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.

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.”

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.”

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.

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.