Monday, July 23, 2018

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.

Wednesday, July 18, 2018

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In a recent unpublished decision, a police officers’ five day suspension for posting an off-duty Facebook comment regarding a matter of public concern was upheld.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. 

Friday, July 13, 2018

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.

Tuesday, July 10, 2018

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

On July 7th 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.