Metropolitan News-Enterprise


Friday, July 15, 2011


Page 3


S.C. to Decide Whether L.A. City Employees May Arbitrate Furloughs


By a MetNews Staff Writer


The California Supreme Court has agreed to decide whether Los Angeles city employees may arbitrate furloughs implemented as a budget-cutting measure.The justices, at their weekly conference in San Francisco Wednesday, voted unanimously for review in City of Los Angeles v. Superior Court (Engineers & Architects Association) (2010) 193 Cal.App.4th 1159.

Div. Three of this district’s Court of Appeal granted the city’s petition for writ of mandate and directed that a Los Angeles Superior Court judge’s order requiring arbitration of over 400 employee grievances be overturned. The Engineers and Architects Association, representing the employees, had obtained the writ compelling arbitration from Judge Gregory Alarcon.

Justice Walter Croskey, writing for the court, said that there was some question as to whether the memorandum of understanding between the city and the union subjects furloughs to the grievance process. But even if it purports to do so, the justice explained, the grievances cannot be arbitrated because the charter gives the mayor and City Council non-delegable power to decide whether furloughs are necessary.

The city implemented the furloughs under the mayor’s May 2009 declaration of fiscal emergency and a subsequently enacted emergency ordinance directing the mayor to implement a furlough plan. The ordinance was accompanied by findings that the city’s general fund deficit had reached $529 million and would grow to more than $1 billion by the end of the 2010-2011 fiscal year absent changes, that the city needed to cut expenses and borrow funds to avoid running out of cash, and that labor-related costs had to be reduced because they were 80 percent of the city’s expenses.

The city cited Government Code Sec. 3404.5, and the city’s own Administrative Code, both of which provide an “emergency” exception to the city’s obligation to consult with employee unions prior to adopting ordinances relating to matters within the scope of union representation.

The city began furloughing employees one day per 80-hour pay period, although benefits based on an 80-hour pay period were maintained. Employee grievances over the furloughs were denied on the ground that the emergency ordinance trumped any conflicting provision of the MOUs.

The union argued that the issue of whether furloughs violated the workweek and salary provisions of the MOUs would involve the “interpretation or application” of those agreements, thus rendering the issue grievable. Alarcon ruled that the broad language of the grievance clauses encompassed the furloughs and granted the petition.

The Court of Appeal, however, said the city could not lawfully delegate its “discretionary salary setting and budget making authority” to an arbitrator.

The charter, Croskey noted, empowers the council to “set salaries for all officers and employees of the city.” That power, he said, encompasses furloughing employees to reduce the city’s overall salary costs.

The union’s argument that the arbitrator would not be determining budget policy, but merely interpreting the wage and hour provisions of the MOUs, “is an elevation of terms over substance,” Croskey said.

In other conference action Wednesday, the justices declined to hear a challenge to a Los Angeles municipal ordinance requiring sterilization of dogs and cats within the city. This district’s Court of Appeal ruled in Concerned Dog Owners of California v. City of Los Angeles (2011) 194 Cal.App.4th that the ordinance adopted in 2008 was a valid exercise of the city’s police power and did not implicate any constitutional rights.

It requires the owner of a dog or cat to spay or neuter the animal unless one of six exemptions is satisfied. Exemptions affect animals whose owners hold breeder permits, as well as show animals, service dogs, and those used for law enforcement or similar public purposes.

Justice Jeffrey W. Johnson, writing for Div. One, said that there was no constitutional right to keep a pet unaltered, that requiring spaying or neutering is not a taking of property, and that the ordinance “regulates conduct not speech.”

The challengers had argued that requiring them to purchase breeder permits if they did not want to alter their animals was a form of compelled speech, since “breeder” is looked upon as a pejorative term in some circles. But the justice pointed out that there was no actual compulsion involved, and that there was no requirement that permit holders actually breed the animals.

The high court also declined to review a Court of Appeal ruling affirming lower court orders in a long-running family law battle that has spawned complaints in various forums about the conduct of local judicial officers.

Justice Laurie Zelon, writing for this district’s Div. Seven in an unpublished opinion April 20, said Laura Lynn failed to show error in Los Angeles Superior Court  Judge Elizabeth Feffer’s 2009 denial of a motion to hold ex-husband Timothy Lynn in contempt.

Lynn had claimed that her ex-spouse—their divorce was final in 1998—violated court orders issued in 1998 and 2001 with respect to contact with the children, derogatory comments about the other parent, transmission of contact information, corporal punishment, listing of parental information on the children’s school forms, and dissemination of information about the children to the other parent.

She also contended that the court file in her case had been altered, an issue she has pursued in complaints to the FBI, Commission on Judicial Performance, and District Attorney’s Office. She has regularly made complaints about the conduct of various judicial officers, including Feffer.

Zelon said in her opinion that Lynn failed to support her arguments with citations to the record, raised arguments irrelevant to the issues on appeal, failed to present factual and legal argument to support her assertions, and failed to factually support her claims of judicial bias.


Copyright 2011, Metropolitan News Company