Fire Fighters Local 798 v. San Francisco
| Citation | 125 Cal.App.4th 1307,23 Cal.Rptr.3d 364 |
| Decision Date | 20 January 2005 |
| Docket Number | No. A104822.,A104822. |
| Court | California Court of Appeals |
| Parties | SAN FRANCISCO FIRE FIGHTERS LOCAL 798, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. |
McCarthy, Johnson & Miller, Diane Sidd-Champion and Daniela I. Kraiem, San Francisco, Counsel for plaintiff and appellant.
Dennis J. Herrera, City Attorney, Wayne K. Snodgrass and Molly S. Stump, Deputy City Attorneys, Counsel for defendant and respondent.
After two years of negotiations over a change in a promotional rule for firefighters, the San Francisco Civil Service Commission and the firefighters' union reached an impasse in bargaining. The union argues that under the Charter the commission is required to submit the issue to binding arbitration. The Civil Service Commission refused, arguing that because the promotional rule is necessary to ensure compliance with antidiscrimination laws it falls within an exception to the arbitration requirement. The union petitioned the trial court for a writ of mandate compelling arbitration. The trial court denied the petition. We reverse.
In the published part of this opinion, we conclude that when a municipal agency makes a finding of fact that triggers an expansion of its powers, that finding is subject to independent judicial review. When the official or agency simply exercises its discretion within the ordinary scope of its powers, its decisions are reviewed for abuse of discretion. Here, the City made a finding that expanded its powers under the Charter. Unless an exception in section A8.509-5(g) applies, the City may not unilaterally change the terms and conditions of employment for firefighters, but must negotiate with the firefighters' union about proposed changes and if the negotiations end in impasse, must submit the issue to binding arbitration. Because the City's determination of necessity expanded its powers under the Charter, that determination is subject to de novo review.
In the unpublished part of this opinion, we conclude that the City has not established that adoption of its preferred promotional rule was necessary to ensure compliance with antidiscrimination laws. Therefore, the City must submit the promotional rule to binding arbitration.
The Charter of the City and County of San Francisco (Charter) charges the Civil Service Commission (Commission) with "providing qualified persons for appointment to the service of the City and County." (Charter, § 10.100.) The Commission is authorized to adopt rules, policies and procedures to carry out a civil service merit system and, "except as otherwise provided in this Charter," such rules govern hiring and promotion. (Charter, § 10.101.)
Section A8.590 of the Charter establishes collective bargaining procedures for firefighters and other public safety employees, who are denied the legal right to strike. (Charter, §§ A8.590-1 to A8.590-5.) "Notwithstanding any other provisions of th[e] charter, or the ordinances, rules or regulations of the City and County of San Francisco and its departments, boards and commissions," the Commission may not unilaterally change any term or condition of employment for these employees until it meets and confers with union representatives. (Charter, § A8.590-4.) If the parties bargain to impasse without reaching an agreement, the matter must be submitted to binding arbitration, as set forth in section A8.590-5 of the Charter. (Charter, § A8.590-5, "Impasse Resolution Procedures.")
Critical to our decision, section A8.590-5(g)(3) exempts from binding arbitration "any rule, policy, procedure, order or practice ... which is necessary to ensure compliance with federal, state or local anti-discrimination laws, ordinances or regulations." (Charter, § A8.590-5(g)(3).)
The San Francisco Fire Department hired no African-American firefighters before 1955. (U.S. v. City and County of San Francisco (N.D.Cal.1987) 656 F.Supp. 276, 278 (Davis I).) In 1970, only four of 1,800 uniformed fire personnel were African-American. (Id. at pp. 278-279.) The department allowed no women to apply before 1976 and hired no women until August 1987. (U.S. v. City and County of San Francisco (N.D.Cal.1988) 696 F.Supp. 1287, 1289 (Davis II).)
Between 1970 and 1973, a federal district court ruled that three successive versions of the firefighter entry-level examination had an adverse impact on minority1 applicants and had not been professionally validated as an accurate measure of the knowledge, skills and ability needed for the job. (Davis I, supra, 656 F.Supp. at 279, discussing Western Addition Community Organization v. Alioto, C-70-1335 WTS (WACO).) The court ordered affirmative action, requiring the City to hire one minority for each nonminority hired from the entry-level eligibility list until all minority applicants on the list had been hired. (Davis I, at p. 280.) More than 55 percent of the minorities who had been hired by the department as of November 1987 were hired pursuant to this court-ordered arrangement. (Ibid.) A consent decree terminated the WACO action in 1977 and set a goal of 40 percent representation of minorities on the list of eligibles for entry-level positions, but did not require strict ratio or quota hiring. (Davis I, at p. 280.) That consent decree expired in 1982. (Ibid.)
The California Fair Employment and Housing Commission found that a 1978 firefighter promotional examination had an adverse impact on minorities and that the City failed to show that the test was sufficiently job-related to be valid. (Davis II, supra, 696 F.Supp. at p. 1294.) Those findings were upheld on appeal. (Ibid.; City and County of San Francisco v. Fair Employment and Housing Com'n (1987) 191 Cal.App.3d 976, 236 Cal.Rptr. 716.)
In 1986, a federal district court found that entry-level and promotional firefighter examinations used between 1982 and 1984 had adverse impacts on minorities and women. (Davis I, supra, 656 F.Supp. at p. 281; Davis II, 696 F.Supp. at p. 1296.) The City did not attempt to defend the validity of the tests. (Davis I, at p. 281.) The Davis court issued a permanent injunction requiring the development of new examinations that satisfied Title VII requirements. (Davis I, at pp. 289-292.) The court also established an interim hiring procedure. (Id. at pp. 292-293.) The Fire Department was allowed to hire from the existing eligibility lists, but had to "minimally assure that those offered positions reflect the minority and female proportions of the applicant pool," if feasible. (Id. at p. 292, ¶ 15.)
In June 1988, the Davis court approved a consent decree that set long term hiring goals of 40 percent minority and 10 percent female representation in the department. (Davis II, supra, 696 F.Supp. at p. 1299.) The goal for promotions was to reflect the minority representation in the applicant pool. (Ibid.) The goals were targets and not quotas; nevertheless, failure to meet a goal had to be justified to the court. (Ibid.) The consent decree had a term of seven years. (Id. at p. 1300; see also id. at pp. 1311-1322.)
In 1991, the district court approved the use of banding to help the City meet the hiring and promotion goals in the consent decree. (U.S. v. City and County of San Francisco (9th Cir.1992) 979 F.2d 169, 170 (Davis III).) Candidates with scores within the designated band or group of scores were considered equally qualified with respect to the skills and abilities measured by the examination. Promotions were then made from among the candidates with scores in the band on the basis of secondary criteria, including race. (Ibid.) The banding method the court approved was a form of statistically valid grouping. (See ibid., citing Officers for Justice v. Civil Serv. Com'n (9th Cir.1992) 979 F.2d 721, 722-724.)
In December 1997, the district court terminated the consent decree on the stipulation of the parties. (U.S. v. City and County of San Francisco (N.D. Cal. Dec. 1, 1997, C-84-7089 MHP) 1997 WL 776533 (Davis IV).) The stipulated order reaffirmed the hiring and promotional goals in the consent decree and required the City to use its best efforts within the law to attain a workforce that reflected the percentages of minorities in the city population. (Id. at pp. *1-2.) The City agreed to develop and implement a Cadet Program to replace the entry-level selection process and an Officer Candidate Program to replace the promotional process. (Id. at p. *3.) Prior to implementation of the Officer Candidate Program, the City would continue to use banding for promotions to the extent necessary to meet the promotional goals and avoid an adverse impact against women and minorities. (Id. at p. *4.)
The stipulated order expired in 1998. (Davis IV, supra, 1997 WL 776533 at p. *7.) The parties then entered into a one-year memorandum of understanding, which reaffirmed the goal of attaining a workforce that reflected the diversity of the City and required the City to develop an outreach program, a bilingual proficiency test, and the Officer Candidate Program. An Officer Candidate Program was never implemented and the Fire Department has not held promotional examinations since termination of the consent decree in 1998.
As of June 1, 2003, the uniformed force of the Fire Department was 57.7 percent Caucasian, 9.6 percent African-American, 13.9 percent Hispanic, 18.4 percent Asian/Pacific Islander/Filipino and 12.8 percent women.
Typically, applicants for city employment take a civil service examination and are ranked in order of their scores on an eligibility list for new hires or promotions. Certification rules determine which names from the list of eligibles are certified as candidates for an open position. The appointing officer must choose from...
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