On
February 26, 2025, the Public Employment Relations Board (“PERB”) issued a
decision to reverse a PERB Administrative Law Judge’s (ALJ) ruling that the City
of California City failed to follow disciplinary procedures when issuing
Notices of Termination for three police officers represented by the California
City Police Officers Association (“Association”). Mastagni Holstedt
partner Kathleen Mastagni Storm and associate attorneys Taylor Davies-Mahaffey
and Spencer Shure litigated one of the PERB cases (County of Sonoma (2023)
PERB Decision No. 2772Ma) that this decision cites to.
Scope
of Representation
Under the Meyers-Milias-Brown Act (MMBA), a public employer cannot unilaterally change the terms and conditions of employment without affording the Association advanced notice and an opportunity to bargain. PERB has historically held that a decision is within the scope of representation if the decision has “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees” that “arises from the implementation of a fundamental managerial or policy decision.”
In County of Sonoma (2023) PERB Decision 2772Ma, PERB held that the County of Sonoma violated the MMBA and PERB regulations by placing a measure that dealt with peace officer disciplinary procedures on a November 2020 ballot without providing the exclusive representatives of its non-managerial peace officers (SCLEA and Sonoma DSA), notice or an opportunity to meet and confer over the measure and its effects. In this decision, PERB held that since the measure increased the potential for discipline and altered the discipline process, the measure significantly and adversely affected the employees’ working conditions and thus fell under the scope of representation. This decision highlights the fact that changes in disciplinary procedures are within the scope of representation.
Facts
& Procedural History of California City
On
September 14, 2019, three California City police officers were involved in a
use of force incident during an arrest. After the investigation, the Police
Chief issued a Notice of Termination to the three officers.
On
February 5, 2021, the Association filed an unfair practice charge against the
City, alleging that the City failed to follow disciplinary procedures when the
Division Commander did not review the investigation and provide a
recommendation regarding discipline. A
PERB ALJ ruled that the City violated policy and ordered the City to rescind
the termination notices.
On
November 5, 2021, the City reinstated the police officers and subsequently
placed them on administrative leave while the Division Commander reviewed the
investigations. On January 18, 2022, after considering the Division Commander’
s recommendations, the Chief issued each officer a Notice of Intent to
Terminate. On February 2, 2022, the officers informed the City that they waived
their Skelly rights and wished to proceed directly to an appeal of their
terminations.
On
June 7, 2022, two of the officers filed a lawsuit in state court, alleging that
the City violated rights afforded by the Public Safety Officers Procedural Bill
of Rights Act (“POBR”). A jury found that the City did not violate the
officers’ rights under POBR. The City Manager then issued each officer a Notice
of Termination.
In
response, the Association filed an unfair practice charge alleging that the
City made an unlawful unilateral change to disciplinary procedures when the
City Manager issued the Notices of Termination instead of the Chief of Police,
as is prescribed in the Police Department Policy Manual. The ALJ held that the
City violated the MMBA when it deviated from the Department Policy Manual by
having the City Manager issue the officers’ Notices of Termination. The City
filed exceptions asking PERB to reverse the proposed decision. The City
essentially argued that the decision from the City Manager to terminate the
officers was not under the scope of representation under the MMBA. The City reasoned
that the City Manager’s decision did not have a significant and adverse effect
on the officers’ terms and conditions of employment because it was highly
likely the officers were going to be terminated by the City after waiving their
Skelly rights. PERB agreed with the City.
PERB’S
Reasoning for Their Decision
PERB
held that the ALJ used the correct standard, but PERB did not agree that the
change had a significant and adverse effect on wages, hours, or working
conditions for this specific case. Here, after the City issued
the Notices of Intent to Terminate, the officers’ waiver of Skelly rights meant
it was exceedingly likely that Notices of Termination would follow. The Chief
evaluated the investigation and the Division Commander’ s recommendations and
issued the Notices of Intent to Terminate on January 18, 2022. When the
officers waived Skelly rights, under department policy, there was no other
information for the City to consider. A new Chief of Police or the City
Manager’ s issuance of the Notices of Termination does not alter the underlying
determination already made by the chief in the Notices of Intent to Terminate.
Thus, the officers’ Skelly waiver left them without any pre-termination basis
to challenge the Notices of Intent to Terminate.
Lesson
Learned from California City
It is important to note that this case is non-precedential, which means that PERB’s decision applies only to the parties involved in the case. This case shows us how important it is to never waive your right to a Skelly hearing even if the odds of success are low. Skelly hearings are an opportunity to address the allegations and provide mitigating information to the Skelly Officer. In this case, had the officers presented their claims in a Skelly hearing, the Chief of the Department would have been required to consider all information received regarding the recommended discipline. Therefore, the decision to terminate the officers from the City Manager would undeniably be a deviation from the established Skelly procedure. PERB even states in California City that had the officers not waived their Skelly hearing, their decision would have likely been different.
You can read the Sonoma PERB decision referenced above and handled by Mastagni by clicking here.