Friday, May 18, 2018

Court Dismisses POBR Suit Over Denial of Request for Representation in Inspector General's Investigation and Awards State Fees Under Anti-SLAPP statute

In Blue v. California Office of the Inspector General 2018 WL 2147858, California’s Inspector General successfully denied the right of several correctional officers to be represented during interviews conducted as part of an institutional review of High Desert State Prison. 

During the summer of 2015, the California Senate Rules Committee issued a letter to the State Inspector General authorizing his office to review the practices at High Desert State Prison. The primary focus of the review was the prisons practices regarding excessive use of force against inmates.

As part of the investigation, five correctional officers—who previously worked at the state prison—were interviewed. Each of the former employees requested representation during each interview. All five of their request were denied. They were told they were not under investigation and nothing said would be used to pursue an investigation, or recommend an investigation be opened. Despite the assurances, several of the officers voiced concern that questions asked at the interview may lead to punitive action for failure to report misconduct.

After the interviews concluded, the five former High Desert State Prison Employees filed suit alleging that the Inspector General violated the Public Safety Officers Bill of Rights (“POBRA”) by refusing each employee’s request to be represented during the interviews. In response, the Inspector General’s Office filed an Ant-SLAPP Motion.

California’s Anti-SLAPP statue allows a defendant to move for dismissal of a lawsuit if it can successful argue that the suit was brought in order to deny a person’s right to free speech. Specifically, the Act provides that “a cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

In granting the Inspector General’s Anti-Slapp Motion, the Appellate Court held that review of High Desert State Prison concerned a topic of widespread public interest and the report issued to the Senate contributes to a public discussion of the topic. The Court also commented that “had the defendants known they would be required to defend against meritless claims arising out of their interviews with the individual correctional officer plaintiffs without the ability to have those claims stricken at an early stage in the proceedings under the anti-SLAPP statute, it is entirely possible they would have conducted the review without interviewing those plaintiffs at all, and thereby would have lost valuable information forming at least part of the basis for a number of the OIG’s recommendations regarding policy improvements at High Desert State Prison. Simply put, public discussion of this important issue may well have been chilled.”

Finally, the Court stated that “none of [the five officers] had a reasonable basis to believe their interviews with the [Inspector General] could lead to punitive action against them.” Thus, there was no basis for invoking POBRA rights. However, the Court failed to address how the act of simply allowing a representative into that meeting would “chill free speech.”  

This case illustrates the pressing need to amend the Anti-SLAPP statute to exclude public sector labor litigation.  The Anti-SLAPP statute was enacted to prevent lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.  This case is the latest in a line of cases subjecting public employees and their unions to the threat of significant fee liability when they seek to enforce labor statutes.

POBRA Entitles Peace Officers to Investigation Notes and Source Materials

A recently published Appellate Court case clarifies that Section 3303 of POBRA requires public employers to disclose original source materials placed within final investigative reports prior to Skelly hearings.  

In James Davis v. County of Fresno, a supervising juvenile correctional officer was terminated. Prior to his termination, James Davis was served with a Notice of Intent to terminate, as well as, a packet of information containing an Internal Affairs Report and a 2012 Memo. Both the IA report and the 2012 Memo referenced certain attachments. The attachments were not provided to Davis.   

On appeal, Davis alleged the County’s failure to produce those documents violated his procedural due process rights that apply before his Skelly hearing.  In addition, Davis alleged the failure to produce the requested documents violated his rights under POBRA, Government Code section 3303 (g), which states a peace officer is entitled to “any reports and complaints.”

The court held materials delivered prior to Davis's Skelly hearing satisfied the requirements of due process applicable before disciplinary action was imposed, but that the County violated Davis's right under POBRA to receive “any reports or complaints made by investigators or other persons.”

The court analyzed the facts under Gilbert v. Sunnyvale (2005), stating the materials provided to Davis were only required to 1) adequately explain the employer’s evidence, and; 2) provide notice of the substance of the evidence so that Davis could adequately respond at the Skelly hearing.  However, the Court suggested that Davis might have been able to carry his burden by demonstrating how his response at the Skelly hearing would be hindered by the absence of the attachments, but David never made this demonstration and the Court held Davis’s pre-removal safeguards under due process were not violated.

However, the Court interpreted the term “any reports” to include the incident reports and interview transcripts attached to a September 2012 memorandum that was authored/prepared by a special probation investigator. The Court specifically appealed to POBRA’s legislative intent that providing officers with a copy of the attachments to an investigative memorandum helps assure the integrity of the report because the officer will be able to check the source documents to determine if they are accurately described in the memorandum. Thus, interpreting the term “report” to include attachments furthers POBRA's purpose of promoting stability, integrity and public confidence in law enforcement.

This case illustrates the importance of serving disciplinary discovery requests under multiple statutory and Constitutional grounds.  Generally, public safety union members have due process discovery rights under Skelly, the MMBA, and the POBR/FFBOR.  Had Davis only requested the information under Skelly he would not have prevailed. Discovery of source materials and investigative notes are often critical in refuting the conclusions and summaries contained in disciplinary investigations.  

AB 2154 Provides Minimum Paid “Release Time” for Union Activities

On February 12, 2018, Assembly Member Rob Bonta introduced AB 2154. The proposed legislation standardizes and expands “release time” for employees engaging in union activities without loss of compensation. AB 2154 mandates that that an employer provide a “reasonable” number of employees paid time off in order to conduct union activities including: 1) investigating potential or existing grievances; 2) meeting and conferring on matters within the scope of representation; and 3) testifying before public agencies.

Wednesday, May 9, 2018

Round One in the final showdown over the “California Rule”: Mastagni Holstedt files Alameda DSA’s Opening Brief in the California Supreme Court

On behalf of the Alameda County DSA, our office filed an opening brief last week with the California Supreme Court in Alameda County Deputy Sheriffs’ Association v. Alameda County Employees Retirement Association. The State of California and the Contra Costa Sanitation District appealed the lower court’s decision seeking to reverse a favorable part of the ruling that found legacy members could recover damages under a theory of promissory estoppel for the exclusion of various pay items from their pension calculations.  Not surprisingly, neither the Governor nor the Sanitation District appealed the Appellate court’s ruling that inclusion of terminal pays in pensions is not a vested right.  They also did not appeal the court’s reversal of the “California Rule” by holding that pension benefits could be reduced without providing any new offsetting advantage. Accordingly, we appealed those issues.  The Supreme Court had delayed ruling on the similar Marin and Cal Fire  appeals pending this action.  The Supreme Court’s decisions in these appeals will likely determine whether the Governor can use employees’ pension funds as a funding source for other spending priorities– a course of action he has already endorsed if the lower court’s ruling stands.

A copy of the brief can be found here:

Tuesday, May 8, 2018

PERB Approves Demand for Fact Finding Over Gun Policy

In 2016, the Ventura County Professional Peace OfficersAssociation (“Association”) and the County of Ventura began negotiating a Firearm Manual. In January of 2017, an impasse was declared over negotiations regarding a specific chapter covering the conduct of armed probation officers.

In February of 2017, the Association filed a request for factfinding with the Public Employees Relations Board (“PERB”). The request was made pursuant to Section 3505.4 of the Meyers-Milias-Brown Act (“MMBA”), as well as, PERB Regulation 32802.

Ventura County objected to the factfinding request. It argued that the policy at issue in the Firearm Manual addressed the use of force by sworn staff. According to the County, matters concerning use of force are not within the scope of representation and therefore not subject to factfinding under the MMBA.  The Association responded that because the Firearm Manual involves the use of deadly force standard applicable in the discharge of a firearm, it is a matter of employee safety and therefore within the scope of representation.

PERB’s Office of the General Counsel issued an administrative determination approving the Association’s request for factfinding. It held that it was not required to determine whether a matter is within the scope of representation before approving a factfinding request. Since the Office of the General Counsel’s role is limited to determining whether the conditions of MMBA section 3505.4 and PERB Regulation 32802 have been met, it was not empowered to determine whether the dispute or difference subject to factfinding is a matter within the scope of representation. As a result, it approved the Association’s request that the parties’ bargaining dispute be submitted to a factfinding panel.

The County appealed this administrative determination.  According to the County, the Office of the General Counsel should have first assessed whether the matter submitted to the factfinding was a matter within the scope of representation.

In ruling against the County, PERB noted that although factfinding is ultimately required only for disputes over matters within the scope of representation, the Office of General Counsel is not required in every case to make a definite determination to that effect before approving a factfinding request. Such a process is unwieldy and generally inconsistent with the time-sensitive nature of the factfinding process.

According to PERB, the principal purpose of factfinding is to assist the parties in reaching a voluntary and prompt resolution to their dispute through intervention of a neutral. To require a preliminary determination as to whether a matter is within the scope of representation before approving a factfinding request “would encourage both delay and gamesmanship, thus defeating the principal purpose of factfinding.”