Wednesday, July 6, 2011

AB 455: Gives Unions Power to Appoint Half of Civil Service Commission Members

AB 455 was introduced by Assemblymember Campos on February 15, 2011 and amended on March 31, 2011.  AB 455 has passed both the Assembly and Senate and was ordered enrolled on July 5, 2011. It now awaits signature from the Governor.  AB 455 would add section 3507.7 to the MMBA, which would provide:
(a) When a public agency has established a personnel commission or merit commission to administer personnel rules or a merit system, the governing board of the public agency shall appoint one-half of the members of the commission, and one-half of the members of the commission, nominated by the recognized employee organization, shall be appointed by the governing board of the public agency. Whenever multiple bargaining units are represented by different recognized employee organizations, the employee organization representing the largest number of employees shall be the one empowered to designate commission members pursuant to this section.
(b) The commission members selected under subdivision (a) shall elect jointly one additional member of the commission, who will act as chairperson of the commission.
  1. According to the legislative analysis, the author of the bill states that it is needed because, “… despite the importance of merit and personnel commissions to employment relations, the MMBA is silent as to how these commissions should be composed.” This is true, however, the silence is by design. The preamble to the MMBA expressly states that, “Nothing contained herein shall be deemed to supersede the provisions of existing state law and the charters, ordinances, and rules of local public agencies that establish and regulate a merit or civil service system …” (Gov. Code, § 3500, subd. (a).) Thus, the MMBA was never intended to regulate civil service commissions. That function was reserved to the public agencies.
  2. The practical effect of AB 455 would be to require civil service commissions to use a form of “tripartite” arbitration. Under the system created by AB 455, the jointly elected chair of the commission essentially becomes an arbitrator. Whether there are three, five, seven, or nine members of the commission basically becomes irrelevant. It is the chairperson who will get the deciding vote. Faced with such a situation, many cities and counties may find it easier (and cheaper) just to use an arbitrator in civil service proceedings instead of a civil service commission. This is probably exactly what the unions hope to gain.
  3. As with several other union-sponsored bills before the legislature, this one poses significant “home rule” issues for charter cities and counties. My personal opinion (and again, I’m a management lawyer) is that this bill cannot trump the constitutional home rule provisions governing charter cities and counties. However, that will be an issue to be litigated in the event the Governor signs AB 455.
  4. One last note, this bill as written would apply to both the City of Los Angeles and Los Angeles County. Both the city and county of Los Angeles are not subject to PERB, although both are subject to the MMBA. The language and placement of this bill in the MMBA means that both the city and county of Los Angeles are covered by it. I don’t know whether this was intended by the author or a drafting oversight. However, my friends in Los Angeles are usually extremely protective of their governance structure and I’m surprised this bill made it through the legislature without Los Angeles trying to get an exemption.