Monday, April 18, 2011

Ninth Circuit Sets Limits on "Policymaker Exception" to Public Employee First Amendment Protections

In Bardzik v. County Of Orange (Mar. 28, 2011) --- F.3d ---, Cal. Daily Op. Serv. 3692, the Ninth Circuit Court of Appeals clarified when the “policymaker exception” applies to public employees’ First Amendment claims. The case concerned Jeff Bardzik, a Lieutenant with the Orange County Sheriff’s Department. Lt. Bardzik was the Department’s Reserve Division Commander in 2005, in charge of 600 reserve deputies. Then he endorsed the incumbent Sheriff’s rival in an upcoming election. Shortly thereafter, the Sheriff allegedly retaliated by transferring him to a position in Court Operations where he only supervised three people. He was denied pay increases and promotional opportunities even after his transfer.

Normally, an elected official cannot retaliate against a public employee for his or her political beliefs or activities. However, the “policymaker exception” allows elected officials to appoint “some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for.” As a result, if an employee is a policymaker, an elected official can retaliate against him for political activity.

Lieutenants are not automatically policymakers. Instead, whether the policymaker exception applies depends on nine factors: 1) breadth of responsibilities; 2) relative pay; 3) technical competence; 4) power to control others; 5) authority to speak for policymakers; 6) public perception; 7) influence on programs; 8) contact with elected officials; and 9) responsiveness to partisan politics. The Court also suggested a tenth factor, the ability to thwart the elected official’s agenda, was relevant to its analysis.

The Court applied these factors one-by-one to decide whether Lt. Bardzik counted as a policymaker when he was Reserve Division Commander. The Court held four of the factors favored Bardzik: he did not have a relatively high salary; he had to go through superiors before sending official memoranda to reserves; the public was unaware of his role; and it was unclear if he was responsive to partisan politics.

However, the Court found the other five factors warranted applying the policymaker exception. Engaging in a fact-intensive inquiry, the Court found Bardzik had broad discretion over the Reserve Division and often reported directly to the Sheriff. The Court also decided he had special skills and extensive authority over members of the Reserve division. Finally, the Court held Bardzik had significant influence over specific programs in the Division, a distinction the Court identified as “the most critical factor,” citing Walker v. City of Lakewood (9th Cir. 2001) 272 F.3d 1114, for authority. As a result, the Court decided the Sheriff was allowed to retaliate against Bardzik when he served as Division Commander.

The Court stressed, however, the retaliation crossed the line after the transfer to Court Operations. In Court Operations, Bardzik‘s job duties were limited to implementing, rather than making policy. As a result, the Court held his First Amendment rights prohibited continued retaliation for his political activity.

In his partial dissent, Judge Pregerson recast the facts and argued the evidence of Bardzik’s supervisory responsibilities as Division Commander did not support the majority’s conclusion he had significant control of others. Pregerson also questioned the majority’s reliance on Walker, arguing though “influence on programs” was the most critical factor in that case, the Court did not hold it would be in every case. As a result, the dissent contends, Bardzik was not a policymaker in either capacity.

Though the Court applied the "policymaker exception" on these facts, its holding is no victory for management. The holding sets a limit on "policymaker" retaliation where some retaliation renders the employee a non-policymaker. Thus, an elected official may quickly cross this line and incur liability with a series of retaliatory actions. Also, as Judge Pregerson’s dissent illustrates, whether the “policymaker exception” applies to a particular employee is a highly factual question which evades clear rank-based distinctions. Because this is a fact-intensive issue, employers will likely face significant burdens regardless of the ultimate outcome in litigation. Indeed, the Court heard Bardzik on an appeal from summary judgment after substantial discovery, press coverage and a District Court ruling for the employee.

Friday, April 8, 2011

Client Advisory: PERB, Not Courts, to Decide Probation Officers' Duty of Fair Representation Claims

In Paulsen v. Local No. 856 of Intern. Broth. of Teamsters (Cal. Ct. App., Mar. 18, 2011) 11 Cal. Daily Op. Serv. 3366, the Court of Appeal decided PERB’s exclusive jurisdiction extends to probation officers and to duty of fair representation cases. Click on the link below for a discussion of the case in PDF format:

- Court: PERB Must Decide If Union Breached Duty of Fair Representation to Probation Officer -

Thursday, April 7, 2011

State Senate Supports Appeal Rights for Probationary CHP Officers

Like most public employees, California Highway Patrol officers serve a six-month probationary period when they enter civil service.  During the probationary period, they can be terminated without the right to appeal.  On March 29, 2011, the California State Senate unanimously adopted Senate Bill 318 to give probationary officers the right to appeal to the State Personnel Board ("SPB").  If the bill is approved by the Assembly and Governor, the SPB could rescind or modify such terminations.  The full text of the bill is below.

- Senate Bill 318 -

Wednesday, April 6, 2011

Proposed Initiative Would Cut Pensions, Raise Retirement Age

Former Assemblyman Roger Niello submitted a proposed initiative to the California Attorney General, the first step toward getting on the ballot in a statewide election.  If approved by voters, the "Public Employee Pension Reform Act" would amend the California Constitution to:

  • Prohibit collective bargaining over pensions.
  • Raise the retirement age for current and future employees to 62.
  • Ban retroactive increases in pension benefits.
  • Cap retirement benefits at 60% of employees salary based on a three-year average.
  • Require pensions be calculated on base pay only.
  • Force employees to pay at least half of retirement contributions.
To pass, the proposed initiative requires a simple majority (50% + 1) and would go into effect immediately.  It has no exceptions for public safety professionals, but exempts members of the Legislature.  The author of the initiative served in the Legislature from 2004 to 2010.   

Before the Public Employee Pension Reform Act can get on the ballot, proponents must collect signatures from approximately 800,000 registered voters, a number equal to 8% of those who voted in the last election for Governor.  The full text of the proposal is below.

- Public Employee Pension Reform Act Proposal -