Third District Court of Appeal Upholds Arbitrator’s Authority to Offset Discipline Sustained by the State Personnel Board in Retaliation Grievance

In a decision of considerable practical significance for California public employee unions and their members, the Court of Appeal for the Third Appellate District has reversed a trial court judgment that had limited an arbitrator’s remedial powers under a memorandum of understanding. The published opinion in Department of Human Resources v. California Correctional Peace Officers Association (2026 WL 1361422, filed May 15, 2026) clarifies that an arbitrator authorized to exercise the remedial authority of a Public Employment Relations Board ("PERB") administrative law judge may order rescission of a suspension previously upheld by the State Personnel Board, together with make-whole relief, where the award rests on a finding of retaliation for protected union activity rather than an attempt to supplant the SPB’s review on the merits. The ruling therefore preserves the vitality of concurrent or sequential grievance arbitration as a meaningful avenue for vindicating rights under the Ralph C. Dills Act even after the SPB has sustained discipline for cause.

Factual Background and Procedural History

Tracylyn Lopez, a correctional officer and CCPOA job steward at Salinas Valley State Prison, received a notice of adverse action for using profanity toward two fellow officers. After that matter was settled with a letter of reprimand, Lopez posted excerpts of the disciplinary materials on a union bulletin board visible to inmate workers, highlighting the surnames of the officers who had reported her. CDCR imposed a 60-workday suspension, which the SPB ultimately upheld on the ground that the posting promoted a “code of silence” and constituted inexcusable neglect of duty and failure of good behavior under Government Code section 19572, subdivisions (d) and (t).

Separately, Lopez filed a contractual grievance alleging that the suspension violated section 5.03 of the applicable MOU, which incorporates the Dills Act’s prohibitions on retaliation for protected union activity. CCPOA pursued the grievance to arbitration. The arbitrator found that CDCR had retaliated against Lopez for engaging in protected speech and representational activity, that the posting itself was not so opprobrious as to lose protection, and that CDCR failed to prove it would have imposed the same penalty absent the protected conduct. The arbitrator therefore ordered CDCR to rescind the notice of adverse action for the posting and to make Lopez whole through backpay and restoration of benefits and rights.

CDCR petitioned the superior court to vacate or correct the award, arguing that the arbitrator had exceeded her powers by interfering with the SPB’s constitutional authority to review disciplinary actions and by undermining public policy against the code of silence. The trial court denied the petition to vacate but granted the petition to correct, striking the provisions directing rescission and make-whole relief. CCPOA appealed.

The Court of Appeal’s Analysis

The Third District began from the well-established principle that judicial review of labor arbitration awards is extremely narrow, particularly in the public employment sector where strong policies favor collective bargaining and the finality of arbitral awards. An arbitrator exceeds her powers only in limited circumstances, including where the award violates an unwaivable statutory right or contravenes an explicit legislative expression of public policy. The public policy exception itself demands a two-part inquiry: identification of an explicit, clear, or well-defined and dominant expression of policy, followed by a determination that the award itself, not merely the underlying conduct, conflicts with that policy.

Applying this framework, the court concluded that the SPB’s constitutional authority under article VII, section 3, subdivision (a) to “review disciplinary actions” constitutes an explicit expression of public policy. Yet the arbitrator’s award did not contravene that policy. The SPB had reviewed the suspension for cause under the Civil Service Act and the merit principle; the arbitrator had examined whether the same discipline constituted retaliation for activity protected by the Dills Act and the MOU. These inquiries, while overlapping factually, are legally distinct. The SPB did not address the Dills Act claim, and the arbitrator did not purport to review or reverse the SPB’s determination on the merits. Instead, the award offset the suspension by providing a contractual remedy for the separate violation. Because enforcing one determination did not require violating the other, no inherent conflict arose.

The court similarly rejected the argument that the award undermined legislative and agency policies aimed at combatting the code of silence. While that policy is undoubtedly important, it does not mandate any particular length of suspension or preclude an arbitrator from finding that discipline was imposed for retaliatory reasons and ordering appropriate contractual relief. The award itself therefore did not conflict with an explicit expression of public policy.

Implications for PERB Retaliation Charges and Disciplinary Appeals Involving Overlapping Circumstances

This precedent confirms that civil service discipline and public sector retaliation claims (including those filed before PERB) proceed on separate but compatible tracks. An adminsitrative appeal ruling upholding discipline for cause does not, standing alone, preclude a finding from PERB (or an arbitrator in a grievance) that the same discipline violated a public sector labor statue (such as the MMBA or the Dills Act) or an MOU. PERB or the arbitrator can also order rescission and make-whole relief, notwithstanding the outcome of the disciplinary appeal. The appellate court noted that an award that offsets rather than purports to reverse or veto the SPB decision survives review and avoids the concerns raised in earlier authority such as State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512. Public sector unions may therefore pursue grievances and PERB unfair practices charges in appropriate cases without a favorable award automatically being judicially nullified on public policy grounds.

The decision also underscores the importance of preserving evidence of retaliatory motive and protected activity throughout the disciplinary process. Where emails, timing, or disparate treatment suggest anti-union animus, a well-developed record can support an offsetting remedy even after the disciplinary action has been upheld in the administrative appeal.  

Considerations for POST Decertification Proceedings Under Senate Bill 2

It is important to distinguish the framework addressed in this case from the decertification process established by Senate Bill 2. Under that statutory scheme, the Commission on Peace Officer Standards and Training, through its Peace Officer Standards Accountability Division, conducts an independent investigation into allegations of serious misconduct as defined in Penal Code section 13510.8. The Commission applies a clear and convincing evidence standard, higher than the preponderance standard that typically governs most disciplinary appeal proceedings, and its review of the entire record is not automatically constrained by prior agency or arbitral findings.

A sustained finding against an officer in a disciplinary appeal or arbitration does not, by itself, relieve POST of its obligation to satisfy this heightened evidentiary threshold. POST remains required to prove its case independently under the clear and convincing standard, even where the SPB, a local civil service commission or an arbitrator has already found misconduct.

It bears repeating that the appellate case involved distinct legal questions: whether discipline was supported by cause under the Civil Service Act, on the one hand, and whether that same discipline constituted unlawful retaliation for protected activity under the Dills Act and the MOU, on the other. By contrast, a POST decertification proceeding under Senate Bill 2 will ordinarily address substantially the same legal question presented in the underlying disciplinary appeal, namely, whether the officer engaged in the alleged serious misconduct, albeit under the heightened clear and convincing evidence standard rather than the preponderance standard typically applied in disciplinary appeals. This distinction between overlapping versus distinct legal inquiries helps explain why the Court of Appeal found no public policy conflict in the arbitration award, while also illuminating why a favorable determination in a disciplinary proceeding may carry greater preclusive potential in a subsequent decertification matter.

By contrast, a favorable factual or legal determination rendered in favor of the officer in the disciplinary appeal on the same serious misconduct allegations could in appropriate circumstances give rise to collateral estoppel or res judicata. Where the traditional elements are satisfied, including identity of issues and sufficient privity between the employing agency and the Commission, such a finding may preclude POST from relitigating those matters in a subsequent decertification proceeding. 

Conclusion

In light of this authority, an unsuccessful disciplinary appeal before the State Personnel Board does not preclude parallel unfair practice litigation. PERB would likely not be precluded from reviewing an upheld disciplinary action for unlawful retaliation under the MMBA, Dills Act, or other labor statute, nor would it be restricted in fashioning appropriate remedies for such violations. The Third District’s opinion represents a meaningful affirmation that carefully framed awards addressing retaliation will withstand judicial scrutiny.  

Arizona Federal Court Bolsters First Amendment Protections for Off-Duty Peace Officers in Protest Retaliation Matter

In a decision issued on May 21, 2026, the United States District Court for the District of Arizona addressed significant questions regarding the First Amendment rights of off-duty peace officers who engage in political expression and counter-protest activities. Although the court denied the plaintiffs’ request for a preliminary injunction that would have ordered the reinstatement of Sergeant Dusten Mullen to paid administrative leave, it delivered a detailed and favorable analysis of the merits of his First Amendment retaliation claim. 

Sergeant Mullen, a Phoenix Police Department supervisor, went to Hamilton High School on January 30, 2026, to check on his son and remained to counter-protest an anti-ICE student demonstration. He was off duty, out of uniform, and did not identify himself as a law enforcement officer. He wore a face covering together with a T-shirt that read “Trump 2024,” which the court recognized as symbolic speech addressing the salient political issue of immigration enforcement. Sergeant Mullen also recorded his interactions with the student protestors and with responding officers, an activity the court held was protected under the well-established First Amendment right to film matters of public interest in public places. Student protestors surrounded him, shouted curses, and threw water on him. He reported the incident to a Chandler police officer and out of frustration commented about allowing students to assault him.

The video evidence and sequence of events later established that Sergeant Mullen’s remark to the Chandler officer reflected frustration with the limited police response rather than any encouragement of assault. The Phoenix Police Department’s Professional Standards Bureau initially classified the matter as a Class II violation that would not result in termination. After media reports surfaced in April 2026 and Phoenix City Councilwoman publicly criticized his off-duty conduct and questioned his continued employment, the investigation abruptly changed course. The lead investigator was directed to elevate the violation to Class III, to sustain an additional allegation without new factual findings, and to complete the report on an accelerated schedule despite repeated requests for more time. A pre-dsiciplinary hearing was held on May 11, 2026, and termination followed three days later. The court found this timeline, together with the investigator’s testimony describing unprecedented pressure and departures from normal procedure, sufficient to support the inference that Sergeant Mullen’s protected activity was a substantial or motivating factor in the adverse employment action.

The court held that Sergeant Mullen engaged in protected First Amendment activity as a private citizen on matters of public concern. It stressed that speech addressing police competency and core political questions such as immigration enforcement occupies the highest rung of First Amendment values. Defendants failed to carry their burden of demonstrating either an adequate justification for treating Sergeant Mullen differently from other members of the public or that they would have reached the same termination decision absent the protected conduct. Their predicted disruption rested on speculation and negative publicity rather than evidence of actual or imminent workplace interference. The court emphasized that core First Amendment speech by an off-duty employee requires a particularly vigorous showing of disruption. The video did not evidence any intent to provoke a crime and the administrative investigation did not support termination prior to the media publicity. The court therefore concluded that the plaintiff demonstrated a strong likelihood of success on the merits of the First Amendment retaliation claim.

Nevertheless, the court found that Sergeant Mullen had not established irreparable injury sufficient to grant a preliminary injunction. Rather, the court hled that monetary damages or back pay awarded in the ordinary course of litigation can compensate any loss of income. The court noted that the public announcement of his termination had already occurred and  the requested relief would not thaw the chilling effect on other officers. It therefore denied the motion for a temporary restraining order and preliminary injunction.

Although the court denied injunctive relief, the court’s favorable treatment of the underlying First Amendment retaliation claim bolsteres the protections afforded public employees. This case confirms that generalized or speculative predictions of disruption will not suffice, particularly where the speech addresses matters of core political concern and occurs off duty. The ruling further cautions agencies against allowing external political pressure or media attention to drive investigative findings without independent evidentiary support. 

The decision reinforces the importance of distinguishing between legitimate operational concerns and content-based objections to an officer’s political views. It further underscores that policies governing off-duty conduct and social media must be narrowly tailored and applied consistently, lest they become vehicles for viewpoint discrimination.  The underlying litigation remains ongoing with an appeal pending of the denial of preliminary injunctive relief.

Appellate Court's Definition of “Great Bodily Injury” Broadens Canine Record Disclosures Under Penal Code Section 832.7

In a published opinion that will shape how law enforcement agencies respond to public records requests involving police canines, the Court of Appeal for the Fifth Appellate District held that the phrase “great bodily injury” ("GBI") in Penal Code section 832.7(b)(1)(A)(ii) carries the same well-established meaning it has long possessed in California’s criminal sentencing statutes. The court denied the City of Fresno’s petition for writ of mandate and affirmed the superior court’s order requiring production of records concerning canine deployments that resulted in GBI, defined as a significant or substantial physical injury. 

The underlying dispute began with a California Public Records Act request from the American Civil Liberties Union of Southern California seeking records from the Fresno Police Department regarding its use of police canines between 2019 and early 2023. The City produced more than nine hundred pages of material but withheld or redacted information from incidents it concluded did not meet its preferred, narrower definition of GBI which was drawn from the “serious bodily injury” ("SBI") standard in Government Code section 12525.2. 

The ACLU filed a petition for writ of mandate, which the superior court granted, holding that the term GBI means a significant or substantial physical injury. Fresno then sought extraordinary relief in the Court of Appeal. The appellate court rejected the City’s construction. 

The appellate court explained that when the Legislature selects a term of art that already possesses a settled legal meaning, courts properly assume the Legislature intended that meaning and its associated body of precedent. Section 12022.7(f)(1) has long defined great bodily injury as “a significant or substantial physical injury,” and decades of case law have refined the application of that standard in the context of sentencing enhancements. The court noted that the Legislature had originally considered the phrase “serious bodily injury” during the drafting of Senate Bill 1421 but ultimately substituted “great bodily injury,” which the court considered a deliberate choice incorpoorating section 12022.7. 

The decision therefore does not open the door to wholesale disclosure of every canine contact or every minor abrasion. The court emphasized that minor or inconsequential injuries do not constitute great bodily injury as a matter of law. Courts must evaluate these questions through fact-specific analysis. The severity of the particular injury sustained in each case controls the determination. 

Pain, superficial lacerations, bruises, or limited punctures will still fall outside the disclosure obligation unless they rise to the level of significant or substantial physical impairment. Courts applying section 12022.7 have recognized that even bone fractures or more serious-appearing wounds may not meet the threshold in every instance. Agencies and officers can therefore continue to distinguish between trivial and qualifying injuries, provided their documentation accurately reflects the medical facts and the extent of any impairment, treatment required, or functional loss.

The ruling produces several practical effects for agencies that deploy police canines. These departments must now produce complete investigative files, use-of-force reports, and related materials whenever a deployment results in significant or substantial injury. This may expand access to more incident records. At the same time, the published opinion supplies clearer guidance by tethering the standsard to an established criminal-law framework. 

As the City of Fresno intends to seek further appellate review, the final contours of the GBI disclosure obligations may ultimately be determined by our California Supreme Court.

Ninth Circuit Victory Bolsters First Amendment Protections for Public Employee Speech on Matters of Public Concern

In a decision of considerable practical significance for California public safety unions and the rank-and-file members they represent, the United States Court of Appeals for the Ninth Circuit has reversed a district court judgment and entered summary judgment in favor of a public university professor who faced investigation, reprimand, and threats of discipline after including a satirical statement in his course syllabus. The ruling in Reges v. Cauce clarifies important boundaries under the First Amendment in the public employment setting and carries implications that extend well beyond the university context.

Factual Background

The case arose when Professor Stuart Reges, a longtime teaching professor in the University of Washington’s Paul G. Allen School of Computer Science and Engineering, incorporated into his introductory computer science syllabus a concise parody of the university’s recommended indigenous land acknowledgment. Reges’s statement invoked the labor theory of property to question historical ownership claims and framed the university’s preferred language as an empty performative act. He viewed the official recommendation as part of a broader diversity, equity, and inclusion agenda that he believed improperly elevated certain groups on the basis of immutable characteristics. The statement was not presented as the university’s position; it was plainly attributed to Reges in the first person and appeared in a document over which faculty traditionally exercise substantial control.

University administrators responded swiftly. They removed the statement from the online syllabus, issued public statements condemning it, solicited student complaints, opened a lengthy disciplinary investigation, withheld a merit pay increase, and ultimately issued a formal reprimand while warning that future inclusion of similar language could result in further discipline. A faculty committee concluded that the statement caused significant disruption, citing student discomfort, one reported leave of absence, and an alleged dropout—claims the Ninth Circuit later found inadequately substantiated.

The district court had granted summary judgment to the university officials, concluding that any First Amendment interests were outweighed under the Pickering balancing test by the university’s interest in avoiding disruption to the learning environment. The Ninth Circuit disagreed in a thorough and carefully reasoned opinion.

The Ninth Circuit’s Ruling

The court first confirmed that Reges’s speech constituted protected academic speech rather than unprotected government speech. Although syllabi are distributed as part of a professor’s official duties, the Ninth Circuit’s precedent in Demers v. Austin establishes that speech related to scholarship or teaching falls outside the Garcetti framework that ordinarily denies First Amendment protection to public employee speech made pursuant to official duties. Reges was commenting on a matter of ongoing public debate, the propriety and factual premises of institutional land acknowledgments, and was not speaking as the university’s messenger. The court noted that the university itself treats syllabi as the purview of the faculty and does not pre-approve their content.

Because the speech addressed a matter of public concern, the court proceeded to Pickering balancing. It held that the university failed to carry its burden of demonstrating that its legitimate administrative interests outweighed Reges’s First Amendment rights. The primary evidence of disruption consisted of student offense, anger, and discomfort—reactions the court deemed an inevitable byproduct of robust academic debate on contested public issues. In the higher education setting, such reactions do not justify adverse employment action against a professor. The court further observed that claims of more tangible disruption, such as students dropping out or difficulties recruiting Native students, suffered from serious problems of proof. One cited student had not even been enrolled in Reges’s course and identified multiple other reasons for taking a leave of absence; the second student referenced in the record did not appear to exist.

The Ninth Circuit therefore directed entry of summary judgment for Reges on both his First Amendment retaliation claim and his viewpoint discrimination claim. It remanded for further proceedings on Reges’s facial challenge to the university’s broadly worded nondiscrimination policy, which authorizes discipline for “any conduct that is deemed unacceptable or inappropriate” regardless of whether it rises to the level of unlawful harassment or discrimination.

Implications for California Public Unions and Their Members

For California public unions and their members, this decision merits close attention. Although the facts arose in a university setting, the  framework governs public employees generally, including peace officers and firefighters. Public safety personnel routinely encounter questions regarding the scope of their rights to comment on departmental policies, social issues, or legislative matters that affect their profession and the communities they serve. The Ninth Circuit’s emphatic rejection of “heckler’s veto” reasoning, i.e. the notion that employee speech may be suppressed simply because it causes offense or emotional distress among colleagues or constituents, provides meaningful protects for publci employees who speak on controversial topics.

Overbroad language of the sort challenged in Reges may prove vulnerable to constitutional scrutiny, particularly where enforcement appears to turn on viewpoint rather than narrowly tailored operational needs.  The decision further underscores that public employers must substantiate claims of actual, material, and substantial disruption with concrete evidence rather than speculation or generalized assertions of harm. Mere predictions of difficulty in recruitment, retention, or internal harmony, without more, may not suffice to overcome an employee’s First Amendment interests when the speech addresses a matter of public concern.

The opinion serves as a timely reminder that the First Amendment exists to protect unpopular and even sharply worded expression on matters of public importance, and that public institutions may not insulate themselves from debate by punishing those who challenge prevailing orthodoxies.The principles articulated by the Ninth Circuit offer valuable tools for preserving the ability of rank-and-file employees to participate meaningfully in public discourse without undue fear of retaliation.

Ninth Circuit Protects First Amendment Rights to Place Political Yard Signs While Drawing Sharp Limits on Internal Job-related Speech

In a decision that offers important guidance for California public safety unions and the rank-and-file members they represent, the Ninth Circuit Court of Appeals in Burch v. City of Chubbuck (2025) 146 F.4th 822 has clarified the boundaries of First Amendment protection in the public workplace. Although the court ultimately affirmed summary judgment in favor of the employer, the opinion carefully distinguishes between protected speech made as a private citizen and unprotected speech made pursuant to official job duties. The ruling reaffirms that off-duty political expression retains meaningful constitutional safeguards while underscoring the narrower protection afforded to internal workplace communications.

Rodney Burch served as the Public Works Director for the City of Chubbuck, Idaho. During a local mayoral election, he placed a yard sign at his residence supporting the incumbent mayor’s opponent. Separately, he engaged in internal advocacy, criticizing the mayor’s management policies and advancing a detailed proposal for the creation of a city administrator position. After the mayor secured re-election, Burch faced requests that he resign, an attempt to remove him through the city council, and subsequent reductions in his responsibilities and decision-making authority. He filed suit alleging First Amendment retaliation.

The Ninth Circuit held that Burch’s political yard sign constituted protected speech. It addressed a matter of public concern and was undertaken in his capacity as a private citizen rather than pursuant to his official duties. By contrast, the court concluded that Burch’s internal criticisms of the mayor’s policies and his structural reform proposals were speech made pursuant to his official responsibilities as a department head. As such, those communications fell outside First Amendment protection under the principles established in Garcetti v. Ceballos. Because the employer demonstrated adequate justification for the adverse actions based on the unprotected speech, and because the changes in Burch’s duties did not rise to the level of constructive discharge, the court affirmed summary judgment for the city.

For rank-and-file public safety employees, this decision carries significant practical weight. Public employees frequently speak out on matters of public concern, including departmental policies, public safety priorities, budget decisions, or local political questions. Burch confirms that classic off-duty political activity, such as displaying campaign signs, posting on personal social media in a private capacity, or otherwise expressing views as a concerned citizen, remains strongly protected. Public employers may not retaliate against employees for engaging in such citizen speech merely because the content is critical of management or touches on workplace issues.

At the same time, the ruling serves as a clear cautionary note about the limits of protection for speech delivered in the course of employment. Internal emails, reports, meeting comments, or proposals that can reasonably be viewed as part of an employee’s official responsibilities will typically be treated as unprotected under Garcetti. This distinction is especially pertinent in law enforcement and fire service agencies, where structured chains of command and operational proposals are commonplace. What may appear to a member as legitimate workplace advocacy can mischaracterized by management as insubordination once it is framed as an official communication.

Public safety unions should therefore treat Burch as a valuable educational tool. It is advisable to provide members with clear guidance on how to separate personal, citizen speech from any expression that could be construed as arising from their official duties. When raising legitimate concerns about public safety or departmental operations, members are generally better served by channeling those concerns through union representatives or other protected avenues rather than through formal internal memoranda or proposals presented in their official capacity.  

While the outcome in Burch favored the employer, the decision does not represent a broad retreat from public employee speech rights. On the contrary, it reaffirms that pure private-citizen speech on matters of public concern continues to enjoy meaningful First Amendment protection. For California public safety unions, the case provides a useful roadmap for how to exercise their constitutional rights safely and effectively. By understanding and respecting the line drawn in Burch between protected citizen speech and unprotected official-duty speech, public employees can more confidently participate in the democratic process while minimizing exposure to retaliation.

Public safety unions must remain vigilant in defending these rights and should be prepared to challenge overbroad applications of Garcetti whenever employers attempt to silence legitimate citizen expression. The First Amendment remains a vital safeguard for those who protect our communities.