NLRB: Employees May Use Employer Email on Nonworking Time

On December 11, 2014, the National Labor Relations Board issued a greatly anticipated decision in Purple Communications , Inc. v. Communications Workers of America, AFL-CIO. The Board held employees may use employer email systems for statutorily protected communications on nonworking time, unless the employer shows a business justification for prohibiting it. In reaching this decision, the Board overruled prior case law to respond to technological changes in society.

The Board overruled its 2007 decision in Register Guard, finding it "was clearly incorrect." Register Guard held an employer may completely prohibit employees from using the employer's email system for concerted activities protected under Section 7 of the National Labor Relations Act. Register Guard allowed employers to completely ban employees from using the employers email system for these purposes without demonstrating any business justification, so long as the ban was not applied discriminatorily.

Purple Communications overruled Register Guard, finding it undervalued employees' core Section 7 right to communicate in the workplace about their terms and conditions of employment, and granted too much weight to employers' property right. The Board noted statistics showing email has become the most pervasive form of communication in the business world. The Board also discussed the Supreme Court's decision in City of Ontario, California v. Quon, which found some personal use of employer email is common and usually accepted by employers.

The Board stressed its holding in Purple Communications is "carefully limited." The holding only applies to employees who have already been granted access to the employer's email system and does not require employers to provide such access. Also, an employer may justify a total ban on nonwork use of email by showing the ban is necessary to maintain production or discipline.  Employers may also impose uniform and consistent controls over its email system to the extent necessary to maintain production and discipline. The holding is limited to email access, and does not extend to other forms of electronic communication. Although a small step, this decision shows the Board's willingness to adapt to ever-increasing technological changes.

This decision is about access to employers' email systems, not confidentiality of those emails.  It is possible some employers will read emails sent through their email systems and labor leaders should use caution about what they send on an employers' email system.

Court of Appeal Denies Administrative Appeal for Officers' Involuntary Transfers

On December 9, 2014, the California Court of Appeal held the Public Safety Officers' Procedural Bill of Rights Act ("POBR") does not afford officers the right to an administrative appeal of a transfer of assignment solely because the transfer may lead to negative employment consequences. In Los Angeles Police Protective League v. City of Los Angeles, the Court of Appeal denied two peace officers an administrative appeal for their involuntary transfers of assignments.

In City of Los Angeles, two officers were involuntarily transferred to different assignments. The City based one transfer on the officer's negative performance in the areas of counseling, communication, and management skills toward subordinate employees. The City transferred another officer because a discipline investigation supposedly damaged the officer's relationships with his coworkers. The City claimed his transfer provided an opportunity for a "fresh start with new coworkers."

POBR affords officers an opportunity for administrative appeal of "transfers for purposes of punishment." The officers alleged their transfers were punitive. As evidence, one officer asserted that the transfer would not allow her to work as many overtime hours and she would lose her department-issued take-home vehicle. The other officer showed he was placed on restrictive duty status, which prohibited him from carrying a gun, and the transfer damaged his reputation. Both officers asserted the transfers would adversely affect their opportunities for promotion in the department.

The court held the transfers were not punitive and the officers were not entitled to an administrative appeal. The court held the loss of possible overtime did not result in a "reduction of salary" because the officers were not entitled to particular amount of overtime and it varied depending on departmental needs. The court also found officers were not entitled to take-home vehicles, and it did not result in any reduction of salary. In addition, the City presented evidence that involuntary transfers would not hurt the officers' chances of promotion. This is an unfortunate case for peace officer's appeal rights.

California Supreme Court: Arbitrators May Rule On Pitchess Motions

On December 1, 2014, the California Supreme Court held arbitrators may rule on Pitchess motions during peace officer administrative appeals. The court's decision in Riverside County Sheriff's Department v. Stiglitz ensures peace officers can get information to defend discipline cases.

In Stiglitz, the Riverside County Sheriff's Department terminated a deputy for allegations of falsifying payroll forms. The deputy appealed the discipline to arbitration. The deputy intended to assert a disparate treatment defense, arguing others had committed similar misconduct but were not fired. To prove this defense, the deputy sought redacted records "from personnel investigations of any Department employees who have been disciplined for similar acts of misconduct." She limited her request to events during the previous five years, and only sought incident summaries, the rank of the officer, and the discipline imposed. The department objected, arguing in part that the requested information was confidential and the arbitrator lacked authority to rule on Pitchess motions.

The court held arbitrators have the authority to grant Pitchess motions. Evidence Code section 1043 states the motion should be filed in the appropriate court "or administrative body." The court held this language specifically grants arbitrators the authority to rule on the Pitchess motions because otherwise, the Legislature would have authorized filing a motion in a body not authorized to rule on it. The court also noted the Legislature did not provide a mechanism to transfer a motion from an administrative proceeding to superior court. The absence of such a mechanism showed the Legislature's intent for arbitrators to make such rulings.

The court also held its conclusion is consistent with the purposes behind the Pitchess statutes and the Public Safety Officer Procedural Bill of Rights Act ("POBRA"). The Pitchess statutes reflect the Legislature's attempt to balance a litigant's discovery interest with an officer's confidentiality interest. These interests must be balanced whether the motion is filed before a court or an administrative hearing officer. Also, POBRA grants officers the right to administratively appeal an adverse employment decision and give the officer an opportunity to convince the agency to reverse its decision. Allowing discovery of relevant information to an officer's defense during the administrative hearing furthers these goals.

Ninth Circuit's Opinion Granting Distress Damages in Officer-Involved Shootings Stands

On October 6, 2014, the U.S. Supreme Court denied review of the City's appeal of Chaudhry v. City of Los Angeles. This upholds the Ninth Circuit's ruling allowing pre-death pain and suffering damages in section 1983 claims when the death was caused by a violation of federal law.

In Chaudhry, a jury found a police officer's shooting was unjustified despite the officer testifying the suspect lunged at him with a knife. The jury awarded $700,000 to the suspect's family for wrongful death and $1 million to the suspect's estate for pain and suffering based on an excessive force claim under 42 U.S.C. section 1983. California law prevents a decedent's estate from recovering damages for the decedent's pre-death pain and suffering. Federal law is silent on the issue.

The Ninth Circuit found California's limitation on damages conflicted with section 1983's goals of compensation and deterrence. The Ninth Circuit ruled preventing pre-death pain and suffering damages to a decedent's estate makes it more economically advantageous for the defendant to kill rather than injure. The court held the state-law limitation on damages does not apply in section 1983 claims if the death was caused by a violation of federal law. This ruling greatly increases potential liability for section 1983 defendants.

New Jersey Superior Court Rules Police Dashboard Video Recordings are Public Records

A New Jersey Superior Court judge ruled in two separate cases police dashboard video recordings are public records subject to disclosure under New Jersey's Open Public Records Act. In his most recent decision, the judge ordered the Ocean County Prosecutor's Office to disclose a police dash-camera video depicting a police officer's use of a police dog during an arrest. The court found the video was not an exempt "criminal investigatory record," and disclosure did not violate the motorist's privacy rights.

The video shows an officer's use of a police dog during a vehicle stop arrest. The officer has been charged with aggravated assault and official misconduct. Plaintiff John Paff requested a copy of the video from the Prosecutor's Office on May 20, 2014. The Prosecutor's Office denied Paff's request arguing the videos were exempt from disclosure because they were criminal investigatory records.

The court ruled the Prosecutor's Office must disclose the video. He found the "ongoing investigation exception" does not apply because the video was made before the investigation began. This exception does not retroactively render public documents confidential once an investigation starts. Also, since police agencies require regular recording of law enforcement activities, the video constitutes a government record rather than a "criminal investigatory record." And disclosure does not harm the motorist's privacy rights because the incident occurred in a public place, and her face cannot be seen in the video.

The Ocean County Prosecutor's office plans to appeal the rulings. Releasing such videos may taint the jury pool preventing defendants from receiving a fair trial. In addition, the outcome of these cases may spur litigation under public records laws in other states.

Hearing Officers Must Exercise Independent Judgment When Reviewing Discipline Cases

The California Court of Appeal in Quintanar v. County of Riverside held that hearing officers must exercise their independent judgment when reviewing department discipline.

Quintanar is a Deputy in the Riverside County Sheriff's Department. The Department demoted Quintanar after he allegedly used excessive force. Pursuant to the procedures outlined in the MOU, Quintanar filed an administrative appeal which triggered a hearing before an impartial hearing officer. The MOU gave the hearing officer broad review powers. This included the ability to hold a full-scale evidentiary hearing where the hearing officer had to issue findings of fact and conclusions of law. Crucially, the MOU allowed the hearing officer to sustain, modify, or rescind the department imposed discipline.

The Court of Appeal concluded the MOU required the hearing officer to use his independent judgment in reviewing the discipline. The court seized on the broad hearing power and the ability to modify the discipline to justify its holding. While the hearing officer could consider the department's discipline as evidence, the hearing officer was not bound by those recommendations.

Many MOUs across the state contain similar language to the provisions in this case. In most cases, the MOU will not explicitly require the hearing officer to exercise independent judgment. However, if the MOU allows the hearing officer to "sustain, modify, or rescind" the department's discipline or if it allows the hearing officer to submit findings of fact or conclusions of law, courts may now require the hearing officer to exercise his or her independent judgment in reviewing the discipline.

Supreme Court Grants Review, Stay in Controversial Peace Officer Personnel Records Case

The California Supreme Court granted review and a stay today in the controversial Court of Appeal decision in People v. Superior Court (Johnson). The Court of Appeal ruled prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision delivered a blow to officers' confidentiality interests in their personnel records. The California Supreme Court will decide whether a prosecutor must file a Pitchess motion before accessing peace officer personnel files to search for Brady material that may be subject to disclosure to a criminal defendant.

The Court of Appeal previously considered whether the prosecution is entitled to direct access to peace officer personnel files to search for Brady material. To answer this question, the Court of Appeal considered the interplay between Brady v. Maryland, which requires the prosecution to disclose evidence material to the defense and Pitchess discovery procedures, which hold officer personnel records are confidential absent discovery under Evidence Code section 1043.

The Court of Appeal divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify Brady material subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense.

The Court of Appeal found Section 832.7 does not preclude prosecutors' access to officer personnel files for Brady purposes. The court noted that because police are considered part of the "prosecution team," the two agencies can share confidential information. In coming to this conclusion, the Court of Appeal disagreed with People v. Gutierrez, and its progeny, which held the prosecution could not access officer personnel files absent a motion under section 1043. Gutierrez, following a prior California Supreme Court case City of Los Angeles v. Superior Court (Brandon), found the statutory Pitchess procedures implement Brady rather than undercut it, because a defendant who cannot meet the less stringent Pitchess standard cannot establish Brady materiality. Rather than following this precedent, the Court of Appeal ruled prosecutors may conduct a preliminary inspection of officers' personnel files. But if the prosecutor identifies Brady material, the prosecutor must file a Pitchess motion before disclosing it to the defense.

This case will be very important for law enforcement throughout the state. The Court of Appeal's decision has already been used by public agencies and courts to circumvent the Pitchess process. The California Supreme Court should overturn this misguided decision and restore Pitchess. A favorable Supreme Court decision will protect officers' privacy rights and prevent unnecessary disclosures of confidential personnel information.

Judge Approves Stockton Bankruptcy Plan - Saves CalPERS Investment

In a decisive win for public employees, Judge Christopher M. Klein today ruled in favor of Stockton's bankruptcy plan of adjustment, preserving the city's contract with CalPERS. The judge noted that the bankruptcy cuts had already reduced compensation below market. Hopefully this ruling will help stabilize police recruitment and retention in Stockton which has been unable to fill vacant police positions and has experienced a loss of nearly half its veteran officers over the last 3 years.

Earlier this month, Judge Klein had ruled that bankruptcy law preempted state law barring the impairment of CalPERS pensions in bankruptcy. City officials acknowledged that if the pensions were impaired they would experience a further exodus of police officers and city employees, who would have to obtain employment in another CalPERS or reciprocal agency within six months to retain their classic employee pension status under PEPRA. Judge Klein noted that re-doing the entire pension system would be no simple task. To even compete in the labor market, the City would also have to establish a new similar pension system that might be more expensive than CalPERS.

Judge Klein also held that PERS is not the creditor that would suffer the impairment. He found that the employees would receive the pension cuts, not PERS, and that employee compensation must be considered as a whole, including pension obligations. Many Stockton employees, including the police department, had made considerable sacrifices to keep the city afloat. These sacrifices included eliminating retiree health care completely, cutting salaries for current employees by 20-30%, reducing pensions for new hires, and requiring employees to contribute to their pensions. The Judge held that these changes were the result of long, difficult negotiations between labor organizations and the city. Judge Klein held that labor agreements cannot easily be set aside and recognized the importance of those negotiations and post-bankruptcy labor agreements.

Judge Klein concluded his ruling by issuing a stern warning to other public entities considering Chapter 9 bankruptcy. As the City's attorneys fees alone totaled nearly $14 million, Judge Klein stated that the high costs exceeded expectations and present a sobering lesson why municipalities should not file for bankruptcy. The objecting creditor, Franklin Templeton's, attorney told Judge Klein:  "Obviously, we're disappointed by your ruling. We will evaluate our next steps."

PERB Vindicates Right of Public Safety Professionals to Wear Union Insignia on Duty

In a decisive win for labor, the Public Employment Relations Board (PERB) overturned an administrative law judge and held firefighters at Sacramento’s airports have the right to wear Sacramento Area Fire Fighters, IAFF Local 522 union logos on duty.

The case has statewide importance for two reasons. First, the ruling means public safety professionals, such as firefighters and peace officers who were a uniform, still have the right to wear union insignia on duty. Second, firmly established that the right to wear union insignia cannot be limited to pins, but includes other apparel such as T-shirts, caps, and clothing.

In County of Sacramento (2014) PERB Decision No. 2393-M, firefighters wanted to wear union logos on the Class B uniform t-shirts, caps, and sweatshirts. Local 522 provides the apparel at cost to firefighters it represents throughout the Sacramento area. The Local 522 apparel conforms to uniform specifications and includes the union logo.

For a time, firefighters were allowed to wear the union logo apparel occasionally. In October, firefighters wore pink versions of their union logo apparel to support breast cancer awareness. There were no operational problems or complaints. Then, the County ordered the firefighters not to wear “hats, T-shirts and sweatshirts with the union logo” and announced it would discipline any firefighter who wore the union logo.

Local 522 filed an unfair practice charge with PERB, alleging the prohibition against wearing the Local 522 logo interfered with their rights under the Meyers-Milias-Brown Act, one of California’s public sector collective bargaining statutes. Local 522 members expressed their strong desire to support and show solidarity with their union which they had worked hard to join by wearing union apparel on duty.

The County claimed the firefighters did not have the right to wear union insignia on their Class B uniform. It claimed that since the firefighters wore public safety uniforms, the County had the right to ban union insignia since they were not part of the uniform. The County also claimed union members only have a right to wear small union pins, not other kinds of union apparel.

PERB rejected the County’s arguments and upheld the right of Local 522 members to wear the union logo. PERB held the “fundamental right to wear union insignia at work” applies equally to employees who wear public safety uniforms. PERB rejected the notion that a union member’s right to wear union insignia is limited to wearing pins, noting, “The County offers no logical argument why a protected right to wear union insignia transforms into an unprotected right because the insignia appears on clothing rather than an object that is attached to clothing.”

Thus, PERB held the County had to demonstrate there was a special circumstance justifying the restriction on wearing the union logo. The County provided no evidence of a special circumstance and the evidence showed several other agencies permit firefighters to wear union insignia at work without incident. Thus, PERB decided the County violated Local 522 members’ rights and ordered it to cease and desist and post notice of its violation of state law.

Local 522 was represented in the matter by Jeffrey R. A. Edwards, a senior associate at Mastagni Holstedt, APC.

Court of Appeal Publishes Indio Opinion After Requests Filed by PORAC LDF, Upland POA

The California Court of Appeal issued an order directing the publication of its earlier case Indio Police Command Unit Association v. City of Indio. As previously noted on this blog, in that case the court upheld an award of attorney's fees based on the injunction noting that the association's lawsuit enforced an important public interest.

Regarding the labor relations issue, the Court of Appeal held that the City violated its meet and confer obligations under the Meyers-Milias-Brown Act (MMBA). The police chief advised the PCU's counsel of his intention to implement a "strategic reorganization" plan of the department's command structure, which would eliminate the captain and four lieutenant positions, and result in the demotion of certain PCU members and the layoff of one PCU member. The police chief then asserted that he could implement this reorganization plan without providing an opportunity to bargain.

The Court of Appeal rejected the City's argument. Generally, an employer's action is subject to the mandatory bargaining requirements of the MMBA if it will have a significant effect on wages, hours, and other terms and conditions of employment, including a permanent transfer of work away from a bargaining unit. Here, the City plan would eliminate certain positions represented by the PCU, demote some of the officers, resulting in the loss of wages and seniority, and layoff at least one PCU member. The plan, therefore, would have a significant impact on wages, hours, and other terms and conditions of employment and the City had an obligation under the MMBA to meet and confer over it.

Originally the case was unpublished, meaning that no other party could cite to it as support for their legal arguments. However, recognizing the importance of this case to public safety labor associations, PORAC LDF and the Upland POA filed requests that the court publish its decision. On October 9, 2014 the court granted that petition allowing all attorneys to rely on this strong precedent to enforce the rights of public service employees.  Mastagni Holstedt attorney Jeffrey R. A. Edwards filed the request on behalf of PORAC LDF. Upland POA President Moe Duran filed the request on behalf of Upland POA.

Stockton Bankruptcy Ruling May Not Have Practical Affect on Employee Pensions

During Stockton bankruptcy proceedings on Wednesday, October 1, 2014, Judge Klein stated the City could reject the CalPERS contract under the bankruptcy code. Pension reform supporters overstate Judge Klein's oral ruling as a major blow to public employee pensions. In reality, this ruling may not affect Stockton employee pensions.

Judge Klein heard oral arguments from the City and its creditors about whether the contract between CalPERS and the City could be rejected in bankruptcy. The City's proposed bankruptcy plan maintains the City's CalPERS obligations and preserves employee pensions. One of the City's creditors, Franklin Templeton Investments, argued it was unfair for the City to maintain its contract with CalPERS at the expense of other creditors. State law provides that CalPERS contracts may not be impaired in bankruptcy. However, the state law contradicts the bankruptcy code, which allows impairment of contracts that have not been fully performed. Judge Klein ruled the City could cut ties with CalPERS under the bankruptcy code and impair employee pensions to allow more money for other creditors.

While this ruling suggests pensions may be vulnerable during municipal bankruptcies in the future, it is unlikely to affect pensions in this case. Judge Klein's oral ruling is not yet binding. He is scheduled to rule on the City's proposed plan on October 30, 2014. If he confirms the plan, this issue is avoided altogether because the current plan does not impair the CalPERS contract.

Even if the City has the option to reject the CalPERS contract, the City recognizes doing so would be highly impractical. The costs of losing the CalPERS contract greatly outweigh any potential benefits. This would force Stockton to join another retirement system, such as the San Joaquin County Employee Retirement Association, or create its own retirement system. Both options would likely cost at least as much as maintaining its CalPERS contract. 

If the City lost its contract with CalPERS, it may not be able to offer pensions to employees. The City estimated it could only recover 60% of the money necessary to fund its employees' pensions if CalPERS terminated its contract. Losing employee pensions would make the City unfit to compete in the labor market. This would inevitably cause a mass exodus of employees from the City and make it extremely difficult to attract new employees. Under PEPRA, Stockton employees would have to start working for another CalPERS contracting agency within six months after CalPERS terminates its contract with the City to avoid being treated as "new employees" and subjected to significantly worse pension formulae and cost-sharing rules.

Terminating the CalPERS contract would also throw the entire bankruptcy proceeding back into chaos. It would breach most, if not all, labor agreements as well as the settlement the City negotiated for retiree medical. The City would be forced to revise its current plan and reallocate the available funds. Additionally, it would give CalPERS a claim in the bankruptcy worth well over $1 billion.

In short, while the ruling is disconcerting, there is a significant chance this will not have any practical affect on Stockton employee pensions.

Court of Appeal Upholds Union's Attorney Fees Award After City Failed to Meet and Confer

On September 15, 2014, in Indio Police Command Unit Association v. City of Indio, the California Court of Appeal upheld a $102,900 attorney fees award to a police officer association. The association obtained an injunction against the City of Indio for violating the MMBA meet and confer requirements.

In City of Indio, the City notified the Indio Police Command Unit Association that it planned to implement a "strategic reorganization" of the Department's command structure. The plan eliminated the Captain and four Lieutenant positions. The plan also reduced command staff from five sworn officers to two sworn officers and one unsworn supervisor. The Department's legal counsel claimed the decision to reorganize was not subject to the MMBA meet and confer requirements. The City agreed only to negotiate the impact of the reorganization. The association obtained an injunction preventing the City from implementing the reorganization plan until it met and conferred in good faith. The City finally complied and the parties reached an agreement.

The court awarded attorney fees to the association based on the private attorney general statute. The court found the association enforced important rights affecting the public interest. The court also found the litigation benefited not only the association and its members, but all other employee associations within the City. Awarding attorneys' fees in such cases encourages employee associations to enforce the MMBA, even when the financial burden of filing a lawsuit outweighs any possible recovery.

Court of Appeal Denies Unemployment Benefits to Employee Discharged for Dishonesty

On September 12, 2014, the California Court of Appeal in Irving v. California Uninsurance Appeals Board denied a school district employee unemployment benefits because he was discharged for misconduct. The court found the employee took excessive breaks on four occasions and falsified time records.

Unemployment Insurance Code section 1256 disqualifies employees for unemployment benefits if the employee has been discharged for misconduct. Here, the employee admitted taking four different breaks exceeding the allowable 50 minutes. He also admitted falsely reporting his break time on the District's time records. The court disregarded that other employees had also taken breaks longer than 50 minutes. The court stated it is "legally irrelevant" that other employees may have engaged in similar misconduct when determining eligibility for unemployment benefits because of the dishonesty allegation.

Ninth Circuit Rules Peace Officer's ADHD is Not a Disability Under the ADA

On August 15, 2014 in Weaving v. City of Hillsboro, the Ninth Circuit ruled a police officer's attention deficit hyperactivity disorder was not a "disability" under the Americans with Disabilities Act. The court upheld the officer's termination for work-related problems caused by his ADHD.

In Weaving, the City terminated an officer for not getting along with peers and subordinates. The City alleged he "created and fostered a hostile work environment" and had problems with interpersonal communication. The officer argued his ADHD impaired his ability to work and interact with others, and qualified as disability under the ADA. He argued the City terminated him for his disability in violation of the ADA.

The court ruled his ADHD did not constitute a "disability" under the ADA because his condition did not severely impair his ability to work and interact with others. The court found he was a skilled police officer and supervisors had selected him for high-level assignments. Also, his problems interacting with others did not rise to the level of a disability. Asserting a disability on this basis requires such severe impairment that the subject is barely functional and essentially housebound. For these reasons, the court ruled his termination did not violate the ADA.

6th Appellate District: Reversal for Wrong Standard Applied

In Rodriguez v. City of Santa Cruz, the Sixth Appellate District ruled against an order from the superior court denying a petition. The petition was filed by Josafat Rodriguez Jr., a former Santa Cruz police officer, who applied to the City of Santa Cruz for industrial disability retirement. He claimed a psychiatric disability due to post traumatic stress disorder (PTSD). After the City denied his application, he challenged the ruling by filing a "Petition for Writ of Mandate." This petition was subsequently denied by the superior court. In deciding against the court's ruling the appellate court held that the wrong standard of review had been applied.

The appellate court explained that in reviewing the City of Santa Cruz's decision, the trial court was required to use its independent judgment. This however, is not the standard that was actually applied. In lieu of applying its own independent judgment the court deferred to the findings of an Administrative Law Judge who decided on behalf of the City of Santa Cruz, that the petition was not credible and that his claim should be denied. In reviewing the statement of decision of the trial court, it was evident that instead of applying its own independent judgment, it rendered a decision on the grounds of its determination that there was sufficient evidence to support the Administrative Law Judge's finding. In addition the trial court failed to articulate its independent findings in regards to key issues.

Ultimately, the appellate court ruled that while referencing a standard of independent judgment, this standard was not actually applied when determining whether to grant Mr. Rodriguez's petition. For that reason the order denying the petition was ruled against. This ruling emphasizes the importance of applying and adhering to the proper standards, as it relates to review.

Court of Appeal Enforces One-Year Discipline Limitations Period Even Though Officer's Identity Unknown

On August 25, 2014, the California Court of Appeal issued a decision in Pedro v. City of Los Angeles. The court held the department's ignorance of an accused officer's identity does not delay the one-year statute of limitations for disciplinary actions.

In Pedro, a man alleged an officer conducted private business on two occasions. He also alleged the officer treated him discourteously. The department charged the officer with using a city vehicle to inappropriately transport a member of the public, discourteous treatment of the public, and making a misleading statement to a supervisor. The department temporarily relieved the officer from duty more than a year after the man complained to the department.

The court granted the officer's writ of mandate challenging the allegations. The court found the allegations were time-barred. Under the Peace Officer Procedural Bill of Rights Act, the one-year period begins to run when a person authorized to initiate an investigation discovers, or with reasonable diligence should have discovered, an allegation of misconduct. The court ruled the limitations period for the allegations of misusing a city vehicle and discourteous treatment began when the man complained to the department. Although the officer was not identified as the subject of the complaint until a later date, the court held the department could have discovered the officer's identity with reasonable diligence. The court also held the limitations period for the misleading statement began when the officer made the statement, not when the department determined the statement was misleading.

Federal Judge Rules California's 10-Day Waiting Period for Gun Purchases Unconstitutional in Certain Cases

Today, a federal judge ruled California's 10-day waiting period is unconstitutional for gun owners who have already passed a background check and have a permit or certificate of eligibility to own a gun. This ruling applies to purchasers who own a gun and have already passed a background check, purchasers with concealed-carry permits, and purchasers who have a state certificate of eligibility to own a gun. First-time gun purchasers are still subject to the 10-day waiting period. Judge Anthony W. Ishii stated: "the Court emphasizes that it is expressing no opinion on the constitutionality of the 10-day waiting period in general or as applied to first time California firearms purchasers." The court ruled the waiting period burdens the right to keep and bear arms, and the reasons for the waiting period did not justify the burden in certain circumstances. Judge Ishii stayed his ruling for 180 days to allow California to change its laws. This case marks a significant victory for Second Amendment rights.

Judge Ishii's full opinion can be found here.

California Employers Face Class Action Liability for Failing to Reimburse Work-Related Cell Phone Use

On August 12, 2014, the California Court of Appeal held in Cochran v. Schwan's Home Service, Inc. that California employers face class action liability if they fail to reimburse employees for work-related cell phone use. Employers must reimburse a reasonable percentage of employee cell phone bills, regardless of the cell phone plan or who pays the bill.

In Cochran, customer service managers of Home Service filed a class action lawsuit alleging the company failed to reimburse them for work-related cell phone use. The class included 1,500 employees.  Labor Code section 2802 requires employers to indemnify employees for "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer..."

The Court stated: "It does not matter whether the phone bill is paid for by a third person or at all. In other words, it is no concern to the employer that the employee may pass on the expense to a family member or friend, or to a carrier that has to then write off a loss." The Court found section 2802 is aimed at preventing employers from passing on operating expenses. Also, the Court held employers should not intrude into the private lives of their employees to find out how they manage their finances. While such details may affect each employee's recovery, it is irrelevant in determining employer liability under section 2802. Employers must reimburse employees for a "reasonable percentage" of their cell phone bills if they use their cell phones for work. Failure to do so may subject employers to class action liability for all affected employees.

Court of Appeal Ruling Requires Prosecutors to Review Confidential Police Personnel Files

On August 11, 2014, the California Court of Appeal held in People v. Superior Court prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision places the burden of identifying Brady information on the prosecutor. In addition, it narrows confidentiality protections for officers' personnel files.

This case delivered a blow to officers' confidentiality interests in their personnel records. In Brady, the U.S. Supreme Court announced a rule requiring the prosecution to disclose evidence that is favorable and 'material' to the defense. Such evidence includes past alleged officer misconduct contained in confidential personnel files. California state law provides protections against disclosure of such information in civil or criminal proceedings by court order. Before disclosure, the court must conduct a private 'in camera' review of the officer's personnel file to determine if the information must be provided to the defense.

Public agencies employing peace officers are generally responsible for reviewing personnel files for possible Brady information relevant to the defense. This case places the burden of review on the prosecution.

The Court divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify information subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense. The Court held Penal Code section 832.7(a) does not preclude prosecutorial access to officer personnel files for Brady purposes. The Court noted that because police are considered part of the "prosecution team," the two agencies can share personnel files without violating personnel file confidentiality laws.

This case has far ranging implications for law enforcement. Unless overturned, prosecutors will be allowed to routinely inspect peace officer's personnel records for Brady purposes and be required to file a Pitchess motion to have Brady material disclosed to the defense. This game changing decision will result in unnecessary disclosures to the prosecution and deprive officers of the ability to challenge. The court decidedly shifted the balancing of interests against officers' privacy rights. Look for this decision to trigger revisions to your local Brady policy. Request to participate in any policy revisions.

PERB Rules City of Palo Alto Failed to Meet and Consult Over Impasse Procedure Modification

On August 6, 2014, PERB issued a decision in City of Palo Alto. This ruling is significant for public employees for two reasons. First, the decision confirms that meet and consult obligations under Government Code section 3507 the same as the meet and confer obligations under section 3505. Second, this holding expands the meet and confer obligations to impasse rules and procedures.

In mid-July 2010, the City of Palo Alto proposed to repeal interest arbitration procedures in the City Charter for police and firefighter employees. The City planned to place the measure on the ballot for voters. International Association of FireFighters, Local 1319, AFL-CIO representatives demanded to meet and confer with the City about the rule modifications. The City refused to meet with Local 1319. The City claimed interest arbitration was a permissive, not a mandatory, subject of bargaining and the meet and confer obligations did not apply. Instead, the City offered to address Local 1319 representatives' concerns during the public comment periods at its regular public meetings. After holding public meetings, the City approved the measure to repeal interest arbitration from negotiation procedures.

PERB held the City failed to meet and consult in good faith under section 3507 by refusing to meet with Local 1319. PERB held the duty to consult under section 3507 is the same as the meet and confer duties under section 3505. Section 3507 requires public agencies to provide reasonable written notice to each employee organization affected by the proposed agency rule or modification, and afford each organization a reasonable opportunity to meet and discuss the rule before adoption. The parties must meet and confer for a reasonable period of time and attempt to reach an agreement. While the Supreme Court, PERB, and California courts do not require employers to meet and confer regarding impasse procedures under section 3505, employers must meet and consult on these subjects under section 3507.

Court Rules No Qualified Immunity for Officer Accused of Deleting Video

On August 5, 2014, a U.S. District Court for the Eastern District of California held in Crago v. Leonard that an officer was not entitled to qualified immunity in a First Amendment lawsuit. The plaintiff, a probationer, alleged the officer violated her First Amendment rights when he did not allow her to record a search.

The circumstances in this case began when an officer received information that the plaintiff stole metal and a vehicle battery. The officer knew the plaintiff was on searchable probation and went to her house. He found her digging through her purse in the garage. He searched her purse and found a pipe and methamphetamine. The plaintiff alleged the officer seized her laptop computer after she told him she was recording the search. She further alleged the officer deleted the recording and said recording was not allowed.

Qualified immunity applies unless the official's conduct violated a clearly established constitutional right. The "First Amendment right to film matters of public interest" encompasses an individual's right to record police officers in the course of their duties. Other courts have held police officers may refuse recording if it interferes with the performance of those duties. However, no evidence was presented to the court to show the recording in this case interfered with the officers duties. As such, the court found the officer failed to establish his entitlement to qualified immunity.

Ventura County Pension Initiative Barred from November Ballot

On August 4, 2014, Ventura County Superior Court Judge Kent Kellegrew tentatively decided to issue an injunction barring the initiative to phase out Ventura County's pension system from appearing on the November 2014 ballot. The ruling has significant statewide implications for counties that participate in CERL.

The initiative seeks to withdraw Ventura's participation in the County Employees Retirement Act of 1937. This would put future Ventura County employees into a 401(k)-type retirement savings plan rather than the benefit plan covering current employees. The court held Ventura county cannot 'opt out' or terminate its participation in the Act based on a countywide voter initiative.

When the Legislature enacted the Act, it permitted individual counties to choose to participate. When Ventura County chose to participate in the Act, it agreed to follow the rules established by the Legislature. The Legislature only allows a county to terminate participation in the Act using the procedures set forth in Government Code sections 31564 and 31564.2. These procedures do not allow a county to opt out of the Act using a countywide voter initiative.

The court held allowing this measure to be considered on the November ballot would only result in wasted public resources. Even if the voters adopted the initiative, the measure could not be implemented because the initiative did not comply with Government Code sections 31564 and 31564.2.

In addition, the initiative fails on other grounds. The court held the initiative violates the single subject requirement imposed by the California Constitution.

On Wednesday, August 6, 2014, the Ventura County Taxpayers Association said it will not appeal Judge Kellegrew's August 4 ruling. This ruling marks a significant victory in preserving pension rights for county employees.

The ruling is unique as a pre-election challenge victory. After the superior court denied a pre-election challenge to a retirement-related Menlo Park initiative, most victories, such as those in San Jose and Pacific Grove successfully challenged initiatives after the election. This win helps establish that even highly unusual pre-election challenges can thwart attacks on retirement security.

NLRB Ratifies Board Actions Taken During Period of Invalidly Appointed Board Members

On July 18, 2014, the National Labor Relations Board ratified all Board actions taken during the period of invalidly appointed Board members. On June 26, 2014 the Supreme Court held in Noel v. Canning that President Obama invalidly appointed NLRB board members. The invalidly appointed members served on the Board between January 4, 2012 and August 5, 2013. After the Supreme Court's ruling, all Board actions came under scrutiny because the Board lacked a quorum. The Board has now ratified all actions taken during that period.

Specifically, the Board stated all administrative, personnel, and procurement matters were timely and appropriate. The Board expressly authorized the selection of Regional Directors Dennis Walsh, Margaret Diaz, and Mori Rubin. The Board ratified the selection of Administrative Law Judges Kenneth Chu, Christine Dibble, Melissa Olivero, Susan Flynn, and Donna Dawson. The Board also authorized the restructuring of various Field Offices, and the restructuring of Headquarters' Offices. This ratification is to remove all doubt about the validity of the Board's actions taken during the period of invalidly appointed Board members.

PERB: "Economic Exigency" Not Enough to Declare Impasse

In Selma Firefighters Association, IAFF, Local 3716 v. City of Selma, the Public Employment Relations Board ("PERB") took a hard line against employers’ citing economic exigency to declare impasse.

The City of Selma engaged in MOU negotiations with Selma Firefighters’ Association. During the bargaining process, the City abruptly ended negotiations and declared impasse. The City imposed it’s last, best, and final offer to the Selma Firefighters’ Association, claiming economic exigencies and a budget deadline warranted the impasse.

The City argued this budgeting deadline was relevant because the MOU must be agreed to prior to the next year’s budget being adopted. PERB found against the City. The Board held economic exigency did not warrant the City of Selma to declare impasse and impose its last, best, and final offer. In fact, the Board explained “it has long been noted that such economic exigency provides no justification for suspending the duty to bargain in good faith.” The Board also held an impending budget deadline did not justify the bargaining impasse. The Board ruled collective bargaining has no necessary linkage with the budgetary process.

This decision strengthens employee groups' bargaining position. The case creates a clear precedent that arguments like those utilized by the City of Selma are improper. Employers attempting to justify unilateral action based on claimed “fiscal emergencies” are not operating under an exception to their bargaining obligation. Additionally, an agreement does not need to be reached before a City’s final budget is adopted for the upcoming year.

9th Circuit: LAPD Retaliated Against Officer for FLSA Testimony

In Avila v. LAPD, the Ninth Circuit ruled the Los Angeles Police Department violated the FLSA’s anti-retaliation clause when it fired a “model” officer after testifying against the department in a fellow officer’s FLSA case. The FLSA anti-retaliation provision protects employees from discharge or discrimination based on giving testimony in any FLSA proceeding.

LAPD terminated Avila after he testified in a FLSA lawsuit brought by fellow officer, Edward Maciel, who sought overtime pay for working through his lunch hours. Avila testified he periodically worked through his lunch break and did not claim overtime because it was a common practice in the department. After an investigation, the LAPD Board of Rights recommended termination. Avila had no record of discipline.

The court emphasized the sole issue before the jury was whether LAPD’s reason for firing Officer Avila was pretext, not whether LAPD could fire the officer for failing to report overtime or whether Avila’s testimony could be used in an administrative hearing. Thus, the court determined LAPD could not support any viable argument that Avila would not have been terminated if he had not testified at Maciel’s trial. However, the court stated it would not decide whether the use of an employee’s trial testimony was entirely forbidden in an adverse action where the employer has other evidence of the alleged infraction.

Ultimately, the decision confirms the protection afforded to public employees who enforce the FLSA. Avila was awarded $579,400 in attorney fees and $50,000 in liquidated damages.

Illinois Supreme Court: Pensions Protected By State Constitution

In Kanerva v. Weems (July 3, 2014), the Illinois Supreme Court ruled health-insurances subsidies for retired state workers are protected under the Illinois Constitution. The ruling poses a challenge to Illinois’ recent pension reform legislation and may force the State to consider raising revenue rather than cutting benefits.

Recently, the State attempted to reform the pension system by imposing healthcare insurance premiums on its retired workers, reducing cost-of-living increases for pensions, raising retirement ages, and limiting the salaries on which pensions are based. Retirees challenged a recent amendment to the State Employees Group Insurance Act, arguing it violated pension protection clause of the Illinois Constitution. The high court agreed, finding the pension protection clause applies to an Illinois public employer’s obligation to contribute to the cost of health care benefits for employees covered by one of the state retirement systems.

In a similar case, David E. Mastagni and Isaac S. Stevens, obtained a decision in the Los Angeles County Superior Court for the Los Angeles City Attorneys’ Association (LACAA). They argued the City of Los Angeles’ freeze ordinance, which capped retiree medical premiums at $1,190 with no increases, unconstitutionally impaired a contractual obligation to LACAA’s members because a maximum medical plan premium subsidy is a vested right. The court agreed, finding the freeze ordinance was an impairment of a vested right to a substantial or reasonable benefit and issued a writ of mandate directing the City to compute and provide the health insurance premium to LACAA’s members without regard to the City’s freeze ordinance.

U.S. Supreme Court Rules President Obama Invalidly Appointed National Labor Relations Board Members

On June 26, 2014, the U.S. Supreme Court decided NLRB v. Noel Canning. The Court set aside a National Labor Relations Board ("Board") order because the Board lacked a quorum when it issued the order. The Court ruled the Board lacked a quorum because President Obama invalidly appointed three of the five Board members. This decision may impact other cases decided by the unlawfully appointed Board members.

The case began as a labor dispute between a labor union and Pepsi-Cola distributor Noel Canning. The Board ruled the distributor unlawfully refused to execute a collective-bargaining agreement with the labor union. The Board ordered the distributor to execute the agreement and compensate employees for any losses. The distributor challenged the Board's order, arguing the Board could not take legal action because the President invalidly appointed three of the five Board members. Three lawfully appointed Board members are required for the Board to take any action.

President Obama appointed the three Board members on January 4, 2012 during a three-day Senate recess. Interpreting the Constitution's Recess Appointments Clause, the Court held a three-day recess is too short to trigger the President's recess-appointment power. Since the President invalidly appointed three of the five Board members, the Board lacked a quorum when it ordered the distributor to execute the collective-bargaining agreement and compensate employees for any losses.

This ruling may have far-reaching consequences. Many cases decided by the invalidly appointed Board members could be affected. The Board Chairman, Mark Gaston Pearce, stated the Board now has a quorum of validly appointed Board members and the agency is analyzing the impact of the Court's decision on other cases.

Court of Appeal Blocks Criminal's Attempt to Bypass Pitchess

In People v. Davis (Cal. Ct. App., June 12, 2014) 14 Cal. Daily Op. Serv. 6496, an appeals court held a convicted criminal could not bypass the Pitchess process on appeal.  The defendant attempted to get access to a peace officer's personnel file to try to claim the court made a mistake when it did not grant a Pitchess motion before trial.  The court decided he did not have a right to independent appellate review concerning a post-judgment Brady order. 

Instead, the court decided even in cases where a defendant can get discovery after a trial, he must comply with the Pitchess v. Superior Court, procedure and requirements.  The requirements include showing that the discovery sought is material to pending litigation.

US Supreme Court: Public Employee Testimony Protected By First Amendment

On June 19, 2014, in Lane v. Franks, the U.S. Supreme Court ruled an employee’s testimony was protected by the First Amendment because it was a citizen’s speech on a matter of public concern.

Edward Lane directed a program for underprivileged youth at Central Alabama Community College. Lane audited the program’s expenses and found an employee, Suzanne Schmitz, had not been reporting for work. Lane terminated Schmitz’ employment and testified against her in federal court. Schmitz was sentenced to 30 months on charges of mail fraud and theft.

After the trial, the college’s president, Franks, fired 29 employees, including Lane. Franks claimed the action was an attempt to fix the college’s budget. He then rehired all but two of the employees. Franks did not rehire Lane.

In response, Lane filed a civil rights lawsuit. Lane claimed Franks violated the First Amendment by firing him in retaliation for testifying against Schmitz. If a public employee speaks in the course of their ordinary duties, the employee is not speaking as a citizen for First Amendment purposes. But in this case, the U.S. Supreme Court unanimously ruled Lane’s sworn testimony was outside the scope of his normal duties and entitled to First Amendment protection.

The Court also ruled the testimony was on a matter of public concern.  If a public employee speaks on a matter of public concern, the government must have adequate justification for treating the employee differently. Whether speech is a matter of public concern turns on the content, form, and context of the speech.

Here, the Court held corruption in a public program and misuse of state funds are matters of significant public concern. Speech by public employees related to their employment holds special value because those employees gain knowledge of matters of public concern through their employment.

Because the Court ruled the testimony was a public concern, it then decided if the college lacked adequate justification for firing Lane. The college did not assert or demonstrate any government interest for their treatment of Lane. Therefore, the Court reversed and remanded for further proceedings.

PERB Rules County Rushed to Declare Impasse

In SEIU Local 721 v. County of Riverside, the Public Employment Relations Board ("PERB") took a hard line against employers that rush to declare impasse.

SEIU and Riverside County started negotiations over a new MOU in late March 2009.  The existing MOU was set to expire on June 30, 2009.  The County sought significant economic concessions.  On June 22, the County presented SEIU with a complete proposed MOU. 

SEIU responded with various counteroffers.  However, the County abruptly ended negotiations and declared impasse.  The County provided several reasons for declaring impasse, including that it could not come up with a counterproposal on an issue regarding stewards' pay.  SEIU responded that the steward's pay issue was not a deal-breaker, and that it was willing to stay all night to complete negotiations.

The County met with SEIU on July 27, but it refused to accept any offers from SEIU.  The County informed SEIU it believed mediation and factfinding would be fruitless and that it would be imposing its LBFO on July 30.  However, the County also said it would be open to negotiations after July 30.

SEIU and the County met on August 10 and 19 and agreed on a new MOU.  The MOU had an effective date of August 1 and eliminated step increases.  But when SEIU learned in September that the County had refused to pay step increases to those employees entitled to them in July, it filed an unfair practice charge.

PERB ruled negotiations were not at a genuine impasse on July 27.  It found the County declared impasse solely because it wanted to take unilateral action.  PERB ordered the County to provide back pay.  PERB also ruled it did not have to apply the "totality of the circumstances" test for bad faith.  Instead, the County's unilateral change of wages (by elimination of the July step increases) was a per se violation.

This decision strengthens employee groups' bargaining position.  When challenging an agency's declaration of impasse, employee organizations do not have to show bad faith by the agency.  Instead, employee organizations only need to show the declaration of impasse was premature.

Court of Appeal Denies Workers' Compensation Benefits for Officer's Injury During "Hold Over" Shift Commute

On May 19, 2014, the California Court of Appeal in Lanz v. Workers' Compensation Appeals Board ruled an officer's family was not entitled to workers' compensation benefits because an employee's commute after a "hold over" shift fell outside his ordinary course of employment.

In Lanz, a Pleasant Valley prison correctional officer was "held over" from his regular shift and worked 16 hours.  The officer was killed in a car accident during his commute home.  The officer's dependents filed claims for workers' compensation benefits.

Under the "coming and going" rule, an employee is not within the scope of employment when driving home or to work unless undertaking a "special mission."  A "special mission" is a specific instance when an employee is sent by their employer to do something unusual for the purpose of furthering business. 

The Court considered the location, timing, and nature of the officer's task during his hold over shift.  The hold over shift directly followed the officer's regular shift and was at his regular place of work.  The hold over shift affected the officer's commute only by changing the time of his drive home, but not the distance or location.  The Court held the officer's hold over shift was a common occurrence, and not a "special mission."  Therefore, his commute was not in the course of employment and his family was denied workers' compensation benefits.

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."

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.

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.

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.

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.

Court of Appeal Finds Department May Have Unlawfully Terminated Officers

On March 20, 2014, the California Court of Appeal found the Orange County Sheriff's Department may have violated officers' POBR rights when it failed to provide a pre-termination hearing after a potentially pre-textual layoff.

The officers were "laid off" from their positions at the Sheriff's Department after the Department re-organized to cut spending.  The officers received a formal termination letter stating the Department faced economic difficulties and the lay-offs were not based on performance.  However, the officers suspected their terminations had to do with their past disciplinary records.  The termination letter informed the officers they were entitled to a "Liberty Interest Hearing" if they responded within 14 days.  Emails exchanged between the human resources representative and one officer explained the Liberty Interest Hearing would not include any presentation of evidence or witnesses.  None of the officers responded because they didn't believe the non-evidentiary Liberty Interest Hearing would result in reinstatement.

One day after the officers were terminated, the Sheriff held an off-site leadership retreat and showed a PowerPoint presentation.  The PowerPoint included slides suggesting the key to improving the Department was getting the right people "on the bus," and the wrong people "off the bus."  The officers filed a lawsuit claiming they were terminated for punitive reasons, rather than the budgetary reasons asserted by the Department.  They argued the Department's decision to terminate them constituted punitive action without providing them with the opportunity for an administrative appeal.  POBR requires the opportunity to a full evidentiary hearing for officers terminated for punitive reasons. 

The Court recognized POBR requires a full evidentiary hearing when officers are terminated for punitive reasons.  The Court stated a full evidentiary hearing usually includes sworn testimony, cross-examination of witnesses, and presentation of argument by the public agency to which the officer could respond.  Also, the public agency bears the burden of proof.  The process offered by the Department as presented by the human resources representative fell short under POBR.

In addition, the Court stated this case had many of the hallmarks of a pretext case.  Warning signs for a pretext case are layoffs that do not involve massive layoffs based on fixed rules such as seniority, a relatively small number of officers terminated, and when the decision-maker is not bound by seniority rules when choosing whom to terminate.  On these grounds, the Court concluded the trial court erred in dismissing the case.

BART POA Wins Injunction Protecting Identity of BART Officer Involved in Critical Incident

In BART Police Officers Association v. Bay Area Rapid Transit District et al., the BART Police Officers’ Association (BPOA) successfully defended the privacy rights of its members and prevented the unlawful disclosure of the name of an officer under investigation in a critical incident.

The Department sought to release the name of an officer identifying the officer as the subject of a disciplinary investigation following a use of force incident that gained widespread notoriety.

Following a use of force incident, a citizen made a complaint against the officer, and the department made statements to the media that the incident was under investigation. The Department informed the officer that they intended to release the officer’s name to the media, identifying him as the officer under investigation for the incident. The Department informed BART POA it intended to release the officer’s name to the press.

BART POA President Keith Garcia immediately moved to protect the officer’s privacy. BART POA sent a cease and desist letter to the Department and prepared an application for a temporary restraining order. Then the POA secured an agreement from the District to preserve the officer’s privacy until the dispute could be heard by a court on an expedited basis.

Then, on April 17, 2014, the Alameda Superior Court and the parties agreed to a preliminary injunction protecting officer privacy until at least 30 days after the California Supreme Court decides two closely related cases.

The California Supreme Court is considering two important cases about peace officers’ privacy rights. In Federated University Police Officers Association v. Superior Court, the Court will decide whether or not the California Public Records Act can be used to force disclosure of peace officers’ names in a report about the use of pepper spray at UC Davis in 2011.

In Long Beach Police Officers Association v. City of Long Beach, the Court will decide whether the California Public Records Act requires agencies to release the names of officers involved in officer-involved shootings. Together, these cases will establish the legal foundation for how these information requests must be treated in the future. In the meantime, officers can protect their rights by pursuing injunctions like the one BART POA won in this case.

Mastagni Law attorneys Kevin A. Flautt, David E. Mastagni, Jeffrey R. A. Edwards, and Brendon P. Parenti represented BART POA in the matter.

Court Strikes Down San Jose Mayor Chuck Reed’s Challenge to Attorney General’s Summary of His Pension Reform Act

On March 17, 2014, a Superior Court judge rejected Mayor Chuck Reed’s challenge to the Attorney General’s summary of his “Pension Reform Act of 2014.”  Reed claimed the first sentence of Attorney General Kamala D. Harris’s summary was false, partial, and argumentative.  The Court analyzed the Attorney General’s sentence word-by-word, and found it was not false, misleading, or partial in any way. 

Attorney generals summarize each ballot initiative for voters in 100 words or less.  The summary appears on the initiative petition circulated among voters.  If a minimum number of voters sign the initiative petition, the initiative appears on the ballot.  The summary gives voters a sense of the measure’s purpose without creating prejudice for or against the proposed measure.  Attorney General Kamala D. Harris wrote the title and summary for Reed’s Pension Reform Act.  Reed challenged the first sentence of the summary, which stated:  “Eliminates constitutional protections for vested pension and retiree healthcare benefits for current public employees, including teachers, nurses, and peace officers, for future work performed.” 

First, Reed claimed the word “eliminates” was misleading because the initiative does not repeal or replace any provision of the state Constitution.  The Court agreed the initiative does not eliminate any provision of the state Constitution.  But the summary does not state the initiative eliminates constitutional provisions – the summary states the initiative eliminates constitutional protections.  The Court found the Attorney General’s characterization was accurate. 

Second, Reed argued the phrase “constitutional protections” is false and misleading because the California Rule granting public employees vested pension rights in retirement benefits is not constitutionally based.  The Court replied, “If the California Supreme Court says the California Rule’s protections are constitutionally based, they are.”

Next, Reed ignored California Supreme Court precedent a second time, arguing the word “vested” is false and misleading.  Reed claimed the word “vested” only describes benefits that have already been earned through past service, not benefits earned through future service.  Again, the California Supreme Court has used the term extensively to describe benefits earned through future service.

Finally, Reed challenged the Attorney General identifying “teachers, nurses, and peace officers” as affected public employees.  Reed claimed the Attorney General cherry-picked three very popular job classifications of public employees to discourage voter support.  In fact, those three job classifications make up close to half of all public employees.  The Court found the Attorney General accurately and concisely identified the affected employees for voters.  

The Court's decision marks another blow to Mayor Chuck Reed's initiative, which seeks to eliminate fundamental constitutional protections for California's public employees. 

Court of Appeal Rules CPRA Does Not Require Public Agencies to Disclose Officials’ Communications on Personal Accounts

On March 27, 2014, the California Court of Appeal held the California Public Records Act (CPRA) does not require public agencies to disclose officials’ communications about public business on personal email and cell phone accounts.  The Court held communications stored solely on private accounts are outside the reach of public records requests under the CPRA.   It is becoming increasingly common for public officials to conduct public business using private accounts.  While members of the public may seek disclosure of officials’ voicemails, text messages, and emails stored on public agencies’ accounts, communications on private accounts are protected from CPRA requests.

In June of 2009, Ted Smith requested, “voicemails, emails or text messages” on personal electronic devices about “matters concerning the City of San Jose” on private electronic devices owned by Mayor Chuck Reed, members of the City Council, and their staff.  The City agreed to produce records stored on its servers and those to or from private devices using City accounts, but refused to provide communications stored solely on personal accounts.  Smith responded by filing a lawsuit in Santa Clara County Superior Court.  The Superior Court sided with Smith and granted his request. 

The Court of Appeal overruled the Superior Court in favor of the City.  The Court found officials’ communications stored solely on personal devices don’t fall within reach of CPRA requests because they are not “owned, used, or retained” by the public agency.  The Court acknowledged public policy concerns of the public’s right to know versus the burden on the agency to provide the information.  However, the Court determined the Legislature is better suited to make such public policy decisions.  

The Court acknowledged public agencies have the right to create its own rules for disclosure of communications related to public business.  In fact, the City of San Jose adopted a resolution addressing this very issue after Smith filed his lawsuit.  Resolution No. 75293 was adopted on March 2, 2010.  The resolution revises City Council Policy 0-33 and allows public access to all communications of the mayor, City Council members, or their staff, regarding public business on private devices.  Mayor Chuck Reed himself signed the resolution.  However, the Court stated that the resolution was not relevant to the Court’s interpretation of the CPRA.

The full court opinion is posted here.

Court of Appeal Rules Overtime is Defined By Collective Bargaining Agreement

The California Court of Appeal issued an opinion in Vranish v. Exxon Mobil Corporation. The Court ruled collective bargaining agreements (CBA) meeting certain requirements define overtime for covered employees, not the California Labor Code.

In Vranish, Exxon Mobil employees regularly worked 12-hour shifts. They worked 7 consecutive days followed by 7 days off. The employees were represented by a labor organization and had a CBA. Under the CBA, employees only received overtime compensation if they worked more than 12-hours in a workday, or more than 40 hours in a workweek. However, Labor Code section 510 states employees must receive overtime pay if they work more than 8 hours in a single day.

The employees filed suit to recover overtime pay for regularly working more than 8 hours in a workday. But the Court ruled the Labor Code’s definition did not apply to the employees. Labor Code section 514 states the Labor Code’s definition of overtime does not apply to employees covered by a valid CBA meeting certain requirements. Since the CBA in this case met all of the requirements under section 514, the CBA defined overtime rather than the Labor Code.

Ninth Circuit Rules Fire Department Dispatchers and Aeromedical Technicians Are Entitled to Standard Overtime Pay Under FLSA

On March 18, 2014, the Ninth Circuit issued an opinion in Haro v. City of Los Angeles. The Ninth Circuit found standard overtime rules under the Fair Labor Standards Act (FLSA) apply to fire department dispatchers and aeromedical technicians. This case distinguishes fire department dispatchers and aeromedical technicians from firefighters in calculating overtime.

Under the FLSA, employees who work more than 40 hours in a workweek are entitled to overtime pay. However, Section 207(k) exempts certain job classifications from this general rule. Section 207(k) requires certain employees, such as firefighters, to work a total of 212 hours in a 28-day period before earning overtime pay. In this case, the City of Los Angeles classified dispatchers and aeromedical technicians as employees “engaged in fire protection.” Classifying dispatchers and aeromedical technicians as employees “engaged in fire protection” subjected them to the same overtime rules as firefighters.

L.A. City dispatchers and aeromedical technicians filed suit. They argued that they are not actively engaged in fire protection as defined by the FLSA, and should receive standard overtime pay. The City argued because dispatchers and aeromedical technicians contribute in a direct and vital manner to the fire department’s suppression of fires, Section 207(k) applies.

Although dispatchers and aeromedical technicians occupy a vital role in fighting fires, they are not employees “engaged in fire protection” as defined by the FLSA. The Court pointed out dispatchers do not actively engage in fire suppression. Rather, dispatchers send firefighters to the scene to suppress the fire. Similarly, the Section 207(k) exemption does not apply to aeromedical technicians. Their duties include medical support, setting up equipment, loading hoses and fittings onto helicopters, filling helicopters with water, and establishing secure landing sites. These are not duties of an employee “engaged in fire protection.” Since dispatchers and aeromedical technicians are not exempt under the FLSA, they were awarded backpay for unpaid overtime.

The City has participated in much FLSA litigation in recent years. The litigation caused the City to reconsider its pay practices for many employees, but the City never investigated its pay practices for dispatchers and aeromedical technicians. The Court concluded the City willfully violated the FLSA by failing to investigate whether dispatchers and aeromedical technicians were exempt under Section 207(k).

Supreme Court to Resolve What Counts As a Personnel File

Government Code section 3255 requires employers give firefighters an opportunity to review any adverse comments before they can be placed in the firefighters "personnel file, or any other file used for any personnel purposes by his or her employer."  Likewise, Government Code section 3256.5 give firefighters the right to inspect their files and request corrections.  But, some employers have tried to skirt around the law by making adverse comments in secret files or other places.  Now the California Supreme Court will weigh in on what constitutes a personnel file under FFOBR when it hears the appeal of Poole v. Orange County Fire Authority.

In Poole v. Orange County Fire Authority, the Court of Appeal ruled firefighters have a right under FFBOR to review and respond to personnel comments entered into "daily logs," even though the employer claimed they were not put in the employee's "personnel file."

The case is about a firefighter with the Orange County Fire Authority (OCFA). OFCA keeps personnel files at OFCA's headquarters in Irvine, but a fire captain kept a separate file at the fire station on each of the firefighters he supervised, which he called "daily logs." He used in the preparation of yearly evaluations and did not give firefighters an opportunity to review them before recording them.

When the firefighter found out about the "daily logs," he requested management delete them pursuant to section 3256.5(c).  However, OFCA refused, claiming they were not subject to FFBOR because “while the notes were intended to be used for personnel purposes, they were never ‘entered’ into any file.” The Court of Appeal disagreed, noting firefighters should be able to review the daily logs because the purpose of the law is to “facilitate the firefighter’s ability to respond to adverse comments potentially affecting the firefighters employment status.”

The California Supreme Court granted review on February 26, 2014.