Opinion
Rehearing Denied June 19, 1974.
Opinion on pages 303-314 omitted.
HEARING GRANTED
For Opinion on Hearing see, 124 Cal. Rptr. 513, 540 P.2d 609.
Mohi, Morales, Dumas & Glasman and Frank C. Morales, Los Angeles, for plaintiffs and appellants.
Joseph Rainville, City Atty., City of Glendale, Robert L. Smith, Asst. City Atty., and Burke, Williams & Sorensen, George W. Wakefield, Richard R. Terzian, and George W. Wakefield, Los Angeles, for defendants and appellants.
ASHBY, Associate Justice.
This is an appeal by the City of Glendale (City) from a judgment granting a writ of mandate to compel the city council to provide salary and wage increases to 132 classes of Glendale municipal employees according to the trial court's interpretation of a memorandum of understanding signed by the assistant city manager representing the City and the president of the Glendale City Employees' Association, Inc. (Association). The Association is the recognized representative of Glendale city employees for purposes of salary matters, except as to uniformed employees (police and fire) and certain management and confidential employees. The writ was sought by the Association, its president, and certain named members on behalf of the employees. The Association also appeals, however, contending that in one aspect the judgment fails to grant sufficient relief.
We have concluded that the trial court erred in issuing the mandate and that the judgment for the Association must be reversed.
FACTS
Pursuant to the Meyers-Milias-Brown Act (Gov.Code, § 3500 et seq.), the City of Glendale has enacted ordinances governing employer-employee relations. As the designated representative of the city employees, the Association, represented by its president, David North, and a negotiator from the California League of City Employees' Associations, Phillip Bowers, met and conferred with Charles Briley, the assistant city manager, with regard to salaries to be paid the city employees for the fiscal year 1970-1971. These parties negotiated [114 Cal.Rptr. 155] a memorandum of understanding concerning salaries and other matters. Section 11(b) of the Glendale City Employee Relations ordinance provides: 'If agreement is reached by the City Manager and the recognized employee representative, they shall jointly prepare a written memorandum of such understanding, which shall not be binding, and present it to The Council by May 1 of each year.' The memorandum of understanding was presented to the city council, and on June 9, 1970, the council passed a motion that the memorandum of understanding 'be and the same is hereby approved.'
Government Code section 3505 provides as follows:
Government Code section 3505.1 provides:
The memorandum of understanding contained four provisions, relating to a cost of living increase in salary and wages, a salary survey, sick leave utilization, and incentive pay. The provision in dispute here is one for a salary survey. It states as follows:
'The parties hereto will conduct a joint salary survey and using as guide lines data secured from the following jurisdictions, Burbank, Pasadena, Santa Monica, Long Beach, Anaheim, Santa Ana, Los Angeles City and Los Angeles County. The intent of the survey will be to place Glendale salaries in an above average position with reference to the jurisdictions compared with proper consideration given to internal alignments and traditional relationships. The data used will be that data available to us and intended for use in fiscal year 1970-71. Adjustments which it is agreed shall be made will have an effective date of October 1, 1970. It is intended that comparisons will be made on a classification basis and not title only, and that the classifications shall be determined by professional judgment of the highest qualified personnel people with whom we would confer in the jurisdictions with which we will compare.'
Pursuant to this agreement a salary survey was conducted. Consistent with its practices since 1953 the City utilized the data by preparing 'bar charts.' These charts are long strips of graph paper showing the job classification on the left side and the salary range for that classification as represented by a colored line on the chart. Each jurisdiction surveyed was represented by a different colored line. By comparing the lineup of the different colored lines it was possible easily to visualize the relationship of Glendale salaries to the other jurisdictions surveyed. It was agreed that in making these comparisons the City would be particularly concerned with the top step (fifth or E step) of the salary ranges since the majority of the Glendale employees were at the top step of their salary ranges.
Some job classifications had no comparable position in other jurisdictions and no comparison was possible. In other cases comparable positions were found in only one or a few of the jurisdictions. Data intended for use in 1970-71 in Santa Monica and Anaheim were not available at all.
The charts were completed in mid-September of 1970 so that the City representatives could make recommendations for salary adjustments in time for them to be effective as of October 1. The proposed Glendale salaries were indicated by a brown line on the bar charts and were discussed [114 Cal.Rptr. 156] by representatives of both parties. The Association then obtained a computer analysis of the arithmetical averages of the salaries surveyed, and took the position that the City had not complied with the memorandum of understanding. A salary ordinance embodying the recommendations of the city manager's office was enacted over objections from the Association. (Ordinance No. 3936, amending Ordinance No. 3921.)
The Association then sought a writ of mandate from the trial court, contending that the action of the city council in approving the memorandum of understanding on June 9, 1970, bound the City to pay each class of employees a salary at least in a salary range above the average of the surveyed jurisdictions for the comparable class of position.
TRIAL COURT ACTION
The City defended the action on numerous grounds, among them that the memorandum of understanding was not binding upon the city council and that mandate was inappropriate to compel action by the city council, but also on the merits that, properly interpreted, the memorandum of understanding was fully complied with. The trial court received testimony concerning certain negotiations leading up to the memorandum of understanding and as to the meaning of the phrases 'above-average position' and 'with proper consideration given to internal alignments and traditional relationships,' in the memorandum. We summarize this testimony here.
There was some dispute concerning the intended role of Los Angeles City and Los Angeles County in the salary survey. Los Angeles salaries were apparently considerably higher than Glendale's. The City's position was that Los Angeles City and Los Angeles County should be 'reference points.' The Association's position was that these jurisdictions should be fully considered as two of the various jurisdictions used for comparison. The memorandum, as quoted, simply lists Los Angeles City and Los Angeles County as two of the 'following jurisdictions' to be used as a source of guideline data.
There appeared to be no disagreement over the meaning of the term 'internal alignment.' It refers to the relationship between certain classes of positions within the City of Glendale. For instance, there will ordinarily be a certain span between, say, a Clerk Typist I and a Clerk Typist II, or between certain classes of employees and the supervisor of those classes. There might also be internal alignments between different classifications, for instance, that an Equipment Mechanic I be equal to an Automotive Body Repairman I.
The term 'traditional relationships' refers to salary and wage relationships between classes of positions in the City of Glendale compared to salaries of those classes in other jurisdictions with whom the City of Glendale traditionally has made comparisons.
While the parties and the trial court were essentially agreed upon the definition of internal alignments and traditional relationships, they did not agree on what constituted 'proper consideration' of internal alignments and traditional relationships. The employees contended that these factors could not be used to deny any classification of employee a salary above the survey average, while the City contended that they were proper factors to consider in paying below the average. The City's negotiator and the Association's negotiator testified at length concerning these issues, and disagreed about the importance to be given higher paying Los Angeles City and County.
The trial court also took testimony on the meaning of the word 'average.' The City's testimony was to the effect that 'average' is a loosely used term and that many cities achieve it by 'eyeballing.' The Association's testimony was that 'average' meant arithmetical average. The evidence was uncontradicted that the City had never before used an arithmetical average.
[114 Cal.Rptr. 157]The City's witness testified that if the averages proposed by the Association were paid to each classification it would 'raise chaos in the salary structure. . . . Our internal alignment would be devastated if we did this because we would have people, subordinates, making more than their superiors.'
The trial court ruled that the memorandum of understanding meant that an arithmetic mean of the salaries of the eight jurisdictions including Los Angeles City and Los Angeles County must be computed, and that even if the data were available only from one jurisdiction, that would be considered the average. It then ruled that the City would be required to pay each classification at least one cent above the average so obtained.
This ruling is the subject of the appeal by the Association, which contends the salary should be raised to the next higher salary range, not just to one cent over the average. Our disposition of the City's appeal renders this contention moot.
At the court's request the City submitted a detailed explanation of the manner in which it had applied considerations of internal alignments and traditional relationships to arrive at the salaries and wages of some 143 classifications which were paid below the survey average. The court ruled that in no event could the need to maintain internal alignments be used as a justification to keep any class of employee below the survey average. It held that if the City wished to maintain internal alignments it could readjust salaries upward after each class was paid at least the average. The court also rejected the City's justifications based on traditional relationships, holding that the fact that a Glendale salary was within the average excluding Los Angeles or any other jurisdiction was no ground for paying less than the entire survey average.
In a very few cases the court accepted justifications based on differences in comparability, for instance, that Los Angeles requires a college degree for a certain position and Glendale does not.
The judgment lists those classifications of employees which are entitled to a salary increase and sets forth a formula for determining the amount of the increase. In the case of employees on the E salary step, the amount due is the amount required to bring their salary up to the average of the jurisdictions surveyed, plus one cent. A formula suggested by the City was also included in the judgment for calculating the amounts due to employees on the D, C, B, and A steps.
The judgment orders the city council 'to proceed at once to provide salary and wage increases to petitioners occupying classes of positions which shall hereinafter be set forth in accordance with' the standard and formula set out in the judgment.
The court found that the failure of the City to fix the salaries and wages of petitioners in the manner contained in the memorandum of understanding as interpreted by the trial court was a breach of duties imposed by statute and ordinances, and was an abuse of discretion. It further found that the petitioners had no adequate or speedy remedy at law and that mandate was proper.
DISCUSSION
We find that the enactment of Ordinance 3936, amending Ordinance 3921, was a valid exercise of legislative discretion by the city council consistent with its resolution of June 9, 1970, approving the memorandum of understanding, and that the trial court erred in issuing the mandate compelling the city council to appropriate salaries in accordance with the court's interpretation of the memorandum of understanding.
The issue properly before the trial court was whether the City's enactment of the salary ordinance was so fraudulent or palpably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law. In the absence of such fraudulent or arbitrary action, the trial court was without jurisdiction to compel by mandate the exercise of the city council's legislative [114 Cal.Rptr. 158] discretion to determine employee salaries. (Sanders v. City of Los Angeles, 3 Cal.3d 252, 261, 90 Cal.Rptr. 169, 475 P.2d 201; City and County of S.F. v. Boyd, 22 Cal.2d 685, 690, 140 P.2d 666; Alameda County Employees' Assn. v. County of Alameda, 30 Cal.App.3d 518, 532, 106 Cal.Rptr. 441; Anderson v. Board of Supervisors, 229 Cal.App.2d 796, 798, 40 Cal.Rptr. 41; San Bernardino Fire & Police Protective League v. City of San Bernardino, 199 Cal.App.2d 401, 411, 18 Cal.Rptr. 757.)
Nevertheless, the proceedings below were conducted as if the City's enactment of the salary ordinance constituted a breach of contract based on the memorandum of understanding. Thus, considerable evidence was taken concerning what the parties intended the memorandum to mean. Although the intentions of the parties' negotiators in drafting the memorandum may not have been entirely irrelevant, the real issue was not the parties' intentions or expectations in drafting the memorandum, but whether the salary ordinance was enacted in a fraudulent or arbitrary manner. Indeed, the very fact that considerable parol evidence was needed to interpret the memorandum, and that this evidence was conflicting, indicates that the City cannot be said to have abused its discretion in enacting the salary ordinance. (See People v. Munoz, 31 Cal.App.3d 87, 96, 107 Cal.Rptr. 451.) The city council had broad discretion in interpreting the memorandum, and in the absence of a palpable abuse of discretion, it was not the function of the trial court to determine a single definite meaning of the memorandum's terms, based on conflicting evidence. (Alameda County Employees' Assn. v. County of Alameda, supra, 30 Cal.App.3d 518, 530, 106 Cal.Rptr. 441; Anderson v. Board of Supervisors, supra, 229 Cal.App.2d 796, 799-800, 40 Cal.Rptr. 41.)
Moreover, it is questionable whether the resolution of June 9 approving the memorandum constituted anything more than an authorization to proceed with taking the salary survey. At most it constituted a declaration of the policy the council intended the city manager to follow. (See e. g., San Luis Obispo County Employees' Assn. v. Freeman, 30 Cal.App.3d 511, 513-514, 516-517, 106 Cal.Rptr. 357.) The memorandum states: 'The items in this agreement are subject to the approval of the City Manager and the City Council of the City of Glendale, and will be placed into effect upon the taking of administrative action by the city manager's office and the adoption of the necessary ordinances and resolutions by the City Council if acceptable to them, in accordance with the terms and conditions hereinafter set forth.' (emphasis added.)
The salary survey provision states in part: 'The intent of the survey will be to place Glendale salaries in an above average position with reference to the jurisdictions compared with proper consideration given to internal alignments and traditional relationships. . . . Adjustments which it is agreed shall be made will have an effective date of October 1, 1970. . . .' (Emphasis added.)
We think this language makes clear that agreement on the adjustments to be made in salaries was necessarily postponed until the results of the salary survey could be analyzed and the city council enacted the necessary salary ordinances 'if acceptable to them.' Although an 'intent' was declared to place Glendale salaries in an above average position with proper consideration given to internal alignments and traditional relationships, there is no express promise to be bound by the statistical averages obtained in the survey. A declaration of present intention is not necessarily the same as a binding promise, and the language 'adjustments which it is agreed shall be made' indicates simply an agreement to agree.
The memorandum should be viewed in this light when we examine the city council's action of June 9, 1970, in passing a motion that the memorandum of understanding 'is approved.' We do not believe that this motion can reasonably be construed [114 Cal.Rptr. 159] as a binding commitment on the part of the city council to match the average salary in each classification of a salary survey yet to be taken, the results of which were not yet known. While the motion approving the memorandum no doubt indicated city council approval of the principle of taking a salary survey, nothing in it indicates an intent upon the part of the city council to abandon its responsibility to evaluate the results of the survey and to make such adjustments in salaries as the council, in the exercise of its legislative discretion, deemed appropriate.
The evidence is uncontradicted, as noted, that the City of Glendale had never before used an arithmetical average in evaluating its survey data and had never before given equal weight to data from Los Angeles City and County, which had traditionally paid higher than Glendale and similarly sized cities. Of course, nothing prevents the City of Glendale from changing its policy. However, it is unreasonable to conclude that the city council intended such a drastic change in policy by merely passing a resolution approving the vague language of the memorandum of understanding. The memorandum does not expressly provide that an arithmetical average will be used or how it would be calculated. It does not expressly commit the City to meeting that average in each and every classification. It provides that proper consideration will be given to internal alignments and traditional relationships, and does not expressly resolve the conflict occurring when the consideration of internal alignments and traditional relationships would dictate a salary below the survey average. We think the trial court went too far in attempting to fill these gaps by extrinsic evidence, as if the council motion of June 9, 1970, was intended to make the memorandum of understanding a binding contract.
To uphold the trial court's judgment would be to rule that merely by passing a motion approving the vague language of the memorandum of understanding, the city council actually was saying: 'We hereby commit the city to pay each and every classification of Glendale employees a salary above the arithmetical average of a survey of salaries paid comparable classifications of employees in Burbank, Pasadena, Santa Monica, Long Beach, Anaheim, Santa Ana, Los Angeles City and Los Angeles County. If data is available from only one jurisdiction, that will be considered the average we are committed to meet, even if it be a jurisdiction with which we have never before attempted to be competitive. Although the memorandum states that proper consideration will be given to internal alignments, in no event will any classification of employee be paid below the average in order to maintain internal alignments. By 'proper consideration given to internal alignments' we mean only that, once each and every classification of employee is above the average, we may exercise our discretion to raise others even further, in order to maintain internal alignments. We hereby commit the City to this result, even though the salary survey has not yet been taken and we do not know how much money any particular classification will be entitled to or how much this approach will cost the taxpayers of Glendale. This commitment is over and above the 5.5 percent cost of living increase for all classifications which is to be enacted effective July 1, 1970. This commitment represents a change in our previous practice which was to attempt to arrive at just and equitable salaries using bar charts rather than arithmetical averages to compare Glendale salaries to those in Burbank, Pasadena, Santa Monica, Anaheim, Santa Ana, and Long Beach, and without attempting to establish parity with the City or County of Los Angeles.' Clearly the June 9 motion did not have this meaning.
It is unreasonable to read such a result into the city council's motion of June 9, 1970. Under the Glendale City Charter the compensation of City employees is to be set by ordinance. (Glendale City Charter, art. 4, § 3, stats.1957, res. ch. 177, p. 4553; see Los Angeles Fire & Police Protective League v. City of Los Angeles, 23 Cal.App.3d 67, 77, 99 Cal.Rptr. 908.) The city council did not by its June 9 motion abandon its power to review the survey results and to determine Glendale salaries by ordinance at a later time according to the exercise of its discretion. (See also Gov.Code, § 3505.1; Johanson v. City Council, 222 Cal.App.2d 68, 71-72, 34 Cal.Rptr. 798.)
[114 Cal.Rptr. 160]Moreover, even if it were assumed that in its June 9, 1970, motion approving the memorandum of understanding, the city council intended to adopt for the City a policy of matching the arithmetical average of the surveyed jurisdictions, 'with proper consideration given to internal alignments and traditional relationships,' the question would be whether the City's manner of giving consideration to internal alignments and traditional relationships in the instant case constituted an abuse of discretion.
Here the City presented the trial court with a detailed justification of its application of considerations of internal alignments and traditional relationships to the various classes of employees which were below the survey average. We cannot agree with the trial court that the City's method of giving consideration to traditional relationships and internal alignments was so fraudulent or arbitrary as to be an abuse of discretion as a matter of law.
CONCLUSION
We conclude that the trial court erred in issuing a writ of mandate compelling the city council to enact wage and salary increases in accordance with the formula contained in the judgment. The city council's action on June 9, 1970, approving the vague memorandum of understanding did not bind the City to grant the wage and salary increases in accordance with the trial court's interpretation. The evidence does not show that the enactment of Ordinance No. 3936 on September 29, 1970, amending Ordinance No. 3921, was so fraudulent or arbitrary as to amount to an abuse of discretion as a matter of law. The petition for writ of mandate should have been denied.
For the reasons stated, the judgment is reversed. Each party to pay its own costs.
KAUS, P. J., and STEPHENS, J., concur.
Hearing granted; BURKE, J., did not participate.
'The governing body of a public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body, shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations, as defined in subdivision (b) of Section 3501, and shall consider fully such presentations as are made by the employee organizations on behalf of its members prior to arriving at a determination of policy or course of action. . . . '
'If agreement is reached by the representatives of the public agency and a recognized employee organization or recognized employee organizations, they shall jointly prepare a written memorandum of such understanding, which shall not be binding, and present it to the governing body or its statutory representative for determination.'