Sonoma County Law Enforcement Association (SCLEA) Wins PERB Charge Rendering Changes to Independent Law Enforcement Review Board Procedures Void

On June 23, 2021, the Public Employment Relations Board (PERB) found the County of Sonoma violated the Meyers-Milias-Brown Act (MMBA) by unilaterally placing Measure P on the November 2020 ballot. Measure P significantly increased the authority of the County’s Independent Office of Law Enforcement Review and Outreach (IOLERO). In part, Measure P authorized IOLERO to independently investigate Sheriff Office employees, recommend discipline, directly access and review evidence from confidential internal affair files, and post body worn camera videos online.

 

Timeline of the case:

August 6, 2020 - The Sonoma County Board of Supervisors unilaterally voted to place Measure P on the November ballot – one day before the submission deadline – without providing SCLEA notice or an opportunity to meet and confer.  “We have never endured such a coordinated, targeted attack on our membership as we experienced with the Measure P (Sheriff’s Oversight commission) proponents,” stated Damian Evans, president of Sonoma County Law Enforcement Association. 

 

August 17, 2020 -  Rain, Lucia, Stern, St. Phalle and Silver law firm (RLSSS) filed a standard PERB charge on behalf of Sonoma County Deputy Sheriffs’ Association (DSA)

 

August 20, 2020 - SCLEA filed its PERB charge which included additional allegations and a Request for PERB to Expedite the charge at all levels. SCLEA fully briefed why the changes were within the scope of bargaining and how refusing to provide SCLEA notice and an opportunity to bargain violated its right to represent its members and its members’ rights to be represented in violation of the Meyers-Milias-Brown Act.

 

Following SCLEA’s charge, the DSA amended its PERB charge alleging the same violations, requested to join SCLEA’s motion to expedite, and consolidate the two cases. Given the shared interests of our respective clients, Mastagni attorneys Kathleen Mastagni Storm and Tashayla Billington worked collaboratively with Zack Lopes and Timothy Talbot from RLSSS to establish precedent benefitting the entire California law enforcement community. 

 

“Measure P adversely impacted primarily our client SCLEA and the Sonoma County Deputy Sheriff’s Association,” said attorney, Kathleen Mastagni Storm. “As a result, SCLEA and the DSA were left no choice but file unfair practices charges with PERB.”

 

September 4, 2020 - PERB granted SCLEA’s Request to Expedite at all levels and the matter was scheduled for hearing before Administrative Law Judge Shawn Cloughesy on October 20, 2020. 

 

Accordingly, SCLEA took lead at the hearing and presented evidence that Measure P changed disciplinary procedures, affected overtime, increased workload, and affected its members’ safety by granting IOLERO the authority to unilaterally post body worn camera videos without adhering to Department safety precautions. The DSA assisted by presenting further evidence bolstering the unions’ position that the County was obligated to meet and confer prior to placing Measure P on the ballot. 

 

June 23, 2021 - PERB found the County violated the Meyers-Milias-Brown Act (MMBA) by unilaterally placing Measure P on the November 2020 ballot. PERB held Measure P was subject to bargaining over both the decision and impacts and effects. 

 

PERB also rejected the County’s argument that it could simply meet and confer with SCLEA over the “implementation” of its decision to amend IOLERO’s authority. As such, PERB found the County had a duty to provide SCLEA notice and an opportunity to meet and confer in advance of placing Measure P on the ballot. 

 

Because Measure P passed before PERB rendered its decision, the Board declared nearly all of the amendments “void/unenforceable” and severed them from the rest of the Ordinance. PERB ordered the County cease and desist its unlawful conduct.

 

“This decision is an enormous victory for public safety bargaining,” exclaimed Mastagni Storm. “Many cities and counties are creating and expanding the authority of its citizen review boards. However, this decision makes it clear that the employer must still provide notice and meet and confer with its public safety unions before making changes related to discipline, investigations, and confidential files.”

 

“In these ever-changing times, legal defense needs to be spot on with not only the legal merits, but how to plead them in a way to achieve a favorable outcome, which is exactly what I personally witnessed our attorneys do in this case,” said Evans. “We are very grateful that our members’ rights and livelihoods have been, are, and will be protected.”

 

Background on Measure P:

Measure P significantly expanded the Independent Office of Law Enforcement Review and Outreach’s (IOLERO) authority, granting it the ability to conduct independent investigations, issue subpoenas, recommend discipline criteria and procedures, conduct critical incident investigations, access personnel records and permanently defund a portion of the Sheriff’s Office budget by mandating a permanent allocation to IOLERO). 

To read PERB’s full decision: Click Here.

Employers Allowed to Ask for Vaccination Status But Employees Not Required to Answer

Employees are not required to divulge their vaccination status. However, if they do not, they must wear a mask.

Employers can ask employees to attest that they have been fully vaccinated. Employees who attest to being fully vaccinated may go mask-less.  An attestation is different than providing your vaccination card or medical records. Employers limit their inquiry by only asking for attestations to avoid HIPPA or other legal issues because you have a right to keep your medical records private. 

Policies and government orders are rapidly changing, so keep in mind that rules this week may not be rules next week.

Sonoma County Law Enforcement Association (SCLEA) Wins PERB Charge Rendering Changes to Independent Law Enforcement Review Board Procedures Void

On June 23, 2021, the Public Employment Relations Board (PERB) found the County of Sonoma violated the Meyers-Milias-Brown Act (MMBA) by unilaterally placing Measure P on the November 2020 ballot. Measure P significantly increased the authority of the County’s Independent Office of Law Enforcement Review and Outreach (IOLERO). In part, Measure P authorized IOLERO to independently investigate Sheriff Office employees, recommend discipline, directly access and review evidence from confidential internal affair files, and post body worn camera videos online.

 

Timeline of the case:

August 6, 2020 - The Sonoma County Board of Supervisors unilaterally voted to place Measure P on the November ballot – one day before the submission deadline – without providing SCLEA notice or an opportunity to meet and confer.  “We have never endured such a coordinated, targeted attack on our membership as we experienced with the Measure P (Sheriff’s Oversight commission) proponents,” stated Damian Evans, president of Sonoma County Law Enforcement Association. 

 

August 17, 2020 -  Rain, Lucia, Stern, St. Phalle and Silver law firm (RLSSS) filed a standard PERB charge on behalf of Sonoma County Deputy Sheriffs’ Association (DSA)

 

August 20, 2020 - SCLEA filed its PERB charge which included additional allegations and a Request for PERB to Expedite the charge at all levels. SCLEA fully briefed why the changes were within the scope of bargaining and how refusing to provide SCLEA notice and an opportunity to bargain violated its right to represent its members and its members’ rights to be represented in violation of the Meyers-Milias-Brown Act.

 

Following SCLEA’s charge, the DSA amended its PERB charge alleging the same violations, requested to join SCLEA’s motion to expedite, and consolidate the two cases. Given the shared interests of our respective clients, Mastagni attorneys Kathleen Mastagni Storm and Tashayla Billington worked collaboratively with Zack Lopes and Timothy Talbot from RLSSS to establish precedent benefitting the entire California law enforcement community. 

 

“Measure P adversely impacted primarily our client SCLEA and the Sonoma County Deputy Sheriff’s Association,” said attorney, Kathleen Mastagni Storm. “As a result, SCLEA and the DSA were left no choice but file unfair practices charges with PERB.”

 

September 4, 2020 - PERB granted SCLEA’s Request to Expedite at all levels and the matter was scheduled for hearing before Administrative Law Judge Shawn Cloughesy on October 20, 2020. 

 

Accordingly, SCLEA took lead at the hearing and presented evidence that Measure P changed disciplinary procedures, affected overtime, increased workload, and affected its members’ safety by granting IOLERO the authority to unilaterally post body worn camera videos without adhering to Department safety precautions. The DSA assisted by presenting further evidence bolstering the unions’ position that the County was obligated to meet and confer prior to placing Measure P on the ballot. 

 

June 23, 2021 - PERB found the County violated the Meyers-Milias-Brown Act (MMBA) by unilaterally placing Measure P on the November 2020 ballot. PERB held Measure P was subject to bargaining over both the decision and impacts and effects. 

 

PERB also rejected the County’s argument that it could simply meet and confer with SCLEA over the “implementation” of its decision to amend IOLERO’s authority. As such, PERB found the County had a duty to provide SCLEA notice and an opportunity to meet and confer in advance of placing Measure P on the ballot. 

 

Because Measure P passed before PERB rendered its decision, the Board declared nearly all of the amendments “void/unenforceable” and severed them from the rest of the Ordinance. PERB ordered the County cease and desist its unlawful conduct.

 

“This decision is an enormous victory for public safety bargaining,” exclaimed Mastagni Storm. “Many cities and counties are creating and expanding the authority of its citizen review boards. However, this decision makes it clear that the employer must still provide notice and meet and confer with its public safety unions before making changes related to discipline, investigations, and confidential files.”

 

“In these ever-changing times, legal defense needs to be spot on with not only the legal merits, but how to plead them in a way to achieve a favorable outcome, which is exactly what I personally witnessed our attorneys do in this case,” said Evans. “We are very grateful that our members’ rights and livelihoods have been, are, and will be protected.”

 

Background on Measure P:

Measure P significantly expanded the Independent Office of Law Enforcement Review and Outreach’s (IOLERO) authority, granting it the ability to conduct independent investigations, issue subpoenas, recommend discipline criteria and procedures, conduct critical incident investigations, access personnel records and permanently defund a portion of the Sheriff’s Office budget by mandating a permanent allocation to IOLERO). 

To read PERB’s full decision: Click Here.

Sixth Circuit Rules Deputies are Entitled to Summary Judgment on Qualified Immunity Where Allegations of Excessive Force are “Blatantly Contradicted” by Dashboard Cameras

 In Cunningham v. Shelby County, Tennessee (6th Cir. 2021) 994 F.3d 761, the Sixth Circuit Court of Appeals highlighted the important benefits officers enjoy from body worn and dashboard cameras in granting two deputies qualified immunity. The appellate court reversed the district court’s denial of summary judgment noting that courts do not have to view the disputed facts in the light most favorable to the plaintiff when the plaintiff’s allegations are “blatantly contradicted” by the video footage.  Instead, the court must view the facts in the light depicted by the videotape.  The court also held the consideration of still frame footage after-the-fact violated the Constitutional prohibitions against hindsight review set forth in Graham v. Connor.   Lastly, the court held the deputies were not required to wait until the outstretched gun was pointed directly at them.

In Cunningham, three deputies responded to a 911 caller who told the dispatcher “she was depressed and suicidal, that she had a gun, and that she would kill anyone who came to her residence.”  After the deputies arrived, the caller walked out her front door with something in her right hand, which was later determined to be a BB handgun but resembled a .45 caliber pistol. The video recorded by the dashboard camera shows that she began walking towards the driveway and, as she proceeded, began to raise the handgun.  One deputy yelled out to her and a deputy fired one round.  She continued walking with her arm extended horizontally with her pistol pointed towards her car.  The second deputy then fired.  She reached the car, leaned on the hood and turned towards the house.  The firing continued as she took a few steps and collapsed.

The parties disputed whether the video showed her starting to turn towards the deputies.  Ten shots were fired, eight struck the subject.  Although not visible to the deputies, nor the normal speed video, she deposited the gun on the hood before turning.

In analyzing qualified immunity, the court considered whether the law “clearly established” that the lethal force used here violated a Fourth Amendment right “of which a reasonable person would have known.”  The trial court denied qualified immunity based published cases that involved factual disputes over whether the subjects had pointed a weapon or used one in a threatening manner. Those cases involved factual disputes based on witness testimony and forensic experts—not video footage.  Significantly, the appellate court explained that because the events in this case are recorded on video, the facts are viewed in the video's light, not in a light favorable to the plaintiff (the usual standard for summary judgment). 

The appellate court explained that because of the existence of video footage, “there is no dispute about how the shooting ...unfolded. Our task is to determine whether the videotapes portray a constitutional violation of the kind that a reasonable deputy should have understood.”  Noting the threatening nature of the call, the court credited the deputies’ perception that the subject was turning with the gun and posed an imminent threat of death or great bodily injury, and noted its consistency with the video.

Notably, the appellate court was “troubled by the district court's use of ‘screen shots’ to analyze the dashcam videos.”  The court held such reliance violates “the teaching of Graham against judging the reasonableness of a particular use of force based upon 20/20 hindsight.”  The trial court pinpointed moments to establish what occurred, but conceded the moments to not tell the full story in light of how quickly it occurred.  The appellate court forcefully concluded, “[t]he deputies’ perspective did not include leisurely stop-action viewing of the real-time situation that they encountered. To rest a finding of reasonableness on a luxury that they did not enjoy is unsupported by any clearly established law and would constitute reversible error.”

This case exemplifies both the significant benefits to both the public and officers from body worn and/or dashboard cameras. Moreover, the error of the trial court provides a stark reminder that still frame, slow motion, and enhanced video footage often do not accurately reflect what an officer can reasonably perceive and process in a split-second while lives hang in the balance.

California First District Court of Appeal Creates a Split in Authority on Whether Peace Officers Are Entitled to Reports and Complaints While Under Administrative Investigation.

A recent decision from the First District Court of Appeal represents a split of authority on the issue of whether a peace officer under administrative investigation is entitled to receive copies of reports and complaints prior to being subject to a second interrogation.

Government Code Section 3303(g) provides the following:

The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer’s personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.

While Section 3303(g) is clear that any tape recordings must be provided to the officer prior to a subsequent interrogation, the question at issue is whether reports and complaints mentioned in the following sentence are also subject to those same timing requirements.

The ruling authority on this issue prior to the First District Court of Appeal’s decision came from the Fourth District Court of Appeal’s decision in Santa Ana Police Officers Association v. City of Santa Ana (2017) 13 Cal.App.5th 317 (“Santa Ana POA”). There the Court held that peace officers must be furnished with all tape recordings, stenographer notes, reports and complaints prior to any subsequent interrogation. The Court relied on the Supreme Court’s decision in Pasadena Police Officers Association v. City of Pasadena (1990) 51 Cal.3d 564 (“Pasadena POA”) in coming to that conclusion.

In Pasadena POA, the Supreme Court stated that the peace officer’s rights to reports and complaints were “coextensive” to their rights to tape recordings, since the sentence regarding reports and complaints follows directly from the sentence regarding tape recordings. However, the issue in Pasadena POA was whether a peace officer had the right to receive reports and complaints prior to an initial interrogation, not after an initial interrogation.

The First District Court of Appeal’s recent decision in Oakland Police Officers Association v. City of Oakland (2021) Cal.App.5th (“Oakland POA”) rejects the Fourth District Court of Appeal’s interpretation of Section 3303(g) stating that the language of Section 3303(g) is clear that tape recordings must be provided prior to a subsequent interrogation, while reports and complaints need only be provided to the extent that they are not deemed confidential. The Court also relied on Pasadena POA but focused instead on the Supreme Court’s balancing of peace officers’ rights to a fair process with the public’s concern for “prompt, thorough, and impartial investigations of police misconduct claims.” Further the Court stated that the Supreme Court’s discussion of “coextensive” rights should be limited to the narrow issue of whether peace officers are entitled to reports and complaints prior to an initial interrogation and should not be read to mean that peace officers are entitled to reports and complaints immediately after an initial interrogation.

The Court in Oakland POA further expounded on reports and complaints that an agency may deem confidential. The Court reasoned that nothing in 3303(g) limits the ability of an agency to de-designate a document as confidential at a later time. This crucial caveat enables an agency to deem a report confidential during an investigation so that a peace officer cannot access it, once the investigation has been completed, de-designate it so that the report may be relied on in pursuing punitive action against the peace officer. Whereas if a document were withheld due to confidentiality and remained confidential, it could not be used as a basis for seeking punitive action.

This split in authority means that depending on where your case arises, you may be entitled to or denied reports and complaints prior to subsequent interrogations.

The Fourth District Court of Appeal (Santa Ana POA), where you will be entitled to reports and complaints, is responsible for Orange, San Diego, Imperial, Riverside, Inyo, and San Bernardino Counties.

The First District Court of Appeal (Oakland POA), where you can be denied access to reports and complaints, is responsible for Alameda, Contra Costa, Fresno, Marin, Monterey, San Bernito, San Francisco, San Mateo, Santa Clara, and Santa Cruz Counties.

Court of Appeals Upholds Denial of Defendant’s Pitchess Motion Due to Comprehensive Video of the Officers’ Use of Force

             In People v. Mackreth (2020) 58 Cal. App. 5th 317, review denied (Mar. 30, 2021), defendant Tristian Mackreth was charged with resisting arrest. He filed a Pitchess motion seeking the discovery of personnel records related to the arresting officers. To succeed on a Pitchess motion, the defendant must set forth a plausible factual foundation for the discovery and explain why the records would be material to the defense.  In this case, Mackreth argued that the credibility of the officers and their prior use of force might be relevant and material to whether the officers used excessive force in his case and that the officers’ body cameras only show the officers’ perspective and not every single angle was captured on video. The City opposed the motion and asserted that there was no dispute about the force used because the entire incident was captured on video from multiple angles, including the body worn cameras of the officers, an in-car-dash-cam, and the surveillance camera system in the 7-11 store where the arrest took place. The trial court denied Mackreth’s motion, finding that the defense had not shown that the personnel records would be material because the entire incident was recorded. After his conviction, Mackreth raised the issue on appeal.

The Sixth District Court of Appeals upheld the trial court’s ruling and found that officers’ credibility and prior uses of force would not have been material since video recordings comprehensively documented Mackreth's arrest. Evidence that any of the officers had lied on prior occasions or used excessive force in the past would not assist Mackreth in presenting a defense since the undisputed video evidence demonstrated precisely the force the officers had used on the Mackreth and how the Mackreth had acted. Thus, absent a plausible explanation of how some specific conduct that had not been captured on video might have been misrepresented by one of the officers or might constitute excessive force, Mackreth could not justify the need to review the officers’ confidential personnel files.

            The appellate court’s decision protects officers’ privacy rights by denying unnecessary review of confidential personnel records where comprehensive video of an officer’s use of force makes the discovery of personnel records irrelevant.

 

 

 

 

 

 

 

PERB Holds Ventura County Liable for Bad Faith Bargaining

After a recent Public Employment Relations Board (PERB) decision, the County of Ventura was ordered to pay for tax professional services for members of the Criminal Justice Attorneys Association of Ventura County, with interest, after PERB determined that the County engaged in bad faith bargaining. The County and Association found themselves thrust into negotiations regarding the County’s Annual Leave program when the County determined that there was potential for negative tax penalties because recent Internal Revenue Service opinions indicated that the accrual of personal leave should be considered “constructively received” income whether or not it was actually cashed out. The IRS’s relatively recent decision to classify accrual of leave time as constructively received taxable income has caused a great number of accounting nightmares for both unions and municipalities alike. Upon learning about this potential for tax liability, the County sought to reopen negotiations and drastically alter the leave program. Over the course of negotiations that spanned at least three tax years, the County made a number of unilateral decisions and ultimately the County was found to have bargained in bad faith for misrepresenting their intended actions to the Association and for making an unnecessary “exploding offer” during negotiations.

The Meyers-Milias-Brown Act provides an unqualified requirement that employers and employee organizations meet and confer in good faith. (Gov. Code § 3505.) PERB uses a totality of conduct test to decide whether an employer has violated this requirement. The real question under this test is whether the employer’s conduct, when viewed as a whole, is sufficiently egregious to frustrate negotiations. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.) Under this test, PERB commonly finds that tactics such as misrepresenting facts or positions, failing to explain a bargaining position, failing to provide requested information related to a bargaining position, evading, failing to prepare for negotiations, or making time limited offers without reason are all indicative of bad faith in the bargaining process. Not every single instance of an employer using these tactics will mean they bargained in bad faith. However, PERB often determines an employer has bargained in bad faith when bad faith tactics are frequently employed. Additionally, PERB often finds that when an employer unilaterally implements changes in the working environment or conditions, they are typically bargaining in bad faith.

 

Around 2015, the IRS stated that if employees have complete freedom to cash out their accrued PTO, they must report the entire value of the PTO as taxable income in the year they accrue it regardless of whether the employee actually ever cashes it out. To remedy this issue, many employers are now implementing systems where employees must decide during the prior taxable year whether they will be cashing out their PTO or keeping it, and once they make that decision, they cannot go back on it. The County attempted to implement a similar system with the Association despite the fact they were still under an existing Memorandum of Agreement (MOA).

 

There were two main problems with the way the County handled this change in tax law. The first problem was that during the bargaining process the County representative repeatedly told the Association that although the County would be required to report the amount of leave accrued by employees as taxable income, the County would not be withholding tax on this newly classified income. However, the County did end up withholding tax on the constructively received tax income, thus causing some employees to have $0 paychecks across multiple pay periods. Even more egregious was that in withholding these massive amounts toward the end of the year, the County made several errors such as withholding the max amount an employee could accrue even if they had accrued less, or withholding the max amount despite the employee having already paid tax on cashed out PTO. The second problem was that during negotiations regarding the leave changes, another representative for the County arbitrarily made a proposal for the new MOA to the Association and told the Association they had only 3 days to accept it, which essentially made the proposal meaningless.

 

PERB found that the County had no justification to make a 3-day “exploding offer” and that the County only did it to strong-arm the Association into accepting it, a tactic that is particularly indicative of bad faith. Regarding the County’s repeated statements that the County would not be withholding tax on the constructively received income, PERB found that these statements were misrepresentations that substantially impacted the bargaining process. Had the Association been aware of the impending withholding, they could have responded very differently to proposals and possibly worked out an agreement. Further, PERB found that the County unilaterally implemented its tax withholding decision because of their antics, the fact that the County was not under any real time pressure to make the decision, and the County did not give sufficient advanced notice to the Association.

 

Due to the catastrophic results of the County’s withholding implementation, many employees retained tax professionals to file for tax refunds on their behalf. PERB found that requiring the County to cover the cost of the tax professional services was an appropriate remedy to make the employees whole given the bad faith bargaining by the County. This decision applied not only to tax professional fees that had already been incurred, but also for future tax fees that would be incurred by others that intended to file for refunds.

 

As more employers attempt to implement leave systems to account for the potential tax consequences, these withholding practices may become more prevalent. Watch out for “exploding offers” that have an arbitrary deadline as employers may use ongoing tax consequences as justification. This decision provides a good baseline of where PERB stands on employer bad faith bargaining and the consequences of unilaterally implementing sudden tax withholding decisions that have a disparate impact on employees.