______________________________________ 

______________________________________________________________________________ 

TO BE PUBLISHED IN THE OFFICIAL RECORDS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 89-1203 

of : 

: APRIL 11, 1991 

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY S. DA VIGO : 

Deputy Attorney General : 

: 

THE HONORABLE BARRY KEENE, MEMBER OF THE CALIFORNIA 

SENATE, has requested an opinion on the following question: 

May the city council of a charter city require that all discussions between elected city

officials and city employees or representatives of city employee organizations concerning matters

within the scope of representation during the meet and confer process be held at a public meeting

of the city council except for those held between the duly designated representatives? 

CONCLUSION 

The city council of a charter city may not require that all discussions between elected

city officials and city employees or representatives of city employee organizations concerning

matters within the scope of representation during the meet and confer process be held at a public

meeting of the city council except for those held between the duly designated representatives. 

ANALYSIS 

The present inquiry concerns the extent to which a city may regulate its employment 

relations. Specifically, it must be determined whether a charter city may prohibit all pertinent

communication between an employee or employee organization representative and an elected city

officer during the meet and confer process, except for (1) the negotiating sessions of the duly

designated representatives and (2) discussions held at a public meeting of the city council. We 

conclude that a charter city may not restrict these "meet and confer" subject matter discussions to

those between the designated representatives or held at a public meeting. 

Besides the city in question, we note that another city has the following two

ordinance provisions: 

1. 89-1203
 
 

"During the Meet and Confer process for the adoption of a Memorandum of

Understanding, it shall be an unfair practice for an elected City Official, or a

classified employee, or any employee, or any person who might reasonably be

inferred to be a representative thereof, other than the City's duly designated and

appointed employee relations representative, to discuss, attempt to discuss, consult,

advocate or meet and confer with an employee organization representative, or a

person who might reasonably be inferred to be a representative thereof, on any

matter within the scope of representation regarding wages, hours, and other terms

and conditions of employment at other than a public meeting of the City Council. 

"During the Meet and Confer process for the adoption of a Memorandum of

Understanding, it shall be an unfair labor practice for an employee organization

representative or a member of such employee organization, or a person who might

reasonably be inferred to be a representative thereof, to discuss, attempt to discuss,

consult, advocate or meet and confer with an elected city official, or a classified

employee, or any person who might reasonably be inferred to be a representative

thereof, other than the City's duly appointed and designated employee relations

representative, on any matter within the scope of representation regarding wages,

hours and other terms and conditions of employment at other than a public meeting

of the City Council or by written correspondence directed to the City Manager for

transmittal to the City Council." 

A third city has the following two ordinance provisions: 

"It shall be an unfair labor practice for any officer of the City and County or

any aide or administrative assistant of any officer of the City and County to meet and

confer, or to attempt to meet and confer with an employee, an employee

organization, or an employee representative, or any agent thereof, other than at a

scheduled public meeting of the Board of Supervisors or a committee meeting of the

Board of Supervisors, on matters which the Employee Relations Director has been

duly authorized to meet and confer on by an appropriate officer, board or

commission of the City and County. 

"It shall be an unfair labor practice for any employee, an employee

organization, an employee representative, or any agent thereof, to meet and confer

or attempt to meet and confer with any officer, aide or administrative assistant to an

officer of the City and County other than at a scheduled public meeting of the Board

of Supervisors or a committee meeting of the Board of Supervisors, on matters which

the Employee Relations Director has been duly authorized to meet and confer on by

an appropriate officer, board or commission of the City and County." 

A. THE MEYERS-MILIAS-BROWN ACT 

Preliminarily, we examine the general provisions of the Meyers-Milias-Brown Act

(Gov. Code, §§ 3500-3510; "MMB Act")1 governing negotiations with respect to employment 

relations by local public agencies. Under the MMB Act, public employees are assured the right to

form, join, and participate in the activities of employee organizations of their own choosing for the

purpose of representation on all matters of employment relations. (§ 3502.) Recognized employee 

organizations have the right to represent their members. (§ 3503.) The governing body of a public 

1

All section references are to the Government Code unless otherwise specified. 

2. 89-1203
 
agency, or its designated officers or representatives, must meet and confer in good faith regarding

wages, hours, and other terms and conditions of employment with representatives of a recognized

employee organization, and must consider fully such presentations as are made by the organization

on behalf of its members prior to arriving at a determination of policy or course of action. (§ 3505.) 

To "meet and confer in good faith" is defined in section 3505 as follows: 

"`Meet and confer in good faith' means that a public agency, or such

representatives as it may designate, and representatives of recognized employee

organizations, shall have the mutual obligation personally to meet and confer

promptly upon request by either party and continue for a reasonable period of time

in order to exchange freely information, opinions, and proposals, and to endeavor to

reach agreement on matters within the scope of representation prior to the adoption

by the public agency of its final budget for the ensuing year. The process should

include adequate time for the resolution of impasses where specific procedures for

such resolution are contained in local rule, regulation, or ordinance, or when such

procedures are utilized by mutual consent." 

In Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 61-62, the

Supreme Court stated with respect to the requirements of section 3505: 

"Thus 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 process is not binding, it requires that the parties

seriously `attempt to resolve differences and reach a common ground.' (Placentia 

Fire Fighters v. City of Placentia (1976) 57 Cal.App.3d 9, 25.) The public agency

must fully consider union presentations; it is not at liberty to grant only a perfunctory

review of written suggestions submitted by a union." 

As for a city's or county's authority to adopt rules and regulations in administering

the MMB Act, section 3507 provides in part: 

"A public agency may adopt reasonable rules and regulations after

consultation in good faith with representatives of an employee organization or

organizations for the administration of employer-employee relations under this

chapter (commencing with Section 3500)." 

Pursuant to section 3507, "local government agencies [have] the power to establish and enforce rules

governing relations with their own employees." (International Brotherhood of Electrical Workers 

v. City of Gridley (1983) 34 Cal.3d 191, 197; see Vernon Fire Fighters v. City of Vernon (1980) 107

Cal.App.3d 802, 814.) 

The rule-making authority of a local agency may not, however, be used to "frustrate

the declared policies and purposes of the MMB Act." (Huntington Beach Police Officers' Assn. v. 

City of Huntington Beach (1976) 58 Cal.App.3d 492, 502; accord, People ex rel. Seal Beach Police 

Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 597; International Brotherhood of 

Electrical Workers v. City of Gridley, supra, 34 Cal.3d at 198; Vernon Fire Fighters v. City of

Vernon, supra, 107 Cal.App.3d at 814-815.) In Huntington Beach Police Off. Assn. v. City of

Huntington Beach, supra, 58 Cal.App.3d 492, 503, the court concluded that a city acted improperly

in adopting a resolution in direct conflict with the MMB Act by cutting off communication between 

it and its employees concerning a matter within the scope of representation. 

3. 89-1203
 
The overall purposes of the MMB Act are set forth in section 3500 as follows: 

"It is the purpose of this chapter to promote full communication between

public employers and their employees by providing a reasonable method of resolving

disputes regarding wages, hours, and other terms and conditions of employment

between public employers and public employee organizations. . . . This chapter is

intended . . . to strengthen merit, civil service and other methods of administering

employer-employee relations through the establishment of uniform and orderly

methods of communication between employees and the public agencies by which

they are employed." 

B. CONSTITUTIONAL CONSIDERATIONS 

With this statutory background in mind, we turn to the issue of whether the proposed

restriction upon discussions held in private would be constitutional or whether specifically it would

violate constitutional freedoms of speech and petition. The First Amendment of the United States 

Constitution provides: 

"Congress shall make no law . . . abridging the freedom of speech, or of the

press, or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances." 

Subdivision (a) of section 2 of Article I of the California Constitution states: 

"Every person may freely speak, write and publish his or her sentiments on

all subjects, being responsible for the abuse of this right. A law may not restrain or 

abridge liberty of speech or press." 

Section 3 of Article I of the California Constitution provides: 

"The people have the right to instruct their representatives, petition

government for redress of grievances, and assemble freely to consult for the common

good." 

While the First Amendment is applicable to state and local governments through the

due process clause of the Fourteenth Amendment (see, e.g., Edwards v. South Carolina (1963) 372

U.S. 229, 235), the California Constitution is "more definitive and inclusive" in protecting the right

of speech and other guarantees of the First Amendment. (Robins v. Primeyard Shopping Center

(1979) 23 Cal.3d 899, 908; Wilson v. Superior Court (1975) 13 Cal.3d 652, 658.) Accordingly, we

will look first to California case law to determine whether the proposed council restrictions placed

upon the rights of speech and petition would violate the California Constitution. 

In Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, the Supreme

Court considered various restrictions placed upon lobbyists under provisions of the Political Reform

Act of 1974. The court upheld certain of the requirements but found others unconstitutional. With 

respect to requiring lobbyists to register, to report payments received for lobbying activities, to

describe the objectives of their lobbying activities, and to limit their political gifts to $10 in any

month for any candidate or officer, the court stated: 

"Among the fundamental rights guaranteed by the First Amendment to the

United States Constitution is the right to "petition the Government for a redress of

grievances." The lobbyist's function obviously is to exercise such right on behalf of 

4. 89-1203
 
his employer. The challenged statutes do not directly limit or restrict the right to 

petition. Rather, the registration and reporting requirements impose burdens on the

right to petition, and the gift limitation affects the form of the petition. All may

petition provided they bear the burden of registration and reporting and do not offer

excessive gifts. 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"Although a fundamental interest may be involved, both the United States

Supreme Court and this court have recognized that not every limitation or incidental

burden on a fundamental right is subject to the strict scrutiny standard. When the 

regulation merely has an incidental effect on the exercise of protected rights, strict

scrutiny is not applied. It is only when there exists a real and appreciable impact on,

or a significant interference with the exercise of the fundamental right that the strict

scrutiny doctrine will be applied. [Citations.] 

"In United States v. Harriss (1954) 347 U.S. 612, 625-626, the court upheld

the Federal Regulation of Lobbying Act which required lobbyists to report lobbying

receipts and expenditures against challenges that it violated the guarantees of

freedom to speak, publish, and petition. Pointing out that Congress had not sought

to prohibit lobbying, the court concluded that Congress has a valid interest in

determining the source of voices seeking to influence legislation and could

reasonably require the professional lobbyist to identify himself and disclose his

lobbying activities. This court has also upheld reasonable statutes requiring

disclosure of financial activities of persons engaged in political processes.

[Citations.] 

"As pointed out above, the registration, reporting, and gift provisions are not

direct limitations on the right to petition for redress of grievances. Application of the

burdens of registration and disclosure of receipts and expenditures to lobbyists does

not substantially interfere with the ability of the lobbyist to raise his voice. While 

the burden of disclosure might be substantial for those engaging in extensive

lobbying activities, the burden is not great when viewed in the context of the total

activities engaged in. Requiring a person engaged in a business to describe it and to

report its receipts and expenses may not be viewed in our commercial society as a

substantial impediment to engaging in that business. 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"The limitation on lobbyist gifts, affecting only the form of the petition, also

does not have a real and appreciable impact on the legitimate exercise of the rights

of petition and speech, and the strict scrutiny test is inapplicable." (Id., at pp. 46-48.) 

Applying the principles set forth in the Fair Political Practices case, we believe that 

the proposed local regulation would be subject to the "strict scrutiny doctrine," since its application

would "have a real and appreciable impact on the legitimate exercise of the rights of petition and

speech." 

It is true that the employees and officials would be able to discuss their concerns in

a public meeting of the city council. This alternative, however, is not sufficient to avoid the strict 

scrutiny test. In California Newspaper Publishers Assn., Inc. v. City of Burbank (1975) 51

Cal.App.3d 50, 54, for example, the court stated the applicable principles as follows: 

5. 89-1203
 
"Equally without merit are the city's contentions that the ordinance is not

unconstitutional on its face because, first, newsracks are not prohibited on private

property, and, second, newsracks are permitted on the public Golden Mall. `[O]ne

is not to have the exercise of his liberty of expression in appropriate places abridged

on the plea that it may be exercised in some other place.' (Schneider v. State (1939)

308 U.S. 147, 163.) The appropriate focus is on the blanket prohibition and not on

those areas left untouched. Thus, in Wollum v. City of Palm Springs, supra, 59 

Cal.2d 276, the court, in holding invalid an absolute prohibition on the use of

stationary sound trucks (id., at pp. 287-288), did not consider the ordinance was

redeemed by the fact that moving sound vehicles were to some extent permitted. (Id., at pp. 278-279. See also, Van Nuys Pub. Co. v. City of Thousand Oaks, supra, 5 

Cal.3d 817, 822; Young v. Municipal Court, 16 Cal.App.3d 766, 770-771.) 

"The suggestion that access to private facilities would be constitutionally

adequate was rejected in Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S.

546, in which Chattanooga officials refused to permit the play `Hair' to be shown in

the municipal theatre. (420 U.S. at p. 548.) The Supreme Court was not impressed

with the fact that there might be other theatres in town. `Even if a privately owned

forum has been available, that fact alone would not justify an otherwise

impermissible prior restraint. . . .[¶] Thus, it does not matter for purposes of this case

that the board's decision might not have had the effect of total suppression of the

musical in the community. Denying use of the municipal facility under the

circumstances present here constituted the prior restraint. That restraint was final.' 

(420 U.S. at pp. 556-557.)" 

The strict scrutiny test is applicable even though the proposed prohibition would only

apply to a limited number of persons. In Henrico Professional Firefighters v. Bd. of Sup'rs (4th Cir.

1981) 649 F.2d 237, the court considered whether a local board could allow comment by individuals

and representatives of associations but "deny the opportunity to be heard to a representative of an

employee association." (Id., at p. 241.) The court ruled: 

"When governmental action deprives a person or organization of the right to

communicate its views, but at the same time allows other persons or organizations

to speak, the Supreme Court sometimes analyzes the case under the First

Amendment, and sometimes under the Equal Protection Clause of the Fourteenth

Amendment. [Citation.] Governmental action permitting some to speak, but

denying the opportunity to others, raises an `equal protection claim ... [that] is

closely intertwined with First Amendment interests.' [Citation.] 

"In any event, under either the First or the Fourteenth Amendment, the

determination that a fundamental interest in speech has been abridged requires the

government in cases such as the one at hand to advance a compelling justification for

denying a particular person or entity the opportunity to speak.... 

"The Supreme Court has long held that public employees may not `be 

compelled to relinquish the First Amendment rights they would otherwise enjoy as

citizens to comment on matters of public interest in connection with the operation

of the public [institutions] in which they work.' [Citation.]" 

The strict scrutiny test is applicable even though the proposed prohibition is directed

at "lobbying" activities concerning economic and labor relations issues. In Moffett v. Killian (D.

Conn. 1973) 360 F.Supp. 228, 231, the court stated: 

6. 89-1203
 
"The mere fact, however, that one earns a living by exercising First

Amendment rights does not vitiate the ability to assert those rights.... 

"Furthermore, one does not forfeit First Amendment rights because he pays

someone to exercise them for him." 

In Fritz v. Gorton (1974) 83 Wash.2d 175 [517 P.2d 911, 929], the Washington Supreme Court 

concluded: 

"That right to petition, of course, is not limited to mass demonstrations,

highly publicized in newspaper headlines and in television news reports.... We take 

special and emphatic notice of the fact that lobbyists perform important and

constructive functions in communicating the wishes of the interests they represent

to the appropriate organs of government. In our opinion, the role of the lobbyist ...

is clearly assured and protected by the first amendment right to petition government." 

In Henrico Professional Firefighters v. Bd. of Sup'rs, supra, 649 F.2d at 246, the court said with 

respect to the "economic" content of the speech in question: 

"Finally, that the proposed communication happens to involve a local

problem rather than a `public issue,' and advances `economic' rather than `political'

interests, does not remove the shield of the First Amendment. As has been stated by

Chief Judge Haynsworth, it is no answer to `equate the petition here involved with

internal bickering between an employer and his employee. The First Amendment is 

not limited in its protection to issues of great social and political impact, ... and [the

Association's] petition should not be denied such protection simply because it deal[s]

with matters of a local nature.' [Citation.] `The grievances for redress of which the

right of petition was insured' are not confined to religious or political causes, but

include other fields of human interest, including business, labor, or economic

activity. [Citation.]" (Fn. omitted.) 

Applying the strict scrutiny test, then, we find that it requires the governmental

interest sought to be advanced to be a compelling one, and the restriction must be narrowly focused

so as to "operate without unnecessarily circumscribing protected expression." (Brown v. Hartlage

(1982) 456 U.S. 45, 54; see Police Dept. of Chicago v. Mosley (1972) 408 U.S. 92, 101; Shelton v. 

Tucker (1960) 364 U.S. 479, 488; Thornhill v. Alabama (1940) 310 U.S. 88, 96.) 

What is the "compelling justification" for the proposed ban in question? Would, for 

example, the confidential discussions adversely affect the negotiations taking place at the meet and

confer sessions? As previously noted, the primary goal of the MMB Act is "to promote full

communication between public employers and their employees." (§ 3500, emphasis added.) It has 

not been demonstrated here that too much discussion would be harmful to the collective bargaining 

process. 

Moreover, the "discussions" in question would not necessarily be "negotiations" at 

all. In Madison Sch. Dist. v. Wisconsin Emp. Rel. Comm's (1976) 429 U.S. 167, the Supreme Court

distinguished between a school teacher presenting his views at a school board meeting and

"negotiations" held in a collective bargaining session. The court stated: 

"Holmquist did not seek to bargain or offer to enter into any bargain with the

board, nor does it appear that he was authorized by any other teachers to enter into

any agreement on their behalf. Although his views were not consistent with those 

7. 89-1203
 
of MTI [the teachers' union], communicating such views to the employer could not

change the fact that MTI alone was authorized to negotiate and to enter into a

contract with the board. 

"Moreover the school board meeting at which Holmquist was permitted to

speak was open to the public. He addressed the school board not merely as one of

its employees but also as a concerned citizen, seeking to express his views on an

important decision of his government." (Id., at pp. 174-175, fn. omitted.) 

Similarly, in Henrico Professional Firefighters v. Bd. of Sup'rs, supra, 649 F.2d at 244, the court 

concluded: 

"Consequently, the Board's position in the instant case is defective because

it equates advocacy with negotiation. The present case involves the right of the

Association to speak on behalf of its members, not to force the Board to arbitrate or

negotiate with it concerning labor grievances. [Citation.] 

"Similarly, although here the subject of the Association's contemplated

speech apparently concerns complaints of firefighters about the County's handling

of `heart-lung' disabilities, the mere presentation of the Association's position on that

issue does not constitute `negotiation' or `grieving.' No direct back-and-forth dealing

is contemplated here. Nor has the Association demanded that a special grievance

meeting be set up for it. The Association claims no right to be the employees'

exclusive representative, or to be designated the employees' agent for resolving

particular employer-employee disputes. `Representation' in the labor context means,

of course, something more extensive, more exclusive and more enduring than the

simple `representation' involved in standing up to speak on another's behalf." (Fn.

omitted.) 

Even assuming the charter city in question may have a compelling interest in

regulating labor discussions with its employees, the proposed prohibition on speech must still meet

the "narrowly drawn" requirement of the strict scrutiny test. In the lobbyist cases, for example,

disclosure requirements were upheld only where they "indirectly" and "not substantially" affected

the rights of speech and petition. (See Fair Political Practices Com. v. Superior Court, supra, 25 

Cal.3d at 47.) 

We do not find here, however, such justifiable precision and narrow focus.

Alternatives less obtrusive may well suffice to meet the needs of the city. A "zealous solicitude for 

rights falling within the protection of the First Amendment" (Burton v. Municipal Court (1968) 68

Ca.2d 684, 691) has not been demonstrated. Rather, there appears to be a lack of "perception that

free discussion concerning the issues involved in a labor dispute is ... `indispensable to the effective

and intelligent use of the processes of popular government to shape the destiny of modern industrial

society.'" (Pittsburgh United School Dist. v. California School Employees Assn. (1985) 166

Cal.App.3d 875, 888-889, quoting Thornhill v. Alabama, supra, 310 U.S. at 103; see also, Brown 

v. Hartlage, supra, 456 U.S. at 52; Abood v. Detroit Board of Education (1977) 431 U.S. 209, 230­

231; Mills v. Alabama (1966) 384 U.S. 214, 218-219; Eastern R.R. Conference v. Noerr Motor 

Freight (1961) 365 U.S. 127, 137-138.) While collective bargaining laws must be administered in

a manner to accomplish their salutary purposes, "it is even more imperative that the labor relations

laws, particularly when promulgated by the self-interested public employer, cannot substitute for

the First Amendment." (Henrico Professional Firefighters v. Bd. of Sup'rs, supra, 649 F.2d at 244.) 

8. 89-1203
 
It has not been established that the proposed ban on discussions between city

employees and officials meets the compelling interest or narrowly tailored requirements of the strict

scrutiny test. We thus conclude that the city council of a charter city may not require that all

discussions between elected city officials and city employees or representatives of city employee

organizations concerning matters within the scope of representation during the meet and confer

process be held at a public meeting of the city council except for those held between the duly

designated representatives. 

* * * * * 

9. 89-1203