Wednesday, November 14, 2018

Court Rules Agencies May Charge for the Costs of Extracting and Redacting BWC Video in Case with Significant Post S.B. 1421 and A.B. 748 Implications

On September 28, 2018, a California Court of Appeal found that the costs associated with extracting and redacting exempt material from body worn camera ("BWC") videos requested under the California Public Records Act  may be charged to the requester.  S.B. 1421 and A.B. 748 mandate that starting in January and July of 2019, respectively, law enforcement agencies must release previously exempt BWC footage of certain critical incidents.  In light of the anticipated flood of requests for BWC videos resulting from the enactment of these statutes, this ruling provides clarity regarding the ability to recovery the significant costs, including the personnel time, associated with extracting and redacting BWC video footage.

In NationalLawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, the non-profit group National Lawyers Guild requested public records from the City of Hayward relating to a demonstration held in Berkeley in December 2014. The demonstration was to protest recent allegations of police violence. The request included numerous documents and police body camera videos. The City had to review the videos and redact all exempt material, which required using a third-party software with audio/video editing capabilities.  The City sent the Guild an invoice for $2,939.58 seeking reimbursement for the time spent by the employee in editing and redacting the videos and for employing the software. The City also offered for the Guild to view the videos free of charge.

The Guild paid the invoice and brought an action seeking relief in the form of a refund and to release a second set of videos they had requested. The trial court concluded that section 6253 and 6253.9 do not permit the City to charge the Guild for costs incurred in making a redacted version of a public record.

The Court of Appeal reversed, and analyzed the statutory language and legislative history of section 6253.9(b) to determine what “extraction” meant. Section 6253.9(b) requires the requester of the information to bear the cost of production for certain records. Section 6253.9(b)(2) includes the “data compilation, extraction, or programming to produce the record.” The Court had to determine whether extraction meant taking “exempt material out of a digital file in order to allow a record to be produced” versus when the “request would require data compilation, extraction, or programming to produce the record.” That is, making a redacted version of an existing record would not amount to “extraction,” only the creation of a new record.  

The Court concluded that based on the legislative history, lawmakers were aware of the costs of redacting exempt information. Thus, they drafted 6253.9(b) to expand the circumstances when an agency may be reimbursed when it must incur costs to extract exempt material from public records. Therefore, 6253.9(b) includes the cost of extracting exempt material from video recordings with the aid of special computer programming and the Guild was required to bear the cost.

Monday, November 12, 2018

Appellate Court Holds San Francisco Police Department Does Not Have to Meet and Confer Over Restrictive Force Policy

The First District Court of Appeal denied the San Francisco Police Officers' Association's petition to compel arbitration of the POA's grievance challenging the City’s refusal to further meet and confer before adopting and implementing a revised use of force policy.  The appellate court held such policies to be a fundamental managerial and policy decision and held the even the implementation of the policy is not subject to negotiation.  The court did note that no pre-implementation effects bargaining issues existed because the parties had already negotiated over and resolved issues pertaining to training and discipline. 

The San Francisco dispute arose in 2015 when the city tried to change its policies on arrests and shootings.  Although the city agreed to meet with the union, the union objected to several proposed changes.  Specifically the union disagreed with the city’s decision to outlaw “carotid holds” (neck holds) and shooting at moving cars.

The California Meyers-Milias-Brown Act (MMBA) requires public employers to negotiate before making changes that impact wages, hours, and working conditions of employees.  The MMBA seeks to promote problem-solving between employees and employers.  When the City decided to unilaterally implement its revised force policy, the POA filed a grievance to enforce its bargaining rights.  The grievance raise 3 issues: (1) did the City have a contractual obligation to negotiate any aspect of the use of force policy; (2) if so, did that obligation extend to negotiating about the elimination of the carotid restraint and prohibition on shooting at a moving vehicle; and (3) if so, did the City fail to negotiate in good faith by its refusal to reduce to writing agreements it made during negotiations regarding these two issues.

Relying on the 40 year old San Jose decision, the court held use of force policies are a management right, thus the city was not required to negotiate with the union before changing the policies.  Quoting San Jose, the court held the dispute was not subject to arbitration: “The power of a city to enact and enforce regulations relating to the use of firearms by police officers is in the exercise of the police power granted by article XI, section 7 of the California Constitution, which a governmental agency may not suspend, bargain or contract away....”  

Friday, October 12, 2018

NLRB Issues New Standard For Duty Of Fair Representation Charge Defenses

On September 14, 2018 the National Labor Relations Board issued a memo addressing duty of fair representation charges against labor unions. The National Labor Relations Act makes it illegal for labor unions to restrain or coerce employees when they exercise their rights granted to them by the Act. The law states that a labor organization has a duty to fairly represent employees.

The NLRB believes that their past approach to duty of fair representation cases has created
confusion for employees in what duties are owed to them by union representatives. In response, the memo instructed regional directors that unions should be required to show they have procedures or systems in place to track grievances. It was also explained that a union which does not communicate or respond to a complaining member is negligent, and the negligence would be considered arbitrary and willful. The NLRB stated that it will not accept after-the-fact communication as a correction for negligence. 

The position taken by the NLRB is inconsistent with how they have interpreted duty of fair
representation law in the past. The change means that labor organizations can now be subject to charges based on careless or unprofessional actions that had previously been viewed as just plain error. To avoid a negligence charge, labor organizations should evaluate the procedures and case tracking systems they currently have to ensure their timeliness and thoroughness.

Thursday, October 4, 2018

Corona POA President Jason Perez Defeats CalPERS Board President

CalPERS has reported that Corona Police Officers Association President Jason Perez defeated incumbent CalPERS Board of Administration President Priya Mathur with 56.78% of the vote to her 43.22%.  His term will begin in January.  Perez ran on a platform of maximizing investment returns and putting an end to using CalPERS investments to advance unrelated social and political causes.

The Board of Administration is a 13-member board of elected, appointed, and ex-officio officials charged with overseeing and directing the management of CalPERS.  The executive leadership of the Board is elected from among its members. 

Tuesday, October 2, 2018

Gov. Brown Signs Two Bills Subjecting Law Enforcement Investigations of Force and Certain Misconduct to CPRA Disclosure

On September 30, 2018, Governor Brown signed two bills which reverse long standing public safety laws which exempt law enforcement investigations from disclosure under the Public Records Act, Senate Bill 1421 and Assembly Bill 748.  Mastagni Holstedt Partner David E. Mastagni worked PORAC in opposing these bills and limiting their scope. Both bills require disclosure of video and audio recordings of “critical incidents."  However, S.B. 1421 goes much further requiring disclosure of certain disciplinary investigations and findings.  S.B. 1421 also potentially cripples law enforcement's ability to obtain witness cooperation by mandating the release of as essentially all evidence gathered in investigations of police force involving death or great bodily injury.

Currently, Government Code section 6254, subdivision (f) provides that no disclosure is required of records relating to law enforcement investigations under the CPRA.  Our Supreme Court has recognized that records pertaining police investigations should not, for reasons of privacy, safety, and efficient governmental operation, be made public.  Recognizing peace officer safety and confidentiality concerns, Penal Code section 832.7 provides that peace officer personnel records, including records pertaining to discipline, are confidential and not subject to disclosure except through the Pitchess process.  (Notably, the media frequently misreports that the POBR established peace officer confidentiality.)

Effective January 1, 2019, SB 1421 significantly revises the CPRA and Penal Code to require disclosure of the following records under the CPRA:
  1. Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public. “Sexual assault” is defined as "the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexual assault."
  2. Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence."
  3. A record relating to the report, investigation, or findings of any incident involving the discharge of a firearm at a person by a peace officer or custodial officer, and an incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury. Originally, S.B. 1421 required disclosures of "serious" bodily injury, as well as deployments of electrical control devices and baton strikes, but the scope of the bill was narrowed.
The records that must be release are expansive: all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

Similarly, A.B. 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.

The bills have different timelines for production of records, and different grounds for delaying disclosure or withholding records.  Ultimately most records must be disclosed.  These bills create grave public safety concerns, including intimidation and reprisals by activist groups or criminals against witnesses whose statements will ultimately be disclosed.  The bills pose immediate threats to officer safety and privacy, as exemplified by the publication of the home addresses and family members of officers involved in critical incidents, threats against them, and protests at their homes and social functions. As analysis of video footage requires context, including an understanding of its limitations as evidence.  To draw meaningful conclusions, an explanation of other information known to the officer but not depicted on the video, and the officer's state of mind is necessary.  Mass video releases without context will be exploited by those with a predetermined political agenda or financial interests in controversy to mislead the public, while the involved officers are typically subject to a gag order.

Additionally, these bills raises a number of legal issues that will likely be determined in the courts.  Do the statues apply retroactively? What effect does S.B. 1421 have on expungement policies which have been specifically authorized by our Supreme Court? Will these statutes prompt officers to invoke the right to remain silent in critical incident investigations? Is S.B. 1421's requirement to disclose an officer's compelled statement under a Lybarger grant of use immunity constitutional?  If so, how can an officer receive a fair trial if his or her inadmissible statement has been widely published in the media? Does the application of either of these bills to Charter Cities violate the California Constitution?

David P. Mastagni Interviewed on KFBK's Kitty O'Neal About AB 748

On October 1, 2018, KBFK broadcaster Kitty O'Neil interviewed David P. Mastagni about AB 748.  Governor Brown signed the bill, which requires public release of video and records relating to critical incident investigations. 

O'Neil asked Mastagni what his concerns were about the new law.  He explained, "My greater concern is that the release itself is going to interfere with every single solitary investigation.  It’s going to cause witnesses to go into hiding. It’s going to jeopardize the safety of witnesses.  Frankly, it’s going to jeopardize the safety of the officers. And it will definitely take a law enforcement function and make it a media ping pong game."

O'Neil continued asking what he thought was behind the creation of the bill.  He explained, "I’ve dealt with the Legislature long enough to know they go by poll barometers and the never do anything based on the philosophic or best interests of society or law enforcement.  It’s always on what their district is like.  I call it promoability.  That public service, Kitty, has just gone from where you had volunteer councilman and people serving out of civic duty and dedication to career advancement and therefore you take positions that will encourage your constituency in your local district then you take them that will encourage your nomination ability in bigger, more statewide elections and I think that it’s all a calculus.  I’m sorry to say I don’t believe that the question of transparency or police-community relations – I think it’s there – but its maybe fifth, sixth, tenth down the line from how will this effect my career."

Listen to the whole interview here.

Thursday, September 20, 2018

Governor Signs Bill Barring Suits To Recover Pre-Janus Agency Shop Or Fair Share Fees

In the wake of Janus, groups such as the National Right to Work Foundation have been promoting litigation against public employee unions to recoup agency shop and fair share dues paid prior to Janus.  In response to a series of federal lawsuits seeking back-dated dues and fees from California public employee unions, the legislature passed S.B. 846.

Among other things, the Bill provides California public employee recognized bargaining organizations immunity from suits over previously paid fees.  Anti-union activists had argued that the fees have always been unconstitutional and unions assumed the risk of having to reimburse the fees by continuing to collect them despite dicta in earlier Supreme Court cases calling into question their validity.  The Bill, signed by the Governor on September 14, 2018, resolves the legal question and provides unions protection from costly litigation over practices that were legal prior to Janus.  The Bill adds Government Code 1159, which state in relevant part:

(e) The Legislature finds and declares:
(1) Application of this section to pending claims and actions clarifies existing state law rather than changes it. Public employees who paid agency or fair share fees as a condition of public employment in accordance with state law and Supreme Court precedent prior to June 27, 2018, had no legitimate expectation of receiving that money under any available cause of action. Public employers and employee organizations who relied on, and abided by, state law and Supreme Court precedent in deducting and accepting those fees were not liable to refund them. Agency or fair share fees paid for collective bargaining representation that employee organizations were obligated by state law to provide to public employees. Application of this section to pending claims will preserve, rather than interfere with, important reliance interests.
(2) This section is necessary to provide certainty to public employers and employee organizations that relied on state law, and to avoid disruption of public employee labor relations, after the Supreme Court’s decision in Janus v. American Federation of State, County, and Mun. Employees, Council 31 (2018) 138 S.Ct. 2448.