In Blue v. California Office of the Inspector General
2018 WL 2147858, California’s Inspector General successfully denied the right
of several correctional officers to be represented during interviews conducted
as part of an institutional review of High Desert State Prison.
During the summer of 2015, the California Senate Rules
Committee issued a letter to the State Inspector General authorizing his office
to review the practices at High Desert State Prison. The primary focus of the
review was the prisons practices regarding excessive use of force against
inmates.
As part of the investigation, five correctional
officers—who previously worked at the state prison—were interviewed. Each of
the former employees requested representation during each interview. All five
of their request were denied. They were told they were not under investigation
and nothing said would be used to pursue an investigation, or recommend an
investigation be opened. Despite the assurances, several of the officers voiced
concern that questions asked at the interview may lead to punitive action for
failure to report misconduct.
After the interviews concluded, the five former High
Desert State Prison Employees filed suit alleging that the Inspector General
violated the Public Safety Officers Bill of Rights (“POBRA”) by refusing each
employee’s request to be represented during the interviews. In response, the
Inspector General’s Office filed an Ant-SLAPP Motion.
California’s Anti-SLAPP statue allows a defendant to move
for dismissal of a lawsuit if it can successful argue that the suit was brought
in order to deny a person’s right to free speech. Specifically, the Act
provides that “a cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in connection
with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability
that the plaintiff will prevail on the claim.”
In granting the Inspector General’s Anti-Slapp Motion,
the Appellate Court held that review of High Desert State Prison concerned a
topic of widespread public interest and the report issued to the Senate
contributes to a public discussion of the topic. The Court also commented that
“had the defendants known they would be required to defend against meritless
claims arising out of their interviews with the individual correctional officer
plaintiffs without the ability to have those claims stricken at an early stage
in the proceedings under the anti-SLAPP statute, it is entirely possible they
would have conducted the review without interviewing those plaintiffs at all,
and thereby would have lost valuable information forming at least part of the
basis for a number of the OIG’s recommendations regarding policy improvements
at High Desert State Prison. Simply put, public discussion of this important
issue may well have been chilled.”
Finally, the Court stated that “none of [the five
officers] had a reasonable basis to believe their interviews with the
[Inspector General] could lead to punitive action against them.” Thus, there
was no basis for invoking POBRA rights. However, the Court failed to address
how the act of simply allowing a representative into that meeting would “chill
free speech.”
This case illustrates the pressing need to amend the Anti-SLAPP statute to exclude public sector labor litigation. The Anti-SLAPP statute was enacted to prevent lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. This case is the latest in a line of cases subjecting public employees and their unions to the threat of significant fee liability when they seek to enforce labor statutes.
