Cnty. of Fresno v. Fresno Deputy Sheriff's Ass'n

• Decision Date: 29 May 2020
• Docket Number: F076417
• Citation: 51 Cal.App.5th 282,264 Cal.Rptr.3d 534
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF FRESNO, Plaintiff and Respondent, v. FRESNO DEPUTY SHERIFF'S ASSOCIATION et al., Defendants and Appellants.

51 Cal.App.5th 282

264 Cal.Rptr.3d 534

COUNTY OF FRESNO, Plaintiff and Respondent,

v.FRESNO DEPUTY SHERIFF'S ASSOCIATION et al., Defendants and Appellants.

F076417

Court of Appeal, Fifth District, California.

Filed May 29, 2020

Certified for Partial Publication.^*

Messing Adam & Jasmine, Gary M. Messing, Jason H. Jasmine, San Francisco, and Lina Balciunas Cockrell for Defendants and Appellants.

Daniel C. Cederborg, County Counsel, Stockton, Catherine E. Basham, Deputy County Counsel, Fresno, for Plaintiff and Respondent.

OPINION

HILL, P.J.

Two sheriff's deputies, through their employee organization, filed a grievance challenging their involuntary reassignment from their specialty assignments to patrol assignments. They asserted the reassignments violated both the Memorandum of Understanding (MOU) between the County of Fresno (the county) and the employee organization, and an established past practice that deputies would not be involuntarily reassigned in the absence of disciplinary issues, documented performance issues, layoffs, or pending disability retirement. The administrative hearing of the grievance resulted in a decision in favor of the deputies. The county filed a petition for a writ of mandate to reverse the decision, and the trial court granted the petition. The employee organization and the deputies appeal. We conclude the arbitrator who heard the matter abused his discretion because his findings were not supported by substantial evidence. Accordingly, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants Greg Isaac and Kirby Alstrom are employed by the Fresno County Sheriff's Office (the department) as deputy sheriffs. For several years prior to December 2014,¹ they held specialty assignments as detectives, with Isaac in the Vice/Intelligence Unit (vice intelligence) and Alstrom in the Agricultural Crimes Task Force (ag task force).

A specialty assignment is an assignment to a detective unit, a non-patrol function. Specialty assignments include positions in units such as the U.S. Marshals Fugitive Task Force, the Multi-Agency Gang Enforcement Consortium (MAGEC), the ag task force, and vice intelligence. The department fills vacancies in specialty units by sending out flyers to the entire department, which announce an opening and specify the minimum qualifications, taking applications, and conducting examinations. Any deputy who has passed the patrol training program and is a working deputy in the courts or patrol unit is eligible to apply.

In April, Isaac's sergeant told him he was being reassigned from vice intelligence to patrol because of his tenure with the unit. In September, Alstrom's sergeant told him he would be returning to patrol in December. Alstrom was told he was being reassigned because some detectives had been in the specialty unit for a long time, and patrol deputies were complaining of the lack of opportunities to move into specialty assignments.

Each deputy who works in patrol is assigned to a slot that designates the area, shift, and days off the deputy will have. Each year, the department has an opportunity to reconfigure its patrol shifts in the different areas it covers. It allows deputies to choose their patrol shift assignments based on seniority. These annual seniority shift sign-ups generally occur every October or November, and the shift changes go into effect every December. Isaac and Alstrom both participated in the annual seniority shift sign-ups for patrol in October and moved into their patrol assignments in December.

Both deputies testified they did not believe they could be reassigned from their specialty assignments to patrol involuntarily, absent documented performance problems or grounds for discipline. Neither deputy had disciplinary nor documented performance problems; both had received positive performance evaluations. They did not consent to reassignment and, through the deputies' bargaining representative, appellant Fresno Deputy Sheriff's Association (the association), they filed a grievance in protest.

The parties apparently agreed to have the grievance heard by an arbitrator, in lieu of the grievance committee provided for in the grievance procedure in the MOU. The issues presented to the arbitrator, as framed by the parties, were: "Did the [department] violate the [MOU] between the [c]ounty and the [association] when [Isaac and Alstrom] were involuntarily transferred from their special[ty] assignments? And if so, what is the remedy?" The arbitrator sustained the grievance, concluding that, in violation of the department's obligation to negotiate terms and conditions of employment, the department unilaterally changed its past practice of only involuntarily transferring deputies from their specialty assignments on the basis of disciplinary issues, documented performance issues, layoffs, or disability retirement. The decision ordered the department to cease and desist from involuntarily transferring deputies from their specialty assignments on other grounds. It also gave Isaac and Alstrom the opportunity to return to their specialty assignments, if they chose to do so.

The MOU provided that the decision on the grievance would be reviewable by administrative writ of mandate, pursuant to Code of Civil Procedure section 1094.5.² The county petitioned for a writ to reverse the arbitrator's decision. After considering the administrative record of the hearing and the arguments of counsel, both written and oral, the trial court granted the petition. It ordered issuance of a writ of mandate vacating the administrative decision and denying the grievance filed by the association on behalf of Isaac and Alstrom. The association, Isaac, and Alstrom appeal the judgment.

DISCUSSION

I. Standard of Review

When the trial court reviews the decision of an administrative body pursuant to section 1094.5, the inquiry "shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." ( § 1094.5, subd. (b).)

The appellate court applies substantial evidence review. ( SP Star Enterprises, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 459, 469, 93 Cal.Rptr.3d 152.) If a fundamental vested right was involved, and the trial court therefore exercised independent judgment, the appellate court reviews the decision of the trial court. ( Ibid. ) If the trial court "applied substantial evidence review because no fundamental vested right was involved, then the appellate court's function is identical to that of the trial court. It reviews the administrative record to determine whether the agency's findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them." ( Ibid. ) "If the administrative findings are supported by substantial evidence, the next question is one of law—whether those findings support the agency's legal conclusions or its ultimate determination." ( JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058–1059, 48 Cal.Rptr.3d 563.) Here, the parties agree the case does not affect a fundamental, vested right, so we review the decision of the arbitrator and apply the substantial evidence standard.³

"Because [memorandums of understanding] are binding agreements between local agencies and designated employee representatives, when the meaning of a[ memorandum of understanding] is in dispute we apply de novo review, exercising our independent judgment. [Citation.] ‘It is a judicial function to interpret a contract or written document unless the interpretation turns upon the credibility of extrinsic evidence.’ " ( National City Police Officers' Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1278, 105 Cal.Rptr.2d 237.)

II. Prior Proceedings

A. Administrative proceedings

On or about September 23, the association, on behalf of Isaac, Alstrom, and "all those similarly situated" (capitalization omitted), filed a grievance alleging the deputies were adversely affected by the misapplication of (1) the MOU, and (2) a clearly established lawful past practice. The association alleged there was no written agreement regarding rotation in and out of specialty assignments. However, they asserted there was a long-standing past practice of allowing deputies to remain in their specialty assignments until they chose to leave, promoted out of the assignment, or retired. The association asserted the MOU did not allow the department to involuntarily reassign deputies out of their specialty assignments, absent documented performance issues, such as a disciplinary transfer. The department, however, believed it could transfer a deputy from a specialty assignment based on being in the assignment too long; Isaac and Alstrom were the subjects of this type of transfer. The association alleged the involuntary transfers were a change from past practice that violated article 53 of the MOU, the waiver clause.

The department denied the grievance, rejecting the contention it misapplied the MOU. It asserted it had the right, under article 38 of the MOU, the management rights clause, to involuntarily move deputies and sergeants from one assignment to another, based on the department's needs, and it had done so in the past. It asserted: "The ability to move employees from one assignment to another is critical to giving employees the necessary job knowledge and experience to promote the growth and development of our employees and the [department]." It provided a list of some who had been involuntarily reassigned.

The arbitrator heard the matter over the course of two days. In his decision, he identified the baseline issue as one of contract...