Friday, May 30, 2014

California Supreme Court Rules CPRA Requires "Particularized Showing" to Prevent Disclosure of Officers' Names After Shooting

On May 29, 2014 in Long Beach Police Officers Association v. City of Long Beach, the California Supreme Court held the California Public Records Act ("CPRA") requires a "particularized showing" of officer safety concerns to prevent disclosure of an officer's name after a shooting.  In this case, the Court found "vaguely worded declarations" and "general assertions" about officer safety risks was not enough to prevent disclosure.

On December 12, 2010, officers responded to a call about an intoxicated man brandishing a "six-shooter."  When officers arrived, the man pointed an object at them resembling a gun.  The officers opened fire and the man died.  It turned out the object he pointed at officers was a garden hose spray nozzle with a pistol grip.  A few days later, a reporter from the L.A. Times submitted a CPRA request for the names of the officers involved in the shooting, and the names of all officers involved in shootings from January 1, 2005 to December 11, 2010. 

CPRA section 6254 subsection (c) exempts from disclosure personnel or similar files if disclosure "would constitute an unwarranted invasion of personal privacy."  The Court refused to apply a blanket rule preventing disclosure of officers' names after a shooting in every circumstance.  Instead, the Court emphasized the public's interest in the conduct of its peace officers.  To overcome the public's interest and prevent disclosure, the City of Long Beach ("City") and the Long Beach Police Officers' Association ("Association") had to show disclosure would cause an unwarranted invasion of the officers' personal privacy. 

A particularized risk or threat to the officers' safety or their family's safety exempts officers' names from disclosure under the CPRA.  The Court stated "Of course, if it is essential to protect an officer's anonymity for safety reasons or for reasons peculiar to the officer's duties - as, for example, in the case of an undercover officer - then the public interest in disclosure of the officer's name may need to give way."  While the Association and the City submitted declarations describing the possibility of gang retaliation against officers involved in shootings with gang members, in the Court's opinion, the concerns were "general in nature."  The Court was quick to point out "We do not hold that the names of officers involved in shootings have to be disclosed in every case, regardless of the circumstances.  We merely conclude...that the particularized showing necessary to outweigh the public's interest in disclosure was not made here..." 

Justice Ming W. Chin disagreed with the majority's ruling and wrote a lengthy dissenting opinion.  In his view, the Association and the City presented ample evidence of the safety threat faced by police officers after a shooting.  He argued the City and the Association established officers' names should  be exempt from disclosure under the CPRA.  He concluded by stating courts should allow law enforcement agencies to protect their officers, because "They deserve at least that much for their brave service."

Thursday, May 29, 2014

PERB Holds Factfinding Applies to Single-Issue Disputes

On April 26, 2014, PERB held factfinding applies to single-issue disputes as well as negotiations for memorandums of understanding ("MOU") in County of Contra Costa.  This important point of contention will likely be resolved by appellate courts in other recent cases considering the same issue.

In County of Contra Costa, AFSCME Local 2700 ("Association") and the County of Contra Costa ("County") negotiated over creating a legal clerk classification.  The parties reached agreement on all issues except the pay rate for employees in the classification.  The parties declared impasse in early September 2013.  On September 25, 2013, the Association filed a request for factfinding under MMBA section 3505.4 with the Office of the General Counsel. 

The County opposed the Association's request for factfinding and argued requests for factfinding only apply to bargaining disputes arising after negotiations for an MOU, not single-issue bargaining disputes.  The Board heard the County's appeal and approved the Association's request for factfinding.  The Board held factfinding procedures apply to any bargaining impasse over negotiable terms and conditions of employment, not only impasse over new or successor MOUs. 

PERB recognizes the legislative intent behind AB 646 was to "prevent agencies from rushing through the motions of the meet-and-confer process to unilaterally impose the agency's goals and agenda."  If factfinding only applies to disputes over an MOU, agencies could avoid factfinding by splintering negotiations over terms and conditions of employment during the term of the MOU.  This practice would be detrimental to the bargaining process.

Friday, May 23, 2014

Court of Appeal Rules Employer May Seek a Second Doctor's Opinion About Fitness for Duty After Employee Returns from FMLA Leave

On March 15, 2014, the California Court of Appeal in White v. County of Los Angeles held an employer may order a second fitness for duty evaluation after the employee returns from medical leave under the Family Medical Leave Act ("FMLA").  Under the FMLA, an employee must be reinstated to work after being cleared by the employee's medical provider.  However, once reinstated, the employer may then order the employee to submit to an additional fitness for duty evaluation.

The White case involved a Senior District Attorney Investigator with the Los Angeles County District Attorney's Office.  After the investigator's brother-in-law passed away, she began having trouble at work.  The County was concerned with her work performance and questioned her judgment on occasions she was working in the field.  She took FMLA leave on June 6, 2011 to seek treatment for anxiety and depression.  After treatment, her medical provider determined she could return to work on September 7, 2011.

Upon the investigator's return, the County ordered her to appear for a medical evaluation conducted by a County-designated medical provider.  She did not attend the scheduled fitness for duty evaluation.  She then filed a lawsuit seeking to prevent the County from ordering her to attend the fitness for duty evaluation.  She argued the County violated her right under the FMLA to be restored to employment upon her doctor's certification alone.

The Court of Appeal held that under the FMLA, the employer must accept the employee's physician's certification for reinstatement.  However, after reinstatement, the FMLA protections no longer apply.  At that time, the employer may require an additional fitness for duty evaluation even if it is based on conduct occurring before the FMLA leave.  Since she had been officially reinstated to her position before the County ordered the fitness for duty evaluation, the County could legally order the evaluation.

Thursday, May 15, 2014

PERB Asserts Jurisdiction Over Police and Police Management for Factfinding and Denies Untimely Request

PERB's recent decision in City of Redondo Beach was significant for two reasons.  First, while PERB does not ordinarily assert jurisdiction over police and police management due to exceptions outlined in MMBA sections 3509 and 3511, it found these exceptions do not apply to its authority to appoint a factfinder under section 3505.4.  Second, PERB enforced the 30-day deadline to request factfinding against the association, even though the city did not respond to a request for mediation until after the timeline expired.

The Redondo Beach Police Officers' Association ("Association") and the City of Redondo Beach ("City") were negotiating for a successor MOU.  After sixteen months of negotiations, the Association declared impasse in a letter to the City on July 11, 2013.  The letter triggered the 30-day timeline for the Association to request factfinding.  The Association also requested mediation, which is voluntary, pursuant to the Employer-Employee-Relations policy.  Finally, on October 23, 2013, the City declined the Association's request for mediation.  A few weeks later, the City presented the Association with its "Last, Best, and Final Offer."

The Association then requested factfinding on November 20, 2013, but was denied for untimeliness.  The Association appealed arguing MMBA section 3505.4 contemplates factfinding only after mediation.  It claimed since the City did not respond to the Association's request for mediation for three months, the 30-day timeline did not begin until after the City denied the mediation request on October 23, 2013.  The City argued the Association's deadline to request factfinding was triggered by its letter declaring impasse on July 11, 2013, and the factfinding request was untimely.

Although the parties did not raise the issue, PERB held it had jurisdiction over the appeal.  PERB found that section 3509, exempting management employees from PERB's jurisdiction, and section 3511, exempting peace officers from its jurisdiction, did not apply to requests for factfinding under section 3505.4.  It held the Legislature did not intend for those exceptions to apply to PERB's authority to appoint a factfinder because the Legislature did not include similar language in section 3505.4.

In addition, PERB held the Association's request for factfinding was untimely.  Section 3505.4 gives the sole right to request factfinding to the employee organization.  PERB Regulation 32802 provides if a dispute is not submitted to mediation, a request for factfinding must be submitted within 30 days after either party declares impasse.  The fact that the City waited three months to deny mediation did not alleviate the Association's responsibility to request factfinding within the 30-day statutory deadline.

Wednesday, May 7, 2014

CalPERS Fights for Retirement Security in Detroit

The California Public Employees' Retirement System ("CalPERS") filed an amicus brief in the United States Court of Appeals to support the Committee Retirees of the City of Detroit and others in appealing the bankruptcy court's determination that Detroit is eligible for bankruptcy.  Specifically, CalPERS seeks to reverse the bankruptcy court's ruling that, once a state authorizes a city to file for Chapter 9 bankruptcy, state laws and constitutions no longer control the city's actions.  The bankruptcy court's decision holds that a city can impair the rights of a public pension system in bankruptcy despite state laws prohibiting such impairment. 

In the amicus brief, CalPERS argues the bankruptcy court erred by providing an improper advisory opinion.  The bankruptcy court advised that retirement pensions may be impaired in a manner consistent with the 10th Amendment.  CalPERS argued the bankruptcy court should not have ruled on the constitutional issue when it was unnecessary to the court determining whether Detroit was eligible for bankruptcy.  CalPERS asserted the constitutional issue was not "ripe" for review, meaning it was not ready for the court's consideration.  Federal courts may not enter into a controversy before it has solidified, or before all other available remedies have been exhausted.

CalPERS also argues the bankruptcy court's decision nullifies Bankruptcy Code section 903, which expressly preserves state laws governing municipalities during bankruptcy.  Lastly, CalPERS argued the court's analysis was problematic because the court improperly created a presumption in favor of eligibility in interpreting the good faith filing requirement.  CalPERS seized the opportunity to weigh in on these critical issues affecting the retirement security of more than 1.7 million CalPERS members.