Tuesday, August 27, 2013

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.

Monday, August 26, 2013

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.

Thursday, August 22, 2013

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.

Monday, August 19, 2013

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.

Friday, August 2, 2013

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.