California Public Safety Labor Blog

Ninth Circuit Finds for Former OCSO Lieutenant on Political Retaliation Claims

2012-02-24T08:30:00.000-08:00

In Hunt v. County of Orange (February 13, 2012) 2012 WL 432297, the Ninth Circuit found the Orange County Sheriff’s Department violated a lieutenant’s constitutional rights by demoting him for allegedly bringing discredit to the Department after he ran against former Orange County Sheriff Mike Carona.

A lieutenant with the Orange County Sheriff's Department ran for sheriff against the incumbent sheriff and lost. During the election the lieutenant made statements criticizing the incumbent's performance and accused the sheriff of corruption. After the election was over, the Department placed the lieutenant on paid administrative leave pending an investigation into his speech and conduct during the campaign and gave him notice of demotion for violation of department rules and for bringing discredit upon the department. The lieutenant then filed a claim against Carona alleging violations of his First and Fourteenth Amendment rights.

Normally, an elected official cannot retaliate against a public employee for his or her political beliefs or activities. However, the “policymaker exception” allows elected officials to appoint “some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for.” As a result, if an employee is a policymaker, an elected official can retaliate against him for political activity.

To decide whether this exception applied in this case, the court evaluated whether "the hiring authority can demonstrate party affiliation is an appropriate requirement for the effective performance of the public office involved." The court also noted "if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield.”

The court found political considerations were not appropriate requirements for the lieutenant's job and found the lieutenant did not fall within the policymaker liability exception. However, the court found the sheriff had qualified immunity since the sheriff could have reasonably, but mistakenly, believed the employee’s demotion was not unconstitutional.

Court of Appeal Limits Former Officers' POBR Rights

2012-02-22T12:00:00.012-08:00

In a carefully tailored decision, the Court of Appeal in Barber v. California Dept. of Corrections and Rehabilitation (Cal. Ct. App., Feb. 15, 2012) 12 Cal. Daily Op. Serv. 1936, held POBR does not entitle a former peace officer to review years of personnel records. The decision emphasized the plaintiff made a "broad request" to review his personnel records only after he had been terminated.

The plaintiff was an employee with the California Department of Corrections and Rehabilitation (CDCR) until being terminated in April of 2009. Six months after his termination, the plaintiff requested copies of his CDCR personnel records. CDCR denied the request and the plaintiff filed a petition for writ of mandamus and a complaint for declaratory and injunctive relief seeking copies of the records under POBR. The superior court denied plaintiff’s requests, and plaintiff appealed.

Government Code section 3306.5, part of POBR, states that an employer of public safety officers shall permit a requesting officer to view or copy personnel files that have or are being used to determine that officer’s qualifications for benefits or disciplinary action. The Court of Appeal found the right to inspect records only applied to public safety officers and plaintiff was no longer a public safety officer after his termination went into effect. Because plaintiff made his request for records well after being terminated from CDCR, he was not entitled to access the records. The court, therefore, affirmed the ruling of the lower court and awarded CDCR its costs on appeal.

PERB Files Lawsuit to Block San Diego Pension Initiative

2012-02-15T12:00:00.000-08:00

On February 14, 2012, the Public Employment Relations Board filed a lawsuit in San Diego Superior Court to block the so-called "Comprehensive Pension Reform Initiative for San Diego." PERB found the City put the initiative on the ballot without meeting and conferring with labor organizations as required by the MMBA. PERB's lawsuit follows a decision to grant injunctive relief and issue a complaint after the San Diego Municipal Employees Association filed an unfair labor practice charge. A copy of the complaint/writ petition is available here.

PERB Moves to Stop San Diego Pension Initiative, Issues Complaint Against City

2012-02-14T13:00:00.001-08:00

On February 10, 2012, the Public Employment Relations Board granted a request for injunctive relief to stop the so-called "Comprehensive Pension Reform Initiative for San Diego." PERB also directed its General Counsel to "immediately initiate an action for appropriate injunctive and writ relief in San Diego Superior Court." A copy of PERB's letter granting injunctive relief and complaint is available here.

The initiative seeks to replace defined benefits pension for most city workers with a 401(k) and reduce public safety benefits. The initiative would also cap city payroll for five years and remove charter provisions requiring employee approval to change pension benefits. PERB's Complaint alleges the city council placed the initiative on the June 2012 ballot without satisfying its duty to meet and confer, violating the Meyers-Milias-Brown Act.

NBC Bay Area: San Jose Pension Numbers "Not Based On Reality"

2012-02-09T11:30:00.001-08:00

The Bay Area affiliate of NBC News recently exposed the City of San Jose's "numbers game" on pension costs. The report reveals "city leaders gave out bad information" that grossly inflates projected pension costs even though "the mayor was told not to use that number." The report notes the city is playing "quite the numbers game" in its efforts to steal officers' retirement security. See the report here.

Court of Appeal: Names of Police Officers Involved in Critical Incidents Not Always Confidential

2012-02-08T13:00:00.000-08:00

In Long Beach Police Officers' Association v. City of Long Beach, (February 7, 2012) the Second District Court of Appeal ruled the city must release the names of police officers involved in officer-involved shootings. In reaching its decision, the Court disagreed with the arguments of the POA and the city against disclosure, but declined to issue a blanket rule, noting public agencies have to consider disclosure on a case-by-case basis.

The case arose after the Los Angeles Times sent a public records request to the city requesting the names of all police officers involved in officer-involved shootings for a five-year time period. After the city initially agreed to comply, the POA sued the city and the city backed down. Then the LA times sued the city. After initially blocking the release, the superior court ordered the city to release the names and the city and POA appealed.

The Court held the names of officers were not confidential personnel records protected from disclosure by the Penal Code. The Court also decided not to apply the so-called "catch-all" exception to the public records act. The catch-all exception applies whenever "the public interest served by withholding the records clearly outweighs the public interest served by disclosure." The POA argued the exception applied because of threats to officer safety. The Court, however, held "generalized safety concerns" are not enough to trigger the exception, but noted "in certain circumstances protecting the anonymity of a peace officer may outweigh the public interest in disclosure."

Small California Town Lapses on Workers' Comp Insurance, Briefly Shuts Down Police Department

2012-02-07T12:00:00.000-08:00

The town of Isleton, California shut down its police department for about a week in late January after it lost its workers' compensation insurance for lack of payment. During the shutdown, the Sacramento County Sheriff's Department assumed responsibility for high priority calls in the area. The department was back up and running after negotiating a policy with a new carrier.

Court of Appeal Upholds Police Officer's Termination

2012-02-06T09:00:00.000-08:00

In an unpublished opinion, Lake v. City of Hercules (January 26, 2012) 2012 WL 243203, the Court of Appeal upheld a police officer's termination even though the city failed to call a key witness against her.

The plaintiff, a police officer with the City of Hercules, was assigned to an interagency narcotics task force. She told the Chief of Police she needed an assault rifle as part of those responsibilities. However, the Chief believed she had lied to him to obtain his approval for the purchase of the rifle and she was terminated for dishonesty. The employee appealed the determination to superior court.

At trial, the officer claimed she was denied a fair administrative hearing since the City failed to call its main investigator as a witness. However, the Court found the City was not required to call the investigator as it did not rely solely on the report to prove its case. As a result, the Court found sufficient evidence to show the employee was dishonest and upheld the termination.

PERB: Fire Chief Violated MMBA By Eliminating Union Time Bank

2012-01-30T13:00:00.000-08:00

In Stanislaus Consolidated Firefighters (January 20, 2012) PERB Dec. No. 2231-M, PERB found a Fire Chief violated several sections of the MMBA when he eliminating a Union Time Bank after members filed a grievance over being denied the time off.

The Union and the Fire Department were in the middle of negotiations when the Fire Chief informed the Union he would be removing section 20-2 from the MOU. Section 20-2 allowed the union to use Department buildings for its meetings and also provided for station coverage during those meetings. The Fire Chief proposed the removal of the section after the last day for the parties to bring new proposals to the table. The Fire Chief claimed the removal of the section was not related to the regular on-going negotiations and was instead considered an operational need for the District. However, at no time during negotiations did the District present a proposal that section 20-2 be eliminated from the successor agreement.

The parties reached a tentative agreement which continued, in effect, the terms and conditions of the expired MOU, including section 20-2. Section 20-2 disappeared from the agreement after the Fire Chief reviewed and signed the agreement and presented the agreement to the Union to sign. The Union refused to sign the agreement until section 20-2 was reinserted into the agreement. The District then threatened to impose. Around the same time, union members had submitted time off requests to use the Union’s Time Bank to attend a “State of the District” address. When their requests were denied they filed a grievance on the issue. In response to the grievance being filed at step 3 the Department unilaterally decided to discontinue the Union Time Bank, which was provided for in the current MOU.

PERB decided section 20-2 presented a negotiable matter within the scope of representation and that section 20-2 was still in effect since the TA continued the terms and conditions of the expired MOU. PERB also found the District removed the section without giving the other party notice or an opportunity to bargain and that the Union had presented a prima facie case of discrimination and retaliation as well as interference. The Chief knew the requests for time off were for protected activity and unilaterally discontinued the leave bank in response to their request and subsequent filing of a grievance.

Fox News Profiles Stockton POA's "Bellwether" Victory On Contract Rights

2012-01-27T17:00:00.002-08:00

Fox News Commentator Tom Sullivan recently interviewed Mastagni Law partner David P. Mastagni about the Stockton POA's victory over the City of Stockton in a closely-watched case with national implications. Watch the full clip below:

As Tom Sullivan explained, the case started after the City of Stockton "'declared a "fiscal emergency" thinking it would allow them to impose pay cuts on their city's finest." However, the POA fought back, filing suit to force the City to honor its contract with the POA. The Court recently rejected the City's claims, finding the Stockton POA "was within its right to refuse" to reopen its contract.

Mastagni Law attorneys David E. Mastagni, William M. Briggs, Isaac S. Stevens and B.J. Pierce represent the Stockton Police Officers' Association in the case.

NLRB Issues New Report on Social Media Cases

2012-01-25T08:30:00.000-08:00

The National Labor Relations Board issued a new report yesterday on its cases involving employees' use of social media and corresponding employer policies and practices. The report notes many employer policies about social media use by employees are unlawful because they punish employees for engaging in protected concerted activity. The report follows up on an August 18, 2011 report surveying similar cases. The NLRB oversees most private-sector labor relations in the United States. While public-sector labor relations in California are administered by the the Public Employment Relations Board, an independent state agency, PERB often looks to NLRB precedent in making decisions.

US Supreme Court: Warrant Required for GPS Tracking

2012-01-23T09:00:00.000-08:00

In a 9-0 decision, the Supreme Court held that attaching a GPS device to a vehicle, and using it to monitor the vehicle’s movements on public streets, constitutes a search under the Fourth Amendment. As a result, the Court held it is unconstitutional to attach a GPS device to a vehicle without a warrant or consent.

The case started after the FBI obtained a warrant, but the warrant only authorized installation of the device in the District of Columbia and within 10 days of when the warrant was issued. Instead, agents installed the device on the 11th day and in Maryland. Consequently, the Court treated the case as though there was no warrant.

The agents tracked the vehicle’s movements for 28 days. Later, they secured an indictment of the defendant and others on drug trafficking conspiracy charges based in part on evidence obtained with the GPS device. The District Court suppressed the GPS data obtained while the vehicle was parked at the Defendant's residence, but decided the remaining data was admissible because the Defendant had no reasonable expectation of privacy when the vehicle was on public streets. The Defendant was convicted and appealed.

Justice Scalia, writing for the majority, reasoned one's vehicle is a type of personal "effect" the Fourth Amendment specifically mentions, and that, therefore, attaching a GPS device to one's vehicle is the type of encroachment that would count as a search under the Fourth Amendment at the time it was adopted. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Justices Roberts, Kennedy, Thomas and Sotomayor joined his opinion.

Justice Alito wrote an opinion reaching the same result from a different perspective. He decided the use of the GPS device was unconstitutional because the length of the monitoring made it a degree of intrusion that a reasonable person would not have anticipated. Justices Kagan, Ginsburg, and Breyer joined his opinion.

Sacramento County LEMA Vindicates Right to Investigate and File Grievances Without Fear of Retaliation

2012-01-19T14:30:00.000-08:00

Sacramento County Law Enforcement Managers Association (LEMA) President Michael Ziegler obtained a settlement protecting the right of union officers to investigate and pursue unpopular grievances in his lawsuit against former-Sheriff John McGinness and the County of Sacramento.

In March 2010, Ziegler filed a grievance on behalf of himself, LEMA, and LEMA’s members alleging violations of Sheriff’s Office policies relating to the handling of FEO files of a LEMA member running for sheriff. On the same day Ziegler appealed the denial of the grievance, it served Ziegler with a notice of interrogation. The notice said Ziegler was “suspected of misconduct” and indicated that the interrogation was related to Ziegler’s communications with a witness during his investigation of LEMA’s grievance. Between April 2010 and August 2010, Ziegler received three more notices of interrogation. Ziegler objected to the investigation.

All four notices told Ziegler he was prohibited from discussing the matter with anyone other than his representative. As a result, Ziegler was prohibited from discussing the substance of the investigation with LEMA’s board of director or members. Ziegler submitted to interrogation on August 18, 2010 under threat of discipline for insubordination.

Ziegler filed a petition for writ of mandate against the County of Sacramento and then-Sheriff John McGinness on August 10, 2010. Ziegler’s petition alleges the County violated the Meyers-Milias-Brown Act by opening a retaliatory investigation against Ziegler for his efforts to investigate the improper handling of LEMA member’s personnel records. Ziegler also claimed the Sheriff’s actions impermissibly interfered with his representation of his members. The petition sought, among other things, a writ compelling the County to cease and desist from unlawfully retaliating against Ziegler and expunge all records of its investigation of Ziegler and a determination that the County willfully and maliciously violated the MMBA.

With encouragement from the Court, the parties participated in mediation and reached a global resolution of the suit. Under the settlement all references to the disciplinary investigation of Ziegler will be removed from his files and the County paid all mediation costs and Ziegler’s attorney fees for the mediation. The County is also required to email every member of LEMA a copy of the agreement, which includes the County’s acknowledgement that (1) “The investigation of an employee representative over engaging in concerted labor activity, including but not limited to the investigation of a potential grievance or the filing of a grievance is unlawful” and (2) “Employee representatives shall not be subject to the threat of discipline for exercising rights under the MMBA or any grievance process.”

Mastagni Law attorneys David E. Mastagni and Isaac S. Stevens represented LEMA President Mike Ziegler is the matter.

Court Dismisses DEA Agent's Lawsuit Over Leaked Shooting Video

2012-01-18T12:00:00.000-08:00

On January 17, 2012, the federal appellate court for the District of Columbia dismissed a privacy lawsuit brought by a DEA after a video of him accidentally discharging his weapon was released on the internet. The agent discharged his weapon, injuring himself, during a presentation to students at a local school. One of the parents was recording the presentation and turned the video over to the DEA shortly after. It was later copied and distributed to various people within the DEA. The officer never learned how it was released publicly, but the video was widely viewed on the internet.

The officer brought claims under federal and Florida law, alleging a public disclosure of private facts. While the court noted the DEA's conduct was"far from a model of agency treatment of private data," the court dismissed the claim, noting "[n]o liability attaches 'for giving further publicity to what [a] plaintiff himself leaves open to the public eye.'”

Federal Court Signals End for CDCR Receivership

2012-01-17T18:00:00.000-08:00

The federal judge overseeing the federal receivership of California's state prison system announced today "the end of the Receivership appears to be in sight" after six years of federal intervention in California's prison system. The federal court took control over parts of the state prison system after finding constitutional violations and appointed a receiver to oversee significant structural changes. The state challenged the court's order, ultimately resulting in the United States Supreme Court case Brown v. Plata, which upheld the receivership.

Court of Appeal Vindicates Firefighter's Workers' Comp Rights

2012-01-11T12:00:00.000-08:00

Where does the personal end and the legally compensable begin? In Richard Warner v. W.C.A.B. et al., California’s Second Appellate District recently had a chance to weigh in on this crucial workers’ comp question as it relates to a work-from-home firefighter.

Richard Warner is a Los Angeles County firefighter who works and lives on small, picturesque Santa Catalina Island. To ensure that the approximately 4,000 residents of the island have fire protection, LA County required Warner, along with one other firefighter, to live on the island. Warner’s house is both residence and partial workplace. Island denizens visit him there when they need his services, and he often responds to incident calls directly from home, without traveling to the island’s modest fire station.

In February of 2010, Warner’s wife asked him to help her trim the wisteria that grows wildly around their house. Warner, after falling off a ladder, injured his neck and his back, as well as his wrist, elbow, and shoulder on his left side.

The County tried, with initial success, to avoid paying disability or medical costs to Warner, under the claim that this injury was due to a personal act—a favor Mr. Warner did for his wife—rather than part of his employment obligations. The Workers’ Comp Appeals Board sided with the County, concluding that although Warner suffered his injury in the course of employment, it did not arise out of employment, because trimming the wisteria was something he did for private purposes.

The Second Appellate District overturned the Board and upheld Warner’s rights. The Court invoked the time-honored Dual Purpose Doctrine: if an action serves both personal and employment-related ends, it is an act which “arises out of work” for compensation purposes. There was no question that Warner worked from his home. It was equally incontestable that the County benefited from having this fire station-cum-residence be both easily accessible and aesthetically pleasing.

In other words, trimming the wisteria served both Warner’s ends and those of his boss—the fact that Warner acted at his wife’s request did not negate this fact. His employer must pay him workers’ comp.

The court’s decision is unpublished, but it nevertheless represents a significant vindication of the rights of workers in a time when they are under increasing attack. Workers’ comp exists to help those who are hurt serving their bosses’ interests. Employers who compel their subordinates to mingle duty and leisure should not be able to cry “Personal purposes!” when the same mingled deeds lead to mangled results.

Fox40: Stockton's "fiscal emergency declaration may come back to bite the city big time"

2012-01-07T12:00:00.000-08:00

Fox40 reporter Rowena Shaddox reported Friday about the Stockton Police Officers' Association major court victory over their right to enforce their contract. The report includes interviews with Sgt. Bill Hutto and Ofc. Mark McLaughlin. See the entire video below and here.

Stockton POA Wins Round 1 Against City

2012-01-05T18:00:00.000-08:00

The Stockton Record reported Thursday that the "police union appears to have prevailed in the first round today of its ongoing courtroom battle with Stockton in a dispute over the city’s right to break its contract with the police union during its financial crisis." In that case, the Court found in favor of the Stockton POA on a key issue. Mastagni Law attorneys David E. Mastagni, William M. Briggs, Isaac S. Stevens and B.J. Pierce represent the Stockton Police Officers' Association in the matter. Read the entire article here.

Court Rejects "Fiscal Emergency" Reopener, Upholds Stockton POA's Right to Enforce Contract

2012-01-05T13:00:00.000-08:00

In a closely-watched case with national implications, the San Joaquin Superior Court dismissed the City of Stockton's claim it could unilaterally reopen a closed contract. In Stockton Police Officers' Association et al. v. City of Stockton et al., the City claimed it could force the Stockton Police Officers' Association to reopen a closed contract and renegotiate because the City declared so-called "fiscal emergency."

The Court rejected the City's claims, finding the union "was not required to accept the City's invitation to discuss or renegotiate the terms of a closed contract, notwithstanding the City's declaration of fiscal emergency" and "was within its right to refuse" to reopen its contract, dismissing the City's claim.

The City of Stockton's claims are part of an emerging trend by some public sector management firms to try to expand the definition of "emergency" and create a new tool for public agencies seeking to get out of contractual obligations. Tellingly, however, the Court noted the City "has not identified any contractual or statutory basis for its claim that SPOA must meet and confer, bargain, or renegotiate a closed labor agreement."

Mastagni Law attorneys David E. Mastagni, William M. Briggs, Isaac S. Stevens and B.J. Pierce represent the Stockton Police Officers' Association in the matter. The case was previously profiled by Fox News commentator Tom Sullivan.

Court of Appeal: Retirement Does Not Void Right to Arbitration

2012-01-05T08:30:00.000-08:00

In Service Employees Intern. Union, Local 1021 v. San Joaquin County (3rd DCA, C066861) December 28, 2011, 2011 WL 6812543, the Court of Appeal found an employee’s retirement does not automatically void, or act as a waiver, of the employee’s contractual right to arbitration under an MOU.

The case arose after an employee was terminated from his job as a craft worker for allegedly stealing recyclable material. He then invoked a provision of the MOU and requested arbitration of the decision to terminate him. The employee also filed for retirement benefits. The County denied the employee’s request for arbitration, and the trial court found for the County by denying the union’s petition to compel arbitration.

On appeal, the County argued once the employee had retired from his job, he was no longer “an employee” under the MOU and had forfeited any rights to arbitration under the MOU. The Court disagreed, holding an employee’s retirement does not automatically void, or act as a waiver, of the employee’s contractual right to arbitration under an MOU. The Court found the employee appropriately invoked his right to arbitration and accordingly reversed the lower court’s denial of the petition to compel arbitration.

CDCR Failed to Provide Reasonable Accommodations

2012-01-04T08:30:00.000-08:00

In Cohen v. CDCR (2nd DCA, B226762) December 22, 2011, 2011 WL 6739621, the Court of Appeal found CDCR failed to provide reasonable disability accommodations to a correctional employee. The employee sufferred an injury which limited her ability to carry heavy items and requested accommodations. Her doctor determined she could perform the essential job functions and suggested a reasonable accommodation of a cart to assist her in moving about the large facility.

However, CDCR ultimately moved her office to an area of the prison approximately one mile away from where she treated her patients which made it difficult for her to complete work in her office. She also had to find a bench or a vacant room to complete her work resulting in her having to transport all of her files as she moved about the facility. During this time, she missed several days of work and ended up taking 392 more hours of leave than she was allowed.

The Court found that if CDCR had reasonably accommodated the employee's limitations, her attendance would have been sufficient. The Court further found the employer had not offered a reasonable accommodation, noting all other employees had an office space in an appropriate place to meet with patients.

Court of Appeal Finds Police Chief's Termination Violated POBR

2012-01-03T08:30:00.000-08:00

In Robinson v. City of Chowchilla, (5th DCA F059608) December 23, 2011, 2011 WL 6450602, the Court of Appeal held the city violated POBR when it terminated Robinson, the city's police chief, without the requisite notice, statement of reasons, and opportunity for an administrative appeal. Following termination Robinson filed a petition for a writ of mandate claiming violations of POBR. POBR has special provisions for chiefs of police. Specifically, Government Code section 3304(c) provides:

“No chief of police may be removed by a public agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefor and an opportunity for administrative appeal. For purposes of this subdivision, the removal of a chief of police by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute ‘reason or reasons. Nothing in this subdivision shall be construed to create a property interest, where one does not exist by rule or law, in the job of Chief of Police.”

The City claimed the notice and appeal provisions apply only if a police chief has a protected property or liberty interest. The Court of Appeal, however, rejected this argument, finding the last sentence of the subsection merely clarified that no new property interest was being created, but has no effect on procedural protections set forth elsewhere in the subdivision.

The Court also held the City removed Robinson from office, thereby violating POBR, when it forced Robinson to leave his physical office, took the authority of police chief away from him, and gave both the physical office and the authority of police chief to someone else, irrespective of when it stopped paying him.

California Supreme Court Upholds Abolition of Redevelopment Agencies

2011-12-29T19:00:00.000-08:00

In an opinion sure to have state-wide impact on the nearly 400 existing redevelopment agencies, the California Supreme Court held, “Redevelopment agencies ... do not have protected right to exist that immunizes them from statutory dissolution by the legislature.” The ruling in California Redevelopment Assn. v. Matosantos (Cal., Dec. 29, 2011, S194861) 2011 WL 6822391, has broad implications for for public safety services. Redevelopment agencies had been used to siphon local revenue away from core services, such as law enforcement and fire protection, but Thursday’s ruling makes it much more difficult for cities and counties to continue the practice.

The Court ruled on two state laws addressing so-called “Redevelopment Agencies.” The Court held, “Assembly Bill 1X26, the Dissolution Measure, is a proper exercise of the legislative power vested in the legislature by the State Constitution.” The Court explained that the power to create entities such as redevelopment agencies carried with it the corollary power to dissolve those entities. However, the Court invalidated the measure’ companion bill, A.B. 1X27, which conditioned further redevelopment agency operations on additional payments by the agencies’ community sponsors to state funds benefitting schools and special districts. The Court found this mandate violated Proposition 22, which amended the Constitution to prevent the state from redirecting redevelopment funds.

The opinion also chronicles how community redevelopment agencies, formed to combat urban decay, developed into the principal instrument of economic development for most cities. These agencies principally acquire and transfer property on favorable terms for residential or commercial development. Unable to levy taxes, the agencies rely on tax increment financing, whereby the property tax revenues for government entities other than the redevelopment agency are frozen, while revenues from any increase in values are awarded to the redevelopment agency on the theory that the increase is the result of redevelopment. The tax increment financing has, “sometimes been misused to subsidize the city’s economic development through the diversion of property tax revenue for other tax entities.” The agencies are used to shield property tax revenue from other governmental agencies and create a shell game amongst local governments with respect to property tax funds.

The tax increment financing is a hot political issue because of the arguable unfair advantage it provides cities over school districts and local taxing agencies, and the loss of revenue to the state’s general fund. While Governor Brown considered eliminating redevelopment agencies altogether as a partial mean of closing the state’s projected budget deficit, the legislation enacted “freezes” conditions by placing restrictions on modification of existing plans and barring creation of new agencies. The legislation was intended to preserve redevelopment assets and revenues to fund core local services, i.e. public safety and education. The dissolution component transfers control of redevelopment agency assets to the local public entity that created the agency and requires performance of existing obligations. The Court invalidated the provision that created an exemption for agencies that agreed to make specified payments to other governmental funds.

Paper: Police vs. Stockton, Round 1

2011-12-17T12:00:00.000-08:00

The Stockton POA was in court Friday trying to block the city's attempt to impair their MOU based on a purported fiscal emergency. The city claims it can impair existing labor contracts because the city council passed a resolution declaring a fiscal emergency. Mastagni Law attorneys David P. Mastagni, David E. Mastagni, William M. Briggs, Isaac S. Stevens and B.J. Pierce represent Stockton POA in the action. A ruling is expected before the end of the year. Read more about the case in the Stockton Record's article Police vs. Stockton, Round 1.

CalPERS Refutes Stanford Pension Claims

2011-12-15T09:00:00.000-08:00

CalPERS released a rebuttal Tuesday to the Stanford Institute for Economic Policy Research's (SIEPR) most recent claims about CalPERS' long-term liabilities. The Stanford report grabbed headlines claiming CalPERS has a significant unfunded liability, based largely on artificially low estimates of CalPERS investment returns. The SIEPR projections getting the most attention are based on very conservative projected rates of return for CalPERS investments, between 4.5% and 6.2%. However, as CalPERS points out, its 20-year average investment return is 8.4% and it earned 21.7% on its investments last year. Using these historical rates, rather than Stanford's hypothetical rates, CalPERS is close to funding levels most experts agree are adequate for pension systems and is rapidly recovering from investment losses in 2008 and 2009.

Full Disclosure Network Profiles ASA-DOJ Lawsuit

2011-12-14T09:00:00.000-08:00

On Sunday, December 11, 2011, the Full Disclosure Network released a profile of the lawsuit filed by the Association of Special Agents- Department of Justice. The lawsuit challenges budget cuts that defunded of the DOJ’s Bureau of Narcotic Enforcement (BNE) and Bureau of Intelligence and Investigations (BII). Mastagni Law attorneys David P. Mastagni, David E. Mastagni and Isaac S. Stevens represent ASA-DOJ in the action.

Private-Sector Firefighters File Class Action Against Wackenhut Over Alleged Employer Abuses

2011-12-12T14:00:00.000-08:00

Several private-sector firefighters filed a class action lawsuit Tuesday against private security company Wackenhut, alleging several serious wage and hour violations and other employer abuses. The lawsuit alleges firefighters working on Department of Defense contracts in Afghanistan and Iraq were required to work 24 hours a day, but only paid for 12 hours, required to have walkie talkies to their ear during sleep, and were frequently called out on a fire or other emergency only to be sent back to bed in the middle of the night and denied pay for their time.

The lawsuit alleges firefighters who complained were told “You have two choices, aisle or window,” or, “chicken or beef,” meaning they would be fired and flown back to the United States. The eleven-count complaint seeks damages for unjust enrichment, breach of contract, fraud and deceptive trade practices. Wackenhut has faced several lawsuits in the past about its employment practices. In 2008, Mastagni Law attorneys David P. Mastagni and David E. Mastagni won a seven-figure award for Wackenhut employees over wage and hour violations.

Fox News: Stockton Cops Waging War Over Contract Rights

2011-12-05T08:30:00.000-08:00

Fox News Commentator Tom Sullivan says he's "with the police on this one," weighing in on a lawsuit between the Stockton POA and city manager Bob Deis. He notes the number of officers is down 25% and crime is at record levels in Stockton. See the full clip here. Mastagni Law attorneys David E. Mastagni, Isaac S. Stevens, and B.J. Pierce represent the Stockton POA in the matter.

Court of Appeal Recognizes Corrections Professionals' Special Expertise

2011-12-01T12:00:00.000-08:00

In Ochoa v. Superior Court (2011) 199 Cal.App.4th 1274, the Sixth District Court of Appeal ruled superior courts must consider inmates' rights to view confidential information to challenge parole denials on a case-by-case basis and directed the court to consult corrections professionals to help it decide what the inmate's attorney could receive. The case went on appeal after a superior court judge ordered a warden to choose between producing unredacted copies of confidential information to a prisoner or opposing prisoner's petition without relying on confidential information. The Court rejected such a blanket rule and acknowledged corrections professionals have a special role to play in determining why records should be confidential.

In reaching its decision, the Court observed:

[Q]uestions of confidentiality are complex and can only be made by trained, experienced correctional authorities knowledgeable about the inmate in question, the entire content of his file (not just the contested documents the court reviews), prison life in general, morality and ethics of the prison setting, prison relationships, and the rehabilitative process. In many cases the reasons for confidentiality may not spring from the face of the document but may be based on other factors in the inmate's file or other conditions in the institution, or a psychological factor that would require expert analysis to appreciate.’ ... ‘Such a hearing would allow the custodian of records ... to explain the significance of the documents and the reasons for their being withheld. Anything less would have the court acting in a vacuum, unable to obtain or use the factual tools which are essential to an informed judgment.’

As a result, the Court of Appeal ordered the superior court to set an in camera hearing with corrections professionals to determine how much, if any, of the confidential files could be turned over to the inmate's attorney.

DOJ Special Agents Sue to Stop Budget Cuts

2011-11-29T17:00:00.000-08:00

The Association of Special Agents - Department of Justice filed a Verified Petition for Writ of Mandamus and Complaint to stop the state from laying off approximately 200 special agents. The layoffs threaten to close over two thirds of BNE task forces. According to the petition, the layoffs are an infringement of the Attorney General's constitutional and statutory authority to determine the DOJ's functions and allocate resources within the Department. The complaint seeks injunctive and declaratory relief. Mastagni Law attorneys David P. Mastagni, David E. Mastagni and Isaac S. Stevens represent ASA-DOJ in the action.

Court Upholds Peace Officers' Right to Sue Over Dissemination of Personnel Records

2011-11-23T09:00:00.000-08:00

In Olivera et al. v. Siemens, et al., Case No. S-CV-0029390, the Placer County Superior Court upheld peace officers' right to seek redress for dissemination of their personnel records, overruling a city's demurrer. The officers filed suit for invasion of privacy after a former IA sergeant took and distributed a copy of their IA files to officers at another agency. The city then filed a demurrer, challenging the ability of peace officers to bring a civil suit over disclosure of their personnel files. The Court found the officers could proceed with their claims for invasion of privacy and intrusion into private affairs, noting the alleged dissemination of their personnel records was "sufficiently outrageous" to trigger liability under Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272.

The Court also upheld the officers' right to proceed with their claims on intentional infliction of emotion distress, negligent infliction of emotion distress, and injunctive relief ordering the defendants to retrieve and destroy unlawfully disseminated records. The plaintiffs are represented in the matter by Mastagni Law attorneys David E. Mastagni, James B. Carr and Isaac S. Stevens.

California Supreme Court Issues Landmark Decision Affirming Public Employees' Vested Rights

2011-11-21T18:00:00.000-08:00

In Retired Employees Association of Orange County, Inc. v. County of Orange (November 21, 2011) 2011 WL 5829598, a unanimous California Supreme Court ruled public employees can receive constitutionally-protected vested rights by way of implied contract terms. The holding means public employers can be liable for promises made to employees, even if they do not formally adopt them by ordinance. The case has been closely watched for its broad implications on labor relations, employee compensation, and pension benefits.

The case arose after Orange County substantially increased the cost of retirees' health insurance premiums by splitting retirees into a separate pool from active employees for calculating premiums. The retirees filed suit in federal court, arguing they have a vested right to premiums calculated from a joint pool. The County claimed the retirees have no vested rights because the MOUs under which they retired did not expressly indicate how the cost of retiree health benefits would be calculated. The District Court sided with County, finding the County could not be liable because it did not explicitly confer vested rights through an ordinance. The retirees appealed and the federal Court of Appeals asked the California Supreme Court to decide the issue.

The Court held the County could be held liable for its promises to employees, regardless of whether it expressly adopted them through an ordinance. The Court reasoned employees could hold their employer accountable for the implied terms of a contract, such as the duration of a benefit. As a result, the Court concluded, "[w]hether an implied term creates vested rights... is a matter of the parties' intent" and general contract principles apply to determine the intent.

The Court went on to reject the County's argument that vesting should be treated differently, noting "[n]either County nor amici curiae [] offer any legal authority for this distinction." As a result, the Court concluded, "[v]esting remains a matter of the parties' intent." Once intent is established, the implied terms are treated as part of the contract and are protected by the Contract Clause of the California and federal constitutions.

Court Blocks Dissidents' Attempt to Split Correctional Peace Officers' Union

2011-11-16T09:00:00.000-08:00

The Santa Clara County Superior Court blocked an attempt by dissident union members to split the Santa Clara County Correctional Peace Officers' Association in two. In May 2011, a minority of SCCCPOA board members, including the vice president, formed a rival union and filed a petition to represent new peace officer classifications. The petition was filed months after the window period for decertification and unit modification petitions.

However, rather than reject the untimely petition, the County began to process the petition and attempted to schedule a decertification election even though SCCCPOA and the County were in the middle of contract negotiations. The County claimed it should be excused from following the established window period because it was impossible for the rival group to comply and asserted the County could ignore the rules in special circumstances. SCCCPOA then filed a Petition for Writ of Mandate to compel the county to reject the untimely petition.

The Court granted SCCCPOA's petition, rejecting the County's claims. First, the Court found the local rules establishing window periods for unit modification and decertification petitions are mandatory. Second, the Court noted there is no "impossibility" exception to Government Code section 3507.1, which requires local agencies to follow their local rules adopted pursuant to the MMBA. Finally, the Court held the MMBA does not permit case-specific decisions to ignore local rules. As a result, the Court agreed to issue a writ of mandate compelling the County to reject and refuse to process the rival group's petition. Mastagni Law attorneys David P. Mastagni, Kathleen N. Mastagni Storm, and Jeffrey R. A. Edwards represented SCCCPOA in the action.

Court Allows Civil Rights Suit to Proceed Against Police Officer Who Calibrated Intoxilyzer Machine

2011-11-15T09:00:00.000-08:00

In Molina-Aviles v. District of Columbia (D.D.C., November 14, 2011) 2011 WL 5517044, a federal judge in Washington, D.C. denied a motion to dismiss brought by a police officer accused of failing to properly calibrate an Intoxilyzer 5000EN machine. The plaintiffs, several DUI defendants, claim the machine generated readings approximately 30% higher than a person's actual blood alcohol level and sued the officer in his personal capacity. The court let the suit proceed against the officer personally because the plaintiffs alleged the officer knew his calibration methods were faulty, but continued to use them.

Court of Appeal Strikes Down POBR Waiver, Awards $362,000 in Backpay

2011-11-14T09:00:00.000-08:00

In Jaramillo v. County of Orange (November 8, 2011) 2011 WL 5338998, the Fourth District Court of Appeal awarded an assistant Sheriff backpay because the County denied him a pre-termination administrative hearing. The Court also voided his purported waiver of POBR rights.

Former Orange County Sheriff Mike Corona appointed Jaramillo as Assistant Sheriff after he had supported him during an election. However, Jaramillo and the Sheriff’s relationship began to deteriorate when the Sheriff requested he participate in illegal activities. Jaramillo became tired of covering for the Sheriff and reported the Sheriff’s illegal activities. The Sheriff then fired the him without providing him with a pre-termination hearing. After he was terminated, he was charged with misappropriation of public resources and perjury before a grand jury to which he plead no contest as part of a settlement agreement.

The County claimed Jaramillo waived his POBR rights when he signed two documents upon being appointed as Assistant Sheriff. Both documents contained provisions stating he was an “at-will” employee and he “could be released from his position at any time without notice.” Neither of the documents he signed made any reference to POBR. The Court determined the waivers were blanket waivers and undermined the purposes of POBR. The Court distinguished County of Riverside v. Superior Court, noting that case permitted only specified and narrow waivers of POBR rights.

The Court also found denying Jaramillo's right to a pre-termination hearing violated POBR, 14th Amendment due process, and Labor Code Section 1102.5 (on the basis the Assistant Sheriff had been fired for whistleblowing on the Sheriff’s illegal activities.) The Court awarded backpay from the date of Jaramillo's termination to the date he plead no contest to two state law felonies as well as injunctive relief in the form of amending the waivers for future management employees.

Legal Issues on the Horizon for AB 646

2011-11-11T12:00:00.000-08:00

AB 646 provides factfinding for all public employees covered by the Meyers-Milias Brown Act, unless the parties have binding interest arbitration. On November 8, 2011, the Public Employment Relations Board (PERB) held a meeting in Oakland on the implementation of AB 646. The meeting previewed two issues public safety unions will likely face as the law goes into effect:

1) Can employers dodge fact-finding by refusing to go to mediation?

AB 646 provides for factfinding after mediation. However, many local rules make mediation voluntary, raising a concern some employers may refuse to go to mediation to avoid fact-finding and then move unilaterally to impose terms and conditions as soon as impasse is reached in negotiations. Government Code section 3505.7 states, “After any applicable mediation and factfinding procedures have been exhausted, but no earlier than 10 days after the factfinders’ written findings of fact and recommended terms of settlement have been submitted to the parties pursuant to Section 3505.5 a public agency . . . may, after holding a public hearing regarding impasse, implement its last, best, and final offer. . .” This language mandates factfinding, a review of a factfinders’ report and a public hearing prior to an employer imposing terms and conditions of employment. Thus, if an employer refuses to engage in factfinding, it cannot comply with the terms of the statute and should be barred from imposing terms.

2) Does AB 646 affect PERB jurisdiction over Penal Code section 830.1 peace officers?

Government Code section 3511 exempts Penal Code section 830.1 peace officers from PERB’s exclusive jurisdiction, allowing them to go to superior court instead. Since AB 646 was adopted, some have argued it gives PERB more authority over peace officers because it requires PERB to “select a chairperson of the factfinding panel.” However, the more sensible view is that AB 646 does no more than it says: PERB appoints the chair of factfinding panels, but if an unfair labor practice arises during the factfinding process, Penal Code section 830.1 peace officers’ labor associations can continue to seek remedies in superior court.

The next step in implementing AB 646 is for PERB to adopt regulations interpreting the statute. PERB is accepting comments and suggests until November 18, 2011 as it prepares to roll out regulations prior to the law's effective date of January 1, 2012.

Labor-Backed Pension Reform Wins, Adachi Initiative Fails in San Francisco

2011-11-09T13:30:00.000-08:00

On Tuesday, San Franciscans considered two voter initiatives about public employees' pensions: Measure C, backed by local labor unions, and Measure D, the so-called Adachi Initiative. Measure C passed with 68% of the vote and Measure D failed, attracting only 33%.

Measure C requires employees to pay a small portion of their salaries to offset healthcare costs and requires most employees pay 7.5% of their salaries to the pension system until the system's investments recover from the recession. Measure C was endorsed by labor, including the San Francisco Police Officers Association and San Francisco Fire Fighters, IAFF Local 798.

San Francisco's Public Defender, Jeff Adachi, spearheaded Measure D, which would have taken even more away from San Francisco's public employees and targeted public safety professionals in particular. Measure D would have required most employees pay at least 7.5% and police and fire 10% of their salaries even after the pension system recovers. It would also have reduced pension benefits. Adachi's previous attempt to slash pension failed in 2010.

Ohioans Reject Anti-Union Law In Landslide Election

2011-11-09T09:00:00.000-08:00

In their November 8, 2011 general election, voters in Ohio voted overwhelming to overturn a state law restricting public-sector employees' collective bargaining rights. By a vote of 63% to 37%, voters rejected Ohio Senate Bill 5, which severely restricted collective bargaining rights in that state. The 250-page bill increased the number of police and fire department employees prohibited from joining unions, prohibited unions from ensuring members pay their fair share for representation, and allowed employers to pick and choose what they wanted to bargain over, and, in some cases, whether they wanted to bargain at all. Under Ohio law, the election means the S.B. 5 will not go into effect and current labor laws will remain in place.

Union Ordered to Pay Attorney's Fees to Expelled Members

2011-11-01T12:00:00.000-07:00

In CDF Firefighters v. Maldonado (October 26, 2011, F061183) 2011 WL 5079589, the Court of Appeal held CDFF had to pay attorneys fees after losing a breach of contract case against former members, even though it voluntarily dismissed a related claim. The case turned on the interpretation of Civil Code section 1717. The section entitles some prevailing parties in breach of contract cases to attorney’s fees. However, there is an exception when “an action has been voluntarily dismissed.”

CDF Firefighters sued two former members for breach of contract after they failed to pay fines levied against them by the union. CDFF fined two members $22,000 to cover expenses for a trusteeship and $743 to reimburse another member for expenses. The two members were ultimately expelled from the union. The former members challenged their expulsion and sought to overturn the $22,000 fine in court. The trial court found the $22,000 fine improper. CDFF then dismissed the claim for $743 and the expelled members moved to recover the attorney’s fees they incurred.

CDFF argued that since it voluntarily dismissed the claim for $743, the expelled members were not “prevailing parties” and could not recover attorneys fees under Civil Code section 1717. They emphasized that their claim for the $22,000 and $743 were brought as one cause of action and argued that by dismissing the cause of action, they triggered the exception to Civil Code section 1717. The court, however, determined the claims for $22,000 and $743 arose from “two separate and distinct obligations,” regardless of how they were plead. As a result, the court concluded, voluntarily dismissing with regard to the $743 fine did not trigger the exception with regard to the $22,000 fine and ordered CDFF to pay attorneys fees.

Court of Appeal Denies CalPERS Credit for Lump Sum Back Pay

2011-10-31T12:00:00.000-07:00

In Molina v. Board of Administration (2011) 2011 WL 4491809, the Second District Court of Appeal rejected an employee's argument that back pay should be counted toward service credit under the Public Employee's Retirement Law (PERL). After Molina was terminated from his job with the City of Oxnard, he filed an action for wrongful termination and subsequently settled for a lump sum. Following the settlement, Molina requested CalPERS increase his pension entitlement, characterizing the settlement amount as “back pay.” However, CalPERS refused to recognize the settlement amount as earnable compensation and denied his request.

The Court held the settlement amount could not count towards the employee’s “compensation earnable” because it did not meet PERL’s requirements to be “payrate” or “special compensation.”

Payrate must “either: (1) [be] paid to similarly situated employees; or (2) [be] paid in accordance with a ‘publicly available pay schedule for services rendered on a full time basis during normal working hours.’ (Gov. Code, § 20636, subd. (b)(1).)”

To qualify as special compensation, one must show the pay “(1) was available to similarly situated employees under a labor policy or federal requirement; or (2) was determined by the CalPERS Board to have been available to other, similarly situated employees as required by PERL. (Gov.Code, § 20636, subd. (c)(2); 2 Calif. Code of Regs., § 571(b)-(d).”

The Court noted CalPERS had advised Molina and the city "that a portion of the settlement payment could potentially be eligible for inclusion in Molina's pension, but only if Molina were reinstated for a full year in a valid position under a legitimate salary based on a salary schedule." That never happened. As a result, the Court rejected Molina’s appeal, leaving his existing pension calculation unaltered.

Governor Releases "Twelve Point Pension Reform Plan"

2011-10-27T14:45:00.000-07:00

On October 27, 2011, Governor Edmund G. Brown Jr. released his 12 proposed major reforms for state and local pension systems. The governor stated the proposals “would end system-wide abuses and reduce taxpayer costs by billions of dollars over the long term” and cut in half the cost to tax payers of state employee pensions.

The “Twelve Point Pension Reform Plan” and its explanation are set forth as follows:

1. Equal Sharing of Pension Costs: All Employees and Employers: Will require that all new and current employees transition to a contribution level of at least 50 percent of the annual cost of their pension benefits.

2. “Hybrid” Risk-Sharing Pension Plan: New Employees: The “hybrid” plan will include a reduced defined benefit component and a defined contribution component. The hybrid plan will be combined with Social Security to provide an annual retirement benefit of about 75 percent of an employee’s salary. The 75 percent target is based on 30 years for safety employees and 35 years for non-safety.

3. Increase Retirement Ages: New Employees: For most new employees, retirement ages will be set at the Social Security retirement age, now 67. The retirement age for new safety employees will be less than 67, but commensurate with the ability of those employees to perform their jobs.

4. Require Three-Year Final Compensation to Stop Spiking: New Employees: Eliminates one-year rule to discourage efforts in the last year of employment to increase the compensation used to determine pension benefits.

5. Calculate Benefits Based on Regular, Recurring Pay to Stop Spiking: New Employees: Will require that compensation be defined as the normal rate of base pay, excluding special bonuses, unplanned overtime, payouts for unused vacation or sick leave, and other pay perks.

6. Limit Post-Retirement Employment: All Employees: Will limit all employees who retire from public service to working 960 hours or 120 days per year for a public employer. It also will prohibit all retired employees who serve on public boards and commissions from earning any retirement benefits for that service.

7. Felons Forfeit Pension Benefits: All Employees: Will require that public officials and employees forfeit pension and related benefits if convicted of a felony in carrying out official duties, in seeking an elected office or appointment, or in connection with obtaining salary or pension benefits.

8. Prohibit Retroactive Pension Increases: All Employees: Will eliminate unfunded liability from increased pension benefits.

9. Prohibit Pension Holidays: All Employees and Employers: Will prohibit all employers from suspending employer and/or employee contributions necessary to fund annual pension costs to avoid repeat of past where many public employers stopped making annual pension contributions during wall street boom years.

10. Prohibit Purchases of Service Credit: All Employees: Will avoid the investment risk associated with allowing purchase of service credit for time not actually worked.

11. Increase Pension Board Independence and Expertise: Will add two “independent” persons with financial expertise to the CalPERS Board and require that persons and their family are not eligible for CalPERS pension. Will also replace State Personnel Board representative on the CalPERS board with the Director of the California Department of Finance. Intended to achieve greater independence and greater sophistication.

12. Reduce Retiree Health Care Costs: State Employees: New state employees will be required to work for 15 years to become eligible any retiree health care and required to work for 25 years to become eligible for the maximum state contribution. Will encourage local governments to make similar changes.

These proposals will have to be debated and passed by the California Legislature before Governor Brown can sign them into law.

ATF Issues Open Letter on Firearms and Medicinal Marijuana

2011-10-25T09:00:00.000-07:00

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives issued an open letter to "All Federal Firearms Licensees" outlining the relationship between federal firearms regulations and state marijuana laws. The letter explains federal law codified at 18 U.S.C. § 922(g)(3) prohibits unlawful users of controlled substances from possessing firearms or ammunition. Federal law also makes it unlawful to sell firearms or ammunition to someone about whom there is reasonable cause to believe uses or possesses controlled substances, such as marijuana. Therefore, the letter concludes, it is unlawful under federal law for medicinal marijuana card holders to buy or possess firearms or ammunition, regardless of a particular state's laws.

Court Reaffirms Peace Officers' Constitutionally-Protected Right to Privacy While Partially Undressed

2011-10-19T09:00:00.000-07:00

Following the Ninth Circuit, the Court of Appeals for the Third Circuit found a female deputy sheriff had a reasonable expectation of privacy while partially undressed and undergoing a decontamination process. Doe, a deputy sheriff in Luzerne County, Pennsylvania was surreptitiously filmed by a male officer while undergoing decontamination. The male officer uploaded the video onto his work computer and called several officers into his office to view the footage. He then put in on a county-wide server. Doe filed a 1983 action against the county and the officer, alleging violations of her right to privacy under the Fourteenth Amendment and her right to be free from unlawful searches and seizures under the Fourth Amendment.

The trial court granted the county's motion for summary judgment. The Third Circuit reversed on the Fourteenth Amendment claim and affirmed on the search and seizure claim. After looking to other circuits, the court concluded a deputy sheriff has a constitutionally-protected privacy interest in his/her partially clothed body. The court noted:

Although the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other circuits—including the Second, Sixth and Ninth Circuits—have held that such a right exists. See, e.g., Poe v. Leonard, 282 F.3d 123, 136–39 (2d Cir.2002) (finding that plaintiff, a female civilian who was participating in a police training video, alleged sufficient facts to raise a triable issue of whether her constitutional right to privacy was violated where the male police officer surreptitiously filmed her in the dressing room while topless and without a bra); York v. Story, 324 F.2d 450, 454–56 (9th Cir.1963) (finding that the plaintiff properly stated a claim for a violation of her constitutional right to privacy where she alleged that, while reporting a sexual assault, a male police officer deceived her into permitting him to photograph her genitals and exposed breasts under the pretext of an investigation), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 497–98 (6th Cir.2008) (finding a privacy violation where a middle school's surveillance cameras recorded the plaintiff students in their undergarments while in the school locker room)
(Doe v. Luzerne County (3d Cir., Oct. 12, 2011, 10-3921) 2011 WL 4823387.)

The court concluded the male deputy’s filming did not implicate the Fourth Amendment because it was conducted for personal reasons.

Court of Appeal Permits Waiver of POBR Rights In Limited Circumstances

2011-10-17T09:00:00.000-07:00

In Lanigan v. City of Los Angeles (Cal. Ct. App., Oct. 4, 2011) 2011 WL 4552533, the Court of Appeal for the Second District overturned the trial court, finding POBR protections can be waived in a minority of discipline cases. The case concerned a Los Angeles police officer facing several serious discipline charges resulting from his treatment of an officer from another department. The Department proposed termination and the officer entered into a detailed settlement agreement under which he was reinstated. He also agreed to specific future discipline in the event of additional disciplinary charges being filed against him for harassing or failing to cooperate with officers of an outside agency, and agreed to waive several of his rights under POBR.

Within a year, the officer again faced discipline charges for providing false information and failing to cooperate with an LASD officer. In response, the Department processed his resignation pursuant to the settlement agreement. He petitioned for peremptory writ of mandate to obtain judicial review of the LAPD’s decision. The lower court issued a writ ordering the city to set aside its acceptance of the officer's resignation and reinstate him to his position.

The Court of Appeal overruled the trial court, but acknowledged the provisions of POBR are not subject to a blanket waiver because POBR was established for a public purpose. Instead, the Court looked to the California Supreme Court's ruling in County of Riverside v. Superior Court (2002) 27 Cal.4th 793 and concluded a waiver of POBR rights could be permitted in certain unusual circumstances. In this case, the Court noted the officer did not waive all of his POBR rights and his waiver applied to discipline for a specific type of alleged misconduct. The Court also emphasized the original settlement was in lieu of almost certain termination.

This case primarily concerned statutory rights. Other pre-termination rights have a federal constitutional dimension that presents additional barriers to waiver. In Walls v. Central Contra Costa Transit Authority (9th Cir. 2011) 653 F.3d 963, the court found a public employee had not waiver his Skelly rights. The court noted "federal courts 'indulge every reasonable presumption against waiver of fundamental constitutional rights' and 'do not presume acquiescence in the loss of fundamental rights.'" The court therefore concluded "a waiver [of the right to a pre-termination hearing] should not be implied and should not be lightly found."

Neutral Fact-finding Now Required Before Public Agencies Can Impose on Employees

2011-10-10T17:00:00.000-07:00

Governor Brown strengthened collective bargaining rights for local public employees by signing A.B. 646 which establishes new minimum impasse procedures for contract negotiation. Prior to this enactment, public employers could declare impasse and impose terms and conditions on employees with few safeguards. In the current economic climate, management negotiators and representatives often hurry to reach impasse and impose cuts on employees, despite their statutory obligation to meet and confer in good faith. Meeting and conferring in good faith does not require agreement, but does require that the parties endeavor to reach agreement and share information.

A.B. 646 will facilitate good faith negotiations by providing for fact-finding, essentially a form of non-binding interest arbitration. The new process will reduce the incentive for agencies to go through the motions of negotiations with a pre-determined intent to declare impasse and impose terms by requiring both parties to justify their positions, share information, and providing for findings and recommendations. Fact-finding is intended to move the parties toward agreement, but also provides a valuable tool to illuminate bad faith bargaining.

The bill provides that if a mediator is unable to resolve the negotiations impasse after 30 days, the employee representative may initiate fact-finding. Within 5 days of the request for fact-finding, each party must select a panel member and PERB selects a panel chairperson. Within 10 days after its appointment, the panel is to meet with the parties, make inquiries and investigations, hold hearings, and take any other necessary steps. It has the power to issue subpoenas to compel testimony and production of evidence. Public employers are required to provide the panel all records, papers, and information relevant to the investigation.

The fact-finding panel then issues findings and recommendations which consider:
1) the application of laws to the employer;
2) local rules and regulations;
3) stipulations of the parties;
4) the public and employers finances;
5) comparables (compensation and working conditions in comparable agencies);
6) the consumer price index;
7) current overall compensation; and
8) any other facts traditionally taken into consideration in fact findings.

The fact-finding panel must make written findings of fact and recommendations of settlement that are advisory only. The cost of the process is bourne equally between the parties. If the agency’s Charter does not require proceeding to interest arbitration, the employer may then impose its last, best, final offer. The employer may not impose a Memorandum of Understanding, and remains obligated to meet and confer with the employee representative each year on matters within the scope of representation, regardless of whether the imposed terms cover those matters.

Court of Appeal Upholds Furloughs for Correctional Officers

2011-10-10T09:00:00.000-07:00

In Brown v. Superior Court of Alameda (1st DCA, Oct. 3, 2011, A127292) 2011 WL 4537946, the Court of Appeal overturned CCPOA's trial court victory, holding self-directed furloughs under two executive orders did not violate California Labor Codes prohibiting “kickbacks” by employers or minimum wage laws.

CCPOA attempted to nullify self-directed three-day/month furloughs. Under the orders, employees were permitted to take the furloughs whenever they preferred. If the employees did not use the three furlough days by the end of the month, the days were to be used at a future date, prior to the employee using any form of paid leave. The furlough days needed to be used prior to June 2012 or they would be eliminated. CCPOA claimed the State was essentially asking its members to work for free.

The Court found the Governor had a right to impose the furloughs as the agencies which members of CCPOA worked for were included in the 2008 and 2009 Budget Acts, which were approved by the Legislature, and were part of the extended furlough program. The Court also found the manner in which the furloughs were implemented did not violate applicable California Labor Codes as employers were not taking “kickbacks” from employees or secretly paying them less. The court also found the furlough program did not violate minimum wage laws. The Court also overturned the trial court’s order for back pay for union members.

City Charter Bars Discipline For Accused Firefighters

2011-10-05T12:00:00.000-07:00

Recently, Los Angeles City firefighters have been under investigation for allegedly permitting filmmakers to use an engine as the backdrop for a short film. However, the alleged violations occurred more than two years ago. In Los Angeles, that means the firefighters cannot be subjected to discipline because of important protections in the City Charter. The Los Angeles City Charter provides that "charges must be filed within one year of the department’s discovery of the act committed or omitted by a member and in no event later than two years from the date of the act or omission." (Los Angeles City Charter, art. X, section 1060(a) (emphasis added).)

The Firefighters Procedural Bill of Rights Act, like POBR, has a one-year limitation period with several exceptions. Most prominently, the one-year period does not begin until a Department discovers the alleged misconduct. The two-year limit in Los Angeles, however, does not contain these exceptions. As a result, firefighters there cannot suffer discipline for alleged misconduct that was not serious enough to raise attention at the time and they do not have to reconstruct long-forgotten details and evidence in order to defend themselves.

Court of Appeal: Police Chief Qualified for Disability Retirement Despite Termination Because of Equitable Exception

2011-09-30T09:00:00.000-07:00

In Zimmon v. City of San Bernardino (Cal. Ct. App., Sept. 16, 2011, E050314) 2011 WL 4337123, the Court granted former San Bernardino Police Chief Garrett Zimmon disability retirement by applying an equitable exception stating that an employee terminated prior to the approval of his disability retirement is still eligible for benefits if the employee's application would have been granted but for the termination.

In the summer of 2002, Zimmon was diagnosed with a heart condition. Later, the city’s mayor openly considered terminating Zimmon so her successor could select a new chief. Zimmon then filed an application for disability retirement and was terminated the following day. A hearing officer ruled Zimmon had suffered a heart-related injury. However, the officer denied Zimmon’s petition for disability retirement. After an internal appeal, the city ruled Zimmon had “proved his disability and incapacity for performance” but he was not eligible for benefits because his termination took place before his right to a disability retirement matured. The superior court affirmed this decision, and the case was appealed to the Fourth District Court of Appeal.

The Appellate Court reversed, holding Zimmon’s application for disability retirement would have been approved had he not been terminated. The Court relied on an equitable exception which states “an employee who has been terminated, prior to the pension board approving his disability retirement application, may still be ‘eligible to retire for disability’ if there is evidence that the employee's application would have been granted.” (Id.) The Court further found Zimmon had already “proved his disability and incapacity for performance of duty ‘on the basis of competent medical opinion.” (Id.)

The Court in Zimmon relied heavily on two Court of Appeal cases brought by firefighters denied disability retirement. These cases helped define what it means to be eligible to retire for disability when an employee is terminated. In Haywood v American River Fire Protection Dist., a firefighter filed an application for disability retirement benefits based on stress caused by the discipline process. (Haywood v American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292.) The Court of Appeal rejected his claims finding eligibility to retire for disability “meant that the person was an active employee, who would be able to return to his job if he overcame his disability.” (Haywood, supra, 67 Cal.App.4th at p. 1307.)

In Smith v. City of Napa, a firefighter with back injuries was dismissed for failing certification tests and filed for disability retirement the same day. (Smith v. City of Napa (2004) 120 Cal.App.4th 194.) The Court of Appeal rejected his claims but noted equitable principles could provide grounds to find that an employee’s disability rights mature and survive a dismissal for cause if the medical evidence supporting those rights is definitive. (Smith, supra, 120 Cal.App.4th at pp. 206–207.)

These two cases laid the groundwork for a case such as Zimmon, in which the employee would clearly have received disability retirement but for his termination from employment.

EEOC: Private Security Company Discriminated Against Older Male Security Guards

2011-09-28T10:00:00.000-07:00

On September 27, 2011, the federal Equal Employment Opportunity Commission filed a complaint against Trinity Protection Services, Inc., a private security company. The complaint alleges Trinity discriminated against older, male security guards in favor of younger, female guards. The lawsuit, EEOC v. Trinity Protection Services, Inc., Case No. 2:11-cv-02535-KJM-DAD, was filed in the Eastern District of California.

The complaint alleges that in 2008 seven security guards at the company's Sacramento location did not reach a qualifying score on an arms requalifying test and were terminated by Trinity. The men, ages 66 to 73, were told they had to wait at least six months to retest and reapply. The women, ages 28, 29 and 50, however, were invited to retest earlier and reinstated in their positions. According to the EEOC, this practice constituted unlawful age and sex discrimination. In a press release, EEOC San Francisco District Director Michael Baldonado said, “Taking the initiative to diversify your work force in terms of gender cannot be done at the expense of the rights of other employees. Trinity’s invitation to requalify should have been extended to all the workers affected, not just the younger women.” The lawsuit seeks an injunction, damages and a federal court order Trinity implement policies, practices and programs to eradicate discrimination at the company.

Ninth Circuit: Employers Must Prove Workplace Disruption Claims in Employee Speech Cases

2011-09-19T12:00:00.000-07:00

In Nichols v. Dancer (9th Cir., Sept. 15, 2011, 10-15359) 2011 WL 4090676, the Ninth Circuit held that under the Pickering balancing test, employers must prove an employee's speech causes workplace disruption to justify subjecting an employee to an adverse employment action. Following the Fifth Circuit, the Court rejected the employer's claim that it is sufficient to merely assert a potential disruption.

Kathleen Nichols worked in the General Counsel's office of the Washoe County School District. She went to a school board meeting about whether her boss would be fired and sat next to him during the meeting. When she returned to work, a manager told her there were questions about her loyalty to the District. The manager told Nichols that she could remain in Human Resources, where her salary would be frozen, or take early retirement. She opted for the latter and sued for a violation of her First Amendment rights.

The case turns on whether Ms. Nichols' conduct caused sufficient interruption to trigger the employer's right to preserve workplace efficiency. Balancing Nichols' rights against workplace efficiency is part of the Pickering balancing test, the analytic framework used by courts to evaluate public employee free speech claims. In this case, the District asserted Nichols' association with her former boss met its burden under the test. The Court rejected that claim.

The Court explained "engaging in Pickering balancing is not like performing rational basis review, where we uphold government action as long as there is some imaginable legitimate basis for it." (Id. quoting Kinney v. Weaver (5th Cir. 2004) 367 F.3d 337, 363.) The Court went on to explain, "An employer may not interfere with an employee's First Amendment rights unless there is evidence that the employee's actions have actually disrupted the workplace or are reasonably likely to do so in the future. Simply saying that there has been or will be disruption, without supporting evidence, is not enough. In the face of Pickering, the “because I said so” approach is insufficient to establish a reasonable prediction of disruption, let alone actual disruption." (Id.)

NLRB: Facebook Post Was Protected Activity

2011-09-12T08:30:00.000-07:00

In Hispanics United of Buffalo, Inc. (September 2, 2011) NLRB Case No. 3-CA-27872, an administrative law judge of the National Labor Relations Board ruled a New York nonprofit violated federal law by firing five employees who posted comments on Facebook about working conditions, including workload and staffing.

An employee of the nonprofit brought the case after he was fired for comments he posted on Facebook. The employee claimed some employees did not do enough to help their clients, drawing responses from other employees about job performance, working conditions and staffing levels. Some of the comments supported the initial post and some disagreed. The nonprofit later fired five employees involved, claiming their posts harassed another employee.

The judge determined firing employees for these comments violated the National Labor Relations Act. The relevant part of the NLRA gives employees “…form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The judge noted “[e]mployees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected…” The judge went on to hold that protected applies equally to Facebook posts as it would to a workplace conversation around the water cooler.

The judge found there was no evidence the employees harassed anyone with their posts and noted “[the employer] was looking for an excuse to reduce its workforce and seized upon the Facebook posts as an excuse for doing so.”

Ultimately, the judge ordered the nonprofit to reinstate the employees and pay them back pay plus compound interest.

Assembly Commits to Study Pension Reform in Future Legislative Sessions

2011-09-09T09:00:00.000-07:00

The California State Assembly passed Senate Bill 827 to declare its intent to study pension reform in future sessions. The bill provides in its entirety:

"It is the intent of the Legislature to convene a conference committee to craft responsible, comprehensive legislation to reform state and local pension systems in a manner that reflects both the legitimate needs of public employees and the fiscal circumstances of state and local governments."

The current legislative session ends at midnight tonight.

Court of Appeal Limits Exposure of Retirees' Private Information

2011-09-06T13:30:00.000-07:00

In Sonoma County Employees’ Retirement Association v. Superior Court (August 26, 2011, A130659) 2011 WL 3795212, the Court of Appeal found Sonoma County’s retirement system did not have to disclose the ages of retirees. The case is the latest in a series of cases where newspapers have used the Public Records Act to identity retirees by name and pension amount. In reaching its decision, the Court focused on language exempting “individual records of members” from disclosure. The retirement system argued this language protected retirees' names, but the Court found the public’s interest in knowing the names and pension amounts of retirees outweighed their privacy interests. However, the court drew the line at disclosure of the retirees' ages, finding retirees' dates of birth and ages at retirement are protected from disclosure under the statute.

Legislative Analyst's Office, CDCR Address Realignment

2011-08-19T15:30:00.000-07:00

In March and again in June, the Legislature passed a series of bills to shift responsibility for some services from the state to local and municipal governments. This process of realignment has far-reaching implications in local law enforcement, probation and corrections. As part of this process, the state will begin diverting criminal offenders and parole violators to county supervision starting October 1st.

With the implementation date approaching, the Legislative Analyst's Office released a report today on the construction and mechanics of realignment as well its recommendations to improve the process. Likewise, the California Department of Corrections and Rehabilitation launched a website yesterday to outline how realignment will impact state and local corrections, juvenile justice administration and supervision of parolees.

9th Circuit: Felony Charges Alone Do Not Justify Peace Officers' Suspension Without Pay

2011-08-18T14:00:00.000-07:00

In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (Aug. 12, 2011, 08-56283) 2011 WL 3524129, the Ninth Circuit Court of Appeals found the County of Los Angeles violated peace officers’ constitutional rights by denying them a meaningful appeal of suspensions without pay. The Court found the mere fact an officer is charged with a felony is not enough to justify unpaid suspensions. Instead, a peace officer should be permitted a post-suspension appeal to challenge whether the charges are supported by valid allegations and to determine if the particular felony allegations against a suspended deputy justify suspension.

The case arose after four deputy sheriffs were charged with felonies and suspended without pay. The charges against some of them were later dropped and the others were exonerated by juries. The deputies challenged their suspensions and sought back pay, but the County refused, arguing unpaid suspensions were proper because felony charges, whether supported by valid allegations or not, were pending at the time of the suspensions. The deputies appealed, arguing they were entitled to challenge more than just the mere fact they had been charged with felonies.

Normally, peace officers are entitled to challenge discipline before it is implemented. However, courts look at felony charges somewhat differently than other types of alleged misconduct because whenever there are felony charges an independent third party has determined there is probable cause to believe the employee committed a serious crime. As a result, some courts have held employees who occupy positions of public trust and high visibility, such as peace officers, can be temporarily suspended without pre-suspension due process if felony charges are filed against them.

However, even though pre-suspension hearings may not be required under some circumstances, meaningful post-suspension hearings are required. The dispute in this case was about what the deputies had a right to challenge in their post-suspension appeal.

The County argued it did not have to let the officers challenge the basis for the felony charges because merely being charged with a felony meant the deputies could not do their jobs. The County relied on a rule allowing it to suspend employees based on a “condition which impairs an employee's qualifications for his or her position.” The Court, however, rejected this claim noting “nowhere does the rule state that a felony charge is necessarily such a ‘condition’—indeed, the rule does not mention felonies or felony charges at all.”

The Court therefore concluded the County “rendered the post-suspension hearings redundant and meaningless [and this kind of] “meaningless hearing is no hearing at all, and does not satisfy the requirements of procedural due process.”

9th Circuit: Last Chance Agreement Did Not Waive Right to Skelly Hearing

2011-08-12T12:00:00.000-07:00

In Walls v. Central Contra Costa Transit Authority (9th Cir., Aug. 3, 2011, 10-15967) 2011 WL 3319442, the Ninth Circuit ruled a public employee’s Last Chance Agreement did not waive his right to a pre-termination (Skelly) hearing. Some employers use Last Chance Agreements to discipline employees and give them a “last chance.” Such agreements usually contain a provision which states if the employee violates any condition of employment, such as coming in to work late or missing a day without calling in, the employee can be terminated.

In this case, the Last Chance Agreement read in part, “non-compliance with the stipulations [of the Last Chance Agreement] will result in your immediate and final termination.” After agreeing to the Last Chance Agreement, the employee allegedly had an unexcused absence from work. The employer then moved to terminate him and did not give him a pre-termination hearing, claiming the Last Chance Agreement rendered the employee “at will,” meaning he could be terminated without just cause and the normal procedural protections that go along with it.

The Court rejected the employer’s claim. The Court recognized public employees have a property interest in their continued employment and must be provided with notice of the charges against them, an explanation of the employer's evidence, and an opportunity to present their side of the story. In reaching its conclusion, the Court examined the Last Chance Agreement and concluded “[it] specifies and modifies what constitutes “just cause” for [] termination, [but] it does not otherwise alter the employment terms of [the employee’s] collective bargaining agreement [and] accordingly, there is no basis on which to conclude that he had become an at-will employee.”

PORAC-endorsed Candidate Wins CalPERS Special Election

2011-08-05T16:30:00.000-07:00

According to a press release from CalPERS, Michael Bilbrey is the apparent winner of a special runoff election to fill a vacancy on the 13-member California Public Employees’ Retirement System (CalPERS) Board of Administration. Mr. Bilbrey was endorsed by the Peace Officers Research Association of California, California Professional Firefighters, California Association of Highway Patrolmen and several other labor organizations.

Court of Appeal Upholds Police Officer's Termination Despite Settlement at Skelly Hearing

2011-08-02T14:00:00.000-07:00

In Ferguson v. City of Cathedral City (2011, E051039) 2011 WL 2582134, the Fourth District Court of Appeal upheld the termination of a police officer even after he agreed to settle his discipline case for a 160-hour suspension. The Court’s decision relied on a letter sent by the officer’s attorney declaring the settlement “null and void.”

A Southern California police officer was arrested and charged with soliciting a prostitute. At the officer's Skelly hearing the parties reached a separation agreement under which the officer would serve a 160-hour suspension and waive his right to appeal in exchange for the City rescinding his discharge.

The officer later heard the Department contacted the District Attorney’s office about his criminal case. As a result, his lawyer sent a letter to the Department, which read in pertinent part, "[d]ue to the departments [sic] efforts to undermine [the officer’s] agreement he now considers the agreement ... null and void.” (emphasis added). The City interpreted the letter as an unequivocal repudiation of the separation agreement, triggering anticipatory breach. It then elected to to treat the agreement as void, proceeding with the discipline case and terminating the officer. The Court upheld the termination, noting the agreement was void once the City’s chose to treat the repudiation as a breach.

While the decision upholds a severe penalty for the officer, the case has a limited impact on other officers as it does not appear the officer effectively withdrew his repudiation of the settlement agreement despite the opportunity to do so. According the fact recitation in the appellate decision, the City appears to have waited more than two weeks to elect to treat the repudiation as a breach. Likewise, the decision alludes to attempts by appellate counsel to characterize a letter sent two years after the "null and void" letter as a withdrawal of the repudiation.

While the Court rejected the officer’s “11th-hour argument” due to the lack of a record below, had the record been developed or had the officer withdrawn the repudiation before the City responded, the legal issue would be much different. It is well established "that repudiation of a contract may be nullified by withdrawal of the repudiation before the injured party has changed his position in reliance thereon." (Pichignau v. City of Paris (1968) 264 Cal.App.2d 138, 141.) As a result, had the officer withdrawn the repudiation early enough in the process, perhaps even after learning of City's plan to terminate him, the outcome of the case would likely have turned on whether the City had relied on the repudiation to its detriment, a much more fact-intensive and individualized inquiry.

Supreme Court Rejects Police Chief's Retaliation Claims

2011-07-29T00:00:00.000-07:00

The U. S. Supreme Court reversed the Third Circuit Court of Appeals in holding that retaliation claims brought under the petition clause of the First Amendment must relate to a matter of public concern to liability. Borough of Duryea, Pa. v. Guarnieri (June 20, 2011) 2011 WL 2437008.

Chief Guarnieri successfully grieved his termination through the applicable collective bargaining agreement. After being awarded reinstatement, the governing body issued eleven directives controlling the manner in which he performed his duties. The Chief filed the second grievance challenging the directives and obtained another favorable arbitration award instructing the agency to withdraw or modify certain directives on grounds, including that they interfered with the delegation of authority, they violated the collective bargaining agreement, and were vague.

Chief Guarnieri then proceeded to bring a Federal action against the governing body and certain of its members under section 1983 based upon his allegation that the directives constituted retaliation for the filing of his initial grievance. Perhaps, in light of the recent Supreme Court ruling limiting the First Amendment speech protections of public employees (Garcetti v. Ceballos), Guarnieri brought his claims under the Petition Clause, rather than the speech clause, of the First Amendment. The Petition Clause protects the right “to petition the government for a redress of grievances.” He also added claims for retaliation based upon denial of overtime payments. Guarnieri prevailed in the District Court, as the jury awarded approximately $142,000.00 in damages and fees. The defendants unsuccessfully appealed to the Third Circuit, arguing that Guarnieri’s grievances did not involve matters of public concern and, therefore, should be afforded no First Amendment protection. In upholding the jury verdict, the Third Circuit stated, “A public employee who has petitioned the government for a formal mechanism, such as the filing of a lawsuit or grievance, is protected under the petition clause from retaliation for that activity, even if the petition concerns a matter of “solely private concern.” The defendant appealed and Supreme Court granted review.

The Supreme Court, in an opinion authored by Justice Anthony Kennedy, held that a public employee must show that his speech related to a matter of public concern in order for the protections of the petition clause to apply. In so doing, the Court, essentially applied the standards set forth in Garcetti v. Ceballos to Petition Clause claims. Garcetti had held that, in order to prevail on a First Amendment retaliation claim, a public employee must show that the speech involved matter of public concern, in that the speech was not part of the employee’s official duties. Guarnieri had unsuccessfully argued that the public concern requirement did not apply to the petition clause-based claims. Justice Kennedy explained the rationale for his decision by asserting that public employees must accept certain limitations on their freedom, and that the public concern requirement is intended to protect the government’s interest. The Court noted that applying a different standard to petition clause claims would allow public employees to circumvent the protections the Court had afforded to governmental interests in Garcetti. The Court’s opinion did elaborate on the definition of “public concern” in suggesting that it related matters such as communication to the public or advancing a political or social point of view beyond the employment context. The Court held that “a complaint about a change in the employee’s own duties does not constitute a petition involving the a matter of public concern.”

The Supreme Court’s decision further limits the scope of constitutional protection afforded to public employees under the first amendment. However, this case involved claims under the United States Constitution, not state or federal labor law. In California, it remains unlawful under the Meyers-Milias-Brown Act for a local government agency to interfere with or retaliate against represented public employees for pursuing a grievance process or other concerted activity such as arbitration. Further, under Government Code section 3304(a) of the Public Safety Officers Procedural Bill of Rights Act, “no public safety officer shall be subject to punitive action, or denied the motion, or be threatened by any such treatment because of ... the exercise of any rights under any existing administrative grievance procedure.”

California Supreme Court to Hear Challenge to City's Purported Fiscal Emergency

2011-07-28T17:00:00.000-07:00

The California Supreme Court recently depublished City of Los Angeles v. Superior Court (Engineers and Architects Association) (2011) 193 Cal.App.4th 1159, and granted review. The decision of our Supreme Court to grant review appears to reflect a greater willingness of the courts to provide judicial oversight of local bureaucrats attempting break contractual obligations by declaring fiscal emergencies, rather than negotiate concessions or seek bankruptcy protection.

Some prominent law firms representing public agencies have been advocating that the Los Angeles case supported their contention that agencies can suspend MOUs merely by declaring fiscal emergencies and that the resulting contract violations could not be arbitrated because declarations of emergency are not subject to review, and that more cities should declare emergencies to avoid contractual obligations. These firms contend that review of cities' declarations of emergency and suspension of MOU terms is an improper delegation of cities' salary setting and budget making powers. Under this rationale, cities' would not need Chapter 9 bankruptcy, because they could avoid court oversight of their true financial situation and any reorganization plan by suspending contractual obligations at their discretion.

This expansive reading of the Los Angeles case conflicts with Prof'l Engineers in Cal. Gov't v. Schwarzenegger (2010) 50 Cal.4th 989, 1043, where in our Supreme Court held the establishment of an emergency does not provide any substantive power to take an action not already authorized, but only avoids meet and confer obligations. The Supreme Court will likely address the ability of local agencies to suspend their contractual obligations through misuse of emergency declarations in this case.

Brown Vetoes AB 455

2011-07-27T14:00:00.000-07:00

Governor Jerry Brown vetoed AB 455 which would have given recognized employee organizations input in the composition of personnel commissions. In his veto message, the governor noted that "[w]hile intended to create more balanced commissions and address concerns relating to individual commissions, this measure imposes a a top down, one-size-fits-all solution on all merit and personal commissions statewide."

CalPERS: "We are back"

2011-07-20T08:30:00.000-07:00

CalPERS posted a gain of 20.7% in its investment portfolio for the fiscal year ending June 30, 2011, marking its largest market gains since 1997. CalPERS investments grew across the board: stock value is up 30.2%, private equity stakes increased 25.3% and real estate assets increased 10.2% in value. CalPERS investments now stand at $237.5 billion, up from $200.5 billion last year and $165 billion in 2009.

The average annual growth rate of CalPERS' investments plays a critical role in the cost of participation in the plan and employer contribution rates. CalPERS' critics regularly attack its target growth rate of 7.75% and make forecasts assuming a growth rate as low as 2-3%. However, as a result of its higher-than-expected growth, CalPERS now stands at 8.38% growth averaged over 20 years despite the big hits to the fund in 2008 and 2009 and appears well on its way to being fully recovered from the effects of the recession.

CalPERS Takes a Stand on Vested Pension Rights

2011-07-18T17:00:00.000-07:00

On Thursday, July 14, 2011, CalPERS released a position paper on the status of pension benefits earned by public servants under the system. The paper, Vested Rights of CalPERS Members: Protecting the pension promises made to public employees, interprets sections of the Public Employment Retirement Law (PERL) CalPERS enforces and related state and federal constitutional provisions. The position paper explains CalPERS pensions are vested rights under the federal and state Contract Clauses. It also explains CalPERS' fiduciary duty to members and cautions CalPERS may take legal action "[i]n the event CalPERS questions whether changes in the PERL or other applicable law may cause an unconstitutional impairment of its members’ vested rights..."

Little Known Group Seeks to Ban Collective Bargaining, Slash Pensions in California

2011-07-13T17:00:00.000-07:00

A Santa Barbara-based organization calling itself the California Center for Public Policy recently announced it has submitted three proposed California constitutional amendments to the California Attorney General to begin the process for qualifying for the ballot. The first amendment would prohibit public sector collective bargaining in California, the second amendment would increase taxes on retired public servants receiving more than $100,000 in pension benefits and the third amendment would raise the CalPERS retirement age to 65 for most employees and 58 for public safety employees. It would not make any change to the retirement age in systems organized under the County Employees Retirement Law of 1937 (CERL). The little known group is not widely believed to have the resources to successfully qualify these initiatives for the ballot.

New Department of Labor App Allows Employees to Track Hours Worked and Wages

2011-07-12T09:00:00.000-07:00

The US Department of Labor has released a free application for iPhones and iTouch that will assist employees in tracking their hours worked, meal periods and rest breaks, overtime and wages owed. The application is titled "DOL-Timesheet" and is available for free on the apple website, and is expected to be released soon for other phones. This application will provide workers a valuable tool to establish their wage and hour claims where the employer has failed to keep accurate records. Under the FLSA and California labor law, employees can establish wage claims by reasonable inference where accurate records are not available.

In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946) the court recognized that employees may establish their claims by reasonable estimates and averages. The court found, "Where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes ... the solution ... is not to penalize the employee ... on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records ... it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the [FLSA]." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).

This application will provide a much more accurate record of hours worked and strong evidence for courts to estimate the claims of other employees. Secretary of Labor Hilda L. Solis stated "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay." The Labor Department indicated the calculator will be updated to allow workers to keep track of their tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest. The application can be found at http://www.dol.gov/whd/ or on itunes.

AB 455: Bill Adds Provision Granting Employee Organizations Input on Appointees to Personnel and Merit Commissions

2011-07-11T08:00:00.000-07:00

The Senate and Assembly both passed a bill introduced by Assemblymember Nora Campos which would add a provision to the Meyers-Milias-Brown Act affording recognized employee organizations input in the composition of personnel commissions. AB 455 provides that where personnel commissions or merit commissions are established to administer personnel rules or the merit system, an employee organization may nominate half the commissioners. The governing body of the agency shall appoint the commissioners nominated by the employee organization as well as the other half of the commissioners that the agency has selected. The commission members then select an additional member as a chairman. The bill also states when there are multiple bargaining units represented by different recognized employee organizations, the organization which represents the largest number of employees will be the organization who nominates the commission members.

This legislation is opposed by labor law firms representing public agencies because it is considered an impediment to their agenda of eliminating promotional rules requiring a testing process and hiring from a list, as well as eliminating seniority based layoffs and bumping rights. Some agencies and their advocates seek to eliminate civil service protections to allow local government bureaucrats to make hiring, promotional and layoff decisions at their whim. California’s civil service systems were created to eliminate patronage and corruption in public employment. This law would provide an equitable balance and transparency to the commissions that have broad discretion in determining hiring and promotional process, disciplinary procedures, and other personnel guidelines. This legislation will enhance public confidence in government by guaranteeing the impartiality and independence of the commissions and the rules they administer.

AB 455 was enrolled on July 6, 2011 and as of now is waiting to be signed by the Governor.

California Supreme Court to Decide Union's Right to Contact Fair Share Payers

2011-06-23T09:00:00.000-07:00

The California Supreme will decide a dispute between Los Angeles County and SEIU about the union's access to fair share payers' names, addresses, and telephone numbers. In County of Los Angeles v. Los Angeles County Employee Relations Commission, the Court of Appeal decided "non-member public employees who have not disclosed their personal information to the Union are entitled to notice and an opportunity to object before disclosure." In its review, the Supreme Court will address two questions affecting all public employee unions in California:

1. Do the state constitutional privacy interests of non-union-member public employees outweigh the interests of the union representing them in obtaining their contact information?

2. Did the Court of Appeal err in directing the trial court to apply a specific notice procedure to protect such employees' privacy rights instead of permitting the parties to determine the proper procedure?

Court of Appeals Rules Side Letter Moots Appeal of Furlough Order

2011-06-21T09:00:00.000-07:00

In San Bernardino Police Officers Association et al., v. City of San Bernardino, Case No. E049925 (June 15, 2011), the Court of Appeal held a side letter settling disputed furloughs meant a lawsuit about the issue was moot. The case started when the City of San Bernardino authorized its City Manager to impose furloughs on police officers.

The POA claimed the threatened furloughs violated the City Charter, its MOU, and the Meyers-Milias-Brown Act. However, a few days after the furloughs started, the City and the POA agreed to a side letter ending the furloughs, extending the MOU one year, and reducing officers’ total compensation by approximately 10 percent.

After learning of the side letter, the Superior Court refused to consider the POA's request it invalidate the resolution authorizing the furloughs and declare, in advance, that any future furloughs implemented pursuant to the resolution would be unlawful. The Court of Appeal upheld the decision, characterizing it as "a request for an advisory opinion." The Court also decided the case was too fact-specific to decide as an issue of public importance.

Wisconsin Supreme Court Upholds Anti-Union Law

2011-06-16T12:00:00.001-07:00

On June 14th, the Wisconsin Supreme Court upheld the state’s anti-union law, referred to as the “Budget Repair Law.” On May 26, 2011, a Wisconsin Circuit Court had invalidated Wisconsin’s anti-union law, finding the Legislature passed it in violation of the state’s open meeting law. Today’s decision overturns the Circuit Court’s ruling.

The Supreme Court found the Circuit Court decision interfered with the powers of the Legislature, violating separation of powers. Separation of powers is a legal concept each of the three branches of government have separate rights and authority. Each branch may only exercise those powers granted by the Constitution and may not exercise any rights or powers which are exclusively granted to another branch. The Court also found the Legislature complied with state constitutional requirements by posting the bill on three bulletin boards approximately one hour and fifty minutes before the vote took place.

Wisconsin’s “Budget Repair Law” is a direct attack on public-sector unions. The bill significantly restricts the scope of bargaining and requires union re-certification every year. The law also bans local governments from deducting dues and allows union members to refuse to pay their fair share for union representation. The battle over the law now shifts to the ballot box where six of the nineteen state senators who voted for the bill face will face recall elections on July 12th.

Court: POBR Guarantees Right to See Complaints, Not Just Summaries

2011-06-14T12:00:00.000-07:00

In Matthew Medina v. State of California, Kasey C. Clark, Chief Counsel for the California Statewide Law Enforcement Association (CSLEA), scored a major victory for peace officers statewide. The Superior Court case establishes POBR gives officers access to actual complaints against them, not just summaries or abstracts. Prior to the Court's decision, some law enforcement departments refused to provide officers with actual complaints, providing instead brisk summaries which sanitized complaints often littered with anti-officer rhetoric and personal biases.

In its ruling, the Court stated unambiguously "the right to read the adverse comment [in a personnel file] requires disclosure of the actual adverse comments [] not merely the general nature of the comments." The ruling affirms Sacramento Police Officers Association v. Venegas, the leading case in the Court of Appeal to address peace officers' right of access to their personnel files. Importantly, the Medina decision joined Venegas in recognizing "some might view a shield of confidentiality as a license to make false allegations of police misconduct."

Wisconsin Court Strikes Down Anti-Union Law

2011-06-07T13:30:00.000-07:00

In State of Wisconsin et al., v. Scott Fitzgerald, et al., Case No. 11CV1244, a Wisconsin Circuit Court Judge struck down Wisconsin’s anti-union law, deciding the state Legislature passed the law in violation of the state’s Open Meetings Law.

In Wisconsin, Republicans in the state senate passed the "Budget Repair Law" less than two hours after announcing the vote, preventing Democrats who left the state to prevent a quorum, from returning in time. However, the Open Meetings Law requires at least two hours’ notice before the Legislature can vote on a bill.

The judge’s ruling does not affect the merits of the law and state Republicans could cure the defects by re-voting on the legislation.

Wisconsin’s “Budget Repair Law” makes it nearly impossible for public-sector unions to exist. Under the bill, unions cannot negotiate about benefits or working conditions and wage increases are capped at the rate of inflation. Members must also vote to keep their union every year. Under the law, union members do not have to pay their fair share, local governments cannot deduct dues, and state workers can stop paying dues at any time.

Court Holds FFBOR Applies to Charter Cities

2011-05-31T12:00:00.000-07:00

In International Association of Firefighters, Local 230 v. City of San Jose (May 24, 2011), the Court of Appeal ruled the Firefighters Procedural Bill of Rights Act (FFBOR) applies to charter cities, even if it conflicts with a city’s charter.

After FFBOR was enacted in 2008, Local 230 requested the City meet and confer over how it would be implemented. However, the City refused, claiming it was exempt from FFBOR because it is a charter city. The City claimed the “home rule” provisions of the California Constitution meant the city charter trumped conflicting state laws, including FFBOR.

The California Constitution gives charter cities special powers to “make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters…” (Cal. Const. art. XI, § 5.) Charter cities have claimed this provision means they do not have to follow the Public Safety Officers Procedural Bill of Rights Act (POBR). Courts, however, have rejected these claims. The Court of Appeal looked to those cases to decide whether charter cities have to comply with FFBOR.

In Baggett v. Gates (1982) 32 Cal.3d 128, the California Supreme Court decided the “home rule” provision of the state Constitution applies to issues that are “strictly municipal affairs,” but not “matters of statewide concern.” The Court of Appeal used the same analysis in Baggett and applied it to FFBOR. The Court noted stable labor relations with public employers, including firefighters, are a matter of statewide concern. It also gave “great weight” to the Legislature’s finding FFBOR addresses a matter of statewide concern.

Supreme Court Upholds California Prison Inmate Cap

2011-05-23T12:30:00.001-07:00

The United States Supreme Court upheld a three-judge court's prison population cap, "gambling with the safety of the people of California." In Brown v. Plata (May 23, 2011), ---S.Ct. ---, the Court upheld a special three-judge court's order California reduce its prison population to 137.5% of design capacity within two years. As a result, the State must reduce the prison population by approximately 37,000 inmates.

Justice Kennedy wrote for the five member majority, arguing the State failed to provide prisoners with basic sustenance, including medical care, violating the Eighth Amendment prohibition on cruel and unusual punishment. The Court affirmed the three-judge court's conclusion clear and convincing evidence showed only a population cap addressed the violations. Justices Scalia and Alito wrote separate dissents, arguing the three-judge court exceeded its authority under the Prison Litigation Reform Act of 1995 and gave too little weight to the risks to public safety.

Justice Scalia described the cap as “perhaps the most radical injunction issued by a court in our nation’s history.” He questioned why releasing “fine physical specimens who have developed intimidating muscles pumping iron in the prison gym” would help “prisoners with medical conditions or severe mental illness.” Scalia further criticized the three-judge court for "relying largely on their own beliefs about penology and recidivism" and characterizing their opinions as factual findings subject to deference on review. In Scalia's view, the Court's decision permits "the policy preferences of three District Judges [to] govern the operation of California’s penal system."

Justice Alito echoed Scalia's concerns, noting the "Constitution does not give federal judges the authority to run state penal systems." Alito cautioned releasing "the equivalent of three Army divisions" from California prisons may "lead to a grim roster of victims." He noted in an 18-month period following similar inmate release in the 1990s, "the Philadelphia police rearrested thousands [] for committing 9,732 new crimes [including] 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses."

Court of Appeals: Individuals' Pension Benefits Public Record

2011-05-11T14:33:00.000-07:00

The Third District Court of Appeals ruled today that the California Public Records Act requires county retirement boards to disclose the names and corresponding pension amounts of its members. The case arose from a newspaper's public record request to a county retirement board organized under the County Employees Retirement Law of 1937.

Government Code Section 31532 provides “Sworn statements and individual records of members shall be confidential and shall not be disclosed to anyone except insofar as may be necessary for the administration of this chapter or upon order of a court of competent jurisdiction, or upon written authorization by the member.” The court held pension amounts are not construed as part of the phrase “individual records of members.” The court construed the “phrase narrowly to mean data filed with SCERS by a member or on a member’s behalf, not broadly to encompass all data held by SCERS that pertains to a member” and rejected arguments that the privacy interests served by non-disclosure outweigh the public’s interest in disclosure. Retirement system members’ address, phone number, and social security numbers remain confidential.

Court Holds LAPD Failed to Accommodate Disabled Police Officer

2011-05-09T18:00:00.000-07:00

In Cuiellette v. City of Los Angeles (April 22, 2011) --- Cal.App.4th ---, the Second District of the Court of Appeal held the Los Angeles Police Department liable for disability discrimination after it terminated a disabled police officer.

LAPD police officer Rory Cuiellette worked for the Department for several years before he was injured on the job and placed on disability leave. He was found 100% disabled on his workers’ compensation claim and remained on leave for several months before contacting the Department about coming back to work. His doctor said he could do administrative work only. The Department assigned him to the Fugitive Warrant Unit in a “purely administrative assignment requiring no field work other than occasionally driving to a nearby courthouse.” However, after just a couple of days, the Department sent him home because he was found 100% disabled.

The Court held the LAPD’s actions constituted disability discrimination under the Fair Employment and Housing Act because the City failed to accommodate Officer Cuiellette’s disability. A jury decided the LAPD failed to accommodate Cuiellette and awarded $1,571,500 in damages. On appeal the City argued Cuiellette’s disability meant he could not perform all of the “essential duties” of police officers and therefore the City had no choice but to let him go. The Court disagreed, noting the LAPD had several permanent “‘light duty’ assignments…for the specific purpose of accommodating disabled officers who wanted to continue to work.”

In reaching its decision, the Court relied heavily on a similar case involving a firefighter. In Stone v. City of Mount Vernon (2nd Cir. 1997) 118 F.3d 92, a firefighter was injured in an off-duty accident. After rehabilitation, he asked to work light duty in the Department’s Fire Alarm Bureau. The Fire Department refused, claiming firefighters had to be able to do fire suppression even if it was not their primary job. However, the Court decided the real question was whether a firefighter could do a particular assignment, noting other people spent their career in the Fire Alarm Bureau without doing fire suppression. In both cases, the Court stressed permanent light duty work was available. The Court noted the outcome might be different if the LAPD only had temporary light duty positions for police officers.

Ninth Circuit Sets Limits on "Policymaker Exception" to Public Employee First Amendment Protections

2011-04-18T14:11:00.000-07:00

In Bardzik v. County Of Orange (Mar. 28, 2011) --- F.3d ---, Cal. Daily Op. Serv. 3692, the Ninth Circuit Court of Appeals clarified when the “policymaker exception” applies to public employees’ First Amendment claims. The case concerned Jeff Bardzik, a Lieutenant with the Orange County Sheriff’s Department. Lt. Bardzik was the Department’s Reserve Division Commander in 2005, in charge of 600 reserve deputies. Then he endorsed the incumbent Sheriff’s rival in an upcoming election. Shortly thereafter, the Sheriff allegedly retaliated by transferring him to a position in Court Operations where he only supervised three people. He was denied pay increases and promotional opportunities even after his transfer.

Normally, an elected official cannot retaliate against a public employee for his or her political beliefs or activities. However, the “policymaker exception” allows elected officials to appoint “some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for.” As a result, if an employee is a policymaker, an elected official can retaliate against him for political activity.

Lieutenants are not automatically policymakers. Instead, whether the policymaker exception applies depends on nine factors: 1) breadth of responsibilities; 2) relative pay; 3) technical competence; 4) power to control others; 5) authority to speak for policymakers; 6) public perception; 7) influence on programs; 8) contact with elected officials; and 9) responsiveness to partisan politics. The Court also suggested a tenth factor, the ability to thwart the elected official’s agenda, was relevant to its analysis.

The Court applied these factors one-by-one to decide whether Lt. Bardzik counted as a policymaker when he was Reserve Division Commander. The Court held four of the factors favored Bardzik: he did not have a relatively high salary; he had to go through superiors before sending official memoranda to reserves; the public was unaware of his role; and it was unclear if he was responsive to partisan politics.

However, the Court found the other five factors warranted applying the policymaker exception. Engaging in a fact-intensive inquiry, the Court found Bardzik had broad discretion over the Reserve Division and often reported directly to the Sheriff. The Court also decided he had special skills and extensive authority over members of the Reserve division. Finally, the Court held Bardzik had significant influence over specific programs in the Division, a distinction the Court identified as “the most critical factor,” citing Walker v. City of Lakewood (9th Cir. 2001) 272 F.3d 1114, for authority. As a result, the Court decided the Sheriff was allowed to retaliate against Bardzik when he served as Division Commander.

The Court stressed, however, the retaliation crossed the line after the transfer to Court Operations. In Court Operations, Bardzik‘s job duties were limited to implementing, rather than making policy. As a result, the Court held his First Amendment rights prohibited continued retaliation for his political activity.

In his partial dissent, Judge Pregerson recast the facts and argued the evidence of Bardzik’s supervisory responsibilities as Division Commander did not support the majority’s conclusion he had significant control of others. Pregerson also questioned the majority’s reliance on Walker, arguing though “influence on programs” was the most critical factor in that case, the Court did not hold it would be in every case. As a result, the dissent contends, Bardzik was not a policymaker in either capacity.

Though the Court applied the "policymaker exception" on these facts, its holding is no victory for management. The holding sets a limit on "policymaker" retaliation where some retaliation renders the employee a non-policymaker. Thus, an elected official may quickly cross this line and incur liability with a series of retaliatory actions. Also, as Judge Pregerson’s dissent illustrates, whether the “policymaker exception” applies to a particular employee is a highly factual question which evades clear rank-based distinctions. Because this is a fact-intensive issue, employers will likely face significant burdens regardless of the ultimate outcome in litigation. Indeed, the Court heard Bardzik on an appeal from summary judgment after substantial discovery, press coverage and a District Court ruling for the employee.

Client Advisory: PERB, Not Courts, to Decide Probation Officers' Duty of Fair Representation Claims

2011-04-08T09:00:00.000-07:00

In Paulsen v. Local No. 856 of Intern. Broth. of Teamsters (Cal. Ct. App., Mar. 18, 2011) 11 Cal. Daily Op. Serv. 3366, the Court of Appeal decided PERB’s exclusive jurisdiction extends to probation officers and to duty of fair representation cases. Click on the link below for a discussion of the case in PDF format:

- Court: PERB Must Decide If Union Breached Duty of Fair Representation to Probation Officer -

State Senate Supports Appeal Rights for Probationary CHP Officers

2011-04-07T09:00:00.000-07:00

Like most public employees, California Highway Patrol officers serve a six-month probationary period when they enter civil service. During the probationary period, they can be terminated without the right to appeal. On March 29, 2011, the California State Senate unanimously adopted Senate Bill 318 to give probationary officers the right to appeal to the State Personnel Board ("SPB"). If the bill is approved by the Assembly and Governor, the SPB could rescind or modify such terminations. The full text of the bill is below.

- Senate Bill 318 -

Proposed Initiative Would Cut Pensions, Raise Retirement Age

2011-04-06T17:00:00.000-07:00

Former Assemblyman Roger Niello submitted a proposed initiative to the California Attorney General, the first step toward getting on the ballot in a statewide election. If approved by voters, the "Public Employee Pension Reform Act" would amend the California Constitution to:

Prohibit collective bargaining over pensions.
Raise the retirement age for current and future employees to 62.
Ban retroactive increases in pension benefits.
Cap retirement benefits at 60% of employees salary based on a three-year average.
Require pensions be calculated on base pay only.
Force employees to pay at least half of retirement contributions.

To pass, the proposed initiative requires a simple majority (50% + 1) and would go into effect immediately. It has no exceptions for public safety professionals, but exempts members of the Legislature. The author of the initiative served in the Legislature from 2004 to 2010.

Before the Public Employee Pension Reform Act can get on the ballot, proponents must collect signatures from approximately 800,000 registered voters, a number equal to 8% of those who voted in the last election for Governor. The full text of the proposal is below.

- Public Employee Pension Reform Act Proposal -

Peace Officers Status and Safety Put at Risk

2011-03-31T08:01:00.000-07:00

In Lake County, California, the Lake County Correctional Officer's Association (LCCOA) has filed a lawsuit to combat Sheriff Frank Rivero's attempt to revoke the peace office status of Lake County correctional officers.

The purpose for the lawsuit is because according to Government Code section 26605.1, local governments cannot change peace officers' status involuntarily. Not only that, but Rivero's attempt to unilaterally change the Lake County correctional officers' status also violates the Meyers-Milias Brown Act, requiring the Sherrif to "meet and confer in good faith" with the Officers' Association before altering their working conditions.

Rivero claims in defense, "I haven't violated anything." Rivero claims that he was not trying to take anything away, but was rather just offering to meet and confer with the officers. He also asserts that the correctional officers were never technically peace officers, because, "They never completed a required POST certified academy, the POST field training program or completed the required probationary period."

Lake County correctional officers became peace officers in 2008 after the Legislature amended the Penal Code to allow peace officers to be employed in jails. The former Sheriff, Rodney K. Mitchell had extended peace officer status to officers, issuing new identification cards identify the officers as such. As part of the peace officer role, correctional officers could carry firearms whenever they were on duty, except in the jail.

A press release from Christopher W. Miller with Mastagni, Holstedt, Amick, Miller & Johnsen additionally states how Rivero's changes would endanger correctional officer health and safety. "Without peace officer status, Lake County correctional officers cannot carry firearms unless transporting prisoners or guarding hospitalized prisoners. However, without firearms, officers are unarmed targets," according to Mike Silva, president of the Lake County Correctional Officers' Association. "The officers perform several public duties in uniform without inmates present and are now without the means to respond to life-threatening situations."

The LCCOA hopes its lawsuit will convince Rivero to leave the existing policies in place, and enter negotiations with the Officers' Association for any future alterations. The Lake County Correctional Officers' Association is represented by Mastagni, Holstedt, Amick, Miller & Johnsen, PC, a Sacramento-based law firm. The Lake County Record-Bee has more information on the case and the law firm representing the peace officers, which is "the largest law firm in California representing peace officers and other public safety professionals."

According to the Record-Bee, "In an effort to avoid litigation, counsel for the Officers' Association sent letters to the Sheriff on March 15 and 17, demanding he rescind his unilateral changes and comply with the Government Code. In response, County Counsel refused to restore officers' peace officer status and negotiate with the association in good faith before unilaterally adopting these changes."

Hopefully the peace officers of Lake County can continue their honored and necessary profession without jeopardizing their health or safety, and an amicable solution can be reached in a timely fashion.