Thursday, April 26, 2012

Paper: Stockton City Council Received Illegal Cash from City While Cutting Public Safety

The Stockton Record reports that City of Stockton mayors and city council members have been receiving illegal payouts for years in violation of the city charter.  The paper reports that although the city charter prohibits retirement and death benefits for elected councilmembers, at least 16 current and former mayors and councilmembers had payments made to their CalPERS accounts by the City.

Wednesday, April 25, 2012

PERB: Peace Officers Can Choose Mixed Unit or Peace Officers-only Unit

In SEIU Local 1021 v. County of Calaveras (Calaveras County Public Safety Employees Association) (April 18, 2012) PERB Decision No. 2252-M, PERB held that "while MMBA section 3508(a) grants peace officers the affirmative right to join or participate in peace-officer only units, nothing in that section requires peace officers to exercise this right nor prohibits them from being in mixed units if they so choose."

Government Code section 3508(a) allows peace officers to select representation in a peace officer-only bargaining unit.  It reads in part, "the governing body may not prohibit the right of its employees who are full-time "peace officers"... to join or participate in employee organizations which are composed solely of these peace officers."  In Calaveras County, county rules went further and required "Peace officers and limited term peace officers must be represented in separate units composed solely of such peace officers."

The Calaveras County Public Safety Employees Association defended their right to have a mixed unit.  CCPSEA is like many public safety labor unions that include both peace officers and other public safety professionals like correctional officers, dispatchers, evidence technicians, and code enforcement officers.  PERB decided the local rules prohibiting mixed units violated the MMBA.  The decision clarifies that peace officers have the right to have mixed units if they want to, while preserving their right to have peace officer-only units if they so choose.

Tuesday, April 17, 2012

Court of Appeal: Fair Share Fee Payers Have No Right to Vote in Union Elections

In Williams v. PERB (B233494, April 13, 2012.), the Court of Appeal affirmed a previous PERB decision finding that fair share fee payers have no right to vote in union elections.

Members of the bargaining unit represented by the California Faculty Association at California State University, Northridge (CSUN) brought an unfair practice charge alleging that their state and federal rights were violated. The parties who filed the charge were fair share fee payers who allleged the union improperly denied them the right to vote on an furlough proposal. Instead, only members of the union were allowed to vote. PERB dismissed the charge on the ground that PERB has previously held that unions can exclude non-members from voting so long as the union provides non-members an opportunity to communicate their views.

The fee payers then sought review of PERB’s decision not to issue a complaint under the standards articulated in International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 271 (Fire Fighters).)  In Fire Fighters, the Supreme Court held that PERB’s decision not to issue a complaint is only reviewable in three narrow situations: 1) to determine whether PERB’s decision violates a constitutional right, 2) exceeds a specific grant of authority, or 3) is based on an erroneous statutory construction.

The court first addressed whether the charging parties’ constitutional rights were violated because they were required to join the union in order to vote. The court found no authority that there is a constitutional right to participate in a union vote and declined to find that such right exists. Next, the court addressed whether PERB’s decision was clearly erroneous. After analyzing PERB and NLRB precedent, the Court concluded that under the circumstances here—where the union solicited the views of nonmembers—PERB’s determination that there was no unfair practice was not clearly erroneous.

Monday, April 16, 2012

Court Rules Stockton POA Likely to Succeed in Contract Impairment Case

The Stockton Police Officers Association returned to court Friday for a hearing on its application for a preliminary injunction requiring the City to cash out paid leave for officers retiring or leaving the City for new jobs. At the hearing, San Joaquin Superior Court Judge Lesley Holland found that the POA was likely to succeed on the merits of its claim that the City of Stockton unlawfully impaired its contract. Judge Holland ultimately denied the POA’s application on the grounds that the case was stayed while the Third District Court of Appeals considered an appeal of the court’s ruling on the POA’s special motion to strike two of the causes of action alleged in the City’s cross-complaint.  Mastagni Law attorneys David E. MastagniAlan DavisIsaac S. Stevens and BJ Pierce represent the Stockton POA in the matter.

Tuesday, April 3, 2012

State Controller Launches Audit of City of Stockton

KCRA News and the Stockton Record report that State Controller John Chiang has launched a financial audit of the City of Stockton's financial records.  In a four-page letter dated April 2, 2012, Chiang announced he has discovered "several discrepancies" in the City's financial reports that "raise questions" about the reliability of the City's reports.

The audit comes on the heels of the Stockton POA's demand the City provide transparent evidence of its financial condition.  The Stockton Record reports, "Sacramento attorney David Mastagni, who represents the Stockton Police Officers Association, said he has argued over and over that the city doesn't have adequate financial figures in the union's ongoing litigation... "I think this is very helpful," he said. "Finally, some people outside the control of the city and its attorneys are taking a look into what's happening."

Monday, April 2, 2012

US Supreme Court Approves Strip-Searches Even For Suspects Arrested for Minor Offenses

On April 2, 2012, the United States Supreme Court held that the Constitution permits correctional facilities to conduct blanket strip searches on all arrestees entering general population, even those arrested only for minor offenses.   Florence v. Bd. of Chosen Freeholders of Cty. of Burlington et al. (2012) No. 10-945, slip. op., settles a division among lower courts about whether public safety professionals needed "reasonable suspicion" before strip-searching nonindictable offenders.

The case arose after Albert Florence was arrested in 2003 on a bench warrant related to his failure to pay a fine or appear at an enforcement hearing.  Arresting officers took him to a county correctional facility.  At the correctional facility he was required to shower with a delousing agent while officers checked him for scars, marks, gang tattoos and contraband.  Officers also visually inspected his body openings.  After six days he was transferred to a second facility with a similar procedures.  The procedure was the same for all arrestees and no one touched Florence during the process.  Florence later filed a federal civil rights lawsuit claiming the search was unconstitutional because he was arrested for a minor crime.

The Court rejected Florence's argument.  The Court's decision emphasized that "Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what detainees may carry on their bodies."  The Court found ample evidence that suspects arrested for even minor crimes carry contraband into facilities, citing evidence from California where "San Francisco Officers have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance, and shoplifting."

Accordingly, the Court concluded the reasons a person is arrested has little bearing on whether intake procedures are constitutional.  Instead, the Court found the policy was reasonable and that courts should defer to public safety professionals to make the decision about when and how to search inmates.

Stockton Selects Noted Bankruptcy Mediator

Reuters reports the City of Stockton and its creditors selected Ralph Mabey to mediate pre-bankruptcy negotiations.  Mabey, a former federal bankruptcy judge, also serves a court-appointed mediator in the Lehman Brothers Holdings Inc bankruptcy.

Pre-bankruptcy mediation is required by state law before the city can declare bankruptcy.  The article reports the creditors participating in the mediation include CalPERS, Wells Fargo, the U.S. Housing and Urban Development Department and the Stockton Police Officers' Association.  David E. Mastagni, Alan Davis, Isaac S. Stevens and BJ Pierce represent the Stockton POA in the matter.