CATHERINE A. BOLING et al., Petitioners, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; CITY OF SAN DIEGO et al., Real Parties in Interest; CITY OF SAN DIEGO, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION et al., Real Parties in Interest, 10 Cal. App. 5th 853

Opinion McCONNELL, P. J. In June 2012 the voters of City of San Diego (City) approved a citizen-sponsored initiative, the “Citizens Pension Reform Initiative” (hereafter, CPRI), which adopted a charter amendment mandating changes in the pension plan for certain employees of City. In the proceedings below, the Public Employment Relations Board (PERB) determined City was obliged to “meet and confer” pursuant to the provisions of the Meyers-Milias-Brown Act (MMBA) (Gov.

Code, § 3500 et seq.) over the CPRI before placing it on the ballot and further determined that, because City violated this purported obligation, PERB could order “make whole” remedies that de facto compelled City to disregard the CPRI. We conclude, for the reasons stated below, that under relevant California law the meet-and-confer obligations under the MMBA have no application when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process, but instead apply only to proposed charter amendments placed on the ballot by the governing body of a charter city.

We also conclude that, although it is undisputed that Jerry Sanders (City’s mayor during the relevant period) and others in City’s government provided support to the proponents to develop and campaign for the CPRI, PERB erred when it applied agency principles to transform the CPRI from a citizen-sponsored initiative, for which no meet-and-confer obligations exist, into a governing-body-sponsored ballot proposal within the ambit of People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591 [205 Cal.Rptr. 794, 685 P.2d 1145] (Seal Beach).

Accordingly, we hold PERB erred when it concluded City was required to satisfy the concomitant “meet-and-confer” obligations imposed by Seal Beach for governing-body-sponsored charter amendment ballot proposals, and therefore PERB erred when it found Sanders and the San Diego City Council (City Council) committed an unfair labor practice by declining to meet and confer over the CPRI before placing it on the ballot.

I OVERVIEW The San Diego Municipal Employees Association and other unions representing the prospectively affected employees (Unions) made repeated demands on Sanders and the City Council for City to meet and confer pursuant to the MMBA over the CPRI before placing it on the ballot. (San Diego Municipal Employees Assn. v.

Superior Court (2012) 206 Cal.App.4th 1447, 1451-1452 [143 Cal.Rptr.3d 49] (San Diego Municipal Employees).) However, there was no dispute the proponents of the CPRI had gathered sufficient signatures to qualify the CPRI for the ballot, and the City Council declined Unions’ meet-and-confer demands and placed it on the ballot. (Id. at pp. 1452-1453.) The citizens of San Diego ultimately voted to approve the CPRI. Unions filed unfair practice claims with PERB, asserting the rejection by Sanders and the City Council of their meet-and-confer demands constituted an unfair practice under the MMBA.

PERB commenced proceedings against City and ultimately ruled City violated the MMBA by refusing to meet and confer over the CPRI before placing it on the June 2012 ballot. PERB ordered, among other remedies, that City in effect refuse to comply with the CPRI.

City filed this petition for extraordinary review challenging PERB’s conclusion that, because high level officials and other individuals within City’s government publicly and privately supported the campaign to adopt the citizen-sponsored charter amendment embodied in the CPRI, City committed an unfair labor practice under the MMBA by placing the CPRI on the ballot without complying with the MMBA’s meet-and-confer requirements.

In Seal Beach, supra, 36 Cal.3d 591, our high court was required to harmonize the provisions of the meet-and-confer requirements of the MMBA with the constitutional grant of power to a “governing body” to place a charter amendment on the ballot that would impact the terms and conditions of employment for employees of that city.

The Seal Beach court concluded that, before a governing body may place such a charter amendment on the ballot, it must first comply with the meet-and-confer obligations under the MMBA. (Seal Beach, at pp. 597-601.) The Seal Beach court cautioned, however, that the case before it “[did] not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposed by initiative.” (Id. at p. 599, fn. 8.) The present proceeding requires that we first determine the issue left open in Seal Beach: does the meet-and-confer requirement apply when the charter amendment is proposed by a citizen-sponsored initiative rather than a governing-body-sponsored ballot proposal?

We conclude the meet-and-confer obligations under the MMBA apply only to a proposed charter amendment placed on the ballot by the governing body of a charter city, but have no application when such proposed charter amendment is placed on the ballot by citizen proponents through the initiative process. With that predicate determination, we must then decide whether PERB properly concluded City nevertheless violated its meet-and-confer obligations because the CPRI was not a citizen-sponsored initiative outside of Seal Beach’s holding, but was instead a “City”-sponsored ballot proposal within the ambit of Seal Beach.

Although several people occupying elected and nonelected positions in City’s government did provide support for the CPRI, we conclude PERB erred when it applied agency principles to transform the CPRI into a governing-body-sponsored ballot proposal.

Because we conclude that, notwithstanding the support given to the CPRI by Sanders and others, there is no evidence the CPRI was ever approved by City’s governing body (the City Council), we hold PERB erred when it concluded City was required to satisfy the concomitant meet-and-confer obligations imposed by Seal Beach for governing-body-sponsored charter amendment ballot proposals. II FACTUAL AND PROCEDURAL BACKGROUND A. DeMaio’s Pension Reform Proposal In early November 2010, City Councilmember Carl DeMaio announced his comprehensive plan to reform the City’s finances.

His wide-ranging plan to reform the City’s finances included, among its many proposals, a proposal to replace defined benefit pensions with 401(k)-style plans for newly hired employees. B. Sanders’s Pension Reform Proposal In late November 2010, Sanders also announced that he would attempt to develop and place a citizens’ initiative on the ballot to eliminate traditional pensions for new hires at City and to replace them with a 401(k)-style plan for nonsafety new hires.

Sanders believed replacing the old system with the new 401(k)-style plan was necessary to solve what he viewed to be the unsustainable cost to City of the defined benefit pension for City employees. Sanders, after discussions with various members of his staff, decided to pursue his pension reform proposal as a citizens’ initiative, rather than to pursue it by a City Council-sponsored ballot measure.

Sanders chose to pursue his pension reform proposal as a citizen-sponsored initiative, rather than a City Council-sponsored ballot proposal, because he did not believe the City Council would put his proposal on the ballot “under any circumstances,” and he also believed pursuing a City Council-sponsored ballot proposal (which would also require negotiating with the Unions) could require unacceptable compromises to his proposal. Sanders held a “kick-off’ press conference to announce his intent to pursue his pension reform plans through a private initiative.

This event, which was held at City Hall and at which Sanders was joined by others, was covered by the local media and included media statements informing the public that “San Diego voters will soon be seeing signature-gatherers for a ballot measure that would end guaranteed pensions for new [Cjity employees.” Sanders’s office also issued a news release—styled as a “Mayor Jerry Sanders Fact Sheet”—to announce his decision.

Faulconer disseminated Sanders’s press release by an e-mail stating Sanders and Faulconer “would craft a groundbreaking [pension] reform ballot measure and lead the signature-gathering effort to place the measure before voters,” and Sanders sent a similar e-mail announcing he was partnering with Faulconer to “craft language and gather signatures” for a ballot initiative to reform public pensions.

Over the ensuing months, Sanders continued developing and publicizing his pension reform proposal, and in early January 2011 a committee was formed (San Diegans for Pension Reform (SDPR)) to raise money to support his proposed initiative.

At his January 2011 State of the City address, Sanders vowed to “complete our financial reforms and eliminate our structural budget deficit.” He stated he was “proposing a bold step” of “creating a 401(k)-style plan for future employees . . . [to] contain pension costs and restore sanity to a situation confronting every big city” and that, “acting in the public interest, but as private citizens,” Sanders announced that he, Faulconer, and the San Diego City Attorney (City Attorney) “will soon bring to voters an initiative to enact a 401(k)-style plan.” That same day, Sanders’s office issued a press release publicizing his vow “to push forward his ballot initiative” for pension reform.

Sanders believed he had made it clear to the public that he undertook his efforts as a private citizen even though he was identified as “mayor” when speaking in public about his proposal. C. DeMaio’s Competing Pension Reform Initiative The plan announced by DeMaio in early November 2010 for pension reform differed in some respects from Sanders’s proposal. For example, DeMaio’s proposed plan for a 401(k)-style plan for new hires did not exempt police, firefighters and lifeguards. DeMaio’s proposed plan also included a “cap” on pensionable pay.

Two local organizations, the Lincoln Club and the San Diego County Taxpayers Association (SDCTA), supported DeMaio’s competing plan as a plan that was “tougher” than Sanders’s proposal. D. The CPRI In the aftermath of Sanders’s January 2011 State of the City address, people in the business and development community informed Sanders they believed two competing initiative proposals—the DeMaio proposal and the Sanders proposal—would be confusing and there would be inadequate money to fund two competing citizens’ initiatives.

Shortly after a March 24, 2011, press conference at which Sanders presented his refined proposal, people within either the Lincoln Club or SDCTA told Sanders they were “moving forward” with DeMaio’s plan because it had sufficient money and was going to go onto the ballot, and that Sanders could either join them or go off on his own. This apparently triggered a series of meetings between supporters of the competing proposals, and they reached an accord on the parameters of a single initiative.

The final initiative proposal, which ultimately became the CPRI, melded elements of both Sanders’s and DeMaio’s proposals: newly hired police would still continue with a defined benefit pension plan for newly hired police officers, but newly hired firefighters would be placed into the 401(k)-style plan. The pensionable pay freeze would be subject to the meet-and-confer process and could be overridden by a two-thirds majority of the City Council, but there would be no cap on total payroll.

Sanders called the negotiations “difficult,” and testified he did not like every part of the new proposal, but he nonetheless supported it because he believed it was “important for the City in the long run.” A law firm (Lounsbery, Ferguson, Altona & Peak (hereafter Lounsbery)) was hired by SDCTA to draft the language of the CPRI. SDCTA gave Lounsbery the DeMaio draft of the initiative as the starting point for Lounsbery’s drafting of the final language for the initiative. Lounsbery made relatively few revisions to it to finalize the language that became the CPRI. Lounsbery was paid by SDCTA for its services.

On April 4, 2011, the City Clerk received a notice of intent to circulate a petition seeking to place the CPRI on the ballot, seeking to amend City’s charter pursuant to

section 3 of

article XI of the California Constitution. The ballot proponents were Catherine A. Boling (Boling), T.J. Zane (Zane), and Stephen Williams (Williams) (collectively, Proponents). To qualify the CPRI for the ballot, Proponents needed to obtain verified signatures from at least 15 percent (94,346) of City’s registered voters. On September 30, 2011, Zane delivered to the City Clerk a petition containing over 145,000 signatures, and the City Clerk forwarded the petition to the San Diego County Registrar of Voters (SDROV) to officially verify the signatures.

The SDROV determined the initiative petition contained sufficient valid signatures and, accordingly, on November 8, 2011, the SDROV issued a certification that the CPRI petition had received a “SUFFICIENT” number of valid signatures requiring it to be presented to the voters as a citizens’ initiative. The City Clerk submitted the SDROV’s certification to the City Council on December 5, 2011, and that same day the City Council passed resolution R-307155, a resolution of intention to place the CPRI on the lune 5, 2012, presidential primary election ballot, as required by law. E.

Sanders Campaigns for the CPRI The day after the proponents filed their notice of intent to circulate, Sanders, DeMaio, Goldsmith, Faulconer, Boling, and Zane held a press conference on the City Concourse at which they announced the filing of the CPRI petition. A news media outlet reported that proponents of the dueling ballot measures to curtail San Diego City pensions had reached a compromise to combine forces behind a single initiative for the lune ballot. Sanders thereafter supported the campaign to gather signatures and promote the CPRI.

He touted its importance by providing interviews and quotes to the media and by discussing it at his speaking appearances. Additionally, campaign disclosure statements indicated SDPR (the committee formed to promote Sanders’s original initiative proposal) contributed $89,000 in cash and nonmonetary support to the committee supporting the CPRI from lanuary 1, 2011, through lune 1, 2011. F. The Meet-and-confer Demands On luly 15, 2011, the San Diego Municipal Employees Association (MEA) wrote to Sanders asserting City had the obligation under the MMBA to meet and confer over the CPRI.

When Sanders did not respond, MEA wrote a second letter demanding City satisfy its meet-and-confer obligations concerning the CPRI. City Attorney Goldsmith responded by stating, among other tilings, the City Council was required (under the California Constitution and state elections law) to place the CPRI without modification on the ballot as long as the proponents submitted the requisite signatures and otherwise met the procedural requirements for a citizens’ initiative to amend the charter.

Goldsmith explained that, “[assuming the proponents of the [CPRI] obtain the requisite number of signatures on their petition and meet all other legal requirements, there will be no determination of policy or course of action by the City Council, within the meaning of the MMBA, triggering a duty to meet and confer in the act of placing the citizen initiative on the ballot.” MEA, in its September 9, 2011, response to Goldsmith’s explanation, asserted City was obligated to meet and confer because Sanders was acting as the mayor to promote the CPRI and hence ‘“has clearly made a determination of policy for this City related to mandatory subjects of bargaining . . . .” MEA asserted Sanders was ‘“using the pretense that [the CPRI] is a ‘citizens’ initiative’ when it is, in fact, this City’s initiative” as a deliberate tactic to ‘“dodge the City’s obligations under the MMBA.” The City Attorney’s office reiterated City had no meet-and-confer obligations ‘“at this point in the process” because “there is no legal basis upon which the City Council can modify the [CPRI], if it qualifies for the ballot,” but instead the City Council “must comply with California Elections Code . . .

section 9255” and place the CPRI on the ballot if it meets the signature and other procedural requirements set forth in the Elections Code. Accordingly, City declined MEA’s demand to meet and confer over the CPRI. G.

The Initial Proceedings and San Diego Municipal Employees MEA filed its unfair practice charge (UPC) on January 20, 2012, asserting City refused to meet and confer over the CPRI because “City claims that it is a ‘citizen’s initiative’ not ‘City’s initiative,’ ” and MEA alleged this refusal violated the MMBA because the CPRI “is merely a sham device which City’s ‘Strong Mayor’ has used for the express purpose of avoiding City’s MMBA obligations to meet and confer.” However, on January 30, 2012, the City Council, after recognizing the petitions for the CPRI contained the requisite number of signatures, enacted an ordinance placing the CPRI on the June 2012 ballot.

On February 10, 2012, PERB issued a complaint against City, alleging City’s failure to meet and confer violated sections 3505 and 3506, and was an unfair practice within the meaning of

section 3509, subdivision (

b) and California Code of Regulations, title 8,

section 32603, subdivisions (

a) through (c).

PERB also ordered an expedited administrative hearing and appointed an administrative law judge (ALJ) to hold an evidentiary hearing on the complaints. (San Diego Municipal Employees, supra, 206 Cal.App.4th at p. 1453.) PERB also filed a superior court action seeking, among other relief, an order temporarily enjoining presentation of the CPRI to the voters on the June 2012 ballot, but the trial court rejected PERB’s motion for a preliminary injunction. (San Diego Municipal Employees, supra, 206 Cal.App.4th at pp. 1453-1454.) After the ALJ scheduled an administrative hearing for early April 2012 on the complaints, City moved in the superior court action for an order staying the administrative hearing and quashing the subpoenas issued by the ALJ.

The trial court granted City’s motion to stay the administrative proceedings, and MEA pursued writ relief. (Id. at pp. 1454-1455.) In San Diego Municipal Employees, this court concluded the stay was improper because ‘“[a]s the expert administrative agency established by the Legislature to administer collective bargaining for covered governmental employees, PERB has exclusive initial jurisdiction over conduct that arguably violates the MMBA” (id. at p. 1458), and PERB’s “initial exclusive jurisdiction extends to activities ‘ “arguably . . . prohibited” by public employment labor law (id. at p. 1460, quoting City of San Jose v.

Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 606 [110 Cal.Rptr.3d 718, 232 P.3d 701], italics added by San Diego Municipal Employees.) This court noted that, had City directly placed the CPRI on the ballot without satisfying the meet-and-confer procedures, it would have engaged in conduct prohibited by the MMBA, and we ultimately concluded that because “MEA’s UPC alleges (and provides some evidence to support the allegations) that the CPRI (while nominally a citizen initiative) was actually placed on the ballot by City using straw men to avoid its MMBA obligations, the UPC does allege City engaged in activity arguably prohibited by public employment labor law, giving rise to PERB’s initial exclusive jurisdiction.” (San Diego Municipal Employees, at p. 1460.) This court ultimately concluded it was error to stay PERB’s exclusive initial jurisdiction over the UPC claims, and vacated the stay. (Id. at pp. 1465-1466.) H.

PERB Proceedings and Determination The ALJ Proposed Decision The ALJ held an administrative hearing and, after taking evidence, issued a proposed decision. The proposed decision found Sanders chose to pursue a citizens’ initiative measure, rather than invoke the City Council’s authority to place his plan on the ballot as a City Council-sponsored ballot proposal, because he doubted the City Council’s willingness to agree with him and because he sought to avoid concessions to the Unions.

The ALJ found the CPRI, which embodied a compromise between Sanders’s proposal and the proposal championed by DeMaio, was then carried forward as a citizens’ initiative and was adopted by the electorate.

The ALJ found that, because Sanders occupied the office of mayor in a city that uses the “strong mayor” form of governance, and in that role has certain responsibilities when conducting collective bargaining with represented employee organizations on behalf of City (including the responsibility to develop City’s initial bargaining proposals, to map out a strategy for negotiations, and to brief the City Council on the proposals and strategies and to obtain the City Council’s agreement to proceed), Sanders “was not legally privileged to pursue implementation of [pension reform] as a private citizen.” The ALJ concluded that because Sanders, acting “under the color of his elected office” and with the support of two City Council Members and the City Attorney, launched and pursued the pension reform initiative campaign, Sanders made “a policy determination that [City] propose [d] for adoption by the electorate” on a negotiable matter but denied the Unions “an opportunity to meet and confer over his policy determination in the form of [the CPRI],” in violation of the meet-and-confer obligations under Seal Beach.

The ALJ further concluded that, because of Sanders’s “status as a statutorily defined agent of the public agency and common law principles of agency, the same obligation to meet and confer applie[d] to the City because it has ratified the policy decision resulting in the unilateral change.” The PERB Decision After PERB considered supplemental briefing concerning the ALJ’s proposed decision from City, Unions and the ballot Proponents, PERB issued the decision challenged in this writ proceeding that largely affirmed the ALJ’s decision.

Specifically, PERB rejected City’s exceptions to the ALJ’s conclusions that City was charged with Sanders’s conduct under principles of statutory agency, common law principles of agency based on actual and apparent authority, and common law ratification principles.

Instead, PERB adopted the ALJ’s findings that (1) “under the City’s Strong Mayor form of governance and common law principles of agency, Sanders was a statutory agent of the City with actual authority to speak for and bind the City with respect to initial proposals in collective bargaining with the Unions; (2) under common law principles of agency, [Sanders] acted with actual and apparent authority when publicly announcing and supporting a ballot measure to alter employee pension benefits; and (3) the City Council had knowledge of [Sanders’s conduct], by its action and inaction, and, by accepting the benefits of Proposition B, thereby ratified his conduct.” PERB’s decision also concluded that, because City (through Sanders as its agent) decided to place the CPRI on the ballot while acquiescing in Sanders’s rejection of the Unions’ meet-and-confer demands, City violated the MMBA.

PERB modified the remedy ordered in the ALJ’s proposed decision insofar as the proposed decision ordered City to vacate the results of the election adopting the CPRI.

However, PERB’s remedy, invoking its “make-whole” and “restoration” powers for remedying violations of the MMBA, ordered (among other things) that City “pay employees for all lost compensation, including but not limited to the value of lost pension benefits, resulting from the enactment of [the CPRI], offset by the value of new benefits required from the City under [the CPRI].” Writ Proceedings Challenging PERB Decision City timely filed this writ petition challenging PERB’s decision (§ 3509.5), and this court issued its writ of review.

In City’s writ proceeding, City named Proponents as additional real parties in interest and Proponents have filed briefs in that proceeding. Proponents also filed a separate writ petition challenging PERB’s decision, and this court issued a writ of review. We subsequently consolidated the two writ proceedings for consideration and disposition.

In City’s writ proceeding, PERB (joined by Unions) has moved to dismiss Proponents as real parties in interest, arguing Proponents lack standing to participate as real parties because they were not (and were indeed barred by PERB regulations from being) parties to the underlying PERB proceeding. PERB has separately moved to dismiss Proponents’ writ proceeding on the same ground. We conclude official proponents of a ballot initiative have a sufficiently direct interest in the result of the proceeding (Connerly v.

State Personnel Bd. (2006) 37 Cal.4th 1169, 1178 [39 Cal.Rptr.3d 788, 129 P.3d 1]) to join as real parties in interest in an action, either by intervention or because they are named by other parties as real parties in interest, which is directed at the evisceration of the ballot measure for which they were the official proponents. (See Perry v. Brown (2011) 52 Cal.4th 1116, 1125 [134 Cal.Rptr.3d 499, 265 P.3d 1002]; see also Amwest Surety Ins. Co. v.

Wilson (1995) 11 Cal.4th 1243, 1250 [48 Cal.Rptr.2d 12, 906 P.2d 1112].) Accordingly, we deny PERB’s motion to dismiss Proponents as real parties in interest from City’s writ proceeding. Additionally, in light of our conclusion that PERB’s decision must be annulled because City was not obligated to meet and confer prior to placing the CPRI on the ballot, PERB’s motion to dismiss Proponents’ writ proceeding (and the additional arguments raised in Proponents’ writ proceeding) are moot and we need not address them.

Ill STANDARDS OF REVIEW The standards applicable to our review of a PERB decision are governed by differing degrees of deference. First, insofar as PERB’s decision rests on its resolution of disputed factual questions, we apply the most deferential standard of review. Under this standard, PERB’s factual findings are conclusive as long as there is any substantial evidence in the record to support its factual findings. (Trustees of Cal. State University v. Public Employment Relations Bd. (1992) 6 Cal.App.4th 1107, 1123 [8 Cal.Rptr.2d 60]; see, e.g., Regents of University of California v.

Public Employment Relations Bd. (1986) 41 Cal.3d 601, 618-623 [224 Cal.Rptr. 631, 715 P2d 590] [affirming PERB determination that students were employees under Higher Education Employer-Employee Relations Act because substantial evidence supported conclusion students’ educational objectives were subordinate to the services students performed as house staff].) The deference to be accorded PERB’s resolution of questions of law, and PERB’s application of that law to the facts found by PERB, presents a more complicated question, because “balancing the necessary respect for an agency’s knowledge, expertise, and constitutional office with the courts’ role as interpreter of laws can be a delicate matter . . . .” (Gonzales v.

Oregon (2006) 546 U.S. 243, 255 [163 L.Ed.2d 748, 126 S.Ct. 904].) PERB asserts that we must follow its determinations of law unless clearly erroneous. Specifically, PERB argues that because it has been invested by the legislative scheme with the “specialized and focused task” of protecting “ ‘both employees and the state employer from violations of the organizational and collective bargaining rights guaranteed by [law]’ ” (Banning Teachers Assn. v.

Public Employment Relations Bd. (1988) 44 Cal.3d 799, 804 [244 Cal.Rptr. 671, 750 P.2d 313]), PERB is “ ‘one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect’ ” (ibid., quoting Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 488 [95 L.Ed. 456, 71 S.Ct. 456]).

Accordingly, PERB argues, “ ‘[T]he relationship of a reviewing court to an agency such as PERB, whose primary responsibility is to determine the scope of the statutory duty to bargain and resolve charges of unfair refusal to bargain, is generally one of deference’ ” (ibid., quoting Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1012 [175 Cal.Rptr. 105]), and PERB’s

interpretation will generally be followed unless it is clearly erroneous. However, in Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1 [78 Cal.Rptr.2d 1, 960 P.2d 1031] (Yamaha), our Supreme Court explained, “ ‘The standard for judicial review of agency

interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.’ ” (Id. at p. 8.) Yamaha’s conceptual framework noted that courts must distinguish between two classes of interpretive actions by the administrative body—those that are “quasi-legislative” in nature and those that represent

interpretations of the applicable law—and cautions that “because of their differing legal sources, [each] command significantly different degrees of deference by the courts.” {Id. at p. 10.) When examining the former type of action, an agency

interpretation “represents an authentic form of substantive lawmaking: Within its jurisdiction, the agency has been delegated the Legislature’s lawmaking power. [Citations.] Because agencies granted such substantive rulemaking power are truly ‘making law,’ their quasi-legislative rules have the dignity of statutes. When a court assesses the validity of such rules, the scope of its review is narrow.

If satisfied that the rule in question lay within the lawmaking authority delegated by the Legislature, and that it is reasonably necessary to implement the purpose of the statute, judicial review is at an end.” (Id. at pp. 10-11.) However, “[t]he quasi-legislative standard of review ‘is inapplicable when the agency is not exercising a discretionary rule-making power, but merely construing a controlling statute.

The appropriate mode of review in such a case is one in which the judiciary, although taking ultimate responsibility for the construction of the statute, accords great weight and respect to the administrative construction.’ ” (Yamaha, supra, 19 Cal.4th at p. 12, italics added by Yamaha, quoting International Business Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923, 931, fn. 7 [163 Cal.Rptr. 782, 609 P.2d 1].) Yamaha recognized that, unlike quasi-legislative rule making by the agency, an agency’s

interpretation of the law does not implicate the exercise of a delegated lawmaking power but “instead . . . represents the agency’s view of the statute’s legal meaning and effect, questions lying within the constitutional domain of the courts.” {Id. at p. 11.) Yamaha recognized that an agency may often be interpreting the legal principles within its administrative jurisdiction and, as such “may possess special familiarity with satellite legal and regulatory issues. It is this ‘expertise,’ expressed as an

interpretation . . . that is the source of the presumptive value of the agency’s views. An important corollary of agency

interpretations, however, is their diminished power to bind. Because an

interpretation is an agency’s legal opinion, however ‘expert,’ rather than the exercise of a delegated legislative power to make law, it commands a commensurably lesser degree of judicial deference.” (Ibid.) We construe Yamaha as recognizing that, in our tripartite system of government, it is the judiciary—not the legislative or executive branches— that is charged with the final responsibility to determine questions of law {Yamaha, supra, 19 Cal.4th at p. 11 & fn. 4), and “[w]hether judicial deference to an agency’s

interpretation is appropriate and, if so, its extent— the ‘weight’ it should be given—is thus fundamentally situational.” {Id. at p. 12.) Thus, while some deference to an agency’s resolution of questions of law may be warranted when the agency possesses a special expertise with the legal and regulatory milieu surrounding the disputed question (see New Cingular Wireless PCS, LLC v.

Public Utilities Com. (2016) 246 Cal.App.4th 784, 809-810 [201 Cal.Rptr.3d 652]), the judiciary accords no deference to agency determinations on legal questions falling outside the parameters of the agency’s peculiar expertise. (See, e.g., Overstreet ex rel. NLRB v. United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 (9th Cir. 2005) 409 F.3d 1199, 1208-1209 [no deference accorded to the NLRB’s (National Labor Relations Board)

interpretation of National Labor Relations Act (29 U.S.C. § 151 et seq.; NLRA) when judged against backdrop of competing constitutional issues]; accord, California State Teachers’ Retirement System v. County of Los Angeles (2013) 216 Cal.App.4th 41, 55 [156 Cal.Rptr.3d 545] [under Yamaha “the degree of deference accorded should be dependent in large part upon whether the agency has a ‘ “comparative interpretative advantage over the courts” ’ and on whether it has probably arrived at the correct

interpretation”]; Azusa Land Partners v. Department of Industrial Relations (2010) 191 Cal.App.4th 1, 14 [120 Cal.Rptr.3d 27] [Where dispositive facts are undisputed and purely legal issues remain requiring

interpretation of a statute an administrative agency is responsible for enforcing, courts exercise independent judgment, and “agency’s

interpretation is ‘ “one of several interpretive tools that may be helpful. In the end, however, ‘[the court] must . . . independently judge the text of the statute.’ ” ’ ”].) IV ANALYSIS A. Overview of MMBA The MMBA codifies California’s recognition of the right of public employees to collectively bargain with their government employers, and reflects a strong policy in California favoring peaceful resolution of employment disputes by negotiations. (§ 3500; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 622 [116 Cal.Rptr. 507, 526 P.2d 971].) In furtherance of that goal,

section 3504.5, part of the MMBA, requires that reasonable written notice be given to organizations such as the MEA of any action “proposed to be adopted by the governing body” that directly relates to matters within the scope of representation. (§ 3504.5, subd. (a).)

Section 3505 further requires such governing body or its designated representative, “prior to arriving at a determination of policy or course of action,” to “meet and confer in good faith” with representatives of the union concerning negotiable subjects. The duty to meet and confer, which “has been construed as a duty to bargain . . . [citation] [and] . . . requires the public agency to refrain from making unilateral changes in employees’ wages and working conditions until the employer and employee association have bargained to impasse” (Santa Clara County Counsel Attys. Assn. v.

Woodside (1994) 7 Cal.4th 525, 537 [28 Cal.Rptr.2d 617, 869 P.2d 1142]), thus places on the employer the duties (1) to give reasonable written notice (to each recognized employee organization affected) of an ordinance directly relating to matters within the scope of representation “proposed to be adopted by the governing body” and provide such organization the opportunity to meet with the governing body, and (2) to meet and confer in good faith (and consider fully the presentations by the organization) prior to arriving at any determination on the governing body’s course of action (§ 3504.5, subd. (a); see § 3505).

Accordingly, absent emergency circumstances or other exceptions, a governing body that is subject to the MMBA may not adopt a legislative policy that unilaterally changes its employees’ wages and working conditions without first complying with its meet-and-confer obligations imposed by the MMBA.

In Seal Beach, the court was required to harmonize the provisions of the meet-and-confer requirements of the MMBA with the constitutional grant of power to a city council, as governing body for a charter city, to place a charter amendment on the ballot that would (if adopted) impact the terms and conditions of employment for employees of that city. (Seal Beach, supra, 36 Cal.3d at p. 597.) The Seal Beach court concluded that, before such a governing body may place this type of charter amendment on the ballot, it must first comply with the meet-and-confer obligations under the MMBA. (Seal Beach, at pp. 597-601.) The Seal Beach court cautioned, however, that the case before it “[did] not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposed by initiative.” (Id. at p. 599, fn. 8.) B.

Seal Beach’s Meet-and-confer Obligations Do Not Apply to Citizens’ Initiatives We first address and resolve the issue expressly left open in Seal Beach: whether the meet-and-confer requirements of the MMBA, which Seal Beach concluded did apply to a city council’s determination to place a charter amendment on the ballot, apply with equal force before the governing body of a charter city may comply with its statutory obligation to place on the ballot a duly qualified citizens’ initiative proposing the same type of charter amendment.

Citizens’ Initiatives Do Not Trigger MMBA Procedural Requirements The charter amendment provisions contained in

article XI,

section 3, subdivision (b), of the California Constitution provide only two avenues by which a charter amendment may be proposed: it “may be proposed by initiative or by the governing body.” When an amendment is proposed by initiative, and at least 15 percent of the registered voters of the charter city sign the initiative petition, the governing body ‘'shall . . . [submit the initiative] to the voters” at an election not less than 88 days after the date of the order of election. (Elec.

Code, 9255, subd. (c), italics added.) The “governing body” has no discretion to do anything other than to place a properly qualified initiative on the ballot. (Farley v. Healey (1967) 67 Cal.2d 325, 327 [62 Cal.Rptr. 26, 431 P.2d 650]; Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 148 [16 Cal.Rptr.2d 408] [“local governments have the purely ministerial duty to place duly certified initiatives on the ballot”].) Because “[procedural requirements which govern council action . . . generally do not apply to initiatives” (Associated Home Builders etc., Inc. v.

City of Livermore (1976) 18 Cal.3d 582, 594 [135 Cal.Rptr. 41, 557 P.2d 473]), the courts have repeatedly noted “it is well established . . . that the existence of procedural requirements for the adoptions of local ordinances generally does not imply a restriction of the power of [a citizen-sponsored] initiative . . .” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 785 [38 Cal.Rptr.2d 699, 889 P.2d 1019]; accord, Building Industry Assn. v.

City of Camarillo (1986) 41 Cal.3d 810, 823-824 [226 Cal.Rptr. 81, 718 P.2d 68] [procedural requirements of § 65863.6, which must be met before local agency adopts no-growth ordinance, inapplicable to voter-sponsored initiative adopting no-growth ordinance]). In contrast, when a governing body of a city votes to adopt a proposal for submission to its voters, such action is a discretionary rather than ministerial determination by the governing body. (See, e.g., Friends of Sierra Madre v.

City of Sierra Madre (2001) 25 Cal.4th 165, 187 [105 Cal.Rptr.2d 214, 19 P.3d 567] (Friends of Sierra Madre).) Because of the “clear distinction between voter-sponsored and city-council-generated initiatives” (id. at p. 189), the courts have repeatedly concluded the same procedural limitations that would otherwise apply to the same discretionary determination by a governing body will apply to a city council-generated ballot proposal. Thus, in Friends of Sierra Madre, the court held that the procedural mandates of the California Environmental Quality Act (CEQA; Pub.

Resources Code, § 21000 et seq.) were required for a ballot measure, generated by a city council in exercise of its discretion, which would remove certain structures from protection as historic landmarks. While similar citizen-sponsored measures do not require compliance with analogous regulatory procedural prerequisites (see, e.g., Stein v. City of Santa Monica (1980) 110 Cal.App.3d 458, 460-461 [168 Cal.Rptr. 39]; cf. Tuolumne Jobs & Small Business Alliance v.

Superior Court (2014) 59 Cal.4th 1029, 1035-1037 [175 Cal.Rptr.3d 601, 330 P.3d 912]), Friends of Sierra Madre concluded a city council-sponsored ballot proposal for a discretionary project could not evade compliance with CEQA. (Friends of Sierra Madre, at pp. 186-191.) In this setting, Seal Beach concluded the procedural requirements of the MMBA did apply to a city council-sponsored ballot proposal amending the city charter as to matters concerning the terms and conditions of public employment.

The court reasoned the meet-and-confer requirements, imposed on public agencies as procedural requirements a public agency must satisfy before adopting its final budget for the ensuing year (Seal Beach, supra, 36 Cal.3d at pp. 596-597), were procedural requirements that could coexist with the constitutional power of a city council to propose a substantive charter amendment. (Id. at p. 600, fn. 11 [noting “there is a clear distinction between the substance of a public employee labor issue and the procedure by which it is resolved” and acknowledging that although salaries of local employees of a charter city constitute municipal affairs not subject to general laws, the process by which salaries are fixed is a matter of statewide concern].) Seal Beach noted that “[ajlthough [section 3505] encourages binding agreements resulting from the parties’ bargaining, the governing body of the agency— here the city council—retains the ultimate power to refuse an agreement and to make its own decision. [Citation.] This power preserves the council’s rights under

article XI,

section 3, subdivision (b)—it may still propose a charter amendment if the meet-and-confer process does not persuade it otherwise. [¶] We therefore conclude that the meet-and-confer requirement of

section 3505 is compatible with the city council’s constitutional power to propose charter amendments.” (Id. at p. 601, fn. omitted.) The core tenets of Seal Beach were that (1) the MMBA was clearly intended to apply to regulate actions by the governing bodies of charter cities and (2) the MMBA mandates that those governing bodies satisfy the procedural prerequisites (the meet-and-confer process) before unilaterally imposing any changes to the matters within the scope of representation. (Seal Beach, supra, 36 Cal.3d at pp. 596-597.) From those tenets, Seal Beach concluded a governing body constrained by the procedural requirements of the MMBA cannot circumvent the meet-and-confer requirement by using a charter amendment to unilaterally implement the same changes that would otherwise be subjected to the meet-and-confer requirement. (Seal Beach, at p. 602.) In contrast, the courts have refused to subject citizen-sponsored initiatives to the same procedural constraints that would apply if the same subject matter were embodied in a city council-sponsored ballot proposal (compare Stein v.

City of Santa Monica, supra, 110 Cal.App.3d at pp. 460-461 with Friends of Sierra Madre, supra, 25 Cal.4th at pp. 186-191), which militates in favor of a conclusion that the procedural meet-and-confer obligation cannot be superimposed on a citizen-sponsored initiative addressing matters within the “scope of representation” as that term is used in the MMBA. (Accord, Native American Sacred Site & Environmental Protection Assn. v.

City of San Juan Capistrano (2004) 120 Cal.App.4th 961, 968 [16 Cal.Rptr.3d 146] [“it is plain that voter-sponsored initiatives are not subject to the procedural requirements that might be imposed on statutes or ordinances proposed and adopted by a legislative body, regardless of the substantive law that might be involved”].) More importantly, the meet-and-confer requirements of the MMBA by its express terms constrain only proposals by the “governing body” (§§ 3504.5, subd. (a) [“the governing body . . . shall give reasonable written notice ... of any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body” (italics added)], 3505 [“[t]he governing body . . . shall meet and confer . . . prior to arriving at a determination of policy or course of action”].) Because a citizen-sponsored initiative does not involve a proposal by the “governing body,” we are convinced there are no analogous meet-and-confer requirements for citizen-sponsored initiatives.

PERB’s Contrary Analysis Is Unpersuasive The PERB decision ostensibly “decline[d] to decide” the “significant and difficult questions about the applicability of the MMBA’s meet-and-confer requirement to a pure citizens’ initiative,” which it appeared to deem unnecessary because it concluded the CPRI was not a “pure” citizen-sponsored initiative because of Sanders’s involvement in promoting the CPRI. However, PERB nevertheless appeared to conclude the citizens’ initiative rights enshrined in

article II,

section 11, and

article XI,

section 3, subdivision (b), of the California Constitution would not obviate the meet- and-confer obligations imposed on City by the MMBA. In this writ proceeding, PERB and Unions appear to resurrect this argument, asserting the PERB decision does no violence to the citizens’ initiative process.

Specifically, they note the Legislature can limit (or entirely preempt) the local initiative power on matters of statewide (as opposed to purely local) concern, and contend that because the Supreme Court in Voters concluded a local referendum could not be used to reverse the adoption of a memorandum of understanding (MOU) following negotiations pursuant to the MMBA because allowing such use of the referendum would harm the statewide interest underlying the MMBA, the same conclusion applies equally to the initiative process.

Accordingly, PERB and Unions argue that when the electorate seeks to exercise control over matters (such as pension benefits) that would be negotiable subjects under the MMBA, the constitutional right of initiative must yield to the statewide objectives of the MMBA, including the procedural requirements of the MMBA imposing a meet-and-confer process before proposals impacting negotiable subjects may be adopted. We believe PERB and Unions misconstrue, and hence overstate, the import of Voters.

The Voters court addressed a distinct and limited issue: whether voters in a county were entitled to mount a referendum challenge to a county ordinance (which adopted an MOU impacting county employee pension benefits) under the relevant constitutional and statutory provisions. The court first concluded that

article XI,

section 1, subdivision (b), of the California Constitution neither authorized nor restricted voters from challenging the county ordinance by referendum. (Voters, supra, 8 Cal.4th at pp. 770-776.) The court, after recognizing courts should apply a liberal construction to the initiative power, with any reasonable doubt resolved in favor of preserving it, opined that “we will presume, absent a clear showing of the Legislature’s intent to the contrary, that legislative decisions of a city council or board of supervisors—including local employee compensation decisions [citation]— are subject to initiative and referendum.

In this case, the legislative intent to bar the referendum power over the ordinance in question is unmistakable.” (Id. at p. 777, italics added.) Specifically, Voters determined the Legislature, by its enactment of

section 25123, subdivision (e), evinced an unmistakable legislative intent to bar challenges by referendum to county ordinances specifically related to the adoption or implementation of MOU’s. (Voters, at pp. 777-778.) The Voters court then rejected the petitioner’s claim that

section 25123, subdivision (e), was unconstitutional, reasoning the Legislature may properly restrict the right of referendum “if this is done as part of the exercise of its plenary power to legislate in matters of statewide concern,” and concluded it was required to uphold

section 25123, subdivision (e)’s constitutionality if its referendum restriction, which was effectively an ‘“implied delegation of exclusive decisionmaking authority to the boards of supervisors to adopt and implement memoranda of understanding between counties and their employee associations” (Voters, at pp. 779-780), could be construed as fulfilling some legislative purpose of statewide import. The court inferred the legislative purpose of statewide import existed because of the MMBA, which was ‘“a statutory scheme in an area of statewide concern that justifies the referendum restriction inherent in

section 25123, subdivision (e).” (Voters, at pp. 780, 778-784.) The distinct and limited issue examined in Voters—whether the Legislature clearly and unmistakably intended to delimit the electorate’s referendum rights and (if so) whether that constraint was constitutionally permissible— has no applicable counterpart here.

Although Voters would support the constitutionality of an enactment by the California Legislature barring citizens’ initiatives that seek to amend a city charter to limit employee compensation, we are unaware of any statute clearly and unmistakably barring such citizens’ initiatives (nor have PERB or Unions identified any such bar) and ‘“we will presume, absent a clear showing of the Legislature’s intent to the contrary, that . . . local employee compensation decisions [citation] ... are subject to initiative and referendum.” (Voters, supra, 8 Cal.4th at p. 777.) The courts have repeatedly upheld the ability of the electorate of a charter city to legislate on compensation issues by initiative (see, e.g., Spencer v.

City of Alhambra (1941) 44 Cal.App.2d 75, 77-79 [111 P.2d 910]; Kugler v. Yocum (1968) 69 Cal.2d 371, 374-377 [71 Cal.Rptr. 687, 445 P.2d 303] (Kugler)), and the Voters court specifically declined to extend its holding to disapprove another decision, United Public Employees v.

City and County of San Francisco (1987) 190 Cal.App.3d 419 [235 Cal.Rptr. 477], which concluded a charter provision requiring that all increases in employee benefits be subject to voter approval by referendum was compatible with the MMBA. (Voters, at pp. 781-782 & fn. 4.) Thus, contrary to PERB and Union’s arguments, Voters does not support the conclusion that the MMBA preempts, or superimposes procedural restrictions on, the right of citizens to invoke the initiative process to legislate on compensation issues for the employees of a charter city.

Conclusion We conclude, in light of the language of the MMBA and the “clear distinction between voter-sponsored and city-council-generated initiatives” (Friends of Sierra Madre, supra, 25 Cal.4th at p. 189), a city has no obligation under the MMBA to meet and confer before placing a duly qualified citizen-sponsored initiative on the ballot because such an initiative does not involve a proposal by the “governing body” nor could produce an agreement regarding such an initiative that the public agency is authorized to make. C.

PERB’s Determination That City Was Obligated by the MMBA to Meet and Confer Before Placing the CPRI on the Ballot Is Erroneous PERB concluded City owed, but failed to discharge, the meet-and-confer obligations imposed by the MMBA on governing bodies by placing the CPRI on the ballot without hrst meeting and conferring with Unions.

We have already concluded, contrary to PERB’s apparent opposing conclusion, a governing body has no obligation to meet and confer before placing a duly qualified citizen-sponsored initiative on the ballot, but does have meet-and-confer obligations before placing on the ballot a proposal adopted by the governing body that falls within the parameters of sections 3504.5 and 3505.

We thus turn to the critical question: whether PERB correctly held the CPRI was not a duly qualified citizen-sponsored initiative exempted from the meet-and-confer requirements, but was instead a governing-body-sponsored ballot proposal within the ambit of Seal Beach and the meet-and-confer obligations the MMBA imposes on actions that conshtute a “determination of policy” (§ 3505) that have been “proposed [for] adoption] by the governing body” (§ 3504.5, subd. (a)) within the meaning of the MMBA.

We begin by noting the evidence was undisputed (and PERB did not conclude to the contrary) the charter amendment embodied in the CPRI was placed on the ballot because it qualified for the ballot under the “citizens’ initiative” procedures for charter amendments as provided by the hrst clause of

article XI,

section 3, subdivision (b), of the California Conshtuhon (which provides that a charter amendment “may be proposed by initiahve or by the governing body”) and the governing provisions of Elections Code 9200 et seq. We also note there was no evidence, and PERB did not find, that the charter amendment embodied in the CPRI was placed on the ballot because it qualified as a ballot measure sponsored or proposed by the governing body of City under the second clause of

article XI,

section 3, subdivision (b), of the California Constitution. (See generally Hernandez v.

County of Los Angeles (2008) 167 Cal.App.4th 12, 21 [84 Cal.Rptr.3d 10] [stating ‘“[u]nder the California Conshtuhon there are only two methods for proposing an amendment to a city charter: (1) an initiative qualified for the ballot through signed voter petitions; or (2) a ballot measure sponsored by the governing body of the city,” and noting differing standards applicable to each].) Accordingly, we evaluate whether PERB’s decision, which appears to rest on the theory that the participation by a few government officials and employees in drafting and campaigning for a citizen-sponsored initiative somehow converted the CPRI from a citizen-sponsored initiative into a governing-body-sponsored ballot proposal, is erroneous under applicable law.

We conclude PERB’s determination was error.

As a preliminary matter, we believe that, under Yamaha, supra, 19 Cal.4th 1, we must apply de novo review of PERB’s determination, rather than the more deferential standards of review advocated by PERB and Unions, because PERB’s determination turned almost entirely upon its application of the interplay among City’s charter provisions (and Sanders’s powers and responsibilities thereunder), common law principles of agency, and California’s constitutional and statutory provisions governing charter amendments, and did not turn upon resolution of material factual disputes (to which the deferential ‘“substantial evidence” standard would apply) or upon PERB’s application of legal principles of which PERB’s special expertise with the legal and regulatory milieu surrounding the disputed legal principles would warrant deference.

Accordingly, we accord no deference to PERB’s legal conclusions as to the constitutional or statutory scheme governing initiatives (Overstreet ex rel. NLRB v. United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, supra, 409 F.3d 1199, 1208-1209; Azusa Land Partners v. Department of Industrial Relations, supra, 191 Cal.App.4th at p. 14) or to PERB’s application of common law principles of agency over which PERB has no specialized expertise warranting deference. (Cf. Styrene Information & Research Center v.

Office of Environmental Health Hazard Assessment (2012) 210 Cal.App.4th 1082, 1100 [148 Cal.Rptr.3d 776] [no deference where agency in question has no particular interpretive advantage over the courts based on some expertise]; Sanchez v. Unemployment Ins.

Appeals Bd. (1984) 36 Cal.3d 575, 584-585 [205 Cal.Rptr. 501, 685 P.2d 61] [agency denied applicant unemployment benefits based on finding employee lacked “good cause” to leave employment; court reviewed lack of good cause finding de novo as issue of law].) It is clear that, apart from charter commission proposals (see generally §§ 34451-34458), California recognizes only two avenues by which a proposed city charter amendment may be placed before the electorate: an initiative that qualifies for the ballot through signed voter petitions, or a ballot proposal that qualifies for the ballot because the governing body (here, the City Council) adopts a resolution placing it on the ballot. (Hernandez v.

County of Los Angeles, supra, 167 Cal.App.4th at p. 21.) Whether PERB correctly concluded meet-and-confer obligations were triggered here rests on whether it properly recast the CPRI from the former into the latter. Because PERB employed several variants of agency theory to reformulate the CPRI from a citizen-sponsored proposal to a City Council-sponsored proposal, we examine PERB’s theories seriatim.

Statutory Agency PERB’s first theory, which it denominated as a statutory agency theory, focused on the fact that Sanders, both in his capacity as a so-called “strong mayor” and in his role as the lead negotiator for the City Council in labor-related matters, was empowered by the City Charter to recommend “measures and ordinances” that he believed to be “necessary or expedient” (San Diego City Charter, art. XV, § 265(b)(3)), including recommendations encompassed in his “State of the City” address (see id., art. XV, § 265(c)).

From these predicates, PERB deemed the activities of Sanders in aiding in the drafting of and campaign for the CPRI (both individually and insofar as additional actions were undertaken by the staff of his mayoral office at his direction) to have been the actions of the City Council because he was the “statutory agent” for the City Council in labor-related matters. Under this theory, PERB appeared to rule that (1) the CPRI was sufficiently interwoven with Sanders’s proposal such that the CPRI was as much Sanders’s proposal as it was Proponents’ proposal, and

(2) Sanders was statutorily empowered to act on behalf of (and to make proposals on labor-related matters for) the City Council in labor-related matters, and therefore the CPRI became a City Council-sponsored (or at least cosponsored) proposal carrying meet-and-confer obligations within the meaning of Seal Beach. We conclude reliance on this theory was error because it ignores fundamental principles governing the charter amendment process and the conduct of municipal affairs.

First, a charter amendment measure only becomes a “proposal” if it qualifies for the ballot under the citizen-sponsored-proposal provisions (for which no meet-and-confer obligation exists) or qualifies for the ballot as a governing-body-sponsored ballot measure (which would trigger meet-and-confer obligations) under

section 34458 et seq. PERB’s statutory agency theory essentially deemed Sanders’s actions to have been those of the City Council, thereby treating the CPRI as a governing-body-sponsored ballot measure, even though the City Charter specifically provides all legislative powers of City are vested in the City Council (San Diego City Charter, art. Ill, § 11) as City’s legislative body (id., art. XV, § 270(a)), and provides such legislative power may not be delegated (id., art. III, § 11.1) but must be exercised by a majority vote of the elected council members. (Id., art III, § 15; see id., art.

XV, § 270(c).) PERB cites no law suggesting Sanders was in fact (or even could have been) statutorily delegated the power to place a City Council-sponsored ballot proposal on the ballot without submitting it to (and obtaining approval from) the City Council (Kugler, supra, 69 Cal.2d at p. 375 [legislative power may not be delegated]; City of Redwood City v. Moore (1965) 231 Cal.App.2d 563, 575-576 [42 Cal.Rptr. 72], disapproved on other grounds in Bishop v.

City of San Jose (1969) 1 Cal.3d 56, 63, fn. 6 [81 Cal.Rptr. 465, 460 P.2d 137] [recognizing “the general principle that the public powers or trusts devolved by law or charter upon a governing body cannot be delegated to others”]), and because there was no evidence suggesting Sanders sought or obtained such approval, PERB erred in concluding Sanders’s actions in supporting the CPRI were in fact acts creating a City Council-sponsored ballot proposal. (Cf. First Street Plaza Partners v.

City of Los Angeles (1998) 65 Cal.App.4th 650, 667 [76 Cal.Rptr.2d 626] [where city charter prescribes procedures for taking binding action, those requirements may not be deemed satisfied by implication from use of procedures different from those specified in charter]; Dynamic Ind. Co. v.

City of Long Beach (1958) 159 Cal.App.2d 294, 299 [323 P.2d 768] [“When the charter provision has not been complied with, the city may not be held liable in quasi contract, and it will not be estopped to deny the validity of the contract”].) PERB nevertheless argues its agency theory was correct because employers (including governmental entities) can be held liable for unfair labor practices committed by their agent even when the agent’s actions were not formally approved by the governing body.

PERB also asserts its agency theory is supported by a 2008 opinion by a former City Attorney (the Aguirre Memo) that concluded, if the mayor “initiate[d] or sponsor[ed]” a voter petition drive to place a measure on the ballot to amend the City Charter provisions related to retirement pensions, City “would have the same meet-and-confer obligations with its unions over a voter-initiative sponsored by the Mayor as with any City proposal implicating wages, hours, or other terms and conditions of employment.” We are unconvinced the Aguirre Memo undermines our analysis, for several reasons.

First, a later opinion from the City Attorney rejected the conclusions of the Aguirre Memo, which it described as “overly broad and incomplete in its analysis,” and explained why the City Attorney believed the conclusions reached by the Aguirre Memo were unsound.

Second, PERB cites nothing to suggest the opinions expressed in the Aguirre Memo are somehow binding on City, much less that such opinions are entitled to any deference by this court. (Yamaha, supra, 19 Cal.4th 1, 11 [“an agency’s legal-opinion, however ‘expert,’ . . . commands a commensurably lesser degree of judicial deference”].) Because the Aguirre Memo reached its conclusions without considering (or even mentioning) the limiting language of

section 3504.5, which triggers meet-and-confer obligations only as to “any ordinance, rule, resolution, or regulation . . . proposed to be adopted by the governing body,” its conclusion that meet-and-confer obligations exist for a mayoral-initiated voter petition drive (which appears to have rested on the erroneous assumption that a measure supported by the mayor is equivalent to a measure proposed to be adopted by the governing body) is unpersuasive. (§ 3504.5, subd. (a), italics added.) We are equally unpersuaded that the cases cited by PERB that upheld unfair labor practices claims against governmental entities for conduct by their agents even when the agent’s actions were undertaken without approval by the governing body have any relevance here.

In the cases relied on by PERB, the agents’ unapproved actions involved statements or actions by the agents that are declared to be unfair labor practices without the necessity of any predicate involvement by the governing body. Specifically, the unapproved actions interfered with, restrained, or coerced the employees in violation of

section 3506, part of the MMBA (see Public Employees Assn. v. Board of Supervisors (1985) 167 Cal.App.3d 797, 806-807 [213 Cal.Rptr. 491] [“section 3506 is patterned closely after

section 8(a)(1) of the NLRA [citation] [,] which provides it is an unfair labor practice for an employer to ‘interfere with, restrain, or coerce’ employees in the exercise of rights to ‘bargain collectively’ ”]) or in violation of

section 3543.5, subdivision (a). However, both of those sections are distinct from

section 3504.5, because both of those sections condemn specified conduct as unlawful labor practices, regardless of whether that specified conduct was accompanied by actions of the governing body. In contrast, the unlawful labor practice condemned by

section 3504.5—the failure to meet and confer—is condemned only if preceded by specified conduct or actions of the governing body, i.e., when there is an “ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body.” (Id., subd. (a).) Because

section 3504.5 requires predicate action by “the governing body” before the meet-and-confer obligations of

section 3505 can be triggered, cases addressing statutes that do not contemplate similar predicate action by a governing body have no persuasive value on the issues presented by the present action. For all of these reasons, we agree with City that PERB erred in applying “statutory agency” principles to find the CPRI was a de facto governing-body-sponsored ballot proposal that could have triggered meet-and-confer obligations within the contemplation of

section 3504.5. Common Law Agency: Actual Authority PERB’s second set of theories, which it denominated as a common law agency theory, focused on the common law doctrine of when a principal can be charged with the acts of its agent. PERB’s articulated rationale for attributing Sanders’s support of the CPRI (as putative agent) to the City Council (as putative principal) under “actual authority” principles was that actual authority is the authority a principal either intentionally confers on the agent or “by want of ordinary care” allows the agent to believe himself to possess (Civ.

Code, § 2316), and a principal is responsible to third parties for the wrongful acts of an agent in transacting the principal’s business regardless of whether the acts were authorized or ratified by the principal. (Civ. Code, §§ 2330, 2338.) Under this theory, PERB noted

(1) Sanders had broad authority as mayor to recommend legislation to the City Council, (2) he pursued pension reform as a goal for his remaining tenure as mayor and for the announced purpose of improving City’s financial well-being, and (3) the City Council was aware of Sanders’s desire for pension reform and of his efforts to implement it through a citizen-sponsored initiative.

From these facts, PERB concluded Sanders’s actions could be charged to the City Council because “by want of ordinary care, the City Council allowed Sanders to believe that he could pursue a citizens’ initiative to alter employee pension benefits, and that no conflict existed between his duties as the City’s chief executive officer and spokesperson for collective bargaining and his rights as a private citizen. . . .

Sanders acted with actual authority because proposing necessary legislation and negotiating pension benefits with the Unions were within the scope of the Mayor’s authority and because the City acquiesced to his public promotion of the initiative, [and] by placing the measure on the ballot, . . . while accepting the considerable financial benefits resulting from the passage and implementation of [the CPRI].” (Fn. omitted.) We conclude PERB’s use of a common law agency theory, which PERB appears to have used in order to find Sanders’s actions are to be charged to or deemed the acts of the City Council, is erroneous. “Actual” authority is (1) the authority the principal intentionally gives the agent, or (2) the authority the principal intentionally or negligently allows the agent to believe he possesses. (Civ.

Code, § 2316.) There is no evidence the City Council actually authorized Sanders to act on its behalf to formulate and campaign for the CPRI, nor any evidence Sanders believed he was acting or had the authority to act on behalf of the City Council when he took those actions. PERB’s “Apparent Agency” Theory PERB’s decision also relied on common law agency principles of “apparent authority” to support charging the City Council (as putative principal) with the acts of Sanders (as putative agent) in promulgating and supporting the CPRI.

PERB’s articulated rationale for attributing Sanders’s support of the CPRI to the City Council under “apparent” authority principles was that the City Council intentionally or negligently caused or allowed the employees to reasonably believe Sanders was acting on behalf of the City Council in promulgating and supporting the CPRI within the meaning of the apparent authority principles codified in Civil Code

section 2317. PERB, although acknowledging that Inglewood, supra, 227 Cal.App.3d 767 required the party asserting an agency relationship by way of apparent authority to satisfy the burden of proving the elements of that theory (id, at p. 780) and that “[m]ere surmise as to the authority of an agent is insufficient to impose liability on the principal” (id. at p. 782), concluded Inglewood's test was satisfied.

PERB reasoned that, because employees knew Sanders was an elected official and City’s chief executive officer, and knew Sanders touted the CPRI as a measure that was in the best interests of City, employees “would reasonably conclude[] that the City Council had authorized or permitted [Sanders] to pursue his campaign for pension reform to avoid meeting and conferring with employee labor representatives.” We conclude PERB’s “apparent agency” rationale is erroneous, for several reasons.

First, apparent agency focuses on whether the principal (either intentionally or by want of ordinary care) caused or allowed a third person to believe the agent possessed authority to act on behalf of the principal (Civ. Code, § 2317), and therefore must be established through the conduct of the principal and cannot be created merely by a purported agent’s conduct or representations. (Mosesian v. Bagdasarian (1968) 260 Cal.App.2d 361, 367 [67 Cal.Rptr. 369]; Young v.

Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1132 [163 Cal.Rptr.3d 704].) Thus, even assuming apparent agency could be applied to permit Sanders’s actions to somehow “bind” the City Council into being a cosponsor of the CPRI, PERB’s decision (and PERB’s and Unions’ briefs on appeal) cite only the actions of Sanders and his staff as the evidentiary foundation for application of “apparent” agency theory.

Neither PERB’s decision nor PERB’s and Unions’ briefs on appeal cite any evidence that the putative principal (the City Council) affirmatively did or said anything that could have caused or allowed a reasonable employee to believe Sanders had been authorized to act on behalf of the City Council in promoting the CPRI, which undermines PERB’s “apparent” agency theory. PERB’s “apparent” agency theory in the present decision eschewed any reliance on affirmative manifestations by the City Council affirming Sanders’s support for the CPRI was on its behalf.

Instead, PERB relied solely on the fact that Sanders supported the CPRI while occupying an office the responsibilities of which included acting for the City Council as the labor relations point man and recommending measures on labor issues to the City Council, and based thereon concluded Sanders had apparent or actual discretionary authority to promote the CPRI on behalf of the City Council, and therefore the City Council can be charged with liability for Sanders’s failure to meet and confer over the CPRI.

We recognize that “apparent” agency, like a respondeat superior theory (see Inglewood, supra, 227 Cal.App.3d at p. 779 [noting courts do not always distinguish between ostensible agency theory and tort doctrine of respondeat superior]), permits a third party to hold a principal liable for the wrongful conduct of his agent within the scope of his authority even where the agent was not operating with the express authorization of his principal when engaging in that conduct. (See generally Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1137-1139 [110 Cal.Rptr.2d 45]; J.L. v.

Children ’s Institute, Inc. (2009) 111 Cal.App.4th 388, 403 [99 Cal.Rptr.3d 5] [noting ostensible agency principles can be used to hold principal vicariously liable for agent’s acts].) In the field of labor relations, some cases decided under the Agricultural Labor Relations Act of 1975 (ALRA; Lab. Code, § 1140) have upheld imposing liability on an employer for

an act by an agent that constituted an unfair labor practice, even when such act was not expressly authorized by the employer, as long as such act was within the scope of the agent’s duties. (See Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307 [172 Cal.Rptr. 720, 625 P.2d 263]; Superior Farming Co. v.

Agricultural Labor Relations Bd. (1984) 151 Cal.App.3d 100 [198 Cal.Rptr. 608].) However, decisions under the ALRA provide little guidance because “under the ALRA, application of the NLRA standard is statutorily mandated” (Inglewood, supra, 227 Cal.App.3d at p. 778), and those standards are not premised on common law principles (id. at pp. 776-777; accord, Superior Farming Co., at p. 118 [“employer responsibility for acts of agents or quasi-agents ... is not governed by common law agency principles”]; see also fn. 49, ante), nor have PERB or Unions demonstrated there are sufficient parallels between the relevant provisions of the MMBA and the ALRA to permit cases decided under the latter scheme to provide persuasive guidance under the distinct scheme of the MMBA.

More importantly, affixing vicarious liability upon a principal under common law agency principles, regardless of whether the principal authorized the explicit conduct at issue, appears to presuppose the agent committed a wrongful act ab initio. (Cf. Bayuk v. Edson (1965) 236 Cal.App.2d 309, 320 [46 Cal.Rptr. 49].) This theory may well justify charging a principal with liability for an agent’s acts that are inherently wrongful and injurious, such as the act committed by the agent in Vista Verde Farms v.

Agricultural Labor Relations Bd., supra, 29 Cal.3d at pp. 317-318 (in which the court noted the agent’s acts violated Lab. Code, § 1153 and “would unquestionably constitute an unfair labor practice under [citation] if engaged in directly by the employer”), regardless of whether the principal authorized those acts. However, the act alleged here—an individual’s advocacy for a citizen-sponsored initiative effecting employee benefits—is not an inherently wrongful act, nor are we persuaded the MMBA explicitly proscribes such conduct merely because that individual occupies public office.

Instead, the MMBA only requires compliance with the meet-and-confer mandate of

section 3504.5 when there is some action “proposed to be adopted by the governing body” (id., subd. (a)), and has no apparent applicability when the “governing body” is not affirmatively involved with the proposal. We conclude PERB’s reliance on common law principles of “apparent” agency or respondeat superior, in order to charge the City Council (as putative principal) with the acts of Sanders (as putative agent) in promulgating and supporting the CPRI despite the absence of any evidence the City Council actually authorized these acts, is without legal support and was erroneous.

PERB’s “Ratification” Theory PERB’s decision also relied on common law principles of “ratification” to support charging the City Council (as putative principal) with the acts of Sanders (as putative agent) in promulgating and supporting the CPRI. As articulated by PERB, the City Council adopted Sanders’s actions in promulgating and supporting the CPRI as their own measure because “An agency relationship may also be established by adoption or subsequent ratification of the acts of another. (Civ.

Code, §§ 2307, 2310.) It is well established as a principal of labor law that where a party ratifies the conduct of another, the party adopting such conduct also accepts responsibility for any unfair practices implicated by that conduct. [Citing Compton Unified School Dish

(2003) PERB Decision No. 1518E at page 5 and Dowd v. International Longshoremen ’s Assn., AFL-CIO (11th Cir. 1992) 975 F.2d 779, 785-786.] Thus, ratification may impose liability for the acts of employees or representatives, even when the principal is not at fault and takes no active

part in those acts. [Citation.] Ratification may be express or implied, and an implied ratification may be found if an employer fails to investigate or respond to allegations of wrongdoing by its employee.” PERB’s decision, noting it was adequately shown the City Council had actual or constructive knowledge of Sanders’s actions in support of the CPRI, relied on two grounds for applying “ratification” to convert Sanders’s support for the citizen-sponsored CPRI initiative into City Council support for that initiative: the City Council’s inaction (because it was aware of Sanders’s support but did not disavow or repudiate his conduct), and the City Council’s actions in placing the CPRI on the ballot while rejecting Unions’ “meet-and-confer” demands and accepting the financial benefits accruing from its passage.

We conclude none of these grounds support PERB’s determination that the City Council can be deemed to have promulgated or supported the CPRI under ratification principles. The first basis for PERB’s ratification theory appears to be that the City Council did not disavow or repudiate Sanders’s conduct. Although the failure to repudiate otherwise wrongful conduct can warrant charging a putative principal with responsibility for any unfair practices implicated by that conduct, as was the case in Compton Unified School Dist., supra, PERB Decision No. 1518E [27 PERC ¶ 56] and Dowd v.

International Longshoremen ’s Assn., AFL-CIO, supra, 975 F.2d 779, this presupposes the issue to be determined: whether Sanders’s conduct was an unfair labor practice. (See fn. 50, ante.) We are aware of no law holding that an elected official’s support (however vigorous) for a citizen-sponsored ballot measure impacting a subject otherwise negotiable under the MMBA violates the meet-and-confer provisions (or any other provision) of the MMBA, and we are convinced Sanders was entitled to support the CPRI (either as an individual or through capitalizing on his office’s bully pulpit) because he was not supporting the proposal as the “governing body,” which is the only entity constrained by the meet-and-confer obligations under the MMBA.

Moreover, reliance on the City Council’s inaction is incompatible with other common law principles of ratification, which recognize that “ ‘ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified . . . .’ (Civ. Code, § 2310.) Thus, where the equal dignities rule applies, it requires formal, written ratification.” (van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571 [6 Cal.Rptr.3d 746]; accord, John Paul Lumber Co. v.

Agnew (1954) 125 Cal.App.2d 613, 622 [270 P.2d 1044] [corporation’s ratification of alleged agent’s unauthorized sale of its property can only be effected through a resolution of its board of directors when duly assembled].) Accordingly, absent a majority vote of the elected council members (City Charter, art. III, § 15; see id., art. XV, § 270(c)), it is improper to find that Sanders’s support for a citizen-sponsored initiative could convert the CPRI into a City Council-sponsored ballot proposal under ratification principles. (Kugler, supra, 69 Cal.2d at p. 375; First Street Plaza Partners v.

City of Los Angeles, supra, 65 Cal.App.4th at p. 667 [where city charter prescribes procedures for taking binding action, those requirements may not be satisfied by

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