Monday, August 25, 2014

Federal Judge Rules California's 10-Day Waiting Period for Gun Purchases Unconstitutional in Certain Cases

Today, a federal judge ruled California's 10-day waiting period is unconstitutional for gun owners who have already passed a background check and have a permit or certificate of eligibility to own a gun. This ruling applies to purchasers who own a gun and have already passed a background check, purchasers with concealed-carry permits, and purchasers who have a state certificate of eligibility to own a gun. First-time gun purchasers are still subject to the 10-day waiting period. Judge Anthony W. Ishii stated: "the Court emphasizes that it is expressing no opinion on the constitutionality of the 10-day waiting period in general or as applied to first time California firearms purchasers." The court ruled the waiting period burdens the right to keep and bear arms, and the reasons for the waiting period did not justify the burden in certain circumstances. Judge Ishii stayed his ruling for 180 days to allow California to change its laws. This case marks a significant victory for Second Amendment rights.

Judge Ishii's full opinion can be found here.

California Employers Face Class Action Liability for Failing to Reimburse Work-Related Cell Phone Use

On August 12, 2014, the California Court of Appeal held in Cochran v. Schwan's Home Service, Inc. that California employers face class action liability if they fail to reimburse employees for work-related cell phone use. Employers must reimburse a reasonable percentage of employee cell phone bills, regardless of the cell phone plan or who pays the bill.

In Cochran, customer service managers of Home Service filed a class action lawsuit alleging the company failed to reimburse them for work-related cell phone use. The class included 1,500 employees.  Labor Code section 2802 requires employers to indemnify employees for "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer..."

The Court stated: "It does not matter whether the phone bill is paid for by a third person or at all. In other words, it is no concern to the employer that the employee may pass on the expense to a family member or friend, or to a carrier that has to then write off a loss." The Court found section 2802 is aimed at preventing employers from passing on operating expenses. Also, the Court held employers should not intrude into the private lives of their employees to find out how they manage their finances. While such details may affect each employee's recovery, it is irrelevant in determining employer liability under section 2802. Employers must reimburse employees for a "reasonable percentage" of their cell phone bills if they use their cell phones for work. Failure to do so may subject employers to class action liability for all affected employees.

Friday, August 22, 2014

Court of Appeal Ruling Requires Prosecutors to Review Confidential Police Personnel Files

On August 11, 2014, the California Court of Appeal held in People v. Superior Court prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision places the burden of identifying Brady information on the prosecutor. In addition, it narrows confidentiality protections for officers' personnel files.

This case delivered a blow to officers' confidentiality interests in their personnel records. In Brady, the U.S. Supreme Court announced a rule requiring the prosecution to disclose evidence that is favorable and 'material' to the defense. Such evidence includes past alleged officer misconduct contained in confidential personnel files. California state law provides protections against disclosure of such information in civil or criminal proceedings by court order. Before disclosure, the court must conduct a private 'in camera' review of the officer's personnel file to determine if the information must be provided to the defense.

Public agencies employing peace officers are generally responsible for reviewing personnel files for possible Brady information relevant to the defense. This case places the burden of review on the prosecution.

The Court divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify information subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense. The Court held Penal Code section 832.7(a) does not preclude prosecutorial access to officer personnel files for Brady purposes. The Court noted that because police are considered part of the "prosecution team," the two agencies can share personnel files without violating personnel file confidentiality laws.

This case has far ranging implications for law enforcement. Unless overturned, prosecutors will be allowed to routinely inspect peace officer's personnel records for Brady purposes and be required to file a Pitchess motion to have Brady material disclosed to the defense. This game changing decision will result in unnecessary disclosures to the prosecution and deprive officers of the ability to challenge. The court decidedly shifted the balancing of interests against officers' privacy rights. Look for this decision to trigger revisions to your local Brady policy. Request to participate in any policy revisions.

Monday, August 18, 2014

PERB Rules City of Palo Alto Failed to Meet and Consult Over Impasse Procedure Modification

On August 6, 2014, PERB issued a decision in City of Palo Alto. This ruling is significant for public employees for two reasons. First, the decision confirms that meet and consult obligations under Government Code section 3507 the same as the meet and confer obligations under section 3505. Second, this holding expands the meet and confer obligations to impasse rules and procedures.

In mid-July 2010, the City of Palo Alto proposed to repeal interest arbitration procedures in the City Charter for police and firefighter employees. The City planned to place the measure on the ballot for voters. International Association of FireFighters, Local 1319, AFL-CIO representatives demanded to meet and confer with the City about the rule modifications. The City refused to meet with Local 1319. The City claimed interest arbitration was a permissive, not a mandatory, subject of bargaining and the meet and confer obligations did not apply. Instead, the City offered to address Local 1319 representatives' concerns during the public comment periods at its regular public meetings. After holding public meetings, the City approved the measure to repeal interest arbitration from negotiation procedures.

PERB held the City failed to meet and consult in good faith under section 3507 by refusing to meet with Local 1319. PERB held the duty to consult under section 3507 is the same as the meet and confer duties under section 3505. Section 3507 requires public agencies to provide reasonable written notice to each employee organization affected by the proposed agency rule or modification, and afford each organization a reasonable opportunity to meet and discuss the rule before adoption. The parties must meet and confer for a reasonable period of time and attempt to reach an agreement. While the Supreme Court, PERB, and California courts do not require employers to meet and confer regarding impasse procedures under section 3505, employers must meet and consult on these subjects under section 3507.

Thursday, August 14, 2014

Court Rules No Qualified Immunity for Officer Accused of Deleting Video

On August 5, 2014, a U.S. District Court for the Eastern District of California held in Crago v. Leonard that an officer was not entitled to qualified immunity in a First Amendment lawsuit. The plaintiff, a probationer, alleged the officer violated her First Amendment rights when he did not allow her to record a search.

The circumstances in this case began when an officer received information that the plaintiff stole metal and a vehicle battery. The officer knew the plaintiff was on searchable probation and went to her house. He found her digging through her purse in the garage. He searched her purse and found a pipe and methamphetamine. The plaintiff alleged the officer seized her laptop computer after she told him she was recording the search. She further alleged the officer deleted the recording and said recording was not allowed.

Qualified immunity applies unless the official's conduct violated a clearly established constitutional right. The "First Amendment right to film matters of public interest" encompasses an individual's right to record police officers in the course of their duties. Other courts have held police officers may refuse recording if it interferes with the performance of those duties. However, no evidence was presented to the court to show the recording in this case interfered with the officers duties. As such, the court found the officer failed to establish his entitlement to qualified immunity.

Monday, August 11, 2014

Ventura County Pension Initiative Barred from November Ballot

On August 4, 2014, Ventura County Superior Court Judge Kent Kellegrew tentatively decided to issue an injunction barring the initiative to phase out Ventura County's pension system from appearing on the November 2014 ballot. The ruling has significant statewide implications for counties that participate in CERL.

The initiative seeks to withdraw Ventura's participation in the County Employees Retirement Act of 1937. This would put future Ventura County employees into a 401(k)-type retirement savings plan rather than the benefit plan covering current employees. The court held Ventura county cannot 'opt out' or terminate its participation in the Act based on a countywide voter initiative.

When the Legislature enacted the Act, it permitted individual counties to choose to participate. When Ventura County chose to participate in the Act, it agreed to follow the rules established by the Legislature. The Legislature only allows a county to terminate participation in the Act using the procedures set forth in Government Code sections 31564 and 31564.2. These procedures do not allow a county to opt out of the Act using a countywide voter initiative.

The court held allowing this measure to be considered on the November ballot would only result in wasted public resources. Even if the voters adopted the initiative, the measure could not be implemented because the initiative did not comply with Government Code sections 31564 and 31564.2.

In addition, the initiative fails on other grounds. The court held the initiative violates the single subject requirement imposed by the California Constitution.

On Wednesday, August 6, 2014, the Ventura County Taxpayers Association said it will not appeal Judge Kellegrew's August 4 ruling. This ruling marks a significant victory in preserving pension rights for county employees.

The ruling is unique as a pre-election challenge victory. After the superior court denied a pre-election challenge to a retirement-related Menlo Park initiative, most victories, such as those in San Jose and Pacific Grove successfully challenged initiatives after the election. This win helps establish that even highly unusual pre-election challenges can thwart attacks on retirement security.

Wednesday, August 6, 2014

NLRB Ratifies Board Actions Taken During Period of Invalidly Appointed Board Members

On July 18, 2014, the National Labor Relations Board ratified all Board actions taken during the period of invalidly appointed Board members. On June 26, 2014 the Supreme Court held in Noel v. Canning that President Obama invalidly appointed NLRB board members. The invalidly appointed members served on the Board between January 4, 2012 and August 5, 2013. After the Supreme Court's ruling, all Board actions came under scrutiny because the Board lacked a quorum. The Board has now ratified all actions taken during that period.

Specifically, the Board stated all administrative, personnel, and procurement matters were timely and appropriate. The Board expressly authorized the selection of Regional Directors Dennis Walsh, Margaret Diaz, and Mori Rubin. The Board ratified the selection of Administrative Law Judges Kenneth Chu, Christine Dibble, Melissa Olivero, Susan Flynn, and Donna Dawson. The Board also authorized the restructuring of various Field Offices, and the restructuring of Headquarters' Offices. This ratification is to remove all doubt about the validity of the Board's actions taken during the period of invalidly appointed Board members.