Without Specific Council Approval or Charter Provision
Police Chief Lacks Legal Authority To Sign
Agreements That Create Liability For City

AUTHORITY FOR CALIFORNIA CITIES EXCESS LIABILITY (ACCEL) vs. CITY OF LOS ALTOS (136 C.A. 4 th 1207)

The police departments in Mountain View , Palo Alto , and Los Altos worked together on a regular basis to service emergency calls in each other's jurisdictions when help was needed. In early 1992, the chiefs of police of the three departments signed a document in which they recognized that their police departments "have combined resources to form a North County Regional Hostage Negotiations (HNT) and Special Weapons and Tactics (SWAT) Team [hereafter the Team]."

Los Altos permitted its department heads, such as the Police Chief, Lucy Carlton, to authorize "training as they saw fit" without City Council approval as long as the training fell within their department's budget. Los Altos , however, did not permit its department heads to authorize "anything that would have cost outside of the budget," "anything that would basically bind future councils," or "anything that would incur liability on behalf of the city, other than day-to-day operations" without City Council approval. To the extent that the 1992 document authorized training for police officers within Chief Carlton's police department budget, it was within the Chief's authority to sign it. The Los Altos City Council never considered or approved the 1992 document or the Team's training sessions.

In May 1994, a Palo Alto reserve police officer was accidentally shot to death, by a Mountain View police officer, during one of the Team's training sessions in Gilroy .

In August 2001, ACCEL filed a "complaint for money" against Los Altos alleging that the 1992 document obligated Los Altos to pay a pro rata share of the settlement that Palo Alto and Mountain View had negotiated with the reserve officer's heirs. The superior court ruled that defendant City of Los Altos was not obligated, under Government Code sections 895 and 895.2 to pay, based on the document signed by Los Altos' chief of police, and entered judgment for Los Altos.

The trial court rejected ACCEL's arguments finding that in a general law city only the City Council may enter and approve agreements that bind the City or expose the City to liability including agreements pursuant to Government Code section 895. Here, the police chief had authority to set department procedures and conduct officer training. As part of her authority, the police chief entered into a protocol for training. However, the undisputed facts support that the City Council did not approve the 'protocol' by resolution, contract, ordinance or in any other manner provided by law. Furthermore, the police chief did not have the authority to enter into agreements pursuant to Government Code section 895 without City Council approval. The protocol was not an agreement entered into with the City's consent required pursuant to Government Code section 895. Therefore, the protocol was not an agreement as defined by Government Code section 895.

The California Court of Appeal, Sixth Appellate District, rejected the ACCEL claims that the document was an "agreement" within the meaning of Government Code section 895, which obligated Los Altos to pay money to it, and affirmed the judgment. The Appellate Court noted that ACCEL failed to identify any law , such as a city charter provision (had Los Altos been a charter city), or an ordinance (in a general law city such as Los Altos ), or state statute that authorizes a police chief to execute agreements on behalf of a city.

HOW DOES THIS AFFECT YOUR ORGANIZATION:

When police departments enter into joint agreements which, by the very nature of the agreement, create potential liability for the City, it is incumbent upon the Chief to ensure that he/she has the authority to enter into the agreement.

Award of Attorney Fees Must Be Reasonable

ALLEN HARMAN v. CITY AND COUNTY OF SAN FRANCISCO et al., (136 C.A. 4 th 1279)

Allen Harman, a safety officer at the San Francisco International Airport , along with two other officers, filed a complaint alleging employment discrimination. The complaint originally attacked three personnel decisions: the termination of a pool of eligible candidates for a provisional appointment, the appointment of an acting supervisor for a 90-day period in April 1999, and the permanent appointment of airport operating supervisors through the normal civil service procedure.

Following a seven-day trial, the jury awarded Harman compensatory damages of $30,300 based on a special verdict finding discrimination against white males in promotional opportunities. The trial court subsequently awarded Harman's counsel $1.1 million in attorney fees. The California Court of Appeal, First Appellate District affirmed the judgment for damages but remanded the award of attorney fees for further consideration.

The City's argument relied on the absence of proof linking Harman's complaint of racial discrimination with policies promulgated by the civil service commission. The City pointed out that the diversity staffing plan, which was a focal point of Harman's case at trial, could not be imputed to the commission, since the plan was transmitted to the EEO Manager for her review, but it was never approved by the commission or filed with the commission as required by the San Francisco Administrative Code.

The Appellate Court disagreed stating that the flaw in the City's argument was that it assumed that, since the civil service commission was a fundamental source of municipal policymaking authority in personnel administration, it was the exclusive source of such authority under Monell. This argument, the court noted, ignored the possibility that final policymaking authority (a) may exist outside the civil service system or (b) may be effectively delegated to a particular official within the civil service system.

The court pointed out that facts of the present case showed an effective delegation of final policy- making authority regarding provisional Airport appointments to the EEO Manager of the Human Resources Department.

In remanding, the appellate court concluded that the trial court did not properly consider the standards governing the award of attorney fees under 42 USC Section 1988, stating "[w]e remand to give the court an opportunity to consider the determination of a reasonable fee."

HOW DOES THIS AFFECT YOUR ORGANIZATION:

The final review of any policy should be by the agency's legal advisor to ensure compliance with legal standards, both legislative and judicial.