EMPLOYER VIOLATION OF LOCAL RULE – In General

Single Topic for Decision 2958M

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San Francisco Charter section 10.104 states that certain City employees, including attorneys, “shall be exempt from competitive civil service selection, appointment and removal procedures,” and that “the person serving in the position shall serve at the pleasure of the appointing authority.” This provision exempts attorneys from the civil service merit system. However, job protection proposals are fully bargainable and eligible for interest arbitration under the City Charter. Serving “at the pleasure” of management has no single, uniform meaning, as it leaves open what protections management may adopt relative to the positions in question. Thus, while employees serving at the pleasure of management normally have no property interest giving rise to constitutional due process, they are fully able to avail themselves of job protections that may be in place by MOU or by any other lawful policy. (Bishop v. Wood (1976) 426 U.S. 341, 345 [employee who “held his position at the will and pleasure” of a local agency had “no right to continued employment,” but employee’s removal was conditioned on compliance with procedures set out in the local agency’s procedures]; Mervin v. Federal Trade Commission (D.C. Cir. 1978) 591 F.2d 821, 828-830 [government attorney who “served at the pleasure of his superiors,” had “no property right to continued employment cognizable under the due process clause,” but had the right to pursue administrative remedies to enforce protections afforded under an administrative manual and a regulation regarding layoff order.]; accord Bogacki v. Bd. of Supervisors (1971) 5 Cal.3d 771, 775-777 [employees who served “at the pleasure of their department heads” were, nonetheless, afforded certain dismissal appeal procedures].) The title of section 10.104 (“Exclusions from Civil Service Employment”) confirms that its purpose is to exclude employees from civil service merit protections rather than to specify what alternate job protections may result from bargaining and interest arbitration, or from policy determinations for unrepresented employees. (pp. 26-29.)