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.