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.