Lead Opinion
Opinion
Article XIII B, section 6 of the California Constitution
In this case plaintiff state Department of Finance (Finance) petitioned for a writ of administrative mandamus to overturn the decision of defendant Commission on State Mandates (the Commission) that POBRA constitutes a state-mandated program for school districts and special districts that employ peace officers. The superior court denied the petition. We decide POBRA is not a reimbursable mandate as to school districts and special districts that are permitted by statute, but not required, to employ peace officers who supplement the general law enforcement units of cities and counties. The judgment denying Finance’s petition for writ of administrative mandamus is reversed.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, the City of Sacramento filed a test claim with the Commission pursuant to the versions of Government Code sections 17521 and 17560 then in effect, seeking reimbursement under article XIII B, section 6, of the costs incurred in complying with the POBRA procedural requirements. In 1999, pursuant to the version of Government Code section 17551 then in effect, the Commission held a public hearing on the test claim and issued a statement of decision determining that certain POBRA procedural protections exceeded federal and state constitutional due process requirements and imposed reimbursable state-mandated costs upon cities, counties, school districts and special districts under article XIII B, section 6. In 2000, pursuant to Government Code section 17557, the Commission adopted parameters and guidelines for the reimbursement of the costs incurred by those local government entities in providing the POBRA procedural protections determined to be state mandated.
In 2005, the Legislature enacted Government Code section 3313, directing the Commission to “review its statement of decision regarding the [POBRA] test claim and make any modifications necessary to this decision to clarify whether the subject legislation imposed a mandate consistent with the California Supreme Court Decision in [San Diego Unified School Dist., supra,]
“For the reasons below, the Commission finds that the [POBRA] legislation constitutes a state-mandated program for school districts and the special districts identified in Government Code section 3301 that employ peace officers.
“Under a strict application of the City of Merced [v. State of California (1984) 153 Cal.App.3d 777 [
“In addition, in 2001, the Supreme Court [in In re Randy G. (2001)
“Thus, as indicated by the Supreme Court in San Diego Unified [School Dist., supra,
“Accordingly, the Commission finds that [POBRA] constitutes a state-mandated program for school districts that employ peace officers. The Commission further finds that [POBRA] constitutes a state-mandated program for the special districts identified in Government Code section 3301. These districts include police protection districts, harbor or port police, transit police, peace officers employed by airport districts, peace officers employed by a housing authority, and peace officers employed by fire protection districts.” (Fns. omitted.)
In January 2007, Finance petitioned for a writ of administrative mandamus to overturn the decision of the Commission as to school districts and special districts permitted but not required to hire peace officers. The Commission answered, opposing the petition. After oral argument the matter was submitted. Thereafter, on July 3, 2007, the trial court issued its ruling, denying the petition on the following essential reasoning:
“As a practical matter, the establishment of a police department and the employment of peace officers by school districts, community college districts and other local agencies is not an optional program: when the districts and agencies decide to exercise their statutory authority to employ peace officers, they do not have a genuine choice of alternative measures that meet their agency-specific needs for security and law enforcement, such as a large urban school district’s need for security and police officers to supplement city
“To the extent that school districts, community college districts and other local government agencies do exercise discretion in deciding to employ peace officers identified in Government Code section 3301, the decisions do not involve the type of discretion that would or should preclude reimbursement of state-mandated program costs under [article XIII B,] section 6. When the districts and agencies decide to use their specific statutory authorities and powers to employ peace officers, they determine how to use the authorities and powers to fulfill their existing obligations and functions, not to undertake new program activities. If such discretionary decisions by the districts and agencies are found to foreclose the districts and agencies from obtaining reimbursement of the [POBRA] costs triggered by their employment of peace officers, the state would be able to shift financial responsibility for carrying out new state-mandated program activities to the districts and agencies, in contravention of the intent underlying [article XIII B,] section 6 and [Government Code] section 17514. (San Diego Unified School Dist., supra, 33 Cal.4th at pp. 887-888.) Similarly, as the California Supreme Court observed in San Diego Unified School Dist., the Court of Appeal in Carmel Valley [Fire Protection Dist. v. State of California], supra,
Finance appeals from the judgment denying the petition.
DISCUSSION
Finance contends that the trial court erred in upholding the Commission’s determination that, as to districts riot compelled by statute to employ peace officers, the POBRA requirements are a reimbursable state mandate.
I. Case Law on Incurring Costs Voluntarily
The issue here principally turns on three leading opinions, commencing with City of Merced v. State of California, supra, 153 Cal.App.3d 777 (City of Merced). City of Merced holds that an amendment of the eminent domain law requiring compensation for business goodwill is not a reimbursable mandate under Revenue and Taxation Code former section 2231, the antecedent of article XIII B, section 6. (City of Merced, supra,
City of Merced is critiqued in the second case of the triad, Kern High School Dist., supra, 30 Cal.4th at pages 737-740. In Kern High School Dist., the Commission decided that two statutes requiring school site councils and advisory committees for certain educational programs to provide notice of meetings and to post agendas for those meetings constituted a reimbursable state mandate under article XIII B, section 6. The Supreme Court held that the statutes do not constitute a reimbursable state mandate, as districts were neither legally compelled nor as a practical matter compelled to participate in the programs. (30 Cal.4th at pp. 745, 754.)
In Kern High School Dist., the Department of Finance asserted in its brief that based upon the language of article XDI B, section 6, and on the City of Merced, “a reimbursable state mandate arises only if a local entity is ‘required’ or ‘commanded’ — that is, legally compelled — to participate in a program (or to provide a service) that, in turn, leads unavoidably to increasing the costs incurred by the entity.” (Kern High School Dist., supra,
The reimbursable mandate proponents argued that the legal compulsion standard was too narrow and that they should also be reimbursed because they had been compelled “as a practical matter” to participate in the programs. (Kern High School Dist., supra,
“In sum, the circumstances presented in the case before us do not constitute the type of nonlegal compulsion that reasonably could constitute, in claimants’ phrasing, a ‘de facto’ reimbursable state mandate. Contrary to the situation that we described in City of Sacramento [v. State of California (1990)]
The last case of the triad that governs this case is San Diego Unified School Dist., supra,
“The Department and the Commission argue . . . that any right to reimbursement for hearing costs triggered by discretionary expulsions — even costs limited to those procedures that assertedly exceed federal due process hearing requirements — is foreclosed by virtue of the circumstance that when a school pursues a discretionary expulsion, it is not acting under compulsion of any law but instead is exercising a choice. In support, the Department and the Commission rely upon Kern High School Dist., supra,
The Supreme Court went on to state, in San Diego Unified School Dist.:
“The District and amici curiae on its behalf (consistently with the opinion of the Court of Appeal below) argue that the holding of City of Merced, supra,
“Upon reflection, we agree with the District and amici curiae that there is reason to question an extension of the holding of City of Merced so as to preclude reimbursement under article XIII B, section 6 of the state Constitution and Government Code section 17514, whenever an entity makes an initial discretionary decision that in turn triggers mandated costs. Indeed, it would appear that under a strict application of the language in City of Merced, public entities would be denied reimbursement for state-mandated costs in apparent contravention of the intent underlying article XIII B, section 6 of the state Constitution and Government Code section 17514 and contrary to past decisions in which it has been established that reimbursement was in fact proper. For example, as explained above, in Carmel Valley [Fire Protection Dist. v. State of California], supra,
II. Costs of POBRA Are Incurred Voluntarily by School Districts and Special Districts That Are Permitted but Not Required to Employ Peace Officers
The result of the cases discussed above is that, if a local government participates “voluntarily,” i.e., without legal compulsion or compulsion as a
The Commission points to two considerations to overcome the rale that participation in a voluntary program means additional costs are not mandates. The first is that the Legislature has declared that application of POBRA procedures to all public safety officers is a matter of statewide concern. The second consideration is that the Legislature has promulgated various rights to public safety
The consideration that the Legislature has determined that all public safety officers should be entitled to POBRA protections is immaterial. It is almost always the case that a rule prescribed by the Legislature that applies to a voluntary program will, nonetheless, be a matter of statewide concern and application. For example, the rale in Kern High School Dist. was that any district in the state that participated in the underlying funded educational programs was required to abide by the notice of meetings and agenda posting requirements. When the Legislature makes such a rale, it only says that if you participate you must follow the rale. This is not a rale that bears on compulsion to participate. (Cf. Kern High School Dist., supra,
The Commission submits that this case should be distinguished from City of Merced and Kern High School Dist. because the districts “employ peace officers when necessary to carry out the essential obligations and functions established by law.” However, the “necessity” that is required is facing “ ‘certain and severe . . . penalties’ such as ‘double . . . taxation’ or other ‘draconian’ consequences.” (Kern High School Dist., supra,
The Commission notes that Carmel Valley Fire Protection Dist. v. State of California characterizes police protection as one of “ ‘the most essential and basic functions of local government.’ ” (Carmel Valley Fire Protection Dist. v. State of California, supra,
Thus, as to cities, counties, and such districts, new statutory duties that increase the costs of such services are prima facie reimbursable. This is true, notwithstanding a potential argument that such a local government’s decision is voluntary in part, as to the number of personnel it hires. (See San Diego Unified School Dist., supra,
However, the districts in issue are authorized, but not required, to provide their own peace officers and do not have provision of police protection as an essential and basic function. It is not essential unless there is a showing that, as a practical matter, exercising the authority to hire peace officers is the only reasonable means to carry out their core mandatory functions. As there is no such showing in the record, the Commission erred in finding that POBRA constitutes a state-mandated program for school districts and the special districts identified in Government Code section 3301. Similarly, the superior court erred in concluding as a matter of law that, “[a]s a practical matter,” the employment of peace officers by the local agencies is “not an optional program” and “they do not have a genuine choice of alternative measures that meet their agency-specific needs for security and law enforcement. . . .”
DISPOSITION
The judgment is reversed. Each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)
Blease, J., concurred.
Notes
Article references are to the California Constitution.
Article Xm B, section 6, subdivision (a), in pertinent part, states as follows: “Whenever the Legislature or any state agency mandates a new program or higher level of service on any local government, the State shall provide a subvention of funds to reimburse that local government for the costs of the program or increased level of service, [subject to specified exceptions].”
The statute’s commonly used name is the Peace Officers Bill of Rights Act and the acronym POBRA is one used by the Supreme Court. (See Mays v. City of Los Angeles (2008)
Government Code section 17514 states: “ ‘Costs mandated by the state’ means any increased costs which a local agency or school district is required to incur after July 1, 1980, as a result of any statute enacted on or after January 1, 1975, or any executive order implementing any statute enacted on or after January 1, 1975, which mandates a new program or higher level of service of an existing program within the meaning of Section 6 of Article XmB of the California Constitution.”
Whether a statute imposes a reimbursable state mandate is said to be a question of law. (E.g., County of San Diego v. State of California (1997)
E.g., article I, section 28, subdivision (f) (announcing a right to attend grade school campuses that are safe); Education Code section 38000, subdivision (a) (authorizing school boards to hire peace officers to ensure safety of pupils and personnel); and Education Code section 72330, subdivision (a) (authorizing a community college district to employ peace officers as necessary to enforce the law on or near campus).
E.g., Penal Code sections 830.31 through 830.35, 830.37 (powers of arrest extend statewide), and 12027 (permitting peace officers to carry concealed weapons).
Concurrence Opinion
The Public Safety Officers Procedural Bill of Rights Act (POBRA; Gov. Code, § 3300 et seq.) requires that peace officers employed by state and local governments must be provided with procedural rights and protections when they are subjected to investigation, interrogation, or discipline.
In this case, both the Commission on State Mandates and the trial court concluded that as to local school districts and special districts which are permitted by statute, but not required, to employ peace officers, the requirements of POBRA are a reimbursable mandate within the meaning of article xni B, section 6 of the California Constitution, which compels the state to bear the costs of new mandates imposed on local governments.
The Commission on State Mandates reasoned that finding POBRA requirements are not reimbursable mandates would conflict with various laws that require local districts to provide safe school environments for students.
My colleagues disagree with the commission and the trial court. They conclude that because the local districts are not required to employ peace officers, and since there was no showing that exercising the authority to hire peace officers is the only reasonable means to carry out the districts’ core mandatory functions, POBRA is not a reimbursable mandate as to those districts.
My instinct tells me the trial court was right in concluding that, even if such local districts are not compelled by law to hire peace officers to perform the districts’ core functions, they must do so “as a practical matter.” However, instinct is insufficient to support a legal conclusion.
As the Department of Finance points out, the administrative record “is silent concerning the law enforcement needs and practices of [K-12] school districts and special districts,” and there is “no evidence showing that K-12 school districts cannot meet the safe schools requirement by relying on or contracting with city and county law enforcement.” Indeed, as the department notes, the trial court “correctly observed that one could not know, ‘based on facts in this administrative record[,] that there is any law enforcement problem in any school in the State or the police have failed to provide adequate police services.’ ”
In sum, the department persuasively argues: “Although state law authorizes these districts to hire peace officers, it does not require them to do so. Neither does state law penalize the districts in any way if they decide not to hire peace officers. Thus, state law does not legally or practically compel the districts to hire peace officers. And the districts are not entitled to reimbursement merely because their discretionary decision to hire officers triggers [POBRA]-related costs.”