Can An Officer Waive Their Own POBR Rights?

The purpose of the Public Safety Officers’ Procedural Bill of Rights Act is to promote effective law enforcement by maintaining stable employer-employee relations in California law enforcement agencies. The procedural protections provided by POBR balance the public interest in maintaining the efficiency and integrity of law enforcement with the police officer's interest in receiving fair treatment. These rights include limitations and guidelines for investigations and interrogations of public safety officers in connection with disciplinary proceedings, the right to be notified and comment on adverse comments placed in a personnel file, the right to inspect personnel files, and the right to representation. 

Though generally it would make sense that an individual would retain the ability to waive their own legal rights, in certain circumstances the law allows for an exclusion of such a waiver as it would likely result in imbalanced bargaining power between the employee and the employer. However, this is not an absolute exclusion. In Lanigan v. City of Los Angeles (1), California’s Second Appellate Court held that a police officer may voluntarily waive their POBR rights during employment as part of a disciplinary settlement agreement. 

In 2006, Officer Lanigan, a Los Angeles police officer, faced misconduct allegations when he recklessly operated his vehicle while off-duty. Lanigan was ultimately charged with three allegations of misconduct stemming from this incident. Subsequently, the Chief of Police referred Lanigan to the Board of Rights with a proposed penalty of termination. Before Lanigan had the chance to appear, his attorney negotiated a settlement agreement with the City. The Agreement reduced the proposed penalty to a 22- day suspension in exchange for a Lanigan’s waiver of various POBR rights. The Agreement also stated that should Lanigan be cited for any future misconduct he would have to immediately resign from the LAPD. Lanigan signed the Agreement in February of 2008. 

In September of 2008, Lanigan entered an emergency room intoxicated, unnecessarily identified himself as an officer, “terrified” other patients, and exhibited discourteous conduct that caused the hospital staff to call the Los Angeles County Sheriff's Department. When deputies arrived, Lanigan lied to them, claiming that the keys in his possession were not in fact his. Following an internal affairs investigation in 2009, ten new misconduct charges were sustained. Pursuant to the Settlement Agreement, the Chief of Police processed Lanigan’s resignation. 

Lanigan subsequently sued, claiming that the Agreement itself and his POBR waivers were unconscionable and legally unenforceable. Lanigan argued that a blanket waiver of his rights was against public policy. Lanigan also argued that the Agreement was unconscionable because the LAPD forced him to either sign the Agreement or risk termination. The trial court, who did not address the issues of whether the Agreement was voluntary or unconscionable, agreed with Lanigan that the Agreement itself was unenforceable and void because such rights cannot be waived. 

However, on review the Second Appellate Court disagreed with the trial court’s findings and reversed. The Court stated that though preemployment blanket waivers of POBR rights are unenforceable and void, waivers of statutory rights and other protections where the waiver is obtained as a quid pro quo for settlement of disciplinary charges, are valid and enforceable. (See County of Riverside v. Superior Court (2002) 27 Cal.4th 793, 804 [118 Cal. Rptr. 2d 167, 42 P.3d 1034] (Madrigal) [where the court held POBR was subject to a limited waiver]; see also Alhambra Police Officers Assn. v. City of Alhambra Police Dept. (2003) 113 Cal.App.4th 1413 [7 Cal. Rptr. 3d 432] (Alhambra Police Officers Assn.) [where the officer negotiated a settlement by which he received less severe discipline in exchange for admitting misconduct and waiving his right to appeal the discipline to the civil service commission.] The Court found that Lanigan’s Agreement was enforceable as it was not a preemployment blanket waiver of his rights under POBR, but rather a post-employment limited waiver in accordance with a settlement of disciplinary charges. 

The Court further determined that Lanigan’s waiver was also voluntary. For a waiver to be enforceable, it “must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences.” (Madrigal at p. 806.) The Court stated that Lanigan was aware he could enjoy continued employment with the LAPD, but only on condition that he accept resignation and loss of certain POBR rights as a consequence of misconduct. By signing the Agreement, in the presence of representation, he acknowledged that he was doing so voluntarily and with a full understanding of its consequences. 

While pre-employment blanket waivers of an individual’s POBR rights are illegal, individually negotiated waivers of POBR rights in the context of disciplinary charges are valid and enforceable.

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(1) Lanigan v. City of Los Angeles (2011) 199 Cal.App.4th 1020

A Look Inside AB 490 & Limitations on the Use of Force

On September 30, 2021, Governor Newsom signed into law AB 490 (Gipson), which “prohibit[s] a law enforcement agency from authorizing techniques or transport methods that involve a substantial risk of positional asphyxia, as defined.”(1) This law is an expansion of AB 1196 (Gibson), signed into law one year ago in response to the death of George Floyd, which prohibited a law enforcement agency from authorizing the use of the carotid restraint and choke holds. As stated by the California Public Defenders’ Association in support of AB 490, “[t]he recent news coverage of excessive force incidents by law enforcement officers involving this type of restraint including the death of George Floyd demonstrates the urgent need for this legislation.” 

AB 490, codified in Government Code section 7286.5, defines “positional asphyxia” as: 

Situating a person in a manner that compresses their airway and reduces the ability to sustain adequate breathing. This includes, without limitation, the use of any physical restraint that causes a person’s respiratory airway to be compressed or impairs the person’s breathing or respiratory capacity, including any action in which 

- pressure or body weight is unreasonably applied against a restrained person’s neck, torso, or back(2), 

or 

- positioning a restrained person without reasonable monitoring for signs of asphyxia. 

As identified by the California State Sheriffs’ Association, the language of the new law is overly broad and fails to give clear guidance to peace officers regarding permissible uses of force when attempting to effectuate an arrest or detention. In their official opposition to the bill, the Sheriff’s Association stated: "The bill's inclusion of ‘any technique in which pressure or body weight is unreasonably applied against a restrained person's neck, torso, or back' as violative of the measure is overly broad. Further, reasonableness will be difficult to judge from situation to situation.” 

An obvious problem with AB 490 is the over-broad prohibition on the use of force to the majority of the body – the torso and back. Pressure applied to any part of the torso or back does not cause asphyxia. For example, while pressure to the center (thoracic) area of the back may be problematic, pressure to a subject’s shoulder blades would not result in impaired breathing. Additional training, supported by scientific and medical evidence, is necessary to provide sufficient notice to peace officers regarding the application of certain detention techniques. 

It does appear, however, that AB 490 is limited to the use of unreasonable pressure or body weight against restrained persons. If a subject has not yet been restrained and an officer is still in the process of effecting an arrest or preventing escape, the use of force restrictions in AB 490 do not appear to apply. If a subject has been restrained, officers must avoid unreasonable pressure and reasonably monitor them for signs of impaired breathing.

“Reasonableness," the standard for law enforcement use of force, remains the standard under AB 490. It is also important to note, based on the legislative intent articulated in the Legislative Counsel Digest, only techniques and transport methods to restrained persons that involve a substantial risk of asphyxia are prohibited. Thus, techniques that carry a minimal or moderate risk of asphyxia should be permissible under AB 490. Officers will clearly require new POST-approved, evidence-based training in order know what techniques involve minimal, moderate, or substantial risks of both compression and positional asphyxia. 

The law prohibits the agency from authorizing any of these techniques but does not specifically bar the officer from using any of these techniques. As such, we are likely to begin seeing a clash between agency policy allowing an officer to use reasonable force for self-defense and the use of “authorized techniques.” Officers are permitted, when in self-defense of serious bodily injury or death and authorized techniques are not feasible, to utilize untrained and unauthorized techniques. 

The issue of positional asphyxia and compression of a subject’s airway has been dealt with, and trained on, for years by many police agencies. For example, agencies already train on the “restorative position” and monitoring detained subjects to address any airway issues. Most significantly, there is no legitimate use of force training or technique that would justify what was done to George Floyd during his arrest. 

Some agencies have started to change their use of force training to reflect this new law or what they believe the new law is trying to prohibit. One of the first agencies to change their arrest and control techniques was the New York City Police Department. New York City passed a similar arrest and control law like AB 490. Unfortunately, the successes and failures of these “new” techniques is still unknown. 

It is inevitable that the California Legislature will pass more laws impacting officers and their ability to use force to effect arrest and prevent escape. For AB 490 to be successful, officers will require new training regarding appropriate techniques of arrest control that will avoid causing a substantial risk of asphyxia. Will these laws create better policing? Or more second guessing and distrust? The challenge is balancing these new laws against public safety and the safety of officers who put their lives on the line every day to keep us safe.

(1) Legislative Counsel Digest; emphasis added.

(2) AB 490’s definition of positional asphyxia also includes “compression asphyxia."

Union Representative Rights in Employer Investigation Interviews

Courts and Agencies have clearly established that during disciplinary investigations, union representatives are entitled to assist members in presenting their defense. In a recent Federal Labor Relations Authority (FLRA) case, the board evaluated the role of a union representative in an employer investigation interview (1). In the case, a federal corrections employee was randomly selected for drug testing and tested positive for marijuana. During the investigatory interview the employee’s union representative asked about the procedure used during the drug test. The employer’s investigator told the union representative not to ask any more questions and fearing personal discipline the union representative remained silent. 

The FLRA found that union representatives are entitled to take an active role in assisting unit employees in presenting facts for their defense. An investigator may only limit a union representatives’ participation in an investigation if the representative is abusive or excessively interruptive. The FLRA made it clear that a union representative cannot be relegated “to the role of a mere witness.” A union representative has the right to play an active role in an investigation and elicit information that can be used to benefit the employee. Employers are not entitled to question an employee without any interruptions and should expect comments, questions, and statements from the union representative about possible infringements on employee rights. 

Cases like the one cited above present persuasive authority for the Public Employment Relations Board (PERB). This case provides insight into a union representative’s rights and the Meyers-Milias-Brown Act (MMBA) in general. Recently agencies have been giving admonishments that representatives have to wait until the end of the interview to ask questions through the investigator, these admonishments are almost certainly illegal under cases like the one cited above.

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(1) U.S. Dept. of Justice Federal Bureau of Prisons Federal Correctional Institution Englewood Littleton v. American Federation of Government Employees Local 709, 2017 WL 1862381 (FLRA, 2017).

Calculating Overtime Wages for Dual Rate Employees in California

The Fourth District of the Court of Appeal recently gave an opinion in the case of Levanoff v. Dragas, 65 Cal. App.5th.1079 (June 25, 2021). This case provided important clarification for both employers and employees as to whether California Law requires a specific method for calculating overtime wages for dual rate employees. 

The case involved a number of employees who worked for Buffalo Wings Restaurants throughout California. The employees claimed that their employer had violated the California Labor Code and the California Unfair Competition Law, among other provisions. The employees claimed that the employer had failed to pay overtime wages, provide meal periods, rest periods, pay wages upon ending employment, and keep accurate payroll records.

But upon appeal the key issue of the case revolved around the overtime pay and the calculations used for dual rate employees. Dual rate employees work at different rates of pay within a single pay period. For example, an employee who wears various hats for the employer receives a different salary amount for each. Sometimes this can be more complicated with employees switching roles during shifts or on different days. 

For these types of employees, the question becomes: if they work overtime, which rate/salary is paid for that overtime? Employers typically have used two different methods for determining this. First, they use the rate-in-effect method. This is the simpler of the two methods, and means the employee is paid overtime at the rate which was in effect when the overtime began. So if the employee was working at $20 an hour when his shift ended and overtime began, and then worked overtime he would continue to receive $20 an hour for that overtime. The second way of calculating overtime pay for dual rate employees is called weighted average method. Under this method, the employer adds all the hours worked in one pay period and divides that number into the employee’s total compensation for the pay period. 

The employers here used the rate-in-effect method. But the employees claimed that California Law required their employer to use the weighted average method. While the court dealt with other issues relating to the classification of the employees, the main take-away was the court's comments on whether or not California Law require the rate-in-effect method.

Before this case was heard by the Court of Appeal, The Superior Court sided with the employers. The court simply concluded that “the method employers must always use is an issue we need not decide.” Under California Law, neither method is required to be used by employers. Instead, California simply requires employers to use a method of compensation that is most economically beneficial to the group of employees at issue. This is to be done by looking not only at individuals over certain periods of time, but by looking at the impact of the practice on the entire group of employees at issue during the relevant statutory period. In this case, the court looked at the employer’s intent, which it noted was to follow industry standards and to seek to compensate hard working employees. 

This case provides an important clarification for both workers and employers. It makes clear that employers do have latitude as to which method they wish to use in compensating dual rate employees for overtime. But it also upholds a long-held requirement in California that the court will look to the intent of the employers, to ensure continued protection for workers.

Governor Newsom Signs Several Bills Affecting California Law Enforcement

On September 30, 2021 Governor Newsom signed into law Senate Bill 2, Assembly Bill 89, Assembly Bill 490, and Assembly Bill 26. Each of these laws impact the California law enforcement community. 

Senate Bill 2 establishes a nine-member Advisory Board that will review “serious misconduct” by peace officers and make recommendations to the Commission on Peace Officer Standards and Training (POST). SB 2 creates an advisory board that makes recommendations to the POST Commission, who makes the ultimate determination based on a 2/3 vote that serious misconduct was established by clear and convincing evidence. While several thoughtful amendments were made to significantly improve the bill’s approach to establishing an officer licensing program for California, a handful of flaws remain. The Bill establishes an Advisory Board whose composition will likely subject peace officers to a biased review of their actions. The Bill contains unclear, subjective and vague definitions of ‘serious misconduct’ that would warrant the suspension or revocation of a peace officer’s license. The Bill does not address the Peace Officer’s Bill of Rights – the rulebook by which administrative investigations of peace officers must be conducted in California. The POST Commission will be vested with authority to promulgate regulations clarifying the scope of this bill, including the right to representation during POST investigations. The Legislature will also likely pass clean up legislation next session to clarify ambiguities and correct drafting errors.

For more in-depth analysis of Senate Bill 2 see https://mastagnilaw.blogspot.com/2021/09/the-passage-of-senate-bill-2-and-fight.html. 

Assembly Bill 89 raises the minimum age for peace officers from 18 to 21. AB 89 would also require the Chancellor of California Community Colleges to develop a modern policing 

degree program with POST and other stakeholders. The Chancellor and stakeholders will submit a report of their recommendations to the Legislature including a plan on how to implement the degree program. POST is required to adopt the recommended criteria within two years of the report to the legislature. 

Assembly Bill 490 was introduced in response to George Floyd’s death. Assembly member Gipson intended for the legislation to close loopholes in use of force policies by creating a uniform state policy on positional asphyxia restraints. Assembly Bill 490 prohibits a law enforcement agency from authorizing techniques or transport methods that present a substantial risk of positional asphyxia. This means agencies can not approve “any technique in which pressure or body weight is unreasonably applied to a restrained person’s neck, torso, or back.” Under the bill, any weight applied to a suspect must be reasonable and the suspect must be monitored for signs of asphyxia. 

Assembly Bill 26 requires a peace officer to immediately report to their agency any potential excessive use of force. Agencies must also prohibit retaliation against officers that report another officer’s violations of law or policy. Finally, the act allows an officer who fails to intercede during an excessive use of force to be disciplined up to and including the same discipline as the officer who used excessive force. 

Governor Newsom signing these bills means that POST and local agencies will be updating their policies, training, and practices to comply with these new laws. Mastagni Holstedt urges everyone in the law enforcement community to familiarize themselves with these new bills, and to contact our office for assistance with in-depth training and insight regarding the legislative history and application of these new laws. We will continue to monitor and provide updates regarding the impact that these bills have on peace officer associations and their members throughout California.