Wednesday, April 2, 2014

Court Strikes Down San Jose Mayor Chuck Reed’s Challenge to Attorney General’s Summary of His Pension Reform Act

On March 17, 2014, a Superior Court judge rejected Mayor Chuck Reed’s challenge to the Attorney General’s summary of his “Pension Reform Act of 2014.”  Reed claimed the first sentence of Attorney General Kamala D. Harris’s summary was false, partial, and argumentative.  The Court analyzed the Attorney General’s sentence word-by-word, and found it was not false, misleading, or partial in any way. 

Attorney generals summarize each ballot initiative for voters in 100 words or less.  The summary appears on the initiative petition circulated among voters.  If a minimum number of voters sign the initiative petition, the initiative appears on the ballot.  The summary gives voters a sense of the measure’s purpose without creating prejudice for or against the proposed measure.  Attorney General Kamala D. Harris wrote the title and summary for Reed’s Pension Reform Act.  Reed challenged the first sentence of the summary, which stated:  “Eliminates constitutional protections for vested pension and retiree healthcare benefits for current public employees, including teachers, nurses, and peace officers, for future work performed.” 

First, Reed claimed the word “eliminates” was misleading because the initiative does not repeal or replace any provision of the state Constitution.  The Court agreed the initiative does not eliminate any provision of the state Constitution.  But the summary does not state the initiative eliminates constitutional provisions – the summary states the initiative eliminates constitutional protections.  The Court found the Attorney General’s characterization was accurate. 

Second, Reed argued the phrase “constitutional protections” is false and misleading because the California Rule granting public employees vested pension rights in retirement benefits is not constitutionally based.  The Court replied, “If the California Supreme Court says the California Rule’s protections are constitutionally based, they are.”

Next, Reed ignored California Supreme Court precedent a second time, arguing the word “vested” is false and misleading.  Reed claimed the word “vested” only describes benefits that have already been earned through past service, not benefits earned through future service.  Again, the California Supreme Court has used the term extensively to describe benefits earned through future service.

Finally, Reed challenged the Attorney General identifying “teachers, nurses, and peace officers” as affected public employees.  Reed claimed the Attorney General cherry-picked three very popular job classifications of public employees to discourage voter support.  In fact, those three job classifications make up close to half of all public employees.  The Court found the Attorney General accurately and concisely identified the affected employees for voters.  

The Court's decision marks another blow to Mayor Chuck Reed's initiative, which seeks to eliminate fundamental constitutional protections for California's public employees. 

Monday, March 31, 2014

Court of Appeal Rules CPRA Does Not Require Public Agencies to Disclose Officials’ Communications on Personal Accounts

On March 27, 2014, the California Court of Appeal held the California Public Records Act (CPRA) does not require public agencies to disclose officials’ communications about public business on personal email and cell phone accounts.  The Court held communications stored solely on private accounts are outside the reach of public records requests under the CPRA.   It is becoming increasingly common for public officials to conduct public business using private accounts.  While members of the public may seek disclosure of officials’ voicemails, text messages, and emails stored on public agencies’ accounts, communications on private accounts are protected from CPRA requests.

In June of 2009, Ted Smith requested, “voicemails, emails or text messages” on personal electronic devices about “matters concerning the City of San Jose” on private electronic devices owned by Mayor Chuck Reed, members of the City Council, and their staff.  The City agreed to produce records stored on its servers and those to or from private devices using City accounts, but refused to provide communications stored solely on personal accounts.  Smith responded by filing a lawsuit in Santa Clara County Superior Court.  The Superior Court sided with Smith and granted his request. 

The Court of Appeal overruled the Superior Court in favor of the City.  The Court found officials’ communications stored solely on personal devices don’t fall within reach of CPRA requests because they are not “owned, used, or retained” by the public agency.  The Court acknowledged public policy concerns of the public’s right to know versus the burden on the agency to provide the information.  However, the Court determined the Legislature is better suited to make such public policy decisions.  

The Court acknowledged public agencies have the right to create its own rules for disclosure of communications related to public business.  In fact, the City of San Jose adopted a resolution addressing this very issue after Smith filed his lawsuit.  Resolution No. 75293 was adopted on March 2, 2010.  The resolution revises City Council Policy 0-33 and allows public access to all communications of the mayor, City Council members, or their staff, regarding public business on private devices.  Mayor Chuck Reed himself signed the resolution.  However, the Court stated that the resolution was not relevant to the Court’s interpretation of the CPRA.

The full court opinion is posted here.

Monday, March 24, 2014

Court of Appeal Rules Overtime is Defined By Collective Bargaining Agreement

The California Court of Appeal issued an opinion in Vranish v. Exxon Mobil Corporation. The Court ruled collective bargaining agreements (CBA) meeting certain requirements define overtime for covered employees, not the California Labor Code.

In Vranish, Exxon Mobil employees regularly worked 12-hour shifts. They worked 7 consecutive days followed by 7 days off. The employees were represented by a labor organization and had a CBA. Under the CBA, employees only received overtime compensation if they worked more than 12-hours in a workday, or more than 40 hours in a workweek. However, Labor Code section 510 states employees must receive overtime pay if they work more than 8 hours in a single day.

The employees filed suit to recover overtime pay for regularly working more than 8 hours in a workday. But the Court ruled the Labor Code’s definition did not apply to the employees. Labor Code section 514 states the Labor Code’s definition of overtime does not apply to employees covered by a valid CBA meeting certain requirements. Since the CBA in this case met all of the requirements under section 514, the CBA defined overtime rather than the Labor Code.

Wednesday, March 19, 2014

Ninth Circuit Rules Fire Department Dispatchers and Aeromedical Technicians Are Entitled to Standard Overtime Pay Under FLSA

On March 18, 2014, the Ninth Circuit issued an opinion in Haro v. City of Los Angeles. The Ninth Circuit found standard overtime rules under the Fair Labor Standards Act (FLSA) apply to fire department dispatchers and aeromedical technicians. This case distinguishes fire department dispatchers and aeromedical technicians from firefighters in calculating overtime.

Under the FLSA, employees who work more than 40 hours in a workweek are entitled to overtime pay. However, Section 207(k) exempts certain job classifications from this general rule. Section 207(k) requires certain employees, such as firefighters, to work a total of 212 hours in a 28-day period before earning overtime pay. In this case, the City of Los Angeles classified dispatchers and aeromedical technicians as employees “engaged in fire protection.” Classifying dispatchers and aeromedical technicians as employees “engaged in fire protection” subjected them to the same overtime rules as firefighters.

L.A. City dispatchers and aeromedical technicians filed suit. They argued that they are not actively engaged in fire protection as defined by the FLSA, and should receive standard overtime pay. The City argued because dispatchers and aeromedical technicians contribute in a direct and vital manner to the fire department’s suppression of fires, Section 207(k) applies.

Although dispatchers and aeromedical technicians occupy a vital role in fighting fires, they are not employees “engaged in fire protection” as defined by the FLSA. The Court pointed out dispatchers do not actively engage in fire suppression. Rather, dispatchers send firefighters to the scene to suppress the fire. Similarly, the Section 207(k) exemption does not apply to aeromedical technicians. Their duties include medical support, setting up equipment, loading hoses and fittings onto helicopters, filling helicopters with water, and establishing secure landing sites. These are not duties of an employee “engaged in fire protection.” Since dispatchers and aeromedical technicians are not exempt under the FLSA, they were awarded backpay for unpaid overtime.

The City has participated in much FLSA litigation in recent years. The litigation caused the City to reconsider its pay practices for many employees, but the City never investigated its pay practices for dispatchers and aeromedical technicians. The Court concluded the City willfully violated the FLSA by failing to investigate whether dispatchers and aeromedical technicians were exempt under Section 207(k).

Monday, March 3, 2014

Supreme Court to Resolve What Counts As a Personnel File

Government Code section 3255 requires employers give firefighters an opportunity to review any adverse comments before they can be placed in the firefighters "personnel file, or any other file used for any personnel purposes by his or her employer."  Likewise, Government Code section 3256.5 give firefighters the right to inspect their files and request corrections.  But, some employers have tried to skirt around the law by making adverse comments in secret files or other places.  Now the California Supreme Court will weigh in on what constitutes a personnel file under FFOBR when it hears the appeal of Poole v. Orange County Fire Authority.

In Poole v. Orange County Fire Authority, the Court of Appeal ruled firefighters have a right under FFBOR to review and respond to personnel comments entered into "daily logs," even though the employer claimed they were not put in the employee's "personnel file."

The case is about a firefighter with the Orange County Fire Authority (OCFA). OFCA keeps personnel files at OFCA's headquarters in Irvine, but a fire captain kept a separate file at the fire station on each of the firefighters he supervised, which he called "daily logs." He used in the preparation of yearly evaluations and did not give firefighters an opportunity to review them before recording them.

When the firefighter found out about the "daily logs," he requested management delete them pursuant to section 3256.5(c).  However, OFCA refused, claiming they were not subject to FFBOR because “while the notes were intended to be used for personnel purposes, they were never ‘entered’ into any file.” The Court of Appeal disagreed, noting firefighters should be able to review the daily logs because the purpose of the law is to “facilitate the firefighter’s ability to respond to adverse comments potentially affecting the firefighters employment status.”

The California Supreme Court granted review on February 26, 2014.

Tuesday, February 18, 2014

9th Circuit: Pooling Premiums Not a Vested Contract Right

On February 13, 2014, the Ninth Circuit issued an opinion in Retired Employees Association of Orange County, Inc. v. County of Orange (2/13/2014) 9th Cir. 12-56706. The Retired Employees Association of Orange County (“REAOC”) filed a lawsuit against the County of Orange when the County decided to stop pooling retired and active employee health insurance premiums.

From 1985 to 2007, the County pooled health insurance premium rates for retired and active employees. Pooling the premiums balanced active and retiree rates and helped lower premium costs for retirees.  But on January 1, 2008, the County and various labor unions reached an agreement to reform the County’s health care program. The agreement split the insurance rate pool so active employee health benefit premiums were separate from those of retired employees.  REAOC sued, arguing the County’s longstanding practice of pooling premiums, and the County’s representations to employees regarding that practice, created an implied contract right for employees who retired prior to January 1, 2008.

California law states where a County intended to create a contractual obligation by resolution or ordinance, the contract may include implied terms derived from experience and practice. The California Supreme Court stated vested health benefits can be implied under certain circumstances from a county ordinance or resolution.

REAOC contended the County established a vested right for retirees to have their health benefit premiums pooled in the future by adopting the pooling scheme year after year. However, the Ninth Circuit held the resolutions supported enrollment in County health plans at a specific rate for a given year, but did not create a vested right to have benefit premiums pooled in the future. In other words, the Board’s approval of health premium pooling in years prior, by itself, did not create an ongoing contractual right.

Thursday, February 13, 2014

Ninth Circuit Strikes Down San Diego's CCW Policy

Today, in Peruta v. County of San Diego, the federal Court of Appeals for the Ninth Circuit struck down California's law about concealed weapons permits as a violation the the Second Amendment right to bear arms.  California law says a person has to have "good moral character," complete a training course, and have "good cause" to get CCW.  Sheriffs and police departments have their own policies about when to issue the permits.

This case was about San Diego's application of the law.  In San Diego, the sheriff's department required CCW applicants to "provide supporting documentation" to show good cause.  It also said being concerned about "one's personal safety alone is not considered good cause."  The court said this policy violates the Second Amendment.

The court found, "the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense."  Accordingly, the court struck down San Diego's requirement that CCW applicants had to have more of a reason than self-defense.

The court stressed that its decision does not affect restrictions on carrying or possessing firearms by criminals or the mentally ill or in sensitive places, like schools.