Friday, December 19, 2014

NLRB: Employees May Use Employer Email on Nonworking Time

On December 11, 2014, the National Labor Relations Board issued a greatly anticipated decision in Purple Communications , Inc. v. Communications Workers of America, AFL-CIO. The Board held employees may use employer email systems for statutorily protected communications on nonworking time, unless the employer shows a business justification for prohibiting it. In reaching this decision, the Board overruled prior case law to respond to technological changes in society.

The Board overruled its 2007 decision in Register Guard, finding it "was clearly incorrect." Register Guard held an employer may completely prohibit employees from using the employer's email system for concerted activities protected under Section 7 of the National Labor Relations Act. Register Guard allowed employers to completely ban employees from using the employers email system for these purposes without demonstrating any business justification, so long as the ban was not applied discriminatorily.

Purple Communications overruled Register Guard, finding it undervalued employees' core Section 7 right to communicate in the workplace about their terms and conditions of employment, and granted too much weight to employers' property right. The Board noted statistics showing email has become the most pervasive form of communication in the business world. The Board also discussed the Supreme Court's decision in City of Ontario, California v. Quon, which found some personal use of employer email is common and usually accepted by employers.

The Board stressed its holding in Purple Communications is "carefully limited." The holding only applies to employees who have already been granted access to the employer's email system and does not require employers to provide such access. Also, an employer may justify a total ban on nonwork use of email by showing the ban is necessary to maintain production or discipline.  Employers may also impose uniform and consistent controls over its email system to the extent necessary to maintain production and discipline. The holding is limited to email access, and does not extend to other forms of electronic communication. Although a small step, this decision shows the Board's willingness to adapt to ever-increasing technological changes.

This decision is about access to employers' email systems, not confidentiality of those emails.  It is possible some employers will read emails sent through their email systems and labor leaders should use caution about what they send on an employers' email system.

Wednesday, December 17, 2014

Court of Appeal Denies Administrative Appeal for Officers' Involuntary Transfers

On December 9, 2014, the California Court of Appeal held the Public Safety Officers' Procedural Bill of Rights Act ("POBR") does not afford officers the right to an administrative appeal of a transfer of assignment solely because the transfer may lead to negative employment consequences. In Los Angeles Police Protective League v. City of Los Angeles, the Court of Appeal denied two peace officers an administrative appeal for their involuntary transfers of assignments.

In City of Los Angeles, two officers were involuntarily transferred to different assignments. The City based one transfer on the officer's negative performance in the areas of counseling, communication, and management skills toward subordinate employees. The City transferred another officer because a discipline investigation supposedly damaged the officer's relationships with his coworkers. The City claimed his transfer provided an opportunity for a "fresh start with new coworkers."

POBR affords officers an opportunity for administrative appeal of "transfers for purposes of punishment." The officers alleged their transfers were punitive. As evidence, one officer asserted that the transfer would not allow her to work as many overtime hours and she would lose her department-issued take-home vehicle. The other officer showed he was placed on restrictive duty status, which prohibited him from carrying a gun, and the transfer damaged his reputation. Both officers asserted the transfers would adversely affect their opportunities for promotion in the department.

The court held the transfers were not punitive and the officers were not entitled to an administrative appeal. The court held the loss of possible overtime did not result in a "reduction of salary" because the officers were not entitled to particular amount of overtime and it varied depending on departmental needs. The court also found officers were not entitled to take-home vehicles, and it did not result in any reduction of salary. In addition, the City presented evidence that involuntary transfers would not hurt the officers' chances of promotion. This is an unfortunate case for peace officer's appeal rights.

Tuesday, December 2, 2014

California Supreme Court: Arbitrators May Rule On Pitchess Motions

On December 1, 2014, the California Supreme Court held arbitrators may rule on Pitchess motions during peace officer administrative appeals. The court's decision in Riverside County Sheriff's Department v. Stiglitz ensures peace officers can get information to defend discipline cases.

In Stiglitz, the Riverside County Sheriff's Department terminated a deputy for allegations of falsifying payroll forms. The deputy appealed the discipline to arbitration. The deputy intended to assert a disparate treatment defense, arguing others had committed similar misconduct but were not fired. To prove this defense, the deputy sought redacted records "from personnel investigations of any Department employees who have been disciplined for similar acts of misconduct." She limited her request to events during the previous five years, and only sought incident summaries, the rank of the officer, and the discipline imposed. The department objected, arguing in part that the requested information was confidential and the arbitrator lacked authority to rule on Pitchess motions.

The court held arbitrators have the authority to grant Pitchess motions. Evidence Code section 1043 states the motion should be filed in the appropriate court "or administrative body." The court held this language specifically grants arbitrators the authority to rule on the Pitchess motions because otherwise, the Legislature would have authorized filing a motion in a body not authorized to rule on it. The court also noted the Legislature did not provide a mechanism to transfer a motion from an administrative proceeding to superior court. The absence of such a mechanism showed the Legislature's intent for arbitrators to make such rulings.

The court also held its conclusion is consistent with the purposes behind the Pitchess statutes and the Public Safety Officer Procedural Bill of Rights Act ("POBRA"). The Pitchess statutes reflect the Legislature's attempt to balance a litigant's discovery interest with an officer's confidentiality interest. These interests must be balanced whether the motion is filed before a court or an administrative hearing officer. Also, POBRA grants officers the right to administratively appeal an adverse employment decision and give the officer an opportunity to convince the agency to reverse its decision. Allowing discovery of relevant information to an officer's defense during the administrative hearing furthers these goals.

Monday, November 24, 2014

Ninth Circuit's Opinion Granting Distress Damages in Officer-Involved Shootings Stands

On October 6, 2014, the U.S. Supreme Court denied review of the City's appeal of Chaudhry v. City of Los Angeles. This upholds the Ninth Circuit's ruling allowing pre-death pain and suffering damages in section 1983 claims when the death was caused by a violation of federal law.

In Chaudhry, a jury found a police officer's shooting was unjustified despite the officer testifying the suspect lunged at him with a knife. The jury awarded $700,000 to the suspect's family for wrongful death and $1 million to the suspect's estate for pain and suffering based on an excessive force claim under 42 U.S.C. section 1983. California law prevents a decedent's estate from recovering damages for the decedent's pre-death pain and suffering. Federal law is silent on the issue.

The Ninth Circuit found California's limitation on damages conflicted with section 1983's goals of compensation and deterrence. The Ninth Circuit ruled preventing pre-death pain and suffering damages to a decedent's estate makes it more economically advantageous for the defendant to kill rather than injure. The court held the state-law limitation on damages does not apply in section 1983 claims if the death was caused by a violation of federal law. This ruling greatly increases potential liability for section 1983 defendants.

Monday, November 17, 2014

New Jersey Superior Court Rules Police Dashboard Video Recordings are Public Records

A New Jersey Superior Court judge ruled in two separate cases police dashboard video recordings are public records subject to disclosure under New Jersey's Open Public Records Act. In his most recent decision, the judge ordered the Ocean County Prosecutor's Office to disclose a police dash-camera video depicting a police officer's use of a police dog during an arrest. The court found the video was not an exempt "criminal investigatory record," and disclosure did not violate the motorist's privacy rights.

The video shows an officer's use of a police dog during a vehicle stop arrest. The officer has been charged with aggravated assault and official misconduct. Plaintiff John Paff requested a copy of the video from the Prosecutor's Office on May 20, 2014. The Prosecutor's Office denied Paff's request arguing the videos were exempt from disclosure because they were criminal investigatory records.

The court ruled the Prosecutor's Office must disclose the video. He found the "ongoing investigation exception" does not apply because the video was made before the investigation began. This exception does not retroactively render public documents confidential once an investigation starts. Also, since police agencies require regular recording of law enforcement activities, the video constitutes a government record rather than a "criminal investigatory record." And disclosure does not harm the motorist's privacy rights because the incident occurred in a public place, and her face cannot be seen in the video.

The Ocean County Prosecutor's office plans to appeal the rulings. Releasing such videos may taint the jury pool preventing defendants from receiving a fair trial. In addition, the outcome of these cases may spur litigation under public records laws in other states.

Friday, November 14, 2014

Hearing Officers Must Exercise Independent Judgment When Reviewing Discipline Cases

The California Court of Appeal in Quintanar v. County of Riverside held that hearing officers must exercise their independent judgment when reviewing department discipline.

Quintanar is a Deputy in the Riverside County Sheriff's Department. The Department demoted Quintanar after he allegedly used excessive force. Pursuant to the procedures outlined in the MOU, Quintanar filed an administrative appeal which triggered a hearing before an impartial hearing officer. The MOU gave the hearing officer broad review powers. This included the ability to hold a full-scale evidentiary hearing where the hearing officer had to issue findings of fact and conclusions of law. Crucially, the MOU allowed the hearing officer to sustain, modify, or rescind the department imposed discipline.

The Court of Appeal concluded the MOU required the hearing officer to use his independent judgment in reviewing the discipline. The court seized on the broad hearing power and the ability to modify the discipline to justify its holding. While the hearing officer could consider the department's discipline as evidence, the hearing officer was not bound by those recommendations.

Many MOUs across the state contain similar language to the provisions in this case. In most cases, the MOU will not explicitly require the hearing officer to exercise independent judgment. However, if the MOU allows the hearing officer to "sustain, modify, or rescind" the department's discipline or if it allows the hearing officer to submit findings of fact or conclusions of law, courts may now require the hearing officer to exercise his or her independent judgment in reviewing the discipline.

Wednesday, November 12, 2014

Supreme Court Grants Review, Stay in Controversial Peace Officer Personnel Records Case

The California Supreme Court granted review and a stay today in the controversial Court of Appeal decision in People v. Superior Court (Johnson). The Court of Appeal ruled prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision delivered a blow to officers' confidentiality interests in their personnel records. The California Supreme Court will decide whether a prosecutor must file a Pitchess motion before accessing peace officer personnel files to search for Brady material that may be subject to disclosure to a criminal defendant.

The Court of Appeal previously considered whether the prosecution is entitled to direct access to peace officer personnel files to search for Brady material. To answer this question, the Court of Appeal considered the interplay between Brady v. Maryland, which requires the prosecution to disclose evidence material to the defense and Pitchess discovery procedures, which hold officer personnel records are confidential absent discovery under Evidence Code section 1043.

The Court of Appeal divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify Brady material 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 of Appeal found Section 832.7 does not preclude prosecutors' 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 confidential information. In coming to this conclusion, the Court of Appeal disagreed with People v. Gutierrez, and its progeny, which held the prosecution could not access officer personnel files absent a motion under section 1043. Gutierrez, following a prior California Supreme Court case City of Los Angeles v. Superior Court (Brandon), found the statutory Pitchess procedures implement Brady rather than undercut it, because a defendant who cannot meet the less stringent Pitchess standard cannot establish Brady materiality. Rather than following this precedent, the Court of Appeal ruled prosecutors may conduct a preliminary inspection of officers' personnel files. But if the prosecutor identifies Brady material, the prosecutor must file a Pitchess motion before disclosing it to the defense.

This case will be very important for law enforcement throughout the state. The Court of Appeal's decision has already been used by public agencies and courts to circumvent the Pitchess process. The California Supreme Court should overturn this misguided decision and restore Pitchess. A favorable Supreme Court decision will protect officers' privacy rights and prevent unnecessary disclosures of confidential personnel information.