Friday, June 28, 2013

Court Issues Injunction, Statement of Decision Affirming Constitutional Protection For Pensions

In May, the Monterey Superior Court overturned a voter initiative that tried to impair police officers' pensions.  The judge in that case, Pacific Grove Police Officers Association et al. v. City of Pacific Grove, has now issued a permanent injunction and statement of decision.  The injunction prohibits the city from "taking any action to implement, enforce, or give any effect" to the initiative.

The statement of decision explains the Court's ruling.  The Court explained the initiative violated the California Constitution by capping the City's contribution toward police officers' pensions.  "The employees were told that they were to receive retirement benefits under a CalPERS administered plan with an employee cost set at a fixed percentage of their salary.  The fluctuating portion would be borne by the employer."  The City violated the constitutional prohibition on impairment of contracts by effectively flipping those roles.

The Court stressed employees' vested rights.  The Court said, "the Court reiterates that what is vested in the employee is the right to earn a pension on the terms promised to him or her upon employment."  As a result, "no subsequent legislation by the city, whether by Charter amendment, ordinance, or Council resolution, or voter initiative, can take these rights away once given..."

The Court also explained officers' pensions could not be decided by initiative and therefore the "Citizen's Initiative is invalid because it delegates the responsibility of the ultimate decision for fixing compensation to the voters."  The Court said under the city's Charter, which mirrored the general law, the city council had to set all compensation.

The Pacific Grove Police Officers Association and Police Management Association were represented by Mastagni Law attorney Jeffrey R. A. Edwards in the matter.

Thursday, June 20, 2013

California Supreme Court: Charter Cities Can Have Binding Arbitration

In City of Los Angeles v. Superior Court (Engineers & Architects Association) (June 20, 2013) --- P.3d ---, 2013 WL 3064811, the California Supreme Court ruled charter cities with binding arbitration cannot refuse to arbitrate contract grievances. The ruling overturns an earlier Court of Appeal decision that decided charter cities cannot “delegate” wage and hour disputes to arbitrators.

The case centered on the City of Los Angeles’ unilateral decision to implement furloughs in 2009. The Engineers & Architects Association was in contract and filed a grievance challenging the furloughs. But, even though the contract had binding arbitration, the City refused to arbitrate, claiming it had special powers to impose furloughs and the arbitration clause did not apply. The union sued and won at the trial court, but the Court of Appeal intervened and ruled it was illegal for the City to delegate its power to set wages to an arbitrator, citing cases that require the governing body of a city or county exercise its discretion to set employee wages.

The Supreme Court overturned the Court of Appeal. The Court ruled that by ratifying the MOUs, the City made discretionary choices in the exercise of its salary-setting and budget-making authority and was therefore bound by the MOU. The Court also rejected the City’s claim it could not agree to an MOU which would impair its ability to take all necessary actions to carry out its mission in an emergency. The City also claimed that, because the mayor has to propose a budget annually, and the Council has to enact it annually, the MOU cannot restrict the choices available to the mayor and Council in later years. The Court quickly dispatched with this claim, pointing out that the City’s position, if correct, would make any multi-year deal with contractors, creditors, and vendors unenforceable.

Wednesday, June 19, 2013

AB 76 Guts Local Labor Associations' Access to Public Records

AB 76 makes key provisions of the California Public Records Act optional for local governments.  Among the provisions that would be optional under the new law are the requirements local agencies respond to public records requests within 10 days and provide requestor’s with electronic versions of public records.  These provisions are critical to labor associations who need prompt responses to public records requests, especially during contract negotiations.  The Assembly and Senate passed the bill, which contains other provisions related to the budget.  It is currently on the Governor’s desk awaiting signature. 

Since the provisions received significant attention earlier this week, Assembly Speaker John Perez promised to pass a replacement bill that leave the Public Records Act intact.  However, it looks like the State Senate will not act on his replacement bill.  Senate President Pro Tem Darryl Steinberg announced today the Senate won’t take up Perez’s bill, noting the changes to the Public Records Act are designed to save money, not stifle access to records.  That’s because if the provisions are mandatory, the State has to reimburse local governments for compliance, but if its optional, the State doesn’t have to reimburse them.  While local labor associations have other access to records under the MMBA and state labor laws, unlike the MMBA, the CPRA has a powerful enforcement mechanism giving associations teeth when they have to force an employer to turn over public records.

Thursday, June 13, 2013

Court: No Right to Pre-Interview Access to IA File

In Association of Orange County Deputy Sheriffs v. County of Orange, (June 12, 2013) G047167, the Court of Appeal ruled the County did not have to meet and confer with the DSA before it banned deputies from reviewing IA files before their IA interviews.  In Orange County, there was a longstanding practice where peace officers being IA'd could review the IA file before their interview.  Then, in 2011, the Sheriff banned anyone under investigation from reviewing the file before their IA interview.  The DSA sued, arguing the County had to meet and confer before making this kind of change to a past practice.

The Court decided the County did not have to meet and confer of this kind of a change to a past practice.  The Court reasoned that restricting access to IA files before the IA interview is not a "working condition" under the MMBA.  The Court looked to two other cases in reaching its conclusion.  In Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, the California Supreme Court ruled employers do not have to give officers pre-interview discovery.  Similarly, in Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, the court ruled law enforcement agencies can ban so-called "huddling" between counsel and officers after critical incidents.  In this case, the Court said pre-interview access to an IA file was like pre-interview discovery and the no "huddling" rule.  As a result, the Court decided it is not a "working condition."

The Court did agree the meet and confer requirement extends to changes in existing and acknowledged past practices, even if they are not formalized in a written agreement or rule.  However, the Court decided agencies only have to meet and confer if the past practice counts as wages, hours, or terms and conditions of employment.  Since the Court decided pre-interview access to the IA file did not count as a working condition under the MMBA, it ruled meet and confer rules did not apply.  Still, the Court left the door open to associations and agencies including these requirements in their MOUs if they chose to.

Monday, June 10, 2013

POST to Decertify Classes Not Recently Taught

In a June 4, 2013 bulletin, POST announced it plans to decertify several classes currently approved through POST.  The bulletin explains that a review of the courses currently certified showed many were one-time courses or courses that have not been offered since 2007.  As a result, "effective July 1, 2013, training courses not presented in the previous two fiscal years will be decertified. Exceptions to this include any basic course, Instructor Development Institute courses, Institute of Criminal Investigation courses; and Management and Supervisory courses."

Friday, June 7, 2013

Court: Pitchess Not Required for Peace Officer Personnel Records in Federal Court Case

In Pierce v. County of Sierra (E.D. Cal., June 3, 2013, 2:11-CV-2280 GEB AC) 2013 WL 2421710, a Northern California federal court ruled plaintiffs do not have to use the Pitchess process to get a peace officer's personnel records related in a federal lawsuit.  The case started when a deputy sheriff allegedly hit a motorcyclist with his patrol car.  The plaintiff sued the deputy and the county for negligence.

Then, the plaintiff sent a discovery request for parts of the deputy's personnel file to find paperwork related to the deputy's initial hire, find out about drug and alcohol testing, and the IA investigation related to the crash.  The County objected that the records were confidential peace officer personnel records under California Penal Code section 832.7.  The Pitchess process that limits disclosure of peace officer personnel records is the product of statute in California.  In many states, officers do not have these protections and their personnel records are more easily obtainable.

The Court decided the California Pitchess process did not apply in the federal action because the Federal Rules of Civil Procedure supersede the Pitchess process.  Instead, the Court examined whether there was good cause to turn over the documents.  The Court decided there was good cause because the records could shed light on whether the deputy was at fault and whether the County was negligent.  Accordingly, the Court ordered the County to release the records, but ordered the parties to work out a protective order to limit the exposure of the deputy's records.