Friday, July 28, 2017

Gov. Brown Signed A.B. 119 Providing California Public Employee Unions Enhanced Access to New Employees

On June 27, 2017, Governor Brown signed Assembly Bill 119 mandating that public employers within PERB's jurisdiction provide recognized labor representatives expanded access to newly-hired employees.  This enhanced access is accomplished by mandating that an employer shall provide the union representative access to new employee orientations and to employee contact information.

Agencies must provide the union notice of any new employee orientation with at least 10 days advance notice.  The employer must also provide the name, job title, department, work location, work, home, personal cellular telephone number, personal email address, and home address of any new employee within 30 days of hire or by the first pay period of the month following hire and a list of that information for all employees in the bargaining unit at least every 120 days unless more frequent or more detailed lists are negotiated between the parties.

The disclosure of contact information is expressly modeled after our Supreme Court's holding in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 90, that the privacy clause of state constitution did not excuse the county from disclosing represented employees' contact information to the union.  The statute also adopts the privacy protections set forth in County of Los Angeles.

The legislation also establishes important bargaining obligations that unions should understand. Government Code Section 3557 provides that upon the request of either party, "the parties shall negotiate regarding the structure, time, and manner of the access of the exclusive representative to a new employee orientation. The failure to reach agreement on the structure, time, and manner of the access shall be subject to compulsory interest arbitration pursuant to this section."  Either party can request arbitration over unresolved access issues within 45 days after the first meeting between the parties or 60 days from the first request to negotiate.  

This legislation was enacted in anticipation of potential changes to or elimination of fair share procedures should the Supreme Court decide to hear another challenge to fair share. In Friedrichs v. California Teachers Association, the Court deadlocked 4-4, leaving in place a Ninth Circuit ruling upholding fair share procedures. Regardless of the fate of fair share, this new law provides labor organizations important new tools to increase their voluntary membership ranks and will equally benefit unions that do not have fair share procedures in place.   

Wednesday, July 26, 2017

Santa Clara Correctional Officer Vindicated in Mistrial Over Use of Force

On Tuesday, July 25, Santa Clara County Correctional Officer Tim Tri was vindicated when a jury voted 11-1 to acquit him in a use of force case.

Because the jury deadlocked, the judge declared a mistrial.  Tri’s attorney, Erin Dervin from Mastagni Holstedt, told ABC7 that “the eleven jurors are very adamant with us that they saw the case for what it was, that truly Mr. Tri was doing his job, what he’s expected to do and saving his partner.”

Santa Clara Correctional Peace Officers’ Association President Amy Le said, “With this particular case, to me, it seems like a witch hunt.”  She noted Tri should never have been arrested and that Tri was charged three years after the incident, only after a high-profile inmate death.

Erin M. Dervin is an experienced criminal trial lawyer with over 15 years experience as a deputy district attorney where she handled litigation and trials including complex financial crimes, sexual assaults, narcotics, domestic violence and general felony practice and tried over 60 jury trials.  She is a Senior Associate at Mastagni Holstedt.

Thursday, July 20, 2017

Appellate Court Holds Disclosure of Names of Officers on the Brady List Unlawful

Earlier this month, the Second District Court of Appeal issued a ruling in Association of LosAngeles Deputy Sheriffs v. Superior Court (“ALADS”) that will change the way many law enforcement agencies use so-called Brady lists. ALADS, the employee organization representing Los Angeles County deputies, challenged the Los Angeles County Sheriff’s Department’s Brady list policy, alleging it violated state law by disclosing peace officer personnel records without a Pitchess order. In so doing, the court distinguished from People v. Superior Court (Johnson) (2015) 61 Cal.4th 696 wherein our our Supreme Court commended a similar process used to continually notify the district attorney’s office of which officers' personnel records may contain Brady material.  ALADS held that, while the Sheriff’s Department could compile a Brady list for internal use, it could not share that list with prosecuting agencies, or advise those agencies that a deputy was on the list.
This case addressed whether California law protecting peace officer personnel files from disclosure conflicted with prosecutor’s constitutional obligation under Brady v. Maryland (1963) 373 U.S. 83 to disclose to criminal defendants all evidence in their possession favorable to the defense and material on the issue of guilt or punishment. Pursuant to Penal Code 832.7, personnel records and information cannot be disclosed in a criminal proceeding unless the prosecution or defense first files a Pitchess motion, pursuant to Evidence Code sections 1043-45. The Pitchess statutes require the prosecutor or a defendant to file a motion identifying the potential Brady material at issue and showing good cause to obtain information from a peace officer’s personnel records. Upon a showing of good cause, the court then reviews the personnel records at issue and determines what – if anything – must be disclosed.  Johnson held “the prosecution fulfills its Brady obligation if it shares with the defendant any information it has regarding whether the personnel records contain Brady material and then lets the defense determine whether to file a Pitchess motion."  It did not address the obligation to provide a Brady list or Brady tip, nor the legality of providing such information about non-witness officers. 

At issue in ALADS was whether the Sheriff’s Department could disclose to prosecutors the names of deputies who had Brady material in their personnel files without requiring the prosecutors to go through the Pitchess process. The Sheriff’s Department created a Brady list of deputies whose personnel files contained sustained misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment, then proposed to disclose that list to the district attorney and other prosecuting agencies. With that information, prosecutors could then file Pitchess motions to discover the underlying misconduct, or advise the defense of the disclosure, so it could file its own motion. ALADS opposed the proposed policy, on the grounds it violated Penal Code section 832.7, by disclosing personnel records to prosecutors without requiring them to first comply with the Pitchess rules. ALADS sued, seeking an injunction barring the Sheriff’s Department from disclosing to prosecutors its Brady list or any individual on the list to anyone outside the Sheriff’s Department, absent compliance with Pitchess procedures.

The trial court partially granted the injunction ALADS sought, barring the Sheriff’s Department from disclosing the list to prosecutors. However, the trial court authorized the Department to disclose to prosecutors the identity of individual officers on the Brady list, without complying with Pitchess, so long as any disclosed deputy was also a potential witness in a criminal case. ALADS appealed the decision, arguing Penal Code 832.7 did not allow the Sheriff’s Department to disclose the fact that a deputy was on the Brady list absent compliance with Pitchess, even when that deputy was a potential witness in a criminal case.

The appellate court sided with ALADS. The court noted that Penal Code 832.7(a) protects not only personnel records, but “all information obtained from those records.” According to the court, the fact that a deputy had an administratively founded allegation of misconduct was information from his or her personnel records, and was thus protected from disclosure absent compliance with the Pitchess procedure.  Because the information was covered by Penal Code 832.7, the Sheriff’s Department could not disclose it to prosecutors.

This case will impact law enforcement agencies statewide. It prohibits law enforcement agencies from providing Brady lists to prosecutors, and prevents them from disclosing the identity of individuals on such lists absent a court order compelling such disclosure.  Supreme Court review is a distinct possible.

Wednesday, July 19, 2017

David E. Mastagni Spars with Senator John Moorlach During Committee Hearing on Peace Officer PERB Jurisdiction

Mastagni Holstedt partner David E. Mastagni testified before the Senate Public Employment and Retirement Committee on Monday, July 10, 2017 regarding A.B. 530.

A.B. 530 is a PORAC supported bill introduced by Assemblymember Jim Cooper (D-Elk Grove), a retired sheriff's captain, that allows peace officers to file unfair practice charges at PERB.  This important bill clarifies existing conflicts regarding peace officer jurisdiction to pursue unfair practice charges and avoid the duplicative files required under current law for mixed units and charges affecting both the union and individual peace officers.

During his testimony, Mr. Mastagni and California State Senator John Moorlach from Orange County engaged in a spirited exchange over the efficacy of the bill.

Monday, July 17, 2017

FLSA Provides Individual Liability for Retaliation

In Arias v. Raimondo (9th Cir., June 22, 2017, No. 15-16120) 2017 WL 2676771, the Plaintiff, Arias, brought an action against his employer's attorney, Raimondo, alleging retaliation under the Fair Labor Standards Act (FLSA) arising from the attorney's plan to have Arias taken into custody by U.S. Immigration and Customs Enforcement (ICE) to derail his state court wage claims against his employer, Angelo Dairy.  Arias argued that the lawyer was acting as his employer's agent and retaliated in violation of 29 U.S.C. Section 215(a)(3) by enlisting the services of ICE to take Arias into custody at a scheduled deposition and then to remove him from the United States.

Raimondo’s sole legal defense is that because he was never Arias’s actual employer, he cannot be held liable under the FLSA for retaliation against someone who was never his employee.  The court held the FLSA's anti-retaliation provision was not limited to actual employers, since its unlawful for “any person” to discriminate against any employee for filing a complaint under the FLSA and retaliation claims were different from FLSA wage and hour claims. The court noted, “the FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others…. Such a statute must not be interpreted or applied in a narrow, grudging manner.”

The court clarified that Raimondo's liability was limited the retaliation claims, as a non-actual employer is not liable for substantive wage and hour claims.  In the public employment sector, this decision serves to strength the anti-retaliation protections for public employees enforcing their FLSA rights.  Supervisors who retaliate against public employees for bringing FLSA claims will be subject to individual liability even though they are not the actual employer.  Of course the anti-retaliation provisions also apply to employers, including public agencies.      

Thursday, July 13, 2017

Community Rallies After Mastagni Holstedt Targeted with Anti-Cop Vandalism


Law enforcement labor leaders and elected officials gathered Wednesday to take a stand against anti-law enforcement vandalism that was spray painted on the Sacramento headquarters of Mastagni Holstedt on Tuesday night.  The firm has flown the Thin Blue Line Flag under the American flag since February.  There were no incidents until Tuesday night.

David P. Mastagni explained to Fox40 that the vandalism appears to be in response to the firm lowering its Thin Blue Line flag to half mast to honor slain NYPD officer Miosotis Familia, whose funeral was Tuesday.

He said, "She was a beautiful young woman who had a full life ahead of her, she got shot in the head while sitting in a squad car, and the very least that me or any other citizen can do is respect and honor her for her service to her community.”

Interviewed in front of the vandalism, Mastagni noted, "those very words behind me are the words that have been chanted by anti-police antagonists across the country."  The vandalism occurred the same day as Officer Miosotis' funeral events, which some protesters tried to interrupt by blasting the song "F--- tha Police" at mourners.

Sacramento Police Officers Association President Tim Davis said, "It’s demeaning to our officers who put their life on the line everyday to protect our community.  We’re out here to tell officers that they are supported and that we’re not going to stand for this type of message."

Sacramento City Councilmember Steve Hansen helped out to remove the graffiti and told KCRA, "It's never okay and we all as a community have to take part in making sure that this doesn't continue."  Retired San Joaquin Sgt. Pat Withrow also came up to Sacramento to roll up his leaves and lend a hand.

Asked whether he'd take down the flag after the incident, Mastagni said, "Some people just have to stand up for what's right and that's why that flag is in the corner of that parking lot and it will continue to fly at half mast every single time an officer is killed in the line of duty."  The vandalism and the community response was also covered in the Sacramento Bee, the LA Times, and the local CBS affiliate.

Wednesday, July 12, 2017

Court Upholds Officer's Right to Administrative Appeal of Termination

In 2008, a citizen filed a complaint against San Francisco police officer Morgado. The office of citizen complaints investigated and recommended the Chief impose discipline. The Chief agreed and submitted a complaint against the officer to the City’s police commission. After a full evidentiary hearing which the officer participated in, the Commission decided to impose termination. The officer sued the City in Morgado v. City and County of San Francisco alleging that the City violated the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”) by failing to give him an administrative appeal of the final termination. The trial court agreed with the officer and issued an injunction vacating the termination until he had been provided the opportunity for an administrative appeal of the termination decision. The City appealed.

On appeal, the City argued that the evidentiary hearing at the Commission level effectively served as an administrative appeal of the Chief’s decision to discipline. By providing this evidentiary hearing, the City argued it fulfilled the purposes of the administrative appeal provision of POBR. The Court found a distinction between the Chief’s decision to recommend discipline and the termination actually imposed by the commission. The Court found that while there may be a right for an administrative appeal of an interim-step towards discipline, such as the Chief’s recommendation, ultimately this was not the relevant issue in this case.

The issue here was the ability to appeal the “final” imposition of discipline by the Commission. While the Commission’s evidentiary hearing fulfilled most of the purposes of an administrative appeal, the Commission’s processes ended when it made the final determination to impose discipline. The Court ruled the City should have provided an additional opportunity for independent re-examination of the imposition of termination. The Court stated that such an administrative appeal does not require the same full-scale evidentiary hearing, but merely the re-examination by someone not involved in the initial determination who will make written factual findings.

The City argued alternatively that the administrative appeal provision of POBR was unconstitutional because it restricted the constitutionally granted “plenary authority” of the City over the removal of its officers. The Court found no constitutional conflict, noting POBR constituted only a slight impingement. POBR did not proscribe reasons an officer could be terminated, rather it sets forth minimal procedural rights. The court upheld the Constitutionality of  POBR finding it was narrowly tailored to the purpose of promoting labor relations and created no substantive restrictions on the City’s ability to terminate employees. The Court of Appeal upheld the injunction and affirmed the trial court’s decision.

Friday, July 7, 2017

Fifth Circuit Rules Against Officer's Privacy Rights

Recently, in Coker v. Whittington, No. 16-30679 (May 23, 2017), the United States Court of Appeals, Fifth Circuit, ruled that Bossier Parish, Louisiana, did not violate the constitutional rights of two sheriff's deputies when it terminated them for violating the local Sheriff's Code of Conduct by moving in with each other's wives before getting divorced from their current wives. This ruling has troubling implications for the constitutional rights of law enforcement officers.

The decision, which was short on analysis and long on bias, ruled that the decisions in Obergefell and Lawrence did not apply to the facts of this case to protect the sheriff's deputies. The court held that public employees "necessarily shed some of their constitutional rights as a legitimate exchange for the privilege of their positions." The court also ruled that the Constitution does not protect "sexually inappropriate" conduct which would "mock marriage." 

Unusually, the court did not perform an analysis of whether the deputies' conduct had a nexus to employment. The court simply concluded that because officers' duties include preventing crimes like human trafficking and spousal abuse, the sheriff's deputies' conduct had the potential to "besmirch the reputation of the Sheriff's department and hinder its ability to maintain public credibility." The court did not explain how the crimes of human trafficking and spousal abuse related to the deputies' conduct as consenting adults. 

Interestingly, it is likely this case would have been decided differently in California. The Ninth Circuit has long held that questioning officers about their sex life and/or rendering employment decisions about their sex life violate privacy and associational rights interests and subject the agency to liability unde 42 U.S.C.A. § 1983. Thorne v. City of El Segundo (9th Cir. 1983) 726 F.2d 459, 471.

California's Constitution and state law provides heightened protection for privacy rights and a different view of what is "related to employment." Particularly, California courts have ruled that the critical question is not whether the officer's conduct violated the mores of the public or of the employing agency, but whether such conduct indicates an unfitness for employment with the agency (Warren v. State Pers. Bd., (1979) 94 Cal. App. 3d 95, 104, 156). Further, Yancey v. State Pers. Bd., ((1985) 167 Cal. App. 3d 478), held that “the overriding consideration is the extent to which the employee's conduct results in harm to the public service” (Id. at p. 487), and that "the Legislature did not intend to endow the employing agency with the power to dismiss any employee whose personal, private conduct incurred its disapproval” (Id. at 483.)" 

It is unclear whether the sheriff's deputies intend to appeal the decision at this time. Given the suspect nature of this ruling and Circuit split, the Supreme Court may decide the extent to which an Agency's inquiry into off-duty relationship of police officers exceed scope of state's legitimate interests and violated officer's constitutional rights.  Even if the Fifth Circuit's holding was adopted by the U.S. Supreme Court, such inquiries would still likely be deemed to violate California privacy rights.

PERB Petitions the California Supreme Court for Review of San Diego Initiative to Reduce Pensions

In June 2012 the voters of City of San Diego approved a citizen-sponsored initiative, the "Citizens Pension Reform Initiative" ("CPRI"), amended the City Charter to reduce pension benefits for certain employees of the City.  Unions successfully challenged the measure in PERB as an unfair labor practice.  The Fourth District Court of Appeal reversed the PERB's ruling in Boling v. City of San Diego.   Now the unions and PERB have petitioned for review in the Supreme Court.

Under the MMBA, ballot measures approved by local governing bodies and then by the voters are subject to meet-and-confer requirements. (People ex re. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591.) No published opinion had determined whether Seal Beach applies to citizen initiatives.  

The unions challenged the claim that the initiative was “citizen-sponsored” by arguing that the mayor had aided in the initiative's development and had campaigned for it. The unions also argued that the mayor was attempting to circumvent the MMBA by publicizing and campaigning for the initiative with the public in an attempt to cause them to take up the initiative. Accordingly, the unions argued that because the Mayor was the true driving force behind the CPRI, the ballot was transformed into a "governing-body-sponsored" ballot proposal. This would trigger the “meet and confer” provisions of the MMBA. 

PERB concluded that Seal Beach should apply in the present case based on the mayor’s statutory role in labor relations and common law agency rules supporting a conclusion that his support for the proposition was rendered in his official capacity.  PERB cited the fact that several people occupying elected and non-elected positions in San Diego's government provided support for the CPRI, and were essentially the driving force behind publicizing and writing its provisions. 

The appellate court disagreed holding there was no evidence the CPRI was ever approved by City's governing body (i.e. the City Council), which it cited as a requirement for the measure to be "governing-body-sponsored." The court explained that although the mayor and other City employees had drafted the “proposal”, the citizens ultimately led to it being placed on the ballot. The court further ruled that under the facts of this case, the mayor could not be found to be acting on behalf of the City Council under any agency theory. 

PERB and the unions filed a petition for review with the California Supreme Court.  If review is granted the Supreme Court will determine whether elected official and public agency personnel can circumvent the MMBA requirements to bargain over measures reducing pensions by obtaining voter signatures rather a  city council vote to get on the ballot.

Tuesday, June 27, 2017

CalPERS Changes Eligibility Rules for Industrial Disability Retirement

The California Public Employees’ Retirement System (CalPERS) posted Circular Letter 200-018-17 on March 30, 2017. Among other things, this Letter addresses changes to the eligibility determinations for certain local safety members applying for industrial disability retirement. 


In the past, CalPERS relied on the employer’s recommendation to verify eligibility of any member for industrial disability retirement. However, CalPERS will now independently evaluate whether certain members are eligible. The employer must obtain CalPERS’ determination of a member’s eligibility to apply for disability retirement before the employer starts the process of a disability determination for any of the following circumstances:

  • Disciplinary process underway prior to the member’s separation from employment.
  • The member was terminated for cause.
  • The member resigned in lieu of termination.
  • The member signed an agreement to waive his or her reinstatement right as part of a legal settlement (i.e., Employment Reinstatement Waiver).
  • The member has been convicted of or is being investigated for a work-related felony.
The Letter also imposes a requirement for local agencies to re-evaluate eligibility determinations for disability retirees under the voluntary service retirement age. The purpose is to verify whether the recipient remains physically or mentally disabled from the position which they disability retired for the condition(s) that they were approved for.


The Letter requires employers to provide all relevant personnel documents and medical records to CalPERS. This information will be used to conduct the second evaluation of a member’s medical incapacity and employment status.  However, providing such information to CalPERS creates a conflict for safety employers. For example, Penal Code section 832.7 prohibits employers from disclosing peace officer personnel records without the peace officer’s written consent or a Pitchess motion. Employers are also prohibited from disclosing medical information without written authorization from the employee.

Tuesday, June 13, 2017

Martindale-Hubbell Recognizes Mastagni Holstedt Attorney John Bakhit with Highest Honor

Martindale-Hubbell has recognized John Bakhit with its highest honor, an AV Preeminent rating, indicating a peer review for the highest level of professional excellence.  John is the Managing Attorney of Mastagni Holstedt's Ontario office.

Mr. Bakhit's practice centers on labor and employment law, where he handles complex claims arising out of the Public Safety Officers' Procedural Bill of Rights, the Firefighters’ Procedural Bill of Rights, the California Labor Code, the Meyers-Milias-Brown Act, complex contract negotiations with City, County, and State agencies, and other statutes protecting the rights of employees.

Prior to  law school, Mr. Bakhit served as an Oakland Police Officer working in Patrol and the Crime Prevention Unit, where he regularly wrote and served search warrants, worked undercover, and testified as an expert witness in court.

Tuesday, May 30, 2017

Supreme Court Overturns 9th Circuit Anti-Officer Use of Force Rule

In County of Los Angeles v. Mendez et al., the United States Supreme Court overruled the Ninth Circuit to put an end to a rule that let people bring lawsuits against officers even when the officers' use of force was reasonable.  Under the so-called "Provocation Rule," officers whose use of force is deemed reasonable, could still be held liable if they did something else, in violation of the 4th Amendment, to make the suspect respond in a way that required force.  The Supreme Court unanimously rejected this theory.

In the Mendez case, two deputies were looking for a wanted parolee when they entered a shack in the backyard of a home without knocking or announcing.  They did not have a warrant to enter the shack. It turned out Mendez lived in the shack.  Mendez got up with a gun in his hand when the officers entered and the officers reasonably believed their lives were in danger and fired in self-defense.  Mendez, who survived, sued, arguing that even if it was reasonable for the officers to shoot him, they should still be liable since they did not have a warrant to search his shack.  The Ninth Circuit agreed, applying its "Provocation Rule."

The Supreme Court, however, held, "The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”  The Court explained "the provocation rule... instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force, an approach that mistakenly conflates distinct Fourth Amendment claims." As a result, the Court concluded, "the provocation rule is incompatible with this Court's excessive force jurisprudence."

Wednesday, May 17, 2017

CalPERS Restoration of Service Credit and Compensation Earnable Upon Reversal of Termination for CalPERS School and Local Agency Members

Assembly Bill (AB) 2028 applies to all active California Public Employees’ Retirement System (CalPERS) school and local agency members. This recent legislation was introduced by Assembly Member Jim Cooper. AB 2028 allows active CalPERS school and local agency members who were wrongfully terminated to recover service credit and compensation earnable if their termination is reversed. This bill fixes a significant inconsistency in previous law, which treated school and local agency members differently than other state employees.

AB 2028 applies to members who were subject to a wrongful termination effective on or after January 1, 2017. Members who are reinstated by administrative or judicial order following the termination may now receive retirement benefits as though they were never terminated. Restoration of these benefits ensures that such members will be made “whole” following their disciplinary appeal.

Prior to AB 2028, school and local agency members could receive these benefits retroactively if they retired following the wrongful termination, but were later reinstated. This retirement condition was inconsistent with how other state employees were treated in the same situation. AB 2028 eliminates the inconsistency by making school and local agency members eligible to seek these same benefits, regardless of retirement.

AB 2028 provides that reinstatement of benefits will be effective as of the date from which salary is awarded. Employers are required to notify CalPERS within five days once an employee being reinstated after he or she had been wrongfully terminated.

Monday, May 15, 2017

Flores Overtime Ruling Stands: U.S. Supreme Court Denies San Gabriel's Petition for Review

On May 15, 2017, the United States Supreme Court denied the City of San Gabriel's petition for review of the Ninth Circuit decision holding the City of San Gabriel failed to include payments of unused portions of police officers’ benefits allowances when calculating their overtime rate of pay, resulting in an underpayment of overtime compensation. The Supreme Court only grants review in about 1% of petitions for review.  As a result the denial, the holding of the Appellate court now becomes settled law in the Ninth Circuit.

Appellate court also held that payments made on behalf of employees  to third party health care providers for benefits through the City's Flexible Benefits Plan could not be excluded from the overtime rate of pay.  The City's Flexible Benefits Plan was held not to be a “bona fide plan” under 29 U.S.C. § 207(e)(4) because over 40% of the City's total contributions were paid directly to employees rather than received as benefits. Additionally, the court ruled that the City’s violation of the Act was willful because it took no affirmative steps to ensure that its initial designation of its benefits payments complied with the Act and failed to establish that it acted in good faith.

Now that all appeals have been exhausted, California agencies that modified their overtime policies to comply with the Flores decision will have stability and certainty relative to their inclusion of waiver payments in overtime compensation.


Friday, April 28, 2017

Disability Retirement to Avoid Termination Qualifies as “Honorably Retired” for CCWs

A Riverside police officer who took disability retirement to avoid termination was “honorably retired,” according to the California Court of Appeal.  In Bonome v. City of Riverside, the court said the City must either grant the officer’s request for his retirement identification badge with a CCW endorsement, or provide a good cause hearing.

In June of 2012 an internal affairs investigation was opened with Officer Bonome as the subject officer.  On October 10, 2012 Officer Bonome suffered an on-duty back injury.  In May of 2013 the internal affairs investigation sustained allegations for failure to investigate and prepare a police report.  The Chief reviewed the report and declared his intention to terminate Officer Bonome.

The officer’s attorney was able to set out the Skelly hearing.  This allowed Officer Bonome to complete his application for industrial disability retirement.  The termination proceedings were suspended when the retirement became official.

Shortly after, the Assistant Chief sent notice to Officer Bonome’s attorney saying the Department would not issue a CCW endorsement.  Additionally, the Department would not offer a good cause hearing.  According to the Chief, Officer Bonome was not “honorably retired.”  The officer brought suit seeking to compel the Chief to issue the retirement badge with a CCW endorsement, or provide a good cause hearing.

The case centered on the correct definition of an honorably retired peace officer.  Penal Code §16690 says an honorably retired peace officer is any officer who has qualified for, and had accepted a service or disability retirement.  However, this does not include officers who agreed to a service retirement in lieu of termination.  According to the City, the Legislature must have meant to exclude all officers who retired to avoid termination.  The Court was not persuaded.

Officer Bonome argued, and the Court agreed, he was an honorably retired peace officer.  The statute only excludes peace officers who take a service retirement in lieu of termination.  According to the Court, an officer cannot choose to take a disability retirement to avoid termination.  Either an officer is disabled, and unable to perform his or her duties, or not.  Officer Bonome was evaluated after sustaining an on-duty injury to his back, and the evaluation recommended a disability retirement.  The Chief’s intent to terminate was irrelevant.

The Court noted, the City does not have to grant the CCW endorsement.  Penal Code §25920 says CCW permits for honorably retired officers can be denied or revoked.  However, to do this the City must show good cause as to why. 

Wednesday, April 19, 2017

Court of Appeal: No Requirement to Meet and Confer on Citizen Sponsored Initiatives

In City of San Diego v. PERBan appellate court said a citizen sponsored initiative to end pensions for new government employees did not require the city of San Diego (City) to meet and confer with the unions whose members would be affected.  

In November of 2010 then Mayor of San Diego Jerry Sanders announced his plan to place a citizen sponsored initiative on the June 2012 ballot.  The initiative was called the Citizens Pension Reform Iniative (CPRI).  CPRI, if passed, would amend San Diego’s city charter.  The main effect of this amendment was eliminating the pension program for specified future employees, and replacing the program with a 401(k) plan.  

Mayor Sanders, along with many prominent city employees, spent significant time and used considerable resources to gain support for the initiative.  Eventually, enough signatures were collected to place the matter on the June 2012 ballot.  Several unions demanded to meet and confer with City Council before CPRI was placed on the ballot.  If CPRI passed Mayor Sanders would have effectively ended future pensions for city employees without any discussion with union representatives. 

City Council declined to meet with the union representatives, citing a law which requires a citizen sponsored initiative to be placed on the ballot if procedural requirements were met.  Here, the requirements were met, so CPRI was placed on the ballot and passed by the voters.

Several affected unions filed an unfair labor practice charge with PERB.  The City claimed it had no discretion to keep CPRI off the ballot.  According to the City, Mayor Sanders was acting in his capacity as a private citizen.  Since this was was not a government action, they argued, there was no requirement to meet and confer.

PERB found Mayor Sanders was acting as an agent of the City.  Essentially, the City used one of its stronger political figures to create, support, and pass a citizen sponsored initiative.  By doing so the City bypassed the MMBA’s requirement to meet and confer, and ended the pension program for most of the City's future employees.  PERB found this to be a violation of the MMBA, and ordered the City to repay employees for lost compensation, including pension benefits.  The City appealed.

On appeal one of the main argument was over a 1984 case commonly referred to as Seal BeachSeal Beach declared, before a governing body can place a charter amendment on the ballot it must satisfy the meet-and-confer obligations under the MMBA.  The unions argued Seal Beach was applicable in the present case.  In other words, 33 years of precedent said governing bodies cannot bypass unions by placing charter amendments on the ballot which will impact the terms and conditions of employment.  The Appellate Court disagreed.

First, the decision dismissed any argument that mayor Sanders was acting as an agent of the City. Concluding CPRI was neither ratified by the City, nor an action of its agent, the court next addressed whether Seal Beach applied.  

The decision said, what took place in San Diego was different from Seal Beach.  CPRI was a citizen sponsored initiative.  In Seal Beach, the city council was using its own authority to place matters on the ballot without an initiative.  Thus, CPRI was not a proposal by a governing body.  Accordingly, there was no obligation to meet and confer.

PERB's decisions are given significant deference on appeal.  Their factual findings are considered final if there is any substantial evidence to support them.  Despite this strong presumption, the court overturned PERB's decision.

Stay tuned as the unions are likely to seek review in the Supreme Court of California.

Kathleen N. Mastagni Storm Testifies at Capitol on Peace Officer PERB Jurisdiction

On April 19, 2017, Mastagni Holstedt partner Kathleen N. Mastagni Storm testified before the Assembly Committee on Public Employees, Retirement, and Social Security on AB 530, a proposal to allow peace officers to file unfair practice charges at PERB.  The bill is sponsored by Jim Cooper (D-Elk Grove), a retired sheriff's captain.

In her remarks, Storm explained, "AB 530 is important because it affects my clients' ability to enforce their collective bargaining rights and resolves serious uncertainty about the law."  She said, "superior court is too costly and results in justice being denied because unions can't afford to sue [but] there is a high rate of resolution [at PERB] because the agency is adept at analyzing labor disputes."

She also addressed "the uncertainty in section 3511 [of the MMBA]."  She explained the law is vague because it exempts from PERB's jurisdiction "persons who are peace officers" but does not define that term.  "As things stand now, if a peace officer labor leader experiences retaliation, there would be parts of the case that the union has to bring at PERB and other parts the labor leader would have to bring separately in superior court.  This legislation solves these problems."

Kathleen N. Mastagni Storm manages the Labor Department at Mastagni Holstedt, APC.  Her practice focuses on unfair practice litigation, officer-involved shootings, and trial litigation in state and federal courts.

Thursday, April 13, 2017

California Supreme Court Grants Review of CAL FIRE Airtime Credit Case

On April 12, 2017, the California Supreme Court granted CAL FIRE Local 2881's petition for review of the First District Court of Appeal's decision on December 20, 2016 to uphold the elimination of the “airtime credit” benefit in the Public Employment Retirement Systems (“PERS”).

The most significant part of the previous decision by the  Court of Appeal for the First District was the court's decision to adopt the ruling in Marin Association of Public Employees v. Marin County Employees’ Retirement Association (MAPE) regarding the authority of the Legislature to reduce retirement benefits if they do not destroy the pension. The MAPE ruling broke with a half century of precedent holding that any modification of a pension resulting in a detriment must include an offsetting advantage.

The California Supreme Court has now granted review of both the MAPE and Cal Fire rulings. This is a significant opportunity to right the ship and overturn the damage these decisions did to the California vested rights doctrine.

Our office is currently representing two law enforcement associations in separate pension-related appeals in the First Appellate District, including the Alameda Deputy Sheriff's Association. 2017 continues to be an important year for determination of pension rights.

Thursday, April 6, 2017

Senate Bill Would Allow Unions to Recover Attorney's Fees in Some Cases

A bill in the State Senate could have a significant impact on public school employee unions.  Senator Pan (D-Sacramento) proposed SB 550.  The bill seeks to amend EERA section 3543.8.  If the amendment becomes law, unions would have the ability to seek attorney’s fees in actions over an employer’s failure to pay wages and benefits required by state law.

The key issue will be whether the action alleges that an employer did not pay state mandated wages or benefits.  If the union wins, and previously gave the employer 30 days-notice that they are seeking attorney’s fees, courts will be required to award reasonable fees and expenses to the union.  The employer would not be allowed to collect fees if the action does not prevail.

It is not clear which specific wages and fees are referred to in the bill.  One commentator has suggested SB 550 does not cover overtime for public school teachers because public employees are exempt from overtime laws in most cases.  Additionally, longevity pay and differentials are usually controlled by MOUs, and are not mandated by state law.


Saturday, March 18, 2017

Court of Appeal: Cadets Can't Be Fired for Getting Hurt In Academy

In Atkins v. City of Los Angeles, the Court of Appeal ruled that the California Fair Employment and Housing Act applies to pre-probationary public safety recruits attending academy training. The City of Los Angeles used to allow recruits who were injured during training to temporarily fill light-duty administrative positions until they either healed or became permanently disabled. At some point, the department decided to cease offering these positions and told five recruits who were on light duty that they needed to get medically cleared to return to full duty or they would be terminated. None of the recruits were able to do so and they were terminated or forced to resign. They sued and won a total of $12.3 million in future wages from the date of termination through to a hypothetical date of retirement.

Under FEHA an employer may not discriminate against "qualified individuals" on the basis of their disability. A "qualified individual" is a person who can perform the essential job duties of a position. Here, the recruits could perform the essential functions of the light-duty administrative position, but not the police recruit position. On appeal the City argued that the Court must determine whether the recruits are qualified individuals with respect to the recruit position, not the temporary administrative position. The City also argued that it had no duty to accommodate pre-probationary trainees.

The Court of Appeal found there was no distinction in the FEHA between pre-probationary employees, probationary employees, and regular employees with regard to either discrimination or the duty to accommodate. Thus, the Court upheld the failure to accommodate claim. However, the Court agreed that the proper test in a discrimination context is to examine whether the employees were "qualified individuals" with respect to the police recruit position, not the temporary light duty administrative position. Accordingly, the Court found that the employer did not discriminate against them. Ultimately the City was still liable for failure to accommodate, but the court did reduce the damages as they were too speculative.

Thursday, March 9, 2017

Court Blocks Public Officials Attempt to Remove Personal Identification from Website

In Publius v. Boyer-Vine the court granted a preliminary injunction preventing 14 Senators and 26 Assembly Members from demanding a website remove their personal information.  They were relying on Government Code §6254.21(c), which allows elected and appointed officials to demand personal information be removed from a website if they feel threatened.  The court held the statute violated the Plaintiff’s First Amendment Rights and the Commerce Clause. 

The Plaintiff was a Massachusetts resident and manager of the website Northeastshooters.com.  People on the website began an online discussion about a recent incident in California.  A blogger posted the names, home addresses, and phone numbers of California legislatures who supported several gun control bills.  Numerous legislators reported threats and demanded the California blogger remove the information pursuant to Government Code §6254.21.  The California blogger removed the information without incident.  However, during the discussion on Northeastshooters.com one user re-posted all of the personal information.  Legislative Counsel learned the information had been re-posted and demanded the Plaintiff remove the information.  He sought injunctive relief, claiming §6254.21 violated his First Amendment Rights and the Commerce Clause of the U.S. Constitution.

The court first determined the statute violated the First Amendment rights of the plaintiff because it was not narrowly tailored to serve a compelling state interest.  The statute did not attempt to prevent true threats.  There is a difference between publishing private information and public information. The statute did not address the difference.  In this case, the information posted on line had come from public sources.  Additionally, it was underinclusive because it did not prohibit print media from disclosing personal information. 

The court also held the law violated the Commerce Clause.  The Plaintiff was a resident of Massachusetts being regulated by a California statute.  Regulating interstate commerce is a power held by the federal government.  The statute attempts to regulate information posted to the internet.  The court noted it is almost impossible for a state to regulate internet activities without projecting the legislation into other states.  The court found the practical effect of the statute was to attempt to control conduct outside of California.  Because of this practical effect the statute was found to violate the Commerce Clause.


Monday, March 6, 2017

Fourth Circuit Upholds Semi-Automatic Assault Weapons Ban

Recently, in Kolbe v. Hogan (2017) --- F.3d ---- , the 4th Circuit Court of Appeals upheld a Maryland law banning certain semi-automatic assault weapons and magazines in excess of ten rounds. The Court ruled that the 2nd Amendment did not apply to protect these weapons. The court decided they were, “weapons that are most useful in military service” as described in the United States Supreme Court decision of District of Columbia v. Heller (2008) 554 U.S. 570. The Court also ruled that even if the 2nd Amendment applied, the law would be constitutional. 

Maryland's law prohibits semi-automatic rifles with folding stocks, a grenade or flare launcher, or a flash suppressor. The law also prohibits rifles that utilize magazines that can hold more than ten rounds and rifles with a total length of less than 29 inches. The law also banned semi-automatic shotguns with a folding stock and shotguns with a revolving cylinder. 

Proponents of the law gave evidence regarding the history of the prohibited weapons as weapons designed for use by the military. The evidence paid special attention to the history of the AR-15. They also presented evidence which suggested that there is little difference in the automatic and semi-automatic versions of the banned weapons. This was the proponents' attempt to prove that the semi-automatic weapons can be more lethal in certain situations. 

Proponents of the law also argued that keeping magazines under ten rounds would aid victims in an active shooter situation. They reasoned that it would greatly increase the number of opportunities for victims to disable the shooter or escape. 

Those challenging the law argued that the prohibited weapons have a lawful use for self-defense, hunting and shooting competitions. The parties gave evidence that large capacity magazines are necessary for self-defense and the defense of loved ones. They argued that a person under the stress of an attack has a tendency to miss shots and tends to have difficulty reloading. Accordingly, challengers to the law argued that large capacity magazines are necessary for proper self-defense.  

Arguments were also made that the State did not have a legitimate purpose for the ban and were simply trying to ban specific weapons. Challengers pointed out that the law did not ban some semi-automatic weapons which could be modified to be similar to those banned by the law. They also pointed out that these weapons cause a small number of deaths each year. This was especially true when compared to yearly deaths caused by hand guns and other deadly weapons. 

Ultimately, in a split decision, the 4th Circuit sided with the proponents of the law. The Court found that the banned weapons and magazines were “weapons that are most useful in military service." The 4th Circuit held that such weapons are not protected by the 2nd Amendment under Heller

Additionally, the Court ruled that even if the 2nd Amendment applied, the law was constitutional. The court stated that this was because of the compelling state interests in public safety and the reduction of crime. 

Thursday, March 2, 2017

CA Supreme Court: Public Records Act Applies to Public Business Conducted on Personal Accounts

The California Supreme Court ruled today that public officials' communications about public business is a public record, even if officials use personal accounts.  In City of San Jose v. Ted Smith, a local activist sought communications about a redevelopment project in downtown San Jose.  He made a request under the California Public Records Act (CPRA).  The request included any voicemails or emails from the Mayor of San Jose, the members of the City Council, and any staff regarding matters concerning the City of San Jose.  Initially, the trial court determined the requests to be valid.  The City appealed.

Then, the Court of Appeal reviewed the language of the CPRA.  The court ruled information held on private devices is not subject to CPRA.  The court reasoned the CPRA defines public records as writings owned, used, or retained by any state or local agency, not individual. The court believed this means individuals are not covered by the CPRA.

The California Supreme Court did not find this reasoning persuasive.  The legislative intent of the CPRA was to create a right of access to public information.  If the public document does not fall into a narrow exception the standard should be disclosure.  One notable exception is a law enforcement officer’s personnel file.

The Court reasoned the CPRA should be read broadly and construed to further the people’s right to access public documents.  If a document is used by a city official in conducting city business the document is retained by the city.  This is true regardless of where the document is stored.

The City's argued it should not have to look through personal email accounts for public records because it was too hard and would cost money.  The Court was unconvinced by this argument and held he government agency is required to disclose all records they can locate “with reasonable effort.”  However, it cannot avoid disclosure by declaring a request to be too burdensome.

Mastagni Holstedt filed an Amicus Curiae brief in the case representing more than a dozen public safety labor associations.  The brief emphasized how some high ranking public officials use their personal accounts to evade the requirements of the CPRA, especially in the context of collective bargaining and labor relations.  For example, during the Stockton bankruptcy, city officials communicated with purportedly independent outside consultants about modifying to their findings and recommendations using personal emails.  Prior to today’s ruling, government agencies could shield such information from disclosure under the CPRA.  Today’s decision puts an end to these practices.  Moreover, the Court's interpretation of the CPRA will likely be extended to information requests under public sector bargaining laws, such as the MMBA.  

From a labor perspective, permitting public officials, such as City managers, to bypass open records laws by using personal electronic devices would have adversely affected union access to information necessary to represent their members.  

The Court also provided guidance to public agencies for complying with these obligations while protecting privacy rights.  Notably, the Court recommended agencies require that employees use or copy their government accounts for all communications touching on public business.  In terms of searches, the agencies can comply by communicating the request to the employees and "then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material."  Attorneys David E. Mastagni, Isaac S. Stevens, and Jeffrey R. A. Edwards represented these amici.


Wednesday, February 8, 2017

Mastagni Holstedt is Proud to Fly the Thin Blue Line Flag

Mastagni Holstedt is proud to display a Thin Blue Line Flag outside its Sacramento headquarters. The Thin Blue Line Flag is displayed under the American flag on a custom built 30-foot flag pole at the corner of 19th Street and I Street in Sacramento.


"The Thin Blue Line Flag represents our appreciation of and commitment to protecting law enforcement officers statewide," says David P. Mastagni.  "Law enforcement officers face new and unprecedented threats to their personal safety and we are proud to stand in solidarity with them, as we have for more than 40 years," he said.  Mastagni Holstedt is the largest law firm in California specializing in representing public safety professionals and their labor associations, with offices in Sacramento, Los Angeles, the San Francisco Bay Area, and the Inland Empire.

Wednesday, February 1, 2017

Police Department Social Media Policy Found Unconstitutional

Liverman v. City of Petersburg (2016) 844 F.3d 400, involved two police officers who were disciplined based on two posts they made on Facebook. The two officers made posts that were critical of the administration’s practice of promoting inexperienced police officers into management positions. The City’s policy prohibited employees from: 1) making comments that would reflect poorly upon the Department or the City and 2) making negative comments about the operations of the Department. The first policy attempted to qualify itself by essentially stating that the First Amendment would still be observed and officers could comment on issues of general or public concern so long as those comments did not interfere with working relationships, efficient work flow, or undermine public confidence in the Officers.

The comments were purportedly divisive within the department and some patrol officers sought transfers away from the two officers. The two officers were given an oral reprimand and six months probation, but were told that the discipline would not affect their eligibility for promotion. However, several weeks later, a department chief changed the qualifications for promotion such that officers on probation were prohibited from promoting. When the two officers sent notice of their intent to challenge the disciplinary action, they were immediately subjected to several additional investigations which would have resulted in termination. One of the officers retired before he could be terminated.

The two officers contested the social media policy in civil court arguing that the policy violated the First Amendment, and thus, their discipline and the subsequent retaliation should be overturned. The Court recited First Amendment law stating that public employees generally do not lose their rights to speak on matters of public concern, but the speech must be balanced against the interest of the state in promoting the efficiency of the public services it provides. The Court found that the social media policy at issue explicitly restricted speech criticizing the department. 

The Court found it significant that the officers chose Facebook as their forum of choice which the court compared to writing into a newspaper's opinion section. By choosing Facebook, they were clearly showing an intention to communicate their concerns to the public, outside of the employment context. The Department did not establish a significant enough reason other than general concerns of divisiveness as to why such speech should be restricted. The “negative comments” policy did not contain the qualification which would permit comment on matters of public concern and was thus, unconstitutionally overbroad. Accordingly, the discipline against the employees was overturned and the Chief who imposed the discipline was denied qualified immunity because the law in this area was well-established.

Monday, January 30, 2017

Third Appellate District Upholds Elimination of Pension Pick Ups

In San Joaquin County Correctional Officers' Association v. County of San Joaquin the Court of Appeal upheld a County’s ability to force employees to pay a portion of cost of living (“COLA”) adjustments to their retirement program. This case involved two laws governing public employee retirement, the County Employees Retirement Law of 1937 (“CERL”) and the Public Employees’ Pension Reform Act of 2013 (“PEPRA”).

Prior to PEPRA’s passage, the default retirement program arrangement was that counties and county employees shared the cost of COLA contributions to retirement programs. However, as an option, CERL permitted counties to pay all of the cost of COLA contributions of its employees if it chose to do so. This was known as a “pickup.” This pick up was a common strategy employed by Counties to provide a benefit that was less expensive than a salary adjustment.  In 1975, San Joaquin was one of the counties that agreed to pay the employee share of COLA contributions as part of some of its MOUs.

PEPRA was passed in 2013 to reduce unfunded liabilities in public employee retirement systems. One of PEPRA’s provisions seeks to eliminates the pickups of the employee share of COLA contributions, but does not take effect until 2018.

In 2012, the County negotiated a new MOU with the San Joaquin County Correctional Officers’ Association which eliminated the pickup. The membership voted the MOU down and impasse procedures were engaged. Once impasse was reached, the County unilaterally imposed the elimination of its pick up as part of last best and final offer. The Association challenged the imposition arguing that PEPRA shielded them from such a change until 2018.

Rejecting the Association's challenge, the Court found counties have always had the power to eliminate or reduce pickup under CERL. The CERL permitted the pick up employee costs of COLA contributions, but did not require the pickups nor restrict the employers ability to modify or eliminate them. The court concluded, “In short, the County always has had the power to eliminate the COLA pickup, subject to labor laws, and those laws permitted the county to do so in the event of a bargaining impasse, which occurred. Nothing in PEPRA limited the County’s power in this regard.”

Interestingly, the court cited Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. (2016) 2 Cal. App. 5th 674, 681, review granted Nov. 22, 2016, (MAPE) in explaining "the historical backdrop animating recent pension reform legislation in California", but "express[ed] no view" over MAPE's "interpretation of precedent regarding the validity of changes to retirement benefits."

Thursday, January 26, 2017

First Appellate District Challenges Vested Rights Doctrine in Upholding Elimination of Airtime Credit


In Cal Fire Local 2881 v. California Public Employees’ Retirement System, the Division Three of the First District Court of Appeal upheld the elimination of the “airtime credit” benefit in Public Employment Retirement Systems (“PERS”). Airtime credit was a benefit available to CalPERS and some other PERS programs that allowed members who had already earned five years of service credit, to purchase another five years of “nonqualified retirement service credit.” The record reflected that PERS had been under charging for the benefit.  In 2013, the Public Employees’ Pension Reform Act of 2013 (“PEPRA”) was passed in what was billed as an effort to reign in unfunded pension liabilities. One of the provisions of PEPRA eliminated the ability to purchase airtime credit.

The court considered whether the ability to purchase airtime credit was a “vested benefit.” The court started its analysis with a general presumption against the granting of a vested benefit, unless its text or legislative history evidence an intent to be bound. Applying the reasoning in Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, the court held “there is nothing in either the text of the statute, or its legislative history, that unambiguously states an intent by the Legislature to create a vested pension benefit. This demonstration of intent, as we explained above, is required by California law.” The court found no such intent with respect to airtime.

Further, the court held no right was destroyed, noting PEPRA provided members with a seven month window to purchase the service credit, and that such applications would be honored if they were submitted prior to December 31, 2012. "Thus, nothing in the revised statutory scheme immediately destroyed plaintiffs’ right to purchase the airtime service credit ... To the extent plaintiffs lost out on the opportunity to purchase the airtime service credit, such loss was, accordingly, a product of their own doing."

The court also held that the elimination of airtime did not destroy any benefit because the cost of airtime was always intended to be borne entirely by the employee.  Because the benefit was established as cost neutral to the employer, "the employees, not the state, paid for this benefit" and therefore the court held "this simply is not a case where the state provided a retirement benefit to its employees in exchange for their work performance, and then took the benefit away."

Most significantly, the court endorsed Division Two of the First District's holdings in Marin Association of Public Employees v. Marin County Employees’ Retirement Association (MAPE) regarding the authority of the Legislature to reduce retirement benefits s long as they do not destroy the pension.  This superfluous basis for upholding the elimination of airtime is striking given that the Supreme Court had granted Review of MAPE.

MAPE broke with a half century of precedent holding that any modification of a pension resulting in a detriment must include an offsetting advantage.  On November 22, 2016, the California Supreme Court issued an order granting review of MAPE, holding, "The petition for review is granted. Further action in this matter is deferred pending the decision of the Court of Appeal, First Appellate District, Division Four, in Alameda County Deputy Sheriff's Association et al. v. Alameda County Employees' Retirement Association et al., A141913
 
Although the elimination of airtime is not particularly significant, the court's unnecessary adoption of the MAPE reasoning in the face of Supreme Court review could affect broader legal principles involving the California vested rights doctrine.  Our office currently is representing two law enforcement associations in two separate pension related appeals in the First Appellate District, including the Alameda Deputy Sheriff's Association.  2017 is shaping up to be an important year for determination pension rights.


Tuesday, January 24, 2017

U.S. Supreme Court Bolsters Qualified Immunity

In White v. Pauly, the Supreme Court issued a unanimous per curiam (unauthored) opinion overturning a lower court's denial of qualified immunity to a police officer in an excessive force case. Law enforcement officers are frequently sued for money damages where they are alleged to have violated a person's constitutional rights in the performance of their duties. Qualified immunity protects officers from such lawsuits where the law they violated isn't "clearly established."

Officer White arrived late to an ongoing police action outside the home of Daniel and Samuel Pauly. Upon approaching the house already surrounded by two other officers, Officer White heard Daniel and Samuel Pauly yelling “we have guns,” followed by shots being fired from the house. Shortly after, Samuel opened the front window and pointed a handgun in Officer White’s direction. After another officer fired several shots at Samuel and missed, Officer White shot and killed Samuel.

Relying on the language of Tennessee v. Garner as clearly establishing the law that officers must give a warning where feasible, the Tenth Circuit denied Officer White qualified immunity reasoning that a reasonable officer in White's position would have known he should have given a warning before shooting despite the seriousness of the threat.   The appellate court  “concluded that a reasonable officer in White’s position would have known that, since the Paulys could not have shot him unless he moved from his position behind a stone wall, he could not have used deadly force without first warning Samuel Pauly to drop his weapon.’

The Supreme Court reversed, finding no no clearly established law in this case. "Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed. No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here."  The appellate court failed to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.

This ruling represents a significant win for law enforcement. In denying qualified immunity to officers, trial courts must consider the particularities of the case rather than relying on general legal principles as providing officers with clear notice their actions are unconstitutional. The Court explained, "[t]oday, it is again necessary to reiterate the longstanding principle that 'clearly established law' should not be defined 'at a high level of generality.'" Otherwise, qualified immunity would be converted "into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”

Wednesday, January 18, 2017

California Appeals Court Holds That Public Speech Protection Law Cannot Be Used To Stifle Suit Against County


In a victory for public employees, a California court of appeals shut down an attempt by the County to strike a sheriff's deputy's lawsuit against the county alleging that they retaliated against him for asserting his privacy rights in his medical record. While this case is unpublished and therefore not controlling authority, it signals a warning to employees who might attempt to use California's anti-SLAPP rules to strike down lawsuits asserting MMBA and POBR violations.

By way of background, California's "anti-SLAPP" or anti-Strategic Lawsuits Against Public Participation is a civil code section used to punish those who bring lawsuits which are intended to stop or retaliate against speech made during "official proceedings." The idea behind anti-SLAPP is to prevent persons from stifling protected free speech by filing a lawsuit. However, public employers often attempt to classify their disciplinary proceedings as "official proceedings" and their recommendations for discipline as "protected speech." While this is a perversion of the spirit and purpose of the law, that does not stop management from trying to use it.

In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2016) Second District Court of Appeal, Case No: B260584, A deputy injured himself at work and became addicted to pain killers for two years. He later entered a drug dependency treatment program and returned to full duty. After a later back surgery he again obtained pain medications from several different physicians. At some point, an unknown person from the Sheriff's Department accessed his record of prescriptions in the database and saw that he had several prescriptions from different doctors. The Deputy then discarded all of his medications.

The Deputy was meeting all of his performance requirements, but shortly after the unauthorized access, as many as six supervisors asked to get consent to access his prescription information in the database. They also asked him to voluntarily submit to a psychological fitness for duty evaluation. The County Occupational Health Department requested that he submit to a fitness for duty examination given his refusal to provide access to his prescription record. When he met with the psychologist, the doctor refused to do an exam unless he provided his medical records. The deputy was then ordered to take a medical leave of absence and was refused the opportunity to return to work. 
 
The Association sued alleging, among other things, violation of privacy rights and retaliation for asserting his privacy rights. The County moved to strike all claims on anti-SLAPP grounds arguing that the referral of the plaintiff to Occupational Health was protected speech and the process by which the County required the Plaintiff to submit to a fitness for duty test was an official proceeding for purposes of SLAPP. The trial court agreed and ordered the Plaintiff to pay the defendant’s costs of suit.

The appellate court noted that the meaning of "official proceeding" continues to elude definitive judicial interpretation, but should generally be limited to proceedings of a public nature and that this case was likely an internal matter, not a public proceeding. However, the appellate court did not need to reach that question because the claims in this case did not arise out of that process anyway. SLAPP case law draws a distinction between speech made in connection with an official proceeding, and the decision made because of that proceeding. The thrust of plaintiff’s arguments stemmed from the decisions made by the Department after the proceeding, not from the statements themselves. Thus, SLAPP was inapplicable here.

Monday, January 16, 2017

Third Appellate District Upholds Award of Penalties for Late Advance Disability Pension Payments

In the recently decided Gage v. Workers Compensation Appeals Board, (CA3, Nov. 22, 2016 No. C081618)  the Court upheld the ability for employees to receive penalties for late advance disability pension payments. In this case, a Sacramento County Sheriff’s Deputy, represented by Greg Gomez of Mastagni Holstedt, APC, sustained a job-related injury and applied for an industrial disability retirement. In cases like these involving peace officers, the injured party can also apply for advance disability pension payments in order to cover living expenses while the disability retirement application is being decided.

Here, Gage petitioned for these advance payments and applied for industrial disability retirement on March 6, 2015. When payments did not arrive, Gage petitioned for late payment penalties against the County on June 2. The County claimed not to have received the application until June 11. The County also asserted that the Workers Compensation Appeal Board (WCAB) did not have authority over advance payments of pension because that would fall under another a different law (County Employees Retirement Law of 1937), and thus it could not apply penalties.

While this issue was being decided, the County continued to stall payments due to some additional technicalities (legal joinder). On June 29, it finally approved payment of benefits. Gage filed a petition for penalties because the benefit check wouldn’t arrive until July 2, almost 4 months after her initial request.

A workers compensation judge initially agreed with Gage that disability pension payments were considered compensation, and thus were subject to penalties for late payment. The County appealed arguing that advance pension disability payments were an obligation of the retirement system, and thus not subject to the penalty. On appeal, the WCAB overturned the workers compensation judge’s initial decision.

When the case was finally appealed to the Third Appellate District, the Court explained that the workers compensation law was intended to be liberally construed for the purpose of extending benefits to those injured in the course of employment. This includes making sure that those in law enforcement are given all the rights attendant to the workers compensation law. The advance disability pension payments are specifically provided to help officers who would otherwise have difficulty making the monthly bills if they had no income due to being injured. In fact, the payment of such benefits was made mandatory in 2002.

The Court also discredited the County’s argument that under the applicable code section, the repayment of retirement benefits was outside of WCAB’s jurisdiction. The Court stated that while the repayment of retirement benefits once disability retirement was approved was outside the scope of the WCAB’s jurisdiction, that did not bar it from asserting penalties on late payments, because such payments are considered compensation and therefore fall under WCAB’s jurisdiction. While the court remanded the case to determine if the delay in this case was sufficiently unreasonable such that penalties were required, this case still stands as a big win for employees seeking disability retirement. Mastagni Holstedt, APC is requesting that this case be published so that it has precedential value.

Mastagni Holstedt, APC is privileged to have represented the Sacramento Deputy Sheriffs Association and Ms. Gage in obtaining this important result. Greg Gomez of Mastagni Holstedt, APC represented Ms. Gage in this matter.


Court Allows Officer's Retaliation Lawsuit to Proceed Over Anti-SLAPP Motion

In Armendariz v. City of Burbank, the Second Appellate District held that a Burbank Police Officer’s retaliation lawsuit against his employer could go forward, despite the City’s attempt to strike the complaint on anti-SLAPP grounds. The Burbank Officer sued his employer alleging that they had terminated him due to his outspoken criticism of the Department’s leadership decisions. The City asserted that their internal affairs investigation against the Officer was protected by the first amendment and thus, the Officer’s lawsuit should be stricken.

Specifically the Officer asserted in his complaint that he complained to his department about unlawful arrest and citation quotas being imposed on officers. He also complained repeatedly and publicly about the Chief of Police’s management of the department and new disciplinary guidelines while acting in leadership positions with the Police Officer’s Association. He also complained about the Department's decision to fill senior positions within the Department with outside officers and without complying with civil service protocols. These statements were also made to the press. Not long after these statements and complaints, the Department initiated a series of internal affairs investigations into the Officer.

The general purpose of California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute is to protect against lawsuits which are aimed at preventing or punishing protected first amendment speech. Part of this protection extends to statements made in connection with an “official proceeding authorized by law.” In recent years, cities and counties have been asserting that their internal affairs investigations are such protected proceedings. When employees sue their employers after being terminated due to an internal affairs investigation, employers often try to use anti-SLAPP to shut the lawsuit down.

In order to strike claims in a lawsuit using anti-SLAPP, a defendant must show that the claims of the plaintiff arise out of protected activity. Once demonstrated, the plaintiff may only continue its case if it can establish that its claims have minimal merit. In Armendariz, the court made clear that anti-SLAPP can only be used to strike the individual claims to which the protection applies; it does not destroy the entire complaint if it contains other claims.

In this case, the court decided that the Officer’s claims of retaliation did contain allegations relating to protected activity (the internal affairs investigation). Thus, statements or writings generated in connection with the investigation were protected activity within the meaning of the anti-SLAPP statute. However, the Officer was able to establish that his claims had at least minimal merit and likelihood of success. This was due partly to the City’s almost complete failure on appeal to address the Officer’s arguments and evidence submitted, offering only a single paragraph of bare argument in response to over 220 pages of evidence.

The City offered several other token defenses such as failure to exhaust administrative remedies, governmental immunity, and litigation privilege, all of which were denied. Governmental immunity did not apply because while a government entity is protected from vicarious liability from its employee's actions, this protection does not apply when the Officer is seeking to hold the City directly responsible for its violations of the law. Litigation privilege, which precludes liability arising from a publication made in a judicial proceeding, did not apply because the Officer’s claims arose out of the City’s actions of termination, and not necessarily from its statements during the IA process. 

Accordingly, the court allowed the Officer’s lawsuit to go forward and permitted him to recover his costs on appeal.  Although the officer's suit survived the anti-SLAPP motion, this case also illustrates the difficulties presented by the anti-SLAPP statute when challenging adverse employment actions arising from internal affairs investigations.