San Francisco Fire Fighters Local 798 v. Board of Supervisors

• Decision Date: 27 February 1992
• Docket Number: AFL-CIO,No. A050009,A050009
• Citation: 5 Cal.Rptr.2d 176,3 Cal.App.4th 1482
• Parties: SAN FRANCISCO FIRE FIGHTERS LOCAL 798, International Association of Fire Fighters,et al., Plaintiffs and Respondents, v. BOARD OF SUPERVISORS OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 176

5 Cal.Rptr.2d 176

3 Cal.App.4th 1482

SAN FRANCISCO FIRE FIGHTERS LOCAL 798, International Association of Fire Fighters, AFL-CIO et al., Plaintiffs and Respondents, v. BOARD OF SUPERVISORS OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

No. A050009.

Court of Appeal, First District, Division 3, California.

Feb. 27, 1992.

Rehearing Denied March 30, 1992.

Review Denied June 18, 1992.

Louise H. Renne, City Atty., George A. Riley, Christina Hall, Bruce T. Carolan, Arthur Greenberg, Deputy City Attys., San Francisco, for defendants and appellants.

Duane W. Reno, Davis, Reno & Courtney, San Francisco, for plaintiffs and respondents.

WHITE, Presiding Justice.

This appeal arises from a writ of mandamus (Code Civ.Proc., § 1085) issued against the San Francisco Board of Supervisors and several city departments and department heads (hereafter referred to collectively as the City). The writ directs the City (1) to appoint respondent Thomas M. Stewart to the rank of captain in the San Francisco Fire Department, retroactive to November 13, 1989, and (2) to make no change in the City's long-standing policy of filling all vacancies which occur in the promotional ranks of the fire department from the civil service lists which are in effect at the time the vacancies occur, unless and until respondent San Francisco Fire Fighters Local 798 (Local 798) has been provided with notice and an opportunity to meet and confer over such changes. We reverse.

I FACTS

The dispute in this case was triggered by a seemingly innocuous San Francisco ordinance which provides that members of the fire department are entitled to a lump sum payment for unused sick leave upon retirement. The same ordinance mandates that the retiree's position remain vacant for a period sufficient to permit the City to recoup the amount which was paid to the retiree for accumulated sick leave. In other words, the position must remain vacant until the amount of salary which would have been paid to the retiree had he remained on the job equals the amount of lump sum sick leave paid at his or her retirement.

In order to accommodate individual departmental needs, however, the ordinance also grants the "appointing officer"--in this case, the chief of the fire department--the authority to request permission to immediately fill any vacancy created by retirement. The chief must submit the request for the "recommendation of the General Manager, Personnel, Mayor and approval ... of the Board of Supervisors."

In the past, the fire department routinely submitted "immediate replacement" requests whenever civil service eligibility lists were about to expire. This permitted those who were on the eligibility lists to immediately fill vacancies which occurred during the time the lists were in effect. The net effect of this practice was that the fire department filled as many promotional vacancies as possible from an eligibility list before it expired.

The present controversy concerns the 1985 civil service eligibility list for the rank of H-30, captain, which expired on November 14, 1989. Respondent Stewart was a candidate on that list and was number 10 in line for the next promotion. In the past, immediate replacement requests had been submitted without public discussion or apparent controversy. However, as the expiration date for the 1985 list drew near, there was heated debate over whether the chief of the fire department should invoke his discretionary authority to request immediate replacement authorization in order to appoint nine new captains from the 1985 list before it expired on November 14, 1989.

Because of this controversy, various factions in the fire department expressed their views on the issue at the fire commission's August 29, 1989, meeting. The chief of the department, the president of respondent At the conclusion of the hearing, the fire commission granted the chief authority to request immediate replacement for the nine captain vacancies which existed as of the date of the meeting (Aug. 29, 1989). However, the fire commission prohibited the chief from seeking immediate replacements for any retirements announced after that date. The commission members imposed this limitation because they were concerned senior department members might retire at the last minute to benefit candidates on the 1985 list who would not otherwise be promoted. In the past, some employees eligible for promotion had lobbied or paid off senior employees to encourage them to retire before an eligibility list expired.

                Local 798, and an attorney representing eight eligibles on the 1985 H-30 captain list all spoke in favor of continuing the practice of requesting immediate replacement.  The sole opposition came from Robert Demmons, president of the Black Fire Fighters Association.  Demmons said his association opposed immediate replacement because it would be inconsistent with a federal court consent decree which established a procedure for integrating the upper ranks of the San Francisco Fire Department.  (U.S. v. City and County of San Francisco (N.D.Cal.1988) 696 F.Supp. 1287.)   The decree mandated a series of court-supervised promotional examinations.  (Id., at pp. 1314-1315.)   The first H-30 examination to be administered under the decree was scheduled for November 18, 1989.  Approximately 28 percent of the 193 persons eligible to compete on that exam were "protected class" members.  By contrast, of the top nine candidates remaining on the 1985 H-30 list, eight were White males and one Hispanic.  Thus, Demmons argued any vacancies should remain open to benefit the "protected class" members who planned to take the new H-30 captain examination
                

After the fire commission issued its decision, certain plaintiffs and intervenors challenged that decision in federal court on the ground it was inconsistent with the federal consent decree. The matter was heard before Judge Marilyn Hall Patel on October 4, 1989. Judge Patel noted that the consent decree did not address the practice of requesting immediate replacements, although it had long been the practice in the fire department. She also noted the fire commission had given the matter very thoughtful consideration and stated she would not "favorably entertain any challenge" to the fire commission's decision.

After receiving the green light from Judge Patel, the chief of the fire department submitted requests for the immediate replacement of the nine positions that existed as of August 29, 1989. The mayor approved the request, and the board of supervisors passed a resolution authorizing the nine replacements.

Stewart's Claim.

On October 7, 1989--after the commission's August 29 meeting--a battalion chief retired, creating an additional vacancy in the H-30 ranks. Because he was next in line for promotion to that rank, respondent Stewart appeared at the fire commission's October 10, 1989, meeting to ask the commission to reconsider its decision limiting immediate replacement requests to those vacancies which existed as of August 29. The commission denied his request. Consequently, the chief did not request immediate replacement for the new vacancy, and the 1985 H-30 list expired before Stewart could be appointed to fill the position.

Local 798's Request to Meet and Confer.

Respondent Local 798 also objected to the commission's decision on the ground it violated the meet and confer obligations imposed by the Meyers-Milias-Brown Act (MMBA). (Gov.Code, §§ 3500-3510.) ¹ After the commission handed down its decision, Local 798 wrote to the mayor and fire department to request that they meet and confer before changing the "long-standing practice" of requesting immediate replacement for all vacancies whenever an eligibility list is about to expire. The fire department responded that it had not, in fact, varied that long-standing practice because it had submitted immediate replacement requests In January of 1990 respondents Stewart and Local 798 filed a petition for a writ of mandate in the San Francisco Superior Court. The petition alleged the City had failed to meet and confer with Local 798 before the City changed its policy of requesting immediate replacement for all vacancies which occurred near the end of the life of a particular eligibility list. The petition also alleged the limitation imposed by the fire commission violated respondent Stewart's right to equal protection of the law.

for the nine positions open as of August 29. Consequently, the fire department did not believe the matter was subject to the meet and confer requirement.

Judge Ira A. Brown granted a peremptory writ. The writ ordered the City (1) to appoint respondent Stewart to the rank of captain in the San Francisco Fire Department, retroactive to November 13, 1989; and (2) to make no change in the long-standing policy of requesting immediate replacement when civil service lists for fire department positions are about to expire, unless and until Local 798 has been provided with notice and an opportunity to meet and confer over such changes.

The City has appealed from the judgment granting the writ.

II DISCUSSION

A. Meet and Confer.

The City first contends the decision to limit the requests for immediate replacement to those H-30 vacancies which existed as of August 29, 1989, was not subject to the MMBA's meet and confer requirement. We agree.

The MMBA applies to all local government employees in California. It has two stated purposes: (1) to promote full communication between public employers and employees, and (2) to improve personnel management and employer-employee relations. To effect these goals it requires that public agencies "meet and confer" with employee organizations before the agencies change ordinances, rules or regulations affecting matters "within the scope of representation...." (§§ 3504.5 & 3505; Building Material & Construction Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 657, 224 Cal.Rptr. 688, 715...