Filed 5/23/18; Certified for Publication 6/21/18 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
           SECOND APPELLATE DISTRICT
                  DIVISION TWO

THE METROPOLITAN WATER                                     B276898
DISTRICT OF SOUTHERN
CALIFORNIA,                                                (Los Angeles County
                                                           Super. Ct. No. BS155355)
              Plaintiff and Respondent,

        v.

BARRY WINOGRAD,

              Defendant;

AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES,
LOCAL 1902, AFL/CIO,

              Real Party in Interest and
Appellant.



      APPEAL from a judgment of the Superior Court of
Los Angeles County. Mary H. Strobel, Judge. Affirmed.
      Rothner, Segall & Greenstone, Anthony Segall and Eli
Naduris-Weissman for Real Party in Interest and Appellant.
      Metropolitan Water District of Southern California, Marcia
L. Scully, Heather C. Beatty, and Henry Torres, Jr. for Plaintiff
and Respondent.
       American Federation of State, County, & Municipal
Employees, Local 1902, AFL/CIO (AFSCME), real party in
interest and appellant, appeals from a trial court decision
granting a writ of administrative mandamus filed by respondent
Metropolitan Water District of Southern California (the District).
The District filed the petition under Code of Civil Procedure
section 1094.5 to challenge the decision of a hearing officer on an
AFSCME grievance. The trial court set aside the hearing officer’s
decision on the grounds that the hearing officer’s decision (1)
granted relief on an issue that was not ripe; and (2) exceeded the
scope of the issue before him.
       We agree that the matter did not present a ripe
controversy. We further agree that the hearing officer exceeded
the scope of the issue before him. Finally, under the
circumstances of this case, we conclude the hearing officer
exceeded his authority pursuant to the Memorandum of
Understanding between the parties (MOU). Therefore, we affirm
the judgment of the trial court.
                    FACTUAL BACKGROUND
The parties
       AFSCME is the exclusive representative of employees in
the general employees bargaining unit of the District.
       The District is a governmental agency, formed under the
Metropolitan Water District Act (Stats. 1969, ch. 209, p. 492 et
seq., 72B West’s Ann. Wat. – Appen. (1995 ed.) § 109-1 et seq.). It
imports, stores, and distributes water to member water agencies
in Southern California. (American Federation of State, County &
Municipal Employees v. Metropolitan Water Dist. (2005) 126
Cal.App.4th 247, 253.)
       Barry Winograd acted in his official capacity as a hearing
officer for the hearing officer appeal pursuant to the terms of the
MOU.




                                2
The labor agreements
     AFSCME and the District have executed labor agreements
under the Meyers-Milias-Brown Act (MMBA) (Gov. Code,
§§ 3500-3511). AFSCME and the District are party to two labor
agreements relevant to this dispute: the MOU and a 2005
agreement referred to by the parties as a “side letter.” The side
letter concerns recruitment procedures and was incorporated into
and placed at the end of the MOU.
       Section 5.2 of the MOU is captioned “Recruitment and
Selection.” Section 5.2.1(D) of the MOU defines “Employment
Testing”:
              “A test is an instrument administered by the
       Human Resources Group, used as a basis for any
       employment decision including, but not limited to,
       hiring and competitive-bid promotion. Such tests
       may measure aptitude, achievement, and other
       proficiencies. Examples include, but are not limited
       to, a review of records, interview, typing, computer
       skills, basic skills, job knowledge, work sample or
       other demonstration tests deemed reliable and job-
       related as approved by the Human Resources Group
       Manager.”

       Section 5.2.3 provides that “Qualified employees shall be
notified of the time and location of a test at least three (3) days in
advance.” Employees are “entitled to release time to participate
in and commute to, a test.”
       The 2005 side letter further states that “All candidates
meeting the Minimum Requirements for a position shall be
allowed to compete in the examination process.”
The District’s recruitment and selection procedures
       Aside from the procedures set forth in the MOU, the
District maintains its own recruitment and selection procedures
for job vacancies. The District’s written procedures “adhere to




                                  3
the provisions of all relevant Operating Policies, respective
Bargaining Unit Memorandums of Understanding, and the
Administrative Code.” As to screening of application packages,
the recruitment and selection procedures for 2010 provided that
“Internal applications are screened for Minimum Requirements
only” and that “Internal candidates meeting the minimum
requirements for a position shall be allowed to compete in the
examination process.” Under “Phase Four: Testing and
Interview,” the procedures provide: “Internal applicants who
meet Minimum Requirements will be interviewed first for any
position that is part of a bargaining unit.”
       The District’s 2012 recruitment procedure publication
added the procedure referred to in this matter as “comparative
analysis.” Pursuant to this procedure, “The Hiring Manager
reviews resumes and codes each candidate in MyJobs
SmartView, accordingly.” The options following such analysis
are: “Recommend to proceed - Invited to interview,” “Possible
Candidate - Hold for now (no action taken at this point),” and
“Recommend Not to Proceed - (no action taken at this point).”
The grievance and appeal procedure
       Article 6 of the MOU contains a multi-step “Grievance and
Appeal Procedure.” Pursuant to section 6.3.1, a “grievant” is “an
employee, a group of employees, or AFSCME Local 1902.” A
“grievance” is defined as “an alleged misapplication of a specific
provision of (1) this MOU, (2) the Administrative Code, or (3)
other rules or regulations governing personnel practices and
other terms and conditions of employment within the scope of
negotiations, which alleged misapplication adversely affects the
grievant.”
       The MOU provides for an informal resolution procedure
prior to the filing of a written grievance. It then provides for a
two-step formal grievance procedure. If a grievant is not satisfied




                                4
with the resolution proposed at the informal level, the grievant
may “file a written grievance with his Unit or Section Manager
on the District’s grievance form.” Within 10 days, the Unit or
Section Manager shall meet with the grievant and give a written
response to the grievant.
      If the grievant is not satisfied with the written response at
Level 1, described above, the grievant may “file a grievance with
his Group Manager . . . on the original grievance form.”
      After these grievance steps are exhausted, the MOU
provides for an “Appeal Procedure.” Among the subjects that
may be appealed is “[a]lleged misapplication of a specific
provision of this MOU” as well as “[w]ritten rules or regulations
governing personnel practices.”
      There is a preliminary step if one party contends that the
grievance is not “appealable.” If a party raises a dispute as to
appealability, the following procedure, found in section 6.7.1 E,
applies:
             “In the event that there is a dispute as to
      whether an issue is appealable to a Hearing Officer,
      the Hearing Officer shall decide the dispute. The
      parties agree that the Hearing Officer shall consider
      the procedural arguments, including written briefs (if
      requested by either party), and render a written
      decision, prior to the hearing on the merits of the
      dispute. If the Hearing Officer determines that the
      issue is not appealable, the grievance will be
      dismissed. If the Hearing Officer determines that the
      issue is appealable, the grievance will then be set for
      hearing on the merits before a different Hearing
      Officer.”

     The MOU specifies that “[h]earing of a grievance by the
Hearing Officer will be limited to the written grievance as




                                 5
originally filed by the employee to the extent that said grievance
has not been satisfactorily resolved.”
      After the hearing, the Hearing Officer provides a decision.
“The decision of the Hearing Officer shall not add to, subtract
from, or otherwise modify the terms and conditions of [the]
MOU.” The decision is “final and binding” on the parties. “Upon
completion of the Hearing Officer process,” the decision of the
Hearing Officer can be appealed pursuant to Code of Civil
Procedure section 1094.5.
The grievance in this matter
      The grievance in this matter concerns the District’s use of a
“comparative analysis” procedure in job postings dating back to
2005. For example, in a job posting for associate engineer, with
an application filing period of May 18, 2005 through June 7,
2005, the District specified:
              “The application and response to supplemental
      questionnaire will be used to screen an applicant’s
      ability to meet the minimum requirements. Based on
      a comparative analysis, only those candidates
      demonstrating the strongest backgrounds will be
      invited to testing.”1

      The above language was qualified with an asterisk, which
noted that “Metropolitan policy provides for all internal
applicants to participate in all portions of the examination
process if they meet minimum requirements.” However,
AFSCME points out that sometime in 2011 the District removed
from job postings the crucial asterisk that protected AFSCME
members.




1     There was some variation in the wording of the job
postings.




                                 6
                   PROCEDURAL HISTORY
Level 1 grievance procedure
     On May 1, 2013, AFSCME filed a grievance form, Level 1.
The grievance stated:
           “AFSCME has recently become aware that the
     District is placing the following language in some job
     postings. ‘. . . . [B]ased on a comparative analysis,
     only those candidates demonstrating the strongest
     backgrounds will be invited to participate in a
     technical written test and a performance test.’ This
     ‘comparative analysis’ language infers an additional
     layer of testing, is not a recognized examination
     process, and may be used to arbitrarily and unfairly
     discriminate against AFSCME union members that
     apply. The Union has not been informed or
     negotiated any changes to the examination process.
     The Union has not been contacted or informed of any
     changes to HR Recruitment procedures regarding a
     comparative analysis. [¶] As the District is aware,
     the 2011-2016 MOU was negotiated in good faith
     with a full understanding regarding HR recruitment
     procedures, which state ‘All individuals meeting the
     Minimum Requirements for a position shall be
     allowed to compete in the examination process.’”

       The specific provisions alleged to have been misapplied
were “MOU 1.1 - 1.7, 5.2, & the 2005 HR Recruitment Sideletter
(incorporated into the 2011-2016 MOU).”
       As a requested remedy, AFSCME requested that the
District “[r]emove from all future recruitment postings
‘comparative analysis,’ as this is not a recognized examination
process and infers an additional layer of testing not previously
discussed or agreed-to in the meet and confer process, and is a
violation of the negotiated 2011-2016 MOU.”




                                7
      A grievance meeting was held on May 15, 2013. On July
12, 2013, the District provided a written response to the
grievance. The District denied the grievance, explaining:
            “The Union stated it first became aware of the
      District’s use of comparative analysis upon seeing the
      following language referenced in Job Posting No.
      3533719 for an Associate Engineer dated February
      26, 2013, under the heading of Selection Procedure:

             “The applicant profile, resume, and response to
      the questionnaire will be used to screen an applicant’s
      ability to meet the minimum requirements. Based on
      a comparative analysis, only those candidates
      demonstrating the strongest backgrounds will be
      invited to participate in a written test and oral panel
      interview.”

      The District took the position that the term “comparative
analysis” is simply another term for a “review of records,” and
that a review of records is a permitted “test” as set forth in the
MOU under 5.2.1 D, “Employment Testing.” The District quoted
the portion of the MOU which describes “a review of records” as
an employment test. The District concluded that pursuant to the
MOU, a review of records can be part of the examination process.
      However, the District stated that it was considering
removing the contested language from job postings, and instead
placing the language on the District’s web page as a way to help
applicants understand the selection process.
      Seeing no violation of the MOU, the grievance was
respectfully denied.
Level II grievance procedure
      AFSCME was not satisfied with the outcome of the Level 1
grievance procedure, therefore chose to elevate the matter to a
Level II grievance. The Level II grievance meeting was held on




                                 8
September 20, 2013. On October 14, 2013,the District provided
its written response. The grievance was again denied. The
District explained:
             “The crux of this matter centers on the Union’s
      objection to the use of comparative analysis in order
      to identify those candidates demonstrating the
      strongest backgrounds, who will then proceed to the
      next phase of the examination process for a
      recruitment. As explained in the Level 1 Response,
      comparative analysis is not a new layer of testing,
      but simply a term used to describe an evaluation of
      the information provided by the candidate as part of
      a review of records, which is referenced as a test in
      the MOU under 5.2.1 D Employment Testing.”

      The District respectfully disagreed with AFSCME’s
interpretation of the review of records to constitute an additional
step prior to the testing process. Seeing no violation of the MOU
or any other provisions, the grievance was denied.
      On October 14, 2013, AFSCME requested that the matter
be heard by an Appeal Officer.
Proceedings before the Hearing Officer
      The District did not assert that the issue was not
appealable pursuant to section 6.7.1 E of the MOU. Instead, the
matter was presented to the Hearing Officer on its merits.
      The matter commenced on September 10, 2014, in front of
Hearing Officer Barry Winograd. The hearing officer inquired,
“Do the parties stipulate that the previous steps of the grievance
procedure have either been completed or waived and we are
properly at the arbitration stage?” The District’s counsel
responded in the affirmative.
      The parties stipulated to the following statement of the
issue before the Hearing Officer:




                                 9
             “Did [the District] violate MOU Section 5.2 and
      the 2005 HR Recruitment Side Letter, as
      incorporated into the 2011-2016 MOU, by including
      the following selection procedure in Job Posting
      3533719: ‘Based on a comparative analysis, only
      those candidates demonstrating the strongest
      backgrounds will be invited to participate in a
      written test and oral panel interview?’ If so, what is
      the appropriate remedy?”

      During the hearing, the parties reached a stipulation
regarding the specific job posting that was the subject of the
hearing. The stipulation provided:
            “[F]or the recruitment in question, 124 persons
      submitted their interest in the position. And of the
      124, 57 did not meet the minimum qualifications, and
      two submitted late applications. So those 59
      applicants were screened out. There was only one
      internal applicant who did not meet the minimum
      qualifications, and that applicant was screened out.”

       Thus, the parties agreed that “the comparative analysis
test was not applied to any internal candidate.”
       At the hearing, the parties agreed to the admission of 17
joint exhibits relating broadly to the District’s recruitment
practices. The exhibits included job postings between 2001 and
2014, the District’s recruitment and selection procedures from
2010, and the recruitment procedures for hiring managers dated
May 2012.
       Following the hearing, the parties filed post-hearing briefs.
AFSCME described the removal of the asterisk as a change in the
District’s policy. It argued that the District’s current position
was that it may conduct a comparative analysis without
advancing internal candidates meeting minimum qualifications
to further testing stages. Prior to removing the asterisk,




                                10
AFSCME argued, it was the District’s practice to advance
internal applicants meeting minimum requirements to all
portions of the examination process. AFSCME requested an
order directing the District to cease and desist from use of the
“comparative analysis” and to follow the MOU with respect to
recruitment.
       AFSCME anticipated that the District would argue “that
because comparative analysis was not applied in the instant case
to eliminate a qualified applicant, there is no present dispute for
the Arbitrator to resolve.” AFSCME argued that this was not the
case because “[t]he District has made clear that it will continue to
use the practice.” In conclusion, AFSCME asked that the
Hearing Officer provide an “award and order declaring that
‘comparative analysis’ of internal candidates who meet minimum
qualifications violates the agreement between the parties.”
       In its post-hearing brief, the District argued that the
matter presents a straightforward issue of contract
interpretation. The District further argued that the MOU
specifically authorizes the use of comparative analysis for
employment testing and that the District had no obligation to
cease its “long-standing practice of using comparative analysis as
an employment test during the recruitment and selection
process.”
       In addition, the District argued that the matter was not
ripe for decision, as AFSCME had not presented any evidence of
harm. The District argued:
              “AFSCME has not developed an evidentiary
       record demonstrating how [the District’s] use of [a]
       comparative analysis employment test impacted its
       membership, nor can it demonstrate that there is an
       applicant who would have passed to other steps in
       the application process . . . without [the District’s] use
       of a ‘review of records’ test in this instance.”




                                11
      The District noted that arbitrators should not “render
advisory opinions responding to hypothetical transgressions.”
The Hearing Officer’s decision
      On February 20, 2015, the hearing officer issued a written
decision. The hearing officer acknowledged that the matter was
based on “a recruitment procedure set forth in a job posting in
February 2013.” The hearing officer further acknowledged that
“as the parties stipulated, there was only one internal applicant,
and, as that individual did not meet the minimum qualifications,
a ‘comparative analysis’ approach was not utilized.” However,
the hearing officer stated that the District “has confirmed its
intent to use a ‘comparative analysis’ in the future, even if the
term is not included in written postings. In effect, [AFSCME] is
seeking declaratory relief.”
      Despite the absence of a justiciable controversy, the
hearing officer provided a declaratory judgment regarding the
language of the MOU. Specifically, the hearing officer
interpreted section 5.2.1 D as “referring to objective employment
performance assessments, such as the testing of physical
capabilities and skills spelled out in this provision.” Based on its
interpretation of the MOU, the hearing officer sustained
AFSCME’s grievance.
      As a remedy, the trial court directed the District to: “cease
and desist from the use of posting language or a recruitment
procedure that provides, prior to an interview, for a comparative
analysis permitting only those candidates demonstrating the
strongest backgrounds to participate in written testing or oral
panel interviews.”
The District’s petition for review
      On May 20, 2015, the District filed a petition for writ of
administrative mandamus pursuant to Code of Civil Procedure
section 1094.5. The District sought to set aside the hearing




                                 12
officer’s decision on the ground that the hearing officer failed to
proceed in a manner required by law. Specifically, the District
argued, among other things, that: (1) the grievance did not
present a controversy ripe for decision; (2) the hearing officer’s
decision exceeded the scope of the stipulated issue before him; (3)
the remedy imposed by the hearing officer violated section 6.7.6.A
of the MOU by modifying the terms and conditions of the MOU;
(4) the decision unlawfully usurped the District’s authority to
determine the procedures and standards of selection for
employment, promotion and transfer; and (5) the hearing officer
improperly relied on extrinsic evidence since there was no
ambiguity that could not be resolved by analyzing the plain
language of the relevant documents. The District also argued
that the hearing officer committed a prejudicial abuse of
discretion in that his findings were not supported by substantial
evidence. The District asked that a writ of mandate issue,
directing the hearing officer to set aside the decision.
The trial court decision
       On May 17, 2016, the trial court granted the District’s
petition.
       The trial court found that the issue presented to the
hearing officer was not ripe for decision. Specifically, the trial
court ruled:
              “Based on the foregoing, the issue of whether
       any form of comparative analysis utilized prior to an
       interview violated the MOU was not ripe. The
       Hearing Examiner thus exceeded the scope of the
       issue presented in crafting the remedy which would
       pertain to future action by Petitioner. And, to the
       extent the Hearing Officer reached his decision that
       all forms of future comparative analysis utilized prior
       to an interview would violate the side letter, there is
       not substantial evidence in the record to support his
       conclusion.” (Fn. omitted.)




                                13
       In response to AFSCME’s argument that the hearing officer
had the authority to fashion a remedy that resolved the issue
presented, the trial court stated, “In the instant case, the issue
presented was whether the comparative analysis for a specific job
posting violated the MOU and, if so, what remedy was
appropriate. The Hearing Examiner went beyond this issue in
his ruling.”
       The trial court directed the hearing officer to set aside his
decision and render a new decision consistent with the opinion.
       On August 11, 2016, AFSCME filed its notice of appeal.
                           DISCUSSION
I. Standard of review
       It is undisputed that this case does not affect a
fundamental right. In reviewing a petition for writ of mandate in
a case that does not affect a fundamental right, the appellate
court generally reviews the administrative decision, not the trial
court decision, and considers only whether “‘the administrative
agency committed a prejudicial abuse of discretion by examining
whether the findings support the agency’s decision and whether
substantial evidence supports the findings in light of the whole
record.’” (Young v. City of Coronado (2017) 10 Cal.App.5th 408,
418, fn. omitted.)
       However, the trial court decision in this matter was based
on a question of law: whether or not the issue before the hearing
officer was ripe for review. This is the issue which AFSCME
presently appeals. The question of whether a claim presents a
controversy that is ripe for review is a question of law, subject to
de novo review. (Wilson & Wilson v. City Council of Redwood
City (2011) 191 Cal.App.4th 1559, 1582 (Wilson).)
       To the extent that we review the hearing officer’s
interpretation of the MOU and side letter, we exercise
independent judgment. (American Indian Model Schools v.




                                14
Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 286;
see also National City Police Officers’ Assn. v. City of National
City (2001) 87 Cal.App.4th 1274, 1278 [“Because MOUs are
binding agreements between local agencies and designated
employee representatives, when the meaning of an MOU is in
dispute we apply de novo review, exercising our independent
judgment”].)
II. AFSCME has not presented a ripe controversy
       A. Applicable legal principles
       “‘[A]n action not founded upon an actual controversy
between the parties to it, and brought for the purpose of securing
a determination of a point of law . . . will not be entertained.’
[Citation.]” (City of Santa Monica v. Stewart (2005) 126
Cal.App.4th 43, 59.) A controversy becomes “‘ripe’” when “‘the
facts have sufficiently congealed to permit an intelligent and
useful decision to be made.’ [Citation.]” (Ibid.)
       A ripeness inquiry involves a two-step analysis: first,
whether the issue is appropriate for immediate judicial
resolution; and second, whether the complaining party will suffer
a hardship from a refusal to entertain its legal challenge.
(Wilson, supra, 191 Cal.App.4th at pp. 1582-1584.)
       Under the first test, “‘courts will decline to adjudicate a
dispute if “the abstract posture of the proceeding makes it
difficult to evaluate . . . the issues” [citation], if the court is asked
to speculate on the resolution of hypothetical situations [citation],
or if the case presents a “contrived inquiry” [citation].’
[Citation.]” (Wilson, supra, 191 Cal.App.4th at pp. 1582-1583.)
       Under the second test, courts generally will not consider
issues based on speculative future harm. (Wilson, supra, 191
Cal.App.4th at pp. 1584-1585.) This is particularly true where
the complaining party will have the opportunity to pursue




                                   15
appropriate legal remedies should the anticipated harm ever
materialize. (Id. at p. 1585.)
      The MOU between the parties also contains a ripeness
requirement, as it mandates that a “grievance” must be an
alleged “misapplication of a specific provision” of the MOU or
related rules, which “adversely affects the grievant.”
      B. Application to this case
      In the present matter, the parties stipulated that their
dispute involved the following issue:
             “Did [the District] violate MOU section 5.2 and
      the [side letter] by including the following selection
      procedure in Job Posting 3533719: ‘Based on a
      comparative analysis, only those candidates
      demonstrating the strongest backgrounds will be
      invited to participate in a written test and oral panel
      interview?’ If so, what is the appropriate remedy?”

       Thus, the issue was framed as a question of whether the
District violated the MOU and side letter agreement in a
particular job posting. As the hearing officer and the parties
acknowledged, the only union applicant for job posting 3533719
did not meet the minimum requirements for that job posting.
       Thus, under the first prong of the ripeness test, there was
no actual controversy. Instead, the hearing officer was asked to
speculate on the resolution of the hypothetical situation where a
union applicant, meeting minimum requirements for the position,
is subject to the comparative analysis procedure. Under the
circumstances, “‘[t]he only declaratory judgment that could be
rendered under the allegations of the complaint would be of an
advisory nature . . . .’ [Citation.]” (Wilson, supra, 191
Cal.App.4th at p. 1584.) The abstract nature of the claim makes
it too uncertain to constitute a justiciable controversy. (Id. at p.
1583.) That the District said it would continue to apply




                                16
comparative analysis in the future does not render the effect of
doing so any less speculative.
      Further, AFSCME will not suffer an actual hardship for a
refusal to entertain its claim that the District may potentially in
the future utilize the comparative analysis procedure to screen
out internal candidates meeting the minimum requirements for a
future job posting. In the event that such a situation arises,
AFSCME may then utilize the grievance procedure to resolve the
controversy.
      We reject AFSCME’s claim that the District waived its
ripeness argument. The stipulation between the parties
regarding the facts of the underlying grievance were entered into
at the hearing before the hearing officer. The District timely
argued to the hearing officer, both in its opening statement and
post-hearing brief, that the matter was not ripe for decision. The
District thus properly and timely raised the issue before the
hearing officer.2


2     Further, we find that the District was not required to
challenge the appealability of the issue pursuant to section 6.7.1
E of the MOU. That provision applies when “there is a dispute as
to whether an issue is appealable to a Hearing Officer.” Here,
there was no dispute as to the appealability of AFSCME’s
grievance. The previous steps of the grievance procedure had
been fulfilled and the parties were properly at the appeal stage.
AFSCME provides no legal authority for its suggestion that the
District was required to raise the ripeness issue under Section
6.7.1 E of the MOU, rather than at the hearing.
      We further reject AFSCME’s speculative argument that the
District “clearly was aware of these facts prior to the hearing.”
AFSCME appears to suggest that the District learned of the facts
relevant to ripeness significantly earlier than the hearing, such
that the District should be held to have forfeited the argument.
AFSCME points to no evidence suggesting that the District
learned of those facts significantly earlier than the date of the




                                17
III. The hearing officer exceeded his authority by
rendering a decision beyond the scope of the issue before
him
       The hearing officer went beyond the scope of the issue
before him in ordering the District to “cease and desist from the
use of posting language or a recruitment procedure that provides,
prior to an interview, for a comparative analysis permitting only
those candidates demonstrating the strongest backgrounds to
participate in written testing or oral panel interviews.”
       The MOU specifies that a hearing officer’s role is “limited”
to hearing “the written grievance as originally filed by the
employee to the extent that said grievance has not been
satisfactorily resolved.” Although the original grievance alleged
that the “comparative analysis” procedure had been used in
“some job postings,” on appeal the parties narrowed the issue to a
single job posting. The issue before the hearing officer was
limited to the District’s use of language in job posting 3533719.
Nevertheless, the hearing officer directed the District to cease
using all forms of comparative analysis prior to an interview in
future job recruitments.
       Regardless of whether the grievance involved multiple job
postings or the single job posting, the MOU does not allow a
hearing officer to provide broad declaratory relief. In providing
declaratory relief as to all future job postings, the hearing officer
went beyond the scope of the grievance before him and thus
exceeded his authority.


hearing. Nor does AFSCME provide any legal or contractual
authority for its position that, even if the District had learned of
those facts significantly earlier, the District was required to raise
the issue of ripeness in a challenge to the “appealability” of the
matter. The issue of ripeness was promptly and properly raised
before the hearing officer, and was not forfeited.




                                 18
IV. The hearing officer exceeded his authority by
modifying the terms and conditions of the MOU
       AFSCME insists that “it was clear that the dispute
concerned the District’s use of comparative analysis at all, not its
use in a specific job posting.” Even if the issue before the hearing
officer had concerned the general use of the comparative analysis
procedure, the broad decision by the hearing officer was
erroneous because it violated the MOU’s mandate that the
decision of the hearing officer “shall not add to, subtract from, or
otherwise modify the terms and conditions of [the] MOU.”
       Accepting the District’s definition of “comparative analysis”
as a “review of records,” the procedure was expressly authorized
by the MOU for use as a testing method for internal applicants
meeting the minimum requirements for a position.3
     The language of the relevant documents reveals this
authorization. First, the side letter provides that “‘All candidates
meeting the Minimum Requirements for a position shall be
allowed to compete in the examination process.’”4 The term

3     The hearing officer did not make a specific finding as to
what the term “comparative analysis” means. However, the
hearing officer appeared to accept the District’s position that a
“comparative analysis” was a “review of records.” AFSCME also
concedes that the procedure was sufficiently well-defined in the
proceedings as “an employment test, a review of records.”

4      The side letter does not provide that internal applicants
may participate in all portions of the examination process if they
meet the minimum requirements, as AFSCME suggests.
Further, it does not provide that internal applicants
“automatically proceed to any written or technical employment
tests and then an interview.” AFSCME has inserted these
various exaggerated descriptions of the language of the side letter
throughout its briefs, although such language is not found in the
side letter itself.




                                19
“examination process” is not defined. However, as set forth in
section 5.2.1 D of the MOU, the “testing” used for a hiring
decision includes, but is not limited to, “a review of records,
interview, typing, computer skills, basic skills, job knowledge,
work sample or other demonstration tests deemed reliable and
job-related as approved by the Human Resources Group
Manager.” (Italics added.) Thus, pursuant to the plain language
of the governing documents, to the extent that a “comparative
analysis” consists of a “review of records,” it is expressly
authorized by the MOU as a type of test that may be used “as a
basis for any employment decision.” Comparative analysis is
therefore a permitted part of the examination process.5
       The hearing officer cited evidence that the “comparative
analysis” language had been used in job postings going back to
2005. In those postings, however, “the reference to a comparative
analysis of candidates demonstrating the strongest backgrounds
was subject to use of an asterisk.” The text following the asterisk
stated that “‘[District] policy provides for all internal applicants
to participate in all portions of the examination process if they
meet the minimum requirements.’” At some point in 2012, the
asterisk was dropped. A District representative explained that
the dropping of the asterisk “appears to have been linked to the
District’s development of codes for an online recruitment
process.” There was no evidence before the hearing officer that
the dropping of the asterisk had actually affected the recruitment
or hiring process as to any internal candidate.
       The evidence thus showed that the District had been using
the comparative analysis method for nearly 10 years. The
District represented at the hearing its intention that “‘the

5      Neither the MOU nor the side letter contains any
restrictions on the timing of such a review of records, requiring
that it take place only after other written tests or oral interviews.




                                 20
practice [of comparative analysis] will continue as an
employment test.’” The practice of comparative analysis,
understood as a review of records, is an authorized employment
test under the MOU. The hearing officer’s determination that
the procedure must not be used in any form in future job
recruitment and hiring decisions, prior to imposition of a written
test or oral interview, constituted an unauthorized modification
of the terms of the MOU.6
       In sum, under the circumstances of this case, the hearing
officer’s decision improperly modified the terms and conditions of
the MOU, which allow for the use of a comparative analysis, or
“review of records,” as part of the examination process. In the
absence of evidence that the removal of the asterisk negatively
affected the recruitment procedure as to any internal applicant,
the decision exceeded the hearing officer’s authority.
V. The trial court did not err in denying AFSCME’s
attempt to introduce extra-record evidence
       AFSCME argues that the trial court erroneously denied its
attempt to bring before the court extra-record evidence of the

6     The trial court took issue with the hearing officer’s broad
denunciation of the “comparative analysis” procedure on the
ground that “[t]he evidentiary record does not include sufficient
evidence for the Hearing Officer to make a determination as to
whether all forms of comparative analysis would violate the MOU
and side letter, or whether the District’s use of ‘comparative
analysis’ in the future will violate the MOU and side letter.”
AFSCME contends there was never any dispute as to any other
“forms” of the comparative analysis test. Instead, AFSCME
frames the question as a broad inquiry as to whether “the District
had added a new layer of testing unrecognized by the MOU, not
how the procedure was applied in one instance.” As set forth
above, the evidence before the hearing officer showed that the
comparative analysis procedure was not a “new layer of testing,”
but in fact had been part of the process for many years.




                                21
hearing officer’s expertise. AFSCME did this by way of a
declaration in support of AFSCME’s opposition to the writ of
administrative mandate. The declaration, filed concurrently with
AFSCME’s opposition to the writ, attached three documents:
Hearing Officer Barry Winograd’s “Labor Arbitration Resume,”
dated October 2014; a faculty profile webpage for Mr. Winograd
from Berkeley Law (Boalt Hall, University of California); and the
LinkedIn page of Mr. Winograd. The trial court construed this
submission as a motion to augment the administrative record.
      Code of Civil Procedure section 1094.5, subdivision (e)
provides:
            “Where the court finds that there is relevant
      evidence that, in the exercise of reasonable diligence,
      could not have been produced or that was improperly
      excluded at the hearing before respondent, it may
      enter judgment as provided in subdivision (f)
      remanding the case to be reconsidered in light of that
      evidence; or, in cases in which the court is authorized
      by law to exercise its independent judgment on the
      evidence, the court may admit the evidence at the
      hearing on the writ without remanding the case.”

      The court found that AFSCME submitted the extra-record
evidence without making the required showing of reasonable
diligence or relevance. In addition, at least two of the documents
pre-dated the hearing and AFSCME made no showing that the
documents could not have been submitted at the hearing in the
exercise of reasonable diligence.
      Extra-record evidence is not admissible on a petition for
writ of administrative mandate absent a showing that the
evidence could not have been produced or was improperly
excluded at the hearing. (Fairfield v. Superior Court of Solano
County (1975) 14 Cal.3d 768, 771-772). AFSCME did not attempt
to show that the evidence submitted with its opposition fit within




                               22
this “limitation on the admission of post-administrative
evidence.” (Id. at p. 772.) Thus, the trial court did not err in
denying AFSCME’s motion to augment the administrative record.
                           DISPOSITION
       The trial court’s decision granting the District’s writ of
administrative mandate under Code of Civil Procedure section
1094.5 is affirmed. The District is awarded its costs of appeal.




                             ____________________________, J.
                             CHAVEZ

We concur:


__________________________, P. J.
LUI


__________________________, J.
HOFFSTADT




                                 23
Filed 6/21/18
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
           SECOND APPELLATE DISTRICT
                  DIVISION TWO

THE METROPOLITAN WATER                        B276898
DISTRICT OF SOUTHERN
CALIFORNIA,                                   (Los Angeles County
                                              Super. Ct. No. BS155355)
                Plaintiff and Respondent,
                                              ORDER FOR PUBLICATION
       v.

BARRY WINOGRAD,

                Defendant;

AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES,
LOCAL 1902, AFL/CIO,

                Real Party in Interest and
Appellant.




THE COURT:*
       The opinion in the above entitled matter filed on May 23,
2018, was not certified for publication.
       For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.


                                                            __
*LUI, P. J., CHAVEZ, J., HOFFSTADT, J.




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