New State Law Would Extend Social Media Password Rules to Public Sector

In September, Governor Brown signed a law making it illegal for employers to ask for employees social media passwords.  At the time, it was unclear whether the law would apply to the public sector. The new law, AB 25, would make it clear these protections apply to public sector employees too.
Assembly Bill 25

Ninth Circuit: Officers' Use of Taser 22 Times Was Justified, Despite Death of Suspect

In Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, the Ninth Circuit Court of Appeals held that officers’ repeated and prolonged use of a taser against the suspect, both in “probe mode” and in “drive-stun mode,” which resulted in the suspect’s death, did not amount to excessive force in violation of the Fourth Amendment.

The case started when two Phoenix, Arizona, police officers arrived at a suspect's family home. They learned that the male suspect was attempting to perform an exorcism on his three-year old granddaughter. Upon entering the bedroom, which had been barricaded, the officers found chaos. The walls and furniture were smeared with blood, the suspect was reclining on the bed with a silent and motionless victim in a choke-hold, and the suspect’s adult daughter was naked in the corner screaming with evidence on her face of a recent beating. One officer ordered the suspect to let the child go or he was going to be tased. The suspect did not comply and, the officer deployed his TASER X26 ECD in “probe mode.” The taser was ineffective and the suspect continued to actively resist arrest, even kicking one officer in the groin.

After the victim was removed, the suspect continued to resist. Officers were eventually able to wrestle Ronald into submission after using the taser multiple times. At that point, the officers found that he had a weak pulse. Despite resuscitation efforts, the suspect went into cardiac arrest and died. The cause of death was listed as “excited delirium” and records found that the suspect received nine five-second cycles from the X26; two while it was ineffectively deployed in “probe mode” and seven when it was deployed in “drive-stun mode.” In all, the officers pulled the X26's trigger a combined 22 times.

While the Court found that considerable force was used, the force was not excessive. Interestingly, the Court was “not convinced that the use of an X26 involves deadly force” but even if it did, under the totality of the circumstances, the force was reasonable. The Court highlighted the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving. In this situation, officers were responding to a domestic violence call in which the suspect would not release his granddaughter from a choke-hold and then struggled viciously in close quarters against the officers attempting to restrain him while his daughter, who had also been the victim of his attacks, remained in the room throughout.

CalPERS Challenges San Bernadino's "Sham" Bankruptcy

On December 14, 2012, CalPERS objected to the City of San Bernadino's bankruptcy. CalPERS bluntly called that city's bankruptcy a "sham", accusing the city of "criminal behavior" for withholding required CalPERS payments.  Read CalPERS' brief here.

Alameda County DSA Secures Stay to Stop Pension Changes

On December 12, 2012, the Alameda County DSA secured a stay to stop the Alameda County Employees' Retirement Association from implementing controversial changes to deputies' pension formulas.  ACERA announced it would change the formula to calculate deputies' retirements to exclude cashed-out vacation and sick leave accruals from "final compensation" because of its interpretation of AB 197, part of Governor's Brown's pension reform package.  The DSA quickly filed suit the block the changes and preserve members' bargained-for benefits.  The stay protects members benefits while the legal challenge proceeds.  Alameda County DSA is represented in the matter by Mastagni Law attorneys David E. Mastagni and Isaac S. Stevens.  See a copy of the stay here.

Michigan Governor Signs Law Allowing Union Free Riders

Michigan's Republican Governor, Rick Scott, signed that state's controversial anti-union laws yesterday.  There are two laws- one affecting the private sector and one affecting the public sector.  Both laws allow employees represented by a union to get the benefits of union membership without paying their fair share, hampering the ability of labor to fund representation.  The public sector law carves out police and firefighter unions, but the significance of the carve out is limited because public safety unions have much higher voluntary union membership rates.

New York Court Finds Post-Critical Incident Breathalyzer Legal Under Some Circumstances

In Palladino v. City of New York (S.D.N.Y., June 28, 2012, 07 CV 9246 GBD) 2012 WL 2497272, a federal court in New York decided NYPD’s policy of requiring a breathalyzer for officer who discharged firearms in critical incidents was constitutional under some circumstances. The case started after NYPD required all uniformed members involved in firearms discharges resulting in injury to or death of a person be subjected to Department administered alcohol testing. The stated purpose of the policy was to ensure the highest levels of integrity at the scene of officer involved shootings.

Law enforcement unions sued, arguing the policy was an unreasonable search in violation of the Fourth Amendment. However, the Court decided the primary purpose of the policy was to deter police officers from becoming intoxicated and discharging their weapon, which qualified as a “special need”. The Court decided NYPD officers carrying and discharging firearms had diminished expectations of privacy, the breathalyzer test was not an overly intrusive search, the policy was applied uniformly, and the policy was narrowly tailored to accomplish NYPD's goals of ensuring compliance with its policies regarding personnel management.  The ruling only addresses the constitutionality of the policy and not whether it would violate California state laws such as POBR.

Court of Appeal Gives Defendants Limited Access to Witness Statements in IA Files

In Rezek v. Superior Court (2012) 206 Cal. App. 4th 633, the California Court of Appeal, Fourth District, ruled witnesses statements in peace officers personnel files can be turned over to defendants in criminal cases under some circumstances. In this case, officers arrested a defendant for obstruction of justice. The defendant also filed a citizen complaint against the officers. IA investigated the complaint and took statements from witnesses. The DA charged the defendant who then filed a Pitchess motion for the witness statements.

The Fourth District decided defendants can get those statements if they submit a supporting declaration proposing a defense and articulate how the requested discovery may be admissible in support of the proposed defense, or how the requested discovery may lead to such evidence. The court disagreed with the city’s argument that Penal Code section 1045.1, which requires the prosecutor to disclose to the defense relevant witness statements, is the exclusive means by which a defendant may obtain such statements.

Supreme Court Leaves Controversial Eavesdropping Ruling In Place

In American Civil Liberties Union of Illinois v. Alvarez (7th Cir. 2012) 679 F.3d 583, the Court of Appeal decided Illinois’ eavesdropping statute is unconstitutional.  The law makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent.  Defendants can be sentenced to up to fifteen years if they record a peace officer. The statute does not prohibit taking silent videos of police officers performing their duties in public; turning on the microphone, however, is prohibited.

The American Civil Liberties Union (ACLU) challenged this statute as applied to the organization’s Chicago-area “police accountability program,” which included a plan to record police officers performing their duties in public places. The local police union defended the law because it prevents people from recording officers to release snippets out of context.  The Court, however, found that the statute “restricts far more speech than necessary to protect legitimate privacy interests” and “it likely violates the First Amendment’s free-speech and free-press guarantees” as applied to the alleged facts.

The Court of Appeals argued the statute “interferes with the gathering and dissemination of information about government officials performing their duties in public.” The Court was quick to point out, however, that their decision would not immunize “behavior that obstructs or interferes with effective law enforcement or the protection of public safety.”  On Monday, November 26, 2012, the United States Supreme Court declined to hear the State’s appeal and thus, the Seventh Circuit’s ruling was left in place.

Court of Appeal: Firefighter's Standby Pay Not Pensionable

In City of Pleasanton v. CalPERS (Nov. 29, 2012) 2012 WL 5984074, the Court of Appeal ruled "Standby Pay" does not count toward pension benefits.  The firefighter at the center of the case worked a 40-hour workweek.  However, he received 7.5% "Standby Pay" for being on call. At issue in the case was whether that 7.5% "Standby Pay" counts as pensionable earnings for his CalPERS retirement. The Fourth District found the "Standby Pay" was not pensionable because it was for services rendered outside of his normal working hours.  The Court said the payments could not be construed as holiday pay, shift differential pay, training premium pay, management incentive pay or off-salary-schedule pay because the 7.5% “Standby Pay” did not meet any of the definitions contained in CalPERS Regulation 571.  

Riordan Pulls the Plug on Plan to Gut LA Pensions

Former Los Angeles mayor and Republican gubernatorial candidate Richard Riordan announced today he would no longer try to qualify a local initiative for the ballot on Los Angeles to gut public employees' pensions.  Riordan's plan called for replacing the defined benefits pension most public employees have where employees earn credit for each year they work with a defined contribution plan where retirees would get an unpredictable about of money depending on the stock market and other investments.

The plan was widely criticized by labor groups.  The Los Angeles Police Protective League revealed Riordan never conducted a study on whether the plan saved the city money and that it could actually cost much more in the immediate future.  Other labor groups cited the changing public opinion on pensions since Governor Brown's statewide pension reform package passed in August.  Riordan pulled his plan today acknowledging he would be unable to gather enough signatures to put it on the ballot.

Mastagni Law App Puts POBR and FFBOR on Your Mobile Device

Mastagni Law is rolling out the new Mastagni Law App.  The free app is available for Apple and Android devices.  The Mastagni Law App provides first responders and private citizens with helpful resources and emergency tools to assist with on-the-job injuries and life-changing events.  The app features easy-to-use resources on the Peace Officers' Bill of Rights and Firefighters' Bill of Rights.  Other features include:

• Accident Log to record pertinent information at the scene of a vehicle accident
• Ability to capture photos of accident scene and vehicle damage
• Medical Log in the event you are injured, an automated calendar will keep track of your doctor appointments, dates and allows for notes on medical recommendations
• 24-Hour access to call our attorneys to report a Critical Incident
• Exposure Report to submit to our attorneys in the event you have been exposed to a potentially hazardous element
• Helpful resources on Contract Negotiation

Stockton Voters Throw Mayor Out of Office in Landslide, Elect Pro-Public Safety Candidate

After years of cuts to police and rising crime, Stockton voters held the politicians accountable Tuesday.  Stockton voters overwhelmingly rejected mayor Ann Johnston's cuts to public safety, throwing the incumbent out of office in a landslide 58% to 42% vote.  Public safety was the central issue in the campaign.  Johnston attacked the Stockton Police Officers' Association in a flyer celebrating the way police officers' and firefighters' benefits were "slashed" and "axed" under her watch.  Mayor-elect Anthony Silva, on the other hand, campaigned on a promise to raise revenue and hire 200 more police officers, saying voters "want more police on our streets, they're saying we want our neighborhoods to be safe."

Voters Reject Prop 32

California voters overwhelmingly rejected Proposition 32, which would have restricted unions' access to payroll deductions for political activity.  Prop 32, widely known as the Special Exemptions Act, was the latest in a series of attacks on unions nationwide.  Public safety labor groups lead the charge in opposition to the proposition.

Michigan Voters Considering Constitutional Right to Collective Bargaining

After a string of stinging defeats at the ballot box, labor leaders in Michigan are trying to turn the tide by establishing a state constitutional right to collective bargaining.  Next Tuesday, Michigan voters will go to the polls to decide Proposal 2, which would create a state constitutional amendment locking in union rights in the state.  Proposal 2 would:

• allow police officers and firefighters to negotiate safe staffing levels
• establish a constitutional right to form a union and bargain collectively
• invalidate any attempts by the state legislature to limit collective bargaining rights
• override state laws about employees hours and conditions of employment 
• mandate binding arbitration for some police groups

If passed, Proposal 2 would be the first of its kind in the country.  The campaign to pass Proposal 2 got a big boost earlier today, when President Clinton endorses the measure.  

Bankrupt San Bernardino Stops Payments to CalPERS

The Sacramento Bee reported today that the City of San Bernardino stopped making payments to CalPERS.  The City filed for bankruptcy protection on August 1, 2012. However, according the CalPERS "under the law of the State of California, a participating public employer in bankruptcy may not terminate its relationship with CalPERS through “rejection” of its “contract” with CalPERS in the bankruptcy proceeding."   The City's move comes on the heels of an announcement by the federal Securities and Exchange Commission that it was opening an investigation into the City's finances.

Mastagni Law to Host Webinar on New GASB Pension Rules

The Government Accounting Standards Board recently issued sweeping new guidelines for how public agencies are supposed to account for pensions.  On Tuesday, November 20, 2012 at 10:00 AM, Mastagni Law labor consultant Shayleen O. Mastagni and attorneys David E. Mastagni and Jeffrey R. A. Edwards will lay out the nuts and bolts of the new GASB rules for pensions, what they really mean, what they don’t, and how it impacts labor negotiations. By debunking the myths and rumors, this webinar will empower labor leaders to navigate the tricks management is going to play to get concessions they don’t really need.

New GASB Rules for Pensions: 

What Labor Leaders Need To Know

Tuesday, November 20, 2012 10:00 AM

Registration is free.

Register at: https://mastagni.webex.com/mw0307l/mywebex/default.do?siteurl=mastagni

Governor Brown Signs Password Protection Law

On September 27, 2012, Governor Brown signed AB 1844 to will protect employees’ social media usernames and passwords. This law will make California the third state in the country, after Maryland and Illinois, to protect employees in this way. Once the law goes into effect, it will be illegal for an employer to request an employee’s online account information, be it email, Facebook, or otherwise.

For the employers who decide to ignore the law and still ask for passwords, the new bill will make it illegal for the employer to take any action against an employee who refuses to give access to social networking accounts. The California law does include some special rules for when an employer may legally demand social media information. The first is for investigations. If an employee is accused of a crime or other misconduct, the employer can demand access to email or social media content if it is relevant to the investigation. The second is for electronic devices the employer provides.

If an employer gives you a computer or phone for work use, they can demand your passwords for access to those devices. This appears to be sparking a wave of workers’ rights legislation. The New Jersey legislature has already passed a similar law, and it waits for Governor Christie’s approval. A bill currently called the Password Protection Act of 2012 is also gaining traction in Congress, so we may soon have a national standard for internet privacy rights in the workplace.

Brown Vetoes Limits on Cooperation with ICE

Governor Jerry Brown vetoed AB 1081, the so-called "Trust Act," which would have limited local law enforcement's ability to cooperate with Immigration and Customs Enforcement in local correctional facilities.  The bill sought to prohibit local law enforcement from honoring ICE holds unless the suspect is charged or has been convicted of certain "serious" or "violent" felonies.  In his veto message, the Governor noted the law would prohibit honoring holds on many suspects whose crimes involved child abuse, drug trafficking, selling weapons, using children to sell drugs, and gang activity.

Court of Appeal Rules Administrative Hearing Officers May Hear Pitchess Motions in Peace Officer Discipline Cases

In Riverside County Sheriff’s Department v. Jan Stiglitz (September 28, 2012) 2012 WL 4466333, the Court of Appeal decided peace officers can obtain Pitchess discovery in an administrative hearing provided under POBR. The case started after the Riverside County Sheriff's Department fired a correctional deputy for falsifying her time records. The officer appealed her termination. She asserted that the penalty of termination was disproportionate. She asked the hearing officer for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct. After the hearing officer granted the request, the Department went to court to stop it.

The Court ruled Pitchess discovery is available in a Section 3304(b) administrative hearing if it is relevant. The Court reasoned that POBR entitles officers to a full evidentiary hearing, including relevant discovery. The Court decided that though the Evidence Code sections codifying the Pitchess process were ambiguous, they do not preclude administrative hearing officers from considering requests for peace officers' personnel files under some circumstances.

Court of Appeals Upholds Termination for Medical Marijuana Card-Holder

In Casias v. Walmart (Sept. 19, 2012) 2012 WL 4096153, the Court of Appeals for the Sixth Circuit upheld the termination of an employee who tested positive for marijuana even though he had a state-issued medical marijuana registry card.  Casias was an employee of Walmart in Michigan when he tested positive for marijuana on a drug test and Walmart fired him.  He claimed he never used marijuana at work or came to work under the influence and that Walmart should not be allowed to fire him because he had a state-issued medical marijuana card.  The Court disagreed.

The Court ruled Michigan's medical marijuana law did not prevent employers from firing workers who use marijuana, it just prevented State and local agencies from seeking criminal penalties against card holders.  The Court's ruling mirrors California law.  In Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, the California Supreme Court ruled California's medical marijuana law does not prohibit employers from firing marijuana users.  Several attempts to change California law to ban the practice have failed, most recently SB 129 which died in committee in February.

Court Finds Impairment of Pension Benefits Unconstitutional Under Contract Clause

In Cherry, Jr. et al. v. Mayor and City Council of Baltimore City, et al., (D. Md., September 20, 2012), Case No. MJG-10-1447, a federal judge ruled Baltimore's plan to impair firefighters' and police officers' pensions is unconstitutional under the Contract Clause of the federal Constitution.  The Contract Clause provides that "No State shall...pass any...Law impairing the Obligation of Contracts..."  The Clause frequently comes into play when the government tries to pass laws to get out of its own contractual obligations, including collective bargaining agreements.

To pass muster under the Contract Clause, a law that impacts the government's contracts has to pass several tests.  The test at the center of the Cherry decision is the "reasonable and necessary" test.  To pass this test, there have to be unforeseeable consequences to the contract and the law impairing the contract must be the least drastic impairment.  In Cherry, the Court ruled the City failed this test because the unions offered more balanced approaches.

While the ruling in Cherry decision vindicates public employees in Baltimore, several California cities are trying to impair their contractual obligations.  Mastagni Law attorneys David E. Mastagni, Isaac S. Stevens, and Jeffrey R. A. Edwards are litigating similar challenges against the cities of Los Angeles, Stockton, and Pacific Grove.

Court of Appeal Upholds Injunction to Stop City from Outsourcing Jobs

In Costa Mesa City Employee’s Association v. City of Costa Mesa et al. (CA4/3 G045730), the Fourth District Court of Appeal upheld a preliminary injunction enjoining the City of Costa Mesa (the City) from outsourcing City jobs.  The Court’s order stops the City from outsourcing work preformed by Costa Mesa City Employees’ Association (CMCEA) or laying off CMCEA members as a result of outsourcing.

Costa Mesa wanted to outsource several city services. CMCEA filed suit to stop the City’s outsourcing plan for violations of Government Code sections 37103 and 53060. The lawsuit also alleged the plan violates the parties’ Memorandum of Understanding (MOU) because the City did not meet with CMCEA to determine which jobs should be contracted out and how to mitigate layoffs; rather, it unilaterally decided to outsource many jobs. The trial court granted a preliminary injunction and the Fourth District affirmed.

In its opinion, the Fourth District decided there would be irreparable harm if CMCEA members lost their jobs.  The Court also decided a preliminary injunction was appropriate because losing a job and income is a greater harm than the citizenry’s interest in cost-effective government.

The Fourth District found that the City’s outsourcing plan violated both the parties’ MOU and state law. The Court found that the City violated the MOU because there was no evidence the City included CMCEA in the decision-making process.  The Court also found that Government Code sections 37103 and 53060 generally prohibit cities from contracting with a private entity, unless the contract is for “special services.”  The Court decided the only things that counted as “special services” in Costa Mesa are operation of the City’s jail and administration of its payroll services.  As a result, the Court concluded that there was enough evidence that CMCEA would win its lawsuit since CMCEA members were able to do the work.

Mastagni Law to Host Webinar on Workers' Compensation Reform

Senate Bill 863 makes major changes to California's Workers' Compensation System. On Wednesday, September 26, 2012 at 10:30 a.m., Mastagni Law attorneys John Holstedt, John P. Tribuiano, Jonathan W. A. Liff, and Eric Ledger will discuss the bill and how public safety professionals can protect their rights in the new Workers' Comp system.

  Workers' Compensation Reform: 

What SB 863 Means For Public Safety Professionals

Wednesday, September 26, 2012 10:30 AM

Registration is free.  

Register at:  https://mastagni.webex.com/mw0307l/mywebex/default.do?siteurl=mastagni

Mastagni Law Teams Up with Ron Cottingham to Host Webinar on New Pension Law

Governor Brown's pension reform package, AB 340, makes significant and far-reaching changes to public sector pensions in California.  On Wednesday, September 12, 2012 at 1:00 PM, PORAC President Ron Cottingham will join Mastagni Law labor consultant Michael Jarvis and attorneys David E. Mastagni and Jeffrey R. A. Edwards to discuss the details of the new law, its impacts on CalPERS and 1937 Act jurisdictions, and how it affects current and new employees.

The Public Employee Pension Reform Act: 

What AB 340 Means For Public Safety

Wednesday, September 12, 2012 1:00 PM

Registration is free.  

Register at:         https://mastagni.webex.com/mastagni/onstage/g.php?t=a&d=664797921

Report: Stockton Losing Experienced Officers

KCRA News reports the City of Stockton is facing a new problems after filing for bankruptcy.  According the report, "experienced police officers are leaving in droves."  A big part of the problem is that the "new cuts in the bankruptcy, essentially eliminating Senior Officer Pay, are causing a flight of officers, the veteran officers that you want to keep: they know the streets, they know the crime," according to Mastagni Law partner David E. Mastagni.  The recent attention to the flight of officer comes after bond holders argued employees aren't paying their fair share in the bankruptcy.  However, "I think if anybody's not bearing their fair share, it's the bond market," Mastagni said. "The cops are the ones out there jumping fences and putting their lives on the line."  Watch the full report here.

More Details Emerge About Pension Deal

Yesterday, Governor Brown and legislative leaders announced a sweeping deal to alter pension benefits.  The full text of the bill, AB 340, is now available.  The Legislature will vote on the 60-page bill Friday.

Statewide public safety groups have been critical of the bill.  PORAC President Ron Cottingham noted, "This attack on middle class families, including public safety employees, is unacceptable."  CPF President Lou Paulson stated, "these proposals go far beyond “reform”. Instead they threaten basic retirement security for generations of front line first responders and their families."

Brown, Legislature Announce Sweeping Pension Deal

Governor Jerry Brown and legislative leaders announced a sweeping pension deal that, if passed, would dramatically reshape public-sector pensions in California.  The so-called Public Employee Pension Reform Act of 2012 would eliminate 3 @ 50, introduce a 2.7 @ 57 formula for public safety, require employees to pay more of their salaries into pension funds and require new caps on pensionable salaries.  Several elements of the proposal are facing stiff criticism from labor.  For example, the pensionable salary component is a cap on  how much of a salary counts for credit, not a cap on pension benefits, penalizing people with high compensation, but low service credit.

According to the Governor, "If the Legislature approves these reforms, public retirement benefits will be lower than when I took office in 1975."  The Governor's Office put out the following summary of the deal:

Public Employee Pension Reform Act of 2012

Caps Pensionable Salaries

·         Caps pensionable salaries at the Social Security contribution and wage base of $110,100 (or 120 percent of that amount for employees not covered by Social Security).

Establishes Equal Sharing of Pension Costs as the Standard

·         California state employees are leading the way and are paying for at least 50 percent of normal costs of their pension benefits. Requires new employees to contribute at least half of normal costs, and sets a similar target for current employees, subject to bargaining.

·         Eliminates current restrictions that impede local employers from having their employees help pay for pension liabilities.

·         Permits employers to develop plans that are lower cost and lower risk if certified by the system’s actuary and approved by the legislature.

·         Provides additional authority to local employers to require employees to pay for a greater share of pension costs through impasse proceedings if they are unsuccessful in achieving the goal of 50-50 cost sharing in 5 years.

·         Directs state savings from cost sharing toward additional payments to reduce the state’s unfunded liability.

Unilaterally Rolls Back Retirement Ages and Formulas

·         Increases retirement ages by two years or more for all new public employees.

·         Rolls back the unsustainable retirement benefit increases granted in 1999 and reduces the benefits below the levels in effect for decades.

·         Eliminates all 3 percent formulas going forward.

·         For local miscellaneous employees: 2.5 percent at 55 changes to 2 percent at 62; with a maximum of 2.5 percent at 67.

·         For local fire and police employees: 3 percent at 50 changes to 2.7 percent at 57.

·         Establishes consistent formulas for all new employees going forward.

Ends Abuses

·         Requires three-year final compensation to stop spiking for all new employees.

·         Calculates benefits based on regular, recurring pay to stop spiking for all new employees.

·         Limits post-retirement employment for all employees.

·         Felons will forfeit pension benefits.

·         Prohibits retroactive pension increases for all employees.

·         Prohibits pension holidays for all employees and employers.

·         Prohibits purchases of service credit for all employees.

Court Limits Protections for Peace Officers Accusing Other Officers of Misconduct

In Dahlia v. Rodriguez (9th Cir., Aug. 7, 2012, 10-55978) 2012 WL 3185693, the Ninth Circuit decided the First Amendment does not protect a police officer who told an outside agency some of his colleagues went too far during interrogations.

Angelo Dahlia, a detective for the Burbank Police Department, accused other officers of excessive interrogation tactics. He told the Los Angeles Sheriff's Department that officers squeezed a suspect’s throat and placing the barrel of a gun directly under the suspect’s eye. Dahlia also claimed he heard noises coming from the interrogation rooms including yelling and the sounds of someone being hit. Dahlia was later placed in administrative leave.

Dahlia filed a federal civil rights lawsuit alleging unconstitutional retaliation. The Court concluded Dahlia's actions, as a part of his public employment, were not protected by the First Amendment because he failed to establish that: 1) his speech was “spoken in the capacity of a private citizen and not a public employee”; and 2) that placement on administrative leave constitutes an adverse employment action. The Court relied heavily on Huppert v. City of Pittsburg, (9th Cir. 2009) 574 F.3d 696.

The Ninth Circuit looked at the precedent setting case of Garcetti v. Ceballos (2006) 547 U.S. 410, which held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Under Garcetti, the protection of the First Amendment is thus limited where the speech is “part of the core tasks that the employee is ‘paid to perform,’” but not where the speech is merely related to the speaker’s public employment.” Huppert, decided after Garcetti, went further. There, the Court held police officers have a duty to blow the whistle because they must disclose information regarding alleged misconduct and corruption. The Court criticized the Huppert, but it was required to follow the rule. Thus, the Court held Dahlia was acting within his professional duties, and not as a public citizen, when he accused other officers of abusive interrogation tactics, and his speech was not protected under the First Amendment.

The Ninth Circuit did make one favorable ruling to police officers suing for retaliation. The Court decided “under some circumstances, placement on administrative leave can constitute an adverse employment action.”  Importantly, the appeal was just about First Amendment rights. Other parts of the case dealt with state laws that also protect whistleblowers.

Stockton’s Eligibility for Bankruptcy Protection Challenged

On August 8, 2012, National Public Finance Guarantee Corporation filed an objection to the City of Stockton’s qualifications for bankruptcy under Section 109(c) of the Bankruptcy Code. National issued over $93,000,000.00 in lease revenue bonds, lease revenue refunding bonds, and revenue bonds. Today, August 9th, is the deadline for creditors to object to Stockton's eligibility for bankrupcty.

Challenges to eligibility typically involve disputes over insolvency and/or the requirement that the City negotiated with creditors in good faith during the 60-90 days of the AB 506 period. Federal bankruptcy law also requires good faith negotiations with creditors.

National argues the City did not negotiate in good faith with its creditors and did not file its bankruptcy petition in good faith. National accuses the City of “sheltering” its CalPERS pension obligations and not treating creditors equitably. National frames its objections as failing to negotiate in good faith with CalPERS, but argues that the pendency plan does not treat creditors equitably.

National’s claim of inequitable treatment appears premature as the Court must determine the City’s eligibility for bankruptcy, before considering the fairness of the plan of adjustment. In denying retirees facing the complete elimination of retiree medical benefits next year, Judge Klien an August 6, 2012 Opinion holding that “[s]ettled bankruptcy law permits the City to implement interim contractual modification before the confirmation of a chapter 9 plan of adjustment but such revisions do not, as a matter of law, become permanent unless and until made part of a confirmed plan of adjustment or otherwise voluntarily agreed.” Judge Klein noted that the remedy for addressing objections to the pendency plan is negotiating their treatment under a chapter 9 plan. The same reasoning would seem to apply to National’s objection to the treatment of CalPERS.

National’s argument also fails to account for the tens of millions of dollars in wages and benefits withheld from employee since 2010 through purported emergency actions unconstitutionally impairing labor contracts. These additional cuts reduced pension benefits, required employees to contribute up to 9% of their pay towards their pensions, drastically reduced medical coverage. The effect of these cuts is directly reflected in the City’s record breaking homicide rates and inability to retain or recruit police officers.

A status conference before the Judge will be heard on August 23, 2012 at 10:00 a.m. for trial setting for challenges to eligibility.

New Requirements for Governments on Reporting Pension Liability

Recently, GASB (Governmental Accounting Standards Board) approved two new pension accounting and reporting standards that will cause significant changes for how governments report defined benefit pension plans on their financial statements. This will affect all governments that provide benefits through single employer or agent plans as well as governments participating in multi-employer cost sharing plans. Historically, GASB required that governments disclose the amount of unfunded pension obligation in notes accompanying the financial statements. The obligation was not actually recognized on the financial statements themselves.

 Now, under the new standards, governments will be required to report the amount of unfunded pension obligations on their balance sheets. This liability, which equals the total pension liability less the amount of plan assets formally set aside for payment of benefits, will be required to be recorded as of the reporting date. In addition, the annual pension expense which will be based on a measurement of the annual cost of the pension benefits will be recorded on the income statement.

 In the past, the annual required funding amounts was reported. This will also affect governments participating in multi-employer cost-sharing plans on a proportionate basis. Statement No. 67 which affects reporting of pension plans that administer benefits for governments goes into effect after June 15, 2013. Statement No. 68 which relates to pension plan reporting by governments will go into effect after June 15, 2014.

Sacramento Business Journal: Mastagni Law Brings in Muscle to Audit Cities' and Counties' Books

The Sacramento Business Journal reports Mastagni Law has teamed up with forensic accountants to audit the books of cities and counties claiming financial problems.  The article profiles Shayleen O. Mastagni who came in-house at the firm after working as a Senior Vice President at Perry-Smith Accounting and Bridget Sanders, Senior Manager at the accounting firm Wallace Valuation Advisors. According to Shayleen Mastagni,  "The question is are you going broke or blowing smoke with financial obligations not due for 30 years?"  To answer that question, both women scrutinize the books to see if agencies are hiding money or facing legitimate financial problems.

Report: Corrections Furloughs Don't Save Money

A new report on the Oregon state prison system shows why furloughs in public safety don't save money.  The report puts in black and white what most public safety professionals already know: 24-hour operations require back-filling when regular staff are furloughed.  The report compared the cost of correctional staff with the cost of back-filling with extra help and overtime, revealing that furloughs cost the state more money than they save.

California Democratic Party Joins Police and Fire Unions to Oppose Prop 32

The Sacramento Bee reports that the California Democratic Party has voted to officially oppose Proposition 32, which would restrict union political fundraising by prohibiting use of payroll-deducted funds for political purposes.  CPF and PORAC are already aggressively opposing Prop 32.

Mastagni Law Celebrates the Firm's 2012 Super Lawyers

Mastagni Law celebrates the firm's 2012 Northern California Super Lawyers David P. Mastagni and John R. Holstedt and 2012 Northern California Rising Stars David E. Mastagni, Phillip R.A. Mastagni and John P. Tribuiano.

Stockton Officials Mired in New Scandals

Just months after the Stockton Record blew the whistle on city council members accepting questionable payouts, city officials face new allegations of wrongdoing.  The Record reports that city manager Bob Deis is being investigated for battery on a high school teacher/protester in front of city hall.  At the same time, former police chief Blair Ulring withdrew his application to be the police chief of Spokane, Washington after local press there "questioned the validity of Ulring's diplomas."  Watch the video report on Ulring here.

Supreme Court Vindicates Unions' Free Speech Rights

The Supreme Court recently upheld union free speech.  The Court struck down a Montana law restricting the ability of unions and other corporations to expend funds for political purposes. The Montana law stated a corporation may not “make an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” A small group of organizations including Montana Shooting Sports Association filed a lawsuit arguing that the law interfered with their First Amendment right of free speech.

In American Tradition Partnership, Inc. v. Bullock, the Court agreed, holding Montana's law directly conflicts with the U.S. Constitution. The Court’s decision relied heavily on the prior decision of Citizens United v. Federal Election Commission. In Citizens United, the Supreme Court ruled the First Amendment prohibited the government from overly restricting independent political expenditures by corporations and unions. The ruling effectively frees unions to spend money on elections and to directly advocate for the election or defeat of candidates (although not to contribute unlimited amounts directly to candidates or political parties). The Court’s decisions validate the reason why people formed unions in the first place: to give workers the freedom to come together to voice their concerns and fight for their members.

San Diego Mayor Under Fire at PERB

The Sacramento Bee reports San Diego mayor Jerry Sanders was "grilled" for more than five and a half hours during last week's hearing at the Public Employment Relations Board.  Sanders and the City face scrutiny at PERB over their attack on employee's retirement security.  PERB granted the unions' request for injunctive relief in February, but a San Diego Court stalled the process temporarily.  Then, in June, PERB won the right to proceed at the Court of Appeal.  Now, PERB is processing the complaint and an administrative law judge will rule whether the City violated the MMBA by putting the pension measure on the ballot without meeting and conferring with the unions.  Both sides are expected to appeal regardless of the outcome.

Judge Denies Stockton’s Motion to Disclose AB 506 Negotiations, Prepares for Challenge to Bankruptcy Eligibility

In the first hearing since Stockton’s June 28, 2012 filing of a bankruptcy petition, Judge Christopher M. Klein established firm control over the proceedings. This initial hearing focused on motions brought by the City of Stockton to lift the statutory confidentiality of its pre-bankruptcy negotiations under A.B. 506, notice to creditors, and scheduling deadlines for anticipated challenges to Stockton’s eligibility to file bankruptcy.

After a thoughtful discussion of competing interests, Judge Klein denied Stockton’s request for permission to disclose confidential communications made during the A.B. 506 pre-bankruptcy process. The California statute provides that negotiations during the 506 process cannot be disclosed except by court order if necessary to challenge the City’s bankruptcy eligibility. Judge Klein followed federal evidence rules providing for confidentiality of settlement negotiations with similar exceptions for information needed to determine eligibility for bankruptcy. The court explained the issue could be revisited if the information becomes necessary to determine eligibility. The Court did authorize the disclosure of the number and length of 506 meetings, the participant, the subject matters discussed, and the City’s “Ask” (the requested plan of adjustment).

Challenges to eligibility typically involve disputes over insolvency and/or the requirement that the City negotiated with creditors in good faith during the 60-90 days of the AB 506 period. Good faith negotiations are also required under federal bankruptcy law. A representative from the capital market indicated that it may challenge the City’s method of claiming insolvency on a budgetary basis as opposed a cash flow basis (an inability to pay obligations as they come due). Assured Guaranty, which insured $161.4 million of Stockton’s bonds, publicly stated it intends to vigorously enforce its rights as a creditor in any Chapter 9 proceeding, including the right to contest eligibility and confirmation of any plan of adjustment proposed by the city.

Judge Klein modified the City’s proposed timelines, setting a deadline of July 20th was set for the City to submit all its evidence of eligibility for bankruptcy and August 9th for filing objections to the City’s eligibility. A status conference before the Judge will be heard on August 23, 2012 at 10:00 a.m. for discussing discovery, motions, pretrial and trial setting for challenges to eligibility. Judge Klein also authorized the Stockton Police Officers Association (SPOA) to set a noticed motion to lift the stay over disciplinary appeals. After filing the Petition on June 28th, the City has taken the position that it will not proceed with appeals of disciplinary actions imposed against police officers. The City argues that because the appeals involve potential back-pay they are automatically stayed by the bankruptcy. While evaluating potential challenges to the City’s eligibility, the SPOA continues to negotiate with the City over its plan of adjustment.

 Chapter 9 requires as a condition of confirmation that a majority of each classes of claims impaired accept the plan. Although Chapter 9 also includes “cramdown” provisions requiring only acceptance of one class of claims, the court informed the City that it did not intend to simply confirm the City’s plan of adjustment. Rather Judge Klein told the City it would have to negotiate a plan of adjustment with its creditors, likely requiring further mediation.

Tom Sullivan Interviews David P. Mastagni on Why Cities Scapegoat Cops and Firefighters

Mastagni Law partner David P. Mastagni recently appeared on the Fox's Tom Sullivan Show to explain why California cities, including Stockton, are trying to scapegoat public safety professionals and violate their contractual obligations.  He explained that in light of what cities are doing with their contracts, "you dont have to be an Apache Indian or Geronimo to understand what the government thinks of its contractual obligations."

The real problem is that cities made "bad business judgments" by approaching infrastructure projects like it was "college lab class," investing other people's money in ventures they knew little about.  Now that cities are seeing red, they're blaming police officers and firefighters, but "blaming the police is nothing but a red hering." 

Watch the whole video here.

Court of Appeal Vindicates Injured Workers' Right to Temporary Disability

In Meeks Building Center et al. v. WCAB and Salem Najjar (June 26, 2012, C065944; WCAB No. ADJ4255212), the Third District Court of Appeal vindicated an injured worker's rights after his employer tried to use a legal technicality to cut off his temporary disability prematurely. After Salem Najjar was injured on the job, his employer sent him to a qualified medical evaluation to learn more about his injuries.  He saw the doctor on September 11, 2007 and received $64.71 for the wages he lost that day.

Najjar continued working.  Then, on March 17, 2009, the doctor determined he was temporarily disabled and needed to be off work.  As a result, he started getting temporary disability payments so he could recover.  Under the Labor Code, injured workers can receive up to two years of temporary disability payments if necessary.  However, on September 8, 2009, the employer cut off his temporary disability payments.  They claimed the two years started running when they sent him to the doctor in 2007, even though he only got one's days wages. 

Mastagni Law partner John Holstedt fought for Najjar in the Workers' Compensation Appeals Board and the Third District Court of Appeal.  Both bodies found for Najjar, deciding the one day's payment in 2007 did not start the clock on temporary disability.  Instead, the Court of Appeal noted the one day payment was "not a payment of temporary disability benefits, but a reimbursement of a medical-legal expense."  Accordingly, the Court of Appeal affirmed the ruling at WCAB and upheld Najjar's right to receive full temporary disability payments while he was off work recovering from his injury.

PERB Wins First Round in Challenge to San Diego's Pension Initiative

In San Diego Municipal Employees Association v. Superior Court (4th DCA, June 19, 2012) 2012 WL 2308142, the Court of Appeal found PERB has initial jurisdiction to review a ballot initiative affecting public employee pensions and the trial court erred by blocking the PERB process.

The case started after the “Comprehensive Pension Reform Initiative” (CPRI) qualified for the ballot in San Diego. The initiative amends San Diego’s charter to impact retirement benefits for employees. The Municipal Employees Association (Association) filed an unfair labor practice charge alleging the City failed to meet and confer as required under the MMBA before placing the CPRI on the ballot.

PERB issued a complaint against the City and authorized its general counsel to file for an injunction. However, the trial court denied PERB’s motion to enjoin the City from placing the initiative on the ballot. The trial court also granted the City’s motions to stay the administrative proceedings and quash PERB's subpoenas. The Association then filed a writ in superior court.

The City argued PERB did not have jurisdiction over the Association’s claims as it involved a dispute over the constitutional free speech rights. The Court found while constitutional rights may be implicated it was not sufficient to divest PERB of its exclusive initial jurisdiction to consider the Association’s claims. The City also claimed go through the PERB process since PERB had already sought temporary injunctive relief and its neutrality was compromised. The Court disagreed the City’s argument that going before PERB would be futile. The Court also found the trial court erred in ordering a stay of the PERB administrative proceedings and let PERB proceed with the unfair practice charge.

New Report Links Police Layoffs to "Surge" of Murders in Stockton

A new report from Bloomberg Television explores the skyrocketing murder rate in Stockton, its link to the city's decision to lay off police officers, and the impact on families.  The report explains Stockton "has seen a surge in murders in recent years as the number of police officers has declined" and an "emboldened criminal element" is taking advantage.  The report reveals the number of police officers is down 26% from 2008 and the murder rate is on track to set a new record this year.  Watch the full report here.

Court Awards Millions in Back Pay for Furloughs

In Professional Engineers in California Government, et al. v. Edmund G. Brown, Jr. et al., Case No. R610-494800, the Alameda County Superior Court awarded back pay to state workers unlawfully furloughed in 2009 and 2010.  The Court's June 7, 2012 ruling found that employees whose positions were not funded by the state budget act could not be furloughed by the act.

The Court's ruling also focused on the "single subject rule", part of the California Constitution that prohibits budget bills from changing substantive law in other areas.  As a result, the Court concluded the furloughs were unlawful for some state workers whose responsibilities were protected by specific sections of the Water and Health & Safety Codes.

Finally, the Court discussed a requirement in the budget act that furloughs to line staff be proportional to furloughs for managers.  The Court decided the requirement means that the state went too far when in furloughed line staff more than managers, entitling workers to back pay to make up the difference.  The parties expect the the ruling to cost the state millions of dollars in back pay.

Lawsuits Filed to Stop Attacks on Retirement Security

Legal challenges are already underway to local pension initiatives passed by voters Tuesday in San Diego and San Jose.  The initiatives, both named "Measure B", attack public employees' pensions in those cities.

San Diego's Measure B creates a new retirement tier replacing defined benefits with a 401(k) and lowers public safety's maximum retirement benefit to 80% of salary.  The measure also caps city payroll at 2011 for five years, risking massive layoffs for the city.  

The legal challenge to the San Diego measure started even before the election.  Unions filed an unfair practice charge with PERB in February because city leaders refused to meet and confer about the changes.  PERB quickly granted their request for injunctive relief and filed a lawsuit in San Diego to stop the measure from going before voters.  While the court initially ruled against PERB, the case was promptly appealed and oral arguments are scheduled for June 13, 2012.  PERB also issued a complaint against the city.

The San Jose measure seeks to shift the city's contributions to the pension system to employees, likely 16% of their salaries.  It also provides that if the cost-shifting provision is struck down, as many expect it will be, the city can dramatically slash salaries to make up the difference.  The plan also limits disability retirements, lets the city council take away retirees' cost-of-living-adjustments, and prices retirees out of the city health insurance plan.

San Jose police and firefighters immediately filed lawsuits in state court to stop enforcement of the measure.  The firefighters lawsuit, Robert Sapien et al. v. City of San Jose et al. seeks declaratory and injunctive relief and a writ of mandate prohibiting enforcement of Measure B.  It argues the measure violates California state constitutional protections related to due process, the prohibition on breaking public contracts, and restrictions on seizing property.  The POA's lawsuit, San Jose Police Officers' Association v. City of San Jose et al. makes similar claims and also alleges violations of freedom of speech, separation of powers, the MMBA, the parties' MOU, and the California Pension Protection Act.  The City of San Jose also filed a preemptive lawsuit in federal court seeking a declaration that the measure is not unconstitutional.

Wisconsin Exit Polls: Voters Like Unions, Not Recalls

Despite Governor Walker's win in Tuesday's recall election in Wisconsin, exit polls show the majority of voters in that state support public employees unions.  The exit polls also showed voters had strong opinions about recall elections, with more than 60% of voters saying they should only be allowed for official misconduct and 10% of voters saying recall elections should never be allowed.

Court Finds Note in "Evaluation Log" Not Punitive Action Under POBR

     In an unpublished decision, the Court of Appeal held a note in an “evaluation log" is not a “punitive action” within the meaning of POBR.  Scott Kansaku v. City of Hermosa Beach et al. started after an IA investigation into citizen complaint.  After the investigation, the local police chief decided to enter a note into the officer’s evaluation log about the incident.  The officer then requested an administrative appeal and the department denied the request.  The officer filed a claim in superior court alleging the city violated POBR by denying him the administrative appeal and not allowing him access to the evaluation log.

     The Court found the city’s action of entering the comment in the evaluation log did not constitute a punitive action under Government Code section 3304. The Court stated there was no discipline imposed nor was there a written warning that future discipline would occur if the behavior continued.  Rather, the court viewed the comment as a reminder when it came time for the officer’s performance review.  The department claimed supervisors use log notes assist to complete employees’ annual performance reviews and to facilitate communication between supervisors and subordinates.  Indeed, the court stressed there was no evidence the evaluation log was used for any purpose other than preparing performance evaluations.  The court also decided the officer did not show sufficient facts to prove he was denied access to the comments because he signed a document indicated he knew the charge was sustained.

Mastagni Law Celebrates Mastagni Law Art Competition Winner

Mastagni Law congratulates Riley Lopez for winning the Mastagni Law Art Competition.  The Mastagni Law Art Competition invites middle and high school students to celebrate the contributions of public safety professionals.

This year's competition is a partnership with the Firefighters Burn Institute and the theme is "Honoring the Heroism of First Responders."  The winning submission will be featured in a public showing during Sacramento's Second Saturday Art Walk on June 9, 2012 from 6:00 p.m. to 8:00 p.m. at 1901 I Street, Sacramento, California.  The event is open to the public and all proceeds benefit the Firefighters Burn Institute.

The competition winner says his artwork is "thanking first responders for being there in our time of need, and not leaving until they have made sure everyone is safe and sound. We know the hardships and struggles they face on a daily basis.  They do too, yet still give their time to help people."

Deputy Sheriff Sues To Stop Anti-Military Discrimination

Placer County deputy sheriff Kevin Brady filed a lawsuit in federal court Monday to stop the Placer County Sheriff's Department from discriminating against military veterans. In a press release, the Placer County Deputy Sheriffs' Association explained that "following an eighteen month tour of duty in Operation Enduring Freedom, Army Sergeant Kevin Brady returned to his job as a Deputy Sheriff for the County of Placer. He was surprised to find that, instead of rewarding his service to his Country, the County was holding him back from being eligible to apply for specialty assignments and promotions in violation of federal law."

Veterans' post-service employment rights are guaranteed by the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and California state law. The case seeks to protect all military veterans working at the Sheriff's Department.

Congress enacted USERRA to encourage military service and prevent employers from penalizing veterans for responding to the call of duty. USERRA requires employers to treat returning veterans as if they had been present and continuously working at their civilian jobs for the duration of their absence in military service.

Under USERRA, employees are entitled to more than merely their old job back. They are entitled to all the benefits, positions, and promotions they would have achieved if they had never left. As the U.S. Supreme court stated, the veteran "does not step back on the [career] escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war." The employee does not have to demonstrate that a promotion or new position was guaranteed to him.  He only needs to show that it is reasonable to believe if he had been present at his civilian job instead of away serving his country, he probably would have been given the new position. 

USERRA prohibits employers from saying a service member is “not qualified” for the new position. Instead, it is the employer’s duty to make all reasonable efforts to train or otherwise qualify the employee for their new position. Mastagni Law attorneys David E. Mastagni and BJ Pierce represent Deputy Brady in the matter. See the CBS news video here.

Crime Victims, Deputies Join Forces Against El Dorado Sheriff's Blanket Rotational Policy

Crime Victims United of California and the El Dorado County Deputy Sheriffs' Association joined forces at a press conference Tuesday to protest El Dorado Sheriff John D'Agostini for putting the public in danger by shifting experienced detectives out of the investigations unit.

In a press release, the DSA expressed "grave concerns" that "Sheriff D’Agostini’s new rotational policy on detective positions will undermine the department’s ability to successfully investigate cases and bring justice to victims and their families." DSA President Todd Crawford noted "Our department had a rotational detective policy before,” but had "over 40 unsolved homicides" under that policy.

CVUC echoed the DSA's concerns, expressing "outrage Sheriff D’Agostini has chosen to risk the public safety of the Citizens of El Dorado County" with the policy change.  CVUC's press release also announced "Crime Victims United stands with the men and women of the El Dorado County Deputy Sheriffs’ Association" on the issue.

News outlets throughout Northern California covered the press conference, including the Modesto Bee, KCRA, the Sacramento Bee, and CBS13.  According to news reports, the policy "is a move victims say will hurt victims who have already suffered enough."

The DSA has filed a grievance over the unilateral policy change.  Mastagni Law attorneys David E. Mastagni and  BJ Pierce represents the DSA in the matter.  Follow updates to this story by subscribing to the California Public Safety Labor Blog.

Watch the news video here.

PERB: Management Cannot Unilaterally Adopt "Zero Tolerance" Drug Testing

In Fairfield-Suisun Unified School District (May 8, 2012) PERB Dec. No. 2262, the Public Employment Relations Board ruled management must give advance notice and an opportunity to meet and confer before adopting a "zero tolerance" drug policy.  The case started when an employee refused to disrobe in front of a technician during a drug test.  The employer responded by terminating him, citing their "zero tolerance" drug testing policy.  The union then filed an unfair labor practice charge with PERB.

The "zero tolerance" policy had been on the books since 1996, but had never been used before.  The union never received advance notice of the policy or an opportunity to meet and confer.  Management claimed the union waived meet and confer because so much time had passed since it was implemented.  To support their claim, the District provided evidence a union representative received a copy of the District's agenda packet describing the policy back in 1996.  PERB, however, rejected the District's argument, finding insufficient evidence the union knew about the policy's details.

The District also claimed federal law required it to have a "zero tolerance" policy on drug testing.  However, PERB examined the specific federal regulations and found that federal law did not require termination or the specific details of the testing procedure.  As a result, PERB found the contours of the policy were subject to meet and confer ordered the District to put the employee back to work and to give him back pay.