In March 1974 numerous workers employed by the City and County of San Francisco and a large number of school teachers employed by the San Francisco Unified School District went on strike in protest of salary and fringe benefit proposals then under consideration for the upcoming 1974-1975 fiscal year. During the course of the two strikes, discussions were undertaken between employee association representatives and representatives of the two municipal employers, the city and the school district. Ultimately these “meet and confer” or negotiating sessions culminated in the adoption of separate legislative measures by the board of supervisors and the governing board of the school district.
Shortly after the enactment of these measures, real party in interest, George Bangs, filed two taxpayer actions in the superior court challenging, on a variety of grounds, the validity of both the city’s salary standardization ordinance and the school district’s salary schedule resolution. After determining that these taxpayer actions raised substantial questions as to the validity of the challenged ordinance and resolution, respondent, Nathan Cooper, Controller of the City and County of San Francisco, refused to implement the newly enacted measures at the commencement of the 1974-1975 fiscal year and continued to authorize salary warrants only on the basis of the 1973-1974 pay rates. The city and the school district then filed the instant proceeding seeking a writ of mandate to compel the controller to draw and deliver warrants reflecting the salary increases granted by the new ordinance and resolution. The taxpayer, in his return to the alternative writ, opposes the requested relief, arguing that both the city ordinance and school district resolution are invalid for a number of distinct reasons. 1
As discussed at length below, we have concluded that although portions of both the challenged ordinance and resolution are invalid, the
As we explain initially, although the taxpayer claims that both legislative measures are invalid in their entirety because they were adopted “as a result of,” and “under the coercion of,” an illegal public employee strike, the controlling authorities clearly establish that such a contention does not constitute a permissible basis for invalidating duly enacted legislation. In the absence of a constitutional, statutory or charter provision prohibiting a local legislative body from exercising its legislative power to settle an “illegal” strike, the judiciary has no authority to withdraw the legislative prerogative on the basis of allegedly improper influences brought to bear upon individual legislators. In this realm, legislative judgment аnd wisdom are reviewable only by the electorate, not by the courts.
Second, we shall explain that the taxpayer has not established that the challenged ordinance conflicts with the controlling “prevailing wage” provisions of the city charter. Although the taxpayer alleges that the salary schedule is “arbitrary, palpably unreasonable and constitutes an abuse of discretion,” these conclusory allegations are inadequate in themselves to demonstrate the invalidity of the ordinance, and they are not sufficiently substantiated by the taxpayer’s more specific averments. We do, however, agree with the taxpayer’s contention that the board of supervisors was without authority to adopt a separate portion of the ordinance establishing a city-financed employee dental plan, in light of a specific city charter provision delegating authority for the establishment of such a plan to a separately constituted health service board.
Finally, we shall point out that the school board resolution is not invalid under the Winton Act (Ed. Code, § 13080 et seq.), even though it was enacted subsequent to, and adopted the substance of, a written “agreement,” prepared as a result of numerous “meet and confer” sessions between employee and employer representatives. As we explain, although the Winton Act withholds binding legal effect from any agreement entered into by meeting and conferring representatives, the school board itself, through a formal resolution, adopted the measure at issue here. Since the Winton Act, by its own terms, defines the objective
1. The facts of the instant case.
As already noted, the instant proceeding involves the validity of two separate and distinct legislative measures, a city ordinance (No, 152-74) and a school district resolution (No. 44-9-Sp 1). Although the circumstances leading to the enactment of these two measures are in some respects interrelated, the relevant facts are sufficiently distinct to necessitate a separate discussion of each enactment.
(a) Ordinance No. 152-74
Under the Charter of the City and County of San Francisco (hereafter “San Francisco city charter” or “city charter”), the compensation paid to a large number of city employees (sometimes referred to as “miscellaneous employees” or “employees subject to salary standardization”) is еstablished by the board of supervisors pursuant to a “prevailing wage” standard. Section 8.401 of the charter provides that for such employees the compensation fixed by the board “shall be in accord with the generally prevailing rates of wages for like service and working conditions in private employment or in other comparable governmental organizations in this state”; sections 8.400 and 8.401 establish the procedure leading up to the board’s ultimate fixing of compensation.
In brief, these charter provisions direct the city civil service commission to conduct surveys of comparable jobs throughout the state and, on the basis of the data collected in such surveys, to recommend to the board of supervisors a wage schedule which will provide salaries in accord with “prevailing wages” to all employees subject to salary standardization. The board of supervisors then reviews this data and, after considering additional information gathered on its own, “may approve, amend or reject” the commission’s recommendation. If the
On January 15, 1974, the civil service commission formally presented to the board of supervisors its recommendations for the 1974-1975 salary schedule based on data gatherеd from its surveys. The commission’s recommendation divided the relevant employees into three groups: (1) for those employees whose salaries, under the commission’s analysis, were found to be equal to or 1 percent below “prevailing wages,” the commission recommended no increase; (2) for those employees whose salaries, again under the commission’s analysis, were from 1 percent to 4 percent below “prevailing wages,” the commission recommended a 2-1/2 percent increase; and (3) for those employees whose salaries, in the commission’s opinion, were 4 percent or more below “prevailing wages,” the commission recommended a 5 percent increase. The commission estimated the total cost of its “0-2-1/2-5%” salary proposal at $4.8 million.
After two public hearings before the board of supervisor’s legislative and personnel committee, the committee presented the matter to the full board on March 4, 1974, recommending that the commission’s “0-2-1/2-5%” proposal be revised to a “2-3-5%” formula, retaining the same classifications proposed in the commission’s recommendation. 3 The total cost of this 2-3-5 percent plan was estimated at $5.5 million. A majority of the board of supervisors tentatively approved this amended formula at the March 4 meeting and the final vote on the proposed ordinance was scheduled for the board’s next regular meeting on March 11.
Shortly after the strike began, a number of members of the board of supervisors commenced closed session discussions with representatives of the various employee organizations. These discussions continued intermittently throughout the strike. In the early morning hours of March 15, one week after the strike had begun, several members of the board of supervisors and representatives of the various unions announced that they had reached an agreement ending the strike. Later that same day, the board of supervisors met in regular session and tentatively approved ordinance No. 152-74, the salary ordinance challenged in the instant proceeding; 10 days later, on March 25, 1974, the board finally enacted the ordinance. On March 27, the mayor signed the ordinance into law.
Ordinance No. 152-74 grants all miscellaneous employees subject to salary standardization a $45 per month increase for the first six months of the 1974-1975 fiscal year and a $55 per month increase for the last six months of the fiscal year. The ordinance also contains a provision establishing a dental plan with city contributions to be limited to $7 per employee per month, the total cost not to exceed $500,000 per year. Finally the ordinance implements various “internal adjustments” at a cost of approximately $80,000. The taxpayer contends that the total cost of these provisions amounts to approximately $12 million.
b. Resolution No. 44-9-Sp 1
Under the provisions of both the city charter and the Education Code, the San Francisco School Board is authorized to “fix, alter and approve” the salary and other forms of compensation of certificated employees of the San Francisco Unified School District. (San Francisco Charter, § 5.101; Ed. Code, § 13502.) Unlike the salaries of the miscellaneous city employees discussed above, the compensation of “certificated” employees—in general, teachers and other professionals employed by the district—is not governed by a “prevailing wage” provision. Except as
The Winton Act, however, grants certificated employees a means of participating in the district’s determination of wages and working conditions. The Winton Act provides that before the school district takes action on a wide range of subjects, including employee wages and working conditions, it must “meet and confer” with representatives of recognized employee associations if they so request. (See Ed. Code, §§ 13080, 13084, 13085, 13089.) Under the act, if there is more than one cеrtificated employee association in a single school district, the “meet and confer” sessions take place between representatives of the school district and a “certificated employee council.” (Ed. Code, § 13085.) In San Francisco, the certificated employee council is composed of nine representatives from three separate employee organizations: the San Francisco Federation of Teachers, Local 61, AFT-AFL-CIO (hereafter “Local 61”), the San Francisco Classroom Teachers Association (hereafter “Classroom Teachers Association”), and the San Francisco Personnel and Guidance Association.
Pursuant to its obligations under the Winton Act, the school district scheduled a “meet and confer” session with the certificated employee council to discuss proposals for the 1974-1975 school year salary schedule. The first session took place on March 7, 1974, by coincidence the first day of the city employee strike. When this initial meet and confer session ended without agreement, the membership of one of the employee associations, Local 61, voted to and did commence a strike against the district on March 8, 1974. On March 25, 1974, the membership of the Classroom Teachers Association joined the striking Local 61.
Throughout the strike, the employee council and representatives of the school board held numerous “meet and confer” sessions. On March 26, 1974, one day after the Classroom Teachers Association had joinеd the strike, the district representatives and the employee council met again and reached agreement with respect to a variety of issues, including a 6 percent salary increase for all certificated employees. Thereafter, the representatives of the district and the employee council embodied the agreement in a written memorandum of understanding and on March 29, 1974, signed the written memorandum.
Finally, the memorandum contains 31 separately numbered paragraphs dealing with the substantive terms or recommendations of the agreement; the first such paragraph calls for a “six percent cost of living increase for all teachers” and subsequent paragraphs deal either with similar compensation and working condition matters or with issues of broader educational policy.
On April 9, 1974, the school district’s governing board met in formal session and enacted resolution No. 44-9-Sp 1, the resolution at issue in this case. The resolution declares that the provisions of the March 29 memorandum of understanding “are incorporated into and become an integral part of the 1974-75 Certificated and Classified Salary Schedules of the San Francisco School District and . . . shall be deemed to be incorporated into and be a part of the employment conditions of all teachers employed by the district for 1974-75....”
Shortly after the enactment of both city ordinance No. 152-74 and school board resolution No. 44-9-Sp 1, George Bangs, a taxpayer residing in San Francisco, commenced two separate taxpayer suits in the superior court, seeking to enjoin the city from implementing either of the legislative measures on the ground that each measure was invalid in its entirety. The main thrust of the initial complaint in each action was that
On June 18, 1974, shortly before the new salary schedules were to go into effect, respondent Cooper, the city controller, issued an official departmental instruction, declaring that pending final adjudication of Bangs’ taxpayer suits, wages for city employees subject to salary standardization and for certificated employees of the school district would be paid only on the basis of the 1973-1974 pay rates.
On July 3, 1974, the city and its unified school district commenced the instant proceeding, seeking a writ of mandate to compel the controller “to draw and deliver salary warrants reflecting the salary increases granted by Ordinance 152-74 and Resolution 44-9-Sp 1.” The cases clearly establish this procedure as an appropriate means to challenge the controller’s refusal to implement a duly enacted salary measure and to secure a determination as to the validity of the legislation in question. (See, e.g.,
City and County of S. F.
v.
Boyd
(1943)
Both respondent Cooper and real party in interest Bangs have filed returns in this matter, with Bangs taking the laboring oar in urging a denial of the requested writ. The taxpayer’s return contends that both the ordinance and resolution are invalid in a number of respects. In the following sections of this opinion we discuss each of thе contentions raised. First, we address the contention—applicable to both the city ordinance and the school board resolution—that the enactments are invalid because adopted as the result of an illegal strike. Second, we discuss the additional allegations raised with respect to the city ordinance. Third, and finally, we analyze the additional contentions pertaining to the validity of the school board resolution.
2. In the absence of applicable constitutional, legislative, or charter proscriptions, a duly enacted legislative measure cannot be invalidated on the ground that it was enacted as a result of an illegal strike.
Our analysis must begin with the recognition that the ordinance and resolution at issue here are clearly legislative in nature. (See, e.g.,
Kugler
In characterizing the employee work stoppage at issue as “illegal,” the taxpayer relies on a series of Court of Appeal decisions which have concluded that under the present state of California law public employees do not have the right to strike. 4 The return filed by the various real party in interest employee associations contests this conclusion, arguing both that present state statutes implicitly authorize strikes by some categories of public employees, 5 and also that by the very legislative measures challenged in this action the City of San Francisco has impliedly sanctioned public employee strikes.
We have no occasion to resolve this controversy in the present action, however, for evqn if we assume that all public employee strikes are illegal, and may properly be enjoined under a court’s equity power (see, e.g.,
City of San Diego
v.
American Federation of State etc. Employees, supra,
The taxpayer asserts, however, that despite the absence of any applicable constitutional, statutory or charter limitation, this court can and should void these legislative measurеs because the enactments were “caused” by illegal influences, namely, an illegal strike. The taxpayer’s theory founders on the “wise and ancient doctrine”
(United States
v.
Constantine
(1935)
This principle was articulated and explained by Chief Justice Marshall in the seminal decision of
Fletcher
v.
Peck
(1810)
In
Fletcher
Justice Marshall explained: “It may well be doubted, how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, operating on members of the supreme sovereign power of a state . . . are examinable in a court of justice. If the principle be conceded, that an act of the supreme sovereign power might be declared null by a court, in consequence of the means which procured it, still would there be much difficulty in saying to what
As this passage from Fletcher suggests, any judicial attempt to determine the validity of legislation upon the basis of the motives of, or influences upon, particular legislators must inevitably prove a hazardous and largely futile task. Because the enactment of legislation is a collective process in which numerous individually motivated legislators participate, it is impossible to determine with certainty whether a particular “improper influence” or “motive” was “actually” responsible for the enactment of a law; moreover, the practical difficulties are compounded by the fact that each individual legislator will often, if not always, act out of a variety of motives and under a diverse set of influences. Thus, any attempt to determine the “actual” effect of the allegedly illegal strike on the minds of the legislators would hardly be a sound basis for invalidating legislation.
Moreover, in several respects judicial non-intervention is more appropriate in the instant case than in either
Fletcher
or much of
Fletcher’s
progeny. Unlike
Fletcher,
there are no allegations here that the legislators acted from corrupt or fraudulent motives; thus, this is not a case in which the judiciary finds itself in the position of affirming the personal aggrandizement of lawmakers at the expense of the public. (Cf.
Maxwell
v.
City of Santa Rosa
(1959)
Instead, the taxpayer’s present argument reduces to a contention that
People
v.
Bigler
(1855)
Justice Holmes’ opinion for the Unitеd States Supreme Court in
Calder
v.
Michigan
(1910)
At the heart of the decision in
Bigler
and
Colder
lies the separation of powers doctrine, the fundamental doctrine which recognizes that in the absence of some overriding constitutional, statutory or charter proscription, the judiciary has no authority to invalidate duly enacted legislation.
7
The taxpayer’s contention flies in the
The taxpayer argues, however, that if public employees cannot legally strike, then it follows that any settlement which permits striking employees to secure any benefits resulting from their unlawful conduct would violate public policy and, accordingly, would be void. In support of this argument, the taxpayer relies heavily on the Court of Appeal decision in
Grasko
v.
Los Angeles City Board of Education
(1973)
We cannot subscribe to the
Grasko
court’s conclusion that the illegality of a strike necessarily taints any agreement entered into by a public employer to end the strike. (See
Social Workers Union Local 535
v.
County of Los Angeles
(1969)
Moreover, even if we were persuaded of the validity of the Grasko “public policy” analysis—which we are not—the legislative measures at issue in this case as explained above could not be invalidated on such a basis. In the absence of controlling constitutional, statutory or charter limitations, local legislators retain authority to determine the appropriate legislative response to an allegedly illegal strike. Some legislators may conclude that it is unwise to respond to any demands voiced through an illegal strike on the ground that such consideration might encourage similar strikes in the future; others may decide that the public interest requires legislative action that recognizes the practical realities of the strike and attempts to ameliorate the underlying dispute. It is, of course, a legislator’s prime function to choose between such conflicting policy judgments; in so doing, he or she is directly responsible to the electorate, not to the judiciary. That legislative role signifies the essence of the doctrine of the separation of powers.
Thus, even if we assume the illegality of the public employee strike, such illegality affords no basis for invalidating either the salary ordinance or salary resolution at issue in the case at bar. Accordingly, insofar as the taxpayer’s attack rests upon the occurrence of an “illegal strike,” the challenge fails..
3. Although the portion of ordinance No. 152-74 establishing a dental plan conflicts with the city charter and is invalid, the return fails to demonstrate that the salary schedule of the ordinance violates the charter’s “prevailing wage”provisions.
The taxpayer initially asserts that the ordinance fails because the salaries fixed by the enactment’s across-the-board $50 per month increase do not “accord with the prevailing rates of wages” as required by section 8.401 of the city charter.
10
Although past California decisions establish that such a charter provision does constitute “a positive limitation on the [board of supervisors’] exercise of discretionary authority in fixing compensation for municipal employees”
(Walker
v.
County of Los Angeles
(1961)
As the decisions have recognized, some discretionary latitude is implicit in the nature of the “prevailing wage” standard itself; as a rule, such charter provisions do not set forth any specific formula by which the prevailing wage is to be determined, but instead leave to the legislating body the choice between the various reasonable alternative means of calculating “prevailing wages.” In addition, because a fair prevailing wage determination may take into account many component elements —such as various fringe benefits—which are frequently not susceptible to precise appraisal, a substantial measure of legislative discretion is inevitable. (See, e.g.,
Anderson
v.
Board of Supervisors
(1964)
Moreover, the charter provision at issue here simply directs the board of supervisors to fix compensation “in accord with” the generally
Although the return in the instant case does allege that ordinance No. 152-74 is “arbitrary, palpably unreasonable and constitutes an abuse of discretion,” such conclusory allegations do not, of course, in themselves suffice to meet the heavy burden required to invalidate a salary ordinance under the principles of
Boyd.
(See, e.g.,
Lagiss
v.
County of Contra Costa
(1963)
To bolster the return’s conclusory allegations, the taxpayer’s brief proffers two more specific allegations which assertedly demonstrate that the salary schedule adopted by the present ordinance does not accord with prevailing rates. First, the taxpayer points out not only that the $50 per month across-the-board increase differs fundamentally from the three-tier recommendation submitted by the civil service commission on the basis of its salary surveys but also that it is much more costly than the commission proposal. Second, the taxpayer emphasizes that the terms of the ordinance were reached as a result of a series of negotiating sessions with employee representatives. Although the taxpayer argues that these two circumstances adequately demonstrate that the salaries adopted by the ordinance do not satisfy the charter requirements, we cannot agree.
In the first place, the fact that the salary schedule ultimately adopted by the board differs significantly from that recommended by the
The case of
San Francisco Chamber of Commerce
v.
City etc. of S. F., supra,
Similar considerations pertain here. Although the ordinance’s $50 per month across-the-board approach unquestionably differs from the commission’s recommendation, the returns before this court fail to demonstrate, or even allege, with any specificity exactly which salary levels fixed by the ordinance do not ostensibly accord with prevailing rates. In this regard, the showing made by the instant taxpayer falls far short of that presented—without success—in the Chamber of Commerce litigation, and surely fails to meet the heavy burden placed on the taxpayer by Boyd.
The taxpayer also claims that the invalidity of the $50 per month increase is established by the fact that the figure was allegedly agreed
As explained above, while the charter’s prevailing wage provisions do establish limits within which the board of supervisors must act, the board enjoys a considerable degree of discretion both in determining the prevailing wage standards and in fixing compensation “in accord with” such standards. The “meet and confer” procedure sanctioned by the Meyers-Milias-Brown (MMB) Act (Gov. Code, § 3505; see also San Francisco Charter, §§ 16.200-16.222) can provide a useful channel through which employee representatives may voice suggestions as to how the board’s discretion should be exercised. This, of course, does not mean that the “meet and confer” process may supplant the charter’s prevailing wage guidelines; the MMB Act itself recognizes the continued validity of such charter provisions. (Gov. Code, § 3500; see San Francisco Charter, § 16.201.) So long as the ordinance which is ultimately adopted conforms to the charter restrictions, however, the board’s participation in “meet and confer” sessions constitutes no basis for voiding a subsequent enactment. (Cf.
Alameda County Employees’ Assn.
v.
County of Alameda
(1973)
In sum, we conclude that the taxpayer has failed to sustain his considerable burden of demonstrating that “ ‘upon no conceivable basis under all of the evidence . . . can the rates as fixed be brought within the charter limitation.’ ”
(City and County of S. F.
v.
Boyd, supra,
The invalidity of the dental plan provision of the ordinance, however, does not taint the remainder of the legislation. Section XII of the ordinance is clearly distinct and severable from the salary schedule authorized by the ordinance; the taxpayer does not contend otherwise. Accordingly, we conclude that with the exception of section XII, ordinance No. 152-74 is valid.
4. Resolution No. 44-9-Sp 1 was not adopted in violation of the Winton Act or the city charter. Although a portion of the resolution purporting to grant the Certificated Employee Council a veto over future changes in school board policy is invalid, that provision is severable and does not taint the entire resolution.
As we have already discussed, the school board resolution at issue here cannot be overturned on the ground that it resulted from an illegal strike. The taxpayer, however, raises a series of additional objections to the resolution which we must now address. As we shall explain, although one of the taxpayer’s criticisms is well taken, that single defect does not invalidate the entire enactment and does not taint the salary schedule.
The Winton Act, while preserving many of the basic concepts of the original Brown Act, also introduced several innovative features into the public school labor relations process. Two of the innovations have drawn particular attention: first, the act rejected the traditional concept of a single employee “bargaining agent” and established a “negotiating council” (now termed the “certificated employee council”) based on proportional representation among all employee organizations which represent certificated employees within a district (Ed. Code, § 13085; see
California Federation of Teachers
v.
Oxnard Elementary Sch.
(1969)
The controversy in the instant case, however, does not directly involve either of these innovative features of the Winton Act, but rather concerns the proper interpretation of two separate sections of the act relating to the “meet and confer” process established by the legislation. The specific provisions at issue are Education Code section 13081, subdivision (d) and section 13088. Section 13081, subdivision (d) provides: “ ‘Meet and
As our earlier discussion of the facts indicates, in the instant case the school board, by formal resolution, adopted the provisions of a written memorandum of understanding to which representatives of the school district and the certificated employee council had agreed after a series of “meet and confer” sessions. The taxpayer now contends that this school board resolution fails in its entirety because it allegedly rests upon a purportedly “binding” agreement which the school board or its representatives had no authority to execute. In support of this contention, the taxpayer relies heavily on a portion of the Court of Appeal decision of
Grasko
v.
Los Angeles City Board of Education, supra,
In
Grasko,
the issüe before the court did not turn upon whether a resolution, formally adopted by a board of education, was valid or not under the Win ton Act, but rather whether, in the absence of such a resolution, a school board or its representatives had the authority to enter into a
binding written agreement
with representatives of employee associations. The
Grasko
court resolved this latter question in the negative, concluding that under the act a written agreement, though executed by representatives of both the employer and employees, could not,
in itself,
legally bind the school board. We agree with this conclusion. By the specific terms of section 13081, subdivision (d), the Winton Act provides that binding decisions arising out of the “meet and confer” process must be culminated
“by written resolution, regulation, or policy of the governing board
effectuating [the negotiators’] recommendations.” (Italics added.) This language leaves no doubt that the Legislature intended to require the members of the school board themselves to approve, by formal board action, any “recommendations” before they became legally binding upon the district. Section 13088, quoted above, simply reinforces this conclusion. For this reason, the written memoran
The legal duty sought to be enforced in the cаse at bar, however, does not arise from the contractual memorandum of understanding, but rather from resolution No. 44-9-Sp 1, a formal school board resolution adopted at an official meeting by the governing board of the school district. Far from supporting the taxpayer’s challenge to this resolution, the
Grasko
decision makes clear that such a formal resolution is entirely consistent with, and, in fact, contemplated by, the Winton Act. As the
Grasko
court observed: “[UJnder the Winton Act any agreements reached as a result of the meet and confer sessions must be implemented in the form of
resolutions,
regulations or policies of the governing board of the public school employer . . . .” (Italics added.) (
The taxpayer further contends, however, that the resolution at issue here is “tainted” by the “invalidity” of the preceding memorandum of understanding. The taxpayer appears to find three separate defects in the adopted procedure. In our view, the Winton Act fails to sustain any of the three objections.
First, the taxpayer points out that the resolution of the board simply incorporated the substantive terms of the memorandum of understanding; if the memorandum cannot stand, the taxpayer argues, neither can the resolution. This reasoning is simply a non sequitur. The memorandum of understanding is “invalid,” or, more precisely unenforceable, simply because the Winton Act provides that binding agreements in this context can only be implemented through formal board action. The fact that the board, by formal resolution, chose to adopt completely the recommendаtions resulting from the “meet and confer” process certainly does not invalidate the resolution, for the Winton Act specifically authorizes board resolutions “effectuating [the negotiators’] recommendations.” (Italics added.) (Ed. Code, § 13081, subd. (d).)
The taxpayer next objects to the written nature of the memorandum of understanding. Although the Winton Act contains no specific provision authorizing meeting and conferring representatives to commit their “recommendations” to writing (cf. Gov. Code, § 3505.1), such authorization may fairly be implied from the terms of the act. In defining the “meet and confer” process, section 13081, subdivision (d) explicitly
Thirdly, the taxpayer argues that the ostensible “binding” nature of the memorandum of understanding necessarily taints the subsequent board resolution, contending that in light of this “binding agreement” the school board failed to exercise its legislative discretion when it subsequently incorporated the memorandum into its resolution. In the first place, however, it is not at all clear from the terms of the document that the memorandum was intended to preclude the school board’s exercise of its own discretion. Although one passage of the memorandum does state that the memorandum shall be “binding and effective” from July 1, 1974, to June 30, 1975, and another section provides that “the Board will amend its policies ... to give full force and effect” to the memorandum, the initial paragraph of the document conditions the entire agreement upon the “adoption and ratification by [the representatives’] respective principals.” (Italics added.) This provision appears to leave the ultimate decision of adopting or rejecting the memorandum of understanding to the full school board.
Moreover, even if the memorandum had purported to be binding on the board without the board’s formal affirmance by “written resolution, regulation or policy,” the taxpayer has not established that the members of the board of education treated the memorandum as such. As we have explained, under the Winton Act the meeting and conferring representatives of the school board do not have authority to bind the board by signing a written agreement; the board retains the ultimate decision-making authority. Under well recognized legal principles, we must presume, in the absence of a contrary showing not demonstrated by the instant record, that the members of the school board complied with their official duty and exercised discretion in enacting the resolution at issue here. (Evid. Code, § 664; see, e.g.,
McGowan
v.
Ford
(1895)
Accordingly, we conclude that the existence of the March 29 memo
In addition to challenging the process by which resolution No. 44-9-Sp 1 was adopted, the taxpayer also attacks one particular section of the resolution, which purports to preclude the board from subsequently revising or altering any of the other provisions of the resolution without the approval of the certificated employee council. 17 The taxpayer contends that this clause represents an improper limitation on subsequent board action and affects a delegation of the board’s ultimate decision-making authority which is incompatible with the Winton Act. We believe the taxpayer’s objections are well taken and we therefore conclude that the challenged portion of the resolution is invalid.
It is a familiar principle of law that no legislative board, by normal legislative enactment, may divest itself or future boards of the power to enact legislation within its competence. (See, e.g.,
Thompson
v.
Board of Trustees
(1904)
Moreover, the challenged provision exhibits the additional defect of delegating the board’s ultimate policy-making authority to private parties in contravention of the Winton Act. Resolution No. 44-9 Sp 1 deals with a wide variety of matters within the board’s competence: among other subjects, it fixes the compensation for school board employees, allocates funds between different educational programs, and establishes the district policy on class size goals. The authority exercised by the board in passing on these matters has been specifically granted
to the school board
by various provisions of the Education Code and the San Francisco city charter (e.g., Ed. Code, §§ 931, 939, 1001, 1051, 1052,
Although the taxpayer further asserts that the invalidity of this segment of the resolution taints the entire resolution, in our view the provision is clearly severable. As this court has recently reiterated: “ ‘[I]n considering the issue of severability, it must be recognized that the general presumptiоn of constitutionality, fortified by the express statement of a severability clause, normally calls for sustaining any valid portion of a statute unconstitutional in part. This is possible and proper where the language of the statute is mechanically severable, that is, where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase or even single words. . . .’” (Italics deleted.)
(Santa Barbara Sch. Dist.
v.
Superior Court
(1975)
“The final determination depends on whether ‘the remainder ... is
Finally, we reаch the taxpayer’s concluding contention, in which he asserts that the school board resolution is invalid under section 5.101 of the San Francisco city charter. Section 5.101 provides in part that the school board shall adopt a schedule of salaries for the next ensuing year “between the 1st and 21st day of May of each year.” Resolution No. 44-9-Sp 1, however, was adopted on April 9, and the taxpayer contends that this early enactment voids the entire resolution.
(21) As a general rule, an ordinance or resolution of an inferior legislative body is invalid if the mandatory prerequisites to its enactment are not
substantially
observed. (See, e.g.,
Walker
v.
County of Los Angeles, supra,
We briefly recapitulate the conclusions we havе reached in this opinion. Initially, we hold that neither the ordinance nor the resolution may be invalidated on the basis that it was enacted as a result of an illegal strike. Second, we have determined that although the portion of the ordinance establishing a dental plan is invalid, the present pleadings do not demonstrate that the ordinance’s salary schedule conflicts with the city charter’s prevailing wage provisions. Finally, we have concluded that the school board resolution was not adopted in violation of the Winton Act, but that a severable portion of the resolution, purporting to grant the certificated employee council a veto over future board decisions, is invalid.
Let a writ of mandate issue, compelling the respondent controller to draw and deliver warrants reflecting the salary increases granted by ordinance No. 152-74 and resolution No. 44-9-Sp 1 as well as prejudg,nent interest at the legal rate on the withheld salary increases. (Civ. Code, § 3287, subd. (a); see
Sanders
v.
City of Los Angeles
(1970)
Wright, C. J., McComb, J., Mosk, J., Sullivan, J., Clark, J., and Richardson, J., concurred.
Petitioners’ application for a rehearing was denied May 1, 1975, and the judgment was modified to read as printed above.
Notes
Returns to the alternative writ have been filed by a number of parties. Respondent Cooper has filed a brief return, confirming that he has refused to draw warrants reflecting the new salary increases and explaining his action on the ground that the pending taxpayer actions cast doubt on the validity of such increase; Cooper’s return stipulates that counsel for real party in interest Bangs will defend his refusal to comply with the new enactments. Taxpayer Bangs has filed the main return in opposition to the issuance of a peremptory writ. The employee associations that participated in the “meet and confer” sessions are also named as real parties in interest in .this mandate proceeding, and have filed returns urging this court to issue the requested writ.
In addition to these formal pleadings, numerous amicus briefs have been filed in support of both sides of this controversy.
The relevant portion of section 8.401 states: “The board of supervisors may approve, amend or reject the schedule of compensation proposed by the civil service commission; provided, that before making any amendment thereto the data considered by the board of supervisors as warranting such amendment shall be transmitted to the civil service commission for review and analysis and the commission shall make a report thereon to the board of supervisors, together with a report as to what other changes, and the cost thereof such proposed amendments would require to maintain an equitable relationship with other rates in such schedule.”
In other words, employees whose salaries the commission found to be 1 percent or less below prevailing wages would receive a 2 percent raise; employees whose salaries were found to be 1 to 4 percent below prevailing wages would receive a 3 percent raise; and employees whose salaries were found to be 4 percent or more below prevailing wages would receive a 5 percent raise.
See
Los Angeles Unified School Dist.
v.
United Teachers
(1972)
The only general state statute which specifically speaks to the public employee strike issue is Labor Code section 1962, which prohibits strikes by firefighters. The employee associations argue that the absence of a similar statutory prohibition of other public employee strikes represents an implicit authorization of such action. (Cf.
Los Angeles Met. Transit Authority
v.
Brotherhood of Railroad Trainmen
(1960)
See, e.g., Ohio Revised Code, sections 4117.01-4117.05; N.Y. Civil Service Law, Consolidated Laws, chapter 7, article 14, sections 200-212 (“Taylor Law”). See generally
We explained in our recent decision in
County of Los Angeles
v.
Superior Court
(Burroughs) (1975) ante, pp. 721, 726 [
Although petitioner here, like the taxpayer in the
County of Los Angeles
case, relies heavily upon language in our recent decision in
Strumsky
v.
San Diego County Employees Retirement Assn.
(1974)
See generally Wellington & Winter, Structuring Collective Bargaining in Public Employment (1970) 79 Yale L.J. 805, 839-842; Smith, State and Local Advisory Reports on Public Employment Labor Legislation: A Comparative Analysis (1969) 67 Mich.L.Rev. 891, 910-914; Ligtenberg, Some Effects of Strikes and Sanctions—Legal and Practical (1973) 2 J.L. & Ed. 235, 247-252; Comment, California Assembly Advisory Council’s Recommendations on Impasse Resolution Procedures and Public Employee Strikes (1974) 11 San Diego L.Rev. 473, 475-481; Comment, Analysis of the Comprehensive Approach to the Public Employee Strike Problem (1973) 44 Miss. L.J. 766.
As one commentator has recently observed: “[WJhile statutes have banned strikes as a matter of law, even those with the most draconian sanctions have failed to prevent them as a matter of fact when bargaining deadlocks occur. Indeed, the imposition of sanctions may be counterproductive, for both union and government officials may benefit from such occasions for demonstrating personal intrepidity without dealing with the hard problems of settling the underlying dispute.” (Bernstein, Alternatives to the Strike in Public Labor Relations (1971) 85 Harv.L.Rev. 459,462-463.)
The experience under the New York Condon-Wadlin Act is illuminating. The Condon-Wadlin Act, adopted in 1947, provided for the automatic dismissal of any J striking employee; the act also declared that if such an employee should be rehired, the worker would be ineligible for any pay raise for three years after the strike, and would remain on “probationary” status for five years. In 1966, a transit worker strike occurred in New York City; because of the strict terms of the Condon-Wadlin Act the city was unable to negotiate a speedy settlement. The impasse was only solved when, after a lengthy strike, the state legislature enacted emergency legislation, suspending the
Although the city asserts that the taxpayer lacks “standing” to rely on the charter’s prevailing wage provisions, arguing that such provisions are basically “minimum wage” laws which can only be enforced at the behest of employees, numerous California decisions have entertained challenges brought by taxpayers claiming that a given wage exceeds prevailing wages. (See, e.g.,
City and County of S. F.
v.
Boyd, supra,
The taxpayer additionally contends that the city failed to comply fully with one of the procedural requirements mandated by section 8.401 of the charter. As noted above,
Section XII of the ordinance provides in relevant part: “A dental plan shall be provided to permanent employees whose compensation are subject to the provisions of section 8.400 and section 8.401 of the charter. The city’s contribution shall be limited to an amount not to exceed $7.00 per month, per employee, and the total city yearly contribution shall not exceed $500,000. The benefits provided under the dental plan shall be limited to permanent employees only, exclusive of dependents.”
Although the city contends that the validity of the dental plan provision is not properly at issue in the present proceeding, we do not agree. It has long been clear, of course, that fringe benefits, such as the challenged dental plan, form an integral part of an employee’s compensation or “full salary” (see, e.g.,
Mass.
v.
Board of Education
(1964)
Section 8.421 provides: “The medical plans in effect on the effective date hereof shall continue in force and effect until rescinded or superseded by a new plan or plans adopted by the health service board and approved by ordinance of the board of supervisors, adopted by three-fourths of its members.”
Section 8.422 provides in relevant part: “The board shall have power and it shall be its duty by a two-thirds vote of the entire membership of the health service board to adopt a plan or plans for rendering medical care to members of the system or for the indemnification of the cost of said care, or for obtaining and carrying insurance against such costs or for such care....
“The board of supervisors shall receive an actuarial report of the costs and effect o! any proposed change in the benefits of the health service system or ratio of contribution
The charter provisions establishing a San Francisco Health Service System were initially approved by the electorate in 1937. As originally enacted, the applicable charter section defined the term “medical care” to include “the services of physicians, surgeons, nurses. . . . and denial, optical and other medical treatments and services.” (Former § 172.1, subd. 5.) In 1957, the electorate substituted the present section 8.430, which prоvides simply that: “The term ‘medical care’ shall be defined by the health services board.” As the 1957 election brochure argument clearly implies, the amendment was not intended to withdraw the health service board’s authority with respect to the previously specified services, but rather was apparently aimed at liberalizing employment benefits by empowering the board to include additional health services within the term “medical care.”
Section 3.426 of the charter, which provides that for purposes of the Health Service System the term “physician” includes “dentists,” buttresses our conclusion that the charter provisions vest the health service board with exclusive jurisdiction to initiate a city-financed dental plan.
Since 1968, the Meyers-Millas-Brown Act (Gov. Code, § 3500 et seq.) has constituted the primary state legislation governing the labor affairs of public employees employed by local governments. The original Brown Act, however, continues to govern the labor relations of many state employees. (See generally Grodin, Public Employee Bargaming in California: The Meyers-Milias-Brown Act in the Courts (1972) 23 Hastings L.J. 719, 719-721.)
The second numbered paragraph of the memorandum, incorporated into the resolution, provides: “No change, revision, alteration or modification of this Memorandum of Understanding shall be valid unless the same is ratified by the Board and by action of the constituent organizations of the Certificated Employees Council under the internal rules of the Council, and endorsed in writing by the Board’s representative and the chairman of the Certificated Emрloyees Council.”
It should be noted, however, that our voiding of this portion of the resolution does not leave the school board free to alter all of the provisions of resolution No. 44-9-Sp 1 at will. Past cases clearly indicate, for example, that a school board may not lower salaries fixed by its salary schedule after the beginning of the school year. (See, e.g.,
Rible
v.
Hughes
(1944)
The resolution provides in pertinent part: “If any provision of the Memorandum of Understanding or any application thereof to any teacher or group of teachers is held to be contrary to law by a court of competent jurisdiction, such provision or application will not be deemed valid and subsisting, except to the extent permitted by law, but all other provisions or applications will continue in full force and effect.”
The possibility that the employee organizations may have declined to agree to the memorandum of understanding without the inclusion of such a clause is, of course, entirely irrelevant to the question of the validity of the resolution, adopted pursuant to the independent discretion of the board.