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.
