1

Filed 3/24/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

PACIFICA FIREFIGHTERS 

ASSOCIATION,

Plaintiff and Appellant,

v.

CITY OF PACIFICA,

Defendant and Respondent.

 A161575

 (San Mateo County

 Super. Ct. No. 19CIV04212)

In 1988, the voters in the City of Pacifica (City) approved Measure F, 

which prescribes procedures to be followed in the event of an impasse in labor 

disputes with the City’s firefighters. Under this measure, absent other 

agreement, the top step salaries of fire captains in the city are to be set at an 

amount not less than the average for top step salaries of fire captains in five 

neighboring cities. After an impasse in negotiations occurred in 2019, the 

Pacifica Firefighters Association (PFFA) sought a writ of mandate and 

declaratory relief requiring the City to follow Measure F. The trial court 

denied the petition, finding Measure F preempted by state law and an 

unlawful delegation of power. We affirm.

BACKGROUND

Measure F

Measure F, an ordinance entitled “Firefighter Dispute Resolution

Process Impasse Resolution Procedures: Minimum Wages and Benefits For 

Firefighters,” was adopted by the City’s voters in 1988. The stated purpose of 
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the ordinance is “to resolve an impasse in wage and benefit negotiations 

should they occur” between representatives of the City and of the recognized 

firefighter organization “and to thereafter adopt minimum salary and 

benefits for firefighters.” 

Pursuant to Measure F, if representatives of the City and/or the 

firefighters declare an impasse in negotiations over “wages, hours, benefits,

and working conditions,” the parties must, within five days, see the 

assistance of a mediator “selected by the division of Conciliation of the 

Department of Industrial Relations of the State of California.” If no 

agreement has been reached after 15 days of mediation, either party may 

request the state conciliation service to name a panel of seven factfinders, 

from which one neutral factfinder is selected by the parties through an 

“alternate striking process”; that neutral factfinder joins one named by the

City and one named by the firefighters to form a three-member factfinding 

board. 

The “Factfinding Board” (Board) must “undertake an investigation, 

conduct hearings and receive evidence from City and firefighter 

representatives on all outstanding issues in dispute” and then make a 

recommendation on each disputed issue. Section 2(d) of Measure F provides: 

“The recommendations shall not be binding. On the issue of salaries and 

benefits, the recommendations of the Board shall be in conformity with the 

prevailing wage criteria established in Section 3 of this ordinance.” After a 

15-day period during which the parties must resume negotiations, the 

Board’s findings and recommendations on any issues remaining in dispute 

“shall be submitted to the City Council for its consideration and 

implementation.” 
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Section 2(e) of Measure F provides: “The City Council shall carefully 

consider all the recommendations of the Factfinding Board. It is the 

intention of this ordinance that the recommendations of the Factfinding 

Board should be adopted by the City Council unless said recommendations 

are not supported by the findings of the Board or the findings are not 

supported by the preponderance of evidence received by the Board. In the 

event the City Council does not adopt the recommendations of the 

Factfinding Board on any issue, the City Council shall then make its own 

written findings on such issues. Such findings must be supported by the 

preponderance of evidence received by the Factfinding Board. On the subject 

of wages and benefits, the City Council shall follow and apply the prevailing 

wage and benefit criteria set forth in Sections 3(a) and 3(b) of this ordinance.” 

Pursuant to section 3(a) of Measure F, “Unless otherwise agreed by 

City and firefighter representatives following the adoption of this ordinance, 

the top step salaries of Fire Captains in the City of Pacifica shall be fixed 

retroactively to July 1 of each fiscal year at an amount which is not less than 

the average for top step salaries for Fire Captains in the Cities of South San 

Francisco, Daly City, San Mateo, San Bruno and Redwood City. Salaries for 

top step Firefighter-Engineers shall be adjusted to a rate of 15.3% below the 

salary for top step Fire Captains. The percentage rated step increases below 

the top step Fire Captain and the top step Firefighter-Engineer shall be 

increased proportionately to the increases in the top steps for said 

classifications.” 

Section 3(b) of Measure F states that employer costs for medical 

insurance for fire captains, firefighter-engineers and their dependents, and 

employer costs for vacations, holidays, educational incentives, sick leave, nonsafety related uniform costs and retirement benefits, “shall be totaled and 
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divided by the number of actual employees in the represented unit. Said 

costs shall then be compared to and maintained at not less than the employer 

costs and employer incurred costs of such benefits for Firefighters, Fire 

Engineers and Fire Captains actually employed in the cities identified in 

Section 3(a) of this ordinance. It is the intention of this ordinance that, 

unless otherwise agreed by City and firefighter representatives, that the City 

Council should follow the recommendations of the Factfinding Board in 

allocating the costs prescribed by this subsection unless said findings are not 

supported by a preponderance of the evidence received by the Board.”

Meyers-Milias-Brown Act

“In general, labor relations between local government employers and 

employees are regulated by the Meyers-Milias-Brown Act (MMBA), 

Government Code section 3500 et seq.” (Service Employees Internat. Union v. 

Superior Court (2001) 89 Cal.App.4th 1390, 1394.) “[T]he MMBA has two 

purposes: (1) to promote full communication between public employers and 

employees; (2) to improve personnel management and employer-employee 

relations within the various public agencies. Those purposes are to be 

achieved by establishing methods for resolving disputes over employment 

conditions and for recognizing the right of public employees to organize and 

be represented by employee organizations. Section 3500 states, however:

‘Nothing contained herein shall be deemed to supersede the provisions of 

existing state law and the charters, ordinances, and rules of local public 

agencies which establish and regulate a merit or civil service system or which 

provide for other methods of administering employer-employee 
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relations. . . .’ ” (Los Angeles County Civil Service Com. v. Superior Court 

(1978) 23 Cal.3d 55, 62; Gov. Code, § 3500.)1

The MMBA requires a public employer to meet and confer in good faith 

with the recognized employee organization on wages, hours, and other terms 

and conditions of employment (§ 3505), and provides procedures to be 

followed if the parties fail to reach agreement. The parties may “together” 

agree upon the appointment of a mediator mutually agreeable to both. 

(§ 3505.2.) If there is no mediation, or if mediation is not successful, the 

employee organization may request submission of the parties’ differences to a 

“factfinding panel” comprised of three members, one selected by each of the 

parties and a third selected by the Public Employment Relations Board. 

(§ 3505.4, subd. (a).) The factfinding panel must meet with the parties and 

“may make inquiries and investigations, hold hearings, and take any other 

steps it deems appropriate.” (§ 3505.4, subd. (c).)

The panel is required to “consider, weigh, and be guided by” eight 

enumerated criteria: (1) “State and federal laws that are applicable to the 

employer”; (2) “Local rules, regulations, or ordinances”; (3) “Stipulations of 

the parties”; (4) “The interests and welfare of the public and the financial 

ability of the public agency”; (5) “Comparison of the wages, hours, and 

conditions of employment of the employees involved in the factfinding 

proceeding with the wages, hours, and conditions of employment of other 

employees performing similar services in comparable public agencies” (6) 

“The consumer price index for goods and services, commonly known as the 

cost of living”; (7) “The overall compensation presently received by the 

employees, including direct wage compensation, vacations, holidays, and 

1 Further statutory references are to the Government Code unless 

otherwise indicated.
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other excused time, insurance and pensions, medical and hospitalization 

benefits, the continuity and stability of employment, and all other benefits 

received”; and (8) “Any other facts . . . which are normally or traditionally 

taken into consideration in making the findings and recommendations.” 

(§ 3505.4, subd. (d).)

The panel must “make findings of fact and recommend terms of 

settlement,” which must be submitted in writing to the parties and, 

subsequent to their receipt, made available to the public.” (§ 3505.5, 

subd. (a).) The panel’s findings and recommendations “shall be advisory 

only.” (Ibid.) As relevant here, “[a]fter any applicable mediation and 

factfinding procedures have been exhausted,” the public employer “may, after 

holding a public hearing regarding the impasse, implement its last, best, and 

final offer.” (§ 3505.7.) 

This Case

According to the parties’ stipulated facts, the City (as of January 2020) 

employed six fire captains and 12 firefighters, including three vacant 

firefighter positions expected to be filled beginning January 27, 2020. In 

October 2018, the parties began negotiations for a new contract to replace the 

“Memorandum of Understanding” that was to expire at the end of that year. 

The City initially offered a two percent salary increase per year for three 

years, for all PFFA bargaining unit members. On February 15, 2019, the 

City increased its offer to a four percent salary increase in the first year 

(adding a two percent “ ‘market equity adjustment’ ” to the originally offered 

two percent salary increase in the first year), followed by two percent

increases in the second and third years. On March 6, 2019, PFFA declared 

an impasse and its intent to invoke Measure F procedures if an agreement 

could not be reached in mediation. The City “stated that it would follow the 
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Measure F procedures only to the point where they diverged from the 

requirements of the [MMBA].” Mediation was unsuccessful and, on April 24, 

2019, PFFA stated “it would like to proceed to factfinding pursuant to 

Measure F and, absent a change in the City’s position, PFFA would file a 

Petition for Writ of Mandate and Complaint for Injunctive and Declaratory 

Relief.”

The procedures and standards in Measure F have never previously 

been applied to set firefighters’ compensation in Pacifica. As of May 2019, 

“[w]ithout adjustments for health care benefits and other elements of total 

compensation, the top step salaries for Fire Captains and Firefighters in the 

City of Pacifica . . . were “approximately 18.15% and 21.8% less respectively 

than the average for top step salaries for Fire Captains and Firefighters in 

the cities of South San Francisco, Daly City, San Mateo, San Bruno, and 

Redwood City.” If firefighter salaries in Pacifica had been set pursuant to 

Measure F in fiscal year 2019, without adjustments for health care payments, 

the city council would have had to increase salaries for top step fire captains 

by approximately 18.15 percent and top step firefighters by 21.8 percent. 

PFFA filed its amended verified first amended petition for writ of 

mandate (Code Civ. Proc., § 1085) and complaint for declaratory and 

injunctive relief (Code Civ. Proc., § 1060) on September 4, 2019, seeking “to 

enforce the plain language of Measure F as the parties’ legally binding and 

non-discretionary vehicle for factfinding and resolving the current impasse in 

wage and benefit negotiations.” The City answered and, after receiving briefs 

from the parties, the trial court issued a tentative ruling denying the petition. 

The court concluded Measure F is preempted by the MMBA and constitutes 

an unlawful delegation of power. As to the former, the court found two 

provisions of Measure F conflict with the MMBA. First, the mandate of 
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section 3 of Measure F that, absent agreement otherwise, salaries must be 

fixed at an amount not less than the average in the other jurisdictions, 

conflicts with the MMBA’s authorization for public agencies to unilaterally 

impose their last, best, and final offer if negotiations fail. Second, Measure 

F’s requirement that the factfinding board’s recommendation be in 

conformity with the prevailing wage criteria in section 3 of the ordinance

conflicts with the MMBA’s requirement that the factfinding board weigh 

specified factors, including the interests and welfare of the public and 

financial ability of the public agency when developing any recommendation. 

(§ 3505.4, subd. (d)(4).) The court found Measure F “constitutes an unlawful 

delegation of power by the electorate” because, since Pacifica is a general law 

city, the city council has exclusive authority to fix compensation for 

appointive officers and employees (§ 36506) and a local initiative usurping 

this authority is unenforceable. After a hearing on September 10, 2020, the 

court adopted its tentative ruling as the order of the court. Its order denying 

the petition was filed on October 9, 2020. 

This appeal followed.

DISCUSSION

“A traditional mandamus is sought to enforce a nondiscretionary duty 

to act on the part of a court, an administrative agency, or officers of a 

corporate or administrative agency.” (Unnamed Physician v. Board of 

Trustees (2001) 93 Cal.App.4th 607, 618.) “There are two requirements 

essential to issuance of a writ of mandate under Code of Civil Procedure 

section 1085: (1) the respondent has a clear, present, and usually ministerial 

duty to act; and (2) the petitioner has a clear, present, and beneficial right to 

performance of that duty.” (Ibid.) 
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“Where, as here, the pertinent facts are undisputed and the issue of the 

City’s mandatory duty under the ordinance presents an issue of statutory 

interpretation, ‘the question is one of law and we engage in a de novo review 

of the trial court’s determination.’ (Marshall v. Pasadena Unified School 

Dist. [(2004)] 119 Cal.App.4th 1241, 1253; see also Shamsian v. Department 

of Conservation [(2006)] 136 Cal.App.4th 621, 631.) ‘ “ ‘As the matter is a 

question of law, we are not bound by evidence on the question presented 

below or by the lower court’s interpretation. [Citations.]’ [Citation.]”

[Citations.]’ (Cummings v. Stanley [(2009)] 177 Cal.App.4th 493, 508.)” 

(Sacks v. City of Oakland (2010) 190 Cal.App.4th 1070, 1082.)

I.

PFFA contends the present case is controlled by Kugler v. Yocum (1968) 

69 Cal.2d 371 (Kugler), which held that a proposed ordinance requiring 

salaries of firefighters in the City of Alhambra to be set at no less than the 

average of the salaries received by firefighters in the neighboring City of Los 

Angeles and County of Los Angeles did not unlawfully delegate the Alhambra 

City Council’s legislative power to the parties who establish salaries for 

firefighters in the neighboring jurisdictions. (Id. at pp. 373–374.)

Kugler began its discussion with the observation that “the subject 

matter of the proposed ordinance, that is the salaries of city firemen, falls 

within the electorate’s initiative power. The city charter provides that the 

‘Council . . . shall have the power to . . . establish . . . the amount of [the fire 

division’s] . . . salaries’ (§ 81) and that the ‘electors . . . shall have the right 

to . . . adopt . . . any ordinance which the council might enact’ (§ 176). Since 

in dealing with wage rates, the city council acts in its ‘legislative’ rather than 

its ‘administrative’ capacity [citations], wage rates are a proper subject for 

adoption as an ordinance by a city council and, accordingly, pursuant to 
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section 176, for enactment by an initiative.” (Kugler, supra, 69 Cal.2d at 

p. 374.)

Kugler then explained that “the purpose of the doctrine that legislative 

power cannot be delegated is to assure that ‘truly fundamental issues [will] 

be resolved by the Legislature’ and that a ‘grant of authority [is] . . .

accompanied by safeguards adequate to prevent its abuse.’ ” (Kugler, supra, 

69 Cal.2d at p. 376.) While a legislative body must itself perform these 

functions, it “ ‘may, after declaring a policy and fixing a primary standard, 

confer upon executive or administrative officers the “power to fill up the 

details” by prescribing administrative rules and regulations to promote the 

purposes of the legislation and to carry it into effect . . . .’ ” (Ibid.) 

Applying these principles, Kugler concluded: “[T]he adoption of the 

proposed ordinance, either through promulgation by the Alhambra City 

Council or by initiative, will constitute the legislative body’s resolution of the 

‘fundamental issue.’ Once the legislative body has determined the issue of 

policy, i.e., that the Alhambra wages for firemen should be on a parity with 

Los Angeles, that body has resolved the ‘fundamental issue’; the subsequent 

filling in of the facts in application and execution of the policy does not 

constitute legislative delegation. Thus the decision on the legislative policy 

has not been delegated; the implementation of the policy by reference to Los 

Angeles salaries is not the delegation of it.” (Kugler, supra, 69 Cal.2d at 

p. 377.)

PFFA views the situation in the present case as directly analogous, 

urging that under Measure F, after firefighter salaries are determined by the 

Board, the City “retains full discretionary power in determining whether the 

data and the Board findings are sound and how, exactly, the City will execute 
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its own previously determined policy of achieving pay parity for the City’s 

firefighters.” There are at least two problems with this view.

First, PFFA’s emphasis on the discretion Measure F leaves to the city 

council ignores the fact that the ordinance dictates the minimum level at 

which firefighters’ compensation ultimately must be fixed. Measure F 

permits the city council to reject the factfinding board’s recommendations if it 

finds they are not supported by the evidence, and to make its own findings 

based on the evidence before the board. But Measure F leaves the city 

council no discretion as to the standard that must be followed in fixing 

firefighters’ compensation: Section 3 of Measure F requires compensation no 

less than that of firefighters in the comparison jurisdictions. 

Second, PFFA attempts to elide any distinction between the electorate 

and the city council by referring to the City’s “own previously determined 

policy” of setting firefighters’ compensation at no less than that of firefighters 

in the comparison cities. Treating the voters’ policy decision as in effect a 

policy decision by the city council, PFFA views Kugler as controlling because 

“the City”—whether voters or city council—established the fundamental 

standards to be applied in determining compensation. But in assuming the 

validity of the voter-adopted measure, PFFA’s argument glosses over the fact 

that Kugler involved a charter city whose charter expressly gave the voters 

the right to adopt any legislation the city council could enact, while Pacifica is 

a general law city. Contrary to PFFA’s argument, this distinction is 

significant.

“Charter cities are specifically authorized by our state Constitution to 

govern themselves, free of state legislative intrusion, as to those matters 

deemed municipal affairs.” (State Building & Construction Trades Council of 

California v. City of Vista (2012) 54 Cal.4th 547, 555.) “ ‘ “[S]alaries of local 
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employees of a charter city constitute municipal affairs and are not subject to 

general laws.” ’ ” (Id. at p. 564; Marquez v. City of Long Beach (2019) 

32 Cal.App.5th 552, 567.)

By contrast, “[t]he powers of a general law city include ‘ “only those 

powers expressly conferred upon it by the Legislature, together with such 

powers as are ‘necessarily incident to those expressly granted or essential to 

the declared object and purposes of the municipal corporation.’ The powers of 

such a city are strictly construed, so that ‘any fair, reasonable doubt 

concerning the exercise of a power is resolved against the corporation.’ 

[Citation.]” [Citations.]’ (Martin v. Superior Court (1991) 234 Cal.App.3d 

1765, 1768.)” (G.L. Mezzetta, Inc. v. City of American Canyon (2000) 78 

Cal.App.4th 1087, 1092.) 

“ ‘[T]he local electorate’s right to initiative and referendum is 

guaranteed by the California Constitution, article II, section 11, and is 

generally co-extensive with the legislative power of the local governing body. 

[Citation.] . . . “[W]e will presume, absent a clear showing of the Legislature’s 

intent to the contrary, that legislative decisions of a city council or board of 

supervisors . . . are subject to initiative and referendum.” ’ (DeVita v. County 

of Napa (1995) 9 Cal.4th 763, 775, fn. omitted (hereafter DeVita).)” “The 

presumption in favor of the right of initiative is rebuttable upon a clear 

showing that the Legislature intended ‘to delegate the exercise of . . .

authority exclusively to the governing body, thereby precluding initiative and 

referendum. [Citation.]’ (DeVita, . . . at p. 776.)” (Totten v. Board of 

Supervisors (2006) 139 Cal.App.4th 826, 833–834.)

“In ascertaining whether the Legislature intended to delegate authority 

exclusively to the local governing body, the ‘paramount factors’ are ‘(1) 

statutory language, with reference to “legislative body” or “governing body”
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deserving of a weak inference that the Legislature intended to restrict the 

initiative and referendum power, and reference to “city council” and/or “board 

of supervisors” deserving of a stronger one [citation]; (2) the question whether 

the subject at issue was a matter of “statewide concern” or a “municipal 

affair,” with the former indicating a greater probability of intent to bar 

initiative and referendum [citation].’ (DeVita, supra, 9 Cal.4th at p. 776.)” 

(Totten, supra, 139 Cal.App.4th at p. 834.) “Any other indications of 

legislative intent” are also to be considered. (DeVita, at p. 776.) These 

interpretive factors are not meant to be “a set of fixed rules for mechanically 

construing legislative intent,” and “ ‘ “ ‘[i]f doubts can [be] reasonably 

resolved in favor of the use of [the] reserve initiative power, courts will 

preserve it.’ ” ’ ” [Citations.]” (Id. at p. 777.)

As a general law city, Pacifica is subject to section 36506, which

provides, “By resolution or ordinance, the city council shall fix the 

compensation of all appointive officers and employees.” (§ 36506, italics

added.) Although not conclusive, the statute’s use of the specific term “city 

council” (rather than a more generic reference such as “legislative body” or 

“governing body”) supports a “strong inference” that the Legislature meant to 

exclude the electorate from the authority conferred by section 36506. 

(Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501–

505; Totten, supra, 139 Cal.App.4th at p. 835.)

The City maintains that the California Supreme Court, in Bagley v. 

City of Manhattan Beach (1976) 18 Cal.3d 22 (Bagley), has “already held” 

section 36506 “bars the voters of a general law city from delegating the city 

council’s exclusive authority to fix employee compensation.” Bagley held 

invalid an initiative that would have required unresolved disputes between 

the city and the recognized firefighters’ employee organization to be 
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submitted to binding arbitration. The court explained that “[w]hen the 

Legislature has made clear its intent that one public body or official is to 

exercise a specified discretionary power, the power is in the nature of a public 

trust and may not be exercised by others in the absence of statutory 

authorization. [Citations]. [¶] Although standards might be established 

governing the fixing of compensation and the city council might delegate 

functions relating to the application of those standards, the ultimate act of 

applying the standards and of fixing compensation is legislative in character, 

invoking the discretion of the council.” (Bagley, at pp. 24–25.) The court 

further noted that provisions of the MMBA, which indicated “ultimate 

determinations” regarding resolution of disputes between public employers 

and public employee organizations are to be made by the governing body 

itself,” “confirm[ed]” that “the plain language” of section 36506 should be 

applied “literally.” (Bagley, at p. 25.)

PFFA attempts to distinguish Bagley on the basis that it involved 

delegation of the city council’s authority over employee compensation to an 

arbitrator, whose binding decision would fix the salaries at issue, whereas

Measure F reflects a legislative policy adopted by the City’s electorate, with 

only implementation left to others, as in Kugler. This distinction, as we have 

said, ignores the fact that Kugler involved an exercise of initiative power that 

was expressly granted by the city’s charter while Pacifica is a general law city 

subject to section 36506. Indeed, Bagley specifically noted this point in 

distinguishing Kugler, stating Kugler “involved the sufficiency of standards 

necessary to a valid delegation of legislative power in the absence of statutes 

demonstrating an intent that the power be exercised by a specific legislative 

body. Here legislative intent limiting delegability is clear.” (Bagley, supra, 

18 Cal.3d at p. 26, italics added.) PFFA’s focus on the fact that the impasse 
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resolution measure at issue in Bagley was binding arbitration begs the 

essential question, which is whether section 36506 delegated authority to set 

municipal employees’ compensation exclusively to the city council so as to 

preclude legislation on the matter by initiative.

The strong inference of exclusive delegation arising from section 

36506’s specific reference to the “city council” is all the stronger when section 

36506 is compared to other statutes in the same division of title 4 of the 

Government Code (“Government of Cities”). Section 36516 authorizes the 

city council to enact an ordinance providing that each city council member 

shall receive a salary based on the city’s population, in amounts specified by 

the statute (§ 36516, subd. (a)(1)), but further provides that “the question of 

whether city council members shall receive a salary for services, and the 

amount of that salary, may be submitted to the electors” and determined by 

the electors’ majority vote, including being “increased beyond” or “decreased 

below” the statutory amount. (§ 36516, subd. (b).) Section 36516.1 provides 

that an elective mayor2 “may be provided with compensation in addition to 

that which he or she receives as a council member,” which “additional 

compensation may be provided by an ordinance adopted by the city council or 

by a majority vote of the electors voting on the proposition at a municipal 

election.” The fact that other statutes regarding salaries paid by general law 

cities make explicit provision for issues to be submitted to the voters, while 

section 36506 does not, reinforces the inference that the Legislature intended 

2 Pursuant to section 36801, the city council of a general law city elects 

one of its members to be mayor. The city council may, however, submit to the 

voters the question whether the electors shall thereafter elect a mayor, and 

after an elective mayor’s office has been established, the city council may 

submit to the voters the question whether to eliminate such office and 

reestablish the statutory procedure. (§§ 34900, 34902.)
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only the city council, and not the voters, to determine the salaries of city 

employees.

The inference of exclusive delegation to the city council is also 

supported by consideration of the effect on city operations if the voters could 

require a minimum level of compensation for specific city employees. In 

attempting to divine the Legislature’s intent, some courts have inferred 

exclusive delegation “in part on the grounds that the Legislature must have 

intended to prevent disruption of routine operations of government.” 

(DaVita, supra, 9 Cal.4th at p. 781.) Based on fiscal year 2019 figures, and 

without considering health care payments, Measure F would have required

the City to increase salaries for top step fire captains by approximately 18.15

percent and for top step firefighters by 21.8 percent. These increases are far 

greater than the two percent and four percent salary increases in the City’s 

last offer before the impasse in negotiations with PFFA. This difference 

could significantly impact the City’s ability to meet other financial obligations 

and satisfy other priorities.

As has been explained with reference to a county’s responsibilities in 

establishing a budget, “[t]he exercise of the board’s legislative power in 

budgetary matters ‘entails a complex balancing of public needs in many and 

varied areas with the finite financial resources available for distribution 

among those demands. . . . [I]t is, and indeed must be, the responsibility of 

the legislative body to weigh those needs and set priorities for the utilization 

of the limited revenues available.’ (County of Butte v. Superior Court (1985) 

176 Cal.App.3d 693, 699.) In so doing, the board must weigh ‘a number of 

other factors besides the level of the union members’ salaries.’ (California 

Teachers Assn. v. Ingwerson (1996) 46 Cal.App.4th 860, 876.)” (County of 

Sonoma v. Superior Court (2009) 173 Cal.App.4th 322, 343.) The process by 
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which it is determined how the resources are to be allocated cannot be 

controlled by the courts or by one particular group such as a union which has 

an interest in how much of those resources are allocated to its members. 

(County of Butte, at p. 698.) And, as the court put it in County of Butte, “[t]he 

chaos that would result if each agency of government were allowed to dictate 

to the legislative body the amount of money that should be appropriated to 

that agency, or its staffing and salary levels, is readily apparent.” (Id. at 

p. 699.) The complex balancing necessary to a city’s financial decisionmaking 

“involves interdependent political, social and economic judgments which 

cannot be left to individual officers acting in isolation; rather, it is, and 

indeed must be, the responsibility of the legislative body to weigh those needs 

and set priorities for the utilization of the limited revenues available.” (Ibid.)

Measure F addresses the compensation of employees in a single city 

department; the voters sought to ensure that if negotiations failed, 

firefighters in Pacifica would receive compensation commensurate with that 

of firefighters in neighboring cities. Laudable as their purpose may have

been, the voters were considering one part of a complicated puzzle in 

isolation. Voters do not have access to the detailed financial information 

necessary to see the puzzle as a whole and weigh competing demands on a 

finite city treasury. In specifically directing the “city council” to “fix the 

compensation of all appointive officers and employees” (§ 36506), the 

Legislature must have intended to avoid the disruption to city operations 

that could result if the electorate could require a general law city to pay its 

firefighters higher salaries than the city council deemed appropriate by 

requiring salaries no less than those in another jurisdiction. 
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We therefore agree with the trial court that Measure F is unenforceable 

as a usurpation of authority the Legislature granted exclusively to the city 

council.

3 

II.

As PFFA emphasizes, there is language in the MMBA indicating the 

legislation is not intended to preempt all local legislation: Section 3500

states: “Nothing contained herein shall be deemed to supersede the 

provisions of existing state law and the charters, ordinances, and rules of 

local public agencies that establish and regulate a merit or civil service 

system or which provide for other methods of administering employeremployee relations nor is it intended that this chapter be binding upon those 

public agencies that provide procedures for the administration of employeremployee relations in accordance with the provisions of this chapter. This 

chapter is intended, instead, to strengthen merit, civil service and other 

3 PFFA suggests that if the City “had a problem” with Measure F when 

it was adopted in 1988, it should have challenged the ordinance then. Its 

purpose in making this point is not entirely clear, as it does not go so far as to

argue the present challenge cannot be maintained. The authority PFFA cites 

is a footnote in Kugler it describes as explaining that if a city dislikes a voterapproved ordinance, the remedy lies in a frontal attack on the ordinance or a 

formal action to narrow the electorate’s initiative power. (Kugler, supra, 

89 Cal.2d at p. 375, fn. 2.) In fact, the court’s remarks addressed challenges 

to rules established by the city’s charter, not to the proposed ordinance

pertaining to initiatives and their repeal. Responding to an argument that 

the proposed ordinance was invalid because the city council would never be 

able to repeal an ordinance approved by the voters, the court stated that if 

the rule prohibiting the city council from undoing an initiative-enacted 

ordinance was deemed unwise, the remedy would be either to change that 

rule or to amend the charter to narrow the electorate’s initiative power. 

(Ibid.) In any event, the cited footnote says nothing about any limitation on 

when an initiative-enacted ordinance may be challenged as an unlawful 

delegation of legislative power.
19

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.” 

The parties agree, however, that “ ‘[t]he MMBA deals with a matter of 

statewide concern, and its standards may not be undercut by contradictory 

rules or procedures that would frustrate its purposes. [Citations.] Local 

regulation is permitted only if “consistent with the purposes of the MMBA.”

[Citation.]’ ” (County of Los Angeles v. Los Angeles County Employee 

Relations Com. (2013) 56 Cal.4th 905, 925, quoting International Federation

of Prof. & Technical Engineers v. City and County of San Francisco (2000)

79 Cal.App.4th 1300, 1306; Voters for Responsible Retirement v. Board of

Supervisors (1994) 8 Cal.4th 765, 781 [“It is indisputable that the procedures 

set forth in the MMBA are a matter of statewide concern, and are preemptive 

of contradictory local labor-management procedures”].)”

4

PFFA contends “[t]here is nothing in Measure F that would undercut or 

frustrate the purposes of the MMBA.” The City, by contrast, maintains 

Measure F “irreconcilably conflicts with the MMBA in at least two ways.” 

The first is Measure F’s requirement that the city council set firefighters’ top 

4 “The MMBA was not intended to occupy the field and preempt local 

regulation. ‘Nothing contained herein shall be deemed to supersede 

the . . . rules of local public agencies which establish and regulate a merit or 

civil service system or which provide for other methods of administering 

employer-employee relations’ (§ 3500). Looking to the future, the MMBA 

authorizes public agencies to adopt ‘reasonable rules and regulations’ on 

specified subjects after meeting and conferring with employee organizations. 

(§ 3507.) One of those subjects is ‘additional procedures for the resolution of 

disputes involving wages, hours and other terms and conditions of 

employment’ (id., subd. (e)).” (International Federation of Prof. & Technical 

Engineers v. City and County of San Francisco, supra, 79 Cal.App.4th at 

p. 1305.)
20

step salaries at an amount “not less than the average” for top step salaries in 

the specified cities, and maintain benefits costs at “not less than” the 

employer costs of such benefits in the comparison cities. This, the City 

argues, eliminates the city council’s “statutory authority to unilaterally 

impose its last, best, and final offer” if negotiations are not successful. The 

second conflict the City cites is that Measure F does not require the 

factfinding board to weigh the factors required to be considered and weighed 

by the factfinding panel under the MMBA, including the interests and 

welfare of the public and the financial ability of the public agency, instead 

requiring only that the board’s findings comport with the “not less than” 

standard.

With respect to the first point, in PFFA’s view, the last, best, and final 

offer provision of the MMBA is not the exclusive final step if an impasse 

cannot be reached, and Measure F simply provides an alternative final step 

that is consistent with the purposes of the MMBA—an “other method[] of 

administering employer-employee relations” within the meaning of section 

3500.

5 

PFFA’s argument, of course, requires adopting the view we have 

rejected—that Measure F is the result of a valid exercise of the initiative 

power and, therefore, tantamount to a decision by the city council that the 

5 As PFFA puts it, while public entities “are invariably loathe to give up 

or compromise on their presumably sacrosanct right to impose a ‘last, best, 

and final’ offer when the going gets tough and impasse is reached,” “that 

labor relations practice is not a labor relations necessity.” PFFA argues that 

Measure F “reflects the electorate’s desire that its firefighters receive pay 

that matches nearby comparator cities” and is “simply an ‘other method’ of 

administering employer-employee relations and overcoming impasse,” an 

“impasse tool consistent with the MMBA’s goal of improving employeremployee relations in California.”
21

final outcome after an impasse in negotiations will be implementation of the 

not-less-than standard. 

Had the city council itself enacted the provisions of Measure F, the 

question whether it conflicts with the MMBA would turn on whether last, 

best, and final offer provision in section 3055.7 precludes a public employer 

from adopting a different, binding final step in the impasse resolution 

process. While the MMBA does not require a public employer to impose its 

last, best, and final offer if impasse resolution procedures do not succeed, its 

authorization for the employer to do so serves to preserve the employer’s 

discretion to determine the ultimate outcome (consistent with the employer’s 

final position in negotiations). Measure F’s requirement that compensation 

be set no lower than compensation in the comparison cities clearly conflicts 

with this retained control—unless it can be said that, as in Kugler, the 

enactment of Measure F constituted the necessary exercise of discretion. As 

previously discussed, Kugler viewed the ordinance requiring Alhambra’s 

firefighters’ compensation to be set at no less than that of Los Angeles 

firefighters as reflecting the city’s exercise of discretion, through charterauthorized legislation by initiative, to adopt the comparison-based standard. 

That cannot be said here, where the standard was set for the City by an 

electorate that did not have authority to make the discretionary decision 

reserved for the city council.

Moreover, Kugler did not involve any question of conflict with the 

MMBA—which had not yet been enacted6—and its approval of the ordinance 

does not necessarily suggest Measure F presents no such conflict.

6 The MMBA was enacted in 1968, building upon the initial recognition 

of public employee bargaining in the 1961 Brown Act. 
22

When Measure F was adopted in 1988, the MMBA did not contain

mandatory impasse procedures; the legislation “contemplate[d] resolution of 

impasse by procedures that are imposed by other laws or by mutual 

agreement, not by the MMBA.” (Santa Clara County Correctional Peace 

Officers’ Assn., Inc. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 

1034; § 3505 [meet and confer 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”].) Prior to the addition of the factfinding and 

impasse procedures now found in sections 3505.4, 3505.5, and 3505.7 by 

Assembly Bill No. 646 in 2011, “if a public agency and a union reached an 

impasse in their negotiations, the Act permitted the parties to mutually agree 

to engage in mediation (§ 3505.2), but did not require the parties to engage in 

factfinding or any other impasse procedure. [Citations.] If there was no 

impasse procedure applicable by local law or by the parties’ agreement, the 

public agency could unilaterally impose its last, best, and final offer.” (San 

Diego Housing Com. v. Public Employment Relations Bd. (2016) 246 

Cal.App.4th 1, 9; Santa Clara County Correctional Peace Officers’ Assn., Inc., 

at p. 1034.) “With Assembly Bill [No.] 646’s passage, if a public agency and a 

union reach an impasse in their negotiations, the union may now require the 

public agency to participate in one type of impasse procedure—submission of 

the parties’ differences to a factfinding panel for advisory findings and 

recommendations—before the public agency may unilaterally impose its last, 

best, and final offer.” (San Diego Housing Com., at p. 9.)

In light of this history, had Measure F been enacted by the city council, 

it might have been valid when adopted in 1988. But, if so, the situation has 

now changed: Measure F precludes the city council from exercising its right 
23

under section 3505.7 to impose its last, best, and final offer in the event of an 

impasse in negotiations.

The other conflict the City cites is between Measure F’s requirement 

that the recommendations of the Board conform to the “prevailing wage 

criteria” established in section 3 of the ordinance and the MMBA’s 

requirement that the factfinding panel consider and weigh a variety of 

enumerated factors. As PFFA does not address this issue in its briefs on 

appeal, we need not resolve it, although we note it again depends on PFFA’s 

mistaken view that the voters could make this discretionary decision in place 

of the city council. 

DISPOSITION

The judgment is affirmed.

Costs to the City of Pacifica.
24

_________________________

Kline, J.*

We concur:

_________________________

Richman, Acting P.J.

_________________________

Stewart, J.

Pacifica Firefighters Association v. City of Pacifica (A161575)

*Assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
25

Trial Court: San Mateo County Superior Court

Trial Judge: Hon. George Miram

Attorneys for Appellant: Goyette & Associates

Richard P. Fisher

Attorneys for Respondent: Burke, Williams & Sorensen

Nicholas J. Muscolino

Michelle Marchetta Kenyon

Deepa Sharma