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.