Filed 6/12/13




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


ASSOCIATION OF ORANGE COUNTY
DEPUTY SHERIFFS,
                                                       G047167
    Plaintiff and Appellant,
                                                       (Super. Ct. No. 30-2011-00442746)
        v.
                                                       OPINION
COUNTY OF ORANGE et al.,

    Defendants and Respondents.



                  Appeal from a judgment of the Superior Court of Orange County,
Charles Margines, Judge. Affirmed.
                  Law Offices of James E. Trott and James E. Trott for Plaintiff and
Appellant.
                  Nicholas S. Chrisos, County Counsel, and Leon J. Page, Deputy County
Counsel, for Defendants and Respondents.


                                  *             *             *
                                     INTRODUCTION
              By Orange County Sheriff Sandra Hutchen‟s (the Sheriff) order, effective
January 1, 2011, any member of the Orange County Sheriff‟s Department (the
Department), who is under investigation for misconduct, is no longer permitted access to
the Department‟s internal affairs investigative file before being interviewed by an internal
affairs investigator. The Association of Orange County Deputy Sheriffs (the Association)
filed a petition for writ of mandate and sought a preliminary injunction against Orange
County (the County), the Department, the Sheriff, and the County‟s board of supervisors
(collectively, defendants). The Association alleged the Sheriff‟s order violated the
meet-and-confer requirements of the Meyers-Milias-Brown Act (MMBA) (Gov. Code,
§ 3500 et seq.) and constituted a breach of the Association‟s applicable memorandum of
understanding with the County (the MOU). (All further statutory references are to the
Government Code unless otherwise specified.) The trial court denied the Association‟s
request for a preliminary injunction and petition for writ of mandate.
              We affirm. We hold the Sheriff‟s order delaying access to the internal
affairs investigative files until after the investigative interview was within her legal
authority and not subject to meet-and-confer requirements. Our holding applies the
analysis of our Supreme Court in Pasadena Police Officers Assn. v. City of Pasadena
(1990) 51 Cal.3d 564 (Pasadena). We also address a question the California Supreme
Court expressly did not reach in Pasadena, and hold a long-standing past practice of
preinvestigative interview access to the investigative file, alone, does not constitute a
working condition within the meaning of the MMBA.
              The trial court properly applied the test for determining whether an issue
falls within the scope of representation under the MMBA as set forth by our Supreme
Court in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623
(Claremont) and International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public

                                               2
Employment Relations Bd. (2011) 51 Cal.4th 259 (International Assn. of Fire Fighters).
For the reasons we will explain, the Sheriff‟s order did not significantly or adversely
affect wages, hours, or other terms and conditions of employment within the meaning of
the MMBA. Even if it did, the Sheriff‟s order fell outside the scope of representation
because it was a fundamental managerial or policy decision that was not outweighed by
the benefit to employer-employee relations that would result from bargaining about the
decision. The Sheriff‟s order did not violate any express or implied term of the MOU.


                                          FACTS
               The Department has an internal affairs bureau of its Professional Standards
           1
Division. For “many years,” the Department allowed deputies, investigators, and
sergeants, who were under investigation for misconduct and possibly subject to discipline
(principals), “complete access” to the Department‟s internal affairs investigative files
                                                                                     2
before submitting to an investigative interview by internal affairs investigators.
               The investigative files include memoranda written by managers and
supervisors; witness statements gathered by an internal affairs investigator; transcripts of
interviews with other employees; and, when available, physical evidence including video
footage. Before the Sheriff‟s order became effective, a principal was permitted to spend
as much time “as needed” to review the investigative file, and might spend several hours,
if not days, reviewing the file. A principal was also allowed to review the contents of the


       1
         The Professional Standards Division conducts approximately 400 internal affairs
investigations of alleged misconduct by the Department‟s members each year,
approximately half of which result in some kind of discipline, ranging from a verbal
reprimand to discharge.
       2
         Defendants submitted evidence that 135 investigators who worked in the district
attorney‟s office had not been provided preinvestigative interview access to the
investigative file even though they are part of the same bargaining unit as the deputies,
investigators, and sergeants, covered by the MOU, and represented by the Association.

                                             3
investigative file with his or her attorney or union representative, and to make personal
notes of the contents.
              In her declaration, the Department‟s Captain Linda Solorza stated the
Department‟s practice of providing preinvestigative interview access to the investigative
file interfered with the internal affairs bureau‟s ability “to conduct prompt, thorough, and
fair investigations into peace officer misconduct.” Evidence showed the preinvestigative
interview access practice did not promote truthseeking and was inconsistent with
                                                                                      3
techniques employed by the Department in other kinds of investigatory interviews.
According to Solorza, providing such access threatened to color the principal‟s
recollection of events or “lead that person to conform his or her version of an event to
that given by witnesses already questioned.”
              In his declaration, the Department‟s Lieutenant Jeffrey Hallock, who had
served as a sergeant in the Professional Standards Division, stated the Department‟s
practice created the temptation for a principal or witness “to conform his or her
statements to the statements of others to either protect the witness‟s colleagues, or to
protect himself or herself.” Solorza added in her declaration: “[I]f the principal under
investigation does not know the sum total of what the Internal Affairs investigator knows,
the principal will have more reason to be truthful and forthright when responding to the
investigator‟s questions. This would also be the case in interviews with witnesses.
Witnesses are more often truthful and forthright when they know that the principal will
not have access to the witness‟s interview prior to the principal‟s own interview. When
the principal does not know what the interviewing Investigator knows, the Investigator is
also better positioned to assess the principal‟s credibility.”


       3
         The declaration of the Department‟s Commander Steve Kea stated in part: “It
has been my experience that most law enforcement agencies in the State of California do
not provide their employees with an opportunity to review the investigative file prior to
conducting the employee‟s investigative interview . . . .”

                                               4
              Solorza also stated the preinvestigative interview access practice had a
“chilling” effect on witnesses. For example, in one sexual harassment case, the victims
and witnesses of the alleged misconduct expressed concern about the disclosure of their
statements to the principal (while the investigation was still pending) because they feared
retaliation before the Department could take appropriate remedial action to address any
misconduct.
              Solorza further stated in her declaration the Department‟s practice
particularly hindered investigations that involved more than one principal. For example,
if one principal abruptly resigned after reviewing his or her investigative file but before
his or her investigative interview, the Professional Standards Division would be unable to
compel that principal to provide a statement regarding the conduct of the other principals
under investigation. The completion of such investigations was delayed by principals
seeking to review other principals‟ investigative interviews before submitting to their
own interviews.
              The Sheriff described the Department at the time of her appointment in
2008 as “reeling from a lack of accountability, transparency, and leadership.” Her
predecessor was under investigation for witness tampering and related corruption
charges. The Department was also dealing with the murder of a jail inmate and
allegations that “jail deputies relied on „shot callers‟ to control other inmates in the
county jails.” The Sheriff pledged to the public that she “would restore accountability,
openness, trust, and transparency to the operations of the Sheriff‟s Department.”
              In December 2010, the Sheriff decided to reform the manner in which
internal affairs investigations of principals were conducted. She concluded a policy
change was “absolutely necessary to ensure the integrity and reliability of future internal
affairs investigations” and to bring the Department in line with what is considered to be
the “best practice” in conducting internal affairs investigations.



                                               5
               On December 28, 2010, the Sheriff ordered, by executive command, that
effective January 1, 2011, the Professional Standards Division would stop providing all
principals with preinvestigative interview access to the investigative files. The change in
practice was not made in response to any specific instance of misconduct, but was made
“in order to improve the reliability and integrity of the Department‟s internal affairs
investigations.” For cases investigating misconduct, which were initiated before
January 1, 2011, the Department continued to provide preinvestigative interview access
to the investigative file.
               In her declaration, Solorza stated: “[A]s required by the Public Safety
Officer‟s Procedural Bill of Rights Act and also by the Skelly decision (Skelly v. State
Personnel Board, 15 Cal.3d 194 (1975)) when discipline is proposed, a peace officer is
provided with a copy of all the materials (including all investigative files) on which the
decision to impose discipline is being based. However, as a result of the Sheriff‟s policy
decision, the investigative materials are now provided to the peace officer only when
discipline is proposed, instead of prior to the employee‟s investigative interview.”
               The change in practice did not alter or otherwise affect the Department‟s
standards of conduct or ethical canons; the Department‟s employees were already
prohibited from making a false statement to superiors and other employees. The MOU
did not address the issue, much less state, that the Department would provide any
principal with preinvestigative interview access to the investigative file.
               The Association immediately objected to the Sheriff‟s order and asserted
that withdrawal of preinvestigative interview access to the investigative file was a
mandatory item of bargaining, subject to the meet-and-confer process of the MMBA.
The Sheriff responded that the change in the Department‟s practice, implemented by her
order, “is not a subject that requires negotiation.”




                                              6
                             PROCEDURAL BACKGROUND
                                             I.

               THE ASSOCIATION FILES A PETITION FOR WRIT OF MANDATE
                              AGAINST DEFENDANTS.
              In January 2011, the Association filed a petition for writ of mandate under
Code of Civil Procedure section 1085 (the petition) against defendants to enforce its
collective bargaining rights under the MMBA and the MOU. The petition alleged
defendants have a “ministerial duty” to follow the law with regard to public
employer-employee relations and failed to do so because they unilaterally implemented a
change in working conditions by “no longer following the long standing practice of
providing investigative materials for review prior to Internal Affairs interrogation,
without meeting and conferring as required by law.” The petition further alleged
defendants‟ conduct also violated the so-called “zipper clause” contained in article XXIII
of the MOU, which required the parties‟ mutual agreement to negotiate “any subject
matter covered herein or with respect to any other matter with[in] the scope of
representation” during the MOU‟s term.
              The petition sought issuance of a peremptory writ of mandate commanding
defendants “not to change the Internal Affairs investigation process as it pertains to the
provision of all investigative materials to members of the bargaining unit represented by
[the Association] prior to such members being interrogated in connection with a
Personnel Investigation, or other investigation of alleged misconduct, by employees of
[the Department], absent agreement to do so reached as part of the collective bargaining
process for a successor agreement to the current Memorandum of Understanding which
expires on October 4, 2012, and to take no actions to unilaterally implement any change
in that practice until such time.”



                                             7
                                              II.

              THE TRIAL COURT DENIES THE ASSOCIATION‟S REQUEST FOR
                           A PRELIMINARY INJUNCTION.

              In January 2011, the Association filed an ex parte application requesting an
order to show cause regarding the issuance of a preliminary and permanent injunction,
and a temporary restraining order. The Association sought to enjoin defendants from
withdrawing the Department‟s practice of providing preinvestigative interview access to
the investigative file until agreement to do so is reached as part of the collective
bargaining process. The Association asserted it “will be irreparably damaged if the
obligation to refrain from implementing unilateral changes in working conditions is not
enforced by this Court in that the [Association]‟s collective bargaining rights under the
[MMBA] [citation] will have been negated and the terms of the current Memorandum of
Understanding will be rendered null and void.” As in the petition, the Association further
asserted the zipper clause of the MOU contained in article XXIII provides that during the
term of the MOU, the parties may meet and confer on issues within the scope of
representation only if they mutually agree to do so.
              The trial court denied the Association‟s request for a preliminary injunction
on the grounds the Association failed to demonstrate a likelihood of prevailing on the
merits of the petition and also failed to show irreparable harm.


                                             III.

                  THE TRIAL COURT DENIES THE PETITION; JUDGMENT IS
                         ENTERED; THE ASSOCIATION APPEALS.
              The trial court denied the petition for the reasons set forth in its minute
order, described as follows. The court concluded that the Sheriff‟s order, implementing
the withdrawal of preinvestigative interview access to the investigative file, did not


                                              8
violate the MMBA because it did not “implicate or sufficiently impact wages, hours or
working conditions”; it constituted a “fundamental policy decision supported by
sufficient rationale”; and that “[o]n balance, any negative impact on employment
conditions is substantially outweighed by the Sheriff Department‟s need for
unencumbered decision-making in how to investigate deputy misconduct.” The court
further concluded the Sheriff‟s order did not breach any express term of the MOU. The
court also rejected the Association‟s argument that preinvestigative interview access to
the investigative file was an implied term of the MOU, finding “no evidence was
presented from which it can be concluded that „pre-interview access‟ or any past practice
was intended to be a part of the MOU.”
              Judgment was entered denying the petition. The Association appealed.


                                       DISCUSSION
                                              I.
                   THE TRIAL COURT PROPERLY DENIED THE PETITION.

                                             A.

                General Legal Principles Governing Writs of Mandate and
                           the Applicable Standard of Review
              A writ of mandate will issue to “compel the performance of an act which
the law specially enjoins, as a duty resulting from an office, trust, or station” (Code Civ.
Proc., § 1085, subd. (a)), “where there is not a plain, speedy, and adequate remedy, in the
ordinary course of law” (Code Civ. Proc., § 1086). The writ will issue against a county,
city, or other public body, or against a public officer. (Housing Authority v. City of L. A.
(1952) 38 Cal.2d 853, 869-871; County of Los Angeles v. City of Los Angeles (2013) 214
Cal.App.4th 643, 653.)




                                              9
              “In reviewing the trial court‟s denial of the writ, we must determine
whether its findings and judgment are supported by substantial evidence. However,
where the facts are undisputed and a question of law is involved, we may exercise our
independent judgment.” (Riverside Sheriff’s Assn. v. County of Riverside (2003) 106
Cal.App.4th 1285, 1289.)
                                            B.
                     The Sheriff’s Order Did Not Violate the MMBA.
                                             1.
              Overview of the Meet-and-confer Requirements of the MMBA
              “The MMBA applies to local government employees in California.
[Citation.] „The MMBA has two stated purposes: (1) to promote full communication
between public employers and employees, and (2) to improve personnel management and
employer-employee relations. (§ 3500.) To effect these goals the act gives local
government employees the right to organize collectively and to be represented by
employee organizations (§ 3502), and obligates employers to bargain with employee
representatives about matters that fall within the “scope of representation” (§§ 3504.5,
3505).‟” (Claremont, supra, 39 Cal.4th at p. 630, fn. omitted.)
              Under the MMBA, a public employer and a recognized employee
organization have a mutual obligation to meet in person and confer promptly upon either
party‟s request in an endeavor to reach agreement on matters within the scope of
representation before the public agency‟s adoption of its final budget for the coming year.
(International Assn. of Fire Fighters, supra, 51 Cal.4th at p. 271; see § 3505.) The
obligation to bargain in good faith requires that the parties “must genuinely seek to reach
agreement.” (International Assn. of Fire Fighters, supra, at p. 271.) The MMBA does
not require that the parties actually reach an agreement. (International Assn. of Fire
Fighters, supra, at p. 271.) “[A] public employer has the ultimate power to reject
employee proposals on any particular issue.” (Ibid.; see Claremont, supra, 39 Cal.4th at

                                            10
p. 630 [“Even if the parties meet and confer, they are not required to reach an agreement
because the employer has „the ultimate power to refuse to agree on any particular
issue‟”].)
              Section 3504 defines the term “scope of representation” to include “all
matters relating to employment conditions and employer-employee relations, including,
but not limited to, wages, hours, and other terms and conditions of employment, except,
however, that the scope of representation shall not include consideration of the merits,
necessity, or organization of any service or activity provided by law or executive order.”
The California Supreme Court has stated: “The definition of „scope of representation‟
and its exceptions are „arguably vague‟ and „overlapping.‟ [Citations.] „“[W]ages, hours
and working conditions,” which, broadly read could encompass practically any
conceivable bargaining proposal; and “merits, necessity or organization of any service”
which, expansively interpreted, could swallow the whole provision for collective
negotiation and relegate determination of all labor issues to the city‟s discretion.‟
                                                         4
[Citation.]” (Claremont, supra, 39 Cal.4th at p. 631.)
              In Claremont, supra, 39 Cal.4th at page 638, the California Supreme Court
clarified a three-part test (the Claremont test) to determine whether an employer‟s action
is subject to the meet-and-confer requirements of section 3505: “First, we ask whether


       4
         “To resolve ambiguities and uncertainties inherent in the MMBA‟s definition of
the scope of representation, [the California Supreme C]ourt has looked to federal
precedents. [The Supreme C]ourt has noted that the first key phrase in the MMBA‟s
definition of the scope of representation—„wages, hours, and other terms and conditions
of employment‟ (§ 3504)—was copied verbatim from the federal NLRA [(National
Labor Relations Act)] (see 29 U.S.C. § 158(d)), while the other key phrase—„merits,
necessity, or organization of any service‟ (§ 3504)—was intended to incorporate the
„“general managerial policy”‟ exception developed by federal courts to determine the
scope of representation under the NLRA. [Citations.]” (International Assn. of Fire
Fighters, supra, 51 Cal.4th at p. 272, citing Building Material & Construction Teamsters’
Union v. Farrell (1986) 41 Cal.3d 651, 658, 663 and Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608, 616-617.)

                                             11
the management action has „a significant and adverse effect on the wages, hours, or
working conditions of the bargaining-unit employees.‟ [Citation.] If not, there is no duty
to meet and confer. [Citations.] Second, we ask whether the significant and adverse
effect arises from the implementation of a fundamental managerial or policy decision. If
not, then . . . the meet-and-confer requirement applies. [Citation.] Third, if both factors
are present—if an action taken to implement a fundamental managerial or policy decision
has a significant and adverse effect on the wages, hours, or working conditions of the
employees—we apply a balancing test. The action „is within the scope of representation
only if the employer‟s need for unencumbered decisionmaking in managing its operations
is outweighed by the benefit to employer-employee relations of bargaining about the
action in question.‟ [Citation.] In balancing the interests to determine whether parties
must meet and confer over a certain matter [citation], a court may also consider whether
the „transactional cost of the bargaining process outweighs its value.‟”

                                             2.

               Application of the Claremont Test Shows the Sheriff’s Order
                                Did Not Violate the MMBA.
              After applying the Claremont test to the Sheriff‟s order, the trial court
concluded that the Sheriff‟s executive command ordering the withdrawal of
preinvestigative interview access to the investigative file was not subject to the
meet-and-confer requirements of the MMBA. For the reasons we will explain, the trial
court reached the correct conclusion.

                                             a.

           The Sheriff’s order did not significantly and adversely affect wages,
             hours, or working conditions within the meaning of the MMBA.
              As to the first part of the Claremont test, there is no evidence the Sheriff‟s
order significantly and adversely affected wages or hours; the Association does not


                                             12
contend otherwise. Instead, the Association argues the Sheriff‟s order substantially and
adversely affects working conditions, thereby subjecting it to the MMBA‟s
meet-and-confer requirements.
              The MMBA does not define the phrase “other terms and conditions of
employment.” (§ 3504.) Courts have construed the phrase “wages, hours, and other
terms and conditions of employment” to include the transfer of bargaining-unit work to
nonunit employees, mandatory drug testing of employees, work shift changes, and the
adoption of a disciplinary rule prohibiting use of public facilities for personal use.
(Claremont, supra, 39 Cal.4th at p. 631.)
              In Long Beach Police Officer Assn. v. City of Long Beach (1984) 156
Cal.App.3d 996, 998, the appellate court affirmed the judgment ordering the issuance of a
peremptory writ of mandate prohibiting the Long Beach Police Department, among
others, from denying its officers “a „past practice‟ of consultation with a [union]
representative or an attorney prior to making oral and written reports concerning
incidents in which an officer was involved in a shooting.” The appellate court held that
because the parties‟ memorandum of understanding “specifically prohibit[ed] the
reduction in „consistently applied past practices‟ unless the parties mutually agreed to
such reduction in writing „prior to implemention[,]‟” that practice “cannot be unilaterally
terminated . . . and does not violate public policy.” (Ibid.) Explaining that its holding did
not violate public policy, the appellate court stated, inter alia: “When an officer uses his
weapon, the circumstances are normally serious and life-threatening. The focus is clearly
and directly upon the officer and the other participants of the incident. While the public
concern for a timely revelation of facts in these circumstances is extremely important, it
does not outweigh the contractual right of the officer to consult with an advisor prior to
the preparation of a report, especially when the report could be incriminating and the
decision to seek punitive or criminal action could in part be based upon such report. The



                                              13
public concern cannot also outweigh the potential violations of the officer‟s rights under
the Fifth and Sixth Amendments.” (Id. at p. 1010, italics added.)
              In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles
(2008) 166 Cal.App.4th 1625, 1628 (ALADS), the appellate court considered whether the
Los Angeles County Sheriff‟s Department violated the MMBA by unilaterally
implementing the following “anti-huddling policy revision”: “„[P]rior to being
interviewed by assigned Departmental investigators. . . . Members [of the Department]
who were either involved in or witnessed [a deputy-involved shooting] may consult
individually with legal counsel or labor representatives . . . [but] . . . shall not consult
with legal counsel and or labor representatives collectively or in groups (e.g., two or
more members consulting at the same time with the same legal counsel/labor
representatives).‟”
              In ALADS, the plaintiff union alleged, “the right of the Department‟s
deputies to huddle with counsel is a „working condition‟ because it has been a „consistent
and established practice . . . for over 25 years.‟” (ALADS, supra, 166 Cal.App.4th at
p. 1643.) The appellate court, relying on Long Beach Police Officer Assn. v. City of Long
Beach, supra, 156 Cal.App.3d 996, rejected the union‟s argument, stating: “The problem
we see with [the union]‟s argument is that it has not shown us any provision in the
parties‟ MOU which defines „working conditions‟ to include „consistent and established
practices.‟ For this reason, alone, [the union] has not shown that it is likely to prevail on
its meet-and-confer claim under the MMBA.” (ALADS, supra, at p. 1643.) The appellate
court also noted the lack of any statutory support for the union‟s position, stating:
“[S]ection 3303, subdivision (i), does not support the proposition that a right to huddle
with counsel is a necessary component of a peace officer‟s working conditions.
Section 3303, subdivision (i), provides that a „public safety officer‟ has a right to be
represented by legal counsel of „his or her choice.‟ The right protected under



                                               14
section 3303, subdivision (i), is an individual officer‟s right to counsel, and does not
expressly protect a right to huddle in a group with counsel.” (Ibid.)
              Here, as in ALADS, the MOU neither prohibits a reduction of existing
“„consistently applied past practices‟” nor otherwise establishes that past practices
constitute working conditions, triggering the meet-and-confer requirements of the
MMBA. (Long Beach Police Officer Assn. v. City of Long Beach, supra, 156 Cal.App.3d
at p. 998). Furthermore, the provision of preinvestigative interview access to the
investigative file is not supported by statute or public policy.
              In Pasadena, supra, 51 Cal.3d at page 569, the California Supreme Court
held that section 3303 (contained in the Public Safety Officers Procedural Bill of Rights
Act, § 3300 et seq.) does not manifest “a legislative intent to grant preinterrogation
discovery rights to a peace officer who is the subject of an internal affairs investigation.”
The California Supreme Court explained: “To keep the peace and enforce the law, a
police department needs the confidence and cooperation of the community it serves.
Even if not criminal in nature, acts of a police officer that tend to impair the public‟s trust
in its police department can be harmful to the department‟s efficiency and morale. Thus,
when allegations of officer misconduct are raised, it is essential that the department
conduct a prompt, thorough, and fair investigation. Nothing can more swiftly destroy the
community‟s confidence in its police force than its perception that concerns raised about
an officer‟s honesty or integrity will go unheeded or will lead only to a superficial
investigation.” (Pasadena, supra, at p. 568.)
              In Pasadena, supra, 51 Cal.3d at page 578, the California Supreme Court
explained its reasoning: “Unlike other protections set forth in the [Public Safety Officers
Procedural Bill of Rights ]Act, a right to preinterrogation discovery is not essential to the
fundamental fairness of an internal affairs investigation. Indeed, the right to discovery
before interrogation and before charges have been filed, as [the union] seeks here, is
without precedent.” (Some italics added.) The court stated, “granting discovery before

                                              15
interrogation could frustrate the effectiveness of any investigation, whether criminal or
administrative. Underlying every administrative inquiry into suspected officer
misconduct is the obligation of the law enforcement agency to assure public confidence
in the integrity of its officers. The purpose of the inquiry is to determine whether there is
any truth to the allegations of misconduct made against an officer and, if so, whether to
commence disciplinary proceedings. . . . [¶] Disclosure before interrogation might color
the recollection of the person to be questioned or lead that person to conform his or her
version of an event to that given by witnesses already questioned. . . . [¶] Furthermore, to
require disclosure of crucial information about an ongoing investigation to its subject
before interrogation would be contrary to sound investigative practices. During an
interrogation, investigators might want to use some of the information they have amassed
to aid in eliciting truthful statements from the person they are questioning. Mandatory
preinterrogation discovery would deprive investigators of this potentially effective tool
and impair the reliability of the investigation. This is true in any interrogation, whether
its purpose is to ferret out criminal culpability or, as in this case, to determine if a peace
officer used a mailing list in contravention of a direct order by his superiors.” (Id. at
                5
pp. 578-579.)
                Notwithstanding the above cited authorities, the Association argues in its
opening brief: “The meet and confer requirement extends to changes in existing and
acknowledged practices, even if, as in this instance, they are not formalized in a written
agreement or rule.” The Association‟s assertion is correct only to the extent that the past
practice in question significantly and adversely affects wages, hours, or other terms and

       5
          The Supreme Court acknowledged that the union had “alleged that the
Department had a practice of preinterrogation disclosure.” (Pasadena, supra, 51 Cal.3d
at p. 580.) The Supreme Court stated that because the trial court had not yet resolved that
issue, “[w]e need not determine whether the Department did have such a practice” and
whether an officer was entitled to preinterrogation access to certain notes taken during a
different interview. (Ibid.)

                                              16
conditions of employment, as confirmed by the cases cited by the Association in support
of its argument. (See San Francisco Fire Fighters Local 798 v. Board of Supervisors
(1992) 3 Cal.App.4th 1482, 1491 [“The fire commission‟s decision changed the accepted
practice under which employees expected to be promoted. Consequently, there is no
question the decision affected the „terms and conditions of employment‟”]; International
Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 971-973
[analyzing amendment relative to probationary employees‟ eligibility for merit pay
increases]; Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d
256, 265 [county‟s refusal to continue to permit employees to use their motorcycles at
work is a meet-and-confer item]; Vernon Fire Fighters v. City of Vernon (1980) 107
Cal.App.3d 802, 817 [imposition of disciplinary rule prohibiting long-standing practice
that allowed firefighters to use city facilities to wash their private automobiles during
                6
off-duty time].) The Association does not cite any legal authority, and we have found
none, supporting the argument that any long-standing past practice necessarily constitutes
a working condition within the meaning of the MMBA.
              Here, the Sheriff‟s order did not infringe on any statutory rights or affect
any issue addressed in the MOU. In light of the foregoing evidence and relevant legal
authorities, the Sheriff‟s order implementing the withdrawal of preinvestigative interview
access to the investigative file did not significantly and adversely affect wages, hours, or
working conditions within the meaning of the MMBA. Therefore, defendants did not



       6
         The Association also cites several federal circuit court cases and National Labor
Relations Board cases in support of its argument, all of which are readily distinguishable
from the instant case because the past practices at issue in those cases clearly impacted
wages, hours, or other terms and conditions of employment. (See, e.g., Rahco, Inc.
(1982) 265 NLRB 235, 256-257 [imposition of new written warnings and discipline
system constituted a significant change in the employees‟ working conditions as it
materially and substantially affected job security and thus was a mandatory subject of
bargaining].)

                                             17
violate the MMBA by failing to meet and confer on that issue before implementing the
change in practice.

                                             b.

              Even if the Sheriff’s order significantly and adversely affected
            working conditions within the meaning of the MMBA, it constituted
           the implementation of a fundamental managerial or policy decision.
              In International Assn. of Fire Fighters, supra, 51 Cal.4th at page 273, the
California Supreme Court reiterated the second and third parts of the Claremont test in its
analysis of “management decisions that directly affect employment, such as eliminating
jobs, but nonetheless may not be mandatory subjects of bargaining because they involve
„a change in the scope and direction of the enterprise‟ or, in other words, the employer‟s
„retained freedom to manage its affairs unrelated to employment.‟” The Supreme Court
held: “Bargaining is not required for decisions in this category if they do not raise an
issue that is „amendable to resolution through the bargaining process‟ [citation], although
the employer is normally required to bargain about the results or effects of such decisions
[citation]. To determine whether a particular decision in this third category is within the
scope of representation, the [United States Supreme C]ourt prescribed a balancing test,
under which „in view of an employer‟s need for unencumbered decisionmaking,
bargaining over management decisions that have a substantial impact on the continued
availability of employment should be required only if the benefit, for labor-management
relations and the collective-bargaining process, outweighs the burden placed on the
conduct of the business.‟ [Citation.]” (Ibid.)
              In ALADS, supra, 166 Cal.App.4th at pages 1643-1644, the appellate court
held that even assuming the anti-huddling policy revision at issue significantly and
adversely affected working conditions within the meaning of the MMBA, that policy
revision arose from the implementation of a fundamental managerial or policy decision,
and thus was outside the meet-and-confer requirements of the MMBA. The appellate

                                             18
court explained: “Section 3504 of the MMBA incorporates the principle developed in
federal law that employers have a right to make unconstrained decisions when
fundamental management or policy choices are involved.” (ALADS, supra, at p. 1644.)
              Here, the withdrawal of preinvestigative interview access to the
investigative file was ordered “to ensure the integrity and reliability of future internal
affairs investigations” and to bring the Department in line with what is considered to be
the “best practice” in conducting internal affairs investigations. The change in practice
implemented by the Sheriff‟s order, therefore, squarely falls into the third part of
management decisions described in International Assn. of Fire Fighters, supra, 51
Cal.4th at page 273, as it constitutes a fundamental managerial decision, falling within
the Department‟s “„freedom to manage its affairs unrelated to employment‟” (ibid). The
Association does not identify any results from, or effects of, the Sheriff‟s order, which
are subject to bargaining.

                                              c.

          The Sheriff’s need to withdraw preinvestigative interview access to the
         investigative file is not outweighed by the benefit to employer-employee
                  relations of bargaining about that change in practice.
              Even were we to assume the Sheriff‟s order constituted a fundamental
managerial or policy decision that significantly and adversely affected working
conditions, the Sheriff‟s need for unencumbered decisionmaking to ensure the integrity of
the Department‟s internal affairs investigations of alleged misconduct is not outweighed
“„by the benefit to employer-employee relations of bargaining about the action in
question‟” (Claremont, supra, 39 Cal.4th at p. 638) for the reasons set forth in Pasadena,
supra, 51 Cal.3d 564, as discussed ante.
              In ALADS, supra, 166 Cal.App.4th at page 1644, the appellate court
similarly concluded: “Is the Department‟s need for unencumbered decisionmaking in
managing its operations outweighed by the benefit to employer-employee relations of

                                              19
bargaining about the action in question? . . . [W]e answer this question „no.‟ The
deputies‟ working condition claim is tenuous, and the Department‟s interest in public
accountability is significant on its face.”
              In light of the foregoing, the Sheriff‟s order withdrawing preinvestigative
interview access to the investigative file was not subject to the meet-and-confer
requirements of the MMBA.

                                              C.
              The Sheriff’s Order Did Not Constitute a Breach of the MOU.
              The petition also asserted the Sheriff‟s order violated certain terms of the
MOU. For reasons we will explain, the trial court did not err by rejecting this argument.

                                              1.
                   Applicable Legal Principles and Standard of Review
              “The MOU, entered into between the county and the [union] on behalf of
employees . . . , is „a mutually agreed covenant, a labor management contract. . . . [¶] . . .
[A]ll modern California decisions treat labor-management agreements . . . as enforceable
contracts [citation] which should be interpreted to execute the mutual intent and purpose
of the parties.‟ [Citation.] „“Thus, „“[w]e are free to make our own independent
interpretation of the terms of the contract and its application to the instant dispute.”‟”‟”
(Riverside Sheriffs’ Assn. v. County of Riverside (2009) 173 Cal.App.4th 1410, 1424.)
“„[B]ecause we must interpret the MOU to “„execute the mutual intent and purpose of the
parties[,]‟” we independently review the appellate record. [Citation.]‟” (Ibid.) We
independently interpret a contract, such as the MOU, where the interpretation does not
turn on the credibility of extrinsic evidence. (City of El Cajon v. El Cajon Police
Officers’ Assn. (1996) 49 Cal.App.4th 64, 70-71.)




                                              20
                                              2.
                                 The Trial Court’s Findings
              In its minute order denying the petition, the trial court set forth its factual
findings and its detailed, well-reasoned analysis rejecting the Association‟s argument that
the Sheriff‟s order violated the MOU. Particularly pertinent excerpts from the minute
order are:
              “[The Association] contends that the past practice of „pre-interview access‟
was part of the MOU, and that unilaterally withdrawing the past practice is a breach of
the agreement. The MOU says nothing about „pre-interview access‟ and nothing about
incorporating past practices, except to the extent it preserves [defendants‟] pre-existing
rights and powers. . . . [The Association] contends that the silence is of no consequence
since „pre-interview access‟ is an „implied‟ term of the MOU.
              “MOUs are contracts, and ordinarily the existence of implied terms turns on
the scope of any integration clause. Here, the MOU does not contain an integration
clause, but where parties execute a written agreement, that agreement is at least partially
integrated to the extent new or different terms are sought to be incorporated therein.
[Citation.] There is nothing in the MOU to suggest any intention to incorporate implied
terms or past practices. [Citations.] Moreover, the MOU does make some tangential
reference to investigative rights:
              “—Article III, Sec. 3 (PO-24), giving an employee the right to review
„adverse statements‟ and „reports concerning criminal investigations‟ before they are
made part of the employee‟s personnel file.
              “—Article IX, Sec. 2 (PO-57), enumerating the information which must be
provided to an employee prior to a disciplinary hearing (but nothing regarding an
investigation).
              “The inclusion of these particular rights suggests that the exclusion of
„pre-interview access‟ was intentional. [Citation.] If the [Association] intended to

                                              21
perpetuate the „pre-interview access‟ policy as a condition precedent to any investigative
interview, either Article III or IX would have been a logical place to insert a reference to
such policy. In fact, [the Association] admits that this very topic was discussed but was
unresolved during negotiations for the 2003-2006 MOU . . . ; therefore its absence from
any MOU (much less the operative 2009-2012 MOU) is telling, particularly given the
California Supreme Court‟s holding in Pasadena Police Officers Assn vs. City of
Pasadena (1990) . . . 51 Cal.3d 564 that peace officers have no statutory right to
„pre-interview access‟ or other advance discovery. Under the circumstances,
„pre-interview access‟ would not naturally have been excluded from the MOU [citation],
and is not reasonably susceptible to any of the written terms. Even though it was not
completely at variance with an express term [citation], „pre-interview access‟ appears to
have been a term which the parties specifically agreed to disagree on. Thus, absent a
meeting of the minds it cannot now become an enforceable term in the agreement.”
              In the minute order, the trial court rejected the Association‟s contention that
“past practices are, by law, incorporated as implied terms of an MOU,” as being without
support of legal authority. The court also rejected the Association‟s contention that “the
„zipper clause‟ in the MOU (Article XXIII) obligates [defendants] to meet and confer
                                                  7
over the „pre-interview access‟ policy change.”
              The trial court stated, “[a] zipper clause is frequently found in labor
agreements and is intended to „close out bargaining during the contract term and to make
the written contract the exclusive statement of the parties‟ rights and obligations,‟” but



       7
         The so-called zipper clause in article XXIII of the MOU is entitled
“MODIFICATION AND WAIVER” (underscoring omitted) and states in its entirety:
“Except as specifically provided herein, it is agreed and understood that the parties hereto
reserve the right, only upon mutual agreement, to negotiate with respect to any subject or
matter covered herein or with respect to any other matter within the scope of
representation during the term of the Memorandum of Understanding.”

                                             22
                                              8
“[n]ot all zipper clauses are created equal.” The court stated that in the instant case, the
zipper clause contained in the MOU “is poorly constructed. It preserves a „right‟ to
negotiate matters within the MOU, whereas zipper clauses are supposed to „zip up‟ and
bring to an end negotiations. It conditions that „right‟ on the mutual agreement of the
parties, which is essentially saying that if both sides agree, terms of the agreement can be
modified. Every contractual relationship can be adjusted if the contracting parties so
decide. The zipper clause is silent as to past practices and does not define what is within
the „scope‟ of representation. It would have been easy to make clear that the scope is
co-extensive with the MMBA (i.e. wages, hours and working conditions), but does not
incorporate past practices as implied terms.”
              Finally, the court stated it found “no evidence was presented from which it
can be concluded that „pre-interview access‟ or any past practice was intended to be a
part of the MOU.”

                                                  3.
             The Trial Court Did Not Err in Finding No Breach of the MOU.
              The Association does not challenge any of the trial court‟s factual findings
or legal reasoning supporting its conclusion the MOU had not been breached. The
Association does not dispute that the MOU is silent regarding the Department‟s former
preinvestigative interview access practice.
              In its opening brief, the Association argues that because providing
preinvestigative interview access to the investigative file had been a “long standing past
practice” of the Department, that practice “r[ose] to the level of an implied term of the


       8
         “„[T]he general purpose of a zipper clause is to “zip up” the collective
bargaining agreement. It insulates both parties to the agreement from a demand by the
other party to reopen negotiations with the intent of modifying or adding to the current
contract terms or otherwise changing the status quo.‟” (City of Fresno v. People ex rel.
Fresno Firefighters (1999) 71 Cal.App.4th 82, 98.)

                                              23
MOU,” as a matter of law, and by implementing the change in practice, defendants
breached the MOU‟s zipper clause. The Association‟s argument mirrors its argument,
addressed ante, that any long-standing past practice constitutes a working condition
within the meaning of the MMBA.
              The Association has failed to cite any legal authority, and we have found
none, showing that any “long standing past practice,” regardless of its nature, becomes an
implied term of the MOU, as a matter of law. The Association‟s position finds no
support in statutes, case law, public policy, or the language of the MOU itself.


                                              II.

            THE TRIAL COURT DID NOT ERR BY DENYING THE ASSOCIATION‟S
                      REQUEST FOR A PRELIMINARY INJUNCTION.
              “„Generally, the ruling on an application for a preliminary injunction rests
in the sound discretion of the trial court. The exercise of that discretion will not be
disturbed on appeal absent a showing that it has been abused. [Citations.]‟ [Citation.]
„A trial court may not grant a preliminary injunction, regardless of the balance of interim
harm, unless there is some possibility that the plaintiff would ultimately prevail on the
merits of the claim. [Citation.]‟ [Citation.]” (Hunt v. Superior Court (1999) 21 Cal.4th
984, 999; see Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.)
              Here, the trial court denied the Association‟s request for a preliminary
injunction on the ground, inter alia, that the Association failed to show a likelihood of
success on the merits. The Association contends it had demonstrated a likelihood of
success on the merits for the same reasons it relied upon in arguing the trial court erred
by failing to grant the petition. For the reasons discussed ante, the petition was without
merit. We therefore find no error in the trial court‟s denial of a preliminary injunction.




                                             24
                                DISPOSITION
          The judgment is affirmed. Respondents shall recover costs on appeal.




                                            FYBEL, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



ARONSON, J.




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