Monday, April 29, 2013

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.

Wednesday, April 17, 2013

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.”

Tuesday, April 16, 2013

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.

Thursday, April 4, 2013

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.

Wednesday, April 3, 2013

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.

Monday, April 1, 2013

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.