Vol. 26 No. 15- FFBOR – Applies To Chartered Cities And Counties

                                                         CLIENT ALERT MEMORANDUM

To:                 All Police Chiefs and Sheriffs

From:             Martin J. Mayer, Esq.


July 25, 2011

On May 24, 2011, the 6th District Court of Appeal held, in the case of International Association of Firefighters Local Union 230 v. City of San Jose, that the Firefighters Procedural Bill of Rights Act (FFBOR), Cal. Gov. Code sections 3250-3262, applies to charter cities, as well as to general law cities.

After FFBOR became effective in 2008, the plaintiff union, which represents firefighters employed by the City, requested that the City meet and confer over the implementation of the FFBORs new procedures for administrative appeals of discipline imposed on firefighters. Among other things, the new rules called for appeals of all punitive action taken against firefighters, including written reprimands, to be heard by an Administrative Law Judge (ALJ) from the state Office of Administrative Hearings. The City refused to meet and confer, stating that it was not obligated to implement FFBOR since it is a charter city.

The Union sued to compel arbitration of the dispute and the City opposed the motion arguing that the procedure set forth in FFBOR conflicted with the Citys existing procedures. The trial court denied the Unions petition on the basis that the Public Employment Relations Board (PERB) had exclusive jurisdiction over the dispute, not the courts.

However, the trial court found that the Union had sufficiently made a case to compel arbitration on the issue. The City then appealed that decision to the Court of Appeal.

Court of Appeal Decision

The City continued to argue that, as a matter of law, under the home rule provisions of the California Constitution the City is not obligated to implement the
FFBOR because it is a charter city. The
Court found that to determine whether section 3254.5 of the FFBOR may be applied to the City without violating the home rule provisions of the California Constitution, article XI, section 5, we first inquire as to whether section 3254.5 addresses matters of statewide concern or strictly municipal affairs. In general, labor relations with public employees, including firefighters, are a matter of statewide concern.

Furthermore, said the Court, we also accord great weight to the Legislature’s findings that the FFBOR addresses a matter of statewide concern.

The Court of Appeal stated that (w)e must also determine whether the FFBOR impinges beyond a “limited extent” on the City’s local control of firefighter discipline. In that regard, we examine section 3254.5 to determine whether it is procedural or substantive.

The Court then ruled that under the California Supreme Courts decisions in Baggett v. Gates, (1982) 32 Cal.3d 128 and County of Riverside v. Superior Court, (2003) 30 Cal.4th 278, the FFBOR is a procedural statute that does not violate the home rule provisions of the California Constitution and therefore the FFBOR applies to the City.

Duty to Meet and Confer

The California Supreme Court recently emphasized that the duty to meet and confer in good faith is limited to matters within the scope of representation. (Internat. Assn. of Firefighters, Local 188, AFL-CIO v. Public Employee Relations Bd. (2011) 51 Cal.4th 259, 271.) The scope of representation includes, among other things, management decisions “directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls.

[T]he parties do not dispute that the conditions of employment addressed by the FFBOR, including the procedures for a firefighter’s administrative appeal of a disciplinary matter, fall within the scope of representation. Therefore, the City’s refusal to meet and confer regarding whether it is obligated to implement a provision of the FFBOR arguably constitutes a violation of the employer’s duty to meet and confer in good faith and, consequently, may constitute a violation of section 3505 of the [Meyers-Milias-Brown Act] MMBA.

Since PERB has exclusive initial jurisdiction over claims of unfair practices, which include claimed violations of the MMBA, we determine that PERB has exclusive initial jurisdiction in this case. The trial court therefore properly denied the Union’s petition to compel arbitration on the ground that PERB, not the court, has exclusive initial jurisdiction in this labor dispute.

How This Affects Your Agency

Law enforcement agencies have dealt with the provisions of the Public Safety Procedural Bill of Rights Act (POBR) for over 30 years and are used to them. FFBOR is still relatively new and requires a learning curve for those charged with the responsibility of implementing these new rules. It is significant to note that although FFBOR is almost taken verbatim from POBR, there are several new provisions which have been included in FFBOR.

One such provision is that an administrative appeal instituted by a firefighter in response to punitive action
must be conducted in conformance with the rules and procedures adopted by the employing department . . . that are in accordance with the Administrative Procedures Act [Cal Gov Code sec. 11500 et seq.] . . . .

Section 11502 (a) provides in part that all hearings . . . required to be conducted under this chapter shall be conducted by administrative law judges on the staff of the Office of Administrative Hearings. Since that requirement is not contained in POBR, the City of San Jose, apparently, thought it was ripe for challenge.

There are other provisions of FFBOR which also differ from those in POBR and it is imperative that fire administrators be aware of all aspects of this new law. To a large degree, court decisions which interpreted POBR will be applicable in an analysis of FFBOR, however, when the new provisions
are challenged, new law will be created.

Securing advice and guidance from an agencys legal counsel is important when dealing with the interpretation of legal issues. When confronted with new rules, procedures, and due process requirements, as are contained in FFBOR, such advice and guidance is of even greater importance. As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446-1400 or via e-mail at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.