APPEAL from a judgment (denying petition for writ of administrative mandamus) of the Superior Court of Sacramento County, Lloyd G. Connelly, Judge. Reversed. (Super. Ct. No. 07CS00079).
The opinion of the court was delivered by: Butz, J.
CERTIFIED FOR PUBLICATION
Article XIII B, section 6 of the California Constitution*fn1 requires the state to bear the costs of new mandates on local government. However, if a local government entity voluntarily undertakes the costs, they do not constitute a reimbursable state mandate. (See, e.g., San Diego Unified School Dist. v. Commission on State Mandates (2004) 33 Cal.4th 859, 884-887 (San Diego Unified School Dist.); Department of Finance v. Commission on State Mandates (Kern High School Dist.) (2003) 30 Cal.4th 727, 742-745 (Kern High School Dist.).) The Public Safety Officers Procedural Bill of Rights Act (POBRA),*fn2 initially enacted in 1976 (Stats. 1976, ch. 465, § 1, p. 1202), requires state and local government agencies that employ peace officers to provide them with procedural rights and protections when they are subjected to investigation, interrogation or discipline. (Gov. Code, § 3300 et seq.)
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. (2004) 33 Cal.4th 859 and other applicable court decisions." (Gov. Code, § 3313, added by Stat. 2005, ch. 72, § 6, eff. July 19, 2005.)
Pursuant to Government Code section 3313, on April 26, 2006, the Commission held a public hearing. The only pertinent factual "testimony" at the hearing was an assertion that most school districts do not employ peace officers: "Of the approximately 1,200 local educational agencies receiving state school safety grant funding, only approximately 140 of those reported using the funding for hiring peace officers." After the matter was submitted, the Commission adopted a statement of decision reconsidering its 1999 statement of decision. The Commission decided that POBRA imposes, consistent with San Diego Unified School Dist., supra, 33 Cal.4th 859, a partial, reimbursable state-mandated program on cities, counties, school districts, and special districts identified in Government Code section 3301 that employ peace officers. As to the school districts and special districts, the Commission reasoned as follows:
"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] case, the requirements of the [POBRA] legislation would not constitute a state-mandated program within the meaning of article XIII B, section 6 for school districts and the special districts that employ peace officers 'for the simple reason' that the ability of the school district or special district to decide whether to employ peace officers 'could control or perhaps even avoid the extra costs' of the [POBRA] legislation. But here, the Legislature has declared that, as a matter of statewide concern, it is necessary for [POBRA] to apply to all public safety officers, as defined in the legislation. As previously indicated, the California Supreme Court [in Baggett v. Gates (1982) 32 Cal.3d 128, 139-141] concluded that the peace officers identified in Government Code section 3301 of the [POBRA] legislation provide an 'essential service' to the public and that the consequences of a breakdown in employment relations between peace officers and their employers would create a clear and present threat to the health, safety, and welfare of the citizens of the state.
"In addition, in 2001, the Supreme Court [in In re Randy G. (2001) 26 Cal.4th 556, 562-563] determined that school districts, apart from education, have an 'obligation to protect pupils from other children, and also to protect teachers themselves from violence by the few students whose conduct in recent years has prompted national concern.' The court further held that California fulfills its obligations under the safe schools provision of the Constitution (Cal. Const., art. I, § 28, subd. (c)) by permitting local school districts to establish a police or security department to enforce rules governing student conduct and discipline. The arguments by the school districts regarding the safe schools provision of the Constitution caused the Supreme Court in San Diego Unified [School Dist.] to question the application of the City of Merced case.
"Thus, as indicated by the Supreme Court in San Diego Unified [School Dist., supra, 33 Cal.4th 859], a finding that the [POBRA] legislation does not constitute a state-mandated program for school districts and special districts identified in Government Code section 3301 would conflict with past decisions like Carmel Valley [Fire Protection Dist. v. State (1987) 190 Cal.App.3d 521, 537], where the court found a mandated program for providing protective clothing and safety equipment to firefighters and made it clear that '[p]olice and fire protection are two of the most essential and basic functions of local government.' The constitutional definition of 'local government' for purposes of article XIII B, section 6 includes school districts and special districts. (Cal. Const., art. XIII B, § 8[, subd. (d)].)
"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 police or a municipal water district's need for park rangers with the authority and powers conferred upon peace officers to issue citations and make arrests in district recreational facilities. ([Pen.] Code, § 830.34, subd. (d) [subd. (d) added by] & Wat. Code, [§ 71341.5, added by] Stats. 2004, ch. 799, [§§ 1 & 2]; [see] Sen. Com. on Public Safety, analysis of Assem. Bill No. 1119 [(2004 Reg. Sess.)] [granting 'essential authority' to municipal water districts to employ park rangers with the powers conferred on peace officers by Pen. Code, § 830.34, subd. (d),] [italics added].) Rather, the specific security and law enforcement needs of the districts and agencies compel their decisions to employ peace officers and prevent them from controlling or avoiding the costs of providing [POBRA] procedural protections, much as student misconduct that jeopardizes the safe, secure and peaceful learning environment for other students may provide the practical compulsion for a school district to pursue discretionary expulsion proceedings and subject the district to the costs of mandated hearing procedures. (See San Diego Unified School Dist., supra, 33 Cal.4th at p. 887, fn. 22.) In marked contrast, the city in City of ...