Huntington Beach Police officers' Assn. v. City of Huntington Beach

• Decision Date: 18 May 1976
• Parties: , 92 L.R.R.M. (BNA) 2996 HUNTINGTON BEACH POLICE OFFICERS' ASSOCIATION, etc., Plaintiffs and Respondents, v. The CITY OF HUNTINGTON BEACH, etc., et al., Defendants and Appellants. Civ. 15257.
• Court: California Court of Appeals Court of Appeals

Page 893

129 Cal.Rptr. 893

58 Cal.App.3d 492, 92 L.R.R.M. (BNA) 2996

HUNTINGTON BEACH POLICE OFFICERS' ASSOCIATION, etc., Plaintiffs and Respondents, v. The CITY OF HUNTINGTON BEACH, etc., et al., Defendants and Appellants.

Civ. 15257.

Court of Appeal, Fourth District, Division 2, California.

May 18, 1976.

Don P. Bonfa, City Atty., and William Shaw Amsbary, Asst. City Atty., Huntington Beach, for defendants and appellants

Lemaire, Faunce & Katznelson, Edward L. Faunce and Steven R. Pingel, Los Angeles, for plaintiffs and respondents.

OPINION

TAMURA, Associate Justice.

Plaintiff, Police Officers' Association of Huntington Beach, sought a writ of mandate in the court below to compel the City of Huntington Beach, its councilmen and chief of police to reinstate a four-day, ten-hour-day work week schedule ('TENPLAN') for police personnel and to meet and confer in good faith with respect to any proposed changes in the schedule. Following hearing and submission of the matter on the petition, demurrer, answer, and memoranda of authorities, the court entered judgment directing issuance of a peremptory writ of mandate as prayed for by plaintiff. Defendants appeal from the judgment.

The pertinent facts are as follows:

The city is a charter city. Plaintiff is a recognized employee organization of the city. On July 26, 1971, a Memorandum of Agreement relating to wages, hours, and the terms and conditions of employment of personnel in the city police department was negotiated by plaintiff and the city pursuant to the Meyers-Milias-Brown Act (Gov.Code, ch. 10, div. 4, tit. 1; ¹ hereafter 'MMB Act') and an implementing 'Employer-Employee Relations Resolution' ('EER Resolution') previously adopted by the city council. Article XI of the Memorandum of Agreement provides: 'The 'TEN-PLAN' shall be placed into effect for employees designated by the Chief of Police the first of the month following approval by the City Administrator.' Shortly following city council approval and ratification of the agreement, the chief of police placed the TEN-PLAN into effect for all police department personnel. ²

On April 16, 1974, the chief of police notified his department supervisors that effective September 30, 1974, all personnel other than patrolmen would revert to a five-day, eight-hour-day work schedule. In August 1974, personnel in the detective bureau sent a memorandum to the chief requesting a meeting to discuss the return to a five-day work week. On October 14, 1974, in a memorandum setting forth the reasons for their request, the same group asked the chief to reinstate the TEN-PLAN. The city personnel director responded to the request by stating that the work schedule was neither negotiable nor a proper subject for grievance. Thereupon, on October 18, 1974, plaintiff's representative filed a formal grievance with the personnel director complaining that the unilateral action of the chief of police in discontinuing the TEN-PLAN constituted a violation of the Memorandum of Agreement and of the MMD Act. The personnel director responded by letter dated November 20, 1974, stating that the subject matter in controversy 'does not constitute a matter for grievance . . . ( ) As a matter involving the policy of police protection and service with the City, management prerogatives and for other related reasons, the purported dispute is not subject to the grievance procedures.' Plaintiff thereupon filed the instant mandate proceeding.

Defendants attack the judgment below on two grounds: (1) The court lacked jurisdiction to grant the relief sought because plaintiff failed to exhaust its administrative remedies and (2) the subject of work schedule had been excluded from the meet and confer process both by the EER Resolution and the terms of the Memorandum of Agreement. From the analysis which follows, we have concluded that defendants' contentions lack merit and that the judgment should be affirmed.

I

Defendants urge that plaintiff's failure to exhaust the grievance procedure prescribed by the city's personnel rules and regulations or to pursue a remedy provided by the EER Resolution precluded the court from granting the judicial relief sought. The contention lacks merit.

A written memorandum of understanding negotiated pursuant to the MMB Act is, upon approval of the city council, binding upon the parties and performance of the city's obligations under the agreement may be enforced by the traditional mandate proceeding to compel performance of a ministerial duty or to correct an abuse of official discretion. (Glendale City Employees' Assn. v. City of Glendale, 15 Cal.3d 328, 343--344, 124 Cal.Rptr. 513, 540 P.2d 609.) Although the trial court has considerable discretion in deciding whether to grant this from of relief, where plaintiff shows compliance with the requirements for the writ, including lack of a plain, speedy and adequate remedy in the usual course of the law, he may be entitled to the writ as a matter of right. (Flora Crane Service, Inc. v. Ross, 61 Cal.2d 199, 203, 37 Cal.Rptr. 425, 390 P.2d 193; May v. Board of Directors, 34 Cal.2d 125, 133--134, 208 P.2d 661.)

In the case at bench, despite the showing made by plaintiff, defendants contend that the court had no jurisdiction to grant the relief requested because plaintiff failed to exhaust its administrative remedies. Specifically defendants point to plaintiff's admitted failure to exhaust the grievance procedure prescribed by rule 19 of the city's personnel rules and regulations. They also urge that plaintiff should have pursued an appeal procedure prescribed by the EER Resolution.

Rule 19 of the city's personnel rules and regulations pertains to the settlement of grievances in nondisciplinary matters. It provides for a five-step procedure commencing with an informal consultation between an employee and his supervisor and culminating with an appeal to the personnel board if efforts to settle the grievance at lower levels fail. Step four consists of the formal submission of a grievance to the personnel director. Plaintiff pursued the grievance procedure through step four but did not invoke step five.

Plaintiff's failure to exhaust the grievance procedure of rule 19 did not preclude it from seeking judicial relief. For the purpose of rule 19 a grievance is defined as 'a dispute concerning the interpretation or application of an provision of the city's Employer-Employee Relations Resolution, or any provision of this resolution or any departmental rule governing personnel practices or working conditions, . . .' The present dispute pertained to the city's obligations under the Memorandum of Agreement and the MMB Act; it did not concern the interpretation or application of the EER Resolution, the personnel rules and regulations, or a departmental rule. Since the instant controversy is not a grievance within the meaning of rule 19, the procedure therein provided for settlement of grievances was not applicable and failure to pursue it to its ultimate conclusion does not preclude plaintiff from seeking judicial relief. (Glendale City Employees' Assn. v. City of Glendale, supra, 15 Cal.3d 328, 342, 124 Cal.Rptr. 513, 540 P.2d 609; Ramos v. County of Madera, 4 Cal.3d 685, 691, 94 Cal.Rptr. 421, 484 P.2d 93.)

Defendants virtually concede the inapplicability of the grievance procedure prescribed by the city's personnel rules and regulations by contending that plaintiff's proper administrative remedy was to file an 'appeal' with the personnel board under section 14--4 of the EER Resolution. That section provides that 'any decision of the City Administrator or Personnel Director made pursuant to this resolution may be appealed to the Personnel Board' and 'any decision of the Personnel Board made pursuant to this resolution may be appealed to the City Council.' ³ The contention that plaintiff's failure to pursue that course of action deprived the court of jurisdiction to entertain the mandate proceeding must also be rejected. Section 14--4 simply provides that an appeal may be taken; it sets forth no procedure pursuant to which an appeal is to be heard. As explained in Glendale City Employees' Assn. v. City of Glendale, supra, 15 Cal.3d 328, 124 Cal.Rptr. 513, 540 P.2d 609; a procedure 'which provides merely for the submission of a grievance form, without the taking of testimony, the submission of legal briefs, or resolution by an impartial finder of fact is manifestly inadequate to handle disputes of the crucial and complex nature of the instant case, which turns on the effect of the underlying memorandum of understanding itself.' (At pp. 342--343, 124 Cal.Rptr. at p. 523, 540 P.2d at p. 619.)

Moreover, the record reveals that further pursuit of either the grievance procedure or an appeal under section 14--4 of the EER Resolution would have been futile. Throughout the entire controversy the city steadfastly maintained that a change in the application of the TEN-PLAN was a matter of management prerogative and was neither negotiable nor a proper subject for grievance. Where the administrative agency has made it clear what its ruling would be, idle pursuit of further administrative remedies is not required by the exhaustion doctrine. (Ogo Associates v. City of Torrance, 37 Cal.App.3d 830, 834--835, 112 Cal.Rptr. 761. See Gantner & Mattern Co. v. California E. Com., 17 Cal.2d 314, 318, 109 P.2d 932.) This was the basis on which the trial court rejected the city's defense that plaintiff failed to exhaust available administrative remedies. The court's minute order decision states: 'In view of the position taken by (defendants), the Court would deem it inequitable to require further or other exhaustion of administrative remedies.' The trial court's determination is amply supported by the record.

For all the reasons stated, we conclude that the trial court's implied determination that administrative remedies were either unavailable or inadequate or that their further pursuit...