PERB’S Order Directing the City Council to Rescind Its Resolution Violated Doctrine of Separation of Powers
Section 3509 of the Meyers-Milias-Brown Act ("MMBA") grants the Public Employment Relations Board ("PERB" or "Board") broad authority to remedy unfair practice charges by restoring the parties to the status quo ante. However, that authority has limits. On November 23, 2016, the California Court of Appeal issued a decision annulling PERB’s remedial order that a public entity rescind a resolution referring a measure to the voters. The Court found that such an order violated the doctrine of separation of powers, as it directed a legislative body to take legislative action. (City of Palo Alto v. Public Employment Relations Board (2016) 5 Cal.App.5th 1271.)
The City of Palo Alto’s charter contained a binding interest arbitration provision for disputes taken to impasse. In 2010, the City took preliminary steps to repeal this provision. The International Association of Firefighters, Local 1319 ("Union") asked to meet and confer with the City.
Over the next year, the City either refused or ignored the Union’s repeated requests to meet and confer over this issue. On July 18, 2011, the City Council adopted a resolution calling for a special election on November 8, 2011, and for a measure to eliminate the binding interest arbitration requirement in the City Charter.
On July 28, 2011, the Union filed an unfair practice charge, alleging that the City’s failure to meet and confer violated the MMBA.
On November 8, 2011, the election occurred and the ballot measure repealing the binding interest arbitration provision passed.
An administrative law judge heard and ruled on the dispute. Both the City and Union filed exceptions to the proposed decision.
In August 2014, PERB issued its final decision. It stated that the City had violated its duty to meet and consult with the Union. The Board held that it could not remedy this unfair practice by overturning the election results. Instead, it ordered the City Council to rescind its July 18, 2011 resolution referring the ballot measure to the voters. Thereafter, the Union and other interested persons could seek relief from the courts.
The City filed a petition for writ of extraordinary relief with the California Court of Appeal, seeking to annul the Board’s order to rescind the 2011 resolution.
Court of Appeal Decision
The Court of Appeal concurred with PERB that the Union sufficiently requested to meet and consult with the City, and that the City failed to satisfy this duty. However, the Court of Appeal found that the Board overstepped its quasi-judicial remedial authority and violated the separation of powers doctrine.
The Court adopted the Board’s position concerning the nature and scope of the duty to consult in good faith under the MMBA. The Court agreed that the duty to consult under Section 3507 of the MMBA is distinct from the duty to meet and confer under Sections 3504 and 3505. The Court found that binding arbitration qualified as a mandatory subject under Section 3507, as this provision requires public agencies to meet and consult with recognized unions regarding the development of reasonable rules and regulations. Given these findings, the Court concurred with the Board that the City failed to satisfy its obligation to meet and consult with the Union on its binding arbitration resolution proposal.
The Court then turned to PERB’s remedial authority. While the Court acknowledged that the Board has broad authority under the MMBA to remedy unfair practice charges and restore the parties to the status quo ante, it held that this authority did not permit it to compel legislative action. Under the doctrine of separation of powers among the three coequal branches of government, neither courts nor quasi-judicial agencies such as PERB may command or prohibit legislative actions. The Court also distinguished its finding from several other appellate decisions interpreting the MMBA, finding a difference in kind between invalidating a public agency’s legislative action and ordering an agency to enact or rescind legislation. The former remedy appropriately concludes that a legislative act never occurred due to a procedural defect, while the latter remedy acknowledges a prior legislative act and unlawfully orders the public agency to adopt different legislation. The separation of powers doctrine prohibits this latter remedy. Consequently, the Court found that PERB lacked the remedial authority to compel the City Council to legislate and rescind its 2011 ballot measure. The Court annulled the Board’s decision.