The House of Representatives Passes H.R. 82 – Social Security Fairness Act of 2023

    On November 12, 2024, the United States House of Representatives passed H.R. 82, the “Social Security Fairness Act of 2023” by overwhelming bipartisan margins. This bill has been top priority for public safety labor nationwide, including the IAFF and PORAC, because it eliminates the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO), provisions that unfairly punish retired police officers, fire fighters, and other public employees. Although this Bill was was co-sponsored by 303 of 435 members of the House of Representatives, it had stalled in the powerful House Ways and Means Committee for nearly two years.

    "This discharge petition marks a critical victory in our long fight for fair retirement benefits for peace officers and public servants,” said Brian R. Marvel, President of PORAC. 

    This bill was introduced in January of 2023 with the purpose of repealing provisions from the Social Security Act (42 U.S.C. 401, et seq.)  that reduce Social Security benefits for individuals who receive other government benefits, such as state or local pensions. Specifically, this bill eliminates the government pension offset which reduces Social Security for spouses, widows, and widowers who also receive their own government pensions. 

    Additionally, the bill eliminates the windfall elimination provision which could have reduces Social Security benefits for individuals who also receive a pension or disability benefit from an employer that does not withhold Social Security taxes from the individuals’ paychecks. The Bill strikes 42 U.S.C. 402(k)(5) which outlined how an individual’s Social Security benefits would be reduced if they received additional periodic benefits from federal, state, local, or any other government service within the last five years. 

As such, the provisions outlining spousal benefits are only contingent on the restrictions put forth in Section 202(q) and no longer are limited by Section 202(k)(5) should the spouse (and widow/widower) receive benefits of their own. Subsection (q) reduces a spouse’s insurance benefits should the employed individual begin receiving retirement benefits before reaching the statutory retirement age. Elsewise, Section 202 subsections (b)(2) and (c)(2) dictate that spousal benefits for each month are to be one-half the primary insurance amount of the primary insurance amount of his or her spouse (or, in the case of a divorcee, former spouse.) Under subsections (e)(2)(A) and (f)(2)(A), a widow’s or widower’s benefits for each month are to be equal to the primary insurance amount of his or her spouse. 

The bill also struck provisions altering the computation of benefits under the Social Security Act. Section 415 subsections (a)(7), (d)(3), and (f)(9) were all struck which covered delayed retirement, continued work after retirement, and the windfall elimination provision. Subsections (a)(7) and (f)(9) increased benefits for an individual who delayed claiming benefits beyond their full retirement age, thus incentivizing individuals to remain actively working, capping at age 70. Subsections (a)(7) and (d)(3) comprise the Social Security Windfall Elimination Provisions which reduce an individual’s Social Security benefits to reflect the person’s entitled to other benefits (such as old-age insurance or retirement benefits).  

    This bill repeals the Windfall Elimination provision and Government Pension Offset for individuals as well as their spouses or widow(er)s who receive benefits of their own from the government. These eliminated provisions have unfairly reduced retirement benefits for peace officers, firefighters, and their families as well as other public employees merely because they and their spouses can also claim alternative benefits. Additionally, by incentivizing increased service beyond the retirement age and penalizing early retirement, individuals are compelled to make decisions to keep working when doing so may not benefit them or their families. 

    By eliminating these provisions, firefighters or officers who are forced to retire early due to the demanding aspects of their careers can finally receive the full financial security in retirement benefits that they spent their entire career paying into. With the passing of this bill, the House of Representatives has made a critical step in ensuring financial stability for public employees in their post-retirement years. 

Now that H.R. 82 has passed the House, the bill moves to the Senate. The Senate version of this Bill has 62 co-sponsors, so the filibuster should not prevent enactment of this important Bill. 

IAFF General President Edward Kelly aptly stated, “[w]hile we’re proud of the work our team did to get this bill through the House, this is only half the battle. Now it’s time for Senators to step up and send this bill to the President’s desk.”

California Appellate Court of Appeal Upholds City Manager’s Decision to Terminate Officer and Reject Advisory Arbitration Award

    

    On September 13, 2024, the Fourth District Court of Appeal of California ruled in Ramirez v. City of Indio, finding that the Memorandum of Understanding ("MOU") between the City of Indio and the Indio Police Officers' Association ("POA") did not constrain the City Manager's authority to revoke an arbitrator's advisory findings and recommendation supporting an officer's reinstatement. 

    Former police officer Sergio Ramirez filed for writ of mandate challenging the determination by the Indio City Manager, upholding the decision to terminate Ramirez's employment, contrary to the arbitrator's recommendation. 

    Ramirez had been employed by the City of Indio Police Department since 2005. In August of 2016, he was charged with rape and two additional counts of sexual assault. Subsequently, the City placed him on administrative leave, asked him to turn in his work cell phone, and initiated an internal affairs investigation. Ramirez was acquitted of all criminal charges. However, in 2019, Ramirez was terminated by the Chief of Police. 

    Ramirez administratively appealed the decision under the "Appeals Procedure" outlined in the MOU between the City and the POA by requesting an evidentiary appeal to arbitration. The mutually agreed upon arbitrator conducted a three-day evidentiary hearing after which it was recommended that Ramirez was reinstated with full back pay and benefits. 

    In reviewing the arbitrator's findings and recommendations, the MOU, the Chief's Notice of Intent to Terminate, the City policies, the internal affairs investigation, transcripts from the criminal trial, and associated transcripts, motions, responses, briefs, and exhibits, the City Manager issued a final written decision rejecting the arbitrator's findings and affirming Ramirez's termination. Ramirez petitioned the Superior Court for a writ of mandate challenging the City Manager's administrative decision. On May 30, 2022, the Superior Court denied the writ petition. Ramirez then appealed to the Fourth District Court of Appeals, contending that the Superior Court incorrectly interpreted the arbitrator's role in the administrative appeal procedure and the City Manager's refusal to defer to the arbitrator's recommendation violated his due process rights. 

    Under the Public Safety Officers Procedural Bill of Rights (POBRA; Gov. Code § 3300 et seq.), police officers have a statutory right to an administrative appeal of punitive action that shall be conducted in conformance with the rules and procedures adopted by the local public agency. (Gov. Code § 3304.5) Such rules and procedures were outlined in the MOU which guided the court's interpretation of Ramirez's appeal. The rules and procedures must afford constitutional due process for an officer before depriving him or her of any significant property interest in employment. The court views the MOU as a whole, rather than disjointed sections in order to effectuate the mutual intent of the parties as it existed at the time of contracting. 

    The MOU Appeals Procedure in this case was "designed to provide an appeal system for the fair and just resolution of any dispute..." Specifically, the MOU did not grant binding arbitration to the parties in the case that an appeal hearing was held. Rather, the arbitrator was permitted to render a written statement of advisory findings and recommendations. Therefrom, the City Manager was required to review the arbitrator's findings and recommendations but had authority as the final decision maker to affirm, revoke, or modify the findings as appearing warranted. 

    In his appeal, Ramirez acknowledged the City Manager's final decision-making authority. However, he argued that the MOU must be interpreted to constrain the City Manager's discretion by requiring him to defer to the arbitrator's determinations of the relevancy, weight, and credibility of testimony and evidence presented during the hearing or at least afford them great weight. The Court found that this suggested interpretation ignores the rules of contractual interpretation by disregarding the MOU's express language and framework. Nothing in the MOU indicated intent by the parties to extend the arbitrator's authority beyond the hearing itself or require deference by the City Manager. Suggesting such would circumvent POBRA by requiring that an administrative appeal not be held in conformance with the rules and procedures adopted by the public agency. Ramirez's interpretation would effectuate binding arbitration on an MOU that explicitly designated advisory arbitration. 

    Lastly, the Court found that the Appeals Procedure in the MOU more than satisfied due process requirements as Ramirez was given the opportunity to respond to the Notice of Termination in writing. Additionally, the City maintained the burden of proof at the appeal hearing while Ramirez was permitted to present evidence and cross-examine witnesses. 

    The Court ultimately affirmed the Superior Court's denial of the writ based upon interpretation of the MOU as it complies with POBRA. 

    It is important to understand that the local rules and procedures, so long as they adequately retain an officer's constitutional due process rights, govern administrative appeals. If an MOU does not order binding arbitration or grants authority to a city official rather than an arbitrator, the results of an appeal hearing through arbitration may not be binding and a city may still choose to uphold an administrative decision. 

District Court Rules Vista Fire Department Battalion Chiefs Exempt from Overtime

On September 30, 2023, the district court in the Southern District of California granted summary judgment in favor of City of Vista Fire Department and against three Battalion Chiefs for the filed a collective action pursuant to the Fair Labor Standards Act (“FLSA”) alleging the City misclassified them as exempt employees and failed to pay them overtime. The City moved for summary judgment claiming the Plaintiffs qualified as exempt employees under the executive, administrative, and highly compensated employee exemptions of the FLSA. Plaintiffs opposed the motion, arguing the Department of Labor’s “first responder regulation” under 29 C.F.R. § 541.3(b) established a bright-line rule excluding all firefighters from FLSA exemptions.

The court held that the first responder regulation did not categorically exclude all levels of firefighters from exemption. Rather, FLSA exemptions turn on the nature of an employee’s actual primary duties, and as such, the inquiry is highly fact-specific. Here, Plaintiffs spent the majority of their on-duty time performing non-manual office work, including management tasks and “special projects” related to the administration of the Department. Critically, Plaintiffs spent an average of only 1.79% of their total shift time on emergency response. Based on these facts, the court held the Battalion Chiefs were not covered by first responder regulation. The court further held that these Plaintiffs met the three requirements to be exempt under the FLSA highly compensated employee exemption. Therefore, the court granted summary judgment for the City and dismissed the case.

FACTS

The Vista Fire Department Battalion Chiefs’ Duties were Primarily Managerial

A thorough understanding of Plaintiffs’ regular duties is essential to the exemption analysis as it depends on individualized circumstances. As Battalion Chiefs, Plaintiffs ranked third in the Department’s chain of command, under the Fire Chief and two Deputy Fire Chiefs. During the discovery phase of this case, Plaintiffs affirmatively admitted that they spent the majority of their on-duty time performing office or non-manual work including management tasks and administrative “special projects.” In contrast, they spent very minimal time performing emergency response duties.

Management Duties – Plaintiffs oversaw the operations of six fire stations, supervising six Captains (one at each station) and 12 to 24 Firefighter Engineers and Paramedics, including:

• Ensuring adequate staffing to respond to emergencies;
• Checking that no employee worked unauthorized overtime;
• Ensuring Captains were following Department polices and standards;
• Monitoring and evaluating Captains’ performance and issuing disciplinary actions;
• Coaching, counseling, and/or reprimanding lower ranked firefighters;
• Completing annual performance evaluations for Captains, which impacted pay;
• Reviewing Captains’ performance evaluations of lower-ranking members;
• Conducting trainings on effective emergency response and fire suppression operations.

Special Project Duties – each Battalion Chief was assigned non-manual office work necessary for Department operations in one of three areas.

• Records management – ensuring proper recordkeeping of fire incidents; generating summaries for the Fire Chief; learning and training staff on new software.
• Purchasing equipment and supplies – maintaining inventory; purchasing replacements as needed; ensuring all firefighters were adequately outfitted with PPE; tracking access.
• Maintaining fire engines and firefighting equipment - coordinating maintenance and repairs for all fire engines, scheduling testing and repairs for equipment; obtaining necessary certifications required for the firefighters to use their equipment.

Emergency Calls and Fire Suppression Duties – Plaintiffs spent an average of only 1.79% of their total shift time spent on emergency response, and their emergency duties differed significantly from those of the frontline firefighters they supervised:

• They were dispatched to less than 4% of emergency calls;
• They had discretion to add or remove themselves to and from an emergency call;
• When they did arrive on scene, Battalion Chiefs usually did not perform frontline firefighting work. Instead, about 75% of the time they acted as Incident Commander, a managerial role monitoring equipment, surveilling communications, and directing resources and medical personnel where they were needed;
• They were periodically deployed to help other fire stations at larger fires in neighboring areas or to the Strike Team to help in areas further away.

ANALYSIS

The First Responder Regulation Does Not Categorically Bar Firefighters from Exemption

The court first analyzed Plaintiffs’ contention that the first responder regulation at 29 C.F.R. § 541.3(b) creates a bright-line rule that all firefighters are barred from exempt status regardless of the primary duties of their employment. The regulation explains that FLSA exemptions do not apply to firefighters who perform work such as “preventing, controlling or extinguishing fires of any type” because “their primary duty is not management of the enterprise.”

The court found that the first responder regulation does not override the “primary duty test” that is used to determine exempt status. The court explained the plain reading of the regulation clarifies firefighters are nonexempt “if and because their primary duty is direct physical engagement with fires.” The regulation does not state that any worker within the firefighting field is automatically nonexempt. In fact, the preamble of the regulation explicitly states that certain “high-level police and fire officials” could be exempt if their primary duty consisted of “performing managerial tasks.” Therefore, the Battalion Chiefs could not rely on the first responder regulation to claim nonexempt status, and further examination into their primary duties was necessary to evaluate their claims.

The Vista Fire Battalion Chiefs Were Exempt Highly-Compensated Employees

Finding exemption was not barred by the first responder regulation, the court next analyzed whether the Battalion Chiefs qualified for the FLSA highly compensated employee exemption. 29 C.F.R § 541.601. The court found Plaintiffs satisfied each of the three elements as follows:

1) Annual compensation of at least $107,432 annually (at the time of the suit).

2) Customarily and regularly performed any one or more of the exempt duties or responsibilities of an executive, administrative, or professional employee.  Here, Plaintiffs performed executive duties because their “primary duty [was] management of the enterprise,” they regularly directed the work of two or more employees, and their recommendations regarding hiring, firing, and changes in employment status carried weight. See 29 C.F.R. § 541.100(a)(2)-(4). The fact that Plaintiffs were not involved in some personnel duties (i.e., promotions, investigations; labor negotiations; managing budgets, hiring, firing, setting pay levels) did not overcome this relaxed duties test.  

3) Primary duties included performing office or non-manual work. Here, Plaintiffs admitted the majority of their on-duty time was spent on the managerial tasks and non-manual special projects, and only a de minimis amount of on-duty time was spent responding to emergency calls. The Battalion Chiefs’ “principal value” to the employer was in overseeing the operations and personnel of the six fire stations, not on-the-ground firefighting, and they were largely free from direct supervision.

The court frequently referenced two cases that provided guidance in its analysis. In Morrison v. Cnty. of Fairfax, VA, 826 F.3d 758 (4th Cir. 2016), the court found the fire captains were nonexempt because their primary duty was first response. On the other hand, Emmons v. City of Chesapeake, 982 F.3d 245 (4th Cir. 2020),held the battalion chiefs were exempt because they were the brain of the firefighting operation, and their primary duty was management, not frontline firefighting.

CONCLUSION

The court summarized its findings that the Vista Fire Department Battalion Chiefs were “high-level fire officials whose principal mission was to manage fire station operations and personnel to ensure their operational readiness to respond to emergencies.” These managerial primary duties removed Plaintiffs from the first responder regulation. Based on the specific facts of this case, these Battalion Chiefs qualified for the highly compensated employee exemption under the FLSA. Accordingly, Plaintiffs were not entitled to overtime pay and the court dismissed the lawsuit.

Settlement: The "Stipulation with Request for Award"

    

  This blogger greets you again, but with the topic on the most common way to settle your workers’ compensation injury, the “Stipulation with Request for Award”. But what is a “Stipulation with Request for Award” and how does it work?

    A “Stipulation with Request for Award” generally gives you a lifetime medical award (yes, until you die, even if you switch employers, retire, get fired or move out of state). However, medical care is generally limited to treatment in the insurance company’s medical provider network (MPN) subject to denials of care. Your monetary award will be limited to the value of your percentage of permanent disability (PD) which originates from the impairment assigned from the QME or AME which can be further reduced based on apportionment (how much of your disability is from work or is pre-existing or is from non-industrial factors).

    A “Stipulation with Request for Award” generally pays you the value of your percentage of permanent disability in payments of $290.00 per week (for maximum wage earners) until the sum is paid in full. Note, the payments may have started on the “permanent and stationary” date if you were not working at the time of being found “permanent and stationary” by a doctor. If you were working, you would not have received payments beginning on the permanent and stationary date, thus, retro pay may be paid to make you current and to catch up on payments that would have been paid (but were not because you were working). However, there are exceptions to this general rule on when PD payments start.

    Accrued benefits owed to you are generally paid to your attorney first (if you are represented). Sometimes the accrued PD is not enough to pay the attorney fee and in that case the insurance company will borrow money off the back end of your payments to pay your attorney. Borrowing money off the back end of your payments generally involves a 3% interest rate which is much cheaper than interest rates today. Payments to you should continue until the remainder is paid. Then, no further PD money is owed to you. However, there are exceptions to this general rule and in some cases, additional PD payments can occur.

    Why is permanent disability paid in payments? Well, permanent disability is first translated into a number of weeks of payments under Labor Codes §§ 4453 and 4658. Then, the amount paid per week is determined on your average weekly wage multiplied by two-thirds with a minimum permanent disability payment per week of $160.00 and a maximum permanent disability payment per week of $290.00. Put another way, a 12% permanent disability rating that is worth 38.25 weeks of payments, is worth $6,120.00 to a minimum wage earner and $11,092.5 to a maximum wage earner. Through this example, you can see that the same injury to a minimum wage earner is worth less compared to a maximum wage earner. This concept applies to wage loss supplemental pay as well, which we call temporary disability and highlights how the workers’ compensation system regarding indemnity discriminates based on earnings.

    In a “Stipulation with Request for Award,” you can reopen your claim within 5-years of your original date of injury if your injury worsens, thereby seeking an increase in the percentage of permanent disability. Also, within 5-years of your original date of injury, you can seek compensation for a compensable consequence (a consequential injury that would have never occurred but for the original injury). Within 5-years from your original date of injury, you can also use unspent temporary disability pay if a work comp doctor pulls you off work or gives you work restrictions your employer cannot accommodate (but that is rare if a doctor has already deemed you to be “Permanent and Stationary”).

    In conclusion, I hope this information helps you better understand how the most common settlement type (the “Stipulation with Request for Award”) works. However, please beware, much more can be settled, waived, dismissed or released in a “Stipulation with Request for Award” so you must read and fully understand everything that is agreed upon. That is why having a skilled, trained and knowledgeable attorney is important. Having a good attorney can help you secure a good QME or AME to start with and can help you secure proper compensation and medical care. 

    Mastagni Holstedt attorneys have built a track record of success at trial and on appeal in state and federal courts across California. Founded on attorney-client privilege, we have been assisting police officers, firefighters and other safety workers for decades in matters ranging from internal discipline and criminal defense to wage and hour, disability and workers’ compensation claims. If agreed upon, our office can file your claim for you, direct you to treatment, give you the best advice and see you through your injury until the end. This blog is for educational purposes only. This is not legal advice. There is no substitute for competent legal advice tailored to your specific circumstance. 

By Jonathan Drake Char, Esq. 

US Supreme Court Delivers Big Win For Police Officer in Title VII Challenge to Involuntary Transfer

 On April 17, 2023, the United State Supreme Court ruled in Muldrow v. City of St. Louis (2024) 601 U.S. 346 that to prevail in a Title VII suit, an employee must show some harm from a forced transfer, but the harm does not need to satisfy any particular level of significance. The Court held that changes to working conditions such as responsibilities, duties, schedules, and work perks were sufficient to establish an employment disadvantage. 

A St. Louis Police Department Sergeant, Jatonya Clayborn Muldrow, brought suit alleging that the Police Department violated Title VII by transferring her to another position due to her gender. Between 2008 and 2017, Muldrow worked as a plainclothes officer in the Department’s specialized Intelligence Division. In 2017, the new Division commander initiated a transfer of Muldrow out of the unit against her wished, so that she could be replaced with a male officer. The outgoing commander communicated with the new commander that Muldrow was an exemplary sergeant. The new commander testified that he deemed Muldrow’s male replacement to be a “better fit for the Division’s very dangerous work.” Additionally, the new commander repeatedly referred to Muldrow as “Mrs.” rather than “Sergeant.” 

Muldrow’s rank and pay remained the same, but her perks, responsibilities, and schedule changed. After the transfer, Muldrow no longer worked with high-ranking officials on specialized Intelligence Division priorities and instead supervised the day-to-day activities of patrol officers. Muldrow also had her FBI status and access to an unmarked take-home vehicle revoked and her schedule became less regular and included weekend shifts. 

The District Court granted the City summary judgment which was affirmed by the Eighth Circuit because Muldrow failed to show that the transfer caused her a “materially significant disadvantage.” (30 F.4th 680, 688.) Because the transfer had caused “only minor changes in working conditions” and not “a diminution to her title, salary, or benefits,” Muldrow’s suit could not proceed. 

The Supreme Court overruled the Eighth Circuit, holding that the harm required for a challenged transfer under Title VII need not be significant. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such an individual’s sex.” (42 USC § 2000e-2(a)(1).) The statutory language therefore merely required that Muldrow prove some disadvantageous change to an identifiable employment term or condition as a result of the transfer. The statute does not require that the harm be economic or tangible. 

The transferee does not have to show that the harm was significant or exceeded some heightened bar as “discriminate against” means simply to be treated worse on some basis. Nowhere in the statute is there a demand for significant harm, as was required by the Eighth Circuit. 

The City presented three arguments to justify a heightened significance standard: statutory text, precedent, and policy. The Court held that none of these arguments justified the use of such a bar. The Court rejects the statutory text argument because any harm resulting from a discriminatory employment action is united on that basis, making all effects equal regardless of significance. Additionally, past Supreme Court decisions have only imbued a significant harm standard on retaliatory employer actions serious enough to dissuade an employee from pursuing a discrimination charge. Lastly, the Court found it unpersuasive that employees would flood the courts with litigation without a significant harm standard because courts have multiple ways to dispose of meritless claims. Regardless, the Supreme Court refused to add words to the statutory language to "achieve what the City would deem a desirable result.”

This decision provides police officers additional legal basis to challenge an involuntary transfer, even without a direct loss in pay.  The Peace Officers' Procedural Bill of Rights and the Firefighters Bill of Rights guarantee California public safety employees the due process right to appeal any transfer for the purpose of discipline or resulting in the loss of pay.  However, these statutes provide limited protections for non-disciplinary transfers from desirable or career enhancing assignments that are not associated with special assignment pay. 

        As a result of this decision, an employee who is forcefully transferred to a new role because of sex, gender, race, or some other protected basis may challenge the transfer under Title VII even if there is not a direct loss in pay, so long as there was some harm to his or her employment conditions. The employee need not prove that the transfer caused a significant, serious, or substantial adverse effect, only that there was an adverse effect at all.This decision has since been cited by the Ninth Circuit and the Second District Court of Appeal of California.

PORAC Podcast episode drop🎙️ Measure N: Stockton POA Seeks Binding Arbitration

Peace Officers Research Association of California (PORAC) just published its podcast of David E. Mastagni and Stockton Police Officers' Association Vice President Chris Sherman discussing Measure N, a ballot imitative in Stockton to establish interest arbitration as the impasse resolution process in contract negations for Stockton Police and Firefighters.  The initiative was drafted by Mastagni and the POA Board to establish a process that will eliminate prolonged periods where the POA and Fire union are out of contract by empowering an arbitration panel with a representative from the city and the union and jointly agreed upon neutral to promptly establish the terms of a labor agreement based upon the compensation of similar officers and firefighter in their market. The initiative will not cause any taxes to be increased.  

Historically, Stockton's lack of a meaningful impasse resolution process has resulting public safety employees working months or longer without a labor contract.  This in turn cause Stockton's compensation to fall below the market average for months, and has prompted officers and firefighter to leave for higher paying jobs in more stable jurisdictions.  As a result, the Police Department has experienced chronic understaffing and difficulties attracting quality cadets to send to the academy.  Many newly hired officers leave for better opportunities within their first couple of years, converting Stockton into a training ground for surrounding agencies. The understaffing prevents the city from providing the level of safety the citizens of Stockton deserve.

If enacted, this initiative will quell these staffing shortages and restore labor stability to Stockton. Proper staffing is necessary to improve public safety, which is the primary goal of the men and women protecting Stockton.   

In this episode, President Brian Marvel and VP Benjamin T. speak with Stockton POA VP Chris Sherman and David Mastagni with Mastagni Holstedt, A Professional Corporation about Measure N, which would give binding arbitration in their City Charter and could have statewide implications if passed. They explain the measure, what it intends to do, and why it is beneficial.

Listen on your favorite podcast platform or watch on YouTube: https://lnkd.in/gQW32fcP

JUST IN: Newsom Vetoes 4850 Time for Park Rangers

 

            On September 25, 2024, Governor Newsom vetoed Senate Bill 1058, which would have extended 4850 benefits to about 200 park rangers currently employed by cities, counties, and subdivisions of the state. Introduced by Sen. Angelique Ashby, D-Sacramento, the bill would have allowed county and special district park rangers who experience a work-related injury or illness to receive full-pay salary continuation benefits in lieu of temporary disability.

Current law (under Labor Code section 4850) allows law enforcement, firefighters, and probation officers to receive their full pay when temporarily disabled due to a work injury. Ashby and bill supporters claim the new measure would provide rangers with the same benefit enjoyed by other law enforcement officers who perform similar duties and face similar risks. The bill seeks to address these blatant gaps in workers’ compensation and disability protections.

In her bill analysis presented to the Senate Committee on Labor, Ashby noted that park rangers who obtain peace officer’s standards training, among other duties, provide public safety services at California’s parks and other public properties. They are often the first responders for medical, fire, and other emergencies, and part of their duties also entail addressing unlawful homeless encampments, which places the officers at risk of harm.

Ashby highlighted that in Sacramento County alone, park rangers issued 226 parking citations, 138 infractions, made 83 felony arrests and made 62 misdemeanor arrests just in February of 2024. Moreover, some counties rely on deputy sheriffs or police officers to fill their park ranger positions, further emphasizing both the overlap in responsibilities and disparity in protections. The Sacramento County Criminal Justice Employees’ Union, the sponsor of the bill, wrote in support: “Extending these protections to all peace officers employed on a regular, full-time basis…ensures parity across the state and protects many of these frontline workers.”

      In his refusal, however, Newsom, although recognizing the well-intended measure and the important public service rangers provide, noted that the bill “would significantly expand 4850 benefits that can be negotiated locally through the collective bargaining process.” He emphasized that many local governments face financial stress, and the addition of this costly benefit should be left to local governments given the fiscal impact.

           Despite the bill passing unanimously in the Senate and Assembly, bill opponents echo Newsom’s concerns, asserting that: (1) no objective evidence exists to support expanding salary continuation benefits and (2) the cost to local governments remains uncertain given the lack of a fiscal impact evaluation. Although no fiscal impact evaluation exists specifically for this bill (and the bill bypassed the appropriations committee in either chamber of the Legislature), cost projections for other similar bills may lend some insight into the potential costs of SB 1058.

In 2021, the Assembly Appropriations Committee projected that extending 4850 time to firefighters employed by the Department of Forestry and Fire Prevention (AB 872) would cost around $1 million a year. The Senate Appropriations Committee, however, estimated an increase in the “hundreds of thousands of dollars annually” and an "increase in overtime costs that would likely be in the millions of dollars annually.” Newsom similarly vetoed AB 872, again despite its unanimous pass by both Legislature chambers. Newsom again emphasized that such negotiations were best addressed through collective bargaining “where consideration of how best to allocate limited resources for this crucial state function is viewed holistically.”

Newsom’s veto mirrors that of previous Governor Jerry Brown, who vetoed AB 1451 (proposed adding lifeguards in Oceanside to Labor Code section 4850) in 2015. Brown relatedly asserted that public employers’ costs had increased at an alarming rate and that cities, through the collective bargaining process, could consider providing salary continuation benefits to lifeguards.

Many law enforcement associations continue to back the bill, including the Park Rangers Association of California, the Peace Officers Research Association of California (PORAC), and the Sacramento County Deputy Sheriffs’ Association, to name a few.

           The bill is currently sitting in the Senate, with consideration of the Governor’s veto pending. The Legislature can override the Governor’s veto by a two-thirds vote in both the Assembly and Senate. Hopefully, lawmakers will override Newsom’s veto given that the initial vote was more than enough to do so. It has also now been more than a decade since lawmakers have successfully expanded the list of workers eligible to receive salary continuation benefits under Labor Code 4850. Hopefully, that fact, coupled with the importance of providing parity in disability protections afforded to California’s peace officers, will motivate lawmakers to remain committed to expanding these rightfully afforded protections to park rangers.

Newsom’s veto letter can be read here.

Ninth Circuit Partly Upholds Injunction Against SB 2's Ban on CCW Carry in Most Locations

    On September 6, 2024, the Ninth Circuit Court of Appeals partly upheld a preliminary injunction blocking the enforcement of Senate Bill 2 (SB 2) with regards to its location specific bans on concealed carry in so-called "sensitive places" even for  permit holders. Wolford v. Lopez, No. 23-16164, 2024 WL 4097462 (9th Cir. Sept. 6, 2024).  

    In defiance of the Supreme Court's Bruen ruling, California enacted SB 2 which eliminated the good cause requirement to obtain a CCW permit, but also defined most of the state as a “sensitive place” where even permit holders could not carry. PORAC President Brain Marvel provided a declaration in support of the injunctive that was issued in May v. Bonta, and appealed by the State. The May appeal was consolidated with appeals from two other states also adjudicated in Wolford v. Lopez. 

    Peace Officers Research Association of California (PORAC), the California Association of Highway Patrolmen (CAHP), the California State Sheriffs’ Association (CSSA), and the Crime Prevention Research Center (CPPC) filed an amicus curiae brief in the Ninth Circuit Court of Appeals supporting the trial court's injunction. Click this link to read the amicus curiae brief filed by David E. Mastagni and Timothy K. Talbot.  

    In ruling on California's Bruen response Bills the decision was as follows:

Locations where concealed carry by permit holders is allowed:

• Hospitals and similar medical facilities
• Public transit
• Gatherings that require a permit
• Places of worship
• Financial institutions
• Parking areas and similar areas connected to those places.

Locations where concealed carry by permit holders is prohibited:

• Bars and restaurants that serve alcohol
• Playgrounds
• Youth centers
• Parks
• Athletic areas and athletic facilities
• Most real property under the control of the Department of Parks and Recreation or the Department of Fish and Wildlife
• Casinos and similar gambling establishments
• Stadiums and arenas
• Public libraries
• Amusement parks, zoos, and museums
• Parking areas and similar areas connected to those places; and all parking areas connected to other sensitive places listed in the statute.

    Importantly, the appellate court rejected the State’s asserted legal standard for applying Bruen. “For their part, Defendants suggest that, if a place shares some characteristic with one of the sensitive places identified by the Supreme Court, then that place, too, necessarily is a sensitive place—without much, or any, need to show relevant historical analogues. That view also is inconsistent with Bruen.” Instead, the court concluded:

    “[T]he proper approach for determining whether a place is sensitive is as follows. For places that have existed since the Founding, it suffices for Defendant to identify historical regulations similar in number and timeframe to the regulations that the Supreme Court cited as justification for designating other places as sensitive. For places that are newer, Defendant must point to regulations that are analogous to the regulations cited by the Court, taking into account that it is illogical to expect a government to regulate a place before it existed in its modern form. For example, it makes little sense to ask whether the Founders regulated firearms at nuclear power plants.”

    Citing United States v. Rahimi, 144 S. Ct. 1889 (2024), the court further explained that “for both types of places, historical regulations need not be a close match to the challenged law; they need only evince a principle underpinning our Nation’s historical tradition of regulating firearms in places relevantly similar to those covered by the challenged law.”

    The decision is notable for upholding significant Second Amendment rights, which is a rare occurrence in the Ninth Circuit. However, the split opinion will likely leave all parties dissatisfied. If there is not an an banc review of this opinion, the matter will proceed to a hearing on the merits.     

PERB Denied the County of Sacramento's Request for an Injunction Against the Attorney Strike

On August 26, 2024, the members of the Sacramento County Attorneys’ Association (SCAA), representing prosecutors and public defenders began a strike.  The strike resulted from the County of Sacramento disregarding a Fact-Finding Panel recommended 5.5% wage adjustment to keep pace with neighboring jurisdictions. SCAA President Matt Chisolm noted "the workloads are too high, and the pay is too low." 

Sacramento County District Attorney Thien Ho echoed those concerns stating, “I think it’s about time that the county’s CEO sit down and really try to resolve this issue because we have the best DA’s office, I think, in the entire country. But I’m having problems recruiting and retaining people because we need better fair wages and benefits for them.”

On September 4, 2024, victim advocates and public safety representatives publicly asked the Sacramento Board of Supervisors to end the strike by accepting the Panel’s wage recommendations. The District Attorney excoriated the County's negotiation tactics and offensive offers. Thien Ho further called on the County to submit an initiative to voters that would bar striking in exchange for enacting a binding arbitration procedure to resolve future contract impasses.

On Tuesday September 3rd, the County filed for an injunction with Public Employment Relations Board (PERB) falsely claiming the impasse was broken by its predictably unacceptable offer of a 3% salary increase offset by the elimination of the County’s 3% deferred compensation match (a financial wash) and SCAA waiving its right to strike. The County also asserted the strike imperiled public safety without evidence supporting its self-serving claim.

Today PERB issued an order denying the County’s Request. PERB’s general counsel noted the County failed to demonstrate sufficient grounds for injunctive relief.  This ruling vindicates the rights of public employees to legitimately assert economic pressure through a strike when their employing agency drives the parties to impasse and/or commits unfair labor practices.

Attorney Kathleen Mastagni-Storm and Consultants Stephen Leonesio and Stacie Casabian of Mastagni Holstedt APC represented the SCAA in bargaining and fact-finding and Taylor Davies-Mahaffey joined in the opposition to the TRO. 

CAHP's Bargaining Team Secures Three Year Contract Worth Nearly $500 Million in Salary Increases and Enhanced Pay Incentives

We are pleased to announce that on August 15, 2024, the California Association of Highway Patrolmen (CAHP) agreed upon a three (3) year contract extension (MOU) with the State of California worth approximately $489.1 million.  The labor contract provides the membership an immediate 4% salary increase (and additional annual adjustments based on a salary formula set forth in Govt. Code section 19827) and significant increases in specialty and assignment pays.

In early spring of 2024, the CAHP and the State of California began the collective bargaining process. Labor relations consultants Stephen Leonesio and Stacie Casabian, of Mastagni Holstedt, A.P.C., worked with the CAHP negotiations team through bargaining with the State. The CAHP negotiations team consisted of Jake Johnson, President of CAHP, Richard Fisher, CEO of CAHP, Omar Hernandez, Secretary Treasurer of CAHP, Axel Reyes, District Representative for CAHP, and Amber Karuzas staff of CAHP, sought out to reach an agreement that would safeguard the parity statute and retirement benefits, while providing enhanced benefits aimed towards boosting recruitment and retention. 

The parties faced a difficult round of negotiations due to the tough budget cycle for the State. It is no secret that while the State of California has been experiencing projected budget deficits, the State has been unable to maintain adequate staffing for the CHP with about one in six positions unfilled. Since January 2024, the State has projected a growing budget deficit and has been employing creative measures to balance the State’s budget. Despite the difficult financial circumstances, CAHP remained committed to addressing these staffing concerns by both maintaining current benefits, but also establishing new compensation terms that would promote recruitment and retention, support departmental growth, and enhance services to the community.

Formal table bargaining began late May 2024, and ended with a tentative agreement between the parties in early August 2024. Negotiations was an intense process, which incorporated a high-level of experience from both the CAHP and the State. With the leadership of President Jake Johnson and his team, as well as the experience of Mastagni consultants Leonesio and Casabian, the team connected its proposals to addressing actual member and CHP difficulties to bargain for incentives relevant to issues officers are experiencing while on patrol. The bargaining team prioritized securing pays and benefits that to remedy CHP's staffing crisis and vacancy rates.

Ultimately, the parties came to a lucrative agreement that protected the general wage increase provided by California Government Code § 19827. The parties engaged in extensive analysis and discussions over the interpretation of the Government Code, particularly focusing on the proper survey methodology for determining the average total compensation of the comparable agencies. This resulted in an agreement for a 4% general wage increase. 

Beyond the general wage increase, the CAHP successfully bargained to enhance specialty assignments and certifications that expand services to the community. The following is a snapshot of some of the increased special pay provisions:

• Bilingual Pay shall increase from $100 per month to $125 per month.
• Pay for canine handlers shall increase from $156.55 per month to 4 percent of base salary per month for the care and maintenance of their assigned canine.
• Field Training Officer Pay shall increase from 5 to 7 percent of base salary when assigned.
• Investigator Pay shall increase from $50 per month to $250 per month.
• Motorcycle Pay shall increase from 4 to 5 percent of base salary per month.
• Paramedic Pay shall increase from $50 per month to $200 per month.
• Officer in Charge Pay shall increase from 5 to 7 percent of base salary when assigned.

In addition, the agreement provides several new compensation terms and benefits to CAHP members. The new MOU will provide Senior Officer Pay in the amount of 10% of base salary at 27 years of service and 12% of base salary at 28 years of service. The goal of the additional percentage to Senior Officer Pay is to incentivize members who have long-term valuable institutional knowledge to stay with the Department beyond 28 years of service, as well as reward officers who have dedicated 27 or 28 years to the citizens of the State of California. 

The MOU will also provide a new provision for Detective Incentive Pay of $500 per month. This will enhance Detective services provided by the CHP by increasing officers' interest in becoming involved in detective work and promoting retention of valuable training and knowledge. The contract will provide an incentive for Resident Post Pay in the amount of $600 per month. This pay incentivizes officers to undertake the expenses and personal disruptions associated with moving to a new location in need of rural CHP law enforcement services. 

The last new economic benefit provided by the agreement is the Drug Recognition Evaluators (DRE) Incentive Pay. All officers who qualify for DRE will receive a one-time payment of $1500. The goal is to expand the DRE services throughout the CHP and provide enhanced services to protect the safety and security of citizens.

Finally, the new MOU provides a provision which may serve as a turning point for the health and longevity of CHP officers by reimbursing officers who choose to wear load bearing vests, once an appropriate load bearing vest is approved by the Department. “My favorite new provision of the contract is not even a big-ticket item.  It is the load bearing vest!" stated President Johnson.  He also noted that "[t]his is the best working condition improvement I have seen during my 23 years with the CHP.  This will be a huge cost savings to the state, as worker’s comp. claims for back and hips will no doubt see a decent size reduction”

Over the years, many law enforcement agencies throughout the state have moved towards the utilization of load bearing vest. Typical safety equipment officers carry to effectuate their duties weights around 30 pounds. Studies have shown carrying this weight on an officer’s belt can have extremely negative impacts on their lower-back and hips. This can drastically reduce an officer’s ability to withstand a long-term career as a uniformed officer.  The intention of the load bearing vest is to redistribute weight of the officer’s equipment from the belt to the load bearing vest to reduce the damage to the officer's lower-back and hips and promote a healthier long-term career. Securing the reimbursement for approved load bearing vests is a significant benefit to promote healthy long-term careers at CHP. 

The new agreement provides other non-monetary items intended to improve officers' working conditions. For example, schedules shall be posted sooner to enhance the work and home life balance. Several MOU sections were also revised to conform to new laws. 

President Johnson stated that "this contract is win-win for Californians and my membership. The increases provided by this agreement will assist the CHP in restoring adequate staffing to protect the public and provide our members increases necessary to  provide a middle class lifestyle for their families." 

Johnson thanked his bargaining team for their tireless efforts, as well as the representatives of the State and CHP for working collaboratively to reach an agreement. 

This agreement provides $83.4 million dollars of new money to officers in the first year, and nearly $500 million over the three (3) year budgetary cost.    

Representing approximately 15,000 current and retired California Highway Patrol sworn personnel, the CAHP has been the exclusive representative of active-duty officers for over 104 years. 

As general counsel, Mastagni Holstedt, APC was privileged to represent the CAHP during this successful round of labor negotiations. Our firm is proud to protect the first responders who protect all of us.

California Supreme Court Rules Public Employers Exempt from PAGA Penalties & Meal Period/Rest Break Requirements

    On August 15, 2024, the California Supreme Court ruled in Stone v. Alameda Health System, 2024 WL 3819163, that California public employees do not enjoy the same wage and hour protections the state affords private sector workers. The Court ultimately held that the Legislature exempted public employees from various Labor Code provisions, including the right to meal periods and rest breaks, as well as Private Attorneys General Act (PAGA) penalties.

    Employees of a public hospital brought a class and PAGA representative action alleging multiple violations of the California Labor Code, including: (1) failure to provide off-duty meal periods, (2) failure to provide off-duty rest periods, (3) failure to keep accurate payroll records, (4) failure to provide accurate itemized wage statements, (5) failure to pay wages, (6) failure to timely pay wages, and (7) civil penalties for these violations under PAGA (§ 2698 et seq.).  The Defendant filed a motion to dismiss the action asserting that public employers are exempt from the wage and hour claims at issue and not an employer within the PAGA. The motion was granted and partially reversed by the appellate court prior to the Supreme Court granting review.

    Noting “provisions of the Labor Code apply only to employees in the private sector unless they are specifically made applicable to public employees”, the Court concluded the Legislature intended to exclude public employees from the protections governing meal and rest breaks and related statutes governing full and timely payment of wages. The Court further explained that California wage and hour laws are governed by “two complimentary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders, adopted by the IWC.”

    In finding public employees exempt from the laws governing breaks and meal periods, the Court noted that while the Labor Code did not define employers, the wage order incorporated a definition that  does not include governmental employers. Because the Labor Code did not expressly include public employers, public employers have no obligation under the Labor Code to provide meal and rest breaks.  As such the claims in the lawsuit were not viable, including the claims that were derivative of those allegations.

    The Court also ruled that the definition of employer in the PAGA statute mirrored that of the other claims. Noting that PAGA civil penalties have a punitive or deterrent aspect, the Court stated “we would expect the Legislature to have more clearly communicated any intention to impose PAGA penalties on public employers” given that the penalties would be paid by tax-funded revenues.  

    The Court suggested a Legislative correction of the rules for thee and not for me double standard of denying public employees the wage and hour protections afforded to other California employees. “If the Legislature intends otherwise, it is of course free to amend the relevant statutes or pass new legislation to provide for a different result.” Perhaps a future Legislature will do so.

California Court of Appeal Overturns Suspension as an Abuse of Discretion, Despite Upholding Misconduct Charges

             In Alailima-Millon v. Los Angeles County Superior Ct. No. B326373, 2024 WL 3271129 (Cal. Ct. App. July 2, 2024), a California Court of Appeal issued a rare opinion reversing the penalty in a 1094.5 administrative writ of mandate proceeding. The appellate decision is notable because penalty determinations are reviewed for abuse of discretion, as opposed to the independent judgment typically applied to factual findings and conclusions.  

Based on differing standards of review, a court is much more likely to reverse findings of misconduct culpability rather than a penalty. That is because, once misconduct is affirmed, the burden to reverse the penalty is a demanding one: “if reasonable minds can differ with regard to the propriety of the disciplinary action” the court will find no abuse of discretion.[i] Therefore, an examination of Alailima-Millon provides helpful insights and guidance for challenging an excessive penalty.

 Facts of the Case

Joy Alailima-Millon has been employed by the Los Angeles County Superior Court (LASC) since 1990 and has been a Judicial Assistant since 2008. She consistently received positive performance reviews but had incurred a one-day disciplinary suspension in 2014 for failing to recall a bench warrant, which led to an individual's erroneous arrest and detention for one day. 

 In 2017, Alailima-Millon received a three-day unpaid suspension for preparing an incorrect commitment order that resulted in a criminal defendant being over-detained for six days. The error was due to an inaccurate comparison of pre-sentencing custody credits (calculated in days) and the sentence (calculated in months). The judge, as well as the defense and prosecution attorneys, also failed to realize the defendant should be released and had actually agreed that the calculations were correct. Nevertheless, it is a duty of the Judicial Assistant to determine whether a release should be issued and confirm with the court. The Manual of Procedure for Superior Court Clerks/Judicial Assistants specified, “Errors that deprive any person of liberty, jeopardize public safety, or delay the criminal justice process will subject the Judicial Assistant to disciplinary action.”

The mistake was eventually identified by defense counsel, who communicated the issue to Alailima-Millon. She immediately notified the judge, processed a release order for the defendant, and self-reported the situation to the court operations manager. She met with LASC performance investigators and provided a statement about the incident. She was served with a notice of proposed discipline, participated in a Skelly hearing, and was issued a final order of discipline with the three-day suspension. Alailima-Millon appealed to advisory arbitration. 

Advisory Arbitration Recommends Suspension

At arbitration, LASC witnesses testified regarding the training and duties of judicial assistants, focusing on the responsibility to calculate custody credits and issue correct paperwork. They highlighted that over-detention is a significant error because it deprives a person of their freedom and impacts public trust. Additionally, based on Alailima-Millon’s prior one-day suspension, the three-day suspension was considered “progressive discipline for custody paperwork errors.” 

By contrast, Judge Victor Wright came to Alailima-Millon’s defense. He testified that, in his courtroom, judicial assistants only prepare release orders when expressly instructed to do so. The judge also verified that both the prosecution and defense attorneys approved the incorrect calculations. In previous written communications to the court operations manager, Judge Wright explained Alailima-Millon “took the blame, somewhat unfairly,” and that she “handled the entire matter with grace and aplomb, and did not point the finger at anyone else, though she had every right to do so.” At arbitration, another judicial officer provided corroborating testimony that she had not calculated sentence credits as one of her job duties. 

The arbitration hearing officer concluded the discipline and penalty were warranted because Alailima-Millon did not seek clarification from the court regarding the custody status. The hearing officer cited a failure to take responsibility for the error, the severity of the offense resulting in deprivation of liberty, the procedure manual's description of responsibilities and notice of discipline, and LASC’s use of progressive discipline. LASC adopted the hearing officer's decision. Alailima-Millon filed a petition for writ of mandate. 

Superior Court Denies Petition for Writ of Mandate

The superior court denied the petition, finding there were no facts in dispute and that Alailima-Millon's undisputed conduct provided cause for discipline. Further, the superior court determined the three-day suspension was not an abuse of discretion given the seriousness of the error. Alailima-Millon appealed the superior court's denial of her petition for writ of mandate.

Court of Appeal Reverses Penalty

The Court of Appeal ruled the record contained substantial evidence to support the superior court's conclusion that the weight of the evidence supported the hearing officer's finding that LASC had cause to discipline Alailima-Millon. Accordingly, the court affirmed those findings.[ii]

However, its review of the penalty came to a different conclusion. A Court of Appeal independently reviews the agency's determination of penalty, without deference to the superior court's ruling, and decides whether the agency abused its discretion, i.e., whether the penalty is “arbitrary, capricious or patently abusive.”[iii] The court recognized that its “authority to review LASC's penalty for Alailima-Millon's misconduct is ‘quite limited’ and ‘exercised ... with great deference to the administrative agency's findings.’” In public employee discipline, “the overriding consideration . . . is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.”[iv]

The Court of Appeal acknowledged the seriousness of the error that resulted in the deprivation of an individual’s freedom and its impact on public trust. However, even applying the highly deferential review standard, the appellate court held the three-day suspension was an abuse of discretion. The court found that the arbitrator conflated Alailima-Millon's exercise of her right to challenge the discipline and penalty through the grievance, arbitration, and litigation process with denial of responsibility. The evidence showed that when she was notified of the error, she immediately notified the judge and self-reported to LASC management. The appellate court found her description of the circumstances to be reasonable explanations for her actions rather than an attempt to shift blame.

Furthermore, the Court of Appeal found there was no substantial evidence supporting progressive discipline or suggesting a likelihood of recurrence. Although the two relevant disciplinary actions were based on serious events affecting an individual's liberty, the court distinguished the level of culpability. The previous conduct of failing to follow a clear instruction to recall a bench warrant is “fundamentally different” than the “ambiguous circumstances” here.

The appellate court recognized a reviewing court cannot interfere with a penalty imposed by an administrative agency “because in the court's own evaluation of the circumstances the penalty appears to be too harsh.”[v] However, the court stated, “that does not mean the three-day suspension penalty imposed on Alailima-Millon was justified by the evidence before the arbitrator.” In sum, the Court of Appeal affirmed the determination that LASC had cause to discipline Alailima-Millon. However, it reversed the three-day suspension penalty and directed the superior court to remand to LASC to reconsider what penalty, if any, is justified under the circumstances.

Takeaways

            Based on the infrequency of administrative penalty reversals, Alailima-Millon should be analyzed closely. The court’s dismantling of the penalty justifications related to blame-shifting and progressive discipline can likely be applied in many disciplinary proceedings. Although unpublished, the Opinion offers an understanding of the considerations and reasoning of courts in reviewing penalty determinations.  The unanimous reversal also provides hope that despite the high legal burden, penalty determinations can be successfully challenged under the right factual circumstances.  

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[i] Deegan v. City of Mountain View (1999) 72 Cal. App. 4th 37, 46.

[ii] Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 810-811; Civ. Proc. Code § 1094.5(c).

[iii] Griego v. City of Barstow (2023) 87 Cal. App. 5th 133, 139.

[iv] Skelly v. State Pers. Bd. (1975) 15 Cal. 3d 194, 218.

[v] Yazdi v. Dental Bd. of California (2020) 57 Cal.App.5th 25, 46.