Association for Los Angeles Deputy Sheriffs Victorious in Battle with Sheriff Jim McDonnell

In a recent decision, the Second District Court of Appeal (Second DCA) ruled that the names of peace officers with potential misconduct involving moral turpitude in their personnel files are confidential and not subject to disclosure absent a Pitchess motion.

LA County Sheriff Jim McDonnell wanted to disclose to the LA County District Attorney a department-created list of alleged "Brady" officers so that the District Attorney would know when to file Pitchess motions or inform defendants that a Pitchess motion may be necessary. The Association for Los Angeles Deputy Sheriffs (ALADS) brought an action for an injunction to prevent this from occurring. 

The trial court partially granted ALADS' request and ruled that the Sheriff could not disclose the names of officers unless the officer is a potential witness in a pending criminal prosecution. The Second DCA ruled that disclosing the officers' names would violate the Pitchess statutes, and stated that the Pitchess statutes protect not only personnel records but all "information obtained from these records." Thus, the court viewed the trial court's decision as a ruling that the Pitchess statutes were unconstitutional under Brady when it ruled that protected information could be disclosed without a Pitchess motion. 

The Second DCA found that it must follow the precedent established under Mooc and City of Los Angeles and ruled that the Pitchess statutes are constitutional and mere supplementary to the requirements established under Brady. This is because it has been ruled that a defendant who cannot meet the less stringent requirements of the Pitchess standard cannot meet the materiality standard set by Brady. 

It remains to be seen whether the California Supreme Court will take up an appeal in order to reconcile the Second DCA's ruling with the Supreme Court's previous ruling in Johnson. 

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.

New Bill Expected to Provide Peace Officers with Increased Coverage for Injuries

The tragic mass shooting in Las Vegas has affected lives across the country.  This includes over 200 California peace officers who were attending the concert.  Recently, four Orange County deputies filed workers’ comp claims after suffering injuries during the shooting.  According to Orange County officials, peace officers are entitled to benefits if injured while protecting life or property, regardless of whether on or off duty.  However, the benefits require the injury to have occurred while in the State of California.  Orange County denied the deputies’ claims because the injuries occurred in Nevada.

Tom Daley (D-Anaheim) and the Orange County deputies believe Orange County officials are not applying the law correctly, and argue the claims should be covered.  In order to prevent any further denials of claims, Assemblyman Daley is preparing legislation that would erase any ambiguity in the law.  His bill will guarantee coverage to police officers injured while protecting life or property, regardless of where the injury occurred. 

The bill is expected to be introduced in early 2018.  If the bill is successful police officers would receive the benefits of workers’ comp for injuries from engaging in the apprehension of law violators, protecting life or property, or preserving the peace.  Whether the injury occurred outside the State of California will no longer be cause to deny a claim.

Decision Limits Who May Represent Subject Officers During IAs

A recent decision limited a peace officer’s ability to challenge a department’s internal affairs process.  In Barcelona v. California Department of Justice, the court held an employee could not sue his department without showing they were harmed.  Additionally, the court held it was permissible for a department to prevent a witness from being the subject officer’s representative during the interview.

Alan Barcelona was employed by DOJ.  A citizen complaint led to an internal affairs investigation (IA) being opened.  The first person interviewed was the citizen.  During the interview the citizen told investigators that another person, Kasey Clark, witnessed the alleged misconduct.  Mr. Clark was subsequently interviewed as a witness.  Following Mr. Clark’s interview, Mr. Barcelona continued to desire Mr. Clark as his representative.

DOJ did not let Mr. Clark serve as Mr. Barcelona’s representative.  DOJ cited its notice, which said Mr. Barcelona could have any representative not involved in the investigation.  Mr. Barcelona went forward with the interview using a different representative.  Eventually the IA was completed without Mr. Barcelona being disciplined. 

Mr. Barcelona brought a lawsuit challenging DOJ’s policy.  The lawsuit alleged two separate violations.  First, the policy violated Mr. Barcelona’s First Amendment Rights by denying free association.  Second, the policy violated the Public Safety Officers Procedural Bill of Rights (POBR). Mr. Barcelona claimed POBR gave him the right to use Mr. Clark as his representative in the IA.

The court struck down Mr. Barcelona’s First Amendment claim.  According to the court, Mr. Barcelona failed to show an actual or imminent injury to a legally protected interest.  This was because Mr. Barcelona was not disciplined.  Had discipline occurred, he would have standing to challenge DOJ’s policy.  However, without standing the court would not look at the issue.

The court also denied Mr. Barcelona’s POBR claim.  POBR grants officers the right to have a legal representative during an IA, so long as the representative is not subject to the same investigation.  Mr. Barcelona argued that witnesses in an IA were not “subject to the same investigation.”  However, the court disagreed.  Persons “subject to the same investigation" include witnesses.  DOJ’s policy, preventing witnesses from serving as representatives, was allowed to continue.

Governor Brown Vetoes PORAC Endorsed Bill Allowing Peace Officers to File Unfair Practices with PERB

On October 14, 2017, the Governor vetoed A.B. 530, a Bill introduced by Jim Cooper to provide Penal Code 830.1 peace officers access to PERB.  Mastagni Holstedt assisted in the drafting of this PORAC supported this Bill and both David E. Mastagni and Kathleen Storm testified in favor of the Bill extending PERB's jurisdiction to all peace officers while preserving their ability to seek injunctive relief in court.

PERB possesses expertise in enforcing the MMBA and affords other local public employees access to a cost-effective administrative process to  enforce their bargaining and representational rights.  In light of the prohibition against peace officers engaging in certain job actions in response to unfair practices, A.B. 530 also authorized all peace officers to "seek injunctive relief or a writ of mandamus to preserve the status quo or prevent irreparable harm pending a final determination by the board on any issue upon which a court has not made a ruling."  Currently, non-830.1 peace officer unions may obtain similar injunctive relief, but only if PERB agrees to bring such an action.

Unfortunately, the Governor denied 830.1 peace officers access to PERB by vetoing the Bill.  He explained his veto as follows: "I am returning Assembly Bill 530 without my signature. This bill authorizes peace officers to bring unfair practice charges to the Public Employment Relations Board while preserving their existing right to directly petition a superior court for injunctive relief. No other group has both of these rights and I’m unconvinced that providing such a unique procedure is warranted."