Filed 6/27/17
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


PAULO MORGADO,
        Plaintiff and Respondent,
                                                   A141681
v.
CITY AND COUNTY OF SAN                             (San Francisco City & County
FRANCISCO et al.,                                  Super. Ct. No. CGC 12–518287)
        Defendants and Appellants.


        Government Code1 section 3304, subdivision (b), which is part of the Public
Safety Officers Procedural Bill of Rights Act (PSOPBRA) (§ 3300 et seq.), provides that
“[n]o punitive action . . . shall be undertaken by any public agency against any public
safety officer . . . without providing the public safety officer with an opportunity for
administrative appeal.”
        In this appeal, the City and County of San Francisco (City) seeks review of the
trial court’s order granting injunctive relief to Paulo Morgado (Morgado), a non-
probationary City police officer whose employment was terminated following
misconduct findings. The City argues the court erred in finding the City’s procedure for
disciplining police officers violates section 3304, subdivision (b).
        We disagree and will affirm.
                                     I. BACKGROUND
        On or about March 1, 2008, a citizen with whom Morgado interacted filed a
complaint against him with the Office of Citizen Complaints (OCC) of the City’s Police


        1
            All undesignated statutory references are to the Government Code.

                                               1
Department.2 Pursuant to its powers granted by the City Charter (see S.F. Charter,
§ 4.127), the OCC investigated the alleged misconduct and shared its findings and
disciplinary recommendations with the chief of police (Chief). After further investigation
by the department’s internal affairs division, the Chief filed a disciplinary complaint with
the City’s Police Commission (Commission) against Morgado in August 2009.3
       The Commission assigned one of its seven members to investigate the complaint,
first on August 28, 2009, and then, after that commissioner stepped down, another on
June 8, 2010. That commissioner held a full evidentiary hearing on August 2 and 3,
2010, in which Morgado participated. Later, on March 30, 2011, Morgado, represented
by counsel, participated in a hearing before the full Commission, at the conclusion of
which the Commission sustained four of the six counts against him and decided to
terminate his employment.
       Dissatisfied with the Commission’s decision, on February 16, 2012, Morgado sued
the City, the OCC, the Chief, and the Commission, seeking injunctive relief and a writ of
administrative mandate to direct the defendants to reinstate him. Responding to a
discovery request by Morgado, the City “admit[ted],” as a factual matter, the “only
punitive action undertaken against him” was the Commission’s decision “to terminate
[his] employment.” The City further “admit[ted],” as a factual matter, it did not provide
Morgado with an “administrative appeal” from the Commission’s decision to terminate
his employment. After the trial court denied the City’s motion for summary judgment in
October 2013, the case proceeded to a bench trial.
       The court issued a written statement of decision and entered judgment in favor of
Morgado on February 26, 2014. Relying on sections 3304, subdivision (b) (requiring “an
opportunity for administrative appeal”) and 3309.5, subdivision (d)(1) (giving the trial


       2
        The OCC is now the Department of Police Accountability. (See S.F. Prop. G,
adopted Nov. 8, 2016, adding S.F. Charter, § 4.136 and amending id., § 4.127.)
       3
        Pursuant to section A8.343 of the Appendix to the City Charter, the Chief can
impose a disciplinary suspension up to 10 days (from which the officer may appeal to the
Commission) or file a complaint with the Commission for harsher sanctions.


                                             2
court discretion to grant injunctive relief), and pertinent case law, the court issued an
order (1) enjoining the Commission “from taking any punitive action against Morgado
pursuant to the complaint . . . unless the Officer has first been provided an opportunity for
administrative appeal from that action,” (2) vacating his termination, and (3) directing the
City to provide him an “opportunity for administrative appeal” from the Commission’s
decision to terminate his employment. The court specifically noted it was “not changing
any other findings made by the Police Commission.”
       The City filed a timely notice of appeal.
                                     II. DISCUSSION
       A. Standard of Review
       We review questions of statutory interpretation de novo. (See California
Apartment Assn. v. City of Fremont (2002) 97 Cal.App.4th 693, 699.) The rules of
statutory construction are well-settled: “we are to ascertain the intent of the Legislature so
as to effectuate the purpose of the law,” first by looking to the plain text, “giving effect to
the ordinary meaning of the words employed,” and considering the language within the
context of the entire statutory scheme. (Id. at pp. 699–700.) In construing the statutory
language, “we consider matters such as ‘ “ ‘the object in view, the evils to be remedied,
the history of the times and of legislation upon the same subject, public policy, and
contemporaneous construction.’ ” ’ ” (Id. at p. 700.)
       At the heart of this appeal is whether a “punitive action” was taken against
Morgado, and if so, when that action took place. The City admitted during discovery that
the “first and only ‘punitive action’ ” here was the Commission’s decision to terminate
Morgado’s employment. We view this issue as a mixed question of fact and law. (See
Crocker National Bank v. City & County of San Francisco (1989) 49 Cal.3d 881, 888
[“Mixed questions of law and fact concern the application of the rule to the facts and the
consequent determination whether the rule is satisfied. If the pertinent inquiry requires
application of experience with human affairs, the question is predominantly factual and
its determination is reviewed under the substantial-evidence test. If, by contrast, the
inquiry requires a critical consideration, in a factual context, of legal principles and their


                                               3
underlying values, the question is predominantly legal and its determination is reviewed
independently.” (Italics added.)]; cf. Turturici v. City of Redwood City (1987) 190
Cal.App.3d 1447, 1449–1450 [applying, in effect, de novo review to determine whether
disputed action constitutes “punitive action” for purposes of the PSOPBRA].) Any
admissions made by the City on the question are not binding on us, since we must make
our own independent determination in the course of our de novo review.
       B. The PSOPBRA “Administrative Appeal” Requirement
       Four decades ago, the Legislature enacted the PSOPBRA “ ‘to maintain stable
employer-employee relations and thereby assure effective law enforcement.’ ”
(Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572.) “The
Act requires that law enforcement agencies throughout the state afford minimum
procedural rights to their peace officer employees.” (Ibid., fn. omitted; accord, Baggett v.
Gates (1982) 32 Cal.3d 128, 135 (Baggett); Quezeda v. City of Los Angeles (2014) 222
Cal.App.4th 993, 1003; see also § 3301 [declaring legislative findings to the same
effect].) A public agency may, of course, provide police officers more than what is
required in the statute, so long as, at “a minimum[,] [the agency] provides to [them] the
same rights or protections as provided pursuant to [the PSOPBRA] . . . with regard to
such a procedure.” (§ 3310; see also Runyan v. Ellis (1995) 40 Cal.App.4th 961, 967.)
       Subdivision (b) of section 3304 provides, in relevant part, that “[n]o punitive
action . . . shall be undertaken by any public agency against any public safety officer . . .
without providing the public safety officer with an opportunity for administrative
appeal.” Section 3304.5 further provides that “[a]n administrative appeal instituted by a
public safety officer under [the PSOPBRA] shall be conducted in conformance with the
rules and procedures adopted by the local public agency.” Section 3303, in turn, defines
“punitive action” as “any action that may lead to dismissal, demotion, suspension,
reduction in salary, written reprimand, or transfer for purposes of punishment.”
       The purpose of the administrative appeal requirement is “to ensure a peace officer
subjected to punitive action has the ‘opportunity “to establish a formal record of the
circumstance surrounding his termination” [citation] and “to attempt to convince the


                                              4
employing agency to reverse its decision, either by demonstrating the falsity of charges
which led to punitive action, or through proof of mitigating circumstances.” ’ ”
(San Diego Police Officers Assn. v. City of San Diego Civil Service Com. (2002) 104
Cal.App.4th 275, 280, italics added.) Section 3304 “does not specify how the appeal
process is to be implemented”; instead, “[t]he details of administrative appeal under
section 3304, subdivision (b) are left to be formulated by the local agency.” (Binkley v.
City of Long Beach (1993) 16 Cal.App.4th 1795, 1806.) But courts have concluded that,
“[a]t minimum, section 3304 requires that a peace officer receive an evidentiary hearing
before a neutral fact finder to challenge the punitive action.” (Gordon v. Horsley (2001)
86 Cal. App. 4th 336, 347; accord, Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1329.)
       The City argues the proceedings against Morgado complied with the “letter and
the intent” of the “administrative appeal” requirement under section 3304, subdivision
(b), because “the Commission proceeding is the appeal that [PSOPBRA] requires the
City to make available before ‘undertaking’ the disciplinary action sought by the Chief
and/or the OCC.” (Italics added.) And, the City argues, the first “punitive action” was
not, as the trial court found, the Commission’s decision to terminate Morgado’s
employment, but rather was “the Chief’s complaint.” Morgado and amicus curiae, the
San Francisco Police Officers Association, disagree, arguing the City failed to provide an
“administrative appeal from the first and only punitive action taken against him, i.e., the
Commission’s termination decision.”
       As noted, the City takes the position that the Chief’s complaint to the Commission
constituted a “punitive action” under section 3304, subdivision (b), and that, as a result,
the Commission’s proceedings constituted an “appeal” from that “punitive action.” We
agree with the City that an action by an officer’s employer that may lead to future
discipline may be considered a “punitive action” within the meaning of section 3304,
subdivision (b). Section 3303 provides that “punitive action means any action that may
lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment.” (Italics added.) Accordingly, a punitive action
triggering an officer’s administrative appeal rights may exist when “action is taken which


                                              5
may lead to the adverse consequences specified in section 3303 at some future time.”
(Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 996.) For example,
written documentation that criticizes an officer’s conduct or warns that such conduct will
lead to future disciplinary action may constitute a punitive action. (E.g., id. at p. 998
[warning that continued misconduct could lead to future disciplinary action]; Caloca v.
County of San Diego (1999) 72 Cal.App.4th 1209, 1222–1223 [written report sustaining
findings of misconduct]; see Los Angeles Police Protective League v. City of Los Angeles
(2014) 232 Cal.App.4th 136, 145–146.)
       We have no quarrel with the general proposition that, when an action taken by an
officer’s employer is not one of the sanctions listed in section 3303 but “may lead” in the
future to one of the consequences specified in that statute, that action is a punitive action
triggering an officer’s right to an administrative appeal under section 3304,
subdivision (b). But in our view, it does not necessarily follow that, where an interim
step in a disciplinary proceeding against an officer (such as a recommendation that
further proceedings be conducted) “may lead” to discipline at the end of that proceeding,
a public entity satisfies section 3304, subdivision (b) by permitting the officer to
administratively challenge only the interim step and providing him or her no opportunity
to challenge the discipline that is ultimately imposed.
       Thus, although we agree with the City that an action portending future discipline
may constitute a punitive action triggering an officer’s appeal rights, we do not agree
with its conclusion that therefore an officer need not be given an opportunity to
administratively appeal a subsequent decision to impose discipline (reached here by the
Commission). Even if the Chief’s complaint constituted a “punitive action,” Morgado’s
termination was itself a “punitive action” under the statute, from which he has the right to
“an opportunity for administrative appeal.” (§ 3304, subd. (b); see § 3303; Gordon v.
Horsley, supra, 86 Cal.App.4th at p. 347 [“ ‘[D]ismissal, demotion, suspension, reduction
in salary or written reprimand are considered per se punitive, without regard to the
motivations for those actions.’ ” (Italics added.)]; San Diego Police Officers Assn. v. City
of San Diego Civil Service Com., supra, 104 Cal.App.4th at p. 280 [“The Legislature


                                              6
enacted this code section to ensure a peace officer subjected to punitive action has ‘the
opportunity “to establish a formal record of the circumstance surrounding his
termination” [citation] and “to attempt to convince the employing agency to reverse its
decision, either by demonstrating the falsity of charges which led to punitive action, or
through proof of mitigating circumstances.” ’ ” (Italics added.)].) Here, Morgado had no
opportunity to attempt to convince the City to reverse its decision to terminate him,
because no further administrative proceedings occurred after the Commission made that
decision.4
       An interpretation of the term “administrative appeal” that permits an officer to
challenge the decision to discipline him (rather than permitting him to challenge only a
complaint or recommendation made earlier in the disciplinary process, while denying him
the right to challenge the actual decision) also is consistent with a conventional
understanding of an “administrative appeal.” (See Doyle, supra, 117 Cal.App.3d at
p. 679 [“It is generally accepted that an administrative appeal provides for an independent
re-examination of an order or decision made. [Citations.] Similarly, an administrative
appeal may also be taken from notice of a decision or order prior to its actual date of
implementation in certain situations. [Citation.] Obviously, a decision to terminate an
officer’s employment, whether implemented yet or not, constitutes punitive action.”].)
       In support of its argument that the Commission’s proceedings constitute an
“opportunity for administrative appeal” (even though they preceded the decision to
terminate Morgado), the City cites Mays v. City of Los Angeles (2008) 43 Cal.4th 313
(Mays), and Crupi v. City of Los Angeles (1990) 219 Cal.App.3d 1111 (Crupi).


       4
         In Doyle v. City of Chino (1981) 117 Cal.App.3d 673, 679–681 (Doyle), the
appellate court rejected a police chief’s contention that he was entitled to an appeal
before any decision to discipline him had been reached. The appellate court held the
right to appeal does not arise until a decision to impose discipline is made. (Id. at
pp. 679–680.) In White v. County of Sacramento (1982) 31 Cal.3d 676, 684, fn. 6, the
Supreme Court noted the Doyle court’s holding, but did not address (because the parties
in White had not raised it) “the question of the ‘timing’ of the ‘opportunity for
administrative appeal’ provided by section 3304, subdivision (b).”


                                             7
       Mays was an appeal following the issuance of a letter of reprimand to a Los
Angeles police officer by the chief of police and an administrative appeal from that
reprimand initiated by the officer. (Mays, supra, 43 Cal.4th at pp. 318–319.) The issue
on appeal in the Mays action was whether section 3304, subdivision (d) requires a public
employer to give notice of the specific proposed punishment for the charged misconduct
to be within the PSOPBRA statute of limitations. The California Supreme Court held
that it did not.5 (Mays, supra, at pp. 321–322, 325.) In so holding, the Supreme Court
discussed the “opportunity for administrative appeal” requirement of section 3304,
subdivision (b), but only to illustrate that, from a timing standpoint, the review
mechanism a city provides—which the Court observed may be provided “locally,” such
as by collective bargaining agreement—does not dictate that the statute of limitations
period must run from the notice of some specific form of discipline. (Mays, supra, 43
Cal.4th at p. 323 [“There is no indication in the statute that the local mechanism cannot
provide for a determination of the precise discipline at a hearing occurring subsequent to
the notification envisioned by section 3304(d).”].) Mays does not address the question
before us, which is whether a particular disciplinary procedure complies with section
3304, subdivision (b).
       Nor does Crupi support the City’s position here. In that case, an officer-involved
shooting was referred to the Los Angeles Police Department’s use of force review board
and the officer-involved shooting section of the department’s robbery/homicide division.
Utilizing a report by the robbery/homicide division, the use of force review board
classified the shooting as being “ ‘out of policy’ ” and recommended “administrative
disapproval.” (Crupi, supra, 219 Cal.App.3d at p. 1114 & fn. 2.) The Los Angeles Chief
of Police subsequently adopted the use of force review board report and submitted his
findings to the police commission. The officer was notified that the proposed disposition

       5
         The current version of section 3304, subdivision (d), which was amended after
the Mays decision, does require notice of the proposed discipline. (§ 3304, subd. (d)(1);
see Neves v. California Dept. of Corrections & Rehabilitation (2012) 203 Cal.App.4th
61, 68, fn. 3 [discussing the change].)


                                              8
was for “the charges to be sustained and the matter adjudicated by a board of rights” and
was, at that point, provided copies of the use of force report, the formal findings of the
chief of police which had been provided to the police commission, and the
robbery/homicide division report. (Id. at p. 1115.) The officer was suspended without
pay pending the board of rights hearing. (Ibid.) Before a board of rights hearing
commenced, however, the officer filed a lawsuit which formed the basis of the Crupi
appeal. (Id. at pp. 1115–1116.) The officer claimed in part that “ ‘[t]he police chief, in
adopting the findings of the Review Board, generated a report to the Police Commission
which was not released to [him], thus depriving him of an administrative appeal.’ ” (Id.
at p. 1120.) In rejecting that argument, the Crupi court appeared to assume the Chief’s
adoption of the review board’s findings constituted a punitive action triggering a right of
appeal, but was not called upon to address that question. (Id. at pp. 1120–1121.) The
Crupi court held the board of rights review process provided the officer “an
administrative appeal through which he could attack the accuracy of the subject report”
that included adverse findings about his actions. (Id. at p. 1120.)
       The City’s reading of both Mays and Crupi is that those courts implicitly
recognized that any adjudication following an officer’s first exposure to punitive action in
an investigation may be deemed an appeal. The premise of this interpretation,
however—which is the flaw running throughout its argument here—is its failure to
recognize there may be multiple steps in a disciplinary process that amount to “punitive
actions” triggering the right to appeal. As we have discussed, the final step here, the
Commission’s decision to terminate Morgado, was such an action. Neither Mays nor
Crupi holds that, because a municipality provides an appeal from punitive actions taken
early in the disciplinary process, the municipality is excused from providing an appeal
from a later punitive action (here, the ultimate sanction of dismissal).6 The City reads far
more into these two cases than their holdings will bear.

       6
        We do not hold a municipality must provide multiple administrative appeals
during a single disciplinary proceeding against an officer. We hold only that the
provision of a hearing that could be considered an administrative appeal, in the middle of

                                              9
       At oral argument, counsel for the City argued the decision in Holcomb v. City of
Los Angeles (1989) 210 Cal.App.3d 1560 (Holcomb) supports its position that the
Commission proceeding satisfies the “opportunity for administrative appeal” requirement
in section 3304, subdivision (b). In Holcomb, the Los Angeles Chief of Police suspended
the officer for five days, and the officer requested a hearing before a board of rights.
(Holcomb, supra, 210 Cal.App.3d at p. 1562.) After a hearing, the board of rights
determined the officer’s punishment should instead be a longer, 15-day suspension; the
chief adopted the Board’s recommendation and imposed the longer suspension. (Id. at
p. 1564.) The officer sought review in the trial court, arguing the lengthened suspension
was an illegal attempt to punish him for seeking administrative review of the initial
disciplinary decision. (Ibid.) The trial court agreed that the increased punishment
violated due process, but the appellate court reversed. (Id. at pp. 1564, 1569.)
       The appellate court in Holcomb noted that the Los Angeles City Charter expressly
authorized the board of rights to recommend a more serious punishment than the one
originally imposed. (Holcomb, supra, 210 Cal.App.3d at p. 1566.) The officer thus “was
on notice the Board of Rights hearing could possibly result in a greater punishment
depending upon the Board’s evaluation of the seriousness of the offense and his
personnel record.” (Ibid.) The appellate court then held this charter provision did not
violate section 3304, subdivision (a), a provision of the PSOPBRA that prohibits
punishment of officers for exercising their administrative rights.7 (Holcomb, supra, 210
Cal.App.3d at pp. 1566–1568.) In the course of analyzing this question, the Holcomb
court first determined the PSOPBRA applied to the situation before it, concluding that
(1) the initial five-day suspension was a punitive action within the meaning of the

the disciplinary proceeding, does not excuse the municipality from providing the officer
an opportunity to administratively appeal the ultimate disciplinary decision at the end of
it.
       7
        Section 3304, subdivision (a) provides in part: “No public safety officer shall be
subjected to punitive action, or denied promotion, or be threatened with any such
treatment, because of the lawful exercise of the rights granted under this chapter, or the
exercise of any rights under any existing administrative grievance procedure.”


                                             10
PSOPBRA, and (2) since requesting a board of rights hearing was “the only process
available to [the officer] at that juncture to challenge the discipline,” that hearing “was,
within the context of this case, the required administrative appeal.” (Holcomb, supra,
210 Cal.App.3d at p. 1567.) The appellate court then concluded that the subsequent
imposition of a longer suspension did not violate section 3304, subdivision (a), because
there was no evidence the longer suspension was imposed in retaliation for the officer’s
decision to pursue an administrative appeal of the five-day suspension; instead, the
recommendation of a longer suspension was based on evidence developed at the board of
rights hearing. (Id. at pp. 1567–1568; accord, Jackson v. City of Los Angeles (1999) 69
Cal.App.4th 769, 782–783 [once officer initiated administrative appeal before board of
rights, and the board had been constituted and convened, he could not withdraw appeal to
avoid imposition of more severe discipline than the sanction originally imposed].)
       We are not persuaded that Holcomb brings the City’s procedure at issue here into
compliance with the administrative appeal requirement in section 3304, subdivision (b).
As noted, the Holcomb court concluded a hearing that follows the imposition of some
level of punishment but could result in a change in the originally-imposed punishment
constituted an administrative appeal, and the increased punishment did not violate section
3304, subdivision (a)’s prohibition on retaliation. Assuming that is correct, Holcomb did
not address whether the administrative appeal requirement of section 3304,
subdivision (b) is satisfied by a hearing that precedes the employer’s selection or
imposition of any specific disciplinary sanction. For the reasons discussed above, we
conclude the City’s procedure, in which the Commission hearing precedes any such
decision by the City as to which punishment to impose, does not satisfy the
administrative appeal requirement, because there is no opportunity for the officer to
convince the employer to reverse the decision.
       The City acknowledges it did not provide Morgado an “opportunity for
administrative appeal” from the Commission’s decision to terminate him, effectively
conceding this point. We therefore conclude a “punitive action [i.e., the Commission’s
termination decision] . . . [was] undertaken by [the City] against [Morgado] . . . without


                                              11
providing [him] with an opportunity for administrative appeal.” (§ 3304, subd. (b).)
Because the City deprived Morgado of the process he was due by statute, we must affirm
the trial court’s judgment and directive that the City comply with section 3304,
subdivision (b) by now providing Morgado “an opportunity for administrative appeal.”
(See ibid.)
       We do not hold, however, that the City must provide Morgado a second
evidentiary hearing akin to the Commission proceeding, or that such a hearing must occur
before a body that is separate from the Commission. We acknowledge courts have
concluded that an administrative appeal under the PSOPBRA must involve “ ‘an
“independent re-examination” ’ of an order or decision made,” that “the reexamination
must be conducted by someone who has not been involved in the initial determination,”
and that the independent decision maker must make factual findings that can be reviewed
by the courts. (Caloca v. County of San Diego (2002) 102 Cal.App.4th 433, 443–444;
see Gordon v. Horsley, supra, 86 Cal.App.4th at p. 347 [officer must be afforded “an
evidentiary hearing before a neutral fact finder to challenge the punitive action”].) And
as noted, courts have held that the purpose of section 3304, subdivision (b) is to afford an
officer the opportunity “ ‘ “to establish a formal record of the circumstance surrounding
his termination,” ’ ” and “ ‘ “to attempt to convince the employing agency to reverse its
decision, either by demonstrating the falsity of charges which led to punitive action, or
through proof of mitigating circumstances.” ’ ” (San Diego Police Officers Assn. v. City
of San Diego Civil Service Com., supra, 104 Cal.App.4th at p. 280.)
       The Commission proceeding fulfills some of these purposes and requirements. It
provides an opportunity for an officer to develop a formal record of the underlying events
and other circumstances surrounding the City’s disciplinary decision, and the proceeding
is an evidentiary hearing before a neutral fact finder, i.e., the Commission is not “the
individual or agency that has initiated punitive action against a peace officer” (see Caloca
v. County of San Diego, supra, 102 Cal.App.4th at p. 444). Morgado does not contend
otherwise. Where the Commission proceeding used in Morgado’s case fell short, in our
view, is that it did not provide an opportunity for the officer to convince the City to


                                             12
“reverse” its decision to terminate him, because the proceedings ended as soon as that
decision was made. To satisfy the “opportunity for administrative appeal” requirement,
the City must incorporate this element into its disciplinary procedure. Since no such
procedure is before us in this appeal, we cannot and do not address whether any specific
procedure complies with the statute.8
       C. The City’s “Home Rule” Argument
       The City next advances what it styles a “home rule” argument, viz., that the
requirement it provide an opportunity for administrative appeal could present potential
questions of a conflict between article XI, section 5 of the California Constitution and
section 3304, subdivision (b). The City notes the constitutional provision grants charter
cities the authority to regulate their police forces and “plenary authority” to provide in
their charters for the “compensation, method of appointment, qualifications, tenure of
office and removal” of their employees. (Cal. Const., art. XI, § 5, subd. (b)(1), (4).) The

       8
          In support of the argument that its procedures comply already with section 3304,
subdivision (b), the City requests that we take judicial notice of (1) provisions of the Los
Angeles City Charter setting forth procedures that are purportedly comparable to the
City’s procedures, and (2) a written statement submitted by the Los Angeles Police
Protective League in 1975 to the California Senate Judiciary Committee in support of
legislation providing procedural protections for police officers. We deferred action on
this request until resolution of the merits of the appeal, and now grant it in part and deny
it in part.
       We grant the request as to the submitted provisions of the Los Angeles City
Charter. (See Evid. Code, § 451, subd. (a) [court must take judicial notice of provisions
of charter described in Cal. Const., art. XI, §§ 3, 4 or 5, i.e., county and city charters];
Evid. Code, § 459, subd. (a).) As discussed in the text, however, we find distinguishable
the cases cited by the City that arose from disciplinary proceedings in Los Angeles.
       We deny the request for judicial notice as to the 1975 statement by the Los
Angeles Police Protective League, which the City argues is subject to discretionary notice
because it is part of the PSOPBRA’s legislative history and is relevant in assessing the
general purposes of the PSOPBRA. Barring exceptional circumstances, we will not
exercise discretion to take notice of evidence not submitted to the trial court (see Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3); in any event,
the submitted statement is not helpful to our analysis, which is based on the language of
the PSOPBRA’s provisions and case law construing those provisions and the relevant
statutory purposes.

                                             13
City argues this court should construe the PSOPBRA in a manner that will avoid any
conflict with the City’s charter provisions concerning the discipline of police officers.
The City also contends “the [administrative appeal] requirement is not reasonably related
and narrowly tailored to achieve its purpose because [the City’s] existing disciplinary
procedures afford protections that already exceed [the PSOPBRA’s] minimum
mandates.”
       Our Supreme Court has explained that, when there is an “ ‘actual conflict’ ”
between a state statute and a charter city’s enactment, and the “local matter under review
‘implicates a “municipal affair,” ’ ” the court must determine whether (1) “ ‘the subject of
the state statute is one of statewide concern,’ ” and (2) “ ‘the statute is reasonably related
[and “narrowly tailored”] to its resolution.’ ” (Johnson v. Bradley (1992) 4 Cal.4th 389,
399 (Johnson), fn. omitted, quoting California Fed. Savings & Loan Assn. v. City of Los
Angeles (1991) 54 Cal.3d 1, 16–17 (CalFed).) If these requirements are met, “ ‘then the
conflicting charter city measure ceases to be a “municipal affair” pro tanto and the
Legislature is not prohibited by article XI, section 5 [, subdivision] (a) [of the state
Constitution], from addressing the statewide dimension by its own tailored enactments.’ ”
(Johnson, supra, 4 Cal.4th at p. 399, quoting CalFed, supra, 54 Cal.3d at p. 17.)
       The latter two conditions are established here by controlling precedent. As the
City acknowledges, our Supreme Court expressly held in Baggett that the PSOPBRA
addresses a matter of statewide concern, i.e., the “maintenance of stable employment
relations between police officers and their employers.” (Baggett, supra, 32 Cal.3d at
pp. 139–140.) Baggett further establishes the PSOPBRA is reasonably related and
narrowly tailored to achieve this purpose. The Supreme Court held in Baggett that “there
is a direct, substantial connection between the rights provided by the [PSOPBRA] and the
Legislature’s asserted purpose.” (Id. at p. 140.) The court noted as an example that the
administrative appeal provided by PSOPBRA is akin to a grievance system, and stated
that such grievance systems are “highly successful devices for helping to maintain labor
peace.” (Ibid.) The Baggett court further explained that the PSOPBRA “impinges only
minimally on the specific directives” of Article XI, section 5, subdivision (b) of the


                                              14
Constitution (i.e., the provisions relied on by the City here), as the statute does not
purport to regulate officers’ compensation, tenure of office or the causes for which they
may be removed. (Id. at pp. 137–138.) Instead, the statute only affects the manner in
which officers may be removed or otherwise disciplined. (Ibid.) As a general law
seeking to assure fair labor practices, the PSOPBRA may constitutionally be applied to
charter cities, even though it “impinge[s] upon local control to a limited extent.” (Id. at
pp. 139–140.)
       As to the antecedent question whether there is an actual conflict between a state
statute and a charter city enactment, the City notes our Supreme Court’s admonition that
we should “carefully insur[e]” the conflict is a genuine one. (CalFed, supra, 54 Cal.3d at
pp. 16–17.) “To the extent difficult choices between competing claims of municipal and
state governments can be forestalled in this sensitive area of constitutional law, they
ought to be; courts can avoid making such unnecessary choices by carefully insuring that
the purported conflict is in fact a genuine one, unresolvable short of choosing between
one enactment and the other.” (Ibid.)
       We are mindful of this principle, but as discussed in part II.B above, we are
persuaded that, in this case, there is an actual conflict between section 3304,
subdivision (b)’s administrative appeal requirement on the one hand, and the City’s
disciplinary procedure on the other, specifically the City’s failure to provide Morgado an
opportunity to “ ‘ “attempt to convince the employing agency to reverse its decision” ’ ”
to terminate his employment. (San Diego Police Officers Assn. v. City of San Diego Civil
Service Com., supra, 104 Cal.App.4th at p. 280, italics added [describing purposes of
appeal requirement]; see Caloca v. County of San Diego, supra,102 Cal.App.4th at
pp. 443–444 [administrative appeal under § 3304, subd. (b) “requires ‘an “independent
re-examination” ’ of an order or decision made”]; Doyle, supra, 117 Cal.App.3d at
p. 679.) Because the City failed to provide any opportunity for a re-examination of the
decision to terminate Morgado, we reject its argument that there is no actual conflict
between state and municipal law here.



                                              15
       We also reject the City’s related contention that its procedure is valid under
section 3310, which provides a public agency need not follow a particular PSOPBRA
procedure if it establishes its own procedure that “at a minimum provides to peace
officers the same rights or protections as provided pursuant to [the PSOPBRA].”
(§ 3310; see Crupi, supra, 219 Cal.App.3d at p. 1121.) As discussed, the City’s
procedure did not provide Morgado the same rights or protections provided by the
PSOPBRA, so section 3310 does not apply.
       Finally, and despite the holding in Baggett, the City contends the PSOPBRA’s
administrative appeal requirement should not apply to the City because, in light of other
procedural protections in the City’s existing disciplinary scheme (which it contends
exceed those in some other municipalities), the appeal requirement is not “reasonably
related” or “narrowly tailored” to the statutory purpose. We disagree. An officer’s right
to an administrative appeal challenging a punitive action taken against him or her is one
of the “basic,” “minimum” rights secured by the PSOPBRA. (Baggett, supra, 32 Cal.3d
at p. 135.) We do not construe the statute or Baggett as permitting a court to exempt a
municipality from this requirement based on the asserted fairness of its disciplinary
procedure as a whole.
       In sum, as Morgado points out, the City’s “home rule” argument rests upon a
flawed premise: the City’s procedures do not meet, let alone “exceed,” the “minimum
mandates” of the PSOPBRA, because they do not allow for “an opportunity for
administrative appeal” from the “punitive action” ultimately taken against Morgado—i.e.,
his termination by the Commission. (See § 3304, subd. (b); Baggett, supra, 32 Cal.3d at
p. 135 [The PSOPBRA “is a catalogue of the minimum rights (§ 3310) the Legislature
deems necessary to secure stable employer-employee relations (§ 3301).” (Italics
added.)].) For the foregoing reasons, we reject the City’s “home rule” argument.

                                   III. DISPOSITION
       The trial court’s judgment and accompanying injunctive order are affirmed.




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                                            _________________________
                                            Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.




A141681/Morgado v. City & County of San Francisco


                                       17
A141681 – Morgado v. City & County of San Francisco

Trial Court:   San Francisco Superior Court

Trial Judge:   Hon. A James Robertson II

Counsel:

Dennis J. Herrera, City Attorney, Elizabeth Salveson, Chief Labor Attorney, Rafal
Ofierski, Deputy City Attorney, for Defendant and Appellant.

Carroll, Burdick & McDonough, Greg McLean Adam, Jonathan Yank and Jennifer S.
Stoughton for San Francisco Police Officers Association as Amicus Curiae on behalf of
Plaintiff and Respondent.

Murphy, Pearson, Bradley & Feeny, James A. Lassart and Adrian G. Driscoll for Plaintiff
and Respondent.




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