Metropolitan News-Enterprise


Wednesday, July 16, 2003


Page 1


Charter Cities Not Exempt From Prevailing Wage Law—C.A.


By KENNETH OFGANG, Staff Writer/Appellate Courts


Charter cities are not exempt from state law requiring that prevailing wages be paid on public works projects, the Court of Appeal for this district has ruled.

Div. Seven Monday sided with the Department of Industrial Relations and an organization of construction unions, overturning an order by Los Angeles Superior Court Judge David Yaffe order in favor of the City of Long Beach. Forty-four other cities had joined in an amicus brief supporting Long Beach.

The city brought a writ petition after the DIR ruled that the construction of the city’s new animal shelter was subject to Labor Code Sec. 1771. The statute requires that all persons employed on public works be paid at least “the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed.”

Yaffe granted the writ on two grounds—that the shelter is not a public work because it was built by the Los Angeles Society for the Prevention of Cruelty to Animals, even though the city contributed $1.5 million towards related costs, and that the project is a “municipal affair” of a charter city and thus exempt from general state laws.

Wrong Twice

But Justice Earl Johnson Jr., writing for the Court of Appeal, said the trial judge was wrong on both issues. The prevailing wage law, the justice said, must “be liberally construed” in order “to protect and benefit workers and the public.”

Johnson agreed with the DIR that public funds were used for the “construction” of the shelter, rejecting the city’s position that its contributions for such expenses as architectural design, project management, attorney fees, and surveying were not construction costs.

Long Beach, the justice explained, “interprets ‘construction’ narrowly to mean only the actual building of the facility-hammering nails, spreading mortar, installing pipes, and the like.” But the city offered “little support for this narrow interpretation,” Johnson said.

The jurist acknowledged that the federal Davis-Bacon Act, a prevailing wage law, has been interpreted by the Department of Labor as limiting “construction” to work performed by “laborers and mechanics.” But California has traditionally interpreted the phrase more broadly, Johnson noted.

The justice went on to reject the contention that the building of the shelter falls under the state constitutional provision granting charter cities autonomy over “municipal affairs.”

In doing so, he acknowledged that a Supreme Court decision, City of Pasadena v. Charleville (1932) 215 Cal. 384, held that the state’s prevailing wage law could not be applied to a charter city in connection with the construction of a fence around the city’s reservoir.

Later Cases

But later cases, Johnson noted, held that other construction activities conducted by charter cities were not purely “municipal” in character, and that general state laws, including the prevailing wage law, applied.

Long Beach’s plan for the animal shelter showed that it related to matters beyond the scope of municipal affairs, the justice concluded.

Johnson wrote:

“The factor which in our view takes the shelter out of the realm of a strictly municipal affair is its externality. It is undisputed this shelter is part of the SPCA-LA’s countywide system of animal shelters, providing services to all of the communities within the county, not just Long Beach. Indeed, according to the SPCA-LA this shelter is intended to serve the entire county of Los Angeles as well as parts of Orange County bordering on Long Beach. The City’s animal control department, which is housed in the same facility, also affects the surrounding communities because domesticated or feral animals separated from their home environment and not picked up by the City could easily cross into surrounding communities such as Lakewood or Los Alamitos bringing mischief and disease with them.”

Statewide Concern

Besides, he went on to say, regardless of the situation that prevailed in 1932 when City of Pasadena was decided, payment of prevailing wages is today a matter of statewide concern, so state law applies to charter cities, even as to a purely “municipal” projects.

He cited, among other developments, findings by the Legislature that payment of prevailing wages is necessary to attract skilled workers and assure highest-quality construction, and to maintain the “wage base” in the community where a project is being built.

“Clearly,” Johnson wrote, “these two main purposes of the prevailing wage law-ensuring a supply of skilled workers and protecting area wage standards-respond to statewide concerns, not merely local interests.”

Presiding Justice Dennis Perluss and Los Angeles Superior Court Judge Aurelio Munoz, sitting on assignment, concurred in the opinion.

The case was argued in the Court of Appeal by Staff Counsel Anthony Mischel for the DIR, Scott A. Kronland of Altshuler, Berzon, Nussbaum, Rubin & Demain for The State Building and Construction Trades Council, and Principal Deputy City Attorney Daniel S. Murphy for Long Beach.

The case is City of Long Beach v. Department of Industrial Relations, 03 S.O.S. 3712.


Copyright 2003, Metropolitan News Company