Wednesday, August 28, 2019

The California Supreme Court Upholds the Legality of Brady Tips by Law Enforcement Agencies to District Attorneys

As predicted, in an opinion authored by Chief Justice Cantil-Sakauye, the California Supreme Court upheld the legality of “Brady tips” by law enforcement agencies to prosecutors when an officer is potential witness in a pending prosecution. It must be noted, however, that the Court’s decision did not change the fact that when an officer’s identifying information (i.e. name) is placed on a Brady list, that fact and information as to why the officer was placed on the Brady list is confidential by law under Penal Code section 832.7(a).

The long-awaited, unanimous decision was issued today and answered the question of whether a law enforcement agency may disclose to the prosecution the name and identifying number of an officer and that the officer may have relevant exonerating and impeaching material in that officer’s confidential personnel file. The Court ultimately held that a law enforcement agency does not violate Penal Code section 832.7(a) if they advise the prosecution that a pending, peace officer prosecution witness may have relevant exonerating or impeachment material in that officer’s confidential personnel file.

The Court’s decision is rooted in the Fourteenth Amendment to the United States Constitution that prohibits the states from denying any person due process of law. Based on the Fourteenth Amendment’s guarantee of the right to a fair trial, the United States Supreme Court in Brady v. Maryland (1963) 373 U.S. 83, held that prosecutors must disclose to the defense evidence that is “favorable” to the accused and “material” to guilt or punishment. Thus, if the evidence helps the defense or hurts the prosecution (i.e. it impeaches a prosecution witness) and if there is a reasonable probability that the failure to disclose such evidence could affect the result of the trial, the prosecution team has a constitutional obligation to provide that evidence to the defense.

This case began in 2016 when the Los Angeles County Sheriff’s Department advised approximately 300 deputies that the Department was going to provide their names to the Los Angeles County District Attorney’s Office because their personnel files contained potential exculpatory and/or impeachment material. The Association for Los Angles Deputy Sheriffs (“ALADS”) filed a writ of mandate and a complaint seeking preliminary and permanent injunctive relief to prohibit the Department from disclosing the names of its members. The trial court held that although the identifying information of officers is confidential, the Department is not barred from disclosing that an individual is on the Department’s Brady list when that deputy is a potential witness in a pending criminal prosecution. After ALADS appealed the trial court’s decision, the Court of Appeal held that absent a Pitchess motion the Department cannot even disclose to a prosecutor the name of an officer who may have Brady material in their personnel file.

The crux of the problem with the Court of Appeal decision was that without Brady tips a prosecutor would be unable to fulfill their constitutional Brady obligation to defendants. In fact, in their previous decision regarding confidentiality in peace officer personnel files, the same California Supreme Court praised Brady tips as a method of accomplish a workable balance between the confidentiality of peace officer personnel records and the fundamental due process rights of defendants.  

Mastagni Holstedt and the Berry Wilkinson Law Group were honored to file an amicus brief in this appeal on behalf of PORAC and the PORAC Legal Defense Fund asking the Court to detemine whether S.B. 1421 should be applied retroactively.  Unfortunately, the Court declined to address the retroactivity of SB 1421, the California Public Records Act exception to Pitchess which has been codified in Penal Code section 832.7(b).

Thursday, August 8, 2019

Relying Heavily on Mastagni Holstedt Case Law, PERB Clarifies That Peace Officer Unions Fall Under Its Jurisdiction

In 2016, the Association of Orange County Deputy Sheriffs (“Association”) filed an unfair practice charge against the County of Orange (“County”) alleging that the County violated their duty to meet and confer in good faith when they unilaterally made changes to the Office of Independent Review (“OIR”).  The County attempted to dismiss the case by arguing that PERB did not have jurisdiction over cases brought by peace officer organizations, citing a 2000 amendment to the MMBA that excluded peace officers from PERB’s jurisdiction.

The ALJ ultimately held that PERB has primary jurisdiction over cases brought by employee organizations that solely represent sworn peace officers, following precedent set in County of Santa Clara (2015) PERB Decision No.  2431-M.  A case Mastagni Holstedt successfully argued. The Board affirmed, relying heavily on Mastagni Holstedt’s arguments, adding that the plain language and legislative intent of the 2000 MMBA amendment could lead to no other conclusion.

It all started in 2016, when the County implemented changes to the OIR that included imposing new staff requirements, granting additional access to confidential records, changing how the County selects OIR’s executive director, and changing how OIR staff advise County personnel.  The County made these changes without meeting and conferring with the Association.  The Association filed an unfair labor practice claim with PERB, alleging that the County violated the MMBA when it changed the ordinance without giving the Association an opportunity to meet and confer over the decision or its effects. 

The County responded by arguing that PERB did not have jurisdiction over the claim because the Association represented peace officers and thus fell within an exception established by Government Code § 3511.  A 2000 amendment to the MMBA, Government Code § 3509, states that PERB has initial jurisdiction over MMBA violations.  (Gov. Code § 3509.)  Government Code § 3511 provided an exception to this rule, stating that § 3509 did not apply to “persons who are peace officers as defined in § 830.1 of the Penal Code.”  (Gov. Code § 3511.)  In Coachella Valley Mosquito & Vector Control Dist. v. California PERB (2005) 35 Cal.4th 1072, the California Supreme Court acknowledged this exception, stating explicitly that peace officers are exempt from PERB’s jurisdiction pursuant to Gov. Code § 3511.  Subsequent cases such as Paulsen v. Local No. 856 of Internat. Bhd. Of Teamsters (2011) 193 Cal.App.4th 823 addressed this issue and likewise affirmed that peace officers are exempt from PERB’s jurisdiction. 

The County argued that the above California Supreme Court cases establish that § 3511 deprives PERB of jurisdiction over claims “impacting” peace officers, including claims brought by organizations representing peace officers.  They also pointed out that courts have heard disputes brought by employee organizations that represent peace officers, which demonstrates that courts, and not PERB, have jurisdiction over such cases. 

The ALJ rejected the County’s argument, stating explicitly that PERB has jurisdiction over claims brought by employee organizations, including those representing peace officers.  In doing so, the ALJ followed precedent set in Santa Clara (2015) PERB Decision No. 2431-M.  In Santa Clara, the Board held that PERB has authority to hear charges brought by employee organizations, “including employee organizations representing or seeking to represent units including persons who are peace officers.” 

The Board affirmed the ALJ’s holding, stating again that PERB has primary jurisdiction over claims brought by employee organizations covered by the MMBA, including those that represent bargaining units composed partially or entirely of peace officers.

In its reasoning, the Board conducted a thorough statutory interpretation analysis of Government Code § 3511.  The plain language of § 3511 clearly states that § 3509 “shall not apply to persons who are peace officers.”  The Board emphasized that this reference to “persons” clearly means natural persons rather than associations or organizations, as the MMBA frequently articulates the difference between people and organizations, and thus would have done so here if both were intended to be included.  Further, whether the complainant is a person or an organization is dispositive when it comes to PERB standing, so the Legislature would have mentioned both if that was their intent.  Previous drafts of § 3511 referenced “any recognized employee organization representing persons who are peace officers” instead of “persons who are peace officers,” demonstrating that the Legislature was aware of the difference between the two and intentionally changed it to exclude organizations. 

The Board also pointed out that accepting the County’s argument would lead to absurd results when it comes to the use of factfinding panels to aid in the resolution of bargaining disputes between employee organizations and public agencies.  When public employers and employee organizations are unable to reach agreement, they may request that their differences be submitted to a factfinding panel.  PERB is required to be involved in these factfinding panels by selecting a neutral chairperson.  This process is available to all public employee organizations without regard to whether the employee organization represents peace officers.  Thus, if the County’s interpretation was correct, PERB would be involved in factfinding panels for employee organizations representing peace officers, but would not have the jurisdiction to otherwise be involved.

Finally, in addressing the County’s arguments, the Board soundly rejected the idea that § 3511 meant to exclude all cases “impacting” peace officers.  The Board held that the County had placed too much weight on a footnote in Association v. County of El Dorado (2016) 244 Cal.App.4th 950, which cited § 3511 as authority for the statement that “labor disputes relating to peace officers… are not subject to PERB jurisdiction.”  The Board argued that this footnote was an unnecessary explanatory comment not related to the issue of that case, and thus was merely dicta with no binding authority. 

After making the determination that PERB indeed had jurisdiction over the case, the Board turned to examine whether the County had committed an unfair labor practice.  Ultimately, both the ALJ and Board dismissed the Association’s claim on its merits, stating that the changes the County made to OIR policy fell outside the scope of representation and was inadequate to support a claim that the County made an unlawful unilateral change. 

This case serves an important reminder that while Government Code § 3511 excludes from PERB’s jurisdiction claims brought by Penal Code § 830.1 peace officers, PERB has primary jurisdiction over claims brought by employee organizations covered by the MMBA, including those that represent peace officers. This includes organizations that represent or seek to represent bargaining units composed partially or entirely of § 830.1 peace officers.