PERB: Sheriff's Department Violated Correctional POA's Rights

In a recent decision, the Public Employment Relations Board found the County of Santa Clara violated the MMBA when it banned the union president from trading shifts with other employees.  Like many employers in public safety, the Santa Clara County Sheriff's Department allows employees to trade shifts to get special days off.  The Santa Clara County Correctional Peace Officers Association president made use of the day trades in part to connect with members working different shifts.  Then, the Department banned the union president from doing so ostensibly because he did not repay a day.  But the Department's reasoning fell apart under scrutiny and the Board held the Department's conduct constituted unlawful interference. 

The Board also disapproved of prior decisions that said interference with a union's rights did not necessarily follow from discrimination against a labor leader.  The Board found prior cases, including, Novato Unified School District, are "contrary to the overwhelming weight of PERB case law on this issue."  Therefore, the Board found the Department's retaliatory conduct also violated the union's rights.

Mastagni Holstedt Senior Associate Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.

New Bill Expected to Provide Peace Officers with Increased Coverage for Injuries

The tragic mass shooting in Las Vegas has affected lives across the country.  This includes over 200 California peace officers who were attending the concert.  Recently, four Orange County deputies filed workers’ comp claims after suffering injuries during the shooting.  According to Orange County officials, peace officers are entitled to benefits if injured while protecting life or property, regardless of whether on or off duty.  However, the benefits require the injury to have occurred while in the State of California.  Orange County denied the deputies’ claims because the injuries occurred in Nevada.

Tom Daley (D-Anaheim) and the Orange County deputies believe Orange County officials are not applying the law correctly, and argue the claims should be covered.  In order to prevent any further denials of claims, Assemblyman Daley is preparing legislation that would erase any ambiguity in the law.  His bill will guarantee coverage to police officers injured while protecting life or property, regardless of where the injury occurred. 

The bill is expected to be introduced in early 2018.  If the bill is successful police officers would receive the benefits of workers’ comp for injuries from engaging in the apprehension of law violators, protecting life or property, or preserving the peace.  Whether the injury occurred outside the State of California will no longer be cause to deny a claim.

Decision Limits Who May Represent Subject Officers During IAs

A recent decision limited a peace officer’s ability to challenge a department’s internal affairs process.  In Barcelona v. California Department of Justice, the court held an employee could not sue his department without showing they were harmed.  Additionally, the court held it was permissible for a department to prevent a witness from being the subject officer’s representative during the interview.

Alan Barcelona was employed by DOJ.  A citizen complaint led to an internal affairs investigation (IA) being opened.  The first person interviewed was the citizen.  During the interview the citizen told investigators that another person, Kasey Clark, witnessed the alleged misconduct.  Mr. Clark was subsequently interviewed as a witness.  Following Mr. Clark’s interview, Mr. Barcelona continued to desire Mr. Clark as his representative.

DOJ did not let Mr. Clark serve as Mr. Barcelona’s representative.  DOJ cited its notice, which said Mr. Barcelona could have any representative not involved in the investigation.  Mr. Barcelona went forward with the interview using a different representative.  Eventually the IA was completed without Mr. Barcelona being disciplined. 

Mr. Barcelona brought a lawsuit challenging DOJ’s policy.  The lawsuit alleged two separate violations.  First, the policy violated Mr. Barcelona’s First Amendment Rights by denying free association.  Second, the policy violated the Public Safety Officers Procedural Bill of Rights (POBR). Mr. Barcelona claimed POBR gave him the right to use Mr. Clark as his representative in the IA.

The court struck down Mr. Barcelona’s First Amendment claim.  According to the court, Mr. Barcelona failed to show an actual or imminent injury to a legally protected interest.  This was because Mr. Barcelona was not disciplined.  Had discipline occurred, he would have standing to challenge DOJ’s policy.  However, without standing the court would not look at the issue.

The court also denied Mr. Barcelona’s POBR claim.  POBR grants officers the right to have a legal representative during an IA, so long as the representative is not subject to the same investigation.  Mr. Barcelona argued that witnesses in an IA were not “subject to the same investigation.”  However, the court disagreed.  Persons “subject to the same investigation" include witnesses.  DOJ’s policy, preventing witnesses from serving as representatives, was allowed to continue.