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.

Wednesday, September 19, 2018

Ninth Circuit: The First Amendment Forbids City From Prohibiting Police Officers From Criticizing Police Department Or City

On September 5th 2018, the Ninth Circuit found that a “Last Chance Agreement” restricting an employee’s negative comments about the police department, the city, or its employees, was an unconstitutional restraint on free speech.

In Barone v. City ofSpringfield, a victim advocate and a police department liaison to the city’s minority communities was investigated for two incidents. The first incident involved a tour during which students took photographs in restricted areas. The second incident involved a message left with dispatchers about a potential crime. After the investigation, the Officer was suspended for four weeks and placed on administrative leave. In order to return to work, she was presented with a mandatory Last Chance Agreement (“LCA”).  She refused to sign it “because it prohibited her from reporting on racial profiling and discrimination.”

After her refusal, the police chief provided her with an amended LCA. The amended agreement barred her from saying or writing anything negative about the department, the city, or their employees—although she could report complaints involving discrimination or profiling by the department. The amended LCA also said she would remain subject to a generally applicable order that barred her from publicly criticizing or ridiculing the department. She refused to sign this agreement as well and was subsequently terminated. She filed suit alleging, among other things, that the LCA violated her First Amendment rights.

The Ninth Circuit agreed that the amended LCA violated her constitutional rights. The Court specifically found that the Department’s concerns about potential disruptive speech were unconvincing. The Court concluded that the city needed evidence of past disruption or evidence that the anticipated harm is “real, not merely conjectural.” Without such evidence, the LCA unconstitutionally restrained Barone’s speech as a private citizen on matters of public concern.

Sunday, September 16, 2018

David P. Mastagni Interviewed About Independent Contractor Ruling

Earlier this year, the California Supreme Court cracked down on companies taking advantage of workers by calling them independent contractors when they're really employees.  Before the ruling, many employers claimed their employees weren't really employees at all, meaning they did not have any right to overtime or could be fired if they got sick, for example.  This Court's ruling means employers can't shirk their responsibilities for overtime, unemployment insurance, workers' compensation, payroll taxes, the right to join a union, and other benefits of employment status.

Mastagni Holstedt founding partner David P. Mastagni was interviewed in response of some companies objection the ruling hurts their profits.  He explained calling employees independent contractors "is cheap and they're cheap and they want to make a greater profit on the back of someone else.  But he explained, "after this case, there's a glimmer of hope and responsible employers will embrace it."  Watch the full interview at

In Dynamex Operations West v. Superior Court of Los Angeles, the Court held workers only count as independent contractors if "(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”

Wednesday, September 5, 2018

Mastagni Holstedt, APC is Proud to Announce the Opening of a New Larger Southern California Office

For more than 40 years, Mastagni Holstedt, APC has provided a full range of legal expertise and negotiations to address the diverse legal and bargaining needs of our clients. Thanks to our clients and the continued growth of the firm, Mastagni Holstedt, APC has moved into a larger office to better serve our clients in Southern California.

This week landmarks the opening of the firm's move from the Ontario office to a much larger space in Rancho Cucamonga, located at the foothills of the San Gabriel Mountains in Southern California. John Bakhit will continue as Managing Senior Associate in Rancho Cucamonga and is dedicated to maintaining and expanding comprehensive and successful legal representation throughout the Southern region of California.

"I am very pleased to see the Southern California team expand into the larger office in Rancho Cucamonga. It's a testament to the firm's commitment to excellence and expansion," commented David P. Mastagni, Founding Partner.

Friday, August 31, 2018

KFBK Talk Radio Host John McGinness Interviews David E. Mastagni on AB 931

KFBK Talk Radio Host John McGinness interviewed Mastagni Holstedt partner David E. Mastagni on August 30, 2018 about AB 931, the proposed state law that would have radically changed officer use of force standards.  The bill stalled in the State Assembly yesterday when Speaker Toni Atkins shelved the bill for this legislative session. 

McGinness introduced Mastagni as, "a well-known member of a prominent law firm family," and explained he shared law enforcement concerns about the bill, saying, "We recognize the tremendous flawed changed of what had been proposed and celebrate the fact that at least for now it didn’t happen and I also understand that a significant amount of the work that was done on this is credited to you."  David explained, "I wouldn’t take all the credit on this; I worked with a great team.  From the President of PORAC and their lobbyist to the Cal Chiefs, a long with a lot of other law enforcement stakeholders."

McGinness asked about the constitutional issues about AB 931.  David explained, "We would have been headed to a massive constitutional challenge on this.  The California Constitution, in article 1, section 1, expressly provides every citizen of California the right of self-defense and the defense of property.  And what this bill would have done is it would have held officers to an impossible standard that was much higher than you and I and every other citizen of this state and treated them differently because of their status as a peace officer, which raises another serious constitutional question under the 14th amendment and that’s equal protection."

They also discussed the immediate impacts to officer and public safety.  David explained, "I think [AB 931] would incentivize officers not to do anything and we’ve seen this happen back east.  Baltimore is a great example."

"As a citizen and a father it is of great concern to me as well.  What this kind of legislation really does is it creates a huge disincentive for officers to engage in proactive policing.  Proactive policing and community policing over the last couple of decades is where we’ve seen the best results in reducing crime."

"And it’s going to incentive officers to wait for a call for service and respond only to that call because the feeling will be you can’t second guess me for going where you ordered me to go but if I engage in proactive policing and something happens that controversial I’m going to get second guessed; I’m going to get second guessed from this impossible standard that the Ninth Circuit has even said that would require super human judgement.”

You can listen the whole interview here.

Friday, August 17, 2018

Federal Court Confirms Officer’s Use of Deadly Force Justified in Order to Prevent Escape

A recently published federal court case underlines that if officers have probable cause to believe a suspect poses a threat of serious physical harm to themselves or others, they are justified in using deadly force to prevent escape. A warning is only required if feasible.

In Horton v. Pobjecky (2018), an unarmed off-duty police officer was waiting for food in a  pizzeria. The officer—Frank Pobjecky, was sitting in the break area with the restaurant manager—Vincenzo Tarara. Suddenly, four young men entered the front door. One of the men held a revolver. Two of the men entered the break room while a third went around the counter toward the cash register. The fourth man, Michael Sago (“Sago”), acted as a lookout. Sago stood in the entrance holding the front door open.

One of the men pointed a gun at Tarara and demanded money. Tarara told him to get out of his restaurant. Tarra then slamed the man against a cooler and reached for the man’s gun. While Tarara and the man struggled for control of the gun, Pobjecky, who knew that Tarara carried a concealed handgun on his hip under his shirt, grabbed Tarara’s gun.

Sago approached the break area. As he approached, Pobjecky gained possession of Tarara’s gun. Simultaneously, Tarara won the struggle for the other gun.  Pobjecky began shooting. He never identified himself as a police officer or gave any verbal warnings or commands.

With Tarara’s gun, Pobjecky engaged each suspect as they moved around the restaurant. Pobjecky shot and wounded all three men. Sago was shot three times from behind in the lower back as he crawled away toward the door. After Sago crawled out of the restaurant, Pobjecky locked the front door and called 911. Approximately 11 minutes later paramedics arrived. Sago died shortly thereafter.
James Horton, representing Sago’s estate, sued Pobjecky alleging that he used excessive force and failed to provide medical care in violation of 42 U.S.C. § 1983

In dismissing Horton’s case, the Court noted that as long as the assailants were moving inside the pizzeria, they posed a threat. The Court ruled that given the circumstances no reasonable juror could conclude that he should have stopped to identify himself as a police officer or warn each assailants before defending himself.

As to the failure to provide medical care, the Court ruled that it was “unreasonable to demand Pobjecky venture into the night with an empty gun, risking further onslaught, braving the hazards [Sago] and the other assailants created, to administer treatment to [Sago]”

Tuesday, August 7, 2018

Sacramento Bee Turns To David E. Mastagni For Insight On Recent California Supreme Court Ruling

On Tuesday, the Sacramento Bee published an article discussing the new California Supreme Court ruling in Boling v. Public Employment Relations Board. The article, entitled "California unions win another pension lawsuit. Will their streak continue?," provides valuable insight and analysis into a recent court victory for California Public Unions.

As outlined in the Sacramento Bee article, as well as a previous Mastagni Law Blog post, the California Supreme Court recently rejected the Mayor of San Diego's attempt to legislatively deny new municipal employees pension benefits without first meeting-and-conferring with existing unions.

As David E. Mastagni states in the Sacramento Bee, "You can't avoid bargaining obligations by going to legislation. It's an old trick that some public officials had come up with."

You can read the entire Sacramento Bee article here: "California unions win another pension lawsuit. Will their streak continue?,