Super. Ct. No. RG09461220) Trial Court: Alameda County Superior Court. Trial Judge: Honorable John M. True III.
The opinion of the court was delivered by: Baskin, J.*fn8
CERTIFIED FOR PUBLICATION
Deborah Edgerly is the former city administrator of the City of Oakland (City). Edgerly sued the City in 2009, alleging that then-Mayor Ron Dellums (Mayor or Dellums) wrongfully terminated Edgerly's employment in retaliation for her refusal to violate the City's charter, municipal code, and civil service rules and resolutions.*fn1
Edgerly claims that the trial court erred when it sustained a demurrer to the first two of her three causes of action for violation of the statewide whistleblower statute set forth in Labor Code section 1102.5, subdivision (c) (1102.5(c)).*fn2 Edgerly also claims that the trial court erred when it dismissed the third whistleblower cause of action on a motion for summary adjudication.
The primary question presented by this appeal is a question of first impression under California law: Should alleged violations of a charter city's municipal law be deemed violations of state law for purposes of section 1102.5(c)? Based on principles of statutory construction and public policy considerations, we hold that they should not, and accordingly, we affirm.
On July 6, 2009, Edgerly filed a complaint alleging three causes of action for retaliation under the whistleblower statute, and one cause of action for gender discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) The City filed a general demurrer to all three of the whistleblower causes of action.
The trial court sustained the demurrer with leave to amend as to the first two causes of action, on the ground Edgerly did not identify any violation of state law. The trial court overruled the demurrer as to the third whistleblower cause of action, which alleged a violation of Government Code section 87100.
Edgerly filed a first amended complaint (FAC), and the City again demurred to all three whistleblower causes of action. This time, the trial court sustained the City's demurrer to the first and second causes of action without leave to amend.
In these first two causes of action, Edgerly alleged that she was terminated in retaliation for her refusal to agree to the Mayor's violations of the City charter. The trial court ruled that Edgerly did not show the misconduct "would result in a violation of a state statute, rule or regulation." The trial court again overruled the demurrer as to the third cause of action, that Edgerly alleged a violation of a state statute--Government Code section 87100.
While the third whistleblower cause of action survived demurrer, the trial court later granted the City's motion for summary adjudication of that cause of action because Edgerly failed to produce evidence showing that a state statute was violated. A jury trial on Edgerly's remaining (fourth) cause of action for gender discrimination resulted in a verdict in the City's favor. This appeal followed.*fn3
B. Plaintiff's Allegations.
The factual allegations of Edgerly's declaration opposing the summary adjudication motion are fully consistent with the allegations of the FAC. To avoid duplication, we do not separately set forth the ultimate facts recited in that pleading. The following facts are taken from Edgerly's opposition declaration or from matters of which we have taken judicial notice.
Edgerly served as the City's finance director from 1997 until 2003. In 2003, then-Mayor Jerry Brown appointed her as city manager. Following a revision to the charter, the position of city manager was renamed city administrator in 2004. Pursuant to the City charter, the city administrator served at the pleasure of the mayor and could be discharged at any time, for any reason. (Oak. City Charter § 305(e) (Charter).)
As city administrator, it was part of Edgerly's job duties to: (1) designate, appoint, discipline, or remove directors, department heads, or assistants (Charter §§ 502-503); (2) execute all City laws and ordinances (Charter § 504(a)); and (3) control and administer the financial affairs of the City (Charter § 504(e)). Specifically, as city administrator, Edgerly had authority over various City departments and personnel, including the police department. She was also responsible for the City's budget and expenditures. If Edgerly had any concerns about the allocation of City funds, she would confer with the city attorney's office.
In 2007, Dellums replaced Brown as Mayor of the City. Knowing that the new Mayor could replace her at any time, Edgerly developed an exit plan.
In October 2007, Edgerly gave notice of her planned retirement set for July 31, 2008. The Mayor agreed to this retirement date. However, on June 27, 2008, a little over a month before the planned retirement date, the Mayor placed Edgerly on administrative leave. The Mayor terminated Edgerly's employment on July 1, 2008, effective immediately. Edgerly claimed she was wrongfully terminated as a whistleblower because the Mayor asked her to violate several provisions of the City's charter, which she refused to do.
In the course of carrying out her duties as city administrator under Dellums, Edgerly questioned several expense reimbursement requests. These included requests regarding the Mayor's personal expenditures, including payment of a cellular phone bill for the Mayor's wife, overtime pay for the Mayor's driver, and increased utility costs associated with security upgrades at the Mayor's residence.
Edgerly did not know if the Mayor was aware of the questions about the cellular phone bill; she also could not recall if there had been any investigation regarding this reimbursement request. Ultimately, Edgerly approved payment of this request in April 2008, and it was decided that the cellular phone in the Mayor's wife's name, which previously had been in the Mayor's name, would be returned to his name going forward.
As for the overtime pay for the Mayor's driver, Edgerly was unaware whether anyone ever told the Mayor that there was an issue about whether the overtime could be charged if the driver was driving Mrs. Dellums as opposed to the Mayor. Edgerly approved the overtime payment for the driver and advised the Mayor's office that future overtime bills needed to be for driving the Mayor, not his wife.
With respect to the reimbursement request for the utility bills, Edgerly sought an opinion from the city attorney's office regarding whether such a reimbursement was permissible. Edgerly could not recall receiving any direction from the city attorney on this issue. Nevertheless, Edgerly testified that she told the Mayor that she could not reimburse this request. She could not, however, remember what, if anything, the Mayor said in response when she advised him that she could not ...