PERB: Sheriff's Department Violated Correctional POA's Rights

In a recent decision, the Public Employment Relations Board found the County of Santa Clara violated the MMBA when it banned the union president from trading shifts with other employees.  Like many employers in public safety, the Santa Clara County Sheriff's Department allows employees to trade shifts to get special days off.  The Santa Clara County Correctional Peace Officers Association president made use of the day trades in part to connect with members working different shifts.  Then, the Department banned the union president from doing so ostensibly because he did not repay a day.  But the Department's reasoning fell apart under scrutiny and the Board held the Department's conduct constituted unlawful interference. 

The Board also disapproved of prior decisions that said interference with a union's rights did not necessarily follow from discrimination against a labor leader.  The Board found prior cases, including, Novato Unified School District, are "contrary to the overwhelming weight of PERB case law on this issue."  Therefore, the Board found the Department's retaliatory conduct also violated the union's rights.

Mastagni Holstedt Senior Associate Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.

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

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

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

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

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

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

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

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

Court: "Liking" Sheriff Candidate on Facebook Protected by First Amendment

In Bland v. Roberts (4th Cir., Sept. 18, 2013, 12-1671) 2013 WL 5228033, the federal Court of Appeals for the Fourth Circuit ruled that the act of "liking" a candidate for Sheriff on Facebook by a deputy sheriff is protected speech under the First Amendment. As a result, it is unlawful for a sheriff to retaliated against an employee for "liking" his opponent.

The case started when sheriff’s office employees brought a civil rights action alleging that the sheriff retaliated against them by reappointing them because of their support of his electoral opponent. Two of the employees expressed support for the Sheriff’s opponent by “liking” his Facebook page and posting comments of encouragement for his upcoming election. After the sheriff was reelected, he refused to reappoint the employees to their positions as sheriffs deputies at the jail, a typical process in that jurisdiction.

 They sued, claiming that the sheriff violated their First Amendment rights to free association and free speech. Initially, the District Court sided with the sheriff, finding merely “liking” a Facebook page is insufficient speech to merit constitutional protection, but the Court of Appeals reversed.

The Court of Appeal said when one “likes” a political campaign's Facebook page, the user becomes associated with the campaign. A photo of the user is posted to the campaign’s profile, a link is provided on the users profile that others can use to access with the campaign’s page, and the “thumbs up” icon communicates the user’s support. The Court said the act of “liking” the page is like displaying a political sign in one’s front yard, which the Supreme court has held as substantive speech.

Sacramento County Breaks Promise to Disabled Deputy Sheriff

Eric Henrikson is the lone survivor of a fatal sheriff's helicopter crash that killed two deputies eight years ago. According to former Sacramento Sheriff Lou Blanas, the day of the crash "was one of the worst days in my life and one of the worst days in the history of the Sheriff's Department."  At the time, the County promised to cover Henrikson for life.

Now, Sacramento County has cut off his disability and medical payments, according to Sacramento's ABC news affiliate, News 10.  According to Dep. Henrikson's attorney, David P. Mastagni, the County cut him off with no notice and "what the County is doing to this former deputy is not reflective of what the citizens of Sacramento County want for the deputy."

The News 10 reporters stated the County sued the helicopter manufacturer, Turbomeca, settling for $1.5 million and recently learned Henrikson allegedly settled his claims against Turbomeca for $26 million, noting "maybe he just had a better lawyer."  The reporters condemned the County for cutting off Dep. Henrikson, noting "a deal is a deal and its right here in black and white."

San Francisco Mayor Starts Proceedings to Remove Convicted Sheriff from Office

On Tuesday, March 20, 2012, San Francisco Mayor Ed Lee announced he was suspending San Francisco Sheriff Ross Mirkarimi after the latter refused to resign following his guilty plea Monday to misdemeanor false imprisonment charges.

Article 11 of California's state constitution requires every county have an elected sheriff.  It also allows charter counties, such as San Francisco, to set their own rules for the removal of sheriffs and other officials.  San Francisco's Charter, in turn, proscribes a 5-step process for removal of elected officials guilty of "official misconduct":

1.   The mayor starts the process by suspending the official and appointing a temporary replacement.
2.   The mayor sends formal charges to the San Francisco's Ethics Commission.
3.   The Ethics Commission holds a hearing.
4.   The Ethics Commission makes a recommendation on removal to the Board of Supervisors.
5.   The Board of Supervisors has 30 days to vote on whether to remove the sheriff.  Removal requires a three fourths vote to pass.  Supervisors do not have to follow the Ethics Commission's recommendation.

Because these rules are set by San Francisco's Charter, other rules apply for removal of sheriffs in other counties.

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

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.”

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

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.

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

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.