Thursday, September 28, 2017

U.S. Supreme Court Grants Review Over Mandatory Public Sector Union Fees

The U.S. Supreme Court will again take up the question of whether making public sector workers pay fees to unions violates their First Amendment rights. Since 1977, the Supreme Court has upheld "union shops" where non-members may be assessed agency fees to recover the costs of "collective bargaining, contract administration, and grievance adjustment purposes" while allowing objectors to union membership to prevent having their dues used for political purposes. (see, Abood v Detroit Board of Education.)

Abood was challenged recently in Friedrichs v California Teachers Association, but last year he Supreme Court split 4-4.  The case that could overturn Abood is called Janus v AFSCME and comes out of the 7th Circuit.

Friday, September 8, 2017

Mastagni Holstedt Partner Kathleen Mastagni Storm Selected Among "Best of the Bar"

Mastagni Holstedt partner Kathleen Mastagni Storm was selected among the Best of the Bar by the Sacramento Business Journal.  She manages the Labor Department at the firm.  She has been honored by Top Lawyers and was selected to Super Lawyers Rising Stars.  She was previously profiled by the Journal in 2015.                                                                                                                                                                                                 Kathleen's practice focuses on public and private union organizing, unfair practice litigation before the National Labor Relations Board and Public Employment Relations Board, collective bargaining and contract enforcement. Kathleen’s practice also includes litigation in California and federal courts.
Kathleen represents clients in officer-involved shootings, disciplinary matters and discrimination cases. Kathleen lectures on the Firefighters’ Procedural Bill of Rights Act, Public Safety Officers Procedural Bill of Rights Act, unfair labor practices and fact-finding. 

Tuesday, September 5, 2017

PERB Again Upholds Its Jurisdiction to Hear Unfair Labor Practices Charges Brought by 830.1 Peace Officers Unions

In Association of Orange County Deputy Sheriffs v. County of Orange (July 19, 2017) PERB Case No. LA-CE-1101-M, PERB's Chief ALJ Shawn P. Cloughesy confirmed that police officer and deputy sheriff associations representing members who are Penal Code Section 830.1 peace officers have jurisdiction before PERB.  Orange County argued that PERB lacks jurisdiction over AOCDS because the bargaining units represented by the Association includes Deputy Sheriff I and II, Investigator, Investigator I, Sergeant, District Attorney Investigator, Investigator-Polygraph Operator, and Supervising Attorney's Investigator and Sergeant, who are classified as peace officers under Penal Code section 830.1.  MMBA section 3511 excludes “persons who are peace officers” from PERB's jurisdiction.

Relying on a case won by Mastagni HolstedtCounty of Santa Clara (2015) PERB Decision No. 2431-M, PERB upheld its authority to hear charges “that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers.” PERB specified that its authority applies to both adjudicating and remedying unfair practices in those cases.  PERB exercised jurisdiction over two AOCDS units, one comprised exclusively of peace officers, the other containing both peace officer and non-peace officer positions. Thus, the exemption under Section 3511 only excludes from PERB individual MMBA actions brought by persons who are 830.1 peace officers. As a result, an unlawful interference or retaliation against an officer of a peace officer union could result in duplicative litigation with the individual officers' action being brought before superior court and the union's action being adjudicated by PERB. Pending legislation in A.B. 530 would bring all unfair practices involving 830.1 peace officers and their unions before PERB while preserving the ability to seek injunction relief.

Friday, July 28, 2017

Gov. Brown Signed A.B. 119 Providing California Public Employee Unions Enhanced Access to New Employees

On June 27, 2017, Governor Brown signed Assembly Bill 119 mandating that public employers within PERB's jurisdiction provide recognized labor representatives expanded access to newly-hired employees.  This enhanced access is accomplished by mandating that an employer shall provide the union representative access to new employee orientations and to employee contact information.

Agencies must provide the union notice of any new employee orientation with at least 10 days advance notice.  The employer must also provide the name, job title, department, work location, work, home, personal cellular telephone number, personal email address, and home address of any new employee within 30 days of hire or by the first pay period of the month following hire and a list of that information for all employees in the bargaining unit at least every 120 days unless more frequent or more detailed lists are negotiated between the parties.

The disclosure of contact information is expressly modeled after our Supreme Court's holding in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 90, that the privacy clause of state constitution did not excuse the county from disclosing represented employees' contact information to the union.  The statute also adopts the privacy protections set forth in County of Los Angeles.

The legislation also establishes important bargaining obligations that unions should understand. Government Code Section 3557 provides that upon the request of either party, "the parties shall negotiate regarding the structure, time, and manner of the access of the exclusive representative to a new employee orientation. The failure to reach agreement on the structure, time, and manner of the access shall be subject to compulsory interest arbitration pursuant to this section."  Either party can request arbitration over unresolved access issues within 45 days after the first meeting between the parties or 60 days from the first request to negotiate.  

This legislation was enacted in anticipation of potential changes to or elimination of fair share procedures should the Supreme Court decide to hear another challenge to fair share. In Friedrichs v. California Teachers Association, the Court deadlocked 4-4, leaving in place a Ninth Circuit ruling upholding fair share procedures. Regardless of the fate of fair share, this new law provides labor organizations important new tools to increase their voluntary membership ranks and will equally benefit unions that do not have fair share procedures in place.   

Wednesday, July 26, 2017

Santa Clara Correctional Officer Vindicated in Mistrial Over Use of Force

On Tuesday, July 25, Santa Clara County Correctional Officer Tim Tri was vindicated when a jury voted 11-1 to acquit him in a use of force case.

Because the jury deadlocked, the judge declared a mistrial.  Tri’s attorney, Erin Dervin from Mastagni Holstedt, told ABC7 that “the eleven jurors are very adamant with us that they saw the case for what it was, that truly Mr. Tri was doing his job, what he’s expected to do and saving his partner.”

Santa Clara Correctional Peace Officers’ Association President Amy Le said, “With this particular case, to me, it seems like a witch hunt.”  She noted Tri should never have been arrested and that Tri was charged three years after the incident, only after a high-profile inmate death.

Erin M. Dervin is an experienced criminal trial lawyer with over 15 years experience as a deputy district attorney where she handled litigation and trials including complex financial crimes, sexual assaults, narcotics, domestic violence and general felony practice and tried over 60 jury trials.  She is a Senior Associate at Mastagni Holstedt.

Thursday, July 20, 2017

Appellate Court Holds Disclosure of Names of Officers on the Brady List Unlawful

Earlier this month, the Second District Court of Appeal issued a ruling in Association of LosAngeles Deputy Sheriffs v. Superior Court (“ALADS”) that will change the way many law enforcement agencies use so-called Brady lists. ALADS, the employee organization representing Los Angeles County deputies, challenged the Los Angeles County Sheriff’s Department’s Brady list policy, alleging it violated state law by disclosing peace officer personnel records without a Pitchess order. In so doing, the court distinguished from People v. Superior Court (Johnson) (2015) 61 Cal.4th 696 wherein our our Supreme Court commended a similar process used to continually notify the district attorney’s office of which officers' personnel records may contain Brady material.  ALADS held that, while the Sheriff’s Department could compile a Brady list for internal use, it could not share that list with prosecuting agencies, or advise those agencies that a deputy was on the list.
This case addressed whether California law protecting peace officer personnel files from disclosure conflicted with prosecutor’s constitutional obligation under Brady v. Maryland (1963) 373 U.S. 83 to disclose to criminal defendants all evidence in their possession favorable to the defense and material on the issue of guilt or punishment. Pursuant to Penal Code 832.7, personnel records and information cannot be disclosed in a criminal proceeding unless the prosecution or defense first files a Pitchess motion, pursuant to Evidence Code sections 1043-45. The Pitchess statutes require the prosecutor or a defendant to file a motion identifying the potential Brady material at issue and showing good cause to obtain information from a peace officer’s personnel records. Upon a showing of good cause, the court then reviews the personnel records at issue and determines what – if anything – must be disclosed.  Johnson held “the prosecution fulfills its Brady obligation if it shares with the defendant any information it has regarding whether the personnel records contain Brady material and then lets the defense determine whether to file a Pitchess motion."  It did not address the obligation to provide a Brady list or Brady tip, nor the legality of providing such information about non-witness officers. 

At issue in ALADS was whether the Sheriff’s Department could disclose to prosecutors the names of deputies who had Brady material in their personnel files without requiring the prosecutors to go through the Pitchess process. The Sheriff’s Department created a Brady list of deputies whose personnel files contained sustained misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment, then proposed to disclose that list to the district attorney and other prosecuting agencies. With that information, prosecutors could then file Pitchess motions to discover the underlying misconduct, or advise the defense of the disclosure, so it could file its own motion. ALADS opposed the proposed policy, on the grounds it violated Penal Code section 832.7, by disclosing personnel records to prosecutors without requiring them to first comply with the Pitchess rules. ALADS sued, seeking an injunction barring the Sheriff’s Department from disclosing to prosecutors its Brady list or any individual on the list to anyone outside the Sheriff’s Department, absent compliance with Pitchess procedures.

The trial court partially granted the injunction ALADS sought, barring the Sheriff’s Department from disclosing the list to prosecutors. However, the trial court authorized the Department to disclose to prosecutors the identity of individual officers on the Brady list, without complying with Pitchess, so long as any disclosed deputy was also a potential witness in a criminal case. ALADS appealed the decision, arguing Penal Code 832.7 did not allow the Sheriff’s Department to disclose the fact that a deputy was on the Brady list absent compliance with Pitchess, even when that deputy was a potential witness in a criminal case.

The appellate court sided with ALADS. The court noted that Penal Code 832.7(a) protects not only personnel records, but “all information obtained from those records.” According to the court, the fact that a deputy had an administratively founded allegation of misconduct was information from his or her personnel records, and was thus protected from disclosure absent compliance with the Pitchess procedure.  Because the information was covered by Penal Code 832.7, the Sheriff’s Department could not disclose it to prosecutors.

This case will impact law enforcement agencies statewide. It prohibits law enforcement agencies from providing Brady lists to prosecutors, and prevents them from disclosing the identity of individuals on such lists absent a court order compelling such disclosure.  Supreme Court review is a distinct possible.

Wednesday, July 19, 2017

David E. Mastagni Spars with Senator John Moorlach During Committee Hearing on Peace Officer PERB Jurisdiction

Mastagni Holstedt partner David E. Mastagni testified before the Senate Public Employment and Retirement Committee on Monday, July 10, 2017 regarding A.B. 530.

A.B. 530 is a PORAC supported bill introduced by Assemblymember Jim Cooper (D-Elk Grove), a retired sheriff's captain, that allows peace officers to file unfair practice charges at PERB.  This important bill clarifies existing conflicts regarding peace officer jurisdiction to pursue unfair practice charges and avoid the duplicative files required under current law for mixed units and charges affecting both the union and individual peace officers.

During his testimony, Mr. Mastagni and California State Senator John Moorlach from Orange County engaged in a spirited exchange over the efficacy of the bill.