Monday, August 3, 2015

Mastagni Holstedt, APC Protects Retirement Rights in the Court of Appeal

Mastagni Holstedt, APC filed an amicus brief with the California Second Appellate District, Division One. At issue are adjustable retirement health subsidies under the City of Los Angeles’ retirement system. In 2006, the City of Los Angeles passed an ordinance which allowed the Board of the Los Angeles Fire and Police Pension System to provide an adjustable retirement health subsidy. This adjustable rate would allow the City to increase contributions as costs increased over time.

However, in 2011, the City of Los Angeles passed an ordinance freezing future increases to the subsidy. Los Angeles employee organizations brought suit alleging this violated their vested right to a variable subsidy. The trial court agreed and ordered the City to increase the subsidy pursuant to the 2006 ordinance.

The City appealed the decision arguing it had plenary authority to modify the pension subsidy as it was a type of “employee compensation.” In its brief, Mastagni Holstedt, APC argues a pension subsidy is not salary, but is instead a vested benefit. The California courts have already held on numerous occasions a pension benefit, once vested, cannot be revoked. The California Constitution’s Contracts Clause prohibits such an action. Thus, the City cannot arbitrarily revoke a benefit by reforming it as “employee compensation.”

Mastagni Holstedt, APC thanks the employee organizations who joined the firm in fighting back against the destruction of employee benefits.  Mastagni Holstedt attorneys David E. Mastagni, Isaac S. Stevens, and Ian B. Sangster represent the amici in the matter.

Thursday, July 30, 2015

California Public Safety Labor Blog Nominated for Best Legal Blog Award

Mastagni Holstedt, APC's California Public Safety Labor Blog has been nominated for the award of Best Legal Blog by the Expert Institute. Currently, the contest is accepting nominations for blogs for the contest. The more nominations the blog receives the greater its chance of making it to the voting rounds. We need your support in nominating our blog for this contest. Please visit the Expert Institute's website and nominate this blog for consideration. The deadline to submit nominations is August 21, 2015. Your support is what allows us to provide top quality legal information to thousands of public servants in California.

The Expert Institute is a New York based networking legal site that connects practitioners to expert witnesses. Their company is founded around the 21st century ideal that knowledge is power.

Thursday, July 16, 2015

U.S. Supreme Court Strikes Down Law Allowing Police to Search Hotel Registries

On June 22, 2015, the U.S. Supreme Court held in City of Los Angeles v. Patel that police searches can no longer be conducted on hotel and motel registries without a warrant absent consent or exigent circumstances. The case considered the constitutionality of Los Angeles Municipal Code 41.49. The Code stated all hotel and motel operators shall make their records available to any officer of the Los Angeles Police Department for inspection at any time. If operators failed to turn over these records, they could be charged with a misdemeanor. A group of motel operators and lodging associations challenged the law, asserting such searches were unreasonable under the Fourth Amendment.

The U.S. Supreme Court ultimately held searches without warrants of hotel and motel registries are unconstitutional absent consent or exigent circumstances. The Court stated the subject of a hotel registry search must be afforded the opportunity to obtain pre-compliance review before a neutral decision maker.

The Supreme Court outlined several ways an officer may search hotel registries absent a special need or consent from the operator. First, an officer could serve the hotel operator with an administrative subpoena, allowing the hotel operator an opportunity to challenge the subpoena in front of a judge before suffering any penalties for refusing to comply. An officer also could apply for a warrant. Additionally, if officers fear the destruction of the records while awaiting an available judge, they are permitted to guard the registry until a hearing could occur.

Monday, July 6, 2015

California Supreme Court Clarifies Pitchess Process Protects Officer Privacy

On July 6, 2015, the California Supreme Court reversed the Court of Appeal to protect the confidentiality of peace officers' personnel files.  In People v. The Superior Court of San Francisco County, the Supreme Court held District Attorneys offices must file Pitchess motions to review personnel files, ending attempts by some DAs offices to have unfettered access to officers' private information.

Evidence Code section 1043 and 1045 regulate access to peace officers' personnel files in California. The sections make peace officers' personnel files preemptively confidential, but permit parties that have a reason to believe the personnel records contain information material to a case to file what's typically called a Pitchess motion, to gain access to relevant parts of a file.  If party makes a preliminary showing, a judge reviews potentially relevant portions of the file and decides if they are material to the case and must be turned over.

This process applies in criminal cases, but also civil and administrative cases.  In criminal cases, another feature of this process is a prosecutor's duties under Brady v. Maryland.  Under that case, a prosecutor must disclose information that may help a criminal defendant in court.

In San Francisco, the Police Department had a Brady policy that took into account officer privacy and prosecutors' Brady obligations.  Under the policy, the Department had a Brady committee consider potential Brady issues, permitted comment by the affected employee, and made a recommendation to Chief, who decided whether to inform the DA.  The DA then had to file a Pitchess motion to access relevant portions of the officer's file.

But recently, some DAs claimed their Brady duty is so broad that they are entitled to unfettered access to peace officers' personnel files so they can decide what to give criminal defendants.  In this case, the trial court and the Court of Appeal agreed with this conclusion.

The Court of Appeal held prosecutors could access peace officer personnel records without filing a Pitchess motion for two reasons.  First, it concluded disclosing peace officers’ personnel records to the DA did not count as a “disclosure” within the meaning of the statute.  Second, the Court interpreted an exception to the Pitchess process about “investigations” to apply any time a criminal defendant filed a Pitchess motion.  The Supreme Court disagreed with this reasoning.

The Supreme Court noted the Pitchess process balances officers’ privacy with the needs of prosecutors to perform their duties under Brady.  It found the limited exception allowing direct access showed the Legislature did not intend DAs to have direct access under normal circumstances.  Second, Supreme Court disagreed the argument a Pitchess motion triggers a DA’s right to investigate an officer.  The Court defended peace officers noting, “A police officer does not become the target of an investigation merely by being a witness in a criminal case.”  The Supreme Court explained the exception applied, instead, to cases where the DA needs to do a criminal investigation of the officer’s own conduct.

Thus, the Supreme Court held, "the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records."

Tuesday, June 30, 2015

Supreme Court to Decide Challenge to CTA's Fair Share Fees

On June 30, 2015, the United States Supreme Court agreed to hear a constitutional challenge to the California Teachers Association's ability to collect fair share fees from non-members who benefit from CTA contracts.

Fair share fees, also called agency fees, are fees paid by employees who benefit from a union contract, but opt out of full membership.  Many unions, particularly in public safety, have voluntary membership rates above 99%.  But other unions have lower voluntary member rates for a variety of reasons and rely on fair share fees to finance contract negotiations and other core union activities.

Courts have long considered fair share fees constitutional in the public sector since the Supreme Court's 1977 decision Abood v. Detroit Bd. Of Ed., 431 U.S.209, 232.  But courts require unions who collect them to divide their core labor activities from other other activities and assess a fair share fee that only covers the cost of core activities.  In California, these rules are part of PERB's regulations. They require unions to give non-members written notice about agency fees and, depending on their size, prepare audited financial statements.  In this way, the courts balance the rights of non-members with the needs of the unions that provide critical services.

But the Supreme Court indicated recently it may change that balance and let non-members free ride on union benefits.  Last year, in Harris v. Quinn, the Supreme Court held the First Amendment prohibited fair share fees from some types of organized workers.  In the opinion, the Court disparaged fair share fees and invited another challenge.  But that case involved home health care workers who did not have a traditional union-member relationship and did not apply to other types of employees.  Now, the Court will hear a direct challenge to fair share fee requirements under California's regulatory scheme in its October term.

Thursday, June 25, 2015

PERB Clarifies Jurisdiction Over "Mixed Unit" Associations with Peace Officer and Non-Peace Officer Members

In County of Santa Clara (2015) PERB Decision 2431-M, the Public Employment Relations Board  found PERB has jurisdiction over charges brought by labor associations representing mixed units.

This case involved the Santa Clara County Correctional Peace Officers Association, which represents one bargaining unit, the Correctional Employees Unit.  That unit is composed of peace officers under Penal Code section 830.1(c) and non-peace officer correctional officers.  This type of unit is sometimes called a "mixed unit."

There has been a dispute about whether PERB has jurisdiction over charges brought by or against labor associations representing peace officers, but also other employee classifications. The reason there is a dispute is that Government Code section 3511, part of the MMBA, exempts "persons who are peace officers" from the 2001 changes to the MMBA that gave PERB jurisdiction over the Act. Some parties claimed this meant PERB does not have jurisdiction over claims brought by labor associations representing mixed units, since those units contain peace officers.  The Board heard oral argument on this issue two years ago, but that case settled before the Board issued a decision.

Since this case also involved a mixed unit, the Board clarified its jurisdiction over these units.  The Board wrote "we make explicit PERB's authority to hear charges, such as the present one, that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers."

The Board explained, "MMBA section 3511 precludes jurisdiction only with respect to charges brought by peace officers, not employee organizations."  The Board found support for this distinction in the MMBA's own definition of person which refers to a natural person, distinguishing it from an entity, such as a labor association.  Likewise, the Board noted the Legislature gave it jurisdiction over factfinding requests without a restriction on mixed units.

Mastagni Holstedt senior associate Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.

Thursday, June 18, 2015

PERB Tackles Vested Rights Issues in Finding Unions Refused to Bargain Over Employee Pension Contributions

On June 3, 2015 in County of San Luis Obispo (2015) PERB Decision No. 2427-M, PERB held two unions unlawfully refused to bargain over employee pension contributions. In reaching this decision, PERB ruled San Luis Obispo's independent retirement system did not provide employees with vested rights for employee contributions. This case demonstrates PERB's willingness to decide vested rights issues, potentially providing labor organizations with an alternative forum to litigate such issues.

The County of San Luis Obispo maintains the San Luis Obispo Pension Trust ("Trust") as its own independent retirement system. The County requested to bargain with two unions over a proposed increase in employee contributions to the retirement system. The unions argued, among other things, that the employee contributions constituted vested contractual rights and the unions could not lawfully bargain over such vested rights. During this time, the unions were litigating cases in superior court over similar issues. If the unions agreed to bargain over employee contribution rates, they risked weakening their position in the pending superior court litigation.

The outcome of the case hinged on whether the Trust provided vested rights regarding certain employee contribution rates. If PERB determined the pension benefits were vested at the current employee contribution rates, the unions would have been within their rights to refuse to bargain over proposed increased contributions for the same fixed level of pension benefit. However, PERB held the current employee contribution rates were not vested and immutable under the Trust's governing documents. PERB determined the Trust's language did not show a clear intent to create vested rights in particular contribution rates or benefits. Since the employee contributions were negotiable, PERB ruled the unions unlawfully refused to bargain over the County's proposed changes to the contribution rates.

This case demonstrates PERB's willingness to decide vested rights issues in determining whether a refusal to negotiate pension benefits constitutes an unfair labor practice. Although the County prevailed under the circumstances in County of San Luis Obispo, this case could benefit labor organizations in the future by providing an administrative forum with labor expertise to determine vested rights issues. This decision also shows the danger for labor organizations and employers to refuse to negotiate over proposals where bargaining obligations are unclear.