Fraternal Order of Police, Fort Pitt Lodge No. 1 v. City of Pittsburgh: A Timely Blueprint for California Public Safety Unions on Representation Rights in Witness Interviews

    California’s Public Employment Relations Board has steadily expanded representational protections under the Meyers-Milias-Brown Act beyond classic disciplinary interrogations to encompass a broader range of employer meetings where employee statements may carry workplace consequences. This development intersects directly with the proposed decision issued by the Pennsylvania Public Labor Relations Board in Fraternal Order of Police, Fort Pitt Lodge No. 1 v. City of Pittsburgh, 57 PPER ¶ 32 (Proposed Decision and Order, 2025). That ruling offers valuable guidance for California police and fire unions when members are summoned as witnesses in grievance arbitrations or related pre-hearing interviews, ensuring that the label of “witness” does not become a vehicle for intimidation or coercion.

    In the Pittsburgh case, Sergeant Jeffrey Tagmyer of the Pittsburgh Police Department was subpoenaed by his union, the Fraternal Order of Police, to testify in a disciplinary grievance arbitration on behalf of another officer. After the hearing was continued, the city arranged a pre-arbitration interview with an assistant solicitor. Tagmyer received a direct order from an assistant police chief to attend the meeting. He arrived accompanied by his union attorney, yet the solicitor refused to permit the attorney to participate. The solicitor repeatedly emphasized that Tagmyer faced no disciplinary exposure from his answers and was appearing solely as a witness. When Tagmyer and his counsel pressed for clarification on whether refusal to answer without representation could result in discipline for insubordination, the solicitor confirmed that it could and threatened to report Tagmyer to command staff as insubordinate if he declined to proceed unrepresented. The interview did not occur, and Tagmyer faced no discipline for his refusal. A later session ultimately allowed limited union presence.

    The Pennsylvania board’s hearing examiner rejected the claim that Tagmyer enjoyed Weingarten rights, concluding that the objective circumstances did not support a reasonable belief that the interview could lead to discipline against him personally. All communications had clearly identified him as a witness to events that did not directly implicate his own conduct. Nevertheless, the examiner found an independent violation of the Pennsylvania Labor Relations Act through coercive interference with protected rights. Participating as a union witness in a grievance arbitration constitutes protected concerted activity. The city impermissibly conditioned that protected participation on an unrepresented interview backed by the explicit threat of insubordination discipline. The solicitor’s statement that she preferred unfiltered answers without union “interference” provided no legitimate justification sufficient to override the chilling effect on protected activity.

    This distinction between the absence of classic Weingarten protections and the presence of coercive interference aligns closely with the trajectory of California PERB decisions. PERB has long held that representational rights arise not only in strictly investigatory interviews where discipline is reasonably feared but also in meetings that may significantly affect the employment relationship or where questioning carries foreseeable consequences, even absent an initial disciplinary label. Recent clarifications reinforce that a meeting styled as non-disciplinary can transform if the employer probes potential misconduct, that employees need not use magic words to request representation, and that employer assurances do not automatically eliminate a reasonable belief in potential adverse outcomes. In the public safety context, pre-hearing witness interviews conducted by internal affairs, command staff, city attorneys, or outside counsel frequently involve topics that could expose a member to impeachment risk, policy violations, or derivative scrutiny. PERB’s emphasis on substantive reality over formal labels means that California unions can invoke protections in precisely the circumstances the Pittsburgh decision identifies as coercive.

    California public safety unions should therefore treat every request for a member to appear as a witness in such settings with the same vigilance applied to disciplinary interviews. The union should promptly demand written confirmation of the interview’s purpose, the specific topics to be covered, the identity of the questioner, and whether attendance is compelled. Where compulsion is involved, the union must secure appropriate Garrity or Lybarger advisements and use restrictions in advance. A careful assessment of potential exposure is essential, focusing on any policy areas the member’s observations or actions might implicate, such as use of force, report writing, scene management, or chain-of-command obligations.

    Unions should anticipate and prepare for common employer tactics. When an employer asserts that representation is unnecessary because the session is merely a witness interview, the response should remind the employer that the reasonable-consequence standard governs and that representation will be present before any questioning proceeds. Once exposure is identified, the union should insist upon reasonable scheduling to permit a representative or counsel to attend and should place on the record that the member appears as a witness while invoking representation because of reasonably foreseeable employment consequences.

    When an employer delays or refuses to clarify compulsion or use protections, the union should insist that such advisements be provided before any potentially incriminating questions are posed. When an employer demands immediate commencement, the union should counter with the legal entitlement to reasonable delay for securing representation and propose specific alternative times.

    The Pittsburgh decision reinforces a principle that California public safety unions have long championed: employers may not convert protected participation in the grievance process into an opportunity for unrepresented, coercive questioning. By systematically invoking and exercising meaningful representation in witness interviews, unions protect individual members from intimidation while preserving the integrity of the collective bargaining relationship and the willingness of officers and firefighters to come forward as witnesses on behalf of their colleagues. Public safety unions and their members facing these recurring situations should consult experienced counsel promptly to evaluate the specific facts, preserve the record, and pursue any available remedies through PERB unfair practice proceedings. The firm remains committed to providing the strategic guidance necessary to safeguard these essential rights.

Conclusions:

Key Takeaways from Fraternal Order of Police, Fort Pitt Lodge No. 1 bearing directly on current California standards:

1. Witness status does not nullify representation rights. The label “witness” cannot be used to deny a reasonable request for union representation where the interview’s context or questioning could reasonably lead to adverse employment consequences.
2. Employer control of the interview has limits. While the employer may control who asks questions and the scope of inquiry, it may not exclude a union representative from meaningfully participating in ways reasonably necessary to protect the member’s interests, including clarifying questions, lodging objections to coercive tactics, and offering brief consultations.
3. No intimidation or coercion. The employer may not condition cooperation on waiver of representation or employ tactics that would reasonably deter an employee from invoking representation, including pretextual “witness-only” framing where potential exposure exists.
4. Process matters. Clear notice of purpose, respect for reasonable delays to secure representation, and preservation of the representative’s ability to advise are essential safeguards.
5. If the interview could foreseeably touch the member’s conduct, judgment, or compliance with policy—even as a bystander—the member may reasonably request representation. 
6. Pre-hearing witness interviews by Internal Affairs, command staff, city attorneys, or outside counsel, though framed as “fact-gathering,” often carry foreseeable employment consequences, including impeachment risk, policy-violation exposure, or derivative discipline.
7. Representational participation is meaningful, not ceremonial. California law, like the Pittsburgh proposed decision, recognizes that representation must permit real-time consultation and non-obstructive advocacy to prevent intimidation and preserve the integrity of the process. 

Parallels with California PERB’s Expanded Protections

    PERB’s recent decisions have emphasized substantive realities over labels. Meetings need not be styled as “disciplinary interrogations” to trigger representational rights where (a) the employee reasonably believes discipline could result, or (b) the employer’s questioning seeks information that could materially affect working conditions, job status, or future disciplinary exposure. In practice, this means:

1. If the interview could foreseeably touch the member’s conduct, judgment, or compliance with policy—even as a bystander—the member may reasonably request representation.
2. Pre-hearing witness interviews by Internal Affairs, command staff, city attorneys, or outside counsel, though framed as “fact-gathering,” often carry foreseeable employment consequences, including impeachment risk, policy-violation exposure, or derivative discipline.
3. Representational participation is meaningful, not ceremonial. California law, like the Pittsburgh proposed decision, recognizes that representation must permit real-time consultation and non-obstructive advocacy to prevent intimidation and preserve the integrity of the process

POST's 2025 Decertification Report: 42,000+ Allegations, But Decertification Remains Rare – What Officers Need to Know

The 2025 Peace Officer Standards and Accountability Division (POSAD) Annual Report offers California peace officers and their labor organizations a clear window into the ongoing implementation of Senate Bill 2's decertification framework. Released by the Commission on Peace Officer Standards and Training (POST), this comprehensive document details the volume of misconduct allegations processed, the outcomes of reviews, and the practical realities of certification actions since the program's expansion in 2023. For unions and their members, the report underscores both the challenges of heightened scrutiny and the relatively low rate of ultimate certification loss, while highlighting areas where proactive steps can help safeguard careers.

POST now holds authority to investigate and act on nine categories of serious misconduct, ranging from dishonesty and physical abuse to sexual assault, bias demonstration, and failure to intercede. The report reveals that since inception, POST has received nearly 42,000 reports of alleged serious misconduct from agencies, including about 18,000 retroactive or "lookback" cases covering incidents from early 2020 through early 2023. Public complaints have also surged, exceeding 3,000 submissions involving more than 1,700 officers.

A significant portion of these case involve retroactive reporting. Of the roughly 17,900 lookback allegations consolidated into unique cases, POST closed more than 15,500 by the end of 2025. Authority for retroactive action remains limited to three categories: dishonesty, sexual assault, and excessive deadly force causing death or serious injury. In total, 203 cases resulted in revocation, suspension, or ineligibility findings, though many fell outside those narrow retroactive grounds.

The Peace Officer Standards and Accountability Division currently manages over 7,100 open cases, with around 3,500 under POST investigation and nearly 9,000 still pending agency-level internal affairs completion. Among closed cases where agencies completed investigations and POST conducted independent review, more than two-thirds were initially reported as not sustained, exonerated, or unfounded. POST notes minimal discrepancy between agency findings of non-sustained allegations and its own conclusions. This is expected given the higher clear and convincing standard applied to decertification cases, as opposed to the preonderance of the evidence standard typically applied in dsiciplinary matters. Sustained findings from agencies appear in about 24 percent of pending POST cases, marking them as priorities for deeper scrutiny.

Public complaints show even lower rates of severe outcomes. Roughly 41 percent of public submissions have closed, with about 85 percent of those determined not to involve serious misconduct. Non-jurisdictional or non-actionable matters account for most of the remainder, and only around 1 percent of closed public complaints led to certification action. Overall, public complaints have triggered certification consequences in just 0.4 percent of instances.

The advisory board and commission review process remains deliberate. By late 2025, the board held seven hearings on 22 cases, recommending suspension or revocation in all but two, with the commission generally upholding disciplinary recommendations. Appeals from officers have declined, dropping to 31 percent of notices sent, compared to higher rates in earlier years. Cases involving DUI violations under the "acts that violate the law" category often see higher appeal rates and more frequent stipulated settlements, allowing officers to retain certification under probationary terms with monitoring and rehabilitation requirements.

These statistics reflect a system still processing a massive initial influx while closing cases at an increasing pace. The vast majority of allegations do not result in decertification, yet the potential consequences remain serious for those that meet the clear and convincing evidence threshold in defined serious misconduct categories.

For peace officers and their unions, the report carries important practical lessons. Thorough documentation during incidents, prompt cooperation with agency investigations, and adherence to departmental policies remain essential to reducing exposure. Officers facing allegations should engage experienced representation early to navigate agency inquiries and any subsequent POST proceedings. Unions play a vital role in educating members about reporting obligations, ensuring fair investigations, and advocating during appeals or stipulated resolutions.

The low overall rate of certification revocation demonstrates that the process, while rigorous, does not automatically equate to career-ending outcomes in most instances. Nevertheless, the continued volume of reports and public complaints signals that scrutiny will persist. Staying informed about POST guidelines, participating in ongoing training, and fostering strong union support networks help mitigate risks and protect the rights of those who protect us all.

Announcing: Partner Kathleen N. Mastagni Storm Appointed to Wildlife Technology Research and Development Review Advisory Board

    Congratulations to Mastagni Holstedt A.P.C. Partner, Kathleen N. Mastagni Storm, who was appointed as an Advisory Board Member for the Wildlife Technology Research and Development Review Advisory Board by California Assembly Member, Robert Rivas, who represents District 29. 

    Established in 2021 by California Senate Bill 109, the Office of Wildfire Technology Research and Development ("OWTRD") serves as the central organizing axis within the Department of Forestry and Fire Protection to study, test, and advise regarding procurement of emerging technologies and tools to more effectively prevent and suppress wildfires within the State. 

    The Advisory Board is tasked with reviewing the Office and serving OWTRD as an advisory entity. The Board is made up of nine members, including representatives from state agencies, the fire service, academia, and other stakeholders. 

    Following her appointment to the Board, Kathleen shares: 

"For twenty years, I've fought to protect and empower California firefighters and first responders who risk everything to keep our communities safe. This role allows me to continue that commitment by helping advance innovative technologies that will make their work safer, more effective, and ultimately save more lives—it’s a privilege to give back in this meaningful way." 

    At Mastagni Holstedt A.P.C., Ms. Mastagni Storm dedicates her practice to labor and employment law, with a focus on representing public safety professionals, including firefighters and first responders. As an attorney who has dedicated her career to representing first responders, she brings a uniquely informed legal and practical perspective to her appointment. Her firsthand experience advocating for emergency personnel has given her a deep understanding of the operational realities they face and the critical importance of effective equipment and resources. The Firm congratulates her on this well-deserved honor and looks forward to her continued contributions! 

 

California Supreme Court Clarifies Limits on Declaratory Relief and Records Preservation Under the California Public Records Act

 A recent decision from the California Supreme Court offers important guidance for public safety agencies and the officers they employ regarding obligations under the California Public Records Act (CPRA). In City of Gilroy v. Superior Court (2026) __ Cal.5th __, the Court addressed whether declaratory relief remains available after all nonexempt records have been produced and whether agencies must preserve records they have properly withheld as exempt while a request is pending.

The case arose from requests by a nonprofit legal services organization for Gilroy Police Department body-worn camera footage related to homeless encampment cleanups. The City withheld certain footage under the investigatory records exemption, produced other responsive nonexempt material, and ultimately followed its standard one-year retention policy for routine body-camera video. Some older footage had already been automatically deleted before the requests specifically identified body-camera video as the target.

The Supreme Court held that declaratory relief is available under the Public Records Act to address an agency’s past conduct in responding to a request, even when the matter would otherwise appear moot because all existing nonexempt records have been disclosed. Such relief serves the CPRA's purpose of clarifying rights and obligations and deterring future violations that could affect public access.

At the same time, the Court unanimously affirmed that the CPRA imposes no independent duty on agencies to preserve records they have claimed are exempt from disclosure. The Act is a disclosure statute, not a records-retention statute. Agencies remain free to follow applicable retention schedules established by statute or local policy, including the one-year retention period commonly applied to routine body-worn camera footage that is not evidentiary. The Court rejected arguments that a three-year preservation obligation should be read into the CPRA based on the general statute of limitations.

This ruling carries direct practical significance for public safety employees and the agencies that represent them. Body-worn camera footage, drone surveillance video, and other recordings frequently contain sensitive information about officers, tactics, or members of the public. When such material is properly withheld under an exemption, such as the investigatory exemption or Pitchess, the agency is not required to retain it indefinitely simply because a Public Records Act request has been received. Routine destruction in accordance with law does not, by itself, violate the Act.

The decision may also provide for declaratory relief to determined disputed interpretations of CPRA disclosures that affect employee organizations or their members, such as disputes over the scope and interpretation of disputed disclosures under Senate Bill 1421 and related statutes governing peace officer records. Under this decision, disputes over past disclosed can potentially be adjudicated to obtain prospective determinations affecting future requests. Agencies may continue to apply deletion policies with confidence that compliance with statutory retention periods will not expose them to liability under the Public Records Act for records properly claimed as exempt.

As always, each Public Records Act request and retention decision must be evaluated on its specific facts. Officers or agencies facing novel or aggressive requests for personnel-related materials, body-camera footage, or drone surveillance video are encouraged to consult experienced counsel promptly to ensure both compliance with disclosure obligations and protection of legitimate privacy interests.

David E. Mastagni Testifies Against SB 747 on Behalf of PORAC Before the Senate Judiciary Committee

On January 13, 2026, David E. Mastagni appeared before the Senate Judiciary Committee to deliver testimony on behalf of the Peace Officers Research Association of California in opposition to Senate Bill 747, referred to as the No Kings Act by its proponents. This legislation, authored by Senator Scott Wiener, aims to establish a new state cause of action for individuals deprived of their constitutional rights under color of any law, mirroring the framework of federal Section 1983 claims but extending potential liability to a broader range of actors, including federal officers. Proponents argue that the bill addresses accountability gaps in cases where federal remedies, such as those under Bivens actions, prove inadequate, particularly in areas like immigration enforcement and election interference. However, as Mr. Mastagni emphasized in his testimony, the measure in its current form introduces unnecessary duplication and risks undermining established legal balances without meaningfully enhancing protections.

Building upon our prior post examining SB 747 and its potential implications for public safety personnel, Mr. Mastagni's testimony highlighted PORAC's core concerns with the bill's redundancy and its unintended consequences for California public employees. He explained that the Tom Bane Civil Rights Act already provides a robust mechanism for addressing constitutional violations, offering broader coverage than Section 1983 by encompassing interference through threat, intimidation, or coercion, even outside the color of law. This existing statute renders SB 747 superfluous, as it effectively allows suits against federal officers in their individual capacities where appropriate. Mr. Mastagni stressed that Supremacy Clause immunity would likely continue to protect federal actors operating within their authority, leaving the bill's practical impact confined largely to state and local employees who are already accountable under multiple frameworks.

A central theme of the testimony focused on the dangers of duplicative liability for California public servants. Mr. Mastagni articulated that by codifying a new cause of action akin to Section 1983 without adequate safeguards, SB 747 would layer additional exposure onto peace officers, teachers, social workers, and other state workers who currently face accountability through Section 1983 and the Bane Act. Such overlap not only invites increased litigation and potential inconsistencies in legal standards but also threatens to chill the essential duties of these professionals, deterring them from performing their roles effectively amid heightened fears of personal financial ruin. He underscored that this expansion fails to advance genuine accountability, as federal sovereign immunity doctrines, as affirmed in cases like Cheng v. Speier, 609 F. Supp. 3d 1046 (N.D. Cal. 2022) would often preempt claims against federal officers even if brough in their individual capacities because courts look to the "real party in interest." Where the suit challened the performance of official duties, the United States would liekly be deemed the real party in interest. 

To address these issues while maintaing the bill's intent to close legitimate gaps in constitutional remedies, PORAC's proposed amendments to the bill. These amendments would exempt any public employee (whether federal, state or local) already subject to liability under Section 1983 or Bivens v. Six Unknown Named Agents, thereby preventing redundant lawsuits and ensuring uniform treatment across federal, state, and local actors. Additionally, the amendments would reverse the bill's savings clause, rendering the entire measure inoperative if a court determines that sovereign immunity bars its application to federal officers. 

State and local public employees were sept into this bill due to the author's cocerns that including onyl federal employees would discriminate against federal employees. However, these amendment comport with the principles of intergovernmental immunity, as articulated in United States v. Washington, by promoting equity though application of evenhanded standards without discriminating based on governmental status. In fact, these modifications would transform the bill into a bona fide mechanism for filling accountability gaps and ensuring all public employee are subject to identical accountablity for Consittutional violations.  

PORAC recognizes the importance of ensuring accountability for constitutional violations where federal remedies fall short, but insists that any reform must treat all public employees fairly and avoid burdensome redundancies. “PORAC supports closing genuine gaps in constitutional accountability,” said Brian R. Marvel, PORAC President. “But we must do so in a way that treats all public employees fairly, avoids redundant and burdensome litigation, and fully complies with federal law. The proposed amendments achieve that balance.”

The testimony, which can be viewed in the embedded video below, reflects PORAC's commitment to advocating for reasoned legislation that protects both civil rights and the professionals entrusted with public safety.

Senate Bill 747 advanced through additional Senate proceedings despite California law enforcement opposition and on January 27, 2026, the California State Senate passed the bill on a 30-10 party-line vote, sending it to the Assembly for consideration. T

For further coverage, see the Los Angeles Times articles by Dakota Smith quoting Mr. Mastagni and PORAC representatives: Lawsuits against ICE agents would be allowed under proposed California law and After Minneapolis shootings, California advances a bill allowing lawsuits against federal agents.