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Indio Police Command Unit Association v. City of Indio

California Court of Appeals, Fourth District, Third Division

September 15, 2014

INDIO POLICE COMMAND UNIT ASSOCIATION et al., Plaintiffs and Respondents,
v.
CITY OF INDIO et al., Defendants and Appellants.

Appeal from a judgment and postjudgment order of the Superior Court of Riverside County, No. INC1203493 Randall Donald White, Judge.

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COUNSEL

Jones & Mayer, Paul R. Coble and Jamaar M. Boyd-Weatherby for Defendants and Appellants.

Law Offices of Stephen J. Horvath, Stephen J. Horvath and Marc J. Berger for Plaintiffs and Respondents.

OPINION

O’LEARY, P. J.

The City of Indio (the City) and its chief of police appeal from a judgment granting a permanent injunction in favor of the Indio Police Command Unit Association (the PCU), and two of its police officer members, prohibiting the City from implementing a planned reorganization of the City’s Police Department’s (the Department’s) command staff until it demonstrated full compliance with the “meet and confer in good faith” requirements of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500.5 et seq.).[1] They also

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appeal from the postjudgment order granting the PCU its attorney fees under Code of Civil Procedure section 1021.5. The appellants contend the injunction was improper because the City sufficiently complied with its meet and confer obligations, and the trial court abused its discretion bye awarding the PCU attorney fees. We reject their contentions, affirm the judgment and postjudgment order, and remand with directions.

FACTS & PROCEDURE

The PCU

The PCU is the employee organization that represents the Department’s sworn command staff in the positions of sergeant, lieutenant, and captain, and it is the only organization with the right to meet and confer on behalf of those command staff officers. In 2008, the PCU had 19 members, but by 2012, due to attrition and hiring freezes, its membership was down to 14. Police Lieutenant Johnny Romero (Lt. Romero) was the PCU’s elected president; Police Sergeant Christopher Hamilton (Sgt. Hamilton) was the PCU’s elected vice-president; and Police Lieutenant Phillip Han (Lt. Han), was the PCU’s elected secretary/treasurer.

The PCU negotiated a Comprehensive Memorandum of Understanding with the City on behalf of its members in effect from July 1, 2009, to June 30, 2012 (the MOU) governing wages, hours, and other terms and conditions of employment. Relevant here, paragraph 7.2 of the MOU provides that although the City has the right to institute layoffs, “Prior to instituting any layoffs, the City agrees to meet with the PCU to discuss alternatives.”

In June 2011, during the City’s fiscal crisis, the PCU and the City agreed to a “Side Letter” providing for furloughs and reduction in benefits. The Side Letter provided the MOU would be extended through June 30, 2013, and all recruitments for new or vacant positions would be subject to city council approval.

Planned Reorganization

In January 2012, Richard P. Twiss (Chief Twiss) was hired as police chief. On March 13, 2012, Chief Twiss wrote to the PCU’s legal counsel, Wendell Phillips, informing the PCU he intended to implement a “strategic reorganization” of the Department’s command structure that would eliminate the captain and the four lieutenant positions. The reorganization would create three new positions—two division commanders (sworn positions) and one administrative services manager (an unsworn position), to replace the Department’s second tier and midlevel command management. Once implemented, there

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would be nine sergeant positions and five corporal positions. Chief Twiss advised Phillips he planned to discuss the reorganization with the involved employees and pursuant to the MOU was requesting to meet with Phillips to discuss the matter. The reorganization plan would become effective July 1, 2012.

Phillips replied via an e-mail on March 14, 2012, seeking further clarification and inquiring if the Department was attempting to engage in the meet and confer requirement of the MMBA. The Department’s legal counsel responded on March 15, that whether a reorganization took place was not subject to collective bargaining under the MMBA because reorganization of the Department’s command structure was a management right. However, the City agreed the impact any such reorganization would have on employees was subject to collective bargaining, and the City and Chief Twiss intended to meet and confer with regard to those impacts. The Department’s attorney stated Chief Twiss was still working on the proposed reorganization plan, and after it was finished and approved by the city manager, the plan would be provided to the PCU and there would be a meet and confer opportunity.

On April 3, the City’s human resources manager, advised Lt. Romero, as president of the PCU, in writing about the final details of the reorganization plan. The captain and lieutenant positions would be eliminated and replaced with two division commanders, who would be part of the executive management group, and one administrative manager, who would be part of the unrepresented group, and layoffs would be required. Under the MOU’s seniority rules, the current captain could bump down to one of the new commander position (which was a lower classification than captain). However, because the commander position would be a higher classification than lieutenant, the current lieutenants would have to compete for the second commander position. A qualified lieutenant could bump down to the administrative manager position, or a qualified sergeant could make a lateral move to that new position. Under seniority rules three current lieutenants, including Lt. Romero, were eligible to bump down to sergeant positions. One current lieutenant, Lt. Han, had the least seniority in the entire command staff, and would be laid off (unless he was hired as the administrative manager). Three current sergeants, including Sgt. Hamilton, could bump down to corporal positions (in which case they would no longer be members of the PCU but would be represented by the separate police officer’s association). On April 19, the City gave the affected employees written notification of the changes to their employment status.

The Current Action; Motion for Injunction

On May 18, 2012, the PCU and individuals Lts. Romero and Han, and Sgt. Hamilton (hereafter referred to collectively and in the singular as the PCU,

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unless the context indicates otherwise) filed the instant action, a petition for writ of mandate against the City and Chief Twiss (hereafter referred to collectively and in the singular as the City, unless the context indicates otherwise).[2] Lt. Han was subsequently dismissed from the action. A preliminary injunction was granted. The PCU subsequently filed a motion for issuance of a peremptory writ of mandate and a permanent injunction enjoining the City from implementing the reorganization plan until it complied with the MMBA’s good faith meet and confer requirements. The gist of its argument was the reorganization plan was not motivated by the City’s dire financial straits but was largely concocted as a means to eviscerate the separate bargaining unit for supervisory command staff—all three elected officers of the PCU would be adversely affected and the total remaining command staff eligible for membership in the PCU would be reduced to nine. The PCU asserted the City failed to comply with its good faith meet and confer obligations.

The PCU’s motion was supported by declarations and a “compendium of exhibits” including various documents described above, responses to interrogatories, and deposition transcripts.[3]

In the PCU’s responses to the City’s interrogatories, it detailed strain between the PCU and certain city council members who the PCU had

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opposed in the 2010 election. Certain council members began publicly accusing the PCU of failing to negotiate in good faith on labor concessions, and then began expressing desires to reduce the Department’s command staff positions. In September 2011, the City fired the police chief and appointed an interim chief; animosity between command staff and the interim chief increased. Chief Twiss’s appointment was not supported by the PCU. At a planned labor concession meeting in early March 2012, the City’s human resources manager told Lt. Romero (the PCU president), the City wanted to meet with the PCU immediately after that meeting about plans to reorganize the Department. He declined to meet until the PCU’s legal counsel could be contacted. Chief Twiss’s letter advising the PCU’s legal counsel of the reorganization plan was sent March 13. After another labor concession meeting on March 27, with the city manager, finance manager, and human resources manager, the PCU leaders indicated the PCU was willing to make concessions but wanted to know what was going on with the reorganization plan. The city manager said they were completely different issues. At a meeting on April 3, the city manager told the PCU leadership the reorganization plan would take place no matter what and the PCU had no right to offer a “response” to the plan. “No alternatives to layoffs were discussed.” At a meeting of all Department employees on April 17, Chief Twiss told employees the reorganization plan would save the City $524, 000; four regular officers would be laid off, and the remaining commander position would be open to outside applicants (i.e., they would not simply allow an existing lieutenant to bump into that position) because Chief Twiss “want[ed] to get the best person for the job.”

The PCU’s interrogatory responses stated the reorganization would impact most PCU members through demotion or loss of seniority. For several months before the reorganization plan was announced, the PCU had been having concession talks with the City, but the reorganization plan was never mentioned. During that same time, the City was also having concession talks with the rank and file officer’s bargaining unit, the Police Officer’s Association (the POA), and during those talks the POA board was told if it agreed to concessions, “all of the cuts would come from the PCU.” The PCU stated the reorganization would harm public safety because two sworn managers were not adequate for supervising the Department, remaining sergeants and corporals would have more supervisory duties and less time in the field, and there would be a loss of experienced supervision. In his separate interrogatory responses, Lt. Romero stated the reorganization plan would result in the loss of five PCU members, including two of its elected officers, diminishing its power to effectively negotiate through numbers of members and membership dues revenues.

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The PCU’s motion was also supported by declarations from two retired PCU members. Richard Bitoni was police captain until he retired in September 2011, and had served as elected president of the PCU. Prior to his retirement there were never discussions about the command staff being “top-heavy” or needing to be reorganized. Lieutenants and sergeants were supervisors but also provided uniformed law enforcement services, backing up patrol officers and working off-duty at community events. The reorganization plan, which would reduce command staff from five sworn officers to two sworn officers and one unsworn supervisor would negatively impact the number of police officers on the streets, impacting public safety. In Bitoni’s experience, it was preferable to have supervisory command staff in a separate bargaining unit from rank and file officers because of conflicts that would arise in disciplinary proceedings. The proposed reorganization would result in only nine sergeants remaining eligible for membership in the PCU, which was too few members to maintain a viable employee association. The remaining sergeants would either have to merge into the rank and file officer’s bargaining unit, or become unrepresented.

Richard Banasak was the police captain until he retired in June 2012. He declared there were no prior discussions with him concerning the proposed reorganization, and was told that because he was part of the PCU’s ...


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