Friday, November 22, 2019

Mastagni Holstedt Gets PERB Complaint for Employer Refusal to Provide Information

Mastagni attorneys Kathleen Mastagni Storm and Chelsea Avent recently got a Public Employment Relations Board (“PERB”) Complaint issued against the County of Kern for refusing to provide relevant information to Kern County Fire Fighters Association, Local 1301. PERB concluded the County violated the Meyers-Milias-Brown Act by withholding the information from Local 1301.

For over a year, the County dragged its feet and engaged in bad faith bargaining. In July 2018, Local 1301 and the County began negotiations for a successor Memorandum of Understanding (“MOU”). The bargaining ended in a mediation and a fact finding hearing between the parties. Local 1301’s chief negotiator Robbie McCandlish and attorney Howard Liberman’s hard work during the hearing got a favorable fact finding report for Local 1301. The report noted the County had over $180 million in reserves, Local 1301 were the lowest paid personnel in the surveyed departments, and that members have seen minimal to no pay increases since 2008.

During bargaining, the County told Local 1301 it intended to cut approximately three million dollars from the Fire Department’s overall budget. The County insisted on concessions from Local 1301. Local 1301 decided to seek out alternative cost saving proposals in an effort to mitigate the harm a pay cut would have.

Beginning in October 2018, Local 1301 requested information regarding healthcare plans, member information, and claim details to obtain health care cost quotes from outside companies to formulate its proposals for group insurance plans during bargaining.

Between December and April 2019, the County slowly provided different variations of aggregate information for enrollment count, number of dependents, workers’ compensation claims, and annual medical claims. Local 1301 continued requesting the specific information and attempted to work with the County to find an agreeable way to provide the information that would not allow the identification of any members. It was not until April 2019 the County finally told Local 1301 it could not provide the information claiming it could violate health privacy laws.

PERB’s Complaint concluded the County refused to provide information relevant and necessary to Local 1301’s discharge of its duty to represent employees. Further, the County violated the MMBA by refusing to meet and confer in good faith over the requested information, interfering with members’ rights to be represented, and interfering with Local 1301’s right to represent members.

This decision confirms an employer’s duty to either supply relevant information or timely and adequately explain why it cannot provide the information. Even if the employer ultimately provides the requested information, it will not excuse an unreasonable delay.  An employer’s refusal to provide information amounts to bad faith bargaining in violation of the MMBA.

Tuesday, November 12, 2019

POST Issues New Video Providing Guidance AB 392 and Peace Officer Use of Force Standards

The Commission on Peace Officer Standards and Training ("POST") recently posted its legal analysis of A.B. 392 and its impacts on peace officer use of force standards.  The website inlcudes a link to a video available to the general public about use of force standards.  In the video, the Executive Director of POST Manuel Alvarez Jr., Riverside District Attorney Micahel Hestrin, and Santa Barbara District Attorney Joyce Dudley provide their insights and interpretations of A.B. 392, as well as a discuss of how they will apply the new law.

Any analysis of California's use of force standards should also include S.B. 230 which was Sponsored by PORAC and other law enforcment stakeholders. In addition to mandating minmum use of force standards and training, SB 230 also codifies important legal definitions that directly affect the application of A.B. 392, which utilizes the same terms (S.B. 230 was expressed coupled to the passage of A.B. 392.).  For example, “Feasible” is defined as "reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective without increasing risk to the officer or another person." (emphasis added.)  This definition clarifies that tactics increasing the risk to officers are not "feasible."  The law also clarifies that policies and training shall not be considered as imposing a legal duty on officers to act in accordance with such policies and training.  Tellingly, the ACLU vigorously opposed S.B. 230.

WATCH the ACLU's objections to S.B. 230 here.

The Mastagni Holstedt, APC analysis of the use of force legislation is available here:Modernizing Use of Force on Our Terms.

Friday, November 8, 2019

Appellate Court Holds That Police Are Not Liable for Destruction of Family Home

A recent Federal Appellate case clarifies that significant damage to real property resulting from a valid police pursuit is covered under a state's police power and is not a government taking. 

The case stemmed from events occurring in June of 2015. At that time, Greenwood City Police officers responded to a burglar alarm at the home of the Lechs. The responding officers, quickly learned that an armed criminal suspect who was attempting to evade capture was inside. In order to prevent escape, the officers positioned their vehicles in the driveway of the Lechs' home. Upon seeing this, the suspect fired a bullet from inside the garage and struck an officer's car. The officers deemed the incident a high-risk, barricade situation. 

Over the next several hours, negotiators attempted to resolve the situation. After these efforts proved unsuccessful, the officers released several rounds of gas munition into the house. They then breached the home's doors with a BearCat armored vehicle so they could send in a robot to deliver a "throw phone". They also used explosives to create sight lines and points of entry to the home. Eventually, officers used the BearCat to open multiple holes in the home and again deployed a tactical team to apprehend the suspect. Although the tactical team was successful, the Lech’s family home was rendered uninhabitable.

The City denied liability for the incident and declined to provide compensation to help rebuild the home. The Lechs then sued alleging the city violated the Takings Clause of both the United States and Colorado Constitutions by damaging the Lechs' home without providing just compensation.

The Appellate court, in an opinion that can only be cited for persuasive authority, held that the City did not have to compensate the Lechs. The court stated that the city was not responsible for the cost of rebuilding the home because (1) the law-enforcement actions fell within the scope of the police power; and (2) actions taken pursuant to the police power do not constitute a government taking since it is for the public good rather than public use.  However, this decision is not a blank check for the destruction of property during police pursuits. As the Court pointed out, police officers who willfully or wantonly destroy property may be responsible for civil damages.