Opinion
A129039
11-01-2011
OFFICERS FOR JUSTICE et al., Plaintiffs and Appellants, v. CIVIL SERVICE COMMISSION OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City and County of San Francisco Super. Ct. No. CPF-09-059716)
Officers for Justice Police Officers Association and 17 individual police officers (collectively OFJ) filed a petition for writ of mandate under Code of Civil Procedure section 1085. The petition challenged a decision of the Civil Service Commission of the City and County of San Francisco (the Commission) permitting certain police officers with the rank of Q-50 Sergeant (also Sergeant) to perform investigative work that had routinely and historically been performed by officers with the rank of Q-35 Assistant Inspector or 0380 Inspector (also Assistant Inspector or Inspector, respectively). The Commission refused OFJ's request to order removal of the Sergeants from their assignments and the appointment of new Assistant Inspectors to fill the resulting vacancies. It instead ordered DHR to amend the Sergeant classification to specifically reflect that the duties of those sergeants included investigative matters, and a new hybrid examination to fill future vacancies.
The respondents in OFJ's action were the Commission, the Chief of the San Francisco Police Department (SFPD), the Director of the San Francisco Department of Human Resources (DHR), and the City and County of San Francisco. For the sake of brevity, we will refer to respondents collectively as "the City" save when context requires that they be identified individually.
The superior court denied the petition, finding certain of OFJ's claims moot. It denied the remainder on the merits, finding both that the Commission had not failed to perform any ministerial duty and that OFJ had not demonstrated a clear, present and beneficial right to performance of such duty. OFJ appeals.
The City asserts that the matter before us no longer presents an existing controversy and is therefore moot. We agree with the City that this case no longer presents a justiciable controversy. Accordingly, we will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The origins of the case before us can be traced back almost forty years, to the 1970s. We recount some of the early history to place the current phase in context.
The OFJ Consent Decree and the Q-35 Order
In 1973, OFJ and other advocacy groups filed a class action against the Commission and other City officials in federal district court. OFJ alleged that the SFPD engaged in hiring and promotion practices that discriminated against women and people of color. The class action was settled by consent decree in 1979.
In October 1998, the parties stipulated to termination of the consent decree, and the district court issued an order finding the City had substantially complied with the terms and obligations of the decree, although it had not fully met the decree's hiring goal. At the same time, the district court entered a separate order establishing a procedure for appointment of eligible candidates to the rank of Q-35 Assistant Inspector (the Q-35 Order). Appointments made pursuant to the Q-35 Order were based upon a 1998 promotional examination for the Q-35 rank. The Q-35 Order required the City to make a minimum of 175 Assistant Inspector appointments from the eligible list resulting from that examination. One hundred thirty-five appointments were to be made on "day one," and the remaining appointments were to be made according to the procedure specified in the order. The Q-35 Order provided that "[a]ll Assistant Inspector appointments will be made in the above manner from the eligible list for a period of four years or until a new eligible list is adopted for that rank." In accordance with these terms, the City has appointed a total of 229 Assistant Inspectors from the 1998 Q-35 list. The City last appointed 18 Assistant Inspectors from this list in February 2006, but it has made no additional appointments to the rank of Assistant Inspector since that time.
Reassignment of Sergeants to the Investigations Bureau
In 2005, DHR and SFPD announced a plan to assign personnel from the rank of Q-50 Sergeant to the SFPD's Investigations Bureau. As part of the plan, no further appointments would be made to the rank of Assistant Inspector, and the two defined inspector's ranks (Q-35 Assistant Inspector and 0380 Inspector) would "become extinct" when the last of the incumbents retired or otherwise left employment. Instead, the plan provided for conducting a new examination for a Q-50 Sergeant position that would incorporate investigative duties.
Officers appointed as Q-35 Assistant Inspectors are automatically reclassified as 0380 Inspectors after two years of satisfactory service.
The City posted an announcement for the Q-50 Sergeant examination in July 2006. Following the examination, the City adopted an eligible list for that rank in February 2007. (San Francisco Civil Service Commission Rules (SF CSC Rules), rule 202.19 [defining "Eligible List"].) In August 2007, then Chief of Police Heather Fong appointed 51 new sergeants from that list and assigned approximately 33 of them to the Investigations Bureau.
The Appeal to the Commission
In August 2007, after the assignment of Q-50 Sergeants to the Investigations Bureau, more than 50 officers on the 1998 Q-35 list appealed to the Commission. On June 16, 2008, the Commission determined a classification action had occurred and found the appeals against that action timely. On behalf of some of the appealing officers, OFJ asked the Commission to: (1) find that the SFPD had either improperly consolidated the Q-35 and Q-50 ranks or had improperly abolished the Q-35 rank; (2) invalidate all prior Q-50 "appointments" to what had previously been Q-35 positions because of the allegedly improper consolidation or abolishment and because the Q-50 Sergeants had been "improperly appointed out of class"; (3) order that the vacancies resulting from the invalidation of the Q-50 appointments be filled with eligibles from the 1998 Q-35 list; and (4) order that all future appointments of Q-35 Assistant Inspectors be made from the 1998 Q-35 list until a new Q-35 exam was administered.
The Commission conducted seven hearings on the appeals between July 2007 and September 2008. In the course of these proceedings, the Commission heard testimony from the appealing officers, members of SFPD command, DHR representatives, and Commission staff. It also considered the written submissions of counsel for OFJ and the City, questioned counsel at the hearings, and heard extensive argument.
The Commission's Decision
On January 16, 2009, the Commission issued its order in the Q-35 appeals. It later adopted a "Q-35/Q-50 Statement of Decision" incorporating and explaining that order. We discuss the relevant Commission findings in some detail.
The Commission first found that under its rules, all appointments made to the Q-50 Sergeant rank from the list resulting from the 2006 Q-50 examination "were and remain valid appointments." It noted that the Sergeants in question had qualified for the Q-50 examination, had taken and passed it, and had been placed on an eligible list. The Commission further explained that the Sergeants had been selected from that list in conformity with the list's certification rule. It observed that "the questions that have arisen in these appeals concerning the assignments of these Sergeants does not affect the validity of their appointments. Under our Rules, a question about an employee's out-of-class assignment does not render the employee's appointment in the proper fashion to the proper class invalid." (Italics added.)
Second, while the Commission acknowledged some overlap between the Q-50 and Q-35 class specifications, it found the specifications distinct. It therefore ordered DHR to amend the class specification for Q-50 Sergeant to clarify that the duties of Q-50 Sergeants extend to full investigative matters. The amendment would then be subject to appeal pursuant to the Commission's rules.
Pending amendment of the class specification, the Commission permitted the existing assignments of Q-50 Sergeants to the Investigations Bureau to remain in place, but it ordered that there be no increase in the number of such assignments until the class specification was amended. The Commission reached this decision because it found that the assignments "were made neither in conscious violation of civil service rules nor with an intent to manipulate or circumvent the merit system." In addition, the Commission concluded it would be disruptive to ongoing criminal investigations if the Q-50 Sergeants were transferred out of the Investigations Bureau, and public safety would be jeopardized.
The Commission held, however, that assignment of Q-50 Sergeants to work historically and routinely performed by Q-35 Assistant Inspectors and 0380 Inspectors facially violated the Commission's rules. It found that in making those assignments, the Chief had exceeded her "broad discretion in assigning or detailing personnel" because the two class specifications were distinct. The Commission found the Chief's actions violated the Commission's rules restricting her power to make out-of-class assignments.
The Commission's rules define a temporary out-of-class assignment as "the assignment of an employee without change in class to perform the normal day-to-day duties of another classification." (See SF CSC Rules, rule 209.16.2.) The rules provide that "[t]emporary out-of-class assignments shall not be made when an appointment based on the regularly established Rules and procedures of the Civil Service Commission may be made." (SF CSC Rules, rule 209.16.2, para. 4.) The Commission acknowledged that Rule 209.16.2 does not expressly prohibit the type of permanent out-of-class assignments at issue in this case. It concluded, however, that such a prohibition was "a reasonable and even necessary inference" from Rule 209.16.2. No party has challenged the Commission's interpretation of this rule.
The Commission ordered DHR to hold a hybrid examination for the Q-35 and Q-50 ranks "as soon as may be practicably done." It explained that the 1998 Q-35 list was "exceedingly stale from a civil service standpoint," and that there should have been a new examination for the Q-35 Assistant Inspector rank in November 2002, the fourth anniversary of that list. The Commission ruled that until the adoption of an eligible list resulting from the hybrid examination, the Chief could make additional appointments from the 1998 Q-35 list, but she was not required to do so. Finally, it noted that nothing in its order should be interpreted to create a right on the part of eligibles remaining on the 1998 Q-35 list to appointments as Assistant Inspectors.
The Commission observed that the 1998 Q-35 eligible list remained active under the terms of the Q-35 Order, despite the requirement of section 211.2 of the Commission's Rules that examinations be conducted at least once every four years, and that ordering the hybrid Q-35/Q-50 examination put the Q-35 examination process "back on track."
Amendment of the Q-50 Class Specification
In response to the Commission's order, DHR amended the Q-50 class specification so that it would accurately reflect the duties performed by Q-50 Sergeants. DHR posted the amended specification on March 31, 2009. Various individuals and OFJ protested the amended specification, and DHR officials met with OFJ representatives to discuss the protest. On April 27, 2009, DHR's director notified OFJ of her decision to adopt the amended specification and informed OFJ that it could appeal her decision to the Commission. No one appealed the decision adopting the amended specification to the Commission, and it therefore became final on May 27, 2009. (SF CSC Rules, rule 209.1.7 ["decision of the Human Resources Director regarding classification matters . . . shall be final unless appealed to the Civil Service Commission"].)
In June 2009, DHR announced a hybrid Q-50 Sergeant/Q-35 Assistant Inspector examination based on the amended specification. DHR administered the examination in October of that year, and more than 500 officers took it.
OFJ's Petition for Writ of Mandate
In August 2009, OFJ filed a petition for writ of mandate in San Francisco Superior Court. It filed an amended petition on November 12, 2009, which is the operative pleading in this case. The petition alleged two causes of action; the first sought review of the Commission's decision, and the second challenged the actions of the Chief, the Human Resources Director, and the City. Both causes of action alleged that the respondents had failed to perform their ministerial duties under the Commission's rules, the San Francisco City Charter (Charter), and the San Francisco Administrative Code. The petition asked the court to issue a writ of mandate directing the Commission to set aside its decision to allow Q-50 Sergeants to continue to work in "traditionally and historically Q-35 Assistant Inspector/0380 Inspector positions." OFJ also asked the court to direct respondents to remove Q-50 Sergeants who had not taken the Q-35 promotional exam from those positions and to fill the resulting vacancies with eligibles from the 1998 Q-35 list. It further requested that the court direct respondents to fill all future vacancies in Q-35/0380 positions from the 1998 Q-35 list until a new examination could be administered or until the rank of Assistant Inspector/Inspector was duly abolished.
Prior to filing the action below, OFJ filed a motion to enforce the consent decree in federal court. It asked the district court to set aside the Commission's decision allowing Q-50 Sergeants to continue to work in Q-35 Assistant Inspector positions, and it sought an order directing removal of the Sergeants from those positions, the appointment of Q-35 eligibles to fill the resulting vacancies, and the voiding of certain appointments to the Q-50 rank. In June 2009, the district court denied the motion, and the U.S. Court of Appeals for the Ninth Circuit affirmed that decision in November 2010. We take judicial notice of the Ninth Circuit's decision affirming the district court (People v. Johnson (2006) 38 Cal.4th 1096, 1103), and to that extent we grant respondents' February 9, 2011 request for judicial notice.
Together with its amended petition, OFJ filed an application for a temporary restraining order to prevent the SFPD from placing Sergeants in assignments where their duties would primarily involve investigative functions. The court denied the application for a temporary restraining order and issued an order to show cause why a preliminary injunction should not issue. On December 11, 2009, the court denied the request for a preliminary injunction. The court refused to enjoin the creation of a new Q-35 eligible list based upon the hybrid Q-35/Q-50 examination held in October 2009 and reserved ruling on that issue. With regard to the assignments resulting from the reorganization plan, the court held OFJ had failed to exhaust its administrative remedies, because it had not first asked the Commission to review that action.
In October 2009, then Chief of Police George Gascon had announced a reorganization of the SFPD's operations. One feature of the reorganization plan was a decentralization of the SFPD's investigative resources and functions from centrally located investigative units to district stations. The decentralization of investigative functions would involve the redeployment of most of the approximately 30 Q-50 Sergeants then assigned to the Investigations Bureau and the assignment to district stations of many of the Sergeants appointed from the 2007 Q-50 Sergeant's list.
Denial of OFJ's Petition for Writ of Mandate
On January 29, 2010, the trial court heard argument on OFJ's petition. It denied the writ in an order dated February 22, 2010, and issued an amended order on March 25, 2010. Applying the standard of review applicable to traditional mandamus under Code of Civil Procedure section 1085, the trial court held OFJ had not satisfied the prerequisites for issuance of a writ. With regard to the Commission, the court found OFJ had failed to (1) identify a clear, present and ministerial duty which the Commission failed to perform, and (2) demonstrate that petitioners had a clear, present and beneficial right to performance of that duty. The trial court concluded the Commission was not merely performing a ministerial duty in resolving the Q-35 appeals. Instead, its decision "exhibit[ed] a conscious weighing of the competing factors and conflicting evidence." The trial court ruled that in its response to the challenged assignment of Q-50 Sergeants to work historically and routinely performed by Q-35 Assistant Inspectors and 0380 Inspectors, the Commission's decision was not " 'arbitrary, capricious, or entirely lacking in evidentiary support, or contrary to established public policy, unlawful, [or] procedurally unfair,' " nor had the Commission abused its discretion or failed to follow required procedure.
The trial court also concluded that amendment of the class specification for Q-50 Sergeant had rendered moot OFJ's claim that it was unlawful for the Commission to allow the Q-50 Sergeants to function out of class. It found that once the class specification was amended, the Q-50 Sergeants were no longer working out of class. It therefore determined that portion of OFJ's claim no longer presented an existing controversy.
Following denial of the petition for writ of mandate, the City moved for judgment on the pleadings. On May 7, 2010, the trial court granted the motion. It entered judgment shortly thereafter, and OFJ filed this appeal.
II. DISCUSSION
OFJ raises a number of challenges to the trial court's order denying its petition for writ of mandate. Before reaching these contentions, however, we first confront a threshold issue. The City contends this case is entirely moot. Because mootness renders a case nonjusticiable, and California courts will decide only justiciable controversies, we must first decide whether the matter before us presents an existing controversy appropriate for judicial resolution. (See Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573-1574 (Wilson & Wilson).)
The City argues the controversy in this case concerned the out-of-class assignment of Q-50 Sergeants. It maintains that amendment of the Q-50 class specification rendered OFJ's petition moot. According to the City, when DHR amended that class specification in compliance with the Commission's order, the controversy "evaporated," because the Sergeants assigned to the Investigations Bureau were no longer working out-of-class. If the amended specification cured the violation of the civil service rules, then the City argues OFJ is entitled to no relief.
OFJ disagrees. It asserts that the out-of-class assignments were void ab initio and therefore cannot be cured by subsequent amendment of the class specification. OFJ argues that the only individuals who can lawfully function in what it calls "investigative sergeant" positions are those "who have demonstrated the relevant 'merit and fitness' via an appropriate test for appointment and assignment to permanent investigative positions." It also contends that even if the injunctive relief it seeks is no longer available, its claims for monetary damages survive. A. Nomenclature
Before addressing the parties' contentions regarding mootness, we note that their differing views arise in part from a disagreement over nomenclature. OFJ contends the assignments of Q-50 Sergeants to what it calls "investigative positions" were void because the Charter mandates that "appointment and assignment to permanent investigative positions" can only be demonstrated by taking and passing the appropriate test. The City responds by pointing out that OFJ's argument rests on a failure to distinguish between "appointments" and "assignments." The City notes that the Charter requires only that "appointments," not "assignments," be based on merit and fitness. (See Charter § 10.102.) OFJ contends that an "appointment" does not stand apart from assignment to a vacant "position," and it characterizes the City's effort to distinguish "appointments" from "assignments" as a distinction without a difference.
To the extent OFJ argues that the difference between appointments and assignments is purely semantic and without legal significance, we must emphatically disagree. "In considering civil service . . . personnel matters is it essential that civil service nomenclature be used correctly. [¶] . . . As used in the laws and rules governing the civil service, the terms 'position,' 'class,' 'appointment,' . . . etc., are words of art . . . ." (Geftakys v. State Personnel Bd. (1982) 138 Cal.App.3d 844, 857.) Thus, scrupulous adherence to the terminology of the Charter and the Commission's rules is essential to a proper understanding of the issues. Using that terminology, we summarize the facts and law relevant to the question of mootness.
In the SFPD, a "position" is defined as the "duties and responsibilities assigned by an appointing officer to be performed by an employee," and "[a] group of positions having common functions and levels of responsibility requiring related knowledge, abilities, and skills" constitute a "class." (SF CSC Rules, rules 209.3.2 [defining "position"], 209.3.5 [defining "class"].) Each of the Q-50 Sergeants in question received a proper "appointment" to a "position" within the Q-50 "class." (See SF CSC Rules, rules 202.1.1 [defining "permanent civil service" appointment].) Despite the propriety of their "appointments," the Commission found that "the assignments of Q-50 Sergeants to work historically and routinely performed by Q-35 Assistant Inspectors and 0380 Inspectors facially violated . . . Commission [r]ules . . . ." (Italics added.) The rules provide that "[t]emporary out-of-class assignments shall not be made when an appointment based on the regularly established Rules and procedures of the . . . Commission may be made." (SF CSC Rules, rule 209.16.2, para. 4.)
As previously noted, the Commission found valid all "appointments" made to the rank of Q-50 Sergeant from the "eligible list" resulting from the 2006 examination. (See SF CSC Rules, rule 202.19 [eligible list is "list of names of persons who have passed a civil service examination"].) OFJ does not contend this finding was erroneous. To the extent OFJ may be understood to argue that the out-of-class assignments of Q-50 Sergeants shows that they were actually appointed to positions within the Q-35 rank, that argument conflicts with the Commission's unchallenged finding that the appointments were valid. Moreover, the law does not recognize such de facto appointments. (Cf. Kreutzer v. City and County of San Francisco (2008) 166 Cal.App.4th 306, 314 ["employees do not become entitled to occupy positions in classifications other than the ones to which they were appointed merely by virtue of having been assigned duties that properly belong to a higher classification"].)
The Commission's order therefore directed DHR to amend the Q-50 "class specification," that is, the "written delineation of the levels of duties and essential functions of a class" which serves as "the official description of the class." (SF CSC Rules, rules 209.3.8, 209.6.1.) The "amendment" ordered by the Commission was a "formal revision of the class specifications for an existing class." (SF CSC Rules, rule 209.3.13.) The purpose of the amendment was to "make clear that the duties of Q-50 Sergeant extend to full investigative matters pursuant to policies adopted by the [SFPD]." The Human Resources Director complied with the order, amending the Q-50 class specification "to reflect the major duties of positions within the class . . . ." (SF CSC Rules, rule 209.1.5.) Because no party appealed the amendment, it became final. (SF CSC Rules, rule 209.1.7.) When the class specification was amended, currently serving Q-50 Sergeants retained "continued permanent status" in the Q-50 class. (SF CSC Rules, rule 209.10.6.) B. The Effect of the Class Specification Amendment
Now that the Q-50 class specification has been amended to comply with the Commission's order, the City asserts that the Q-50 Sergeants assigned to investigative duties are no longer working out of class. Thus, the out-of-class assignments the Commission found improper under its rules no longer exist, since the Q-50 Sergeants performing investigative work routinely and historically performed by the Q-35/0380 class are now doing work that fits within the amended class specification.
OFJ does not appear to disagree that the amended Q-50 class specification now encompasses the duties previously performed by the Q-35/0380 class. Indeed, OFJ states that the amendment "significantly expanded the Q-50 job duties so as to swallow whole an entirely separate job classification—that of Q-35/0380s . . . ." OFJ nevertheless contends the Q-50 Sergeants remain unqualified for assignment to "investigative sergeant" positions because they have never demonstrated their qualifications by examination. OFJ asserts the Sergeants are still working out of class because the only way to cure the out-of-class assignments would be to (1) amend the class specification and (2) "operationalize" the amendment by holding a new examination and establishing a new eligible list. In OFJ's view, all Q-50 Sergeants must be retested before they may carry out the investigative functions included within the amended class specification.
OFJ devotes two pages of its reply brief to criticizing the amendment of the Q-50 class specification, calling it "unprecedented" and claiming it resulted in a " 'back door' consolidation" of the Q-35 and Q-50 classes. We are puzzled by this argument, because we have no ability to entertain it. As set forth in our statement of facts, OFJ did not challenge the amendment of the Q-50 class specification, and it is now final and no longer subject to review. (SF CSC Rules, rule 209.1.7.)
We reject this argument for several reasons. First, the Charter provisions and Commission rules upon which OFJ relies are inapposite. For example, OFJ cites section 10.102 of the Charter and Rule 214.2 to support its contention that the only way in which Q-50 Sergeants may qualify for assignment to investigative positions is by examination. Charter section 10.102 provides, however, that DHR "shall determine appointments on the basis of merit and fitness as shown by appropriate test . . . ." (Italics added.) That section says nothing about "assignments." Similarly, Rule 214.2 defines the term "permanent appointment" as "an appointment made as a result of certification from an eligible list to a permanent position." Thus, neither Charter section 10.102 nor Rule 214.2 speaks to the question of assignments, and it is undisputed that the Q-50 Sergeants were properly appointed to their class after they had taken and passed the requisite examination and had been certified from the eligible list. They were thereafter assigned to investigative duties, assignments that the Commission allowed to continue in place after balancing the equities.
Second, OFJ's argument is based on the assumption that the Q-50 Sergeants have never been tested to demonstrate they possess the knowledge, skills, and abilities necessary to perform investigative functions. But the Commission made no findings regarding either the abilities of the Q-50 Sergeants or the content of the 2006 examination for the Q-50 class, beyond a brief remark that the announcement for that examination referred to investigative work. We therefore do not read the Commission's order and statement of decision to require that DHR amend the Q-50 class specification and then retest incumbent Q-50 Sergeants. Had the Commission intended to order that individuals already serving in the Q-50 class be retested after amendment of the class specification, it could easily have included such a directive in its order. Instead, the Commission's order directed DHR to amend the class specification so it would be clear that the duties of Q-50 Sergeants extend to full investigative matters. The Commission simply appeared to recognize that the SFPD's investigative ranks had evolved over time and that policies adopted by the SFPD had broadened the duties of the Q-50 class to include full investigative matters.
The portions of the Commission's statement of decision on which OFJ relies do not suggest otherwise. The statement of decision does say that "[t]he proper way of expanding the duties of a class is first to amend the class spec and then to hold an examination for the class whose functions and duties have been expanded, with an exam announcement fashioned accordingly. Amending the class specs must come first." (Italics added.) As the italicized language indicates, however, this statement was a reference to the announcement for the 2006 Q-50 examination, which referred to investigative work. All the Commission was saying was that the reference to investigative work in the examination announcement was broader than the then-existing class specification for Q-50 Sergeant, and thus the proper procedure would have been for DHR to amend the class specification and then post an examination announcement that conformed to that specification.
Similarly, the Commission's statement about the choices SFPD could make after amendment of the class specification do not assist OFJ's argument. The Commission explained that after amendment of the class specification, "the Police Department will have a choice. It can either promote eligibles from a hybrid Q35/Q50 list to the rank of Sergeant and detail them to the Investigations Bureau, or it can change course and return to appointing Q35 Assistant Inspectors for investigative work." (Italics added.) This statement appears to refer only to future promotions to the rank of Q50 Sergeant. We see nothing in it that suggests that individuals already serving as Q50 Sergeants would need to be retested before being assigned to investigative work.
Third, OFJ's argument appears inconsistent with the Commission's rules. If OFJ were correct, it would seem to follow that any amendment of a class specification that expanded the duties of a class would automatically necessitate the retesting of all those currently serving in the amended class, because members of the former class would not have demonstrated by examination that they are capable of performing the duties described in the amended class specification. The Commission's rules provide, however, that when a "class description has been changed to more accurately describe the duties actually being performed, all employees with permanent status in the former class shall have continued permanent status in the renumbered or retitled class." (SF CSC Rules, rule 209.10.6.) Indeed, those who have taken the examination for the former class and are eligibles on a list in the former class continue as eligibles in the renumbered or retitled class. (Ibid.) OFJ does not reconcile its argument that retesting is required with this rule.
For all these reasons, we disagree with OFJ that the Q-50 Sergeants are still working out of class. The amendment of the class specification for the Q-50 Sergeants means that Q-50 Sergeants assigned to investigative work are performing duties and functions that are within "the official description of the class." (SF CSC Rules, rule 209.6.1.) If OFJ believed that the amended class specification did not accurately describe the duties and functions of Q-50 Sergeants, or was otherwise improper, it should have appealed the amendment to the Commission. (See SF CSC Rules, rules 209.1.7, 209.2.1.) Having failed to do so, it may not now be heard to complain that Q-50 Sergeants are performing duties that are admittedly within the amended specification. C. The Amendment of the Class Specification Moots OFJ's Claims Regarding the Out-of-Class Assignments.
An action is generally rendered moot when the administrative regulation or order at issue is repealed prior to judgment or pending appeal. (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 135, 133-134 [after trial court declared milk marketing order invalid, agency's revocation of challenged order and issuance of new order rendered appeal from judgment moot]; accord, National Assn. of Wine Bottlers v. Paul (1969) 268 Cal.App.2d 741, 745-746 [declining to render opinion on legal authority of Director of Agriculture to prohibit certain sales of bulk grape products after termination of invalid marketing order rendered appeal moot].) This is because California courts will not render advisory opinions on the validity of local laws or regulations that have been rescinded prior to trial. (See Dawson v. Town of Los Altos Hills (1976) 16 Cal.3d 676, 687, superseded by const. amend. on other grounds as stated in Not About Water Com. v. Board of Supervisors (2002) 95 Cal.App.4th 982, 994.)
Similarly, if the action of local officials is found to have violated governing law, and the officials then act to cure the violation, the action may become moot. Thus, in Giles v. Horn (2002) 100 Cal.App.4th 206, the court held county officials had violated the county's charter by hiring private contractors to perform services for the county without first making a determination that the contractors could provide the services more economically and efficiently than civil service employees. (Id. at pp. 224-226.) The court nevertheless found the plaintiffs' claims for writ of mandate and injunction moot, because the contracts at issue had been fully performed. (Id. at p. 228.) The court therefore held that the "[p]laintiffs' claim that defendants violated the County Charter provisions requiring a finding of economy and efficiency before contracting with non-civil-service contractors ha[d] lost its essential character" and could not be considered on appeal. (Ibid.) Noting that county officials had complied with the trial court's order and made the required economy and efficiency determination before awarding subsequent contracts, the court explained that "[c]ases are often found moot when a party has complied with a court's order before an appeal has been decided." (Id. at p. 229.)
In this case, as in Giles v. Horn, the City has corrected the violation of the civil service rules identified by the Commission. In compliance with the Commission's order, DHR amended the class specification for Q-50 Sergeants to clarify that their duties extend to full investigative matters. OFJ did not appeal the amendment of the class specification, and it has therefore forfeited any challenge to it. With the final amendment of the class specification, the Q-50 Sergeants assigned to investigative work are no longer working out of class.
As we recently explained, "[t]he pivotal question in determining if a case is moot is . . . whether the court can grant the plaintiff any effectual relief. [Citations.]" (Wilson & Wilson, supra, 191 Cal.App.4th at p. 1574.) In its amended petition, OFJ requested an order directing the Commission to set aside its order allowing Q-50 Sergeants to continue to work or work in the future in traditionally and historically Q-35/0380 positions. It also requested that the Q-50 Sergeants be removed from those positions and that the resulting vacancies be filled with eligibles from the 1998 Q-35 list. OFJ further asked the court to order that all future vacancies in positions traditionally and historically held by Q-35 Assistant Inspectors and 0380 Inspectors be filled by appointing individuals from the 1998 Q-35 list.
Because the Q-50 Sergeants are no longer working out of class, we could not grant the relief OFJ requested in its amended petition. It did not request that the trial court void the appointments of the Q-50 Sergeants, and thus their right to hold positions in that class is unchallenged. As OFJ concedes, the Q-50 class specification now covers the kind of investigative duties previously performed by Q-35 Assistant Inspectors and 0380 Inspectors. Furthermore, in accordance with the Commission's order, DHR has already announced and administered a hybrid Q-35/Q-50 examination, and hundreds of police officers have taken it. As events have now made the relief OFJ requested "impracticable, the controversy has become 'overripe' and is therefore moot. [Citations.]" (Wilson & Wilson, supra, 191 Cal.App.4th at p. 1574; see also Giles v. Horn, supra, 100 Cal.App.4th at p. 229.) D. OFJ's Claims for Monetary Relief Do Not Preclude a Finding of Mootness.
OFJ asserts that even if the class specification amendment cured the out-of-class violation found by the Commission, its claims for monetary relief are not moot. It argues that some Q-35 eligibles are owed monetary relief and other benefits to make them whole for the ongoing effects of the City's past unlawful actions. We cannot agree.
As the City correctly points out, OFJ's argument is premised on the assumption that but for the assignment of Q-50 Sergeants to the Investigations Bureau, the Chief would have appointed Q-35 Assistant Inspectors from the 1998 Q-35 list. The City notes that there is no evidence in the record that there were vacancies in the Assistant Inspector rank, that funds existed for such appointments, or that requisitions were available and approved by the City to make such appointments. OFJ appears to argue that the very fact the Chief appointed Q-50 Sergeants and assigned them to the Investigations Bureau demonstrates there were vacancies that should have been filled by eligibles from the 1998 Q-35 list. According to OFJ, the Chief and DHR were under a ministerial duty to fill those vacancies with Q-35 eligibles.
We can find no evidence in the record to support OFJ's assumption that there were vacancies in the Q-35 rank that could have and necessarily would have been filled with Q-35 eligibles. Furthermore, even if the Chief had been made aware that she could not properly assign Q-50 Sergeants to the Investigations Bureau, it does not necessarily follow that she would have been compelled to appoint Assistant Inspectors from the 1998 Q-35 list. The City had already fully complied with all appointment requirements under the 1998 Q-35 Order. As the trial court suggested, "the Director of Human Resources and the Chief could have done something else which was to wait and instead decide that the [1998 Q-35] list was so old that they were going to give a new test and appoint off a new list." (See Higgins v. Lynch (1946) 72 Cal.App.2d 526, 527 [city manager rejected names certified by civil service commission because eligible list was 21 months old and members of department in armed services would return shortly and be eligible to take next examination].) Thus, rather than being forced to appoint any of the Q-35 eligibles, the Chief might simply have decided to appoint no one at all until a new list of eligibles became available.
Such a course of action would have been entirely consistent with the merit principles animating the civil service system. As we have discussed, the 1998 Q-35 list was already nine years old when the Chief appointed the Q-50 Sergeants in 2007. (Cf. SF CSC Rules, rule 211.2 [promotional examinations are to be held at least once every four years for each promotive position or rank in the SFPD.) The list was, in the Commission's words, "exceedingly stale from a civil service standpoint." In addition, the testimony before the Commission established that over 50 percent of those on the 1998 Q-35 list had already received appointments. The last appointment made from the list was made at the 36th percentile, meaning that 64 percent of those who took the original test had scored higher. Deferring any new appointments until a new eligible list became available would have been fully consistent with what the Commission called "our merit system's fundamental policy of frequent examinations and fresh eligible lists."
In short, OFJ's claims that certain Q-35 eligibles are entitled to monetary compensation are too vague and speculative to prevent a finding of mootness. There is no evidence that the Q-35 eligibles had a specific entitlement to appointments of which they were unlawfully deprived. (Cf. Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 632 [county did not infringe any property right of employee where he could not show entitlement to a specific position at county medical center].) "[A]ny possibility of promotion was contingent . . . upon the number of . . . positions available. Such contingencies belie the claim that the police officers had even so much as a reasonable expectation of being promoted." (See Nunez v. City of Los Angeles (9th Cir. 1998) 147 F.3d 867, 872.) Indeed, OFJ concedes that the individuals to whom monetary compensation is allegedly owed are "presently unidentified." E. Conclusion
This distinguishes the case before us from those cited by OFJ. In each of those cases, the petitioners had been denied the benefits of a property interest or right to which they were legally entitled. (See City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 862, 868 [county could be compelled by mandamus to pay misallocated tax funds to redevelopment agency having undisputed statutory right to funds]; California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 708-710 [mandate would issue to compel state agency to conduct retroactive review of certain Medi-Cal reimbursement rates; no monetary relief ordered]; Union of American Physicians & Dentists v. Kizer (1990) 223 Cal.App.3d 490, 502-504 [permitting Medi-Cal providers to pursue claims for reimbursement of funds paid pursuant to unlawfully conducted audits]; Hypolite v. Carleson (1975) 52 Cal.App.3d 566, 583, 585 [affirming award of retroactive public assistance benefits to class members who demonstrated entitlement to receipt of benefits]; Mullins v. Toothman (1965) 231 Cal.App.2d 756, 762-763 [affirming judgment awarding police sergeants pay differential for period they worked out of class as inspectors]; Ahlstedt v. Board of Education (1947) 79 Cal.App.2d 845, 855-857 [permanent civil service employee entitled to reinstatement and back pay where employer failed to follow statutory procedures for dismissal].)
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We hold that amendment of the class specification for Q-50 Sergeant rendered this action moot. Ordinarily, "[w]here the trial court has decided a nonjusticiable controversy, the appropriate course is to reverse its judgment and remand the matter to the trial court with instructions to dismiss the action. [Citations.]" (Wilson & Wilson, supra, 191 Cal.App.4th at p. 1585.) Here, because the trial court entertained the action and denied OFJ the relief sought, our affirmance of the judgment achieves the same result. (Zetterberg v. State Dept. of Public Health (1974) 43 Cal.App.3d 657, 665.)
III. DISPOSITION
The judgment is affirmed.
Bruiniers, J. We concur: Simons, Acting P. J. Needham, J.