Recent PERB Decision Shows Us Why You Shouldn't Waive Your Right to a Skelly Hearing

On February 26, 2025, the Public Employment Relations Board (“PERB”) issued a decision to reverse a PERB Administrative Law Judge’s (ALJ) ruling that the City of California City failed to follow disciplinary procedures when issuing Notices of Termination for three police officers represented by the California City Police Officers Association (“Association”).  Mastagni Holstedt partner Kathleen Mastagni Storm and associate attorneys Taylor Davies-Mahaffey and Spencer Shure litigated one of the PERB cases (County of Sonoma (2023) PERB Decision No. 2772Ma) that this decision cites to.

Scope of Representation

Under the Meyers-Milias-Brown Act (MMBA), a public employer cannot unilaterally change the terms and conditions of employment without affording the Association advanced notice and an opportunity to bargain. PERB has historically held that a decision is within the scope of representation if the decision has “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees” that “arises from the implementation of a fundamental managerial or policy decision.”

In County of Sonoma (2023) PERB Decision 2772Ma, PERB held that the County of Sonoma violated the MMBA and PERB regulations by placing a measure that dealt with peace officer disciplinary procedures on a November 2020 ballot without providing the exclusive representatives of its non-managerial peace officers (SCLEA and Sonoma DSA), notice or an opportunity to meet and confer over the measure and its effects. In this decision, PERB held that since the measure increased the potential for discipline and altered the discipline process, the measure significantly and adversely affected the employees’ working conditions and thus fell under the scope of representation. This decision highlights the fact that changes in disciplinary procedures are within the scope of representation.

Facts & Procedural History of California City

On September 14, 2019, three California City police officers were involved in a use of force incident during an arrest. After the investigation, the Police Chief issued a Notice of Termination to the three officers.

On February 5, 2021, the Association filed an unfair practice charge against the City, alleging that the City failed to follow disciplinary procedures when the Division Commander did not review the investigation and provide a recommendation regarding discipline. A PERB ALJ ruled that the City violated policy and ordered the City to rescind the termination notices.

On November 5, 2021, the City reinstated the police officers and subsequently placed them on administrative leave while the Division Commander reviewed the investigations. On January 18, 2022, after considering the Division Commander’ s recommendations, the Chief issued each officer a Notice of Intent to Terminate. On February 2, 2022, the officers informed the City that they waived their Skelly rights and wished to proceed directly to an appeal of their terminations.

On June 7, 2022, two of the officers filed a lawsuit in state court, alleging that the City violated rights afforded by the Public Safety Officers Procedural Bill of Rights Act (“POBR”). A jury found that the City did not violate the officers’ rights under POBR. The City Manager then issued each officer a Notice of Termination.

In response, the Association filed an unfair practice charge alleging that the City made an unlawful unilateral change to disciplinary procedures when the City Manager issued the Notices of Termination instead of the Chief of Police, as is prescribed in the Police Department Policy Manual. The ALJ held that the City violated the MMBA when it deviated from the Department Policy Manual by having the City Manager issue the officers’ Notices of Termination. The City filed exceptions asking PERB to reverse the proposed decision. The City essentially argued that the decision from the City Manager to terminate the officers was not under the scope of representation under the MMBA. The City reasoned that the City Manager’s decision did not have a significant and adverse effect on the officers’ terms and conditions of employment because it was highly likely the officers were going to be terminated by the City after waiving their Skelly rights. PERB agreed with the City.

PERB’S Reasoning for Their Decision

PERB held that the ALJ used the correct standard, but PERB did not agree that the change had a significant and adverse effect on wages, hours, or working conditions for this specific case. Here, after the City issued the Notices of Intent to Terminate, the officers’ waiver of Skelly rights meant it was exceedingly likely that Notices of Termination would follow. The Chief evaluated the investigation and the Division Commander’ s recommendations and issued the Notices of Intent to Terminate on January 18, 2022. When the officers waived Skelly rights, under department policy, there was no other information for the City to consider. A new Chief of Police or the City Manager’ s issuance of the Notices of Termination does not alter the underlying determination already made by the chief in the Notices of Intent to Terminate. Thus, the officers’ Skelly waiver left them without any pre-termination basis to challenge the Notices of Intent to Terminate.

Lesson Learned from California City

    It is important to note that this case is non-precedential, which means that PERB’s decision applies only to the parties involved in the case. This case shows us how important it is to never waive your right to a Skelly hearing even if the odds of success are low. Skelly hearings are an opportunity to address the allegations and provide mitigating information to the Skelly Officer. In this case, had the officers presented their claims in a Skelly hearing, the Chief of the Department would have been required to consider all information received regarding the recommended discipline. Therefore, the decision to terminate the officers from the City Manager would undeniably be a deviation from the established Skelly procedure. PERB even states in California City that had the officers not waived their Skelly hearing, their decision would have likely been different.

You can read the Sonoma PERB decision referenced above and handled by Mastagni by clicking here. 

Watch: David E. Mastagni Testifies In Support of Bill Prohibiting Employers from Questioning Union Representatives About Confidential Communications with Unit Employees

    On March 19, 2025, Partner Attorney David E. Mastagni testified before the State Assembly Public Employment and Retirement Committee in support of AB 340 on behalf of the Peace Officers’ Research Association of California (PORAC). AB 340 would prohibit a public agency employer from asking any employee or their union representative about communications concerning workplace matters that are made in confidence between the employee and their representative. 

    The bill safeguards public employees’ union representation by prohibiting invasive employer questioning and compelled disclosures that undermine confidential union communications. It ensures workers – whether peace officers, firefighters, or teachers – can discuss critical issues like safety concerns, overtime grievances, or discipline appeals with their union representatives without fear of employer interference.

Strengthening Union Representation Rights and Codifies PERB Precedent 

    Current state law does not explicitly prohibit employers from compelling employees or their union representatives to disclose what they discussed in private. AB 340 would codify existing Public Employment Relations Board (PERB) decisions, which have long held it's “beyond dispute that an employer’s inquiries into discussions between employees and their union representatives have a tendency to chill the protected activities of both the employees and the representatives.” County of Merced (PERB Dec. No. 2361-M). Merced further held that compelling such disclosure “restrains employees in their willingness to candidly discuss matters with their chosen…representatives” and “prohibits stewards from obtaining the needed information from employees.”

    William S. Hart (PERB Dec. No. 2595) held a District’s questioning of a shop steward about complaints received from bargaining unit members about another member violated the steward’s protected rights and the union’s ability to effectively represent its bargaining unit. PERB noted that “[a]n employer’s legitimate investigation into alleged wrongdoing cannot include quizzing the shop steward about…communications between employees and their union representatives, thereby deputizing the union as the employer’s agent for conducting disciplinary investigations.”

    The bill levels the playing field for public employees by making this protection universal across all public employers under PERB’s jurisdiction. When employees discuss workplace matters, like grievances or adverse actions, with their representatives, they often believe that these conversations are confidential. Keeping these communications confidential remains essential to fostering trust and ensuring effective representation for unit employees. If employees begin to question the confidentiality of their communications with union agents, such fears undermine the core functions of the union and may deter future employees from coming forward with claims of workplace misconduct or other concerted issues. 

    AB 340 enshrines the union representative’s ability to properly discharge its duty because effective representation hinges on privacy; when employers extract details about union communications, they undermine the union’s ability to advocate for its members. Such questioning chills open communications, discourages whistleblowers, provides employers an unfair insight into the union, and can be used to target union leaders.

    Bill opponents argue that the bill creates an evidentiary privilege regarding employee-union communications. The bill is modest and balanced. No such privilege is created. The bill does not alter the evidence code. Rather, it codifies a limited protection against employer compelled disclosures regarding communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation. It is only enforceable through PERB as an unfair practice charge against the employer.

    The bill does not limit the ability of local agencies to conduct thorough investigations, as it has no application to the questioning of percipient witnesses, including union representatives, to the underlying matters under investigation. Only confidential union communications are off-limits. There is also no limitation on questioning a representative who is a witness to the underlying events that are the focus of the inquiry. The bill excludes any application to criminal investigations, and incorporates portions of the Peace Officers’ Procedural Bill of Rights precluding peace officer representatives from being “a person subject to the same investigation.”

    In sum, AB 340 ensures public employees can turn to their unions without employer shadows looming over every conversation. Codifying this protection is a modest but powerful step. California has long led the nation in protecting workers’ rights, and AB 340 enshrines those representational rights into law.

Public Employment Relations Board Reinforces Peace Officer Confidentiality in Personnel Records and Applicability of Pitchess Procedures in Administrative Hearings

On January 31, 2025, the Public Employment Relations Board (“PERB”) issued a decision upholding the dismissal of the California State University Employees Union’s (“CSUEU”) unfair practice charge filed against the Trustees of the California State University – Stanislaus (“CSU”) seeking the disclosure of peace officer personnel records outside of the Pitchess process. On behalf of the Statewide University Police Association (“SUPA”), Mastagni Holstedt partner Kathleen Mastagni Storm filed an informational brief in support of denying the appeal. PERB upheld the dismissal of the charge without leave to amend.

Facts

    CSUEU represented an employee who submitted a formal complaint alleging a peace officer in the SUPA bargaining unit engaged in harassment, disparate treatment, and created a hostile work environment. At CSU’s request, the Stanislaus County Sheriff’s Department (“SCSD”) conducted an independent investigation and created a report. SCSD provided the investigative report to the CSU Stanislaus Chief of Police, and thereafter the Chief of Police forwarded it to CSU human resources representatives. The complaining employee was then given notice that her allegations were not sustained.

    Several months later, CSUEU submitted a request for information to CSU seeking, among other things, a copy of the investigation report. CSU responded to the request stating that “per California Penal Code Section 832.7, [the University] is precluded from distributing copies of SCSD’s report on the matter, absent a court order.” Thereafter, CSUEU asserted that CSU must meet and confer with CSUEU over the confidentiality concerns involved in providing the report and that a failure to do so would provide the basis for an unfair practice charge. After a series of responses from CSU and CSUEU, in which both parties reaffirmed their initial positions, CSUEU filed an unfair practice charge with PERB alleging CSU violated the Higher Education Employer-Employee Relations Act (“HEERA”) when it refused to disclose the investigative report or meet and confer with CSUEU to address its confidentiality concerns.

    The PERB Office of the General Counsel (“OGC”) dismissed the charge for failure to state a prima facie case. PERB’s OGC determined that the report was confidential pursuant to Penal Code section 832.7, and that the report could only be provided through the discovery process described in Evidence Code sections 1043 and 1046. CSUEU appealed the dismissal. In its review of the appeal, PERB concluded that CSU did not violate HEERA by refusing to provide the investigative report to CSUEU.

A Union’s Right to Information

    An exclusive representative is presumptively entitled to information that is necessary and relevant in discharging its representational duties or exercising its right to represent bargaining unit employees regarding terms and conditions of employment within the scope of representation. (Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 16-17; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 17.) PERB has held that investigatory reports relating to hostile work environment claims impacting bargaining unit members are presumptively relevant. However, if such reports contain private information of third parties, PERB applies a balancing test that weighs a union’s need and interest in obtaining the information against the employer or third party’s privacy and confidentiality interest. Typically, an employer may not outright refuse to furnish information based on privacy concern. Instead, the parties must meet and confer in good faith to reach accommodation such as redactions, limiting use of materials, and prohibiting public disclosure.

    Yet, this right to information is further limited if such requested information is protected by the confidentiality of California Penal Code Section 832.7. Such records are “confidential” and “may not be disclosed” save for the procedures outline in the Pitchess statutory scheme. The Pitchess statutes reflected the state Legislature’s intent to balance the discovery of requested information with an officer’s confidentiality interest.

    Penal Code Section 832.7 provides that the personnel records of peace officers…and records…or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except for discovery pursuant to Section 1043 and 1046 of the Evidence Code. (Pen. Code, § 832.7(a).) This statute establishes a general condition of confidentiality that applies beyond criminal and civil proceedings and cannot be circumvented by third parties invoking the California Public Records Act. (Copley Press v. Superior Court (2006) 39 Cal.4th 1272, 1286.)

    According to Penal Code Section 832.7, such confidential information may only be subject to discovery pursuant to Evidence Code Sections 1043 and 1045. The statutes establish procedures for discovery which require a party seeking the records to follow the Pitchess procedures. Such procedures include, among other things, a noticed motion, identification of the proceeding in which disclosure is sought, a description of the records, a time and place at which the motion for disclosure shall be heard, and affidavits showing good cause for the discovery sought. If the court finds “good cause” for the disclosure of the records, the court ruling on the motion must examine the records in camera and determine whether there are portions of the record to be excluded from disclosure.

CSUEU Attempted to Circumvent the Pitchess Procedures for Disclosure

    CSUEU refused to follow the Pitchess procedures; instead insisting the report be disclosed under HEERA and that CSU meet and confer over any privacy concerns.  PERB rejected the argument, explaining that because the peace officer personnel records are confidential pursuant to Penal Code 832.7, the requirement for CSU to meet and confer over privacy interests does not apply. PERB went on to find that on the facts of this case, meeting and conferring over CSUEU’s request for information would have been futile.

    Penal Code Section 832.7 and Evidence Code Sections 1043 and 1045 only permit discovery in the context of a pending hearing. CSUEU did not request the investigation report in the context of any pending action. Rather, it sought the report for the general purpose to better represent its members in future matters. The Supreme Court and PERB find that Penal Code Section 832.7 would be circumvented if it did not apply in the context of a pre-dispute information request. Therefore, CSUEU would need to comply with the Pitchess statutes to obtain a copy of the report. 

    PERB noted that a peace officer personnel record’s exemption from disclosure under CPRA does not render it entirely privileged under HEERA. However, the procedures for disclosure under HEERA must maintain the balance that the Legislature intended with the Pitchess statutes. Still, compliance is not possible without a pending proceeding in which the requesting party may file a motion to establish good cause to receive the records and a hearing officer can conduct an in-camera review prior to disclosure. 

    PERB concluded that an exclusive representative is not entitled to receive records covered by Penal Code Section 832.7 absent compliance with the Pitchess procedures. Given that CSUEU did not adhere to the requisite procedures and there was no pending hearing, the dismissal of the unfair practice charge was upheld. An exclusive representative may only obtain records deemed confidential under Penal Code Section 832.7 by invoking Evidence Code section 1043 in any hearing or arbitration where they are material. 

    This decision upholds the protections of Penal Code section 832.7 and prevents an exclusive representative or employee from undermining the Pitchess procedures through a request for information submitted before any action was pending before a hearing officer. PERB was firm in its refusal to issue a “…complaint alleging failure to provide information merely as a mechanism to assign an ALJ and allow a Pitchess motion to be filed; [finding] such bootstrapping falls outside the substantive and procedural boundaries of the confidentiality exception explained in the above-referenced jurisprudence.”  (California State University Employees Union v. Trustees of the California State University (Stanislaus) (2025) PERB Decision No. 2940-H at p. 16.)

SCOTUS Update: Law Enforcement Groups Again File Brief in Support of Petition for Certiorari to the U.S. Supreme Court to Review Excessive CCW Carry Restrictions

 On February 18, 2025, the Peace Officers’ Research Association of California, the California Association of Highway Patrolmen, the California State Sheriffs' Association and the Crime Prevention Research Center (CPPC) filed an amicus brief in support of a Petition for Certiorari to review the constitutionality of New York’s new concealed carry law, which severely restricts the places CCW permit holders may carry concealed handguns much like California’s Senate Bill 2 (SB 2).  

 The brief is in connection to the U.S. Supreme Court case of Ivan Antonyuk, et al. v. Steven James, the Acting Superintendent of the New York State Police, et al. The case challenges New York’s Concealed Carry Improvement Act (CCIA), a revised gun law adopted in New York in July 2022 – only days after the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association Inc. v. Bruen (Bruen). These law enforcement Amici had previously filed a similar brief in support of review on March 25^th, 2024, as well as an Amici Curiae brief in the United States Court of Appeals for the Ninth Circuit regarding a  California law, Senate Bill 2.

The Second Circuit issued a new opinion upholding most of New York’s “Concealed Carry Improvement Act” in an opinion issued after remand, which is nearly identical to the opinion vacated in light of United States v. Rahimi, 602 U.S. 680 (2024). Both the Second Circuit and the Ninth Circuit opinions upheld the majority of the respective restrictions on carry locations, disregarding the U.S. Supreme Court's warning against “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement” and “effectively declar[ing] the island of Manhattan a ‘sensitive place.’” Bruen at 2134.  

Bruen held “only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Id. at 2126. This Court identified “settled” sensitive places, such as “legislative assemblies, polling places, and courthouses,” where the carrying of firearms may be prohibited and directed lower courts to “use analogies to those historical regulations” to determine if new sensitive places restrictions are constitutionally permissible. Id. at 2133. Defying these Constitutional commands, New York and California expanded longstanding sensitive place definitions to encompass nearly their entire states, other than some streets and sidewalks. 

The Amici have an important interest in the Supreme Court correcting the Second Circuit Opinion to promote judicial economy, ensure a uniform interpretation of the Second Amendment, and uphold the principle of equal treatment under the law. The Ninth Circuit issued a consolidated opinion addressing SB 2 in Wolford v. Lopez, 116 F.4th 959, 970 (9th Cir. 2024), which upheld more restrictive California and Hawaii laws modeled after the NY law. The Ninth Circuit created a split from the Second Circuit and every other district court by upholding the reversal of the consent presumption that permit-holders may carry on private property. This restriction is commonly know as the vampire rule, wherein CCW permit holders cannot carry on private property without advance permission.  

The issues presented in this appeal are of national concern. The constitutionality of restrictions on where concealed carry may be prohibited is a serious national concern, particularly for the Sheriffs who issue the permits and the officers that must enforce constitutionally suspect laws.  Forcing officers to potentially violate citizens’ civil rights will subject officers to section 1983 liability and damages public confidence in law enforcement. Moreover, officers have a direct interest in protecting their own right to self-defense and concealed carry in their retirement. 

Attorneys David E. Mastagni, Taylor Davies-Mahaffey, and Timothy Talbot authored the brief. 

Ninth Circuit Ruling Prompts Refusal to Respond to Mental Health Calls

Because of a new ruling from the Ninth Circuit Court of Appeals, some firefighters and other first responders are finding themselves left without police backup as more and more departments are saying that they will no longer dispatch officers to certain 911 calls. The Sacramento County Sheriff announced Tuesday his deputies will no longer respond to mental health calls where a crime is not being committed. The shift in policy comes, Sheriff Jim Cooper said, after a 2024 ruling by the Ninth Circuit Court of Appeals in Scott v. Smith, 109 F.4th 1215 (2024).

Such circumstances create a dilemma for firefighters and medical providers: people need their help urgently but now, without law enforcement to secure the scene, they must potentially risk working in an unsafe environment.  But why is this happening? The source of this particular issue stems from the Ninth Circuit Court of Appeals ruling that expands officers' potential liability when restraining a subject suffering from a mental health crisis.

The Facts

Roy Scott dialed 911 on March 3, 2019, claiming people were outside his apartment with a saw. Police officers Kyle Smith and Theodore Huntsman were the first to arrive, with dispatch alerting them that Scott was mentally ill. When they arrived at the apartment, they knocked and identified themselves, remaining outside despite Scott’s urgings for them to “break the door down.” After a few minutes they came to the conclusion that Scott was indeed suffering from a mental illness. After about 7 minutes from their arrival, Scott opened the door holding a metal pipe.

The officers retreated from Scott and ordered him to drop the pipe, which he did. Scott was clearly disoriented. The officers ordered him to stand by the wall and asked if he had any more weapons. Scott complied and produced a knife, apologizing whilst he did so, and handed it handle-first to Huntsman without making any threatening gestures. At this point Scott informed the officers that he had paranoid schizophrenia. Scott repeatedly insisted he was not fine and requested to be put in the patrol car. The officers at this point knew that Scott was clearly distressed and qualified for a “medical hold.”

The officers then pulled Scott to the ground, while Scott yelled and struggled, he was rolled onto his stomach with his arms restrained behind his back. Then, Huntsman put his body weight on Scott’s back and neck for about 1-2 minutes while Smith put his weight on Scott’s lower body. After handcuffing and rolling him over, Scott’s face was bloody from thrashing against the ground, and he stopped yelling. He did not respond to the officers’ attempts to wake him up and was soon pronounced dead from restraint asphyxia.

Scott’s daughter sued under the Fourth Amendment for violating Scott’s right to be free from excessive force and the Fourteenth Amendment for violating her right to familial association (basically depriving her of a family member). This blog’s focus is on the Fourth Amendment.

Fourth Amendment Claim – Excessive Force

The Fourth Amendment states that police may only use force that is objectively reasonable under the circumstances. In order to decide what is “objectively reasonable” courts look to 3 different factors to see whether, from the perspective of a reasonable officer in that moment (and not using hindsight), the actions were reasonable. The 3 factors are (1) how badly did the use of force violate the Fourth Amendment (2) did the government have a good reason for using this force (for example, were the police trying to stop an active crime), and (3) a balancing act between the first two factors, namely, how badly the Fourth Amendment was violated versus how important it was that the government use that force. 

Factor One: Type and amount of force used and how badly that violated the Fourth Amendment

In order to decide if the force used by the police was okay, the court looked at both the level of risk that physical contact would cause harm as well as the actual harm that was actually inflicted. Here, they found that the police officers used deadly force because bodyweight compression was applied to Scott’s back and neck for 1-2 minutes while Scott became increasingly breathless. This is in line with a prior case, Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056–57 (9th Cir. 2003), where officers went too far when putting their weight on someone’s neck while they were restrained on the ground.

Factor Two: Did the government have a good reason to use this force

The court here looked to, among other things, whether a crime was being committed, whether the suspect was trying to escape or resist arrest, and whether the suspect was a danger to police officers or anybody else. Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). The court also stated that when dealing with someone with only mental health issues, the government’s interest is going to automatically be limited because they are not dealing with a criminal. Even if the person with mental health issues is acting out. 

The court found that the government did not have a good reason for using force because Scott was not suspected of committing a crime, he listened to officer instructions, and, even though he had two weapons, he did not brandish them and instantly handed them over and submitted to police control. The court also said his struggles were not considered resisting arrest because he did not threaten to or attempt to attack the police. Lastly, because the court thought less intrusive alternatives to bodyweight force were available, they did not believe the police had a good reason to use the level of force that they did. 

Factor Three: Balancing Interests

Lastly, the court looks to see whether the amount of force used by the police officers was necessary. The court here quickly concludes that the bodyweight hold was not necessary because they said that deadly force is not needed to restrain a person with mental health issues so that they can be put into a mental health hold.

Because Scott’s Fourth Amendment Rights were violated, and the police officers had good reason to know that these actions would violate Scott’s rights based off of the existing caselaw, the court ultimately held that qualified immunity does not apply here.

Conclusions

Scott v. Smith imposes a regrettable restraint on first responders’ ability to act. As a result of this decision, law enforcement agencies and officers are now faced with bad choices when responding to people with mental health issues. They can attempt to restrain the subject and secure the scene and risk losing qualified immunity, or direct officers not to respond. 

With qualified immunity now able to be stripped away on a case-by-case basis, agencies are understandably hesitant to secure the scene for firefighters and other first responders to do their work safely and efficiently even when there is no crime or threat of violence. Sacramento Metropolitan Fire Department spokesperson Parker Wilbourn expressed his desire for “either a legislative effort or the courts to make a decision.”  Hopefully, this decision will be reversed.