Wednesday, July 18, 2018

Appellate Court Upholds Officer’s Five Day Suspension for Inappropriate Facebook Comments

In a recent unpublished decision, a police officers’ five day suspension for posting an off-duty Facebook comment regarding a matter of public concern was upheld. The case serves as an important reminder of the limited First Amendment rights afforded public employees and that public safety officers must always be cautions when utilizing social media.

In Zucker v. City of Los Angeles, LAPD Sergeant Benjamin Zucker contested a written reprimand, as well as, a five-day unpaid suspension for posting a comment on a third party’s Facebook page. His comment lambasted a civil action filed against the LAPD by a female officer claiming gender and religious discrimination.

Zucker’s comment was posted on the Facebook page of fellow Officer Mark Cronin. Officer Cronin’s page provided a link to a news article discussing a recent lawsuit filed against the city of Los Angeles by fellow Officer Victoria DeBellis. In that lawsuit, Officer DeBellis claimed she suffered workplace discrimination based on her gender and religion.

In response to the newspaper link, Zucker commented:

“I was born Jewish, raised Mormon and married to a catholic that is Japanese, Portuguese & German. NOW WHERES MY MONEY?
“Kiss my ass ya greedy house mouse!”

The term “house mouse” in law enforcement nomenclature refers to members of the department not working in the field.

Zucker did not identify himself as LAPD in his comments. Rather, Debellis was able to determine that Zucker was employed by LAPD because his Facebook page showed himself dressed in full uniform. After determining Zucker was an LAPD employee, Debellis filed a personnel complaint against him.

During the disciplinary process, Zucker was found guilty of “conduct unbecoming an officer.” He received an official reprimand and a five-day unpaid suspension. The Department found that Zucker’s Facebook profile showed “a clear nexus to the department” because it displayed a picture of him wearing his LAPD uniform and representing himself as an LAPD sergeant. The Department also concluded that: “Although in an off-duty capacity, he placed himself in a position where his actions were subject to on-duty scrutiny by other department employees, and may have some influence on the outcome of an unresolved litigation.”

Zucker challenged the reprimand and unpaid suspension in court. Specifically, he argued the imposed discipline violated his First Amendment rights because he was a citizen speaking on a matter of public concern—i.e. civil litigation/a news story. Moreover, he claimed that there was no nexus between his speech and his role in the department.

Applying the Garcetti v. Ceballos standard established by the Supreme Court, the Appellate Court made two crucial inquiries. First, it determined whether Zucker “spoke as a citizen on a matter of public concern.” However, it determined if the LAPD “had an adequate justification for treating [Zucker] differently from any other member of the general public.”

In a significant setback for the Constitutional rights of police officers, the court held the agency's interest avoiding Zuckers’s potentially disruptive Facebook comment outweighed his First Amendment rights. Though the court conceded his speech, i.e. commenting on a news article, involved a matter of public concern, it refused to afford him First Amendment protections largely because it also included a derogatory statement directed at Debellis.  The potential disruptiveness of this derogatory statement was adequate justification for treating Zucker different from any other member of the general public.

The Court highlighted that Zucker made the comments on Cronin’s Facebook profile—arguably knowing other LAPD employees would review the post. In fact, the Court specifically noted that Debellis actually saw Zucker’s comment and then filed a personnel complaint against him only after determining he was an LAPD employee. Accordingly, her complaint about his derogatory statement proved that Zucker’s comment “impaired harmony among co-workers and caused potential disruption to department operations.” For that reason, the Court concluded Zucker’s Facebook comment was not protected by the First Amendment and upheld Zucker’s suspension.
Interestingly, the appellate decision did not address whether the communications were protected under the MMBA as concerted actions. In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the NLRB overturned the discipline of five employees and found that the employees’ Facebook postings criticizing one of their co-workers was protected, concerted activity and that their discipline constituted retaliation for engaging in the protected activity.  Nevertheless, this surprising decision constitutes a stark warning that public cannot always rely on the First Amendment to protect their social media comments regarding matters of public concern that relate to their employment.  Public employee First Amendment cases are often decided by the factual nuances; had Zucker not referred to Debellis as a house mouse, the court likely would have reached a different conclusion. 

Friday, July 13, 2018

CalPERS Investment Return Exceeds Forecast For Second Straight Year

CalPERS reported an impressive 8.6% return on its investments over the last fiscal year.  That's on top of the 11.2% CalPERS reported for fiscal year 2016-17.  CalPERS investment return brings the total fund up to 71% funded, meaning CalPERS has that percentage of the funds it needs to pay out its obligations.  CalPERS recently reduced its predicted returns, triggering higher contributions into the system.  Continued successful investment returns is good news for California labor unions and public employers in the CalPERS system.

Tuesday, July 10, 2018

AB 1192 Ensures Retired Reserve Officers Can Carry High-Capacity Magazines/Assault Rifles

On July 7th 2018, Governor Brown signed Assembly Bill 1192 into law. The legislation, sponsored by Assemblyman Tom Lackey, was actively supported by PORAC.  This new law corrects a problem created by Proposition 63. 

In 2013, the California Legislature passed Assembly Bill 703. That bill allowed “honorably separated Level 1 reserve peace officers” to carry concealed firearms on the same basis as “honorably retired full-time peace officers.” At the time AB 703 became effective, the California Penal Code allowed the possession of high-capacity magazines by currently sworn full-time and reserve peace officers. It also allowed the continued possession of high-capacity magazines by California residents who lawfully acquired them prior to the year 2000 and by retired peace officers who acquired them during the course of their active duty.

However, in 2016, Proposition 63 passed. It required all persons, with few exceptions, to “divest themselves of high-capacity magazines by July 1, 2017.” Proposition 63 carved out an  exemption for “honorably retired peace officers.” Due to a technical oversight, Proposition 63 did not exempt “honorably separated Level 1 reserve peace officers.”  Accordingly, numerous retired reserve police officers were being forced to dispose of any high-capacity magazines possessed by them on or prior to July 1, 2017.  AB 1192 fixes that technical oversight and allows retired reserve officers to continue possessing high capacity magazines.

Thursday, June 28, 2018

In Response to Janus, Governor Brown Signs SB 866 which Bolsters Union Dues Deductions

 In the wake of the landmark decision of Janus v. AFSCME (readMastagni Law Blog Post RE: Janus v. AFSCME), Governor Brown signed SB 866 into law. The legislation was incorporated into the recently enacted state budget. The new law authorizes employee organizations to request payroll deductions and requires public employers to honor such request. Significantly, the new law requires agencies to honor the organization's dues deductions request based on the organization's certification of individual employee authorizations and to direct employee requests to cancel or change deductions for employee organizations to the employee organization, rather than to the public employer.   SB 866 applies to the vast majority of employers covered by PERB.

Specifically, the SB 866 makes several changes to the union dues deduction process including:

1.                  Employers must allow for payroll deductions for union dues;

2.                  Any request to begin dues deductions or cancel dues deductions must be made to the union, and not the employer;

3.                  The union is responsible for letting the employer know the amount of dues deductions for employees;

4.                  The employer must accept the information provided by the union on dues deductions for employees;

5.                  If a union states it has written authorization for begin deductions, it is not required to provide the employer a copy of the individual authorization unless a dispute arises about the existence or terms of the authorization;

6.                  The union must indemnify the employer for any claims made by employees as a result of the payroll deductions;

7.                  If an employer “chooses to disseminate mass communications to public employees or applicants to be public employees concerning public employees’ rights to join or support an employee organization, or to refrain from joining or supporting an employee organization, it shall meet and confer with the exclusive representative concerning the content of the mass communication;”

8.                  If the parties cannot reach agreement and the employer decides to go ahead with its proposed mass communication, it must also distribute a communication of reasonable length provided by the union.

SB 866 became effective immediately after Governor Brown signed it into law on June 27, 2018.

First Appellate District Allows SFPD to Circumvent Govt Code 3304(d) by Disciplining Officer for Acts Committed In December of 2012

On May 5, 2018, the First Appellate District of California issued the now published decision in Daugherty v. City and Countyof San Francisco. This widely publicized case arose out of the criminal investigation of San Francisco Police Department (SFPD) Sergeant Ian Furminger. The United States Attorney’s Office (USAO) conducted this investigation with the assistance of selected members of the criminal unit of SFPD’s Internal Affairs Division (IAD-Crim). The SFPD Internal Affairs Division is separated into two units: IAD-Crim investigates potential criminal conduct by SFPD officers, while disciplinary investigations are handled by IAD-Admin. SFPD imposes a “wall” between these two departments in order to protect evidence in criminal investigations. In the Furminger investigation, the USAO further required confidentiality and required IAD-Crim officers to sign nondisclosure agreements. 

In December 2012, the investigation led to the discovery of racist, sexist, homophobic, and anti-Semitic text messages between Furminger and nine other SFPD officers. IAD-Crim brought these text messages to the attention of Lieutenant DeFilippo. In order to maintain confidentiality, USAO and the Lieutenant chose not to disclose the text messages to IAD-Admin at this time. On December 5, 2014, a federal jury convicted Furminger. Three days after the final verdict, the USAO lifted the confidentiality restriction and released the text messages to IAD-Admin. IAD-Admin conducted an investigation and issued disciplinary charges against respondents in April 2015.

Rain O. Daugherty filed a writ of mandate seeking to rescind the disciplinary charges on the grounds that they were untimely and in violation of the Public Safety Officers Procedural Bill of Rights (“POBRA”). Under POBRA, no punitive action may be taken against a public safety officer for any alleged act, omission, or other misconduct unless the investigation is completed within one year of the “of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omissions, or other misconduct,” subject to certain statutory exceptions. One such exception provides that the one year time period is tolled while the act, omission, or other alleged misconduct is also the “subject” of a pending criminal investigation or prosecution.

The City of San Francisco argued that Lieutenant DeFilippo was not a “person authorized to initiate an investigation” because it is SFPD’s policy that only IAD-Admin was authorized to initiate disciplinary investigations of SFPD officers. Accordingly, the City argued that the statute did not accrue until the text messages were released to IAD-Admin in December 2014. 

In ruling for the City, the Appellate court stated that the details for implementing various provisions of POBRA are to be formulated by the agency itself. Based on this principle, the court held that law enforcement agencies have latitude to designate “a person authorized to initiate an investigation” and courts should apply the agency’s designation in determining when the limitations period begins to run. Applying SFPD’s designation, the court determined the statute of limitations did not begin to accrue until December 2014, when the text messages were turned over to IAD-Admin.  The Court also found that the one-year statute of limitations was tolled during the criminal investigation because “tolling applies to any conduct with a clear connection to the criminal investigation.” 

Although other courts have supported a more expansive view "person[s] authorized to initiate an investigation", this Opinion undermines the legislative intent of 3304(d) to provide peace officers a speedy adjudications of disciplinary actions by inviting agencies to narrowly define those authorized to initiate investigations.  Under Daugherty, high ranking police managers can avoid their duty to act promptly upon being informed of alleged misconduct.  As job security and disciplinary appeal rights remain squarely within the scope of representation, labor representatives should demand to meet and confer over any proposed policy changes narrowing the persons authorized to initiate investigations. 


On April 24, 2018, David E. Mastagni participated in a two-person panel discussion entitled: “Pensions: The Problems, Perspectives and Possibilities." The event was held at the Richard Nixon Presidential Library and Museum.

Click the link below to watch David’s discussion with Scott Ochoa--City Manager of Ontario California.

Wednesday, June 27, 2018

Supreme Court Rules in Favor of Free-Riders: Union Drop-Outs Don’t Have to Pay Fair Share Fees, Not Entitled to Non-Core Union Benefits

Today, the Supreme Court ruled that unions cannot collect fair share fees from employees who do not opt in to union membership.  While the decision means some unions will face a significant in drop in revenue, public safety unions are not expected to be as heavily affected.  This court decision was widely expected given the makeup of the Supreme Court and some recent cases.  California recently passed laws giving unions opportunities to reduce the impacts of the decision.

The case is about agency shop agreements.  In an agency shop, employees can chose to be full members of the union or decline union membership.  But non-members still have to pay part of the cost of supporting the union.  In some labor unions, non-members make up a big percentage of the employees covered by a contract.  In most public safety unions, non-members are already a very small share.  However, all unions should redouble efforts to provide high value to members and communicate with members about the benefits of union membership.

In Janus v. AFSCME, Mark Janus argued that his $45 monthly fee to the American Federation of State, County, and Municipal Employees (“AFSCME”) was unconstitutional and infringed on his first amendment rights. Specifically, he argued that as a public employee his contract negotiations are with the government, hence those fees were a form of political advocacy.

Based on long-standing precedent in Abood v. Detroit Board of Education, all covered employees must pay a fee to account for the benefits of collective bargaining that unions offer. Those fees cover collective bargaining costs, such as contract negotiations, but not political advocacy.

However, Janus claimed such a fee requirement violated his right to free speech, because those fees went to change government policy on salary, benefits, and pensions. Accordingly, his fees were a direct form of speech.

On the other side, the union strongly advocated that Janus’s agency fees simply prevented “free-riding” from employees who benefit from the union's negotiations. AFSCME argued that, because it was obligated by law to represent the interests of both union and non-union members, the fees were a way for employees to pay their fair share for contact negotiations for which they clearly benefited from.

In a 5-4 decision, the Supreme Court agreed with Mark Janus’s position. Justice Alito wrote:  "Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned," Avoiding free riders, Alito wrote: "is not a compelling interest."

Today’s ruling is a clear indication public sector unions must double their efforts to obtain full membership from their fair share bargaining unit members.  Unions should clearly communicate about the many benefits of union membership, including the right to vote on a contract, lawyers for legal defense and the ability to vote in union elections.  Other member-only benefits will vary from union to union.

Non-members are not entitled to many of the benefits unions provide to their members.  For example, non-members do not have a right to vote on a contract (though they must be given some avenue to express their views), they do not have a right to have an attorney represent them in a discipline case or critical incident, they do not get to attend union meetings, and they do not have a right to other benefits a union may provide like access to the union hall, free or reduced cost classes for educational incentive credit or CPR, or special life and disability insurance.

Unions should also be aware of new state laws designed to protect their rights.  The Legislature passed Senate Bill 866 on June 18, 2018 and it is currently awaiting Governor Brown’s signature.  The bill requires payroll deductions for union dues and makes the union, not management, responsible for determining member consent to union membership.  This prevents anti-union employers from using Janus as an excuse to drop members from the rolls, but it also requires unions to be actively engaged.  Senate Bill 285 prohibits employers from discouraging employees to join the union or trying to get members to drop their membership.  Again, it require vigilance from union to enforce the law.  Assembly Bill 119 gives unions the right to access new employee orientations and get contact information for new hires.  To get the benefit of this law, unions must request to bargain over new member access.  Since many unions, particularly in public safety, already have established policies and practices for new member orientations, this law sets the floor, not the ceiling for access.   A number of other bills mitigate the immediate impacts of Janus and unions should develop a plan to maximize use of these tools and member outreach to retain and grow membership.