Thursday, December 29, 2011

California Supreme Court Upholds Abolition of Redevelopment Agencies

In an opinion sure to have state-wide impact on the nearly 400 existing redevelopment agencies, the California Supreme Court held, “Redevelopment agencies ... do not have protected right to exist that immunizes them from statutory dissolution by the legislature.”  The ruling in California Redevelopment Assn. v. Matosantos (Cal., Dec. 29, 2011, S194861) 2011 WL 6822391, has broad implications for for public safety services.  Redevelopment agencies had been used to siphon local revenue away from core services, such as law enforcement and fire protection, but Thursday’s ruling makes it much more difficult for cities and counties to continue the practice.

The Court ruled on two state laws addressing so-called “Redevelopment Agencies.”  The Court held, “Assembly Bill 1X26, the Dissolution Measure, is a proper exercise of the legislative power vested in the legislature by the State Constitution.”  The Court explained that the power to create entities such as redevelopment agencies carried with it the corollary power to dissolve those entities.  However, the Court invalidated the measure’ companion bill, A.B. 1X27, which conditioned further redevelopment agency operations on additional payments by the agencies’ community sponsors to state funds benefitting schools and special districts.  The Court found this mandate violated Proposition 22, which amended the Constitution to prevent the state from redirecting redevelopment funds.

The opinion also chronicles how community redevelopment agencies, formed to combat urban decay, developed into the principal instrument of economic development for most cities.  These agencies principally acquire and transfer property on favorable terms for residential or commercial development.  Unable to levy taxes, the agencies rely on tax increment financing, whereby the property tax revenues for government entities other than the redevelopment agency are frozen, while revenues from any increase in values are awarded to the redevelopment agency on the theory that the increase is the result of redevelopment. The tax increment financing has, “sometimes been misused to subsidize the city’s economic development through the diversion of property tax revenue for other tax entities.”  The agencies are used to shield property tax revenue from other governmental agencies and create a shell game amongst local governments with respect to property tax funds.

The tax increment financing is a hot political issue because of the arguable unfair advantage it provides cities over school districts and local taxing agencies, and the loss of revenue to the state’s general fund.  While Governor Brown considered eliminating redevelopment agencies altogether as a partial mean of closing the state’s projected budget deficit, the legislation enacted “freezes” conditions by placing restrictions on modification of existing plans and barring creation of new agencies.  The legislation was intended to preserve redevelopment assets and revenues to fund core local services, i.e. public safety and education.  The dissolution component transfers control of redevelopment agency assets to the local public entity that created the agency and requires performance of existing obligations.  The Court invalidated the provision that created an exemption for agencies that agreed to make specified payments to other governmental funds.

Saturday, December 17, 2011

Paper: Police vs. Stockton, Round 1

The Stockton POA was in court Friday trying to block the city's attempt to impair their MOU based on a purported fiscal emergency.  The city claims it can impair existing labor contracts because the city council passed a resolution declaring a fiscal emergency.  Mastagni Law attorneys David P. Mastagni, David E. Mastagni, William M. Briggs, Isaac S. Stevens and B.J. Pierce represent Stockton POA in the action.  A ruling is expected before the end of the year.  Read more about the case in the Stockton Record's article Police vs. Stockton, Round 1.

Thursday, December 15, 2011

CalPERS Refutes Stanford Pension Claims

CalPERS released a rebuttal Tuesday to the Stanford Institute for Economic Policy Research's (SIEPR) most recent claims about CalPERS' long-term liabilities.  The Stanford report grabbed headlines claiming CalPERS has a significant unfunded liability, based largely on artificially low estimates of CalPERS investment returns.  The SIEPR projections getting the most attention are based on very conservative projected rates of return for CalPERS investments, between 4.5% and 6.2%.  However, as CalPERS points out, its 20-year average investment return is 8.4% and it earned 21.7% on its investments last year. Using these historical rates, rather than Stanford's hypothetical rates, CalPERS is close to funding levels most experts agree are adequate for pension systems and is rapidly recovering from investment losses in 2008 and 2009.

Wednesday, December 14, 2011

Full Disclosure Network Profiles ASA-DOJ Lawsuit

On Sunday, December 11, 2011, the Full Disclosure Network released a profile of the lawsuit filed by the Association of Special Agents- Department of Justice.  The lawsuit challenges budget cuts that defunded of the DOJ’s Bureau of Narcotic Enforcement (BNE) and Bureau of Intelligence and Investigations (BII).  Mastagni Law attorneys David P. MastagniDavid E. Mastagni and Isaac S. Stevens represent ASA-DOJ in the action.

Monday, December 12, 2011

Private-Sector Firefighters File Class Action Against Wackenhut Over Alleged Employer Abuses

Several private-sector firefighters filed a class action lawsuit Tuesday against private security company Wackenhut, alleging several serious wage and hour violations and other employer abuses.  The lawsuit alleges firefighters working on Department of Defense contracts in Afghanistan and Iraq were required to work 24 hours a day, but only paid for 12 hours, required to have walkie talkies to their ear during sleep, and were frequently called out on a fire or other emergency only to be sent back to bed in the middle of the night and denied pay for their time.

The lawsuit alleges firefighters who complained were told “You have two choices, aisle or window,” or, “chicken or beef,” meaning they would be fired and flown back to the United States.  The eleven-count complaint seeks damages for unjust enrichment, breach of contract, fraud and deceptive trade practices.  Wackenhut has faced several lawsuits in the past about its employment practices.  In 2008, Mastagni Law attorneys David P. Mastagni and David E. Mastagni won a seven-figure award for Wackenhut employees over wage and hour violations.

Monday, December 5, 2011

Fox News: Stockton Cops Waging War Over Contract Rights

Fox News Commentator Tom Sullivan says he's "with the police on this one," weighing in on a lawsuit between the Stockton POA and city manager Bob Deis.  He notes the number of officers is down 25% and crime is at record levels in Stockton.  See the full clip here.  Mastagni Law attorneys David E. Mastagni, Isaac S. Stevens, and B.J. Pierce represent the Stockton POA in the matter.

Thursday, December 1, 2011

Court of Appeal Recognizes Corrections Professionals' Special Expertise

In Ochoa v. Superior Court (2011) 199 Cal.App.4th 1274, the Sixth District Court of Appeal ruled superior courts must consider inmates' rights to view confidential information to challenge parole denials on a case-by-case basis and directed the court to consult corrections professionals to help it decide what the inmate's attorney could receive. The case went on appeal after a superior court judge ordered a warden to choose between producing unredacted copies of confidential information to a prisoner or opposing prisoner's petition without relying on confidential information. The Court rejected such a blanket rule and acknowledged corrections professionals have a special role to play in determining why records should be confidential.

In reaching its decision, the Court observed:

[Q]uestions of confidentiality are complex and can only be made by trained, experienced correctional authorities knowledgeable about the inmate in question, the entire content of his file (not just the contested documents the court reviews), prison life in general, morality and ethics of the prison setting, prison relationships, and the rehabilitative process.  In many cases the reasons for confidentiality may not spring from the face of the document but may be based on other factors in the inmate's file or other conditions in the institution, or a psychological factor that would require expert analysis to appreciate.’ ... ‘Such a hearing would allow the custodian of records ... to explain the significance of the documents and the reasons for their being withheld.  Anything less would have the court acting in a vacuum, unable to obtain or use the factual tools which are essential to an informed judgment.’

As a result, the Court of Appeal ordered the superior court to set an in camera hearing with corrections professionals to determine how much, if any, of the confidential files could be turned over to the inmate's attorney.

Tuesday, November 29, 2011

DOJ Special Agents Sue to Stop Budget Cuts

The Association of Special Agents - Department of Justice filed a Verified Petition for Writ of Mandamus and Complaint to stop the state from laying off approximately 200 special agents.  The layoffs threaten to close over two thirds of BNE task forces.  According to the petition, the layoffs are an infringement of the Attorney General's constitutional and statutory authority to determine the DOJ's functions and allocate resources within the Department.  The complaint seeks injunctive and declaratory relief.  Mastagni Law attorneys David P. Mastagni, David E. Mastagni and Isaac S. Stevens represent ASA-DOJ in the action.

Wednesday, November 23, 2011

Court Upholds Peace Officers' Right to Sue Over Dissemination of Personnel Records

In Olivera et al. v. Siemens, et al., Case No. S-CV-0029390, the Placer County Superior Court upheld peace officers' right to seek redress for dissemination of their personnel records, overruling a city's demurrer.  The officers filed suit for invasion of privacy after a former IA sergeant took and distributed a copy of their IA files to officers at another agency.  The city then filed a demurrer, challenging the ability of peace officers to bring a civil suit over disclosure of their personnel files. The Court found the officers could proceed with their claims for invasion of privacy and intrusion into private affairs, noting the alleged dissemination of their personnel records was "sufficiently outrageous" to trigger liability under Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272.

The Court also upheld the officers' right to proceed with their claims on intentional infliction of emotion distress, negligent infliction of emotion distress, and injunctive relief ordering the defendants to retrieve and destroy unlawfully disseminated records.  The plaintiffs are represented in the matter by Mastagni Law attorneys David E. Mastagni, James B. Carr and Isaac S. Stevens

Monday, November 21, 2011

California Supreme Court Issues Landmark Decision Affirming Public Employees' Vested Rights

In Retired Employees Association of Orange County, Inc. v. County of Orange (November 21, 2011) 2011 WL 5829598, a unanimous California Supreme Court ruled public employees can receive constitutionally-protected vested rights by way of implied contract terms.  The holding means public employers can be liable for promises made to employees, even if they do not formally adopt them by ordinance.  The case has been closely watched for its broad implications on labor relations, employee compensation, and pension benefits.

The case arose after Orange County substantially increased the cost of retirees' health insurance premiums by splitting retirees into a separate pool from active employees for calculating premiums.  The retirees filed suit in federal court, arguing they have a vested right to premiums calculated from a joint pool.  The County claimed the retirees have no vested rights because the MOUs under which they retired did not expressly indicate how the cost of retiree health benefits would be calculated.  The District Court sided with County, finding the County could not be liable because it did not explicitly confer vested rights through an ordinance.  The retirees appealed and the federal Court of Appeals asked the California Supreme Court to decide the issue.

The Court held the County could be held liable for its promises to employees, regardless of whether it expressly adopted them through an ordinance.  The Court reasoned employees could hold their employer accountable for the implied terms of a contract, such as the duration of a benefit.  As a result, the Court concluded, "[w]hether an implied term creates vested rights... is a matter of the parties' intent" and general contract principles apply to determine the intent.

The Court went on to reject the County's argument that vesting should be treated differently, noting "[n]either County nor amici curiae [] offer any legal authority for this distinction."  As a result, the Court concluded, "[v]esting remains a matter of the parties' intent."  Once intent is established, the implied terms are treated as part of the contract and are protected by the Contract Clause of the California and federal constitutions.

Wednesday, November 16, 2011

Court Blocks Dissidents' Attempt to Split Correctional Peace Officers' Union

The Santa Clara County Superior Court blocked an attempt by dissident union members to split the Santa Clara County Correctional Peace Officers' Association in two.  In May 2011, a minority of SCCCPOA board members, including the vice president, formed a rival union and filed a petition to represent new peace officer classifications.  The petition was filed months after the window period for decertification and unit modification petitions.

However, rather than reject the untimely petition, the County began to process the petition and attempted to schedule a decertification election even though SCCCPOA and the County were in the middle of contract negotiations.  The County claimed it should be excused from following the established window period because it was impossible for the rival group to comply and asserted the County could ignore the rules in special circumstances.  SCCCPOA then filed a Petition for Writ of Mandate to compel the county to reject the untimely petition.

The Court granted SCCCPOA's petition, rejecting the County's claims.  First, the Court found the local rules establishing window periods for unit modification and decertification petitions are mandatory.  Second, the Court noted there is no "impossibility" exception to Government Code section 3507.1, which requires local agencies to follow their local rules adopted pursuant to the MMBA.  Finally, the Court held the MMBA does not permit case-specific decisions to ignore local rules.  As a result, the Court agreed to issue a writ of mandate compelling the County to reject and refuse to process the rival group's petition.  Mastagni Law attorneys David P. Mastagni, Kathleen N. Mastagni Storm, and Jeffrey R. A. Edwards represented SCCCPOA in the action.

Tuesday, November 15, 2011

Court Allows Civil Rights Suit to Proceed Against Police Officer Who Calibrated Intoxilyzer Machine

In Molina-Aviles v. District of Columbia (D.D.C., November 14, 2011) 2011 WL 5517044, a federal judge in Washington, D.C. denied a motion to dismiss brought by a police officer accused of failing to properly calibrate an Intoxilyzer 5000EN machine.  The plaintiffs, several DUI defendants, claim the machine generated readings approximately 30% higher than a person's actual blood alcohol level and sued the officer in his personal capacity.  The court let the suit proceed against the officer personally because the plaintiffs alleged the officer knew his calibration methods were faulty, but continued to use them.  

Monday, November 14, 2011

Court of Appeal Strikes Down POBR Waiver, Awards $362,000 in Backpay

In Jaramillo v. County of Orange (November 8, 2011) 2011 WL 5338998, the Fourth District Court of Appeal awarded an assistant Sheriff  backpay because the County denied him a pre-termination administrative hearing.  The Court also voided his purported waiver of POBR rights.

Former Orange County Sheriff Mike Corona appointed Jaramillo as Assistant Sheriff after he had supported him during an election.  However, Jaramillo and the Sheriff’s relationship began to deteriorate when the Sheriff requested he participate in  illegal activities. Jaramillo became tired of covering for the Sheriff and reported the Sheriff’s illegal activities. The Sheriff then fired the him without providing him with a pre-termination hearing. After he was terminated, he was charged with misappropriation of public resources and perjury before a grand jury to which he plead no contest as part of a settlement agreement.

The County claimed Jaramillo waived his POBR rights when he signed two documents upon being appointed as Assistant Sheriff. Both documents contained provisions stating he was an “at-will” employee and he “could be released from his position at any time without notice.” Neither of the documents he signed made any reference to POBR. The Court determined the waivers were blanket waivers and undermined the purposes of POBR. The Court distinguished County of Riverside v. Superior Court, noting that case permitted only specified and narrow waivers of POBR rights.

The Court also found denying Jaramillo's right to a pre-termination hearing violated POBR, 14th Amendment due process, and Labor Code Section 1102.5 (on the basis the Assistant Sheriff had been fired for whistleblowing on the Sheriff’s illegal activities.) The Court awarded backpay from the date of Jaramillo's termination to the date he plead no contest to two state law felonies as well as injunctive relief in the form of amending the waivers for future management employees.

Friday, November 11, 2011

Legal Issues on the Horizon for AB 646

AB 646 provides factfinding for all public employees covered by the Meyers-Milias Brown Act, unless the parties have binding interest arbitration. On November 8, 2011, the Public Employment Relations Board (PERB) held a meeting in Oakland on the implementation of AB 646. The meeting previewed two issues public safety unions will likely face as the law goes into effect:

1) Can employers dodge fact-finding by refusing to go to mediation?

AB 646 provides for factfinding after mediation. However, many local rules make mediation voluntary, raising a concern some employers may refuse to go to mediation to avoid fact-finding and then move unilaterally to impose terms and conditions as soon as impasse is reached in negotiations. Government Code section 3505.7 states, “After any applicable mediation and factfinding procedures have been exhausted, but no earlier than 10 days after the factfinders’ written findings of fact and recommended terms of settlement have been submitted to the parties pursuant to Section 3505.5 a public agency . . . may, after holding a public hearing regarding impasse, implement its last, best, and final offer. . .” This language mandates factfinding, a review of a factfinders’ report and a public hearing prior to an employer imposing terms and conditions of employment. Thus, if an employer refuses to engage in factfinding, it cannot comply with the terms of the statute and should be barred from imposing terms.

2) Does AB 646 affect PERB jurisdiction over Penal Code section 830.1 peace officers?

Government Code section 3511 exempts Penal Code section 830.1 peace officers from PERB’s exclusive jurisdiction, allowing them to go to superior court instead. Since AB 646 was adopted, some have argued it gives PERB more authority over peace officers because it requires PERB to “select a chairperson of the factfinding panel.” However, the more sensible view is that AB 646 does no more than it says: PERB appoints the chair of factfinding panels, but if an unfair labor practice arises during the factfinding process, Penal Code section 830.1 peace officers’ labor associations can continue to seek remedies in superior court.

The next step in implementing AB 646 is for PERB to adopt regulations interpreting the statute. PERB is accepting comments and suggests until November 18, 2011 as it prepares to roll out regulations prior to the law's effective date of January 1, 2012.

Wednesday, November 9, 2011

Labor-Backed Pension Reform Wins, Adachi Initiative Fails in San Francisco

On Tuesday, San Franciscans considered two voter initiatives about public employees' pensions: Measure C, backed by local labor unions, and Measure D, the so-called Adachi Initiative.  Measure C passed with 68% of the vote and Measure D failed, attracting only 33%.

Measure C requires employees to pay a small portion of their salaries to offset healthcare costs and requires most employees pay 7.5% of their salaries to the pension system until the system's investments recover from the recession.  Measure C was endorsed by labor, including the San Francisco Police Officers Association and San Francisco Fire Fighters, IAFF Local 798.

San Francisco's Public Defender, Jeff Adachi, spearheaded Measure D, which would have taken even more away from San Francisco's public employees and targeted public safety professionals in particular.  Measure D would have required most employees pay at least 7.5% and police and fire 10% of their salaries even after the pension system recovers.  It would also have reduced pension benefits.  Adachi's previous attempt to slash pension failed in 2010.

Ohioans Reject Anti-Union Law In Landslide Election

In their November 8, 2011 general election, voters in Ohio voted overwhelming to overturn a state law restricting public-sector employees' collective bargaining rights.  By a vote of 63% to 37%, voters rejected Ohio Senate Bill 5, which severely restricted collective bargaining rights in that state.  The 250-page bill increased the number of police and fire department employees prohibited from joining unions, prohibited unions from ensuring members pay their fair share for representation, and allowed employers to pick and choose what they wanted to bargain over, and, in some cases, whether they wanted to bargain at all.  Under Ohio law, the election means the S.B. 5 will not go into effect and current labor laws will remain in place.

Tuesday, November 1, 2011

Union Ordered to Pay Attorney's Fees to Expelled Members

In CDF Firefighters v. Maldonado (October 26, 2011, F061183) 2011 WL 5079589, the Court of Appeal held CDFF had to pay attorneys fees after losing a breach of contract case against former members, even though it voluntarily dismissed a related claim. The case turned on the interpretation of Civil Code section 1717. The section entitles some prevailing parties in breach of contract cases to attorney’s fees. However, there is an exception when “an action has been voluntarily dismissed.”

CDF Firefighters sued two former members for breach of contract after they failed to pay fines levied against them by the union. CDFF fined two members $22,000 to cover expenses for a trusteeship and $743 to reimburse another member for expenses. The two members were ultimately expelled from the union. The former members challenged their expulsion and sought to overturn the $22,000 fine in court. The trial court found the $22,000 fine improper. CDFF then dismissed the claim for $743 and the expelled members moved to recover the attorney’s fees they incurred.

CDFF argued that since it voluntarily dismissed the claim for $743, the expelled members were not “prevailing parties” and could not recover attorneys fees under Civil Code section 1717. They emphasized that their claim for the $22,000 and $743 were brought as one cause of action and argued that by dismissing the cause of action, they triggered the exception to Civil Code section 1717. The court, however, determined the claims for $22,000 and $743 arose from “two separate and distinct obligations,” regardless of how they were plead. As a result, the court concluded, voluntarily dismissing with regard to the $743 fine did not trigger the exception with regard to the $22,000 fine and ordered CDFF to pay attorneys fees.

Monday, October 31, 2011

Court of Appeal Denies CalPERS Credit for Lump Sum Back Pay

In Molina v. Board of Administration (2011) 2011 WL 4491809, the Second District Court of Appeal rejected an employee's argument that back pay should be counted toward service credit under the Public Employee's Retirement Law (PERL).  After Molina was terminated from his job with the City of Oxnard, he filed an action for wrongful termination and subsequently settled for a lump sum.  Following the settlement, Molina requested CalPERS increase his pension entitlement, characterizing the settlement amount as “back pay.”  However, CalPERS refused to recognize the settlement amount as earnable compensation and denied his request.

The Court held the settlement amount could not count towards the employee’s “compensation earnable” because it did not meet PERL’s requirements to be “payrate” or “special compensation.”

Payrate must “either: (1) [be] paid to similarly situated employees; or (2) [be] paid in accordance with a ‘publicly available pay schedule for services rendered on a full time basis during normal working hours.’ (Gov. Code, § 20636, subd. (b)(1).)”

To qualify as special compensation, one must show the pay “(1) was available to similarly situated employees under a labor policy or federal requirement; or (2) was determined by the CalPERS Board to have been available to other, similarly situated employees as required by PERL. (Gov.Code, § 20636, subd. (c)(2); 2 Calif. Code of Regs., § 571(b)-(d).”

The Court noted CalPERS had advised Molina and the city "that a portion of the settlement payment could potentially be eligible for inclusion in Molina's pension, but only if Molina were reinstated for  a full year in a valid position under a legitimate salary based on a salary schedule."   That never happened.  As a result, the Court rejected Molina’s appeal, leaving his existing pension calculation unaltered.

Thursday, October 27, 2011

Governor Releases "Twelve Point Pension Reform Plan"

On October 27, 2011, Governor Edmund G. Brown Jr. released his 12 proposed major reforms for state and local pension systems. The governor stated the proposals “would end system-wide abuses and reduce taxpayer costs by billions of dollars over the long term” and cut in half the cost to tax payers of state employee pensions.

The “Twelve Point Pension Reform Plan” and its explanation are set forth as follows:

1. Equal Sharing of Pension Costs: All Employees and Employers: Will require that all new and current employees transition to a contribution level of at least 50 percent of the annual cost of their pension benefits.

2. “Hybrid” Risk-Sharing Pension Plan: New Employees: The “hybrid” plan will include a reduced defined benefit component and a defined contribution component. The hybrid plan will be combined with Social Security to provide an annual retirement benefit of about 75 percent of an employee’s salary. The 75 percent target is based on 30 years for safety employees and 35 years for non-safety.

3. Increase Retirement Ages: New Employees: For most new employees, retirement ages will be set at the Social Security retirement age, now 67. The retirement age for new safety employees will be less than 67, but commensurate with the ability of those employees to perform their jobs.

4. Require Three-Year Final Compensation to Stop Spiking: New Employees: Eliminates one-year rule to discourage efforts in the last year of employment to increase the compensation used to determine pension benefits.

5. Calculate Benefits Based on Regular, Recurring Pay to Stop Spiking: New Employees: Will require that compensation be defined as the normal rate of base pay, excluding special bonuses, unplanned overtime, payouts for unused vacation or sick leave, and other pay perks.

6. Limit Post-Retirement Employment: All Employees: Will limit all employees who retire from public service to working 960 hours or 120 days per year for a public employer. It also will prohibit all retired employees who serve on public boards and commissions from earning any retirement benefits for that service.

7. Felons Forfeit Pension Benefits: All Employees: Will require that public officials and employees forfeit pension and related benefits if convicted of a felony in carrying out official duties, in seeking an elected office or appointment, or in connection with obtaining salary or pension benefits.

8. Prohibit Retroactive Pension Increases: All Employees: Will eliminate unfunded liability from increased pension benefits.

9. Prohibit Pension Holidays: All Employees and Employers: Will prohibit all employers from suspending employer and/or employee contributions necessary to fund annual pension costs to avoid repeat of past where many public employers stopped making annual pension contributions during wall street boom years.

10. Prohibit Purchases of Service Credit: All Employees: Will avoid the investment risk associated with allowing purchase of service credit for time not actually worked.

11. Increase Pension Board Independence and Expertise: Will add two “independent” persons with financial expertise to the CalPERS Board and require that persons and their family are not eligible for CalPERS pension. Will also replace State Personnel Board representative on the CalPERS board with the Director of the California Department of Finance. Intended to achieve greater independence and greater sophistication.

12. Reduce Retiree Health Care Costs: State Employees: New state employees will be required to work for 15 years to become eligible any retiree health care and required to work for 25 years to become eligible for the maximum state contribution. Will encourage local governments to make similar changes.

These proposals will have to be debated and passed by the California Legislature before Governor Brown can sign them into law.

Tuesday, October 25, 2011

ATF Issues Open Letter on Firearms and Medicinal Marijuana

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives issued an open letter to "All Federal Firearms Licensees" outlining the relationship between federal firearms regulations and state marijuana laws.  The letter explains federal law codified at 18 U.S.C. § 922(g)(3) prohibits unlawful users of controlled substances from possessing firearms or ammunition.  Federal law also makes it unlawful to sell firearms or ammunition to someone about whom there is reasonable cause to believe uses or possesses controlled substances, such as marijuana.  Therefore, the letter concludes, it is unlawful under federal law for medicinal marijuana card holders to buy or possess firearms or ammunition, regardless of a particular state's laws.

Wednesday, October 19, 2011

Court Reaffirms Peace Officers' Constitutionally-Protected Right to Privacy While Partially Undressed

Following the Ninth Circuit, the Court of Appeals for the Third Circuit found a female deputy sheriff had a reasonable expectation of privacy while partially undressed and undergoing a decontamination process.  Doe, a deputy sheriff in Luzerne County, Pennsylvania was surreptitiously filmed by a male officer while undergoing decontamination. The male officer uploaded the video onto his work computer and called several officers into his office to view the footage.   He then put in on a county-wide server.  Doe filed a 1983 action against the county and the officer, alleging violations of her right to privacy under the Fourteenth Amendment and her right to be free from unlawful searches and seizures under the Fourth Amendment.

The trial court granted the county's motion for summary judgment. The Third Circuit reversed on the Fourteenth Amendment claim and affirmed on the search and seizure claim.  After looking to other circuits, the court concluded a deputy sheriff has a constitutionally-protected privacy interest in his/her partially clothed body. The court noted:

Although the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other circuits—including the Second, Sixth and Ninth Circuits—have held that such a right exists. See, e.g., Poe v. Leonard, 282 F.3d 123, 136–39 (2d Cir.2002) (finding that plaintiff, a female civilian who was participating in a police training video, alleged sufficient facts to raise a triable issue of whether her constitutional right to privacy was violated where the male police officer surreptitiously filmed her in the dressing room while topless and without a bra); York v. Story, 324 F.2d 450, 454–56 (9th Cir.1963) (finding that the plaintiff properly stated a claim for a violation of her constitutional right to privacy where she alleged that, while reporting a sexual assault, a male police officer deceived her into permitting him to photograph her genitals and exposed breasts under the pretext of an investigation), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 497–98 (6th Cir.2008) (finding a privacy violation where a middle school's surveillance cameras recorded the plaintiff students in their undergarments while in the school locker room)
(Doe v. Luzerne County (3d Cir., Oct. 12, 2011, 10-3921) 2011 WL 4823387.)

The court concluded the male deputy’s filming did not implicate the Fourth Amendment because it was conducted for personal reasons.

Monday, October 17, 2011

Court of Appeal Permits Waiver of POBR Rights In Limited Circumstances

In Lanigan v. City of Los Angeles (Cal. Ct. App., Oct. 4, 2011) 2011 WL 4552533, the Court of Appeal for the Second District overturned the trial court, finding POBR protections can be waived in a minority of discipline cases. The case concerned a Los Angeles police officer facing several serious discipline charges resulting from his treatment of an officer from another department. The Department proposed termination and the officer entered into a detailed settlement agreement under which he was reinstated.  He also agreed to specific future discipline in the event of additional disciplinary charges being filed against him for harassing or failing to cooperate with officers of an outside agency, and agreed to waive several of his rights under POBR.

Within a year, the officer again faced discipline charges for providing false information and failing to cooperate with an LASD officer.  In response, the Department processed his resignation pursuant to the settlement agreement.  He petitioned for peremptory writ of mandate to obtain judicial review of the LAPD’s decision. The lower court issued a writ ordering the city to set aside its acceptance of the officer's resignation and reinstate him to his position.

The Court of Appeal overruled the trial court, but acknowledged the provisions of POBR are not subject to a blanket waiver because POBR was established for a public purpose. Instead, the Court looked to the California Supreme Court's ruling in County of Riverside v. Superior Court (2002) 27 Cal.4th 793 and concluded a waiver of POBR rights could be permitted in certain unusual circumstances. In this case, the Court noted the officer did not waive all of his POBR rights and his waiver applied to discipline for a specific type of alleged misconduct. The Court also emphasized the original settlement was in lieu of almost certain termination.

This case primarily concerned statutory rights.  Other pre-termination rights have a federal constitutional dimension that presents additional barriers to waiver.  In Walls v. Central Contra Costa Transit Authority (9th Cir. 2011) 653 F.3d 963, the court found a public employee had not waiver his Skelly rights.  The court noted "federal courts 'indulge every reasonable presumption against waiver of fundamental constitutional rights' and 'do not presume acquiescence in the loss of fundamental rights.'" The court therefore concluded "a waiver [of the right to a pre-termination hearing] should not be implied and should not be lightly found."

Monday, October 10, 2011

Neutral Fact-finding Now Required Before Public Agencies Can Impose on Employees

Governor Brown strengthened collective bargaining rights for local public employees by signing A.B. 646 which establishes new minimum impasse procedures for contract negotiation. Prior to this enactment, public employers could declare impasse and impose terms and conditions on employees with few safeguards. In the current economic climate, management negotiators and representatives often hurry to reach impasse and impose cuts on employees, despite their statutory obligation to meet and confer in good faith. Meeting and conferring in good faith does not require agreement, but does require that the parties endeavor to reach agreement and share information.

A.B. 646 will facilitate good faith negotiations by providing for fact-finding, essentially a form of non-binding interest arbitration. The new process will reduce the incentive for agencies to go through the motions of negotiations with a pre-determined intent to declare impasse and impose terms by requiring both parties to justify their positions, share information, and providing for findings and recommendations. Fact-finding is intended to move the parties toward agreement, but also provides a valuable tool to illuminate bad faith bargaining.

The bill provides that if a mediator is unable to resolve the negotiations impasse after 30 days, the employee representative may initiate fact-finding. Within 5 days of the request for fact-finding, each party must select a panel member and PERB selects a panel chairperson. Within 10 days after its appointment, the panel is to meet with the parties, make inquiries and investigations, hold hearings, and take any other necessary steps. It has the power to issue subpoenas to compel testimony and production of evidence. Public employers are required to provide the panel all records, papers, and information relevant to the investigation.

The fact-finding panel then issues findings and recommendations which consider:
1) the application of laws to the employer;
2) local rules and regulations;
3) stipulations of the parties;
4) the public and employers finances;
5) comparables (compensation and working conditions in comparable agencies);
6) the consumer price index;
7) current overall compensation; and
8) any other facts traditionally taken into consideration in fact findings.

The fact-finding panel must make written findings of fact and recommendations of settlement that are advisory only. The cost of the process is bourne equally between the parties. If the agency’s Charter does not require proceeding to interest arbitration, the employer may then impose its last, best, final offer. The employer may not impose a Memorandum of Understanding, and remains obligated to meet and confer with the employee representative each year on matters within the scope of representation, regardless of whether the imposed terms cover those matters.

Court of Appeal Upholds Furloughs for Correctional Officers

In Brown v. Superior Court of Alameda (1st DCA, Oct. 3, 2011, A127292) 2011 WL 4537946, the Court of Appeal overturned CCPOA's trial court victory, holding self-directed furloughs under two executive orders did not violate California Labor Codes prohibiting “kickbacks” by employers or minimum wage laws.

CCPOA attempted to nullify self-directed three-day/month furloughs. Under the orders, employees were permitted to take the furloughs whenever they preferred. If the employees did not use the three furlough days by the end of the month, the days were to be used at a future date, prior to the employee using any form of paid leave. The furlough days needed to be used prior to June 2012 or they would be eliminated. CCPOA claimed the State was essentially asking its members to work for free.

The Court found the Governor had a right to impose the furloughs as the agencies which members of CCPOA worked for were included in the 2008 and 2009 Budget Acts, which were approved by the Legislature, and were part of the extended furlough program. The Court also found the manner in which the furloughs were implemented did not violate applicable California Labor Codes as employers were not taking “kickbacks” from employees or secretly paying them less. The court also found the furlough program did not violate minimum wage laws. The Court also overturned the trial court’s order for back pay for union members.

Wednesday, October 5, 2011

City Charter Bars Discipline For Accused Firefighters

Recently, Los Angeles City firefighters have been under investigation for allegedly permitting filmmakers to use an engine as the backdrop for a short film.  However, the alleged violations occurred more than two years ago.  In Los Angeles, that means the firefighters cannot be subjected to discipline because of important protections in the City Charter.  The Los Angeles City Charter provides that "charges must be filed within one year of the department’s discovery of the act committed or omitted by a member and in no event later than two years from the date of the act or omission."  (Los Angeles City Charter, art. X, section 1060(a) (emphasis added).)

The Firefighters Procedural Bill of Rights Act, like POBR, has a one-year limitation period with several exceptions.  Most prominently, the one-year period does not begin until a Department discovers the alleged misconduct.  The two-year limit in Los Angeles, however, does not contain these exceptions.  As a result, firefighters there cannot suffer discipline for alleged misconduct that was not serious enough to raise attention at the time and they do not have to reconstruct long-forgotten details and evidence in order to defend themselves.

Friday, September 30, 2011

Court of Appeal: Police Chief Qualified for Disability Retirement Despite Termination Because of Equitable Exception

In  Zimmon v. City of San Bernardino (Cal. Ct. App., Sept. 16, 2011, E050314) 2011 WL 4337123, the Court granted former San Bernardino Police Chief Garrett Zimmon disability retirement by applying an equitable exception stating that an employee terminated prior to the approval of his disability retirement is still eligible for benefits if the employee's application would have been granted but for the termination.

In the summer of 2002, Zimmon was diagnosed with a heart condition.  Later, the city’s mayor openly considered terminating Zimmon so her successor could select a new chief.  Zimmon then filed an application for disability retirement and was terminated the following day.  A hearing officer ruled Zimmon had suffered a heart-related injury.  However, the officer denied Zimmon’s petition for disability retirement.  After an internal appeal, the city ruled Zimmon had “proved his disability and incapacity for performance” but he was not eligible for benefits because his termination took place before his right to a disability retirement matured.  The superior court affirmed this decision, and the case was appealed to the Fourth District Court of Appeal.

The Appellate Court reversed, holding Zimmon’s application for disability retirement would have been approved had he not been terminated. The Court relied on an equitable exception which states “an employee who has been terminated, prior to the pension board approving his disability retirement application, may still be ‘eligible to retire for disability’ if there is evidence that the employee's application would have been granted.” (Id.) The Court further found Zimmon had already “proved his disability and incapacity for performance of duty ‘on the basis of competent medical opinion.” (Id.)

The Court in Zimmon relied heavily on two Court of Appeal cases brought by firefighters denied disability retirement. These cases helped define what it means to be eligible to retire for disability when an employee is terminated. In Haywood v American River Fire Protection Dist., a firefighter filed an application for disability retirement benefits based on stress caused by the discipline process.  (Haywood v American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292.)  The Court of Appeal rejected his claims finding eligibility to retire for disability “meant that the person was an active employee, who would be able to return to his job if he overcame his disability.” (Haywood, supra, 67 Cal.App.4th at p. 1307.)

In Smith v. City of Napa, a firefighter with back injuries was dismissed for failing certification tests and filed for disability retirement the same day. (Smith v. City of Napa (2004) 120 Cal.App.4th 194.) The Court of Appeal rejected his claims but noted equitable principles could provide grounds to find that an employee’s disability rights mature and survive a dismissal for cause if the medical evidence supporting those rights is definitive. (Smith, supra, 120 Cal.App.4th at pp. 206–207.)

These two cases laid the groundwork for a case such as Zimmon, in which the employee would clearly have received disability retirement but for his termination from employment.

Wednesday, September 28, 2011

EEOC: Private Security Company Discriminated Against Older Male Security Guards

On September 27, 2011, the federal Equal Employment Opportunity Commission filed a complaint against Trinity Protection Services, Inc., a private security company.  The complaint alleges Trinity discriminated against older, male security guards in favor of younger, female guards.  The lawsuit, EEOC v. Trinity Protection Services, Inc., Case No. 2:11-cv-02535-KJM-DAD, was filed in the Eastern District of California.

The complaint alleges that in 2008 seven security guards at the company's Sacramento location did not reach a qualifying score on an arms requalifying test and were terminated by Trinity.  The men, ages 66 to 73, were told they had to wait at least six months to retest and reapply.  The women, ages 28, 29 and 50, however, were invited to retest earlier and reinstated in their positions.  According to the EEOC, this practice constituted unlawful age and sex discrimination.  In a press release, EEOC San Francisco District Director Michael Baldonado said, “Taking the initiative to diversify your work force in terms of gender cannot be done at the expense of the rights of other employees. Trinity’s invitation to requalify should have been extended to all the workers affected, not just the younger women.”  The lawsuit seeks an injunction, damages and a federal court order Trinity implement policies, practices and programs to eradicate discrimination at the company.

Monday, September 19, 2011

Ninth Circuit: Employers Must Prove Workplace Disruption Claims in Employee Speech Cases

In Nichols v. Dancer (9th Cir., Sept. 15, 2011, 10-15359) 2011 WL 4090676, the Ninth Circuit held that under the Pickering balancing test, employers must prove an employee's speech causes workplace disruption to justify subjecting an employee to an adverse employment action.  Following the Fifth Circuit, the Court rejected the employer's claim that it is sufficient to merely assert a potential disruption.

Kathleen Nichols worked in the General Counsel's office of the Washoe County School District.  She went to a school board meeting about whether her boss would be fired and sat next to him during the meeting. When she returned to work, a manager told her there were questions about her loyalty to the District. The manager told Nichols that she could remain in Human Resources, where her salary would be frozen, or take early retirement. She opted for the latter and sued for a violation of her First Amendment rights.

The case turns on whether Ms. Nichols' conduct caused sufficient interruption to trigger the employer's right to preserve workplace efficiency.  Balancing Nichols' rights against workplace efficiency is part of the Pickering balancing test, the analytic framework used by courts to evaluate public employee free speech claims.   In this case, the District asserted Nichols' association with her former boss met its burden under the test.  The Court rejected that claim.

The Court explained "engaging in Pickering balancing is not like performing rational basis review, where we uphold government action as long as there is some imaginable legitimate basis for it."  (Id. quoting Kinney v. Weaver (5th Cir. 2004) 367 F.3d 337, 363.) The Court went on to explain, "An employer may not interfere with an employee's First Amendment rights unless there is evidence that the employee's actions have actually disrupted the workplace or are reasonably likely to do so in the future. Simply saying that there has been or will be disruption, without supporting evidence, is not enough.  In the face of Pickering, the “because I said so” approach is insufficient to establish a reasonable prediction of disruption, let alone actual disruption." (Id.)

Monday, September 12, 2011

NLRB: Facebook Post Was Protected Activity

In Hispanics United of Buffalo, Inc. (September 2, 2011) NLRB Case No. 3-CA-27872, an administrative law judge of the National Labor Relations Board ruled a New York nonprofit violated federal law by firing five employees who posted comments on Facebook about working conditions, including workload and staffing.

An employee of the nonprofit brought the case after he was fired for comments he posted on Facebook. The employee claimed some employees did not do enough to help their clients, drawing responses from other employees about job performance, working conditions and staffing levels. Some of the comments supported the initial post and some disagreed. The nonprofit later fired five employees involved, claiming their posts harassed another employee.

The judge determined firing employees for these comments violated the National Labor Relations Act. The relevant part of the NLRA gives employees “…form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The judge noted “[e]mployees have a protected right to discuss matters affecting their employment amongst themselves.  Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected…” The judge went on to hold that protected applies equally to Facebook posts as it would to a workplace conversation around the water cooler.

The judge found there was no evidence the employees harassed anyone with their posts and noted “[the employer] was looking for an excuse to reduce its workforce and seized upon the Facebook posts as an excuse for doing so.”

Ultimately, the judge ordered the nonprofit to reinstate the employees and pay them back pay plus compound interest.

Friday, September 9, 2011

Assembly Commits to Study Pension Reform in Future Legislative Sessions

The California State Assembly passed Senate Bill 827 to declare its intent to study pension reform in future sessions. The bill provides in its entirety:

"It is the intent of the Legislature to convene a conference committee to craft responsible, comprehensive legislation to reform state and local pension systems in a manner that reflects both the legitimate needs of public employees and the fiscal circumstances of state and local governments."

The current legislative session ends at midnight tonight.

Tuesday, September 6, 2011

Court of Appeal Limits Exposure of Retirees' Private Information

In Sonoma County Employees’ Retirement Association v. Superior Court (August 26, 2011, A130659) 2011 WL 3795212, the Court of Appeal found Sonoma County’s retirement system did not have to disclose the ages of retirees. The case is the latest in a series of cases where newspapers have used the Public Records Act to identity retirees by name and pension amount. In reaching its decision, the Court focused on language exempting “individual records of members” from disclosure. The retirement system argued this language protected retirees' names, but the Court found the public’s interest in knowing the names and pension amounts of retirees outweighed their privacy interests. However, the court drew the line at disclosure of the retirees' ages, finding retirees' dates of birth and ages at retirement are protected from disclosure under the statute.

Friday, August 19, 2011

Legislative Analyst's Office, CDCR Address Realignment

In March and again in June, the Legislature passed a series of bills to shift responsibility for some services from the state to local and municipal governments. This process of realignment has far-reaching implications in local law enforcement, probation and corrections.   As part of this process, the state will begin diverting criminal offenders and parole violators to county supervision starting October 1st.

With the implementation date approaching, the Legislative Analyst's Office released a report today on the construction and mechanics of realignment as well its recommendations to improve the process.  Likewise, the California Department of Corrections and Rehabilitation launched a website yesterday to outline how realignment will impact state and local corrections, juvenile justice administration and supervision of parolees.

Thursday, August 18, 2011

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

In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (Aug. 12, 2011, 08-56283) 2011 WL 3524129, the Ninth Circuit Court of Appeals found the County of Los Angeles violated peace officers’ constitutional rights by denying them a meaningful appeal of suspensions without pay. The Court found the mere fact an officer is charged with a felony is not enough to justify unpaid suspensions. Instead, a peace officer should be permitted a post-suspension appeal to challenge whether the charges are supported by valid allegations and to determine if the particular felony allegations against a suspended deputy justify suspension.

The case arose after four deputy sheriffs were charged with felonies and suspended without pay. The charges against some of them were later dropped and the others were exonerated by juries. The deputies challenged their suspensions and sought back pay, but the County refused, arguing unpaid suspensions were proper because felony charges, whether supported by valid allegations or not, were pending at the time of the suspensions. The deputies appealed, arguing they were entitled to challenge more than just the mere fact they had been charged with felonies.

Normally, peace officers are entitled to challenge discipline before it is implemented. However, courts look at felony charges somewhat differently than other types of alleged misconduct because whenever there are felony charges an independent third party has determined there is probable cause to believe the employee committed a serious crime. As a result, some courts have held employees who occupy positions of public trust and high visibility, such as peace officers, can be temporarily suspended without pre-suspension due process if felony charges are filed against them.

However, even though pre-suspension hearings may not be required under some circumstances, meaningful post-suspension hearings are required. The dispute in this case was about what the deputies had a right to challenge in their post-suspension appeal.

The County argued it did not have to let the officers challenge the basis for the felony charges because merely being charged with a felony meant the deputies could not do their jobs. The County relied on a rule allowing it to suspend employees based on a “condition which impairs an employee's qualifications for his or her position.” The Court, however, rejected this claim noting “nowhere does the rule state that a felony charge is necessarily such a ‘condition’—indeed, the rule does not mention felonies or felony charges at all.”

The Court therefore concluded the County “rendered the post-suspension hearings redundant and meaningless [and this kind of] “meaningless hearing is no hearing at all, and does not satisfy the requirements of procedural due process.”

Friday, August 12, 2011

9th Circuit: Last Chance Agreement Did Not Waive Right to Skelly Hearing

In Walls v. Central Contra Costa Transit Authority (9th Cir., Aug. 3, 2011, 10-15967) 2011 WL 3319442, the Ninth Circuit ruled a public employee’s Last Chance Agreement did not waive his right to a pre-termination (Skelly) hearing. Some employers use Last Chance Agreements to discipline employees and give them a “last chance.” Such agreements usually contain a provision which states if the employee violates any condition of employment, such as coming in to work late or missing a day without calling in, the employee can be terminated.

In this case, the Last Chance Agreement read in part, “non-compliance with the stipulations [of the Last Chance Agreement] will result in your immediate and final termination.” After agreeing to the Last Chance Agreement, the employee allegedly had an unexcused absence from work. The employer then moved to terminate him and did not give him a pre-termination hearing, claiming the Last Chance Agreement rendered the employee “at will,” meaning he could be terminated without just cause and the normal procedural protections that go along with it.

The Court rejected the employer’s claim. The Court recognized public employees have a property interest in their continued employment and must be provided with notice of the charges against them, an explanation of the employer's evidence, and an opportunity to present their side of the story. In reaching its conclusion, the Court examined the Last Chance Agreement and concluded “[it] specifies and modifies what constitutes “just cause” for [] termination, [but] it does not otherwise alter the employment terms of [the employee’s] collective bargaining agreement [and] accordingly, there is no basis on which to conclude that he had become an at-will employee.”

Friday, August 5, 2011

PORAC-endorsed Candidate Wins CalPERS Special Election

According to a press release from CalPERS, Michael Bilbrey is the apparent winner of a special runoff election to fill a vacancy on the 13-member California Public Employees’ Retirement System (CalPERS) Board of Administration.  Mr. Bilbrey was endorsed by the Peace Officers Research Association of California, California Professional Firefighters, California Association of Highway Patrolmen and several other labor organizations.

Tuesday, August 2, 2011

Court of Appeal Upholds Police Officer's Termination Despite Settlement at Skelly Hearing

In Ferguson v. City of Cathedral City (2011, E051039) 2011 WL 2582134, the Fourth District Court of Appeal upheld the termination of a police officer even after he agreed to settle his discipline case for a 160-hour suspension.  The Court’s decision relied on a letter sent by the officer’s attorney declaring the settlement “null and void.”

A Southern California police officer was arrested and charged with soliciting a prostitute. At the officer's Skelly hearing the parties reached a separation agreement under which the officer would serve a 160-hour suspension and waive his right to appeal in exchange for the City rescinding his discharge.

The officer later heard the Department contacted the District Attorney’s office about his criminal case.  As a result, his lawyer sent a letter to the Department, which read in pertinent part, "[d]ue to the departments [sic] efforts to undermine [the officer’s] agreement he now considers the agreement ... null and void.” (emphasis added).  The City interpreted the letter as an unequivocal repudiation of the separation agreement, triggering anticipatory breach.  It then elected to to treat the agreement as void, proceeding with the discipline case and terminating the officer.  The Court upheld the termination, noting the agreement was void once the City’s chose to treat the repudiation as a breach.

While the decision upholds a severe penalty for the officer, the case has a limited impact on other officers as it does not appear the officer effectively withdrew his repudiation of the settlement agreement despite the opportunity to do so.  According the fact recitation in the appellate decision, the City appears to have waited more than two weeks to elect to treat the repudiation as a breach.  Likewise, the decision alludes to attempts by appellate counsel to characterize a letter sent two years after the "null and void" letter as a withdrawal of the repudiation.

While the Court rejected the officer’s “11th-hour argument” due to the lack of a record below, had the record been developed or had the officer withdrawn the repudiation before the City responded, the legal issue would be much different.  It is well established "that repudiation of a contract may be nullified by withdrawal of the repudiation before the injured party has changed his position in reliance thereon."  (Pichignau v. City of Paris (1968) 264 Cal.App.2d 138, 141.)  As a result, had the officer withdrawn the repudiation early enough in the process, perhaps even after learning of City's plan to terminate him, the outcome of the case would likely have turned on whether the City had relied on the repudiation to its detriment, a much more fact-intensive and individualized inquiry.

Friday, July 29, 2011

Supreme Court Rejects Police Chief's Retaliation Claims

The U. S. Supreme Court reversed the Third Circuit Court of Appeals in holding that retaliation claims brought under the petition clause of the First Amendment must relate to a matter of public concern to liability. Borough of Duryea, Pa. v. Guarnieri (June 20, 2011) 2011 WL 2437008.

Chief Guarnieri successfully grieved his termination through the applicable collective bargaining agreement.  After being awarded reinstatement, the governing body issued eleven directives controlling the manner in which he performed his duties.  The Chief filed the second grievance challenging the directives and obtained another favorable arbitration award instructing the agency to withdraw or modify certain directives on grounds, including that they interfered with the delegation of authority, they violated the collective bargaining agreement, and were vague.

Chief Guarnieri then proceeded to bring a Federal action against the governing body and certain of its members under section 1983 based upon his allegation that the directives constituted retaliation for the filing of his initial grievance.  Perhaps, in light of the recent Supreme Court ruling limiting the First Amendment speech protections of public employees (Garcetti v. Ceballos), Guarnieri brought his claims under the Petition Clause, rather than the speech clause, of the First Amendment.  The Petition Clause protects the right “to petition the government for a redress of grievances.”  He also added claims for retaliation based upon denial of overtime payments.  Guarnieri prevailed in the District Court, as the jury awarded approximately $142,000.00 in damages and fees.  The defendants unsuccessfully appealed to the Third Circuit, arguing that Guarnieri’s grievances did not involve matters of public concern and, therefore, should be afforded no First Amendment protection. In upholding the jury verdict, the Third Circuit stated, “A public employee who has petitioned the government for a formal mechanism, such as the filing of a lawsuit or grievance, is protected under the petition clause from retaliation for that activity, even if the petition concerns a matter of “solely private concern.”  The defendant appealed and Supreme Court granted review.

The Supreme Court, in an opinion authored by Justice Anthony Kennedy, held that a public employee must show that his speech related to a matter of public concern in order for the protections of the petition clause to apply.  In so doing, the Court, essentially applied the standards set forth in Garcetti v. Ceballos to Petition Clause claims.  Garcetti had held that, in order to prevail on a First Amendment retaliation claim, a public employee must show that the speech involved matter of public concern, in that the speech was not part of the employee’s official duties. Guarnieri had unsuccessfully argued that the public concern requirement did not apply to the petition clause-based claims.  Justice Kennedy explained the rationale for his decision by asserting that public employees must accept certain limitations on their freedom, and that the public concern requirement is intended to protect the government’s interest.  The Court noted that applying a different standard to petition clause claims would allow public employees to circumvent the protections the Court had afforded to governmental interests in Garcetti.  The Court’s opinion did elaborate on the definition of “public concern” in suggesting that it related matters such as communication to the public or advancing a political or social point of view beyond the employment context.  The Court held that “a complaint about a change in the employee’s own duties does not constitute a petition involving the a matter of public concern.”

The Supreme Court’s decision further limits the scope of constitutional protection afforded to public employees under the first amendment.  However, this case involved claims under the United States Constitution, not state or federal labor law.  In California, it remains unlawful under the Meyers-Milias-Brown Act for a local government agency to interfere with or retaliate against represented public employees for pursuing a grievance process or other concerted activity such as arbitration. Further, under Government Code section 3304(a) of the Public Safety Officers Procedural Bill of Rights Act, “no public safety officer shall be subject to punitive action, or denied the motion, or be threatened by any such treatment because of ... the exercise of any rights under any existing administrative grievance procedure.”

Thursday, July 28, 2011

California Supreme Court to Hear Challenge to City's Purported Fiscal Emergency

The California Supreme Court recently depublished City of Los Angeles v. Superior Court (Engineers and Architects Association) (2011) 193 Cal.App.4th 1159, and granted review.  The decision of our Supreme Court to grant review appears to reflect a greater willingness of the courts to provide judicial oversight of local bureaucrats attempting break contractual obligations by declaring fiscal emergencies, rather than negotiate concessions or seek bankruptcy protection.

Some prominent law firms representing public agencies have been advocating that the Los Angeles case supported their contention that agencies can suspend MOUs merely by declaring fiscal emergencies and that the resulting contract violations could not be arbitrated because declarations of emergency are not subject to review, and that more cities should declare emergencies to avoid contractual obligations.   These firms contend that review of cities' declarations of emergency and suspension of MOU terms is an improper delegation of cities' salary setting and budget making powers.  Under this rationale, cities' would not need Chapter 9 bankruptcy, because they could avoid court oversight of their true financial situation and any reorganization plan by suspending contractual obligations at their discretion.

This expansive reading of the Los Angeles case conflicts with Prof'l Engineers in Cal. Gov't v. Schwarzenegger (2010) 50 Cal.4th 989, 1043, where in our Supreme Court held the establishment of an emergency does not provide any substantive power to take an action not already authorized, but only avoids meet and confer obligations.   The Supreme Court will likely address the ability of local agencies to suspend their contractual obligations through misuse of emergency declarations in this case.

Wednesday, July 27, 2011

Brown Vetoes AB 455

Governor Jerry Brown vetoed AB 455 which would have given recognized employee organizations input in the composition of personnel commissions.  In his veto message, the governor noted that "[w]hile intended to create more balanced commissions and address concerns relating to individual commissions, this measure imposes a a top down, one-size-fits-all solution on all merit and personal commissions statewide." 

Wednesday, July 20, 2011

CalPERS: "We are back"

CalPERS posted a gain of 20.7% in its investment portfolio for the fiscal year ending June 30, 2011, marking its largest market gains since 1997.  CalPERS investments grew across the board: stock value is up 30.2%, private equity stakes increased 25.3% and real estate assets increased 10.2% in value.  CalPERS investments now stand at $237.5 billion, up from $200.5 billion last year and $165 billion in 2009.

The average annual growth rate of CalPERS' investments plays a critical role in the cost of participation in the plan and employer contribution rates.  CalPERS' critics regularly attack its target growth rate of 7.75% and make forecasts assuming a growth rate as low as 2-3%.  However, as a result of its higher-than-expected growth, CalPERS now stands at 8.38% growth averaged over 20 years despite the big hits to the fund in 2008 and 2009 and appears well on its way to being fully recovered from the effects of the recession.

Monday, July 18, 2011

CalPERS Takes a Stand on Vested Pension Rights

On Thursday, July 14, 2011, CalPERS released a position paper on the status of pension benefits earned by public servants under the system. The paper, Vested Rights of CalPERS Members: Protecting the pension promises made to public employees, interprets sections of the Public Employment Retirement Law (PERL) CalPERS enforces and related state and federal constitutional provisions. The position paper explains CalPERS pensions are vested rights under the federal and state Contract Clauses. It also explains CalPERS' fiduciary duty to members and cautions CalPERS may take legal action "[i]n the event CalPERS questions whether changes in the PERL or other applicable law may cause an unconstitutional impairment of its members’ vested rights..."

Wednesday, July 13, 2011

Little Known Group Seeks to Ban Collective Bargaining, Slash Pensions in California

A Santa Barbara-based organization calling itself the California Center for Public Policy recently announced it has submitted three proposed California constitutional amendments to the California Attorney General to begin the process for qualifying for the ballot. The first amendment would prohibit public sector collective bargaining in California, the second amendment would increase taxes on retired public servants receiving more than $100,000 in pension benefits and the third amendment would raise the CalPERS retirement age to 65 for most employees and 58 for public safety employees. It would not make any change to the retirement age in systems organized under the County Employees Retirement Law of 1937 (CERL). The little known group is not widely believed to have the resources to successfully qualify these initiatives for the ballot.

Tuesday, July 12, 2011

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

The US Department of Labor has released a free application for iPhones and iTouch that will assist employees in tracking their hours worked, meal periods and rest breaks, overtime and wages owed. The application is titled "DOL-Timesheet" and is available for free on the apple website, and is expected to be released soon for other phones. This application will provide workers a valuable tool to establish their wage and hour claims where the employer has failed to keep accurate records. Under the FLSA and California labor law, employees can establish wage claims by reasonable inference where accurate records are not available.

In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946) the court recognized that employees may establish their claims by reasonable estimates and averages. The court found, "Where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes ... the solution ... is not to penalize the employee ... on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records ... it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the [FLSA]." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).

This application will provide a much more accurate record of hours worked and strong evidence for courts to estimate the claims of other employees. Secretary of Labor Hilda L. Solis stated "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay." The Labor Department indicated the calculator will be updated to allow workers to keep track of their tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest. The application can be found at or on itunes.

Monday, July 11, 2011

AB 455: Bill Adds Provision Granting Employee Organizations Input on Appointees to Personnel and Merit Commissions

The Senate and Assembly both passed a bill introduced by Assemblymember Nora Campos which would add a provision to the Meyers-Milias-Brown Act affording recognized employee organizations input in the composition of personnel commissions. AB 455 provides that where personnel commissions or merit commissions are established to administer personnel rules or the merit system, an employee organization may nominate half the commissioners. The governing body of the agency shall appoint the commissioners nominated by the employee organization as well as the other half of the commissioners that the agency has selected. The commission members then select an additional member as a chairman. The bill also states when there are multiple bargaining units represented by different recognized employee organizations, the organization which represents the largest number of employees will be the organization who nominates the commission members.

This legislation is opposed by labor law firms representing public agencies because it is considered an impediment to their agenda of eliminating promotional rules requiring a testing process and hiring from a list, as well as eliminating seniority based layoffs and bumping rights. Some agencies and their advocates seek to eliminate civil service protections to allow local government bureaucrats to make hiring, promotional and layoff decisions at their whim. California’s civil service systems were created to eliminate patronage and corruption in public employment. This law would provide an equitable balance and transparency to the commissions that have broad discretion in determining hiring and promotional process, disciplinary procedures, and other personnel guidelines. This legislation will enhance public confidence in government by guaranteeing the impartiality and independence of the commissions and the rules they administer.

AB 455 was enrolled on July 6, 2011 and as of now is waiting to be signed by the Governor.

Thursday, June 23, 2011

California Supreme Court to Decide Union's Right to Contact Fair Share Payers

The California Supreme will decide a dispute between Los Angeles County and SEIU about the union's access to fair share payers' names, addresses, and telephone numbers.  In County of Los Angeles v. Los Angeles County Employee Relations Commission, the Court of Appeal decided "non-member public employees who have not disclosed their personal information to the Union are entitled to notice and an opportunity to object before disclosure." In its review, the Supreme Court will address two questions affecting all public employee unions in California:

1. Do the state constitutional privacy interests of non-union-member public employees outweigh the interests of the union representing them in obtaining their contact information?

2. Did the Court of Appeal err in directing the trial court to apply a specific notice procedure to protect such employees' privacy rights instead of permitting the parties to determine the proper procedure?

Tuesday, June 21, 2011

Court of Appeals Rules Side Letter Moots Appeal of Furlough Order

In San Bernardino Police Officers Association et al., v. City of San Bernardino, Case No. E049925 (June 15, 2011), the Court of Appeal held a side letter settling disputed furloughs meant a lawsuit about the issue was moot. The case started when the City of San Bernardino authorized its City Manager to impose furloughs on police officers.

The POA claimed the threatened furloughs violated the City Charter, its MOU, and the Meyers-Milias-Brown Act. However, a few days after the furloughs started, the City and the POA agreed to a side letter ending the furloughs, extending the MOU one year, and reducing officers’ total compensation by approximately 10 percent.

After learning of the side letter, the Superior Court refused to consider the POA's request it invalidate the resolution authorizing the furloughs and declare, in advance, that any future furloughs implemented pursuant to the resolution would be unlawful.  The Court of Appeal upheld the decision, characterizing it as "a request for an advisory opinion." The Court also decided the case was too fact-specific to decide as an issue of public importance.

Thursday, June 16, 2011

Wisconsin Supreme Court Upholds Anti-Union Law

On June 14th, the Wisconsin Supreme Court upheld the state’s anti-union law, referred to as the “Budget Repair Law.” On May 26, 2011, a Wisconsin Circuit Court had invalidated Wisconsin’s anti-union law, finding the Legislature passed it in violation of the state’s open meeting law. Today’s decision overturns the Circuit Court’s ruling.

The Supreme Court found the Circuit Court decision interfered with the powers of the Legislature, violating separation of powers.  Separation of powers is a legal concept each of the three branches of government have separate rights and authority. Each branch may only exercise those powers granted by the Constitution and may not exercise any rights or powers which are exclusively granted to another branch. The Court also found the Legislature complied with state constitutional requirements by posting the bill on three bulletin boards approximately one hour and fifty minutes before the vote took place.

Wisconsin’s “Budget Repair Law” is a direct attack on public-sector unions. The bill significantly restricts the scope of bargaining and requires union re-certification every year. The law also bans local governments from deducting dues and allows union members to refuse to pay their fair share for union representation. The battle over the law now shifts to the ballot box where six of the nineteen state senators who voted for the bill face will face recall elections on July 12th.

Tuesday, June 14, 2011

Court: POBR Guarantees Right to See Complaints, Not Just Summaries

 In Matthew Medina v. State of California, Kasey C. Clark, Chief Counsel for the California Statewide Law Enforcement Association (CSLEA), scored a major victory for peace officers statewide.  The Superior Court case establishes POBR gives officers access to actual complaints against them, not just summaries or abstracts.  Prior to the Court's decision, some law enforcement departments refused to provide officers with actual complaints, providing instead brisk summaries which sanitized complaints often littered with anti-officer rhetoric and personal biases.

In its ruling, the Court stated unambiguously "the right to read the adverse comment [in a personnel file] requires disclosure of the actual adverse comments [] not merely the general nature of the comments." The ruling affirms Sacramento Police Officers Association v. Venegas, the leading case in the Court of Appeal to address peace officers' right of access to their personnel files.  Importantly, the Medina decision joined Venegas in recognizing "some might view a shield of confidentiality as a license to make false allegations of police misconduct."

Tuesday, June 7, 2011

Wisconsin Court Strikes Down Anti-Union Law

In State of Wisconsin et al., v. Scott Fitzgerald, et al., Case No. 11CV1244, a Wisconsin Circuit Court Judge struck down Wisconsin’s anti-union law, deciding the state Legislature passed the law in violation of the state’s Open Meetings Law.

In Wisconsin, Republicans in the state senate passed the "Budget Repair Law" less than two hours after announcing the vote, preventing Democrats who left the state to prevent a quorum, from returning in time. However, the Open Meetings Law requires at least two hours’ notice before the Legislature can vote on a bill.

The judge’s ruling does not affect the merits of the law and state Republicans could cure the defects by re-voting on the legislation.

Wisconsin’s “Budget Repair Law” makes it nearly impossible for public-sector unions to exist. Under the bill, unions cannot negotiate about benefits or working conditions and wage increases are capped at the rate of inflation. Members must also vote to keep their union every year. Under the law, union members do not have to pay their fair share, local governments cannot deduct dues, and state workers can stop paying dues at any time.

Tuesday, May 31, 2011

Court Holds FFBOR Applies to Charter Cities

In International Association of Firefighters, Local 230 v. City of San Jose (May 24, 2011), the Court of Appeal ruled the Firefighters Procedural Bill of Rights Act (FFBOR) applies to charter cities, even if it conflicts with a city’s charter.

After FFBOR was enacted in 2008, Local 230 requested the City meet and confer over how it would be implemented. However, the City refused, claiming it was exempt from FFBOR because it is a charter city. The City claimed the “home rule” provisions of the California Constitution meant the city charter trumped conflicting state laws, including FFBOR.

The California Constitution gives charter cities special powers to “make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters…” (Cal. Const. art. XI, § 5.) Charter cities have claimed this provision means they do not have to follow the Public Safety Officers Procedural Bill of Rights Act (POBR). Courts, however, have rejected these claims. The Court of Appeal looked to those cases to decide whether charter cities have to comply with FFBOR.

In Baggett v. Gates (1982) 32 Cal.3d 128, the California Supreme Court decided the “home rule” provision of the state Constitution applies to issues that are “strictly municipal affairs,” but not “matters of statewide concern.” The Court of Appeal used the same analysis in Baggett and applied it to FFBOR. The Court noted stable labor relations with public employers, including firefighters, are a matter of statewide concern. It also gave “great weight” to the Legislature’s finding FFBOR addresses a matter of statewide concern.

Monday, May 23, 2011

Supreme Court Upholds California Prison Inmate Cap

The United States Supreme Court upheld a three-judge court's prison population cap, "gambling with the safety of the people of California." In Brown v. Plata (May 23, 2011), ---S.Ct. ---, the Court upheld a special three-judge court's order California reduce its prison population to 137.5% of design capacity within two years. As a result, the State must reduce the prison population by approximately 37,000 inmates.

Justice Kennedy wrote for the five member majority, arguing the State failed to provide prisoners with basic sustenance, including medical care, violating the Eighth Amendment prohibition on cruel and unusual punishment.  The Court affirmed the three-judge court's conclusion clear and convincing evidence showed only a population cap addressed the violations. Justices Scalia and Alito wrote separate dissents, arguing the three-judge court exceeded its authority under the Prison Litigation Reform Act of 1995 and gave too little weight to the risks to public safety.

Justice Scalia described the cap as “perhaps the most radical injunction issued by a court in our nation’s history.”  He questioned why releasing “fine physical specimens who have developed intimidating muscles pumping iron in the prison gym” would help “prisoners with medical conditions or severe mental illness.”  Scalia further criticized the three-judge court for "relying largely on their own beliefs about penology and recidivism" and characterizing their opinions as factual findings subject to deference on review.  In Scalia's view, the Court's decision permits "the policy preferences of three District Judges [to] govern the operation of California’s penal system."

Justice Alito echoed Scalia's concerns, noting the "Constitution does not give federal judges the authority to run state penal systems."  Alito cautioned releasing "the equivalent of three Army divisions" from California prisons may "lead to a grim roster of victims." He noted in an 18-month period following similar inmate release in the 1990s, "the Philadelphia police rearrested thousands [] for committing 9,732 new crimes [including] 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses."

Wednesday, May 11, 2011

Court of Appeals: Individuals' Pension Benefits Public Record

The Third District Court of Appeals ruled today that the California Public Records Act requires county retirement boards to disclose the names and corresponding pension amounts of its members.  The case arose from a newspaper's public record request to a county retirement board organized under the County Employees Retirement Law of 1937.

Government Code Section 31532 provides “Sworn statements and individual records of members shall be confidential and shall not be disclosed to anyone except insofar as may be necessary for the administration of this chapter or upon order of a court of competent jurisdiction, or upon written authorization by the member.” The court held pension amounts are not construed as part of the phrase “individual records of members.” The court construed the “phrase narrowly to mean data filed with SCERS by a member or on a member’s behalf, not broadly to encompass all data held by SCERS that pertains to a member” and rejected arguments that the privacy interests served by non-disclosure outweigh the public’s interest in disclosure. Retirement system members’ address, phone number, and social security numbers remain confidential.

Monday, May 9, 2011

Court Holds LAPD Failed to Accommodate Disabled Police Officer

In Cuiellette v. City of Los Angeles (April 22, 2011) --- Cal.App.4th ---, the Second District of the Court of Appeal held the Los Angeles Police Department liable for disability discrimination after it terminated a disabled police officer.

LAPD police officer Rory Cuiellette worked for the Department for several years before he was injured on the job and placed on disability leave. He was found 100% disabled on his workers’ compensation claim and remained on leave for several months before contacting the Department about coming back to work.   His doctor said he could do administrative work only.  The Department assigned him to the Fugitive Warrant Unit in a “purely administrative assignment requiring no field work other than occasionally driving to a nearby courthouse.”  However, after just a couple of days, the Department sent him home because he was found 100% disabled.

The Court held the LAPD’s actions constituted disability discrimination under the Fair Employment and Housing Act because the City failed to accommodate Officer Cuiellette’s disability.  A jury decided the LAPD failed to accommodate Cuiellette and awarded $1,571,500 in damages.  On appeal the City argued Cuiellette’s disability meant he could not perform all of the “essential duties” of police officers and therefore the City had no choice but to let him go.  The Court disagreed, noting the LAPD had several permanent “‘light duty’ assignments…for the specific purpose of accommodating disabled officers who wanted to continue to work.”

In reaching its decision, the Court relied heavily on a similar case involving a firefighter.  In Stone v. City of Mount Vernon (2nd Cir. 1997) 118 F.3d 92, a firefighter was injured in an off-duty accident.  After rehabilitation, he asked to work light duty in the Department’s Fire Alarm Bureau.  The Fire Department refused, claiming firefighters had to be able to do fire suppression even if it was not their primary job.  However, the Court decided the real question was whether a firefighter could do a particular assignment, noting other people spent their career in the Fire Alarm Bureau without doing fire suppression.   In both cases, the Court stressed permanent light duty work was available.  The Court noted the outcome might be different if the LAPD only had temporary light duty positions for police officers.