Gov. Brown Signed A.B. 119 Providing California Public Employee Unions Enhanced Access to New Employees

On June 27, 2017, Governor Brown signed Assembly Bill 119 mandating that public employers within PERB's jurisdiction provide recognized labor representatives expanded access to newly-hired employees.  This enhanced access is accomplished by mandating that an employer shall provide the union representative access to new employee orientations and to employee contact information.

Agencies must provide the union notice of any new employee orientation with at least 10 days advance notice.  The employer must also provide the name, job title, department, work location, work, home, personal cellular telephone number, personal email address, and home address of any new employee within 30 days of hire or by the first pay period of the month following hire and a list of that information for all employees in the bargaining unit at least every 120 days unless more frequent or more detailed lists are negotiated between the parties.

The disclosure of contact information is expressly modeled after our Supreme Court's holding in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 90, that the privacy clause of state constitution did not excuse the county from disclosing represented employees' contact information to the union.  The statute also adopts the privacy protections set forth in County of Los Angeles.

The legislation also establishes important bargaining obligations that unions should understand. Government Code Section 3557 provides that upon the request of either party, "the parties shall negotiate regarding the structure, time, and manner of the access of the exclusive representative to a new employee orientation. The failure to reach agreement on the structure, time, and manner of the access shall be subject to compulsory interest arbitration pursuant to this section."  Either party can request arbitration over unresolved access issues within 45 days after the first meeting between the parties or 60 days from the first request to negotiate.  

This legislation was enacted in anticipation of potential changes to or elimination of fair share procedures should the Supreme Court decide to hear another challenge to fair share. In Friedrichs v. California Teachers Association, the Court deadlocked 4-4, leaving in place a Ninth Circuit ruling upholding fair share procedures. Regardless of the fate of fair share, this new law provides labor organizations important new tools to increase their voluntary membership ranks and will equally benefit unions that do not have fair share procedures in place.   

Santa Clara Correctional Officer Vindicated in Mistrial Over Use of Force

On Tuesday, July 25, Santa Clara County Correctional Officer Tim Tri was vindicated when a jury voted 11-1 to acquit him in a use of force case.

Because the jury deadlocked, the judge declared a mistrial.  Tri’s attorney, Erin Dervin from Mastagni Holstedt, told ABC7 that “the eleven jurors are very adamant with us that they saw the case for what it was, that truly Mr. Tri was doing his job, what he’s expected to do and saving his partner.”

Santa Clara Correctional Peace Officers’ Association President Amy Le said, “With this particular case, to me, it seems like a witch hunt.”  She noted Tri should never have been arrested and that Tri was charged three years after the incident, only after a high-profile inmate death.

Erin M. Dervin is an experienced criminal trial lawyer with over 15 years experience as a deputy district attorney where she handled litigation and trials including complex financial crimes, sexual assaults, narcotics, domestic violence and general felony practice and tried over 60 jury trials.  She is a Senior Associate at Mastagni Holstedt.

Appellate Court Holds Disclosure of Names of Officers on the Brady List Unlawful

Earlier this month, the Second District Court of Appeal issued a ruling in Association of LosAngeles Deputy Sheriffs v. Superior Court (“ALADS”) that will change the way many law enforcement agencies use so-called Brady lists. ALADS, the employee organization representing Los Angeles County deputies, challenged the Los Angeles County Sheriff’s Department’s Brady list policy, alleging it violated state law by disclosing peace officer personnel records without a Pitchess order. In so doing, the court distinguished from People v. Superior Court (Johnson) (2015) 61 Cal.4^th 696 wherein our our Supreme Court commended a similar process used to continually notify the district attorney’s office of which officers' personnel records may contain Brady material.  ALADS held that, while the Sheriff’s Department could compile a Brady list for internal use, it could not share that list with prosecuting agencies, or advise those agencies that a deputy was on the list.

This case addressed whether California law protecting peace officer personnel files from disclosure conflicted with prosecutor’s constitutional obligation under Brady v. Maryland (1963) 373 U.S. 83 to disclose to criminal defendants all evidence in their possession favorable to the defense and material on the issue of guilt or punishment. Pursuant to Penal Code 832.7, personnel records and information cannot be disclosed in a criminal proceeding unless the prosecution or defense first files a Pitchess motion, pursuant to Evidence Code sections 1043-45. The Pitchess statutes require the prosecutor or a defendant to file a motion identifying the potential Brady material at issue and showing good cause to obtain information from a peace officer’s personnel records. Upon a showing of good cause, the court then reviews the personnel records at issue and determines what – if anything – must be disclosed.  Johnson held “the prosecution fulfills its Brady obligation if it shares with the defendant any information it has regarding whether the personnel records contain Brady material and then lets the defense determine whether to file a Pitchess motion."  It did not address the obligation to provide a Brady list or Brady tip, nor the legality of providing such information about non-witness officers. 

At issue in ALADS was whether the Sheriff’s Department could disclose to prosecutors the names of deputies who had Brady material in their personnel files without requiring the prosecutors to go through the Pitchess process. The Sheriff’s Department created a Brady list of deputies whose personnel files contained sustained misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment, then proposed to disclose that list to the district attorney and other prosecuting agencies. With that information, prosecutors could then file Pitchess motions to discover the underlying misconduct, or advise the defense of the disclosure, so it could file its own motion. ALADS opposed the proposed policy, on the grounds it violated Penal Code section 832.7, by disclosing personnel records to prosecutors without requiring them to first comply with the Pitchess rules. ALADS sued, seeking an injunction barring the Sheriff’s Department from disclosing to prosecutors its Brady list or any individual on the list to anyone outside the Sheriff’s Department, absent compliance with Pitchess procedures.

The trial court partially granted the injunction ALADS sought, barring the Sheriff’s Department from disclosing the list to prosecutors. However, the trial court authorized the Department to disclose to prosecutors the identity of individual officers on the Brady list, without complying with Pitchess, so long as any disclosed deputy was also a potential witness in a criminal case. ALADS appealed the decision, arguing Penal Code 832.7 did not allow the Sheriff’s Department to disclose the fact that a deputy was on the Brady list absent compliance with Pitchess, even when that deputy was a potential witness in a criminal case.

The appellate court sided with ALADS. The court noted that Penal Code 832.7(a) protects not only personnel records, but “all information obtained from those records.” According to the court, the fact that a deputy had an administratively founded allegation of misconduct was information from his or her personnel records, and was thus protected from disclosure absent compliance with the Pitchess procedure.  Because the information was covered by Penal Code 832.7, the Sheriff’s Department could not disclose it to prosecutors.

This case will impact law enforcement agencies statewide. It prohibits law enforcement agencies from providing Brady lists to prosecutors, and prevents them from disclosing the identity of individuals on such lists absent a court order compelling such disclosure.  Supreme Court review is a distinct possible.

David E. Mastagni Spars with Senator John Moorlach During Committee Hearing on Peace Officer PERB Jurisdiction

Mastagni Holstedt partner David E. Mastagni testified before the Senate Public Employment and Retirement Committee on Monday, July 10, 2017 regarding A.B. 530.

A.B. 530 is a PORAC supported bill introduced by Assemblymember Jim Cooper (D-Elk Grove), a retired sheriff's captain, that allows peace officers to file unfair practice charges at PERB.  This important bill clarifies existing conflicts regarding peace officer jurisdiction to pursue unfair practice charges and avoid the duplicative files required under current law for mixed units and charges affecting both the union and individual peace officers.

During his testimony, Mr. Mastagni and California State Senator John Moorlach from Orange County engaged in a spirited exchange over the efficacy of the bill.

FLSA Provides Individual Liability for Retaliation

In Arias v. Raimondo (9th Cir., June 22, 2017, No. 15-16120) 2017 WL 2676771, the Plaintiff, Arias, brought an action against his employer's attorney, Raimondo, alleging retaliation under the Fair Labor Standards Act (FLSA) arising from the attorney's plan to have Arias taken into custody by U.S. Immigration and Customs Enforcement (ICE) to derail his state court wage claims against his employer, Angelo Dairy.  Arias argued that the lawyer was acting as his employer's agent and retaliated in violation of 29 U.S.C. Section 215(a)(3) by enlisting the services of ICE to take Arias into custody at a scheduled deposition and then to remove him from the United States.

Raimondo’s sole legal defense is that because he was never Arias’s actual employer, he cannot be held liable under the FLSA for retaliation against someone who was never his employee.  The court held the FLSA's anti-retaliation provision was not limited to actual employers, since its unlawful for “any person” to discriminate against any employee for filing a complaint under the FLSA and retaliation claims were different from FLSA wage and hour claims. The court noted, “the FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others…. Such a statute must not be interpreted or applied in a narrow, grudging manner.”

The court clarified that Raimondo's liability was limited the retaliation claims, as a non-actual employer is not liable for substantive wage and hour claims.  In the public employment sector, this decision serves to strength the anti-retaliation protections for public employees enforcing their FLSA rights.  Supervisors who retaliate against public employees for bringing FLSA claims will be subject to individual liability even though they are not the actual employer.  Of course the anti-retaliation provisions also apply to employers, including public agencies.      

Community Rallies After Mastagni Holstedt Targeted with Anti-Cop Vandalism

Law enforcement labor leaders and elected officials gathered Wednesday to take a stand against anti-law enforcement vandalism that was spray painted on the Sacramento headquarters of Mastagni Holstedt on Tuesday night.  The firm has flown the Thin Blue Line Flag under the American flag since February.  There were no incidents until Tuesday night.

David P. Mastagni explained to Fox40 that the vandalism appears to be in response to the firm lowering its Thin Blue Line flag to half mast to honor slain NYPD officer Miosotis Familia, whose funeral was Tuesday.

He said, "She was a beautiful young woman who had a full life ahead of her, she got shot in the head while sitting in a squad car, and the very least that me or any other citizen can do is respect and honor her for her service to her community.”

Interviewed in front of the vandalism, Mastagni noted, "those very words behind me are the words that have been chanted by anti-police antagonists across the country."  The vandalism occurred the same day as Officer Miosotis' funeral events, which some protesters tried to interrupt by blasting the song "F--- tha Police" at mourners.

Sacramento Police Officers Association President Tim Davis said, "It’s demeaning to our officers who put their life on the line everyday to protect our community.  We’re out here to tell officers that they are supported and that we’re not going to stand for this type of message."

Sacramento City Councilmember Steve Hansen helped out to remove the graffiti and told KCRA, "It's never okay and we all as a community have to take part in making sure that this doesn't continue."  Retired San Joaquin Sgt. Pat Withrow also came up to Sacramento to roll up his leaves and lend a hand.

Asked whether he'd take down the flag after the incident, Mastagni said, "Some people just have to stand up for what's right and that's why that flag is in the corner of that parking lot and it will continue to fly at half mast every single time an officer is killed in the line of duty."  The vandalism and the community response was also covered in the Sacramento Bee, the LA Times, and the local CBS affiliate.

Court Upholds Officer's Right to Administrative Appeal of Termination

In 2008, a citizen filed a complaint against San Francisco police officer Morgado. The office of citizen complaints investigated and recommended the Chief impose discipline. The Chief agreed and submitted a complaint against the officer to the City’s police commission. After a full evidentiary hearing which the officer participated in, the Commission decided to impose termination. The officer sued the City in Morgado v. City and County of San Francisco alleging that the City violated the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”) by failing to give him an administrative appeal of the final termination. The trial court agreed with the officer and issued an injunction vacating the termination until he had been provided the opportunity for an administrative appeal of the termination decision. The City appealed.

On appeal, the City argued that the evidentiary hearing at the Commission level effectively served as an administrative appeal of the Chief’s decision to discipline. By providing this evidentiary hearing, the City argued it fulfilled the purposes of the administrative appeal provision of POBR. The Court found a distinction between the Chief’s decision to recommend discipline and the termination actually imposed by the commission. The Court found that while there may be a right for an administrative appeal of an interim-step towards discipline, such as the Chief’s recommendation, ultimately this was not the relevant issue in this case.

The issue here was the ability to appeal the “final” imposition of discipline by the Commission. While the Commission’s evidentiary hearing fulfilled most of the purposes of an administrative appeal, the Commission’s processes ended when it made the final determination to impose discipline. The Court ruled the City should have provided an additional opportunity for independent re-examination of the imposition of termination. The Court stated that such an administrative appeal does not require the same full-scale evidentiary hearing, but merely the re-examination by someone not involved in the initial determination who will make written factual findings.

The City argued alternatively that the administrative appeal provision of POBR was unconstitutional because it restricted the constitutionally granted “plenary authority” of the City over the removal of its officers. The Court found no constitutional conflict, noting POBR constituted only a slight impingement. POBR did not proscribe reasons an officer could be terminated, rather it sets forth minimal procedural rights. The court upheld the Constitutionality of  POBR finding it was narrowly tailored to the purpose of promoting labor relations and created no substantive restrictions on the City’s ability to terminate employees. The Court of Appeal upheld the injunction and affirmed the trial court’s decision.

Fifth Circuit Rules Against Officer's Privacy Rights

Recently, in Coker v. Whittington, No. 16-30679 (May 23, 2017), the United States Court of Appeals, Fifth Circuit, ruled that Bossier Parish, Louisiana, did not violate the constitutional rights of two sheriff's deputies when it terminated them for violating the local Sheriff's Code of Conduct by moving in with each other's wives before getting divorced from their current wives. This ruling has troubling implications for the constitutional rights of law enforcement officers.

The decision, which was short on analysis and long on bias, ruled that the decisions in Obergefell and Lawrence did not apply to the facts of this case to protect the sheriff's deputies. The court held that public employees "necessarily shed some of their constitutional rights as a legitimate exchange for the privilege of their positions." The court also ruled that the Constitution does not protect "sexually inappropriate" conduct which would "mock marriage." 

Unusually, the court did not perform an analysis of whether the deputies' conduct had a nexus to employment. The court simply concluded that because officers' duties include preventing crimes like human trafficking and spousal abuse, the sheriff's deputies' conduct had the potential to "besmirch the reputation of the Sheriff's department and hinder its ability to maintain public credibility." The court did not explain how the crimes of human trafficking and spousal abuse related to the deputies' conduct as consenting adults. 

Interestingly, it is likely this case would have been decided differently in California. The Ninth Circuit has long held that questioning officers about their sex life and/or rendering employment decisions about their sex life violate privacy and associational rights interests and subject the agency to liability unde 42 U.S.C.A. § 1983. Thorne v. City of El Segundo (9th Cir. 1983) 726 F.2d 459, 471.

California's Constitution and state law provides heightened protection for privacy rights and a different view of what is "related to employment." Particularly, California courts have ruled that the critical question is not whether the officer's conduct violated the mores of the public or of the employing agency, but whether such conduct indicates an unfitness for employment with the agency (Warren v. State Pers. Bd., (1979) 94 Cal. App. 3d 95, 104, 156). Further, Yancey v. State Pers. Bd., ((1985) 167 Cal. App. 3d 478), held that “the overriding consideration is the extent to which the employee's conduct results in harm to the public service” (Id. at p. 487), and that "the Legislature did not intend to endow the employing agency with the power to dismiss any employee whose personal, private conduct incurred its disapproval” (Id. at 483.)" 

It is unclear whether the sheriff's deputies intend to appeal the decision at this time. Given the suspect nature of this ruling and Circuit split, the Supreme Court may decide the extent to which an Agency's inquiry into off-duty relationship of police officers exceed scope of state's legitimate interests and violated officer's constitutional rights.  Even if the Fifth Circuit's holding was adopted by the U.S. Supreme Court, such inquiries would still likely be deemed to violate California privacy rights.

PERB Petitions the California Supreme Court for Review of San Diego Initiative to Reduce Pensions

In June 2012 the voters of City of San Diego approved a citizen-sponsored initiative, the "Citizens Pension Reform Initiative" ("CPRI"), amended the City Charter to reduce pension benefits for certain employees of the City.  Unions successfully challenged the measure in PERB as an unfair labor practice.  The Fourth District Court of Appeal reversed the PERB's ruling in Boling v. City of San Diego.   Now the unions and PERB have petitioned for review in the Supreme Court.

Under the MMBA, ballot measures approved by local governing bodies and then by the voters are subject to meet-and-confer requirements. (People ex re. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591.) No published opinion had determined whether Seal Beach applies to citizen initiatives.  

The unions challenged the claim that the initiative was “citizen-sponsored” by arguing that the mayor had aided in the initiative's development and had campaigned for it. The unions also argued that the mayor was attempting to circumvent the MMBA by publicizing and campaigning for the initiative with the public in an attempt to cause them to take up the initiative. Accordingly, the unions argued that because the Mayor was the true driving force behind the CPRI, the ballot was transformed into a "governing-body-sponsored" ballot proposal. This would trigger the “meet and confer” provisions of the MMBA. 

PERB concluded that Seal Beach should apply in the present case based on the mayor’s statutory role in labor relations and common law agency rules supporting a conclusion that his support for the proposition was rendered in his official capacity.  PERB cited the fact that several people occupying elected and non-elected positions in San Diego's government provided support for the CPRI, and were essentially the driving force behind publicizing and writing its provisions. 

The appellate court disagreed holding there was no evidence the CPRI was ever approved by City's governing body (i.e. the City Council), which it cited as a requirement for the measure to be "governing-body-sponsored." The court explained that although the mayor and other City employees had drafted the “proposal”, the citizens ultimately led to it being placed on the ballot. The court further ruled that under the facts of this case, the mayor could not be found to be acting on behalf of the City Council under any agency theory. 

PERB and the unions filed a petition for review with the California Supreme Court.  If review is granted the Supreme Court will determine whether elected official and public agency personnel can circumvent the MMBA requirements to bargain over measures reducing pensions by obtaining voter signatures rather a  city council vote to get on the ballot.