McClure v. County of San Diego

*815WIENER, J., Concurring and Dissenting.

I agree with the majority that the County timely filed exceptions to the hearing officer’s decision and order as required by article VIII, section 11, subsection (b)(2). I also agree that there are situations in which the chief administrative officer (CAO) may delay more than 15 county business days before acting on timely filed exceptions, i.e., the 15-day period of article VIII, section 11(b)(2) of the San Diego County Labor Relations Ordinance (Ordinance) is not jurisdictional. My only, but rather fundamental, disagreement with the majority is that under their interpretation of the Ordinance the CAO may intentionally and/or unreasonably refuse to take any action on the hearing officer’s decision and order, leaving the aggrieved party with the questionable remedy of filing suit to obtain a favorable decision. In my view the purpose of the Ordinance mandates that the CAO determine the validity of the exceptions within the stated time period unless good cause can be shown for a later decision. Because the issue of good cause was never directly addressed by the trial court, I would reverse the judgment to permit further proceedings to determine whether the CAO was justified in deferring his decision.

The majority opinion is principally devoted to what I respectfully believe is a nonissue, i.e., whether the County filed exceptions with the CAO within 20 days after the hearing officer’s decision and order. I think it is clear that the exceptions were timely filed and the employees do not seriously contend otherwise. The parties and the trial court recognized the crucial issue was whether the CAO could postpone his decision indefinitely once the exceptions had been filed and the 15 days had expired. The CAO tried to explain his delay by stating he was under the impression the employees had acquiesced in postponing further action in light of the CAO’s efforts to settle the case. The trial court’s decision assumed that the exceptions were timely filed and went on to conclude that the CAO’s 14 months of inaction amounted to arbitrary and capricious delay. Within this frame, our function is to decide the correctness of the trial court’s implicit conclusion that the 15-day period was not jurisdictional and, if not jurisdictional, further determine whether sufficient evidence supports the court’s factual finding that the delay was arbitrary and capricious.

The majority’s holding that the CAO is not bound by the prescribed 15 days is based on their analysis that the Ordinance requires the CAO’s reasoned and affirmative decision. The majority correctly say that the CAO’s inaction for 15 business days following receipt of the exceptions is an insufficient reason to treat the hearing officer’s decision as final. I agree with this conclusion for several reasons including the simple fact that had the County intended the expiration of 15 days to be determinative, the Ordinance would have so stated. Lacking this statement and the obvious need of the CAO to fully consider labor problems in the context of other equally pressing prob*816lems, it is understandable why the County did not expressly provide that the hearing officer’s decision was to become final if the CAO failed to act within 15 business days after the exceptions were filed.

The majority’s recognition that the CAO should act in a positive fashion and that the Ordinance should not be construed as defining a jurisdictional limitations period does not, however, fully address the problem. Their decision ignores a manifest purpose of the Ordinance in promptly resolving unfair labor practice charges after the relevant facts have been established before a hearing officer.

San Diego County’s labor relations ordinance is an attempt to provide a comprehensive procedure for the efficient resolution of labor disputes between the County and its employees. (Ordinance, art. I, § 2.) In addition to recognizing the rights of County employees to join and be represented by organizations of their choice, the Ordinance prescribes the process for investigating, deciding and implementing allegations of an unfair labor practice. (Id. art. VIII.) Consistent with the stated purposes of the Ordinance—to promote communication between the County and its employees and to enhance the County’s relationship with its employees (id. art. I, § 2)—the Ordinance prescribes definite time periods within which decisions on allegations of unfair labor practices must be made. In general terms the Ordinance requires those decisions to be made promptly. For example, article VIII, section 10 requires the hearing officer to promptly decide the matters once the record has been completed. The time periods involved in this case also reflect the need for prompt action. It is clear those provisions do not anticipate that the CAO should be allowed to dilly-dally. Unless exceptions are filed with the CAO within 20 days after the decision of the hearing officer that decision stands and the parties are required to meet to develop the appropriate implementation procedure. (Id. art. VIII, § 11, subsec. (b)(1).) Where exceptions are filed the CAO shall determine the validity of those exceptions within 15 County business days. The Ordinance’s concern with prompt action is reflected in the unambiguous phrase “shall determine” and in allowing the CAO 15 “business” days as contrasted with calendar days. Such language categorically directs the CAO to timely act. Inaction is not permitted because the CAO may harbor the personal belief—benign or otherwise—that County labor relations will be improved if the hearing officer’s decision is ignored and the problem resolved by other factors including the employees’ financial and emotional needs for other more satisfactory employment with a different employer.

The majority’s solution to the problem of a “recalcitrant administrator” is to suggest that the affected employees file a petition for writ of mandate directing the CAO to act on the exceptions. This suggestion effectively admits *817that the CAO will always be able to unfairly “buy time” before implementing a hearing officer’s decision with which he disagrees, even if he has no legal basis for accepting the County’s exceptions. Moreover, such a proposal places the affected employees in the position of having to sue the supposedly impartial arbiter who is charged with deciding an issue for or against them, hardly the preferred means for assuring objective decisionmaking.

The majority’s proposal would not be nearly so objectionable if the procedures of article VIII were realistically a two-way street. It is clear, however, that the process is skewed in favor of the county where, following the filing of exceptions, the determinative decisionmaker is the administrative head of County government. It is difficult for me to believe that had the decision in this case been in the County’s favor that the CAO would have been as dilatory as he was here. Where the County prevails, the CAO has no incentive to delay implementation of that decision or to reach a compromise solution. He will merely reject any exceptions filed by the affected employee(s) and order implementation. Delay is only in the County’s interests if the hearing officer renders a decision adverse to the County. In such cases, not only are aggrieved employees left without a meaningful remedy even though they have complied with each step required by the Ordinance, but the purpose of the Ordinance itself is frustrated by the added and unnecessary costly delay of further litigation which disrupts the administrative process.

While I appreciate the need for the CAO to act in a thoughtful manner, which may necessitate a reasonable postponement of a decision following the filing of exceptions, I do not believe the Ordinance contemplates that any ensuing delay should be arbitrary or open ended. The ultimate purpose of the Ordinance is to improve employee relations by establishing a meaningful procedure to resolve labor disputes, such purpose is not served where inaction by a CAO has no reasonable basis, merely reflecting the lethargy of bureaucracy or the arrogance of delegated power. The purpose is similarly ill served by an interpretation of the Ordinance which creates seemingly unending obstacles to the resolution of legitimate disputes. When compliance with employee dispute resolution procedures becomes a nearly Sisyphean task, it breeds disrespect for the procedures and, ultimately, for the employer as well. Such a result, in the context of the public employer, has ramifications far beyond the employment relationship.

In my view, the best way to effectuate the purpose of the Ordinance and to protect the legitimate interests of all concerned parties is to allow the CAO to delay his action provided he has good cause to do so. Here the trial court was confronted with a difficult factual case in the context of uncertain legal standards. Although I believe the trial court correctly decided the legal issue, the factual issue justifying the CAO’s delay was not sufficiently explored. In *818fairness to the parties and because of the paucity of the evidence on this issue, I believe the proper procedure is to remand for a further hearing on whether there was sufficient good cause for the CAO to delay acting on the exceptions. I would therefore remand for further proceedings.