Riverside Sheriff's Ass'n v. County of Riverside

In December 1999 Morelli was denied a step salary increase because she had been absent and her performance could not be evaluated, despite the fact that she had completed at least 2,080 hours on a paid status since her last step increase. Pursuant to the memorandum of understanding between RSA and County (MOU), she was again considered for a step increase 90 days later. That increase was also denied since her situation had not changed.

Morelli challenged the denial of a step increase before the Workers’ Compensation Appeal Board. She also contacted RSA and requested representation in a grievance, which County denied. Thereafter, Morelli requested arbitration.

At the arbitration only two issues were presented: (1) whether County violated article V, section 1 of the operative MOU when it denied Morelli a step increase in December 1999; and (2) whether the grievance was filed in a timely fashion. On June 22, 2001, the arbitrator issued his opinion in favor of County. He found that County had waived its right to complain that Morelli’s grievance was not timely by failing to raise it at any earlier point in the proceedings. He also found that the MOU did not preclude a person on 4850 leave from receiving a step increase. However, neither did it preclude County from establishing reasonable standards as a basis for granting a step increase. RSA did not establish that County had a binding past practice of automatically granting step increases to deputies on 4850 leave. Nevertheless, for purposes of his decision, the arbitrator assumed that there was such a past practice and then concluded that RSA knew about the 1997 change in the past practice as early as 1998, but did not attempt to protest or challenge it. RSA thereby waived any claim that County failed to meet and confer with it, or that the policy change was somehow void. Finally, he concluded that Morelli had not worked a sufficient time to be evaluated since her last step increase. He also noted that in postarbitration briefing, RSA had attempted to raise several issues for the first time. Because the issues were not raised in the grievance, the arbitrator declined to rule on them.

Plaintiffs then filed a petition for declaratory relief and for a writ of mandate. They claimed that County had (1) violated the Meyers-MiliasBrown Act (MMBA) (Gov. Code, § 3500 et seq.) by failing to meet and

Discussion

Plaintiffs sought both a traditional writ under Code of Civil Procedure section 1085 (County’s alleged violation of the MMBA) and an administrative writ under Code of Civil Procedure section 1094.5 (whether Morelli was entitled to a step increase under the MOU). As each writ requires the application of a distinct set of rules, we will consider them in turn.

A. Code of Civil Procedure Section 1085 Ordinary Writ

RSA claims that in 1997 County changed its policy with respect to granting step pay increases to deputies on 4850 leave without first consulting with it, thereby violating the MMBA. It requested an order voiding the new policy. In order to obtain an ordinary writ under Code of Civil Procedure section 1085 a petitioner must show that there is no other plain, speedy and adequate remedy, that the respondent has failed to perform an act despite a clear, present and ministerial duty to do so, and that the petitioner has a clear, present and beneficial right to that performance. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525 , 539-540 [ 28 Cal.Rptr.2d 617 , 869 P.2d 1142 ]; Morgan v. City of Los Angeles Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836 , 842-843 [ 102 Cal.Rptr.2d 468 ].) The petitioner bears the burden of pleading and proving the facts upon which the claim is based. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133 , 1153-1154 [ 43 Cal.Rptr.2d 693 , 899 P.2d 79 ].)

In reviewing the trial court’s denial of the writ, we must determine whether its findings and judgment are supported by substantial evidence. However, where the facts are undisputed and a question of law is involved, we may exercise our independent judgment. (Coloca v. County of San Diego (1999) 72 Cal.App.4th 1209 , 1217 [ 85 Cal.Rptr.2d 660 ].)

Government Code section 3504.5 requires a public agency’s governing body to “give reasonable written notice to each recognized employee organization affected of any ordinance, rule, resolution, or regulation directly

A public agency’s action must have a significant effect on wages, hours and other terms and conditions of employment before it will be subject to the provisions of the MMBA. (Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651 , 659 [ 224 Cal.Rptr. 688 , 715 P.2d 648 ].) Here RSA failed to demonstrate that County’s denial of step increases to employees on 4850 leave had a significant effect on the terms of employment since it did not demonstrate that any employee was entitled to a step increase or that any binding past practice was altered.

The MOU, article V, section l.A. provides that “[t]he compensation of every person employed in a regular position on a step basis shall be considered for increase upon their anniversary date, exception [szc] as herein otherwise provided.” Article V, section l.B. provides, in part, that the anniversary date “shall be the first day of the pay period following the completion of an additional 2080 hours (approximately one (1) year) in a paid status, not including overtime .... [1] ... [1] Prior to the anniversary date the Department Head, after review with the employee involved, shall inform the Human Resources Director in writing on the appropriate form whether or not they allow the increase. . . . Such salary increases shall be given only on the affirmative decision of the Department Head, which shall be made only on the basis of continued satisfactory performance in the position.”

We agree with the trial court that the MOU requires the approval of a deputy’s supervisor prior to the issuance of a step increase. Plaintiffs’ assertion that step increases are based solely upon longevity is belied by the agreement that a deputy shall only be “considered” for a step increase on his or her anniversary date. Use of the term “considered” indicates some discretion will be exercised in determining whether such an increase will be granted. Our interpretation of the MOU is bolstered by the undisputed evidence in the record that, in practice, County had sent salary review reports on employees eligible for step increases to the appropriate chief to be granted or denied since at least 1989.

Still, Plaintiffs argue that County had a past practice of granting step increases to deputies on 4850 leave as a matter of course, and could not

Plaintiffs also relied upon the testimony of Susan Hansen (Hansen), the deputy in charge of personnel. In the latter part of 1996 or 1997 the issue of merit increases and absenteeism had been brought to her attention for the first time. She and a human resources officer discussed whether a deputy who was not working, so that his or her performance could not be evaluated, should be granted a step increase. On the recommendation of human resources, the sheriff’s department command staff concluded that a deputy who had not worked for roughly half a year, and could therefore not be evaluated, should not receive a step increase, and that this policy should be implemented uniformly. However, each deputy’s situation was to be considered individually. In reaching this agreement they discussed the issue recognizing that they had been granting step increases to deputies on 4850 leave.

While this evidence does show that prior to 1998 some deputies obtained step increases while on 4850 leave without having worked a sufficient time to be evaluated, it does not establish that such a practice was unequivocal, regular and consistent, clearly enunciated or readily ascertainable over a reasonable period of time. Indeed, Hansen’s testimony that the sheriff’s command staff determined that a policy should be uniformly applied supports a reasonable inference that in the past, step increases for those on 4850 leave had been both granted and denied. Further, her testimony that each case would continue to be reviewed on an individual basis supports the inference that in the future step increases for those on 4850 leave would continue to be both granted and denied. Thus, there was not even a showing that the policy was changed.

Plaintiffs did not meet their burden of establishing that a binding past practice to automatically grant step increases to deputies on 4850 leave existed. Therefore, they did not establish that County’s action had a significant effect on wages, hours or other terms and conditions of employment. Consequently, there was no requirement to meet and confer under the MMBA. Thus, Plaintiffs have failed to demonstrate that County did not perform an act despite a clear, present and ministerial duty to do so and are not entitled to a writ of mandate under Code of Civil Procedure section 1085.