Thursday, September 11, 2014

Ninth Circuit Rules Peace Officer's ADHD is Not a Disability Under the ADA

On August 15, 2014 in Weaving v. City of Hillsboro, the Ninth Circuit ruled a police officer's attention deficit hyperactivity disorder was not a "disability" under the Americans with Disabilities Act. The court upheld the officer's termination for work-related problems caused by his ADHD.

In Weaving, the City terminated an officer for not getting along with peers and subordinates. The City alleged he "created and fostered a hostile work environment" and had problems with interpersonal communication. The officer argued his ADHD impaired his ability to work and interact with others, and qualified as disability under the ADA. He argued the City terminated him for his disability in violation of the ADA.

The court ruled his ADHD did not constitute a "disability" under the ADA because his condition did not severely impair his ability to work and interact with others. The court found he was a skilled police officer and supervisors had selected him for high-level assignments. Also, his problems interacting with others did not rise to the level of a disability. Asserting a disability on this basis requires such severe impairment that the subject is barely functional and essentially housebound. For these reasons, the court ruled his termination did not violate the ADA.

Friday, August 29, 2014

6th Appellate District: Reversal for Wrong Standard Applied

In Rodriguez v. City of Santa Cruz, the Sixth Appellate District ruled against an order from the superior court denying a petition. The petition was filed by Josafat Rodriguez Jr., a former Santa Cruz police officer, who applied to the City of Santa Cruz for industrial disability retirement. He claimed a psychiatric disability due to post traumatic stress disorder (PTSD). After the City denied his application, he challenged the ruling by filing a "Petition for Writ of Mandate." This petition was subsequently denied by the superior court. In deciding against the court's ruling the appellate court held that the wrong standard of review had been applied.

The appellate court explained that in reviewing the City of Santa Cruz's decision, the trial court was required to use its independent judgment. This however, is not the standard that was actually applied. In lieu of applying its own independent judgment the court deferred to the findings of an Administrative Law Judge who decided on behalf of the City of Santa Cruz, that the petition was not credible and that his claim should be denied. In reviewing the statement of decision of the trial court, it was evident that instead of applying its own independent judgment, it rendered a decision on the grounds of its determination that there was sufficient evidence to support the Administrative Law Judge's finding. In addition the trial court failed to articulate its independent findings in regards to key issues.

Ultimately, the appellate court ruled that while referencing a standard of independent judgment, this standard was not actually applied when determining whether to grant Mr. Rodriguez's petition. For that reason the order denying the petition was ruled against. This ruling emphasizes the importance of applying and adhering to the proper standards, as it relates to review.

Court of Appeal Enforces One-Year Discipline Limitations Period Even Though Officer's Identity Unknown

On August 25, 2014, the California Court of Appeal issued a decision in Pedro v. City of Los Angeles. The court held the department's ignorance of an accused officer's identity does not delay the one-year statute of limitations for disciplinary actions.

In Pedro, a man alleged an officer conducted private business on two occasions. He also alleged the officer treated him discourteously. The department charged the officer with using a city vehicle to inappropriately transport a member of the public, discourteous treatment of the public, and making a misleading statement to a supervisor. The department temporarily relieved the officer from duty more than a year after the man complained to the department.

The court granted the officer's writ of mandate challenging the allegations. The court found the allegations were time-barred. Under the Peace Officer Procedural Bill of Rights Act, the one-year period begins to run when a person authorized to initiate an investigation discovers, or with reasonable diligence should have discovered, an allegation of misconduct. The court ruled the limitations period for the allegations of misusing a city vehicle and discourteous treatment began when the man complained to the department. Although the officer was not identified as the subject of the complaint until a later date, the court held the department could have discovered the officer's identity with reasonable diligence. The court also held the limitations period for the misleading statement began when the officer made the statement, not when the department determined the statement was misleading.

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.