Friday, May 18, 2018

Court Dismisses POBR Suit Over Denial of Request for Representation in Inspector General's Investigation and Awards State Fees Under Anti-SLAPP statute




In Blue v. California Office of the Inspector General 2018 WL 2147858, California’s Inspector General successfully denied the right of several correctional officers to be represented during interviews conducted as part of an institutional review of High Desert State Prison. 

During the summer of 2015, the California Senate Rules Committee issued a letter to the State Inspector General authorizing his office to review the practices at High Desert State Prison. The primary focus of the review was the prisons practices regarding excessive use of force against inmates.

As part of the investigation, five correctional officers—who previously worked at the state prison—were interviewed. Each of the former employees requested representation during each interview. All five of their request were denied. They were told they were not under investigation and nothing said would be used to pursue an investigation, or recommend an investigation be opened. Despite the assurances, several of the officers voiced concern that questions asked at the interview may lead to punitive action for failure to report misconduct.

After the interviews concluded, the five former High Desert State Prison Employees filed suit alleging that the Inspector General violated the Public Safety Officers Bill of Rights (“POBRA”) by refusing each employee’s request to be represented during the interviews. In response, the Inspector General’s Office filed an Ant-SLAPP Motion.

California’s Anti-SLAPP statue allows a defendant to move for dismissal of a lawsuit if it can successful argue that the suit was brought in order to deny a person’s right to free speech. Specifically, the Act provides that “a cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

In granting the Inspector General’s Anti-Slapp Motion, the Appellate Court held that review of High Desert State Prison concerned a topic of widespread public interest and the report issued to the Senate contributes to a public discussion of the topic. The Court also commented that “had the defendants known they would be required to defend against meritless claims arising out of their interviews with the individual correctional officer plaintiffs without the ability to have those claims stricken at an early stage in the proceedings under the anti-SLAPP statute, it is entirely possible they would have conducted the review without interviewing those plaintiffs at all, and thereby would have lost valuable information forming at least part of the basis for a number of the OIG’s recommendations regarding policy improvements at High Desert State Prison. Simply put, public discussion of this important issue may well have been chilled.”

Finally, the Court stated that “none of [the five officers] had a reasonable basis to believe their interviews with the [Inspector General] could lead to punitive action against them.” Thus, there was no basis for invoking POBRA rights. However, the Court failed to address how the act of simply allowing a representative into that meeting would “chill free speech.”  

This case illustrates the pressing need to amend the Anti-SLAPP statute to exclude public sector labor litigation.  The Anti-SLAPP statute was enacted to prevent lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.  This case is the latest in a line of cases subjecting public employees and their unions to the threat of significant fee liability when they seek to enforce labor statutes.

POBRA Entitles Peace Officers to Investigation Notes and Source Materials


A recently published Appellate Court case clarifies that Section 3303 of POBRA requires public employers to disclose original source materials placed within final investigative reports prior to Skelly hearings.  

In James Davis v. County of Fresno, a supervising juvenile correctional officer was terminated. Prior to his termination, James Davis was served with a Notice of Intent to terminate, as well as, a packet of information containing an Internal Affairs Report and a 2012 Memo. Both the IA report and the 2012 Memo referenced certain attachments. The attachments were not provided to Davis.   

On appeal, Davis alleged the County’s failure to produce those documents violated his procedural due process rights that apply before his Skelly hearing.  In addition, Davis alleged the failure to produce the requested documents violated his rights under POBRA, Government Code section 3303 (g), which states a peace officer is entitled to “any reports and complaints.”

The court held materials delivered prior to Davis's Skelly hearing satisfied the requirements of due process applicable before disciplinary action was imposed, but that the County violated Davis's right under POBRA to receive “any reports or complaints made by investigators or other persons.”

The court analyzed the facts under Gilbert v. Sunnyvale (2005), stating the materials provided to Davis were only required to 1) adequately explain the employer’s evidence, and; 2) provide notice of the substance of the evidence so that Davis could adequately respond at the Skelly hearing.  However, the Court suggested that Davis might have been able to carry his burden by demonstrating how his response at the Skelly hearing would be hindered by the absence of the attachments, but David never made this demonstration and the Court held Davis’s pre-removal safeguards under due process were not violated.

However, the Court interpreted the term “any reports” to include the incident reports and interview transcripts attached to a September 2012 memorandum that was authored/prepared by a special probation investigator. The Court specifically appealed to POBRA’s legislative intent that providing officers with a copy of the attachments to an investigative memorandum helps assure the integrity of the report because the officer will be able to check the source documents to determine if they are accurately described in the memorandum. Thus, interpreting the term “report” to include attachments furthers POBRA's purpose of promoting stability, integrity and public confidence in law enforcement.

This case illustrates the importance of serving disciplinary discovery requests under multiple statutory and Constitutional grounds.  Generally, public safety union members have due process discovery rights under Skelly, the MMBA, and the POBR/FFBOR.  Had Davis only requested the information under Skelly he would not have prevailed. Discovery of source materials and investigative notes are often critical in refuting the conclusions and summaries contained in disciplinary investigations.  

AB 2154 Provides Minimum Paid “Release Time” for Union Activities



On February 12, 2018, Assembly Member Rob Bonta introduced AB 2154. The proposed legislation standardizes and expands “release time” for employees engaging in union activities without loss of compensation. AB 2154 mandates that that an employer provide a “reasonable” number of employees paid time off in order to conduct union activities including: 1) investigating potential or existing grievances; 2) meeting and conferring on matters within the scope of representation; and 3) testifying before public agencies.

Wednesday, May 9, 2018

Round One in the final showdown over the “California Rule”: Mastagni Holstedt files Alameda DSA’s Opening Brief in the California Supreme Court

On behalf of the Alameda County DSA, our office filed an opening brief last week with the California Supreme Court in Alameda County Deputy Sheriffs’ Association v. Alameda County Employees Retirement Association. The State of California and the Contra Costa Sanitation District appealed the lower court’s decision seeking to reverse a favorable part of the ruling that found legacy members could recover damages under a theory of promissory estoppel for the exclusion of various pay items from their pension calculations.  Not surprisingly, neither the Governor nor the Sanitation District appealed the Appellate court’s ruling that inclusion of terminal pays in pensions is not a vested right.  They also did not appeal the court’s reversal of the “California Rule” by holding that pension benefits could be reduced without providing any new offsetting advantage. Accordingly, we appealed those issues.  The Supreme Court had delayed ruling on the similar Marin and Cal Fire  appeals pending this action.  The Supreme Court’s decisions in these appeals will likely determine whether the Governor can use employees’ pension funds as a funding source for other spending priorities– a course of action he has already endorsed if the lower court’s ruling stands.

A copy of the brief can be found here:  https://drive.google.com/file/d/1t3XmGgSE-fbapo_0MPmlJMG-Js10tVC1/view?usp=sharing

Tuesday, May 8, 2018

PERB Approves Demand for Fact Finding Over Gun Policy

In 2016, the Ventura County Professional Peace OfficersAssociation (“Association”) and the County of Ventura began negotiating a Firearm Manual. In January of 2017, an impasse was declared over negotiations regarding a specific chapter covering the conduct of armed probation officers.

In February of 2017, the Association filed a request for factfinding with the Public Employees Relations Board (“PERB”). The request was made pursuant to Section 3505.4 of the Meyers-Milias-Brown Act (“MMBA”), as well as, PERB Regulation 32802.

Ventura County objected to the factfinding request. It argued that the policy at issue in the Firearm Manual addressed the use of force by sworn staff. According to the County, matters concerning use of force are not within the scope of representation and therefore not subject to factfinding under the MMBA.  The Association responded that because the Firearm Manual involves the use of deadly force standard applicable in the discharge of a firearm, it is a matter of employee safety and therefore within the scope of representation.

PERB’s Office of the General Counsel issued an administrative determination approving the Association’s request for factfinding. It held that it was not required to determine whether a matter is within the scope of representation before approving a factfinding request. Since the Office of the General Counsel’s role is limited to determining whether the conditions of MMBA section 3505.4 and PERB Regulation 32802 have been met, it was not empowered to determine whether the dispute or difference subject to factfinding is a matter within the scope of representation. As a result, it approved the Association’s request that the parties’ bargaining dispute be submitted to a factfinding panel.

The County appealed this administrative determination.  According to the County, the Office of the General Counsel should have first assessed whether the matter submitted to the factfinding was a matter within the scope of representation.

In ruling against the County, PERB noted that although factfinding is ultimately required only for disputes over matters within the scope of representation, the Office of General Counsel is not required in every case to make a definite determination to that effect before approving a factfinding request. Such a process is unwieldy and generally inconsistent with the time-sensitive nature of the factfinding process.

According to PERB, the principal purpose of factfinding is to assist the parties in reaching a voluntary and prompt resolution to their dispute through intervention of a neutral. To require a preliminary determination as to whether a matter is within the scope of representation before approving a factfinding request “would encourage both delay and gamesmanship, thus defeating the principal purpose of factfinding.”

Friday, April 6, 2018

Supreme Court Clarifies Qualified Immunity Applies to Use of Force When Protecting Third Parties

 On April 2, 2018, the United States Supreme Court clarified that peace officers are permitted to use deadly force in order to protect third parties.

In Kisela v. Hughes, three Tucson, Arizona police officers responded to reports of a woman hacking at a tree with a kitchen knife and acting erratically. Upon arriving on the scene, the officers spotted a woman, later identified as Sharon Chadwick, standing in the driveway of a nearby house. A chain-link fence separated Chadwick from the three officers.

Amy Hughes came out of that same house carrying a large knife at her side. She matched the description of the woman who had been seen hacking a tree. Hughes walked toward Chadwick. She stopped no more than six feet from her.

All three officers drew their guns. At least twice they told Hughes to drop the knife. Chadwick said “take it easy” to both Hughes and the three officers. Although Hughes appeared calm, she failed to acknowledge the officers’ presence or drop the knife.

The top bar of the chain-link fence blocked Officer Kisela’s line of fire. He dropped to the ground and shot Hughes four times through the fence. Less than a minute transpired from the moment the officers saw Chadwick to the moment Kisela fired shots.

All three officers jumped the fence, handcuffed Hughes, and called paramedics—who transported her to a hospital. At the hospital, she was treated for non-life-threatening injuries.  Afterwards, Hughes sued Officer Kisela under 42 U.S.C. section 1983, alleging excessive force in violation of her constitutional rights.

While underscoring the need for officers to make spit-second decisions, the Court declined to engage in the second-guessing of officers on the scene. The Court specifically noted that although the officers themselves were in no apparent danger, all three of the officers said at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick. To that end, Officer Kisela was entitled to the defense of qualified immunity

This is an important case for California peace officers. It underscores that officers are entitled to qualified immunity when utilizing deadly force in order to protect third-parties.  

Friday, February 23, 2018

Mastagni Holstedt Appeals Alameda County Deputy Sheriff’s Association PEPRA Decision to Supreme Court

David E. Mastagni and Isaac S. Stevens petitioned the California Supreme Court to review the First District Court of Appeals’ decision in Alameda County Deputy Sheriff’s Associationv. Alameda County Employees’ Retirement Association (“ACDSA”). The petition asks the Court to reverse the appellate court’s holding that detrimental changes to employees’ pension benefits need not be offset by comparable new advantages to be constitutional.

This case arose from the enactment of the Public Employees’ Pension Reform Act (“PEPRA”). On behalf of the ACDSA, we sued the Alameda County Employees Retirement Association (“ACERA”) in December 2012, after it announced plans to begin excluding forms of leave cash out and other pay items from ACDSA members’ pension calculations, supposedly to comply with PEPRA’s changes to the definition of “compensation earnable.” “Compensation earnable” is the pay used to calculate employees’ pension benefits.  The lawsuit alleged that, by excluding these pay items from members’ pension benefits, PEPRA infringed on members’ vested pension rights. The case was eventually consolidated with cases from Contra Costa County and Merced County asserting similar claims.

The trial court largely ruled against employees and unions in the case. According to the court, there was no vested right to pension that included terminal pay, and there was no basis for using the doctrine of promissory estoppel to require ACERA to continue including terminal pay in retirees’ pension benefits. We appealed.

While the case was on appeal, the First District issued a decision in a case raising issues very similar to ours, MarinAssociation of Public Employees v. Marin County Employees’ Retirement Association (“MAPE.”) The MAPE case also challenged the legality of excluding terminal pay from pension benefit calculations pursuant to PEPRA. In MAPE, the First District appellate court ruled that a detrimental change to vested pension rights did not need to be offset by a new advantage to survive scrutiny, so long as the remaining pension benefit was reasonable. Shortly thereafter, the First District issued a decision in Cal Fire v. California PublicEmployees Retirement System (“CalFire”), affirming the MAPE court’s decision that comparable new advantages were required when pension benefits were reduced.

The MAPE represented a radical departure from decades of case law protecting pension benefits from being reduced. In Allen v. City of Long Beach (1955) 45 Cal.2d 128, the Court ruled that the Constitution required any changes to vested benefits be material to the theory of a pension system, and any detriment resulting from such a change should be offset by a comparable new advantage. This principle is often referred to as the California Rule. Over the years, the courts repeatedly affirmed the validity of this rule, and required detrimental changes be offset by new advantages to survive constitutional scrutiny. By turning the requirement for a new advantage into a mere suggestion, the MAPE court made public employees’ pension benefits vulnerable to reductions in the future. Indeed, Governor Brown himself acknowledged that, when the next recession comes around he will “have the option of considering pension cutbacks for the first time in a long time.”[1]

The California Supreme Court granted review in the Cal Fire and MAPE cases while the ACSDA case was still pending in the appellate court. In granting review in MAPE, the Court ordered further proceedings in that case deferred until our case was decided.

The appellate court in ACDSA ruled on our appeal in early January.  The court issued a lengthy ruling, finding the trial court failed to include a vested rights analysis, and its analysis of PEPRA’s impact on the pensions of legacy members was incorrect.  In the ruling, the court cited the MAPE decision approvingly, ruling that PEPRA’s changes to employees’ pension benefits did not need to be offset by corresponding new advantages to be constitutional.  Beyond merely agreeing with the MAPE decision, the court in ACDSA went so far as to describe MAPE’s evisceration of California vested rights case law as “not controversial.”

While the court determined that legacy PEPRA members could be entitled to have the excluded pay items included in their pension calculations under a theory of promissory estoppel, it left the door open for the State to continue reducing employees’ pension benefits in this future. We appealed the decision to ensure the California Supreme Court had an opportunity to overturn the First District’s efforts to erode public employees’ pension rights.

The petition for review we filed this week asks the Supreme Court to review the appellate court’s ruling on the comparable new advantage issue, while leaving the estoppel ruling intact. As discussed in our petition, review is necessary to reverse the First District appellate court’s efforts to overturn decades of vested rights case law and protect public employees’ pensions in the future.

The State of California has also petitioned the Supreme Court for review, seeking to overturn the appellate court’s ruling on whether retirement associations had the authority to agree to include the pay items at issue in employees’ pension benefits to settle disputes over benefit calculations after the Court’s landmark ruling in Ventura. The State’s appeal thus challenges the appellate court’s ruling on promissory estoppel, while leaving its destruction of the California Rule intact.

By appealing the appellate court’s decision, the appeal ensured that the ACDSA has a seat at the table when the Supreme Court considers the First District’s ruling, and an opportunity to defend our clients’ rights to receive the pensions they spent decades working for. The Court will address this issue when it considers the MAPE and Cal Fire cases, and an adverse ruling on those appeals could supersede the appellate court’s decision in the ACDSA case. By appealing, the ACDSA ensured its objection to the First District’s attack on the California Rule would be heard. For similar reasons, we filed an amicus brief on behalf of the ACSDA and public safety associations across California in the Cal Fire case, asking the Court to affirm the continued existence of the California Rule. Be sure to check the blog to keep up to date on what happens. 


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[1] http://www.sacbee.com/news/politics-government/the-state-worker/article194434479.html