California Supreme Court Halts the Appeals Board's Practice of Extending Its Own Reconsideration Deadline

A significant win for California public safety employees and the unions that represent them

By Mastagni Holstedt, APC Partner David E. Mastagni and Senior Associate Jonathan D. Char

The California Supreme Court has delivered a decision that strengthens the finality of workers' compensation awards for the firefighters, peace officers, and other public safety employees who depend on them. In Mayor v. Workers' Compensation Appeals Board, the Court held that the Workers' Compensation Appeals Board may not extend its own statutory deadline of sixty days to act on a petition for reconsideration, and it made clear that the Board's administrative delays cannot excuse that failure. Mayor v. Workers' Comp. Appeals Bd., No. S287261, 2026 WL 2470051 (Cal. Aug. 24, 2026) Public safety unions should welcome this ruling because it protects an injured member's hard-won award from administrative irregularity and from the Board’s own neglect and system systemic failure.

The dispute arose from an all-too-familiar pattern. Joseph Mayor suffered an industrial injury while working for the Ross Valley Sanitation District, and a workers' compensation judge found him permanently and totally disabled. The employer filed a timely petition for reconsideration, yet the petition never reached the Board within the 60-day window because the workers' compensation judge never acted on or transmitted it for reasons the record does not explain, and the Board did not grant reconsideration until roughly 144 days after the petition was filed. The Board justified this lengthy delay by invoking Shipley v. Workers' Compensation Appeals Board, and by asserting that an administrative irregularity had prevented it from receiving the petition on time. The Court rejected that justification and restored the certainty that the governing statute demands.

At the heart of the decision lies Labor Code section 5909. In the version that governed Mayor, a petition for reconsideration was deemed denied unless the Board acted within sixty days of filing. The Legislature has since amended the statute so that the sixty days now runs from the date the trial judge transmits the case to the Board. The Court agreed that this deadline is mandatory and that the Board possesses no authority to toll its own time to act. The Court explained that equitable tolling exists to allow litigants to pursue claims despite certain equitable circumstances, and it does not exist to rescue an agency from its own missed deadline. The Court further reasoned that the statute serves the essential purpose of ensuring that petitions do not languish, and it concluded that permitting the Board to toll the deadline because of its own inefficiency or neglect would defeat that purpose entirely. When the Board acts after the sixty-day period expires, it acts in excess of its jurisdiction, even though it does not lose fundamental jurisdiction over the matter.

The Court reserved particular scrutiny for the Board's habitual reliance on Shipley. It disapproved Shipley to the extent that the decision implied that every party enjoys a due process right to Board review of a petition after the sixty-day deadline has passed. The Court recognized that narrow circumstances may exist in which due process permits the Board to act late, yet it emphasized that the Board had transformed Shipley into a routine workaround for a recurring and systemic failure to receive petitions on time. The Court did not catalog those narrow circumstances, but it made clear where the floor lies. In footnote 7, it explained that "[m]ore is required to establish a due process violation resulting from the failure to timely rule on a petition for reconsideration than the simple filing of a reconsideration petition and the expiration of the statutory deadline to act." That systemic breakdown, the Court held, cannot justify a self-administered remedy that allows the Board to toll its own statutory deadline whenever it falls behind. This portion of the opinion forecloses the very rationale that agencies have used to keep contested awards open indefinitely. That said, Mayor does not eliminate every avenue for prolonging a case. Its holding reaches only untimely Board action, meaning action taken after the statutory deadline has run. If the Board acts within the sixty-day window, it may still grant reconsideration, including a grant for further study, and that timely order keeps the award from becoming final while reconsideration proceedings continue. Because no statutory clock comparable to section 5909 governs how long the Board may then take to issue its decision after reconsideration, a timely grant can leave an award unresolved for a substantial period. What Mayor forecloses is the Board's use of its own delay to manufacture more time after the deadline has already passed.

The practical value of this decision for unions and their members becomes clear when one considers what open ended delay actually costs an injured worker. Mayor won an award of total and permanent disability, yet he received no compensation for years while the reconsideration dispute remained unresolved, and the Court expressly noted that the Board's practice of tolling its own deadline opens the door to open ended extensions. A firefighter who suffers a career ending injury cannot afford to wait while an agency sits on a petition, and this ruling ensures that the statutory clock means what it says. By insisting on finality, the Court protects the reasonable expectation of every public safety employee that a favorable award will become enforceable on a predictable timeline. That predictability cuts both ways. The same sixty-day rule that finalizes a favorable award also runs against an injured worker whose own petition for reconsideration is deemed denied when the Board fails to act in time. In that situation, the worker cannot wait on the Board. Once the petition is denied by operation of law, the member’s only route is a timely petition for writ of review in the Court of Appeal, and that petition must be filed within forty-five days.

The decision provides tools to enforce the deadline rather than wait indefinitely for the Board to act. The Court confirmed that a petition for writ of mandate filed in the Court of Appeal is the proper mechanism for an affected party to compel the Board to honor section 5909. A union member who prevailed before the workers' compensation judge and who watches the Board blow past the statutory window now has a clear judicial path to protect the award. This remedy transforms the sixty-day deadline from an aspiration into an enforceable command, and it places meaningful leverage in the hands of the employees and advocates who invoke it. Which remedy applies depends on what the Board does once the sixty days run. If the Board simply fails to act and the petition is denied by operation of law, the adversely affected party must move quickly, because that finality holds unless the party timely seeks review. In that situation, the remedy is a petition for writ of review in the Court of Appeal, and it must be filed within forty-five days of the deemed denial. If instead the Board acts after the deadline has passed, the remedy is different. There, the party affected by the untimely order enforces the deadline through a petition for writ of mandate, which the Court held is the proper way to compel the Board to honor section 5909. Either way, the sixty-day deadline operates as a firm limit on the Board's power, but it protects only the party who tracks the deadlines and seeks the correct writ in time.

Mayor is a reaffirmation that the workers' compensation system exists to deliver substantial justice expeditiously rather than to accommodate bureaucratic delay. Although the Legislature has since modified the statute so that the sixty-day period begins when the trial judge transmits the case to the Board, the principle that administrative problems must not leave injured workers and their benefits in legal limbo endures. Firefighters and peace officers accept extraordinary risks in the service of their communities, and this decision recognizes that the compensation they earn will not remain hostage to an agency's own missed deadlines.

California Supreme Court Clarifies Declaratory Relief Under the CPRA and Rejects an Implied Three-Year Retention Duty Under the CPRA

On January 15, 2026, the California Supreme Court issued its decision in City of Gilroy v. Superior Court, 19 Cal. 5th 38 (2026). Writing for a unanimous Court, Chief Justice Guerrero resolved two questions of first impression under the California Public Records Act, Cal. Gov’t Code § 7920.000 et seq. The Court considered whether declaratory relief remains available after an agency has produced all existing responsive and nonexempt records, and whether the Act itself imposes a three year retention obligation once an agency asserts a statutory exemption. The decision carries practical significance for every public safety agency that regularly receives requests for body worn camera footage and related enforcement records.

Background

The dispute arose from successive requests that the Law Foundation of Silicon Valley submitted to the City of Gilroy beginning in 2018. Those requests sought, among other materials, Gilroy Police Department body worn camera recordings related to homeless encampment cleanups. The City asserted that the footage fell within a statutory exemption, conducted a search that the trial court later found inadequate, and destroyed certain recordings under its ordinary retention schedule while the requests remained pending. After the City produced the nonexempt footage still in its possession, the Law Foundation sought both mandamus and declaratory relief. The superior court granted limited declaratory relief concerning the City’s search practices and exemption assertions, yet determined that the Act created no independent retention duty. The Court of Appeal then held that declaratory relief became unavailable once the City had disclosed all remaining nonexempt records and that the Act imposes no three-year preservation requirement. 

Holdings

The Supreme Court reversed in part and remanded for further proceedings, holding that Cal. Gov’t Code § 7923.000 authorizes declaratory relief in at least some circumstances even after disclosure of all existing responsive and nonexempt records. The statutory command that a court may enforce a requester’s right to inspect or receive public records does not confine that enforcement power to contemporaneous production orders. Declaratory relief remains proper where a declaration would resolve an ongoing controversy concerning the parties’ rights and obligations under the Act in a manner that has some likelihood of affecting future records requests or future agency conduct. The trial court’s declarations addressing the City’s inadequate search and its blanket assertion of exemption without review of the body camera footage met that standard, and those declarations therefore survive the subsequent production of remaining records. 

On the retention question the Court reached the opposite result and affirmed the Court of Appeal. It rejected the argument that the Act imposes a three year retention period commencing from the moment an agency invokes a statutory exemption, because nothing in the text of the Act creates such a duty. The Court noted that the Legislature expressly enacted retention requirements for certain records in otehr statutes, including body worn camera data under Cal. Penal Code § 832.18, yet did not include retnetion requirements in the CPRA. Inferring a broad preservation obligation from the availability of judicial review or from the constitutional policy favoring access would rewrite a detailed statute to add a requirement the Legislature did not address. The Court limited the opinion to the ordinary operation of routine retention schedules, leaving open questions that might arise from intentional destruction undertaken for improper purposes. 

Take-Aways

Agencies cannot assume that production of remaining records will automatically moot claims for declaratory relief concerning search adequacy, the propriety of exemption claims, or compliance with response timelines. A declaration that an agency failed to conduct a reasonable search or improperly asserted a categorical exemption without segregating nonexempt material may still issue and may support an award of attorney fees under section 7923.115 if the requester is deemed to have prevailed. Departments that receive recurring requests for body-worn camera footage of enforcement activity therefore have a continuing incentive to document search efforts carefully, review footage before asserting exemptions, and provide specific rather than boilerplate justifications for withholding.

On the other hand, the rejection of an implied three-year hold provides agencies a significant win. The Act does not require public safety agencies to freeze every record once an official claims an exemption. Retention continues to turn on the agency’s adopted schedules and on any specialized statutes that govern particular media, including body worn camera recordings. Agencies should implement litigation holds when they reasonably anticipate litigation, as they already must under generally applicable preservation duties. The Act, however, does not convert every exemption claim into a three year preservation mandate of its own force.

Justice Groban filed a concurrence, which Justices Corrigan and Kruger joined, that supplies a useful limiting principle. In his view the Act does not authorize declaratory relief solely to pronounce that an agency’s past conduct violated the statute where the requester offers no evidence of a pattern or practice of violations and where the agency does not dispute its legal obligations. Broader use of the remedy, he warned, could incentivize requests pursued principally for fee recovery and could discourage agencies from reconsidering initial withholding decisions. That guidance should help courts and agencies distinguish controversies capable of guiding future conduct from isolated or technical disputes that warrant no declaration.

Conclusion

City of Gilroy therefore confirms that the Act remains a potent instrument for enforcing transparency while making equally plain that the statute is not a general records retention code. In light of the Court’s willingness to declare past practices unlawful even after production is complete, agencies will likely examine existing search protocols and exemption procedures now rather than await the next recurring request.  

The Supreme Court Says Cannabis Use Alone Cannot Disarm You. What Does that Mean for California Cops?

California peace officers now stand at the intersection of two bodies of law that pull in opposite directions. State law shields their right to use cannabis when they are not on duty, while federal law forbids anyone who uses cannabis from possessing the very firearm that their profession demands. The Supreme Court has just unsettled the federal side of that equation in United States v. Hemani, and its decision invites a fresh look at whether an officer who lawfully uses cannabis away from work may still be denied the badge and the gun. United States v. Hemani, 146 S. Ct. 1677 (2026) The answer is not yet clear, and the competing arguments deserve careful attention.

The Legislature spoke plainly when it enacted Assembly Bill 2188 and Senate Bill 700, which amended Government Code section 12954 and took effect on January 1, 2024. That statute makes it an unlawful employment practice for an employer to penalize a worker for using cannabis off the job and away from the workplace, and it forbids reliance on a drug test that detects only the nonpsychoactive cannabis metabolites that linger in the body long after any effect has passed. Gov Code § 12954. The Legislature exempted only employees in the building and construction trades, and it said nothing at all about peace officers. Because the Legislature expressly excluded one occupation and left every other unmentioned, officers possess a legitimate argument that the omission of their profession was deliberate and that the new protection reaches them. The statute therefore begins from a position that appears to favor the officer who uses cannabis on personal time.

That favorable starting point gives way, however, to several exemptions that may prove decisive for law enforcement. Section 12954 does not permit an employee to use or to be impaired by cannabis on the job, it preserves an employer's authority to maintain a drug free workplace, and it expressly leaves intact any other rights or obligations that state or federal law places on the employer. The statute also declines to preempt any state or federal law that requires controlled substance testing as a condition of employment, and it removes from its protection any position that requires a federal government background investigation or security clearance. The difficulty is that the ordinary municipal or county officer completes a state background investigation for good moral character under Government Code section 1031, not the federal investigation that the exemption describes, and Government Code section 1029 disqualifies only those convicted of a felony rather than those who use cannabis. Whether these provisions carve officers out of the statute or leave them comfortably within it remains genuinely uncertain.

The sharpest tension arises not from the employment statute but from the firearm that every sworn officer must carry. Federal law makes it unlawful for any person who is an unlawful user of a controlled substance to possess a firearm, and cannabis remains a Schedule I controlled substance under federal law no matter how completely California has legalized it. An officer who uses cannabis therefore appears, at least on the face of the statute, to be a person whom Congress has forbidden to hold a tool that the job requires. That same officer who buys a personal weapon must attest truthfully on the federal firearms transaction record that he is not an unlawful user of marijuana, and a false answer carries federal criminal exposure. The firearm requirement, far more than anything in the employment code, is what has long threatened to place cannabis-using officers outside the protection that Assembly Bill 2188 seems to promise.

For years the governing federal authority in California cut sharply against the officer. The Ninth Circuit in Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016) applied a two-step inquiry and intermediate scrutiny and upheld the federal restrictions that keep marijuana users, including the holders of a state medical marijuana card, from acquiring firearms. The court reasoned that these laws burden the Second Amendment only minimally and incidentally, and it concluded that the Constitution tolerates such modest collateral burdens. Wilson supplied a straightforward answer that a cannabis user could be kept from the firearm and therefore from the job. That answer, however, rested on the Ninth Circuit’s Second Amendment analysis that the Supreme Court has rejected.

The ground shifted when the Supreme Court decided New York State Rifle and Pistol Association v. Bruen and directed courts to measure firearm regulations against the Nation's historical tradition rather than against tiers of scrutiny. United States v. Hemani, 146 S. Ct. 1677 (2026), decided on June 18, 2026, applied that framework to the very statute at issue here. Ali Hemani used marijuana a few times a week, and the government sought to imprison and permanently disarm him on that basis alone, without any claim that he was an addict, that he was intoxicated while armed, or that he had ever posed a danger to anyone. The Court held that the prosecution could not stand, because the historical laws the government invoked, the old regimes that restrained habitual drunkards through vagrancy, civil commitment, and surety bonds, targeted persons whose intoxication left them incapacitated and operated only after some form of legal process. Section 922(g)(3), by contrast, automatically disarms any regular user of any controlled substance without proof of incapacity, intoxication, or dangerousness, and the Court concluded that this automatic and status driven ban does not fit within the Nation's historical tradition of firearm regulation. Applying the statute to Hemani on those facts therefore violated the Second Amendment.

The Court took evident care to confine its ruling. It did not decide whether Congress may disarm those who are addicted or presently intoxicated, it did not disturb the separate prohibition on firearm possession by convicted felons, and, most importantly for officers, it did not resolve whether the government may proceed under the statute when it offers individualized proof that a person's drug use renders him a danger to himself or others. The holding thus dismantles one categorical justification for disarming cannabis users while expressly preserving room for a narrower approach that rests on individualized findings.

Arguably, if the federal firearm ban cannot constitutionally reach a person merely because he uses cannabis, then an agency can no longer prohibit marijuana use based on the contention that such an officer is legally incapable of possessing their duty weapon. Under this argument, the exemptions from section 12954 may not apply, because they preserve only employer obligations that federal law genuinely imposes, and under Hemani federal law may not impose a firearm disability based on cannabis use alone. The earlier Ninth Circuit rule in Wilson, resting on a repudiated legal framework, looks increasingly invalid after Hemani. Thus, an officer disciplined solely because he or she uses cannabis may run afoul of the categorical prohibition that the Supreme Court has now rejected. Read together, Assembly Bill 2188 and Hemani suggest the officer may be protected from discipline.

However, the application of Assembly Bill 2188 to peace officers remains unclear. Hemani decided only an as applied challenge that turned on the complete absence of any individualized showing, and the Court pointedly left open a prosecution supported by individualized proof of dangerousness. An agency may contend that an officer who carries a loaded firearm in public every single day presents exactly the individualized safety concern that the Court declined to reach, so that the reasoning of Hemani may provide officers no shelter at all.

Section 12954 independently preserves the employer's right to maintain a drug free workplace and to honor any obligation that federal law and regulation impose, and Government Code section 1031 must be read and applied consistently with federal law. Cannabis also remains unlawful under federal law even where a prosecution under section 922(g)(3) would fail, and the officer who purchases a personal firearm still confronts the sworn federal form and the criminal exposure that a false answer invites. 18 U.S.C.A. § 922. Wilson, while legally suspect, remains binding in the Ninth Circuit until that appellate court or the Supreme Court squarely overrules it, and an agency may reasonably continue to rely upon it.  

The honest conclusion is that the law has not settled and that officers and their employers alike should proceed with caution. Hemani has weakened the categorical federal bar that once made this analysis simple, yet it has deliberately left open the individualized path to enforcement. More importantly, the California exemptions remain untested in any court.

Public safety unions should resist any suggestion that their members must surrender the protections that the Legislature extended, and they should insist that any adverse action rest on an individualized assessment of fitness and risk rather than on cannabis using status alone. Officers, for their part, should remember that cannabis remains unlawful under federal law and should weigh that stubborn reality before they place their careers in the hands of an unsettled disciplinary dispute. Until the Legislature or the courts clarify this issue, prudent officers should tread lightly regarding off-duty cannabis use. 

A Published Victory for Proportionality in California Highway Patrol v. California State Personnel Board

The California Court of Appeal has handed California peace officers a rare and valuable published decision holding that a single, isolated act of dishonesty does not compel termination and does not, by itself, brand an officer as unfit to serve. In California Highway Patrol v. California State Personnel Board, No. B336135 (Cal. Ct. App. July 29, 2026, ordered published Aug. 5, 2026), the Second Appellate District affirmed the State Personnel Board's decision reducing an officer's dismissal to a suspension, and it did so in an opinion that peace officers and the unions who represent them will cite for years to come. Mastagni Holstedt represented the officer, and the published result confirms a principle that agencies too often ignore. Not every act of dishonesty is the same, and the penalty must fit the misconduct and the officer who committed it.

The facts illustrate why proportionality matters. Officer Nathaniel Partridge joined the California Highway Patrol in 2006, compiled a record free of prior discipline, and earned excellent and proficient performance ratings that described him as conscientious, dependable, and ready for promotion. He worked overtime details under the Maintenance Zone Enhanced Enforcement Program, an arrangement through which the Department of Transportation reimbursed the Highway Patrol for enforcement services on highway maintenance projects. A local standard operating procedure required officers released early by Caltrans to remain at the East Los Angeles station for the balance of the scheduled shift. On September 17, 2017, after his detail ended early, Partridge went home rather than remaining at the station, yet he received the full scheduled overtime (roughly three hours and forty five minutes) pay. The agency also faulted him for failing to record the return time of his patrol vehicle on eight occasions over a six month period.

The State Personnel Board sustained a charge of dishonesty against Partridge, and it did not minimize his conduct. The Board held that theft of public funds and the falsification of official forms, even on a single occasion, constitute serious misconduct for a sworn peace officer. The Board nevertheless reversed his dismissal because the evidence established one isolated event rather than a pattern or a disposition to deceive. The Board contrasted Partridge with officers who had engaged in systematic overtime abuses and concluded that a single lapse by an officer with a long and unblemished career did not demonstrate a propensity to lie, cheat, or deceive. Applying the factors articulated in Skelly v. State Personnel Board, 15 Cal. 3d 194, 218 (1975), which direct the decision maker to weigh the harm to the public service, the circumstances surrounding the misconduct, and the likelihood of recurrence, the Board imposed a suspension that cost Partridge a full year of salary.

The Court of Appeal affirmed. A reviewing court may not substitute its own judgment for that of the administrative body on the question of penalty, and it will disturb the chosen discipline only in the exceptional case in which reasonable minds cannot differ. See Barber v. State Personnel Board, 18 Cal. 3d 395, 404 (1976). The Highway Patrol argued that dishonesty is a continuing trait of character and that any sustained finding of dishonesty therefore requires dismissal. The court rejected that categorical position and held that dismissal is not required in every case of dishonesty. See County of Siskiyou v. State Personnel Board, 188 Cal. App. 4th 1606, 1617 (2010). Reasonable minds could differ about the appropriate consequence for the officers' conduct, and the existence of that reasonable disagreement fortified rather than undermined the Board's exercise of discretion.

Most significant for officers facing discipline is the way the court distinguished degrees of dishonesty. The court confronted the authorities that agencies routinely invoke to demand termination and confined each of them to its facts. It explained that Kolender v. San Diego Civil Service Commission, 132 Cal. App. 4th 716, 721 (2005), described dishonesty as a continuing trait of character only in the context of an officer who lied to conceal the physical abuse of an inmate and refused to tell the truth until investigators exposed the falsehood. It viewed Cate v. State Personnel Board, 204 Cal. App. 4th 270 (2012), as a case in which dishonesty accompanied far more egregious misconduct, including the encouragement of a mentally ill patient to commit suicide, the intimidation of a witness, and an abuse of official power. Measured against that conduct, Partridge's isolated overtime claim occupied a different place on the spectrum, and the court refused to treat every falsehood as the equivalent of the aggravated dishonesty that had justified dismissal elsewhere. Degrees of dishonesty exist, and the law recognizes them.

The publication of this opinion carries independent importance. The published decisions in this area have generally sustained dismissals, and agencies have marshaled those cases to argue that any dishonesty finding ends an officer's career as a matter of law. A published opinion that affirms a proportional penalty for an isolated act of dishonesty now stands as citable precedent for the opposite and correct proposition. Officers and their representatives no longer need to rely on unpublished dispositions or on the bare language of Skelly. They can point to a binding appellate holding that an isolated lapse, committed by an officer whose integrity had never before been questioned, may warrant discipline short of termination. The decision restores balance to a body of law that had tilted heavily toward the agency.

The opinion also speaks to the decertification regime that now governs California peace officers. Senate Bill 2 empowered the Commission on Peace Officer Standards and Training to suspend or revoke the certification of an officer who engages in serious misconduct, and it defined serious misconduct to include dishonesty relating to the reporting, investigation, or prosecution of a crime or the investigation of officer misconduct. See Cal. Penal Code § 13510.8(b)(1). Nothing in that statute makes decertification automatic. The Commission possesses discretion, for the statute provides that it may suspend or revoke certification rather than that it must. See Cal. Penal Code § 13510.8(a)(2). The implementing regulation confirms that the analysis is individualized, for in deciding whether revocation is proper the Commission considers the extent to which the dishonesty related to a material or significant fact and whether the officer acted willfully and with the intent to deceive. See Cal. Code Regs. tit. 11, § 1205(a)(1). The Commission may recommend revocation only when serious misconduct is established by clear and convincing evidence. See Cal. Code Regs. tit. 11, § 1212(b)(2).

This case demonstrates that a sustained dishonesty charge should not trigger a presumption of decertification. The very factors that persuaded the State Personnel Board to impose a suspension rather than dismissal are the factors that the certification regulation directs the Commission to weigh. An isolated act, the absence of any pattern, the materiality and intent behind the conduct, and the officer's overall record all bear on whether the extraordinary sanction of decertification is warranted. An officer who commits a single lapse presents a fundamentally different case from an officer who lies repeatedly to conceal abuse or to defeat an investigation. Agencies and the Commission that read this opinion faithfully will understand that a dishonesty label, standing alone, does not resolve the proportionality question that both the disciplinary and the certification frameworks require them to answer.

Conclusion

For California public safety unions and their members, the practical lesson is clear and encouraging. When an agency seeks to terminate an officer for an isolated act of dishonesty, the decision maker should weigh the full circumstances, including the officer's career, the isolated character of the conduct, and the materiality and intent behind it. 

When an agency invokes Kolender or Cate to demand automatic dismissal, the officer may answer that those cases turned on aggravated misconduct far removed from an isolated error. And when the specter of decertification arises, the officer may remind the Commission that Senate Bill 2 and its regulations call for an individualized assessment rather than a reflexive revocation. 

The published opinion in California Highway Patrol v. California State Personnel Board gives officers and their advocates the authority to make each of these arguments with confidence. It affirms that fairness and proportionality remain the law, and that a single mistake need not end a career of honorable service.

Appellate Court Affirms Broad Make Whole Remedy for Violation of Duty to Engage in Effects Bargaining Over Pension Reciprocity

On July 30, 2026, the Court of Appeal for the Second Appellate District, Division Seven, issued an unpublished decision in City of Los Angeles v. American Federation of State, County and Municipal Employees, Nos. B336981 and B340065. The court affirmed the Los Angeles Employee Relations Board order requiring the City to engage in effects bargaining and to make whole Coalition represented employees who suffered reduced pension and other benefits after the City suspended reciprocity between the Los Angeles City Employees Retirement System and the Water and Power Employees Retirement Plan. Although the Employee Relations Board exercises jurisdiction limited to the City of Los Angeles, the Court of Appeal expressly construed the Meyers Milias Brown Act in reaching its conclusions. That construction carries significant weight for every public employer and exclusive representative subject to the Act statewide. The decision confirms that when a public employer implements a nonnegotiable change that foreseeably affects retirement benefits, it must still bargain the effects of that change, and that make whole relief for resulting pension losses remains an available and appropriate remedy under the Meyers Milias Brown Act.

Factual Background

Beginning in 1980 the City and the Department of Water and Power maintained a reciprocal arrangement that permitted employees transferring between the two systems to carry pension service credit. In 2010 the Water and Power Employees Retirement Plan Board voted to suspend reciprocity after determining that net transfers from City service into the Department of Water and Power increased the Plan unfunded liability by approximately one hundred eighty three million dollars. After litigation and settlement in Romero et al. v. City Council of the City of Los Angeles, the City Council in December 2013 adopted Ordinance No. 182824, effective January 1, 2014. The Ordinance ceased crediting prior Water and Power Employees Retirement Plan service for benefit calculation purposes under the Los Angeles City Employees Retirement System, although such service continued to count solely for eligibility to retire. The Coalition of City of Los Angeles Unions, which includes the American Federation of State, County and Municipal Employees and several other organizations representing Los Angeles City Employees Retirement System members, demanded bargaining. The City provided information but refused formal meet and confer obligations.

LA ERB Ruling

The Coalition filed unfair employee relations practice charges. After extensive hearings the Employee Relations Board concluded that the City possessed no duty to bargain the underlying decision to suspend reciprocity yet retained a clear duty to bargain the effects of that decision. Those effects included disability retirement calculations, retiree health subsidies, protected leave return rights, and transfer practices. The Board ordered the City to meet and confer in good faith over those subjects. It further ordered the City to make whole any Coalition represented employee who sustained losses, including reduced pension or other benefits, from January 1, 2014, until the parties reached agreement or impasse or the Coalition failed to bargain in good faith. The Board also directed the City to cease and desist from applying the post 2013 Administrative Code provisions governing treatment of Water and Power Employees Retirement Plan service until that bargaining obligation was satisfied.

Superior Court Ruling

The trial court denied the City petition for writ of mandate and granted the Coalition cross petition seeking enforcement. The court further awarded the Coalition attorney fees under Code of Civil Procedure section 1021.5. The City appealed both the judgment and the fee order. On appeal the City conceded its duty to engage in effects bargaining yet challenged only the remedy. It argued that the Employee Relations Board lacked statutory authority to order make whole relief, that the particular remedy failed to restore the status quo and conflicted with other provisions of law, that the order was vague and overbroad, that it violated separation of powers principles, and that the fee award was improper.

Court of Appeal Ruling

The Court of Appeal rejected each contention. It first held that Employee Relations Ordinance section 4.810, subdivision (f)(12), which authorizes the Board to perform such other duties as may be necessary to carry out its responsibilities, empowers the Board to award retroactive make whole relief. The court reasoned that local rules implementing the Meyers Milias Brown Act must remain consistent with the policies of that Act. Government Code section 3509, subdivision (d), expressly grants the Employee Relations Board power to issue determinations and orders it deems necessary consistent with and pursuant to the policies of the Meyers Milias Brown Act. The Public Employment Relations Board has long recognized that make whole relief serves the dual purposes of compensating employees for harm caused by an unfair practice and deterring future violations. Because the Employee Relations Board interpretation of its remedial authority was not clearly erroneous, the court deferred to it.

The court next confirmed that make whole relief constitutes an appropriate and customary remedy for effects bargaining violations. Effects bargaining stands on equal footing with decision bargaining. Both protect the principle of bilateralism that forms the centerpiece of the Meyers Milias Brown Act. The usual remedy directs the employer to bargain over effects and awards limited back pay, understood to encompass all forms of economic loss including reduced pension and medical benefits, until the parties reach agreement or impasse. The Employee Relations Board remedy in this case tracked that established framework. The make whole obligation terminated upon completion of the bargaining process. The court distinguished the earlier decision in American Federation of State, County and Municipal Employees v. City of Los Angeles, 109 Cal. App. 5th 179 (2025), which held that employees possessed no vested contractual right to continued reciprocity. Absence of a vested right does not eliminate the distinct statutory right under the Meyers Milias Brown Act to bargain the effects of terminating reciprocity and to receive interim relief that restores the parties as nearly as practicable to the position they occupied when the bargaining duty arose.

This distinction is critical for bargaining rights over pension changes. Public employers frequently retain the unilateral right to alter retirement plan design, contribution rates, or reciprocal arrangements so long as those changes do not impair vested contractual rights. The Court of Appeal made clear that the absence of a vested right does not extinguish the concurrent duty under the Meyers Milias Brown Act to meet and confer over the effects of such changes on represented employees. Pension calculations, service credit recognition, disability retirement eligibility, and retiree medical subsidies all fall within the scope of effects bargaining when a nonnegotiable decision foreseeably impacts them. The make whole remedy, which can include the difference between the pension benefits employees would have received and the benefits they actually received, remains available until the employer satisfies that bargaining obligation. Because the Court of Appeal grounded its analysis in the policies of the Meyers Milias Brown Act rather than in unique features of the Los Angeles Employee Relations Ordinance, the reasoning applies with equal force to every public agency and exclusive representative subject to the Act.

The court found no separation of powers violation. The remedy did not compel the City Council to enact or rescind legislation. It merely maintained the economic status quo on a temporary basis until the City satisfied its statutory bargaining obligation. Nor was the cease and desist directive vague or overbroad. The order identified the clear category of post 2013 Administrative Code provisions governing treatment of Water and Power Employees Retirement Plan service for employees moving into Los Angeles City Employees Retirement System covered positions. Read in light of the Board findings identifying the specific effects subjects, the order provided sufficient notice of the conduct enjoined.

Finally, the court upheld the attorney fee award under Code of Civil Procedure section 1021.5. The Coalition was the successful party because it achieved the core objectives of securing an effects bargaining order and make whole relief. The litigation enforced an important public right, namely compliance with the duty to bargain under the Meyers Milias Brown Act, and conferred a significant benefit on a large class of City employees and on other bargaining units that may confront similar unilateral changes. The Coalition is likewise entitled to its reasonable attorney fees and costs on appeal.

State-wide Impacts

Although the Employee Relations Board exercises jurisdiction only within the City of Los Angeles, a Court of Appeal decision that construes the Meyers Milias Brown Act itself benefits all public employee organizations operating under that statute. The Public Employment Relations Board and reviewing courts consistently look to appellate interpretations of the Act when resolving effects bargaining disputes. This decision reinforces that pension related impacts remain fully subject to effects bargaining even when the underlying decision to change a retirement system is nonnegotiable. It further confirms that make whole relief measured by the difference in pension benefits is an ordinary and available remedy designed both to compensate employees and to restore the parties to a more balanced bargaining position. Unions throughout California therefore gain a clearer statement of the rights their members hold when employers alter reciprocal service credit arrangements, contribution formulas, or related retirement features without first addressing the foreseeable effects.

Public employee unions and their members should take careful note of the temporal limits the court endorsed. Make whole relief is not permanent restoration of reciprocity. It functions as a temporary bridge that preserves bargaining leverage and compensates for delay caused by the employer unlawful refusal. Associations therefore should remember to request effects bargaining promptly when management announces nonnegotiable changes that will foreseeably affect retirement service credit, disability benefits, leave rights, or transfer opportunities. Failure to request bargaining or to bargain in good faith can terminate the make whole period. Conversely, employers that ignore the duty face the prospect of years of retroactive liability measured from the date employees first experience harm.

The Court of Appeal affirmed the judgment and the attorney fees orders. Although the opinion is not certified for publication, its careful synthesis of Employee Relations Board authority, Public Employment Relations Board remedial doctrine, and the policies of the Meyers Milias Brown Act will inform future disputes involving effects bargaining over pension and benefit changes throughout California. 

Conclusion

Where management retains unilateral authority to alter certain arrangements, associations should prepare written demands for effects bargaining and document the economic consequences that will flow from any suspension. The make whole remedy affirmed in this case supplies a potent tool for restoring balance when that duty is ignored.