Court: Key Parts of San Jose Measure B Unconsitutional

On December 20, 2013, the Santa Clara County Superior Court overturned the heart of Measure B, San Jose's attack on employees' pensions.  In doing so, the court followed the Monterey and Los Angeles superior court which have overturned similar attacks on employees' vested rights.

The court overturned part of Measure B that shifted financial responsibility for unfunded liabilities from the City to employees.  That section would have dramatically increased employees' contributions into the system.  The court found that employees had a vested right to have the City pay that portion.  As a result, Measure B unconstitutionally impaired their vested rights.

The court also overturned a provision that allowed the City council to suspend retirement Cost-Of-Living-Adjustments (COLAs) by "declaring a fiscal emergency."  COLAs are not always vested rights, but the court found that retirees in this system had a vested right to COLAs.  The court overturned this section, noting it is not enough for a city council to declare an emergency.  Instead, there has to really be an emergency.  Further, an impairment to a vested right on emergency grounds has to be temporary.  Since this section did not require a real emergency and impaired vested rights in a permanent way, the court ruled it was unconstitutional.

The court upheld other portions of Measure B related to disability retirement, supplemental payments to retirees, retiree medical, and wage cuts.  The court also found "that the Measure B sections at issue in this case can proceed as to new employees."

Trust Counsel: California Pensions More Secure Than Detroit's

After a Michigan bankruptcy judge opened the door to cutting public employees' pensions as part of the City of Detroit's bankruptcy, some observers suggested the ruling opens the door to similar tactics in California. But as Harvey Leiderman, the well-regarded trust counsel to CalPERS and other retirement systems, recently explained, California's pensions are very different from - and more secure than - Detroit's.

Leiderman explained Michigan's pension system hinges on a contractual relationship between two groups: retirees and employers, making it more vulnerable to impairment in bankruptcy.  That's because bankruptcy courts (unlike employers themselves) have special powers to impair contracts.  California's system, however, has three groups: retirees, employers, and pension trusts, such as CalPERS.

Leiderman explains that California's system includes legal duties between employers and pensions trusts on the one hand, and pension trusts and retirees on the other.  These duties are the product of state laws, not contracts.  He used this chart to illustrate the relationship:

Thus, even without contracts, California public employers have a duty to pay CalPERS and CalPERS has a duty to pay retirees.  Read the full article here.

Poll Shows Californians Oppose Reed Initiative

A recently survey conducted December 5-9, 2013 shows Californians coming out against the Reed Initiative by a margin of 49% to 35%.  The poll shows an overwhelming majority of Californians oppose efforts to eliminate public servants' pensions.  Specifically, the poll noted that 54% of California strongly oppose "Eliminating Police, Firefighters, and Other Public Employees Vested Pension Benefits."  Read the report on the new poll here.

Ninth Circuit: Reporting Safety Concerns to Supervisor May Not Be Protected by First Amendment

In Hagen v. City of Eugene (9th Cir. 12-35492 12/3/13), the Court of Appeals held when an employee makes statements within the chain of command, regarding an issue of employment, and has a duty to make those statements, they do not first amendment protections.

Officer Hagen was a K-9 Officer who worked on the SWAT team. Over ten years, the SWAT team had 4 accidental discharges, two of which injured a fellow officer. Ofc. Hagen brought up his concerns about safety several times to his supervisor, Sgt. Eichorn, but no one told him of any proposed remedies. When Ofc. Hagen continued to press the issue, Sgt. Eichorn became irritated and annoyed. Then, the Department suspended the K-9 team two months and Ofc. Hagen was removed from the K-9 team permanently in retaliation.

Ofc. Hagen filed lawsuit, saying the Department retaliated against him for an exercise of his First Amendment right to free speech. But, the Ninth Circuit said when Hagen reported the Department safety concerns, he was acting as an employee, not a private citizen, and therefore had no First Amendment protections. The court based its decision on the Department being a highly hierarchical employment setting, and said his statements were within the chain of command concerning his employment and safety. Furthermore, Hagen was required to report all safety concerns under Human Resources Policies and Procedures. Therefore, Hagen’s speech was made within the employment setting, pursuant to a duty to do so, and was not protected by the first amendment.

This case was just about First Amendment protection.  Employees have additional protections when they concertedly complain or engage with their union about workplace issues.

Stockton POA President, Officer Vindicated of Insubordination Charges

As reported in LRIS, an arbitrator reversed the suspensions of Stockton's POA president and a board member after the City retaliated against them for participating in a POA charitable fundraiser and ordered full back pay.  The decision vindicates the officers and makes clear they did nothing wrong.  Indeed, according to the Stockton Record, "the dispute ended with an arbitrator finding that [the chief] mishandled the situation."

In the lead up to Stockton's bankruptcy, the City and the POA engaged in several legal battles, including the City’s unconstitutional attempt to void the POA contract through a declaration of fiscal emergency.  As the city manager tried to discredit the POA and blunt their public relations efforts, his chief of police claimed POA members couldn't do charitable work because it violated the Department's outside employment policy. 

Then he issued a vague order to "SPOA members" to not "directly or indirectly" participate in the selling/bartending of alcohol. The POA fought back and went forward with a charitable fundraiser, having members' families sell beer instead of the officers.  Then, after the POA made a vote of no confidence against the chief, he suspended SPOA President Stephen Leonesio and Director Mark McLaughlin for insubordination based on their participation in the charitable fundraiser.

The arbitrator ruled the suspensions unjustified.  The arbitrator ruled the chief's order was vague and confusing.  The order did not spell out what counted as selling/bartending and what it could even mean to "indirectly" bartend.  The arbitrator found that "they attempted to comply with the order as they reasonably understood it based on Leonesio’s discussions with Ulring and the language of the order itself.  It bears repeating that, before the event began, SPOA recruited family members and friends to staff the booths and sell alcohol in the place of SPOA members."

The order also didn't make sense because the POA had served alcohol at several charitable events in the past and "In fact, [the chief] himself has served and purchased alcohol at such events."  “If [the chief] truly had the concerns, … he should have said so in clear and unambiguous language,” the arbitrator said. “Instead, he issued an ambiguous and confusing order."  Since the order was unclear and the officers made a reasonable effort to comply with it, they should never have been suspended.

“The taint the city tried to put on their careers has been erased,” David Mastagni said. “The city insisted on going forward with the discipline on these two guys. … It was certainly personal on the city’s end.”  Mastagni attorneys David E. Mastagni and Jeffrey R. A. Edwards represented Officers Leonesio and McLaughlin.

Court of Appeal: POBR Violation Voids Dishonesty Charge

In Ruiz v. City of Bell Gardens (2013) Case No. B244395, the Court of Appeal affirmed a superior court ruling voiding a dishonesty allegation because of a POBR violation.  Officer Ruiz was on administrative leave pending the outcome of an IA investigation.  When his department put him on administrative leave, it ordered him not to enter any city property not open to the general public.  Then, a lieutenant came across him in police trailer not open to the general public and asked him about why he was there.  The court found that the lieutenant's questions constituted an interrogation under POBR.  Since the department did not give him notice of the interrogation in advance, it violated POBR and Officer Ruiz statements were suppressed.  Without his statements, there was no basis to support the dishonesty allegation.

Mastagni Holstedt, A.P.C. Announces the Addition of New Associate, John H. Bakhit, Esq.

Mastagni Holstedt A.P.C. is pleased to announce the addition of John H. Bakhit as the newest associate attorney with the firm. Mr. Bakhit works in the firm’s Labor and Employment Department. He received his Juris Doctorate from Santa Clara University School of Law, and his Bachelor of Arts degree from Columbia College, where he graduated magna cum laude.

Before entering law school Mr. Bakhit served as an Oakland Police Officer working Patrol and Narcotics. During law school, Mr. Bakhit was awarded the Law Faculty Scholarship and the Certificate for Excellence in Oral Advocacy. He also completed an internship with the Santa Clara County District Attorney’s Office, where he was assigned to the Gang Unit. As a practicing attorney, Mr. Bakhit has represented hundreds of peace officers in administrative and criminal cases. He has also negotiated complex employment contracts. Mr. Bakhit is admitted to practice in all state courts in California, as well as the Central and Southern Districts of the U.S. District Court, California.

Founding partner, David P. Mastagni stated, “We are pleased to welcome Bakhit to our firm as our Southern California lead attorney; his experience will allow us to further service the firm’s regional and statewide clients.”

With more than 55 attorneys and negotiators, Mastagni Holstedt A.P.C. has the largest law practice representing law enforcement and firefighters in California and the U.S. The firm is dedicated to representing clients in the protection and advancement of public safety officers and their rights. The Sacramento-based firm has gained state and national recognition in the area of labor and employment as an AV-rated preeminent law firm by Martindale Hubbell, and has been listed among the top law firms in the Sacramento Business Journal, Forbes Magazine and Fortune Magazine.

Governor Vetoes Union Rep-Member Privilege, Signs Bills on Brady List Protections, Bargaining, Release Time

The Governor took action on several bills affecting public safety labor rights.  The Governor vetoed AB 729, which would have protected labor leaders from having to testify about communications with members.  In his veto message, the Governor wrote, "I don't believe it is appropriate to put communications with a union agent on equal footing with communications with one's spouse, priest, physician or attorney.  Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations."  The Governor's veto underscores the importance of connecting employees with a union lawyer on the onset of disciplinary investigations to ensure privileged communications.

The Governor also vetoed AB 1373 which would have extended the statute of limitations for survivors of public safety officers to file for death benefits related to tuberculosis, cancer, and blood-borne diseases. The bill was co-sponsored by CPF and PORAC.

The Governor signed AB 313 which amended POBR to prohibit disciplining peace officers solely because they are placed on a Brady list.  The law does not prohibit employers from disciplining peace officers for the underlying conduct which may have caused them to be put on a Brady list or considering the Brady list for determining how much discipline someone gets.  PORAC sponsored the bill. Loni Hancock (D-Berkeley), Donnelly (R-Barstow), Bill Monning (D-Santa Cruz), Tom Ammiano (D-San Francisco), and Mark Leno (D-San Francisco) voted against the bill.

The Governor also signed AB 537 which requires agencies to approve tentative agreements within 30 days, preventing them from delaying final ratification of contracts after the parties have TA'd at the table.  The bill also requires that if an MOU has an arbitration clause, the arbitrator- not a court or the agency- must decide if the procedural requirements for arbitration are met.

The Governor also signed AB 1181 which amended the MMBA to require employers give labor leaders reasonable time off for testifying at personnel hearings, PERB hearings, and bargaining. The MMBA already required reasonable time off for meeting and conferring.

Court: "Liking" Sheriff Candidate on Facebook Protected by First Amendment

In Bland v. Roberts (4th Cir., Sept. 18, 2013, 12-1671) 2013 WL 5228033, the federal Court of Appeals for the Fourth Circuit ruled that the act of "liking" a candidate for Sheriff on Facebook by a deputy sheriff is protected speech under the First Amendment. As a result, it is unlawful for a sheriff to retaliated against an employee for "liking" his opponent.

The case started when sheriff’s office employees brought a civil rights action alleging that the sheriff retaliated against them by reappointing them because of their support of his electoral opponent. Two of the employees expressed support for the Sheriff’s opponent by “liking” his Facebook page and posting comments of encouragement for his upcoming election. After the sheriff was reelected, he refused to reappoint the employees to their positions as sheriffs deputies at the jail, a typical process in that jurisdiction.

 They sued, claiming that the sheriff violated their First Amendment rights to free association and free speech. Initially, the District Court sided with the sheriff, finding merely “liking” a Facebook page is insufficient speech to merit constitutional protection, but the Court of Appeals reversed.

The Court of Appeal said when one “likes” a political campaign's Facebook page, the user becomes associated with the campaign. A photo of the user is posted to the campaign’s profile, a link is provided on the users profile that others can use to access with the campaign’s page, and the “thumbs up” icon communicates the user’s support. The Court said the act of “liking” the page is like displaying a political sign in one’s front yard, which the Supreme court has held as substantive speech.

Mastagni Firm Wins Landmark Decision on Vested Rights in Los Angeles

The Mastagni Firm won a landmark decision from the Los Angeles Superior Court invalidating the City of Los Angeles’ attempt to cap employees’ retiree medical benefits.   In an order issued last week, the court held that the cap impaired Deputy City Attorneys’ vested rights to a retiree medical subsidy. The court granted LACAA’s petition for a writ directing the City to compute and provide the health insurance subsidy without regard to the freeze ordinance. The impact of this decision has been estimated at approximately $71,000,000.  The ruling follows the Mastagni Firm’s similar victories in Pacific Grove and Stockton defending employees’ constitutionally protected vested rights against contract impairments.

In 1973, the City enacted a retiree medical premium subsidy to provide its retirees no-cost or low-cost health insurance.  Over the years, the City amended the program to ensure the subsidy kept pace with increases in retiree medical costs. In 2011, the City froze the retiree medical subsidy at $1,190 per month, claiming employees did not have a vested right to increases and that the savings were needed to address the City’s supposed “fiscal emergency.”

The Los Angeles City Attorneys’ Association (“LACAA”) sought a writ of mandate to prevent the City from enforcing the freeze ordinance and requiring the City to set the subsidy without reference to the freeze. The City denied the existence of any vested right, asserting that it had the legislative authority to make whatever changes to retirement benefits it wanted.   

The court ruled the freeze unconstitutionally impaired a vested right to receive the subsidy. The court found that the City’s Administrative Code “evidence[d] a clear legislative intent to create private contractual rights in the provision of a medical subsidy that covers all or part of the cost of an employee’s medical plan.” The court further found the Administrative Code “create[d] a vested right in a medical subsidy that covers part or all of the costs of a medical plan to eligible employees.”  The court rejected the City’s defense, ruling the “reservation of rights” did not defeat the finding.

To survive constitutional scrutiny, any changes in pension benefits must be materially related to the theory of a pension system, and any change that results in disadvantages to the affected employees must be accompanied by comparable new advantages.

The court found that the freeze resulted in a disadvantage to LACAA’s members because “a fixed benefit system is disadvantageous when compared to fluctuating or fluid benefit system.”  The court then found the freeze ordinance “merely establishes a disadvantage – a frozen subsidy amount of $1,190 – and fails to establish any comparable new advantages.” Rejecting the City’s claim that the disadvantages resulting from the freeze ordinance were offset by the subsidy the City created for employees whose unions agreed to increase their pension contributions, the court noted that “getting the same benefit as before, at the expense of contributing an extra 4%, hardly constitutes a comparable new advantage.”

The court further found that the freeze ordinance was not materially related to the theory of the pension system.  According to the court, “because the apparent goal of the freeze ordinance is to resolve the City’s pending fiscal emergency, the ordinance is not materially related to the theory of a pension/medical subsidy system and its operation.” The court was also troubled that the freeze was not a temporary measure, stating “it is a permanent and progressively more onerous impairment of a vested right to a medical premium subsidy.”

The court affirmed that retirement benefits are constitutionally protected, and cannot be impaired to address fiscal woes.  In these difficult economic times, employee organizations must be vigilant in protecting the benefits their members earned through years of public service. We strongly urge every employee organization to promptly consult qualified legal counsel to determine the legality of any attempt to cut employees’ retirement benefits.

The Los Angeles City Attorneys' Association is the exclusive employee organization representing over 400 attorneys in the City of Los Angeles’ Office of the City Attorney.  Mastagni attorneys David E. Mastagni and Isaac S. Stevens represented LACAA in this litigation.

British Firefighters Poised to Strike Over Retirement Age Increase

Firefighters in England and Wales announced today they plan a 4-hour strike to protest a proposal to raise their retirement age to 60 because raising the retirement age jeopardizes public safety.  The firefighters' labor union, the Fire Brigades Union, explained "It is ludicrous to expect firefighters to fight fires and rescue families in their late 50s - the lives of the general public and firefighters themselves will be endangered. None of us want a strike, but we cannot compromise on public and firefighter safety.” It will be the first nationwide strike of firefighters in that country in a decade.

Governor Signs AB 1181 to Expand MMBA Rights

On September 9, 2013, Governor Brown signed AB 1181, expanding labor associations' rights under the Meyers-Milias-Brown Act.  AB 1811 requires employers to give labor leaders reasonable time off work to participate in proceedings before PERB and testifying before personnel commissions.  Associations have to give reasonable notice.  This bill expands on associations' pre-existing right to reasonable time off for negotiations.

Court Clarifies Peace Officers' First Amendment Rights

In Dahlia v. Rodriguez the Ninth Circuit Court of Appeals expanded first amendment protections for peace officers. The court found speech made outside of the chain of command is protected by the First Amendment because it is made in an officer's capacity as  private citizen.  The case comes after a number of cases limiting public employees' free speech on topics related to their employment.

Officer Dahlia witnessed complained about alleged inappropriate behavior by other fellow officer to his lieutenant who allegedly threatened him, and other officers to keep quiet about the matter. Dahlia alleged he was warned not to be “a cheese eating rat”. Shortly afterward, he was interviewed in an IA investigation and reported these incidents to his Association president. He also repeated his concerns to a different police department investigating the same incident. Then, the Department put Dahlia w on administrative leave pending discipline. 

The court examined each of Dahlia’s actions to decide whether they were protected by the First Amendment or employee speech that is not protected. The Court said reporting to his supervisor was a part of his job duties as a detective investigating a crime and not protected by the First Amendment. The Court said the IA interview was more complicated because if Dahlia disobeyed orders by going to the IA interview, then he acted as a private citizen. The Court said he acted in his capacity as a private citizen when he spoke to his Association president and when he spoke to a different police department.

The court also found Dahlia suffered an adverse employment action as a result of his speech. The threats he received from his supervisor to put him in jail were sufficient to be considered an adverse employment action. Plus, in this case, the administrative leave was considered a punitive action. The court found that loss of overtime, promotional, and experience opportunities made administrative leave an adverse employment action. As a result, the Court found the adverse action would violate the First Amendment.

AB 11 Increases Protections for Volunteer Firefighters. Reserve Peace Officers

Current state law requires employers with 50 or more employees to provide up to 14 days of temporary leave for volunteer firefighters for fire or law enforcement training.  AB 11 expands this to any employee who is a volunteer firefighter, or reserve peace officer, or emergency rescue personnel, and also expands the qualifying training to include fire, law enforcement or emergency rescue training.

Under the law, any volunteer firefighter or reserve peace officer who is fired, threatened with being fired, demoted, suspended, or otherwise discriminated against because they took time off for qualifying training is entitled to legal and equitable remedies including reinstatement and reimbursement for lost wages and benefits.

PORAC, CPF, Taxpayers Group Join to Stop Hidden Local Government Political Spending

Over the past few years, publicly-funded groups like the League of California Cities have spent more than $17 million in political campaigns.  Now the Legislature is debating Senate Bill 594 to shed light on this practice. According to Stop the Shellgame, a coalition of labor, taxpayers, and good government groups, the bill seeks to "open the books on millions of campaign dollars paid out by so-called “non-public funds” from taxpayer-financed non-profits, like the League of California Cities. It also strengthens state law to ensure that public dollars are not being diverted into a secret campaign war chest."  SB 594 is currently working its way through the Legislature.

PERB: No Duty to Bargain Over Retired Peace Officers' CCWs

In Riverside Sheriffs' Association v. County of Riverside (2013) 38 PERC ¶ 21, PERB ruled an employer does not have to meet and confer with a union about the CCW policy for retirees because retirees are not in the bargaining unit.  PERB reaffirmed that employers do not have to negotiate policies affecting retirees or other employees outside a union's bargaining unit unless those decisions affect current bargaining unit members in a significantly adverse way.

PERB: Sheriff’s Office Must Meet and Confer Over Peace Officer Background Evaluation Process for Correctional Officers

In County of Santa Clara (July 25, 2013) PERB Dec. No. 2321-M, the Public Employment Relations Board ruled a background evaluation process for transitioning correctional officers to correctional deputies with peace officer status is a mandatory subject of bargaining under most circumstances, overruling a contrary decision by PERB Office of General Counsel.

Santa Clara is one of the counties in California that employs non-peace officer correctional officers in county jails. In 2010, the Sheriff’s Office decided to transition to correctional deputies under Penal Code section 830.1(c) and had some discussions with the Santa Clara Correctional Peace Officers Association about the process for transitioning existing employees. Initially, the Sheriff’s Office claimed the process was voluntary and if officers wanted to stay as correctional officers they would be grandfathered in.

But then, the Sheriff’s Office told officers if they did not apply to be peace officers they would be denied promotions, lose assignments, and could lose their jobs. When the union would not concede on some of the details of the process, the Sheriff’s Office imposed, claiming they did not have to meet and confer with the union or go through impasse procedures.

PERB rejected the Sheriff’s Office’s claims. PERB ruled how the Sheriff’s Office would conduct the background evaluation process for becoming a peace officer was a mandatory subject of bargaining. PERB explained the evaluation process was different than a typical background process because it was for current employees.

PERB also made new law, distinguishing an earlier case about background checks. In Sutter County In-Home Supportive Services Public Authority (2007) PERB Dec. No. 1900-M, PERB said some background checks are not subject to meet and confer. In this case, PERB explained key elements of how to do a peace officer background process are discretionary. PERB also found the correctional officers already had a comprehensive background evaluation when they were first hired and that jails were fundamentally different than people’s homes.

Therefore, PERB ruled “that where an employer imposes on employees, who have already undergone a background evaluation as a condition of employment, a further such evaluation as a condition of continued assignment to the employee’s present position, the employer’s decision [is] within the scope of representation under the MMBA."

Mastagni attorney Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.

Judge: Unconstitutional for Detroit to Go After Pensions in Bankruptcy

On Friday, a Michigan trial court judge ruled it violates Michigan's state constitution for Detroit to go after vested pension rights in bankruptcy.  The ruling follows Detroit's rush to bankruptcy court which may affect up to 21,000 retirees.  The Court ruled Detroit violated state law because the state constitution prohibits the government from doing anything to impair pensions.

Article IX, section 24 of the state constitution of Michigan reads, "The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby."  The judge explained "The Governor is prohibited... from authorizing an emergency a manager ... to proceed under Chapter 9 in a manner which threatens to diminish or impair accrued pension benefits."  Accordingly, the judge ordered Detroit's emergency manager to withdraw Detroit's bankruptcy petition.  Read the Court's ruling here.

Some advocates for bankruptcy in Detroit claimed the City must go after pensions to declare bankruptcy and address other forms of long-term debt.  However, in a related case, the U.S. Bankruptcy Court for the Eastern District of California ruled the City of Stockton does not have to go after pensions to be eligible for bankruptcy.

Sacramento County Breaks Promise to Disabled Deputy Sheriff

Eric Henrikson is the lone survivor of a fatal sheriff's helicopter crash that killed two deputies eight years ago. According to former Sacramento Sheriff Lou Blanas, the day of the crash "was one of the worst days in my life and one of the worst days in the history of the Sheriff's Department."  At the time, the County promised to cover Henrikson for life.

Now, Sacramento County has cut off his disability and medical payments, according to Sacramento's ABC news affiliate, News 10.  According to Dep. Henrikson's attorney, David P. Mastagni, the County cut him off with no notice and "what the County is doing to this former deputy is not reflective of what the citizens of Sacramento County want for the deputy."

The News 10 reporters stated the County sued the helicopter manufacturer, Turbomeca, settling for $1.5 million and recently learned Henrikson allegedly settled his claims against Turbomeca for $26 million, noting "maybe he just had a better lawyer."  The reporters condemned the County for cutting off Dep. Henrikson, noting "a deal is a deal and its right here in black and white."

CalPERS Does It Again, Posts Double-Digit Investment Return

CalPERS posted impressive preliminary investment returns of 12.5% on its investment portfolio for the most recent fiscal year, including a 19% return on its stock market assets.  According to CalPERS, "When things got rough we didn’t panic. We stuck with our exposure to growth assets and applied the lessons we learned from the past. The numbers show us that our approach is working."

CalPERS impressive investment return follows up on last year's remarkable 20.7% gain and is well above the 7.5% the fund uses as a projection in its formula for the employers' share.  As it stands, CalPERS average annual investment return since 1988 is 8.5%, well above the level promoted by some critics.

CalPERS Posts Retiree Information Database Online

CalPERS announced it is posting a searchable database containing information about all retirees in the system.  The database includes retirees's names,  monthly gross warrant, base allowance, Cost of Living Adjustment, years of service, retirement date, benefit formula, final compensation and last employer.  CalPERS explains its making the database available online because these features are public records and many news outlets have requested the information.  You can view and search there database here starting later today.

Court Issues Injunction, Statement of Decision Affirming Constitutional Protection For Pensions

In May, the Monterey Superior Court overturned a voter initiative that tried to impair police officers' pensions.  The judge in that case, Pacific Grove Police Officers Association et al. v. City of Pacific Grove, has now issued a permanent injunction and statement of decision.  The injunction prohibits the city from "taking any action to implement, enforce, or give any effect" to the initiative.

The statement of decision explains the Court's ruling.  The Court explained the initiative violated the California Constitution by capping the City's contribution toward police officers' pensions.  "The employees were told that they were to receive retirement benefits under a CalPERS administered plan with an employee cost set at a fixed percentage of their salary.  The fluctuating portion would be borne by the employer."  The City violated the constitutional prohibition on impairment of contracts by effectively flipping those roles.

The Court stressed employees' vested rights.  The Court said, "the Court reiterates that what is vested in the employee is the right to earn a pension on the terms promised to him or her upon employment."  As a result, "no subsequent legislation by the city, whether by Charter amendment, ordinance, or Council resolution, or voter initiative, can take these rights away once given..."

The Court also explained officers' pensions could not be decided by initiative and therefore the "Citizen's Initiative is invalid because it delegates the responsibility of the ultimate decision for fixing compensation to the voters."  The Court said under the city's Charter, which mirrored the general law, the city council had to set all compensation.

The Pacific Grove Police Officers Association and Police Management Association were represented by Mastagni Law attorney Jeffrey R. A. Edwards in the matter.

California Supreme Court: Charter Cities Can Have Binding Arbitration

In City of Los Angeles v. Superior Court (Engineers & Architects Association) (June 20, 2013) --- P.3d ---, 2013 WL 3064811, the California Supreme Court ruled charter cities with binding arbitration cannot refuse to arbitrate contract grievances. The ruling overturns an earlier Court of Appeal decision that decided charter cities cannot “delegate” wage and hour disputes to arbitrators.

The case centered on the City of Los Angeles’ unilateral decision to implement furloughs in 2009. The Engineers & Architects Association was in contract and filed a grievance challenging the furloughs. But, even though the contract had binding arbitration, the City refused to arbitrate, claiming it had special powers to impose furloughs and the arbitration clause did not apply. The union sued and won at the trial court, but the Court of Appeal intervened and ruled it was illegal for the City to delegate its power to set wages to an arbitrator, citing cases that require the governing body of a city or county exercise its discretion to set employee wages.

The Supreme Court overturned the Court of Appeal. The Court ruled that by ratifying the MOUs, the City made discretionary choices in the exercise of its salary-setting and budget-making authority and was therefore bound by the MOU. The Court also rejected the City’s claim it could not agree to an MOU which would impair its ability to take all necessary actions to carry out its mission in an emergency. The City also claimed that, because the mayor has to propose a budget annually, and the Council has to enact it annually, the MOU cannot restrict the choices available to the mayor and Council in later years. The Court quickly dispatched with this claim, pointing out that the City’s position, if correct, would make any multi-year deal with contractors, creditors, and vendors unenforceable.

AB 76 Guts Local Labor Associations' Access to Public Records

AB 76 makes key provisions of the California Public Records Act optional for local governments.  Among the provisions that would be optional under the new law are the requirements local agencies respond to public records requests within 10 days and provide requestor’s with electronic versions of public records.  These provisions are critical to labor associations who need prompt responses to public records requests, especially during contract negotiations.  The Assembly and Senate passed the bill, which contains other provisions related to the budget.  It is currently on the Governor’s desk awaiting signature. 

Since the provisions received significant attention earlier this week, Assembly Speaker John Perez promised to pass a replacement bill that leave the Public Records Act intact.  However, it looks like the State Senate will not act on his replacement bill.  Senate President Pro Tem Darryl Steinberg announced today the Senate won’t take up Perez’s bill, noting the changes to the Public Records Act are designed to save money, not stifle access to records.  That’s because if the provisions are mandatory, the State has to reimburse local governments for compliance, but if its optional, the State doesn’t have to reimburse them.  While local labor associations have other access to records under the MMBA and state labor laws, unlike the MMBA, the CPRA has a powerful enforcement mechanism giving associations teeth when they have to force an employer to turn over public records.

Court: No Right to Pre-Interview Access to IA File

In Association of Orange County Deputy Sheriffs v. County of Orange, (June 12, 2013) G047167, the Court of Appeal ruled the County did not have to meet and confer with the DSA before it banned deputies from reviewing IA files before their IA interviews.  In Orange County, there was a longstanding practice where peace officers being IA'd could review the IA file before their interview.  Then, in 2011, the Sheriff banned anyone under investigation from reviewing the file before their IA interview.  The DSA sued, arguing the County had to meet and confer before making this kind of change to a past practice.

The Court decided the County did not have to meet and confer of this kind of a change to a past practice.  The Court reasoned that restricting access to IA files before the IA interview is not a "working condition" under the MMBA.  The Court looked to two other cases in reaching its conclusion.  In Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, the California Supreme Court ruled employers do not have to give officers pre-interview discovery.  Similarly, in Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, the court ruled law enforcement agencies can ban so-called "huddling" between counsel and officers after critical incidents.  In this case, the Court said pre-interview access to an IA file was like pre-interview discovery and the no "huddling" rule.  As a result, the Court decided it is not a "working condition."

The Court did agree the meet and confer requirement extends to changes in existing and acknowledged past practices, even if they are not formalized in a written agreement or rule.  However, the Court decided agencies only have to meet and confer if the past practice counts as wages, hours, or terms and conditions of employment.  Since the Court decided pre-interview access to the IA file did not count as a working condition under the MMBA, it ruled meet and confer rules did not apply.  Still, the Court left the door open to associations and agencies including these requirements in their MOUs if they chose to.

POST to Decertify Classes Not Recently Taught

In a June 4, 2013 bulletin, POST announced it plans to decertify several classes currently approved through POST.  The bulletin explains that a review of the courses currently certified showed many were one-time courses or courses that have not been offered since 2007.  As a result, "effective July 1, 2013, training courses not presented in the previous two fiscal years will be decertified. Exceptions to this include any basic course, Instructor Development Institute courses, Institute of Criminal Investigation courses; and Management and Supervisory courses."

Court: Pitchess Not Required for Peace Officer Personnel Records in Federal Court Case

In Pierce v. County of Sierra (E.D. Cal., June 3, 2013, 2:11-CV-2280 GEB AC) 2013 WL 2421710, a Northern California federal court ruled plaintiffs do not have to use the Pitchess process to get a peace officer's personnel records related in a federal lawsuit.  The case started when a deputy sheriff allegedly hit a motorcyclist with his patrol car.  The plaintiff sued the deputy and the county for negligence.

Then, the plaintiff sent a discovery request for parts of the deputy's personnel file to find paperwork related to the deputy's initial hire, find out about drug and alcohol testing, and the IA investigation related to the crash.  The County objected that the records were confidential peace officer personnel records under California Penal Code section 832.7.  The Pitchess process that limits disclosure of peace officer personnel records is the product of statute in California.  In many states, officers do not have these protections and their personnel records are more easily obtainable.

The Court decided the California Pitchess process did not apply in the federal action because the Federal Rules of Civil Procedure supersede the Pitchess process.  Instead, the Court examined whether there was good cause to turn over the documents.  The Court decided there was good cause because the records could shed light on whether the deputy was at fault and whether the County was negligent.  Accordingly, the Court ordered the County to release the records, but ordered the parties to work out a protective order to limit the exposure of the deputy's records.

Court Upholds Trial Verdict Against Peace Officer on Alleged POBR Violations

In Abney v. Board of Trustees of the California State University (May 20, 2013) 2013 WL 2241922, the Court of Appeal affirmed a trial verdict for the CSU.  The court said POBR only requires an employer to tell the officer of the nature of the investigation. The court decided the employer did not have to state the potential discipline or exactly what the charges were while the investigation was ongoing.  The Court also noted POBR does not require employers to record IA interviews.  It only requires them to give officers a copy of the recording or transcript if they do record them.

Court Rules PC 242 Does Not Trigger Firearms Ban, Reistates Peace Officer

In Shirey v. Los Angeles County Civil Service Commission (May 6, 2013)--- Cal.Rptr.3d ---- the Court of Appeal ruled a conviction under California Penal Code section 242 does not trigger a firearms ban under the Federal Gun Control Act.

Deputy Sheriff Mark Shirey was found guilty of a simple battery in violation of Penal Code section 242, a misdemeanor. Because the subject of the crime was his live-in girlfriend, the crime was considered domestic abuse. As a result, the Los Angeles County Sheriff’s Department fired Shirey.

Title 18 of US code § 922(g)(9), the Federal Gun Control Act prohibited possession firearms if convicted of misdemeanor battery upon a domestic partner. The Department claimed that Shirey’s conviction disqualified him from continued employment as a deputy sheriff because the federal law prohibited him from carrying a firearm. Shirey appealed the decision.

The court sided with Shirey and found that a conviction under section 242 does not qualify as a predicate misdemeanor crime of battery upon a domestic partner. The court reasoned that section 242 requires use or attempted use of any amounted force which includes merely touching, whereas the federal statute requires “a quantum of force greater than a de minimus use of force or offensive touching.” Therefore, the Court granted Shirley's petition.

Court Rules Pension Impairments Unconstitutional Under Contract Clause

In a major ruling with statewide implications, the Monterey Superior Court ruled Friday that the City of Pacific Grove’s 2010 voter initiative and charter amendment capping the City’s contributions to CalPERS are unconstitutional. The Court’s ruling follows a challenge to the measures brought by the Pacific Grove Police Officers Association and Pacific Grove Police Management Association and supported by PORAC LDF. The Court also ruled that the measures violated the City Charter and the general law because voters cannot set employee compensation by initiative.

According to Pacific Grove Police Officers Association President Jeff Fenton, “Today’s ruling is about fairness. We went to court to ensure the City keeps the promises it made to employees and today the court said they have to.” The Court struck down the ordinance and charter amendment because they violate the Contract Clause of the California Constitution. The Contract Clause requires local governments to keep the promises they make to public employees. It also forbids them from impairing contracts with labor associations.

The case has major implications statewide because it establishes that cities and counties can’t go back on the pension promises they made to employees.  PORAC LDF contributed significant resources toward the police officers’ efforts. “We are deeply thankful for the help from our brothers and sisters in the law enforcement community and PORAC LDF toward achieving this victory,” Fenton said.

The Pacific Grove Police Officers Association and Police Management Association were represented by Mastagni Law attorney Jeffrey R. A. Edwards in the matter.

Ninth Circuit: First Amendment Protects Peace Officer Labor Leaders from Retaliation

In Ellins v. City of Sierra Madre (Mar. 22, 2013) 2013 WL 1180299, the Court of Appeals ruled it is unconstitutional for an employer to retaliate against a peace officer union president for comments made as part of his role as union president.

The case involved John Ellins, a Sierra Madre police officer who led a no confidence vote of the police officers union against the Chief of Police, Marilyn Diaz. Then, Diaz delayed granting Ellins a certification that would result in a 5% raise. Ellins sued alleging the delay was an unconstitutional retaliation for the exercise of his first amendment rights. While waiting for the approval of his raise Ellins served a suspension he received years before. During the trial the city granted his pay-raise and backdated it to the date Ellins completed his suspension.

The court ruled Ellins is protected by the first amendment because comments made by a police officer acting as a union representative are not pursuant to the officers' official duties. Hence the officer is speaking as a private citizen. Furthermore, even though his pay-raise was backdated Ellins still suffered an “adverse employment action”. The court reasoned that an adverse employment action exists whenever any economic benefit is withheld for any amount of time.

The court then concluded that the proximity in time of the adverse employment action and the protected speech was enough to infer the possibility of retaliation. However, the court did not find retaliation on its own and ordered that a trial be held on the issue.

PERB to Hold Oral Arguments on Jurisdiction Over Peace Officers

PERB will hold oral arguments in Lompoc Peace Officers Association v. City of Lompoc, to decide whether PERB has jurisdiction over "mixed units," bargaining units composed of both sworn and non-sworn employees.  This is the first time in about ten years PERB has scheduled oral arguments.

Government Code section 3511 is at the heart of the issue.  In 2000, the Legislature gave PERB jurisdiction over labor disputes in agencies covered by the MMBA.  But it made an exception.  Government Code section 3511 says those changes "shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code."  There have been some disputes about what section 3511 really means.

In this case, the issue is whether PERB has authority to make peace officers whole in a bargaining unit composed of both peace officers and non-peace officers.  PERB initially decided the employer broke the law and ordered it to make the affected employees whole, but only the non-sworn employees.  The POA appealed, arguing the same remedy should apply to all of the employees in the bargaining unit, including the peace officers.  Oral argument will take place at PERB's Sacramento headquarters on June 13, 2013 at 2:00 p.m.

California Court Uphold Employees' Right To Vacation Pay On Termination

California Labor Code section 227.3 requires employers immediately pay a terminated employee for all his vested vacation time. In Howard Choate et al., v. Celite Corporation (May 2, 2013) B239160, the Court of Appeal decided the right provided in section 227.3 can only be waived if a negotiated collective bargaining agreement clearly and unmistakably waves that right.

Under their collective bargaining agreement, Plaintiffs in Howard earned their vacation based on hours worked the previous year and there was no waiver of section 227.3. However here was no past practice of paying out next year’s vacation time. Until the lawsuit, neither the terminated employees nor their union had objected to this practice. The court found the parties' past practice of not enforcing the vacation rule did not count as a clear and unmistakable waver of section 227.3. Therefore, the Court said the Plaintiffs were entitled to be paid for time earned. However, the court did not grant special penalties to Plaintiffs because it said the employer did not act “willfully”.

California Supreme Court: Cities and Counties Can Ban Marijuana Dispensaries

In City of Riverside v. Inland Empire Patients Health And Wellness Center, Inc. (May 6, 2013) S198638, the California Supreme Court unanimously ruled the City of Riverside was within its rights to use zoning ordinances to prohibit all marijuana dispensaries from operating within its borders. The court held that a Riverside City ordinance making all marijuana distribution a prohibited land use and all marijuana dispensaries a public nuisance not to be in violation of Compassionate Use Act of 1996 and the more recent Medical Marijuana Program of 2004.

The court reasoned that local laws banning marijuana distribution were protected by article XI, § 7 of the California Constitution which gives counties and cities the right to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws of California. Because the Compassionate Use Act and the Medical Marijuana Program only shield dispensaries from prosecution under California state laws, local municipalities are free to regulate dispensaries as they see fit, including banning them altogether.

CalPERS Back in Black After Record-Breaking Investment Gains

CalPERS has recovered more than $97 billion is value since the great recession battered its assets.  CalPERS' investment portfolio recently reached $261.7 billion, breaking CalPERS' pre-recession record on $260.5 billion in October 2007.  CalPERS still needs to grow to improve its funded status, but the returns are good news to public employees and employers.

Court of Appeal: 1-year POBR Statute of Limitations Does Not Apply to Work Comp Fraud Cases

In California Department of Corrections and Rehabilitation v. State Personnel Board (April 26, 2013) 2013 WL 1777118, the Court of Appeal ruled workers' compensation fraud investigations are exempt from the one-year limitations period established in section 3304 of POBR.  The Court rejected the argument that the investigation has to be conducted by an outside agency for the exception to apply.

There are several exceptions to the 1-year statute of limitations for IAs under POBR.  The statute says the statute of limitations is tolled when the alleged "misconduct is also the subject of a criminal investigation or criminal prosecution," when the officer waives the statute of limitations, if the investigation is multi-jurisdictional and reasonable extension is required, if multiple officers are subjects and a reasonable extension is required, if the officer is incapacitated, and if the officer is a defendant in a lawsuit about the same issue.

There is also an exception If the investigation involves an allegation of workers' compensation fraud on the part of the public safety officer."  In this case, an officer was disciplined for alleged workers' comp fraud and dishonesty in the investigation of the alleged fraud.  He argued this exception only applied when the fraud investigation was done by an outside agency.  The Court disagreed, finding the plain language of the statue did not contain that limitation.

Court of Appeal: City Violated Police Officer's Due Process Rights By Using Same Law Firm to Arbitrate, Advise on Discipline

In Glenn Sabey v. City of Pomona (April 16, 2013) B239916, the Court of Appeal ruled it violates due process to have partners in the same law firm act as advocate seeking termination and adviser to the City, overturning a police officer's termination.  The case stems from an advisory arbitration case against a police officer.  Unlike binding arbitration, advisory arbitration lets the employer reject the arbitration decision.  Here, two attorneys from Liebert Cassidy Whitmore acted as the attorney advocating for termination at the arbitration and legal adviser to the city council about whether to honor or reject the arbitrator's recommendation

 The Court ruled the second attorney's "role as an adviser to the city council violated Sabey's right to due process."  The Court explained "that an attorney cannot act as both an advocate for an agency and then as an adviser to the decision maker who reviews the result that the advocate achieved."  The Court said the rule should be the same for two different attorneys in the same law firm because "a partner would want to make another partner look good by seeking—consciously or unconsciously—to validate the job done by that partner" and "this creates an appearance of unfairness and bias."  The Court noted different rules apply to government lawyers.

As a remedy for the violation, the Court ordered the case "remanded back to the City Council for further consideration with the proviso that it must obtain independent legal advice to eliminate the taint of [the second attorney]’s involvement."   But the Court left the door open to quashing the discipline altogether in similar cases, noting it declined to do so in this case because the appellant "cited no law in support of this contention," and "[i]t is not [the Court's] responsibility to develop an appellant’s argument.”

Court Rules City Employee Has Vested Right to Sick Leave Cashout

In Lorie Deisenroth v. City of San Jose, the Santa Clara County Superior Court ruled an employee had a vested right to sick leave cashout once she retired and therefore "the City could not unilaterally eliminate her right to a payout for sick leave hours."

The City claimed it could change the rules for sick leave cashout after the employee banked the sick leave hours because ti hadn't paid the cashout yet.  The Court rejected that claim, deciding the right to a sick leave cashout vested after 15 years of service under the employee's MOU, even though the cash out did not mature until the employee retired.  The Court explained "the 'vesting' of a benefit must be distinguished from the 'maturing' of those benefits, which occurs after the conditions precedent to the payment of the benefits have taken place..."  As a result, the Court found that sick leave cashout is a form of deferred compensation and retroactive revocation of that right would be unjust and inequitable.

Court of Appeal: No Right Under POBR to Appeal DA's Brady List Decision

In an unpublished opinion, Rehan Nazir v. County of Los Angeles et al. (April 2, 2013 B238477), the Court of Appeal decided police officers do not have a right under POBR to appeal District Attorney's decisions to place them on a Brady list.  The Court reasoned that POBR only gives officers a right to appeal decisions of their employers and DA's offices are not the employing agencies for police officers.  The case does not address a situation, such as with a deputy sheriff or DA investigator, where the county is also the employing agency.

The case is about a city police officer who was placed on a Brady list because of a probable cause declaration.  The officer used a confidential informant in his investigation but omitted that information because there was an independent basis supporting probable cause to detain the individual.  Later, the DA's office characterized the declaration as untruthful and placed the officer on its Brady list.  His department fired the officer.  The officer filed a lawsuit saying he had a right under POBR to an administrative process challenging the DA's placement of him on the Brady list.  The Court of Appeal disagreed, dismissing his lawsuit.

The Court said POBR protects officers from action "by the public entities which employ them," but not other public agencies.  The Court also rejected the argument that section 3304(b) applies to all public agencies.  Section 3304(b) says: “No punitive action ... shall be undertaken by any public agency against any public safety officer ... without providing the public safety officer with an opportunity for administrative appeal.”  The Court decided "any public agency" means any public agency that employs the peace officer in question, not just any agency whatsoever.  As a result, the Court decided the officer could not sue the DA's office under POBR and dismissed his case.

PORAC has promoted a bill, AB 2543, to change the law and prohibit public safety employers from terminating officers merely because they are placed on a Brady list.  Several statewide and local public safety labor associations also support the bill.  Public safety labor associations can also negotiate a Brady protocol that provides more protections for peace officers.

PERB: Employers Must Meet and Confer Over On-The-Job Cameras

In Rio Honda Community College Dist. (March 21, 2013) PERB Dec. No. 2313, PERB decided employers must meet and confer with labor associations over the impacts of video cameras, including whether they might create new kinds of evidence in discipline cases.  PERB's reasoning should apply equally to in-car cameras and GPS devices.

The Board held the union had a legitimate concern the new cameras could be used to monitor employees' compliance with workplace rules, and would create previously unavailable evidence to support discipline or evaluations.  How video recordings might be used in discipline and evaluation is therefore a negotiable effect of the decision to install the cameras.

PERB's decision expands an earlier ruling about use of technology to monitor employees.  In Trustees of the California State University (2003) PERB Decision No. 1507-H, PERB held rules about internet use were negotiable.  Here, PERB said the impacts of using video cameras presents "the same concerns" as "monitoring employee internet usage."  As a result, under this ruling, unions likely can demand to meet and confer about the impacts of other types of electronic surveillance, such as in-car cameras and GPS devices.

Court: Stockton Doesn't Have to Impair CalPERS Pensions for Bankruptcy Eligibility

The U.S. Bankruptcy Court in Sacramento ruled today that the City of Stockton is eligible for bankruptcy protection.  The ruling follows a trial when Wall Street bondholders challenged the City's bankruptcy, claiming the City should have to stop payments to CalPERS.  The Court said nothing in the federal Bankruptcy Code requires impairment of CalPERS benefits for a city to be eligible for bankruptcy. The Court also indicated it would be unconstitutional for the City to impair its contracts in any way except bankruptcy because the Constitution protects creditors.

In a press release, CalPERS praised the Court's decision, noting "Today’s action gives the City the opportunity to propose a forward looking plan of adjustment in the bankruptcy case that will allow them to restore long term financial stability and to provide essential services to the Stockton community through the City's valued public employees." CalPERS' also committed to continuing to protect and defend the integrity and soundness" of employees' pensions. Today's ruling clears the way for bankruptcy, but leaves open future challenges to the City's plan to pay back its debts.

Court Rules POBR Statute of Limitations Tolled Until DA Declines Charges

In Richardson v. City and County of San Francisco (ord. pub. March 15, 2013), the Court of Appeal held a criminal investigation tolls the one year statute of limitations until the DA declines charges.  The case is about a San Francisco fraud investigator who was fired for CLETS violations, check fraud, and resisting arrest.  After the IAs were sustained, she filed a lawsuit claiming her Department did not discipline her within the one-year statute of limitations for discipline under POBR.

POBR’s one year statute of limitations has several exceptions.  One of the exceptions applies when, a “criminal investigation... is pending.”  Richardson argued POBR’s statute of limitations expired because the criminal investigation had to be an “actual and active investigation or prosecution” and the DA had stopped actively investigating the case against her more than a year before she was fired.  However, the Court decided the “active and actual” requirement is unworkable because it would be hard to prove how “active” a criminal investigation is at any point.  Instead, the Court said the investigation ended when the DA declined charges.  As a result, the Court upheld the discipline.

Court Finds Employers Liable for Word-of-Mouth Invasion of Privacy

In Ignat v. Yum Brands, Inc. (March 18, 2013) Case No. G046343, the Fourth District Court of Appeal ruled employees can sue when their employers publicly disclose private facts about them, even if just verbally.  The case started when Melissa Ignat, a Yum Brands employee, returned to work after an absence to learn that her employer had revealed to her co-workers that she suffered from bipolar disorder.  She filed a lawsuit, alleging public disclosure of private facts.

The case is especially significant because the Court of Appeal abolished the requirement that disclosure happened in a document.  The Court decided there was no good reason for the "document requirement" and recognized that verbal disclosures can be just as harmful and written ones.  Since the requirement served no legitimate purpose, the Court allowed Ms. Ignat to sue her employer for verbally disclosing her condition to her co-workers.

PERB Charges San Jose With Labor Law Violations Over Pension Initiative

On March 8, 2013, the Public Employment Relations Board issued a complaint against the City of San Jose related to Measure B, that City's attempt to strip employees of their retirement security.  The complaint alleges the City "knowingly provided inaccurate information" to the union about "its fiscal obligations regarding retirement benefits."  The City has been widely criticized for using pension numbers "not based on reality."

The complaint also alleges the City refused to meet and confer with the union and moved forward with Measure B without completing the labor relations process.  Accordingly, the complaint alleges the City violated Government Code sections 2503, 3505, and 3506.5.  Now the City must respond to the allegations with 20 days and the case will proceed to a hearing in front of judge with the Public Employment Relations Board.

Bill Introduced to Create "Union Agent-Represented Employee Privilege"

Assemblymember Roger Hernández introduced a new bill, AB 729, to create a new privilege, giving union representatives the right to refuse to disclose their communication with union members.  The law would create a new evidentiary privilege in California, like attorney-client, priest-penitent, and doctor-patient privilege.

The proposed law would give union representatives the "privilege to refuse to disclose any confidential information he or she may have acquired, whether or not the information was revealed in a communication between the union agent and a represented employee, in attending to his or her professional duties or while acting in his or her representative capacity" with some exceptions.  In discipline cases, the employee would have the right to insist the union representative not disclose communications.  In all other cases, the union is the sole holder of the privilege.

Assemblymember Eggman Introduces Bill to Slash Interest Due on Debts to Employees, Others

Under current law, when employees or labor associations win a judgement against a public entity, the agency has to pay interest on the debt until they pay it off.  The interest rate is set at 7% or 10%, depending on the type of case.  Now Assemblymember Susan Eggman has introduced AB 748 to let cities and counties pay minimal interest on these debts, jeopardizing employees' and unions' rights across the State.

Eggman's law would cap the interest a public agency has to pay at no greater than the rate on the "Pooled Money Investment Account."  That rate has been less than 1% for the past three years.  As a result, employees who are illegally terminated or denied their wages would receive much less interest on their awards than the interest they have to pay on their personal loans, mortgages, and credit card payments.  Cities win, employees lose.  Eggman previously served on the Stockton City Council were she voted to withhold employees' wages, even though they were guaranteed by labor contracts.

Sen. Leiu Introduces Bill to Expand POBR

Senator Ted Leiu introduced a new bill, SB 388, the expand officers' POBR rights under state law.  Under current law, agencies must inform public safety officers of the nature of an interrogation and allow them to have a representative, but only when the officer is "under investigation."  SB 388 expands the law to cover public safety officers "subject to interrogation without being under investigation."  This change makes clear officers have a right to notice regardless of whether an IA is opened on them and helps protect witness officers' rights.

SB 388 also expands the rule that public safety officers have a right to a representative "whenever an interrogation under any circumstances focuses on matters that could lead to punitive action."  Under the old law, the right to a representative only applied when an interrogation "are likely to result in" punitive action.  The bill is currently being considered by the committees on public safety and appropriations.

Court of Appeal Increases Protections for Pregnant Workers

In Sanchez v. Swissport, Inc. (February 21, 2013) 2013 WL 635266, the Court of Appeal ruled employees fired for not returning to work after a pregnancy can still sue for pregnancy discrimination even though the employee exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL).

In this case of first impression, the court explained that an employee who exhausts all of her statutory pregnancy disability leave may still state a claim for employment discrimination under FEHA because the remedies of the PDLL are meant to “augment, rather than supplant, those set forth elsewhere in the FEHA.” The statutory leave of four months available under the PDLL is “in addition to” the remedies set forth in FEHA governing pregnancy, childbirth, and pregnancy-related medical conditions. Compliance with the PDLL, thus, does not relieve an employer of its obligations under FEHA, including the obligation to provide a reasonable accommodation (which may in some cases exceed four months) to an employee disabled by pregnancy, so long as the accommodation does not impose an undue hardship on the employer.

In this case, the employee said Swissport terminated her because she was pregnant, was unable to work during her high-risk pregnancy, refused to grant her a reasonable accommodation in the form of allowing her to remain on leave until she gave birth, and terminated her because she sought such reasonable accommodations for her disability. The court concluded that these allegations were sufficient to state claims for sex and disability discrimination and retaliation in violation of FEHA.

PERB Rejects Employer Claim Factfinding Is Limited to Impasse Over CBAs

In San Diego Housing Commission v. Public Employment Relations Board, San Diego Superior Court Case No. 37-2012-00087278, the Housing Commission claims mandatory fact-finding only applies to negotiations over a master collective bargaining agreement.  In a recent filing, however, PERB rejected the employer's claims and clarified that AB 646 applies to all collective bargaining disputes, not just impasse in collective bargaining agreement negotiations.  The case started after a union representing Housing Commission employees and the Commission reached impasse over the effects of a layoff.  The union requested factfinding and filed the appropriate paperwork with PERB.  The Commission then filed a lawsuit against PERB, trying to get a judge to order it not to process the request so it could impose without factfinding.

The Meyers-Milias-Brown Act gives unions the right to "request that the parties' differences be submitted to a factfinding panel."  (Gov. Code § 3505.4.)  In this case, the employer wants to add the words "about a master collective bargaining agreement" to qualify "differences" and limit the scope of mandatory fact-finding so that it can impose on the union without a neutral evaluation.  However, PERB explained to the Court that "an MOU is simply a written memorialization of the parties' agreement following negotiations on matters within the scope of representation."  The MMBA's requirement to meet and confer is not limited to collective bargaining agreements typically negotiated once a year or less frequently, indeed, as PERB noted, the term "collective bargaining agreement" does not even appear in the MMBA. Therefore, PERB argued, since factfinding applies to all disputes, "once an employee organization requests the parties' 'differences' be submitted to factfinding...participation in factfinding is mandatory."  The next hearing in the case is March 1, 2013.

Court Rules NLRB Appointments Unlawful, Calls Into Question 200 Decisions

In Noel Canning v. National Labor Relations Board (D.C. Cir., Jan. 25, 2013, 12-1115) 2013 WL 276024, the Court of Appeals for the D.C. Circuit ruled President Obama's January 4, 2012 recess appointments to the National Labor Relations Board were unconstitutional.   As a result, the NLRB's decisions since that time are now being called into question and may be unenforceable.  

The Recess Appointments Clause is part of the federal Constitution.  It says, "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."  This case was about what counts as "the Recess of the Senate" and what does not, with the President arguing the Senate was in recess on January 4, 2012 and the petitioner arguing it was not.  Ultimately, the Court decided the Senate was not recess, reasoning that "The Recess" means only breaks between official sessions of Congress and not other breaks during a session.  As a result, the Court found the Senate was not in recess on January 4, 2012 and the President's appointments to NLRB are therefore invalid.

The affects of the decision on unclear.  The NLRB's official position is that the ruling only applies in one case.  However, others believe it calls into question most of the NLRB's 2012 decisions, including several involving social media.

PERB Reaffirms Employers Must Negotiate Number of Affected Employees in Layoffs

In Salinas Valley Memorial Healthcare System (2012) PERB Dec. No. 2298-M, the Public Employment Relations Board reaffirmed and elaborated about employers' duty to negotiate with unions about layoffs related to labor costs.

PERB has held employers do not have to negotiate about the decision to layoff.  However, employers still have a duty to meet and confer with unions about the implementation, impacts, and effects of a layoff.  Some of the established layoff effects are post-layoff workload and safety and conditions of remaining employees.  This case clarifies what counts as implementation and impacts that the employer must meet and confer about.

Here, the employer initially said it wanted to layoff 79 people "at the end of the year."  The union demanded to meet and confer over the timing, number, identity of the employees to be laid off.  The employer claimed it did not have to meet and confer about those details, asserting a "management prerogative."  PERB rejected that claim.  PERB explained "the implementation (timing of the layoff, and the number and identity of  employees to be laid off) and the impact and effects on remaining employees, including workload and safety, were mandatory subjects for meeting and conferring prior to the implementation of the layoff."  As a result, PERB decided the union stated a prima facie case for an unfair labor practice.

CalPERS Sees Huge 13.3% Increase is Assets

The Sacramento Bee reports CalPERS beat forecasts and had another big year in investment returns, increasing the value of its portfolios by 13.3%.  The Bee reports CalPERS' stocks gained 17.2%, its real estate holdings went up 12.8%, and its private equity portfolio saw a 12.2% return.  CalPERS has been recovering strong from 2008-2009 when it saw significant losses because of the economy.  The 13.3% increase follows CalPERS' impressive 20.8% increase in 2011 and greatly exceeds the 4.5% estimate that Stanford relied on to make dire projections in December 2011.

Courts Finds Some Limits to Duty to Accommodate Disabled Peace Officers

In Lui v. City and County of San Francisco (2012) 211 Cal. App. 4th 692, the California Court of Appeal, First Appellate District, ruled it may not be discriminatory for a department to terminate a peace officer who cannot perform all the essential duties of an officer, when the peace officer’s limitations are due to a disability. After suffering a major heart attack, a 24-year veteran retired after he was informed by his department that there were no administrative positions available that did not require him to perform the strenuous physical duties regularly performed by patrol officers in the field. He then sued under California’s Fair Employment and Housing Act (FEHA) alleging discrimination and failure to accommodate. Following a court trial, judgment was entered in favor of the City and County of San Francisco and on appeal, the appellate court affirmed.

The San Francisco Police Department had a general order which stated that if an officer is assigned to an administrative position, he or she must be able to perform the essential functions of the full duty police officer, such as making forcible arrests, pursuing fleeing suspects and responding to emergency situations. The Court noted not all police officer positions exist for the purpose of enforcing the law and protecting the public and that officers in administrative positions are not frequently required to engage in strenuous duties. However, in this case, the Court said thse duties are essential functions of administrative positions because that department has a legitimate need to be able to deploy officers in administrative positions in the event of emergencies and other mass mobilizations.

Steinberg Announces Senate Public Safety Committee Members

California State Senate President pro Tem Darrell Steinberg announced today he is appointing Senator Loni Hancock (D-Berkeley) to chair the Senate Public Safety Committee.  The Senate Public Safety Committee is responsible for legislation changing criminal procedure, the Penal Code, and other criminal sanctions.  The other committee members will be Joel Anderson (R-Alpine), Marty Block (D-San Diego), Kevin de Léon (D-Los Angeles), Steve Knight (R-Antelope Valley), Carol Liu (D-Inland Empire), and Darrell Steinberg (D-Sacramento).  Sen. Hancock with also chair the budget sub-committee on Corrections, Public Safety, and the Judiciary.