BOLING v. PUBLIC EMPLOYMENT RELATIONS BOARD

Respondent’s Petition for Review

Cal.May 22, 2017

Case No. §242034 No Fee (Gov. Code, § 6103) IN THE SUPREME COURT STATE OF CALIFORNIA CATHERINEA. BOLING; T.J. ZANE; AND STEPHENB. WILLIAMS, SUPREME COURT Petitioners, F i | - 'D) v. MAY 22 2017 PUBLIC EMPLOYMENT RELATIONS BOARD, Jorge Navarrete Clerk Respondent, CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES °°P4Y ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127; AND SAN DIEGO CITY FIREFIGHTERS LOCAL145 Real Parties in Interest. After a Decision of the Court of Appeal, Fourth Appellate District, Division One, Court of Appeal Nos. D069626 and D069630 PERB Decision No. 2464-M (PERB Case Nos. LA-CE-746-M, LA-CE- 752-M, LA-CE-755-M, and LA-CE-758-M) avd PETITION FOR REVIEW J. FELIX DE LA TORRE, General Counsel, Bar No. 204282 WENDI L. ROSS, Deputy General Counsel, Bar No. 141030 JOSEPH W. ECKHART, Board Counsel, Bar No. 284628 PUBLIC EMPLOYMENT RELATIONS BOARD 1031 18th Street Sacramento, California 95811-4124 Telephone: (916) 322-3198 Facsimile: (916) 327-6377 E-mail: PERBLitigation@perb.ca.gov Attorneysfor Respondent PUBLIC EMPLOYMENT RELATIONS BOARD Petition for Review Case No. 8242034 Case No. 8242034 No Fee (Gov. Code, § 6103) IN THE SUPREME COURT STATE OF CALIFORNIA CATHERINEA. BOLING;T.J. ZANE; AND STEPHEN B. WILLIAMS, Petitioners, Vv. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127; AND SAN DIEGO CITY FIREFIGHTERS LOCAL145 Real Parties in Interest. After a Decision of the Court of Appeal, Fourth Appellate District, Division One, Court of Appeal Nos. D069626 and D069630 PERB Decision No. 2464-M (PERB Case Nos. LA-CE-746-M, LA-CE- 752-M, LA-CE-755-M, and LA-CE-758-M) PETITION FOR REVIEW J. FELIX DE LA TORRE,General Counsel, Bar No. 204282 WENDIL. ROSS, Deputy General Counsel, Bar No. 141030 JOSEPH W. ECKHART,Board Counsel, Bar No. 284628 PUBLIC EMPLOYMENT RELATIONS BOARD 1031 18th Street Sacramento, California 95811-4124 Telephone: (916) 322-3198 Facsimile: (916) 327-6377 E-mail: PERBLitigation@perb.ca.gov Attorneysfor Respondent PUBLIC EMPLOYMENT RELATIONS BOARD Petition for Review Case No. $242034 TABLE OF CONTENTS I. ISSUES PRESENTED 0.000... eee ccccsceseeseeeeeneseneeeesseeeseessecesseeesseeeensas 9 Il. WHY REVIEW SHOULD BE GRANTED........eeececccceceessseetseees 10 Il. FACTUAL AND PROCEDURAL SUMMARY ieeesseeeetsaeeessaeeees 14 A. The Parties ........ceescccesssssessesseessseeesseeesseeseseeeeseseeeessseseasaes 14 B. The Underlying Facts 0.0... ccecceesescesseeceeceeeeeetesteeesesesseeens 16 l. Background...cccesssesesseseseecsseeeseseseeeeessseetseeecs 16 2. City Attorney Aguirre’s Legal Opinion about “Pension Measure Questions”.........cccccccscceesssssseees 17 3. The Mayor’s Pension Reform Proposal.........00..000.. 18 4, The Compromise Between MayorSanders and Councilmember DeMai0.............c:ccecssesseseessteeseeenes 20 5. 2011 Contract Negotiations...........cccceeeeeessseeeeseee 23 6. The Unions’ Demands to Meet and Confer over the CPRI ....... ec cceceeesscscesssneeeessseesseecesseeeseneees 23 7. Passage of Proposition B ..........ceeescetsesseeeseeeeseeeees 24 C. Procedural History..........cccccccsssccessseessssseeessssesseeeesseseeseee29 1. Court ProceedingS..........ccccccssccsessseseessseeseeeesssecsevens 26 2. Administrative Hearing and ALJ Decision.............. 27 3. Board Decision ........c:cccccsecceesteceesssseeeeeseessetesssssseeees 28 4. Proceedings in the Court of Appeal .........0..cccceee. 29 IV. LEGAL DISCUSSION uo... ccescecesesseeecsseeeesseeseeenteessesenees 32 A. The Court of Appeal’s application of a de novo standard of review to the Board’s legal determinations and factual findings presents an important question of law and directly conflicts with EXIStING Precedent...cc ceceesccceesseesessseeceessetessessessetesseeess 32 2 Petition for Review Case No. 8242034 l. Until now,the courts of appeal have uniformly followed this Court in applying the clearly erroneous standard of review to PERB’s interpretation of the statutes it administers. ............. 33 2. Review should be granted to secure uniformity of decision regarding the level of deference to be applied to the Board’s factual findings.......0...0.... 36 B. The Court of Appeal’s interpretation of sections 3504.5 and 3505 raises an important question regarding the scope of the MMBA’s duty to meet and COMPCT. ose eeseecessnseceeeneessasesseseccssseseeceessesesseeseecsssescseeeeses 39 1. The Court of Appeal’s interpretation upends the long-held understanding of the MMBA evidenced in nearly five decadesofjudicial and administrative decisions. ...........ccccscesseseeeeeees 4] 2. Resolution of this important question by the Court will provide critical guidance to PERB and the thousands oflocal public agencies and their employees whoare subject to the MMBA.0...eee eceenecseeeteneeseseeecetesseecssaeeessseecsseevens 43 V. CONCLUSIONoooceceecceceeseseeetseeessecseeeeecsaeeeesesssssessessesscenseess 45 EXHIBIT A - Published Opinion of the Court of Appeal EXHIBIT B - Order Denying Rehearing Petition for Review Case No. S242034 TABLE OF AUTHORITIES CALIFORNIA CASE LAW Banning Teachers Assn. v. Public EmploymentRelations Bd. (1988) 44 Cal.3d 799 ooo cccccceccessesssseessceeecsscsssesesessssesssenseeespassim Butte View Farmsv. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961 occccecccesesessseccssssesessesecessseesssecssssevreens 38 City ofPalo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271ccc ccccscsessssccsscsecessesteesseeensecssssecensvas 33 Coachella Valley Mosquito and Vector ControlDist. v. Public Employment Relations Bd. (2005) 35 Cal.4th 1072............ccc008 15, 35 Cole v. City ofOakland Residential Rent Arbitration Bd. (1992) 3 Cal.App.4th 693 oo... cccccccccsesesseccssessscssesseseeseessesesserteess 43 County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905 occ cccccccssssssecssssssesessseseesseesseseesees 33, 44 Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575 ooo eeccccceccesssssscsseesecesesecseceecssseeeeesseeseuaeas 12, 36 Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services Dist. (1975) 45 Cal.App.3d 116...eee42 Hoechst Celanese Corporation v. Franchise Tax Bd. (2001) 25 Cal4th 508000... ccecscccsecsesseeessecssesseesscssseeeessessssensereeaees 34 Holliday v. City ofModesto (1991) 229 Cal.App.3d 528 woo. cccsceeeeneeesvoteeneeeeeeeseaeeeseeeeeneeens 42 Huntington Beach Police Officers’ Assn. v. City ofHuntington Beach (1976) 58 Cal.App.3d 492 oo ccccccsscccscsscssseseesecssetsecssseeeseees 42 Indio Police Command Unit Assn. v. City ofIndio (2014) 230 Cal-App.4th 521 occeeeccscessseeseeeseeseccstseeesesssecesseeres 42 Inglewood Teachers Assn. v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767 .....ccccccecceececcsseessseeseesssseeeessecssnespassim 4 Petition for Review Case No. 8242034 Lantz v. Workers’ Compensation Appeals Bd. (2014) 226 Cal.App.4th 298 ooo.ic cecccsseccessesseesseesseeeseaeseceseersenanss 37 Long Beach Police Officer Assn. v. City ofLong Beach (1984) 156 Cal.App.3d 996 ooecccsseeeseeesseessneesseesssseeecensecntaess 42 Los Angeles County Civil Service Com. v. Super. Ct. (1978) 23 Cal.3d 55 ooceecceecccsecesecssseeceneceeecssseseseseesscecenseterseaas 44 Los Angeles County Employees Assn., Local 660 v. County ofLos - Angeles (1973) 33 Cal.App.3d Lovee ceccsssscsteescseceseeeseessssrecsieenes 43 Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191 wo... cceccccccsseeeesssssssesees 37 Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178 .....ccecccccccccessesssscetseseeees 38 Orange County Water Dist. v. Public Employment Relations Bd. (2017) 8 CalApp.5th 52eccccscssessssesesssesseeeeseesseeeessecessrasssssees 33 People ex rel. Seal Beach Police Officers Assn. v. City ofSeal Beach (1984) 36 Cal.3d 591 oo... ecccccscessteseseseessesesseeeeeeeees 11, 18, 44 People v. Childs (2013) 220 Cal.App.4th 1079 ooo... cccccccccsessseseeecssseeeessstesecenssstesenes 40 Regents ofthe Univ. of Cal. v. Public Employment Relations Bd. (1986) 41 Cal.3d 601oeeeececssseereeeesseeeesesseeeetseseseeeeeesseseees 37, 38 San Diego Housing Com. v. Public EmploymentRelations Bd. (2016) 246 Cal.App.4th Lon cccccsssecceesssesssceeesseeeeesereneasennes 33, 44 San Diego Mun. Employees Assn. v. Super. Ct. (2012) 206 Cal.App.4th 1447 ooocccccccescssesstseesseesseeeesseenees 26, 36 San Diego Teachers Assn. v. Super. Ct. (1979) 24 Cal.3d Loveececesessecessecesseeesesseseesesseesseessseeeessseeenes 13, 33 San Lorenzo Education Assn. v. Wilson (1982) 32 Cal.3d 841oececccecesecsesteeessseesseseeeeesseseseeeesseecnsesneress 33 San Mateo City School Dist. v. Public EmploymentRelations Bd. (1983) 33 Cal.3d 850 oo. cccccccsseessesseeessseeseeseecssecseceeseecenssecsesetsaee 33 5 Petition for Review Case No. 8242034 Solano County Employees’ Assn. v. County ofSolano (1982) 136 Cal.App.3d 256 wo... cccccccsccsssscesseesecssssssescessevsssscensenseesues 42 Telish v. California State Personnel Bad. (2015) 234 Cal.App.4th 1479 ooo cccccceccsccscssssesssscessessecssctssnseesees 38 Votersfor Responsible Retirement v. Bd. ofSupervisors (1994) 8 Cal4th 765... ccccccscccsecssecsesscessecsscsssssssscecssseestseenees 14, 44 Yamaha Corporation ofAmerica v. State Bd. ofEqualization (1998) 19 Cal.4th Looeeccseccsecessessessssssecsecsssesssseesseesseas 12, 30, 33 FEDERAL STATUTES 29 U.S.C. § 151 et SOQ. eeecceceessessecssessesesecesscseesessateesscsssacacentnsnaes 36 CALIFORNIA STATUTES Gov. Code, § 3500 et SQ... ceeecccccccssscesssccnscsescesscssssccsussestsesateasensseesaeese 9. Gov. Code, § 3501, subd. (b) oo...cccecscessessssssssssecessssteeecsessaseeseceens 15 Gov. Code, § 3501, subd. (C) ceccccsssssssssssssssssssesssssssssssssssesssssasesseseecee 15, 43 Gov. Code, § 3504.5 oeeesecsecsssessseeesseesceseeeccsecsesesssssseaeeeseneseeespassim Gov. Code, § 3504.5, subd. (a) oo... cece cccceescessscessssesscceesssesreesesensaeens 40, 41 Gov. Code, § 3505 oo... eccscescesssesssceeesecssseseesesssccsesssssesaseeessseaeneseasspassim Gov. Code, § 3509, subd. (D) oo... ee eeecessesssesseserseesesseesseesssccsstaseenseeans 15, 26 Gov. Code, § 3509.5iccccsccccssseceesesssccecssussassevsasecesstaetecevevstenssesaes 38, 39 Gov. Code, § 3509.5, subd. (D)cee cccccccsecssescessccsecssssesseceenseeeseeesnespassim Gov. Code, § 3520, Subd. (Db) ..cceescesescsccssesstsssesssssessesstsrestsuestesseessessssesven 32 Gov. Code, § 3520, subd. (C) ..c.cec ce eecccccccsccssssssesssessssceesetenecesecseseaecueeens 37 Gov. Code, § 3540 et S€Q. oc eececcccccessscecssecsceessesescsnsesecsaasecesetssteneceecens 34 Gov. Code, § 3542 , subd. (b) oo... ccccccccccsescessccsetsasccsssssesessasterssetanenas 32 Gov. Code, § 3542 , subd. (C) oo... cceececcccessccsssssssscessesecesessneneesssesseerssseens 37 Gov. Code, § 3564, subd. (C) wo. ccccccccccccsccssescsssesbsnsececeesensesersesnes 32,37 6 Petition for Review Case No. 8242034 Gov. Code, § 68081 occeessseeesessenseersenseseeseseseeesessesesetseesarens 31 Gov. Code, § 110000 et Seq. 0...ceeescessssessesscreesssssccssetscesersnseesensase 15 Lab. Code, § 1141 et Seq...cececeeeeseeesaeeeeseeeeeeeeesaesetssseeseseessees 35 CALIFORNIA ADMINISTRATIVE DECISIONS City ofDavis (2016) PERB Decision No. 2494-M .....ccccccscecsscccseccsseessscsecsseeeeeeees 42 City ofRiverside (2009) PERB Decision No. 2027-M.....ccscccscccssessseesseesssesssssessceeeeees 42 City ofSan Diego (Office ofthe City Attorney) (2010) PERB Decision No. 2103-M....c.ccccccccsceescesseeessesssssscesesseeaes 42 County ofContra Costa (2014) PERB Order No. Ad-410-M ....ccccesccsesessesssesssssstssesssscseeeass 44 County ofRiverside (2012) PERB Decision No. 2233-M.....cccccssccescesscecsssccsescsssersecasees 42 County ofSan Bernardino (Office ofthe Public Defender) (2015) PERB Decision No. 2423-M....c.cccccccsccccssceessssecsssssscssseesreees 42 Omnitrans (2009) PERB Decision No. 2030-M........c..ccccccccssseesesssecesscssseneceeeeeens 42 Omnitrans (2010) PERB Decision No. 2143-M ou. ccccccccsccssccesssecsssssssecssecneees 42 REGULATIONS Cal. Code Regs., tit. 8, § 32016, subd. (b) ooeesee eesceteesesseceseaees 16 Cal. Code Regs., tit. 8, § 32603, subd. (C)..... cee ceceecseessessesssesceseserseeens 27 OTHER AUTHORITIES Stats.1968, ch. 1390, p. 2728 2... cceccccssccessssescseeessseessecesetecsscsscsssaeveaseanss 42 Stats.2012, ch. 45, section 3...eeecccccscssecsseecececesscssecsavesesrsesseseeceneee 16 7 Petition for Review Case No. $242034 CALIFORNIA SECONDARY SOURCES Grodin, Public Employee Bargaining in California: The Meyers- Milias-Brown Act in the Courts (1999) 50 Hastings L.J. 717............ 4] Petition for Review Case No. $242034 To the Honorable Chief Justice and Associate Justices of the Supreme Court of California: ~ Respondent Public Employment Relations Board (PERB or Board) respectfully petitions this Court for review of the published opinion of the Court of Appeal, Fourth Appellate District, Division One,in Boling v. Public Employment Relations Board (April 11, 2017, D069626 & D069630) 5 Cal.App.Sth 853 (attached hereto and cited herein as Exhibit A). I. ISSUES PRESENTED 1, Whena final decision of the Public EmploymentRelations Board (PERB or Board)is challenged in the Court of Appeal pursuant to section 3509.5, subdivision (b), of the Meyers-Milias-Brown Act (MMBA), are the Board’s interpretation of the statutes it administers and its findings of fact subject to de novo review? 2. Is a public agency’s duty to “meet and confer”undersection 3505 of the MMBAlimited only to those situations whenits governing body proposesto take formal action affecting wages, hours, or other terms and conditions of employment pursuantto section 3504.5? ' The MMBAiscodified at Government Code section 3500 et seq. All further statutory references are to the Government Code, unless otherwise noted. Petition for Review Case No. $242034 Il. WHY REVIEW SHOULD BE GRANTED Review is necessary in this case to secure uniformity of decision and to settle important questions of law regarding the appropriate standards of review of the Board’sfinal decisions and a public agency’s duty to bargain under the MMBA.This Court has long recognizedthat “(t]he relationship of a reviewing court to an agency such as PERB, whose primary responsibility is to determine the scopeofthe statutory duty to bargain and resolve charges of unfair refusal to bargain,is 999generally one of deference.’” (Banning Teachers Assn. v. Public EmploymentRelations Bd. (1988) 44 Cal.3d 799, 804 (Banning).) The Court of Appeal below failed to heed this instruction, and proceeded to announceits owninterpretation of the statutory duty to bargain. In doing so, it issued a decision with far-reaching consequences for the MMBA and the other public sector collective bargaining statutes under the Board’s jurisdiction. In the administrative decision under review, the Board concluded that the City of San Diego (City) violated its duty to bargain under the MMBAasa result of the actions of its Mayor, Jerry Sanders, who helped draft and promote a citizens’ initiative to change pension benefits for City employees. The Mayoris the City’s chief executive andits lead labor negotiator pursuant to the City Charter. He admitted thecitizens’ initiative in this case was designedto avoid the City’s duty under People 10 Petition for Review Case No. S242034 S A L E a l e s ex rel. Seal Beach Police Officers Association v. City ofSeal Beach (1984) 36 Cal.3d 591, 602 (City ofSeal Beach) to meet and confer with the City’s recognized employee organizations before proposing to amend the City Charter. The Board rejected this attempt to skirt the MMBA’s requirements, concluding that the Mayorwasthe City’s agent, and that the City was therefore required to meet and confer with the City’s unions. In the process of reversing the Board’s decision, the Court of Appeal quoted this Court’s directives in Banning, supra, 44 Cal.3d 799, but then decided not to apply them in this case. (Exh. A, pp. 23-24). Its resulting decision raises the following issues requiring this Court’s review: First, the Court of Appeal created a conflict of authority regarding the proper standard of review when an appellate court considers the Board’s interpretation of the statutes within its jurisdiction. For nearly 35 years, this Court and the courts of appeal have held that the “clearly erroneous” standard of review applies. In particular, in Jnglewood Teachers Association v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767, 776 (Inglewood), the court applied the “clearly erroneous” standard to the Board’s interpretation of how agency principles apply to the statutes it administers. In addition, this Court and the courts of appeal have held that the Board mayinterpret its statutes in 11 Petition for Review Case No. 8242034 light of external law,1.e., legal principles that are outside of the Board’s expertise. (Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 583 (Cumero).) The Court of Appeal, however, determined that it owed no deference to the Board’s decision. It determinedthat the decision “turned almost entirely upon” legal authority outside of the Board’s expertise, including agencyprinciples. (Exh. A, pp. 43-44.) Thus, the Court of Appeal’s conclusionin this regard directly conflicts with both Inglewood-whichheld that agencyprinciples are within the Board’s expertise-and with Cumero. The Court of Appeal also introduced further uncertainty regarding these issues by becoming the first appellate court to apply the standard articulated in Yamaha Corporation ofAmerica v. State Bd. ofEqualization (1998) 19 Cal.4th 1 (Yamaha) on review of a final Board decision. Second, the Court of Appeal also created a conflict of authority regarding the standard of review of the Board’s findings of fact. Section 3509.5, subdivision (b), makes PERB’s findings of fact conclusiveif supported by substantial evidence. More than 25 years ago, the Court of Appeal in Inglewood, supra, 227 Cal.App.3d 767, 776, confirmedthat the substantial evidence test applies to PERB’s factual determinations regarding the existence of an agency relationship. By holding to the 12 Petition for Review Case No. 8242034 contrary, the Court of Appeal established another direct conflict with Inglewood. Finally, the Court of Appeal offered a sua sponte interpretation of section 3505 that radically changes the long-accepted understanding ofthe duty to meet and confer under the MMBA.In the nearly 50-year history of the MMBA,nocourt has held that a public agency’s duty to meet and confer under section 3505 is confined to only those instances when the agency’s governing body proposesto act on matters within the scope of representation. And manycourts, as well as the Board, have foundthat the duty to meet and confer was violated without any direct involvement by the agency’s governing body. The Court of Appealheld,to the contrary, that the duty arises only when the agency’s governing body proposesto take official action. In addition to the conflicts of authority presented, these questions have profound importance for PERB andits constituents underthe eight collective bargaining statutes it administers. Clearly established standards of review are critical to the Board’s role in bringing “expertise and uniformity to the delicate task of stabilizing labor relations.” (San Diego Teachers Assn. v. Super. Ct. (1979) 24 Cal.3d 1, 12.) For example, each statute contains identical language governing appellate review ofthe Board’s factual findings, including ultimate facts, and this Court hasmade 13 Petition for Review Case No. 8242034 clear that the PERBstatutes are to be construed as part of a “coherent and harmonious system of public employmentrelations laws.” (Coachella Valley Mosquito and Vector Control Dist. v. Public Employment Relations Bad. (2005) 35 Cal.4th 1072, 1090 (Coachella).) Moreover, this Court has described section 3505’s meet-and-confer requirement as the MMBA’s “centerpiece.” (Votersfor Responsible Retirement v. Bd. ofSupervisors (1994) 8 Cal.4th 765, 780.) Whether the duty to meet and confer applies to actions taken by the representatives of a public agency, or only to proposals of the agency’s governing body, is a questionthat strikes at the very heart of the MMBA. PERB rarely seeks this Court’s review of erroneously-decided appellate decisions, but given the direct conflicts in settled law and the important legal issues raised by the Court of Appeal’s wide-ranging decision, PERB respectfully requests that this Court grant review. lil. FACTUAL AND PROCEDURAL SUMMARY A. The Parties The Boardis the expert public sector labor agencythat, since, 2001, has been vested with exclusiveinitial jurisdiction to interpret the MMBA, including determining whether charges of unfair practices are 14 Petition for Review Case No. 8242034 Justified and, if so, what remedyis necessary to effectuate the purposes of the Act. (§ 3509, subd. (b); Coachella, supra, 35 Cal.4th 1072, 1077.) The City is a “public agency” subject to the MMBA.(§ 3501, subd. (c); AR:III:842.)° The City was the respondentin the proceedings before PERB andthe petitioner in the Court of Appeal in Case No. D069630. The San Diego Municipal Employees Association (SDMEA), the Deputy City Attorneys Association of San Diego (DCAA), the American Federation of State, County and Municipal Employees, AFL-CIO, Local 127 (AFSCME), and the San Diego City Firefighters, Local 145, IAFF, AFL-CIO (Firefighters) (collectively, the Unions) are each a “recognized employee organization”(§ 3501, subdivision (b)), and an “‘exclusive representative” (Cal. Code Regs., tit. 8, § 32016, subd. (b)), representing an appropriate unit of City employees. (AR:II:842; V:1193; VII:1777, 1814.) The Unions were the charging parties in the consolidated proceedings before PERB andrealparties in interest in the Court of Appeal. * Coachella identifies sevenofthestatutes currently administered by PERB. (/d. at pp. 1085-1086.) An eighth statute, the In-Home Supportive Services Employer-Employee Relations Act (§ 110000 et seq.), was enacted by Statutes 2012, chapter 45, section 3. 3 Citations to the 24-volume Administrative Record are abbreviated as ““AR:[volume number]:[page number].” 15 Petition for Review Case No. S242034 Catherine A. Boling (Boling), T.J. Zane (Zane), and Stephen B. Williams (Williams) (collectively, the Ballot Proponents) werethe official proponents of an initiative to modify City employees’ pension benefits, referred to as the Comprehensive Pension Reform Initiative (CPRI) or Proposition B. Although they did notparticipate as parties in the PERB administrative proceedings, they filed their own petition for writ of extraordinary relief in the Court of Appeal, Case No. D069626, and were - namedasreal parties in interest in the City’s petition, Case No. D069630.* B. The Underlying Facts 1. Background The City is a charter city governed by a nine-memberCity Council and a “strong Mayor.” (AR:XVII:4492-4497,) Underthe City Charter, the Mayoris the chief executive officer, responsible for the City’s day-to- day operations. (AR:XVII:4492-4493 [Charter, § 265]; XIII:3349.) The Mayorhas no vote on the City Council, but may recommendlegislation and veto certain Council actions. (AR:XVII:4493, 4498-4500.) *PERB movedto dismiss the Ballot Proponents as real parties in interest in Case No. D069630, and movedto dismiss the petition in Case No. D069626. The Court of Appeal denied the former motion and deemed the latter motion-as wellas the issues raised by the Ballot Proponents’ petition-moot. (Exh.A,p. 22.) 16 Petition for Review Case No. 8242034 Underthe strong mayorsystem, Sanders was the City’s lead negotiator in collective bargaining withits nine represented bargaining units. (AR:XIII:3349-3350.) In this role, Mayor Sanders developed the City’s negotiating strategy andinitial bargaining proposals. (AR:XIII:3350-3351.) In practice, the Mayor briefed the City Council and obtained its agreement onhis strategy and proposals, before presenting them to the Unions. (AR:XII1:3349-3352.) In two instances before this dispute arose, in 2006 and 2008, Mayor Sanders developed ballot measures affecting matters within the scope of representation; in both instances he met and conferred with the Unions before attempting to place them on the ballot. (AR:XIII:3345; XII:3194- 3197, XII:3206-3207, 3212-3213, 3217-3219.) 2. City Attorney Aguirre’s Legal Opinion about “Pension Measure Questions” . During the 2008 ballot measure negotiations, then-City Attorney Michael Aguirre (Aguirre) issued a legal memorandum explaining the City’s bargaining obligations with respect to pension-related ballot measures. (AR:XVIII:4708-4717.) Aguirre concluded that if the Mayor proposeda citizens’ initiative affecting terms and conditions of employment, the City would be required to negotiate with its unions over the proposal, because the Mayor would “legally be considered as acting with apparent governmental authority.” (AR:XVHI:4710.) 17 Petition for Review Case No. 8242034 City Chief Operating Officer Jay Goldstone (Goldstone), who reports directly to the Mayor,testified that during the 2008 negotiations, the Aguirre memorandum prompted Mayor Sandersto presenthis ballot proposal to the City Council, rather than to pursuea citizens’ initiative. (AR:XIV:3627.) 3. The Mayor’s Pension Reform Proposal In late 2010, the Mayor determined, with his staff, that one of his primary goals was fixing what he perceived as the unsustainable cost of the defined benefit pension for City employees. (AR:XIII:3306-3307, 3390-3391; XIV:3532-3533.) To meetthis goal, he proposedplacingall newly-hired employees, except for police andfirefighters, in a 401(k)- style defined contribution plan. (AR:XIII:3308-3309.) He believedthis change wasnecessary to eliminate the City’s $73 million structural deficit before he left office in 2012. (AR:XIII:3308.) After discussions with his City staff, Mayor Sanders decided to pursue his pension reform proposalasa citizens’ initiative, rather than submit it to the City Council. (XIV:3653-3656.) He acknowledgedthat one of his reasons for doing so wasto avoid negotiating with the Unions over the proposal as required by City ofSeal Beach, supra, 36 Cal.3d 591. (AR:XIII:3344) On November19, 2010, Mayor Sanders unveiled his proposal to the public. The Mayor’s Communications Director reviewed and 18 Petition for Review Case No. 8242034 approved an announcement,titled “Mayor Will Push Ballot Measure to Eliminate Traditional Pensions for New Hires at City,” which appeared on the Mayor’s section of the City’s website, and was released to the media as a “Mayor Jerry Sanders Fact Sheet” bearing the City’s seal. (AR:XV:3911-3912; XVIU:4742-4743, 4745-4747.) The Mayor’s staff also announcedthe plan in an e-mail messagetitled “Rethinking City Government,” which wassent to approximately 3,000 to 5,000 community members using the Mayor’s official City e-mail address (JerrySanders@sandiego.gov). (AR:XV:3910-3912; XXMI:5747-5749.) The same day, the Mayor, accompanied by Councilmember Kevin Faulconer, Goldstone, and City Attorney Jan Goldsmith (Goldsmith), held a press conference in his office at City Hall to announcehis proposal. (AR:XJII:33 12-3313.) The Mayor’s Communications Director prepared his talking points for the press conference. (AR:XV:3913-3914.) Overthe next two months, the Mayorandhisstaff, particularly his CommunicationsDirector, continued to develop his pension reform proposal and publicize his efforts in the media. (AR:XVIII:4772; XXII:5923-5924, 5926; XV:3923-3925; XVIII:4788.) Mayor Sanders acknowledged that he never directed his Communications Director not to engage in theseactivities. (AR:XIII:3321-3322.) . 19 Petition for Review Case No. 8242034 S S e S E S B o e On January 12, 2011, the Mayor gave his annual “State of the City” address, as mandated by the City Charter. (AR:XVIII:4816.) In the speech, the Mayor vowed to “complete our financial reforms and eliminate ourstructural budgetdeficit,” proposing the “bold step” of “creating a 401(k)-style plan for future employees” to “contain pension costs and restore sanity to a situation confronting every big city.” (AR:XIX:4832.) Later in the speech, the Mayor explainedthat, acting “as private citizens,” “Councilman Kevin Faulconer,the city attorney andI will soon bring to voters an initiative to enact a 401(k)-style plan.” (AR:XIX:4836.) Later that day, the Mayor’s office issued a press release publicizing, among other things, Mayor Sanders’ “vow[] to push forward his ballot initiative to replace pensions with a 401k-type plan for most new city hires.” (AR:XVIII:4816.) Following the speech, the Mayor continuedhis publicity efforts with appearances on local and national broadcast media. (AR:XV:3937, 3940-3942.) The Mayor’s talking points for these appearanceswereall prepared by his City-paid staff. (/bid.) 4. The Compromise Between Mayor Sanders and Councilmember DeMaio City Councilmember Carl DeMaio (DeMaio) had similarly proposeda citizens’ initiative to reform the City’s finances. (AR:XVI:4103-4192.) Like Mayor Sanders, DeMaio’s proposal included 20 Petition for Review Case No. 8242034 replacing defined benefit pensions with 401(k)-style plans for newly hired employees. (AR:XVI:4157.) DeMaio’s plan differed in that it included a “hard cap” on pensionable pay and did not exemptpolice andfirefighters. (AR:XITI:3484.) At a March 24, 2011 press conference, the Mayor and Faulconer announcedtheir intention to move forward with their owninitiative, which now includeda cap ontotal City payroll. (AR:XV:3948-3949; XXIII:5828-5830.) The Mayor’s remarks for the conference were prepared by his City staff. (AR:XV:3950.) At a meeting in March 2011, representatives of the Lincoln Club and the San Diego Taxpayers Association told the Mayorthat only one initiative should appear on the ballot, and that they intended to support DeMaio’s plan. (AR:XIII:3480-3481; XIV:3574-3575.) This prompted the supporters of the two plans to meet and develop a compromise initiative. The Mayor personally attended some of these meetings, as did three members of his City-paidstaff. (AR:XIII:3401-3402; XIV:3570- 3576, 3676-3679; XV:3812-3814.) Most notably, the resulting compromise excludedpolice from the 401(k)-style plan, an exclusion that the Mayorinsisted upon. (AR:XIX:5013-5021; XII:3423; AIV:3595.) The Mayor’s Chief Operating Officer and Chief of Staff received drafts of 21 Petition for Review Case No. S242034 the initiative and provided comments on the Mayor’s behalf. (AR:XIV:3585-3588, 3680-3682.) On April 4, 2011, the Ballot Proponents filed with the City Clerk a notice of intent to circulate a petition-the CPRI-to amendthe City Charter. (AR:XIX:5009-5021.) The following day, April 5, 2011, Mayor Sanders conducted a press conference in the concoursearea directly outside City Hall to announce the filing of the CPRI petition. (AR:XIII:3419.) Also present were Faulconer, DeMaio, Goldsmith, Boling, and Zane. (AR:XIII:3394-3396.) Although the Mayortestified that he appeared in his private capacity, and assumedthe same wastrue for Goldsmith, there is no evidencethatthis fact was communicated to the press or the public at the time. (AR:XIII:3427-3428.) In fact, Mayor Sanders touted his previousefforts to achieve pension reform as Mayor, and described the CPRIas “the next step.” (AR:XXI:5515.) Throughout the summerandfall of 2011, while signatures were being gathered for the CPRI, the Mayor’s City-paid staff continued the publicity effort by arranging for interviews and appearanceswith print and broadcast media, providing quotes to the media, and preparing talking points for Sanders’ speaking appearances. (AR:XV:3820-3821: XXIIU:5843, 5845, 5837-5838, 5840-5841.) In addition, the Mayor’s staff 22 Petition for Review Case No. $242034 prepared a message from the Mayor-identified three times as “Mayor Jerry Sanders’”-to membersof the San Diego Regional Chamber of Commerce, whichsolicited financial and other support for the signature- gathering effort. (AR:XIII:3468-3470; XX:5135.) 5. 2011 Contract Negotiations Between January and May 2011, the City, led by the Mayor, was negotiating successor memoranda of understanding (MOUs) with each of the six unions representing City employees. (AR:XIJI:3223-3224.) The City and the Unions werealso separately negotiating limits on retiree health benefits. (AR:XII:3224.) Each of the Unions agreedto significant concessions limiting retiree health benefits, which were subsequently approved bythe City Council in May 2011. (AR:XIX:5074-5079.) 6. The Unions’ Demands to Meet and Confer over the CPRI In a letter dated July 15, 2011, Ann Smith (Smith), an attorney representing SDMEA, demanded that the Mayor bargain overhis “much publicized ‘Pension Reform’ Ballot Initiative.” (AR:XIX:5109-5110.) The letter stated that if the Mayor did not present his own bargaining proposal, SDMEA would assumethat the contents of the CPRI werehis opening proposal. (AR:XIX:5109.) Goldsmith responded in a letter dated August 16, 2011, copies of which were sent to the Mayor and membersofthe City Council. 23 Petition for Review Case No. 8242034 (AR:XX:5115-5117.) Goldsmith denied that the City Council was obligated to negotiate with SDMEA. (AR:XX:5117.) On September 9, 2011, Smith respondedbyletter, asserting that the Mayorhad made a “determination of policyfor this City related to mandatory subjects of bargaining” and sponsored “this ‘pension reform’ initiative in furtherance of the City’s interest[s] as he defines them.” (AR:XX:5123-5126, emphasis in original.) Copies of Smith’s letter were sent to the City Council. (AR:XX:5126.) Smith and Goldsmith exchanged two more rounds of correspondenceregarding the issue. (AR:XX:5128-5130, 5142-5144, 5151-5155, 5157-5162.) In one letter, Goldsmith disagreed with the conclusion in the 2008 Aguirre memorandum that the Mayor would be deemedto be acting with the apparent authority of the City if he proposed a citizens’ initiative. (AR:XX:5152-5155.) The City also rejected demands to bargain by DCAA,the Firefighters, and AFSCME. (AR:XV:4016- 4017; XXIH:5908, 5910, 5913, 5915.) 7. Passage of Proposition B On September30, 2011, signed petitions in support of the CPRI were submitted to the City Clerk. (AR:XVI:4065.) The County Registrar of Voters then determined that the numberof signatures wassufficient to qualify the CPRI for the ballot. (AR:XX:5164.) 24 Petition for Review Case No. 8242034 On December5, 2011, the City Council adopted a resolution declaring its intention to submit the CPRIto voters at the June 2012 election. (AR:XX:5178-5180.) On January 30, 2012, the City Council adopted a resolution directing the preparation ofthe title, summary, and analyses of the CPRI for the voter pamphlet. (AR:XX:5184-5185.) The CPRI appeared on the June 2012 election ballot as Proposition B. The published argument in favor of Proposition B wassigned by, amongothers, “Mayor Jerry Sanders,” Faulconer, and DeMaio. (AR:XX:5193.) The initiative was subsequently approved bythe voters. (AR:XVI:4094-4096.) At the election night celebration hosted by the Lincoln Club, the Mayor was the keynote speaker, referring to Proposition B as the latest in a list of City fiscal reforms he had helped achieve, including the ballot measures in 2006 and the pension reformsin 2008, both of which had been the subject of negotiations with the Unions. (AR:XXI:5521.) C. Procedural History In early 2012, before the election, each Unionfiled an unfair practice charge alleging that the City had violated the MMBAbyrefusing to bargain before placing the CPRI on the ballot. (AR:I:3-237; TI:579- 589, 609-613; IV:935-939.) In February 2012, and thereafter, PERB’s 25 Petition for Review Case No. 8242034 Office of the General Counsel issued an administrative complaint in each case with the following relevant allegations: e “chief labor negotiator San Diego City Mayor Jerry Sanders” wasthe City’s agent, who had“co-authored, developed, sponsored, promoted, funded, and implementeda pension reform initiative, referred to as the ‘Comprehensive Pension 999,Reform Initiative for San Diego’”; e the City refused demands to bargain and placed the CPRI on the ballot for the June 5, 2012 election; and e by this conduct the City “failed and refused to meet and confer in good faith with Charging Party in violation of Government Code section 3505 and committed an unfair practice under Government Code section 3509(b) and PERB Regulation 32603(c).” (AR:II:572-573, 835-836; V:1180-1182, 1407-1408.) 1. Court Proceedings Shortly after filing its unfair practice charge, SDMEArequested that PERB seek to enjoin the City from placing Proposition B on the ballot until it had met and conferred with SDMEA. (AR:1I:246-249.) PERB’s efforts to obtain temporary injunctiverelief in superior court were unsuccessful, while the City filed a cross-complaint against PERB and obtained a stay of PERB’s administrative proceedings. (See San Diego Mun. Employees Assn. v. Super. Ct. (2012) 206 Cal.App.4th 1447, 1453- 1455 (San Diego Mun. Employees Assn.).) The Court of Appeallater lifted the stay, and the City’s subsequentpetitions for rehearing by the 26 Petition for Review Case No. 8242034 Court of Appealand for review by this Court were denied. (Id.at p. 1466, rehg. den. July 3, 2012, review den. Aug. 29, 2012.) 2. Administrative Hearing and ALJ Decision After the administrative complaints were issued,all four cases were assigned to a PERB administrative law judge (ALJ), who ordered them consolidated for hearing. (AR:VII:1911-1913.) After the Court of Appeal lifted the stay, the ALJ presided over a four-day administrative hearing. (AR:XII-XV.) After two roundsof post-hearing briefs from the City and the Unions, the ALJ issued a thorough 58-page proposed decision finding that the City had violated the MMBA. (AR:X:2613-2675.) The ALJ found that the Mayor, in his capacity as the City’s chief executive officer and chief labor negotiator, made a policy decision to alter terms and conditions of employment of employees represented by the Unions, and took concrete steps to implementthat decision. (AR:X:2650-2652.) The ALJ also found that the Mayor wasacting as the City’s agent when he announced the decision to pursue a pension reform initiative that eventually resulted in Proposition B, and that the City Council, by its action and inaction, hadratified both the Mayor’s decision andhis refusal to meet and confer with the Unions. (AR:X:2648-2661.) Among the agency theories relied on by the ALJ wasthat of statutory agency-that the Mayor was an “other representative” designated by the City, who 27 Petition for Review Case No. 8242034 therefore had a duty to meet and confer under section 3505. (AR:X1:2649-2650.) Because the ALJ found that the impetus for the pension reform measure originated within the offices of City government, he rejected the City’s defense that Proposition B was a “private”citizens’ initiative exempt from the MMBA’s meet-and-confer requirements. (AR:X:2661-2667.) The ALJ’s proposed order directed the City to rescind the provisions of Proposition B andrestore the status quo ante. (AR:X:2670-2671.) The City filed exceptions to the proposed decision with the Boarditself. (AR:X:2685-2724.) 3. Board Decision The Board’s decision largely affirmed the ALJ’s proposed decision, but modified the proposed order. (AR:XI:2979-3103.) The Board agreed with the ALJ’s conclusionsthat the City wasliable for the Mayor’s conduct, and that suchliability did not conflict with the citizens’ | initiative right. (AR:XI:3034-3035.) The Board explainedthat: for the City’s elected officials, and particularly the Mayoras the chief laborrelations official, to use the dual authority of the City Council and the electorate to obtain additional concessions on top of those already surrendered by the Unions on these same subjects raises questions about what incentive the Unions have to agree to anything. (AR:X1:3038-3039.) 28 Petition for Review Case No. 8242034 The Board also expressly rejected the contention that the City had no authority to meet and confer with the Unions because it was obligated to place the CPRI on the ballot without alteration. (AR:XI:3034 & fn. 23.) Echoing the ALJ, the Board noted that City had previously placed competing measureson the ballot and that the Unions’ request for bargaining reasonably contemplated such alternatives. (bid.) Despite affirming the ALJ’s conclusion that the City violated section 3505 byfailing to meet and confer, the Board did not order the City to rescind Proposition B. (AR:XI:3023.) The Board concluded that the authority to do so lies exclusively in the courts, and therefore crafted a make whole remedythat did not include rescission of Proposition B. (AR:X1:3023-3025.) 4. Proceedings in the Court of Appeal Invoking section 3509.5, subdivision (b), the City and the Ballot Proponents filed separate petitions for writ of extraordinaryrelief challenging the Board’s decision. Both cases were fully briefed, including three amicusbriefs on behalf of the City and answers to each by PERB and the Unions. On March 8, 2017, nine days before oral argument, the Court of Appealissued a letter directing the parties, among other things, to be prepared to discuss the application of section 3504.5 to the facts of this case and the standard of review of the Board’s final decision accordingto 29 Petition for Review Case No. 8242034 Yamaha, supra, 19 Cal.4th 1. This letter marked the first time either section 3504.5 or Yamaha had beencited in this case. On April 11, 2017, the Court of Appeal issued its opinion annulling the Board’s decision. Citing Yamaha, the Court of Appeal determined that the Board’s decision wassubject to de novo review, becauseit believed the Board wasnot interpreting any statutes within its administrative expertise. (Exh. A, pp. 43-44.) The Court of Appealalso determined that the Board’s findings of fact regarding the existence of an agency relationship were notentitled to any deference under the substantial evidence test, because,it believed, the facts were “undisputed.” (Ud. at p. 44, fn. 34.) And, despiteits separate conclusion that the Board’s decision did not turn on an interpretation of any statute within its expertise (id. at p. 43-44), the Court of Appeal expressly considered and rejected the Board’s view that section 3505 required a public agency’s “other representatives” to meet and confer in goodfaith (id. at p. 47, fn. 37). To do so, the Court of Appeal relied on a different MMBAprovision, section 3504.5. It concluded that this section specified “when meet-and-confer obligations are triggered,” while section 3505 only “describes how that process should be accomplished, including who ... Shall participate on behalf of the governing body.” (/bid., emphasis in original.) This refusal to give any deference to the Board, and the 30 Petition for Review Case No. 8242034 resulting narrow interpretation of section 3505, led the Court of Appeal to reject the Board’s conclusionsthat the City was required to bargain with the Unionsas a result of the conduct of Mayor Sanders. The Boardfiled a timely petition for rehearing (as did the Unions), pointing out that the Court of Appeal had decided the case based on two issues which the parties were not given the opportunity to brief, as required by section 68081: the standard of review under Yamaha and the application of section 3504.5. (PERB’s Petition for Rehearing,pp. 7-8.) The Boardalso called to the Court of Appeal’s attention its failure to address the Board’s conclusion that the City could have negotiated an alternative ballot measure with the Unions without altering the CPRI itself. Ud. at pp. 23-25.) Accordingly, the Board argued, the case should have been remanded for PERB to decide whether the City’s refusal to negotiate over an alternative measure was a standaloneviolation of the MMBA.(id. at pp. 26-28.) The Court of Appeal summarily denied both petitions for rehearing, and its opinion becamefinal on May 11, 2017. (See Exhibit B attached hereto.) 31 Petition for Review Case No. 8242034 IV. LEGAL DISCUSSION A. The Court of Appeal’s application of a de novo standard of review to the Board’s legal determinations and factual findings presents an important question of law and directly conflicts with existing precedent. It is vitally important for PERB andits constituents (public employers, employee organizations, and employees) that the standards of review of the Board’s decisions be clearly established. Like the MMBA, each ofthe statutes administered by PERB provides for judicial review of a final Board decision bypetition for writ of extraordinaryrelief. (See, e.g., § 3520, subd. (b); § 3542, subd. (b); § 3564, subd. (b).) The rationale for the deferential standards of review that apply in these casesisthat: PERB is “one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” (Banning, supra, 44 Cal.3d 799, 804.) If the Court of Appeal’s decision below is allowed to stand, the level of deference applied to the Board’s decisions will vary depending on whichconflicting authority an appellate court decides to follow.. Moreover, it can be expected that the numberofpetitions challenging the Board’s final decisions will markedly increase if PERB’s constituents believe that the decisions of the expert Board are no longerentitled to deference. This can only serve to undermine the Board’s role in bringing 32 Petition for Review Case No. 8242034 “expertise and uniformity to the delicate task of stabilizing labor relations.” (San Diego Teachers Assn. v. Super. Ct., supra, 24 Cal.3d 1, 12.) Therefore, this Court’s resolution of these questionsis critical. 1. Until now,the courts of appeal have uniformly followed this Court in applying the clearly erroneous standard of review to PERB’s interpretation of the statutesit administers. For 35 years, this Court and the courts of appeal haveconsistently applied the clearly erroneous standard when reviewing the Board’s interpretation of the statutes within its jurisdiction.’ In fact, just last year Division One of the Fourth Appellate District acknowledged: Althoughstatutory interpretation is ultimately a judicial function, the Board is vestedwith the authority to interpret the Act. .... Consequently, we must defer to the Board’s interpretation of the Act unless the Board’s interpretation is clearly erroneous. (San Diego Housing Com. v. Public Employment Relations Bd. (2016) 246 Cal.App.4th 1, 12 (San Diego Housing), citation omitted.) In this case, however, relying on Yamaha, supra, 19 Cal.4th 1, the Court of Appeal determined that it was not required to defer to the ° County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 922; Banning, supra, 44 Cal.3d 799, 804; San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856; San Lorenzo Education Assn. v. Wilson (1982) 32 Cal.3d 841, 850; Orange County Water Dist. v. Public Employment Relations Bd. (2017) 8 Cal.App.5th 52, 60-61; City ofPalo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.Sth 1271, 1287-1288; Inglewood, supra, 227 Cal.App.3d 767, 776. 33 Petition for Review Case No. 8242034 Board’s interpretation of the MMBAatall. (Exh. A, p. 43.)° The Court of Appeal’s justification for applying Yamaha wasits view that the Board’s decision “turned almost entirely upon”legal principles thatit believed were outside of the Board’s expertise. (Exh. A, pp. 43-44.) This reasoning created at least two conflicts with settled authority. First, the Court of Appeal concludedthat agency principles are beyond the Board’s expertise. This holding directly conflicts with Inglewood,supra, 227 Cal.App.3d 767.’ Inglewood makesclearthat determining when an employeris liable for the conductofits agents is central to PERB’srole in interpreting a collective bargaining statute-in that case, the Educational EmploymentRelations Act (§ 3540 et seq. ° In Yamaha, the Court held that an agency’s advisory opinion was persuasive but not binding, and that its persuasive poweris “contextual” (id. at p. 7) or “situational”(id. at p. 12). Justice Mosk’s concurrence explained, however, that the majority did “not purport to changethe well- established ... body of law pertaining to judicial review of administrative rulings, but merely to attempt to clarify that law.” (/d. at p. 16.) Moreover, following Yamaha, the Supreme Court in Hoechst Celanese Corporation v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 524-525, acknowledged the persuasiveness of statutory interpretations contained in precedential agency decisionsthat are the result of adversarial, adjudicatory processes. This is precisely the type of administrative processthat led to the Board’s decisionin this case. ’ This conclusion wasalso incorrect for another reason. In its haste to find groundsfor de novo review, the Court of Appeal apparently overlookedthe fact that the Board expressly relied on the language of section 3505 to conclude that the Mayor wasa statutory agent-an “other representative”-of the City. (AR:XI:3078-3079.) 34 Petition for Review Case No. 8242034 [EERA]).® The Inglewood court held that PERB’s application of agency principles-including those that might be considered “common law” theories-is a matter squarely within the Board’s purview,and subject to the clearly erroneous standard of review. (/d. at pp. 776, 778.) In particular, the court noted that EERA does not mandate the application of the same agencyprinciples that apply under the National Labor Relations Act (29 U.S.C. § 151 et seq.) or the Agricultural Labor Relations Act (Lab. Code,§ 1141 et seq.). Ud. at p. 778.) It concludedthat this difference “supports PERB’s conclusion that the Legislature meant for PERBto decide what appropriate standard of agency should be applied in the context of the EERA.” (/bid.) Second, the Court of Appeal concluded that the Board’s interpretation of the MMBAis owed no deference whena casealso involves legal principles outside of the Board’s expertise.” This conflicts | with the well-settled principle that PERB may construe its statutes in light of “external law” when necessary to resolve unfair practice allegations * Although Jnglewood arose under EERA,rather than the MMBA, this Court has noted that the purpose of the Legislature’s decision to entrust PERB with the administration of the MMBAwasto create a “coherent and harmonious system of public employmentrelations laws.” (Coachella, supra, 35 Cal.4th 1072, 1090.) ° In addition to agency principles, which the Court of Appeal erroneously viewed as outside the Board’s expertise, as explained above, the Court of Appeal cited the presence ofissues involving the City Charter, elections law, and constitutional law. (Exh. A, p. 43.) 35 Petition for Review Case No. 8242034 and to avoid conflicts with those other laws. (Cumero, supra, 49 Cal.3d 575, 583; San Diego Mun. Employees Assn., supra, 206 Cal.App.4th 1447, 1458.) By holding that PERB is notentitled to deference if a case presents questions under other law, the Court of Appeal has created a conflict with Cumero, as well as the long line of cases applying the “clearly erroneous” standard of review. Thus, the Court of Appeal’s decision in this case established direct conflicts regarding the standard of review to be applied when:(1) the Board determines how agencyprinciples apply to the statutes within its jurisdiction; and (2) a case involveslegal principles (such as constitutional provisions) outside the Board’s expertise. This Court should grant review to address this important issue and resolvethese conflicts. 2. Review should be granted to secure uniformity of decision regarding the level of deference to be applied to the Board’s factual findings. The Court of Appeal acknowledged that the agencyissues in this case presented potential questions of fact, on which it would typically owe PERB deference. (Exh.A,p. 44, fn. 34.) It peremptorily concluded, however, that the “material facts are undisputed,” and that PERB was therefore not entitled to deference. (/bid.) This conclusion presents a clear conflict not only with the applicable statutory language of section. 3509.5, subdivision (b), but also with longstanding precedentthat the - 36 Petition for Review Case No. 8242034 Board’s factual findings concerning an agency relationship are owed deference. (Inglewood, supra, 227 Cal.App.3d 767, 781.) Section 3509.5, subdivision (b), expressly provides, “The findings of the board with respect to questions offact, including ultimate facts,if supported by substantial evidence on the record considered as a whole, shall be conclusive.”’® It is well settled that this standard applies to the Board’s factual findings regarding whether an agencyrelationship exists. . Unglewood, supra, 227 Cal.App.3d 767, 781.) And, contrary to the Court of Appeal’s reasoning, it has been applied even when the Board’s decision is based on undisputed facts. (Moreno Valley Unified School Dist.v. Public EmploymentRelations Bd. (1983) 142 Cal.App.3d 191, 196.) Underthe substantial evidencetest, the courts may not reweigh the evidence presented to PERB. (dnglewood, supra, 227 Cal.App.3d 767, 781.) “[A] reviewing court may not substitute its judgment for that of the Board.” (Regents ofthe Univ. of Cal. vy. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 617.) Moreover, a question of factis presented whereconflicting inferences can be drawn from undisputed facts (Lantz v. Workers’ Compensation Appeals Bd. (2014) 226 Cal.App.4th 298, 316- 317), and the reviewing court is not permitted to draw its own inferences ” Identical language is found in the judicial review provisions of the other statutes within PERB’s jurisdiction. (See, e.g., § 3520, subd. (c); § 3542 , subd.(c); § 3564, subd.(c).) 37 Petition for Review Case No. 8242034 from the evidence submitted to PERB (Regents ofthe Univ. of Cal. v. Public Employment Relations Bd., supra, at p. 617). The substantial evidence test has important implications for appellate review. Underthis test, the complaining party bears the burden of presenting all the material evidence on a particular disputed point, not just the evidence that supports its own view of the facts. (Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 187, fn.4; Telish v. California State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1497.) This is consistent with the petitioner’s overall burden in a petition for writ of extraordinary relief. (See Butte - View Farmsv. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 966, fn. 1.) By holding that the substantial evidence standard may be discarded whenthe reviewing court believes the facts are undisputed, the Court of Appeal has fundamentally changed the judicial review processestablished by the Legislature in section 3509.5. That process is intended to be deferential toward PERB. (Banning, supra, 44 Cal.3d 799, 804.) However, according to the Court of Appeal’s decision below,if the court deemsthe facts undisputed,it is free to relieve the petitioner of its burden under the substantial evidencetest, rely on evidencethatis not in the administrative record, and draw contrary inferences based on the 38 Petition for Review Case No. 8242034 evidence. This Court’s review is needed to correct this erroneous view of section 3509.5’s substantial evidence test, and to clarify this important issue for future cases arising under section 3509.5 andits counterpart provisions in the other statutes administered by PERB. B. The Court of Appeal’s interpretation of sections 3504.5 and 3505 raises an important question regarding the scopeof the MMBA’s duty to meet and confer. Without the benefit of any briefing by the parties, the Court of Appealarrived at.a new interpretation of the MMBAthat dramatically limits the circumstances in which a public agency owes a duty to meet and confer under the MMBA.Specifically, the court decided that section 3504.5 specifies ““when” the meet-and-confer duty arises, whereas section 3505 merely identifies “who” should conduct the meet and confer process. (Exh. A, p. 47, fn. 37.) This interpretation raises an important question requiring this Court’s resolution, because it conflicts with the long-settled understanding of the MMBAreflected in decades of reported decisions. The Court of Appeal located this limitation on the duty to meet and confer imposed bysection 3505’ in the precedingsection, 3504.5," '' As relevanthere, section 3505 provides: The governing body ofa public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body, shall meet and confer in good faith regarding wages, hours, and other terms 39 . Petition for Review Case No. 8242034 claiming to have discovered it in the MMBA’s “express terms.” (Exh. A, p. 34.)'° Applying this narrow interpretation to the facts of this case, the Court of Appealproceeded to reject the remainder of the Board’s and conditions of employment with representatives of such recognized employee organizations. .... '° The relevant portion of section 3504.5 is subdivision (a), which provides: Except in cases of emergency as provided in this section, the governing body of a public agency, and boards and commissions designated by law or by the governing body of a public agency, 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 proposedto be adopted by the governing body or the designated boards and commissions and shall give the recognized employee organization the opportunity to meet with the governing bodyor the boards and commissions. ? The court did not explain whyit equated the term “meet” in section 3504.5 with the term “meet and confer in good faith”in section 3505. This key difference between the two provisionsindicates that the Legislature did not intend for section 3504.5 to limit the duty to meet and confer under section 3505. (See People v. Childs (2013) 220 Cal.App.4th 1079, 1102.) In fact, shortly after the MMBAwasenacted, then-Professor Grodin suggested that section 3504.5 was intended to codify a different practice that existed before the MMBAimposed the duty to meet and confer. (Grodin, Public Employee Bargaining in California: The Meyers- Milias-Brown Act in the Courts (1999) 50 Hastings L.J. 717, 752-753, footnote omitted [originally published (1972) 23 Hastings L.J. 719].) 40 Petition for Review Case No. 8242034 decision. It held, among other things, that PERB erred by: (1) relying on section 3505’s reference to “other representatives” to conclude that the Mayor wasa Statutory agent of the City (Exh. A,p. 47, fn. 37); and (2) relying on cases decided underother laborrelations statutes holding that an employer may be liable for the unapproved conductofits agents (id. at pp. 50-51). In fact, the Court of Appeal appearedto foreclose any reliance on agency principles to find a violation of the duty to meet and confer: [C]ompliance with the meet-and-confer mandate of section 3504.5 [ Jis triggered only whenthere is some action “proposedto be adopted by the governing body” (§ 3504.5, subd. (a)) rather than some action proposed by a putative agent of the governing body. (Id. at p. 59, fn. 49.) 1. The Court of Appeal’s interpretation upendsthe long- held understanding of the MMBAevidencedin nearly five decades of judicial and administrative decisions. Bycrafting this narrow interpretation of sections 3504.5 and 3505, the Court of Appeal has undermined the accepted understanding of the MMBA. The Court of Appealis thefirst court in 49 years to find that section 3504.5 limits the duty to meet and confer undersection 3505."* In that time, PERB and the courts have found numerous public agencies in '* Therelevant language ofsection 3504.5 has been part of the MMBAsinceits original enactment in 1968. (Stats.1968, ch. 1390, p. 2728.) . 4] Petition for Review Case No. 8242034 ~a P E R E R A a S a N e R he A violation of section 3505 as a result of actions undertaken without any formal governing body action.'> The courts have also heldthat a recognized employee organization canitself trigger the duty to bargain, by demandingto do so regarding a negotiable subject. (Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services Dist. (1975) 45 Cal.App.3d 116, 118; Los Angeles County Employees Assn., Local 660 vy. "° See, for instance, Indio Police Command Unit Assn.v. City of Indio (2014) 230 Cal.App.4th 521, 540 [police chief's departmental reorganization plan]; Holliday v. City ofModesto (1991) 229 Cal.App.3d 528, 540 [failure to bargain before fire chief imposed a drug testing requirement]; Long Beach Police Officer Assn. v. City ofLong Beach (1984) 156 Cal.App.3d 996, 1011 [police chief changedpractice relating to officer reports regarding the use of force]; Solano County Employees’ Assn. v. County ofSolano (1982) 136 Cal.App.3d 256, 265 [work rule issued by county administrator]; Huntington Beach Police Officers’ Assn. v. City ofHuntington Beach (1976) 58 Cal.App.3d 492, 504 [failure to bargain over police chief's change to employee work schedule]; City of Davis (2016) PERB Decision No. 2494-M,p. 46 [city’s assistant police chief and administrative fire chief unilaterally developed and implemented performance improvement plan procedures]; County ofSan Bernardino (Office ofthe Public Defender) (2015) PERB Decision No. 2423-M,p. 56 [county public defender unilaterally changed policy regarding employee representation in investigatory meetings]; County ofRiverside (2012) PERB Decision No. 2233-M,pp. 13-14 [county hospital management unilaterally restricted union representative access to employees]; Omnitrans (2010) PERB Decision No. 2143-M,p. 10 [agency unilaterally changed grievance policy when general manager anddirector of operations refused to process a grievance]; City ofSan Diego (Office of the City Attorney) (2010) PERB Decision No. 2103-M,p. 7-8 [city attorney violated section 3505 by attempting to deal directly with employees instead of their exclusive representative]; Omnitrans (2009) PERB Decision No. 2030-M,p. 29 [unilateral change to policy governing union access to employees when managers had union representatives arrested for trespassing]; City ofRiverside (2009) PERB Decision No. 2027-M,p. 14 [city division unilaterally changed its promotion policy]. 42 Petition for Review Case No. 8242034 County ofLos Angeles (1973) 33 Cal.App.3d 1,5.) All of these cases fall outside the narrow ambit of section 3504.5’s express provisions, because they involve no “ordinance,rule, resolution, or regulation ... proposed to be adopted by the governing body.” Althoughthese cases do not specifically consider section 3504.5,it is instructive that there is no published court or PERB decision in which a public agency has even suggested that section 3504.5 limits the duty to meet and confer in any way. (Cf. Cole v. City of Oakland Residential Rent Arbitration Bd. (1992) 3 Cal.App.4th 693, 697-698 [an administrative agency’s contemporaneousconstruction ofa statute, combinedwith reliance and acquiescencebythose affected,is entitled to great weight].) Now, however, the Court of Appeal has overturned this widespread understanding of the scope of the MMBA’s meet-and-confer requirements. 2. Resolution of this important question by the Court will provide critical guidance to PERB andthe thousandsof local public agencies and their employees who are subject to the MMBA. The properinterpretation of section 3505 is a critical question. The MMBAis a statute of broad application; it governs the laborrelations of nearly all cities, counties, and special districts in California. (§ 3501, subd. (c).) Andthis is not a peripheral provision of the MMBA. As noted, this Court has described section 3505 as the Act’s “centerpiece” 43 Petition for Review Case No. 8242034 (Voters for Responsible Retirement v. Bd. ofSupervisors, supra, 8 Cal.4th 765, 780), and has explained that the duty to meet and confer it imposesis a substantial one: [A] public agency must meet with employee representatives (1) promptly on request; (2) personally; (3) for a reasonable period of time; (4) to exchange information freely; and (5) to try to agree on matters within the scope of representation. Though the processis not binding, it requires that the parties seriously “attempt to resolve differences and reach a common ground.” (Los Angeles County Civil Service Com. v. Super. Ct. (1978) 23 Cal.3d 55, 61-62). Moreover, the duty to meet and confer is a “continuous duty to bargain on any bargainable issue.” (San Diego Housing, supra, 246 Cal.App.4th 1, 11, citing County ofContra Costa (2014) PERB Order No. Ad-410-M.) This Court has frequently been called upon to resolve important questions regarding the MMBA’s duty to bargain. (See, e.g., County of Los Angeles v. Los Angeles County Employee Relations Com., supra, 56 Cal.4th 905, 922-923; People ex rel. Seal Beach Police Officers Assn. v. City ofSeal Beach, supra, 36 Cal.3d 591; Los Angeles County Civil Service Com. v. Super. Ct., supra, 23 Cal.3d 55.) Whether the duty arises solely for proposals made by the governing bodyis a similarly critical question for those entities subject to the MMBA,their employees, 44 Petition for Review Case No. S242034 recognized employee organizations, and ultimately PERB, whosedutyit is to administer the statute. This Court should resolve the uncertainty created by the Court of Appeal’s new, narrow interpretation of the MMBA’s duty to meet and confer. V. CONCLUSION The vitally important issues at stake in this caseinclude the correct standard of review of the Board’s interpretation of the MMBA,theproper level of deference owed to PERB’s factual findings undersection 3509.5, subdivision (b), and the scope of the duty to meet and confer under section 3505. The Court of Appeal’s decision also directly conflicts with numerous decisions issued by this Court-and the appellate courts. For these reasons, PERB respectfully urges this Court to grant review in this matter to address thesecritical issues, and ensure uniformity forall public sector labor relations in the State of California. Dated: May 22, 2017 Respectfully submitted, J. FELIX DE LA TORRE, General Counsel WENDI L. ROSS, Deputy General Counsel py MVerelfbAS fer JOSEPH W. ECKHART,Board Counsel Attorneys for Respondent PUBLIC EMPLOYMENT RELATIONS BOARD 45 Petition for Review Case No. 8242034 COUNSEL’S CERTIFICATE OF COMPLIANCE WITH CALIFORNIA RULES OF COURT 8.504(d)(1) Counsel of Record herebycertifies that pursuant to rule 8.504(d)(1) of the California Rules of Court, the enclosed brief of Respondent Public Employment Relations Board is produced using 13-point Roman-type font and contains, including footnotes, 8,167 words, which is less than the maximum-8,400 words-permitted by this rule. Counselrelies on the word count of the computer program used to prepare this brief. VaKK Less > WENDIL. ROSS Declarant PUBLIC EMPLOYMENT RELATIONS BOARD Dated: May 22, 2017 46 Petition for Review Case No. 8242034 PROOF OF SERVICE C.C.P. 1013a COURT NAME: In the Supreme Court for the State of California CASENUMBER: Supreme Court: $242034 Appellate Court: D069626 and D069630 - PERB DECISION NO.: 2464-M, PERB Case Nos. LA-CE-746-M, LA- CE-752-M, LA-CE-755-M, and LA-CE-758-M CASE NAME: City ofSan Diego v. Public EmploymentRelations Board; San Diego Municipal Employees Association; Deputy City Attorneys Association, American Federation ofState, County and Municipal Employees, AFL-CIO, Local 127; San Diego City Firefighters, Local 145, IAFF, AFL- CIO; Catherine A. Boling; T.J. Zane; and Stephen B. Williams I declare that I am a resident of or employed in the County of Sacramento, State of California. I am over the age of 18 and not a party to the within entitled cause. I am an employee of the Public Employment Relations Board, 1031 18th Street, Sacramento, California 95811. On May 22, 2017, I served the Public EmploymentRelations Board’s Petition for Review regarding the above-referenced case on the parties listed below. Attorney for Petitioner: Kenneth H. Lounsbery James P. Lough Alena Shamos Lounsbery Ferguson Altona & Peak, LLP 960 Canterbury Place, Suite 300 Escondido, CA 92025-3836 Telephone: (760) 743-1226 E-mail: khl@lfap.com E-mail: jpl@lfap.com E-mail: aso@lfap.com 47 Petition for Review Case No. 8242034 Attorneys for Real Parties in Interest: Ann M. Smith Smith, Steiner Vanderpool & Wax 401 West A. Street, Ste. 320 San Diego, CA 92101 Telephone: (619) 239-7200 E-mail: asmith@ssvwlaw.com Attorneyfor Real Party in Interest San Diego Municipal Employees Association Fern M.Steiner. Smith Steiner Vanderpool & Wax 401 West A Street, Ste. 320 San Diego, CA 92101 Telephone: (619) 239-7200 E-mail: FSteiner@ssvwlaw.com Attorneyfor Real Party in Interest San Diego City Firefighters, Local 145 Jan I. Goldsmith, City Attorney Walter Chung, Deputy City Attorney M.Travis Phelps, Deputy City Attorney City of San Diego 1200 Third Avenue,Ste. 1100 San Diego, CA 92101 Telephone: (619) 533-5800 E-mail: jgoldsmith@sandiego.gov Attorneysfor Real Party in Interest City ofSan Diego James Cunningham Law Offices of James J. Cunningham 9455 Ridgehaven Court, #110 San Diego, CA 92123 Telephone: (858) 565-2281 E-mail: jimcunninghamlaw@gmail.com Attorneyfor Real Party in Interest Deputy City Attorneys Association ofSan Diego 48 Petition for Review Case No. 8242034 Ellen Greenstone Rothner, Segal & Greenstone 510 S. Marengo Avenue Pasadena, CA 91101 Telephone: (626) 796-7555 E-mail: egreenstone@rsglabor.com Tracy June Jones Hayes & Cunningham, LLP 5925 Kearny Villa Road,Ste. 201 San Diego, CA 92123 E-mail: tjj@sdlaborlaw.com Court of Appeal: Clerk of the Court Fourth District Court of Appeal, Division One Via TrueFiling [X] [X] (BY UNITED STATES MAIL) I enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the address(es) above andplaced the envelopefor collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. The envelope or package was placed in the mail at Sacramento, California. (BY ELECTRONIC SERVICE (E-MAIL)) I served a copy of the above-listed document(s) by transmitting via electronic mail (e- mail) to the electronic service address(es) listed above on the date indicated. I did not receive within a reasonable period of time after the transmission any electronic message or other indication that the transmission was unsuccessful. 49 Petition for Review Case No. 8242034 I declare under penalty of perjury of the State of California that the foregoingis true and correct and that this declaration was executed on May22, 2017, at Sacramento, California. S. Taylor Salar (Type or print name) (Signature) 50 Petition for Review Case No. S§242034 Exhibit A Published Opinion of the Court of Appeal, Fourth Appellate District, Division One Filed 4/11/17 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA CATHERINE A. BOLINGetal., Petitioners, Vv. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; CITY OF SAN DIEGOetal., Real Parties in Interest. CITY OF SAN DIEGO, Petitioner, V. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATIONetal., Real Parties in Interest. D069626 D069630 Petition for extraordinary relief from a decision of the Public Employment Relations Board. Decision annulled. Lounsbery Ferguson Altona & Peak, Kenneth H. Lounsbery, James P. Lough and Alena Shamosfor Petitioners and Real Parties in Interest Catherine A. Boling, T. J. Zane and Stephen B. Williams in No. D069626 and No. D069630. Jan I. Goldsmith and Mara Elliott, City Attorneys, Daniel F. Bamberg, Assistant City Attorney, Walter C. Chung and M.Travis Phelps, Deputy City Attorneys, for Petitioner and Real Party in Interest City of San Diego in No. D069630 and No. D069626. JONES DAY, Gregory G. Katsas, G. Ryan Snyder, Karen P. Hewitt and Brian L. Hazen for San Diego Taxpayers Education Foundation as Amicus Curiae on behalf of Petitioner in No. D069630. Renne Sloan Holtzman Sakai and Arthur A. Hartinger for League of California Cities as Amicus Curiae on behalf of Petitioner in No. D069630. Meriem L. Hubbard and Harold E. Johnson for Pacific Legal Foundation, Howard Jarvis Taxpayers Association and National Tax Limitation Committee as Amici Curiae on behalf ofPetitioner in No. D069630. J. Felix de la Torre, Wendi L. Ross, Mary Weiss, and Joseph W. Eckhart for Respondent. Smith, Steiner, Vanderpool & Wax and Ann M.Smith for Real Party in Interest San Diego Municipal Employees Association in No. D069626. Smith, Steiner, Vanderpool & Wax and Fern M.Steiner for Real Party in Interest San Diego City Firefighters Local 145 in No. D069626. Rothner, Segall and Greenstone, Ellen Greenstone and Connie Hsiao for Real Party in Interest AFCSME Local 127 in No. D069626. Law Offices of James J. Cunningham and James J. Cunningham for Real Party in Interest Deputy City Attorneys Association of San Diego in No. D069626. In June 2012 the voters of City of San Diego (City) approveda citizen-sponsored initiative, the "Citizens Pension Reform Initiative" (hereafter, CPRI), which adopted a charter amendment mandating changesin the pension plan for certain employees of City of San Diego (City). In the proceedings below, the Public Employment Relations Board (PERB) determined City was obliged to "meet and confer" pursuantto the provisions of the Meyers-Milias-Brown Act (MMBA)(Gov. Code,! § 3500 et seq.) over the CPRI before placing it on the ballot and further determined that, because City violated this purported obligation, PERB could order "make whole" remedies that de facto compelled City to disregard the CPRI. We conclude, for the reasons stated below, that under relevant California law the meet-and-confer obligations under the MMBAhavenoapplication when a proposed _ charter amendmentis placed on the ballot by citizen proponents through theinitiative process, but instead apply only to proposed charter amendments placed on the ballot by the governing body ofa charter city. We also concludethat, althoughit is undisputed 1 All statutory references are to the Government Code unless otherwise specified. 3 that Jerry Sanders (City's Mayorduring the relevant period) and others in City's government provided support to the proponents to develop and campaign for the CPRI, PERB erred whenit applied agency principles to transform the CPRI from citizen- sponsoredinitiative, for which no meet-and-confer obligations exist, into a governing- body-sponsoredballot proposal within the ambit of People ex rel. Seal Beach Police Officers Assn. v City ofSeal Beach (1984) 36 Cal.3d 591 (Seal Beach). Accordingly, we hold PERB erred whenit concluded City was required to satisfy the concomitant "meet- and-confer" obligations imposed by Seal Beach for governing-body-sponsored charter amendment ballot proposals, and therefore PERB erred when it found Sanders and the San Diego City Council (City Council) committed an unfair labor practice by declining to meet and confer over the CPRI before placing it on theballot. I OVERVIEW The San Diego Municipal Employees Association and other unions representing the prospectively affected employees (Unions) made repeated demands on Sanders and the City Council for City to meet and confer pursuant to the MMBAover the CPRI before placing it on the ballot. (San Diego Municipal Employees Assn. v. Superior Court (2012) 206 Cal.App.4th 1447, 1451-1452 (San Diego Municipal Employees).) However, there was no dispute the proponents of the CPRI had gathered sufficient signatures to qualify the CPRIfor the ballot, and the City Council declined Unions’ meet-and-confer demandsandplacedit on the ballot. (/d. at pp. 1452-1453.) The citizens of San Diego ultimately voted to approve the CPRI. Unionsfiled unfair practice claims with the Public Employment Relations Board (PERB), asserting the rejection by Sanders and the City Council of their meet-and-confer demands constituted an unfair practice under the MMBA. PERB commenced proceedings against City and ultimately ruled City violated the MMBAbyrefusing to meet and confer over the CPRI before placing it on the June 2012 ballot. PERB ordered, amongother remedies, that City in effect refuse to comply with the CPRI. City filed this petition for extraordinary review challenging PERB's conclusion that, because highlevel officials and other individuals within City's government publicly and privately supported the campaign to adopt the citizen-sponsored charter amendment embodiedin the CPRI, City committed an unfair labor practice under the MMBAbyplacing the CPRI on the ballot without complying with the MMBA's meet-and-confer requirements. In Seal Beach, supra, 36 Cal.3d 591, our high court was required to harmonize the provisions of the meet-and-conferrequirements of the MMBAwiththe constitutional grant of power to a "governing body"to place a charter amendmentonthe ballot that would impact the terms and conditions of employment for employeesof that city. The Seal Beach court concluded that, before a governing body mayplace such a charter amendmenton the ballot, it must first comply with the meet-and-confer obligations under the MMBA. (Seal Beach, at pp. 597-601.) The Seal Beach court cautioned, however, that the case before it "[did] not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposedbyinitiative." (Ud. at p. 599, fn. 8.) The present proceeding requires that we first determinethe issue left open in Sea/ Beach: does the meet-and-confer requirement apply when the charter amendmentis proposed by a citizen-sponsoredinitiative rather than a governing-body-sponsoredballot proposal? We conclude the meet-and-confer obligations under the MMBAapply only to a proposed charter amendmentplaced onthe ballot by the governing bodyof a charter city, but has no application when such proposed charter amendmentis placed on the ballot by citizen proponents through the initiative process. With that predicate determination, we must then decide whether PERB properly concluded City nevertheless violated its meet-and-confer obligations because the CPRI was ot a citizen-sponsored initiative outside of Seal Beach's holding, but was instead a "City"-sponsoredballot proposal within the ambit of Seal Beach. Although several people occupying elected and nonelected positions in City's governmentdid provide support for the CPRI, we conclude PERB erred whenit applied agency principles to transform the CPRIinto a governing- body-sponsored ballot proposal. Because we conclude that, notwithstanding the support given to the CPRI by Sanders and others, there is no evidence the CPRI was ever approved by City's governing body (the City Council), we hold PERB erred whenit concluded City was required to satisfy the concomitant "meet-and-confer" obligations imposed by Seal Beach for governing-body-sponsored charter amendmentballot proposals. II FACTUAL AND PROCEDURAL BACKGROUND A. DeMaio's Pension Reform Proposal In early November 2010, City Councilmember Carl DeMaio announcedhis comprehensive plan to reform the City's finances. His wide-ranging plan to reform the City's finances included, among its many proposals, a proposal to replace defined benefit pensions with 401(k)-style plans for newly hired employees. B. Sanders's Pension Reform Proposal In late November 2010, Sanders also announcedthat he would attempt to develop and placea citizen's initiative on the ballot to eliminate traditional pensions for newhires at City and to replace them with a 401(k)-style plan for nonsafety new hires. Sanders believed replacing the old system with the new 401(k)-style plan was necessary to solve what he viewed to be the unsustainable cost to City of the defined benefit pension for City employees. Sanders, after discussions with various membersofhis staff, decided to pursue his pension reform proposalas a citizens’ initiative, rather than to pursueit by a City Council-sponsored ballot measure. Sanders chose to pursue his pension reform proposal as a citizen-sponsoredinitiative, rather than a City Council-sponsored ballot proposal, because he did not believe the City Council would put his proposal on the ballot "under any circumstances," and he also believed pursuing a City Council-sponsored ballot proposal (which would also require negotiating with the unions) could require unacceptable compromises to his proposal.2 Sanders held a "kick-off" press conference to announcehis intent to pursue his pension reformplans througha privateinitiative. This event, which washeld at City Hall and at which Sanders was joined by others,3 was covered by the local media and included media statements informing the public that "San Diego voters will soon be seeing signature-gatherers for a ballot measure that would end guaranteed pensions for new [C]ity employees."4 Sanders's office also issued a news release-styled as a "Mayor Jerry Sanders Fact Sheet"-to announce his decision. Faulconer disseminated Sanders's press release by an e-mail stating Sanders and Faulconer "would craft a groundbreaking [pension] reform ballot measure and lead the signature-gathering effort to place the measure before voters,” and Sanders sent a similar e-mail announcing he waspartnering 2 Sanders, in a tape-recorded interview with a local magazine, explained he pursued a citizen-sponsoredinitiative rather than other avenues to achieve his pension reform objectives because: "[W]hen you go out and signature gather and it costs a tremendous amount of money,it takes a tremendous amountof time and effort .... But you do that so that you getthe ballot initiative on that you actually want. [A]nd that's what wedid. Otherwise, we'd have gone through the meet and confer and you don't know what's going to go on at that point... ." 3 Also in attendance were City Attorney Jan Goldsmith, City CouncilmemberKevin Faulconer, and City's Chief Operating Officer Jay Goldstone). 4 NBCSan Diego news coverage of Sanders's press conference included a photograph of Sanders standingin front of the City seal to makehis initiative announcement. with Faulconerto "craft language and gather signatures" for a ballot initiative to reform public pensions. Overthe ensuing months,Sanders continued developing and publicizing his pension reform proposal, and in early January 2011 a committee was formed (San Diegans for Pension Reform (SDPR)) to raise money to support his proposedinitiative. At his January 2011 State of the City address,> Sanders vowed to "complete our financial reforms andeliminate ourstructural budget deficit." He stated he was "proposing a bold step" of "creating a 401(k)-style plan for future employees. . . [to] contain pension costs and restore sanity to a situation confronting every big city" and that, "acting in the public interest, but as private citizens,” Sanders announcedthat he, Faulconer, and the San Diego City Attorney (City Attorney) "will soon bring to voters an initiative to enact a 401 (k)-style plan." That same day, Sanders's office issued a press release publicizing his vow "to push forwardhis ballotinitiative" for pension reform.®. Sanders believed he had madeit clear to the public that he undertook his efforts as a private citizen even though hewasidentified as "Mayor" when speaking in public about his proposal. 5 Article XV, section 265(c) of the City Charter requires the address as a message from the Mayorto the City Council that includes "a statement of the conditions and affairs of the City" and "recommendations on such matters as he or she may deem expedient and proper." Members of Sanders's staff helped write the speech. 6 After his speech, Sanders continuedhis publicity efforts for his proposal, and he was aided in those efforts by individuals who were also membersofhisstaff. C. DeMaio's Competing Pension Reform Initiative The plan announced by DeMaio in early November 2010 for pension reform differed in some respects from Sanders's proposal. For example, DeMaio's proposed plan for a 401(k)-style plan for new hires did not exemptpolice,firefighters and lifeguards. DeMaio's proposedplan also included a "cap" on pensionable pay./ Twolocal organizations, the Lincoln Club and the San Diego County Taxpayers Association (SDCTA), supported DeMaio's competing plan as a plan that was "tougher" than Sanders's proposal. D. The CPRI In the aftermath of Sanders's January 2011 State of the City address, people in the business and development community informed Sanders they believed two competing initiative proposals-the DeMaio proposal and the Sanders proposal-would be 7 By mid-March 2011, SDPR (the committee formed to support Sanders's proposed plan) hired an attorney to provide advice related to Sanders's proposed plan, and the attorney had opined the "cap" on pensionable pay as proposed by DeMaio's plan would make such a plan more vulnerable to legal challenges. SDPR also independently hired Buck Consultants, then serving as City's actuary for City's existing pension plan (and therefore with access to the data on City's pension system database), to provide a fiscal analysis of the impacts of 401(k) plans for new employees. Apparently, during the transition period to a 401(k)-style plan for new employees, there would be an immediate shorter term cost to City (because the change in the actuarial method used in doing the calculation would increase City's payments into the pension planin thefirst three or four years), and a proposal for a "hard cap” on total payroll expenses could have mitigated the short-term impacts on City from the pension reform proposal. At his March 24, 2011, press conference, Sanders (along with Faulconer and the co-chairman for SDPR) reiterated their intent to move forward as private citizens with their pension reform proposal, and stated it would include caps andrestrictions (including a five-year cap on City's payroll expenses) to produce greater savingsfor City. 10 confusing and there would be inadequate money to fund two competing citizen initiatives. Shortly after a March 24, 2011, press conference at which Sanders presented his refined proposal, people within either the Lincoln Club or SDCTAtold Sanders they were "moving forward" with DeMaio's plan becauseit had sufficient money and was going to go onto the ballot, and that Sanders could either join them or go off on his own. This apparently triggered a series of meetings between supporters of the competing proposals,® and they reached an accord on the parametersofa single initiative. Thefinal initiative proposal, which ultimately became the CPRI, melded elements of both Sanders's and DeMaio's proposals: newly hired police wouldstill continue with a defined benefit pension plan for newly-hired police officers, but newly-hiredfirefighters would be placed into the 401(k)-style plan. The pensionable pay freeze would be subject to the meet-and-confer process and could be overridden by a two-thirds majority of the City Council, but there would be no cap on total payroll. Sanders called the negotiations "difficult," and testified he did not like every part of the new proposal, but he nonetheless supported it because he believed it was "important for the City in the long run.” A law firm (Lounsbery, Ferguson, Altona & Peak (hereafter Lounsbery)) was hired by SDCTAto draft the language of the CPRI. SDCTA gave Lounsbery the DeMaiodraft of the initiative as the starting point for Lounsbery's drafting of the final 8 Amongthose who attended one or more of the meetings were Sanders, Goldstone and Dubick (Sanders's chiefofstaff). 11 languagefor the initiative.? Lounsbery maderelatively few revisionstoit to finalize the language that became the CPRI. Lounsbery was paid by SDCTAforits services. 10 On April 4, 2011, the City Clerk received a notice of intent to circulate a petition seeking to place the CPRI onthe ballot, seeking to amend City's Charter pursuant to section 3 of article XI of the California Constitution. The ballot proponents were Catherine A. Boling (Boling), T.J. Zane (Zane), and Stephen Williams (Williams) (collectively, Proponents). ! l To qualify the CPRI for the ballot, the Proponents needed to obtain verified signatures from at least 15 percent (94,346) of the City's registered voters. On September 30, 2011, Zane delivered to the City Clerk a petition containing over 145,000 signatures, and the City Clerk forwarded the petition to the San Diego County Registrar of Voters 9 Goldstonetestified SDCTA sought his feedback on its proposed language, and he reviewedand respondedto two orthree drafts in the evening or weekendsat his home. Dubick and Goldsmith also reviewed and provided feedback on the proposed language. 10 Lounsbery filed a quarterly disclosure form indicating San Diego Taxpayers Association paid $18,000 to Lounsberyfor its services in connection with its work on the CPRIforthe first quarter of 2011. Among the peoplelisted as being "lobbied" in __ connection with Lounsbery's work on the CPRI were Sanders, Goldstone, Goldsmith, Dubick. and Faulconer. il Williams and Zane were leaders in the Lincoln Club, and the Lincoln Club (along with SDPR,the committee formed to raise money in support of Sanders's proposed initiative) was a major contributor to the committee formed to promote the campaign for the CPRI. Although Sanders would have preferred that SDPR's head (Shephard) run the campaign, Sanders was persuaded by a vice chairman of the Lincoln Club that Zane was ‘perfectly capable of running the ballot initiative campaign from the Lincoln Club. 12 (SDROV)to officially verify the signatures. The SDROV determinedtheinitiative petition contained sufficient valid signatures and, accordingly, on November8, 2011, the SDROVissued a Certification that the CPRI petition had received a "SUFFICIENT" numberof valid signatures requiring it to be presented to the voters as a citizens’ initiative. The City Clerk submitted the SDROV's Certification to the City Council on December 5, 2011, and that same day the City Council passed Resolution R-307155, a resolution of intention to place the CPRI on the June 5, 2012, Presidential primary election ballot, as required by law. E. Sanders Campaignsfor the CPRI The day after the proponents filed their notice of intent to circulate, Sanders, DeMaio, Goldsmith, Faulconer, Boling, and Zane held a press conference on the City Concourse at which they announcedthefiling of the CPRIpetition. 12 A news media outlet reported that proponents of the dueling ballot measures to curtail San Diego City pensions had reached a compromise to combine forces behind single initiative for the June ballot. Sanders thereafter supported the campaign to gather signatures and promote the CPRI. He touted its importance by providing interviews and quotes to the media and by discussing it at his speaking appearances! 3, Additionally, campaign disclosure 12 Sanders testified he appeared as a private citizen, and assumed the same wastrue for Goldsmith, although there is no evidence whether they communicated this fact to the press or the public at the press conference.! (XIII:3427-3428)! 13 For example, he included the CPRI in the "bullet points" prepared for his speaking engagements before various groups. He also approved issuing a "message from Mayor Jerry Sanders" for circulation to members of the San Diego Regional Chamber of 13 statements indicated SDPR (the committee formed to promote Sanders's original initiative proposal) contributed $89,000 in cash and nonmonetary support to the committee supporting the CPRI from January 1, 2011, through June |, 2011. F, The Meet-and-Confer Demands On July 15, 2011, the San Diego Municipal Employees Association (MEA) wrote to Sanders asserting City had the obligation under the MMBAto meet and conferover the CPRI. When Sanders did not respond, MEA wrote a secondletter demanding City satisfy its meet-and-confer obligations concerning the CPRL. City Attorney Goldsmith responded bystating, among other things, the City Council was required (underthe California Constitution and state elections law) to place the CPRI without modification on the ballot as long as the proponents submitted the requisite signatures and otherwise met the procedural requirements for a citizen initiative to amend the Charter. Goldsmith explained that, "[a]ssuming the proponents of the [CPRI] obtain the requisite numberof signatures on their petition and meet all other legal requirements, there will be no determination of policy or course of action by the City Council, within the meaning of the MMBA,triggering a duty to meet and conferin the act of placing the citizen initiative on the ballot." Commercethat solicited financial and other support for the signature gathering effort, although he did not know whetherthe language of that message was drafted by the campaignor by his staff. Members of Sanders's staff facilitated his promoting of the CPRI by, for example, responding to requests from the media for quotes. 14 MEA,in its September 9, 2011, response to Goldsmith's explanation, asserted City was obligated to meet and confer because Sanders wasacting as the Mayor to promote the CPRI and hence “has clearly made a determination of policyforthis City related to mandatory subjects of bargaining... ." MEA asserted Sanders was "using the pretense that [the CPRI] is a 'citizens' initiative’ whenit is, in fact, this City's initiative" as a deliberate tactic to "dodge the City's obligations under the MMBA." The City Attorney's office reiterated City had no meet-and-confer obligations "at this point in the process" because "there is no legal basis upon which the City Council can modify the [CPRI], if it qualifies for the ballot," but instead the City Council "must comply with California Elections Code. . . section 9255" and place the CPRI on the ballot if it meets the signature and other procedural requirementsset forth in the Elections Code. Accordingly, City declined MEA's demand to meet and confer over the CPRI. 14 G. The Initial Proceedings and San Diego Municipal Emplovees MEAfiled its unfair practice charge (UPC) on January 20, 2012, asserting City refused to meet and confer over the CPRI because "City claimsthat it is a ‘citizen's initiative’ not ‘City's initiative,’ " and MEAalleged this refusal violated the MMBA because the CPRI "is merely a sham device which City’s 'Strong Mayor’ hasused for the express purpose of avoiding City's MMBAobligations to meet and confer." However, on January 30, 2012, the City Council, after recognizing the petitions for the CPRI contained 14 Subsequent demands by MEA(as well as other employee unions) to meet and confer were rejected by City for similar reasons. 15 the requisite numberof signatures, enacted an ordinance placing the CPRI on the June 2012 ballot. On February 10, 2012, PERB issued a complaint against City, alleging City's failure to meet and confer violated sections 3505 and 3506, and was an unfair practice within the meaning ofsection 3509, subdivision (b) and California Code of Regulations, title 8, section 32603, subdivisions (a) through (c). 15 PERB also ordered an expedited administrative hearing and appointed an administrative law judge (ALJ) to hold an evidentiary hearing on the complaints. (San Diego Municipal Employees, supra, 206 Cal.App.4th at p. 1453.) PERB also filed a superior court action seeking, amongotherrelief, an order temporarily enjoining presentation of the CPRI to the voters on the June 2012 ballot, but the trial court rejected PERB's motion for a preliminary injunction. (San Diego Municipal Employees, supra, 206 Cal.App.4th at pp. 1453-1454.) After the ALJ scheduled an administrative hearing for early April 2012 onthe complaints, City moved in the superior court action for an order staying the administrative hearing and quashing the subpoenasissued by the ALJ. Thetrial court granted City's motionto stay the administrative proceedings, and MEA pursuedwrit relief. (/d. at pp. 1454-1455.) In San Diego Municipal Employees, this court concluded the stay was improper because "[a]s the expert administrative agency established by the Legislature to administer collective 15 Other unionsalso filed UPC's and PERB issued complaints on those claims. All of the claims and complaints were ultimately consolidated for hearing. 16 bargaining for covered governmental employees, PERB has exclusiveinitial jurisdiction over conduct that arguably violates the MMBA"(id.at p. 1458), and PERB's "initial exclusive jurisdiction extends to activities '"arguably ... prohibited" by public employmentlabor law... .'" (Ud. at p. 1460, quoting City ofSan Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 606, italics added by San Diego Municipal Emplovees).) This court noted that, had City directly placed the CPRI on the ballot without satisfying the meet-and-confer procedures, it would have engaged in conduct prohibited by the MMBA,and weultimately concluded thatbecause "MEA's UPCalleges (and provides some evidence to support the allegations) that the CPRI (while nominally a citizen initiative) was actually placed on the ballot by City using straw men to avoid its MMBAobligations, the UPC doesallege City engaged in activity arguably prohibited by public employmentlaborlaw, giving rise to PERB'sinitial exclusive jurisdiction." (/d. at p. 1460.) This court ultimately concluded it waserrorto stay PERB's exclusive initial jurisdiction over the UPC claims, and vacated the stay. (Jd. at pp. 1465-1466.) H. PERB Proceedings and Determination The ALJ Proposed Decision The ALJ held an administrative hearing and,after taking evidence, issued a proposed decision. The proposed decision found Sanders choseto pursuea citizens’ initiative measure, rather than invoke the City Council's authority to place his plan on the ballot as a City Council-sponsored ballot proposal, because he doubted the City Council's 17 willingness to agree with him and because he sought to avoid concessionsto the unions. The ALJ found the CPRI, which embodied a compromise between Sanders's proposal and the proposal championed by DeMaio, wasthen carried forward asa citizens’ initiative and was adopted by the electorate. The ALJ found that, because Sanders occupied the office of Mayorin a city that uses the "strong mayor" form of governance, andin that role has certain responsibilities when conducting collective bargaining with represented employee organizations on behalf of City (including the responsibility to develop City's initial bargaining proposals, to map out a strategy for negotiations, and to brief the City Council on the proposals and strategies and to obtain the City Council's agreementto proceed), Sanders "wasnotlegally privileged to pursue implementation of [pension reform]as a private citizen." The ALJ concludedthat because Sanders,acting "underthe color of his electedoffice" and with the support of two City Councilmembers and the City Attomey,!6 launched and pursued the pension reform initiative campaign, 16 The ALJ's decision also cited evidence that "[q]uantifiable time and resources derived from the City... were devoted to the Mayor's promotionofhisinitiative, notwithstanding the views of someorall of the City's witnesses that their activities were on personal time." However, the ALJ appeared to find that, even ifall of the support work done byindividual members of Sanders's staff had been "done on non-worktime, their defense that these activities were done for private purposes is no stronger than the Mayor's... ." We note this finding because the PERB decision, as well as PERB's argumentsin this writ proceeding, devotes substantial analysis to explaining that City- owned resources(as well as time spent by individuals who were members of Sanders's staff) were employed to support the CPRI. Aithough there is some evidentiary support for these factual findings, neither PERB's decision nor PERB's briefs in this proceeding articulates the legal relevance of these findings on the central issue raised in this proceeding-whether Sanders's acts in supporting the CPRI were as agent for the City Council-andwetherefore limit our remaining discussion of those facts. 18 Sanders made "a policy determination that [City] propose[d] for adoption by the electorate” on a negotiable matter but denied the unions "an opportunity to meet and confer overhis policy determination in the form of [the CPRI],” in violation of the meet- and-confer obligations under Seal Beach. The ALJ further concluded that, because of Sanders's "status as a statutorily defined agent of the public agency and common law principles of agency, the same obligation to meet and confer applie[d] to the City because it has ratified the policy decision resulting in the unilateral change." The PERB Decision After PERB considered supplemental briefing concerning the ALJ's proposed decision from City, Unions andthe ballot proponents, PERB issued the decision challengedin this writ proceeding that largely affirmed the ALJ's decision. !7 Specifically, PERB rejected City's exceptions to the ALJ's conclusionsthat City was charged with Sanders's conduct underprinciples of statutory agency, common law principles of agency based on actual and apparent authority, and commonlawratification principles.!8 Instead, PERB adopted the ALJ's findings that: (1) "under the City's Strong 17 PERB modified the remedies ordered by the ALJ's proposed decision (see fn. 20, post) but affirmed the core determination that the refusal to meet and confer overthe CPRI before placing it on the ballot violated the MMBA. 18 Curiously, although PERB concluded common law agencyprinciples permitted PERB to charge City with Sanders's conduct in promoting and campaigning forthe CPRI, PERBalso concluded the evidence showed the Proponents of the CPRI (who paid to have the CPRI drafted and whoran the signature effort and campaign for passage of the CPRI) were not Sanders's agents because they undertook their actions outside of Sanders's control. PERB nevertheless concluded commonlawprinciplesofratification 19 Mayorform of governance and commonlaw principles of agency, Sanders was a statutory agent of the City with actual authority to speak for and bind the City with respect to initial proposals in collective bargaining with the Unions; (2) under common law principles of agency, [Sanders] acted with actual and apparent authority when publicly announcing and supporting a ballot measure to alter employee pension benefits: and (3) the City Council had knowledge of [Sanders's conduct], by its action and inaction, and, by accepting the benefits of Proposition B, thereby ratified his conduct." PERB's decision also concludedthat, because City (through Sandersas its agent) decided to place the CPRI on the ballot while acquiescing in Sanders's rejection of the unions' meet-and-confer demands, City violated the MMBA. 19 and apparent authority applied "so as not to excuse the City's failure to meet and confer based on the actions ofprivate citizens involved in the passage of [the CPRI]." 19 Specifically, PERB found the City Council "was on notice that, even if pursued as a private citizens' initiative, [Sanders's] public support for an initiative to alter employee pension benefits would be attributed to the City for purposes of MMBA....[{]... [§] After it became aware of the Unions’ requests for bargaining, the City Council, like [Sanders], relied on the advice of Goldsmith that no meet-and-conferobligation arose because [the CPRI] wasa purely ‘private’ citizens’ initiative. The City Council failed to disavow the conductofits bargaining representative and may therefore be held responsible for [Sanders's] conduct. [Citation.] The City Council also accepted the benefits of [the CPRI] with prior knowledge of [Sanders's] conduct . . . . [{]] We agree with the ALJ's findings that, with knowledge of his conduct and, in large measure, notice of the potential legal consequences, the‘City Council acquiesced to [Sanders's] actions, including his repeated rejection of the Unions’ requests for bargaining, and that, by accepting the considerable financial benefits resulting from passage and implementation of [the CPRI], the City Council thereby ratified [Sanders's] conduct." 20 PERB modified the remedy ordered in the ALJ's proposed decision insofar as the proposed decision ordered City to vacate the results of the election adopting the CPRI.20 However, PERB's remedy, invoking its "make-whole” and "restoration" powers for remedying violations of the MMBA,ordered (among other things) that City "Day employeesfor all lost compensation, including but not limited to the value of lost pension benefits, resulting from the enactment of [the CPRI], offset by the value of new benefits required from the City under[the CPRI]." Writ Proceedings Challenging PERB Decision City timely filed this writ petition challenging PERB's decision (§ 3509.5), and this court issued its writ of review. In City's writ proceeding, City named Proponents as additionalreal parties in interest and Proponents havefiled briefs in that proceeding. Proponentsalso filed a separate writ petition challenging PERB's decision, and this court issued a writ of review. We subsequently consolidated the two writ proceedings for consideration and disposition. In City's writ proceeding, PERB (joined by Unions) has movedto dismiss Proponentsasreal parties in interest, arguing Proponents lack standingto participate as real parties because they were not (and were indeed barred by PERB regulations from 20 The ALJ's Proposed Decision required, among otheraffirmative actions by City, that City "[rJescind the provisions of [the CPRI] adopted by the City and return to the status quo that existed at the time the City refused to meet and confer... ." The PERB decision declined to adopt that aspect of the remedy posited in the ALJ's proposed decision because PERB expressed doubts it had the powerto rescind aninitiative adopted by the voters. 21 being) parties to the underlying PERB proceeding. PERB has separately moved to dismiss Proponents’ writ proceeding on the same ground. Weconcludeofficial proponentsofa ballot initiative have a sufficiently direct interest in the result of the proceeding (Connerlyv. State Personnel Bd. (2006) 37 Cal.4th 1169, 1178) to join as real parties in interest in an action, either by intervention or because they are named by other parties as real parties in interest, whichis directed at the evisceration ofthe ballot measurefor which they were the official proponents. (See Perry v. Brown (2011) 52 Cal.4th 1116, 1125; see also Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1250.) Accordingly, we deny PERB's motion to dismiss Proponentsasreal parties in interest from City's writ proceeding. Additionally, in light of our conclusion that PERB's decision must be annulled because City was not obligated to meet and conferprior to placing the CPRI on the ballot, PERB's motion to dismiss Proponents’ writ proceeding (andthe additional arguments raised in Proponents’ writ proceeding) are moot and we need not address them. Bt STANDARDS OF REVIEW The standards applicable to our review of a PERB decision are governed by differing degrees of deference. First, insofar as PERB's decision rests on its resolution of disputed factual questions, we apply the most deferential standard of review. Underthis standard, PERB's factual findings are conclusiveas long as there is any substantial evidencein the record to support its factual findings. (Trustees of Cal. State University v. 22 Public Employment Relations Bd. (1992) 6 Cal.App.4th 1107, 1123; see, e.g., Regents of University ofCalifornia v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 618- 623 [affirming PERB determination that students were employees under Higher Education Employer-Employee Relations Act because substantial evidence supported conclusion students’ educational objectives were subordinate to the services students performed as housestaff].) The deference to be accorded PERB's resolution of questions of law, and PERB's application of that law to the facts found byPERB,presents a more complicated question, because "balancing the necessary respect for an agency's knowledge, expertise, and constitutional office with the courts’ role as interpreter of laws can be a delicate matter... ." (Gonzales v. Oregon (2006) 546 U.S. 243, 255.) PERB asserts that we must follow its determinations of law unless clearly erroneous. Specifically, PERB argues that because it has been invested by the legislative scheme with the "specialized and focused task"of protecting " "both employees and the state employer from violations of the organizational andcollective bargaining rights guaranteed by [law]'" (Banning Teachers Assn. v. Public EmploymentRelations Bd. (1988) 44 Cal.3d 799, 804), PERBis ""one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.’ " (/bid., quoting Universal Camera Corp. v. National LaborRelations Bd. (1951) 340 U.S. 474, 488.) Accordingly, PERB argues, "[{T]he relationship of a reviewing court to an agency such as 23 PERB,whoseprimary responsibility is to determine the scopeofthe statutory duty to bargain and resolve charges of unfair refusal to bargain, 1s generally one of deference" (Ibid., citing Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1012), and PERB'sinterpretation will generally be followed unless it is clearly erroneous. However, in Yamaha Corp. ofAmerica v. State Bd. ofEqualization (1998) 19 Cal.4th 1 (Yamaha), our Supreme Court explained, " 'The standard for judicial review of agencyinterpretation of law is the independentjudgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agencyaction.'" (Id. at p. 8.) Yamaha's conceptual framework noted that courts must distinguish between two classes ofinterpretive actions by the administrative body-thosethat are "quasi- legislative" in nature and those that represent interpretations of the applicable law-and cautions that "because oftheir differing legal sources, [each] commandsignificantly different degrees of deference by the courts.” (/d. at p. 10.) When examining the former type of action, an agency interpretation "represents an authentic form of substantive lawmaking: Within its jurisdiction, the agency has been delegated the Legislature's lawmaking power. [Citations.] Because agencies granted such substantive rulemaking powerare truly 'makinglaw,’ their quasi-legislative rules have the dignity of statutes. Whena court assessesthe validity of such rules, the scope ofits reviewis narrow. If satisfied that the rule in question lay within the lawmaking authority delegated by the 24 Legislature, and thatit is reasonably necessary to implement the purposeofthestatute, judicial review is at an end.” (/d. at pp. 10-11.) However, "[t]he quasi-legislative standard of review ‘is inapplicable when the agency is not exercising a discretionary rule-makingpower, but merely construing a controlling statute. The appropriate mode of review in such a caseis one in which the judiciary, although taking ultimate responsibility for the construction ofthestatute, accords great weight and respect to the administrative construction.’ [(Quoting International Business Machines v. State Bd. ofEqualization (1980) 26 Cal.3d 923, 931, fn. 7.)]" (Yamaha, supra, 19 Cal.4th at p. 12, italics added by Yamaha.) Yamaha recognized that, unlike quasi-legislative rule making by the agency, an agency's interpretation of the law does not implicate the exercise of a delegated lawmaking power but "instead... represents the agency's view of the statute's legal meaning andeffect, questions lying within the constitutional domain of the courts.” (/d. at p. 11.) Yamaha recognized that an agency mayoften beinterpreting the legal principles within its administrative jurisdiction and, as such "may possess special familiarity with satellite legal and regulatory issues. It is this 'expertise,' expressed as an interpretation . . . , that is the source of the presumptive value of the agency's views. An important corollary of agency interpretations, however, ts their diminished powerto bind. Because an interpretation is an agency's legal opinion, however ‘expert,’ rather than the exercise of a delegated legislative power to make law,it commands a commensurably lesser degree of judicial deference." (/bid.) 25 Weconstrue Yamaha as recognizing that, in ourtripartite system of government,it is the judiciary-notthelegislative or executive branches-thatis charged withthefinal responsibility to determine questions of law (Yamaha, supra, 19 Cal.4th at p. 11 & fn. 4), and "[w]hetherjudicial deferenceto an agency's interpretation is appropriate and,ifso, its extent-the 'weight' it should be given-is thus fundamentally situational." (Id. at p. 12, italics added.) Thus, while some deference to an agency's resolution of questions of law may be warranted when the agency possesses a special expertise with the legal and regulatory milieu surrounding the disputed question (see New Cingular Wireless PCS, LLC vy. Public Utilities Commission (2016) 246 Cal.App.4th 784, 809-810), the judiciary accords no deference to agency determinations on legal questions falling outside the parameters of the agency's peculiar expertise.2! (See, e.g., Overstreet ex rel. NLRB vy. United Brotherhood of Carpenters and Joiners ofAmerica, Local Union No. 1506 (9th 21 Indeed, although a court may accept statutory constructions made by PERB that are "within PERB'slegislatively designated field of expertise . . . unless it ts clearly erroneous" (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 854-856 [because PERB is empowered to determine in disputed cases whethera particular item is within or without the scope of representation requiring bargaining, interpretation of a statutory provision defining scope of representation falls squarely within PERB'slegislatively designated field of expertise and will not be reversed unless clearly erroneous]), the courts in other contexts have declined to accord - any deference when the PERB decision does not adequately evaluate and apply common law principles. (See, e.g., Los Angeles Unified SchoolDist. v. Public Employment Relations Bd. (1983) 191 Cal.App.3d 551, 556-557 [PERB determined twolocal public employee unions, both affiliated with same international, were not "same employee organization" within the meaning of section 3545, subdivision (b)(2), because actual conduct showedinternational did not exercise dominion and control overlocal unions; court reversed PERB ruling and concluded two local unions would quality as the same employee organization within the meaning of the statute as long as international actually or potentially exercised the requisite dominion and control].) . 26 Cir. 2005) 409 F.3d 1199, 1208-1209 [no deference accorded to the N LRB's interpretation ofNLRA when judged against backdrop of competing constituti onal issues]; accord, California State Teachers’ Retirement System v. Coun ty ofLos Angeles (2013) 216 Cal.App.4th 4l, 55 [under Yamaha “the degree of deteren ce accorded should be dependentin large part upon whether the agency has a' “comparative inte rpretative advantage overthe courts” ' and on whetherit has probably arrived at the cor rect interpretation"); Azusa Land Partners v. Department ofIndus. Relations ( 2010) 191 Cal.App.4th 1, 14 [Where dispositive facts are undisputed and purely legal i ssues remain requiring interpretation of a statute an administrative agency is responsible f or enforcing, courts exercise independent judgment, and "agency's interpretationis ' "one of several interpretive tools that may be helpful. In the end, however, '[the court ] must... independently judge the text of the statute.’ " ™).) IV ANALYSIS A. Overview of MMBA The MMBAcodifies California's recognition ofthe right of public emplo yees to collectively bargain with their government employers, and reflects a strong policy in California favoring peaceful resolution of employment disputes by negoti ations. (§ 3500; Fire Fighters Unionv. City of Vallejo (1974) 12 Cal.3d 608, 622.) In furthera nce ofthat goal, section 3504.5 of the MMBArequires that reasonable written notice be given to organizations such as the MEAofany action "proposed to be adopted by the governing 27 body"that directly relates to matters within the scope of representation.22 It further requires such governing bodyorits designated representative, "prior to arriving at a determination of policy or course of action," to "meet-and-confer in good faith” with representatives of the union concerning negotiable subjects.23 The duty to meet and confer, which "has been construed as a duty to bargain. . . [citation] [and]... requires the public agencyto refrain from making unilateral changes in employees’ wages and working conditions until the employer and employee . association have bargained to impasse” (Santa Clara County Counsel Attys. Assn.v. Woodside (1994) 7 Cal.4th 525, 537), thus places on the employer the duties (1) to give reasonable written notice (to each recognized employee organization affected) of an ordinancedirectly relating to matters within the scope of representation "proposed to be adopted by the governing body"and provide such organization the opportunity to meet with the governing body, and (2) to meet and confer in good faith (and considerfully the 22 Section 3504.5, subdivision (a) provides that, "Except in cases of emergency as provided in this section, the governing body of a public agency .. . 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 proposed to be adopted by the governing body . . . and shall give the recognized employee organization the opportunity to meet with the governing body... ." 23 Section 3505 provides: "The governing bodyof a public agency. . . or other representatives as may be properly designated by law or by such governing body,shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employmentwith representatives of such recognized employee organizations ... , and shall considerfully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action." 28 presentations by the organization) prior to arriving at any determination on the governing body's course of action. ($$ 3504.5, subd. (a) & 3505.) Accordingly, absent emergency circumstances or other exceptions, a governing bodythat 1s subject to the MMBA may not adopta legislative policy that unilaterally changes its employees’ wages and working conditions without first complying with its meet-and-confer obligations imposed by the MMBA. In Seal Beach, the court was required to harmonize the provisions of the "meet- and-confer" requirements of the MMBAwith the constitutional grant of powerto a city council, as governing body for a charter city, to place a charter amendment on the ballot that would (if adopted) impact the terms and conditions of employment for employees of that city. The Sea/ Beach court concluded that, before such a governing body may place this type of charter amendmentonthe ballot, it must first comply with the meet-and- confer obligations under the MMBA. (Seal Beach, supra, 36 Cal.3d at pp. 597-601.) The Seal Beach court cautioned, however, that the case before it "[did] not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposedbyinitiative." (/d. at p. 599, fn. 8.) B. Seal Beach's Meet-and-Confer Obligations Do Not Apply to Citizen Initiatives Wefirst address and resolve the issue expressly left open in Seal Beach: whether the meet-and-confer requirements of the MMBA,which Seal Beach concluded did apply to acity council's determination to place a charter amendmentonthe ballot, apply with equal force before the governing bodyof a charter city may comply withits statutory 29 obligation to place on the ballot a duly qualified citizen's initiative proposing the same type of charter amendment.24 Citizens Initiatives Do Not Trigger MMBA Procedural Requirements The charter amendmentprovisions containedin article XI, section 3, subdivision (b), of the California Constitution provide only two avenues by which a charter amendment maybe proposed:it "may be proposedbyinitiative or by the governing body." When an amendment is proposed by initiative, and at least 15 percent ofthe registered voters of the charter city sign the initiative petition, the governing body"shall ... [Submit the initiative] to the voters” at an election not less than 88 days after the date of the order of election. (Elec. Code, 9255, subd. (c), italics added.) The "governing body" has no discretion to do anything other than to place a properly qualified initiative on the ballot.25 (Farlev v. Healey (1967) 67 Cal.2d 325, 327; Save Stanislaus Area 24 Webelieve it is both necessary and appropriate to resolve this threshold issue. It is necessary because if we were to conclude the same meet-and-confer obligations are compelled, regardless of whether persons associated with city governmentare involved in drafting and/or campaigning for a citizen-sponsored initiative, we would haveto affirm PERB's principal determination that City violated the MMBAbyrefusing unions' demandsto meet and confer before placing the CPRI on the ballot, and all of PERB's subsidiary conclusions regarding Sanders's actual or ostensible agencyrelationship to City (even if legally erroneous) would becomesuperfluous. (Cf. Reed v. Gallagher (2016) 248 Cal.App.4th 841, 853 [when decision is correct on any theory applicable to the case, appellate court will affirm the decision regardless of correctness of grounds relied on below to reach conclusion].) We believe resolution ofthe question left open in Seal Beach is also appropriate because it provides some illumination for our analysis of whether City violated its MMBAobligations whenit placed the CPRI on the ballot without first meeting and conferring with the unions. 25 The governing body arguably has someflexibility as to at which election the initiative is presented to the voters (Jeffrev v. Superior Court (2002) 102 Cal.App.4th 1, 30 Farm Economy v. Board ofSupervisors (1993) 13 Cal.App.4th 141, 148 ["local governments havethe purely ministerial duty to place duly certified initiatives on the ballot"}.) Because "[p]rocedural requirements which govern council action . . . generally do not apply to initiatives" (Associated Home Builders etc., Inc. v. City ofLivermore (1976) 18 Cal.3d 582, 594), the courts have repeatedly noted "it 1s well established . . . that the existence of procedural requirements for the adoptions of local ordinances generally does not implya restriction of the powerof [a citizen-sponsored] initiative ...." (DeVita v. County ofNapa (1995) 9 Cal.4th 763, 785; accord, Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 823-824 [procedural requirements of § 65863.6, which must be met before local agency adopts no-growth ordinance, inapplicable to voter-sponsoredinitiative adopting no-growth ordinance].) In contrast, when a governing bodyofa city votes to adopt a proposal for submissionto its voters, such action is a discretionary rather than ministerial determination by the governing body. (See, e.g., Friends ofSierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 187 (Friends ofSierra Madre).) Because ofthe "clear distinction between voter-sponsored and city-council-generatedinitiatives" (id. at p. 189), the courts have repeatedly concluded the same procedurallimitations that would otherwise apply to the samediscretionary determination by a governing bodywill apply 4-10), but PERB cites no authority that such flexibility would have permitted the City Council to refuse to place the CPRI on a ballot without modification in contravention of the mandatory language contained in Elections Code section 9255. 31 to a city council-generated ballot proposal. Thus, in Friends ofSierra Madre, the court held that the procedural mandates of CEQA were required for a ballot measure, generated by a city council in exercise of its discretion, which would removecertain structures from protection as historic landmarks. While similarcitizen-sponsored measures do not require compliance with analogous regulatory procedural prerequisites (see, e.g., Steinv. City ofSanta Monica (1980) 110 Cal.App.3d 458, 460-461; cf. Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1035-1037), Friends of Sierra Madre concludeda city council-sponsoredballot proposal for a discretionary project could not evade compliance with CEQA. (Friends ofSierra Madre, at pp. 186- 191.) In this setting, Sea/ Beach concluded the procedural requirements of the MMBA did apply to a city council-sponsored ballot proposal amending the charter as to matters concerning the terms and conditions of public employment. The court reasoned the meet- and-confer requirements, imposed on public agencies as procedural requirements a public agency mustsatisfy before adopting its final budget for the ensuing year (Seal Beach, supra, 36 Cal.3d at pp. 596-597), were procedural requirements that could coexist with the constitutional powerofa city council to propose a substantive charter amendment. (Id. at p. 600, fn. 11 [noting "there is a clear distinction between the substance ofa public employee labor issue and the procedure by whichit is resolved" and acknowledgingthat althoughsalaries of local employees of a chartercity constitute municipal affairs not subject to general laws, the process by whichsalaries are fixed is matter of statewide 32 concern].) Seal Beach noted that "[a]lthough [section 3505] encourages binding agreementsresulting from the parties’ bargaining, the governing body of the agency- here the city council-retains the ultimate power to refuse an agreement and to makeits own decision. [Citation.] This power preserves the council's rights underarticle XI, section 3, subdivision (b)-it maystill propose a charter amendmentif the meet-and- confer process does notpersuade it otherwise. [{]] We therefore conclude that the meet- and-confer requirementof section 3505 is compatible with the city council's constitutional power to propose charter amendments." (/d.at p. 601, fn. omitted.) The core tenets ofSeal Beach werethat (1) the MMBAwasclearly intended to apply to regulate actions by the governing bodies of chartercities and (2) the MMBA mandates that those governing bodies satisfy the procedural prerequisites (the meet-and- confer process) before unilaterally imposing any changes to the matters within the scope of representation. (Sea/ Beach, supra, 36 Cal.3d at pp. 596-597.) From thosetenets, Seal Beach concluded a governing body constrained by the procedural requirements of the MMBAcannot circumvent the meet-and-confer requirement by using a charter amendmentto unilaterally implement the same changes that would otherwise be subjected to the meet-and-confer requirement. (/d.at p. 602.)26 26 Indeed, Seal Beach specifically noted that "[t]he logical consequenceofthecity's position is, actually, that the MMBA cannotbe applied to chartercities at all. Ifa meet- and-confersession with the city council concerning contemplated charter amendments impinges on the council's constitutional power, what of salary ordinances? Its 'firmly established that the mode and mannerofpassing ordinances1s a municipalaffair. . . and that there can be no implied limitations upon charter powers concerning municipal affairs.’ [(Quoting Adler v. City Council (1960) 184 Cal.App.2d 763, 776-777.)] If 33 In contrast, the courts have refused to subject citizen-sponsoredinitiatives to the same procedural constraints that would apply if the same subject matter were embodied in a city council-sponsored ballot proposal (compare Stein v. City ofSanta Monica, supra, 110 Cal.App.3d at pp. 460-461 with Friends ofSierra Madre, supra, 25 Cal.4th at pp. 186-191), which militates in favor of a conclusion that the procedural meet-and- confer obligation cannot be superimposed ona citizen-sponsoredinitiative addressing matters within the "scope of representation” as that term is used in the MMBA. (Accord, Native American Sacred Site & Environmental Protection Assn. v. City ofSan Juan Capistrano (2004) 120 Cal.App.4th 961, 968 ["it is plain that voter-sponsoredinitiatives are not subject to the procedural requirements that might be imposed onstatutes or ordinances proposed and adopted bya legislative body, regardless of the substantive law that might be involved"].) More importantly, the meet-and-confer requirementsofthe MMBAbyits express terms constrains only proposals by the "governing body" (§§ 3504.5, subd. (a) ["the governing body . . . shall give reasonable written notice... of any ordinance,rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body"] & 3505 ["[t]he governing body . . . shall meet and confer . . . prior to arriving at a determination of policy or course of action].) Becausea citizen-sponsoredinitiative does not involve a meeting and conferring on charter amendmentsis an illegal limitations [sic] on the city council's power, whyis the same nottrue of any ordinance whichaffects 'terms and conditions of public employment?'" (/d. at p. 602, fn. 12.) 34 proposal by the "governing body," we are convinced there are no analogous meet-and- confer requirements for citizen-sponsoredinitiatives.27 PERB's Contrary Analysis Is Unpersuasive The PERB decision ostensibly "decline[d] to decide” the "significant and difficult questions aboutthe applicability of the MMBA's meet-and-confer requirement to a pure citizens’ initiative," which it appeared to deem unnecessary because it concluded the CPRI was not a "pure"citizen-sponsored initiative because of Sanders's involvementin promoting the CPRI. However, PERB nevertheless appeared to concludethecitizen's initiative rights enshrined in article II, section 11, and article XI, section 3, subdivision (b), of the California Constitution would not obviate the meet-and-conferobligations imposed on City by the MMBA.28 In this writ proceeding, PERB and Unionsappearto 27 Indeed, we are convinced that imposing a "meet-and-confer" obligation on a city before it can place a citizen-sponsored initiative on the ballot would also be inconsistent with the "the rule under the MMBA‘that a public agency is bound to so "meet and confer" only in respect to "any agreementthat the public agency is authorized [by law] to make... ." [Cuitation.]' [Citation.] As a practical matter, it would be inappropriate to attribute to the Legislature a purpose of requiring the County to makevery substantial negotiating expenditureson subjects over which the County has no authority to act. Nothing in the statutory language calls for this result. As in other areas of the law, the MMBAisnotto be construed to require meaningless acts." (American Federation of State, etc. Employees v. County ofSan Diego (1992) 11 Cal.App.4th 506, 517.) Because a governing body lacks authority to make any changesto a duly qualifiedcitizen's initiative (Elec. Code, § 9032), and instead must simply place it on the ballot without change (Save Stanislaus Area Farm Economy v. Board ofSupervisors, supra, 13 Cal.App.4th at pp. 148-149), imposing a meet-and-confer obligation on the governing body before it could place a duly qualified citizen's initiative on the ballot would require an idle act by the governing body. - 28 Specifically, PERB's decision reasoned (1) the local electorate’s right to legislate directly is generally co-extensive with the legislative powerof the local governing body, 35 resurrect this argument, asserting the PERB decision does no violenceto the citizen's initiative process. Specifically, they note the Legislature canlimit (orentirely preempt) the localinitiative power on matters of statewide (as opposed to purely local) concern, and contend that because the Supreme Court in Voters concluded a local referendum could not be used to reverse the adoption of a memorandumof understanding (MOU) following negotiations pursuant to the MMBAbecauseallowing suchuseofthe referendum would harm the statewide interest underlying the MMBA,the same conclusion applies equally to the initiative process. Accordingly, PERB and Unions argue that when the electorate seeks to exercise control over matters (such as pension benefits) that would be negotiable subjects under the MMBA,theconstitutional right of initiative mustyield to the statewide objectives of the MMBA,including the procedural _ requirements of the MMBAimposing a meet-and-confer process before proposals impacting negotiable subjects may be adopted.29 (2) the constitutional right of a local electorate to legislate by initiative extends only to municipal affairs and (as such) is preempted by general laws affecting matters of statewide concern, and (3) "[l]egislation establishing a uniform system offair labor practices, including the collective bargaining process between local government agencies and employee organizations representing public employees,is 'an area of statewide concern thatjustifies . . . restriction’ on the local electorate's powerto legislate through the initiative or referendum process” (quoting and relying on Voters for Responsible Retirement v. Board ofSupervisors (1994) 8 Cal.4th 765, 780 (Voters)). These authorities apparently led PERB to conclude that "[w]here local control implicates matters of statewide concern” and the two competing interests cannot beharmonized, "the constitutional right of local initiative is preempted by the general lawsaffecting statewide concerns." 29 PERB's decision did recognize that at least one recent Supreme Court case (Tuolumne Jobs & Small Business Alliance v. Superior Court, supra, 59 Cal.4th 1029) 36 Webelieve PERB and Unions misconstrue, and hence overstate, the import of Voters. The Voters court addressed a distinct and limited issue: whethervoters in a county were entitled to mount’a referendum challenge to a county ordinance (which adopted an MOU impacting county employee pension benefits) under the relevant constitutional and statutory provisions. The court first concluded that article XI, section 1, subdivision (b), of the California Constitution neither authorized norrestricted voters from challenging the county ordinance by referendum. (Voters, supra, 8 Cal.4th at pp. 770-776.) The court, after recognizing courts should apply a liberal construction to the initiative power, with any reasonable doubt resolved in favor of preserving it, opined that "we will presume, absent a clear showing ofthe Legislature's intent to the contrary, that legislative decisions of a city council or board of supervisors-including local concluded certain procedural prerequisites under CEQAthat would apply before a governing body may makea discretionary determination do not apply to adoption of initiatives seeking to enact that same determination. Moreover, PERB acknowledges numerous other courts have reached the same conclusion as to other procedural prerequisites. (See, e.g., Associated Home Builders, Inc. v. City ofLivermore, supra, 18 Cal.3d at p. 594 [holding that state law, which required any ordinance changing zoning or _ imposing specified land userestrictions can be enacted only after noticed hearing before the city's planning commissionandlegislative body, does not apply to initiative enacting same type of ordinance]; Building Industry Assn. v. City of Camarillo, supra, 41 Cal.3d at pp. 823-824 [procedural requirements of § 65863.6, which must be met before local agency adopts no-growthordinance, inapplicable to citizen's initiative adopting no- growth ordinance]; Dwver v. City Council ofBerkelev (1927) 200 Cal. 505; DeVita v. County ofNapa, supra, 9 Cal.4that p. 785 ["the existence of procedural requirements for the adoptions of local ordinances generally does not imply a restriction of the powerof[a citizen-sponsored] initiative"].) However, PERB peremptorily concluded (and argues here) the MMBA's meet-and-confer procedure is somehow "qualitatively different” from these other provisions, and thus exempted from the type of procedural rules that ordinarily do not apply to initiatives. 37 employee compensation decisions [citation]-are subjectto initiative and referendum. Jn this case, the legislative intent to bar the referendum power over the ordinancein question is unmistakable." (Id. at p. 777, italics added.) Specifically, Voters determined the Legislature, by its enactment of section 25123, subdivision (e), evinced an unmistakable legislative intent to bar challenges by referendum to county ordinances specifically related to the adoption or implementation of MOU's. (Voters, at pp. 777- 778.)39 The Voters court thenrejected the petitioner's claim that section 25123, 30. The court explained the legislative procedures for county referenda areset forth in the Elections Code. Thosestatutes provide that all county ordinances, with certain enumerated exceptions, "shall become effective 30 days from andafter the date offinal passage" by the board of supervisors (Elec. Code, § 9141, subd. (b)), and Elections Code section 9144 provides that between the date of the adoption of the ordinance andthe date the ordinance becomesfinally effective 30 dayslater, a petition signed by the requisite numberof voters will suspend the ordinance and compel the board of supervisors to reconsiderit. If the board of supervisorsfails to "entirely repeal" the ordinance, it must be submitted to a countywide referendum. (/d., § 9145.) However, Elections Code section 9141 excepts certain types of county ordinances from the 30-dayeffective date rule, providing instead that these ordinances gointo effect immediately, including ordinances "specifically required by law to take immediate effect." (/d., subd. (a)(2).) These provisions, when read together, "make[] clear that when the Legislature desired to denominate certain types of ordinances that were not subject to county referendum procedures,it did so not by specifically declaring these ordinancesineligible for referendum, but rather by providing that they go into effect immediately." (Voters, supra, 8 Cal.4th at p. 777.) The court then noted section 25123 (whichparallels Elec. Code, § 9141 et seq. in providing all county ordinances shall becomeeffective 30 days from final passage except for certain classes of ordinances, which are to go into effect immediately), specifically provides at subdivision (e) that ordinancesrelated to the adoption or implementation of MOU's with employee organizationsare to take effect immediately. This statutory scheme convinced the court that, by designating MOU ordinancesas a class of ordinances specifically required by law to take effect immediately, the Legislature evinced an unmistakable intent to exempt such ordinances from the referendum procedures. (Voters, supra.) 38 subdivision (e), was unconstitutional, reasoning the Legislature may properly restrict the right of referendum "if this is done as part of the exercise of its plenary powertolegislate in matters of statewide concern," and concluded it was required to uphold section 25123, subdivision (e)'s constitutionality if its referendum restriction, which waseffectively an "implied delegation of exclusive decisionmaking authority to the boards of supervisors to adopt and implement memoranda of understanding between counties and their employee associations" (Voters, at p. 780), could be construedas fulfilling somelegislative purpose of statewide import. The court inferred the legislative purpose of statewide import existed because of the MMBA,which was "a statutory schemein an area of statewide concern thatjustifies the referendumrestriction inherent in section 25123, subdivision (e)." Ud. at pp. 780, 778-784.) Thedistinct and limited issue examined in Voters-whetherthe Legislature clearly and unmistakably intended to delimit the electorate’s referendum rights and (if so) whetherthat constraint was constitutionally permissible-has no applicable counterpart here. Although Voters would support the constitutionality of an enactment by the California Legislature barring citizen initiatives that seek to amend city charterto limit employee compensation, we are unawareof anystatute clearly and unmistakably barring such citizen initiatives! (nor have PERB or Unionsidentified any such bar) and "we 31 Indeed, the Voters court notedthe statute it was considering "is applicable to counties only and has no counterpart for cities," and hence cautioned that "[w]e do not decide whethercity ordinances that adopt or implement memorandumsof understanding pursuant to the MMBAare subject to referendum." (8 Cal.4th at p. 784, fn. 6.) 39 will presume, absent a clear showing ofthe Legislature's intent to the contrary, that . . . local employee compensation decisions[citation] .. . are subject to initiative and referendum." (Voters, supra, 8 Cal.4th at p. 777.) The courts have repeatedly upheld the ability of the electorate of a charter city to legislate on compensationissues by initiative (see, e.g., Spencer v. City ofAlhambra (1941) 44 Cal.App.2d 75, 77-79; Kugler v. Yocum (1968) 69 Cal.2d 371, 374-377 (Kugler)), and the Voters court specifically declined to extend its holding to overrule another decision, United Public Employees v. City and County ofSan Francisco (1987) 190 Cal.App.3d 419, which concluded a charter provision requiringthatall increases in employee benefits be subject to voter approval by referendum was compatible with the MMBA. (Voters, at pp. 781-782 & fn. 4.) Thus, contrary to PERB and Union's arguments, Voters does not support the conclusion that the MMBApreempts, or superimposes proceduralrestrictions on, the right ofcitizens to invokethe initiative process to legislate on compensation issues for the employees of a chartercity. Conclusion Weconclude,in light of the language of the MMBAandthe"clear distinction between voter-sponsored and city-council-generated initiatives" (Friends ofSierra Madre, supra, 25 Cal.4th at p. 189), a city has no obligation under the MMBAto meet and confer before placing a duly qualified citizen-sponsored initiative on the ballot because such an initiative does not involve a proposal by the "governing body" nor could 40 produce an agreementregarding such aninitiative that the public agencyis authorized to make. C. PERB's Determination That City Was Obligated by the MMBAto Meet and Confer Before Placing the CPRI on the Ballot Is Erroneous PERB concluded City owed, but failed to discharge, the meet-and-confer obligations imposed by the MMBAongoverning bodies by placing the CPRI on the ballot without first meeting and conferring with unions. Wehavealready concluded, contrary to PERB's apparent opposing conclusion, a governing body has no obligation to meet and confer before placing a duly qualified citizen-sponsored initiative on the ballot, but does have meet-and-conferobligations before placing on theballot a proposal adopted by the governing bodythat falls within the parameters of sections 3504.5 and 3505.32 Wethusturn to thecritical question: whether PERB correctly held the CPRI was not a duly qualified citizen-sponsored initiative exempted from the meet-and-confer requirements, but was instead a governing-body-sponsoredballot proposal within the ambit of Seal Beach and the meet-and-confer obligations the MMBA imposes onactions 32 The parties have brought to our attention the recent decision in City ofPalo Altov. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, which evaluated whether the City of Palo Alto committed an unfair labor practice whenit failed to meet and consult with the unions before placing a ballot proposal on the ballot. We conclude that case provides no guidance here because it involved whether a governing body owed meet-and-consult obligations before it could place a city council-sponsored ballot proposalon the ballot (id. at p. 1284), and not whether a governing body owes meet-and- conter obligations for a citizen-sponsored initiative when somecity officials and city staff membersassisted in drafting and campaigning for the initiative. 4} that constitute a "determination ofpolicy" (§ 3505) that have been "proposed[for] adopt[ion] by the governing body” (§ 3504.5, subd. (a)) within the meaning of the MMBA. Webegin by noting the evidence was undisputed (and PERB did not conclude to the contrary) the charter amendment embodied in the CPRI was placed on the ballot because it qualified for the ballot underthe "citizen initiative" procedures for charter amendments as provided by thefirst clause ofarticle XI, section 3, subdivision (b), of the California Constitution (which provides that a charter amendment "may be proposed by initiative or by the governing body") and the governing provisions of Elections Code 9200 et seq. We also note there was no evidence, and PERB did notfind, that the charter amendment embodied in the CPRI wasplaced on the ballot because it qualified as a ballot measure sponsored or proposed by the governing body of City under the second clause of article XI, section 3, subdivision (b), of the California Constitution.33 (See 33 Finally, we note the record is devoid of any evidence, and PERB did notfind, that the Proponents of the CPRI were merely straw men used by the City Council (as governing body for City) to achieve placement of a City Council-sponsored proposal onto the ballot as a ruse to circumvent the concomitant meet-and-confer obligations that would have been required for an overt City Council-sponsored ballot proposal. In San Diego Municipal Employees, supra, 206 Cal.App.4th 1447, this court noted the unions' UPC's alleged a significant factual claim-that the CPRI wasnota true citizen-sponsored initiative but was instead a sham device employed to circumvent the meet-and-confer obligations owed by City under the MMBA(id.at p. 1463)-whichin turn raised the question of whether "the CPRI (while nominally a citizen initiative) was actually placed on the ballot by City using straw men to avoid itt MMBAobligations." (/d. at p. 1460.) It was because such activity was arguably prohibited by public employment labor law within PERB's initial exclusive jurisdiction (ibid.) that led us to concludeit waserror to divest PERB ofits ability to conduct proceedings on this issue. (/bid.) However, PERB's decision did not sustain this allegation; to the contrary, PERB's decision appeared to 42 generally Hernandez v. County ofLos Angeles (2008) 167 Cal.App.4th 12, 21 ["Under the California Constitution there are only two methods for proposing an amendmentto a city charter: (1) an initiative qualified for the ballot through signed voterpetitions; or (2) a ballot measure sponsored by the governing bodyofthecity," and noting differing standards applicable to each].) Accordingly, we evaluate whether PERB's decision, which appearsto rest on the theory that the participation by a few governmentofficials and employeesin drafting and campaigning for a citizen-sponsored initiative somehow converted the CPRI from a citizen-sponsoredinitiative into a governing-body-sponsored ballot proposal, is erroneous underapplicable law. We conclude PERB's determination was error. As a preliminary matter, we believe that, under Yamaha, supra, 19 Cal.4th 1, we must apply de novo review of PERB's determination,rather than the more deferential standards of review advocated by PERB and Unions, because PERB's determination turned almost entirely uponits application of the interplay among City's charter provisions (and Sanders's powers and responsibilities thereunder), commonlawprinciples of agency, and California's constitutional and statutory provisions governing charter amendments, and did not turn upon resolution of material factual disputes (to which the deferential "substantial reject the Unions' claims that Proponents acted as agents for City in pursuing the CPRI. Accordingly, we have no occasion to address the distinct issue of whether an entity would violate its meet-and-confer obligationsif its governing body sought to avoidits meet-and-conferobligations by enlisting private citizens to recast a governing-body- sponsored ballot proposal into a citizen-sponsoredinitiative. 43 evidence" standard would apply) or upon PERB's application of legal principles of which PERB's special expertise with the legal and regulatory milieu surrounding the disputed legal principles would warrant deference. Accordingly, we accord no deferenceto PERB's legal conclusionsas to the constitutional or statutory scheme governing initiatives (Overstreet ex rel. NLRB v. United Brotherhood ofCarpenters and Joiners of America, Local Union No. 1506, supra, 409 F.3d 1199, 1208-1209; Azusa Land Partners v. Department ofIndus. Relations, supra, 191 Cal.App.4th at p. 14) or to PERB's application of commonlaw principles of agency over which PERBhasnospecialized expertise warranting deference.34 (Cf. Styrene Information and Research Centerv. 34 PERB,citing Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 965, argues on appeal that because the existence of an agency relationship is a question of fact, we must defer to PERB's determination on appeal as longasit is supported by substantial evidence. Certainly, the existence of an agencyrelationship can present a question of fact. However, when the material facts are undisputed, the question of the existence of a principal-agent relationship is a matter of law for the courts (see, e.g., Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 745), of which PERB hasnospecialized expertise. Indeed, because we will concludethe relevant inquiry is not whether Sanders was an agentfor City(at least in some capacities), but instead whether he wasthe actual or ostensible agentfor the governing body when hehelped draft and campaign for the CPRI, we will examine whether PERB correctly concluded Sanders's actions can be charged to a governing body under commonlaw principles. For example, under commonlaw principles, unless a party (the putative principal) has the legal right to control the action of the other person (the putative agent), the former ordinarily cannot be held vicariously liable for the other person's acts on an agency theory. (See generally Edwards v. Freeman (1949) 34 Cal.2d 589, 592 [absent right of control, no true agency and therefore no imputation of wrongdoer's negligence]; Kap/an, at p. 746 ["Absent a showing that Coldwell Banker controlled or had the right to control the day-to-day operations of Marsh's office, it was not liable for Marsh's acts or omissionsas a real estate broker on a true agency- respondeat superior theory."].) Thus, even 1f the appropriate inquiry was undera "substantial evidence”rubric, there is no evidence the City Council had the right to control Sanders's actions here, and hence there would be no substantial evidence to 44 Office ofEnvironmental Health Hazard Assessment (2012) 210 Cal.App.4th 1082, 1100 [no deference where agency in question hasnoparticularinterpretive advantage over the courts based on some expertise]; Sanchez v. Unemployment Ins. Appeals Bd. (1984) 36 Cal.3d 575, 584-585 [agency denied applicant unemploymentbenefits based on finding employee lacked "good cause” to leave employment; court reviewed lack of good cause finding de novoasissue of law].) It is clear that, apart from charter commission proposals (see generally §§ 34451- 34458), California recognizes only two avenues by which a proposedcity charter amendment maybe placed beforethe electorate: an initiative that qualifies for the ballot through signed voterpetitions, or a ballot proposal that qualifies for the ballot because the governing body(here, the City Council) adopts a resolution placing it on the ballot.35 (Hernandez v. County ofLos Angeles, supra, 167 Cal.App.4th at p. 21.) Whether PERB correctly concluded meet-and-confer obligations were triggered here rests on whetherit properly recast the CPRI from the formerinto the latter. Because PERB employed several variants of agency theory to reformulate the CPRI from a citizen-sponsored proposal to a City Council-sponsored proposal, we examine PERB's theoriesseriatim. support the conclusion Sanders wasthe agent of the City Council in promulgating and promoting the CPRI. 35 Section 34458 et seq. prescribing the methods for a governing bodyto place a proposed charter amendmentbefore the voters, only appears to permit "the governing body" to make the proposal and submitit to the voters for approval. (/d., subd. (a).) 45 Statutory Agency PERB'sfirst theory, which it denominated as a statutory agency theory, focused on the fact that Sanders, both in his capacity as a so-called "strong mayor"andin his role as the lead negotiator for the City Council in labor-related matters,36 was empowered by the City Charter to recommend "measures and ordinances"that he believed to be "necessary and expedient" (San Diego City Charter, art. XV, § 265(b)(3)), including recommendations encompassedin his "State of the City" address. (/d., art. XV, § 265(c).) From these predicates, PERB deemedtheactivities of Sanders in aiding in the drafting of and campaign for the CPRI (both individually and insofar as additional actions were undertaken by the staff of his mayoraloffice at his direction) to have been the actions of the City Council because he was the "statutory agent" for the City Council in labor-related matters. Underthis theory, PERB appeared to rule that (1) the CPRI was sufficiently interwoven with Sanders's proposal such that the CPRI was as much Sanders's proposal as it was the Proponents’ proposal, and (2) Sanders was statutorily empoweredto act on behalf of (and to make proposals on labor-related matters for) the City Council in labor-related matters, and therefore the CPRI became a City Council- 36 Sanders wasthe City's lead negotiatorin collective bargaining with the City's nine represented bargaining units. In this role, Sanders developed proposals for the City's initial bargaining proposals, but the practice was for the Mayorto brief and obtain approval from the City Council on his proposals before he presented them to the Unions. If the negotiations between Sanders and a bargaining unit produceda tentative agreement, however, Council Policy 300-06 still required the agreement be presented to the City Council (or the Civil Service Commission) for determination and adoption. Thus, the ultimate authority to approve a proposal remained with the City Council. 46 sponsored(or at least co-sponsored) proposal carrying meet-and-conferobligations within the meaning of Seal Beach.37 Weconcludereliance onthis theory waserror because it ignores fundamental principles governing the charter amendmentprocess and the conduct of municipal affairs. First, a charter amendment measure only becomes a "proposal"if it qualifies for the ballot under the citizen-sponsored-proposal provisions (for which no meet-and-confer obligation exists) or qualifies for the ballot as a governing-body-sponsoredballot measure (which would trigger meet-and-confer obligations) under section 34458 et seq. PERB's statutory agency theory essentially deemed Sanders's actions to have been those of the City Council, thereby treating the CPRI as a governing-body-sponsored ballot measure, even thoughthe City Charter38 specifically provides al/ legislative powers of 37 PERB also appeared to conclude that, because section 3505 states (in relevant part) that "The governing bodyofa public agency, . . . or other representatives as may be properly designated by law or by such governing body, shall meet and confer," the Legislature contemplated that, in addition to the governing body of an agency, other designated representatives would make policy decisions on behalf of the agency andthat such decisions would trigger meet-and-confer obligations. Wereject this reading ofthe statutory scheme. Section 3504.5, subdivision (a) describes when meet-and-confer obligationsaretriggered (i.e. when there is an "ordinance,rule, resolution,or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body"), and section 3505 describes howthat process should be accomplished, including who(i.e. the "governing body . . . or other representatives as maybe properly designated by law or by such governing body") shall participate on behalf of the governing body. The designation in section 3505 of who shall conduct the meet-and-confer process does not expand who owes the meet-and-conferobligations imposed by section 3405.5. 38 PERB asserts in this proceeding that, althoughit introduced portions ofthe San Diego City Charter to support its statutory agency claim,it is improperfor this court to consider the impact of City Charter provisions not introduced below and notpresently the 47 the City are vested in the City Council (San Diego City Charter, art. II, § 11) as City's legislative body (éd., art. XV, § 270(a)), and provides such legislative power may not be delegated (id., art. If, § 11.1) but must be exercised by a majority vote of the elected councilmembers. (/d., art III, § 15 & art. XV, § 270(c).) PERB cites no law suggesting Sanders wasin fact (or even could have been) statutorily delegated the powerto place a City Council-sponsored ballot proposal on the ballot without submitting it to (and obtaining approval from) the City Council (Kugler, supra, 69 Cal.2d at p. 375 {legislative power maynot be delegated]; City ofRedwood City v. Moore (1965) 231 Cal.App.2d 563, 575-576, disapproved on other grounds by Bishop v City ofSan Jose (1969) 1 Cal.3d 56, 63, fn. 6 [recognizing "the general principle that the public powersor trusts devolved by law or charter upon a governing body cannotbe delegated to others"]), and because there was no evidence suggesting Sanders sought or obtained such approval, PERB erred in concluding Sanders's actions in supporting the CPRI were in fact acts creating a City Council-sponsored ballot proposal. (Ct First Street Plaza Partners v. City ofLos Angeles (1998) 65 Cal.App.4th 650, 667 [where city charter prescribes procedures for taking binding action, those requirements may not be deemedsatisfied by implication subject of a request for judicial notice. However, charter provisionsare judicially noticeable materials (cf. Giles v. Horn (2002) 100 Cal.App.4th 206, 225, fn. 6), and we are aware of no impedimentto judicially noticing those provisions on our own motion (PG&E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1204, fn. 25), particularly where it is necessary to examinethe entirety of a documentto construe the effect of individual portions contained therein. (See generally Dowv. Lassen Irrigation Co. (2013) 216 Cal.App.4th 766, 780-781.) Accordingly, we will take judicial notice of the provisions of the San Diego City Charter. 48 from use of procedures different from those specified in charter]; Dynamic Ind. Co.v. City ofLong Beach (1958) 159 Cal.App.2d 294, 299 ["Whenthe charter provision has not been complied with, the city may not be held liable in quasi contract, and it will not be estopped to deny the validity of the contract"].) PERB nevertheless argues its agency theory was correct because employers (including governmental entities) can be held liable for unfair labor practices committed ' by their agent even whenthe agent's actions were not formally approved by the governing body. PERB alsoasserts its agency theory is supported by a 2008 opinion by a former City Attorney (the Aguirre Memo) that concluded,if the Mayor"initiate[d] or sponsor[ed]" a voter petition drive to place a measure on the ballot to amend the City Charterprovisions related to retirement pensions, City "would have the same meet-and- confer obligations with its unions over a voter-initiative sponsored by the Mayoras with any City proposal implicating wages, hours, or other terms and conditions of employment.” Weare unconvinced the Aguirre Memo undermines ouranalysis, for several reasons. First, a later opinion from the City Attorney rejected the conclusions ofthe Aguitre Memo, whichit described as “overly broad and incomplete in its analysis," and explained why the City Attorney believed the conclusions reached by the Aguirre Memo were unsound.39 Second, PERB cites nothing to suggest the opinions expressed in the 39 Specifically, the later letter explained the Aguirre Memo hadrelied on a misapplication ofJnglewood Teachers Assn. v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767 (Jnglewood), and had been generated in a different context in which 49 Aguirre Memo are somehow binding on City, muchless that such opinionsare entitled to any deference by this court. (Yamaha, supra, 19 Cal.4th 1, 11 ["an agency's legal opinion, however ‘expert,’ . .. commands a commensurablylesser degree ofjudicial deference"].) Because the Aguirre Memoreachedits conclusions without considering (or even mentioning) the limiting language of section 3404.5, which triggers meet-and- confer obligations only as to "any ordinance,rule,resolution, or regulation . . . proposed to be adopted by the governing body," its conclusion that meet-and-confer obligations exist for a Mayoral-initiated voter petition drive (which appears to have rested on the erroneous assumption that a measure supported by the Mayoris equivalent to a measure proposed to be adopted by the governing body) is unpersuasive. Weare equally unpersuadedthat the cases cited by PERBthat upheld unfair labor practices claims against governmental entities for conduct by their agents even whenthe agent's actions were undertaken without approval by the governing body have any relevance here. In the cases relied on by PERB,the agents' unapproved actions involved statements or actions by the agents that are declared to be unfair labor practices without the necessity of any predicate involvement by the governing body. Specifically, the unapproved actions interfered with, restrained, or coerced the employeesin violation of section 3506 of the MMBA(see Public Employees Assn. v. Bd. ofSupervisors (1985) 167 "{i]t was contemplated the Mayor's proposal would be submitted to voters as a City Council proposal." The later letter explained the Aguirre Memodid not address whether any meet-and-confer obligation would exist when "there is'no evidence. . . that the City Council is proposing the [CPRI], or authorizing the Mayor to proposeor sponsorit.” 50 Cal.App.3d 797, 806-807 ["section 3506 is patterned closely after section 8(a)(1) of the NLRA [citation], which providesit is an unfair labor practice for an employerto ‘interfere with, restrain, or coerce' employeesin the exercise ofrights to 'bargain collectively’ "]) or in violation of section 3543.5, subdivision (a). However, both of those sectionsare distinct from section 3504.5, because both ofthose sections condemn specified conduct as unlawful laborpractices, regardless of whetherthat specified conduct was accompaniedbyactions of the governing body.40 In contrast, the unlawful labor practice condemnedbysection 3504.5-the failure to meet and confer-is condemned only if preceded by specified conduct or actions of the governing body,i.e. whenthere is an "ordinance,rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body." Because section 3504.5 requires predicate action by "the governing body” before the 40 The PERB decisions cited by PERB and Unionsare ofa similar ilk. For example, in County ofRiverside (2010) PERB Decision No. 2119-M [34 PERC { 108], the alleged unlawful labor practice included allegations that the defendant interfered with employee rights because of the unauthorized actions of two county officials, who made separate statements to SEIU representatives (who were attempting to create a bargaining unit for "TAP" employees) that such employees would get a union whentheofficials died, retired or the county went out of business, which PERB concluded violated section 3506's proscription against interfering with, restraining, or coercing employeesin the exercise of rights to bargain collectively. (County ofRiverside, at pp. 16-23.) Similarly, in San Diego Unified School Dist. (1980) PERB Decision No. 137E [4 PERC 4 11115], PERB concluded the unauthorized action of two school board membersin placingletters of commendation into the personnel files of nonstriking teachers violated the proscription contained in section 3543.5, subdivision (a), which prohibits a public school employer from imposing or threatening to imposereprisals on employees becauseoftheir exercise of rights guaranteed under the Educational Employment Relations Act, section 3540 et seq. 51 meet-and-confer obligations of section 3505 can be triggered, cases addressing statutes that do not contemplate similar predicate action by a governing body have no persuasive value on the issues presented by the presentaction. Forall of these reasons, we agree with City thatPERB erred in applying "statutory agency”principles to find the CPRI was a de facto governing-body-sponsored ballot proposal that could havetriggered meet-and-confer obligations within the contemplation of section 3504.5. Common LawAgency: Actual Authority PERB's secondset of theories, which it denominated as a common law agency theory, focused on the commonlaw doctrine of when a principal can be charged with the acts of its agent. PERB's articulated rationale for attributing Sanders's support of the CPRI(as putative agent) to the City Council (as putative principal) under "actual authority” principles wasthat actual authority is the authority a principal either intentionally confers on the agent or "by wantof ordinary care" allows the agent to believe himself to possess (Civ. Code, § 2316), and a principal is responsible to third parties for the wrongful acts of an agent in transacting the principal's business regardless of whether the acts were authorizedorratified by the principal. (Civ. Code, §§ 2330, 2338.) Underthis theory, PERB noted (1) Sanders had broad authority as Mayorto recommend legislation to the City Council, (2) he pursued pension reformas a goal for his remaining tenure as Mayorand for the announced purpose of improving the City's financial well-being, and (3) the City Council was aware of Sanders's desire for pension 52 reform and ofhis efforts to implementit through a citizen-sponsoredinitiative. From these facts, PERB concluded Sanders's actions could be charged to the City Council because: "by wantofordinary care, the City Council allowed Sandersto believe that he could pursuea citizens’ initiative to alter employee pensionbenefits, and that no conflict existed between his duties as the City's chief executive officer and spokespersonfor collective bargaining and his nights as a private citizen... . Sanders acted with actual authority because proposing necessary legislation and negotiating pension benefits with the Unions were within the scope of the Mayor's authority and because the City acquiescedto his public promotion ofthe initiative, [and] by placing the measure on the ballot, ... while accepting the considerable financial benefits resulting from the passage and implementation of [the CPRI]."_ (Fn. omitted.) Weconclude PERB's use of a commonlaw agencytheory, which PERB appears to have used in order to find Sanders's actions are to be charged to or deemedtheacts of the City Council, is erroneous.4! "Actual" authority is (1) the authority the principal intentionally gives the agent, or (2) the authority the principal intentionally or negligently 41 Weaccord no deference to PERB's legal conclusions because, although PERB certainly evaluates and applies commonlawprinciples of agency when makingits administrative adjudications (see, e.g., Chula Vista Elementary School Dist. (2004) PERB Decision No. 1647E [28 PERC ¥ 184] [applying agencyprinciples to hold school district liable for acts of school principal that constituted unlawful intimidation in violation of § 3543.5]; Inglewood Unified School Dist. (1990) PERB Decision 792E [14 PERC 4 21057] [concluding ALJ erroneously applied agency principles to hold school district liable for acts of school principal that allegedly constituted unlawful intimidation]), it has no comparative expertise in the commonlaw that would warrant deference by this court (California State Teachers’ Retirement System v. County ofLos - Angeles, supra, 216 Cal.App.4th at p. 55), and we therefore accord no deferenceto PERB's legal analysis of commonlawprinciples. 53 allows the agent to believe he possesses. (Civ. Code, § 2316.) There is no evidence the City Council actually authorized Sanders to act onits behalf to formulate and campaign for the CPRI, nor any evidence Sanders believed he wasacting or had the authority to act on behalfofthe City Council when he took those actions.42 PERB's "Apparent Agency"T,heory43 PERB's decision also relied on commonlaw agencyprinciples of "apparent authority" to support charging the City Council(as putative principal) with the acts of 42 Indeed, PERB appears to have acknowledgedit was not relying on any actual authorization when applying the actual agency theory, because it acknowledged that "[ujnder the circumstances, makingliability dependent on whether the City Council expressly authorized Sanders . . . to pursue a pension reform ballot measure would underminetheprinciple of bilateral negotiations by exploiting the 'problematic nature of the relationship between theMMBAandthelocal[initiative-referendum] power.’ [(Citing Voters, supra, 8 Cal.4th 765, 782.)]" Moreover, when PERB evaluated whether the City Council had " ‘intentionally, or by want of ordinary care'" induced Sanders to believe he was acting on behalf of the City Council when he took those actions, PERB merely recited that Sanders "believed pension reform was needed to eliminate the City's $73 million structural budget deficit" and could be accomplished by the CPRI and theretore "believed himselfto be acting on behalfofthe City." However, PERB erroneously transformed the only "belief" for which there was evidentiary support-that Sanders believed his support for the CPRI wasin the City's best financial interests-into a finding for which there was no evidentiary support: that the City Council somehow induced Sandersto believe his actions in promoting the CPRI were on behalfofthe City Council, Although the evidence supports the finding that Sanders believed his actions promoted the City's best financial interests, there is no evidentiary support he believed he was promoting the CPRI on behalfof the City Council, and therefore this aspect of PERB's actual agency theory lacks support. 43 The courts have interchangeably used the nomenclature of "apparent" agency or "ostensible" agency to describethis principle of vicarious liability. (See, e.g., Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942.) We will refer to it, as did PERB,as "apparent" agency. 54 Sanders (as putative agent) in promulgating and supporting the CPRI. PERB's articulated rationale for attributing Sanders's support of the CPRI to the City Council under "apparent" authority principles was that the City Council intentionally or negligently caused or allowed the employees to reasonably believe Sanders was acting on behalf of the City Council in promulgating and supporting the CPRI within the meaning ofthe apparent authority principles codified in Civil Code section 2317. PERB, although acknowledging that Inglewood, supra, 227 Cal.App.3d 767 required the party asserting an agency relationship by wayof apparent authorityto satisfy the burden of proving the elements of that theory (id. at p. 780) and that "[mJere surmise as to the authority of an agent is insufficient to impose liability on the principal"(id. at p. 782), concluded Inglewood's test was satisfied. PERB reasoned that, because employees knew Sanders wasan elected official and City's chief executive officer, and knew Sanders touted the CPRI as a measurethat wasin the best interests of City, employees "would reasonably conclude[] that the City Council had authorizedor permitted [Sanders] to pursue his campaign for pension reform to avoid meeting and conferring with employee labor representatives." We conclude PERB's "apparent agency"rationale is erroneous, for several reasons. First, apparent agency focuses on whetherthe principal (either intentionally or by want of ordinary care) caused orallowed a third person to believe the agent possessed authority to act on behalf of the principal (Civ. Code, § 2317), and therefore must be established through the conduct ofthe principal and cannot be created merely by a 55 purported agent's conductorrepresentations.44 (Mosesian v. Bagdasarian (1968) 260 Cal.App.2d 361, 367; Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1132.) Thus, even assuming apparent agency could be applied to permit Sanders's actions to somehow "bind" the City Council into being a co-sponsor of the CPRI,45 PERB's decision (and PERB's and Unions'briefs on appeal) cite only the actions of Sanders and his staff as the evidentiary foundation for application of "apparent" agency theory. Neither PERB's decision nor PERB's and Unions'brief's on appealcite any evidencethat the putative principal (the City Council) affirmatively did or said anything that could have caused or allowed a reasonable employee to believe Sanders had been authorized to 44 Wealso notethat "[lJiability of the principal for the acts of an ostensible agent rests on the doctrine of ‘estoppel,’ the essential elements of which are representations madebytheprincipal, justifiable reliance by a third party, and a changeofposition from such relianceresulting in injury." (Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 761.) PERB's decision does not explain how the third element necessary to applicationof the commonlawprinciple wassatisfied, which further underminesthe propriety of invoking that doctrinein this case. 45 Wehavesubstantial doubt an "apparent agency" theory can even be applied here. In Boren v. State Personnel Bd. (1951) 37 Cal.2d 634, the court (although noting that "{e]ven in the field of private contracts, the doctrines of ostensible agency or agency by estoppel are not based upon the representations of the agent but upon the representations of the principal”(id. at p. 643), rejected a plaintiff's effort to invoke "agency by estoppel,” noting that "[t]o invoke estoppel in caseslike the present would have the effect of granting to the state's agents the powerto bind the state merely by representing that they have the powerto do so. It [has been] held that the authority of a public officer cannot be expanded by estoppel. [Citations.]" (/bid.) We need not decide that issue here because, even assumingit could apply, there appears to be no evidentiary support for that theory. 56 act on behalf of the City Council in promoting the CPRI, which undermines PERB's “apparent” agency theory.46 PERB's "apparent" agency theory in the present decision eschewed any reliance on affirmative manifestations by the City Council affirming Sanders's support for the CPRI wason its behalf.47 Instead, PERB relied solely on the fact that Sanders supported the CPRI while occupying an office the responsibilities of which included acting for the City Council as the labor relations point man and recommending measuresonlaborissues to the City Council, and based thereon concluded Sanders had apparentor actual discretionary authority to promote the CPRI on behalf of the City Council, and therefore the City Council can be charged with liability for Sanders's failure to meet and confer over the CPRI. Werecognize that "apparent" agency, like a respondeat superior theory 46 Werecognize that apparent agency can be premised oninaction bythe principal because "where the principal knowsthat the agent holds himself out as clothed with certain authority, and remainssilent, such conducton the part of the principal may give rise to liability." (Preis v. American Indemnity Co., supra, 220 Cal.App.3d at p. 761.) However, even assuming this theory can apply here (but see fn. 45, ante), PERB recognized that Sanders repeatedly stated his efforts in promoting the CPRI werein his capacity as a private citizen, and there is no evidence Sanders ever claimedhis efforts were as the City Council's representative, which renders the City Council's inaction or silence incapable of supporting an "apparent" authority finding. 47 PERB's prior decisions have appeared to acknowledge that " ‘apparent authority to act on behalf of the employer may be found wherethe manifestations ofthe employer create a reasonable basis for employees to believe that the employer has authorized the alleged agent to perform the act in question’ " (Trustees ofthe California State University (2014) PERB Decision No. 2384-H, p. 39, quoting West Contra Costa County Healthcare District (2011) PERB Dec. No. 2164-M,p.7, italics added by Trustees), but PERB's decision here cites no such conduct by the City Council. 57 (see Inglewood, supra, 227 Cal.App.3d at p. 779 [noting courts do not always distinguish betweenostensible agency theory and tort doctrine of respondeat superior]), permits a third party to hold a principalliable for the wrongful conduct ofhis agent within the scope of his authority even where the agent was not operating with the express authorization of his principal when engagingin that conduct. (See generally Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1137-1139; ZL. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 403 [noting ostensible agency principles can be used to hold principal vicariously liable for agent's acts].)48 In the field of labor relations, some cases decided under the Agricultural Labor Relations Act (ALRA) have upheld imposing liability on an employer for an act by an agent that constituted an unfair labor practice, even when such act wasnot expressly authorized by the employer, as long as such act was within the scopeofthe agent's duties.49 (See Vista 48 Many PERBdecisionshave also held that an employer's officials, particularly those whose duties include employee or laborrelations or collective bargaining matters, have been presumedto have acted on behalf of the employer suchthat their commission of acts constituting unfair labor practices were imputed to the employer. (San Diego Unified School Dist., supra, PERB Decision No. 137-E [unauthorized action of two school board members in placing letters of commendation into the personnel files of nonstriking teachers violated the proscription violated "no reprisal" rule of § 3543.5, subd. (a)]; Trustees ofthe California State University, supra, PERB Decision No. 2384- H.) 49 PERB'sbrief in this writ proceeding also asserts it was appropriate for the PERB decision to charge the City Council with Sanders's actions because he "acted within the scope ofhis authority as lead labor negotiator" in supporting the CPRI, which can be sufficient under NLRA precedent (see H. J. Heinz Co. v. NLRB (1941) 311 U.S. 514, 520-521; International Assn. ofMachinists v. NLRB (1940) 311 U.S. 72, 80) to charge an employerwith the wrongful conduct of its supervisory personnel. However, the court in Inglewood recognized NLRA precedentis oflimited value in the Education Employment 58 Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307; Superior Farming Co. v. Agricultural Labor Relations Bd. (1984) 151 Cal.App.3d 100.) However, decisions under the ALRA provide little guidance because "under the ALRA,application of the NLRA standardis statutorily mandated" (nglewood, supra, 227 Cal.App.3d at p. 778), and those standards are not premised on commonlawprinciples (id. at pp. 776- 777; accord, Superior Farming Co., at p. 118 ["employer responsibility for acts of agents Relations Act (EERA) arena because "there are significant differences between the two statutes” and "at times, PERB has evenstated that not only is NLRA precedentnot controlling, it may not even be instructive." (Jnglewood, supra, 227 Cal.App.3d at p. 777.) We note that, under the NLRA, an employeris specifically defined to include "any person acting as an agent of an employer,directly or indirectly" (29 U.S.C. § 152(2)), and explicitly states that "[1]n determining whether any personis acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” (29 U.S.C. § 152(13).) In light of that statutory scheme, the Heinz court explained "[t]he question is not one oflegal liability of the employer in damagesor for penalties on principles of agency or respondeat superior, but only whether the [NLRA] condemnssuchactivities as unfair labor practices so far as the employer may gain from them any advantagein the bargaining process of a kind which the Act proscribes.” (Heinz, at p. 521.) Although NLRA precedent can be relevant in some circumstances(see, e.g., [International Assn. ofFire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272),it is too distinct from the issue presented here: whether the MMBA wasdesigned to permit the governing body to be charged with the unapproved conductofits agents (cf. Inglewood, at p. 778 [rejecting union argument that agent should be includedin definition of employer under EERA,because "[s]ince the Legislature is deemed to be aware ofthe content of its own statutory enactments,it is a reasonable inference that the Legislature would have included the term agentin the definition of employer under the EERA if it wanted schooldistricts - perpetually exposedto liability for any unfair labor practice committed by an agent ofa schooldistrict"]), particularly when the specific conduct-compliance with the meet-and- confer mandate of section 3504.5-is triggered only when there is some action "proposed to be adopted by the governing body" (§ 3504.5, subd. (a)) rather than some action proposed by a putative agent of the governing body. 59 or quasi-agents .. . is not governed by commonlaw agencyprinciples"]; see also fn. 49, ante), nor have PERB or Unions demonstrated there are sufficient parallels between the relevant provisions of the MMBAand the ALRA to permit cases decided underthelatter schemeto provide persuasive guidance underthe distinct scheme of the MMBA. More importantly, affixing vicarious liability upon a principal under common law agencyprinciples, regardless of whetherthe principal authorized the explicit conductat issue, appears to presuppose the agent committed a wrongful act ab initio. (Cf. Bayukv. Edson (1965) 236 Cal.App.2d 309, 320.) This theory may well justify charging a principal with liability for an agent's acts that are inherently wrongful and injurious, such as the act committed by the agent in Vista Verde Farms v. Agricultural Labor Relations Ba., supra, 29 Cal.3d at pp. 317-318 (in which the court noted the agent's acts violated Lab. Code, § 1153 and "would unquestionably constitute an unfair labor practice [citation] if engaged in directly by the employer"), regardless of whether the principal authorized those acts. However, the acts alleged here-an individual's advocacy for a citizen-sponsoredinitiative effecting employee benefits-is not an inherently wrongful act,29 nor are we persuaded the MMBAexplicitly proscribes such conduct merely 50 To the contrary, Sanders's advocacy for the CPRIis not inherently wrongful, but is instead protected underboth statutory law (see §§ 3203 ["[e]xcept as otherwise provided in this chapter, or as necessary to meet requirements of federal law asit pertains to a particular employee or employees,no restriction shall be placed onthepolitical activities of any officer or employee ofa state or local agency"] and 3209 ["[n]othing in this chapter prevents anofficer... of a state or local agency from soliciting or receiving political funds or contributions to promote the passage or defeat of a ballot measure whichwould affect the rate of pay, hours of work, retirement, civil service, or other working conditions ofofficers or employees of such state or local agency, exceptthat a 60 because that individual occupies public office. Instead, the MMBAonly requires compliance with the meet-and-confer mandate of section 3504.5 when there is some action "proposed to be adopted by the governing body"(id., subd. (a)), and has no apparent applicability when the "governing body"is not affirmatively involved with the proposal. We conclude PERB's reliance on commonlaw principles of "apparent" agencyor respondeat superior, in order to charge the City Council (as putative principal) with the acts of Sanders (as putative agent) in promulgating and supporting the CPRI despite the absence of any evidence the City Council actually authorized theseacts, is without legal support and waserroneous. PERB's "Ratification" Theory PERB's decisionalso relied on commonlawprinciplesof "ratification" to support charging the City Council (as putative principal) with the acts of Sanders (as putative agent) in promulgating and supporting the CPRI. Asarticulated by PERB,the City Council adopted Sanders's actions in promulgating and supporting the CPRI as their own measure because: state or local agency mayprohibitor limit such activities by its employees duringtheir working hours"]) and under the Constitution. (See generally Wood v. Georgia (1962) 370 U.S. 375, 394 ["petitioner was an elected official and had the right to enterthe field of political controversy"}; Bond v. Floyd (1966) 385 U.S. 116, 136-137.) Accordingly, commonlaw principles of "apparent" agency or respondeat superior, which permit a third party to hold a principalliable for the wrongful acts of his agent, have no application here. - 6] "An agencyrelationship mayalso be established by adoption or subsequentratification of the acts of another. (Civ. Code, §§ 2307, 2310.) It is well established as a principal of labor law that where a party ratifies the conduct of another, the party adopting such conduct also accepts responsibility for any unfair practices implicated by that conduct. [Citing Compton Unified School District (2003) PERB Decision No. 1518-E at p. 5 and Dowd v. International Longshoremen's Assn., AFL-CIO (11th Cir. 1992) 975 F.2d 779, 785-786.] Thus, ratification may imposeliability for the acts of employeesor representatives, even whenthe principal is not at fault and takes noactive part in those acts. [Citation.] Ratification may be express or implied, and an implied ratification may be found if an employerfails to investigate or respondto allegations of wrongdoing by its employee." PERB's decision, noting it was adequately shown the City Council had actual or constructive knowledge of Sanders's actions in support of the CPRI, relied on two groundsfor applying "ratification" to convert Sanders's support for the citizen-sponsored CPRIinitiative into City Council support forthat initiative: the City Council's inaction (because it was aware of Sanders's support but did not disavow or repudiate his conduct), and the City Council's actions in placing the CPRI on the ballot while rejecting Unions' "meet-and-confer" demands and accepting the financial benefits accruing from its passage. Weconcludenoneofthese grounds support PERB's determination that the City Council can be deemedto have promulgated or supported the CPRI underratification principles.5! 51 Wenotethat, in this writ proceeding, PERB's brief appears to focus almost exclusively on the foundational issue-whether there was substantial evidencethe City Council was aware of Sanders's conduct and "failed to disavow it"-with almost no discussion of whether(in light of that knowledge) the City Council's inaction (failure to disavow), or action (placing the CPRI on the ballot and rejecting Unions’ "meet-and- confer" demands), or acceptance ofthe financial benefits supports the legal conclusion 62 Thefirst basis for PERB'sratification theory appears to be that the City Council did not disavow orrepudiate his conduct. Although the failure to repudiate otherwise wrongful conduct can warrant charging putative principal with responsibility for any unfair practices implicated by that conduct, as was the case in Compton Unified School . District, supra, PERB Decision No. 1518E [27 PERC 56] and Dowdv. International Longshoremen Assn., AFL-CIO, supra, 975 F.2d 779, this presupposes the issue to be determined: whether Sanders's conduct was an unfair labor practice. (See fn. 50, ante.) Weare aware of no law holding that an elected official's support (however vigorous) for a citizen-sponsored ballot measure impacting a subject otherwise negotiable under the MMBAviolates the meet-and-confer provisions (or any other provision) of the MMBA, and we are convinced Sanders wasentitled to support the CPRI (either as an individual or through capitalizing on his office's bully pulpit) because he was not supporting the that the City Council adopted Sanders's support for the citizen-sponsored CPRI as its own underratification principles. Similarly, the Unions'brief is largely silent on this issue, arguing only that (by failing to meet and confer over the CPRI) "the City Council ratified [Sanders's] unlawful scheme... ." This argument-that the City Council's lawfil rejection of Unions’ meet-and-confer demands (based on our conclusion there are no meet-and-conter obligations on citizen-sponsoredinitiatives, see part III.B., ante) converted such conduct into an unlawful rejection of those meet-and-confer demands underratification principles-amountsto a petitio principii argument (Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 1005) and sheds nolight on the propriety of PERB's conclusion. While this lacuna would permit us to deem this claim abandoned (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["[w]hen an issue is unsupported bypertinent or cognizable legal argument it may be - deemed abandoned anddiscussion by the reviewing court is unnecessary"]), we nevertheless examine PERB'sstated basis for its "ratification" theory. 63 proposal as the "governing body," which is the only entity constrained by the meet-and- confer obligations under the MMBA. Moreover,reliance on the City Council's inaction is incompatible with other commonlaw principles ofratification, which recognizethat " ‘ratification can be made only in the mannerthat would have been necessary to confer an original authority for the act ratified... .' (Civ. Code, § 2310.) Thus, where the equal dignities rule applies,it requires formal, written ratification." (van't Rood v. County ofSanta Clara (2003) 113 Cal.App.4th 549, 571; accord, John Paul Lumber Co. v. Agnew(1954) 125 Cal.App.2d 613, 622 [corporation's ratification of alleged agent's unauthorized sale of its property can only be effected througha resolution ofits board of directors when duly assembled].) Accordingly, absent a majority vote of the elected councilmembers (City Charter, art. III, § 15 & art. XV, § 270(c)), it is improper to find that Sanders's support for a citizen- sponsoredinitiative could convert the CPRI into a City Council-sponsored ballot proposal underratification principles. (Kugler, supra, 69 Cal.2d at p. 375; First Street Plaza Partners v. City ofLos Angeles, supra, 65 Cal.App.4th at p. 667 [wherecity charter prescribes procedures for taking binding action, those requirements may notbe satisfied by implication fromuse of procedures different from those specified in charter]; cf. Stowe v. Maxey (1927) 84 Cal.App. 532, 547-549 [declining to apply ratification principles to validate act where act was one county board wasincapable of delegating].) Finally, insofar as PERB premisedratification on the City Council's placing the CPRIon the ballot, and the City Council's acceptanceof the financial benefits accruing 64 fromits passage by the voters, we concludethat theory also lacks legal foundation. This aspect of PERB'slegal analysis rests on the unstated predicate that the City Council could have declined to place the CPRI onthe ballot orto accept the financial benefits accruing from its passage, and that its decisionto act to the contrary adopted Sanders's otherwise unauthorized conductbyratification. However,ratification has no application when the principal is unable to decline the benefits of an agent's unauthorized actions. (See generally Pacific Bone, Coal & Fertilizer Co. v. Bleakmore (1927) 81 Cal.App. 659, 664- 665.) The City Council was required by the Elections Code to place the CPRI before the voters (withoutalteration) becauseit qualified for the ballot (cf. Blotter v. Farrell (1954) 42 Cal.2d 804, 812-813), and PERB cites no authority suggesting the City Council could have elected to ignore the mandates of the CPRI (by refusing to accept the financial benefits accruing from its passage) once the CPRI was approvedbythevoters. Accordingly, the fact the City Council complied with its legal obligations cannot support PERB's ratification theory. D. Conclusion We conclude, for the reasons previously explained, a city has no obligation under the MMBAto meetand confer before placing a duly qualified citizen-sponsoredinitiative on the ballot, and only owes suchobligations before placing a governing-body-sponsored ballot proposalon the ballot. We further conclude PERB's fundamental premise-that under agency principles Sanders's support for the CPRI converted it from a citizen- sponsoredinitiative on which no meet-and-confer obligations were imposedinto a City 65 Council-sponsored ballot proposal to which section 3504.5's meet-and-confer obligations became applicable-is legally erroneous. Because PERB's remaining determinations- that the City Council engaged in an unfair labor practice when it defaulted onits obligations under section 3504.5 and that PERB's "make whole" remedies for that alleged unfair labor practice could order City to de facto refuse to comply with the CPRI- proceeded from this fundamental but legally erroneous premise, PERB's decision must be annulled and remandedfor further proceedings consistent with the views expressedin this opinion. (San Mateo City School Dist. v. Public Employment Relations Bd., supra, 33 Cal.3d at p. 867.) DISPOSITION The Public EmploymentRelations Board (PERB) decision is annulled, and the matter is remanded to PERB with directions to dismiss the complaints and to order any other appropriate relief consistent with the views expressed within this opinion. Each party shall bear its own costs of this proceeding. McCONNELL,P.J. WE CONCUR: KEVIN J. LANE, Clerk of the Court of Appeal, Fourth Appellate District, State of California, does hereby Centify that the precedingis a true and correct copy of the Original ofthis documenvorder/opinionfiled in this Court, as shown by the records of myoffice.HUFFMAN,J. WITNESS, my hand and the Seal of this Court. 04/11/2017 KEVIN J. LANE, CLERK ~ NARES,J. By J A) Deputy Clerk 66 ~ Exhibit B Order Denying Rehearing Court of Appeal Fourth Appellate District COURT OF APPEAL, FOURTH APP} FILED ELECTRONICALLY CATHERINE A. BOLINGet al., Petitioners, V. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; CITY OF SAN DIEGOetal., Real Parties in Interest. DIVISION ONE 05/01/2017 Kevin J. Lane, Clerk STATE OF CALIFOR By: Rita Rodriguez D069626 D069630CITY OF SAN DIEGO, Petitioner, Vv. PUBLIC EMPLOYMENTRELATIONS BOARD, Respondent; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATIONet al., Real Parties in Interest. ORDER DENYING REHEARING THE COURT: Thepetitions for rehearing are denied. McCONNELL,P.J. Copies to: All parties