Court of Appeals Clarifies that Denial of Promotion Based on Behavior Occurring Prior to a Probationary Promotion Does Not Trigger Appeal Rights Under POBRA.

A recently published case from the Second District Court of Appeals, clarifies when a probationary employees is entitled to appeal rights under the Public Safety Officers Procedural Bill of Rights (“POBRA”). In Conger v. County of Los Angeles, the Los Angeles County Sheriff’s Department rescinded Thomas Conger’s probationary promotion to lieutenant based on investigatory findings that he had failed to report a use of force occurring several months before his probationary promotion.

Conger argued that rescinding his promotion based on alleged conduct occurring before he was elevated to his probationary position constituted a demotion or a “denial of promotion on grounds other than merit,” thus entitling him to an administrative appeal under POBRA.  However, the appellate court disagreed. It held that the Department’s decision to deny him a promotion was in fact “merit-based.” Specifically, the court noted that Conger did not dispute that the Department concluded he had failed to document a use of force. For that reason, the Court found that the reason was in fact “merit-based.” Thus, under the language of the statute, Conger was not entitled to an administrative appeal even if the Department deliberately chose to deny his promotion as a substitute for punitive action. Here it is also important to note that the Court clarified that Conger did not yet have a “vested property interest” in his promoted position, thus POBRA’s appeal rights would also not apply.

Lastly, the Court made a specific finding that Conger has failed to show that the written evaluation detailing his unreported use of force would impact his career adversely in the future apart from the loss of his probationary position.

The entire case can be read here.

CalPERS Board of Administration Cracks Down on Employers and Third-Party Independent Contractor Agreements.

In a recent published decision by the CalPERS Board of Administration, a warning shot was fired to third party contractors attempting to skirt CalPERS contributions.  The case, Fuller v. Cambria Services began in early 2014 after Cambria Community Services District’s (“CCSD”) long-time Finance Manager gave a 30-day notice that he was retiring.

The notice came at a time when CCSD was starting an emergency water project requiring the immediate assistance of another skilled financial manager. Tracy Fuller was hired CCSD to fill that role. However, she was hired through Regional Government Services (RGS) as an interim replacement. RGS provides individuals, mostly professionals, to small and midsize public agencies to perform work.

RGS itself is not a CalPERS covered agency. RGS classifies individuals as employees of RGS and itself as an independent contractor of the CalPERS covered agencies, thereby seeking to avoid the application of CalPERS pension laws to the individuals' work assignments. RGS currently provides individuals to about 100 public agencies, and has served about 225 public agencies since it started operating in January 2002.

CCSD treated her as an employee of RGS and did not offer her membership in CalPERS or any other retirement or health benefits. CCSD also did not require Fuller to complete its standard new employee documentation or give her a typical new employee orientation. She was given an office, phone, access to some CCSD computer systems, and a CCSD email address, but no laptop computer unlike other CCSD management personnel.

In July 2015, CalPERS sent CCSD a draft audit report stating that Fuller should have been enrolled in CalPERS as an eligible employee under the "common law test of employment." CCSD responded that Fuller was not an employee of CCSD, but of RGS.

After examining all the evidence, the CalPERS Review Board determined Fuller was an employee of CCSD who should have been enrolled into CalPERS membership when she worked as CCSD's Interim Finance Manager. In a well drafted 14-page decision, the Board clearly established that Fuller was CCSD's employee for purposes of membership in CalPERS and should have been enrolled.

Specifically, the evidence established that CCSD had the right to control the manner and means by which Fuller accomplished the result desired, which is the principal test of an employment relationship. In fact, CCSD explicitly chose Fuller for the assignment, and RGS lacked the authority to reassign Fuller without CCSD's consent. At the same time, CCSD could end Fuller's services at any time by requesting a reassignment or terminating its agreement with RGS.

Finally, CCSD should have reasonably been expected to have known of the enrollment requirement since it was filling a longtime employee position, albeit on an interim basis. Accordingly, CCSD was ordered to pay arrears costs for member contributions and administrative costs of $500 due to the error.

U.S. Supreme Court Rules Probable Cause Will Generally Defeat A Claim of Retaliatory Arrest

On May 28th, the U.S Supreme Court released it much anticipated ruling in the case of Nieves v. Bartlett. The case arrived before the Supreme Court after Bartlett was arrested in 2014 by police Officers Luis Nieves and Bryce Weight. He was arrested based on probable cause for harassment, disorderly conduct, and resisting arrest. The arrest came after Bartlett allegedly interfered with officers investigating a case of suspected underage drinking. The details are disputed, including whether, after handcuffing Bartlett, Officer Nieves said: “Bet you wish you would have talked to me now.”

Although the charges against Bartlett were eventually dropped, he filed suit against both officers. He claimed his free speech rights were violated. The 9th Circuit in San Francisco ruled that the lawsuit could go forward despite the fact that there was probable cause to make an arrest. Specifically, the lower court ruled that based on Sergeant Nieves’s alleged statement to of “bet you wish you would have talked to me now,” a reasonable jury could find both officers arrested Bartlett in retaliation for his refusal to answer Sergeant Nieves’s questions earlier in the evening. The case was appealed to the Supreme Court.

In a nearly unanimous decision, the Supreme Court held that “if there was probable cause to make the arrest, that generally will be enough to keep a lawsuit from moving forward...otherwise...policing certain events like an unruly protest would pose overwhelming litigation risks…any in artful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation.”