Governor Newsom Signs Executive Order Extending POBR’s Statutory Deadline by 60 Days

Yesterday, Governor Newsom signed Executive Order N-40-20. This order extended many important deadlines throughout California in light of the current State-Wide Shelter-in-Place Order. Importantly, the Executive Order extends the one-year statute of limitations found within  the Peace Officers Procedural Bill of Rights.

Under the Peace Officers Procedural Bill of Rights Act (G.C. § 3300-3312) there is a one-year statute of limitations for the completion of an investigation and notification to an employee of proposed disciplinary action. Specifically, G.C. §3304 (d) states that: “except as provided in this subdivision and subdivision (g), no punitive action, … shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one-year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.” However, there certain situations in which the one-year statute of limitations may be tolled—including the completion of a criminal investigation. Governor Newsom’s order extends this important deadline by 60 days.

New Guidance About Disclosures of Protected Health Information Regarding COVID-19 Exposures and Infections

The Office for Civil Rights at the US Dept. of Health has issued new guidance on when COVID-19 exposures and infections can be disclosed to first responders. The HIPAA Privacy Rule permits a covered entity to disclose the protected health information (PHI) of an individual who has been infected with, or exposed to, COVID-19, with law enforcement, paramedics, other first responders, and public health authorities without the individual’s HIPAA authorization, in certain circumstances. The guidance can be found at https://www.hhs.gov/sites/default/files/covid-19-hipaa-and-first-responders-508.pdf.  

Mastagni Holstedt, A.P.C. Will Remain Open to Represent Our Public Safety Clients Throughtout the COVID-19 Response

Mastagni Holstedt, A.P.C. is privileged to represent first responders throughout California.  Our entire firm will remain open to assist and represent our clients throughout the response to COVID-19.  We are committed to providing essential services and representation to those we rely upon to protect us.

In addition to responding to critical incidents and administrative investigations, our firm is ready to respond to the unique labor issues confronting public safety employees and their unions with respect to COVID-19.  Potential and actual exposure to the COVID-19 are heightened concerns for first responders.  COVID-19 raises a multitude of labor issues and representational needs, many of which trigger meet and confer obligations.  These issues include:

• Consideration of  COVID-19 as a presumptive work-related injury
• Provision of 4850 benefits for all employees who contract COVID-19
• Accommodations for employees in high risk groups
• Allowance of telecommuting for employees who can work from home
• Allowance of employees to utilize accrued leaves if they wish to self isolate
• The right to be placed on paid administrative leave if ordered home or quarantined after an exposure, until confirmed to have contracted COVID-19 or is cleared to return to work by a medical professional.
• Accommodations (hotel, browned out station, etc.) at the agency's expense if quarantined
• Meeting and conferring over a variety of additional working condition issues (e.g., workplace safety, testing, schedule changes, contacts with the public, etc.) 

Our firm is proud to provide these essential services to our clients who place themselves at risk for the public's safety during these difficult times.

Mastagni Firm Responds to Release of Elk Grove PD Video Depicting June 5, 2019, Arrest of Robbery Suspects

Additional information and facts not previously released

Elk Grove, California – On March 12, 2020, the Elk Grove Police Department released a video depicting the arrest of two (2) suspects who engaged in a violent altercation with employees during a robbery at the Burlington Coat Factory on June 5, 2019.  This video omitted relevant facts available to the officers, and failed to consider the applicable legal standards governing the officers’ actions. The appropriateness of the officers’ actions is in the process of being adjudicated.

Because the Department released selective information regarding this incident prior to affording Officer Schmidt his due process rights, this video is being released to provide the public all relevant facts constituting the “totality of the circumstances” and the legal justifications for force.  Under A.B. 392, law enforcement use of force is evaluated under the “totality of the circumstances”, defined as all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of force.

MastagniHolstedt, A.P.C., a law firm specializing in representing first responders and their employee associations, asked Sean McCann, an expert in police tactics and training, to review the video released by the Elk Grove Police Department, as well as the dispatch advisements to the officers.  This video contains Mr. McCann’s opinions on the appropriateness of Officer Schmidt’s actions.

Here is a link to the video produced to discuss the additional facts and provide the analysis: 

PERB Clarifies MMBA Protects Union Members Who Send Emails to County Board of Supervisors Advocating for MOU Terms

Recently, the Public Employee Relations Board (“PERB”) ruled that a union representative engaged in MMBA-protected advocacy by sending e-mails to the County Board of Supervisors in order to persuade the Supervisors to direct the County to put “money on the table.”

In County of Tulare, Charging Party, v. Service Employees International Union Local 521, Respondent; Service Employees International Union Local 521, Charging Party, v. County of Tulare, Respondent 44 PERC ¶ 141, Tulare County filed an unfair labor practice charge alleging that Service Employees International Union (“SEIU”) violated the Meyers-Milias-Brown Act (“MMBA”) by engaging in bad faith bargaining during negotiations for a memorandum of understanding (MOU).

Specifically, the Tulare County claimed that SEIU unit representative Kermit Wullschleger lost the MMBA’s protection for advocacy when he sent several e-mails to the County’s Board of Supervisors advocating proposals that had already been made in prior negotiations. The county claimed this was an MMBA violation because it was “direct dealing.”

However, PERB did not find that Wullschleger’s behavior was an unfair labor practice. In fact, PERB clarified that: “an exclusive representative has a right to engage in direct and indirect advocacy with an employer’s elected and unelected officials, up to and including the employer’s highest levels, provided that the exclusive representative does not make new collective bargaining proposals that the exclusive representative has not already made in negotiations with the employer’s chosen bargaining team.”  As the PERB decision highlighted, the union was “well within its right to public advocacy.”

This is an important reminder that Union negotiations teams are permitted to directly advocate with their respective Board of Supervisors during contract negotiations.