specifically, we modify PERB's compensatory remedy to order the City to meet and confer over the effects of the Initiative and to pay the affected current and former employees represented by the Unions the difference, plus seven percent annual interest, between the compensation, including retirement benefits, the employees would have received before the Initiative became effective and the compensation the employees received after the Initiative became effective. The City's obligation to comply with the compensatory remedy extends until completion of the bargaining process, including the exhaustion of impasse procedures, if an impasse occurs. We modify PERB's cease-and-desist remedy to order the City to cease and desist from refusing to meet and confer with the Unions and, instead, to meet and confer with the Unions upon the Unions' request before placing a charter amendment on the ballot that is advanced by the City and affects employee pension benefits and/or other negotiable subjects. As so modified, we affirm PERB's decision.

IIBACKGROUND³

A

After concluding the City violated the Act, PERB imposed a compensatory remedy intended to restore the parties and affected employees to their respective bargaining positions before the failure to meet and confer occurred and to make affected employees financially whole. PERB also imposed cease-and-desist and affirmative action remedies to prevent further violations of the Act.

Specifically, PERB ordered the City to "[m]ake current and former bargaining-union employees whole for the value of any and all lost compensation, including but not limited to pension benefits, offset by the value of new benefits required from the City under [the Initiative], plus interest at the rate of seven (7) percent per annum until [the Initiative] is no longer in effect or until the City and the Unions agree otherwise."⁴ We refer to this remedy as PERB's compensatory remedy or the compensatory remedy.

PERB also ordered the City to cease and desist from "[r]efusing to meet and confer with the Unions before adopting ballot measures affecting employee pension benefits and other negotiable subjects." PERB additionally ordered the City "[u]pon request, [to] meet and confer with the Unions before adopting ballot measures affecting employee pension benefits and/or other negotiable subjects." We collectively refer to these remedies as PERB's cease-and-desist remedy or the cease-and-desist remedy.

B

PERB and the Unions request we affirm PERB's administrative remedies. The Unions also request we, as a judicial remedy, invalidate the Initiative. The Unions assert this review proceeding is an appropriate forum to address the Initiative's validity because there are no factual or legal issues to be resolved by another tribunal. PERB takes no position on the propriety of any judicial remedy but asserts any judicial remedy must be consistent with PERB's administrative remedies.

The City contends the validity of the Initiative may only be determined in a separate quo warranto proceeding (see Code Civ. Proc., §§ 803 – 811 ).⁵ The City also contends PERB's cease-and-desist remedy is unconstitutionally vague and overbroad to the extent the remedy can be interpreted to require that the City meet and confer over a duly certified citizens' initiative prior to placing the initiative on the ballot. The City further contends, to the extent PERB has directed the City to take actions effectively nullifying the effects of the Initiative, the City cannot fully comply with these directions unless the Initiative is invalidated in a quo warranto proceeding because the City has a duty to enforce the Initiative's provisions.

Like the City, the Initiative's proponents (Proponents) contend the validity of the Initiative can only be determined in a separate quo warranto proceeding. The Proponents also contend PERB's compensatory remedy violates their constitutional rights because it effectively invalidates the Initiative by reversing the Initiative's implementation and denying the electorate its fiscal benefits. The Proponents additionally contend PERB's cease-and-desist remedy violates the rights of citizens' initiative proponents because the City has no discretion to meet and confer over the terms of a citizens' initiative.

IIIDISCUSSION

A

We first consider the Union's request for us to invalidate the Initiative in this review proceeding. Equitable remedies, including declaratory relief, are generally not available when legal remedies, including quo warranto, are adequate. ( Int'l Ass'n of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 693–694, 220 Cal.Rptr. 256 ( Fire Fighters ).) Consequently, when the remedy of quo warranto is available, the remedy is exclusive absent contrary constitutional or statutory authority. ( Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 632–633, 75 Cal.Rptr. 766, 451 P.2d 406 ; San Ysidro Irrigation Dist. v. Superior Court of San Diego County (1961) 56 Cal.2d 708, 714–715, 16 Cal.Rptr. 609, 365 P.2d 753 ; Fire Fighters , at p. 694, 220 Cal.Rptr. 256 ; Oakland Municipal Improv. League v. City of Oakland (1972) 23 Cal.App.3d 165, 169, 100 Cal.Rptr. 29 ( Oakland ).)

The remedy of quo warranto is available to challenge "purported irregularities in the legislative process of a charter amendment which has taken effect." ( Pulskamp v. Martinez (1992) 2 Cal.App.4th 854, 859, 3 Cal.Rptr.2d 607, citing County of Santa Clara v. Hayes Co. (1954) 43 Cal.2d 615, 618, 275 P.2d 456 ; Taylor v. Cole (1927) 201 Cal. 327, 333, 257 P. 40 ; Oakland , supra , 23 Cal.App.3d at p. 169, 100 Cal.Rptr. 29.) Because the voters adopted the Initiative and the Initiative has taken effect, the Initiative's procedural regularity may only be challenged in a quo warranto proceeding. ( City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1301, 211 Cal.Rptr.3d 287 ( City of Palo Alto ); Fire Fighters , supra , 174 Cal.App.3d at p. 694, 220 Cal.Rptr. 256.)

There is some authority allowing a court in a mandamus proceeding to decide a quo warranto issue (i.e., title to public office), when the quo warranto issue is incidental to the mandamus issue. (See, e.g., Stout v. Democratic County Cent. Committee (1952) 40 Cal.2d 91, 93–94, 251 P.2d 321.) However, in such circumstance, the court's inquiry into and determination of the quo warranto issue may not extend any further than necessary to resolve the mandamus issue. ( Morton v. Broderick (1897) 118 Cal. 474, 481, 50 P. 644 ["[W]hen the writ [of mandate] is invoked to enforce a specific duty, and remedies at law are not adequate, aid will not be refused merely because occupancy or incumbency or title is incidentally involved. It will act...