                      TO BE PUBLISHED IN THE OFFICIAL REPORTS


                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                      DANIEL E. LUNGREN

                                        Attorney General


                          ______________________________________

                  OPINION            :
                                     :          No. 93-410
                  of                 :
                                     :          AUGUST 4, 1993
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :
         CLAYTON P. ROCHE            :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________

                The Fresno Police Officers Association ("FPOA") and the Fresno Firefighters,
International Association of Firefighters Local 753 ("Local 753") have requested leave to sue the
City of Fresno in quo warranto pursuant to section 803 of the Code of Civil Procedure to test the
validity of a 1993 amendment to the Fresno City Charter which repealed the "eight-city formula"
for setting salaries of policemen and firemen in the city.

                                          DISPOSITION

                 Leave to sue is granted to test whether the 1993 amendment to the Fresno City
Charter which repealed the "eight-city formula" for setting salaries of policemen and firemen in the
city is invalid by reason of noncompliance by the city with the requirements of the Meyers-Milias-
Brown Act.

                                    STATEMENT OF FACTS

               Since the mid-1950's the Fresno City Charter has contained an "eight-city formula"
provision under which the city council is required to set the salaries for policemen and firemen based
upon the average salaries paid to their counterparts in eight designated cities in California. The
formula has been incorporated into memorandums of understanding ("MOUs") entered into between
the city and the FPOA and Local 753 pursuant to the Meyers-Milias-Brown Act (Gov. Code, §§
3500-3510; "MMBA").

               The MOUs between the city and the FPOA and Local 753 have also contained what
are termed "zipper clauses." The zipper clauses provide:

               "During the life of this Memorandum of Understanding, . . . shall either party
       desire to modify its terms or to meet and confer as to matters within the scope of
       representation not addressed in the Memorandum of Understanding, such party shall
       request in writing to meet and confer on the item, which item shall be specified in

                                                  1.                                            93-410

       writing. During the life of this Memorandum, either party may refuse such request
       without explanation if the item is directly related to or is an item directly considered
       herein, or if the item was included in a written proposal of either party during the
       meet-and-confer process which led to this agreement, and no unilateral action may
       be taken thereon after such refusal."

                On May 29, 1992, after numerous "contacts" between the parties, the city filed a
complaint for injunctive and declaratory relief seeking to require the FPOA and Local 753 to
"negotiate in good faith" concerning the eight-city formula and for declaratory relief as to its rights
under the MOUs in light of the zipper clauses. The trial court concluded that the zipper clauses were
susceptible to the unions' interpretation, allowing them to refuse to meet and confer or negotiate with
respect to the eight-city formula, but that the clauses were unconstitutional as so interpreted. The
court stated in its order:

               "The MOU's, as interpreted by Defendants, are in violation of Article XI,
       section 3, subdivision (b) of the California Constitution in that they permit
       defendants to decide if and when plaintiffs may propose a ballot measure to the
       voters concerning the repeal or amendment of charter section 809 during the life of
       the MOU's. This is an impermissible restriction on the constitutional prerogatives
       of the City under the California Constitution."1

               The city council thereafter adopted a resolution proposing a charter amendment that
would repeal the eight-city formula. The resolution was adopted without notice being given to the
unions. The unions responded by requesting the city to meet and confer with them before submitting
the charter amendment to the electorate; the city rejected the union's request.

                On November 24, 1992, the unions filed a complaint for injunctive relief and a
petition for a writ of mandate against the city to prohibit the holding of the election and to require
the city to meet and confer and "bargain in good-faith." The court refused to restrain the holding
of the election, but overruled the city's demurrer, and the city has filed an answer to the complaint
and petition. On March 2, 1993, the voters approved the charter amendment repealing the eight-city
formula. On April 5, 1993, the charter amendment was filed with the Secretary of State.




   1
    Section 3 of article XI of the California Constitution provides in part:

               "(a) For its own government, a county or city may adopt a charter by majority
       vote of its electors voting on the question. The charter is effective when filed with
       the Secretary of State. A charter may be amended, revised, or repealed in the same
       manner. A charter, amendment, revision, or repeal thereof shall be published in the
       official State statutes. County charters adopted pursuant to this section shall
       supersede any existing charter and all laws inconsistent therewith. The provisions
       of a charter are the law of the State and have the force and effect of legislative
       enactments.

               "(b) The governing body or charter commission of a county or city may
       propose a charter or revision. Amendment or repeal may be proposed by initiative
       or by the governing body."

                                                  2.                                              93-410

                           QUESTION OF FACT OR ISSUE OF LAW


               Did the city fail to comply with the requirements of the MMBA with respect to
possible alternatives to the eight-city formula so as to cause the charter amendment to be invalid?

                                            ANALYSIS


                Section 803 of the Code of Civil Procedure provides for the filing of an action in the
nature of quo warranto. (International Assn. of Fire Fighters v. City of Oakland (1985) 174
Cal.App.3d 687, 693.) It authorizes the Attorney General to bring an action "in the name of the
people . . . upon a complaint of a private party, against . . . any corporation . . . which usurps,
intrudes into, or unlawfully holds or exercises any franchise within this state."

                A city charter is such a franchise. It has long been held that the proper remedy to
attack the validity of a city charter amendment is through a quo warranto action. (People ex rel. Seal
Beach Police Officers Association v. City of Seal Beach (1984) 36 Cal.3d 591, 595; Oakland
Municipal Improvement League v. City of Oakland (1972) 23 Cal.App.3d 165, 168-169.)2

               In determining whether to grant leave to sue in quo warranto the Attorney General
considers (1) whether the application has raised a substantial question of fact or issue of law which
should be decided by a court and (2) whether it would be in the public interest to grant leave to sue.
(76 Ops.Cal.Atty.Gen. 38, 39 (1993); 76 Ops.Cal.Atty.Gen. 1, 2 (1993).) Thus, "`"it is not the
province of the Attorney General to pass upon the issues in controversy, but rather to determine
whether there exists a state of facts or questions of law that should be determined by a court."'" (72
Ops.Cal.Atty.Gen. 63, 69 (1989).

                The MMBA requires that the governing body of a public agency, or its
representatives, "shall meet and confer in good faith regarding wages, hours, and other terms and
conditions of employment with representatives of . . . employee organizations." (Gov. Code, §
3505.) It also provides that the governing body "shall give reasonable written notice to each
recognized employee organization affected of any ordinance, rule, resolution, or regulation directly
relating to matters within the scope of representation . . . and shall give such recognized employee
organization the opportunity to meet and confer with the governing body . . . ." (Gov. Code, §
3504.5.)

                In People ex rel Seal Beach Police Officers Association v. City of Seal Beach, supra,
36 Cal.3d 591, the question before the Supreme Court was whether a charter city was required to
meet and confer with recognized employee organizations before proposing city charter amendments
involving matters within the scope of representation. The court rejected the contention that the city
council had the absolute right to submit charter amendments to the electorate without first consulting
the unions. The court stated:

               "The city, however, claims that the MMBA cannot be harmonized with its
       constitutional right to propose charter amendments . . . . Under this argument, the
       city's power to amend its charter is so absolute that it is irrelevant that a legislative
       enactment which purports to affect it, does not actually conflict with this power. The
       law, however, is that a city's power to amend its charter can be subject to legislative
       regulation. (District Election, Etc. Committee v. O'Connor (1978) 78 Cal.App.3d

   2
    Pulskamp v. Martinez (1992) 2 Cal.App.4th 854, 859-860, while distinguishable on several
points, must be viewed as consistent with this well established principle.

                                                  3.                                               93-410
        261, 267.) That case squarely held that `the regulation of the charter amendment
        process is a matter of statewide concern governed exclusively by general laws which
        supersede conflicting provisions in a city and county charter . . . .'" (Id., at pp. 598-
        599.)
               A quo warranto action is the proper method to test the validity of a city charter
amendment. While peripheral issues may be decided in the pending lawsuits filed by the city and
the unions, those actions were filed prior to the amendment of the charter and do not directly
challenge the amendment's validity. Whether the amendment is valid or not presents substantial
questions of fact and law with respect to the actions of the parties in complying with the provisions
of the MMBA. Specifically, the issues here are whether the city was required to give notice to the
unions prior to adopting the resolution proposing the charter amendment repealing the eight-city
formula and whether it was required to meet and confer with the unions after the resolution was
adopted. (Gov. Code, §§ 3504.5, 3505.)

                 This office has upon prior occasions granted leave to sue in quo warranto in charter
amendment challenges similar to this. In People ex rel. Seal Beach Police Officers Association v.
City of Seal Beach, supra, 36 Cal. 3d 591, for example, the complaint "prayed that the trial court (1)
issue a writ of quo warranto ordering that the amendments be stricken; (2) make an order declaring
the charter additions and amendments null and void; and (3) declare that certain sections of the
Charter . . . remain in force as they existed before the amendments." (Id., at p. 595.) We granted
the application for leave to sue to test whether the charter amendments were invalid by reason of
noncompliance with the requirements of the MMBA, and the Supreme Court noted that "[t]he
propriety of the procedure is not questioned." (Id., at p. 595, fn. 3.) We believe that Seal Beach
governs here and that the same public interest and purposes are present: to resolve important
questions of fact and law and to settle labor strife in the public sector. Accordingly, leave to sue is
hereby granted.

                                              *****




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