When Using an Internal Investigation as a Defense, Expect Disclosure: Lessons from Paknad v. Superior Court

In a decision of considerable practical significance for public safety unions, the Sixth District Court of Appeal in Paknad v. Superior Court (Apr. 17, 2026), has clarified that an employer cannot invoke the thoroughness of its internal investigation as a shield in litigation while simultaneously withholding the factual substance of that investigation behind claims of privilege. The ruling arises from a sexual harassment, gender discrimination, and retaliation lawsuit in which the employer repeatedly emphasized the quality and independence of its pre-litigation investigation. When the plaintiff sought production of the full investigative reports, the Court of Appeal held that the employer’s defensive reliance on those materials waived both attorney-client privilege and work-product protection as to the factual findings and information bearing on the scope and adequacy of the investigation itself.

Before litigation commenced, the employer retained outside counsel to investigate the employee’s complaints. Counsel conducted witness interviews, reviewed documents, and prepared two detailed written reports containing the employee’s allegations, summaries of the interviews, the investigator’s factual determinations, conclusions, and legal recommendations for future action. The employer provided the plaintiff only with a high-level summary of the findings and later asserted an avoidable-consequences defense in the lawsuit, representing to the court and the jury that it had “thoroughly investigated every allegation” through an “independent, outside investigator” who had interviewed numerous witnesses and reviewed a voluminous record. When the plaintiff moved to compel production of the actual reports and underlying materials, the trial court initially permitted sweeping redactions that stripped away virtually all of the investigator’s factual findings. The Court of Appeal twice granted writ relief, first ordering production subject to in-camera review and then rejecting the trial court’s overly broad redactions on the second petition.

The appellate court’s reasoning rests on a straightforward fairness principle. Once an employer places the adequacy and independence of its internal investigation at the center of its defense, it cannot fairly withhold the very facts that would allow the plaintiff to test that claim. The court expressly held that factual content—witness statements, the investigator’s factual determinations about what occurred, and any information relevant to whether the investigation was thorough and impartial—must be produced. Pure legal advice, mental impressions, or unrelated protected communications may still be shielded, but the factual core of the investigation is not. Even core attorney work product loses protection when the employer voluntarily puts the protected matter at issue.

For California public safety unions, this decision represents a meaningful advance in discovery rights. Public employers routinely contract lawyers to conduct workplace investigations into member complaints of discrimination, harassment, and retaliation. Later, they seek to conceal these investigations citing attorney-client privilege while simultaneously touting that they “did everything right” and “thoroughly investigated.” Paknad makes clear that such representations come at a price.

Unions and their members now have authority supporting demands that the employer produce the actual investigative reports, interview summaries, and factual findings rather than hiding behind vague summaries or privilege assertions. The practical implications are considerable. In future litigation, counsel for public safety members should move aggressively to compel production whenever the employer pleads or argues that it conducted a proper investigation. Unions should also counsel members, during the administrative phase, to request full copies of any investigative reports generated in response to their complaints. Early reliance on an attorney-conducted investigation does not guarantee confidentiality if that investigation later becomes a centerpiece of the defense.

Conclusion

In light of Paknad, public safety unions would be well advised to treat any employer assertion regarding the quality of an internal investigation as an invitation to demand full disclosure. Paknad establishes an important principle in California employment law: an employer who voluntarily invokes the thoroughness and independence of its internal investigation as a litigation defense cannot simultaneously withhold the factual substance of that investigation behind claims of attorney-client privilege or work product protection. 

To that extent, the decision supports access to investigation materials by the employee who was the subject of the investigation—but its support is conditional, not categorical. The case does establish a freestanding right of an accused employee to access investigation materials in the pre-litigation or pre-disciplinary context. Rather, it holds that when an employer places investigation adequacy "at issue", a waiver of both attorney-client privilege and work product protection occurs, and the scope of that waiver is governed by what the employer has voluntarily put at issue. The practical result is that the employee targeted by the investigation gains access to the investigator's factual findings, credibility determinations, and other materials related to the scope and adequacy of the investigation.

The decision potentially levels the playing field by ensuring that members can effectively challenge the very investigations their employers use to justify discipline but then seek to hide behind. California public safety employees deserve nothing less than the ability to test the completeness and fairness of the processes that determine their professional futures.

California Court of Appeal Expands Disclosure of Confidential Police Personnel Records in Pitchess Motions

In a ruling that warrants careful attention from every California peace officer and the unions that represent them, the Court of Appeal in Schneider v. Superior Court (2025) 111 Cal. App. 5th 613 has broadened the scope of materials that must be disclosed following a successful Pitchess motion. The court held that once a trial court identifies Brady material during its in-camera review of an officer’s confidential personnel records, the prosecution is required to turn over not only the names and contact information of potential witnesses but the actual underlying records themselves. This now includes documentary evidence, police reports, audio and video recordings, and any other relevant materials contained within the personnel file.

For decades, Pitchess procedures have functioned as a narrowly tailored safeguard. Pitchess permited limited access to impeachment information while preserving the fundamental confidentiality of officer personnel records. The Schneider decision alters that balance. By mandating production of the full records rather than restricting disclosure to witness identifiers, the ruling exposes a wider array of sensitive internal documents to defense counsel and, in many instances, to criminal defendants. 

What makes this decision particularly troubling is how far it extends beyond the deliberately balanced transparency reforms enacted by the Legislature through Senate Bill 1421 and Senate Bill 16. Those statutes authorize disclosure of personnel records only in cases involving specific categories of serious misconduct, and only after the allegations have been sustained following a complete investigation and after the officer has been afforded a full opportunity to appeal. The Schneider ruling contains none of these safeguards. Instead, it opens the door to compelled disclosure of a much broader range of materials in criminal proceedings, even when the underlying matters involve unsustained allegations or fall well short of the serious misconduct threshold required under the legislation.

Public safety unions have long fought to protect the privacy of these files precisely because they contain highly personal and sensitive information that, if released, could compromise officer safety, reputations, and the integrity of internal administrative processes. The practical consequences for law enforcement personnel are substantial. This ruling increases the liklihood that mere allegations of misconduct and thier investigation, and other confidential materials will enter the public domain through criminal proceedings.  

In individual cases, officers should press for the most restrictive protective orders possible and insist upon rigorous in-camera reviews that limit disclosure to sustained allegations of serious misconduct. While the court’s opinion reflects a legitimate concern for defendants’ constitutional rights, it nevertheless tips the scales too far and creates the potential for unwarranted intrusions of privacy. 

 The decision underscores the continuing need to defend the confidentiality of personnel records as a cornerstone of effective law enforcement operations and the fair treatment of those who ptoect us all. 

Mastagni Holstedt files California Professional Firefighters Amicus Brief in the Ninth Circuit in Support of Judge Donato's Major Ruling Regarding Calculating Firefighter Overtime Rate

In a matter of significant consequence for public safety professionals throughout California, Mastagni Holstedt has filed an amicus curiae brief on behalf of the California Professional Firefighters in the pending Ninth Circuit appeal of David Barnett et al. v. City of San Jose. 

The Honorable James Donato, following a bench trial on stipulated evidence, issued a decision that correctly resolved long-standing disputes over the proper method for calculating the regular rate of pay for salaried firefighters under the FLSA. Specifically, Judge Donato held that the regular rate must be determined using the fixed divisor corresponding to the firefighters’ scheduled hours—224 hours over the 28-day work period—rather than dividing by total hours actually worked. Consistent with the published decision our firm obtained in Padilla v. City of Richmond, (N.D. Cal. 2020) 509 F.Supp.3d 1168, the court further ruled that holiday in lieu payments must be included in the overtime rate. In light of the City’s appeal, our brief respectfully urges the Court of Appeals to affirm this well-reasoned judgment in full.

The district court’s ruling rests on three principal determinations, each of which aligns squarely with the FLSA, its implementing regulations, and binding Ninth Circuit precedent. First, the court properly calculated the regular rate of pay for these salaried firefighters by employing the fixed 224-hour divisor prescribed by 29 C.F.R. § 778.113(a). Because the Memorandum of Agreement establishes a recurring bi-weekly salary intended to compensate a fixed schedule averaging 112 hours—equivalent to 224 hours over the 28-day FLSA work period—the salary methodology, rather than an hourly divisor based on actual hours worked, yields the correct regular rate. This approach prevents the fluctuating and artificially depressed rates that would result from the City’s proposed methodology, particularly in work periods when firefighters, consistent with their 48/96 schedule and frequent unscheduled hours, exceed the average.

Second, the court correctly limited the credit available for the City’s contractual overtime payments to the premium (one-half) portion only. Under 29 U.S.C. § 207(h)(2) and 29 C.F.R. § 778.315, the straight-time component of contractual overtime constitutes wages already owed for hours worked and may not be applied to offset the FLSA overtime premium. The district court’s representative calculation for plaintiff David Barnett illustrated the point with precision: after determining the inclusive regular rate and the FLSA overtime due on hours above the 212-hour threshold, only the 0.5 premium on qualifying contractual overtime hours was creditable, revealing an underpayment of $1,100.83 for a single period. To hold otherwise, the court observed, would systematically underpay straight-time wages and reward the very accounting practices the FLSA was enacted to prevent.

Third, and of particular importance, the court correctly required inclusion of holiday-in-lieu payments in the regular rate numerator. These payments function as compensation for the inherent inconvenience of a 24/7 fire suppression schedule that affords no paid idle holidays, not as excludable remuneration for periods of non-work “due to” a holiday within the meaning of 29 U.S.C. § 207(e)(2) and 29 C.F.R. §§ 778.218 and 778.219. The district court’s analysis, consistent with Padilla v. City of Richmond and the Department of Labor’s 1999 Opinion Letter addressing precisely this issue, confirms that labeling such remuneration “holiday pay” does not render it excludable when it bears no connection to actual idle time. The court further upheld the award of liquidated damages and the issuance of declaratory relief establishing the proper methodology going forward.

Our amicus submission emphasizes the broader ramifications of these holdings for the more than 32,000 career firefighters represented by California Professional Firefighters. A favorable ruling on appeal will preserve a clear, regulation-based framework that harmonizes collective bargaining agreements with the FLSA’s overtime floor. It will eliminate protracted disputes over the proper divisor and crediting rules that have, in the wake of Flores v. City of San Gabriel, frustrated early settlement and out-of-court resolution of claims. Most importantly, affirmance will ensure that salaried firefighters receive the full measure of compensation to which they are entitled for the demanding and often unpredictable hours they work in service of public safety.

The California Professional Firefighters has a vital institutional interest in these issues, and we are gratified to have assisted in presenting them to the Ninth Circuit. Should the Court affirm, the decision will provide persuasive authority across the Circuit, safeguarding reliable funding for firefighting operations while protecting the economic security of the men and women who staff them. We will continue to monitor the appeal closely and will provide further updates as developments warrant.

The proper calculation of overtime is not merely a matter of arithmetic; it is a cornerstone of fair labor relations and the rule of law in public employment.

Ninth Circuit Ruling Confirms Constitutional Limits on State Regulation of Federal Law Enforcement Operations

The Ninth Circuit enjoined California’s attempt to regulate federal officers, affirming Supremacy Clause protections PORAC warned were at stake. 

California State Senator Scott Wiener authored and championed Senate Bill 627, known as the No Secret Police Act, along with its companion legislation, Senate Bill 805, the No Vigilantes Act. Enacted on September 20, 2025, in direct response to the federal government’s expanded immigration enforcement operations, these bills were presented as efforts to promote greater transparency and prevent so-called “secret police” tactics by prohibiting law enforcement officers from wearing facial coverings and requiring non-uniformed officers to visibly display identification while performing their duties. Unfortunitly, Senator Weiner chose to extend these restrictions to California's peace officers, who have no role in immigation enfrocement.  

In a decisive opinion issued April 22, 2026, the United States Court of Appeals for the Ninth Circuit granted the United States an injunction pending appeal in United States v. State of California, No. 26-926. The panel, speaking through Judge Bennett, enjoined the State of California, Governor Gavin Newsom, and Attorney General Rob Bonta from enforcing Section 10 of the No Vigilantes Act—codified at California Penal Code § 13654—against federal agencies and officers. That provision requires non-uniformed federal law enforcement officers to visibly display agency identification, including a name or badge number or both, while performing enforcement duties, subject to misdemeanor penalties for willful violations. The court held that the statute impermissibly attempts to regulate the United States directly in the performance of its sovereign governmental functions, thereby violating the Supremacy Clause and the doctrine of intergovernmental immunity.

The Ninth Circuit’s reasoning rests on foundational precedent. States lack authority to impose operational mandates on federal officers that interfere with the execution of federal duties, even when the legislation is framed as generally applicable. The panel emphasized that the Supremacy Clause shields federal operations from such state interference. The remaining preliminary-injunction factors—irreparable harm, balance of equities, and public interest—likewise favored the United States. Accordingly, the injunction remains in force pending further proceedings.

This ruling powerfully confirms the advocacy of the Peace Officers Research Association of Californiaand the testimony David E. Mastagni delivered on behalf of  PORAC before the California Senate Public Safety Committee on September 11, 2025, in opposition to Senate Bill 627, the so-called No Secret Police Act, and related measures. At that hearing, Mr. Mastagni warned that legislation of this character was blatantly unconstitutional under the Supremacy Clause when applied to federal officers. He explained that the bills could not lawfully regulate federal law enforcement activities yet their severability clauses would leave California’s local peace officers to bear the full brunt of poorly drafted, reactionary restrictions. Despite this ruling, California officers, who play no role in federal immigration enforcement, still face impaired operational flexibility, compromised safety protocols, and the unwarranted stripping of essential immunities, all while the federal government secured an easy victory in court.

The Ninth Circuit’s decision carries immediate and substantial implications for Senate Bill 627. Although the opinion addresses the identification mandate in the No Vigilantes Act, its Supremacy Clause and intergovernmental-immunity analysis applies with equal force to SB 627’s prohibitions on facial coverings by law enforcement officers. The district court had already preliminarily enjoined enforcement of those provisions against federal officers, a ruling California elected not to appeal. The district court found no Supremcy Clause violation, but held the exclusion of Califoria State officers violated intergovernmental immunities by discriminating againt federal officers. 

Following the district court’s earlier ruling, Senator Wiener publicly cheered the decision as “very good news” in light of the judge’s conclusion that “masking is not necessary for law enforcement.” In the same vein, he described the ruling as “a huge win,” asserting that California possessed the power to ban federal agents from wearing masks and that the only adjustment required was to extend the prohibition equally to state officers. He  moved quickly to introduce SB 1004 to extend the facial covering ban to state officers. 

However, the Ninth Circuit’s subsequent analysis demonstrates the futrility of SB 1004, as the core constitutional defects run far deeper than any drafting fix can cure. Extending these operational mandates to more California officers will only compound SB 6727's harm to California’s public safety officers. In light of the Ninth Circuit’s clear articulation of the governing SUpremecy Clause principles, any remaining uncertainty regarding SB 627’s application to federal operations has effectively been resolved in favor of federal supremacy. Notwithstanding the facial neutrality of the statute, it directly regulates how federal agencies conduct their operations and therefore cannot stand as applied to them.

For California’s state and local peace officers, however, the consequences are far less favorable. The severability clauses embedded in these measures ensure that the restrictions, narrow and vaguely worded exceptions, criminal penalties, and—most troubling—the wholesale stripping of critical civil immunities remain fully operative against them. Officers confronting legitimate needs for facial coverings in gang-related operations, riot control, hazardous-materials scenes, or protective details now operate under the constant threat of personal liability and loss of protections long afforded by statutes such as Penal Code §§ 836, 847, and Government Code §§ 820.2, 820.4, and 821.6. The “knowing and willful” standard, as Mr. Mastagni carefully explained in his testimony, attaches to the act of covering one’s face rather than to any intent to violate the law, thereby eliminating good-faith mistake defenses and exposing officers to statutory damages of at least $10,000 even in the absence of actual harm.

In the midst of California’s ongoing law-enforcement staffing crisis, these burdens exacerbate recruitment and retention challenges and chill proactive policing. Public safety unions and their members have long understood that legislation born of political impulse rather than careful drafting ultimately harms the very officers charged with protecting our communities. The Ninth Circuit’s ruling should serve as a cautionary signal to the Legislature that further efforts to extend similar operational mandates against federal officers will will meet the same constitutional fate, i.e. only land on state and local officers and further compromise officer safety and effectiveness.

Mastagni Holstedt's representation of PORAC and California’s public safety unions remains unwavering. We will continue to monitor this litigation closely and support constitutionally sound policies that enhance rather than undermine the ability of law enforcement to perform their vital duties. 

California Court of Appeal Rules Public Safety Union Did Not Waive Right to Bargain Over Outsourcing

    In a published opinion that will resonate throughout California’s public safety labor community, the Court of Appeal has reversed a trial court decision and ruled that the Los Angeles County Professional Peace Officers Association retained its statutory right to meet and confer over the County’s plan to outsource security work to a private contractor. Los Angeles County Professional Peace Officers Association v. County of Los Angeles (2026) B338182 (certified for publication April 10, 2026), held that the union did not clearly and unmistakably waive its right to bargain over the County’s decision to transfer bargaining-unit security work to a private contractor.

    The dispute centered on Article 16 of the parties’ Memorandum of Understanding, titled “Employee Rights in the Event of Transfer of Functions.” That article provided, in pertinent part:

“In the event the County enters into any agreement with another public employer or private entity which involves the transfer of functions now being performed by employees in this representation Unit or the law provides for the transfer of functions now being performed by employees in this Unit to another public or private agency, the County will advise such public or private entity of the existence and terms of this Memorandum of Understanding and will immediately advise PPOA of such agreement or law. In addition, the County will consult with the employer absorbing a County function to encourage utilization of affected employees by the new employer. When a Department’s Request for Proposal is approved by the Chief Executive Officer, the Labor Relations Office will arrange to meet with representatives of PPOA to advise them of this action within five (5) days.

When advance knowledge of the impact of pending changes in function, organization, or operations is available which will result in the abolishment of positions or when there is any major reassignment of functions from one department to another or to another agency, Management will make an intensive effort to either reassign or transfer affected employees to other position for which they qualify, or train affected employees for new positions in order to retain their services.

It is understood and agreed that Management shall have no obligation to negotiate the decision of any reorganization by the County during the life of this agreement.”

    When the County announced its intention to contract out security services at the Kenneth Hahn Hall of Administration, it refused the union’s request to meet and confer on the decision itself. The County asserted that the final sentence of Article 16 constituted a waiver of any obligation to negotiate the decision of any reorganization, which it interpreted to include outsourcing.

    The appellate court carefully examined both the contract language and the governing legal standard under the Meyers-Milias-Brown Act. It reaffirmed that outsourcing decisions affecting terms and conditions of employment constitute mandatory subjects of bargaining. The court reiterated that any claimed waiver of a union’s bargaining rights must be clear and unmistakable. After reviewing the full context of the Memorandum of Understanding provisions, the court concluded that neither the transfer-of-functions language nor the general reorganization clause satisfied this demanding standard.

    The court explained that the notice and consultation provisions in Article 16, while addressing the consequences of a transfer, say nothing about waiving the statutory right to meet and confer. The court further observed that the management rights clause’s reference to “any reorganization” is vague and ambiguous. It could reasonably be read to memorialize only the County’s right under Government Code section 3504 to make fundamental management decisions, such as internal reorganizations or layoffs, without bargaining. The clause does not expressly mention outsourcing or the statutory meet-and-confer obligation.

    The decision underscores a principle of enduring importance in public sector labor law. General management rights clauses serve to preserve traditional managerial prerogatives rather than to operate as silent waivers of the duty to bargain over matters such as subcontracting that directly impact wages, hours, and working conditions. Silence or ambiguous language is insufficient to relinquish important statutory protections. In the court’s view, the County simply failed to carry its burden to demonstrate a clear and unmistakable waiver under the terms of the Memorandum of Understanding.

    This ruling therefore provides valuable guidance for public safety unions negotiating memoranda of understanding throughout the state. Agencies will frequently attempt to rely on broad contract language to bypass the meet-and-confer process on critical issues such as outsourcing. PERB is in accord, scrutinizing such claims rigorously and requiring explicit, unmistakable waiver language before finding that a union has surrendered its rights.

    California public employee unions can take confidence from the outcome, which reinforces the fundamental protections of the Meyers-Milias-Brown Act and serves as a timely reminder that vigilant negotiation and careful review of proposed contract terms remain essential to safeguarding bargaining-unit work.

To read the Court's full Opinion, click here.