Crime Victims United of California & the Sacramento Police Officers Association Seek a Stay of SB 1421 in the California Supreme Court

On December 21, 2018, our office filed an extraordinary writ of mandamus seeking to stay enforcement of Senate Bill 1421 on behalf of Crime Victims United of California and the Sacramento Police Officers Association.  By classifying peace officer personnel records and investigative files as not confidential notwithstanding Penal Code section 832.7(a) and Government Code section 6254 (f) “or any other law,” SB 1421 infringes on the privacy rights granted crime victims in the California Constitution.  Our writ seeks to deny SB 1421 its broad construction that would cause its disclosure requirements to supersede existing Constitutional and statutory protections from disclosure, such as the protections set forth in Marsy’s Law, the California Victims' Bill of Rights Act of 2008.(Cal. Const. Art. I, § 28(b)(4).) 

Largely written by the ACLU, the bill mandates disclosure of certain sustained disciplinary actions and critical incident investigations, including any incident wherein an officer discharges a firearm or deploys force that results in great bodily injury or death.   SB 1421 provides that these categories of records are not exempt from disclosure as confidential personnel records defined in Penal Code Section 832.7 or as law enforcement investigations pursuant to Government Code Section 6254(f). The poorly drafted bill has caused significant concern and uncertainty.  In particular, the bill was drafted to severely limit law enforcement agencies’ ability to redact sensitive information, such as victim information, and is silent as to retroactivity. 

The investigations, findings, and reports covered by SB 1421 contain multiple categories of information that are independently confidential or exempt from disclosure under the California Constitution and other state laws.  Critical incident investigations contain thousands of pages of documents, as well video recordings of the incident (if available) and of witnesses and victims.  One of the reasons the investigations are so comprehensive is that the investigations necessarily encompass the underlying crimes that caused law enforcement to respond.  Often, the suspect survives the use of force encounter and is subject to prosecution both for the underlying crime(s) and crimes against the officer that prompted his or her use of deadly force in self-defense.  In these circumstances, the officer is considered a victim as well under Marsy's Law.

SB 1421 requires the release of information that would otherwise be protected from disclosure pursuant to Article I, section 28 of the California Constitution or existing statutes, other than Penal Code section 832.7 or Government Code section 6254(f). SB 1421 eliminated 76 express exemptions in the CPRA, including Section 6254(k) which exempts records that are otherwise exempt from disclosure by state or federal statutes.  These exemptions permit agencies to redact confidential or sensitive information from the records, such as autopsy images, the personal information of victims, juvenile records, attorney-client work product, etc..  

SB 1421 provides only 5 very limited grounds for redaction, and narrows the protections of subsection (k) to material that is confidential under federal statutes, i.e. it eliminates the ability to redact information confidential under California law. SB 1421 deprives victims and peace officers of their privacy rights and negates Constitutional and statutory protections that would otherwise exempt crime victim information from disclosure, simply because the information is included in an investigation or record subject to disclosure under SB 1421.  A copy of the writ is attached here.

Crime Victims United of California and the Sacramento Police Officers Association are represented by David E. Mastagni and Isaac Stevens of Mastagni Holstedt, APC, and Nina Salarno-Besselman, who helped win the fight in 2008 to pass Marsy's Law.

Listen to the Daily Journal Podcast Interview of David E. Mastagni Regarding the California Supreme Court Pension Cases

The California Supreme Court heard oral arguments in Cal Fire, the first of a series of pension cases before the court on December 5, 2018.  The Daily Journal's Brian Cardile interviewed Mastagni Holstedt partner David E. Mastagni on December 6th regarding the California Rule and whether "air time" is a vested right.  David filed an amicus brief in support of Cal Fire and represents the Alameda County Deputy Sheriff's Association in another pension case before the California Supreme Court.  Offering an opposing view on whether the State can reduce pension benefits is Gibson Dunn Partner Daniel M. Kolkey.  Listen to the Daily Journal podcast.  Alternative links are on Soundcloud and iTunes. 

Update on Supreme Court Oral Arguments in the Cal Fire Pension Case

The California Supreme Court heard oral arguments today in Cal Fire Local 2881, et al. v. California Public Employees’ Retirement System,  one of the three major cases in the California Supreme Court challenging the constitutionality of the Public Employees’ Pension Reform Act (“PEPRA”).  The Court has not yet scheduled oral arguments in the other two cases, Marin Association of Public Employees v. MCERA (“Marin”) and Alameda County Deputy Sheriffs’ Association v. ACERA (“ACDSA”).  Cal Fire challenged PEPRA’s elimination of “air time,” which is additional service credit employees could purchase in lieu of working. The issues before the Court were: (1) was the option to purchase additional service credit a vested pension benefit of public employees enrolled in PERS?; and (2) if so, did the Legislature’s withdrawal of this right violate the contracts clauses of the California and U.S. Constitutions?

The Court focused on the first issue when questioning Cal Fire's attorney. Chief Justice Cantil-Sakauye and Justice Liu inquired into whether pension benefits should be treated differently than other public employment benefits, such as health benefits and vacation accruals. The justices indicated that pension benefits are distinguishable from other employment benefits as deferred compensation.  The Justices asked whether the right to purchase air time was a form of deferred compensation, which employees became entitled to upon accepting public employment, or more akin to other benefits, which were subject to modification or elimination during an employees’ employment, like vacation accrual rates, or salaries. The tenor of the justices' questions suggested that the Court was seeking to establishing a limiting principle to distinguish deferred compensation  from other employment benefits and how to treat "air time."

The Court’s questions for the State’s attorney focused largely on the second issue, discussing the California Rule, as well as the differing rules the First District laid out in the ACDSA and Marin cases. Under the California Rule, vested pension benefits may only be modified if the change is related to the theory of a pension and any detrimental changes are offset by comparable new advantages. By contrast, the court in Marin ruled the State could reduce pension benefits without providing offsetting new advantages, so long as a reasonable benefit remained. During oral arguments, Justice Liu asked the State’s attorney if he believed the State had the power to reduce employees’ future pension benefit accruals. At first, the State’s attorney said the State could reduce benefits, so long as they left a reasonable benefit. When Justice Cuellar pushed him on the question of what a “reasonable” benefit would be, the State’s attorney admitted the State believed it had the power to completely eliminate employees’ future pension benefits without providing any offsetting advantages.  The justices appeared skeptical of the State's extreme contention that the Legislature could reduce or eliminate the formula for current employees' future pension accruals.

The Court could issue a broad ruling addressing the California Rule or decide the Cal Fire appeal solely on the issue of whether employees had a vested right to purchase air time. If the Court determines that no vested right existed, the Court may delay  deciding the fate of the California Rule, i.e. any reductions in pension benefits be offset by new advantages, until it decides the ACDSA appeal.

David Mastagni and Issac Stevens, lead attorneys for ACDSA, attended the arguments in Los Angeles.

Appellate Court Reiterates POBRA’s Tolling Provisions Do Not Expire Until The Entire Criminal Investigation Is Concluded.

In a recently published decision, an Appellate Court held that the criminal tolling period within POBRA does not end for any involved officer unless, and until, all officers are officially cleared of criminal jeopardy.  In other words, the entire criminal investigation must be concluded before POBRA’s tolling provisions expire.

In Bacilio v. City of Los Angeles. et al., several officers were called to a domestic disturbance which led to the arrest of a husband.  Following the arrest, Officers Edgar Bacilio and Nestor Escobar returned to the apartment  in order to conduct a “welfare check.”  They spent nearly two hours on-scene.

Over 4 months later, on August 4, 2011, the arrestee’s wife lodged a complaint with the LAPD alleging that Officer Escobar remained in her apartment for 90 minutes, and during that time kissed her and groped her breasts and genitals.  She selected Escobar out of a photographic montage, stating that she was “60-70 percent” sure Escobar was her assailant.

The LAPD’s Internal Affairs Division commenced an internal investigation of Bacilio, Escobar, and a third Officer.  At the same time, a parallel criminal investigation was launched. Due to the criminal nature of the allegations, the officers were not interviewed until 2013.

On August 6, 2013 the deputy district attorney interviewed the alleged victim.  The lead internal affairs investigator attended the interview as well. Shortly after the interview, the deputy district attorney discussed the likelihood of criminal charges with the lead internal affairs investigator.  Although what was actually said during their discussion was disputed, it was clear that the deputy district attorney told the LAPD’s investigator that it was “okay to do the admin[istrative] interviews” of Bacilio and the third officer, as she would not be filing charges against either for aiding-and-abetting, but was still “working on the case.”  Impliedly, the District Attorney’s Office was still considering charges against Escobar.

On September 27, 2013 Bacilio was interviewed by LAPD internal investigators.  He was also interviewed again on February 17, 2014. On October 3, 2013 the District Attorney’s Office sent written notice to the LAPD (a “Charge Evaluation Worksheet”) that it was declining to file charges against any of the three officers, including Escobar.

On September 10, 2014 the LAPD served Bacilio with notice that it sought to officially reprimand him.  Bacilio challenged the findings arguing  that the deputy district attorney’s oral representation to the internal investigator that no criminal charges would be filed (on or about 8/6/13) triggered the end of the tolling period. Hence, the September notice was untimely under POBRA’s one year statute of limitations.

In rejecting Bacilio’s arguments, the Appellate Court reiterated that tolling in multi-officer cases will remained tolled as to all so long as any officer remains under investigation or pending final disposition (guilty / not-guilty / dismissed with prejudice) of a criminal charge.

Court Rules Agencies May Charge for the Costs of Extracting and Redacting BWC Video in Case with Significant Post S.B. 1421 and A.B. 748 Implications

On September 28, 2018, a California Court of Appeal found that the costs associated with extracting and redacting exempt material from body worn camera ("BWC") videos requested under the California Public Records Act  may be charged to the requester.  S.B. 1421 and A.B. 748 mandate that starting in January and July of 2019, respectively, law enforcement agencies must release previously exempt BWC footage of certain critical incidents.  In light of the anticipated flood of requests for BWC videos resulting from the enactment of these statutes, this ruling provides clarity regarding the ability to recovery the significant costs, including the personnel time, associated with extracting and redacting BWC video footage.

In NationalLawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, the non-profit group National Lawyers Guild requested public records from the City of Hayward relating to a demonstration held in Berkeley in December 2014. The demonstration was to protest recent allegations of police violence. The request included numerous documents and police body camera videos. The City had to review the videos and redact all exempt material, which required using a third-party software with audio/video editing capabilities.  The City sent the Guild an invoice for $2,939.58 seeking reimbursement for the time spent by the employee in editing and redacting the videos and for employing the software. The City also offered for the Guild to view the videos free of charge.

The Guild paid the invoice and brought an action seeking relief in the form of a refund and to release a second set of videos they had requested. The trial court concluded that section 6253 and 6253.9 do not permit the City to charge the Guild for costs incurred in making a redacted version of a public record.

The Court of Appeal reversed, and analyzed the statutory language and legislative history of section 6253.9(b) to determine what “extraction” meant. Section 6253.9(b) requires the requester of the information to bear the cost of production for certain records. Section 6253.9(b)(2) includes the “data compilation, extraction, or programming to produce the record.” The Court had to determine whether extraction meant taking “exempt material out of a digital file in order to allow a record to be produced” versus when the “request would require data compilation, extraction, or programming to produce the record.” That is, making a redacted version of an existing record would not amount to “extraction,” only the creation of a new record.  

The Court concluded that based on the legislative history, lawmakers were aware of the costs of redacting exempt information. Thus, they drafted 6253.9(b) to expand the circumstances when an agency may be reimbursed when it must incur costs to extract exempt material from public records. Therefore, 6253.9(b) includes the cost of extracting exempt material from video recordings with the aid of special computer programming and the Guild was required to bear the cost.

Appellate Court Holds San Francisco Police Department Does Not Have to Meet and Confer Over Restrictive Force Policy

The First District Court of Appeal denied the San Francisco Police Officers' Association's petition to compel arbitration of the POA's grievance challenging the City’s refusal to further meet and confer before adopting and implementing a revised use of force policy.  The appellate court held such policies to be a fundamental managerial and policy decision and held the even the implementation of the policy is not subject to negotiation.  The court did note that no pre-implementation effects bargaining issues existed because the parties had already negotiated over and resolved issues pertaining to training and discipline. 

The San Francisco dispute arose in 2015 when the city tried to change its policies on arrests and shootings.  Although the city agreed to meet with the union, the union objected to several proposed changes.  Specifically the union disagreed with the city’s decision to outlaw “carotid holds” (neck holds) and shooting at moving cars.

The California Meyers-Milias-Brown Act (MMBA) requires public employers to negotiate before making changes that impact wages, hours, and working conditions of employees.  The MMBA seeks to promote problem-solving between employees and employers.  When the City decided to unilaterally implement its revised force policy, the POA filed a grievance to enforce its bargaining rights.  The grievance raise 3 issues: (1) did the City have a contractual obligation to negotiate any aspect of the use of force policy; (2) if so, did that obligation extend to negotiating about the elimination of the carotid restraint and prohibition on shooting at a moving vehicle; and (3) if so, did the City fail to negotiate in good faith by its refusal to reduce to writing agreements it made during negotiations regarding these two issues.

Relying on the 40 year old San Jose decision, the court held use of force policies are a management right, thus the city was not required to negotiate with the union before changing the policies.  Quoting San Jose, the court held the dispute was not subject to arbitration: “The power of a city to enact and enforce regulations relating to the use of firearms by police officers is in the exercise of the police power granted by article XI, section 7 of the California Constitution, which a governmental agency may not suspend, bargain or contract away....”  

  

NLRB Issues New Standard For Duty Of Fair Representation Charge Defenses

On September 14, 2018 the National Labor Relations Board issued a memo addressing duty of fair representation charges against labor unions. The National Labor Relations Act makes it illegal for labor unions to restrain or coerce employees when they exercise their rights granted to them by the Act. The law states that a labor organization has a duty to fairly represent employees.

The NLRB believes that their past approach to duty of fair representation cases has created
confusion for employees in what duties are owed to them by union representatives. In response, the memo instructed regional directors that unions should be required to show they have procedures or systems in place to track grievances. It was also explained that a union which does not communicate or respond to a complaining member is negligent, and the negligence would be considered arbitrary and willful. The NLRB stated that it will not accept after-the-fact communication as a correction for negligence. 

The position taken by the NLRB is inconsistent with how they have interpreted duty of fair
representation law in the past. The change means that labor organizations can now be subject to charges based on careless or unprofessional actions that had previously been viewed as just plain error. To avoid a negligence charge, labor organizations should evaluate the procedures and case tracking systems they currently have to ensure their timeliness and thoroughness.

Corona POA President Jason Perez Defeats CalPERS Board President

CalPERS has reported that Corona Police Officers Association President Jason Perez defeated incumbent CalPERS Board of Administration President Priya Mathur with 56.78% of the vote to her 43.22%.  His term will begin in January.  Perez ran on a platform of maximizing investment returns and putting an end to using CalPERS investments to advance unrelated social and political causes.

The Board of Administration is a 13-member board of elected, appointed, and ex-officio officials charged with overseeing and directing the management of CalPERS.  The executive leadership of the Board is elected from among its members. 

Gov. Brown Signs Two Bills Subjecting Law Enforcement Investigations of Force and Certain Misconduct to CPRA Disclosure

On September 30, 2018, Governor Brown signed two bills which reverse long standing public safety laws which exempt law enforcement investigations from disclosure under the Public Records Act, Senate Bill 1421 and Assembly Bill 748.  Mastagni Holstedt Partner David E. Mastagni worked PORAC in opposing these bills and limiting their scope. Both bills require disclosure of video and audio recordings of “critical incidents."  However, S.B. 1421 goes much further requiring disclosure of certain disciplinary investigations and findings.  S.B. 1421 also potentially cripples law enforcement's ability to obtain witness cooperation by mandating the release of as essentially all evidence gathered in investigations of police force involving death or great bodily injury.

Currently, Government Code section 6254, subdivision (f) provides that no disclosure is required of records relating to law enforcement investigations under the CPRA.  Our Supreme Court has recognized that records pertaining police investigations should not, for reasons of privacy, safety, and efficient governmental operation, be made public.  Recognizing peace officer safety and confidentiality concerns, Penal Code section 832.7 provides that peace officer personnel records, including records pertaining to discipline, are confidential and not subject to disclosure except through the Pitchess process.  (Notably, the media frequently misreports that the POBR established peace officer confidentiality.)

Effective January 1, 2019, SB 1421 significantly revises the CPRA and Penal Code to require disclosure of the following records under the CPRA:

1. Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public. “Sexual assault” is defined as "the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexual assault."
2. Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence."
3. A record relating to the report, investigation, or findings of any incident involving the discharge of a firearm at a person by a peace officer or custodial officer, and an incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury. Originally, S.B. 1421 required disclosures of "serious" bodily injury, as well as deployments of electrical control devices and baton strikes, but the scope of the bill was narrowed.

The records that must be release are expansive: all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

Similarly, A.B. 748 requires agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.

The bills have different timelines for production of records, and different grounds for delaying disclosure or withholding records.  Ultimately most records must be disclosed.  These bills create grave public safety concerns, including intimidation and reprisals by activist groups or criminals against witnesses whose statements will ultimately be disclosed.  The bills pose immediate threats to officer safety and privacy, as exemplified by the publication of the home addresses and family members of officers involved in critical incidents, threats against them, and protests at their homes and social functions. As analysis of video footage requires context, including an understanding of its limitations as evidence.  To draw meaningful conclusions, an explanation of other information known to the officer but not depicted on the video, and the officer's state of mind is necessary.  Mass video releases without context will be exploited by those with a predetermined political agenda or financial interests in controversy to mislead the public, while the involved officers are typically subject to a gag order.

Additionally, these bills raises a number of legal issues that will likely be determined in the courts.  Do the statues apply retroactively? What effect does S.B. 1421 have on expungement policies which have been specifically authorized by our Supreme Court? Will these statutes prompt officers to invoke the right to remain silent in critical incident investigations? Is S.B. 1421's requirement to disclose an officer's compelled statement under a Lybarger grant of use immunity constitutional?  If so, how can an officer receive a fair trial if his or her inadmissible statement has been widely published in the media? Does the application of either of these bills to Charter Cities violate the California Constitution?

David P. Mastagni Interviewed on KFBK's Kitty O'Neal About AB 748

On October 1, 2018, KBFK broadcaster Kitty O'Neil interviewed David P. Mastagni about AB 748.  Governor Brown signed the bill, which requires public release of video and records relating to critical incident investigations. 

O'Neil asked Mastagni what his concerns were about the new law.  He explained, "My greater concern is that the release itself is going to interfere with every single solitary investigation.  It’s going to cause witnesses to go into hiding. It’s going to jeopardize the safety of witnesses.  Frankly, it’s going to jeopardize the safety of the officers. And it will definitely take a law enforcement function and make it a media ping pong game."

O'Neil continued asking what he thought was behind the creation of the bill.  He explained, "I’ve dealt with the Legislature long enough to know they go by poll barometers and the never do anything based on the philosophic or best interests of society or law enforcement.  It’s always on what their district is like.  I call it promoability.  That public service, Kitty, has just gone from where you had volunteer councilman and people serving out of civic duty and dedication to career advancement and therefore you take positions that will encourage your constituency in your local district then you take them that will encourage your nomination ability in bigger, more statewide elections and I think that it’s all a calculus.  I’m sorry to say I don’t believe that the question of transparency or police-community relations – I think it’s there – but its maybe fifth, sixth, tenth down the line from how will this effect my career."

Listen to the whole interview here.

Governor Signs Bill Barring Suits To Recover Pre-Janus Agency Shop Or Fair Share Fees

In the wake of Janus, groups such as the National Right to Work Foundation have been promoting litigation against public employee unions to recoup agency shop and fair share dues paid prior to Janus.  In response to a series of federal lawsuits seeking back-dated dues and fees from California public employee unions, the legislature passed S.B. 846.

Among other things, the Bill provides California public employee recognized bargaining organizations immunity from suits over previously paid fees.  Anti-union activists had argued that the fees have always been unconstitutional and unions assumed the risk of having to reimburse the fees by continuing to collect them despite dicta in earlier Supreme Court cases calling into question their validity.  The Bill, signed by the Governor on September 14, 2018, resolves the legal question and provides unions protection from costly litigation over practices that were legal prior to Janus.  The Bill adds Government Code 1159, which state in relevant part:

(e) The Legislature finds and declares:
(1) Application of this section to pending claims and actions clarifies existing state law rather than changes it. Public employees who paid agency or fair share fees as a condition of public employment in accordance with state law and Supreme Court precedent prior to June 27, 2018, had no legitimate expectation of receiving that money under any available cause of action. Public employers and employee organizations who relied on, and abided by, state law and Supreme Court precedent in deducting and accepting those fees were not liable to refund them. Agency or fair share fees paid for collective bargaining representation that employee organizations were obligated by state law to provide to public employees. Application of this section to pending claims will preserve, rather than interfere with, important reliance interests.
(2) This section is necessary to provide certainty to public employers and employee organizations that relied on state law, and to avoid disruption of public employee labor relations, after the Supreme Court’s decision in Janus v. American Federation of State, County, and Mun. Employees, Council 31 (2018) 138 S.Ct. 2448.

Ninth Circuit: The First Amendment Forbids City From Prohibiting Police Officers From Criticizing Police Department Or City

On September 5^th 2018, the Ninth Circuit found that a “Last Chance Agreement” restricting an employee’s negative comments about the police department, the city, or its employees, was an unconstitutional restraint on free speech.

In Barone v. City ofSpringfield, a victim advocate and a police department liaison to the city’s minority communities was investigated for two incidents. The first incident involved a tour during which students took photographs in restricted areas. The second incident involved a message left with dispatchers about a potential crime. After the investigation, the Officer was suspended for four weeks and placed on administrative leave. In order to return to work, she was presented with a mandatory Last Chance Agreement (“LCA”).  She refused to sign it “because it prohibited her from reporting on racial profiling and discrimination.”

After her refusal, the police chief provided her with an amended LCA. The amended agreement barred her from saying or writing anything negative about the department, the city, or their employees—although she could report complaints involving discrimination or profiling by the department. The amended LCA also said she would remain subject to a generally applicable order that barred her from publicly criticizing or ridiculing the department. She refused to sign this agreement as well and was subsequently terminated. She filed suit alleging, among other things, that the LCA violated her First Amendment rights.

The Ninth Circuit agreed that the amended LCA violated her constitutional rights. The Court specifically found that the Department’s concerns about potential disruptive speech were unconvincing. The Court concluded that the city needed evidence of past disruption or evidence that the anticipated harm is “real, not merely conjectural.” Without such evidence, the LCA unconstitutionally restrained Barone’s speech as a private citizen on matters of public concern.

David P. Mastagni Interviewed About Independent Contractor Ruling

Earlier this year, the California Supreme Court cracked down on companies taking advantage of workers by calling them independent contractors when they're really employees.  Before the ruling, many employers claimed their employees weren't really employees at all, meaning they did not have any right to overtime or could be fired if they got sick, for example.  This Court's ruling means employers can't shirk their responsibilities for overtime, unemployment insurance, workers' compensation, payroll taxes, the right to join a union, and other benefits of employment status.

Mastagni Holstedt founding partner David P. Mastagni was interviewed in response of some companies objection the ruling hurts their profits.  He explained calling employees independent contractors "is cheap and they're cheap and they want to make a greater profit on the back of someone else.  But he explained, "after this case, there's a glimmer of hope and responsible employers will embrace it."  Watch the full interview at https://sacramento.cbslocal.com/2018/09/13/independent-contractors-whats-next-california/.

In Dynamex Operations West v. Superior Court of Los Angeles, the Court held workers only count as independent contractors if "(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”

Mastagni Holstedt, APC is Proud to Announce the Opening of a New Larger Southern California Office

For more than 40 years, Mastagni Holstedt, APC has provided a full range of legal expertise and negotiations to address the diverse legal and bargaining needs of our clients. Thanks to our clients and the continued growth of the firm, Mastagni Holstedt, APC has moved into a larger office to better serve our clients in Southern California.

This week landmarks the opening of the firm's move from the Ontario office to a much larger space in Rancho Cucamonga, located at the foothills of the San Gabriel Mountains in Southern California. John Bakhit will continue as Managing Senior Associate in Rancho Cucamonga and is dedicated to maintaining and expanding comprehensive and successful legal representation throughout the Southern region of California.

"I am very pleased to see the Southern California team expand into the larger office in Rancho Cucamonga. It's a testament to the firm's commitment to excellence and expansion," commented David P. Mastagni, Founding Partner.

KFBK Talk Radio Host John McGinness Interviews David E. Mastagni on AB 931

KFBK Talk Radio Host John McGinness interviewed Mastagni Holstedt partner David E. Mastagni on August 30, 2018 about AB 931, the proposed state law that would have radically changed officer use of force standards.  The bill stalled in the State Assembly yesterday when Speaker Toni Atkins shelved the bill for this legislative session. 

McGinness introduced Mastagni as, "a well-known member of a prominent law firm family," and explained he shared law enforcement concerns about the bill, saying, "We recognize the tremendous flawed changed of what had been proposed and celebrate the fact that at least for now it didn’t happen and I also understand that a significant amount of the work that was done on this is credited to you."  David explained, "I wouldn’t take all the credit on this; I worked with a great team.  From the President of PORAC and their lobbyist to the Cal Chiefs, a long with a lot of other law enforcement stakeholders."

McGinness asked about the constitutional issues about AB 931.  David explained, "We would have been headed to a massive constitutional challenge on this.  The California Constitution, in article 1, section 1, expressly provides every citizen of California the right of self-defense and the defense of property.  And what this bill would have done is it would have held officers to an impossible standard that was much higher than you and I and every other citizen of this state and treated them differently because of their status as a peace officer, which raises another serious constitutional question under the 14th amendment and that’s equal protection."

They also discussed the immediate impacts to officer and public safety.  David explained, "I think [AB 931] would incentivize officers not to do anything and we’ve seen this happen back east.  Baltimore is a great example."

"As a citizen and a father it is of great concern to me as well.  What this kind of legislation really does is it creates a huge disincentive for officers to engage in proactive policing.  Proactive policing and community policing over the last couple of decades is where we’ve seen the best results in reducing crime."

"And it’s going to incentive officers to wait for a call for service and respond only to that call because the feeling will be you can’t second guess me for going where you ordered me to go but if I engage in proactive policing and something happens that controversial I’m going to get second guessed; I’m going to get second guessed from this impossible standard that the Ninth Circuit has even said that would require super human judgement.”

You can listen the whole interview here.

Federal Court Confirms Officer’s Use of Deadly Force Justified in Order to Prevent Escape

A recently published federal court case underlines that if officers have probable cause to believe a suspect poses a threat of serious physical harm to themselves or others, they are justified in using deadly force to prevent escape. A warning is only required if feasible.

In Horton v. Pobjecky (2018), an unarmed off-duty police officer was waiting for food in a  pizzeria. The officer—Frank Pobjecky, was sitting in the break area with the restaurant manager—Vincenzo Tarara. Suddenly, four young men entered the front door. One of the men held a revolver. Two of the men entered the break room while a third went around the counter toward the cash register. The fourth man, Michael Sago (“Sago”), acted as a lookout. Sago stood in the entrance holding the front door open.

One of the men pointed a gun at Tarara and demanded money. Tarara told him to get out of his restaurant. Tarra then slamed the man against a cooler and reached for the man’s gun. While Tarara and the man struggled for control of the gun, Pobjecky, who knew that Tarara carried a concealed handgun on his hip under his shirt, grabbed Tarara’s gun.

Sago approached the break area. As he approached, Pobjecky gained possession of Tarara’s gun. Simultaneously, Tarara won the struggle for the other gun.  Pobjecky began shooting. He never identified himself as a police officer or gave any verbal warnings or commands.

With Tarara’s gun, Pobjecky engaged each suspect as they moved around the restaurant. Pobjecky shot and wounded all three men. Sago was shot three times from behind in the lower back as he crawled away toward the door. After Sago crawled out of the restaurant, Pobjecky locked the front door and called 911. Approximately 11 minutes later paramedics arrived. Sago died shortly thereafter.
James Horton, representing Sago’s estate, sued Pobjecky alleging that he used excessive force and failed to provide medical care in violation of 42 U.S.C. § 1983

In dismissing Horton’s case, the Court noted that as long as the assailants were moving inside the pizzeria, they posed a threat. The Court ruled that given the circumstances no reasonable juror could conclude that he should have stopped to identify himself as a police officer or warn each assailants before defending himself.

As to the failure to provide medical care, the Court ruled that it was “unreasonable to demand Pobjecky venture into the night with an empty gun, risking further onslaught, braving the hazards [Sago] and the other assailants created, to administer treatment to [Sago]”

Sacramento Bee Turns To David E. Mastagni For Insight On Recent California Supreme Court Ruling

On Tuesday, the Sacramento Bee published an article discussing the new California Supreme Court ruling in Boling v. Public Employment Relations Board. The article, entitled "California unions win another pension lawsuit. Will their streak continue?," provides valuable insight and analysis into a recent court victory for California Public Unions.

As outlined in the Sacramento Bee article, as well as a previous Mastagni Law Blog post, the California Supreme Court recently rejected the Mayor of San Diego's attempt to legislatively deny new municipal employees pension benefits without first meeting-and-conferring with existing unions.

As David E. Mastagni states in the Sacramento Bee, "You can't avoid bargaining obligations by going to legislation. It's an old trick that some public officials had come up with."

You can read the entire Sacramento Bee article here: "California unions win another pension lawsuit. Will their streak continue?,

California Supreme Court Rules San Diego Violated MMBA by Refusing to Bargain Over Pension Initiative

In a severe setback to a recent scheme to unilaterally erode public pensions, on Thursday the California Supreme Court held that the city of San Diego was required to meet-and-confer with unions over a mayoral sponsored citizen initiative that eliminated defined benefit pensions for new municipal employees. 

In Boling v. Public Employment Relations Board, the high court evaluated whether a ballot initiative transferring newly hired city workers to a 401(k)-style retirement savings plan, in lieu of a traditional pension plan, required the city to meet-and-confer with various unions.  Since 1984 our Supreme Court has held that a charter amendment proposed by the governing body of a public agency is subject to the MMBA's bargaining requirements prior to its submission to the voters if it adversely impact compensation or benefits. (People ex rel. Seal Beach Police Officers Assn. v City of Seal Beach).  Mayor Sanders's sought to evade Seal Beach through the artifice of spearheading a voter initiative.  Until this week, the Supreme Court had not determined whether voter initiatives are subject to meet and confer;    

This seminal case involved Proposition B, a ballot measure placed on the June 2012 ballot by a group called San Diegans for Pension Reform to amend the San Diego city charter to provide 401(k)-style retirement benefits instead of defined benefit pensions to newly hired employees.  However, San Diego Mayor Jerry Sanders was instrumental with the measure passing. The Mayor proposed the initiative in November 2010 and even spoke of his support for it at his State of the City address on January 2011. In fact, Mayor Sanders met with community groups but refused to meet with unions representing municipal employees, deputy city attorneys, and firefighters. The initiative passed with 65.81 percent of the vote.

After Proposition B passed, union members filed suit alleging that Mayor Sanders improperly placed the initiative on the ballot without first bargaining with affected unions as required under the Meyers-Milias-Brown Act (“MMBA”). In response, the City argued that the Mayors’ support was “merely that of a private citizen.”

In rejecting the City’s argument, the California Supreme Court ruled that: “allowing public officials to purposefully evade the meet-and-confer requirements [of MMBA] by officially sponsoring a citizens’ initiative would seriously undermine the policies served by the statute: fostering full communication between public employers and employees, as well as improving personnel management and employer-employee relations.”  The Supreme Court remanded the case to lower courts to determine the appropriate remedy.

Here, the San Diego Mayor tried to have it both ways acting on behalf on the City to push an initiative to divert pension obligations to other spending priorities, while claiming to do so as a private citizen in order to avoid long-standing bargaining requirements.  Had the Court ruled otherwise, public officials would have been incentivized to circumvent their obligation to negotiate over pension initiatives through the contrivance of acting as a private citizen while exploiting the advantages of their elected office.  

Sacramento Magazine Turns to Expert Judith Odbert on the Statute of Limitations, DNA

Sacramento Magazine's annual Top Lawyer list features Mastagni Holstedt Senior Associate Judith Odbert on the Statute of Limitations and DNA Evidence.  Odbert is a seasoned criminal attorney who has more than 25 years of experience in litigation and trials including homicides, sexual assaults, aggravated assaults, domestic violence and general felony practice.

The Firm also wishes to congratulate our 14 attorneys recognized on this year's list: Michael Amick (Workers Compensation), Ken Bacon (Legal Malpractice & Professional Malpractice), Jeffrey R. A. Edwards (Employment and Labor), John Holstedt (Workers' Compensation), Craig Johnsen (Workers' Compensation), David E Mastagni (Employment and Labor), David P. Mastagni (Personal Injury), Phillip R.A. Mastagni (Personal Injury), Judith Odbert (Criminal Defense), Josh Olander (Criminal Defense), Daniel Rainsbury (Medical Malpractice), Kathleen N. Mastagni Storm (Employment and Labor), and Stuart Woo (Workers' Compensation).

9th Circuit: 2nd Amendment Protects Right to Carry Firearms in Public For Self-Defense

In a recent appellate court decision, the 9th Circuit weighed in on how much the Second Amendment protects, or does not protect, carrying of firearms outside of the home.

In Young v. Hawaii, an individual challenged the constitutionality of a Hawai'i law requiring gun owners to keep their firearms at either their place of business or at home. The law provides an exception. Residents can apply to carry a firearm, either concealed or openly, with the local chief of police. However, the applicants must demonstrate a need to protect “person or property.”

George Young wished to carry a firearm publicly for self-defense. He applied twice with the County of Hawai'i’s Chief of Police. The Chief denied his application twice.  In fact, no one other than a security guard had ever been issued an open carry license. After his second application was denied, Mr. Young challenged the constitutionality of the law.

In a lengthy majority opinion, which examined the history and language of the Second Amendment, the Court held the Constitutional right to “bear arms” necessarily “implies some level of public carry in case of confrontation.” Accordingly, the Court ruled that the Hawaiian law unnecessarily restricts Mr. Young’s right to carry a firearm openly.

The Court specifically noted that restricting open carry to those who job entails protecting life and/or property restricts open carry to a “small and insulated” subset of law-abiding citizens. For that reason, the Court stated that the Hawai'i law “violated the core of the Second Amendment.”  

Currently, there is a split among several federal courts on these issues. Accordingly, this case may move forward to the Supreme Court.

SB 1085 Expands “Release Time” To All Public Sector Employees

In February of 2018, State Senator Nancy Skinner introduced Senate Bill 1085. This much needed legislation ensures that public employees are able to take a leave of absence in order to represent their union without losing their job or benefits during time performing union duties.

Under current law, school and community college employee organizations are already granted this leave time. This leave, sometimes referred to as “release time,” permits employees to perform union duties without loss of pay or other benefits.  However, other public-sector unions—including local government employees and transit employees, must negotiate this type of leave with the employer. Unfortunately, some public employers are uncooperative and deny union representatives release time.

To fix this problem, SB 1085 extends the current law for school and community college employees to grant other public employees similar leave in order allow sufficient time off to participate in matters critical to their representation needs.

Appellate Court Upholds Officer’s Five Day Suspension for Inappropriate Facebook Comments

In a recent unpublished decision, a police officers’ five day suspension for posting an off-duty Facebook comment regarding a matter of public concern was upheld. The case serves as an important reminder of the limited First Amendment rights afforded public employees and that public safety officers must always be cautions when utilizing social media.

In Zucker v. City of Los Angeles, LAPD Sergeant Benjamin Zucker contested a written reprimand, as well as, a five-day unpaid suspension for posting a comment on a third party’s Facebook page. His comment lambasted a civil action filed against the LAPD by a female officer claiming gender and religious discrimination.

Zucker’s comment was posted on the Facebook page of fellow Officer Mark Cronin. Officer Cronin’s page provided a link to a news article discussing a recent lawsuit filed against the city of Los Angeles by fellow Officer Victoria DeBellis. In that lawsuit, Officer DeBellis claimed she suffered workplace discrimination based on her gender and religion.

In response to the newspaper link, Zucker commented:

“I was born Jewish, raised Mormon and married to a catholic that is Japanese, Portuguese & German. NOW WHERES MY MONEY?

“Kiss my ass ya greedy house mouse!”

The term “house mouse” in law enforcement nomenclature refers to members of the department not working in the field.

Zucker did not identify himself as LAPD in his comments. Rather, Debellis was able to determine that Zucker was employed by LAPD because his Facebook page showed himself dressed in full uniform. After determining Zucker was an LAPD employee, Debellis filed a personnel complaint against him.

During the disciplinary process, Zucker was found guilty of “conduct unbecoming an officer.” He received an official reprimand and a five-day unpaid suspension. The Department found that Zucker’s Facebook profile showed “a clear nexus to the department” because it displayed a picture of him wearing his LAPD uniform and representing himself as an LAPD sergeant. The Department also concluded that: “Although in an off-duty capacity, he placed himself in a position where his actions were subject to on-duty scrutiny by other department employees, and may have some influence on the outcome of an unresolved litigation.”

Zucker challenged the reprimand and unpaid suspension in court. Specifically, he argued the imposed discipline violated his First Amendment rights because he was a citizen speaking on a matter of public concern—i.e. civil litigation/a news story. Moreover, he claimed that there was no nexus between his speech and his role in the department.

Applying the Garcetti v. Ceballos standard established by the Supreme Court, the Appellate Court made two crucial inquiries. First, it determined whether Zucker “spoke as a citizen on a matter of public concern.” However, it determined if the LAPD “had an adequate justification for treating [Zucker] differently from any other member of the general public.”

In a significant setback for the Constitutional rights of police officers, the court held the agency's interest avoiding Zuckers’s potentially disruptive Facebook comment outweighed his First Amendment rights. Though the court conceded his speech, i.e. commenting on a news article, involved a matter of public concern, it refused to afford him First Amendment protections largely because it also included a derogatory statement directed at Debellis.  The potential disruptiveness of this derogatory statement was adequate justification for treating Zucker different from any other member of the general public.

The Court highlighted that Zucker made the comments on Cronin’s Facebook profile—arguably knowing other LAPD employees would review the post. In fact, the Court specifically noted that Debellis actually saw Zucker’s comment and then filed a personnel complaint against him only after determining he was an LAPD employee. Accordingly, her complaint about his derogatory statement proved that Zucker’s comment “impaired harmony among co-workers and caused potential disruption to department operations.” For that reason, the Court concluded Zucker’s Facebook comment was not protected by the First Amendment and upheld Zucker’s suspension.

 

Interestingly, the appellate decision did not address whether the communications were protected under the MMBA as concerted actions. In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the NLRB overturned the discipline of five employees and found that the employees’ Facebook postings criticizing one of their co-workers was protected, concerted activity and that their discipline constituted retaliation for engaging in the protected activity.  Nevertheless, this surprising decision constitutes a stark warning that public cannot always rely on the First Amendment to protect their social media comments regarding matters of public concern that relate to their employment.  Public employee First Amendment cases are often decided by the factual nuances; had Zucker not referred to Debellis as a house mouse, the court likely would have reached a different conclusion. 

CalPERS Investment Return Exceeds Forecast For Second Straight Year

CalPERS reported an impressive 8.6% return on its investments over the last fiscal year.  That's on top of the 11.2% CalPERS reported for fiscal year 2016-17.  CalPERS investment return brings the total fund up to 71% funded, meaning CalPERS has that percentage of the funds it needs to pay out its obligations.  CalPERS recently reduced its predicted returns, triggering higher contributions into the system.  Continued successful investment returns is good news for California labor unions and public employers in the CalPERS system.

AB 1192 Ensures Retired Reserve Officers Can Carry High-Capacity Magazines/Assault Rifles

On July 7^th 2018, Governor Brown signed Assembly Bill 1192 into law. The legislation, sponsored by Assemblyman Tom Lackey, was actively supported by PORAC.  This new law corrects a problem created by Proposition 63. 

In 2013, the California Legislature passed Assembly Bill 703. That bill allowed “honorably separated Level 1 reserve peace officers” to carry concealed firearms on the same basis as “honorably retired full-time peace officers.” At the time AB 703 became effective, the California Penal Code allowed the possession of high-capacity magazines by currently sworn full-time and reserve peace officers. It also allowed the continued possession of high-capacity magazines by California residents who lawfully acquired them prior to the year 2000 and by retired peace officers who acquired them during the course of their active duty.

However, in 2016, Proposition 63 passed. It required all persons, with few exceptions, to “divest themselves of high-capacity magazines by July 1, 2017.” Proposition 63 carved out an  exemption for “honorably retired peace officers.” Due to a technical oversight, Proposition 63 did not exempt “honorably separated Level 1 reserve peace officers.”  Accordingly, numerous retired reserve police officers were being forced to dispose of any high-capacity magazines possessed by them on or prior to July 1, 2017.  AB 1192 fixes that technical oversight and allows retired reserve officers to continue possessing high capacity magazines.

In Response to Janus, Governor Brown Signs SB 866 which Bolsters Union Dues Deductions

 In the wake of the landmark decision of Janus v. AFSCME (readMastagni Law Blog Post RE: Janus v. AFSCME), Governor Brown signed SB 866 into law. The legislation was incorporated into the recently enacted state budget. The new law authorizes employee organizations to request payroll deductions and requires public employers to honor such request. Significantly, the new law requires agencies to honor the organization's dues deductions request based on the organization's certification of individual employee authorizations and to direct employee requests to cancel or change deductions for employee organizations to the employee organization, rather than to the public employer.   SB 866 applies to the vast majority of employers covered by PERB.

Specifically, the SB 866 makes several changes to the union dues deduction process including:

1.                  Employers must allow for payroll deductions for union dues;

2.                  Any request to begin dues deductions or cancel dues deductions must be made to the union, and not the employer;

3.                  The union is responsible for letting the employer know the amount of dues deductions for employees;

4.                  The employer must accept the information provided by the union on dues deductions for employees;

5.                  If a union states it has written authorization for begin deductions, it is not required to provide the employer a copy of the individual authorization unless a dispute arises about the existence or terms of the authorization;

6.                  The union must indemnify the employer for any claims made by employees as a result of the payroll deductions;

7.                  If an employer “chooses to disseminate mass communications to public employees or applicants to be public employees concerning public employees’ rights to join or support an employee organization, or to refrain from joining or supporting an employee organization, it shall meet and confer with the exclusive representative concerning the content of the mass communication;”

8.                  If the parties cannot reach agreement and the employer decides to go ahead with its proposed mass communication, it must also distribute a communication of reasonable length provided by the union.

SB 866 became effective immediately after Governor Brown signed it into law on June 27, 2018.

First Appellate District Allows SFPD to Circumvent Govt Code 3304(d) by Disciplining Officer for Acts Committed In December of 2012

On May 5, 2018, the First Appellate District of California issued the now published decision in Daugherty v. City and Countyof San Francisco. This widely publicized case arose out of the criminal investigation of San Francisco Police Department (SFPD) Sergeant Ian Furminger. The United States Attorney’s Office (USAO) conducted this investigation with the assistance of selected members of the criminal unit of SFPD’s Internal Affairs Division (IAD-Crim). The SFPD Internal Affairs Division is separated into two units: IAD-Crim investigates potential criminal conduct by SFPD officers, while disciplinary investigations are handled by IAD-Admin. SFPD imposes a “wall” between these two departments in order to protect evidence in criminal investigations. In the Furminger investigation, the USAO further required confidentiality and required IAD-Crim officers to sign nondisclosure agreements. 

In December 2012, the investigation led to the discovery of racist, sexist, homophobic, and anti-Semitic text messages between Furminger and nine other SFPD officers. IAD-Crim brought these text messages to the attention of Lieutenant DeFilippo. In order to maintain confidentiality, USAO and the Lieutenant chose not to disclose the text messages to IAD-Admin at this time. On December 5, 2014, a federal jury convicted Furminger. Three days after the final verdict, the USAO lifted the confidentiality restriction and released the text messages to IAD-Admin. IAD-Admin conducted an investigation and issued disciplinary charges against respondents in April 2015.

Rain O. Daugherty filed a writ of mandate seeking to rescind the disciplinary charges on the grounds that they were untimely and in violation of the Public Safety Officers Procedural Bill of Rights (“POBRA”). Under POBRA, no punitive action may be taken against a public safety officer for any alleged act, omission, or other misconduct unless the investigation is completed within one year of the “of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omissions, or other misconduct,” subject to certain statutory exceptions. One such exception provides that the one year time period is tolled while the act, omission, or other alleged misconduct is also the “subject” of a pending criminal investigation or prosecution.

The City of San Francisco argued that Lieutenant DeFilippo was not a “person authorized to initiate an investigation” because it is SFPD’s policy that only IAD-Admin was authorized to initiate disciplinary investigations of SFPD officers. Accordingly, the City argued that the statute did not accrue until the text messages were released to IAD-Admin in December 2014. 

In ruling for the City, the Appellate court stated that the details for implementing various provisions of POBRA are to be formulated by the agency itself. Based on this principle, the court held that law enforcement agencies have latitude to designate “a person authorized to initiate an investigation” and courts should apply the agency’s designation in determining when the limitations period begins to run. Applying SFPD’s designation, the court determined the statute of limitations did not begin to accrue until December 2014, when the text messages were turned over to IAD-Admin.  The Court also found that the one-year statute of limitations was tolled during the criminal investigation because “tolling applies to any conduct with a clear connection to the criminal investigation.” 

Although other courts have supported a more expansive view "person[s] authorized to initiate an investigation", this Opinion undermines the legislative intent of 3304(d) to provide peace officers a speedy adjudications of disciplinary actions by inviting agencies to narrowly define those authorized to initiate investigations.  Under Daugherty, high ranking police managers can avoid their duty to act promptly upon being informed of alleged misconduct.  As job security and disciplinary appeal rights remain squarely within the scope of representation, labor representatives should demand to meet and confer over any proposed policy changes narrowing the persons authorized to initiate investigations. 

WATCH NOW! DAVID E. MASTAGNI DISCUSSES LOOMING THREATS FACING PUBLIC EMPLOYEE PENSION PROGRAMS

On April 24, 2018, David E. Mastagni participated in a two-person panel discussion entitled: “Pensions: The Problems, Perspectives and Possibilities." The event was held at the Richard Nixon Presidential Library and Museum.

Click the link below to watch David’s discussion with Scott Ochoa--City Manager of Ontario California.

  

https://www.youtube.com/watch?time_continue=1096&v=CT4wG-GBTF4

Supreme Court Rules in Favor of Free-Riders: Union Drop-Outs Don’t Have to Pay Fair Share Fees, Not Entitled to Non-Core Union Benefits

Today, the Supreme Court ruled that unions cannot collect fair share fees from employees who do not opt in to union membership.  While the decision means some unions will face a significant in drop in revenue, public safety unions are not expected to be as heavily affected.  This court decision was widely expected given the makeup of the Supreme Court and some recent cases.  California recently passed laws giving unions opportunities to reduce the impacts of the decision.

The case is about agency shop agreements.  In an agency shop, employees can chose to be full members of the union or decline union membership.  But non-members still have to pay part of the cost of supporting the union.  In some labor unions, non-members make up a big percentage of the employees covered by a contract.  In most public safety unions, non-members are already a very small share.  However, all unions should redouble efforts to provide high value to members and communicate with members about the benefits of union membership.

In Janus v. AFSCME, Mark Janus argued that his $45 monthly fee to the American Federation of State, County, and Municipal Employees (“AFSCME”) was unconstitutional and infringed on his first amendment rights. Specifically, he argued that as a public employee his contract negotiations are with the government, hence those fees were a form of political advocacy.

Based on long-standing precedent in Abood v. Detroit Board of Education, all covered employees must pay a fee to account for the benefits of collective bargaining that unions offer. Those fees cover collective bargaining costs, such as contract negotiations, but not political advocacy.

However, Janus claimed such a fee requirement violated his right to free speech, because those fees went to change government policy on salary, benefits, and pensions. Accordingly, his fees were a direct form of speech.

On the other side, the union strongly advocated that Janus’s agency fees simply prevented “free-riding” from employees who benefit from the union's negotiations. AFSCME argued that, because it was obligated by law to represent the interests of both union and non-union members, the fees were a way for employees to pay their fair share for contact negotiations for which they clearly benefited from.

In a 5-4 decision, the Supreme Court agreed with Mark Janus’s position. Justice Alito wrote:  "Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned," Avoiding free riders, Alito wrote: "is not a compelling interest."

Today’s ruling is a clear indication public sector unions must double their efforts to obtain full membership from their fair share bargaining unit members.  Unions should clearly communicate about the many benefits of union membership, including the right to vote on a contract, lawyers for legal defense and the ability to vote in union elections.  Other member-only benefits will vary from union to union.

Non-members are not entitled to many of the benefits unions provide to their members.  For example, non-members do not have a right to vote on a contract (though they must be given some avenue to express their views), they do not have a right to have an attorney represent them in a discipline case or critical incident, they do not get to attend union meetings, and they do not have a right to other benefits a union may provide like access to the union hall, free or reduced cost classes for educational incentive credit or CPR, or special life and disability insurance.

Unions should also be aware of new state laws designed to protect their rights.  The Legislature passed Senate Bill 866 on June 18, 2018 and it is currently awaiting Governor Brown’s signature.  The bill requires payroll deductions for union dues and makes the union, not management, responsible for determining member consent to union membership.  This prevents anti-union employers from using Janus as an excuse to drop members from the rolls, but it also requires unions to be actively engaged.  Senate Bill 285 prohibits employers from discouraging employees to join the union or trying to get members to drop their membership.  Again, it require vigilance from union to enforce the law.  Assembly Bill 119 gives unions the right to access new employee orientations and get contact information for new hires.  To get the benefit of this law, unions must request to bargain over new member access.  Since many unions, particularly in public safety, already have established policies and practices for new member orientations, this law sets the floor, not the ceiling for access.   A number of other bills mitigate the immediate impacts of Janus and unions should develop a plan to maximize use of these tools and member outreach to retain and grow membership.