Filed 6/12/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ASSOCIATION OF ORANGE COUNTY 

DEPUTY SHERIFFS,

 Plaintiff and Appellant,

v.

COUNTY OF ORANGE et al.,

 Defendants and Respondents.

 G047167

 (Super. Ct. No. 30-2011-00442746)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

Charles Margines, Judge. Affirmed.

Law Offices of James E. Trott and James E. Trott for Plaintiff and 

Appellant.

Nicholas S. Chrisos, County Counsel, and Leon J. Page, Deputy County 

Counsel, for Defendants and Respondents.

* * *
2

INTRODUCTION

By Orange County Sheriff Sandra Hutchen‟s (the Sheriff) order, effective 

January 1, 2011, any member of the Orange County Sheriff‟s Department (the 

Department), who is under investigation for misconduct, is no longer permitted access to 

the Department‟s internal affairs investigative file before being interviewed by an internal 

affairs investigator. The Association of Orange County Deputy Sheriffs (the Association) 

filed a petition for writ of mandate and sought a preliminary injunction against Orange 

County (the County), the Department, the Sheriff, and the County‟s board of supervisors 

(collectively, defendants). The Association alleged the Sheriff‟s order violated the 

meet-and-confer requirements of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, 

§ 3500 et seq.) and constituted a breach of the Association‟s applicable memorandum of 

understanding with the County (the MOU). (All further statutory references are to the 

Government Code unless otherwise specified.) The trial court denied the Association‟s 

request for a preliminary injunction and petition for writ of mandate.

We affirm. We hold the Sheriff‟s order delaying access to the internal 

affairs investigative files until after the investigative interview was within her legal 

authority and not subject to meet-and-confer requirements. Our holding applies the 

analysis of our Supreme Court in Pasadena Police Officers Assn. v. City of Pasadena

(1990) 51 Cal.3d 564 (Pasadena). We also address a question the California Supreme 

Court expressly did not reach in Pasadena, and hold a long-standing past practice of

preinvestigative interview access to the investigative file, alone, does not constitute a 

working condition within the meaning of the MMBA.

The trial court properly applied the test for determining whether an issue 

falls within the scope of representation under the MMBA as set forth by our Supreme 

Court in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623 

(Claremont) and International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public 
3

Employment Relations Bd. (2011) 51 Cal.4th 259 (International Assn. of Fire Fighters). 

For the reasons we will explain, the Sheriff‟s order did not significantly or adversely 

affect wages, hours, or other terms and conditions of employment within the meaning of 

the MMBA. Even if it did, the Sheriff‟s order fell outside the scope of representation 

because it was a fundamental managerial or policy decision that was not outweighed by 

the benefit to employer-employee relations that would result from bargaining about the 

decision. The Sheriff‟s order did not violate any express or implied term of the MOU. 

FACTS

The Department has an internal affairs bureau of its Professional Standards 

Division.

1

 For “many years,” the Department allowed deputies, investigators, and 

sergeants, who were under investigation for misconduct and possibly subject to discipline

(principals), “complete access” to the Department‟s internal affairs investigative files

before submitting to an investigative interview by internal affairs investigators.

2

 

The investigative files include memoranda written by managers and 

supervisors; witness statements gathered by an internal affairs investigator; transcripts of 

interviews with other employees; and, when available, physical evidence including video 

footage. Before the Sheriff‟s order became effective, a principal was permitted to spend 

as much time “as needed” to review the investigative file, and might spend several hours,

if not days, reviewing the file. A principal was also allowed to review the contents of the 

 

1

 The Professional Standards Division conducts approximately 400 internal affairs 

investigations of alleged misconduct by the Department‟s members each year, 

approximately half of which result in some kind of discipline, ranging from a verbal 

reprimand to discharge. 

2

 Defendants submitted evidence that 135 investigators who worked in the district 

attorney‟s office had not been provided preinvestigative interview access to the 

investigative file even though they are part of the same bargaining unit as the deputies, 

investigators, and sergeants, covered by the MOU, and represented by the Association. 
4

investigative file with his or her attorney or union representative, and to make personal 

notes of the contents. 

In her declaration, the Department‟s Captain Linda Solorza stated the 

Department‟s practice of providing preinvestigative interview access to the investigative 

file interfered with the internal affairs bureau‟s ability “to conduct prompt, thorough, and 

fair investigations into peace officer misconduct.” Evidence showed the preinvestigative 

interview access practice did not promote truthseeking and was inconsistent with 

techniques employed by the Department in other kinds of investigatory interviews.

3

 

According to Solorza, providing such access threatened to color the principal‟s 

recollection of events or “lead that person to conform his or her version of an event to 

that given by witnesses already questioned.” 

In his declaration, the Department‟s Lieutenant Jeffrey Hallock, who had 

served as a sergeant in the Professional Standards Division, stated the Department‟s 

practice created the temptation for a principal or witness “to conform his or her 

statements to the statements of others to either protect the witness‟s colleagues, or to 

protect himself or herself.” Solorza added in her declaration: “[I]f the principal under 

investigation does not know the sum total of what the Internal Affairs investigator knows, 

the principal will have more reason to be truthful and forthright when responding to the 

investigator‟s questions. This would also be the case in interviews with witnesses. 

Witnesses are more often truthful and forthright when they know that the principal will 

not have access to the witness‟s interview prior to the principal‟s own interview. When 

the principal does not know what the interviewing Investigator knows, the Investigator is 

also better positioned to assess the principal‟s credibility.” 

 

3

 The declaration of the Department‟s Commander Steve Kea stated in part: “It 

has been my experience that most law enforcement agencies in the State of California do 

not provide their employees with an opportunity to review the investigative file prior to

conducting the employee‟s investigative interview . . . .” 
5

Solorza also stated the preinvestigative interview access practice had a 

“chilling” effect on witnesses. For example, in one sexual harassment case, the victims 

and witnesses of the alleged misconduct expressed concern about the disclosure of their 

statements to the principal (while the investigation was still pending) because they feared 

retaliation before the Department could take appropriate remedial action to address any 

misconduct. 

Solorza further stated in her declaration the Department‟s practice 

particularly hindered investigations that involved more than one principal. For example, 

if one principal abruptly resigned after reviewing his or her investigative file but before 

his or her investigative interview, the Professional Standards Division would be unable to 

compel that principal to provide a statement regarding the conduct of the other principals

under investigation. The completion of such investigations was delayed by principals 

seeking to review other principals‟ investigative interviews before submitting to their 

own interviews. 

The Sheriff described the Department at the time of her appointment in 

2008 as “reeling from a lack of accountability, transparency, and leadership.” Her 

predecessor was under investigation for witness tampering and related corruption 

charges. The Department was also dealing with the murder of a jail inmate and 

allegations that “jail deputies relied on „shot callers‟ to control other inmates in the 

county jails.” The Sheriff pledged to the public that she “would restore accountability, 

openness, trust, and transparency to the operations of the Sheriff‟s Department.”

In December 2010, the Sheriff decided to reform the manner in which 

internal affairs investigations of principals were conducted. She concluded a policy 

change was “absolutely necessary to ensure the integrity and reliability of future internal 

affairs investigations” and to bring the Department in line with what is considered to be 

the “best practice” in conducting internal affairs investigations. 
6

On December 28, 2010, the Sheriff ordered, by executive command, that 

effective January 1, 2011, the Professional Standards Division would stop providing all 

principals with preinvestigative interview access to the investigative files. The change in 

practice was not made in response to any specific instance of misconduct, but was made 

“in order to improve the reliability and integrity of the Department‟s internal affairs 

investigations.” For cases investigating misconduct, which were initiated before 

January 1, 2011, the Department continued to provide preinvestigative interview access 

to the investigative file. 

In her declaration, Solorza stated: “[A]s required by the Public Safety 

Officer‟s Procedural Bill of Rights Act and also by the Skelly decision (Skelly v. State 

Personnel Board, 15 Cal.3d 194 (1975)) when discipline is proposed, a peace officer is 

provided with a copy of all the materials (including all investigative files) on which the 

decision to impose discipline is being based. However, as a result of the Sheriff‟s policy 

decision, the investigative materials are now provided to the peace officer only when 

discipline is proposed, instead of prior to the employee‟s investigative interview.” 

The change in practice did not alter or otherwise affect the Department‟s 

standards of conduct or ethical canons; the Department‟s employees were already 

prohibited from making a false statement to superiors and other employees. The MOU 

did not address the issue, much less state, that the Department would provide any 

principal with preinvestigative interview access to the investigative file. 

The Association immediately objected to the Sheriff‟s order and asserted

that withdrawal of preinvestigative interview access to the investigative file was a 

mandatory item of bargaining, subject to the meet-and-confer process of the MMBA. 

The Sheriff responded that the change in the Department‟s practice, implemented by her 

order, “is not a subject that requires negotiation.” 
7

PROCEDURAL BACKGROUND

I.

THE ASSOCIATION FILES A PETITION FOR WRIT OF MANDATE

AGAINST DEFENDANTS.

In January 2011, the Association filed a petition for writ of mandate under 

Code of Civil Procedure section 1085 (the petition) against defendants to enforce its 

collective bargaining rights under the MMBA and the MOU. The petition alleged 

defendants have a “ministerial duty” to follow the law with regard to public 

employer-employee relations and failed to do so because they unilaterally implemented a 

change in working conditions by “no longer following the long standing practice of 

providing investigative materials for review prior to Internal Affairs interrogation, 

without meeting and conferring as required by law.” The petition further alleged 

defendants‟ conduct also violated the so-called “zipper clause” contained in article XXIII 

of the MOU, which required the parties‟ mutual agreement to negotiate “any subject 

matter covered herein or with respect to any other matter with[in] the scope of 

representation” during the MOU‟s term. 

The petition sought issuance of a peremptory writ of mandate commanding 

defendants “not to change the Internal Affairs investigation process as it pertains to the 

provision of all investigative materials to members of the bargaining unit represented by

[the Association] prior to such members being interrogated in connection with a 

Personnel Investigation, or other investigation of alleged misconduct, by employees of 

[the Department], absent agreement to do so reached as part of the collective bargaining

process for a successor agreement to the current Memorandum of Understanding which 

expires on October 4, 2012, and to take no actions to unilaterally implement any change 

in that practice until such time.” 
8

II.

THE TRIAL COURT DENIES THE ASSOCIATION‟S REQUEST FOR 

A PRELIMINARY INJUNCTION.

In January 2011, the Association filed an ex parte application requesting an 

order to show cause regarding the issuance of a preliminary and permanent injunction,

and a temporary restraining order. The Association sought to enjoin defendants from 

withdrawing the Department‟s practice of providing preinvestigative interview access to 

the investigative file until agreement to do so is reached as part of the collective 

bargaining process. The Association asserted it “will be irreparably damaged if the 

obligation to refrain from implementing unilateral changes in working conditions is not 

enforced by this Court in that the [Association]‟s collective bargaining rights under the 

[MMBA] [citation] will have been negated and the terms of the current Memorandum of 

Understanding will be rendered null and void.” As in the petition, the Association further 

asserted the zipper clause of the MOU contained in article XXIII provides that during the 

term of the MOU, the parties may meet and confer on issues within the scope of 

representation only if they mutually agree to do so. 

The trial court denied the Association‟s request for a preliminary injunction 

on the grounds the Association failed to demonstrate a likelihood of prevailing on the 

merits of the petition and also failed to show irreparable harm. 

III.

THE TRIAL COURT DENIES THE PETITION; JUDGMENT IS 

ENTERED; THE ASSOCIATION APPEALS.

The trial court denied the petition for the reasons set forth in its minute 

order, described as follows. The court concluded that the Sheriff‟s order, implementing 

the withdrawal of preinvestigative interview access to the investigative file, did not 
9

violate the MMBA because it did not “implicate or sufficiently impact wages, hours or 

working conditions”; it constituted a “fundamental policy decision supported by 

sufficient rationale”; and that “[o]n balance, any negative impact on employment 

conditions is substantially outweighed by the Sheriff Department‟s need for 

unencumbered decision-making in how to investigate deputy misconduct.” The court 

further concluded the Sheriff‟s order did not breach any express term of the MOU. The 

court also rejected the Association‟s argument that preinvestigative interview access to 

the investigative file was an implied term of the MOU, finding “no evidence was 

presented from which it can be concluded that „pre-interview access‟ or any past practice 

was intended to be a part of the MOU.” 

Judgment was entered denying the petition. The Association appealed. 

DISCUSSION

I.

THE TRIAL COURT PROPERLY DENIED THE PETITION.

A.

General Legal Principles Governing Writs of Mandate and 

the Applicable Standard of Review

A writ of mandate will issue to “compel the performance of an act which 

the law specially enjoins, as a duty resulting from an office, trust, or station” (Code Civ. 

Proc., § 1085, subd. (a)), “where there is not a plain, speedy, and adequate remedy, in the 

ordinary course of law” (Code Civ. Proc., § 1086). The writ will issue against a county,

city, or other public body, or against a public officer. (Housing Authority v. City of L. A.

(1952) 38 Cal.2d 853, 869-871; County of Los Angeles v. City of Los Angeles (2013) 214 

Cal.App.4th 643, 653.)
10

“In reviewing the trial court‟s denial of the writ, we must determine 

whether its findings and judgment are supported by substantial evidence. However, 

where the facts are undisputed and a question of law is involved, we may exercise our 

independent judgment.” (Riverside Sheriff’s Assn. v. County of Riverside (2003) 106 

Cal.App.4th 1285, 1289.)

B.

The Sheriff’s Order Did Not Violate the MMBA.

1.

Overview of the Meet-and-confer Requirements of the MMBA

“The MMBA applies to local government employees in California. 

[Citation.] „The MMBA has two stated purposes: (1) to promote full communication 

between public employers and employees, and (2) to improve personnel management and 

employer-employee relations. (§ 3500.) To effect these goals the act gives local 

government employees the right to organize collectively and to be represented by 

employee organizations (§ 3502), and obligates employers to bargain with employee 

representatives about matters that fall within the “scope of representation” (§§ 3504.5, 

3505).‟” (Claremont, supra, 39 Cal.4th at p. 630, fn. omitted.)

Under the MMBA, a public employer and a recognized employee 

organization have a mutual obligation to meet in person and confer promptly upon either 

party‟s request in an endeavor to reach agreement on matters within the scope of 

representation before the public agency‟s adoption of its final budget for the coming year.

(International Assn. of Fire Fighters, supra, 51 Cal.4th at p. 271; see § 3505.) The 

obligation to bargain in good faith requires that the parties “must genuinely seek to reach 

agreement.” (International Assn. of Fire Fighters, supra, at p. 271.) The MMBA does 

not require that the parties actually reach an agreement. (International Assn. of Fire 

Fighters, supra, at p. 271.) “[A] public employer has the ultimate power to reject 

employee proposals on any particular issue.” (Ibid.; see Claremont, supra, 39 Cal.4th at 
11

p. 630 [“Even if the parties meet and confer, they are not required to reach an agreement 

because the employer has „the ultimate power to refuse to agree on any particular 

issue‟”].)

Section 3504 defines the term “scope of representation” to include “all 

matters relating to employment conditions and employer-employee relations, including, 

but not limited to, wages, hours, and other terms and conditions of employment, except, 

however, that the scope of representation shall not include consideration of the merits, 

necessity, or organization of any service or activity provided by law or executive order.” 

The California Supreme Court has stated: “The definition of „scope of representation‟ 

and its exceptions are „arguably vague‟ and „overlapping.‟ [Citations.] „“[W]ages, hours 

and working conditions,” which, broadly read could encompass practically any 

conceivable bargaining proposal; and “merits, necessity or organization of any service” 

which, expansively interpreted, could swallow the whole provision for collective 

negotiation and relegate determination of all labor issues to the city‟s discretion.‟ 

[Citation.]” (Claremont, supra, 39 Cal.4th at p. 631.)

4

In Claremont, supra, 39 Cal.4th at page 638, the California Supreme Court 

clarified a three-part test (the Claremont test) to determine whether an employer‟s action 

is subject to the meet-and-confer requirements of section 3505: “First, we ask whether 

 

4

 “To resolve ambiguities and uncertainties inherent in the MMBA‟s definition of 

the scope of representation, [the California Supreme C]ourt has looked to federal 

precedents. [The Supreme C]ourt has noted that the first key phrase in the MMBA‟s 

definition of the scope of representation—„wages, hours, and other terms and conditions 

of employment‟ (§ 3504)—was copied verbatim from the federal NLRA [(National 

Labor Relations Act)] (see 29 U.S.C. § 158(d)), while the other key phrase—„merits, 

necessity, or organization of any service‟ (§ 3504)—was intended to incorporate the 

„“general managerial policy”‟ exception developed by federal courts to determine the 

scope of representation under the NLRA. [Citations.]” (International Assn. of Fire 

Fighters, supra, 51 Cal.4th at p. 272, citing Building Material & Construction Teamsters’ 

Union v. Farrell (1986) 41 Cal.3d 651, 658, 663 and Fire Fighters Union v. City of 

Vallejo (1974) 12 Cal.3d 608, 616-617.)
12

the management action has „a significant and adverse effect on the wages, hours, or 

working conditions of the bargaining-unit employees.‟ [Citation.] If not, there is no duty 

to meet and confer. [Citations.] Second, we ask whether the significant and adverse 

effect arises from the implementation of a fundamental managerial or policy decision. If 

not, then . . . the meet-and-confer requirement applies. [Citation.] Third, if both factors 

are present—if an action taken to implement a fundamental managerial or policy decision 

has a significant and adverse effect on the wages, hours, or working conditions of the 

employees—we apply a balancing test. The action „is within the scope of representation 

only if the employer‟s need for unencumbered decisionmaking in managing its operations 

is outweighed by the benefit to employer-employee relations of bargaining about the 

action in question.‟ [Citation.] In balancing the interests to determine whether parties 

must meet and confer over a certain matter [citation], a court may also consider whether 

the „transactional cost of the bargaining process outweighs its value.‟”

2.

Application of the Claremont Test Shows the Sheriff’s Order

Did Not Violate the MMBA.

After applying the Claremont test to the Sheriff‟s order, the trial court 

concluded that the Sheriff‟s executive command ordering the withdrawal of 

preinvestigative interview access to the investigative file was not subject to the 

meet-and-confer requirements of the MMBA. For the reasons we will explain, the trial 

court reached the correct conclusion.

a.

The Sheriff’s order did not significantly and adversely affect wages, 

hours, or working conditions within the meaning of the MMBA.

As to the first part of the Claremont test, there is no evidence the Sheriff‟s 

order significantly and adversely affected wages or hours; the Association does not 
13

contend otherwise. Instead, the Association argues the Sheriff‟s order substantially and 

adversely affects working conditions, thereby subjecting it to the MMBA‟s 

meet-and-confer requirements. 

The MMBA does not define the phrase “other terms and conditions of 

employment.” (§ 3504.) Courts have construed the phrase “wages, hours, and other 

terms and conditions of employment” to include the transfer of bargaining-unit work to 

nonunit employees, mandatory drug testing of employees, work shift changes, and the 

adoption of a disciplinary rule prohibiting use of public facilities for personal use. 

(Claremont, supra, 39 Cal.4th at p. 631.) 

In Long Beach Police Officer Assn. v. City of Long Beach (1984) 156 

Cal.App.3d 996, 998, the appellate court affirmed the judgment ordering the issuance of a 

peremptory writ of mandate prohibiting the Long Beach Police Department, among 

others, from denying its officers “a „past practice‟ of consultation with a [union] 

representative or an attorney prior to making oral and written reports concerning 

incidents in which an officer was involved in a shooting.” The appellate court held that 

because the parties‟ memorandum of understanding “specifically prohibit[ed] the 

reduction in „consistently applied past practices‟ unless the parties mutually agreed to 

such reduction in writing „prior to implemention[,]‟” that practice “cannot be unilaterally 

terminated . . . and does not violate public policy.” (Ibid.) Explaining that its holding did 

not violate public policy, the appellate court stated, inter alia: “When an officer uses his 

weapon, the circumstances are normally serious and life-threatening. The focus is clearly 

and directly upon the officer and the other participants of the incident. While the public 

concern for a timely revelation of facts in these circumstances is extremely important, it 

does not outweigh the contractual right of the officer to consult with an advisor prior to 

the preparation of a report, especially when the report could be incriminating and the 

decision to seek punitive or criminal action could in part be based upon such report. The 
14

public concern cannot also outweigh the potential violations of the officer‟s rights under 

the Fifth and Sixth Amendments.” (Id. at p. 1010, italics added.)

In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles

(2008) 166 Cal.App.4th 1625, 1628 (ALADS), the appellate court considered whether the 

Los Angeles County Sheriff‟s Department violated the MMBA by unilaterally 

implementing the following “anti-huddling policy revision”: “„[P]rior to being 

interviewed by assigned Departmental investigators. . . . Members [of the Department] 

who were either involved in or witnessed [a deputy-involved shooting] may consult 

individually with legal counsel or labor representatives . . . [but] . . . shall not consult 

with legal counsel and or labor representatives collectively or in groups (e.g., two or 

more members consulting at the same time with the same legal counsel/labor 

representatives).‟” 

In ALADS, the plaintiff union alleged, “the right of the Department‟s 

deputies to huddle with counsel is a „working condition‟ because it has been a „consistent 

and established practice . . . for over 25 years.‟” (ALADS, supra, 166 Cal.App.4th at 

p. 1643.) The appellate court, relying on Long Beach Police Officer Assn. v. City of Long 

Beach, supra, 156 Cal.App.3d 996, rejected the union‟s argument, stating: “The problem 

we see with [the union]‟s argument is that it has not shown us any provision in the 

parties‟ MOU which defines „working conditions‟ to include „consistent and established 

practices.‟ For this reason, alone, [the union] has not shown that it is likely to prevail on 

its meet-and-confer claim under the MMBA.” (ALADS, supra, at p. 1643.) The appellate 

court also noted the lack of any statutory support for the union‟s position, stating: 

“[S]ection 3303, subdivision (i), does not support the proposition that a right to huddle 

with counsel is a necessary component of a peace officer‟s working conditions. 

Section 3303, subdivision (i), provides that a „public safety officer‟ has a right to be 

represented by legal counsel of „his or her choice.‟ The right protected under 
15

section 3303, subdivision (i), is an individual officer‟s right to counsel, and does not 

expressly protect a right to huddle in a group with counsel.” (Ibid.)

Here, as in ALADS, the MOU neither prohibits a reduction of existing 

“„consistently applied past practices‟” nor otherwise establishes that past practices

constitute working conditions, triggering the meet-and-confer requirements of the 

MMBA. (Long Beach Police Officer Assn. v. City of Long Beach, supra, 156 Cal.App.3d 

at p. 998). Furthermore, the provision of preinvestigative interview access to the 

investigative file is not supported by statute or public policy.

In Pasadena, supra, 51 Cal.3d at page 569, the California Supreme Court 

held that section 3303 (contained in the Public Safety Officers Procedural Bill of Rights 

Act, § 3300 et seq.) does not manifest “a legislative intent to grant preinterrogation 

discovery rights to a peace officer who is the subject of an internal affairs investigation.” 

The California Supreme Court explained: “To keep the peace and enforce the law, a 

police department needs the confidence and cooperation of the community it serves. 

Even if not criminal in nature, acts of a police officer that tend to impair the public‟s trust 

in its police department can be harmful to the department‟s efficiency and morale. Thus, 

when allegations of officer misconduct are raised, it is essential that the department 

conduct a prompt, thorough, and fair investigation. Nothing can more swiftly destroy the 

community‟s confidence in its police force than its perception that concerns raised about 

an officer‟s honesty or integrity will go unheeded or will lead only to a superficial 

investigation.” (Pasadena, supra, at p. 568.)

In Pasadena, supra, 51 Cal.3d at page 578, the California Supreme Court 

explained its reasoning: “Unlike other protections set forth in the [Public Safety Officers 

Procedural Bill of Rights ]Act, a right to preinterrogation discovery is not essential to the 

fundamental fairness of an internal affairs investigation. Indeed, the right to discovery 

before interrogation and before charges have been filed, as [the union] seeks here, is 

without precedent.” (Some italics added.) The court stated, “granting discovery before 
16

interrogation could frustrate the effectiveness of any investigation, whether criminal or 

administrative. Underlying every administrative inquiry into suspected officer 

misconduct is the obligation of the law enforcement agency to assure public confidence 

in the integrity of its officers. The purpose of the inquiry is to determine whether there is 

any truth to the allegations of misconduct made against an officer and, if so, whether to 

commence disciplinary proceedings. . . . [¶] Disclosure before interrogation might color 

the recollection of the person to be questioned or lead that person to conform his or her 

version of an event to that given by witnesses already questioned. . . . [¶] Furthermore, to 

require disclosure of crucial information about an ongoing investigation to its subject 

before interrogation would be contrary to sound investigative practices. During an

interrogation, investigators might want to use some of the information they have amassed 

to aid in eliciting truthful statements from the person they are questioning. Mandatory 

preinterrogation discovery would deprive investigators of this potentially effective tool 

and impair the reliability of the investigation. This is true in any interrogation, whether 

its purpose is to ferret out criminal culpability or, as in this case, to determine if a peace 

officer used a mailing list in contravention of a direct order by his superiors.” (Id. at 

pp. 578-579.)

5

Notwithstanding the above cited authorities, the Association argues in its 

opening brief: “The meet and confer requirement extends to changes in existing and 

acknowledged practices, even if, as in this instance, they are not formalized in a written 

agreement or rule.” The Association‟s assertion is correct only to the extent that the past 

practice in question significantly and adversely affects wages, hours, or other terms and 

 

5

 The Supreme Court acknowledged that the union had “alleged that the 

Department had a practice of preinterrogation disclosure.” (Pasadena, supra, 51 Cal.3d 

at p. 580.) The Supreme Court stated that because the trial court had not yet resolved that 

issue, “[w]e need not determine whether the Department did have such a practice” and 

whether an officer was entitled to preinterrogation access to certain notes taken during a 

different interview. (Ibid.)
17

conditions of employment, as confirmed by the cases cited by the Association in support 

of its argument. (See San Francisco Fire Fighters Local 798 v. Board of Supervisors

(1992) 3 Cal.App.4th 1482, 1491 [“The fire commission‟s decision changed the accepted 

practice under which employees expected to be promoted. Consequently, there is no 

question the decision affected the „terms and conditions of employment‟”]; International 

Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 971-973 

[analyzing amendment relative to probationary employees‟ eligibility for merit pay 

increases]; Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 

256, 265 [county‟s refusal to continue to permit employees to use their motorcycles at 

work is a meet-and-confer item]; Vernon Fire Fighters v. City of Vernon (1980) 107 

Cal.App.3d 802, 817 [imposition of disciplinary rule prohibiting long-standing practice 

that allowed firefighters to use city facilities to wash their private automobiles during 

off-duty time].)

6

The Association does not cite any legal authority, and we have found 

none, supporting the argument that any long-standing past practice necessarily constitutes 

a working condition within the meaning of the MMBA. 

Here, the Sheriff‟s order did not infringe on any statutory rights or affect 

any issue addressed in the MOU. In light of the foregoing evidence and relevant legal 

authorities, the Sheriff‟s order implementing the withdrawal of preinvestigative interview 

access to the investigative file did not significantly and adversely affect wages, hours, or 

working conditions within the meaning of the MMBA. Therefore, defendants did not 

 

6

 The Association also cites several federal circuit court cases and National Labor 

Relations Board cases in support of its argument, all of which are readily distinguishable 

from the instant case because the past practices at issue in those cases clearly impacted 

wages, hours, or other terms and conditions of employment. (See, e.g., Rahco, Inc.

(1982) 265 NLRB 235, 256-257 [imposition of new written warnings and discipline 

system constituted a significant change in the employees‟ working conditions as it 

materially and substantially affected job security and thus was a mandatory subject of 

bargaining].) 
18

violate the MMBA by failing to meet and confer on that issue before implementing the

change in practice.

b.

Even if the Sheriff’s order significantly and adversely affected

working conditions within the meaning of the MMBA, it constituted

the implementation of a fundamental managerial or policy decision.

In International Assn. of Fire Fighters, supra, 51 Cal.4th at page 273, the 

California Supreme Court reiterated the second and third parts of the Claremont test in its 

analysis of “management decisions that directly affect employment, such as eliminating 

jobs, but nonetheless may not be mandatory subjects of bargaining because they involve 

„a change in the scope and direction of the enterprise‟ or, in other words, the employer‟s 

„retained freedom to manage its affairs unrelated to employment.‟” The Supreme Court 

held: “Bargaining is not required for decisions in this category if they do not raise an 

issue that is „amendable to resolution through the bargaining process‟ [citation], although 

the employer is normally required to bargain about the results or effects of such decisions 

[citation]. To determine whether a particular decision in this third category is within the 

scope of representation, the [United States Supreme C]ourt prescribed a balancing test, 

under which „in view of an employer‟s need for unencumbered decisionmaking, 

bargaining over management decisions that have a substantial impact on the continued 

availability of employment should be required only if the benefit, for labor-management 

relations and the collective-bargaining process, outweighs the burden placed on the 

conduct of the business.‟ [Citation.]” (Ibid.)

In ALADS, supra, 166 Cal.App.4th at pages 1643-1644, the appellate court 

held that even assuming the anti-huddling policy revision at issue significantly and 

adversely affected working conditions within the meaning of the MMBA, that policy 

revision arose from the implementation of a fundamental managerial or policy decision, 

and thus was outside the meet-and-confer requirements of the MMBA. The appellate 
19

court explained: “Section 3504 of the MMBA incorporates the principle developed in 

federal law that employers have a right to make unconstrained decisions when 

fundamental management or policy choices are involved.” (ALADS, supra, at p. 1644.)

Here, the withdrawal of preinvestigative interview access to the 

investigative file was ordered “to ensure the integrity and reliability of future internal 

affairs investigations” and to bring the Department in line with what is considered to be 

the “best practice” in conducting internal affairs investigations. The change in practice 

implemented by the Sheriff‟s order, therefore, squarely falls into the third part of 

management decisions described in International Assn. of Fire Fighters, supra, 51 

Cal.4th at page 273, as it constitutes a fundamental managerial decision, falling within 

the Department‟s “„freedom to manage its affairs unrelated to employment‟” (ibid). The 

Association does not identify any results from, or effects of, the Sheriff‟s order, which

are subject to bargaining. 

c.

The Sheriff’s need to withdraw preinvestigative interview access to the 

investigative file is not outweighed by the benefit to employer-employee 

relations of bargaining about that change in practice.

Even were we to assume the Sheriff‟s order constituted a fundamental 

managerial or policy decision that significantly and adversely affected working 

conditions, the Sheriff‟s need for unencumbered decisionmaking to ensure the integrity of 

the Department‟s internal affairs investigations of alleged misconduct is not outweighed 

“„by the benefit to employer-employee relations of bargaining about the action in 

question‟” (Claremont, supra, 39 Cal.4th at p. 638) for the reasons set forth in Pasadena,

supra, 51 Cal.3d 564, as discussed ante.

In ALADS, supra, 166 Cal.App.4th at page 1644, the appellate court

similarly concluded: “Is the Department‟s need for unencumbered decisionmaking in 

managing its operations outweighed by the benefit to employer-employee relations of 
20

bargaining about the action in question? . . . [W]e answer this question „no.‟ The 

deputies‟ working condition claim is tenuous, and the Department‟s interest in public 

accountability is significant on its face.”

In light of the foregoing, the Sheriff‟s order withdrawing preinvestigative 

interview access to the investigative file was not subject to the meet-and-confer 

requirements of the MMBA.

C.

The Sheriff’s Order Did Not Constitute a Breach of the MOU.

The petition also asserted the Sheriff‟s order violated certain terms of the 

MOU. For reasons we will explain, the trial court did not err by rejecting this argument.

1.

Applicable Legal Principles and Standard of Review

“The MOU, entered into between the county and the [union] on behalf of 

employees . . . , is „a mutually agreed covenant, a labor management contract. . . . [¶] . . . 

[A]ll modern California decisions treat labor-management agreements . . . as enforceable 

contracts [citation] which should be interpreted to execute the mutual intent and purpose 

of the parties.‟ [Citation.] „“Thus, „“[w]e are free to make our own independent 

interpretation of the terms of the contract and its application to the instant dispute.”‟”‟” 

(Riverside Sheriffs’ Assn. v. County of Riverside (2009) 173 Cal.App.4th 1410, 1424.) 

“„[B]ecause we must interpret the MOU to “„execute the mutual intent and purpose of the 

parties[,]‟” we independently review the appellate record. [Citation.]‟” (Ibid.) We 

independently interpret a contract, such as the MOU, where the interpretation does not 

turn on the credibility of extrinsic evidence. (City of El Cajon v. El Cajon Police 

Officers’ Assn. (1996) 49 Cal.App.4th 64, 70-71.) 
21

2.

The Trial Court’s Findings

In its minute order denying the petition, the trial court set forth its factual 

findings and its detailed, well-reasoned analysis rejecting the Association‟s argument that 

the Sheriff‟s order violated the MOU. Particularly pertinent excerpts from the minute 

order are:

“[The Association] contends that the past practice of „pre-interview access‟ 

was part of the MOU, and that unilaterally withdrawing the past practice is a breach of 

the agreement. The MOU says nothing about „pre-interview access‟ and nothing about 

incorporating past practices, except to the extent it preserves [defendants‟] pre-existing 

rights and powers. . . . [The Association] contends that the silence is of no consequence 

since „pre-interview access‟ is an „implied‟ term of the MOU.

“MOUs are contracts, and ordinarily the existence of implied terms turns on 

the scope of any integration clause. Here, the MOU does not contain an integration

clause, but where parties execute a written agreement, that agreement is at least partially 

integrated to the extent new or different terms are sought to be incorporated therein. 

[Citation.] There is nothing in the MOU to suggest any intention to incorporate implied 

terms or past practices. [Citations.] Moreover, the MOU does make some tangential 

reference to investigative rights: 

“—Article III, Sec. 3 (PO-24), giving an employee the right to review 

„adverse statements‟ and „reports concerning criminal investigations‟ before they are 

made part of the employee‟s personnel file.

“—Article IX, Sec. 2 (PO-57), enumerating the information which must be 

provided to an employee prior to a disciplinary hearing (but nothing regarding an 

investigation). 

“The inclusion of these particular rights suggests that the exclusion of 

„pre-interview access‟ was intentional. [Citation.] If the [Association] intended to 
22

perpetuate the „pre-interview access‟ policy as a condition precedent to any investigative 

interview, either Article III or IX would have been a logical place to insert a reference to 

such policy. In fact, [the Association] admits that this very topic was discussed but was 

unresolved during negotiations for the 2003-2006 MOU . . . ; therefore its absence from 

any MOU (much less the operative 2009-2012 MOU) is telling, particularly given the 

California Supreme Court‟s holding in Pasadena Police Officers Assn vs. City of 

Pasadena (1990) . . . 51 Cal.3d 564 that peace officers have no statutory right to 

„pre-interview access‟ or other advance discovery. Under the circumstances, 

„pre-interview access‟ would not naturally have been excluded from the MOU [citation], 

and is not reasonably susceptible to any of the written terms. Even though it was not 

completely at variance with an express term [citation], „pre-interview access‟ appears to 

have been a term which the parties specifically agreed to disagree on. Thus, absent a 

meeting of the minds it cannot now become an enforceable term in the agreement.” 

In the minute order, the trial court rejected the Association‟s contention that 

“past practices are, by law, incorporated as implied terms of an MOU,” as being without 

support of legal authority. The court also rejected the Association‟s contention that “the 

„zipper clause‟ in the MOU (Article XXIII) obligates [defendants] to meet and confer 

over the „pre-interview access‟ policy change.”7 

The trial court stated, “[a] zipper clause is frequently found in labor 

agreements and is intended to „close out bargaining during the contract term and to make 

the written contract the exclusive statement of the parties‟ rights and obligations,‟” but 

 

7

 The so-called zipper clause in article XXIII of the MOU is entitled 

“MODIFICATION AND WAIVER” (underscoring omitted) and states in its entirety: 

“Except as specifically provided herein, it is agreed and understood that the parties hereto 

reserve the right, only upon mutual agreement, to negotiate with respect to any subject or 

matter covered herein or with respect to any other matter within the scope of 

representation during the term of the Memorandum of Understanding.” 
23

“[n]ot all zipper clauses are created equal.”8 The court stated that in the instant case, the 

zipper clause contained in the MOU “is poorly constructed. It preserves a „right‟ to 

negotiate matters within the MOU, whereas zipper clauses are supposed to „zip up‟ and 

bring to an end negotiations. It conditions that „right‟ on the mutual agreement of the 

parties, which is essentially saying that if both sides agree, terms of the agreement can be 

modified. Every contractual relationship can be adjusted if the contracting parties so 

decide. The zipper clause is silent as to past practices and does not define what is within 

the „scope‟ of representation. It would have been easy to make clear that the scope is 

co-extensive with the MMBA (i.e. wages, hours and working conditions), but does not 

incorporate past practices as implied terms.” 

Finally, the court stated it found “no evidence was presented from which it 

can be concluded that „pre-interview access‟ or any past practice was intended to be a 

part of the MOU.” 

3.

The Trial Court Did Not Err in Finding No Breach of the MOU.

The Association does not challenge any of the trial court‟s factual findings 

or legal reasoning supporting its conclusion the MOU had not been breached. The 

Association does not dispute that the MOU is silent regarding the Department‟s former 

preinvestigative interview access practice.

In its opening brief, the Association argues that because providing 

preinvestigative interview access to the investigative file had been a “long standing past 

practice” of the Department, that practice “r[ose] to the level of an implied term of the 

 

8

 “„[T]he general purpose of a zipper clause is to “zip up” the collective 

bargaining agreement. It insulates both parties to the agreement from a demand by the 

other party to reopen negotiations with the intent of modifying or adding to the current 

contract terms or otherwise changing the status quo.‟” (City of Fresno v. People ex rel. 

Fresno Firefighters (1999) 71 Cal.App.4th 82, 98.) 
24

MOU,” as a matter of law, and by implementing the change in practice, defendants 

breached the MOU‟s zipper clause. The Association‟s argument mirrors its argument,

addressed ante, that any long-standing past practice constitutes a working condition 

within the meaning of the MMBA.

The Association has failed to cite any legal authority, and we have found 

none, showing that any “long standing past practice,” regardless of its nature, becomes an 

implied term of the MOU, as a matter of law. The Association‟s position finds no 

support in statutes, case law, public policy, or the language of the MOU itself.

II.

THE TRIAL COURT DID NOT ERR BY DENYING THE ASSOCIATION‟S 

REQUEST FOR A PRELIMINARY INJUNCTION.

“„Generally, the ruling on an application for a preliminary injunction rests 

in the sound discretion of the trial court. The exercise of that discretion will not be 

disturbed on appeal absent a showing that it has been abused. [Citations.]‟ [Citation.] 

„A trial court may not grant a preliminary injunction, regardless of the balance of interim 

harm, unless there is some possibility that the plaintiff would ultimately prevail on the 

merits of the claim. [Citation.]‟ [Citation.]” (Hunt v. Superior Court (1999) 21 Cal.4th 

984, 999; see Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.)

Here, the trial court denied the Association‟s request for a preliminary 

injunction on the ground, inter alia, that the Association failed to show a likelihood of 

success on the merits. The Association contends it had demonstrated a likelihood of 

success on the merits for the same reasons it relied upon in arguing the trial court erred 

by failing to grant the petition. For the reasons discussed ante, the petition was without 

merit. We therefore find no error in the trial court‟s denial of a preliminary injunction.
25

DISPOSITION

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

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.