PERB Clarifies Rules for Fair Share Fee Payers

In Office & Professional Employees International Union, Local 29, AFL-CIO, (February 7, 2012) PERB Dec. No. 2236-M, the Public Employment Relations Board decided a union cannot affirmatively misrepresent that full union membership was required as a condition of employment. The employee claimed the union sent her letters and information packets which stated she had to be a member in good standing with the union as a condition of employment and if she did not she would be terminated. She claimed she only learned later about her option to pay fair share fees.

The Board noted MMBA section 3502 grants covered employees the right to participate in the activities of employee organizations and the express right to refrain from doing so. Under an agency shop agreement the employee need not join the union or pay dues but is required to pay a fair share fee for representation activities. To be constitutionally valid an agency fee collection system must meet 3 requirements: (1) it must provide for the objection or challenge of agency fees before their collection; (2) it must provided nonmembers with adequate information about the basis for the agency fee; and (3) it must provide for a reasonably prompt decision regarding any challenge by an impartial decision maker. The Board found because the employee did not receive notice which “was reasonably calculated” to inform her of her right to pay the agency fees in lieu of becoming a member, a complaint should be issued in the matter.

Ninth Circuit Finds for Former OCSO Lieutenant on Political Retaliation Claims

In Hunt v. County of Orange (February 13, 2012) 2012 WL 432297, the Ninth Circuit found the Orange County Sheriff’s Department violated a lieutenant’s constitutional rights by demoting him for allegedly bringing discredit to the Department after he ran against former Orange County Sheriff Mike Carona.

A lieutenant with the Orange County Sheriff's Department ran for sheriff against the incumbent sheriff and lost. During the election the lieutenant made statements criticizing the incumbent's performance and accused the sheriff of corruption. After the election was over, the Department placed the lieutenant on paid administrative leave pending an investigation into his speech and conduct during the campaign and gave him notice of demotion for violation of department rules and for bringing discredit upon the department. The lieutenant then filed a claim against Carona alleging violations of his First and Fourteenth Amendment rights.

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.

To decide whether this exception applied in this case, the court evaluated whether "the hiring authority can demonstrate party affiliation is an appropriate requirement for the effective performance of the public office involved." The court also noted "if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield.”

The court found political considerations were not appropriate requirements for the lieutenant's job and found the lieutenant did not fall within the policymaker liability exception. However, the court found the sheriff had qualified immunity since the sheriff could have reasonably, but mistakenly, believed the employee’s demotion was not unconstitutional.

Court of Appeal Limits Former Officers' POBR Rights

In a carefully tailored decision, the Court of Appeal in Barber v. California Dept. of Corrections and Rehabilitation (Cal. Ct. App., Feb. 15, 2012) 12 Cal. Daily Op. Serv. 1936, held POBR does not entitle a former peace officer to review years of personnel records.  The decision emphasized the plaintiff made a "broad request" to review his personnel records only after he had been terminated.

The plaintiff was an employee with the California Department of Corrections and Rehabilitation (CDCR) until being terminated in April of 2009. Six months after his termination, the plaintiff requested copies of his CDCR personnel records. CDCR denied the request and the plaintiff filed a petition for writ of mandamus and a complaint for declaratory and injunctive relief seeking copies of the records under POBR.  The superior court denied plaintiff’s requests, and plaintiff appealed.

Government Code section 3306.5, part of POBR, states that an employer of public safety officers shall permit a requesting officer to view or copy personnel files that have or are being used to determine that officer’s qualifications for benefits or disciplinary action.  The Court of Appeal found the right to inspect records only applied to public safety officers and plaintiff was no longer a public safety officer after his termination went into effect.  Because plaintiff made his request for records well after being terminated from CDCR, he was not entitled to access the records. The court, therefore, affirmed the ruling of the lower court and awarded CDCR its costs on appeal.

PERB Files Lawsuit to Block San Diego Pension Initiative

On February 14, 2012, the Public Employment Relations Board filed a lawsuit in San Diego Superior Court to block the so-called "Comprehensive Pension Reform Initiative for San Diego."  PERB found the City put the initiative on the ballot without meeting and conferring with labor organizations as required by the MMBA.  PERB's lawsuit follows a decision to grant injunctive relief and issue a complaint after the San Diego Municipal Employees Association filed an unfair labor practice charge. A copy of the complaint/writ petition is available here.

PERB Moves to Stop San Diego Pension Initiative, Issues Complaint Against City

On February 10, 2012, the Public Employment Relations Board granted a request for injunctive relief to stop the so-called "Comprehensive Pension Reform Initiative for San Diego."  PERB also directed its General Counsel to "immediately initiate an action for appropriate injunctive and writ relief in San Diego Superior Court."  A copy of PERB's letter granting injunctive relief and complaint is available here.

The initiative seeks to replace defined benefits pension for most city workers with a 401(k) and reduce public safety benefits.  The initiative would also cap city payroll for five years and remove charter provisions requiring employee approval to change pension benefits.  PERB's Complaint alleges the city council placed the initiative on the June 2012 ballot without satisfying its duty to meet and confer, violating the Meyers-Milias-Brown Act.

NBC Bay Area: San Jose Pension Numbers "Not Based On Reality"

The Bay Area affiliate of NBC News recently exposed the City of San Jose's "numbers game" on pension costs.  The report reveals "city leaders gave out bad information" that grossly inflates projected pension costs even though "the mayor was told not to use that number."  The report notes the city is playing "quite the numbers game" in its efforts to steal officers' retirement security.  See the report here.

Court of Appeal: Names of Police Officers Involved in Critical Incidents Not Always Confidential

In Long Beach Police Officers' Association v. City of Long Beach, (February 7, 2012) the Second District Court of Appeal ruled the city must release the names of police officers involved in officer-involved shootings.  In reaching its decision, the Court disagreed with the arguments of the POA and the city against disclosure, but declined to issue a blanket rule, noting public agencies have to consider disclosure on a case-by-case basis.

The case arose after the Los Angeles Times sent a public records request to the city requesting the names of all police officers involved in officer-involved shootings for a five-year time period.  After the city initially agreed to comply, the POA sued the city and the city backed down.  Then the LA times sued the city.  After initially blocking the release, the superior court ordered the city to release the names and the city and POA appealed.

The Court held the names of officers were not confidential personnel records protected from disclosure by the Penal Code.  The Court also decided not to apply the so-called "catch-all" exception to the public records act.  The catch-all exception applies whenever "the public interest served by withholding the records clearly outweighs the public interest served by disclosure."  The POA argued the exception applied because of threats to officer safety.  The Court, however, held "generalized safety concerns" are not enough to trigger the exception, but noted  "in certain circumstances protecting the anonymity of a peace officer may outweigh the public interest in disclosure."

Small California Town Lapses on Workers' Comp Insurance, Briefly Shuts Down Police Department

The town of Isleton, California shut down its police department for about a week in late January after it lost its workers' compensation insurance for lack of payment.  During the shutdown, the Sacramento County Sheriff's Department assumed responsibility for high priority calls in the area.  The department was back up and running after negotiating a policy with a new carrier.

Court of Appeal Upholds Police Officer's Termination

In an unpublished opinion, Lake v. City of Hercules (January 26, 2012) 2012 WL 243203, the Court of Appeal upheld a police officer's termination even though the city failed to call a key witness against her.

The plaintiff, a police officer with the City of Hercules, was assigned to an interagency narcotics task force. She told the Chief of Police she needed an assault rifle as part of those responsibilities.   However, the Chief believed she had lied to him to obtain his approval for the purchase of the rifle and she was terminated for dishonesty. The employee appealed the determination to superior court.

At trial, the officer claimed she was denied a fair administrative hearing since the City failed to call its main investigator as a witness. However, the Court found the City was not required to call the investigator as it did not rely solely on the report to prove its case.  As a result, the Court found sufficient evidence to show the employee was dishonest and upheld the termination.